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ARTICLES
The NGOs’
Participation
in the Proceedings of the
International Court of
Justice
Saratoon Santivasa
✽
Many international judicial bodies have prescribed the procedures allowing NGOs to
participate in the proceedings generally as non-parties as amicus curiae, expert or
witness for the purpose of the good administration of justice. These possibilities are
well developed in judicial bodies where the nature of proceedings concerns the issues
that international law recognizes as the collective interests of the international
community. In the International Court of Justice, on the contrary, NGOs do not
have such possibility to make contributions as they have done in other international
judicial bodies. The development of the elaboration of the texts on the Court
proceedings and the restrictive interpretation of these texts reflect the restrictive
approach of the Court towards NGOs
’
participation. The Court should offer the scope
to access NGOs since they have legitimate right to represent the views of
international civil society in an international democratic process and can contribute
to assist the Court to protect the collective interest of the international community.
Keywords
Non-Governmental Organizations, International Judicial Proceedings,
International Court of Justice, Amicus Curiae, Administration of Justice
ⅤKFBJM3)3123* OHPtcfgpsfJDK 377
* Assistant Professor of Law at Chulalongkorn University, Thailand, LL.B. (Chulalongkorn), DEA en Droit
International (Paris II), Docteur en Droit (Paris II). The author may be contacted at: saratoon.s@chula.ac.th
/Address: Faculty of Law Chulalongkorn University, Phayathai Road, Pathumwan, Bangkok 10330, Thailand.
I. Introduction
Non-governmental organizations (“NGOs”) are legal persons established under
domestic private law and as such have no international personality. Nonetheless, they
play important roles in international law and have certain rights, although they cannot
be treated equal to States or intergovernmental organizations. While their status is
limited to being actors or even observers in international forums, their contribution to
the development of international law is undeniably remarkable. Over the past decades,
international NGOs are increasingly taking part in various steps of the international
legal order such as elaboration of rules, law enforcement and litigation.
1
However,
NGOs have not yet been recognized as a legal person under international law
2
as well
as domestic law.
3
Despite the lack of international legal personality, NGOs have established regular
collaboration with inter-governmental organizations. In the last decade, some NGOs
have achieved informal and formal access to the international decision-making process
and have became non-negligible partners of States and inter-governmental
organizations on various issues, particularly when it happens to be in the common
interest of the international community. They are actively involved in the international
treaty making-process and significantly engaged in the enforcement of international law
by monitoring State compliance with international obligation.
In principle, the only subject under international law that can generally initiate cases
1A.-K. L
INDBLOM,
N
ON
-G
OVERNMENTAL
O
RGANIZATIONS IN
I
NTERNATIONAL
L
AW
passim
(2005).
See also
A. B
IANCHI,
N
ON
-
S
TATE
A
CTORS AND
I
NTERNATIONAL
L
AW
passim
(2009); I. R
OSSI,
L
EGAL
S
TATUS OF
N
ON
-G
OVERNMENTAL
O
RGANIZATIONS IN
I
NTERNATIONAL
L
AW
passim
(2010).
2A legal personality in international law has been recognized in case of the International Committee of Red Cross
(“ICRC”). The ICRC has rights under not only international law, but also international obligations. This international
legal personality has been clearly recognized by the 1966 Agreement concluded between Switzerland and
International Federation of the Red-Cross and the Red Crescent Societies. This international legal personality has
been reflected by the fact that the ICRC has capacity to conclude the international agreements with States and rights
to legation in international relations. Moreover, the ICRC has capacity to assert its claims directly against others
subjects of international law.
See
A. Escorihuela,
Le Comit International de la Croix Rouge comme Organization
sui generis? Remarques sur la. Personnalit Juridique Internationale du CICR
, 105 R
EVUE
G
ENERALE DE
D
ROIT
I
NTERNATIONAL
P
UBLIC
(“RGDIP”) 598-602(2001). P.-M. Dupuy,
L’Unit de l’Ordre Juridique International
, 297
Recueil des Cours de l’Acad mie de Droit International de la Haye/Collected Courses of the Hague Academy of
International Law (“RCADI”) 118(2002).
See also
C. Dominic ,
Accord de Si ge Conclu par le Comit International
de la Croix Rouge avec la Suisse
, 99 RGDIP 5-36 (1995).
3Special Rapporteur Giorigo Gaja, when defending the scope of the ILC study on the responsibility of international
organization, explained that NGOs were not included in the study because it considers the organizations that were
already subjects of international law and as such bound by obligations imposed on them by international law.
See
G.
Gaja,
First Rapporteur on Responsibility of International Organizations
, U.N. Doc. A/CN.4/532, Mar. 26, 2003.
378 T/Tboujwbtb
before the international judicial bodies is the ‘State.’In the case of NGOs,
4
accordingly
the fact that NGOs are not subject of international law restricts considerably their access
to the international jurisdiction.
5
The practice showed, however, that the possibility of
NGOs to accede to the international jurisdictions is not necessarily based on their
personality criteria. It is indeed their intention to accede to the international jurisdictions
that will transcend the legal personality barrier. Their willingness must not be seen as an
act being conditioned by the consent, but by the impetus given by themselves. NGOs
should not be limited to the cases where States have offered them an opportunity to
access to an international jurisdiction.
6
This is the NGO’s locus standi based on which an
NGO has the right either to become party to the litigation or to be heard by the judges
during the proceedings.
7
As a result, NGOs can participate in the international
proceedings at their own initiative to suggest a rational consistent with its own view as
amicus curiae.
8
In the case of the amicus curiae, their role is non-party intervention which
has an objective to offer to the court a certain point of view on legal issue or on facts in
the area of their own specialization. NGOs thus become friends of the courts who may
be allowed to intervene in the court proceedings where it is considered appropriate.
In the scope of their interest like human rights, environmental protection, and
humanitarian law, NGOs would get involved in legal issues which were raised in
different cases and would assist the court by presenting their observations. Acting as
amicus curiae, NGOs are not interested actors in a particular case per se, but serve the law
and assist the court. Their interest is to propose to the judges a concrete legal point of
view, and their role is limited to contribute this end by their expertise or by providing
available information in the spirit of independence and objectivity.
9
Simultaneously, NGOs may participate in the court proceedings when they are
appointed by a court as an expert. The locus standi for NGOs to use for their participation,
as amicus curiae or as expert, in the international jurisdictions exists more or less in the
statutes and rules of international judicial bodies, varying from one to another.
It is worth noting that the participation of NGOs in the judicial proceeding is
ⅤKFBJM3)3123* OHPtcfgpsfJDK 379
4T. T
REVES ET AL. (EDS
.
)
, C
IVIL
S
OCIETY,
I
NTERNATIONAL
C
OURTS AND
C
OMPLIANCES
B
ODIES
(2005).
See also
I. SOUMY,
L’
DES
O
RGANISATIONS
N
ON
G
OUVERNEMENTALES
A
UX
J
UR
ID
ICTIONS
I
NTERNATIONALES
passim
(2008); L.
Bartholomeusz,
The Amicus Curiae before International Courts and Tribunals, in Bianchi
,
supra
note 1, at 253-330;
Lindblom,
supra
note 1, at 218-365; Rossi,
supra
note 1, at 241-337; D. Shelton,
The Participation of
Nongovernmental Organizations in International Judicial Proceedings
, 88 A
M
. J. I
NT
’
L
. L. 611-642 (1994).
5Soumy,
id
. at 17.
6
Id
.
7R. Ranjeva,
Les NGO et la Mise en CEuvre du Droit International
, 270 RCADI 50 (1997).
8B. G
ARNER (ED.)
, B
LACK
’
S
L
AW
D
ICTIONARY
(9th ed. 2004).
9Olivier de Shutter,
Sur l
’
Emergence de la Soci t Civile Internationale: le R le des Associations devant la Cour
Europ enne des Droits de l
’
Homme
, 7 E
UR
. J. I
NT
’
L
L. 379-385 (1996).
different from their participation on the basis of consultative status in the international
organizations such as the UN Economic and Social Council (“ECOSOC”).
10
In
exercising their consultative role with the international organizations, NGOs participate
in the law-making and the law-enforcement process in the multilateral forum.
11
Their
rights and obligations depend on their particular status recognized by the international
organization whom they have relationships with.
12
When they participate in a judicial
proceeding, as amici or as expert, however, their role is to help the judges for the proper
administration of justice in law-enforcement by judicial means. Therefore, their role in
the judicial proceeding can be considered as the prolongation of their consultative role
on another front.
In the International Court of Justice (“ICJ”) which is open principally to States and
inter-governmental organizations, NGOs could traditionally accede to the Court
proceedings. However, the Court practices show that the role of an NGO to protect the
common interest of the international community in the ICJ proceedings has faced a
number of challenges posed by the legal instruments related to the Court proceedings
and the Court’s own discretion.
13
The main purpose of this research is to analyze these legal instruments for NGOs to
participate in the proceedings of the ICJ. This paper is composed of five parts including
Introduction and Conclusion. Part two will overview the NGOs’approach to
international proceedings. Part three will discuss the possibility of NGOs’participation
in the ICJ proceedings. Part four will evaluate the legitimacy of the NGOs’participation
in the ICJ proceedings.
II. The NGOs’Access to International Proceedings:
An Overview
The present development of international law depicts an increasing participation of
10 U.N. Charter art. 71. It reads: “The Economic and Social Council may make arrangement for consultation with non-
governmental organizations which are concerned with maters within its competence. Such arrangement may be
made with international organizations and, where appropriate, with national organizations after consultation with the
Member of the United Nations concerned.”
11 For the legal aspects of consultative relationships between the NGOs and the ECOSOC,
see
B. S
IMMA (ED.)
, T
HE
CHARTER OF
T
HE
U
NITED
N
ATIONS
: A C
OMMENTARY
, 902-915 (1995).
12
Id
. at 908-913
13 C. S
ANTULLI,
D
ROIT
D
U
C
ONTENTIEUX
I
NTERNATIONAL
305 (2005). The author explains that: “La juridiction international
a, sauf disposition contraire, une discr tion compl te pour recevoir au titre de la preuve tous les l ments qu’elle
juge pertinent.”
380 T/Tboujwbtb
NGOs in international and regional judicial proceedings. Various jurisdictions have
granted rights to NGOs to initiate or to take part in the judicial proceedings. In very rare
cases, NGOs participate as a party; in others, they have access to the court as non-party
such as amicus curiae, expert or witness.
A. International Criminal Court and Tribunals14
The International Criminal Court (“ICC”) has jurisdiction to prosecute individuals for
the most serious international crimes, namely, the crime of genocide, crimes against
humanity, war crimes and crimes of aggression.
15
The ICC may exercise its jurisdiction
when one or more crimes under its Statute are referred to the Prosecutor of the Court by
a State party or by the United Nations Security Council, or when the Prosecutor initiates
investigation proprio motu. In the later case, Article 15 (2) of the Rome Statute and Article
104 of the ICC Rules of Procedure and Evidence provide that the Prosecutor may initiate
investigations and seek information from States, organs of the UN, inter-governmental
organizations or non-governmental organizations. NGOs’documents are thus officially
referred to as an important source of information and play a crucial role in influencing
the Prosecutor to open an investigation. The Congo case in 2004 can be cited here as a
glaring example in this regard.
16
Similar provisions exist in Article 18(1) of the Statute of
the International Criminal Tribunal for Former-Yugoslavia (“ICTY”)
17
and Article 17(1)
of the Statute of the International Criminal Tribunal for Rwanda (“ICTR”).
18
Moreover, it is interesting that the ICC Statute allows NGOs to appear before the
Court as victims.
19
Being recognized as victim, they are holding a right to speak and can
ⅤKFBJM3)3123* OHPtcfgpsfJDK 381
14 This article refers only to the International Criminal Court and the
ad hoc
International Criminal Tribunals for
former Yugoslavia and Rwanda. For the Special Court for Sierra Leone,
see
,
e.g
., Rossi,
supra
note 1, at 302-304.
For The East Timor Special Panels for Serious Crimes,
see
Chiara Ragni,
NGOs and The East Timor Special Panels
for Serious Crimes
,
in
Treves et al. (eds.),
supra
note 4, at 129-142.
15 ICC Statute art. 5.
16
See
The International Criminal Court; How Nongovernmental Organizations Can Contribute to the Prosecution of
War Criminals, (Sept. 2004),
available at
http://www.iccnow.org/documents/HRW_iccProsecutions_0904.pdf (last
visited on Nov. 1, 2012).
17 It reads: “The Prosecutor shall initiate investigations
ex-officio
or on the basis of information obtained from any source,
particularly from Governments, United Nations organs, intergovernmental and non-governmental organization. The
Prosecutor shall assess the information received or obtained and decide whether there is sufficient basis to proceed.”
18 It reads: “The Prosecutor shall initiate investigations ex-officio or on the basis of information obtained from any source,
particularly from governments, United Nations organs, intergovernmental and non-governmental organization. The
Prosecutor shall assess the information received or obtained and decide whether there is sufficient basis to proceed.”
19 According to Article 85 of the Rules of Procedure and Evidences, ‘victims’means natural persons who have
suffered harm from any crime within the Court jurisdiction and may include organizations and institution that have
sustained direct harm to any of their property which is dedicated to religion, education, art or science or charitable
purpose, and to their historic monuments, hospitals and other places and objects for humanitarian purpose.
exercise rights resulting from this status. Victims may provide information and
evidence which are necessary for the investigation. They have the right to be heard
before the ICC Chambers at the pre-trial, during the proceedings and at the appeal
stage.
20
This right, however, is subject to the discretion of the Court according to Article
68(3) of the ICC Statute which provides that the Court can allow NGOs to present their
views if it is appropriate and if it is not prejudicial to the right of the accused and a fair
and impartial trial.
21
NGOs can also participate in the Court proceedings as amicus curiae. Article 44 of the
Statute provides that the ICC may, in exceptional circumstance, employ the expertise
personnel offered by NGOs to assist with works of any organ of the Court. In addition,
Rule 103(1) of the ICC’s Rule of Procedure states that:
At any stage of the proceedings, a Chamber may, if it considers it desirable for the
proper determination of the case, invite or grant leave to a State, organization or
person to submit, in writing or orally, any observation on any issue that the Chamber
deems appropriate.
The ICC has received many requests from NGOs to grant their amicus curiae
submissions.
22
However, the Court has been cautious in granting leave to NGOs to
submit amicus curiae briefs.
23
The Registrar has pointed out that the principal
characteristic of amicus brief is the impartiality of the intervening person.
24
In addition,
jurisprudence establishes the relevant conditions that amicus brief is justifiable when the
intervention: (1) is desirable for the proper determination of the case;
25
(2) relates to the
20 According to Article 93 of the Rules of Procedure and Ev
id
ence, a Chamber (Pre-Trial Chamber, Trial Chamber or
Appeal Chamber) may seek the views of victims on any issue. In particular, a Pre-Trial Chamber may seek the views
of victims when it reviews a decision of the Prosecutor not to proceed with an investigation at the request of a State
(Rule 107) or by its own initiative (Rule 109).
21 It reads: “Where the personal interests of the victims are affected, the Court shall permit their views and concerns
to be presented and cons
id
ered at stages of the proceedings determined to be appropriate by the Court and in a
manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. Such
views and concerns may be presented by the legal representatives of the victims where the Court considers it
appropriate, in accordance with the Rules of Procedure and Ev
id
ence.”
22
See
the list of the requests for leave to submit
amicus curiae
briefs at the International Criminal Court,
available at
http://www.icc-cpi.int/Menus/ICC/Search?qt=Request+leave+to+submit+Amicus+Curiae+&x=29&y=11&la=en (last
visited on Nov. 1, 2012).
23 A large number of
amicus
briefs submitted to the ICC had been rejected. Only few have been granted to leave file. In
the case of
the
Prosecutor v. Jean-Pierre Bemba Gombo,
e.g
., Amnesty International and the Women’s Initiatives for
Gender Justice were granted leave to file
amicus curiae
briefs. Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-
01/08, Decision on Request for Leave to Submit
Amicus Curiae
Observations Pursuant to Rule 130 of the rules of
Procedure and Ev
id
ence (July 17,2009), at 7.
24
See
the observation of the Registrar in Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04/06 (June 7, 2007), at 6-7.
25
See
Registrar referred to Prosecutor v. Kallon, Case No. SCSL-03-07-PT; Decision of the Application for Leave to
382 T/Tboujwbtb
legal arguments which are principal legal points;
26
and (3) must clarify a new and
complex legal issue on the basis of an acknowledged expertise on the question which
has been raised. Otherwise, the brief should be rejected.
Both the ICTY and the ICTR allow amicus curiae briefs by NGOs. The Rule of
Procedure and Evidence of either jurisdiction contains identical provision stipulating
that the trial and appeals chambers may invite or grant NGOs leave to file an amicus
briefs.
27
For example, the ICTY received various requests from NGOs to intervene as
amicus curiae in the Tadi case
28
and the Bla ki case
29
to provide advices on important
issues of general and criminal international law. The ICTR granted leave to NGOs for
the same reason the Kanyrukiga case
30
and in the Akayesu case.
31
Nevertheless, the
practices of both jurisdictions seem to indicate that the position of each tribunal is not
quite the same. The ICTY has used amicus curiae widely. In certain circumstances,
however, when the Tribunal has gone beyond the term of Article 74 of the Rules, for
example in Milo evi case,
32
the Tribunal has granted the amici to NGOs certain capacity
similar to that of the parties, making thus the boundary between amicus curiae and
parties unclear.
33
Moreover, the ICTY has seemed to be more open to amicus briefs from
NGOs since the beginning, whereas the ICTR refused to grant leave to NGOs to file
amicus curiae briefs in the initial years, but has become more opened to amicus curiae
submission by NGOs recently.
34
B. The International Tribunal for the Law of the Sea
The International Tribunal for the Law of the Sea (“ITLOS”) is a judicial body
ⅤKFBJM3)3123* OHPtcfgpsfJDK 383
Submit
Amicus Curiae
Briefs (July 17, 2003), at 170.
26
See
Registrar referred to Prosecutor v. Semanza, ICTR-97-20-T; Decision on the Kingdom of Belgium’s Application to
File an
Amicus Curiae
and on the Defence Application to strike out the Observation of the Kingdom of Belgium
Concerning the Preliminary Response to the Defence (Feb. 9, 2001).
27
See
Rule 74 of Rule of Procedure and Ev
id
ence of the ICTY and Rule 74 of Rule of Procedure and Ev
id
ence of the
ICTR.
28 Prosecutor v. Du ko Tadi , Case No. IT-94-1-T, Opinion and Judgment (May 7, 1997), at 2-15.
29 Prosecutor v. Tihomir Bla ki , Case No. IT-95-14-T, Orders Granting Leave to Appear as Amicus Curiae (Apr. 11,
1977).
30 Prosecutor v. Kanyarukiga, Case No. ICTR-2002-78-I, Decision on Difference Request to Grant
Amicus Curiae
Status
to Four Non-governmental Organizations (Feb. 22, 2008).
31 Prosecutor v. Akayesu, Case No.ICTR-94-4-T, Judgment (Sept. 22, 1998). In this case, a coalition of more than 45
human rights NGOs submitted an
amicus curiae
brief to the ICTR and urged also the Prosecutor to include rape and
other sexual crimes in the indictment.
See
Bartholomeusz,
supra
note 4, at 245-247.
32 Prosecutor v. Slobodan Milo evi , Case No. IT-02-54, Order Inviting Designation of
Amicus Curiae
, (Nov. 23, 2001).
33 Bartholomeusz,
supra
note 4, at 243-253; Lindblom,
supra
note 1, at 301-317; Rossi,
supra
note 1, at 289-302.
See
also
S. Williams & H. Woolaver,
The Role of the Amicus Curiae before the International Criminal Tribunals
, 6 I
NT
’
L
C
RIM
. L. R
EV
. 151-189 (2006).
34 Rossi,
supra
note 1, at 329.
established under Part XI and Annex VI of the United Nations Convention on the Law
of the Sea 1982(“UNCLOS”). Part XI also constitutes the Seabed Disputes Chamber of
the ITLOS which has compulsory jurisdiction over some categories of disputes related
to activities in the seabed. The access to the Chamber is broader than that of the
Tribunal; the non-States entities are allowed to bring cases before the Seabed Disputes
Chamber of the ITLOS. However, NGOs are not mentioned among the non-State actors
(“NSAs”) before the latter body.
35
In the advisory proceedings, under Article 191 of the UNCLOS and under Article
131 of the Rules of the Tribunal, the right to request an advisory opinion cases is limited
to States and inter-governmental organizations.
Regarding amicus curiae, Article 84 and Article 133 of the ITLOS Rules of Procedure
respectively providing contentious proceedings and advisory proceedings state that the
Tribunal and the Chamber may request or permit the information submission only from
inter-governmental organizations. It is worth mentioning here an interesting
development in an advisory opinion by the International Seabed Authority regarding
“Responsibilities and Obligations of States Sponsoring Persons and Entities with respect
to Activities in the International Seabed Area”(Case no.17)
36
where Greenpeace and the
World Wildlife Fund for Nature (“WWF”),
37
as non-governmental organizations, were
seeking leave to file written submissions and make oral submissions. However, these
amicus briefs were considered part of the case filed by the Seabed Dispute Chamber.
38
C. The WTO Dispute Settlement Procedure
The dispute settlement procedure of the World Trade Organization (“WTO”), Dispute
Settlement Understanding (“DSU”), allows only the WTO member States to participate
35 Articles 187 and 285 of the UNCLOS and Article 20 of the ITLOS Statute prov
id
es the Standing requirements before
the ITLOS and the Seabed Dispute Chamber. States, the international Seabed Authority, privates companies and
indiv
id
uals can be the party before the Seabed Dispute Chamber. In the ITLOS, the possibility for the NSAs to
appear before the ITLOS is not clear; it depends on the interpretation of Article 20 of the Statute.
See
P. Gautier,
NGOs and the Law of the Sea
,
in
Treves et al. (eds.),
supra
note 4, at 233-242. As for the advisory jurisdiction, under
Article 191 of the United Nations Convention on the Law of the Sea and under the Rules of the Tribunal art. 131,
participation in advisory opinion cases seems to be limited to States and intergovernmental organizations.
36
See
Responsibilities and Obligations of States Sponsoring Persons and Entities with respect to Activities in the
International Seabed Area, Advisory Opinion, Seabed Dispute Chamber of the International Tribunal for the Law of
the Sea (Feb. 1, 2011)
available at
http://www.itlos.org/fileadmin/itlos/documents/cases/case_no_17/
adv_op_010211.pdf (last visited on July 28, 2012)
37 Greenpeace International and the WWF submitted a petition requesting the ITLOS to permit them to intervene and
to accept their joint
amicus curiae
brief as part of the pleadings in this case. Both the petition and the
amicus curiae
brief may be found at Greenpeace International website,
available at
http://www.greenpeace.org/international/en/
System-templetes/Serch-results/?all=itlos%20amicus (last visited on Sept. 10, 2012).
38
See
ITLOS official website,
available at
http://www.itlos.org/index.php?
id
=109 (last visited on July 28, 2012).
384 T/Tboujwbtb
as parties in dispute settlement regarding their rights and obligations under the WTO
agreements. Upon requests of the complaining party, a Panel is set up by the Dispute
Settlement Body (“DSB”) to resolve the conflict. Appeals can be brought before a
standing Appellate Body.
The problem concerning the NGOs’participation in the WTO dispute settlement
system has relied on the interpretation of Article 13 of the DSU, which provides that:
1. Each panel shall have the right to seek information and technical advice from any
individual or body which deems appropriate...;
2. Panels may seek information from any relevant source and may consult experts to
obtain their opinion on certain aspects of the matter. With respect to a factual issue
concerning scientific or other technical matter raised by a party to a dispute, a panel
may request an advisory report in writing from an expert review group...
The Panels and the Appellant have received amicus curiae briefs on various occasions. In
the US-Shrimp case,
39
two joint amicus briefs were submitted to the Panel by NGOs. The
Panel refused to take into account these non-requested documents from NGOs for the
reason that it would be incompatible with the provision of the DSU. The Appellate
Body reversed the Panel’s view, stating that: “A panel has the discretionary authority
either to accept and consider or to reject information and advise submitted to it, whether
requested by a panel or not.”
40
A large number of member States expressed their
concerns over the Appellate Body’s expansive interpretation of Article 13 of the DSU.
41
Although the possibility for NGOs to submit amicus briefs is officially recognized, the
subsequent cases
42
have shown that both Panels and the Appellate Body, while
maintaining their discretionary authority to accept and consider non-requested briefs,
have refused, in most instances, to accept and consider amicus curiae briefs because these
briefs were not necessary in renderings its decisions.
43
D. The Court of Justice of European Union
In the past, NGOs could not be parties to a judicial proceeding unless they were either
ⅤKFBJM3)3123* OHPtcfgpsfJDK 385
39
See
United States-Import Prohibition of Certain Shrimp and Shrimp Products, Report of the Panel, WT/DS58/R,
May 15, 1998,
available at
http://www.wto.org/english/tratop_e/dispu_e/58r01.pdf (last visited on July 28, 2012).
40
See
United States-Import Prohibition of Certain Shrimp and Shrimp Products, Report of the Appellate Body,
WT/DS58/AB/R, Oct. 12, 1998, 101.
41 Bartholomeusz,
supra
note 4, at 257.
42 For details on these cases,
see
Rossi,
supra
note 1, at 304-307; Lindblom,
supra
note 1, at 322-327.
43 B. Stern,
L’Intervention dans le Contentieux de l’OMC
, 107 RGDIP 271 (2003).
directly addressed by an EU decision, or directly and individually concerned by an EU
decision or regulation. Later, the Lisbon Treaty introduced a provision expanding the
right to challenge the EU measures. Article 263(4) of the Lisbon Treaty provides that:
Any Natural or Legal person may...institute proceedings against an act addressed to
that person or which is of direct and individual concern to them, and against a
regulatory act which is of direct concern to them and does not entail implementing
measures.
44
This article, while maintaining the direct and individual concern principle in order to
challenge the EU acts, provides that, in the case of regulatory acts, the individual
concern criteria is not required. Through this new rule of judicial review, NGOs may be
recognized as having locus standi as party to challenge the regulation to protect a
collective interest.
45
According to Article 40 of the Statute of the European Court of Justice (“ECJ”) and
Article 93(1) of the Rules of the ECJ, any person establishing an interest in the result of
the case submitted to the ECJ may intervene, except in the case between member States
and/or institutions of the EU. An application to intervene shall be limited to supporting
the form of order sought by one of the parties. The intervention must show direct and
concrete interest in the outcome of the case. It is worth noting that under these
provisions the intervening persons seek to protect their own interest in the dispute, not
the interest of the proper administration of justice. This intervention is not thus amicus
curiae. In various instances, NGOs attempted to intervene under Article 40 of the Statute
of the ECJ, but were rejected by the Court simply because they could not have shown a
direct interest established within the field of their objective.
46
E. The European Court of Human Rights
Not until the entry into force of the 11
th
Additional Protocol to the European
Convention on Human Rights (“ECHR”) in 1998, the individuals and NGOs have locus
standi as parties before the European Court of Human Rights (“ECtHR”). Article 34 of
the ECHR provides that the Court “may receive application from person, non-
governmental organization or group of individuals claiming to be victim of a violation
44
See
Information and Notices
in
50 O
FFICIAL
J. E
UR.
U
NION
(2007),
available at
eur-lex.europa.eu/LexUriServ/
LexUriServ.do?uri=OJ:C:2007:306:FULL:EN:PDF (last visited on Sept. 10, 2012).
45 Rossi,
supra
note 1, at 273; Soumy,
supra
note 4, at 402-405.
46
See
,
e.g
., The Autonomous Region of the Azores v. Council, 2004 European Court Reports (“ECR”) II-02153,
recited
in
Rossi,
id
. at 314.
386 T/Tboujwbtb
by one of the High Contracting Parties...”NGOs may, therefore, institute case before the
Court as victim itself
47
or as representative of victim
48
and excluding, thus, an actio
popularis challenge.
49
Article 36(2) of the Convention provides that: “The President of the Court may, “in
the interest of the proper administration of Justice, invite...any person concerned who is
not the applicant to submit written comments or take part in hearings.”The European
Court of Human Rights calls this intervention as “third party intervention.”The Court
regularly and extensively accepts and relies on documents provided by NGOs and the
text of judgments generally refers to NGOs’interventions, as well.
50
F. The Inter-American Court of Human Rights
The American Convention of Human Rights of 1969 (“ACHR”) establishes human
rights protection regime by allowing different categories of petitioners to submit
petitions on behalf of victims.
51
Under Article 44 of the ACHR and Article 23 of the Rule
of Procedure of the Inter-American Commission on Human Rights, any person or
group of persons or non-governmental entities legally recognized in one or more of the
member States of the Organization of American States may submit petition to
Commission, on their own behalf or on behalf of third persons, against any member of
the Organization who violates its human rights obligations contained in the Convention
and in the American Declaration of the Rights and Duties of Man. However, right to
submit a petition for NGOs appears to be limited in a number of aspects. First, NGOs
may exercise this right before the Commission and not before the Inter-American Court
of Human Rights. Second, NGOs may not file complaint as victim since the concept of
victim under the Convention refers to individuals. Third, NGOs must be legally
recognized in one or more member States.
52
On the other hand, the amicus curiae have been extensively accepted both in the
contentious and advisory proceedings. Article 45(1) of the Rules of Procedure provides
that the Court may, proprio motu, obtain any evidence it considers helpful from any
person whose evidence, statement, or opinion it deems to be relevant. Even this
provision does not mention the non-requested amicus briefs; this provision has been
ⅤKFBJM3)3123* OHPtcfgpsfJDK 387
47 Conka and Others v. Belgium, App. No. 551564/99 (2001). The Ligues des Droits de l’Homme could not claim since
they were not themselves victim of violation.
48 Yusupova and Others v. Russia, App. No. 5428/05 (2009).
49 Lindblom,
supra
note 1, at 251; Rossi,
supra
note 1, at 276.
50 N. Vajic,
Some Concluding Remarks on NGOs and the European Court of Human Rights
,
in
Treves et al. (eds.),
supra
note 4, at 93-104.
51 M. Pinto,
NGOs and the Inter-American Court of Human Rights
,
in
Treves et al. (eds.),
supra
note 4, at 47-56.
52
Id
. at 51-53.
used mutatis mutandis as legal basis for such briefs.
53
G. The African Court of Human Rights and Peoples
’
Rights
Established by the Protocol to the African Charter of Human rights and Peoples’Rights
1988, the African Court of Human Rights and Peoples’Rights (“AFCHRP”) has
contentious and advisory jurisdiction. Under Article 3 of the African Charter, the Court
has contentious jurisdiction on all disputes submitted to it concerning the interpretation
and application of the OAU Charter and Protocol as well as the human rights
instrument ratified by the States concerned. According to Article 5(3) and Article 34(6),
NGOs with observer status before the African Union Commission can bring cases
directly to the Court if the State against which has made a declaration accepting this
possibility at the time of its ratification; only five of twenty-six member States have
made such declaration as of now.
54
Regarding the advisory jurisdiction, Article 4 of the Protocol and Rule 68(1) of the
Rule of the Court specify that an African Organization recognized by the African Union
may request advisory opinions. The recognized NGOs may thus initiate advisory
proceedings by using this provision as legal basis.
Rule 45(1) of the Rule of the Court provides that: “The Court may, inter alia, decide to
hear ... in other capacity [other than witness or expert], any person whose evidence,
assertions or statements it deems likely to assist in carrying its task.”By means of this
Rule, the Court has recently granted the Pan-African Lawyers Union (“PALU”) request
to participate as amicus curiae in the case of African Commission on Human Rights and
Peoples
’
Rights v. The Great Socialist Libyan People
’
s Arab Jamahiriya.
55
The overview has demonstrates that NGOs have been permitted to participate in
several international and regional judicial courts and tribunals. The Statute and Rules of
Procedure of each judicial body provide the locus standi for NGOs’roles in each
jurisdiction as either party or non-party. Since NGOs do not have international legal
personalities, participation as party is very limited and can be considered as exceptional.
On the other hand, the participation in the international proceedings as non-party is
remarkable. It can be observed that the trend goes toward a permissive approach as
53
Id
. at 55.
54 Five States are Burkina Faso, Malawi, Mali, Tanzania and Ghana.
See
List of Countries Which Have
Ratified/Acceded to the Protocol,
available at
http://www.africain-court.org/en/images/documents/Court/Statute%
20ACJHR//Statutes%20of%20the%20Ratification%20Process%20of%20the%20Protocol%20Establishing%20the%20Afric
ain%20Court.pdf (last visited on July 28, 2012).
55
See
The Court’s Order,
available at
http://www.africain-court.org/en/images/documents/Order-Files/order-
amicus.pdf (last visited on July 28, 2012).
388 T/Tboujwbtb
either amicus curiae or expert, particularly, in the circumstance where the protection of
collective interest is at stake.
III. The NGOs’Access to the Proceedings of the
International Court of Justice
Unlike the other international judicial bodies mentioned above, the Statute of the
International Court of Justice (“ICJ”) does not provide for the legal standing of NGOs to
the Court proceedings as party. It is clear that the only entities with international
personality can go before the ICJ. Access to the ICJ is restricted to States in contentious
cases
56
and, to a lesser extent, to the international organizations for advisory opinion in
accordance with the United Nations Charter
57
and the Statute of the ICJ.
58
Nevertheless,
the possibility of NGOs to participate in the Court proceedings is not nonexistent. The
provisions related to the Court procedure provide locus standi for NGOs to participate as
amicus curiae or expert. These options rely fundamentally on the discretion of the Court.
A. Contentious Proceedings
In the contentious proceedings, Article 34(1) of the ICJ Statute provides that: “Only
States may be parties in cases before the court.”In addition, a third-party State may
intervene in the contention proceedings if it has an interest of a legal nature which may
be affected by the decision in the case,
59
or if it is party to the Conventions concerned in
the case which has been notified by the Registrar.
60
The possibility for NGOs to participate in the contentious proceedings is mentioned
neither in the Statute nor in the Rules of Procedure of the ICJ. However, some
provisions have triggered a debate on this question. Article 34(2) and (3) of the Statute
provide that:
ⅤKFBJM3)3123* OHPtcfgpsfJDK 389
56 ICJ Statute art. 34, 1
57 U.N. Charter art. 96. It reads: “1. The General Assembly or the Security Council may request the International Court
of Justice to give an advisory opinion on any legal question. 2. Other organs of the United Nations and specialized
agencies which may at any time be so authorized by the General Assembly, may also request advisory opinions of
the Court on legal questions arising within the scope of their activities.”
58 ICJ Statute art. 65, 1. It reads: “1. The Court may give an advisory opinion on any legal question at the request of
whatever body may be authorized by or in accordance with the Charter of the United Nations to make such request.”
59
Supra
note 56, art. 62(1).
60
Id
. art. 63.
2. The Court, subject to and in conformity with its Rules, may request of public
international organizations information relevant to case before it, and shall receive
such information presented by such organizations on their own initiative.
3. Whenever the construction of the constituent instrument of a public international
organizations or of an international convention adopted there-under is in case before
the Court, the Registrar shall so notify the public international organizations
concerned and shall communicate to it copies of all the written proceedings.
Concerning the wording used in the ICJ Statute, the term “public international
organization”is analyzed in details by Dinah Shelton. According to her, it is not clear
that the Article 26 of the PCIJ Statute which is the precedent for the Article 34 of the ICJ
Statute should be considered a precedent restricting the term “public international
organization”to institution that are only composed of, or certain States represented by,
governments because the International Labour Organization that had access to the PCIJ
in the contentions proceedings under the Article 26 of the PCIJ Statute is not solely an
international organization of States but a tripartite organization, composing of States
and non-States membership.
61
In the Asylum case,
62
the International League for the Rights of Man requested leave
from the ICJ to present information relevant to the case according to Article 34(2) of the
Statute. The Registrar rejected this request to participate in the Asylum case, explaining
that the League was not categorized as “public international organization.”
63
Some
writers have proposed that the interpretation of the term “public international
organizations”should cover “international public interest organizations”
64
in order that
NGOs could be accepted. This interpretation was apparently not favored by the Court
since the provision of the Rules of the Court regarding the contentious proceedings as it
has been amended later; the term “public international organization”refers to an
intergovernmental organization.”
65
The participation of NGOs in the Court proceedings can be considered possible but
indirect. In certain circumstance, their briefs have been integrated into a party’s
Memorial; by this way, NGOs’briefs can be part of the official document in the
proceedings. In the Gab ikovo-Nagymaros Project case
66
and the Armed Activities on the
390 T/Tboujwbtb
61 Shelton,
supra
note 4, at 620-623.
62 Asylum case (Colom. v. Peru), Judgment, 1950 I.C.J. 266 (Nov. 20).
63
Id
. at Pleading, vol. II.
See
Shelton,
supra
note 4, at 623.
64 Shelton,
id
. at 625.
65 The Rules of the Court art. 69(4). It reads: “In the forgoing paragraph, the term ‘public internal organization’
denotes an international organization of states.”
66 Gab ikovo-Nagymaros Project (Hung. v. Slovk.), Judgment, 1997 I.C.J. 7 (Sept. 25).
Territory of Congo case,
67
various documents prepared by NGOs were referred to as part
of the annexes to the Memorials of the parties.
68
In this connection, Judge Shahabudden
has rightly pointed out in another occasion that: “An amicus curiae is limited to his
essential function as a friend of the court, as distinguished from being a friend of the
accused.”
69
Literally, the term amicus curiae means friend of the Court, whose interest to
act cannot be assimilated to the interest of a party to a dispute. As a result, NGOs
appeared in these cases to be amicus of a party instead of that of the Court.
Another basis for NGOs to submit information to the Court in the contentions
proceedings is when they are appointed as experts. It is worth noting that the status of
expert is different from amicus curiae. Contrary to the amicus curiae that intervene in the
Court proceedings by making the request to the Court, an expert participates in the
proceedings by the Court invitation.
70
An NGO can submit information to the Court in
the contentions proceedings on the basis of Article 50 of the ICJ Statute, according to
which the Court may entrust any individual, body, bureau, commission, or other
organization that it may select, with the task of carrying out an inquiry or giving an
expert opinion. The wording used in the article is clear and cover all kind of entities; it
seems not to be subject to interpretation, which may lead to restrict the participation of
NGOs as experts. However, the ICJ has rarely invoked Article 50 of its Statute to
appoint an expert.
71
Apart from the expert appointed by the Court, NGOs can be heard
as experts or witnesses on the request of one of the parties pursuant to Articles 57 and 63
of the Rules of the Court. They may be called if other party makes no objection.
B. Advisory Proceedings
In the context of the advisory proceedings, there is no provision in the ICJ Statute that
ⅤKFBJM3)3123* OHPtcfgpsfJDK 391
67 Activities on the Territory of the Congo (Congo v. Uganda), Judgment, 2005 I.C.J. 168 (Dec. 19).
68
See
,
e.g
., Judgement: Case concerning the Gab ikovo -Nagymaros Project - (Hungary/Slovakia),
available at
http://www.sc-sl.org/scsl/Public/SCSL-03-11-Fofana/SCSL-03-11-PT-070/SCSL-03-11-PT-070-XIV.pdf; Case concerning
Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda),
available at
http://www.icj-cij.org/docket/files/116/10455.pdf
69 Prosecutor v. Milo evi , Case No.IT-2-54-AR73.6, Decision on the interlocutory appeal by the amicus curiae against
the Trail Chamber Order concerning the presentation and preparation of the defense case (Jan. 20, 2004).
See
Separate Opinion of Judge Shahabuddeen at 15.
70 Soumy,
supra
note 4, at 202.
71 The ICJ exercised its power under Article 50 of its Statute only in two cases. In the
Corfu Chanel
case, the Court
commissioned naval experts to evaluate visibility from the Albanian coast in order to verify the United Kingdom’s
claim.
See
Corfu Chanel (U.K. v. Alb.), 1947-48 I.C.J. 124 (Dec. 17, 1948),
available at
http://www.icj-
cij.org/docket/files/1/1669.pdf (last visited on July 28, 2012). In the
Gulf of Maine
case, the Court, upon a joint
request of the Parties, appointed an expert in respect of technical matters and in preparing the description of the
maritime boundary and the charts.
See
Delimitation of the Maritime boundary in the Gulf of Maine Area (Can. v.
U.S.), 1984 I.C.J. 246 (Oct. 12).
explicitly mentions the possible participation of NGOs in the advisory proceedings as
amicus curiae. Article 66 of the Statute should be taken into account as the starting point
of the analysis. Article 66(2) and (4) of the ICJ Statute provide that:
2. The Register shall..., notify any state entitles to appear before the Court or
international organization considered by the Court, or, should not be sitting, by the
President, as likely to be able to furnish information on the question, that the Court
will prepared to receive,... written statements, or to hear, at a public sitting to the held
for the purpose, oral statements or both shall be permitted to comment on statements
made by other states or organization...
4. States and organizations having presented written or oral statements or both shall
be permitted to comment on the statement made by other States or organizations in
the form, to the extent, and within the time-limits which the Court, or, should it not
be sitting, the President, shall decide in each particular case...
The right to be thus heard of the ‘non-parties’in the advisory proceedings seems more
open comparing to the aforementioned Article 34 which stipulates “public international
organization.”The term ‘international organization’laid down in Article 66 is not
specified further by the Rule. Article 66 of the ICJ Statute is based on Article 66 of the
revised PCIJ Statute of 1929 which also permitted international organizations to
participate in advisory proceedings. Although the term of international organizations
was not defined in the PCIJ Statute, some scholars at that time considered that the
provision permitted only public organizations.
72
However, the practice showed the
opposite outcome. In 1922, the PCIJ gave three advisory opinions concerning the ILO as
follows: (1) “Competence of the International Labour Organization; (2) Designation of
the Workers’Delegate for the Netherland at the third session of the International
Labour Conference; and (3) First Ordinary Session.”
73
Various organizations submitted
documents to the Court.
74
In each of the three cases,
75
the Courts decided “to hear, at
the public sitting, the representatives of any Government and international organization
392 T/Tboujwbtb
72 Shelton,
supra
note 4, at 621.
73 Publication of the Permanent Court of International Justice (1922-1946) (ser. B): Collection of Advisory Opinions,
available at
http://www.icj-cij.org/pcij/series-b.php?1=9&p2=2 (last visited on July 28, 2012)
74 Publication of the Permanent Court of International Justice (1922-1946) (ser. C): Acts and Documents relating
Judgments and Advisory Opinions given by the Courts; for Documents relating to Advisory Opinions No. 1,
available
at
http://www.icj-cij.org/pcij/serie_C/C_01/C_01_05_documents_Avis_No_1.pdf (last visited on Nov. 1, 2012).
See
Documents relating to Advisory Opinion No. 3,
available at
http://www.icj-cij.org/pcij/serie_C/C_01/C_01_07_
documents_Avis_No_3.pdf (last visited on July 28, 2012).
75
See
Advisory Opinion No. 1,
available at
http://www.icj-cij.org/pcij/serie_B/B_02/Competence_OIT_Agriculture_
Avis_consultatif.pdf (last visited on Nov. 1, 2012).
See also
Advisory Opinion No. 3,
available at
http://www.icj-
cij.org/pcij/serie_E/Francais/E_08_fr.pdf (last visited on July 28, 2012)
which... expressed a desire to be so heard.”This statement reflected the Court’s
interpretation of the provision to cover non-governmental organizations. This view was
adopted in later cases, as well.
76
The early practice of the ICJ shows that NGOs were considered as ‘international
organization’within the meaning of Article 66 of the Statute. In its advisory
proceedings in the International Status of South-West African case,
77
the Board of Directors
of the International League of the Rights of Man (subsequently became International
League of Human Rights after 1976) sent a communication to the Court asking
permission to submit written and oral statements; the Court decided to allow the
submission according to Article 66(2) of the ICJ Statute. However, the League’s written
statement has not been included in the proceedings for the reason that it was not
submitted to the Court within the time-limit fixed by the Court.
78
For the same reason,
the League was also refused to participate in the oral proceedings.
79
In 1970, when the United Nations Security Council requested the ICJ an advisory
opinion on the Legal Consequence for States of the Continued Presence of South Africa
in Namibia (South African case) notwithstanding Security Council’s Resolution No.
276(1970),
80
the International League of the Right of Man, along with another NGO, also
requested to be allowed to furnish written statement and to participate in the oral
proceedings. This time, the Court did not allow these NGOs to accede to the Court
proceedings,
81
considering that they were not ‘international organization’within the
sense of the Statute.
82
The Court’s position on this issue can be seen as its implicit
reconsideration on the status of NGOs under Article 66 of the Statute that was adopted
earlier in the South-West African case in 1950.
83
However, from the reading of the Rules of Court relating to advisory opinion, as
adopted in 1978, it can be suggested that the Court would not bar NGOs to furnish
information concerning the request since Article 105(1) of the ICJ Rules stipulates that:
“Written statement submitted to the Court shall be communicated by the Registrar to
any organizations which have submitted such statement.”
84
ⅤKFBJM3)3123* OHPtcfgpsfJDK 393
76 Shelton,
supra
note 4, at 621-623.
See also
C. C
HINKIN,
T
HIRD
P
ARTIES IN
I
NTERNATIONAL
L
AW
226-227 (1993).
77
See
International Status of South-West Africa, Advisory Opinion, 1950 I.C.J. 128 (July 11),
available at
,
http://www.icj-cij.org/docket/files/10/8933.pdf (last visited on Oct. 21, 2012).
78
Id
. at 346
79
Id
. at 343-344.
80 Legal consequence for States of the Continued Presence of South Africa in Namibia (South West Africa)
notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 1971 I.C.J. 16 (June 21).
81
Id
. at 639-640.
82
See
The Registrar’s response to the American Committee on Africa,
id
. at 647.
83 Barthalomeusz,
supra
note 4, at 226.
See also
R. Clark,
The International League for Human Rights and South West
Africa 1947-1957: The Human Rights NGO as Catalyst in the International Legal Process
, 3 H
UM.
R
TS
. Q. 101 (1981).
84 ICJ Statute art. 105(1).
It seems that the term ‘any organization’which is used in Article 105 appears to be
broader than the term ‘international organization’in Article 66 of the Statute
encompassing all kind of organizations. However, the Court practice still confirms that
such was the case.
In the advisory proceedings on Legality of the Use by a State of Nuclear Weapons in
Armed Conflicts, many documents coming from the international civil society were sent
to the Court and received by the Registrar. According to Jeremy J. Stone
85
who was the
former President of the Federation of American Scientists, the amicus brief by the
Federation of American Scientists and the summery of which was published in the
International Herald Tribunal,
86
was sent to the Court. The Court examined whether to
accept the amicus brief as part of its records and finally decided not to accept an
unsolicited one. The Registrar wrote to the New York Times, assuring the public in the
following terms:
I would point out that, contrary to the impression that may have been given... the
amicus brief has been received by the Court but has not been admitted as part of the
record in those cases. It is, however, available to Member of the Court in their
Library. The Court has received numerous documents, petitions and representations
from non-governmental organizations, professional associations and other bodies
that while they have no formal standing in the proceedings before it, wish to
communicate their views on the subject matter of these important cases. The Court
would like to make it clear that all such documents are given consistent treatment
and that the Federation of American Scientists has not been accorded more favorable
consideration than any other body.
87
These examples seem to demonstrate that even, in the advisory proceedings, the Court
is not less reluctant to the amicus curiae submission by NGOs.
C. Practice Directions of the ICJ
The ICJ first adopted the Practice Direction in 2001 for the States appearing before it to
use as standard additional to the Rule of Court.
Subsequent to the incidences that occurred in the two cases concerning the nuclear
weapons, the Court’s Practice Directions was amended in 2004. Practice Direction XII
394 T/Tboujwbtb
85 J. S
TONE,
E
VERY
M
AN
S
HOULD
T
RY
A
DVENTURE OF A
P
UBLIC
I
NTEREST
A
CTIVIST
106 (1999).
86
Id
. at 105-106. The author wrote that he had placed an article summarizing the
amicus
brief in The International
Herald Tribune without indication of date of its publication.
87 E. Valencia-Ospina Court Clarification: Letter to the Editor, N.Y. T
IMES
, Nov. 15, 1995,
available at
http://www.nytimes.com/1995/11/15/opinion/15iht-edlet.t_21.html (last visited on July 28, 2012).
newly adopted to confirm the Court’s position previously adopted.
88
Practice Direction
XII provides that:
1. Where an international non-governmental organization submits a written
statement and/or document in an advisory opinion case on its own initiative, such
statement and/or document is not to be considered as part of the case file.
2. Such statements and/or documents shall be treated as publication readily
available and may accordingly be referred to by States and intergovernmental
organizations presenting written and oral statements in the case in the same manner
as publications in the public domain.
3. Written statements and/or documents submitted by international non-
governmental organizations will be placed in a designated location in the Peace
Palace. All State as well as intergovernmental organizations presenting written or
oral statements under Article 66 of the Statute will be informed as to the location
where statements and/or documents submitted by international non-governmental
organizations may be consulted.
Nothing can guarantee that the Court makes use of NGOs documents. Recently, in
Arrest Warrant of 11 April 2000 case between Congo and Belgium,
89
the Amnesty
International submitted a memorandum that served the function of an amicus curiae.
90
Belgium also produced and submitted this document to the Court in the form of a CD-
ROM. The judges reportedly did not have facilities to read the CD-ROM. This document
was referred to, however, by some judges.
91
The commitment by this Practice Direction XII to place NGOs’submission on their
own initiative in the Peace Palace could be interpreted as the Court’s openness to
NGOs,
92
comparing to its previous decisions. At the same time, however, it seems that
the adoption of this Practice Direction XII also reflects a compromise between the
categorical rejection and the possibility to formal access of NGOs to the ICJ proceedings.
Thus, the submission by means of this Practice Direction may be considered as informal
amicus curiae if the Court refers to it. Otherwise, these documents remain to be the same
as any other information available to the public.
The provisions for amicus curiae and the practice of the ICJ concerning NGOs’
ⅤKFBJM3)3123* OHPtcfgpsfJDK 395
88 It is indicated on the ICJ website that: “Practice Directions involve no alteration to the Rules of court, but are
additional hereto.”They are the result of the Court’s ongoing receive of its writing method,
available at
http://www.icj-cij.org/document/index.php?p1=4&p2=4&3=0 (last visited on July 28, 2012).
89 Arrest Warrant of 11 April 2000 (Congo v. Belg.), Judgment, 2002 I.C.J. 3 (Feb. 14).
90 A
MNESTY
I
NTERNATIONAL,
S
TUDY ON
U
NIVERSAL
J
URISDICTION
(AI Index: IOR 53/002-081/2001, Sept. 2001).
91 D. Zagorac,
International Courts and Compliance Bodies: The Experience of Amnesty International
,
in
Treves et al.
(eds.),
supra
note 4, at 15.
92 Barthalomeusz,
supra
note 4, at 224.
participation in its proceedings reveal that the Court initially begun with a permissive
approach, but rapidly adopted a very restrictive position. The legal argument of this
direction shift is that NGOs are neither public international organization nor
international organization in the sense of the Rule of Court. In connection to the non-
State actor submission of amicus curiae brief, there is another reason of the Court’s
rejection that was revealed by the Registrar; the reason is that the Court would be
“unwilling to open the floodgates to what might be a vast amount of proffered
assistance.”
93
Up to now, the Court’s practice shows that the International League of the Rights of
Man has remained the only NGO that has been allowed to submit amicus curiae brief in
the International Status of South-West African case. It is very unfortunate that this
opportunity has not been fruitful for the reason of the procedural default.
IV. Legitimacy of NGOs’Participation in the ICJ
Proceedings
The application of rules concerning the participation of NGOs in the ICJ’s proceedings
and the adoption of the Practice Direction XII reflect the restrictive viewpoint towards
NGOs’participation. They do not indicate any possibility to submit information to be
regarded as formal submission or to intervene as experts. Some observations would be
made in relation to the legitimacy of NGOs’participation in the Court proceedings.
A. Attitude of the Court
The participation of NGOs as amicus curiae in the ICJ’s proceedings is very informal in
character; it is thus difficult to evaluate the real influence of the action and contribution
of NGOs, if any, on the content of the Court’s decisions and opinions because NGOs’
amicus curiae briefs are not accepted as official documents for the Court. Whenever the
NGOs have submitted amicus curiae briefs containing elements of law it is difficult to
know to what extent these briefs will influence judgments, because the Court’s
judgments and opinions do not contain the comprehensive references to the sources of
documents used for its conclusions. Even if the contribution of the NGOs might have
396 T/Tboujwbtb
93
See
The Registrar’s response to Professor Michael Reisman when he asked to the Court about the possibility for an
indiv
id
ual to submit an
amicus curiae
brief in Namibia case proceeding. He argued that: “There is no explicit
prohibition in the Rules of the Court for an interested group or indiv
id
ual to submit a brief by its own initiative.”
See
Clark,
supra
note 66, at 119-120.
influence it, the ICJ may appropriate the information in the briefs, as all other
information gathered during the proceedings, to elaborate the Court’s own
argumentation.
There are, however, only certain indications that could be observed from judges’
opinions. The question concerning the nuclear weapons generated a remarkable
mobilization of international civil society, enough to bring this question to the ICJ’s
advisory proceedings. This resulted in two requests of advisory opinions to the ICJ on
the legality of nuclear weapons emanating, respectively from the World Health
Organization in 1993
94
and the United Nation General Assembly in 1994.
95
In the Advisory Opinion on the Legality of the Threat or the Use of Nuclear
Weapons, Judge Weeramantry wrote in his dissenting opinion that:
A multitude of organization, including several NGO’s has also sent communications
to the Court and submitted materials to it, and nearby two million signatures have
been actually received by the court from various organization and individuals from
around 25 counties. In addition, they have been other shipments of signatures so
voluminous that the Court could not physically receive them and they have been
lodged in often depositories. If these are also taken into account, the total number of
signatures has been estimate by the Court’s Archivist at over three million.
96
...though these organization and individuals have not made format submission to the
Court they evidence a groundswell of global public opinion which is not without
legal relevance...
97
Judge Weeramanthy also recognized that this reflected the attitude of the international
community towards nuclear weapons. This attitude was represented by not only the
views of States concerning nuclear weapons, but also by the fact that “there is also a vast
preponderance of public opinion across the globe,”coming from various civil society
organizations which strongly protested against nuclear weapons.
98
ⅤKFBJM3)3123* OHPtcfgpsfJDK 397
94 Legality of the Use by a State of Nuclear Weapons in Armed Conflict (1993), Advisory Opinion, 1996 I.C.J. 66 (July
8). Pursuant to resolution WHA 46.40 adopted by the World Health Assembly on May 14, 1993, the World Health
Organization requested on advisory opinion of the ICJ on the question as follows: “In view of the health and
environmental effects, would the use of nuclear weapons by a State in war or other armed conflict be a breach of its
obligations under international law including the WHO constitution?”
See
Request for Advisory Opinion, at 3.
95
See
Legality of the Threat of Use of Nuclear Weapons (1995), Advisory Opinion, 1996 I.C.J. 226 (July 8). By
resolution 49/75K of General Assembly on 15 December 1994, the General Assembly requested an advisory opinion
of the ICJ on the question: “Is the threat or use of nuclear weapons in any circumstance permitted under
international law?”
See
Request for Advisory Opinion, at 2.
96
Id
. Dissenting Opinion of Judge Weeramantry, at 530-534.
97
Id
. at 438.
98
Id
. at 533
However, not all judges adopted the same view. In the same advisory opinion,
Judge Oda, giving several reasons dissenting from the majority of Judges’decision to
comply with the General Assembly’s request for the reason of the inadequacy of the
question, stated that:
8. (Non-governmental organization.) I would also point to another factor. The idea
behind the resolution whereby the General Assembly (also the WHO) requested
advisory opinions had previously been advanced by a handful of non-governmental
organizations (NGOs) which initiated a campaign for the total prohibition of nuclear
weapons...
99
Judge Oda, citing various statements from the NGOs which supported the attempt to
get an advisory opinion from the ICJ, concluded that:
This gives the impression that the request for an advisory opinion which was made
by the General Assembly in 1994 originated in ideas developed by some NGOs.
100
Judge Guillaume appeared clearly reluctant regarding the NGO’s involvement in such
circumstance as well. He expressed his view in his separate opinion that:
[t]he Court could have considered declining to respond to the request for an advisory
opinion. This solution would have found some justification in the very circumstances
of the seisin. The opinion requested by the General Assembly of United Nations (like
indeed the one requested by an association called International Association of
Lawyers Against Nuclear Arms (IALANA), which in conjunction with various other
groups lunched in 1992 a project entitled “Would Court Project”in order to obtain
from the Court a proclamation of the illegality of the threat or use of nuclear
weapons. These associations worked very intensively to secure the adoption of the
resolutions referring the question to the Court and to induce States hostile referring
to nuclear weapons to appear before the Court. Indeed, the Court and the judges
received thousands of letters inspired by these groups, appealing both to the
Members’conscience and to the public conscience.
I am sure that the pressure brought to bear in this way did not influence the Court’s
deliberations, but I wondered whether, in such circumstances, the requests for
opinions could still be regarded as coming from the Assemblies which had adopted
them or whether, piercing the veil, the Court should not have dismissed them as
inadmissible. However, I dare to hope that Governments and intergovernmental
institutions still retain sufficient independence of decision to resist the powerful
398 T/Tboujwbtb
99
Id
. at Dissenting Opinion of Judge Oda, at 335.
100
Id
. at 336.
pressure groups which besiege them today with the support of mass media. I also
note that none of States which appeared before the Court raised such an objection. In
the circumstances I did not believe the Court should uphold it proprio motu.
101
In the case concerning the Arrest Warrant of 11 April 2000 between Congo and Belgium,
Judge Van Den Wyngaert (ad hoc judge) referred to in her dissenting opinion various
NGOs’studies including Amnesty International. She expressed her opinion concerning
the value and impact of these works as follows:
In legal doctrine, there is a plethora of recent scholar writings on this subject. Major
scholarly organizations...have made statement on this issue. Advocacy organizations,
such as Amnesty International, Avocats sans Fronti res, Human Rights Watch, The
International Commission of Jurists, have taken clear position on the subject on
international accountability. This may be seen as opinion of civil society, an opinion
that cannot be completely discounted in the formation of customary international
law today. In several cases, civil society organizations have set in motion a process
that ripened into international convention...
The Court fails to acknowledge this development, and does not discuss the relevant
sources.
102
Regarding the use of documents, even though all the documents submitted to the Court
are not considered as part of the case file, they are made available to the judges for
consultation. It depends, thus, on the discretion of the Court or of the individual judges to
find it necessary or not to consult these documents. In the Lotus case, the PCIJ adjudicated:
observes that in the fulfillment of its task,...it has not confined itself to a consideration
of the arguments put forward, but has include in its researches all precedents
teachings and facts to which it had access...
103
The ICJ reaffirmed this position in the Nicaragua case. In this case by stating that:
The principle jura novit curia signifies that the Court is not solely dependent on the
argument of the parties before it with respect to the applicable law”
104
and “As to the
facts of the case, in principle the Court is not bound to confine its consideration to the
material formally submitted to it...
105
ⅤKFBJM3)3123* OHPtcfgpsfJDK 399
101
Id
. Separate Opinion of Judge Guillaume, at 287-288.
102
Supra
note 89. Dissenting opinion of Judge Van Den Wyngaert, at 154-155, 27-28.
103 The Case of the S.S. ‘Lotus’(Fra. v. Tur.), 1927 P.C.I.J. (ser. A) No. 10, at 31.
104 Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 29 (June 27).
105
Id
. 30.
Consequently, the Court may make use of the documents furnished to it.
106
Such rare
examples demonstrate that there are dispersed opinions among the judges. In addition,
the available examples are insufficient to conclude that, despite the formal barriers for
NGOs to participate in the Court proceedings, civil society opinions could be de facto
significantly taken into consideration by the other judges during the Court proceedings.
It may be risky to assume that this might not appear to be the case as, apart from the
statements mentioned above, the reference to NGOs’briefs in separate and dissenting
opinions is, it seems, unnoticed. Moreover, the principle jura novit curia was reaffirmed
in the Nicaragua case i.e. the application seems to have its place in the ICJ proceedings
when the documents are provided by State parties.
B. Participation in the Defense of Universal Interest
It has been observed that NGOs’efforts to involve in the ICJ proceedings concern the
issues related to the legal questions of human rights, environmental law and
humanitarian law. While each of these three legal arena seems different from each other,
they all share common characteristic, i.e., protecting the universal interest. The ultimate
goal of these laws is not to protect the interest of the States or the individuals, but the
survival of humanity. In various occasions this particular characteristic was emphasized
by scholars and international jurists. The legal obligations of these matters are the one
which binds States towards the international community.
107
This obligation
108
represents the ultimate stage of the mutually supportive cooperation.
109
It is the
common interest of the international community which underlines this type of
obligation. The common interest of the international community has a universal value.
Universality is often defined as values shared by all men.
110
Therefore, to advocate
universal interest has the only real purpose. That is to ensure the survival of
mankind.
111
400 T/Tboujwbtb
106
Id
. 73. In the
Nicaragua
case, the ICJ took into account a publication of U.S. Department of State which has been
sent to an official of the Registry to be made available to anyone at the Court interested in the subject, and despite
Nicaragua’s objection stating that: “It may, within limits, make use of information in such a publication.”
107
See e.g.
, Barcelona Traction Light and Power Company (Belg. v. Spain), Judgment, 1970 I.C.J. 32, 33-34 (Feb. 5).
See also
Legality of Threat of the Use of Nuclear Weapons (1995), Advisory Opinion, 1966 I.C.J. 241-242, 29 (July
8);
supra
note 66, at 41, 53 (Sept. 25).
108 J. C
RAWFORD,
T
HE
I
NTERNATIONAL
L
AW
C
OMMISSION
’
S
A
RTICLES ON
S
TATES
R
ESPONSIBILITY,
I
NTRODUCTION,
T
EXT AND
C
OMMENTARIES
41-42, 276-280 (2002).
109 P.-M. Dupuy,
Humanit , Communaut et Efficacit du Droit, in
H
UMANITE ET
D
ROIT
I
NTERNATIONAL
; M
ELANGES
O
FFERTS A
R
ENE
-J
EAN
D
UPUY
138 (A. P done ed., 1991).
110 J. S
ALMON,
D
ICTIONNAIRE DE
D
ROIT
I
NTERNATIONAL
P
UBLIC
119 (2001).
111 C. Tomuschat,
International Law: Ensuring the Survival of Mankind on the Eve of a New Centaury, General Course
on Public International Law
, 128 RCADI, 9-438 (1999).
It is undeniable that the notion of the ‘international community’is essentially the
“international community of States”as evidences by various legal provisions.
112
The ICJ
in Barcelona Traction case also stressed that erga omnes is “obligation of a State towards
the international community as a whole... all States can be held to have a legal interest in
there protection.”
113
However, Professor Crawford argued that: “If the phrase ‘the international
community of States as a whole’is intended as exclusive (i.e. as excluding non-states
from the process of law-formation in the field of peremptory obligations), it no longer
reflects the reality of the world.”
114
‘States’remain central to the process of international
law making and its enforcement; it is axiomatic that every State is as such a member of
the international community. Notwithstanding, the international community includes
entities in addition to States and the role that they play can be legally significant.
115
For
this reason the concept of the international community needs to be inclusive and open-
ended.
116
If the NSAs are regarded as a crucial part of the international community, then
NGOs are in-part justified in defending and speaking for the common interest of the
international community, not only in the law-making process, but also in judicial
proceedings as confirmed by various international judicial bodies.
If NGOs are allowed to participate in ICJ proceedings, their contributions would
help the judges in shaping international law. In this respect, NGOs would become a true
partner in using international law to protect the collective interests. Their contributions
would not be limited to the specific case in which they are involved because the Court’s
decision, despite the principle of lex judicata for the contentious case and the non-
binding effect for the advisory case, constitutes an authoritative precedent influencing
the attitude of States.
117
C. Participation: Democracy in the ICJ
’
s Proceedings
Under international law, States are the only actors that can participate in international
proceedings. This principle excludes large groups of NSAs from being represented
internationally. In spite of the State-centric principle, States are not the sole actors in the
ⅤKFBJM3)3123* OHPtcfgpsfJDK 401
112
E.g
., The Vienna Convention on the Law of Treaty art. 53. It reads: “For the purposes of the present Convention, a
peremptory norm of general international law is a norm accepted and recognized by the international community of
States a Whole.”
113
Belg. v. Spain
,
supra
note 107, at 33.
114 J. Crawford,
Responsibility to the International Community as a Whole
, 8 I
ND
. J. G
LOBAL
L
EGAL
S
TUD
. 313 (2001).
115
Id
. at 314.
116
Id
. at 315.
117 Shigeru Oda,
The International Court of Justice Viewed from the Bench
, 244 RCADI 78-79 (1993).
international community and more actors are allowed to participate in international
governance.
118
Fairness and openness are the most important conditions for
democratizing international law and institutions.
119
It may also be argued that more
representation by NSAs would serve to reduce the deficit in international law-making
and implementation.
120
International law is no longer a closed norm and not simply a relationship between
sovereign powers.
121
The amicus curiae is a vehicle by means of which the concerns of
international civil society can be expressed when the status of a party to a proceedings is
limited.
It has been observed by major international judicial bodies that the ‘democratization’
of international judicial proceedings is progressing. Regional and universal judicial
bodies, except in the case of the ITLOS, are open more or less for allowing NSA
participation. However, the ICJ has taken the opposite approach.
The reluctance of the ICJ to allow NGO participation does not seem to dissuade the
movement of civil society to assert the legitimacy of its rights. The legality of nuclear
weapons means something in terms of international public opinion. Civil society is, in
this exceptional case, able to put pressure on States and international organizations to
set the ICJ in motion. In this particular case, civil society may in effect replace the State
as the main actor in the ICJ proceedings. If this step is considered an abuse of process
well established in international law for the ICJ proceedings, taking into account the
allocation of rights in international relations,
122
one wonders whether the condition to
recognize the right of participation in ICJ proceedings is in accordance with the
changing structure of international law in increasing the role of the NSAs.
123
402 T/Tboujwbtb
118 The Secretary-General,
Agenda for Development
, 59, delivered to the General Assembly.
See
U.N. Doc. A/48/935
(May. 6, 1994)
available at
http://www.un.org/ga/search/view_doc.asp?symbol=A/48/935.
119 According to Professor Thomas Frank, “Fairness discourse requires fairness in the selection of participants. At present
the term ‘global discourse’suggests a conversation between nations, that limited view, however, is wrong...In
addition, and centrally, the mental model’s wrongness lies in its unfairness.”
See
T. F
RANK,
T
HE
P
RINCIPLE OF
F
AIRNESS
IN
I
NTERNATIONAL
L
AW AND
I
NSTITUTIONS
484 (1995).
120 Karsten Nowrot,
Legal Consequences of Globalization: The Status of Non-Governmental Organizations under
International Law
, 6 I
ND
. J. G
LOBAL
L
EGAL
S
TUD
. 600-601 (1999).
See also
A. Clark,
Non-Governmental Organizations
and Their Influence on International Society
, 48 J. I
NT
’
L
A
FF
. 523 (1998). According to Clark, the presence of NGOs
in the environment of international law will not remove the role of the State, since States and the intergovernmental
are likely to remain a central point for policy-making arena and coordinating action on international issues such as
human rights and environment. But this does not mean that NGOs would not be influential. Their contribution to
the international arena regulated by the States and the intergovernmental units, Clark contends, “can turn them into
organizational avenues for citizens as well as states on pressing global issues.”
121 H. Ascensio,
L’Amicus Curiae devant les Juridictions Internationales
, 105 RGDIP 900 (2001).
122 N. Leroux,
La Contribution des O.N.G. la Promotion et la Garantie de l’Etat de Droit, in L’Etat de Droit en
Droit International
, C
OLLOQUE DE
B
RUXELLES,
S
OCIETE
F
RAN AISE POUR LE
D
ROIT
I
NTERNATIONAL
357-358 (2009).
123 R. Higgins,
The Reformation in International Law, in
L
AW,
S
OCIETY AND
E
CONOMY
: C
ENTENARY
E
SSAYS FOR THE
L
ONDON
S
CHOOL OF
E
CONOMIC AND
P
OLITICAL
S
CIENCE
1895-1995, 211-215 (R. Rawlings ed., 1997)
Allowing NGOs to participate in ICJ proceedings does not mean that NGOs would
become party in contentious proceedings or would be granted a right to request an
advisory opinion. If the Court allows NGOs to submit amicus briefs, it is likely that
many additional briefs would be filed. However, all of these additional briefs should be
accepted as part of the official file. The Court has discretionary power to consider
whether any of the briefs are useful and can help the Court administer justice.
124
D. Administration of Justice
The principles of impartiality and neutrality are fundamental in the judicial process.
125
The idea of a neutral and impartial judge reflects two significant aspects of the identity
of a judge: being neutral and detached from all parties while at the same time being
cognizant of all issues in the case. These conditions are universal and essential for
international judges to perform their duties as neutral arbiters. Moreover, contemporary
international justice suggests that these principles mean as reassembling of the subtle
balance of powers and practices between justice, politics and ethics.
126
NGO activities aim to influence its emergence, content, impact as well as
implementation in international legal forum. The process to this objective is far from
being purely ‘legal.’Instead, it is apparently ‘political.’The process of reforming
international law
127
involves mobilizing State and inter-governmental organizations.
NGO movements have reached the ICJ, e.g., in the context of nuclear weapons; some
judges have expressed serious concern. However, the political aspect of the issues
124 One of the reasons that the Court authorizes or invites a third party to intervene in the case is for the proper
administration for justice. The expression “proper administration of justice”or other expressions having the same
meaning have been found in many articles of rules of the courts by which the courts allow the third party to
participate in the Courts’proceedings.
E.g
., The European Convention on Human Rights art. 36(2). It reads: “The
Pres
id
ent of the Court may, in the interest of
the proper administration of justice
, invite any High Contracting Party
which is not party to the proceedings or any person concerned who is not the applicant to submit written comments
or take part in hearings.”[Emphasis added] Article 74 of both the Rule of Procedure and Evidence of the ICTR and
the Rules of Procedure and Ev
id
ence of the ICTY states that: “A Chamber may, if it considers it desirable for the
proper determination of the case, invite or grant leave to a State, organization or person to appear before it and make
submission on any issue specified by the Chamber.”[Emphasize added] Article 103 (1) of the Rules of Procedure and
Ev
id
ence of the ICC states that: “At any stage of the proceedings, a Chamber may, if it considers it desirable for
the
proper determination of the case
, invite or grant leave to a State, organization or person to submit, in writing or
orally, any observation on any issue that the Chamber deems appropriate.”[Emphasis added]
125 G. T
IMSIT,
L
ES
F
IGURES DU
J
UGEMENT
52 (1993).
See also
P. -M. Dupuy,
Le Juge et la R gle G n rale
, 93 RGDIP 570-
597 (1989).
126 E. Jouannet,
Actualit des Questions d’Ind pendance et d’Impartialit des Juridictions Internationales : La
Consid ration des Tiers Pouvoir International ? in
H. F
RABRI
& J.-M. S
ORAL,
I
NDEPENDANCE ET
I
MPARTIALITE DES
J
UGES
I
NTERNATIONAUX
271-272 (2010).
127 Higgins,
supra
note 123.
ⅤKFBJM3)3123* OHPtcfgpsfJDK 403
brought before the Court is not present only in the cases in which NGOs are involved. It
is no longer necessary to show that the referrals to the ICJ in contentious and advisory
cases have not only legal implications but also political aspects. The political nature of
NGO activities does not necessary implies that the Court has to exercise its judicial
power in accordance with any political pressure. In exercising its function, the Court
must remain independent from external powers just as a court must remain neutral
from external pressure.
128
If the ICJ cannot directly oppose political pressure, the Court
can nevertheless control it since each international judge is in sum the depositary of the
whole judicial function.
129
One could argue that NGO should not file amicus briefs in contentious cases because
the consensual character of jurisdiction in such cases implies that access to the Court is
restricted.
130
Actually, the parties’autonomy represents indisputably an important
element which has to be protected in order to maintain the confidence of State parties
before the Court. This does not imply, however, that the Court should not be concerned
about broader aspects of the case beyond the parties’dispute, because the Court must
take into account not only the interests of the parties, but also administering justice. It is
also disputable that amicus briefs from NGOs would risk undermining party autonomy.
Besides, permitting NGOs to present an amicus brief and eventually considering it in the
interests of the proper administration of the international justice is not incompatible
with the Statute and the Rules of the ICJ. In this regard, Professor Shabtai Rosenne
wrote that the Court had power to prevent any possible abuse of process, and giving
such opportunity would increase the Court’s general standing and prestige.
131
Another obstacle to NGO participation is the restrictive wording used in the Statute
and Rules of the Court and the condition fixed by Practice Direction XII (2). It has been
suggested that the preferable option is to amend Rule 69(4), redefining the term “public
international organization”to mean “an international organization composed of states
or a non-governmental organization holding consultative status with the United
Nations.”
132
However, Practice Direction XII (2) still bars amicus briefs that NGOs
submit on their own initiative to be officially considered by the Court. Thus, this
provision is to be considered an amendment, as well.
133
128 Jouannet,
supra
note 126, at 277.
129 L. Condorelli,
Juridictio et (D s)ordre Judiciaire en Droit International: Quelques Remarques au Sujet de l’Arr t du
2 Octobre 1995 de la Chambre d’Appel du Tribunal P nal International pour l’ex-Yougoslavie dans l’Affaire Tadic,
in
D
ROIT ET
J
USTICE
28 (M langes en Honneur de Nicolas Valticos ed.1999).
130 Ranjeva,
supra
note 7, at 50.
131 S. Rosenne,
Reflection on the Position of the Individual in Inter-States litigation in the International Court of
Justice
,
in
I
NTERNATIONAL
A
RBITRATION
: L
IBER
A
MICORUM FOR
M
ARTIN
D
OMKE
244 (P. Sanders ed., 1957).
132 Shelton,
supra
note 4, at 642.
133
Id
.
404 T/Tboujwbtb
If the Court allows amicus briefs from NGOs, it is crucial to “screen the candidates,”
considering the unique attributes of the ICJ that may require more restriction in
granting an amicus curiae status to an NGO.
134
It is clear that not all NGOs deserve to be
representative of the civil society;
135
some are self-appointed and single issue-oriented.
They are not often accountable to people on whose behalf they claim to represent. For
these reasons, some criteria should be considered such as the role of amicus of the
Court.
136
When an NGO accesses ICJ proceedings as amicus curiae, their ability to assist the ICJ
should be evaluated in terms of their motivations, specialization and transparency in
their management.
137
It is recommended to establish a renewable list of the accredited
NGOs to submit an amicus briefs as it has been made in many regional courts.
Additionally, the ICJ should create a set of objective criteria for the transparency of its
choice. To protect the collective interest of the international community, the legitimacy
of NGOs to defend the collective interest lies in their particular vocation. To defend a
collective interest, this mission should be entrusted only to those who have
demonstrated a track record of professionalism.
138
In addition, the relevance of the argument in the amicus brief is a must be assessed. In
the Chernobyl case,
139
the European Court of Justice privileged the substantive issue
rather than the application of the formal requirement of the treaty in permitting the
amicus curiae.
140
It cannot be overlooked that accepting NGO amicus briefs will increase the Court’s
workload. The Court should open its door to NGOs because of the benefit they can
provide.
141
Thus, NGOs must submit briefs that satisfy the administration of justice. It is
not only the quality of the content that is important, but the cooperation among NGOs is
also necessary for a more streamlined process in order to avoid duplication and waste of
resources.
142
It would be in the interest of the ICJ to give accesses for NGOs to participate in Court
proceedings, as either an amicus curiae or expert. Their information could provide
134
Id
. at 627.
135 Lindblom,
supra
note 1, at 525.
136
Id
.
137 Soumy,
supra
note 4, at 361.
138
Id
. at 389-340.
139 European Parliament v. Council (Chernobyl) Case, C-70/88[1990] ECR I-2041.
140 A. Cygan,
Protecting the Interests of Civil Society in Community Decision-Making-The limits of Art.230 EC,
52 I
NT
’
L
C
OMP
. L. Q. 995-1012 (2003).
141 Shelton,
supra
note 4, at 618.
142 E. Rebesti & L. Vierucci, A Legal Status for NGOs in Contemporary International Law?,
available at
http://www.esil-
sedi.eu/fichiers/en/VierucciRebasti_971.pdf (last visited on July 28, 2012).
ⅤKFBJM3)3123* OHPtcfgpsfJDK 405
relevant views on the issues concerning common value. Increasing public participation
may serve the ICJ best by ensuring that its opinions are based upon the fullest available
information and reflect consideration of the public interest, as well as the desires and
concerns of litigants.
143
V. Conclusion
The NGOs’participation in the various international judicial bodies would show that
the international civil society can make contributions to the judicial decision-making
process. Participating in international proceedings as a third-party is remarkable as
either an amicus curiae or expert, particularly, in the circumstance where the protection
of collective interests is at stake. Even today, legal texts and Court practice have a
negative outlook on the role of NGOs participating in contentious and advisory
proceedings. This exclusion is based on considerations of expediency rather than law.
Because NGOs are representatives of civil society, their participation as amicus curiae
in ICJ proceedings would improve communication between the Court and the
international community. Unfortunately, the status quo of the ICJ’s Statute, Rules and
Practice Directions indicate otherwise. If NGO amicus briefs submitted on their own
initiative were officially considered, the Court could safeguard the rights of the parties or
international organizations to each case more efficiently. [Emphasis added]
It is also important for NGOs to demonstrate that their request to submit leave is
relevant as it provides the ICJ with valuable elements of the real global justice.
Establishing trust between NGOs and the ICJ will be helpful to reduce the setbacks the
Court experienced in the Nuclear Test cases.
143 Shelton,
supra
note 4, at 625.
406 T/Tboujwbtb
