Non-recognition by the United States Government of the absorption of Estonia, Latvia, and Lithuania by the Union of Soviet Socialist Republics in 1940 has confronted our courts with a series of questions reminiscent of the period of our non-recognition of the Soviet Government.

In recent years, many nations have made claims of extended maritime jurisdiction or exclusive control for various purposes, and sometimes have claimed sovereignty over areas of sea far beyond the three-mile territorial sea traditionally claimed by many nations. A primary objective of many of these claims has been control over fishing in coastal waters, with the purpose of reserving for the exclusive use of fishermen of the coastal state the fish resources in the waters claimed, or of controlling the activities of foreign fishermen and possibly exacting fees for the privilege of continued fishing. The nature of most claims of authority to regulate the taking of fish in coastal waters is such as to exclude foreign fishermen, such claims having as their basic purpose unconditional right of exclusion. What rights exist for displaced fishermen exist as a matter of comity, i.e., friendship between friendly nations, and as such form no basis for claims of legal right to recompense (although the governments of fishermen who are expelled without a phase-out period may justifiably respond in like unfriendly manner, enacting restrictive tariffs or similar economic handicaps). Several countries have made provision in their own laws for recognition of “traditional” or “historic” fishing for foreign fishermen on a basis of reciprocity, i.e., their fishermen would have similar rights in the exclusive fisheries zone of the foreign nation whose fishermen were permitted to continue fishing. Most such laws have been very recent. The problem is not new, however. Problems of access to the North Atlantic fisheries embroiled the United States and Great Britain immediately after the Revolutionary War, and were not resolved until 1910 by action of the Permanent Court of Arbitration at The Hague. Pelagic sealing inflamed relations between the United States and other nations in the late 19th century, requiring arbitration for settlement.

On February 28, 2013, the appeals chamber (Chamber) of the International Criminal Tribunal for the Former Yugoslavia (ICTY) overturned the 2011 conviction of General Momčilo Perišsicć, the former head of the Yugoslav Army (VJ), for aiding and abetting war crimes in Bosnia-Herzegovina and Croatia. By a 4-1 vote, the Chamber held that “specific direction” is an essential element of liability for the actus reus of aiding and abetting the crimes of murder, extermination, inhumane acts, attacks on civilians, and persecution as crimes against humanity and/or violations of the laws or customs of war. It also held that Perišsicć lacked the necessary “effective control” over his subordinates to subject him to command responsibility for their violations of the laws and customs of war.

In the dedication of his great work, De Jure Belli ac Pads, to Louis XIII of France, Grotius addresses the king as “ everywhere known by the name Just no less than that of Louis. . . . Just, when you call back to life laws that are on the verge of burial, and with all your strength set yourself against the trend of an age which is rushing headlong to destruction; . . . when you offer no violence to souls that hold views different from your own in matter of religion; . . . when by the exercise of your authority you lighten the burden of oppressed peoples.”

Privatization of functions that were traditionally considered sovereign has reached new heights. International lawyers have responded mostly by seeking to limit some of the consequences of that phenomenon, by, for example, ensuring accountability of states for outsourcing. International law has sometimes appeared agnostic, however, about the very legality of privatization. This Article explores a more radical take, namely the possibility that certain state functions could be seen as “inherently sovereign” under international law. International law can be understood this way, the Article argues, despite its general deferral to sovereignty (including the sovereignty to outsource), the fact that historically all kinds of functions that we have come to associate with the state have been exercised privately, and international law's own role in legitimizing privatization in our era.