International lawyers in the aftermath of disasters: inheriting from Radhabinod Pal and Upendra Baxi

Abstract

In the present lives in the postcolony are beset by relentless disasters, generating great suffering and loss. How should an international lawyer conduct herself in response? Resisting the urge to construct these times as entirely unprecedented, this article attempts a response by drawing out the conduct of two ancestral Third World international lawyers responding to disasters in their own time. It reveals how disasters never simply occur but are actively produced by particular modes of conduct deployed by international lawyers. From their conduct we learn how to attend to the tasks of justice and responsibility in the aftermath of disaster by being responsive to the suffering and by recognising the disastrous effects of our action. We also learn how attending to the tasks of inheritance is vital for this.

Keywords:

• Inheritance
• disasters
• conduct
• suffering
• responsibility
• frames

Acknowledgments

The writing and fashioning of this piece has naturally not been an isolated exercise and I would like to acknowledge the guidance, conversations and discerning and supporting relations with a community of others who have made it possible. In particular, I would like to acknowledge Prof Upendra Baxi, Prof Sundhya Pahuja, Prof Shaun McVeigh, Julia Dehm, Usha Natarajan, Sujith Xavier, John Reynolds, Sara Dehm, Diego Silva and David Jenkins.

Notes

1. Marks, “International Law in Disastrous Times,” 325.

2. My usage of the concept of ‘liveable life’ throughout this article draws upon the recent work of the philosopher Judith Butler. Butler, “Rethinking Vulnerability and Resistance.”

3. Klein, The Shock Doctrine.

4. On my use of the terminology of ‘office’ and ‘conduct’, see Genovese, “On Australian Feminist Tradition.”

5. For a more general account of this model, see Klein, The Shock Doctrine, 3–23.

6. For an excellent account of this model, see Charlesworth, “International Law.”

7. Okafor, “Newness, Imperialism and International Legal Reform.”

8. Mickelson, “Rhetoric and Rage”; Anghie, “C. G. Weeramantry”; Chimni, “The Self, Modern Civilization, and International Law”, 1160; and Chimni, “Retrieving ‘Other’ Visions.”

9. Hill, “Reason and Lovelessness,” 357–407.

10. Pal, Crimes in International Relations.

11. See Baxi, “The Bhopal Victims,” iv–v.

12. Fortun, Advocacy after Bhopal, xiii–xxi.

13. The chemical plant in which gas leakage occurred during the early hours of 3 December 1984, resulting in the deaths of roughly 20,000 people, mostly inhabitants of densely populated and marginalised neighbourhoods in the heart of the city where it had been set-up, had been engaged in the manufacture of a chemical pesticide that was being promoted as an essential input to improve the productivity of an industrialising agricultural sector. Rajagopal, “And the Poor get Gassed”; and Fortun, Advocacy after Bhopal.

14. Baxi, “The Bhopal Victims.” See also Nixon, Slow Violence, 45–67.

15. In 1999 he delivered the Hague Lectures in Private International Law on the topic of the liability of MNCs for mass disasters. Baxi, Mass Torts, 316.

16. Nixon, Slow Violence; and Scott, Omens of Adversity.

17. Butler, Frames of War, 24.

18. Nixon, Slow Violence.

19. Baxi, “Book Review,” 125.

20. For the distinction between ‘spectacular and instantaneous violence’ and ‘slow violence’, see Nixon, Slow Violence, 200.

21. Charlesworth, “International Law,” 384, 386. In another section of her article, which deploys the terminology of ‘crises’ much in the same way as I seek to deploy ‘disaster’, Charlesworth observes of international lawyers: ‘we are preoccupied with great crises, rather than the politics of everyday life. In this way international law steers clear of analysis of longer-term trends and structural problems.’ Ibid., 389.

22. . Davis, “Los Angeles after the Storm.”

23. This assertion was made by the then UCC CEO, Robert Kennedy, in an interview conducted in 1990. Reisch, “Carbide’s Kennedy,” 9.

24. Butler, Frames of War.

25. Grear, “Vulnerability.”

26. Butler, “Rethinking Vulnerability and Resistance.”

27. Grear, “Vulnerability.”

28. This staging of temporal progress by the majority thus re-enacted the ur-myth of Euro-American modernity, ie the overcoming of endless cycles of violence premised upon the logic of vengeance and revenge, and its triumphant banishing to the past by way of the constitution of a new political order premised upon ‘impartial’ third-party adjudication of conflicts under an objective, written and general law, thereby achieving justice and freedom. Pertinently this maturation process necessarily demands a certain degree of forgetting or letting go of the past on the part of subjects, especially in terms of injuries and wrongs suffered, from which the subject gains distance, as the right to punish is surrendered to the newly emergent ‘sovereign’ political order. The subject learns to ‘let go’ in a process whereby reactive passions give way to greater degrees of self-control and self-limitation. For a useful recent restatement, see Ricoeur, “Justice and Vengeance,” 223–231.

29. Baxi, ‘Voices of Suffering.”

30. Fanning, “The Firebombing of Tokyo”; and Fortun, Advocacy after Bhopal. I return to and further develop this mode of authorisation of action in the next section.

31. This model of justice could be said to work on what Butler has identified as the logic of security. Butler, Precarious Life.

32. In the next section I will attempt to show how Baxi’s conduct with regard to the problem of causation also orientates itself to perceive the operations of this powerful dynamic.

33. Butler, Frames of War.

34. To further draw upon Butler’s work, these struggles are over the globally ‘differential distribution of precarity’ and the liveability of certain lives. Butler, Frames of War, 25.

35. Varadarajan, “The Trials of Imperialism,” 794–795.

36. In doing so, Pal powerfully establishes a connection between the practice of ‘colonial domination’ and international criminality. See Simpson, Law, War & Crime, 96.

37. Pal, Crimes in International Relations. See also Varadarajan, “The Trials of Imperialism,” 804–807.

38. Baxi, “TLSI Distinguished Lecture.”

39. Baxi, “The Bhopal Victims.”

40. Baxi, “TLSI Distinguished Lecture.” See also Baxi, “Writing about Impunity.”

41. Baxi, Memory and Rightlessnes, 12.

42. See Derrida, The Work of Mourning; and Butler, Precarious Life.

43. Here we can adduce several examples of Baxi’s ‘work of mourning’. Baxi, “Globalization”; Baxi, “The (Im)possibility of Constitutional Justice”; Baxi, Memory and Rightlessness; and Baxi, “Constitutional Utopias.” In Pal’s case, apart from his Tokyo dissent, I find his invocation of the Sanskrit term ‘ciradukhini’ (ongoing mourner or griever) to describe the colonised nation as also being suggestive of this openness to lamentation on his part. Nandy, “The Other Within,” 55.

44. Baxi, Memory and Rightlessness, 12–13 (emphasis in the original).

45. At the time this leading figure associated with the Anglo-American sociological school of law had recently, to great acclaim, delivered The Hague Lecture in Public International Law. Stone, “Problems Confronting Sociological Enquiries.”

46. Stone, Aggression and World, 143 (emphasis in the original).

47. In terms of temporal transmissions one could note with Baxi that DOW Chemicals, which in 2001 acquired control over the interests of UCC, while assuming the assets and some of its liabilities as ‘successor-in-interest’, has consistently sought to evade and disavow its inherited responsibilities for the ‘Bhopal catastrophe’. Baxi, “Writing about Impunity,” 35. This can be connected and compared with the catastrophic aftermaths of Bhopal, both in terms of the health and well-being of subsequent ‘wounded generations’ born in the vicinity and also in terms of the termination of generational succession as a result of serious birth complications and disorders emerging among survivors. Mukherjee, Surviving Bhopal, 7.

48. An illuminating exposition of the consequences of this distinction has been developed by Veena Das, “Suffering, Legitimacy and Healing,” 137–175.

49. Baxi, “Introduction,” viii (emphasis added).

50. Baxi, The Future of Human Rights.

51. Baxi, Memory and Rightlessness, 9.

52. Baxi, “TLSI Distinguished Lecture.”

53. Hanna, “Bhopal.” It is in such a light that I would suggest we can make sense of Pal’s statement in his judgment, which perceived in the aftermath of the dropping of the nuclear bombs the arising of a feeling in ‘humanity’: ‘we are a unity of humanity, linked by our fellow human beings, irrespective of race, creed, or colour, by bonds which have been fused unbreakably in the diabolical heat of the explosion’. Hill, “Reason and Lovelessness,” 368.

54. Reproduced in Fortun, Advocacy after Bhopal, 93.

55. Inheriting this training has in many ways been a central preoccupation for the contemporary generation of TWAILers. See Chimni, “Third World Approaches to International Law”; and Pahuja, “Laws of Encounter.”

56. Cassese, Five Masters of International Law.

57. The question of responsibility and reckoning in this register of what has been recently described as the ‘ethical turn’ is projected upon, and confined to, rogue individuals or regimes. See Simpson, Law, War & Crime, 54–78. See also Nesiah, “The Trials of History,” 127–163.

58. Simpson, Law, War and Crime.

59. Marks, “International Law in Disastrous Times,” 325.

60. Anderson, cited in Fortun, Advocacy after Bhopal (emphasis added).

61. Fortun, Advocacy after Bhopal, 98.

62. Orford, International Authority; and Pahuja, “Global Poverty.”

63. On the pertinent distinction between ‘misfortune’ and ‘injustice’, drawing upon the distinction between the merely episodic and the systemic, see Baxi, Memory and Rightlessness, 19–23.

64. Baxi, Mass Torts, 421 (emphasis in the original).

65. Baxi, Mass Torts, 403–423. See also Beck, Risk Society.

66. As Fortun observes, the legal response to Bhopal itself was: ‘an important precedent for determining how the risks and rewards of globalization would be distributed’. Fortun, Advocacy after Bhopal, 54.

67. This orientation on his part has not been limited to the ‘Bhopal catastrophe’ but has extended to other so-called ‘misfortunes’ or ‘disasters’ generating suffering. See Baxi, “Introduction,” vi.

68. Baxi, Mass Torts.

69. This insight stands reconfirmed in the more recent scholarship of Neil Smith on global disasters, in which he shows with numerous examples how it is the impoverished who bear the inordinate brunt of the injuries generated by disasters. Smith, “Disastrous Accumulation,” 782–784.

70. Smith, “Disastrous Accumulation”; and Klein, The Shock Doctrine.

71. As he puts it, ‘impoverishment is a dynamic process of public decision-making in which it is considered just, right and fair that some people become or stay impoverished…In other words, impoverishment is a matter of conscious planning by those who are not impoverished. Both the state policies and our innumerable daily actions decide who, how many, to what extent, for how long, and with what cost shall become or remain impoverished’ (emphasis added). Baxi, “Introduction”, vi–vii. See also Baxi, “Book Review,” 118–121.

72. Baxi, Mass Torts.

73. Baxi, “Violence, Constitututionalism and Struggle,” 18.

74. Baxi, “Justice Deferred,” 2.

75. Baxi, “Book Review,” 117. See also Baxi, “Liberty, Equality and Justice,” 18–21; Baxi, Mass Torts; and Baxi, “Writing about Immunity,” 40–41.

76. Baxi, The Future of Human Rights.

77. See Baxi, “The Uncanny Idea of Development”, 76–123.

78. For instance, in a particularly odious editorial published in the Wall Street Journal less than a week after the Bhopal catastrophe, it was opined that: ‘economic progress is not without its risks. The saving grace is that the benefits outweigh the costs. As a Georgia Tech doctor told the New York Times, “Of those people killed, half would not have been alive today if it weren’t for that plant and the modern health standards made possible by the wide use of pesticides”…Simple observation shows that life is better for today’s middle class Indian than it was for 19th century rajahs.’ Reproduced in Ranjan, ‘Disaster, Development and Governance,’ 375. See also Baxi, “International Development, Global Impoverishment,” 609–610.

79. For a powerful exposition (and critique) of this mode of authorisation, which assumes responsibility for rescue but not for causation, see Baxi, “The ‘War on Terror’,” 15–16.

80. Thus the UCC plant itself formed part of a series of techno-scientific measures taken in postcolonial India, the so-called ‘Green Revolution’, that were all in a significant way authorised by invoking particular constructions of the Bengal famine, as well as a purported famine in Bihar in 1966–67. See Cullather, “The Meaning of Famine”, 205–231; Gupta, Postcolonial Developments, 58. That the ‘Bengal famine’ itself was very much socially produced and not a result of some ‘natural’ shortage was of course famously shown by Sen, Poverty and Famines, in his now classic book. For a recent work which explores how the war efforts of the British colonial regime played a major role in producing this disaster, one which occurred amid years of over-production, see Mukherjee, Hungry Bengal. For the argument that the ‘Green Revolution’ displaced a more progressive politics of distribution with one that furthered distribution upwards, from small landowning peasants and the rural landless to the large landowners, and that this was elided by way of an ideology of growth or production, see Patel, “The Long Green Revolution.” For an early prescient account of this “immiseration of the impoverished” see Baxi, “Introduction”, xx-xxii.

81. Nandy, “The Other Within,” 49.

82. Hill, “Reason and Lovelessness,” 369–376.

83. Nandy, “The Other Within,” 49.

84. Nandy, “The Other Within,” 65–66.

85. Baxi, “Constitutional Utopias,” 22; Baxi, “What May the Third World Expect?”, 722; and Nandy, “The Other Within,” 57.

86. Baxi, “Book Review,” 117, . See also Baxi, Mass Torts, 423; Baxi, “Voices of Suffering”; Baxi, “Taking Suffering Seriously”; Pal, “Presidential Address”; and Nandy, “The Other Within,” 49.

87. It is exactly this receptiveness that I see Baxi calling forth (and practising) in his exhortation to us to ‘listen to the power of lamentation of the millennial losers’. Baxi, “The Colonialist Heritage,” 75.