Grotian Moments and Peremptory Norms of General International Law: Friendly Facilitators or Fatal Foes?

The concept of a Grotian moment remains rather obscure in international law. On the one hand, it can refer simply to an empirical fact which galvanises the ordinary law-making processes, whether treaty-making or State practice, resulting in major shifts in international law. On the other hand, a Grotian moment might be seen as an event so significant that it results in an extraordinary shift in international law without full adherence to the processes for law-making. The former understanding has little legal significance, while the latter, which would be legally significant, would be controversial and without legal basis. Against this background the article discusses the intersections between peremptory norms and Grotian Moments. It does this by looking at the intersection between the two concepts as well as the intersection between Grotian Moments, on the one hand and, on the other hand, particular jus cogens norms. With respect to the former, for example, the article will consider whether the high threshold of peremptory status facilitates and hinders Grotian moments. With respect to the latter, the article will consider particular norms that have been said to have shifted on account of the Grotian moments, namely the right to use of force in self-defence as well humanitarian intervention.

The Impact of Sea Level Rise on Maritime Limits: A Grotian Moment in the Law of the Sea?

The legal order of the oceans centres on coastal geography which is undergoing unprecedented changes. Claims to national jurisdiction are based on distance from the coast and are only enforceable as long as they are consistent with international law. Consequently, sea level rise and submergence of coastal features can affect the location and enforceability of unilateral maritime limits and bilateral boundaries. Some States wish to maintain previously established entitlements around submerged territory but the only way to prevent fluctuations of unilateral limits is through artificial conservation of coastlines. Therefore, a change, in either the location of maritime entitlements or rules governing such entitlements, is inevitable. It has been proposed that maritime limits should be frozen to ensure opposability as coastlines change. That would enable States to exercise sovereignty and sovereign rights over areas that have no anchor in coastal territory, arguably causing a departure from the land dominates the sea principle and a Grotian Moment in the law of the sea. However, this article concludes that it is unlikely that proposals to freeze maritime limits will change the law of the sea and that the proposals may in fact serve to deter another paradigm shift, one that involves a departure from the principle of stable boundaries.

The ‘Grotian Style’ in International Criminal Justice

This article envisages how one might conceptualize the ‘Grotian Style’ in international criminal justice as a practice of adaptation spearheaded by international judges rather than as actual changes occurring in the international system. It foregrounds the emblematic career of Antonio Cassese at the ICTY as epitomizing the trajectory of a scholar on the bench intent on seizing a historic opportunity to reframe the law. The contours, origins, and prospects but also limitations of the ‘Grotian style’ are then discussed. The problem with the Grotian style is not primarily that it runs roughshod over defense rights, but that it appropriates a law-making authority which, in the international system, is better understood as primarily vested in states. In the process, it risks exposing its hubris and shallowness, especially when deciding on normatively intractable issues. In a context where international criminal justice is increasingly being normalized, the time may have come to reconceptualize judges’ role along more global constitutional lines as rooted in an ongoing dialogue with the international community of states and an emerging separation of powers.

Grotian Moments: The Concept

During times of fundamental change, customary international law can form quite abruptly. Scholars have begun to call the paradigm shifts and tipping points that lead to rapid formation of new rules of customary international law ‘Grotian Moments.’ This chapter introduces the concept, explains its appellation, provides historic examples of its application since World War ii, examines its usefulness, and addresses some of the critiques that have been leveled at the notion of accelerated formation of customary international law.

Why International Lawyers Measure Time with a Telescope: Grotian Moments & Richard Falk’s Histories of the Future

This article contextualises the origins of the term Grotian Moment, coined and frequently redefined by Richard Falk. By generating a conceptual history of the idea and its uses, the article draws attention to the ways that Falk’s sustained interest in the question of temporality and the nature of change in international law can inform present legal debates. The recovery of Falk’s efforts to engage with critics, geopolitical changes, and new legal ideas by reinterpreting and reimagining the meaning of a Grotian Moment sheds light on its relationship to questions of free trade, Eurocentrism, and revolutions in international law. By considering the methodological parallels with the work of Reinhart Koselleck, this article emphasises the importance of both historiographical and historical debates for the study of change in legal history, the analysis of the global legacies of Hugo Grotius, and the generation of expectations of the future in international law.

A Grotian Moment for Animal Sociability?

In this article, I will revert to the categories of ‘fitness’ and ‘sociability’ to ask whether a ‘Grotian moment for animal sociability’ can be conceptualized. Grotius claims that we share a core of fundamental laws with animals. Building upon a passage from Seneca’s De clementia, Grotius calls these laws ‘commune ius animantium’, i.e. the common law of living beings. These shared legal entitlements, based on a shared sense of innate fitness, show that a certain care of maintaining society (‘animal sociability’) is common to all living beings. However, as I will show, humans, as the only beings capable of speech and moral deliberation, remain the only translators and enforcers of this instinct into a language of rights. From this perspective, it can be argued that a ‘Grotian tradition’ of animal rights exists, as Grotius’s reliance on the ‘common law of living beings’ can be interpreted in a progressive manner. However, I will argue that animal sociability qualifies as a ‘non-Grotian moment’: sociability as owed to animals but only in a thin sense, as it requires human judgment to be enforced into strict right. Such a ‘non-Grotian moment’ reveals that the deeply anthropocentric structure of Grotius’ theory is incapable of triggering any paradigm shift, because animals lack the capacity for judgment that is so essential to be a legal person.

The Grotian Tradition, Grotian Moment, and Decolonization: A twail Perspective

The times of Grotius were a period of transition from a feudal to a capitalist order in Europe, ushering in new thinking on subjects such as human nature, commerce, state, war, and colonialism. In articulating his views, Grotius was not seeking to shape the law of nations for all times but to recast it in order to respond to the problems encountered by Holland (or the United Provinces), and more generally European nations, in the ongoing transition. In the backdrop of a brief discussion of the ‘Grotian tradition’, this article distinguishes different uses of the term ‘Grotian Moment’ and contends that ideally the term should be reserved for capturing developments that profoundly impact both the ‘logic of territory’ and the ‘logic of capital’ with the law of nations playing a significant role. While decolonization saw the expansion of the sovereign state system and certainly was a setback to the global accumulation of capital, the law of nations did not pro-actively support that process. Furthermore, efforts by postcolonial nations to bring about the transformation of the colonial legal order did not succeed making less meaningful the characterization of the decolonization process as a ‘Grotian Moment’.

Between ‘Time Immemorial’ and ‘Instant Custom’: The Time Element in Customary International Law

Article 38.1(b) of the Statute of the International Court of Justice, which refers to customary international law as ‘a general practice accepted as law’, makes no mention of duration. Yet the ‘time element’, as the Court itself called it, has not infrequently been relevant—if not central—to determining whether a rule of customary international law has come into being. The present article seeks to describe how far the passage of time is necessary for the creation of rules of customary international law, and the possible significance of time to the customary process more generally. While noting that no particular duration is required for the formation of customary international law, it suggests that some time must always elapse, and that assertions of a rapid development in customary international law are to be treated with a degree of caution. Light is thrown on particular ways in which time may indeed be of significance for the formation and identification of a rules of customary international law, and on further ways in which time (and timing) may impact the life cycle of such rules, including their possible change and demise.