The International Law Commission (ILC) was set up under the UN Charter as a reflection of a long-standing historical commitment, dating back to international peace conferences in the late 19thcentury, towards creating an independent body of the most highly qualified experts, drawn from around the world, who would be tasked with the‘progressive development of international law and its codification’.
In realising this mandate over the decades, it has produced some of the most seminal texts that have come to define modern international law – most memorably, on the law of treaties, on state responsibility, in international trade, humanitarian law, international criminal law, law of the sea and environmental law.
This is what makes the ILC the most important workshop of modern international law. Its work has led to the creation of a number of important treaties and other works, including the Vienna Convention on the Law of Treaties and the Draft Articles on the Responsibility of States for Internationally Wrongful Acts.
But who are the people in this workshop laboratory? Like many other treaty bodies (such as the Human Rights Committee set up to monitor implementation of the International Covenant on Civil and Political Rights by its states parties) the ILC too, since its creation in 1947, was specifically designated as an independent group of experts.
Pursuant to Article 3 of the ILC Statute : “members of the Commission shall be elected by the General Assembly from a list of candidates nominated by the Governments of States Members of the United Nations. Each state can nominate up to four candidates, of whom only two can be nationals of the nominating state”.
The Secretary-General communicates the names and the curricula vitae of the candidates to Governments of States Members. The Secretary-General also submits a list of all of the nominees to the General Assembly for the purposes of the election.
Article 8 of the Statute provides that the electors shall bear in mind that the persons to be elected to the ILC should individually possess the qualifications required (recognized competence in international law as stated in Article 2) and that in the Commission representation of the “main forms of civilization” and of the “principal legal systems of the world” should be assured. The election is held by secret ballot. Those candidates, up to the maximum number prescribed for each regional group, receiving the greatest number of votes and not less than a majority of the votes of the Member States present and voting are declared elected.
States are free to devise their own policy for internal selection so long as they comply with these criteria. India has, in recent history, nominated the senior-most lawyer from the Legal & Treaties Division (L&T) of the Ministry of External Affairs (MEA). Generally, this is a lawyer who has wide experience in negotiating treaties on behalf of India, is a career diplomat and a recognised jurist.
The last incumbent, Narinder Singh, was Head of the L&T Division and Legal Adviser to the Government of India for a number of years before his nomination, and held the position for two consecutive terms during which he made important contributions to the work of the Commission.
Other nominees include Radha Binod Pal, the former Indian Judge at the International Military Tribunal Tokyo, Justice Nagendra Singh (who went on to an illustrious career as Judge at the ICJ),Pemmaraju Sreeenivasa Rao (currently Special Advisor to the Attorney General’s Office, Qatar) and Sir Benegal N. Rau (former Judge of the Permanent Court of International Justice).
Each of these incumbents have been stalwarts and remarkable legal professionals, at the top of their cohort, in their time. It is unsurprising therefore, that the trajectory of ILC membership has often led to election as Judge of the International Court of Justice in The Hague.
It is equally noteworthy that India has always had a seat on the Commission, despite it being only one of seven seats available to the geographical group designated as Asian states. Not only is this a testament to India’s regional importance in Asia, but the fact that of the six people who have ever been Indian members of the Commission, four were re-elected to consecutive terms of ten years or longer speaks to the important contributions these individuals made to the work of the Commission during their tenure.
However, India’s current nominee to the Commission, Aniruddha Rajput, appears to be a notable departure from the established rule. There is precious little information about him in the public sphere and certainly nothing that can justify placing him in the rarified tier of excellence that has come to define eligibility to membership of the ILC.
While this in itself is an extremely worrying instance of political appointments and the legitimacy crisis behind them, it is even more sobering to consider that in making this nomination, the government has bypassed without murmur, several genuinely distinguished potential candidates, including at least one leading academic and scholar of our times (who is one of only a handful, internationally, to have been recognized by the elite Institut de Droit International and the only Indian to have been recognized by theInstitut in recent years).
What does this mean for India in the larger context of its position in international law?
Firstly, it gravely undermines the standing that India has in the international community. Like many other elections at international bodies, ILC election campaigns have effects on elections to other treaty bodies such as ECOSOC, the Human Rights Council, the IMF and the World Bank. These seats are of immense strategic and bargaining importance to a state like India that is seen to be on an ascent, politically. It is easy to see how a legitimacy deficit in the ILC elections could swing opinion against India in other international fora.
Secondly, and on a domestic note, this nomination marks a departure from the practice of selecting ex officio the senior-most lawyer from the L&T Division of the MEA. This, taken at face value, may be a positive development, but only if it opened up a level playing field for all candidates who are Indian and fulfil the selection criteria laid down by the ILC.
This appears not to be the present case.
Thirdly, in making a nomination that seems to completely ignore the clearly codified selection criteria, India, as a member State, has fallen short of its treaty obligations under both the Charter of the United Nations, 1945 (which under Art. 13 (1) creates the ILC) and the Statute of the ILC, 1947 (which under Art. 2 (1) lists the ‘recognised competence’ criteria for membership).
Fourthly, and at the very heart of scrutinising this nomination, this is an unconstitutional political appointment. On a bare viewing, the Indian government has committed a prima facie act of overriding merit by abusing due process. Consequently, the government has once again lowered the bar for corrupt malpractices at the highest level and compromised the rule of law that it is constitutionally bound to preserve.
Finally, this nomination, were it to translate into an appointment (which, given India’s unbroken record of holding a seat at the ILC, is the most likely outcome after the expected November 3 elections) would be a travesty of the values of independence and excellence that the Commission stands for. By accepting this nomination, it will be seen to be lowering the standards it has set for itself, and would irrevocably compromise the premise of meritocracy that distinguishes membership of the ILC.