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Inheriting a Tragic Ethos: Learning from Radhabinod Pal

Part of: Theorizing TWAIL Activism

Published online by Cambridge University Press:  20 January 2017

Adil Hasan Khan
Adil Hasan Khan*
Affiliation:
Institute for Global Law & Policy (IGLP), Harvard Law School, Cambridge, Massachusetts
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        This terrible thing we’re witnessing now is
        Not unique; you know it happened before
        Or something like it.
        We’re not at a loss how to think about it
        We’re not without guidance…
        Anne Carson, Antigonick (2012).

    International law can, and times has, involved the performance of another way of living with, of accepting, uncertainty…

    Anne Orford, The Destiny of International Law (2005).

    We in the postcolony currently inhabit times constituted by the aftermaths of the catastrophic failures and tragic reversals of countless projects of global redemption and by the bereavement of their promised futures. As Simon Critchley observes, the experience of disorientation produced by such tragedies acutely raises the problem of action: “[E]xpressed in one bewildered and repeated question . . . what shall I do?” This essay takes this problem as its central concern by asking specifically how international lawyers should act in these “tragic times.”

    Type
    Symposium on Theorizing TWAIL Activism
    Information
    AJIL Unbound , Volume 110 , 2016 , pp. 25 - 30
    Copyright
    Copyright © American Society of International Law 2016

    References

    1 Orford, Anne, The Destiny of International Law, 17 Leiden J. Int’l L. 441, 476 (2004)CrossRefGoogle Scholar.

    2 See Scott, David, Tragedy’s Time: Postemancipation Futures Past and Present, in Rethinking Tragedy 199 (Felski, Rita ed., 2008)Google Scholar.

    3 Simon Critchley, Tragedy’s Philosophy, BYU Humanities Lecture Series (Feb. 21, 2014).

    4 See Mickelson, Karin, Rhetoric and Rage: Third World Voices in International Legal Discourse, 16 Wis. Int’l L.J. 353 (1998)Google Scholar; Anghie, Antony, C G. Weeramantry at the International Court of Justice, 14 Leiden J. Int’l L. 829 (2001)CrossRefGoogle Scholar; Vasuki Nesiah, “The Law this Violent Thing”: Dissident Memory and Democratic Futures, Colombo Telegraph (2013). See also scholarship orientated towards “conduct of office”: Genovese, Ann & McVeigh, Shaun, Nineteen eighty three: A jurisographic report on Commonwealth v Tasmania, 24 Griffitih L. Rev. 68 (2015)CrossRefGoogle Scholar; Pahuja, Sundhya, Letters from Bandung: Encounters with another Inter-national Law, in Bandung, Global History and International Law Critical Pasts and Pending Futures (Nesiah, Vasuki et al. eds., forthcoming) (on file with author)Google Scholar.

    5 Nandy, Ashis The Other Within: The Strange Case of Radhabinod Pal’s Judgment on Culpability, 23 New Literary Hist. 45, 54 (1992)CrossRefGoogle Scholar.

    6 Pankaj Mishra, From the Ruins of Empire: The Revolt Against the West and the Remaking of Asia (2012).

    7 See Scott, David, The Tragic Vision in Postcolonial Time, 129 PMLA 799, 801 (2014)CrossRefGoogle Scholar.

    8 On the partition, see Das, Veena, Language and Body: Transactions in the Construction of Pain, in Social Suffering 67 (Kleinman, Arthur et al. eds., 1997)Google Scholar.

    9 For important exceptions, see Gerry Simpson, Law War & Crime: War Crimes Trials and the Reinvention of International Law (2007); Kopelman, Elizabeth S., Ideology and International Law: The Dissent of the Indian Justice at the Tokyo War Crimes Trial, 23 NYU J. Int’l L. & Pol. 373 (1990-1991)Google Scholar.

    10 See Radhabinod Pal, Crimes in International Relations (1955).

    11 See Antony Anghie, Imperialism, Sovereignty and the Making of International Law (2004).

    12 See C. Wilfred Jenks, The Common Law of Mankind (1958).

    13 Simpson, Gerry, Writing the Tokyo Tribunal, in Beyond Victor’s Justice? The Tokyo War Crimes Trial Revisited 23, 27 (Tanaka, Yuki et al. eds., 2011)CrossRefGoogle Scholar.

    14 Id.

    15 Varadarajan, Latha, The trials of imperialism: Radhabinod Pal’s dissent at the Tokyo tribunal, 1 Eur. J. Int’l Rel. 8, 12 (2014)Google Scholar.

    16 Id. at 12-13.

    17 Judith N. Shklar, Legalism: An Essay on Law, Morals and Politics 162 (1964).

    18 See Pahuja, Sundhya, Laws of Encounter: A Jurisdictional Account of International Law, 1 London Rev. Int’l L. 63, 74–81 (2013)Google Scholar.

    19 See Dipesh Chakrabarty, Provincializing Europe: Postcolonial Thought and Historical Difference (2000).

    20 See Johannes Fabian, Time and the Other: How Anthropology Makes its Object (1983).

    21 Sundhya Pahuja identifies the international institutionalization of the temporalization of “colonial difference” as occurring in this historical moment. Pahuja, supra note 18, at 80-81.

    22 Varadarajan, supra note 15, at 15.

    23 Pal, Radhabinod, Renunciation of Force in Inter-State Relations, 16 India Q. 349, 349 (1960)CrossRefGoogle Scholar.

    24 Radhabinod Pal, The International Law in a Changing World, All India Reporter, 91, 103 (1961).

    25 Nandy, supra note 5, at 63; Pal, supra note 23, at 356.

    26 Pal, Radhabinod, Presidential Address: Universal Declaration of Human Rights, in Lectures on Universal Declaration of Human Rights 3, 21 (Pal, Radhabinod et al. eds., 1965)Google Scholar.

    27 PAL, supra note 10, at 119.

    28 This of course does not preclude the violent anti-imperial struggle previously discussed. Id. As Simpson has noted, Pal’s approach here served as a “partial inspiration” in the following decade or so for the third-world efforts in the UN to “dismantle” formal colonialism. Simpson, supra note 9, at 96.

    29 Pal, Radhabinod, Future Role of the International Law Commission in the Changing World, 9 UN Rev. 29, 43–44 (1962)Google Scholar.

    30 Nandy, supra note 5, at 62.

    31 For many this project was inaugurated amongst gathering waves of decolonization at the Bandung conference in 1955. For representative texts, see Asian States and the Development of Universal International Law (R.P. Anand ed., 1972).

    32 It should be kept in mind that very much in keeping with Pal’s vision, this aspired for future “international community” retained an openness to plurality, for as Pahuja has recently observed: “The role imagined for an inter-national law in this—Third—World is not to effect the transformation of the others in the name of an idealised version of one way of life, but to allow different peoples and nations, with different laws, to meet with dignity.” Pahuja, supra note 4.

    33 Pahuja, supra note 18, at 79.

    34 The certainty of the achievement of this fixed future also acted as a fixed foundation for the authority of these postcolonial states, steadily displacing a more restless authorization by way of democratic accountability with one grounded upon the overarching concern of delivering the promise of development. See Sundhya Pahuja, Decolonising International Law (2013).

    35 The point sought to be made here is not simply that there was no contradiction between the “Third World Projects’” strategy of challenging imperialism and embracing plurality in the “external” plane and pushing for homogeneity and erasure of plurality “domestically” as part of the developmentalist “nation-building project” but rather that these approaches became progressively connected and mediated by the discourse of state-led development. For the argument that they were not contradictory see Pahuja, supra note 4.