Two weeks in review, 15 August – 28 August

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Following recent developments in the Ukraine v. Russia case, explores interventions under article 63 of the ICJ statute. Mcintyre focuses on whether or not other States may intervene in a case at the jurisdictional stage, arguing that the Court is, or is not, jurisdictionally competent to proceed. She concludes with two notes: 

‘First, Russia could attempt to replicate Nicaragua’s litigation strategy and deny the intervenors a hearing, which could impact negatively on the proper administration of justice. Second, the only precedent the Court has is one in which it denied the right of intervention at the jurisdictional stage. It remains unclear whether the decision holds for intervention at the jurisdictional phase generally or can be distinguished on the facts[…].’

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discusses both legal and social aspects of apologetic declarations. In particular, Belgium’s act of returning the gold-crowned tooth to Congo. This act ends a quarrel of 62 years between the former colonial and colonized peoples regarding the murder of the anti-colonial leader Patrice Lumumba. The act bears further significance in Gonçalves’s opinion: 

‘By recognizing the illegality of colonial injustices, Belgium’s statement rejects the Eurocentric reading of human rights law according to which colonialism is legitimized by the law applicable at the time of the facts and, hence, cannot be condemned nor given redress. Politically, it factually acknowledges the Northern violence towards the South, subverting the colonial amnesia pattern. The precedent raises hope over a reversal of the trend of merely rhetorical apologetic declarations regarding colonial injustice.’

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 and  review various responses to their EJIL article, ‘WTO Rulings and the Veil of Anonymity’. The finding that invariably attracted the most attention has been their use of text-as-data methods to show that the permanent staff of the WTO Secretariat have more influence over the final text of WTO rulings than the adjudicators themselves. See the full discussion here

In their second post, ‘Does It Matter Who Writes Legal Rulings? It Depends’, and examine the importance of judicial authorship in the case of the WTO. The two conclude: 

‘In sum, because of the interpretive discretion that the WTO treaties offer, authorship becomes a source of authority. It bears mention that these terms, “author” and “authority” (not to mention “authentic”), share a common etymology in the Latin auctor, which means to “originate”. The more that origin matters for outcomes, the more the system’s perceived legitimacy rests on the originator being who they claim to be.’

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In their post ‘Al-Masarir v Saudi Arabia: A route to state accountability for spyware’,  and  analyze the scope of the territorial tort exception as discussed in the Al Masarir v Kingdom of Saudi Arabia. The two argue that by denying Saudi’s claim for immunity, the court provided a much-needed answer to citizens seeking to obtain redress for cyber-related harm. 

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