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The Participation of Nongovernmental Organizations in International Judicial Proceedings

Published online by Cambridge University Press:  27 February 2017

Dinah Shelton
Dinah Shelton*
Affiliation:
Santa Clara University School of Law
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Extract

Nongovernmental organizations are playing an increasingly important role in international litigation. This study will analyze the participation of nongovernmental organizations, primarily as amici curiae, in the proceedings of four permanent international courts: the International Court of Justice, the European Court of Justice, the European Court of Human Rights and the Inter-American Court of Human Rights. After discussing the impact of amici in national and regional courts, it recommends that the International Court of Justice expand its acceptance of submissions from nongovernmental organizations in appropriate cases. The Court has a jurisdictional basis to do so and amici have usefully contributed to cases before other courts.

Type
Research Article
Information
American Journal of International Law , Volume 88 , Issue 4 , October 1994 , pp. 611 - 642
Copyright
Copyright © American Society of International Law 1994

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References

1 This assumes that a clear distinction is maintained between the different forms of participation, which is not always the case in either national courts or international ones. See Jewell Ridge Coal Corp. v. Local 6167, 3 F.R.D. 251 (W.D. Va. 1943) (right to participate in trial, present arguments and file briefs as an amicus is a substitute for permissive intervention under Federal Rule of Civil Procedure 24(b), where the applicant’s general economic interest in the question at issue as the representative of its members justified its participation even in the absence of that direct personal or pecuniary interest normally required of intervenors). In Canada amici are referred to as “non-party intervenors.” Protocol 11 to the European Convention on Human Rights infra note 122, will add a new Article 36 entitled “Third-party intervention,” permitting nonstate intervention. The explanatory notes add that the new article is based on the current amicus practice under Rule 37(2) of the Rules of Court, discussed infra in text at note 20, and clarifies that, in spite of the heading to Article 36, the intervenors are not parties to the proceedings.

2 The short-lived (1907–1918) Central American Court of Justice was an early exception. The court’s jurisdiction extended to cases between a government and a national of another state, if the cases were of an international character or concerned alleged violations of a treaty or convention. Convention para el Establecimiento de una Cone de Justicia Centroamericana, Dec. 20, 1907, Art. 2, 1 Anales de la Corte de Justicia Centroamericana 3 (1911). See Manley O. Hudson, Permanent Court of International Justice 49 (1943). Modern examples include various claims tribunals, e.g., the Iran-United States Claims Tribunal and the United Nations Compensation Commission established after the 1990–1991 Persian Gulf crisis. See David Caron, The Nature of the Iran-United States Claims Tribunal and the Evolving Structure of International Dispute Resolution, 84 AJIL 104 (1990). NAFTA and its side agreements also afford standing to individuals and other nonstate actors.

3 James Brown Scott, The Project of a Permanent Court of International Justice and Resolutions of the Advisory Committee of Jurists 92 (1920).

4 International Court of Justice, Statute Art. 34(1) (“Only states may be parties in cases before the Court.”). In addition, Articles 62 and 63 give a right to intervene only to states. See also Shabtai Rosenne, Documents on the International Court of Justice 75 (1st bilingual ed. 1991).

5 Treaty on European Union, Feb. 7, 1992, Arts. 173, 175, 178, 179, 1992 O.J. (C 224) 1,31 ILM 247 (1992). The Court is the judicial arm of the European Union, whose 12 member states are Belgium, Denmark, Germany, Greece, Spain, France, Ireland, Italy, Luxembourg, the Netherlands, Portugal and the United Kingdom.

6 The Court was established pursuant to the European Convention on Human Rights. Article 48 of the Convention provides that only the European Commission of Human Rights or a state party may bring a case before the Court. The state bringing the case may be only the state whose national is alleged to be a victim, the state that referred the case to the Commission or the state against which the complaint was lodged. European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature Nov. 4, 1950, 213 UNTS 221, Council of Europe, European Convention on Human Rights: Collected Texts 3 (1987). Convention Protocol 9 will give individuals, groups and nongovernmental organizations that have filed petitions the right to refer cases to the Court after proceedings have been completed before the Commission. Protocol No. 9 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 6, 1990, 30 ILM 693 (1991). As of July 1, 1993, 8 of the 10 ratifications necessary for the Protocol to enter into force had been received. Council of Europe, Information Sheet No. 32, Jan.-June 1993, at 2.

7 The jurisdiction of the Inter-American Court is modeled after that of the European Court. Article 61 of the American Convention on Human Rights limits the Court’s competence to cases brought by the Inter-American Commission or by a state party. American Convention on Human Rights, opened for signature Nov. 22, 1969, 1144 UNTS 123, reprinted in Inter-American Commission on Human Rights, Basic Documents Pertaining to Human Rights in the Inter-American System 25, OEA/Ser.L/V/II.71, doc. 6, rev.1 (1988).

8 See Lassa Oppenheim, International Law: A Treatise 362–69 (2d ed. 1912) (“Since the Law of Nations is a law between States only and exclusively, States only and exclusively are subjects of the Law of Nations.”). By 1955, Lauterpacht’s eighth edition of Oppenheim modified this view:

The various developments since the two World Wars no longer countenance the view that, as a matter of positive law, States are the only subjects of International Law. In proportion as the realisation of that fact gains ground, there must be an increasing disposition to treat individuals, within a limited sphere, as subjects of International Law.

Id. at 639 (Hersch Lauterpacht ed., 8th ed. 1955).

9 Scott, supra note 3, at 94. This assumption may have been based on the number of direct claims previously brought by individuals to international commissions. For example, the United States-Mexican Mixed Claims Commission of 1868 heard more than two thousand claims between 1871 and 1876. 1 John Bassett Moore, History and Digest of International Arbitrations to Which the United States Has Been a Party 299–349 (1898).

10 Scott, supra note 3, at 94–95.

11 Six of the 27 PCIJ advisory opinions concerned the International Labour Organisation and 11 concerned rights in Poland and/or Danzig. On labor, see, e.g., Advisory Opinion No. 1, Designation of the Workers’ Delegate for the Netherlands at the Third Session of the International Labour Conference, 1922 PCIJ (ser. B) No. 1 (July 31); Advisory Opinion No. 2, Competence of the ILO in Regard to International Regulation of the Conditions of Labour of Persons Employed in Agriculture, 1922 PCIJ (ser. B) No. 2 (Aug. 12); Advisory Opinion No. 13, Competence of the ILO to Regulate, Incidentally, the Personal Work of the Employer, 1926 PCIJ (ser. B) No. 13 (July 23); Interpretation of the Convention of 1919 concerning Employment of Women during the Night, 1932 PCIJ (ser. A/B) No. 50 (Nov. 15). Minority rights opinions include Advisory Opinion No. 6, German Settlers in Poland, 1923 PCIJ (ser. B) No. 6 (Sept. 10); Advisory Opinion No. 17, Greco-Bulgarian “Communities,” 1930 PCIJ (ser. B) No. 17 (July 31); Access to German Minority Schools in Upper Silesia, 1931 PCIJ (ser. A/B) No. 40 (May 15).

12 E.g., Territorial Jurisdiction of the International Commission of the River Oder, 1929 PCIJ (ser. A) No. 23 (Sept. 10); Legal Status of Eastern Greenland, 1933 PCIJ (ser. A/B) No. 43 (Apr. 5); Diversion of Water from the Meuse, 1937 PCIJ (ser. A/B) No. 70 (June 28). But see Mavrommatis Palestine Concessions (Jurisdiction), 1924 PCIJ (ser. A) No. 2 (Aug. 30); Mavrommatis Jerusalem Concessions (Merits), 1925 PCIJ (ser. A) No. 5 (Mar. 26).

13 See, e.g., Keith Highet, The Peace Palace Heats Up: The World Court in Business Again?, 85 AJIL 646 (1991).

14 However, states also have shown little enthusiasm for bringing interstate complaints before human rights bodies. Between 1955 and 1992, the European Commission of Human Rights opened 63,065 files based on individual applications, registering complaints in one-third of them (21,077). During this same period, there were 11 interstate filings concerning 6 cases (Greece v. United Kingdom (I and II); Austria v. Italy; Denmark, Norway, Sweden and the Netherlands v. Greece (I and II); Ireland v. United Kingdom (I and II); Cyprus v. Turkey (I, II and III); and Denmark, France, the Netherlands, Norway, and Sweden v. Turkey). Eur. Comm’n H.R., Survey of Activities and Statistics 18, 22 (1992) [hereinafter Survey]. Politics, other priorities, lack of resources, and the availability of direct access for individuals all contribute to this situation.

15 In 1991–1992, the International Court of Justice had the largest number of cases in its history: there were 12 contentious cases before the full Court and one case in chambers. 1992 Y.B. ICJ 148–49. Between 1961 and 1989, the European Court of Justice decided nearly 4,000 cases, 1,858 of them preliminary rulings and 2,061 direct actions. See Christian Kohler, The Court of Justice of the European Communities and the European Court of Human Rights, in Supranational and Constitutional Courts in Europe: Functions and Sources 20 (Igor I. Kavass ed., 1992). The European Court of Justice has used chambers with increasing frequency as its caseload has risen. See George A. Bermann, Roger J. Goebel, William J. Davey & Eleanor M. Fox, European Community Law 70 (1993). In 1986 the Single European Act created a Court of First Instance for the European Community, in part to alleviate the caseload burden on the Court; it began operating in September 1989. Id. at 72–73. Both the European and the Inter-American Human Rights Courts have seen similar in creases in recent years. In 1992 the European Court of Human Rights received 50 new cases, 45 referred by the Commission and 5 by governments. Survey, supra note 14, at 6. The Inter-American Court has issued five advisory opinions and decided matters in six contentious cases since 1989.

16 Genocide, war crimes and other human rights violations are central to the ICJ case of Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia/Herzegovina v. Yugoslavia (Serbia and Montenegro)). See, e.g., Provisional Measures, 1993 ICJ Rep. 3 (Order of Apr. 8); Provisional Measures, 1993 ICJ Rep. 325 (Order of Sept. 13). In a proceeding combining both human rights and environmental issues, the Director General of the World Health Organization filed a request for an advisory opinion on August 27, 1993. Based on World Health Assembly Res. WHO 46/40, May 14, 1993, it asks: “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 Legality of the Use by a State of Nuclear Weapons in Armed Conflict, 1993 ICJ Rep. 467, 468 (Order of Sept. 13).

17 In July 1993, the International Court announced the creation of a seven-member chamber of the Court for environmental matters. The Court noted that of the 11 cases on its docket at that time, 2 had important implications for international law on matters relating to the environment. ICJ Communiqué No. 93/20 (July 19, 1993).

18 E.g., Gabčíkovo-Nagymaros Project (Hung. v. Slovakia), announced by the Court in ICJ Communique No. 92/17 (July 5, 1993). For the basic documents of the dispute, see 32 ILM 1247 (1993). See further text at and notes 88–89 infra.

19 On November 1, 1989, the Secretary-General of the United Nations announced the creation of a trust fund to aid states that “are prepared to seek settlement of their disputes through the International Court of Justice, but cannot proceed because of the lack of legal expertise or funds.” UN Doc. A/44/PV.43 (1989), reprinted in 28 ILM 1590 (1989). See Mary Ellen O’Connell, International Legal Aid, in International Courts for the Twenty-First Century 96 (1992); Peter H. F. Bekker, International Legal Aid in Practice: The ICJ Trust Fund, 87 AJIL 659 (1993).

20 J. G. Merrills, The Development of International Law by the European Court of Human Rights 5, 41 (1988).

21 In re Gallardo, Decision of Nov. 13, 1981, Inter-Am. Ct. H.R. No. G 101/81, para. 22, reprinted in 20 ILM 1424, 1428 (1981). The statutory mandate appears to have been read narrowly by the Commission to apply only to contentious cases; the Commission failed to appear or present its views in the important advisory proceeding concerning the legal status of the American Declaration of the Rights and Duties of Man. See Advisory Opinion OC-10/89, Interpretation of the American Declaration of the Rights and Duties of Man Within the Framework of Article 64 of the American Convention on Human Rights, 10 Inter-Am. Ct. H.R. (ser. A) (1990).

22 See, e.g., Young, James & Webster v. United Kingdom, 44 Eur. Ct. H.R. (ser. A) (1981) (an attack on closed union shops in the United Kingdom). The case arid the intervention of the Trades Union Congress are discussed in text at note 127 infra.

23 See Ernest Angell, The Amicus Curiae: American Development of English Institutions, 16 Int’l & Comp. L.Q. 1017 (1967).

24 See Samuel Krislov, The Amicus Curiae Brief: From Friendship to Advocacy, 72 Yale L.J. 694, 695 n.4 (1963). Year Book cases as early as 1353 reveal an accepted practice of taking information from amiCl. Y.B. (Hil.) 26 Edw. 3, fol. 58, pl. 165 (1353).

25 Krislov, supra note 24, at 696.

26 Consolidated Liquor Corp. v. Scotello & Nizzi, 155 P. 1089, 1093, 21 N.M. 485, 494–95 (1916).

27 The intervention of the government as amicus curiae is said to be analogous to the role of the Commissaire du Gouvernement in the French Conseil d’Etat. See Angell, supra note 23, at 1017.

28 The same situation has presented itself in Canada, which admits amicus briefs from associations. In Morgentaler v. The Queen, [1976] 1 S.C.R. 616, an appeal from a conviction for performing an illegal abortion, the Chief Justice of the Canadian Supreme Court accepted submissions from the Canadian Civil Liberties Association, the Foundation of Women in Crisis, and the Alliance for Life. See Bernard M. Dickens, A Canadian Development: Non-Party Intervention, 40 Mod. L. Rev. 666 (1977).

29 Kirppendorf v. Hyde, 110 U.S. 276, 283 (1884). As discussed below, the U.S. Supreme Court began accepting amicus briefs in 1904, although no rule was drafted on the practice until 1937. See Krislov, supra note 24, at 694, 707.

30 The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116(1812). Significantly, the case was one of the first to present international law questions to the Court. The use of the term “amicus curiae” came with the case Green v. Biddle, 21 U.S. (8 Wheat.) 1, 17 (1821).

31 Angell, supra note 23, at 1018.

32 Ah How v. United States, 193 U.S. 65 (1916).

33 United States v. Barnett, 376 U.S. 681, 738 (1964).

34 Grand Rapids v. Consumers’ Power Co., 185 N.W. 852, 854, 216 Mich. 409, 415 (1921).

35 It is said that the Supreme Court accepts amicus briefs because these actually assist the Justices in dealing with their workload by providing information with which to formulate their opinions. Karen O’Connor & Lee Epstein, Court Rules and Workload: A Case Study of Rules Governing Amicus Curiae Participation, 8 Just. Sys. J. 35, 35–36 (1983).

36 Karen O’Connor & Lee Epstein, Amicus Curiae Participation in U.S. Supreme Court Litigation: An Appraisal of Hakman’s “Folklore,” 16 Law & Soc’y Rev. 311, 313 (1981–82).

37 “Virtually all recent research … has found evidence of a significant systematic organizational role in Supreme Court litigation.” Id.

38 Id. at 315, 317.

39 Id. at 317. In a landmark case concerning the definition of racial discrimination, 57 amicus briefs were submitted. Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978).

40 Susan Hedman, Friends of the Earth and Friends of the Court: Assessing the Impact of Interest Group Amici Curiae in Environmental Cases Decided by the Supreme Court, 10 Va. Envtl. L.J. 187 (1991).

11 See id.; Comment, Private Attorneys-General: Group Action in the Fight for Civil Liberties, 58 Yale L.J. 576 (1949) (reviewing the role of the ACLU, the NAACP and the American Jewish Committee in efforts to achieve civil rights, showing different litigation and lobbying strategies pursued); Leo Pfeffer, Amici in Church-State Litigation, Law & Contemp. Probs., Spring 1981, at 83. One measure of impact is citation of amicus briefs. O’Connor and Epstein found that nongovernmental amicus briefs were cited in majority, concurring or dissenting opinions in 18% of the cases decided by the Court from 1969 to 1981. O’Connor & Epstein, supra note 35, at 42.

42 393 U.S. 97 (1968).

43 See Pfeffer, supra note 41, at 107.

44 367 U.S. 643, 673 nn.5, 6 (1961).

45 Hedman, supra note 40, at 101. Environmental cases account for approximately 5% of the Supreme Court’s docket.

46 Id. at 193.

47 See Bruce J. Ennis, Effective Amicus Briefs, 33 Cath. U. L. Rev. 603 (1984).

48 State recourse to the Court is itself limited. During its 25 years from 1921 to 1945, the PCIJ issued 31 judgments and 27 advisory opinions. From 1946 to 1990, the ICJ rendered 52 judgments and 21 advisory opinions. 1988–89 Y.B. ICJ 173–85; ICJ Communiqué No. 89/14 (July 31, 1989); ICJ Communiqué No. 90/20 (Nov. 20, 1990). States may intervene in contentious proceedings either as of right under Article 62 of the Statute or with the Court’s permission under Article 63. States also may participate, as amici curiae, in advisory proceedings. They have rarely done so. See John T. Miller, Jr., Intervention in Proceedings before the International Court of Justice, in 2 The Future of the International Court of Justice 542, 550 (Leo Gross ed., 1976).

49 Article 96 of the Charter of the United Nations provides that the “General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question.” Upon authorization of the General Assembly, other organs of the United Nations and specialized agencies “may also request advisory opinions of the Court on legal questions arising within the scope of their activities.” UN Charter Art. 96.

50 ICJ Statute Art. 66(2); Rosenne, supra note 4, at 87.

51 ICJ Statute Art. 34(2) (emphasis added); Rosenne, supra note 4, at 55.

52 Rules of Court, Art. 69(4), adopted April 14, 1978, reprinted in 73 AJIL 748, 770 (1979); Rosenne, supra note 4, at 249. Article 69(2) provides that public international organizations may furnish information relevant to a case before the Court in the form of a memorial. The Court retains the right to require supplemental information, either orally or in writing. The parties may comment on the information furnished.

53 Doc. US Jur 1, G–1, 14 U.N.C.I.O. Docs. 326, 337 (1945).

54 1926 PCIJ, Statute and Rules of Court (ser. D) No. 1, at 14–15.

55 Doc. Jurist 30, G/22, 14 U.N.C.I.O. Docs. 131, 133.

56 Id. at 136–37.

57 Id. at 137.

58 Id.

59 Doc. Jurist 47, G/36, 14 U.N.C.I.O. Docs. 485, 491.

60 Doc. Jurist 45, G/34, id. at 175, 183.

61 Article 73(2) of the Rules provided that, where a request for an advisory opinion was received by the Registrar, “notice of such request shall … be given to any international organizations which are likely to be able to furnish information on the question.” 1926 PCIJ (ser. D) No. 1, at 81. The 1929 draft revised Statute would have omitted any reference to international organizations. The Director General of the ILO protested and, after lengthy discussion, the Conference of Signatories maintained the reference as it was in Article 73 of the Rules of Court. Minutes of the 1929 Conference of Signatories, League of Nations Doc. C.514.M.173.1929.V, at 42–46, 49.

62 Judge Anzilotti thought the term should be defined but did not press the issue in 1926. 1926 PCIJ (ser. D) No. 2, at 224–25 (1st add.).

63 National political organizations were thought to be excluded. Id. at 702.

64 The provision giving the ILO locus standi in contentious labor cases was included at the insistence of the ILO Director General. See Hudson, supra note 2, at 175–77.

65 International Labour Organisation, Const. Art. 9(5), as amended.

66 Id., Art. 7. Although 1986 amendments not yet in force propose to double the number of representatives, half the controlling body of the Office remains nongovernmental in nature.

67 Derek W. Bowett, The Law of International Institutions 5 (3d ed. 1975).

68 Alexandre Charles Kiss & Dinah Shelton, International Environmental Law 45 (1991).

69 In this regard, both the PCIJ and the ICJ have had to determine the scope of standing in advisory opinions. Taking an expansive view, the PCIJ indicated it might allow direct access to individuals in advisory opinions: “if [the authors of the petition] desired to supplement the statement contained in the petition, the Court would be prepared to receive an explanatory note from them, provided that it was filed with the Registry not later than October 26th, 1935.” Consistency of Certain Danzig Legislative Decrees with the Constitution of the Free City, 1935 PCIJ (ser. A/B) No. 65, at 43 (Advisory Opinion of Dec. 4). The ICJ has taken a more restrictive approach in administrative tribunal proceedings. In cases involving the UN Administrative Tribunal, the Court declined to hear from counsel who represented staff members of the United Nations, considering that Article 66 limits submissions to those coming from international organizations. See Effect of awards of compensation made by the U.N. Administrative Tribunal, 1954 ICJ Rep. 47 (Advisory Opinion of July 13); Letter to the Registrar, 1954 ICJ Pleadings (U.N. Administrative Tribunal) 394–95; and Judgments of the Administrative Tribunal of the I.L.O. upon complaints made against the U.N.E.S.C.O., 1956 ICJ Rep. 77, 80, 109, 114 (Advisory Opinion of Oct. 23).

70 Advisory Opinion No. 1, Designation of the Workers’ Delegate for the Netherlands at the Third Session of the International Labour Conference, 1922 PCIJ (ser. C) No. 1, at 5, 449; (ser. B) No. 1, at 11 (July 31). Numerous trade unions filed statements in the proceedings.

71 1926 PCIJ (ser. C) No. 12, at 259, 262, 269–87; Advisory Opinion No. 13, Competence of the ILO to Regulate, Incidentally, the Personal Work of the Employer, 1926 PCIJ (ser. B) No. 13, at 8 (July 23); (ser. A/B) No. 50, at 367.

72 See 1922 PCIJ (ser. B) No. 1, at 11 (Advisory Opinion of July 31) (citing Memorandum from Netherlands General Confederation of Trades Unions); 1922 PCIJ (ser. B) Nos. 2 & 3, at 13 (Advisory Opinion of Aug. 12) (citing Letter from the Central Association of French Agriculturalists).

73 See Third Annual Report, 1927 PCIJ (ser. E) No. 3, at 225. The organizations listed are: International Agricultural Commission, International Federation of Trades Unions, International Labour Organisation, International Association for Legal Protection of Workers, International Confederation of Agricultural Trades Unions, International Federation of Landworkers, International Institute of Agriculture (Rome), International Federation of Christian Trades Unions of Land-workers, International Organization of Industrial Employers, and International Confederation of Christian Trades Unions. Another organization that sought to intervene was denied permission be cause it was a member of one of the international trade unions.

74 1950 ICJ Pleadings (International Status of South West Africa) 324.

75 Robert Delson, Letter to the Registrar, 1950 ICJ Pleadings (2 Asylum) 227 (Mar. 7, 1950).

76 Letter from the Registrar, 1950 ICJ Pleadings (South West Africa) 327.

77 Id.

78 The league submitted different statements by different individuals and its official submission was forwarded nearly one month past the deadline set by the Court. The Court responded that the statement had been received too late to be included in the proceedings. For a detailed discussion of the league’s involvement in the South West Africa proceedings, see Roger S. Clark, The International League for Human Rights and South West Africa 1947–1957: The Human Rights NGO as Catalyst in the International Legal Process, Hum. Rts. Q., Fall 1981, at 101, 116–24.

79 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council resolution 276 (1970), 1971 ICJ Rep. 16 (Advisory Opinion of June 21).

80 1970 ICJ Pleadings (2 Legal Consequences) 639, 640, 644, 672, 678, 679.

81 Letter from the Registrar to Dr. Barry D. Levy (Mar. 28, 1994).

82 See Clark, supra note 78, at 119–20 n.76.

83 1970 ICJ Pleadings, supra note 80, at 636–37.

84 “With reference to your suggestion that there seems to be no explicit bar in the Statute or Rules to accepting a document from an interested group or individual,” the Registrar wrote, “the Court’s view would seem to have been that the expression of its powers in Article 66, paragraph 2, is limitative, and that expressio unius est exclusio alterius.” Id. at 639.

85 Id.

86 Article 71 of the United Nations Charter provides: “The Economic and Social Council may make suitable arrangements for consultation with non-governmental organizations which are concerned with matters within its competence. Such arrangements may be made with international organizations and, where appropriate, with national organizations after consultation with the Member of the United Nations concerned.”

87 The Advisory Committee of Jurists did not discuss this issue. See Scott, supra note 3.

88 1993 ICJ Rep. 319 (Order of July 14) (setting date for filing of memorials).

89 The former Communist regimes of Hungary and Czechoslovakia signed a bilateral treaty in 1977 to construct the Gabcikovo-Nagymaros system of locks. In 1989, following widespread public protests over and increasing knowledge about the adverse environmental effects of the project, the new democratic Government of Hungary suspended construction. On March 24, 1992, the Hungarian parliament approved termination of the treaty and a diplomatic note to this effect was delivered to the Czech and Slovak Federal Republic on May 19, 1992. Slovakia announced it would proceed with unilateral construction and diversion of the river in spite of Hungarian requests to negotiate a solution to the problem. Slovakia began unilateral diversion of the Danube on October 23, 1992. The two parties signed a special agreement on April 7, 1993, to submit the dispute to the Court. The case was filed July 2, 1993. See note 18 supra.

90 See Ian Brownlie, Arbitration and International Adjudication: Comments on a Paper by Judge M. Lacks, in International Arbitration: Past and Prospects 60 (A. H. A. Soons ed., 1990).

91 Id.

92 Article 50 of the ICJ Statute provides that the “Court may, at any time, entrust any individual, body, bureau, commission, or other organization that it may select, with the task of carrying out an enquiry or giving an expert opinion.”

93 PCIJ Statute, supra note 54, at 24. The provision may be based upon Article 90 of the Hague Convention for the Pacific Settlement of Disputes, Oct. 18, 1907, 36 Stat. 2199, 1 Bevans 577, and other provisions of arbitral agreements. Article 90 provided that “the Court may, at any time, entrust any individual, body, bureau, commission or other organization that it may select, with the task of carrying out an enquiry or giving an expert opinion.”

94 Advisory Committee of Jurists, Procès-Verbaux of Proceedings of the Committee (June 16–July 24, 1920), ch 3, Procedure, Art. 11, at 561 (League of Nations 1920).

95 1936 PCIJ (ser. D) No. 2, at 243, 247–49 (3d add.).

96 1930 PCIJ (ser. C) No. 18–1, at 1077 (Order of June 30).

97 1926 PCIJ (ser. B) No. 13 (July 23).

98 1926 PCIJ (ser. C) No. 12, at 287–88.

99 Hudson, supra note 2, at 378.

100 See text at notes 172–75 infra.

101 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14, 25, para. 31 (June 27).

102 Id. at 24, para. 29 (citing S.S. “Lotus” (Fr. v. Turk.), 1927 PCIJ (ser. A) No. 10, at 31).

103 Id. at 25, para. 30.

104 Id. at 44, para. 73.

105 Id.

106 Id.

107 Treaty on European Union, supra note 5, Art. 177.

108 Case 6/64, Costa v. ENEL, 1964 ECR 1143 (Fr. ed.), 1964 C.M.L.R. 425.

109 Some authors analogize the role of the Advocate General in all cases to the amicus curiae. See Lionel Neville Brown & Francis Geoffrey Jacobs, The Court of Justice of the European Communities 55 (3d ed. 1989).

110 LEXIS indicates 424 cases since 1967 in which amici curiae have participated in Court proceedings.

111 Protocol on the Statute of the Court of Justice of the European Economic Community, Apr. 17, 1957, Art. 37, 298 UNTS 147, as amended by Council Decision 88/591, 1989 O.J. (C 215) 1.

112 Cases 16 & 17/62, Confédération Nationale des Producteurs de Fruits et Légumes v. Council, 1962 ECR 471, 488–89, 2 C.M.L.R. 160 (1963).

113 Cases 41, 43, 48, 50, 111, 113 & 114/73, Generate Sucriere SA v. Commission, 1973 ECR 1465, 1 C.M.L.R. 215 (1974).

114 Case 113/77, NTN Toyt Bearing Co Ltd v. Council, 1979 ECR 1185, 2 C.M.L.R. 257 (1979).

115 This unincorporated body represents lawyers’ professional associations in the member states. See Case 155/79, A M & S Eur. Ltd v. Commission, 1982 ECR 1575, 2 C.M.L.R. 264 (1982).

116 Case 236/81, Celanese Chem. Co Inc v. Council & Commission, 1982 ECR 1183.

117 See Case 15/63, Lassalle v. European Parliament, 1964 ECR 31, 3 C.M.L.R. 259 (1964).

118 Cases 116, 124, and 143/77, GR Amylum NV & Tunnel Refineries Ltd v. Council & Commission, 1978 ECR 893, para. 9, 2 C.M.L.R. 590 (1982).

119 See supra note 113.

120 See supra note 115.

121 Council of Europe, European Court of Human Rights, Rules of Court A and B (1994). The amendment may have been adopted in reaction to a well-known case when the applicant learned from the press that his complaint had been submitted to the Court for decision. See Andrew Drzemczewski, The European Convention on Human Rights, 2 Y.B. Eur. L. 327, 328 (1982).

122 See Council of Europe, Protocol No. 11 to the European Convention on Human Rights and Explanatory Report, Art. 34, Doc. H(94)5 (1994), reprinted in 33 ILM 943 (1994).

123 Tyrer Case, 26 Eur. Ct. H.R. (ser. A) (1978).

124 Winterwerp v. Netherlands, 33 Eur. Ct. H.R. (ser. A) (1979).

125 Article 5(4) of the Convention, supra note 6, provides that “[e]veryone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

126 The Commission’s report in Winterwerp indicated that both the Commission and the Netherlands accepted without argument that “the control of lawfulness referred to in this provision should cover both the formal propriety of the detention procedure and the substantive justification for the deprivation of liberty.” Winterwerp, 31 Eur. Ct. H.R. (ser. B) at 39 (1977). The UK Government disagreed with this interpretation.

127 Young, James & Webster, 44 Eur. Ct. H.R. (ser. A) (1981).

128 TUC lawyers initially wrote to the Registrar expressing interest in participating because the unions involved in the case were TUC members and the judgment would be of great importance to the law and practice of British industrial relations. They indicated that the UK Government had shown itself unwilling to put forward all the submissions and arguments relevant to the case. In fact, the Thatcher Government did not appear interested in strongly defending the union shop laws. The application was made under Rules 38 and 41 of the Rules of Court, supra note 121. Alternatively, the TUC asked the Court for consideration under “its inherent jurisdiction.” See Letter to Registrar, Young, James & Webster, 39 Eur. Ct. H.R. (ser. B) at 111 (1981).

129 Letter from Registrar, id. at 151.

130 See 44 Eur. Ct. H.R. (ser. A) at 14, 25–26, paras. 31, 64.

131 Rules of Procedure, Art. 37(2). In May 1994, the rule was essentially incorporated in Protocol 11 to the Convention, supra note 122. In similar language, Protocol Article 36(2) provides that “[t]he President of the Court may, in the interest of the proper administration of justice, invite any High Contracting Party which is not a party to the proceedings or any person concerned who is not the applicant to submit written comments or take part in hearings.”

132 Statistical summaries sometimes show 25 cases, because in the Capuano case one amicus request was granted, while others were denied. It thus shows up under the listings both of petitions granted and of petitions denied.

133 Goddi Case, 76 Eur. Ct. H.R. (ser. A) (1984).

134 The unsolicited memorial arrived only three days before the opinion of the oral proceedings. Anthony Lester, Amici Curiae: Third Party Interventions before the European Court of Human Rights, in Protecting Human Rights: The European Dimension 341, 344 (Franz Matscher & Herbert Petzold eds., 1988).

135 Ashingdane Case, 93 Eur. Ct. H.R. (ser. A) 7, paras. 5–6 (1985).

136 Glasenapp Case, 104 Eur. Ct. H.R. (ser. A) (1986); Kosiek Case, 105 Eur. Ct. H.R. (ser. A) (1986).

137 Kosiek, 88 Eur. Ct. H.R. (ser. B) at 63 (1985).

138 Leander v. Sweden, 116 Eur. Ct. H.R. (ser. A) (1987). Perhaps through inadvertence, the opinion of the Court fails to refer to the amicus request. The amicus brief of the NCCL and the Court’s reply appear in 99 Eur. Ct. H.R. (ser. B).

139 Caleffi v. Italy and Vocaturo v. Italy, 206B-C Eur. Ct. H.R. (ser. A) at 20, para. 17 (1991).

140 Modinos v. Cyprus, 259 Eur. Ct. H.R. (ser. A) (1993). For Dudgeon v. United Kingdom, see 45 Eur. Ct. H.R. (ser. A) (1981).

141 Capuano v. Italy, 119 Eur. Ct. H.R. (ser. A) (1987).

142 In the Glasenapp and Kosiek cases, considered together by the plenary Court, British prison unions sought to file information about the United Kingdom. See 87 Eur. Ct. H.R. (ser. B) at 67 (1984), and 88 Eur. Ct. H.R. (ser. B) at 60 (1984).

143 Informationsverein Lentia v. Austria, 276 Eur. Ct. H.R. (ser. A) (1993).

144 X v. France, 234C Eur. Ct. H.R. (ser. A) (1992) (granting the request of the French Association of Hemophiliacs); Drozd & Janousek v. France & Spain, 240 Eur. Ct. H.R. (ser. A) (1992) (granting permission to the Executive Council of the Principality of Andorra); Y v. United Kingdom, 247A Eur. Ct. H.R. (ser. A) (1992). In the latter case, concerning corporal punishment in a British school, the parties achieved a friendly settlement and asked that the case be dismissed. The group Epoch World wide requested permission to file an amicus brief in opposition to dismissal and was denied. The case was dismissed.

145 Ruiz-Mateos v. Spain, 262 Eur. Ct. H.R. (ser. A) (1993).

146 Id., para. 56.

147 Malone Case, 82 Eur. Ct. H.R. (ser. A) (1984).

148 Letter to Registrar, Malone, 67 Eur. Ct. H.R. (ser. B) at 72, 73 (1983); Letter from Registrar, id. at 121.

149 Lingens Case, 103 Eur. Ct. H.R. (ser. A) (1986).

150 The request by the IPI (International Press Institute) is a good example of filings by nongovernmental groups. Its letter explained that the IPI is an organization of individuals dedicated to the principles of freedom of the press and journalists. Founded in 1951, it has approximately two thousand members in 66 countries, including almost all states in the Council of Europe. It has national committees in every member state, including Austria, and observer status with the Council of Europe, the United Nations and UNESCO. The IPI detailed its vital concern with freedom of expression, at the heart of the Lingens case:

First, the Court’s judgment in the case will clearly affect the defamation laws in Austria. Those are the laws under which the IPI’s members work in that country in reporting the news and commenting on it. Accordingly, the decision of the Court in this case is of direct interest to them. Secondly, the Commission’s report makes it clear that the case is concerned with the “exercise of freedom of expression in the sensitive area of political discussion” (paragraph 62). This is a broad issue of fundamental importance for the whole Council of Europe. The Court’s interpretation of Article 10 as regards the freedom of the press in political matters will clearly affect how that freedom is secured within the other Contracting States. It will thereby affect the manner in which the IPI’s members who are editors and journalists in those other Contracting States exercise their profession.

Request to Submit Written Comments, 86 Eur. Ct. H.R. (ser. B) at 42, 43 (1985). The IPI asked in particular for the opportunity to elaborate on the standard of defamatory comment permissible under Article 10, based on the laws and practices of member states and the United States: “(1) how far the protection afforded to ‘public figures’ differs from that afforded to other individuals under the law of defamation; and (2) how far a distinction is drawn between the expression of fact and the expression of opinion.” Id. at 44.

151 Monnell & Morris, 115 Eur. Ct. H.R. (ser. A) (1987).

152 For the application from JUSTICE, see 98 Eur. Ct. H.R. (ser. B) at 100 (1986). The UK Government’s letter of clarification appears in id. at 105. See also Lester, supra note 134, at 348.

153 Compare Ashingdane, supra note 135, para. 24 with the pleadings, 76 Eur. Ct. H.R. (ser. B) at 117 (1984).

154 Lingens Case, supra note 149, para. 41.

155 Brogan, 145B Eur. Ct. H.R. (ser. A) (1988).

156 Soering v. United Kingdom, 161 Eur. Ct. H.R. (ser. A) (1989).

157 The Court said, id., para. 102:

This “virtual consensus in Western European legal systems that the death penalty is, under current circumstances, no longer consistent with regional standards of justice”, to use the words of Amnesty International, is reflected in Protocol No. 6 to the Convention, which provides for the abolition of the death penalty in time of peace.

158 Observer & Guardian v. United Kingdom, 216 Eur. Ct. H.R. (ser. A) (1991); Sunday Times v. United Kingdom, 217 Eur. Ct. H.R. (ser. A) (1991).

159 “For the avoidance of doubt, and having in mind the written comments that were submitted in this case by ‘Article 19’ … the Court would only add to the foregoing that Article 10 of the Convention does not in terms prohibit the imposition of prior restraints on publication, as such.” Observer & Guardian, supra note 158, para. 60.

160 See opinion of the Court, id., paras. 61-65; the partly dissenting opinion of Judge de Meyer (concerning prior restraint), joined by Judges Pettiti, Russo, Foighel and Bigi; and the partly dissenting opinion of Judge Pekkanen. Of the 24 European Court judges, 10 dissented on the issue of prior restraints.

161 Partly dissenting opinion of Judge Morenilla, id., para. 6.

162 Pham Hoang v. France, 243A Eur. Ct. H.R. (ser. A) (1992). The Bar of the Conseil d’Etat and Court of Cassation submitted comments, supplemented by its chairman.

163 Id., paras. 24–25.

164 Id., para. 40.

165 Open Door & Well Woman v. Ireland, 246 Eur. Ct. H.R. (ser. A) (1992).

166 Id., para. 40.

167 Brannigan & McBride v. United Kingdom, 258B Eur. Ct. H.R. (ser. A) (1993).

168 Id., paras. 42, 45, 62.

169 Id., Concurring Opinion of Judge Martens, para. 3.

170 The remaining case was Ashingdane, supra note 135, concerning the treatment of mental patients. The rights of the mentally ill have been a problem throughout Europe.

171 European Court of Human Rights, Survey of Activities (1959–1991) 37 (1992).

172 See Thomas Buergenthal, The Advisory Practice of the Inter-American Human Rights Court, 79 AJIL 1, 15 (1985).

173 Rules of Procedure of the Inter-American Court of Human Rights, Art. 34(1), in Organization of American States, Handbook of Existing Rules Pertaining to Human Rights in the Inter-American System, OEA/Ser.L/V/II.60, doc. 28, at 159 (1983).

174 Id.

175 Only in its most recent opinion, the Gangaram Panday case (No. 10.274, Judgment of Jan. 21, 1994), did the Court fail to refer to the amicus briefs that were filed.

176 “Other Treaties” Subject to the Advisory Jurisdiction of the Court (Art. 64 American Convention on Human Rights), 1 Inter-Am. Ct. H.R. (ser. A) para. 5 (1982).

177 Brief for the International League for Human Rights and the Lawyers Committee for International Human Rights, id. (ser. B) 123, 128 (1982).

178 Brief for Urban Morgan Institute for Human Rights, id. at 144, 151.

179 Restrictions to the Death Penalty (Arts. 4(2) and 4(4) American Convention on Human Rights), 3 Inter-Am. Ct. H.R. (ser. A) para. 5 (1983).

180 María Elba Martines, in her capacity as lawyer for the Argentine Foundation Justice and Peace, was accepted as amicus curiae in Advisory Opinion No. 13. This extremely important proceeding concerning the powers of the Inter-American Commission produced 11 amicus briefs. Advisory Opinion OC-13/93, Certain Attributes of the Inter-American Commission on Human Rights (Arts. 41, 42, 46, 47, 50 and 51 of the American Convention on Human Rights), 13 Inter-Am. Ct. H.R. (ser. A) para. 9 (1993).

181 Compare the opinion, supra note 176, para. 17 with the amicus brief, supra note 177, at 134–40.

182 Compare the opinion, supra note 176, paras. 18–31 with the amicus brief, supra note 177, at 165–69.

183 Compare Effect of Reservations on the Entry into Force of the American Convention (Arts. 74 and 75), 2 Inter-Am. Ct. H.R. (ser. A) paras. 18–19 (1982) with id. (ser. B) at 80–82.

184 See id. (ser. B) at 82 (quoting Eur. Comm’n H.R. Application No. 788/60 (Aus. v. It.), 4 Y.B. Eur. Conv. on H.R. 116, 138, 140 (1961) (decision on admissibility)). The quotation in the opinion appears in id. (ser. A) para. 29.

185 Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Arts. 13 and 29 American Convention on Human Rights), 5 Inter-Am. Ct. H.R. (ser. A) para. 60 (1985). Most of the 11 amicus briefs filed in the case came from professional journalists’ associations: the Inter-American Press Association; the Colegio de Periodistas of Costa Rica; the World Press Freedom Committee; the International Press Institute; the Newspaper Guild and International Association of Broadcasting; the American Society of Newspaper Editors and Associated Press; the Federación Latinoamericana de Periodistas, the International League for Human Rights, the Lawyers Committee, Americas Watch and the Committee to Protect Journalism.

186 See Certain Attributes of the Inter-American Commission on Human Rights, supra note 180.

187 Statement of Judge Sir Robert Jennings, President of the International Court of Justice, read by the Registrar of the Court to the plenary session of the UN Conference on Environment and Development (June 11, 1992), reprinted as The Role of the International Court of Justice in the Development of International Environment Protection Law, 1 Reciel 240 (1993).

188 See text at notes 53–59 supra.