Reflections from International Law Association’s 80th Biennial Conference

On numerous occasions, I found myself speaking to, or attending a discussion with an international advisor of the Society. One was deeply delighted and found that life had come to a full circle. For this, words cannot do justice to my gratitude towards Professors Patricia Teles, Nilufer Oral, Milena Sterio, Sean Murphy, the evergreen Sir Michael Wood and the delightful Dr Attila Tanzi. All of them, have provided unrelenting passive and active support and encouragement to my initiative. A special note of gratitude, I would like to extend to Professor Antonios Tzanakopoulos for he was the one who taught me Public International Law at Oxford University. I was there, as I was at the recently concluded ILA Conference, the youngest participant. As a representative of my University, O.P. Jindal Global University’s School of International Affairs, I participated in the Summer School entitled, ‘Jindal-Oxford Summer School’ on “International Law and Global Governance”. As a part of my assessment, I wrote a paper and presented a PowerPoint presentation on "Global Governance and Environmental Degradation: An International Challenge" at this summer program. Professor Tzanakopoulos and I share a long-standing professional relationship. It was a delight to hear and see him after a long break. I was able to discuss the Book Project of the Society with him. This book I speak of will be a collection of lectures delivered by the esteemed persons mentioned above and others. This, again, is inspired by the finest and most stimulating undertakings of the International Law Association.

Truly, one is deeply grateful to the Association. The thought, vision, duty to care and diligence of the organisers was par excellence. For future events, the bar has been set as high as the Himalayan mountain range. Quite daring and unsurmountable. To steer this report towards more meaningful avenues, as was directed by the extremely helpful, Ms Claire Martin, I would like to utilize the rest of the report on substantive aspects. Namely, my reflections on the Panels and Committees I attended.

Titled appropriate, International Law: Our Common Good, the themes of the session focused their attention on aspirations and opportunities to research and re-imagine the development of law in response to defining challenges of current generations such as climate change, and global pandemics, and the use of force. Through collaborative efforts of institution building, I observed, that partnerships and common themes emerged targeted towards codification and progressive development of international law. At the Conference, one became acutely aware of the importance of nurturing a deep understanding of international law. To this end, was able to reimagine skills honed by my formative strands and inferences developed in India, as my understanding of the law is rooted in the practices of developing States. My passion for international law was reinforced however I acknowledged the vitality of being clear-eyed about its nature which can strengthen the rules on which international cooperation is based and help to promote a just and peaceful system of international relations. Towards, international laws as a common good, one must guarantee intellectual rigour, competence, and commitment.

To shed light on these requirements, I, on the first day of the Conference partook in the meeting on Sea-level Rise. During the discussion, one was tempted to comment on the limited utility of the United Nations Convention on the Law of the Sea. It is only Article 194 that provides “States should protect and preserve the marine environment”, including “rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life”. The discussion also shifted towards a burgeoning new area of research and tension: human rights of those suffering forced migration due to climate change. In short, see level refugees. To this end, the experts underscored issues of statehood and other ancillary topics. As a cumulative response, the Committee suggests interim solutions. Namely, building sea walls, land leases from other territories and cession of territory. A member of the Committee, adroitly attempted, however, in vain, to steer the discussion towards the lack of capacity for human rights protection and infrastructure of states towards finance and responsibility. In some sense attempting to provide a calm reaction in the funnel of common and differentiated responsibility as opposed to knee-jerk reactions such as those highlighted above. The adroit member, it must be added, was speaking the language of global commons and to this end utilized Bangladesh and her loss of territory.

Geographical hotspots, such as those in the Indian and Atlantic Oceans were highlighted to underscore the evolution of strategy and perspective to combat the status quo. Members suggested, as I have written above, the unification of affected states, the creation of a federation of statehood and the expert undertakings of the International Law Commission's work on Sea-level Rise. As a parting note of discontent, not much attention was paid to pecuniary action in the form of ecocide as a deterring agent. In addition, the question of the protection of underwater cultural heritage was shoved under the carpet. In sum one is led to believe is the more time one takes to react actively and collectively, the more desperate and poorer the response of nations will become. This also led to the creation of legal malaise. To this end, one can reflect on artificial island-building to protect the islands and ensure their maritime boundaries.[1] However, in doing so, nations will counter the well-respected and often cited China-Philippines awards which expressly discussed islands and rocks which were isolated reefs transformed into much larger landforms to impose what it sees as its territorial claims in the sea. These claims have been exploited by its fishing fleets to enter territory that is claimed by other nations, such as the Philippines. However, On 12 July 2016, the Arbitral Tribunal ruled in favour of the Philippines. It clarified that while it would not "rule on any question of sovereignty ... and would not delimit any maritime boundary", China's historic rights claims over maritime areas (as opposed to land masses and territorial waters) within the "nine-dash line" have no lawful effect unless entitled to under the Law of the Sea. Eight governments have called for the ruling to be respected, 35 issued generally positive statements noting the verdict but not calling for compliance, and eight rejected it. The United Nations itself "doesn't have a position on the legal and procedural merits of the case or the disputed claims", and on 12 July the Secretary-General "expressed his hope that the continued consultations on a Code of Conduct between ASEAN and China under the framework of the Declaration of the Conduct of Parties in the South China Sea will lead to increased mutual understanding among all the parties."[2]

The point one is trying to convey here is that inactivity will create a situation of desperation. Desperation will lead to poorly devised coping mechanisms. Poorly devised mechanisms may lead to irritation and conflict with international law, environmental protection frameworks and the underwater heritage. All may be lost with the islands. The following Panel on the use of force attracted a full house. This was no surprise not because of the star-studded panel but also because they spoke during an international armed conflict. The Chair drove attention towards the utility of the rules of war and the Ukrainian conflict as a stopgap in the furtherance of legal literature and thought focusing on the use of force. Provocatively channelizing the death of use of force.

As Professor Erika de Wet spoke of aggression and neutrality in the case of conflict, one’s mind kept drifting towards India’s Non-Aligned Movement/ Policy. The movement perhaps encapsulated the posturing of imminent war and neutrality. Professor, impressively, unpacked this using Austria as a case study. To do so, the focus was paid to lethal and non-lethal weapons as means to support nations. Austria, like others on the fence, given its geographical positioning and ideological underpinnings leaning toward the European Union, being its member provides for an interesting study. As Professor suggested, constitutionally, Austria, under Act of 25 Oct. 1955 is bound to not partake in military alliances, foreign military bases or armed conflict. Armed conflict and its avoidance are almost enshrined and binding to Austria given its accession to the Hague Convention V and XIII of 1907.

In a typically legal and pedantic mini-discussion, the Professor focused her discussion on determinants and differentiated her attention on lethal weapons and all war materials. This was undertaken to determine and underscore the point that non-military trade was not affected. In addition, private military exports are, even as this report is written, permissible under export licenses and re-export. To emphasise in a different light, it must be noted that neutral conduct and co-belligerency are key ingredients of this discussion. Direct participation can be understood as a policy stance of enforcement of no-fly zones. To end, the discussion zoomed out to evoke that permanent neutrality and compatibility with regional collective security are key integral issues. Swiftly, the Chair invited Dr Attila Tanzi. He spoke on cyberspace and adaption of public international law to underscore the policy consideration of national security to protection of privacy. On this front, one is tempted to reflect on India’s Supreme Court Justice and soon-to-be Chief Justice, who delivered a speech entitled, “Protecting Human Rights And Preserving Civil Liberties: Role Of CourtsIn A Democracy”[3]. Why this is relevant is because the Judge noted, contrarily to Professor Tanzi, “… in very positive terms about the potential of the technological revolution in the judiciary, the future of technology and especially about when it starts to curtail civil liberties uh and especially not in terms not necessarily I'm not interested that much in regulating big tech but the state.”

The lack of interest in regulation can become a harbinger of future conflicts in the Indian territory. These can be induced in the form of civil strife or international skirmishes with either Pakistan and/ or China. Importantly and very adroitly, Dr Tanzi focused on humanitarian law and autonomous weapons. This was, one assumes, to underscore the growing concern on state determination and Protocol provisions to adhere towards. Surveillance and Human Rights, as Dr Tanzi and Supreme Court Justice of India, Dr Chandrachud share underscores the distinction between nationals and foreigners and focus on public and private space. In sum, the stimulating Panel focused on an age-old problem of conventional war and at the same time cyber war and crime. The re-imagined of the rules by which we abide therefore requires re-reading of the use of force and neutrality under the 1907 principles. Dr Tanzi underscored as this report has highlighted above the growing requirement of cyberspace and cyber warfare principles framework. To this end, the limited scope of the International Criminal Court’s Rome Statute was found troublesome. Since the scope is limited, academics and professional scholars encourage the creation of a new and specialized Criminal Tribunal. Appropriate attention was also delivered to the quite remarkable and unprecedented support which has been expressed by the 41 intervening states in support of Ukraine against Russia in the ICJ Provisional Measures.[4] In concluding remarks, attention was driven towards the fulfilment of requirements to act in self-defence under the United Nations Charter under Article 51. To this end, the invasions of Libya, Syria and Iraq and the lack of any accountability for such abuses and creations were underscored. In addition, the lack of creation of superpowers’ support towards a Special Criminal Tribunal: a switch of the tables- Gordon Brown’s statements and support- stinks of hypocrisy. A powerful and vociferous discussion indeed.

In the Concurrent Session discussing the developments in Atrocity Prevention, Investigation and Prosecution, Chair, Professor Leila Sadat reminded the audience of the instrumental work undertaken by the ILA to prepare a draft for the ICC. The discussion proceeded to discuss the Ukrainian conflict and the collection of evidence with the risk of fragmentation of the resources. To underscore the importance of States’ intervention and support to the work of an international court such as the ICC to Ukraine, Venezuela was discussed. Since The Office of the Prosecutor of the International Criminal Court had been conducting an ongoing preliminary investigation into the situation in Venezuela since 8 February 2018. But on September 26, 2018, a group of States Parties to the Rome Statute, including Argentina, Canada, Chile, Colombia, Paraguay, and Peru, collectively lodged a referral to the Prosecutor over the situation in Venezuela. In this referral, it was asked that the prosecutor conduct an inquiry into suspected crimes against humanity that occurred in Venezuela on or around February 12, 2014, while President Nicolás Maduro was in power. In addition to being the first referral to be submitted by a "coalition" of States Parties, this ninth referral the Prosecutor has received (directly) concerns an event that took place on the territory of another State Party. One can also buttress the status quo by noting that the war in Ukraine will mean a substantial rise in the number of cases at the ICC and its current budget will no longer be sufficient for the years ahead. On this front, it must be noted that during the meeting Mr Hoekstra emphasised the importance of the ICC’s efforts to combat impunity worldwide and called on EU ministers to jointly take the lead in ensuring that it has the necessary funding. ‘The work of the ICC is one of the main processes for achieving justice for the people of Ukraine’, the minister said.[5]

Discussion swiftly transitioned to highlight the limited mandate of the Rome Statute that governs the ICC. In the face of this, a hybrid Tribunal with the extended jurisdiction of the Council of Europe and Ukrainian Courts was imagined. However, in Courts and Tribunals of such nature, even with full meticulous adherence to international fair trial norms, including the presumption of innocence and proof beyond a reasonable doubt, many Russians will have doubts about the likelihood that the Ukrainian war crimes prosecutions of Russian soldiers will be impartial. Second, Russia itself might begin prosecuting Ukrainian soldiers for war crimes committed against Russian troops. Even while it seems like many fewer Ukrainians than Russians committed war crimes, some of them may have been committed by Ukrainian soldiers. According to the Geneva Conventions, belligerents must either trial war crimes suspects in court or extradite them for prosecution; however, ideally, this should happen after the war has finished when circumstances may allow for better administration of justice. If war crimes trials are utilised for propaganda, the public may lose trust in them. Third, war crimes trials take a long time to prepare for and conduct, whether they are conducted by national courts, the ICC, or some other ad hoc, special, or hybrid jurisdiction. Until verdicts are reached, ongoing trial processes may not have much of an impact on Russian public opinion.

Furthermore, On 19 May 2022, 21-year-old Russian tank commander Vadim Shishimarin pled guilty to shooting dead Oleksandr Shelipovan, an unarmed 62-year-old civilian who was riding his bike in Ukraine’s northeastern Sumy region. In Ukraine’s first trial for war crimes relating to the ongoing war Russia launched on 24 February, the District Court in Kyiv sentenced Shishimarin to life in prison.[6] Thereby revitalizing the Ukrainian Courts' efforts and minimizing an international effort. Member of the International Law Commission, Professor Sean Murphy steered the discussion to focus on the legal consequences for peremptory norms and the jus cogens principles. In addition, he shed light on the protection of the environment and ecocide: legal frameworks in the light of the ongoing conflict in Ukraine. Professor Sterio focused on Myanmar and the crimes against Rohingyas. Professor Sterio’s remark on the general sociological calibration of selective justice and focus on Ukraine and not on Rohingya was very crucial and thought-provoking.

In the session focusing on the Interests of the Global Community in International Law, a resounding absence was noticed. Before highlighting the same it must be noted that the discussion was based on Judge Bruno Simma’s lecture at the Hague Academy in 1995, “From Bilateralism to Community Interest in International Law”.[7]1995 Hague Academy of International Law lectures and development of principles in the common interest. In his article in the Australian Journal of International Law, Judge Simma noted;

“Louis Henkin said it well in his 1989 General Course at the Hague Academy: [Principles common to legal systems often reflect natural law principles that underlie international law. ... [I]f the law has not yet developed a concept to justify or explain how such general principles enter international law, resort to this secondary source seems another example of the triumph of good sense and practical needs over the limitations of concepts and other abstractions.”[8]

The glaring absence, as was noted in the Jadhav Case between India and Pakistan was the inability of the Court to declare the right formally and legally to counsel as a human right. The LaGrand and Avena and Other Mexican Nationals Case add further importance to the growing cases of human rights violations. In the two cases, the Court held that Article 36 of the VCCR imposed an obligation on the parties to provide consular communication, access, and visitation to detained citizens of VCCR state parties without delay, which is consistent with the ICJ's prior jurisprudence on Article 36 of the VCCR. The Jadhav case is significant because it establishes that these responsibilities apply to all nationals of VCCR parties who are in the territory of another state party, including those who are charged with terrorism and espionage, even if one of the parties disputes their nationality. In the face of this, the glaring vacuum must be identified. This is inherent in the structure of the Court and its functioning given its mandate and judgement which only limits the state parties to be bound by the judgement. This, as a result, cannot create international precedence. Hence, curbing its international appeal and authority, especially in the face of human rights abuses.

In the Young Scholars Panel discussion, the focus by myself and Anil Malhotra was paid on International Family Law in our paper and Presentation entitled, “Complicity and Conflict of Laws in International Family Law- Indian Perspective”. A brief abstract is reproduced from the Paper.

Under Article 40 of the Draft Constitution, 1948, had endeavoured to promote “international peace and security by the prescription of open, just, and honourable relations between nations, by the firm establishment of the understandings of international law as the actual rule of conduct among governments and by the maintenance of justice and respect for treaty obligations in the dealings of organized people with one another”. Similarly, in 1984, Hari Vishnu Kamath added, “India with her ancient cultural and spiritual heritage and her tradition - a centuries-old tradition of non-aggression – is best qualified to enhance respect for international law and treaty obligations.” Thus, India has played and continues to play a pivotal role in developing international legal principles. It is also important to note that India enshrines complicity to international law, under the Indian Constitution’s Directive Principles of State Policy under Article 51. Under the same Article, India shall endeavour to promote international peace and security, maintain just and honourable relations between nations, and foster respect for international law and treaty obligations in the dealings of nations, besides encouraging the settlement of international disputes by arbitration. Article 253 of the Indian Constitution empowers the Indian Parliament to make domestic laws for implementing treaties, agreements or conventions signed with countries, as also to give effect to any decision made at international conferences. Present remedies under Indian Constitution, require invoking Habeas Corpus extraordinary writ jurisdiction of High Courts or Supreme Court. Bitter disputed custody battles requiring conventional evidence proof relegates parties to remedies in the Guardians and Wards Act, 1890.[9] Natural parents then seek rights of custody, access, visitation, and guardianship. Impasse soars. Inadvertently, converse realism dawns.

Child removal is now a two-way street Children permanently residing in India, removed to alien jurisdictions, cannot legally be directed to return to India.[10] Child custody litigations are commenced concurrently in different jurisdictions. Families get split across continents. In India, such children face lengthy Court proceedings without relief.[11] Mirror orders safeguard the rights of children, and the movement of transnational families was settled by Supreme Court[12]but the judgment was recalled on October 7, 2021, for noncompliance. Mirror orders are protective measures evolved by Courts in different countries. They respect orders for benefit of child rights to ensure the return to the country of habitual residence.[13] Such orders if accepted to be implemented by foreign Courts are said to be mirrored. International Family Law requires one Court deciding, to avoid conflicting judgments on custody rights of the same children in different jurisdictions. This principle is called the comity of Courts[14]. It engages my interests. Mirror orders protect children’s movement across countries. This ensures that litigating parents are legally bound across conflicting jurisdictions. I advocate that India cannot be criticized as a haven for removed children.

If decisions of Indian Courts are made part of foreign Court orders, risks of child removal are minimized[15]. Simultaneously, in reciprocity, Indian Courts must adopt the principle of mirror orders, whilst respecting foreign Court orders concerning custodial rights, by returning children to foreign jurisdictions, when such foreign children are temporarily in India[16]. Innovative judicial mechanisms can work as a dual carriageway. Through my research and skill set, I want India to adopt international norms. Since India is not a signatory to the Hague Convention, this formula is the only workable method for meaningful protection of child rights in actual practice, till Parliament enacts a domestic law. Till India accedes to Hague Convention and statutory Indian laws are made to recognize inter-parental child removal as an offence, this piecemeal judicial mechanism can work as practice directions. To conclude, the author would like to offer personal reflections on the theme of the Conference.

The ‘common heritage of mankind’, a pioneer legal principle within international law provides for a general framework of universal responsibility for sustainable legal and environmental protection. It establishes a close link of sea and space law to the law governing other areas beyond national jurisdiction, such as the high seas, the deep seafloor, and some might even argue to include the vast ice-covered Antarctica. Indeed, the legal regime of outer space has been described as ‘analogous’ to the basic status of the high seas, discarding special rules which only apply to the latter. In the year 1970, the United Nations General Assembly passed Resolution 2749[17] which declared the seabed in areas beyond national jurisdiction, and the resources resting on it to be the ‘common heritage of mankind. Propounded by Maltese Permanent Representative to the United Nations Ambassador Arvid Prado, this landmark legal concept was enshrined in the United Nations Convention on the Law of the Sea (UNCLOS) under Article 136. Pardo rightly feared that without an international regime, nations grieved that those with the greatest economic and technological advantages would reap the greatest rewards.[18] This echoed through him all less-developed nations who collectively believed that due to the vast economic and scientific potential of seabed resources, it was important to provide equal access and not allow for a skewed exclusivity to developed countries that possessed the requisite scientific and financial means to invest substantially in deep seabed mining technology.

It has found some form of legal recognition only in a restricted number of treaties and other instruments for a restricted number of state parties supporting them. This is also true for space law, even if one considers the qualification of radio frequencies and satellite positions in the geostationary orbit as ‘limited natural resources which should be distributed equitably, as laid down in the Convention of the International Telecommunication Union, in one way or another, as an expression of that principle. The opening of outer space territories and resources to the possibility of commercial ventures also raised new questions concerning the activities of states and private entities in outer space. The Common Benefit Principle of the 1967 Outer Space Treaty in combination with its no appropriation clause in Article 2 left open certain questions concerning sovereignty and property rights concerning permanent space stations, lunar stations, and astral and lunar mineral resources. The CHP was offered as a complementary principle that would fill these legal gaps by defining the nature and use status of outer space and its resources; clarifying the rights and obligations of states and private entities concerning these resources, and providing regulatory guidelines that would reduce the monetary risks of commercial space ventures.

‘Need I apologize for my choice of subject? Some may say it belongs to the realm of exotics of law. Some may ask: Why deal with issues so remote when there are so many much closer to us still awaiting a solution? Why reach so far?’ With these words, the late Judge Manfred Lachs introduced his 1964 lecture at the Hague Academy of International Law on the topic ‘The International Law of Outer Space’.[19] In its initial formative phase, space law has developed in anticipation of outer space activities at a time when such activities were still rather limited in practice. Significant progress was achieved since the two major powers, the United States and the Soviet Union, were at the time actively engaged in outer space activities, while most other states failed to perceive that any of their substantial interests would be affected in this connection shortly. While the major space powers seek to retain their monopoly positions and technological edge as much as possible, this has now clearly changed. Increasing numbers of states have become directly or indirectly involved in outer space or consider that their political and economic interests require the taking of a position. Conflict of interest, especially between industrialized and developing countries, has made achieving a consensus in the law-making process increasingly difficult. One peculiar highlight of this process has been the 1976 Bogota Declaration by eight equatorial countries claiming sovereign rights to segments of the geostationary orbit 36,000 km above their territory, which was met with rejection by the international community. Equatorial countries subsequently began abandoning this untenable position. One of the major treaty instruments was prepared based on the consensus method (instead of majority decision-making) to ensure the participation of the space powers.[20] As a result, reinforces the common heritage of mankind in letter and spirit.

[1] Nell Lewis, 'A Floating City In The Maldives Begins To Take Shape' (CNN, 2022) <> accessed 27 June 2022. [2] 'Philippines Asks Tribunal To Invalidate China&#039;S Sea Claims' (, 2015) <> accessed 27 June 2022. [3] This speech can be found here: and the Transcript here: ‘Rights are paper tigers unless given teeth by courts’: Full text of Justice Chandrachud speech: [4] 'Ukraine's Application Against Russia Before The International Court Of Justice: Joint Statement' (GOV.UK, 2022) <> accessed 27 June 2022. See Generally: Brian McGarry, 'Mass Intervention?: The Joint Statement Of 41 States On Ukraine V. Russia' (EJIL: Talk!, 2022) <> accessed 27 June 2022. [5] 'Netherlands Says More Funding Needed For Efforts To Combat Impunity Worldwide' (, 2022) <> accessed 27 June 2022. [6] See: 'Засідання Від 23.05.2022 По Справі №760/5257/22 За Обвинуваченням Шишимаріна В.Є.' (, 2022) <> accessed 27 June 2022. [7] Simma, Bruno, “From Bilateralism to Community Interest in International Law (Volume 250)”, in: Collected Courses of the Hague Academy of International Law. Consulted online on 27 June 2022 <> [8] Henkin L, "International Law: Politics, Values and Functions: General Course in Public International Law", 216 Recueil des cours 61-62 (1989-IV). [9] Sections 7,9 and 10 [10]Asha Bajpai, Child Rights In India: Law, Policy, and Practice (Oxford University Press 2018). [11] Verma, S., Srivastava, S. and Obrai, G., 2002. Dispute Resolution Process in India. [online] Available at: <>. [12]Smriti Madan Kansagra vs. Perry Kansagra, 2020(12) Scale 450 [13]The Hindu, 'Supreme Court Issues ‘Mirror Order’ In Child Custody Case' (2020) <> accessed 13 October 2021. [14]John Kuhn Bleimaier, 'The Doctrine Of Comity In Private International Law' 24 Journal of Catholic Legal Studies <,policy.'> accessed 13 October 2021. [15]Ibid 3. [16]Perry Kansagra v. Smriti Madan Kansagra, 2019 SCC OnLine SC 211 [17] Adopted at the 1933rd plenary meeting, 17 Dec. 1970. In: Resolutions adopted by the General Assembly during its 25th session, 15 September-17 December 1970. - A/8028. - 1971. - p. 24-25. - (GAOR, 25th sess., Suppl. no. 28). [18] See Advisory Opinion in the Legal Consequences for States of the Continued Presence of South Africa in Namibia (Southwest Africa), 19711.C.J. 16 (Advisory Opinion of June 21) [hereinafter cited as The Namibia Case]; Fisheries Jurisdiction (U.K. v. Ice.), 1974 l.C.J. 3 (Judgment of July 25); Western Sahara, 1975 l.C.J. 12 (Advisory Opinion of Jan. 3). [19] Lachs, Manfred. ‘The International Law of Outer Space (Volume 113)’. Collected Courses of the Hague Academy of International Law. Brill Reference Online. Web. 27 June 2022. [20] Malanczuk, Peter, and Michael B. Akehurst. Akehurst's Modern Introduction to International Law. London: Routledge, 1997. Print.