New Delhi: For the first time in four decades, India has by-passed the Ministry of External Affairs’ in-house legal talent to nominate a private law practitioner for election to the International Law Commission.

Aniruddha Rajput, a 33-year-old lawyer with links to the Rashtriya Swayamsevak Sangh, was formally introduced as India’s candidate to the International Law Commission by the Permanent Mission of India to the UN in May. He is probably the youngest ever nominee to the world legal body that codifies public international law – and, say lawyers familiar with his record, also the most inexperienced.

How Aniruddha Rajput – who was still a Ph.D. student when nominated – came to be selected is a closely held secret with the Ministry of External Affairs unwilling to answer questions on the record about why it made its choice.

The Geneva-based commission usually has senior academicians and legal officers from foreign ministries around the world as its members. As per the ILC’s statute adopted by the UN General Assembly, the commission comprises 34 members “who shall be persons of recognised competence in international law”.

The ILC is a crucial norm-setting body and a cross section of international lawyers The Wire spoke to said it was essential that India be represented on the ILC – and that its nominee have the heft to weigh in on the commission’s deliberations.

The ILC’s current members include a former foreign minister, a judge, three former attorney generals, eight former ambassadors who have experienced multiple postings, two former presidents of the United Nations Security Council, and over a dozen law professors and heads of legal departments in foreign ministries, all of whom have weighty legal tomes under their belt or years of practical experience dealing with public international law issues.

For example, Amos S. Wako had been Kenya’s attorney general for 20 years, before he was nominated and elected in 2011. Switzerland’s Lucius Caflisch and Germany’s George Nolte are world-renowned international law academics and Ernest Petric sat as a judge in the Constitutional Court of Slovenia.

India and the ILC

Starting with S.P. Jagota in 1977, India had always nominated the chief legal advisor from the MEA’s legal and treaties (L&T) division for the post. Jagota was followed by P.S. Rao who remained at the ILC as India’s nominee for 20 years. Rao was also India’s nominee to the India-Bangladesh Maritime Tribunal which gave its verdict in 2014.

Narinder Singh, a former MEA additional secretary in the L&T division was similarly nominated twice. He is also the current chairman of the ILC.

Before 1977, India had nominated three illustrious jurists – Sir Benegal N. Rau, India’s permanent representative to the UN and a key drafter of the Indian constitution, Radhabinod Pal and Nagendra Singh.

Pal, who also served for two terms, remains revered in Japan for his dissent against the judgment of the international military tribunal on Japanese war crimes. Singh, a member of the ILC from 1967 to 1972, went to become the first Indian to be president of the International Court of Justice from 1985 to 1988.

All told, India has been at the ILC continuously since independence, except for a short period between 1972 and 1977.

It was expected that for the 2016 election, New Delhi’s choice would again be a familiar face from within the government or a senior international lawyer from academia. Its eventual nominee, therefore, came as a bit of a surprise not just to the L&T division but to officials up and down the MEA food chain, one of whom told The Wire Rajput’s name was sent to the ministry by the Prime Minister’s Office.

For the government to look beyond the MEA’s own legal pool was, however, not totally unexpected. The legal and treaties division has been in a moribund state, unable to find qualified candidates to fill most of its posts. There are currently only 12 full-time legal officers in the MEA.

Formidable opponents

While the Modi government may have gone in for ‘fresh blood’ from outside, Rajput, who received his PhD only a few months ago, will have to contend with an exceptionally strong field of legal scholars and foreign office lawyers with years of practice in public international law.

For the 2017-2021 term, Asia has been allotted seven seats. After the 1 June deadline, there are 10 declared candidates in the fray for those seven seats. Out of them, six are sitting members – from Jordan, China, Japan, the Republic of Korea, Qatar and Indonesia, and are thus expected to be re-elected.

Iran’s nominee is Momtaz Djamchid, who had been a previous member of the ILC from 2002-2006. More importantly, he was also legal advisor to the Iranian delegation which negotiated the Joint Comprehensive Plan of Action – the nuclear deal that Iran signed with the P5+1.

Malaysia and Vietnam, who have never been members of the commission, have also announced their candidates. The Malaysian nominee is Prof Rahmat Mohamad, who was secretary general of the Delhi-based Asian-African Legal Consultative Organisation at the time of submission of his candidature. From Vietnam, Nguyen Hong Thao is a veteran diplomat of 40 years standing, former envoy to Malaysia and Kuwait and someone who led delegations that negotiated border treaties with neighbours.

The Indian candidate’s name figured in the list of current Ph.D students at the National University of Singapore’s Faculty of Law as recently as August, i.e. after he had already been nominated, though he submitted his thesis on ‘Regulatory Freedom and Investment Treaty Arbitration’ earlier this year.

As per his CV, available on the university’s website, Rajput’s work experience consists of six years as a Supreme Court advocate from 2006 to 2012. During this period, he was also a visiting professor for International Commercial Arbitration and International Trade Law at the Indian Law Institute for two years. His LLB was from ILS Law College, Pune and his Masters from the London School of Economics.

Under “representative publications”, Rajput has listed four articles – three related to arbitration and the last one about alternate dispute resolution in sports. None of these fall under public international law. In his statement on qualifications submitted to the UN, the list has been augmented with book reviews and forthcoming publications but shows only six articles or book chapters.

“If the government was keen to accommodate him, they should have at least gone by his stated specialisation and used him in the WTO or UNCITRAL [the UN body dealing with international trade law]. Why ILC?” a professor of international law told The Wire on condition of anonymity.

In keeping with its statute – “The commission shall concern itself primarily with public international law, but is not precluded from entering the field of private international law” – the ILC has been dealing mainly with public international law. This is reflected in its program of work for 2016, which ranges from immunity of state officials from foreign criminal jurisdiction, customary international law and protection of the environment in relation to armed conflict.

The Vienna Convention on the Law of Treaties is considered as ILC’s most universally accepted codification and a successful example of its mandate to systemise international law.

Law and beyond

This is not the first time that Rajput has come to public attention. In July 2015, media reports described him as the counsel for the petitioner of the Jammu and Kashmir Study Centre, an RSS-related think-tank, which had challenged Article 35A giving special status to J&K permanent residents – seen by the Sangh parivar as the plank on which the state’s special status under Article 370 ultimately rests.

Indeed, an archived snapshot of August 1, 2015 from the webpage describes Rajput as a director of the JKSC.

He is also on the governing council of a new public policy think-tank, Global Village Foundation (GVF), which has a strong Haryana focus. The chairman of the foundation is Balram Nandwani, who is independent director at the state-run Uttar Haryana Bijli Vitran Nigam Limited, that retails power to the northern part of Haryana..

In May, Haryana appointed Rajput as a member of its fifth state finance commission. The chair of the finance commission is economist Mukul Asher, who, incidentally, is also GVF’s director, public policy.

Rajput’s age – just 33 – also marks him out as an extraordinary choice. In 2011, France’s candidate Mathias Forteau was only 37. Forteau, who got elected, did his doctorate in law in 2002, and works as a professor of law at the University of Paris Ouest, Nanterre-La Defense. Besides, he had appeared as counsel for numerous states like Burkina Faso, Myanmar, Guinea, Benin and Indonesia at the International Court of Justice.

When The Wire contacted Rajput to discuss his qualifications and selection as India’s nominee for the ILC, he was unavailable for comments.

What the MEA says

The Wire also sent the MEA spokesperson and foreign secretary S. Jaishankar a set of questions, including:

What was the selection process for choosing India’s candidate for ILC?

Is there any criteria being followed to look at minimum qualifications/experience? If yes, Can we assume that Rajput met those standards?

What in your view are Rajput’s credentials in the field of public international law?

Since ILC members from other countries are almost invariably professors of public international law with many publications to their credit, or former ambassadors, judges or officials with long years of practical experience in the field of public international law, is it not likely that Rajput, with a recently submitted doctorate, will be considered by others on the ILC as under-qualified?

Since the MEA did not advertise or invite applications, and Rajput is still relatively unknown in public international law, how did you settle upon his candidature?

Why did the MEA not consider other names for nomination?

What are India’s expectations from the International Law Commission?

While the questions have gone unanswered, the only thing that South Block sources were willing to say on his nomination was that Rajput was “selected as India’s candidate for ILC based on his experience in the field of international law. The selection process does not involve placement of an advertisement by the MEA.”

The nominations had to be sent in by June 1, 2016, with the election scheduled for November 2016. After tallying the votes in the UN General Assembly, candidates with the highest number of votes and ‘not less than a majority of the votes of the members present and voting’, shall be elected.

In 2006, India received the second highest number of votes, 141, among Asian candidates. The tally fell to 134 votes, 5th place, in 2011. Indian officials are confident Rajput will get through the vote because of the support India traditionally receives in the UNGA.

Speaking to The Wire, Narinder Singh, whose tenure in the ILC ends this year, said that he was surprised to see Rajput as India’s candidate.

“I am surprised at his nomination. In academic circles, he is not known as an international law expert,” said Singh, whose own name had been in the running to be re-nominated as the Indian candidate to ILC for a third term.

Similarly, a former MEA chief legal advisor, M. Gandhi said that he was surprised to hear about Rajput’s nomination. “I have not heard of him,” he said bluntly.

This is not the first time, however, that India has made an unconventional nomination to a top international legal body.

In 2012, the Manmohan Singh government nominated Dalveer Bhandari, who was then a judge on the Supreme Court, to the International Court of Justice – a move which raised eyebrows as he didn’t have much of a background in international law.