P-5 Privileges Breached as Britain Blinks and Indian Judge is Elected to International Court of Justice

The UK withdraws its candidate, leaving the field clear for Dalveer Bhandari, who had the overwhelming support of the UN General Assembly.

New Delhi: In a last-minute move at the United Nations on Monday afternoon EST, Britain withdrew its candidate for the International Court of Justice, leaving the field clear for Indian candidate Dalveer Bhandari to win the requisite majority in both the UN General Assembly and Security Council and be re-elected to the UN’s principal judicial organ.

This marks the first time that the UK has not been part of the ICJ since its inception in 1946 and breaks an unwritten rule – taken for granted by the big powers and the rest of the world – that the five permanent members of the Security Council (the P-5) are guaranteed a seat at the world court.

The formal news of Bhandari’s victory was broken on Twitter almost immediately by Syed Akbaruddin, Indian ambassador to the UN and principal coordinator of India’s ICJ campaign.

With two names still on the ballot on Monday, the 193-member UNGA and 15-member UNSC were supposed to start their afternoon session at 3 p.m. But, even as the allotted time for voting passed, the chairs were conspicuously missing.

When he reappeared, UNGA president Miroslav Lajčák attributed the delay to the need to coordinate actions with the Security Council. He then said that he had received a letter from the UK’s permanent representative to the UN, Matthew Rycroft, which he proceeded to read out. An identical letter was sent to the UNSC president, Sebastiano Cardi of Italy.

“The current deadlock is unlikely to be broken by further rounds of voting. We have therefore consulted our candidate, Sir Christopher Greenwood, who has confirmed that his candidature for re-election to the International Court of Justice should be withdrawn,” Rycroft wrote in a two-page letter.

20171120 MR Letter to President of the General Assembly – ICJ by The Wire on Scribd

As a result of Greenwood’s withdrawal, Bhandari was the only remaining candidate left for the fifth and last vacant seat on the ICJ.

However, he still couldn’t be automatically elevated to the ICJ. Both UN bodies then went ahead with the voting process, with the ballot paper listing a single name.

In the Security Council, all 15 members voted in favour of Bhandari. The larger General Assembly witnessed 10 abstentions, but the remaining 183 nations cast their votes for the Indian candidate.

Having officially crossed the absolute majority mark in both UN bodies, Bhandari was declared elected, joining colleagues from France, Somalia, Brazil and Lebanon who had got through on the first day of voting on November 9 for a nine-year term that will begin in February 2018.

Official congratulations poured in from the Indian leadership, with Indian missions also tagging their respecting host countries on social to media to publicly acknowledge their backing.

In its official response, India noted that the UK withdrew its candidate “after a closely fought electoral process”.

“We appreciate the UK decision,” said the MEA’s press release. It added that the “extraordinary support from the UN membership is reflective of the respect for strong constitutional integrity of the Indian polity and the independence of the judiciary in India”.

Down and up

It has been a roller-coaster ride for Bhandari. The former Indian Supreme Court judge was supposed to have had a straight contest aganst Lebanon’s Nawaf Salam for the Asia seat. India’s campaign literature focused on the Lebanese rival. This expectation was based on the unwritten norm that seats in the ICJ were allotted based on the geographical categories of the UNSC.

Bhandari’s campaign began late in June this year – compared to Salam, whose official candidature was announced by Beirut two years ago. In fact, Bhandari’s re-nomination itself was not an easy process, as the Indian government had considered other candidates too. India had even considered letting go of the seat at one time, but New Delhi’s case against Islamabad in ICJ over the death sentence given to an Indian national, put a different hue on the matter.

His first nomination during the UPA-2 government had also been controversial as he was a sitting Supreme Court judge.

Bhandari’s candidature was finally announced after Neeru Chadha’s election to the International Tribunal for the Law of the Sea (ITLOS) – which did not leave enough time to or diplomatic capital to tie-up the required bilateral quid pro quos.

While Bhandari did get more than the majority in the UNGA in the first five rounds on November 9, he failed to pass muster in the UNSC.

To the surprise of many observers, Greenwood, who was standing for re-election, could not get past the absolute majority mark in the General Assembly – the first time this had happened for any of the five permanent members of the Security Council (P5).

Due to their losses, Greenwood and Bhandari faced each other for the run-off for the last remaining seat – an unprecedented challenge to the P-5’s informal privilege of representation on the 15-member ICJ bench.

There were seven rounds of voting for the direct India-UK contest over two days – one on November 9 and six on November 13.

India’s campaign against the UK was kick-started by the verdict of the sixth round on November 9, when Bhandari got 115 votes to Greenwood’s 76. This shaped the narrative that the election had a larger purpose as far as a majority of the world’s countries were concerned – to get the big powers to defer to the UNGA, and correct the geographical imbalance in the court, where the ‘West’ is clearly over-represented.

ALSO READ: India, UK in Tight Race Amidst Growing Pressure to Redress ICJ’s Regional Imbalance

In geopolitical terms, Indian diplomats say the India v UK contest seems to have tapped into latent tensions between the UNSC – largely dictated by permanent members – and the sentiments of the General Assembly.

The five rounds of voting on November 13 ended with India increasing its lead against the UK in the UNGA 121 to 68.

However, the UN Security Council continued to give a majority to Greenwood, with all the P-5 members plus Japan, Italy, Sweden and Ukraine voting in favour. India got the votes of Kazakhstan, Senegal, Egypt and Ethiopia. Uruguay, which had voted for India on November 9, abstained.

Right after that day’s voting, Indian officials got whiff of a rumour which began doing the rounds that New Delhi was “likely to withdraw” Bhandari’s name from the race.

An untested route

Even as that rumour was countered, the UK floated a proposal with fellow UNSC members that since the deadlock between the two chambers was unlikely to be resolved, it was time to invoke article 12 (1) of the ICJ statute, which calls for a candidate for judgeship to be chosen through a ‘joint conference’ between the UNGA and UNSC.

This route had never been utilised in the UN’s 72-year-old history. An identical clause had only been used once – in 1921 – to break the deadlock at the League of Nations for filling a seat in the Permanent Court of International Justice. The choice of that joint conference ended up being a third candidate who had not been on the original ballot paper.

However, this path of a ‘joint conference’ was full of legal questions, as the ICJ statute is silent on a number of operational issues.

ALSO READ: As India, UK Battle It Out For Last ICJ Seat, Here’s A Look at What Happens Next

This was perhaps the reason other UNSC members did not back Britain’s desire to invoke the joint conference mechanism, as hinted in the British permanent representative’s letter:

“This mechanism has not been used in relation to an election for the International Court of Justice. However, the fact that it has not been used does not mean that it should not be used when the need arises. It is the view of the United Kingdom that this election would have been an ideal opportunity to use the mechanism envisaged by the Court’s own Statute to break the current deadlock. It is also the United Kingdom’s view, as it is of other delegations, that some thought needs to be given to this procedure before the next ICJ election in order that it might be used when it is clearly needed.”

Incidentally, even when Argentina withdrew its candidate, Susana Ruiz Cerutti, in a run-off against Jamaica in 2014, it had also raised similar points about article 12(1). “The fact that this procedure has not been regulated to date cannot serve as a valid argument for ignoring or dismissing the provisions of the statute. Rather, it shows the importance of making the necessary arrangements for the implementation of such mechanism should similar situations arise in the future,” the Argentine envoy wrote in a letter dated November 12, 2014.

Bruising diplomatic battle

Over the last week, India and the UK deployed the full might of their diplomatic machinery to get the maximum numbers not just in the UNSC, but also in UNGA.

In Delhi, ambassadors were called in to the Ministry of External Affairs, while the minister made phone calls to her counterparts. Over in New York, the lobbying was intensive, with Akbaruddin vocally rebutting rumours of India withdrawing from the race. The focus was to get over two-thirds of the UNGA on India’s side – 129 votes – in order to act as a moral pressure point.

ALSO READ: To Beat Back UK Challenge on ICJ, India Seeks Two-Thirds Majority in UN General Assembly

Till Monday morning, there were no signs that the UK was planning to drop out.

According to diplomatic sources, the first indication that London had changed its mind and was ready to withdraw Greenwood came an hour before the start of the crucial voting session. However, the UK letter was formally released only a few minutes after 3 p.m. EST.

An Indian official claimed that the UK’s plan had been to see the voting trends for at least two rounds. With the possibility that two-thirds may vote for Bhandari in UNGA in the first round itself, the UK decided not to go through, he said.

Another official noted that things moved very fast in the last hour, but that the Indian side had “a slight inkling” that the UK would recognise the dominant mood of the room in the UNGA.

Sebastiano Cardi, the permanent representative of Italy to the UN and president of the Security Council for November, casts his country’s ballot at the election for the judges to serve on the ICJ. Credit: UN Photo/Rick Bajornas

In its official letter, the UK gave two reasons for withdrawing Greenwood. The first one being that the stalemate was unlikely to be broken by further rounds of voting.

Secondly, Rycroft wrote that the decision was taken keeping in mind the “the close relationship that the United Kingdom and India have always enjoyed and will continue to enjoy, and the fact that both candidates fulfil the requirements for election and have already served the court diligently with impartiality and independence.”

Indian diplomatic sources told The Wire that both India and the UK had reached out to each other during the past one week. Both countries affirmed that bilateral diplomatic relations would not be impacted by the election contest, it is learnt.

In Britain, consternation

Next year, the UK will be hosting the Commonwealth summit, with hopes to re-energise the group to channelise its post-Brexit diplomacy. The UK is hoping that India will take more of a leadership role in the grouping, in order to dispel the notion that it was merely a cozy club of Anglo-Saxon countries.

Inevitably, the decision to withdraw Greenwood has already led to domestic recriminations over the global stature of post-Brexit Britain.

This is the second defeat suffered by the UK in the UN General Assembly this year. Earlier, it failed to stop a resolution which referred the Chagos island dispute with Mauritius to the world court.

“The UK’s failure to guarantee a place on the court of an organisation it helped to found has been interpreted as a sign of its increasingly irrelevance on the world stage following the decision to leave the European Union,” said The Independent.

The BBC opined that UK’s withdrawal “will be seen by some as a shift in the balance of power at the UN away from the Security Council.”

According to the Guardian, the UK was “partially the victim of residual international resentment  in the UN General Assembly of the dominance and privileges of the permanent five members of the Security Council.”

There was criticism from within the ruling Conservative party on the withdrawal of the British candidate.

During Oral Questions in UK parliament on Tuesday morning, Tory MP Robert Jenrick described the loss of the ICJ seat as a “major failure for British diplomacy” and asked what lessons the FCO will take from it. UK’s secretary of state for foreign and commonwealth affairs, Boris Johnson said that he did not agree with his colleague’s assessment. “The house will note that it has been a long-standing objective of UK foreign policy to support India in UN,” Johnson agreed.

Earlier, another Patrick Grady, an MP of opposition Scottish National Party, asked whether the forthcoming Commonwealth summit will discuss the “welcome appointment” of Bhandari at the “expense” of the British candidate. He described it as the “sun already setting on Empire 2.0”, a reference to Tory Brexiters who had spoken about a new Global Britain.

It is not yet clear what the break in the tradition of the P-5 occupying the ICJ bench would mean for pushing forward reforms in the Security Council. The difficult task on enlargement would require the cooperation of the permanent five.

As a senior Indian official told The Wire, Monday’s results represent a breach in the informal privileges of the P-5, not their formal responsibilities. “But it does show that times have changed,” he added.

So far, India has had four permanent judges at the ICJ, including Bhandari: Sir Benegal Narsing Rau (1952-53), Nagendra Singh (1973-88), Raghunandan Swarup Pathak (1989-1991), and Dalveer Bhandari, first elected in 2012.

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Author: Devirupa Mitra

Devirupa Mitra is Deputy Editor and Diplomatic Correspondent at The Wire. A journalist with over 15 years of experience, she has covered nearly all beats, from transport to the civic beat at city desks. For the past seven-odd years, she has been focused in tracking developments in Indian foreign policy, with special interest in India’s neighbourhood – from the big picture trends to the minutiae of policy-making within the Ministry of External Affairs. Her twitter handle is @devirupam.

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