The Grotian Moment concept provides a lens through which to reflect on the enduring hold of state sovereignty on international environmental law. The article traces the development of the field’s customary rule framework and canvasses efforts to push its conceptual boundaries beyond the inter-state paradigm. Given their dominant role in the field, the article then provides a brief overview of treaty-based approaches to the development of international environmental law. It focuses on the global response to the climate emergency, as illustrative of how international environmental law has evolved in response to the challenges posed by complex crises. The article concludes by suggesting that international environmental law is unlikely to see a Grotian Moment at the level of customary international law, but that it does hold potential for the new thinking and new approaches that could produce a ‘quasi’ Grotian Moment.
Expanding Universe: Grotian Moments in the Practice of the UN Security Council (Inger Österdahl) (DOI 10.1163/18760759-43010003) (OPEN ACCESS)
Abstract:
This contribution explores Grotian Moments in the practice of the UN Security Council in three different but closely related subject areas. The three areas are, in turn, the way the Security Council interprets the concept of ‘threat to the peace’ or more generally ‘international peace and security’, the law-making by the Security Council, and the subjects – in the sense of legal or natural persons – that the Security Council chooses to address. It turns out that the interpretation by the Security Council of the UN Charter has been remarkably flexible, expanding the scope of action of the Council considerably. Whether its interpretation of the UN Charter also deserves to be labelled ‘Grotian’, however, is rather a matter of rhetoric than law.
Corruption in International Law: Illusions of a Grotian Moment (Simona Ross & Mark Somos) (DOI 10.1163/18760759-43010004) (OPEN ACCESS)
Abstract:
Has there already been a Grotian Moment for corruption? If not, what would it take for new legal rules and doctrines on corruption to crystallise? This article seeks to answer these two questions by reviewing the relevant history of international legal scholarship, the current public international law framework for anticorruption, and recent developments in international legal practice. We conclude that a Grotian Moment may have been reached for a narrow concept of corruption, focused on petty corruption and bribery, with the proliferation of international anticorruption law following the Cold War. However, a Grotian Moment for a broadened understanding of corruption, based on other forms such as institutional, political, and grand corruption, ought to emerge to comprehensively address all forms of corruption. Given the range of challenges, including resistance from political elites and the indeterminacy of criminal liability, a Grotian Moment for a broadened concept of corruption remains improbable.
Data Surveillance Since the Snowden Revelations: A Grotian Moment in International Law? (Milan Tahraoui)
Abstract:
Mass data surveillance practices have received heightened attention in international law since the Snowden revelations of 2013. In this article, I examine whether that attention has given rise to a “Grotian moment” regarding the regulation of these activities under international law. At the outset, I answer that question in the negative and conclude that no general customary international law rules have emerged. Yet, that is not the end of the story. At a more fundamental and conceptual level, far reaching transformative process are underway in international law within the context of datafication. These concern new forms of power and/or control over data flows, and data surveillance practices are an inherent feature of that power. I contend that although there is no accelerated process of customary international law formation regarding data surveillance activities, it may be that a prolonged, epochal, Grotian moment is taking place. To that end, I argue that data surveillance must be understood as one manifestation of a broader constellation of shifts, through which ‘developments that profoundly impact the logic of territory or/and the “logic of capital” without signalling the arrival of a new international order’ are arguably in the making.
(Meta) Grotian Moment: International Organizations and the Rapid Formation of Customary International Law (Lorenzo Gasbarri) (DOI 10.1163/18760759-43010006)
Abstract:
In this paper, I first discuss the concept of ‘Grotian Moment’ in the context of the capacity of international organizations to contribute to the formation and identification of customary international law. Afterward, I apply three levels to discuss the time element of the formation of custom. At the micro-level of the institutional practice, the time required to form a customary norm may depend on whether each form of practice is directed to the institutional or to the international dimension. At the level of the organ, I reflect on the difference played by the presence or absence of member States in the institutional organ that adopts the practice relevant for custom formation. At the macro-level of the characteristics of the organization, I distinguish between so-called supranational and functional organizations. In general, I exclude the relevance of speaking in terms of a ‘Moment’ that produces a paradigm shift, and I stress the continuous change to which international law is subject.
Statehood: A Grotian Moment 2 (Milena Sterio) (DOI 10.1163/18760759-43010007)
Abstract:
Grotian Moments are instances of accelerated formation of customary law, sparked by significant world events, such as wars, terrorism attacks, developments in technology, or natural catastrophes. This article will apply the Grotian Moment theory to the legal criteria of statehood, in an attempt to assess whether an evolution in specific elements of statehood has resulted in such paradigm-shifting Grotian Moments. In particular, this article will argue that the evolving political nature of our world order has contributed toward the need to re-conceptualize the legal theory of statehood. This article will thus posit that this constitutes a so-called Grotian Moment 2: a period of time when significant contestation of prevailing international legal norms and institutions occurs, and when novel thinking, norms and institutions attempt to replace elements of the old but may not succeed in doing so. This article posits that developments in the legal theory of statehood may be best described as Grotian Moment 2 although various historical and political developments have reshaped our contemporaneous conception of statehood, it may be argued that international law itself has neither contributed to the evolution of a new legal theory of statehood nor changed its own norms.
Grotian Moments in the Law of Self-Determination: Law, Rhetoric, and Reality (Tom Sparks) (DOI 10.1163/18760759-43010008)
Abstract:
Self-determination is one of international law’s most reviled and yet most important principles. The legal development of self-determination – or specific forms thereof – as a customary norm of international law has been shaped and spurred by key moments. These include the American and French declarations of 1776 and 1789, the conclusion of the UN Charter, and the General Assembly’s resolution 1514 (xv) in 1960. This article analyses whether, in characterising the effect of such moments, the label ‘Grotian’ moment adds meaningfully to the analysis. It concludes that the example of self-determination suggests that the ‘Grotian’ moment concept is not meaningfully illuminating; tending either to reduce to a slight of hand in favour of the so-called ‘Great Powers’, or alternatively to pathologise developments that would be amenable to standard forms of customary legal analysis.
Ancient Geographers and Modern Travelogues in the Early Seventeenth Century. The Difference between Hugo Grotius’s Bewys van den waren Godsdienst (1622) and De veritate religionis christianae (1627–40) (Silke-Petra Bergjan) (DOI 10.1163/18760759-43010009)
Abstract:
The Bewys van den waren Godsdienst and De veritate religionis Christianae originated against the background of Grotius’s familiarity with classical literature. To understand the innovative impact of these writings, the historical method applied must be considered. Grotius did not rely on authorities, but was compiling historical witnesses for the three religions. The availability and visibility of the witness reports are regularly referred to in the text. Thus, history and classical historians enter the picture. Interestingly, this cannot be separated from the debate about the methods to be used in geography, a matter that gains importance as the difference between Bewys and De veritate is nowhere as visible as in the geographical references. The generous sprinkling of place names from different continents contributes to the poem’s factual character. The place names in the Bewys derive from the Dutch sea trade and can be found in the travel reports of the time. This is elucidated by two examples: the island Waygat in the Artic, and the coast of Mina in the Gulf of Guinea. In De veritate, however, all such references are removed. In their stead appear examples from ancient topography, to be annotated in the 1640 edition with ample quotations from Pliny, Strabo, Josephus and others.
Hugo Grotius’s De iure belli ac pacis: a Report on the Worldwide Census of the First Edition (1625) (Edward Jones Corredera, Francesca Iurlarlo, Laura Muschel & Mark Somos) (DOI 10.1163/18760759-43010010)
Abstract:
This article provides new information on the publication history of the first edition of the text that, according to many scholars, laid the ground for the growth of international law: Hugo Grotius’s De iure belli ac pacis. Drawing on the preliminary findings of the Grotius Census Project at the Max Planck Institute for Comparative Public Law and International Law, funded by the German Research Foundation (Deutsche Forschungsgemeinschaft), the following pages shed light on the first three states of the typescript, the sources that Grotius had access to in France while drafting the book, and the early circulation of the 1625 edition, published by Nicolas Buon in Paris. The goal of this publication is to disseminate updated information on the printing history of this key text in the history of legal and political thought, and to invite readers to come forward with more information about the location of the remaining copies of the text, in order to advance our understanding of the rise of international law around the world.
Hugo Grotius’s De iure belli ac pacis: a Report on the Worldwide Census of the Second Edition (1626) (Edward Jones Corredera, Francesca Iurlarlo, Laura Muschel & Mark Somos) (DOI 10.1163/18760759-43010011)
Abstract:
The first edition of Hugo Grotius’s De iure belli ac pacis was published in Paris by Nicolas Buon in 1625. An unauthorised second edition appeared in Frankfurt a year later, from the reputable Wechel press. After Grotius made hundreds of changes to the first and second states of the first edition, and failed to convince the publisher Nicolas Buon of the merits of printing yet another edition of the book, the Wechels’s release of a new edition sought to capitalise on the high demand for the text, as copies had sold out in Central Europe by the summer of 1625. In this preliminary report on the 1626 edition, using online and card catalogues, we have located 59 surviving copies. We examined thirteen copies in person, and another three fully digitised copies online, and on the basis of this small sample we have been able to draw a number of conclusions. We hope that this research note on preliminary results will generate interest in this unduly neglected edition, and that readers will kindly bring further copies to our attention.
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