The recent election of India’s candidate, Bimal Patel, to the United Nation’s International Law Commission (ILC) is noteworthy because this is the first time that India has nominated a professor of international law to the ILC, a body responsible for the codification and progressive development of international law . Mr. Patel’s predecessor, Aniruddha Rajput, was a practitioner. Before Mr. Rajput’s election, for several decades India routinely nominated retired officials from the Legal and Treaties Division (L&T) of the Ministry of External Affairs (MEA), ignoring the talent that existed in international law in academia. According to Syed Akbaruddin, India’s former permanent representative to the UN, the L&T Division treated the ILC membership “as its preserve”. Before Mr. Patel, the only instance of an Indian academic elected to the ILC was that of Radhabinod Pal in 1958, an iconic judge.
The trend in India
India’s habit of nominating retired government officials to international forums is not restricted to the ILC; it is evident in other international judicial bodies too. For instance, besides the former Supreme Court judge, Dalveer Bhandari , who is currently on the bench of the International Court of Justice, three other Indians have been appointed to the world court — Nagendra Singh, B.N. Rau, and R.S. Pathak. Singh and Rau were members of the Indian Civil Services in British India. Pathak, the 18th Chief Justice of India, was an unfamiliar name in the world of international law. Mr. Bhandari is an honourable judge, but his scholarly contributions to the field of international law, before joining the ICJ, are largely unknown.
Two Indians who have served on the Appellate Body, the highest judicial organ of the World Trade Organization — Ujal Singh Bhatia and A.V. Ganesan — were generalist bureaucrats. Likewise, the two Indians who have been appointed to the International Tribunal for the Law of the Sea — P.C. Rao and Neeru Chadha — served in the L&T Division. The point here is not the competence of the candidates mentioned, but how international law proficiency outside the government and judiciary has been ignored. India has produced outstanding international law professors like B.S. Chimni, R.P. Anand, and V.S. Mani. Their body of scholarly work in international law is read, cited and critiqued all over the world. Yet, none of them made it to any of these international law institutions.
This is unlike the practice in other liberal democracies where leading academicians of international law are routinely nominated to these bodies. For instance, Australian nominee, Hilary Charlesworth, recently elected to the ICJ, is a professor of international law and is globally known for her path-breaking work on feminist approaches to international law. She replaces the late J.R. Crawford, another illustrious Australian professor of international law. Georg Nolte, from Germany, who now serves on the ICJ and was previously a member of the ILC, is a globally renowned international law professor. Likewise, the U.K. has routinely nominated accomplished international law academicians such as Hersch Lauterpacht, Ian Brownlie, and Dapo Akande to these bodies.
No transparency in nominations
Moreover, no one knows how the Indian government selects candidates for nominations to these international law bodies. The lack of transparency in the selection process gives rise to speculations of favouritism and nepotism. For instance, when Mr. Rajput, a young practitioner, was nominated to the ILC, it was alleged that India backed his candidacy due to his ideological proximity to the ruling establishment. Such accusations not only undermine the candidate’s legitimacy but also generate misgivings about the fairness of the system.
There is an urgent need to establish a transparent mechanism in making these nominations, such as setting up an independent search-cum-selection committee to recommend meritorious candidates. The committee should invite applications from qualified candidates, screen them based on their noticeable expertise and professional reputation in international law, and then make recommendations publicly. Capability in domestic law should not be mistaken as expertise in international law. The MEA could anchor this process. Since India devotes considerable diplomatic energy in getting its candidate elected to these bodies, it is in its national interest to nominate the brightest available talent in international law, rather than letting these bodies be used as post-retirement parking slots for bureaucrats and judges. The appointment of Mr. Patel to the ILC heralds a new era in which the government does not overlook expertise in international law outside the corridors of power.
Prabhash Ranjan is a Professor and Vice Dean, Jindal Global Law School, OP Jindal Global University. Views are personal
