Tuesday, 23 May 2017 New York

Foreign policy decisions don’t always come wrapped as neat options prepared on the basis of projections made after substantial research and careful consideration. Many times, they entail choices between sub-optimal options that make decision-making difficult. As decisions on inter-state matters relate primarily to an external environment, even the most decisive of decision-makers tend to be cautious.

With authority and influence beyond national borders being diffused, the limits of power, when combined with the complexity of domestic inputs and dynamics, can often make for a tortuous decision-making process.

With national prestige being involved, risk aversion is the default option. However, a swift “no” in a well-oiled decision-making process can often be incorrectly characterised, especially in hindsight, as lacking adequate application of mind. Hence, “careful consideration”, bureaucratese for putting the matter on the back burner, is not an uncommon recourse.

If it reinforces the initial “nay”, then all ends well. However, if the process meanders and then, for any reason, results in a reversal of the conventional wisdom of a “no” with a “risk worth taking yes”, then the real challenge begins.

For me, this challenge begins today. Like Indian diplomats globally, we, in New York, too are following the developments in the [Kulbhushan Sudhir] 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.

Friday, 26 May 2017 New Delhi

As I land in Delhi around 4 pm and switch on my smartphone, I notice a message from Apoorva Srivastava, the foreign service officer and point person in the external affairs minister’s office. I am informed that the minister wants to meet me at 8 p.m. at her residence along with Foreign Secretary Dr Jaishankar. It is a Friday evening but Sushma Swaraj is never one to delay matters or stand on protocol. Once she decides, she prefers moving swiftly on official business.

When I get to the minister’s residence at 8 Safdarjung Lane, in the heart of Lutyens’ Delhi, her staff tells me that the foreign secretary is delayed a bit and will join soon but the minister is ready to meet me. The frugally furnished meeting room at the minister’s residence holds memories of many meetings and decisions that I was part of as the Official Spokesperson of the Ministry of External Affairs.

As usual, Swaraj is well prepared. She informs me about the background to the decision. “Everyone is aware of your view that given an even playing field, we can win; but now the dice is loaded against us,” she acknowledges. “However, circumstances have changed. Consequently, plans have to change too,” she adds disarmingly.

“I was with you when we discussed the ICJ in the past. Now you need to be with me,” she frames her response with remarkable candour and goes on to explain the changed situation resulting in the change of plans, the importance of the ICJ to our current way of thinking and the necessity of contesting the election in November.

Of her own accord, she mentions, “Serious consideration was given to the choice of the candidate. There were other names in the mix, including some who are still serving on the Supreme Court. On balance, it was felt that the situation is too fragile to rock the boat now. Therefore, Judge Bhandari will be our nominee.”

Since the ICJ nominee is formally to be put forth by the National Group of India, they have had informal consultations and are scheduled to meet in early June to confirm the understanding that they evolved during consultations. The circuitous nomination process through the National Group – which, in India, now consists of Justice HL Dattu (former Chief Justice of India and Chairperson of the National Human Rights Commission), Justice GT Nanavati (former judge of the Supreme Court of India), Attorney General Mukul Rohatgi and senior advocate Harish Salve – is a mechanism that was adopted by the ICJ from its predecessor, the PCIJ.

It provides for a broader basis than only the executive in the selection of the nominee. So, technically, the candidate is a nominee of the National Group, rather than of the government.

Whatever may be the rationale for our decision, the ICJ is an independent judicial body; hence we agree to keep our case limited to the judicial issues: the abiding faith that we have in international law, the strong common law tradition in India, the merits of the Indian candidate and his contributions during his current tenure on the court, which is less than a normal nine-year term.

During the course of the conversation, Foreign Secretary Dr Jaishankar joins in and adroitly steers the discussion to focus on the specific needs that require addressing and concrete plans that have to be implemented over the next few months.

Given the large number of countries and our diplomatic outreach, we will be fully stretched over the next few months trying to catch up. We have a diplomatic presence in 117 countries. This leaves seventy-five where we have no resident missions. As every vote counts, apart from New York, we will need to reach out in the capitals of every country. This is a task which requires coordination from our headquarters. Despite the difficulties, we feel that it is feasible to get an absolute majority in the General Assembly.

To strengthen coordination at the headquarters, an officer is deputed with the responsibility of working full-time on the election in addition to the UN divisions, which usually handle such matters. Vinod Jacob, the director handling Pakistan, is chosen as the point person. He has previously served in New York and understands the situation at both the New York and Delhi ends. The mission in New York is being strengthened with the temporary deployment of Paulomi Tripathi, who will be leaving behind her key personnel responsibilities in the ministry and two young children in Delhi to rush to New York. We have a good track record of winning elections.

This is primarily on account of our choosing carefully, planning well and campaigning long and hard. On this occasion, our conventional approach cannot be followed in full measure. We need to, therefore, pull out all the stops to gain support – not only in New York but in all key capitals, especially those of Security Council members.

Dr Jaishankar agrees that every one of the Council members will be approached individually at the highest possible level, including during summits such as the forthcoming Shanghai Cooperation Organization (SCO) Summit in Astana, where India is due to join as a full member in June 2017.3 Additionally, designated special envoys will visit all members of the Council to pursue their support.

Our weakness in starting late will make it difficult to woo the members of the Security Council adequately. With just fifteen members, our prospect of gathering an absolute majority of eight is daunting.

Adding to this is the fact that two of the permanent members have candidates who will benefit from the unwritten understanding that all of the so-called P-5 will vote for each other in any ICJ election, thereby starting with the assurance that they already have five of the eight votes needed for an absolute majority. This has ensured that the P-5 nominees are always elected to the ICJ. Also, although the rules do not provide for a regional distribution of seats, given the distribution of seats on the Council, it is assumed that Council members elected from a region will normally vote for candidates from that region.

Asia alone has two candidates, and the Indian candidate begins with the disadvantage of starting more than a year after the other. All this requires high-level attention, since the stakes are very high. Even with all these plans, our collective conclusion is that “the Council may be our Achilles heel”.

Tuesday, 30 May 2017, Mid-air, en route to New York from New Delhi

Dr Jaishankar summoned all the key personnel of the ministry handling multilateral issues – including Ruchi Ghanashyam, who has been our High Commissioner in South Africa in the past and has recently taken over as Secretary (West) with responsibility for the UN – to his residence on the morning of Sunday, 28 May. He briefed us about the decision to contest the ICJ election and the importance of starting our campaign as soon as the National Group decides upon the nomination.

Upon my request, he agreed that we will formally file the nomination in New York only after the election to the ITLOS, which is scheduled for mid-June. This will ensure that our campaign for the ITLOS in New York is not adversely affected. However, it was agreed that we can begin to discretely campaign in various capitals, across the globe, a week before we file our formal nomination.

The next day, I made the usual rounds to meet ministers and other senior officials in Delhi on various issues. The ICJ election came up in some discussions. A senior official mischievously questioned me, “What is your exit strategy from this disaster?”

“None,” was my candid confession. It is a fight that I would not have picked. However, now that we are in it, there is only one way out for me – a successful outcome.

A little later, a minister holding an important portfolio, whom I met on another matter, reprimanded me for putting the “nation’s prestige at stake in such a risky venture for the sake of the glory of the Ministry of External Affairs”. It is a no-win situation. Damned if you don’t, damned if you do.

Such exchanges are par for the course when difficult situations are to be faced. There are those who put their heart and soul into a fight. And then there are those who try to pin the blame on others or make a safe exit even before the fight has begun. As a foot soldier used to fighting in the trenches, it is important for me to shut these thoughts out and get ready for the forthcoming fight.

India vs UK: The Story of an Unprecedented Diplomatic Win

Excerpted with permission from India vs UK: The Story of an Unprecedented Diplomatic Win, Syed Akbaruddin, HarperCollins India.