‘India’s ICJ Election Victory in 2017 Exorcised Ghosts of the Past’

India’s victory in the elections to the International Court of Justice (ICJ) in 2017 “remains sui generis (of its own kind) and a hard feat for anyone else to match”. It was a momentous diplomatic victory that not only “exorcised the ghosts of the past”, was the first time an incumbent judge had lost to another incumbent, and the first time that a P5 member of the UNSC — the UK — would not be represented in the Court after an epic battle that saw Britain back down in the face of India’s relentless challenge.

“While we were privileged to be in the trenches on the frontline, many of our colleagues toiled in back rooms in different parts of the globe to ensure a successful outcome,” Syed Akbaruddin, India’s Permanent Representative at the UN at the time, writes in “India VS UK – The Story of an Unprecedented Diplomatic Win” (HarperCollins).

“There are many unsung heroes. Collectively, we exorcised the ghosts of the past. In many small ways the efforts reflected subterranean changes in style and substance that were the building blocks of a much more confident approach to thinking about and implementing foreign policy goals.

“In India, the resonance of a successful outcome went far beyond the diplomatic establishment. It fed into a growing belief that with the right focus and direction, and with necessary adjustments, seemingly difficult changes for the better could be made to happen,” Akbaruddin, who served at the UN for four years and is currently Dean at the Kautilya School of Public Policy, writes.

India had been unwilling at first but was prompted to enter the ring in the wake of the Kulbhushan Jadhav case, which proved the importance of having an Indian judge in the court (Judge Dalveer Bhandari’s term was due to end in 2018). The contest that followed was like a “Second War of Independence” in the words of then External Affairs Minister Sushma Swaraj, who led her troops from the front in the David-and-Goliath fight against the permanent members of the Security Council, who put all their might behind the UK — in spite of which India prevailed.

The odds were formidable as the election cycle of November 2016-November 2017 was a rare period for India as polls were to be held for three key UN legal bodies — the International Law Commission (ILC), the International Tribunal for the Law of the Seas (ITLOS) and the ICJ.

Given that elections to each of them are usually held at different intervals over a nine-year period, Indians were represented in each of them.

“We now need to decide if we are willing to contest all the three in the space of a year. If so, we will be the only country to do so. We should choose with care and caution, decide early and begin the pursuit of our chosen objectives forthwith,” Akbaruddin writes in the book that makes for riveting reading quite akin to a thriller.

Tasked by Sushma Swaraj to focus on the first two elections, these were quickly wrapped up quite comfortably.

The ICJ go-ahead came only in May 2017, long after five candidates (four of them incumbents) had already been declared in the fray for the five seats that were falling vacant but when the decision was taken, the entire Indian establishment — from the ministry to Indian missions around the world to that at the UN — went flat out to secure Judge Dalveer Bhandari a full nine-year term (he was then filling a mid-term vacancy.

The ICJ elections require a candidate to secure an absolute majority in the General Assembly and the Security Council. After five rounds of voting in mid-November, 2017, four candidates (three of them incumbents) were declared elected, leaving Judge Bhandari and Judge Christopher Greenwood of the UK, the other incumbent, in the fray for the fifth seat.

That was when the UK attempted to flex its muscles, making known its intention to stop further voting by invoking Article 12 of the ICJ statute to call a “conference” for a “compromise”. This had never before happened in the history of the UN.

Thereafter, the UNGA President called a meeting in his chambers to explore a way forward. The others present were the UNSC President, Akbaruddin, the UK’s Permanent Representative, the legal advisor to the UNGA President and some UN Secretariat officials.

The arguments flowed back-and-forth till Akbaruddin forcefully declared that a “conference” would raise an uproar as it would view it as a “purposeful bid to undermine the General Assembly without any consultations. I conclude that in this case, what may be legally permissible is not politically wise and diplomatically sagacious”. Saying so, he left the chamber due to “other commitments”.

What Akbaruddin was banking on was that a permanent UNSC member could not risk a loss to a non-permanent member.

That was the end of the matter, as Boris Johnson, then the UK Foreign Secretary, informed Sushma Swaraj that Judge Greenwood’s candidature was being withdrawn. The Foreign Office concluded later that “the inability of the government to secure the re-election of Sir Christopher Greenwood to the court was a failure of UK diplomacy”.

“At one level, legal analysts projected the result as ‘an important departure from ICJ election practice’. They said, ‘First, it did away with the tradition that reserved a seat on the court for the five permanent members of the Security Council. Second, it was noteworthy because it resulted in a reallocation of seats amongst the regional groups’.

“Whether this was on account of Indian exceptionalism, and if it set a trend for the future, can only be understood following the subsequent ICJ election results,” Akbaruddin writes.

The election, “also symbolised the coming of age of Indian multilateral diplomacy. The lessons we learnt are many. Our decision-making process may, at times, be time-consuming and can put a heavy load on ensuring the implementation of a decision that has taken a long time to arrive at in the first place. However, once a decision is taken, with all on board, the trajectory is never half-hearted. It usually proceeds at full throttle to achieve success. Focus provided by the political leadership sets the tone for the rest,” Akbaruddin maintains.