[*PG235]PRIVATE ACTORS IN PUBLIC INTERNATIONAL LAW: AMICUS CURIAE AND THE CASE FOR THE RETENTION OF STATE SOVEREIGNTY

Duncan B. Hollis*

Abstract:  Recent debates regarding the impact of globalization on state sovereignty have led some to conclude that globalization is eroding such sovereignty. This Article challenges that conclusion. It argues that neither the current frenzy of private actor participation in international fora nor the law-making functions of international organizations at which such activity is directed supplants state sovereignty in some zero-sum game paradigm. Examining the emergence of amicus curiae in international dispute settlement—specifically the controversy over amici participation in the WTO Asbestos case—the Article concludes that both private actor participation in international law and the exercise of law-making authorities by international organizations has occurred, and can only continue to occur, with the consent of states.

Introduction

As the title of this Symposium—Globalization and the Erosion of Sovereignty—suggests, scholars are devoting increasing attention to the relationship between globalization and the sovereignty of states.1 Specifically, scholars debate whether globalization, in the sense of increasing transnational movement of capital, goods, people, pollution, diseases, and ideas, is eroding the sovereignty of states, which has served as the central tenet of the international legal order since the [*PG236]Peace of Westphalia in 1648.2 Proponents of this viewpoint generally cite two developments in making their case. First, they claim that sovereign states, originally defined as entities subject to no external authority or control, now increasingly find themselves subject to international regulation that has radically diminished the areas where they are free from external influence.3 Second, they posit that states no longer dominate the international landscape, as international organizations and private actors (e.g., multinational corporations, non-governmental organizations (NGOs), and even individuals) exercise increasing influence in the creation, implementation, and enforcement of international norms.4

Discussing the expanding role of private actors in public international law, therefore, necessarily involves a discussion of sovereignty. [*PG237]The controversy surrounding the amicus curiae is no exception.5 In various contexts, international dispute settlement bodies are now wrestling with what role, if any, to give to private actors such as NGOs that petition to have their views on a particular case heard. To some, allowing the voices of these private interests to be heard in disputes in which they would otherwise have no standing constitutes another wave of evidence that the sovereignty of states is being eroded; that state actors are being weakened by the presence and participation of non-state actors in public international law.6

By examining the case of the amicus curiae more closely, however, it becomes clear that it need not serve as further evidence of the erosion of sovereignty; to the contrary, one can view these developments as confirming sovereignty’s continuing vitality. Indeed, taking a broader view, it is not accurate to say that either the current frenzy of private actor participation in international fora or the law-making functions of international organizations at which such activity is directed supplants or erodes state sovereignty in some zero-sum game paradigm. As the case of the amicus illustrates, both private actor participation and the law-making authorities of international organizations have occurred, and can only continue to occur, with the consent of states. States remain at the epicenter of international law—their activities continue to dictate not only what the law is today, but also who determines what the law is tomorrow.

To understand this perspective, this Article first briefly examines the context in which international tribunals are permitting amicus curiae filings, including not only the amicus cases themselves, but also the broader context of private actor participation in public international law generally. This Article then explores some of the various meanings that can be attributed to the concept of sovereignty, and, relying on an international conception of the term, demonstrates how, looking at the World Trade Organization (WTO) Asbestos controversy as a case-study, states do not need to view the role of private [*PG238]actors in public international law as a necessary devolution of their sovereignty.7

I.  Amicus Curiae Briefs

How does the concept of amicus curiae arise in international law? Basically, it becomes an issue whenever an international tribunal decides to permit one or more private actors to present to the tribunal their views on a case.8 These views are expressed in written briefs and labeled amicus curiae, literally, “friend of the court,” following the Anglo-American tradition.9 Private actors, such as NGOs, industry representatives, or even individuals, seek to submit such briefs because they generally have no right to initiate an international case or intervene as a party, and the case’s outcome may affect non-parties.10 Amicus briefs have been filed and accepted in disputes between states, e.g., within the WTO Dispute Settlement system, and have been considered acceptable in disputes between a state and a private actor, e.g., in NAFTA Chapter 11 Investor-State Arbitrations, as well.11

Where does an international tribunal derive its power to permit amicus participation? One could posit, based on the practice of municipal legal systems, that such authority is afforded to all tribunals as a general principle of international law, much like the principle that [*PG239]tribunals have the authority to establish their own jurisdiction.12 Indeed, amicus curiae date back to Roman law and remain a highly visible component of common law systems, most notably, in the United States.13 Even in some civil law systems where amicus participation is not explicitly recognized, one finds the functional equivalent of such a role through the broad rights of intervention made available to interested persons by courts.14

International tribunals have not, however, based their authority to permit amicus participation on a general principle of international law. Instead, they generally make a consensual justification—relying on their constituent treaty as evidence that the states creating that instrument gave them sufficient powers, either explicitly or tacitly, to permit private parties to be heard where it was deemed appropriate.

For example, at the WTO, the Appellate Body has found that both dispute panels and the Appellate Body itself have tacit authority under the WTO Dispute Settlement Understanding (DSU) to admit amicus participation.15 In the Shrimp Turtle case, the Appellate Body overruled a panel’s rejection of amicus briefs by reasoning that DSU Article 13 gives panels the discretion to accept amicus participation.16 [*PG240]Neither Article 13 nor any other article of the DSU includes an explicit provision for the submission of amicus briefs. Nevertheless, Article 13 does provide that, “[e]ach panel shall have the right to seek information and technical advice from any individual or body which it deems appropriate. . . . Panels may seek information from any relevant source and may consult experts to obtain their opinion in certain aspects of the matter.”17 According to the Appellate Body, Article 13 gave the Shrimp Turtle panel the authority to review or ignore any information, including NGO submissions, regardless of whether the panel had explicitly sought the information in the first place.18 A number of governments criticized the Appellate Body’s decision on the grounds that it was not supported by the DSU, an outcry that crested with the Asbestos case discussed below.19

In the British Steel Appellate Report, the Appellate Body found that it also had discretionary authority to accept and consider amicus submissions during the appellate review process.20 Although it concluded that it would not take the particular briefs it had received into account, the Appellate Body reasoned that Article 17.9 of the DSU gave it broad discretionary authority that allowed it to accept such briefs.21 DSU Article 17.9 provides the Appellate Body with authority to adopt procedural rules that do not conflict with rules and proce[*PG241]dures of the DSU or the covered WTO agreements.22 The Appellate Body also relied on the fact that, pursuant to Article 17.9, it had established Working Procedures, including Rule 16(1), which authorized the creation of appropriate procedures when a question arises that is not covered by the Working Procedures.23 Thus, the Appellate Body, as it did in the Shrimp Turtle Appellate Report with respect to panel action, made a textual analysis of its constitutive document, the DSU, to find implied authority to permit amicus participation.

Such a textual analysis of the amicus question by tribunals is not limited to the WTO. NAFTA Chapter 11 investor-state arbitral tribunals have engaged in similar reasoning. In an October 17, 2001, arbitral decision, United Parcel Services of America, Inc. v. Canada, a NAFTA Tribunal confirmed its power to permit amicus briefs on the grounds that NAFTA’s dispute settlement provisions, NAFTA Article 1120, authorized the Tribunal to proceed on the basis of the UNCITRAL Arbitration Rules.24 The Tribunal found that Article 15(1) of UNCITRAL’s rules, in turn, tacitly gave it authority to accept amicus briefs since it authorized the Tribunal to “conduct the arbitration in such manner as it considers appropriate, provided that the parties are treated with equality and that at any stage in the proceedings each party is given a full opportunity of presenting his case.”25 The Tribunal concluded that its authority to accept amicus briefs was appropriate so long as such participation did not affect the rights of the disputing parties.26

The UPS decision reached the same conclusions as an earlier NAFTA Chapter 11 decision, Methanex Corp. v. United States, which also invoked UNCITRAL Article 15(1) as the implied basis for amici participation.27 In both cases, the tribunals supported their reliance on [*PG242]Article 15(1) by noting that the U.S.-Iran Claims Tribunal had rendered the same result in Case A/15.28 They contrasted such findings with the practice of the International Court of Justice (ICJ) of not accepting participation by anyone other than states, and in certain cases, public international organizations, because the ICJ Statute itself so limited the court’s authority.29 Finally, both tribunals declined to consider as decisive the existence of amicus rules in the domestic laws of two of the NAFTA parties in favor of a tacit textual analysis of UNCITRAL Article 15(1).30

The approach by international tribunals to private participation in these cases—i.e., looking to their own authorities to find an explicit, or in most cases, a tacit grant of authority to allow amici participation—is not limited to the trade context. As Professor Shelton detailed in 1994, other tribunals, notably the European Court of Justice, the European Court of Human Rights, and the Inter-American Court of Human Rights are all examples where, with explicit or tacit authorization, international tribunals have permitted private actors to serve an amicus function.31 To this list, one might soon add the International Criminal Court (ICC); Rule 103 of the draft ICC Rules of Procedure provides that the ICC may, if it deems it desirable, “[a]t any stage of the proceedings . . . invite or grant leave to a State, organization or person to submit, in writing or orally, any observation on any issue that the Chamber deems appropriate.”32

[*PG243] Thus, the so-called case of the amicus, which, as discussed below, has recently been so controversial at the WTO, is, with the notable exception of the ICJ, a relatively widespread phenomenon in modern international dispute settlements. It is, however, a phenomenon that has emerged with the consent of states, not in spite of them. Even where the participation is limited to an amicus role, international tribunals have looked to their constitutive instruments to determine whether the states that created those instruments either expressly or tacitly authorized them to involve private actors in the proceedings.

II.  Private Actors and the International Legal Order

The limited participation by private actors as amici in international dispute settlement is consistent with the practice of private actor participation in international law generally, most notably NGOs. Although states and, to a lesser extent, public international organizations create, implement, and enforce international law, private actors play some role in that process.33 Looking at the activities of individuals, and more specifically NGOs, one finds evidence of an influence both in the formation and the application of international law, albeit one that is qualitatively and quantitatively less than that of states and international organizations.34

Private actors engage in the formation of international law in various ways. They can, at the request of a government, serve on national delegations to conferences that negotiate and adopt treaties. For example, the U.S. delegation to the conference that negotiated [*PG244]the 2000 Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean included representatives not only from the U.S. Department of State and other federal agencies, but representatives from environmental NGOs and the U.S. fishing industry as well.35 Although such participation is controlled by the national government, in the case of the International Labor Organization (ILO) national delegations include private representatives who are able to act independently of their governments.36

Where states have agreed to open negotiations, NGOs and other private actors have also come to play a significant independent role as observers in conferences to negotiate various multilateral treaties. Although they generally do not have a role in the formal negotiations or the treaty’s final adoption, as observers, NGOs and other private actors may speak before the conference, make proposals, and substantially influence the negotiation’s outcome.37 For example, NGOs played a significant role in drafting the U.N. Convention on the Rights of the Child.38 More recently, 236 NGOs participated in the conference that negotiated the Rome Treaty, playing a widely acknowledged role in bringing the states to agreement. 39 Similar NGO involvement has also been recorded in climate change negotiations.40 Thus, although it may not always be formal, and is certainly not uni[*PG245]versal, the role of NGOs and other private actors in influencing the norms adopted in various multilateral negotiations is undeniable.

Limited private actor participation in the formation of international law is replicated in its application. Just as they act as observers at treaty negotiations, NGOs may be permitted to occupy a more permanent role as observers to various public international organizations.41 Thus, the U.N. Economic and Social Council (ECOSOC) currently maintains a registry of 2091 NGOs that are eligible to engage in certain limited and defined actions before the ECOSOC.42 NGOs can also act as advocates, making presentations to states favoring the adoption of a particular interpretation of international law. Although recognized as a sui generis NGO given its status under the four 1949 Geneva Conventions and the 1977 Additional Protocols, the International Committee of the Red Cross (ICRC) has a long history of playing a role in monitoring how states apply international humanitarian [*PG246]law.43 NGOs also publish reports analyzing how states are meeting their international legal obligations, most often in the human rights context.44

In certain situations, private actors may petition states or international organizations directly about whether particular acts conform to international law. For example, in a side agreement to NAFTA—the North American Agreement on Environmental Cooperation—Canada, Mexico, and the United States authorized private parties to submit allegations that any one of the three states had failed to enforce its environmental laws effectively.45 At the World Bank, NGOs or groups of individuals may request an Inspection Panel to investigate claims of injury arising out of an act or omission of the Bank resulting from its failure to follow operational policies and procedures with respect to the design, appraisal, and/or implementation of a Bank project.46

Private parties may even participate directly with states in reviewing the implementation of an international agreement. The 1998 Agreement on the International Dolphin Conservation Program provides for an International Review Panel (IRP), made up not only of representatives of the parties, but also three representatives from ex[*PG247]perienced environmental NGOs and three representatives from the affected tuna industry.47 IRP responsibilities include, inter alia, analysis of reports submitted to the IRP regarding fishing by vessels covered by the Agreement, identification of possible infractions of the Agreement, and coordination with the party whose flag the vessel flies of possible infractions and any enforcement actions taken with respect to that vessel.48

Moreover, it is a mistake to assume that these examples of private actor participation in the international legal order reflect an entirely new phenomenon. As Steve Charnovitz’s enlightening article, Two Centuries of NGO Participation in International Governance, articulates, NGO participation in international affairs is a well-established practice that has at various periods in the past exercised an influence on international law.49 For example, numerous peace societies at the Hague Peace Conferences in 1899 and 1907 engaged in lobbying and mass publicity much like modern-day NGO activities at multilateral treaty negotiations.50 Thus, although one can consider the current level of private actor activity in the international legal order to be at a high-water mark, it is not without precedent. As with amici, moreover, such participation has occurred because states have consented to NGOs and others playing a role in particular fora or processes engaged in the formation and implementation of international law.

III.  Sovereignty Reconsidered

Thus, looking at the scope of existing private actor participation in international law from both the perspective of the amicus curiae and the more general practice of NGOs, the debate is not whether private actors should participate in international law at all, but the extent to which they should participate. It is the increased participation of private actors in the international legal order, together with a more vigorous role for international organizations, that has, in turn, led to claims that the role of the state in that order is eroding; i.e., that private actor participation diminishes the sovereignty of states. [*PG248]Such claims do not, however, withstand scrutiny if one examines the concept of sovereignty more closely.

The term sovereignty has always been susceptible to various meanings.51 As originally expressed in the works of Machiavelli, Bodin, and Hobbes, it served as an attempt to localize a single supreme legislative and political authority within the internal structure of a polity.52 As a corollary to this theory, the term sovereignty came to describe not only the relationship between a supreme authority and its subjects within a state, but also the relationship of that authority with other states.53 Simply put, sovereignty could be considered a form of absolute domestic jurisdiction—the exclusion of external actors from domestic authority structures within a given territory.54

It is this domestic jurisdiction concept of sovereignty that many argue is subject to erosion at the hands of globalization, the increasing power of international organizations, and the expanding role of private actors in international law.55 That perspective has an obvious appeal. There is no doubt that international law recognizes fewer topics today as within the reserved domain of states’ respective domestic jurisdictions.56 Topics such as monetary policy, human rights, and environmental protection, which were all previously considered within the sole purview of individual state actors to address as they sought fit within their borders, are now all recognized as appropriate subjects for international regulation by agreement among states.57

[*PG249] Ultimately, however, as Stephen Kramer argues in Sovereignty: Organized Hypocrisy, it is a fallacy to say that there ever was such a system of sovereign states, each having absolute domestic jurisdiction over its territory to the exclusion of all other states.58 To the contrary, states have always been subject to external normative influences. The Peace of Westphalia, most often cited as the source of the notion of sovereign states operating within their domestic jurisdictions free from the influence of outside actors, itself included derogations from this principle.59 The Treaty of Osnabrück contained conditions by which the parties agreed to allow religious minorities under their respective jurisdictions freedom of religion.60 The reality of state interaction further belies the notion that states have ever been free from external interference. The Gunboat Diplomacy of the 19th century serves as a stark example of how the domestic jurisdiction theory of sovereignty reflected a theoretical construct more than a practical reality.61

Such difficulties in lining up the absolute domestic jurisdiction theory of sovereignty with actual state practice make it worthwhile to examine alternative conceptions of sovereignty. Among these, one stands out—international sovereignty—as more accurately reflecting the reality of state behavior on the international plane.62 International sovereignty conceives of sovereignty not in terms of domestic jurisdiction, but in terms of status in the international community.63 It is most often characterized in terms of membership in a community of equally sovereign states, but it perhaps can be better understood [*PG250]through association with the concept of international legal personality—the capacity to exercise rights and duties in the international legal order.64 Specifically, states having international sovereignty have the general capacity to operate internationally. They can, inter alia, make international claims, participate in international adjudications, and engage in both the formation and application of international law through treaties and/or custom.65

It is this concept of international sovereignty—the notion of states having international legal personality—that is reinforced rather than eroded by recent examples of private actor participation and international institutional law-making. As Schermers and Blokker emphasize in their classic treatise, International Institutional Law,[t]he fact that during the twentieth century public international law has imposed substantial limitations upon the freedom of states does not take away their legal status as sovereign entities as long as the essence of state functions are retained.”66

Indeed, if private actor participation or international institutional law-making were eroding a state’s international sovereignty, then presumably their views and their consent would matter less. One would no longer be able to say that the general consent of states creates rules of general application. One would no longer need to see if states accept the legitimacy of international organization activities or the participation of private actors in the formation or application of international law.

The truth, however, is that no such state of affairs exists. The general consent of states creating rules of general application remains the operating principle of the international legal order.67 By treaty or by practice, it is states whose conduct determines the rules of international law. What has changed is that states have opened the door to allow others some limited level of international sovereignty. Modern states recognize the ability of other actors to have rights and duties on the international plane, a status that, while certainly not equal to states, is sufficient for those actors to participate in the formation, implementation, and even the enforcement of international law. Public international organizations have had such a status for some time [*PG251]now.68 Private actors are now seeking to gain, or in some cases reestablish,69 recognition of their own limited international sovereignty.

IV.  Exercising Sovereignty in the WTO Asbestos Controversy

It would be a mistake to see this situation as a zero-sum game—the notion that new subjects of international law mean that the old subjects, states, lose their status or have it eroded in some way. They have not. Indeed, the controversy over amicus participation in the Asbestos case serves as a prime example of the continuing vitality of the international sovereignty of states in the very context, i.e., the WTO, that so many allege is leading to sovereignty’s erosion.70

In the Asbestos case, the Appellate Body, relying on the fact that the underlying panel had received five amicus submissions (of which two were taken into account), adopted rules for how it would process amicus submissions, which were subsequently posted on the WTO website.71 This represented a departure from its prior practice of accepting amicus briefs only when they either were attached to the parties’ briefs or were unsolicited.72 The Appellate Body justified the move on the same bases it had previously cited for amicus participation—Article 17.9 of the DSU and Rule 16(1) of its Working Procedures.73 In the procedures themselves, the Appellate Body required NGOs wishing to submit an amicus brief to apply for leave in advance by showing, inter alia, how “the applicant will make a contribution to the resolution of this dispute that is not likely to be repetitive of what has already been submitted by a party or third party to this dispute.”74 The Appellate Body received eleven timely applications (and six untimely ones) from environmental NGOs, victims rights groups, the [*PG252]chemical trade industry, professional health societies, and academics.75

At Egypt’s request, the WTO General Council held a special session on November 22, 2000 to discuss the Appellate Body’s procedures.76 With the exception of the United States, which took the view that the Appellate Body had the authority under the DSU to allow amicus participation and, therefore, the authority to adopt procedures governing such participation, WTO member delegations were highly critical of the Appellate Body’s actions.77 Two arguments in particular dominated the session. First, the majority of delegations took the view that the Appellate Body’s adoption of rules of procedure for amicus participation went beyond its authorities under the DSU.78 Second, a large number of delegations made the point that the issue of non-state actor participation in an intergovernmental organization such as the WTO was a matter for the members to settle, not the dispute settlement system.79 As one delegation emphasized, [*PG253]the General Council, not the Appellate Body, has authority under Article V(2) of the WTO Agreement to “make arrangements for consultation and cooperation with non-governmental organizations concerned with matters related to those of the WTO.”80 As a result of the meeting, the Chair concluded that “the Appellate Body should exercise extreme caution in future cases until Members had considered what rules were needed.”81 The Appellate Body subsequently rejected all of the requests for leave to file amicus briefs “for failure to comply sufficiently with all the requirements” set out in the Appellate Body’s procedures.82

As noted above, amicus cases typically involve dispute settlement organs of an international organization, which themselves possess limited international sovereignty, trying to determine whether they have authority to open the door to the international plane to other non-state actors.83 In most cases, they find the tacit, and in a few cases explicit, authority to do so in their constitutive instruments. That these organs would exercise independent authority to assess their own powers is not unexpected. After all, the states that established these bodies consented to the bodies making legal rulings that would bind the states themselves. In doing so, however, states were not removing themselves from the equation entirely. State consent is not only an initial prerequisite to a dispute settlement body’s exercise of its authorities, but as the Asbestos controversy demonstrates, an ongoing requirement. States must remain confident in the dispute settlement system’s exercise of the authorities those states granted it for the system to have continued legitimacy.84

From the Appellate Body’s perspective, indeed from the perspective of the United States, opening the door to limited private actor participation in WTO dispute settlement through amicus briefs fell well within the Appellate Body’s power. And, if it had such a power, it [*PG254]would follow that it would have the power to lay down rules on how it should exercise that power. The hostile reaction of WTO member states to that last step of laying down rules, however, showed that such an interpretation of the Body’s procedural authorities went too far for most WTO members.

Although the WTO General Council recognized that the Appellate Body does have certain procedural powers in conducting proceedings, the prevailing view appears to be that laying down rules for NGO participation in the proceedings is not one of them.85 According to the WTO General Council, they, not the Appellate Body, would determine the relationship between the WTO and NGOs, and that in the meantime, the Appellate Body should exercise extreme caution.86 One cannot know definitively if this message motivated the Asbestos Appellate Body to reject all of the amicus briefs submitted to it, but it would not seem to be a far-fetched assumption. Moreover, as its subsequent practice already confirms, the Appellate Body will need to interpret its own procedural authorities in the future by taking into account the interpretations of such authorities by the members that granted them.87

This is not to suggest that the Asbestos controversy stands for the rejection of private party participation in the international legal order—far from it. Rather, it stands for the principle that states will continue to determine who may participate in that order. In some cases, states have delegated that determination to international organizations, either tacitly or explicitly, and the amicus practice of many international tribunals reflects part of the outcome of that delegation. At the same time, the Asbestos controversy demonstrates that there will be other situations where states (and other entities possessing interna[*PG255]tional sovereignty) reserve the right to make that determination on their own.88

Conclusion

When debating globalization, it is important to recognize that, although it may be fair to say that it has eroded sovereignty in the sense of absolute domestic jurisdiction vis-à-vis an earlier time, the international sovereignty of states remains fundamentally unchanged. The international legal personality of states is untrammeled. States not only continue to have the authority to create, implement, and enforce international law, they also have the authority to determine who else may participate in that process.

The debate over globalization may make the case that the international legal order needs to hear new voices, and it appears that existing actors in that order, not only international organizations but the states themselves, are seeking to accommodate the views of private actors like NGOs. One way they have done this is through the amicus curiae. Through this practice, international tribunals may listen to the views from NGOs and other private actors without giving them a formal role as parties in international proceedings. As the Asbestos controversy demonstrates, however, in listening to such new voices, international organizations and their tribunals should not, and indeed, cannot drown out the old voices that created them.

International law remains both the subject and master of states. It may be true that the international legal order will have to address questions regarding its legitimacy raised by NGOs and other private actors. At the same time, however, in addressing those concerns, in admitting or expanding roles for private actors in public international law, one cannot lose sight of the need to ensure that the system maintains its legitimacy with respect to its existing actors—states.

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