A Grotian moment: changes in the legal theory of statehood.

• Jurisdiction: United States
• Date: 22 March 2011
• Author: Sterio, Milena

1. INTRODUCTION

   International law has undergone profound changes over the last decades. It has transformed itself from a set of rules governing inter-state relations, where states were the only actors, to a complex web of laws, treaties, regulations, resolutions and codes of conduct that govern a variety of state and non-state actors in their daily interactions. (1) Scholars have thus written about globalization and the changes brought about through its potent forces. (2) In the process of globalization, states have lost some attributes of sovereignty, and their bundle of sovereign rights has been meshed in with regional and global rules, which often supersede states' decision-making power. (3) For example, states must consult international organizations and authorities before they decide to use force against other states, before they set applicable import and export trade tariffs, and before they determine that a minority group does not deserve any self-determination rights. (4) If states choose to ignore the existing international order and to engage in independent decision-making processes in an area where international rules apply, such states risk interference by other states in the form of sanctions, isolationism, and possibly military intervention.

   This kind of fundamental change in the existing world order--the increased chipping away of state sovereignty through the forces of globalization--has produced new rules regarding the legal theory of statehood. As this article argues below, statehood is no longer satisfied through the four traditional criteria of the Montevideo Convention: territory, government, population, and the capacity to engage in international relations. (5) Rather, for an entity to qualify as a state, and to continue to be regarded as a state on the world scene, additional criteria need to be fulfilled. These additional criteria are in reality subparts of the fourth pillar of statehood, the capacity to enter into international relations, and they include: the need for recognition by both regional partners, as well as the most powerful states, which I refer to as the Great Powers; a demonstrated respect for human/minority rights; and a commitment to participate in international organizations, and to abide by a set world order. (6) This type of profound development in international law (globalization), causing the emergence of new rules and doctrines of international law (statehood), has been described as a Grotian Moment. (7)

   This article will examine the Grotian Moment theory and its practical application toward the legal theory of statehood. To that effect, this article will describe, in Part II, the notion of a Grotian Moment. In Part II1, it will examine the legal theory of statehood in its traditional form. Part IV describes changes in the legal theory of statehood brought about by the forces of globalization, in a Grotian Moment manner. These changes include a new notion of state sovereignty and the accompanying right to intervention, the emergence of human and minority rights which sometimes affect state territorial integrity, the existence of de facto states, like Northern Cyprus and Republika Srpska, and the concept of state interconnectivity and the proliferation of regional and international norms and organizations. This article will conclude that all these changes, caused by globalization, have affected the legal theory of statehood, in a Grotian Moment.

   Moreover, this article argues that the legal theory of statehood should be amended, to incorporate real changes in the existing global understanding of statehood and state sovereignty. (8) Statehood is an important theory, as it provides a sovereignty shield to entities that qualify as states and insulates some of their decisions from global scrutiny. (9) While it is true that states no longer enjoy absolute sovereign freedom to make decisions within their own territory, it nonetheless remains accurate that states do enjoy a set of rights and privileges, which non-state entities do not. The traditional theory of statehood does not take into account modern-day features of state sovereignty, and as such, either treats offending entities as states, thereby protecting them from outside interference, or, denies statehood to entities that otherwise deserve it. The Grotian Moment in the legal theory of statehood is important to capture, because it would enable scholars and international law practitioners to more accurately describe what statehood means today, and what states may and may not do on the international scene without repercussions.

2. WHAT Is A GROTIAN MOMENT?

   Grotian Moment is a term that signifies a "paradigm-shifting development in which new rules and doctrines of customary international law emerge with unusual rapidity and acceptance." (10) In other words, a Grotian Moment is an instance in which a fundamental change in the exiting international system happens, thereby provoking the emergence of a new principle of customary law with outstanding speed. (11) Professor Richard Falk coined the term Grotian Moment in 1985; since then, experts have employed it in a variety of ways. (12) Here, I adopt the meaning given to the term Grotian Moment by Professor Michael Scharf: "a transformative development in which new rules and doctrines of customary international law emerge with unusual rapidity and acceptance." (13)

   The term "Grotian" refers to Dutch scholar, Hugo Grotius (1583-1645), who is hailed as the father of modern international law. (14) In the mid-17th century, the concept of nation-states crystallized to form a fundamental political unit of Europe. Grotius, in his seminal work, De Jure Belli ac Pacis (The Law of War and Peace), "offered a new concept of international law designed to reflect that new reality." (15) Similar to how the negotiation of the Peace of Westphalia, in Grotian times, produced this novel understanding of international law by Grotius, more modern events have constituted Grotian Moments over the last several decades. Thus, many commentators agree that the creation of the Nuremberg Tribunal at the end of World War II was a Grotian Moment. (16) Moreover, the establishment of the United Nations Charter is an example of yet another Grotian Moment. (17) Finally, scholars have applauded the recent establishment of the International Criminal Court as a Grotian Moment. (18)

   As noted by Professor Scharf, other scholars have used other terms to convey the idea of a Grotian Moment concept. Professor Bruce Ackerman used the term "constitutional moment" to describe the changes in American constitutional law resulting for the New Deal era. (19) Professors Bardo Fassbender and Jenny Martinez have referred to the drafting of the U.N. Charter as a "Constitutional moment" in the history of international law. (20) Professor Leila Sadat has similarly referred to Nuremberg as a "'constitutional moment' for international law." (21) Regarding more recent events,, Professors Anne Marie Slaughter and William Burket-White have referred to the term "constitutional moment" when arguing that the September 11th attacks on the United States represent a change in the nature of threats facing the international community, justifying the development of new rules of customary law. (22) The term "international constitutional moment" is similar to the concept of Grotian Moment; the latter, however, may signify a broader change and a wider-ranging development, which affects international law on the whole, and not merely subfields of international law. (23)

   Finally, the notion of Grotian Moment can also be distinguished from the concept of "instant customary international law," which had been advanced by some scholars. (24) Normally, customary international law is formed through gradual and widespread state practice and a sense of legal obligation to comply with the emerging norm.25 The process of establishing a norm of customary international law can take many decades, or even centuries. (26) "Instant customary international law," on the other hand, is a theory which argues that state practice may not be necessary at all for the formation of customary law, if states' opinio juris can be clearly demonstrated through their votes on General Assembly resolutions. (27) This theory presents several problems, because it focuses so closely on General Assembly resolutions, which may not represent the best evidence of states' sense of legal obligations. (28) The Grotian Moment theory, however, looks beyond General Assembly resolutions and focuses on paradigmatic changes in international law caused by rapid and profound global developments. "[T]he 'Grotian Moment' concept contemplates accelerated formation of customary international law through states' widespread acquiescence or endorsement in response to state acts, rather than instant custom based solely on General Assembly resolutions." (29) The Grotian Moment theory may thus rely on General Assembly resolutions to a certain extant, to discover evidence of an emerging customary law norm, resulting from a period of fundamental change. Yet, General Assembly resolutions are purely one of the tools utilized by scholars seizing a Grotian Moment, as noted by Professor Scharf:

   [T]he 'Grotian Moment' concept may be helpful to a court examining whether a particular General Assembly resolution should be deemed evidence of an embryonic rule of customary international law, especially in a case lacking the traditional level of widespread and repeated state practice. In periods of fundamental change - whether by technological advances, the commission of new forms of crimes against humanity, or the development of new means of warfare or terrorism rapidly developing customary international law as crystallized in General Assembly resolutions may be necessary for international law to keep up with the pace of other developments. (30) Several recent events exemplify the notion of a Grotian...