‘India vs UK: The Story of an Unprecedented Diplomatic Win’ delves into is Justice Dalveer Bhandari’s election to the ICJ, and is a great contribution towards literature on ICJ elections in general and India’s candidacy at the ICJ in particular, writes AMAN KUMAR.
The first page (of India’s relationship with the United Nations)
The book begins by narrating history of India’s engagement with the United Nations [UN]. It narrates the incident of election of three non-permanent members to the United Nations Security Council [UNSC]. While Argentina and Canada were elected in the first round itself, the voting for the remaining one seat went on for 40 days. Finally, India withdrew, and the Ukrainian Soviet Socialist Republic was elected on November 13, 1947. Akbaruddin notes that this defeat meant that “India’s engagement with the Security Council was not about to begin as a decision-maker on peace and security, but as a plaintiff”. (p. xiii) The reference to India being a plaintiff is in the context of the ‘India-Pakistan question’, which was first considered by the UNSC on January 6, 1948, merely about two months after India failed to get itself elected to UNSC.
The missing page (or the election which was not even on the agenda)
It becomes obvious from the very first chapter that India was not even thinking about ICJ elections in 2016! Akbaruddin informs us that in 2008, India had made a deal with the Jordanian Judge Awn Shawkat Al-Khasawneh that at a certain stage in his second term he would yield his place, opening an early opportunity for a successor. The Judge stood by his promise and Judge Bhandari was elected, for the first time, in 2012. Sadly, Akbaruddin leaves us wondering about the reasons behind India deciding to contest 2008 elections, or who was the nominated candidate and why exactly India decided to back down.
The final page
Seeing that the elections were heading nowhere, the United Kingdom [UK] decided to use a hitherto unused provision of the ICJ’s Statute, that is, Article 12(1). This article provides that: “If, after the third meeting, one or more seats still remain unfilled, a joint conference consisting of six members, three appointed by the General Assembly and three by the Security Council, may be formed at any time at the request of either the General Assembly or the Security Council, for the purpose of choosing by the vote of an absolute majority one name for each seat still vacant, to submit to the General Assembly and the Security Council for their respective acceptance.” Akbaruddin explains the actual meaning of this provision: the Security Council will decide who will be elected. In other words, the UK’s nominee would get elected. Obviously, India decided to oppose this move. Additionally, it reached out to Security Council members too. Also read: India v. Pakistan at the International Court Of Justice: Provisional Measures and the Way Forward
Postscript (review of the book)
The book touches on several different aspects of international diplomacy, presenting Akbaruddin’s personal opinion on international issues. He has discussed about the inherent problems of the UNSC, the qualities of the candidate India nominates to international bodies, and the role of media in international elections, among other things. On UNSC Akbaruddin has presented a strong argument against the UNSC’s working. He writes in the context of Judge Bhandari’s election that “[i]t is enough to indicate that Judge Bhandari has strong support when the playing field is even, but not enough to surmount the carefully crafted advantage that the permanent members have o their turf – the security council.” (p. 105) On the politics around nominating candidates While disagreeing with the member states questioning of Judge Bhandari’s opinion in some judgements, Akbaruddin seems to favour doing the same against Judge Greenwood by highlighting the British ICJ Judge Sir C.J. Greenwood’s opinion on the invasion of Iraq. (p. 116) This raises an important question – is it better to nominate a person with a clean slate, like Judge Bhandari, who was never involved in any substantial decision making vis-à-vis international law? A related question which arises is regarding nominating individuals with international law experience for posts where by, its very nature, the job requires knowledge of international law. India’s last two nominations to the ICJ were judges of the Indian Supreme Court. Therefore, the debate is also about nominating a scholar/professor of international law versus a judge. Akbaruddin writes that the criticism (he uses the words ‘bickering’ and ‘brouhaha’) around nominating the jurist Dr. Anirudhha Rajput for the International Law Commission [ILC], because many international law experts were overlooked, made him and his team more resolute to get Dr. Rajput elected to the ILC. One fails to understand how can criticism of Dr. Rajput’s nomination have any impact on the Permanent Mission or get them determined to get him elected? After all, the duty of the mission is to get the Indian candidate elected, no matter who that individual is. The decision to nominate, ideally, rests with the National Group, and to a certain extent, the government. The Permanent Mission is not involved in that process, personally or otherwise. Writing about Dr. Rajput’s election, Akbaruddin says that the win “shows that what is of consequence is how much India matters to the UN membership, not the internal bickering amongst ourselves about who India’s candidate is.” This is a reductive, if not harmful, conclusion. One can understand that a mere seat at the Security Council will be of no consequence, no matter the individual who is representing India there; but the same can’t be said for ICJ judges. While it is true that for elections, India’s standing matters; that cannot be the only point of concern, especially for institutions like the ILC and ICJ. Unlike UNSC and United Nations General Assembly [UNGA], where the Indian representatives work as a mouthpiece of the Indian government of the day, at institutions like the ICJ, the International Tribunal for the Law of the Sea (ITLOS), and the World Trade Organization Dispute Settlement Body, the nature of work is legal. The law which is applied there is international law. Hence, if the Indian candidate has knowledge of international law, specific to the international body concerned, they will be in a better position to perform their duty. Take, for example, the recent Enrica-Lexie case at the Permanent Court of Arbitration. The arbitrators appointed by India in the case, the jurist P. Chandrasekhara Rao (until October 11, 2018) and international lawyer Dr Pemmaraju Sreenivasa Rao (as of November 26, 2018), had substantial experience of international law in general, and the Law of the Sea in particular. This area expertise is reflected in the Concurring and Dissenting Opinion of Dr. Rao and the Joint Dissenting Opinion of Dr Rao and Judge Patrick Robinson. Therefore, the ‘bickering’ about who India’s candidate is becomes important and even necessary, because the matter doesn’t end with the election. After getting elected, the individual has to take part in important decision-making processes, which can be smooth and fruitful for India, if the person concerned has experience in international law. And this knowledge becomes important. Akbaruddin mentions that during the election campaign of Judge Bhandari, the Indian team realised that a few members of the UNSC were not satisfied with the judgments given by Judge Bhandari (though I concede that the dissatisfaction might be ideological or due to the needs specific to their States). However, it also shows that UNSC members, who have two votes during ICJ elections [one for UNGA and UNSC each], can indirectly influence the elections. Another reason for nominating an area expert is because during the interaction with nominees, States want to seek their opinion on issues which are regularly dealt by the ICJ, as happened in the case of Judge Bhandari, where he was questioned on issues of environmental law. Further, Akbaruddin himself provides a reason for not appointing a jurist. While writing about India’s Radhabinod Pal’s loss against Pakistan’s Zafrullah Khan, he notes that “close votes generally tend to favour insiders, and Zafrullah Khan was one of them”, unlike Pal, who was a “quintessential jurist”. Related to the point about insiders faring well at the UN/ICJ elections, is another point about the duration a representative spends at the UN. Akbaruddin provides enough evidence to suggest that it certainly is beneficial to spend a lot of time at the UN as a representative. The posting at the UN gives one a good opportunity to understand the nuances of the UN’s working. Plus, it gives a representative time to build relationships which can be leveraged later on. The case in point is Judge Nawaf Salam, who was Lebanon’s Ambassador and Permanent Representative to the UN from 2007 to 2017. He was one of the candidate for the ICJ’s election and got elected in the first round. As Akbaruddin tells us, Judge Nawaf had used his experience at the UN to garner votes for him (and obviously there were other factors at play). One wonders why India’s Permanent Representatives to the UN are given a tenure of just three to five years. (Akbaruddin himself had a tenure of just four years.) On media coverage In multiple instances, Akbaruddin has talked about the media coverage of Judge Bhandari’s election. One wonders how the media coverage about the ICJ election could have helped Judge Bhandari in getting elected. Suggestions in this regard was made by Akbaruddin in order to sensitize public opinion (p. 116). Dr. Shashi Tharoor was asked and he obliged by tweeting on the election (p. 123). One can argue that the media coverage might have helped in creating public pressure for votes in India’s favour, and might have helped had the elections went on for more time. But did the media coverage materialise in the form of votes at UN and if it did, how? The book does not answer these questions. ‘India vs UK: The Story of an Unprecedented Diplomatic Win’ is otherwise a great contribution towards literature on ICJ elections in general and India’s candidacy at the ICJ in particular. It tells a lot of important incidents from the past about earlier elections, and how Akbaruddin and his team took lessons from those earlier elections. The best part of the book is between pages 163-171. It is here that we get to know the final part in the story of election of Judge Bhandari. It is where Akbaruddin is fighting a lone battle against the UN officials and the UK’s representative. He manages to hold on to his own and emerge victorious. Candidate Bhadari becomes Judge Dalveer Bhandari here. From now onwards, every ICJ election should be contested by India. I can’t see any reason why that should not be the case. As Akbaruddin notes, despite the ‘regardless of their nationality’ clause in the ICJ’s statute, the P-5 members have always had their nationals on ICJ’s bench (barring the exception caused by Judge Bhandari’s election). And he is right in saying that it is only a matter of time before countries like India start laying claim for equal participation at ICJ’s elections. Also read: Kulbhushan Jhadav case: Lessons we can learn from the video recorded proceedings from the International Court of Justice Some intriguing facts from the book: 1) Dr. Neeru Chaddha’s (currently a judge at the ITLOS) candidacy for the ILC had been overlooked, before she got nominated for ITLOS in 2017. (p. 11) 2) The first affirmation of support for the Indian candidate at ICJ election didn’t have any name, since at that time, India was yet to announce its candidate. The affirmation came from Uzbekistan. (p. 42) 3) India doesn’t have embassies in more than a third of UN member states – to be precise, in 75 states. (p. 64) (Aman Kumar is an Assistant Professor of International Law at the IFIM Law School, Bengaluru. He is an alumnus of NLUJA, Assam and South Asian University. He writes for the Indian Blog of International Law. The views expressed are personal.)