NGOs and the "Public Interest": The Legality and Rationale of Amicus Curiae Interventions in International Economic and Investment Disputes
De Brabandere, Eric, Chicago Journal of International Law
Recent decades have seen a significant increase in the number of legal dispute settlement mechanisms, which has opened the door for NGO participation as "friends of the court." Confronted with unsolicited submissions by NGOs, the WTO dispute settlement organs and international investment tribunals have accepted the legality of such submissions. However, despite various decisions on the principled legality of amicus curiae submissions by NGOs, the effective acceptance or consideration of such submissions in particular cases remains limited. This Article aims to systematize the involvement of NGOs in international economic and investment disputes. This Article extracts the general principles for NGO participation in such disputes, both from the perspective of the legality of third-party interventions and from the perspective of the rationale, utility, and usefulness of such interventions in the dispute settlement processes, elements often linked to the "public interest" or 'public character" of a dispute.
Table of Contents
I. Introduction ............................................................................................................... 86
IL NGOs Ui International Dispute Setdement ........................................................ 88
LTI. NGOs at die International Court of Justice ...................................................... 91
IV. NGO Participation Ui Economic and Investment Disputes ........................... 94
A. The LegaUty of NGO Participation as Amicus Curiae ................................. 95
1. NGOs in the WTO Dispute Setdement System ........................................ 95
2. NGOs Ui Uitemational investor-state arbitration ....................................... 98
B. The Rationale and Appropriateness of NGO Participation ....................... 102
1. NGOs as representatives of the "pubUc interest" in international economic and investment proceedings .......................................................... 103
2. UtUity of the brief in assisting the tribunal ................................................ 106
C. The UtUity and Effectiveness of NGO Participation in International
Economic and Investment Disputes: A Matter of Principle? ......................... 109
V. Conclusion ................................................................................................. i ............ 112
Although international law is a legal system that is principaUy and essentiaUy engaged with the relation of states with other states, the involvement of non-state actors as participants either formaUy or UiformaUy in" international law has increased substantiaUy over the past years. Whether or not this participation needs to be equated with or, on the contrary is a consequence of the international legal subjectivity of non-state actors, is subject to debate in international legal scholarship.1 However, despite the theoretical discussions on the status of non-state actors Ui international law, the informal participation of non-state actors Ui Uitemational law and Uitemational relations is a reaUty that cannot be ignored.
This Article wUl focus on the role played by non-governmental organizations (NGOs) Ui legal dispute setdement mechanisms in Uitemational economic and investment law. Recent decades have seen a significant Ulerease Ui the number of legal dispute setdement mechanisms charged with settling disputes based on international law. An often overlooked aspect of this evolution is diat die proUferation of dispute settlement mechanisms has equaUy witnessed die increased involvement of non-state actors as non-disputing parties Ui dispute setdement procedures. NGOs especiaUy have benefited from the proUferation of legal dispute setdement mechanisms to gain access to these forums, often as "friends of die court" (amici curiae). The advantage of participation as amici curiae is that the intervening party is not actuaUy a party to the dispute but is nevertheless aUowed to submit a written statement during the proceedings and, less commonly, is aUowed to be heard by the court or tribunal.2 Such participation has been visible, Ui particular, Ui kiternational economic disputes and in kiternational investment arbitration, although this tendency has also been observed in other courts, such as thé International Court of Justice (ICJ).
Confronted with unsoUcited submissions by NGOs, the World Trade Organization (WTO) dispute setdement organs and kiternational investment tribunals have been forced to develop case law on the access of NGOs to these international proceedings, both in terms of the legaUty of such submissions and in terms of the appropriateness of a submission in a particular case. Despite various decisions on the principled legaUty of amicus curiae submissions by NGOs and other non-disputing parties, there has not yet been substantial effective acceptance or consideration of such submissions in particular cases.
This Article aims to systematize the involvement of NGOs in intemational economic and investment disputes by extracting the general principles for NGO participation in such disputes, both from the perspective of the legaUty of dikdparty interventions and from the perspective of the rationale, utility, and usefulness of such interventions in the dispute setdement processes. These elements are often linked to the "pubüc interest" or "pubUc character" of a dispute. The aim is thus not to describe generaUy the conditions under which NGOs may participate in international proceedings. Rather, this Article adopts a transversal perspective focusing on both international economic and investment law to disentangle the issues underlying this development, which are demonstrably sirnUar, if not identical, in bodi kiternational economic law and kiternational investment law - fundamentaUy different types of law that share many common features.
The first section wUl briefly depict the position of non-governmental organizations in intemational dispute setdement and in kiternational law generaUy. The second section wUl address the role of NGOs before the ICJ. The thkd section wUl tackle the case law and rules with respect to NGO participation withki legal dispute setdement in kiternational economic and investment law. The third section wUl first address the legality of this participation before turning to the rationale and appropriateness of the role played by NGOs as "friends of the court" in economic and investment dispute setdement proceedings. The final section then concludes with an assessment of the effect of NGO submissions on kiternational proceedings in kiternational economic and investment law.
IL NGOS IN INTERNATIONAL DISPUTE SETTLEMENT
The notion of the "non-state actor" has become a core concept in kiternational law, but, as righdy pointed out by several authors before,3 it is not a very useful description because it is a negative one. As a consequence, an exact definition is stiU not entirely agreed upon, and the inclusion of international organizations and sub-state entities,4 or criminal organizations and reügious communities5 in this category is not fuUy accepted. Nonetiieless, despite suggesting only what it is not, the notion of non-state actors indicates where in the traditional international legal order these organizations are to be situated. In a legal system based and centered on states as the primary subjects, it seems appropriate to describe the other actors with respect to those primary actors. They are indeed characterized by the fact that they "are not states, and can never aspke to be such."6 From a theoretical perspective, the binary division of actors Ulto states and non-states or subjects and objects can be seen as too traditional an approach to kiternational law,7 but scholars seem to agree that most non-state actors, with the exception of kiternational organizations, are not subjects of kiternational law.8 Other scholars, however, have vigorously opposed such a traditional perspective on the concept of subjectivity.9
Despite criticisms about the notions of non-state actors and subjectivity, and the growing importance of non-state actors in Uitemational relations, thek formal role either in law-making, implementation of law, or international dispute settlement has only very exceptionally been recognized.10 The categorization of entities other than states as non-state actors does not thus imply that they are irrelevant in international law, but rather suggests that thek participation has not yet been formalized. Indeed, the influence and informal involvement of nonstate actors, such as NGOs, Ui various fields of international law and international relations is now beyond doubt.11 As righdy noted by some autiiors, although NGO participation essentiaUy and originaUy belongs to the realm of poütical science, die developments Ui thek participation nevertheless have important legal impUcations.12 Undoubtedly, non-state actor access to international dispute setdement has increased substantiaUy in recent years, particularly through the proUferation of judicial Uistitotions, which have granted standing to several non-state actors, above aU, Uidividuals and corporations.13
NGOs also have been granted dkect access, as parties, to international proceedings. The European Court of Human Rights, the African Court of Human Rights, and the European Court of Justice have accepted dkect NGO access.14 In those cases, however, NGOs need to be direct victims of a violation of the law,15 and thus a disputing party themselves, representing thek own interest. Other instances in which NGOs have gained access to dispute settlement mechanisms are principaUy Ui the area of international environmental law.16 Article 9(2) of the 1998 Aarhus Convention on Access to Information, PubUc Participation in Decision-makkig and Access to Justice in Environmental Matters (Aarhus Convention) obüges member states to assure that "members of the pubüc concerned having a sufficient interest have access to a review procedure."17 Article 9(2) also notes that NGOs promoting environmental protection and meeting any requkements under national laws are deemed to have sufficient interest for the purpose of that paragraph. Although the Aarhus Convention grants wide standing to NGOs Ui envkonmental matters,18 it should be stressed diat this standing is essentiaUy before domestic rather than kiternational judicial bothes. But this standing nevertheless opened the door for NGO standing before regional courts such as the European Court of Justice. 19
However, despite these interesting developments, direct NGO participation in kiternational courts and tribunals generaUy remains relatively umited, and mus, thek participation remains essentiaUy a matter of domestic Utigation.20 Even those international courts that have broadened thek access to non-state actors have not generaUy included NGOs as potential parties. For example, the access granted to non-state actors before the Seabed Disputes Chamber of the International Tribunal for the Law of the See (ITLOS) is umited to companies and Uidividuals of states parties, although some have argued that if NGOs were to be considered international legal persons they may have standing before the ITLOS.21 However, besides official participation as parties to disputes, the reality of the increased influence and role of NGOs Ui Uitemational law and international relations is a development that existing courts and tribunals have not been able to avoid. In particular, the ICJ has been confronted with requests for active participation by NGOs.
III. NGOS AT THE INTERNATIONAL COURT OF JUSTICE
Taking Ulto account the above considerations, it might seem odd to speak of participation of non-state actors before international courts such as the ICJ, whose statute clearly and expücidy rejects every possible type of dkect participation of entities other than states Ui disputes brought before it.22 However, the ICJ is increasingly confronted with non-state actor participation. In the two most recent advisory proceedings, for example, the ICJ accepted each time mat the non-state actors that were dkecdy concerned by the question posed to the Court could present both written and oral statements before the Court.23 The Court has done so not by reference to a specific article of its statute or of the Rules of die Court, but by relatively pragmatic considerations.24
As far as NGOs are concerned, they have played a substantial, albeit informal, role in initiating certain cases before the ICJ. It is generaUy acknowledged, for example, that NGOs have been decisive Ui triggering the request for the ICJ advisory opinion on the legality of the Threat or Use of Nuclear Weapons.2* As a result, the "Court and the judges received thousands of letters inspked by these groups, appealing both to die Members' conscience and to the public conscience."26 These voluntary submissions have, however, not been formaUy acknowledged by the Court, due to explicit provisions in the Rules of the Court regarding dikd-party submissions.27 But dus development has not gone unnoticed and has in fact been severely criticized by several ICJ Judges, among them Judge GuUlaume, who noted Ui his separate opinion that, given the active involvement of NGOs before and during the proceedings, the Court "could have considered declining to respond to the request for an advisory opinion." Indeed, Judge GuUlaume wondered whether, "in such ckcumstances, the requests for opinions could still be regarded as coming from the Assembies which had adopted them," but then concluded by saying, "I dare to hope that Governments and intergovernmental Uistitutions still retain sufficient independence of decision to resist the powerful pressure groups which besiege them today with the support of the mass media."28
In contentious cases, the ICJ Statute allows the Court to request a "pubüc international organization" to furnish Uiformation relevant to a case before the Court.29 The Statute also permits a pubüc international organization to provide, on its own initiative, Uiformation relevant to a case before the Court.30 To avoid any ambiguity, the last paragraph of that article clarifies that a "pubUc international organization" is an Uitemational organization of States,31 dius expücidy excluding NGOs from submitting briefs or being heard by the ICJ in contentious cases. An attempt by the International League for the Rights of Man to request permission from the ICJ to submit information to the Court Ui the Colombian-Peruvian Asylum Case was rejected by the Court on the ground that the League was not a pubüc international organization as envisaged by the Statute.32
On occasion, however, states include amicus curiae briefs of NGOs in thek written submissions,33 in which case these submissions officiaUy form part of the state's submission. Technically such submissions can no longer be considered as amicus curiae briefs since the state that has included the briefs in its submissions, to a certain extent, can be considered to have endorsed the views expressed thereUi.
In advisory proceedings, the statute provides that the Court may invite any "international organization" that the Court considers Ukely to be able to furnish Uiformation on me question to submit written statements or hear oral statements relating to the question.34 The use here of the term "international organization" Ui the rules relating to advisory proceedings - as opposed to "pubüc international organization" Ui contentious cases - has prompted several commentators to point out mat NGOs would on that ground be able to submit written statements to the Court.35 However, whether or not the drafters of the statute intended this distinction is highly debatable.36 Practice confirms that the ICJ is relatively reluctant to admit such participation. Except on one occasion, which was not foUowed by the actual submission of a written statement,37 the Court has never officiaUy requested any written submission by an NGO.38
In the most recent request for an advisory opinion, the ICJ umited those entities Ukely to provide Uiformation on the question submitted to the Court to the UN and its Member States.39 In practice, as noted akeady with respect to the advisory opinion on the Legality of the Threat or Use of Nuclear Weapons, the Court spontaneously receives many amicus curiae briefs by various NGOs.40 When NGOs submit briefs to the Court in advisory proceedings, the Court treats the briefs merely as factual information placed at the disposal of the judges without officially considering them as amicus curiae briefs. Therefore, the briefs do not form part of the record in those cases. In practice, the Court has made the submissions available to the members of the Court by placing them in the library.41 It is thus difficult, if not impossible, to assess the effective impact of the submissions of NGOs on the outcome of the Court's decision. This custom has since then been enshrined in the ICJ's practice directions. The relative reluctance by the Court to accept amicus curiae briefs stands, however, in sharp contrast with the practice developed in international economic and investment law.
IV. NGO PARTICIPATION IN ECONOMIC AND INVESTMENT DISPUTES
NGOs have principally benefited from the openings created by the expansion of legal dispute settlement mechanisms in recent decades by gaining access to international economic and investment dispute settlement procedures via amicus curiae submissions. NGO participation in international economic and investment disputes is part of a much broader phenomenon. First, participation of NGOs in economic and investment law entails more than their sole participation as amici curiae in dispute settlement procedures. It includes, for example, consultation.43 Secondly, amicus curiae briefs by NGOs and other private parties are, either formally or in practice, accepted in several other courts and tribunals such as the European Court of Human Rights,44 the InterAmerican Court of Human Rights,45 and international criminal tribunals and courts.45 Moreover, although principally used in practice to give a voice to NGOs, the practice of amicus curiae briefs has been extended to other private or public organizations and individuals.47
In the area of international economic and investment law, NGO participation as amici curiae has explicitly, but compared to other mainly human rights courts and tribunals only recently, been accepted in several judicial decisions. This Section starts with an overview of the legal aspects of NGO participation in international economic and investment disputes. It then addresses the rationale and appropriateness of such submissions in WTO proceedings and investment arbitration, and concludes with an assessment of the effectiveness of such submissions in light of the described developments.
A. The Legality of NGO Participation as Amicus Curiae
When tribunals are first confronted with NGOs' voluntarily submitting briefs, the tribunals or courts that have to assess the legality and acceptability of such interventions are often faced with the absence of specific regulations or rules both in international law generally and in their own statutes or rules of procedure. These statutes and regulations often contain explicit rules only on the procedure of third-party intervention, which enables a third state to participate directly as a party in the proceedings provided that it has a legal interest that may be affected by the decision in the case.48 That procedural mechanism is fundamentally different from the participation as amicus curiae. Nevertheless, despite the original absence of any explicit provision allowing amicus curiae interventions, the legality of this practice has been accepted in both WTO proceedings and investment arbitration.
1. NGOs in the WTO Dispute Settlement System.
The acceptance of NGO participation through amicus curiae submissions in the context of international trade is particularly remarkable since it gives NGOs access to international dispute settlement to represent a non-state interest, even though the essence of the dispute relates purely to international legal obligations of states. The reason why only states have, to date, access to the WTO Dispute Settlement System is that the obligations contained in the Agreement Establishing the World Trade Organization are purely inter-state obligations, although the activity regulated by the WTO is by its very nature commercial. Such activity is principally, if not almost exclusively, the prerogative of private actors.49 The purely inter-state obligations arising out of the WTO explain the absence of direct standing of individuals or corporations in the WTO Dispute Settlement System.50 However, many, if not most, WTO cases in effect direcdy concern disputes between corporations, and it has often been pointed out that the initiation and resolution of trade disputes under the WTO Dispute Settlement Understanding (DSU) are a direct consequence of the lobbying of corporations and other industry lobbying groups.51
The Shrimp /Turtle dispute was the first WTO dispute involving NGO participation in proceedings through the submission of an amicus curiae brief. The case was first brought before a WTO Special Panel. Three groups of NGOs submitted briefs to the panel in order to influence the Panel's decision.52 The Panel rejected on legal grounds the unsolicited information provided by these three NGOs.53 In doing so, the Panel essentially relied on an a contrario interpretation of Article 13.2 of the DSU,54 which provides that Panels have the right to seek information. The Panel thus found that the submission of information by private parties cannot be made voluntarily but only by the specific and explicit request of the Panel.55 The Panel did not decide that such submissions would be useless or inappropriate, but instead refused as a matter of prindple to allow parties, other than the disputant states and third parties who are explicitly allowed to intervene under the DSU, to intervene in WTO Proceedings.
The Panel Report was appealed to the WTO Appellate Body, who rejected the a contrario interpretation given by the Panel.56 The Appellate Body first confirmed that every state has the right to attach amicus curiae briefs to its own submissions, and then drew a distinction, as the Panel did, between those briefs and briefs that are not part of the official submission of a state.57 With regard to the first type, the panel is obliged to take into consideration the submission since it is part of the official submission of the state. As far as voluntary submissions by NGOs are concerned, the Appellate Body argued that there is no rule in the WTO DSU that prohibits panels from accepting information voluntarily submitted, since "authority to seek information is not properly equated with a prohibition on accepting information which has been submitted without having been requested."58 The Appellate Body thus noted that panels have discretionary authority either to accept and then consider or to outright reject the information and advice submitted by NGOs. The principles laid out by the Appellate Body have since, with several exceptions, been confirmed by the practice of the Panels. For example, in the Asbestos case, the Panel took into consideration two NGO briefs that the EC had decided to incorporate into its own submissions.59 In Australia - Salmon, the Compliance Panel explicidy invoked the Appellate Body's decision as well as Article 13.1 of the DSU, to support the acceptance of unsolicited information as part of the record.60
With respect to the submission of amicus curiae briefs to the Appellate Body, the Appellate Body decided in a subsequent case that it had, relatively similarly to the panels, the authority to accept and consider amicus curiae briefs if it finds it "pertinent and useful to do so."61 The Appellate Body based this authority not only on the absence of any prohibition to this effect in the DSU, but also on its broad authority to adopt procedural rules, since under the DSU, it has the right to draw up its working procedures.62 The Appellate Body has confirmed its jurisprudence in later cases, and has even elaborated upon rules containing requirements for the submission of amicus curiae briefs in the Asbestos case.63 The WTO Appellate Body has on occasion also confirmed that individuals and NGOs have no legal right to make submissions to the Appellate Body, and that therefore the Appellate Body has no legal duty either to accept or to consider unsolicited amicus curiae briefs submitted by NGOs or individuals.64 Contrary to several decisions in international investment law, addressed next, the Appellate Body did not initially clearly state the reasons behind its interpretation of the WTO DSU, nor did it say on what grounds such submissions would be considered not pertinent or appropriate. It merely noted that panels have relatively broad discretion to accept, reject, or consider amicus curiae briefs. Since these groundbreaking decisions, member states have also requested and been granted permission to submit amicus curiae briefs to the WTO Appellate Body.65
The practice set in motion by the WTO Appellate Body has triggered similar developments in other related fields of international law. In particular, international investment arbitral tribunals have accepted amicus curiae submissions by NGOs, despite the fact that the dispute settlement system is traditionally closed to participation by non-disputing parties.
2. NGOs in international investor-state arbitration.
The participation of NGOs in international investment arbitration has developed along the same lines as NGO involvement in the WTO system. Investment arbitration under the Convention on the Settlement of Investment Disputes between States and Nationals of other States, which established the International Centre for Settlement of Investment Disputes (ICSID) initially contained no explicit reference to the submission of amicus curiae briefs. The United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules neither explicitly authorize nor explicitly prohibit an arbitral tribunal to accept an amicus curiae brief.66 At the same time, the UNCITRAL Rules convey to the tribunal a large amount of discretion in terms of procedural rules and principles, limited only by contrary party agreement and the principle of equality.
Article 15.1 of the UNCITRAL Arbitration Rules states that "the arbitral tribunal may conduct the arbitration in such manner as it considers appropriate, provided that the parties are treated with equality and that at any stage of the proceedings each party is given a full opportunity of presenting his case." The Iran-US Claims Tribunal, which functions under an amended and modified version of the UNCITRAL Arbitration Rules, has adopted an interpretative note to Article 15 of the Rules in which it authorized the submission of amicus curiae briefs by parties other than Iran or the US only "under special circumstances."67 Although non-party submissions in proceedings before the Iran-US Claims Tribunal have been relatively limited,68 the principled acceptance by the Tribunal of the authority to receive and consider amicus curiae submissions in accordance with the UNCITRAL Arbitration Rules was used for subsequent investment arbitrations, which similarly had to decide on the acceptability of amicus curiae briefs.
In 2001, in the ground-breaking Methanex decision,69 a NAFTA Chapter 11 Arbitral Tribunal, by referring to the case law of the Iran-US Claims Tribunal and the cases before the WTO mentioned above, concluded that it had the power to accept amicus curiae briefs. The Tribunal considered that neither the UNCITRAL Arbitration Rules nor Chapter 11 of the NAFTA Agreement contained any explicit provision concerning amicus curiae briefs.70 The Tribunal noted that, as mentioned above, Article 15 of the UNCITRAL Arbitration Rules gives the Tribunal a lot of discretion in terms of procedural rules.71 The Methanex Tribunal also righdy pointed out that accepting amicus curiae briefs from a party other than a disputing party is not the equivalent of adding that entity as a party to the arbitration.72
It is important to point out that the Tribunal in Methanex invoked the need for greater transparency. It also called for the involvement in the case of issues relating to the "public interest" in support of the authority