This is part of a September Feature at Legally Flawed, where writers choose an article and try to rebut it using logic and reason. Enjoy Rebuttal Rounds!
Until now we have seen writers rebut specific articles. In this post, author Nidhi S. Singh rebuts a popular headline from late 2017, which is about Judge Bhandari’s re-election to the ICJ. She talks about how the re-election is setting a bad precedent. Read on to know her views on this matter!
“How India ensured Dalveer Bhandari’s re-election to ICJ”
– The Times of India, 21 November 2017
“India beat Britain at the world court—but only due to politics”
– Quartz India, 22 November 2017
“Russia Congratulates India For Dalveer Bhandari’s Election to International Court of Justice”
– NDTV, 22 November 2017
The 2017 elections to the ICJ created quite a stir in the international community. While judicial elections on average only find importance in the intricacies of legal papers and the footnotes of legal history, this event was splashed all over the gossip pages of newspapers in both London and India. A succinct summary of events is as follows- 6 candidates were up for election to 5 seats of the International Court of Justice (ICJ) in late 2017. While the original count had been at 5, India threw its name into the hat at the last minute by re-nominating Justice Dalveer Bhandari to the ICJ. The ICJ follows a system of simultaneous voting at the General Assembly and the Security Council, and a majority in both bodies is required to for ascend to the bench of the ICJ.
While the first four candidates cleared the rounds easily enough, the UK candidate Sir Christopher Greenwood and Indian Candidate Justice Dalveer Bhandari entered into a standoff with each receiving a majority in the Security Council and the General Assembly respectively. After six rounds of voting, when the bodies remained unable to agree, the UK decided against triggering the joint voting mechanism outlines in the Charter of the ICJ, and in a surprising turn of events Sir Christopher Greenwood announced his intention to withdraw from the race altogether,
Following this incident, Sir Greenwood is now a member of the Iran-US claims tribunal, having been appointed by the US as its representative, despite not being a national. While it’s clear that there is ample International Politics at play here, and it would be impossible to fully dissect the significance of the all the events, in this post I focus upon the implications of India’s win at the ICJ.
The most important factors to be considered in this scenario are – firstly the change in the composition of the geographical groups, secondly the influence exerted by states and the role of lobbying by regional groups in the ICJ election process and finally the reasons for India’s late declaration of ICJ candidacy. It is important to note that at the outset, I make no comparison of the merits of the either candidates. Both judges have repeatedly been judges as competent members of the higher judiciary in their nations and enjoy significant international prestige as well. UK’s formal report on the causes for the loss of election proves to be an interesting read.
The seat in question, which became the cause of contention between UK and India, is the traditionally European seat. While the division of the seats on the ICJ between geographical groups has always been ‘off the books’ so to speak, they were put in place to ensure geographical diversity and the ‘representation of all major systems of the legal world’. With this election however, the division has now been disturbed, this leads to ambiguity for the future, while the regional division system was a shaky compromise between the countries, it was a mechanism which ensured diversity on the bench. If states continue to follow the trend of ignoring such customs, it is possible that only states with powerful lobbies may be able to have their judges elected, skewering the balance.
This brings us to the next point- the involvement of state politics and regional lobbying processes. As stated before, the seats on the ICJ are classified geographically, while some of these geographical sectors have strong lobbies (AU, CARICOM etc.) who collectively back candidates, other sectors show lesser internal cohesion, with seats being fought individually. The success of the 2017 election in the favor of India is mostly credited to the G77, a lobby of developing countries who are fighting for greater recognition at the UN.
While practices like vote-swapping at regional lobbying have become common place in international judicial elections, they tend to draw attention away from the merits of the candidate themselves and focus more strongly on the country. ‘India’ has been congratulated for its win, and the ‘UK’ has tried to justify its loss. Global politics completely ignores the candidates themselves in question, choosing to focus on the countries instead.
This finally brings us to the final contention of the process – India’s late declaration of candidacy for the ICJ elections. India has made no secret of the fact that it only declared its candidacy and focused its efforts to have its judge elected to the ICJ in light of the contentious ICJ case between India and Pakistan on the Khulbhushan Jadhav Case. While the case itself is somewhat of a political minefield, which has been referenced to earlier, the implications of this action are clear. India believes that having its judge on the bench for the hearings will put them in an advantageous position. This is far from true. While the exact nature of the relationship between judges and their home countries has always been a bit of a mystery, the provisions in the ICJ charter (Article 31 of the ICJ Statute) allowing for appointment of ad-hoc judges levels the playing field between countries who have their judges on the bench, and those who don’t.
By re-appointing Justice Bhandari to the bench, it has only ensured that Pakistan will also now have a right to appoint an ad-hoc judge to the bench during the pendency of the case- a right they have exercised in the present case. Of course, the biggest issue in the picture remains the implicit bias that appears blatant in the attitude of the states against judicial independence and the legitimacy of the courts.
On a side note- my personal interest in this event stems not from India’s win, or UK’s loss, or the politics of the state, but rather UK’s denial to engage the joint voting mechanism. While the mechanism has not been used so far, after 6 rounds of voting, UK was perfectly within its rights to engage a joint council, where 3 members of the SC and the GA would vote to fill the position on the ICJ. With UK’s support in the SC, they were practically guaranteed a win should they have chosen to use it, however in short order Sir Greenwood not only withdrew from the race but was also appointed to the Iran-UC claims tribunal as the US representative, with haste and in relative silence. This bears further investigation.
Nidhi Singh is an alumnus of the National University of Advanced Legal Studies, Kochi. She recently completed her LLM from the prestigious University College London. Throughout her law school she has shown aptitudes for debates and intellectual arguments, having won the Best Speaker in her moot court competition forays. In her free time, she loves to indulge her passion for Japanese culture.