Pub Date : 2021-04-22DOI: 10.1093/oso/9780192898036.003.0015
Lucas Lixinski, Mats Ingulstad
This chapter queries the history of the principle of Permanent Sovereignty over Natural Resources (PSNR), often heralded as a watershed moment of the push to decolonise international law. It shows that the principle has a much longer and more complicated history that places this principle’s origins in Latin America in the interwar period. While predating the movement for decolonisation in Africa and Asia, many of the same aspirations existed in the Americas: the push to control economic development through natural resources; protection against (neo)imperial forces; and an aspiration for international (economic law) world-making. Our counterfactual is that pre-PSNR pivotal moments in international legal history, such as the 1933 London Monetary and Economic Conference, and the Bogotá Economic Agreement of the Organization of American States, had they come into force, would have precluded the need for PSNR in the form we know today, and achieved the same objectives, but as an integral part of economic legal architecture, rather than the exception to it that PSNR is. Posing this counterfactual helps us query contingency by revealing the strength of path dependencies in international law, and that the precise formulation of ideas is incidental to their context and what is achievable, while closing down the possibilities of what international law can be. Therefore, shedding light on the baselines we take for granted in international law-making through (alternative or revisionist) history allows us to rescue functional equivalence and the creative possibilities of the field.
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Pub Date : 2021-04-22DOI: 10.1093/oso/9780192898036.003.0020
Bianca Maganza
The chapter analyses the role that contingency played in the negotiation, adoption, and interpretation of Common Article 3 to the Geneva Conventions. It focuses in particular on the choice of including the Article in the Conventions, on the terminology that is used in the provision, and on the way in which the latter is currently interpreted. Through a study of the past contingencies that shaped the (hi)story of the provision, leading to the contingency of its contemporary interpretation, the chapter challenges the concept of non-international armed conflict as it is traditionally understood, proposing an exercise of self-reflexivity on the existence of different interpretive possibilities. Borrowing from both contextual and critical approaches to history, the analysis is informed by the two sibling frameworks of false necessity and false contingency, that are put in constant dialogue with each other. By adopting a two-tiered perspective, the ultimate aim of the analysis is to show that, with respect to a same issue, the necessity stemming from a given historical moment can turn into contingency when tested against the background of a different context.
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Pub Date : 2021-04-22DOI: 10.1093/oso/9780192898036.003.0003
G. Painter
Why are international legal scholars abandoning international law’s structuralism and searching for contingent pasts and plural futures? And why now? I use a revisionist history of the Haudenosaunee Confederacy’s claims at the League of Nations to explain the current preoccupation with the contingency-necessity debate. First, putting international law ‘in context’ yields more contexts and more contingency. This puts pressure on what counts as law, an issue of existential concern for international law. The controversy over contextualising and the contingency it exposes express anxiety about the differentiation of international law. Second, international law comes with its own theory of history. The debate shows scholars are repudiating international law’s own structuralist progress narrative. Third, the contingency-necessity debate is politics dressed as methodology. Necessity stories give international law a future to fight for, whereas contingency stories leave it rudderless. The controversy shows that we, scholars, do not know what to do about international law’s present or future. The heat shows we wish we did.
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Pub Date : 2021-04-22DOI: 10.1093/oso/9780192898036.003.0009
Mohsen al Attar
Third World Approaches to International Law (TWAIL) has a fundamental problem: its scholars don’t quite know how to relate to international law. This problem is constitutive of the theory, born as it was out of disillusionment with the failures of decolonisation and, of course, of international law. As a consequence, we find in TWAIL scholarship the juxtaposition of powerful critiques of international law alongside noisy calls for more international law. TWAIL’s aspirational projects are timid, constrained as they are by TWAIL’s overriding commitment to a legal regime its scholars bemoan. In this chapter, I propose to use counterfactuals to overcome the schizophrenia. I treat counterfactuals as a device that enables methodical explorations of alternative legal imaginaries. Contrary to Venzke, I propose exploring counterfactuals that are neither probable nor sensible within the current regime. For TWAIL, counterfactuals have value if they facilitate thinking beyond the rigidity of the status quo. And that’s the point: if TWAIL’s mission is to upend Eurocentric epistemology and practice, we must begin to imagine international law outside the parameters established by Europe.
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Pub Date : 2021-04-22DOI: 10.1093/oso/9780192898036.003.0014
S. Ranganathan
This chapter explores whether and what might have changed had one famous speech not been made. The speech in question was Arvid Pardo’s November 1967 address to the First Committee of the UN General Assembly. Through the lens of tracking Pardo’s contribution which is both over- and understated in the literature, the chapter discusses why in the 1960s and after, states, international lawyers, and even civil society organisations became and have remained invested in the unlikely project of deep seabed mining. By retrieving the contingencies of the moment in which the UN Convention on the Law of the Sea was drafted and its provisions and concepts given fixed associations, the chapter argues for radical readings that might be truer to that treaty’s constitutional promise.
本章探讨如果没有发表一篇著名的演讲，情况是否会发生变化，情况可能会发生什么变化。这是1967年11月阿维德·帕尔多在联合国大会第一委员会上的讲话。通过追踪Pardo在文献中被夸大和低估的贡献，本章讨论了为什么在20世纪60年代及之后，国家，国际律师，甚至民间社会组织开始并一直投资于深海海底采矿这个不太可能的项目。通过回顾《联合国海洋法公约》(UN Convention on the Law of the Sea)起草、其条款和概念被赋予固定关联的时刻的偶然性，本章提出了可能更符合该条约宪法承诺的激进解读。
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Pub Date : 2021-04-22DOI: 10.1093/oso/9780192898036.003.0028
E. Kolla
Moments of infraction of international law can generate new law. These can also be important examples of contingency in the history of international law, if the process occurs as an unintended consequence of actors’ aims. The French Revolution was just such an instance. The transmission of sovereignty from the person of the king to the collective populace of France was a central feature of the Revolution. Unplanned by revolutionaries, the principle of popular sovereignty bled into international law and became a new justification for claims to territory—a precept which, by the twentieth century, came to be called national self-determination. This chapter explores how the will of the people became a force in international law, inadvertently from the perspective of revolutionaries, as a result of changing public opinion, claims of jurisprudential and moral legitimacy, and military force.
{"title":"Contravention and Creation of Law during the French Revolution","authors":"E. Kolla","doi":"10.1093/oso/9780192898036.003.0028","DOIUrl":"https://doi.org/10.1093/oso/9780192898036.003.0028","url":null,"abstract":"Moments of infraction of international law can generate new law. These can also be important examples of contingency in the history of international law, if the process occurs as an unintended consequence of actors’ aims. The French Revolution was just such an instance. The transmission of sovereignty from the person of the king to the collective populace of France was a central feature of the Revolution. Unplanned by revolutionaries, the principle of popular sovereignty bled into international law and became a new justification for claims to territory—a precept which, by the twentieth century, came to be called national self-determination. This chapter explores how the will of the people became a force in international law, inadvertently from the perspective of revolutionaries, as a result of changing public opinion, claims of jurisprudential and moral legitimacy, and military force.","PeriodicalId":342974,"journal":{"name":"Contingency in International Law","volume":"93 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":"121120985","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/9780192898036.003.0029
Anamarija Delić
There were eight Latin American and European calls for the formation of multilateral private international law from the late nineteenth to the early twentieth century. These calls are the birth of the multilateral tradition of private international law. This chapter will examine the contingencies behind the successes and failures of these eight attempts for multilateral codification. Among those impactful contingencies making their mark on the private international legal histories of Europe and Latin America are voluntarism, political influence exerted by the convenor, the international relations between the convening, invited, or participatory nations, the drafting procedure and the level of private international legal harmonisation among national legal systems. Then there were more regionally specific contingencies such as a European cholera outbreak as opposed to colonial trauma and post-independence solidarity amongst Latin American nations. The central doctrinal debate in both the Latin American and European multilateral private international legal movements surrounded personal law, specifically, the clash between nationality and domicile. Doctrinal preferences, like multilateral movements, were littered with contingencies related to whether the nation in question was an immigrant or emigrant country, whether it had been the coloniser or the colonised in the recent historical past, and the impacts of the World Wars.
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Pub Date : 2021-04-22DOI: 10.1093/oso/9780192898036.003.0027
Michelle Staggs Kelsall
This chapter revisits the failure of negotiations for a United Nations Code of Conduct on Transnational Corporations—the final blow in the attempt to create a New International Economic Order to facilitate equitable resource distribution in the world economy in the final quarter of last century. The chapter invites us to consider failure in international law and to rethink the parameters through which law comes into being. Drawing on the archival record of the Code negotiations, the chapter details the battle between states’ representatives to agree provisions and reconsiders what disagreement meant in this context, and what this can tell us about the struggle to create international law at any moment. It argues that the proceedings shed light on a dissensus present in international law that is often overlooked and framed as consent. By revisiting these proceedings, readers are invited to consider the uncertain certainty provided by international law as both necessary and contingent: it allows the greatest space for state representatives to determine how international law will operate (contingency) yet it is precisely what enables international law to come into being as law (necessity). Pondering this uncertainty gives international lawyers pause for greater reflection on the possibilities contained within international law (and by extension, international lawyering) at any given moment in time.
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Pub Date : 2021-04-22DOI: 10.1093/oso/9780192898036.003.0001
I. Venzke
This introduction situates thinking about contingency on the field of what is possible, bounded by necessity, on one side, and chance on the other. It shows what makes the search for contingency in the course of international law so politically charged and so valuable—its link with human freedom. Expanding on the agenda behind the present volume, the chapter discusses how searching for contingency might facilitate change in the present for a different future. In contrast to other projects, asking about past possibilities offers an account for why something that may seem desirable has not materialised. Such an account must guide those on pathways of transformation in their sobering search for change. What would actually have made a difference in the course of international law, and what still can? Overall, the chapter highlights three sites of contingency: in the law’s contextualisation; the reading of its context; and the rendering of its history.
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Pub Date : 2021-04-22DOI: 10.1093/oso/9780192898036.003.0016
Kathryn McNeilly
Contingency and the counterfactual are often apprehended as tools to explore how international human rights law might have evolved differently, or have been ‘done better’ as a hopeful and emancipatory discourse. In this chapter, I remain with the theme of hope which pervades this subset of international law and undertake a counterfactual exploration of it. To do so, I ask the question ‘what if international human rights law, in its mainstream form as a discourse shaped by the United Nations, had been developed as a discourse for daydreaming?’ As rights for daydreaming, human rights would offer a vehicle to help us dream individually, but also collectively, of a future of hope which is better than the present, and to do so in a politically-engaged way. Exploring the history of international human rights law in the twentieth century, I locate one period where the futural and the political did collide, albeit not for long: in the work of states from the Global South during the 1960s–1970s. I consider the difference that might have been made had human rights successfully developed as rights for daydreaming in this period. This includes consequences for this area of law’s connection to grassroots social movements; development of its institutional processes and structures; and its compatibility with neoliberalism. Stemming from these changes, thinking international human rights otherwise in this way may have also had positive consequences for the position and potential of this international discourse today.
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