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: 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.

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