After weeks of groundwork from India’s Permanent Mission to the United Nations in New York, on November 12, 2021, India’s nominee to the International Law Commission Bimal N. Patel was successfully elected at the 76th session of the UN General Assembly (UNGA).
He was among eleven nominees eligible for the eight seats allocated to the Asia-Pacific region and was elected to the body with the highest vote count. Patel will become part of the Commission’s membership for a total of five years starting in 2023 since the term of its current members was extended in light of the exceptional circumstances of the pandemic.
Patel’s election makes him the 8th Indian national to be part of the Commission, which consists of 34 experts having “recognised competence” in international law. After the election, India’s Permanent Mission rightly celebrated this feat in a tweet, noting that “our contribution to the #ILC will reflect the commitment to uphold rules-based international order, underpinned by #RuleOfLaw”.
While there is little to controvert in the statement, it does not truly reflect the nature of work undertaken by the Commission and how states contribute to it.
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Understanding the Commission and its procedures
As set out in the Commission’s 1947 statute, it works on the “progressive development” and “codification” of international law. Progressive development refers to 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 been sufficiently developed in state practice.
In contrast, codification involves the formulation of rules of international law in fields where there has already been extensive state practice, precedent and doctrine. In the Commission’s practice, however, there is little to differentiate between these exercises and it has often proceeded with a “composite” understanding of the two when undertaking work on various topics of international law.
In undertaking this work, the Commission works in tandem with the UNGA’s Sixth Committee, the primary body for consideration of international law and other legal affairs. The Commission prepares annual reports on its work and presents them at the Sixth Committee, in clusters, during the ‘International Law Week’ to hear the views of states.
This relationship is paramount since the Commission develops and codifies International Law only for it to be accepted by states. In this way, the Sixth Committee decides the fate of the Commission’s work. At any given point in time, each topic on the Commission’s work programme is at a different stage of study and benefits from the views shared by states in the Sixth Committee discussions. In these discussions at least, India has been an enthusiastic commentator on the Commission’s work and contributes regularly by providing its views on all topics.
Bimal Patel being congratulated by foreign secretary Harsh Vardhan Shringla. Photo: Twitter/MEA India.
However, this is not the only manner in which states are called upon to contribute to the work of the Commission. As stated above, in undertaking the codification of international law, the Commission surveys the field for “extensive state practice, precedent and doctrine”. This task is complicated since it requires an understanding of diverse legal systems and cultures.
While the statutorily-mandated diversity of the Commission’s membership ensures that this problem does not impede its work, the Commission nevertheless invites states and their governments to share their views, reply to questionnaires, submit information on legislations, judicial and executive practices including manuals, guidelines, protocols and decisions of national courts and authorities and so on, to guide the Commission’s work at this early stage. In fact, Part III of every annual report of the Commission invites states to submit these specific bits of information on each of the topics under consideration.
Now, considering the method and sequence in which studies on different topics of international law are taken up by the Commission, it makes sense for states to submit extensive information about their practices at this early stage rather than end up with unfavourable final outcomes, which do not fully reflect their actual practices. That logic, sadly, is far from reality.
Replies to these questionnaires and invitations sparse and, more often than not, provided by developed countries with robust legal affairs departments capable of handling these onerous requests. The skewed nature of this practice and representation means that the inputs which assist the Commission’s in its early stages of work reflect the views of only a handful of (mostly) Western countries.
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Where is India in the Commission’s work?
For Indian scholars of International Law, the cause for concern must lie elsewhere. India has not provided information on any of the six topics on the Commission’s current work programme. Some of these topics, like the ‘Immunity of state officials from foreign criminal jurisdiction’ and ‘Succession of states in respect of state responsibility’ are of great relevance to states and their officials. Others, like the ‘Protection of the environment in relation to armed conflict’, ‘Protection of the atmosphere’, and ‘Sea-level rise in relation to international law’, are of great import for the international community at large.
In this context, India’s laws, judicial decisions, executive procedures and military practices can offer useful insights for the Commission’s work. For example, over time, the India Parliament and courts have developed valuable laws and practices on the protection of the atmosphere. Ensuring that information on these laws and practices is transmitted to the Commission would, in turn, ensure that India’s legal system is adequately reflected in the Commission’s work.
In contrast, topics like the ‘Immunity of state officials from foreign criminal jurisdiction’ strictly involve questions of national laws and practices, factual information on which was sought by the Commission in 2017. While it is true that India has shared its comments on these topics in the Sixth Committee, it never provided any written responses to the Commission despite the relevance of India’s laws and practices.
The Commission seeks factual information and answers to questionnaires from state because of a specific logic. As comments in the Sixth Committee are delivered orally and within a limited time period, the Commission invites states to submit information through written notes or by answers to questionnaires, depending on the requirements of the topic being studied. India’s contribution to the Commission’s work through this process is, like most developing countries, non-existent.
In fact, a quick sift through every topic which the Commission has addressed in the 70 years of its existence shows that India has never provided any written views, answers to questionnaires or factual information on its state practice, except for two notes verbales transmitted in March, 1953 and February, 1956.
This fact presents a reality check for a country which has managed to have 8 of its nationals elected to the Commission. It is a solemn reminder that the election of an Indian national to the Commission does not mean that India, as a state, is an active contributor to the progressive development and codification of international law.
The risk in keeping this status quo is, as François Alabrune notes, that the Commission will be inspired only by a single vision and a single legal system. This begs me to ask: what kind of influence do states, including India, wish to maintain by electing their nationals to a Commission of independent experts whose work they do not actively contribute to? Surely, the onus of participating in the development of international law cannot merely be a game of diplomatic wins and losses.
In essence, the process of development and codification of international law requires that the Commission and the states maintain a useful dialogue on the work of the former. India, sadly, has not been active in this cause outside of the Sixth Committee. On the off chance that these (in)sensibilities change in the near future, the next task might require building and integrating international law expertise into the Government’s work. Needless to say, any effort to do that has to begin by increasing the level of transparency in how India engages in International Law.
For now, since India’s engagement is permeated by a culture of opaqueness, the first to suffer its consequences are always those of us who study international law at undergraduate and post-graduate levels in India. If scholars are able to overcome this barrier, the lack of adequate incentivisation and improper integration into the already understaffed Legal & Treaties Division of the Ministry of External Affairs means that, on the whole, Indian scholars of international law are bereft of support from their only friend in the field: the Indian state.
Shantanu Singh is a lawyer working at the Centre for WTO Studies, New Delhi and has been a Research Assistant to Charles Jalloh and Aniruddha Rajput, members of the UN’s International Law Commission.
Singh is grateful to Shubhangi Agarwalla for comments on a previous draft.