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Non-State Actors and InternationalLaw 5:209 286, 2005, 209
© 2005 Koninklijke Brill NV Printedin the Netherlands.

The Amicus Curiaebefore International Courts and Tribunals

LANCE BARTHOLOMEUSZ*

TABLE OF CONTENTS
I IN TR OD U C T ION .................................................................................... 211
II PROCEDURE AND PRACTICE OF INTERNATIONAL
COURTS AND TRIBUNALS .................................................................. 212
1) INTERNATIONAL COURT OF JUSTICE ................................................................ 212
1.1 Contentiousproceedings .................................................................... 212
1.2A dviso y p roceedings ........................................................................ 217
1.3C oncluding remarks .......................................................................... 225
2) INTERNATIONAL TRIBUNAL FOR THE Law OF THE SEA ...................................... 226
2 .1 Gen eral .............................................................................................. 22 7
2.2 Contentiousproceedings .................................................................... 228
2.3 A dvisoy proceedings .......................................................................... 230
2.4 C oncluding remarks .......................................................................... 231
3) EUROPEAN COURT OF HULMAN- RIGHTS ............................................................ 232
4) INTERNATIONAL CRIMINAL COURTS AND TRIBUNALS ........................................ 242
4.1 InternationalCrim inal Court ............................................................ 242
4.2 InternationalCriminal Tribunalforthe Former ugoslavia (1CTY)
and InternationalCriminalTribunal.forRwanda (UCTR) ................ 243
4.3 Special Court for SierraLeone .......................................................... 253
5) WORLD TRADE ORGANIZATION, DISPUTE SETTLEMENT BODY .......................... 254
6) Amici CURIAE AND ARBITRATION: NAFTA AND ICSID TRIBUNALS ............. 265
6 .1 In trodu ction ........................................................................................ 2 65
6 .2 jV4FT4 ................................................................................................ 2 65
6 .3 IC SID ................................................................................................ 2 70
6.4 C oncluding remarks .......................................................................... 272

III GENERAL CONCLUSIONS .................................................................. 273

1) JURIDICAL NATURE OF THE AMICUS CURIAE BEFORE INTERNATIONAL JURISDICTIONS 273
1.1 When can an amicus curiae participate?(Criteria ratione materiae) 274
1.2 Wio can be an amicus curiae? (Criteria ratione personae) ................ 275
1.3 The court or tribunals discretion ...................................................... 276

* Legal Officer, United Nations Relief and "Works Agency for Palestine Refugees in the Near East,
Headquarters, Gaza. The views expressed herein are mine and are not intended to represent the opinions of
UNRWA or the United Nations. I would like to thank Lucius Caflisch and Claire Mitchel for comments on
earlier drafts.
210 LANCE BARTHOLOMEUSZ

1.4 Form and content ofamicus curiae participation .............................. 277

1.5 F u n ctions .......................................................................................... 2 78
2) POLICY ISSUES .............................................................................................. 280
2.1 Does the anicus promotepeaceful settlement of international
d isp u tes ? .......................................................................................... 281
2.2 Amicus participation and the consent of the parties to third party
dispute settlement ................................................................................ 282
2.3 Juria novit curia and amicusparticipation .......................................... 282
2.4 Does amicus participationpromote the legitimacy accountability
and transparency ofinternationaljurisdictions? ................................ 283
3) PRO SPECTS .................................................................................................... 2 85
 THE AMICUS CURIAE BEFORE INTERNATIONAL COURTS AND TRIBUNALS

I INTRODUCTION

Amicus curiae translates as "friend ofthe court". The friend of the court is, as an ICSID
tribunal recently summarized, "recognized in certain legal systems and more recently
in a number of international proceedings. In such cases, a nonparty to the dispute, as
Ia friend,' offers to provide the court or tribunal its special perspectives, arguments, or
expertise on the dispute, usually in the form of a written amicus curiae brief or sub-
mission."' The amicus curiae is particularly prominent in the US, but is used in other
common law countries and known in some civil law jurisdictions.2 Since the 1990s
the amicus curiae has become more prominent before more international courts and
tribunals.
But what exactly is the juridical nature of this friend of the court? What functions
does it perform? What policy issues does its participation at the international level
raise? And what are the trends and prospects for its use?
This paper aims to answer these questions (Part III - General Conclusions) by ref-
erence to an analytical survey of the contemporary practice and procedure of selected
international courts and tribunals (Part II). In addition to the International Court of
Justice (ICJ), this paper examines: the International Tribunal for the Law of the Sea
(ITLOS); the European Court of Human Rights (ECHR); the International Criminal
Court (ICC); the International Criminal Tribunal for Former Yugoslavia (ICTY); the
International Criminal Tribunal for Rwanda (ICTR); the Special Court for Sierra
Leone (SCSL); the WTO Dispute Settlement Body, and NAFTA and ISCID arbitral
tribunals.3
Overall, the role of international courts and tribunals in the peaceful settlement of
disputes is relatively modest. Most disputes are solved through negotiation. As a
NAFTA tribunal stated in 2001 in the context of the amicus curiae,"international law
and practice and related national law and practice have either ignored or given very low

Agnas Argentinas S.A and Others v.PetitionJbr Transparencyand Participationas Amicus Curiae,
ICSID case No.ARB/03 19, 19 May 2005.
2 See flurther Shelton, "The Participation of Nongovernmental Organizations in International
Proceedings".American Journal olInternationalLaw, Vol. 88, 1994. pp. 611 642, at pp. 616-619. Although
international amicus curiae practice is undoubtedly influenced by domestic practice, particularly inUS
courts, it is beyond the scope of this paper to conduct a comparative study of amicus practice in municipal
jurisdictions and gauge its influence on the practice of international jurisdictions.
3 For reasons of space a number of international jurisdictions, many with relevant amieus practice, are
not analyzed in this paper: the inter-American Court of Human Rights (see further, for example, Shelton,
cited at note 2. at 638 640; Razzaque, "Changing Role of Friends of the Court in International Courts and
Tribunals", Xon-State Actors andInternationalLaw,Vol. 1,2002, pp. 169 200, at pp. 184 187); African
Commission and Court on Human and People's Rights (see further, fbr example, van der Mei, "The New
African Court on Human and Peoples' Rights: Towards an Effective Human Rights Protection Mechanism
for Africa?" Leiden JournalOf/thernational Law, Vol. 18, 2005, pp. 113 129); the European Court ofJustice
(see further, for example, Shelton, cited note 2,at pp.628 630). Although at best only a quasi-judicial body,
the UN Compensation Commission made provision fbr amicus-type participation by Iraq and all submit-
ting entities, which were able to provide information and views in writing on significant legal and factual
issues raised in individual claims: see ProvisionalRules Jbr Claims Procedure, Art. 16, UN Doc.
S/AC.26/1992/10, 26 June 1992. For reasons of space this paper also does not consider the role of amici
curiae in international conciliation proceedings.
 LANCE BARTHOLOMEUSZ

priority to third party intervention. , 4 Even in jurisdictions where amici curiae partici-
pate, their role is relatively modest. The changing role of the amicus curiae before
international courts and tribunals should be assessed in this context.

I PROCEDURE AND PRACTICE OF INTERNATIONAL

COURTS AND TRIBUNALS

1. International Court of Justice

The International Court of Justice (ICJ) is the principal judicial organ of the United
Nations and has non-compulsory jurisdiction in contentious and advisory proceedings.
Its primary clientele are States, which are the only entities able to be parties to disputes
in the ICJ contentious jurisdiction, and some organs and all but one specialized agen-
cies of the UN, which may request advisory opinions. International organizations
may participate as amici curiae in certain circumstances in contentious and advisory
proceedings.
Although the Court was initially open to NGO participation in its advisory juris-
diction, in 1971 it locked the door, let some materials slip under the door in 1996, and
then since 2004 left it slightly ajar. Unaffiliated individuals have never been welcome,
even if their direct interests form part of the subject matter of proceedings before the
Court.
This chapter analyzes the participation as amici curiae of States, international
organizations ("Os"), non-governmental organizations ("NGOs") and individuals in
the ICJ's contentious and advisory jurisdictions.

1.1 Contentiousproceedings

States
A State not party to a dispute may intervene in contentious proceedings if it considers
that it has an "interest of a legal nature which may be affected by the decision in the
case" or it is party to a convention the construction of which is in question. The Court
has been reluctant to permit States to intervene. This might indicate an overall reluc-
tance to permit third-party participation in contentious disputes. There is no other
fomial process whereby States can participate in contentious proceedings, for exam-
ple as amici curiae. Informally and very exceptionally, a State not party to a dispute
has submitted information to the Court which the Court then considered. In Cortiu
Channel, where the United Kingdom brought a case against Albania, the Court
accepted, subject to reservations, a cornmuniqu6 from Yugoslavia that refuted the
6
British suggestion that Yugoslav ships had laid mines in the Channel.

UPS, cited at note 24, §40.

tCJ Statute, Arts. 62 and 63.
6 See Corl, Channel (United Kingdom v. Albania), Merits, Judgment of 9 April 1949, tCJ Reports 1949,

p. 4. at p. 7, discussed in Chinkin, Third Parties in International Law, Oxford, Clarendon Press, 1993,
pp. 226 227.
 THE AMICUS CURIAE BEFORE INTERNATIONAL COURTS AND TRIBUNALS

InternationalOrganizations
In principle only States can be parties to disputes before the ICJ. The English text of
Article 34(1) of the ICJ Statute provides: "Only States may be parties in cases before
the Court" and the French text provides: "Seuls les Etats ont qualit&pour se presenter
devant la Cour." As Rosenne points out, on its face the English text does not prevent
non-parties from appearing before the Court but the French text ("se presenter") is
arguably more restrictive.
International organizations, including the UN and its organs and specialized agen-
cies, have very limited rights of participation in contentious proceedings. This is so
even though under the UN Charter the ICJ is the principal judicial organ of the UN.
The circumstances in which 1Os can participate in ICJ proceedings are governed in
practice by Article 34(2) and (3) of the ICJ Statute and, in principle, by Article 50.
Article 34(2) and (3) provide:

2. The Court, subject to and in conformity with its Rules, may request of public international organiza-
tions information relevant to cases before it, and shall receive such information presented by such organ-
izations on their own initiative.
3. Whenever the construction of the constituent instrument of a public international organization or of ar
international convention adopted there-under is in question in a case before the Court, the Registrar shall
so notify the public international organization concerned and shall communicate to it copies of all the writ-
ten proceedings.

Under Article 34(2) participation is limited to providing "information", which would

not ordinarily include legal argument or policy submissions, but there is insufficient
practice to exclude the possibility that it does.
There has been some debate about the scope of the term "public international
organizations". 9 Whatever the possible scope under the Article, the scope is restricted
in practice by the Rules of Court to "an international organization of States". 0 Because
Article 34(2) is "subject to and in conformity with [the Court's] rules", the Court is per-
fectly entitled to restrict the scope of "public international organizations", assuming
that is what it has done.

I Rosenne, "Reflections on the Position of the Individual in Inter State Litigation in the International
Court of Justice" in Sanders (ed.). IntcrnationalArbitration:
LiberAmicorunJbriMartinDomke, The Hague,
Nijhoff; 1967, pp. 240 251 atp. 244.
1 Compare Chinkin and Mackenzie, "International Organizations as 'Friends of the Court'. in Boisson
de Chazoumes et al. (eds), InternationalOrganizationsand InternationalDispute Settlement: Trends and
Prospects,Ardsley, N.Y., Transnational Publishers Inc., 2002, pp. 135 162, at pp. 139 140. ("[Article 34(2)]
is limited to information not argument or policy submissions although the stipulation is that it be rele-
vant to the case, not to the mandate of the organization.")
9 See fbr example, Shelton, cited at note 2, at pp. 620-622. Shelton argues that it is not clear that Article
26 of the PCIJ (the precedent fbr Article 34 of the ICJ Statute) "should be considered a precedent restrict-
ing the term 'public international organization' to organizations that are only composed of or contain states
represented by governments". In particularly Shelton notes that the International Labour Organization, a tri-
partite organization of mixed State and non-State membership, had access to the PCIJ in contentious cases
under Article 26 through the International Labour Office, the ILO's secretariat.
11 ICJ Rules of Court, Art. 69(4), adopted 14 April 1978, as amended to 14 April 2005.
 LANCE BARTHOLOMEUSZ

The Court has very occasionally used Article 34(2) to request information from an
intergovernmental organization. For example in the AerialIncident of3 July 1988 the
Court invited the International Civil Aviation Organization (ICAO), a specialized
agency of the UN, to provide factual information about ICAO Council proceedings fol-
lowing the aerial incident including copies of its relevant decisions."I As Chinkin and
Mackenzie note, despite this example, lOs are hardly lining up to offer information in
contentious cases, and the Court seems barely willing to ask them to do so, even where
it might be expected that certain 1Os would be in a special position to provide infor-
mation or views. 2 Where was the United Nations Environmental Programme during
the Gabcikovo-ANagymarosproceedings? 3 And could the ICAO not have contributed
useful information in the case concerning the Aerial Incident of 10 August 1999 and
inLockerbie?4 There will no doubt be institutional constraints on lOs providing timely
information to the Court, for example, depending on the nature of the organ compe-
tent to provide the information: an 1O's secretariat will be able to respond faster than
the 1O's governing body. But these constraints are not insurmountable. For example,
the United Nations High Commissioner for Refugees has intervened in proceedings
before domestic courts. 16
Article 50 of the ICJ Statute provides a potential avenue for the Court to invite 1Os
to participate as amicus curiae in contentious cases: "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.' 7 The
Permanent Court of International Justice ("PCIJ") had the same power, which was
intended to permit it to obtain views other than those submitted by the parties." For

AerialIncidento/ 3,July 1988 (Islamic Republic of Iranv. USA), ICJ Pleadings, Vol. It, p. 618.
12 Chinkin and Mackenzie, cited at note 8. pp. 141 142.
13 Case concerning the Gabcikovo-N ag),marosProject (Hungary v. Slovakia), Judgment of25 September
1997, ICJ Reports 1997, p. 7. In October 1994, while proceedings in the case were ongoing, Shelton had
strongly suggested that participation of third parties, in particular NGOs, was desirable: see Shelton, cited
at note 2. pp. 625 626.
14 Case concerning the Aerial Incident of l0 August 1999 (Pakistan v. tndia), Judgment of 21 June 2000,

ICJ Reports 2000, p. 12; Question o/ the Interpretation and Application of the 1971 Mlontreal Con enton
arisingfJom the Aerial Incidcnt at Lockerbic (Libyan Arab Jamahiriya v. UK; Libyan Arab Jamahiriya v.
USA), Preliminary Objections, Judgment of 27 February 1998, ICJ Reports 1998, p. 9. Chinkin and
Mackenzie refer to five other ICJ cases in which 10 participation might have been expected: see Chinkin
and Mackenzie, cited at note 8. pp. 141 142.
11 This point is illustrated by reference to two ICJ proceedings in Chinkin and Mackenzie, cited at note
8, pp. 142 143.
11 See, for example, ElAli and Daraz v. Secretaryof State/br the Home Deparment,Judgment of26 July
2002, teekv Law Reports, 2003, Vol. 1, p. 95 (UK Court ofAppeal).
17 Art. 50 ofthe ICJ Statute is supplemented by Art. 67 ofthe ICJ Rules ("1. Ifthe Court considers it nec-
essary to arrange for an enquiry or an expert opinion, it shall, after hearing the parties, issue an order to this
effect, defining the subject of the enquir or expert opinion, stating the number and mode of appointment
of the persons to hold the enquiry or of the experts, and laying down the procedure to be followed. Where
appropriate, the Court shall require persons appointed to carry out an enquity, or to give an expert opinion,
to make a solemn declaration. 2. Ever report or record ofan enquiry and evey expert opinion shall be com-
municated to the parties, which shall be given the opportunity of cormnenting upon it.")
11 1926 PCIJ. Statute and Rules of Court, Ser. D. No. 1. Art. 50, discussed in Shelton, cited at note 2,
pp. 627 628.
 THE, MICUS CURIAE BEFORE INTERNATIONAL COURTS AND TRIBUNALS

example, in Competence of the ILO to Regulate,Incidentally the Personal Work of the

Employer the PCIJ was willing to hear baking industry experts selected by the
International Federation of Trade Unions, although in the end the Federation did not
present them. 9
In sum, there are clear provisions enabling intergovernmental organizations to par-
ticipate as amici curiae in contentious ICJ cases. Neither the Court nor intergovem-
mental organizations have availed themselves of these provisions as much as might
have been expected. Consequently, there is little pressure to expand the circumstances
in which 1Os can participate in contentious case before the Court.

A GOs
The Court has never permitted NGOs to make formal submissions as amici curiae in
contentious cases. In 1950, in the Asylum case the International League for the Rights
of Man requested leave from the Court to present information relevant to the case pur-
suant to Article 34 of the ICJ Statute.20 (No request was made to present information
pursuant to Article 50 of the ICJ Statute.) The Court refused the request. The Registrar
advised the League that the Court found Article 34 inapplicable because the League
could not be characterized as a "public international organization as envisaged by the
Statute".
It appears, however, that on at least one occasion, in the Gabikovo-Vagymaros pro-
21
ceedings, the ICJ informally accepted submissions from an NGO.
Some scholars have suggested that Article 34(2) of the ICJ Statute could be re-
interpreted to include NGOs by reading "public international organizations" as encom-
passing "international public interest organizations"." This reinterpretation is unlikely
to gain favour among States or with the Court. Discussions leading to adoption in 1997
of the equivalent article of the Rules of the International Tribunal for the Law of the
Sea suggest that States consider that the scope of the term "public international organ-
23
izations" is restricted to intergovernmental organizations.
Further, as a NAFTA tribunal in Vethanex Corp. i. United States commented in
2001: "[The ICJ's] jurisdiction in contentious cases is limited solely to disputes
between States; its Statute provides for intervention by States; and it would be difficult
in these circumstances to infer from its procedural powers a power to allow a non-State
24
third person to intervene.1

> 1926 PCIJ, Ser B,No. 13 (23 July 1926).

21Asylun case, (Colombia v. Peru), ICJ Pleadings 1950, Vol. 11,pp. 227 228. For more discussion of the
nature of the League, see the text accompanying notes 51 to 54.
21 See Methatex Corp. v.United States, Decision on Petitions fiom Third Persons to Intervene as Amici

Curiae'.15 January 2001, §34 (NAFTAtribunal).

22 Shelton, cited atnote 2,625. See also Ascensio, "L'amicus curiae devant les
juridictions intena-
tionales", Revueg(ndrale de droit internationalpublic,Vol. 105, 2001, pp. 897 929, at p.907.
2 See further text accompanying notes 93 to 95, below.

24 ethanex, cited note 21, §34. See also the comments of another NAFTA Tribunal in UPS (Lnited
ParcelService of America Inc.) v.Governiment of Canada, Decision of the Tribunal on Petitions for
Inten ention andParticipationas Amici Curiae, 17 October 2001. §64: "It is true that in contentious cases
in the International Court of Justice only States and in certain circumstances public international organisa-
tions may have access to the Court (the latter only to provide information relevant to cases before it.) But
 LANCE BARTHOLOMEUSZ

Article 34 is unlikely to be a means for NGOs to have access to the ICJ in con-
tentious cases. In the future NGOs are more likely to succeed in gaining access to the
Court either by having a party to the case adopt their submissions as its own, as in WTO
and NAFTA proceedings, 2 or by using Article 50 of the ICJ Statute. But first they will
have to convince the Court and its main clientele- States- that their contributions will
not be a mere nuisance but will add value.

Individuals
Where States exercise diplomatic protection to bring claims on behalf of their nation-
als, the resulting State claims will necessarily affect the interests of these nationals. For
example, the quantum of damages is usually assessed by reference to the individual
national. But the nationals have no right to be heard, as such, in contentious case before
the ICJ. (Article 34 of the ICJ Statute was specifically drafted to exclude individuals
from appearing before the ICJ.)2" Only national States have that right and they may
choose what to claim and how to present the claim. This process accords with the clas-
sic concept of diplomatic protection as a discretionary power of a State to make an
international claim on behalf of its injured national on the basis that an injury to its
national is an injury to it. 27 But there are some unsatisfactory practical aspects. For
example, to use Rosenne's illustration, in Nottebohm it was essential for the ICJ to con-
sider Mr. Nottebolm's actions and motives when he applied for Lichtenstein nation-
ality. Yet he was unable to present his views directly to the Court. 28 Brownlie's view
is relevant here: "Even if the individual is not to be given procedural capacity, a tribunal
interested in doing justice effectively must have proper access to the views of indi-
viduals whose interests are directly affected whether or not they are parties as a mat-
29
ter of procedure.1
The Court has power to hear submissions from individuals, but in their limited
capacity of witnesses and experts.30 The Court's scant practice does not indicate a

that limit appears to result directly from the wording ofArticles 34, 35 and 61 64 ofthe Statute of the Court
which carefully regulate those matters as well as from the practice under them extending over several
decades."
25 See urther text accompanying notes 219, 224 and 281 of this paper. Ascensio suggests this possibil-
ity: see Ascencio. cited at note 22, p. 907.
2 Judge Hersch Lauterpacht explained: "When the Committee of Jurists, which in 1920 drafted the
Statute of the [PCIJ], adopted the present Article 34, one of the principal reasons which prompted its deci-
sion was the view that individuals are not subjects of international law and therefore they can have no locus
standi before international tribunals.": see Lauterpacht, H., "The Revision of the Statute of the International
Court of Justice: With an Introduction by Sir Elihu Lauterpacht', The Law and PracticeofJInternational
Courts and Tribunals, Vol. 1.2002, pp. 55 128, at p. 109. Chinkin cxplains that "there was concern that the
minorities accorded treaty protection after the First World War would claim to right of access to the Court.":
see Chinkin, cited at note 6. p. 230, note 25. See also Brownlie, "The individual before tribunls exercising
international jurisdiction' , incrnationa and ComparativeLaw Quarterly, Vol 11, 1962, pp. 701 720, at
p. 708.
21 tavronmaisPalestineConcessions Case (Jurisdiction)PCIJ, Ser A, No. 2 (1924).
2 Rosenne, cited at note 7. pp. 241 242. Rosenne notes that in the event this procedure did not result in
a practical injustice to the individual because his actions and motives were accurately evalued by the Court.
21 Brownlie. cited note 26, p. 719.
'o As to the power to appoint experts, see ICJ Statute, Art. 50; and ICJ Rules, Art. 67, set out at note 17.
As to witnesses, see Arts. 62 and 63 of the ICJ Rules.
 THE AMICUS CURIAE BEFORE INTERNATIONAL COURTS AND TRIBUNALS

desire on its part expansively to interpret the scope of an individual's capacity under
these rules to include that of amicus curiae.
In 1967 Rosenne expressed the view that "in the interests of the proper administra-
tion of international justice", the ICJ ought to take advantage of its existing powers to
permit an individual directly concerned to give to the Court his or her own version of
the facts and construction of the law. He suggested that this was not incompatible with
Article 34 of the ICJ Statute, that the Court had powers to prevent any possible abuse
of process; and that such a possibility would increase the Court's general standing and
prestige. 3 The Court was not persuaded then. And almost 40 years later it remains
unpersuaded.

1.2 Advisory proceedings

Article 66 of the ICJ Statute sets out which entities may participate in advisory pro-
ceedings and how:

1.The Registrar shall forthwith give notice of the request foran advisory opinion to all States entitled to
appear before the Court.
2.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 likelyto 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 sit-
ting to be held for the purpose, oral statements relating to the question.
3.Should any such State entitled to appear before the Court have failed toreceive the special communi-
cation referred to in paragraph 2 ofthis Article, such State may express a desire to submit a written state-
ment or to be heard; and the Court will decide.
4.States and organizations having presented written or oral statements or both shall be permitted to com-
ment 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.
Accordingly, the Registrar shall in due time communicate any such written statements to states and organ-
izations having submitted similar statements.

Apart from a few provisions specific to advisory provisions, the ICJ is in general
32
guided by the procedure applicable to contentious cases.

States
Under Article 66 of the ICJ Statute, all States entitled to appear before the Court receive
notice of an advisory opinion. The Court may invite certain States that it considers
"likely to be able to ftrnish information on the [relevant] question" to participate in the
written or oral phase of proceedings. If a State is not invited initially to lumish infor-
mation on the relevant question, there is explicit provision for it to request the Court
to do so and the Court has discretion to permit participation. States making submissions

31Rosenne, cited at note 7,p.250.

2 lCJ Statute, Art. 68: "Inthe exercise of its advisory functions the Court shall further be guided by the
provisions of the present Statute which apply in contentious cases to the extent to which it recognizes them
to be applicable."
 LANCE BARTHOLOMEUSZ

have a right to receive and comment upon the submissions of other States and inter-
national organizations.
The role of States in advisory proceedings has been uncontroversial. But very
recently the ICJ appeared to interpret loosely the term "State" for the purposes of advi-
sory proceedings.
Article 66 only refers to two types of legal entities that may participate in advisory
proceedings: "States" and "international organizations". So what was the legal basis
for the Court to request Palestine to make submissions in advisory proceedings in
Palestinian Wall?33 Since 15 December 1988 "Palestine" has been used in the United
Nations system to refer to the Palestine Liberation Organization (PLO).14 Palestine is
not (yet) a State, is not a member ofthe United Nations, and is not an intergovernmental
organization. But it addressed the Court before any member State or 1O. The General
Assembly had not requested Palestine's participation. 5 The practical reason for invit-
ing Palestine to address the Court was evident but the legal basis for doing so was not
made explicit. The Court stated:

in the light of Resolution ES-10/14 and the report of the Secretary-General transmitted with the request,
and taking into account the fact that the General Assembly had granted Palestine a special status of
observer and that the latter was co-sponsor of the draft resolution requesting the advisory opinion,
Palestine might also submit a written statement on the question within the above time-limit.6

The Court's attitude to Palestine in PalestinianWall contrasts with the 1988 advisory
proceedings in Applicability of the Obligation to Arbitrate under S. 21 of the United
Nations Headquarters Agreement of 26 June 1947.7 In that case, as Chinkin notes,
even though the PLO's Mission to the UN in New York was directly affected, the PLO
was neither requested to supply information to the Court nor did it apparently request
to be permitted to do so.3 This change in attitude may well mostly reflect the devel-
opment since April 1988 in the international status of Palestine and the PLO. But, con-
sidering that the legal basis for requesting Palestine to participate in proceedings is not
at all clear, it is suggested that its participation in Palestinian Wall indicates that the
Court is more willing to open itself to participation in advisory proceedings by quasi-
State entities where such involvement is essential to the administration of justice.
Contrast the Court's refusal of the application to participate in NAamibia in 1971 by four

33 Legal Consequences of the Construction ofta Wall in the Occupied Palestinian Territory, Advisory
Opinion of 9 July 2004.
34 See UNGA Resolution 43/177, UN Doc. No. ARES/43/177, 15 Decenber 1988, §3. The Palestinian
Authority, by contrast is the entity recognized under the Oslo Accords as having certain responsibilities in
parts of the occupied Palestinian territory: see, generally, Takkenberg, The Status oflPalestinianRefugees
in InternationalLaw, Oxford, Oxford University Press, 1998.
" Compare UNGA Resolution ES-10/14. 8 December 2003, set out at §1 of the Court's reasons for
judgment.
, Palestinian Wall, cited at note 33, §4.
37 Applicability of the Obligation to Arbitrate underS. 21 of the UnitedNationsHeadquartersAgreeiment
of 26 June 1947, Advisory Opinion of 26 April 1988, 1CJ Reports 1988, p. 12.
11 Chinkin, cited at note 6. p. 232, note 34. For discussion of this advisory opinion and corresponding
domestic proceedings in the US, see Stern, "L'affaire de l'OLP devant la juridiction internationale et
interne", Annuairefran(ais de droit international,Vol 34, 1988, pp. 165 194.
 THE, IJCUS CURIAE BEFORE INTERNATIONAL COURTS AND TRIBUNALS

"indigenous inhabitants of the international Territory of South West Africa

(Namibia) ... on behalf of the indigenous people of South West Africa (Namibia)". In
their letter to the Registrar these individuals had stated that "It is imperative that we
as a Namibia Nation, that is, a political and judicial entity and Wards of the United
Nations be heard by the International Court of Justice. By its technical judgment of
18 July 1966, the Court in effect conferred a 'special legal interest' upon the people of
39
South West Africa (Namibia)."'
The Court's approach in Palestinian Wall might also indicate a softer attitude gen-
erally to the participation of non-State entities in advisory proceedings.

Internationalorganizations
International organizations can participate in advisory proceedings in two ways: either
as a requesting body under Article 65 of the ICJ Statute or as bodies considered likely
to furnish relevant information under Article 66.
Under Article 65 of the ICJ Statute, 1Os play an integral role in the advisory pro-
ceedings. Bodies authorized by or in accordance with the UN Charter may request an
advisory opinion.4 The written request must contain an exact statement of the ques-
tion and be "accompanied by all documents likely to throw light upon the question".
Pursuant to this power, where requests are made by a UN organ, the UTN ' Secretary -
General will ordinarily submit a written statement with a dossier of documents.41
Article 65(2) does not limit the source of the documents accompanying the request for
an advisory opinion.
Article 65 does not expressly permit a written statement accompanying a request to
be supplemented orally by the requesting body's chief administrative officer or other
representative or, in the case of a UN organ, by the UN Secretary-General. But in prac-
tice the Court has allowed such oral participation. It has not expressly stated the basis
for doing so, although the Court's general power to "make orders for the conduct of
the case" is probably sufficient. 42 For example, when WHO requested an advisory
opinion in the Interpretationof the Agreement of 25 Varch 1951 between WHO and
Egypt,43 it sent its Legal Adviser to answer the Court's questions. In two advisory opin-
ions requested by the General Assembly concerning the UN's privileges and immu-
nities, Mazilur4 and Cumaraswamy,45 the UN Secretary-General made written

3'Legal Conseqiences.for States of the Continued Presence of South AJrica in Namibia (South West
Africa) 70wi"thsa1dingSecu'rit Council Resolutio 2 76 (1970), ICJ Pleadings 1971, Vol. 11,p. 677.
40 Advisory opinions may be requested, intcr alia, by the General Assenby, the Security Council,
ECOSOC, the 1AEA and all specialised agencies, except the Universal Postal Union.
41 As requested by the General Assembly, the Secretary-General submitted such a report in the advisory
proceedings in PalestinianWall: see §1.
42 See ICJ Statute, Art. 48. Some scholars have suggested that the basis of such a power is Art. 66(2). See
for example, Chinkin & Mackenzie, cited at note 8, p. 145.
41 Int rpretutonof theAgrement ofJ25 March 1951 berwen WHO and Egpt, Advisory Opinion of 20
Decenber 1980, ICJ Reports 1980, p. 73.
44 Applicability ofArticle V7I,Section 22 c the Convention on Privilegesand Immunities of the United
Nations. Advisory Opinion of 15 Decenber 1989, ICJ Reports 1989, p. 177; ICJ Pleadings, pp. 173, 234.
4' Ddiftrence Relating To iunity From Legal Process of a Special Rapporteur of the Commission on
Human Rights, Advisory Opinion of 29 April 1999, ICJ Reports 1999, p. 62.
 LANCE BARTHOLOMEUSZ

submissions. In Cumaraswamythe Court requested the UN Secretarv-General to give

a written statement in light of his pivotal role and primary responsibility as the chief
administrative officer of the Organization.46 The Secretary-General's representative
47
also attended the hearing and answered the Court's questions.
Article 66(2) of the ICJ Statute clearly enables the ICJ to invite written and oral sub-
missions of "international organizations" as amici curiae.ICJ practice indicates that
international organizations may also request the Court to be allowed to participate in
advisory proceedings. Most recently, in PalestinianWall, the Court accepted requests
to intervene from the only two intergovernmental organizations that sought to do so:
the League of Arab States and the Organization of the Islamic Conference. This prac-
tice has been uncontroversial, even though Article 66 only expressly permits States and
48
not 1Os to make such requests.
Over the life of the Court intergovernmental organizations have made moderate use
ofArticle 66 to participate in advisory proceedings to various extents. The level of par-
49
ticipation in this way has not been of much apparent concern to States or to scholars.
The term "international organization" in Article 66 certainly includes intergovern-
mental organizations and probably includes the International Labour Organization,
which is not a purely intergovernmental organization in the sense that it is a tripartite
body of which States and employer and employee organizations are members. For
example, in Reservations to the Convention on the Prevention and Punishment of the
Crime of Genocide, an advisory opinion requested by the General Assembly, the ILO
made written submissions.?0 Debate about the possible and desirable scope of the term
"international organization" has taken place mainly in the context of NGOs' partici-
pation in ICJ advisory proceedings, to which we now turn.

A GOs
Initially ICJ practice interpreted "international organization" in Article 66(2) ofthe ICJ
Statute as encompassing NGOs. In 1950 the International League for the Rights of Man
sought to furnish the Court with information pursuant to Article 66(2) in relation to its
advisory proceedings in InternationalStatus of South- T'estAfrica.- The League noted
that it was a long-standing international human rights organization with ECOSOC
consultative status. The League also indicated that it had been actively interested in
the matter for some time including participation in the General Assembly's Fourth
Committee. Indicating that it had extensive and relevant information and data and

' Compare ibid., §50.

§9.
47 Ibid.,

11 See ICJ Statute, Art. 66(3). Contrast the controversy about NGO requests to participate in WTO Panel
proceedings. The difference in approach is partly cxplained by the difference in the tcrrns of the relevant
provisions and that NGOs, and not intergovernmental organizations, requested participation in WTO
proceedings. Scc further Part 11,Chapter 5 of this paper.
4' Compare Chinkin and Mackenzie, cited at note 8. pp. 143 145.
5o Reservations to the Convention on the PreventionandPunishmentof the Crime of Genocide, Advisory
Opinion of 28 May 1951, ICJ Reports 1951, p. 15.
51Inte;nationalStatus of South-WestAfrica, Advisory Opinion of11 July 1950, ICJ Reports 1950, p. 128;
ICJ Pleadings, p.324.
 THE, MICLS CURIAE BEFORE INTERNATIONAL COURTS AND TRIBUNALS

that it had extensively researched the legal issues, the League submitted that "it would
further the purposes of the Court and the extensions and preservation of human rights
if the Court authorized it to furnish a written or oral statement." The Court informed
the League that it was prepared to receive within 25 days a written statement confined
to legal questions and not including facts not before the Court.52 The League submit-
ted its formal statement about one month late and was not, therefore, included in the
proceedings. 3 The Court specifically refused the League's request to participate in the
54
oral proceedings.
As the League's statement noted, Article 66 of the ICJ Statute is based on a provi-
sion of the PCIJ Statute, which also permitted "international organizations" to partic-
ipate in advisory proceedings. And PCIJ practice in relation to that provision indicated
55
that the scope of the term extended to private international organizations.
Notwithstanding that practice, in 1971, without giving any reason, the Court refused
the League's request to be allowed to furnish a written statement (which accompanied
the request) and to make an oral statement at the hearingi6 The Court also rejected the
application to furnish a statement made by another NGO affiliated with the League, the
American Committee on Africa." In the absence of reasons for refusal of the League's
request, it is difficult to determine why the Court acted as it did. Was it because it con-
sidered that the organizations were not "likely to be able to furnish information on the
question"? Was the Court concerned about the opening the floodgates? 5 Or, more fun-
damentally, did the Court consider that the expression "international organization"
should be restricted to "public international organization" within the meaning of
Article 34 of the ICJ Statute rather than to cover "international organizations" within
the meaning of Article 71 of the UN Charter? 59 The Registrar's response to the

12 InternationalStatus of South- ,estAftica,cited at note 51, ICJ Pleadings, p. 327.

13 InternationalStatus ofSouth- Mest Afi-ca, cited at note 51, ICJ Pleadings, p. 346. There were in fact
sonc statements filed prior to the deadline, but because they were not sent from the League's headquarters,
which had requested leave to file the statement, they were rejected: Clark, "The International League fbr
Human Rights and South West Africa 1947 1957: The Human Rights NGO as Catalyst in the International
Legal Process", Human Rights Quarterly,Vol. 3, 1981 pp. 101 136, at pp. 117 119.
InternationalStatus of South-JestAJrica, cited at note 51, ICJ Pleadings, pp. 343 344, 346.
Clark summarizes the submission as follows: "When first called upon to render an advisory proceed-
ing in 1922. in a case involving the construction ofa provision in the Treaty of Versailles concerning work-
ers' delegates to the International Labor Conference, [the PCIJ] had decided to permit participation by any
official organization which expressed the desire to be heard. This principle had been applied in later cases.":
see Clark, cited at note 53, pp. 120-121. As to relevant PCIJ practice, see further Shelton, cited at note 2.
pp. 621 623; and Chinkin, cited at note 6, pp. 229 230.
1 The Registrar stated simply that the Court had carefully considered the League's application and
decided "that it should not be acceded to." See Namibia, cited at note 39, ICJ Pleadings, Vol. II,pp. 639 640.
672,678 679.
1 iNamibia, cited at note 39, ICJ Pleadings, Vol 11,pp. 643, 639 640.
51Compare the response to Professor Reisman's request to submit an amicus brief. referred to in the text
accompanying note 76.
U.N Charter, Art. 71 provides: "The Economic and Social Council may make suitable arrangements fior
consultation with non-governmental organizations which are concerned with matters within its competence.
Such arrangements may be made with international organizations and, where appropriate, with national
organizations after consultation with the Member of the United Nations concerned."
 LANCE BARTHOLOMEUSZ

American Committee on Africa- that it was not an international organization -indi-

cates that the Court probably reconsidered its view that the League was an international
organization but was embarrassed to say so explicitly in writing. Whatever the reason,
the Court's position subsequently became clearer. The ICJ Rules relating to advisory
proceedings, as adopted in 1978, refer to "public international organization" rather than
mirroring the broader language of Article 66 '
Notwithstanding this considerable setback, in 1996 in the Nuclear Weapons advi-
sory proceedings,'2 the Court was flooded with uninvited NGO submissions. The
gatecrashers were received informally but frostily.3 As Ascensio notes, the fact that the
briefs were received at all indicates a softening of its previous position.6 4 The request
for an advisory opinion had been made by the General Assembly. It followed a par-
ticularly successful mobilization by NGOs under the banner of the World Court
Project. Part of their strategy was to push for an opinion from the ICJ on the legality
of the threat or use of nuclear weapons. Judge Guillaume was particularly critical of
the NGOs' involvement:

La Cour aurait pu songer dans ces conditions a ne pas dormer suite a lademande d'avis dont ctte &tait
saisie. Cette solution aurait trouv6 quelque justification dans les circonstances memes de lasaisine. En
effet, t'avis sollicit&par l'Assembite ganrale des Nations Unies (comme d'ailleurs celui demand6 par
t'Assemblae mondiale de la Sant&) a trouv6 son origme dans Faction mene par one Association d6nom-
mae "InternationalAssociationofLawiyers against uclearArmois" (IALANA) qui, de concert avec divers
autres groupements, a lanc6 en 1992 un projet intitul&"Wlorld Court Project"afin de faire proclamer par
laCour 'illicait&de lamenace ou de t'emploi des annes nucleaires. Ces associations ont fait preuve d'uue
intense activit en nue de faire voter les resolutions saisissant laCour et de provoquer l'intervention devant
cette dericre d'Etats hostiles aux armes nuclaires. Bien plus, la Coir et les juges ont rceu des milliers
de lettres inspires par ces groupements et faisant appel tant a leur conscience qu'a laconscience
publique.
Je suis certain que lespressions ainsi exercaes ont tc sans influence sur les dilibarations de laCoir,
mais je me suis interroga sur laquestion de savoir si, dans ces conditions, on pouvait encore regarder les
demandes d'avis comme emanant des Assemblees qui les avaient adoptees, ou si, appliquant latheorie
de l'apparence, laCour ne devait pas les 6carter comie irrecevables. J'ose cependant esparer que les gou-
vernements et les institutions intergouvemementales conservent encore une autonomic de d6cision
suffisante par rapport aux puissants groupes de pression qui les investissent aujourd'hui avec le concours
des movens de communication de masse. Je constate en outre qu'aucun des Etats qui s'est prasent devant
laCour n'a soulev one telle exception. Dans ces conditions, je n'ai pas cru devoir la retenir d'office15

More recently the Court has implicitly indicated that, in the context of advisory pro-
ceedings, the terms "international organization" and "intergovernmental organization"

6oNantibia. cited at note 39, tCJ Pleadings, p. 647. See also the Committee's further submissions
following the Court's refusal of its request (at p.649) which did not change the Court's mind and did not
elicit urther reasons (see pp. 652,672).
61 See tCJ Rules, Arts. 108 and 109.
62 Legality ofthe Threat or Use o1N/Wclear ttapons,Advisory Opinion of 8 July 1996, tCJ Reports 1996,
p.66.
6 Refering to a letter from the tCJ Registrar published in a newspaper, Ascensio states that the NGO
briefs were made available informally to the judges, but the Court did not refer to any its judgment. See
Ascencio, cited atnote 22, p. 906.
64 Ibi.
61 Legalir ofthe Threat or Use 01NNuclear Ileapons, cited note 62, Sep. Op.of Judge Guillaume, §2.
 THE, MICUS CURIAE BEFORE INTERNATIONAL COURTS AND TRIBUNALS

are co-extensive. Practice Direction XII, issued on 30 July 2004, suggests that the terms
are co-extensive when it refers to "All States as well as intergovernmental organiza-
tions presenting written or oral statements under Article 66 of the Statute". But ironi-
cally, despite this narrow interpretation ofArticle 66, this Practice Direction indicates
that in 2004 the Court seemed more receptive to NGO briefs than at any other time
since 1950. Practice Direction XII, which "involve[s] no alteration to the Rules of
Court, but [is] additional thereto", 6( provides:

1. Where an international non-governmental organization submits a written statement and/or document

in an advisory opinion case on its own initiative, such statement and/or docunment 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 accord-
ingly 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 ina designated location in the Peace Palace. All States as well as intergovernmental organiza-
tions presenting written or oral statements under Article66 of the Statute will be informed as to the loca-
tion where statements and/or documents submitted by international non-govermental organizations may
be consulted.

The Practice Direction does not dissuade uninvited NGO briefs It lonnalizes the
Court's relationship with NGOs. And it recognizes that NGOs have an interest in the
Court's advisory proceedings. This attitude contrasts markedly with Judge Guillaume's
comments in Nuclear 1eapons.
Secondly, indirectly, the Practice Direction gives the Court discretion to refer to
uninvited NGO briefs presented to it. Paragraph 2 states that the documents shall be
"treated as publications readily available and may accordingly be referred to ... in the
same manner as publications in the public domain", If legal arguments or factual mate-
rial are thus "in the public domain", whether or not the parties refer to them, the Court
could consider them consistent with its approach to information and evidence stated
in Nicaragua/.7It will be recalled that the ICJ recognized there that information could
come to it "in ways and by means not contemplated by the Rules", that the Court "is
not solely dependent on the argument of the parties before it with respect to the law",
and that, as to disputed facts, "in principle the Court is not bound to confine its
consideration to the material lrmally submitted to it by the parties ."161The Court's
judgments are not known fbr their comprehensive references to the sources relied upon
fbr its legal conclusions, nor has Court cited any authors, ever.69 So, the Court could

1 See ICJ Press Release 2004/30.

Military and ParamilitaryActivities in and against Nlicaragua(Nicaragua v. United States), Merits,
17
Judgment of 27 June 1986, ICJ Reports 1986, p. 14.
11Ibid., at p. 25, §31 ;at p.25, §29; and at p.25, §30. As to the broad powers of international tribunals in
regard to admissibility and weight of evidence, see C.F. Amerasinglic, "Principles of Evidence in
International Law", Intsitute oj'InternationalLaw earbook, Vol. 70, Part 1.2002 2003, Preparatory Work,
pp. 139 397, atpp. 248 269.
1For example, in Palestinian Wall, cited at note 33, in her Separate Opinion, Judge Higgins noted that
for the first time the Court had adopted the post-colonial view of the right to self determination, but did so
without any reference to the vast literature on the subject: see §30.
 LANCE BARTHOLOMEUSZ

consider NGO amicus briefs without explicitly stating that it has done so. Whether it
will in fact do so probably depends on whether NGOs can convince the Court that their
contribution is worth taking the time to review even if states or international organi-
zations do not refer to their briefs in the course of the advisory proceedings.
The commitment to "place" the NGO submissions in a designated location in the
Peace Palace implies that the Court will expend resources organizing and indexing
those briefs. Since the Court is not well resourced, and the number of submissions
could be immense (as in Nuclear Weapons), it appears that the Court is taking seriously
its new openness to NGO briefs.
Of course if parties do refer to NGO submissions, the Court will probably be
obliged to consider those submissions in the same way as it must consider the other
parts of the parties' submissions.

Individuals
The ICJ has never permitted individuals to appear as amici curiae in advisory pro-
ceedings, even where a person's interests would be directly affected by the outcome.
In the Namibia advisory proceedings an American international law professor
sought to submit an amicus brief to the Court, noting the "faint precedent" of the
Court's agreement to such a request by the League in 1950, and referring to its use in
common-law countries. 71 In response to the question whether the Court would accept
and consider a brief from an individual or a group, the Registrar said the Court would
not.7 The Registrar distinguished the precedent relating to the League's request on
the basis that individuals did not fall within the term "international organization"
in Article 66(2) of the ICJ Statute, which was limitative, and that in the same pro-
ceedings the Court had not acceded to individuals' requests to submit written or oral
2
statements.-
The Registrar also referred to the Court's refusal of a similar request in the Effects
of Awards of Compensation made by the United Nations Administrative Tribunal
advisory proceedings. In that case the Court refused a request to accept written and oral
submissions made by counsel who had represented UN staff members in UNAT pro-
ceedings that had resulted in awards subject of the General Assembly's request for an
advisory opinion.3 The Registrar also considered that the exclusion of individuals from
the scope of Article 66(2) was confirmed by the procedure agreed to by the Court in
proceedings on UNESCO's request for an advisory opinion about decisions of the ILO

11Letter from Professor Reisman to the Registrar, 10 Septenber 1970, ICJ Pleadings 1971, Vol. 11,
pp. 636 637.
-1 The Court also refused other individuals' requests to participate as amici curiae, including: Rev.
Michael Scott, who had been intimately involved in the League's attempted participation in the South W4est
Afi-ca proceedings in 1950; and fbour "indigenous inhabitants of the international Territory of South West
Africa (Namibia) on behalf of the indigenous people of South West Africa". See ICJ Pleadings 1971. Vol
11.pp. 644 645,647,676 678.
2 Letter from the Registrar to Professor Reisman, 6 November 1970, ibid., pp. 638 639, referring to
internatonaI Status of'Souih WestAtrica, ICJ Pleadings 1950, at pp. 328 329, 340-432.
Ib!,. referring to Ltlcts of Awards of Compensation made by the Lnited Nations Administrative
Tribunal, ICJ Pleadings, pp. 394-395.
 THE AMICUS CURIAE BEFORE INTERNATIONAL COURTS AND TRIBUNALS

Administrative Tribunal. 74 In that case the staff members' Counsel's observations

were transmitted by the organization that disputed the decision's validity. In this way,
the interested individual was accorded some measure of due process. Because this type
of advisory proceedings arises out of contentious proceedings, the Court has been con-
cerned about equality between the parties. To promote actual equality of the parties to
the contentious proceedings, the Court has dispensed with oral proceedings in which
only the organization whose decision was disputed could have participated.)"
In Namibia, the Registrar also considered that the Court "would be unwilling to open
the floodgates to what might be a vast amount of proffered assistance ... whatever
justification for describing the volunteer as an amicus curiaemay exist."t-16 At the time
the Court was hardly submerged with cases, and its prospects looked grim after its
notorious decision in the South WestAfrica cases.II In any event the "floodgates" argu-
ment is one that can be addressed not only through preventing the flood, but also by
7
managing it. 1
The Court could proprio motu call an individual as witness or expert, but "it has
never deemed it necessary to use its powers to ascertain more about an individual's
,
position or interests than the relevant government has wished to raise. 7

1.3 Concludingremarks

The ICJ has been reasonably open to amicus participation by its main clientele: States
(in advisory proceedings) and intergovernmental organizations (advisory proceedings
and some contentious cases). But intergovermental organizations in particular have
not availed themselves fully of opportunities to participate. Even though the Court
arguably has power to permit NGOs and individuals to participate in some capacity in
advisory and contentious proceedings, it has not done so formially. It has recently, how-
ever, indicated a greater willingness to facilitate some form of access by NGOs to the
Peace Palace, if not directly to the Court or into its judges' chambers.
The Court has not found it necessary to discuss the juridical nature of the amicus
much beyond references to its Statute and Rules. Exceptionally, in Malta, the Court
suggested that an amicus curiae would present its view "objectively" rather than "as
a closely interested participant in the proceedings intent upon seeing those issues
resolved in the manner most favourable to [it]". 0
74Judgments of the Administrative Tribunal of'ILO upon Complaintsmade against LN'ESCO, Advisory
Opinion of 23 October 1956,ICJ Reports 1956, p.77,at p.80.
75 See, for example, Application Jbr Review of Judgnent No. 273 of United Nations Administrative
Tribunal,Advisory Opinion of20 July 1982, ICJ Reports 1982, p.352,at p. 339, discussed in Chinkin, cited
at note 6,p.235.
71Cited at note 39, tCJ Pleadings 1971. Vol. 11,p. 639.
77South iestAfrica (Ethiopia v.SouthAfrica; Liberia v.SouthAfrica), Preliminary Objections, Judgment
of2l December 1962,ICJReports 1962, p.319; Second Phase, Judgment of 18 July 1966, CJReports 1966,
p. 6.
71Compare the practice of the European Court of Human Rights, discussed in Part tt Chapter 3 of this
paper.
71 Chincin, cited at note 6, p. 236.
10Case concerning the Continental Shef'(Tunisia v.Libyan Arab Jamahiriya), Application by Malta for
Permission to Intervene, Judgment of 14 April 1981, tCJ Reports 198 1,p.3,at p.18.
 LANCE BARTHOLOMEUSZ

2. International Tribunal for the Law of the Sea

The International Tribunal for the Law of the Sea (ITLOS) was established in accor-
dance with Annex VI of the UN Convention on the Law of the Sea 1982 (UNCLOS)
and commenced operations in 1996. It is an independent judicial body established by
UNCLOS to adjudicate disputes arising out of the interpretation and application of
L NCLOS and is one of four alternative mechanisms available under the UNCLOS
compulsory dispute settlement system. ITLOS consists of the Tribunal and the Sea-Bed
Disputes Chamber. Its jurisdiction comprises all disputes submitted to it in accordance
with UNCLOS and extends to all matters specifically provided for in any other agree-
ment that confers jurisdiction on it. Unless the parties agree otherwise, the Tribunal's
jurisdiction is mandatory in cases relating to the prompt release of vessels and crews
and to provisional measures pending the constitution of an arbitral tribunal. The
Seabed Disputes Chamber is competent to give advisory opinions on legal questions
arising, amongst other things, within the scope of the activities of the International
Seabed Authority. The Tribunal may also give advisory opinions in certain cases, for
instance, under international agreements related to the purposes of the Convention."
The ITLOS Statute, together with the Rules of the Tribunal passed pursuant to the
Statute, govern the procedure of both the Tribunal and the Chamber, which is com-
posed of ITLOS members and has procedures similar to those of the Tribunal.12 The
Tribunal is responsible, under Article 16 of the ITLOS Statute, to "frame rules for car-
rying out its functions" and, in particular, to "lay down rules of procedure." The
ITLOS Rules were discussed from about 1984 onward in a Special Commission of the
ITLOS Preparatory Commission.
ITLOS procedures for intervention by third parties and amicus curiaeparticipation
are modelled closely on those of the ICJ, discussed above. But there are differences.
And those differences, and the discussions that led to them, are illuminating.
ITLOS has not had any amicus curiae participation in its proceedings as at the time
of writing. So this chapter concentrates on analysing the procedures for third party
access to the Tribunal, comparing this access regime to that of the ICJ, and discussing
the drafting history that led to whatever differences there are. It then examines whether
ITLOS' rules might enable it to pemiit participation in its proceedings by a wider range
of amici curiae,such as NGOs or individuals.

11This overview of the structure of ITLOS is based on "General Information Overview" available on
the ITLOS official web site: http://www itlos.orgistart2 en.html.
12 Statute of the International Tribunal for the Law of the Sea, Annex VI to the United Nations Convention

on the Law of the Sea, 10 December 1982, UN Doc. A!CONF. 62/122, Art. 16 ("ITLOS Statute"); ITLOS,
Rules of the Tribunal, ITLOSi8, adopted on 28 October 1997, as amended to 21 September 2001 (6ITLOS
Rules"). Art. 40 (Applicability ofother sections ofthisAnnex) provides: '61.The other sections ofthisAnnex
which are not incompatible with this section apply to the Chamber. 2. In the exercise of its functions relat-
ing to advisory opinions, the Chamber shall be guided by the provisions of this Annex relating to procedure
before the Tribunal to the extent to which it recognizes them to be applicable."
 THE, MICUS CURIAE BEFORE INTERNATIONAL COURTS AND TRIBUNALS

2.1 General

Before considering the provisions for amicis participation in ITLOS proceedings, we

must consider the context of such participation. As to "access" to the Tribunal, the
ITLOS Statute provides that the Tribunal shall be open to "States Parties" and other
entities "in any case expressly provided for in Part XI or in any case submitted pursuant
to any other agreement conferring jurisdiction on the Tribunal which is accepted by all
the parties to that case."13Access to the Seabed Disputes Chamber is broader than that
of the Tribunal, as that Chamber is "open to the States Parties, the Authority and the
other entities referred to in Part XI, section 5 ."4 For example, juridical persons such
as international consortia and multinational corporations and natural persons can
therefore be parties to disputes before the Seabed Disputes Chamber. The term "States
Parties" is not limited to States that have ratified UNCLOS. Under Article 1(2) of
UNCLOS that term also includes international organizations, and for disputes before
the Seabed Disputes Chamber, entities that are provisional members of the Seabed
5
Authority.1
From the outset, the Tribunal was conceived as being a body oriented towards States.
Discussions about access by entities other than States under the prospective Rules
never contemplated access by NGOs or individuals to Tribunal proceedings. In the
course of the discussions in the Preparatory Commission, the access regime under the
ITLOS Statute was summarized as follows:

In the case of the Tribunal only States Pairtis have the right of access in matters relating to application
and interpretation of [UNCLOS]. This would include international organizations refert-ed to in Annex IX
in cases within their spheres of competence. In enjoying that right, intergovernmental organizations do
so on behalf of and in the place of their Menber States. Other entities only have the right of access to the
s
Sea-Bed Disputes Chamber. Their access is limited to certain kinds ofdispute. 6

States Parties may intervene in ITLOS proceedings in circumstances similar to those

defined by the ICJ Statute. If a State Party considers that it has an "interest of a legal
nature which may be affected by the decision in any dispute", it may seek the Tribunal's
leave to do so. If leave is granted to intervene in contentious proceedings, the
Tribunal's decision binds the intervenor- Parties to agreements the interpretation or
application of which is in question have a right to intervene and, if they do so, the

13 ITLOS Statute, Art. 20.

14 ITLOS Statute, Art. 37.
11"States Parties" has the meaning set out in Art. 1. paragraph 2, of the Convention and includes, for the
purposes of Part XI of the Convention, States and entities which are members of the Authority on a provi-
sional basis in accordance with section 1,paragraph 12, oftheAnnex to the Agreement relating to the imple-
mentation of Part XI.
11Statement b v the Chairian,Preparatory Commission for the International Sea-Bed Authority and for
the International Tribunal for the Law of the Sea, Special Commission 4. Second Session, Doc. No.
LOS/PCN/SCN.4/1984/CRP.4. 4 April 1984, §3. This document and other Preparatory Commission docu-
ments referred to in this part are collected in Platz6der, (ed.), The Law of the Sea: Documents 1983 1989,
New York, Oceana, 1990, Vol. VII.
11ITLOS Statute, Art. 31. The Tribunal decision is binding on the intervenor "in so far as it relates to
matters in respect ofwhich that State Party intervened." This provision is equivalent to ICJ Statute, Art. 62.
 LANCE BARTHOLOMEUSZ

Tribunal's interpretation is binding."t The ICJ Statute gives States similar rights of
intervention, and with similar consequences. 5
Articles 84 and 133 of the ITLOS Rules permit States and international organiza-
tions to participate as ainici curiae in proceedings in the contentious jurisdiction of the
Tribunal and the Seabed Disputes Chamber and the Seabed Disputes Chamber's advi-
sory jurisdictions, respectively. These rules were modelled on Articles 34 and 66 of the
ICJ Statute, discussed above.

2.2 Contentiousproceedings

Both the Tribunal and the Sea-Bed Disputes Chamber have contentious jurisdiction
and, for the present purpose, the procedure is the same. 90 In contentious proceedings,
the Tribunal may request or permit an intergovernmental organization to furnish infor-
mation in written or oral form. The relevant rule, Article 84, provides in full:

1.The Tribunal may, at any time prior to the closurc of the oral proceedings, at the request of a party or
proprio motu, request an appropriate intergovernmental organization to furnish information relevant to
a case before it. The Tribunal, after consulting the chief administrative officer of the organization con-
cerned, shall decide whether such information shall be presented to it orally or in writing and fix the time-
limits for its presentation.
2.When such an intetgovernmental otganization sees fit to furnish, on its own initiative, information rel-
cvant to a case before the Tribmal,it shall do so inthe form of a memorial to be filed in the Registry before
the closure of the written proceedings. The Tribunal may require such information to be supplemented,
either orally or in writing, in the form of answers to any questions which it may see fit to formulate, and
also authorize the parties to comment, either orally or inwriting, on the information thus furnished.
3.Whenever the construction of the constituent instrument of such an intergovernmental organization or
of an international convention adopted thereunder is in question in a case before the Tribunal, the
Registrar shall, on the instructions of the Tribunmal, or of the Prcsident ifthe Tribunal isnot sitting, so notify
the intergovernmental organization concerned and shall communicate to it copies of all the written pro-
ceedings. The Tribunal, or the President if the Tribunal is not sitting, may,as from the date on which the
Registrar has communicated copies of the wrtitn proceedings and after consulting the chief administra-
tive officer of the intergovernmental organization concerned, fix a time-limit within which the organiza-
tion may submit to the Tribunal its observations in writing. These observations shall be communicated
to the parties and may be discussed by them and by the representative of the said organization during the
oral proceedings.
4.Inthe foregoing paragraphs, "intergovemmental organization" means an intergovernmental organiza-
tion other than any organization which isa party or intervenes inthe case concerned.'!

Article 84 is an elaboration and refinement of Article 34(2) and (3) of the ICJ Statute,
as supplemented by Article 69 of the ICJ Rules. Under both Articles, ITLOS and the
ICJ may request an international organization to furnish relevant information. An inter-

ITLOS Statute, Art. 32.

See ICJ Statute, Arts. 62 and 63.
91 ITLOS Rules, Art. 115 provides: "Proceedings in contentious cases before the Seabed Disputes
Chamber and its ad hoc chambers shall, subject to the provisions of the Convention, the Statute and these
Rules relating specifically to the Seabed Disputes Chamber and its ad hoc chambers, be govcrned by the
Rules applicable in contentious cases before the Tribunal."
91According to Art. I (d) of the ITLOS Rules, "international organization" has the meaning set out in
UNCLOS. Anex IX, Art. 1.
 THE AMICUS CURIAE BEFORE INTERNATIONAL COURTS AND TRIBUNALS

national organization may, in turn, provide information relevant to a case. The inter-
national organization has a right to furnish information where the case concerns its con-
stituent instiument. Article 84 is more detailed than Article 34 of the 1CJ Statute
primarily because it elaborates on the modalities for provision and further considera-
tion of international organizations' inforrmiation. Article 84 was drafted based on the fol-
lowing principle stated in 1984 during Preparatory Commission proceedings:

Where participation of intergovernmental organizations in proceedings of the Tribunal and its chambers
is concerned, the Rules of Procedure of the Tribunal should provide such solutions as would ensure on
the one hand, lair and equal treatment of all parties to a given dispute, and on the other hand, the highest
possible standard of efficiency and effectiveness in the proceedings 2

The most striking difference between Article 84 of the ITLOS Rules and Article 34 of
the 1CJ Statute is the nature of the international organization that may submit infor-
mation. As discussed above, the reference in Article 34(2) and (3) of the JCJ Statute
to a "public international organization" could be interpreted as including international
organizations of "mixed" membership and perhaps even international NGOsP 3 There
is no such possibility under Article 84 of the ITLOS Rules, which restricts access to
the Tribunal to "intergovernmental organizations". An initial draft of the rule used the
phrase "public international organization" but stated that the termi "denotes an inter-
national organization of States." 94 When this draft was discussed various alternative
definitions were offered. The consensus was to use the term "international organiza-
tions", but defined as an "international organization constituted by States", with the
exception of international organizations which were "States Parties" to UNCLOS (and
could therefore be a party to, or intervene in, a case). No delegate suggested that the
term should be broadened to include international NGOs9
The drafting history of Article 84 of the ITLOS Rules indicates that, were States
asked in the 1980s whether the term "public international organization" in Article 34(2)

2 Chairman's Summing up of the Discussions, Preparatory Commission fbr the International Sea-Bed

Authority and for the International Tribunal for the Law of the Sea, Special Commission 4,Doc. No.
LOS/PCN/SCN.4/L. 1,10 July 1984, p. 5.These principles are consistent with the overall approach of the
Preparatory Cormnission to preparation ofthe draft rules, which took into account "the available precedents,
such as those of the International Court of Justice and the Court of Justice of the European Economic
Cormnunity [and] any interpretations the Courts had given in the application of their Rules, as well as the
need to ensure that the procedures should be expeditious, not unduly expensive to the parties and should
encourage resort to the International Tribunal for the settlement of disputes.": Draft Rules ofthe Tribunal
(Preparedby the Secretariat):Explanatory Note, Preparatory Commission fbr the International Sea-Bed
Authority and fbr the International Tribunal for the Law of the Sea, Special Commission 4, Doc. No.
LOS/PCNiSCN.4iWP2, 27 July 1984, §2.
11See text accompanying notes 22 to 23.
4 DraftRules of the Tribunal (Preparedby the Secretariaot: EplanatoryNote, cited at note 92, draft

Article 79.
13Compare Preparatory Commission fbr the International Sea-Bed Authority and fbr the International
Tribunal fbr the Law of the Sea, Special Commission 4. Third session, Doc. No. LOS/PCN/SCN.4/L.3.
3April 1985, §§86 89; Doc.No.LOSiPCNiSCN.4i1985iCRP7, 27 March 1985. The redmafted provision
was included in the Secretariat's further revised draft of the Rules: Draft Rules o the Tribunal: Part 1:
Articles 1 to 93 (Preparedby the Secretariat): Lxplanatory Note, Preparatory Commission for the
International Sea-Bed Authority and for the International Tribunal for the Law of the Sea, Special
Commission 4,Doc.No. LOSPCNiSCN.4iWR27Rev. 17Part L,30 June 1986.
 LANCE BARTHOLOMEUSZ

of the ICJ Statute could be read as referring to international NGOs, the answer would
have been: "No".

2.3 Advisoty proceedings

In exercising its advisory jurisdiction, the Seabed Disputes Chamber may request
information from appropriate intergovernmental organizations pursuant to Article
133 of the ITLOS Rules of Procedure:

1.The Registrar shall forthwith give notice of the request fbr an advisory opinion to all States Parties.
2.The Chamber, or its President if the Chamber is not sitting, shall identify the intergovernmental organ-
izations which are likely to be able to furnish information on the question. The Registrar shall give notice
of the request to such organizations.
3.States Parties and the organizations referred to in paragraph 2 shall be invited to present written state-
ments on the question within a time-limit fixed by the Chamber or its President if the Chamber is not sit-
ting. Such statements shall be communicated to States Parties and organizations which have made
written statements. The Chamber, or its President if the Chamber is not sitting, may fix a further time-limit
within which such States Parties and organizations may present written statements on the statements
made.
4.The Chamber, or its President if the Chamber is not sitting, shall decide whether oral proceedings shall
be held and, if so, fix the date for the opening of such proceedings. States Parties and the organizations
referred to in paragraph 2 shall be invited to make oral statements at the proceedings."

Article 133 was consciously inspired by Article 66 of the ICJ Statute.97 From the out-
set there was an important difference: all States Parties were to have a right to make
submissions in advisory proceedings whereas under Article 66 of the ICJ Statute only
States which were called upon as being "likely to be able to furnish information on the
question" had the right to make submissions. Initially some delegations objected to this
departure from the ICJ Statute, arguing that there would be "a danger that the urgency
required for dealing with advisory opinions under UNCLOS could not be assured."0 9
Otherwise the initial draft broadly mirrored Article 66 of the ICJ Statute, for example,
by permitting the invitation of an "international organization" to make submissions."

96 This paper does not discuss the Tribunal's advisory jurisdiction fbr reasons of space and because it
arises only in certain cases under international agreements related to the purposes of UNCLOS.
97 Chairmans Summing up of the Discussions,Preparatory Commission for the International Sea-Bed
Authority and for the International Tribunal fbr the Law of the Sea, Special Commission 4, Doc. No.
LOSiPCNiSCN.4/L.1,10 July 1984, p.6.
91Compare Chairman Summay ofDiscussions on the Draf Rules of the International Tribunalfbr the
Law oft!ie Sea, Preparatory Commission fbr the International Sea-Bed Authority and for the International
Tribunal for the Law of the Sea, Special Commission 4,Doc. No.LOS/PCN/SCN4iL.5,9 April 1986, draft
Article 129.
91Draft Rules of the Tribunal (Preparedby the Secretariat):ExplanatoryNote, Preparatory Commission
for the International Sea-Bed Authority and for the International Tribunal for the Law of the Sea, Special
Commission 4, Doc. No. LOSiPCNiSCN.4/WR2 .27 July 1984, draft article 129. Draft Article 129(2) pro-
vided: "The Registrar shall also, by means of a special and direct communication, notify any international
organization considered by the Chamber oi should it not be sitting, by the President of the Chamber, as likely
to be able to furnish information on the question, that the Chamber 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."
 THE AMICUS CURIAE BEFORE INTERNATIONAL COURTS AND TRIBUNALS

But this changed over time. As adopted, Article 133 of the ITLOS Rules avoids the
ambiguous language ofArticle 66 of the ICJ Statute by replacing "international organ-
ization" with "intergovernmental organization". 00 There is no possibility to argue, for
example, that international environmental NGOs could be permitted to participate in
ITLOS advisory proceedings under the existing Rules.'
Intergovernmental organizations may ask for leave to furnish information in con-
tentious proceedings before the Chamber or the Tribunal. Could they do so in Chamber
advisory proceedings? The answer is probably yes. Article 133 does not clearly per-
mit this, since it is the role of the Chamber or its President to identify and then invite
appropriate intergovernmental organizations. But ITLOS is likely to be guided by ICJ
practice in relation to Article 66 ofthe ICJ Statute; for example, in the PalestinianWall
advisory proceedings, following the application of two international organizations the
ICJ invited them to participate.12
Article 133 is interesting for the entities that are not permitted to participate in advi-
sory proceedings. Although a range of entities, including natural and juridical persons
such as multinational corporations and international consortia, can be parties to dis-
putes before the Chamber, they cannot, unless they are States Parties to UNCLOS or
invited intergovernmental organizations, participate in advisory proceedings. This con-
trasts with the ICJ, where there are broader rights of participation in advisory pro-
ceedings than in contentious ones.

2.4 Concludingremarks

Should ITLOS want to open itself to amicus curiae submissions from entities other
intergovernmental organizations, it has some options which are limited but could con-
ceivably be used.
The Tribunal has the power under its Rules to appoint experts proprio inotu.1 3 But
it is almost inconceivable that the Tribunal would use this provision as a basis for a gen-
eral power to appoint amici curiae.First, that power is intended for the selection of sci-
entific or technical experts under Article 289 of UNCLOS and from particular lists
prepared in accordance with Annex VIII.1°4 Secondly, and perhaps most importantly,
experts appointed in accordance with Article 289 of the Convention take part in the
Tribunal's judicial deliberations. 15 It is unlikely that the States Parties to UNCLOS

!00In the Final Drafl Rules of the Tribunal, the equivalent ofArt. 133, draft Article 141, retained the term
"international organization" but this was changed prior to adoption of the Rules: compare Preparatory
Commission fbr the International Sea-Bed Authority and fbr the International Tribunal for the Law of the
Sea, Special Commission 4, Doc. No.LOS/PCN/SCN.4/WP 16/Add. 1, 19 January 1994.
101Compare Beyerlin, "The Role ofNGOs in International Enviromnental Litigation".ZeitschriftJir aus-
londisches ffentliches Recht und VIlkerrecht, Vol. 61, 2001, pp. 357 378, at p.358.
102 See text accompanying note 48.
ITLOS Rules, Art. 15.
H0
101It is possible that States could nominate experts on the basis of their competence in legal aspects of
one of the tour fields of expertise, for example, fisheries: compare Annex VIt, Art. 2(3). But States Parties
can only nominate two experts.
10 ITLOS Rules, Art. 42.
 LANCE BARTHOLOMEUSZ

are ready for NGO representatives to help decide disputes, let alone participate in a
limited capacity as amici curiae.
The Tribunal apparently has no power to call witnesses proprio motu. So, even to
the extent that witnesses' functions could sometimes overlap with those of amici
curiae,this option is unavailable to the Tribunal.
Under Article 82 of its Rules, ITLOS also has a broad power, if it considers neces-
sary, "to arrange for an inquiry or an expert opinion" and it may issue an appropriate
order after hearing the parties on the issue. 01 6 This provision is based on Article 50 of
the ICJ Statute, which provides: "The Court may, at any time, entrust any individual,
body, bureau, commission, or other organization that it may select, with the task of car-
rying out an enquiry or giving an expert opinion." In principle, Article 82 of the ITLOS
Rules could permit it to appoint an individual or NGO as amicus curiae,after due con-
sideration of the disputing parties' views. But it is unlikely that ITLOS will do so in
the near future. First, its Rules have been guided closely by ICJ procedure and prac-
tice, and the ICJ has never used Article 50 of its Statute to appoint an amicus curiae,
so ITLOS is unlikely to take the lead. Secondly, and more broadly, considering that
UNCLOS was such a carefully negotiated and complex treaty, the Tribunal may well
be reluctant to permit access to entities not specifically contemplated in the
Convention. (States have made similar comments in relation to participation in WTO
proceedings.) Further, under Article 49 of the ITLOS Rules, Tribunal proceedings
"shall be conducted without unnecessary delay or expense". And the Tribunal's recent
caseload has consisted mainly of urgent proceedings such as requests for prompt
release of vessels or for provisional measures. NGO participation in such proceedings
may well be inconsistent with Article 49.
On the other hand, should ITLOS acquire a considerably larger, more diverse, and
more politically sensitive caseload, the Tribunal might find amici curiae other than
States and intergovernmental organizations of some assistance.
Could ITLOS change its Rules to allow greater participation in Chamber advisory
proceedings? Until the Chamber is operative the question is moot. But should the
Chamber become operational, since its jurisdiction concerns the deep seabed - "the
common heritage of mankind" - it is likely that there will be pressure from interna-
tional environmental NGOs to participate in Chamber proceedings, as they brought to
bear in WTO, NAFTA and ICSID proceedings and as they have attempted to do
before the ICJ. As with the question of expansion of participation in ITLOS' con-
tentious jurisdiction, there will be powerful considerations against doing so.

3. European Court of Human Rights

The European Court of Human Rights ("ECHR") was established by the 1950
Convention for the Protection of Human Rights and Fundamental Freedoms ("the

"I ITLOS Rules, Art. 82.

 THE AMICUS CURIAE BEFORE INTERNATIONAL COURTS AND TRIBUNALS

Convention") and set up in 1959.1 7 Since 1 No vember 1998,08 the ECHR has been a
full-time court with compulsory jurisdiction over applications that allege a breach by
a Contracting State of one or several Convention rights and that may be submitted
directly to it by Contracting States and by individuals (including groups of individu-
als and NGOs). 0 9 The Court is composed of a number of judges equal to that of the
Contracting States, currently 45. The Court sits as both a Grand Chamber and in
smaller formations such as Chambers.
Nineteen ninety-eight marked a fundamental change in the ECHR's role under the
Convention, and the role of the individual before it.
Before 1998, recognition of the right of individual application was optional and that
right could be exercised only against those States which had accepted it. Before the
(part-time) Court could hear an application, it had to be first considered by the
European Commission of Human Rights. (The Commission was abolished on I Nov-
ember 1998, subject to transitional arrangements.) The Commission determined the
complaint's admissibility. If the complaint were adnissible, and the Commission was
unable to broker a friendly settlement, it drew up a report establishing the facts and
expressing an opinion on the merits. The report was then transmitted to the Committee
of Ministers."' Where the respondent State had accepted the Court's compulsory
jurisdiction, the Commission and any Contracting State concerned had three months
following the report's transmission to bring the case before the Court for a final and
binding adjudication. Individuals were not entitled to bring their cases before the
Court.,,,
Some scholars have considered the evolving role of the individual in the
Convention's supervisory and enforcement mechanisms prior to 1998, including their
participation as amici c.uriae." 2 Considering this scholarship, and the fundamental

!I' The information in the following paragraphs about the background, organization and procedure of
the ECHR is taken from: "The Europcan Court of Human Rights: Historical Background, Organisation
and Procedure". information document issued by the Registrar of the European Court of Human
Rights, September 2003, available at http:/www.echr.coe.int/ECHR!ENiHeaderiThe+Cout!
The+Court/Other+Languages/.
!I' On 1 Novembcr 1998 Protocol No. 11 came into force and amended the Convention.
109 Contracting State applications underArticle 33 of the Convention are rare. Individual applications are
made pursuant to Article 34 ofthc Convention: "The Court may receive applications from any person, non-
governmental organisation or group of individuals claiming to be the victim ofa violation by one ofthc High
Contracting Parties of the rights set fi th in the Convention or the protocols thereto. The High Contracting
Parties undertake not to hinder in any way thc cffectivc exercise of this right."
Tc Committce is composed of the Ministers of Foreign Affairs of the mcmber States or their rcpre-
Th0
sentatives.
11 See information documcnt cited atnote 107: "Ifa case was not rcfcrrcd to the Court, the Committcc
of Ministers decided whethcr there had been aviolation of the Convcntion and,if appropiatc, awardcd 'just
satisfaction' to the victim. The Committee ofMinisters also had responsibility for supervising the execu-
tion of thc Court's judgments." On 1 November 1998 thc Committec of Ministers' adjudicativc role was
abolished.
112 See in particular: Brownlie, cited note 26, pp. 713 716; Shelton, cited at note 2,at pp. 630-638;
Asccncio, cited at note 22, atpp. 901 902; and Razzaquc, cited note 3, atpp. 180 184.
 LANCE BARTHOLOMEUSZ

changes in 1998 to the Court's role and that of the individual before it, this paper only
considers in detail the Court's practice following November 1998.
Since 1998 the ECHR has had broad discretion under Article 36 of the Convention
to permit third party-intervention in its proceedings. Article 36 of the Convention
provides:

1. In all cases before a Chamber or the Grand Chamber, a High Contracting Party one of whose nationals
is an applicant shall have the right to submit written comments and to take part in hearings.
2 The President of the Court may, in the interest of the proper administration ofjustice, invite any High
Contracting Party which is not a party to the proceedings or any person concerned who is not the appli-
cant to submit written comments or talke part in hearings.

Article 36(2) was introduced into the Convention on 1November 1998, when Protocol
No. II came into force. 113The origin ofArticle 36(2) of the Convention (and of the cor-
responding provision in Protocol No. 11) is Article 37(2) of the Court's Rules of
Procedure, as amended on 1 January 1983. Following proceedings in which the
Court permitted for the first time a third party (a British trade union) to participate
in oral argument, ' 14 the Court amended Article 37(2) explicitly to permit third-party
interventions:

The President may, in the interest of the proper administration of justice, invite or grant leave to any
Contracting State which is not aparty to the proceedings to submit writen comments within a time-limit
and on issues which he shall specify. He may also extend such an invitation or grant leave to any person
concerned other than the applicant.

The provision in the ECHR Rules of Court that deals with amicus curiae participation
is now Rule 44 (Third-party intervention). It amplifies Article 36 ofthe Convention by
prescribing, amongst other things: time-limits for notices and applications; the form
of requests for leave to participate; consequences of non-compliance with conditions
imposed in granting leave to participate; and entitlement of the parties to respond. As
amended by the Court on 7 July 2003, Rule 44 provides:

I. (a)When notice of an application lodged underArtide 34 of the Convention is given to the respondent
Contracting Party under Rule 54 §2 (b), a copy of the application shall at the same time be transmitted
by the Registrar to any other Contracting Party one of whose nationals is an applicant in the case. The
Registrar shall similarly notify any such Contracting Party of a decision to hold an oral hearing in the case.
(b) It a Contracting Party wishes to exercise its right under Article 36 §1 of the Convention to submit
written comments or to take part in ahearing, it shall so advise the Registrar in writing not later than twelve
weeks after the transmission or notification refened to in the preceding sub-paragraph. Another time limit
may be fixed by the President of the Chamber fbr exceptional reasons.
2. (a)Once notice of an application has been given to the respondent Contracting Party under Rule 51 §
I or Rule 54 § 2 (b), the President of the Chamber may, in the interests of the proper administration of
justice, as provided in Article 36 §2 of the Convcntion, invite, or grant leave to, any Contracting Party
which is not a party to the proceedings, or any person concerned who is not the applicant, to submit writ-
ten comments or, in exceptional cases, to talce part in a hearing.

I Protocol No. 11 to the Convention fbr the Protection of Human Rights and Fundamental Freedoms,
restructuring the control machinery established thereby ETS No. 155, 11May 1994 ("Protocol 11 ").
14 Young, Jrmes rid tfiester v. UitedKingdom, 44 Eur. Ct. H.R. (ser. A) (1981).
 THE AMICUS CURIAE BEFORE INTERNATIONAL COURTS AND TRIBUNALS

(b) Requcsts for leave for this purpose must be duly reasoned and submitted in writing in one of the
official languages as provided in Rule 34 §4 not later than twelve weeks after notice of the application
has been given to the respondent Conttacting Part. Another time limit may be fixed by the President of
the Chamber for exceptional reasons.
3. (a) In cases to be considered by the Grand Chamber the periods of time prescribed in the preceding para-
graphs shall ron from the notification to the parties of the decision of the Chamber under Rule 72 § I to
relinquish jurisdiction in favour of the Grand Chamber or of the dcision of the panel of the Grand
Chamber under Rule 73 §2 to accept a request by a party for referral of the case to the Grand Chamber.
(b) The time-limits laid down in this Rule may exceptionally be extended by the President of the
Chamber if sufficient cause is shown.
4. Any invitation or grant of leave referred to in paragraph 2 (a) of this Rule shall be subject to any con-
ditions, including time-limits, set by the President of the Chamber. Where such conditions are not com-
plied with, the President may decide not to include the comments in the case file or to limit participation
in the hearing to the extent that he or she considers appropriate.
5. Written comments submitted under this Rule shall be drafted in one of the official languages as pro-
vided in Rule 34 §4. They shall be forwarded by the Registrar to the parties to the case, who shall be enti-
tled, subject to any conditions, including time-limits, set by the President of the Chamber, to file written
observations in reply ot, where appropriate, to reply at the hearing.

Rule 44 is located in Chapter I "General Rules" of Title 11 "Procedure". Prior to 7 July

2003, the text of Rule 44 was substantially contained in Rule 61 of the Rules of Court,
which was found in Chapter V "Proceedings after the Admission of an Application".' 1
In moving the provision into the chapter dealing with "General Rules", the Court has
highlighted the rule's general applicability, including perhaps its general temporal
applicability. Consistent with the Court's ongoing re-examination of its procedures
with a view to addressing its crushing caseload,' 16the differences between Rule 44 and
onner Rule 61 relate mainly to time; the Court has now stipulated a range of time-lim-
its for issuing and submitting the relevant notices, applications and written comments.
In practice, to what extent has the Court permitted, under Article 36(2) of the
Convention, third-party intervention by non-State actors? And what does the Court's
contemporary practice reveal about the classes of third parties welcomed by the court
and the reasons for such a welcome?
From I November 1998 until 31 December 2004, the Grand Chamber and other
bodies delivered some 4,000 decisions and judgments in relation to over 4,300 appli-
cations.1 Over the period from I November 1998 to 31 March 2005, the Court heard,
and delivered judgment in 35 applications in which third parties participated pursuant
to Article 36(2). 11Additionally, in relation to one application a third party had sought,
and been refused, leave to intervene. I i These figures indicate that while the ECHR has
a fairly substantial arnicus practice in absolute terms, relatively speaking, amici curiae
have participated in less than one per cent of the ECHR's proceedings since
1 November 1998.

European Court ofHuman Rights, Rules of Court, Strasbourg 1999, as in force at 1 Novcmber 1998.
As at I May 2005, some 80,000 applications were pending: see ECHR, Staitics: I Januari -3OApril
2005, available at http:/iwww.cchr.coc.intECHRiEN/Headcr/Reports+and+StatisticsiStatisticsi
Statistical+Tables/.
ECHR, Survey ofActivities, 1999 2004.
All mpublished ECHR cases referred to in this Chapter arc available online using HUDOC, which is
accessible through the ECHR wcbsitc: http:/xwww.cchr.coc.itt.
11'Hutten-Czapska v. Poland,no. 35014/97, Judgment, Fourth Section, 22 February 2005.
 LANCE BARTHOLOMEUSZ

So amici curiae intervene in ECHR proceedings relatively frequently in absolute

terms, but in about 99 per cent of case dealt with by the Grand Chamber and Sections
they do not participate and, apparently, do not seek to participate. Why might this be
so? First, because ofthe Court's huge caseload and its practices to address it, those pro-
ceedings heard by a Grand Chamber or Section are likely to involve the kind of
important legal issues or serious consequences that make it appropriate for third-party
participation. Secondly, for those familiar with the Court's practice, it is probably clear
when applications for third-party intervention are likely to be successful. If this is cor-
rect, the low number of refused requests for intervention might be explained on the
basis that, if a request has little likelihood of success, it is unlikely to be made at all.
The Court's contemporary practice indicates that there are three main classes of per-
son whose intervention is often welcomed by the Court: (a) Persons other than the
applicant with a clear interest in the domestic proceedings to which an application
before the ECHR relates; (b) Entities, groups or individuals with relevant specialist
legal expertise or factual knowledge; (c) Industry interest groups with views closely
aligned to the applicant. These classes shall be separately addressed below.

a) Persons other than the applicantwith a clear interest in the domesticproceedings

to which an applicationbefore the ECHR relates.The nature of the interest can be
direct, for example that of a party to proceedings out of which the ECHR applica-
tion arises, or less direct, for example where the ECHR proceedings relate to crim-
inal proceedings, the victim or the victim's family. The main purpose of permitting
such intervention seems to be to give such third parties an opportunity to be heard
before the Court issues a judgment that could affect their legal interests. The foi-
lowing proceedings after 1 November 1998 fall within this category:

" Where the applicant's complaint related to defamation proceedings brought

against him by a Slovak Minister, the plaintiff Minister was permitted to intervene
2
in the written procedure;1 0

" Where the applicant, Princess Caroline of Monaco, complained about photos
published by a German magazine publisher, the publisher was pemlitted to inter-
2
vene in the written procedure;
" Where Italian applicants brought an application relating to proceedings in
Romania for the adoption of two orphan girls whom they wanted to take with
them from Romania, the Court permitted the intervention in the written and oral
proceedings of officials associated with the Romanian educational institution
in whose care the orphan girls had been placed initially, and the orphan's legal
22
representatives.1
" An application by eight UK nationals concerned night noise levels at Heathrow
Airport, near London. British Airways, the primary user ofHeathrow Airport, was
permitted to make written submissions. Its submissions, which dealt with the
commercial significance of, and need for, night flights, were referred to in both

121 Feldekv. Slovak,a no. 29032/95, Judgment, Chamnber (Second Section), 12 July2001.
12 ion Hannover v. Ge.any, no. 59320/00, Chamber (Third Section), Judgment, 24 Juane 2004.
122 Pini, Bertani, Vanera andAtripaldiv. Rounmania, nos 78028/01 and 78030/01, Judgment, Chamber
(Second Section), 22 June 2004.
 THE A4MCUS CURIAE BEFORE INTERNATIONAL COURTS AND TRIBUNALS 237

the Court's judgment and in the dissenting opinion of the ad hoc judge, Sir Brian
Kerr.123
" The applicant was an Ivory Coast national who had been adopted by a French
national. The application related to the refusal of France to award him an
allowance for disabled adults, notwithstanding his connection to France through
his adoptive father. With the Court's leave, the applicant's father made written
24
legal submissions.
" The ten Turkish applicants lived in an area where a company had been granted
permission to operate a gold mine. They had brought proceedings to have the
company's permit annulled. The ECHR permitted the company to make written
submissions. These submissions related only to factual issues. The intervenor was
a company whose interests would be affected by the ECHR's decision because
it had been granted permits to operate the gold mine. The applicants had alleged,
amongst other things, that the operating permits issued for the gold mine and
the related decision-making process had violated Articles 2 and 8 of the
Convention. 125
" An applicant alleged that restrictions on French nationals (such as himself) vot-
ing in elections in New Caledonia violated the right to free elections guaranteed
by Article 3 of Protocol No. 1 and discriminated on the basis of nationality in vio-
lation ofArticle 14 of the Convention. The intervenors were New Caledonia res-
idents who, it seems, were also deprived of the right to vote in the same elections.
26
With pemrission, they made written legal submissions to the Court.
" The parents of the child who had been murdered by the applicant were permit-
27
ted to make written and oral submissions to the Court.'
" A victim's father who had been joined as apartiecivile to criminal proceedings
instituted in France against the German applicant was permitted to make written
2
comments. 1
b) Entities, groups or individuals with relevant specialist legal expertise or factual
knowledge. Sometimes legal submissions are made by advocates of a certain posi-
tion. Other times the amicus is more neutral and objective. Some NGOs, for exam-
ple, Liberty, have clearly demonstrated their usefulness to the Court and have
successfully intervened several times. The following proceedings after 1 November
129
1998 involve participation within this category:

23 Hatton and Others v. UnitedKingdom, no. 36022.97, Judgment, Chamber (Third Section), 2 October
2001.
121 Koua Poirrezv. France,no. 40892/98, Judgment, Chamber (Second Section), 30 September 2003.
125 Tqici and Othersv. Turkey, no. 46117/99, Judgment, Chanber (Third Section), 10 November 2004.
2 py v. France,no. 66289/01, Judgment, Chamber (Former Second Section), 11 January 2005.
121 T v. UnitedKingdom, no. 24724/94, Judgment, Grand Chanber, 16 December 1999.
12s Krombach v. France,no. 29731 /96, Judgment, Chamber (Third Section), 13 February 2001.

!29In addition to the cases sumrmaized in the tcxt, entities, groups or individuals with relevant special-
ist legal expertise or factual know ledge participated in the followa ing proceedings: Justice, an NGO
(Tv. UnitedKingdom, no. 24724/94, Judgment, Grand Chamber, 16 December 1999); the European Roma
Rights Centre (Chapman.Beard, CosterandLeev. n.itedKingdom, nos 27238/95, 24882/94, 24876/94 and
25289/94, Judgments, Grand Chamber, 18 January 2001); Professor G. Van Bucren, Director of the
Programme on International Rights of the Child, University of London (Z. and Others v. United Kingdom,
no. 29392/95, Judgment, Grand Chamber, 10 May 2001).
 LANCE BARTHOLOMEUSZ

" The Court granted leave to the Center for Justice and International Law, a non-
governmental human rights organisation in the Americas, to submit written com-
ments relating to the jurisprudence of the Inter-American Court of Human Rights
on the issue of forced disappearances.'30
" Liberty, an NGO that has appeared several times before the ECHR, submitted a
detailed written report on the legal recognition of transsexuals in comparative
law. The report supplemented one previously given to the ECHR. The Court not
only gave a detailed summary of Liberty's report, it also expressly referred to it
in reaching its assessment of violations of Articles 8 and 12 of the Convention.31
" In proceedings concerning the difference in treatment of homosexuals as regards
succession to tenancies under Austrian law, the Court permitted three NGOs to
intervene in writing and in the oral proceedings. These NGOs were represented
by one person, and it seems that their submissions were at least coordinated, and
perhaps joint. One NGO, Liberty, had appeared several times before the ECHR.
The other two NGOs, ILGA-Europe (The European Region of the International
Lesbian and Gay Association) and Stonewall, had particular expertise in issues
relating to discrimination on the basis of sexual orientation, to which these pro-
ceedings related. The Court stated that the intervention of these NGOs in the pro-
ceedings as third parties was authorised "as it highlights the general importance
32
of the issue" in the territories of all Contracting Parties.
" In an application arising out of an incident relating to Northern Ireland, the
Court permitted the Northern Ireland Human Rights Commission to provide writ-
ten comments about the form which investigations into the use of lethal force by
State agents should take. 33
" The four Turkish national applicants were former members of the Turkish
National Assembly and of the Democracy Party, which was dissolved by the
Constitutional Court in June 1994. Their parliamentary immunity was lifted and
they were convicted by a National Security Court of belonging to an amed gang
formed with the intention of committing offences related to the integrity of the
State. The applicants submitted for their part that the criminal proceedings had
been brought for a political purpose, namely, to suppress the opinions of mem-
bers of Parliament defending the Kurdish cause. The Inter-Parliamentary Union
(IPU) was permitted to intervene in writing and the Government of Turkey
responded to its comments. The Court made several references to the IPU's sub-
missions and views.1' 4 In subsequent proceedings the Court permitted written
submissions from an NGO, Interights (The International Centre for the Legal
Protection of Human Rights).'35

1 Tm urtay,v.Turkey,no. 23531/94, Judgment, Chamber (First Section), 13 June 2000.

3 . and Goodwinv. UnitedKingdom,nos 25680/94 and 28957/95,Judgments, Grand Chamber, 11 July
2002.
12 Karner v.Austria,no. 40016/98, Judgment, Chamber (First Section), 24 July 2003, §27.
1 Jordan v.United Kingdom, no.24746/94, Judgment, Chamber (Third Section), 4 May 2001.
'31 Sadak and Others v.Turk-ey (No. 1), nos 29900/96, 29901 /96, 29902/96 and 29903/96, Judgment,
Chamber (First Section), 17 July 2001.
131 Sadak and Othe s v.Turkey (No. 2). nos 25144/94, 26149/95 to26154/95, 27100/95 and 27101/95,
Judgment,Chamber (Fourth Section), II June 2002.
 THE AMICUS CURIAE BEFORE INTERNATIONAL COURTS AND TRIBUNALS

" In an application relating to adoption proceedings in Romania, the Court per-

mitted the intervention of a Special Rapporteur to the European Parliament who
had considered Romania's application for membership of the European Union
and had particular knowledge of Romanian adoption practice.3'
" In a case that raised issues of euthanasia and assisted death, the Court permitted
written submissions by two British organizations that held different views about
these issues: the Voluntary Euthanasia Society and the Catholic Bishops'
Conference of England and Wales. The Court referred in detail to the views and
information provided by them.37
" In one case where an issue was the legal status of a child in utero, the Court
granted leave to intervene in writing to two prominent NGOs concerned with
such issues. Both NGOs submitted arguments in support of the view that a foe-
tus should not be treated as a person for the purposes of Article 2 of the
Convention. One NGO based in the United States of America, the Center for
Reproductive Rights, presented a comparative study of case-law and legislation
in Europe, Canada and the USA. The Court set out a substantial summary of this
NGO's report. The other NGO made submissions about the legal position in the
member States of the Council of Europe, referred to recent studies, and analyzed
in-depth the legal position in the United Kingdom.3 '
" The applicants were two Uzbek opposition politicians accused of terrorist attacks
directed against the Uzbek President. Their application concerned their extradi-
tion, in breach of interim orders by the ECHR, from Turkey to Uzbekistan in rela-
tion to those accusations. The applicants alleged violations of Aiticles 2, 3 and 6
of the Convention and of Rule 39 of the Rules of Court. The Court let intervene
in writing a number of prominent NGOs with specialist experience in human
rights and particular knowledge of conditions in Uzbekistan: Human Rights
Watch (HRW), the International Commission of Jurists and the AIRE Centre.
HRW had followed the applicants' trial in Uzbekistan following their extradition
there. Although Amnesty International did not intervene, the Court referred to
substantial passages about Uzbekistan in two of Amnesty's reports.'3 9
" In one case an international organization with specialist background factual
knowledge, the Organisation for Security and Cooperation in Europe (OSCE),
was granted leave to intervene in writing. The applicant's flat in Zadak, Croatia,
was subject of a specially protected tenancy. In the summer of 1991 she departed
temporarily to Rome. Subsequently, amied conflict broke out in the area and third
persons broke into her flat and occupied it. The Croatian courts then ordered that
the applicant's specially protected tenancy be termiinated. The applicant appealed.
The OSCE provided a detailed analysis of the nature and number of mass termi-
nations of specially protected persons in Croatia. The OSCE also submitted a
detailed analysis of the legal status accorded to specially protected tenancies in

16 Pin, Bertani., lanera and Atripaldi v. Rownania, cited at note 122.

131 Pretty v. United Kingdom, no. 2346/02, Judgment, Chamber (Fourth Section), 29 April 2002.
"' Vo v. France,no. 53924/00, Grand Chamber, Judgment, 8 July 2004, §§60 73.
Mamatkulov
li and Askarov v. Turkey, nos 46827/99 and 46951/99, Grand Chamber, Judgment,
4 February 2005.
 LANCE BARTHOLOMEUSZ

Bosnia and Herzegovina. The respondent Government submitted detailed com-

40
ments on the intervenor's submissions.
c) Industry interest groups with views closely aligned to the applicant were also
welcomed in the following proceedings:
" Where an application by two Danishjournalists concerned criminal proceedings
against them in Danish Courts in relation to a documentary film they had made,
the Court permitted a concerned interest group to intervene in writing, the Danish
Union of Journalists. The intervenor made legal submissions about the scope of
the guarantee of freedom of expression under the Convention and submissions
about the quality of the journalists' investigations in the process of preparing the
141
filn.
" Where the applicant, Princess Caroline of Monaco, complained about photos
published by a German magazine publisher, the Court permitted the Association
of German Magazine Publishers to submit written comments.142
As to the form and content of amicus curiaeparticipation, ECHR practice indicates that
the ECHR is content to receive submissions on legal issues within the judges' core
competence, that is, international human rights law. Participation is usually limited to
written submissions. The Court sometimes permits oral participation where such par-
ticipation might be particularly useful in addition to the written submissions. 43 Of the
35 proceedings that the Court heard, and delivered judgment in, between 1November
1998 to 31 March 2005, and in which third parties intervened, the Court only permit-
ted amici to participate in three hearings.144The Court's Rules do not prescribe any par-
ticular page length for either requests for leave to intervene or for the written
submissions themselves. In granting leave, the Court is entitled to limit the length of
the written submissions. The Court has attempted to ensure that amicus participation
does not unduly delay its proceedings by prescribing time-limits for receiving the
requests and any subsequent submissions.
Amici have no right, as such, to be heard by the Court. They can only make sub-
missions with the Court's leave. It has been asked in the context of WTO proceedings
whether, after granting permission to an amicus to make written submissions, the Court
has a duty to take into account the amicus views. For the ECHR this question seems
moot. The ECHR usually refers in its reasons for judgment to the fact of amicus par-
ticipation and summarizes the amicus' submissions. It is difficult to imagine that a busy
Court would permit amicus participation while contemplating that it was under no duty
to even consider the resulting submissions.
The parties also have the right to respond to any amicus submissions.

"I Bleji( v. Croatia,no. 59532/00, Chamber (First Section), Judgment, 29 July 2004.
141 Pedersen andBaadsgaardv.Denmark,no. 9017/99, Grand Chanber, Judgment, 17 Decenber 2004.
142 vont annover v. Germany, cited at note 121.
141 Compare Karner v. Austria, cited at note 132, §27.
144 Karner v. Austria, cited at note 132; v. UnitedKingdom, cited at note 127; Pn, Bertani.Alanera
andAtripaldiv. Roumania, cited at note 122.
 THE AMICUS CURIAE BEFORE INTERNATIONAL COURTS AND TRIBUNALS

In the course of its proceedings the ECHR has had occasion to comment on the
juridical nature of the amici curiae that appear before it. 4 The Court has made clear
that an amicus curiae is not a party to the proceedings. Therefore, for example, unlike
an applicant, an intervenor is not entitled to an award of damages under Article 41 of
the Convention. 146 Further, the Court has explicitly said that public interest groups' par-
ticipation can "highlight the general importance of the issue" in the territories of all
Contracting Parties. 147

Concluding remarks

As well as having specific provisions for amicus participation in the Convention

establishing it, the ECHR has demonstrated itself in practice to be particularly recep-
tive to amicus participation. ECHR permits amici curiae to participate for two primary
reasons. First this participation gives a measure of due process to persons whose legal
interests are likely to be affected because of their involvement in the proceedings out
of which the ECHR application arises. Secondly, the participation of public interest
groups positively contributes to the ECHR's judgments on important issues. Why else
would the Court continue to permit such participation in the face of an enormous
caseload?
ECHR practice indicates that the floodgates argument is not of itself a good reason
to limit or deny access to amici curiae. The ECHR appears to have effectively man-
aged amici participation. Although international courts and tribunals will always have
human and financial resources problems, and anicasparticipation not only takes the
Court's time but can increase the parties' costs, public interest groups have demon-
strated that they can make an effective contribution. A good example is the detailed
comparative legal studies that have been submitted by NGOs such as Liberty. These
studies saved the time of ECHR judges and staff, who would have taken considerable
time to conduct similar analyses. And considering the extent to which the ECHR
referred to such reports in their reasons for judgment, it is obvious that such studies
contributed to the quality of the judgment.
ECHR experience indicates that over time, and with a commitment from the Court
and its amici, a beneficial relationship can develop. NGOs have undoubtedly worked
hard to gain the Court's confidence. Repeat NGO participants have had to demonstrate
their thoroughness and even-handedness. And cooperation in making submissions in
particular cases has made the Court's task easier. It might also be that, as Ascensio sug-
gests, because the ECHR is a body in which individuals and NGOs can have locus
standi as parties, it is more receptive to their participation as amici curiae than more
State-oriented courts such as the ICJ.148

145In the course of deciding on some applications, the ECHR has also commented briefly about the role
of amnici curiae in Council of Europe nicnbers' doncstic jurisdictions, for example, the Deputy Attornev-
General in Portugal and the Procureur G&n&ral in Belgium: see Lobo Machado v. Portugal(1996 ECHR);
fermulen v. Belgium (1996 ECHR), discussed in Razzaque, cited note 3, at p. 17 1.
4, Koua Poirrezv. France,cited at note 124, §§68 69.
Karnerv. Austria, cited at note 132, §27.
141 Ascencio, cited at note 22, at p. 90 1.
 LANCE BARTHOLOMEUSZ

4. International Criminal Courts and Tribunals

4.1 InternationalCriminalCourt

The International Criminal Court (ICC) is the first ever permanent, treaty-based inter-
national criminal court. It was established by the Rome Statute of the International
Criminal Court of 1998, which came into force on 1July 2002.149 The ICC's Rules of
Evidence and Procedure explicitly provide for the use of amici curiae at trial and on
appeal.10 Rule 103 ('Amicus curiae and other forms of submission') provides:

1.At any stage of the proceedings, a Chanber may,ifit considers it desirable for the proper deterina-
tion of the case, invite or grant leave to a State, organization or person to submit, in writing or orally, any
observation on any issue thatthe Chmnber deems appropriate.
2.The Prosecutor and the defence shall have the opportunity to respond to the observations submitted
under sub-rule I.
3.A written observation submitted under sub-rule I shall be filed with the Registrar, who shall provide
copies to the Prosecutor and the defence.The Chamber shall determine what time limits shall
apply to
the filing of such observations.

Under Rule 149, this applies 'mutatis mutandis to proceedings in the Appeals
Chamber'.
Rule 103 is a broad discretionary power either to invite or,in the case of spontaneous
submissions, to grant leave to, amici curiaeto submit their observations. Competence
to submit observations is not limited: "States, organizations and persons" may be
invited or may apply for leave to submit observations. "Organizations" is not qualified,
clearly leaving the door open to NGOs and mixed-membership organizations as well
as public intergovemmental organizations.51 "Persons" is also not qualified by either
the adjectives "natural" or "legal", leaving it to the Court to invite or accept submis-
sions from individuals and corporations or other legal persons. The only criterion for
inviting or granting leave to submit observations is whether the Court considers it
"desirable for the proper determination of the case". The range of issues upon which
observations may be invited or accepted can be legal or factual and is entirely in the
Court's discretion what it "deems appropriate".
Observations may be made either in writing or orally. But the Court will no doubt
specify which when it exercises discretion to invite or grant leave to an am icus curiae
to submit observations and when it sets time-limits for filing. The prosecution and
defence have a right to respond to the observations.

149Rome Statute of the International Criminal Court 1998, United Nations Diplomatic Conference of
Plenipotentiaries on the Establishment of an International Criminal Court, UN Doc.No.A/CONF 183/9,
17 July 1998.
151Rules of Procedure and Evidence, Official Records oftheAssembly of the States Parties, 1st session,
3 10 September 2002, Doc.No.ICC-ASP/1/3 (part I-A), 9 September 2002.
" Compare Human Rights Watch, The InternationalCriminal Court: How Nongovernmental
Ofganizations can Contribuie to the Prosecution o/ ar Criminals, September 2004.
 THE AMICUS CURIAE BEFORE INTERNATIONAL COURTS AND TRIBUNALS

Rule 103 is substantially similar to Rule 74 of the ICTY and ICTR Rules, although
it emphasizes that amicus participation may be appropriate at any stage of the
proceedings.
At the time of writing the ICC had not yet conducted any trial or appellate pro-
ceedings and therefore has had no amicus curiae experience of its own. The ICC's
practice under Rule 103 will undoubtedly be informed by the practice of the ad hoc
international criminal jurisdictions under their equivalent provisions. Accordingly, we
turn now to examine the practice and procedure relating to amici curiae before the
ICTY, ICTR, and the Special Court for Sierra Leone.

4.2 InternationalCriminalTribunalfor the Former Yugoslavia (/CTY) and

International Criminal TribunalforRwanda (ICTR)

Since adoption of its Rules on 11 February 1994, the ICTY has had the explicit power
to appoint amici curiae. Rule 74 ('Amicus curiae') provides:

A Chamber may,ifit considers it desirable for the proper determination of the case, invite or grant leave
to a State, organization or person to appear before it and make submissions on any issue specified by the
Chamber152

The ICTR follows an identical rule: Rule 74.53 Although the ICTY and ICTR Rules
have been amended numerous times since their adoption, Rule 74 has not been
changed.
The ICTY and ICTR have often used their power to appoint amici curiae, in par-
ticular: in deferral proceedings; where significant issues of international law are
involved at trial or on appeal; and to ensure a fair trial, for example where the accused
represents himself. There has also been some amicus curiaeinvolvement in procedures
in case of failure to execute a warrant. 14 Following consideration of the proceedings
in which amici curiae have participated (A), this paper shall consider the tribunal's
indications about the nature of amici curiae in the course of these proceedings (B).

A. Proceedings in which amicus curiae participate

Amici curiae and Rule 10 deferralproceedings

The ICTY and ICTR have often bormally requested a State that its courts defer to the
competence of the Tribunal' 5s It has been common practice for the State concerned to

112ICTY, Rules of Procedure and Evidence, IT/32iRev. 34, adopted II February 1994, as amended on
11 February 2005 ("ICTY Rules"). See also ICTY Registry, Information concernig the submission o/
amicus curiae brief , IT122, 27 March 1997, which elaborates on this rule. The applicant is required to
provide a range of information.
151ICTR, Rules of Procedure and Evidence, adopted 29 June 1995,as amended to 21 May 2005 ("ICTR
Rules").
!I' ICTY Rules, Rule 61; ICTR Rules, Rule 61.
155ICTY Rules, Rule 10 and ICTR Rules, Rule 10. ICTY Rule 10(A) provides: "(A) Ifit appears to the
Trial Chamber seised of a proposal for deferral that, on any of the grounds specified in Rule 9, deferral is
appropriate, the Trial Chamber may issue a formal request to the State concerned that its court defer to the
 LANCE BARTHOLOMEUSZ

appear as amicus curiaeat the hearing on the proposal to make the request. Before the
ICTY the Federal Republic of Gemriany appeared as amicus curiaein the Tadic defer-
ral proceedings;, I the Republic of Bosnia and Herzegovina in the Bosnian Serb
Leadership (Karad i6, Mladi6 and Stanigi6)', and the LasAa River Valley deferrals-, 5
and the Federal Republic of Yugoslavia (Serbia and Montenegro) in the Erdenovic
deferral. 1'9 This practice satisfies the State's due process expectations, although it must
be kept in mind that "as might be expected of a tribunal acting as Chapter VII enforce-
ment measure, the consent of the government is not essential to the granting of the
request." 60 When the State appears as amicus, its status is "virtually that of a Party". '6
In the ICTY Erdemovic deferral proceedings, the accused's counsel was also pres-
ent as amicus curiae.
Amici curiae and Rule 61 proceedings in case of afailure to execute a warrant
The ICTY has been more reluctant to permit amicus involvement in Rule 61 proce-
dures in case of failure to execute a warrant. ' 2 Under ICTY Rule 61, if personal serv-
ice of an indictment has not been effected after a reasonable time because of failure to
execute a warrant, ajudge may order the submission of the indictment to his or her Trial
Chamber. If there are reasonable grounds for believing that the accused is guilty of at
least some of the crimes charged in the indictment, the Trial Chamber issues an inter-
national arrest warrant for him to all States. Pursuant to Rule 61(D), the Trial Chamber
may also "order a State or States to adopt provisional measures to freeze the assets of
6
the accused, without prejudice to the rights of third parties."' 3
The ICTY has permitted some amicus participation in Rule 61 proceedings. In the
Karadzic and Vladic Rule 61 proceedings,for example, the tribunal invited to the hear-
ing a Special Rapporteur of the UN Commission on Human Rights and a member of
4
the Commission of Experts established by Security Council Resolution 780 (1992).'

competence of the Tribunal." For the Courts' relevant practice, see Dixon, Khan and May (eds.), Archbold
InternationalCriminalCourts: Practice,Procedure and Evidence, London, Sweet & Maxwell, 2003, pp.
379 384, §§5.61 5.82.
151In theMatter of a Proposal.fora FormalRequest.for Delerralto the Competence of the International
Tribunal Decision of the Trial Chamber on the Application by the Prosecutor10r a Formal Request fbr
Deferralto the Competence of the nternationalCriminal Trbunallorthe Former Yugoslavia in the Matter
ofDusko Tadic (Pursuantto Rules 9 and 10 ofthe Rules ofProcedureandEvidence), case No. IT 94-1 D,
8 November 1994.
157 In the Mlatter of a Proposalfor a Formal Request for Deferral to the Competence of the Tribunal
Addressed to the Republic ofBosnia and Herzegovina in Respect ofRadovanKaradzic, Ratko hladic and
,
Mico Sanific case No. IT 95 5 D, 16 May 1995.
151In the M!atter of a Proposalfor a Formal Request for Deferral to the Competence of the Tibunal
Addressed to the Republic ofBosnia and Herzegovina in Respect of CrinesAgainst the Population oldie
Lava River Tlley, case No. IT 95 6 D, D I May 1995.
151 In the Matter of a Proposalfbra FormalRequestforDejerralto the Competence ofthe International
Tribunal Addressed to the FederalRepublic of Yugoslavia in the Matter of Drazen Erdemovic, case No.
IT 96 22 D, 29May 1996.
Dixon, Khan and May (eds.), cited at note 155, p. 382, §5.74.
Dixon, Khan and May (eds.). cited at note 155, p. 571. §8.4.137.
112 ICTY Rules, Rule 61; ICTR Rules, Rule 61. For a summary of the Courts' practice, see Dixon, Khan
and May (eds.), cited at note 155, pp. 566-573, §8.4.119 8.4.148.
ICTY Rules, Rule 61(D); ICTRRules, Rule 61(D).
, Prosecutorv. Karadzi and Wladic, Review ol the indictments pursuantto Rule 61 of the Rules of
Procedureand Evidence, cases Nos. IT 95 5 R61; IT 95 18 R61, 16 July 1996, §2.
 THE AMICUS CURIAE BEFORE INTERNATIONAL COURTS AND TRIBUNALS 245

Other applications have been refused. In the same case the trial Chamber rejected a
request by an international NGO, Human Rights Watch, to submit a brief as amicus
curiae.The Chamber stated: "it does not appear necessary that a brief presenting the
proceedings organized by virtue of this text, whose principles and merits cannot be
legally challenged, should be submitted.' t 56' And the ICTY refused the Republic of
Croatia's request to make submissions about the nature of the conflict in the former
Yugoslavia as anicus curiaein Rule 61 proceedings relating to Ivica Raji.'6
Why has the ICTY apparently been less open to State participation as amnicus in Rule
61 proceedings than in Rule 10 proceedings? Perhaps it relates partly to the general
nature of the submissions that Croatia sought to make in Rule 61 proceedings, and
partly because of the limited impact of the Tribunal's possible decisions on the rele-
vant State's rights and interests. To date there has not been an order for a State to take
provisional measures pursuant to Rule 61 (D). Had such orders been proposed, amicus
involvement would have been more likely because of the direct effect ofthe orders on
1
the individual's interests and the State's duties. 67

Amici curiae at trial and on appeal

At trial and on appeal amici have been used extensively by the ICTR and the ICTY.
Their participation has served a number of functions, for example:

" to provide advice on important issues of general and criminal international law
(Tadic; Blask1ic; Semanza; Brdjanin and Talic);
" to act as a check on the prosecutorial discretion about what charges are included in
indictments (Akayesu,;
" to comment on gender-related evidential issues (Furundija), and to explain the
scope of the UN Secretary-General's waiver of a former UN official's privileges and
immunities to give evidence before the Tribunal (Akayesu).
In Tadic, the accused filed a preliminary motion objecting to ICTY jurisdiction, pri-
marily on the basis that the Security Council had no power to establish the Tribunal.
The US Government successfully intervened in relation to this important question of
general international law on the basis of "its special interest and knowledge as a
Permanent Member of the UN Security Council and its substantial involvement in the
adoption of the Statute of the Tribunal". ' In the course of the Tadic proceedings the
ICTY received many requests to intervene as amici curiae for various purposes and at
various stages. For example, a UK law professor, Christine Chinkin, was permitted to

11 Order on a Request to Submit an Amicus Curiae Brief Durngthe Proceedings Pursuantto Rule 61
0fthe Rules ofProcedureand Evidence, cases Nos. IT 95 5 R61 IT 95 18 R61, 21 June 1996. Text as
quoted by Dixon, Khan and May (eds.), cited at note 155 , p. 571, §8.4.136.
16 IT 95 12 R61, referred to in ICTY, Third Annual Report, UN Doc. No. A/51/292, 16 August 1996,
§65.
!'- Similar concerns arise for similar reasons in the case of UN Security Council sanctions committees,
some of which have power to order the freezing of an individual's financial assets in the absence of charges
or the tight to be heard. The Al Qaeda and Taliban Sanctions Committee, established pursnant to Security
Council Resolution 1267 (1999) and subsequent resolutions, is an example of such a committee.
!I Submission of the Government of the United States concerning certain arguments made by counsel
for the accused inthe case of the Prosecutorofthe Tribunalv. Dusan Tati, I. Text as quoted by Dixon, Khan
and May (eds.), cited at note 155, p. 698, §8.5.505.
 LANCE BARTHOLOMEUSZ

file an amicus brief for the purposes of the preliminary status conference to discuss
mainly procedural matters. The brief made submissions about the appropriate princi-
ples in international criminal proceedings relating to witness confidentiality (vis- -vis
the public) and witness anonymity (vis-a-vis the accused). 6 9
Both the Trial and Appeals Chambers used amiici curiae extensively in the Blaskic
proceedings when they considered the ICTY's power to address subpoenas to sover-
eign States and their high government officials, and the appropriate remedies for non-
compliance.' 7° Evidently, these were significant questions of both international
criminal procedure and general international law. The Trial Chamber invited requests
to participate as amicus curiae and specified the questions to be addressed. It received
a number of requests from individuals, mainly distinguished international law pro-
fessors, and some NGOs such as Juristes sans Frontidres and the Lawyers Committee
for Human Rights. The Trial Chamber granted leave to 13 applicants to make written
submissions, amongst whom seven were allowed to participate in the hearing.' 7' On
appeal, the Appeals Chamber extended a similar invitation for amici to participate.' 2
73
This time five States also responded with amicus curiaebriefs.
In Semanza the ICTR considered Belgium's request to appear as anicus curiae to
make submissions about the scope of Common Article 3 of the Geneva Conventions
and Additional Protocol I. Belgium considered that the ICTR had interpreted these
provisions too restrictively. The tribunal thought that it might be useful to gather addi-
tional legal views about these provisions and so permitted Belgium to make written
submissions, but only relating to the legal principles involved and not the particular cir-
4
cumstances of this or any other ICTR case.-
The Appeals Chamber also permitted written and oral anicus curiae participation
on behalf of 34 media companies and journalists' associations in proceedings that
raised the issue of compelled testimony by war correspondents before a war crimes tri-
bunal. The issue was novel and there did not appear to be any case law directly on
point.' 7

"I Prosecutorv.Tadic, Decision on the Prosecutor .Vfotion Requesting Protective.Vfeasures1br Victims

and Witnesses, case No. IT 94-1, 10 August 1995, §10.
Case No. IT 95 14 PT.
Prosecutor v.Blaskid, Decision on the Obljection ol the Republic of Croatia to the Issuance of
SubpoenaeDuces Tecum, case No.IT 95 14, 18 July 1997, §§7, 8, 10 and 12.
12 Prosecutor v.Blaski(. Decision on the Adinissibility ofthe Request for Review by the Republic of
Croatia la
on Interlocutory Decision ol a Trial C!haiber (Issuaice __Subpoenae
Duces Tecum) and
Se/iduling Order,case No. IT 95 14. 29 July 1997, §16.
17'Prosecutorv.Blaskit, Judgement on the Request o/ the Republic of CroatiaJbrRevietwof the Decision
ofaTri /Chamber lofI8Jufv 1997,case No.IT 95 14, 29 October 1997, § 17. For more details about par-
ticipation in these proceedings, see fbr example Pavia, "Juristes sans Frontieres: 'Amicus Curiae' do
Tribuml penal international pour l'ex-Yougoslavic", in Juristes sans Fronti6res, Le Tribunalpcnalinter-
nationalde La Haye: ledroit 1 preuve de la 'iurification ethnique',Pais,L Harmattan, 2000,pp.235 277.
I Prosecutorv.Semanza. Decisionon the Kingdom QfBeigium s Application to File an Anicus Curiae
Briaiidon theDeenceApplicationto Strike the Observationsof the Kingdom Qf Belgium Concerningthe
Preliniinciri Response by the Defence, case No. ICTR 97 20 T, 9 February 2001, §10. The Belgian
Government advised the ICTR that it did not want to make oral submissions.
"I Prosecutor v.Brd'anin and Talle Decision on InterlocutoryAppeal, case No. IT 99 36 AR73.9,
Appeals Chamber, I I December 2002, §§7, 30.
 THE A4MCUS CURIAE BEFORE INTERNATIONAL COURTS AND TRIBUNALS

It is notable that some of issues addressed by ainici in the cases referred to above
were related to general international law rather than international criminal law. Aiicus
participation appeared to have comforted the judges who, although able, had much
more experience in the realm of international criminal law than in that of general inter-
national law.
Amici curiae have also acted as a check on the prosecutorial discretion about what
charges to include in indictments. In the Akayesu proceedings before the ICTR,' the
accused had not initially been charged with crimes of rape or other sexual violence.
During the trial evidence emerged about the accused's prominent role in mass rape in
Rwanda. Subsequently a coalition of international and Rwandan NGOs concerned with
international human rights and women's issues were granted leave to submit an arni-
cus brief that urged the prosecutor to amnend the indictment to bring charges of rape and
sexual violence against the accused. Following acceptance of the brief, the Prosecutor
duly amended the indictment.'77
In Furundzijathe ICTY appreciated an amicus curiae application from a coalition
of women's groups who made submissions about the credibility of a rape victim's evi-
dence as witness and about appropriate protective measures for the witness.
Proceedings had been re-opened because of the Prosecutor's late disclosure of
evidence that, after being raped, the witness had received medical, psychological or
psychiatric treatment or counselling.'I 8
The ICTR permitted the UN Secretary-General's representative to make written and
oral submissions as amicus in the Akayesu proceedings. The amicus explained the
scope of the UTN Secretary-General's waiver of a former UTN official's privileges and
immunities to give evidence before the Tribunal. I' The ICTR's decision is consistent
both with the special role of the Secretary-General in the determination and waiver of
UTTN privileges and immunities and with ICJ practice in advisory proceedings initiated
pursuant to the 1946 Convention on the Privileges and Immunities of the United
Nations.'11
ICTY practice indicates that requests to participate will not be granted where the
Court considers them not useful. For example, in Tadic an organization called
Courtroom Television Network sought leave to oppose a Defence motion to curtail
press access to the forthcoming trial. The Chamber rejected the request because it said
that the major part of the Defence motion had been rejected and that the Network's
views were adequately set out in its request for leave to appear as amicus curiae."'
The ICTY's practice raises the question of whether and what sort of amici are more
welcome than others. Certainly invited friends are the most welcome. Well-known
friends who seek an invitation too may be welcome, in the Tadic proceedings, for

176Prosectuorv. Akayesu, case No. ICTR 96-4 T.

171See Razzaque, cited note 3, at p. 189.
171Prosecutorv. Anto Furundiia,Jigrnent,Trial Chamber, 10 December 1998, compare §§35, 107.
179 Prosecutorv. Akayesu. Judgemcnt, Appeals Chamber, case No. ICTR 96-4 T, 2 September 1998,
§25.
See text accompanying notes 44 to 47.
Prosectuorv. Tadi,. Order Denying Leave to Appear Amicus Curiae, case No. IT 94 T, 3 May
 LANCE BARTHOLOMEUSZ

instance, the ICTY was sympathetic to applications from several well-known inter-
national lawxyers. Following its appointment of three invited amici curiae the Trial
Chamber in Milouevic was unsympathetic to subsequent uninvited applications to
8 2
submit amicus briefs.1

Amici curiae and ensuringa fair trial

In the proceedings against Slobodan Milogevi6 the ICTY appointed a number of amici
curiae.In doing so the Trial Chamber noted the requirement in Article 20 of the ICTY
Statute that a trial be fair and be conducted with full respect for the rights of the
accused. Milogevi had insisted upon representing himself and the Court wanted to
ensure that it would receive submissions relevant to his defence." 3

B. Nature ofamici curiae in ICTY andICTR proceedings

In the Milosevic proceedings the ICTY used amici curiae extensively. In doing so, it
addressed issues such as the circumstances in which it is appropriate to appoint amici,
and the nature, functions and responsibility of the amici. We turn now to examine the
relevant decisions in the Milosevic and some other proceedings.
Blurring the line between pary and amicus curiae?
ICTY decisions, particularly in Vilosevic, have blurred the line between parties and
amici curiae.81 4 The Tribunal has made a number of decisions giving the amici legal
capacity very similar to that of the parties, but without explaining in detail the basis of
its power to do so.
On 20 January 2004, in the Milouev ic proceedings, the Appeals Chamber delivered
its decision on the interlocutory appeal by the amici curiae against the Trial Chamber
order concerning the presentation and preparation of the defence case.' Before the
Trial Chamber, the then lead amicus curiae, Stephen Kay, had made a number of sub-
missions about the appropriate length of time for the accused to prepare and present
his defence. The amici then appealed the subsequent Trial Chamber decision. This
decision illuminates some aspects of the legal nature of the amicus curiae before the
ICTY.
The Appeals Chamber expressly stated that the amici were not a party for the pur-
poses of Rule 73, which concerns the right of a party to appeal a decision of the Trial

112 Prosecutorv. Miloevie, Order on applicationto file an amicus curiae briel case No. IT 02 54 T,
28 January 2002.
113 See Prosecutorv. Miloevic, Order Inviting Designation of Amicus Curiae, Trial Chanber, case No.

IT 02 54 T, 31 August 2001. The Tribunal had, however, made clear that "an amicus curiae be
appointed .. not to rcprcsent the accused but to assist [the Tribunal] in the proper determination of the case".
The accused has a right to self-rcpresentation; see Article 14(3)(d) of the International Covenant on Civil
and Political Rights. See further Jorgensen, 'The Right of the Accused to Self-Representation befbre
International Criminal Tribunals'. American Journalof intrnationalLaw, Vol. 98, 2004 pp. 711 726.
h4 paper has already noted that States participating in ICTY Rule 10 deferral proceedings do so
This
virtually as a party: see text accompanying note 161.
11 Prosecutorv. lilosevic, Decision on the interlocutory appeal by the amici curiae against the Trial
Chamber Order concerning the presentation and preparationof the defence case, case No.
IT 02 54 AR73.6, 20 January 2004.
 THE AMICUS CURIAE BEFORE INTERNATIONAL COURTS AND TRIBUNALS

Chamber.1 6 The Appeals Chamber added: "The fact that the amici were instructed by
the Trial Chamber to take all steps they consider appropriate to safeguard a fair trial
for the Accused does not alter this conclusion." Notwithstanding this result, the
Appeals Chamber heard the appeal, considering (by a majority) that the amici s request
was aligned with the accused's interest; that the prosecution was willing to accept the
amici as a party for these purposes- and that the interests ofjustice were served by con-
sideration of the appeal. The Appeals Chamber did not identify the legal source of its
power so to decide, notwithstanding its conclusion that an amicus curiae was not a
party for the purposes of Rule 73. Nor did the Appeals Chamber consider its statement
in Opacic in 1997 that amici curiae are not parties and therefore do not, for instance,
have the right to appeal against decisions given by a Trial Chamber.", In fact the
Appeals Chamber treated the amicus curiae as it would any other appellant. For
example, it held that the amici bore "the burden of demonstrating that the Trial
Chamber has erred in the exercise of its discretion".'
Judge Shahabuddeen agreed in the result (that is, dismissal of the appeal) but
expanded on the "more fundamental fact that the interlocutory appeal has not been
brought by a 'paity'within the meaning of Rule 73(A) of the Rules of Procedure and
Evidence of the Tribunal." In his separate opinion he examined closely whether the
Court was competent to hear an appeal from the amici:
(a) Wiether the amici curiae are a party

4.The name of the interlocutory appeal, as given on the cover page of the appeal, is"Interlocutory Appeal
by the Amici Curiae... ".Nothing to the contrary appearing in the text, the interlocutory appeal is an
appeal brought by the amiei curiae.
5.The question, therefore, is whether an amicus is a party and so competent to bring the appeal. Thcre
could be argument as to what is a party; but it is not necessary to debate that point. However wide may
be that term,it clearly does not include an amicus.Paragraph 4 of today's decision correctly rccognises
that, "[n]ot being a party to the proceedings, the amici arc not entitled to use Rule 73 to bring an inter-
locutory appeal." That paragraph tightly adds that the "fact that the amici were instructed by the Trial
Chamber to take all steps they consider appropriate to safeguard a fair trial for the Accused does not alter
this conclusion."

§4. ICTY Rule 73(A) provides: 'After a case isassigned to a Trial

!6 bid., Chamber, either pary may
at any time move before the Chamber by way of motion, not being a preliminary motion, for appropriate
ruling or relief... .'Rule 73(C) provides, relevantly, that '...
Ifcertification [to file
an interlocutory appeal]
is given [by the Trial Chamber], aparv shall appeal to the Appeals Chamber within seven days of the filing
of the decision to certify.' (Emphasis added)
! In the case of Dragan Opacic: Decision on ApplicationJbrLeave to Appeal, Appeals Chamber, case
No. IT 95 7 Misc.1, 3 June 1997, §§5 6,the Appeals Chamber said: "The detained witness, Dragan
Opacic, who has not been indicted, being neither the Prosecutor nor the accused, is therefore not a party.
Accordingly he has no standing to invoke Rule 72.... If this view of the matter appears overly legalistic,
any other ruling would open up the Tribunal's appeals procedures to non-parties -witnesses, counsel, ani-
cus curiae, even mcmbers of the public who might nurse a grievance against a Decision of the Trial
Chamber. This could not be.7he Tribunal has a limited appellate jurisdiction which categorically cannot bc
invoked by non-parties."
' Prosecutorv.Milosevi. Decision on the interlocutory appeal by the alnici curiae against the Trial
Chamnber Order concerning thepresentationandpreparation ofthe dience case,cited at note 185, § 18. See
also §7,notes 15 and 16.
 LANCE BARTHOLOMEUSZ

6.Paragraph 5 of today's decision notes that "the Prosecution represented to the Trial Chamber its will-
ingness to accept the amici as a party.. .".
It suffices to observe that the Tribunal is a criminal court. The
jurisdiction of the Appeals Chamber cannot be expanded by consent. The Prosecution cannot by consent
make the abaici a party. Despite the Prosecution's concession, the abaici remain a non-party.!"

Judge Shahabuddeen also considered the nature of the relationship between the
accused and the amici curiae in the current context:

12. Has the appeal been brought by the amici curiae acting as counsel tor the accused? This question may
be examined under these two heads:
(i) Were the amii capable in law of acting as counsel for the accused?
(ii) If they were capable in law of acting as counsel for the accused, did he authorise them to act as
his counsel?
13. As to (i), it does not appear that the amici curiae were capable in law of acting as counsel for the
accused. This is shown by Rule 74 of the Rules of Procedure and Evidence of the Tribunal, under
which the amici curiae were appointed. This Rule provides that a "Chamber may, if it considers it
desirable for the proper determination of the case, invite or grant leave to a State, organization or per-
son to appear before it and make submissions on any issue specified by the Chamber." Clearly, wherc
counsel appears, he is not acting as counsel for the accused.
14. To the extent that amici curiae could historically be appointed to "represent the unrepresented," that
aspect of the character of an aticus has now been overtaken by separate provisions and a separate
procedure under which the Tribunal can assign counsel to give legal assistance to an indigent
accused, if he desires it. The difference was acknowledged in the first amicus curiae order, made by
the Trial Chamber on 30 August 2001, which stated that the Chamber considered it desirable to
appoint amii curiae "not to represent the accused but to assist in the proper determination of the case,
and pursuant to Rule 74." In my view,the principle of that prohibition has been retained in subse-
quent orders including an order of11 January 2002 made by the Trial Chamber on the subject.
15. In stun, although the institution of aitcus curiae has broadened out in some jurisdictions, shifting
from its traditional role as friend of the court to advocate for an interested body other than an exist-
ing party, inmy opinion, inthe Tribunal, an ahticus curiae is limited to his essential tunction as a
friend of the court, as distinguished from being a friend of the accused. More pertinently, under the
system of the Tribunal, he is not legally competent to act as counsel for the accused, and he certainly
is not an intervcner.'

On 5 February 2004, an ICTY Trial Chamber applied the Appeal Chamber's decision
of 20 January 2004 to the question of whether the amici curiaecould file a motion for
judgment of acquittal pursuant to Rule 98bis of the ICTY Rules.9i On 27 June 2003.
the Trial Chamber had held that the amici curiaecould file such a motion."' At the time
of the Trial Chamber's decision, Rule 98bis provided:

(A)An accused may file a motion torthe entry ofjudgement of acquittal on one or more offences charged
in the indictment within seven days after the close of the Prosecutor's case and, in any event, prior to the
presentation ofevidence by the defence pursuant to Rule 85 (A)(ii).

]bid., §§4-6.
I9
tIobid., §§12 15. Footnotes omitted.
"I Prosecutor v.Milosevic' Decision on Prosecution I Motion under Rule 73(A) for a Ruling on the
Coatpetence ortheAnici Curiaeto Present a MotionoJudgementotAequittal UnderRule 98bis, case No.
IT 02 54 T, 5February 2004.
"I Prosecutor v.Milogevic, Order on Attci Curiae Request Concerning the Manner of their Future
Engagemnent and Procedural Directions Under Rule 98bis. case No. IT 02 54-T. 27 June 2003.
 THE AMICUS CURIAE BEFORE INTERNATIONAL COURTS AND TRIBUNALS 251

(B) The Trial Chamber shall order the entry ofjudgement of acquittal on motion of an accused or proprio
mon if it finds that the evidence is insufficient to sustain a conviction on that or those charges.

It is difficult to support the Trial Chamber's judgment on a literal reading of the rule.
Only the accused has the power to file a motion, It is one thing to treat an am icus curiae
as a "party" within the terms of ICTY Rule 73 yet another one to treat the amicus curiae
as the 'accused' within the meaning of ICTY Rule 98bis. 193
Following the Appeal Chamber's decision of 20 January 2004, the prosecution
sought reconsideration of the Trial Chamber's order of 27 June 2003, primarily on the
basis of comments by Judge Shahabuddeen in his separate opinion. The Trial Chamber
dismissed the prosecution's motion to reconsider its order. It considered that "the
Appeals Chamber itself in that case decided to consider the appeal brought by the
4mici Curiae,and in so doing proceeded on the basis they had locus standi". Further
the Trial Chamber applied factors similar to those referred to by the Appeals Chamber
in its 20 January 2004 decision, It considered that the filing by the amici curiae of the
motion "does not in any way prejudice the Prosecution, does not infringe the interests
of the Accused, and that it is in the interests of justice as a whole for the Motion to be
brought". 14
The ICTY Rules have been amended several times since the Appeals Chamber
decided, unanimously, that an amicus curiaewas not a "party" within the terms of Rule
73.195 Rule 98bis has been amended so that the question decided by the Trial Chamber
in relation to amicus motions can no longer arise. Oddly, Rule 73 has not yet been
amended so as to reflect the Appeal Chamber decision of 20 January 2004.
Further blurring the line in practice between amici curiae and parties, following the
Trial Chamber's request on 2 September 2004, one of Milogevic's amici curiae,
Stephen Kay, agreed to be appointed as court-assigned counsel fbr the accused 96
The ICTY decision of 20 January 2004 in Miloevic indicates (a) that the role of an
amicus curiae sometimes resembles that of a party; and (b) that the legal nature of
the amicus curiae is not at all as clear as that of a "party" and is still in the course of
development.
While the distinction between a party and an amicus curiaemay not be clear in prac-
tice in the ICTY, the ICTR distinguished between the two when it held that an amicus
could not present the evidence of witnesses and that could be done only through the
prosecution or the defence.' 9

Since its
amendment on 8 December 2004, ICTY Rule 98bis avoids difficulties of interpretation by
dispensing with motions to enter a judgment of acquittal. Since its last amendment, ICTY Rule 98bis
('Judgement ofAcquittal') has provided: "At the close of the Prosecutor's case, the Trial Chamber shall, by
oral decision and after hearing the oral submissions of the parties, enter ajudgement of acquittal on any count
if there isno evidence capable of supporting a conviction."
!' Prosecutorv.Milofevic, Decision on Proseution 's Motion tinde; Rule 73(A) Jbr a Ruling on the
Competence oflhe Amici Curiae toPresent a Motion orJudgementof 4cquittalunder Rule 98bis, cited at
note 191.
Revision 30, 12 April 2004; Revision 32, 12 August 2004; and Revision 33, 8 December 2004.
6 For an account of the procedural history of appointment of court-assigned counsel, see Prosecutorv.
Decision on Assigned Counsel' Aotion for Withdrawal, case No. IT 02 54-T. 7 December
MfiloseviKc.
2004. §1.
>7 Prosecutor v. Bagosora, Decision on the Amieus Curiae Applicaion by the Government of the
Kingdom of Belgium, case No. ICTR 96 7 T, 6 June 1998.
 LANCE BARTHOLOMEUSZ

The Viloev ic proceedings perhaps suggest that amici curiaeshould have such legal
procedural capacity before a court or tribunal as may be necessary for the exercise of
the latter's functions and for fulfilment of the purposes for which it was appointed. It
goes without saying that their functions and purposes are to assist in the administra-
tion ofjustice. Consideration of the practice of the ICTY and the ICTR indicates that
these functions and purposes can vary considerably. The ICTY has been prepared to
overlook procedural difficulties in what it considers to be the interests of justice.
Impartialiyqf the anicus curiae
While the ICTR held that an amicus curiae is not required to be completely impartial,
the ICTY indicated that there were limits, even if the amicus was presenting arguments
relevant to the defence of the accused.
In the Bagosora case before the ICTR,the Belgian Government requested, and was
granted permission, to appear as an amicus.9 The defence contended that the Belgian
Government's appearance to make submissions on questions of law "would create an
unacceptable disequilibriumn in the proceedings in favor of the Prosecutor, as the
Belgian Government could not be considered a neutral party." The Tribunal com-
mented that "the general definition of amicus curiae does not call for impartiality on
the part of the filing party. Rather it takes into consideration that such briefs are filed
by a party, not a part of the action, but one with strong interests in or views on the sub-
ject matter before the court."
In October 2002, one amicus curiae (Mr Wladimiroff) was removed by the Trial
Chamber friom the MilogeviC proceedings following interviews given by him to
European newspapers in the previous month where he reportedly said that the possi-
bility that MilogeviC would be found innocent on all charges by the ICTY was
"insignificantly small". 9 9At the time evidence had not been adduced in relation to a
number of charges. The Trial Chamber held that, even considering the amicus curiae's
explanations, the statements raised "serious questions about the appropriateness of his
continuing as amicus curiae." It added that "he appears to have forned a view of the
case unfavourable to the accused"and was particularly concerned about his view that
Milogevi must be convicted of, at least, some of the charges. The Trial Chamber said
that the statements taken as a whole gave rise to a "reasonable perception of bias on
the part of the amicus curiae"and concluded:

tmplicit in the concept of an amicus curiae is the trust that the court reposes in "the friend" to act fairly
in the perfbrmance of his duties. In the circumstances, the Chamber cannot be confident that the amicus
curiae will discharge his duties (which include bringing to its attention any defences open to the accused)
with the required impartiality.
Notably, the ICTY has also asked applicants for leave to make amicus submissions to identify and
2
explain any contact or relationship they had with any party to the case. 10

"I Prosecutor v.Bagosora, Decision on the Amicus Curiae Application by the Governhnent of the

Kingdom ofBelgium, caseNo. ICTR 96 7 T,6 June 1998.

111Prosecutorv. Mfilooevi.
Decision Concerningan Amicus Curiae, case No. IT 02 54 T,10 October
2002.
200See Iojormation Concerning the Submission ofAmicus Curiae Brief, IT/122,22 March 1997.
 THE AMICUS CURIAE BEFORE INTERNATIONAL COURTS AND TRIBUNALS

Continuingcontrol over the amicus

By giving a specific mandate to the amicus curiae,the ICTY has retained control over
the amici even after appointment. For example, on 26 October 2004, the Trial Chamber
refused, for the time being, a request by the then only remaining ainicus, Tim
MacCormack, to be allowed to submit observations on some relevant aspects of inter-
0
national criminal law.2 1

Form and content of amicus participation

In 1997 the ICTY issued Information Concerning the Submission of Amicus Curiae
2
Briefs in which it elaborated on the form of an application to participate as amicus.20
The applicant was required to state: its interest in the case, the issues it seeks to address;
the nature of the information or analysis it proposes to submit, its qualifications, the
reasons for believing that its submission would aid in the proper determination of the
case or issue; and a statement identifying and explaining any contact or relationship
the applicant had, or has, with any party to the case.

C. Concluding remarks
ICTY and ICTR have a rich amincus curiaepractice that will no doubt inform the prac-
tice of the ICC. Because of this rich practice, these Tribunals have had more occasion
to elaborate on the juridical nature and appropriate role of amici than most of the other
international courts and tribunals referred to in this paper.

4.3 Special Court for Sierra Leone

The Special Court for Sierra Leone (SCSL) was established on 16 January 2002 under
an agreement between the United Nations and Sierra Leone. 20 It has power to prose-
cute persons who bear the greatest responsibility for serious violations of international
humanitarian law and Sierra Leonean law conmitted in the territory of Sierra Leone
since 30 November 1996.104 Under its rules it has explicit power to appoint amici
curiae.Rule 74 of the SCSL Rules of Procedure and Evidence, which contains insub-
stantial differences from the equivalent ICTY and ICTR Rule, provides:

A Chamber may, if it considers it desirable for the proper determination ofrthe case, invite or grant leave
to any State, organization or person to make submissions on any issue specified by the Chamber"'

Notably, the SCSL has used its power under this rule in proceedings involving its high-
est-profile indictee, Charles Ghankay Taylor, the Former President of Liberia. Taylor

211Prosecutorv.Milosevic, Order onAmnici Curiaeobservationson relevant issues ofinternationalla,

Trial Chamber, case No. IT 02 54-T, 26 October 2004. The mandate ofthis amicus was stated in Prosecutor
v A/filogevic, Order appointinganicus curiae,Trial Chamber, case No. IT 02 54 T, 22 November 2002.
212 Information Concerning the Submission ofAmicus Curiae Briefs, IT/122, 22 March 1997.
21' Agreement between the United Nations and the Government of Sierra Leone on the Establishment of
a Special Court for Sierra Leone, 16 January 2002 ("the Agreement"). Documents and cases referred to in
this section arc available through the SCSL's official wcbsite: http:/awww.sc-st.org/index.htnl.
201Statute of the Special Court fbr Sierra Leone, Amex to the Agrcement, cited at note 203.
205SCSL, Rules ofProcedure and Evidence, adopted 16 January 2002, as amended to 14 May 2005.
 LANCE BARTHOLOMEUSZ

applied to the SCSL to quash the Court's indictment against him and to set aside the
warrant for his arrest on the grounds that he was immune from any exercise of the
Court's jurisdiction.20
In the course of deciding this application, "in view of the significance of the inter-
national law issues", the Court invited two law professors to make written and oral sub-
missions as amici: Diane Orentlicher and Philippe Sands, QC.
Professor Sands made submissions about a head of state's immunity from indict-
ments of international or national courts; on whether the SCSL was an international
court: on whether it was lawful for the SCSL to issue the indictment and circulate the
arrest warrant while Taylor was a serving head of State; and on the effect of Taylor's
subsequent status as a former head of State. Professor Orentlicher answered two ques-
tions: whether the indictment was invalid because it violated the procedural immuni-
ties accorded serving heads of State under international law, and whether Taylor had
substantive immunity as a former head of state from prosecution for the specific
2
crimes charged. 17
The Court referred in detail to these professors' amicus briefs. The Court explicitly
adopted Professor Sands' conclusions (which it described as "not difficult to accept")
that the Court was an international court "with all that implies for the question of
28
immunity of a serving head of State".
The African Bar Association also submitted an amicus brief almost one month after
the hearing, just before the deadline for the parties' final submissions. 2 9 The Court
accepted the brief, without giving reasons, but in its judgment only referred to its con-
20
tents very briefly. 1
Together with the ICTY's practice in Tadic and Blaskic, the SCSL's practice in
Taylor confirms that international criminal tribunals are inclined to welcome amicus
participation to help them decide important issues of general international law, espe-
cially where high-profile indictees are concerned.

5. World Trade Organization, Dispute Settlement Body

Amii c uriae have participated in proceedings of the Appellate Body and panels of
the Dispute Settlement Body (DSB) of the World Trade Organization (WTO). Of all
the courts and tribunals discussed in this paper, the participation of amici curiaein the
WTO dispute settlement mechanism has been the most controversial and sensitive. As
New Zealand said in one WTO debate about amicus curiae participation: "the most
sensitive issue among the membership related to issues regarding access to and

211 Prosecutor v. Charles Ghankay Taylor, case No. SCSL 2003 01 1, Decision on immunit from
Jurisdiction, 31 May 2004 (Justices Avoola, King and Winter) ("Taylor").
Tylor, cited at note 206, §§17, 18.
20 Taylor, cited at note 206, §41. See also §51, where the Court explicitly referred to Professor
Orentlicher's brief in support of its conclusions.
"I Tailor,cited at note 206, at pp. 3 and 4.
20 Taylor, cited at note 206, §19.
 THE, AMCUS CURIAE BEFORE INTERNATIONAL COURTS AND TRIBUNALS 255

participation of non-Members in both the negotiation of commitments and in dispute

2
settlement in relation to such commitments." ''
Participation of amici curiae in WTO dispute settlement proceedings has found
explicit support from anAmerican President, from NGOs and from some anti-global-
isation protesters; and it has received condemnation from many States.
The WTO dispute settlement system, contained in the Dispute Settlement
Understanding (DSU) 2 12 is a compulsory mechanism for resolution of disputes under
WTO and GATT agreements. The WTO dispute settlement system is "a central ele-
23
ment in providing security and predictability to the multilateral trading system". "
When a dispute is submitted to the WTO, it is first considered by a panel. Appeals
against reports of a panel are heard by the Appellate Body.
The DSB, apolitical body composed of WTO Member States, adopts reports of pan-
els and the Appellate Body by a system of negative consensus, that is, a report is
adopted automatically unless WTO members decide by consensus to block it.2 4While
this system makes it highly unlikely that reports are rejected, Members are permitted
to express views on the reports. 21 5 This means that, of all the courts and tribunals dis-
cussed in this paper, it is easiest to gauge State's views of amicus curiae participation
in the context of WTO proceedings. Some of these views are applicable beyond the
context of WTO participation and will be referred to in Part III (General Conclusions).
At the outset the WTO dispute settlement mechanism did not take amicus briefs into
consideration, following the practice from the time of GATT.2 6 Apparently, propos-
als for amicus participation had been made, negotiated and rejected during the Uruguay
Round and did not produce any consensus results when reiterated by a few Members
during the DSU review.'r On 15 May 1998, a panel in Shrimps/Turtlesreceived from
environmental NGOs some amicus briefs that it had not requested. Relying on a literal
reading ofArticle 13 of the DSU (Right to seek information), 28 it refused to take into

21 General Council, Minutes ol'Meeting held on 22 November 2000, WTiGC/M/60, 23 January 2001,
§87.
212 Marrakesh Agreement Establishing the World Trade Organization, 15 April 1994, Annex 2,

Understanding on Rules and Procedures Governing the Settlement of Disputes ("DSU")

21 DSU. Art. 3.2.

214 Caflisch, "Cent ans de reglement pacifique des diff6rends interdtatiques", in Colleced Coursesoftthe

Hlague Acade y ofhlefrationa!Low, The Hague, Martinus Nijhoff; 200 1, Vol. 288, pp. 245 467, at pp.
366 368.
215 Under Art. 17.14 of the DSU, "An Appellate Body report shall be adopted by the DSB and uncondi-

tionally accepted by the parties to the dispute unless the DSB decides by consensus not to adopt the
Appellate Body Report within 30 days following its circulation to the Mcnbers. This adoption procedure
is without prejudice to the right of Menbers to express their views on an Appellate Body report".
216 Stern, "L'intervention dans le contentieux de IOMC", Revu ge g nale de droit internationalpublic,
Vol. 107, 2003, pp. 257 303, at p. 260.
21- See WT/GC/M!60, cited at note 211, §23 (statement of Hong Kong, China). India, Mexico and

Singapore summarized the diplomatic history in similar terms: see §§38, 50 and 60, respectively. The United
States characterized the negotiations differently (at §77): "It was a mistakc to claim that the negotiating his-
tory of the DSU showed any intent to ban ainicus submissions. In fact, the United States had at one point
sought language to clarify the DSU and make it explicit that such submissions would be permitted, but had
become convinced that this w as not necessary."
211 DSU. Art. 13 provides relevantly: "1. Each panel shall have the right to seek information and techni-

cal advice from any individual or body which it deems appropriate.... 2. Panels may seek information from
any relevant source and may consult experts to obtain their opinion on certain aspects of the matter... "
 LANCE BARTHOLOMEUSZ

account this non-requested information from non-governmental sources because it

would be "incompatible with the provisions of the DSU as currently applied". The
Panel nevertheless allowed the parties to annex part or all of the NGO briefs to their
2 9
own submissions, which the United States did. 1
Three days after the Panel issued its report in Shrimps/Turtles,US President Clinton
said in a keynote address of 18 May 1998: "Today, there is no mechanism for private
citizens to provide input in these trade disputes. I propose that the WTO provide the
opportunity for stakeholders to convey their views, such as the ability to file amicus
briefs', to help inform the panels in their deliberations. "220
Subsequently, as Stern has aptly summarized, the WTO Appellate Body opened the
door to amicus briefs, at first slightly in October 1998, resolutely in May 2000, and
widely open in N ovember 2000, but without letting anyone in. Subsequently, in May
22
2002,the Appellate Body pushed open a new door. 1
In Shrimps/Turtles the Appellate Body slightly opened the door to amicus briefs by
rejecting the Panel's interpretation of Article 13 of the DSU, stating that:

Inthe present context, authority to seek information is not properly equated with aprohibition on accept-
ing infbrmation which has been submitted without having been requested by a panel. A panel has the dis-
cretionary authority either to accept and consider or to reject information and advice submitted to it,
222
whether requested by a panel or not.

Prior to opening that door the Appellate Body confirmed the nature of access to WTO
proceedings: "access to the dispute settlement process of the WTO is limited to mem-
bers of the WTO. This access is not available, under the WTOAgreement and the cov-
ered agreements as they currently exist, to individuals or international organizations,
223
whether governmental or non-governmental."'
The Appellate Body then went on to admit three amicus curiaebriefsannexed to the
appellant's submission. It concluded that those briefs formed part of the appellant's
submission and observed that it was for a participant in appeal proceedings to deter-
mine for itself what to include in its submission. 224 It also took into consideration one
amicus brief that had not been annexed to a party's submissions, but without explain-
225
ing the legal basis for doing so.
On 6 November 1998 the DSB considered the Panel and Appellate Body reports in
Shrimps/Turtles.221 Overall, WTO Members reacted negatively to the Appellate Body's

21 United States Import Prohibition of Certain Shrimp and Shrimp Products, Report of the Panel,
WT/DS58/R.15 May 1998, §7.8.
22 Statement by H.E Mr.William J.Clinton in Geneva on the occasion of the 50th Anniversary of

GA TTWTO, WORLD TRADE WT/FIFTY/H/ST8, 18 May 1998.

21 Stern, cited at note 216, pp. 264-274.
22 UnitedStates- Import ProhibitionofCertain Shrimp and Shrimp Products, Report of the Appellate

Body, WTiDS58/AB/R, 12 October 1998, §108.

Sh ips/ardies,Report of the Appellate Body, cited atnote 222, §101.
4 Ibid., §89.
2 Compare Ibid., §83. See Stem,cited at note 216, p.265. Thailand criticized the Appellate Body's re-

port fbr this lacuna: see Dispute Settlement Body, Minutes of Meeting Held on 6 Noviember 1998,
WT/DSB/M!50.14 Dccenber 1998, at pp. 2 3.
221 WTiDSBiMi50,cited at note 225.
 THE AMICLS CURIAE BEFORE INTERNATIONAL COURTS AND TRIBUNALS

decision that the Panel had power to accept uninvited NGO amicus briefs, even if not
attached to a party's submissions. Only the United States and Hong Kong, China spoke
227
in support of this part of the Appellate Body's decision.
Those Members that reacted negatively advanced a number of reasons. Most
objected to the expansive reading of the Panel's power to "seek" information under
Article 13 DSU as including a power to "accept" uninvited submissions. Members
expressed the view that, amongst other things, this was contrary to the ordinary mean-
ing of the word "seek" read in the context of the WTO agreement.22 Objecting
Members were concerned that such a decision could give NGOs and other amici more
rights than Members, in contravention of Article 19.2 of the DSU: 229 that uninvited
amicus briefs might overburden the panels and parties: 23 and that the issue of permit-
ting amicus participation should have been one for the Members as part of the DSU
review and not a decision for the Appellate Body.23 India and Mexico indicated that
3
they were opposed in principle to NGO participation in WTO proceedings.' 2
The Appellate Body also enunciated its authority to accept amicus curiae briefs in
May 2000 in Lead andBismuth II:

In considering this matter, we first note that nothing in the DSU or the WorkingProcedures specifically
provides that the Appellate Body may accept and consider submissions or briefs from sources other than
the participants and third participants in an appeal. On the other hand, ncithcr the DSU nor the Working
Procedures explicitly prohibit[s] acceptance or consideration of such briefs .... [Article 17.9233] makes
clear that the Appellate Body has broad authority to adopt procedural rules which do not conflict with any
rules and procedures in the DSU or the covered agreements. Therefore, w e are of the opinion that as long
as we act consistently with te provisions of the DSU and the covered agreements, we have the legal
authority to decide whether or not to accept and consider any information that we believe is pertinent and
23
useful in an appeal.

221While the United States' support was strong, Hong Kong, China was lukewarm: see ibid., pp. II
and 16.
221 Ibid.: Thailand, pp. 2 3;Pakistan, p.5;Malaysia, p.7;India, p.7;Brazil, p. 12; and Japan, p. 17.
221 Ibid.: Thailand, p.3;Pakistan, p.5;Malaysia; India, p.10' Brazil, p.13' and Japan, p.17. DSU,Art.
19.2 states: "In accordance with paragraph 2 of Article 3. in their findings and recommendations, the panel
and Appellate Body cannot add to or diminish the rights and obligations provided in the covered agree-
ments."
21 Ibid.: Brazil, p.12; Japan, pp. 16-17. See also Hong Kong, China, p.16.
231 Ibid.: Thailand, p.2;Brazil, p. 13. See also Hong Kong, China, p.16.

232Ibid., p. 10 (India: "With regard to amicus briefs, the Appellate Body had appeared to have let itself
to be overawed by the campaign of NGOs of major trading entities. India had consistently maintained that
NGOs had a useful role to play in their respective countries but in the WTO, which was characterised by a
contractual relationship between governments, NGOs could not have a direct role"); and p.14 (Mexico: "The
Appellate Body's findings ...that non-requested information might be included in the dispute .. paved the
way for diverse groups not related to the WTO to become active participants in proceedings, with the result
that cases would be discussed at a political level at the expense of argumentation of a legal nature.")
21 DSU. Art. 17.9 provides: (Procedures fbrAppellate Review) 'Vorking procedures shallbe drawnup

by the Appellate Body in consultation with the Chairman of the DSB and the Director-General, and com-
municated to the Members fbr their information."
2'1United Stores Imposition of CountervailingDuties on Certain Hot-Rolled Lead and Bismuth Carbon
SteelProducts Originatingin the UnitedKingdom, Report ofthe Appellate Body W DS 138tAB/R, 10 May
2000, §39.
 LANCE BARTHOLOMEUSZ

In Lead and Bismuth II the Appellate Body "drew a distinction between, on the one
hand, parties and third parties to a dispute, which have a legal right to participate in
panel and Appellate Body proceedings, and, on the other hand, private individuals and
organizations, which are not Members of the WTO, and which, therefore, do not have
a legal right to participate in dispute settlement proceedings.1 23 The Appellate Body
said:

We wish to emphasize that in the dispute settlement system of the WTO, the DSU envisages participa-
tion in panel or Appellate Body proceedings, as a matter of legal tight, onlyby parties and third parties to
a dispute. And, under the DSU, only Members of the WTO have a legal right to participate as parties or
third parties in a particular dispute....
Individuals and organizations, which are not Members of the WTO, have no legal right to make sub-
missions to or to be heard by the Appellate Body. The Appellate Body has no legal duty to accept or con-
sider unsolicited amicus curiae briefs submitted by individuals or organizations, not Members of the
WTO. The Appellate Body has a legal duty to accept and consider only submissions from WTO Members
3
which are parties or third parties in a particular dispute. 1

Ultimately, in rendering its decision, the Appellate Body did not find it necessary to
take into account the two amicus briefs which had been filed by American industry
2 7
associations. 1

WTO Members once again criticized the Appellate Body's decision in relation to
amicus participation. At the DSB meeting to consider the Appellate Body's report in
Lead and Bisimuth II, 14 of the 16 Members that spoke criticized the decision in some
way, one (Australia) did not express a view about the decision but suggested that the
Members ought to discuss the issue, and just one, the United States, gave unqualified
support. 23s
Many Members questioned whether the "general authority under Article 17.9 of the
DSU to draw up working procedures provided a sufficient legal basis for the Appellate
Body to accept and consider ainicus curiaebriefs."239 A number of Members reiterated
that the issue of whether amicus curiae briefs should be permitted and, if so, under
what conditions, was of such critical and systemic concern that the Members, and only
24
the Members, should address the issue and clarify the DSU rules.
Ecuador expressed a policy concern about the particular effect on the developing
world of amicus curiaeparticipation in WTO proceedings:

The Appellate Body's decision was not only inconsistent with the DSU but also ran a risk of causing dam-
age to developing countries, in particular to those that had limited resources to participate actively in
the DSB's proceedings. In Ecuador's view, the difficult situation of developing countries would further

5 European Comm unities Trade Description o.1Sardines, Report of the Appellate Body,
WT/DS231 iAB/R, 26 September 2002, § 158.
2r1 Lad andBismothli, cited at note 234, §§ 40-41.

237]bid., §42.
238 Dispute Settlement Body, Minutes of Meeting held on 7 June 2000, WT/DSB/M/83, 7 July 2000.
21 Ibid.: Canada at 4. See also Japan at 4; Argentina at 4; Hong Kong, China at 5; India at 6; and Pakistan
at7 8.
24oIbid: Canada at 4 Japan at 4; Hungary at 5; and the Philippines at 6.
 THE AMICUS CURIAE BEFORE INTERNATIONAL COURTS AND TRIBUNALS

deteriorate if their scarce resources were to be spent to examine and react to amicus curiaebriefs that the
Appellate Body considered to be relevant to an appeal, even when such briefs were unsolicited.41

Perhaps reacting to the criticism of some Members that the Appellate Body in Lead and
Bismuth I had not provided guidance for the participation of amici curiae, 4' the
Appellate Body elaborated guidelines during proceedings in late 2000 in 4sbestos'243
In the 4sbestos proceedings, the Panel had received five written submissions from
NGOS, two of which it took into account. The Appellate Body consulted the parties
and third parties about a possible ad hoc procedure to manage anticipated non-party
submissions on appeal. Canada, European Communities and Brazil considered that
issues pertaining to any such procedure should be dealt with by the WTO Members
themselves. The US welcomed adoption of a request for leave procedure, and
Zimbabwe did not oppose its adoption. Without prejudice to their positions, Canada,
the EC and the US each made a number of suggestions regarding any such procedure
44
that might be adopted.2
Following these consultations, on 7 November 2000, the Appellate Body adopted
an "additional procedure to deal with written submissions received from non-parties"
(the ad hoc procedure). The same day the procedure was communicated to the parties
and third parties in the appeal. The next day the Appellate Body Chairman informed
the DSB Chairman of the additional procedure adopted, and his letter was circulated,
for information, as a dispute settlement document to the WTO Members. 24' In that
communication, the Chairman of the Appellate Body stressed:

... This additional procedure has been adopted by the Division hearing this appeal fbr the purposes of
this appeal only pursuant to Rule 16(1) of the Mrng Prcedtresfor Appellate Review, and is not a new
working procedure drawn up by the Appellate Body pursuant to paragraph 9 of Article 17 of the
4 "
Understandingon Rules and Procedtres Governing the Settm ent of Dpittes.

The ad hoc procedure was posted on the WTO website on 8 November 2000 and e-
mailed to subscribers to the WTO's NGO Bulletin. The adoption and publication of the
ad hoc procedure caused a stir among WTO Members, which will be discussed below.
But first the procedure that caused the controversy should be described.
Amongst the am icus procedures adopted by international courts and tribunals, the
ad hoc procedure is perhaps the most detailed as to the nature, borm and content ofami-
cus participation .247 Accordingly, it is worth setting it out in full:

24t Ibid., §25.

242 Ibid.: European Communities, p. 6; Canada, p. 4; Hungary, p. 5.
213 European Communities -Measures AJfcting Asbestos and Asbestos-Containing Products,
Communication from the Appellate Body, WTiDS1359, 8 November 2000.
24" European Coniowonties -MeasuresAlecting Asbestos andAsbestos-ContaiingProducts, Report of

the Appellate Body, WTDS 135iAB/R. 12 March 2001, §50.

245 WTDS 135/9, cited at note 243.
246 Quoted in Asbestos, cited at note 244, §51.
247 The ICTY and NAFTA Free Trade Cornission have also issued relatively detailed guidelines for
amicus participation. See Part II, Chapters 4 and 6, respectively.
 LANCE BARTHOLOMEUSZ

1.In the interests o1 fairness and orderly procedure in the conduct ofthis appeal, the Division hearing this
appeal has decided to adopt, pursnant to Rule 16(1) of the Rhrking Procedures or Appellate Reviei, and
after consultations with the parties and third parties to this dispute, the following additional procedute for
purposes of this appeal only.
2. Any person, whether natural or legal, other than a party or a third party to this dispute, wishing to file
a written brief with the Appellate Body, must apply for leave to file such a brief from the Appellate Body
by noon on Thursday; 16 November 2000.
3. An application for leave to file such a written briefshall:

(a) be made in writing, be dated and signed by the applicant, and include the address and other con-
tact details of the applicant;
(b) be in no case longer than three typed pages;
(c) contain a description of the applicant, including a statement of the membership and legal status
of the applicant, the general objectives pursued by the applicant, the nature ofthe activities of the
applicant, and the sources of financing of the applicant;
(d) specify the nature of the interest the applicant has in this appeal;
(e) identify the specific issues oflaw covered in the Panel Report and legal interpretations developed
by the Panel that are the subject of this appeal, as set ftth in the Notice ofAppeal (WT/DT S135/8)
dated 23 October 2000, which the applicant intends to address in its written brief,
(1) state why it would be desirable, in the interests of achieving a satisfactory settlement of the mat-
ter at issue, in accordance with the tights and obligations of WTO Members under the DSU and
the other covered agreements, for the Appellate Body to grant the applicant leave to file a writ-
ten brief in this appeal; and indicate, in particular, in what way the applicant will make a contri-
bution to the resolution of this dispute that is not likely to be repetitive of what has been already
submitted by a party or third party to this dispute; and
(g) contain a statement disclosing whether the applicant has any relationship, direct or indirect, with
any party or any third party to this dispute, as well as whether it has, or will, receive any assis-
tance, financial or othetnise, from a party or a third party to this dispute in the preparation of its
application for leave or its written brief.
4. The Appellate Body will review and consider each application for leave to file awritten brief and will,
without delay, render a decision whether to grant or deny such leave.
5. The grant of leave to file a brief by the Appellate Body does not imply that the Appellate Body will
address, in its Report, the legal arguments made in such a brief.
6. Any person, other than a party or a third party to this dispute, granted leave to file a written biefwith
the Appellate Body, must file its brief with the Appellate Body Secretariat by noon on Monda; 27
November 2000.
7. A written brief filed with the Appellate Body by an applicant granted leave to file such a brief shall:

(a) be dated and signed by the person filing the brief,

(b) be concise and in no case longer than 20 typed pages, including any appendices; and
(c) set out a precise statement, strictly limited to legal arguments, supporting the applicant's legal
position on the issues of law or legal interpretations in the Panel Report with respect to which the
applicant has been granted leave to file a written brief.

8. An applicant granted leave shall, in addition to filing its written brief with the Appellate Body
Secretariat, also serve a copy of its brief on all the parties and third parties to the dispute by noon on
Monday 271 ovember 2000.
9. The parties and the third parties to this dispute will be given a full and adequate opportunity by the
Appellate Body to comment on and respond to any nritten brief filed with the Appellate Body by an appli-
4
cant granted leave under this procedure} 1

WTiDS135/9,
N4 cited at note 243.
 THE AMICUS CURIAE BEFORE INTERNATIONAL COURTS AND TRIBUNALS

Several aspects of this procedure deserve comment: the short deadlines; the maximum
length of leave requests and briefs, the high threshold for granting leave: the nature of
the applicant and its relationship with the parties; the Appellate Body's consideration
of the amicus brief: the restriction of the amicus brief to legal arguments; and the right
of parties to respond to amicus briefs.
" Short deadlines. The deadline for filing requests for leave was eight days after the
procedure has been posted on the WTO website. Applicants had to be prepared to
submit a full written brief 11 days after the deadline for filing a leave request.
Although WTO proceedings are conducted according to tight deadlines, as some
States commented, these deadlines are too short and NGOs from developing coun-
249
tries are particularly unlikely to submit timely requests.
SMaaxinun length of leave requests and briefs. Leave requests cannot exceed three
pages and full briefs cannot exceed 20 pages. The Appellate Body no doubt imposed
such limits so that it could consider the many requests expeditiously. Considering the
background information that is required about the applicant (§3(c)), an applicant will
not have more than two pages to justify its request. Perhaps fortunately for applicants
the WTO does not specify the minimum font size and line spacing and maximum
margins, unlike some of the US municipal court procedures that perhaps inspired the
50
drafters of the procedure.2
" Thresholdforgranting leave. The threshold fixed by the Appellate Body to grant
amicus participation is very high, and perhaps impossibly so. Applicants are asked
to indicate how they would make submissions that would not be repetitive of what
had been submitted by a party or a third party (§3(f)). As India has noted, it is difficult
to "understand how any applicant for leave to file could respond to this requirement,
unless the applicant had access to submissions of parties or third parties.125' And the
Appellate Body has refused to accept amicus briefs where applicants have had
2 2
prior access to a party's submissions. 5
Natureof the applicantand its relationshipwith theparties.The applicant must dis-
close any relationship with, or assistance from, a party (§3(g)). The Appellate Body
wishes to determine whether an applicant is likely to be a friend of the court more
than just a friend of a party. To be more friend of a party than friend of the court is
not necessarily fatal to participation. Presumably, if a party adopts the applicant's
submissions, then no application is necessary under the ad hoc procedure. Brazil was
"concerned with the notion that panels and the Appellate Body would be deciding
who had a right to file written briefs on the basis of the applicant's membership, legal
status, objectives, interests, nature of activities, sources of financing, or relationship

249 Compare Cruz Iglesias, "Las comunicacioncs amnicus curiae cn elMecanismo de Solucion de

Diferencias de laOrganizacion Mundial del Commercio: el asunto ainianto", Revista espatiolde derecho
internacional, Vol. 54, 2002, pp. 159 179, atp. 169.
210 See, fbr example,Rules of the Supreme Court of the United States, adopted on 27 January 2003, Rules

33.1 and 37.

251WT/GCM60, cited at note 211. §36.
21' Thailand Anti-Dumping Duties on Angles, Shapes and Sections of Iron or Non-Alloy Steel and
H-BeamsIkom Poland,Report of the Appellate Body, WT/DS 122,/AB/R, 12 March 2001, §§62 78.
 LANCE BARTHOLOMEUSZ

with parties or third-parties to the dispute [that is, §3(c), (g)]. If jurisprudence
advanced in this direction, the dispute settlement mechanism could soon be con-
taminated by political issues that did not belong to the WTO, much less to its dis-
2 3
pute settlement mechanism.' 5
" The Appellate Body ' consideration of the amicus brief Grant of leave does not
imply that the Appellate Body will address, in its Report, the legal arguments made
in such a brief (§5). Thus the parties remain in a better position because the report
almost invariably addresses all their legal arguments.
" Restriction of the amicus brief to legal arguments. It is consistent with the Appellate
Body's function of determining appeals on issues of law only that amicis briefs are
"strictly limited to legal arguments" (§7(c)).
" Right ofparties to respond to amicus briefs. Consistent with practice in other inter-
national courts and tribunals, "parties and the third parties to this dispute will be
given a full and adequate opportunity ... to comment on and respond to any writ-
ten brief". (§9) This procedure affords the parties some due process. But, as
Uruguay, among other States, complained, "this was not possible within the short
24
and mandatory time-limits which the Appellate Body had to meet in its work". 5
The ad hoc procedure communicated to the DSB Chairman caused a controversy. So
much so that, at the request of the Informal Group of Developing Countries, a special
meeting ofthe WTO General Council 255 was convened to discuss the procedure and the
issue of "whether persons or organizations which were not Members of the WTO
should have any input into dispute settlement cases." The discussions came at a time
when the eight panel proceedings and three appellate proceedings had raised the issue
25 7
of handling of amicus curiae briefs. " After touching on the issue at a DSB meeting,
2

WTO Members discussed within the General Council the principles and systemic ele-
ments underlying the issue of amicus particupation in light of the Asbestos ad hoc pro-
1
cedure in detail at the General Council extraordinary meeting on 22 November 2000.25
The record of discussions at the General Council constitutes a rich source of States'
views about amicus participation in WTO proceedings. Later, in Part III (General
Conclusions), this paper will refer to statements by specific States made at this
meeting. For present purposes it is sufficient to set out little more than the Chaimian's
summing up:

114. Second, alnost all delegations had made comnnts on the question of whether the Appellate Body
or panels should receive or solicit amicus briefs. There was abroad agreement that the rights and obli-
gations under the DSU belonged to WTO Members. It had been repeatedly stated that the WTO was a

251WT/GC/Ni60,cited atnote 211. §46.

I14 §7. See also §27 (Hong Kong, China), and § 100 (Chile).
]bid.,
255 The General Council is the WTO's highest legislative and policy authority in the intervals between

Ministerial Conferences and, under Article IX.2 of the Agreement Establishing the WTO,has "the exclu-
sive authority to adopt interpretations of this Agreement and of the Multilateral Trade Agreements."
251Dispute Settlement Body, Minutes of Meeting Held on 17 November 2000, WTiDSB/Mi92,
15 January 2001, §127.
7 ]bid.. pp. 24 26.
258WTiGC/M/60,cited at note 211.
 THE AMICUS CURIAE BEFORE INTERNATIONAL COURTS AND TRIBUNALS

Member-driven organization. Therefore, most delegations had concluded that since there was no specific
provision regarding atncus briefs such briefs should not be accepted. Some delegations were of the view
that atncus briefs could be used insome cases and there was at least one delegation who believed that
there was both a legal and a substantive reason to use amnicus briefs.fliere was no agreement on this point.
115. Third, many Members had made reference to the shrimp case and the decision to interpret Article
13 of the DSU in such a way so as to accept anicus briefs. The majority of delegations had stated that
they did not agree with that decision which served as a basis Inr subsequent decisions on amnicus briefs
by panels and the Appellate Body. At the same time, at least one delegation had stated that there was noth-
ing wrong with that kind of procedure.
116. Fourth, there was the question ofxwhether the decision of the Appellate Body in the present case, was
of a procedural or a substantive nature. The majority of delegations were of the view that it was a sub-
stantive decision, while some delegations believed that this was a procedural one.
117. Filth, many Members had also made comments on the Secretariat's action to put on the WTO web-
site the communication from the Appellate Body to the Chairman of the DSB. It had been stated that the
Secretaiat's action amounted toan invitation, although he was not sure whether it had been meant tobe
that in the firstplace. The point had also been made that there was an inherent discrimination in as much
as the communication from the Secretariat had gone out only to those NGOs who subscribed to the WTO
system.
118. Finally, many Members had made the point that the issue under discussion was not a transparency
issue, but rather a legal issue and concerned the question of who should participate in the legal system.
119. He believed that most of the points that he had just outlined had been raised by practically all dele-
gations who had spoken at the present meeting. On this basis, he wished to draw some conclusions. First,
he believed that there had been a large sentiment expressed by almost all delegations that there was a need
to consider whether it would be possible to put in place clear rules for amicus briefs. There might not be
absolute unanimity on that point, but the majority of delegations had stated that the Appellate Body and
the system would benefit from clearer rules. Further consultations would be required on both the sub-
stantive content of the rules and what procedure should be used for putting them in place.
120. Second, in light of the views expressed and in the absence of clear rules, he believed that the
Appellate Body should exercise extreme caution in future cases until Members had considered what rules
29
were needed. '

Some four months after the General Council's extraordinary meeting to discuss the
4sbestos ad hoc procedure, the Appellate Body delivered its report in 4sbestos.26
The Appellate Body received 17 requests to participate pursuant to the ad hoc pro-
cedure, all of which were rejected. Six of these requests were rejected because they
were received late. The remaining 11 were rejected because of a "failure to comply
sufficiently with all the requirements set lorth in paragraph 3 of the Additional
Procedure".'i As Stern has suggested, this was barely an explanation; although the
door to anici seemed wide open, this attitude indicates that the impression was mis-
taken. 262 Subsequent dismissals ofarnicus briefs, simply on the basis that the Appellate
Body "did not find it necessary" to take them into account, indicate that Stem's assess-
ment remains accurate .'3The timely requests originated from persons and organiza-
tions primarily from Western countries. But requests were also made by NGOs from
less developed countries such as India. And prior to adoption of the ad hoc procedure

259WT/GCMi60,cited at note 21,L§§114 120.

WT/DS135/ABiR, cited at note 244.
211
26Ibid., §56.
212Stern, cited at note 216, at p.271.
263See, for example, Etropean Communities Export Subsidies on Sugar,Report of the Appellate Body,
WT/DS265/AB/R, WT/DS266/AB/R, WT/DS283/ABiR,28 April 2005, §9.
 LANCE BARTHOLOMEUSZ

the Appellate Body had received requests to accept amicus briefs from NGOs, mainly
industry associations, that were predominantly from developing countries, for exam-
4
ple, Thailand, Sri Lanka, India, Colombia and Senegal.26
In 2002 the Appellate Body faced a novel issue in Sardines: could a WTO member
State participate in proceedings as amicus curiae?261 The Body decided that such a
State could do so. But its rights would be those of other amici curiaeand different from
those it would have had had it participated pursuant to the DSU as a third-party par-
ticipant, that is, pursuant to Articles 10.2 and 17.4 of the DSU.26( The Appellate Body
did not believe that this explicit right of participation accorded to WTO members
justified treating them differently from non-WTO Members in the exercise of its
authority to receive amicus curiae briefs. In the end the Appellate Body did take into
account the amicus brief submitted by Morocco, but only to the extent of certain legal
2 6
7
submissions.
With some prescience, at the November 2000 WTO General Council meeting,
Egypt predicted that "while the [Appellate Body] pledged that the [ad hoc] decision
was for the purpose of the asbestos appeal only, it introduced an additional procedure
which, if allowed to apply, would certainly create pressure for future cases and might
in fact set a precedent or jurisprudence.1 268 Indeed the influence of the WTO's ad hoc
procedure and related jurisprudence has spread beyond the WTO, as we will see as we
turn to examine amicus curiae participation in arbitral proceedings conducted by
NAFTA and ICSID tribunals.

24 The Appellate Body described these submissions as fbllows: 'The Appellate Body received 13 writ-
ten submissions from non-governmental organizations relating to this appeal that wcrc not submitted in
accordance with the Additional Procedure. Several of these were received while we wcrc considering the
possible adoption of an additional procedure. After the adoption of'the Additional Procedure, each of these
13 submissions was returned to its sender,along with aletter informing the sender of the procedure adopted
by the Division hearing this appeal and a copy of the Additional Procedure. Only one of these associations,
the Korea Asbestos Association, subsequently submitted a request for leave in accordance with the
Additional Procedure." (§53). The Appellate Body lists the names and countries ofeach entity that submitted
an amicus brief or request atnotes 30 to 33 of its rcport.
15 WTiDS23 IiAB/R, cited at note 235.
21,DSU, Art. 10.2 provides: "Any Mcnber having a substantial interest in a matter before a panel and
having notified its interest to the DSB (refcrrcd to in this Understanding as a "third party") shall have an
opportunity to be heard by the panel and to make written submissions to the panel. These submissions shall
also be given to the parties to the dispute and shallbe reflected in the panel report."
DSU, Art. 17.4 provides: "Only parties to the dispute, not third parties, may appeal apanel report. Third
parties which have notified the DSB of a substantial interest in the matter pursuant to paragraph 2 of Article
10 may make written submissions to, and be given an opportunity to be heard by, the Appellate Body."
27 WT/DS23 I/ABiR, cited at note 235, § 170.
2 WTiGC/M/60,cited at note 211, §20. See also Hong Kong, China, §26.
 THE AMICUS CURIAE BEFORE INTERNATIONAL COURTS AND TRIBUNALS

6. Amici Curiae and arbitration: NAFTA and ICSID tribunals

6.1 Introduction

This section discusses the role of the amicus curiae in arbitrations conducted by tri-
bunals under the North American Free Trade Agreement (NAFTA) and through the
International Centre for Settlement of Investment Disputes (ICSID).
Under Chapter 11 of NAFTA, to which Canada, Mexico and the United States are
Parties, arbitral tribunals resolve investor-state disputes. Arbitrations are initiated
under either the Arbitration Rules of the United Nations Commission on International
Trade Law (UNCITRAL Rules) 2 1 9 or the (Additional Facility) Rules of the Inter-
national Centre for Settlement of Investment Disputes (ICSID Rules). Even though
NAFTA tribunals' jurisdiction is limited, their decisions have wider influence, for
example on decisions of ICSID tribunals, which also determine investor- State disputes
but in relation to a far greater number of States than NAFTA. 27

6.2 NAFTA

In 2001 two NAFTA tribunals issued important decisions about anicus curiae
participation in proceedings under the UNCITRAL rules: wethanex Corp. v. United
States, 271 and UPS (United ParcelService ofAmerica Inc.) v.Govsernment of Canada.27'
Not only did the Tribunals decide that they had power to permit such participation, they
set out the factors relevant to exercising such discretion, outlined limits to such par-
ticipation and also conmmented on the juridical nature of the amicus in NAFTA pro-
ceedings. Following these decisions, in 2003, the Free Trade Commission ("FTC")
issued a statement on "non-disputing party participation" in Chapter 11 NAFTA pro-
ceedings.273 The statement provides guidance in light of these two decisions. On the
basis of these NAFTA materials, in May 2005 an ICSID tribunal decided for the first
time that it had power to accept and consider amicus curiae submissions by non-
74
parties to the case.1

21 United Nations Commission on International Trade Law,ArbitrationRules 1976, adopted by the UN

General Assembly on 15 December 1976, TIN Doc.No.A/RES/31/98.
271As of 15 December 2002, 136 countries had ratified the Convention on the Settlement of Investment
Disputes between States and Nationals of Other States.
271 Methanex Corp. v.United States, Decision on Petitions fiom Third Persons to Intervene as 'Amnici
Curiae', 15 January 2001 ("Alethanex"). NAFTA documents referred to in this section arc available at
http://www.state.govisic3439.htm. The Tribunal members were Veeder, Rowley, and Christopher.
Following this decision the tribunal made a number of decisions relating to amicus participation. These deci-
sions and related documents are not discussed for reasons of space. See tfrther: Stern, "L'entre de la societ&
civile dans l'arbitrage entre Etat et investisseur", Revue de l'arbitrage,2002, pp. 329 345; Bjorklund, "The
Participation of Amicus Curiae in NAFTA Chapter Eleven Cases", 22 March 2002, available at
http.:/'www .dfait-maeci.gc.ca/tna-nac/documents/participate-e.pdf
27 LPS (United Parcel Sen ice ofAmerica hic.) v.Governcet of Canada. Decision of the Tribunal on
Petitions for Intervention and Participation as Amnici Curiae, 17 October 2001 ("UPS").
273Statement of the Free Trade Commission on non-disputing party participation, 7 October2003.
271 AguasArgentnas S.A and Othes v.Argentina, OrderinResponse to a Petitionfor Transparency and
ParticipationasAmieus Curiae,ICSID case No.ARB/03 19, 19 May 2005 ("Aguas').
 LANCE BARTHOLOMEUSZ

Before considering the FTC's statement, this paper considers in detail the tribunals'
decisions in Methanex and UPS.

Methanex
Following petitions from four North American-based NGOs, whose credentials the
Tribunal described as "impressive", on 15 January 2001 a NAFTA tribunal issued a
Decision on Petitions from Third Persons to Intervene as 'Amici Curiae' 215 The par-
ticipation sought by all the NGOs included the opportunity to review all parties' writ-
ten pleadings, to attend hearings and to make written and oral submissions.2- It was
the first time that amici curiaehad ever participated in arbitral proceedings under the
2
LTNCITRAL Arbitration Rules . -
The Tribunal found that nothing in Chapter 11 of NAFTA or the UNCITRAL Rules
expressly permitted, or prohibited, participation of ainicicuriae in NAFTA proceed-
ings. 27 1 In deciding that it had discretion to permit amicus curiae participation in the
proceedings before it, the Tribunal relied on its power under Article 15(1) ofthe UNCI-
TRAL Rules, which provides:

Subject to these Rules, the arbitral tribunal may conduct the arbitration in such maamer 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 Tribunal referred to the Iran-US Tribunal notes on Article 15(1) of the UNCITRAL
Rules and WTO practice, and concluded:

For present purposes, the authoritative guide to the exercise of the Iran-US Claim Tribunal's discretion
under Article 15(1) and this award demonstrate that the receipt of written submissions from a non-third
person does not necessarily offend the philosophy of international arbitration involving States and non-
2
State parties. -1

The tribunal recognized that amici curiaewere not, and could not be, parties to the pro-
ceedings and that it had no power to grant amici the same substantive right, status or
privileges of disputing parties. 2is The amicus was not permitted to adduce the evidence
of any factual or expert witness. As in WTO proceedings, the Tribunal recognized that
a party could adopt a third party's submissions as part of its own and in this case the
other party would be obliged to respond to the submissions."'
The Tribunal distinguished amici friom experts in the context of NAFTA
proceedings:

"I Methanex, cited note 271, §48. The NGOs were: the International Institute for Sustainable
Development (IISD); the Communities for a Better Environment (CBE); the Blue Water Network of the
Earth Island Institute (Ett); and the Center for
International Environmental Law. The latter thieejointly peti-
tioned the Tribunal.
271_4ehonex, cited note 271. §7.
277_4ehon, cited note 271. § 13.
2le7hanex, cited note 271, §24.
271erhonc. cited note 271, §32.
2 lethaner. cited note 271, §§27, 30. 33.
21 Mehanex,cited note 271, §36.
 THE AMICUS CURIAE BEFORE INTERNATIONAL COURTS AND TRIBUNALS

Amici arc not experts; such persons arc advocates (in the non-pcerorativc sense) and not 'independent' in
the sense that they advance a particular case to a tribunal. 2

The Tribunal held that it had power to accept written amicus submissions. (Relying on
this finding, later in the proceedings, the Tributal permitted amicus participation in the
form of written briefs from two NGOs.) 2t 3 It rejected the petitioners' request to attend
oral hearings because, under Article 25(4) of the UNCITRAL Rules, hearings were in
camera unless both disputing parties consented and one party had not. The Tribunal
also held that it had no power to accede to the third parties' request for access to doc-
uments generated within the arbitration. This was a matter for the parties rather than
2
the Tribunal . 4
In setting out the factors relevant to exercise of its discretion to permit amicus curiae
participation in the proceedings, the Tribunal referred to public interest in the partic-
ular proceedings and public interest in transparency of NAFTA Chapter 11 proceed-
ings generally2t 5 In reaching this part of its decision the Tributal maintained:

This Tribunal can set no legal precedent in general or at all. It has no power to determine for other arbi-
tnation tribunals how to interpret Article 15(1); and in a later arbitration, there maybe other circumstances
leading that tribunal to exercise its discretion differently. For each arbitration, the decision must be made
2
by its tribunal in the particular circumstances of that arbitration only. 6

This statement rather understates the significance of the decision insofar as it deter-
mines that a NAFTA tribunal has power under Article 15 of the UNCITRAL Rules
to permit anici curiae to participate in NAFTA proceedings. The later decision of
another NAFTA tribunal in UPS reinforces this observation, and it is to this case that
we turn now.

UPS
On 17 October 2001, about 10 months after the Methanex decision relating to amici
curiaewas delivered, another NAFTA tributal issued its Decision of the Tribunal on
2 7
Petitions for Intervention and Participation as Amici Curiae. 1
UPS, a US parcel delivery service provider, had submitted claims against Canada
that the state-entity Canada Post engaged in anti-competitive practices. A Canadian
employees' umion, the Canadian Union of Postal Workers (the Union), and a Canadian
public interest group, the Council of Canadians (the Council), petitioned the Tribunal,
requesting standing as parties the proceedings, or, should that be denied, the right to
intervene as amicus curiae but with the full right to present and test any evidence
adduced in the proceedings. More specifically, the Union and the Council requested
disclosure of documents generated in the arbitration and the right to make submissions

212 Methanex, cited note 271, §38. See also US submissions about the distinction at §20.
2 Sce Alethanex Corp. v. UnitedStates. Orderon Amicus, 6 April 2004.
211 Methanex, cited note 271. § §42, 47.
215 Methanex, cited note 271, §§49, 50.
26 Methanex, cited note 271. §51.
211 The membcrs of thc Tribunal were: Justice Kcnncth Keith (Chairman), Dean Ronald A Cass; and
L. Yves Fortier CC, QC.
 LANCE BARTHOLOMEUSZ

about the place of arbitration, the Tribunal's jurisdiction and the arbitrability of the
matters raised by UPS. The disputing parties opposed intervention by the Union and
the Council.
The Tribunal rejected the Union and Council's application to become parties to the
arbitration, stating that Article 15(1) of the UNCITRAL Rules did not grant it that
power. In doing so it distinguished between an amicus curiae and a party:

As a procedural provision... [Article 15(1)] cannot grant the Tribunal any pow er to add further disput-
ing parties to the arbitration, nor to accord to persons who are non-parties the substantive status, rights
or privileges of a Disputing Party....
The Tribunal is required to decide a substantive dispute between the Claimant and the Respondent. The
Tribunal has no mandate to decide any other substantive dispute or any dispute determining the legal rights
of third persons. The legal boundaries of the arbitration are set by this essential legal tact. It is thus self-
evident that if the Tribunal cannot directly, without consent, add another person as a party to this dispute
or treat a third person as a party to the arbitration or NAFTA, it is equally precluded from achieving this
result indirectly by exercising a power over the conduct of the arbitration. Accordingly, in the Tribunal's
view, the power under Article 15(1) must be confined to procedural matters. Treating non-parties as
Disputing Parties or as NAFTA Parties cannot be matters of mere procedure; and such matters cannot fall
within Article 15(1) of the UNCITRAL Arbitration Rules.2

The Tribunal followed the decision in Methanex to the effect that Article 15(1) of the
LTTCITRAL Rules, read in context, conferred power on it to permit amici curiae par-
ticipation in proceedings before it. It further underlined the differences between an aini-
cus and a party, pointing out in particular that amicus participation "is a matter of [the
Tribunal's] power rather than of third party right". It also stated that "The rights of the
disputing Parties are not altered (although in exercise of their procedural rights they
will have the rights to respond to any submission) and the legal nature of the arbitra-
tion remains unchanged." 2 '
The Tribunal also set out procedural limits on amici participation that it considered
desirable in view of the "requirement of equality and the parties' right to present their
cases" under Article 15(1):

The requirement of equality and the parties' right to present their cases do limit the power of the Tribunal
to conduct the arbitration in such manmer as it considers appropriate. That power is to be used not only
to protect those rights of the parties, but also to investigate and determine the matter subject to arbitra-
tion in a just, effcient and expeditious manner. Thc power of the Tribunal to permit amnicus submissions
is not to be used in a way which is unduly burdensome for the parties or which unnecessarily complicates
the Tribunal process. The Tribunal envisages that it will place limits on the submissions to be made in writ-
ing in terms for instance of the length. The third parties would not have the opportunity to call witnesses
(given the effect of article 25(4)) with the result that the disputing parties would not face the need to cross-
examine them or call contradictor evidence. The parties would also be entitled to have the opportunity
to respond to any such submissions.21

The Tribunal also found relevant to its decision considerations of the public interest in
NAFTA proceedings, in particular the proceedings before it, as well as the broader

21 UPS. cited note 272, §39.

2 LPS. cited note 272, §61.
P.tPS, cited note 272, §69.
 THE AMICULS CURIAE BEFORE INTERNATIONAL COURTS AND TRIBUNALS

"value of greater transparency for proceedings such as these. Such proceedings are not
now, if they ever were, to be equated to the standard run of international commercial
29
arbitration between private parties." '
The Tribunal rejected the Union and Council's request to make submissions about
its jurisdiction and the place of arbitration, primarily on the basis that "the parties are
fully able to present the competing contentions and in significant degree have already
29 2
done so." '
AAFTA Free Trade Commission statement of 7 October 2003
Following the decisions in Methanex and UPS discussed above, the NAFTA Free
Trade Commission produced a statement on 'non-disputing party participation' in
NAFTA proceedings.' 93 The Commission comprises cabinet-level representatives of
the Parties, Canada, Mexico and the United States, or their designees and ordinarily
makes decisions by consensus. 29 4 The statement was issued on 7 October 2003 and
addresses spontaneous or uninvited submissions. The legal basis for accepting, in prin-
ciple, such participation is set out in the statement: "no provision of [NAFTA] limits
a tribunal's discretion to accept written submissions from a person or entity that is not
a disputing party".
Participation is limited to a "person of a Party" or a person "that has a significant
presence in the territory of a Party", that is, a natural or legal person who is either a
national of or has a significant presence in, Canada, Mexico or the United States. When
exercising its discretion, the tribunal considers, among other things, the extent to
which:

(a) the non-disputing party submission would assist the Tribunal in the determination of a factual or legal
issue related to the arbitration by bringing a perspective, particular knowledge or insight that is different
from that of the disputing parties;
(b) the non-disputing party submission would address matters within the scope of the dispute;
(c) the non-disputing party has a significant interest in the arbitration; and
(d) there is a public interest in the subject matter of the arbitration.

The tribunal has explicit discretion to permit participation and to address any written
submission in the arbitration. Even though disputing parties have the right to respond
in writing to amicus curiae submissions, the non-disputing parties have no right of
reply.
The NAFTA FTC statement is clearly influenced by the WTO ad hoc procedure for
participation of amicus curiae adopted in the Asbestos case and discussed earlier. There
is a similar two-step process: first persons must file a short (5 page maximum)
application to for leave to submit; then if leave is granted, the amicus brief is submitted.
The application for leave to submit similarly requires details about the prospective

L2IPS, cited note 272, §70.

2 2 LIPS, cited note 272, §71.
2" For further discussion of the FTC statement, see: Muphy, "Contemporary Practice of'the United States
NAFTA Commission Statement on Amicus Curiae Participation in Arbitration", American Journal of
InternationalLaw,Vol. 98, 2004, pp. 841 842.
221 NAFTA, Art. 2001.
 LANCE BARTHOLOMEUSZ

participant's affiliation with the disputing parties and its source of funding for the sub-
mission. Clearly, NAFTA shares the WTO Appellate Body's concern to verify that the
person will be more a friend of the court than a friend of a disputing party. Written sub-
missions are similarly limited to 20 pages.
The current procedure only envisages written submissions. This is because under
LTNCITRAL Rules hearings are in camera unless the disputing parties agree otherwise.
To permit amicus participation in the hearing would require a change to UNCITRAL
Rules or the parties' consent. As we shall see shortly, faced with this limitation in
ICSID proceedings, the ICSID Secretariat is considering a change to the relevant
ICSID rules.

6.3 ICSJD

In May 2005 an ICSID tribunal decided for the first time that, in principle, amici curiae
could participate in ICSID tribunal proceedings under the ICSID Additional Facility
Rules. 295 Five NGOs applied for leave to be present at the hearings, present legal argu-
ments as amicus curiae, and have access to all of the documents in the case. As the
Tribunal recognized, "[the purpose in seeking access to the record is to enable a non-
party to act as amicus curiaein a meaningful way". 296 The claimant opposed the appli-
cation but Argentina approved of it. The Tribunal denied the request to attend the
hearings because, in the absence of one party's consent, ICSID Rule 32(2) prevented
the Tribunal from allowing access."'
The Tribunal defined what it understood to be an amicuLs curiae as: "a friend of the
court recognized in certain legal systems and more recently in a number of inter-
national proceedings. In such cases, a nonparty to the dispute, as 'a friend,' offers to
provide the court or tribunal its special perspectives, arguments, or expertise on the dis-
pute, usually in the form of a written amicus curiae brief or submission.'" 98 It
considered that it was in a position similar to that of NAFTA tribunals: there was no
provision of the ICSID Convention or relevant rules that expressly authorized or pro-
hibited amicus participation. Article 44 of the ICSID Convention gave the Tribunal
similar powers to that of a NAFTA tribunal under Article 15(1) of the UNCITRAL
Rules. 299 Thus, if there were a "procedural question", the Tribunal could decide it.
Adopting the NAFTA Tribunal's comments in Methanex about the difference between
a party and an amicus curiae,the ICSID Tribunal "unanimously concludes that Article

21Agnas, cited note 274. The Tribunal consisted ofProfessors Salacuse, Kautinam-Kohlcr and Nikken.
"6 Aguas, cited note 274, §31. The NGOs' petition is available at http://www.ciel.org/Taei
Suez ICSID 8Feb05.html.
217Aguas, cited note 274, §§4 7. ICSID Rule 32(2) provides: "The tribunal shall decide, with the con-
sent of the parties, which other persons besides the parties, their agents, counsel and advocates, witnesses
and experts during their testimony, and officers of the Tribunal may attend the hearings."
21 Aguas, cited note 274, §8.
21 ICSID Convention, Art. 44 provides: "Any arbitration proceeding shall be conducted in accordance
with the provisions of this Section and, except as the parties otherwise agree, in accordance with the
Arbitration Rules in effect on the date on which the parties consented to arbitration. If any question of
procedure arises which is not covered by this Section or the Arbitration Rules or any rules agreed by the
parties, the Tribunal shall decide the question."
 THE AMICUS CURIAE BEFORE INTERNATIONAL COURTS AND TRIBUNALS

44 of the ICSID Convention grants it the power to admit amices curiae submissions
535
from suitable nonparties in appropriate cases."'
The Tribunal decided that, based on a review of amicus practices in other jurisdic-
tions and forums, the conditions for amincus admission:

should depend on three basic criteria: a) the appropriateness of the subject matter of the case; b) the suit-
ability of a given nonparty to act as amicus curiae in that case, and c) the procedure by which the amicus
submission is made and considered. Thc Tribunal believes that the judicious application of these criteria
will enable it to balance the interests of concerned nondisputant parties to be heard and at the same time
protect the substantive and procedural rights of the disputants to a fair, orderly, and expeditious arbitral
process. !

The Tribunal indicated that it was not sufficient that the dispute involved the legality
of an action under international law and the international responsibility of a State, for
these elements were present in all ICSID investment treaty arbitrations. There had to
be something more for the public interest to justify amices participation. In this case
the tribunal identified the additional factor to be considered as follows:

The factor that gives this case particular public interest is that the investment dispute centers around the
water distribution and sewage systems of a large metropolitan area, the city of Buenos Aires and
surrounding municipalities. Those systems provide basic public services to millions of people and as a
result may raise a variety of complex public and international law questions, including human rights
considerations .02

The Tribunal also saw that there was an interest in transparency:

The acceptance of amieus submissions would have the additional desirable consequence of increasing the
transparency of investor-state arbitration. Public acceptance of the legitimacy of international arbitral
processes, particularly when they involve states and matters of public interest, is strengthened by
increased openness and increased knowledge as to how these processes function. It is this imperative that
has led to increased transparency in the arbitral processes of the World Trade Organization and the North
American Free Trade Agreement. Through the participation of appropriate representatives of civil soci-
S
ety in appropriate cases, the public will gain increased understanding of ICSID procsses

Considering the purpose of an amicns submission, the Tribunal considered that an ami-
cus should demonstrate that it had sufficient expertise and was independent. 31 4 The
ICSID tribunals' requirements for aminccs participation draw on, and substantially
reflect those in the FTC statement discussed above. The Tribunal granted the

30o Aguas, citednote 274, §16.

"I Aguas, cited note 274, §17. The Tribunal did not find it necessary to elaborate on criteria (b) and (c)
at this stage of its proceedings.
302 Aguas, cited note 274, §19.
"o Aguas, cited note 274, §22.
301 Agtias, cited note 274, §24: "The purpose of amics submissions is to help the Tribunal arrive at a cor-
rect decision by providing it with arguments, expertise, and perspectives that the parties may not have pro-
vided. The Tribunal will thcrcfore only accept aminus submissions from persons who establish to the
Tribunal's satisfaction that they have the expertise, experience, and independence to bc of assistance in this
case."
 LANCE BARTHOLOMEUSZ

petitioners an opportunity to apply for leave to file an amicus brief and deferred their
decision about access to documents until an approved non-party applied for such
access.
Prior to the ICSID tribunal's decision inAguas, the ICSID Secretariat had been con-
sidering possible changes to the ICSID Rules relating to access of nonparties to ICSID
3
proceedings. The issue was first raised in a discussion paper issued in October 2004. 11
Most recently, one week before the decision in Agzas, the Secretariat issued a work-
ing paper seeking further comments on proposed changes to the rules. 06 This work-
ing paper suggests that "it could be useful to have hearings open to persons other than
those directly involved in the proceeding." The suggested changes to Rule 32 of
the ICSID Rules would mean that, to allow non-parties to attend or observe hearings,
the tribunal would have to consult the parties but would not require their consent.? - The
working paper also suggests adding a paragraph to ICSID Rule 37 to "make clear that
ICSID tribunals may accept and consider written submissions from a non-disputing
person or a State, after consulting both parties as far as possible." Unsurprisingly, the
criteria for accepting such submissions closely reflect the ICSID decision in Aguas:
"The tribunal would have to be satisfied that any such submissions would assist the tri-
bunal in the determination of a factual or legal issue within the scope of the dispute,
that the non-disputing party has a significant interest in the dispute and that this would
308
not disrupt the proceeding or unfairly burden either party.1

6.4 Conchdingremarks

Prior to 2001 amicus participation in international arbitration was unknown. Since

then, influenced primarily by developments in the WTO, NAFTA and ICSID tri-
bunals have permitted amicus participation in principle in investor-state disputes.
NAFTA tribunals have also allowed amices participation in practice. It is likely there-
fore that amices participation will become more common in international arbitrations
involving at least one State, where the public interest is clear and the issues are
decided in accordance with a treaty and relevant principles of international law.
There will be strong resistance to amicus participation in what one NAFTA tribu-
nal described as the "standard run of international commercial arbitration between
private parties"," °9 where friends of the court are likely to be seen more as "officious
10
intermeddlers".

3 ICSID Secretariat, Possible Improvements of the Frameworkjbr ICSID Arbitration, Discussion

Paper, 22 October2004, §§13 15, available athttp://www.worldbank.orgiicsid/improve-arb.pdf.
See Suggested Changes to tlhe ICSID Rules ad Regulations, Wsorking Paper ofthe ICSID Secretariat,
12 May 2005, available at http:/ww/w.worldbank.org/icsidi05240 5 -sgmanual.pdf.
I07
bid.,
p.10.
o Ibid., p. 11.
UPS.cited note 272, §70.
10Aguas, cited note 274, §20.
 THE AMICUS CURIAE BEFORE INTERNATIONAL COURTS AND TRIBUNALS

III GENERAL CONCLUSIONS

Although one may not be able to speak of it yet as a device consecrated by "interna-
tional rules of procedure" the analysis in Part II indicates that the amicus cutriae is a
principle that finds expression in a number of international jurisdictions. There are cer-
tainly dangers in generalizing a concept. The well-known international lawyer, Sir
Arthur Watts, has warned that procedural questions "can in practice only be pursued
on a tribunal-by-tribunal basis."''3 Even considering this warning, the amicus curiae
before international courts and tribunals has a number of core features. This Part ana-
lyzes those core features, and their variations across international jurisdictions. After
identifying those features, it shall examine the general policy issues of, and prospects
for, ainicuscuriae participation in the work of international courts and tribunals.

1 Juridical nature of the amicus curiae before international jurisdictions

The analysis in Part II indicates that in the context of international jurisdictions, the
term amicus curiaerefers primarily to a person or entity whom a court or tribunal may,
in its discretion, permit to participate in legal proceedings in a capacity lesser than that
of a party. One of the few generalizations that can be made about amici curiae before
international jurisdictions is that they are never considered parties as a matter of law
and have lesser procedural rights than parties. The WTO, NAFTA tribunals, ECHR and
the ICTY have explicitly made a distinction between amici and parties. Only in some
ICTY proceedings have amici been accorded such rights as to blur the practical dis-
tinction between amici and parties.
Although some commentators and a NAFTA tribunal have distinguished between
the amicus curiaeon the one hand and experts and witnesses on the other, in practice
their functions sometimes overlap. In Methanex the NAFTA Tribunal stated: "Amici
are not experts. such persons are advocates (in the non-perjorative sense) and not 'inde-
pendent' in the sense that they advance a particular case to a tribunal."' This distinc-
tion is not made as easily in other international jurisdictions, where amici can perform
a function similar to that of an expert . ' In appointing amici,international jurisdictions
rarely, if ever, explicitly rely on their power to appoint third parties as experts (although
the Inter-American Court of Human Rights, probably implicitly, does assume such a
power). This could indicate that under most international dispute settlement frame-
works there are differences between the two, but many of the differences remain to be
articulated.

IWIWatts, "Enhancingthe Effectiveness 01 Procedures of hnternationa Dispute Settlment". Max Panck

2 1
Icarbook of United NationsLaw, Vol. 5, 2001. pp. 39 at p. 21.
3V2 fethanex, cited note 271, §38. Later, in UPS, another NAFTA Tribunal recognized that the functions
of ainici and experts could overlap. After rcfcrring to "the power of the Tribunal to seek the assistance of
independent experts on spccialised factual matters". the tribunal stated: "The contribution ofI anmicus might
cover such ground, but is likely to cover quite distinct issues (especially of law) and also to approach those
issues from a distinct position.": see UPS, cited note 272, §62.
313 See text accompanying notes 323 to 324.
 LANCE BARTHOLOMEUSZ

1.1 Wien can an amicus curiae participate?(Criteriaratione materiae)

What type of interest must a person or entity demonstrate to participate as amicus

before an international court or tribunal? In order to "intervene" in ICJ cases under
Article 62 of the ICJ Statute, a state must demonstrate that it has "an interest of a legal
nature which may be affected by the decision in the case." On the whole, participation
of amici in international courts or tribunals is conceived more in terms of the interest
of the court or tribunal than that of the person or entity seeking to participate.
Broadly stated, the court or tribunal's interest is that ainicus participation should
contribute to the proper administration ofjustice in the specific proceedings and, per-
haps, more generally. This interest is stated in various ways: "in the interest of the
proper administration ofjustice" (ECHR); "desirable for the proper determination of
the case" (ICC; ICTY ICTR; SCSL); "desirable in the interests of achieving a satis-
factory settlement of the matter at issue" (WTO Appellate Body); and "the ...sub-
mission would assist the Tribunal in the determination of a factual or legal issue
related to the arbitration by bringing a perspective, particular knowledge or insight that
is different from that of the disputing parties" (NAFTA).
Sometimes the relevant procedural rules do not explicitly proscribe judicial discre-
tion. For example participation may be permitted where the judicial body "deems [it]
appropriate" (WTO Panels): or the entity is considered "likely to be able to furnish
information on the [relevant] question" (CJ; ITLOS). But even in these cases, prac-
tice indicates that the proper administration of justice, at least in the proceedings at
hand, is a factor in deciding whether to pemit participation.
While the interest of the court or tribunal is generally most important, the interest
of the potential amicis in participation can be important, at least in practice. That inter-
est is not necessarily of ajuridical nature.3 4 And the nature of the interest sufficient to
enable participation as amicus varies across jurisdictions and according to the nature
of the proceedings. Before the ICJ and ITLOS, an intergovernmental organization's
interest in contentious cases involving its constituent instrument's construction is so
important that it may participate as of right as amicis in the case. The ECHR often per-
mits persons with a clear interest in the domestic proceedings to which an ECHR appli-
cation relates to participate as amicus on that basis. The ICJ has been much less
accommodating, notably in advisory proceedings relating to UN Administrative
Tribunal proceedings. On the other hand in the Palestinian all advisory proceedings,
the ICJ considered relevant Palestine's interest as co-sponsor of the draft resolution
requesting the advisory opinion. When the ICTY requests a State that its court defer
to the Tribunal's competence, clearly that State's interest in being heard is a factor in
permitting its participation as amicus. But in ICTY proceedings following failure to
execute a warrant, it seems that the indictee's State's interest in being heard is

!4As Ascensio states, as to the type of interest necessary for an amnicus curiae to participate, "ldoctrine
&voqueseulement un 'intrt' sans plus de prdcision. 11n'est rnne pas certain qu'il s'agisse d'un intrt
juridique, si l'on admet que 'amicus curiae puisse exposer son opinion egalement sur des faits on alors
on doit cntendre l'int6retjuridique de mani~re extrcrmcment large comme incluant un intdret abstrait au bon
fonctionnernent de lajustice." Ascencio, cited at note 22, at p.912.
 THE AMICLS CURIAE BEFORE INTERNATIONAL COURTS AND TRIBUNALS

insufficient. The WTO Appellate Body has asked applicants for leave to participate
to "specify the nature of the interest that applicant has in this appeal". NAFTA
Chapter 11 tribunals consider whether the applicant "has a significant interest in the
arbitration".

1.2 Who can be an amicus curiae? (Criteriaratione personae)

The answer to the question who can participate as amiculs curiaevaries widely accord-
ing to the jurisdiction. In some international jurisdictions, in principle, any State, organ-
ization (intergovernmental, international, or national) or person (natural or legal) may
participate as amicus curiae.Such is the case before the ECHR, ICC, ICTY, ICTR and
SCSL. In other jurisdictions participation is more restricted. For example, in practice,
access to the ICJ and ITLOS in the capacity of amicus curiae is limited to States and
international organizations. In some jurisdictions persons or entities unable to partic-
ipate in proceedings as parties may participate as amicus curiae,for example, NAFTA
Chapter 11 tribunals (industry associations and NGOs); WTO Dispute Settlement
Body (NGOs and individuals), and the ICC, ICTY and ICTR (States and international
organizations).
Persons or entities that can be parties to, or initiate, proceedings before ajurisdic-
tion can often also participate as amici, for example: individuals, NGOs and States
before the ECHR; States and intergovernmental organizations before the ICJ; and
WTO Members before the WTO Appellate Body. Such participation is not always
permitted because some entities can be parties to ITLOS Seabed Disputes Chamber
cases but cannot participate in the Chamber's advisory proceedings. And amicus par-
ticipation by entities that could participate in a different capacity can be controversial.
Notably, a number ofmember States voiced disapproval of the WTO Appellate Body's
2002 decision in Sardines that a Member may not only participate as a "third partici-
pant" in appeal proceedings, but also as amicus curiae.
Participation of a person or entity as amicus is likely to be more controversial in
jurisdictions where there is no express provision for their participation. This unsur-
prising statement is supported by: States' ferocious reactions to decisions about in-
principle NGO participation as amicus curiae in WTO Appellate Body proceedings;
by concern expressed in relation to non-State actor participation in NAFTA Chapter
11 tribunals; and by the ICJ's overall response to attempts by NGOs and individuals
to participate as amici in its proceedings. By comparison, the ECHR and the interna-
tional criminal tribunals have often, and relatively uncontroversially, used their broad
express powers to permit ainicusparticipation.31 Ascensio has also noted this differ-
ence in approach and characterized it as follows: jurisdictions concerned with inter-
State disputes (for example, the ICJ and the WTO) are more restrictive in their
approach to amicus curiaethan courts or tribunals largely open to private persons or

315One example that does not support this proposition is the practice of the Inter-American Court of
Hunan Rights. which has a relatively rich armcs practice despite lack of express provision to appoint amici:
see further Shelton, cited at note 2.at pp.638 640.
 LANCE BARTHOLOMEUSZ

at least for the defence of their rights (for example, ECHR and the international crim-
inal tribunals).3 16

1.3 The court or tribunal' discretion

The international court or tribunal usually retains a broad discretionary power over all
aspects of amicus participation.
In the first place the international courts and tribunals discussed in this paper usu-
ally have discretion whether or not to pemrit amicus participation. There are exceptions
in certain cases. Intergovernmental organizations may participate as of right in ICJ and
ITLOS cases involving the construction of their constituent instruments. In the ECHR,
a State has a right to act as amicus if it is a Contracting Party and the applicant is one
of its nationals. And where a party to a dispute adopts a third person's submissions
as its own, at least in WTO and NAFTA proceedings, the jurisdiction is obliged to
accept them.
If it does permit participation, an international court or tribunal has discretion over
the form of that participation and the scope of the submissions, a matter that is dis-
cussed below."7
Once the amicus has made its submissions, at least some jurisdictions treat those
submissions differently than parties' submissions, which must be considered. In WTO
proceedings, neither panels nor the Appellate Body are obliged in law to give due con-
sideration to amicus submissions, including in their reports. So too a NAFTA arbitral
tribunal's grant of leave to file an aiicus submission does not require it to address that
submission at any point in the arbitration. Other international jurisdictions have not
found it necessary to articulate their legal obligations in relation to amicus submissions
after they have granted leave to persons to make them. It is conceivable that at least
the ECHR and the international criminal tribunals would view their obligations dif-
ferently. Ordinarily one would think that a grant of leave to a person to make a sub-
mission entails a legitimate expectation that the court would then at least consider in
good faith whatever is submitted. ECHR practice supports this proposition in that it
usually summarizes, however briefly, amicus submissions to it. And would the ICTY
really consider that it had no legal duty to take into account submissions made in the
Milosevic proceedings by amici appointed by it to ensure a fair trial? Consistent with
international tribunals' general practice, after considering the submission it would be
entirely in the Court's discretion what weight, if any, should be accorded to it.

1.4 Form and content of amicus curiae participation

The form of amicus curiae participation in legal proceedings is circumscribed in two

ways: (i) generally, by the particular court or tribunal's rules, and (ii) specifically, by
any conditions upon which the court or tribunal pernits the amicus to participate. This
section discusses the following aspects of the forn and content of anicus participation:

Ascencio, cited at note 22, at pp. 901 and 905.

See text accompanying notes 318 to 322 below.
 THE AMICUS CURIAE BEFORE INTERNATIONAL COURTS AND TRIBUNALS

whether written and oral submissions can be made, the length of written submissions;
access by amici to the parties' submissions, whether amicus submissions cover legal
and factual issues; and the right of the parties to respond to amicus submissions.
An amicus curiae's participation extends at least to making written submissions to
the court or tribunal. Sometimes the amicus can participate actively in oral proceed-
ings but on the whole this is rare. Amici cannot ordinarily participate in NAFTA tri-
bunal oral proceedings because UNCITRAL rules stipulate that the hearing is in
camera unless both disputing parties consent. Amici cannot participate in WTO
Appellate Body hearings311 In practice the ECHR has rarely found it necessary to
invite an amicus to take part in hearings. The ICTY has been relatively open to par-
ticipation in oral proceedings by its amici, especially in the Miloev ic proceedings. And
States or international organizations participating in ICJ advisory proceedings have
often taken part in the hearings.
It is not common practice of international courts and tribunals to prescribe the max-
imum length of amicus briefs or requests for leave. For example, neither the ICJ,
ITLOS, ECHR, ICC, ICTY nor ICTR prescribe page lengths. Most good lawyers rec-
ognize the persuasive force of brevity. Nonetheless, some important amicus briefs sub-
mitted to the ICTR (e.g., by NGOs in Akayesu) and the ECHR (e.g., by Liberty in
. v.UK) exceeded the page limits prescribed in the WTO ad hoe procedure. Perhaps
reflecting the influence ofU S domestic practice, the WTO and NAFTA Chapter 11 tri-
bunals have prescribed page limits.
Access by amici to the parties' documents and submissions is often limited. In WTO
and NAFTA tribunal proceedings, ordinarily the parties' submissions are confidential.
In ICJ advisory proceedings, once a State or organization has been granted leave to
make a written statement, it will receive a copy of other written statements filed in the
proceedings. Otherwise the participants' written statements remain confidential until
at least the beginning of the oral proceedings." 9 In international criminal proceedings
it will depend largely on the stage of proceedings at which the request to make ami-
cns submissions is made, to what extent documents and submissions are accessible.
Normially the indictment and documents and information presented to the Court will
be publicly available.2 0 Documents filed in ECHR applications are generally accessi-
ble to the public (and thus also to applicants for amicus status) from the time they are
deposited with the Registry.2
Amicus submissions usually address legal matters but in appropriate cases can
extend to factual matters. In WTO Appellate Body proceedings, which only deal with
appeals on issues of law, amicus briefs have been limited to issues of law. The rules of
ECHR, ICTR, ICTY, SCSL and the ICC about amicus participation do not limit sub-
missions to issues of law. Similarly, the rules of the ICJ and ITLOS do not limit to legal
issues submissions by States and international organizations in the course of their

I! Compare Sardines, cited note 23 5,§ 164, note 69 ("a Member which files an anicus curiae brief is not
guaranteed that we will accept or consider the brief. and the Member will not be entitled to attend the oral
hearing inany capacity.")
19 ICJ Statute, Art. 66(4); tCJ Rules, Art. 106.
321 Compare ICTY Rules of Procedure and Evidence, Rules 52 and 53.
321ECHR Rules ofCourt, Rule 33.
 LANCE BARTHOLOMEUSZ

advisory proceedings. Although such submissions will often relate mainly to legal
issues, this is not always the case. In the Palestinian Wall advisory opinion it is clear
that at least Israel would have been entitled to make, and the Court would have wel-
22
comed, factual submissions.3
International courts and tribunals routinely permit the parties to respond to any ami-
cus submissions. Among the jurisdictions surveyed in this paper there are no excep-
tions, although some WTO member States have complained that the short mandatory
deadlines for resolution of WTO disputes deprive the parties of a full and adequate
opportunity to respond to amicus submissions.

1.5 Functions

Before international courts and tribunals, amici curiae have perfomed four broad
functions:
First, an amicus curiae can provide specialist legal expertise to the court or tribu-
nal, in particular about matters outside the judges' core competence. This function is
similar to that of an expert, although the expertise may be provided either as a "neu-
tral bystander" or as an advocate."' Notably, the international criminal tribunals have
appointed amici to provide expertise about general international law issues: ICTY
(Tadic; Bla§kic); and SCSL (Taylor). The WTO Appellate Body has permitted an NGO
with special international environmental law expertise to participate (Shrinps/Turtles:
Center for International Environmental Law). On several occasions the ECHR has
appointed amici to provide legal expertise in areas that are within the core competence
of its judges, that is human rights (Karner ii Austria: discrimination on the basis of sex-
ual orientation). The ICTY and ICTR have also let amici make submissions about areas
of law that were within the judges' core competence, for example: international
humanitarian law (ICTR, Seinanza); and credibility of a rape victim witness (ICTY,
Farundzija).The use of amici to provide specialist legal expertise might perhaps con-
tribute to less fragmentation of international law. 4 For example, the Center for Justice
and International Law performed this role in ECHR proceedings in Timurta 1. Turkey
when it commented on the Inter-American Court of Human Rights' case-law on the
issue of forced disappearances.
Secondly, an amicus can provide factual information to the international court or tri-
bunal. In doing so, its functions are akin to that of a witness. This function has been
performed by amici in proceedings in the ICJ (e.g., the International Civil Aviation
Organization in the Aerial Incident of 3 July 1988: the UN Secretary-General in
Cumaraswamy); and before the ECHR (the OSCE in Bleei( i Croatia).

322 Compare Palestinian Wall, cited note 33, §55.

'23 The Inter-American Court offfuman Rights has no explicit power to appoint amici curiae but the legal
basis of its extensive practice is probably Article 34(1) of the Court's Rules of Procedure: "The Court
may .. decide to hear as a witness, expert, or in any other capacity, and person whose testimony or state-
ments seem likely to assist it carying out its functions.": see Shelton, cited at note 2, at p. 638.
324 See. fbr example, Ascncio, cited at note 22, at 924. The UN International Law Commission's pro-

gramme of work includes an item about "Fragmentation of international law: difficulties arising fTom the
diversification and expansion of international law".
 THE AMICUS CURIAE BEFORE INTERNATIONAL COURTS AND TRIBUNALS

Thirdly, an amicus curiae can provide a measure of due process, or at least access,
to persons or entities who cannot be parties to an international court or tribunal's pro-
ceedings but whose interests may be affected by the decision because of, for instance,
their close involvement in municipal or administrative proceedings to which the inter-
national court or tribunal proceedings relate. Amici have fulfilled this function in, for
example: ECHR proceedings (for example, Feldek i. Slovxakia: plaintiff in municipal
defamation proceedings against the applicant, on Hannover ii Germany:the publisher
of photos against whom the applicant brought municipal proceedings); ICTY Rule 10
deferral proceedings; NAFTA Chapter 11 tribunals (UPS: Canadian Union of Postal
Workers); WTO proceedings (Panel: Australia- Salmon: "Concerned Fishermen and
Processors" from South Australia).3 25 The ICJ has been criticized for not
permitting amici to fulfil this function, for example, in advisory proceedings relating
to UN Administrative Tribunal decisions concerning UN staff.
Fourthly, amici curiae can, to a certain extent, represent public interest considera-
tions. NAFTA tribunal procedures contemplate intervention on such a basis. Persons
and entities seeking to participate in WTO proceedings sometimes state that they could
discharge this function. In some ECHR proceedings, members of civil society have
performed this function (for example, in Prety i. UK: Voluntary Euthanasia Society
and the Catholic Bishops' Conference of England and Wales). The NGO coalition brief
submitted to the ICTR in Akayesu manifested a public interest by acting as a check on
the prosecutorial discretion about what charges are to be included in the indictment.
States that intervene in ICJ advisory proceedings will often represent the public inter-
est, especially democratic States with sophisticated mechanisms for consulting civil
society. The extent to which NGOs represent the public interest is a matter of some
debate. In general NGOs will represent what they deem to be in the public interest.
As the survey of international jurisdictions' practice in Part II indicates, amici can
perform other functions. A State's submissions as amicus curiaecan provide evidence
of opiniojuris,as did the United States' submission in the ICTY's Tadic proceedings.
An amicus can explain the scope of the UN Secretary-General's waiver of a former UN
official's privileges and immunities to give evidence before a tribunal, as was the case
in the ICTR proceedings in Akayesu.
We have considered the amicus curiae's functions in different international juris-
dictions. A closely related question is how those functions ought to be discharged:
should an amicus be impartial, neutral or independent? To some extent the answer to
this question depends on the jurisdiction and the functions being discharged.
Generally speaking, as in municipal jurisdictions such as the United States, amici
curiaemay legitimately perform an advocacy function; the traditional concept of amici
as neutral bystanders has evolved. ' To this extent, ordinarily, amici are not expected
to be completely neutral. When the ECHR appoints as amicus a person with a clear
interest in the domestic proceedings to which an application relates, it must expect that

315 Auslralia Measure, A41ectiog Importation o/fSlmnon Recouise to Artice 2l.5 by Canada, Report
ofthe Panel, WTO Doc. No. VT/DS 18/RW, 18 February 2000, §7.8.
126 Chinkin and Mackenzie explain: "The traditional concept of amicus curiae is generally described as
a neutral 'bystander' who, without as direct interest in the litigation, on his or her own initiative brings to
the attention of the court matters of fact or law within his or her knowledge.... [In this case] the primary
 LANCE BARTHOLOMEUSZ

the amicuzs will make submissions about his or her own interests. And when a coali-
tion of NGOs urged the Prosecutor to amend the indictment in the ICTR Akayesu
proceedings to include rape and sexual violence charges, they did so more as advocates
than as neutral bystanders. Also, in WTO and NAFTA proceedings, there are indica-
tions that amici may act, and have acted, as advocates.
While amici may sometimes appear as advocates it seems that they must still con-
duct themselves in a manner consistent with the trust reposed in them as "friends of
the court". In the course of deciding in the Vilosevic proceedings that one amicus was
no friend of theirs, the ICTY indicated that an ainicus had to "act fairly in the per-
327
formance of his duties [and] discharge his duties ...with the required impartiality".
Even though amici may make submissions that favour the position of one party over
another, ordinarily the international court or tribunal wvill expect the amicus to be inde-
pendent, that is, more a friend of the court than of a party. In WTO, NAFTA and ICSID
proceedings it seems that, unless a party adopts a potential amicus' submissions, it is
expected that the amicus be independent of the parties. So, an applicant for leave must
disclose any relationship with, or assistance from, a party. And if it becomes clear that
a WTO amicus has had access to a party's submissions in the course of preparing its
own, it will be thereby disqualified. The ICTY also asked applicants for leave to make
amicus submissions to identify and explain any contact or relationship with any party
8
to the case .1
Ultimately, the answer to the question how impartial, neutral or independent an ami-
ciis ought to be depends on the functions it is discharging. An amicus who makes sub-
missions to the ICJ about factual matters could be expected to be more impartial,
neutral and independent than an amicus who is appointed by the ECHR because of his
or her clear interest in the domestic proceedings to which the application relates.

2 Policy issues

Amicus curiaeparticipation in international courts and tribunals raises a number of pol-

icy issues. Does it promote the peaceful settlement of international disputes? How does
it fit with the notion that the parties' consent is the cornerstone of third-party settlement
of international disputes? Is the doctrine ofjura novit curia outmoded? And does the
amicus curiae contribute to the legitimacy, accountability and transparency of inter-
national jurisdictions? Let us consider these questions in turn.

role of the amicus is to assist the court.But over time a more advocacy-oriented amicus function has evolved
whereby an organization or group make submissions to the court either in support of one of the parties to
the dispute, in its own interest, or to ensure a wide ventilation ofviews in wihat the amicus deems to be the
public interest." Chinkin and Mackenzie, cited at note 8,p.136.
127 See text accompanying note 200.
2 hn/ormation Concerning the Submission ofAmicus Curiae Brie, IT/122, 22 March 1997.
 THE, MICUS CURIAE BEFORE INTERNATIONAL COURTS AND TRIBUNALS

2.1 Does the amicus promote peaceful settlement of international disputes?

First, does amicus participation promote the peaceful settlement of international dis-
putes? Some international jurisdictions' rules explicitly permit amicus participation.
The text of the relevant provision may appear in the Convention that established the
court, which States have ratified. The ECHR is a case in point. Otherwise the text may
appear in the court or tribunal's procedural rules. Sometimes States and other mem-
bers of the international community have played a role in developing those rules. For
example, many States were involved in the development of the ICC Rules of Evidence
and Procedure. And, to a lesser extent, States were involved in the development of the
ICTY and ICTR's rules following the tribunals' establishment by the Security Council.
NAFTA procedures on amicus curiae have been agreed to by the Free Trade Com-
mission which comprises cabinet-level representatives of the States Parties and acts on
the basis of consensus.
Where States have explicitly agreed to, or had input on, procedures for amicus
curiae participation, it is reasonable to conclude that in their view such participation
is useful for the relevant jurisdiction's purposes. At least in respect of NAFTA and
ECHR proceedings one ofthe primary purposes is the peaceful settlement of disputes.
That the ECHR has used amici relatively often, and for some time, despite a heavy
caseload indicates that ECHR judges consider that, in practice, amici can perform a
role in the peaceful settlement of disputes brought before them. The relative fre-
quency with which ICTY and ICTR have appointed amici curiae indicates that their
judges hold that, in practice, such participation can be "desirable for the proper deter-
mination of the case".
There must be some doubt whether amicus participation contributes to the peace-
ful settlement of disputes where ajurisdiction's procedural rules do not explicitly per-
mit participation and where States whose disputes are to be settled have voiced
concern about amicus participation. This is precisely the case in relation to WTO dis-
pute settlement, which is inter-State. On the whole, WTO Members disagree with the
Appellate Body's decision that, in principle, it may receive amicus briefs notwith-
standing the lack of an express provision in the DSU to that effect. Most Member States
also did not agree with the decision that panels could accept uninvited briefs.129 India
has warned of the possible consequences for trade dispute settlement: "If governments
knew that their non-governmental agencies had a further chance to influence the dis-
pute settlement mechanism [by submitting amicus briefs], then ... there could even
33
be implications for compliance by governments themselves.' 0
Similarly, it is doubtful that participation by NGOs and individuals as amici in ICJ
and ITLOS proceedings would promote the settlement of the international disputes
determined by them. First, such participation would be inconsistent with the long-
standing practice relating to interpretation of Article 34 of the ICJ Statute. And that
interpretation was one that found favour in ITLOS' rules, which were developed by a
Preparatory Commission in which States' delegates participated.

121 WTiGC/M/60, cited note 211, §§114-115.

Ibid., §38.
I1
 LANCE BARTHOLOMEUSZ

2.2 Amicus participationand the consent of the parties to thirdparty dispute

settlement

A second question, related to the first, is how amicus participation fits in with the notion
that the parties' consent is the cornerstone of third-party settlement of international dis-
putes. It will be recalled that in Methanex a NAFTA tribunal accepted amicus briefs
in an arbitration between a State and an investor even though one of the parties did not
consent. In an article published in 2002, Stern suggested that this entailed "une nou-
velle marginalisation du consentement des Parties, qui est A la base de la procedure
d'arbitrage."Il' Following the Free Trade Commission's statement on "non-disputing
party participation" in October 2003 it may well be that the parties' consent in similar
circumstances would not be quite so marginalized because the State Parties to NAFTA
have agreed on guidelines for amici participation. The consent of the parties to ami-
cus participation is not an issue where the Parties have agreed, or had input into,
express provisions enabling that participation. So, it is suggested that the consent of
the parties is not a live issue, for example, in relation to proceedings in the ECHR.

2.3 Juria novit curia and amicus participation

A third policy issue is this: does increased amicus participation mean that the principle
jura novit curia is outmoded? Juranovit curia means that a tribunal of international
law is deemed to know what this law is."' The relevance of the doctrine varies. ICTY
and SCSL practice indicates that international criminal tribunals welcome assistance
in relation to general international law issues, for example, the status of the tribunal and
its effect on the immunity of a State's head of state (SCSL: Taylor) or the legality of a
tribunal's establishment as an organ of the Security Council (ICTY Tadic). The
ECHR, the ICTY and the ICTR have permitted amicus interventions on legal issues
that are within the core competence of the judges. On the other hand in the WTO, some
States expect the Appellate Body, which only considers legal issues, to reach its
decisions without the assistance of non-State amici. 331 And in the great majority of
proceedings before international courts and tribunals, amici do not participate. This
indicates that, on the whole, the principle of jura novit curia is more than an
expression ofjudicial ego and continues to play an important role in international dis-
pute settlement.

!' Stern, "L'entr&e de la socidt6 civile dars l'arbitrage entre Etat etinvestisseur", Revue de 1 arbitrage,
2002, pp. 329 345, atp. 339.
112 See Cheng, GeneralPrinciplesofLaw as appliedby nternationalCourts and Tribunals, Cambridge,

Grotius Publications, 1987, pp. 299 301.

333See WT/GC/Mi60, cited at note 211, §7 (Urug iay: "the members of the Appellate Body had the
capacity, knowledge and experience necessary to take the legal decisions incumbent upon them without
any outside help"). See also Egypt on behalf of the IGDC at§13; India at§36; Brazil at§45; and Pakistan
at §65.
 THE, IJCUS CURIAE BEFORE INTERNATIONAL COURTS AND TRIBUNALS

2.4 Does amicus participation promote the legitimacy, accountabilityand

transparency qf internationaljurisdictions?

While the doctrine ofjura novit curia might militate against international jurisdictions'
use of amici, it is argued, particularly by would-be amici curiae, that their participa-
tion would contribute to the legitimacy, accountability and transparency of interna-
tional jurisdictions. Is there merit to this argument?
Perhaps amicus participation can contribute to the legitimacy of the jurisdiction con-
cerned, at least where an amicus is appointed to provide a measure of due process, or
access, to persons or entities who cannot be parties to ajurisdiction's proceedings but
whose interests may be affected by the decision. Rosenne has suggested that "in the
interests of the proper administration of international justice", the ICJ ought to take
advantage of its existing powers to permit an individual directly concerned to give to
the Court his or her own version of the facts and construction of the law. He suggested
that, amongst other things, such a process would increase the ICJ's general standing
and prestige.334 It may be that wider participation in international jurisdictions' pro-
ceedings promotes their legitimacy, at least among those seeking to participate. If
NGOs could better access WTO proceedings, would NGOs and anti-globalization pro-
testers better accept the WTO as the arbiter of international trade disputes between
WTO members? Perhaps; an article co-authored by a member of the WTO Secretariat
suggests as much." 5 But would such NGO access reduce the legitimacy of the WTO
in the eyes of its clientele, States? That may well be the case, considering that States
can see amicus participation as impinging on their sovereignty, the exercise of which
was carefully considered when they became members of WTO. Consider, for example,
Uruguay's view:

The WTO was an agreement of a contractual nature that was qualitatively different from other interna-
tional agreements in the sense that the obligations that stemmed from this contract included the strict
fulfilment of the decisions of the DSB to the extent of diminishing the decision-making capacity of
Menbcrs. Insofar as Members were mainly States, the political cfifect of this situation was of no little
3
consequence . 6

Further, some States have warned of a "risk that the [WTO] DSB would be excessively
influenced by NGOs or by large companies who would offer legal services. This
situation would be bad for the WTO but would be even more negative for developing
countries whose financial and human resources were limited and whose electronic
337
communication means were not as developed. '

331Rosenne, cited note 7, p.250.A youthful Brownlie made similar comnents: "Even if the individual
is not to be given procedural capacity a tribunal interested in doing justice effectively must have proper
access to the views of individuals whose interests are directly affected whether or not they are parties as a
matter of procedure." See Brownlic. cited note 26, p. 719.
335Marceau and Stilwell, "Practical Suggestions for Amicus Curiae Briefs Before WTO Adjudicating
Bodies". JournaloflinternationalEconomic Law, Vol 4_ 2001, pp. 155 187, at p. 178.
336WT/GC/Mi60,cited note 211, §5.
331WTiGC/M/60, cited note 211, §93 (Argentina). See also §38 (India).
 LANCE BARTHOLOMEUSZ

On occasion amiccs participation has performed a role in ensuring accountability.

The best example is probably the NGO coalition's brief submitted to the ICTR in
Akayesu, which acted as a check on the prosecutorial discretion about what charges are
to be included in indictments. In ICJ advisory proceedings wide participation by
States, whose submissions are carefully considered by the Court, may contribute
some measure of accountability of the Court to its clientele. In PalestinianWall, even
Israel's limited presence arguably forced the ICJ to at least address a number of
arguments in favour of Israel's position.
Finally, does amicus participation contribute to the transparency of international
jurisdictions' proceedings? As Stern rightly notes, the word "transparency" is a "mot
quelque peu passe-partout, mais qui semble op&rer comme un s6same."338 The NAFTA
tribunal in Methanex considered that "the Chapter 11 arbitral process could benefit
from being perceived as more open or transparent. or conversely be harmed if seen as
unduly secretive. In this regard, the Tribunal's willingness to receive am icus submis-
sions might support the process in general and this arbitration in particular."33 9 In UPS,
Canada supported amicts participation in principle because of, among other things, "its
appreciation of the contribution that transparency brings to building public confidence
in the investor-state dispute settlement process." 340 In Agutas an ICSID tribunal simi-
larly referred to interests in transparency and openness in support of its decision to per-
mit amicus participation in principle.'4'
But is amicus participation really an issue related to interests in transparency? At
least in the context of amices participation in WTO proceedings, Canada, Turkey and
Argentina thought not. Canada said:

one
... should not confusc the issues of transparency and participation in WTO dispute settlement. Canada
fully supported greater external transparency in the WTO,including in dispute settlement.
The amicus briefs were, however, not a transparency issue. itaddressed thc fundamental issue of par-
ticipation in WTO dispute settlement proceedings, i.e., whether this participation should be limited to
WTO Member governments or would non-governmental bodies also be entitled to participate. Canada
was sympathetic to the interests of non-Members in the outcome of WTO disputes and recognized that
civil society, including NGOs, tollowed closely the issues examined in disputes. At the same time, Canada
also acknowledged the need fbr Members to examine the impact this might have on what was a govem-
42
ment-to-govcrnment dispute settlement process.1

Amicus participation in international jurisdictions may be desirable for a number of rea-

sons, but it is suggested that, in view of Canada's comments in the WTO, trans-
parency is not one of them. Anyway, the amicus briefs sent to the Appellate Body in

Stern, cited note 331, p.345.

Akrthanex, cited note 271. §49.
340UPS,cited note 272, §51.
341Aguas, cited note 274, §22.
42 WT/GC/MNt60,cited at note 211, §§71, 72. Turkey echoed Canada's comments: "To present this legal
matter as an issue of external transparency would be misleading." (See §80.) Similarly, Argentina said ani-
cus participation "was not related to transparency issues." (See §93.) On the other hand, the European
Cormrunities and Chile appeared to consider the issue of amicus participation as one of transparcncy: see
§§96 and 100, respectively.
 THE, MICUS CURIAE BEFORE INTERNATIONAL COURTS AND TRIBUNALS

Asbestos hardly contributed to transparency because only a few potential amici posted
their briefs on the Internet.43 A far greater contribution to transparency would be US
President Clinton's suggestion that "all hearings by the WTO be open to the public, and
44
all briefs by the parties be made publicly available".

3 Prospects

Since the 1990s amici curiaehave become more prominent before international juris-
3
dictions. With the increased influence of non-State actors at the international level, 4
this trend is likely to continue. In principle, amici curiae may participate to varying
extents in the legal proceedings in all of the international jurisdictions discussed in this
paper. Recent practice indicates that amici curiaehave found, and will continue to per-
form, useful roles, particularly in international human rights and international crimi-
nal proceedings. Some international jurisdictions continue to be reluctant to let civil
society participate, in particular the ICJ and ITLOS. But even the State-centred ICJ has
indicated an increasing openness to NGO participation in advisory proceedings. And
intergovernmental organizations are yet to take full advantage of opportunities for their
participation in ICJ proceedings. The extent to which ITLOS amicus practice expands
will probably depend on it finding a greater and more diverse caseload.
While WTO dispute settlement proceedings are in principle open to amici, in prac-
tice NGOs and others are unlikely to gain access until they obtain better access to par-
ties' submissions and convince the Appellate Body, panels, and most importantly,
WTO Members, that their presence positively enhances dispute settlement.
Prior to 2001 amicus participation in international arbitration was unknown. Since
then NAFTA and ICSID tribunals have permitted amicus participation in investor-State
dispute arbitrations. It is likely that amicus participation will become more common
in international arbitrations involving at least one State and where a public interest ele-
ment is clear. But there will be strong resistance to amicis participation in the "stan-
dard run of international commercial arbitration between private parties."
In the view of this writer, the prospects for amicus participation could be enhanced
in several ways.
First, the juridical nature of an amicus curiae should be clarified or developed to re-
cognize it as an entity that is neither party, witness nor expert, but has sufficient inter-
national legal personality to perform the functions required of it by the relevant
international jurisdiction. Courts and tribunals will then have a clearer idea of what
exactly they might invite to participate. Necessarily, the functions of an amicus in a par-
ticular jurisdiction would have to be elaborated. At a minimum, its function could be
expressed broadly as one "to contribute to the proper determination of the case".

143See Institute of International Economic Law."Amicus Curiae in EC-Asbestos (DS 135): Applications
requesting leave to file a written brief and the briefs of NGOs", available at http:/ww w.law georgetown.
eduiiielicun ent amnicus amicuscuiiae5.html.
141 WORLD TRADE WT/FIFTY/H/ST/8,cited note 220, p. 4.
345 See, for example, e the Peoples: Civil society the United ations and Global Governance, Report
of the Panel of Eminent Persons on United Nations Civil Society Relations, A/58/817, 11June 2004.
286 LANCE BARTHOLOMEUSZ

Secondly, the conditions for amicus participation could be developed or reviewed

after wide consultation with representatives of all those interested: members of the
court or tribunal, entities able to appear as parties before it; and potential amici; courts
or tribunals anxious about (extending) amicus participation could consider pilot proj-
ects. In this way, the amicus curiaecould become a closer friend of international courts
and tribunals.