Need Procedural Law to Decide Dispute between States: Aniruddha Rajput

Aniruddha Rajput; Photo: Bhavana Gaur

At 33, he is the youngest lawyer to have been elected to the United Nations International Law Commission (ILC). ANIRUDDHA RAJPUT, who has practiced in the Supreme Court for 10 years with a focus on arbitration, public law and commercial litigation, is the additional advocate-general for Jharkhand and a member of the 5th Haryana State Finance Commission. He was involved in the drafting of arbitration and conciliation rules of LCIA (London Court of International Arbitration) and the Delhi High Court Arbitration Centre and not very long ago awarded a PhD from National University of Singapore. In a secret ballot that took place in the first week of November, Rajput, who was India’s first-time candidate to the top world body, became one of the 34 to be elected by the General Assembly. He tells SUCHETA DASGUPTA that in order to solve disputes between member states of the UN, rules of evidence and procedure should be codified. Excerpts:

 Your election to the UN ILC is being hailed as a diplomatic victory.

Certainly. Winning the ILC elections is a diplomatic victory. It is the stature of the country along with individual competence that matters.

What is the current agenda of the ILC?

The ILC is looking at multiple projects at the moment. The important ones are the jus cogens (principles which are the supreme norms of international law from which derogation is not possible) and the provisional application of treaties. Jus cogens are peremptory norms such as prohibition of genocide, slavery or torture that can neither be changed nor violated by any country.

In case of provisional application [of treaties], states sign a treaty but they haven’t ratified it. What happens in the meanwhile? Take, for example, the Trans-Pacific Partnership (which also includes a chapter on investment protection). From the 12 states, only four states have ratified it. What happens then for the rest? Article 25 of the Vienna Convention provides sketchy rules, but the ILC is trying to develop the rules further and bring more sophistication of approach on the matter of treaties.

The ILC recently finished the first reading of the text on the identification of customary international law (unlike jus cogens, customary law requires consent and allows the alteration of its obligations between states through treaties). As expected, there are a few sticking points. So the ILC is expecting to get comments of member states on these post the first reading. Thereafter, it would finish the second reading and recommend it to the UN general assembly.

There is also work on the protection of the atmosphere; Professor Shinya Murase from Japan is a special rapporteur on this topic and he is making good progress. The topic is especially relevant to small island states which would get submerged should the sea levels keep rising. The ILC is working on crimes against humanity, immunity of state officials from foreign criminal jurisdiction and so on.

What is India’s agenda at the ILC? How do you plan to advance it?

First and foremost, ILC is not a place where countries are represented. It comprises independent experts. Although nominated by nation states, we are expected to behave in that capacity. We keep in mind global concerns, but yes, our cultural background plays a very important role in our understanding and approach to these concerns.

It has been alleged that your links with the RSS had a role to play in your nomination as India’s representative to the International Law Commission. What is your response?

The best entity to respond to that is the ministry of external affairs. I have been nominated by them, so it will be highly improper for me to comment on that. 

What exactly is your connection with the RSS?

That is not really the point here. The agenda of the critics is to deflect the whole debate, and I don’t want to go there. The point here is what is expected of the ILC and what is expected of a candidate. Article 8 of the ILC statute says that member states are expected to vote for individuals who possess the necessary qualifications and have recognized competence in international law. If 160 member states out of 193 think I am competent—and after having interacted with me through their legal advisors who are, themselves, international law experts—that itself should answer those who have been questioning my competence.

What are the issues you feel strongly about as a lawyer at ILC?

At the moment, there are six topics that have been put high on the agenda of the ILC’s future program and they need to be codified as fast as possible. One of them is on rules of evidence because of the proliferation of disputes between states. For example, there is the international tribunal for the law of the sea, investment arbitration, WTO disputes, state-to-state arbitration and so on. There are many disputes between member states of the UN and generally between the states and we still need to codify rules of evidence and rules of procedure. The Marshall Islands case (against India, Pakistan and the UK for allegedly failing to halt the nuclear arms race) is an ideal example. It is still not clear whether there is a standard to be met to decide whether there is a dispute between two states or not for the ICJ to exercise jurisdiction. That’s an area I would like to work on at the ILC.

What has been the progression of your career?

I have been interested in international law right from my student days. I have been a part of the Philip Jessop moot court competition and we won the North India round. I also represented India in Washington DC as a student.

If 160 member states out of 193 think I am competent after having interacted with me and after their legal advisors have interacted with me, that itself should answer those who have been questioning my nomination.

When I was in the London School of Economics, we won the British rounds, the North European rounds and were in the World finals. That is how my interest in international law started. After that, I decided to start practicing in the Supreme Court where I continued my interest in international law.

Of course, there are very few cases of public international law in the Supreme Court and I had the opportunity of taking them up. I also took up private international law, but continued my interest in public international law by researching and teaching. I used to teach in Indian Law Institute, Delhi, and am presently teaching law of the sea at NLU, Delhi.

I have worked in the fields of international trade, international investment, law of the sea, maritime delimitation, international customs and treaties.

There is the issue of 54 missing PoWs from the 1971 war between India and Pakistan. Will you be working on facilitating their return?

ILC is not an ad hoc or an issue-based institution. It has to chart out its long-term agenda. The experience of the past 68 years shows that it will continue to work on the fundamental principles of international law. Many of them relate to treaties and customs. So the work of ILC would essentially deal with that kind of generalist international law.

Apart from law, what are your other interests?

I write literature in Hindi and Marathi which, incidentally, is my mother tongue. I read a lot of philosophy and try to write in those areas. 

Lead picture: Aniruddha Rajput; Photo: Bhavana Gaur