This article analyses the European Union's competences in the energy sector. It focuses on Article 194(2) of the Treaty on the Functioning of the European Union, which affords EU Member States the right to determine the conditions for exploiting their energy resources, the choice between different energy sources and the general structure of their energy supply. This article traces the constitutional development of EU competences in the energy sector to demonstrate the relevance of Article 194(2) TFEU in the current constitutional, international and sector-specific contexts of EU energy law. It analyses the recent case law of the Court of Justice of the European Union, which shows that the scope of Article 194(2) TFEU is considerably narrower in practice than its wording implies. The article concludes by evaluating the implications of this narrow interpretation on the future development of EU energy law and, in a broader context, on the reach of EU energy and climate policy.

This article argues that State autonomy in setting the level of protection for permissible regulatory aims can be better operationalised in the investment treaty regime. The article draws on comparative insights from WTO law, where it is established that WTO members have the right to determine the level of protection for permissible regulatory aims, although significant disciplines are placed on the means used to achieve those aims. It is then argued that investment treaties are, properly interpreted, consistent with the idea that States retain autonomy to determine the level of protection for permissible regulatory aims. Finally, the article proposes removing from the fair and equitable treatment and indirect expropriation standards proportionality balancing stricto sensu, as this undermines State autonomy in setting the level of protection. Overall, this article argues for a partial reorientation of investment law, in which non-discriminatory measures that pursue a permissible regulatory aim, including at a particular level, should not amount to a breach of a treaty where a State uses the means that involve the least possible restriction of the competing interests protected by relevant investment treaty obligations.

This article examines the notion of judicial takings in international law and its reflection in the practice of investment tribunals. It takes stock of the already significant body of arbitral jurisprudence dealing with expropriation claims grounded in, or relating to, the acts or omissions of courts, with a view to developing a coherent theory of judicial expropriations. It is suggested that, due to the courts’ specific role in the determination of the underlying proprietary rights that are the very object of international legal protection, judicial measures warrant different conceptual treatment from measures by other State organs. Traditional approaches to expropriation analysis do not take this sufficiently into account and therefore do not provide adequate tools for distinguishing legitimate judicial measures from undue interferences with investors’ rights. It is argued that a sui generis approach is hence needed: where proprietary rights are primarily affected by the impugned judicial action, it is first necessary to determine whether such action is itself wrongful under international law, for only then can it be treated as an act of expropriation. However, the proper analytical approach will ultimately depend on the circumstances of each case and traditional approaches, such as the sole effects doctrine, may still be appropriate where the judicial injury actually flows from wrongful legislative or executive conduct.

How was ‘international trade’ between former European empires and their former colonies in Africa governed after decolonisation? In the 1960s, the vast majority of African countries became independent, and so a new arrangement was necessary to govern their economic relations with Europe. The Yaoundé Conventions were then concluded between the European Community (EC) and the bloc of postcolonial African countries. Specialised literature provides comprehensive accounts of the Yaoundé Conventions. However, little is known about the role of law and lawyers in their making and governance. Part of this story concerns political and intellectual struggles in the legal profession about which projects, ideas, and norms would be applicable. Another part concerns the work of lawyers to organise those policies, theories and visions into an emerging conception and to employ it to influence the production and management of the Yaoundé Conventions. This article combines historical and socio-legal approaches to show that a distinct legal conception of regional trade agreements—called here the ‘development framework’—was pivotal to the design and application of the Yaoundé Conventions. This conception was primarily advanced and persuasively used by European and African lawyers. This contrasts with the conventional view that trade agreements are variations on a single legal concept. It is concluded that EC–Africa regionalism was a singular experiment, due significantly to the unique features of this legal conception.

Australia became the first country to introduce standardised or plain packaging laws for tobacco products in 2011. However, they immediately came under direct and indirect challenge from the tobacco industry in various domestic and international fora, including at the World Trade Organization (WTO). The WTO-consistency of Australia's measures was not settled until June 2020, when the Appellate Body upheld two WTO panels’ earlier findings that Australia had acted consistently with its obligations under certain WTO agreements. This article critically analyses the Appellate Body's key findings and their implications for implementing other public health measures. It is shown that these implications are multifaceted, have political, practical and legal dimensions and are likely to reach beyond the WTO dispute resolution system's bounds into other international trade and investment law contexts.

International courts are increasingly called upon to adjudicate socially divisive disputes. They are therefore exposed to a heightened risk of backlash that questions their authority and impedes the implementation of their judgments. This article puts forward an analytical framework for mapping the resilience techniques used by international courts to counter this growing resistance. Case studies involve the Court of Justice of the European Union, which has been cautious in its stance regarding democratic backsliding in Hungary and Poland, and the Caribbean Court of Justice, which has engaged in legal diplomacy while adjudicating both on the land rights of indigenous groups and on Lesbian Gay Bisexual Transgender Queer and Intersex (LGBTQI) rights. It is argued that, in order to effectively avoid and mitigate backlash, international courts should deploy resilience techniques that go beyond merely exercising their judicial function. The successful deployment of resilience techniques can allow international courts to become significant actors in global governance during a time of crisis for the international liberal order.

This article examines the rejection of the International Investor–State dispute (ISDS) system across the African continent and its replacement with a range of domestic and regional alternatives. It assesses the advantages of the two principal options for African countries: retaining the current ISDS system, or using local courts and regional tribunals. To this end, the dispute resolution mechanisms proposed in the Pan-African Investment Code, the 2016 Southern African Development Community Finance and Investment Protocol, the SADC model BIT, the Common Market for Eastern and Southern Africa, Economic Community of West African States and East African Community investment agreements and domestic approaches are critically examined. The argument is then advanced that African countries should not abandon ISDS because replacing it with isolated domestic or regional mechanisms does not reduce any of the risks. In particular, for foreign investors, the risk associated with the adjudication of investment disputes in potentially biased, politically influenced domestic courts may prove too high. African host nations, in turn, risk sending out the wrong message concerning their commitment to the protection of foreign investments. Instead of veering off course, perhaps the time has come for African States to display the political will to remain within the ISDS system and contribute to its reform from within.

It is often noted that few States recognize the seven national claims to Antarctic territory. Australia, one of the claimants, asserts title over 42 per cent of the continent and yet only four States have recognized its claim. Some States have expressly rejected Australia's claim. This article examines the legal significance of such widespread non-recognition. It does so through interrogating the evolution of the legal regime of territorial acquisition, its historical function and application to Antarctica, and relevant decisions of international courts and tribunals. The article identifies, and distinguishes amongst, several categories of non-recognition and considers the relevance of each. The analysis finds that the seemingly meagre level of recognition of Australia's title to the Australian Antarctic Territory does not detract from the validity of that title. This article points to possible reasons as to why a number of polar scholars may have suggested otherwise.

The UK Supreme Court's decision in Belhaj v Straw defined foreign affairs non-justiciability and unearthed its constitutional foundations. However, two decisions since Belhaj—High Commissioner for Pakistan v Prince Muffakham Jah and The Law Debenture Trust Corpn plc v Ukraine—have called Belhaj into doubt, narrowing non-justiciability to give effect to ordinary private law rights. This article analyses these decisions and argues that their general approach of subjecting issues involving transactions between sovereign States to private international law's framework is desirable, because the constitutional foundations of non-justiciability identified in Belhaj are shaky. Yet, it is suggested that private international law itself may require courts to exercise judicial restraint on these issues, given its goal of upholding the efficient resolution of international disputes in appropriate fora.

Analyses related to the Covid-19 pandemic have mainly addressed measures adopted in response to this event without paying attention to provisions included in the 2005 International Health Regulations which require States to develop predefined core capacities to prevent, control and provide a public health response to the international spread of disease. The legal architecture related to these obligations has, however, various shortcomings and States have largely failed to implement the required measures. Only recently has some practice been developed by the WHO to address these deficiencies, and further action is still required to finally implement this (neglected) cornerstone of the global health system.

This article examines the developments on future action concerning the 2001 ILC Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA) in the Sixth Committee of the UN General Assembly. It reviews the past 20 years, from the presentation of the final draft at the 56th session in 2001, to the most recent debate at the 74th session in 2019. In scrutinising the procedural actions taken over the relevant period, it argues that the ARSIWA have ossified in the Sixth Committee even as they have continued to gain authority through application in practice. This ossification is due not only to divisions amongst delegations on future action but also to disagreements on a select number of provisions. Whilst these substantive issues have narrowed, debate is made fruitless by entrenched positions that do not take account of the application of the ARSIWA in practice.

This article analyses the decisions of Belgian and Dutch courts concerning the repatriation of the family members of foreign fighters who are now detained in dire conditions in North-East Syria. The article shows that, under international law, these women and children have no individual right to be repatriated by their State of nationality, based on either consular assistance, the extraterritorial applicability of human rights treaties, or the right of return to one's own country. Nonetheless there are good reasons why States should exercise their prerogative to repatriate.

Adopted in October 2020, the Artemis Accords are a set of 13 provisions establishing a principled framework for the sustainable human exploration of the Moon and the other celestial bodies, including the exploitation of their natural resources. This article examines the extent to which the Artemis Accords comply with international law and international standards. It argues that, while rooted on the provisions of the Outer Space Treaty, the Artemis Accords introduce a significant innovation in international space law by replacing the anticipatory approach to the regulation of outer space activities with the staged principle of adaptive governance.