THE ROLE OF AMICUS CURIAE IN THE INTERNATIONAL COURT OF JUSTICE Dr. Elena Pineros Polo 1 Dr Elena Pineros
WHAT IS THE AMICUS CURIAE? There is no definition of amicus curiae. Neither the Statute nor the Rules define what amicus curiae is. It is a friend of the Court, which is not a party to a case, but has relevant information that can be useful for the judges to resolve the dispute. The amicus curiae does not submit any pleadings, or requests to the Court, it has no legal interest in the cause, it cannot be considered as a third subject intervening in the proceedings within the meaning of art. 62 and 63 Statute. It only has valuable information which can be useful for the Court. Its participation differs from both forms of intervention regulated in the Statute. Art. 62 Statute: Should a state consider that it has an interest of a legal nature which may be affected by the decision in the case, it may submit a request to the Court to be permitted to intervene. It shall be for the Court to decide upon this request. Art. 63 Statute: Whenever the construction of a convention to which states other than those concerned in the case are parties is in question, the Registrar shall notify all such states forthwith. Every state so notified has the right to intervene in the proceedings; but if it uses this right, the construction given by the judgment will be equally binding upon it. Art. 50 Statute: The Court may, at any time, entrust any individual, body, bureau, commission, or other organization that it may select, with the task of carrying out an enquiry or giving an expert opinion. Who would submit amicus curiae briefs? Individuals, NGOs, any territorial entity, which is not considered a State, according to Int. Law. 2 Dr Elena Pineros
It is unclear and vague. ICJ Statute and the Rules remain very confusing. There are no clear provisions regulating an amicus curiae system in the ICJ. Only a few rules can be considered as the regulatory framework, albeit is not accurate. There is a significant dissimilarity between the articles regulating this figure, which leads to assert that there is a different approach of this issue depending on the type of jurisdiction the ICJ is exercising. Contentious cases: Art. 34.2 Statute: The Court, subject to and in conformity with its Rules, may request of public international organizations information relevant to cases before it, and shall receive such information presented by such organizations on their own initiative. Vague wording gave rise to a debate regarding the inclusion of NGOs in the meaning of art. 34.2. The main argument focused on the scope of the activity of the international organization by interpreting public int org as int organization acting in the public interest. However, the door to NGOs was closed when the Rules were amended (2005) Art. 69.4 Rules: In the foregoing paragraph, the term public international organization denotes an international organization of States. REGULATORY FRAMEWORK 3 Dr Elena Pineros
REGULATORY FRAMEWORK (cont.) Advisory Jurisdiction: Art. 66.2 Statute: The Registrar shall also, by means of a special and direct communication, notify any state entitled to appear before the Court or international organization considered by the Court, or, should it not be sitting, by the President, as likely to be able to furnish information on the question, that the Court will be prepared to receive, within a time-limit to be fixed by the President, written statements, or to hear, at a public sitting to be held for the purpose, oral statements relating to the question. This provision is more open: int org à A variety of international organizations may be requested to furnish information. Arts 73.2 and 26 Statute PCIJ allowed the Court to request any int organization to furnish information. ILO did in a few advisory cases. It has been argued that the tripartite nature of the ILO diverts from an NGO stricto sensu. Practice Direction XII: 1. Where an international NGO submits a written statement and/or document in an advisory opinion case on its own initiative, such statement and/or document is not to be considered as part of the case file. 2. Such statements and/or documents shall be treated as publications readily available and may accordingly be referred to by States and intergovernmental organizations presenting written and oral statements in the case in the same manner as publications in the public domain. 3. Written statements and/or documents submitted by international non governmental organizations will be placed in a designated location in the Peace Palace. All States as well as intergovernmental organizations presenting written or oral statements under Article 66 of the Statute will be informed as to the location where statements and/or documents submitted by international non governmental organizations may be consulted. This provision underestimates the procedural relevance of the amicus curiae brief. 4 Dr Elena Pineros
CASE LAW: CONTENTIOUS JURISDICTION 1949 Corfu Channel Case (UK v. Albania): Yugoslav Gov. authorised Albanian Gov. to produce some docs to refute British arguments accusing Yugoslav Navy of laying mines in the channel, which exploded causing the death of several British soldiers. A State, not party to the proceedings submitted information indirectly to the ICJ, the Court accepted it subject to reserves since Yugoslavia was absent from the proceedings. The Court also found unnecessary to express an opinion about the probative value of that information. Albania presented the docs as part of its statementsà not a proper amici brief 1950 Asylum case (Colombia v. Peru): The League for the Rights of Man applied for a leave to submit info under art. 34.2, asserting that public referred to the interest pursued by the organization not to its nature. The Registrar refused the request. The League fought back by asking the Court to determine whether the League was a public international organization within the meaning of art. 34.2. The Registrar refused it again grounding his decision on the discrepancy between art. 34.2 and 66.2 of the Statute. 1951 Norwegian Fisheries case (UK v. Norway): The UK presented some notes sent by Sweden and Norway to the USSR where they explained they did not recognise the Norwegian sea delimitations. Again, a party to a case presents some docs within its submissions. It is not a proper amicus curiae brief. 5 Dr Elena Pineros
CONTENTIOUS JURISDICTION (cont.) 1996 Aerial Incident of 3 rd July 1988 (Iran v. USA): The Court requested the International Civil Aviation Organization (ICAO) to submit written observations regarding an aerial incident occurred in Iran where an aircraft was destroyed and 290 persons died. The ICAO submitted the brief on time as the Court requested. Although, the case was discontinued by the parties. 1999 Territorial and maritime dispute (Nicaragua v. Honduras): The Court requested the Secretary General of the OAS to submit written observations. The Secretary declined to do so. In these last cases the Court requested to a public international organization to submit information, under art. 34.2 of the Statute. Since 1999 there have been no more contentious cases with amicus curiae briefs admitted or requested. 6 Dr Elena Pineros
CASE LAW: ADVISORY JURISDICTION 1949 International Status of South West Africa: The messy case!!! The ICJ requested the League for the Rights of Man to submit a written statement after receiving the 1 st letter from a member of the League in NYC. He referred to the League s consultative status with the UN Economic and Social Council (ECOSOC), and noticed that the League had some valuable info, different from what the parties provided. The Registrar by telegram stated that the Court would welcome a written presentation, fixing a time-limit for its submission. There was a 2 nd letter sent by another member of the League in London, who obviously was not aware of the 1 st communication. The Registrar answered illustrating him about the request sent to the League after the 1 st letter. None of the missives yielded any response!!! A 3 rd letter was sent with a memorandum attached, a month after the deadline, requesting a leave to present an oral statement. The Deputy Registrar let him know that the required memorandum was submitted too late, and that the Court declined the League s help. 7 Dr Elena Pineros
ADVISORY JURISDICTION (cont.) 1970 Legal consequences for states of the continued presence of South Africa in Namibia: The beginning of the rejection policy. Several individuals and organizations attempted to gain access to the Court. All requests were rejected with different excuses and approaches. A Yale University Professorà The Court rejected his request using what became later the most common excuse to decline admission of amici briefs: the Court is unwilling to open the floodgates to what it seems it might become a vast amount of proffered assistance. The excuse turned to be weak, in the following years the ICJ just faced a few applications to submit amicus curiae briefs. The League for the Rights of Manà The application was not rejected immediately, the Registrar transferred to the Court, which after careful consideration dismissed it. Other organizationsà The rejection was based on the lack of international character of the organization as art. 66.2 requires. 8 Dr Elena Pineros
ADVISORY JURISDICTION (cont.) 1996 Legality of the Threat or Use of Nuclear Weapons: The Court bows to the NGO and Media pressure. The issue at stake attracted the attention from many NGOs and the media. The request for advisory opinion was made by the General Assembly as a consequence of a successful pressure strategy. Judge GUILLAME s separate opinion: The Court should have considering declining the request, since it was the result of excessive pressure of certain groups with the support of mass media. The Court received numerous briefs from different organizations under art. 66.2, and several letters from individuals. None of them were accepted as official submissions, but ordered the documents to be placed at the Court s Library. No official acceptance of the briefs but new treatment. 2003 Legal consequences of the construction of wall in the occupied Palestinian territory: A change in the approach. The Court decided that the UN and its Member States were likely to furnish information under art. 66.2. Since Palestine had the special observer status granted by the General Assembly, and it was co-sponsor of the draft resolution requesting the advisory opinion the Court decided to permit Palestine to submit written and oral statements. 9 Dr Elena Pineros
ADVISORY JURISDICTION (cont.) 2008 Accordance with Int Law of the unilateral declaration of independence by the provisional institutions of self-government of Kosovo: The new wider approach continues. Again the Court Court decided that the UN and its Member States were likely to furnish information under art. 66.2. During the debate preceding the adoption of the request by the GA, many states argued that the Authors of declaration should participate in the proceedings. The Court authorised them to furnish information as well as to intervene in the hearings. Summary of the ICJ approach regarding amicus curiae brief in advisory proceedings: 1 st South Africa Case: ICJ requested the League s brief. Procedural mess!! 2 nd South Africa Case: ICJ rejected all the requests using different excuses. Nuclear weapons case: The Court bows to the NGOs pressure strategy. Palestinian Wall case: ICJ permits Palestine to participate (written and oral statements). Kosovo Case: The authors of the independency declaration are allowed to participate. 10 Dr Elena Pineros