Civil Society, International Courts And Compliance Bodies

by Edited by Tullio Treves , Marco Frigessi di Rattalma , Attila Tanzi , Alessandro Fodella , Cesare Pitea , Chiara Ragni

• ISBN13: 9789067041867
• ISBN10: 9067041866
• Format: Hardcover
• Copyright: 2005-01-10
• Publisher: T.M.C. Asser Press

Summary

With contributions by a multinational group of academic scholars, judges and registrars of international tribunals, and experts from Non-Governmental Organizations, this book explores the role of civil society with regards to international courts and tribunals, as well as compliance mechanisms set up especially in the environmental field. The areas of human rights, international criminal law and international environmental law are the main focus of the study, in the light of the well established role of NGOs in Human Rights Courts and UN bodies as well as their remarkable success in setting up the International Criminal Court and the promising avenues which are now open in the compliance bodies of environmental law conventions. Broader questions and bodies such as the International Court of Justice, the International Tribunal for the Law of the Sea as well as European courts and tribunals are also examined.

Table of Contents

Contributors and Editors	xiii
Abbreviations	xv
Law Reports	xviii
Journals	xix
Introduction	1	(8)
Tullio Treves
Part I NGOs and Human Rights Courts and Compliance Bodies	9	(96)
International Courts and Compliance Bodies: The Experience of Amnesty International	11	(30)
Dean Zagorac
Introduction	11	(1)
Universal Level	12	(5)
Treaty-monitoring bodies	12	(3)
International Court of Justice	15	(1)
International criminal courts and tribunals	16	(1)
Regional Level	17	(20)
Council of Europe	17	(9)
Organization of American States	26	(6)
Organization of African Unity / African Union	32	(5)
Conclusion	37	(4)
The Experience of the AIRE Centre in Litigating before the European Court of Human Rights	41	(6)
Catharina Harby
Introduction	41	(1)
Resources	41	(1)
Taking Cases to Strasbourg	42	(1)
Costs of Litigating	43	(1)
Proposals to Reform the European Court of Human Rights	44	(2)
Conclusion	46	(1)
NGOs and the Inter-American Court of Human Rights	47	(10)
Monica Pinto
Introduction	47	(1)
Civil Society, NGOs and Human Rights	47	(2)
Human Rights NGOs and the Victims	49	(1)
NGOs' Legal Standing in the Petition and Judicial Contexts	50	(3)
NGOs and Standard Setting	53	(1)
NGOs and the Implementation of the System's Legal Resources	54	(1)
Some Preliminary Conclusions	55	(2)
NGOs before the European Court of Human Rights: Beyond Amicus Curiae Participation?	57	(10)
Marco Frigessi di Rattalma
NGOs' Amicus Curiae Participation before the European Court of Human Rights	57	(2)
The Lex Lata: NGOs Have No General Authority to Act on behalf of Alleged Victims	59	(1)
The Lege Ferenda: Would Granting an Actio Popularis to NGOs be Appropriate?	60	(3)
A Limited Locus Standi for NGOs	63	(4)
The Role of NGOs before the United Nations Human Rights Committee	67	(26)
Gianluca Rubagotti
Introduction: Mechanisms and Procedures before the United Nations Human Rights Committee	67	(1)
The System of Periodic Reports	68	(15)
Scope and function of the reporting obligation and sources of information	68	(11)
The actual influence of the work of NGOs in the reporting procedure	79	(4)
Inter-state Communications	83	(1)
Individual Communications	84	(6)
Scope and functions of individual communication	84	(1)
NGOs: inclusion or exclusion?	85	(2)
Possibilities pursuant to Rule of Procedure 90(b)	87	(1)
Friends of the court?	88	(2)
Conclusion	90	(3)
Some Concluding Remarks on NGOs and the European Court of Human Rights	93	(12)
Nina Vajic
Introduction	93	(3)
Role of Human Rights NGOs	96	(1)
Third Party Intervention (Direct Intervention)	97	(5)
Prospects for Possible Changes	102	(3)
Part II NGOs and International Criminal Courts and Tribunals	105	(42)
The Experience of No Peace Without Justice	107	(6)
Mariacarmen Colitti
NPWJ and the NGO Coalition for an ICC	107	(2)
NPWJ and Governments	109	(1)
Judicial Assistance Program	109	(1)
Awareness Raising	110	(1)
NPWJ and the ICTY: The Kosovo Mission	110	(1)
Conclusion	111	(2)
NGOs and the Activities of the Ad Hoc Criminal Tribunals for Former Yugoslavia and Rwanda	113	(8)
Patrizia De Cesari
Functions of Non-Governmental Organizations in the Activities of Ad Hoc Criminal Tribunals	113	(2)
Key Provisions of the Statutes and of the Rules of Procedure and Evidence	115	(1)
The Practice of the Tribunals	116	(2)
Conditions for the Participation of NGOs as Amici Curiae in Proceedings	118	(1)
The interests of NGOs	118	(1)
Authorization from the Tribunal	118	(1)
Form of participation	119	(1)
Need to Clarify the Involvement of NGOs as Amici Curiae before Ad Hoc Criminal Tribunals	119	(2)
NGOs and the Activities of the International Criminal Court	121	(8)
Francesca Trombetta-Panigadi
Explicit References to NGOs in the Statute and Subsidiary Documents	121	(2)
NGO Coalition for an ICC and the Recognition of its Role by the Assembly of States Parties and the Organs of the ICC	123	(2)
NGOs' Activities Today: The Policy of the Coalition	125	(3)
Concluding Remarks	128	(1)
NGOs and the East Timor Special Panels for Serious Crimes	129	(14)
Chiara Ragni
The Role of NGOs in Judicial System Reconstruction in East Timor	129	(1)
Historical Background	129	(2)
NGO Coalition for an International Tribunal for East Timor	131	(4)
NGOs and the Special Panels for Serious Crimes	135	(6)
Judicial System Monitoring Programme and its activities	137	(2)
Relationship between JSMP and public institutions	139	(2)
An Assessment of the Results Achieved by NGOs in the East Timor Context	141	(2)
Some Concluding Remarks on the Role of NGOs in the ICC	143	(4)
Mauro Politi
The Role of NGOs in the International Legislative Process	143	(1)
Action of NGOs in support of the ICC	144	(3)
Part III NGOs and International Environmental Disputes and Compliance Mechanisms	147	(78)
The Experience of Greenpeace International	149	(18)
Duncan E.J. Currie
Introduction	149	(1)
International Developments on Enforcement of MEAs	149	(7)
UNEP Guidelines	151	(1)
Reporting, monitoring and verification of compliance and capacity-building	151	(1)
Locus standi	152	(1)
Amicus curiae briefs	153	(1)
Consultation and cooperation	153	(3)
Some Examples of MEA Compliance Issues under Individual Instruments	156	(10)
CITES and illegal logging	156	(3)
`Scientific whaling'	159	(2)
Illegal, unregulated and unreported fishing	161	(3)
The IMO	164	(2)
Conclusion	166	(1)
NGOs and the Aarhus Convention	167	(20)
Jeremy Wates
Origin and Evolution of the Aarhus Convention	167	(2)
Content of the Aarhus Convention	169	(8)
General features	169	(2)
Access to information	171	(3)
Public participation	174	(1)
Access to justice	175	(2)
The Role of NGOs in the Aarhus Convention	177	(4)
The negotiating phase	177	(2)
The implementation phase	179	(2)
The Compliance Mechanism	181	(6)
The structure and function of the Aarhus Convention compliance mechanism	181	(1)
NGO participation in the mechanism	182	(2)
Relevance of the Aarhus Convention model	184	(3)
The World Bank Inspection Panel: About Public Participation and Dispute Settlement	187	(18)
Laurence Boisson de Chazournes
Introduction: Evolution of the Inspection Panel's Mandate	187	(2)
Public Participation and the International Decision-making Process: The Path Opened by the World Bank Inspection Panel	189	(6)
The Bank's operational policies and the promotion of the principle of public participation	190	(2)
The concepts of public participation, transparency and accountability at the heart of the Inspection Panel procedure	192	(3)
The Inspection Panel: A Sui Generis Settlement Procedure	195	(7)
Seizing the World Bank Inspection Panel	196	(2)
Course of the procedure	198	(1)
Specific features of the Inspection Panel procedure and subsequent practice	199	(3)
Conclusions: Of the Endogenous and Innovating Nature of the Inspection Panel Procedure	202	(3)
NGOs in Non-Compliance Mechanisms under Multilateral Environmental Agreements: From Tolerance to Recognition?	205	(20)
Cesare Pitea
Reviewing Compliance and the Role of NGOs: Introduction	205	(3)
NGO Participation in Compliance or Implementation Committees	208	(4)
Existing practice	208	(3)
Evaluation	211	(1)
Trigger Mechanism: Hidden Action or Legal Right?	212	(5)
Existing practice	212	(3)
Evaluation	215	(2)
NGOs in Fact-Finding and Assessment Phases	217	(4)
Existing practice	217	(3)
Evaluation	220	(1)
Overcoming States' Resistance: A Prospect for the Future?	221	(1)
Annex: List of Relevant Instruments and Documents	222	(3)
Part IV NGOs and Inter-State and European Disputes	225	(68)
Non-Governmental Organizations and the International Court of Justice	227	(6)
Eduardo Valencia-Ospina
The Statute and Rules: No Role for NGOs	227	(1)
An Indirect Role	228	(2)
The Practice of the ICJ	230	(3)
NGOs and Law of the Sea Disputes	233	(10)
Philippe Gautier
Introduction	233	(2)
Non-state Entities, UNCLOS and the Rules of the Tribunal	235	(2)
Non-state Entities as Parties or Intervening Parties	237	(1)
Participation of Non-state Entities in Proceedings before ITLOS	238	(2)
Practice of ITLOS	240	(2)
Conclusion	242	(1)
CIEL's Experience in WTO Dispute Settlement: Challenges and Complexities from a Practical Point of View	243	(18)
Lise Johnson
Elisabeth Tuerk
Introduction	243	(1)
Experiences	244	(5)
United States -- Import Prohibition of Certain Shrimp and Shrimp Products	244	(1)
European Communities -- Measures affecting Asbestos and Asbestos-Containing Products	245	(2)
European Communities -- Measures affecting the Approval and Marketing of Biotech Products	247	(2)
Political Scenario	249	(5)
Potential roles for amicus curiae briefs	249	(2)
Limits on amicus curiae briefs' potential roles	251	(3)
Mechanics of Submitting an Amicus Curiae Brief	254	(2)
Amicus Curiae Briefs in the Political Reality of Different WTO Members	256	(3)
Conclusion	259	(2)
NGOs and the WTO Dispute Settlement Mechanism	261	(10)
Marcella Distefano
Introductory Remarks	261	(1)
Case Law	262	(5)
Review of the Dispute Settlement Understanding	267	(2)
Future Developments	269	(2)
The Accessibility of European Integration Courts from an NGO Perspective	271	(22)
Jessica Maria Almqvist
Introduction	271	(1)
Role of the European Integration Courts	271	(3)
Civil Society and NGOs	274	(2)
Avenues for Participation in the European Judicial Process	276	(12)
Amicus curiae briefs	276	(1)
Third party interventions	277	(3)
Locus standi	280	(8)
Partial Exclusion: The Case of Public Interest NGOs	288	(2)
Conclusion	290	(3)
Part V Concluding Remarks	293	(20)
The Amicus Curiae in International Courts: Towards Common Procedural Approaches?	295	(18)
Ruth Mackenzie
Introduction	295	(1)
Basic Procedural Approaches to Amicus Curiae Briefs	296	(2)
Objections to Amicus Curiae Submissions	298	(3)
Added value of Amicus Curiae Submissions	299	(1)
Additional burden imposed by amicus curiae submissions	299	(1)
Identity of the potential amicus curiae	300	(1)
Confidentiality and transparency issues	301	(1)
Can Procedural Approaches Meet Concerns about Amicus Curiae Intervention?	301	(8)
Filtering mechanisms: procedures for applications for leave to file an amicus curiae brief	302	(2)
Procedural rules to clarify the role of the amicus curiae brief	304	(1)
Identity of the amicus curiae: disclosure of interests and affiliations	305	(1)
Other procedural rules to manage any additional burden on the court and on the parties	306	(2)
Right to respond	308	(1)
Addressing issues of confidentiality and transparency	309	(1)
Conclusion	309	(4)
Index	313