International Court of Justice and India
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Indian judges in the ICJ
2017: Dalveer Bhandari
1st Time Britain Won’t Hold ICJ Post In 71 Yrs
New Delhi: India scored a dramatic diplomatic victory with the election of its candidate, Dalveer Bhandari, to the International Court of Justice (ICJ) after the UK withdrew its nominee in the face of overwhelming support in the UN General Assembly for the Indian judge.
Atop Indian diplomat quoted British poet Lord Tennyson, “the old order changeth, yielding place to new”, to describe the upbeat mood in the Indian camp and the major shift in equations between the UK and its former colony, with the development read as India’s biggest diplomatic coup in years.
This will be the first time in the 71-year-old history of the ICJ that there will be no British judge in what is described as “the world court”. Guardian described UK candidate Christopher Greenwood’s defeat as a humiliating blow to British international prestige and proof of its diminished status in international affairs.
Prime Minister Narendra Modi swiftly congratulated Bhandari in a tweet, calling his re-election to ICJ a proud moment and thanked members of the (UN general) assembly and (UN security) council. Foreign minister Sushma Swaraj tweeted “Vande Mataram” and “Jai Hind” as she singled out India’s permanent representative to the UN, Syed Akbaruddin, for special mention.
The extremely aggressive, in-your-face Indian campaign was led by India’s permanent representative.
India scuttles UK’s plan to leverage its P-5 status
It ensured that there were few takers for an arcane UK proposal that a “joint conference” be formed, as first reported by TOI on Sunday, to break the deadlock between the UNGA and UNSC. The old-fashioned attempt to leverage its status as a P-5 member failed as India insisted the will of the UNGA could not be ignored.
Bhandari’s election come as a shot in the arm for the Modi government with its increased diplomatic clout read in conjunction with improved ratings in the easeof-doing-business index and an upgrade by the ratings agency Moody’s that are seen as recognition of India’s reforms. “The extraordinary support from the UN membership is reflective of the respect for strong constitutional integrity of the Indian polity and the independence of the judiciary in India,” MEA said in a statement.
The UK needed support from eight members of the security council to stall voting and instead go for a joint conference. But several council members, who otherwise might have voted for Britain’s candidate Greenwood, were opposed to the proposal as they agreed with India’s position that it was an “undemocratic” move which would only further complicate the process.
Also, for a joint conference to be formed, all 15 council members would have had to publicly endorse UK’s proposal, something which countries like the US and France, which regularly profess their friendship and strategic partnership with India, would have been averse to.
In the last round of UNGA voting, Bhandari had 121 votes and Greenwood only 68. In the final round of voting conducted after Greenwood’s withdrawal, Bhandari got 183 out of 193 votes in GA and all 15 votes in the council.
Greenwood, Bhandari’s rival, broke norms
Bhandari’s world court poll rival broke norms, November 29, 2017: The Times of India
The UK’s Christopher Greenwood was among 13 former and seven current ICJ judges who worked as “arbitrators” during their tenure despite the International Court of Justice (ICJ) statute prohibiting them from doing so, an investigative report has said.
The report, published by Canada-based International Institute for Sustainable Development (ISSD), said India’s Dalveer Bhandari, who recently defeated Greenwood for the last vacancy at ICJ, was not among these judges.
ICJ statute prohibits judges from engaging in “any other occupation of a professional nature”. This probably explains why Bhandari consistently received nearly two-thirds of the votes in the UN General Assembly, and Greenwood lagged far behind. Greenwood later withdrew from the race, paving the way for Bhandari’s re-election to ICJ.
“Justice Bhandari as a matter of conscious choice does not do any arbitration cases,” sources told PTI.
The study found Greenwood worked as an arbitrator in at least nine investment arbitration cases during his tenure at ICJ. He was paid more than $400,000 in fees in two of those nine cases. More than $1 million in fees was paid to ICJ judges in nine of the 90 such cases compiled by ISSD. ICJ president Ronny Abraham and five past presidents were among the 20 current and former judges who worked as arbitrators during their term.
The Diplomatic Win: how India pulled it off
Sep 25, 2021: The Times of India
India’s re-election in 2017 to the International Court of Justice was described by PM Narendra Modi as a proud moment for the country. Syed Akbaruddin, Permanent Representative to the UN then, spoke to Sachin Parashar about his upcoming book ‘India vs UK: The Story of an Unprecedented Diplomatic Win’, which reveals how India pulled it off:
India’s ICJ victory was described as a humiliating blow to UK’s standing. What made it possible?
Our delayed decision to contest, a year later than other countries, made us realise that we had to raise our game to stay in the contest. Our political leaders, too, understood that they needed to pitch in. So while our diplomats worked globally, our leaders, from the PM to the external affairs ministers, did a lot of quiet diplomacy. That played a crucial but not very visible role.
You reveal that US diplomats lobbied against India, and stopped only after you complained to ambassador Nikki Haley. Tell us more.
The US establishment, if I may put it that way, made every effort to stop India from ‘disrupting’ 70 years of established practice. They targeted about 40 states they felt could swing the balance. In this quest, they fielded some ‘advisers’. One had a deep knowledge of India and contacts in our neighbourhood. Some of us know him as a ‘friend of India’. However, this ‘friend’ tried but failed to woo our true friends, the smaller states in the neighbourhood. The US did sway some others elsewhere. By our count, about 6/7. But these countries realised what the trends were. It was to stem such efforts that we turned to our friends in high places in the US system, such as ambassador Haley, who did help us when we desperately needed it. All this made us feel good that we had dependable friends too.
China refused to engage. Wang Yi didn’t take Sushma Swaraj’s call. Was it because of Doklam?
The shadow of Doklam was distinctly visible through the campaign. Before that, we had many tie-ups with China for mutual support. But that changed.
You also reveal that Japan didn’t respond to India’s desperate pleas.
Yes, it was a shock to many, within the Security Council and us too. We made attempts at every level: In Tokyo, in Delhi, in pullasides at other meetings.
Japan froze us out. Perhaps Gaimu-sho – the tradition-bound Japanese foreign ministry – was led to believe that an Indian victory wasn’t possible and thought they were backing a winner in the UK.
You prevented Swaraj from taking a call from then foreign secretary Boris Johnson towards the end. Why?
In the heat of a battle, one fears the worst. There were many compromises floating around. We were convinced that we were on the cusp of victory and hence no arrangement was required. Hence I did take that difficult decision to advise minister Swaraj not to take any calls. It is to her credit that she listened.
She was well within her rights to brush it aside. My concern was it is difficult to turn down political level overtures couched as equitable. In such situations, it’s best to handle at levels where we could stall an arrangement before the scheduled voting which would lead to a victory. Whether the intended call was to be an overture or a final acknowledgement of defeat by the UK is now only known to PM Boris Johnson.
Going by the book, all big powers ditched India but neighbours stood by it?
Where key interests coincide, everything else is kept aside. An Indian victory was not seen by any of the permanent members in their interests. Hence they consistently voted for the UK, although each of them, barring China, were at times helpful in some manner. Our neighbours and many other small and medium states were the bedrock of our support. The key takeaway, therefore, is that we need to be multi-aligned so that when some of our key partners go their way, we remain strong with the support of others. We need to engage with the big but also invest in ties with others, especially our neighbours and friends who may not be big or great but who can stand with us in times of need.
Do you think India decided to contest only after it moved ICJ in the Kulbhushan Jadhav case?
Yes, we delayed for very long a decision on contesting. We had virtually decided not to contest and so an entire year went by with us showing no interest while others were campaigning for their candidates. Then in the aftermath of our moving the ICJ in the Jadhav case we realised that the Court was not a distant body where we had no interests but one in which our stakes needed our continuance.
Details
January 12, 2022: The Times of India
National elections are often a metaphor for change. In the international arena, this is rarely so. While many reasons account for this, it is primarily because the nature of contestation is fundamentally different. In democracies, elections represent opportunities for change. The international system is rigid and elections rarely reflect fundamental change. Also, elections on global platforms rarely attract much interest beyond the diplomatic fraternity. The outcome of the voting at the United Nations for the ICJ election on November 20, 2017 was different.
It was diplomacy and not international law that decided the outcome. This has always been the case. The only difference was that the UK and its allies in the Security Council have traditionally been the beneficiaries of the established dispensation of geopolitical forces behind the curtain of international justice. This time, the changes in the changing global dispensation attracted attention.
Oliver Wright, writing in the London-based daily The Times, reported that Britain had lost out under the ‘new world order’ at the United Nations, blaming a ‘rebellion’ by ‘an alliance of developing nations’. The result, it noted, meant cracking open a club that for decades now had taken it for granted that the five permanent members of the UN Security Council would always have a seat at the ICJ.
Owen Bowcott, writing in The Guardian, termed it as "a humiliating blow to British international prestige and an acceptance of a diminished status in international affairs".
The BBC’s diplomatic correspondent wrote, "This defeat at the UN will be seen as a significant diplomatic setback, a symbol of Britain’s reduced status on the world stage. Britain tried to win an election—but the community of nations backed the other side.”
Later, following a post-mortem of the episode, the UK’s Foreign Affairs Committee concluded: "The inability of the government to secure the re-election of Sir Christopher Greenwood to the court was a failure of UK diplomacy."
In India, on the night of the election, external affairs minister Sushma Swaraj did not sleep much. She kept track of the voting on the UN’s Web TV Livestream and seemed to have savoured it all. As soon as the formal announcements ended the meetings in the Security Council and the General Assembly, she called and congratulated the entire team in New York. In her own words, she saw it as "akin to being engaged in a second war of Independence".
Vijay Gokhale, who went on to succeed Dr Jaishankar as foreign secretary, in a tribute to Sushma Swaraj on her death anniversary recounted, "She phoned each of the senior officials in New Delhi and personally conveyed the news while thanking them for their efforts. Not only did she lead from the front but also ended the saga with a graciousness that will be remembered for long by all who were engaged in it."
The print and the visual media in India carried reports of the ‘diplomatic coup’. The outcome was not perceived as a contest between two individuals or judicial philosophies, but between the old post-World War II order and the emerging dynamics of world power.
Social media was agog with the who’s who of India’s political firmament, including Prime Minister Narendra Modi, showering accolades on the diplomatic establishment. In keeping with the mood of national euphoria, commentators termed it as a ‘power shift’ attributable to ‘smart and aggressive diplomacy’, reflecting a ‘hunger that was absent before’.
At one level, legal analysts projected the result as "an important departure from ICJ election practice".
They said, "First, it did away with the tradition that reserved a seat on the court for the five permanent members of the Security Council. Second, it was noteworthy because it resulted in a reallocation of seats amongst the regional groups." Whether this was on account of Indian exceptionalism, and if it set a trend for the future, can only be fully understood following subsequent ICJ election results.
At another level, the argument made was that it showed that India had "an abiding interest in international regimes that were set up after World War II, believing their stability is crucial to India’s rise". Therefore, "in an age of revisionism and aggressive lawfare led by China, India’s election to the ICJ is likely a stabilising development".
On July 17, 2019, the ICJ delivered its final verdict on the Kulbhushan Jadhav case between India and Pakistan. By a 15:1 majority decision in India’s favour, the court found that Pakistan had breached its obligations under the 1963 Vienna Convention on Consular Relations and called for an effective review and reconsideration of the conviction and sentence of Kulbhushan Jadhav.
Notwithstanding the outcome at the ICJ, the question of Kulbhushan Jadhav’s detention and his pending death sentence remains, until now, caught up in the perennial uncertainty that pervades bilateral ties between India and Pakistan. The election also symbolised the coming-of-age of Indian multilateral diplomacy.
The lessons we learnt were many. Our decision-making process may, at times, be time-consuming and can put a heavy load on ensuring the implementation of a decision that has taken a long time to arrive at in the first place. However, once a decision is taken, with all on board, the trajectory is never half-hearted. It usually proceeds at full throttle to achieve success. Focus provided by the political leadership sets the tone for the rest.
A headquarter-driven approach is required to pursue ambitious goals globally. On its own, a single diplomatic mission cannot succeed in the pursuit of major goals, as every aspect of a country’s foreign policy posture plays into how other states respond to requests. Leveraging of crucial linkages is best done by those who are most well versed in all aspects of ties. However, inputs of ground realities too are important. Keeping faith in those who are in the trenches is as necessary as exercising the breadth of authority that is always available to those at the apex.
It is normal to be confronted with surprises on account of loss of support from least expected quarters. Consistent efforts at nurturing and broadening ties with an array of diverse states provides space and autonomy when more important partners turn away in pursuit of their specific interests. Engagements and alignments can be pursued with key partners even when paths are different.
In diplomacy, it is important to fight to the finish. There always is more time than one thinks there is. In an era when everything of the instant variety is the flavour of choice, patience and biding one’s time to wait for the right opportunity is as important as the desire to bring rapid closure. Timing is as important as any other ingredient of success. Going through the numerous ups and downs of the election made us realise that while fighting the good fight is important, so is an understanding of the time to end it.
Excerpted from India Vs UK (published by Harper Collins)
