Month: March 2014

A Times report this morning deemed as “binding” an opinion of the International Court of Justice that Japan’s whaling practices were in violation of its obligations under the International Convention for the Regulation of Whaling.

I am a bit wary of any characterization of international law as “binding”. In the absence of a global entity able to force compliance, what does “binding” mean? My impression is that some scholars use “binding” to refer to what could be even just a purely moral obligation, while others use it to refer to an obligation backed up by force.

I had similar concerns about the word “to avoid” in a WTO law context (how much intention does it require?), which I explore here with coauthor Jayati Ghosh. Then, as now, I reached for the Oxford English Dictionary for a bit more insight.

The entry for the adjective “binding” refers back to the verb “to bind“. There are fully 23 variants of “bind” that the OED editors catalogue.  Among them:

1. Tying up and fastening (as in objects);
2. Tying up a person to deprive them of liberty;
3. More binding, encircling, intertwining of things.

We then get to a group of eight different variants, under the heading “To restrain or unite [people] by non-material bonds”. We have the binding of holy matrimony, the binding of affection between people, the binding of apprenticeship. We have the notion of an actor committing themselves to a future course of action (” A landed proprietor may bind himself to a future payment, in a written deed.”) There are references to purely moral obligation, although there is an emphasis on this undertaking being an actual constraint (much like the physical constraints noted above). Given these definitions, it is not surprising that many writers use “bindingness” in a sort of power-neutral sense. Japan “binds” itself to ICJ rulings, or is “bound”, because that is what could make the international legal system cohere.

Then, there are three of these that touch specifically on law-related themes.

Continue reading “Bind it” →

Over at the Monkey Cage, Erik Voeten analyzes which scholars mis-predicted Russia’s Crimean intervention. Most people got it wrong of course, and of various international relations subdisciplines, the high water mark was 20 percent getting it right. Of particular interest to 2C readers:

Self-identified Liberals and Constructivists did poorly, with Liberals both very unlikely to predict intervention and very likely to offer a definitive “no” rather than the “don’t know” answer that was very popular among Constructivists (who sometimes look dimly on the predictive ambitions of social science).

Perhaps a misplaced faith in the power of international law and institutions was at the root of this. After all, the Russian intervention violates a system of laws and norms that these paradigms hold dearly. Yet, non-realist scholars who study international law or international organizations as their primary or secondary field were more likely to foresee the military action (see graph).

Delving deeper into the data, I found that only 7 percent of the 150 self-identified Liberals and Constructivists who do not study international organizations and law foresaw the Russian military intervention. By contrast 15 percent of the 87 Liberals and Constructivists who study international law and organization got it right. This is admittedly speculative but it may be that paradigms impose blinders especially outside of ones field of study. Only 5 percent (4) of the 87 Liberals and Constructivists who do not study international security, Russia or international organizations and law correctly predicted a military intervention.

To follow up Erik’s speculation with more of my own, I would wager that legal scholars from non-social science backgrounds would probably fare even worse, if we had data on this, for similar reasons of misplaced faith in the normative powers of law. Those who are willing to treat legal processes empirically rather than normatively would probably score better.

Continue reading “Blinded by the law” →

Not quite, but the Court did side with UK investors against Argentina and Obama in a historic decision last week.

The decision paired an unusual alliance of the court’s most liberal and conservative justices, who ruled in favor of empowering transnational arbitrators  – not only to second guess national policies and judicial processes – but to decide when they get to second guess them. Two of the court’s swing votes (Chief Justice Roberts and Justice Kennedy) dissented, arguing for more deference to national institutions. This outcome could have been predicted from the tone of the court’s oral arguments back in December, which was fairly hostile to both governments’ arguments.

The dispute arose when Argentina’s financial crisis response in the early 2000s harmed a UK corporation’s investment in the country’s privatized natural gas distribution sector. The investor (BG Group) successfully brought a claim under the UK-Argentina investment treaty. The dispute was sited in the US, which meant that Argentina could (and did) ask US courts to vacate the award. The US phase of the dispute went all the way to the Supreme Court, making it the first time that the court has ruled on an investment treaty dispute.

The Obama administration sided with Argentina in alleging that the transnational arbitrators should not have accepted jurisdiction over the case, arguing that the treaty obligated BG Group to first seek recourse in Argentine courts for 18 months before launching the treaty complaint (which the company did not do). The US’ recent treaties put some similar procedural limits and preconditions on countries’ consent to be sued by investors; the solicitor general’s position in the case seemed motivated by ensuring courts respect those limits in future cases.

There are a lot of interesting and novel aspects of the Supreme Court’s decision. I’ll focus on just a few.

Continue reading “Supreme Court endorses investment treaties” →

I know the world is waiting with bated breath for my Oscar picks, so here goes (based on what I liked, not what I think will necessarily win):

Best Picture: 12 Years a Slave. Steve McQueen brilliantly captures white privilege up-and-down the income scale, on both sides of the color line.

Best Actor: Matthew McConaughey in Dallas Buyers Club. We should stop rewarding extreme weight loss/gain, but I say Matthew gets it because of his casual homophobia that never quite goes away despite developing new comrades.

Best Actress: Cate Blanchett in Blue Jasmine. Despite the entire universe feeling qualified to weigh in on one side or the other of the Woody Allen pedophilia accusations, Cate is just brilliant in being an extremely status anxious widow in the middle of a nervous breakdown. Lots of funny cameos too.

Best Supporting Actor: Michael Fassbender in 12 years a slave. Absolutely wretched performance. Totally passes the SNL try-out parody from last night.

Best Supporting Actress: Jennifer Lawrence in American Hustle. Hilarious breakdowns and bravado from my homestate girl.

Cinematography: Emmanuel Lubezki for Gravity. Great use of small and wide spaces.

Best Directing and Editing: David O. Russell and the editors for American Hustle. Very fun pacing of excellent ensemble cast.

Best Documentary: As I tipped in a previous post, Joshua Oppenheimer’s The Act of Killing was one of the most innovative techniques for interviewing I have seen.

Best Foreign Language: Sadly, the only one I saw was the Hunt, from Denmark – which was great and disturbing. Apropos of the Woody Allen accusations.

Best Production Design: Her. From the high waisted pants to the cityscapes, a treat to watch.

Best Animated Short: Feral. A disturbing graphic novel style depiction of a wild boy.

Best Adapted Screenplay: 12 Years a Slave. Making a relic from archives come alive.

Best Original Screenplay: All were excellent. I cannot decide.