International Law: Sacrificing India’s Reputation at the Altar of Petty Political Gain

The impressive credentials of the other nominees is proof those countries understand the role international law plays in world affairs – even as India sees the ILC as just another parking slot for a person from the ‘parivar’.

“International Law,” Justice Sandra Day O’ Connor of the US Supreme Court famously observed, “is no longer an issue just for diplomats and trade lawyers”. In a globalised world, where people, commerce and ideas cross borders with ever-increasing frequency, it is indisputable that international norms and standards are needed for the smooth functioning of the system. The ubiquitous nature and all-permeating character of international law is evident in its widening ambit and vertical percolation.

The United Nations was founded not only to save succeeding generations from the scourge of war and to reaffirm faith in fundamental human rights, but also to “establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained.” Encouraging the development of international law as a way to regulate international relations has been a major objective of the United Nations since its very beginning. In 1948, the General Assembly established an expert body, the International Law Commission (ILC) “to promote the progressive development of international law and its codification.”

“Progressive development” can be understood as the preparation of draft conventions on subjects which have not yet been regulated by international law or in regard to which the law has not yet been sufficiently developed in the practice of states. “Codification”, on the other hand, is defined as “the more precise formulation and systematization of rules of international law in fields where there already has been extensive state practice, precedent and doctrine.” Since its creation, the ILC has worked extensively in the area of international law, meeting annually to review pertinent issues.

The members of the ILC get elected by the UN General Assembly from a list of candidates nominated by member states. The term of office of the 34 present members is going to expire in December 2016. The results of the elections for membership to the ILC for the 5-year-term beginning on January 1, 2017 were declared last week. India’s nominee was elected by an overwhelming and unprecedented majority with the Ministry of External Affairs going all out to ensure the young but politically well-connected candidate, Aniruddha Rajput, made the cut. Although the vote is the product of the diplomatic clout India wields at the UN and is thus a matter of celebration for some, the systemic improprieties involved in the selection of the country’s nominee raise disquieting questions about the Indian approach to international law and its associated institutions. Even as we wish Rajput well, India’s nomination needs to be judged on the touchstone of suitability as well as procedural transparency. Simply put, as a rising power, India should not have allowed nepotism and political patronage to influence the selection of talent for such a vital legal body.

The ILC statute says that members of the commission shall be persons of “recognised competence” in international law. Given the inherent subjectivity of the term ‘competence’ and its qualification by the term ‘recognised’, we need to  appreciate the question of eligibility versus suitability. Arguably, ‘competence’ in international law can be ascertained through parameters like a candidate’s academic contribution and standing in doctrinal and practical aspects of the subject. ‘Recognised’ is a relative assessment but suggests at a minimum that the fraternity of international law scholars and practitioners be familiar with a candidate’s writings and/or work. One way to present a clear picture is to peruse the credentials of India’s nominee alongside those of the nominees from leading countries like the United States, Britain, China, Australia and France – who take part international policy-making very seriously – as well as aspiring states like South Africa and Brazil.

The table below is neither an attempt to belittle or praise the individual accomplishments of an individual candidate nor an endeavour to gauge the absolute competence of any candidate. Rather, the focus is on the ‘relative suitability’ of the nominees. The data has been obtained from the official submissions made by the nominating countries to the UN.

One wonders what propelled India’s nomination despite the availability of a diverse, experienced and rich pool of international law scholarship in India – including those who are recognised by their peers abroad as scholars of distinction.

The unparalleled significance of the commission stems from the ‘normative consequences’ attached to its work. In the past, the ILC has worked extensively in various areas such as state responsibility, state immunity, state jurisdiction, state succession, international water courses, International spaces, individual criminal responsibility, diplomatic protection, nationality, etc. which has repercussions on states as well as individuals and non-state entities. Unlike the position under domestic legal system, the writings of jurists hold a distinguished position under international law. Article 38 of the statute of International Court of Justice lists the writings of highly qualified publicists as a subsidiary source of law. In his paper, Professor Michael Peil conducted a survey of ICJ judgments, orders and advisory opinions and made a raw compilation of the most commonly cited publicists. Amongst these, the ILC has been the most frequently cited, followed by former ILC members like Hersch Lauterpacht, Gerald Fitzmaurice, Ian Brownlie, Manley O. Hudson, Sir Humphrey Waldock, J.L. Brierly, etc.

In India, sadly, there has been no debate in government or outside on the priorities and criteria that should drive the country’s nominations bodies like the ILC and even the International Court of Justice. The obscure process of candidate selection and the complete opacity over the reasons, grounds, procedures and priorities deserves serious reconsideration. Although not much literature is available on the process of nomination in other legal systems, the profile of the nominees is self-evident and a testimony to the requirement of suitability. This also gets reflected in the official position of a country like, say, South Africa which said that “…for this reason the government is steadfast in its belief in nominating only the most qualified candidates for election to the ILC.” (emphasis added). The Indian government, on the other hand, expects everyone to be satisfied by the fact that a qualified candidate – and not necessarily the most qualified – has been selected. This is the difference between countries that understand the role the development of international law plays in world affairs and those who look at the ILC as just another parking slot for someone from the ‘parivar’.

Transparency and arbitrariness are sworn enemies. One furthers national interest and the rule of law while the other is subservient to parochial political interests. The interest of the ruling party/government need not coincide with the national interest. At a time when disagreement is called sedition, criticism betrayal, and irrationality trumps reason and common sense, it should hardly surprise us that the government will cite the vote at the UN as proof of its nominee’s excellent credentials for the job. The reality is that it the international reputation of India which carried the day – a reputation that the government is willing to compromise for petty political considerations.

Aditya Roy and Anmolam are founder-members of BDLAAAW- Buddies for Legal Aid and Awareness. BDLAAAW is an organisation registered under the Societies Registration Act, 1860.