Bindingness

Abstract

In the last decades of international legal thought, the defining role of bindingness has been growingly approached with skepticism. 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 20th 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 non-binding’. Their emancipatory moves have arguably brought about refreshing dynamism and excitement in international legal thought. And yet, as this article argues, bindingness has proved resilient. After recalling the modern understandings and ontological functions of bindingness in international legal discourses (1), a few observations are formulated on the emancipatory experiments found in recent international legal thought (2). This paper ends with some remarks on the resilience of the idea of bindingness as a result of the anxiety and suspicions that have accompanied the attempts to alter the genetic code of the discipline (3).

Keywords: International law, legal theory, international obligation, autonomy, source, normativity, legitimacy, authority, tradition, international law as a discipline

JEL Classification: K33