After weeks of preparatory work from the Permanent Mission of India to the United Nations in New York, on November 12, 2021, Indian candidate for the International Law Commission Bimal N. Patel was successful elected at 76and session of the United Nations General Assembly (UNGA).
He was among eleven nominees eligible for the eight seats assigned to the Asia-Pacific region and was elected to the body with the most votes. Patel will be a member of the Commission for a total of five years beginning in 2023 since the terms of its current members have been widened given the exceptional circumstances of the pandemic.
Patel’s election makes him the 8and An Indian national will serve on the Commission, which consists of 34 experts with “recognized competence” in international law. After the election, the Permanent Mission of India rightly celebrated this achievement in a Tweeternoting that “our contribution to the #ILC will reflect the commitment to maintain a rules-based international order, underpinned by #RuleOfLaw”.
Professor Bimal Patel of 🇮🇳 is elected to the #I WILL SEE for a period of 5 years.
— India at the UN, NY (@IndiaUNNewYork) November 12, 2021
While there is little to argue about in the statement, it does not truly reflect the nature of the work undertaken by the Commission and how States contribute to it.
Understanding the Commission and its procedures
As stated in the Commission’s 1947 report law, he worked for the “progressive development” and “codification” of international law. Gradual development refers to the elaboration of draft conventions on subjects which are not yet regulated by international law or for which the law is not sufficiently developed in the practice of States.
On the other hand, the coding implied the formulation of rules of international law in areas where there is already extensive state practice, precedent and doctrine. In the practice of the Commission, however, there is little to differentiate between these exercises and it has often process with a ‘composite’ understanding of both when undertaking work on various topics of international law.
In undertaking this work, the Commission is working in tandem with the UNGA Sixth Committee, the leading review body for international law and other legal matters. The Commission is preparing Annual Report on its work and present it to the Sixth Committee, in groupsduring “International Law Week” to hear the views of States.
This relationship is essential since the Commission develops and codifies international law solely for its acceptance by States. Thus, the Sixth Committee decided the fate of the work of the Commission. At some point, every topic on the Commission’s case work program is at a different stage of study and benefits from the views shared by States during the Sixth Committee discussions. In these discussions at least, India has been an enthusiastic commentator on the work of the Commission and has contributed regularly by providing his views on all subjects.
However, this is not the only way in which States are called upon to contribute to the work of the Commission. As noted above, in undertaking the codification of international law, the Commission studies the field for “extensive State practice, jurisprudence and doctrine”. This task is complicated as it requires an understanding of various legal systems and cultures.
While the statutory mandated diversity of the Commission’s membership ensures that this issue does not impede its work, the Commission nevertheless invites states and their governments to share their views, respond to questionnaires, submit information on legislations, judicial and executive practices, including manuals, guidelines, protocols and decisions of national courts and authorities, etc., to guide the work of the Commission at this early stage. In reality, Part III of each annual report of the Commission invites the States to submit these specific pieces of information on each of the subjects examined.
Now, given the method and order in which studies on different subjects of international law are addressed by the Commission, it makes sense for States to submit detailed information on their practices at this early stage rather than end up with unfavorable end results, which do not fully reflect their actual practices. This logic, unfortunately, is far from reality.
Responses to these questionnaires and invitations are rare and most often provided by developed countries robust legal services capable of dealing with these onerous requests. The biased nature of this practice and portrayal means that the contributions that assist the Commission in its early stages of work reflect the views of only a handful of (mainly) Western countries.
Where is India in the work of the Commission?
For Indian scholars of international law, the cause for concern must lie elsewhere. India did not provide information on any of the six topics of the current work program of the Commission. Some of these topics, like the ‘Immunity of State agents from foreign criminal jurisdiction‘ and ‘State succession in matters of State responsibility‘ are of great importance to States and their officials. Others, like the ‘Protection of the environment in relation to armed conflicts‘, ‘Atmosphere protection‘, and ‘Sea level rise in relation to international law‘, are of great importance to the international community as a whole.
In this context, Indian laws, judicial decisions, executive procedures and military practices can provide useful guidance for the work of the Commission. For example, over time, the Indian Parliament and courts have developed valuable laws and practices on the protection of the atmosphere. Ensuring that information on such laws and practices is passed on to the Commission would, in turn, ensure that the Indian legal system is properly considered in the work of the Commission.
In contrast, topics such as “immunity of state officials from foreign criminal jurisdiction” strictly involve questions of national law and practice, factual information on which research by the Commission in 2017. While India provided comments on these matters to the Sixth Committee, it never provided written responses to the Commission despite the relevance of Indian laws and practices.
The Commission is requesting factual information and responses to State questionnaires due to a logic. As the comments of the Sixth Committee are presented orally and within a limited time, the Committee invites States to submit information through written notes or responses to questionnaires, depending on the requirements of the subject under consideration. India’s contribution to the work of the Commission through this process is, as more developing countries, non-existent.
In fact, a cursory review of all the topics the Commission has covered in its 70 years of existence shows that India has never provided written opinions, replies to questionnaires or factual information on its state practice, with the exception of two verbal notes transmitted in march 1953 and February 1956.
This fact presents a reality check for a country that managed to elect 8 of its nationals 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 actively contributing to the progressive development and codification of international law.
The risk of maintaining this status quo is, as François Alabrune Remarks, that the Commission will only be inspired by a single vision and a single legal system. This leads me to ask the following question: what type of influence do States, including India, wish to retain by electing their nationals to a Commission of independent experts whose work they do not actively contribute to? Certainly, the obligation to participate in the development of international law cannot simply be a game of diplomatic victories and losses.
In essence, the process of developing and codifying international law requires that the Commission and States maintain a meaningful dialogue on the work of the former. India, unfortunately, has not been active in this cause outside of the Sixth Committee. In case these (in)sensitivities change in the near future, the following task may require building and integrating the expertise of international law in the work of government. Needless to say, any effort to achieve this must begin with increasing the level of transparency in how India engages with international law.
For now, since India’s engagement is steeped in a culture of opacity, the first to suffer the consequences are always those of us studying international law at undergraduate and postgraduate levels in India. While researchers are able to overcome this obstacle, the lack of adequate incentives and inappropriate integration into the understaffed The legal and treaty division of the Department of External Affairs means that, by and large, Indian scholars of international law are deprived of the support of their only friend in the field: the Indian state.
Shantanu Singh is a lawyer at the Center for WTO Studies in New Delhi and was a research assistant to Charles Jalloh and Aniruddha Rajput, members of the UN International Law Commission.
Singh is grateful to Shubhangi Agarwalla for his comments on an earlier version.