Nomos

Amicus Curiae before International Courts and Tribunals

Successful Dispute Resolution

Astrid Wiik

4

Successful Dispute Resolution

edited byProfessor Dr. Dres. h.c. Burkhard Hess, Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law, Luxembourgem. Prof. Dr. Dr. h.c. Professor Rüdiger Wolfrum, Max Planck Foundation for International Peace and the Rule of Law, HeidelbergProfessor Dr. Dr. h.c. Thomas Pfeiffer, Institute for Comparative Law, Conflict of Laws and International Business Law, Heidelberg University

Volume 4

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Astrid Wiik

Amicus Curiae before International Courts and Tribunals

Nomos

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© Coverpicture: left: Max Planck Institut Heidelberg, © Carola Nerbel, Architekturfotografie in Heidelbergcentre: Institut für internationales Privat- und Wirtschaftsrecht der Universität Heidelberg, © Jens Benninghofenright: Max Planck Institut Luxemburg, © Christian Aschman

The Deutsche Nationalbibliothek lists this publication in the Deutsche Nationalbibliografie; detailed bibliographic data are available on the Internet at http://dnb.d-nb.de

a.t.: Heidelberg, Univ., Diss., 2016

ISBN 978-3-8487-3240-1 (Print) 978-3-8452-7592-5 (ePDF)

British Library Cataloguing-in-Publication DataA catalogue record for this book is available from the British Library.

ISBN: HB (Hart) 978-1-5099-0891-2

Library of Congress Cataloging-in-Publication DataWiik, AstridAmicus Curiae before International Courts and TribunalsAstrid Wiik734 p.Includes bibliographic references.

ISBN 978-1-5099-0891-2 (hardcover Hart)

1st Edition 2018 © Nomos Verlagsgesellschaft, Baden-Baden, Germany 2018. Printed and bound in Germany.

This work is subject to copyright. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. Under § 54 of the German Copyright Law where copies are made for other than private use a fee is payable to “Verwertungs gesellschaft Wort”, Munich.

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To my family

Preface

At first sight, one might expect that all legal systems are firmly based onfundamental concepts, implemented by settled institutions. However, inactuality, these preconditions are usually not met as the law is part of thesocietal, economic and political reality of a broader environment, reflec-tive of the status of and changes in human society in both history andmodern times. This situation is especially true for public international law.Here, one fundamental issue concerns the status of actors in the interna-tional legal order: are only states and international organizations subjectsof modern public international law? Or do we accept that other actors, likenon-governmental organizations, multinational enterprises and individu-als, enter the scene to vindicate their rights (and individual protections) atthe international level? Much has been written about this subject and thereis still much scholarship needed to assess the great changes in, and affect-ing, the international legal order at the beginning of the 21st century.

The uncertainties of the current situation are also reflected in thepractices of international courts and tribunals. The proliferation of thesecourts and tribunals over the last decades – not only with regard to thenumber of institutions but also in relation to the ever-growing corpus ofcase-law and practice – has been accompanied by a procedural phe-nomenon called “amicus curiae”. Although the concept as such is largelyunsettled, it is often understood as a procedural vehicle for non-parties, of-ten for non-state actors without legal standing, to influence the decision-making processes of international courts and tribunals by submitting writ-ten and – occasionally – even oral statements to those courts. The admissi-bility of these statements is being disputed, but there is a growing tenden-cy of permitting these interventions, at least in investment arbitration andbefore human rights bodies. Much attention has been paid to this develop-ment which, at a procedural level, reflects the unsettled status of actors inmodern public international law. At the same time, the expansion of theamicus curiae corresponds to the pursuit of more transparency in interna-tional dispute settlement and reflects the search for more legitimacy in in-ternational dispute resolution processes as a whole.

The PhD thesis of Astrid Wiik contributes to this ongoing debate in aremarkable way: She bases her analysis on a broad empirical research by

7

analysing the case law and the practice of several international courts (theICJ, the ITLOS, the ECtHR) and dispute settlement bodies such as theWTO Appellate Body and investment arbitration. Her research questiondoes not only ask about the different variations of the amicus curiae;Astrid Wiik also wants to know to what extent amici curiae really influ-ence international dispute settlement processes and whether the expecta-tion that their involvement in dispute resolution would improve the out-comes in a positive way is really justified. It does not come as a surprisethat she comes up with a much more nuanced result than other studies inthis field. Indeed, this PhD is the first on the amicus curiae phenomenonwhich is based on a comprehensive review of the practice of internationalcourts and tribunals.

This PhD was written in the framework of the International Max PlanckResearch School on Successful Dispute Resolution. This Doctoral Schoolwas originally organized by the Institute for Comparative Law, and Busi-ness Law of the University of Heidelberg and the Max Planck InstituteHeidelberg for Comparative Public Law and International Law. In themeantime, the Max Planck Institute Luxembourg for European, Interna-tional and Regulatory Procedural Law joined the School, as did the LawFaculty of the University of Luxembourg. When she worked on her PhD,Astrid Wiik was strongly involved in the debates of the students and theirsupervisors; the School offered her the opportunity to spend some time atthe Permanent Court of Arbitration in The Hague where she obtainedmany insights into the “real” world of international dispute settlement. Herstudy profited considerably from an academic environment which permit-ted her to engage in comparative research at different research centres inEurope (including Heidelberg, Cambridge and The Hague).

After several years of steady work, this PhD project has been success-fully completed. This is a great moment, not only for the candidate, butalso for the supervisor who has accompanied the author throughout theprocess. In the case of Astrid Wiik, it was my pleasure to see her researchexpanding and to share the upcoming results with Rüdiger Wolfrum as aco-supervisor. And I’m also glad to see that Astrid Wiik has started anacademic career at Heidelberg University.

Luxembourg, 8 February 2018 Burkhard Hess

Preface

8

Acknowledgments

This book is the outcome of a (long) journey that started at HeidelbergUniversity in 2009, with a keen interest in the role and functioning of in-ternational courts and tribunals in the 21st century in view of the changinglandscape of actors in the international arena. The concept of amicus curi-ae was repeatedly mentioned in literature as a tool to improve internation-al dispute settlement. However, case law from inter-state courts and theWTO Appellate Body indicated a strong suspicion of this instrument. Thelack of a definition of the instrument before any of the international courtsand tribunals reviewed when I first embarked on this topic did not con-tribute to its reputation. Accordingly, the study was based on two aims:first, to grasp the reality of amicus curiae before international courts andtribunals. Second, to contrast this reality – including the effectiveness ofthe instrument – with the expectations attributed to it. The dissertation waswritten between 2009 and 2014. For the publication, new developmentsuntil November 2016 were included. During the years of writing the dis-sertation and preparing the book, amicus curiae practice has continued toexpand and solidify, and definitions of the concept before some courts andan increasing number of codifications were achieved. It is the hope thatthis book will make a humble contribution to the ongoing debates andcodification efforts surrounding amicus curiae.

This endeavor would not have been possible without the continuoussupport of my supervisor Professor Burkhard Hess, to whom I am most in-debted for his patient guidance and precious advice throughout the writingof the Ph.D. and until its publication. I am also deeply grateful to Profes-sor Rüdiger Wolfrum for his highly valuable feedback on the Ph.D. (andgeneral matters of academia). Without their directive encouragement andadvice, I would not have embraced the excitement and uncertainties of anacademic career. I would also like to thank Dr. Karin Oellers-Frahm forfirst pointing me to the topic and for sparking my interest in internationaldispute settlement.

Thanks to Professor Hess and Professor Wolfrum, I was accepted intothe Graduate Academy on Successful Dispute Resolution and the Interna-tional Max Planck Research School for Successful Dispute Resolution inInternational Law. Like the Institute for Comparative Law, Conflict of

9

Laws and International Business Law at Heidelberg University and theMax Planck Institute for Comparative Public Law and International Law,it provided an inspiring work environment in Heidelberg. I also had thepleasure to spend some time as a visiting fellow at the Lauterpacht Centrefor International Law in Cambridge in the springs of 2010 and 2011, and Iwould like to thank its then Director Professor James Crawford and thestaff and visitors at the Centre for their warm welcome. I am further in-debted to my friends and former colleagues at the Permanent Court of Ar-bitration. The many discussions on and off topic with professors, friendsand colleagues, as well as the overall vibrant research communities in Hei-delberg, Cambridge, and The Hague formed a constant source of motiva-tion and new insights into the field of international dispute settlement.

At all the mentioned places, friends and colleagues provided comments,encouragement and the requisite amount of humor and patience to makethe experience worthwhile. I am particularly grateful to Natasa Mavroni-cola, Evgeniya Goriatcheva, Magdalena Słok-Wodkowska, Constanze vonRoeder, Jara Mínguez, Naya Pessoa, Katharina Domke-Schmidt, ElisaNovic, Sonja Firl, Clemens Zick, Lisa Staben, Yanying Li, AndreasLaupp, Martin Doe, Margret Solveigardottir and Judith Ulshöfer for read-ing and commenting on chapters and outlines of the dissertation, for help-ing with IT and formatting matters, and for tea, cookies and encourage-ment.

I am also grateful for the generous financial support provided by theLandesstiftung Baden-Württemberg, the IMPRS-SDR and the GermanAcademic Exchange Service DAAD, and to Nomos and Hart Publishingand the editors of the series for offering me the opportunity to publish thedissertation.

Words are insufficient to thank my extended family for the immensesupport and cheerleading that I have received from over the years. My par-ents’ intellectual curiosity in this world, their humanist values and theirlove are key guideposts in my life, for which I am very grateful. My sib-lings have always been great companions, and I would like to thank themfor their support and particularly Ivar for his help during the final stretchof the dissertation. I would also like to thank my Mexican family, Noraand Jorge Zertuche, and my Heidelberg family, Volker and Charlotte So-ergel, for their interest in my work, their help and many happy hours andinspiring conversations. I would like to dedicate this book to them all.

Acknowledgments

10

Summary of Contents

Preface 7

Acknowledgments 9

Table of Abbreviations 23

IntroductionChapter § 1 25

StructureA. 29MethodologyB. 30Scope of the studyC. 34

The ‘international’ amicus curiaePart I 41

Great expectations? Presumed functions anddrawbacks of amicus curiae participation

Chapter § 243

Presumed functions of amicus curiaeA. 43Presumed drawbacksB. 64ConclusionC. 72

An international instrumentChapter § 3 73

Amicus curiae before national courtsA. 74Emergence and rise of amicus curiae before international courtsand tribunals

B.91

ConclusionC. 121

Characteristics, status and function of amicus curiaebefore international courts

Chapter § 4123

Characteristics of the international amicus curiaeA. 123Functions of the international amicus curiaeB. 132Amicus curiae and other forms of non-party participationC. 157ConclusionD. 172

11

Commonalities and divergences: the procedural laws ofamicus curiae participation

Part II175

Admission of amicus curiae to the proceedingsChapter § 5 177

Legal bases for amicus curiae participationA. 177Conditions concerning the person of amicus curiaeB. 228Request for leave proceduresC. 266ConclusionD. 314

Amici curiae in the proceedingsChapter § 6 317

Oral and written participationA. 318Recorded participationB. 332Formalization of participationC. 334Substantive requirements and the content of submissionsD. 345Submission of evidenceE. 404Access to documentsF. 408ConclusionG. 425

The added value of the international amicus curiaePart III 429

Does content matter? Substantive effectiveness ofamicus curiae submissions

Chapter § 7431

An obligation to consider?A. 433International Court of JusticeB. 435International Tribunal for the Law of the SeaC. 440European Court of Human RightsD. 443Inter-American Court of Human RightsE. 450African Court on Human and Peoples’ RightsF. 459WTO Appellate Body and panelsG. 459Investor-state arbitrationH. 469Comparative analysisI. 479ConclusionJ. 487

Summary of Contents

12

Effects on the international dispute settlement systemChapter § 8 489

Effect on the relationship between the court, the disputingparties and the member states: amici curiae as evidence of anassertive international judiciary?

A.

490Public interest: amicus curiae as motor and evidence of anexpanding judicial function?

B.504

Amicus curiae as a tool to increase the legitimacy ofinternational adjudication?

C.525

Increased coherence? Impact on international lawD. 535Transparency: demise of confidentiality and access to theproceedings and case documents?

E.538

Impact on locus standi: amicus curiae as a precursor tointernational legal standing?

F.542

And the drawbacks?G. 546ConclusionH. 567

ConclusionChapter § 9 569

What is it?A. 569Added value of amicus curiae participation in internationaldispute settlement

B.571

Annex I: Cases with amicus curiae involvement 575

Annex II 705

Bibliography 707

Summary of Contents

13

Contents

Preface 7

Acknowledgments 9

Table of Abbreviations 23

IntroductionChapter § 1 25

StructureA. 29MethodologyB. 30Scope of the studyC. 34

The ‘international’ amicus curiaePart I 41

Great expectations? Presumed functions anddrawbacks of amicus curiae participation

Chapter § 243

Presumed functions of amicus curiaeA. 43Broader access to informationI. 43Representation of ‘the’ public interestII. 47Legitimacy and democratizationIII. 53Contribution to the coherence of international lawIV. 59Increased transparencyV. 62

Presumed drawbacksB. 64Practical burdensI. 65Compromising the parties’ rightsII. 65Politicization of disputes, de-legitimization and lobbyismIII. 67Overwhelming developing countriesIV. 70

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Unmanageable quantities of submissionsV. 71Denaturing of the judicial functionVI. 72

ConclusionC. 72

An international instrumentChapter § 3 73

Amicus curiae before national courtsA. 74The origins of amicus curiaeI. 74Amicus curiae before the English courtsII. 76Amicus curiae before the United States Federal Courtsand the Supreme Court

III.81

Internationalization: amicus curiae in civil law systemsand in inter- and supranational legal instruments

IV.86

Comparative analysisV. 90Emergence and rise of amicus curiae before international courtsand tribunals

B.91

International Court of JusticeI. 91International Tribunal for the Law of the SeaII. 100European Court of Human RightsIII. 103Inter-American Court of Human RightsIV. 106African Court on Human and Peoples’ RightsV. 108WTO Appellate Body and panelsVI. 109Investor-state arbitrationVII. 115

ConclusionC. 121

Characteristics, status and function of amicus curiaebefore international courts

Chapter § 4123

Characteristics of the international amicus curiaeA. 123A procedural instrumentI. 124A non-party and a non-party instrumentII. 126Transmission of informationIII. 129An interested participantIV. 130An instrument of non-state actors?V. 132

Functions of the international amicus curiaeB. 132

Contents

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Information-based amicus curiaeI. 133Interest-based amicus curiaeII. 138

International Court of Justice and InternationalTribunal for the Law of the Sea

1.139

European Court of Human Rights2. 140Inter-American Court of Human Rights3. 144WTO Appellate Body and panels4. 146Investor-state arbitration5. 148Comparative analysis6. 152

Systemic amicus curiaeIII. 152AnalysisIV. 154

The myth of ‘the’ international amicus curiae1. 155An evolving concept2. 156Are there limits to the functions amici curiae mayassume?

3.156

Amicus curiae and other forms of non-party participationC. 157International Court of Justice and International Tribunalfor the Law of the Sea

I.159

WTO Appellate Body and panelsII. 164Investor-state arbitrationIII. 168Comparative analysisIV. 171

ConclusionD. 172

Commonalities and divergences: the procedural laws ofamicus curiae participation

Part II175

Admission of amicus curiae to the proceedingsChapter § 5 177

Legal bases for amicus curiae participationA. 177International Court of JusticeI. 180International Tribunal for the Law of the SeaII. 191European Court of Human RightsIII. 195Inter-American Court of Human RightsIV. 197African Court on Human and Peoples’ RightsV. 200WTO Appellate Body and panelsVI. 202

Panels1. 202

Contents

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Appellate Body2. 207Investor-state arbitrationVII. 213

Clauses in investment treaties1. 213Clauses in institutional procedural rules2. 215Implied powers3. 222Ad hoc agreements4. 224

Comparative analysisVIII. 225Codification and informal doctrine precedent?1. 226Common regulatory approaches2. 227

Conditions concerning the person of amicus curiaeB. 228International Court of JusticeI. 229International Tribunal for the Law of the SeaII. 231European Court of Human RightsIII. 235Inter-American Court of Human RightsIV. 241African Court on Human and Peoples’ RightsV. 246WTO Appellate Body and panelsVI. 247Investor-state arbitrationVII. 250

Legal standards1. 250Application2. 253

Comparative analysisVIII. 261Request for leave proceduresC. 266

Formal requirementsI. 269Timing1. 269Form and length2. 283

Substantive requirements concerning the applicationII. 284International Court of Justice1. 284European Court on Human Rights2. 284African Court on Human and Peoples’ Rights3. 286WTO Appellate Body and panels4. 286Investor-state arbitration5. 287

Full discretion: decision on admissibilityIII. 304Comparative analysisIV. 312

ConclusionD. 314

Amici curiae in the proceedingsChapter § 6 317

Oral and written participationA. 318

Contents

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International Court of JusticeI. 318International Tribunal for the Law of the SeaII. 319European Court of Human RightsIII. 320Inter-American Court of Human RightsIV. 323African Court on Human and Peoples’ RightsV. 325WTO Appellate Body and panelsVI. 326Investor-state arbitrationVII. 328Comparative AnalysisVIII. 330

Confidential and/or private nature of the disputesettlement mechanism

1.331

Regulatory reasons2. 332Efficiency, costs and control3. 332Personal views of judges4. 332

Recorded participationB. 332Formalization of participationC. 334

Form of written submissionsI. 335Length1. 335Language2. 336Authentification3. 339Failure to comply4. 342

Comparative analysisII. 343Substantive requirements and the content of submissionsD. 345

International Court of Justice and International Tribunalfor the Law of the Sea

I.346

European Court of Human RightsII. 350Inter-American Court of Human RightsIII. 362African Court on Human and Peoples’ RightsIV. 369WTO Appellate Body and panelsV. 370Investor-state arbitrationVI. 381

Legal standards1. 381Particular knowledge or perspective: human rights andEU law?

2.382

Within the scope of the dispute3. 388Applicable law and its limits4. 393

Comparative analysisVII. 401Submission of evidenceE. 404Access to documentsF. 408

Contents

19

International Court of Justice and International Tribunalfor the Law of the Sea

I.409

European Court of Human Rights, Inter-American Courtof Human Rights and African Court on Human andPeoples’ Rights

II.

411WTO Appellate Body and panelsIII. 412Investor-state arbitrationIV. 417Comparative analysisV. 425

ConclusionG. 425

The added value of the international amicus curiaePart III 429

Does content matter? Substantive effectiveness ofamicus curiae submissions

Chapter § 7431

An obligation to consider?A. 433International Court of JusticeB. 435International Tribunal for the Law of the SeaC. 440European Court of Human RightsD. 443Inter-American Court of Human RightsE. 450African Court on Human and Peoples’ RightsF. 459WTO Appellate Body and panelsG. 459Investor-state arbitrationH. 469Comparative analysisI. 479

Why the hesitation?I. 482Elements of successful briefsII. 484Limits to the consideration of briefsIII. 484

ConclusionJ. 487

Contents

20

Effects on the international dispute settlement systemChapter § 8 489

Effect on the relationship between the court, the disputingparties and the member states: amici curiae as evidence of anassertive international judiciary?

A.

490International Court of JusticeI. 491International Tribunal for the Law of the SeaII. 493European Court of Human Rights and African Court onHuman and Peoples’ Rights

III.493

Inter-American Court of Human RightsIV. 493WTO Appellate Body and panelsV. 494Investor-state arbitrationVI. 499Comparative analysisVII. 504

Public interest: amicus curiae as motor and evidence of anexpanding judicial function?

B.504

International Court of JusticeI. 507International Tribunal for the Law of the SeaII. 510European Court of Human RightsIII. 511Inter-American Court of Human RightsIV. 512WTO Appellate Body and panelsV. 513Investor-state arbitrationVI. 517Comparative AnalysisVII. 521

The right agent?1. 522Denaturation of judicial proceedings?2. 523

Amicus curiae as a tool to increase the legitimacy ofinternational adjudication?

C.525

Procedural legitimacyI. 526Substantive legitimacyII. 529Conditions: representativity and accountabilityIII. 531

Increased coherence? Impact on international lawD. 535Transparency: demise of confidentiality and access to theproceedings and case documents?

E.538

Impact on locus standi: amicus curiae as a precursor tointernational legal standing?

F.542

And the drawbacks?G. 546

Contents

21

Parties’ rightsI. 547Due process1. 548Procedural fairness and equality between the parties2. 557

Practical burdensII. 561Right to a speedy trial and undue delay?1. 561Exploding costs?2. 562

ConclusionH. 567

ConclusionChapter § 9 569

What is it?A. 569Added value of amicus curiae participation in internationaldispute settlement

B.571

Annex I: Cases with amicus curiae involvement 575

Annex II 705

Bibliography 707

Contents

22

Table of Abbreviations

ACHR American Convention on Human RightsBIT Bilateral Investment TreatyCAFTA Dominican Republic-Central America Free Trade Agree-

mentCEJIL Center for Justice and International LawCIEL Centre for International Environmental LawDSU Dispute Settlement UnderstandingEC European CommissionECHR European Convention on Human RightsECJ European Court of JusticeECtHR European Court of Human RightsECtHR Rules Rules of the European Court of Human RightsEU European UnionFAO Food and Agriculture Organization of the United NationsFTC Free Trade Commission (NAFTA)FTC Note FTC Note of Interpretation of Certain Chapter 11 Provi-

sionsFTC Statement FTC Statement on non-disputing party participationGPI Stichting Greenpeace InternationalIACtHR Inter-American Court of Human RightsIACtHR Rules Rules of the Inter-American Court of Human RightsIACtHR Statute Statute of the Inter-American Court of Human RightsICC International Criminal CourtICJ International Court of JusticeICJ Rules Rules of Procedure of the International Court of JusticeICJ Statute Statute of the International Court of JusticeICSID International Centre for the Settlement of Investment Dis-

putesICTR International Criminal Tribunal for RwandaICTY International Criminal Tribunal for the former YugoslaviaIISD International Institute for Sustainable DevelopmentILO International Labour OrganizationITLOS International Tribunal for the Law of the Sea

23

ITLOS Rules Rules of the International Tribunal for the Law of the SeaITLOS Statute Statute of the International Tribunal for the Law of the

SeaIUCN International Union for Conservation of NatureIUSCT Iran-United States Claims TribunalMIT Multilateral investment treatyNAFTA North American Free Trade AgreementNGO Non-governmental organizationOAS Organization of American StatesPCA Permanent Court of ArbitrationPCIJ Permanent Court of International JusticeSCSL Special Court for Sierra LeoneSPS Agreement The WTO Agreement on the Application of Sanitary and

Phytosanitary MeasuresTBT Agreement WTO Agreement on Technical Barriers to TradeUNCITRAL United Nations Commission on International Trade LawUNCTAD United Nations Conference on Trade and DevelopmentUNDP United Nations Development ProgrammeVCLT Vienna Convention on the Law of TreatiesWTO World Trade Organization

Table of Abbreviations

24

Introduction

Amici curiae skyrocketed to international fame in the late 1990 after theWTO Appellate Body decided in US–Shrimp that panels possessed an un-written authority to accept submissions from non-governmental organisa-tions lobbying for the inclusion of environmental standards in trade dis-putes.1 The admission by investment arbitration tribunals of equally unso-licited amicus curiae submissions by non-state actors a few years laterfirmly entrenched the issue on the agenda of trade and investment lawpractitioners.2 In the heat of the debate, few realized that amicus curiaeparticipation was quite common before many other international courtsand tribunals. The ECtHR, the IACtHR and most international and hybridcriminal tribunals had a thriving amicus curiae practice, and even the ICJand the IUSCT had had (admittedly few and sporadic) encounters with theconcept.

What is amicus curiae? Latin for ‘friend of the court’ the term indicatesthat amicus curiae is an instrument for the benefit of the court, that it as-sists it in some manner – with the term ‘friend’ indicating that it is notobliged to do so. An often-quoted entry in Black’s Law Dictionary definesamicus curiae as ‘[a] person who is not a party to a lawsuit but who peti-tions the court or is requested by the court to file a brief in the action be-cause that person has a strong interest in the subject matter.’3 This view isnot unchallenged. Some require amicus curiae to act as an uninterestedand neutral assistant.4 Others see amici as lobbyists of their own, a public

Chapter § 1

1 United States – Import Prohibition of Certain Shrimp and Shrimp Products (here-inafter: US–Shrimp), Report of the Appellate Body, adopted on 6 November 1998,WT/DS58/AB/R, para. 83.

2 Methanex Corporation v. United States of America (hereinafter: Methanex v. USA),Decision of the Tribunal on Petitions from Third Persons to Intervene as ‘Amici Cu-riae’, 15 January 2001; United Parcel Service of America Inc. v. Canada (here-inafter: UPS v. Canada), Decision of the Tribunal on Petitions for Intervention andParticipation as Amici Curiae, 17 October 2001.

3 B. Garner, Black’s law dictionary, 7th Ed., St. Paul 1999, p. 83.4 G. Umbricht, An “amicus curiae brief” on amicus curiae briefs at the WTO, 4 Jour-

nal of International Economic Law (2001), p. 778 (Amicus curiae is ‘a private per-son or entity who has no direct legal interest at stake in the dispute at hand [and]

25

or the parties’ interests.5 The plethora of views held in academia (and innational legal systems) is reflected in the practice of international courtsand tribunals. With the exception of the IACtHR, international courts and

may submit an unsolicited report to the court in which such person or entity mayarticulate its own view on legal questions and inform the court about factual cir-cumstances in order to facilitate the court’s ability to decide the case.’. [Referencesomitted].); The Prosecutor v. Kanyarukiga, Case No. ICTR-2002-78, Decision onamicus curiae request by the Kigali Bar Association, 22 February 2008, Rec. No.ICTR-02-78-0091/1, para. 7 (‘[J]urisprudence indicates that the role of an amicuscuriae is not to represent the interests of a particular party, but rather to assist thecourt by providing an objective view in relation to the issues under consideration.’);P. De Cesari, NGOs and the activities of the ad hoc criminal tribunals for formerYugoslavia and Rwanda, in: T. Treves et al. (Eds.), Civil society, internationalcourts and compliance bodies, The Hague 2005, p. 119 (‘If the authorization doesnot indicate exactly the amount of information required, the NGO must try not tobroaden the scope of its opinion ... Leave is normally granted for technical and limi-ted support and not recommendations or suggestions. The aim of amicus curiae par-ticipation is to assist the judicial process and not to attempt to put pressure on it.’).

5 P. Mavroidis, Amicus curiae briefs before the WTO: much ado about nothing, in: A.v. Bogdandy et al. (Eds.), European integration and international coordination:studies in transnational economic law in honour of Claus-Dieter Ehlermann, TheHague 2002, p. 317; C. Brühwiler, Amicus curiae in the WTO dispute settlementprocedure: a developing country’s foe?, 60 Aussenwirtschaft (2005), p. 348(‘[T]oday’s amici try to highlight factual or legal aspects associated with their spe-cific concerns or interests.’); M. Frigessi di Rattalma, NGOs before the EuropeanCourt of Human Rights: beyond amicus curiae participation, in: T. Treves et al.(Eds.), Civil society, international courts and compliance bodies, The Hague 2005,p. 57 (‘[A]n amicus curiae is a person or organization with an interest in or view onthe subject matter of a case who, without being a party, petitions the ECHR for per-mission to file a brief suggesting matters of fact and of law in order to propose adecision consistent with its views. The interest of an amicus tends to be of a generalnature, such as the desire to promote public interests.’); Y. Ronen/Y. Naggan, Thirdparties, in: C. Romano/K. Alter/Y. Shany (Eds.), The Oxford Handbook of interna-tional adjudication, Oxford 2014, p. 821 (‘Broadly defined, amici curiae are naturalor legal persons who, without being parties to the case, submit their views to thecourt on matters of fact and law, in the pursuit of a public interest related to the sub-ject matter of the case.’).

Chapter § 1 Introduction

26

tribunals largely have abstained from defining the concept and its func-tions.6 Overall, the term amicus curiae is vague and unclear.7

Despite these uncertainties, many NGOs support the notion of amicuscuriae participation in international dispute settlement. The concept islauded as an opportunity to introduce public values into trade and invest-ment-focused legal regimes whose dispute settlement processes are said tooperate so effectively as to stymie national measures issued by democrati-cally elected governments and parliaments in the public interest.8 Manyscholars and NGOs argue that some form of participation for affected indi-viduals and communities is indispensable to ensure the continued legiti-macy of international adjudication. They welcome amicus curiae as anagent of change from a state-focused to a peoples-focused dispute settle-ment system where the selective espousal of national interests by statescan be mitigated by this form of direct participation.9

However, not all view the instrument positively. Many states and inter-national practitioners on and before the benches worry that its involve-

6 Exception: Suez, Sociedad General de Aguas de Barcelona SA, and Vivendi Univer-sal SA v. Argentine Republic (hereinafter: Suez/Vivendi v. Argentina), Order in Re-sponse to a Petition for Participation as Amicus Curiae, 19 May 2005, ICSID CaseNo. ARB/03/19, para.13. See also The Prosecutor v. Fulgence Kayishema, CaseNo. ICTR-2001-67-I, Decision on ADAD’s (The organisation of ICTR defencecounsel) motion for reconsideration of request for leave to appear as amicus curiae,1 July 2008, para. 10, where the ICTR emphasizes that amicus curiae participationis at the discretion of the Chamber and that it serves to assist the Chamber ‘in itsconsideration of the questions at issue, and in the proper determination of the casebefore it.’ But see Prosecutor v. Bagosora, Case No. ICTR-96-7-T, Decision on theAmicus Curiae Application by the Government of the Kingdom of Belgium, 6 June1998, where the ICTR found that an amicus may have ‘strong interests in or viewson the subject matter before the court.’

7 C. Tams/C. Zoellner, Amici Curiae im internationalen Investitionsschutzrecht, 45Archiv des Völkerrechts (2007), p. 220 (‚Der Begriff amicus curiae ist schillerndund wird vielfach verwendet.‘); J. Bellhouse/A. Lavers, The modern amicus curiae:a role in arbitration?, 23 Civil Justice Quarterly (2004), p. 187.

8 R. Higgins, International law in a changing international system, 58 CambridgeLaw Journal (1999), p. 85.

9 CIEL, Protecting the public interest in international dispute settlement: the amicuscuriae phenomenon, 2009, p. 2 (‘Given that decisions rendered by internationalcourts and tribunals increasingly affect a myriad of public interest issues, there is aneed to ensure that those dispute resolution bodies do not view the cases beforethem in an artificially myopic manner, but that they adequately consider the contextand social implications of, and the interests affected by, the cases before them.’[References omitted].).

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ment places an unjustifiable burden on the parties. They fear that the ad-mission of amici curiae ruptures the delicate compromise represented ininternational treaties on what international courts and tribunals decide onand in which manner.10 Others fear a blurring of the primary function ofdispute settlement: the rendering of a workable and acceptable solution ofthe parties’ dispute. The issues amici curiae seek to table are often viewedas potentially further antagonizing the parties and impeding ‘the complexprocess of interest-accommodation that third party dispute settlement in-evitably entails.’11 Concerns are not limited to procedural matters: it is ar-gued that the WTO and investment treaties have been drafted technicallyto keep politics out of the proceedings and to ensure a smooth functioningof the global trade system. Allowing amici to participate in adjudicativeproceedings, many fear, might repoliticize disputes and, in the worst case,limit trade and foreign direct investments.12

In short, the issue of amicus curiae raises not only intricate proceduralquestions, but it engages the fundamental purpose of international disputesettlement in today’s globalizing world.13 The issue’s relevance is aug-mented in light of the ever-increasing importance of international disputesettlement, which is reflected in the growth in number of internationalcourts and tribunals and the cases brought before them.

Hence, it is not surprising that in the last fifteen years the instrumenthas become the subject of extensive academic interest. Research has fo-cused largely on analyses of amicus curiae before individual adjudicatingbodies, especially the WTO dispute settlement system and investor-statearbitration. To date, there is no comprehensive study of amicus curiae be-fore international courts and tribunals examining its role and accommoda-

10 For many, Oil Platforms (Islamic Republic of Iran v. United States of America),Judgment of 6 November 2003, Separate Opinion Judge Buergenthal, ICJ Rep.2003, p. 279, para. 22.

11 A. Bianchi, Introduction, in: A. Bianchi (Ed.), Non-state actors and internationallaw, Farnham 2009, p. xxii.

12 WTO General Council, Minutes of Meeting of 22 November 2000, WT/GC/M/60,Statement by Brazil, para. 46.

13 T. Treves, Introduction, in: T. Treves et al. (Eds.), Civil society, internationalcourts and compliance bodies, The Hague 2005, pp. 1-2 (‘[I]ncreased weakness ofthe dogma that the state is the only actor in international relations’). See also R.Mackenzie/C. Romano/Y. Shany/P. Sands, Manual on international courts and tri-bunals, 2nd Ed. Oxford 2010, p. xv.

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tion in international proceedings, its effectiveness and its effect on interna-tional dispute settlement.14 This contribution seeks to close this gap.

The aim of this study is twofold: first, to obtain a deeper understandingof amicus curiae before international courts and tribunals: its characteris-tics, its functions and how it is dealt with. The second aim is to examine ifthe concept, as currently used and regulated, is of added value to interna-tional dispute settlement.

Structure

The main decision concerning the structure of this study was whether toexamine amicus curiae before each international court and tribunal15 sepa-rately or to approach the different issues topically. The latter approach waschosen to allow for direct comparisons and keep the focus on the instru-ment and not on the particularities of a certain international court or tri-bunal, although they determine much of the role and development of ami-cus curiae in each court.

This book is structured in three parts. The first part, Chapters 2-4,sketch the international amicus curiae. Chapter 2 presents the above-indi-cated presumed functions and drawbacks of amicus curiae participation inorder to provide a backdrop against which to assess the instrumentthroughout this book. Chapter 3 examines the national law origins and thedevelopment of the instrument before international courts and tribunals toshow the variety of concepts held of amicus curiae in national legal sys-tems and to highlight the different settings and conditions under which

A.

14 Several studies of amicus curiae served as starting points for this study. Two arti-cles were of particular value: an article by Lance Bartholomeusz published in2005, which constitutes the most comprehensive study of the concept so far, and abook chapter authored by Christine Chinkin and Ruth Mackenzie. See L.Bartholomeusz, The amicus curiae before international courts and tribunals, 5Non-State Actors and International Law (2005), pp. 209-286; C. Chinkin/R.Mackenzie, International organizations as ‘friends of the court’ in: L. Boisson deChazournes et al. (Eds.), International organizations and international dispute set-tlement: trends and prospects, Ardsley 2002, pp. 295-311.

15 This is usually done, see L. Bartholomeusz, supra note 14; D. Hollis, Private ac-tors in public international law: amicus curiae and the case for the retention ofstate sovereignty, 25 Boston College International and Comparative Law Review(2002), pp. 235-255; A. Lindblom, Non-governmental organisations in interna-tional law, Cambridge 2005.

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amici curiae were first admitted. Chapter 4 distils the current characteris-tics and functions of amicus curiae before international courts and tri-bunals and delineates it from other forms of non-party involvement in in-ternational dispute settlement.

The second part of this book examines the laws and practices of amicuscuriae participation before international courts and tribunals. It forms theempirical and analytical foundation of the study. Chapter 5 explores the le-gal bases for amicus curiae participation and its admission to the proceed-ings. Chapter 6 examines the instrument in the proceedings, including themodalities of participation, the formal and substantive requirements at-tached to submissions and their content.

The third part of this book, Chapters 7-8, drawing from the examinationin the second part, addresses the second aim of the study: the added valueof amicus curiae participation. Chapter 7 explores the substantive effec-tiveness of the concept. It evaluates how and to what extent internationalcourts and tribunals have relied on submissions in their decision-making.Chapter 8 analyses the effect of amicus curiae on international dispute set-tlement as such. In particular, it considers whether the concept has ful-filled the positive and/or negative expectations surrounding it.

Methodology

This study pursues an analytical approach. Normative considerations onlyplay a role when analysing the sufficiency of current regulations. The fo-cal point of this study is the law de lege lata.

The research is based on the laws and cases of the included internation-al courts and tribunals, academic literature and select amicus curiae sub-missions. Unless indicated otherwise, the statutes, procedural rules andother international treaties referred to are those applicable as of 15November 2016.16 The corpus of case law of each court was researched

B.

16 United Nations, Statute of the International Court of Justice, entered into force 18April 1946 (hereinafter: ICJ Statute); International Court of Justice, Rules ofCourt, entered into force 1 July 1978 (last amendment entered into force 14 April2005) (hereinafter: ICJ Rules); International Court of Justice, Practice Directions,first adopted October 2001, and last amended on 21 March 2013 (hereinafter: ICJPractice Directions), all at: http://www.icj-cij.org/en/practice-directions (last visit-ed: 28.9.2017); United Nations Convention on the Law of the Sea of 10 December1982, entered into force 16 November 1994 (hereinafter: UNCLOS) at: http://www

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