Practical suggestions for amicus curiae briefs before WTO adjudicating bodies

Journal of International Economic Law

Volumn 4, Issue 1, 2001, Pages 155-187

  Marceau, Gabrielle ^b   Stilwell, Matthew ^a  

^a Legal Affairs Division of the WTO

^b NONE

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[No Author keywords available]

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EID: 0035589323     PISSN: 13693034     EISSN: None     Source Type: Journal    
DOI: 10.1093/jiel/4.1.155     Document Type: Article

References (115)

1. The Agreement on the Application of Sanitary and Phytosanitary Measures, the Agreement on Technical Barriers to Trade (and its Code of Good Practice), the Agreement on Trade-Related Aspects of Intellectual Property (which addresses private intellectual property rights), and other WTO agreements may have a significant impact on the interests of individuals and communities. On this issue see panel report on US - Sections 301-10 of the Trade Act of 1974, adopted on 27 January 2000, WT/DS152, (US - Section 301) para 7.73 to 7.90 (stating 'However, it would be entirely wrong to consider that the position of individuals is of no relevance to the GATT/WTO legal matrix. Many of the benefits to Members which are meant to flow as a result of the acceptance of various disciplines under the GATT/WTO depend on the activity of individual economic operators in the national and global market places.')
2. This practice of GATT/WTO dispute settlement mechanism 'à huis-clos' stems from a long tradition of both inter-state and commercial arbitration. Nowadays inter-state and commercial arbitration still takes place behind closed doors.
3. Amicus curiae is defined in the Black's Law Dictionary to mean 'literally, friend of the Court. A person with a strong interest in or views on the subject-matter of an action, but not a party to the action, may petition the Court for permission to file a brief . . . Such amicus curiae briefs are commonly filed in appeals concerning matters of broad public interest.' In this note, we use the term 'amicus brief' to include letters and other information submitted by non-parties to dispute settlement proceedings.
4. On the history of amicus briefs and their use before the US Supreme Court and other national and international tribunals, see Dinah Shelton, 'The Participation of Nongovernmental Organizations in International Judicial Proceedings', 88(4) Am J Int'l L (1994), 611; See also, Samuel Kislov, 'The Amicus Curiae Brief: From Friendship to Advocacy'; Ernest Angell, 'The Amicus Curiae: American Development of English Institutions' 16 Int'l & Comp LQ (1966), 1017; E. R. Beckwith and R. Sobernheim, 'Amicus Curiae - Minister of Justice', 17 Fordham L Rev (1948) 38, 40; Karen O'Connor and Lee Epstein, 'Amicus Curiae Participation in US Supreme Court Litigation: An Appraisal of Hakman's "Folklore"', 16(2) Law and Society Review (1981-82), 311; Martin A. Olz, 'Non-Governmental Organizations in Regional Human Rights Systems', 28 Colum Hum Rts L Rev 307 (1997). See also Ruth Wedgwood, 'Legal Personality and the Role of Non-Governmental Organizations' in Rainer Hofmann (ed), Non-State Actors as New Subjects of International Law (1999), at 26.
5. On the history of amicus briefs and their use before the US Supreme Court and other national and international tribunals, see Dinah Shelton, 'The Participation of Nongovernmental Organizations in International Judicial Proceedings', 88(4) Am J Int'l L (1994), 611; See also, Samuel Kislov, 'The Amicus Curiae Brief: From Friendship to Advocacy'; Ernest Angell, 'The Amicus Curiae: American Development of English Institutions' 16 Int'l & Comp LQ (1966), 1017; E. R. Beckwith and R. Sobernheim, 'Amicus Curiae - Minister of Justice', 17 Fordham L Rev (1948) 38, 40; Karen O'Connor and Lee Epstein, 'Amicus Curiae Participation in US Supreme Court Litigation: An Appraisal of Hakman's "Folklore"', 16(2) Law and Society Review (1981-82), 311; Martin A. Olz, 'Non-Governmental Organizations in Regional Human Rights Systems', 28 Colum Hum Rts L Rev 307 (1997). See also Ruth Wedgwood, 'Legal Personality and the Role of Non-Governmental Organizations' in Rainer Hofmann (ed), Non-State Actors as New Subjects of International Law (1999), at 26.
6. On the history of amicus briefs and their use before the US Supreme Court and other national and international tribunals, see Dinah Shelton, 'The Participation of Nongovernmental Organizations in International Judicial Proceedings', 88(4) Am J Int'l L (1994), 611; See also, Samuel Kislov, 'The Amicus Curiae Brief: From Friendship to Advocacy'; Ernest Angell, 'The Amicus Curiae: American Development of English Institutions' 16 Int'l & Comp LQ (1966), 1017; E. R. Beckwith and R. Sobernheim, 'Amicus Curiae - Minister of Justice', 17 Fordham L Rev (1948) 38, 40; Karen O'Connor and Lee Epstein, 'Amicus Curiae Participation in US Supreme Court Litigation: An Appraisal of Hakman's "Folklore"', 16(2) Law and Society Review (1981-82), 311; Martin A. Olz, 'Non-Governmental Organizations in Regional Human Rights Systems', 28 Colum Hum Rts L Rev 307 (1997). See also Ruth Wedgwood, 'Legal Personality and the Role of Non-Governmental Organizations' in Rainer Hofmann (ed), Non-State Actors as New Subjects of International Law (1999), at 26.
7. On the history of amicus briefs and their use before the US Supreme Court and other national and international tribunals, see Dinah Shelton, 'The Participation of Nongovernmental Organizations in International Judicial Proceedings', 88(4) Am J Int'l L (1994), 611; See also, Samuel Kislov, 'The Amicus Curiae Brief: From Friendship to Advocacy'; Ernest Angell, 'The Amicus Curiae: American Development of English Institutions' 16 Int'l & Comp LQ (1966), 1017; E. R. Beckwith and R. Sobernheim, 'Amicus Curiae - Minister of Justice', 17 Fordham L Rev (1948) 38, 40; Karen O'Connor and Lee Epstein, 'Amicus Curiae Participation in US Supreme Court Litigation: An Appraisal of Hakman's "Folklore"', 16(2) Law and Society Review (1981-82), 311; Martin A. Olz, 'Non-Governmental Organizations in Regional Human Rights Systems', 28 Colum Hum Rts L Rev 307 (1997). See also Ruth Wedgwood, 'Legal Personality and the Role of Non-Governmental Organizations' in Rainer Hofmann (ed), Non-State Actors as New Subjects of International Law (1999), at 26.
8. On the history of amicus briefs and their use before the US Supreme Court and other national and international tribunals, see Dinah Shelton, 'The Participation of Nongovernmental Organizations in International Judicial Proceedings', 88(4) Am J Int'l L (1994), 611; See also, Samuel Kislov, 'The Amicus Curiae Brief: From Friendship to Advocacy'; Ernest Angell, 'The Amicus Curiae: American Development of English Institutions' 16 Int'l & Comp LQ (1966), 1017; E. R. Beckwith and R. Sobernheim, 'Amicus Curiae - Minister of Justice', 17 Fordham L Rev (1948) 38, 40; Karen O'Connor and Lee Epstein, 'Amicus Curiae Participation in US Supreme Court Litigation: An Appraisal of Hakman's "Folklore"', 16(2) Law and Society Review (1981-82), 311; Martin A. Olz, 'Non-Governmental Organizations in Regional Human Rights Systems', 28 Colum Hum Rts L Rev 307 (1997). See also Ruth Wedgwood, 'Legal Personality and the Role of Non-Governmental Organizations' in Rainer Hofmann (ed), Non-State Actors as New Subjects of International Law (1999), at 26.
9. On the history of amicus briefs and their use before the US Supreme Court and other national and international tribunals, see Dinah Shelton, 'The Participation of Nongovernmental Organizations in International Judicial Proceedings', 88(4) Am J Int'l L (1994), 611; See also, Samuel Kislov, 'The Amicus Curiae Brief: From Friendship to Advocacy'; Ernest Angell, 'The Amicus Curiae: American Development of English Institutions' 16 Int'l & Comp LQ (1966), 1017; E. R. Beckwith and R. Sobernheim, 'Amicus Curiae - Minister of Justice', 17 Fordham L Rev (1948) 38, 40; Karen O'Connor and Lee Epstein, 'Amicus Curiae Participation in US Supreme Court Litigation: An Appraisal of Hakman's "Folklore"', 16(2) Law and Society Review (1981-82), 311; Martin A. Olz, 'Non-Governmental Organizations in Regional Human Rights Systems', 28 Colum Hum Rts L Rev 307 (1997). See also Ruth Wedgwood, 'Legal Personality and the Role of Non-Governmental Organizations' in Rainer Hofmann (ed), Non-State Actors as New Subjects of International Law (1999), at 26.
10. On the history of amicus briefs and their use before the US Supreme Court and other national and international tribunals, see Dinah Shelton, 'The Participation of Nongovernmental Organizations in International Judicial Proceedings', 88(4) Am J Int'l L (1994), 611; See also, Samuel Kislov, 'The Amicus Curiae Brief: From Friendship to Advocacy'; Ernest Angell, 'The Amicus Curiae: American Development of English Institutions' 16 Int'l & Comp LQ (1966), 1017; E. R. Beckwith and R. Sobernheim, 'Amicus Curiae - Minister of Justice', 17 Fordham L Rev (1948) 38, 40; Karen O'Connor and Lee Epstein, 'Amicus Curiae Participation in US Supreme Court Litigation: An Appraisal of Hakman's "Folklore"', 16(2) Law and Society Review (1981-82), 311; Martin A. Olz, 'Non-Governmental Organizations in Regional Human Rights Systems', 28 Colum Hum Rts L Rev 307 (1997). See also Ruth Wedgwood, 'Legal Personality and the Role of Non-Governmental Organizations' in Rainer Hofmann (ed), Non-State Actors as New Subjects of International Law (1999), at 26.
11. Under GATT practice, third-party's arguments were addressed only to the extent that they were formally adopted by one of the parties. See the Panel Report on Japan - Semi Conductors, BISD paras 4-5; US - Customs Users fee, BISD 355/245, para. 129.
12. Under GATT practice, third-party's arguments were addressed only to the extent that they were formally adopted by one of the parties. See the Panel Report on Japan - Semi Conductors, BISD paras 4-5; US - Customs Users fee, BISD 355/245, para. 129.
13. These include the new rule of 'automaticity' (where decisions are adopted unless rejected by consensus of all WTO Members), the de facto rule of precedent, the independence of the Appellate Body, and the direct participation of private lawyers to represent WTO Members in dispute settlement. (Private lawyers were admitted for the first time in a hearing before the Appellate Body in European Communities - Regime for the Importation, Sale and Distribution of Bananas, adopted 25 September 1997, WT/DS27/AB/R ('EC - Bananas III'), paras 5 to 12 and before a panel in Indonesia - Certain Measures Affecting the Automobile Industry, adopted on 23 July 1998, WT/Ds 54,55,59, 64/R, para 14.6.)
14. These include the new rule of 'automaticity' (where decisions are adopted unless rejected by consensus of all WTO Members), the de facto rule of precedent, the independence of the Appellate Body, and the direct participation of private lawyers to represent WTO Members in dispute settlement. (Private lawyers were admitted for the first time in a hearing before the Appellate Body in European Communities - Regime for the Importation, Sale and Distribution of Bananas, adopted 25 September 1997, WT/DS27/AB/R ('EC - Bananas III'), paras 5 to 12 and before a panel in Indonesia - Certain Measures Affecting the Automobile Industry, adopted on 23 July 1998, WT/Ds 54,55,59, 64/R, para 14.6.)
15. Including those raised by the Panel itself.
16. See the Appellate Body reports on EC - Bananas III, para 141-43 and on EC - Measures Concerning Meat and Meat Products (Hormones), adopted 13 February 1998, WT/DS26,48/AB/R, ('EC-Hormones'), para 155. Here a distinction should be made between factual and legal arguments. In Japan - Measures Affecting Agricultural Products, adopted on 19 March 1999, WT/DS76/AB/R, (Japan - Varietals) the Appellate Body made clear that the evidence obtained by the Panel from the experts could not alter the rules on burden of proof: 'A panel is entitled to seek information and advice from experts and from any other relevant source it chooses, pursuant to Article 13 of the DSU . . . to help it to understand and evaluate the evidence submitted and the arguments made by the parties, but not to make the case for a complaining party', para 129.
17. See the Appellate Body reports on EC - Bananas III, para 141-43 and on EC - Measures Concerning Meat and Meat Products (Hormones), adopted 13 February 1998, WT/DS26,48/AB/R, ('EC-Hormones'), para 155. Here a distinction should be made between factual and legal arguments. In Japan - Measures Affecting Agricultural Products, adopted on 19 March 1999, WT/DS76/AB/R, (Japan - Varietals) the Appellate Body made clear that the evidence obtained by the Panel from the experts could not alter the rules on burden of proof: 'A panel is entitled to seek information and advice from experts and from any other relevant source it chooses, pursuant to Article 13 of the DSU . . . to help it to understand and evaluate the evidence submitted and the arguments made by the parties, but not to make the case for a complaining party', para 129.
18. See the Appellate Body reports on EC - Bananas III, para 141-43 and on EC - Measures Concerning Meat and Meat Products (Hormones), adopted 13 February 1998, WT/DS26,48/AB/R, ('EC-Hormones'), para 155. Here a distinction should be made between factual and legal arguments. In Japan - Measures Affecting Agricultural Products, adopted on 19 March 1999, WT/DS76/AB/R, (Japan - Varietals) the Appellate Body made clear that the evidence obtained by the Panel from the experts could not alter the rules on burden of proof: 'A panel is entitled to seek information and advice from experts and from any other relevant source it chooses, pursuant to Article 13 of the DSU . . . to help it to understand and evaluate the evidence submitted and the arguments made by the parties, but not to make the case for a complaining party', para 129.
19. One amicus brief was submitted jointly by the Center for International Environmental Law, Center for Marine Conservation, The Environmental Foundation Ltd, The Philippine Ecological Network, and Red Nacional de Accion Ecologia, the second by World Wide Fund for Nature, International, and the Foundation for International Environmental Law and Development.
20. Article 13 of the DSU provides: '1. Each panel shall have the right to seek information and technical advice from any individual or body which it deems appropriate. However, before a panel seeks such information or advice from any individual or body within the jurisdiction of a Member it shall inform the authorities of that Member. A Member should respond promptly and fully to any request by a panel for such information as the panel considers necessary and appropriate. Confidential information which is provided shall not be revealed without formal authorization from the individual, body, or authorities of the Member providing the information. 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 a 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. Rules for the establishment of such a group and its procedures are set forth in Appendix 4.'
21. Argentina - Measures Affecting Imports of Footwear, Textiles, Apparels and other Items, adopted on 22 April 1998, WT/DS56/AB/R (Argentina - Textiles), paras 84 to 86. The Appellate Body characterized Article 13 as 'a grant of discretionary authority' and referred to the 'sound discretion' of the panel to determine what is necessary or appropriate within the bounds of its discretionary authority under Article 11 and 13 of the DSU. See also, Appellate Body Report on EC - Hormones, at para 103.
22. Argentina - Measures Affecting Imports of Footwear, Textiles, Apparels and other Items, adopted on 22 April 1998, WT/DS56/AB/R (Argentina - Textiles), paras 84 to 86. The Appellate Body characterized Article 13 as 'a grant of discretionary authority' and referred to the 'sound discretion' of the panel to determine what is necessary or appropriate within the bounds of its discretionary authority under Article 11 and 13 of the DSU. See also, Appellate Body Report on EC - Hormones, at para 103.
23. Panel Report on United States - Import Prohibition Certain Shrimp and Shrimp Products, adopted as amended by the Appellate Body Report on 6 November 1998, WT/DS58/R (US - Shrimp), at para 7.8.
24. Appellate Body Report on US - Shrimp, para 108-10.
25. Appellate Body Report on US - Shrimp, para 104.
26. This is current as at the date of writing of this paper.
27. Panel Report on United States - Imposition of Countervailing Duties on Certain Hot-Rolled Lead and Bismuth Carbon Steel . . . (US - British Steel), WT/DS138/R, para 6.3: 'The AISI brief was submitted after the deadline for the parties' rebuttal submissions, and after the second substantive meeting of the Panel with the parties. Thus, the parties have not, as a practical matter, had adequate opportunity to present their comments on the AISI brief to the Panel'. As further discussed in the next section, this case was appealed and the issue of amicus curiae briefs was addressed.
28. Implementation Panel of Australia - Measures Affecting Importation of Salmon, adopted on 17 April 2000, WT/DS18/RW (Implementation Panel of Australia - Salmon), at para 7.8, citing the Appellate Body Report on US - Shrimp, at para 108. Note that since this was an Article 21.5 Implementation Panel, there was only one meeting, but two exchanges of submissions. The letter from the fishermen was sent before the rebuttal submissions.
29. Implementation Panel of Australia - Measures Affecting Importation of Salmon, adopted on 17 April 2000, WT/DS18/RW (Implementation Panel of Australia - Salmon), at para 7.8, citing the Appellate Body Report on US - Shrimp, at para 108. Note that since this was an Article 21.5 Implementation Panel, there was only one meeting, but two exchanges of submissions. The letter from the fishermen was sent before the rebuttal submissions.
30. Id.
31. Id.
32. Id at para 7.9.
33. Panel Report on United States - Section 110(5) of the Copyright Act, WT/DS/160, adopted 27 July 2000, at para 6.8.
34. Panel Report on European Communities - Antidumping Duties on Imports of Cotton-type Bed Linen from India (EC - Bed Linen), para 6.1 and fn 10.
35. Panel Report on European Communities - Measures Affecting Asbestos and Asbestos - Containing Products, WT/DS135/R, (EC - Asbestos), at para 6.2.
36. Appellate Body Report on US - Shrimp, para 83.
37. Id, para 91.
38. Id, para 89.
39. Appellate Body Report on US - British Steel, at para 42.
40. Some WTO Members have argued that the acceptance of amicus briefs diminishes the rights of WTO Members, because amici, but not third-party Members, may participate in Appellate proceedings without first participating at the panel level. It is relevant to note, however, that the DSU provides only Members with an explicit right to participate in WTO proceedings, whereas the opportunity to participate as amid is subject to the discretion of the adjudicating body. If anything, amicus briefs may conceivably add to the rights of Members, as they could also submit such briefs. It could also be argued that the capacity to accept amicus briefs is inherent in the WTO system (including Article 13) and there is consequently no change to Member's rights and obligations. See Minutes of the DSB of 14 December 1998 (WT/DSB/M/50) of 7 June 2000 (WT/DSB/M/83), of 19 June 2000 (WT/DSB/M/84), and document WT/DSB/W/137.
41. Articles 34 to 64 of the ICJ Statute.
42. Article 34 of the ICJ Statute.
43. Article 62 and Rules 81 to 85.
44. Article 63 and Rule 86.
45. Article 69.4 of the Rules of the Court on advisory opinions provides that 'the term public international organizations denotes an organization of States'. This clearly excludes NGOs.
46. Article 69.2 of the Rules of the Court provides details on how and when such unsolicited information can be furnished to the Court by public international organizations.
47. Articles 65 to 68 of the ICJ Statute.
48. Article 66.4 adds that 'States and organizations having presented written or oral statements or both shall be permitted to comment on the statements 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.'
49. Roger Clark in his book The Case Against the Bomb points out at page 5 that a substantial number of NGOs were interested in the Nuclear Weapons cases, especially 'The World Court Project' - a coalition of three NGOs - and that along with other groups and individuals they contributed to 'public discussions'. They did not however submit anything to the Court: Clark points out: 'Under ICJ Statute art 66(2), the Court, in advisory proceedings, may receive written and oral statements from NGOs (ibid at 27, n 69). This, however, seems contrary to the views of most other scholars, and to the general practice of the Court. See also Dinah Shelton's article, above n 4, at 619. See also Laurence Boisson de Chazournes and Philippe Sands (eds), International Law, The International Court of Justice and Nuclear Weapons (Cambridge, UK: Cambridge University Press 1999), at 9.
50. Roger Clark in his book The Case Against the Bomb points out at page 5 that a substantial number of NGOs were interested in the Nuclear Weapons cases, especially 'The World Court Project' - a coalition of three NGOs - and that along with other groups and individuals they contributed to 'public discussions'. They did not however submit anything to the Court: Clark points out: 'Under ICJ Statute art 66(2), the Court, in advisory proceedings, may receive written and oral statements from NGOs (ibid at 27, n 69). This, however, seems contrary to the views of most other scholars, and to the general practice of the Court. See also Dinah Shelton's article, above n 4, at 619. See also Laurence Boisson de Chazournes and Philippe Sands (eds), International Law, The International Court of Justice and Nuclear Weapons (Cambridge, UK: Cambridge University Press 1999), at 9.
51. Roger Clark in his book The Case Against the Bomb points out at page 5 that a substantial number of NGOs were interested in the Nuclear Weapons cases, especially 'The World Court Project' - a coalition of three NGOs - and that along with other groups and individuals they contributed to 'public discussions'. They did not however submit anything to the Court: Clark points out: 'Under ICJ Statute art 66(2), the Court, in advisory proceedings, may receive written and oral statements from NGOs (ibid at 27, n 69). This, however, seems contrary to the views of most other scholars, and to the general practice of the Court. See also Dinah Shelton's article, above n 4, at 619. See also Laurence Boisson de Chazournes and Philippe Sands (eds), International Law, The International Court of Justice and Nuclear Weapons (Cambridge, UK: Cambridge University Press 1999), at 9.
52. See Rosalyn Higgins, 'Remedies and the International Court of Justice: An Introduction' in Malcom Evans (ed), Remedies in International Law (Oxford: Hart 1998), at 1: 'There is no realistic prospect, for all the reasons already indicated and more of them [NGOs] being litigants. But it is not impossible that the Court might in the future be able to receive briefs amicus curiae from NGOs or from other knowledgeable persons. . . . Under the [ICJ] Statute as it stands, NGOs may not directly participate in advisory opinions, any more than in litigation. [In the Nuclear Weapons cases] the Court took an early decision that it would not make the myriad of briefs and memoranda it was receiving from NGOs on the subject of nuclear weapons part of the docket. At the same time they were not simply thrown out. They were placed in the library, and every judge knew week to week what was coming in, and it was up to each judge to decide if he wished to go beyond the already voluminous official pleadings and to read the other material', (emphasis added)
53. Dinah Shelton, above n 4, at 623.
54. International Status of South-West Africa, ICJ Rep [1950], at 130.
55. Dinah Shelton, above n 4 at 623, referring to the Letter from the Registrar, 1950 ICJ Pleadings (2 Asylum) 227 (7 March 1950). The Registrar noted the difference in the wording between 'international organization' for advisory opinions (Article 66) and 'public international organizations' for contentious cases (Article 34).
56. Advisory Opinion on the 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 on 21 June 1971 taken from Dinah Shelton, above n 4, at 624.
57. Taken from Dinah Shelton, above n 4 at 624, referring to the letter of the Registrar to Dr Barry Levy (28/3/94) in the Advisory Opinion on the Legality of the Use by a State of Nuclear Weapons in Armed Conflicts case.
58. Advisory Opinion on the Legality of the Use by a State of Nuclear Weapons in Armed Conflicts case, ICJ Rep [1996] at 92, para 9.
59. Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, ICJ Rep [1996] 308-12. It is also reported that some States' pleadings were in fact written and strongly influenced by NGOs. On this issue the President Guillaume, in his separate opinion, wrote: '. . . La Cour aurait pu songer dans ces conditions à ne pas donner suite à la demande d'avis dont elle était saisie. Cette solution aurait trouvé quelque justification dans les circonstances mêmes de la saisine. En effet, l'avis sollicité par l' Assemblée générale des Nations Unies (comme d'ailleurs celui demandé par l' Assemblée mondiale de la Santé) a trouvé son origine dans l'action menée par une Association dénommée 'International Association of lawyers against nuclear arms' (IALANA) qui, de concert avec divers autres groupements, a lancé en 1992 un projet intitulé 'World Court Project' afin de faire proclamer par la Cour l'illicéité de la menace ou de l'emploi des armes nucléaires. Ces associations ont fait preuve d'une intense activité en vue de faire voter les résolutions saisissant la Cour et de provoquer l'intervention devant cette dernière d'Etats hostiles aux armes nucléaires. Bien plus, la Cour et les juges ont reçu des milliers de lettres inspirées par ces groupements et faisant appel tant à leur conscience qu'à la conscience publique. Je suis certain que les pressions ainsi exercées ont été sans influence sur les délibérations de la Cour, mais je me suis interrogé sur la question de savoir si, dans ces conditions, on pouvait encore regarder les demandes d'avis comme émanant des Assemblées qui les avaient adoptées, ou si, appliquant la théorie de l'apparence, la Cour ne devait pas les écarter comme irrecevables. J'ose cependant espérer que les gouvernements et les institutions intergouvernementales conservent encore une autonomie de décision suffisante par rapport aux puissants groupes de pression qui les investissent aujourd'hui avec le concours des moyens de communication de masse. Je constate en outre qu'aucun des Etats qui s'est présenté devant la Cour n'a soulevé une telle exception. Dans ces conditions, je n'ai pas cru devoir la retenir d'office.'
60. These provisions are similar to those in Articles 62 and 63 of the ICJ Statute.
61. 49 For instance, leave to appear as amicus was given in favour of an individual in the Tihomir Blaskic case. Similarly, numerous submissions by amid were received in the Blaskic case regarding the power of the Tribunal to issue subpoenas and binding orders. Submissions by amici in the Akayesu case played a role in determining whether charges of sexual assault should be addressed. See Kelly D. Askin, 'Sexual Violence in Decisions and Indictments of the Yugoslav and Rwandan Tribunals: Current Status', 93 Am J Int'l L (1999), 97, 106 n 45.
62. Article 53.1 of the Rome Statute of the International Criminal Court.
63. It is relevant to note that any person that is a party or intervener in the national proceedings that led to the ECJ's proceedings is recognized as a party with full rights of participation in the ECJ's proceedings.
64. Since 1994, the Court of First Instance has had jurisdiction to hear all such cases, with an appeal lying to the ECJ on points of law. Both courts apply the same rules on intervention. In an appeal from a judgment of the Court of First Instance, and subject to compliance with Article 37, both government and private intervention are permitted before the ECJ, even if the intervener played no part in the proceedings before the Court of First Instance.
65. Thus, the Belgian League for Human Rights was not entitled to intervene in a case, which did not have as its object the protection of an individual's legal rights. See Order dated 13 February 1990 in X v Commission [1992] ECR II - 2195 (T-121/89).
66. Rule 93 of the Rules of Procedure of the ECJ. See R. Plender, European Courts - Practice and Precedent (London: Sweet and Maxwell 1997), 613-44; Dinah Shelton, n 4 at 629.
67. Rule 93 of the Rules of Procedure of the ECJ. See R. Plender, European Courts - Practice and Precedent (London: Sweet and Maxwell 1997), 613-44; Dinah Shelton, n 4 at 629.
68. Note that the ECJ refers to the submission of the intervener as an amicus brief. However when allowed to participate the intervener is given full standing.
69. See Abdelsalam A. Mohamed, 'Individual and NGO Participation in Human Rights Litigation before the African Court of Human and Peoples' Rights: Lessons from the European and Inter-American Courts of Human Rights', 8 MSU-DCL J Int'l L 377 (1999).
70. Article 56 states: 'Communications relating to human and peoples' rights referred to in Article 55 received by the Commission, shall be considered if they: 1. Indicate their authors even if the latter request anonymity, 2. Are compatible with the Charter of the Organization of African Unity or with the present Charter, 3. Are not written in disparaging or insulting language directed against the State concerned and its institutions or to the Organization of African Unity, 4. Are not based exclusively on news disseminated through the mass media, 5. Are sent after exhausting local remedies, if any, unless it is obvious that this procedure is unduly prolonged, 6. Are submitted within a reasonable period from the time local remedies are exhausted or from the date the Commission is seized of the matter, and 7. Do not deal with cases which have been settled by these States involved in accordance with the principles of the Charter of the United Nations.'
71. Dinah Shelton, above n 4, at 638.
72. Mohamed, above n 56, at 390.
73. Article 34 of the Convention as amended by Protocol No 11.
74. Article 1(1), Protocol on Dispute Settlement Mechanism.
75. At the time of writing, an arbitral panel in the Methanex case under NAFTA Chapter 11 case (designed to protect foreign investors from expropriation and other unfair treatment) was convened. The tribunal considered an NGO's request to submit an amicus brief, and has requested parties to submit written arguments on whether public interest groups can make representations in the otherwise private proceedings between foreign companies and governments.
76. We note that Article 35 of the North American Agreement on Labor Cooperation contains an identical provision. We also note that NAFTA contains other sector specific dispute settlement procedure that are not of interest in this article.
77. Art. 29.3 of the Brasilia Protocol reads as follows: 'Within this time-limit, the group of experts will give the affected party and the State against which a complaint has been filed the opportunity to be heard and to present their arguments.'
78. See M. Haines-Ferrari, 'MERCOSUR: Individual Access and the Dispute Settlement Mechanism' in J. Cameron and K. Campbell (eds), Dispute Resolution in the World Trade Organisation, 270-84 (London: Cameron May 1998), and M. Haines-Ferrari (ed), The Mercosur Code (London: The British Institute 2000).
79. See M. Haines-Ferrari, 'MERCOSUR: Individual Access and the Dispute Settlement Mechanism' in J. Cameron and K. Campbell (eds), Dispute Resolution in the World Trade Organisation, 270-84 (London: Cameron May 1998), and M. Haines-Ferrari (ed), The Mercosur Code (London: The British Institute 2000).
80. Many national courts and tribunals also permit non-solicited amicus briefs to be received, either with the consent of the parties, or with the permission of the Court. The United States' Supreme Court permits individuals and organizations to file amicus briefs with the consent of all the parties, or to submit a motion for leave to file an amicus brief (Rule 37 US Supreme Court). In New Zealand, High Court Rule 81 gives the court discretion to call for amicus in cases where the interests of a class of person or the public interest would not otherwise be represented by the parties in the case. In Australia leave to appear as amici may be granted to interest groups to raise some issues that have not been raised by the parties or have not been sufficiently canvassed for various reasons (See, Lange v ABC (S108/116)). In Canada, Article 18 of the Rules of the Supreme Court provides that 'Any person interested in an appeal or reference may, by motion . . . apply to a judge for leave to intervene upon such terms and conditions as the judge may determine'. Finally, the Supreme Court of India 'may, if for any special reason it thinks desirable to do so, permit any other person to appear before it in a particular case' (Rules of the Supreme Court, Order IV para 1).
81. Article 28 of the ICSID Statute under the Conciliation section gives a right of action to any national of a Contracting State. Article 36 gives a similar right for Arbitration proceedings.
82. Paragraph 12 of the Resolution Establishing the Inspection Panel provides that requests may be brought by any group of persons who share common concerns or interests in the country where the project is located and can demonstrate that 'its rights or interests have been or are likely to be directly affected by an action or omission of the Bank. Other forms of public participation can take place during an investigation. Representatives of the public-at-large may provide the panel with information if they believe that it is relevant to a request. See R. E. Bissel, 'Recent Practice of the Inspection Panel of the World Bank', 91 Am J Int'l L 741, at 743 (1997). See also The World Bank, International Financial Institutions, and the Development of International Law, Brown Weiss, Rigo Sureda, and Boisson de Chazournes (eds), ASIL Studies in Transnational Legal Policy no 31.
83. Paragraph 12 of the Resolution Establishing the Inspection Panel provides that requests may be brought by any group of persons who share common concerns or interests in the country where the project is located and can demonstrate that 'its rights or interests have been or are likely to be directly affected by an action or omission of the Bank. Other forms of public participation can take place during an investigation. Representatives of the public-at-large may provide the panel with information if they believe that it is relevant to a request. See R. E. Bissel, 'Recent Practice of the Inspection Panel of the World Bank', 91 Am J Int'l L 741, at 743 (1997). See also The World Bank, International Financial Institutions, and the Development of International Law, Brown Weiss, Rigo Sureda, and Boisson de Chazournes (eds), ASIL Studies in Transnational Legal Policy no 31.
84. ECOSOC - Article 71, Resolution 1296.
85. See, Martin Olz, 'Non-Governmental Organizations in Regional Human Rights Systems', 28 Colum Hum Rts L Rev 307 (1997) outlining various definitions of NGOs in international fora. In addition to the definition in ECOSOC, he notes: (1) the proposed definition in the Encyclopedia of Public International Law. This follows ECOSOC, except that the requirements for international scope and shared goals with ECOSOC are made less stringent. The result is that transnational corporations would pass muster under the proposed definition, whereas they do not under ECOSOC Resolution 1996/31; and (2) the European Convention on the Recognition of the Legal Personality of International Non-Governmental Organizations. This convention contains four explicit criteria for NGOs: (a) have a non-profit-making aim of international utility; (b) have been established by an instrument government by the internal law of a Party; (c) carry on their activities with effect in at least two States; and (d) have their statutory office in the territory of a Party and the central management and control in the territory of that party or of another Party.
86. Martha Haines-Ferrari 'Mercosur: Individual Access and the Dispute Settlement Mechanism' in J. Cameron and K. Campbell (eds), Dispute Resolution in the World Trade Organisation (London: Cameron May 1998) 270.
87. Possibly under the general administration power of the DSB pursuant to Article 2.4 of the DSU.
88. Keeping in mind the statement of the Appellate Body in Japan - Varietals (above, n 8) that the evidence obtained through Article 13 of the DSU cannot alter the rules on burden of proof and cannot be used by the panel 'to make the case for a complaining party'.
89. Dinah Shelton, above, n 4 at 617. On the compétence de la compétence see G. Abi-Saab, ' "Interprétation" et "Auto-Interprétation". Quelques réflexions sur leur rôle dans la formation et la résolution du différend international' in Beyerlin et al. (eds), Recht zwischen Umbruch und Bewahrung, Festschrift für Rudolf Bernhardt (Berlin, 1995) 10.
90. Note that Article 38. 1 (d) the Statute of the International Court of Justice recognizes that the doctrine can be a subsidiary source where evidence of rules of international law can be found. Amicus briefs do not constitute the doctrine, and panels do not apply international law generally but the point is that panels and the Appellate Body are obliged pursuant to Article 11 of the DSU to apply WTO law objectively and in this context may find it useful to read opinions or authors in journals, books, dictionaries, and amicus briefs.
91. See, for example, the Appellate Body Reports on EC - Bananas III, para 144; India - Patent Protection for Pharmaceutical and Agricultural Chemical Products, adopted 16 January 1998, WT/DS50/AB/R, para 95, and Argentina - Textiles, para 79.
92. See, for example, the Appellate Body Reports on EC - Bananas III, para 144; India - Patent Protection for Pharmaceutical and Agricultural Chemical Products, adopted 16 January 1998, WT/DS50/AB/R, para 95, and Argentina - Textiles, para 79.
93. See, for example, the Appellate Body Reports on EC - Bananas III, para 144; India - Patent Protection for Pharmaceutical and Agricultural Chemical Products, adopted 16 January 1998, WT/DS50/AB/R, para 95, and Argentina - Textiles, para 79.
94. WT/AB/WP/1 dated 15 February 1996.
95. Article 16(1) states: 'In the interests of fairness and orderly procedure in the conduct of an appeal, where a procedural question arises that is not covered by these Rules, a division may adopt an appropriate procedure for the purposes of that appeal only, provided that it is not inconsistent with the DSU, the other covered agreements and these Rules. Where such a procedure is adopted, the Division shall immediately notify the participants and third participants in the appeal as well as the other Members of the Appellate Body.' Many WTO Members have argued that acceptance of amicus briefs raises substantive issues, and is thus not within the scope of the Appellate Body's right to develop working procedures. The Appellate Body, in US - British Steel, stated that 'as long as we act consistently with the provisions of the DSU and of the covered agreements, we have legal authority to decide whether or not to accept and consider any information that we believe is pertinent and useful in an appeal.' (para 39) This issue is likely to continue to be the subject of discussion in future DSB meetings.
96. We recall the wide discretion of panels in the application of Article 13 of the DSU.
97. See also Appendix 3, para 4 of the DSU, entitled Working Procedures (stating 'Before the first substantive meeting of the panel with the parties, the parties to the dispute shall transmit to the panel written submissions in which they present the facts of the case and their arguments').
98. See text at fn 27.
99. Rio Declaration on Environment and Development, 14 June 1992, UN Doc A/CONF.151/5/Rev 1 (1992), reprinted in 31 ILM 874 (1992) (Rio Declaration); and Agenda 21, UN Conference on Environment and Development (UNCED), Annex II, UN Doc A/CONF 151/26/Rev 1 (1992). The Rio Declaration and Agenda 21 recognize the importance of public participation in decision-making, 13 June 1992 (31 ILM 874). See generally, Agenda 21, Chapter 23 (stating 'One of the fundamental prerequisites for the achievement of sustainable development is broad public participation in decision-making. Furthermore, in the more specific context of environment and development, the need for new forms of participation has emerged). See also Ch 27 (stating 'Society, governments and international bodies should develop mechanisms to allow non-governmental organizations to play their partnership role responsibly and effectively in the process of environmentally sound and sustainable development.')
100. As noted in the definition of amicus curiae in fn 1, amicus briefs are often permitted in cases involving questions of the public interest.
101. India, commenting on the Appellate Body's decision in US - British Steel, argued that the Appellate Body's interpretation '. . . was resulting in a situation in which not only non-governmental voluntary organizations, but also powerful business associations, like in this dispute, would be able to intervene in the dispute settlement process. This was not a good development for the long-term functioning of the dispute settlement system . . .' Minutes of Dispute Settlement Body, 7 June 2000, (WT/DSB/ M/83). Some have also noted that opening participation as amici to firms seems more likely to open the floodgates to numerous submissions that may often closely parallel those of the parties, and so add to the burden of panels, without adding significantly to the quality of their decisions.
102. Implementation Panel (Article 21.5 DSU) of Australia - Salmon, para 7.9.
103. US - Section 110(5) of the Copyright Act, para 6.8.
104. See, for example, Diane P. Wood, A US Perspective on Ducks (World Trade Forum 2000): the Role of Judges, at 5 (stating 'the extra reading would be worth it if the amicus brief added a new perspective or revealed longer term implications of possible outcomes that the parties somehow did not bring to the courts attention').
105. For example, in the US - Section 110(5) of the Copyright Act, the Panel addressed information submitted for the American Society of Composers, Authors, and Publishers, while the US law at issue appeared to protect the interests of another interest group (the bars and restaurant that were using the work of such composers and authors).
106. See, Argentina - Textiles, paras 80 and 81, noting that panels have inherent discretion to accept any type of evidence at any time, so long as the panel does not commit an abuse of discretion amounting to a failure to render an objective assessment of the matter as mandated by Article 11 of the DSU. As noted above, in US - Shrimp the amicus briefs were received between the first and second meeting. In this case, the panel gave the parties two additional weeks to consider the materials (which were attached to the US submission). Panel Report on US - Shrimp, at para 7.7.
107. See, Argentina - Textiles, paras 80 and 81, noting that panels have inherent discretion to accept any type of evidence at any time, so long as the panel does not commit an abuse of discretion amounting to a failure to render an objective assessment of the matter as mandated by Article 11 of the DSU. As noted above, in US - Shrimp the amicus briefs were received between the first and second meeting. In this case, the panel gave the parties two additional weeks to consider the materials (which were attached to the US submission). Panel Report on US - Shrimp, at para 7.7.
108. See fn 14.
109. See fn 20, at para 6.8.
110. Appellate Body Report on US - Shrimp, para 104.
111. We note that, where a brief is clearly irrelevant or received too late in the process, the panel may choose to reject the brief outright without first asking the parties to comment, in which case the panel would merely inform the parties of its decision and provide them with a copy of the brief.
112. There are also other courses of action. Rather than accepting the amicus brief as a whole, the panel may decide to accept it in part or on conditions, or may decide to use questions at a later stage in the proceedings to guide input from amici on specific issues.
113. In some circumstances and in light of time constraints, the first and second (if any) ruling could take place at the same time.
114. As with all panel decisions, the acceptance by panels of solicited or non-solicited amicus briefs will have to be made on an objective assessment of the facts and the law, pursuant to Article 11 of the DSU, and as such will constitute revisable decisions by the Appellate Body.
115. As noted in Article 17.6 of the DSU, appeals shall be limited to issues of law covered in the panel report and to legal interpretations developed by the panel.