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.
International environmental law, and in particular climate change law, are topics of keen interest in modern international law. Yet even in their modern forms, they depend upon and are governed by principles which derive from much earlier periods of international law and political thought. This chapter identifies sovereignty, as it has been interpreted and applied, as a key obstacle to achieving substantive environmental protection through the means of law, and traces that concept back to its roots in State of Nature theory. It analyses three contrasting State of Nature theories, those of Thomas Hobbes, John Locke, and David Hume, in order to show that although their understandings of nature differ, each treats the natural world primarily as a resource. It then turns to modern international environmental law, taking as its case study the whaling regime, and argues that through the continued use of concepts drawn from the State of Nature tradition, an understanding of the environment as a resource to be maximally exploited is continuously re-entrenched. These conceptual foundations continue to restrain progress and development in modern environmental law.
In Monetary Gold Removed from Rome, the International Court of Justice first articulated the “Monetary Gold rule”: the principle that it cannot rule on cases in which the conduct of a State not party to the proceedings forms the “very subject-matter” of the dispute. That principle is taken to be a fundamental rule of international law, deriving its force from the sovereignty of States and the nature of the international legal system.
This article will dispute that claim, and will argue that the principle of consent underpinning Monetary Gold is an empty formalism. Through a comparison of the Court’s approach in its contentious and advisory jurisdictions, it will ask to what States consent and for what purpose they do so, when they “consent to jurisdiction”, and no satisfactory answer will be found. It will conclude that the focus on consent in international adjudication is discretionary.
As climate negotiations fail to deliver the progress that States, activists, and others desire to see in tackling climate change, attention is rapidly turning to potential legal responses. This article investigates the potential of the ICJ’s contentious procedure as a forum for climate-related complaints, and focuses in particular on the provisional measures phase of a case. We consider the potential for a climate-related application for interim protection to meet the test set down by the Court for the issuing of a provisional measures order: prima facie jurisdiction, plausibility, and an urgent risk of irreparable prejudice. We conclude that a carefully constructed climate application could meet these criteria, but that it would be important to foresee and take account of a future application for interim protection from the outset in designing a case.