New Delhi: The battle to elect a judge from between the Indian and British candidates for the remaining vacant seat at the International Court of Justice has left the UN’s two principal chambers at loggerheads, prompting experts to go look to the court’s statute for ways of reaching a possible resolution if the deadlock remains unbroken.
In five rounds of voting held over three hours on Monday afternoon in New York, the UN Security Council (UNSC) and UN General Assembly (UNGA) gave differing ‘absolute majorities’ to the two candidates.
After convening at 3 pm, the UNSC, the UN’s top-tier 15-member body, maintained a voting margin that did not change over five rounds – nine votes for Christopher Greenwood and five for India’s Dalveer Bhandari. One UNSC member abstained in all rounds. The votes are secret but British and Indian diplomats have a fair idea of the way each country on the council is voting.
The 193-member UNGA, however, repeatedly gave Bhandari a comfortable majority, with Greenwood’s numbers much below the minimum limit of 97 votes. Bhandari, a former Indian Supreme Court judge, secured between 110 to 121 votes, while Greenwood’s votes ranged from 68 to 79.
Between the first and the last round on Monday, Bhandari’s lead increased from 31 to 53 votes. In the fifth round of voting, Bhandari got 121 votes to Greenwood’s 68 – which effectively meant that despite whatever lobbying London might have engaged in, 11 countries had transferred their votes towards the Indian judge since the first round. Three countries abstained in the UNGA in three of five rounds, where again the ballot is secret.
As per article 10 (1) of the ICJ statute, only those candidates who get an absolute two-thirds majority in both the UNGA and UNSC are deemed as elected to the world court.
Last Thursday, members of the UNGA and UNSC gave absolutely majorities to four out of the six candidates in the fray for five ICJ judgeships. This was an unexpected result, as according to unwritten norms of geographical representation, the only contest at ICJ was expected to be for the Asian seat between incumbent Bhandari and challenger Nawaf Salam from Lebanon.
Instead, the election for the last remaining seat has turned into a stand-in for the tensions between the UNSC and UNGA – as well as a pushback against the entrenched privileges enjoyed by the council’s five permanent members (P-5).
There are no provisions in the ICJ statute per se, but P-5 countries have always maintained a member in the court since its post-war formation. The UK certainly has an unbroken record of having a citizen as a member of the ICJ since 1946.
The only P-5 country to have not been a continuous member of the ICJ is China; there was no Chinese judge for 18 years between 1967 to 1985, essentially because China did not field a candidate.
Therefore, Greenwood’s support in the UNSC is not a surprise, with all five permanent members rallying together for the UK judge.
Deadlocked at the end of Monday, the UNGA and UNSC decided to hold another meeting in line with Article 11 of the ICJ statute. However, the date has not yet been announced.
However, there are no signs as yet of the UNSC members ‘caving in’ to the UNGA or vice versa. In other instances of stalemate in previous elections, candidates who had got a majority in the UNGA eventually got the seat. But those were fights that did not involve a P-5 nation.
If the deadlock in the present Bhandari v Greenood, or India v UK, continues, Article 12 of the ICJ charter draws a path for reaching a decision:
If, after the third meeting, one or more seats still remain unfilled, a joint conference consisting of six members, three appointed by the General Assembly and three by the Security Council, may be formed at any time at the request of either the General Assembly or the Security Council, for the purpose of choosing by the vote of an absolute majority one name for each seat still vacant, to submit to the General Assembly and the Security Council for their respective acceptance. [Article 12(1), ICJ statute]
So far, none of the ICJ elections have resorted to the joint conference method. The first and last time that it was deployed was to break a deadlock in the League of Nations’ Assembly and Council to recommend a candidate to the Permanent Court of International Justice (PCIJ) in 1921.
Article 12 of the ICJ statute has been directly taken from PCIJ’s regulations, which itself drew from the traditions of American constitutional law.
“The typical situation that drafters of Article 12 had in mind was a confrontation between the council and the assembly that would occur because of a clash of interests between the ‘great powers’ dominating the council on the one hand, and the smaller states having a majority in the assembly,” wrote German law professor Bardo Fassbender in The Statute of the International Court of Justice: A Commentary.
The UN’s Office of Legal Affairs said in an advisory opinion in 1984 that a joint conference was not a compulsory next step and each UN body could decide whether to proceed to a joint conference or continue with more meetings.
“It is the view of the Office of Legal Affairs that to proceed to a fourth or fifth meeting is a more normal procedure than a joint conference,” the UN’s legal department opined.
In 2014, Patrick Lipton Robinson of Jamaica and Susana Ruiz Cerutti of Argentina were locked in battled for the fifth remaining seat when the elections were held on November 6.
The next day, there were 10 rounds of voting, but there was no resolution, with Robinson getting absolute majority in the UNGA, while Ceruttti (backed by the P-5) kept getting approved by the UNSC. Deadlocked, the two chambers called for another meeting on November 17, rather than go for a joint conference as proposed in Article 12 (1). However, there was no meeting on November 17, as Argentina withdrew Cerutti from the race.
Similarly, in November 2011, UNGA consistently gave more votes to Julia Sebutinde of Uganda, while Abdul Koroma of Sierra Leone got absolute majority in the United Nations Security Council.
Even then, UN members went for another meeting – almost a month later in December 2011. Sebutinde obtained exactly the absolute majority in General Assembly, while Koroma was short of that minimum limit by four votes. The Security Council changed its tack and endorsed Sebutinde with nine votes
A key reason is that the joint conference process suggested in the statute has a lot of legal ambiguities.
There is no direction in the statute on how the UNGA will decide on the request for a conference – whether it would require a simple or absolute majority of votes. Further, there is no clarity on how the three countries will be chosen from among the 193-member body.
As per records, the criteria used in 1921 was that the countries chosen to represent the assembly should not have a direct interest in the outcome, should not be member of UNSC and must represent “different systems in law”.
If the UN does proceed with the joint conference, Article 12 (3) states that the six members could even suggest a candidate who was not on the list of nominations. But, if the conference doesn’t also agree on a candidate, then the members of the world court can proceed to select the candidate from the nominees. In case there is a stalemate in the number of votes once again, the eldest judge in the ICJ will have the casting vote, according to Article 12 (4) of the statute.