The Re-election of India’s Judge Bhandari to the ICJ and Changing Multilateral Trends

A press release from the International Court of Justice (ICJ) on November 21, 2017, confirmed the re-election of India’s Justice Dalveer Bhandari (incumbent, since April 27, 2012) as a member of the highest court of the world for a nine-year term, while the United Kingdom withdrew Judge Christopher Greenwood’s (incumbent, since November 6, 2008) candidacy.

Based at The Hague’s Peace Palace in the Netherlands, the ICJ recently saw the appointment of five judges out of six candidates. In addition to the re-election of Justice Bhandari, the re-election of three other Judges, namely Ronny Abraham (France), Abdulqawi Ahmed Yusuf (Somalia) and Antônio Augusto Cançado Trindade (Brazil), and the appointment of a new Member on the Bench, Mr. Nawaf Salam (Lebanon) also took place.

Also known as the “World Court,” the ICJ serves as the platform to settle inter-State disputes and to give advisory opinions on legal questions referred to it by the UN organs. Although the election of the one-third of the ICJ judges happens every three years with a possibility of re-appointment, this recently culminated exercise is very exceptional in the ICJ’s history. The principal judicial organ of the United Nations, the ICJ, for the first time since its establishment in 1945, will not have a judge from the United Kingdom, a Security Council’s permanent (P5) member.

Article 2 of the ICJ statute calls for the election of independent judges with high moral character and recognized competence in international law, who are elected regardless of their nationality and per Article 9 of the ICJ Statute, there is no such geographical stipulation for nominating the judges. Yet, in practice, the makeup of the apex court of the world invariably mirrors the organization of the Security Council, with respective and perpetual nominations on the ICJ bench from each P5 country.

The general trend reflected a distribution of the fifteen seats, geographically: Africa (3), Latin America and the Caribbean (2), Asia (3), East European States (2), and West Europe and Other States (5).

The ballot on the judge’s election to the ICJ bench must go through after attaining the majority of the votes in both the Security Council and the General Assembly of the United Nations, which often extends to a number of voting rounds until the candidate obtains majority votes in the Security Council as well as the General Assembly. The election of the four judges from France, Somalia, Brazil, and Lebanon came through in the fifth round of voting, but the fifth post remained vacant even after six rounds of voting.

Pursuant to a number of voting rounds, while Justice Bhandari secured the majority of the votes in the General Assembly, UK’s Judge Greenwood possessed the support from the majority of the Security Council members.

A deadlock ensued in the contentious re-election fight following the inability to manage a majority in both the organs despite a number of rounds. Eventually, the UK pulled out of the race and India’s Justice Bhandari secured a victory after winning in the voting held separately and simultaneously in the General Assembly and the Security Council.

Although the British newspapers have lamented this development as a humiliating blow to the country’s diplomatic prestige, the UK has gracefully congratulated Justice Bhandari while expressing the contentment to see their “close friend” India win. UK Ambassador Matthew Rycroft stated, “The UK has concluded that it is wrong to continue to take up the valuable time of the Security Council and the UN General Assembly with further rounds of elections . . . We are naturally disappointed, but it was a competitive field with six strong candidates.”

The UK has been one of the countries, which has generally stood for the norms of the ICJ and has not been averse to submitting to the ICJ jurisdiction. The UK may make a comeback three years down the road in the ICJ’s next election cycle, yet this turn of events (121 votes in UN General Assembly for India as compared to 68 for the UK in the last voting round) has also caused apprehensions about the country’s diminishing stature on the global platform post-Brexit.

In another matter of six months ago, whereby the UN General Assembly sought the ICJ’s advisory’s opinion related to the Chagos Islands, the archipelago in the Indian Ocean, the Assembly saw a recorded vote of 94 in favor and 15 against on Mauritius’ request against the UK’s colonial clenching of the islands.

Interestingly, 65 countries abstained from voting on that matter, including many west European countries such as France, Germany, Spain, Denmark, Belgium, Netherlands, and Switzerland. After leaving the EU, the UK may resist from indulging compulsions from its former EU associates on such matters.

Nonetheless, post-Brexit, the UK’s trade relationship with India see an upward drift and, thus, seem to benefit the British Isles, in return. A possible FTA between the two countries is also doing the rounds.

For India, this was an exceedingly challenging election as unlike other candidates such as Lebanon’s Nawaf Salam who had declared his candidacy two years ago and had more time to campaign (and, thus his win came through relatively easily in addition to him being well-known in the circles due to his earlier engagement as Lebanon’s Permanent Representative to the UN), India’s candidature was made known as late as the last week of June, only a week prior to the deadline. As a result, it was an extremely difficult competition for India, particularly when it had to garner support from the international community for Justice Bhandari’s reelection.

Although two other Asian countries, China and Japan have been nearly constant on the ICJ, prior to Justice Bhandari, India on three earlier occasions, had their permanent judges on the ICJ bench (Sir Benegal Rau [1952-53], Nagendra Singh [Judge, 1973-1988; Vice President, 1976-1979; President, 1985-1988], and Raghunandan Swarup Pathak [1989-1991]). This time, however, the aspect that draws particular attention is that a P5 member has been dislodged and an Asian country came to occupy that seat.

In terms of the global institutions being representative of the world at large, it is pertinent for India, which is home to 17 percent of world population (1.3 billion people) and world’s seventh-largest economy, to mark a greater presence. Indeed, the proactive line India’s foreign diplomacy machinery has also displayed a tangible upshot with reference to the recent election of India’s Neeru Chadha to the International Tribunal for the Law of the Sea (ITLOS). That said, pursuant to the appointment to such international offices, the appointees are deemed to work in their personal capacity as legal experts, independent of the country they represent.

International law governance entails the sacrosanct principle of sovereign equality among nations. Still, the UN’s most powerful body, the Security Council, has long been facing criticisms inter alia over its use of veto power in addition to the P5’s eternal right of representation in it.

The calls for the reformation of the Security Council to make it more representative and equitable are not a secret. Moreover, the expansion of the ICJ bench is another subject of such reforms, given the increase in its workload. Nevertheless, the recently culminated ICJ elections again endorse the UN General Assembly as the voice of the world.

Multilateralism, currently, is facing testing times, particularly in the wake of the withdrawal of countries from various international development organizations such as the United Nations Educational, Scientific and Cultural Organization (UNESCO), United Nations Industrial Development Organization (UNIDO), and the United Nations Population Fund (UNFPA). The US withdrawal from the Trans-Pacific Partnership (TPP) is also perceived as a move away from multilateralism. The global order certainly needs to contemplate more on these concerns.