Insights into Editorial: The numbers game — On India’s victory at the ICJ

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Insights into Editorial: The numbers game — On India’s victory at the ICJ


Context:

The International Court of Justice (ICJ), the highest judicial body having trans-national jurisdiction, is in the process of filling a clutch of vacancies, with the terms of five serving judges coming to an end. Dalveer Bhandari, an incumbent who represented India at the ICJ has been re-elected. The import of India’s efforts at securing a place at the high table of global jurisprudence should be seen in the backdrop of the Kulbhushan Jadhav case, which is currently pending before the court.

The election of Justice Dalveer Bhandari to the International Court of Justice for a second term is a major diplomatic success for India.

What is the ICJ?

The International Court of Justice commonly referred to as the World Court, ICJ or The Hague is the primary judicial branch of the United Nations (UN).

  • The International Court of Justice (ICJ) started work in 1946, after half a century of international conflict in the form of two World Wars.
  • The ICJ has its seat at The Hague, the Netherlands, and has the jurisdiction to settle disputes between countries and examine cases pertaining to violation of human rights according to the tenets of international law.
  • The statute of the ICJ regulates the functioning of the Court.
  • All members of the UN are automatic parties to the statute, but this does not automatically give ICJ jurisdiction over disputes involving them.
  • The ICJ gets jurisdiction only on the basis of consent of both parties.

The ICJ has passed many landmark judgements, but the execution of its verdicts have often been hindered by the skewed balance of power in the United Nations wherein enforcement is subject to veto by permanent members of the Security Council.

Despite inadequacies in overturning the hurdles erected by members with veto power, the ICJ remains the apex court in settling disputes between nations.

How are judges elected?

The ICJ has a total strength of 15 judges who are elected to nine-year terms of office.

  • They are elected by members of the United Nations General Assembly and the Security Council, where polling takes place simultaneously but independent of each other.
  • In order to be elected, a candidate must have an absolute majority in both bodies, which often leads to much lobbying, and a number of rounds of voting.
  • In order to ensure a sense of continuity, especially in pending cases, elections are conducted triennially for a third of the 15-member Court.
  • Judges are eligible to stand for re-election.
  • Elections are held in New York during the autumn session of the United Nations General Assembly, and the elected judges enter office on February 6 of the subsequent year.
  • After the Court is in session, a President and Vice-President are elected by secret ballot to hold office for three years.
  • If a judge were to die in office, resign, or be incapacitated to perform the duties expected of her, a special election is held as soon as possible to fill the vacancy for the unexpired duration of her tenure.

The Court also adheres to a rigid ethno-cultural matrix to ensure that it is representative of the ‘main forms of civilization and the principal legal systems of the world.’ This internal arithmetic is maintained at every election to the ICJ. Of the 15 judges, it is mandated that three should be from Africa, two from Latin America and the Caribbean, three from Asia, five from Western Europe and other states, and two from Eastern Europe.

Re-election of Justice Bhandari as ICJ judge

Five of the 15 judges of the ICJ are elected every three years. This year there were six candidates for five slots.

While four candidates were elected smoothly, Justice Bhandari and Christopher Greenwood of the United Kingdom ended in a dead heat as the former won the UNGA and the latter the UNSC in multiple rounds of voting.

The U.K. wanted to end the voting and move to a conference mechanism, which involves selecting a panel of three UNGA members and three UNSC members, who would then elect the judge.

This mechanism has never been used before. India opposed the move, and the U.K. could not gather adequate support for its demand in the UNSC.

The U.K. then withdrew its candidate, paving the way for Justice Bhandari’s re-election. India and the U.K. had staked considerable diplomatic goodwill in the election, and the outcome is significant politically for both.

Britain’s loss in ICJ is reflective of failure of diplomacy

The UK will not have a judge on the bench of the International Court of Justice for the first time in its 71-year history.

It is also the first time that a permanent member of the UNSC has lost at the ICJ on a vote.

For British Prime Minister the loss comes at a difficult time as she struggles with the process of leaving the European Union and with her own leadership coming under assault from Conservative MPs.

In this context, the loss at the ICJ is being read as confirmation of the U.K.’s diminishing role in global affairs.

As America’s inseparable and unquestioning junior partner, the country had asserted its relevance in the post-War order even as its military and economic power eroded.

What this election means, why it matters

  1. A worrisome precedent for P5 countries:The prospect of India winning against a P5 member through democratic means was something that this elite club of veto-wielding countries – Britain, China, France, Russia, and the United States – was unnerved with, because this would set a precedent that they did not want to see repeated.
  2. UNGA’s vote in India’s favour reflects new global order: In the 11 rounds of the election, Bhandari had been receiving the support of nearly two-thirds of the members of the General Assembly but was trailing by three votes against Greenwood in the Security Council.

According to reports, the voting in the General Assembly, which overwhelmingly favoured India, is reflective of the new global order, which is not pleasant to the world powers. 

  1. Trade with India could have played a role:The fact that India could emerge as a “more significant trading partner” after the UK’s exit from the European Union, or Brexit, could have contributed to the decision to withdraw. 

Take away for India

Earlier, the 11-judge bench of the International Court of Justice (ICJ) at The Hague unanimously agreed to accept India’s plea against Pakistan’s death sentence to Kulbhushan Jadhav.

The bench led by Judge Ronny Abraham asked Pakistan not to execute Kulbhushan Jadhav till the final verdict in the case is not pronounced by the International Court of Justice.

Now this election for India, soon after its failure to gain membership to the Nuclear Suppliers Group, the lobbying for the ICJ election has different lessons.

  • With all five permanent members of the UNSC fiercely locking arms to protect their collective interest of dominating the world body, India’s success was built primarily on the support of developing countries, among which it has nurtured goodwill over the decades.
  • Japan also appeared to align with the P-5.
  • India’s call for a more equitable world order has a better resonance among developing countries than the custodians of the current order.
  • India’s support in the UNGA was expanding with subsequent rounds of voting, a reality the U.K. and the U.S. could not brush aside.

For India, the takeaway is clear: to find a louder global voice, it also needs to put more emphasis on ties with countries away from the high table. India’s victory at the ICJ reinforces the importance of small power diplomacy.