How India Beat UK For Major Win At World Court (ICJ)

It is hard to remember another election of judges to the International Court of Justice that's been as fraught as the one that concluded at the United Nations in New York this week. India's Justice Dalveer Bhandari was re-elected for a 9-year term after Britain withdrew its nominee, Justice Christopher Greenwood. What is clearly being considered a major triumph for Indian diplomacy has been viewed as major a defeat for Britain, leaving it without a representative at the international court for the first time in 71 years. In some ways, perhaps, the final defeat of the Empire by an erstwhile colony. 

15 judges, elected to 9-year terms, compose The International Court of Justice. They are elected by securing an absolute majority at the United Nations - in both the General Assembly (97 votes) and the Security Council (8 votes), separately. A process that needn't but often can end up taking several rounds of voting. A third of the court is elected every three years to ensure what the ICJ calls a measure of continuity.

Congress MP and India's former candidate for UN Secretary General Shashi Tharoor tweeted that Britain's decision to withdraw its candidate citing friendly relations with India was the "best possible way for the standoff to end." Britain's attempts to push for a little-used arbitration facility for the elections, by calling a joint council of three members each from the General Assembly and Security Council didn't go down well. Sources say even the P5 (the five permanent members of the Security Council), expected to support the UK as a fellow P5 member, were divided on their decision to back it. After having been through at least 11 rounds of voting that ended in a stalemate between Britain and India, the last-ditch attempt to call for the joint council, according to many, was not a sign of strength but growing weakness of a superpower. One diplomat said it became "morally difficult" for Britain to continue its fight - the optics of winning, especially as it readies for a Commonwealth Heads of Government  (CHOGM) summit next year, simply proved untenable in the end.

The British Ambassador's statement withdrawing Justice Greenwood from the race was gracious- clearly aimed at underscoring that the bilateral India-UK relationship was worth more than this fight. But, as the BBC says, it is unlikely to be able to shake off the symbolism of defeat - of "reduced status on the world stage." While that may be true, and India can rejoice over Justice Bhandari's re-election, sources suggest that the very fact that Britain and India found themselves locked in this unexpected battle was a rude shock- both, to a permanent member of the UN Security Council and an emerging power vying for permanent status on it. Both countries were caught off guard by Lebanon that at the very last minute put its hat in the ring, making what should have been an easy election - 5 candidates for 5 seats, suddenly more complicated and controversial than anticipated.

While the final win at Britain's expense clearly positions India as a major player globally, it also poses several questions for those basking in this diplomatic victory. Many have erroneously argued that Justice Bhandari's election is particularly critical at this juncture - when India has a pending case at the ICJ related to Pakistan's arrest, conviction and sentencing to death of Kulbhushan Jadhav, an Indian national accused of spying in Balochistan. While India has petitioned the world court against Pakistan's violation of Geneva Conventions on the treatment of "prisoners of war" by denying India consular access to him, it is useful to remember two things - one, that Pakistan, in accordance with the regulations of the International Court of Justice, will be allowed an ad-hoc judge to sit in the proceedings related to the case; and two, that as a judge of the International Court, Justice Bhandari will no longer represent or adjudicate for India, but will be bound to uphold International law as a global citizen.

Another equally compelling question is over how this win - and the aggressive diplomacy undertaken to ensure it - squares with India's predominant, healthy skepticism towards multilateral fora, even though its foreign policy is aimed at more prominent roles in them, starting with the reform of and permanent membership at the UN Security Council. This is, after all, the same United Nations that has most recently been extremely critical of India on the issue of providing asylum to Rohingya refugees. (India is not signatory to the UN Convention of Refugees, 1951.)

At a recent General Assembly plenary meeting, India's man of the moment, Permanent Representative to the UN Syed Akbaruddin called the UN Security Council "dysfunctional", a body that "no longer reflects contemporary realities and therefore confronts a crisis of legitimacy and credibility." In the past, especially when it comes to boundary disputes, sanctions or active intervention in global conflict theatres, and/or human rights issues either at the General Assembly, as a non-permanent member of the Security Council, and at individual agency meetings, India has naturally erred on the side of national interest. But while national interest is the raison d'etat for sovereign nations, Justice Bhandari's election might be an inflection point - not just vis-a-vis the retreat of a major power like Britain, but one for India, where it steps into this new multilateral role fully aware of the global responsibility it will now shoulder, where global values and conventions that often come up for adjudication at a forum like the International Court of Justice could often chafe against the principles of realpolitik.

(Maya Mirchandani is a Senior Fellow at the Observer Research Foundation, Non-resident Senior Fellow at the Atlantic Council in Washington, D.C., and Consulting Editor for NDTV's show, India Matters.)

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