Why Justice Dalveer Bhandari should not be seen as India’s mouthpiece at the ICJ

Nationality is never a factor in voting during the ICJ's decision making process. However, outside the court, and for the purposes of 'perception', scholars have looked at the nationality of Judges to draw their own conclusions.

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What is the controversy?

On March 16, an unnecessary controversy broke out in India regarding International Court of Justice [ICJ]'s Indian Judge Dalveer Bhandari's voting in the Ukraine vs. Russian Federation dispute at the ICJ. Even before the voting, a foreign academic had guessed that the court would grant Ukraine's request and Judge Bhandari would dissent. She later clarified that she threw Bhandari's name as "a wild card", along with Judges K.G. Gevorgian and Xue Hanqin.

After the ICJ's Order was delivered on March 16, an Indian journalist tweeted "Dalveer Bhandari, the Indian judge at the International Court of Justice has voted against Russia. Judge Bhandari, while independent, was fully backed by the GOI in being nominated for this post. India has so far abstained in key international votes on the Ukraine-Russia issue." Notice how the nationality of the judge is highlighted along with the fact that though independent, he was fully backed by the Indian government for his re-election. Similar was the case in the tweet I have referred to in the preceding paragraph. The judges 'guessed' to dissent were Indian, Russian, and Chinese.

Such innuendos led to widespread discourse about Judge Bhandari's voting. Reputed news media organizations ran pieces (see here and here) with headlines referring to his voting (even though the substance of these pieces was about the ICJ's order), while a few even clarified that the voting should not be linked to India's position on the conflict.

Also read: As ICJ orders Russia to suspend its military operations in Ukraine, it may well have opened a window for peace

Why do ICJ Judges vote in every case?

For the Indian audience, voting by judges might sound new. It happens only in some cases where the judges might disagree on the outcome of the case. But voting does not happen in all cases in India; it doesn't even happen in all cases before the Supreme Court. At the ICJ, however, the voting process is used in all cases. The Statute of the Court provides in Article 55 that: "All questions shall be decided by a majority of the judges present." This implies that decisions on all questions are taken by a vote of judges who are present. For example, in the Ukraine vs. Russian Federation case adjudication, Judge Antônio Augusto Cançado Trindade was not present and hence his vote was not required.

The Article further provides that, "In the event of an equality of votes, the President or the judge who acts in his place shall have a casting vote". So, in cases of a tie, the president of the ICJ has a deciding vote. So far, this provision has been used twice: first in the South West Africa Cases (Ethiopia & Liberia vs. South Africa, 1961), and then in the Legality of the Threat or Use of Nuclear Weapons Advisory Opinion, 1996.

Also read: How India won an improbable election at the International Court of Justice

Is nationality of the judge a factor in voting at ICJ?

Nationality of Judges is considered at the ICJ, but only for the purposes of representation and not for voting. The most important provision in this regard is Article 31 of ICJ's statute which provides that "Judges of the nationality of each of the parties shall retain their right to sit in the case before the Court." Further, the Article states that "If the Court includes upon the Bench a judge of the nationality of one of the parties, any other party may choose a person to sit as judge." (Emphasis mine) This 'person' may or may not be a national of the appointing State. For example, in the case under discussion, Ukraine used this provision to appoint Judge Yves Daudet, who is a French national. Further, where both the parties do not have judges of their nationality, they each can appoint 'a person' to sit as judge. Beyond this, and especially for the purpose of voting, nationality is never a factor.

Also read: Bhandari's election to ICJ will have no bearing on Kulbushan case

Are there any earlier instances of voting-related controversy at ICJ?

As mentioned earlier, the South West Africa cases (Ethiopia & Liberia vs. South Africa) case involved a situation where the President of the court had to cast a deciding vote. The case by its very nature involved some difficult questions regarding decolonization. There, the casting vote was given by Judge Sir Percy C. Spender. As British-Nigerian academic and lawyer Dapo Akande has noted: "Th(e) ripple effects of this decision were felt was for many years and in many ways – both institutionally and even in term of normative development of the law. African States turned away from the Court, in the 1970s and 80s, largely as a result of this decision."

Also read: Justice Dalveer Bhandari re-elected to ICJ: the impact of this election for India

Are there any earlier examples of nationality coming in question at ICJ's voting? (when a judge voted against his/her country's position)

Nationality is never a factor in voting during the ICJ's decision making process. However, outside the court, and for the purposes of 'perception', scholars have looked at the nationality of Judges to draw their own conclusions (as is what happened in the case with Judge Bhandari). In the past, there have been some instances where the judges have voted against the stance of their respective national governments. For example, see Judge Jules Basdevant of France in the Minquiers and Ecrehos case, 1953; Judge A.D. McNair of Britain in the Anglo-Iranian Oil Co. case (U.K. vs. Iran), 1952; and Judges McNair, Basdevant and G.H. Hackworth of U.S. in the Monetary Gold Removed from Rome in 1943 case (Italy vs. France, U.K. & U.S.A.), 1954.

Also read: Kulbhushan Jadhav's right to consular access affirmed by ICJ

Will there be any possible impact on India's diplomacy?

India's Ministry of External Affairs has distanced itself from Judge Bhandari by saying that the judges "are on their individual capacities and they vote on the merits of that." Regarding Judge Bhandari, the Ministry Spokesperson said that "he happens to be an Indian national who is a member in his individual capacity on the International Court of Justice", which I believe is the correct position for two reasons. First, saying otherwise would have meant that the Judge is India's mouthpiece on the bench, which is not true. Second, diplomatically, it gives the government a tactical way to continue with its position on the ongoing conflict.

The controversy got more air because it involves a Permanent Member of the United Nations Security Council [UNSC]. Polish jurist Manfred Lachs, who served as a judge at the ICJ during 1967-1993, wrote on the public perception to blur the distinction between UNSC and the ICJ. He noted the "vital distinction" between the UNSC which is "an organ of which the members are States, speaking through their mouthpieces," and the ICJ "whose members are individuals deciding in accordance with their private consciences". (p. 59)

(The views expressed are personal.)