Pub Date : 2021-04-22DOI: 10.1093/oso/9780192898036.003.0023
K. Greenman
At the first international conference for the codification of international law, held in 1930 by the League of Nations, the law of state responsibility could have been different—and, in a sense, was different. A group of largely Latin American and former Austro-Hungarian states rejected rules which favoured foreign commercial interests over their political and economic self-determination, and had been used to justify intervention by the colonial powers. However, the change did not stick; today international investment law embeds economic relations that continue to subordinate the Global South. This chapter explores the idea that international law’s prioritisation of investment protection is something that, despite contingency, is more likely to persist than not. To understand how international law might have been or might be otherwise, it is essential to understand how certain potentialities have persistently prevailed, even in the face of resistance. This chapter introduces two possibilities: fragmentation and structural bias.
{"title":"The Law of State Responsibility and the Persistence of Investment Protection","authors":"K. Greenman","doi":"10.1093/oso/9780192898036.003.0023","DOIUrl":"https://doi.org/10.1093/oso/9780192898036.003.0023","url":null,"abstract":"At the first international conference for the codification of international law, held in 1930 by the League of Nations, the law of state responsibility could have been different—and, in a sense, was different. A group of largely Latin American and former Austro-Hungarian states rejected rules which favoured foreign commercial interests over their political and economic self-determination, and had been used to justify intervention by the colonial powers. However, the change did not stick; today international investment law embeds economic relations that continue to subordinate the Global South. This chapter explores the idea that international law’s prioritisation of investment protection is something that, despite contingency, is more likely to persist than not. To understand how international law might have been or might be otherwise, it is essential to understand how certain potentialities have persistently prevailed, even in the face of resistance. This chapter introduces two possibilities: fragmentation and structural bias.","PeriodicalId":342974,"journal":{"name":"Contingency in International Law","volume":"133 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-04-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122431534","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-04-22DOI: 10.1093/oso/9780192898036.003.0019
Emma Stone Mackinnon
This chapter considers the presence of anticolonial political thought in and as international law, and in particular the legacies of the Algerian Revolution for the Additional Protocols to the Geneva Conventions. The Additional Protocols extended to wars of national liberation the status of international armed conflicts, a move often explained as a straightforward product of context: an effort to expand the reach of humanitarian law to conflicts like those in Algeria and Vietnam. Returning to the legal arguments of the Algerian revolutionaries, however, reveals more complex arguments about what made the conflict international. Rather than straightforwardly nationalist, those arguments entailed robust conceptions of sovereignty, aggression, and the nature of decolonisation as a legal project. Tracing those arguments through the deliberations over the Additional Protocols, the chapter shows how, rather than simply reflecting its context, law operates as a site of historical meaning-making to adjudicate the past’s significance.
{"title":"Contingencies of Context","authors":"Emma Stone Mackinnon","doi":"10.1093/oso/9780192898036.003.0019","DOIUrl":"https://doi.org/10.1093/oso/9780192898036.003.0019","url":null,"abstract":"This chapter considers the presence of anticolonial political thought in and as international law, and in particular the legacies of the Algerian Revolution for the Additional Protocols to the Geneva Conventions. The Additional Protocols extended to wars of national liberation the status of international armed conflicts, a move often explained as a straightforward product of context: an effort to expand the reach of humanitarian law to conflicts like those in Algeria and Vietnam. Returning to the legal arguments of the Algerian revolutionaries, however, reveals more complex arguments about what made the conflict international. Rather than straightforwardly nationalist, those arguments entailed robust conceptions of sovereignty, aggression, and the nature of decolonisation as a legal project. Tracing those arguments through the deliberations over the Additional Protocols, the chapter shows how, rather than simply reflecting its context, law operates as a site of historical meaning-making to adjudicate the past’s significance.","PeriodicalId":342974,"journal":{"name":"Contingency in International Law","volume":"211 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-04-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123578680","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-04-22DOI: 10.1093/oso/9780192898036.003.0005
Justin Desautels-Stein
When we ask how the concept of sovereignty might become something other than what it has been, we must realise the structural context of the question. If we take liberal legalism as that context, we discover that the concept of sovereignty has a twin in the concept of property. To be sure, when we move beyond the deep grammars of the structure, important conceptual differences quickly emerge. Nevertheless, this chapter argues that if we are to take seriously our concerns with social change and transformation, and ask what concepts like sovereignty and property might become, we must first understand the deeper structural frames from which these concepts take their meaning. Reckoning with the possibilities of sovereign change and transformation is less like altering a small dialect, and more like transforming the syntactical range of an entire language.
{"title":"The Realist and the Visionary","authors":"Justin Desautels-Stein","doi":"10.1093/oso/9780192898036.003.0005","DOIUrl":"https://doi.org/10.1093/oso/9780192898036.003.0005","url":null,"abstract":"When we ask how the concept of sovereignty might become something other than what it has been, we must realise the structural context of the question. If we take liberal legalism as that context, we discover that the concept of sovereignty has a twin in the concept of property. To be sure, when we move beyond the deep grammars of the structure, important conceptual differences quickly emerge. Nevertheless, this chapter argues that if we are to take seriously our concerns with social change and transformation, and ask what concepts like sovereignty and property might become, we must first understand the deeper structural frames from which these concepts take their meaning. Reckoning with the possibilities of sovereign change and transformation is less like altering a small dialect, and more like transforming the syntactical range of an entire language.","PeriodicalId":342974,"journal":{"name":"Contingency in International Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-04-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125852064","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-04-22DOI: 10.1093/oso/9780192898036.003.0021
A. Alexander
This chapter will argue that international humanitarian law (IHL) is embedded in narratives that shape its history and meaning. Some international lawyers have argued that these narrative possibilities are necessarily constrained by a Western perspective that limits the potential of the law. Indeed, theories of narrative history consider that the possibilities of any narrative history are limited by prevailing tropes and can only relate a humanist story of ‘man’s’ encounter with the legal order. Nevertheless, alternative aesthetic and theoretical frameworks are beginning to emerge that could facilitate new ways of understanding IHL. Remembrance of Earth’s Past, a science fiction trilogy by Chinese writer Cixin Liu, provides an opportunity to explore a strikingly different vision of law, crimes against humanity, and the very notion of humanity. It suggests how narratives that draw on non-Western, non-anthropocentric ethics might underpin a distinct type of law.
{"title":"Narrative Contingency and International Humanitarian Law","authors":"A. Alexander","doi":"10.1093/oso/9780192898036.003.0021","DOIUrl":"https://doi.org/10.1093/oso/9780192898036.003.0021","url":null,"abstract":"This chapter will argue that international humanitarian law (IHL) is embedded in narratives that shape its history and meaning. Some international lawyers have argued that these narrative possibilities are necessarily constrained by a Western perspective that limits the potential of the law. Indeed, theories of narrative history consider that the possibilities of any narrative history are limited by prevailing tropes and can only relate a humanist story of ‘man’s’ encounter with the legal order. Nevertheless, alternative aesthetic and theoretical frameworks are beginning to emerge that could facilitate new ways of understanding IHL. Remembrance of Earth’s Past, a science fiction trilogy by Chinese writer Cixin Liu, provides an opportunity to explore a strikingly different vision of law, crimes against humanity, and the very notion of humanity. It suggests how narratives that draw on non-Western, non-anthropocentric ethics might underpin a distinct type of law.","PeriodicalId":342974,"journal":{"name":"Contingency in International Law","volume":"28 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-04-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127942521","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-04-22DOI: 10.1093/oso/9780192898036.003.0018
Matthias Goldmann
While human rights discourse became fundamental for challenging austerity in the aftermath of the Great Financial Crisis, in historical perspective, such a role of human rights represents the exception rather than the rule. Human rights discourse in the context of sovereign debt-induced austerity has varied enormously over time. Far from reflecting progress, its history reveals changing paradigms of human rights law. This chapter focuses on one of these paradigm shifts occurring at the turn from the 1970s to the 1980s. In the 1970s, newly independent states invoked human rights mostly to assert their sovereignty and avert international interference. This structural human rights paradigm abruptly disappeared from austerity debates in the 1980s, when the sovereign debt crisis hit the Global South, creating a need for multilateral liquidity assistance. Faced with pressure to reconsider the social impact of structural adjustment programmes, the International Monetary Fund shifted the terms of the debate from ‘human needs’, a human rights-related term, to ‘human capital’. Consequently, at the time when human rights rose to the status of the ‘last utopia’, they ceased to have relevance for austerity. Hence, whether human rights discourse promotes social ends depends on the particular context and time. The chapter ends by proposing a political paradigm of human rights law reflecting this insight.
{"title":"Contesting Austerity in the 1970s and 1980s","authors":"Matthias Goldmann","doi":"10.1093/oso/9780192898036.003.0018","DOIUrl":"https://doi.org/10.1093/oso/9780192898036.003.0018","url":null,"abstract":"While human rights discourse became fundamental for challenging austerity in the aftermath of the Great Financial Crisis, in historical perspective, such a role of human rights represents the exception rather than the rule. Human rights discourse in the context of sovereign debt-induced austerity has varied enormously over time. Far from reflecting progress, its history reveals changing paradigms of human rights law. This chapter focuses on one of these paradigm shifts occurring at the turn from the 1970s to the 1980s. In the 1970s, newly independent states invoked human rights mostly to assert their sovereignty and avert international interference. This structural human rights paradigm abruptly disappeared from austerity debates in the 1980s, when the sovereign debt crisis hit the Global South, creating a need for multilateral liquidity assistance. Faced with pressure to reconsider the social impact of structural adjustment programmes, the International Monetary Fund shifted the terms of the debate from ‘human needs’, a human rights-related term, to ‘human capital’. Consequently, at the time when human rights rose to the status of the ‘last utopia’, they ceased to have relevance for austerity. Hence, whether human rights discourse promotes social ends depends on the particular context and time. The chapter ends by proposing a political paradigm of human rights law reflecting this insight.","PeriodicalId":342974,"journal":{"name":"Contingency in International Law","volume":"29 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-04-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131806871","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-04-22DOI: 10.1093/oso/9780192898036.003.0007
F. dos Reis
This chapter reconstructs how contingency is situated in international legal histories. In particular, it focuses on how contingency relates to narratives of international law’s origin and progress. It explores, first, how traditional and recent international legal histories locate the origin of international law. Different authors—advancing different projects—situate international law within a range of different origins. In the end, the origin of international law is contingent. Moreover, it is possible for some authors, particularly those problematising international law’s Eurocentric origin, to conceptualise the link of contingency and origin not only as the contingency of origin but also in the form of a contingency as origin of international law, as international law originates from the confrontations, translations, encounters, and struggles of various actors. The chapter analyses, second, arguments about progress in international legal histories and argues that these arguments are tied to different conceptualisations of the observer, i.e. the international legal historian. Here, more traditional international legal histories often rely on an understanding of a non-contingent observer, who seeks to create an international legal order that is able to tame the contingencies of the international sphere. However, such narratives of international law’s linear progress have come under scrutiny recently as several interventions started to direct our attention to the multiple perspectives and multilinear trajectories in the making of the current international legal order or invite us to conceptualise the history of international law as a sequence of contingent disruptive events. The chapter concludes with a brief discussion of what it could mean to open international legal histories for different conceptualisations of origin and to give up the idea of a non-contingent observer inscribed in progressive narratives.
{"title":"Contingencies in International Legal Histories","authors":"F. dos Reis","doi":"10.1093/oso/9780192898036.003.0007","DOIUrl":"https://doi.org/10.1093/oso/9780192898036.003.0007","url":null,"abstract":"This chapter reconstructs how contingency is situated in international legal histories. In particular, it focuses on how contingency relates to narratives of international law’s origin and progress. It explores, first, how traditional and recent international legal histories locate the origin of international law. Different authors—advancing different projects—situate international law within a range of different origins. In the end, the origin of international law is contingent. Moreover, it is possible for some authors, particularly those problematising international law’s Eurocentric origin, to conceptualise the link of contingency and origin not only as the contingency of origin but also in the form of a contingency as origin of international law, as international law originates from the confrontations, translations, encounters, and struggles of various actors. The chapter analyses, second, arguments about progress in international legal histories and argues that these arguments are tied to different conceptualisations of the observer, i.e. the international legal historian. Here, more traditional international legal histories often rely on an understanding of a non-contingent observer, who seeks to create an international legal order that is able to tame the contingencies of the international sphere. However, such narratives of international law’s linear progress have come under scrutiny recently as several interventions started to direct our attention to the multiple perspectives and multilinear trajectories in the making of the current international legal order or invite us to conceptualise the history of international law as a sequence of contingent disruptive events. The chapter concludes with a brief discussion of what it could mean to open international legal histories for different conceptualisations of origin and to give up the idea of a non-contingent observer inscribed in progressive narratives.","PeriodicalId":342974,"journal":{"name":"Contingency in International Law","volume":"40 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-04-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122081179","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-04-22DOI: 10.1093/oso/9780192898036.003.0004
Umut Özsu
Of all the standard criticisms of Marxism, the claim that it is wedded to a mechanical and deterministic account of history is among the most pervasive. It is also among the least defensible. This chapter argues that Marxism affords an especially strong set of analytical tools for explaining the contingencies of international law. Romanticising the concept of contingency as illuminative of aporia or ruptures—moments of radical uncertainty utterly at odds with the broader social contexts in which they register—risks relegating the events under scrutiny to the status of mutually unrelated accidents, to be lauded or lambasted in isolation or loose association. By contrast, a Marxist analysis of international law, one that is alive to the co-constitutive relations between class power and juridical authority, provides an explanatory framework within which contingencies may be comprehended. My argument proceeds in two stages. I first revisit some of the ways in which Marx engaged directly with questions of law and rights. I then draw upon Nicos Poulantzas’ theory of the state to propose a new Marxist approach to international law. My contention is that the question of law under capitalism is closely related to the question of contingency under capitalism, that the Marxist tradition’s responses to both questions are considerably more nuanced than they have generally been made out to be, and that being a ‘Marxist’ requires commitment not to the view that all contingency is illusory but simply to the view that contingency (like agency) is socially conditioned.
{"title":"The Necessity of Contingency","authors":"Umut Özsu","doi":"10.1093/oso/9780192898036.003.0004","DOIUrl":"https://doi.org/10.1093/oso/9780192898036.003.0004","url":null,"abstract":"Of all the standard criticisms of Marxism, the claim that it is wedded to a mechanical and deterministic account of history is among the most pervasive. It is also among the least defensible. This chapter argues that Marxism affords an especially strong set of analytical tools for explaining the contingencies of international law. Romanticising the concept of contingency as illuminative of aporia or ruptures—moments of radical uncertainty utterly at odds with the broader social contexts in which they register—risks relegating the events under scrutiny to the status of mutually unrelated accidents, to be lauded or lambasted in isolation or loose association. By contrast, a Marxist analysis of international law, one that is alive to the co-constitutive relations between class power and juridical authority, provides an explanatory framework within which contingencies may be comprehended. My argument proceeds in two stages. I first revisit some of the ways in which Marx engaged directly with questions of law and rights. I then draw upon Nicos Poulantzas’ theory of the state to propose a new Marxist approach to international law. My contention is that the question of law under capitalism is closely related to the question of contingency under capitalism, that the Marxist tradition’s responses to both questions are considerably more nuanced than they have generally been made out to be, and that being a ‘Marxist’ requires commitment not to the view that all contingency is illusory but simply to the view that contingency (like agency) is socially conditioned.","PeriodicalId":342974,"journal":{"name":"Contingency in International Law","volume":"107 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-04-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122321178","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-04-22DOI: 10.1093/oso/9780192898036.003.0024
Saïda El Boudouhi
At a time where the future of investment law is often reinvented, this exercise of juris-fiction aims at exploring the relationship between the Barcelona Traction judgment and the course of foreign investment law to determine whether there was room for another evolution. Relying on a theoretical approach that combines normativism with legal realism in an original way, the study looks at different turning points in the course of foreign investment law in order to isolate those which appear as contingent, ie those which could have happened as they could have not happened. Such an enquiry leads to assessing the relative weight that the Barcelona Traction case has played in the remarkable expansion of investor-state dispute settlement. After a short introduction, section II introduces the methodology and used concepts. Section III looks at a few events in the history of foreign investment law in order to distinguish what was contingent and what was unavoidable while, at the same time, identifying what could be turning points. After having set the attention on the Barcelona Traction judgment as a contingent turning point among others, section IV further assesses the causality link between the judgment and foreign investment law through an exercise of imagination in which are considered not only the possible but also the likely effects of a different outcome to the case. By way of conclusion, section V suggests that the Barcelona Traction judgment itself, rather than foreign investment law, was, however, so tightly constrained that it could hardly have been different. It however highlights that the same cannot be said of the Diallo judgment, thus showing that contingency is often related to legal indeterminacy.
{"title":"Barcelona Traction Re-Imagined","authors":"Saïda El Boudouhi","doi":"10.1093/oso/9780192898036.003.0024","DOIUrl":"https://doi.org/10.1093/oso/9780192898036.003.0024","url":null,"abstract":"At a time where the future of investment law is often reinvented, this exercise of juris-fiction aims at exploring the relationship between the Barcelona Traction judgment and the course of foreign investment law to determine whether there was room for another evolution. Relying on a theoretical approach that combines normativism with legal realism in an original way, the study looks at different turning points in the course of foreign investment law in order to isolate those which appear as contingent, ie those which could have happened as they could have not happened. Such an enquiry leads to assessing the relative weight that the Barcelona Traction case has played in the remarkable expansion of investor-state dispute settlement. After a short introduction, section II introduces the methodology and used concepts. Section III looks at a few events in the history of foreign investment law in order to distinguish what was contingent and what was unavoidable while, at the same time, identifying what could be turning points. After having set the attention on the Barcelona Traction judgment as a contingent turning point among others, section IV further assesses the causality link between the judgment and foreign investment law through an exercise of imagination in which are considered not only the possible but also the likely effects of a different outcome to the case. By way of conclusion, section V suggests that the Barcelona Traction judgment itself, rather than foreign investment law, was, however, so tightly constrained that it could hardly have been different. It however highlights that the same cannot be said of the Diallo judgment, thus showing that contingency is often related to legal indeterminacy.","PeriodicalId":342974,"journal":{"name":"Contingency in International Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-04-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130286395","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-04-22DOI: 10.1093/oso/9780192898036.003.0010
G. Gordon
The normative affirmation that international law could have been otherwise upholds material commitments to an actually-existing distribution of goods, which international law supports. To make this clear, this chapter begins by sketching a larger context by which the contingency of international law can be made legible. The larger context here pertains to a Western humanist tradition, following which international law relies on contingency to sustain a humanist fantasy of a temporal economic actor. The humanist fantasy includes an emancipatory pretension to political pre-eminence that is inscribed in its temporality, but at odds with its material, economic underpinnings. The pretension to pre-eminence corresponds historically with an ascendant normative regime that has succeeded as an economic programme but continuously failed as an emancipatory one. The frustrated emancipatory project is a complementary counterpart to the successful economic one. The former persists not despite but on the basis of failure and contradiction: in the face of historical failure, international law always already contains within itself the normative solution; its past failures are proof of future successes, a source of assurance and self-affirmation. When political ideals fail, specific temporal logics entangled with international law enable an affirmation of the subject who maintains those failed ideals, for no other reason than persisting as the same idealistic subject in the same material system that produced the failure. As a result, international legal practice redirects energy for social objectives into subjective self-affirmation, leaving other forces at work for political purposes.
{"title":"The Time of Contingency in International Law","authors":"G. Gordon","doi":"10.1093/oso/9780192898036.003.0010","DOIUrl":"https://doi.org/10.1093/oso/9780192898036.003.0010","url":null,"abstract":"The normative affirmation that international law could have been otherwise upholds material commitments to an actually-existing distribution of goods, which international law supports. To make this clear, this chapter begins by sketching a larger context by which the contingency of international law can be made legible. The larger context here pertains to a Western humanist tradition, following which international law relies on contingency to sustain a humanist fantasy of a temporal economic actor. The humanist fantasy includes an emancipatory pretension to political pre-eminence that is inscribed in its temporality, but at odds with its material, economic underpinnings. The pretension to pre-eminence corresponds historically with an ascendant normative regime that has succeeded as an economic programme but continuously failed as an emancipatory one. The frustrated emancipatory project is a complementary counterpart to the successful economic one. The former persists not despite but on the basis of failure and contradiction: in the face of historical failure, international law always already contains within itself the normative solution; its past failures are proof of future successes, a source of assurance and self-affirmation. When political ideals fail, specific temporal logics entangled with international law enable an affirmation of the subject who maintains those failed ideals, for no other reason than persisting as the same idealistic subject in the same material system that produced the failure. As a result, international legal practice redirects energy for social objectives into subjective self-affirmation, leaving other forces at work for political purposes.","PeriodicalId":342974,"journal":{"name":"Contingency in International Law","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-04-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133921544","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-04-22DOI: 10.1093/oso/9780192898036.003.0026
Kevin L. Crow
This chapter argues that the 1955 Bandung Conference’s anticlimactic impact is most usefully understood in the present as inevitable, yet its normative surplus remains valuable. It describes a collection of conditions that manifest in what it terms ‘Bandung’s fate’: a narrow understanding of Bandung’s legal utility in its immediate present that was in many ways preordained. The chapter argues that pre-1955 discourses in the ‘First World’ created a place for Bandung in its immediate aftermath from which it could not escape, and it draws this understanding primarily from newspaper reporting from major outlets in the First World and contemporaneous reports from Indonesia’s National Archives that detail Indonesia’s understandings of First World perceptions of Bandung. After contrasting these with reports that detail perceptions from the ‘Third World’, the chapter suggests that for the nations that controlled international law, Bandung served preordained purposes that undermined its immediate impact. However, recent scholarship revisiting and revising the story of Bandung, along with renewed interest in what the failure of the NIEO can teach us in the present, indicates that the Conference created a ‘normative surplus’—an unveiling of acceptable norms at a particular point uncodified in law. In specifying elements of Bandung’s ‘normative surplus’ that could be revived, the chapter attempts to recast Bandung not as a story of possibilities lost but a catalyst for new possibilities in the present and future.
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