Bind it

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.

These three definitions are broken up into six total subvariants.

I quote them here:

16. trans. To oblige or constrain with legal authority [“1775   Johnson Taxation No Tyranny 45   Whether the English laws could bind Ireland”]

17. To subject to a specific legal obligation.

a. To make (a person or estate) liable for the payment of a debt, or fulfilment of an obligation. Usually pass.: To be made or become surety… [1650   T. Bayly Worcesters Apophthegmes 69   Offering to bind her estate for the repayment.]

b. To lay under obligation to answer or prosecute a charge (usually to bind over to appear , etc.), or gen. to perform a stated act or pursue a line of conduct. Freq. to bind over (used without following to and dependent phrase): to oblige (a person) to undertake to do, or abstain from, a particular act; spec. to make (someone) give a recognizance not to commit a breach of the peace, usu. for a specified period… [1917   Oxf. Jrnl. Illustr. 17 Jan. 8/3   The prisoner was bound over for twelve months.]

c. to bind one (over) to his good behaviour . lit. and fig…[1855   T. B. Macaulay Hist. Eng. III. 559   He thought it unjust..to bind him over to his good behaviour.]

d. colloq. I dare, or will be bound : I undertake the responsibility of the statement, I feel certain.. [1852   H. B. Stowe Uncle Tom’s Cabin II. xxviii. 128   You ‘ve been stealing something, I’ll be bound]

18. to be bound : to be under obligation, to have it as a duty, moral or legal, to do something… [1612   Bacon Ess. (new ed.) x. 63   Princes, are not bound to communicate all matters]

The first subvariant clearly invokes an element of power, to get someone to do something they might otherwise not. The middle four subvariants deal with having your financial assets, your liberty, your discretion, or your word/reputation on the line, with some implication of these meaning something to a court of law. The final subvariant is more colloquial, essentially describing norms of behavior.

How does this tie into ICJ judgements? The first subvariant seems very far from the nature of ICJ rulings. No military or coercer will make Japan comply. The next three also seem inapposite, since they imply some material Japanese “skin in the game” that isn’t quite right. The last two get closer to a purely normative conception of “bindingness” – Japan’s reputation or words are on the line, so it may be bound.

As this discussion shows, it’s tricky to talk about “bindingness” without touching on “compliance.” Harold Hongju Koh has written that “Louis Henkin asserted that ‘almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time.’ and empirical work since then seems largely to have confirmed this hedged but optimistic description”. In 2004, Colter Paulson wrote an article on compliance with ICJ decisions that noted that many states agree in advance to accept the ICJ’s jurisdiction and to implement the rulings, and that observers have recommended that the ICJ not make rulings if the state were likely to resist.

In other words, there are significant selection bias issues with determining the bindingness of ICJ rulings, or of much of international law. A state acting consistently with an ICJ ruling may simply capture a course of action that the state would have followed anyway, and courts rarely try tough lawsuits where this would not be the case. So, an artificially high level of compliance perhaps wrongly suggests a high level of bindingness.

In sum, reporters might be better off avoiding the word “binding” when discussing international legal rulings, and instead have a more precise description of what will happen to Japan under various compliance scenarios.

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