Contingency in International Law

This book poses a question that is deceptive in its simplicity: could international law have been otherwise? Today, there is hardly a serious account left that would consider the path of international law to be necessary, and that would refute the possibility of a different law altogether. But behind every possibility of the past stands a reason why the law developed as it did. Only with a keen sense of why things turned out the way they did is it possible to argue about how the law could plausibly have turned out differently.
The search for contingency in international law is often motivated, as it is in this volume, by a refusal to resign to the present state of affairs. By recovering past possibilities, this volume aims to inform projects of transformative legal change for the future. The book situates that search for contingency theoretically and carries it into practice across many fields, with chapters discussing human rights and armed conflict, migrants and refugees, the sea and natural resources, foreign investments and trade. In doing so, it shows how politically charged questions about contingency have always been.

Ingo Venzke is Professor of International Law and Social Justice at the University of Amsterdam, and Director of the Amsterdam Centre for International Law. He has held visiting positions at various universities including the National University of Singapore and Jindal Global Law School. He was a Hauser Research Scholar at New York University as well as a visiting scholar at the Cegla Center for the Interdisciplinary Research of the Law (Tel Aviv University) and the Center for the Study of Law and Society (UC Berkeley). He received his PhD in Law from the Goethe University in Frankfurt while working as research fellow at the Max Planck Institute for International Law in Heidelberg. Since 2015, Ingo has been the Editor-in-Chief of the Leiden Journal of International Law (together with Eric de Brabandere).
Kevin Jon Heller is Professor of International Law and Security at the University of Copenhagen and Professor of Law at the Australian National University. He has previously held positions at the University of Amsterdam, SOAS, the University of Melbourne, the University of Auckland, and the University of Georgia. He received his PhD in Law from Leiden University and holds a JD with distinction from Stanford University. He is the author of The Nuremberg Military Tribunals and the Origins of International Criminal Law, and the co-editor of the Oxford Handbook of International Criminal Law and the Hidden Histories of War Crimes Trials, all published by Oxford University Press.

- I. INTRODUCTION - 1: Ingo Venzke: Contingency Situated - II. THEORISING AND NARRATING CONTIGENCY - A. Enacted Structures and Structured Actors - 2: Fleur Johns: On Dead Circuits and Non-Events - 3: Genevieve Painter: Contingency in International Legal History: Why Now? - 4: Umut Özsu: The Necessity of Contingency: Method and Marxism in International Law - 5: Justin Desautels-Stein: The Realist and the Visionary: Property, Sovereignty, and the Problem of Social Change - 6: Janne Nijman: An Enlarged Sense of Possibility for International Law: Seeking Change by Doing History - B. Situated Perspectives and Possibilities - 7: Filipe dos Reis: Contingencies in International Legal Histories: Origins and Observers - 8: Michele Tedeschini: Historical Base and Legal Superstructure: Reading Contingency and Necessity in the Tadic Challenge - 9: Mohsen al Attar: Subverting Eurocentric Epistemology: The Value of Nonsense When Designing Counterfactuals - 10: Geoff Gordon: The Time of Contingency in International Law - III. LOCATING AND RESISTING CONTINGENCY - A. Migrants and Refugees - 11: Frédéric Mégret: The Contingency of International Migration Law - 12: Christopher Szabla: Contingent Movements? Differential Decolonisations of International Refugee and Migration Law and Governance - B. Sea and Resources - 13: Alex Oude Elferink: What if the United Nations Convention on the Law of the Sea had Entered into Force Unamended: Business as Usual or Dystopia? - 14: Surabhi Ranganathan: What if Arvid Pardo had not made his famous speech? (False) Contingency in the Making of the Law of the Sea - 15: Lucas Lixinski and Mats Ingulstad: Contingent Economic Ordering: Permanent Sovereignty over Natural Resources and International Commodity Agreements - C. Human Rights - 16: Kathryn McNeilly: Rights for Daydreaming: International Human Rights Law Thought Otherwise - 17: Silvia Steininger and Jochen von Bernstorff: Who Turned Multinational Corporations into Bearers of Human Rights? On the Creation of Corporate 'Human' Rights in International Law - 18: Matthias Goldmann: Austerity: Why Human Rights Came Late and Helped Little - D. Armed Conflict - 19: Emma Stone Mackinnon: Contingencies of Context: Contested Legacies of the Algerian Revolution in the 1977 Additional Protocols to the Geneva Conventions - 20: Bianca Maganza: Unveiling Common Article 3 to the Geneva Conventions: Contingency, Necessity and Possibility in International Humanitarian Law - 21: Amanda Alexander: The Narrative Contingency of International Humanitarian Law: Crimes against Humanity in Cixin Liu's Post-Humanist Universe - 22: Nicholas Mulder and Boyd van Dijk: Why Did Starvation Not Become the Paradigmatic War Crime in International Law? - E. Foreign Investments - 23: Kathryn Greenman: The Law of State Responsibility and the Persistence of Investment Protection - 24: Saïda El Boudouhi: Barcelona Traction Re-Imagined: The ICJ as a World Court for Foreign Investment Cases? - 25: Josef Ostranský: From a Fortuitous Transplant to a Fundamental Principle of Law? The Doctrine of Legitimate Expectations and the Possibilities of a Different Law - F. The New International Economic Order - 26: Kevin Crow: Bandung's Fate - 27: Michelle Staggs Kelsall: 'Poisonous Flowers on the Dust-heap of a Dying Capitalism': The United Nations Code of Conduct on Transnational Corporations, Contingency and Failure in International Law - G. Eruptions - 28: Edward Kolla: Contravention and Creation of Law during the French Revolution - 29: Ana Delic: Contingencies in The Rise of European and Latin American Private International Law, 1850 to 1950 - IV. OUTLOOK - 30: Samuel Moyn: From Situated Freedom to Plausible Worlds