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.

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 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.

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.

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.

Just as a newspaper must separate its reporting from its editorials, legal scholarship must distinguish between representations of what the law is and what the author might like it to be. Daniel Bethlehem’s proposed principles and his arguments in support of them are an amalgam of the two that, if actualized under international law, would reverse more than a century of humanitarian and human rights progress: they would undermine the general prohibition against the use of force in international relations as well as the right to life and the scope of a state’s obligation of due process in the deprivation of life.

Daniel Bethlehem has set down sixteen principles relevant to the scope of a state’s right of self-defense against an imminent or actual armed attack by nonstate actors “with the intention of stimulating a wider debate.” While these principles “are published under [the author’s] responsibility alone,” they have “nonetheless been informed by detailed discussions over recent years with foreign ministry, defense ministry, and military legal advisers from a number of states who have operational experience in these matters.”

On November 19, 2012, the International Court of Justice rendered its judgment in a dispute involving territorial and maritime claims raised by Nicaragua against Colombia in the Caribbean Sea. The Court considered Nicaragua’s requests for a declaration of Nicaraguan sovereignty over seven disputed maritime features and delimitation of a single maritime boundary between the continental shelves and exclusive economic zones appertaining to Nicaragua and Colombia. The Court awarded all disputed territory to Colombia and delimited the maritime boundary between the states’ continental shelves and exclusive economic zones by using a novel mix of weighted base points, geodetic lines, parallels of latitude, and enclaving.

On December 15, 2012, the International Tribunal for the Law of the Sea (Tribunal or ITLOS) ordered Ghana to resupply and, upon payment of security, to refuel and release the Argentine naval frigate ARA Libertad, which was being held by authorities in the Ghanaian port of Tema. The Tribunal ordered release of the vessel in response to Argentina’s request for provisional measures under Article 290(5) of the United Nations Convention on the Law of the Sea (Convention or UNCLOS). The Tribunal accepted Argentina’s prima facie showing that the Libertad, a tall, three-masted sailing ship commissioned in the Argentine Navy being used as a training vessel for officer cadets, qualifies as a “warship” under Article 29 of UNCLOS, and was therefore entitled to immunity and release to avoid irreparable harm to Argentina pending the final outcome of the case (paras. 93–95).

In the judgment Pringle v. Ireland, the full Court of Justice of the European Union (Court or ECJ) upheld the validity of the decision of the European Council enabling the simplified amendment of the Treaty on the Functioning of the European Union(TFEU). In its Decision 2011/199/EU, the Council had provided for the establishment of a permanent European Stability Mechanism (ESM) by those member states of the European Union (Union or EU) that had adopted the euroas their common currency and legal tender. The Court also found in this judgment that those member states had not violated EU law by negotiating and concluding the Treaty Establishing the European Stability Mechanism (ESM Treaty). The Court based the latter finding on the long-awaited clarification of the scope and content of the TFEU’s “no-bailout clause” (Art. 125(1)), which had been the subject of intense controversies among legal scholars, in particular in Germany.

In a unanimous judgment in the case Hirsi Jamaa v. Italy, the Grand Chamber of the European Court of Human Rights (Court) held that Italy’s “push back” operations interdicting intending migrants and refugees at sea and returning them to Libya amounted to a violation of the prohibition of torture and other inhuman or degrading treatment under Article 3 of the European Convention on the Protection of Human Rights and Fundamental Freedoms (ECHR or Convention), the prohibition of collective expulsions under Article 4 of Protocol 4 to the Convention, and the right to an effective remedy under Article 13 of the Convention. Hirsi Jamaa is the Court’s first judgment on the interception of migrants at sea and it addresses issues concerning the 1982 United Nations Convention on the Law of the Sea and the 1979 International Convention on Maritime Search and Rescue, as well as the 1951 Convention Relating to the Status of Refugees.

On April 26, 2012, Trial Chamber II (Chamber) of the Special Court for Sierra Leone (Special Court or Court) in The Hague convicted former Liberian president Charles Ghankay Taylor of crimes against humanity and war crimes committed from November 30, 1996, to January 18, 2002, in the territory of Sierra Leone during its civil war. Specifically, Taylor was found guilty of the crimes against humanity of murder, rape, sexual slavery, enslavement and other inhumane acts, and the war crimes of committing acts of terror, murder, outrages upon personal dignity, cruel treatment, pillage, and conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities. In a separate judgment rendered on May 30, 2012, the Chamber sentenced Taylor to a single term of fifty years for all the counts on which the accused had been convicted.