In the past decades of international legal thought, the defining role of bindingness has increasingly been approached with scepticism. It is less and less construed as the exclusive genetic code that provides the instructions for the identification and autonomous development of international legal discourses as international lawyers have sought to emancipate themselves from their own genetic heritage. Since the second half of the twentieth century, many international lawyers have come to feel that international legal discourses ought no longer to be structured and developed around the dichotomy between the ‘legally binding’ and the ‘legally nonbinding’. Their emancipatory moves have arguably brought about refreshing dynamism and excitement in international legal thought. And yet, as this chapter argues, bindingness has proved resilient. After recalling the modern understandings and ontological functions of bindingness in international legal discourses, a few observations are formulated on the emancipatory experiments found in recent international legal thought. The chapter ends with some remarks on the resilience of the idea of bindingness as a result of the anxiety and suspicion that has accompanied attempts to alter the genetic code of the discipline.
Hannah Buxbaum and Jean d’Aspremont
This is yet another case where the US Supreme Court was called upon to determine the reach of a federal statute. It held, on the one hand, that ‘the Racketeer Influenced and Corrupt Organizations Act’ (RICO) could be applied to conduct that occurs outside the United States. According to the Court, Congress intended certain provisions of RICO, such as §§1962 (b) and (c), to apply extraterritorially. This was significant, as it involved the rebuttal of the presumption against extraterritoriality in respect of those provisions. On the other hand, it also ruled that §1964(c), which provides for a private action, must prove an injury within the United States. It was, therefore, a bitter-sweet victory for the claimant, the European Community, who had brought a claim under §1964(c). As it alleged only foreign injuries, it failed to meet the test under this provision. The European Community and 26 of its Member States brought an action against RJR Nabisco and its related entities (‘Nabisco’), alleging that Nabisco participated in a global money laundering scheme in association with various organised crime groups, which violated RICO. This Act prohibits certain activities of organised crime groups, including the investing income derived from racketeering activities in an enterprise involved in interstate and foreign commerce; acquiring or maintaining an interest in an enterprise, and conducting affairs through a pattern of racketeering activity; and conspiring to violate any of these prohibitions.
Sahib Singh and Jean d’Aspremont
‘What meaning has the concept of murder, when we are confronted with the mass production of corpses?’ Hannah Arendt asks this question of her readers as she attempts to understand the workings of totalitarianism. It may, though, also sound apt for today’s international law and its concepts. Contemporary international lawyers ply their trade knowing full well that significant parts of this law are structurally implicated in and perpetuate on-going economic and social injustices. Yet lawyers idealistically and increasingly resort to international law’s promises. How could our greater recourse to concepts such as universality, aggression, development, humanity or rights (to name but a few) not be tinged with a sense of futility? But this would miss Arendt’s point, for her question is a critique of how we are prone to think with concepts. Recourse to the concept of murder in order to understand, explain and evaluate the known horrors of the concentration camps meant giving in to a certain common sense. It was to concede to the ‘great temptation to explain away the intrinsically incredible by means of liberal rationalizations’. Modes of thought or attitudes that seek to reduce the complexities (and horrors) of our social world to inadequate categories are not merely unwarranted but potentially dangerous. It is, after all, not inadequate concepts or attempts to grasp the ungraspable and infinitely complex that Arendt indicts, but rather those who would do so by turning away from life and hence responsibility.