Since the close of the Cold War, the international community has created a variety of legal institutions designed to step in when state justice systems fail to prosecute genocide, war crimes, and crimes against humanity. The ad hoc criminal tribunals, the hybrid tribunals (such as the Special Court for Sierra Leone), the International Criminal Court (ICC), and the use of universal jurisdiction by national courts are among a new generation of courtly mechanisms designed to hold wrongdoers criminally accountable, state justice systems notwithstanding. These mechanisms represent an era of international judicial involvement in what used to be a more exclusively sovereign matter—the response to mass crimes against civilian populations. Accordingly, they have engendered a slew of scholarship devoted to analyzing their strengths and weaknesses, individually and as a group.

International organizations undermine democracy, or so their critics charge: not only do international organizations themselves operate undemocratically, but they undercut democratic governance within their member states. In particular, when states participate in international organizations, they lose control over policy outcomes because each state must share decision-making authority with other member states. And within member states, national legislatures—the bodies specifically designed to be responsive to popular control—are marginalized. Legislatures lack direct influence over international organizations and also have little influence over the executive branch’s interactions with such organizations.

The Community Court of Justice of the Economic Community of West African States (ECOWAS Court) is an increasingly active and bold adjudicator of human rights. Since acquiring jurisdiction over human rights complaints in 2005, the ECOWAS Court has issued numerous decisions condemning human rights violations by the member states of the Economic Community of West African States (Community). Among this Court’s path-breaking cases are judgments against Niger for condoning modern forms of slavery and against Nigeria for impeding the right to free basic education for all children. The ECOWAS Court also has broad access and standing rules that permit individuals and nongovernmental organizations (NGOs) to bypass national courts and file suits directly with the Court. Although the Court is generally careful in the proof that it requires of complainants and in the remedies that it demands of governments, it has not shied away from politically courageous decisions, such as rulings against the Gambia for the torture of journalists and against Nigeria for failing to regulate multinational companies that have degraded the environment of the oil-rich Niger Delta.

We live in a shrinking world where interdependence between countries and communities is increasing. These changes also affect—as they should—the concept of sovereignty. In past decades the predominant conception of sovereignty was akin to owning a large estate separated from other properties by rivers or deserts. By contrast, today’s reality is more analogous to owning a small apartment in one densely packed high-rise that is home to two hundred separate families. The sense of interdependency is heightened when we recognize the absence of any alternative to this shared home, of any exit from this global high-rise. The privilege of bygone days of opting out, of retreating into splendid isolation, of adopting mercantilist policies or erecting iron curtains is no longer realistically available.

The concepts of necessity, imminence, and proportionality play a central part in Daniel Bethlehem’s sixteen proposed principles regulating a state’s use of force against an imminent or actual attack by nonstate actors. While all three are requirements that must be considered in the law of self-defense, their exact content remains somewhat unclear. In this comment, we examine how each one is conceived in Bethlehem’s principles and review the questions that remain unanswered.

When the skin of an Australian platypus was first taken to England in the 1700s, scientists thought it was a fake. It looked like someone had sewn a duck’s bill onto a beaver’s body; one scientist even took a pair of scissors to the skin looking for stitches. The animal had fur and was warm-blooded like a mammal, yet laid eggs and had webbed feet like a bird or a reptile. Scientists struggled to categorize this unusual creature. Was it a bird, a mammal, or a reptile? Or was it some strange hybrid of all three?

It is often asserted that the Vienna Convention on the Law of Treaties (VCLT) relegates drafting history to a rigidly subsidiary role in treaty interpretation. Many commentators go so far as to suggest that the VCLT entrenches a categorical prejudice against travaux préparatoires (travaux)—the preparatory work of negotiation, discussions, and drafting that produces a final treaty text. Because of this alleged hostility to history as a source of meaning, the conventional wisdom is that when an interpreter thinks a text is fairly clear and produces results that are not manifestly unreasonable or absurd, she ought to give that prima facie reading preclusive effect over anything the travaux might suggest to the contrary.

Despite the promises made after World War II to eliminate the commission of atrocities, crimes against humanity persist with horrifying ubiquity. Yet the absence of a consistent definition and uniform interpretation of crimes against humanity has made it difficult to establish the theory underlying such crimes and to prosecute them in particular cases. In the 1990s, several ad hoc international criminal tribunals were established to respond to the commission of atrocity crimes,1 including crimes against humanity, in specific regions of the world in conflict. Building on this legacy, in 1998 a new institution—the International Criminal Court(ICC)— was established to take up the task of defining crimes against humanity and other atrocity crimes and preventing and punishing their commission.

The disagreements among states bordering the South China Sea pose extraordinarily complex legal issues. Sovereignty over small islands that lie at some distance from the continental and insular coasts that surround the sea is contested. So are the maritime entitlements generated by these features. Notably, rocks that cannot sustain human habitation or economic life of their own generate no entitlement to an exclusive economic zone (EEZ) and continental shelf beyond a twelve-mile territorial sea, which may be the case for many of the disputed islands. Yet another series of questions relates to the delimitation of overlapping maritime entitlements, including the relative effect to be accorded entitlements generated by these small islands vis-à-vis those generated by the continental and insular coasts that surround the South China Sea.

The October 2012 issue of the Journal carried a Note by Daniel Bethlehem with the author’s proposal for a set of principles on the scope of a state’s right of self-defense against an imminent or actual armed attack by nonstate actors. The Editors’ Note to that item indicated that critiques of the proposal and other responses would be published in a subsequent issue of the Journal. Four such responses are presented here; the July 2013 issue will carry a continuation of the debate.

In August we learned of the passing of Detlev Vagts, our colleague, mentor, and friend, and this Journal’s co-editor in chief from 1993 to 1998 with Judge Theodor Meron. Fortunately, Vagts lived to hear not only praise for his life devoted to scholarship, teaching, and academic administration at the Harvard Law School but also expressions of gratitude for his service to his country and to this Journal. In addition, his former students honored him during his lifetime with a Festschrift of insightful essays, providing a complete list of his publications and valuable perspectives on his career.

In a recent issue of this Journal, Daniel Bethlehem proposed a set of principles on the scope of a state’s right of self-defense against an imminent or actual armed attack by nonstate actors. In response, this essay seeks to assess Bethlehem’s proposition in principle 12 that a state may use force against nonstate actors on the territory of another state without the consent of the territorial state when the territorial state is not responsible for the initial attack and when the attack cannot be imputed to the territorial state. This description might be termed the non-consenting innocent state problem.

The Supreme Court’s ruling in Kiobel v. Royal Dutch Petroleum Co. disfavors American corporations. While largely unshackling foreign corporations from the risk of being haled before an American court to answer for human rights abuses abroad, the decision keeps American corporations constrained by human rights law. This inconsistency exists because application of the Alien Tort Statute (ATS), as announced in Kiobel, turns on whether a corporation’s actions “touch and concern” the United States. American corporations are simply far more likely to satisfy that standard than foreign corporations.

Daniel Bethlehem’s note on self-defense principles is intended to stimulate debate on one of the most contentious issues facing the international community today, namely, the legal response to imminent or actual terrorist attacks by nonstate actors. The note contains a set of principles that are sensitive to the practical realities of the circumstances that it addresses. But it is also intended to take up a legal policy matter—to create or amend principles of international law related to the use of armed force in dealing with threats from nonstate actors. To create or amend these principles, there must be clear evidence and sufficient state practice, or at least opinio juris, pointing toward the change of existing rules or the creation of new rules to “fill the gap.” The whole balance in international law among the various rights, obligations, and interests of international actors will be compromised if the notion of self-defense is to be expanded beyond its legitimate limitations. As illustrated below by some basic examples drawn from the existing law of self-defense, there is sufficient flexibility in the current legal order to allow for the lawful exercise of self-defense in response to most situations of armed terrorist attacks.

The South China Sea has generally been a calm area of sea since ancient times. Until the late twentieth century, it had provided a fertile fishing ground for local fishermen from China and other littoral states, and a smooth route of navigation for the nations of the region and the rest of the international community. This tranquility has been disturbed, however, by two recent developments. The first was the physical occupation of the Nansha, or Spratly, Islands by some of the coastal states in the 1970s. This process continued through the rest of the century. Now, nearly all the islands and insular features within the Spratly Islands have been subjected to physical control by one littoral state or another.

Daniel Bethlehem’s proposed principles grapple bravely with the familiar tension between law and power, between the aspirational and the real, between states’ words and irreconcilable acts. His principles “are proposed with the intention of stimulating a wider debate on these issues.” With that invitation in mind, I offer this thought: while Bethlehem posits a need for objectivity—by which he appears to mean neutral principles indifferent to power disparities—his proposed principles nonetheless substitute the opinio juris of the powerful for the practice of all, and they aim to bridge a division among states that he supposes merely to be a division among publicists.

I am pleased to provide a brief response to the comments in the pages of this Journal on my note on self-defense principles and to welcome those comments, as well as others, as contributing to the kind of debate that publication of the principles hoped to achieve. I do not agree with much that has been said but am pleased that the public debate has been joined.

Daniel Bethlehem has proposed a series of principles relating to a state’s use of military force against nonstate actors (NSAs). He believes that his proposals will lead to the formulation of a “clear set of principles that effectively address the specific operational circumstances faced by states.” While Bethlehem’s intentions may be laudable, his effort is founded on the misconception that the international legal system lacks sufficiently clear principles to govern the use of military force against NSAs. The system already has such principles, as this comment will show.

The U.S. Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum Co. has not ended future debate about the scope and impact of the Alien Tort Statute (ATS). But the Kiobel Court did resolve at least one issue with surprising unanimity: both the opinion for the Court by Chief Justice John Roberts and the main concurring opinion by Justice Stephen Breyer refused to interpret the ATS as authorizing universal jurisdiction. All nine justices rejected decades of lower-court precedent and widespread scholarly opinion when they held that the ATS excluded cases involving purely extraterritorial conduct, even if the alleged conduct constituted acts that are universally proscribed under international law.

The recent turmoil created by the competing sovereignty claims of several countries over islands and waters in the South China Sea has caused the resurgence of the concept of “historic rights.” Although the term historic rights (sometimes confusingly used in this context in combination with other germane notions, such as historic waters and historic title) has often been imbued with a certain degree of confusion and controversy in international law, it seems bound to play an important part inthe arguments brought by states claiming sovereignty in this region and, in particular, by the People’s Republic of China (China). The vagueness of the legal terminology used by China raises the issue of whether that very vagueness is being used as an element of political strategy.