Venzke: What If? Counterfactual (Hi)Stories of International Law

Ingo Venzke (Univ. of Amsterdam - Law) has posted What If? Counterfactual (Hi)Stories of International Law. Here's the abstract:

The article proposes to think counterfactually about international law. For example, what if the ICJ had decided South West Africa on the merits or had it not done so in Nicaragua? What if a different conception of the sources of international law had emerged in the drafting of the Statute of the PCIJ or during decolonization in the 1960s? Writing counterfactual (hi)stories of international law, the article submits, has the potential of, first, exposing the contingency of outcomes that is glossed over in the rush towards making sense of what actually happened. Second, it supports the understanding of what actually happened in a context-sensitive fashion that complements grand theories’ emphasis on systemic variables. Third, counterfactual thinking forms part of comparative assessments and exposes normative blind spots. Counterfactual thinking thus contributes to the freedom from necessity, from grand theory, and from reality. In short, by asking how it could be otherwise, counterfactual thinking questions the present shape of international law. Inspired by thriving practices of counterfactual thinking in history, social science and critical theory, the article develops a nuanced argument in favour of thinking counterfactually about international law. It draws the contours of what counterfactual thinking is about, discusses merits, offers guidance on how to do it, and provides at least one more detailed example — what if the International Trade Organization had been established around 1949?