India, UK face off for International Court of Justice seat. Here's what's next

The logistics

The ICJ consists of 15 judges who each serve a nine-year term. Elections are held for five judges every three years and the 2017 election is for the term beginning in February 2018.

For the five seats, there were six candidates. Five of them – from France, Somalia, Brazil, Britain, and India – have been serving judges of the Court and the sixth, Nawaf Salam is the Permanent Representative of Lebanon to the UN.

The ICJ statute provides that the Court’s composition must reflect “the main forms of civilizations and of the principal legal systems of the world”. However, in practice, the P5 have succeeded in ensuring that a regional representation system is followed and that a convention is pursued that ensures that each of them would always have a seat on the bench.

Of the remaining 10, two each are allotted to Western Europe and Others group, Asia, Latin America and the Caribbean, three to Africa and one to Eastern Europe.

On the basis of convention regarding the P5 and the geographical distribution of seats most knowledgeable observers felt that the French, British, Brazilian and the Somalian judges would be re-elected and that a contest would be only between Bhandari and Salam for the Asian seat.

This was notwithstanding that there was unease in some quarters in Britain that Greenwood may not have an easy time for he has had a controversial judicial past. However, as he had succeeded in the 2008 election, Britain did not change him.

Another problem is that Britain’s international stock has fallen. This was reflected a few months ago when despite the support of the US the British could not prevent Mauritius from winning a UN General Assembly vote which referred its dispute with Britain on the Chagos Island to the ICJ.

Bhandari has a difficult election ahead as Lebanon had begun lobbying a long time ago and Bhandari’s candidature was announced only in June this year. As India took Pakistan to the ICJ in the Kulbhushan Jadhav case in May and as the government took the decision on Bhandari after that – it is obvious that it wants an Indian judge on the bench.

All this left too little time to promote his candidature even though Modi government obviously made it a priority and lobbied for it at the highest level.

Matter of process

The complex election process for ICJ judges involves separate but simultaneous voting in the UNGA and the UNSC. A successful candidate needs a majority in both UN chambers which, on this occasion, comes to 97 votes in the UNGA and eight in the UNSC.

The election took place last week in New York. As it proceeded different regional groups, as always in such elections, took to tactical voting for the victory of their candidates. Finally, four succeeded – the French, Brazilian and the Somalian judges and Salam. The fifth seat remained deadlocked between Bhandari and Greenwood. A straight contest took place then between the two. Bhandari secured 115 UNGA votes to Greenwood’s 76 and in the UNSC Greenwood got nine to Bhandari’s six.

Notwithstanding the handicap of the late start, Salam’s seeming popularity, it is clear that India’s failure to defeat him marks a reverse. Had a clear message gone out from the Asian group in Bhandari’s favour, perhaps as the crunch situation arose, he may have succeeded. However, what will happen now?

Rallying numbers

Even as I write these lines, India and Britain are quietly, but surely, making all-out diplomatic efforts. In India’s case, it is vital to hold on to a majority in the General Assembly and add two more countries to their tally of six in the Security Council.

For Britain, it is just the reverse. What gives the British the advantage is that the P5 will not want a chink to develop in their wall of privilege. Collectively, they enjoy enormous clout and thus may be able to sway countries in the General Assembly towards Britain.

Here the critical role will be of the US which has a special relationship with Britain. That should not prevent India from urging the US to remain neutral in the contest.

If after two more rounds of voting the deadlock continues then a committee of three members each of the GA and the SC will be formed and that committee will decide the winner. If neither candidate is able to get a majority in the committee then it could decide on a new name. If that is not done, then the election will be left to the judges of the ICJ. The judges will naturally decide on the political advice they receive from their capitals.

A win against a P5 member will add to its international prestige but if it is able to stretch the election far it will also serve its diplomatic purpose.

Will India be able to rally the support of the developing countries in adequate numbers in the GA? That will be the first test and the diplomats across the world will watch the action in New York with the greatest interest.

Edited by Jhinuk Sen