India’s nominations to international institutions are not representative of gender, caste and religion. The state cannot afford to be complacent about this lack of diversity.
Neeru Chadha, India’s nominee to the International Tribunal for the Law of the Sea (ITLOS), was recently elected to the body. Chadha is the first Indian woman to be nominated and elected not only to the ITLOS, but to any important international adjudicatory body.
Along with Chadha, another woman candidate, Liesbeth Lijnzaad from the Netherlands, was also elected to ITLOS. Prior to this, only one woman was ever elected to the key maritime tribunal since its origin in 1996.
The history of the past seven decades suggests India does not take diversity into consideration when nominating candidates to international positions. Until Chadha, our nominations have tended to draw on a limited pool of talent: in the main, upper caste men. A look at the positions occupied by Indians in international adjudicatory and other bodies shows the nominal presence of individuals belonging to different social backgrounds.
The International Court of Justice (ICJ) and the International Law Commission (ILC) are apt examples in this regard.
The ICJ has had four judges from India – Sir Benegal N. Rao (1952-53), Nagendra Singh (1973-1988), Raghunandan Swarup Pathak (1989-1991) and Dalveer Bhandari (2012-present) –and four ad hoc judges, namely Mohamed Currim Chagla, Nagendra Singh, B.P. Jeevan Reddy and Pemmaraju Sreenivasa Rao (for Singapore).
So far, India has sent seven persons as members of the ILC. These are: Sir Benegal N. Rau (1949-1951), Radhabinod Pal (1952-66), Nagendra Singh (1967-1972), S.P. Jagota (1977-1986), Pemmaraju Sreenivasa Rao (1987-2006), Narinder Singh (2007-2016) and Aniruddha Rajput (2017-present).
Similarly P.C. Rao, an Indian, has been a judge at ITLOS since its inception. India has renominated Bhandari for a second term at the ICJ, elections for which will be held soon. There is no gender parity among the names mentioned and their social background also reflects a lack of diversity in terms of caste and religion, with most coming from socially privileged backgrounds, barring a few exceptions . To be fair, of course, the absence of diversity is also glaring in national legal institutions.
An international malaise
The lack of diversity at international institutions is not specific to Indian representatives alone, though Indian social reality has certain specific features like caste discrimination. Most of the international adjudicatory and other bodies lack diversity in certain respects, which is conspicuous in the case of gender.
Gender disparity is not specific to ITLOS alone. It exists across international adjudicatory and other bodies. The ICJ has had only four women judges of the total of 106 since its inception. They are: Dame Rosalyn Higgins (UK), Julia Sebutinde (Uganda), Joan Donoghue (US) and Xue Hanqin (China).
Similarly, only seven women have ever been elected out of the total of 228 members to the ILC. They are: Patrica Galvão Teles (Portugal), Marja Lehto (Finland), Nilüfer Oral (Turkey), Concepción Escobar Hernández (Spain), Marie Jacobsson (Sweden), Xue Hanqin (China) and Paula Escarameia (Portugal).
According to a study on the major international tribunals, women occupy only 17% of positions in these institutions. Institutions like the ICJ and ILC provide for diverse geographical representation as their respective statutes state that the “representation of the main forms of civilisations and of the principal legal systems of the world should be assured”. There is no such requirement in these statutes for gender or other forms of diversity.
However, women’s representation is better in the case of the International Criminal Court (ICC). Of the 41 judges who have served or are serving at the ICC since its inception, 15 are women. The reason for this is attributed to the ICC statute itself, as it requires fair representation of male and female judges along with representation on the lines of geographical and principal legal systems. Accordingly a procedure is being followed for the nomination and election of judges to ensure a fair representation of male and female judges.
Does diversity make any difference?
As international adjudicatory and other bodies work in accordance within a certain legal framework, what difference does the diversity make for these institutions? After all, those who occupy these positions are expected to act according to the mandate given to them. In my view, diversity carries significant value in at least two respects. First, if there is discrimination based on a certain identity that prevents some people from accessing and occupying certain positions, then equal representation of diverse groups itself is an important goal to be achieved. It does not necessarily lead to any substantive changes in the way these institutions function.
Second, diversity brings in different lived experiences that would contribute to the work of these institutions. When efforts were initiated to establish an international ad hoc tribunal for the former Yugoslavia, suggestions were made by some groups and some states for inclusion of judges with diverse backgrounds like gender and religion. For example, a letter was written in March 1993 on behalf of the members of the organisation of the Islamic Conference by the representatives of Egypt, Iran, Malaysia, Pakistan, Saudi Arabia, Senegal and Turkey to the United Nations addressed to the Secretary-General that stated that the judges “shall represent, on an equitable geographic basis, the world’s major legal systems, with particular representation from the Islamic countries and with due regard to gender representation”.
It is generally accepted that the presence of women judges on the international criminal tribunals contributed towards interpreting the law effectively in relation to violence against women in situations of conflict. It is argued, for example, that the presence of Navanethem Pillay on the International Criminal Tribunal for Rwanda contributed to understanding sexual violence in the context of international law in relation to the crimes against humanity and genocide in the Akayesu case.
This led to important future jurisprudence in relation to violence against women. The experience of these ad hoc tribunals also contributed to making the fair representation of male and female judges on the ICC mandatory. While legal formalistic understating emphasises that law and legal institutions work in an autonomous and neutral way in reaching objective conclusions in a given dispute, studies arguably show that diversity on the bench does make difference in terms of lived experiences of those who are on the bench, along with other factors.
What can India do?
Examples of the ICJ and the ILC show that India’s representation at the international adjudicatory and other bodies is far from diverse in terms of gender, caste or religion. Though that seems to be the reality with other countries as well, as statistics show, that cannot be a reason for national complacency. As it is the’ prerogative of states, in the absence of a mandatory requirement, to nominate their representatives to most of the international bodies, the burden falls on them to nominate individuals from as diverse a background as possible.
International institutions have come to deal with many issues that have immediate implications to domestic matters. These include matters relating to human rights, humanitarian law, refugees, trade and environment. International institutions of importance are not only adjudicatory bodies like the ICJ and ITLOS but include various United Nations institutional mechanisms like the human rights treaty bodies and special procedures. India should evolve a transparent institutional mechanism for nominating its representatives – one that reflects the Indian social reality. There should be specific guidelines underlining the need for representation of various groups along with the need to take into consideration the specificity of the institutions.
Srinivas Burra is an assistant professor at the Faculty of Legal Studies, South Asian University, New Delhi.