On April 13 President Ford signed a bill unilaterally to extend the fisheries jurisdiction of the United States from the present 12-mile limit to 200 miles onto the high seas (and even thousands of miles at sea with regard to salmon) effective March 1, 1977. Barring a sudden breakthrough in the law of the sea negotiations, as of March 1, 1977 the Coast Guard may begin arresting vessels on the high seas pursuant to this act in violation of the treaty obligations of the United States. This action again exposes the inadequacy of the present foreign policy process for taking an international legal perspective into account. It may also prove the greatest mistake in the history of U.S. oceans policy.

In late 2018, the American Law Institute released a volume of the Restatement Fourth of the Foreign Relations Law of the United States. Initiated in October 2012 under the direction of Coordinating Reporters Sarah Cleveland and Paul Stephan, this volume covers three areas of U.S. foreign relations law: treaties, jurisdiction, and sovereign immunity. It remains to be seen whether the American Law Institute will revisit other portions of the Restatement Third, which was published in 1987. “[I]n the meantime, the provisions of the Third Restatement remain the position of The American Law Institute except where superseded by provisions in this Fourth Restatement.”

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.

Monica Hakimi has offered a thought-provoking and timely analysis of how the jus ad bellum operates, placing on the agenda of international legal scholarship a regulatory dynamic that has thus far remained underappreciated. While I believe that a discussion of this dynamic is overdue and thus welcome her plea to take informal regulation seriously, I find some of her underlying assumptions about the nature and function of international law problematic. Therefore, rather than applaud the manifold insightful points Hakimi makes, this essay zeroes in on two related assumptions in her article that I find questionable: first, Hakimi's reasoning about the law-creating effects of informal regulation and, on a related note, the distinction between legality and legitimacy; and second, her tendency to embrace uncritically the particularistic nature of informal regulation. Both points implicate what I term the “hyper-responsiveness” of the law, that is, the (problematic) notion that every momentary political constellation should be reflected in the content of the law. In embracing law's hyper-responsiveness, Hakimi's article sidesteps a discussion of the ambivalent implications of informal regulation.