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 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.

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.

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.

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.

The Board of Editors is pleased to announce that the Francis Deák Prize for 2012 was awarded to Robert D. Sloane for his article entitled On the Use and Abuse of Necessity in the Law of State Responsibility, which appeared in the July 2012 issue.

The prize was established by Philip Cohen in memory of Dr. Francis Deák, an international legal scholar and lifelong member of the American Society of International Law, to honor a younger author who has published a meritorious contribution to international legal scholarship in the American Journal of International Law.

The Nominating Committee of the American Journal of International Law’s Board of Editors invites nominations for members of the Board of Editors to be elected in the spring of 2014. Nominations are based primarily on scholarship and creativity, as demonstrated in books, articles, and other written work appearing over a period of years. Other factors taken into account include areas of expertise or professional perspective or discipline.

On April 3, 2013, Professors Lori Fisler Damrosch and Bernard H. Oxman completed ten years of service as editors in chief. At the 107th Annual Meeting of the American Society of International Law, Professors Damrosch’s and Oxman’s ten years of service to the Journal were celebrated. The Board of Editors, like the Society as a whole, is profoundly grateful to the outgoing editors for their devotion to the Journal and its exacting standards for scholarship.

The International Court of Justice rendered four judgments in 2012: on February 3, a ruling on the merits in Jurisdictional Immunities of the State (Germany v. Italy; Greece intervening), finding that Italy had violated its obligations under customary international law and requiring Italy to ensure that the decisions of its judicial authorities that infringed Germany’s immunities would cease to have effect; on June 19, a ruling on the compensation owed by the respondent in Diallo (Guinea v. Democratic Republic of the Congo), awarding Guinea $85,000 for non material injury to Diallo and $10,000 for material injury to his personal property;on July 20, a ruling on jurisdiction, admissibility, and the merits in Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), finding jurisdiction and admissibility, and holding that Senegal had breached its obligations under Articles 6 and 7 the UN Convention Against Torture (CAT); and on November 19, a ruling on admissibility and the merits in Territorial and Maritime Dispute (Nicaragua v. Colombia), finding admissible one of Nicaragua’s final submissions(which Colombia had challenged as a new claim), deciding that Colombia has sovereignty over a number of contested maritime features, and establishing a single maritime boundary delimiting the continental shelf and exclusive economic zones of the two countries.

The U.S. Supreme Court has finally decided Kiobel v. Royal Dutch Petroleum Co. It is the Court’s second modern decision applying the cryptic Alien Tort Statute (ATS), which was enacted in 1789. Since the 1980 court of appeals decision in Filartiga v. Pena-Irala permitting a wide of range human rights cases to go forward under the statute’s auspices, the ATS has garnered worldwide attention and has become the main engine for transnational human rights litigation in the United States. The statute itself and the decisions that it generates also serve as state practice that might contribute to the developing customary international law of civil universal jurisdiction, immunity for defendants in human rights cases, the duties of corporations, and the right to a remedy for violations of fundamental human rights. During the 1990s, the ATS became the focal point for academic disputes about the status of customary international law as federal common law. Indeed, to the extent that the “culture wars” have played out in U.S. foreign relations law, the ATS has been their center of gravity.

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.

On December 8, 2011, the Japanese Supreme Court decided that the accession to a multilateral treaty by a state not recognized by Japan cannot create obligations between Japan and that state except with respect to obligations of universal value under general international law. The case arose in the specific context of the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention) but has broader implications for the operation of multilateral treaties in general.

In August 2012, the First Criminal Division of the Court of Cassation (Supreme Court or Court), the highest Italian domestic court, issued a judgment upholding Germany’s sovereign immunity from civil claims brought by Italian war crime victims against Paul Albers and eight others in the Italian courts (Albers). In so doing, the Court overruled its own earlier decisions and also reversed the judgment of April 20, 2011, by the Italian Military Court of Appeal (Military Court), which had upheld such claims relating to war crimes committed by German forces in Italy during World War II. With this ruling, the Court of Cassation put an end to its decade long effort to find an exception to the well-known rule of customary international law providing for sovereign immunity from foreign civil jurisdiction for acts jure imperii. This revirement resulted from the Court’s decision to give effect to the judgment of the International Court of Justice (ICJ) in Germany v. Italy.

In three cases decided on the same day, the French Court of Cassation held that the provisional attachments of funds belonging to the Republic of Argentina by NML Capital Ltd. (NML) were void on the ground of sovereign immunity from enforcement because the funds were intended to finance state noncommercial activities and had not been subject to an express waiver of immunity by Argentina. These cases are the first judicial application by the Court of Cassation of the 2004 United Nations Convention on Jurisdictional Immunities of States and Their Property (2004 UN Convention), which France signed on January 17, 2007, and ratified on June 28, 2011.

In the first criminal piracy decision by a United States court in nearly a century, the U.S. Court of Appeals for the Fourth Circuit ruled that the federal piracy statute’s reference to the “law of nations” explicitly ties the scope of the offense to evolving customary international law definitions of the crime. The court went on to find that under current customary and treaty law, attempted piracy falls within the scope of the international crime. In doing so, it joined several courts in nations around the world that have confronted the issue as a result of the outbreak of Somali piracy that began in 2008.