A Grotian Moment: Changes in the Legal Theory of Statehood

Abstract

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. Scholars have thus written about globalization, and the changes brought about through its potent forces. 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. 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. 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. 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. 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.

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 III, this Article will turn to an examination of the legal theory of statehood in its traditional form. Part IV will describe 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 inter-connectivity 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 will argue that the legal theory of statehood should be amended, to incorporate real changes in the existing global understanding of statehood and state sovereignty. Statehood is an important theory, as it provides a sovereignty shield to entities that qualify as states, and as it insulates some of their decisions from global scrutiny. 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.

Keywords: international law, statehood, recognition, sovereignty, intervention