International Law and Justice in Context

University of Amsterdam | 2021/22

Syllabus
(put together by prof. Ingo Venzke)

Dr Catherine Brölmann c.m.brolmann@uva.nl

Dr Eliana Cusato e.t.cusato@uva.nl
Dr Carl Lewis c.e.lewis@uva.nl
International Law and Justice in Context | Syllabus

Overview

Overview....................................................................................................................................... 2

Introduction: The Idea ............................................................................................................... 3

Lecture: Challenges, Complicity & Change ............................................................................. 4

Seminar I: Challenges (Global Poverty) ................................................................................... 7

Seminar II: Complicity ................................................................................................................ 9

Seminar III: Change ................................................................................................................. 11

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International Law and Justice in Context | Syllabus

Introduction: The Idea

This syllabus, some modifications apart, was put together by professor Ingo Venzke. Let
this be your overall guide to the course. You have chosen to specialize in international law
and within international law, you have taken specialized courses—refugee, trade,
investment, human rights or environmental law, etc. But the world is generally just not
structured (or fragmented) that way. Societal challenges typically transcend those
specializations or might, in fact, demand new ones. The first core idea of this course is to
turn the perspective around, not to take the perspective of a particular specialization, but
to start from particular societal issues, the challenges that they create, and to ask about the
law in relation to those challenges.
Second, the way in which law tends to be taught overwhelmingly treats it as a
response, perhaps a solution, to particular issues and problems. It may then happen that
the more complex ways in which the law typically relates to the world—the way in which
it partakes in making that same world, including its problems—fall out of view. Another
core aim of the course is thus to carve out how the law also contributes to the creation of
problems.
By and large, emphasis has been placed on why the law has taken its present shape.
You have also been taught to critically analyze, assess, and evaluate the law. Such critique—
sometimes explicitly, oftentimes implicitly—suggests that the law should somehow
change. But can it? The course’s third core idea is to ask how international law could be
otherwise. What would it take for the law to be different and what difference would a
different law possibly make?

Assessment

 Two graded papers, 800 words (excluding fn) each, valued 50% each. Both
assignments are available from March 1st on Canvas, as are the deadlines for
submission and other details.

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Lecture: Challenges, Complicity & Change

During this lecture, we will further develop the idea of the course along the three main
dimensions mentioned above, centred on (1) societal challenges, (2) law’s complicity in the
problems we are facing and (3) its possibility to change (vel non).
The emphasis will rest on issues of functional specialization and legal fragmentation—
how do they shape our understanding of the problems we are facing and thus the answers
we are seeking? To what extent is specialization a virtue or a vice? What are its main
drivers? What about regional fragmentation or, perhaps better put, claims of geographic
differences and challenges to universalism? Looking ahead at the later stages of the course:
How does fragmentation impact international law’s role ‘in the world’ and its complicity
in its problems? How does it influence possibilities for progressive, transformative change,
be it to alleviate poverty, stop civil wars, or curb global warming? From where—who,
how—should such change originate?

Required reading

In preparation of the lecture, read the following texts in this order, guided by the
questions below:
 International Law Commission (ILC), Fragmentation of International Law, 2006,
A/CN.4/L/682, paras 5-20.
What is the phenomenon of fragmentation? Which reasons does the ILC Report
mention for the phenomenon? What normative assessments does the report
convey about fragmentation—is it a good/bad thing, why? Do you agree with the
report’s explanation and assessment of the phenomenon of fragmentation? What
other reasons might there be as part of an explanation and/or assessment?
 Benvenisti E and Downs GW, ‘The Empire’s New Clothes: Political Economy and
the Fragmentation of International Law’ (2007) 60 Stanford Law Review 595, pp.
595-619.
Which reasons do Benvenisti/Downs identify for the phenomenon of
fragmentation; what is their assessment of it? How (and possibly why) does it
differ? What are the main (deep) differences between their contribution and the
ILC Report?
 ILC Report (2006), now paras 195-204 and Roberts A, Is International Law
International? (Oxford University Press 2017) pp. 1-17, available online via
uba.uva.nl and www.oxfordscholarship.com.
What are Robert’s main claims? To what extent are her claims particular to
international law when compared to other fields of law? Why? Which of her
arguments do you find convincing, which less so? How does Roberts think of
domination, and of claims to universalism in that regard?

What is your particular approach to international law, how is it different from others
that you have come to know, perhaps during your LL.M. or otherwise? What do
you think is the main reason for this particularity: Is it due to regional/geographic,
political/ideological differences, or other differences entirely?

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International Law and Justice in Context | Syllabus

If you cannot imagine what a different approached might look like (beyond the
examples that Roberts mentions herself), I suggest that you consider, as just one
example, the work by B.S. Chimni, such as his—perhaps classic—2004 article in
EJIL.

Optional reading for your reference

 * Anghie A, Imperialism, Sovereignty, and the Making of International Law

(Cambridge University Press 2005), offering a seminal account of international
law’s origin in the context of colonial expansion.
 Bernstorff J von and Venzke I, ‘Ethos, Ethics and Morality in International
Relations’ in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International
Law (Oxford University Press 2010), offering an overview of how to think about
the relationship between international law and justice.
 Brölmann C, ‘Law-Making Treaties: Form and Function in International Law’
(2005) 74 Nordic Journal of International Law 383. Brölmann expands on the notion
of legislative- or lawmaking treaty, which the ILC, too, uses in its 2006 Fragmentation
report.
 Chimni BS, ‘Customary International Law: A Third World Perspective’ (2018) 112
American Journal of International Law 1.
 Chimni BS, ‘International Institutions Today: An Imperial Global State in the
Making’ (2004) 15 European Journal of International Law 1.
 Jouannet E, The Liberal-Welfarist Law of Nations: A History of International Law
(Cambridge University Press 2012).
 Kingsbury B, ‘International Courts: Uneven Judicialization in Global Order’ in
James Crawford and Martti Koskenniemi (eds), Cambridge Companion to International
Law (Cambridge University Press 2011) 202-228.
 Koskenniemi M, Rech W and Jimenez Fonsec M (eds), International Law and Empire:
Historical Explorations (Oxford University Press 2017).
 Koskenniemi M, ‘Hegemonic Regimes’ in Margaret A Young (ed), Regime Interaction
in International Law (CUP 2012).
 * Koskenniemi M, ‘International Law and Hegemony: A Reconfiguration’ (2004)
17 Cambridge Review of International Affairs 197. This is probably the best piece in
which Koskenniemi develops the idea that claims in international law are invariably
hegemonic:
‘By “hegemonic contestation” I mean the process by which international
actors routinely challenge each other by invoking legal rules and principles
on which they have projected meanings that support their preferences and
counter- act those of their opponents. In law, political struggle is waged on
what legal words such as ‘aggression’, ‘self-determination’, ‘self-defence’,
‘terrorist’ or jus cogens mean, whose policy will they include, whose will
they oppose. To think of this struggle as hegemonic is to understand that
the objective of the contestants is to make their partial view of that meaning
appear as the total view, their preference seem like the universal preference’
(at 199).
 Koskenniemi M, ‘International Legislation Today: Limits and Possibilities’ (2005)
23 Wisconsin International Law Journal 61, on the limited anima among ILC members

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International Law and Justice in Context | Syllabus

and state representatives to strive towards a more holistic, integrated legal system,
taking comfort in fragmentation instead.
 Lang A, World Trade Law after Neoliberalism (Oxford University Press 2011).
 Lim C and Mercurio B (eds), International Economic Law After the Global Crisis: A Tale
of Fragmented Disciplines (Cambridge University Press 2015).
 Pulkowsk D, The Law and Politics of International Regime Conflict (Oxford University
Press 2014).
 Simma B, ‘Self-Contained Regimes’ (1985) 16 Netherlands Yearbook of International
Law 111. This is a classic article and interlocutor for the ILC Fragmentation Report.
 * Pahuja S, Decolonising International Law: Development, Economic Growth and the Politics
of Universality (Cambridge University Press 2011).
 Parfitt, R, The Process of International Legal Reproduction: Inequality, Historiography,
Resistance (CUP 2019).
 Venzke I, How Interpretation Makes International Law: On Semantic Change and Normative
Twists (Oxford University Press 2012), 37-64, on how to think about legal
interpretation as an interested and creative as well as constrained practice.

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Seminar I: Challenges (Global Poverty)

During this seminar, we will turn to one exemplary, and certainly crucial, societal issue: the
persistence of global poverty. The example will serve as a focus to think through issues of
fragmentation, law’s multi-faceted role in relation to societal issues, and, at a later stage,
law’s capacity to change.
There are no neutral descriptions of any phenomenon, of any societal issue or
problem. Every description chooses to include something and to omit something else.
Having said that, consider the following description of poverty as part of the UN
Sustainable Development Goals, here Goal 1, ‘No Poverty’:

‘More than 700 million people, or 10% of the world population, still live in extreme
poverty and is struggling to fulfil the most basic needs like health, education, and
access to water and sanitation, to name a few. The majority of people living on less
than $1.90 a day live in sub-Saharan Africa. Worldwide, the poverty rate in rural
areas is 17.2 per cent—more than three times higher than in urban areas.
Having a job does not guarantee a decent living. In fact, 8 per cent of
employed workers and their families worldwide lived in extreme poverty in
2018. Poverty affects children disproportionately. One out of five children live in
extreme poverty. Ensuring social protection for all children and other vulnerable
groups is critical to reduce poverty.
Poverty has many dimensions, but its causes include unemployment, social
exclusion, and high vulnerability of certain populations to disasters, diseases and
other phenomena which prevent them from being productive. Growing inequality
is detrimental to economic growth and undermines social cohesion, increasing
political and social tensions and, in some circumstances, driving instability and
conflicts.’

(More official information and resources are available, i.a. at

https://www.un.org/sustainabledevelopment and
https://sustainabledevelopment.un.org)

Compare the summary by Jason Hickel:

‘That if people are to achieve normal life expectancy, they need ... a minimum of
$3.70 per day ... at this more realistic level, we would see a total poverty headcount
of about 3.5 billion people ... We would also see that poverty is getting much worse,
with around 500 million more people added to the ranks of the extremely poor
since 1981’ (Hickel 2015, also quoted in Beckett 2016).

If you want to get more into the numbers and trends, consider this overview at
vox.com.

The numbers are important, but our focus will rest on the role(s) of international
law in relation to poverty. Focus on one particular legal regime: how does it relate to the
issue of global poverty?

Choose one of the following regimes and prepare accordingly; register your choice—
first come-first served (registration to open after the first lecture – see Canvas for
instructions).

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Regime A: Economic Law

 Read WTO, WB & IMF: Making Trade an Engine of Growth for All: The Case for
Trade and for Policies to Facilitate Adjustment (2017) [here, and on Canvas].
 Beckett J, ‘Creating Poverty’ in Anne Orford and Florian Hoffmann (eds),
Oxford Handbook of the Theory of International Law (2016) 985-1010.

Regime B: Human Rights Law

 Human Rights Council (HRC), Guiding principles on extreme poverty and human rights
(2012) [here, and on Canvas].
 For further info see the site of the Special Rapporteur on extreme poverty and
human rights, now Prof. Philip Alston [here].
 Marks S., ‘Human Rights and the Bottom Billion’, 1 European Human Rights Law
Review (2009) 37-49.

In each case, ask yourself: what does the respective regime have to do with global poverty?
What is the prevailing understanding of poverty from the perspective of this regime? What
is the understanding of possible solutions? Note that, next from the academic articles, the
documents above take some distance from international law, they are mostly about ‘policy’,
more generally. It is for you to make the connection between policy and law. Be prepared
to briefly present the argument of the respective document during the seminar—once
more:

 How does it understand the problem of poverty?

 What does it suggest as strategies in response?
 What is the role of international law?

In answering the third question, and to help you think critically about the multifaceted
role(s) of international law and its specialized regimes, you may draw upon the piece of
scholarship that is assigned together with the policy paper.

Optional reading for your reference

 * Dehm J, ‘Highlighting Inequalities in the Histories of Human Rights:

Contestations over Justice, Needs and Rights in the 1970s’ (2018) 31 Leiden Journal
of International Law 871.
 Linarelli J, Salomon ME and Sornarajah M, The Misery of International Law:
Confrontations with Injustice in the Global Economy (Oxford University Press 2018).
 * Pogge T, ‘The Role of International Law in Reproducing Massive Poverty’ in
John Tasioulas and Samantha Besson (eds), The Philosophy of International Law
(Oxford University Press 2010) 417-435.
 Orford A, ‘Food Security, Free Trade, and the Battle for the State’ (2015) 11 Journal
of International Law & International Relations 1.
 Venzke I, International Law and the Spectre of Inequality (Amsterdam University Press
2019).

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Seminar II: Complicity

To what extent does international law play a role in contributing to poverty, and what does
that mean for us lawyers? What should we do?

We will build the discussions in this 2nd seminar around your close, careful
preparatory reading of

 Marks S, ‘Human Rights and Root Causes’ (2011) 74 Modern Law Review 57-78.

Ask yourselves: What is Marks’ main argument? What exactly is her critique of i.a.
Special Rapporteur Olivier De Schutter? Do you think that critique is justified, or
is Marks unduly critical? What does Marks mean with ‘false contingency’?

and

 Unger RM, What Should Legal Analysis Become? (Verso 1996), pp. 1-2, 34-37 & 189-
90.

Note that Unger does not write about international law specifically; his argument
is rather placed in the context of domestic law, tied to the U.S. American context,
mostly. What are, according to Unger, reasons for law’s unfulfilled potential? What
does he identify (on those few pages) as the main problem? What does he advocate
in response? Do you agree with his identification of the problem, and his suggested
solution? Why (not)?

The reading has been limited to these two texts because you just finished your first
assignment, and because they are indeed rich texts that you might want to read
twice.

Optional reading for your reference

 Also see the references from the lecture, especially Anghie and Pahuja.
 Baxi U, Human Rights in a Post Human World: Critical Essays (Oxford University Press
2009).
 Brinks D, Dehm J and Engle K, ‘Introduction: Human Rights and Economic
Inequality’ (2019) 10 Humanity: An International Journal of Human Rights,
Humanitarianism, and Development 363.
 *Feichtner I, ‘Critical Scholarship and Responsible Practice of International Law.
How Can the Two Be Reconciled?’ (2016) 29 Leiden Journal of International Law 979.
 Kennedy D, A World of Struggle: How Power, Law and Expertise Shape Global Political
Economy (Princeton University Press 2016).
 Kennedy D, The Dark Sides of Virtue. Reassessing International Humanitarianism
(Princeton University Press 2004).
 Koskenniemi M, ‘What Is Critical Research in International Law?’ (2016) 29 Leiden
Journal of International Law 727.
 * Moyn S: Not Enough: Human Rights in an Unequal World (2018).

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 Orford A, ‘Feminism, Imperialism and the Mission of International Law’ (2002)

71 Nordic Journal of International Law 275
 Özsu U, ‘Neoliberalism and Human Rights: The Brandt Commission and the
Struggle for a New World’ (2018) 81 Law and Contemporary Problems 139.
 Pahuja S, ‘Laws of Encounter: A Jurisdictional Account of International Law’
(2013) 1 London Review of International Law 63.
 Thomas C, ‘Critical Race Theory and Postcolonial Development Theory:
Observations on Methodology’ (2000) 45 Villanova Law Review 1195.

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Seminar III: Change

This closing seminar will be split in two parts:

(1) A discussion of the first assignment: What are the different regimes relating to
global warming and what role do they play?

(2) If international law plays a role in contributing to challenges such as global poverty
and global warming, how could it possibly have been, and possibly still be,
otherwise? That is the guiding question—deceptive in its simplicity—that leads
through the 3rd seminar. We will discuss this question both in its more historical,
and its more forward-looking dimensions. This shall further help you to approach
the 2nd assignment.

In preparation, read

 Dehm J, ‘Highlighting Inequalities in the Histories of Human Rights:

Contestations over Justice, Needs and Rights in the 1970s’ (2018) 31 Leiden Journal
of International Law 871-895.

How does Dehm’s account of human rights—their history and past/present

potential—differ from that of Marks (Seminar II)? What do you think motivated
Dehm to investigate the history of human rights (and to do so in the way she did)?
What would Marks probably say if she were asked to comment on Dehm’s article?

 Venzke I, ‘Possibilities of the Past? The Histories of the NIEO and the Travails of
Critique’ (2018) 20 Journal of the History of International Law 263-302.

How do we know what is possible, in the past, present and future? What do you
make of my account of possibility—what do you find (un)convincing?

Facultative reading for your reference

 Anghie A, ‘Legal Aspects of the New International Economic Order’ (2015) 6

Humanity: An International Journal of Human Rights, Humanitarianism, and Development
145.
 * Bedjaoui M, Towards a New International Economic Order (UNESCO 1979), this is
the seminal text of the time, browse through it as it offers a remarkable reading
experience—a glimpse into the past and present state of affairs.
 * Charlesworth H, ‘International Law: A Discipline of Crisis’ (2002) 65 Modern Law
Review 377
 Johns F, Joyce R and Pahuja S, ‘Introduction’ in Fleur Johns, Richard Joyce and
Sundhya Pahuja (eds), Events: The Force of International Law (Routledge 2011), 1-17.
 Koskenniemi M, ‘Histories of International Law: Significance and Problems for a
Critical View’ (2013) 27 Temple International and Comparative Law Journal 215.
 * Marks S, ‘False Contingency’ (2009) 62 Current Legal Problems 1.

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 * Nijman, J, ‘An Enlarged Sense of Possibility for International Law: Seeking

Change by Doing History’, Amsterdam Center for International Law No. 2020-05.
 Salomon ME, ‘From NIEO to Now and the Unfinishable Story of Economic
Justice’ (2013) 62 International and Comparative Law Quarterly 31.

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