The International Court of Justice (ICJ) is the highest judicial body having transnational jurisdiction, is in the process of filing a clutch of vacancies with the term of five serving judges come to an end. Dalveer Bhandari, an incumbent who represented India at ICJ has been re-elected to the ICJ for nine years term after Britain withdrew its candidate. The importance of India’s effort at securing place at the high table of global jurisprudence should be seen in the backdrop of the Kulbhushan Jadhav case, which is currently pending before the court.
What is the ICJ?
- The International Court of Justice commonly referred to as the World Court, ICJ or The Hague is the primary judicial branch of the United Nations (UN).
- The International Court of Justice (ICJ) started work in 1946, after half a century of international conflict in the form of two World Wars.
- The ICJ has its seat at The Hague, the Netherlands, and has the jurisdiction to settle disputes between countries and examine cases pertaining to violation of human rights according to the tenets of international law.
- The statute of the ICJ regulates the functioning of the Court.
- All members of the UN are automatic parties to the statute, but this does not automatically give ICJ jurisdiction over disputes involving them.
- The ICJ gets jurisdiction only on the basis of consent of both parties.
- The ICJ has passed many landmark judgements, but the execution of its verdicts have often been hindered by the skewed balance of power in the United Nations wherein enforcement is subject to veto by permanent
members of the Security Council.
- Despite inadequacies in overturning the hurdles erected by members with veto power, the ICJ remains the apex court in settling disputes between nations.
How are judges elected ?
- The ICJ has a total strength of 15 judges who are elected to nine-year terms of office.
- They are elected by members of the United Nations General Assembly and the Security Council, where polling takes place simultaneously but independent of each other.
- In order to be elected, a candidate must have an absolute majority in both bodies, which often leads to much lobbying, and a number of rounds of voting.
- In order to ensure a sense of continuity, especially in pending cases, elections are conducted triennially for a third of the 15-member Court.
- Judges are eligible to stand for re-election.
- Elections are held in New York during the autumn session of the United Nations General Assembly, and the elected judges enter office on February 6 of the subsequent year.
- After the Court is in session, a President and Vice-President are elected by secret ballot to hold office for three years.
- If a judge were to die in office, resign, or be incapacitated to perform the duties expected of her, a special election is held as soon as possible to fill the vacancy for the unexpired duration of her tenure.
- The Court also adheres to a rigid ethno-cultural matrix to ensure that it is representative of the ‘main forms of civilization and the principal legal systems of the world.’ This internal arithmetic is maintained at every
election to the ICJ. Of the 15 judges, it is mandated that three should be from Africa, two from Latin America and the Caribbean, three from Asia, five from Western Europe and other states, and two from Eastern Europe.
How member countries do nominate judges?
- All states party to the Statute of the Court are eligible to propose candidates.
- The selection process is meant to be apolitical, and is made not by the government of the state concerned, but by the members of the Permanent Court of Arbitration designated by that state to represent its interests
in the Court.
- Each group can propose a maximum of four candidates, not more than two of whom may be citizens of the said country.
- The other two nominees may be from any country, even those that are not party to the Statute.
On what basis are judges elected?
- It is held that all nominees should have a ‘high moral character,’ and credentials commensurate with those expected from the highest judicial officials of those countries.
- The Charter also makes it mandatory for judges to have recognised competence in international law.
- Every judge receives an annual base salary of $172,978, with the President receiving a supplementary allowance of $15,000.
- In order to keep the ICJ insulated from political influence, it is enshrined in the Charter that no judge can be dismissed, unless in the unanimous opinion of all peers, he is deemed to no longer fulfil the required conditions. However, this has never happened in the 72-year history of the ICJ.
What this election means, why it matters ?
- A worrisome precedent for P5 countries: The prospect of India winning against a P5 member through democratic means was something that this elite club of veto-wielding countries – Britain, China, France, Russia, and the United States – was unnerved with, because this would set a precedent that they did not want to see repeated.
- UNGA’s vote in India’s favour reflects new global order: In the 11 rounds of the election, Bhandari had been receiving the support of nearly two-thirds of the members of the General Assembly but was trailing by three votes against Greenwood in the Security Council.
- According to reports, the voting in the General Assembly, which overwhelmingly favoured India, is reflective of the new global order, which is not pleasant to the world powers.
- Trade with India could have played a role: The fact that India could emerge as a “more significant trading partner” after the UK’s exit from the European Union, or Brexit, could have contributed to the decision to withdraw.
Re-election of Justice Bhandari as ICJ judge
- Five of the 15 judges of the ICJ are elected every three years. This year there were six candidates for five slots.
- While four candidates were elected smoothly, Justice Bhandari and Christopher Greenwood of the United Kingdom ended in a dead heat as the former won the UNGA and the latter the UNSC in multiple
rounds of voting.
- The U.K. wanted to end the voting and move to a conference mechanism, which involves selecting a panel of three UNGA members and three UNSC members, who would then elect the judge.
- This mechanism has never been used before. India opposed the move, and the U.K. could not gather adequate support for its demand in the UNSC.
- The U.K. then withdrew its candidate, paving the way for Justice Bhandari’s re-election. India and the U.K. had staked considerable diplomatic goodwill in the election, and the outcome is significant
politically for both.
Why the victory is significant?
- Analysts say the election result was crucial for India to gauge the support it enjoys in the world body where New Delhi has been campaigning for reforms, including a permanent seat for itself in the powerful Security Council.
- The victory hints at a sign that the old global order is collapsing and a new one is on the anvil. (It was a contest between an old power, Great Britain, and an emerging one, India.)
- The voting in the General Assembly which overwhelmingly favours India is reflective of the new global order, which is not pleasant to the world powers.
- Britain’s withdrawal signals the first time in 71 years that a U.K. judge will be absent in the UN court. It is also the first time a permanent member of the Security Council has lost to a non-permanent member for a seat at The Hague.
- The major diplomatic victory cements India’s growing clout on the world stage.
- Justice Dalveen Bhandari presence ensures that India will continue to remain on the legal high table of the world at a time when several globally significant cases such as the one involving former Navy official Kulbhushan Jadhav against Pakistan is under way there.
Take away for India
- Earlier, the 11-judge bench of the International Court of Justice (ICJ) at The Hague unanimously agreed to accept India’s plea against Pakistan’s death sentence to Kulbhushan Jadhav.
- The bench led by Judge Ronny Abraham asked Pakistan not to execute Kulbhushan Jadhav till the final verdict in the case is not pronounced by the International Court of Justice.
- Now this election for India, soon after its failure to gain membership to the Nuclear Suppliers Group, the lobbying for the ICJ election has different lessons.
- With all five permanent members of the UNSC fiercely locking arms to protect their collective interest of dominating the world body, India’s success was built primarily on the support of developing countries, among
which it has nurtured goodwill over the decades.
- Japan also appeared to align with the P-5.
- India’s call for a more equitable world order has a better resonance among developing countries than the custodians of the current order.
- India’s support in the UNGA was expanding with subsequent rounds of voting, a reality the U.K. and the U.S. could not brush aside.
- For India, the takeaway is clear: to find a louder global voice, it also needs to put more emphasis on ties with countries away from the high table. India’s victory at the ICJ reinforces the importance of small power diplomacy.
- The ICJ, comprising 15 judges, was established in 1945 to settle legal disputes between nations in accordance with international law and is the principle legal body of the United Nations.
- Britain is the fifth permanent member of the Security Council. This would be the first time that Britain, a veto-empowered permanent member of the United Nations Security Council (UNSC), wouldn’t have any representation on the ICJ.
- The victory makes Dalveen Bhandari, the third Indian to secure a prominent position in a United Nations (UN) body in recent months.
- International law expert Neeru Chadha was elected to the UN body, the International Tribunal for the Law of the Sea (ITLOS), in Hamburg in June. And last month, Soumya Swaminathan, director general of the Indian Council of Medical Research (ICMR), was appointed deputy director
general for programmes at the World Health Organization (WHO) in Geneva.
- Bhandari is the fourth Indian judge to be elected to the ICJ after B.N. Rau, Nagendra Singh and R.S. Pathak.
- India has been seeking that the democratic process need to be played its full course in both the Security Council and the General Assembly and there should not be an intervention or adoption of a process that has
never been used before or the one that undermines the voice of the majority.
- “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.”
“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.”
The victory tells us that indeed a new India is emerging that is no longer risk-averse and is willing to fight it out openly. In this case, of course, the world witnessed how the rise and fall of powers continues to shape the global governance architecture.