* Attorney-Adviser for Treaty Affairs, Office of the Legal Adviser, U.S. Department of State. J.D., Boston College Law School, 1996; M.A.L.D., Fletcher School of Law & Diplomacy, 1996; A.B., Bowdoin College, 1992. The views expressed in this Article are those of the author and not those of the Department of State. The author would like to thank Professor Cynthia Lichtenstein, in whose honor the Symposium was held, for the inspiration to pursue a career in international law, and Jo Brooks, Melanie Khanna, and Bart Legum for their helpful comments on an earlier draft of this article.
1 See, e.g., Stephen D. Krasner, Sovereignty: Organized Hypocrisy 3 (1999) (“[A]nalysts have argued that sovereignty is being eroded by one aspect of the contemporary international system, globalization, and others that it is being sustained . . . .”).
2 Id. at 12 (“The inability to regulate the flow of goods, persons, pollutants, diseases, and ideas across territorial boundaries has been described as a loss of sovereignty.”); Leo Gross, The Peace of Westphalia 1648–1948, in Essays on International Law and Organization 3 (A. Rubin ed., 1993) (articulating the notion of a Westphalian legal order based on “states exercising untrammeled sovereignty over certain territories and subordinated to no earthly authority”); Philip R. Trimble, Globalization, International Institutions and the Erosion of National Sovereignty and Democracy, 95 Mich. L. Rev. 1944, 1946 (1997) (“[T]he new conditions loosely associated under the platitudinous rubric of ‘globalism’ pose new and quite visible challenges to national sovereignty . . . .”); see also Kanishka Jayasuriya, Globalization, Law and the Transformation of Sovereignty: The Emergence of Global Regulatory Governance, 6 Ind. J. Global Legal Stud. 425, 425 (1999) (arguing that sovereignty is being transformed since the concept of it as “exclusive territorial jurisdiction—given the shorthand term ‘Westphalian’ . . . is no longer theoretically or empirically serviceable in the face of the internationalization of economic and social activity”).
3 Jack Goldsmith, Sovereignty, International Relations Theory, and International Law: Sovereignty: Organized Hypocrisy, 52 Stan. L. Rev. 959, 959 (2000) (noting conventional wisdom that sovereignty in the sense of a nation’s exclusive and absolute power within its territory “appears to have diminished significantly in the past half century as a result of economic globalization, transportation and communications advances, the rise of nongovernmental organizations (NGOs), and the spread of international human rights law”); Kal Raustiala, Sovereignty and Multilateralism, 1 Chi. J. Int’l L. 401, 418–19 (2000) (“[W]e are increasingly choosing to regulate at the international level. . . . Sovereignty traditionally conceived will necessarily be compromised . . . .”); Trimble, supra note 2, at 1948 (“The creation of activist international institutions necessarily entails more loss of national sovereignty . . . .”).
4 Steve Charnovitz, Opening the WTO to NonGovernmental Interests, 24 Fordham Int’l L. J. 173, 210–11 (2000) [hereinafter Charnovitz I] (noting developing country fears that NGO participation in the WTO may diminish their sovereignty, and discussing how sovereignty can be challenged by NGOs); Trimble, supra note 2, at 1946 (“In the past, international law concerned itself mostly with states and official intergovernmental relations. Now it increasingly concerns itself with private personae, including multinational corporations, as well as governments, and it deals with subjects that traditionally were treated as purely domestic matters.”); see also Eric Stein, International Integration and Democracy: No Love at First Sight, 95 Am. J. Int’l L. 489, 491 (2001) (noting the proliferation of NGOs in the last decade).
5 See infra notes 71–82 and accompanying text.
6 John R. Bolton, Should We Take Global Governance Seriously, 1 Chi. J. Int’l L. 205, 217 (2000) (decrying the loss of sovereignty that can occur through the mobilization of “civil society” in international decision-making); see Charnovitz I, supra note 4, at 199–200, 210–11 (describing statists’ views that nongovernmental interests have no place in intergovernmental organization and that giving non-state actors a role in international decision making is undemocratic and a challenge to state sovereignty).
7 See infra notes 71–82 and accompanying text.
8 See Dinah Shelton, The Participation of Nongovernmental Organizations in International Judicial Proceedings, 88 Am. J. Int’l L. 611, 616 (1994). Amicus briefs suggest to the tribunal matters of fact and law within the amici’s knowledge, and international tribunals may take them into consideration notwithstanding the fact the amici are not able to participate in the proceedings and are not bound by its outcome. Id. at 611.
9 See id. at 611; Padideh Ala’I, Judicial Lobbying at the WTO: The Debate over the Amicus Curiae Briefs and the U.S. Experience, 24 Fordham Int’l L.J. 62, 84–94 (2000) (discussing the U.S. experience with amicus curiae).
10 Shelton, supra note 8, at 612. At the same time, courts may accept amicus briefs because they can contain detailed factual or legal analysis not found in the parties’ arguments. Id. at 618.
11 See, e.g., GATT Appellate Body Report on U.S.—Imp. Prohibition of Certain Shrimp and Shrimp Prods., WT/DS58/AB/R  108 (Oct. 12, 1998), available at 1998 WL 720123 [hereinafter Shrimp Turtle Appellate Report] (finding that WTO panels have authority under the WTO Agreement to accept amicus participation at their discretion); Decision of the Tribunal on Petitions for Intervention and Participation as Amicus Curiae, United Parcel Serv. of Am. Inc. v. Canada,  73 (NAFTA Chap. 11 Trib., Oct. 17, 2001) [hereinafter UPS]. In the case of NAFTA, it should be noted that although two NAFTA tribunals have found authority to accept amicus briefs, to date, no actual amicus briefs have been filed and accepted by a NAFTA tribunal.
12 See Statute of the International Court of Justice, June 26, 1945, art. 38(1)(c), 59 Stat. 1055, T.S. No. 993 [hereinafter ICJ Statute]; see also Peter Malanczuk, Akehurst’s Modern Introduction to International Law 49 (7th ed. 1997) (noting how the principle that a tribunal is competent to decide whether or not it has jurisdiction in cases of doubt was borrowed from national law principles).
13 Ala’I, supra note 9, at 84; Shelton, supra note 8, at 616.
14 See Shelton, supra note 8, at 616 (“[T]he position in France and other civil law countries is to grant broad rights of intervention. Associations and organizations concerned with the environment or human rights participate in cases as intervenors, serving the same purpose as amici in common law countries.”).
15 Shrimp Turtle Appellate Report, supra note 11,  110; GATT Appellate Body Report on U.S.—Imposition of Countervailing Duties on Certain Hot Rolled Lead and Bismuth Carbon Steel Prods. Originating in the U.K., WT/DS138/AB/R  39 (May 10, 2000), available at 2000 WL 569563 [hereinafter British Steel Appellate Report]. There is no provision in the DSU for the submission of amicus curiae briefs. Understanding on Rules and Procedures Governing Settlement of Disputes, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 2, Legal Instruments—Results of the Uruguay Round vol. 31, 33 I.L.M. 1226 (1994) [hereinafter DSU]. The Appellate Body’s finding of tacit authority to permit amicus participation has already been subject to extensive scholarship. Ala’I, supra note 9, at 67–84; Charnovitz I, supra note 4, at 183–90; Andrea Kupfer Schneider, Unfriendly Actions: The Amicus Brief Battle at the WTO, 7 Widener L. Symp. J. 87, 95–101 (2001). The current analysis, therefore, is limited to discussing how the WTO’s dispute settlement system has handled the question of its authority to address amicus participation. For a discussion of WTO member states’ reactions to the dispute settlement system’s handling of the issue, see infra notes 76–82 and accompanying text.
16 Shrimp Turtle Appellate Report, supra note 11,  110. The Shrimp Turtle Panel had rejected briefs submitted by two environmental NGOs on the grounds that it lacked the authority to accept them under the DSU. See GATT Dispute Panel Report on U.S.-Imp. Prohibition of Certain Shrimp and Shrimp Prods., WT/DS58/R  7.8 (May 15, 1998), available at 1998 WL 256632 [hereinafter Shrimp Turtle Panel Report]. In two prior cases, panels had not even acknowledged NGO amicus submissions. See Daniel Pruzin, WTO Appellate Body Under Fire for Move to Accept Amicus Curiae Briefs from NGOs, 47 Int’l Trade Rep. (BNA) 1805 (Nov. 30, 2000) (discussing cases concerning EU Measures concerning Meat and Meat Products and States’ Standards for Reformulated Gasoline). The Shrimp Turtle Panel did indicate that it would accept amicus briefs where a state appended them to its own submissions. Shrimp Turtle Panel Report  7.8.
17 DSU, supra note 15, art. 13.
18 See Shrimp Turtle Appellate Report, supra note 11,  108 (“[A] Panel has the discretionary authority either to accept and consider or to reject information and advice submitted to it, whether requested by a panel or not.”). In several later cases, panels have followed the Appellate Body’s interpretation of the DSU and allowed both solicited and unsolicited amicus briefs, although these panels have not necessarily taken the briefs into account in their decisions. See Ala’I, supra note 9, at 72–77 (discussing a panel’s solicitation of expert amicus opinions in the Australia-Salmon case and more controversial acceptances of unsolicited amicus briefs in cases involving U.S. Copyright, EC-Bed Linen, and EU Measures Affecting Asbestos).
19 Charnovitz I, supra note 4, at 185; Pruzin, supra note 16, at 1805; see also infra notes 76–82 and accompanying text.
20 British Steel Appellate Report, supra note 15,  39.
21 Id.  39–42.
22 DSU, supra note 15, art. 17.9.
23 See British Steel Appellate Report, supra note 15,  38; Appellate Body, Working Procedures for Appellate Review, WT/AB/WP/3 (Feb. 28, 1997).
24 UPS, supra note 11,  61; North American Free Trade Agreement, Dec. 8–17, 1992, 32 I.L.M. 296, 296 (1993), available at http://www.nafta-sec-alena.org/english/index.htm (last visited Mar. 11, 2002).
25 See UPS, supra note 11,  20, 60; U.N. Comm’n on Int’l Trade, UNCITRAL Arbitral Rules, available at http://www.uncitral.org (last visited Mar. 8, 2002).
26 UPS, supra note 11,  61. In so ruling, the Tribunal noted that amicus participation was consistent with NAFTA itself as nothing in allowing amicus briefs contravened the right of NAFTA parties to intervene in a case, or the ability of the Tribunal to seek independent expert advice on specialized factual matters, both of which were authorities explicitly provided by NAFTA Articles 1128 and 1133. Id.  62.
27 Methanex Corp. v. United States, 16 Mealey’s Int’l Arb. Rep. D-1,  5 (NAFTA Ch. 11 Trib., Jan. 15, 2001) [hereinafter Methanex]. The Tribunal saw its ability to accept amicus briefs as the exercise of a procedural power, not equivalent to accepting an intervenor as a full party to a case. See id.  29–31. For example, NAFTA amici have no rights to receive any of the materials generated by the arbitration; their access to the case’s proceedings is like any other member of the public. Id.  46.
28 Id.  32; UPS, supra note 11,  64 (citing Iran v. United States, Case A/15, 2 Iran-U.S. Cl. Trib. Rep. 40, 43, where foreign banks were able to submit their own memoranda to the Tribunal). Moreover, the NAFTA Tribunals noted that Article 15(1) was worded more broadly than the language on which the British Steel Appellate Report had relied in finding a discretionary authority to accept WTO amici participation. See Methanex, supra note 27,  33.
29 Methanex, supra note 27,  34 (citing ICJ Statute, supra note 12, arts. 34, 35, 61–64); UPS, supra note 11,  64. But see Shelton, supra note 8, at 623–24 (noting that the ICJ did accept one amicus brief from an NGO in the 1950 South-West Africa advisory proceeding, but rejected the same NGO’s request to submit a brief in the contentious 1950 Asylum case).
30 Methanex, supra note 27,  47; UPS, supra note 11,  65.
31 Shelton, supra note 8, at 629, 631–32, 638.
32 Preparatory Commission for the International Criminal Court, Finalized Draft Text of the Rules of Procedure and Evidence, June 30, 2000, Doc. PCNICC/2000/1/Add.1 (Nov. 20, 2000), available at http://www.un.org/law/icc/prepcom/prepfra.htm (last visited Mar. 8, 2002).
33 Whether individuals, and thus NGOs, are formally considered subjects of international law is a debate this Article does not address. See Ian Brownlie, Principles of Public International Law 605 (5th ed. 1998) (“[C]ontroversy as to whether the individual is a subject of law is not always very fruitful in practical terms, and the issue is always viewed with the idea of proving that he is a subject vel non. He probably is in particular contexts . . . .”); L. Oppenheim, 1 International Law 639 (H. Lauterpacht ed., 8th ed. 1955) (“[F]act that individuals are normally the object of International Law does not mean that they are not, in certain cases, the direct subjects thereof”); Alexander Orakhelashvili, The Position of the Individual in International Law, 31 Cal. W. Int’l L.J. 241, 252 (2001) (“[T]he distinction between the nature of legal capacity of State and international organizations on the one hand, and individuals on the other, is apparent. The individual does not have any legal capacity under general international law.”). Without prejudice to that debate, the current study examines the role individuals and NGOs have in the formation and application of international law, not with a view to establishing their own place in the international legal order, but rather examining the impact such activities have on the principal actor in that order—the sovereign state.
34 See, e.g., Steve Charnovitz, Two Centuries of Participation: NGOs and International Governance, 18 Mich. J. Int’l L. 183, 280–81 (1997) [hereinafter Charnovitz II].
35 NGOs represented on the U.S. delegation included the World Wildlife Fund and the Audubon Society, while the U.S. fishing industry was represented by the U.S. Tuna Foundation, the American Fishermen’s Research Foundation, and the Western Fishboat Owner’s Association.
36 The Constitution of the ILO provides that each member state has four delegates to the organization—two from the state’s government, one representing the employers in the state, and one representing workers in the state—each of whom votes individually. See Int’l Labour Org. Const., as amended, arts. 3.1, 4.1, available at http://www.ilo.org/ public/english/about/iloconst.htm (last visited Mar. 8, 2002).
37 See, e.g., Charnovitz II, supra note 34, at 281. Although the general rule is that NGOs have no negotiating role, in some rare cases NGOs have participated and signed the final act at an official conference to draft a treaty, as was the case with the International Chamber of Commerce at the League of Nation’s Conference on Customs Formalities. Id.
38 Id. at 264.
39 Mahnoush H. Arsanjani, The Rome Statute of the International Criminal Court, 93 Am. J. Int’l L. 22, 23 (1999); M. Cherif Bassiouni, Negotiating the Treaty of Rome on the Establishment of an International Criminal Court, 32 Cornell Int’l L.J. 443, 455 (1999) (counting 238 NGOs at the Rome conference).
40 See, e.g., Edith Brown Weiss, The Rise or the Fall of International Law?, 69 Fordham L. Rev. 345, 350 (2000) (recalling that at the negotiations for the Framework Convention on Climate Change and the Kyoto Protocol NGOs distributed information, prepared agreed positions on issues, and developed a draft text of the Convention as an advocate to governments).
41 See Henry G. Schermers & Niels M. Blokker, International Institutional Law 126–28 (3d ed. 1995). The Council of Europe currently recognizes 423 NGOs as having consultative status, who not only meet independently but also select twenty-five NGOs to act as liaisons with the Council itself. See id. at 133; Liaison Committee of the Non-Governmental Organizations Enjoying Consultative Status with the Council of Europe, Report of 2001 Plenary Conference of NGOs (Jan. 23, 2001), available at http://www.ngo.coe. int/English%20Site/Plenary_Conference/reports.htm (last visited Mar. 8, 2002). In the case of the World Tourist Organization, there is a category of affiliate membership, open to NGOs, commercial bodies, and associations, from which three are selected as observers to the Organization’s Congress and one selected as an observer to its Board. See Schermers & Blokker, supra, at 118-19; World Tourism Organization, About WTO, at http://www.world-tourism.org// aboutwto/aboutwto.html (last visited Mar. 4, 2002). Such participation is not limited to NGOs; several private companies serve as members of the Consultative Committees of the International Telecommunications Union, enjoying all the privileges of membership except the right to vote in plenary meetings when their state is also represented. Schermers & Blokker, supra, at 133–34.
42 For a list of the registry, see U.N. Economic & Social Council Non-Governmental Organizations Section, Economic and Social Council Non-Governmental Organizations, at http://www.un.org/esa/coordination/ngo (last visited Mar. 8, 2002) (listing 2091 NGOs in consultative status with ECOSOC). Article 71 of the U.N. Charter provides that ECOSOC may “make suitable arrangements for consultation with non-governmental organizations which are concerned with matters within its competence.” U.N. Charter art. 71. These NGOs are subdivided into three categories—those concerned with most of the activities of the ECOSOC (Category I), those concerned with only a few fields of activities covered by ECOSOC (Category II), and those not closely related to the work of ECOSOC but of sufficient importance to be related in some way to the U.N. (Organizations on the Roster). See Schermers & Blokker, supra note 41, at 130. ECOSOC consults with all these organizations through a Committee on Non-Governmental Organizations made up of nineteen government representatives. Although the results have been very limited in practice, Category I & II organizations are permitted to submit limited written statements, and in a few circumstances, speak in the ECOSOC, while Organizations on the Roster may only submit written statements at the request of the Secretary General. See id. at 131.
43 Schermers & Blokker, supra note 41, at 33; Charnovitz II, supra note 34, at 271. The ICRC has also played a significant role in the formation of international humanitarian law, most recently in its efforts to ensure international legal norms on the explosive remnants of war. For more on these efforts, see Press Release 01/68, IRCR, Explosive Remnants of International War: ICRC Calls for New International Agreement (Dec. 11, 2001), available at http://www.icrc.org/eng/news (last visited Mar. 8, 2002).
44 See Charnovitz II, supra note 34, at 271. Calls by NGOs and others for compliance with international legal standards, of course, have no legal effect in and of themselves, but depending on the context of the reports, may influence how states or international organizations apply the law. See id. at 269.
45 See North American Agreement on Environmental Cooperation, Sept. 8–14, 1993, arts. 14–15, 32 I.L.M. 1482 (1993) [hereinafter NAAEC]; Charnovitz II, supra note 34, at 272. Private parties submit their petitions to the NAAEC Secretariat where they are “aimed at promoting enforcement rather than at harassing industry.” The Secretariat may request a government to respond to the allegations, and in cases where two of the three states’ representatives agree, prepare a factual record and release it to the public. NAAEC arts. 14(2), 15.
46 See Chi Carmody, Beyond the Proposals: Public Participation in International Economic Law, 15 Am. U. Int’l L. Rev. 1321, 1329 (2000). Set up in 1993, the Inspection Panel reviews complaints and makes recommendations to the Bank’s Board of Directors on which ones to investigate, with an actual investigation by the Panel coming only with the Board’s approval. Schermers & Blokker, supra note 41, at 450–51. The Panel’s conclusions are advisory only and final decisions rest with the Board. Id. Interestingly, the Panel’s Operating Procedures do allow for private actor participation; any member of the public can provide the Panel with written views not to exceed ten pages. Carmody, supra, at 1332.
47 Agreement on the International Dolphin Conservation Program, May 15, 1998, Annex VII(2), available at http://www.state.gov/www/global/oes/oceans/dolphin.html (last visited Mar. 8, 2002). NGO representatives are selected by an election of the states’ parties from a slate of candidates submitted by the relevant NGOs. See id. Annex VII(4).
48 Id. Annex VII(1).
49 Charnovtiz II, supra note 34, at 185.
50 Id. at 196–97.
51 See Raustiala, supra note 3, at 401.
52 Malanczuk, supra note 12, at 17; Krasner, supra note 1, at 11. It is worth noting that theorists such as Locke, Mill, and Marx have all challenged this approach as not necessarily reflecting the divisions of authority that exist within most states. Krasner, supra note 1, at 11.
53 Malanczuk, supra note 12, at 17.
54 See Krasner, supra note 1, at 3–4; see also Goldsmith, supra note 3, at 967 (noting that the traditional conception of sovereignty reflected the right of a state to determine its own Constitution, its own commercial policies, and to treat its subjects according to its discretion). Krasner notes that this concept of sovereignty is often called Westphalian sovereignty, although the principle that it reflects “had virtually nothing to do with the Peace of Westphalia.” Krasner, supra note 1, at 20. Accordingly, that term is not used herein.
55 See supra notes 2–4 and accompanying text.
56 Jayasuriya, supra note 2, at 428 (“[E]xtensive international effort to regulate environmental, health, weapons and even human rights standards bears witness to this trend toward international regulation . . . .”); Trimble, supra note 2, at 1946 (providing that international law now “deals with subjects that traditionally were treated as purely domestic matters”).
57 Schermers & Blokker, supra note 41, at 4 (“The present substance of international law includes a number of issues that previously belonged to the exclusive jurisdiction of states. Trade and monetary policy, social policy, human rights, environment protection are some striking examples.”).
58 Krasner, supra note 1, at 24–25; see also Schermers & Blokker, supra note 41, at 2 (noting the tension between formal independence, or sovereignty, of states and their actual interdependence).
59 See Krasner, supra note 1, at 73, 75.
60 Gross, supra note 2, at 5. Similar protections for both religious and ethnic rights can be found in treaties throughout the 17th, 18th, and 19th centuries. Id. at 5–7; Goldsmith, supra note 3, at 968.
61 See Krasner, supra note 1, at 128.
62 See id. at 14–20 (distinguishing international legal sovereignty from three other types of sovereignty—Westphalian, domestic, and interdependent); Chayes & Chayes, The New Sovereignty 27 (1995) (“Sovereignty no longer consists in the freedom of states to act independently, in their perceived self-interest, but in membership in reasonably good standing in the regimes that make up the substance of international life.”). Krasner also critiques international sovereignty, finding that it too has been subject to breach, i.e., states recognizing non-state actors as states or refusing to recognize entities that otherwise qualify as states, but later notes that the tension between the rule and actual practice is less severe than the case of the absolute domestic jurisdiction theory of sovereignty. See Krasner, supra note 1, at 25.
63 Chayes & Chayes, supra note 62, at 27; Raustiala, supra note 3, at 417–18.
64 Brownlie, supra note 33, at 57–58 (defining a legal person as “an entity of a type recognized by customary international law as capable of possessing rights and duties and of bringing international claims, and having these capacities conferred upon it”).
65 See id. at 57.
66 Schermers & Blokker, supra note 41, at 5.
67 See Brownlie, supra note 33, at 2.
68 Id. at 57–58, 678–81.
69 Charnovitz II, supra note 34, at 286 (“Before the League of Nations, there were few international organizations built by diplomats without advance work by NGOs and visionary individuals. The League provided for NGO involvement in its early years, but then NGOs were squeezed out in favor of routinized governmental interaction. . . . The decade of the 1990s has provided new opportunities for NGO participation.”).
70 See GATT Appellate Body Report on Eur. Cmty.—Measures Affecting Asbestos and Asbestos-Containing Prods., WT/DS135/AB/R (Mar. 12, 2001), available at 2001 WL 256081 [hereinafter Asbestos Appellate Report].
71 Id.  50–51.
72 See Pruzin, supra note 16, at 1805.
73 Asbestos Appellate Report, supra note 70,  50–51; see supra note 23 and accompanying text.
74 Asbestos Appellate Report, supra note 70, 52(3)(f).
75 See id.  55–57.
76 For a detailed account of the WTO Minutes, see WTO General Council, Minutes of WTO General Council Meeting, WT/GC/M/60 (Nov. 22, 2000), available at http://www.wto.org/english/thewto_e/gcounc_e/gcounc_e.htm (last visited Mar. 8, 2002) [hereinafter General Council Minutes].
77 See id.  74–77 (expressing the views of the United States). None of the other twenty-eight member delegations that took the floor at the General Council Meeting endorsed the Appellate Body’s approach. Although a number of states appeared willing to concede that amicus participation before dispute settlement panels was less controversial, only three states—the United States, New Zealand, and Japan—indicated support for the Appellate Body’s earlier ad hoc acceptance of amicus briefs. See id.  76, 87, 111; see also id.  13, 25, 63, 79, 98, 102 (expressing the views of Egypt, Hong Kong, Switzerland, Turkey, Chile, and Panama noting the differing authorities of panels and the appellate body with respect to non-party participation).
78 See id.  6, 10-12, 39, 42, 50, 54, 63, 70, 78, 79, 89, 93, 97, 98, 106, 112 (expressing the views of Uruguay, Egypt, India, Brazil, Mexico, Columbia, Switzerland, Costa Rica, Bolivia, Turkey, Jamaica, Argentina, Cuba, Chile, Tanzania, and Japan that the Appellate Body’s procedural rules for amicus participation in the Asbestos case went beyond its mandate). It should be noted that a number of states at the session (e.g., Egypt, Columbia, and Singapore) spoke as representatives of groups of states (e.g., the Informal Group of Developing Countries, ANDEAN, ASEAN, etc.).
79 See General Council Minutes, supra note 76,  9, 15, 22, 38, 52, 55, 58, 61, 64, 69, 73, 81, 83, 87, 96, 105, 107 (views of Uruguay, Egypt, Hong Kong, India, Mexico, Columbia, Zimbabwe, Singapore, Switzerland, Norway, Canada, Turkey, Hungary, New Zealand, European Communities, Australia, and Tanzania that issue of amicus participation was responsibility of WTO members to resolve). Delegations also complained that allowing rules on amicus participation granted procedural rights beyond those available to WTO members who were not parties or third parties to an Appellate Body proceeding. See id.  7 (expressing the views of Uruguay). Others pointed out that the issue of amicus participation had been raised during the negotiation of the DSU and not adopted. See id.  50 (expressing the views of Mexico).
80 See id.  6 (expressing the views of Uruguay); Marrakesh Agreement Establishing the World Trade Organization, Apr. 15, 1994, Legal Instruments—Results of the Uruguay Round vol. 1, 33 I.L.M. 1144 (1994) [hereinafter WTO Agreement].
81 General Council Minutes, supra note 76,  120.
82 Asbestos Appellate Report, supra note 70,  56.
83 See supra notes 8–32 and accompanying texts.
84 General Council Minutes, supra note 76,  65 (providing that Pakistan notes importance of Members retaining confidence in the dispute settlement system); id.  107 (setting forth Tanzania’s statement that, “The General Council had the authority to interpret the WTO Agreements . . . the will of Members should prevail [on allowing amicus participation] and that no other body, even the Appellate Body could claim what Members had not intended to give it.”).
85 See id.  73 (expressing Canadian views noting that issues surrounding amicus participation “could not be characterized as exclusively procedural”).
86 See id.  119–20 (providing a statement of the General Council Chairman summarizing views expressed during the Special Session).
87 Most recently in a second Shrimp Turtle Appellate Body case, the Appellate Body received two amicus briefs (one of which was sent directly to the Appellate Body and attached to the brief of the United States). In neither case did the Appellate Body take the views expressed into consideration. Indeed, in the case of the brief that the United States attached to its own pleadings, the Appellate Body, upon learning that the United States regarded them as independent views, focused its attention only on the legal arguments in the U.S. submission. GATT Appellate Body Report on U.S.–Imp. Prohibition of Certain Shrimp and Shrimp Prods., WT/DS58/AB/RW  76–78 (Oct. 22, 2001).
88 WTO membership, for example, is not limited to states. A number of non-state actors are WTO members, e.g., Hong Kong and the European Communities, having the same rights and duties under the WTO Agreement as states, although the EC does not have a vote separate from and in addition to its Member states. See WTO Agreement, supra note 80, arts. IX, XII, XIV.