The ICJ Elections 2017 undoubtedly represented a historic moment in International Relations. For the first time in history, the United Kingdom, P2 of the UNSC, has lost its seat in the International Court of Justice since its establishment in 1946. International media describes this as a true reflection of the changing global order and a huge diplomatic loss not only for Britain but also for the privileged bloc in the United Nations.
National media, on the other hand, is busy praising Indian diplomacy and the Ministry of External Affairs and its role in shifting the balance of power away from the Security Council in the United Nations. However, some lateral thinking on the issue brings me to a few other questions. First, what do the 2017 ICJ elections mean to the International Judicial Conscience? Second, is it a historic moment for International Law? Third, does this lauded victory of the UNGA against a P5 nation mean anything beyond an aberration in the existing world order? Let me begin my lateral view on the issue, by addressing these questions in the reverse order.
The European media condemns the British failure as a punishment for Brexit, alongside other diplomatic losses the United Kingdom suffered very recently. Almost on the same day, it withdrew from the ICJ Elections, the U.K. failed to prevent EU agencies such as the European Medicines Agency, and the European Banking Authority from moving out of London. Earlier in June, the United Kingdom had again failed in its attempt to prevent the UNGA from requesting an advisory opinion from the ICJ on the sovereignty of Chagos Islands, over which the Westminster has considerable interest. A common phrase describing these losses is the United Kingdom’s “diminishing status” in the world order.
Nevertheless to represent the situation as UNGA’s victory or Global South’s victory is something a far-fetched imagination. The very same evidences may be presented together to forge an argument that the political scenario doesn’t represent an equation between the global north and south, as everyone is arguing, but rather is about the north (U.K.) v. north (E.U.). It can even be argued as a scenario representing a North – North co-operation, between the Northern U.K. and a seemingly North, India. This is a perfectly arguable proposition, given that India is now closely working with the United States and the remaining western bloc, pitching against the Asian dominance of China. There is hardly anything for the Global South in it, or anything substantially against the P5 nations. It is highly unlikely that this event may initiate or condition the change in the current structure or functioning of the United Nations.
The Global South need not benefit anything particularly from this win for at least two reasons: (1) In the ICJ, there won’t be much change in the judicial policy, as J. Bhandari himself asserted that he would continue representing the common law system inherited from the British, and (2) there is increasingly a chance that India may play North in order to keep pleasing its new found allies and other self-interests. Look at the U.K’s trade interest with India, which the Government of the U.K. is highlighting to save its face, and which the Indian protagonists portray as a double-win for India. A thorough reading of these statements of Indian and the U.K diplomats can reveal the global elite synergy, if not connivance. Take a counter-narrative to the incident, where instead of India, Lebanon (who found more support that U.K. and India in 2017 ICJ and whose win was crucial in creating this deadlock) remained in the deadlock. The UNGA would have supported them too with the same vigour and vehement, but, could it have precipitated the same result? No, I believe. Now even if we reimagine the narrative with a Chinese-aligned India, the result would be again not the same. This means that should the U.K. withdraw, then it cannot go against the interests of the North. We must also remember that 2107 elections is not going to establish a precedent of the UNSC candidate withdrawing from the elections, yielding to the will of the General Assembly. It is just a political choice of the United Kingdom.
This brings us to the second question of interest whether it represents a historic moment for International Law, it must be argued “nought”. Once again, the general reluctance of the nation-states to resort to the international legal system prevailed over the better interests of International Law. The nations by settling the issue among themselves circumvented Article 12 of the Statue of the International Court of Justice into action. Many would argue International Law is not a Law, or the International Court is not a Court, but a disguised political interest and institution respectively. Yet, Article 12 is much more than that of a simple political scheme. It is a part of a legal instrument which established the World order after the World War II and has the seeds of representing the will of an international community more than the will of the nations.
Article 12 of the Statute speaks about constituting a joint conference of 6 members, three each from the UNSC and the UNGA to fill the vacancy in the Court based on an absolute majority. India’s Permanent Representative to the United Nations, Syed Akbaruddin has denounced this method as an out-dated instrument and has said that 3 or 9 persons cannot decide upon the judges comprising the World Court. Others had argued that the joint conference mechanism is a trump card of the UNSC. While this may be a possibility, it is probably not the only possibility. Article 12(2) read with Article 10(2), and Article 2 of the Statute could have far more implications than those represented by the above claims. Article 10(2) of the ICJ statute could have barred any veto power gambit in matters connected with the joint conference, whereas Article 12(2) could have opened up an opportunity to nominate a person of high international standing and judicial capacity beyond the nominations forwarded by the respective nations. Though it is highly ideal and unlikely to happen, a resort of the Article 12 procedure could have set a precedent in favour of the international community against the power-play of nations, since in any case, it would leave open the way to invoking Article 12(2). Remember that in 1921, when the procedure of joint commission was used for the first and the last time, a judge was chosen not from the candidates in the deadlock. It is also interesting to note that Article 12 could have led us to the International Court of Justice for deciding which candidate should fill the vacancy if the stalemate continued even in the joint conference. Therefore, viewing it from the perspectives of a student of International Law the ICJ elections 2017 lost an occasion to open up new opportunities in International Law and also an opportunity to attempt further experiments in submitting an issue to a structured extra-national process.
While the international diplomats described Article 12 as a strange process and as a trump card in the hands of P5 nations, they seem to have ignored summarily the 1985 legal opinion provided by the United Nations Secretariat on the International Court of Justice Election Procedure to be followed in the Security Council and the General Assembly. The opinion has clarified regarding the procedures involved in the operation of Article 12. The legal opinion has even suggested recommendations as to composition of a joint conference such that (i) the General Assembly representatives will not be delegates of States represented in the Council; (ii) it allows for maximum representation of different systems of law; and (iii) the members are elected such that they should not have a direct interest in the outcome of the elections. It appears that all these legal issues were kept in the wings, while the diplomatic activity was in full swing at the ICJ elections 2017. This is a flagrant violation of the Principle 2.3 of Burgh House Principles on the Independence of the International Judiciary, which requires appropriate safeguards against nominations, elections and appointments motivated by improper considerations and also calls for transparency in all these processes.
This brings to the last and most important question, which I raised earlier, what it means to international judicial conscience. The growls and grunts which overshadowed the ICJ elections 2017 is completely oppugnant to the spirit of Article 2 of the ICJ statute which boldly states that the Court should only be composed of independent judges, elected regardless of their nationality from among persons of high moral character. Therefore this historical moment represents nothing but a general reluctance on the part of the Sovereign nations to submit to anything which is genuinely extra-national process and an obvious violation of Article 2 of the ICJ Statute. We must remember the principle of judicial independence enshrined in Article 2 of the ICJ Statute is highly unique in that it mandates to constitute ICJ with Judges, regardless of their nationality and diplomacy. It required the nation states to work together in building up a judicial institution of the highest quality all-inclusive jurisprudence. The scope of Article 2 is such that individuals even from non-State parties to the ICJ Statute can become Judges of the Court. It is highly unfortunate that when Article 2 proudly describes a system of an election where individuals are brought to the Court, not citizens, J. Bhandari, soon after the elections, is reported to have declared his re-election as a victory of India and Indians. Historically, it is argued that the court must be more of the character of a judicial procedure and less of a diplomatic accommodation. However the ICJ elections 2017, in total, seem to have reached new heights in terms of diplomatic involvement and the diplomats seem to have appropriated the judicial appointments process for themselves and for their rat race. Much desolate, International Judicial Conscience is choked and is deprived of any expression and role in the appointments of the judges of the ICJ. It is a wonder how the international community considers the 2017 elections as the historical precursor to the United Nations reforms. For me, it would be extremely surprising if anything of that sort ensues. Ideally speaking, this was the right time for the ICJ to invoke its powers under Article 70 of the Statute and could have recommended amendments to procedures involved in its judicial appointments. Unfortunately, even this seems to be nearly impossibility, while we are eloquent about UN reforms. Having suffered such severe contempt to its structure, this could have actually saved the face of the International Judicial Conscience; forget the diplomacy of the UNSC or the UNGA, whose adoption is needed for bringing such amendments into force.