Indian Turtle and British Hare: Race for the International Court of Justice

International Court of Justice
International Court of Justice,

The 72nd session of the United Nations General Assembly (GA), currently underway, coincides with important geopolitical events. For one, global military tensions have been at their highest in decades. Strategic posturing has been a hallmark of any global event featuring a large number of countries. Powerful nations have used the occasion to reinforce their dominance over the global order. Countries such as North Korea and Iran have, in the past, used the forum to make statements that are nigh impossible to put into practice. However, beneath the eloquent monologues on the GA podium, the annual session holds significance for a unique reason: the election of member states to the UN’s powerful principle organs.

Elections of five non-permanent members of the Security Council (SC) and of 18 members of the Economic & Social Council (ECOSOC) were laid down in the agenda of the session which commenced on 12th September 2017. Also laid down on the agenda was the election of five member Judges of the International Court of Justice (ICJ).

Story of the court: from PCIJ to ICJ

Before moving on to the significance of the current ICJ elections, it is important to understand the factual and legal background of the same. The League of Nations formed after World War 1, had the Permanent Court of International Justice (PCIJ) as the principal judicial arm. Many commentators attribute the collapse the post-WW1 global order to the failure of the Leagues in taking strict action against belligerent nations. However, in part, the shortcomings of the PCIJ in resolving international disputes between nations led to an atmosphere conducive to the growth of such hostile behaviour. In its heydays during 1922-32, more than 10 member governments withdrew from pending cases before the court could give its decision. Further, during World War 2, the functioning of the court slowed to a grinding halt, ultimately leading to its redundancy.

In this historical background, the UN Charter established the International Court of Justice as a stronger principle judicial organ of the world to solve inter-nation disputes. Relevant to the current events are the court’s composition and election procedure. The ICJ is composed of fifteen judges elected for a nine-year period. The judges are elected by the GA and the SC simultaneously. For a candidate to be elected, they require an ‘absolute majority’ of the votes from the two bodies. It is calculated as half + 1 of their total membership which is 193 and 15 respectively. Therefore, a candidate needs 97 affirmative votes from the GA and 8 affirmative votes from the SC simultaneously. The veto-power given to the permanent five members of the SC cannot be exercised in the voting.

Posturing of a different kind

After filling up four of the five vacancies, Justice Dalveer Bhandari of India and Sir Christopher Greenwood of the UK were the remaining contestants for the fifth vacancy. In the last round of voting Justice Bhandari notched 115 votes in the GA and 6 in the SC, while Sir Greenwood polled 76 votes in the GA and 9 in the SC. Both the candidates failed to cross the majority in both bodies simultaneously.

India, UK and the significance of events

Although India is currently represented at the International Court Justice by Justice Bhandari himself, his present term ends in 2018. The case concerning Kulbhushan Jadhav is gaining increasing importance with Pakistan poised to file its reply on 13th December. Having representation on the bench is seen as an effective bulwark against being prejudiced by an outright absence of an Indian judge. Besides, elections to UN bodies are one place where the ‘Global South’ of developing countries has exploited its numerical might to the fullest. India and until recently, China, have always been at the vanguard of the South’s diplomatic push. Beyond a point, it has become an issue where India is now testing its rising diplomatic stature. In any event, when members come before the International Court of Justice, they are allowed to nominate one ad-hoc judge from their country if they are not represented. Therefore, there exists no apparent threat of being under-represented in the near future.

More than India, it is the United Kingdom which has somewhat extreme stakes in this election. No permanent seats have been reserved for the five members on the International Court of Justice like in the SC. The permanent five members including the UK have always been represented on the bench without a gap since 1946. The loss of the UK would be a mighty blow to the halo of entitlement these countries have sought to perpetuate. More specifically, the empire on which the sun never set would have to take leave of the World Court in a sunset of uncertainty. The post-Brexit world order has left the diplomatic outreach of the UK in a conundrum over the wishes of its political stakeholders. A country cannot recede and exert influence at the same time. If current events are to be taken into account, the UK’s soft influence is on a steady wane; being supported on a crutch by the US and other western powers. India’s 115 votes in the GA on the other hand, is demonstrative of India’s growing diplomatic clout even in other colonies of its former colonial overlord. Although on issues of disarmament, non-proliferation and security the UK will still continue to be an important stakeholder, the silent majority at forums such as the GA would do all to ensure a slow cession of diplomatic capital towards the South.

Pragmatic Reform

The current election also brings to the fore an important diplomatic dichotomy. Immediate reform of the permanent-veto system in the SC seems unlikely. However, for a start, elections to global bodies should be the province of the GA where each country is equally represented. Selection of the UK by the SC would undermine the popular legitimacy of the office it seeks. It would be a strange irony that the country which could not muster the support of even half the world now sits in judgment over their disputes. If the disproportionate clout of the permanent members of the SC can’t be reduced on security-specific issues, they should at least not be allowed to interfere in an underhand manner, undermining the popular vote. International legality devoid of international morality legitimizes even the most absurd of outcomes.

Also published on Medium.