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How India pulled it off

No observer could have anticipated that the triennial United Nations election for five judges to the International Court of Justice (ICJ) would conclude in such dramatic fashion, striking a historic blow to the privilege system devised by the Permanent 5 (P5) members of the UN Security Council (SC) for themselves and unmistakably signalling the will of an assertive India.

How India pulled it off

HISTORIC WIN: India''s Permanent Representative to the UN Syed Akbaruddin speaks during a reception in the honour of Justice Dalveer Bhandari (L) at the United Nations in New York. pti



Vivek Katju 

Former secretary, Ministry of External Affairs 

No observer could have anticipated that the triennial United Nations election for five judges to the International Court of Justice (ICJ) would conclude in such dramatic fashion, striking a historic blow to the privilege system devised by the Permanent 5 (P5) members of the UN Security Council (SC) for themselves and unmistakably signalling the will of an assertive India. How did this happen?

The stage is set

The ICJ judges are elected through a complex voting system in both the General Assembly (GA) and the SC; a successful candidate must secure a majority in both. For the 2017 election this meant 97 in the former and eight in the latter. The ICJ statute requires that the Court should be representative of different civilisations and legal systems. However, by convention, it has reflected the geographical distribution of the SC. Thus, the P5 effectively arrogated five seats for themselves though they embedded them in informal regional quotas and the remaining 10 were divided thus: two to Asia, Latin America and Western Europe and others group, three to Africa and one to Eastern Europe.

This year five retiring judges — from France, Britain (Christopher Greenwood), Brazil, Senegal and India (Justice Dalveer Bhandari) — were re-nominated for election and, in addition, Lebanon put forward its Permanent Representative to the UN, Nawaf Salam, as a candidate. Given the convention, it was widely expected that the real contest would be between Bhandari and Salam, the other four were expected to easily sail through. 

There is no indication that India thought otherwise or lobbied ab initio against the convention. Bhandari's candidature was announced only in June and its timing indicates that it was linked to the Kulbhushan Jadhav case. As Salam is a popular in UN circles and was working on his election for a long time, it could only have been the importance given to the Jadhav matter that would have persuaded the Modi government to undertake to contest what was obviously a very difficult election. Besides, Bhandari had made injudicious media comments after the ICJ decision putting a virtual stay on the proceedings against Jadhav by Pakistan. The diplomatic lobbying effort was intense, if quiet. It was led by Prime Minister Narendra Modi and the political leadership and involved all Indian Missions and naturally, at its centre, was the team at the UN in New York led by the able Permanent Representative Syed Akbaruddin. The election process is lucidly described by Prof Dapo Akande in the European Journal of International Law's blog thus: “It is only when the judges that have obtained absolute majority in an organ is equal to the number of vacancies that the President of that organ notifies the result to the other organ.” Taking the five vacancies on this occasion, Akande explains further, “If more than five obtain an absolute majority (and this is easily possible) then further rounds of voting are required.”

The voting process began on November 9. In the first round of voting India was comfortably placed in both organs indicating successful initial lobbying. However, the Senegal judge obtained the required number of 97 in the GA but, unexpectedly, came last. With this to get their candidates elected regional groups embarked on tactical voting including not using all their five votes. Consequently, India lost a majority in the SC in the fourth round of voting and Britain in the GA in the fifth leading to the other four going through. This was obviously a reverse for India.

The play 

Both organs now voted for the fifth seat. India secured 115 to Britain's 76 in the GA while Britain got nine to India's six in the SC. The next round of voting was set for November 13. It is at this time that the election turned from being one for a ICJ seat into a matter relating to P5 privileges sustained by conventions, the power balance between the GA and the SC, and India's and Britain's positions in the world. 

The P5's status and role, including the possession of the veto, is sustained by statute. However, there is no such backing to the conventions which confer on them a permanent presence or great influence in some UN institutions such as the ICJ. But the P5 do not want their privileges to be curtailed and unite to defend them. With their power they also succeed in arm twisting member-states to let the conventions continue. Thus, Indian diplomats and UN experts were acutely aware that they were in a very difficult struggle as matters stood on the eve of the India-Britain challenge set for November 13; notwithstanding Britain's diminished international standing, other P5 would stand by them. 

For India, the key lay with retaining majority support in the GA. Very intense lobbying was, therefore, undertaken relying on the principle that in case of an impasse between the SC and the GA, the will of the latter which reflected the democratic choice of the world would prevail over the convention. This struck a chord in the GA which has for long smarted, though mostly helplessly, at having to bow to the pressures of the SC and India was able to increase its tally to 121 in the GA in the voting rounds on November 13. It failed to make any headway in the SC, though where it slipped from six to five votes indicating that the P5 were not giving up on Britain and thus the privilege system.

After the 13th, Indian strategy was to further increase its number in the GA where a two-thirds majority, 128 at the present stage, assumes critical significance; the P5 wish to avoid an open defiance of the democratic will expressed so decisively. Realising that the GA was standing steadfastly behind India, Britain decided to play, prior to the next round of voting on November 20, on the ICJ statute which provides that in the event of a difference of opinion between the two organs a committee of three members from each will be formed to take a decision by majority and if an impasse continues still then the judges of the ICJ would elect. 

However, this procedure has never been used in the UN in previous elections. When the two organs differed, the SC gave way to the GA's preference. For the P5 to now allow Britain to invoke the statute would have been simply too blatant. Besides, a rift between the elected and the P5 may have arisen in the SC complicating the situation. Sensing that India was moving strongly ahead,except China, the others abandoned Britain and clearly informed it so. The fact that for the SC to go for the joint meeting required open voting also played a part for few were willing in the SC to openly go against India. Seeing the writing on the wall Britain withdrew Greenwood's candidature prior to the vote on the 20th.

The impact

There is little doubt that only India could have shown the nerve to take on the P5 and build enough support to prevail. Modi's outreach to African and other developing countries, which has built upon the work of previous governments paid dividends. This victory will greatly add to India's general diplomatic heft and prestige. It would be unrealistic, though, to expect an immediate effect on specific Indian concerns, including UNSC reform where the P5 will not hesitate to use the veto. 

It is also unlikely to make a direct difference in the Jadhav case though it is good to have a permanent judge instead of an ad hoc one hearing the matter. 

What is historic is that the GA will now be emboldened to take on P5 privileges sustained hitherto by convention. That India struck the first blow for a part of the democratisation of the international system is contributing to making history.  

The composition of the ICJ 

The ICJ judges are elected by voting system in both the General Assembly (GA) and the Security Council (SC); a successful candidate must secure a majority in both. 

The ICJ statute requires that the Court be representative of different civilisations and legal systems. By convention, it has reflected the geographical distribution of the SC. 

Thus, the P5 effectively arrogated five seats for themselves and of the remaining 10, two went to Asia, Latin America and Western Europe and others group, three to Africa and one to Eastern Europe. 

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