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Contingency in International Law
 Contingency
in International Law
On the Possibility of Different Legal Histories
Edited by
I N G O V E N Z K E A N D K EV I N J O N H E L L E R

1
 3
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United Kingdom
Oxford University Press is a department of the University of Oxford.
It furthers the University’s objective of excellence in research, scholarship,
and education by publishing worldwide. Oxford is a registered trade mark of
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© The Several Contributors 2021
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First Edition published in 2021
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Published in the United States of America by Oxford University Press
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For NCV and ST
GD and BD
 Acknowledgements

The present volume builds on the conference ‘Contingency in the Course of International
Law: How International Law Could Have Been’, which we held in Amsterdam in the summer
of 2018 under the auspices of the Amsterdam Center for International Law (ACIL). It was
a sparkling event exceeding our expectations in substance and form; in the depth of the
­exchange; in open curiosity and intellectual rigour; and in sheer interest and numbers.
We invited a few colleagues to the conference but wanted to seek out unfamiliar voices.
About 140 scholars replied to our Call for Papers, and 60 presenters filled the conference.
Fleur Johns opened the proceedings and Sam Moyn closed them. Both gave memorable
keynote lectures that now, in revised versions, frame the present volume. We are truly
grateful to all of the presenters and conference-​participants for their engaged contributions
and spirited exchanges, and to the contributors to the volume for their continued commit-
ment, ongoing debate, and regular input.
Neither this volume nor the conference would have been possible without the financial
and logistical support we received from ACIL and the Amsterdam Law School. Several col-
leagues were of particular assistance in bringing the conference to fruition, including ACIL’s
administrative assistants Yvonne ter Horst and Kaan Özdurak, as well as the helping hands
of Teresa Cabrita, Corina Heri, Jackson Oldfield, and Wim Zimmermann. Kathryn Skinner
was a superb student assistant during that time.
The volume would not have obtained its present shape had it not been for Bianca Dillon’s
outstanding support in finalising it. She closely read and edited every chapter with excep-
tional diligence and dedication. We are further grateful to Brittany Feldman, who took over
from Kathryn as a student assistant to work on the volume.
We wish to thank Merel Alstein from OUP, who attended the conference in 2018, for her
kind support for the project from its beginning. And we are grateful to Jack McNichol for
steering the volume towards production.
With deep gratitude to our interlocutors and all who have helped.

Ingo Venzke and Kevin Jon Heller

Amsterdam and Copenhagen, October 2020
 Table of Contents

List of Contributors  xiii

List of Abbreviations  xv

I. INTRODUCTION
1. Situating Contingency in the Path of International Law  3
Ingo Venzke

I I . T H E O R I SI N G & NA R R AT I N G C O N T I N G E N C Y

A . E NAC T E D S T RU C T U R E S & S T RU C T U R E D AC T O R S

2. On Dead Circuits and Non-​events  25

Fleur Johns
3. Contingency in International Legal History: Why Now?  44
Genevieve Renard Painter
4. The Necessity of Contingency: Method and Marxism in International Law  60
Umut Özsu
5. The Realist and the Visionary: Property, Sovereignty, and the Problem
of Social Change  77
Justin Desautels-​Stein
6. An Enlarged Sense of Possibility for International Law: Seeking Change by
Doing History  92
Janne E Nijman

B. SI T UAT E D P E R SP E C T I V E S & P O S SI B I L I T I E S

7. Contingencies in International Legal Histories: Origins and Observers  111

Filipe dos Reis
8. Historical Base and Legal Superstructure: Reading Contingency and Necessity
in the Tadić Challenge  129
Michele Tedeschini
9. Subverting Eurocentric Epistemology: The Value of Nonsense
When Designing Counterfactuals  145
Mohsen al Attar
x Table of Contents
10. The Time of Contingency in International Law  162
Geoff Gordon

I I I . L O C AT I N G & R E SI S T I N G C O N T I N G E N C Y

A . M IG R A N T S & R E F U G E E S

11. The Contingency of International Migration Law: ‘Freedom of Movement’,

Race, and Imperial Legacies  179
Frédéric Mégret
12. Contingent Movements? The Differential Decolonisations of International
Refugee and Migration Law and Governance  199
Christopher Szabla

B. SE A & R E S O U R C E S

13. What If the United Nations Convention on the Law of the Sea had Entered
into Force Unamended: Business as Usual or Dystopia?  215
Alex Oude Elferink
14. What If Arvid Pardo Had Not Made his Famous Speech? (False)
Contingency in the Making of the Law of the Sea  231
Surabhi Ranganathan
15. Contingent Economic Legal Ordering: Permanent Sovereignty over
Natural Resources and International Commodity Agreements  246
Lucas Lixinski and Mats Ingulstad

C . H UM A N R IG H T S

16. Rights for Daydreaming: International Human Rights Law Thought

Otherwise  267
Kathryn McNeilly
17. Who Turned Multinational Corporations into Bearers of Human Rights?
On the Creation of Corporate ‘Human’ Rights in International Law  281
Silvia Steininger and Jochen von Bernstorff
18. Contesting Austerity in the 1970s and 1980s: When Human Rights Went
Missing  297
Matthias Goldmann

D. A R M E D C O N F L IC T

19. Contingencies of Context: Legacies of the Algerian Revolution in the

1977 Additional Protocols to the Geneva Conventions  319
Emma Stone Mackinnon
 Table of Contents xi
20. Unveiling Common Article 3 to the Geneva Conventions: Contingency,
Necessity, and Possibility in International Humanitarian Law  338
Bianca Maganza
21. Narrative Contingency and International Humanitarian Law:
Crimes against Humanity in Cixin Liu’s Post-​Humanist Universe  351
Amanda Alexander
22. Why Did Starvation Not Become the Paradigmatic War Crime in
International Law?  370
Nicholas Mulder and Boyd van Dijk

E . F O R E IG N I N V E ST M E N T S

23. The Law of State Responsibility and the Persistence of

Investment Protection  391
Kathryn Greenman
24. Barcelona Traction Re-​Imagined: The ICJ as a World Court for Foreign
Investment Cases?  406
Saïda El Boudouhi
25. From a Fortuitous Transplant to a Fundamental Principle of Law? The
Doctrine of Legitimate Expectations and the Possibilities of
a Different Law  426
Josef Ostřanský

F. T H E N EW I N T E R NAT IO NA L E C O N OM IC O R D E R

26. Bandung’s Fate  443

Kevin Crow
27. ‘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  463
Michelle Staggs Kelsall

G . E RU P T IO N S

28. Contravention and Creation of Law during the French Revolution  481
Edward Kolla
29. Contingencies in the Rise of European and Latin American Private
International Law, 1850 to 1950  496
Ana Delic

I V. O U T L O O K

30. From Situated Freedom to Plausible Worlds  517

Samuel Moyn

Index 527
 List of Contributors

Mohsen al Attar, Dean of the Faculty of Law, University of the West Indies; Associate Professor,
University of Warwick

Amanda Alexander, Lecturer, Australian Catholic University

Jochen von Bernstorff, Professor, University of Tübingen

Kevin Crow, Assistant Professor of International Law and Ethics, Asia School of Business;
International Faculty Fellow, MIT

Ana Delic, PhD Researcher, Tilburg University

Justin Desautels-​Stein, Associate Professor, University of Colorado

Filipe dos Reis, Assistant Professor, University of Groningen

Saïda El Boudouhi, Professor of Law, Université Polytechnique Hauts-​de-​France (Valenciennes)

Matthias Goldmann, Junior Professor, Goethe University Frankfurt; Senior Research Fellow, Max
Planck Institute for Comparative Public Law and International Law

Geoff Gordon, Senior Researcher, T.M.C. Asser Instituut

Kathryn Greenman, Lecturer, University of Technology Sydney

Kevin Jon Heller, Professor of International Law and Security, Centre for Military Studies, University
of Copenhagen; Professor of Law, Australian National University

Mats Ingulstad, Researcher, Norwegian University of Science and Technology

Fleur Johns, Professor, University of New South Wales

Michelle Staggs Kelsall, Lecturer, SOAS University of London

Edward Kolla, Associate Professor, Georgetown University

Lucas Lixinski, Associate Professor, University of New South Wales

Emma Stone Mackinnon, Lecturer, University of Cambridge

Bianca Maganza, PhD Candidate, Graduate Institute of International Development Studies (Geneva)

Kathryn McNeilly, Senior Lecturer, Queen’s University Belfast

Frédéric Mégret, Professor, McGill University

Samuel Moyn, Professor, Yale University

Nicholas Mulder, Assistant Professor of Modern European History, Cornell University

Janne E Nijman, Professor, University of Amsterdam and the Graduate Institute of International
Development Studies (Geneva); Academic Director, T.M.C. Asser Instituut

Josef Ostřanský, Visiting Fellow, Australian National University; Associate Researcher, Geneva
Center for International Dispute Settlement
xiv List of Contributors
Alex Oude Elferink, Netherlands Institute for the Law of the Sea (NILOS); Utrecht Centre for Oceans,
Water and Sustainability Law, Utrecht University

Umut Özsu, Associate Professor, Carleton University

Genevieve Renard Painter, Assistant Professor, Concordia University

Surabhi Ranganathan, University Senior Lecturer, King’s College, University of Cambridge

Silvia Steininger, Research Fellow, Max Planck Institute for Comparative Public Law and
International Law

Christopher Szabla, Global Academic Fellow, University of Hong Kong

Michele Tedeschini, Research Fellow, Centre for Global Cooperation Research, Universität
Duisburg-​Essen

Boyd van Dijk, McKenzie Fellow, University of Melbourne

Ingo Venzke, Professor, University of Amsterdam; Director, Amsterdam Center for International
Law (ACIL)
 List of Abbreviations

AIIL American Institute of International Law

API Additional Protocol I
APIII Additional Protocol to the Geneva Conventions
ARSIWA 2001 Draft Articles on the Responsibility of States for Internationally Wrongful Acts
ASEAN Association of Southeast Asian Nations
BBNJ Biodiversity Beyond National Jurisdiction
BIPM Bureau International des Poids et Mesures
BIT Bilateral Investment Treaty
CA3 Common Article 3
CBD Convention on Biological Diversity
CILT Critical International Legal Theory
CIPEC Intergovernmental Council of Copper Exporting Countries
CLCS Commission on the Limits of the Continental Shelf
CLH Critical Legal History
CLS Critical Legal Studies
CSOP Commission to Study the Organisation of Peace
DSU Dispute Settlement Understanding
ECHR European Convention on Human Rights
ECOSOC United Nations Economic and Social Council
ECT Energy Charter Treaty
ECtHR European Court of Human Rights
ESC rights Economic, Social and Cultural rights
EU European Union
FAO Food and Agriculture Organization of the United Nations
FET Fair and Equitable Treatment
FLN Front de Libération Nationale
GA United Nations General Assembly
GATT General Agreement on Tariffs and Trade
GCs Geneva Conventions of 1949
HCCH Hague Conference for Private International Law
IACtHR Inter-​American Court of Human Rights
IBA International Bauxite Association
ICA International Commodity Agreement
ICCPR International Covenant on Civil and Political Rights
ICEM Intergovernmental Committee for European Migration
ICESCR International Covenant on Economic, Social and Cultural Rights
ICJ International Court of Justice
ICL International Criminal Law
ICRC International Committee of the Red Cross
ICSID International Centre for Settlement of Investment Disputes
ICTY International Criminal Tribunal for the Former Yugoslavia
IDI Institut de Droit International
IFI International Financial Institution
xvi List of Abbreviations
IHL International Humanitarian Law
IIL International Investment Law
ILC International Law Commission
ILO International Labour Organization
IMA International Migration Administration
IMF International Monetary Fund
IMO International Maritime Organization
IOM International Organization for Migration
IOPC Funds International Oil Pollution Compensation Funds
IRO International Refugee Organization
ISA International Seabed Authority
ISDS Investor-​State Dispute Settlement
ITLOS International Tribunal for the Law of the Sea
ITO International Trade Organization
ITU-​R International Telecommunications Union—​Radiocommunications
LE Legitimate Expectations
LoN League of Nations
LOSC Law of the Sea Convention
MAI Multilateral Agreement on Investment
NAFTA North American Free Trade Agreement
NGO Non-​Governmental Organisation
NIAC Non-​International Armed Conflict
NIEO New International Economic Order
OAS Organization of American States
OECD Organisation for Economic Co-​Operation and Development
OPEC Organization of the Petroleum Exporting Countries
PSNR Permanent Sovereignty over Natural Resources
R2P Responsibility to Protect
RSR Reciprocating States Regime
SG Secretary General
SPLOS Meeting of States Parties to the Convention
TDM Transnational Dispute Settlement
TFEU Treaty on the Functioning of the European Union
TNC Transnational Corporation
TWAIL Third World Approaches to International Law
UDHR Universal Declaration of Human Rights
UN United Nations
UNCITRAL United Nations Commission on International Trade Law
UNCLOS UN Convention of the Law of the Sea
UNCLOS III Third United Nations Conference on the Law of the Sea
UNCTAD United Nations Conference on Trade and Development
UNGA UN General Assembly
UNHCR United Nations High Commission for Refugees
UNICEF United Nations International Children’s Fund
UNRRA United Nations Relief and Rehabilitation Agency
US United States
UTC Universal Coordinated Time
VCLT Vienna Convention on the Law of Treaties
WPLC World Peace through Law Conference
WTO World Trade Organization
 I
IN T RODU CT ION
 1
Situating Contingency in the Path
of International Law
Ingo Venzke*

I. Introduction

The present volume asks a question that is deceptive in its simplicity: Could international
law have been otherwise? In other words, what are past possibilities, if any, for a different
law? The path of law was long understood as expressing a natural plan, given fate or divine
fiat. The mark of enlightened modernity was then to no longer see the world, and the law in
it, as so predetermined that contingency was just puzzling.1 The ramifications of this move
were tremendous across theory and practice. The individual became the focal point of legit-
imate order and the master of a now disenchanted, freer world. Ridden with contradictions,
enlightened modernity evoked anxieties about how to bear the weight of one’s choices, if
not of the whole world. The newfound freedom triggered a longing for guidance and ex-
planation within this world of possibility, for foundations that were now evasive.2 Still,
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.
If that is so, then thinking through how international law could have been otherwise
should not be too hard, neither in theory nor in practice. In our original conference pitch,
Kevin Jon Heller and I claimed that ‘international law’s past . . . is ripe with possibilities that
have been forgotten’. We wanted to reveal and remember them. We did not, however, want
to engage in stories of miracle counterfactuals, hypothetical changes that are withdrawn
from worldly constraints. We set out in search of plausible possibilities that arose within
given circumstances. Many chapters in the volume now meet precisely that ambition, re-
trieving contingency from the margins of collective memory.
For none of the contributions has this been an easy task, nor should it have been. Behind
every possibility of the past stands a reason why the law developed as it did after all.3 The
search for contingency appeals to opposing critical sensibilities of wanting to show possi-
bilities of the past and wanting to reveal the determining forces that compel the law down

* Email: [email protected]. I am truly grateful to all the participants of the conference ‘Contingency in the Course
of International Law: How International Law Could Have Been’, University of Amsterdam, 14–​16 June 2018 for the
spirited discussions and all their input.
1 Niklas Luhmann, Kontingenz und Recht (Suhrkamp 2013) 36; Nicholas Onuf, ‘“Tainted by Contingency”

Retelling the Story of International Law’ in Nicholas Onuf (ed), International Legal Theory: Essays and Engagements
1966–​2006 (Routledge 2002) 359, 374.
2 See Theodor W Adorno and Max Horkheimer, Dialectic of Enlightenment (John Cumming tr, Verso 1997).
3 Compare Tedeschini, in the present volume, noting that ‘[t]‌he more we look for it, the more contingency

slips away’.

Ingo Venzke, Situating Contingency in the Path of International Law In: Contingency in International Law. Edited by: Ingo Venzke and
Kevin Jon Heller, Oxford University Press. © The Several Contributors 2021. DOI: 10.1093/​oso/​9780192898036.003.0001
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