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How India’s judge Dalveer Bhandari at the ICJ challenges the global status quo

India has won a greater battle with Dalveer Bhandari’s election as a judge at the International Court of Justice.

Written by Shubhajit Roy |
Updated: November 22, 2017 9:44:09 am
dalveer bhandari icj jude, dalveer bhandari elected icj jude, dalveer bhandari greenwood icj election, dalveer bhandari 15th judge icj, icj elections 2017, icj voting 2017, world news, indian express news Before the voting could begin, Greenwood withdrew his candidature from the re-election and Justice Bhandari secured the last seat at ICJ.

On June 23 this year, the UK suffered what the British media called a “humiliating defeat” at the United Nations General Assembly (UNGA) in a vote over decolonisation and its residual hold over disputed territory in the Indian Ocean. By a margin of 94 to 15 countries, several nations supported a Mauritian-backed resolution to seek an advisory opinion from the International Court of Justice (ICJ) in The Hague on the legal status of the Chagos Islands.

To add salt to the UK’s wound, 65 countries abstained, including many EU member states — France, Germany and Spain among others — which were expected to vote in support of another European country.

It was a moment that some in South Block watched with considerable interest.

Five months later, during the wee hours of Tuesday, a seven-decade-old convention at the United Nations was broken. The United Kingdom, which has had a judge at the International Court of Justice (ICJ) since 1946, withdrew its candidate and gave way for India’s nominee, Dalveer Bhandari. It did so in the face of a defeat at the 193-member UN General Assembly. Bhandari, in the end, won 183 out of 193 votes at the UNGA and all 15 at the UNSC.

In fact, the last ten days saw many twists and turns before India bagged the seat at the ICJ, replacing and defeating a permanent member of the United Nations Security Council (UNSC).

The ICJ has a bench of 15 judges, five of whom are elected every three years for a nine-year term. To be elected, the candidate needs a majority in both the chambers, the UN General Assembly as well as the UN Security Council. Established in 1945, the role of the ICJ is to settle, in accordance with international law, legal disputes submitted to it by states and to give advisory opinions on legal questions.

For India, right now, a key case involving former Indian Navy officer, Kulbhushan Jadhav, who has been awarded the death sentence for espionage by a Pakistani military court, is being heard by the ICJ. Having a judge of Indian origin — although he does not represent the Indian government — is a strategic asset. In fact, Pakistan — to gain parity — has nominated an ad-hoc judge at the ICJ.

For Bhandari’s re-election, there were seven rounds of voting pitting him against the UK’s Christopher Greenwood over two days, on November 9 and November 13. The 193-member UNGA gave Bhandari a comfortable majority. While Bhandari got between 110 to 121 votes, Greenwood’s votes varied between 68 and 79 — much less than the halfway mark of 97.

In the UNSC, Greenwood got nine votes, while Bhandari got five and there was one abstention during the last round held on November 13. This was a drop from November 9, when India had got six votes in favour while the UK had got nine.

According to UN rules, the candidate who gets an absolute majority in both the UNSC and the UNGA is the clear winner.

Then, as the divide between the UNGA and the UNSC became clear, the UK was pressing for the convening of a ‘joint conference’ between the UNGA and the UNSC under article 12 (1) of the ICJ statute. A ‘joint conference’ would be a meeting between six countries — three each from the UNGA and the UNSC. As per the ICJ statute, the joint conference has full freedom to decide on a name for the court and need not confine itself to official candidates. But how these countries will be selected is not clear since the ICJ rules are silent on the issue. This option has been last used in 1921.

On Tuesday, as the divide became clear, India’s strategy of portraying the UNGA as the “voice of the people” and the UNSC as the “voice of the global elite” yielded dividends. The UK, after consulting the UNGA and the UNSC Presidents, decided to withdraw its candidature.

While an ambitious Delhi tilted the scales in its favour, London’s concession is now being seen as acquiescing to certain changed global realities. Post-Brexit, London has found itself on a more lonely pitch — the June defeat was a case in point.

India emerging as a top economic partner and a potential market for a post-Brexit United Kingdom could also have played a role in Britain’s decision. Further, the UK hosting the Commonwealth Heads of Government summit meeting in April 2018 is significant for it wants India to play a lead role and to shed the image of being a “white man’s club”.

Though diplomats from both sides deny any quid pro quo in the concession, a top UN diplomat told The Indian Express, “There is no decision at the UN which does not involve any bilateral quid pro quo. There are no winners and losers at the UN…there is always give and take”. To know what this “give and take” might be, one will have to wait for the future to unfold. But, for the moment, what lies behind this diplomatic “win” is that it has, in a deeper and fundamental way, questioned the “sense of entitlement” for a P-5 country at the UN.

For the last seven decades, that has remain largely unchallenged. The only permanent member which has not been a member of the ICJ in the last 71 years is China — between 1967 to 1985, it had no Chinese judge on the bench.

While many may say that this is a sign of the UK’s declining power on the global stage today, this also appears to be the beginning of change. The opportunity to challenge the status quo came all of a sudden and presented itself as a rare chance as India and the UK found themselves on opposite sides.

The mood in the United Nations General Assembly on November 9, the first round when India’s Bhandari was ahead by 115 votes and beat the UK’s Greenwood, who got 76 votes — less than the halfway mark of 97 — is perhaps the most telling sign of all.

The push within the UNGA is indeed for challenging the sense of entitlement and changing the status quo. A David versus Goliath situation arose at the UN and, significantly, the “underdogs” came up on top.

Now, it will take Delhi’s creativity to channelise this energy and momentum in order to push for larger reforms at the United Nations Security Council. But the stakes will also be higher now as that questions the establishment at the world body and no country will want to lose any of its entitlements. This will require more than the diplomatic strategising seen over the last ten days.

Tuesday’s outcome has shown that India has the diplomatic skills to pull off a victory for short-term benefits. The true test now lies in whether Delhi will be able to consolidate this momentum and convert it into more meaningful changes on the global stage. That task appears more daunting.

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