Athena – Critical Inquiries in Law, Philosophy and Globalization

New Order or World Disorder? Research Project

Gustavo Gozzi, Rossana Deplano, Alberto Artosi — Wed, 27 Dec 2023 00:00:00 +0100

Introduction: Looking Forward

Susanna Cafaro — Wed, 27 Dec 2023 00:00:00 +0100

Transnational European Public Spaces and EU Democracy

Francesca Martines — Wed, 27 Dec 2023 00:00:00 +0100

This paper aims to develop some considerations on transnational European public spaces and their contribution to the refinement and development of democratic principles within the European supranational legal order. The notion of transnational European public space adopted in this paper, which it is distinguished from the idea of a European Public sphere, is that of a mainly virtual space (although EU Panels have been included) created by EU Commission and Parliament where citizens from all EU Member States have the opportunity to engage in activities that are mostly related to EU decision-making. These spaces are of particular interest when they give EU citizens the opportunity to make their voices heard and publicly exchange views on all areas of EU action, and when they contribute, albeit in a limited way, to strengthening principles such as transparency, participation and control that are crucial in the democratic life of a polity.

Potentialities and Margins for Improvement of the European AI Alliance, an Example of Participatory Democracy in the Field of AI at EU Level

Gabriele Rugani — Wed, 27 Dec 2023 00:00:00 +0100

This contribution focuses on the dialogue with stakeholders in drafting EU acts in the field of AI, with particular reference to the so-called “European AI Alliance”, which can be defined as the best example of “participatory democracy in the field of AI on European level”. After understanding what the AI Alliance is and how it works, and after making some considerations on its nature, the paper focuses on its role in the context of the drafting of EU acts, such as the Ethics Guidelines for Trustworthy AI and the AI Act Proposal. In the end, it will be possible to make some conclusive remarks and to formulate some suggestions, concerning the future of the AI Alliance and the need to exploit and improve it also, and especially, after the (eventual) adoption of the AI Act and of the other legislative proposals currently under discussion.

Could the European Court of Justice be a Decisive Player in Climate Justice?

Aude Bouveresse — Wed, 27 Dec 2023 00:00:00 +0100

The article aims to assess to which extent the European Court of Justice (ECJ) is able to play an effective role in climate change justice. While some national courts are trying to respond to one of the greatest challenges of our time, which is requiring them to reinvent their role, the ECJ is maintaining a very for-malistic approach that raises questions about its capacity to respond to these new challenges. The key question is whether, although the ECJ faces both procedural and substantive limitations, it has legal in-struments available to overcome them as well as the legitimacy. To that end, the article analyses the limits of individual access in environmental disputes in front of ECJ and tests the justifications ad-vanced. On the one hand, the European judge would appear to be best placed to take action on such an issue, in accordance with functionalist theories of integration: a transnational problem (climate change) must be resolved at the transnational level. Notably, in the past, when the will of Member States has been defective, the ECJ could be relied upon to advance action on a Europe-wide scale. Therefore, when it comes to climate change, its authority could be undermined if it maintains a formalistic approach to such a major societal issue. On the other hand, a less formalistic approach would require the European judge to accept, more broadly, private, and even transgenerational, claimants into its courtroom, so that it can become a new space for activist dialogue. Should, and can it be the guardian of agonistic democracy without doing judicial activism? As a result, the article suggests that by applying a climate justice lens, European judges could push the boundaries of existing law to address climate change more comprehensively, by exploring the potential of the European values, enshrined in Article 2 of TEU which could give substance to a subjective right of a clean, healthy, and sustainable environment.

Litigating Climate Change Mitigation and Adaptation in Investment Dispute Resolution

Carlo de Stefano — Wed, 27 Dec 2023 00:00:00 +0100

International investment agreements (IIAs) may protect in principle every kind of foreign direct investment (FDI), including “brown” and “green” FDI. This means that potentially polluting multinational enterprises may be protected by IIAs and benefit from the right to sue States for the enactment of measures adopted in furtherance of climate change action through investor-State dispute settlement (ISDS). While this is not preferable under a policy perspective, various legal techniques may provide important “entry points” through which the lex climatica – international climate change treaties, such as the United Nations Framework Convention on Climate Change (UNFCCC) of 9 May 1992 and the Paris Agreement of 12 December 2015, and implementing municipal laws – may be successfully integrated in the lex mercatoria – IIAs. Such techniques pertain to investment treaty drafting (recognition of the States’ right to regulate, general exceptions, express environmental carve-outs and provisions establishing investors’ commitments), procedural issues (jurisdictional requirements, admissibility filters and viability of States’ counterclaims) and substantive matters (treaty interpretation and applicable laws). Notably, IIAs must be interpreted pursuant to systemic integration as required by Article 31(3)(c) of the Vienna Convention on the Law of Treaties (VCLT) pursuant to which “any relevant rules of international law applicable in the relations between the parties” “shall be taken into account”. As a result, multilateral treaties addressing climate change do constitute an hermeneutic basis against which adjudicators may asses the breaches of economic treaties under international law. In this respect, the most relevant international instrument appears to be the Paris Agreement with its 196 States membership. The domestic implementation by States of their nationally determined contributions (NDCs) required periodically under Article 4 of the Paris Agreement may provide a parameter of legality of States’ climate change inaction, which would then result to be inconsistent with the applicable IIAs. The recent stipulation of multilateral commitments addressing climate change is relevant also under the lens of dispute resolution. In this respect, the “teeth” provided by IIAs and investor-State dispute settlement (ISDS) to implement the investors’ rights granted by the Parties may be instrumental also to the enforcement of climate change action commitments (in the absence of an arbitration or submission agreement pursuant to Article 24 of the Paris Agreement and Article 14 of the UNFCCC). In this scenario, ISDS may be resorted to by “green” investors to request an international investment tribunal or court to sanction a possible failure by a State in the implementation of binding climate change action.

The Proposed EU Directive on SLAPPs: A (First) Tool for Preserving, Strengthening and Advancing Democracy

Marco Pasqua — Wed, 27 Dec 2023 00:00:00 +0100

The proposed EU Directive on protecting persons who engage in public participation from manifestly unfounded or abusive court proceedings (“anti-SLAPPs Directive”) is the European Union response to fight strategic lawsuits against public participation (“SLAPPs”). The latter are proceedings where the lawsuit legal instrument is misused to silence activists regarding information activities carried out by them in relation to facts of public interest and, finally, to achieve a chilling effect on the entire society. As a result, SLAPPs represent an obstacle to freedom of expression, participation, activism, and ultimately to democracy. Indeed, democracy is the foundation the EU is based on and can only thrive in a climate where freedom of expression is upheld, in line with the European Convention on Human Rights, including its positive obligations under Article 10, and the Charter of Fundamental Rights of the European Union, highlighting the horizontal (and questionable direct effect) dimension of its Article 11. And for a healthy and prosperous democracy, people need to be able to actively participate in public debate without undue interference and to have access to reliable information. Therefore, the proposed anti-SLAPPs Directive aims to safeguard SLAPPs targets and, in so doing, strengthen democracy. The anti-SLAPPs Directive is tested practically to SLAPPs cases which have interested Daphne Caruana Galizia, a blog editor in Malta whose activism led to her being killed in 2017, as well as tested to other SLAPPs affected story lives. A broader comparative/multidisciplinary look at other human rights protection systems and anti-SLAPPs legislations in the world is offered. At the end, from the overall analysis carried out, it emerges that the anti-SLAPPs Directive has a significant potential for the objectives it aims to achieve, but that is not enough: Member States should consider also to address SLAPPs in domestic cases and to decriminalise defamation.

The Palgrave Handbook of the Public Servant

Ran Yi — Wed, 27 Dec 2023 00:00:00 +0100

In an increasingly globalised world, the essential roles and functions that public servants perform are constantly evolving at various levels across different geographical and cultural contexts. This Handbook intends to foster an up-to-date understanding of the evolution of the public servant in different traditions and waves of reform. In particular, it navigates through the emerging actors and new terrains that public servants operate and translate public value into practice. This Handbook contributes to a closer understanding of identities, motivations, values, roles, skills, and positions. It also serves to chart the future courses of development for the public servant with practice-informed and evidence-based research with synthesised insights from practitioners and scholars.

Global Human Rights Sanctions and State Sovereignty: Does the New Tool Challenge the Old Order?

Yifan Jia — Wed, 27 Dec 2023 00:00:00 +0100

Global human rights sanctions (also known as Magnitsky sanctions) regimes target individuals and entities involved in gross human rights abuses. The sanctions measures, including visa bans, transaction restrictions, and asset freezes, are implemented through executive decision-making processes. This article critically analyses the legality of Magnitsky sanctions in relation to the principle of state sovereignty, exploring whether these new transnational legal regimes disrupt the existing international legal order. Given that global human rights sanctions can be employed to address both individual responsibility and state responsibility for human rights violations, this paper scrutinizes the legitimacy of the jurisdiction of these sanctions and evaluates whether they can be justified as countermeasures, respectively. This paper argues that the jurisdiction of sanctions is not in violation of international law. As unilateral measures against states for violating human rights law, Magnitsky sanctions can significantly contribute to the formation of customary international law on third-party countermeasures.

Globalization and AI Data Gathering in/from Outer Space: Building upon Lessons Learned at the European Level

Anthi Koskina, Konstantinos Galinas — Wed, 27 Dec 2023 00:00:00 +0100

Based on the growing use of Artificial Intelligence (AI) ‒capable of gathering an unlimited (in amount and content) number of data, improving its functioning and simplifying tasks‒, humanity appears to be in the midst of a fourth technological revolution. When such activity is conducted in outer space i.e., by fifth generation observation satellites (Fu W. et al. 2020) using AI, capabilities are strongly optimized; however, the activity also seems to pose serious threats to privacy and to industrial or national secrets. As a response to this challenge, AI data gathering on Earth is subject to specific frameworks protecting privacy, both at the upstream and downstream ends, such as in the case of the EU. Unfortunately, the rules established therein do not seem to be wholly applicable to AI data gathering in/from space, mainly due to the fundamental freedom to conduct space activity. As a choice must be made between competing interests, this article aims at discussing some of the elements that should be considered, when debating on a legal framework potentially applying to space AI data gathering; to avoid conduct of said activity only to the benefit of a few stakeholders against the background of an emerging regime of techno-feudalism.

Global Governance: Adjustment or Reform of the International Monetary System?

Fabio Masini — Wed, 27 Dec 2023 00:00:00 +0100

Global public goods and the contrast to global public bads require a dramatic change in the international monetary system, enforcement capacity, democratic legitimation, the return to regionalism and multilateralism. Pending the emergence of a more equitable global reserve and payments system, an increased use of the Special Drawing Rights, channeled through Multilateral Development Banks, may help managing the transition towards the provision of such global public goods. This would also provide a guidance for the reduction of Central Banks’ balance sheets, the financialization of the economy and an increase of real investment, thus anchoring the whole international economy to a less vulnerable and volatile monetary structure.