A Grotian Moment: Part 1

Photo credit: AK
Photo credit: AK

The concept of “Grotian Moment’’ and the new rules regarding the legal theory of statehood

By the end of the 80s and beginning of the 90s of the 20th century, events have fundamentally changed the order of international relations. The disintegration of the Union of Soviet Socialist Republics and Eastern Europe, as well as the collapse of socialism, lead to drastic contradiction, growth of political instability and the emergence of local conflicts. At first, this refers to the countries and regions, which have multiethnic population. They have become the hot spots of regional and non regional players,pursuing their own geopolitical, economic and other interests. 

 As a result during the last decades international law also bore many fundamental changes. International law is the set of rules, as binding in relations between states, where the state is the only actor. International law is a complex web of laws, treaties, regulations, resolutions, governed by many state and non-state actors. 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. If states choose to ignore the existing international order and to engage in independent decision making process in an area, where international rules apply, such state risk interference by other states in the form of sanctions, isolationism and possibly military intervention. The kind of fundamental changes in the word has produced new rules regarding the legal theory of statehood is. Some of the specialists argue that statehood is no longer satisfied through the four traditional criteria of the Montevideo Convention: territory, population, government and the capacity to engage in international relations with other states. Instead of that, if the entities want to be qualified as a state or the worldscene, additional criteria need to be fulfilled. These additional criteria are in reality subparts of the 4rth pillar of statehood, the capacity to enter into international relations. They include the need for recognition by regional partners, as well as the most powerful states (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. This type of development of international law, causing the emergence of new rules and doctrines of international law, has been described as a Grotian Moment.

The concept of ‘’Grotian Moment’’ is so important, that it allows the scholars and specialists of international law to describe the importance of statehood now days, as well as to define, how these countries have no commitment on the world scene.

What is a Grotian Moment?

‘’Grotian Moment’’ is a term, which means a paradigm shifting development in which new rules and doctrines of customary international law emerge with unusual rapidity and acceptance. In other words, a Grotian Moment is an example, in which a fundamental change in the existing international system happens, thereby provoking the emergence of a new principle of customary law with outstanding speed. The term Grotian Moment was used by Richard Falk, in 1985, since then, the experts have employed it in a variety of ways.

The term Grotian Moment refers to eminent 17th century political thinker and lawyer, Hugo Grotius, who is hailed as the father of modern international law. One of his seminal works, ‘’De Jure Belli ac Pacis’’ ( The law of War and Peace), Grotius offered a new concept of international law, which aims to reflect the European reality after the negotiation of the Peace of Westphalia, in the concept of new formed nation-states.

Many commentators agree that the creation of the Nuremberg Tribunal at the end of World War II was a Grotian Moment (Professor Leila Sadat). Moreover, the establishment of the United Nations Charter is another example of Grotian Moment (Professor BardoGassbender and Jenny Martinez). The scholars have also applauded another establishment of the International Criminal Court as a Grotian Moment.

To convey the idea of a Grotian Moment, scholars have used other terms. Professors Anne Marie Slaughter and William Burket-White have referred to the term ,,Constitutional moment’’ , when arguing that the September 11th attack on United States was a new type of threats, which has links with International Community, based on the reformation of the new legal norms.

Several recent events exemplify the notion of Grotian Moment. At the end of the 20th century, the humanitarian intervention has been described as a Grotian Moment. In 1999, NATO forces intervened in Serbia to protect ethnic Kosovo Albanians from ethnic cleansing, implemented by FRY government (The Federal Republic of Yugoslavia).This campaign of NATO wasn’t authorized by the United Nations, but as a result of the global consensus (consensus-an agreement, unison) on this intervention, it was called illegal, but legitimate’’. This all means that the United Nation has become organ, legitimating the states actions and illegal notions.

The international community responded to the intervention through a new doctrine, which is called ‘’Responsibility of protection’’. This is authorized by humanitarian interventions in limited circumstances. In such conditions, humanitarian intervention by many scholars can also be regarded as Grotian Moment.

Second, the terrorist attacks on the World Trade Center and Pentagon on September 11, 2001, have had a profound impact on the international community’s understanding of the laws of war. After the attacks of the September 11th, the Security Council of the UN adopted Resolution 1368, which confirmed the right to use force in self –defense in Afghanistan against al-Qaeda, verifying the idea that, within the framework of international law, states may use forces in self-defense against non-state actors.

In fact, because of globalization, the legal theory of statehood has undergone profound de facto changes over the last decades.

The legal theory of statehood

Under international law, any entity that wishes to be treated as a state needs to satisfy four criteria of Montevideo Convention in 1933. According to convention, statehood is legal theory. Thus, the issue in theory iswhether an entity could be qualified as a state or not. According to Montevideo Convention, statehood is a positive legal theory, which is entirely divorced from the political act of state recognition.

Once an entity enters the international arena and represents itself as a state, external actors are free to recognize it as such or not. The decision of recognition is simply political act, based on position of the leading regime. Thus, such external actors could choose to treat an entity as a state, although it might not satisfy four criteria of statehood, and on the contrary, the external actors could choose not to treat an entity as a state, although it might satisfy the criteria of statehood. The Montevideo Convention, which is based on the legal criteria of statehood, had the purpose to ignore the political tenements of recognition.

Thus, in the theory, an entity could be qualified as a state, although many states choose not to recognize it as such. However, according to the 3rd article of Convention, the political existence of a state doesn’t depend on the recognition by other states. Even, until the recognition of a state, it has the right to protect its totality and independence, as well as find a way to be self – organized.

However, some support the so-called constitutive view of recognition, under which recognition by outside actors represent one of the main elements of statehood. According to this point of view, an entity cannot be qualified as statehood, unless external actors choose to treat it a state. The constitutive view is not supported by academics, but it is more realistic in practice. So, the legal theory of statehood has different manifestations.

Statehood functions are considered to be a shield, assuring those entities qualified as states, a certain protection from attacks on their sovereignty

Why is statehood important? What are the main features of statehood and how does it protect the sovereignty of state?

As above mentioned, statehood functions are a sovereignty shield. An entity that is treated as a state derives direct protectionfrom its statehood.

 First, any time an unfriendly neighbor or a group of other states decide to cross the borders in a military fashion, the state can argue that an armed attack has occurred and can invoke the legal theory of self-defense to protect itself. It can also request the assistance of other friendly state, under the guise of collective self-defense. A non-state cannot do all these so easily. A non-state is no man’s land (Terra nullius).

Second, statehood protects state sovereignty allowing states to participate in international organizations where major legal and political decisions are undertaken. Non –state entities are limited in their ability, to influence the development of international law, to protest against existing international legal rules, or to lobby powerful states to engage in certain behaviors on the international scene.

The above mentioned 2 points state the importance of statehood, but whether the viewpoint is faithful or not, we don’t know. This issue plays an important role in today’s geopolitical situation. And it is not fair to say that non-state entities have subordinate position within the international relations , as well as with its authority, non state entities are not only constrained, but they also suggest their norms.

Bibliography

  1. Anne-Marie Slaughter & William Burke-White, An International Constitutional Moment, 43 Harv. Int’l L. J. 1, 2 (2002).
  2. Milena Sterio, The Kosovo Declaration of Independence: Botching the Balkans or Respecting International Law?, 37 Georgia J. Int’l & Comp. L. (2009).
  3. Milena Sterio, The Evolution of International Law, 31 Boston College Int. & Comp. L. Rev. (2008).
  4. Milena Sterio, AGrotian Moment: Changes in the Legal Theory of Statehood. Research Paper 10-200. Cleveland State University.(October 2010).
  5. Michael J. Kelly, Pulling at the Threads of Westphalia: “Involuntary Sovereignty Waiver”? Revolutionary International Legal Theory or Return to Rule by the Great Powers?, 10 Ucla J. Int’l. & For. Aff. (2005).
  6. Michael P. Scharf, Seizing the “GrotianMoment”Accelerated Formation of Customary International Law In time of Fundamental Change, 43 Cornell Int. L. J. 1(2010).
  7. Grotian Moments and Accelerated Formation of Customary International Law https://www.youtube.com/watch?v=Cg-KqXovOF0
  8. N. Charter,http://www.un.org/en/sections/un-charter/chapter-vii/index.html
  9. http://www.gov/

Author: Anna Khachyan: © All rights are reserved.

Translated by Ashkhen Arakelyan


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Grotian Moment: Part 2


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