India has a habit of nominating retired government officials in international forums but this is changing
Recent Election of India’s candidate Bimal Patel to the International Law Commission (ILC) of the United Nations Notable as this is the first time 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, Anirudh Rajput, was a businessman. Prior to Mr. Rajput’s election, for several decades, India regularly nominated retired officials from the Legal and Treaty 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 United Nations, the L&T division considered ILC membership “as its patronage”. Before Mr. Patel, the only example of an Indian academic elected to the ILC was that of Radhabinod Pal, a distinguished judge, in 1958.
trends in india
India’s habit of nominating retired government officials at international fora is not limited to ILCs; This is evident in other international judicial bodies as well. For example, in addition to a 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, BN Rao and RS Pathak. Singh and Rao were members of the Indian Civil Service in British India. Pathak, the 18th Chief Justice of India, was an unfamiliar name in the world of international law. Shri Bhandari is an honorable judge, but his scholarly contributions in the field of international law, prior to joining the ICJ, are largely unknown.
Two Indians who served in the Appellate Body, the highest judicial organ of the WTO – Ujal Singh Bhatia and A V Ganesan Generalists were bureaucrats. Similarly, two Indians who have been appointed to the International Tribunal for the Law of the Sea – PC Rao and Neeru Chadha — Working in L&T Division. The point here is not the merit of the candidates, but how international law proficiency has been ignored outside of government and the judiciary. India has produced excellent international law professors such as BS Chimney, RP Anand and VS Mani. His scholarly work in international law is read, cited and criticized around the world. Yet, none of them entered any of these international law institutions.
This is in contrast to the practice in other liberal democracies where leading academics of international law are regularly nominated to these bodies. For example, recently elected Australian nominee to the ICJ, Hilary Charlesworth, is a professor of international law and is known globally for her pioneering work on the feminist approach to international law. She replaces the late JR Crawford, another illustrious Australian professor of international law. Georg Nolte from Germany, now serving at the ICJ and formerly a member of the ILC, is a globally renowned professor of international law. Similarly, the UK has regularly nominated accomplished international law academics such as Hersch Lauterpuch, Ian Brownlee and Dapo Akande to these bodies.
No transparency in enrollment
Furthermore, no one knows how the Indian government selects candidates for nomination to these international law bodies. The lack of transparency in the selection process gives rise to speculations of favoritism and nepotism. For example, when Mr. Rajput, a young businessman, was nominated for the ILC, it was alleged that India supported his candidacy because of his ideological closeness to the ruling establishment. Such allegations not only undermine the legitimacy of the candidate but also raise doubts about the fairness of the system.
There is an urgent need to put in place a transparent mechanism in making these nominations, such as setting up of an independent search-cum-selection committee to recommend meritorious candidates. The Committee should invite applications from qualified candidates, examine them based on their noted expertise and professional reputation in international law, and then make recommendations publicly. Competence in domestic law should not be mistaken as expertise in international law. The Ministry of External Affairs can take this process forward. Since India invests considerable diplomatic energy in getting its candidate elected to these bodies, instead of using these bodies as post-retirement parking slots for bureaucrats and judges, it is important to nominate the brightest available talent in international law to the national is in the interest. Mr. Patel’s appointment to the ILC heralds a new era in which the government does not ignore expertise in international law outside the corridors of power.
Prabhas Ranjan is a Professor and Vice Dean, Jindal Global Law School, OP Jindal Global University. thoughts are personal
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