International Law

The Significance of Dalveer Bhandari's, and India’s, Recent Election to the ICJ

By Arun M. Sukumar
Wednesday, December 13, 2017, 9:00 AM

On Nov. 21, the U.N. General Assembly and Security Council voted to fill the last vacant seat on the International Court of Justice (ICJ), electing India’s Dalveer Bhandari to the role. As far as U.N. elections—usually unexciting affairs—are concerned, this one came right down to the wire. With India and the U.K. competing directly for the last seat, seven rounds of voting determined the victor. The deadlock ended only when the U.K. withdrew its candidate, Christopher Greenwood. Bhandari was then endorsed unanimously by the Security Council and was elected with an absolute majority in the General Assembly.

Judges of the ICJ do not create international law; they interpret it. Would it have mattered, in strictly legal terms,whether an Indian or British judge—both coming from common law traditions—took the vacant seat at the court? Arguably not. However, the interpretation of international law by states is an eminently political exercise, and the faith placed by U.N. member states in an Indian nominee is therefore also a reflection of India’s credentials. In fact, the ICJ election says as much about contemporary challenges to international law as it does about the states that will emerge as its future arbiters.

The U.N. re-elected Bhandari for a second term, but this time, he was elected to a “different” seat on the court. It has become customary for seats on the ICJ to be represented by the five U.N. regional groupings: Africa, Asia-Pacific, Eastern European, Latin America and the Caribbean, and the Western Europe and Other Groups (WEOG). In the early rounds of voting, the Asia-Pacific seat, for which Bhandari was ostensibly running, went to Nawaf Salam, Lebanon’s candidate then its serving permanent representative to the United Nations. Bhandari and Greenwood were slugging it out for a seat that was reserved traditionally for a Western Europe and Other Groups (WEOG) nominee.

The U.K.’s decision to withdraw Greenwood’s candidacy means that London will not have its judge in the ICJ for the first time in the court’s 71-year history. It is just as well, considering that Greenwood did not carry the popular will of the General Assembly, with Bhandari leading in all previous rounds of voting. That said, the race likely lasted longer than it should have on account of the P-5 group in the Security Council holding out in favour of the Briton. One could well dismiss popular support for India as a show of solidarity by developing countries. But it is often smaller states that are affected most by the working of international regimes, and it is probable that they threw their weight behind a state that could be relied upon best to preserve them.

Much press has been dedicated to the election results: It has been variously termed a writing on the wall for U.N. reform, the arrival of India as a global power, and a blow to the post-Brexit U.K.’s attempts to exert political clout. But, for India’s part, the decision to put forward a candidate may not have been as strategic a move as suggested. India was late to get its own ducks in a row for the election, forwarding Bhandari’s nomination to the U.N. at the last minute. New Delhi’s immediate motivation to have an Indian judge in The Hague was its pending case against Pakistan—brought before the ICJ in early 2017—to stay the execution of an Indian national jailed across the border. India argues it was denied consular access under the Vienna Convention on Consular Relations to its citizen Kulbhushan Jadhav, sentenced to death earlier this year by a Pakistani military court for “espionage and terrorism.” A litigant is allowed to nominate an ad hoc judge to the ICJ if it is not represented in the court in the instant hearing. Still, India’s efforts to secure a full-time seat for Bhandari shouldn’t surprise anyone: As a 2004 study by the University of Chicago’s Eric Posner and Miguel Figueriedo found, judges at the ICJ don’t leave their flags behind. In an overwhelming majority of cases, the study concluded, ICJ judges support their home states in disputes before the court.

But it isn’t why India won this contest that should interest observers of international politics—it’s what comes next. New Delhi’s short-term interests notwithstanding, India remains a scrupulous practitioner of international law. In an age of revisionism and aggressive lawfare led by China, India’s election to the ICJ is likely a stabilising development.

In the last decade, China has challenged international legal principles and regimes in an unprecedented fashion. It has rejected the arbitral award handed down in 2016 by the International Tribunal on the Law of the Sea (ITLOS) in its South China Sea dispute with the Philippines; refused to lift protectionist measures that cloud its ambition to be treated a “market economy” under its Protocol of Accession to the World Trade Organisation; fanned the flames of its land and maritime border disputes in Asia through threats of aggression and use of military force; violated the sovereign principle of non-interference by pursuing cyber operations against the United States, India, Japan and other economies; and arguably been complicit in letting North Korea conduct malicious cyber activity through its own communications infrastructure. China’s aggression has spooked the normally sanguine New Delhi to join hands with the United States, Australia and Japan to form the “Quad”—a loose political coalition of states meant purely to flex its political muscles in Asia through military exercises or joint diplomacy.

For its part, India has made few such attempts to claim any exceptional status in international law. Admittedly, it has stayed out of the Nuclear Non-Proliferation Treaty and the Comprehensive Test Ban Treaty (CTBT)—citing their discriminatory treatment of “legitimate” and “illegitimate” nuclear weapons states—but negotiated both instruments down to the dotted line at the time of their creation. India’s decision to support the CTBT’s creation may itself have had something to do with American pressure, but once negotiations began, India’s legal positions were consistent and made in good faith. It is slated to soon ratify the Convention against Torture. There is debate today between ministries within the Indian government on the matter of signing the Additional Protocols to the Geneva Convention: A few years ago, this would have been unthinkable given the Indian Army’s resistance against any instrument that may invite attention to its operations in Kashmir. In 2015, it led, negotiations to realise the Paris Accords on climate change. For a country that swore by the principle of Common But Differentiated Responsibilities—calling on developed countries to bear a more onerous responsibility to mitigate their carbon emissions—India’s support for the Paris Accords signalled its flexibility in the interest of fighting climate change. At the recently concluded (but unsuccessful) U.N. Group of Governmental Experts (GGE) meetings to articulate cyber norms, India supported—and later publicly endorsed—the application of international law to cyberspace, including the right to pursue countermeasures against internationally wrongful acts (IWAs). New Delhi is not a fan of the concept, given the possibility that powerful states may end up abusing the use of otherwise wrongful reprisals; when the 2001 Articles on State Responsibility,drafted by the International Legal Commission, were discussed in the U.N. Sixth Committee, India recommended that the chapter on countermeasures be deleted altogether. But at the cyber GGE, it was willing to endorse the use of force below the threshold of Article 2(4) of the U.N. Charter. India is currently the chair of the GGE that the Convention on Certain Conventional Weapons convened to determine the status of “Lethal Autonomous Weapons” in international law. At its first meeting last month, that group endorsed the applicability of international humanitarian law to such weapons. As these examples demonstrate, India is invested in the stability of international regimes.

India may well reevaluate these positions as its strategic environment changes. But for now, it retains an abiding interest in international regimes that were set up after World War II, believing their stability is crucial to India’s rise as a regional power. And while Judge Bhandari will take his seat at the ICJ in an independent capacity, the fact that he emerges from a juridical tradition that values international law should not be ignored. New Delhi is an important player, both in the governance of common spaces in Asia and in future regimes to manage new technologies. But more pertinently, it has emerged as a rival that can counter China’s revanchist manoeuvres. Earlier this year, when the People’s Liberation Army sought to claim parts of a territory around a “tri-junction” of the India-China-Bhutan border, New Delhi successfully held China to its legal commitment that any boundary settlements had to be made through prior consultations. Analysts have argued that other Asian powers should follow India’s lead in handling boundary disputes with China. Beijing’s handling of such disputes is a stress-test for the durability of international regimes: how its actions are buffeted will be closely observed by smaller powers and other emerging economies. The U.N.’s endorsing India’s nominee to the ICJ is, for this reason, significant—it is also a welcome signal from many states that they do not believe existing regimes are nearing their expiry date.