Dr. Aniruddha Rajput is a Member of the UN International Law Commission (2017–21).
His areas of expertise are general international law, dispute resolution, boundary disputes, law of the sea, international investment law and international trade law. He has advised governments on proceedings before the International Court of Justice, private clients on proceedings under the Alien Tort Claims Act before the US Courts, and human rights and other public international law litigation in the Supreme Court of India.
Dr. Rajput, how was your experience as the Chairperson of the Drafting Committee for the 69th Session? What additional responsibilities you had to perform?
The Drafting Committee is truly an intellectual den of the ILC. That is where, the general philosophy behind the provisions is put into text and the best text that would capture that thought is identified. There is a challenging task of achieving a consensus on the thought as well as the thought. At times, what may appear to be a mere fight over commas, full stops, colons, semi-colons, has a deeper meaning to it. It is quest for choosing the impeccable word to represent the idea. The Drafting Committee is a collegiate body and it works by consensus. The collegiate nature is well manifested in the working of the Drafting Committee. When we begin, the Drafting Committee members have widely divergent views, but as we proceed we gather around a consensus, where all are willing to reconsider their positions to achieve a consensus outcome. This in my view is a truly neutralizing feature and effect in the process of identification of international law. By neutralizing I mean, neutralizing the effect of legal, cultural, political and all other individual preferences: putting the collective good ahead of individual choices — after all that is how international cooperation and global peace and security can be achieved. As a Chairperson of the Drafting Committee, I had to preside over the meetings and oversee the functioning of the Drafting Committee. But most importantly, bring the Drafting Committee to a consensus or simply identify it if it is coming along by itself — which may not always happen. There is a consensus moment on a provision and the Chairperson has to be vigilant not to miss it, otherwise it may take a long time before it re-emerges. Then again, the consensus shall fit with the conviction of the members about the form the law should take.
The proceedings of the Drafting Committee are confidential. The only available record is the Statement of the Chairperson of the Drafting Committee, which constitutes the travaux préparatoires of the text. The Secretarial of the Commission provides excellent assistance and without them the task could not be achieved. But it is ultimately the Statement of the Chairperson and the Chairperson has to ensure that it reflects all the discussion and views in a fair manner.
A Chairperson has to use several levers to persuade members to come around a consensus, from soft persuasion to using the authority of the Chair. The Chair however has its limitations since all members are equal and chair is no different. Thus, the respect of the members and the decorum of the institution have to be maintained. In simple words it is a balancing act and everything is to be done in a balanced manner. It is not only the discussions on the table, but on occasions and on certain sensitive matters there is a need to speak to members who have special concerns on a certain issue. Ultimately, it is the Special Rapporteur who is the master of the topic, the Chairperson has to be a catalyst for the consensus: present and active but not seen in any manner to be taking over the process.
In addition to chairing the Drafting Committee, I was a member of all other committees of the Commission. That year, I proposed a topic ‘Evidence before International Courts and Tribunals’, which was approved by the Commission in that year itself and added to the Long Term Programme of Work.
Among the various topics which are on the programme of work of the Commission, which is the most challenging in your opinion from a “codification” perspective?
Article 15 of the Statute of the ILC has a clear distinction between ‘codification’ and ‘progressive’ development. There may be some situations where this distinction may be difficult to draw, but that does not mean it can never draw in any situation. It is necessary that the ILC draws that distinction in its work so that the users i.e. the States and international courts and tribunals are aware of the normative quality of the legal issue in question. I would therefore understand ‘codification’ as a “more precise formulation and systematization of rules of international law in fields where there already has been extensive State practice, precedent and doctrine.” (Article 15, Statute of the ILC) Most of the work that the ILC is presently doing is not strictly in this domain. It is mostly clarifying the law.
The ILC recently finished the second reading of Identification of Customary International Law and Subsequent Agreement and Subsequent Practice. It is understandable since the major areas of codification such as treaties, law of the sea and state responsibility is over. From the current programme of the ILC peremptory norms of international law (jus cogens) is an area with insufficient basis to codify. There is some amount of precedent (judicial practice) which guides the work. On some other topics, at times, there may be a temptation to disregard the practice to find a more convenient solution, in other words replace the conclusions of codification through progressive development. In sum, all the topics currently on the agenda do raise some serious challenges regarding the ‘codification’ process.
You also serve as a member of the Board of Studies of the South Asian University established by the South Asian Association for Regional Cooperation (SAARC) countries. How do you see the future of international law specialization in these countries, and what plans the Faculty of Legal Studies (South Asian University) has to ensure a vibrant environment for studies and research in international law?
International law is on a rise, not only in South Asia but in Asia and Africa. When I mean on rise, I mean the sentiment of the young students and academics. Some countries from Asia and Africa are doing very well, whereas some others are not. That will always remain the case, but the sentiment is positive and encouraging. The South Asian University was created to achieve greater integration amongst students in the South Asian Region. Something the European University Institute (EUI) has achieved. The Faculty of Legal Studies is focuses on international law and constitutional law. Honestly, the work has just begun and there is a very long and very difficult journey ahead.
In 2017, you were a Practitioner-in-Residence at the Berlin Potsdam Research Group “International Rule of Law — Rise or Decline?” based at the Humboldt University Berlin. Can you discuss briefly about your research findings?
Firstly, it would be absolutely incorrect to look at the West and declare that international law is on decline. That is often the sentiment in those regions, but in other parts of the world it is not. International scholarship needs to move away from its Eurocentric focus for drawing conclusions about international law. At times, even analysis done on the situation of international law in Asia is done on by Western scholars based on Western considerations.
It is undeniable that international institutions are under strain. They are under strain because their creators were western hegemonic powers that are now losing their hegemony in the institutions and prefer to destabilize those institutions. The ‘rest’ of the world is capable and competent to run those institutions. They surely need to take up that role. This is not really a state of decline, rather transition, where the strength of old guard is reducing and of the new ones is emerging and strengthening. This is the argument that I make in the book chapter I wrote during my stay there, called ‘BRICS as Emerging Powers and Future of International Law’.
In specific areas, the trends would differ. Also, a lot would depend on perspectives. Taking the case of investment arbitration, from a pro-investor perspective there is a decline, but from a pro-State perspective there is a rise. From the view of greater law making through clarification of existing treaties there is a rise. The field is certainly under strain considering the withdrawals from ICSID and BITs by States it is a decline.
Your opinion on the relevance of international law in the modern world? Do you believe that advancing accessibility to international law worldwide can strengthen the international rule of law?
Unfortunately for international law, we rarely see what it has achieved and focus entirely on what it has not. Often, what it is said to have not, was never meant to have been achieved by it in the first place.
There is some perception that the world is better if everything is regulated by international law. No, the world is full of plurality and differences. Progress is not achieved by destroying the differences and forcing uniformity. Progress is achieved by recognizing the differences, finding common grounds and moving forward. This is an arduous and time-consuming task that needs patience and hard work. Durable peace and progress cannot come with hasty and high-handed ideological excesses.
International law is not just relevant but critical for the modern world. Access to resources is essential to create this awareness. I remember preparing for Jessup as a student and we had not material. We had to undertake a 26-hour train journey to go to Delhi to prepare. Today, times are changing. If material is easily available interest is kindled and developed. We need more international law research tools. I am very impressed with Jus Mundi. Jus Mundi has a very important function to perform in creating awareness and upholding the international rule of law through access to legal resources and I wish you all the very best and success in your journey!