For me, this challenge begins today. Like Indian diplomats globally, we, in New York, too are following the developments in the Jadhav case closely. The extensive coverage of the case in the media means a wider swathe of Indians are gaining a better understanding of the role and importance of the ICJ. To us, it appears inevitable that the changed circumstances will mean a review of the decision to give up our seat on the ICJ when Judge Bhandari’s term ends in November 2017. For a few days now, some of us have been thinking that another election is looming large in the near future. Yet, all of us at the mission in New York are going about the goal of garnering votes for Dr Chadha’s candidature to the ITLOS with gusto. It isn’t a case of living in denial. It reflects the discipline of a determined group pursuing an agreed goal, to the exclusion of all else.
May is a busy month. Activities at the UN are in full swing. Our campaign for Dr Chadha’s election is proceeding smoothly. She has visited New York twice. In the company of our ebullient election officer Anjani Kumar and newly arrived legal adviser Umasankar, she has met most delegations to pursue her candidature. The rest of us are all lobbying for her case individually with other diplomats at various levels.
As I end a meeting at the UN headquarters and saunter back to the mission, enjoying the pleasant mid-morning New York weather, my phone buzzes. It is Foreign Secretary Dr S. Jaishankar from Delhi. As always, he comes to the point immediately. ‘I am giving you a telephonic heads-up. A formal message will follow. You are required in Delhi for urgent consultations on the ICJ elections.’ Aware of my oft-repeated view that the ICJ race is now a no-win situation for us, he tactfully conveys the message that things have changed.
‘Come with a plan and not as a plaintiff,’ he advises. ‘Other options are no longer on the table. By the time you come to Delhi, you should have a battle plan ready as we will be required to announce a candidate soon,’ he concludes and signs off without providing scope for any further discussion.
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Thursday, 25 May 2017
Mid-air, en route to New Delhi from New York
On the long-haul New York–New Delhi Air India flight, rummaging through the material prepared for my visit by all the officers, I come across Robert Kolb’s monograph on the ICJ. My long-time personal assistant, Vaidyanathan, seems to have sensed the primary purpose of the visit and has helpfully added it to the reading material. The book is a useful refresher course in understanding the ICJ.
The ICJ is the principal judicial organ of the UN. It is organically linked to the UN through references in Articles 7(1) and 92 of the UN Charter. The Statute of the ICJ, based on the statute of its predecessor, the Permanent Court of International Justice (PCIJ), which was part of the League of Nations system, is annexed to the UN’s Charter.
Located in The Hague, the ICJ is situated far away from the political nerve centre of New York. Yet, elections to the fifteen-member court, usually held once every three years to fill five vacancies, ensure that the political flavour of New York is never entirely lost in its composition. Also, it used to be the only principal organ that did not present a report to the General Assembly, ostensibly to keep it away from the political issues. Since 1968, though, the ICJ president presents an annual report to apprise the broader UN membership of developments in the field of international law. The practice of the ICJ president briefing the Security Council and interacting with its members in a private meeting during visits to New York has also evolved. To sum up: while judicially independent, the ICJ is an integral part of the UN system.
Elections to the ICJ are complex. They follow a devilishly arcane system adopted from the practice of elections to the PCIJ. They are conducted by secret ballot, simultaneously but separately in two bodies of the UN—the General Assembly (193 members) and the Security Council (fifteen members). Candidates have to be elected by both bodies.
Also Read: India asks Pakistan to review bill that gives right appeal to Kulbhushan Jadhav
There is no formal distribution of seats. Article 9 of the ICJ Statute requires representation of the ‘main forms of civilization and of the principal legal systems of the world’. In practice, the court’s composition reflects that of the Security Council. Each of the five permanent members have always had a judge on the bench. The remaining ten judges follow geographical distribution as in the Security Council. That is: African states have three, Latin American and the Caribbean states two, Asian states two, Western European and other states two, and Eastern European states one.
Winners are not declared based only on the highest number of votes polled (as is the case in the ‘first past the post’ system followed in elections to the US Congress or the Indian Lok Sabha). Reaching above a threshold (say a two-thirds majority of votes cast, as in the election to the UN Security Council’s non-permanent membership) also does not ensure success. In the contest for five seats, only when five candidates achieve the requisite threshold of ‘absolute majority’ of ninety-seven votes in the General Assembly are their names compared with the five candidates who have obtained the ‘absolute majority’ of eight votes in the Security Council. Those who figure in both lists are then declared winners.
In other words, the election cannot be won only by crossing thresholds. For example, when five seats are contested, if six candidates obtain the absolute majority, then the five with the highest votes are not considered to have won. Instead, balloting will continue for all the candidates until just five candidates get the absolute majority. When this happens, those who have obtained the absolute majority in both bodies are declared elected. Another ballot will take place for the remaining seat/s if less than five names are common in the lists of the outcomes in both bodies. This ensuing ballot will be restricted to the remaining candidates. If necessary, repeated ballots will be held, until the requisite number of candidates obtain the absolute majority in both bodies.
Also Read: The Indian media’s furious reaction on Kulbhushan Jadhav is completely uncalled for
The more I wrestle with the task of understanding the nuances of the ICJ’s electoral process on this thirteen-hour flight from New York to New Delhi, the greater is my self-flagellation for the enormous efforts we put in elections to other legal bodies over the last twelve months and not this one. In retrospect, I feel that it may not have been in our long-term interests. Other states have adopted a calibrated strategy to keep their resources ready for major battles rather than involving themselves in multiple electoral skirmishes. For example, France grasped the increasingly transactional nature of elections at the UN following the failure of its candidate, Mathias Forteau, to get elected to the ILC in 2016. After that, it offered reciprocal support to us, tying up its ICJ with our ITLOS candidature and we gladly accepted it as, at that stage, we did not have the ICJ election as an objective.
Subsequently, it even withdrew from the race for the Human Rights Council to be held ahead of the ICJ election in 2017 to focus primarily on its ICJ candidature. On the other hand, we are planning an effort to win the most difficult election known to multilateral diplomacy after having used up our resources in two other elections to legal bodies. No one else has ventured on the path that we are now set to pursue.
There is no point in agitating about bygone matters. You go to battle with what you have, not with what you want. We now need a game plan for the future which steers clear of any resemblance to a plaintiff pleading for a lost cause.
