On November 12th, 2021, Dr Bimal Patel became the eighth Indian national to be elected to the United Nations International law Commission. He was among the 11 people from different countries in Asia nominated for the 8 seats that represent the Asia Pacific. Dr Patel’s election was the direct result of weeks of work put in by India’s permanent mission to the United Nations at New York. Dr Patel will become a part of the 34-member UN Law Commission for a period of 5 years starting from 2023. The membership to the commission was increased to 5 years last year in view of the current coronavirus pandemic.
The United Nations International Law Commission was set up by the General Assembly of the United Nations in 1947. According to the Charter of the United Nations, adopted the same year, the commission’s task is to “initiate studies and recommendations for the purpose of … encouraging the progressive development of international law and its codification.”
The “progressive development” part of the article refers to the preparation of draft laws on subjects that have not yet been regulated by international law and for which state laws are rudimentary and insufficient. “Codification” on the other hand, deals with the preparation of rules in fields that have already been legislated by state laws and for which a lot of groundwork already exists. The challenge, in this case, is to take into consideration the diverse doctrines that exist in different legal systems and create laws that apply globally to different legislatures and cultures. However, though the Charter designates them separately, the process of formulation of International Law is often a mix of both these processes.
The UN Law Commission, even though it creates these laws, does not possess the power to execute them. The fate of the Commission’s work is decided by the Sixth Committee, which is the part of the UN General Assembly that discusses and passes international law and other legal affairs. The Commission creates annual reports of its work, which is presented to the member states of the Sixth Committee at the International Law Week every year. It is the states that ratify, give recommendations and accept the laws proposed by the Commission.
The members of the UN International Law Commission are experts with “proven competence” in the field of international law. But the views of the nations are of paramount importance, as it is the nations that will implement and be affected by these laws. However, since the communication during the meeting of the Sixth Committee is verbal and constrained by time, the Commission employs another method to ask states to contribute to the formulation of International Law.
Codification, or making laws on topics that have already been covered by the states requires a very deep understanding of different countries’ laws, is a difficult and complicated task. In addition to choosing members from different geopolitical regions, the Commission also invites governments to share their views, reply to questionnaires, submit information on legislations, judicial and executive practices, protocols, and decisions of national courts, and so on. This information is sought to guide the Commission in the early stages of lawmaking and is an opportunity for the states to influence international law.
Yet, even though Part III of every annual report of the Commission asks states to submit these pieces of information, few nations actually do so. And the response that does come, is mostly from developed western nations, having robust legal affairs departments. This means that the policies and recommendations of a handful of nations shape laws that affect the 193 member states of the United Nations. India, unfortunately, is one of those countries that opt to forgo this onerous task. In spite of having provided eight members, India has submitted only two pieces of written information- two-note verbales- in March 1953 and February 1956 respectively, to the UN Law Commission. But maybe it is time that we see the skewed nature of Indian participation in the Commission and use this position for something greater than mere diplomatic clout.