Pub Date : 2021-04-22DOI: 10.1093/oso/9780192898036.003.0011
Frédéric Mégret
This chapter reviews the complex contingency of international migration law. Freedom of movement was once the default position in international law, only to give way to a system that took it for granted that sovereignty entails the ability to restrict immigration. This startling transition is one that is largely forgotten and even at the time was hardly argued for, revealing an apparent case of ‘false necessity’ in which the law could seemingly have gone either way. In further prodding that transition, however, the chapter suggests that one should not fall into the trap of ‘false contingency’. The move to a concept of restrictive migration was, in fact, deeply conditioned by liberal international law’s obliviousness to its own imperial and racial biases. Understanding international law’s evolution requires us to understand how it absorbed imperial laws’ own experimentations with coerced and asymmetric mobility and the crumbling of Empires as spaces of imagined internal movement, notably as Southern bodies sought to move to the North. This can help us reexplore some of international law’s own earlier hesitations about transnational freedom of movement and develop an appreciation of how the flexibility of international legal discourse prepared the ground for exclusions to come. Reimagining the international law of migration would thus entail a radical reassessment of these imperial and racial biases.
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Pub Date : 2021-04-22DOI: 10.1093/oso/9780192898036.003.0030
Samuel Moyn
This volume has provided a potent reminder of the need for a cautious and intelligent embrace of contingency in explaining the past and framing hopes for the future of international law. The contingent, properly understood, is neither the utterly random nor the wholly determined. At its best, interest in contingency expresses a commitment to a theory of situated freedom: a desire to reach a proper sense of what options are available to us, neither conceding to the claims of unbending necessity nor pretending to an unbound and utopian sense of anarchic possibility that generally collapses into its opposite when it crashes into a recalcitrant world. The chapter closes with some thoughts about the scholarly uses of counterfactuality.
{"title":"From Situated Freedom to Plausible Worlds","authors":"Samuel Moyn","doi":"10.1093/oso/9780192898036.003.0030","DOIUrl":"https://doi.org/10.1093/oso/9780192898036.003.0030","url":null,"abstract":"This volume has provided a potent reminder of the need for a cautious and intelligent embrace of contingency in explaining the past and framing hopes for the future of international law. The contingent, properly understood, is neither the utterly random nor the wholly determined. At its best, interest in contingency expresses a commitment to a theory of situated freedom: a desire to reach a proper sense of what options are available to us, neither conceding to the claims of unbending necessity nor pretending to an unbound and utopian sense of anarchic possibility that generally collapses into its opposite when it crashes into a recalcitrant world. The chapter closes with some thoughts about the scholarly uses of counterfactuality.","PeriodicalId":342974,"journal":{"name":"Contingency in International Law","volume":"83 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":"126271547","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/9780192898036.003.0012
Christopher Szabla
No single international organisation oversees and enforces global migrant rights or plans and facilitates migrant movement. Migrant rights are fragmented among, inter alia, human rights and labour law. Why does no clear, comprehensive international regime exist to integrate migrant law and provide oversight for all migrants as international refugee law and institutions do for refugees? Scholars have cited a 1951 US decision to withdraw support for a migration regime that involved communist participation. But the Cold War explanation sidesteps, among other things, the creation of an intergovernmental migration regime outside the communist world. Both the refugee and migration regimes subsequently paralleled one another’s development, but architectural differences ultimately rendered one more robust. This chapter shows how decisions that shaped the differences between these regimes were not entirely determined by the Cold War, while demonstrating how decisions related to another overarching historical force—decolonisation—resulted in the expression of these differences.
{"title":"Contingent Movements?","authors":"Christopher Szabla","doi":"10.1093/oso/9780192898036.003.0012","DOIUrl":"https://doi.org/10.1093/oso/9780192898036.003.0012","url":null,"abstract":"No single international organisation oversees and enforces global migrant rights or plans and facilitates migrant movement. Migrant rights are fragmented among, inter alia, human rights and labour law. Why does no clear, comprehensive international regime exist to integrate migrant law and provide oversight for all migrants as international refugee law and institutions do for refugees? Scholars have cited a 1951 US decision to withdraw support for a migration regime that involved communist participation. But the Cold War explanation sidesteps, among other things, the creation of an intergovernmental migration regime outside the communist world. Both the refugee and migration regimes subsequently paralleled one another’s development, but architectural differences ultimately rendered one more robust. This chapter shows how decisions that shaped the differences between these regimes were not entirely determined by the Cold War, while demonstrating how decisions related to another overarching historical force—decolonisation—resulted in the expression of these differences.","PeriodicalId":342974,"journal":{"name":"Contingency in International Law","volume":"73 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":"130975568","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/9780192898036.003.0022
N. Mulder, B. Dijk
In the late twentieth century, the starvation of civilian populations as a method of warfare came to be prohibited in international law. Yet starvation is still commonly used today. In retrospect, what is striking about its international legal history is that the ban itself happened so late and appears still so incomplete. Why did depriving non-combatants of the essential means of sustenance not come to be seen much earlier as a cruel form of wartime behaviour that should be unambiguously outlawed? This chapter critically analyses the history of the anti-starvation norm and explains not only why some political agendas for starvation were frequently tolerated, but also why others failed to reach the stage of codification, and what this tells us about its past and future. Understanding how and why people starve, what role the use of blockade and international law play, and to what degree Schreibtischmörder might be held responsible for it, gets to the heart of questions of contingency and international law.
{"title":"Why Did Starvation Not Become the Paradigmatic War Crime in International Law?","authors":"N. Mulder, B. Dijk","doi":"10.1093/oso/9780192898036.003.0022","DOIUrl":"https://doi.org/10.1093/oso/9780192898036.003.0022","url":null,"abstract":"In the late twentieth century, the starvation of civilian populations as a method of warfare came to be prohibited in international law. Yet starvation is still commonly used today. In retrospect, what is striking about its international legal history is that the ban itself happened so late and appears still so incomplete. Why did depriving non-combatants of the essential means of sustenance not come to be seen much earlier as a cruel form of wartime behaviour that should be unambiguously outlawed? This chapter critically analyses the history of the anti-starvation norm and explains not only why some political agendas for starvation were frequently tolerated, but also why others failed to reach the stage of codification, and what this tells us about its past and future. Understanding how and why people starve, what role the use of blockade and international law play, and to what degree Schreibtischmörder might be held responsible for it, gets to the heart of questions of contingency and international law.","PeriodicalId":342974,"journal":{"name":"Contingency in International Law","volume":"75 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":"127217942","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/9780192898036.003.0008
Michele Tedeschini
As international criminal law lives through an endless crisis, some commentators cast doubt on its suitability to confront episodes of mass atrocity. This chapter addresses the question of international criminal law’s necessity from a historical perspective, revisiting a moment in which the whole enterprise seemed on the verge of collapsing: Duško Tadić’s 1995 challenge to the jurisdiction of the International Criminal Tribunal for the former Yugoslavia (ICTY). Following out Susan Marks’s famous appeal, the analysis attempts to read both contingency and necessity into the reasoning which led the ICTY Trial and Appeals chambers to dismiss said challenge. It then claims that the judges’ approach can be interpreted through the lens of Pierre Bourdieu’s notion of habitus, internalised history orienting individuals towards certain choices and away from others. But even when the behaviour of specific agents is at stake, using the habitus as an explanatory tool keeps redirecting towards questions of structure. Accordingly, it appears that in instances of groundless adjudication like the Tadić challenge, where international law is called to pronounce on the foundations of the very practices it supports, structure determines outcomes much more than human agency does. Yet, noting that any analytical concept is an authorial construct—including contingency and necessity, agency and structure—the chapter concludes by problematising its own findings, and by reminding scholars of the political responsibility intrinsic to historical inquiry.
{"title":"Historical Base and Legal Superstructure","authors":"Michele Tedeschini","doi":"10.1093/oso/9780192898036.003.0008","DOIUrl":"https://doi.org/10.1093/oso/9780192898036.003.0008","url":null,"abstract":"As international criminal law lives through an endless crisis, some commentators cast doubt on its suitability to confront episodes of mass atrocity. This chapter addresses the question of international criminal law’s necessity from a historical perspective, revisiting a moment in which the whole enterprise seemed on the verge of collapsing: Duško Tadić’s 1995 challenge to the jurisdiction of the International Criminal Tribunal for the former Yugoslavia (ICTY). Following out Susan Marks’s famous appeal, the analysis attempts to read both contingency and necessity into the reasoning which led the ICTY Trial and Appeals chambers to dismiss said challenge. It then claims that the judges’ approach can be interpreted through the lens of Pierre Bourdieu’s notion of habitus, internalised history orienting individuals towards certain choices and away from others. But even when the behaviour of specific agents is at stake, using the habitus as an explanatory tool keeps redirecting towards questions of structure. Accordingly, it appears that in instances of groundless adjudication like the Tadić challenge, where international law is called to pronounce on the foundations of the very practices it supports, structure determines outcomes much more than human agency does. Yet, noting that any analytical concept is an authorial construct—including contingency and necessity, agency and structure—the chapter concludes by problematising its own findings, and by reminding scholars of the political responsibility intrinsic to historical inquiry.","PeriodicalId":342974,"journal":{"name":"Contingency in International Law","volume":"8 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":"121529848","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 : 2020-01-31DOI: 10.1093/oso/9780192898036.003.0006
J. Nijman
This chapter explores the so-called ‘Turn to History’ in international legal scholarship. Interest in the intellectual history or ‘history of ideas’ of international law has surged around the last turn of the century. Nijman contextualises this development and stages three possible approaches of why and how to study ideas and theories of the past. A central proposition is that the field of ‘History and Theory of international Law’ ultimately aims to establish a dialogue between international legal thought then and now. In this way (and by employment of, eg, the Cambridge School method) a critical distance emerges with respect to our own international legal thinking and its underlying political and moral ideas. The meaning of international law ideas changes through time and use—in the study thereof lies the critical potential and value for our own thinking. As such, ‘doing history’ comes with what Quentin Skinner calls ‘an enlarged sense of possibility’. The chapter argues for a ‘doing history’ that liberates us from the hegemonic constraints that past thought and beliefs may place on our imagination. It builds on Roberto Mangabiera Unger’s image of ‘frozen politics’ and ‘false necessity’ to argue that change of our institutions is possible. In short, the chapter argues that doing history produces awareness of the contingency of received beliefs, values, and institutions, and as such produces a sense of possibility—and arguably—responsibility. It suggests/recognises a capacity to reimagine and act. It is transformative and empowers to establish (institutional) change and get our (global) act together. An empowerment we desperately need. The chapter ends by alluding at the change sought: Unger and Ricoeur are brought together in a brief argument for the reimagination of just institutions.
{"title":"An Enlarged Sense of Possibility for International Law","authors":"J. Nijman","doi":"10.1093/oso/9780192898036.003.0006","DOIUrl":"https://doi.org/10.1093/oso/9780192898036.003.0006","url":null,"abstract":"This chapter explores the so-called ‘Turn to History’ in international legal scholarship. Interest in the intellectual history or ‘history of ideas’ of international law has surged around the last turn of the century. Nijman contextualises this development and stages three possible approaches of why and how to study ideas and theories of the past. A central proposition is that the field of ‘History and Theory of international Law’ ultimately aims to establish a dialogue between international legal thought then and now. In this way (and by employment of, eg, the Cambridge School method) a critical distance emerges with respect to our own international legal thinking and its underlying political and moral ideas. The meaning of international law ideas changes through time and use—in the study thereof lies the critical potential and value for our own thinking. As such, ‘doing history’ comes with what Quentin Skinner calls ‘an enlarged sense of possibility’. The chapter argues for a ‘doing history’ that liberates us from the hegemonic constraints that past thought and beliefs may place on our imagination. It builds on Roberto Mangabiera Unger’s image of ‘frozen politics’ and ‘false necessity’ to argue that change of our institutions is possible. In short, the chapter argues that doing history produces awareness of the contingency of received beliefs, values, and institutions, and as such produces a sense of possibility—and arguably—responsibility. It suggests/recognises a capacity to reimagine and act. It is transformative and empowers to establish (institutional) change and get our (global) act together. An empowerment we desperately need. The chapter ends by alluding at the change sought: Unger and Ricoeur are brought together in a brief argument for the reimagination of just institutions.","PeriodicalId":342974,"journal":{"name":"Contingency in International Law","volume":"46 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-01-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121210228","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 : 2019-10-15DOI: 10.1093/oso/9780192898036.003.0025
J. Ostřanský
The doctrine of legitimate expectations (LEs) is now considered a backbone principle of international investment law (IIL), particularly of the fair and equitable treatment standard (FET). Open any recent textbook of IIL and you will find discussion on LEs as one of the core principles. However, if one takes a step back, one may see that the notion of legitimate expectations simply appeared in early investment cases ‘out of thin air’. This contribution will argue that, while LEs’ appearance in IIL practice may be viewed as contingent, its ascendance into the principal doctrine of substantive IIL with specific parameters is neither entirely accidental nor random. The use and specific parameters of the doctrine have been allowed and facilitated by both the indeterminate and semantically ambiguous legal form of IIL obligations, and by a specific historical context in which the notion became prominent. The consequence of the argument can be appreciated at two levels. First, it can be argued that even without the contingent ascendance of the notion of LEs, the field of IIL would likely have taken up a similar substantive trajectory. Second, this argument sheds light on questions about how a more substantial change in the regime might be effected, instead of merely reforming certain aspects of the regime without affecting its current premises, structure, substance, and teleology. By doing so, the contribution underlines the difficulties in articulating plausibly what would have made a difference in a particular legal regime.
{"title":"From a Fortuitous Transplant to a Fundamental Principle of Law?","authors":"J. Ostřanský","doi":"10.1093/oso/9780192898036.003.0025","DOIUrl":"https://doi.org/10.1093/oso/9780192898036.003.0025","url":null,"abstract":"The doctrine of legitimate expectations (LEs) is now considered a backbone principle of international investment law (IIL), particularly of the fair and equitable treatment standard (FET). Open any recent textbook of IIL and you will find discussion on LEs as one of the core principles. However, if one takes a step back, one may see that the notion of legitimate expectations simply appeared in early investment cases ‘out of thin air’. This contribution will argue that, while LEs’ appearance in IIL practice may be viewed as contingent, its ascendance into the principal doctrine of substantive IIL with specific parameters is neither entirely accidental nor random. The use and specific parameters of the doctrine have been allowed and facilitated by both the indeterminate and semantically ambiguous legal form of IIL obligations, and by a specific historical context in which the notion became prominent. The consequence of the argument can be appreciated at two levels. First, it can be argued that even without the contingent ascendance of the notion of LEs, the field of IIL would likely have taken up a similar substantive trajectory. Second, this argument sheds light on questions about how a more substantial change in the regime might be effected, instead of merely reforming certain aspects of the regime without affecting its current premises, structure, substance, and teleology. By doing so, the contribution underlines the difficulties in articulating plausibly what would have made a difference in a particular legal regime.","PeriodicalId":342974,"journal":{"name":"Contingency in International Law","volume":"23 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-10-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126339832","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}
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