Kulick: Constitutional Review of Investment Treaties by the European Court of Justice

Andreas Kulick (Eberhard Karls Universität Tübingen - Law) has posted Constitutional Review of Investment Treaties by the European Court of Justice (in The Rise of Domestic Courts in International Investment Law, C Brown, M Jarrett, & SW Schill eds., forthcoming). Here's the abstract:

The review of investment treaties by the Court of Justice of the European Union (CJEU) tells a story of inconsistency. As is well known, the Court rejected investor-state dispute settlement (ISDS) in the form of ad hoc arbitration in Achmea and Komstroy – and accepted it in the Investment Court System (‘ICS’) variety of the Canada-EU Free Trade Agreement (‘CETA’) in its Opinion 1/17. Taking a closer look at the various lines and subplots of this story, however, reveals three common themes. First, the CJEU’s review of investment treaties is a constitutional review not only in name but also in substance. It charges the law of internal and external EU commercial relations with the ‘values’ of Art. 2 TEU and thus introduces a ‘thick constitutionalism’ to this otherwise seemingly unspectacular area of EU policy: The Court does not merely insist on a review that may be characterized as constitutional in form – based on normative hierarchy and setting a floor and a ceiling to what is compatible with EU law. It also insists that it is tasked to protect the ‘values’ of the Union and makes them doctrinally operational by way of its – self-styled – role as exclusive guardian of the EU legal system. Second, such ‘thick constitutionalism’ provides an explanation for the doctrinal inconsistency in the Court’s jurisprudence. Promoting the ‘values’ of Art. 2 TEU in EU external relations requires a strategy of Voice, rather than Exit – and Opinion 1/17 enables the Commission and the Member States (in mixed agreements) to exercise such voice. Third, the impact of such ‘thick constitutionalism’ and the CJEU’s intention to provide the EU with Voice in its external economic relations vis-à-vis ISDS has repercussions regarding the Union’s agenda and wriggle-room in the current debates on ISDS reform in UNCITRAL Working Group III and in its current and future treaty practice.

Part II briefly recounts the main plot of this story, marking three milestones in the development of the CJEU’s case law thus far. In Part III, I will analyse and assess the Court’s jurisprudence with respect to the constitutional stakes it raises (III.1.) and regarding the different strategy it employs in order to ‘integrate’ the Union’s values also into its external commercial relations (III.2.). Part IV discusses how the Court’s ‘thick constitutionalism’ may impact the future of ISDS, both regarding the institutional and procedural matters as well as with respect to the substance of international investment agreements (‘IIAs’). Part V concludes.

Wentker, with Jackson & Hill-Cawthorne: Identifying co-parties to armed conflict in international law: How states, international organizations and armed groups become parties to war

Alexander Wentker (Max Planck Institute for Comparative Public Law and International Law), with Miles Jackson (Univ. of Oxford - Law) & Lawrence Hill-Cawthorne (Univ. of Bristol - Law) have posted Identifying co-parties to armed conflict in international law: How states, international organizations and armed groups become parties to war (Chatham House Research Paper 2024). Here's abstract:

States have often relied on each other’s support to wage wars. But, as military technology advances, contemporary armed conflicts are increasingly characterized by complex patterns of cooperation involving states, international organizations and non-state armed groups. These patterns make it difficult to identify who among the cooperating partners qualifies as a party to conflict – referred to in this research paper as co-parties. But that status has significant legal consequences in the regulation of armed conflict. The need for clarity around co-party status has therefore never been greater.

This research paper aims to provide a roadmap to establish who is party to an armed conflict and the legal implications of that finding. The paper draws on illustrative examples from both recent and current conflicts to analyse what co-party status means and how parties to armed conflicts are identified as a matter of international law.

AJIL Unbound Symposium: Ownership in the Deep Seas

AJIL Unbound has published a symposium on “Ownership in the Deep Seas.” The symposium includes an introduction by Julian Arato, Aline Jaeckel, and Lucas Lixinski, and contributions by Pradeep Singh and Aline Jaeckel, Lucas Lixinski, Erick Guapizaca Jiménez, Surabhi Ranganathan, Elisa Morgera, and Viren Mascarenhas.

New Issue: Journal of International Criminal Justice

The latest issue of the Journal of International Criminal Justice (Vol. 21, no. 5, December 2023) is out. Contents include:

• Special Issue: Autonomous Weapon Systems and War Crimes
• Paola Gaeta & Marta Bo, Introduction
• Dustin A Lewis, War Crimes Involving Autonomous Weapons: Responsibility, Liability and Accountability
• Guido Acquaviva, Crimes without Humanity? Artificial Intelligence, Meaningful Human Control, and International Criminal Law
• Abhimanyu George Jain, Autonomous Weapon Systems, Errors and Breaches of International Humanitarian Law
• Paola Gaeta, Who Acts When Autonomous Weapons Strike? The Act Requirement for Individual Criminal Responsibility and State Responsibility
• Marta Bo, Criminal Responsibility by Omission for Failures to Stop Autonomous Weapon Systems
• Antonio Coco, Exploring the Impact of Automation Bias and Complacency on Individual Criminal Responsibility for War Crimes
• Anna Rosalie Greipl, Data-driven Learning Systems and the Commission of International Crimes: Concerns for Criminal Responsibility?
• Alessandra Spadaro, A Weapon is No Subordinate: Autonomous Weapon Systems and the Scope of Superior Responsibility
• Thomas Weigend, Convicting Autonomous Weapons? Criminal Responsibility of and for AWS under International Law
• Antonio Cassese, Means of Warfare: The Traditional and the New LawGet accessArrow

New Issue: Chicago Journal of International Law

The latest issue of the Chicago Journal of International Law (Vol. 24, no. 2, Winter 2024) is out. Contents include:

• Taorui Guan, Cooperative Federalism and Patient Legislation: A Study Comparing China and the United States
• Jonathan Horowitz, One Click from Conflict: Some Legal Considerations Related to Technology Companies Providing Digital Services in Situations of Armed Conflict
• Jason Morgan-Foster, International Administrative Tribunals and Cross-Fertilization: Evidence of Nascent Common Jurisprudence?
• M. Veronica Saladino, Enforceability of Choice of Court Clauses in Transnational Agreements: The 2005 Hague Convention, Its Implementation in Contracting States, and the U.S. Approach

Conference: INTERPOL at 100: Improving the Organization's Legal Framework

On April 12, 2024, a conference on "INTERPOL at 100: Improving the Organization's Legal Framework" will be held in the hybrid mode at INTERPOL headquarters in Lyon. More information is here. The program is here. Registration is here.

New Issue: ICSID Review: Foreign Investment Law Journal

The latest issue of the ICSID Review: Foreign Investment Law Journal (Vol. 38, no. 3, Fall 2023) is out. Contents include:

• Lecture
• Claudia Annacker, Fragmentation and Integration in International Investment Law: Plus Ça Change
• Case Comments
• Maria Fanou, Green Power Partners v Spain: Upholding the Intra-EU Objection to Jurisdiction in the ECT Context—A Swerve in the Search for the Line of Two Planes
• Mahnaz Malik, Deutsche Lufthansa AG v Bolivarian Republic of  Venezuela: Am I My Brother’s Keeper?
• Julien Chaisse & Kehinde Folake Olaoye, Zhongshan Fucheng Industrial Investment Co Ltd v The Federal Republic of Nigeria: Special Economic Zones and Investment Treaty Arbitration at Crossroads
• Karel Daele, RSE Holdings AG v Republic of Latvia: When Does Double-Hatting Justify the Disqualification of an Arbitrator?
• Kei Nakajima, Gramercy v Peru: Vintage Sovereign Land Bonds Protected by a New-Generation International Investment Agreement
• Practice Notes
• Baiju Vasani & Olivia Louise Kaye, Hearing Preparation: A Practical Guide for Counsel
• Articles
• Mees Brenninkmeijer & Fabien Gélinas, Counterclaims in Investment Arbitration: Towards an Integrated Approach
• Anuki Suraweera, Shareholder Claims for Reflective Loss in Investor-State Dispute Settlement: Proposing Reform Options for States
• Sondra Faccio, Investment Contracts and the Reform of Investment Arbitration: Towards Sustainability
• Stavros Brekoulakis & Anna Howard, Impartiality and the Construction of Trust in Investor-State Dispute Settlement
• Notes
• Céline Lévesque & Christian Schmid, The 2021 Canadian Model FIPA: More Than Meets the Eye
• Mercédeh Azeredo da Silveira & Yulia Levashova, Economic Sanctions, Countermeasures and Investment Claims against the Russian Federation: A Battle on Multiple Fronts
• Albert Jan van den Berg, Does an Annulled Award Constitute Legal Authority in Investment Arbitration?

New Issue: International Peacekeeping

The latest issue of International Peacekeeping (Vol. 31, no. 2, 2024) is out. Contents include:

• Geraldine Rosas Duarte & Matheus Souza, Illiberal Peacebuilding in UN Stabilization Peace Operations and Peace Agreements in the CAR, the DRC and Mali
• Miguel Mikelli Ribeiro & Antonio Pires, Mass Atrocities, Peace Operations, and the UNSC: How Responsive is the UN Security Council to Atrocity Events through Peacekeeping Mandates?
• Sanam & Muhammad Arshad, Estimating the Cost of Positive Peace
• Marie Olson Lounsbery & Karl DeRouen Jr., Are Non-Inclusive Peace Agreements Effective Counter-Insurgency Strategies?

Hak: Image-Based Evidence in International Criminal Prosecutions: Charting a Path Forward

Jonathan W. Hak has published Image-Based Evidence in International Criminal Prosecutions: Charting a Path Forward (Oxford Univ. Press 2024). Here's the abstract:

The use of image-based evidence in international criminal prosecutions is at a tipping point. In his pioneering book on the topic, Jonathan W. Hak, KC provides critical insight into the authentication and interpretation of images, setting out how images can be effectively used in the search for the truth. While images can convey vital information more efficiently and effectively than words alone, the biases of photographers, the use of image-altering technology, and the generation of images with artificial intelligence can lead to mischief and injustice. In this context, images must be effectively authenticated and interpreted to establish their true meaning.

Addressing the growing need for visual literacy, Jonathan W. Hak's Image-Based Evidence in International Criminal Prosecutions systematically explores the value of images as probative and didactic evidence in international criminal law. It analyses existing challenges in the creation, acquisition, processing, and use of image-based evidence, making recommendations for how those challenges might be addressed. In particular, the book investigates emerging technical frontiers in image-based evidence and the potential uses for advanced visual representations like virtual reality, immersive virtual environments, and augmented reality. Ultimately, the book argues that advanced visual representations may have sufficient probative value and proposes cautious parameters for their application in the international courtroom.

New Issue: Archiv des Völkerrechts

The latest issue of Archiv des Völkerrechts (Vol. 61, no. 4, 2023) is out. Contents include:

• Nachruf
• Anja Seibert-Fohr, Thomas Buergenthal (1934–2023)
• Abhandlungen
• Shu-Perng Hwang, Von der Verrechtlichung zur Vervölkerrechtlichung?
• Christina Eckes, Roda Verheyen, & Piotr Krajewski, Treaty-Making by Afterthought
• Kristin Y. Albrecht, Der Wert der Natur im Völkerrecht
• Patrick R. Hoffmann, Das Staatsangehörigkeitsrecht im Lichte von Art. 8 EMRK

New Issue: Rivista di Diritto Internazionale

The latest issue of the Rivista di Diritto Internazionale (Vol. 107, no. 1, 2024) is out. Contents include:

• Articoli
• Alessandra Gianelli, Le conseguenze dell'aggressione sul regime di neutralità
• Khrystyna Gavrysh, La circolazione probatoria nella giustizia penale internazionale (judicial notice)
• Olivia Lopes Pegna, L'accertamento della «competenza internazionale» del giudice straniero ai sensi della legge n. 218/1995
• Note e Commenti
• Eleonora Castro, L'applicazione provvisoria dei trattati da parte dell'unione europea
• Emanuele Cimiotta, Invio di armi e munizioni dall’Italia all’Ucraina, legislazione nazionale e trattato sul commercio delle armi
• Fulvio Maria Palombino & Rosario Salvatore Aitala, La corte costituzionale nel processo Regeni: l'efficacia espansiva di una pronuncia storica
• Marcella Ferri, Il sindacato della corte di giustizia in materia di cittadinanza nazionale