Adil Hasan Khan: Whither the Law of Nations?

Abstract:

Khan's paper, Whither the Law of Nations? Between Extraterritorial Capitulations and Political Law, is an examination of the fate of early modern law of nations in the 19^th century, long a preoccupation for many 'Southern’ international legal historians. The broad consensus in this literature is that a key deleterious effect of this displacement of the law of nations was a loss of legal status for non-European polities, which was only subsequently ‘recovered’ during the era of decolonization in the mid-20^th century, with the noted exception of indigenous peoples in settler colonies. 

However, this literature is also characterized by its inadequate attentiveness to the distinctions and relations between imperial and colonial projects, as well as the disciplinary habit of constructing public international law as the sole inheritor of the law of nations. This paper addresses both of these concerns while re-examining this classic question of ‘Southern’ international legal histories with an eye on ongoing treaty making exercises in settler colonies such as Australia and Canada. 

It does so by critically redescribing two distinct sites for this displacement. Namely, the treaties between the East India Company and different Mughal successor polities, and the capitulary treaties between European imperial powers and the Ottoman Empire. Both groups of agreements were subsequently associated with this aforementioned loss of status for non-European polities. However, to only emphasize this commonality is to miss the key distinctions between how these legal relations were sought to be remade in each of these sites of encounter. 

Thus, while in one case, the technique for bringing about this displacement was that of domestication, whereby these legal relations were sought to be extracted from the law of nations and placed within the sui generis domain of a newly developed imperial constitutional/administrative law (i.e. political law). In the other case internationalisation was the technique whereby Ottoman/European legal relations were sought to be transformed by asserting their determination by a novel, yet purportedly pre-existing, body of public international law. 

The paper argues that paying attention to the histories of these distinct, yet since variously entangled, techniques will allow us to better understand the contemporary legacies of colonialism and imperialism in law, as well as to better respond to how we might craft lawful relations through contemporary treaty making exercises in settler colonies.

Short Bio:

Dr. Adil Hasan Khan is a Senior Research Fellow with the Laureate Program on Global Corporations and International Law (LPGIL) at the Melbourne Law School, The University of Melbourne, Australia. His research interests lie at the intersections of history and jurisprudence, with a particular focus on legal education and legal administration in early modern and modern South Asia.