“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.

Nominated Candidate Previous and present designations Significant academic contribution International law standing/Experience at International forums Aniruddha Rajput (India) Advocate, Supreme Court of India; Member of Expert Group appointed by Law Commission of India Authored 5 articles in national and international journals and 1 book chapter. Member of Drafting Committee of LCIA-India. Sean D. Murphy (U.S.A.) Professor at George Washington Law School; Member and Special Rapporteur of ILC; Legal Counsellor (US Embassy, The Hague); Attorney Office of the Legal Advisor US Dept. Of State, etc. More than 6 books published by leading publicists, authored more than 35 articles in reputed, peer reviewed international journals, contributed significantly to UN Audio Visual Library, more than 75 distinguished conference lectures/commentary etc. Represented different countries like USA, Ecuador, Kosovo, Ethiopia, etc. in more than 20 cases before international law courts and tribunals. Michael Wood (United Kingdom) Senior fellow (Lauterpacht Centre for International Law); Special Rapporteur and Member of ILC; Chairman of CAHDI; Chairman of 29th Antarctic Treaty Consultative Meeting, etc. More than 20 international publications including various entries in the Max Planck Encyclopaedia of Public International Law and contributions to UN Audio Visual Library, etc. Served as Agent/Counsel before the International Court of Justice for countries like UK, Ukraine, Kosovo, Peru, Belgium, etc in 8 cases; represented as agent/counsel before ITLOS, ECtHR and other international tribunals in more than 10 cases Huang Huikang (China) Professor of International Law; Ambassador Extraordinary and Plenipotentiary of Peoples Republic of China; Member of ILC; Member Int’l Institute of Space Law, etc. Authored and edited 13 books, 34 publications in international law journals, etc. Head of Chinese delegation to Seoul, the Hague, New York, Vienna, COPs, Uruguay, Washington, etc.; invited expert at UNEP; Head of AALCO for 3rd and 4th sessions; panellist and expert UN Colloquium on progressive development and codification of International Law, etc. Chester W. Brown (Australia) Professor of International Law and Associate Dean at University of Sydney; Asst. Legal Advisor at British Foreign and Commonwealth Office; Overseas Associate at Essex Court Chambers, London and Maxwell Chambers, Singapore, etc. Authored and edited 4 books and contributed more than 55 articles in esteemed international law journals, etc. Counsel for the governments of Australia, New Zealand, Iran, Hungary, India, etc at different international courts and tribunals; advised and assisted in more than 18 international proceedings, etc. Mathias Forteau (France) Professor of Law at University of Paris; Member of Int’l Law Association, European Society of International Law, ILC, etc. Authored/edited more than 6 books and 69 articles in international journals, etc. Counsel and advocate for Bolivia, Myanmar, Chad, France, Iran, Indonesia, etc at different international adjudicatory forums; legal consultant for the government of Korea, Gibraltar, Gambia, etc in different cases, etc. Dier D. Tladi (South Africa) Professor of International Law at University of Pretoria; Member and Special Rapporteur ILC; Principal State Law Advisor (Int’l Law); Legal advisor to the South African Permanent Mission to the United Nations; South African diplomat at many international forums including ICC, AU, etc. Authored 9 books/book chapters and contributed more than 45 articles in international law journals. Invited by the curatorium of the Academy of International Law at the prestigious Hague Academy; served as the Chairman of the drafting committee during the 65th session of the ILC; Part of legal advisory team in the mediation of the border dispute over Lake Malawi/Nyasa, etc. Gilberto Vergne Saboia (Brazil) Ambassador to Sweden, Netherlands, Hungary, Latvia, etc; Member of ILC; Deputy Permanent Representative of Brazil to the International Organisations in Geneva Several articles on aspects of the establishment of human rights standards in Brazil and in Latin America and on issues related to the fight against racism and other forms of discrimination and intolerance. Co-ordinated the Working Group of the Assembly of State Parties to the Rome Statute; Delegate to Legal Subcommittee of the Committee on Peaceful Uses of Outer Space; Chairman of the Drafting Committee of the World Conference of Human Rights in Vienna; President of UNHRC, etc.

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.