Public Interest Litigation in International Law (Routledge Research in International Law) [1 ed.] 1032560053, 9781032560052

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PUBLIC INTEREST LITIGATION IN INTERNATIONAL LAW

Edited by Justine Bendel and Yusra Suedi

Routledge Research in International Law Series

PUBLIC INTEREST LITIGATION IN INTERNATIONAL LAW Edited by Justine Bendel and Yusra Suedi

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ISBN 978-1-032-56030-4

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“A diverse range of voices on a concept far too often relegated to ‘mere’ politics, this innovative edited collection contributes important insights in the enduring debate of how to conceive the ‘public’ in public international law.” Gleider Hernández, Professor of Public International Law, Catholic University of Leuven

“The catastrophes of the 20th century including the many incidents of systematic violations of human rights, the quest for climate justice and the need to continually reaffirm the inalienable rights of peoples to self-determination have all contributed to renewed interest in community obligations. In this impressive and highly topical study, Dr Bendel and Dr Suedi, unpack the central importance of public interest litigation in international adjudication. The book is a fascinating catalyst for a much needed debate on an important subject.” Phoebe Okowa, Professor of Public International Law, Queen Mary University of London, Member, United Nations International Law Commission

Public Interest Litigation in International Law

In a world of growing public interest in global matters and criticisms of multilateralism to adequately address them, the role of international courts and tribunals in the resolution of disputes is shifting. A central aspect of this shift is whether and how international courts and tribunals can be used to resolve such disputes in the public interest. This practice, referred to as public interest litigation, is the object of this collection, which identifies some recent developments, trends and prospects in this growing practice. Its aim is to assess the degree to which the bilateral design of international courts and tribunals can adapt to the shift towards a public approach to international litigation. Engaging with various fields where public interest litigation exists – such as human rights, climate change, global health and criminal law – it identifies recent developments, trends and prospects in this practice. The selected pieces provide a flavour of the types of issues that have arisen before international judicial bodies – for instance, the International Court of Justice, the International Tribunal for the Law of the Sea, international arbitral tribunals, regional human rights bodies or criminal courts – and explores issues that may arise in the future. Justine Bendel is a Marie Skłodowska-Curie Fellow at the University of Copenhagen, Denmark. Her work focuses broadly on enforcement issues in international environmental and climate change law, with a particular emphasis on the impacts of international law on forests. Her monograph is entitled Litigating the Environment: Process and Procedure before International Courts and Tribunals (2023). Yusra Suedi is a Lecturer in International Law at the University of Manchester, UK. Prior to this, she was Fellow in Law at London School of Economics (LSE) Law School, UK. She holds a doctorate in Public International Law from the University of Geneva, Switzerland for her manuscript entitled The Individual in the Law and Practice of the International Court of Justice. She has worked for the United Nations Office in Geneva, the International Law Commission, the Institut Du Droit International, the International Labour Organization Administrative Tribunal and the International Court of Justice.

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Public Interest Litigation in International Law

Edited by Justine Bendel and Yusra Suedi

First published 2024 by Routledge 4 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 605 Third Avenue, New York, NY 10158 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2024 selection and editorial matter, Justine Bendel and Yusra Suedi; individual chapters, the contributors The right of Justine Bendel and Yusra Suedi to be identified as the authors of the editorial material, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library ISBN: 978-1-032-56005-2 (hbk) ISBN: 978-1-032-56030-4 (pbk) ISBN: 978-1-003-43346-0 (ebk) DOI: 10.4324/9781003433460 Typeset in Times New Roman by Deanta Global Publishing Services, Chennai, India

Contents

1

 List of Figures List of Tables List of Contributors

ix x xi

Introduction

1

JUSTINE BENDEL AND YUSRA SUEDI

PART I

The Meaning and Purpose of Public Interest Litigation

7

2

9

On the Pertinence of “Public Interest” for International Litigation MARION ESNAULT

3

Public Interest Litigation: A Pipe Dream or the Future of International Litigation?

34

YUSRA SUEDI AND JUSTINE BENDEL

PART II

Public Interest Litigation before the International Court of Justice 4

Third-Party Intervention before the International Court of Justice: A Tool for Litigation in the Public Interest?

73 75

CRAIG EGGETT AND SARAH THIN

5

Mapping the ‘Public’ in Public Interest Litigation: An Empirical Analysis of Participants before the International Court of Justice PAULA WOJCIKIEWICZ ALMEIDA AND MIRIAM COHEN

98

viii  Contents PART III

Procedural Developments in Public Interest Litigation 6

All that Glitters Is Not Monetary Gold: Indispensable Parties and Public Interest Litigation before International Tribunals

135 137

BRIAN MCGARRY AND NASIM ZARGARINEJAD

7

The Role of Advisory Opinions in Addressing Public Interest Issues

170

CARLOS A. CRUZ CARRILLO

PART IV

Public Interest Litigation and Non-State Actors 8

Third-Party Investigation in International Criminal Law: Public Interest Litigation in a Broader Sense?

201 203

KRISTINA HELLWIG

9

NGOs as Amicus in Investor-State Arbitration: Addressing Public Interest and Human Rights Issues

227

WASIQ DAR AND GAUTAM MOHANTY

PART V

Public Interest Litigation and Human Rights

251

10 Balancing Public Interest with Health-Related Rights: Current Dilemmas and Future Prospects

253

MARIA-LOUIZA DEFTOU

11 Reparations for Human Rights Violations: A Major Objective of Public Interest Litigation

274

DINAH SHELTON

PART VI

Public Interest Litigation and Climate Change

293

12 Ocean-Climate Litigation: Enforcing Public Interest Against All Odds 295 VONINTSOA RAFALY

13 Climate Cases as Public Interest Litigation before the European Court of Human Rights

317

CORINA HERI

Index 345

Figures

 5.1  Subject matter that prompted most manifestations of formal participation (notifications, requests and applications) in ICJ contentious cases 5.2  Legal bases of state and NSAs’ manifestations of formal participation (notifications, requests and applications) in contentious cases per type of actor 5.3  Legal basis for state applications for permission to intervene in ICJ contentious cases 5.4  IGOs more often notified by the court in contentious cases per ICJ legal bases, according to the outcome of the notifications 5.5  Number of ICJ notifications to expert individuals in contentious cases per ICJ legal basis, according to the outcome of the notifications

103 106 108 111 115

Tables

 7.1  Advisory jurisdiction across international judicial bodies 7.2  Participation in advisory proceedings through written submissions or amicus curiae 9.1  ICSID-concluded cases that involved NGOs as amici curiae (2000–2020)

178 181 240

Contributors

Justine Bendel is a Marie Skłodowska-Curie Fellow at the University of Copenhagen, Denmark. Her work focuses broadly on enforcement issues in international environmental and climate change law, with a particular emphasis on the impacts of international law on forests. Her monograph is entitled Litigating the Environment: Process and Procedure before International Courts and Tribunals (2023). Miriam Cohen is a Law Professor at Université de Montréal, Canada, and holds the Canada Research Chair in Human Rights and International Reparative Justice. Her research focuses on human rights and international justice. She is the author of the award-winning book Realizing Reparative Justice for International Crimes (Cambridge University Press, 2020). Carlos A. Cruz Carrillo is a PhD/SNSF Doc.CH Fellow at the University of Basel, Switzerland. He holds a Master in International Law from the Graduate Institute of Geneva and an LLB from the National Autonomous University of Mexico. He has legal experience in environmental and ocean affairs, climate change, human rights, cultural heritage and international dispute settlement. Wasiq Dar is an Associate Professor of Legal Practice at Jindal Global Law School, India. He is also the Assistant Director of the ADRS Faculty Board and the Center for Alternative Dispute Resolution (CADR) at Jindal Global Law School. He teaches courses on commercial arbitration, investor-state arbitration, and contract law to undergraduate and postgraduate students. The research areas that interest him include international commercial arbitration, international investment law and investment arbitration, commercial mediation, private international law and certain areas of public international law. Maria-Louiza Deftou is a Research Fellow at the Marangopoulos Foundation for Human Rights (MFHR), Greece. She is also a Postdoctoral Fellow at the Athens Public International Law Center (AthensPIL), School of Law of the National and Kapodistrian University of Athens. She has taught international law and human rights law at the same university and participated in several EU-funded research and teaching projects on these legal areas. Her first monograph, titled Exporting the European Convention on Human Rights, was published in 2022.

xii Contributors Craig Eggett is an Assistant Professor of International Law at Maastricht University, the Netherlands. He holds degrees from Durham University, UK and Maastricht University and defended his PhD at Maastricht in 2021. Craig’s research interests include the law and procedure of international courts and tribunals, law-making and international legal theory. Marion Esnault is currently a Teaching Assistant (ATER) and an international law PhD candidate (topic: Le participant aux procédures des juridictions internationales) at Université Paris Nanterre, France. Before obtaining a Master of International Relations and European Union Law at this university, she obtained an English and French Law (Maîtrise) LLB at the University of Essex, UK. Kristina Hellwig is a researcher and lecturer at the Department of Law at the School of Socio-Economics of the Faculty of Business, Economics and Social Sciences at the University of Hamburg, Germany. Her primary areas of research are public international law, international criminal law and human rights law. Her current research focuses on digital evidence in the context of international criminal procedure. Corina Heri is a postdoctoral researcher at the University of Zurich, Switzerland, where she researches human rights law, climate change and the role of courts. Her monograph, Responsive Human Rights: Vulnerability, Ill-Treatment and the ECtHR, was published by Hart Publishing in 2021. Brian McGarry is an Assistant Professor of Public International Law at Leiden University, the Netherlands, a Visiting Professor at Sciences Po Law School, Paris, and Vermont Law School, and a former Lecturer at the Graduate Institute (Geneva). His debut monograph is Intervening in International Justice: Third States before Courts and Tribunals (2023). Gautam Mohanty is currently an Assistant Professor of Law at Jindal Global Law School (JGLS), India. He is currently pursuing his doctoral studies (PhD) at Kozminski University, Warsaw, Poland, and is writing his thesis on the legitimacy crisis of investor-state dispute settlement vis-à-vis third-party funding. He pursued his BBA LLB from National Law University, Odisha, India. He earned his LLM from Central European University, Budapest, Hungary, on a partial scholarship. His research aims at addressing issues arising out of the intersectionality between arbitration and other laws such as contract law, foreign investment and commercial law. Vonintsoa Rafaly has a doctorate in European and International Studies from the University of Nantes, France. Her research and teaching interests span international law, ocean governance, environmental law and regime interactions. Her research focuses on the consideration of common interest in the evolution of ocean governance at the time of global changes. Dinah Shelton is the Manatt/Ahn Professor emeritus at the George Washington University Law School, DC. She served as a member of the Inter-American

Contributors  xiii Human Rights Commission (2010–2014) and in 2010 she was president of the Commission. Professor Shelton is the author of three prize-winning books, Protecting Human Rights in the Americas (co-authored with Thomas Buergenthal) (1995), Remedies in International Human Rights Law (3rd edition, 2015) and the three-volume Encyclopedia of Genocide and Crimes against Humanity (2004). She has also authored other articles and books on international law, human rights law and international environmental law. Professor Shelton is a member of the board of editors of the American Journal of International Law. She has served as a legal consultant to international organisations and is on the board of numerous human rights and environmental organisations. In 2006, Professor Shelton was awarded the Elisabeth Haub Prize for Environmental Law and in 2013 she received the Goler Butcher Prize in Human Rights; she was conferred the degree of doctor honoris causa at the University of Stockholm, Sweden in 2012 and the Pazmany Peter Catholic University of Budapest, Hungary in 2014. Yusra Suedi is Lecturer in International Law at the University of Manchester, UK. Prior to this, she was Fellow in Law at LSE Law School, UK. She holds a doctorate in Public International Law from the University of Geneva for her manuscript entitled The Individual in the Law and Practice of the International Court of Justice. She has worked for the United Nations Office at Geneva, the International Law Commission, the Institut Du Droit International, the International Labour Organization Administrative Tribunal and the International Court of Justice. Sarah Thin is an Assistant Professor at Radboud University, Nijmegen, the Netherlands. She holds degrees from Durham University and the University of Nottingham, UK, and she defended her PhD thesis at Maastricht University, the Netherlands in 2022. Her primary research interests lie in public international law, particularly state responsibility and the international community interest. Paula Wojcikiewicz Almeida is a Full Professor of International Law at the FGV Rio de Janeiro Law School, Brazil. She is the Director of the Jean Monnet Centre of Excellence EU-South America Global Governance at FGV and an Associate Researcher at the Institute of International and European Law at the Sorbonne. She holds a doctorate summa cum laude at the Université Paris 1 PanthéonSorbonne, France. Nasim Zargarinejad is a PhD student at the University of Geneva, Switzerland, and she holds an Advanced LLM in International Dispute Settlement and Arbitration. Nasim began her career working on various international high-profile cases. She then gained professional experience by working for a number of international courts.

1

Introduction Justine Bendel and Yusra Suedi

The international legal order is characterised by many traditional features. One traditional feature of international law is the “resilient bilateralism of relationships” between states.1 Yet, Bruno Simma famously identified a shift “from bilateral to community interests” in his 1994 Hague Academy lecture.2 The growth of multilateralism together with the formal recognition of erga omnes (partes) obligations in the International Law Commission (ILC)’s Draft Articles on State Responsibility, for example,3 solidify this vision that international law goes beyond bilateral interests.4 Such a shift is also reflected in the international judicial system. From its inception, international dispute settlement has supported the bilateral architecture of international law. In inter-state disputes, one state has traditionally taken another state to court to resolve a bilateral dispute that only affected those two states. In the human rights or investment law realm, one individual or investor has typically taken a single state to court. However, a growing number of international courts and tribunals have been faced with situations when states or individuals have brought either cases in the public interest through bilateral judicial channels5 or cases that involve multiple claimants or respondents.6 Although these types of cases are not new, their popularity has increased. 1 Andrea Gattini, ‘Actio Popularis’ (2019) Max Planck Encyclopedias of International Law para 4

accessed 14 February 2023. 2  Bruno Simma, ‘From Bilateralism to Community Interest in International Law’ (1994) 250 Collected Courses of the Hague Academy of International Law. 3  International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, November 2001, Supplement No. 10 (A/56/10), Articles 42 and 48. 4 Theodor Meron, The Humanisation of International Law (Martinus Nijhoff Publishers 2006) 247. 5  Most famously in the Barcelona Traction case and the South West Africa cases, to name but a few cases that ignited the debates in international legal scholarship. More recently, The Gambia brought a case against Myanmar, for crimes it has allegedly committed against the Rohingyas, without being directly and individually harmed by the behaviour of Myanmar. See Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Preliminary Objections, Judgment, I.C.J. Reports 2022. 6  Examples where a dispute is not only bilateral are the Duarte Agostinho and Others v. Portugal and 32 Other States before the European Court of Human Rights, or the 26 applications to intervene in the Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation) before the International Court of Justice. DOI:  10.4324/9781003433460-1

2  Justine Bendel and Yusra Suedi Against this background, this edited collection identifies some recent developments, trends and prospects in the growing practice of “public interest litigation”. It explores the strict confines and established procedures before international courts and tribunals and how these have been challenged when public interests are brought before them. In identifying such developments and trends, this edited collection ultimately seeks to answer the question: can international courts and tribunals adequately protect public interests? The feasibility of public interest litigation will depend on the international court or tribunal in question. This edited collection therefore explores recent practices before inter-state courts (such as the International Court of Justice and the International Tribunal for the Law of the Sea), international arbitral tribunals, regional human rights bodies and criminal tribunals. Indeed, there have been many disputes before international courts and tribunals explicitly involving an identifiable group or community concerned with the outcome of the decision or involved in the proceedings. This has been most evident in international criminal law and human rights law cases.7 But many other judicial bodies that do not ordinarily address human concerns have been faced with public interest disputes, such as the European Court of Justice8 or the International Centre for Settlement of Investment Disputes.9 There have been other disputes concerned with global public goods – common issues to all states and people – such as health or the environment. For instance, the World Trade Organization’s Dispute Settlement Mechanism has dealt with landmark judgments pertaining to peoples’ health10 and environmental concerns.11 The International Tribunal for the Law of the Sea has also dealt with similar matters.12 In this context, this collection offers  7  For instance, the International Criminal Court places great emphasis on victim protection in its work and directly engages with communities affected by crimes (International Criminal Court, ‘Interacting with Communities Affected by Crimes’ accessed 14 February 2023), while the Inter-American Court of Human Rights has been exemplary in advancing indigenous peoples’ rights (Yakye Axa Indigenous Community v. Paraguay, Merits, Reparations and Costs, Judgment, Inter-American Court of Human Rights, 17 June 2005; Case of the Saramaka People v. Suriname, Preliminary Objections, Merits, Reparations and Costs, Judgment, Inter-American Court of Human Rights, 28 November 2007; Case of the Kichwa Indigenous People of Sarayaku v. Ecuador, Merits and Reparations, Judgment, Inter-American Court of Human Rights, 27 June 2012).   8 Case C-415/93 Union Royale Belge des Sociétés de Football Association ASBL v. Bosman [1995] ECR I-04921.   9  Biwater Gauff (Tanzania) Ltd. v. United Republic of Tanzania (Award) ICSID Case No. ARB/05/22, 2008. 10 European Communities – Measures Concerning Meat and Meat Products (Hormones), Report of the Appellate Body, 13 February 1998, WT/DS26/AB/R, WT/DS48/AB/R; Brazil – Measures Affecting Imports of Retreaded Tyres, Report of the Appellate Body, 3 December 2007, WT/DS332/AB/R. 11 United States – Import prohibition of certain shrimp and shrimp products, Report of the Appellate Body, 6 November 1998, WT/DS58/AB/R; European Communities – Measures affecting asbestos and asbestos-containing products, Report of the Appellate Body, 5 April 2001, WT/DS135/AB/R. 12 Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan), Request for Provisional Measures, Order of 27 August 1999, International Tribunal for the Law of the Sea; and Mox Plant Case (Ireland v. United Kingdom), Provisional Measures, Order of 3 December 2001, International Tribunal for the Law of the Sea.

Introduction  3 a selective overview of contemporary developments in the case-law of a multitude of international courts and tribunals. The structure of the edited collection is as follows. Part I discusses the meaning and purpose of public interest litigation. At the domestic level, public interest litigation is well defined in different jurisdictions (such as class actions in the US). However, at the international level, the existence of public interest litigation is, in itself, contentious. This is why the collection starts with the exploration of what the notion of public interest litigation means in international law and how it can be defined. In international law, who exactly the public is and whether interests can be globally collective are less clear, and cases that involve the public interest are varied in nature, content and scope, making it difficult to identify what it concretely means. Moreover, the distinction between the interests of the public and the interests of a potential litigating state is occasionally blurred. The purpose of public interest in the international legal context is also a matter of debate – more specifically, whether the practice should be further developed and encouraged, and which international institutions are best suited to address them. Controversy surrounding the meaning and purpose of public interest explains the reticence towards this practice in international litigation. This is excellently captured in Marion Esnault’s chapter “On the Pertinence of ‘Public Interest’ for International Litigation”. Esnault questions the practical relevance of the concept and whether its consolidation into a stand-alone term in international law adds value. She also questions whether international courts and tribunals are the appropriate fora for public interest concerns. We also address these concerns in our chapter “Public Interest Litigation: A Pipe Dream or the Future of International Litigation?”, where we argue that there is a relatively clear idea of what public interest is in the context of international law. We then consider the challenges of such litigation before international judicial fora, thereby questioning whether they are indeed the appropriate forum due to procedural limitations and potential political repercussions. Having laid the conceptual foundations, a second set of chapters – in Parts II, III and IV – present an overview of procedural issues in relation to public interest litigation. Part II assesses the ability of the International Court of Justice (ICJ) to successfully handle specific challenges of public interest litigation, bearing in mind it was not designed for this purpose. The focus on this court is also justified by its centrality in the international legal order. The ICJ was initially designed to settle disputes arising between two states, with defined and attributable harms. However, there has been significant progress in this area. Attempts at public interest litigation in international law were made before the ICJ as early as 1966, when Ethiopia and Liberia each instituted proceedings against South Africa, claiming that the latter was practising apartheid against its people. The ICJ rejected such proceedings on the grounds that public interest litigation was inadmissible, but stated a few years later in Barcelona Traction, Light and Power Company, Limited that States have obligations towards the international community as a whole and have a legal interest in their protection. This sparked extensive doctrinal debate on whether such obligations could be enforced by international courts and tribunals. The Court confirmed

4  Justine Bendel and Yusra Suedi this to be the case in 2012 in Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), and in 2020 in The Gambia v. Myanmar, although many jurisdictional and procedural questions still remain unanswered. Beyond this, many other procedural avenues have been challenged in the pursuit of public interest litigation. Part II therefore explores how the Court’s current procedures can be creatively adapted to fit the needs of public interest litigation. Craig Eggett and Sarah Thin first tackle “Third-Party Intervention before the International Court of Justice: A Tool for Litigation in the Public Interest?”, where they closely examine the potential for third-party interventions on the basis of public interests. In doing so, they consider the scope of public or community interests as “interests of a legal nature” as required for interventions, and the implications of accepting such a right of intervention. This is a particularly timely analysis given the recent host of interventions under Article 63 in the common interest of preventing genocide in Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation). While it sheds light on how public interest litigation may look on the state level, the other chapter in Part II, by Paula Wojcikiewicz Almeida and Miriam Cohen, turns to nonstate actors. In “Mapping the ‘Public’ in Public Interest Litigation: An Empirical Analysis of Non-State Participants before the International Court of Justice”, they argue that a revision of the rules or practice directions would be useful to allow for greater participation and to contribute to the proper administration of international justice. Still focusing on procedural issues in public interest litigation, Part III assesses the adaptability of procedures cutting across international courts and tribunals. Certain procedural developments are especially important and relevant to public interest litigation and benefit from comparative study across the ITLOS, the WTO Dispute Settlement Mechanism and various regional human rights courts. In “All That Glitters Is Not Monetary Gold: Indispensable Parties and Public Interest Litigation before International Tribunals”, Brian McGarry and Nasim Zargarinejad tackle the “Monetary Gold principle”, which holds that the Court cannot rule on the rights, responsibilities or legal position of absent third states in a bilateral dispute if they constitute the “very subject matter” of the dispute. The authors carefully flesh out recent litigation practice with respect to this principle, which may create difficulties for public interest litigation. They carve out the ways that it has been respected or circumvented. In “The Role of Advisory Opinions in Addressing Public Interest Issues”, Carlos A. Cruz Carrillo then assesses the use of the advisory jurisdiction for public interest issues. He examines the utility and legal consequences of using the advisory function to tackle such issues. This is particularly timely, as both the ITLOS and the ICJ have been requested to render advisory opinions on public interest matters such as climate change in international law and the Israeli occupation of the Palestinian territories, respectively. Part IV focuses on a specific procedural aspect of key relevance in public interest litigation: the growing role of non-state actors in international judicial proceedings. Questions about who should be allowed to access international courts and who should benefit from such litigation must be answered in light of current legal and

Introduction  5 political contexts. Two very distinct areas of international litigation are examined – both critical for non-state actors such as NGOs. The international criminal context is examined by Kristina Hellwig in “Third-Party Investigation in International Criminal Law: Public Interest Litigation in a Broader Sense?”, where she characterises NGO participation in the enforcement of international criminal law as public interest litigation, discussing the challenges, limitations and prospects of such participation. Wasiq Dar and Gautam Mohanty then take us to investor-state arbitration in “NGOs as Amicus in Investor-State Arbitration: Addressing Public Interest and Human Rights Issues”, offering a comprehensive and up-to-date take on the role that NGOs have and can play in representing “public interests” and “human rights” issues before arbitral tribunals through recent case studies. Finally, Parts V and VI tackle the interaction between public interest litigation and specific substantive issues: human rights on the one hand, and climate change on the other hand. Many existing publications limit themselves to procedural discussions, which are critical to making public interest litigation a success. Substantial discussions are, however, also a necessary component. Understanding the connection between procedure and substance is a key contribution to this collection. This section also indicates that this edited collection not only takes a snapshot of contemporary developments in public interest litigation in international law but takes a step further in anticipating what public interest litigation could look like in the future. For instance, it looks at health-related issues connected to public interest litigation, which are particularly relevant in the context of the current pandemic and the future of global health. It also focuses on climate change litigation, as such type of litigation is becoming more and more prevalent for future generations. Part V of this collection then focuses on issues pertaining to human rights and how public interest can influence and exist within human rights litigation. Indeed, the challenges posed by the notion of public interests in the human rights context are different from those in other parts of international law. Maria-Louiza Deftou, in “Balancing Public Interest with Health-Related Rights: Current Dilemmas and Future Prospects” provides a timely post-pandemic account of whether the healthbased public interest serves its mandate or whether it actually refers to the state’s narrow perception of how the protection of public health should be attained. A different area of human rights litigation is then addressed in “Reparations for Human Rights Violations: A Major Objective of Public Interest Litigation”, where Dinah Shelton reviews the law of remedies, including accountability for perpetrators of human rights abuses, and how these are enforced in public interest litigation. Finally, the growing importance of climate change litigation also affects public interest litigation, as the latter can become an effective means to solve the former. In this sense, the nature of the climate change problem offers a unique perspective on public interest litigation. Given the prevalence and urgency of the climate crisis, it is timely to engage specifically with this question. Part VI therefore does so with contributions addressing different areas of climate change litigation. Vonintsoa Rafaly first discusses ocean climate–related matters and the prospects of public litigation addressing climate change–related matters under the United Nations Convention on the Law of the Sea (UNCLOS) provisions, in “Ocean-Climate

6  Justine Bendel and Yusra Suedi Litigation: Enforcing Public Interest Against All Odds”. Corina Heri then explores “Climate Cases as Public Interest Litigation before the European Court of Human Rights”. Discussing recent practices, she argues that while the Court undoubtedly holds promise for public interest litigants in this context, certain procedural and political obstacles should not be overlooked. Overall, the selected pieces provide a flavour of the types of issues that have arisen before certain judicial bodies and may arise in the future. This edited collection is the fruit of a project enabled by the GenEx Joint Seed Funding 2021, awarded by the University of Geneva and the University of Exeter. A joint select committee from the two universities supported this project, allowing us to organise a workshop for all the participants to exchange and sharpen their ideas at the University of Exeter in November 2021, for which we are very grateful. We also wish to thank all the participants that made the workshop a success, including our discussants – Christian Tams, Phoebe Okowa, Brian McGarry, Kim Bouwer and Caroline Fournet – and our moderators – Ben Hudson and Tiago de Melo Cantaxo. Thanks to our assistants Federico Daniele and Anna Kokla, as well as Routledge and the anonymous reviewers. Special thanks go to Aurel Sari who supported this project from the beginning. Finally, we thank Makane Moïse Mbengue without whom this project would not have come to fruition.

Part I

The Meaning and Purpose of Public Interest Litigation



2

On the Pertinence of “Public Interest” for International Litigation Marion Esnault

2.1 Introduction: Overview of the Notion and the Problem Faced with a growing awareness of common challenges and threats,1 states have displayed notable efforts “to advance beyond the traditional processes concerned with protecting the formal equality between sovereigns”.2 Also confronted with the changing landscape of the international legal order, international courts and tribunals, “traditionally coping with bipartisan litigation”3 have been expected to accommodate disputes of broader – substantial and participatory – scope. For some, these evolutions are proof of an emerging form of public interest litigation in international law. However, to consider this potential evolution, one must first try to understand its exact meaning. And, despite its growing importance in the international legal lexicon, no definition of an international ‘public interest’ – nor of its litigation – has yet been determined.4 Furthermore, although originally a domestic law concept, an analysis of ‘public interest litigation’ in its traditional context only revealed a blatant lack of uniformity of understanding from one state to the next,5

1 Robert Kolb, Réflexions de philosophie du droit international (Bruylant, 2003), 29. 2  Martti Koskenniemi and Päivi Leino, ‘Fragmentation of International Law? Postmodern Anxieties’ (2002) 15 (3) Leiden Journal of International Law 553, 578. 3  John Farrar, ‘Book Review – Public Interest Parties and the Active Role of the Judge in Civil Litigation by M. Cappelletti and J. A. Jolowicz’ (1976) 25 (3) International and Comparative Law Quarterly 708, 709. 4 Jost Delbrück, ‘“Laws in the Public Interest” – Some Observations on the Foundations and Identification of Erga Omnes Norms in International Law’ in Volkmar Götz et al. (eds), Liber Amicorum Günther Jaenicke-zum 85. Geburtstag (Springer 1999) 33–34. 5  E.g., Vera Langer, ‘Public Interest in Civil Law, Socialist Law, and Common Law Systems: The Role of the Public Prosecutor’ (1988) 36 (2) American Journal of Comparative Law 279; Conseil d’Etat, Réflexions sur l’intérêt général (Rapport public 1999, 30 Novembre 1998); Ashok Desai et al., ‘Public Interest Litigation: Potential and Problems’ in Bhupinder Nath Kirpal et al. (eds), Supreme but Not Infallible – Essays in Honour of the Supreme Court of India (Oxford University Press 2000) 159; Andrea Durbach et al., ‘Public Interest Litigation: Making the Case in Australia’ (2013) 38 (4) Alternative Law Journal 219; Emeka Polycarp Amechi, ‘Strengthening Environmental Public Interest Litigation through Citizen Suits in Nigeria: Learning from the South African Environmental Jurisprudential Development’ (2015) 23 (3) African Journal of International and Comparative Law 383; DOI:  10.4324/9781003433460-3

10  Marion Esnault thus highlighting the impossibility of a generally accepted definition. Similarly, a comprehensive approach of international instruments, case-law and studies offered only a variety of meanings which will be subsequently mentioned. Nevertheless, this wide comparative perspective allows us to grasp the multiple potentials of ‘public interest litigation’ and to reflect on their realistic adaptability to international litigation. Indeed, bearing in mind the diversity of meanings and functions given from one state, court, instrument or author to the next, is a ‘public interest notion transposable to international litigation? If it is, would it be useful? What would be its added value compared to existing – more grounded and adapted to their context – legal principles? As such, the ‘pertinence’ of this expression for international litigation ought to be questioned. Indeed, literally, the ‘pertinence’ of a notion is its direct relation or its importance for the subject matter concerned.6 Moreover, this first broad overview enables us to note the regular presence of various features in relation to a ‘public interest’ and to question their absence. The few references to the notion in international adjudicative instruments appear illustrative in this regard. Before the European Court of Human Rights (ECtHR), its Practice Directions specify: the “Contracting Party [i]s responsible for the public interest”.7 As underlined by the court, “because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is ‘in the public interest’”.8 Similarly, although on a larger scale, the Inter-American Commission is to be the “guarantor of the public interest under the American Convention” (ACHR) according to the Rules of Procedure of the Inter-American Court on Human Rights (IACtHR).9 As such, before both courts, an entity (state or regional organisation) is entrusted with the identification and protection of an abstract but curtailed ‘public interest’. Interpreted according to the needs and ideology of a certain (domestic or regional) legal order, its meaning is necessarily limited, both territorially and subjectively. The interested public is composed of the nationals of one state, party to the European Convention on Human Rights (ECHR), or of all the states (and their nationals) party to the ACHR. In this, the existence of a predetermined set of values or aims of a limited scope of application appears necessarily coupled with a designated authority in charge of their interpretation. Differently, the Free Trade Commission’s Statement on Non-Disputing Parties (NAFTA FTC Statement) recommends that arbitrators consider, in accepting or refusing non-disputing parties’ participation, whether “there is a public interest in

Kathryn McCallum, ‘Changing Landscapes: Enforcing Environmental Laws in China through Public Interest Litigation’ (2017) 20 Asia Pacific Journal of Environmental Law 57; Gilles Guglielmi (ed.), L’intérêt général dans les pays de common law et de droit écrit (Ed. Panthéon-Assas, 2017). 6  Cambridge Dictionary, Definition of ‘Pertinence’ accessed 18 October 2022. 7  European Court of Human Rights, Practice Directions, 3 June 2022, I(2). 8 Béláné Nagy v. Hungary App no. 53080/13 (ECHR, 13 December 2016) 113. 9 Inter-American Court of Human Rights, Rules of Procedure, 16–25 November 2000, Article 34(3).

On the Pertinence of “Public Interest”  11 the subject matter of the arbitration”.10 According to Annex 2(c) of the World Trade Organization’s Rules of Conduct for the Understanding on Rules and Procedures Governing the Settlement of Disputes (WTO DSU) a person called upon to serve in a dispute (e.g. on a panel or Appellate Body, or experts) has a duty to disclose, inter alia, an “active participation in public interest groups”. While concerned with two very different objects – the subject matter of a dispute and an organisation’s mandate – both allusions to the ‘public interest’ present similarities: detached from a particular territory or a predetermined set of values, they seem to allow for a decontextualisation of the notion whose interpretation will inevitably take place before an international judge. While these last examples seem to affirm international courts and tribunals as the appropriate fora for the interpretation and defence of an international public interest, the appropriateness of such a development on a larger scale still needs to be proven. For this analysis, the four common features of the ‘public interest’ previously noted are to be used as structuring elements. First, the notion seems dependent on a chosen context and cannot be invoked in the abstract. Indeed “because the term ‘public interest’ can have different meanings in different contexts, it is important to clarify the term within the particular context in which it is used”.11 Here the context is international litigation. Understood as a synonym of dispute – i.e., “a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons”12 – the term litigation implies focusing on the contentious jurisdiction of international courts. Further, to understand if an emerging form of ‘public interest’ in international litigation is not only appropriate but useful, the three other common features of the notion need to be considered: its systematic link to a specific set of values and an identified group of beneficiaries on the one hand (see section 2.2), and, on the other, a designated authority entrusted with its interpretation and defence (see section 2.3). 2.2 A Set Public and Interests (or Absence Thereof) One approach to the concept is to consider public interest litigation as “litigation that aims at protecting” a specific cause13 beforehand identified as embodying a ‘public interest’. However, the beneficiaries and the substantive international law potentially covered by the notion are still undefined (section 2.2.1), and thus its suitability and added value in an international litigation context can be debated (section 2.2.2).

10 North American Free Trade Agreement, Statement of the Free Trade Commission on non-disputing party participation, B(6)(d). 11 Dora Marta Gruner, ‘Accounting for the Public Interest in International Arbitration: The Need for Procedural and Structural Reform’ (2003) 41 (3) Columbia Journal of Transnational Law 923, 929. 12 Mavrommatis Palestine Concessions (Greece v. U.K.), 1924 P.C.I.J. (ser. B) No. 3 (Aug. 30). 13 Cao Mingde and Wang Fengyuan, ‘Environmental Public Interest Litigation in China’ (2011) 19 (2) Asia Pacific Law Review 219.

12  Marion Esnault 2.2.1  Indefinite Public and Interests

In the absence of a set definition, the substance (section 2.2.1.1) as well as the beneficiaries (section 2.2.1.2) of an eventual international ‘public interest’ still appear exceptionally vague. 2.2.1.1 Unlimited Interests

Objectively, an ‘interest’ in something stems from the benefits it might provide. These advantages can be material, as well as immaterial.14 In this sense, the international law applied for the benefit or advantage of a ‘public’ is to be considered as being in the public interest. In considering the substantial law covered by the notion, the instruments, fora and authors seem to follow two approaches. For some, the issue lies in identifying the fields of international law potentially covered by the notion. In this regard, however, although some domains are regularly mentioned, there appears to be no real consensus as to a definite enumeration. Indeed, a non-exhaustive inventory includes international rules relating to corruption,15 regulation of waste or chemicals,16 human rights,17 the environment,18 outer space,19 the high seas or those aimed at the “maintenance of the international financial legal order” or the restraint on the use of force.20 From this first description of an international ‘public interest’ law, three series of concerns necessarily arise. First, it seems all international law – understood as “an order for the promotion of peace”21 – could be included in the notion. Indeed, by its inherent purpose to govern the relations of various entities, international law aims to “settle their inevitable conflicts in a peaceful manner; that is, without the use of force, in conformity with an order valid for all”.22 Consequently, and secondly, one could consider this purpose redundant with the already existing role of international courts and tribunals. In “adhering to and strengthening the rule of

14 Inspired by the classification of the French Centre National de Ressources Textuelles et Lexicalles (CNRTL), ‘Intérêt’ accessed 18 October 2022. 15 E.g., Cecily Rose, ‘Enforcing the “Community Interest” in Combating Transnational Crimes: The Potential for Public Interest Litigation’ (2022) 69 Netherlands International Law Review 57. 16 Andreas Kulick, Global Public Interest in International Investment Law (Cambridge University Press 2012), xiii. 17 E.g., Aguas Argentinas, S.A., Suez, Sociedad General de Aguas de Barcelona, S.A. and Vivendi Universal, S.A. v. The Argentine Republic, ICSID Case No. ARB/03/19, Order in Response to a Petition for Transparency and Participation as Amicus Curiae, 19 May 2005, para 19. 18 E.g., Methanex Corporation v. United States of America, UNCITRAL-NAFTA, Decision of the Tribunal on Petitions from Third Persons to Intervene as ‘Amici Curiae’, 15 January 2001, para 49. 19 E.g., Ram Jakhu, ‘Legal Issues Relating to the Global Public Interest in Outer Space’ (2006) 32 (1) Journal of Space Law 31. 20  E.g., Teruo Komori, ‘Introduction’ in Teruo Komori and Karel Wellens (eds), Public Interest Rules of International Law – Towards Effective Implementation (Ashgate 2009) 1. 21 Hans Kelsen, Law and Peace in International Relations (Harvard University Press 1942) 1. 22  Ibid.

On the Pertinence of “Public Interest”  13 law at the international level”,23 the International Court of Justice, for example, as the principal judicial organ of the United Nations, has an essential role in fulfilling one of the organisation’s fundamental objectives: “maintaining international peace and security”.24 As it is, any peaceful settlement of a dispute hence seems to benefit more than just two parties. Third, in considering all rules related to an identified domain of the law as in the public interest, such an approach seems to lack precision. For example, far from all the provisions in a corruption treaty could be considered as transcending a bilateral sphere and protecting a public interest.25 More specifically in this latter regard, other scholars attach importance to the “specific normative status” of some norms.26 Because “they articulate the basic interests and needs as well as fundamental values of the international community as a whole”,27 jus cogens norms and, more generally, all norms with erga omnes or erga omnes partes effect are notably considered to be in the public interest. Again, however, several questions arise. On the one hand, although the existence of such norms is today “established and widely accepted […] there is still no general consensus with regard to [their] scope”.28 Looking at the list of norms having a jus cogens status for example, beyond the basics frequently cited29 and without any systematic demonstration in this regard, the “principle of equality before the law, equal protection before the law and non-discrimination”30 or the “standard of universal protection of the fundamental rights of the human person”31 have been included by courts. Thus, on the one hand, a risk already exists as to the “inclusion of a wide variety of arbitrarily selected norms on the jus cogens list and for potential abuse by courts, states and other actors claiming to serve the interests of the

23  H. E. Mr. Abdulqawi Yusuf, President of the International Court of Justice, ‘Speech: Upholding international law within the context of fostering close co-operation between the International Court of Justice and the Security Council’ (Security Council, 18 December 2020) accessed 18 October 2022. 24 Philippe Gautier, ‘Le succès croissant de la Cour internationale de Justice’ (Escale le magazine hebdomadaire: ONU info, 22 November 2019) accessed 18 October 2022. 25  Cecily Rose, ‘Enforcing the “Community Interest” in Combating Transnational Crimes: The Potential for Public Interest Litigation’ (2022) 69 Netherlands International Law Review 57, 82, 76. 26  Markus Benzing, ‘Community Interests in the Procedure of International Courts and Tribunals’ (2006) 5 (3) Law and Practice of International Courts and Tribunals 369, 371. 27  Jost Delbrück, ‘“Laws in the Public Interest” – Some Observations on the Foundations and Identification of Erga Omnes Norms in International Law’ in Volkmar Götz et al. (eds), Liber Amicorum Günther Jaenicke-zum 85. Geburtstag (Springer 1999) 18. 28 Jost Delbrück, ‘“Laws in the Public Interest” – Some Observations on the Foundations and Identification of Erga Omnes Norms in International Law’ in Volkmar Götz et al. (eds), Liber Amicorum Günther Jaenicke-zum 85. Geburtstag (Springer 1999) 18. 29 E.g., International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, With Commentaries (Yearbook of the International Law Commission II, 2001) Article 26 (5). 30  Juridical Condition and Rights of the Undocumented Migrants, Advisory Opinion OC-18/03, InterAmerican Court of Human Rights, 17 September 2003, para 101. 31 Case T-315/01 Kadi v. Council and Commission [2005] II-03649, para 235.

14  Marion Esnault international community”.32 On the other hand, if all international rules with erga omnes effect (jus cogens included) are of ‘public interest’, what might be the added value of such a qualification? Is adding an unset notion to already unset – but, contrarily to the “public interest”, broadly accepted – notions of any use? 2.2.1.2 An Indeterminate Public

Subjectively, an interest in something originates from the attention or concern it attracts.33 As such, international adjudicative instruments often identify different interests to be considered by a decision-maker (or a designated entity) before it takes a specific decision in a particular context. For example, the interests of justice34 or of the parties35 by the judge; the interest of national security or society by the state before limiting rights;36 the interest of developing countries before the WTO;37 or the interest of children in human rights conventions.38 In our context, this understanding could go two ways. First, it could require courts to consider ‘public’ interests – and not only those of the parties to the dispute – to reach their decision. However, it appears the ‘public’

32  Erika de Wet, ‘Jus Cogens and Obligations Erga Omnes’ in Dinah Shelton (ed), Oxford Handbook on Human Rights (Oxford University Press 2013) 547. 33  Inspired by the classification of the French Centre National de Ressources Textuelles et Lexicalles (CNRTL), ‘Intérêt’ accessed 18 October 2022. 34 E.g., UN General Assembly, The United Nations Rome Statute of the International Criminal Court, 17 July 1998, Article 53(1)(c) and 2(c); International Court of Justice, Practice Directions VII and VIII, 7 February 2002; Inter-American Specialized Conference on Human Rights, American Convention on Human Rights, 22 November 1969, Article 8(5); Council of Europe, European Convention on Human Rights, 4 November 1950, Article 36(2); European Court of Human Rights, Rules of Court, 3 October 2022, Rules 33, 34(3)(b), 39(1), 44(3)(a); Court of Justice of the European Union, Rules of Procedure of the Court of Justice, 29 September 2012, Article 45. 35  E.g., North American Free Trade Agreement, Articles 1117(3), 1126; World Trade Organization, Dispute Settlement Understanding (Annex 2 of the WTO Agreement), 15 April 1994, Article 10(1); European Court of Human Rights, Rules of Court, 3 October 2022, Rules 30, 39(1); Inter-American Specialized Conference on Human Rights, American Convention on Human Rights, 22 November 1969, Article 55(5); United Nations, Statute of the International Court of Justice, 18 April 1946, Article 31(5); International Court of Justice, Rules of Court, 14 April 1978, Article 36, 37; Court of Justice of the European Union, Statute of the Court of Justice of the European Union, Article 58. 36  E.g., Council of Europe, European Convention on Human Rights, 4 November 1950, Articles 6(1), 8(2), 9(2), 10(2), 11(2); Council of Europe, Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms, 16 September 1963, Article 2(3); Council of Europe, Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms, 22 November 1984, Article 1(2); Inter-American Specialized Conference on Human Rights, American Convention on Human Rights, 22 November 1969, Articles 15, 16(2), 21; UN General Assembly, The United Nations Rome Statute of the International Criminal Court, 17 July 1998, Article 72(2). 37  E.g., World Trade Organization, Dispute Settlement Understanding (Annex 2 of the WTO Agreement), 15 April 1994, Article 4(10), 21(2). 38 E.g., Inter-American Specialized Conference on Human Rights, American Convention on Human Rights, 22 November 1969, Article 17(4); Council of Europe, Protocol No. 5 to the Convention for the Protection of Human Rights and Fundamental Freedoms, 20 January 1966, Article 5.

On the Pertinence of “Public Interest”  15 considered can indifferently be a limited group or indefinite mass of individuals, some or all states or an undefined ‘international community’. For example, the tribunal in the Suez v. Argentina investment arbitration found that [t]he factor that gives this case particular public interest is that the investment dispute centres 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.39 In this case, limited to the inhabitants of a certain city, the ‘public interest’ can also stem from any consideration connected to the population of a given state40 or regional organisation,41 or to any issue extending “far beyond those raised by the usual transnational arbitration between commercial parties”.42 Even further, for some, ‘international public interest law’ aims at protecting “the interests of the global community including future generations”.43 To reach a decision in the ‘public interest’, courts are thus expected to acknowledge a variety of interests. Yet, this requirement only appears to draw attention to an already existing practice,44 hence questioning the need to address it as such. According to Article 11 of the WTO DSU, for example, “a panel should make an objective assessment of the matter before it, including an objective assessment of the facts of the case”. To do so, it has no obligation “to restrict itself solely to arguments presented by the parties to the dispute” and may “develop its own legal reasoning” supported by any chosen arguments.45 Second, this subjective approach of a ‘public interest’ could call for a recognition that international litigation attracts the curiosity or interest of a ‘public’. In this sense, the notion would relate

39 Aguas Argentinas, S.A., Suez, Sociedad General de Aguas de Barcelona, S.A. and Vivendi Universal, S.A. v. The Argentine Republic, ICSID Case No. ARB/03/19, Order in Response to a Petition for Transparency and Participation as Amicus Curiae, 19 May 2005, paras 19, 25. 40 E.g., Inter-American Specialized Conference on Human Rights, American Convention on Human Rights, 22 November 1969, Articles 21(2), 22, 30; Council of Europe, Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms, 20 March 1952, Article 1; Council of Europe, Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms, 16 September 1963, Article 2(2). 41 E.g., Inter-American Court of Human Rights, Rules of Procedure, 16–25 November 2000, Article 34(3). 42 Methanex Corporation v. United States of America, UNCITRAL-NAFTA, Decision of the Tribunal on Petitions from Third Persons to Intervene as ‘Amici Curiae’, 15 January 2001, para 49. 43 Teruo Komori, ‘Introduction’, in Teruo Komori and Karel Wellens (eds), Public Interest Rules of International Law – Towards Effective Implementation (Ashgate 2009) 1. 44 E.g., Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, at 25 para 30. 45 European Communities – Measures Concerning Meat and Meat Products (Hormones), WT/DS26/ AB/R, World Trade Organization Appellate Body, 16 January 1998, para 156.

16  Marion Esnault to matters which affect the public to such an extent that it may legitimately take an interest in them, which attract its attention or which concern it to a significant degree, especially in that they affect the well-being of citizens or the life of the community. This is also the case with regard to matters which are capable of giving rise to considerable controversy, which concern an important social issue, or which involve a problem that the public would have an interest in being informed about.46 In this regard however, it appears that, again, theoretically all international law cases could be considered as raising a public interest, “for they engage the state budget and concern the legality of the exercise of state authority”.47 Hence, “all those matters that extend beyond the mere parties to the dispute and affect an abstract local, national, or global constituency” would be concerned with no distinction.48 Moreover, it seems such an interest is already acknowledged in international litigation: most hearings49 are expected to unravel before external observers, and most tribunals have an obligation to publicise their judgments and other decisions.50 Consequently, not only the ‘public’ and the ‘interests’ potentially protected by an eventual public interest litigation appear undefined, but some of the desired consequences of the notion seem already achieved by existing means, hence questioning the public interest notion’s potential contribution to international litigation – even more so when one reflects on its adaptability to the structural requirements of international litigation.

46 Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland App no 931/13 (ECHR, 27 June 2017) para 171. 47 Astrid Wiik, Amicus Curiae before International Courts (Hart Publishing 2018) 53. 48 Ibid. 49 E.g., Inter-American Court of Human Rights, Rules of Procedure, 16–25 November 2000, Articles 15, 17, 24, 26, 41, 45, 69; Court of Justice of the European Union, Statute of the Court of Justice of the European Union, Article 31; Council of Europe, European Convention on Human Rights, 4 November 1950, Articles 6(1), 40(1); United Nations, Statute of the International Court of Justice, 18 April 1946, Articles 47, 66; UN General Assembly, The United Nations Rome Statute of the International Criminal Court, 17 July 1998, Articles 64(7), 68(2). Differently, see e.g., Inter-American Specialized Conference on Human Rights, American Convention on Human Rights, 22 November 1969, Article 12. 50  E.g., Inter-American Court of Human Rights, Rules of Procedure, 16–25 November 2000, Article 31; Council of Europe, European Convention on Human Rights, 4 November 1950, Article 40(2); European Court of Human Rights, Rules of Court, 3 October 2022, Rules 28(2)(d), 33, 47(4); International Court of Justice, Rules of Court, 14 April 1978, Article 4(2), 8(2), 9(5). Differently, Inter-American Specialized Conference on Human Rights, American Convention on Human Rights, 22 November 1969, Article 14(1); World Trade Organization, Dispute Settlement Understanding (Annex 2 of the WTO Agreement), 15 April 1994, Article 18(2).

On the Pertinence of “Public Interest”  17 2.2.2  Justiciability of Common – and Not Public – Interests

“International treaties are often filled with purposeful ambiguities” which never impede, as such, the initiation of adjudication.51 In these cases, the courts’ ability to resolve disputes based on indefinite terms, and their legitimacy in doing so, depends on various prerequisites. At first glance however, the reunion of such prerequisites for a hypothetical public interest litigation appears more problematic (section 2.2.2.1) than for existing, and prima facie more adapted, international law concepts (section 2.2.2.2). 2.2.2.1 On the Justiciability of Public Interest

Examining the “aptness of a question for judicial resolution”,52 the notion of what is ‘justiciable’ requires a reflection on both courts’ jurisdiction (can they adjudicate a given issue?) and their legitimacy in doing so (ought they adjudicate this given issue?).53 Firstly, “the legal powers of international courts, and the political influence that emanates therefrom on international relations, are determined by the courts’ jurisdictional provisions” as they dictate, inter alia, “who can access the courts [and] what issues may be litigated”.54 Before international courts and tribunals, applicants are required to have a specific legal capacity to initiate a dispute.55 For example, before the African Court on Human and Peoples’ Rights (ACHPR), only the following entities are entitled to submit cases: the Commission, a state Party and an African Intergovernmental Organization.56 Individuals’ and non-governmental organisations’ direct access is dependent on an additional state declaration.57 As such, the diversity of beneficiaries of an international public interest previously

51 Lon Fuller, ‘The Forms and Limits of Adjudication’ (1978) 92 (2) Harvard Law Review 353, 373. 52  Geoffrey Marshall, ‘Justiciability’ in Anthony Guest (ed), Oxford Essays in Jurisprudence (Oxford University Press 1961) 269. 53  Jeff King, ‘The Pervasiveness of Polycentricity’ (2008) Public Law 101, 10 accessed 19 October 2022; Aoife Nolan et al., ‘The Justiciability of Social and Economic Rights: An Updated Appraisal’ in Menno Kaminga (ed), Challenges in International Human Rights Law: Volume III (Routledge 2014) 96. 54 Yuval Shany, ‘Jurisdiction and Admissibility’ in Cesare Romano et al. (eds), The Oxford Handbook of International Adjudication (Oxford University Press 2014) 780–781. 55  Pieter Van Dijk, Judicial Review of Governmental Action and the Requirement of an Interest to Sue: A Comparative Study on the Requirement of an Interest to Sue in National and International Law (Sijthoff & Noordhoff 1980) 18. 56 African Union, Protocol to the African Charter on Human and People’s Rights on the Establishment of an African Court on Human and Peoples’ Rights, 10 June 1998, Article 5. 57  Out of the 32 member states to the Protocol, only eight states have accepted the competence of the Court according to the Protocol’s Article 34(6): African Court on Human and Peoples Rights, ‘Basic Information’ accessed 19 October 2022.

18  Marion Esnault described is hence excluded from the status of ‘parties’ to international litigation.58 Thus, the responsibility of representing and defending their interests rests in the hands of other entities, a fact which, in turn, raises different issues subsequently acknowledged. Looking at the ratione materiae jurisdiction of courts, the domains potentially covered by an international public interest overviewed earlier do not appear problematic. Indeed, considering the diversity of international tribunals and the general character of some substantial jurisdiction,59 there appear to be scarce fields of international law today which could not be adjudicated upon. It does not follow, however, that all disputes in these areas of international law are justiciable. As previous debates on social and economic rights outlined, because of their imprecision and the polycentric character of their disputes,60 some concepts – such as an international ‘public interest’ – appear “to be incapable of judicial enforcement”.61 Secondly, even if international courts and tribunals overcome this first jurisdictional obstacle, their legitimacy in adjudicating public interest issues must still be questioned. When a person institutes proceedings before a court, or consents to them, their expectations are straightforward: the judge is to resolve a delimited dispute opposing two identified entities.62 Yet, public interest litigation entails addressing issues beyond those delineated by the parties and allowing for the heightened participation of third parties. As such, in seeking to alter the “ordinary organization of adjudication”, these evolutions present the risk of deviating courts from their primary role.63 As Lon Fuller explains, the distinguishing characteristic of adjudication lies in the fact that it confers on the affected party a peculiar form of participation in the decision, that of presenting proofs and reasoned arguments for a decision in his favour. […] Whatever destroys the meaning of that participation destroys the integrity of adjudication itself.64 58 E.g., United Nations, Statute of the International Court of Justice, 18 April 1946, Article 34 (only states); UN General Assembly, The United Nations Rome Statute of the International Criminal Court, 17 July 1998, Article 25 (individuals and Prosecutor); Council of Europe, European Convention on Human Rights, 4 November 1950, Article 33 and 34 (state, person, nongovernmental organization or group of individuals); etc. 59 According to Article 36(1) of its Statute the jurisdiction of the ICJ, notably, “comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force”. 60  Diane Roman, ‘La justiciabilité des droits sociaux ou les enjeux de l’édification d’un État de droit social’ (2012) 1 Revue des droits de l’homme 8 accessed 19 October 2022. 61 Aoife Nolan et al., ‘The Justiciability of Social and Economic Rights: An Updated Appraisal’ in Menno Kaminga (ed), Challenges in International Human Rights Law: Volume III (Routledge 2014) 101. 62  E.g., Turkey – Restrictions on Imports of Textile and Clothing Products, Report of the Panel, WT/ DS34/R, World Trade Organization, 31 May 1999, para 9.54. 63  Lon Fuller, ‘The Forms and Limits of Adjudication’ (1978) 92 (2) Harvard Law Review 353, 364. 64 Ibid.

On the Pertinence of “Public Interest”  19 Consequently, not only may the adaptability of a ‘public interest’ to the fundamental prerequisites of international litigation be challenged, but the notion’s use as such also appears debatable, notably when compared to already existing international concepts. 2.2.2.2 On the Justiciability of Common Interests

In domestic law, in a given legal system, the public interest is either considered as “the sum of the interests of the several members who compose” a community,65 or the expression of a transcending common will, clearly distinguished from any aggregate of individual interests.66 Its interpretation and defence rest on the homogeneous character of the community in which it is developed and enforced67 – a community which, as any legal system, “does not consist only of a set of interests, but also expresses values and consecrates rights” for the benefit of all its members.68 As such, the public interest is never “ideologically neutral”69 and its possible transposition at an international level is far from certain. Indeed, on the one hand, it is clear there is a rising awareness that a growing number of international relations are characterised by collective concerns and interests70 that go beyond “a shared desire to avoid reciprocal destruction”.71 On the other hand, however, not only does the international legal order still seem to lack the necessary homogeneity for certain ‘values’ to “develop automatically and without anyone intending or directing their development”,72 but no sole entity appears both capable73 and legitimate74 to act in this objective. States remain the “enforcers of international law” and, as sovereigns, are only entitled to the “enforcement avenues” agreed upon, as equals.75

65  Jeremy Bentham, cited by Theodore Benditt, ‘The Public Interest’ (1973) 2 (3) Philosophy & Public Affairs 291, 291. 66  Conseil d’Etat, Réflexions sur l’intérêt général (Rapport public 1999, 30 Novembre 1998). 67  Lon Fuller, ‘The Forms and Limits of Adjudication’ (1978) 92 (2) Harvard Law Review 353, 378. 68 Giorgio Gaja, ‘The Protection of General Interests of the International Community’ (2011) 364 Collected Courses of the Hague Academy of International Law 250, 20. 69 Oleksandr Vodiannikov, ‘What Is the “Interest” in Public Interest Litigation? A Propos the Concept of Interest in Postmodern Public Law’, during The Potential of Public Interest Litigation in International Law Workshop, 11 November 2021, University of Exeter. 70  Bruno Simma, ‘From Bilateralism to Community Interest in International Law’ (1994) 250 Collected Courses of the Hague Academy of International Law 234. 71 Lon Fuller, ‘The Forms and Limits of Adjudication’ (1978) 92 (2) Harvard Law Review 353, 378. 72  Ibid. 73  Giorgio Gaja, ‘The Protection of General Interests of the International Community’ (2011) 364 Collected Courses of the Hague Academy of International Law 250, 26–33. 74 Jost Delbrück, ‘“Laws in the Public Interest” – Some Observations on the Foundations and Identification of Erga Omnes Norms in International Law’, in Volkmar Götz et al. (eds) Liber Amicorum Günther Jaenicke-zum 85. Geburtstag (Springer 1999) 32–35. 75  Jutta Brunnée, ‘Common Areas, Common Heritage, and Common Concern’ in Daniel Bodansky et al. (eds), The Oxford Handbook of International Environmental Law (Oxford University Press 2008) 551.

20  Marion Esnault On a definite object, for the protection of which a set of identified entities are jointly engaged,76 states may hence express “shared values”.77 For example, before the ECtHR, “any High Contracting Party may refer to the Court any alleged breach of the provisions of the Convention and the Protocols thereto by another High Contracting Party”.78 The interests thus considered are “common” because they are “collectively protected and guaranteed”,79 but not “public” because they are inherently limited by their focus on a certain subject matter in the context of an international agreement.80 Consequently, although these interests may also transcend the classic bilateral vision of international law,81 they remain limited to the boundaries of a certain conventional legal order. In such a delineated context, offering a set of prevailing values as reference, an international judge may contribute to the “further specification, coordination and, eventually, enforcement” of these common interests.82 To conclude, because of the vagueness and variability of both the interests and the public concerned on the one hand, and the existence of international concepts seemingly tending towards the same objectives on the other, the appropriateness of a ‘public interest’ concept for international litigation may be questioned. Moreover, when searching for an entity capable of alleviating the uncertainties of the notion by ensuring its effective interpretation and safeguard, similar doubts remain. 2.3 A Designated Guarantor (or Absence Thereof) For obvious reasons – as well as ratione personae jurisdiction requirements – an indefinite ‘public’ may not have access to a courtroom to interpret or defend its interests. A single entity – party (see section 2.3.1) or intervenor (section 2.3.2) – is hence to fulfil this role before a judge. Again, however, the issue of their

76  Santiago Villalpando, L’émergence de la communauté internationale dans la responsabilité des Etats (PUF 2005) 15. 77  Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports 2012, at 449 para 68; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Provisional Measures, Order of 23 January 2020, I.C.J. Reports 2020, at 17 para 41. 78 Council of Europe, European Convention on Human Rights, 4 November 1950, Article 33. 79 Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, Dissenting opinion of Judge ad hoc Sur, I.C.J. Reports 2012, at 616 para 37. 80 Jutta Brunnée, ‘Common Areas, Common Heritage, and Common Concern’ in Daniel Bodansky et al. (eds), The Oxford Handbook of International Environmental Law (Oxford University Press 2008) 564. 81 Bruno Simma, ‘From Bilateralism to Community Interest in International Law’ (1994) 250 Collected Courses of the Hague Academy of International Law 234. 82 Markus Benzing, ‘Community Interests in the Procedure of International Courts and Tribunals’ (2006) 5 (3) Law and Practice of International Courts and Tribunals 369, 372.

On the Pertinence of “Public Interest”  21 representativeness aside,83 the suitability and use of such a development in an international litigation context can be doubted. 2.3.1  Parties’ Limited Legal Interest

For some, public interest litigation may be defined as “litigation in which the plaintiff is not self-serving but acts for the public interest”.84 In international adjudication, however, as illustrated by the International Court of Justice’s practice, a public interest to see international law generally respected is not deemed sufficient to establish jus standi85 (section 2.3.1.1). Yet, common or collective interests are not totally excluded from international tribunals: they can justify an application for alleged violations of shared multilateral obligations (section 2.3.1.2). 2.3.1.1 The Inadequacy of Actio Popularis

In 1966, in the South West Africa case,86 the ICJ considered that, although such a mechanism existed in certain municipal systems of law, as international law stood at the time, it could not “allow the equivalent of an ‘actio popularis’, or right resident in any member of a community to take legal action in vindication of a public interest”.87 Although in 1970, the ICJ seemed to “put the basic framework in place for the law of standing in the public interest”,88 it subsequently interpreted the Barcelona Traction89 principle in line with its procedural requirements, limiting, as a result, its practical jurisdictional consequences. In its East Timor judgment, the court held that “the erga omnes character of a norm and the rule of consent to jurisdiction are two different things”.90 Indeed, as the court later explained, “the mere fact that rights and obligations erga omnes […] are at issue in a dispute cannot in itself constitute an exception to the principle

83 E.g., Oscar Schachter, ‘The Decline of the Nation-State and Its Implications for International Law’ (1998) 36 Columbia Journal of Transnational Law 7, 15–18; Kenneth Anderson and David Rieff, ‘“Global Civil Society”: A Sceptical View’ in Helmut Anheier et al. (eds), Global Civil Society (Sage Publications 2005). 84 Cao Mingde and Wang Fengyuan, ‘Environmental Public Interest Litigation in China’ (2011) 19 (2) Asia Pacific Law Review 219. 85 Brigitte Stern, ‘Et si on utilisait la notion de préjudice juridique? Retour sur une notion délaissée à l’occasion de la fin des travaux de la C.D.I. sur la responsabilité des États’ (2001) 47 Annuaire Français de Droit International 3, 17. 86 South West Africa, Second Phase, Judgment, I.C.J. Reports 1966. 87 South West Africa, Second Phase, Judgment, I.C.J. Reports 1966, at 47 para 88. 88 James Crawford, ‘Multilateral Rights and Obligations in International Law’ (2006) 319 Collected Courses of the Hague Academy of International Law 451. 89 Barcelona Traction, Light and Power Company, Limited, Judgment, I.C.J. Reports 1970, at 32, para 33. 90 East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, at 102 para 29.

22  Marion Esnault that its jurisdiction always depends on the consent of the parties”.91 In this regard, admitting a public interest standing presents several risks. First, it may increase “the unpredictability of litigation and ha[ve] an adverse effect upon the willingness of states to submit disputes to the court”.92 For example, challenging Portugal’s standing in the East Timor case, Australia highlighted the fact that [t]o allow states to proceed – assuming a locus standi – in the absence of a collective decision [or a special treaty] would lead to action of a highly subjective character, and such action might not always take the form of initiating proceedings before the International Court. Thus, the result would be practically chaotic and self-serving.93 Indeed, as mentioned earlier, the understanding of the notion varies greatly from one state to the next. Accordingly, in the absence of an internationally accepted definition, it is most likely that each state will unilaterally seek “to have its special interests appear as the natural interests of everybody”94 and, in fine, defend its own perception of ‘public interest’.95 Furthermore, a ‘public interest’ standing may justify the “distortion” of some legal principles or mechanisms. For example, opening the doors of tribunals as soon as a unilaterally set “public interest” is invoked might risk a political instrumental use of judicial proceedings diverting them from their main purpose: resolving a dispute between two parties. Consequently, although “obligations erga omnes do exist in the world of international law”,96 their actual invocation before a judge in defence of an international public interest entails the tribunal being competent to accept the claim.97 Therefore, the conclusion adopted in 1966 remains unaltered: general international law still appears inapt to develop an autonomous “notion of ‘public interest standing’ in

91 Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2006, at 52 para 125. 92 Bardo Fassbender, ‘Article 9’ in Andreas Zimmermann et al. (eds), The Statute of the International Court of Justice A Commentary (Oxford University Press 2006) 468. 93 East Timor (Portugal v. Australia), Counter-Memorial of the Government of Australia, 1 June 1992, at 119, para 263. 94 Martti Koskenniemi and Päivi Leino, ‘Fragmentation of International Law? Postmodern Anxieties’ (2002) 15 (3) Leiden Journal of International Law 553, 578. 95 Jost Delbrück, ‘“Laws in the Public Interest” – Some Observations on the Foundations and Identification of Erga Omnes Norms in International Law’ in Volkmar Götz et al. (ed), Liber Amicorum Günther Jaenicke-zum 85. Geburtstag (Springer 1999) 32; Giorgio Gaja, ‘The Protection of General Interests of the International Community’ (2011) 364 Collected Courses of the Hague Academy of International Law 250, 31–32. 96 Bruno Simma, ‘From Bilateralism to Community Interest in International Law’ (1994) 250 Collected Courses of the Hague Academy of International Law 234, 298. 97 Patrick Daillier et al., Droit international public (8th edn, Librairie générale de droit et de jurisprudence 2009) 896.

On the Pertinence of “Public Interest”  23 areas which appear to involve multilateral rights and obligations”.98 In the presence of a sufficient jurisdictional basis though, the court may give states standing for – as codified in Article 48(1)(a) of the ILC Draft Articles99 – “the protection of a collective interest of the group”. 2.3.1.2 A Common Interest to Sue

On 22 July 2022, the court issued its judgment on preliminary objections in the case regarding the Application of the Convention on the Prevention and Punishment of the Crime of Genocide. Although the case relates to different exactions perpetrated against the Rohingya group in Rakhine state, in Myanmar, and allegedly by the government of Myanmar, the application instituting the proceedings was filed by The Gambia. While the latter’s right of standing for doing so was heavily questioned by Myanmar, the court reiterated its position concerning erga omnes partes obligations, which may be cited in extenso: All the states parties to the Genocide Convention […] have a common interest to ensure the prevention, suppression and punishment of genocide […]. It follows that any state party to the Genocide Convention may invoke the responsibility of another state party […] with a view to determining the alleged failure to comply with its obligations erga omnes partes under the Convention and to bringing that failure to an end.100 Progressively developed throughout the years,101 the benefits of the court’s reasoning are twofold. First, it clearly establishes the court’s jurisdictional basis – in this case, Article 36, paragraph 1 of the Statue and Article IX of the Genocide Convention – herewith avoiding the difficulties raised by a public interest standing previously mentioned. This without impeding, however – and it is the second positive aspect – the expression of interests going beyond those of a single state. For example, in requesting the provisional measures, The Gambia stated that it sought the protection of two series of rights. Primarily, those “of all members of the Rohingya group who are in the territory of Myanmar, as members of a protected group under the Genocide Convention”.102 Secondly, “the erga omnes partes rights   98 James Crawford, ‘Multilateral Rights and Obligations in International Law’ (2006) 319 Collected Courses of the Hague Academy of International Law 422.   99 International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, November 2001, Supplement No. 10 (A/56/10). 100 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Preliminary Objections, Judgment, I.C.J. Reports 2022, at 36–37 paras 107, 112. 101 Reservations to the Convention of Genocide, Advisory Opinion, ICJ Reports 1951, at 21; Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports 2012, at 449 para 68. 102 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Application Instituting Proceedings and Request for Provisional Measures, 11 November 2019, at 64 para 126.

24  Marion Esnault [The Gambia] has under the Convention, which mirror the erga omnes obligations of the Convention with which it is entitled to seek compliance”. Thus, the “systemic functions” served by international judicial bodies – and not only the ICJ103 – acknowledge the broader ramifications of their decisions,104 while complying with the constraints of consented jurisdiction. As such, while individual states may be the guarantors of common interests, their action remains limited to a specific legal order. Hence, although “foundational values and interests common to humanity […] may well find their way into international law”,105 the capacity for a single state to represent and protect them before a court appears still impeded by the bilateral structures of international adjudication. Furthermore, such a conclusion seems to stand even when the aspiring public interest guarantor seeks to intervene as a third party in a dispute. 2.3.2  Third Parties’ Incidental Character

In the United States of America, ‘public interest law’ is “defined as efforts to provide legal representation to previously unrepresented groups and interests, such as the poor, environmentalists, consumers, and racial and ethnic minorities”.106 ‘Public interest litigation’ is hence recognised in the American legal system as primarily encompassing private not-for-profit organizations’ involvement in litigation.107 Following this domestic law example, the diversity of third parties participating in international proceedings as guarantors of an international public interest could be described as an emerging form of public interest litigation (section 2.3.2.1). Such an assertion must nevertheless be tempered with regard to the secondary, if not superfluous, character of these considerations in the international courts and tribunals’ decisions to accept, or refuse, third-party interventions (section 2.3.2.2).

103 E.g., European Communities – Regime for the Importation, Sale and Distribution of Bananas, WT/ DS27/AB/, World Trade Organization, Appellate Body, 9 September 1997, paras 132–138; Council of Europe, European Convention on Human Rights, 4 November 1950, Article 33. 104 Sean Murphy, ‘International Judicial Bodies for Resolving Disputes Between States’ in Cesare Romano et al. (eds), The Oxford Handbook of International Adjudication (Oxford University Press 2014) 194–202. 105 Jutta Brunnée, ‘Common Areas, Common Heritage, and Common Concern’ in Daniel Bodansky et al. (eds), The Oxford Handbook of International Environmental Law (Oxford University Press 2008) 556. 106 Vera Langer, ‘Public Interest in Civil Law, Socialist Law, and Common Law Systems: The Role of the Public Prosecutor’ (1988) 36 (2) American Journal of Comparative Law 279, 302. 107 Bryan Garner (ed.), Black’s Law Dictionary (9th edn, Thomson Reuters 2009) 1350.

On the Pertinence of “Public Interest”  25 2.3.2.1 Public Interest Third Parties

While their status and their procedural rights differ, states108 and international109 and private organisations all have access to international courts and tribunals as third parties. The latter category, referred to as amicus curiae participation, is the most often described as the “third party intervention serving a public interest”.110 Such allusions are often twofold and stem from external observers as well as the amici themselves. For some, the public interest conditions participation. An amicus will apply to participate because it represents111 or protects112 the public interest, or because there is a ‘public interest’ in the subject matter of the dispute it wishes to address.113 For example, when applying for leave to file a written submission in the Biwater Gauff arbitration, the Lawyers’ Environmental Action Team, one of the applicants, described itself as “the first and the premier public interest environmental law organization”.114 Differently, in line with one of the recommended criteria of the NAFTA FTC Statement,115 five non-governmental organisations asked the tribunal in the Suez v. Argentina case to grant them access to the proceedings, on the basis that the latter involved, inter alia, “matters of basic public interest”.116 For others, the ‘public interest’ is the ultimate objective of participation. Hence, in the aforementioned Suez v. Argentina arbitration, the tribunal held that [t]he acceptance of amicus 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

108 E.g., United Nations, Statute of the International Court of Justice, 18 April 1946, Article 62, 63; Council of Europe, European Convention on Human Rights, 4 November 1950, Article 36(1); North American Free Trade Agreement, Article 1128. 109 E.g., United Nations, Statute of the International Court of Justice, 18 April 1946, Article 34(2) (3); Council of Europe, European Convention on Human Rights, 4 November 1950, Article 32(3). 110 E.g., Yaël Ronen and Yael Naggan, ‘Third Parties’ in Cesare Romano et al. (eds), The Oxford Handbook of International Adjudication (Oxford University Press 2014) 821. 111 Eric De Brabandere, ‘NGOs and the “Public Interest”: The Legality and Rationale of Amicus Curiae Interventions in International Economic and Investment Disputes’ (2011) 12 (1) Chicago Journal of International Law 85, 103–106. 112 Katia Fach Gómez, ‘Rethinking the Role of Amicus Curiae in International Investment Arbitration: How to Draw the Line Favorably for the Public Interest’ (2012) 35 (2) Fordham International Law Journal 510, 543–544. 113 Dora Marta Gruner, ‘Accounting for the Public Interest in International Arbitration: The Need for Procedural and Structural Reform’ (2003) 41 (3) Columbia Journal of Transnational Law 923, 956. 114 Biwater Gauff (Tanzania) Ltd. v. United Republic of Tanzania, ICSID Case No. ARB/05/22, Petition for Amicus Curiae Status, 27 November 2006. 115 North American Free Trade Agreement, Statement of the Free Trade Commission on non-disputing party participation, B(6)(d). 116 Suez, Sociedad General de Aguas de Barcelona, S.A., and Vivendi Universal S.A. v. The Argentine Republic, ICSID Case No. ARB/03/19, Order in Response to a Petition by Five Non-Governmental Organizations for Permission to Make an Amicus Curiae Submission, 12 February 2007, para 1.

26  Marion Esnault strengthened by increased openness and increased knowledge as to how these processes function. […] Through the participation of appropriate representatives of civil society in appropriate cases, the public will gain increased understanding of ICSID processes.117 Despite these regular references to the public interest aspect of amici participation, in practice, their capacity to really address these considerations is largely impeded by their obligation to contribute to the settlement of the dispute. 2.3.2.2 A Participation Limited to Common Interests

Because of their incidental character,118 third-party proceedings are necessarily limited by the main proceedings’ facts and controversies. Hence, non-disputing party submissions before international investment tribunals, for example, can “only address matters within the scope of the dispute”.119 Similarly, the ICJ underlines that the intervenor’s claims “have to be linked to the subject of the main dispute”.120 Indeed, “an incidental proceeding cannot be one which transforms that case into a different case with different parties”.121 In this regard, one of the parties to the Turkey – Textile case before the WTO Panels stated that a third party could not be permitted to raise new issues, as otherwise the whole dispute settlement procedure would be subverted and disputes would become open-ended, which could not be the purpose of the dispute settlement mechanism.122 Accordingly, while third-party participation does exist in international adjudication, its scope remains limited to the specific needs of the dispute. Before the ICJ, for example, when a state does address collective interests,123 its intervention “is

117 Suez, Sociedad General de Aguas de Barcelona, S.A., and Vivendi Universal S.A. v. The Argentine Republic, ICSID Case No. ARB/03/19, Order in Response to a Petition for Transparency and Participation as Amicus Curiae, 19 May 2005, para 22. 118 E.g., Court of Justice of the European Union, Rules of Procedure of the Court of Justice, 29 September 2012, Article 129(2); International Court of Justice, Rules of Court, 14 April 1978, Subsection 4 ‘Intervention’ in Section D ‘Incidental proceedings’. 119 North American Free Trade Agreement, Statement of the Free Trade Commission on non-disputing party participation, 3(d); International Centre for Settlement of Investment Disputes, ICSID Convention Arbitration Rules, Rule 37(2)(b). 120 Territorial and Maritime Dispute (Nicaragua v. Colombia), Application for Permission to Intervene, Judgment, I.C.J. Reports 2011 at 436 para 47. 121 Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), Application to Intervene, Judgment, I.C.J. Reports 1990, at 134 para 98. 122 Turkey – Restrictions on Imports of Textile and Clothing Products, Report of the Panel, WT/ DS34/R, World Trade Organization, 31 May 1999, para 7.124. 123 Under Article 63 of the Statute, Article 62 intervention being limited to a specific interest which may be affected by the decision.

On the Pertinence of “Public Interest”  27 limited to submitting observations on the construction of the convention in question and does not allow the intervenor […] to deal with any other aspect of the case before the court”.124 And, as the court specifies, “such an intervention cannot affect the equality of the parties to the dispute”.125 On this basis, all states to a convention may equally act for the definition, realisation and protection of a predetermined and delimited set of “common goals and fundamental interests”.126 Although not reduced to the interpretation of a single convention and theoretically in a position to address ‘public interest’ issues, amici curiae are also constrained in their participation. The main relevant criterion in determining whether to admit them in pending proceedings is whether their arguments will assist the court or tribunal in the consideration of the questions at issue.127 As such, an amicus curiae’s disposition to address “the public interest or indirect interests in the proceedings” may act as a deterrent for its acceptance, especially when they “do not have particular expertise to contribute”.128 In practice, it appears those applications are either rejected129 or ignored,130 questioning amici’s actual effectiveness in expanding the judicial function of international courts and tribunals.131 Hence, in view of the notion’s in fine ancillary role in relation to the third-party practice or its unsuitability to the locus standi requirements of international adjudication, it appears no single entity – whether it be as party or third party – has the

124 Whaling in the Antarctic (Australia v. Japan), Declaration of Intervention of New Zealand, Order of 6 February 2013, I.C.J. Reports 2013, at 9, para 18. 125 Ibid. 126 Ronald Macdonald cited in Bruno Simma, ‘From Bilateralism to Community Interest in International Law’ (1994) 250 Collected Courses of the Hague Academy of International Law 234, 238. E.g., Government of the Netherlands, ‘Joint Diplomatic Statement of Canada and the Kingdom of the Netherlands regarding intention to intervene in The  Gambia v. Myanmar case’ (International Court of Justice, 2 September 2020) accessed 19 October 2022. 127 E.g., The Prosecutor v. Laurent Gbagbo, Decision on the ‘Urgent Request to Leave to Submit Amicus Curiae observations pursuant to Rule 103 of the Rules of Procedure and Evidence’, ICC02/11-01/11-402, Pre-Trial Chamber I, International Criminal Court, 14 February 2013, para 4; The Prosecutor v. Radoslav Brdjanin (2005), Decision on Association of Defence Counsel Request to Participate in Oral Argument, IT-99-36-A, Appeals Chamber, International Criminal Tribunal for the former Yugoslavia; Piero Foresti, Laura de Carli and others v. Republic of South Africa, ICSID Case No. ARB(AF)/07/1, Letter Regarding Non-Disputing Parties, 5 October 2009; Council of Europe, European Convention on Human Rights, 4 November 1950, Article 36. 128 Sarah Williams et al., The Amicus Curiae in International Criminal Justice (Hart Publishing 2020) 208. 129 Ibid. 130 Astrid Wiik, Amicus Curiae before International Courts and Tribunals (Hart Publishing 2018) 520. 131 Ibid., 521. E.g., United States – Final Countervailing Duty Determination with respect to Certain Softwood Lumber from Canada, Report of the Appellate Body, WT/DS257/AB/R, World Trade Organization, 19 January 2004, para 9.

28  Marion Esnault capacity to effectively protect an international public interest before international courts and tribunals. 2.4 Conclusion: International Judge as Public Interest Guarantor? To conclude, either indefinite, redundant or inappropriate to the jurisdictional requirement of international courts and tribunals, the pertinence of a ‘public interest’ notion for international litigation seems questionable. Firstly, it appears any assessment of the potential of public interest litigation may be impeded “because of the difficulty in defining ‘the public interest’”132 at an international level. Indeed, highly dependent on the context in which it is used,133 its meaning varies from one state, tribunal and academic teaching to the next. Its definition, institutionalisation and safeguard are apparently reliant on a single authority in a defined legal order, and its applicability without and beyond these identified limits may be doubted. For some, this absence of both definition and designated interpretative entity is beneficial: it allows for a flexible notion, adaptable to diverse practical needs and to the evolving structures of international law.134 However, the limits and the risks of using such a concept must be weighed against such prima facie benefits. Regarding the necessity of entrusting a single entity with the interpretation and protection of an international public interest, different solutions exist, although ultimately unpersuasive. The definition of the ‘public interest’ could be entrusted to a party or third party to a dispute. For doing so, however, assuming they are able and willing to effectively represent an international ‘public interest’, these entities are to overcome the impediments inherent to international adjudication. Differently – and in this, public interest litigation could have potential – international courts and tribunals could be considered as the guarantors of an international public interest. Again, however, is this really their role? And, further, do they have the capacity for such a task? In this regard, one must not forget the anxieties relating to the multiplication of international judicial instances and its potential fragmentary consequences on international law.135 Although their expanding role in the coherence of the international order should not be underestimated, international courts or tribunals remain

132 Peter E. Sitkin and J. Anthony Kline, ‘Financing Public Interest Litigation’ (1971) 13 (4) Arizona Law Review 823, 825. 133 Dora Marta Gruner, ‘Accounting for the Public Interest in International Arbitration: The Need for Procedural and Structural Reform’ (2003) 41 (3) Columbia Journal of Transnational Law 923, 929. 134 François Ost, ‘Introduction’ in Philippe Gérard et al. (eds), Droit et intérêt, volume 2 – Entre droit et non-droit: l’intérêt (Facultés universitaires Saint-Louis 1990) 12. 135 E.g., Gilbert Guillaume, ‘L’unité du droit international public est-elle aujourd’hui en danger?’ (2003) 55 (1) Revue internationale de droit comparé 23; Rosalyn Higgins, ‘The ICJ, the ECJ, and the Integrity of International Law’ (2003) 52 (1) International and Comparative Law Quarterly 1; David Anderson, ‘The “Disordered Medley” of International Tribunals and the Coherence of International Law’ in Kaiyan Homi et al. (eds), International Law and Power: Perspectives on Legal Order and Justice – Essays in Honour of Colin Warbrick (Brill/Nijhoff 2009).

On the Pertinence of “Public Interest”  29 “self-contained” systems136 created and seized for one purpose only: to resolve a dispute between two parties. As such, rather than the emergence of another international notion, the in-depth exploration and appropriate structuration of existing legal concepts may be preferable, in phase with the progressive but measured development of international law and its litigation. Bibliography Cases African Union, Protocol to the African Charter on Human and People’s Rights on the Establishment of an African Court on Human and Peoples' Rights, 10 June 1998. Aguas Argentinas, S.A., Suez, Sociedad General de Aguas de Barcelona, S.A. and Vivendi Universal, S.A. v. The Argentine Republic, ICSID Case No. ARB/03/19, Order in Response to a Petition for Transparency and Participation as Amicus Curiae, 19 May 2005. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Preliminary Objections, Judgment, I.C.J. Reports 2022. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Application Instituting Proceedings and Request for Provisional Measures, 11 November 2019. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Provisional Measures, Order of 23 January 2020, I.C.J. Reports 2020. Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2006. Barcelona Traction, Light and Power Company, Limited, Judgment, I.C.J. Reports 1970. Béláné Nagy v. Hungary App no. 53080/13 (ECHR, 13 December 2016). Biwater Gauff (Tanzania) Ltd. v. United Republic of Tanzania, ICSID Case No. ARB/05/22, Petition for Amicus Curiae Status, 27 November 2006. Case T-315/01 Kadi v. Council and Commission [2005] II-03649. Conseil d’Etat, Réflexions sur l’intérêt général (Rapport public 1999, 30 Novembre 1998). Council of Europe, European Convention on Human Rights, 4 November 1950. Council of Europe, Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms, 20 March 1952. Council of Europe, Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms, 16 September 1963. Council of Europe, Protocol No. 5 to the Convention for the Protection of Human Rights and Fundamental Freedoms, 20 January 1966. Council of Europe, Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms, 22 November 1984. Court of Justice of the European Union, Statute of the Court of Justice of the European Union.

136 Tullio Treves, ‘Conflicts between the International Tribunal for the Law of the Sea and the International Court of Justice’ (1999) 31 (4) NYU Journal of International Law and Politics 809.

30  Marion Esnault East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995. European Communities – Measures Concerning Meat and Meat Products (Hormones), WT/ DS26/AB/R, World Trade Organization Appellate Body, 16 January 1998. European Communities – Regime for the Importation, Sale and Distribution of Bananas, WT/DS27/AB/, World Trade Organization, Appellate Body, 9 September 1997. European Court of Human Rights, Practice Directions, 3 June 2022. Inter-American Court of Human Rights, Rules of Procedure, 16–25 November 2000. Inter-American Specialized Conference on Human Rights, American Convention on Human Rights, 22 November 1969. International Centre for Settlement of Investment Disputes, ICSID Convention Arbitration Rules, ICSID/15/Rev. 3, July 2022. International Court of Justice, Practice Directions VII and VIII, 7 February 2002. International Court of Justice, Rules of Court, 14 April 1978. International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, With Commentaries (Yearbook of the International Law Commission II, 2001). Juridical Condition and Rights of the Undocumented Migrants, Advisory Opinion OC-18/03, Inter-American Court of Human Rights, 17 September 2003. Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), Application to Intervene, Judgment, I.C.J. Reports 1990. Mavrommatis Palestine Concessions (Greece v. U.K.), 1924 P.C.I.J. (ser. B) No. 3 (Aug. 30). Methanex Corporation v. United States of America, UNCITRAL-NAFTA, Decision of the Tribunal on Petitions from Third Persons to Intervene as ‘Amici Curiae’, 15 January 2001. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986. North American Free Trade Agreement, Statement of the Free Trade Commission on nondisputing party participation. Piero Foresti, Laura de Carli and others v. Republic of South Africa, ICSID Case No. ARB(AF)/07/1, Letter Regarding Non-Disputing Parties, 5 October 2009. Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports 2012. Reservations to the Convention of Genocide, Advisory Opinion, I.C.J. Reports 1951. Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland App no 931/13 (ECHR, 27 June 2017). South West Africa, Second Phase, Judgment, I.C.J. Reports 1966. Suez, Sociedad General de Aguas de Barcelona, S.A., and Vivendi Universal S.A. v. The Argentine Republic, ICSID Case No. ARB/03/19, Order in Response to a Petition by Five Non-Governmental Organizations for Permission to Make an Amicus Curiae Submission, 12 February 2007. Suez, Sociedad General de Aguas de Barcelona, S.A., and Vivendi Universal S.A. v. The Argentine Republic, ICSID Case No. ARB/03/19, Order in Response to a Petition for Transparency and Participation as Amicus Curiae, 19 May 2005. Territorial and Maritime Dispute (Nicaragua v. Colombia), Application for Permission to Intervene, Judgment, I.C.J. Reports 2011. The Prosecutor v. Laurent Gbagbo, Decision on the ‘Urgent Request to Leave to Submit Amicus Curiae observations pursuant to Rule 103 of the Rules of Procedure and Evidence’, ICC-02/11-01/11-402, Pre-Trial Chamber I, International Criminal Court, 14 February 2013.

On the Pertinence of “Public Interest”  31 The Prosecutor v. Radoslav Brdjanin (2005), Decision on Association of Defence Counsel Request to Participate in Oral Argument, IT-99-36-A, Appeals Chamber, International Criminal Tribunal for the former Yugoslavia. Turkey – Restrictions on Imports of Textile and Clothing Products, Report of the Panel, WT/ DS34/R, World Trade Organization, 31 May 1999. UN General Assembly, The United Nations Rome Statute of the International Criminal Court, 17 July 1998. United States – Final Countervailing Duty Determination with respect to Certain Softwood Lumber from Canada, Report of the Appellate Body, WT/DS257/AB/R, World Trade Organization, 19 January 2004. Whaling in the Antarctic (Australia v. Japan), Declaration of Intervention of New Zealand, Order of 6 February 2013, I.C.J. Reports 2013. World Trade Organization, Dispute Settlement Understanding (Annex 2 of the WTO Agreement), 15 April 1994.

Books and Articles Amechi E, ‘Strengthening Environmental Public Interest Litigation Through Citizen Suits in Nigeria: Learning from the South African Environmental Jurisprudential Development’ (2015) 23 (3) African Journal of International and Comparative Law 383. Anheier H et al. (eds), Global Civil Society (Sage Publications 2005). Benditt T, ‘The Public Interest’ (1973) 2 (3) Philosophy & Public Affairs 291. Benzing M, ‘Community Interests in the Procedure of International Courts and Tribunals’ (2006) 5 (3) Law and Practice of International Courts and Tribunals 369. Benzing M, ‘Community Interests in the Procedure of International Courts and Tribunals’ (2006) 5 (3) Law and Practice of International Courts and Tribunals 369, 372. Bodansky D et al. (eds), The Oxford Handbook of International Environmental Law (OUP 2008). Crawford J, ‘Multilateral Rights and Obligations in International Law’ (2006) 319 Collected Courses of the Hague Academy of International Law 451. Daillier P et al., Droit International Public (8th edn, Librairie générale de droit et de jurisprudence 2009). De Brabandere E, ‘NGOs and the ‘Public Interest’: The Legality and Rationale of Amicus Curiae Interventions in International Economic and Investment Disputes’ (2011) 12 (1) Chicago Journal of International Law 85. Durbach A et al., ‘Public Interest Litigation: Making the Case in Australia’ (2013) 38 (4) Alternative Law Journal 219. Fach Gómez K, ‘Rethinking the Role of Amicus Curiae in International Investment Arbitration: How to Draw the Line Favorably for the Public Interest’ (2012) 35 (2) Fordham International Law Journal 510. Farrar J, ‘Book Review – Public Interest Parties and the Active Role of the Judge in Civil Litigation by M. Cappelletti and J. A. Jolowicz’ (1976) 25 (3) International and Comparative Law Quarterly 708. Fuller L, ‘The Forms and Limits of Adjudication’ (1978) 92 (2) Harvard Law Review 353. Gaja G, ‘The Protection of General Interests of the International Community’ (2011) 364 Collected Courses of the Hague Academy of International Law 250. Garner B (ed), Black’s Law Dictionary (9th edn, Thomson Reuters 2009) 1350.

32  Marion Esnault Gautier P, ‘Le succès croissant de la Cour internationale de Justice’ (Escale le magazine hebdomadaire: ONU info, 22 November 2019) accessed 18 October 2022. Gérard P et al. (eds), Droit et intérêt, volume 2 – Entre droit et non-droit : L’intérêt (Facultés universitaires Saint-Louis 1990). Götz V et al. (ed), Liber Amicorum Günther Jaenicke-zum 85. Geburtstag (Springer 1999). Gruner D M, ‘Accounting for the Public Interest in International Arbitration: The Need for Procedural and Structural Reform’ (2003) 41 (3) Columbia Journal of Transnational Law 923. Guest A (ed), Oxford Essays in Jurisprudence (OUP 1961). Guglielmi G (ed.), L’intérêt général dans les pays de common law et de droit écrit (Ed. Panthéon-Assas, 2017). Guillaume G, ‘L’unité du droit international public est-elle aujourd’hui en danger?’ (2003) 55 (1) Revue internationale de droit comparé 23. Higgins R, ‘The ICJ, the ECJ, and the Integrity of International Law’ (2003) 52 (1) International and Comparative Law Quarterly 1. Homi K et al. (eds), International Law and Power: Perspectives on Legal Order and Justice – Essays in Honour of Colin Warbrick (Brill/Nijhoff 2009). Jakhu R, ‘Legal Issues Relating to the Global Public Interest in Outer Space’ (2006) 32 (1) Journal of Space Law 31. Kaminga M (ed), Challenges in International Human Rights Law: Volume III (Routledge 2014). Kelsen H, Law and Peace in International Relations (Harvard University Press 1942). King J, ‘The Pervasiveness of Polycentricity’ (2008) 101 Public Law 10 accessed 19 October 2022. Kirpal B N et al. (ed), Supreme But Not Infaillible – Essays in Honour of the Supreme Court of India (OUP 2000) 159. Kolb F, Réflexions de philosophie du droit international (Bruylant, 2003). Komori T, Wellens K (eds), Public Interest Rules of International Law – Towards Effective Implementation (Ashgate 2009). Koskenniemi M, Leino P, ‘Fragmentation of International Law? Postmodern Anxieties’ (2002) 15(3) Leiden Journal of International Law 553. Langer V, ‘Public Interest in Civil Law, Socialist Law, and Common Law Systems: The Role of the Public Prosecutor’ (1988) 36 (2) American Journal of Comparative Law 279. McCallum K, ‘Changing Landscapes: Enforcing Environmental Laws in China through Public Interest Litigation’ (2017) 20 Asia Pacific Journal of Environmental Law 57. Mingde C, Fengyuan W, ‘Environmental Public Interest Litigation in China’ (2011) 19 (2) Asia Pacific Law Review 219. Roman D, ‘La justiciabilité des droits sociaux ou les enjeux de l’édification d’un État de droit social’ (2012) 1 Revue des droits de l’homme 8 accessed 19 October 2022. Romano C et al. (eds), The Oxford Handbook of International Adjudication (OUP 2014). Rose C, ‘Enforcing the “Community Interest” in Combating Transnational Crimes: The Potential for Public Interest Litigation’ (2022) 69 Netherlands International Law Review 57. Schachter O, ‘The Decline of the Nation-State and Its Implications for International Law’ (1998) 36 Columbia Journal of Transnational Law 7. Shelton D (ed), Oxford Handbook on Human Rights (OUP 2013).

On the Pertinence of “Public Interest”  33 Simma B, ‘From Bilateralism to Community Interest in International Law’ (1994) 250 Collected Courses of the Hague Academy of International Law 234. Sitkin P, Kline J, ‘Financing Public Interest Litigation’ (1971) 13 (4) Arizona Law Review 823. Stern B, ‘Et si on utilisait la notion de préjudice juridique ? Retour sur une notion délaissée à l’occasion de la fin des travaux de la C.D.I. sur la responsabilité des États’ (2001) 47 Annuaire Français de Droit International 3. Treves T, ‘Conflicts Between the International Tribunal for the Law of the Sea and the International Court of Justice’ (1999) 31 (4) NYU Journal of International Law and Politics 809. Van Dijk P, Judicial Review of Governmental Action and the Requirement of an Interest to Sue: A Comparative Study on the Requirement of an Interest to Sue in National and International Law (Sijthoff & Noordhoff 1980). Villalpando V, L’émergence de la communauté internationale dans la responsabilité des Etats (PUF 2005). Wiik A, Amicus Curiae Before International Courts (Hart Publishing 2018). Williams S et al., The Amicus Curiae in International Criminal Justice (Hart Publishing 2020). Yusuf A, ‘President of the International Court of Justice’ Speech: Upholding International Law Within the Context of Fostering Close Co-operation Between the International Court of Justice and the Security Council (Security Council, 18 December 2020) accessed 18 October 2022. Zimmermann A et al. (eds), The Statute of the International Court of Justice A Commentary (OUP 2006).

3

Public Interest Litigation A Pipe Dream or the Future of International Litigation? Yusra Suedi and Justine Bendell

3.1 Introduction: Towards International Public Interest Litigation?1 Public interests are increasingly undergoing risk, threat or strain. Grave human rights violations and environmental degradation persist across the globe. Scholars, practitioners and the wider public are turning to the international legal infrastructure to accommodate some of the greatest concerns of our time. International courts and tribunals are therefore steadily being seized in the public interest to decide on issues such as genocide or climate change. However, the shift towards public interest litigation has been met with resistance. Indeed, certain scholars have cast doubt not only on the ability but the desirability of international courts and tribunals to protect public interests.2 Public interest litigation is an expanding, yet still fairly rare practice across international courts and tribunals. Reasons for this scarce use, as Tams wrote, can be “jurisdictional limitations, the controversial nature of the concept, and hesitation due to the political nature of this type of litigation”.3 In other words, there are three main reasons for resistance towards public interest litigation. First, there are conceptual reservations related to the very idea of public interest, such as the existence of collective interests and the identification of the public (see section 3.2). Second, there are political reasons to resist public interest litigation – namely, the difficulties that come with their strategic objectives and international courts’ legitimacy to 1 We would like to thank Sarah Thin for her invaluable comments on an earlier version of this chapter. All mistakes and omissions are the sole responsibility of the authors. 2  Marion Esnault, Chapter 2 of this collection; Andrea Gattini, ‘Actio Popularis’ (2019) Max Planck Encyclopedias of International Law accessed 16 January 2023; Krystyna Marek, ‘Criminalising State Responsibility’ in René Provost (ed), State Responsibility in International Law (Routledge 2002) 481; Bruno Simma, ‘Bilateralism and Community Interest in the Law of State Responsibility’, in Yoram Dinstein et al. (eds), International Law at the Time of Perplexity, Essays in Honour of Shabtai Rosenne (Martinus Nijhoff Publishers 1989) 838 (“But let us be realistic: the idea that a significant part of United Nations Member States would be prepared to involve the court in the issues listed in Article 19 is simply utopian”); Prosper Weil, ‘Towards Relative Normativity in International Law?’ (1983) 77 (3) American Journal of International Law 413, 433. 3  Christian Tams, ‘Individual States as Guardians of Community Interests’ in Ulrich Fastenrath et al., From Bilateralism to Community Interests: Essays in Honour of Bruno Simma (Oxford University Press 2011) 387. DOI:  10.4324/9781003433460-4

Public Interest Litigation  35 resolve such disputes (section 3.3). Finally, there are procedural reservations: it is often argued that international courts and tribunals were not procedurally designed to accommodate public interest litigation. It is therefore questionable whether procedural mechanisms may be suitably adapted to respond to public interest litigation disputes (section 3.4). The objective of this chapter is to give an overview of these obstacles for public interest litigation to be a fully integrated practice in international law. We argue that they are surmountable and welcome public interest litigation as an increasing practice to respond to a multitude of global concerns in the international legal order. While public interest litigation can take a variety of forms depending on the judicial forum and substantive matter, this chapter also presents the cross-cutting commonalities. 3.2 Conceptual Reservations: Understanding Public Interests in International Law There are reservations as to the conceptual existence of public interest litigation, as the terms are not clearly defined. In the second chapter of this collection, Esnault analyses both the indefinite characteristics of the notion of public interest and the indeterminate meaning of the “public”, thereby questioning the added value of the existence of public interest litigation. This section will address such concerns and proposes a theoretical framework that enables a better understanding of public interests in international law, and therefore their litigation. First, we discuss how it is possible for an aggregate of individuals or states to share interests due to their common values and how they take shape in international law. Second, we attempt to categorise who exactly are the subjects of public interests and discuss how different configurations of a collective may aspire to preserve certain rights through the enforcement of certain rules (reflecting collective values) (section 3.2.2). Third, we address the many iterations of public interests in international law, and how the co-existence of many terms that point to a similar concept may muddy the waters when it comes to its judicial enforcement (section 3.2.3). 3.2.1  The Nature of Public Interests

The term “interest” can be defined as “the relation of being objectively concerned in something, by having a right or title to, a claim upon, or a share in”.4 The relational nature of this definition connects it to two aspects: the public harbouring such an interest on the one hand, and the object which they feel they have a right or title to, a claim upon or a share in on the other hand. Interests become public “if

4 Oxford English Dictionary, ‘Interest’ accessed 19 January 2023.

36  Yusra Suedi and Justine Bendel and when a broader group of (potential) individuals draws benefit from it”.5 This definition assumes that an aggregate of persons can indeed have shared interests, i.e. be objectively concerned in the same matter by having a right or title to, a claim upon or a share in the same matter. The very idea might seem ambitious – especially if we consider that interests may be “multiple and conflicting even within a single individual”.6 McHarg critiques that “identifying group goals is necessarily more complicated than identifying individual ones”.7 There is, of course, criticism about the validity of collective interests. Held has also argued that “the circumstances in which everyone agrees about where their interests lie are so limited as to render the public interest practically redundant”.8 McHarg also argues that there is no practicable mechanism for determining what the interest of a preponderance of individuals would be.9 While this might be true, the existence of common values may bring us closer to understanding what public interests are. 3.2.1.1 Common Values as the Basis of Public Interests

On what grounds can a large indeterminate “public” share interests? How can this definition of public interest be transposed into international law? We posit that it is possible for collectives on the international scene to share interests if we assume that those interests are anchored in common values. One scholar observes that values are “motivated by an urgent sense of what is lacking, a sense that the state of the world could – and should be – better than it is now”.10 However, it has been noted that interests can be “traded against each other, with fulfilment of some interests being sacrificed to the satisfaction of others”.11 This argument reflects a common objection by critical legal theorists and TWAIL (Third World Approaches to International Law) scholars that the values sought to be preserved are not necessarily shared but rather dictated by dominant states. Rajagopal, for example, has argued that the human rights discourse in international   5 Alexander J. Bělohlávek, ‘Public Policy and Public Interest in International Law and EU Law’ in Alexander J. Bělohlávek and Naděžda Rozehnalova (eds), Czech Yearbook of International Law (Juris Publishing 2012) 126 accessed 16 January 2023.   6 J.A.W. Gunn, ‘Jeremy Bentham and the Public Interest’ (1968) 1 (4) Canadian Journal of Political Science 398, 412.   7 Aileen McHarg, ‘Reconciling Human Rights and the Public Interest: Conceptual Problems and Doctrinal Uncertainty in the Jurisprudence of the European Court of Human Rights’ (1999) 62 (5) The Modern Law Review 671, 678.   8 Virginia Held, The Public Interest and Individual Interests (New York: Basic Books 1970) 156.   9 Aileen McHarg, ‘Reconciling Human Rights and the Public Interest: Conceptual Problems and Doctrinal Uncertainty in the Jurisprudence of the European Court of Human Rights’ (1999) 62 (5) The Modern Law Review 671. 10 Otto Spijkers, ‘Global Values in the United Nations Charter’ (2012) 59 (3) Netherlands International Law Review 361, 365. 11 Aileen McHarg, ‘Reconciling Human Rights and the Public Interest: Conceptual Problems and Doctrinal Uncertainty in the Jurisprudence of the European Court of Human Rights’ (1999) 62 (5) The Modern Law Review 671.

Public Interest Litigation  37 law and politics “has generally treated the Third World as an object, as a domain or terrain of deployment of its universal imperatives”, as opposed to a value that unifies different states.12 In more general terms, Spijkers wrote that while there might be many fundamental disagreements when it comes to the identification of global values, […] there are nonetheless certain beliefs that all human beings subscribe to. These beliefs do not overlap simply by chance. They overlap because all human beings have something in common. The realisation of these common beliefs is in everyone’s interest.13 We posit that the values prescribed in today’s international legal order are not necessarily shared by every single actor, but there is a common denominator of ideals aspired towards by a collective. As Simma observed, “there is a worldwide social consciousness at work today that ‘communalises’ and ‘publicises’ international relations far beyond traditional rituals of governmental interaction”.14 In sum, the recognition of common values in international law has unlocked the possibility to have public interests in international law. In other words, public interests are valuedriven and aspirational in their nature – interests which “promot[e] […] collective welfare”.15 What interests may the public have in international law? It can be submitted that the public has an interest in protecting public goods16 or global public goods. Global public goods have been characterised in literature by two features: nonrivalry (they may be used without diminishing their availability to others) and non-excludability (no one can be excluded from using them).17 Such goods are “available to everyone, whether they contributed to producing it or not”.18 While public goods are within domestic confines,19 global public goods are understood

12 Balakrishan Rajagopal, International Law from Below: Development, Social Movements, and Third World Resistance (Cambridge University Press 2003) 171. 13 Otto Spijkers, ‘Global Values in the United Nations Charter’ (2012) 59 (3) Netherlands International Law Review 361, 365. 14 Bruno Simma, ‘From Bilateralism to Community Interest in International Law’ (1994) 250 Collected Courses of the Hague Academy of International Law 234. 15 Aileen McHarg, ‘Reconciling Human Rights and the Public Interest: Conceptual Problems and Doctrinal Uncertainty in the Jurisprudence of the European Court of Human Rights’ (1999) 62 (5) The Modern Law Review 671, 677. 16 Teruo Komori and Karel Wellens (eds), Public Interest Rules of International Law: Towards Effective Implementation (Routledge 2009) 1. 17 Daniel Bodansky, ‘What’s in a Concept? Global Public Goods, International Law, and Legitimacy’ (2012) 23 (3) European Journal of International Law 651, 652. 18 Ibid. 19 We acknowledge that there are stricter economic definitions of public goods, but we are using the concept in a rather abstract way. For an overview of the notion of public goods, see Julian Reiss, ‘Public Goods’ (Stanford Encyclopedia of Philosophy, 2021) accessed 18 January 2023.

38  Yusra Suedi and Justine Bendel to be of benefit to the world – not only countries, but humanity at large as beneficiaries20 – and are therefore more relevant to international law. They are “marked by universality” in benefiting “all countries, people and generations”.21 Kaul, Grunberg and Stern give the example of peace: “When it exists, all citizens of a country can enjoy it; and its enjoyment by, say, rural populations does not distract from its benefits for urban populations”.22 As early as 1948, Philip Jessup argued that the “philosophy underlying the Charter of the UN clearly embraces the notion of the community interest in matters affecting international peace”.23 Morgera also showed how the environment can be seen as a global public good, as it “require[s] global common action, that give[s] rise to a legitimate interest of the whole international community and to a common responsibility to assist in their protection”.24 The choice of global public goods is indicative of common values shared by all. 3.2.1.2 Existing Rules That Translate Those Common Values

We have established that international law can have public interests that are founded in common values and that often public interests in international law are to protect global public goods. According to Bodansky, a means to do so is by “promot[ing] norms favourable to [their] provision”.25 Indeed, the public interests to protect global public goods, underpinned by common values, are reflected in certain rules in the international legal order. The law already has a public quality to it. Jeremy Waldron has described rules as “issued in the name of the public […] that ordinary people can in some sense appropriate as their own”.26 Additionally, in order for a public interest to take on a specifically legal character and generate legal rights and obligations, the International Court of Justice (ICJ, the Court) has stated that “it must be given juridical expression and be clothed in legal form”.27 Public interest has therefore been described as “attain[ing] determinateness only when is juxtaposed with a specific legal rule – i.e. in particular, the purpose or objective of that specific

20 Inge Kaul, Isabelle Grunberg and Marc Stern, ‘Defining Global Public Goods’ in Inge Kaul, Isabelle Grunberg and Marc Stern (eds), Global Public Goods: International Cooperation in the 21st Century (Oxford University Press 1999) 11. 21 Ibid. 22 Ibid. 23 Philip Jessup, A Modern Law of Nations: An Introduction (Macmillan 1948) 11. 24 Elisa Morgera, ‘Bilateralism at the Service of Community Interests? Non-Judicial Enforcement of Global Public Goods in the Context of Global Environmental Law’ (2012) 23 (3) European Journal of International Law 743,749. 25 Daniel Bodansky, ‘What’s in a Concept? Global Public Goods, International Law, and Legitimacy’ (2012) 23 (3) European Journal of International Law 651, 652. See also Scott Barrett, Why Cooperate? The Incentive to Supply Global Public Goods (Oxford University Press 2007). 26 Jeremy Waldron, ‘Can There Be a Democratic Jurisprudence?’ (2009) 58 Emory Law Journal 675, 684. 27 South West Africa, Second Phase, Judgment, I.C.J. Reports 1966, at 6, paras 50–51.

Public Interest Litigation  39 rule”.28 In this section, we present three overlapping sets of rules in international law that reflect public interests and that the public seeks to enforce through litigation: international human rights norms, jus cogens norms and norms conferring erga omnes (partes) obligations. The first set of rules stems from international human rights law, mainly found in international and regional human rights conventions. Human rights law has been a field of international law actively and effectively developing public interest litigation,29 partly because potential victims can invoke human rights directly before domestic and regional courts and partly because public interest litigation forms a legal basis for a claim before a court.30 It also offers remedies following a judicial decision, as Shelton’s chapter explains. As Deftou shows in her chapter, the relationship between the concept of public interest and the concept of human rights can be easily convoluted.31 Although many specific international human rights carry individual interests, the adoption of international human rights law is for the benefit of the public as a whole. Even in cases where certain human rights are conceived as individual rights, there has been a recent push to reframe them to accommodate the larger public in litigation.32 Therefore, many developments concerning public interest litigation have taken place within the human rights field. The second set of rules is those conferring obligations erga omnes and obligations erga omnes partes. Obligations erga omnes partes are duties under a multilateral treaty that a state party owes to all the other states parties to the same treaty, due to their common values and concern for the treaty’s compliance. Erga omnes obligations, on the other hand, are found in customary international law and owed to the international community as a whole.33 The ILC Draft Articles give legal effect to these two types of obligations in Articles 42 and 48 as they allow injured and non-injured states to invoke another state’s responsibility in case of breach of both obligations erga omnes and erga omnes partes.34 Prior to the consolidation 28 Alexander J. Bělohlávek, ‘Public Policy and Public Interest in International Law and EU Law’ in Alexander J. Bělohlávek and Naděžda Rozehnalova (eds), Czech Yearbook of International Law (Juris Publishing 2012) 121. 29 Wilfred Jenks, ‘The General Welfare as a Legal Interest’, in Gabriel Wilner (eds), Jus et Societas, Essays in Tribute to Wolfgang Friedman (Martinus Nijhoff Publishers 1979) 155. 30 Otto Spijkers, ‘Pursuing Climate Justice through Public Interest Litigation: The Urgenda Case’ (Völkerrechtsblog, 29 April 2020) accessed 16 January 2023. “In reaching this conclusion [in Urgenda], the Court did also refer to international environmental law – the United Nations Framework Convention on Climate Change and the Paris Agreement were referred to numerous times – but not as legal basis of the claim. The obligation of the state of the Netherlands to do its part to combat global climate change was based on Articles 2 and 8 ECHR”. 31 Maria-Louiza Deftou, Chapter 10 in this collection. 32 See Chapter 13 by Corina Heri in this collection. 33 Institut de Droit International, Resolution on Obligations erga omnes in International Law (Krakow Session, 2005) Article 1, available at accessed 19 January 2023. 34 International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, Yearbook of the International Law Commission, 2001, vol. II (Part Two), accessed 25 January 2023.

40  Yusra Suedi and Justine Bendel of these obligations by the ILC, the ICJ had already confirmed their existence in Barcelona Traction.35 Such rules can substantively be found in international human rights law, but not all human rights confer erga omnes or erga omnes partes obligations, as the Court indicated in Barcelona Traction.36 In this judgment, the Court stated that such obligations are conferred “in view of the importance of the rights involved”.37 Further, the Court noted that such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination. This statement makes it clear that certain human rights norms have an erga omnes (partes) character.38 Other rules beyond human rights law may also confer such obligations, such as rules that pertain to the protection of the environment, the non-proliferation of nuclear weapons or humanitarian obligations, to name a few.39 However, the multilateral nature of a treaty does not necessarily render all obligations contained in it erga omnes (partes) by default.40 The third set of rules is jus cogens norms (or peremptory norms of international law), from which no derogation is permitted. They are reflected in Article 53 of the Vienna Convention on the Law of Treaties (VCLT), which states that any treaty conflicting with a jus cogens norm is void. Similarly to erga omnes (partes) obligations, not all international human rights norms are jus cogens norms, nor do all jus cogens norms derive from international human rights law.41 The heightened nature of jus cogens norms makes them more likely to be public interest norms. This tour d’horizon shows that international law contains a multitude of norms protecting public interests. Two important distinctions must be drawn between the first category and the latter two. First, while human rights norms are substantive

35 Barcelona Traction, Light and Power Company, Limited, Judgment, I.C.J. Reports 1970, paras 33–34. 36 Ibid., para 91: “With regard more particularly to human rights, to which reference has already been made in paragraph 34 of this Judgment, it should be noted that these also include protection against denial of justice. However, on the universal level, the instruments which embody human rights do not confer on States the capacity to protect the victims of infringements of such rights irrespective of their nationality”. 37 Ibid., para 33. 38 Theodor Meron, The Humanisation of International Law (Martinus Nijhoff Publishers 2006) 256 ff. 39 Joost Pauwelyn, ‘A Typology of Multilateral Treaty Obligations: Are WTO Obligations Bilateral or Collective in Nature?’ (2003) 14 (5) European Journal of International Law 907, 908 and 923. 40 Justine Bendel, Litigating the Environment: Process and Procedure before International Courts and Tribunals (Edward Elgar Publishing 2023) Chapter 3. 41 For a reflection on the relationship between jus cogens and human rights, see: Andrea Bianchi, ‘Human Rights and the Magic of Jus Cogens’ (2008) 19 (3) European Journal of International Law 491 accessed 18 January 2023.

Public Interest Litigation  41 rules, jus cogens and erga omnes (partes) obligations are qualifiers that apply to all kinds of substantive rules in and beyond the human rights realm. Second, the latter two sets of rules “represent the most commonly accepted ‘doctrinal expressions’ of community interest” and “the heightened protection of fundamental [public] interests” in international law.42 In this sense, the binding force of jus cogens norms and erga omnes obligations “does not derive from the consent of each and every state, but from the common values of the international community”.43 3.2.2  Beneficiaries of Public Interest Rules

In section 3.2.1, we established the conceptual framework of public interests: they are underpinned by common values, aspire to protect global public goods and are reflected in certain rules aimed at protecting them. Another conceptual controversy surrounding public interests concerns not their nature, but the beneficiaries: “the public” benefitting from the protection of public interest rules. In this section, we turn to the analysis of who exactly “the public” is. In general terms, a “public” can be described as a “loosely defined, but basically identifiable circle of persons”.44 There is a general understanding that this term refers to an aggregate of individuals. Kingsbury describes them as being “otherwise for the most part strangers to one another but stand[ing] connected in a relationship of mutuality vis-à-vis something external to them”.45 This external matter is of public – as opposed to private – concern, and therefore “regarded as an appropriate subject of attention by the political institutions of the society”.46 The term “public” therefore pertains not only to the people but to the nature of the concern that connects them. In this sense, the public forms a political community as per Locke.47 In both the Hobbesian and Kantian perspectives, the motive of this relationship is not to affirm their solidarity but rather to prevent conflict and dispute.48

42 Sarah Thin, ‘Community Interest and the International Public Legal Order’ (2021) 68 Netherlands International Law Review 35, 45 43 Xiao Mao, ‘Public-Interest Litigation before the International Court of Justice: Comment on The Gambia v. Myanmar Case’ (2022) 21 (3) Chinese Journal of International Law 589. See also Prosper Weil, ‘Towards Relative Normativity in International Law’ (1983) 77 (3) American Journal of International Law 413. 44 Alexander J. Bělohlávek, ‘Public Policy and Public Interest in International Law and EU Law’ in Alexander J. Bělohlávek and Naděžda Rozehnalova (eds), Czech Yearbook of International Law (Juris Publishing 2012) 126. 45 Benedict Kingsbury and Nahuel Maisley, ‘Infrastructures and Laws: Publics and Publicness’ (2021) 17 Annual Review of Law and Social Science 353. 46 Chandran Kukathas, ‘Political Community’, in Chandran Kukathas, The Liberal Archipelago: A Theory of Diversity and Freedom (Oxford University Press 2003) 172. 47 John Locke, Two Treatises of Government (York University 1823) 146 available at accessed 18 January 2023. See also Shannon Hoff, ‘Locke and the Nature of Political Authority’ (2015) 77 (1) The Review of Politics 1. 48 Thomas Hobbes, De Cive (On the Citizen) (Cambridge University Press 1998) 74; Immanuel Kant, Metaphysischen Anfangsgründe der Rechtslehre (Metaphysical Elements of Justice) 2nd edn (Hackett 1999) para 44. See also: Jeremy Waldron, ‘The Principle of Proximity’ (2011) NYU School of

42  Yusra Suedi and Justine Bendel Once we have understood the foregoing claims, it is less important to delimit every category of “public” in international law. Indeed, as Benn describes, public interests are “the interest[s] of no-one special”.49 Barry adds that they seek to benefit all members of society rather than particular individuals or groups.50 Jenks described in 1979 that the interest in the subject matter of a claim is the collective welfare, and not “individual prejudice or individual substantive interest”.51 This reinforces our earlier claim that they are underpinned by common values. However, it is possible to identify models of the “public”. In the domestic context, the public can refer to a group of identifiable people (for example, disadvantaged contractual parties), a local community (for example, inhabitants of a shared neighbourhood) or society as a whole (for example, an entire city or even nation impacted by environmental harm).52 As the scope becomes larger, so does the abstract nature of the “public”. Similarly to domestic law, the public in international law can take different forms. We will provide four models of “public” whose interests have been observed to be protected through international litigation. In most cases, the beneficiaries are not the litigators themselves, but the litigators act on their behalf. First, the public may be a community of individuals within a nation. Examples include the Rohingya group in Myanmar and the Chagossians, both groups having pursued litigation before international courts and tribunals.53 Such communities may be identified as “peoples” as – while the term has been deliberately undefined in international law54 – it has been argued that a “people” typically share common traits, such as a sense of identity, heritage, ethnicity, language or religion.55 More Law, Public Law Research Paper No. 11-08 accessed 16 January 2023. 49 Stanley Benn, ‘“Interests” in Politics’ (1960) 60 (1) Proceedings of the Aristotelian Society 123. Emphasis added. 50  Brian Barry, Political Argument (Harvester Wheatsheaf 1990). 51 Wilfred Jenks, ‘The General Welfare as a Legal Interest’, in Gabriel Wilner (eds), Jus et Societas, Essays in Tribute to Wolfgang Friedman (Martinus Nijhoff Publishers 1979) 151. 52 Alexander J. Bělohlávek, ‘Public Policy and Public Interest in International Law and EU Law’ in Alexander J. Bělohlávek and Naděžda Rozehnalova (eds), Czech Yearbook of International Law (Juris Publishing 2012) 121. 53  Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Preliminary Objections, Judgment, I.C.J. Reports 2022; Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, I.C.J. Reports 2019. 54 Tomuschat has argued that a plain understanding of the term as people in the ethnic sense would result in anarchy. See Christian Tomuschat, ‘Secession and Self-Determination’, in Marcelo Kohen (ed), Secession: International Law Perspectives (Cambridge University Press 2006) 25. See also Reference re Secession of Quebec, [1998] 2 S.C.R. 217, para 123 (“with little formal elaboration of the definition of ‘peoples’, the result has been that the precise meaning of the term ‘people’ remains somewhat uncertain”). 55  Accordance with international law of the unilateral declaration of independence in respect of Kosovo, Advisory Opinion, Separate Opinion of Judge Cançado Trindade, I.C.J. Reports 2010, para 228; Milena Sterio, ‘The Kosovar Declaration of Independence: “Botching the Balkans” or Respecting International Law?’ (2009) 37 Georgia Journal of International and Comparative Law 267, 277

Public Interest Litigation  43 broadly, this community of individuals shares more than their geographical locality. They can form a part of the population or consist of all inhabitants of the nation. Second, the public may be an identifiable group of states parties to a multilateral treaty. Conversely to the other models of “public” presented in this section, this “public” are both the beneficiaries and the litigators. For example, in the ongoing Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation), over 20 European states submitted requests to intervene in proceedings pursuant to Article 63 of the ICJ’s Statute. Some states (for example, New Zealand, the United States, France, Italy and Ireland), in their submissions, justified their right to intervene on the grounds of their “common interest” in the proper construction of the Genocide Convention.56 An identifiable group of states may typically litigate to uphold their obligations erga omnes partes; the norm enshrining the public interest is therefore contained in a treaty.57 Third, the public may be the international community of states, at large. Hernández has opined that while the term “international community” is “essentially relational” (“determined and defined by its participants”), the term only has legal significance when the functions for which a community exists may be identified: the preservation of interests involving a “mutual and necessary co-dependence of members in the pursuit of a ‘profit collectif’”.58 The concept in itself therefore encompasses more than an unlimited collective of states, but an underlying objective to uphold common – or public – interests.59 and 287; Michael P. Scharf, ‘Earned Sovereignty: Juridical Underpinnings’ (2003) 31 Denver Journal of International Law and Policy 373, 378–379. 56  Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation), Declaration of Intervention of New Zealand, I.C.J. Reports 2022, paras 11–12 accessed 18 January 2023; Declaration of Intervention og the United States of America, I.C.J. Reports 2022, para 9 accessed 18 January 2023; Declaration of Intervention of Italy, I.C.J. Reports 2022, para 14 accessed 18 January 2023; Declaration of Intervention of Ireland, I.C.J. Reports 2022, para 10 accessed 18 January 2023; Declaration of Intervention of France, I.C.J. Reports 2022, paras 8–9 accessed 18 January 2023. 57 As a caveat, the prohibition of genocide is also a part of customary international law due to its status as a jus cogens norm. There is therefore an obligation erga omnes on all states beyond the states parties of the Genocide Convention to protect it. 58 Gleider Hernández, ‘A Reluctant Guardian: The International Court of Justice and the Concept of “International Community”’ (2013) 83 (1) The British YearBook of International Law 13, 18–19 www​.proquest​.com​/scholarly​-journals​/reluctant​-guardian​-international​-court​-justice​/docview​ /1552894901​/se-2> accessed 17 January 2023. 59 While we seek to identify the main categories of “public”, Gattini has posited that the distinction between an identifiable group of states (model 2) and the international community at large (model 3) is “artificial”. Indeed, while some may be tempted to argue that such a distinction is theoretically important, Gattini clarifies that “to the extent that a state takes action for the protection of a ‘public’ interest, i.e. an interest which transcends its own, the essence of actio popularis is satisfied”.

44  Yusra Suedi and Justine Bendel A fourth and final category will be proposed here, building on the third. The term “international community” is often understood to be reserved for states, endowed with law-making authority in international law.60 This is indicated through the expression “international community of states as a whole” employed in Article 53 of the VCLT. However, the fourth category pleads for an international community extending beyond states to their citizens, for two reasons. First, the state is a construct and everything that it is interested in should be for the benefit of its people.61 Second, if we accept that an “international community” is not only a collective of states but rather finds meaning because of the concerns, interests and values that it seeks to preserve, then we can accept that the international community “is not a collection of legal actors, but an idea”.62 As Thin, a contributing author to this edited collection, aptly explains: It is a legal fiction to which we impute interests, in very much the same way as we impute interests to the socio-legal construct of “the public”. In this way, the “international community” finds definition (at least for these purposes) in the international community interest, and not the other way around.63 Therefore, and building on the first point, there is no reason why non-state actors such as individuals could not form a part of the international community. This would result in a fourth category of an international community not only of states but of all entities. This more accurately captures the reality that in international law, both states and individuals share the interest to preserve global public goods explained above. In inter-state litigation, it is therefore possible to conceive “a series of overlapping publics constituted by the pool of those individuals liable to be affected – or at least affected to a certain threshold of significance – by particular decisions”.64 This category would not be able to litigate collectively – states

Andrea Gattini, ‘Actio Popularis’ (2019) Max Planck Encyclopedias of International Law accessed 16 January 2023. 60  Sarah Thin, ‘Community Interest and the International Public Legal Order’ (2021) 68 Netherlands International Law Review 35, 45 61 Georges Scelle boldly stated that there is thus no state, but only individuals. See Georges Scelle, Précis de droit des gens (Recueil Sirey 1932). 62  Sarah Thin, ‘Community Interest and the International Public Legal Order’ (2021) 68 Netherlands International Law Review 35, 45. 63  Ibid. 64 Benedict Kingsbury and Megan Donaldson, ‘From Bilateralism to Publicness in International Law’ in Ulrich Fastenrath et al. (eds), From Bilateralism to Community Interests: Essays in Honour of Bruno Simma (Oxford University Press 2011) 85 accessed 17 January 2023.

Public Interest Litigation  45 would typically litigate, jurisdictionally on behalf of the international community “of states” but in reality, for the wider public of non-state actors as well.65 3.2.3  Diverging Terminology

In an attempt to provide clarity to the convoluted concept of “public interest litigation”, we have defined its nature (section 3.2.1) and beneficiaries (section 3.2.2). A final point of confusion with respect to the concept lies in the terminology employed in international law. There are various ways of expressing the notions of both “public interests” and “public interest litigation”. Even across the various contributions to this edited collection, a variety of terms has been employed.66 This section distinguishes these terms. In the domestic context, “public interest” characterises the concept, while “public interest litigation” and “strategic litigation” are most commonly employed to synonymously describe the juridical act.67 The difference in terminology “accentuate[s] different aspects of this practice”.68 Strategic interest litigation hints at the fact that the objective of the litigation is to achieve a certain outcome, which will be discussed further in section 3.3.69 Public interest litigation, by contrast, places emphasis on the legitimacy of the act: it is justified by the right to preserve the interests of the public.70 In the international law context, “public interests” as we describe them in this chapter are referred to as “community interests”, “common interests” or “collective interests”. However, the act of opening a judicial proceeding to preserve such public interests in international law is not – as one might assume – referred to as “community interest litigation”, “common interest litigation” or even “public interest litigation” as we have chosen to do. Rather, it has been coined as actio popularis, defined by the International Court of Justice as a “right resident in any member of a community to take legal action in vindication of a public interest”.71 Where the

65 Wilfred Jenks, ‘The General Welfare as a Legal Interest’ in Gabriel Wilner (eds), Jus et Societas, Essays in Tribute to Wolfgang Friedman (Martinus Nijhoff Publishers 1979) 151. 66  For instance, Egget and Thin use public interest and community interest interchangeably. Cruz Carrillo speaks about public interest and the interests of humankind. 67  Other less commonly employed terms include “human rights litigation, public interest litigation, impact litigation or impact lawyering, change lawyering, cause lawyering, legal intervention, radical lawyering, rebellious lawyering, critical lawyering, progressive lawyering and movement lawyering”. See Florian Jeßberger, Leonie Steinl, ‘Strategic Litigation in International Criminal Justice: Facilitating a View from Within’ (2022) 20 (2) Journal of International Criminal Justice 379 accessed 17 January 2023. 68 Ibid. 69 Ibid. 70  Ibid. 71 South West Africa, Second Phase, Judgment, I.C.J. Reports 1966, para 88. Actio popularis is a term originating from Roman law. It has, however, been described as a “misnomer”, as it served primarily to protect the interests of the complainant in Roman law. Se Menno T. Kamminga, Inter-State Accountability for Violations of Human Rights (University of Pennsylvania Press 1992) 139.

46  Yusra Suedi and Justine Bendel terms “public interest litigation” or “strategic litigation” have been employed in some recent academic scholarship to describe the judicial act in international law, this has been to indicate that this primarily domestic practice has been “borrowed” and exported to the international legal plane.72 For the purposes of this chapter and this edited collection, we have chosen to describe this type of litigation as “public interest litigation”. This term is chosen for several reasons. First, the term “public” indicates a stemming beyond the terms “common interests” or “community interests” which are strongly associated with, and limited to, states. We wish to emphasise, through this more all-encompassing term, that in international law, litigation for the public will arguably impact all actors beyond states. Second, the term “public” also reinforces the public nature (as opposed to private) of the matter connecting the beneficiaries in question, as discussed already, underscoring the “quality of publicness” inherent to international law.73 Third, in the context of international law where the practice is questioned, contested and sparsely used, the term “public interest litigation” places emphasis on the legitimacy of preserving the interests of the public.74 *** In characterising public interest litigation, we have clarified some conceptual difficulties surrounding it to demonstrate that it can indeed be further delineated in international law. However, one important aforementioned component is missing to achieve a comprehensive understanding of public interest litigation: its strategic purpose. This, in itself, raises controversy: are international courts and tribunals the correct fora to respond to this type of strategic litigation? This will be examined in the next section. 3.3 Political Reservations: The Strategic Use of Public Interest Litigation A key aspect of public interest litigation is its strategic motive. According to Jeßberger and Steinl, the purpose of public interest litigation is not so much about

72  For instance, The Gambia’s decision to sue Myanmar before the ICJ has been characterised in recent scholarship as “public litigation” or “strategic litigation”. See, for example: Xiao Mao, ‘PublicInterest Litigation before the International Court of Justice: Comment on The Gambia v. Myanmar Case’ (2022) 21 (3) Chinese Journal of International Law 589; Michael Ramsden, ‘Strategic Litigation before the International Court of Justice: Evaluating Impact in the Campaign for Rohingya Rights’ (2022) 33 (2) European Journal of International Law 441 accessed 17 January 2023. 73  See Benedict Kingsbury and Megan Donaldson, ‘From Bilateralism to Publicness in International Law’ in Ulrich Fastenrath et al. (eds), From Bilateralism to Community Interests: Essays in Honour of Bruno Simma (Oxford University Press 2011). 74 Florian Jeßberger, Leonie Steinl, ‘Strategic Litigation in International Criminal Justice: Facilitating a View from Within’ (2022) 20 (2) Journal of International Criminal Justice 379 accessed 17 January 2023.

Public Interest Litigation  47 the case itself, but about using courts “as forums of protest”. More specifically they wrote that: [A]chieving the objectives behind the specific case or process significantly outweighs, in the eyes of the actors pursuing litigation, the immediate outcome of that case or process. In other words, the strategic goals steer the litigation rather than the conventional other way around. A potential control question for litigants in this sense could be: Even in case of a legal loss, would it still be worth the litigation effort? Or to put it differently and to borrow a phrase coined by Jules Lobel: would a legal loss still entail “success without victory”? Thus, in essence what distinguishes strategic litigation from other types of litigation is that it is not necessarily about winning the case. Rather […] courts are used as forums of protest.75 Public interest litigation is therefore used to “promote structural change”.76 Indeed, the practice, coined by this term, originates in the 1960s civil rights movement in the United States.77 Although, as explained earlier, public interest litigation is also most commonly employed synonymously with strategic litigation in the domestic context,78 Ramsden has described such litigation with an emphasis on the strategy: it “typically involves an organised approach, with the litigant selected by a social movement campaign” and “entails strategy formation through analysis of the social situation at hand and reflection on the most appropriate judicial forum and sequencing of litigation alongside non-legal strategies, with the aim to maximise cause impact”.79 The strategic objective of public interest litigation is inevitable if enforcing the human rights or rights-related rules described earlier. Indeed, human rights–related arguments in litigation are often considered to be a “powerful discourse of public persuasion”, serious enough to garner the attention needed to make change.80 75  Ibid. 76  Michael Ramsden and Kris Gledhill, ‘Defining Strategic Litigation’ (2019) 4 Civil Justice Quarterly 407, 411. 77  Christine Forster and Vedna Jivan, ‘Public Interest Litigation and Human Rights Implementation: The Indian and Australian Experience’ (2008) 3 Asian Journal of Comparative Law 1. 78 Other terms include “human rights litigation, public interest litigation, impact litigation or impact lawyering, change lawyering, cause lawyering, legal intervention, radical lawyering, rebellious lawyering, critical lawyering, progressive lawyering and movement lawyering”. See Florian Jeßberger and Leonie Steinl, ‘Strategic Litigation in International Criminal Justice: Facilitating a View from Within’ (2022) 20 (2) Journal of International Criminal Justice 379 accessed 17 January 2023. 79 Michael Ramsden, ‘Strategic Litigation before the International Court of Justice: Evaluating Impact in the Campaign for Rohingya Rights’ (2022) 33 (2) European Journal of International Law 441 accessed 17 January 2023; Michael Ramsden and Kris Gledhill, ‘Defining Strategic Litigation’ (2019) 4 Civil Justice Quarterly 407, 411. 80 Many scholarly works have argued that the general notion of human rights is a powerful “discourse of public persuasion”. This term is borrowed from such works. See Christine Leuenberger, ‘The Rhetoric of Maps: International Law as a Discursive Tool in Visual Arguments’ (2013) 7 (1) The

48  Yusra Suedi and Justine Bendel In international litigation, Venzke observes that the main aim of both the ICJ Marshall Islands cases (2016) and South West Africa (1966) cases “was precisely to lend the political process a helping hand in pursuing the public interests”.81 It is therefore important to look at why public interest cases have been put forward and understand the motivations for bringing such cases. Currently, a recurring public interest that international courts are being requested to decide on is in relation to climate change.82 Multiple judicial fora are being seized to engage states with their international obligations relating to climate change, such as human rights fora (regional and international – including the InterAmerican Court of Human Rights83), the International Court of Justice and the International Tribunal for the Law of the Sea (ITLOS). The public interest element of these cases is undeniable and often relied on by the claimants. For instance, the Commission of Small Island States on Climate Change and International Law (COSIS), which took initiative to request an advisory opinion before the ITLOS,84 motivated its request for an advisory opinion based on the fact that climate change is a “common concern of humanity”.85 The Republic of Vanuatu, leading the campaign towards an advisory opinion at the ICJ aims “to bring a voice to vulnerable and marginalised populations, including indigenous peoples, migrants, women, children, persons with disabilities, the elderly, and the poor, who are the most at risk to the impacts of climate change”.86 It is a valid question to ask whether it is sensible to use public interest litigation to advance the fight against climate change, or whether other political fora are

Law and Ethics of Human Rights 73; Tony Evans, ‘International Human Rights Law as Power/ Knowledge’ (2005) 27 (3) Human Rights Quarterly 1046; Meg McLagan, ‘Human Rights, Testimony, and Transnational Publicity’ (2003) 2 (1) The Scholar and Feminist Online accessed 17 January 2023; Wendy S. Hesford, ‘Human Rights Rhetoric of Recognition’ (2011) 41 (3) Rhetoric Society Quarterly 282. 81 Ingo Venzke, ‘Public Interests in the International Court of Justice – A Comparison Between Nuclear Arms Race (2016) and South West Africa (1966)’ (2017) 111 American Journal of International Law Unbound 68. 82 See Maiko Meguro, ‘Litigating Climate Change Through International Law: Obligations Strategy and Rights Strategy’ (2020) 33 (4) Leiden Journal of International Law 933. 83 Colombia and Chile are presenting a request for an advisory opinion on the obligations of states parties to the American Convention of Human Rights in light of the climate crisis. See further: Ministerio de Relaciones Exteriores, ‘Chile y Colombia realizan inédita consulta a la Corte Interamericana de Derechos Humanos sobre emergencia climática’ (9 January 2023) accessed 25 January 2023. 84 Agreement for the Establishment of the Commission of Small Island States on Climate Change and International Law, 31 October 2021, Article 2.2 accessed 17 January 2023. 85 Ibid., Preamble. 86 Vanuatu ICJ Initiative, ‘The Republic of Vanuatu’ accessed 17 January 2023.

Public Interest Litigation  49 better suited for this. Should multilateral negotiations be prioritised?87 There is the “risk of wearing out the judicial function for political purposes”.88 Because of the political nature of public interest litigation, there is a danger of misusing courts and twisting their judicial function too far. By simply submitting a dispute to an international court, it forces the court to take a stance on the issue, by deciding whether to take the case or not (within the jurisdictional limits imposed on each international tribunal). This can create a backlash against international judicial institutions.89 In light of the foregoing, one may ask whether the pursuit of public interest litigation should be encouraged. Should courts render decisions in cases where a “network of interrelated and interdependent obligations”90 is invoked? International courts have come back and forth on these issues, and the tool that they have used to detach themselves from high-profile and highly politicised issues is formalism – a principle that justifies a strict and narrow application of procedural rules91 – or judicial caution. We submit that they should engage with public interest litigation, for three reasons. First, public interest litigation may offer an equal playing field for the parties involved which is more difficult to achieve in multilateral negotiation. O’Hara has argued that in decision-making in the World Trade Organization (WTO), for example, consensus (the absence of formal objection) – disguised as an equaliser between nations – has in fact concealed the imposition of power relations by the Global North on the Global South.92 Conversely, in the context of smaller states engaging in litigation against greater powers, for instance, Guilfoyle wrote, “[s]trategic litigation … leverages the core promise of sovereign equality: that formal equality may level the playing field (to some extent) between smaller and larger states through giving them equal juridical standing to bring claims and be heard”.93 Second, public interest litigation may offer new opportunities for international courts and tribunals to reaffirm their legitimacy. There is a fear that the judicial 87 Priya Urs, ‘Obligations Erga Omnes and the Question of Standing before the International Court of Justice’ (2021) 34 (2) Leiden Journal of International Law 505. 88 Andrea Gattini, ‘Actio Popularis’ (2019) Max Planck Encyclopedias of International Law accessed 16 January 2023. 89 Mikael Rask Madsen, Pola Cebulak and Micha Wiebuch, ‘Backlash against International Courts: Explaining the Forms and Patterns of Resistance to International Courts’ (2018) 14 (2) International Journal of Law in Context 197. 90 Vincent-Joël Proulx, ‘The Marshall Islands Judgment and Multilateral Disputes at the World Court: Whither Access to International Justice?’ (2017) 111 American Journal of International Law Unbound 96, 100. 91 Ibid. 92 Claerwen O’Hara, ‘Consensus Decision-Making and Democratic Discourse in the General Agreement on Tariffs and Trade 1947 and World Trade Organisation’ (2021) 9 (1) London Review of International Law 37 accessed 17 January 2023. 93 Douglas Guilfoyle, ‘The Chagos Archipelago Before International Tribunals: Strategic Litigation and the Production of Historical Knowledge’ (2021) 21 (3) Melbourne Journal of International Law 750.

50  Yusra Suedi and Justine Bendel course might be exploited by an applicant, thereby calling the authenticity of the claims into question – for instance, states could be acting not to protect common values but “in the service of powerful lobbies”.94 Claims made in the public interest are politically motivated but do not necessarily mean that they are legally frivolous or that they can be disposed of easily.95 Further, despite the fact that public interest litigation is strategically used, there are degrees of authenticity in the claims. If certain claims are completely instrumentalised or fabricated, to the point of being misused by lobbies, for instance, courts will have more legitimate reasons to dismiss the claims.96 This speaks to the relativity of the legitimacy of the courts’ choices. Indeed, the interpretative choices they will make during the life of a certain case will either be met with reticence or with expectation. Depending on the view, it will be considered an activist court and may lose its legitimacy, or the contrary.97 But Bantekas argues that “the only thread that ultimately renders all international courts and tribunals legitimate is their pursuit of public interest, in one or more shapes and forms”.98 Third, when cases are brought before an international court in the public interest, the court in question will inevitably have to position itself within the political context, which is beneficial for its own relevance in the international legal order. This is because the judicialisation of international relations (albeit uneven across issues)99 means that international courts are more involved in all issues, including of public interest.100 While the international judicial system is perceived as stronger, or at least has gained a more prominent part in international relations, it inevitably means it will become (intentionally or not) part of states’ and non-states

  94 Andrea Gattini, ‘Actio Popularis’ (2019) Max Planck Encyclopedias of International Law accessed 16 January 2023.   95 Brown Weiss, ‘Invoking State Responsibility in the Twenty-First Century’ (2002) 96 American Journal of International Law 798, 805. In this author’s view, “the right to hold other states accountable for breaching obligations owed to the international community as a whole” may potentially create a series of claims that can be “frivolous or politically motivated”. But we argue that the dissociation between legally frivolous and politically motivated is crucial in understanding public interest claims. Their political motivations cannot automatically imply that they are legally frivolous.   96 In a different context, Petersman shows how expert witnesses can be strategically used for certain advantages in courts and explains why the legitimate aim may not always justify the means. See Marie-Catherine Petersman, When Environmental Protection and Human Rights Collide: The Politics of Conflict Management by Regional Courts (Cambridge University Press 2022) 235.   97 Fuad Zarbiyev, ‘Judicial Activism in International Law – A Conceptual Framework for Analysis’ (2012) 3 (2) Journal of International Dispute Settlement 247, 251–252.   98 Ilias Bantekas, ‘The Public Interest Perspective of International Courts and Tribunals’ (2021) 38 (1) Arizona Journal of International and Comparative Law 61, 63.   99 Benedict Kingsbury, ‘International Courts: Uneven Judicialisation in Global Order’, in James Crawford and Martti Koskenniemi (eds), The Cambridge Companion to International Law (Cambridge University Press 2012). 100 Karen Alter, Emilie Hafner-Burton and Laurence Helfer, ‘Theorising the Judicialisation of International Relations’ (2019) 63 (3) International Studies Quarterly 449.

Public Interest Litigation  51 actors’ political strategies.101 Indeed, the argument that the existence of a broader political issue surrounding the legal dispute at hand is justification to dismiss a case has been consistently denied by international courts.102 International courts and tribunals therefore have an interest in engaging with such cases for their own relevance and legitimacy. 3.4 Procedural Reservations: Judicial Bilateralism and Public Interest Litigation This chapter has sought to identify the key reservations with respect to public interest litigation, covering its conceptual ambiguities (section 3.2) and political motives (section 3.3). The final concern is whether international courts and tribunals, designed for bilateral disputes, are fit and able to procedurally accommodate public interest litigation. As mentioned at the beginning of the chapter, the bilateral features of international law have been entrenched and institutionalised in international courts and tribunals since they were created. Indeed, the procedural law of the latter was not initially designed to facilitate public interest litigation. Tams summarised the situation when he wrote: public interest claims operate within what might be called “hostile territory” – within a dispute settlement system that is based on consent and that at least traditionally has been premised on a bilateralist model of inter-state litigation about rights and duties.103 Concern has been expressed in recent scholarship that international courts and tribunals are not appropriate venues for public interest litigation. For instance, Mao recently argued with respect to the Gambia v. Myanmar case that “the adversarial structure of the contentious proceedings of the court and the procedural rules applicable to it are ill-suited to public-interest litigation”.104 This sparked debate, with Islam retaliating that “putting erga omnes into motion” is not an overreach of the Court’s jurisdiction.105 Indeed, literature has suggested that certain bilateral proce-

101 Bertrand Badie, Dirk Berg-Scholler and Leonardo Morlino, ‘Judicialisation of International Relations’ in Bertrand Badie, Dirk Berg-Scholler and Leonardo Morlino (eds), International Encyclopedia of Political Science (Sage 2011) 1378–1382. 102 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, para 13; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, para 53. 103 Christian Tams, ‘Individual States as Guardians of Community Interests’ in Ulrich Fastenrath et al., From Bilateralism to Community Interests: Essays in Honour of Bruno Simma (Oxford University Press 2011) 383. 104 Xiao Mao, ‘Public-Interest Litigation before the International Court of Justice: Comment on The Gambia v. Myanmar Case’ (2022) 21 (3) Chinese Journal of International Law 589. 105 Md Rizwanul Islam, ‘Not an Overreach of the Court’s Jurisdiction, Putting Erga Omnes into Motion: In Partial Response to Xiao Mao’s Comment on the ICJ’s Judgment on the Preliminary

52  Yusra Suedi and Justine Bendel dural features can and should be adapted to accommodate public interest litigation. In this context, scholars – including some in this edited collection – have argued that procedures should be relaxed or adjusted to accommodate public interests.106 Such an exercise has also been supported by certain ICJ judges who have warned against the dangers of an “excess in formalism”.107 This section seeks to explore the main procedural features creating potential obstacles for public interest litigation and discusses possibilities for circumvention. It addresses jurisdiction and admissibility (section 3.4.1), participation (section 3.4.2) and enforcement (section 3.4.3). 3.4.1  Access: Jurisdiction and Admissibility

Jurisdiction and, more generally, access, represent the “true foundations of litigation”.108 When they are fulfilled, an international court or tribunal can entertain proceedings. Judicial bilateralism may impede public interest litigation in many ways. The requirement of a dispute, for example – “a disagreement on a point of law or fact, a conflict of legal views or interests, or the positive opposition of the claim of one party by the other”109 – may severely limit the public interest cases that may come before a court, as was seen in Marshall Islands cases.110 In this

Objections in The Gambia v. Myanmar’ (2022) 21 (3) Chinese Journal of International Law 611 accessed 17 January 2023. 106 André Nollkaemper, ‘International Adjudication of Global Public Goods: The Intersection of Substance and Procedure’ (2012) 23 (3) European Journal of International Law 769, 781; Christine Chinkin, ‘Presentation by Professor Christine Chinkin’ in Connie Peck and Roy S. Lee (eds), Increasing the Effectiveness of the International Court of Justice (UNITAR 1997) 43, 50, 56; Lori Fisler Damrosch, ‘Multilateral Disputes in The International Court of Justice’ in Lori Fisler Damrosch (ed), The International Court of Justice at a Crossroads (1st edn, Transnational Publishers 1987) 376. 107 Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom), Preliminary Objections, Judgment, Dissenting Opinion of Judge ad hoc Bedjaoui, I.C.J. Reports 2016, para 22 (“mais pour ‘heure le danger le plus inquiétant reste l’excès de formalism”, author’s translation). See also Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom), Preliminary Objections, Judgment, Dissenting Opinion of Judge Bennouna, I.C.J. Reports 2016, p. 2; Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom), Preliminary Objections, Judgment, Dissenting Opinion of Cançado Trindade, I.C.J. Reports 2016, esp. para 11; South West Africa, Second Phase, Judgment, Dissenting Opinion of Judge Tanaka, I.C.J. Reports 1966, pp. 250, 276; Taslim Olawale Eliaw, Africa and the Development of International Law (A.W. Sijthoff 1972) 75. 108 Juan José Quintana, Litigation at the International Court of Justice (Brill/Nijhoff Publishers 2015) xvi accessed 18 January 2023. He uses the term “access” instead of “standing”, see p. 3. 109 Land and Maritime Boundary between Cameroon and Nigeria, Preliminary Objections, Judgment, I. C.J. Reports 1998, para 89. 110 Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom).

Public Interest Litigation  53 section, we turn to two prominent areas where issues are raised in light of public interest litigation: jurisdiction (section 3.4.1.1) and standing (section 3.4.1.2). 3.4.1.1 Jurisdiction

Jurisdiction concerns the ways in which consent is given to the international court to hear the dispute,111 which can be a limiting factor in cases in the public interest. The question of jurisdiction of inter-state courts for public interest claims is crucial as without jurisdiction, no proceedings can take place. It can only be given through state consent, which is at the heart of the judicial system.112 Before the ICJ, for example, such consent can be given in various ways: ad hoc jurisdiction (when states in a dispute on a particular matter spontaneously submit a special agreement), treaty-based jurisdiction (when an already-existing treaty provides in a compromissory clause that in case a dispute arises, they may refer it to the court) or compulsory jurisdiction (when a state submits a unilateral declaration recognising the jurisdiction of the court as binding, with respect to any other state that also accepts it as binding, for any dispute in the future). With respect to public interest, two issues related to jurisdiction may arise. First, it is questionable whether states would consent – through compulsory or consensual jurisdiction – to litigation matters in the public interest. For instance, following the Court’s finding in the Marshall Islands cases that the absence of a dispute rendered the Marshall Islands’ request for nuclear disarmament (considered to be public interest litigation by Venzke113) obsolete, the UK modified its optional clause declaration in 2017 barring “any claim or dispute that arises from or is connected with or related to nuclear disarmament and/or nuclear weapons”.114 More specifically, states may choose to exclude a compromissory clause conferring jurisdiction to the ICJ by reservation. These examples indicate states’ potential reticence to litigate public interest issues that may counter their own personal interests. They may, for example, wish to avoid ending up as “targets” for public interest pursuits that they are perhaps not primarily or directly responsible for, due to their jurisdictional accessibility.115 However, scholars such as Simma and

111 For the ICJ, see Malcolm Shaw, International Law (6th edn, Cambridge University Press 2008) 1070–1086. 112 Markus Benzing, ‘Community Interests in the Procedure of International Courts and Tribunals’ (2006) 5 (3) The Law and Practice of International Courts and Tribunals 369, 374. 113 Ingo Venzke, ‘Public Interests in the International Court of Justice – A Comparison Between Nuclear Arms Race (2016) and South West Africa (1966)’ (2017) 111 American Journal of International Law Unbound 68. 114 United Kingdom of Great Britain and Northern Ireland, ‘Declarations recognising the jurisdiction of the Court as compulsory’ (International Court of Justice, 22 February 2017) accessed 17 January 2023. 115 In recent climate litigation, states have attempted to absolve themselves of responsibility through the “drop in the ocean argument”, claiming that many actors are responsible for climate harm and it is not possible to attribute responsibility to one individual state. See, for example: Human Rights Committee, Daniel Billy et al. v Australia, Views adopted by the Committee under Article 5 (4)

54  Yusra Suedi and Justine Bendel Crawford have argued that reservations to clauses in multilateral treaties conferring erga omnes partes obligations are impermissible.116 Further, states have resorted to advisory opinions to pursue public interest litigation where jurisdiction proved to be a potential hurdle, offering an alternative to contentious cases.117 More generally, the growing number of public interest cases – particularly in environmental law – perhaps indicates that jurisdiction does not impede public interest litigation entirely. Second, the Monetary Gold principle, discussed in this collection by McGarry and Zargarinejad, may create issues with respect to consent to jurisdiction. This principle holds that the rights, responsibilities or legal position of absent third states cannot be ruled on in a bilateral dispute if they constitute the “very subjectmatter” of the dispute. The rationale of this principle is to uphold state consent and, more broadly, the idea that sovereign states cannot be subject to the legal authority of other states.118 Scholars such as Mollengarden and Zamir have called for the principle’s abandonment,119 and it could cost international courts and tribunals the opportunity to render judgments on significant issues of concern to the global public. However, it must be noted that – pursuant to the Larsen v. Hawaiian Kingdom doctrine – an international court is not ruling on the rights, responsibilities or legal position of an absent third state without its consent if it is merely applying a legal finding that is already binding or authoritative on that third state. A recent example of this exception in application was seen in Mauritius/Maldives, where the ITLOS

of the Optional Protocol, concerning communication No. 3624/2019, CCPR/C/135/D/3624/2019, 21 July 2022, para 6.3. accessed 18 January 2023. See further: Jacqueline Peel, ‘Issues in Climate Change Litigation’ (2011) 5 (1) Carbon & Climate Law Review 15, 16–17. 116 Bruno Simma, ‘From Bilateralism to Community Interest in International Law’ (1994) 250 Collected Courses of the Hague Academy of International Law 234, 342–4; James Crawford, ‘Chance, Order, Change The Course Of International Law General Course On Public International Law’ (2014) 365 Collected Courses of the Hague Academy of International Law para 324. 117 This is exemplified in the request for advisory opinion by the UN General Assembly in relation to the illegal occupation in Palestine in 30 December 2022 (UN General Assembly, Israeli practices affecting the human rights of the Palestinian people in the Occupied Palestinian Territory, including East Jerusalem, A/RES/77/247, 9 January 2023, para 18), as well as the request for an advisory opinion on climate change to ITLOS by COSIS (Commission of Small Island States on Climate Change and International Law, Request for an Advisory Opinion, 12 December 2022 accessed 18 January 2023) . 118 Dapo Akande, ‘Introduction to the Symposium on Zachary Mollengarden & Noam Zamir “The Monetary Gold Principle: Back to Basics”’ (2021) 115 American Journal of International Law Unbound 140, 141. 119 Zachary Mollengarden and Noam Zamir, ‘The Monetary Gold Principle: Back to Basics’ (2021) 115 (1) American Journal of International Law 41, 44. Bruno Simma has also criticised: “it is ironic that the very court that spelled out the concept [of obligations erga omnes] in the first place has now subjected it to the procedural rigours of traditional bilateralism”. Bruno Simma, ‘From Bilateralism to Community Interest in International Law’ (1994) 250 Collected Courses of the Hague Academy of International Law 234, 297.

Public Interest Litigation  55 determined that the UK – an absent third party – did not have sovereignty over the Chagos archipelago, as it was merely reiterating the ICJ’s findings in its Chagos advisory opinion and UN General Assembly resolutions.120 Should international courts and tribunals uphold the Monetary Gold principle, this caveat may be a way to circumvent it. 3.4.1.2 Standing

Standing is a particularly delicate issue in public interest litigation. It generally “refers to the entitlement of an entity to be a party to judicial proceedings concerning contentious cases”.121 Standing normally exists when the applicant initiating such litigation (whether a state or an individual) has suffered harm as a result of the defendant’s breach of international law. Public interest litigation challenges the traditional notion of standing in two ways. First, it allows the applicant to bring a claim not only for their harm but on behalf of a wider public having suffered the same. Second, applicants can also bring a claim without having suffered any injury or harm, but solely based on the public interest. In other words, the applicant initiating such litigation may have symbolically or fictively – but not tangibly – suffered injury as a result of the defendant’s breach of international law, and yet, may altruistically defend others who have tangibly suffered injury. The collective nature of this symbolic injury was reflected by Elihu Root as early as 1915, who explained that If, for example, a man be robbed or assaulted, the injury is deemed not to be done to him alone, but to every member of the state by the breaking of the law against robbery or against violence […] because the law is his protection, and if the law be violated with impunity, his protection will disappear.122 The public quality of the law, echoed above by Kingsbury and Waldron, confers the right and obligation to uphold it – even if the applicant has only suffered a symbolic or fictive injury. The ILC’s Draft Articles on State Responsibility confirmed this possibility in its Articles 42 and 48.123 The concept solidified in those Articles

120 Dispute concerning Delimitation of the Maritime Boundary between Mauritius and Maldives in the Indian Ocean, Preliminary Objections, Judgment of 28 January 2021, International Tribunal for the Law of the Sea, paras 166–168, 189. 121 Giorgio Gaja, ‘Standing: International Court of Justice (ICJ)’ (2018) Max Planck Encyclopedias of International Procedural Law para 1. accessed 17 January 2023. 122 Elihu Root, ‘The Outlook for International Law’ (1916) 10 (1) American Journal of International Law 1, 8. 123 International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, November 2001, Supplement No. 10 (A/56/10), Articles 42 and 48.

56  Yusra Suedi and Justine Bendel “reflects a shift of emphasis from the bilateral view of state responsibility to a concept of inherent legal injury”, in the words of Meron.124 In inter-state litigation (such as the ICJ, ITLOS or the WTO), while the ICJ did not allow for a broader interpretation of standing in South West Africa in 1966, today “any member of a community”125 may litigate in the public interest to uphold their obligations erga omnes partes, as seen in Gambia v. Myanmar.126 Indeed, erga omnes partes obligations in multilateral treaties (such as multilateral environmental agreements or human rights treaties) have created the judicial avenue for states to bring claims defending their symbolic and collective injury. In this sense, rules on standing when it comes to inter-state disputes are more flexible than the general commentaries acknowledge.127 However, this development comes with ambiguities. First, it is not always clear which rules confer erga omnes partes obligations. As explained earlier, not all human rights norms confer such obligations. Further, the Court has not yet been presented with an opportunity to clarify the identification of erga omnes – as opposed to erga omnes partes – obligations.128 The Marshall Islands argued in the Marshall Islands cases that its locus standi was grounded on an obligation erga omnes (under general international law) with respect to the defendants who were not parties to the Treaty on the Non-Proliferation of Nuclear Weapons, but alongside erga omnes partes obligations, and the inadmissibility of the case meant that the Court could not provide any clarity on this point.129 The absence of an exhaustive list and a clear means to identify such obligations beyond sparse judicial pronouncements – even obiter dicta – has sparked fear in certain scholars of “subjectivity and over-breadth”,130 which will “invite mobjustice”131 or “chaos and violence […] com[ing] to reign amongst states” who could “appoint [themselves] the avenger[s] of the international community” in the name of higher values.132 Still, such fears seem overstated as, conversely, the ambiguity 124 Theodor Meron, The Humanisation of International Law (Brill/Nijhoff Publishers 2006) 250. 125 South West Africa, Second Phase, Judgment, I.C.J. Reports 1966, para 88 (emphasis added). 126 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Preliminary Objections, Judgment, I.C.J. Reports 2022. 127 Christian Tams, ‘Individual States as Guardians of Community Interests’ in Ulrich Fastenrath et al., From Bilateralism to Community Interests: Essays in Honour of Bruno Simma (Oxford University Press 2011) 387. 128 Marco Longobardo, ‘The Standing of Indirectly Injured States in the Litigation of Community Interests before the ICJ’ (2021) 24 (5) International Community Law Review 476, 497–499 accessed 17 January 2023. 129 Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom), Memorial of the Marshall Islands, I.CJ. Reports 2015, para 103–110. 130 Xiao Mao, ‘Public-Interest Litigation before the International Court of Justice: Comment on The Gambia v. Myanmar Case’ (2022) 21 (3) Chinese Journal of International Law 589. 131 Krystyna Marek, ‘Criminalising State Responsibility’ (1978–1979) 14 Revue Belge de droit international 460, 461, 481. 132 Prosper Weil, ‘Towards Relative Normativity in International Law’ (1983) 77 (3) American Journal of International Law 413, 433.

Public Interest Litigation  57 surrounding erga omnes (partes) obligations may serve as a barrier to bringing public interest cases. The seeming dependence on an ICJ pronouncement to understand which rules confer such obligations, combined with the latter’s own judicial caution and the rare opportunities to make such pronouncements, has resulted in a “narrowly defined circle of community interests”.133 What is more, states are calculative actors who carefully weigh and consider their decision to litigate – this would especially be true for public interest matters. Overall, inter-state courts such as the ICJ have expanded the interpretation of standing through public interest litigation. In most individual-state litigation before human rights bodies (such as regional courts and UN human rights treaty bodies), the applicant is required to be a victim who was directly injured.134 The African Commission on Human and Peoples’ Rights stands as an exception, allowing for communications to be submitted by a person or group that is not itself the victim of the violation but is acting in the public interest, as seen in Social and Economic Rights Action Center & the Center for Economic and Social Rights v. Nigeria (ACmHPR 1996).135 Otherwise, the European Court of Human Rights (ECtHR) has a strict practice in this regard, as discussed in this edited collection by Heri.136 UN human rights treaty bodies have also rejected petitions that did not meet this requirement.137 Therefore, while the applicant can bring a claim for their injury and on behalf of a wider public, they cannot bring a claim without having suffered any injury themselves. Still, in recent climate cases, victimhood is being stretched to somewhat accommodate public interests.138 The UN Committee on the Rights of the Child, for instance, ruled that 16 petitioning children were victims of human rights violations

133 Christian J. Tams and Antonios Tzanakopoulos, ‘Barcelona Traction at 40: The ICJ as an Agent of Legal Development’ (2010) 23 Leiden Journal of International Law 781, 792. 134 Victims can be defined as “persons who individually or collectively suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that constitute gross violations of international human rights law”. United Nations General Assembly, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, A/RES/60/147, 21 March 2006, p. 5, para 8. 135 Social and Economic Rights Action Centre & the Centre for Economic and Social rights v. Nigeria. Communication No. 155/96, African Commission on Human and Peoples’ Rights, 14 March 1996. This approach aligns with the African Charter’s guarantee that collective or peoples’ rights are justiciable: Françoise Hampson, Claudia Martin and Frans Viljoen, ‘Inaccessible apexes: Comparing access to regional human rights courts and commissions in Europe, the Americas, and Africa’ (2018) 16 (1) International Journal of Constitutional Law 161, 181. 136 See also generally: European Court of Human Rights, Practical Guide on Admissibility Criteria (last updated 31 August 2022) available at accessed 18 January 2023. 137 See, for example: Human Rights Committee, Group of associations for the defence of the rights of disabled and handicapped persons in Italy and Persons signing the communication (on behalf of Disabled and handicapped persons in Italy) v. Italy, Admissibility, Decision, Communication No 163/1984, CCPR/C/21/D/163/1984, 10 April 1984, para 6.2. 138 Corina Heri develops this aspect further in Chapter 13 of this edited collection.

58  Yusra Suedi and Justine Bendel because the government respondents were not upholding their climate obligations – referring to climate science to establish the causal link.139 The ECtHR has also stated that “the term ‘victim’ […] must be interpreted in an evolutive manner in the light of conditions in contemporary society. [… An] excessively formalistic […] interpretation of that concept would make protection of the rights guaranteed by the Convention ineffectual and illusory”.140 This indicates the potential for standing rules to be further adapted to accommodate public interest litigation, as it has before inter-state courts. 3.4.2  Participation: Inadequate Procedural Mechanisms?

Beyond jurisdiction and standing, public interest cases also challenge procedural rules concerning participation. This section discusses in particular third-party intervention and civil society participation. Such mechanisms have been, and will likely continue to be, adjusted as a result of public interest litigation. Third-party intervention enables actors other than the bilateral parties to the dispute to take part in proceedings. The reasons for this vary depending on the international court in question: before the ICJ or the WTO, the third state must have an interest in the decision, although the standard varies between them.141 As early as 1948, Philip Jessup pondered if the “legal interest” in Article 62 of the freshly adopted ICJ Statute could allude to a wider community interest,142 and this is discussed by Eggett and Thin in Chapter 4. The ICJ and ITLOS also allow third-party intervention where the interpretation or application of a multilateral convention is in question.143 But could reticent courts such as the ICJ go against its strict practice of scarcely authorising intervention to accommodate public interests? Bonafè has argued that if adjudication is to “pursue a real logic of inclusion and become truly multilateralised”, procedures such as third-party intervention must be authorised more openly, even against the objection of the bilateral state litigants.144 A relaxa139 UN Commission on the Rights of the Child, Decision adopted by the CRC under the Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure in Respect of Communication No. 104/2019, CRC/C/88/D/104/2019, 8 October 2021, para 10.14. See further Yusra Suedi, ‘Litigating Climate Change before the Committee on the Rights of the Child in Sacchi v Argentina et al.: Breaking New Ground?’ (2023) Nordic Journal of Human Rights accessed 18 January 2023. 140 Gorraiz Lizarraga and others v. Spain App no 62543/00 (ECHR, 17 April 2004) para 38. 141 For a full overview of interventions in judicial proceedings, see Brian McGarry, Intervening in International Justice: Third States before Courts and Tribunals (Cambridge University Press 2023). 142 Philip Jessup, A Modern Law of Nations: An Introduction (Macmillan 1948) 11, 12 accessed 18 January 2023. 143 United Nations, Statute of the International Court of Justice, 18 April 1946, Article 63; United Nations, Statute of the International Tribunal for the Law of the Sea, 10 December 1982, Article 32. 144 Beatrice I. Bonafè, ‘Adjudicative Bilateralism and Community Interests’ (2021) 115 American Journal of International Law Unbound 164, 165. See also Paula Wojcikiewicz Almeida, ‘Enhancing the International Court of Justice Procedures in Order to Promote Community Interests: The

Public Interest Litigation  59 tion of the rules concerning third-party intervention (for example, Articles 62 and 63 of the ICJ Statute) is certainly feasible,145 and the pending Ukraine v. Russian Federation case has indicated that the Court shares this sentiment (in relation to Article 63). Civil society participation is also commonly hindered by certain international courts and tribunals. Although not all non-governmental organisations (NGOs) act in the public interest, nor will their own roles and interests always align with public interests in international law, their participation is often in the defence of public interests. The submission of amicus curiae briefs by NGOs that otherwise would not have access before international courts and tribunals is the main way for interested sectors of civil society to be a part of the judicial process.146 However, NGOs are familiar with difficulties to access inter-state courts147 – Wojcikiewicz Almeida and Cohen map this out empirically with respect to the ICJ in Chapter 5, while Dar and Mohanty illustrate the same challenges in investor-state arbitration in Chapter 9. This creates a limitation for public interest litigation: not only do NGOs represent civil society and therefore a model of the public described above, but their participation may strengthen courts’ and tribunals’ fact-finding abilities.148 These prospects in international criminal litigation are discussed by Hellwig in Chapter 8. There are therefore motives of legitimacy and practicality in their further involvement in international litigation.149 Procedures have been amended150 for greater accommodation of civil society participation and are likely to continue in this direction with the rise of public interest litigation.151 Role of Third-Party Intervention’ in Patrícia Galvão Teles and Manuel Almeida Ribeiro (eds), Case-Law and the Development of International Law: Contributions by International Courts and Tribunals (Brill/Nijhoff Publishers 2021) 331. For a discussion on how this relates to the Monetary Gold principle, see Beatrice I. Bonafè, ‘Adjudicative Bilateralism and Community Interests’ (2021) 115 American Journal of International Law Unbound 164, 166–169. 145 See Markus Benzing, ‘Community Interests in the Procedure of International Courts and Tribunals’ (2006) 5 (3) The Law and Practice of International Courts and Tribunals 369, 398. 146 Astrid Wiik, Amicus Curiae before international courts and tribunals (Nomos Verlagsgesellschaft 2018) 542. 147 Brian McGarry and Yusra Suedi, ‘Judicial Reasoning and Non-State Participation before InterState Courts and Tribunals’ (2021) 21 (1) The Law & Practice of International Courts and Tribunals 123, 140–144. 148 Andrea Gattini, ‘Actio Popularis’ (2019) Max Planck Encyclopedias of International Law accessed 16 January 2023. 149 Brian McGarry and Yusra Suedi, ‘Judicial Reasoning and Non-State Participation before InterState Courts and Tribunals’ (2021) 21 (1) The Law & Practice of International Courts and Tribunals 123, 139 ff. 150 At the ICJ, Practice Direction XII has been introduced. International Court of Justice, Practice Direction XII, 30 July 2004 accessed 18 January 2023. 151 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, Dissenting Opinion of Judge Guillaume, I.C.J. Reports 1996, pp. 287–288, para 2; Eduardo Valencia-Ospina, ‘Court Clarification: Letters to the Editor’ (International Herald Tribune, New York Times, 15 November 1995) accessed 18 January 2023.

60  Yusra Suedi and Justine Bendel 3.4.3  Enforcement: Difficulties in Practice

Having discussed jurisdiction and admissibility (section 3.4.1) and participatory mechanisms (section 3.4.2), we now turn to a final potential procedural difficulty in the context of public interest litigation: enforcement. There are two steps in the enforcement of judicial decisions. The first one involves what international courts can decide as remedies to violations of public interest rules. In reviewing the existing available remedies, are international courts suited to respond to these types of violations? The second step is at a more systemic level and concerns the practicalities of enforcing the judgment not only on the two parties to the dispute but on the international community. This section considers both in turn. First, let us consider the appropriate remedies in public interest litigation. Articles 30 and 34 of ILC’s Draft Articles on State Responsibility provide for a general framework on remedies, including cessation, guarantees of non-repetition, restitution, compensation and satisfaction as the main forms of reparation in case of injury caused by an internationally wrongful act. Cessation and non-repetition, as well as satisfaction, are often relied on in public interest cases and therefore a big part of public interest litigation. Cessation, the “first requirement in eliminating the consequences of wrongful conduct”,152 demands that the state responsible for the wrongful act ceases if that act is continuing.153 It is linked to non-repetition, serving as a “preventive function [and] positive reinforcement of future performance”.154 Satisfaction consists of “an acknowledgement of the breach, an expression of regret [or] a formal apology” for instance.155 Restitution, demanding a re-establishment of “the situation which existed before the wrongful act was committed” may be counterintuitive in certain public interest litigation (such as environmental cases), as there is no means to return to the status quo ante. However, where materially possible, it may at times be desirable for the first model of the public described earlier, often wishing to return to the situation prior to when the wrongful act started.156 These remedies are common in public interest litigation and unproblematic from a procedural perspective. Compensation, the most commonly sought form of reparation in international practice,157 is perhaps the most delicate in the context of public interest litigation. As a caveat, it can be questioned whether this is the primary objective of states litigating in the public interest who, as explained earlier, are strategically pursuing

152 International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, November 2001, Supplement No. 10 (A/56/10), Article 30. 153 Ibid. 154 International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, With Commentaries (Yearbook of the International Law Commission II, 2001) p. 88. 155 International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, November 2001, Supplement No. 10 (A/56/10), Article 37 (2). 156 Ibid., Article 35. 157 International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, With Commentaries (Yearbook of the International Law Commission II, 2001) 99.

Public Interest Litigation  61 social change. While the Permanent Court of International Justice (PCIJ) acknowledged that Italy and Japan had a “clear interest”, they lacked any “pecuniary interest” in the matter.158 But if states do request compensation, problems may arise. First, if one state represents collective interests, it may not be the adequate recipient of monetary compensation. It can also be questioned if states litigating for a symbolic injury are “deserving” of compensation. Further, quantifying such compensation – already a challenge for international courts and tribunals159 – would be compounded if considering multiple states. However, because of these reasons, it is doubtful that states acting in the public interest would request compensation unless the beneficiaries of such compensation are a community of individuals within a nation (the first model of the public identified in section 3.2.2). Human rights and international criminal law cases, as well as the recent DRC v. Uganda compensation case before the ICJ, provide good examples.160 Once a court has decided on the specific remedy arising from a violation of a public interest norm, and who should be the recipient of such remedy in cases where injuries are not directly felt by the claimant(s), the binding nature of the judicial decision still remains an issue. Indeed, international courts and tribunals provide that the decisions they render are binding solely on the two litigating parties.161 Critics may therefore question if public interest litigation is worthwhile or appropriate if not binding on a wider public. This was anticipated by the UN Secretariat with respect to the Genocide Convention: it considered that disputes in the public interest “should not be settled by an authority arbitrating between two or more states exclusively, for then its decision would lack any claim to be binding on other states”.162 More specifically, it may be criticised that it is unfair for a decision to bind only two states and not others potentially committing the same violations.163

158 S.S. Wimbledon, Britain et al. v. Germany (1923) PCIJ Series A01, p. 20. 159 Jason Rudall, Compensation for Environmental Damage under International Law (Routledge 2020). 160 The Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06 accessed 18 January 2023; Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Reparations, Judgment, I.C.J. Reports 2022; for human rights cases where compensation was requested and awarded, see Dinah Shelton, Remedies in International Human Rights Law (Oxford University Press 2006) Chapter 9. 161 See, for example, United Nations, Statute of the International Court of Justice, 18 April 1946, Article 59; United Nations, Statute of the International Tribunal for the Law of the Sea, 10 December 1982, Article 33 (2). 162 UN Secretariat, ‘Draft Convention for the Prevention and Punishment of Genocide’, in Hirad Abtahi and Philippa Webb (eds), The Genocide Convention: The Travaux Préparatoires (Martinus Nijhoff Publishers 2008) 251. 163 Human Rights Committee, Daniel Billy et al. v Australia, Views adopted by the Committee under Article 5 (4) of the Optional Protocol, concerning communication No. 3624/2019, CCPR/ C/135/D/3624/2019, 21 July 2022, para 6.3. accessed 18 January 2023.

62  Yusra Suedi and Justine Bendel It can also more generally be argued that it is illogical for a decision to bind only two states when it concerns the public.164 Such arguments are, however, unwarranted. First, when it comes to the general enforcement of judicial decisions, it is evident that a judicial proceeding in itself may not guarantee enforcement, the major hurdle being that of (the lack of) adequate instruments to ensure compliance with the judgment. This is an inevitable feature of international law. However, while bindingness remains important in international dispute settlement, it is not the be-all and end-all of public interest litigation. While a binding decision may understandably be desirable for communities seeking reparations of some kind, public interest litigation, as mentioned earlier, is often considered to still be “worth the litigation effort” and a “success without victory”165 even if no binding decision ensues or the decision does not bind all affected parties. Further, judicial decisions carry authority that is rooted beyond their binding nature. As Zarbiyev notes, “authority experiences in international law are a much more complex phenomenon that cannot be reduced to the power to compel through binding decisions”.166 He also argues that such authority stems from process, superior knowledge and reputation – all of which are present in international courts and tribunals.167 Therefore, the absence of bindingness of a public interest case to a wider community does not detract from the authority that such a decision holds. It may arguably hold greater authority because of the common values that it espouses. This would perhaps partly explain why advisory opinions – increasingly requested for public interest matters, as discussed by Cruz Carillo and Rafaly in this collection168 – have been perceived with authority. Indeed, as ITLOS confirmed in Mauritius/Maldives, judicial determinations made in advisory opinions carry no less weight and authority than those in judgments because they are made with the same rigour and scrutiny by the “principal judicial organ” of the United Nations with competence in matters of international law.169

164 “[I]n the case of a legal action for the protection of a common good, the enforcement aspect may prove doubly discouraging because some common interests may be attained only by the involvement of all actors, so that enforcement against only some of them would not prove sufficient”, Andrea Gattini, ‘Actio Popularis’ (2019) Max Planck Encyclopedias of International Law para 66 accessed 16 January 2023. 165 Florian Jeßberger, Leonie Steinl, ‘Strategic Litigation in International Criminal Justice: Facilitating a View from Within’ (2022) 20 (2) Journal of International Criminal Justice 379 accessed 17 January 2023. 166 Fuad Zarbiyev, ‘Saying Credibly What the Law Is: On Marks of Authority in International Law’ (2018) 9 (2) Journal of International Dispute Settlement 291, 293. 167 Ibid., 299–307. 168 Jurisdictional hurdles are the main reason. 169 Dispute concerning Delimitation of the Maritime Boundary between Mauritius and Maldives in the Indian Ocean, Preliminary Objections, Judgment of 28 January 2021, International Tribunal for the Law of the Sea, para 203.

Public Interest Litigation  63 In this case, despite the fact that the UK was not a party to the ITLOS dispute, and the ICJ delivered a technically non-binding opinion, the UK subsequently agreed to negotiate with Mauritius over the handover of the Chagos Islands.170 *** After having analysed the procedural reservations related to public interest litigation, it is clearer that the reasons for the paucity of public interest cases (in terms of percentage compared to the whole case dockets) are not only conceptual reasons surrounding an understanding of the practice, nor the political reasons surrounding its appropriateness. The procedural accommodation of international courts and tribunals to public interest litigation is also a potential limitation. Indeed, it has been and can be argued that international courts and tribunals are not institutionally ripe for public interest litigation at the moment. Is it enough to adjust current procedural mechanisms, or do new courts have to be developed that are designed with public interest cases in mind? We have indicated here – and the forthcoming chapters in this edited collection demonstrate – that procedural mechanisms are adjustable to a satisfactory degree. Jurisdictional issues have not been an absolute hindrance to public interest litigation. The position of international courts and tribunals has yet to be firmly consolidated with respect to many public interest litigation matters such as the Monetary Gold principle, third-party intervention or remedies. In other areas, adjustments have been made: standing has largely been remodelled to accommodate public interest litigation and participation has this prospect as well. It is therefore submitted that international courts and tribunals can indeed accommodate public interest litigation “to a considerable extent”.171 Indeed, international courts have an interest in staying relevant in the changing international legal landscape, and the more public interest cases are brought before them, the more they will also adapt to them, as a survival mechanism. 3.5 Conclusion In the wake of a growing climate crisis, global pandemics and other global challenges, it has long been suggested that multilateral diplomacy should be reinvigorated.172 So, too, should other means of achieving social change, such as public interest litigation. Indeed, while multilateral initiatives such as new treaties are

170 Patrick Wintour, ‘UK agrees to negotiate with Mauritius over handover of Chagos Islands’ The Guardian (London, 4 November 2022) accessed 18 January 2023. 171 Christian Tams, ‘Individual States as Guardians of Community Interests’ in Ulrich Fastenrath et al., From Bilateralism to Community Interests: Essays in Honour of Bruno Simma (Oxford University Press 2011) 387–388. 172 United Nations, ‘Multilateralism under Attack from All Sides, Secretary-General Tells Conference on Small States, ‘Addressing Old and New Security Challenges’’ (Meetings Coverage and Press Releases, 1 April 2022) accessed 19 January 2023.

64  Yusra Suedi and Justine Bendel still underway,173 multilateralism has arguably been unsatisfactory in successfully protecting global public goods. This has perhaps sparked a growing interest in international courts and tribunals as institutions to catalyse change. The nature of law inherently creates an avenue for public interest litigation, as Kingsbury and Donaldson rightly explain: It is the existence of law that both creates a certain kind of society in its own right, through the practice of seeking law-governed relationships, and allows other communities – or publics – to come into being and assert their interests, by making available certain institutional mechanisms to satisfy public law principles of rationality and rule of law, and by creating rhetorical possibilities for demands that the law respond to the felt needs of a particular public.174 While there are many reservations about the validity of public interest litigation, this chapter sought to identify them and argue that they are, in fact, surmountable. Concepts may be further clarified, procedures may be adjusted and politics unavoidable in international law. Public interest litigation is therefore more than a pipe dream – it is likely to increase in the years to come. Is it the future of international litigation? This might be a stretch in an international legal landscape where bilateral disputes are alive and well. But an increased practice of public interest litigation is a welcome prospect: in general, it is strongly linked with the broader view of what international law is and should be. The idea of “publicness” “includes principles of accessibility, exposure, and consideration”.175 Further, this practice may allow for international law “to progress into a state of ‘maturity’, with a robust judicial function as a key to safeguarding the community’s core values”.176 In so doing, it may be able to fulfil its true promise of universalisation, which, according to Blum, “requires the harnessing of participants, constituencies, stakeholders, sources, and influences into modern international legal processes”.177

173 The international agreement on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction treaty, the plastics pollution treaty and the pandemic treaty are all recent indicators of this. 174 Benedict Kingsbury and Megan Donaldson, ‘From Bilateralism to Publicness in International Law’ in Ulrich Fastenrath et al. (eds, From Bilateralism to Community Interests: Essays in Honour of Bruno Simma (Oxford University Press 2011). 175 Benedict Kingsbury and Nahuel Maisley, ‘Infrastructures and Laws: Publics and Publicness’ (2021) 17 Annual Review of Law and Social Science 353. 176 Gleider Hernández, ‘A Reluctant Guardian: The International Court of Justice and the Concept of 'International Community’ (2013) 83 (1) The British YearBook of International Law 13, 19 accessed 17 January 2023. 177 Gabriella Blum, ‘Bilateralism, Multilateralism, and the Architecture of International Law’ (2008) 49 (2) Harvard International Law Journal 323.

Public Interest Litigation  65 Bibliography Treaties and UN Documents Agreement for the Establishment of the Commission of Small Island States on Climate Change and International Law, 31 October 2021 accessed 17 January 2023. Human Rights Committee, Group of associations for the defence of the rights of disabled and handicapped persons in Italy and Persons signing the communication (on behalf of Disabled and handicapped persons in Italy) v. Italy, Admissibility, Decision, Communication No 163/1984, CCPR/C/21/D/163/1984, 10 April 1984. Human Rights Committee, Daniel Billy et al. v Australia, Views adopted by the Committee under Article 5 (4) of the Optional Protocol, concerning communication No. 3624/2019, CCPR/C/135/D/3624/2019, 21 July 2022 accessed 18 January 2023. International Court of Justice, Practice Direction XII, 30 July 2004 accessed 18 January 2023. International Law Commission, – Draft Articles on Responsibility of States for Internationally Wrongful Acts, Yearbook of the International Law Commission, 2001, vol. II (Part Two), accessed 25 January 2023. – Draft Articles on Responsibility of States for Internationally Wrongful Acts, November 2001, Supplement No. 10 (A/56/10). United Nations, Statute of the International Court of Justice, 18 April 1946. United Nations, Statute of the International Tribunal for the Law of the Sea, 10 December 1982. United Nations Commission on the Rights of the Child, Decision adopted by the CRC under the Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure in Respect of Communication No. 104/2019, CRC/C/88/D/104/2019, 8 October 2021. United Nations General Assembly, – Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, A/RES/60/147, 21 March 2006. – Israeli practices affecting the human rights of the Palestinian people in the Occupied Palestinian Territory, including East Jerusalem, A/RES/77/247, 9 January 2023. United Nations Secretariat, ‘Draft Convention for the Prevention and Punishment of Genocide’, in Abtahi H and Webb P(eds), The Genocide Convention: The Travaux Préparatoires (Martinus Nijhoff Publishers 2008).

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Public Interest Litigation  67 The Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06 accessed 18 January 2023.

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Public Interest Litigation  69 Jeßberger F, Steinl L, ‘Strategic Litigation in International Criminal Justice: Facilitating a View from Within’ (2022) 20 (2) Journal of International Criminal Justice 379 accessed 17 January 2023. Jessup P, A Modern Law of Nations: An Introduction (Macmillan 1948). Kamminga M T, Inter-State Accountability for Violations of Human Rights (University of Pennsylvania Press 1992). Kant I, Metaphysical Elements of Justice 2nd edn (Hackett 1999). Kaul I, Grunberg I, and Stern M, ‘Defining Global Public Goods’ in Kaul I, Grunberg I and Stern M (eds), Global Public Goods: International Cooperation in the 21st Century (OUP 1999). Kingsbury B and Donaldson M, ‘From Bilateralism to Publicness in International Law’ in Fastenrath U et al. (eds), From Bilateralism to Community Interests: Essays in Honour of Bruno Simma (OUP 2011). Kingsbury B, ‘International Courts: Uneven Judicialisation in Global Order’, in Crawford J and Koskenniemi M (eds), The Cambridge Companion to International Law (CUP 2012). Kingsbury B and Maisley N, ‘Infrastructures and Laws: Publics and Publicness’ (2021) 17 Annual Review of Law and Social Science 353. Komori T and Wellens K (eds), Public Interest Rules of International Law: Towards Effective Implementation (Routledge 2009). Kukathas C, ‘Political Community’, in Kukathas C, The Liberal Archipelago: A Theory of Diversity and Freedom (OUP 2003). Leuenberger C, ‘The Rhetoric of Maps: International Law as a Discursive Tool in Visual Arguments’ (2013) 7 (1) The Law and Ethics of Human Rights 73. Locke J, Two Treatises of Government (York University 1823) available at accessed 18 January 2023. Longobardo M, ‘The Standing of Indirectly Injured States in the Litigation of Community Interests before the ICJ’ (2021) 24 (5) International Community Law Review 476 accessed 17 January 2023. Madsen M R, Cebulak P and Wiebuch M, ‘Backlash Against International Courts: Explaining the Forms and Patterns of Resistance to International Courts’ (2018) 14 (2) International Journal of Law in Context 197. Mao X, ‘Public-Interest Litigation Before the International Court of Justice: Comment on The Gambia v. Myanmar Case’ (2022) 21 (3) Chinese Journal of International Law 589. Marek K, ‘Criminalising State Responsibility’ in Provost R (ed), State Responsibility in International Law (Routledge 2002) 481. Marek K, ‘Criminalising State Responsibility’ (1978–1979) 14 Revue belge de droit international 460. McGarry B, Intervening in International Justice: Third States Before Courts and Tribunals (CUP 2023). McGarry B and Suedi Y, ‘Judicial Reasoning and Non-State Participation Before Inter-State Courts and Tribunals’ (2021) 21 (1) The Law & Practice of International Courts and Tribunals 123. McHarg A, ‘Reconciling Human Rights and the Public Interest: Conceptual Problems and Doctrinal Uncertainty in the Jurisprudence of the European Court of Human Rights’ (1999) 62 (5) The Modern Law Review 671. McLagan M, ‘Human Rights, Testimony, and Transnational Publicity’ (2003) 2 (1) The Scholar and Feminist Online accessed 17 January 2023.

70  Yusra Suedi and Justine Bendel Meguro M, ‘Litigating Climate Change Through International Law: Obligations Strategy and Rights Strategy’ (2020) 33 (4) Leiden Journal of International Law 933. Meron T, The Humanisation of International Law (Martinus Nijhoff Publishers 2006). Ministerio de Relaciones Exteriores, ‘Chile y Colombia realizan inédita consulta a la Corte Interamericana de Derechos Humanos sobre emergencia climática’ (9 January 2023) accessed 25 January 2023. Mollengarden Z and Zamir N, ‘The Monetary Gold Principle: Back to Basics’ (2021) 115 (1) American Journal of International Law 41. Morgera E, ‘Bilateralism at the Service of Community Interests? Non-Judicial Enforcement of Global Public Goods in the Context of Global Environmental Law’ (2012) 23 (3) European Journal of International Law 743. Nollkaemper A, ‘International Adjudication of Global Public Goods: The Intersection of Substance and Procedure’ (2012) 23 (3) European Journal of International Law 769. O’Hara C, ‘Consensus Decision-Making and Democratic Discourse in the General Agreement on Tariffs and Trade 1947 and World Trade Organisation’ (2021) 9 (1) London Review of International Law 37 accessed 17 January 2023. Oxford English Dictionary, ‘Interest’ accessed 19 January 2023. Pauwelyn J, ‘A Typology of Multilateral Treaty Obligations: Are WTO Obligations Bilateral or Collective in Nature?’ (2003) 14 (5) European Journal of International Law 907. Peel J, ‘Issues in Climate Change Litigation’ (2011) 5 (1) Carbon & Climate Law Review 15. Petersman M-C, When Environmental Protection and Human Rights Collide: The Politics of Conflict Management by Regional Courts (CUP 2022). Proulx V-J, ‘The Marshall Islands Judgment and Multilateral Disputes at the World Court: Whither Access to International Justice?’ (2017) 111 American Journal of International Law Unbound 96. Quintana J, Litigation at the International Court of Justice (Brill/Nijhoff Publishers 2015) accessed 18 January 2023. Rajagopal B, International Law from Below: Development, Social Movements, and Third World Resistance (CUP 2003). Ramsden M and Gledhill K, ‘Defining Strategic Litigation’ (2019) 4 Civil Justice Quarterly 407. Ramsden M, ‘Strategic Litigation before the International Court of Justice: Evaluating Impact in the Campaign for Rohingya Rights’ (2022) 33 (2) European Journal of International Law 441 accessed 17 January 2023. Reiss J, ‘Public Goods’ (Stanford Encyclopedia of Philosophy, 2021) accessed 18 January 2023. Root E, ‘The Outlook for International Law’ (1916) 10 (1) American Journal of International Law 1. Rudall J, Compensation for Environmental Damage Under International Law (Routledge 2020). Scelle G, Précis de droit des gens (Recueil Sirey 1932). Scharf M P, ‘Earned Sovereignty: Juridical Underpinnings’ (2003) 31 Denver Journal of International Law and Policy 373. Shaw M, International Law (6th edn, CUP 2008).

Public Interest Litigation  71 Shelton D, Remedies in International Human Rights Law (OUP 2006). Simma B, ‘From Bilateralism to Community Interest in International Law’ (1994) 250 Collected Courses of the Hague Academy of International Law 234. Simma B, ‘Bilateralism and Community Interest in the Law of State Responsibility’, in Dinstein Y et al. (eds), International Law at the Time of Perplexity, Essays in Honour of Shabtai Rosenne (Martinus Nijhoff Publishers 1989). Spijkers O, ‘Global Values in the United Nations Charter’ (2012) 59 (3) Netherlands International Law Review 361. Spijkers O, ‘Pursuing Climate Justice Through Public Interest Litigation: The Urgenda Case’ (Völkerrechtsblog, 29 April 2020) accessed 16 January 2023. Sterio M, ‘The Kosovar Declaration of Independence: ‘Botching the Balkans’ or Respecting International Law?’ (2009) 37 Georgia Journal of International and Comparative Law 267. Suedi Y, ‘Litigating Climate Change Before the Committee on the Rights of the Child in Sacchi v Argentina et al.: Breaking New Ground?’ (2023) Nordic Journal of Human Rights accessed 18 January 2023. Tams  C, ‘Individual States as Guardians of Community Interests’ in Fastenrath U et al., From Bilateralism to Community Interests: Essays in Honour of Bruno Simma (OUP2011). Tams C and Tzanakopoulos A, ‘Barcelona Traction at 40: The ICJ as an Agent of Legal Development’ (2010) 23 Leiden Journal of International Law 781. Thin S, ‘Community Interest and the International Public Legal Order’ (2021) 68 Netherlands International Law Review 35. Tomuschat C, ‘Secession and Self-Determination’, in Kohen M (ed), Secession: International Law Perspectives (CUP 2006). Tuckness A, ‘Locke’s Political Philosophy’ (Stanford Encyclopedia of Philosophy, 6 October 2020) accessed 16 January 2023. United Nations, ‘Multilateralism under Attack from All Sides, Secretary-General Tells Conference on Small States, “Addressing Old and New Security Challenges”’ (Meetings Coverage and Press Releases, 1 April 2022). accessed 19 January 2023. United Kingdom of Great Britain and Northern Ireland, ‘Declarations recognising the jurisdiction of the Court as compulsory’ (International Court of Justice, 22 February 2017) accessed 17 January 2023. Urs P, ‘Obligations Erga Omnes and the Question of Standing Before the International Court of Justice’ (2021) 34 (2) Leiden Journal of International Law 505. Valencia-Ospina E, ‘Court Clarification: Letters to the Editor’ (International Herald Tribune, New York Times, 15 November 1995. accessed 18 January 2023. Vanuatu ICJ Initiative, ‘The Republic of Vanuatu’ accessed 17 January 2023. Venzke I, ‘Public Interests in the International Court of Justice—A Comparison Between Nuclear Arms Race (2016) and South West Africa (1966)’ (2017) 111 American Journal of International Law Unbound 68. Waldron J, ‘Can There Be a Democratic Jurisprudence?’ (2009) 58 Emory Law Journal 675. Waldron J ‘The Principle of Proximity’ (2011) NYU School of Law, Public Law Research Paper No. 11-08 accessed 16 January 2023.

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Part II

Public Interest Litigation before the International Court of Justice



4

Third-Party Intervention before the International Court of Justice A Tool for Litigation in the Public Interest? Craig Eggett and Sarah Thin

4.1 Introduction International adjudication has traditionally followed a particular pattern. International courts and tribunals would settle bilateral disputes between pairs of states, acting as neutral arbiters between competing state interests.1 The ICJ is no exception to this trend. This has been conducive towards the development of certain kinds of procedures: bilateral, adversarial and focused upon the interests of the states that are party to the case in question.2 But what of public interests? This traditional format has left rather little room for the airing of issues related to interests beyond the two parties. Even when such issues are raised, the adversarial nature of the proceedings means that, in most cases, it is often left to the original state parties to make arguments and present evidence on behalf of the broader community. Despite this traditional model, we do have tools at our disposal to aid the integration of public interest issues within international adjudication. This chapter presents one such tool in particular: third-party intervention before the ICJ.3 Although currently under-utilised, third-party intervention holds the potential to open up cases before the ICJ and create space and access for discussions relating to the international public interest. It would facilitate the involvement of third states in a more targeted and limited manner to protect interests that are held by the

1 Armin von Bogdandy and Ingo Venzke, In Whose Name? A Public Law Theory of International Adjudication (Oxford University Press 2014) 1; Paolo Palchetti, ‘Opening the International Court of Justice to Third States: Intervention and Beyond’ (2002) 6 Max Planck Yearbook of United Nations Law 139, 175. 2  Christine Chinkin, Third Parties in International Law (Oxford University Press 1993) 147. 3 As explained in section 4.3, the ICJ Statute sets out two possibilities for such third-party intervention. Article 62 allows for intervention on the basis of a general legal interest, while Article 63 permits intervention on the basis of membership of a treaty. It is Article 62 that is the primary focus of this chapter. See, United Nations, Statute of the International Court of Justice, 18 April 1946, Articles 62 and 63. DOI:  10.4324/9781003433460-6

76  Craig Eggett and Sarah Thin international community more broadly, while maintaining the equality of parties to bilateral dispute settlement proceedings.4 Adapting traditional, bilateral structures to provide for broader interests is never easy. Existing practices and procedures have developed and evolved within a paradigm in which individual state interests were very much front and centre. As such, there are a number of obstacles to greater and more effective use of third-party intervention. These obstacles are arguably part of the reason that this tool has thus far been so rarely used. They range from uncertainty over the form and criteria for intervention to compatibility with existing procedural rules and principles. Nonetheless, these obstacles are not insurmountable. This chapter presents thirdparty intervention before the ICJ as a means by which broader interests may be integrated within international adjudicative systems – a tool for litigation in the international public interest. It begins by explaining how the term ‘public interest’ is to be understood in international law and, as such, how it may be applied in the context of international adjudication (see section 4.2). The following section sets out the framework for third-party intervention before the ICJ (section 4.3). The greater part of this chapter is dedicated to analysing and addressing the various obstacles to the use of third-party intervention as a tool in the public interest (section 4.4). Section 4.5 presents some concluding remarks. 4.2 Public Interest in International Law To begin, as noted earlier, a brief clarification is needed on the nature and definition of ‘public interest’ at the international level. Even in a domestic context, this can be a difficult concept to define.5 At a basic level, we take the term ‘public interest’ to mean a common interest (rather than the sum of individuals), shared by all subjects of a particular legal system, which transcends their individual interests. This approach to the public interest is often associated with the notion of ‘higher values’.6 It reflects the idea that there are some values that ‘are protected for the benefit of society (the public), even though this benefit may be different from the mere sum of the individual interests of the members of society’.7 Turning to the international

4 The ongoing case between Ukraine and Russia has seen numerous interventions by third states. These interventions are based on membership to the Genocide Convention and so have been lodged under Article 63 ICJ Statute. Nevertheless, it could certainly be argued that these interventions are based on the desire of third states to protect interests held by the international community. See, Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation) – Intervention, I.C.J. Reports 2022, available at: . 5 Of a discussion spanning decades, see e.g. C.W. Cassinelli, ‘Some Reflections on the Concept of the Public Interest’ (1958) 69 (1) Ethics 48; William D. Zarecor, ‘The Public Interest and Political Theory’ (1959) 69 Ethics 277; Pavel Mates and Michal Barton, ‘Public versus Private Interest – Can the Boundaries Be Legally Defined?’ (2011) Czech Yearbook of International Law 172. 6 Pavel Mates and Michal Barton, ‘Public versus Private Interest – Can the Boundaries Be Legally Defined?’ (2011) Czech Yearbook of International Law 172. 7 Ibid., 179–180.

Third-Party Intervention before the ICJ  77 level, the closest we have to such a concept can be seen in the form of the community interest or the interest of the international community. The community interest is a common interest in that it is deemed to be shared by all subjects of the international legal order,8 but it transcends (and therefore does not necessarily always coincide with) the individual rights of those subjects.9 The ‘doctrinal expressions’10 of the community interest, such as obligations erga omnes and peremptory norms, have been referred to as ‘public interest norms’11 in international law. Indeed, they appear to serve public purposes, from imposing public-law-type limitations on the freedom of states to enter into legal agreements12 to the public or decentralised enforcement of obligations in the interest of the international community (or public) as a whole.13 While there are clear links between such norms and the international public interest, it should be reiterated that these are not one and the same. The public interest is given legal expression and protection by such norms. While such public interest norms are the vectors through which the international public interest takes legal effect, this interest extends beyond such norms. Such norms reflect the strongest or most pressing community or public interests, but the public interest as a whole covers other areas, from human rights to the protection of the environment and beyond. The main difficulty that remains is the identification of the content of the community interest, or international public interest. Following the approach that has been taken with regard to peremptory norms, it appears that the identification of such interests is dependent on recognition by states.14 The threshold for recognition   8 See e.g. Barcelona Traction, Light and Power Company, Limited, Judgment, I.C.J. Reports 1970, paras 33–34; United Nations, Vienna Convention on the Law of Treaties, 23 May 1969, United Nations, Treaty Series, vol. 1155, Article 53.   9 Sarah Thin, ‘Community Interest and the International Public Legal Order’ (2021) 68 Netherlands International Law Review 35, 44. 10 Bruno Simma, ‘From Bilateralism to Community Interest in International Law’ (1994) 250 Recueil des Cours 217, 285. 11 Bernhard H. Oxman, ‘The International Commons, the International Public Interest and New Modes of International Lawmaking’ in Jost Delbrück and Ursula Heinz (eds), New Trends in International Lawmaking (Ducker & Humblot 1997); Eibe Riedel, ‘International Environmental Law – A Law to Serve the Public Interest? An Analysis of the Scope of the Binding Effect of Basic Principles (Public Interest Norms)’ in Jost Delbrück and Ursula Heinz (eds), New Trends in International Lawmaking – International ‘Legislation’ in the Public Interest (Duncker & Humblot 1997). 12 United Nations, Vienna Convention on the Law of Treaties, 23 May 1969, United Nations, Treaty Series, vol. 1155, Article 53. 13 International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, With Commentaries (Yearbook of the International Law Commission II, 2001), Article 48 (1) (b). 14 See International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, With Commentaries (Yearbook of the International Law Commission II, 2001) Article 53; Santiago Villalpando, L’émergence de la communauté internationale dans la responsabilité des Etats (Graduate Institute Publications 2005) 77; Dire Tladi, ‘Second Report on Jus Cogens’ in Report of the ILC on the work of its 69th session, 1 May–2 June and 3 July–4 August 2017, UN Doc A/CN.4/706, para 77. For ICJ cases applying such a state-centred approach, see e.g. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),

78  Craig Eggett and Sarah Thin of such public interest norms appears to be rather high. The recognition of such interests can still be seen in the statements and practice of states in taking action to protect such values or ‘international public goods’,15 whether through international law-making or non-legal forms of international relations. In sum, the international public interest is a common interest, shared and recognised by all states but which transcends their individual interests. The strongest aspects of this interest are protected by special ‘public interest norms’ in the form of peremptory norms and obligations erga omnes, but the interest itself extends further into a variety of areas of international protection. 4.3 Third-Party Intervention before the ICJ In essence, third-party intervention allows a third state to take part in a case despite not being a party to that case.16 It creates an opportunity for interests external to the bilateral, inter-party dispute to be heard and represented during the proceedings. While the focus of this chapter is on the procedures and practice of the ICJ, it should be noted that other dispute settlement regimes also provide for third-party intervention in contentious cases. Many of the observations made in the following paragraphs in relation to the ICJ framework may hold true for other mechanisms. Some reference will be made to other dispute settlement bodies, yet a detailed discussion of these regimes is beyond the scope of this chapter. The ICJ Statute provides for two ways in which states may intervene in contentious proceedings. These are set out in Article 63 and Article 62 of the Statute. Article 63 provides for intervention ‘by right’, but it is limited in nature and scope. It provides that ‘Whenever the construction of a convention to which states other than those concerned in the case are parties is in question … [each of the other states parties] has the right to intervene in the proceedings’.17 It is understood that this right to intervene extends only insofar as the construction of the convention in question, reflecting the state’s interest in having a say in how it is interpreted.18 Article 62, by contrast, has a much broader scope, but only grants a faculty to request intervention, rather than a right to intervene. Under this Article, states may request to intervene if they consider that they have ‘an interest of a legal nature’.19

Merits, Judgment, I.C.J. Reports 1986, para 190; Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports 2012, para 99. 15 See Nico Krisch, ‘The Decay of Consent: International Law in an Age of Global Public Goods’ (2014) 108 American Journal of International Law 1; Daniel Bodansky, ‘What’s in a Concept? Global Public Goods, International Law and Legitimacy’ (2012) 23 European Journal of International Law 651. 16 P. Chandrasekhara Rao and Philippe Gautier, The International Tribunal for the Law of the Sea: Law, Practice and Procedure (Edward Elgar 2018) para 4.209. 17 United Nations, Statute of the International Court of Justice, 18 April 1946, Article 63. 18 Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Application to Intervene, Judgment, I.C.J. Reports 1981, para 26; Whaling in the Antarctic (Australia v. Japan), Declaration of Intervention of New Zealand, Order of 6 February 2013, I.C.J. Reports 2013, para 2. 19 United Nations, Statute of the International Court of Justice, 18 April 1946, Article 62.

Third-Party Intervention before the ICJ  79 While clearly distinct means of intervention by third states, there is considerable overlap between the mechanisms provided for by Articles 62 and 63; it is indeed possible for a state to frame its attempted intervention under both provisions.20 Under the Statute for the International Tribunal for the Law of the Sea (ITLOS), Articles 31 and 32 appear to provide functionally equivalent procedures for intervention.21 It is, however, unclear how the Tribunal will interpret and apply these rules in practice as it is yet to hear an application to intervene.22 The World Trade Organization (WTO) dispute settlement regime provides for a variety of different means of third party participation in contentious proceedings. The most relevant provision for present purposes is Article 10 (2), which provides that: Any Member having a substantial interest in a matter before a panel and having notified its interest to the DSB … shall have an opportunity to be heard by the panel and to make written submissions to the panel.23 The substantial interest requirement is generally understood to be a relatively low threshold.24 Carmody has even gone so far as to say that it has ‘served as no standard at all’.25 Partly as a result of this, there has been a ‘proliferation of third party participation’26 at the WTO. Following their comprehensive study published in 2006, Busch and Reinhardt surmise that ‘third parties participate in about threefifths of all cases and tend to outnumber the main parties by a sizable margin’.27 It is clear that ‘[t]he participation of third parties is not trivial. On the contrary, such participation is increasingly viewed as critical to the WTO’s function’.28 The attitude and function of third-party intervention at the WTO is inherently different to bodies such as the ICJ and ITLOS. It has been noted that ‘[t]here is great built-in pressure to permit intervention’ at the WTO because of the fact that ‘international trade is inherently about economic interdependence, this factor raises an added concern [and thus] [a]ny change in the terms of trade is seen as affecting the entire

20  See, for example, Poland’s intervention in SS ‘Wimbledon’ [1923] PCIJ Series A01. 21 UN General Assembly, Statute of the International Tribunal for the Law of the Sea (Annex VI of the United Nations Convention on the Law of the Sea), Articles 31 and 32. 22  P. Chandrasekhara Rao and Philippe Gautier, The International Tribunal for the Law of the Sea: Law, Practice and Procedure (Edward Elgar 2018) para 4.212. 23 World Trade Organization, Dispute Settlement Rules: Understanding on Rules and Procedures Governing the Settlement of Disputes, Marrakesh Agreement Establishing the World Trade Organisation, Annex 2, 15 April 1994, Article 10 (2). 24 Marc L. Busch and Eric Reinhardt, ‘Three’s a Crowd: Third Parties and WTO Dispute Settlement’ (2006) 58 World Politics 446, 453. 25  Chi Carmody, ‘Of Substantial Interest: Third Parties under GATT’ (1997) 18 Michigan Journal of International Law 615, 618–619. 26  Ibid., 617. 27  Marc L. Busch and Eric Reinhardt, ‘Three’s a Crowd: Third Parties and WTO Dispute Settlement’ (2006) 58 World Politics 446, 446. 28 Ibid., 446.

80  Craig Eggett and Sarah Thin global economy, not just the parties to a dispute’.29 The regime relies on a ‘cooperative multilateral equilibrium’30 and the representation of third-party interest is essential to make sure this is not unbalanced by overly bilateral dispute settlement procedures. This ‘multilateral equilibrium’ reflects a more inquisitorial, objective approach to adjudication than the bilateral model. By taking a ‘broader perspective’, the WTO model serves ‘the wider interests of the membership as a whole’ rather than those of individual members.31 The focus is, therefore, placed more centrally on compliance with the codes of conduct contained in the covered agreements. This model is in contrast to the envisaged potential of third-party intervention before the ICJ. The broader application of third-party intervention in the public interest at the ICJ has the potential to facilitate the broader involvement of states to act to protect broader interests, not limited to specific treaties and regimes. As such, the main focus of this chapter will be intervention under Article 62. This is not to say that interventions in the public interest are not possible on the basis of Article 63.32 However, the legal basis of intervention under this provision is the intervening state’s membership to a treaty that will be interpreted and applied in the case. Such a treaty may of course seek to further and protect the international public interest but this character does not form the basis of the intervention under Article 63. Many of the observations made regarding (obstacles to) intervention in the public interest may be relevant for both Articles 62 and 63, yet intervention under Article 62 warrants greater attention due to its greater potential to allow for such interventions. Third-party intervention has not been a common occurrence before the ICJ. While the ICJ has heard 18 applications to intervene in 13 different cases,33 only

29 Chi Carmody, ‘Of Substantial Interest: Third Parties under GATT’ (1997) 18 Michigan Journal of International Law 615, 621. 30  Marc L. Busch and Eric Reinhardt, ‘Three’s a Crowd: Third Parties and WTO Dispute Settlement’ (2006) 58 World Politics 446, 446–447. 31 Ibid., 447. 32  For example, Canada and the Netherlands expressed an intention to intervene in the ongoing Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar) case. Clear arguments could be made here regarding intervention in the public interest, yet any such intervention would be grounded in a state’s membership to the convention at stake. See, also, the Article 63 interventions filed in the ongoing case Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation) – Intervention, I.C.J. Reports 2022, available at: . 33 These numbers include the joined cases of Nuclear Tests (Australia v. France), Application to Intervene, Order of 20 December 1974, I.C.J. Reports 1974 and Nuclear Tests (New Zealand v. France), Application to Intervene, Order of 20 December 1974, I.C.J. Reports 1974 and the separate applications of Fiji to intervene in each. The remainder of the cases and applications are Haya de la Torre Case, Judgment of June 13th, 1951: I.C.J . Reports 1951; Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Application to Intervene, Judgment, I.C.J. Reports 1981; Continental Shelf (Libyan Arab Jamahiriya/Malta), Application to Intervene, Judgment, I.C.J. Reports 1984; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Declaration of Intervention, Order of 4 October 1984, I.C.J. Reports 1984; Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), Application to Intervene, Judgment, I.C.J. Reports 1990;

Third-Party Intervention before the ICJ  81 five have been (partially)34 successful, three of which were Article 62 cases.35 There are a number of reasons why this may be. Despite the obvious advantages of such procedures, intervention is nevertheless ‘a delicate tool’.36 The other side of the coin is that states are keen to preserve their party autonomy.37 As Chandrasekhara Rao and Gautier observe, ‘[t]he parties involved in a bilateral dispute will not necessarily welcome the entry in the proceedings of a third entity which, in principle, will express its own views and defend its own interests’.38 There is thus a ‘tension between preserving party autonomy in the integrity of the dispute on the one hand, and allowing third parties influence in the harmonious development of international law on the other’.39 This tension goes hand-in-hand with another, namely the disconnect between the bilateral nature of international judicial procedure and the recognition that there are wider (legal) interests.40 International cases inherently engage a wide range of interests. At least in the sense that the entire community has an interest in the international rule of law, ‘all members of the international community share an interest in the outcome of these claims’.41 At the same time, ‘international adjudication and arbitration assume that disputes can be presented

Land and Maritime Boundary between Cameroon and Nigeria, Application to Intervene, Order of 21 October 1999, I.C.J. Reports 1999; Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) Case, I.C.J. Reports 1995; Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Application for Permission to Intervene, Judgment, I.C.J. Reports 2001; Territorial and Maritime Dispute (Nicaragua v. Colombia), Application for Permission to Intervene, Judgment, I.C.J. Reports 2011; Jurisdictional Immunities of the State (Germany v. Italy), Application for Permission to Intervene, Order of 4 July 2011, I.C.J. Reports 2011; Whaling in the Antarctic (Australia v. Japan), Declaration of Intervention of New Zealand, Order of 6 February 2013, I.C.J. Reports 2013. 34 ‘Partial’ in the sense that the Court has allowed the state to intervene but has limited the scope of intervention in a more restrictive way that envisaged by the intervening state’s application. 35  Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), Application to Intervene, Judgment, I.C.J. Reports 1990 (Nicaragua); Land and Maritime Boundary between Cameroon and Nigeria, Application to Intervene, Order of 21 October 1999, I.C.J. Reports 1999 (Equatorial Guinea); Jurisdictional Immunities of the State (Germany v. Italy), Application for Permission to Intervene, Order of 4 July 2011, I.C.J. Reports 2011 (Greece); and two under Article 63: Haya de la Torre Case, Judgment of June 13th, 1951: I.C.J . Reports 1951 (Cuba); Whaling in the Antarctic (Australia v. Japan), Declaration of Intervention of New Zealand, Order of 6 February 2013, I.C.J. Reports 2013 (New Zealand). 36  P. Chandrasekhara Rao and Philippe Gautier, The International Tribunal for the Law of the Sea: Law, Practice and Procedure (Edward Elgar 2018) para 4.210. 37  Christine Chinkin, Third Parties in International Law (Oxford University Press 1993) 2; Penelope Ridings, ‘The Intervention Procedure in Whaling in the Antarctic: A Threat to Bilateralism?’ (2014) 32 Australian Yearbook of International Law 97, 109. 38 P. Chandrasekhara Rao and Philippe Gautier, The International Tribunal for the Law of the Sea: Law, Practice and Procedure (Edward Elgar 2018) para 4.210. 39 Penelope Ridings, ‘The Intervention Procedure in Whaling in the Antarctic: A Threat to Bilateralism?’ (2014) 32 Australian Yearbook of International Law 97, 109 40 Christine Chinkin, Third Parties in International Law (Oxford University Press 1993) 147. 41 Ibid., 147.

82  Craig Eggett and Sarah Thin in a bilateral framework’.42 In this sense, intervention can be seen almost as a palliative to the strict bilateralism of classical dispute settlement: ‘Intervention is a side-effect of a system of international justice which is traditionally organised as a debate between conflicting views presented by two parties, the applicant and the respondent’.43 More frequent interventions on the basis of public interests would be an important development in the legal protection of such interests and the development of norms that seek to protect them. These public interest interventions would allow for the limited and targeted participation of states in relation to issues that are recognised to be of considerable importance to the international community as a whole. Greater participation would facilitate the development of public interest norms and their more robust protection in law; intervention in the public interest would become part of the toolbox of public interest litigation in international law, encouraging further participation in proceedings that deal with such interests. 4.4 Obstacles and Challenges to Intervention in the Public Interest The tensions set out here are at the heart of many of the perceived barriers to more common and widespread use of third-party intervention. It remains unclear how third-party intervention can be applied in the context of the international public interest. In particular, there is a lack of clarity regarding the nature and threshold of the interest required and the nature of the intervention itself. Further, intervention in the public interest raises practical issues as regards the application of procedural rules and principles. This section discusses these issues and how they can be overcome. 4.4.1  Nature of the Interest Required

There is a degree of uncertainty as to the conditions that must be fulfilled in order to intervene as a third state. Under Article 62, a third state wishing to intervene must demonstrate in its application to intervene44 both that it has an ‘interest of a legal nature’45 and that this interest ‘may be affected by the decision’ in the case.46 The state must also provide ‘the precise object of the intervention’.47 This purpose

42 Ibid. 43 Philippe Gautier, ‘Standing of NGOs and Third-Party Intervention before the International Tribunal for the Law of the Sea’ (2014) 47 Revue Belge de Droit International 205, 216. 44 International Court of Justice, Rules of Court, 14 April 1978, Article 81 sets out the format and time limits for the Application to Intervene. 45 United Nations, Statute of the International Court of Justice, 18 April 1946, Article 62; International Court of Justice, Rules of Court, 14 April 1978, Article 81 (2) (a). See South West Africa, Second Phase, Judgment, I.C.J. Reports 1966, paras 49–51 for further discussion on the definition of a legal interest. 46 United Nations, Statute of the International Court of Justice, 18 April 1946, Article 62; International Court of Justice, Rules of Court, 14 April 1978, Article 81 (2) (a). 47 International Court of Justice, Rules of Court, 14 April 1978, Article 81 (2) (b). This was emphasised by the Court in Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Application to Intervene,

Third-Party Intervention before the ICJ  83 may not be simply to further inform or assist the Court but must relate to the legal interest that is the basis for the application to intervene.48 The legal interest is key as it limits and defines the scope of the intervention itself, i.e. what kinds of observations the intervening state is allowed to make, and with regard to what subject matter.49 In contrast, intervention on the basis of Article 63 (sometimes referred to as ‘intervention as of right’50) raises fewer difficulties for an intervening state. An intervening state must submit a declaration under Article 82 of the Rules of Court.51 In this, it must demonstrate that, in accordance with Article 63, it is a party to a convention whose construction is at issue in the case at hand,52 and that the object of the intervention is limited to making representations regarding the interpretation of that convention and not on other substantive issues in the case itself.53 The Court has emphasised that ‘the state seeking to intervene confines its intervention to the point of interpretation which is in issue in the proceedings, and that this right does not extend to general intervention in the case’.54 It is often commented that the conditions for third-party intervention set a rather high bar.55 While it is questionable if this is true for Article 63 intervention, it

Judgment, I.C.J. Reports 1981, paras 11 and 14; see further Christine Chinkin, Third Parties in International Law (Oxford University Press 1993) 166–170. 48 See Continental Shelf (Libyan Arab Jamahiriya/Malta), Application to Intervene, Judgment, I.C.J. Reports 1984, para 40; Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), Application to Intervene, Judgment, I.C.J. Reports 1990, paras 89–90; Christine Chinkin, Third Parties in International Law (Oxford University Press 1993) 171. 49 International Court of Justice, Rules of Court, 14 April 1978, Article 85 (3). See also: Beatrice I. Bonafe, ‘Interests of a Legal Nature Justifying Intervention before the ICJ’ (2012) 25 Leiden Journal of International Law 739, 750; see Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), Application to Intervene, Judgment, I.C.J. Reports 1990, paras 58 and 102–103. 50  See e.g. D.W. Greig, ‘Third Party Rights and Intervention Before the International Court’ (1992) 32 Virginia Journal of International Law 285, 306; Whaling in the Antarctic (Australia v. Japan), Declaration of Intervention of New Zealand, Order of 6 February 2013, I.C.J. Reports 2013, para 2; Nuclear Tests (New Zealand v. France), Application for Permission to Intervene Under the Terms of Article 62 of the Statute, Submitted by the Government of Australia, I.C.J. Reports 1995, para 25; Whaling in the Antarctic (Australia v. Japan), Declaration of Intervention of New Zealand, Order of 6 February 2013, Separate Opinion of Judge Cançado Trindade, I.C.J. Reports 2013, para 24. 51 International Court of Justice, Rules of Court, 14 April 1978, Article 82. This Article sets out the requirements, including time limits, for such a Declaration. 52  United Nations, Statute of the International Court of Justice, 18 April 1946, Article 63 (1). 53  Haya de la Torre Case, Judgment of June 13th, 1951: I.C.J . Reports 1951, p. 77; Whaling in the Antarctic (Australia v. Japan), Declaration of Intervention of New Zealand, Order of 6 February 2013, I.C.J. Reports 2013, para 2. 54 Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Application to Intervene, Judgment, I.C.J. Reports 1981, para 26; Whaling in the Antarctic (Australia v. Japan), Declaration of Intervention of New Zealand, Order of 6 February 2013, I.C.J. Reports 2013, para 2. This is also underlined in the Rules of Court: International Court of Justice, Rules of Court, 14 April 1978, Article 86 (2): ‘The intervening state shall be entitled, in the course of the oral proceedings, to submit its observations with respect to the subject-matter of the intervention’. 55  See e.g. Beatrice I. Bonafe, ‘Interests of a Legal Nature Justifying Intervention before the ICJ’ (2012) 25 Leiden Journal of International Law 739, 747; Christine Chinkin, Third Parties in International Law (Oxford University Press 1993) 275; Penelope Ridings, ‘The Intervention Procedure

84  Craig Eggett and Sarah Thin would seem accurate with regard to Article 62, given the low success-to-application ratio.56 A central question here is whether Article 62 would allow for intervention on the basis of a community or public interest, as opposed to an individual one. Following the ICJ’s dictum in Barcelona Traction, ‘all states can be held to have a legal interest’57 in the fulfilment of certain obligations, known as ‘obligations erga omnes’.58 Such obligations are commonly understood to be at the heart of what we understand as the international public interest.59 The question, then, is whether such interests would be sufficient to constitute a ‘legal interest’ in the sense of Article 62. It should be borne in mind here that the threshold of interest for such interventions cannot be directly compared with the requirements for standing as a party to a case as such. As explained in the following paragraph, the nature of such interventions is fundamentally different to full participation in proceedings as a party. Becoming party to a case requires the establishment of a jurisdictional link and the fulfilment of conditions of admissibility. Yet, it would seem to logically follow that a state that has an interest sufficient to generate a right to invoke responsibility would also be capable of intervening in a case as a third party, as intervention is a more limited form of participation in proceedings. That such an interest is sufficient for intervention under Article 62 was indeed argued by several states in the 1995 reprisal of the Nuclear Tests cases, in which New Zealand attempted to bring a case against France with regard to the latter’s nuclear testing.60 Five other states (Australia, the Solomon Islands, the Marshall Islands, Micronesia and Samoa) made applications to intervene in the case. Australia argued that since, according to New Zealand’s submissions, the rights involved in the case relate to obligations erga omnes, ‘it necessarily follows that the New Zealand claim against France puts in issue the rights of all states, including Australia’.61 They accepted that the dispute itself was a bilateral one between New Zealand and France, but submitted that it remains the case that in determining the merits of the New Zealand claim, the court would necessarily be required to pronounce on the rights of all

in Whaling in the Antarctic: A Threat to Bilateralism?’ (2014) 32 Australian Yearbook of International Law 97, 110–111; Paolo Palchetti, ‘Opening the International Court of Justice to Third States: Intervention and Beyond’ (2002) 6 Max Planck Yearbook of United Nations Law 139, 180. 56  Of 11 applications under Article 62, only three have been successful, while of three applications under Article 63, two have been successful. 57  Barcelona Traction, Light and Power Company, Limited, Judgment, I.C.J. Reports 1970, para 33. 58 Ibid. 59 Santiago Villalpando, ‘The Legal Dimension of the International Community: How Community Interests Are Protected in International Law’ (2010) 21 European Journal of International Law 387, 387. 60  Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) Case, I.C.J. Reports 1995. 61 Nuclear Tests (New Zealand v. France), Application for Permission to Intervene Under the Terms of Article 62 of the Statute, Submitted by the Government of Australia, I.C.J. Reports 1995, paras 15 ff, especially para 18 (emphasis in original).

Third-Party Intervention before the ICJ  85 states. The legal interests of every member of the international community, even of those states not bound by the judgement, are thus ‘affected’ or ‘en cause’ within the meaning of Article 62 of the Statute.62 While Australia accepted that, in practice, not every state will intervene in such cases, and presented itself, as a state in the South Pacific, as having ‘a particular interest in the observance’ of the relevant obligations, it was submitted that this ‘special interest’ was not necessary for the purposes of intervention under Article 62.63 The other governments made similar submissions, claiming that the obligations at issue were erga omnes in nature and therefore that they had a legal interest on that basis, as required by Article 62.64 They argued ‘[t]hat all states share this legal interest does not prevent it from being a genuine legal interest of each of those states, one which they are entitled to protect before the court by steps taken in conformity with the Statute’.65 Unfortunately, the Court did not address the issue of intervention (or indeed standing) on the basis of the erga omnes quality of the rights concerned when it was held that the Court did not have jurisdiction to hear the case.66 This was criticised by some members of the bench, particularly Judge Weeramantry, who stated in his dissenting opinion that to decide the question of intervention would have ‘served the substantial interests of justice’.67 From this case, therefore, there is clearly support from both judges and states for the contention that intervention may be allowed on the same basis as an invocation claim based on an obligation erga omes.

62  Ibid., para 20. 63  Ibid., para 22. 64 Nuclear Tests (New Zealand v. France), Application for Permission to Intervene Under Article 62/ Declaration of Intervention Under Article 63 of the Government of the Solomon Islands, I.C.J. Reports 1995; Nuclear Tests (New Zealand v. France), Application for Permission to Intervene Under Article 62/Declaration of Intervention Under Article 63 of the Government of the Marshall Islands, I.C.J. Reports 1995; Nuclear Tests (New Zealand v. France), Application for Permission to Intervene Under Article 62/Declaration of Intervention Under Article 63 of the Government of the Federal States of Micronesia, I.C.J. Reports 1995; and Nuclear Tests (New Zealand v. France), Application for Permission to Intervene Under Article 62/Declaration of Intervention Under Article 63 of the Government of Samoa, I.C.J. Reports 1995, all at paras 4, 13–16. 65  Nuclear Tests (New Zealand v. France), Application for Permission to Intervene Under Article 62/ Declaration of Intervention Under Article 63 of the Government of the Solomon Islands, I.C.J. Reports 1995; Nuclear Tests (New Zealand v. France), Application for Permission to Intervene Under Article 62/Declaration of Intervention Under Article 63 of the Government of the Marshall Islands, I.C.J. Reports 1995; Nuclear Tests (New Zealand v. France), Application for Permission to Intervene Under Article 62/Declaration of Intervention Under Article 63 of the Government of the Federal States of Micronesia, I.C.J. Reports 1995; and Nuclear Tests (New Zealand v. France), Application for Permission to Intervene Under Article 62/Declaration of Intervention Under Article 63 of the Government of Samoa, I.C.J. Reports 1995, all at para 14, 66  Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) Case, I.C.J. Reports 1995, para 67. 67  Ibid., Dissenting Opinion of Judge Weeramantry, pp. 358–359.

86  Craig Eggett and Sarah Thin Given the rather strict treatment that third-party intervention has received from the Court, it is unclear whether it would accept such arguments in the future. One particular barrier would appear to be the requirement that the legal interest raised must be specific to the intervening state rather than ‘generalised’.68 When assessing Malta’s application to intervene in the continental shelf dispute between Tunisia and Libya, the Court observed that, although Malta had asserted a legal interest in matters pertaining to the case, Even so, Malta’s interest is of the same kind as the interests of other states within the region. But what Malta has to show in order to obtain permission to intervene under Article 62 of the Statute is an interest of a legal nature which may be affected by the court's decision in the present case between Tunisia and Libya.69 The suggestion would seem to be that an intervening state must show an interest that is specific to them in order to intervene. Under such a reading, it would seem correct to conclude that giving a right of intervention to all states on the basis of an obligation erga omnes ‘would go beyond what the court has so far been prepared to do’.70 Bonafè similarly doubts ‘whether such a legal interest would be “real and concrete”’.71 Christine Chinkin wrote in 1993 that At present it does not appear that the court will regard intervention to uphold what can be termed as ‘public rights’ as appropriate, any more than it will allow an original action to be commenced for that purpose. The court has not developed third party rights in the interest of the world community, but is maintaining the bilateral nature of international litigation.72 It is, conversely, entirely possible to read the passage from the Malta case as being based on the legal nature of Malta’s interest, rather than its uniqueness or specificity. By highlighting that Malta’s interest was no different from those of the other states in the region, the Court could be seen as simply underlining that Malta’s interest was not such as to be affected by the decision in that case per se, but rather a broader interest in the application of related rules to itself, and as such not an

68 See Beatrice I. Bonafe, ‘Interests of a Legal Nature Justifying Intervention before the ICJ’ (2012) 25 Leiden Journal of International Law 739, 754–755; Paolo Palchetti, ‘Opening the International Court of Justice to Third States: Intervention and Beyond’ (2002) 6 Max Planck Yearbook of United Nations Law 139, 178; Christine Chinkin, Third Parties in International Law (Oxford University Press 1993) 161. 69 Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Application to Intervene, Judgment, 1.C.J. Reports 1981, para 33. 70  Christine Chinkin, Third Parties in International Law (Oxford University Press 1993) 288. 71 Beatrice I. Bonafe, ‘Interests of a Legal Nature Justifying Intervention before the ICJ’ (2012) 25 Leiden Journal of International Law 739, 755. 72  Christine Chinkin, Third Parties in International Law (Oxford University Press 1993) 288.

Third-Party Intervention before the ICJ  87 interest that would come under the scope of Article 62. This would appear to be supported by the text of the judgement.73 All in all, there is no clear criterion from the Court’s jurisprudence that the ‘interest of a legal nature’ required must be specific to the intervening state, or indeed ‘real and concrete’. Australia’s submissions in its application to intervene distinguish the two cases, arguing that ‘the New Zealand claim puts directly in issue Australia’s legal rights as a member of the international community’.74 It seems reasonable to posit that third party intervention is a logical extension of the Court’s dictum in Barcelona Traction and Article 48 ARSIWA.75 If a state would have otherwise been able to bring the case against the alleged state in breach, surely this would also put them in a position of having sufficient interest to intervene in the same case if brought by a different state. This is indeed the position of the Institut de Droit International, whose 2005 Resolution reads in part: The International Court of Justice or other international judicial institution should give a state to which an obligation erga omnes is owed the possibility to participate in proceedings pending before the court or that institution and relating to that obligation. Specific rules should govern this participation.76 As with the rules on locus standi discussed earlier, it seems that there is plenty of scope, as a matter of law, for the ICJ to accept Article 62 intervention on the basis of an interest generated by the alleged breach of an erga omnes obligation. The lack

73  E.g. the Court observes that ‘Malta attaches to its request an express reservation that its intervention is not to have the effect of putting in issue its own claims with regard to those same matters vis-à-vis Libya and Tunisia. This being so, the very character of the intervention for which Malta seeks permission shows, in the view of the Court, that the interest of a legal nature invoked by Malta cannot be considered to be one “which may be affected by the decision in the case” within the meaning of Article 62 of the Statute’ and (para 34) that ‘What Malta in effect seeks to secure by its application is the opportunity to argue in the present case in favour of a decision in which the court would refrain from adopting and applying particular criteria that it might otherwise consider appropriate for the delimitation of the continental shelf of Libya and Tunisia. In short, it seeks an opportunity to submit arguments to the court with possibly prejudicial effects on the interests either of Libya or of Tunisia in their mutual relations with one another. To allow such a form of “intervention” would, in the particular circumstances of the present case, also leave the parties quite uncertain as to whether and how far they should consider their own separate legal interests vis-à-vis Malta as in effect constituting part of the subject-matter of the present case’ (Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Application to Intervene, Judgment, I.C.J. Reports 1981, para 33). 74 Nuclear Tests (New Zealand v. France), Application for Permission to Intervene Under the Terms of Article 62 of the Statute, Submitted by the Government of Australia, I.C.J. Reports 1995, para 21. 75  Barcelona Traction, Light and Power Company, Limited, Judgment, I.C.J. Reports 1970, paras 33–34; International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, November 2001, Supplement No. 10 (A/56/10), Article 48 (1) (b). 76  Institut de Droit International, Resolution on Obligations erga omnes in International Law (Krakow Session, 2005) Article 4, available at accessed 23 November 2022.

88  Craig Eggett and Sarah Thin of clarity surrounding this issue is unfortunate, but likely due at least in part to the paucity of such claims made by states. 4.4.2  Nature of Intervention

Broadening the scope of intervention under Article 62 to include intervention in the public interest raises questions about the precise nature and place of such interventions within the dispute settlement architecture of the ICJ. Incorporating public interests into Article 62 interventions, and thereby eroding the predominantly bilateral and adversarial model of proceedings, may raise concerns of overlap with other elements of proceedings before the Court, such as joint proceedings, amicus curiae briefs or advisory opinions. It may be argued that such overlaps would erode the position and control of the parties to the dispute, thereby discouraging states from submitting their disputes before the international dispute settlement body in question.77 Such concerns are understandable, yet the use of Article 62 in the public interest would not undermine the distinct place that third-party intervention plays in the dispute settlement before the ICJ. As a preliminary point, the status of intervening states under Article 62 should be clarified. While not clearly specified in the ICJ Statute or the Rules of Court, intervening states should not be considered parties to the case at hand.78 Indeed, the Court has clarified that this is the case and such a position seems logical given the different and more limited rights of intervening states compared to parties.79 An intervening state does not become a (joint) party, its rights of participation in proceedings are far more restricted than the parties80 and it will not be bound by the decision under Article 59. Relaxing the strict approach of the Court so as to more readily accept interventions in the public interest may seem unnecessary as there already exist mechanisms to take into account such interests: the initiation of advisory proceedings and the submission of amicus curiae briefs. The ICJ’s advisory jurisdiction is provided for in Article 65 of the Statute, which states that the Court may deliver an advisory opinion on ‘any legal question’ following the submission of such a request by an

77  Paolo Palchetti, ‘Opening the International Court of Justice to Third States: Intervention and Beyond’ (2002) 6 Max Planck Yearbook of United Nations Law 139, 174; Moragodage C.W. Pinto, ‘Structure, Process, Outcome: Thoughts on the Essence of International Arbitration’ (1993) 6 Leiden Journal of International Law 241, 261–262. 78 International Court of Justice, Rules of Court, 14 April 1978, Article 81 (2) (c) does require a state making an application under Article 62 to set out ‘any basis of jurisdiction which is claimed to exist between the State applying to intervene and the parties to the case’. However, it does not specify that such a link is necessary for a successful application. 79 Christine Chinkin, Third Parties in International Law (Oxford University Press 1993) 175; Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), Application to Intervene, Judgment, I.C.J. Reports 1990, paras 99–100. 80 The rights of third states intervening on the basis of Article 62 are set out in Rules of Court Article 85.

Third-Party Intervention before the ICJ  89 organ of the UN.81 While the Court’s advisory jurisdiction could be relied upon as a tool for the protection of public interests, it should be noted that initiating such proceedings would be dependent on the political support of one of the UN organs. This is in stark contrast to third-party interventions, which are based on the legal interest(s) at issue and are not predicated on garnering sufficient support within international institutions. Similarly, there is scope for the submission of amicus curiae briefs in ICJ proceedings. Such submissions could, of course, concern matters in the international public interest, however, these play a very different role in proceedings. It should be noted that there is no express provision granting states the right to submit amicus curiae briefs in contentious proceedings before the ICJ. Instead, it is only international organisations that have the explicit right to act as amici curiae.82 That being said, there is nothing explicitly prohibiting states from participating in such a way and there are those that suggest that the procedural law of the ICJ should be modified so as to expressly allow for this.83 In a joint statement made regarding the ongoing ICJ case between The Gambia and Myanmar,84 Canada and the Netherlands explained that a motivation for intervention would be to ‘assist with the complex legal issues that are expected to arise and will pay special attention to crimes related to sexual and gender based violence, including rape’.85 This claim seems to suggest that states may intervene to assist the Court, yet it should be noted that such a state may only do so where it can demonstrate that it has a legal interest.86 This remains true in relation to intervention in the public interest. Reliance on third-party intervention in the public interest should not be seen as a dangerous innovation of the mechanisms provided for in the Statute. These mechanisms already exist and play a unique role, distinct from the aspects discussed in the preceding paragraphs. The ICJ would retain control over access and the essential character of contentious proceedings would remain the same. The ICJ’s function as the principal judicial organ of the United Nations is merely enhanced by an 81 United Nations, Charter of the United Nations, 24 October 1945, Article 96. This states that the General Assembly or Security Council may submit ‘any legal question’, while other organs may request opinions ‘on legal questions arising within the scope of their activities’. 82 United Nations, Statute of the International Court of Justice, 18 April 1946, Article 34 and International Court of Justice, Rules of Court, 14 April 1978, Article 43. 83 Paula Wojcikiewicz Almeida, ‘International Procedural Regulation in the Common Interest: The Role of Third-Party Intervention and Amicus Curiae before the ICJ’ (2019) 18 The Law and Practice of International Courts and Tribunals 163, 183. 84 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar). 85 Government of the Kingdom of the Netherlands, ‘Joint statement of Canada and the Kingdom of the Netherlands regarding intention to intervene in The Gambia v. Myanmar case at the International Court of Justice’ (2 September 2020) accessed 23 November 2022. 86 Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), Application to Intervene, Judgment, I.C.J. Reports 1990, para 130.

90  Craig Eggett and Sarah Thin approach to third-party intervention that more effectively considers international public interests. 4.4.3  Procedural Issues

Several potential procedural issues arise from the prospect of frequent third-party interventions in proceedings before the ICJ. For present purposes, two main issues will be examined: the principle of procedural autonomy and issues of fairness and equality of proceedings. 4.4.3.1 Party Autonomy

One of the issues that is occasionally raised is the compatibility of such intervention with the principle of party autonomy. Party autonomy relates to the control of the parties over the proceedings.87 As such, ‘the principle of party autonomy primarily applies to procedural issues’.88 Prima facie, therefore, one could imagine that there might be a conflict between such a principle and allowing intervention by a third party against the will of one (or both) of the original parties to the dispute. The primary concern here is that the intervention of third parties contrary to the will of the parties involved would be incompatible with the principle of party autonomy.89 First, it is questionable the extent to which such a principle is and should be given weight in the ICJ system. Party autonomy is particularly valued within arbitration – indeed, Holtzmann has called it ‘the essence of the nature of arbitration’.90 However, as numerous commentators note, there is an important distinction to be made between arbitration and more judicial forms of dispute settlement.91 There is an essential distinction between such bodies and the role that they play. Whereas arbitration is essentially ‘a tool in the hand of the parties whose sole purpose is to settle the dispute between them’,92 the ICJ has a broader role. As the principal judicial organ of the United Nations, it has a wider focus.93 The ICJ is often seen in the context of the setting up of the UN and the desire to avoid the scourge of

87 Tomoko Ishikawa, ‘Third Party Participation in Investment Treaty Arbitration’ (2010) 59 International & Comparative Law Quarterly 373, 392. 88 Ibid., 392. 89 See e.g. ibid., 391–392; Moragodage C.W. Pinto, ‘Structure, Process, Outcome: Thoughts on the Essence of International Arbitration’ (1993) 6 Leiden Journal of International Law 241, 260–262. 90 Howard M. Holtzmann, ‘Some Reflections on the Nature of Arbitration’ (1993) 6 Leiden Journal of International Law 265, 266. 91 See e.g. ibid., 266; Sam Muller and Wim Mijs, ‘The Flame Rekindled’ 6 Leiden Journal of International Law 203, 209; Paolo Palchetti, ‘Opening the International Court of Justice to Third States: Intervention and Beyond’ (2002) 6 Max Planck Yearbook of United Nations Law 139, 175. 92 Paolo Palchetti, ‘Opening the International Court of Justice to Third States: Intervention and Beyond’ (2002) 6 Max Planck Yearbook of United Nations Law 139, 175. 93 United Nations, Charter of the United Nations, 24 October 1945, Article 92.

Third-Party Intervention before the ICJ  91 war, mirroring some of the overall aims of the UN.94 As Judge Lachs observed in his Separate Opinion on the Lockerbie case, ‘the court is the guardian of legality for the international community as a whole, both within and without the United Nations’.95 Judge Donoghue writes of the Permanent Court of International Justice, the predecessor of the ICJ, as an ‘innovation’ and that it ‘was created by and was accountable to the broader community of nations, not just to the states that were parties to a particular dispute’.96 Following this, Palchetti argues that ‘the court should take into account not only the interest of the parties but also the possible interests of third parties and, more generally, the interest in the proper administration of justice’.97 The notion that the ICJ would be substantially hindered in its operations by party autonomy, according to Palchetti, reflects a narrow view of the function of the court, which tends to emphasise the role of parties while minimising third states’ interests. Moreover, it is a view which seems to undervalue the fact that it could be in the court’s interest to be in the position of deciding a case after having been fully informed of the interests at stake.98 Thus, while party autonomy may have a role to play here, the position of the ICJ in the international legal order would imply that its role is a far more minor one than in an arbitration context. Even within certain kinds of arbitration where public and broader interests hold particular weight, it seems that party autonomy is generally seen to have less sway. Several commentators contrast, for example, commercial arbitration (where party autonomy is taken to play a rightfully major role in procedural questions) and investment treaty arbitration, where issues of public policy and various interests often come into play.99 In such circumstances, it is argued, party autonomy is unlikely to be a ‘legitimate reason’ to restrict participation in proceedings by third parties.100 Taking these elements together, it seems that party autonomy plays a rather limited role in ICJ procedural issues. The final

  94 Ibid., Article 2 (3); Joan E. Donoghue, ‘The Role of the World Court Today’ (2012) 47 Georgia Law Review 181, 182.   95 He also called the Court ‘the general guardian of legality within the system’: Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Provisional Measures, Order of 14 April 1992, Separate Opinion of Judge Lachs, I.C.J. Reports 1992, p. 26.   96 Joan E. Donoghue, ‘The Role of the World Court Today’ (2012) 47 Georgia Law Review 181, 183.   97 Paolo Palchetti, ‘Opening the International Court of Justice to Third States: Intervention and Beyond’ (2002) 6 Max Planck Yearbook of United Nations Law 139, 175.   98 Ibid., 176.   99 See e.g. Ernst-Ulrich Petersmann, ‘International Rule of Law and Constitutional Justice in International Investment Law and Arbitration’ (2009) 16 Indiana Journal of Global Legal Studies 513, 524–525, 527; Tomoko Ishikawa, ‘Third Party Participation in Investment Treaty Arbitration’ (2010) 59 International & Comparative Law Quarterly 373, 394–397, 398. 100 Tomoko Ishikawa, ‘Third Party Participation in Investment Treaty Arbitration’ (2010) 59 International & Comparative Law Quarterly 373, 398.

92  Craig Eggett and Sarah Thin consideration relates to whether states may be said to have consented to the possibility of third-party intervention, but since this is clearly provided for in the ICJ Statute it would seem that this presents no real obstacle.101 Party autonomy is inherently a principle to be balanced against other contending factors. It is reasonable to suppose that where the broader interests are not particularly pressing, these interests may be weighed up against the interest in preserving party autonomy and the ownership by parties of the process. However, where significant international public interests are engaged, it is highly doubtful that party autonomy would necessarily stand in the way of third-party intervention. 4.4.3.2 Procedural Fairness and Equality

Another procedural issue relates to the fairness of a case or the equality between the original parties to the case. Equality of arms has been a consideration before at the ICJ. The Court took note of such concerns in the Breard case in relation to the impact that provisional measures may have on the equality between the parties.102 It is indeed apparent that if third-party intervention is allowed on one ‘side’ of a dispute, this will have an impact on the equality between parties. The Court encountered such a problem in the Whaling case, where New Zealand sought to intervene in the case originally brought by Australia against Japan with regard to the legality of the latter’s whaling practices, relying on their right to do so under Article 63.103 In response to New Zealand’s Declaration of Intervention, Japan raised concerns about ‘certain serious anomalies that would arise from the admission of New Zealand as an intervenor’.104 These related largely to the fairness of the proceedings and equality of the parties,105 as Japan noted that Australia and New Zealand ‘have stated openly that they are acting in a common cause’.106 Japan’s complaints related in part to the fact that it would need, in effect, ‘to address two cases against it’,107 and would have limited time

101 United Nations, Statute of the International Court of Justice, 18 April 1946, Article 62. 102 Vienna Convention on Consular Relations (Paraguay v. United States of America), Provisional Measures, Order of 9 April 1998, I.C.J. Reports 1998, para 21. See also LaGrand (Germany v. United States of America), Provisional Measures, Order of 3 March 1999, Separate Opinion of President Schwebel, I.C.J. Reports 1999, p. 21. 103 Whaling in the Antarctic (Australia v. Japan), Declaration of Intervention of New Zealand, Order of 6 February 2013, I.C.J. Reports 2013, para 2. 104 Ibid., para 17; Whaling In the Antarctic (Australia v. Japan: New Zealand Intervening), Written Observations of Japan on New Zealand’s Written Observations, I.C.J. Reports 2013, para 4. 105 Whaling In the Antarctic (Australia v. Japan: New Zealand Intervening), Written Observations of Japan on New Zealand’s Written Observations, I.C.J. Reports 2013, para 2; Whaling in the Antarctic (Australia v. Japan), Declaration of Intervention of New Zealand, Order of 6 February 2013, I.C.J. Reports 2013, para 17. 106 Whaling In the Antarctic (Australia v. Japan: New Zealand Intervening), Written Observations of Japan on New Zealand’s Written Observations, I.C.J. Reports 2013, para 3. 107 Ibid.

Third-Party Intervention before the ICJ  93 to do so.108 Allowing an intervention as such could act so as to ‘avoid some of the safeguards of procedural equality under the Statute and Rules of the court’.109 This raises important issues relating to procedural fairness and highlights the difficulties inherent in adjudicating on issues of common and community interest in the context of adversarial and bilateral structures. Since the fairness of trial procedures undoubtedly engage the community interest as well, finding procedures that serve to remedy such inequities is fundamental to avoiding conflict between community interests, or potentially a case of the metaphorical one step forward, two steps back. The Court’s response was not to block New Zealand’s intervention but to adjust the procedure as possible to allow Japan more time to prepare its observations and to allow New Zealand less time to make its oral pleadings.110 We see therefore not only the acceptance that New Zealand can be part of the proceedings, but also an adjustment of procedure to allow for greater fairness. And, as Ridings points out, this did not actually detract significantly from New Zealand’s position as it ‘ensured that the New Zealand arguments were placed fully before the court’.111 While this goes at least some way to finding a solution to such problems, it is clear that these issues will persist. Judge Owada made clear in his Declaration appended to the Order that he believed insufficient consideration to have been given to Japan’s concerns in this regard.112 Further, it is reasonable to assume that such issues raised in Article 62 cases will bring with them greater complications due to the broader scope of such intervention. It will be harder to limit the substance of the intervention as was done in Whaling, especially if the intervention occurs on the basis of an erga omnes right. Nonetheless, Whaling does demonstrate a certain creativity and flexibility on the part of the Court that is promising as regards the finding of solutions to these issues in the future. It is also worth noting here that while legal procedural fairness is highly important, it should be seen in context. There are already considerable ‘practical inequalities’ between states parties to cases before the ICJ, whether financial or case-related, despite the various UN funds that are available to support them.113 The idea that states are equally able to

108 Ibid., para 4. 109 Whaling in the Antarctic (Australia v. Japan), Declaration of Intervention of New Zealand, Order of 6 February 2013, I.C.J. Reports 2013, para 17. These safeguards included those in: United Nations, Statute of the International Court of Justice, 18 April 1946, Article 31 (5) and International Court of Justice, Rules of Court, 14 April 1978, Article 36 (1). 110 Whaling in the Antarctic (Australia v. Japan), Declaration of Intervention of New Zealand, Order of 6 February 2013, I.C.J. Reports 2013, para 17. 111 Penelope Ridings, ‘The Intervention Procedure in Whaling in the Antarctic: A Threat to Bilateralism?’ (2014) 32 Australian Yearbook of International Law 97, 109. 112 Whaling in the Antarctic (Australia v. Japan), Declaration of Intervention of New Zealand, Order of 6 February 2013, Declaration of Judge Owada, I.C.J. Reports 2013, para 4. 113 Hugh Thirlway, ‘Procedural Fairness in the International Court of Justice’ in Arman Savarian and others (eds), Procedural Fairness in International Courts and Tribunals (Cambridge University Press 2017) 255. See also Connie Peck and Thomas Lee, Increasing the Effectiveness of the International Court of Justice (Cambridge University Press 1997) 118–119.

94  Craig Eggett and Sarah Thin make their case before the ICJ is therefore a fiction. In this context, it seems that the inequality created by multiple states making similar arguments on one side is less pressing. Taking all this into account, then, it seems that this too is not an insurmountable barrier when it comes to third-party intervention in the public interest. 4.5 Concluding Remarks There are, unequivocally, public interests in international law. These public interests are common to all subjects of the international legal system, transcending their individual interests and amounting to more than the sum of these interests. Public interests have been given concrete legal expression and protection by the development of jus cogens norms and obligations erga omnes. The logic of erga omnes obligations, in particular, is grounded on the idea that all states may have rights when it comes to the protection of certain interests. The claims made in this chapter are, in essence, based on the same reasoning: public interests can and should serve as a basis upon which states can take action, in this case, to intervene in a case before the ICJ. From the starting point that states may invoke responsibility on the basis of interests derived from obligations erga omnes, it is but a small step to conclude that the requirement to demonstrate a legal interest for third-party intervention includes public interests. There is significant practice of states in making such claims, despite the reluctance of the Court to relax its strict approach to such interventions. But the Court could very well become more receptive to third-party interventions of this kind. None of the obstacles and challenges to interventions in the public interest is insurmountable. The unique function of third-party intervention as a tool for affected states to make known their views on their legal interest remains the same and the integrity and fairness of contentious proceedings can be ensured. There are, therefore, no significant legal barriers to the development of third-party interventions as an effective tool for litigation in the public interest. The tools are there; we might as well use them. Bibliography Judicial Decisions and Orders Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar). Barcelona Traction, Light and Power Company, Limited, Judgment, I.C.J. Reports 1970. Continental Shelf (Libyan Arab Jamahiriya/Malta), Application to Intervene, Judgment, I.C.J. Reports 1984. Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Application to Intervene, Judgment, I.C.J. Reports 1981. Haya de la Torre Case, Judgment of June 13th, 1951: I.C.J . Reports 1951. Jurisdictional Immunities of the State (Germany v. Italy), Application for Permission to Intervene, Order of 4 July 2011, I.C.J. Reports 2011. LaGrand (Germany v. United States of America), Provisional Measures, Order of 3 March 1999, I.C.J. Reports 1999.

Third-Party Intervention before the ICJ  95 Land and Maritime Boundary between Cameroon and Nigeria, Application to Intervene, Order of 21 October 1999, I.C.J. Reports 1999. Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), Application to Intervene, Judgment, I.C.J. Reports 1990. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Declaration of Intervention, Order of 4 October 1984, I.C.J. Reports 1984. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986. Nuclear Tests (Australia v. France), Application to Intervene, Order of 20 December 1974, I.C.J. Reports 1974. Nuclear Tests (New Zealand v. France), Application for Permission to Intervene Under Article 62/Declaration of Intervention Under Article 63 of the Government of Samoa, I.C.J. Reports 1995. Nuclear Tests (New Zealand v. France), Application for Permission to Intervene Under Article 62/Declaration of Intervention Under Article 63 of the Government of the Federal States of Micronesia, I.C.J. Reports 1995. Nuclear Tests (New Zealand v. France), Application for Permission to Intervene Under Article 62/Declaration of Intervention Under Article 63 of the Government of the Marshall Islands, I.C.J. Reports 1995. Nuclear Tests (New Zealand v. France), Application for Permission to Intervene Under Article 62/Declaration of Intervention Under Article 63 of the Government of the Solomon Islands, I.C.J. Reports 1995. Nuclear Tests (New Zealand v. France), Application for Permission to Intervene Under the Terms of Article 62 of the Statute, Submitted by the Government of Australia, I.C.J. Reports 1995. Nuclear Tests (New Zealand v. France), Application to Intervene, Order of 20 December 1974, I.C.J. Reports 1974. Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Provisional Measures, Order of 14 April 1992, I.C.J. Reports 1992. Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports 2012. Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court's Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) Case, I.C.J. Reports 1995. South West Africa, Second Phase, Judgment, I.C.J. Reports 1966. Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Application for Permission to Intervene, Judgment, I.C.J. Reports 2001. SS “Wimbledon” [1923] PCIJ Series A01. Territorial and Maritime Dispute (Nicaragua v. Colombia), Application for Permission to Intervene, Judgment, I.C.J. Reports 2011. Vienna Convention on Consular Relations (Paraguay v. United States of America), Provisional Measures, Order of 9 April 1998, I.C.J. Reports 1998. Whaling In the Antarctic (Australia v. Japan: New Zealand Intervening), Written Observations of Japan on New Zealand's Written Observations, I.C.J. Reports 2013. Whaling in the Antarctic (Australia v. Japan), Declaration of Intervention of New Zealand, Order of 6 February 2013, I.C.J. Reports 2013.

96  Craig Eggett and Sarah Thin Treaties United Nations, Charter of the United Nations, 24 October 1945. United Nations, Statute of the International Court of Justice, 18 April 1946. United Nations, Vienna Convention on the Law of Treaties, 23 May 1969, United Nations, Treaty Series, vol. 1155. Journal Articles and Chapters in Edited Collections Almeida PW, ‘International Procedural Regulation in the Common Interest: The Role of Third-Party Intervention and Amicus Curiae before the ICJ’ (2019) 18 The Law and Practice of International Courts and Tribunals 163.. Bodansky D, ‘What’s in a Concept? Global Public Goods, International Law and Legitimacy’ (2012) 23 European Journal of International Law 651. Bonafe BI, ‘Interests of a Legal Nature Justifying Intervention Before the ICJ’ (2012) 25 Leiden Journal of International Law 739. Cassinelli C, ‘Some Reflections on the Concept of the Public Interest’ (1958) 69 Ethics 48. Donoghue JE, ‘The Role of the World Court Today’ (2012) 47 Georgia Law Review 181. Gautier P, ‘Standing of NGOs and Third-Party Intervention Before the International Tribunal for the Law of the Sea’ (2014) 47 Revue Belge de Droit International 205. Greig DW, ‘Third Party Rights and Intervention Before the International Court’ (1992) 32 Virginia Journal of International Law 285. Holtzmann HM, ‘Some Reflections on the Nature of Arbitration’ (1993) 6 Leiden Journal of International Law 265. Ishikawa T, ‘Third Party Participation in Investment Treaty Arbitration’ (2010) 59 International & Comparative Law Quarterly 373. Krisch N, ‘The Decay of Consent: International Law in an Age of Global Public Goods’ (2014) 108 American Journal of International Law 1. Mates P and Barton M, ‘Public Versus Private Interest – Can the Boundaries be Legally Defined?’ (2011) 2 Czech Yearbook of International Law 172. Oxman BH, ‘The International Commons, the International Public Interest and New Modes of International Lawmaking’ in Delbrück J (ed), New Trends in International Lawmaking (Ducker & Humblot 1997). Palchetti P, ‘Opening the International Court of Justice to Third States: Intervention and Beyond’ (2002) 6 Max Planck Yearbook of United Nations Law 139. Petersmann E-U, ‘International Rule of Law and Constitutional Justice in International Investment Law and Arbitration’ (2009) 16 Indiana Journal of Global Legal Studies 513. Pinto MCW, ‘Structure, Process, Outcome: Thoughts on the Essence of International Arbitration’ (1993) 6 Leiden Journal of International Law 241. Ridings P, ‘The Intervention Procedure in Whaling in the Antarctic: A Threat to Bilateralism?’ (2014) 32 Australian Yearbook of International Law 97. Riedel E, ‘International Environmental Law - A Law to Serve the Public Interest? An Analysis of the Scope of the Binding Effect of Basic Principles (Public Interest Norms)’ in Delbrück J (ed), New Trends in International Lawmaking - International ‘Legislation’ in the Public Interest (Duncker & Humblot 1997). Simma B, ‘From Bilateralism to Community Interest in International Law’ (1994) 250 Receuil des Cours 217. Thin S, ‘Community Interest and the International Public Legal Order’ (2021) 68 Netherlands International Law Review 35.

Third-Party Intervention before the ICJ  97 Thirlway H, ‘Procedural Fairness in the International Court of Justice’ in Savarian A and others (eds), Procedural Fairness in International Courts and Tribunals (CUP 2017). Villalpando S, ‘The Legal Dimension of the International Community: How Community Interests Are Protected in International Law’ (2010) 21 European Journal of International Law 387. Zarecor WD, ‘The Public Interest and Political Theory’ (1959) 69 Ethics 277.

Books Chandrasekhara Rao P and Gautier P, The International Tribunal for the Law of the Sea: Law, Practice and Procedure (Edward Elgar 2018). Chinkin C, Third Parties in International Law (OUP 1993). Peck C and Lee RS, Increasing the Effectiveness of the International Court of Justice (CUP 1997). Villalpando S, L’émergence de la communauté internationale dans la responsabilité des Etats (Graduate Institute Publications 2005). von Bogdandy A and Venzke I, In Whose Name? A Public Law Theory of International Adjudication (OUP 2014).

ILC Reports International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries (Yearbook of the International Law Commission II, 2001). Tladi D, ‘Second Report on Jus Cogens’ in Report of the ILC on the Work of its 69th Session, 1 May–2 June and 3 July–4 August 2017, UN Doc A/CN.4/706.

Miscellaneous International Court of Justice, Rules of Court, 14 April 1978. Institut de Droit International, Resolution on Obligations Erga Omnes in International Law (Krakow Session, 2005). Government of the Kingdom of the Netherlands, ‘Joint statement of Canada and the Kingdom of the Netherlands Regarding Intention to Intervene in The Gambia v. Myanmar Case at the International Court of Justice’ (2 September 2020) accessed 23 November 2022.

5

Mapping the ‘Public’ in Public Interest Litigation An Empirical Analysis of Participants before the International Court of Justice Paula Wojcikiewicz Almeida and Miriam Cohen1

5.1 Introduction1 International law is not only a tool for co-existence among states, but also, and ultimately, a mechanism for the production and protection of community interests. Despite a continuous discussion about the features and means of the establishment of community interests,2 their existence is now accepted in international law.3 Traditionally, the concept of community interest refers to certain fundamental values that cannot be left to the free disposition of individual states or in exclusive relation to them, but is notably ‘recognised and sanctioned by international law as a matter of concern to all states’.4 Community interests may be divided into two categories, such as common interests of humankind, on the one hand, and protection of individuals or groups of individuals such as minorities, on the other hand.5 Examples include the preservation of international peace and security, the protection of the environment and common heritage of humanity and the international concern with human rights and issues related to solidarity between developed and developing countries,6 but also obligations arising from 1 Researchers from the Jean Monnet Centre of Excellence on EU-South America Global Governance, Getulio Vargas Foundation Law School: Gabriela Hühne Porto, Giulia Tavares Romay and Mariana Gouvea de Oliveira. 2 The term ‘community interests’ is sometimes used interchangeably with ‘common interests’, ‘collective interests’, ‘common concerns’ or ‘common values’ (Isabel Feichtner, ‘Community Interest’ [2007] Max Planck Encyclopedia of Public International Law para 1). 3  Rüdiger Wolfrum, ‘Enforcing Community Interests through International Dispute Settlement: Reality or Utopia?’ in Ulrich Fastenrath et al. (eds), From Bilateralism to Community Interest: Essays in Honour of Judge Bruno Simma (Oxford University Press 2011) 1132. 4 Bruno Simma, ‘From Bilateralism to Community Interest in International Law’ (1994) 250 Recueil des Cours de l’Académie de Droit International 233. 5  In the first group, common interest of mankind, the author includes: ‘the interests in the preservation of international peace, in the protection of the global environment, and in the management of spaces beyond national territorial jurisdiction’. In Rüdiger Wolfrum, ‘Enforcing Community Interests through International Dispute Settlement: Reality or Utopia?’ in Ulrich Fastenrath et al. (eds), From Bilateralism to Community Interest: Essays in Honour of Judge Bruno Simma (Oxford University Press 2011) 1132–1136. 6  See Bruno Simma, supra note 4. DOI:  10.4324/9781003433460-7

Mapping the ‘Public’  99 the law of diplomatic protection or rules of international trade law. With the aim of addressing the typology of community interests protected by international law, these can be structured around ‘four distinguishable objectives’ which require law-making at the international level: (i) the protection and creation of common goods (the maintenance of peace and security; protection of the environment; and the establishment of a common market); (ii) the protection of common values (the international legal regimes for the protection of nature and living resources; the international agreements for the conservation of national or indigenous culture; human rights law and international criminal law); (iii) the internationalisation of common spaces (the protection of common spaces, such as the Moon, the deep seabed and its resources; Antarctica and the high seas); and (iv) redistributive and intergenerational justice (protection of the environment and sustainable development, coupled with demands for redistributive justice and international solidarity).7 As put by former ICJ Judge Simma, the path towards the realisation of community interests has led to a greater institutionalisation of international society.8 As a component of the international governance structure, international courts and tribunals (ICTs) are equipped to protect, express and shape values that reflect community interests by the power granted in international treaties.9 ICTs can be considered a key element of the promotion of the international rule of law,10 including the provision of global public goods.11 Public interest litigation is often used as a vehicle to advance human rights at national and international levels.12 In particular, the International Court of Justice (ICJ) has a prominent role in the protection of the interests of the international community by adjudicating interstate claims. After a so-called first phase marked by ‘hesitation and constraint’, to borrow Judge Simma’s words, the ICJ has indeed become more concerned with human rights in recent years.13 The case law of the ICJ also deals with issues

 7  See Isabel Feichtner, ‘Community Interest’ (2007) Max Planck Encyclopedia of Public International Law paras 14–25.   8 Bruno Simma, supra note 4, at 235.   9 Markus Benzing, ‘Community Interests in the Procedure of International Courts and Tribunals’ (2006) 5 (3) The Law and Practice of International Courts and Tribunals 369, 377. See also Herencia Carrasco Salvador, ‘Public Interest Litigation in the Inter-American Court of Human Rights: The Protection of Indigenous Peoples and the Gap between Legal Victories and Social Change’ (2015) Revue québécoise de droit international, hors-série mars 2015. L’État de droit en Amérique latine et au Canada 199–220. 10 Geir Ulfstein, ‘International Courts and Judges: Independence, Interaction and Legitimacy’ (2014) 46 (3) NYU Journal of International Law and Politics 849, 859–860. 11 André Nollkamper, ‘International Adjudication of Global Public Goods: The Intersection of Substance and Procedure’ (2012) 23 The European Journal of International Law 769, 769–770. 12 Herencia Carrasco Salvador, ‘Public Interest Litigation in the Inter-American Court of Human Rights: The Protection of Indigenous Peoples and the Gap between Legal Victories and Social Change’ (2015) Revue québécoise de droit international, hors-série mars 2015. L’État de droit en Amérique latine et au Canada 199–220. 13 Bruno Simma, ‘Human Rights before the International Court of Justice: Community Interest Coming to Life?’ in Christian J. Tams (ed), Development of International Law by the International Court of Justice (Oxford University Press 2013) 579–585.

100  Wojcikiewicz Almeida and Cohen involving public interest or individuals’ rights.14 This illustrates the growing tendency that international litigation has rarely been a matter of private concern or interest affecting exclusively the parties in dispute15 and would indirectly stimulate public interest in the work of the Court, among other advantages.16 As far as the ICJ is concerned, there are no differentiated rules of procedure based on the prominent bilateral or multilateral interests in a dispute settlement.17 Even though the ICJ Statute ‘clearly and explicitly rejects every possible type of direct participation of entities other than states in disputes brought before it’, the Court has been increasingly confronted with the participation of state and non-state actors (NSAs) in both contentious and advisory proceedings18 – especially when community interests are at stake. NSA is not a legal term, but a descriptive concept, which seeks to reflect the contours of reality.19 There has been a wide attempt to classify NSAs, as it represents a very heterogeneous group, but there ‘is no generally accepted definition of the term’.20 This research adopts the understanding of the 2016 International Law Association Report and define NSAs as being ‘legally recognized and organised entities that are not comprised of nor governed or controlled by states nor groups of states and that actually perform functions in the international arena that have real or potential effects on international law’.21

14 See Jona Razzaque, ‘Changing Role of Friends of the Court in the International Courts and Tribunals’ (2001) 1 (3) Non-State Actors and International Law 169, 175; Lance Bartholomeusz, ‘The Amicus Curiae before International Courts and Tribunals’ (2005) 5 Non-State Actors and International Law 209, 216. 15 Dinah Shelton, ‘The Participation of Nongovernmental Organisations in International Judicial Proceedings’ (1994) 88 (4) The American Journal of International Law 611, 614–615. 16 Shabtai Rosenne, The Law and Practice of the International Court, 1920–1996 vol II (Martinus Nijhoff 1997) 654–655. 17 Markus Benzing, ‘Community Interests in the Procedure of International Courts and Tribunals’ (2006) 5 (3) The Law and Practice of International Courts and Tribunals 369, 385; Rüdiger Wolfrum, ‘Enforcing Community Interests through International Dispute Settlement: Reality or Utopia?’ in Ulrich Fastenrath et al. (eds), From Bilateralism to Community Interest: Essays in Honour of Judge Bruno Simma (Oxford University Press 2011) 1138–1139. 18 Eric De Brabandere, ‘NGOs and the “Public Interest”: The Legality and Rationale of Amicus Curiae Interventions in International Economic and Investment Disputes’ (2011) 12 (1) Chicago Journal of International Law 85, 91; Gleider I. Hernández, ‘Non-state actor from the perspective of the International Court of Justice’ in Jean D’Aspremont (ed), Participants in the International Legal System (Routledge 2011) 140. 19 Jean d’Aspremont, ‘Non-State Actors in International Law: Oscillating between Concepts and Dynamics’ in Jean d’Aspremont (ed), Participants in the International Legal System: Multiple Perspectives on Non-State Actors in International Law (Routledge 2011) 1. 20  International Law Association, ‘Report on “Non State Actors”’ (Johannesburg Conference, 2016) pp. 4–7. 21 Ibid., p. 4.

Mapping the ‘Public’  101 State and NSAs may participate in and influence international dispute settlement in various capacities,22 both formally and informally.23 Whereas the potential of their formal role has yet to be more broadly explored, their informal participation in international disputes must also be taken into account.24 This chapter empirically maps and discusses the ICJ practice concerning all forms of submitting relevant information to the court by a variety of states and NSAs under its existing Statutes and Rules provisions. The focus of the chapter is on inter-state contentious proceedings, notably when community interests are at stake.25 Advisory proceedings are outside the scope of the present chapter, which aims to analyse non-state participation in ‘public interest litigation’. The empirical research was designed to assess all requests, applications and submissions presented to the ICJ and the notifications issued by the Court to the relevant actors (accepted and declined), as well as other informal ways of submitting information to the court. The classification of formal and informal participation follows the existence or nonexistence of a legal basis in the Statute or Rules of the Court for the participation. For direct participation, this chapter took into account participation initiatives directly presented to the court by the relevant actor, while indirect participation refers to views presented within states’ and IGOs’ submissions, whenever these subjects acted ‘on behalf of’ other actors. In order to map indirect forms of participation, this empirical research also included the analysis of a variety of documents available in the Court’s docket, which did not lead to formal submissions of information. Data was mostly obtained from the Court’s correspondence (not available in all proceedings) or from sparse mentions in the dissenting or separate opinions of judges. It is important to stress that attempts to participate by different actors were also taken into account, regardless of being further denied by the Court. 5.2 Mapping Participation in Contentious Proceedings: Formal Avenues of Participation For the purposes of this research, the participation of states and NSAs under the provisions of the ICJ Statute and Rules was deemed formal. Considering that participation is not limited to the possibility conferred by the court via statutory rules, the empirical analysis of both ICJ legal documents and the doctrine also identified other avenues for participation considered informal (section 5.3). 22 The role of non-state actors in litigation has increased, mainly with their participation in the form of NGOs. As put by Wagner, they can directly participate in proceedings as a party (sometimes as a third-party), participate as amicus curiae or influence competent actors to bring cases. Markus Wagner, ‘Non-State Actors’ (2013) Max Planck Encyclopedia of Public International Law para 22. 23  It is rather exceptional, however, that procedural rules provide ius standi rights to NSAs to initiate proceedings, and thus become full parties to a case’. See International Law Association, ‘Report on ‘Non State Actors’’ (Sofia Conference, 2012) p. 19. 24 Eric De Brabandere, supra note 18 at 85, 86, 89. See also p. 112: ‘The traditional limitation of access to international dispute settlement mechanisms to states is increasingly being challenged by the multifaceted participation of non-state actors therein’. 25 The research data was last updated on 3 October 2022.

102  Wojcikiewicz Almeida and Cohen The empirical analysis of states’ and NSAs’ formal participation in ICJ contentious cases focused on the statutory legal basis for intervention or submission of observations by states, intergovernmental organisations (IGOs), non-governmental organisations (NGOs) and individuals. The research proceeded with keyword research in all contentious cases available in the ICJ database organised by year of judgment. The documents analysed were the written statements, the orders, the judgments and the ‘other documents’ section. In order to map the participation of actors other than the main parties, the following keywords were applied: amicus curiae, amici curiae, non-governmental organisation, NGO, individual, individuals, non-state and organisation. However, these keywords did not return any results for the purpose of this research. The text of the Court’s judgments mentions the notifications to the relevant actors to submit written statements and their participation in the oral proceedings. Therefore, information on the written statements was gathered directly via the ICJ website, while participation in the oral proceedings was extracted from the text of the verbatim record of the audience. In practice, the ICJ Registrar issues notifications to inform states and international organisations of the case, giving the opportunity to furnish information to the court via written and oral statements. For this reason, the legal basis for notifications to submit observations by the Registrar were also used as keywords: United Nations, Statute of the International Court of Justice, 18 April 1946, Articles 34 (2), 34 (3) and 50; and International Court of Justice, Rules of Court, 14 April 1978, Articles 43 (2) and 69. The research considered the main topic of the disputes, as identified in the ICJ’s official ‘overview of the case’ and in the ‘application instituting proceedings’ of each case available in the court’s caseload. However, ‘it is easier to describe the content of community interests than to define their subjects and points of reference’.26 The analysis of ICJ practice concerning the submission of relevant information to the court cannot be restricted to the instances in which the relevant actors effectively submitted observations to the Court in contentious cases. The Court’s efforts to notify relevant actors to submit written statements could demonstrate, on the one hand, the Court’s openness to state and NSA participation and, on the other hand, the organisations’ unwillingness to present observations.27 For this reason, this research considered both the notifications issued by the Court to the relevant actors and the requests and applications presented by states and NSAs to the ICJ. Some community interest–related topics prompted a greater number of ICJ notifications and/or requests and applications presented by state and NSAs, as can be noted in Figure 5.1.

26  Bruno Simma, ‘From Bilateralism to Community Interest in International Law’ (1994) 250 Recueil des Cours de l’Académie de Droit International 235. 27  See Pierre-Marie Dupuy and Cristina Hoss, ‘Article 34’ in Andreas Zimmermann, Christian J. Tams, Karin Oellers-Frahm and Christian Tomuschat (eds), The Statute of the International Court of Justice: A Commentary (3rd edn, Oxford University Press 2019) para 17.

SUBJECT-MATTERS THAT PROMPTED MOST MANIFESTATIONS OF FORMAL PARTICIPATION

Mapping the ‘Public’  103

Marime and Territory delimitaons

5

Genocide allegaons

8

4

2 11

Use of force

3

Nuclear weapons 1 2

5

5 0

3

ICJ noficaon accepted by an individual - Expert opinion submied to the Court

5

ICJ noficaon for submission of observaons declined by an IGO

17

4

Armed acvies

2

8

ICJ noficaon for submission of observaons unanswered by an IGO

1

IGO request for permission to submit observaons awaing Court's decision State applicaon for permission to intervene accepted by the Court State applicaon for permission to intervene accepted by the Court. Intervenon later on considered lapsed by the Court

1 6

9 12 15 18 21 NUMBER OF ICJ NOTIFICATIONS

24

Figure 5.1 Subject matter that prompted most manifestations of formal participation (notifications, requests and applications) in ICJ contentious cases.

As of 3 October 2022, this research was able to map 93 manifestations of formal participation in contentious cases, and this includes both the notifications issued by the court to the relevant actors and the requests and applications presented by state and NSAs to the ICJ. The topics presented below represent 80% of all ICJ notifications and/or requests and applications by the relevant actor. The topics concerning ‘Maritime and Territory delimitations’ brought 21 manifestations of formal participation,28 five of which were ICJ notifications positively answered by individuals,29 and two of which consisted of state applica-

28 For the declined and unanswered manifestations, see the cases: Continental Shelf (Tunisia v. Libya), Continental Shelf (Libya v. Malta), Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v. Malaysia), Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Maritime Delimitation in the Black Sea (Romania v. Ukraine), Territorial and Maritime Dispute (Nicaragua v. Colombia), Maritime Dispute (Peru v. Chile), Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Land Boundary in the Northern Part of Isla Portillos (Costa Rica v. Nicaragua), Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v. Nicaragua), Maritime Delimitation in the Indian Ocean (Somalia v. Kenya), Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 nautical miles from the Nicaraguan Coast (Nicaragua v. Colombia), Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia). 29 Four of them were issued in the joint cases Maritime Delimitation in the Caribbean Sea and the Pacific Ocean and Land Boundary in the Northern Part of Isla Portillos (Costa Rica v. Nicaragua), culminating in one expert opinion submitted to the court. The other one occurred in the case Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v. USA) and the notified individual provided the court with an expert opinion.

104  Wojcikiewicz Almeida and Cohen tions for permission to intervene accepted by the court.30 Maritime and territorial boundaries can involve the interests of nearby third states with space interests that intersect or overlap with one another.31 Therefore, these disputes involve the community’s interests in regional implications of the delimitation and in the construction of a more coherent body of maritime and territorial boundary practice.32 The ICJ had previously acknowledged the community interest character of the duty to enforce human rights worldwide,33 in particular, the duty of states to respect general principles of international law such as ‘elementary considerations of humanity’.34 Disputes relating to ‘genocide allegations’ also lead to 21 manifestations of formal participation.35 The currently pending case Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russia) alone motivated 17 applications for permission to intervene by third states and one request by the European Union.36 The topics concerning ‘use of force’, ‘nuclear weapons’ and ‘armed activities’ relate to the preservation of international peace and security,37 which can be understood as the cornerstone of an international law shaped by community interest38 and the most important topic in the agenda for the protection of the common interest

30 Nicaragua intervening in Land, Island and Maritime Frontier Dispute (El Salvador v. Honduras) and Equatorial Guinea intervening in Land and Maritime Boundary (Cameroon v. Nigeria). 31 Jonathan I. Charney, ‘Progress in International Maritime Boundary Delimitation Law’ (1994) 88 (2) The American Journal of International Law 250. 32 Ibid. 33 Bruno Simma, supra note 4, at 242. Another human rights–related topic identified in the research concerns ‘Activities Related to Racial Discrimination’, which only prompted three ICJ notifications for the submission of observations addressed to IGOs. These were either declined or left unanswered by the relevant organisations (see the cases Application of the ICERD [Georgia v. Russia], Application of the ICERD [Qatar v. UAE] and Application of the International Convention for the Suppression of the Financing of Terrorism and of the ICERD [Ukraine v. Russia]). 34 Corfu Channel case, Judgment of April 9th, 1949: I.C.J . Reports 1949, p. 4 et seq., p. 22; Bruno Simma, supra note 4, at 292. 35 For the declined and unanswered manifestations, see the cases: Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar). 36 The states wishing to intervene in the Ukraine v. Russia genocide case under Art. 63 of the Statute, as of 3 October 2022, are the following: New Zealand, Latvia, Lithuania, United Kingdom, Germany, United States of America, Sweden, Romania, France, Poland, Italy, Denmark, Ireland, Finland, Estonia, Spain and Australia (see Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide [Ukraine v. Russian Federation], Provisional Measures, Order of 16 March 2022, I.C.J. Reports 2022). The same case also prompted one request for participation under Art. 34 (2) from the European Union (International Court of Justice, Press Release No.2022/29 [18 August 2022] accessed 30 November 2022). 37 See See Bruno Simma, supra note 4, at 236–237. 38 Bruno Simma, supra note 4, at 236; Sarah Thin, ‘Community Interest and the International Public Legal Order’ (2021) 68 Netherlands International Law Review 35, 49.

Mapping the ‘Public’  105 of mankind.39 The threat or use of ‘force’ prompted 16 manifestations.40 The Court issued four notifications to appoint expert individuals to issue an expert opinion in the case Armed Activities on the Territory of the Congo (DRC v. Uganda).41 Furthermore, El Salvador submitted one application for permission to intervene in the case Military and Paramilitary (Nicaragua v. USA),42 which the Court declined. Activities regarding ‘nuclear weapons’ prompted eight manifestations of participation.43 The Court accepted two applications for permission to intervene from Fiji44 but considered them lapsed later on.45 The matter of ‘armed activities’ motivated six ICJ notifications to the relevant actors,46 although all were either declined or left unanswered by the relevant IGOs.47 Six ICJ provisions stood out as formal avenues of participation in contentious cases: Articles 34 (2), 34 (3), 50, 62 and 63 of the ICJ Statute, and Article 43 (2) of the ICJ Rules of Court. Figure 5.2 shows the number of ICJ notifications to the relevant actor and/or requests and applications submitted to the court, according to their legal bases. The Registrar of the court addressed 56 notifications to the relevant actors: 45 notifications to IGOs under the basis of Articles 34 (3) of the Statute and 43 (2)

39 Rüdiger Wolfrum, ‘Enforcing Community Interests through International Dispute Settlement: Reality or Utopia?’ in Ulrich Fastenrath et al. (eds), From Bilateralism to Community Interest: Essays in Honour of Judge Bruno Simma (Oxford University Press 2011) 1132–1136. 40 For the declined and unanswered ICJ notifications to the relevant IGOs, see the cases: Armed Activities on the Territory of the Congo (DRC v. Uganda) (three) and the Legality of Use of Force cases against Belgium, Canada, France, Germany, Italy, the Netherlands, Portugal and the UK (eight). 41 International Court of Justice, Experts Report on Reparations for The International Court of Justice, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), 19 December 2020. accessed 3 October 2022. 42 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Declaration of Intervention of the Republic of El Salvador, I.C.J. Reports 1984. 43 For a glance at the declined and unanswered manifestations, see the cases: Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France), Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. UK). 44 See cases Nuclear Tests (Australia v. France) and Nuclear Tests (New Zealand v. France). 45 Nuclear Tests (Australia v. France), Application to Intervene, Order of 20 December 1974, I.C.J. Reports 1974; Nuclear Tests (New Zealand v. France), Order of 20 December 1974, I.C.J. Reports 1974. 46 For a glance at the declined manifestations, see the cases: Border and Transborder Armed Actions (Nicaragua v. Honduras), Armed Activities on the Territory of the Congo (New Application: 2002) (DRC v. Rwanda) and Armed Activities on the Territory of the Congo (DRC v. Uganda). 47 For the declined and unanswered ICJ notifications to the relevant IGOs, see the cases: Border and Transborder Armed Actions (Nicaragua v. Honduras), Armed Activities on the Territory of the Congo (New Application: 2002) (DRC v. Rwanda) and Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua).

106  Wojcikiewicz Almeida and Cohen

Art. 34 (2) Statute 1 1

LEGAL BASES PER TYPE OF ACTOR

Art. 34 (3) Statute

40

Art. 43 (2) Rules

5

Art. 50 Statute

11

Art. 62 Statute

11

IGO Individual NGO Art. 63 Statute

State

20

Arts. 62 and 63 Statute

4 0

5

10

15

20

25

30

35

40

NUMBER OF MANIFESTATIONS OF FORMAL PARTICIPATION

Figure 5.2  Legal bases of state and NSAs’ manifestations of formal participation (notifications, requests and applications) in contentious cases per type of actor.

of the Rules,48 and 11 to individuals under the basis of Article 50 of the Statute.49 The lack of notification, however, does not prevent the organisation from submitting observations proprio motu:50 one IGO and one NGO have requested permission to submit observations to the court under the basis of Article 34 (2) of the Statute.51 States have also applied to intervene before the ICJ: 11 applications under

48 Only one of these notification has been positively answered by an IGO, which culminated in the submission of an observation by the ICAO in the Aerial Incident of 3 July 1988 case. 49 In contrast, all notifications based under Art. 50 were positively answered, culminating in the submission of expert opinions in the cases Corfu Channel, Delimitation of the Maritime Boundary in the Gulf of Maine Area, Maritime Delimitation in the Caribbean Sea and the Pacific Ocean, adjoined with Land Boundary in the Northern Part of Isla Portillos and Armed Activities (DRC v. Uganda). 50  Pierre-Marie Dupuy and Cristina Hoss, ‘Article 34’ in Andreas Zimmermann, Christian J. Tams, Karin Oellers-Frahm and Christian Tomuschat (eds), The Statute of the International Court of Justice: A Commentary (3rd edn, Oxford University Press 2019) para 2. 51 Respectively in the cases Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russia) and Asylum (Colombia v. Peru).

Mapping the ‘Public’  107 Article 62 of the Statute, 18 under Article 63 of the Statute and four under a twofold legal basis pertaining to both provisions52 (see section 5.2.1). Standing out as the actor that received most ICJ notifications, IGOs can make use of Articles 34 (3) and 34 (2) of the Statute and 43 (2) of the Rules to participate in contentious cases (section 5.2.2). As for individuals, expert opinions under Article 50 of the Statute could represent a possibility to be heard in ICJ proceedings (section 5.2.3). 5.2.1  Articles 62 and 63 of the Statute: States

States have submitted applications for permission to intervene in ICJ contentious cases under the mechanisms of either discretional intervention (Article 62 Statute) or intervention ‘as of right’ (Article 63 Statute) (see Figure 5.3). Discretional intervention (Article 62 ICJ Statute) has been more broadly used,53 such as by (i) Fiji in both cases Nuclear Tests (New Zealand v. France)54 and (Australia v. France);55 (ii) Malta in Continental Shelf (Tunisia v. Libyan Jamahiriya);56 (iii) Italy in Continental Shelf (Libyan Jamahiriya v. Malta);57 (iv) Nicaragua in Land, Island and Maritime Frontier Dispute (El Salvador v. Honduras);58 (v) the Philippines in Sovereignty over Pulau Ligitan and Pulau Sipadan;59 (vi) Equatorial Guinea in Land and Maritime Boundary between Cameroon and Nigeria;60 (vii)

52 The Court has declined 11 of these applications to intervene, accepted seven (two of which the ICJ later considered lapsed), and has yet to decide upon 15 – all in the case concerning Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russia). 53  In only three of these cases the respective states were effectively included in the case as an intervener: Nicaragua in the Land, Island and Maritime Frontier Dispute case, Equatorial Guinea in the Land and Maritime Boundary case and Greece in the Jurisdictional Immunities of the State case. The court had admitted the applications of Fiji in both Nuclear Tests cases (New Zealand v. France and Australia v. France), but later on has considered that the applications lapsed. 54 Nuclear Tests (New Zealand v. France), Application for Permission to Intervene Submitted by the Government of Fiji, I.C.J. Reports 1973. 55  Nuclear Tests (Australia v. France), Application for Permission to Intervene Submitted by the Government of Fiji, I.C.J. Reports 1973. 56  Continental Shelf (Tunisia v. Libyan Arab Jamahiriya), Application for Permission to Intervene by the Government of the Republic of Malta, I.C.J. Reports 1981. 57  Continental Shelf (Libyan Arab Jamahiriya v. Malta), Application for Permission to Intervene of Italy, I.C.J. Reports 1983. 58 Land, Island and Maritime Frontier Dispute (El Salvador v. Honduras), Application for Permission to Intervene by the Government of Nicaragua, I.C.J. Reports 1989. 59 Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v. Malaysia), Application for Permission to Intervene by the Government of the Philippines, I.C.J. Reports 2001. 60  Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Application for Permission to Intervene by the Government of Equatorial Guinea, I.C.J. Reports 1999.

1 1 1 1 1 1 1

Connental Shelf (Tunisia v. Libya)

Connental Shelf (Libya v. Malta)

Military and Paramilitary Acvies (Nicaragua v. USA)

Land, Island and Marime Froner Dispute (El Salvador v. Honduras; Nicaragua intervening)

Request for an Examinaon of the Situaon in Accordance with Paragraph 63 of the Court's Judgment of 20 December 1974…

Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v. Malaysia)

Land and Marime Boundary (Cameroon v. Nigeria; Equatorial Guinea intervening)

0

1

Nuclear Tests (Australia v. France)

1

2

3

4

6

17 9

12

15

Arts. 62 and 63 Statute

Art. 63 Statute

Art. 62 Statute

18

NUMBER OF STATE APPLICATIONS FOR PERMISSION TO INTERVENE BEFORE THE ICJ

Allegaons of Genocide (Ukraine v. Russia)

Whaling in the Antarcc (Australia v. Japan; New Zealand intervening)

Jurisdiconal Immunies of the State (Germany v. Italy; Greece intervening) 1

1

Nuclear Tests (New Zealand v. France)

Territorial and Marime Dispute (Nicaragua v. Colombia)

1

Figure 5.3  Legal basis for state applications for permission to intervene in ICJ contentious cases.

CONTENTIOUS CASE PER YEAR

1951

1974

1982

1985

1991

1992

1995

2002

2012

pending case 2014

Haya de la Torre (Colombia v. Peru)

108  Wojcikiewicz Almeida and Cohen

Mapping the ‘Public’  109 Costa Rica and Honduras in Territorial and Maritime Dispute (Nicaragua v. Colombia);61 and, lastly, (viii) Greece in Jurisdictional Immunities of the State.62 As opposed to discretional intervention, third states had rarely used intervention ‘as of right’ up until recently.63 Third-party intervention under Article 63 of the ICJ Statute was used for matters of collective interest by (i) Cuba in the Haya de la Torre case;64 (ii) El Salvador in the case Military and Paramilitary Activities in and against Nicaragua;65 (iii) Samoa, the Solomon Islands, the Marshall Islands and the Federated States of Micronesia with respect to the case Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests;66 (iv) New Zealand in the Whaling in the Antarctic case;67 and, more recently, (v) Australia, Austria, Belgium, Bulgaria, Canada and the the Netherlands, Croatia, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, New Zealand, Norway, Poland, Portugual, Romania, Slovakia, Slovenia, Spain, Sweden, the United Kingdom of Great Britain and Northern Ireland and the United States of America in the case concerning Allegations of Genocide (Ukraine v. Russia).68 In the same case, Article 34 (2) of the Statute was used for the first time by the European Union.69 Lastly, the following case received four states’ applications for permission to intervene under both Articles 62 and 63 of the ICJ Statute: Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests.70

61 Territorial and Maritime Dispute (Nicaragua v. Colombia), Applications for Permission to Intervene, I.C.J. Reports 2010. 62  Jurisdictional Immunities of the State (Germany v. Italy), Application for Permission to Intervene submitted by the Hellenic Republic, I.C.J. Reports 2011. 63  Intervention under Art. 63 has yet only been admitted before the ICJ in two cases: in the Haya de la Torre case, concerning Cuba’s request, and in the Whaling in the Antarctic case, in respect of New Zealand’s request. 64 Haya de La Torre (Colombia v. Peru), Declaration of Intervention by the Government of Cuba, I.C.J. Reports 1951. 65  Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Declaration of Intervention of the Republic of El Salvador, I.C.J. Reports 1984. 66  Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) Case, I.C.J. Reports 1995. 67  Whaling in the Antarctic (Australia v. Japan – New Zealand Intervening), Declaration of Intervention by New Zealand, I.C.J. Reports 2012. 68 Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation), Order of 5 June 2023. Available at: accessed 11 June 2023. 69 See section I​.A​.​ii. 70  Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France), Applications for Intervention, I.C.J. Reports 1995. Available at: accessed 29 November 2022.

110  Wojcikiewicz Almeida and Cohen 5.2.2  Articles 34 (3) and 34 (2) of the Statute and 43 (2) of the Rules: IGOs

In contentious cases, most notifications received by IGOs were based on Article 34 (3) of the Statute, often combined with the procedural provision of Article 43 (2) of the Rules of Court. Article 34 (3) represents a direct avenue for participation, which remains dependent upon notification by the court, and establishes a parallel between third states and international organisations that are parties to a convention whose interpretation is being discussed before the court. All ICJ notifications based on Article 34 (3) were exclusively limited to intergovernmental organisations. This can be explained by the narrow interpretation of a ‘public international organisation’, mentioned in Article 34 (2) and (3), as ‘an international organisation of states’, as defined in Article 69 (4) of the Rules of Court, therefore excluding any submission made by NGOs. Therefore, any public international organisation duly notified may submit its written observations on the particular provisions of a convention before the closure of the written proceedings and, if the Court so desires, be able to ‘require such information to be supplemented, either orally or in writing’ (Article 69 (2) of the Rules). The procedure to be followed in this case is provided for in Article 69 (3) of the Rules, which determines that the submission should be in the form of a Memorial. To date, all submissions have been exclusively in the written form.71 It is relevant to note that the international organisation submitting written observations will not be bound by the Court’s interpretation, as opposed to third-party intervention proceedings.72 Over its history, the ICJ issued 45 notifications for IGOs to submit information. Besides, requests to submit observations to the court were submitted by one NGO and one IGO, as can be drawn from Figure 5.4. Empirical data confirms that IGOs appear as the actor that has received the highest amount of notifications in ICJ contentious cases. However, despite the court’s effort to notify IGOs potentially interested in submitting information, the avenue for participation in the contentious proceedings is yet underused by notified IGOs. There were several cases in which the ICJ could have used the legal basis of Article 34 (3) to address notifications to IGOs for the submission of observations, but failed to do so; this is coupled with situations in which IGOs could have been more active in submitting information to the court.73

71 Astrid Wiik, Amicus Curiae before International Courts and Tribunals (Nomos and Hart Publishing 2018) 318. 72  Giorgio Gaja, ‘A New Way for Submitting Observations on the Construction of Multilateral Treaties to the International Court of Justice’ in Ulrich Fastenrath, Rudolf Geiger, Daniel-Erasmus Khan, Andreas Paulus, Sabine von Schorlemer and Christoph Vedder (eds), From Bilateralism to Community Interest: Essays in Honour of Bruno Simma (Oxford University Press 2011) 670. 73  See cases: Aerial Incident of 27 July 1955 (Israel v. Bulgaria); South West Africa (Liberia v. South Africa); Corfu Channel (United Kingdom v. Albania); U.S. Nationals in Morocco (France v. USA); East Timor (Portugal v. Australia); Fisheries Jurisdiction (Spain v. Canada); Breard (Paraguay v. USA); LaGrand (Germany v. USA); Avena (Mexico v. USA); Gabcikovo-Nagymaros (Hungary v.

Art. 34 (3) Statute

Art. 43 (2) Rules

IGOS MORE OFTEN ENROLED IN MANIFESTATIONS OF FORMAL PARTICIPATION PER LEGAL BASIS

1 1 1 1

Unesco

World Health Organizaon (WHO)

African Union Commission (AUC)

Internaonal Whaling Commission (IWC)

0

1

Permanent Commission for the South Pacific (CPPS)

1 1 1

European Community (European Economic Community)

Internaonal League for the Rights of Man

European Union

European Union

1

Internaonal Civil Aviaon Organizaon (ICAO)

Organizaon of American States (OAS / OEA)

3

2

7 7

6

2

9

12

15

NGO request for permission to submit observaons declined by the Court

IGO request for permission to submit observaons awaing Court's decision

ICJ noficaon for submission of observaons unanswered by an IGO

ICJ noficaon for submission of observaons declined by an IGO

ICJ noficaon accepted by an IGO - Wrien observaon submied to the Court

12

NUMBER OF MANIFESTATIONS OF FORMAL PARTICIPATION

2

6

18

Figure 5.4  IGOs more often notified by the court in contentious cases per ICJ legal bases, according to the outcome of the notifications.

Art. 34(2) Statute

United Naons

Mapping the ‘Public’  111

112  Wojcikiewicz Almeida and Cohen In addition, although important international organisations such as the United Nations and the Organisation of American States (OAS) were the two most notified organisations under Article 34 (3) of the Statute, they did not submit observations in any proceedings. In only one case has an organisation responded positively to an ICJ notification. Yet, the impact of the ICAO observations on the court’s decision in the case Aerial Incident of 3 July 1988 could not be assessed since the case was discontinued before judgment.74 In practice, Article 34 (2) was only referred to in the text of two requests to submit information to the ICJ. The first came from an NGO, the International League for the Rights of Man, in the Asylum case. The League’s request for participation was declined by the Court.75 The second request was submitted by the European Union under Art 34 (2) of the ICJ Statute76 in the case concerning Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russia).77 It was the first time an IGO made use of Article 34 (2). If this provision is currently underused, the blame should also be shouldered by international organisations, which are able to present information on their own initiative and have yet to explore the potentials of Article 34 (2). As put by Dupuy and Hoss, ‘international organisations do not seem to be particularly interested in taking the initiative’.78 5.2.3  Article 50 of the Statute: Individuals

Article 50 of the ICJ Statute allows the court to entrust any individual, body, bureau, commission or other organisation to carry out an enquiry or give an expert

Slovakia); Aerial Incident of 10 August 1999 (Pakistan v. India); Pulp Mills (Argentina v. Uruguay); Legality of Use of Force. 74 On 22 February 1996, the parties to the dispute jointly notified the ICJ that their Governments had entered into a Settlement Agreement and agreed to the discontinuance of the case. See Aerial Incident of 3 July 1988 (Iran v. USA), Settlement Agreement, I.C.J. Reports 1996, para 649 accessed 29 November 2022; Aerial Incident of 3 July 1988 (Islamic Republic of Iran v. United States of America), Order of 22 February 1996, I.C.J. Reports 1996. 75 The Registrar made it clear that Article 34 of the Statute finds no application to organisations that ‘cannot be characterised as a public international organisation as envisaged by Statute’ (Asylum [Colombia v. Peru], Correspondence, 16 March 1950, I.C.J. Reports 1950, paras 227–228 accessed 29 November 2022. 76  Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation), I.C.J. Press release 2022/29 accessed 29 November 2022. 77  Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation), Applications for Intervention, I.C.J. Reports 2022 available at accessed 29 November 2022. 78 Pierre-Marie Dupuy and Cristina Hoss, ‘Article 34’ in Andreas Zimmermann, Christian J. Tams, Karin Oellers-Frahm and Christian Tomuschat (eds), The Statute of the International Court of Justice: A Commentary (3rd edn, Oxford University Press 2019) para 17.

Mapping the ‘Public’  113 opinion at any time.79 For this reason, Article 50 could provide a potential avenue for the court to invite individuals, NGOs or IGOs to participate in contentious cases in the capacity of experts or enquirers.80 Scholars suggest that the Court should take advantage of its existing powers to allow individuals directly concerned to participate before ICJ contentious proceedings in order to provide the Court with their own version of the facts and legal opinion.81 Although the ICJ’s scant practice does not indicate the Court’s intention to interpret expansively the scope of individuals’ capacity under Article 50,82 this provision does not proscribe that expert opinions have to relate to technical or scientific issues. It could be sufficiently broad in order to cover the appointment of other types of experts, such as linguistic experts or other specialised individuals.83 Judge Anzilotti suggested, during the debates surrounding the 1926 Revision of the Permanent Court of International Justice (PCIJ) Rules of Procedure, that these experts could not only be individuals but also private organisations.84 The recent appointment of experts in the Armed Activities (DRC v. Uganda) case illustrates the possibilities of expanding the scope of Article 50, as the Court entrusted experts to calculate the ‘global sum’ for determining compensatory 79 This provision is complemented by Articles 67 and 68 of the Rules of Court, and has to be read in conjunction with the more general provisions of Articles 48 and 49 of the Statute. Art. 48 recognises the Court’s inherent power to take the necessary measures to organise and control the judicial process (see Santiago Torres-Bernardez, Makane Moïse Mbengue, ‘Article 48’ in Andreas Zimmermann, Christian J. Tams, Karin Oellers-Frahm and Christian Tomuschat [eds], The Statute of the International Court of Justice: A Commentary [3rd edn, Oxford University Press 2019]); whilst Article 49 allows the court to obtain information from the parties by way of documents or explanations (see Christian Tams and James Devaney, ‘Article 50’ in Andreas Zimmermann, Christian J. Tams, Karin Oellers-Frahm and Christian Tomuschat [eds], The Statute of the International Court of Justice: A Commentary [3rd edn, Oxford University Press 2019]). 80 Lance Bartholomeusz, ‘The Amicus Curiae before International Courts and Tribunals’ (2005) 5 Non-State Actors and International Law 209, 214; Paolo Palchetti, ‘Opening the International Court of Justice to Third States – Intervention and Beyond’ in Jochen A. Frowein et al. (eds), Max Planck Yearbook of United Nations Law (vol 6, Kluwer Law International 2002) 170. 81 Shabtai Rosenne, ‘Reflections on the Position of the Individual in Inter State Litigation in the International Court of Justice’ in Pieter Sanders (ed), International Arbitration: Liber Amicorum for Martin Domke (Martinus Nijhoff 1967) 244. 82 Lance Bartholomeusz, ‘The Amicus Curiae before International Courts and Tribunals’ (2005) 5 Non-State Actors and International Law 209, 216–217. 83 Christian Tams, ‘Article 49, Article 50 e Article 51’ in Andreas Zimmermann, Christian J. Tams, Karin Oellers-Frahm and Christian Tomuschat (eds), The Statute of the International Court of Justice: A Commentary (3rd edn, Oxford University Press 2019) 1435. See, for example, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Order of 8 September 2020, I.C.J. Reports 2020; Paolo Palchetti, ‘Opening the International Court of Justice to Third States – Intervention and Beyond’ in Jochen A. Frowein et al. (eds), Max Planck Yearbook of United Nations Law (vol 6, Kluwer Law International 2002) 170. 84 Permanent Court of International Justice, Acts and Documents concerning the Organisation of the Court, Series D. Addendum to No 2 Revision of the Rules of Court, Detailed Minutes of the Meetings of the Court Concerning the Revision of the Rules of Court (1926) 224–225. See also Dinah Shelton, ‘The Participation of Nongovernmental Organisations in International Judicial Proceedings’ (1994) 88 (4) The American Journal of International Law 611, 627.

114  Wojcikiewicz Almeida and Cohen reparations for mass violations of human rights and humanitarian law. Scholars have criticised the court-appointed experts’ methodology for calculating the reparation as well as the missed opportunity for the court to hear directly from survivors and the families of individuals who suffered from the violations.85 Therefore, existing mechanisms could enable the Court to broaden the forms of participation by individuals and other actors. However, practice illustrates that the ICJ has been reluctant to appoint representatives of organisations as expert witnesses and has only designated individuals.86 IGOs and NGOs, from their side, have not actively explored the potential of this provision.87 The Court has hitherto employed Article 50 as the legal basis for requesting expert opinions from nine individuals in five cases (see Figure 5.5).88 In the Corfu Channel case,89 instituted in 1947, the court adopted three orders concerning the appointment of experts.90 In the Gulf of Maine case,91 as provided for in the Special Agreement between the parties, the Chamber appointed an expert to assist it in technical matters.92 In the Caribbean Sea cases between Costa Rica

85 See Diane Desierto, ‘The International Court of Justice’s 2022 Reparations Judgment in DRC v. Uganda: “Global Sums” as the New Device for Human Rights-Based Inter-State Disputes’ (EJIL Talk!, 14 February 2022) accessed 29 September 2022. 86 International Law Association, ‘Report on “Non State Actors”’ (Sofia Conference, 2012) p. 20. 87 Lance Bartholomeusz, ‘The Amicus Curiae before International Courts and Tribunals’ (2005) 5 Non-State Actors and International Law 215. See also Dinah Shelton, ‘The Participation of Nongovernmental Organisations in International Judicial Proceedings’ (1994) 88 (4) The American Journal of International Law 611, 628. 88 See Corfu Channel and the Caribbean Sea cases (Maritime Delimitation in the Caribbean Sea and the Pacific Ocean; Land Boundary in the Northern Part of Isla Portillos). 89 Corfu Channel (United Kingdom v. Albania), Judgment of December 15th, 1949, I.C.J. Reports 1949. 90 Santiago Torres-Bernardez and Makane Moïse Mbengue, ‘Article 48’ in Andreas Zimmermann, Christian J. Tams, Karin Oellers-Frahm and Christian Tomuschat (eds), The Statute of the International Court of Justice: A Commentary (3rd edn, Oxford University Press 2019) para 70. 91 Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v. USA), Judgment, I.C.J. Reports 1984. 92 Ibid., 253 (art II.3 of the Compromis); see also Santiago Torres-Bernardez and Makane Moïse Mbengue, ‘Article 48’ in Andreas Zimmermann, Christian J. Tams, Karin Oellers-Frahm and Christian Tomuschat (eds), The Statute of the International Court of Justice: A Commentary (3rd edn, Oxford University Press 2019) para 71; Daniel Peat, ‘The Use of Court-Appointed Experts by the International Court of Justice’ (2013) 84 British Yearbook of International Law 271, 9. Although the Agreement, when determining the use of an expert opinion, did not refer to Article 50 of the Statute, the Court explicitly referred to it in the (Delimitation of the Maritime Boundary in the Gulf of Maine Area, Appointment of Expert, Order of 30 March 1984, I.C.J. Reports 1984); see also Daniel Peat, ‘The Use of Court-Appointed Experts by the International Court of Justice’ (2013) 84 British Yearbook of International Law 271.

1949

Corfu Channel (UK v. Albania)

1984

Delimitaon of the Marime Boundary in the Gulf of Maine Area (Canada v. USA)

2

1

Marime Delimitaon in the Caribbean Sea and the Pacific Ocean (Costa Rica v. Nicaragua)

2

Land Boundary in the Northern Part of Isla Porllos (Costa Rica v. Nicaragua)

2

2018 2022

CONTENTIOUS CASE PER YEAR

Mapping the ‘Public’  115

Armed Acvies on the Territory of the Congo (DRC v. Uganda)

4 0

1

2

3

4

NUMBER OF ICJ NOTIFICATIONS TO INDIVIDUALS Art. 50 Statute - ICJ noficaon accepted by an individual - Expert opinion submied to the Court

Figure 5.5  Number of ICJ notifications to expert individuals in contentious cases per ICJ legal basis, according to the outcome of the notifications.

and Nicaragua (Maritime Delimitation93 and Isla Portillos94), which were joined by the order of 2 February 2017,95 the court decided to seek an expert opinion, by reference to Articles 48 and 50 of the Statute.96 An apparent proprio motu decision of the ICJ, this case could represent a response to the recent criticisms of the court’s underuse of Article 50 of the Statute concerning the exercise of its fact-finding 93 Maritime Delimitation in the Caribbean Sea and the Pacific Ocean and Land Boundary in the Northern Part of Isla Portillos (Costa Rica v. Nicaragua), Expert Opinion of 30 April 2017, I.C.J. Reports 2017, paras 1–88 accessed 29 November 2022. 94 Maritime Delimitation in the Caribbean Sea and the Pacific Ocean and Land Boundary in the Northern Part of Isla Portillos (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports 2018, paras 71–73, 77, 80, 86. The full text of the Expert Opinion is available in the proceedings of Maritime Delimitation (Costa Rica v. Nicaragua). 95 Maritime Delimitation in the Caribbean Sea and the Pacific Ocean and Land Boundary in the Northern Part of Isla Portillos (Costa Rica v. Nicaragua), Order of 2 February 2017, I.C.J. Reports 2017. 96 Maritime Delimitation in the Caribbean Sea and the Pacific Ocean and Land Boundary in the Northern Part of Isla Portillos (Costa Rica v. Nicaragua), Order of 31 May 2016, I.C.J. Reports 2016, p. 235 et seq.; Order of 16 June 2016, I.C.J. Reports 2016, p. 240 et seq.; see also Santiago Torres-Bernardez and Makane Moïse Mbengue, ‘Article 48’ in: Andreas Zimmermann, Christian J. Tams, Karin Oellers-Frahm and Christian Tomuschat (eds), The Statute of the International Court of Justice: A Commentary (3rd edn, Oxford University Press 2019) para 73.

116  Wojcikiewicz Almeida and Cohen powers.97 In the Armed Activities (DRC v. Uganda) case,98 after having heard the parties, by the order of 12 October 2020,99 the court appointed four experts to submit an opinion. According to Judge Yusuf’s speech at the 75th session of the United Nations General Assembly, held on 2 November 2020,100 the Court considered that the estimates submitted by the Democratic Republic of the Congo (DRC) in the case raised questions of a technical nature for which the court could benefit from the assistance of experts. In other occasions, the Court either has rejected the parties’ requests to commission an expert opinion or has concluded proprio motu that such an appointment was unnecessary,101 although in some cases judges in their dissenting or separate opinions suggested the use of Article 50 in order to evaluate factual evidence.102 These situations could be seen as missed opportunities for the formal participation of individuals or other actors, such as NGOs and IGOs.103 5.3 Informal Avenues of Participation in Contentious Proceedings The insufficiency of the statutory avenues for amici curiae participation before the World Court has given way to indirect avenues of participation by the international civil society in bilateral disputes that concern community interests. The empirical analysis of documents, such as written statements, the Court’s correspondence

  97 Christian J. Tams and James G. Devaney, ‘Part Three Statute of the International Court of Justice, Ch.III Procedure, Article 50’ in Andreas Zimmermann, Christian J. Tams, Karin Oellers-Frahm and Christian Tomuschat (eds), The Statute of the International Court of Justice: A Commentary (3rd edn, Oxford University Press 2019) para 10.   98 Armed Activities on the Territory of the Congo (DRC v. Uganda), Judgment, I.C.J. Reports 2005, p. 168.   99 Armed Activities on the Territory of the Congo (DRC v. Uganda), Order of 12 October 2020, I.C.J.Reports 2020, p. 295. 100 See Abdulqawi Ahmed Yusuf, President of the International Court of Justice, ‘Speech’ (SeventyFifth Session of the United Nations General Assembly, New York, 2 November 2020) accessed 30 November 2022. 101 Christian J. Tams and James G. Devaney, ‘Part Three Statute of the International Court of Justice, Ch.III Procedure, Article 50’ in Andreas Zimmermann, Christian J. Tams, Karin Oellers-Frahm and Christian Tomuschat (eds), The Statute of the International Court of Justice: A Commentary (3rd edn, Oxford University Press 2019) para 9. 102 Daniel Peat, ‘The Use of Court-Appointed Experts by the International Court of Justice’ (2013) 84 British Yearbook of International Law 271, 13. 103 See Temple of Preah Vihear (Cambodia v. Thailand), Merits, Judgment of 15 June 1962, I.C.J. Reports 1962; Kasikili/Sedudu Island (Botswana v. Namibia), Judgment, I.C.J. Reports 1999; Maritime Delimitation and Territorial Questions Between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment, I.C.J. Reports 2001; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Merits, Judgment, I.C.J. Reports 1986; Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, pp. 77–78, para 190; Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), Judgment, I.C.J. Reports 2014; Gabcikovo-Nagymaros Project (Hungary v. Slovakia), Judgment, I.C.J. Reports 1997.

Mapping the ‘Public’  117 containing a request for participation,104 as well as dissenting and separate opinions of Judges identified other informal avenues of participation.105 The empirical research could not identify such informal participation within the results brought by the referred keywords, since these occurrences (i) are often implicit, (ii) do not benefit from a specific legal basis or legal institute and (iii) are rather indirect, i.e., other actors’ contributions came to the court’s attention by the mediation of the action of one of the parties to the dispute (for example, by the resource of a state’s diplomatic protection of the interests of an individual). For that reason, document research based on materials published in books, articles, documents and reports was conducted in order to obtain a qualitative analysis on the matter of informal participation in ICJ contentious cases. Notably, NSAs briefs concerning a specific dispute may be introduced as part of the disputing states’ submissions (see section 5.3.1). Finally, other forms of participation include that of other actors furnishing information relevant to the institution of proceedings or to the judgment of the case (section 5.3.2) and actors involved in information considered and used by the Court as public domain (section 5.3.3).106 Some cases also might demonstrate an ancillary influence of individuals in proceedings, notably whenever national companies have their interests protected by states via diplomatic protection.107 5.3.1  Briefs Introduced as Part of Disputing States’ Submissions

Notably, states may be a useful vehicle to indirectly transmit information originally provided by other actors, such as NGOs, IGOs and individuals. Amicus curiae briefs may therefore be introduced as part of states’ submissions. This occurred as an illustration in cases involving environmental protection, such as the GabcikovoNagymaros case, in which NSAs indirectly submitted briefs as part of the disputing

104 Whenever available, the exchange of correspondence was taken into account in this research. 105 The empirical research could not identify such informal participation within the results brought by the referred keywords, since these occurrences (i) are often implicit, (ii) do not benefit from a specific legal basis or legal institute and (iii) are rather indirect, i.e., other actor’s contributions came to the court’s attention by the mediation of the action of one of the parties to the dispute (for example, by the resource of a state’s diplomatic protection of the interests of an individual). For that reason, a document research based on materials published in books, articles, documents and reports was conducted in order to obtain a qualitative analysis on the matter of informal participation in ICJ contentious cases. 106 The cases mentioned below represent only an illustration of the avenues for informal/indirect participation of NSAs before the ICJ since empirical research was not able to map all situations in which there were attempts of participation by other means falling outside the court’s Statute or Rules. 107 See, for instance: Diallo (Republic of Guinea v. Democratic Republic of the Congo), Application instituting proceedings, I.C.J. Reports 1998, p. 3 accessed 29 November 2022; Elettronica Sicula S.p.A. (ELSI) (United States v. Italy), Judgment, I.C.J. Reports 1989; Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection, Judgment, I.C.J. Reports 1996; Anglo-Iranian Oil Co. (United Kingdom v. Iran), Judgment of July 22nd, I952: I.C.J. Reports 1952.

118  Wojcikiewicz Almeida and Cohen parties’ submissions,108 in particular, in the ‘scientific reports’ referred to in the annexes of the Memorials.109 Such submissions would not be technically considered amicus curiae briefs since they were included in the written submissions of a state.110 In any event, the possibility of asking one of the parties to annex the information to its submissions without necessarily adopting the views as its own would represent an avenue for organisations wishing to make their views known to the court.111 Hungary submitted a list of NSAs’ reports as annexes to its Memorial.112 The annexes to Slovakia’s Memorial113 also presented reports from NGOs. It is worth noting that a number of the referred NSAs reports were directly mentioned by the Court in its judgment

108 The reports were specifically prepared by organisations and individuals endowed with relevant competence related to the dispute at hand, i.e., over the construction and operation of the Gabcikovo-Nagymaros barrage system and the construction and operation of the project’s ‘provisional solution’. 109 Although the Court allowed for the filling of Counter-Memorials and Replies in this proceeding, only the reports annexed to the first written documents of each disputing party, i.e., the Memorials, were systematically analysed for the purpose of this research (see Gabcikovo-Nagymaros [Hungary v. Slovakia], Order of 14 July 1993, I.C.J. Reports 1993; Order of 20 December 1994, I.C.J. Reports 1994). 110 Eric De Brabandere, supra note 18, at supra note 18, at 92. 111 Dinah Shelton, ‘The Participation of Nongovernmental Organisations in International Judicial Proceedings’ (1994) 88 (4) The American Journal of International Law 611, 628. 112 These reports were issued by the following NGOs: the Hungarian Academy of Sciences (HAS); the INFORT’s and Ecologia’s study teams; the Committee of Independent Specialists of the Hardi Report; the Hydro-Québec International; the Cousteau Society; the Working Group of Independent Experts of the Commission of the European Communities (before the Treaty of Lisbon and its absorption by the European Commission); the Slovak Union of Nature and Landscape Protectors (SZOPK) and the Slovak Rivers Network (SRN); and the World Wildlife Fund (WWF). See Gabcikovo-Nagymaros (Hungary v. Slovakia), Memorial of the Republic of Hungary, volume V, annexes, part I, I.C.J. Reports 1994 accessed 29 November 2022; see also Memorial of the Republic of Hungary, volume V, annexes, part II, I.C.J. Reports 1994 accessed 29 November 2022. 113 NGOs such as the Hungarian Academy of Sciences; the Working Group of Independent Experts of the Commission of the European Communities; the International Energy Agency; the Committee of Independent Specialists of the ‘Massachusetts Study’; the Committee of Independent Specialists of the Bechtel Report; the Committee of Independent Specialists of the HQI Report; the Hungarian National Water Investment Company (OVIBER); the West-European Union of Chambers of Commerce and Industry of the Rhine, Rhone and Danube Regions; the Czechoslovak-Hungarian Committee for Economic and Scientific-Technical Cooperation; and the Austrian Society of Fluvial and Maritime Navigation. One IGO, the Danube Commission, presented a report, and transcripts of interviews with two individuals (Emil Mosunyi, a Hungarian Academician, and Professor Dr Vagas, a hydrologist) were also submitted. See Gabcikovo-Nagymaros (Hungary v. Slovakia), Memorial of the Republic of Slovakia, volume II, annexes, I.C.J. Reports 1994 accessed 29 November 2022; see also Memorial of the Republic of Slovakia, volume III, annexes, I.C.J. Reports 1994 accessed 29 November 2022; and Memorial of the Republic of Slovakia, volume IV, annexes, I.C.J. Reports 1994 accessed 29 November 2022.

Mapping the ‘Public’  119 of 25 September 1997 as being soft law instruments.114 This can be extracted from mentions, in the text of the judgment, of the (i) observations produced by the ad hoc Committee of the Hungarian Academy of Sciences;115 and of the (ii) meetings of the Working Group of Independent Experts of the Commission of the European Communities.116 Similar examples can be traced in the practice of other international courts and tribunals. Therefore, states’ submissions can also be a vehicle to ensure the participation of other actors that remain deprived of direct access to the ICJ, such as NGOs and individuals. These actors could either request to include information as annexes to the disputing parties’ own submissions,117 following the same practice of the dispute settlement bodies of the World Trade Organization (WTO)118 and North American Free Trade Agreement (NAFTA),119 or could provide such information to newspapers or other public sources to be used by the Court as public domain information,120 in accordance with the Military and Paramilitary (Nicaragua v. USA) case.121 5.3.2  Relevant Information to the Institution of Proceedings or to the Judgment of the Court

Other forms of informal participation include that of other actors playing an important role in the institution of proceedings or in the judgment of the case by furnishing information relevant to the parties, notably in cases regarding human rights violations. In Obligation to Prosecute or Extradite (Belgium v. Senegal),122 Human Rights Watch was said to have influenced Belgium’s initiative to file an application before the ICJ.123 The dispute concerned the prosecution of Hissène Habré,

114 Gabcikovo-Nagymaros (Hungary v. Slovakia), Judgment, I.C.J. Reports 1997. See also Andrew T. Guzman and Timothy L. Meyer, ‘International Common Law: The Soft Law of International Tribunals’ (2008) 9 Chicago Journal of International Law 515, 525–526. 115 Gabcikovo-Nagymaros (Hungary v. Slovakia), Judgment, I.C.J. Reports 1997, pp. 32, 44, paras 35, 56. 116 Ibid., p. 50, para 65. 117 See Jona Razzaque, ‘Changing Role of Friends of the Court in the International Courts and Tribunals’ (2002) 1 Non-State Actors and International Law 169, 172. 118 World Trade Organization, United States: Import Prohibition of Certain Shrimp and Shrimp Products, Report of the Appellate Body, 12 October 1998, WT/DS58/AB/R. 119 Lance Bartholomeusz, ‘The Amicus Curiae before International Courts and Tribunals’ (2005) 5 Non-State Actors and International Law 209, 216. 120 International Law Association, ‘Report on “Non State Actors”’ (Sofia Conference, 2012) p. 22. 121 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Merits, Judgment. I.C.J. Reports 1986. 122 Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports 2012. 123 See Pierre-Marie Dupuy and Cristina Hoss, ‘Article 34’ in Andreas Zimmermann, Christian J. Tams, Karin Oellers-Frahm and Christian Tomuschat (eds), The Statute of the International Court of Justice: A Commentary (3rd edn, Oxford University Press 2019) para 4.

120  Wojcikiewicz Almeida and Cohen the former President of Chad residing in Senegal, accused of acts of torture and crimes against humanity.124 Belgium submitted that Senegal had violated the erga omnes partes obligation to prosecute or extradite as provided for in Article 7 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.125 In The Gambia v. Myanmar case,126 The Gambia’s application concerned alleged violations of the Convention on the Prevention and Punishment of the Crime of Genocide and was supported by documents and statements provided by the Organisation of Islamic Cooperation (OIC).127 The referred violations were denounced by several human rights protection organisations, such as Human Rights Watch and the United Nations Independent International Fact-Finding Mission.128 Indeed, the UN Mission encouraged other states and organisations, such as The Gambia and the Organisation of Islamic Cooperation, to file an application against Myanmar.129 The case concerns the first time a state party to the Genocide Convention brought a dispute before the ICJ under Article IX of the Convention, and this without any direct connection with the alleged violations.130 In its order on provisional measures, the court concluded that The Gambia had acted in its own name and pursued its own rights and interests under the Genocide Convention,131 irrespectively of the eventual support it may have received from other states and ‘international organisations’.132

124 Ibid. 125 Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports 2012, p. 449, para 68. 126 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Provisional Measures, Order of 23 January 2020, I.C.J. Reports 2020, p. 8, para 23. 127 Human Rights Watch, ‘Questions and Answers on Gambia’s Genocide Case against Myanmar before the International Court of Justice’ (Human Rights Watch, 5 December 2019) para 1 accessed 30 November 2022. 128 Ibid., paras 4–5. 129 United Nations High Commissioner for Human Rights, Report of the Independent International Fact-Finding Mission on Myanmar, A/HRC/42/50, 8 August 2019, para 18, 107. See also United Nations Human Rights: Office of the High Commissioner, ‘Myanmar: UN Fact-Finding Mission releases its full account of massive violations by military in Rakhine, Kachin and Shan States’ (18 September 2018) accessed 30 November 2022. 130 Human Rights Watch, ‘Questions and Answers on Gambia’s Genocide Case against Myanmar before the International Court of Justice’ (Human Rights Watch, 5 December 2019) para 1 accessed 30 November 2022. 131 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Provisional Measures, Order of 23 January 2020, I.C.J. Reports 2020, pp. 8–9, para 25. 132 Myanmar alleged that the court had no jurisdiction, since The Gambia would be acting ‘rather as a ‘proxy’ and ‘on behalf of’ the OIC under Art. 34 of the ICJ Statute. See ibid.

Mapping the ‘Public’  121 5.3.3  Information Available in the Public Domain Transmitted by External Actors

Furthermore, information provided by other means and by other actors was also taken into account by the court on issues related to the preservation of peace and security, such as in Military and Paramilitary (Nicaragua v. USA).133 Being the first dispute to address issues regarding the use of force after the institution of the UN Charter, it was an occasion for the court to set forth parameters.134 Both parties, Nicaragua and the USA (before ceasing to participate in the proceedings), submitted to the court a large number of documentary materials of various kinds from various sources.135 The material included press articles’ reports; book extracts;136 and statements by states’ representatives: some appearing in the official records of states’ official organs and international or regional organisations, others reported by the press in interviews or press conferences.137 Even though the material seemed to meet high standards of objectivity, the court was careful enough not to consider them as evidence, but rather as auxiliary material, i.e., information for corroborating the existence of a fact.138 Hence, such information was admitted by the court as being in the public domain.139 Although newspaper information should not in itself be considered judicial evidence, the ICJ concluded that facts of public knowledge ‘may nevertheless be established by means of these sources of information, and the court can attach a certain amount of weight to such public knowledge’.140 This was not the first occasion the ICJ admitted information in the public domain. In United States Diplomatic and Consular Staff in Tehran (USA v. Iran)141 the Court referred to facts considered as matters of public knowledge, which have received extensive and international coverage by the press, radio and television.142

133 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Merits, Judgment. I.C.J. Reports 1986. 134 See Efthymios Papastavridis, ‘Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), 1986’ in Paula Wojcikiewicz Almeida and Jean-Marc Sorel (eds), Latin America and the International Court of Justice: Contributions to International Law (Routledge 2016) 211–222. 135 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Merits, Judgment. I.C.J. Reports 1986. 136 Ibid., p. 40, para 62. 137 Ibid., p. 41, para 64. 138 Ibid., p. 40, para 62. 139 Ibid., p. 41, para 65. 140 Ibid., pp. 40–41, para 63. 141 United States Diplomatic and Consular Staff in Tehran (United States v. Iran) Judgment, I.C.J. Reports 1980. 142 Ibid., pp. 9–10, paras 12–13.

122  Wojcikiewicz Almeida and Cohen 5.4 Conclusion International adjudication in general, and the ICJ in particular, contributes to the achievement of the interests of the international community.143 On this account, this research has confirmed that international litigation goes beyond the private concern of the parties in the proceedings,144 notably when community interestrelated topics are under discussion.145 The participation of state and NSAs may further international dispute-settlement debates in various capacities,146 both formally and informally.147 However, the existing tension between bilateralism and community interests also reflects in the treatment of procedural rules given by ICTs.148 Taking into account that procedure may undermine the promotion of community interests by the World Court,149 this research mapped formal and informal potential avenues of participation for state and NSAs in contentious proceedings before the ICJ and identified concrete procedural challenges. Although states remain the most active participants in contentious cases, the court has frequently invited public international organisations to submit their observations. States and IGOs may also be useful vehicles to indirectly transmit information originally provided by other actors, such as individuals. There appears to exist a connection between the number of statements submitted and the subjects dealt with, which concern community interest topics, such as self-determination,150

143 Paula Wojcikiewicz Almeida, ‘International Procedural Regulation in the Common Interest: The Role of Third-Party Intervention and Amicus Curiae before the ICJ’ (2019) 18 (2) The Law and Practice of International Courts and Tribunals 163, 186. 144 Dinah Shelton, ‘The Participation of Nongovernmental Organisations in International Judicial Proceedings’ (1994) 88 (4) The American Journal of International Law 611, 614-5. 145 See Rüdiger Wolfrum, ‘Enforcing Community Interests through International Dispute Settlement: Reality or Utopia?’ in Ulrich Fastenrath, Rudolf Geiger, Daniel-Erasmus Khan, Andreas Paulus, Sabine von Schorlemer and Christoph Vedder (eds), From Bilateralism to Community Interest: Essays in Honour of Judge Bruno Simma (Oxford University Press 2011), pp. 1133–1136; Bruno Simma, ‘From Bilateralism to Community Interest in International Law’ (1994) 250 Recueil des Cours de l’Académie de Droit International. 146 The role of non-state actors in litigation has increased, mainly with their participation in the form of NGOs. As put by Wagner, they can directly participate in proceedings as a party (sometimes as a third party), participate as amicus curiae or influence competent actors to bring cases. Markus Wagner, ‘Non-State Actors’ (2013) Max Planck Encyclopedia of Public International Law para 22. 147 ‘It is rather exceptional, however, that procedural rules provide ius standi rights to NSAs to initiate proceedings, and thus become full parties to a case’. See International Law Association, ‘Report on “Non State Actors”’ (Sofia Conference, 2012) p. 19. 148 Paula Wojcikiewicz Almeida, ‘International Procedural Regulation in the Common Interest: The Role of Third-Party Intervention and Amicus Curiae before the ICJ’ (2019) 18 (2) The Law and Practice of International Courts and Tribunals 163, 186. 149 Ibid. 150 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004. Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, I.C.J. Reports 2019.

Mapping the ‘Public’  123 genocide,151 questions related to frontiers, boundaries and territorial integrity152 and the threat or use of force, armament, disarmament and nuclear weapons.153 It might be argued, therefore, that ICJ proceedings could ‘offer an adequate framework’154 for expanding access to international justice, notably in cases concerning community interests. The Court’s adoption of Practice Direction XII seems to recognise the tendency towards the flexibilisation of procedural rules in favour of third parties, by reflecting the recognition of the relevant role played by NGOs in advisory proceedings concerning community interests. However, instead of facilitating access to documents by the general public, para 3 of Practice Direction XII indicates that written statements and documents submitted by NGOs would be closed away in a specific location at the Peace Palace and ‘may be consulted’ by states and IGOs. This practice is not in conformity with modern digital means of communication and may result in obstructing NGOs’ access to the Court.155 In order to ensure greater transparency, these documents should be placed on the court’s website in a manner to be accessible to the parties and the public at large.156 When it comes to contentious cases, scholars have advanced the idea that the adoption of a practice direction to recognise the potential contributions of individuals and NGOs, and the possibility of making greater use of the court’s factfinding power to appoint experts under Article 50 of the Statute – as a regular practice – whenever community interests are at stake157 would corroborate the tendency towards the flexibilisation of procedural rules.158

151 See the case Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation). 152 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, I.C.J. Reports 2010. 153 Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, I. C.J. Reports 1996; Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996. 154 Judgment No. 2867 of the Administrative Tribunal of the International Labour Organisation upon a Complaint Filed against the International Fund for Agricultural Development, Separate Opinion of Judge Cançado Trindade, I.C.J. Reports 2012, paras 113 and 114. 155 Andreas Paulus, ‘Article 66, Part Three Statute of the International Court of Justice, Chapter IV Advisory Opinions’ in Andreas Zimmermann, Christian J. Tams, Karin Oellers-Frahm and Christian Tomuschat (eds), The Statute of the International Court of Justice: A Commentary (3rd edn, Oxford University Press 2019) para 27. 156 Ibid. 157 Bruno Simma, ‘The International Court of Justice and Scientific Expertise’ (2012) 106 American Society of International Law Proceedings 230, 232–233. 158 The proposal of making greater use of the court’s power to appoint experts under Art. 50 of the Statute has been advanced by Loretta Malintoppi, Howard Wheater and Laurence Boisson de Chazournes, on the occasion of the 70th Anniversary of the Court’s first inaugural sitting (survey conducted in preparation for the Seminar in 2015), available in James Crawford and Amelia Keene, ‘Editorial’, (2016) Journal of International Dispute Settlement, 7, 225–230.

124  Wojcikiewicz Almeida and Cohen There is indeed a tendency in ICTs towards further ‘multilateralisation’ of procedural rules whenever community interests are at stake.159 The participation of members of the international community in the judicial law-making process has become one of the basic features of international law. However, ICJ rules of procedure seem to be outdated and certainly disconnected from the contemporary developments characterising the international community nowadays. Broadening the possibilities for participation of state and NSAs would imply the recognition of the plurilateral nature of international disputes and indirectly stimulate public interest in the work of the Court.160 This would require not only the expansion of the active legitimacy for submitting information in ICJ’s contentious and advisory proceedings but also the enlargement of its scope, notably when community interests are at stake.161 If the goal is to ‘introduce public interest considerations’, broadening the scope of thirdparty participation before the World Court could also contribute to upholding rules aimed at protecting fundamental values of the international community and, ultimately, strengthening the democratic legitimation of judicial decisions.162

159 Paula Wojcikiewicz Almeida, ‘International Procedural Regulation in the Common Interest: The Role of Third-Party Intervention and Amicus Curiae before the ICJ’ (2019) 18 (2) The Law and Practice of International Courts and Tribunals 163, 187; Markus Benzing, ‘Community Interests in the Procedure of International Courts and Tribunals’ (2006) 5 (3) The Law and Practice of International Courts and Tribunals 217, 408. 160 Shabtai Rosenne, The Law and Practice of the International Court, 1920–1996 vol II (Martinus Nijhoff 1997) 654–655. 161 However, for participation to be often associated with positive consequences, such as ensuring transparency, public participation and democracy (Avidan Kent and Jamie Trinidad, ‘Amicus Curiae Participation in International Proceedings: Forever Friends?’ in Avidan Kent et al. [eds], The Future of International Courts [Routledge 2019] 235), it must be assumed that these are impartial, neutral or independent (Anna-Karin Lindblom, Non-Governmental Organisations in International Law [Cambridge University Press 2005] 523–524). Yet, the practice of other ICTs shows that sometimes such participations have served as voices for ‘narrow, Western vested interests’, ‘while the same possibilities are not available to less affluent groups’ (Jona Razzaque, ‘Changing Role of Friends of the Court in the International Courts and Tribunals’ [2002] 1 Non-State Actors and International Law 171) or have engaged in advocacy (Avidan Kent and Jamie Trinidad, ‘Amicus Curiae Participation in International Proceedings: Forever Friends?’ in Avidan Kent et al. [eds], The Future of International Courts [Routledge 2019] 245). Other procedural drawbacks include an additional burden on registries, judges and parties to proceedings, a risk of unnecessarily prolonging proceedings or resulting in increased costs (Philippe Sands and Ruth Mackenzie, ‘International Courts and Tribunals, Amicus Curiae’ in Rüdiger Wolfrum [ed], Max Planck Encyclopedia of Public International Law [Oxford University Press 2009] para 30). There are also concerns that ‘opening the floodgates of courts’ might compromise the conduct of proceedings if a court receives a high level of submissions. 162 Paula Wojcikiewicz Almeida, ‘International Procedural Regulation in the Common Interest: The Role of Third-Party Intervention and Amicus Curiae before the ICJ’ (2019) 18 (2) The Law and Practice of International Courts and Tribunals 163, 187; Armin von Bogdandy and Ingo Venzke, In Whose Name? A Public Law Theory of International Adjudication (Oxford University Press 2014), p. 41.

Mapping the ‘Public’  125 Bibliography Treaties and UN Documents UN General Assembly, Review of the Procedure Provided for Under Article 11 of the Statute of the Administrative Tribunal of the United Nations, A/RES/50/54, 29 January 1996. International Court of Justice, Rules of Court, 14 April 1978. United Nations, Statute of the International Court of Justice, 18 April 1946. United Nations High Commissioner for Human Rights, Report of the Independent International Fact-Finding Mission on Myanmar, A/HRC/42/50, 8 August 2019. United Nations Human Rights: Office of the High Commissioner, ‘Myanmar: UN FactFinding Mission releases its full account of massive violations by military in Rakhine, Kachin and Shan States’ (18 September 2018) accessed 30 November 2022.

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126  Wojcikiewicz Almeida and Cohen Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment, I.C.J. Reports 2015. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Preliminary Objections, Judgment. I.C.J. Reports 2022. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Provisional Measures, Order of 23 January 2020, I.C.J. Reports 2020. Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports 2011. Application of the ICERD (Qatar v. UAE), Preliminary Objections, Judgment, I.C.J. Reports 2021. Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports 2019. Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947, Advisory Opinion, I.C.J. Reports 1988. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Order of 8 September 2020, I.C.J. Reports 2020. Armed Activities on the Territory of the Congo (DRC v. Uganda), Judgment, I.C.J. Reports 2005. Armed Activities on the Territory of the Congo (DRC v. Uganda), Order of 12 October 2020, I.C.J. Reports 2020. Armed Activities on the Territory of the Congo (DRC v. Uganda), Reparations, Judgment, I.C.J. Reports 2022. Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2006. Asylum (Colombia v. Peru), Judgment of November 20th 1950: I.C.J. Reports 1950. Asylum (Colombia v. Peru), Correspondence, 16 March 1950, I.C.J. Reports 1950 paras 227-228 accessed 29 November 2022. Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, I.C.J. Reports 2004. Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1988. Case concerning rights of nationals of the United States of America in Morocco, Judgment of August 27th, 1952: I.C.J. Reports 1952. Case concerning the Temple of Preah Vihear (Cambodia v. Thailand), Merits, Judgment of 15 June 1962: I.C.J. Reports 1962. Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Judgment, I.C.J. Reports 2015. Competence of the General Assembly for the Admission of a State to the United Nations, Advisory Opinion, I.C.J. Reports 1950. Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter), Advisory Opinion, I.C.J. Reports 1948. Continental Shelf (Libyan Arab Jamahiriya v. Malta), Judgment, I. C.J. Reports 1985.

Mapping the ‘Public’  127 Continental Shelf (Libyan Arab Jamahiriya v. Malta), Application for Permission to Intervene of Italy, I.C.J. Reports 1983. Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1982. Continental Shelf (Tunisia v. Libyan Arab Jamahiriya), Application for Permission to Intervene by the Government of the Republic of Malta, I.C.J. Reports 1981. Corfu Channel (United Kingdom v. Albania), Assessment of Compensation, Judgment, I.C.J. Reports 1949. Corfu Channel (United Kingdom v. Albania), Merits, Judgment, I.C.J. Reports 1949. Delimitation of the Maritime Boundary in the Gulf of Maine Area, Appointment of Expert, Order of 30 March 1984, I.C.J. Reports 1984. Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v. USA), Judgment, I.C.J. Reports 1984. Diallo (Republic of Guinea v. Democratic Republic of the Congo), Application instituting proceedings, I.C.J. Reports 1998, p. 3 accessed 29 November 2022. Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, I.C.J. Reports 1999. Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports 2009. East Timor (Portugal v. Australia), Judgment, I. C.J. Reports 1995. Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, Advisory Opinion, I.C.J. Reports 1954. Effect of Awards of Compensation Made by the UN Administrative Tribunal, Correspondence, 16 December 1953, I.C.J. Reports 1953, p. 390 accessed 30 November 2022. Elettronica Sicula S.P.A.(ELSI), Judgment, I.C.J.Reports 1989. Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, I. C.J. Reports 1998. Gabčíkovo-Nagymaros (Hungary v. Slovakia), Memorial of the Republic of Hungary, volume V, annexes, part I, I.C.J. Reports 1994 accessed 29 November 2022. Gabčíkovo-Nagymaros (Hungary v. Slovakia), Memorial of the Republic of Hungary, volume V, annexes, part II, I.C.J. Reports 1994 accessed 29 November 2022. Gabčíkovo-Nagymaros (Hungary v. Slovakia), Memorial of the Republic of Hungary, volume II, annexes, I.C.J. Reports 1994 accessed 29 November 2022. Gabčíkovo-Nagymaros (Hungary v. Slovakia), Memorial of the Republic of Hungary, volume III, annexes, I.C.J. Reports 1994 accessed 29 November 2022. Gabčíkovo-Nagymaros (Hungary v. Slovakia), Memorial of the Republic of Hungary, volume IV, annexes, I.C.J. Reports 1994 accessed 29 November 2022. Gabčíkovo-Nagymaros (Hungary v. Slovakia), Judgment, I.C.J. Reports 1997. Gabčíkovo-Nagymaros (Hungary v. Slovakia), Order of 14 July 1993, I.C.J. Reports 1993. Gabčíkovo-Nagymaros (Hungary v. Slovakia), Order of 20 December 1994, I.C.J. Reports 1994. Haya de La Torre (Colombia v. Peru), Declaration of Intervention by the Government of Cuba, I.C.J. Reports 1951.

128  Wojcikiewicz Almeida and Cohen Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, I.C.J. Reports 2010. International Status of South-West Africa, Advisory Opinion, I.C.J. Reports 1950. International Status of South-West Africa, Correspondence, 19 December 1949, p. 327 accessed 30 November 2022. Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion, I.C.J. Reports 1980. Interpretation of Peace Treaties, Advisory Opinion, I.C.J. Reports 1950. Judgment No. 2867 of the Administrative Tribunal of the International Labour Organisation upon a Complaint Filed against the International Fund for Agricultural Development, Advisory Opinion, I.C.J. Reports 2012. Jurisdictional Immunities of the State (Germany v. Italy), Application for Permission to Intervene submitted by the Hellenic Republic, I.C.J. Reports 2011. Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment, I.C.J. Reports 2012. Kasikili/Sedudu Island (Botswana v. Namibia), Judgment, I.C.J. Reports 1999. LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001. Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, I.C.J. Reports 2002. Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Application for Permission to Intervene by the Government of Equatorial Guinea, I.C.J. Reports 1999. Land Boundary in the Northern Part of Isla Portillos (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports 2018. Land, Island and Maritime Frontier Dispute (El Salvador v. Honduras), Application for Permission to Intervene by the Government of Nicaragua, I.C.J. Reports 1989. Land, Island and Maritime Frontier Dispute (El Salvador v. Honduras), Judgment, I.C.J. Reports 1992. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Correspondence, I.C.J. Reports 1970 accessed 30 November 2022. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Written Statement of Ireland on behalf of the European Union, 30 January 2004 accessed in 30 November 2022. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Written Statement of the League of Arab States, 30 January 2004 accessed 30 November 2022. Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, I.C.J. Reports 2019. Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Oral Statements: Verbatim record 2018/20, 3 September 2018, I.C.J. Reports 2018

Mapping the ‘Public’  129

accessed 30 November 2022. Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Written Statement of Mauritius, I.C.J. Reports 2018, p. 179-182, para 4.114 accessed 30 November 2022. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996. Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Oral Statement: Verbatim Record 1995/32, 14 November 1995, I.C.J. Reports 1995 accessed 30 November 2022. Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Oral Statement: Verbatim Record 1995/33, 14 November 1995, I.C.J. Reports 1995 accessed 30 November 2022. Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections, Judgment, I.C.J. Reports 2004. Legality of Use of Force (Serbia and Montenegro v. Canada), Preliminary Objections, Judgment, I.C.J. Reports 2004. Legality of Use of Force (Serbia and Montenegro v. France), Preliminary Objections, Judgment, I.C.J. Reports 2004. Legality of Use of Force (Serbia and Montenegro v. Germany), Preliminary Objections, Judgment, I.C.J. Reports 2004. Legality of Use of Force (Serbia and Montenegro v. Italy), Preliminary Objections, Judgment, I.C.J. Reports 2004. Legality of Use of Force (Serbia and Montenegro v. Netherlands), Preliminary Objections, Judgment, I.C.J. Reports 2004. Legality of Use of Force (Serbia and Montenegro v. Portugal), Preliminary Objections, Judgment, I.C.J. Reports 2004. Legality of Use of Force (Serbia and Montenegro v. United Kingdom), Preliminary Objections, Judgment, I.C.J. Reports 2004. Maritime Delimitation and Territorial Questions Between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment, I.C.J. Reports 2001. Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009. Maritime Delimitation in the Caribbean Sea and the Pacific Ocean and Land Boundary in the Northern Part of Isla Portillos (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports 2018. Maritime Delimitation in the Caribbean Sea and the Pacific Ocean and Land Boundary in the Northern Part of Isla Portillos (Costa Rica v. Nicaragua), Order of 2 February 2017, I.C.J. Reports 2017. Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports 2018. Maritime Delimitation in the Caribbean Sea and the Pacific Ocean and Land Boundary in the Northern Part of Isla Portillos (Costa Rica v. Nicaragua), Order of 16 June 2016, I.C.J. Reports 2016. Maritime Delimitation in the Caribbean Sea and the Pacific Ocean and Land Boundary in the Northern Part of Isla Portillos (Costa Rica v. Nicaragua), Order of 31 May 2016, I.C.J. Reports 2016.

130  Wojcikiewicz Almeida and Cohen Maritime Delimitation in the Indian Ocean (Somalia v. Kenya), Judgment, I.C.J. Reports 2021. Maritime Dispute (Peru v. Chile), Judgment, I.C.J. Reports 2014. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Declaration of Intervention of the Republic of El Salvador, I.C.J. Reports 1984. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Merits, Judgment. I.C.J. Reports 1986. Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974. Nuclear Tests (Australia v. France), Application to Intervene, Order of 20 December 1974, I.C.J. Reports 1974. Nuclear Tests (New Zealand v. France), Application for Permission to Intervene Submitted by the Government of Fiji, I.C.J. Reports 1973. Nuclear Tests (New Zealand v. France), Judgment, I.C.J. Reports 1974 Nuclear Tests (New Zealand v. France), Order of 20 December 1974, I.C.J. Reports 1974. Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, I. C.J. Reports 1996. Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom), Preliminary Objections, Judgment, I.C.J. Reports 2016. Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Judgment, I.C.J. Reports 2018. Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection, Judgment, I.C.J. Reports 1996. Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010. Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court's Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) Case, I.C.J. Reports 1995. Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court's Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France), Applications for Intervention, I.C.J. Reports 1995. Available at: accessed 29 November 2022. Reservations to the Convention on Genocide, Advisory Opinion: I.C.J . Reports 1951. South West Africa Cases (Ethiopia v South Africa; Liberia v South Africa), Preliminary Objections, I.C.J. Reports 1962. South West Africa, Second Phase, Judgment, I.C.J. Reports 1966. Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v. Malaysia), Application for Permission to Intervene by the Government of the Philippines, I.C.J. Reports 2001. Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v. Malaysia), Judgment, I.C.J. Reports 2002. Territorial and Maritime Dispute (Nicaragua v. Colombia), Applications for Permission to Intervene, I.C.J. Reports 2010. Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment, I.C.J. Reports 2007. Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J. Reports 2012.

Mapping the ‘Public’  131 Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 Nautical Miles from the Nicaraguan Coast (Nicaragua v. Colombia), Preliminary Objections, Judgment, I.C.J. Reports 2016. Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports 2012. United States Diplomatic and Consular Staff in Tehran, Judgment, I.C.J. Reports 1980. Vienna Convention on Consular Relations (Paraguay v. United States of America), Order of 10 November 1998, I.C.J. Reports 1998. Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), Judgment, I.C.J. Reports 2014.

Doctrine and Webpages Abdulqawi Ahmed Yusuf, President of the International Court of Justice, ‘Speech’ (SeventyFifth Session of the United Nations General Assembly, New York, 2 November 2020)

accessed 30 November 2022. Human Rights Watch, ’Questions and Answers on Gambia’s Genocide Case against Myanmar before the International Court of Justice’ (Human Rights Watch, 5 December 2019) accessed 30 November 2022. International Civil Aviation Organisation, Observations of the International Civil Aviation Organisation, 4 December 1992 accessed 9 December 2022. Almeida PW, ‘International Procedural Regulation in the Common Interest: The Role of Third-Party Intervention and Amicus Curiae before the ICJ’ (2019) 18 (2) The Law and Practice of International Courts and Tribunals 163. d’Aspremont J, ‘Non-state actors in international law: oscillating between concepts and dynamics’ in d’Aspremont J (ed), Participants in the international legal system: multiple perspectives on non-state actors in international law (Routledge 2011). Bartholomeusz L, ‘The Amicus Curiae before International Courts and Tribunals’ (2005) 5 Non-State Actors and International Law 209. Benzing M, ‘Community Interests in the Procedure of International Courts and Tribunals’ (2006) 5 (3) The Law and Practice of International Courts and Tribunals 369. Bogdandy A and Venzke I, In Whose Name? A Public Law Theory of International Adjudication (OUP 2014). Charney JI, ‘Progress in International Maritime Boundary Delimitation Law’ (1994) 88 (2) The American Journal of International Law 250. De Brabandere E, ‘NGOs and the “Public Interest”: The Legality and Rationale of Amicus Curiae Interventions in International Economic and Investment Disputes’ (2011) 12 (1) Chicago Journal of International Law 85. Desierto D, 'The International Court of Justice’s 2022 Reparations Judgment in DRC v. Uganda: ‘Global Sums’ as the New Device for Human Rights-Based Inter-State Disputes' (EJIL Talk!, 14 February 2022) accessed 29 September 2022.

132  Wojcikiewicz Almeida and Cohen Dupuy P-M and Hoss C, ‘Article 34’ in Zimmermann A, Tams C J, Oellers-Frahm K and Tomuschat C (eds), The Statute of the International Court of Justice: A Commentary (3rd edn, OUP 2019). Feichtner I, ‘Community Interest’ (2007) Max Planck Encyclopedia of Public International Law. Gaja G, ‘A New Way for Submitting Observations on the Construction of Multilateral Treaties to the International Court of Justice’ in Fastenrath U, Geiger R, Khan DE et al (eds), From Bilateralism to Community Interest: Essays in Honour of Bruno Simma (OUP 2011). Guzman AT and Meyer TL, ‘International Common Law: The Soft Law of International Tribunals’ (2008) 9 Chicago Journal of International Law 515. Hernández G I, ‘Non-state actor from the perspective of the International Court of Justice’ in Jean D’Aspremont (ed), Participants in the International Legal System (Routledge 2011). International Court of Justice, – ‘Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation) - Intervention’ (International Court of Justice, 2022) accessed 9 December 2022. – ‘List of All Cases’ accessed 30 November 2022. – ‘Pending Cases’ accessed 30 November 2022. – Press Release No.2022/29 (18 August 2022) accessed 30 November 2022. – Experts Report on Reparations for The International Court of Justice, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), 19 December 2020. accessed 3 October 2022. International Law Association, – ‘Report on ‘Non State Actors’’ (Sofia Conference, 2012). – ‘Report on ‘Non State Actors’’ (Johannesburg Conference, 2016). Kent A and Trinidad J, ‘Amicus Curiae Participation in International Proceedings: Forever Friends?’ in Avidan Kent A. et al (eds), The Future of International Courts (Routledge 2019). La Rosa A-M and Guibault E S-P, ‘Advisory Opinions of the Permanent Court of International Justice on Issues of the International Labour Organisation’ (2011) Max Planck Encyclopedia of Public International Law. Leroux N, ‘NGOs at the World Court’ (2006) 8 (2-3) International Community Law Review 203. Lindblom A-K, Non-Governmental Organisations in International Law (CUP 2005). Nollkamper A, ‘International Adjudication of Global Public Goods: The Intersection of Substance and Procedure’ (2012) 23 The European Journal of International Law 769. Palchetti P, ‘Opening the International Court of Justice to Third States – Intervention and Beyond’ in Frowein J at al (eds), Max Planck Yearbook of United Nations Law vol 6 (Kluwer Law International 2002). Papastavridis E, ‘Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), 1986’ in Almeida PW and Sorel J-M (eds), Latin America and the International Court of Justice: contributions to international law (Routledge 2016). Paulus A, ‘Article 66, Part Three Statute of the International Court of Justice, Chapter IV Advisory Opinions’ in Zimmermann A et al (eds), The Statute of the International Court of Justice: A Commentary (3rd edn, OUP 2019).

Mapping the ‘Public’  133 Peat D, ‘The Use of Court-Appointed Experts by the International Court of Justice’ (2014) 84 British Yearbook of International Law 271. Razzaque J, ‘Changing Role of Friends of the Court in the International Courts and Tribunals’ (2001) 1 (3) Non-State Actors and International Law 169. Rosenne S, ‘Reflections on the Position of the Individual in Inter State Litigation in the International Court of Justice’ in Sanders P (ed), International Arbitration: Liber Amicorum for Martin Domke (Martinus Nijhoff 1967). – The Law and Practice of the International Court, 1920-1996 vol II (Martinus Nijhoff 1997). Salvador HC, Public Interest Litigation in the Inter-American Court of Human Rights: The Protection of Indigenous Peoples and the Gap between Legal Victories and Social Change’ (2015) Revue québécoise de droit international, hors-série mars 2015. L’État de droit en Amérique latine et au Canada 199-220. Sands P and Mackenzie R, ‘International Courts and Tribunals, Amicus Curiae’ in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (OUP 2009). Shelton D, ‘The Participation of Nongovernmental Organisations in International Judicial Proceedings’ (1994) 88 (4) The American Journal of International Law 611. Simma B, ‘From Bilateralism to Community Interest in International Law’ (1994) 250 Recueil des Cours de l’Académie de Droit International 233. – ‘The International Court of Justice and Scientific Expertise’ (2012) 106 American Society of International Law Proceedings 230. – ‘Human Rights before the International Court of Justice: Community Interest Coming to Life?’ in Tams C J (ed), Development of International Law by the International Court of Justice (OUP 2013). Tams C, ‘Article 51’ in Zimmerman A and Tams C J (eds), The Statute of the International Court of Justice : A Commentary (3rd edn, OUP 2019). – and Devaney J, ‘Article 49’ in Zimmerman A and Tams C J (eds), The Statute of the International Court of Justice : A Commentary (3rd edn, OUP 2019). – and Devaney J, ‘Article 50’ in Zimmerman A and Tams C J (eds), The Statute of the International Court of Justice : A Commentary (3rd edn, OUP 2019). Thin S, ‘Community Interest and the International Public Legal Order’ (2021) 68 Netherlands International Law Review 35. Torres Bernárdez S and Mbengue M M, ‘Article 48’ in Zimmerman A and Tams C J (eds), The Statute of the International Court of Justice: A Commentary (3rd edn, OUP 2019). UK Chagos Support Association, 'Chagossian Speaks In International Court Of Justice Chagos Case' (10 September 2018) accessed 30 November 2022. Ulfstein G, ‘International Courts and Judges: Independence, Interaction and Legitimacy’ (2014) 46 NYU Journal of International Law and Politics 849. United Nations Human Rights: Office of the High Commissioner, ‘Myanmar: UN FactFinding Mission releases its full account of massive violations by military in Rakhine, Kachin and Shan States’ (18 September 2018) accessed 30 November 2022. Valencia-Ospina E, ‘Non-Governmental Organisations and the International Court of Justice’ in Treves T, Fodella A, Tanzi A and di Rattalma MF (eds), Civil Society, International Courts and Compliance Bodies (Asser Press 2005). Wagner M, ‘Non-State Actors’ (2013) Max Planck Encyclopedia of Public International Law.

134  Wojcikiewicz Almeida and Cohen Wiik A, Amicus Curiae before International Courts and Tribunals (Nomos and Hart Publishing 2018). Wolfrum R, ‘Enforcing Community Interests through International Dispute Settlement: Reality or Utopia?’ in Fastenrath U, Geiger R, Khan D-E, Paulus A, Schorlemer S V and Vedder C (eds), From Bilateralism to Community Interest: Essays in Honour of Judge Bruno Simma (OUP 2011).

Part III

Procedural Developments in Public Interest Litigation



6

All that Glitters Is Not Monetary Gold Indispensable Parties and Public Interest Litigation before International Tribunals Brian McGarry1 and Nasim Zargarinejad

6.1 Introduction1 Public interest litigation can be broadly defined as those actions that states take before international courts and tribunals against a wrongdoing state to safeguard an interest shared with the international community.2 A textbook example of public interests is obligations erga omnes, which all members of the international community owe to all other members.3 Indeed, any discussion as to the nature of obligations erga omnes must begin by reference to the celebrated obiter dictum of the International Court of Justice (ICJ) in the Barcelona Traction case, wherein the

1 The co-authors wish to thank Ms Beril Sogut, PhD Candidate, Faculty of Law, University of Bristol for her research assistance, and the S.J. Visser Fund of Leiden University’s Praesidium Libertatis I Foundation for its support of the Tracing Inherent Powers research programme. Any errors remain the authors’ alone. 2  Judge Simma observed that “it is easier to describe the content of community interests than to define their subjects and points of reference.” See: Bruno Simma, ‘From Bilateralism to Community Interest in International Law’ (1994) 250 Collected Courses of the Hague Academy of International Law 235. Judge Gaja explained that “for an interest to be general, the fact that it concerns more than one or two states is clearly required.” He then elaborates on the content of general interest by maintaining that general interests “goes beyond the individual states or entities immediately concerned by a breach.” See: Gaja Giorgio, ‘The Protection of General Interests in the International Community’ (2011) 364 Collected Courses of the Hague Academy of International Law 20. See further, South West Africa, Second Phase, Judgment, I.C.J. Reports 1966, where the Court defined “actio popularis” as a “right resident in any member of a community to take legal action in vindication of a public interest.” 3  See: Christian J. Tams, Enforcing Obligations Erga Omnes in International Law (Cambridge Studies in International and Comparative Law 2005) 2–5, see further Institut de Droit International, Resolution on Obligations Erga Omnes in International Law (Krakow Session, 2005), preamble. For the relationship between public interests and obligation erga omnes, see Christine M. Chinkin, ‘Symposium: The East Timor Case before the International Court of Justice’ (1993) 4 European Journal of International Law 206, 217 (arguing that “[t]he concept of an international actio popularis, a third party claim made on behalf of the international community, was rejected by the Court in the South West Africa case, but the concepts of erga omnes obligations and jus cogens have been considerably developed since then”). See also, Tom Ruys, ‘Legal Standing and Public Interest Litigation—Are All Erga Omnes Breaches Equal?’ (2021) 20 (3) Chinese Journal of International Law 547, 458. See further generally, Gaja, ibid. DOI:  10.4324/9781003433460-9

138  Brian McGarry and Nasim Zargarinejad Court divided international obligations into two categories of obligations: obligations toward another state and obligations “towards the international community as a whole.”4 The Court explained that obligations toward the international community as a whole reflect the “concern of all states” and that all states “have a legal interest in their protection.”5 Each individual state thus has legal standing to invoke the responsibility of a wrongdoing state before a competent international court or tribunal.6 This legal standing is reflected and expanded on in the Draft Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA). According to Article 48 of the ARSIWA, when an obligation erga omnes is violated, a member of the international community which is not injured can nevertheless invoke the responsibility of the breaching state.7 In the same vein, Article 48 also addresses the legal standing of states to protect obligations erga omnes partes—i.e., obligations erga omnes which are codified in a convention, and which are thus shared amongst contracting states as a matter of both custom and treaty.8 Article 48 entitles each state within such “a group of states” to invoke the responsibility of the breaching state in order to safeguard “the collective interest of a group of states.” An example of such an obligation is the prohibition of genocide, as seen in the pending ICJ cases of The Gambia v. Myanmar9 and Ukraine v. Russia.10 In The Gambia v. Myanmar, the applicant has argued that the prohibition of genocide is both an erga omnes and erga omnes partes obligation.11 In its 2020 Order on Provisional Measures, the Court found on

  4 Barcelona Traction, Light and Power Company, Limited, Judgment, I.C.J. Reports 1970, para 33.  5  Ibid.  6 As for the relationship between erga omnes obligations and legal standing, see generally: Christian J. Tams, Enforcing Obligations Erga Omnes in International Law (Cambridge Studies in International and Comparative Law 2005) 158–196. See also Institut de Droit International, Resolution on Obligations Erga Omnes in International Law (Krakow Session, 2005) Article 3. See further: Priya Urs, ‘Obligations Erga Omnes and the Question of Standing before the International Court of Justice’ (2021) 34 (2) Leiden Journal of International Law 505.  7  International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, November 2001, Supplement No. 10 (A/56/10), Article 42.   8 The ICJ defined these obligations as those obligations that “are owed by any state party to all the other states parties to the Convention.” See: Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports 2012, para 68.   9 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Provisional Measures, Order of 23 January 2020, I.C.J. Reports 2020. 10 Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation), Provisional Measures,Order of 16 March 2022, I.C.J. Reports 2022. 11 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Application instituting proceedings and Request for the indication of provisional measures, I.C.J. Reports 2019, para 15.

All that Glitters Is Not Monetary Gold  139 a prima facie basis that The Gambia has legal standing to invoke the responsibility of Myanmar for breaches of the Genocide Convention:12 [A]ny State party to the Genocide Convention, and not only a specially affected State, may invoke the responsibility of another State party with a view to ascertaining the alleged failure to comply with its obligations erga omnes partes, and to bring that failure to an end.13 The state which is entitled to invoke the responsibility of another state under Article 48 may seek (a) the cessation of the internationally wrongful act and assurances and guarantees of non-repetition and (b) the fulfilment of “the obligation of reparation … in the interest of the injured state or of the beneficiaries of the obligation breached.”14 To adjudicate a dispute arising from these obligations, the responsible state must have consented to the jurisdiction of the court or tribunal. However, even when this jurisdictional basis exists, there is still room to inquire whether the absence of interested third states should bar the exercise of jurisdiction.15 Article 48 does not provide an answer to this question. As far as purely bilateral obligations are concerned, the doctrine of indispensable parties—otherwise recognised as the Monetary Gold principle—might bar a court or tribunal from exercising jurisdiction in a given case. The doctrine of indispensable parties grew out of the principle of consent in international adjudication. The ICJ famously dealt with the question of indispensable parties in the Monetary Gold case, where it ruled that it cannot decide upon the merits when the “legal interests” of a non-consenting state would “form the very subject-matter of the decision” sought from the Court.16 The facts underlying the dispute were crucial to the Court’s reasoning in this case. Several states had advanced claims relating to gold that had been removed from the National Bank of Albania in Rome. Three such states, France, the UK and the US, submitted the question to an arbitrator as to whether the gold was the

12 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Written observations of The Gambia on the preliminary objections raised by Myanmar, I.C.J. Reports 2021, para 3.8. 13 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Provisional Measures, Order of 23 January 2020, I.C.J. Reports 2020, para 41. See also: Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Preliminary Objections, Judgment, I.C.J. Reports 2022, para 107. 14 International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, November 2001, Supplement No. 10 (A/56/10), Article 48 (2). 15 The Court has made clear on multiple occasions that the Monetary Gold principle is an objection to the exercise of jurisdiction, rather than to the existence of jurisdiction. See for instance: Arbitral Award of 3 October 1899 (Guyana v. Venezuela), Preliminary Objection, I.C.J. Reports 2023, para 63. 16 Case of the Monetary Gold Removed from Rome in 1943 (Preliminary Question), Judgment of June 15th,1954: I.C.J. Reports 1954, p. 32.

140  Brian McGarry and Nasim Zargarinejad rightful property of Albania, Italy or neither.17 Their arbitration agreement included a complex mechanism wherein they provided advance consent to the subsequent hearing of aspects of the dispute by the ICJ, should such proceedings be instituted by either Albania or Italy.18 In this manner, Italy instituted the Monetary Gold case against these three respondents, and without the presence or consent of Albania.19 The absence of Albania gave rise to the dismissal of the case once the Court determined that it would have to decide upon the international legal responsibility of a non-consenting state to resolve the question submitted by the applicant.20 The Court thus concluded that it could not rule on the case, since to address “the merits of such questions would be to decide a dispute between Italy and Albania.”21 Against this backdrop, the present chapter now aims to answer a central question: to what extent does the Monetary Gold principle arise when the infringement of erga omnes obligations is at stake? By adopting a comparative approach, this chapter will explore the answer to this question in the jurisprudence of different international tribunals. To this end, section 6.2 will identify situations in which the Monetary Gold principle may find application in disputes related to public interests. Section 6.3 develops this chapter’s comparative perspective, exploring public interests that may be brought before different tribunals and providing an overview of the case law wherein the Monetary Gold principle arose during the proceedings. Section 6.4 then offers some concluding observations. 6.2 The Monetary Gold Principle and State Responsibility in Public Interest Litigation The ICJ’s famous pronouncement in the East Timor case22 made it very clear that the nature of the infringed obligation does not affect the application of the indispensable parties rule. The ICJ held that: [t]he Court considers that the erga omnes character of a norm and the rule of consent to jurisdiction are two different things. Whatever the nature of the obligations invoked, the Court could not rule on the lawfulness of the conduct of a State when its judgment would imply an evaluation of the lawfulness of the conduct of another State which is not a party to the case.23

17 Ibid., para 21. 18 Ibid. 19 Ibid., para 22 20  Ibid., para 32. At its core, Italy’s first claim related to its claim for the indemnification against Albania, for which the court had to assess if Albania had committed an internationally wrongful act against Italy. 21 Ibid., paras 32 and 34. 22  See section 6.3 for the discussion on this case. 23  East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, para 29.

All that Glitters Is Not Monetary Gold  141 The Monetary Gold principle, therefore, can be applied even when the dispute concerns an obligation owed to all states or all states within a group. However, in practice, the Monetary Gold principle seems to find fewer instances of application in such instances than in disputes involving direct injury. In bilateral disputes, the rights or obligations of third states may constitute the subject matter of the dispute. For example, in a dispute concerning maritime boundary delimitation between two states, it is possible to imagine that states other than the disputants possess rights in the area to be delimited by a court. In public interest litigation, by contrast, states are not required to have “individual” or “special interests” entitling them to invoke state responsibility, since the right to institute such proceedings belongs to all states.24 Even the state entitled to invoke responsibility under Article 48 of the ARSIWA has no individual rights in the proceedings, as it acts on behalf of the entire international community or group concerned in the case.25 Therefore, opening the gate to the Monetary Gold principle in public interest litigation requires that a third state’s obligations form the subject matter of the case.26 Two scenarios can be envisaged where the obligations of a non-consenting state would fall under the consideration of a competent court. The two scenarios are inspired by Crawford’s categorisation of instances wherein states can be held responsible for “joint and collective conduct” that violates an international obligation.27 In Scenario one, two or more states jointly perform an action that breaches an international obligation, but the applicant state brings only one of those states before the Court (i.e., because a jurisdictional basis exists between the claimant state and that state only).28 Crawford offered two illustrations of this scenario.29 First, a violation can be attributed to a number of states as the “co-authors” of an internationally wrongful act, such as when a coalition of states invades another state, thus violating the prohibition of the use of force.30 Second, each state may breach its obligations separately in a manner which causes injury, such as occurred in the Corfu Channel 24 Pursuant to Article 48 of the ARSIWA, a state “other than the injured state” may invoke the responsibility of a wrongdoing state. States that have been injured by an internationally wrongful act can also invoke the responsibility of the wrongdoing state on a different basis envisaged under Article 42 of the ARSIWA. An injured state under Article 42 is a state to which the obligation breached is owed “individually,” or as part of a group of states or of “the international community as a whole.” Such a state can invoke the responsibility of the breaching state if the breach individually or specially affects it. 25  See Article 42 of the ARSIWA concerning the “[i]nvocation of responsibility by an injured state” with Article 48 the ARSIWA concerning the “[i]nvocation of responsibility by a state other than an injured state.” 26 This conclusion also seems to be in line with Article 48 of the ARSIWA, since the claimants invoke the “responsibility” of wrongdoing states, which makes it clear that the subject matter of the dispute is the breach of an international erga omnes obligation by the wrongdoing states. 27  See: James Crawford, State Responsibility: The General Part (Cambridge University Press 2013) 333–341. 28 Ibid., 333–334. 29 Ibid., 334 30  Ibid.

142  Brian McGarry and Nasim Zargarinejad case (in which Albania failed to warn the UK of mines laid by a third state).31 In both examples, states are individually and independently responsible.32 In principle, an international tribunal may determine the state’s responsibility without ascertaining the lawfulness of other states’ actions.33 As a result, the Monetary Gold principle may not find any place in such litigation. This arose in the Nauru case before the ICJ. In Nauru, Australia asserted that the Monetary Gold principle prevented the Court from adjudicating the case. Australia contended that any decision by the Court on the international responsibility of Australia for breaching a trusteeship agreement “involves also as a ‘vital issue’ the international responsibility of third states, New Zealand and the United Kingdom, who were part of the joint authority which exercised administration over the territory.”34 The Court, however, found that the interest of those states did not comprise the “very subject-matter” of the decision sought and that the situation in the case at hand is distinct from that which the Court had to deal with in the Monetary Gold case.35 The Court explained that in Monetary Gold, establishing Albania's responsibility was “a prerequisite” for a judgment about Italy’s claims; nevertheless, the determination of New Zealand’s or the United Kingdom’s obligation in the case brought by Nauru is not “a prerequisite” for the determination of the responsibility of Australia.36 The Court more specifically reasoned as follows: In the Monetary Gold case the link between, on the one hand, the necessary findings regarding Albania’s alleged responsibility and, on the other, the decision requested of the Court regarding the allocation of the gold, was not purely temporal but also logical.37 Having established this, the Court acknowledged that its decision might affect the interests of non-parties to the case: [A] finding by the Court regarding the existence or the content of the responsibility attributed to Australia by Nauru might well have implications for the

31 Ibid., 335. 32  Ibid., 334 33  See: Beatrice Bonafé, ‘Adjudicative Bilateralism and Community Interests’ (2021) 115 American Journal of International Law Unbound 164, 168–169 (finding that a court’s conceptualisation of its judicial functions—as well as of the primary obligation in the case—may contribute to its determination as to whether the rights of third states are separable from those of the disputing parties). Arguing for a more fulsome departure from the ICJ’s Monetary Gold jurisprudence, see generally: Zachary Mollengarden and Noam Zamir, ‘The Monetary Gold Principle: Back to Basics’ (2021) 115 American Journal of International Law 1. 34 Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections of the Government of Australia, I.C.J. Reports 1990, para 351. 35  Ibid., p. 49, para 55. 36  Ibid. 37  Ibid.

All that Glitters Is Not Monetary Gold  143 legal situation of the two other States concerned, but no finding in respect of that legal situation will be needed as a basis for the Court’s decision on Nauru’s claims against Australia. Accordingly, the Court cannot decline to exercise its jurisdiction.38 The case perfectly clarifies that the Monetary Gold principle does not bar the Court from proceeding if it can, under the circumstances of a given case, assign responsibility for the respondent’s acts without going into the responsibility of other states. A similar hypothetical situation which could possibly yield the same result is when state A, on behalf of the international community, invokes the responsibility of state B for breaching the prohibition on the use of force against state C.39 This could transpire if, for example, there is no relevant instrument of jurisdictional consent between states B and C. In such a situation, state B might assert self-defence40 to justify its actions, which would require the court to analyse the alleged conduct of state C against which the respondent had employed force. As in East Timor, the court might refuse to decide such a case, where it seems that a decision on the merits would require an evaluation of the lawfulness of a third state’s conduct. In Scenario two, the respondent state is responsible for assisting another state or controlling or coercing it into breaching an international obligation. In both cases, one state is responsible for the internationally wrongful act of another state. The ARSIWA’s commentary specifies that the Monetary Gold principle might apply when the responsibility of the state providing this assistance is in question, since the wrongfulness of the aid or assistance that it gave hinges on the wrongfulness of the conduct of the aided or assisted state.41 The ARSIWA’s commentary does not express any similar comment on the case of control or coercion. It is thus apparent that the Monetary Gold principle may be raised when a court possesses jurisdiction to decide on the responsibility of one or certain states for joint conduct leading to the violation of erga omnes obligations. In this light, the following section presents a comparative survey of the jurisprudence of international tribunals and assesses how these diverse bodies have treated the Monetary Gold principle in disputes concerning erga omnes obligations.

38 Ibid. (emphasis added). 39 Article 2(4) of the UN Charter enshrines the prohibition of the use of force. The exercise of selfdefence, subject to the conditions set forth in Article 51 of the Charter, is a recognised exception to this prohibition. See: United Nations, Charter of the United Nations, 24 October 1945. 40 See: Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, para 38 (explaining that the UN Charter recognises the inherent right of individual or collective selfdefence if an armed attack occurs); see also Article 21 of the ARSIWA. 41 The commentary explains that “[t]hat principle may well apply to cases under Article 16, since it is of the essence of the responsibility of the aiding or assisting state that the aided or assisted state itself committed an internationally wrongful act.” See: International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, With Commentaries (Yearbook of the International Law Commission II, 2001) p. 67, para 11.

144  Brian McGarry and Nasim Zargarinejad 6.3 The Monetary Gold Principle in the Jurisprudence of International Courts and Tribunals: A Comparative Perspective 6.3.1  The International Court of Justice

The ICJ enjoys general competence in international law.42 It can, therefore, decide “all cases which the parties refer to it,”43 including cases that involve the breach of erga omnes obligations. The Monetary Gold principle has been invoked in a number of cases before the ICJ in order to bar the Court from deciding the merits.44 For example, in certain land or maritime boundary disputes, the ICJ had to ascertain if the subject-matter of the dispute constitutes the legal interests of neighbouring states.45 Likewise, the Monetary Gold principle was raised in other cases relevant to public interest litigation which involved the obligations of non-consenting states, such as the three Nuclear Disarmament cases.46 However, with one notable exception, the Court has always excluded the application of the principle and proceeded to the merits because the non-parties’ interests did not comprise “the very subject-matter of the dispute”; it was possible to separate the obligations of non-parties from those of the parties, as in Nauru; or the non-parties had already consented to the Court’s exercise of jurisdiction, as the ICJ found in its 2023 judgment in Arbitral Award of 3 October 1899.47

42 Alain Pellet, Daniel Müller, ‘Competence of the Court, Article 38’ in Andreas Zimmermann, Christian J. Tams, Karin Oellers-Frahm and Christian Tomuschat (eds), The Statute of the International Court of Justice: A Commentary (3rd edn, Oxford University Press 2019) 837. 43 United Nations, Statute of the International Court of Justice, 18 April 1946, Article 36 (1). 44 See generally: Ori Pomson, ‘Does the Monetary Gold Principle Apply to International Courts and Tribunals Generally?’ (2019) 10 (1) Journal of International Dispute Settlement 88. 45 In the Frontier Dispute case, one of the arguments put forward by the respondent state, Mali, was that the court’s decision would affect the territorial interests of Niger, a state which had not consented to these proceedings. See: Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, I.C.J. Reports 1986. In the Continental Shelf case, the Monetary Gold principle was considered in the context of intervention, where non-party Italy sought to protect its legal interests in the case. Continental Shelf (Libyan Arab Jamahiriya/Malta), Application to Intervene, Judgment, I.C.J. Reports 1984, para 40. In Land and Maritime Boundary between Cameroon and Nigeria, the court again decided on the merits because it found that third-state rights did not occupy the “very subjectmatter” of the dispute. Land and Maritime Boundary between Cameroon and Nigeria, Preliminary Objections, Judgment, I.C.J. Reports 1998, para 70. 46  See for instance: Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. India), Preliminary Objections, ICJ Reports 2016, Separate Opinion of Judge Tomka, paras 38-39; Dissenting Opinion of Judge Cançado Trindade, paras 134-135; Declaration of Judge Xue, para 9; Separate Opinion of Judge Bhandari, para 56; Dissenting Opinion of Judge Crawford, para 21. 47 The Court excluded the application of the Monetary Gold principle because the United Kingdom (a non-party to the case) had already consented to the settlement of the dispute between the parties, with the understanding that it would have no role in that procedure “even if the Court, in its Judgment on the merits, were called to pronounce on certain conduct attributable to the United Kingdom”. See: Arbitral Award of 3 October 1899 (Guyana v. Venezuela), Preliminary Objection, I.C.J. Reports 2023, paras 102 and 107.

All that Glitters Is Not Monetary Gold  145 East Timor remains the sole outlier. Portugal, considering itself to be the Administering Power of East Timor, brought proceedings against Australia regarding a treaty that Australia had concluded with Indonesia in respect of the continental shelf adjacent to East Timor.48 Portugal claimed that Australia, through the conclusion of a treaty with Indonesia, violated Portugal’s rights as well as the right to self-determination of the East Timorese people.49 Australia raised a Monetary Gold objection, arguing that proceeding to the merits would require the Court to make findings as to Indonesia’s capacity to conclude the treaty on behalf of East Timor.50 The Court sustained Australia’s objection, finding that “Australia’s behaviour cannot be assessed without first entering into the question why it is that Indonesia could not lawfully have concluded the 1989 Treaty.”51 The East Timor case thus reflects, in the context of erga omnes obligations, the collision of the Monetary Gold principle and the question of responsibility arising from joint conduct. Unlike the Nauru case, the Court did not affirm its jurisdiction by separating the conduct and the responsibility of the respondent from that of the non-parties. The ICJ’s different practice in the two cases rests on the fact that, in the East Timor case, the administrative authority of Portugal over East Timor was a matter of dispute between Portugal and Indonesia. The ICJ, therefore, had to engage with the legality of the actions of Indonesia in entering into and remaining in East Timor, prior to answering the question of the responsibility of Australia.52 In the Nuclear Disarmament cases, the Court had the opportunity to further develop the doctrine of indispensable parties in the context of obligations erga omnes.53 The Monetary Gold principle was invoked by each of the three respective respondents (India, Pakistan and the UK) in three similar cases. The UK emphasised that the Marshall Islands’ claims involved third states’ interests and that the res inter alios acta protection of Article 59 of the Statute did not adequately safeguard their interests in these cases.54 The UK submitted that other parties to the 1968 Treaty on the Non-Proliferation of Nuclear Weapons (NPT) which possess nuclear weapons had taken similar stances as the UK or were “counterparties to the agreements or specific examples of cooperation which are alleged to constitute specific violations by the UK of its obligations under Article VI of the NPT or customary law.”55 It argued that the Court thus could not decide upon the case 48 East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995. 49 Ibid., para 19. 50  Ibid., para 27. 51 Ibid., paras 24 and 28. 52  Ibid., para 34. 53 The Marshall Islands lodged nine applications against each of the nuclear powers, with only three having any plausible jurisdictional basis. See: Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom), Preliminary Objections, Judgment, I.C.J. Reports 2016. 54 Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom), Preliminary Objections of the United Kingdom, I.C.J. Reports 2015, paras 83 and 100. 55  Ibid., para 84.

146  Brian McGarry and Nasim Zargarinejad without evaluating the lawfulness of the conduct of non-consenting states. The UK distinguished the case from Nauru, since the Marshall Islands alleged that it had been harmed by the UK’s conduct toward other nuclear-armed states, not by the UK’s conduct toward the Marshall Islands directly. According to the UK, the court could not rule on its conduct in isolation from the obligations and conduct of other states.56 India and Pakistan advanced similar positions.57 These Monetary Gold objections were criticised by Judge Cançado Trindade58 and rejected by Judge Tomka.59 However, Judges Bhandari,60 Xue61 and Crawford62 found these objections convincing, with Judge Crawford considering them to be “the most plausible” objections raised in these cases.63 As the Court instead dismissed these cases for lack of a crystallised dispute between the parties,64 it

56  Ibid., para 93–97. 57  Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. India), Counter-Memorial of the Republic of India, I.C.J. Reports 2015, paras 33–38 (arguing that the Court is asked to adjudicate the responsibility of third states); Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. Pakistan), Counter-Memorial of Pakistan, I.C.J. Reports 2015, paras 8.41–8.43 (arguing that third-state legal interests comprise the very subject matter of the case). 58 Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom), Dissenting opinion of Judge Cançado Trindade to the Judgment of 5 October 2016, I.C.J. Reports 2016, para 128. 59 Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom), Separate opinion of Judge Tomka to the Judgment of 5 October 2016, I.C.J. Reports 2016, para 38. 60  Judge Bhandari stressed the fact that the three respondents collectively possessed less than 3 per cent of the world’s nuclear arsenal. Therefore, “it is indispensable to have the participation of the other countries who possess such a large quantity of the world’s nuclear weapons.” See: Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom), Separate opinion of Judge Bhandari to the Judgment of 5 October 2016, I.C.J. Reports 2016, para 54. 61 Judge Xue stated that the objection based on the Monetary Gold principle and the objection that a state cannot negotiate by itself “deserve an immediate consideration of the court at the preliminary stage.” She noted that if the Court had considered them, it would have been able to demonstrate that the Marshall Islands’ application was not “merely defective in one procedural form.” Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom), Declaration of Judge Xue to the Judgment of 5 October 2016, I.C.J. Reports 2016, paras 9–11. 62  See: Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom), Dissenting opinion of Judge Crawford to the Judgment of 5 October 2016, I.C.J. Reports 2016, paras 29–30. 63  Ibid., para 29. 64 Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom), Preliminary Objections, Judgment, I.C.J. Reports 2016, para 59; Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. India), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2016, para 56; Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. Pakistan), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2016, para 56.

All that Glitters Is Not Monetary Gold  147 ultimately resolved nothing about the interaction between the doctrine of indispensable parties and the invocation of obligations erga omnes. The Court’s reluctance to unnecessarily enter into multiple jurisdictional objections reflects a sensible and well-established general practice of judicial restraint. Yet it is also unsurprising that the Court in these cases seized upon the requirement of a crystallised dispute—with which it had extensive practice—rather than the Monetary Gold principle, which has been infrequently invoked (and rarely dispositive) in the Court’s practice. Disposing of these cases on Monetary Gold grounds would have likely limited the prospects of other instances of public interest litigation involving multiple responsible states. 6.3.2  The International Tribunal for the Law of the Sea

The International Tribunal for the Law of the Sea (ITLOS) was established as a standing body available to hear any dispute concerning the interpretation or application of the UN Convention on the Law of the Sea (UNCLOS),65 as well as any dispute concerning the interpretation or application of “an international agreement related to the purposes” of the Convention.66 Given that UNCLOS contains obligations that benefit all state parties to the convention, such as the protection of the marine environment and the conservation of its resources, ITLOS—like the ICJ— is competent to adjudicate disputes owed to the international community.67 Public interests arise in respect of certain areas which cannot be subject to the sovereignty of any state, or where the exploitation of resources must be used for the benefit of all states and their people. The high seas, for instance, belong to no state, and while each state enjoys multiple freedoms68 within this area, such freedoms must be exercised with due regard to “the interests of other states in their exercise of the freedom of the high seas” and the “peaceful purpose” of this area.69 Therefore, the use of force by a state party in this area would run against this peaceful purpose and would grant all state parties locus standi to protect this community

65  UN General Assembly, Convention on the Law of the Sea (UNCLOS), 10 December 1982. According to Article 287(1) of UNCLOS, “a state shall be free to choose” a means for “the settlement of disputes concerning the interpretation or application” of UNCLOS, including submission to fora such as the International Tribunal for the Law of the Sea (ITLOS). The Tribunal is established by Annex VI to the Convention, and it has jurisdiction to decide “all disputes and all applications submitted to it” in accordance with UNCLOS and “all matters specifically provided for in any other agreement which confers jurisdiction on the Tribunal.” See: UN General Assembly, Statute of the International Tribunal for the Law of the Sea (Annex VI of the United Nations Convention on the Law of the Sea), Article 21. 66  Ibid., Article 288. 67  Eirini-Erasmia Fasia, ‘No Provision Left Behind – Law of the Sea Convention’s Dispute Settlement System and Obligations Erga Omnes’ (2021) 20 (3) The Law and Practice of International Courts and Tribunals 519, 534–539. 68 UN General Assembly, Statute of the International Tribunal for the Law of the Sea (Annex VI of the United Nations Convention on the Law of the Sea), Article 87. 69 Ibid., Article 88.

148  Brian McGarry and Nasim Zargarinejad interest. The “seabed and the ocean floor and the subsoil” as well as the resources of this area are also subject to the common utilisation of all.70 To properly use these areas for the benefit of humankind,71 the International Seabed Authority has been established to undertake control and administrative functions in this area.72 Another public interest concerns the marine environment, for which obligations are owed to all members of the international community.73 The pollution of the marine environment can lead to the institution of bilateral or multilateral disputes depending on the relationship between the concerned states. A coastal state, for example, which bears damages arising from the violation of this obligation by another state, might institute a state-to-state dispute under UNCLOS for the responsibility of the polluting state. In keeping with Article 48 of the ARSIWA, a state which is not directly injured by damage to the marine environment can instead bring a case under UNCLOS if such a violation has occurred on the high seas. This has been endorsed in the advisory opinion of the Seabed Disputes Chamber, which found that: Each State Party may also be entitled to claim compensation in light of the erga omnes character of obligations relating to preservation of the environment of the high seas and in the Area.74 Having illustrated the existence of public interests under the law of the sea, we may consider two instances in which Monetary Gold objections have been raised before ITLOS. Panama brought the Norstar case against Italy for arresting and detaining a Panamanian-flagged oil tanker, the M/V Norstar. However, Norstar was seized in Spanish waters following a request for judicial assistance by Italy. As such, Spain’s actions and its potential responsibility could have triggered the application of the Monetary Gold principle.75 Italy indeed objected to ITLOS’s jurisdiction on this

70  Ibid. 71 Ibid., Preamble (“Desiring by this Convention to develop the principles embodied in resolution 2749 (XXV) of 17 December 1970 in which the General Assembly of the United Nations solemnly declared inter alia that the area of the seabed and ocean floor and the subsoil thereof, beyond the limits of national jurisdiction, as well as its resources, are the common heritage of mankind, the exploration and exploitation of which shall be carried out for the benefit of mankind as a whole, irrespective of the geographical location of states”). 72  Ibid., Article 162. 73  Eirini-Erasmia Fasia, ‘No Provision Left Behind – Law of the Sea Convention’s Dispute Settlement System and Obligations Erga Omnes’ (2021) 20 (3) The Law and Practice of International Courts and Tribunals 519, and Farid Ahmadov, The Right of Actio Popularis before International Courts and Tribunals (Brill 2018) 144–156. 74 Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, Advisory Opinion of 1 February 2011, International Tribunal for the Law of the Sea, para 180. 75  The M/V Norstar Case (Panama v Italy, Preliminary Objections), Judgment of 4 November 2016, International Tribunal for the Law of the Sea, paras 43 and 144.

All that Glitters Is Not Monetary Gold  149 basis, submitting that “the assessment of the legality of the order for seizure issued by Italy could not be made irrespective of the assessment of the legality of the arrest of the vessel in question by Spain.”76 The Tribunal found that the decree of seizure and request for its enforcement by Italy “were central to the eventual arrest of the vessel” and that “without the Decree of Seizure, there would have been no arrest.”77 The most intriguing finding of the Tribunal was that the case before the Tribunal concerned “aid or assistance commission of an internationally wrongful act.”78 The Tribunal then held that “Spain merely provided assistance in accordance with its obligations”79 and that “Italy is the proper respondent to the claim made by Panama.”80 Yet the reasoning of the Tribunal on this point seems to be unclear. The Tribunal appears to have Article 16 of the ARSIWA in mind when finding that the case is a situation of aid and assistance. The ILC commentary to Article 16 of the ARSIWA refers to the Monetary Gold principle as a possible obstacle in the determination of the responsibility of an aiding-and-assisting state when the aided-andassisted state did not consent to the proceedings.81 Pursuant to the commentary, the wrongfulness of the aid or assistance given which can lead to the responsibility of the aiding and assisting state is dependent, inter alia, on the wrongfulness of the conduct of the aided and assisted state. However, in the Norstar case, the situation was exactly the opposite since the aiding and assisting state, Spain, was not a party to the proceedings. The Tribunal thus could safely determine Italy’s responsibility without addressing Spain’s conduct. The other instance where ITLOS has engaged with arguments based on the Monetary Gold principle is the pending case of Mauritius/Maldives, where Maldives contended that the delimitation requested by Mauritius would affect the sovereign rights of the UK over the Chagos Archipelago.82 While the Special Chamber of ITLOS constituted in this case had no doubt that the Monetary Gold principle is generally applicable to ITLOS proceedings, it considered that the principle found no application in this particular case. By relying upon the 2019 Chagos advisory opinion—in which the ICJ determined that the UK’s continued administration of the Chagos Archipelago is “an unlawful act of a continuing character”83—the Chamber was able to dispose of Maldives’ objection without itself pronouncing

76  Ibid., para 146. 77  Ibid., para 165. 78 Ibid., para 166. 79 Ibid., para 167. 80 Ibid., para 168. 81 International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, With Commentaries (Yearbook of the International Law Commission II, 2001), p. 67, para 11. 82 Dispute concerning Delimitation of the Maritime Boundary between Mauritius and Maldives in the Indian Ocean (Mauritius/Maldives), Judgment of 28 January 2021, International Tribunal for the Law of the Sea, para 81. 83 Ibid., para 160.

150  Brian McGarry and Nasim Zargarinejad upon the UK’s legal responsibility.84 The case demonstrates that an advisory opinion of the ICJ—like the force of res judicata which attaches to judgments in the Court’s contentious cases—can limit the application of the Monetary Gold principle by extinguishing the claimed rights and interests of a directly affected state. 6.3.3.  Arbitration

Obligations erga omnes have recently surfaced before a number of investor-state arbitration tribunals. Given that one party to such a dispute is a non-state whose legal obligations are very different from those of states, erga omnes obligations may seem alien to this system. The Aven case, for example, concerned Costa Rica’s termination of a tourism project due to environmental concerns. The host state’s counter-claim against the investors asserted that the investors had caused environmental harm to Costa Rica, for which they must pay damages.85 In examining these claims, the arbitral tribunal noted that investors are not “immune from becoming subjects of international law”86 and that their subjectivity to international law is “particularly convincing when it comes to rights and obligations that are the concern of all states, as it happens in the protection of the environment.”87 The tribunal then framed the relevant environmental obligations as erga omnes.88 As a principle which serves to limit international courts and tribunals from adjudicating the rights and obligations of a state without its consent, Monetary Gold may indeed find application in such disputes, barring arbitral tribunals from prejudicing the rights of non-consenting states with the force of res judicata.89 Before the Permanent Court of Arbitration (PCA), the Monetary Gold principle has been explicitly discussed in at least three arbitrations,90 namely Larsen/

84 Probing the force of ICJ advisory opinions in disputes between states, see further: Fabian Simon Eichberger, ‘The Legal Effect of ICJ Advisory Opinions Redefined? The Mauritius/Maldives Delimitation Case—Judgment on Preliminary Objections’ (2021) 22 (2) Melbourne Journal of International Law 1, 14–18. 85 David R. Aven and Others v. Republic of Costa Rica (Award) ICSID Case No. UNCT/15/3, 2018, para 185. 86 Ibid., para 738. 87 Ibid. 88 Ibid. 89 An objection based on the indispensable party rule was also raised in the Ping An v. Belgium case by the respondent state, claiming that the Netherlands was an indispensable party to the case. Nevertheless, Belgium, at the start of the oral hearings, stated that it would no longer pursue this jurisdictional challenge. See: Ping An Life Insurance v. Belgium (Award) ICSID Case No. ARB/12/29, 2015, para 127. 90 See: Noam Zamir, ‘The applicability of the Monetary Gold principle in international arbitration’ (2017) 33 (4) Arbitration International 523, 528–529 and 531–532; Béatrice Bonafé, ‘Indispensable Party’ (2018) Max Planck Encyclopedias of International Law 16–18; and Ori Pomson, ‘Does the Monetary Gold Principle Apply to International Courts and Tribunals Generally?’ (2019) 10 (1) Journal of International Dispute Settlement 88, 106.

All that Glitters Is Not Monetary Gold  151 Hawaiian Kingdom,91 Chevron v. Ecuador92 and the South China Sea.93 These cases collectively demonstrate that the Monetary Gold principle is applicable in a truly wide range of case dynamics, involving states and non-states. Nonetheless, one might query how the autonomy of arbitration accommodates this judicially derived principle.94 In the earliest such case, Larsen/Hawaiian Kingdom, the doctrine of indispensable parties led to the dismissal of the case. The esteemed tribunal first requested the parties to address the applicability of the Monetary Gold principle to arbitral proceedings.95 Both parties argued that this principle should not be applied in arbitration.96 However, the tribunal stressed that it is called upon to “apply international law” and that it must function within “the general confines of public international law.”97 More importantly, the tribunal found that the principle is applicable with “at least as much force to the exercise of jurisdiction in international arbitral proceedings” and that there is neither a principle nor a policy requiring the tribunal to apply any different rule.98 The tribunal notably observed that the Monetary Gold principle may be inapplicable where “the legal finding against an absent third party could be taken as ‘given,’ such as through “an authoritative decision of the Security Council on the point.”99 In so doing, the tribunal took a clearer view of this premise than the ICJ had in East Timor, in which Portugal argued that the Court should disregard Monetary Gold because the General Assembly and Security Council had affirmed Portugal to be the administrative power in East Timor. Without expressly accepting or rejecting this general premise, the Court found that the UN resolutions cited

91 Larsen v. Hawaiian Kingdom, Award, 5 February 2001, Case No. 1999-01, Permanent Court of Arbitration. 92 Chevron Corporation and Texaco Petroleum Corporation v. Ecuador (II), Third Interim Award on Jurisdiction and Admissibility, 27 February 2012, Case No. 2009-23, Permanent Court of Arbitration. 93 The South China Sea Arbitration (The Republic of the Philippines v. The People’s Republic of China), Award on Jurisdiction and Admissibility, 29 October 2015, Case No 2013, Permanent Court of Arbitration. 94 Zamir has raised scepticism as to whether arbitral tribunals must apply this principle. He argues that the ICJ—as the principal judicial organ of both the UN and the international community—produces decisions which “have at least a strong rhetoric importance [sic],” whereas (in his view) arbitral tribunals have no equivalent status. In his opinion, the ICJ, as “the court of the international community has a special duty” to all states which requires the Court to “not to exercise its jurisdiction in the limited situations that fall under the scope of the Monetary Gold principle.” See: Noam Zamir, ‘The applicability of the Monetary Gold principle in international arbitration’ (2017) 33 (4) Arbitration International 523, 535–536. 95 The Tribunal consisted of three arbitrators: Gavan Griffith, Christopher Greenwood, and James Crawford; see: Larsen v. Hawaiian Kingdom, Award, 5 February 2001, Case No. 1999-01, Permanent Court of Arbitration, para 11.17. 96 Ibid. 97 Ibid. 98 Ibid. 99 Ibid., para 1124.

152  Brian McGarry and Nasim Zargarinejad by Portugal could not “be regarded as ‘givens’ which constitute a sufficient basis for determining the dispute between the parties” in this case.100 The Larsen award is thus the first international legal decision expressly accepting the premise that such “givens” will limit the application of the Monetary Gold principle. This, in turn, provides support for the finding of the ITLOS Special Chamber in Mauritius/ Maldives that an ICJ advisory opinion can similarly limit the application of this principle. A Monetary Gold objection was later raised in Chevron v. Ecuador, a PCA investor-state arbitration. The tribunal first held that the Monetary Gold principle “draws its strength from, and implements, a number of distinct and fundamental principles of international law.”101 Subsequently, it engaged in analysing those fundamental principles of international law which, in its view, were associated with Monetary Gold—namely, the principles of consent and due process.102 Employing analogical argumentation, the tribunal observed that “no arbitration tribunal has jurisdiction over any person unless they have consented”; in this manner, it appeared to expand the crux of the Monetary Gold principle from the consent of states to the consent of “persons.”103 The tribunal framed another aspect of the Monetary Gold principle as the “indispensable third party” principle—which, in the tribunal’s view, is the corollary of the “consent” principle.104 The tribunal explained that the indispensable third party principle centres on “the ability of the tribunal to decide the case justly and according to law” because if it cannot hear the arguments of concerned states which are not parties to the case, it may be unable to hear “full” arguments on the rights underlying the case. Lastly, the tribunal observed that the Monetary Gold principle also deals with “due process,” which requires it “to refrain from ruling upon the rights of states unless they are given the opportunity to present their case.”105 Despite this in-depth analysis, the tribunal did not determine whether the Monetary Gold principle is applicable to an investorstate arbitration since it stressed that these considerations are only “for the sake of 100 East Timor (Portugal v. Australia), Judgment, I. C.J. Reports 1995, paras 30–32. 101 Chevron Corporation and Texaco Petroleum Corporation v. Ecuador (II), Third Interim Award on Jurisdiction and Admissibility, 27 February 2012, Case No. 2009-23, Permanent Court of Arbitration, para 4.61. 102 Ibid., paras 4.61–4.63 103 Ecuador, the respondent, argued that the tribunal’s decision would affect the rights of Lago Agrio plaintiffs (a group of Ecuadorian citizens) in their case against Texaco Petroleum Company before Ecuadorian courts. In that domestic proceeding, the Lago Agrio plaintiffs accused Chevron of environmental contamination through Texaco Petroleum Company’s operations in Ecuador. The parties to the Chevron v. Ecuador case disagreed over whether or not the Monetary Gold principle can be applied to “mixed (state/non-state) arbitrations” where the tribunal, in order to decide upon the responsibility of a state, must consider matters that “are the subject of litigation between private persons.” The tribunal noted that the Monetary Gold principle “gives effect to the principle that no international tribunal may exercise jurisdiction over a State without the consent of that State; and, by analogy, no arbitration tribunal has jurisdiction over any person unless they have consented.” See: ibid., 3.31 and 4.60–4.61. 104 Ibid., 4.62. 105 Ibid., 4.64.

All that Glitters Is Not Monetary Gold  153 argument,” and only after “assuming” that the Monetary Gold principle applies to the arbitration in the given case.106 Among the PCA’s inter-state arbitrations, the South China Sea case presents the clearest treatment of the Monetary Gold principle. In this case, the Philippines instituted arbitration against China, while Vietnam and other states also claimed sovereign interests in the subject matter of the arbitration.107 While China did not formally appear in the case, it issued statements to draw the tribunal’s attention to the fact that the matter “involves a number of countries.”108 None of the interested third states asserted that they were indispensable parties to the arbitration.109 The tribunal examined the question nevertheless and concluded that the absence of Vietnam and other third states from the proceedings was not a bar to exercising its jurisdiction.110 Based on the foregoing, it is clear that both the indispensable parties rule and erga omnes obligations may find a place in arbitral proceedings. Nevertheless, the practice of arbitral tribunals does not specifically address the application of the Monetary Gold principle in arbitration regarding public interest litigation. If the Monetary Gold principle can be raised in arbitration, it is possible to imagine a case concerning public interest under the compulsory arbitration of UNCLOS. In such a case, the mandatory arbitral mechanism provides a jurisdictional basis for acting against wrongdoing state parties to UNCLOS. 6.3.4  The International Criminal Court

The International Criminal Court (ICC) is a permanent court with a significantly different mandate from arbitral and inter-state judicial settings. Yet the idea of the international community also finds some place in the ICC legal system.111 The Preamble and Article 5 of the Rome Statute, for example, depict crimes under the jurisdiction of the ICC as “the most serious crimes of concern to the international community as a whole.”112

106 Ibid. 107 Brian McGarry, ‘Third Parties and Insular Features after the South China Sea Arbitration’ (2017) 35 Chinese (Taiwan) Yearbook of International Law and Affairs 99, 117–118. 108 The South China Sea Arbitration (The Republic of the Philippines v. The People’s Republic of China), Award on Jurisdiction and Admissibility, 29 October 2015, Case No 2013-19, Permanent Court of Arbitration, p. 71, fn 150. 109 Ibid., para 188. 110 Ibid., paras 187–188. 111 See Cherif Bassiouni, ‘International Crimes: Jus Cogens and Obligation Erga Omnes’ (1996) 59 (4) Law and Contemporary Problems 63, 69 (arguing that certain crimes have impact on the interests of the community as a whole because “they threaten the peace and security of humankind and because they shock the conscience of humanity”). See also Institut de Droit International, Resolution on Obligations Erga Omnes in International Law (Krakow Session, 2005) preamble (wherein the Institute considered that the “fundamental values of the international community are infringed by serious international crimes as defined by international law”). 112 UN General Assembly, Rome Statute of the International Criminal Court, 17 July 1998.

154  Brian McGarry and Nasim Zargarinejad The different mandate of the ICC also calls into question how the rights or responsibility of third states—the crux of the Monetary Gold principle—could arise in its proceedings, since the ICC was established to investigate and prosecute individual criminals rather than states. Therefore, it would appear that joint conduct cases cannot be taken to the ICC. Still, the Monetary Gold principle may find application in this novel context. The crime of aggression, for example, entails the responsibility of both the state and individuals. It has been proposed that any ICC determination as to the commission of the crime of aggression would necessarily involve an assessment of the legality of the acts of a non-consenting state.113 Article 15 bis of the Rome Statute stipulates that “the Court may … exercise jurisdiction over the crime of aggression, arising from an act of aggression committed by a State Party.”114 As referenced here, an act of aggression involves a series of actions by the state toward another state.115 The ICC Statute includes measures to ensure that the ICC will not exercise jurisdiction over those states that are not a party to the Statute, nor those that did not accept the amendment.116 However, the Statute does not require the consent of a state whose territory has been violated by the act of aggression, despite the fact that the ICC might make determinations as to the conduct of that state. It is still a matter of question whether the ICC can exercise jurisdiction over states parties that neither accepted the Kampala amendments nor opted out of them. Given that any consideration of the crime would require the ICC to assess if a state has committed aggression, the Monetary Gold principle might be considered applicable without the express consent of that state to the proceedings.117 The ICC has explicitly rejected the application of the principle in certain cases exceeding the parameters noted earlier. In the Situation in the State of Palestine, the Prosecutor requested the Pre-Trial Chamber under Article 19(3) of the Rome Statute to issue a ruling on the court’s territorial jurisdiction in Palestine.118 The ICC Pre-Trial Chamber invited Palestine, Israel, other states, victims, organisations and persons to submit observations on the Prosecutor’s Request.119 In its decision, the

113 Mirinda O’Gorman and Charles Sampford, ‘Aggression and Monetary Gold Quo Vadis?’ in Patrick Keyzer, Vesselin Popovski and Charles Sampford (eds), Access to International Justice (Routledge 2015) 48. 114 UN General Assembly, Rome Statute of the International Criminal Court, 17 July 1998. 115 Mirinda O’Gorman and Charles Sampford, ‘Aggression and Monetary Gold Quo Vadis?’ in Patrick Keyzer, Vesselin Popovski and Charles Sampford (eds), Access to International Justice (Routledge 2015) 50 and 52–53. 116 Ibid., 50–51. 117 Dapo Akande and Antonios Tzanakopoulos, ‘Treaty Law and ICC Jurisdiction over the Crime of Aggression’ (2018) 20 (3) European Journal of International Law 939, 959. 118 Situation in the State of Palestine (2020), Prosecution request pursuant to Article 19(3) for a ruling on the court’s territorial jurisdiction in Palestine, ICC-01/18-12, Pre-Trial Chamber I, International Criminal Court, 22 January 2020. 119 Situation in the State of Palestine (2020), Order setting the procedure and the schedule for the submission of observations (Situation in the State of Palestine), ICC-01/18-14, Pre-Trial Chamber I, International Criminal Court, 28 January 2020, para 7.

All that Glitters Is Not Monetary Gold  155 Chamber noted that some of the amicus curiae briefs that it had received referred to the Monetary Gold principle.120 Those submissions presented different logical arguments for the application of the Monetary Gold principle to the case. The main arguments, however, were that the judgment of the ICC would affect Israel’s interests by making findings on Palestine’s statehood and its territory and that the ICC’s judgment may affect the result of negotiations between the two.121 Yet the applicability of the Monetary Gold principle was rejected by the Chamber, which held that “[u]nlike the International Court of Justice, the [ICC] cannot rule on interstate disputes as it does not have jurisdiction over states, but exercises its jurisdiction solely over natural persons.”122 The Chamber added that Israel was nevertheless invited previously to submit observations, but it had decided not to use that opportunity.123 Finally, the Chamber emphasised that the case before it was “strictly limited to the question of jurisdiction set forth in the Prosecutor’s Request” and that it did not “entail any determination on the border disputes between Palestine and Israel.”124 Accordingly, the Chamber held that its decision “shall thus not be construed as determining, prejudicing, impacting on, or otherwise affecting any other legal matter arising from the events in the Situation in Palestine either under the Statute or any other field of international law.”125 At first glance, the decision seems to reject the applicability of the Monetary Gold principle in the context of the ICC, based on the different jurisdictions of the ICC and the ICJ. However, the ICC Chamber’s explanation as to why the Monetary Gold principle is inapplicable is not sufficiently convincing. Its statement that Israel may have benefited from amicus curiae papers appears to conflate the objective of 120 Situation in the State of Palestine (2021), Decision on the ‘Prosecution request pursuant to Article 19(3) for a ruling on the court’s territorial jurisdiction in Palestine’, ICC-01/18-143, Pre-Trial Chamber I, International Criminal Court, 5 February 2021, para 58. 121 According to the relevant amicus curiae briefs, to exercise its jurisdiction, the ICC must ensure that Palestine is a state—a question which is a matter of dispute between Israel and Palestine—and that the crimes under investigation took place on Palestinian territory. See: Situation in the State of Palestine (2020), The observations of the Republic of Uganda Pursuant to rule 103 of the Rules of Evidence and Procedure, ICC-01/18-119, Pre-Trial Chamber I, International Criminal Court, 16 March 2020, para 9 (arguing that “the Court’s jurisdiction in this matter cannot be established without taking a position on core issues in the Israeli-Palestinian conflict, such as Palestinian statehood, the scope of the Palestinian territory, and the status of Jerusalem—issues that go to the heart of the legal interests, rights, and obligations of the parties”). Situation in the State of Palestine (2020), Corrigendum to “Submissions Pursuant to Rule 103 (The Israel Forever Foundation)”, ICC-01/18108-Corr, Pre-Trial Chamber I, International Criminal Court, 20 March 2020, para 65; Situation in the State of Palestine (2020), Amicus Curiae Observations of Prof Laurie Blank, Dr Matthijs de Blois, Prof Geoffrey Corn, Dr Daphné Richemond-Barak, Prof Gregory Rose, Prof Robbie Sabel, Prof Gil Troy and Mr Andrew Tucker, ICC-01/18-93, Pre-Trial Chamber I, International Criminal Court, 16 March 2020, para 30. 122 Situation in the State of Palestine (2021), Decision on the ‘Prosecution request pursuant to Article 19(3) for a ruling on the court’s territorial jurisdiction in Palestine’, ICC-01/18-143, Pre-Trial Chamber I, International Criminal Court, 5 February 2021, para 59. 123 Ibid. 124 Ibid., para 60. 125 Ibid.

156  Brian McGarry and Nasim Zargarinejad third-party interventions with the Monetary Gold principle. Moreover, the different jurisdictions of the ICC and the ICJ cannot justify a general inapplicability of the Monetary Gold principle in ICC cases. The beating heart of Monetary Gold prevents any international tribunal from determining the legal rights and obligations of states which have not consented to this. Relying on the different jurisdictions of the two courts is unpersuasive since, as discussed earlier with respect to the crime of aggression, the ICC might be asked to decide upon the responsibility of a non-consenting state. To reject the Monetary Gold principle in this particular case, the ICC Chamber could have instead clarified why determining Israel’s territorial rights does not constitute the subject matter of the ICC’s decision on the merits. 6.3.5  The European Court of Human Rights

The European Court of Human Rights (ECtHR) has jurisdiction to hear complaints concerning violations of the European Convention on Human Rights (ECHR), whether raised by individuals or states.126 Article 33 of the ECHR gives every contracting state the right to invoke the responsibility of other contracting states for breaching the Convention, regardless of whether that state is directly impacted by the breach. The obligations covered in the ECHR may thus be viewed as obligations erga omnes partes.127 The Convention also concerns certain obligations erga omnes to which all states are subject under customary international law, such as slavery, torture and discrimination. Thus, the ECtHR is very different from the other courts and tribunals discussed previously, as it gives individuals legal standing to bring cases concerning injuries suffered in the violation of obligations erga omnes. The Monetary Gold principle has been raised in the proceedings of the ECtHR, notably in cases in which state parties to the convention committed the wrongful act jointly with non-state parties to the convention. For example, in Bankovic and Others v. Belgium and Nine Other Contracting States, respondent states argued that to decide on the merits, the ECtHR must rule on the rights and obligations of the United States, Canada and NATO—neither contracting parties to the ECHR nor parties to the case. This argument was left unaddressed since the ECtHR dismissed the case on other grounds.128 However, given that the ECHR is the source of the primary obligations in ECtHR cases, it is not clear how the Monetary Gold principle would pave its way into such

126 Article 33: “Any High Contracting Party may refer to the Court any alleged breach of the provisions of the Convention and the Protocols thereto by another High Contracting Party.” Article 34: “The Court may receive applications from any person, nongovernmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.” 127 On the nature of obligations erga omnes partes, see section 6.1 of the present chapter. 128 Bankovic and Others v. Belgium and Nine Other Contracting States App no 52207/99 (ECHR, 12 December 2001) para 31.

All that Glitters Is Not Monetary Gold  157 proceedings. In principle, a third state’s rights or obligations might become central to a case before the ECtHR under one of two scenarios: first, as an ECHR contracting party which has contributed to another contracting party’s breach of the Convention; or second, as a contracting party which has undertaken a joint action with a non-party to the ECHR. The first scenario appears to be highly improbable. Due to the compulsory jurisdiction of the ECtHR, the claimant can in principle preclude the application of the indispensable party rule by bringing a case against all responsible states. As to the second scenario, the Monetary Gold objection is ineffective because non-parties to the Convention do not have any ECHR obligations that could be affected by a ruling of the ECtHR. The ECtHR has indeed confirmed this by stating that it cannot “govern the actions of states not parties to it.”129 The case law of the ECtHR proves this point. The Monetary Gold principle did not prevent the ECtHR from deciding on the merits of three cases in which the violation of the ECHR occurred as a result of actions taken by the state in conjunction with non-contracting states. In the El-Masri v. Macedonia case, Mr El-Masri, a German national of Lebanese birth, was arrested by Macedonian agents and transferred to a CIA “rendition team,” which then transferred him to Afghanistan, where he was placed under ill treatment.130 In its judgment, the ECtHR found that: [T]he detention of terrorist suspects within the “rendition” programme run by the US authorities has already been found to have been arbitrary in other similar cases...In such circumstances, the Court considers that it should have been clear to the Macedonian authorities that, having been handed over into the custody of the US authorities, the applicant faced a real risk of a flagrant violation of his rights under Article 5.131 Having found this, the court considered Macedonia responsible for the duration in which the applicant was detained by the CIA. This was due to the fact that Macedonia had failed to protect the applicant from being detained and also because it “actively facilitated the detention of Mr. El-Masri in Afghanistan by handing him over to the CIA” despite being aware of the risk of such a transfer.132 Likewise, the fact that the CIA was involved in the process of violating individuals’ rights did not prevent the ECtHR from exercising its jurisdiction in two other cases. In the Al Nashiri v. Poland case, the ECtHR held that “the torture inflicted on the applicant at the Stare Kiejkuty black site were the exclusive responsibility of the CIA” and that “it is unlikely that the Polish officials witnessed or knew exactly what happened inside the facility.”133 Nevertheless, the ECtHR found 129 Ibid., para 83. 130 Case of El-Masri v. The Former Yugoslav Republic of Macedonia App no 39630/09 (ECHR, 13 December 2012) paras 1 and 17–21. 131 Ibid., para 239. 132 Ibid. 133 Case of Al Nashiri v. Poland App no 28761/11 (ECHR, 24 July 2014) para 517.

158  Brian McGarry and Nasim Zargarinejad Poland responsible for breaching Article 3 of the ECHR (the prohibition of torture). The ECtHR held that according to the ECHR, Poland was required to take steps in order to ensure that no one within its jurisdiction is subjected to torture.134 Nevertheless, Poland facilitated the whole process of subjecting the applicant to torture and created the conditions for it to happen contrary to its obligations under the ECHR.135 The ECtHR found that Poland’s actions amounted to “complicity in the HVD Programme”136 and that Poland was aware of the nature and purposes of the CIA’s activities on its territory. Having reached this point, it decided that Poland was responsible for its “acquiescence and connivance” in the HVD Program. In the Husayn (Abu Zubaydah) v. Poland case, the ECtHR reached similar findings as to the torture of the applicant in the same location under “the exclusive responsibility of the CIA,” as well as Poland’s “acquiescence and connivance” in the HVD Program.137 These decisions show that the ECtHR will make findings concerning a state’s legal interests regardless of whether that state is a party to the ECHR. This fact would be highlighted in the case of obligations such as torture since the prohibition of torture is an obligation erga omnes under customary international law. Therefore, while the US is bound by neither the prohibition of torture under the ECHR nor the decisions of the ECtHR, any findings on its obligations or responsibility for committing torture comprise a decision concerning its legal interests. Lastly, the practice of the ECtHR with respect to non-parties to the ECHR seems to be similar to the ICJ’s treatment of states which have ceased to exist. The ICJ declined to apply the Monetary Gold principle in the Croatia v. Serbia case where the interests of the Socialist Federal Republic of Yugoslavia were alleged to be intertwined. The court reasoned that this principle has no application where “a state no longer possesses any rights and is incapable of giving or withholding consent to the jurisdiction of the court.”138 The US, likewise, cannot possess any rights under the ECHR nor can it consent to the jurisdiction of the ECtHR. 6.3.6  The World Trade Organization

Some of the provisions within the legal framework of the World Trade Organization (WTO) are considered to be the subject of the collective interest of all member states.139 By way of example, Article 4 of the Agreement on Subsidies and

134 Ibid., para 509. 135 Ibid., para 517. 136 The HVD was a program established by the CIA to detain and interrogate terrorists “at sites abroad.” This programme was also called the Rendition Detention Interrogation Program. See: ibid., para 48. 137 Case of Husayn (Abu Zubaydah) v. Poland App no 7511/13 (ECHR, 24 July 2014) para 512. 138 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment, I.C.J. Reports 2015, para 116. 139 See generally Christian Tietje, Andrej Lang, ‘Community Interests in World Trade Law’ in Eyal Benvenisti and Georg Nolte (eds), Community Interests Across International Law (Oxford Uni-

All that Glitters Is Not Monetary Gold  159 Countervailing Measures allows any WTO member to instigate a complaint whenever it “has reason to believe that a prohibited subsidy is being granted or maintained by another Member.”140 In the US—FSC case (Article 22.6 Arbitration), the arbitrator found the export-contingent subsidies “are prohibited per se”141 and are “an erga omnes obligation owed in its entirety to each and every Member.”142 Therefore, members “are required simply to establish the existence of a measure that is, as a matter of principle, expressly prohibited.”143 Having established that erga omnes obligations might also appear in the WTO context, the question now is whether the WTO legal system is open to the application of the Monetary Gold principle. Indeed, the mandatory jurisdiction of the Dispute Settlement Understanding (DSU) allows the complaining state to instigate its claim against any wrongdoing state and therefore, in the cases of joint conduct, the complaining state can take actions against all wrongdoing countries. Despite this, the question of indispensable parties was addressed in the Turkey— Restrictions on Imports of Textiles and Clothing Productions case.144 In this case, India complained about Turkey’s actions that were taken in accordance with a regional trade agreement between Turkey and the European Communities. Turkey, in response, argued that the European Communities should also be a party to the case.145 Moreover, Turkey alleged that its measures should be also attributed to the Turkey–EC customs union on the ground that the complained measures stemmed from the Turkey–EC customs union.146 In response, the panel found that whenever it can reach a decision without an examination of the position of third parties, it must not dismiss the case.147 It noted that: In the present dispute, there are no claims against the European Communities before us that would need to be determined in order for the Panel to assess the compatibility of the Turkish measures with the WTO Agreement.148

versity Press 2018). See also: Tarcisio Gazzini, ‘The Legal Nature of WTO Obligations and the Consequences of Their Violation’ (2006) 17 (4) European Journal of International Law 723. 140 World Trade Organization, Agreement on Subsidies and Countervailing Measures, 15 April 1994, Article 4(1). 141 United States—Tax Treatment for ‘Foreign Sales Corporations,’ Recourse to Arbitration by the United States under Article 22.6 of the DSU and Article 4.11 of the SCM Agreement—Decision of the Arbitrator, 30 August 2002, WT/DS108/ARB, para 5.39. 142 Ibid., para 6.10. 143 Ibid., para 5.39. 144 Turkey-Restrictions on Imports of Textiles and Clothing Productions, Report of the Panel, 31 May 1999, WT/DS34/R. 145 Ibid., para 9.4. 146 Ibid., paras 3.1 and 3.33. 147 Ibid., para 9.10. 148 Ibid.

160  Brian McGarry and Nasim Zargarinejad After articulating this, the panel added that “there is no WTO concept of ‘essential parties.’”149 The panel did not explain the reason for this broad observation. But it then elaborated on why the European Communities cannot be an essential party to this particular case:150 Based on our terms of reference and the fact that we have decided … not to examine the GATT/WTO compatibility of the Turkey-EC customs union, we consider that the European Communities was not an essential party to this dispute. Turning to the allegations that Turkey’s actions must be attributed to the Turkey– EC customs union, the panel rejected this allegation on two grounds. First, the panel found that the Turkey–EC customs union did not have authority to pass legislation applicable to Turkey.151 Second, the panel noticed that the Turkey–EC customs union is not a WTO Member, which deprives it of having legal standing for the purpose of WTO law and its dispute settlement procedures. The panel thus concluded that the measures were Turkey’s measures only,152 but it also found that “Turkey could reasonably be held responsible for the measures taken by the Turkey-EC customs union.”153 These parts of the panel report regarding the competence of the Turkey–EC customs union and its attribution of responsibility to Turkey demonstrate that WTO panels are unconcerned about making findings that may implicate the legal interests of public entities which have no legal standing in WTO dispute settlement. Peeling back these case-specific complexities, the panel’s broader assertion concerning the inapplicability of the Monetary Gold principle in WTO proceedings appears most defensible in light of the compulsory nature of jurisdiction over WTO members. 6.3.7  Advisory Proceedings

In addition to the power to decide a contentious case submitted, some international courts are vested with an advisory jurisdiction.154 While in principle, it can be assumed that the request for an advisory opinion relates to a pending dispute

149 Ibid., para 9.11. 150 Ibid. 151 Ibid., para 9.40. 152 Ibid., para 9.41 (“Importantly, we note that the WTO dispute settlement system is based on Member’s rights; is accessible to Members only; and is enforced and monitored by Members only. The Turkey-EC customs union is not a WTO Member, and in that respect does not have any autonomous legal standing for the purpose of WTO law and therefore its dispute settlement procedures. Moreover, the European Communities’ import restrictions appear a priori to be WTO compatible and could not be the object of any panel recommendation that the European Communities brings its measure into conformity with the WTO Agreement, as required by Article 19 of the DSU.”). 153 Ibid., para 9.42. 154 Among international courts discussed above, the ICJ, ITLOS and the ECtHR enjoy advisory jurisdiction. See Article 65 of the ICJ Statute, Article 191 of the UNCLOS concerning the advisory

All that Glitters Is Not Monetary Gold  161 between states, the inherent distinctions between the contentious and advisory jurisdiction of courts calls the applicability of the Monetary Gold principle in the latter into question. First, unlike contentious cases, the consent of states is not a precondition for the exercise of jurisdiction of a court in advisory proceedings.155 Second, despite its authority,156 advisory opinions are not binding upon any persons, be they interested states or the legal organisation which may have requested them.157 Therefore, the rights and obligations of states cannot be adjudicated in an advisory opinion in a strict sense.158 Although not having binding force, the advisory opinion of a court may contain determinations on the rights and obligations of states. Furthermore, as has been shown in the case of Mauritius/Maldives, an advisory opinion might be later invoked against a state whose rights and responsibilities were implicitly decided in an advisory opinion.159 In light of this, it is necessary to evaluate the broader significance of state consent in advisory procedures. The concept of indispensable parties became an issue in the Eastern Carelia proceedings before the Permanent Court of International Justice (PCIJ). The Council of the League of Nations requested the PCIJ to issue an opinion on whether the declaration of Russia regarding the autonomy of Eastern Carelia—annexed to the Treaty of Peace between Finland and Russia—constituted an international obligation for Russia.160 The PCIJ refused to give an advisory opinion, emphasising the principle of consent in solving disputes between states.161 Reading the case more closely, it is evident that Russia’s position also generated significant practical challenges for the court: It appears now to be very doubtful whether there would be available to the Court materials sufficient to enable it to arrive at any judicial conclusion upon the question of fact … under ordinary circumstances, it is certainly expedient that the facts upon which the opinion of the Court is desired should

jurisdiction of the Seabed Disputes Chamber of ITLOS, Article 21 of the Statute of the ITLOS and Article 138 of its Rules and Article 48 of the ECHR. 155 United Nations, Statute of the International Court of Justice, 18 April 1946, Article 36(1) and Article 65. 156 Pierre d’Argent, ‘Advisory Opinions, Article 65’ in Andreas Zimmermann, Christian J. Tams, Karin Oellers-Frahm and Christian Tomuschat (eds), The Statute of the International Court of Justice: A Commentary (3rd edn, Oxford University Press 2019) 1809. 157 Ibid., 1808–1809. 158 It is worth noting that the “preliminary objections” does not exist in the advisory proceedings and as it has been seen above, the Monetary Gold principle, where relevant, has been raised in those objections which will be addressed by the courts in their decisions on the jurisdiction. In contrast, in the advisory proceedings, states can participate in the proceeding by submitting written and oral statements if they “likely to be able to furnish information on the question.” See United Nations, Statute of the International Court of Justice, 18 April 1946, Article 66. 159 See section 6.3.2. 160 Status of the Eastern Carelia (1923) PCIJ Series B05, p. 8. 161 Ibid., p. 27.

162  Brian McGarry and Nasim Zargarinejad not be in controversy, and it should not be left to the Court itself to ascertain what they are.162 The ICJ, however, would later note the difference between its advisory proceedings and contentious cases with respect to the consent of states, “even where the Request for an Opinion relates to a legal question actually pending between states.”163 In the ICJ’s view, the existence of a bilateral dispute does not per se bar the Court from giving the advisory opinion requested,164 as advisory opinions have no binding force. In Peace Treaties, the Court stressed that “no state, whether a member of the United Nations or not, can prevent the giving of an Advisory Opinion which the United Nations considers to be desirable in order to obtain enlightenment as to the course of action it should take.”165 Notwithstanding the foregoing, the consent of states is not an entirely irrelevant consideration in the ICJ’s advisory proceedings, as it may impact the discretion of the Court to exercise its advisory jurisdiction. The ICJ has stressed that there are limits to its “duty to reply” to a request for an advisory opinion,166 and “the consent of an interested state continues to be relevant, nor for the Court’s competence, but for the appreciation of the propriety of giving an opinion.”167 Judicial propriety requires the Court to decline to render an advisory opinion when “to give a reply would have the effect of circumventing the principle” of consent to judicial settlement.168 This non-circumvention rule may share some similarities with the Monetary Gold principle, as both can prevent a court from exercising jurisdiction in the absence of a particular state’s consent to dispute settlement. But the rationales

162 Ibid., p. 28. See further: Brian McGarry and Yusra Suedi, ‘Judicial Reasoning and Non-State Participation before Inter-State Courts and Tribunals’ (2022) 21 (1) The Law and Practice of International Courts and Tribunals 123, 125-129. 163 Interpretation of Peace Treaties, Advisory Opinion: I.C.J. Reports 1950, p. 71. 164 Legal Consequence of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, para 47 (“The Court observes that the lack of consent to the court’s contentious jurisdiction by interested states has no bearing on the court’s jurisdiction to give an advisory opinion … The Court did however examine the opposition of certain interested states to the request by the General Assembly in the context of issues of judicial propriety”). 165 Interpretation of Peace Treaties, Advisory Opinion: I.C.J. Reports 1950. 166 Ibid. 167 Western Sahara, Advisory Opinion, 1.C.J. Reports 1975, paras 32–33. 168 Ibid., para 25. In ICJ advisory proceedings, judicial propriety is essentially analogous to the concept of admissibility in contentious cases. Both concepts refer to the question of whether, irrespective of the Court’s jurisdiction to proceed, there are reasons why it should not do so. See Alina Kaczorowska-Ireland, ‘Judicial Propriety: International Adjudication’ (2020) Max Planck Encyclopedia of Public International Law para 4. See further: Hugh Thirlway, The Law and Procedure of the International Court of Justice: Fifty Years of Jurisprudence (Oxford University Press 2013) 868 (defining judicial propriety as “circumstances in which the court must (or should) refrain from giving a decision or opinion in order to ‘safeguard the judicial function.’”

All that Glitters Is Not Monetary Gold  163 behind these doctrines are distinct. The Monetary Gold principle protects nonconsenting states, while the non-circumvention rule protects the judicial character of the ICJ. Although the Court recognises the principle of non-circumvention in theory, it has not rejected a request for an advisory opinion on this basis in practice.169 The same was true of its predecessor’s reasoning in Eastern Carelia, as discussed earlier. The PCIJ’s enigmatic refusal to answer the question presented in those proceedings may be best understood as an exercise of judicial propriety, rather than a reliance on the principle of non-circumvention.170 This jurisprudence, coupled with the traditionally understood difference between contentious and advisory proceedings, suggests that the Monetary Gold principle finds no clear application in the latter. As such, one should not extrapolate too much from the advisory jurisprudence of international courts and tribunals when characterising this principle in contentious cases—whether instituted in the public interest or otherwise. 6.4 Concluding Observations The Monetary Gold principle may arise in disputes concerning the breach of erga omnes obligations, in particular when this results from the joint conduct of multiple states. Of course, if the responsibility of the respondent state can be decided without requiring, as a condition precedent, a finding of another contributing state’s responsibility, a court may—following the ICJ’s practice in the Nauru case—find the Monetary Gold principle inapplicable in that instance. The principle’s application is also limited in instances where the rights or obligations of a third state have already been determined by a competent international authority. We have seen this idea build across a range of institutional dynamics: the ICJ declined to rule out this premise in East Timor; the Larsen/ 169 See: Western Sahara, Advisory Opinion, I.C.J. Reports 1975, para 34; Legal Consequences of the Construction of a Wal1 in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, paras 47–50; Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, I.C.J. Reports 2019, para 90. While the ICJ refused to give an advisory opinion in the Legality of the Use by a State of Nuclear Weapons in Armed Conflict case, this was owing to the principle of speciality under the law of international organisations (i.e., the Court found that the question submitted by the World Health Organization fell beyond the scope of its functions). See: Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, I.C.J. Reports 1996, para 28. See also, answering the question posed, but in a manner evoking the principle of non liquet in contentious proceedings: Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (“[T]he Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake”). 170 See Hugh Thirlway, The Law and Procedure of the International Court of Justice: Fifty Years of Jurisprudence (Oxford University Press 2013), 823 (arguing that “[a] key sentence in the [Eastern Carelia] decision, frequently quoted since, was: ‘The Court, being a court of Justice, cannot, even in giving an advisory opinion, depart from the essential rules governing their activity as a Court’ and this seems more directed to propriety than to questions of jurisdiction properly so-called”).

164  Brian McGarry and Nasim Zargarinejad Hawaiian Kingdom tribunal opined that a Security Council resolution could limit the principle’s application in arbitration; and most recently, the Special Chamber of ITLOS in Mauritius/Maldives dispositively ruled that an ICJ advisory opinion had extinguished the possibility of a successful Monetary Gold objection in that case. In addition, an institutional court may dismiss an objection based on the Monetary Gold principle if non-parties are unable to consent to or object to its jurisdiction due to a lack of access to the court. For example, when it is impossible for a non-party to a case to become a contracting party to the constitutive instrument of the relevant court, such courts have not dismissed these cases on the basis that the legal interests of that state or organisation may form the “very subjectmatter” of the decision. This issue has been most clearly illustrated in the way the ECtHR has handled situations in which a state party to the ECHR and a non-contracting state have jointly acted in a way which is inconsistent with obligations enshrined in the ECHR. As shown in the present chapter, the ECtHR does not refuse to adjudicate the responsibility of a state party to the ECHR simply because the conduct leading to such a breach has been committed by both the state party and a non-contracting state. Moreover, the Monetary Gold principle appears to be inapplicable where a court enjoys compulsory jurisdiction based upon its constitutive treaty. As the principle serves to bar a court from determining the rights and responsibilities of non-consenting states, it does not seem to arise in such situations where the concerned state has already given its consent pursuant to such convention. However, this finding is logically limited to systems of “pure” compulsory jurisdiction (such as WTO dispute settlement), rather than those which permit reservations or optional exceptions to compulsory jurisdiction (such as UNCLOS dispute settlement). All of the international courts covered in this chapter receive instances of forms of public interest litigation. Some international tribunals, however, have more limited competence than others in this respect. For example, whereas UNCLOS primarily regulates bilateral obligations of states toward one another, the ICJ (as a court with general competence) and the ECtHR (as a court with jurisdiction to hear violations of human rights norms) naturally enjoy more opportunities to decide cases serving the public interest. Yet between these two courts, the Monetary Gold principle finds application only before the ICJ. As discussed earlier, the ECtHR applies only its constitutive treaty—and thus does not rule on the responsibility of non-contracting states—and moreover enjoys compulsory jurisdiction, leaving the Monetary Gold principle practically inapplicable to contracting states. It is thus misleading to attempt to characterise the principle’s application to public interest litigation generally. Its distinct application in these different fora is due to the systemic modalities of the various institutions in which such litigation plays out. The ICJ in particular has shown that it is prepared to adjudicate if it can decide on the parties’ responsibilities without entering into the responsibility of other states, such as those which may have contributed to a breach of international law. As we have seen, the Monetary Gold principle arises only when

All that Glitters Is Not Monetary Gold  165 a court or tribunal would otherwise be compelled to decide on the lawfulness of a third state’s conduct (i.e., in order to answer questions posed in the parties’ submissions). As a function of consensual jurisdiction, the principle is a “barrier” to public interest litigation only insofar as one considers our Westphalian world a barrier to legal utopia. Monetary Gold remains with us and remains a fairly straightforward decision. Yet the subsequent case lineage of its namesake principle—in disputes raising public interests unseen in that 1954 judgment—has revealed tensions which will continue to reverberate across the spectrum of international dispute settlement. Bibliography Books Ahmadov F, The Right of Actio Popularis before International Courts and Tribunals (Brill 2018). Crawford J, State Responsibility: The General Part (CUP 2013). Tams C, Enforcing Obligations Erga Omnes in International Law (Cambridge Studies in International and Comparative Law 2005). Thirlway H, The Law and Procedure of the International Court of Justice: Fifty Years of Jurisprudence (OUP 2013). Articles Akande D and Tzanakopoulos A, ‘Treaty Law and ICC Jurisdiction Over the Crime of Aggression’ (2018) 20 (3) European Journal of International Law 939. Bassiouni MC, ‘International Crimes: Jus Cogens and Obligation Erga Omnes’ (1996) 59 (4) Law and Contemporary Problems 63. Bonafé B, ‘Adjudicative Bilateralism and Community Interests’ (2021) 115 American Journal of International Law Unbound 164. Chinkin C, ‘Symposium: The East Timor Case before the International Court of Justice’ (1993) 4 European Journal of International Law 206. Eichberger F, ‘The Legal Effect of ICJ Advisory Opinions Redefined? The Mauritius/ Maldives Delimitation Case — Judgment on Preliminary Objections’ (2021) 22 (2) Melbourne Journal of International Law 1. Gazzini T, ‘The Legal Nature of WTO Obligations and the Consequences of Their Violation’ (2006) 17 (4) European Journal of International Law 723. McGarry B and Suedi Y, ‘Judicial Reasoning and Non-State Participation before Inter-State Courts and Tribunals’ (2022) 21 (1) The Law and Practice of International Courts and Tribunals 123. McGarry B, ‘Third Parties and Insular Features after the South China Sea Arbitration’ (2017) 35 Chinese (Taiwan) Yearbook of International Law and Affairs 99. Mollengarden Z and Zamir N, ‘The Monetary Gold Principle: Back to Basics’ (2021) 115 American Journal of International Law 1. Pomson O, ‘Does the Monetary Gold Principle Apply to International Courts and Tribunals Generally?’ (2019) 10 (1) Journal of International Dispute Settlement 88. Ruys T, ‘Legal Standing and Public Interest Litigation—Are All Erga Omnes Breaches Equal?’ (2021) 20 (3) Chinese Journal of International Law 547.

166  Brian McGarry and Nasim Zargarinejad Urs P, ‘Obligations Erga Omnes and the Question of Standing before the International Court of Justice’ (2021) 34 (2) Leiden Journal of International Law 505. Zamir N, ‘The Applicability of the Monetary Gold Principle in International Arbitration’ (2017) 33 (4) Arbitration International 523. Chapters in Edited Volumes Bonafé B, ‘Indispensable Party’ in Max Planck Encyclopedias of International Law (Oxford University Press 2018), https://opil​.ouplaw​.com​/home​/MPIL. d’Argent P, ‘Advisory Opinions, Article 65’ in Andreas Zimmermann, Christian J.Tams, Karin Oellers-Frahm, Christian Tomuschat (eds), The Statute of the International Court of Justice: A Commentary (3rd edn, OUP 2019). Fasia EE, ‘No Provision Left Behind – Law of the Sea Convention’s Dispute Settlement System and Obligations Erga Omnes’ (2021) 20 (3) The Law and Practice of International Courts and Tribunals 519. Giorgio G, ‘The Protection of General Interests in the International Community’ (2011) 364 Collected Courses of the Hague Academy of International Law 20. Kaczorowska-IrelandA, ‘Judicial Propriety: International Adjudication’ in Max Planck Encyclopedia of Public International Law (Oxford University Press 2020), https://opil​ .ouplaw​.com​/home​/MPIL. O'Gorman M and Sampford C, ‘Aggression and Monetary Gold Quo Vadis?’ in Patrick Keyzer, Vesselin Popovski and Charles Sampford (eds), Access to International Justice (Routledge 2015). Pellet A and Müller D, ‘Competence of the Court, Article 38’ in Andreas Zimmermann, Christian J. Tams, Karin Oellers-Frahm, Christian Tomuschat (eds), The Statute of the International Court of Justice: A Commentary (3rd edn, OUP 2019). Simma B, ‘From Bilateralism to Community Interest in International Law’ (1994) 250 Collected Courses of the Hague Academy of International Law 235. Tietje C and Lang A, ‘Community Interests in World Trade Law’ in Eyal Benvenisti and Georg Nolte (eds), Community Interests Across International Law (OUP 2018).

Cases Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation), Provisional Measures, Order of 16 March 2022, I.C.J. Reports 2022. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Provisional Measures, Order of 23 January 2020, I.C.J. Reports 2020. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Application instituting proceedings and Request for the indication of provisional measures, I.C.J. Reports 2019. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Written observations of The Gambia on the preliminary objections raised by Myanmar, I.C.J. Reports 2021. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Preliminary Objections, Judgment, I.C.J. Reports 2022. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment, I.C.J. Reports 2015.

All that Glitters Is Not Monetary Gold  167 Arbitral Award of 3 October 1899 (Guyana v. Venezuela), Preliminary Objection, I.C.J. Reports 2023. Bankovic and Others v. Belgium and Nine Other Contracting States App no 52207/99 (ECHR, 12 December 2001). Barcelona Traction, Light and Power Company, Limited, Judgment, I.C.J. Reports 1970. Case of Al Nashiri v. Poland App no 28761/11 (ECHR, 24 July 2014). Case of El-Masri v. The Former Yugoslav Republic of Macedonia App no 39630/09 (ECHR, 13 December 2012). Case of Husayn (Abu Zubaydah) v. Poland App no 7511/13 (ECHR, 24 July 2014). Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections of the Government of Australia, I.C.J. Reports 1990. Chevron Corporation and Texaco Petroleum Corporation v. Ecuador (II), Third Interim Award on Jurisdiction and Admissibility, 27 February 2012, Case No. 2009-23, Permanent Court of Arbitration. Continental Shelf (Libyan Arab Jarnahiriya/Malta), Application to Intervene, Judgment, I.C.J. Reports 1984. David R. Aven and Others v. Republic of Costa Rica (Award) ICSID Case No. UNCT/15/3, 2018. Dispute concerning Delimitation of the Maritime Boundary between Mauritius and Maldives in the Indian Ocean (Mauritius/Maldives), Judgment of 28 January 2021, International Tribunal for the Law of the Sea. East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995. Status of the Eastern Carelia (1923) PCIJ Series B05. Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, I.C.J. Reports 1986. Interpretation of Peace Treaties, Advisory Opinion: I.C.J. Reports 1950. Land and Maritime Boundary between Cameroon and Nigeria, Preliminary Objections, Judgment, I. C.J. Reports 1998. Larsen v. Hawaiian Kingdom, Award, 5 February 2001, Case No. 1999-01, Permanent Court of Arbitration. Legal Consequences cf the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004. Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, I.C.J. Reports 2019. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996. Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, I.C.J. Reports 1996. Case of the Monetary Gold Removed from Rome in 1943 (Preliminary Question), Judgment of June 15th,1954: I.C.J. Reports 1954. Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. Pakistan), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2016. Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom), Preliminary Objections of the United Kingdom, I.C.J. Reports 2015. Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. India), Counter-Memorial of the Republic of India, I.C.J. Reports 2015.

168  Brian McGarry and Nasim Zargarinejad Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v Pakistan), Counter-Memorial of Pakistan, I.C.J. Reports 2015. Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom), Dissenting opinion of Judge Cançado Trindade to the Judgment of 5 October 2016, I.C.J. Reports 2016. Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom), Separate opinion of Judge Tomka to the Judgment of 5 October 2016, I.C.J. Reports 2016. Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom), Separate opinion of Judge Bhandari to the Judgment of 5 October 2016, I.C.J. Reports 2016. Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom), Declaration of Judge Xue to the Judgment of 5 October 2016, I.C.J. Reports 2016. Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom), Dissenting opinion of Judge Crawford to the Judgment of 5 October 2016, I.C.J. Reports 2016. Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. India), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2016. Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. Pakistan), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2016. Ping An Life Insurance v. Belgium (Award) ICSID Case No. ARB/12/29, 2015. Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports 2012. Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, Advisory Opinion of 1 February 2011, International Tribunal for the Law of the Sea. Situation in the State of Palestine (2020), Amicus Curiae Observations of Prof. Laurie Blank, Dr. Matthijs de Blois, Prof. Geoffrey Corn, Dr. Daphné Richemond-Barak, Prof. Gregory Rose, Prof. Robbie Sabel, Prof. Gil Troy and Mr. Andrew Tucker, ICC-01/1893, Pre-Trial Chamber I, International Criminal Court, 16 March 2020. Situation in the State of Palestine (2020), Corrigendum to “Submissions Pursuant to Rule 103 (The Israel Forever Foundation)”, ICC-01/18-108-Corr, Pre-Trial Chamber I, International Criminal Court, 20 March 2020. Situation in the State of Palestine (2021), Decision on the “Prosecution request pursuant to Article 19(3) for a ruling on the court’s territorial jurisdiction in Palestine”, ICC-01/18143, Pre-Trial Chamber I, International Criminal Court, 5 February 2021. Situation in the State of Palestine (2020), Order setting the procedure and the schedule for the submission of observations (Situation in the State of Palestine), ICC-01/18-14, PreTrial Chamber I, International Criminal Court, 28 January 2020. Situation in the State of Palestine (2020), Prosecution request pursuant to Article 19(3) for a ruling on the court’s territorial jurisdiction in Palestine, ICC-01/18-12, Pre-Trial Chamber I, International Criminal Court, 22 January 2020. Situation in the State of Palestine (2020), The observations of the Republic of Uganda Pursuant to rule 103 of the Rules of Evidence and Procedure, ICC-01/18-119, Pre-Trial Chamber I, International Criminal Court, 16 March 2020.

All that Glitters Is Not Monetary Gold  169 South West Africa, Second Phase, Judgment, I.C.J. Reports 1966. The M/V Norstar Case (Panama v Italy, Preliminary Objections), Judgment of 4 November 2016, International Tribunal for the Law of the Sea. The South China Sea Arbitration (The Republic of the Philippines v. The People's Republic of China), Award on Jurisdiction and Admissibility, 29 October 2015, Case No 2013-19, Permanent Court of Arbitration. Turkey-Restrictions on Imports of Textiles and Clothing Productions, Report of the Panel, 31 May 1999, WT/DS34/R. United States — Tax Treatment for “Foreign Sales Corporations,” Recourse to Arbitration by the United States under Article 22.6 of the DSU and Article 4.11 of the SCM Agreement - Decision of the Arbitrator, 30 August 2002, WT/DS108/AR. Western Sahara, Advisory Opinion, 1.C.J. Reports 1975.

Documents Institut de Droit International, Resolution on Obligations Erga omnes in International Law (Krakow Session, 2005). International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, November 2001, Supplement No. 10 (A/56/10). United Nations, Charter of the United Nations, 24 October 1945. United Nations, Statute of the International Court of Justice, 18 April 1946. UN General Assembly, Convention on the Law of the Sea (UNCLOS), 10 December 1982. Institut de Droit International, ‘Universal Criminal Jurisdiction with regard to the Crime of Genocide, Crimes against Humanity and War Crimes’ Resolution (Krakow Session, 2005). UN General Assembly, Rome Statute of the International Criminal Court, 17 July 1998. World Trade Organization, Agreement on Subsidies and Countervailing Measures, 15 April 1994.

7

The Role of Advisory Opinions in Addressing Public Interest Issues Carlos A. Cruz Carrillo*

7.1 Introduction The use and interest in the advisory function of judicial bodies as a tool to elucidate the law has increased considerably in the last few years. On 12 December 2022, the Commission of Small Island States on Climate Change and International Law requested an advisory opinion from the International Tribunal for the Law of the Sea (ITLOS) on the legal consequences of climate change in the ocean.1 Similarly, Vanuatu successfully lobbied at the General Assembly of the United Nations to request an advisory opinion on climate change from the International Court of Justice (ICJ).2 In the context of the COVID-19 pandemic, the African Court of Human and Peoples’ Rights (AFCHPR) delivered an opinion on how to conduct elections in the context of COVID-19.3 Public interest issues, such as climate change or the COVID-19 pandemic, develop alongside society. Yet the existing law may not offer a prima facie reference on how to tackle such issues and triggers reflections on whether the legal framework is still useful to craft effective solutions.

1

* The author wishes to thank Justine Bendel, Yusra Suedi, Millicent McCreath and other reviewers for their valuable insights and comments on previous drafts of this chapter. 1 Request for Advisory Opinion submitted by the Commission of Small Island States on Climate Change and International Law, Order of 16 December 2022, ITLOS Reports 2022–2023, to be published; see Agreement for the Establishment of the Commission of Small Island States on Climate Change and International Law, 31 October 2021; David Freestone, Richard Barnes and Payam Akhavan, ‘Agreement for the Establishment of the Commission of Small Island States on Climate Change and International Law’ (2022) 37 (1) International Journal of Marine and Coastal Law 175–178. At the moment of writing, COSIS has six member states: Antigua and Barbuda, Palau, Tuvalu, Niue, Vanuatu and Saint Lucia. 2 Vanuatu ICJ Initiative, ‘ICJ Resolution’ (15 September 2022) accessed 11 November 2022. 3  The Right to Participate in the Government of One’s Country in the context of an election held during a public health emergency or a pandemic, such as the COVID-19 crisis, Advisory Opinion No. 001/2020 Requested by the Pan African Lawyers Union, 16 July 2021, African Court on Human and Peoples’ Rights. DOI:  10.4324/9781003433460-10

The Role of Advisory Opinions  171 It is well known that international judicial bodies assist in the development and clarification of the rules and principles of international law.4 Among their judicial functions, the advisory function is an alternative way to the contentious function, which assists in clarifying points of law in light of public interest issues. Regardless of their non-binding nature, advisory opinions enshrine authoritative statements of law5 which may pave the way for further legal and political actions. As seen in this chapter, the advisory jurisdiction is not monopolised by the ICJ any more and is now present among international and regional judicial bodies. Let us remember that the current proliferation of international judicial bodies is broadly a consequence of the need for a variety of international courts and tribunals, the multiplication of actors involved in dispute settlement as well as the increasing scope of international law.6 Naturally, the architecture of the advisory function has developed across judicial bodies with the same nature but with different operative features. For instance, the standing to request an advisory opinion in certain jurisdictions allows states and non-state actors to do so on behalf of an identified community. Furthermore, the degree of public participation during an advisory opinion goes from being a hermetic procedure to a more inclusive procedure. The plurality of actors enables using the advisory function as a venue to ventilate complex public interest issues and use them to craft solutions. Previous case law offers a fertile ground to track the impact of advisory opinions addressing public interest issues. The academic literature on advisory opinions generally focuses on the advisory jurisdiction of the ICJ. Yet, the mentioned proliferation of the advisory function requires an analysis of the opportunities and transcendence of requesting advisory opinions to address public interest issues from other international and regional judicial bodies. In this context, this chapter addresses three main aspects. First, it explains the notion of public interest in international law. Second, it maps the configuration of the advisory function of international and regional judicial bodies, emphasising the question of standing to request an opinion and the level of participation in the advisory proceedings. Third, by drawing on the 2011 ITLOS advisory opinions Responsibilities and obligations of States with respect to activities in the Area, the 2017 Inter-American Court of Human Rights (IACtHR) OC-23/17 The Environment and Human Rights, and the requests for an advisory opinions on climate change from the ICJ and ITLOS, this chapter tracks the legal effects of advisory opinions dealing with public interest matters.

4 Hersch Lauterpacht, The Development of International Law by the International Court (Cambridge University Press 1982) 5. 5  Dispute concerning Delimitation of the Maritime Boundary between Mauritius and Maldives in the Indian Ocean, Preliminary Objections, Judgment of 28 January 2021, International Tribunal for the Law of the Sea, ITLOS Reports 2020–2021, 17, paras. 203–205. 6  Laurence Boisson de Chazournes, ‘Plurality in the Fabric of International Courts and Tribunals: The Threads of a Managerial Approach’ (2017) 28 (1) European Journal of International Law 13, 30.

172  Carlos A. Cruz Carrillo 7.2 Public Interest in International Law As a manner of introduction, let us remember that the conception of a public interest in international law entails the existence of a common concern or interest towards compliance with an international obligation. According to Simma, a community interest is a consensus according to which respect for certain fundamental values is not to be left to the free disposition of states individually or inter se but is recognised and sanctioned by international law as a matter of concern to all states.7 In this regard, there are certain norms whose observance appertains the whole community. To complement this idea, Crawford defines “communitarian norm” as multilateral rights and obligations, established in the interest of and owed to the international community as a whole, entailing a recognised legal interest of each of its members to invoke compliance with it.8 Thus, it is possible to affirm that public interest litigation aims at enforcing the law when no one is specifically injured and there is the need to protect a common interest.9 In international adjudication, claims based on community interests appear in early cases such as the 1923 SS Wimbledon case. In that case, the Permanent Court of International Justice (PCIJ) accepted the claims brought by the United Kingdom, France, Italy and Japan against Germany to guarantee their freedom of transit through the Kiel Canal as an international strait.10 Afterwards, the ICJ recognised the character of certain obligations owed to the international community as a whole, in the Barcelona Traction case, calling them erga omnes obligations.11 Later on, it adopted the notion of erga omnes partes to denote the common interest among the state parties to a treaty.12 These developments opened a new era of public interest litigation where a state can initiate a case despite not being directly the injured state. In fact, some judges of the ICJ recognised that the idea of an actio popularis is now capable of a rational legal argument and a proper subject of litigation before the ICJ.13 According to Voeffray, bringing an actio popularis  7  Bruno Simma, From Bilateralism to Community Interest in International Law (Brill/Nijhoff 1994) 233.   8 James Crawford, Multilateral Rights and Obligations in International Law (Brill/Nijhoff 2006) 344.   9 Alan Boyle, Catherine Redgwell and Patricia Birnie, International Law and the Environment (4th edn, Oxford University Press 2021) 265–267. 10 S.S. Wimbledon, Britain et al. v. Germany (1923) PCIJ Series A01, p. 20. 11 Barcelona Traction, Light and Power Company, Limited, Judgment, I.C.J. Reports 1970, p. 3, para 33. The International Law Commission likewise endorse this position: International Law Commission, Draft Articles on the Responsibility of States for Internationally Wrongful Acts, with commentaries, Yearbook of the International Law Commission, 2001, vol. II, Part Two, Article 48, paras 2, 8–9. 12 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Provisional Measures, Order of 23 January 2020, I.C.J. Reports 2020, para 41 and 42; Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports 2012, para 68. Implicitly, the court followed this trend in: Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), Judgment, I.C.J. Reports 2014. 13 Nuclear Tests (Australia v. France), Joint Dissenting Opinion of Judges Oneyama, Dillard, Jimenez de Arechaga and Humphrey Waldock, I.C.J. Reports 1974, para 117. See: Priya Urs, ‘Obligations erga omnes and the question of standing before the International Court of Justice’ (2021) 34 Leiden Journal of International Law 505–525.

The Role of Advisory Opinions  173 before an international judicial organ depends on whether the applicant is entitled to access the international judicial body, whether the breaching state’s consent to jurisdiction is well defined to accept this type of action and whether the applicant is entitled to represent a common interest.14 These three elements could pose serious challenges to bringing an actio popularis before an international or regional court. For example, they may translate into issues of jurisdiction ratione personae, the accreditation of a legal interest and the indispensable need of a third-party state with a legal interest, among others. Yet, as suggested by Tams, the operationalisation of community interests should be approached by international lawyers confidently, pragmatically, holistically and creatively.15 In fact, public interest litigation is permeating among some compliance mechanisms established by multilateral environmental agreements. These mechanisms enable state parties and members of the public to file a complaint against a party that is failing to comply with its obligations on behalf of the community interest.16 An alternative to litigating public interest issues is the advisory function, which some authors recognise as an alternative venue to pursue public interest litigation.17 Contrary to the contentious function, requesting an advisory opinion mainly requires identifying a requesting entity (international organisation, state or other) entitled to request an opinion and formulating a legal question within the scope of the judicial body. The main purpose of an advisory opinion is to provide a statement of law to guide the conduct of entities part of a legal community. Therefore, it is possible to assert that the nature of advisory opinions entails a public interest component inasmuch as its ultimate goal is offering an answer to a legal question from which it derives problems of international law.18 The answers are the outcome of a judicial distillation process on which members of a legal system can rely to perform their rights and obligations. In this context, this chapter will analyse the advisory function across international judicial bodies, paying special attention to

14 François Voeffray, L’actio popularis ou la défense de l’intérêt collectif devant les juridictions internationales (Presses Universitaires de France 2004) 320–323. 15 Christian Tams, ‘Individual States as Guardians of Community Interests’ in Ulrich Falsternath et al. (eds), From Bilateralism to Community Interest: Essays in Honour of Bruno Simma (Oxford University Press 2011) 403. 16 E.g. the mechanism under the Aarhus Convention enables NGOs to initiate a procedure against a party. UN Economic Commission for Europe, Decision 1/7: Review of Compliance, Doc. ECE/ MP.PP/2/Add.8, 2 April 2014, para 18; Jutta Brunnée, ‘International Environmental Law and Community Interests’ in Eyal Benvenisti and Georg Nolte (eds), Community Interests Across International Law (Oxford University Press 2018), 172–174; Alan Boyle, Catherine Redgwell and Patricia Birnie, International Law and the Environment (4th edn, Oxford University Press 2021) 255. 17 James Crawford, State Responsibility: The General Part (Cambridge University Press 2013) 374– 375; Alan Boyle, Catherine Redgwell and Patricia Birnie, International Law and the Environment (4th edn, Oxford University Press 2021) 266–267. 18 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, I.C.J. Reports 2010, para 25; Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the Area, Advisory Opinion of 1 February 2011, International Tribunal for the Law of the Sea, ITLOS Reports 2011, p. 25, para 39.

174  Carlos A. Cruz Carrillo the question of who can request an advisory opinion, who can participate in the proceedings and the legal consequences of an opinion for the public interest. 7.3 Public Interest Advisory Opinions 7.3.1  Advisory Function across Judicial Bodies

The origins of the advisory jurisdiction in international adjudication can be traced back to the drafting of the statute of the PCIJ, where the Assembly, the Council and the Secretary General of the League of Nations were entitled to request advisory opinions to perform its functions.19 The advisory proceedings before the PCIJ almost equated to an “advisory arbitration”20 in the sense that states relied on it to prevent a contentious case. For instance, in Jurisdiction of the European Commission of the Danube between Galatzs and Braila, France, Great Britain, Italy and Romania concluded an agreement requiring the Council of the League of Nations to request an advisory opinion from the PCIJ on three legal questions related to the functions of the European Commission of the Danube.21 In similar advisory proceedings before the PCIJ, the Council expressly required the concerned states to assist the court by delivering the relevant documentation to inform the decision of the court.22 The ICJ inherited the advisory function from the PCIJ,23 but states stopped the practice of advisory arbitrations. Yet states can appoint judges ad hoc when the legal question object of an advisory opinion is pending between two or more states.24 Today, some international judicial bodies and non-judicial bodies25 can deliver advisory opinions under different architectures with common elements. Some 19 League of Nations, Statute of the Permanent Court of International Justice, 16 December 1920, Article 65. 20 Albert Lapradelle and Démètre Negulesco, ‘Rapport sur la nature Juridique des Avis Consultatifs de la Cour Permanente de Justice Internationale – leur valeur et leur portée positive en droit International’ (1928) 34 Annuaire Institut de Droit International 453. 21 Jurisdiction of European Commission of Danube Between Galatz and Braila (1927) PCIJ Series B14, pp. 6–11. 22  Question of Jaworzina (Polish-Czechoslovakian Frontier)(1923) PCIJ Series B08, pp. 10–16. Also see: Question of the Monastery of Saint-Naoum (Albanian Frontier) (1924) PCIJ Series B09, pp. 6–9; The Greco-Bulgarian Communities (1930) PCIJ Series B17, pp. 4–5. This practice is still visible in South West Africa advisory opinion. See: UN General Assembly, Question of Spanish Sahara, 13 December 1974, A/RES/3292, para 2. 23  For an historical account, see: Robert Kolb, The International Court of Justice (Hart Publishing 2013) 1026–1032; Marika Giles Samson and Douglas Guilfoyle, ‘The Permanent Court of International Justice and the Invention of International Advisory Jurisdiction’ in Malgosia Fitzmaurice and Christian J Tams, Legacies of the Permanent Court of International Justice (Brill/Nijhoff 2013) 41–68. 24 International Court of Justice, Rules of Court, 14 April 1978, Rule 102 (3); Western Sahara, Order of 22 May 1975, I.C.J. Reports 1975, p. 6. See: Eduardo Jiménez de Aréchaga, ‘Judges Ad-Hoc in Advisory Proceedings’ (1971) 31 Heidelberg Journal of International Law 697. 25  E.g. the advisory procedure under the 1992 UN Economic Commission for Europe Water Convention. See: UN Economic Commission for Europe, Decision VI/1 Support to Implementation and Compliance, Doc. ECE/MP-WAT/37/Add.2, 2012, paras 18–23.

The Role of Advisory Opinions  175 international courts define “advisory opinions” as a service provided by the court upon the request of an entity to assist in the performance of its activities in compliance with its international commitments.26 Other courts consider it as a tool to enhance the interaction between the court and national authorities in accordance with the principle of subsidiarity.27 According to Kolb, while exercising this function, judicial bodies are called upon to identify the abstract field in which the rules apply, their application to concrete situations and/or the legal consequences flowing from the application.28 From a functional approach, advisory opinions can be used in several ways, depending on the architecture of its advisory jurisdiction. The traditional advisory function comprises a requesting entity asking for an opinion on a legal question related to its functions or on how to perform its rights and obligations. As will be exposed, the interest to request an advisory opinion aims at obtaining legal guidelines to clarify the scope and content of a right and obligation for a better implementation or to interpret a provision in the light of current contexts. The traditional advisory function derives from a non-binding outcome but it does entail legal effects. Nevertheless, advisory opinions can perform other functions that may entail a binding outcome.29 Among these functions, we can list the following:

• Preliminary ruling. Advisory opinions may function as a “preliminary rul-

ing” mechanism where the judicial or arbitral body of another judicial system requests from an international judicial body an opinion on the interpretation and application of a particular provision. For example, the European Court of Human Rights (ECtHR) has been entrusted to render advisory opinions upon request of domestic high courts and tribunals of states parties to the European Convention on Human Rights.30 Arguably, the Seabed Dispute Chamber of ITLOS exercises a similar function in the context of commercial arbitration. If a commercial arbitral tribunal determines that its decision depends upon a ruling of the Seabed Dispute Chamber concerning the interpretation and application of

26  Cf. Request for Advisory Opinion submitted by the Sub-Regional Fisheries Commission, Advisory Opinion of 2 April 2015, International Tribunal for the Law of the Sea, ITLOS Reports 2015, p. 4, para 77; The Environment and Human Rights, Advisory Opinion OC-23/17 of 15 November 2017, Inter-American Court of Human Rights, para 23; Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226, para. 15. 27  Advisory Opinion No AOOJ 2019/001, Caribbean Court of Justice, 18 March 2020, para 2. 28 Robert Kolb, The International Court of Justice (Hart Publishing 2013) 1020. 29 See Roberto Ago, ‘“Binding” Advisory Opinions of the International Court of Justice’ (1991) 85 (3) American Journal of International Law 439–451; Anthony Aust, ‘Advisory Opinions’ (2010) 1 (1) Journal of International Dispute Settlement 123, 127. 30  Council of Europe, Protocol No. 16 to the Convention on the Protection of Human Rights and Fundamental Freedoms, 2 October 2013, Articles 1 (1) and 5; see Maria Dicosola et al., ‘The Prospective Role of Constitutional Courts in the Advisory Opinion Mechanism before the European Court of Human Rights: A First Comparative Assessment with the European Union and the InterAmerican System’ (2015) 16 (6) German Law Journal 1387.

176  Carlos A. Cruz Carrillo a provision of Part XI of UNCLOS, the Seabed Dispute Chamber should render a decision and this will be considered by the commercial arbitral tribunal.31 • Dispute settlement mechanism. Pursuant to some treaties, an advisory opinion works as a dispute settlement mechanism between a state party and an international organisation, with a binding outcome.32 For example, Article IX, Section 32 of the Convention on the Privileges and Immunities of the Specialised Agencies establishes that if a difference arises between one of the specialised agencies and a state member, an advisory opinion can be requested and it shall be accepted as decisive by the parties.33 This provision was the basis for the ICJ advisory opinion Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights. • Appellate stages. For many years, the statute of some administrative tribunals operating within the United Nations and some of its specialised agencies, allowed for the request of an advisory opinion from the ICJ as an appellate instance to challenge a judgment rendered by an administrative tribunal.34 This procedure was unequal among the parties since only the organisation was entitled to request an opinion, but not the involved employers. As an attempt to balance these inequalities, the ICJ requested the involved organisations to transmit any observation of the claimants.35 Yet, due to these inequalities, in 2016, the use of advisory opinions as an appellate stage was abandoned. 7.3.2  Requesting Entities

Traditionally, the idea of an advisory jurisdiction was conceived to assist the League of Nations with the fulfilment of its tasks. Therefore, only international 31 UN General Assembly, Convention on the Law of the Sea, 10 December 1982, Article 188 (2) (a) and (b). 32  E.g International Atomic Energy Agency, Convention on the Privileges and Immunities of the International Atomic Energy Agency, 17 August 1959, p. 147, Art. Section 34; UN General Assembly, Convention on the Privileges and Immunities of the United Nations, 13 February 1946, Article VIII, section 30; see Christian Dominicè, ‘Request of Advisory Opinions in Contentious Cases?’ in Laurence Boisson de Chazournes et al. (eds), International Organisations and International Dispute Settlement: Trends and Prospects (Transnational Publishers 2002) 92–95. 33  UN General Assembly, Convention on the Privileges and Immunities of the Specialised Agencies, 21 November 1947, p. 261, Article IX, Section 32; Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, I.C.J. Reports 1999. 34 Application for Review of Judgment No. 158 of the United Nations Administrative Tribunal, Advisory Opinion, I.C.J. Reports 1973, para 39; Judgment No. 2867 of the Administrative Tribunal of the International Labour Organisation upon a Complaint Filed against the International Fund for Agricultural Development, Advisory Opinion, I.C.J. Reports 2012, para 27 and 29; see Hugh Thirlway, The Law and Procedure of the International Court of Justice: Fifty Years of Jurisprudence (Oxford University Press 2013) 1726. 35  Judgment No. 2867 of the Administrative Tribunal of the International Labour Organisation upon a Complaint Filed against the International Fund for Agricultural Development, Order of 29 April 2010, I.C.J. Reports 2010, para 4.

The Role of Advisory Opinions  177 organisations were entitled to request an opinion from the court. The same nomenclature prevailed in the ICJ despite attempts to include states in the nomenclature.36 Let us remember that international organisations are entrusted with the task of realising common goals.37 The UN General Assembly, Security Council or the International Seabed Authority represent the collective interest of member states, and by requesting advisory opinions, they are doing so on behalf of that collectivity. Therefore, in principle, the trustees of a community interest are international organisations. Nevertheless, a potential disadvantage for pursuing a public interest advisory opinion is the institutional proceedings that lead an international organisation to request an opinion. A clear example is the required majority at the UN General Assembly supporting a resolution that calls upon the assembly to request an opinion from the ICJ. The institutional machinery may frustrate the efforts of states in obtaining an advisory opinion on a legal issue of public interest, particularly when powerful states are unwilling to support such a request. With the appearance of other international judicial bodies, the configuration of their advisory jurisdiction opened the venue for states to request an opinion from the court without institutional intermediaries. Examples of this are the African Court of Human and Peoples’ Rights (AFCHPR), the Inter-American Court of Human Rights (IACtHR), the European Court of Human Rights (ECtHR) or the Caribbean Court of Justice (see Table 7.1). Arguably, the peculiar advisory jurisdiction of the plenary of the International Tribunal for the Law of the Sea (ITLOS) may allow states to request an opinion, in addition to intergovernmental organisations.38 Yet, it is true that states can refrain from requesting advisory opinions due to internal and external political factors. In these cases, members of the public may see the request of an opinion that could be necessary for fostering internal efforts become frustrated. Among the analysed courts, the AFCHPR stands as the one enabling a more diverse list of requesting entities. Article 4(1) of the Protocol to the African Charter on Human Rights and Peoples’ Rights lists four categories of entities entitled to request an opinion: a member state of the African Union, the African Union, an organ of the African Union or any African organisation recognised by the African Union.39 The AFCHPR has established that the fourth category includes both NGOs and intergovernmental organisations duly registered in a member state of the

36  Robert Kolb, The International Court of Justice (Hart Publishing 2013) 1050–1057. 37  Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, I.C.J. Reports 1996, para 19. 38 Rüdiger Wolfrum, ‘Advisory Opinions: Are they a Suitable Alternative for the Settlement of International Disputes?’ in Rüdiger Wolfrum et al. (eds), International Dispute Settlement: Room for Innovations? (Springer 2013) 54; P. Chandrasekhara Rao and Philippe Gautier (ed), The International Tribunal for the Law of the Sea: Law, Practice and Procedure (Edward Elgar Publishing 2018) 164. 39 Organisation of African Unity (OAU), Protocol to the African Charter on Human and People’s Rights on the Establishment of an African Court on Human and People’s Rights, 10 June 1998, Article 4 (1).

178  Carlos A. Cruz Carrillo Table 7.1 Advisory jurisdiction across international judicial bodies Judicial Body

Standing

International Court of Justice International Tribunal for the Law of the Sea Seabed Disputes Chamber of ITLOS Inter-American Court of Human Rights African Court on Human and Peoples’ Rights European Court of Human Rights Caribbean Court of Justice

International organisations.a International organisations and states.b

ECOWAS Court of Justice

International organisations.c States and intergovernmental organisations.d States, intergovernmental organisations and NGOs.e Committee of Ministers,f highest courts of contracting parties,g member states to the Oviedo Convention.h Member states to the Caribbean Community and the Caribbean Community.i Member states and organs of the ECOWAS Community.j

  United Nations, Charter of the United Nations, 24 October 1945, Article 96.  UN General Assembly, Annex VI to the United Nations Convention for the Law of the Sea, 10 December 1982, Article 21; Rules of the International Tribunal for the Law of the Sea, 28 October 1997, Article 138. c  UN General Assembly, Convention on the Law of the Sea, 10 December 1982, Articles 159 (10) and 191. d  Organisation of American States (OAS), American Convention on Human Rights, "Pact of San Jose", 22 November 1969, Article 64 (1). e  Organisation of African Unity (OAU), Protocol to the African Charter on Human and People's Rights on the Establishment of an African Court on Human and People's Rights, 10 June 1998, Article 4 (1). f   Under Article 47 of the European Convention on Human Rights. g  Council of Europe, Protocol No. 16 to the Convention on the Protection of Human Rights and Fundamental Freedoms, 2October 2013. h  Council of Europe, Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine, 4 March 1997, Article 29. i   Caribbean Community Secretariat, Agreement Establishing the Caribbean Court of Justice, 14 February 2001, Article XIII. j  Economic Community of West African States, Protocol A/P.l/7/91 on the Community Court of Justice, 6 July 1991, Article 10 (1). a

b

African Union.40 Additionally, the African Union should recognise these organisations by conferring an observer status or signing a Memorandum of Understanding or Cooperation.41 In fact, the lack of recognition by the African Union has resulted in the dismissal of at least three attempts to request an advisory opinion by NGOs.42 40 Request for Advisory Opinion by Socio-Economic Rights and Accountability Project (SERAP), Advisory Opinion No. 001/2013 of 26 May 2017, African Court on Human and Peoples’ Rights, para 46. 41 Ibid., para 64. 42 Request for Advisory Opinion by the Centre for Human Rights of the University of Pretoria and the Coalition of African Lesbian, No. 002/2015, 28 September 2017, African Court on Human and Peoples’ Rights, paras 56 and 57; Request for Advisory Opinion by the Centre for Human Rights,

The Role of Advisory Opinions  179 The door remains open for potential NGOs who manage to prove recognition by the African Union to request an advisory opinion. However, some commenters consider this may lead NGOs to turn their strategic litigation to other forums, such as the ECOWAS Court.43 Except for the AFCHPR, non-state actors cannot directly request an advisory opinion. Nevertheless, their role is relevant when lobbying the negotiation of requesting an advisory opinion. For example, in 1992, a group of non-governmental organisations launched the campaign World Court Project to seek a total prohibition of nuclear weapons by seeking a judicial determination on its illegality.44 This campaign resulted in the adoption of the UN General Assembly Resolution 49/75 K to request the advisory opinion on the Legality of the Threat or Use of Nuclear Weapons from the ICJ. Judge Oda recognised the efforts of NGOs in orchestrating the request.45 Similarly, youth organisations and states launched the campaign to seek an advisory opinion from the ICJ on climate change. It is unquestionable that future generations have a direct interest in obtaining legal certainty on the actions aimed at preventing the adverse effects of climate change. This campaign is a way to give them an active role in advisory proceedings by pushing on states and international organisations. One might wonder whether youth organisations could rely on other jurisdictions such as the AFCHPR to request a similar opinion. 7.3.3  Participation in the Proceedings

Another relevant feature of the advisory proceedings is the opportunity for states, international organisations and other entities to participate during the advisory proceedings by presenting information and arguments for the consideration of the judicial body. The plurality of actors is likewise restricted to mainly international organisations and states. Attempts by other entities to directly participate have been dismissed. For example, during the proceedings of the South West Africa advisory opinion, at least two individuals attempted to submit written submissions as amicus curiae. However, the ICJ rejected the petitions by stating that Article 66 (2) of the Statute only allows for states or international organisations to submit written

University of Pretoria, Federation of Women Lawyers, Kenya and others, No. 001/2016, 28 September 2017, African Court on Human and Peoples’ Rights, paras 44–48; Request for Advisory Opinion by L’Association Africane de Défense des Droits de L’Homme, No. 002/2016, 28 September 2017, African Court on Human and Peoples’ Rights, paras 32–35. 43 Anthony Jones, ‘Form over substance: The African Court’s restrictive approach to NGO standing in the SERAP Advisory Opinion’ (2017) 17 (1) African Human Rights Law Journal 327. 44 Manfred Mohr, ‘Advisory Opinion of the International Court of Justice on the legality of the use of nuclear weapons under international law – A few thoughts on its strengths and weaknesses’ (1997) 37 (316) International Review of the Red Cross 92. 45 However, he concluded the lack of a meaningful consensus among the members of the United Nations. Legality of the Threat or Use of Nuclear Weapons, I.C.J. Reports 1996, Dissenting Opinion of Judge Oda, paras 8 and 14.

180  Carlos A. Cruz Carrillo submissions.46 In certain circumstances, statements of individuals were included in the arguments of a participating state or organisation. For example, in Legal Consequences of the Separation of the Chagos Archipelago from Mauritius, the Republic of Mauritius included the testimony of five Chagossians who were forcibly removed by the United Kingdom: Rosemond Samynaden, Marie Liseby Elysé, Marie Janine Sadrien, Marie Mimose Furcy and Rosemonde Berthin.47 During the hearings of the case, Marie Liseby Elysé presented her testimony in a pre-recorded video. In another case, the ICJ ordered the concerned international organisation requesting the opinion to transmit to the court any statement setting forth the views of the complainant, who was an individual.48 In other jurisdictions, like ITLOS, intergovernmental entities such as the International Union for Conservation of Nature and Natural Resources, WWF and Greenpeace have been allowed to submit written submissions to be considered by the tribunal.49 In the advisory proceedings held before the IACtHR, an interested person can submit amicus curiae. In practice, this allows the submission of written statements by NGOs and members of the academia (Table 7.2). 7.3.4  Discretionary Power and Compelling Reasons

An important feature of the advisory jurisdiction among international courts and tribunals is their discretionary power to decide on whether they exercise its jurisdiction in the light of a compelling reason50 that may endanger and discredit its judicial role.51 This inherent power works as a jurisdiction-regulating mechanism52 46 We refer to the attempts by Prof Michael Reisman and Reverend Michael Scott. See: Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Correspondence, I.C.J. Reports 1970, pp. 636–639, 644 and 647. 47 Legal Consequences of the Separation of the Chagos Archipelago from Mauritius, Written Comments of the Republic of Mauritius, I.C.J. Reports 2018, para 4.114. 48 E.g. Judgment No. 2867 of the Administrative Tribunal of the International Labour Organisation upon a Complaint Filed against the International Fund for Agricultural Development, Order of 29 April 2010, I.C.J. Reports 2010, p. 298, ordinance 4. 49 Request for Advisory Opinion submitted by the Sub-Regional Fisheries Commission, Written Statement of the International Union for Conservation of Nature and Natural Resources, 25 November 2013, International Tribunal for the Law of the Sea, ITLOS Reports 2015, pp. 489–563. 50  Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, I.C.J. Reports 2019, p. 95, para 65; Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, I.C.J. Reports 2010, p. 416, para 30; Request for Advisory Opinion submitted by the Sub-Regional Fisheries Commission, Advisory Opinion of 2 April 2015, International Tribunal for the Law of the Sea, ITLOS Reports 2015, p. 4, para 71. 51 Application for Review of Judgment No. 273 of the United Nations Administrative Tribunal, Advisory Opinion, I.C.J. Reports 1982, p. 325, para 45. 52  Georges Abi-Saab, ‘On Discretion: Reflections on the Nature of the Consultative Function of the International Court of Justice’ in Laurence Boisson de Chazournes and Philippe Sands (eds), International Law, the International Court of Justice and Nuclear Weapons (Cambridge University Press 1999) 36–51.

The Role of Advisory Opinions  181 Table 7.2 Participation in advisory proceedings through written submissions or amicus curiae Judicial Body

Participation in Advisory Proceedings

International Court of Justice International Tribunal for the Law of the Sea Seabed Disputes Chamber of ITLOS Inter-American Court of Human Rights African Court on Human and Peoples’ Rights European Court of Human Rights Caribbean Court of Justice

States and international organisations.a States and intergovernmental organisations.b

ECOWAS Court of Justice

States and intergovernmental organisations.c States, intergovernmental organisations, and any person or institution seeking to act as amicus curiae.d States, intergovernmental organisations and relevant entities.e Member states,f parties to the domestic proceedings (only under Protocol 16). g Member states to the Caribbean Community and the Caribbean Community and any entity served.h Member states.i

  United Nations, Statute of the International Court of Justice, 18 April 1946, Article 66.  International Tribunal for the Law of the Sea, Rules of the Tribunal (ITLOS/8) as adopted on 28 October 1997 and amended on 15 March 2001, 21 September 2001, 17 March 2009, 25 September 2018, 25 September 2020 and 25 March 2021, Article 133(3). c  Ibid. d  Inter-American Court of Human Rights, Rules of Procedure of the Inter-American Court of Human Rights, 16-28 November 2009, Articles 53 (3), 44 (1) and 28 (1). e   African Court on Human and Peoples’ Rights, Rules of Court, 1 September 2020, Rule 83 and 84. f   European Court of Human Rights, Rules of Court, 1 June 2015, Rule 84 (2). g  European Court of Human Rights, Rules of Court, 1 June 2015, Rule 94 (2) and (3). h  Caribbean Court of Justice, Original Jurisdiction Rules 2021, 11 October 2021, Article XIII. 10 A.3. i  Economic Community of West African States, Protocol A/P.l/7/91 on the Community Court of Justice, 6 July 1991, Article 10 (3). a

b

based on the principles of judicial property. It, thereby, allows the judicial body to examine the context and purpose of a request for an advisory opinion. Yet, it is unclear what can be characterised as a compelling reason. In this aspect, the IACtHR has established: These broad discretionary powers should not, however, be confused with the mere authority to exercise discretion as regards whether or not to issue the requested opinion. […] the court must have compelling reasons based on the fact that the petition exceeds the limits of its competence in this sphere established in the Convention […] the court must set out the reasons for any decision in which it considers that it should not respond to a request for an advisory opinion.53 53  Request for an Advisory Opinion presented by the Inter-American Commission on Human Rights, Order of 29 May 2018, Inter-American Court of Human Rights, para 5; The Environment and

182  Carlos A. Cruz Carrillo The practice shows that international courts and tribunals have been requested to rely on their discretionary powers due to the alleged existence of compelling reasons, such as the lack of consent to the adjudication of a third interested state; the lack of enough factual documentation or evidence; or the political nature of the question.54 The ICJ, for instance, has never relied on these or other compelling reasons to deny a request for an advisory opinion. A similar trend permeates among other international tribunals, with some exceptions such as the IACtHR.55 From the aforementioned potential compelling reasons, perhaps the question of consent to adjudication has echoed across international courts and tribunals. The ICJ stated that the consent of an interested state is relevant not for the court’s competence, but for the appreciation of the property of giving an opinion. This may be the case if the request aims at circumventing the principle of consent to adjudication.56 On this point, Judge Donoghue considered that to determine whether a request is circumventing the lack of consent to adjudication, it is necessary to compare the subject matter of the bilateral dispute with the legal question presented by the request.57 However, as mentioned, states can appoint judges ad hoc if the request is on a pending legal issue between two or more states.58 Outside the ICJ, in very few cases the IACtHR rejected a request on the ground that advisory jurisdiction is not a channel to make a determination of contentious matters not yet referred to the court without providing the opportunity to the other party to participate in the proceedings.59 Yet, the practice among

Human Rights, Advisory Opinion OC-23/17 of 15 November 2017, Inter-American Court of Human Rights, para 20. 54 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, I.C.J. Reports 2010, para 31; Hugh Thirlway, The Law and Procedure of the International Court of Justice: Fifty Years of Jurisprudence (Oxford University Press 2013) 1724–1731; Yoshifumi Tanaka, The Peaceful Settlement of International Disputes (Cambridge University Press 2017) 168–170; Pierre d’Argent, ‘Commentary to Article 65’ in Andreas Zimmermann et al. (eds), The Statute of the International Court of Justice: A Commentary (Oxford University Press 2019) para 45. 55 The Inter-American Court of Human Rights has rejected at least five requests for an advisory opinion on these grounds. 56 Interpretation of Peace Treaties, Advisory Opinion, I.C.J. Reports 1950, pp. 65, 71; Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 25, para 32 and 33. 57 Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, I.C.J. Reports 2019, Dissenting Opinion of Judge Donoghue, para 10. 58 Western Sahara, Order of 22 May 1975, I.C.J. Reports 1975, p. 6. 59 Request for an Advisory Opinion presented by the Secretary General of the Organisation of American States, Decision of the Court, 23 June 2016, Inter-American Court of Human Rights, para 6; Request for an Advisory Opinion presented by Costa Rica, Decision of 10 May 2005, Inter-American Court of Human Rights, paras 13–14.

The Role of Advisory Opinions  183 the ICJ,60 the IACtHR61 and ITLOS62 shows that the consent of potential affected states is not relevant in an advisory proceeding, mainly because the outcome is non-binding and is a mere legal advice for the requesting entity. In this context, Kolb underscores the need to abandon the discretionary power to lead to the development of a proper law relating to the admissibility of advisory opinions.63 In sum, requesting advisory opinions can find fertile ground before several international courts and tribunals. The requesting entity should be entitled to do so, and the motive of the request should be clear and connected to the functions performed by the requesting entity. Yet the plurality of courts and tribunals entails a plurality of opportunities to request an opinion. As a contention mechanism, the discretionary powers allow the judicial body to assess the request vis-à-vis its principles of judicial property. The next task of this research is to examine the legal effects of a public interest advisory opinion. 7.4  Legal Effects of an Advisory Opinion 7.4.1  An Overview

An advisory opinion may entail authoritative statements of law that will guide the requesting entities to comply with its functions and obligations. Indeed, advisory opinions are a subsidiary source of international law inasmuch as they show what international law is.64 However, let us remember that advisory opinions are not legislative tools to design new rules of international law. As explained by Boisson de Chazournes, “in rendering these opinions, the court contributes to the clarification of the applicable law and in so doing helps to prevent disputes from arising”.65 However, as stated by Reisman, each advisory opinion “will be appraised precisely 60  See: Legal Consequences For States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 24, para 34; Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, I.C.J. Reports 2019, p. 95, para 85; Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 25, para. 33; Interpretation of Peace Treaties, Advisory Opinion, I.C.J. Reports 1950, p. 71. 61 Request for an Advisory Opinion presented by the Inter-American Commission of Human Rights, Order of the Court dismissing the Request, 29 May 2018, Inter-American Court of Human Rights, para 8. 62  Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the Area, Advisory Opinion of 1 February 2011, International Tribunal for the Law of the Sea, ITLOS Reports 2011, p. 24, para 30; Request for Advisory Opinion submitted by the Sub-Regional Fisheries Commission, Advisory Opinion of 2 April 2015, International Tribunal for the Law of the Sea, ITLOS Reports 2015, p. 4, paras 76–77. 63  Robert Kolb, The Elgar Companion on the International Court of Justice (Edward Elgar Publishing 2016) 276. 64 See: Hersch Lauterpacht, The Development of International Law by the International Court (Cambridge University Press 1982) 21–22. 65  Laurence Boisson de Chazournes, ‘Advisory Opinions and the Furtherance of the Common Interest of Mankind’ in Laurence Boisson de Chazournes et al. (eds), International Organisations and International Dispute Settlement: Trends and Prospects (Brill 2002) 107.

184  Carlos A. Cruz Carrillo in terms of its aggregate consequences on world order rather than in terms of its elegance or logical rigour”.66 The legal effects of an advisory opinion might be the stage where a public interest may obtain more benefit. Yet, the effects will depend on the motives of the requesting entity, the legal question presented to the court and the content of the advisory opinion. An international organisation can request an opinion to guide its further actions. This is clear in the practice of the ICJ where advisory opinions guided the UNGA to adopt further measures. Following the advisory opinion on the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, the UNGA adopted Resolution 73/295 that informed how to conclude the decolonisation process of the Chagos Archipelago. In Legality of Nuclear Weapons, the ICJ was presented with “a titanic tension between state practice and legal principle”67 and delivered an opinion that received critics for delivering incomplete answers.68 However, beyond the ICJ, the effect of advisory opinion seems to trigger further political and legal actions. Recently, ITLOS had the task to assess the legal nature of the 2019 ICJ advisory opinion on the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius.69 This assessment was crucial to determine whether the preliminary objections raised by Maldives could be upheld. ITLOS held that the determinations contained in an advisory opinion do have a legal effect.70 Particularly, ITLOS drew a distinction between the binding character and the authoritative nature of advisory opinions of the ICJ: An advisory opinion is not binding because even the requesting entity is not obligated to comply with it in the same way as parties to contentious proceedings are obligated to comply with a judgment. However, judicial determinations made in advisory opinions carry no less weight and authority than those in judgments because they are made with the same rigour and scrutiny by the “principal judicial organ” of the United Nations with competence in matters of international law.71 66 W. Michael Reisman, ‘The Political Consequences of the General Assembly Advisory Opinion’ in Laurence Boisson de Chazournes and Philippe Sands (eds), International Law, the International Court of Justice and Nuclear Weapons (Cambridge University Press 1999) 473. 67 Legality of the Threat or Use of Nuclear Weapons, Dissenting Opinion of Vice-President Schwebel, I.C.J. Reports 1996, p. 311. 68 W. Michael Reisman, ‘The Political Consequences of the General Assembly Advisory Opinion’ in Laurence Boisson de Chazournes and Philippe Sands (eds), International Law, the International Court of Justice and Nuclear Weapons (Cambridge University Press 1999) 487. 69 Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, I.C.J. Reports 2019, p. 95. 70  Dispute concerning Delimitation of the Maritime Boundary in the Indian Ocean (Mauritius/Maldives), Preliminary Objections, Judgment 28 January 2021, International Tribunal for the Law of the Sea, ITLOS Reports 2020–2021, p. 7, para 206. 71 Dispute concerning Delimitation of the Maritime Boundary between Mauritius and Maldives in the Indian Ocean (Mauritius/Maldives), Preliminary Objections, Judgment 28 January 2021, International Tribunal for the Law of the Sea, para 203.

The Role of Advisory Opinions  185 Furthermore, a remaining question is whether a finding in an advisory opinion concerning the specific breach of international law attributed to a state or states can entitle affected states to adopt countermeasures under international law.72 For example, in certain advisory opinions, the ICJ declared the breach of international law attributable to South Africa, Israel and the United Kingdom. In these cases, the breach entailed erga omnes obligations under which another state could have adopted countermeasures. Today, certain aspects of international law require a recalibration for it to be useful in guaranteeing the rule of law in the context of challenges like climate change, internet governance or COVID-19. Therefore, an advisory opinion is a judicial contribution on how the law applies to a particular context of public interest. As mentioned, advisory opinions will entail a direct benefit for the requesting entity, being an international organisation while performing its functions or being a state (or group of states) while complying with its international obligations.73 Thereby, entities other than those who requested an opinion could look at the legal statements enshrined in an opinion and act in consequence while performing their duties. In the particular case of states, advisory opinions have been shown to be useful in influencing the outcome of a dispute.74 For example, Mexico sought an advisory opinion from the Inter-American Court of Human Rights,75 which paved the way for the proceedings before the ICJ in the Avena and Other Mexican National case against the United States of America.76

7.4.2  Tracking Legal Effects: The Case Studies

To track the legal effects of an advisory opinion, this chapter relies on two advisory opinions addressing public interest issues: the 2011 ITLOS advisory opinion Responsibilities and obligations of States with respect to activities in the Area, and the 2017 Inter-American Court of Human Rights (IACtHR) OC-23/17 The 72  For a detailed examination of countermeasures, see: Federica Paddeu, Justification and Excuse in International Law: Concept and Theory of General Defences (Cambridge University Press 2018) 225–284. 73  See: Álvaro Sandoval Bernal, La Jurisdicción Consultiva de las Cortes Internacionales (Tirant lo Blanch 2019) 69–74; Marie Clotilde Runavot, La compétence consultative des juridictions internationales (LGDJ 2010). 74 Cesar Romano, ‘International Organisations and the International Judicial Process: An overview’ in Laurence Boisson de Chazournes et al. (eds), International Organisations and International Dispute Settlement: Trends and Prospects (Brill 2002) 18. 75  The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law, Advisory Opinion OC-16/99 of 1 October 1999, Inter-American Court of Human Rights. 76  See: Avena and Other Mexican Nationals (Mexico v. United States of America), Application Instituting Proceedings, I.C.J. Reports 2003, paras 65, 77 and 271; Avena and Other Mexican Nationals (Mexico v. United States of America), Memorial of Mexico, I.C.J. Reports 2003, paras 157–158, 194, 336.

186  Carlos A. Cruz Carrillo Environment and Human Rights advisory opinion. This selection of opinions is due to three main reasons. First, the requesting entities are international organisations and a state, respectively, which highlight the advantages and disadvantages of these two subjects of international law as requesting entities. Second, the two opinions addressed two issues of public interest, being the responsibilities and obligations when operating in the Area, considered a common heritage of humankind; and the human right to a healthy environment, currently trying to reach global validity. Third, both opinions already offer elements to trace its impact, including cross-fertilisation among domestic and international judicial bodies. Finally, this section examines the requests for two advisory opinions on climate change from the ICJ and ITLOS and their potential legal effects. 7.4.2.1 ITLOS and the Protection of the Interests of Humankind

One of the common interests whose protection and preservation entails a public interest is the deep seabed beyond national jurisdiction, so-called the Area. Under Part XI of the United Nations Convention on the Law of the Sea (UNCLOS), the Area and its resources are the common heritage of humankind.77 Furthermore, the UNCLOS stipulates that the International Seabed Authority (ISA) is the trustee of the interests of humankind in the Area. To that end, this organisation shall adopt rules, regulations and procedures aimed at managing the exploration, prospection and exploitation of the Area.78 In this context, ITLOS Seabed Dispute Chamber delivered its first advisory opinion in 2011: Responsibilities and obligations of States with respect to activities in the Area.79 The background of this advisory opinion is the starting of exploration activities in the Area. Nauru was among the first countries to sponsor exploration activities. It proposed to the Council of the ISA the request of an advisory opinion on the interpretation of Part XI of UNCLOS pertaining to responsibility and liability that may derive from sponsoring activities in the Area. According to Nauru, an advisory opinion on these aspects would allow developing states to assess whether it is within their capabilities to effectively mitigate such risks and in turn make an informed decision on whether or not to participate in activities in the Area.80 Ultimately, the Council rejected the proposal but decided to request an advisory opinion on three broad legal questions related

77  UN General Assembly, Convention on the Law of the Sea, 10 December 1982, Article 136. On the features of the common heritage of humankind principle, see: Joanna Dingwall, International Law and Corporate Actors in Deep Seabed Mining (Oxford University Press 2021) 86–95. 78 UN General Assembly, Convention on the Law of the Sea, 10 December 1982, Article 137 (2). 79 Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the Area, Advisory Opinion of 1 February 2011, International Tribunal for the Law of the Sea, ITLOS Reports 2011, p. 10. 80 International Seabed Authority, Proposal to seek an advisory opinion from the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea on matters regarding sponsoring state responsibility and liability, 5 March 2010, Doc. ISBA/16/C/6, para 5.

The Role of Advisory Opinions  187 to Nauru’s concerns.81 Considering the role of the ISA as guardian of the interests of humankind over the Area, it is possible to affirm that this opinion followed a public interest highlighted by a member state and further adjusted by the ISA. The level of participation during the advisory proceedings included member states, international organisations and non-governmental organisations. On this last point, ITLOS considered the statement made by the International Union for Conservation of Nature (IUCN) as part of the case file but excluded those statements filed by Greenpeace and World Wide Fund for Nature (WWF).82 This level of participation may be viewed as a measure to preserve democratic legitimacy in an issue of public interest.83 The advisory opinion is rich in elucidating the scope and content of the environmental obligations enshrined in Part XI of UNCLOS. For example, the opinion refers to the obligations of due diligence and its changing nature, the status of the precautionary approach, environmental impact assessment and liability, among other aspects.84 ITLOS also recognised that any state would be entitled to claim compensation in light of the erga omnes character of the environmental obligations applicable on the high seas and the Area.85 Some commenters referred to this opinion as the most comprehensive treatment of international environmental law by any international court or tribunal.86 In subsequent cases, other international judicial bodies relied on ITLOS opinion to shape their judicial reasoning, including the below-examined IACtHR advisory opinion. Inclusively, the opinion is echoing in domestic jurisdictions. For example, in Trans-Tasman Resources Limited v. The Taranaki – Whanganui Conservation Board, a case involving seabed-mining activities within national jurisdiction, the Supreme Court of New Zealand drew on this advisory opinion to interpret the scope and content of the domestic Exclusive Economic Zone and Continental Shelf Act.87

81 International Seabed Authority, Decision of the Council of the International Seabed Authority requesting an advisory opinion pursuant to Article 191 of the United Nations Convention on the Law of the Sea, Doc. ISBA/16/C/13, 6 May 2010. 82 Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the Area, Advisory Opinion of 1 February 2011, International Tribunal for the Law of the Sea, ITLOS Reports 2011, p. 10, paras 13 and 14. 83 Brian McGarry and Yusra Suedi, ‘Judicial Reasoning and Non-State Participation before Inter-State Courts and Tribunals’ (2022) 21 The Law and Practice of International Courts and Tribunals 145. 84 Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the Area, Advisory Opinion of 1 February 2011, International Tribunal for the Law of the Sea, ITLOS Reports 2011, p. 10, paras 117–120, 125–135, 141–150. 85 Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the Area, Advisory Opinion of 1 February 2011, International Tribunal for the Law of the Sea, ITLOS Reports 2011, p. 10, para 180. 86 Alan Boyle, Catherine Redgwell and Patricia Birnie, International Law and the Environment (4th edn, Oxford University Press 2021) 266. 87 Trans-Tasman Resources Limited v. The Taranaki – Whanganui Conservation Board, Judgment of 30 September 2021, Supreme Court of New Zealand, para 94.

188  Carlos A. Cruz Carrillo 7.4.2.2 The Inter-American Contribution to Environmental Law

Environmental matters are perhaps one of the topics under the most rapid development before international judicial organs. In some cases, courts show certain reservations about fully engaging in the discussion of environmental norms, which entail an obvious public interest component. Among these norms is the human right to a healthy environment. The scope and content of this obligation remained unclear for many years. However, in 2017, the IACtHR rendered its crucial Advisory Opinion OC-23/17 The Environment and Human Rights.88 Colombia was the requesting entity seeking legal certainty in the context of the potential construction of a major infrastructure project that would possibly result in severe degradation of the human and marine environment of the Wider Caribbean Region.89 Colombia considered that the opinion would reinforce global awareness by clarifying the scope of environmental protection obligations and human rights.90 It is also true that Colombia had other intentions in the context of existing friction with Nicaragua. On the one hand, Colombia and Nicaragua had a recent dispute before the ICJ concerning sovereign rights over maritime areas, and a maritime delimitation beyond 200 nautical miles, which follows the Colombia–Nicaragua saga on territorial and maritime disputes.91 On the other hand, Nicaragua was considering the construction of a transoceanic channel. In fact, the Inter-American Commission pointed to the existence of a petition procedure in relation to Nicaragua, related to alleged violations of human rights in the context of the project for the construction of the Grand Interoceanic Canal of Nicaragua.92 Nevertheless, these aspects, the IACtHR considered that its advisory opinion would be of real value for the countries of the region because it will identify, clearly and systematically, the state obligations in relation to the protection of the environment within the framework of their obligation to respect and to ensure the human rights of every person subject to their jurisdiction.93

88 The Environment and Human Rights, Advisory Opinion OC-23/17 of 15 November 2017, InterAmerican Court of Human Rights. 89 The Environment and Human Rights, Advisory Opinion OC-23/17, Request for an Advisory Opinion by Colombia, 14 March 2016, Inter-American Court of Human Rights, paras 7 and 8. 90 The Environment and Human Rights, Advisory Opinion OC-23/17, Request for an Advisory Opinion by Colombia, 14 March 2016, Inter-American Court of Human Rights, para 5. 91 Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia), Merits, Judgment, I.C.J. Reports 2022; Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 Nautical Miles from the Nicaraguan Coast (Nicaragua v. Colombia) – phase of merits pending. 92 The Environment and Human Rights, Advisory Opinion OC-23/17, Written Submissions of the IACmmHR, 19 January 2017, Inter-American Court of Human Rights, para 7. 93 The Environment and Human Rights, Advisory Opinion OC-23/17 of 15 November 2017, InterAmerican Court of Human Rights, para 23.

The Role of Advisory Opinions  189 Although Colombia, perhaps, did not intend to obtain an opinion for the public interest, the advisory opinion rendered by the IACtHR resulted in a paradigmatic decision in environmental law and human rights.94 The court indeed elaborated on the environmental obligations that states should observe to guarantee human rights within and beyond its jurisdiction. Likewise, the court clarified the scope and content of the human right to a healthy environment. The implications of these advisory opinions are visible from two perspectives: that of the requesting entity, Colombia, and that of the international community which endorsed the content of the opinion for further efforts. From the perspective of Colombia, the advisory opinion was useful in the ICJ case Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea, against Nicaragua. In a rejoinder filed by Colombia on 15 November 2018, Colombia referred to the advisory opinion to argue that its actions in the disputed maritime areas are merely a discharge of its obligation to protect the marine environment and guarantee the human rights of fishing communities, including the right to a healthy environment.95 Following this line, during the hearings of the case, Colombia quoted the findings in the advisory opinion to highlight its environmental obligations towards the marine environment and the Raizales people.96 Nevertheless, the ICJ dismissed the Colombian argument due to the incompatibility of the Colombian contiguous zone with international law and the lack of probe of artisanal fishing rights enjoyed by the Raizales people.97 Yet, what matters in the instant analysis is how an advisory opinion on a public interest topic such as the right to a healthy environment, framed the arguments of Colombia for a subsequent litigation. Concerning the effects on the international community, the first aspect to consider is its impact on the Inter-American system of human rights. In this regard, the advisory opinion has been useful for subsequent cases like the Case of the Indigenous Communities of the Lhaka Honhat (Our Land) Association v. Argentina. The case stands as one of the first cases where the court recognised the human right to a healthy environment as autonomous. In reaching that determination, the court relied on the advisory opinion, which is evident throughout the judgment.98 Moreover, the content of the opinion is already permeating the decisions of the

94 See: María Antonia Tigre and Natalia Urzola, ‘The 2017 Inter-American Court’s Advisory Opinion: Changing the Paradigm for International Environmental Law in the Anthropocene’ (2021) 12 (1) Journal of Human Rights and the Environment 24. 95 Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia), Rejoinder of the Republic of Colombia, I.C.J. Reports 2018, paras 2.101 to 2.108. 96 Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia), Verbatim Record CR 2021/14, I.C.J. Reports 2021, paras 26 and 28. 97 Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia), Merits, Judgment, I.C.J. Reports 2022. 98 Case of the Indigenous Communities of the Lhaka Honhat (Our Land) Association v. Argentina, Judgment on Merits, Reparations and Costs, 6 February 2020, Inter-American Court of Human Rights, paras 203–209.

190  Carlos A. Cruz Carrillo Inter-American Commission of Human Rights.99 For example, in March 2022, the Inter-American Commission of Human Rights adopted the Resolution No. 3/21 Climate Emergency: Scope of Inter-American Human Rights Obligations, where it drew upon the findings of the opinion regarding the scope and content of the right to a healthy environment.100 Beyond the inter-American sphere, the advisory opinion is echoing at the international level. An example is the decision of the United Nations Committee on the Rights of the Child in Sacchi and others v. Argentina and others. To establish the scope of the jurisdiction in cases of transboundary harm and human rights, the Committee relied extensively on the findings of the IACtHR in the advisory opinion under analysis. The Committee even recognised that the opinion “clarified the scope of extraterritorial jurisdiction in relation to environmental protection” and afterwards drew upon the standard adopted by the court to reach its determinations.101 Hence, the OC-23/17 The Environment and Human Rights is a public interest advisory opinion not because the requesting entity represented the inter-American community, but rather because the legal question related to a common concern such as the protection of the right to a healthy environment and related rights. This reflects the range of impacts that a public interest advisory opinion on a public interest issue can have. From being a regional judicial decision, it mainly influenced one of the very first international climate cases. Moreover, as mentioned before, this particular advisory opinion mainly departed from the previous international and regional judicial decisions dealing with environmental issues and came up with progressive determinations that proved to be useful in subsequent environmental efforts. 7.4.2.3 Advisory Opinion(s) on Climate Change

It is undeniable that the ongoing climate emergency is a public interest issue that deserves the deployment of all the available and immediate means to tackle it. The advisory jurisdiction of judicial bodies is one of them if we consider the legal effects considered in the previous section. Vanuatu and other states102 successfully campaigned at the General Assembly of the United Nations to request an advi-

99 For example, but not limited to: Inhabitants of the areas near the Santiago River, Mexico, Precautionary Measures, Decision 7/2020, 5 February 2020, Inter-American Commission of Human Rights, paras 37 and 38. 100 Inter-American Commission of Human Rights, Climate Emergency: Scope of Inter-American Human Rights Obligations, Resolution No. 3/21, 4 March 2022, para 8. 101 Sacchi and others v. Argentina and others, Communication No. 104/2019, Decision of 22 September 2021, UN Doc. CRC/C/88/D/104/2019, Committee on the Rights of the Child, paras 10.5 and 10.7. 102 As of 30 November 2022, Antigua and Barbuda, Costa Rica, Sierra Leone, Angola, Germany, Mozambique, Liechtenstein, Samoa, Federated States of Micronesia, Bangladesh, Morocco, Singapore, Uganda, New Zealand, Vietnam, Romania and Portugal.

The Role of Advisory Opinions  191 sory opinion from the ICJ on climate change and international law. The resolution envisages two legal questions.103 The first calls for clarification on the obligations to protect the “climate system and other parts of the environment” for present and future generations. The second calls for examining the legal consequences for those states that caused significant harm to the climate system and other components of the environment with respect to injured states (injured and/or vulnerable states) and peoples and individuals. The resolution also suggests the applicable law that the Court should look at to deliver its opinion, including conventional law (UN Charter, ICCPR, UNCLOS, UNFCCC) or customary law (due diligence, prevention principle).104 Due to the cross-cutting nature of climate change, stakeholders should tackle this issue by following a systemic approach to international law instead of working within “branches”. In this regard, the proposed legal questions reflect an interest in clarifying how the rules of international law, integrated into environmental law, the law of the sea and human rights, should operate to tackle the consequences of climate change. For example, whether the obligations established in the UNFCCC and the Paris Agreement can inform the interpretation of Part XII of UNCLOS to prevent ocean acidification. Or whether the right to a healthy environment could increase accountability and public participation in climate-related processes. An advisory opinion on the topic, far from being the ultimate solution, will inform the decision-making processes at the United Nations, human rights agencies, specialised agencies, treaty bodies and even other international courts and tribunals. Evidently, an opinion from the ICJ will reflect public interest and legitimacy due to the wide support and concern that the international community demonstrated during the adoption of a resolution and the advisory proceedings.105 Let us remember that only the General Assembly, the Security Council and specialised agencies can request an opinion from the ICJ.106 Therefore, requesting an opinion from the ICJ requires an intense campaign to persuade other states to support the resolution at the General Assembly. Although states cannot directly request an opinion from the court, the discussion of a legal question and the scope of the resolution is direct participation in the preparatory process. Afterwards, each state will have the opportunity to share its arguments during the advisory proceedings. Ancillary, non-state actors like intergovernmental organisations and non-governmental organisations can actively assist in the process of drafting the legal question, the adoption of the resolution and – more limited – during the advisory proceedings.

103 Vanuatu ICJ Initiative, ‘ICJ Resolution’ (15 September 2022) available at accessed 30 November 2022. 104 Vanuatu ICJ Initiative, ‘ICJ Resolution’ (15 September 2022) available at accessed 30 November 2022. 105 UNGA, Request for an advisory opinion of the International Court of Justice on the obligations of States in respect of climate change, A/77/L.58, adopted on 29 March 2023 without a vote (A/77/ PV.64) under item 70, available at accessed 13 June 2023. 106 United Nations, Statute of the International Court of Justice, 18 April 1946, Article 65.

192  Carlos A. Cruz Carrillo As mentioned, COSIS requested an advisory opinion from ITLOS on climate change and the ocean.107 The legal questions of the request focus on the obligations to protect and preserve the marine environment in light of impacts caused by climate change such as ocean warming, acidification and sea-level rise.108 If we compare the legal questions considered for the ICJ advisory opinion with those presented to ITLOS, we can observe a similar intention for clarifying international environmental obligations. Yet, let us remember that the scope of ITLOS narrows to legal questions related to the interpretation and application of UNCLOS and related agreements, such as the COSIS Agreement. That is, ITLOS is limited to examining the legal obligations towards the protection of the marine environment and not to the complete “climate system”. Nevertheless, ITLOS could follow a systemic approach to interpret a law of the sea obligation in light of other international law rules, such as the UNFCCC and the Paris Agreement. Despite the request being formulated by six member states, the utility of an advisory opinion to address the current impacts of climate change continues to be relevant for the entire international community.109 In this regard, the participation of member states and other entities during the upcoming written and oral stages is relevant to guide the judicial reasoning of ITLOS.110 For example, an opinion from ITLOS could guide the ongoing works of the International Law Commission on sea-level rise and international law. It can also contribute to the efforts of the UNFCCC to adopt more ocean-based solutions within the climate negotiations. Furthermore, the statements of law of such opinion may inspire and coexist with those that the ICJ could adopt in its climate advisory proceedings. Ultimately, it is the first time that multiple international judicial bodies will deal with advisory proceedings tackling the same issue from a different but related scope. 7.5 Conclusion This chapter demonstrated that public interest advisory opinions are a venue to obtain legal guidance to guarantee an efficient application and implementation of international law in the light of social, scientific or technological changes. As Judge Lijnzaad states in the context of the Biodiversity Beyond National Jurisdiction (BBNJ) Agreement: “an Advisory Opinion would be a useful instrument to

107 Request for an Advisory Opinion submitted by COSIS, ITLOS, Request for an Advisory Opinion of 12 December 2022; Request for Advisory Opinion submitted by the Commission of Small Island States on Climate Change and International Law, Order of 16 December 2022, ITLOS Reports 2022–2023, to be published. 108 Request for an Advisory Opinion submitted by COSIS, ITLOS, Request for an Advisory Opinion of 12 December 2022. 109 See: Rozemarijn Roland Holst, ‘Taking the current when it serves: Prospects and challenges for an ITLOS advisory opinion on oceans and climate change’ (2022) Review of European, Comparative and International Law 1–9. 110 Request for Advisory Opinion submitted by the Commission of Small Island States on Climate Change and International Law, Order of 16 December 2022, ITLOS Reports 2022–2023.

The Role of Advisory Opinions  193 strengthen the protection of marine biodiversity beyond national jurisdiction as a common good, as technological and scientific insights develop”.111 In this regard, the nature of the advisory function is rendering a judicial service for a public interest issue by clarifying a point of law to elucidate the scope and content of determined rights and obligations. Considering the proliferation of judicial bodies with an advisory function, this chapter explored the question of standing in advisory proceedings. From being placed at the exclusive disposal of international organisations as the trustees of a common interest, nowadays some judicial systems allow states and non-states actors to directly request an advisory opinion. For instance, whereas the ICJ only permits a request filed by an international organisation, the ACHPR remains the sole judicial organ that enables NGOs to request an opinion. This change is in consonance with the direction of international law towards a more inclusive approach in its legal processes. Yet, a stakeholder requesting an advisory opinion must demonstrate that the legal question presented before the court pursues a legitimate aim and is related to the performance of its functions, rights and obligations. In assessing this aspect, judicial bodies can rely on their discretionary powers to protect their judicial integrity. Nonetheless, the practice shows that on most occasions, judicial bodies agree to deliver an advisory opinion, even when a legal dispute between states could exist. Regarding the level of participation, this chapter explored the degree of participation during the advisory proceedings. Closely related to the question of standing in advisory proceedings, the level of participation during the proceedings follows a similar path. In most jurisdictions, only states and intergovernmental organisations can actively participate in the written and oral proceedings. However, in certain cases, the judicial organ allowed the participation of individuals as part of the statements formulated by a participating state, for example, the statement of Mme Liseby Elysé during the written and oral proceedings presented by Mauritius before the ICJ. The legal effects of an advisory opinion entail an authoritative interpretation of rules of international law that could assist other processes. For instance, statements of law can inform the discussions in multilateral forums such as the UNFCCC or the ILC. At the regional level, the statements of law can guide member states on the scope and content of their rights and obligations. In this context, non-state actors can rely on these statements of law to trigger domestic or international accountability mechanisms to seek the state’s compliance with its international commitments. Furthermore, a statement of law can be endorsed by other judicial bodies through judicial cross-fertilisation, it can also be the basis for a subsequent contentious dispute or, arguably, for adopting countermeasures under international law. Some of these aspects were tracked by looking at case studies 111 Liesbeth Lijnzaad, ‘Dispute Settlement for Marine Biodiversity beyond National Jurisdiction: Not an Afterthought’ in Hélène Ruiz Fabri, Erik Franckx, Marco Benatar and Tamar Meshel (eds), A Bridge over Troubled Waters: Dispute Resolution in the Law of International Watercourses and the Law of the Sea (Brill 2020) 177.

194  Carlos A. Cruz Carrillo of the IACtHR, ITLOS and two requests for advisory opinions on climate change before the ICJ and ITLOS. In the first case, the requesting entity was a state, which afterwards relied on the advisory opinion to advance arguments in further litigation. However, the opinion also informed the link between human rights and the environment for the benefit of stakeholders beyond the Inter-American system of human rights. In the second case, the ISA, as trustee of the Area, used the advisory opinion for the development of environmental regulations applicable to the exploration, prospection and – in the future – exploitation of the Area. In both cases, the requested topic entailed a public interest. Both advisory opinions proved to be useful for entities other than those who requested the opinion, such as international organisations, other states and non-state actors. In a similar fashion, the requests for climate advisory opinions before the ICJ and ITLOS respectively underscores the level of participation that a public interest issue could encompass. From states to individuals, climate change is posing many challenges to our understanding of certain rules of international law, from fundamental concepts such as statehood to complex issues like ocean acidification. Multilateral processes are ongoing to tackle these and other issues. An advisory opinion on the topic could complement these processes for the benefit of the international community. Bibliography Table of International Instruments African Court on Human and Peoples’ Rights, Rules of Court, 1 September 2020, Rule 83 and 84. Caribbean Community Secretariat, Agreement Establishing the Caribbean Court of Justice, 14 February 2001. Caribbean Court of Justice, Original Jurisdiction Rules 2021, 11 October 2021, Article XIII. 10 A.3. Council of Europe, Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine, 4 March 1997. Council of Europe, Protocol No. 16 to the Convention on the Protection of Human Rights and Fundamental Freedoms, 2 October 2013. Draft Articles on the Responsibility of States for Internationally Wrongful Acts, with commentaries, Yearbook of the International Law Commission, 2001, vol. II, Part Two. Economic Community of West African States, Protocol A/P.l/7/91 on the Community Court of Justice, 6 July 1991. European Court of Human Rights, Rules of Court, 1 June 2015. Inter-American Court of Human Rights, Rules of Procedure of the Inter-American Court of Human Rights, 16-28 November 2009. International Atomic Energy Agency, Convention on the Privileges and Immunities of the International Atomic Energy Agency, 17 August 1959, p. 147. International Seabed Authority, Decision of the Council of the International Seabed Authority requesting an advisory opinion pursuant to Article 191 of the United Nations Convention on the Law of the Sea, Doc. ISBA/16/C/13, 6 May 2010.

The Role of Advisory Opinions  195 International Seabed Authority, Proposal to seek an advisory opinion from the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea on matters regarding sponsoring state responsibility and liability, Doc. ISBA/16/C., 5 March 2010. International Tribunal of the Law of the Sea, Rules of the International Tribunal for the Law of the Sea, 28 October 1997. League of Nations, Statute of the Permanent Court of International Justice, 16 December 1920. Organisation of African Unity (OAU), Protocol to the African Charter on Human and People's Rights on the Establishment of an African Court on Human and People's Rights, 10 June 1998. Organisation of African Unity (OAU), Protocol to the African Charter on Human and People's Rights on the Establishment of an African Court on Human and People's Rights, 10 June 1998. Organisation of American States (OAS), American Convention on Human Rights, "Pact of San Jose", 22 November 1969. UN General Assembly, United Nations Convention on the Law of the Sea, 10 December 1982. UN General Assembly, Convention on the Privileges and Immunities of the United Nations, 13 February 1946. UN General Assembly, Convention on the Privileges and Immunities of the Specialised Agencies, 21 November 1947, p. 261. United Nations, Charter of the United Nations, 24 October 1945. United Nations, Statute of the International Court of Justice, 18 April 1946.

Cases International Court of Justice Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, I.C.J. Reports 2010, p. 403. Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia), Merits, Judgment, I.C.J. Reports 2022. Application for Review of Judgment No. 158 of the United Nations Administrative Tribunal, Advisory Opinion, I.C.J. Reports 1973, p. 166. Application for Review of Judgment No. 273 of the United Nations Administrative Tribunal, Advisory Opinion, I.C.J. Reports 1982, p. 325. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Provisional Measures, Order of 23 January 2020, I.C.J. Reports 2020, p.3. Avena and Other Mexican Nationals (Mexico v. United States of America), Application Instituting Proceedings, I.C.J. Reports 2003. Avena and Other Mexican Nationals (Mexico v. United States of America), Memorial of Mexico, I.C.J. Reports 2003. Barcelona Traction, Light and Power Company, Limited, Judgment, I.C.J. Reports 1970, p. 3. Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, I.C.J. Reports 1999, p.62. Interpretation of Peace Treaties, Advisory Opinion, I.C.J. Reports 1950, p. 65.

196  Carlos A. Cruz Carrillo Judgment No. 2867 of the Administrative Tribunal of the International Labour Organisation upon a Complaint Filed against the International Fund for Agricultural Development, Advisory Opinion, I.C.J. Reports 2012, p.10. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Correspondence, I.C.J. Reports 1970, p. 636. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226. Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, I.C.J. Reports 1996, p.66. Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 Nautical Miles from the Nicaraguan Coast (Nicaragua v. Colombia), (under deliberation) unreported. Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports 2012, p.422. Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 25. Western Sahara, Order of 22 May 1975, I.C.J. Reports 1975, p.6. Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), Judgment, I.C.J. Reports 2014, p.226.

Permanent Court of International Justice Jurisdiction of European Commission of Danube Between Galatz and Braila (1927) PCIJ Series B14. Question of Jaworzina (Polish-Czechoslovakian Frontier)(1923) PCIJ Series B08. Question of the Monastery of Saint-Naoum (Albanian Frontier) (1924) PCIJ Series B09. S.S. Wimbledon, Britain et al. v. Germany (1923) PCIJ Series A01. The Greco-Bulgarian Communities (1930) PCIJ Series B17.

International Tribunal for the Law of the Sea Dispute concerning Delimitation of the Maritime Boundary between Mauritius and Maldives in the Indian Ocean, Preliminary Objections, Judgment of 28 January 2021, International Tribunal for the Law of the Sea, ITLOS Reports 2020-2021, p.17. Request for Advisory Opinion submitted by the Commission of Small Island States on Climate Change and International Law, Order of 16 December 2022, ITLOS Reports 2022-2023, to be published. Request for Advisory Opinion submitted by the Sub-Regional Fisheries Commission, Advisory Opinion of 2 April 2015, International Tribunal for the Law of the Sea, ITLOS Reports 2015, p. 4. Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the Area, Advisory Opinion of 1 February 2011, International Tribunal for the Law of the Sea, ITLOS Reports 2011, p.10.

Inter-American Court of Human Rights Case of the Indigenous Communities of the Lhaka Honhat (Our Land) Association v. Argentina, Judgment on Merits, Reparations and Costs, 6 February 2020, Inter-American Court of Human Rights.

The Role of Advisory Opinions  197 Request for an Advisory Opinion presented by Costa Rica, Decision of 10 May 2005, InterAmerican Court of Human Rights. Request for an Advisory Opinion presented by the Inter-American Commission on Human Rights, Order of 29 May 2018, Inter-American Court of Human Rights. Request for an Advisory Opinion presented by the Inter-American Commission of Human Rights, Order of the Court dismissing the Request, 29 May 2018, Inter-American Court of Human Rights. Request for an Advisory Opinion presented by the Secretary General of the Organisation of American States, Decision of the Court, 23 June 2016, Inter-American Court of Human Rights. The Environment and Human Rights – Request for an Advisory Opinion by Colombia, Advisory Opinion OC-23/17 of 15 November 2017, Inter-American Court of Human Rights. The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law, Advisory Opinion OC-16/99 of 1 October 1999, Inter-American Court of Human Rights.

African Court of Human Rights Request for Advisory Opinion by Socio-Economic Rights and Accountability Project (SERAP), Advisory Opinion No. 001/2013 of 26 May 2017, African Court on Human and Peoples’ Rights. Request for Advisory Opinion by the Centre for Human Rights of the University of Pretoria and the Coalition of African Lesbian, No. 002/2015, 28 September 2017, African Court on Human and Peoples’ Rights. Request for Advisory Opinion by the Centre for Human Rights, University of Pretoria, Federation of Women Lawyers, Kenya and others, No. 001/2016, 28 September 2017, African Court on Human and Peoples’ Rights. Request for Advisory Opinion by L’Association Africane de Défense des Droits de L’Homme, No.002/2016, 28 September 2017, African Court on Human and Peoples’ Rights. The Right to Participate in the Government of One’s Country in the context of an election held during a public health emergency or a pandemic, such as the COVID-19 crisis Requested by the Pan African Lawyers Union, Advisory Opinion No. 001/2020, 16 July 2021, African Court on Human and Peoples’ Rights.

Other Courts Advisory Opinion No AOOJ 2019/001, Caribbean Court of Justice, 18 March 2020. Trans-Tasman Resources Limited v. The Taranaki – Whanganui Conservation Board, Judgment of 30 September 2021, Supreme Court of New Zealand.

Quasi-Judicial Bodies Inhabitants of the areas near the Santiago River, Mexico, Precautionary Measures, Decision 7/2020, 5 February 2020, Inter-American Commission of Human Rights. Sacchi and others v. Argentina and others, Communication No. 104/2019, Decision of 22 September 2021, UN Doc. CRC/C/88/D/104/2019, Committee on the Rights of the Child.

198  Carlos A. Cruz Carrillo Books and Articles Abi-Saab G, ‘On Discretion: Reflections on the Nature of the Consultative Function of the International Court of Justice’ in L Boisson de Chazournes and P Sands (eds), International Law, the International Court of Justice and Nuclear Weapons (CUP 1999). Ago R, ‘“Binding” Advisory Opinions of the International Court of Justice’ (1991) 85 (3) American Journal of International Law 439. Aust A, ‘Advisory Opinions’ (2010) 1 (1) Journal of International Dispute Settlement 123. Boisson de Chazournes L, ‘Advisory Opinions and the Furtherance of the Common Interest of Mankind’ in L Boisson de Chazournes, C Romano and R McKenzie (eds), International Organisations and International Dispute Settlement: Trends and Prospects (Brill 2002). Boisson de Chazournes L, ‘Plurality in the Fabric of International Courts and Tribunals: The Threads of a Managerial Approach’ (2017) 28 (1) European Journal of International Law 13. Boyle A, Redgwell C and Birnie P, International Law and the Environment (4th ed., OUP 2021). Brunnée J, ‘International Environmental Law and Community Interests’ in E. Benvenisti and G Nolte (eds), Community Interests Across International Law (OUP 2018). Rao Chandrasekhara and Gautier P (ed), The International Tribunal for the Law of the Sea: Law, Practice and Procedure (Edward Elgar Publishing 2018). Clotilde Runavot M, La compétence consultative des juridictions internationales (LGDJ 2010). Crawford J, Multilateral Rights and Obligations in International Law (Brill/Nijhoff 2006). Crawford J, State Responsibility: The General Part (CUP 2013). D’Argent P, ‘Commentary to Article 65’ in A Zimmermann et al. (eds), The Statute of the International Court of Justice: A Commentary (OUP 2019). Dicosola M et al., ‘The Prospective Role of Constitutional Courts in the Advisory Opinion Mechanism before the European Court of Human Rights: A First Comparative Assessment with the European Union and the Inter-American System’ (2015) 16 (6) German Law Journal 1387. Dominicè C, ‘Request of Advisory Opinions in Contentious Cases?’ in L Boisson de Chazournes, C Romano and R McKenzie (eds), International Organizations and International Dispute Settlement: Trends and Prospects (Transnational Publishers 2002). Freestone D, Barnes R and Akhavan P, ‘Agreement for the Establishment of the Commission of Small Island States on Climate Change and International Law’ (2022) 37 (1) International Journal of Marine and Coastal Law 166. Giles Samson M and Guilfoyle D, ‘The Permanent Court of International Justice and the Invention of International Advisory Jurisdiction’ in M Fitzmaurice and C Tams (eds.), Legacies of the Permanent Court of International Justice (Brill/Nijhoff 2013). Jiménez de Aréchaga E, ‘Judges Ad-Hoc in Advisory Proceedings’ (1971) 31 Heidelberg Journal of International Law 697. Jones A, ‘Form Over Substance: The African Court’s Restrictive Approach to NGO Standing in the SERAP Advisory Opinion’ (2017) 17 (1) African Human Rights Law Journal 321. Kolb R, The International Court of Justice (Hart Publishing 2013). Kolb R, The Elgar Companion on the International Court of Justice (Edward Elgar Publishing 2016). Lapradelle A and Negulesco D, ‘Rapport sur la nature Juridique des Avis Consultatifs de la Cour Permanente de Justice Internationale – Leur valeur et leur portée positive en droit International’ (1928) 34 Annuaire Institut de Droit International 453.

The Role of Advisory Opinions  199 Lauterpacht H, The Development of International Law by the International Court (CUP 1982). Lijnzaad L, ‘Dispute Settlement for Marine Biodiversity beyond National Jurisdiction: Not and Afterthought’ in H Ruiz Fabri, E Franckx, M Benatar and T Meshel (eds), A Bridge Over Troubled Waters: Dispute Resolution in the Law of International Watercourses and the Law of the Sea (Brill 2020). McGarry B and Suedi Y, ‘Judicial Reasoning and Non-State Participation before InterState Courts and Tribunals’ (2022) 21 The Law and Practice of International Courts and Tribunals 145. Mohr M, ‘Advisory Opinion of the International Court of Justice on the Legality of the Use of Nuclear Weapons Under International Law – A Few Thoughts on Its Strengths and Weaknesses’ (1997) 37 (316) International Review of the Red Cross 92.

Part IV

Public Interest Litigation and Non-State Actors



8

Third-Party Investigation in International Criminal Law Public Interest Litigation in a Broader Sense? Kristina Hellwig

8.1 Introduction In the past, many have recognised the need to prosecute core crimes on a national and international level.1 Alongside national institutions, international criminal courts and tribunals (ICTs) have been entrusted with this crucial but demanding task. However, investigating and prosecuting grave crimes is often marked by investigative challenges, such as safety concerns for the personnel and potential witnesses, limited cooperation of the states or groups in control of the territory in question and a general lack of diverse types of evidence. All these aspects, as well as the lack of an already existing investigative body with jurisdiction over those crimes, can lead to a delayed collection of evidence, again limiting the availability of information on the crimes and perpetrators. This, of course, can increase the difficulty for the later prosecution and reconstruction of crimes.2 Different stakeholders, such as civil society and non-governmental organisations (NGOs),3 have begun to actively try to close these existing evidentiary gaps by establishing independent databases and investigations.4 They have taken advantage of current technological developments within their documentation efforts, allowing for the increased collection of digital evidence,5 such as satellite

1 For an overview see, e.g., Claus Kreß, ‘International Criminal Law’ (2009) Max Planck Encyclopedias of Public International Law, paras 22 et seq.; Antonio Cassese, International Criminal Law (Oxford University Press 2003) 329 et seq. 2  For more details on this topic, see section 8.2. 3  In this context, the term ‘NGO’ refers to organisations not established by intergovernmental agreements that are (in general) free from (direct) governmental influence; that generally do not aim for profit and do not promote violence, excluding liberation movements, corporations, rebel organisations, etc. For a similar approach, see Charles C. Jalloh, ‘The Role of Non-Governmental Organisations in Advancing International Criminal Justice’ (2015) 1 (1) African Journal of International Criminal Justice 47, 47 et seq. 4 See section 8.2. 5 A common understanding is that ‘electronic evidence’ is any data resulting from the output of an analogue device and/or a digital device of potential probative value that are generated, processed, stored or transmitted using any electronic device, and ‘digital evidence’ is electronic evidence that is DOI:  10.4324/9781003433460-12

204  Kristina Hellwig imagery or user-generated content including audio-visual data and the expansion of open-source investigation.6 Various activities, such as collecting, securing, analysing, cataloguing and publishing large amounts of data on core crimes, are carried out by NGOs, particularly for the purpose of enabling future criminal proceedings.7 Precisely these activities have the potential to prompt and evolve the enforcement of international criminal law (ICL) and close existing evidentiary gaps. Additionally, it can be observed that this field of third-party investigation8 is being increasingly professionalised.9 In light of these developments, this chapter will attempt to address the question of how these third parties can participate in international criminal procedure (ICP) and whether the growing prevalence of third-party investigation can in any way be classified as public interest litigation.10 For this purpose, section 8.2 will provide a short overview of the changing character and increasing role of third-party investigation regarding grave crimes. Section 8.3 will then address the theoretical applicability and definition of the public interest litigation concept in the ICL context. Section 8.4 will take a more practice-oriented perspective and dive into the question of desirability and potential outcomes of third-party involvement in ICP and how the current involvement of these parties can be classified in regard to the concept of public interest litigation. This inquiry will primarily focus on the International Criminal Court (ICC) and will have only limited opportunity to address the procedural perspective of other ICTs. Nevertheless, many conclusions are of general nature and can, at least to some degree, be transferred to other ICTs.

generated or converted to a numerical format; see, e.g., European Commission, European Evidence Project, ‘European Data Informatics Exchange Framework for Courts and Evidence’ (CORDIS EU research results, 10 April 2017) accessed 8 June 2023; Maria Angela Biasiotti et al., ‘Introduction: Opportunities and Challenges for Electronic Evidence’ in Maria Angela Biasiotti et al. (eds), Handling and Exchanging Electronic Evidence Across Europe (Springer 2018) 4.  6  In this context, the term ‘open-source investigation’ refers to the use of open-source information for information- and evidence-gathering functions. Open-source information encompasses publicly available information that any member of the public can observe, purchase or request without requiring special legal status or unauthorised access; see Human Rights Center, UC Berkeley School of Law and UN Office of the High Commissioner for Human Rights, Berkeley Protocol on Open Source Investigations, 1 December 2020, paras 14, 20.  7  See section 8.2.   8 In this context, ‘third-party investigation’ refers to investigations by parties who are not directly involved in the proceedings and have no obligation to investigate, e.g., civil society and NGO investigative activities.   9 See section 8.2 and 8.4. 10 See section 8.3.

Third-Party Investigation in ICL  205 8.2 The Increasing Role of Third-Party Investigations in the Prosecution of Grave Crimes The primary objective of ICP is first and foremost to determine the guilt or innocence of the accused.11 An essential step for this purpose is to establish the facts of the case by evidence,12 i.e., information that proves or disproves the existence of alleged facts.13 Hence, after opening an investigation into a specific case, the Prosecutor holds the burden of proof14 and must prove all elements of the crime,15 i.e., the circumstances that give rise to criminal responsibility, including both material and mental elements,16 and a conviction requires proof of guilt beyond a reasonable doubt.17 While these are fundamental aspects which, in their essential features (bearing in mind the national diversity of criminal procedures and criminal legal traditions) are applicable in all criminal proceedings, still, the fact-finding process in ICP can be rather difficult. Even though the burden of proof lies with the prosecution, the ICC and its bodies hold only limited authoritative power in relation to (coercive) investigative means,18 such as search and seizure operations or interceptions of communications, as the investigative process is largely grounded on state cooperation19 or volun-

11 E.g., Jonathan Hafetz, Punishing Atrocities through a Fair Trial: International Criminal Law from Nuremberg to the Age of Global Terrorism (Cambridge University Press 2018) 109. 12 Peter Murphy (ed), Evidence, Proof, and Facts: A Book of Sources (Oxford University Press 2003) 1–2; Rüdiger Wolfrum and Mirka Möldner, ‘International Courts and Tribunals, Evidence’ (2013) Max Planck Encyclopedias of Public International Law para 2. 13 Bryan A. Garner, Black’s Law Dictionary (9th edn, Thomson Reuters 2009) 635; Richard Glover, Murphy on Evidence (15th edn, Oxford University Press 2017) 1–2. 14 See Council of Europe, Convention for the Protection of Human Rights and Fundamental Freedoms, as amended, 4 November 1950, Art 6(2); United Nations General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, Art 14(2); United Nations General Assembly, Rome Statute of the International Criminal Court, 17 July 1998, Art 66; see in general, e.g., Salvatore Zappalà, Human Rights in International Criminal Proceedings (Oxford University Press 2005) 85 et seq., 94 et seq. 15 See, e.g., Helmut Satzger, International and European Criminal :aw (2nd edn, C.H. Beck, Hart, Nomos 2018) 268. 16 See, e.g., ibid., 268 et seq.; Gerhard Werle and Florian Jeßberger, Principles of International Criminal Law (3rd edn, Oxford University Press 2014) 170 et seq. 17 See United Nations General Assembly, Rome Statute of the International Criminal Court, 17 July 1998, Art 66(3). 18 See, e.g., Karel de Meester, ‘The Investigation Phase in International Criminal Procedure: In Search of Common Rules’ (PhD Thesis, Amsterdam Centre for International Law 2014) 516 et seq.; Krit Zeegers, International Criminal Tribunals and Human Rights Law: Adherence and Contextualization (TMC Asser Press 2016) 147 et seq. 19 United Nations General Assembly, Rome Statute of the International Criminal Court, 17 July 1998, Arts 86, 93; see, e.g., Robert Cryer et al., An Introduction to International Criminal Law and Procedure (3rd edn, Cambridge University Press 2014) 517 et seq.; Mark B. Harmon and Fergal Gaynor, ‘Prosecuting Massive Crimes with Primitive Tools: Three Difficulties Encountered by Prosecutors in International Criminal Proceedings’ (2004) 2 (2) Journal of International Criminal Justice 403, 406, 413.

206  Kristina Hellwig tary cooperation by individuals and institutions. Therefore, member states hold the responsibility to conduct coercive investigatory measures.20 On-site visits by the prosecution’s personnel are, in general, also dependent on the cooperation of the state.21 Unfortunately, practice shows that the ICC, in particular, struggles with a lack of state cooperation.22 In case of non-compliance by states, the remedies are often insufficient.23 In such a situation, if the prosecution wants to fulfil the duties assigned to them, it must find alternative means of investigation. Additional evidentiary challenges are grounded in temporal delays of investigations.24 These delays may have their reasons in safety concerns,25 a lack of access to the territory in question or the fact that no investigatory body has jurisdiction over the situations in question. However, as many types of evidence fade over time, their collection is highly time-sensitive.26 Even worse is that even the types of evidence that would generally be available after longer periods of time are at considerable risk of destruction, either deliberately or due to the ongoing conflict.27 These aspects, of course, can increase the difficulty for the later prosecution and reconstruction of crimes. In an attempt to circumvent these serious investigative obstacles, different thirdparty stakeholders actively try to close evidentiary gaps. While NGOs and civil society have consistently played a significant role in the context of ICL, as these

20 United Nations General Assembly, Rome Statute of the International Criminal Court, 17 July 1998, Art 93(1). 21 The Prosecution can only conduct independent on-site investigations in the context of United Nations General Assembly, Rome Statute of the International Criminal Court, 17 July 1998, Art 54, 57(3)(d), i.e., when a state is unable to execute a request for cooperation due to the unavailability of any authority or any component of its judicial system and Art 99(4). 22 Robert Cryer et al., An Introduction to International Criminal Law and Procedure (3rd edn, Cambridge University Press 2014) 537; Mark B. Harmon and Fergal Gaynor, ‘Prosecuting Massive Crimes with Primitive Tools: Three Difficulties Encountered by Prosecutors in International Criminal Proceedings’ (2004) 2 (2) Journal of International Criminal Justice 403, 414 et seq. 23 See, e.g., Richard May and Marieke Wierda, International Criminal Evidence (Transnational Publishers 2002) 67; Robert Cryer et al., An Introduction to International Criminal Law and Procedure (3rd edn, Cambridge University Press 2014) 535. 24 Rebecca Hamilton, ‘User-Generated Evidence’ (2018) 57 (1) Columbia Journal of Transnational Law 14; International Bar Association, Evidence Matters in ICC Trials, August 2016, accessed 8 June 2023, p. 12; Alex Whiting, ‘New Institutions to Support First Responders’ in R.H. Steinberg (ed), The International Criminal Court: Contemporary Challenges and Reform Proposals (Brill Nijhoff 2020) 5–6. 25 See, e.g., Rebecca Hamilton, ‘User-Generated Evidence’ (2018) 57 (1) Columbia Journal of Transnational Law 12–13; Mark B. Harmon and Fergal Gaynor, ‘Prosecuting Massive Crimes with Primitive Tools: Three Difficulties Encountered by Prosecutors in International Criminal Proceedings’ (2004) 2 (2) Journal of International Criminal Justice 403, 406–407. 26 See, e.g., David Cohen, ‘The Passage of Time, the Vagaries of Memory, and Reaching Judgment in Mass Atrocity Cases’ in Morten Bergsmo and Cheah Wui Ling (eds), Old Evidence and Core International Crimes (Torkel Opsahl Academic EPublisher 2012). 27 See, e.g., Mark B. Harmon and Fergal Gaynor, ‘Prosecuting Massive Crimes with Primitive Tools: Three Difficulties Encountered by Prosecutors in International Criminal Proceedings’ (2004) 2 (2) Journal of International Criminal Justice 403, 407; Rebecca Hamilton, ‘User-Generated Evidence’ (2018) 57 (1) Columbia Journal of Transnational Law 14.

Third-Party Investigation in ICL  207 actors have had a strong involvement in advocating for the creation of ICTs and in the treaty-making process of the Rome Statute28 and have participated in the factfinding process regarding human rights violations as well as advocating for human rights protection,29 current developments go even a step further. Especially in situations where effective or willing investigative bodies by states are lacking, NGOs and civil society are showing increasing activity, professionalism and outreach. Various activities, such as collecting, securing, analysing, cataloguing and publishing data are carried out by NGOs.30 To name a few examples, the project WITNESS coordinates and organises on-ground training regarding evidence collection,31 and the project eyeWitness is an initiative that builds a dossier for videos and pictures that shall increase the potential of the gathered information to be used as evidence by capturing essential metadata and the chain of custody.32 There are also several organisations monitoring the conflict in Syria including the Syrian Archive33 and the Syrian Justice and Accountability Centre34 that have created large data collections full of audio-visual material regarding potential grave crimes and human rights violations. In addition, Benetech uses machine learning and computer vision to analyse a large amount of data to support investigators35 and Bellingcat is gathering technical expertise to sort, analyse and authenticate large collections of data.36

28 Mark S. Ellis, ‘The Contribution of Non-Governmental Organisations to the Creation of International Criminal Tribunals’ in Bartram S. Brown (ed), Research Handbook on International Criminal Law (Edward Elgar Pub 2011) 143–152; Barbara K. Woodward, ‘The Role of International NGOs: An Introduction’ (2011) 19 (2) Willamette Journal of International Law and Dispute Resolution 203, 212–217. 29 See in general, e.g., Sam Dubberley et al. (eds), Digital Witness: Using Open Source Information for Human Rights Investigation, Documentation, and Accountability (Oxford University Press 2020); Brianne McGonigle Leyh, ‘Changing Landscapes in Documentation Efforts: Civil Society Documentation of Serious Human Rights Violations’ (2017) 33 (84) Utrecht Journal of International and European Law 44; Philip Alston and Ryan Goodman, International Human Rights: The Successor to International Human Rights in Context: Law, Politics and Morals: Text and Materials (Oxford University Press 2012) 1504 et seq. 30  See in general Dia Kayyali et al., ‘Digital Video Evidence, When Collected, Verified, Stored and Deployed Properly, Presents New Opportunities for Justice, ICC Forum’ (ICC Forum, June 2020– January 2021) accessed 8 June 2023. 31 WITNESS, ‘Our Work’ accessed 8 June 2023. 32  eyeWitness, ‘Welcome to eyeWitness’ accessed 8 June 2023. 33  Syrian Archive, ‘Syrian Archive’ accessed 8 June 2023: ‘Syrian Archive is a Syrian led project that aims to preserve, enhance and memorialise documentation of human rights violations and other crimes committed by all parties to conflict in Syria for use in advocacy, justice and accountability’. They collect, preserve, process, verify and investigate. 34 Syria Justice and Accountability Centre, ‘Current Projects’ (2022) accessed 8 June 2023: ‘SJAC collects and preserves documentation of violations of human rights, humanitarian, and international criminal law in Syria in order to facilitate transitional justice and accountability efforts’. 35  Benetech, ‘JusticeAI: Turning Conflict Data into Actionable Evidence’ accessed 8 June 2023. 36  Bellingcat, accessed 8 June 2023.

208  Kristina Hellwig The growing importance of third parties can also be attributed to new technological developments.37 As technology advanced and digital devices became integral parts of military operations and everyday civilian life,38 the means to collect, store and share information in digital formats increased exponentially. Accordingly, technical advances, the widespread availability of digital devices and the World Wide Web have significantly changed the documentary field39 and allowed for an increase in third-party40 and open-source investigation.41 Hence, satellite imagery, communication data, drone footage and user-generated content, for example, videos and photography, are becoming essential tools supporting the fact-finding process.42 All these activities are accompanied by the increasing sophistication and professionalism within this field.43 This trend is also demonstrated by the recently published Berkley Protocol, which sets standards for open-source investigation by NGOs, and again, NGOs were largely involved in the drafting44 and other protocols such as the Lund-London Guidelines.45 Even though not binding, these instruments show the growing awareness of the need for professionalism and working standards.

37  See, e.g., Kristina Hellwig, ‘The Potential and the Challenges of Digital Evidence in International Criminal Proceedings’ (2021) 22 (5–6) International Criminal Law Review 965. 38 See generally Lindsay Freeman, ‘Law in Conflict: The Technological Transformation of War and its Consequences for the International Criminal Court’ (2019) 51 (3) New York University Journal of International Law and Politics 808, 860 f; Sean E. Goodison et al., Digital Evidence and the U.S. Criminal Justice System: Identifying Technology and Other Needs to More Effectively Acquire and Utilise Digital Evidence (RAND Corporation 2015) accessed 8 June 2023. 39 Brianne McGonigle Leyh, ‘Changing Landscapes in Documentation Efforts: Civil Society Documentation of Serious Human Rights Violations’ (2017) 33 (84) Utrecht Journal of International and European Law 44, 49. 40 Molly K. Land, ‘Democratising Human Rights Fact-Finding’ in Philip Alston and Sarah Knuckey (eds), The Transformation of Human Rights Fact-Finding (Oxford University Press 2016) 399. 41 Human Rights Center, UC Berkeley School of Law and UN Office of the High Commissioner for Human Rights, Berkeley Protocol on Open Source Investigations, 1 December 2020, paras 14, 20. 42 For an analysis of the evolution of digital evidence in ICL, see, e.g., Lindsay Freeman, ‘Digital Evidence and War Crimes Prosecutions: The Impact of Digital Technologies on International Criminal Investigations and Trials’ (2018) 41 (2) Fordham International Law Journal 283, 291–307. 43 Zoe Pearson, ‘Non-Governmental Organisations and the International Criminal Court: Changing Landscapes of International Law’ in Antonio Cassese et al. (eds), International Criminal Law – Critical Concepts in Law – Volume III (Routledge 2015) 87; Philip Alston and Ryan Goodman, International Human Rights: The Successor to International Human Rights in Context: Law, Politics and Morals: Text and Materials (Oxford University Press 2012) 1504 et seq. 44 Human Rights Center, UC Berkeley School of Law and UN Office of the High Commissioner for Human Rights, Berkeley Protocol on Open Source Investigations, 1 December 2020. 45 International Bar Association: Human Rights Institute, Guidelines on International Human Rights Fact-Finding Visits and Reports (‘Lund-London Guidelines’), 1 June 2009, accessed 8 June 2023.

Third-Party Investigation in ICL  209 8.3 What Role for Public Interest Litigation in International Criminal Law? In light of the aforementioned developments, two interconnected questions arise of how third parties can participate in ICP and whether the growing prevalence of third-party investigation can be classified as public interest litigation. However, to answer these questions, it is first necessary to address the general applicability and transferability of the concept of public interest litigation to the context of ICL. While ICL can also be beneficial for protecting the values of the whole international community,46 the primary objective of ICP is first and foremost to determine the guilt or innocence of an accused.47 And as conducting these trials before ICTs is in the hands of the trial parties (while being supported by member states), the subsequent question is to what extent the concept of public interest litigation is applicable or appropriate in this context. Hence, before shifting to a more practiceoriented perspective, this section will attempt to provide a more theoretical assessment of this issue. As there is no generally accepted understanding of public interest litigation, different ways of defining this concept exist throughout court rulings and academic papers.48 For instance, some have defined public interest litigation as proceedings in which the public or the community at large has some pecuniary or legal interests.49 Others have referred to public interest litigation as law-based advocacy intended to secure court rulings to clarify, expand or enforce rights for persons beyond the individuals named in the case at hand.50 And sometimes, the understanding is even more abstract and only refers to a legal strategy used to trigger social or legal change where there is no political will to do so and obtain redress from injustices experienced by disadvantaged groups.51 Additionally, from its wording, the term can be divided into two subordinate aspects: first, the need for a ‘public interest’ to be present and second, some form of ‘litigation’ to be pursued. What these defini-

46 Helmut Satzger, International and European criminal law (2nd edn, C.H. Beck, Hart, Nomos 2018) 215 f; Gerhard Werle and Florian Jeßberger, Principles of International Criminal Law (3rd edn, Oxford University Press 2014) 30 et seq. 47 Jonathan Hafetz, Punishing Atrocities through a Fair Trial: International Criminal Law from Nuremberg to the Age of Global Terrorism (Cambridge University Press 2018) 109. 48 For a summary see, e.g., James A. Goldston, ‘Public Interest Litigation in Central and Eastern Europe: Roots, Prospects, and Challenges’ (2006) 28 (2) Human Rights Quarterly 492, 496 et seq. 49 See with a similar definition, e.g., Christine M Forster and Vedna Jivan, ‘Public Interest Litigation and Human Rights Implementation: The Indian and Australian Experience’ (2008) 3 (1) Asian Journal of Comparative Law 1, 1, 3; Hari B. Tripathi, ‘Public Interest Litigation in Comparative Perspective’ (2007) 1 National Judicial Academy Law Journal 49, 50. 50 See, e.g., Daniel-Stefan Paraschiv, ‘Public Interest Litigation in Europe’ (2011) 3 Contemporary Readings in Law and Social Justice 122, 123; James A. Goldston, ‘Public Interest Litigation in Central and Eastern Europe: Roots, Prospects, and Challenges’ (2006) 28 (2) Human Rights Quarterly 492, 496. 51 E.g., Josh Gibson, ‘Public Interest Litigation Matures in Australia’ (2019) 28 (1) Human Rights Defender 19, 20 f; Eliza Ginnivan, ‘Public Interest Litigation: Mitigating Adverse Costs Order Risks’ (2016) 62 (136) Precedent Australia Lawyers Alliance 22.

210  Kristina Hellwig tions have in common is that they are, at their core, about using legal instruments to advance public interests through individual procedures. Considering these rather diverse definitions, the question will be to what extent and which understanding of public interest litigation is suitable or applicable within the framework of ICL, while, at least for the beginning, assuming a broad understanding and working primarily with the wording of the term. 8.3.1  Is There a ‘Public Interest’ in ICL?

One could first ask whether the prosecution of individuals for core crimes can at all be considered to be in the public interest. Here too, one is faced with a very unspecified term and the question of what ‘public interests’ are in the first place. Generally, determining the scope and understanding of ‘public interests’ requires a significant amount of interpretation or hypothetical assumption on the interests of ‘the public’ and also some kind of definition of who the public is. However, there seems to be some kind of overarching understanding that some issues are of such fundamental nature that they are with more certainty in the interest of the ‘public’, i.e., the comprehensive majority of humankind, such as ensuring the survival and continued existence of humankind or the group at hand and ensuring their basic needs. If one were to agree with the assumption that, as the preamble of the Rome Statute emphasises, grave crimes ‘threaten the peace, security and well-being of the world’52 and that the establishment of ICTs should ‘contribute to the national reconciliation and to the restoration and maintenance of peace’,53 there is a strong rationale for considering core crimes prosecution and ending the impunity for the most serious human rights violations – such as war crimes, inhumane treatment and genocide – a ‘public interest’. While it would be hard to argue that every criminal case prosecution can be regarded as being in the public interest, the mere criminalisation of these serious human rights violations, without effective prosecution, can hardly be sufficient. Although the deterrent effect of ICL may be ground for many discussions,54 it can be argued that without the existence of some form of resolution and procedure, the situation would be even more unsatisfactory, both for the affected groups as well as for the overall state of peace. Accordingly, there

52 See also UN Security Council, Security Council resolution 827 (1993) [International Criminal Tribunal for the former Yugoslavia (ICTY)], 25 May 1993, S/RES/827 (1993); UN Security Council, Security Council resolution 955 (1994) [Establishment of the International Criminal Tribunal for Rwanda], 8 November 1994, S/RES/955 (1994). 53 See, e.g., ibid. (UNSC Res 955; UNSC Res 827). 54 See in general, e.g., Linda Carter and Jennifer Schense (eds), Two Steps Forward, One Step Back: The Deterrent Effect of International Criminal Tribunals (Torkel Opsahl Academic EPublisher 2017).

Third-Party Investigation in ICL  211 is a strong rationale for the argument that there can very well be a public interest in prosecuting those ‘most responsible’55 for the commitment of core crimes.56 8.3.2  Is There Space for Public Interest ‘Litigation’ in ICP?

The second issue is whether there is any space for ‘litigation’ in the context of ICP. When comparing other international courts to ICTs, it is apparent that the ICTs’ bodies have greater control over the proceedings conducted before them. For instance, while investigations into situations57 by the ICC can be triggered by state58 – or Security Council – referral,59 the Prosecutor can also initiate a proprio motu investigation independently.60 Further, the determination of whether a specific case should be prosecuted before the ICC has been entrusted to the independent Prosecutor.61 Additionally, the theoretical foundation of ICP is not particularly oriented towards third-party participation. Nevertheless, the ICC’s legal framework does provide some means by which third parties can, at least to some degree, contribute to the proceedings. First, third parties can provide the prosecution with ‘information on crimes within the jurisdiction of the court’ and thus provide the practical means to initiate the proprio motu investigation, i.e., information on the occurrence of crimes and potentially responsible individuals.62 However, whether the conditions to initiate an investigation are met is an independent decision of the prosecution and is also subject to review by the Pre-Trial Chamber.63 Another advocacy potential is provided by Art 15(2) Rome Statute, according to which the Prosecution may seek

55 This term has been used to describe the selection of cases by the ICC’s Prosecution. While this is no longer the main strategy of the ICC’s Prosecutor, it is still a part of it, see, e.g., International Criminal Court Office of the Prosecutor, Strategic Plan 2019–2021, 17 July 2019, paras 18 et seq. 56  See, e.g., Helmut Satzger, International and European Criminal Law (2nd edn, C.H. Beck, Hart, Nomos 2018) 215 et seq., who refers to ICL as serving the ‘purpose of protecting essential legal interests’. 57  In this context, the term ‘situation’ refers to the entirety of legal and factual events in a country in terms of temporal, territorial and potentially personal parameters. Following the choice to investigate a situation, the Prosecutor decides which ‘cases’ to prosecute. ‘Cases’ are defined more narrowly and relate to one or several specified suspects and conducts. 58 United Nations General Assembly, Rome Statute of the International Criminal Court, 17 July 1998, Arts 13(a), 14. 59 United Nations General Assembly, Rome Statute of the International Criminal Court, 17 July 1998, Art 13(b). 60  United Nations General Assembly, Rome Statute of the International Criminal Court, 17 July 1998, Arts 13 (c), 15. For the conditions for proprio motu investigations, see also Rome Statute, Art 17(1). 61 United Nations General Assembly, Rome Statute of the International Criminal Court, 17 July 1998, Arts 15(1), 17, 53. 62  United Nations General Assembly, Rome Statute of the International Criminal Court, 17 July 1998, Art 15(1), (6). 63  United Nations General Assembly, Rome Statute of the International Criminal Court, 17 July 1998, Arts 15(3)–(5), 53.

212  Kristina Hellwig additional information from NGOs or other reliable sources.64 This also allows the Prosecution to receive additional information from third parties.65 Further, during trial, the Prosecutor may seek additional information from non-governmental organizations.66 Secondly, third parties can provide evidence or legal opinions for and during trial. Rule  103  of the ICC’s Rules of Procedure and Evidence (RPE)67 sets the conditions for amicus curiae briefs and other forms of submissions, stating that the Chamber may grant leave to organisations or persons to submit observations that the Chamber deems appropriate. While some amicus submissions follow a call for observations, there is also the possibility to submit unprompted voluntarily.68 As the wording suggests, the Chamber is free to decide if they ‘grant leave’ to the organisation.69 In the past, such amicus curiae briefs were granted on legal and sometimes factual issues.70 Overall, amicus curiae briefs have their limits as the amicus is not considered a trial party and their submissions will only be part of the records if they were accepted and granted by the Chamber.71 For the sake of complementarity, one should also mention that NGO representatives can also be invited as experts before the court.72 However, here the initiative is taken by the trial parties and can hardly be influenced by the NGOs wishing to share their information.

64 See United Nations General Assembly, Rome Statute of the International Criminal Court, 17 July 1998, Art 15(2). 65  Sarah Williams and Emma Palmer, ‘Civil Society and Amicus Curiae Interventions in the International Criminal Court Part I: Focus on the International Criminal Court’ (2016) 2016 (1) Acta Juridica 40, 48. 66  United Nations General Assembly, Rome Statute of the International Criminal Court, 17 July 1998, Art 54(3)(a); International Criminal Court, Rules of Procedure and Evidence, 3–10 September 2002, Official Records, ICC-ASP/1/3 (Part II-A), Rule 104, adopted by the Assembly of states parties to the Rome Statute, in accordance with Article 51 of the Rome Statute, at its first session in NewYork, 3–10 September 2002. 67  International Criminal Court, Rules of Procedure and Evidence, 3–10 September 2002, Official Records, ICC-ASP/1/3 (Part II-A), Rule 103, adopted by the Assembly of states parties to the Rome Statute, in accordance with Article 51 of the Rome Statute, at its first session in New-York, 3–10 September 2002. 68 Sarah Williams and Emma Palmer, ‘Civil Society and Amicus Curiae Interventions in the International Criminal Court Part I: Focus on the International Criminal Court’ (2016) 2016 (1) Acta Juridica 40, 51. 69 Ibid., 44 et seq. 70  See in general, Sarah Williams and Hannah Woolaver, ‘The Role of the Amicus Curiae before International Criminal Tribunals’ (2006) 6 (2) International Criminal Law Review 151; Sarah Williams and Emma Palmer, ‘Civil Society and Amicus Curiae Interventions in the International Criminal Court Part I: Focus on the International Criminal Court’ (2016) 2016 (1) Acta Juridica 40. 71 Sarah Williams and Emma Palmer, ‘Civil Society and Amicus Curiae Interventions in the International Criminal Court Part I: Focus on the International Criminal Court’ (2016) 2016 (1) Acta Juridica 40, 47. 72  Mark S. Ellis, ‘The Contribution of Non-Governmental Organisations to the Creation of International Criminal Tribunals’ in Bartram S. Brown (ed), Research Handbook on International Criminal Law (Edward Elgar Pub 2011) 159–160.

Third-Party Investigation in ICL  213 Lastly, NGOs may also be active in the representation of victims73 and the advocacy for their rights and protection.74 Organising as or behind the legal representation of victims might provide access to additional procedural means. For instance, according to Art 68(3) Rome Statute, victims shall be permitted to present their views and concerns. In addition, while not explicitly provided by the Statute or RPE, the ICC has recognised that victims have the right to request to submit evidence under specific circumstances.75 Accordingly, if NGOs were to organise themselves within this framework and thus support and represent the victims, the procedural possibilities could be broader. What is apparent, however, is that – besides the area of victim representation – third parties, such as NGOs and civil society, in general, have more of a bystander role in ICP. Due to these limitations, and the overall limitation of ICL, some have argued that the chances of NGOs to pursue public interests before ICTs are rather limited76 and thus, they should concentrate on domestic proceedings.77 If one were to apply a similar understanding of public interest litigation as Goldston, for example, one would likely only speak of public interest litigation before the ICC in cases where NGOs support specific victims to secure court rulings that clarify, expand or enforce rights beyond this individual.78 This perspective, however, comes short in some respect. To assume that third parties must have standing before a court for there to be the possibility of public interest litigation would be rather unsatisfactory, at least in the ICP context. Especially for the field of ICL, a broader understanding of ‘litigation’ might be appropriate, for instance, one similar to Ginnivan’s or Gibson’s suggestion, according to which public interest litigation is a legal strategy used to trigger social or legal change where there is no political will to do so and obtain redress from injustices experienced by disadvantaged groups.79 This is supported by the increasing practical role that NGO and civil society activities can play in ICP. The fight against impunity and the collection of evidence begins long before trial. Archiving and securing digital evidence on databases, which can later be accessed by ICTs,

73  International Criminal Court, Rules of Procedure and Evidence, 3–10 September 2002, Official Records, ICC-ASP/1/3 (Part II-A), Rules 85–93. 74 Charles C. Jalloh, ‘The Role of Non-Governmental Organisations in Advancing International Criminal Justice’ (2015) 1 (1) African Journal of International Criminal Justice 47, 69–70. 75  The Prosecutor v. Thomas Lubanga Dyilo (2008), Judgment on the appeals of The Prosecutor and The Defence against Trial Chamber I’s Decision on Victims’ Participation of 18 January 2008, ICC-01/04-01/06-1432, Appeals Chamber, International Criminal Court, 11 July 2008, paras 97–99. 76  John Dugard, ‘International Criminal Law, the International Criminal Court, and Civil Society’ (2016) 2016 Acta Juridica 3, 9–12. 77  Ibid., 15. 78 See James A. Goldston, ‘Public Interest Litigation in Central and Eastern Europe: Roots, Prospects, and Challenges’ (2006) 28 (2) Human Rights Quarterly 492, 496 et seq. 79 See Josh Gibson, ‘Public Interest Litigation Matures in Australia’ (2019) 28 (1) Human Rights Defender 19, 20 f; Eliza Ginnivan, ‘Public Interest Litigation: Mitigating Adverse Costs Order Risks’ (2016) 62 (136) Precedent Australia Lawyers Alliance 22.

214  Kristina Hellwig has many advantages.80 Satellite and video recordings, conversations, interviews, orders and much more can be preserved over long periods of time without losing their informational value if saved and stored correctly.81 In this way, digital evidence can help reconstruct past events after long periods of time even in situations where state cooperation is lacking.82 Especially when the resources or prioritisation of states do not correspond with the desire of the population for criminal prosecution, or when groups are harmed by actors who can be categorised as belonging to the state apparatus, these alternative means may solve evidentiary issues. Accordingly, these activities hold the potential to achieve the aims set in the field of ICL by supporting and providing essential information to the Prosecutor. Hence, if one considers public interest litigation as achieving legal and public interests by utilising available legal means, the organisation of civil society in the fight against impunity can very well be considered public interest litigation in a broad sense. 8.4 Challenges and Positive Impact of Third-Party Investigations Beyond the abstract question of whether public interest litigation can exist in ICP, equally important is the question of whether reality can live up to these theoretical considerations. Therefore, this section will focus on determining the current limits, challenges and strengths of third-party investigation with a special emphasis on the question of whether these activities pursue the public’s interests, both in terms of their substance and objectives. 8.4.1  Potential Challenges Resulting from Third-Party Investigation

If one follows the analysis set out in the last section that, in principle, participation and assistance in the investigation and prosecution of core crimes can be in the public interest, a subsequent question is what limitations and challenges may arise in practice. Therefore, this section shall briefly address some pressing theoretical and practical challenges in relation to third-party investigations in ICP and how these aspects are related to the overarching question of whether and how third parties can and are acting in the public’s interest in the context of ICL.

80 See, e.g., Lindsay Freeman ‘Prosecuting Atrocity Crimes with Open Source Evidence: Lessons from the International Criminal Court’ in Sam Dubberley et al. (eds), Digital Witness: Using Open Source Information for Human Rights Investigation, Documentation, and Accountability (Oxford University Press 2020); Kristina Hellwig, ‘The Potential and the Challenges of Digital Evidence in International Criminal Proceedings’ (2021) 22 (5–6) International Criminal Law Review 965. 81 For this topic see, e.g., Kristina Hellwig, ‘The Potential and the Challenges of Digital Evidence in International Criminal Proceedings’ (2021) 22 (5–6) International Criminal Law Review 965. 82 Ibid.

Third-Party Investigation in ICL  215 8.4.1.1 Reliability and Credibility Instead of Neutrality

Precisely because of the large number of different actors, one must ask the question of who NGOs represent.83 Can NGOs actually represent the public, or are they solely interest groups, or worse: do they only represent the interests of a few? This is particularly relevant and often difficult to answer in the field of ICL. As ICP regularly revolves around armed conflicts, there is always a certain risk that in the context of ICL, too, the conflict is ultimately being perpetuated as the groups accuse each other of committing core crimes during the conflict, and the question of guilt is being pushed into the background. Moreover, some third parties may ultimately solely pursue the interests of particular groups or individuals. While in some instances the interests of groups may be in line with those of the public, the contrary is also possible. For instance, some may utilise ICP to get rid of political opponents, rather than aiming at achieving justice by prosecuting those who have committed core crimes. In such cases, their involvement in ICP could potentially undermine the trial, especially if these groups use unfair means or engage in illegal activities. Additionally, experience has shown that in some cases, the involvement of third parties can also cause problems, for instance, if they tamper with evidence.84 A rather vivid example of this risk is shown in the Lubanga case, where local NGOs influenced witnesses into making misleading statements.85 While in this case, it is questionable whether there was any ill intent or not, it is not impossible that such situations may occur intentionally in the future. Therefore, it cannot be assumed that every third party wishing to participate in the proceedings is actually acting in the public interest. If one asks what criteria could be used to make a distinction here, it would be possible, for example, to demand that NGOs must have a certain neutrality in order to be considered as acting in the public interest. On the other hand, one could also rightfully argue that it is not the task of NGOs to be neutral, but that of the court, which is tasked with evaluating the available evidence and has to reach a verdict. As the existence of a public interest will always at least partially depend on interpretation and a form of evaluation of the view of many, it might be difficult to demand the neutrality of third parties in a way similar to the bodies of the court.86 Rather, one should call for a high level of reliability and credibility regarding the entities and the evidence collected by them. Additionally, the reliability of third parties and the evidence provided by them cannot be taken for granted or merely assumed; it should be evaluated in trial. In a similar manner, the ICC’s Prosecution has clarified that 83 Charles C. Jalloh, ‘The Role of Non-Governmental Organisations in Advancing International Criminal Justice’ (2015) 1 (1) African Journal of International Criminal Justice 47, 48. 84 See Rafael Braga Da Silva, ‘Sherlock at the ICC?’ (2020) 18 (1) Journal of International Criminal Justice 59, 68 et seq. 85 Charles C. Jalloh, ‘The Role of Non-Governmental Organisations in Advancing International Criminal Justice’ (2015) 1 (1) African Journal of International Criminal Justice 47, 64–65; Caroline Buisman, ‘Delegating Investigations: Lessons to be Learned from the Lubanga Judgment’ (2013) 11 (3) Northwestern Journal of Human Rights 30, 31 et seq. 86 Here as well, the understandings differ through different legal traditions.

216  Kristina Hellwig the information received from NGOs is subject to analysis and evaluation regarding its reliability and credibility.87 Another aspect for consideration is that, for the reliability and credibility of evidence to be verified, sufficient information in this regard should be provided. In the past, NGO reports showed weaknesses in this respect, as it was often unclear what information the results were based on.88 Newer forms of evidence collection, such as digital databases and digital evidence, allow for a different approach. Data collections provide more means to circumvent this issue as the data can be shared with the court and thereafter be tested and evaluated independently.89 8.4.1.2 The Question of Professionalism: The Need for Additional Standards

Further, even when NGOs are reliable and credible in general and wish to act in the interest of the public, there are additional questions regarding the methodology and potential standards on how to investigate, document, assess and report. For the involvement of third parties to be promising, the gathered information in itself must be reliable. However, without set rules on these aspects, these issues are open to internal decisions. For instance, as exemplified by Zacher et al., who examined the reports of different NGOs on the same issue, NGOs can come to different results even regarding the ‘hard facts’, such as the number of victims, due to different methodologies and orientations within their investigation.90 Thus, even if NGOs are generally reliable, their methodology and areas of activity may lead to different results. This is of course related to the question of what expertise is available at the expense of NGOs and to what extent they are used.91 These aspects are, of course, all the more problematic in regard to NGO reports, but they may also occur in the context of handling and collecting data. For instance, the verification of collected information,92 particularly in cases of open-source investigation, can be technically demanding. However, it must take place as otherwise it could devalue the usefulness of said data for ICP. Gathering unreliable or false informa-

87 International Criminal Court Office of the Prosecutor, Policy Paper on Preliminary Examinations, 1 November 2013, paras 27, 31. 88 Lindsay Freeman ‘Prosecuting Atrocity Crimes with Open Source Evidence: Lessons from the International Criminal Court’ in Sam Dubberley et al. (eds), Digital Witness: Using Open Source Information for Human Rights Investigation, Documentation, and Accountability (Oxford University Press 2020) 55. 89 For a more in depth analysis, see, e.g., Lindsay Freeman, ‘Digital Evidence and War Crimes Prosecutions: The Impact of Digital Technologies on International Criminal Investigations and Trials’ (2018) 41 (2) Fordham International Law Journal 283; Kristina Hellwig, ‘The Potential and the Challenges of Digital Evidence in International Criminal Proceedings’ (2021) 22 (5–6) International Criminal Law Review 965. 90 Meghan Zacher et al., ‘NGOs, IOs, and the ICC: Diagnosing and Framing Darfur’ (2014) 29 (1) Sociological Forum 29. 91 Molly K. Land, ‘Democratising Human Rights Fact-Finding’ in Philip Alston and Sarah Knuckey (eds), The Transformation of Human Rights Fact-Finding (Oxford University Press 2016) 413. 92 Ibid., 409.

Third-Party Investigation in ICL  217 tion, especially when done in bulk, can ultimately slow down and complicate the procedure instead of facilitating it. Accordingly, professionalism and standards in relation to the contributions of third parties are interlinked with the quality and success of their activities. And overall, these aspects can also be decisive in relation to the general potential and quality of any public interest litigation. Therefore, solutions in relation to standards, the necessary technical expertise and many more must be found in the future. It should be emphasised here that there are wide-ranging activities on the part of NGOs, as shown by the Berkley and Lund Protocols, which set standards for various investigative activities, albeit of a non-binding nature.93 Further, international scholars have been active in this field as well, trying to provide the necessary level of legal expertise.94 8.4.1.3 The Question of Influence: Independence and Obligations of the Prosecution

Another aspect that must be mentioned here is how the activities of NGOs affect the trial parties, or in this case, the Prosecutor in particular. This aspect is somewhat special to the context of ICP and touches upon the general desirability of public interest litigation in ICL and how to achieve a balance between the need or wish for third-party involvement and the need for a full and independent investigation in line with the obligations of the Prosecutor. As briefly outlined, the Prosecutor must ultimately build the case against the accused. In this context, it can create a certain unease when ‘outsiders’ take over this task, especially when the prosecution has little control over their activities. There are many conceivable scenarios. For instance, if the Prosecutor lacks the resources and the cooperation of states, he or she may need to heavily rely on third-party evidence gathering. This could of course have a strong influence on the crimes and persons prosecuted merely due to the available evidence, as NGOs may concentrate on different issues and aspects. In this context, Buisman contended that merely focusing on the crimes for which the Prosecutor has been provided with evidence by NGOs and third parties would not constitute a full investigation and would not suffice in the context of justice.95 In addition, the Prosecutor has a duty to investigate independently. It has also been

93 International Bar Association: Human Rights Institute, Guidelines on International Human Rights Fact-Finding Visits and Reports (‘Lund-London Guidelines’), , accessed 8 June 2023, 1 June 2009; Human Rights Center, UC Berkeley School of Law and UN Office of the High Commissioner for Human Rights, Berkeley Protocol on Open Source Investigations, 1 December 2020. 94 See, e.g., Sam Dubberley et al. (eds), Digital Witness: Using Open Source Information for Human Rights Investigation, Documentation, and Accountability (Oxford University Press 2020). 95 Caroline Buisman, ‘Delegating Investigations: Lessons to be Learned from the Lubanga Judgment’ (2013) 11 (3) Northwestern Journal of Human Rights 30, 79.

218  Kristina Hellwig argued that outsourcing investigations would undermine the ICC as an institution and potentially deprive the victims of accountability.96 Accordingly, there is a need to find a solution that makes it possible to benefit from third-party investigations while limiting the risk of ‘pre-sorted’ information and still conducting a ‘full’ investigation, especially in cases where the Prosecutor and the Defence have no access to the full set of data.97 At its core, this issue touches upon the limits that ICP sets for any public interest litigation. After all, the participation of third parties should not compromise procedural safeguards such as those ensuring a fair trial. A solution might be to demand full access for the Prosecutor to the data collection. However, this may not suffice, as the amount of data may not be manageable for the Prosecution. Ultimately, there may be a need to build both human and technical capacity to process large amounts of data. 8.4.1.4 The Question of Human Rights Protection

Similar to the general question in relation to the concept of public interest litigation on how to deal with situations in which an action may overall benefit the public or humankind but on the flipside potentially harm certain individuals,98 in the context of ICL, there is the question of the correct approach to the topic of human rights protection during the involvement of third parties in the collection of evidence. While the activities of third parties and their involvement in the investigation of core crimes may be beneficial in general and support the fact-finding process, there are instances in which human rights issues may occur, especially in relation to the rights of the accused, witnesses and victims. Here, only two aspects will be discussed exemplarily, namely the right to a fair trial and the right to privacy. The first aspect to be highlighted is the potential implication for the principles of fair trial99 and equality of arms,100 which are important safeguards within the ICC’s

  96 Ibid., 82.   97 Rebecca Hamilton, ‘User-Generated Evidence’ (2018) 57 (1) Columbia Journal of Transnational Law 12–13, 41, 44; Alexander Heinze, ‘Private International Criminal Investigations’ (2019) 14 Zeitschrift für Internationale Strafrechtsdogmatik 169, 181.   98 This raises many subsequent questions such as when one can speak of harm, if there can be a public interest that harms a specific group, whether for the action not to be considered a public interest, it must have a certain severity or unjustifiability, or whether the concept of PIL can be regarded as neutral as it generally only uses available legal procedures.   99 See in general, e.g., Salvatore Zappalà, Human Rights in International Criminal Proceedings (Oxford University Press 2005) 112 et seq; Yvonne McDermott, Fairness in International Criminal Trials (Oxford University Press 2016) 29–30. 100 See e.g. Salvatore Zappalà, Human Rights in International Criminal Proceedings (Oxford University Press 2005) 112 et seq.; Yvone McDermott, Fairness in International Criminal Trials (Oxford University Press 2016) 112 et seq.; see in general Paul M. Taylor, A Commentary on the International Covenant on Civil and Political Rights (Cambridge University Press 2020) Art 14, p. 377 et seq.; Rebecca Hamilton, ‘User-Generated Evidence’ (2018) 57 (1) Columbia Journal of Transnational Law 12–13, 39 et seq.

Third-Party Investigation in ICL  219 legal framework.101 Here, issues may arise, as NGOs are not bound by the same procedural and human rights rules but in some instances may have full control over the data collection. In contrast to the Prosecution,102 NGOs do not hold the obligation to collect or provide the defence with exculpatory evidence,103 leading to issues if the evidence is in the mere control of the NGO. Problems may also arise when confidentiality agreements with NGOs are in place limiting the availability of essential information to the defence to authenticate evidence.104 An additional area of risk exists in regard to the protection of the right to privacy.105 While there is a lack of general reference to and recognition of this right within the ICTs’ legal frameworks,106 as the right to privacy is an internationally recognised human right,107 it is an integral part of the applicable law before the ICC and, hence, was also recognised within its jurisprudence.108 The risk of interfering with this right may arise where the party collecting and providing data to ICTs and the one whose privacy is affected differ and both sides have contrasting stand-

101 See, e.g., the reference to this right in United Nations General Assembly, Rome Statute of the International Criminal Court, 17 July 1998, Art 69(4), but also the general applicability of internationally recognised human rights according to Rome Statute, Art 21(3). 102 United Nations General Assembly, Rome Statute of the International Criminal Court, 17 July 1998, Art 54 (1)(a). 103 Rafael Braga Da Silva, ‘Sherlock at the ICC?’ (2020) 18 (1) Journal of International Criminal Justice 59, 76; See also The Prosecutor v. Germain Katanga (2010), Judgment on the Appeal of Mr Katanga Against the Decision of Trial Chamber II of 22 January 2010 Entitled ‘Decision on the Modalities of Victim Participation at Trial’, ICC-01/04-01/07-2288, Appeals Chamber, International Criminal Court, 16 July 2010, paras 43–48, 87: referring to victims. 104 Alexander Heinze, ‘Private International Criminal Investigations’ (2019) 14 Zeitschrift für Internationale Strafrechtsdogmatik 169, 180; Charles C. Jalloh, ‘The Role of Non-Governmental Organisations in Advancing International Criminal Justice’ (2015) 1 (1) African Journal of International Criminal Justice 47, 66; Caroline Buisman, ‘Delegating Investigations: Lessons to be Learned from the Lubanga Judgment’ (2013) 11 (3) Northwestern Journal of Human Rights 30, 36. 105 United Nations General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, Art 17; Council of Europe, Convention for the Protection of Human Rights and Fundamental Freedoms, as amended, 4 November 1950, Art 8; Organization of American States (OAS), American Convention on Human Rights, ‘Pact of San Jose, Costa Rica’, 22 November 1969, Art 11; United Nations General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III), Art 12. 106 It is explicitly mentioned only in the context of the rights of victims and witnesses and confidential communications, see United Nations General Assembly, Rome Statute of the International Criminal Court, 17 July 1998, Arts 57(3)(c), 68(1). 107 Pursuant to United Nations General Assembly, Rome Statute of the International Criminal Court, 17 July 1998, Art 21, ‘internationally recognized human rights’ are an integral part of the applicable law before the court. 108 See, e.g., The Prosecutor v. Bemba Gombo et al (2018), Judgment on the appeals of Mr JeanPierre Bemba Gombo, Mr Aimé Kilolo Musamba, Mr Jean-Jacques Mangenda Kabongo, Mr Fidèle Babala Wandu and Mr Narcisse Arido against the decision of Trial Chamber VII entitled ‘Judgment pursuant to Article 74 of the Statute’, ICC-01/05-01/13, Appeals Chamber, International Criminal Court, 8 March 2018, para 284; see also generally George Edwards, ‘International Human Rights Law Challenges to the New International Criminal Court: The Search and Seizure Right to Privacy’ (2001) 26 The Yale Journal of International Law 324.

220  Kristina Hellwig points. For example, while a portion of data is shared with ICTs by individuals willing to take the risks involved, other information is collected or shared without consent and, in some cases, by the perpetrators.109 Furthermore, if data collections are openly accessible, they could be used to identify not only alleged perpetrators but also collectors, victims and witnesses.110 This may significantly affect their right to privacy and sometimes also their safety, especially in ongoing conflicts. While these entities largely act independently, the acceptance and use of the data by ICTs may perpetuate interference in the affected individuals’ right to privacy. Therefore, the protection of potentially affected parties throughout the process is essential.111 While the general issue of how to deal with situations that are beneficial to the public but can harm specific groups can hardly be discussed in satisfactory depth in the context of this contribution, for the context of ICP, the procedural rules of the ICTs as well as the applicable human rights standards can be utilised to derive some standards. Overall, these legal instruments and the jurisprudence on these topics can serve as a guideline to set appropriate boundaries and a framework for the inclusion and participation of third parties in ICP. However, until now, there has been a lack of internationally applicable law in this framework.112 Within the current international legal framework, there are no clear internationally binding obligations for NGOs to respect human rights. However, while NGOs may not be bound by human rights directly, as the ICC adheres to these rights, failure to comply with human rights standards could lead to the exclusion of evidence,113 thus nullifying the work and potential of third-party activities. While there have been serious efforts by NGOs to develop voluntary standards on these issues, such as with the Berkeley Protocol,114 precisely because of the voluntary nature of these instruments, there is still a pressing need to find additional safeguards. Possible solutions include the implementation of additional

109 See, e.g., The Prosecutor v. Al-Werfalli (2017), Public Warrant of Arrest, ICC-01/11-01/17, PreTrial Chamber I, International Criminal Court, 15 August 2017, paras 11–22. 110 Rebecca Hamilton, ‘User-Generated Evidence’ (2018) 57 (1) Columbia Journal of Transnational Law 14, 51–61; Keith Hiatt, ‘Open Source Evidence on Trial’ (2016) 125 Yale Law Journal Forum 323, 324; Dia Kayyali et al, ‘Digital Video Evidence, When Collected, Verified, Stored and Deployed Properly, Presents New Opportunities for Justice, ICC Forum’ (ICC Forum, June 2020– January 2021) accessed 8 June 2023. 111 Susann Aboueldahab and Inês Freixo, ‘App-Generated Evidence: A Promising Tool for International Criminal Justice?’ (2021) 21 (3) International Criminal Law Review 505, 521 et seq.; Keith Hiatt, ‘Open Source Evidence on Trial’ (2016) 125 Yale Law Journal Forum 323, 323 et seq. 112 Rebecca Hamilton, ‘User-Generated Evidence’ (2018) 57 (1) Columbia Journal of Transnational Law 14, 59; Kristina Hellwig, ‘The Potential and the Challenges of Digital Evidence in International Criminal Proceedings’ (2021) 22 (5–6) International Criminal Law Review 96. 113 United Nations General Assembly, Rome Statute of the International Criminal Court, 17 July 1998, Art 69(7). 114 Human Rights Center, UC Berkeley School of Law and UN Office of the High Commissioner for Human Rights, Berkeley Protocol on Open Source Investigations, 1 December 2020.

Third-Party Investigation in ICL  221 (binding) guidelines115 or contract relations with the ICT’s Prosecutions116 or other fact-finding bodies. The latter possibility in particular could help to realise the potential offered by these activities without excessive strain on the rights of the persons concerned if contracts would contain provisions on the respective rights to be protected. 8.4.2  Potentially Positive Impact of Third-Party Involvement in ICL

Despite the presented aspects, there are many reasons to advocate in favour of the increasing activities of NGOs and to consider them as a special form of PIL. Some aspects have been mentioned earlier,117 hence, this section shall only recollect and complement some additional elaborations. 8.4.2.1 Increasing Availability of Evidence

The collection of all available information on grave crimes is a necessary step in the fight against impunity. However, the current system does have some gaps limiting the chances of successful trials.118 The increase in activities holds the potential to close many of those gaps within the current investigative process. Therefore, it has been argued that the evidence provided by NGOs is indispensable to the work of ICTs.119 With the increase in the availability of different types of digital evidence, this trend will likely continue. Digital evidence as such can provide more direct information in contrast to NGO reports. Further, NGOs and civil society can provide the technical expertise needed to deal with modern types of evidence where the resources of ICTs are limited. Overall, these activities are well in line with the idea of public interest litigation.120

115 E.g., Elena A. Baylis ‘Outsourcing Investigations’ (2009) (14) UCLA Journal of International Law & Foreign Affairs 121, 146; International Bar Association, Evidence Matters in ICC Trials, August 2016, accessed 8 June 2023, 26; Alex Whiting, ‘New Institutions to Support First Responders’ in Richard H. Steinberg (ed), The International Criminal Court: Contemporary Challenges and Reform Proposals (Brill Nijhoff 2020) 9; Caroline Buisman, ‘Delegating Investigations: Lessons to be Learned from the Lubanga Judgment’ (2013) 11 (3) Northwestern Journal of Human Rights 30, 81. 116 Rebecca Hamilton, ‘User-Generated Evidence’ (2018) 57 (1) Columbia Journal of Transnational Law 14, 53–61. 117 See also section 8.2. 118 See section 8.2. 119 See, e.g., Mark S. Ellis, ‘The Contribution of Non-Governmental Organisations to the Creation of International Criminal Tribunals’ in Bartram S. Brown (ed), Research Handbook on International Criminal Law (Edward Elgar Pub 2011) 156–157. 120 See section 8.3.

222  Kristina Hellwig 8.4.2.2 Closing the Distance between Affected Groups and ICTs

Another very valuable aspect that should be emphasised is that such developments have the potential to close the distance between ICTs and the affected groups. The change from an investigatory process and procedure organised by distant prosecutors and investigators and taking place before far-away courts to a more involved process where civil society and local entities play a more active role holds a lot of promise. Overall if communities organise and utilise ICP to achieve enforcement of their human rights, the process may gain more acceptance and strength. Additionally, these entities may have better and deeper knowledge about the history of a conflict and also more practical aspects, such as the language used in the specific area. Further, it has been argued that bottom-up activism has positive effects such as strengthening self-autonomy, empowerment and commitment to the general idea as a whole.121 The idea of a bottom-up process,122 i.e., a process initiated by the community and not by outsiders, may also be a form of democratising this process in the available legal means. Hence, this process can have a positive effect on the ICL framework as a whole. Overall, all these aspects reflect the general potential that PIL holds and how it can benefit the public interest in question but also those groups actively participating by utilising the concept of PIL. 8.5 Conclusion This chapter studied the applicability of the concept of public interest litigation in ICP and whether the activities and role of third parties such as NGOs and civil society during the investigation of core crimes can be considered public interest litigation. Overall, the involvement of third parties has the potential to contribute to the acceptance and enforcement of ICL. Third parties have an essential role in practically enabling future proceedings regarding ongoing conflicts and situations that are not yet accessible to ICTs or where no ICT has been established. They can, at least partially, take over some investigative functions and be the sometimes-missing evidence collectors. Data collections of current and past conflicts may be the missing piece in the puzzle for and in future trials. Yet what also becomes apparent is that in order to ensure that the activities of third parties do not ultimately cause more harm, certain standards must be developed and respected. In light of the potential of those activities, solving existing challenges would be worthwhile. As the ICL context illustrates particularly well, public interest litigation can also be considered as filling existing gaps in the attempt to achieve public interests. While some of the challenges and considerations are related primarily to the peculiarities of ICL, some generalisable conclusions can be drawn that may be significant across fields. The assumption that third parties will always objectively act 121 Molly K. Land, ‘Democratising Human Rights Fact-Finding’ in Philip Alston and Sarah Knuckey (eds), The Transformation of Human Rights Fact-Finding (Oxford University Press 2016) 412. 122 Ibid., 400.

Third-Party Investigation in ICL  223 in the interest of the public would be highly dangerous; however, the same goes for assuming that they cannot support and be an important part of the process. Rather, a concept of checks and balances would benefit the purpose of public interest litigation. Third parties need sufficient freedom to forward public interests in the context of law; however, they must also uphold some standards in order to actually support the process they wish to be part of. The search for such standards and guidelines is far from over and will likely be the topic of many future discussions. Further, the organisation of civil society in order to use the available procedural legal means has the potential to change the understanding and acceptance of the specific field of law. Public interest litigation is at least to a certain extent a bottom-up process and has elements of providing necessary checks and balances in the legal field. Bibliography Cases The Prosecutor v. Al-Werfalli (2017), Public Warrant of Arrest, ICC-01/11-01/17, Pre-Trial Chamber I, International Criminal Court, 15 August 2017 The Prosecutor v. Bemba Gombo et al (2018), Judgment on the appeals of Mr Jean-Pierre Bemba Gombo, Mr Aimé Kilolo Musamba, Mr Jean-Jacques Mangenda Kabongo, Mr Fidèle Babala Wandu and Mr Narcisse Arido against the decision of Trial Chamber VII entitled “Judgment pursuant to Article 74 of the Statute”, ICC-01/05-01/13, Appeals Chamber, International Criminal Court, 8 March 2018 The Prosecutor v. Germain Katanga (2010), Judgment on the Appeal of Mr Katanga Against the Decision of Trial Chamber II of 22 January 2010 Entitled "Decision on the Modalities of Victim Participation at Trial", ICC-01/04-01/07-2288, Appeals Chamber, International Criminal Court, 16 July 2010 The Prosecutor v. Thomas Lubanga Dyilo (2008), Judgment on the appeals of The Prosecutor and The Defence against Trial Chamber I's Decision on Victims' Participation of 18 January 2008, ICC-01/04-01/06-1432, Appeals Chamber, International Criminal Court, 11 July 2008

International Treaties Council of Europe, Convention for the Protection of Human Rights and Fundamental Freedoms, as amended, 4 November 1950. Organisation of American States (OAS), American Convention on Human Rights, “Pact of San Jose, Costa Rica”, 22 November 1969. United Nations General Assembly, International Covenant on Civil and Political Rights, 16 December 1966. United Nations General Assembly, Rome Statute of the International Criminal Court, 17 July 1998. United Nations General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III).

Additional Documents and Policy Papers European Commission, European Evidence Project, ‘European Data Informatics Exchange Framework for Courts and Evidence’ (CORDIS EU research results, 10 April 2017) accessed 8 June 2023

224  Kristina Hellwig International Criminal Court Office of the Prosecutor, Strategic Plan 2019-2021, 17 July 2019 International Criminal Court Office of the Prosecutor, Policy Paper on Preliminary Examinations, 1 November 2013

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Third-Party Investigation in ICL  225 Freeman L, ‘Prosecuting Atrocity Crimes with Open Source Evidence: Lessons from the International Criminal Court’ in Sam Dubberley et al. (eds), Digital Witness: Using Open Source Information for Human Rights Investigation, Documentation, and Accountability (OUP 2020). Garner B A, Black’s Law Dictionary (9th edn, Thomson Reuters 2009). Gibson J, ‘Public Interest Litigation Matures in Australia’ (2019) 28 (1) Human Rights Defender 19. Ginnivan E, ‘Public Interest Litigation: Mitigating Adverse Costs Order Risks’ (2016) 62 (136) Precedent Australia Lawyers Alliance 22. Glover R, Murphy on Evidence (15th edn, OUP 2017). Goldston J A, ‘Public Interest Litigation in Central and Eastern Europe: Roots, Prospects, and Challenges’ (2006) 28 (2) Human Rights Quarterly 492. Goodison S E et al., Digital Evidence and the U.S. Criminal Justice System: Identifying Technology and Other Needs to More Effectively Acquire and Utilise Digital Evidence (RAND Corporation 2015) accessed 8 June 2023. Hafetz J, Punishing Atrocities through a Fair Trial: International Criminal Law from Nuremberg to the Age of Global Terrorism (CUP 2018). Hamilton R, ‘User-Generated Evidence’ (2018) 57 (1) Columbia Journal of Transnational Law 14. Harmon M B, and Gaynor F, ‘Prosecuting Massive Crimes with Primitive Tools: Three Difficulties Encountered by Prosecutors in International Criminal Proceedings’ (2004) 2 (2) Journal of International Criminal Justice 403. Heinze, A ‘Private International Criminal Investigations’ (2019) 14 Zeitschrift für Internationale Strafrechtsdogmatik 169. Hellwig K, ‘The Potential and the Challenges of Digital Evidence in International Criminal Proceedings’ (2021) 22 (5–6) International Criminal Law Review 965. Hiatt K, ‘Open Source Evidence on Trial’ (2016) 125 Yale Law Journal Forum 323. Human Rights Center, ‘UC Berkeley School of Law and UN Office of the High Commissioner for Human Rights’ Berkeley Protocol on Open Source Investigations, 1 December 2020. International Bar Association: Human Rights Institute, Guidelines on International Human Rights Fact-Finding Visits and Reports (“Lund-London Guidelines”), 1 June 2009 accessed 8 June 2023. International Bar Association, Evidence Matters in ICC Trials, August 2016, accessed 8 June 2023. Jalloh C C, ‘The Role of Non-Governmental Organisations in Advancing International Criminal Justice’ (2015) 1 (1) African Journal of International Criminal Justice 47. Kayyali D et al., ‘Digital Video Evidence, When Collected, Verified, Stored and Deployed Properly, Presents New Opportunities for Justice, ICC Forum’ (ICC Forum, June 2020– January 2021) accessed 8 June 2023. Kreß C, ‘International Criminal Law’ (Max Planck Encyclopedias of Public International Law 2009). Land M K, ‘Democratising Human Rights Fact-Finding’ in Philip Alston and Sarah Knuckey (eds), The Transformation of Human Rights Fact-Finding (OUP 2016) 399. May R and Wierda M, International Criminal Evidence (Transnational Publishers 2002). McDermott Y, Fairness in International Criminal Trials (OUP 2016). McGonigle Leyh B, ‘Changing Landscapes in Documentation Efforts: Civil Society Documentation of Serious Human Rights Violations’ (2017) 33 (84) Utrecht Journal of International and European Law 44.

226  Kristina Hellwig Meester K, ‘The Investigation Phase in International Criminal Procedure: In Search of Common Rules’ (PhD Thesis, Amsterdam Centre for International Law 2014). Murphy P (ed), Evidence, Proof, and Facts: A Book of Sources (OUP 2003). Paraschiv D-S, ‘Public Interest Litigation in Europe’ (2011) 3 Contemporary Readings in Law and Social Justice 122. Pearson Z, ‘Non-Governmental Organisations and the International Criminal Court: Changing Landscapes of International Law’ in Antonio Cassese et al. (eds), International Criminal Law - Critical Concepts in Law - Volume III (Routledge 2015) 87. Satzger H, International and European Criminal Law (2nd edn, C H Beck, Hart Nomos 2018). Syria Justice and Accountability Centre, ‘Current Projects’ (2022) accessed 8 June 2023. Syrian Archive, ‘Syrian Archive’ accessed 8 June 2023. Taylor P M, A Commentary on the International Covenant on Civil and Political Rights (CUP 2020). Tripathi H B, ‘Public Interest Litigation in Comparative Perspective’ (2007) 1 National Judicial Academy Law Journal 49. Werle G and Jeßberger F, Principles of International Criminal Law (3rd edn, OUP 2014). Whiting A, ‘New Institutions to Support First Responders’ in RH Steinberg (ed), The International Criminal Court: Contemporary Challenges and Reform Proposals (Brill Nijhoff 2020). Williams S and Palmer E, ‘Civil Society and Amicus Curiae Interventions in the International Criminal Court Part I: Focus on the International Criminal Court’ (2016) 2016 (1) Acta Juridica 40. Williams S and Woolaver H, ‘The Role of the Amicus curiae Before International Criminal Tribunals’ (2006) 6 (2) International Criminal Law Review 151. Witness, ‘Our Work’ www​.witness​.org​/our​-work accessed 8 June 2023. Wolfrum R and Möldner M, ‘International Courts and Tribunals, Evidence’ (2013) Max Planck Encyclopedia of Public International Law, https:// opil​.ouplaw​.co​m/# accessed 8 June 2023. Woodward B K, ‘The Role of International NGOs: An Introduction’ (2011) 19 (2) Willamette Journal of International Law and Dispute Resolution 203. Zacher M et al., ‘NGOs, IOs, and the ICC: Diagnosing and Framing Darfur’ (2014) 29 (1) Sociological Forum 29. Zappalà S, Human Rights in International Criminal Proceedings (OUP 2005). Zeegers K, International Criminal Tribunals and Human Rights Law: Adherence and Contextualization (T.M.C. Asser Press 2016).

9

NGOs as Amicus in Investor-State Arbitration Addressing Public Interest and Human Rights Issues Wasiq Dar1 and Gautam Mohanty2

9.1 Introduction12 Bilateral investment treaties (BITs) essentially reflect the protection mechanism extended towards foreign investors by a host state. When entering into BITs, facilitating the flow of investment has invariably been the main consideration for host states – particularly for developing nations. In this race of inviting more investors and investments by ensuring comprehensive care of the standards of protection provided to the foreign investors, issues like public interest and human rights considerations, in all likelihood, occupy a backseat in such BITs. International investment law jurisprudence frequently utilises terms such as “public interest”, “public purposes” and “public security” without attributing a definitive meaning to them.3 However, the aim of states in ensuring the incorporation of such clauses in BITs guarding public interest is to ensure ample regulatory freedom4 – thereby protecting their sovereignty. Notably, the relationship between public interest regulation and human rights is well underlined in cases involving compensation for breach of rights of the citizens of the host state. The integration of human rights within the ambit of public interest should not be viewed as advancing the objectives of the state but should be viewed from the perspective of fulfilling international

1 Dr. Wasiq Abass Dar is an Associate Professor and Assistant Director, Center for Alternative Dispute Resolution (CADR), at Jindal Global Law School, O.P. Jindal Global University, Sonipat, India. His ORCID number is 0000-0001-9791-6282. The author would like to thank Ms Jasleen Virk and Mr Shubham Choudhury, former students at Jindal Global Law School, for their research assistance. 2  Gautam Mohanty is currently a doctoral student at Kozminski University, Warsaw, Poland. He is also an advocate enrolled at the bar in India, Fellow at JGLS Center for Alternative Dispute Resolution (CADR) and an Assistant Professor (on leave) at Jindal Global Law School India (JGLS) and an arbitration consultant with Arbitrator Justice Deepak Verma, Former Judge of Supreme Court of India. His ORCID number is: 0000-0003-4903-8942. The author would like to thank Ms Rituparna Padhy and Mr Yasaschandra Devarakonda for their able research assistance. 3  Pedro J. Martinez-Fraga and C. Ryan Reetz, Public Purpose in International Law: Rethinking Regulatory Sovereignty in the Global Era (Cambridge University Press 2015) 126. 4 Ibid. DOI:  10.4324/9781003433460-13

228  Wasiq Dar and Gautam Mohanty obligations under international human rights conventions or international environment agreements. As observed by Schill,5 the protection and promotion of foreign direct investment (FDI) is mainly aimed at responding to public interest concerns of states, contrary to its perception of existing for the sole purpose of private investors. Therefore, a subtle distinction that can be drawn between public interest issues and human rights issues in international investment law is that human rights issues emanate from obligations imposed by international law whereas public interest issues are grounded in domestic law. The underlying reasons for the lack of focus on public interest and human rights considerations can be manifold, not excluding the fact that a host state, particularly a developing contracting party, aims to appease potential investors from a developed contracting party by assuring minimum possible regulatory interventions. Such a strategy, naturally, puts public interest and human rights concerns backstage. In the absence of specific provisions in BITs addressing the aforementioned concerns, it is argued that independent non-governmental organisations (NGOs) can play a vital role as amicus curiae to advocate for the cause in investor-state arbitrations. Of late, the relevance and significance of NGOs as amicus curiae in investor-state arbitrations has substantially increased, though there have been voices raising certain concerns as well. This chapter analyses public interest litigation vis-à-vis NGOs’ participation as amicus in investor-state arbitration. Notably, this chapter begins by examining why public interest concerns, especially human rights, are not assigned the desired importance in most BITs. Thereafter, the significance of representation of the “interests of the public” in the host state before investor-state arbitral tribunals is discussed while highlighting the importance of NGO participation in investor-state arbitrations. The chapter assesses the potential role that NGOs can play in representing “public interests” and “human rights” issues before the arbitral tribunals, through analysis of recent case studies. It also discusses the safeguards and measures that can be taken into account to address the criticisms that have been levelled against the permitting of amicus curiae interventions in investor-state arbitral proceedings. It is important to note that this chapter in its analysis does not extensively deal with the entirety of amicus curiae submissions in investor-state arbitration but is limited to instances where questions relating to human rights issues have been raised before tribunals while juxtaposing it with submissions by NGOs.6

5  Stephan Schill and Vladislav Djanic, ‘Wherefore Art Thou? Towards a Public Interest-Based Justification of International Investment Law’ (2018) 33 (1) ICSID Review – Foreign Investment Law Journal 29, 33. 6  Charles H. Brower II, ‘Structure, Legitimacy, and NAFTA’s Investment Chapter’ (2003) 36 (1) Vanderbilt Journal of Transnational Law 37. See also, Susan Franck, ‘The Legitimacy Crisis in Investment Treaty Arbitration: Privatising Public International Law through Inconsistent Decisions’ (2005) 73 (4) Fordham Law Review 1521.

NGOs as Amicus in Arbitration  229 9.2 Lack of Focus on Public Interest Issues, Particularly Human Rights, in Investment Treaties/Agreements The concerning lack of focus on public interest issues vis-à-vis human rights in investment treaties can be attributed to primarily three reasons: (1) lack of jurisdiction of the tribunal, (2) failure of the party raising the public interest/human rights dispute to identify a definitive standard of protection or substantive norm that could include the issue of public interest/human rights and (3) the parochial interpretation of international law to only BITs related principles by investment arbitration tribunals. An arbitral tribunal must have jurisdiction to hear a claim or counterclaim regarding human rights issue(s) raised by an investor or state. In most cases, the arbitral tribunals conclude that they do not have the jurisdiction to entertain a claim with respect to human rights under investment treaties. Many times, it is the very text of the relevant investment treaty that limits the jurisdiction of the tribunal. For example, in Biloune v. Ghana7 the contract limited the jurisdiction of the tribunal to only disputes “in respect of” an approved enterprise between the investor and the state. Thus, the matter of arbitrary detention of the Syrian investor by the host state security forces could not be heard by the tribunal as it lacked jurisdiction since it could only hear purely investment-related matters emanating from the treaty. The development of jurisprudence regarding adjudication of public interest and human rights issues in an investor-state arbitration can be first traced to the case of Mondev v. USA,8 where the arbitral tribunal had observed that human rights violations were not explicitly covered within the ambit of the jurisdiction of the tribunal. Similarly, the arbitral tribunals in subsequent cases such as Tecmed v. Mexico,9 Azurix v. Argentina,10 Siemens v. Argentina,11 Channel Tunnel v. France and UK12 and Sempra v. Argentina13 refused to indulge in the exercise of analysing certain provisions of international human rights instruments invoked by the parties. For human rights issues to be considered by an arbitral tribunal, the language of the treaty must be broad enough with respect to jurisdictional clauses. In Urbaser

 7  Biloune and Marine Drive Complex Ltd v. Ghana Investments Centre and the Government of Ghana, Award on Jurisdiction and Liability, UNCITRAL, 27 October 1989.   8 Mondev International Ltd v. United States of America, Award, Case No. ARB(AF)/99/2, International Centre for the Settlement of Investment Disputes, 11 October 2002.   9 Técnicas Medioambientales Tecmed, SA v. Mexico, Award, Case No. ARB(AF)/00/2, International Centre for the Settlement of Investment Disputes, 29 May 2003. 10 Azurix Corp v. Argentina, Award, Case No. ARB/01/12, International Centre for the Settlement of Investment Disputes, 14 July 2006. 11 Siemens AG v. Argentina, Award, Case No. ARB/02/08, International Centre for the Settlement of Investment Disputes, 6 February 2007. 12 Channel Tunnel Group v. Governments of the United Kingdom and France, Partial Arbitral Award, Case No. 2003-06, Permanent Court of Arbitration, 30 January 2007. 13 Sempra Energy International v. Argentina, Award, Case No. ARB/02/16, International Centre for the Settlement of Investment Disputes, 28 September 2007.

230  Wasiq Dar and Gautam Mohanty v. Argentina,14 the relevant BIT was drafted broadly, which allowed the tribunal to assume jurisdiction to hear the matter. Though in the aforementioned matter, the tribunal decided against the claim of Argentina alleging violation of their right of access to water by the investor, it had the jurisdiction to hear this matter and address the human rights issues and concerns. The obvious question that arises is, why is the language used in investment treaties of a limiting nature in the first place? It may be the case that, perhaps, the parties want to limit the treaty to purely investment or commercial aspects in order to appease potential investors and increase the scale of investments. It is not unheard of that, at times, the host state may even relax its standard of health, safety and environmental measures, labour rights, rights of indigenous people, etc. to invite more investments15 – which, some may argue, is a deplorable practice. One should not be surprised if such practices get even more popular since the COVID-19 pandemic, as low and middle-income countries compete for limited foreign direct investment (FDI), which has reduced tremendously due to the pandemic.16 Hence, there is a possibility that countries are and will be willing to overlook some public interest concerns, especially those directly affecting human rights, for increased investments.17 However, if it is established that the tribunal has jurisdiction to hear the matter which concerns a public interest or a human rights issue, the investor or state must also “identify a substantive norm, standard of protection, or other obligation falling within the law applicable to the dispute”.18 The language of Article 42 (1) of the ICSID Convention demonstrates that tribunals in investment arbitration are bestowed with wide discretion to determine applicable law. Article 42 (1) reads: in the absence of party agreement on the applicable law, the tribunal “shall apply the law of the Contracting state party to the dispute (including its rules on the conflict of laws) and such rules of international law as may be applicable”.

14 Urbaser SA and Consorcio de Aguas Bilbao Bizkaia, Bilbao Biskaia Ur Partzuergoa v. The Argentine Republic, Award, Case No. ARB/07/26, International Centre for the Settlement of Investment Disputes, 8 December 2016, paras 1217 et seq. 15 Agreement between the Slovak Republic and the Islamic Republic of Iran for the Promotion and Reciprocal Protection of Investments, 19 January 2016, Articles 2 and 10. See also, Dinah Shelton, ‘The Participation of Nongovernmental Organisations in International Judicial Proceedings’ (1994) 88 (4) The American Journal of International Law 611, 615. 16 United Nations Conference on Trade and Development, World Investment Report 2020: International Production Beyond the Pandemic accessed 11 December 2022. 17 Nicholas J. Diamond and Kabir A.N. Duggal, ‘2020 in Review: The Pandemic, Investment Treaty Arbitration, and Human Rights’ (Kluwer Arbitration Blog, 23 January 2021) accessed 11 December 2022. 18 Crina Baltag, ‘Human Rights and Environmental Disputes in International Arbitration’ (Kluwer Arbitration Blog, 24 July 2018) accessed 11 December 2022.

NGOs as Amicus in Arbitration  231 When BITs include “principles of international law” in the list of sources of law applicable, the pertinent question arises whether these principles can include human rights issues. In Von Pezold v. Zimbabwe,19 the tribunal limited “international law” by holding that it only includes laws relevant to BIT such as the fair and equitable treatment (FET) principle. The FET principle, which finds itself enshrined in several BITs, indicates the international standard according to which the host state must treat the property of investors. Pertinently, under the FET principle, the standard of treatment by states must be similar to the treatment meted out by states to its own nationals – where the same is at least at par with the relevant minimum international standards.20 Therefore, the amicus curiae submissions regarding indigenous rights were not discussed by the tribunal due to the arguably narrow scope of international law that is relevant to investment treaties. However, this view of the tribunal in the opinion of the authors is a lopsided viewpoint primarily because “international law” cannot be demarcated between commercial matters, contractual principles and human rights. International law is quite broad in scope, and when the tribunal has the jurisdiction to hear a human rights issue in the context of an investment, then the tribunal should decide on such an issue instead of limiting the scope of international law. Failure to do so, as argued, could very well lead to annulment of the tribunal’s decision.21 There is jurisprudence that suggests that arbitral tribunals have addressed human rights issues without limiting international law to only BIT-related principles. For example, in Al Warraq v. Indonesia,22 the tribunal addressed due process violations through the FET principle enshrined under the International Covenant on Civil and Political Rights (ICCPR). Further, in some cases, the state has argued that the compensation claimed by the investor is inadmissible or subject to reduction in light of non-compliance by the investor with respect to relevant human rights law of that state. In Cooper Mesa Mining v. Ecuador,23 the claimant used armed men to force civilians, which was noted by the tribunal and led to the conclusion that the injury caused to the claimant was attributed by himself to an amount of at least 30%. The tribunal suggested that for the protection of human rights in investor-state arbitrations we need to have (a) a broad language in the investment treaties that ensures jurisdiction of the tribunal vis-à-vis such issues and (b) a binding international

19 Bernhard von Pezold and Others v. Republic of Zimbabwe, Procedural Order No. 2, Case No. ARB/10/15, International Centre for the Settlement of Investment Disputes, 26 June 2012, paras 39, 57. 20  Swisslion DOO Skopje v. The Former Yugoslav Republic of Macedonia, Award, Case No. ARB/09/16, International Centre for the Settlement of Investment Disputes, 6 July 2012, para 273. 21 Bruno Simma, ‘Foreign Investment Arbitration: A Place for Human Rights?’ (2011) 60 (3) International and Comparative Law Quarterly 573, 591. 22  HTM Al Warraq v. Republic of Indonesia, Final Award, UNCITRAL, 15 December 2016, para 621. 23  Copper Mesa Mining Corporation v. Republic of Ecuador, Award, Case 2012-2, Permanent Court of Arbitration, 15 March 2016.

232  Wasiq Dar and Gautam Mohanty legal framework through which corporate conduct in violation of human rights can be addressed.24 Notably, Urbaser v. Argentina,25 as mentioned herein, confirmed the view that international human rights obligations amount to a general principle of international law which invariably implies that in principle such obligations are applicable to investor-state disputes.26 Further, in Tecmed v. Mexico,27 one could witness that the tribunal deciding the matter extensively placed reliance on numerous European Court of Human Rights (ECtHR) and Inter-American Court of Human Rights (IACtHR)28 decisions to formulate a decisive view regarding addressing human rights issues in international investment-related disputes.29 It is also pertinent to note that as a matter of general practice, host states avoid raising human rights issues before arbitral tribunals out of the apprehension that it will discourage future or potential investments from foreign investors or drive down the amount of investments.30 Also, it has been recognised that states may not want to admit that they initially were implicated in projects that had negative human rights consequences. Nor might states wish to admit before an international tribunal that, if they had not taken action, they would not be living up to international minimum standards.31 A perusal of the recent investment agreements concluded indicates the increasing general awareness of countries in acknowledging the aspect of human rights issues in future disputes. For example, six international investment agreements signed in 2020 incorporate “operative provisions” addressing human rights issues. However, these provisions firstly, do not impose any specific obligations on multinational corporations (MNCs) and those which do, have fallen prey to “aspirational language”,32 as observed in Article 12.1 and 12.2 of the Brazil-India Investment 24 Ibid. 25  Urbaser SA and Consorcio de Aguas Bilbao Bizkaia, Bilbao Biskaia Ur Partzuergoa v. The Argentine Republic, Award, Case No. ARB/07/26, International Centre for the Settlement of Investment Disputes, 8 December 2016, para 1209. 26  Ibid.; Fabio Giuseppe Santacroce, ‘The Applicability of Human Rights Law in International Investment Disputes’ (2019) 34 (1) ICSID Review – Foreign Investment Law Journal 136, 142. 27  Técnicas Medioambientales Tecmed, SA v. Mexico, Award, Case No. ARB(AF)/00/2, International Centre for the Settlement of Investment Disputes, 29 May 2003, paras 116, 122. 28 Ivcher-Bronstein v. Peru, Merits, Reparations and Costs, Judgment, Inter-American Court of Human Rights, 6 February 2001; James v United Kingdom App no 8793/79 (ECHR, 21 February 1986). 29 Técnicas Medioambientales Tecmed, SA v. Mexico, Award, Case No. ARB(AF)/00/2, International Centre for the Settlement of Investment Disputes, 29 May 2003, paras 116, 122. 30  See e.g. Dinah Shelton, ‘The Participation of Nongovernmental Organisations in International Judicial Proceedings’ (1994) 88 (4) The American Journal of International Law 611. 31 Benjamin Miller, Jennifer Liu, Ramin Wright and Jenny Yoo, Guide for Potential Amici in International Investment Arbitration (Centre for International Environment Law, January 2014) accessed 11 December 2022. 32  Mondev International Ltd v. United States of America, Award, Case No. ARB(AF)/99/2, International Centre for the Settlement of Investment Disputes, 11 October 2002.

NGOs as Amicus in Arbitration  233 Cooperation and Facilitation Treaty that imposes corporate social responsibility on investors, do not suggest or convey the possible repercussions in case of default. Therefore, in the absence of a clear policy in most of the BITs/MITs with respect to the consequences of violation and abuse of public interest and human rights, it becomes imperative to identify solutions for the same in the investment arbitration process and also to highlight the need and importance of a voice that represents the public interest. 9.3 Exploring the Rationale of Allowing NGO Participation in Investor-State Arbitration The impact of commercial arbitration in moulding the current form of investorstate arbitration is undisputed. While the features of commercial arbitration have transitioned to investment arbitration, they must be addressed with caution and adequately contextualised to suit the requirements of investment arbitration. Investor-state disputes often involve public interest issues that affect a wide spectrum of stakeholders and thus mandate involvement of civil society groups, such as NGOs, in order to gauge the broad policy implications of the potential award to be rendered by an arbitral tribunal. The imperative need to involve NGOs in investment disputes involving public interest is neatly highlighted in a publication by the International Institute for Sustainable Development (IISD) which states that disputes of the aforementioned nature compromise the general interest of the public while enhancing private rights.33 Moreover, the participation of NGOs is often justified on grounds of enhancing the transparency of proceedings and increasing the acceptability of the arbitral award by the public at large34 as NGOs are well situated and plugged to ground reality to offer local expertise without any encumbrances.35 The participation of NGOs in investment disputes, more generally, aids in the crea-

33 International Institute for Sustainable Development and WWF, Private Rights, Public Problems: A Guide to NAFTA’s Controversial Chapter on Investor Rights (International Institute for Sustainable Development 2001) accessed 11 December 2022. See also Crina Baltag, ‘Chapter 6: Access to Justice in Investment Arbitration and Non-disputing Party Participation’ in Leonardo V.P. de Oliveira and Sara Hourani (eds), Access to Justice in Arbitration: Concept, Context and Practice (Kluwer Law International 2020) 117; Gary Born and Stephanie Forrest, ‘Amicus Curiae Participation in Investment Arbitration’ (2019) 34 (3) ICSID Review – Foreign Investment Law Journal 626, 644; Tomoko Ishikawa, ‘Third Party Participation in Investment Treaty Arbitration’ (2010) 59 (2) International and Comparative Law Quarterly 373, 391. 34 Lucas Bastin, ‘The Amicus Curiae in Investor-State Arbitration’ (2012) 1 (3) Cambridge Journal of International and Comparative Law 208, 223; Fernando Dias Simoes, ‘Myopic Amici? The Participation of Non-Disputing Parties in ICSID Arbitration’ (2017) 42 (3) North Carolina Journal of International Law 791, 797–799. See also, Philip Morris Brand Sàrl (Switzerland), Philip Morris Products SA (Switzerland) and Abal Hermanos SA (Uruguay) v. Oriental Republic of Uruguay, Procedural Order No. 3, Case No. ARB/10/7, International Centre for the Settlement of Investment Disputes, 17 February 2015, and Procedural Order No. 4, 24 March 2015, paras 26–28. 35 Kirsten Mikadze, ‘Uninvited Guests: NGOs, Amicus Curiae Briefs, and the Environment in Investor-State Dispute Settlement’ (2016) 12 Journal of International Law and International Relations 35.

234  Wasiq Dar and Gautam Mohanty tion of international norms and may be perceived as furthering the implementation of international environmental and human rights norms.36 Further, it can be argued that the state party in dispute should not be the sole representative of human rights issues before the tribunal especially given that it involves an intricate understanding of human rights issues and their potential impact on the general public. The oddity that BITs as well as international investment arbitration do not devote much attention to public interest issues is noteworthy. As suggested by Gus Van Harten, investor-state arbitration exhibits a great degree of similarity with public law adjudication such as judicial control over the exercise of public authority and remedies for abuse of such authority in the form of compensatory damages.37 Thus, it is strange when a dispute resolution system which is strongly premised on public law adjudication systems does not focus on public interest. Succinctly stated, the public interest aspect of investment arbitration is well highlighted by the joint statement issued by the Center for International Environmental Law (CIEL) and the IISD.38 The joint statement states and recognises that the distinct and unique nature of investment arbitrations as compared to commercial arbitrations results in the significant involvement of public interest. Further, the joint statement in support of its aforementioned observations reasons that the presence of a state as a party to the arbitration has implications impacting the general public of the state as compared to a traditional commercial arbitration that might not be subject to basic requirements of transparency and good governance. In the same context, it is to be noted that in case of an adverse award, the state in investor-state arbitrations often discharges its liability by utilising public money which invariably has a marginal impact on the state’s budget.39 The public interest involved in investor-state arbitration is well underlined in cases where regulatory measures adopted by states as part of public policy are often challenged by investors.40 In such cases, the domestic decision-making powers of a state are challenged in an international tribunal thereby highlighting the significance of public interest. 36 Alan Boyle and Christine Chinkin, The Making of International Law (Oxford University Press 2007) 66–90; Menno T. Kamminga, ‘The Evolving Status of NGOs under International Law: A Threat to the Inter-State System?’ in Philip Alston (ed), Non-State Actors and Human Rights (Oxford University Press 2005) 101. 37 Stephan W. Schill, ‘International Investment Law and Comparative Public Law – An Introduction’ in Stephan W. Schill (ed), International Investment Law and Comparative Public Law (Oxford University Press 2010). 38 The IISD submitted amicus briefs in Methanex Corporation v United States of America, UNCITRAL; Biwater Gauff (Tanzania) Ltd v. United Republic of Tanzania, Case No. ARB/05/22, International Centre for the Settlement of Investment Disputes, and Suez, Sociedad General de Aguas de Barcelona, SA and Vivendi Universal, SA v. Argentine Republic, Case No. ARB/03/19, International Centre for the Settlement of Investment Disputes. 39 Kirsten Mikadze, ‘Uninvited Guests: NGOs, Amicus Curiae Briefs, and the Environment in Investor-State Dispute Settlement’ (2016) 12 Journal of International Law and International Relations 35. 40 Lucas Bastin, ‘The Amicus Curiae in Investor-State Arbitration’ (2012) 1 (3) Cambridge Journal of International and Comparative Law 208, 222; Gary Born and Stephanie Forrest, ‘Amicus Curiae Participation in Investment Arbitration’ (2019) 34 (3) ICSID Review – Foreign Investment Law Journal 626, 652.

NGOs as Amicus in Arbitration  235 According to ICSID Arbitration Rule 37 (2), the arbitral tribunal shall consider whether the non-party submission (a) “would assist the tribunal in the determination of a factual or legal issue – by bringing a perspective, particular knowledge or insight that is different from that of the disputing parties”, (b) “would address a matter within the scope of the dispute” and (c) would reflect “a significant interest in the proceeding” by the non-party itself. NGOs as amicus curiae represent the public interest in order to provide the tribunal with information other than that presented by the parties involved in the dispute. NGOs are in a strong position to provide a holistic picture of the entire issue at stake before the investment tribunals through amicus briefs. Also, NGOs are uniquely placed to provide local expertise on the potential impacts of the decision of the tribunal. It is not to say that the host state is entirely incapable of representing the public interest or that the NGOs are always better positioned than the host state to represent the public interest in investment arbitrations. However, it is safe to assume that NGOs are better “tapped” into local concerns and realities and may, without any political encumbrances, be able to provide a complementary perspective that strengthens a host state’s argument before the tribunal. The trickle-down effect of decisions rendered by investment tribunals uniquely positions NGOs to ensure that the interests of the people impacted are well represented before the tribunal, especially in a case where the state’s institutions may be weak or nonexistent. In fact, the participation of NGOs as amicus in the dispute hinges upon the determination of the fact by the tribunals as to whether the NGO will provide new insight into the dispute and must be different in content and perspective in comparison to the information already provided by the parties.41 As a case in point, in Apotex,42 the Tribunal observed that in issues involving public interest the requirement of the amicus to provide a different expertise or perspective must be construed broadly so as to provide access to the “widest possible range of views”.43 Be that as it may, there appears to be no consistent approach adopted by tribunals in determining the ability of an amicus to contribute materially to the dispute. It was observed in the Statement of the NAFTA Free Trade Commission44 that NGOs are supposed to unravel the issue (legal or factual) through expert knowledge, insight or bringing a new perspective to the table which is different from the arguments presented by the parties in order to assist the tribunals. 41 Gary Born and Stephanie Forrest, ‘Amicus Curiae Participation in Investment Arbitration’ (2019) 34 (3) ICSID Review – Foreign Investment Law Journal 626. 42 Apotex Holdings Inc v. United States of America, Procedural Order No. 2 on the Participation of a Non-Disputing Party, Case No. ARB(AF)/12/1, International Centre for the Settlement of Investment Disputes, 11 October 2011, para 10; and Procedural Order on the Participation of the Applicant, BNM, as a Non-Disputing Party, 4 March 2013, para 25. 43 Apotex Holdings Inc v. United States of America, Procedural Order No. 2 on the Participation of a Non-Disputing Party, Case No. ARB(AF)/12/1, International Centre for the Settlement of Investment Disputes, 11 October 2011, para 21. 44 Free Trade Commission, Statement of the Free Trade Commission on Non-Disputing Party Participation (October 2003) para B.6(a) accessed 11 December 2022.

236  Wasiq Dar and Gautam Mohanty Similarly, the tribunal in Suez v. Argentina,45 where award was rendered before the amendment in ICSID arbitration rules explicitly allowed amicus curiae submissions,46 held that “NGOs who wished to submit amicus curiae briefs needed to satisfy the tribunal that they had the necessary expertise, experience, and independence to be of assistance in the case”.47 In the Biwater Gauff48 case, the tribunal while adjudicating on the admissibility of amicus curiae briefs observed that it “was mandated to resolve claims as between BGT and the Republic, but also recognised that this arbitration raised a number of issues of concern to the wider community in Tanzania”.49 To that extent, the tribunal also relied on the dictum of the Methanex Corporation v. United States of America50 wherein the tribunal had acknowledged the presence of public interest (“there is an undoubtedly public interest in this arbitration”) and also concluded that it had the power to accept amicus curiae briefs. It is assumed that states will further arguments with respect to “public interest” in the dispute. Therefore, when NGOs approach as amicus to raise a public interest issue, the tribunal has to ascertain whether what the NGOs are bringing to the table is “extra” from what the state would argue and has a close connection between public interest and the dispute at hand. And even in instances where states do not raise relevant public interest concerns, inputs from NGOs as amicus can play a vital role in deciding the case at hand. Arbitral tribunals, generally, have three motivations, namely (1) fairness to the parties, (2) legitimacy of the institution and (3) adherence to the relevant law, which can be fulfilled through the inclusion of amicus that raise public interest concerns before the tribunal. In the aforementioned Suez v. Argentina, the tribunal permitted the filing of an amicus brief on the basis that the dispute had the potential to affect “basic public services” to millions of people. In this case, the concern for the public interest was severe. In investor-state arbitrations, only the states’ or investors’ interests are represented, which more often than not excludes the public or human rights interests on the ground. Further, these proceedings may be confidential. In order to remedy this issue, NGOs represent the “broader” interest of the public, which may be related to human rights or environmental issues. before the tribunals. NGO participation 45 Suez, Sociedad General de Aguas de Barcelona SA and Vivendi Universal SA v. Argentine Republic, Order in Response to a Petition for Participation as Amicus Curiae, Case No ARB/03/19, International Centre for the Settlement of Investment Disputes, 19 May 2005. 46 International Centre for the Settlement of Investment Disputes, ICSID Convention, Regulations and Rules: Rules of Procedure for Arbitration Proceedings, 2006, ch 4, r 37 (2). 47 Eric de Brabandere, ‘NGOs and the “Public Interest”: The Legality and Rationale of Amicus Curiae Interventions in International Economic and Investment Disputes’ (2011) 12 (1) Chicago Journal of International Law 85, 113. 48 Biwater Gauff (Tanzania) Ltd v. United Republic of Tanzania, Award, Case No. ARB/05/22, International Centre for the Settlement of Investment Disputes, 24 July 2008, para 359. 49 Ibid., para 358. 50  Methanex Corporation v. United States of America, Final Award, UNCITRAL, 3 August 2005, para 141.

NGOs as Amicus in Arbitration  237 benefits the tribunal as well as greater “public interest” since their participation increases the legitimacy, transparency and openness of international investment arbitration and adds credibility to the overall decision-making process.51 One of the essential concerns with respect to the legitimacy of investment arbitrations or lack of it arises from the fact that such arbitrations have the potential of invalidating the host-state enforced “public interest regulations” – which are basically regulations that come from democratically elected governments, ignoring or without taking on board the actual “public interest” as participation of the relevant stakeholders is substantially limited.52 Participation of NGOs takes care of this concern in a sense that the inputs or issues of the “public” get a voice which helps in giving legitimacy and credibility to investment arbitration as a dispute-resolution process.53 Similarly, on account of transparency and openness, the participation of NGOs as amicus creates an environment that helps in generating awareness about the issues and proceedings among the relevant stakeholders.54 This, in addition to having a positive impact on the decision-making by the arbitral tribunal, can also be helpful in the long run as it generates debate and public dialogue that can shape the course of future relevant legislative and policy interventions.55 9.4 NGOs as Amicus Curiae in the International Investment Arbitration: A Preview of Existing Practice As already noted, host states might be hesitant to enforce or insist on strict adherence to existing norms for fear of portraying themselves as inhospitable to foreign investment. In such a scenario, consequently, civil society groups and particularly NGOs become pivotal actors in the process of not only highlighting issues relating to the public interest and human rights but also driving change in the investor arbitration framework. The hesitancy of investment tribunals to address human rights issues has also been elaborated upon in the preceding paragraphs. Tribunals have shown little or no initiative to refer to human rights jurisprudence, even when adjudicating disputes in which human rights issues form a central focal point of the substantive issue. This reluctance has been explained by some commentators to be deeply rooted in the cultural orientation of international arbitration, which is

51 Ruth Mackenzie et al., The Manual on International Courts and Tribunals (2nd edn, Oxford University Press 2010) paras 29–31. See also, Epaminontas Triantafilou, ‘Amicus Submissions in InvestorState Arbitration after Suez v. Argentina’ (2008) 24 (4) Arbitration International 571, 575. 52  Sandra L. Caruba, ‘Resolving International Investment Disputes in a Globalised World’ (2007) 13 New Zealand Business Law Quarterly 128, 137. 53  Dinah Shelton, ‘The Participation of Nongovernmental Organisations in International Judicial Proceedings’ (1994) 88 (4) The American Journal of International Law 611, 809. 54 Epaminontas Triantafilou, ‘Amicus Submissions in Investor-State Arbitration after Suez v. Argentina’ (2008) 24 (4) Arbitration International 571. 55  Camilla Graham, A “How To” Guide to Amicus Curiae and International Investment Arbitration (Advocates for International Development, 2012) 6–10 cited in Katia Fach Gomez, ‘Rethinking the Role of Amicus Curiae in International Investment Arbitration: How to Draw the Line Favorably for the Public Interest’ (2012) 35 (2) Fordham International Law Journal 544.

238  Wasiq Dar and Gautam Mohanty commercially oriented.56 Perhaps the reluctance can be understood as an indicator of the fact that arbitrators more often than not tend to be experts in commercial law and do not necessarily have the required expertise in human rights law.57 In the same context, Schneidermann has argued that: in so far as it is responsive to its own shortcomings[,] those responses will be determined by the regime's own principal players (lawyers, arbitrators, academics). These actors will respond in accordance with the regime’s own embedded preferences employing the regime’s own terminology and typically not according to the logic of competing sub-systems, such as international environmental or human rights law.58 The legitimacy of NGOs, per se, has been often questioned. It is not always the case that local interests are effectively represented by international NGOs who are disconnected from the prevailing ground situation. As observed by B.S. Chimni, multinational NGOs based out of the “developed” world have long come under scrutiny for imposing solutions and approaches on developing countries and communities that poorly reflect local interests and cultures.59 Notwithstanding the foregoing, in general practice, the involvement of NGOs in investment arbitration essentially forces an interaction between the investment regime and human rights concerns, thereby ensuring that human rights concerns are addressed by investment tribunals. Therefore, it should be safe to argue that interventions by NGOs have the potential to anchor “the emergence … of the idea of civil society” in the world of arbitration.60 In Methanex v. United States,61 the investor-state dispute framework witnessed a watershed moment when the first amicus curiae applications under NAFTA by an NGO were allowed by the tribunal. Subsequently, courtesy of the aforesaid seminal decision, it has become a generally accepted practice of NAFTA tribunals to accept submissions from NGOs of various kinds. A cursory glance over the ICSID practice of allowing amicus curiae submissions indicates an inconsistency where in some cases amicus applications have been allowed and in some cases amicus curiae applications have been rejected.62 There is a considerable amount 56  Kyla Tienhaara, The Expropriation of Environmental Governance: Protecting Foreign Investors at the Expense of Public Policy (Cambridge University Press 2009). 57  Ibid., 206. 58 David Schneiderman, ‘Legitimacy and Reflexivity in International Investment Arbitration’ (2011) 2 (2) Journal of International Dispute Settlement 471. 59 B.S. Chimni, ‘International Institutions Today: An Imperial Global State in the Making’ (2004) 15 (1) European Journal of International Law 1. 60  Francesco Francioni, ‘Access to Justice, Denial of Justice, and International Investment Law’ in Pierre-Marrie Dupuy, Francesco Francioni and Ernst-Ulrich Petersmann (eds), Human Rights in International Investment Law and Arbitration (Oxford University Press 2009) 63, 76. 61 Methanex Corporation v. United States of America, Final Award, UNCITRAL, 3 August 2005. 62  Chevron Corporation and Texaco Petroleum Corporation v. The Republic of Ecuador, Case 200923, Permanent Court of Arbitration; Aguas del Tunari, SA v. Republic of Bolivia, Decision on

NGOs as Amicus in Arbitration  239 of jurisprudence already on amicus curiae briefs in investor-state arbitrations. This chapter does not extensively deal with the entirety of amicus curiae submission in investor-state arbitration but is limited to instances where questions relating to human rights issues have been raised before tribunals while juxtaposing it with submissions by NGOs.63 Table 9.1 provides an overview of all ICSID-concluded cases that involved NGOs acting as amici curiae during the period of 2000 to 2020. From these cases, we choose to focus on two specific cases that represent the issues that NGOs face. 9.4.1  Pacific Rim Cayman LLC v. Republic of El Salvador

In Pacific Rim Cayman LLC v. Republic of El Salvador,64 an American company initiated a claim against the Republic of El Salvador under the Dominican Republic–United States Central American Free Trade Agreement (CAFTA). Notably, the claims were based on a list of grounds under both CAFTA and Salvadoran investment law, including unlawful expropriation, lack of protection of investment by El Salvador, denial of most-favoured nation (MFN) status and corresponding national treatment. Thereafter, numerous NGOs collectively applied for leave65 from the tribunal to submit an amicus curiae brief as an intervener, which was ultimately allowed by the tribunal.66 In the brief submitted to the tribunal, the amici’s submissions mainly aimed at highlighting the potential human rights issues and environmental impacts of the dispute by emphasising that, “it is their land,

Respondent’s Objections to Jurisdiction, Case No. ARB/02/3, International Centre for the Settlement of Investment Disputes, 21 October 2005; Bernhard von Pezold v. Republic of Zimbabwe, Award, Case No. ARB/10/15, International Centre for the Settlement of Investment Disputes, 28 July 2015; Compania de Aguas del Aconquija SA and Vivendi Universal SA v. Argentine Republic, Award, Case No. ARB/97/3, International Centre for the Settlement of Investment Disputes, 20 August 2007. 63  Charles H. Brower II, ‘Structure, Legitimacy, and NAFTA’s Investment Chapter’ (2003) 36 (1) Vanderbilt Journal of Transnational Law 37. See also, Susan Franck, ‘The Legitimacy Crisis in Investment Treaty Arbitration: Privatising Public International Law through Inconsistent Decisions’ (2005) 73 (4) Fordham Law Review 1521. 64 Pac Rim Cayman LLC v. Republic of El Salvador, Case No ARB/09/12, International Centre for the Settlement of Investment Disputes. 65 The amicus curiae were organisation members of the Mesa Nacional Frente a la Minería Metálica de El Salvador (the El Salvador National Roundtable on Mining) (“La Mesa”), a coalition of community organisations, research institutes and environmental, human rights and faith-based nonprofit organisations that collectively aimed to improve public policy dialogue concerning metals mining in El Salvador. 66  Pac Rim Cayman LLC v. Republic of El Salvador, Application for Permission to Proceed as Amici Curiae, Case No. ARB/09/12, International Centre for the Settlement of Investment Disputes, 2 March 2011. The consortium, Mesa Nacional Frente a la Minería Metálica de El Salvador, was comprised of a mix of organisations whose activities encompass a range of issues, including development, human rights, environmental protection, poverty, civic participation and community advocacy. The materials themselves were drafted and submitted by the Center for International Environmental Law.

Pac Rim Cayman LLC v. Republic of El Salvador, ICSID Case No. ARB/09/12 [2009]d

Granted for submissions on jurisdictional issues

Denied Apotex Holdings Inc. and Apotex Inc. v. United States of America, ICSID Case No. ARB(AF)/12/1 [2012]c

Winning Party

Submissions and Bear Creek Mining Complementary Corporation Respondent arguments (paras 217–256) No Vivendi

Whether Referred to in the Final Award

(1) Asociación Civil por la Igualdad y la Justicia (ACIJ) (2) Centro de Estudios Legales y Sociales (CELS) (3) Center for International Environmental Law (CIEL) (4) Consumidores Libres Cooperativa Ltda. de Provisión de Servicios de Acción Comunitaria (5) Unión de Usuarios y Consumidores Study Center for Sustainable – United States of Finance of the Business America Neatness Magnanimity BNM srl The Center for International Only to indicate tribunal’s Republic of El Environmental Law (CIEL) refusal to rely on the Salvador submissions (paras 3.28–3.30) (Continued)

The Association of Human Rights and Environment of Puno

Granted

Bear Creek Mining Corporation v. Republic of Peru, a, ICSID Case No. ARB/14/21 [2017]

Granted Suez, Sociedad General de Aguas de Barcelona, S.A. and Vivendi Universal S.A. (formerly Aguas Argentinas, S.A., Suez, Sociedad General de Aguas de Barcelona, S.A. and Vivendi Universal, S.A.) v. Argentine Republic, ICSID Case No. ARB/03/19 [2015]b

Name of Amicus (NGO)

Permission to Make Amicus Submissions

Case Name

Table 9.1 ICSID-concluded cases that involved NGOs as amici curiae (2000–2020)

240  Wasiq Dar and Gautam Mohanty

Permission to Make Amicus Submissions

Whether Referred to in the Final Award

Winning Party

(1) The Centre for Applied No Discontinued Legal Studies (CALS) (2) The Center for International Environmental Law (CIEL) (3) The International Centre for the Legal Protection of Human Rights (INTERIGHTS) (4) The Legal Resources Centre (LRC) (1) The Lawyers’ Procedural History (paras Merits – Biwater Environmental Action Team 57–68) Damages – Tanzania (2) The Legal and Human Amicus Brief (paras (liability found Rights Centre 356–369) but no damages (3) The Tanzania Gender Amicus Submissions awarded) Networking Programme (paras 370–391) (4) The Center for International Relevance as Tribunal Environmental Law (CIEL) determines (para 392) (5) The International Institute for Sustainable Development (IISD)

Name of Amicus (NGO)

b

a

  Bear Creek Mining Corporation v. Republic of Peru, Case No. ARB/14/21, International Centre for the Settlement of Investment Disputes.   Suez, Sociedad General de Aguas de Barcelona, S.A. and Vivendi Universal S.A. (formerly Aguas Argentinas, S.A., Suez, Sociedad General de Aguas de Barcelona, S.A. and Vivendi Universal, S.A.) v. Argentine Republic, Case No. ARB/03/19, International Centre for the Settlement of Investment Disputes. c   Apotex Holdings Inc. and Apotex Inc. v. United States of America, Procedural Order on the Participation of the Applicant, BNM, as a Non-Disputing Party, Case No. ARB(AF)/12/1, International Centre for the Settlement of Investment Disputes, 4 March 2023 accessed 11 December 2022. d  Pac Rim Cayman LLC v. Republic of El Salvador, Procedural Order No. 8, Case No. ARB/09/12, International Centre for the Settlement of Investment Disputes, 23 March 2011 accessed 11 December 2022. e   Piero Foresti, Laura de Carli & Others v. The Republic of South Africa, Case No. ARB(AF)/07/01, International Centre for the Settlement of Investment Disputes. f  Biwater Gauff (Tanzania) Ltd. v. United Republic of Tanzania, Case No. ARB/05/22, International Centre for the Settlement of Investment Disputes.

Biwater Gauff (Tanzania) Ltd. v. United Granted Republic of Tanzania, ICSID Case No. ARB/05/22 [2005]f

Piero Foresti, Laura de Carli and Others Granted v. The Republic of South Africa, ICSID Case No. ARB(AF)/07/01 [2007]e

Case Name

Table 9.1 (Continued)

NGOs as Amicus in Arbitration  241

242  Wasiq Dar and Gautam Mohanty their livelihoods, their well-being and fundamental rights that are at stake here”.67 With regard to the importance of the submissions being made by the amici, it was submitted that as the Claimant’s claim was deeply intertwined with the social and political change in El Salvador, any decision on the raised claim would have an enormous impact on the communities that are represented by the amici. Further, in relation to its submissions concerning the violation of human rights, the amicus argued that the principal human rights, which include, inter alia, the right to health and the right to live in a healthy environment, which are directly affected by extractive industries, must be considered. Pertinently, the tribunal rejected the submissions of the amici on the grounds that the parties had not provided their joint consent for allowing the amici to access the evidence in the matter including attending the hearing and also that the tribunal was under no obligation to specifically address the case advanced by the amici in the context of the arbitration. It emanates from this that even when NGOs demonstrate certain uniqueness about themselves, tribunals have generally ignored such submissions. As observed by Blackaby and Richard, “despite tribunals professed concern with taking wider interests into account in the decision-making process, past practice shows that once amicus curiae briefs are submitted, tribunals rarely refer to them”.68 The arbitral tribunal’s engagement with the amicus brief which provided an informed perspective of the issue does not, barring a few paragraphs, even get mentioned. The method adopted by tribunals in ignoring the submission of the NGOs can be best described as timid. In fact, on a comparative note, the reluctance of arbitral tribunals to engage with amicus briefs is aligned with the ICJ advisory practice as the Court does not always acknowledge acceptance of non-state submissions. Moreover, “it is rare for the ICJ to allow international organisations other than the one that requested the opinion to participate in advisory proceedings”.69 Nonetheless, Moritz Renner states that the very fact that amicus submissions were allowed to be taken on record in the first place indicates “legal-political re-embedding of market processes”.70

67  Pac Rim Cayman LLC v. Republic of El Salvador, Submission of Amicus Curiae Brief by the Centre for International Environmental Law, Case No ARB/09/12, International Centre for the Settlement of Investment Disputes, 20 May 2011. 68 Nigel Blackaby and Caroline Richard, ‘Amicus Curiae: A Panacea for Legitimacy in Investment Arbitration?’ in Michael Waibel et al. (eds), The Backlash Against Investment Arbitration (Wolters Kluwer 2010) 31. 69 International Court of Justice, ‘How the Court Works’ accessed 11 December 2022. 70  Moritz Renner, ‘The Dialectics of Transnational Economic Constitutionalism’ in Christian Joerges and Josef Falke (eds), Karl Polanyi, Globalisation, and the Potential of Law in Transnational Markets (Hart Publishing 2011) 435–436.

NGOs as Amicus in Arbitration  243 9.4.2  Bear Creek Mining v. Peru71

This case involved a Canadian company that discovered significant silver deposits in the Santa Ana mine in Peru in 2004. By 2011, the company had raised adequate finance to develop the site for the extraction of silver. However, the development of the mine, contrary to what was purported by the company, faced significant local opposition including violent protests. The local opposition raised environmental concerns, arguing that the mining activities were polluting nearby land and a lake. Pursuant to elections, the newly elected government of Peru revoked the mining authorisation granted to the Canadian company; aggrieved by the same, the company filed a case with ICSID. The tribunal, in this case, received three applications to file an amicus submission: (1) from Canada (the home state of the company), (2) a joint submission containing human rights concerns submitted by DHUMA (Association of Human Rights and Environment of Puno, Peru) and (3) from Mr Carlos Lopez (a Peruvian lawyer, Senior Legal Adviser to the International Commission of Jurists in Geneva, Switzerland).72 The arguments advanced by the amici can be best summed up as: (1) failure of Bear Creek to engage with the local communities and identify the risks associated with the operations and (2) failure of Bear Creek to obtain the social license to operate its project.73 However, the amicus applications appear to have had no impact on the tribunal’s decision-making process as the case was ultimately decided in favour of the company. Notwithstanding this, the partial dissenting opinion of Professor Philippe Sands (QC) has directly engaged with the amicus briefs to support his conclusion on the issue that the claimant had failed to engage in proper community relations.74 9.4.3  Foresti v. South Africa75

In this case, a group of investors claimed that South Africa withdrew their mining rights by enacting human rights legislation without providing adequate compensation. Two applications for submitting an amicus brief were submitted by four NGOs and the International Commission of Jurists.76 Surprisingly, although the applications were granted, the case was discontinued before a final award.77 Hence,

71 Bear Creek Mining Corporation v. Republic of Peru, Case No. ARB/14/21, International Centre for the Settlement of Investment Disputes. 72  Ibid., Procedural Order Nos. 5 and 6, 21 July 2016. 73  Bear Creek Mining Corporation v. Republic of Peru, Amicus Curiae Brief Submitted by the Association of Human Rights and the Environment – Puno (“DHUMA”) and Dr. Lopez, Case No. ARB/14/21, International Centre for the Settlement of Investment Disputes, 10 June 2016, para 17. 74 Ibid., para 6. 75  Piero Foresti, Laura de Carli and others v. The Republic of South Africa, Case No. ARB(AF)/07/1, International Centre for the Settlement of Investment Disputes. 76  Ibid., Letter Regarding Non-Disputing Parties, 5 October 2009. 77 The Claimants argued, given that they had received partial relief, and given the costs of the arbitration and current economic conditions, it was now appropriate to seek discontinuance of these proceedings.

244  Wasiq Dar and Gautam Mohanty it is impossible to predict the impact of amicus submissions on the outcome of the case, but this case is noteworthy for the reason that this was the first time an ICSID tribunal allowed the amicus curiae access to the case documents which included parties’ filings.78 The tribunal, while allowing access to case documents to the amicus curiae, observed that it: has given directions for the disclosure of documents to them, having in mind two basic principles: (1) NDP participation is intended to enable NDPs to give useful information and accompanying submissions to the Tribunal, but is not intended to be a mechanism for enabling NDPs to obtain information from the parties. (2) Where there is NDP participation, the Tribunal must ensure that it is both effective and compatible with the rights of the parties and the fairness and efficiency of the arbitral process. Accordingly, the Tribunal was of the view that the NDPs must be allowed access to those papers submitted to the Tribunal by the parties that are necessary to enable the NDPs to focus their submissions upon the issues arising in the case and to see what positions the parties have taken on those issues. The NDPs must also be given adequate opportunity to prepare and deliver their submissions in sufficient time before the hearing for the parties to be able to respond to those submissions.79 As a final observation, the tribunal remarked that it would discuss the comments of the parties and the amicus curiae in its final award. 9.5 The Way Forward: Moving Towards Inclusion from Exclusion By way of a starting point, perhaps one possible way to ensure that arbitral tribunals consider public interest issues is by express reference in the preamble of the treaty. The importance of the preambular language of the treaty can be understood from Article 31(2) of the Vienna Convention on the Law of Treaties (VCLT) which categorically postulates that the context and purposes of a treaty are to be derived inter alia from the treaty’s preamble.80 Pertinently, Article 31(3)(c) of the VCLT stipulates a general rule of treaty interpretation whereby tribunals are expected to consider “any relevant rules of international law applicable in the relations between

78 Piero Foresti, Laura de Carli and others v. The Republic of South Africa, Award, Case No. ARB(AF)/07/1, International Centre for the Settlement of Investment Disputes, 4 August 2010, para 28. 79 Piero Foresti, Laura de Carli and others v. The Republic of South Africa, Letter Regarding NonDisputing Parties, Case No. ARB(AF)/07/1, International Centre for the Settlement of Investment Disputes, 5 October 2009. 80 Kirsten Mikadze, ‘Uninvited Guests: NGOs, Amicus Curiae Briefs, and the Environment in Investor-State Dispute Settlement’ (2016) 12 Journal of International Law and International Relations 35.

NGOs as Amicus in Arbitration  245 the parties”.81 In the opinion of some commentators, issues involving public interest such as environmental issues and human rights issues in international investment law must be approached holistically as both are strongly grounded in the underpinnings of public international law. Such an approach will equip investment tribunals to consider customary international law, human rights law and environmental law as the relevant legal context for interpreting the provisions of BITs.82 The general rule of interpretation postulated in Article 31(3)(c) of the VCLT, in the opinion of the authors, provides a window for the tribunals to integrate and address public interest issues in international investment law through the “systemic integration method”.83 The systemic integration method in the current context would entail the concerned tribunals adopting a broad and friendly interpretative approach to public interest issues so as to assume jurisdictions over such matters. Further, focusing on increasing the procedural openness of the investment regime is plausibly another way of increasing the participation of NGOs in investor-state arbitration. The capacity to facilitate a holistic discussion of human rights concerns emanating from the claims of the aggrieved foreign investor is directly related to the possibility of submitting an amicus brief. In this context, Blackaby and Richard argue that the present form of the procedural rules hinders prospective amici from participating meaningfully in the following words: [i]t is questionable whether the admission of amicus curiae briefs alone increases the transparency and legitimacy of investment arbitration. Under the rules applied to the admission of amicus briefs, civil society groups are invited to file submissions without being able to review the parties’ pleadings or attend the oral hearings. In the absence of public access to the arbitration record or the oral proceedings, the content of such briefs is unlikely to be focused or helpful. At worst, the presence of amicus curiae – a further partisan party advocating a position on behalf of persons to whom it is unaccountable, behind closed doors, and without being afforded a full opportunity to make a meaningful contribution – may exacerbate the democratic deficit,

81 Campbell McLachlan, ‘The Principle of Systemic Integration and Article 31(3)© of the Vienna Convention’ (2005) 54 International Law and Comparative Law Quarterly 279. 82 Anne van Aaken, ‘Defragmentation of Public International Law Through Interpretation: A Methodological Proposal’ (2009) 16 (2) Indiana Journal of Global Legal Studies 483. See also, Pierre-Marie Dupuy, ‘Unification Rather than Fragmentation of International Law? The Case of International Investment Law and Human Rights Law’ in Pierre-Marie Dupuy et al. (eds), Human Rights in International Investment Law and Arbitration (Oxford University Press 2009) 45–62. 83 Bruno Simma and Theodore Kill, ‘Harmonising Investment Protection and International Human Rights: First Steps Towards a Methodology’ in Christina Binder et al. (eds), International Investment Law for the 21st Century: Essays in Honour of Christoph Schreuer (Oxford University Press 2009) 678–707; Angelos Dimopoulos, ‘EC Free Trade Agreements: An Alternative Model for Addressing Human Rights in Foreign Investment Regulation and Dispute Settlement?’ in PierreMarie Dupuy et al. (eds), Human Rights in International Investment Law and Arbitration (Oxford University Press 2009) 592.

246  Wasiq Dar and Gautam Mohanty politicise investment disputes, and disrupt proceedings, without assisting the tribunal to decide the matters in dispute.84 Moreover, providing access to case documents is another aspect that has been problematic in the current investment regime regarding NGOs. The tribunal in almost all the cases reviewed by the authors except for Foresti had not provided NGOs access to the submission and documents of parties. From a logical standpoint, in the absence of access to oral hearings and documentation, amici are essentially working on assumptions and hypotheticals.85 It can be said that this hesitancy in allowing access to documents is deeply rooted in the wide discretion of powers provided to the tribunal. It is asserted at this juncture that throughout the chapter it is apparent that investment tribunals are increasingly interacting with NGOs through amicus brief submissions, although, the effect of the interaction is seemingly limited and does not affect the award passed by the tribunal. Recent developments in treaty-making clearly illustrate that the new generation of treaties consistently refers to human rights in the form of CSR responsibilities or in the form of environmental safeguards.86 More notably, some BITs such as the Brazilian Investment Cooperation and Facilitation Agreements and the Morocco-Nigeria BIT impose particular obligations in relation to labour and environmental standards.87 Such being the case, in the opinion of the authors, it is obvious that NGOs have a pivotal role in international investment law in ensuring compliance and highlighting discrepancies, if any, to the tribunals through their submissions. The current prevailing regime offers little by way of guidance to tribunals with regard to dealing with amicus curiae. A standard threshold in this regard must be established which will guide arbitral tribunals as to when to accept amicus submissions and to what extent the submissions made may be accepted. In light of this, 84 Kirsten Mikadze, ‘Uninvited Guests: NGOs, Amicus Curiae Briefs, and the Environment in Investor-State Dispute Settlement’ (2016) 12 Journal of International Law and International Relations 35. 85 Biwater Gauff (Tanzania) Limited v. United Republic of Tanzania, Petition for Amicus Curiae Status, Case No. ARB/05/22, International Centre for the Settlement of Investment Disputes, 27 November 2006. See Section 1.3 where the amici have admitted that lack of access to documents filed by parties hamstrings their ability to draft an effective and useful brief. 86 Olivier de Schutter, ‘The Accountability of Multinationals for Human Rights Violations in European Law’ in Philip Alston (ed), Non-State Actors and Human Rights (Oxford University Press 2005) 227; Peter Muchlinski, ‘Corporate Social Responsibility’ in Peter Muchlinski et al. (eds), The Oxford Handbook of International Investment Law (Oxford University Press 2008) 637–684; Eric de Brabandere, ‘Non-State Actors and Human Rights: Corporate Responsibility and the Attempts to Formalise the Role of Corporations as Participants in the International Legal System’ in Jean d’Aspremont (ed), Participants in the International Legal System: Multiple Perspectives on NonState Actors in International Law (Routledge 2012) 268. 87 Morocco-Nigeria BIT, 3 December 2016, Article 18; Brazil–India Investment Cooperation and Facilitation Treaty, 25 January 2020, Articles 11–12. See further, Eleni-Amalia Giannakopoulou and Marios Tokas, ‘Compulsory Optionality: International Standardising Bodies as Transnational Actors in International Investment Law’ in Anastasios Gourgourinis (ed), Transnational Actors in International Investment Law (Springer 2021) 45–72.

NGOs as Amicus in Arbitration  247 the introduction of the rules on transparency to the UNCITRAL rules is a welcome change. These rules are a result of “pressure from civil society actors” that compel parties to an investment dispute to make several documents available to the public.88 The United Nations Convention on Transparency in Treaty-Based InvestorState Arbitration (New York, 2014) (the “Mauritius Convention on Transparency”) supplements investment treaties by promoting transparency under Article 2 which determines the application of UNCITRAL rules on transparency irrespective of the applicable arbitration rules. The Convention goes one step further by ensuring flexibility through the provision of reservations, provided such reservations do not defeat the purpose of the Convention and accords for “both the public interest in such arbitration and the interest of the parties to resolve disputes in a fair and efficient manner”.89 The innovative reforms can help formulate a standard threshold mentioned earlier to increase the participation of NGOs in investor-state arbitration. 9.6 Conclusion The acceptability of amicus submissions made by NGOs by investment arbitral tribunals has provided a window of opportunity for addressing issues pertaining to the general public interest. That said, it cannot be the case that NGOs are the sole representative of public interest in investor-state arbitration proceedings. The analysis of the decisions suggests that though NGOs have been given an opportunity to submit their amicus briefs, in most cases their briefs have not had much impact on the outcome of the case. The main reasons are the limited mandate of arbitral tribunals, owing to the agreement between the parties, and the “criteria” laid down in certain relevant rules – such as Article 37(2) of ICSID Arbitration Rules – with respect to the participation of the non-disputing parties. In essence, as already stated herein, it is imperative that NGOs act as specialist advisors and bring something new to the table by providing expertise beyond the competencies of the parties and the tribunal. This view is reflected in the reasoning of the Vivendi Tribunal: The purpose of amicus submissions is to help the Tribunal arrive at a correct decision by providing it with arguments, expertise, and perspectives that the parties may not have provided. The Tribunal will therefore only accept amicus submissions from persons who establish, to the Tribunal’s satisfaction, that they have the expertise, experience, and independence to be of assistance in this case.90

88 See International Centre for the Settlement of Investment Disputes, UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration (2014) accessed 11 December 2022. 89 Ibid. 90 Suez, Sociedad General de Aguas de Barcelona, SA and Vivendi Universal, SA v. Argentine Republic, Order in Response to a Petition for Transparency and Participation as Amicus Curiae, Case No. ARB/03/19, International Centre for the Settlement of Investment Disputes, 19 May 2005.

248  Wasiq Dar and Gautam Mohanty Be that as it may, it is safe to argue that NGOs as amicus curiae have the potential to provide a positive contribution to investor-state arbitrations. They can significantly engage in and contribute to the development of investment law and policy and initiate a discussion on larger public interest, especially human rights law within the investor-state arbitration framework. Additionally, amicus submissions by NGOs can enhance the transparency and legitimacy of the investor-state arbitration regime, which has been subjected to much criticism owing to “rule of law” concerns. Bibliography Baltag C, ‘Chapter 6: Access to Justice in Investment Arbitration and Non-disputing Party Participation’ in de Oliveira L V P and Hourani S (eds), Access to Justice in Arbitration: Concept, Context and Practice (Kluwer Law International 2020). Bastin L, ‘The Amicus Curiae in Investor-State Arbitration’ (2012) 1 (3) Cambridge International Law Journal 208. Blackaby N and Richard C, ‘Amicus Curiae: A Panacea for Legitimacy in Investment Arbitration?’ in Waibel M et al. (eds), The Backlash Against Investment Arbitration (Wolters Kluwer 2010). Born G and Forrest S, ‘Amicus Curiae Participation in Investment Arbitration’ (2019) 34 (3) ICSID Review – Foreign Investment Law Journal 626. Boyle A and Chinkin C, The Making of International Law (OUP 2007). Brower C H, ‘Structure, Legitimacy, and NAFTA’s Investment Chapter’ (2003) 36 Vanderbilt Journal of Transnational Law 37. Caruba S L, ‘Resolving International Investment Disputes in a Globalised World’ (2007) 13 New Zealand Business Law Quarterly 128. Chimni B S, ‘International Institutions Today: An Imperial Global State in the Making’ (2004) 15 (1) European Journal of International Law 1. de Brabandere E, ‘NGOs and the ‘Public Interest’: The Legality and Rationale of Amicus Curiae Interventions in International Economic and Investment Disputes’ (2011) 12 (1) Chicago Journal of International Law 85. de Brabandere E, ‘Non-State Actors and Human Rights: Corporate Responsibility and the Attempts to Formalise the Role of Corporations as Participants in the International Legal System’ in d’Aspremont J (ed), Participants in the International Legal System: Multiple Perspectives on Non-State Actors in International Law 268 (Routledge 2012). de Schutter O, ‘The Accountability of Multinationals for Human Rights Violations in European Law’ in Alston P (ed), Non-State Actors and Human Rights (OUP 2005). Dimopoulos A, ‘EC Free Trade Agreements: An Alternative Model for Addressing Human Rights in Foreign Investment Regulation and Dispute Settlement?’ in Dupuy P-M et al. (eds), Human Rights in International Investment Law and Arbitration 592 (OUP 2009). Dupuy P-M, ‘Unification Rather than Fragmentation of International Law? The Case of International Investment Law and Human Rights Law’ in Dupuy P-M et al. (eds), Human Rights in International Investment Law and Arbitration (OUP 2009). Francioni F, ‘Access to Justice, Denial of Justice, and International Investment Law’ in Dupuy P-M et al. (eds), Human Rights in International Investment Law and Arbitration (OUP 2009). Franck S D, ‘The Legitimacy Crisis in Investment Treaty Arbitration: Privatising Public International Law through Inconsistent Decisions’ (2005) 73 Fordham Law Review 1521.

NGOs as Amicus in Arbitration  249 Giannakopoulou E A and Tokas M, ‘Compulsory Optionality: International Standardising Bodies as Transnational Actors in International Investment Law’ in Gourgourinis A (ed), Transnational Actors in International Investment Law (Springer 2021). Graham C, A “How To” Guide to Amicus Curiae and International Investment Arbitration (Advocates for International Development, 2012). Ishikawa T, ‘Third Party Participation in Investment Treaty Arbitration’ (2010) 59 (2) International and Comparative Law Quarterly 373. Kamminga M T, ‘The Evolving Status of NGOs under International Law: A Threat to the Inter-State System?’ in Alston P (ed), Non-State Actors and Human Rights (OUP 2005). Mackenzie R et al., The Manual on International Courts and Tribunals (2nd edn, OUP 2010). Martinez-Fraga P J and Reetz C R, Public Purpose in International Law: Rethinking Regulatory Sovereignty in the Global Era (CUP 2015). McLachlan C, ‘The Principle of Systemic Integration and Article 31(3)(c) of the Vienna Convention’ (2005) 54 International Law and Comparative Law Quarterly 279. Mikadze K, ‘Uninvited Guests: NGOs, Amicus Curiae Briefs, and the Environment in Investor-State Dispute Settlement’ (2016) 12 Journal of International Law and International Relations 35. Muchlinski P, ‘Corporate Social Responsibility’ in Muchlinski P et al. (eds), The Oxford Handbook of International Investment Law (OUP 2008). Renner M, ‘The Dialectics of Transnational Economic Constitutionalism’ in Joerges C and Falke J (eds), Karl Polanyi, Globalisation, and the Potential of Law in Transnational Markets (Hart Publishing 2011). Santacroce F G, ‘The Applicability of Human Rights Law in International Investment Disputes’ (2019) 34 (1) ICSID Review – Foreign Investment Law Journal 136. Schill S W and Djanic V, ‘Wherefore Art Thou? Towards a Public Interest-Based Justification of International Investment Law’ (2018) 33 (1) ICSID Review – Foreign Investment Law Journal 29. Schill S W, ‘International Investment Law and Comparative Public Law - An Introduction’ in Schill S W (ed), International Investment Law and Comparative Public Law (OUP 2010). Schneiderman D, ‘Legitimacy and Reflexivity in International Investment Arbitration’ (2011) 2 (2) Journal of International Dispute Settlement 471. Shelton D, ‘The Participation of Nongovernmental Organisations in International Judicial Proceedings’ (1994) 88 (4) The American Journal of International Law 611. Simma B and Kill T, ‘Harmonising Investment Protection and International Human Rights: First Steps Towards a Methodology’ in Binder C et al. (eds), International Investment Law for the 21st Century: Essays in Honour of Christoph Schreuer (OUP 2009). Simma B, ‘Foreign Investment Arbitration: A Place for Human Rights?’ (2011) 60 (3) International and Comparative Law Quarterly 573. Simoes F D, ‘Myopic Amici? The Participation of Non-Disputing Parties in ICSID Arbitration’ (2017) 42 (3) North Carolina Journal of International Law 791. Tienhaara K, The Expropriation of Environmental Governance: Protecting Foreign Investors at the Expense of Public Policy (CUP 2009). Triantafilou E, ‘Amicus Submissions in Investor-State Arbitration After Suez v. Argentina’ (2008) 24 (4) Arbitration International 571. van Aaken A, ‘Defragmentation of Public International Law Through Interpretation: A Methodological Proposal’ (2009) 16 (2) Indiana Journal of Global Legal Studies 483.

Part V

Public Interest Litigation and Human Rights



10 Balancing Public Interest with HealthRelated Rights Current Dilemmas and Future Prospects Maria-Louiza Deftou1

10.1 Introduction1 Respect for public interest can be understood in various, yet conflicting ways, the peaceful co-existence of which represents a rather tenuous balancing task – particularly for governments, legal professionals and policy-makers. Public interest does not necessarily correspond to the state’s interest or to the interest of the ‘public’. Ill-defined as it might be, the luminous construction of public interest – since its dawn – cuts across almost every legal field, either private or public, with numerous doctrinal implications. Within the realm of human rights adjudication, public interest – in the sense of economic interest, public order or public health – appears as legitimate grounds apt to justify a state’s proportionate interference with nonabsolute human rights.2 Public interest grounds also put forward the derogation clauses existing in almost every human rights treaty.3 Although at first sight, an individual right seems to clash with the interest of the public, if we look closer, it readily appears that often human rights (individual rights of the many/social rights) are clothed as manifestations of public interest. Bearing in mind that human rights restrictions for the sake of public interest should be seen as representing a human rights conflict in disguise, public interest considerations and individual rights should be equally treated by human rights mechanisms. For instance, when health-related restrictions to human rights are under

1 This chapter  was presented at the Public Interest Litigation Workshop, held in Exeter on 10–11 November 2021. Τhe author wants to thank Emeritus Professor Antonios Bredimas and Professor Caroline Fournet for their encouragement and insightful comments on earlier drafts. The usual disclaimer applies. 2  See Council of Europe, European Convention on Human Rights, 4 November 1950, Articles 8–11; Organisation of American States, American Convention on Human Rights, 22 November 1969, Articles 12, 13, 15, 16, 21, 22, 30; UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, Articles 12, 18, 19, 21, 22. 3  See inter alia Council of Europe, European Convention on Human Rights, 4 November 1950, Article 15; Organisation of American States, American Convention on Human Rights, 22 November 1969, Article 27; UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, Article 4. DOI:  10.4324/9781003433460-15

254  Maria-Louiza Deftou scrutiny, public health justifications bring to mind the right to health and the social purposes that the latter seeks to serve. Framed as a social right whose justiciability remains contested, the right to health appears to enter human rights adjudication ‘through the back door’ either incorporated into the scope of application of other rights or veiled as a function of ‘public interest’. This entire problématique also sits comfortably with the falseness of the dilemma between the individual and collective dimensions of this right, both encompassed within its normative content. Against this background, the following questions readily emerge: what happens when the rights to be balanced with public health are health-related rights (e.g. the right to [or not to] be given medical care, the right to [or not to] be vaccinated, non-discrimination complaints related to access to diagnosis/therapy, etc.)? Can states be still trusted to be the only duty-bearers defending public interest? This chapter purports to explore the uneasy relationship between human rights and the health-based public interest in times of globalisation of diseases and reflects on the emergence of a more collective conception of the right to health. To do so, it sheds light on the complex legal concept of ‘public interest’ and its ostensibly incompatible nature with human rights concerns. Building upon the conceptual problem plaguing this legal area, the chapter aims to determine whether there is room for a more inclusive invocation of public interest claims before international human rights courts (i.e., by NGOs and/or civil society actors, etc.) which would not leave the defence of public interest solely to the state. It, finally, seeks to measure whether public interest litigation can also find its place in human rights adjudication and add to the current trend of rethinking the state-centred perception of public interest. 10.2  Defining the Contemporary Notion of Public Interest in a Human Rights Context Defining the luminous, yet slippery concept of public interest is definitely not a walk in the park. Public interest is an integral part of the constitutional tradition of Western legal orders which in fact make use of various shapes or forms. When it comes to terminology, public interest appears inter alia as ‘general interest’, ‘common good’, ‘public good’, ‘common interest’, ‘public benefit’, ‘general good’, etc. Alongside these almost tautological wordings, more specific terms such as ‘national interest’, ‘public utility’ and ‘social interest’ can also be found in several national constitutions. It goes without saying, therefore, that the significant number of variations that the notion of public interest accommodates indicates the universality of this scheme and simultaneously underscores the clarity of its very essence. Browsing through some of the most reputable law dictionaries, one can understand the overarching term of ‘public interest’ as ‘[t]he general welfare of the public that warrants recognition and protection; and something in which the public as a whole has a stake; especially an interest that justifies government regulation’4

4 Bryan Garner (ed), Black’s Law Dictionary (7th edn, West Publishing Co. 1979).

Balancing Public Interest  255 or ‘that which is best for society as a whole’, accompanied by ‘a subjective determination by an individual such as a judge or governor, or a group such as a … legislature of what is for the general good of all people’.5 Far from being ostensibly comprehensive in scope, the concept of public interest remains ever-evolving and adaptable to the specific legal context in which it operates.6 Notwithstanding its vague and fluctuating nature, ‘public interest’ has found its clearest expression in – and is determined by – a wide array of intersecting areas of the public sphere, including politics, health governance, media, cyberspace and environment. Having itself a life outside law, the concept is outlined in broad terms as grounded in the extent of the polity’s responsibility for the global good, and by and large, in philosophical and moral concerns about law and society. One could, thus, cogently argue that the term is used in an aspirational manner, to designate what we believe should be of public concern, justified by ascribed community values and underpinned by social justice and human dignity.7 Therefore, ‘public interest’ embraces fundamental, yet abstract legal schemes that feed human rights judicial practice such as conflict, discretion and proportionality. When it comes to human rights adjudication, the role that public interest comes to play is fairly clear and inextricably linked to the restriction of human rights and the discretion that states enjoy in this respect.8 Fleshed out as the legal interest of the public that leaves room for judicial or executive latitude, the invocation of public interest before human rights fora is often determined by the struggle of national authorities to serve their own perception of public interest in the absence of disproportionate interference with individuals’ rights. It appears thus as a safety net for the states that avail themselves of the discretionary benefits accrued to ‘public interest’ circumscribing the interests of a few. Subsequently, since public interest measures are subject to judicial review, discretionary authority is finally given to the respective judicial mechanism that, in any case, has its own ways of scrutinising the non-arbitrariness and legitimacy of such measures.9 Interestingly, the term does not explicitly appear in the initial text of one of the most influential instruments of international human rights law, namely the European Convention on Human Rights (hereinafter ECHR); nevertheless, it is behind the legitimate limitations of non-absolute human rights (i.e. see para 2, Arts 8–11 ECHR) and it appeared, later on, in Art. 1 Prot. 1 ECHR and Art. 1 Prot. 5  Steven Gifis, Law Dictionary (4th edn, Barron’s Educational Services 1996). 6  John Morison and Leanne Cochrane, ‘Public Interest’ in Rainer Grote, Frauke Lachenmann and Rüdiger Wolfrum (eds), Max Planck Encyclopedia of Comparative Constitutional Law (MPECCoL): Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law (Oxford University Press 2018). 7  Penny Martin, ‘Defining and refining the concept of practising in “the public interest”’ (2003) 28 (1) Alternative Law Journal 3. 8 It is no coincidence that the margin of appreciation doctrine adopted by the ECtHR, the most influential human rights court worldwide, is mostly used when public interest-driven considerations must be balanced with human rights protected by the ECHR. 9 See Edwin Rekosh, ‘Who defines public interest  – Public Interest Law Strategies in Central and Eastern Europe’ (2005) 2 Sur – International Journal on Human Rights 167, 170.

256  Maria-Louiza Deftou 4 ECHR, again as a justification for the restriction of the said rights.10 Taking the form of national security, public order, public safety, public health, economic interests or the rights and freedoms of others and public morality, ‘public interest’, as an overarching, multidimensional concept, performs as the main opponent of judicially protected rights. Or maybe not? Notwithstanding the intersecting relationship between the two concepts, public interest remains crucial for the proper understanding of human rights in that, in situations of conflict, they protect individuals’ interests or choices from being overridden by considerations of collective utility.11 The multidimensional coexistence of public interest with human rights doctrine comes to the fore if we consider Samantha Besson’s words, ‘human rights are entitlements against public institutions (national, regional or international). Human rights are rights that individuals have against the political community, i.e. against themselves collectively’.12 That is exactly what complicates the understanding of public interest when it clashes with fundamental rights. And it is against this backdrop that the principle of proportionality comes to the rescue of human rights enforcement, figuring as a practicality that aims to resolve a philosophical bras de fer between conflicting rights and interests. The multifaceted and complex role that proportionality comes to play adds, though, to the theoretical strains around the morality of public interest and the very nature of rights.13 At any rate, one can easily observe that while the orthodox understanding of public interest as a human rights doctrine remains vacuous, genuine moral concerns are expressed about what various values it actually requires or seeks to serve. 10.3 Public Health: Interest or Right? The COVID-19 global pandemic vividly demonstrated the public health-related arguments and the complexity of the aforementioned dilemma arising more and more before human rights courts around the world. Public health can be traced as one of the most underlying manifestations of public interest apt to open the door for legitimate limitations of several rights or freedoms (i.e. right to privacy, religious freedom, freedom of expression, assembly, etc.). In many instances, human rights

10 Public interest-driven limitation clauses are also incorporated in other regional instruments, such as the American Convention on Human Rights. 11 Aileen McHarg, ‘Reconciling Human Rights and the Public Interest: Conceptual Problems and Doctrinal Uncertainty in the Jurisprudence of the European Court of Human Rights’(1999) 62 (5) The Modern Law Review 671, 672. 12 Samantha Besson, ‘The Egalitarian Dimension of Human Rights’ (2013) 136 Archiv für Rechts- und Sozialphilosophie, ‘ARSP’. Beiheft 19. 13 George Letsas, ‘Rescuing proportionality’ in Rowan Cruft, S. Matthew Liao and Massimo Renzo (eds), Philosophical Foundations of Human Rights (Oxford University Press 2015) 316–340, 318; see also Stavros Tsakyrakis, ‘Proportionality: An Assault on Human Rights?’ (2009) 7 (3) International Journal of Constitutional Law 468; Grégoire Webber, ‘Proportionality, Balancing, and the Cult of Constitutional Rights Scholarship’ (2010) 23 (1) Canadian Journal of Law and Jurisprudence 179.

Balancing Public Interest  257 intersect with public health law, serving both as the reasoning behind public health governmental interventions and actions and as a limitation on the state’s power when the latter attempts to fulfil public health goals. Yet, the right to health14 itself is also a stand-alone individual right that was first incorporated in the Universal Declaration of Human Rights,15 also enshrined in the International Covenant of Social, Economic and Cultural Rights (ICESCR), adopted in 1966.16 But again, the right to health only appeared in an instrument protecting human rights as entitlements with collective and societal utility. The wording of Article 12 ICESCR17 admittedly embraces its two dimensions, both individual and public, as further adduced by the Committee of Economic, Social and Cultural rights in the General Comment 14.18 Being the only monitoring body entitled to interpret the text of the ICESCR, the Committee seized, in 2000, the opportunity to lay down the contemporary meaning of the ‘right to highest attainable state of health’ with special reference to the determinants of health of the right (i.e. water, sanitation, food, etc.) and the main elements that render its full realisation feasible (i.e. availability, accessibility, acceptability and quality).19 Exercising its quasi-judicial mandate, the Committee has delivered, to date, no more than one decision in merito pursuant to Article 12 that only concerned assisted reproductive technology.20 At the regional level, reading the individual right to health as a component of the public good corresponds to the spirit of the relevant provisions in both the European Social Charter (Article 11)21 and the San Salvador Protocol (Article 10).22 Particularly in Europe, the European Committee of Social Rights, the monitoring body of the European Social Charter, has limited jurisprudence on

14 Brigit Toebes, The Right to Health as Human Right in International Law (Intersentia 1999); John Tobin, The Right to Health in International Law (Oxford University Press 2012). 15 UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III), Article 25. 16 UN General Assembly, International Covenant on Economic, Social and Cultural Rights, 16 December 1966, United Nations, Treaty Series, vol. 993. 17 Ibid., Article 12. 18 UN Committee of Economic, Social and Cultural Rights, General Comment No. 14, 11 August 2000, U.N. Doc. E/C.12/2000/4; Benjamin Mason Meier and Larisa M. Mori, ‘The Highest Attainable Standard: Advancing a Collective Human Right to Public Health’ (2005) 37 Columbia Human Rights Law Review 101. 19 UN Committee of Economic, Social and Cultural Rights, General Comment No. 14, 11 August 2000, U.N. Doc. E/C.12/2000/4, paras 10, 11, 12. 20  UN Committee of Economic, Social and Cultural Rights, S. C. and G. P. v Italy, Views adopted by the Committee under the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, concerning communication No. 22/2017, 28 March 2019, E/C.12/65/D/22/2017. 21 Council of Europe, European Social Charter (Revised), 3 May 1996, ETS 163, Article 11. 22  Organisation of American States, Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (‘Protocol of San Salvador’), 16 November 1999, A-52.

258  Maria-Louiza Deftou the matter in the context of the collective complaint procedure, binding for only 14 states.23 Crucial as it is for the realisation of the right to life and the unimpeded enjoyment of other rights, the right to health is framed in rather abstract terms, yet its broad formulation and problematic enforcement give rise to the emergence of diverse health-related rights and nascent insights of this right.24 Qua a social right, whose justiciability remains largely contested25 and whose implementation in practice passes through the positive actions of the state, the public dimension of this right is often even more visible than its individual manifestation as the right to medical care or treatment. Admittedly, it is this duality that raises valid concerns when considering the role that public health plays in human rights systems. The right to health seems to have encompassed public health mandates on states and does not content itself to merely guarantee individual access to medical care. States are entitled thus to adopt public health strategies apt to ensure an environment conducive to good health, mitigate the threats to public health infectious disease control or meet societal health concerns (i.e. reproductive rights and family planning). Therefore, the ever-looming public dimension of such a right possibly leaves room for the formulation of a nascent right to public health, not just a public interest justification that needs state-driven protection. At the same time, public health, clothed as a manifestation of public interest, is greatly invoked by states as a shield to refute their binding human rights

23  Pursuant to Council of Europe, Additional Protocol to the European Social Charter providing for a System of Collective Complaints, 9 November 1995, ETS 158, Article 1, three types of international NGOs or trade unions with a participatory status with the Council of Europe may raise their complaints before the Committee. The latter takes a decision on the merits which is forwarded to the parties and formulates the basis of a report delivered to the Committee of Ministers which adopts subsequently a resolution with recommendations for the state concerned. Only NGOs included on a list of those entitled to lodge a complaint of violation of the Charter can reach the bench of the Committee. Given the limited acceptance of the optional Protocol establishing the collective complaint procedure, to date, only 63 NGOs are on the list of the organisations apt to initiate the said procedure. The lack of enforcement of the Committee’s decisions coupled with the restricted mandate of the body, as it stands today, underscores the normative reach of its decisions and thus, the utility and legitimacy of the mechanism. See also Robin Churchill and Urfan Khaliq, ‘The Collective Complaints System of the European Social Charter: An Effective Mechanism for Ensuring Compliance with Economic and Social Rights?’ (2004) 15 (3) European Journal of International Law 417, 452. 24 Stephen P. Marks, ‘The emergence and scope of the human right to health’ in José Zuniga, Stephen P. Marks and Lawrence O. Gostin (eds), Advancing the Human Right to Health (Oxford University Press 2013). 25  International Commission of Jurists, Courts and the Legal Enforcement of Economic, Social and Cultural Rights: Comparative Experiences of Justiciability (International Commission of Jurists 2008) 73, 82. See, on the contrary, the perception of CESCR with regard to the justiciability of social rights as described in UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 9: The domestic application of the Covenant, 3 December 1998, E/C.12/1998/24; Eva Brems, ‘Indirect Protection of Social Rights by the European Court of Human Rights’ in Daphne Barak-Erez and Aeyal M. Gross (eds), Exploring Social Rights: Between Theory and Practice (Hart Publishing 2007).

Balancing Public Interest  259 obligations. Health-related arguments are only presented before human rights courts as endorsed within the scope of application of other judicially protected human rights, albeit mostly targeted to remedy failed access to medical treatment or inequalities on the grounds of health or medical negligence.26 This paradox fits squarely with the long-standing conflict between rights and interests in international human rights law. For numerous scholars, public interests that phenomenally clash with human rights are actually two sides of the same coin that deserve equal respect and shape, in fact, a genuine human rights conflict in disguise.27 As Xiaobing Xu and George D. Wilson emphatically put it, ‘the reason why utilitarian values such as national security, public safety, public order, public health, and public morality may outweigh human rights is that they contain human rights elements’.28 However, this conceptual approach, although comes in support of the genesis of a new right to public health, raises rational concerns about the potential misuse of such a right vs right argumentation by the states. According to this approach, the rights-restrictive rhetoric of the states is mostly anchored on speculation and the probability that the ‘public’ interest at risk might be damaged.29 Whether deciding over one or the other hypothesis may steer its outcome remains hard to identify when it comes to judicial practice. Human rights mechanisms monitoring the implementation of individual rights appear not to wield the tools necessary to resolve these conflicts in a definitive manner. And it is exactly what brings us back to the question of proportionality as the main weapon of human rights judiciaries. For Guglielmo Verdirame, ‘[i]n proportionality as an adjudicative principle on the limitation of fundamental rights, the terms that are being balanced seem to be two types of benefits to society – one deriving from the protection of the fundamental right and the other from a competing public interest’.30 In this context, the pandemic has given rise to an enormous ensemble of human rights concerns that are potentially overridden in the name of the protection of public health. Hence, the previously described vicious circle becomes more and more pertinent. Numerous cases are currently pending before human rights fora and the public health argument is now rooted in a global tragic reality, not a state’s abstract speculation. However, the question persists: do times call for a new understanding of public health shaped as an emerging collective right rather than a collective interest? 26  See for instance the health-related cases adjudicated by the European Court of Human Rights, Factsheet ‘Health’ (October 2022) accessed 24 November 2022. 27  Peggy Ducoulombier, ‘Conflicts between Fundamental Rights and the European Court of Human Rights: An Overview’ in Eva Brems (ed), Conflicts between Fundamental Rights (Intersentia 2008) 223. See also Janneke Gerards, ‘Fundamental Rights and Other Interests: Should it Really Make a Difference’ in Eva Brems (ed), Conflicts between Fundamental Rights (Intersentia 2008). 28 Xiaobing Xu and George Wilson, ‘On Conflict of Human Rights’ (2006) 5 Pierce Law Review 31. 29 Stijn Smet, Resolving Conflicts between Human Rights (Routledge 2018) 49. 30  Guglielmo Verdirame, ‘Rescuing Human Rights from Proportionality’ in Rowan Cruft, S. Matthew Liao and Massimo Renzo (eds), Philosophical Foundations of Human Rights (Oxford University Press 2015) 344.

260  Maria-Louiza Deftou 10.4 A False Dilemma in the Time of Globalisation of Diseases Along these lines, health-related rights are also infringed on the basis of the state’s positive measures pursuing public health interest due to their strong societal underpinnings. For instance, a large number of people are advocating against the COVID-19 vaccines and more importantly, the compulsory vaccinations of specific groups, such as healthcare workers or teachers. What is more, the delayed vaccination of homebound older patients31 or the restricted – in practice – access of vulnerable groups (i.e. undocumented migrants, LGBTQI persons) to vaccination have created inequalities32 that contradict the state’s prioritisation of public health laws and strategies amid the pandemic. It is true, though, that such tensions may, in fact, transform into justiciable human rights claims under the umbrella of normative protection of human rights texts with binding force. Within regional systems, health-related rights are indeed incorporated as implicit, yet diverse manifestations of the right to health, in the rich scope of application of robust norms of human rights law (i.e. the right to life or the right to private and family life, non-discrimination, etc.). All of the above are thus formulated as implied, sub-rights of an overarching perception of the right to health as they find themselves close to the heart of its basic components such as availability or accessibility. However, the lack of concrete, universal protection and consensus pertaining to health-related considerations have resulted in the deactivation of the said right and the well-known, ‘old rights’ play the role of norm-fillers and constitute the only feasible legal pathway to defend rights-based claims against public interest considerations. Clothed as individual – civil – rights, they conflict with public interest or with a timidly ‘implied’ collective right to public health. In practice, one dimension of the right to health clashes with another. Irrespective of whether this constitutes a genuine human rights conflict to be resolved,33 such an understanding also explains the long-established interconnectivity, interdependence and indivisibility of human

31 Only in the United States of America (USA), severe delays in the vaccination of homebound patients have disproportionately increased the risk for almost ten million Americans who were without full immunisation for a long time. Paula Span, ‘More Than 80 Percent of Seniors Are Vaccinated. That’s “Not Safe Enough”’ New York Times (New York, 2 September 2021) accessed 24 November 2022. 32  See Steering Committee on Anti-Discrimination, Diversity and Inclusion, COVID-19: an analysis of the anti-discrimination, diversity and inclusion dimensions in Council of Europe member states (Council of Europe 2020) accessed 24 November 2022. Further, undocumented migrants or asylum seekers often faced disproportionate health challenges when seeking for medical care as they could not be reached by mass communication efforts related to COVID 19 surveillance. See Lorenzo Guadagno, Migrants and the COVID-19 pandemic: An initial analysis (IOM-UN Migration Report No. 60 2021) accessed 24 November 2022 . 33  Stijn Smet, Resolving Conflicts between Human Rights (Routledge 2018).

Balancing Public Interest  261 rights and evidences the falseness of this dichotomy between individual and social rights and between rights and interests. Besides these looming conceptual issues, certain is that the highest attainable standard of health in today’s globalised world necessarily entails states’ public health interventions to achieve health promotion and disease prevention goals. But again, this step nowadays appears not to be enough: the globalisation of diseases poses novel challenges for our contemporary democracies and global health management arises as one of the most pressing concerns of our times. National policymakers may have a harder time promoting sustainable development and securing basic rights since the nature of the globalisation process prioritises the interests of the market over the socioeconomic needs of citizens. Global governance institutions and organisations leave states with a rather minimal role for the state in the regulation of social and economic matters that affect their national interests and the quality of their nationals’ lives. Within this context, the COVID-19 pandemic represented an unprecedented threat to public health; nevertheless, the globalisation of diseases is not a new phenomenon. In the aftermath of the HIV/AIDS burst in the 1970s, the recent Ebola or Zika outbreaks evidenced, time and again, that in a globalised world, public health and health security cannot be regulated by the states.34 José Αlvarez correctly pointed out that the current pandemic embodies the preamble’s premise that global health is not a zero-sum game, that the failure of one state to prevent its spread presents a ‘common danger’ to all, and that, accordingly, all states benefit when each protects the health of its own inhabitants.35 Economic globalisation global environmental and demographic change are closely related to the globalisation of infectious diseases,36 the rapid transmission of which calls for a common, yet coordinated response to common dangers. The World Health Organization’s (WHO) reaction to the COVID-19 pandemic has revealed

34 For the second time in the last two years (2020–2022), WHO has drawn attention on a global health emergency, calling, once again, for coordinated response. In July 2022, WHO’s General Director declared the rapidly increasing outbreak of Monkeypox – a virus transmitted to humans from animals with symptoms similar to those of smallpox – a public health emergency. See World Health Organization, ‘WHO Director-General declares the ongoing monkeypox outbreak a Public Health Emergency of International Concern’ (World Health Organisation, 23 July 2022) accessed 24 November 2022. 35  José E Alvarez, ‘The WHO in the Age of the Coronavirus’ (2020) 114 (4) American Journal of International Law 578, 578. 36  See Kelley Lee, Globalisation and Health: An Introduction (Palgrave Macmillan 2003); Steve J. Bickley, Ho Fai Chan, Ahmed Skali et al., ‘How does globalisation affect COVID-19 responses?’ (2021) 17 Global Health 57; World Health Organization‎, Advancing the right to health: the vital role of law (World Health Organization 2016) accessed 24 November 2022.

262  Maria-Louiza Deftou its pathologies in terms of structural inefficiencies and transparency concerns. It also demonstrated that global health governance brings together not only technical coordination problems but also the perennial need for political inter-state cooperation.37 In this realm, states should equally work – both at the international and the national level – for the prevention of diseases, including infectious and noninfectious disease surveillance, with national epidemiological public health programmes apt to guarantee stemming disease prevention for all. In addition to this, such a right to public health would create stringent obligations for the states to create the public health schemes necessary for health promotion according to their positive obligations related to the fulfilment of the – currently deactivated – right to health. That said, it becomes evident that the contemporary, globalised duties of the states call upon a collective conception of health-related rights that goes far beyond the present curative health model of today’s societies and the individual framing of all sub-rights that emerge. Advocating in favour of a collective right to health, Benjamin Mason Meier and Larisa Mori stated in this respect that creating a framework for discussing public health as a human right – mainstreaming human rights in public health discourse – allows international legal bodies to derive concrete, measurable indicators for governments in enacting public health programs and assures that these governments can be held accountable by entire populations for their failure to fulfil these duties.38 It is the collective enjoyment of public health that brings to life individual healthrelated complaints before human rights tribunals. And this premise – along with the dual dimension of public health – probably explains why health rights might be overridden by public interest justifications during a global health crisis.39 37 With regard to the role of the WHO in global health management and the entire critique about its inefficiencies and shortcomings during the pandemic see José E Alvarez, ‘The WHO in the Age of the Coronavirus’ (2020) 114 (4) American Journal of International Law 578; Eyal Benvenisti, ‘The WHO – Destined to Fail?: Political Cooperation and the COVID-19 Pandemic’ (2020) 114 American Journal of International Law 588; Michael A. Peters, Stephanie Hollings, Benjamin Green and Moses Oladele Ogunniran, ‘The WHO, the global governance of health and pandemic politics’ (2020) 54 (6) Educational Philosophy and Theory 707; Lawrence O. Gostin, Suerie Moon and Benjamin Mason Meier, ‘Reimagining Global Health Governance in the Age of COVID-19’ (2020) 110 American Journal of Public Health 1615; Antonis Bredimas, The World Health Organization and the fight against epidemics/pandemics: with special reference to the coronavirus crisis (Covid-19) (Sakkoulas Publications 2020) (in Greek). 38 Benjamin Mason Meier and Larisa M. Mori, ‘The Highest Attainable Standard: Advancing a Collective Human Right to Public Health’ (2005) 37 Columbia Human Rights Law Review 101, 121. 39 As a general rule, the judicial practice of human rights courts demonstrates that they tend to often prioritise individual rights when they are clashing with the state’s public interest considerations and they restrictively interpret the limitation and derogation clauses, endorsed in the treaties whose implementation monitor. Stijn Smet, Resolving Conflicts between Human Rights (Routledge 2018) 9; Benjamin Mason Meier and Larisa M. Mori, ‘The Highest Attainable Standard: Advancing a Collective Human Right to Public Health’ (2005) 37 Columbia Human Rights Law Review 101, 136;

Balancing Public Interest  263 At the regional level, the judicial organs have not pronounced yet on cases that might bring some clarity to the manner in which conflicts between health-related rights and public health would be approached. However, the Grand Chamber of the European Court of Human Rights (hereinafter ECtHR, the Court) delivered its long-anticipated judgment in Vavřička and Others v. Czech Republic40 in 2021 that touched upon the highly debatable issue of compulsory vaccination. The case was brought before the Court by parents that they had either been fined for failing to have their school-age children duly vaccinated or by parents on behalf of their underage children after they had been refused permission to enrol in preschools on the basis of a serious decline in the herd immunity of children’s diseases. The Court held that, as regards public health strategies, states are granted a rather wide margin of appreciation since they are better placed to decide upon the most adequate practices to protect their population from contagious diseases.41 Besides the better place rationale, the decisive factor, however, remains the general consensus among state parties pertaining to the nature of vaccination as ‘one of the most successful and cost-effective health interventions and that each state should aim to achieve the highest possible level of vaccination among its population’.42 Having examined whether the impugned measure can be justified by a pressing social need within a democratic society, the Court found that compulsory vaccination addresses ‘the state’s pressing social need to protect individual and public health against the diseases in question and to guard against any downward trend in the rate of vaccination among children’.43 Apparently, while assessing the pressing social need that the state aims to fulfil, public health goes hand in hand with individual health, emphasising their constant interplay, particularly when extremely infectious diseases put the life of a nation at risk. Nevertheless, the fact that, for the Court, the balance is tipped in favour of the protection of public health instead of the right to personal integrity (under Article 8 ECHR) does not come as a surprise.44 What is striking about this case George Letsas, A Theory of Interpretation of the European Convention on Human Rights (Oxford University Press 2007) 74. See also Aharon Barak, Proportionality: Constitutional Rights and their Limitations (Cambridge University Press 2012) 494. 40 Vavřička and Others v. Czech Republic App no. 47621/13 3867/14 73094/14 19298/15 19306/15 43883/15 (ECHR, 8 April 2021); See Katarzyna Ważyńska-Finck, ‘Anti-Vaxxers before the Strasbourg Court: Vavřička and Others v. Czech Republic’ (Strasbourg Observers Blog, 2 June 2021) accessed 24 November 2022. 41 Vavřička and Others v. Czech Republic App no. 47621/13 3867/14 73094/14 19298/15 19306/15 43883/15 (ECHR, 8 April 2021) para 273. 42 Ibid., para 277. 43 Ibid., para 288. 44 See Solomakhin v. Ukraine App no 24429/03 (ECHR, 15 March 2012); Boffa and Others v. San Marino, App no 26536/95 (ECommHR,15 January 1998). For an overview of the existing public health case law of the Strasbourg Court see Katerina Tsampi, ‘Public Health and the European Court of Human Rights: Using Strasbourg’s Arsenal in the COVID-19 Era’ (Groningen Public Health Blog, 27 March 2020) accessed 24 November 2022.

264  Maria-Louiza Deftou is the line of reasoning that the Grand Chamber has followed: the Court felt that special attention should be given to the importance of scientific data in the context of public health decision-making and the social solidarity aspect of vaccination. In particular, the Court stressed that when a serious decline in herd immunity to diseases is observed, compulsory vaccinations can be justified for the sake of the most vulnerable children who are unable to benefit from vaccination for health reasons and are indirectly protected by herd immunity. 45 The Court remains silent as to where this duty comes from. Does this duty derive from an emerging right to public health? Is this duty applicable in other contexts that require massive vaccination of the population to ensure adequate immunisation coverage? Irrespective of whether this case can guide the ECtHR’s future findings,46 it is definitely of pertinence under the current circumstances of the COVID-19 pandemic. However, a number of issues remained unaddressed and more clarity is needed when it comes to the distinction between contagious and non-contagious diseases and the weight of herd immunity at the proportionality stage.47 Hence, we cannot safely deduce whether the ECtHR would take this road should the contested national measures concern adults instead of children or the compulsory vaccination of specific groups (i.e. health care workers), whose vaccination also serves to protect the health of others, and the duty to vaccinate also comes with sanctions for noncompliance.48 Yet, under the current circumstances, I posit that both the prioritisation of science-based public health strategies and the social solidarity argument deployed by the Strasbourg Court in Vavřička could be legitimately expected to be also applicable to future cases on COVID-19 vaccines. In the meanwhile, a global public health ethic is more and more shaped and public health figures as a necessary pre-determinant for enforcing individual health

45 Solomakhin v. Ukraine App no 24429/03 (ECHR, 15 March 2012) para 288. 46 To avoid legitimate generalisations, the Court emphasised that this is a case adjudicated in a specific context, the one of childhood vaccines. Ibid., para 158. With regard to the COVID-19 pandemic, the Court, in Feilazoo v. Malta, has recently concluded to a violation of Article 3 ECHR due to poor detention conditions that the applicant suffered, housed with people in COVID-19 quarantine. When it comes to the Inter-American system, in the context of the monitoring of the compliance phase of its earlier judgment in Velez Loor case, the Inter-American Court of Human Rights issued a decision of provisional measures to urge Panama to take extra protective measures for detainees amid the COVID-19 pandemic. See Feilazoo v. Malta App no 6865/19 (ECHR, 11 March 2021); Fenech v. Malta App no. 19090/20(ECHR,1 March 2022); Vélez Loor v. Panamá, Resolution of the President of the Inter-American Court of Human Rights for the adoption of urgent measures, 26 May 2020, Inter-American Court of Human Rights. 47 See Zuzana Vikarská, ‘Is Compulsory Vaccination Compulsory?’ (Verfassungsblog, 12 April 2021) accessed 24 November 2022. In his dissenting opinion, Judge Wojtyczek also underlined the need to distinguish between diseases that can be controlled through compulsory vaccination and rule on a ‘disease-by-disease’ basis. See also Vavřička and Others v. Czech Republic App no.  47621/13 3867/14 73094/14 19298/15 19306/15 43883/15 (ECHR, 8 April 2021) Dissenting opinion of Judge Wojtyczek, para 9. 48 Anna Nilsson, ‘Is Compulsory Childhood Vaccination Compatible with the Right to Respect for Private Life? A Comment on Vavřička and Others v. the Czech Republic’ (2021) 28 (3) European Journal of Health Law 323, 387, 388.

Balancing Public Interest  265 rights or overturning the harms of globalisation of diseases. Within contemporary globalised societies, without public health, the enjoyment of any other rights loses its true meaning. Therefore, public health is hammered out as a vital component of health rights as well, without which states could not guarantee the health of their nationals under their positive obligations of human rights law. This conception does not run contrary to the nature of human rights as an intertwined set of entitlements, misconceived to be divided into individual and social. Quite on the contrary, it underlines that such a division, dictated by another era,49 mostly for methodological reasons, is now revealed as highly dysfunctional for the realisation of modern health rights. Yet, public health cannot stand only as state-defined public interest, since the social underpinnings of public health are, now more than ever before, noticeable. Irrespective of whether fleshing out a new collective right to health could be achieved through the expansion of the right to health or through setting new rules, this alone is not enough since an enforcement mechanism is always required to guarantee compliance. 10.5 Public Interest Litigation in Human Rights Adjudication: A New Field of Glory? Seeking alternatives that would remedy the limited scope and enforceability of the right to health appears as the only way forward. In this spirit, the incrementally emerging dynamics of public interest litigation should serve this cause. According to the glossary of the European Center for Constitutional and Human Rights, public interest litigation is designed to serve a broader public interest, for example in cases where those affected by a wrong cannot afford to bring legal action themselves or for those who for other reasons do not have access to the legal system. Public Interest Litigation is unique in that these legal actions can be brought by third parties, including NGOs, on behalf of a large group of affected persons or on behalf of the general public.50 The scheme works wonderfully already in national contexts, albeit not always with the same success. Human rights claims of communities and vulnerable groups

49 See for the post–Cold War distinction between civil and political rights on the one hand and social, economic and cultural rights on the other Philip Alston, ‘Economic And Social Rights’ in Louis Henkin and John Lawrence Hargrove (eds), Human Rights: An Agenda For The Next Century (The American Society Of International Law Press 1994); Manfred Nowak, ‘Civil and Political Rights’ in Janusz Symonides (ed), Human Rights: Concept and Standards (Routledge 2000) 70; Henry Steiner, Philip Alston and Ryan Goodman, International Human Rights in Context (Oxford University Press 2008) 271. 50  Glossary of the European Center for Constitutional and Human Rights available at: accessed 24 November 2022.

266  Maria-Louiza Deftou are for decades channelled and finally, voiced through public interest litigation in India, Pakistan, USA, Australia and elsewhere.51 Public interest litigation gains all the more ground globally. It has hitherto ensured larger representation to vulnerable social groups that call upon the enforcement of broader community interests and has indirectly reinforced the contested justiciability of social rights consolidating the right of access to justice and the rule of law, especially in societies dominated by rampant, systemic human rights breaches. By all means, public interest litigation’s ability to achieve improved and more effective human rights enforcement as well as an informed interpretation of relevant instruments is due to the extended procedural access it allows. Flexible standing procedures through a certain relaxation of stringent victim status requirements may offer the opportunity to voluntary human rights organisations, civil society activists and social partners to litigate on behalf of those who have limited access to judicial protection and redress.52 Without having space to develop the following ideas more thoroughly, public interest litigation certainly entails a certain loosening of the locus standi rule and of the victim participation in the hearings as well as an adjustment of remedial measures. Revolutionary as it is, public interest litigation has found its place not only within national legal contexts but also, partly, in the judicial practice of international human rights tribunals. Normally, the InterAmerican Court of Human Rights (IACtHR), well-known for its judicial activism, has already seized the opportunity to adjudicate a public interest litigation case brought by the indigenous community of Ecuador and to reaffirm the interplay between traditional land and the cultural identity of the said community.53 The case reveals the increasing importance of the narrative of public interest litigation in this field of law and brings to mind the potential role that this kind of strategic litigation has to play within the context of other regional systems, such as the European peer of IACtHR. For now, the European Court retains the prohibition of actio popularis pursuant to the Court’s admissibility criteria.54 Originating in the Roman tradition, actio popularis is understood in international law as a ‘right resident in any member of a community to take legal action in vindication of a public interest’.55 Actio popularis thus gives rise to a case in any member of the community or in a group of 51 Christine M. Forster and Vedna Jivan, ‘Public Interest Litigation and Human Rights Implementation: The Indian and Australian Experience’ (2008) 3 (1) Asian Journal of Comparative Law 143; Vinodh Jaichand, ‘Public Interest Litigation Strategies for Advancing Human Rights in Domestic Systems of Law’ (2004) 1 Sur-International Journal on Human Rights 127. 52  Scott L. Cummings and Deborah L. Rhode, ‘Public Interest Litigation: Insights From Theory and Practice’ (2009) 36 Fordham Urban Law Journal 603. 53  Salvador Herencia Carrasco, ‘Public Interest Litigation in the Inter-American Court of Human Rights: The Protection of Indigenous Peoples and the Gap between Legal Victories and Social Change’ (2015) Revue Québécoise de Droit International 199-220. 54 Klass and Others v. Germany App no 5029/71 (ECHR, 6 September 1978) para 33. The Christian Federation of Jehovah’s Witnesses in France v. France App no 53430/99 (ECHR, 6 November 2001). 55  South West Africa, Second Phase, Judgment, I.C.J. Reports 1966, para 88.

Balancing Public Interest  267 persons or entities, mostly NGOs, acting on behalf of the community as a whole. Lately, the Strasbourg Court has expressed signs of a certain liberalisation of the rigid victim status criteria on the basis of Article 34 ECHR. Besides the acceptance of the potential victim doctrine,56 the ECtHR has more recently found admissible cases introduced by NGOs acting as de facto representatives of – and with no formal link with – the affected individuals.57 Introducing public interest litigation into the judicial law-making of the ECtHR would require a bold revision of the admissibility criteria and the Rules of the Court. As a tool already used to defend indigenous peoples’ rights, labour, women’s and children’s rights with severe impact on the evolution of human rights norms, public interest litigation could also respond to the current rise of public health challenges and the need to hold states accountable for breaching not only individual rights but also health-driven public interests. Revisiting these rules sits comfortably with the living instrument58 doctrine of the Court and at the same time is not far from the perception of individual rights as described by the Court itself in the seminal Ireland v. the UK back in 1978.59 In the latter, the Court had maintained that although the primary purpose of the Convention system is to provide individual relief, its mission is also to determine issues on public-policy grounds in the common interest, thereby raising the general standards of protection of human rights and extending human rights jurisprudence throughout the community of Convention states.60 Should this division between individual and collective rights be maintained, public interest litigation, detached from the state as it is, might put flesh and bones on the emerging collective conception of the right to health. Public interest litigation would fill the enforcement gap of a deactivated right to health or an emerging collective one, whose recognition might not be feasible at the time since public health issues are traditionally very close to the heart of states’ sovereign powers.61

56  Klass and Others v. Germany App no 5029/71 (ECHR, 6 September 1978); Soering v. the United Kingdom App no 14038/88 (ECHR, 7 July 1989). 57  Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania App no. 47848/08 (ECHR, 17 July 2014) paras 111–114; Association Innocence en Danger and Association Enfance et Partage v. France, App nos 15343/15, 16806/15 (ECHR, 4 June 2020) paras 119–131. Compare with Yatama v. Nicaragua, Preliminary Objections, Merits, Reparations and Costs, Judgment, 23 June 2005, Inter-American Court of Human Rights. 58 See inter alia Loizidou v. Turkey App no. 15318/89 (ECHR, 23 March 1995) para 71. 59 Ireland v, UK App no. 5310/71 (ECHR, 20 March 2018). 60  Ibid., para 239. See also Farid Ahmadov, The Right of Actio Popularis before International Courts and Tribunals (Brill 2018). 61 See Jonathan Hackenbroich, Jeremy Shapiro and Tara Varma, Health Sovereignty: How to Build a Resilient European Response to Pandemics (European Council on Foreign Relations Policy Brief, June 2020)  accessed 24 November 2022.

268  Maria-Louiza Deftou Inevitably, the well-known question of the legitimacy of international tribunals arises, especially when litigating cases that involve severe scientific evidence. The recent COVID-19 crisis has brought to the fore such legitimacy concerns since both national and international courts around the globe are called upon to scrutinise national measures on the basis of scientific data that are rapidly overturned by new research raising severe societal resistance and doubt. However, this is not the first time that international bodies will be confronted with complex scientific issues, closely interconnected with legal questions, and definitely not the last one.62 Courts are thus in front of cases that are largely based on specific technical knowledge that the international judiciary is clearly lacking.63 This is also exacerbated by the scientific uncertainty that this type of dispute entails. On the other hand, the precious contribution of scientists to judicial decision-making is not enough since they cannot rule on disputes on the basis of international law norms. It is upon judges to do so and distinguish scientific data from legal issues to provide solid, convincingly substantiated reasoning.64 This strenuous task is more and more complex for human rights courts when it comes to cases that are built upon scientific evidence and yet have strong societal underpinnings (i.e., environmental cases, health-related cases, etc.). However, it is particularly in the absence of unproclaimed rights and respective enforcement mechanisms that international human rights tribunals can legitimately adjudicate health-related cases as human rights cases.65 As litigation on public health matters is expected to increase in the foreseeable future, perhaps rethinking the evidentiary role of WHO’s guidelines or recommendations, the method of appointing experts to the proceedings or even the procedure of taking evidence could strengthen the transparency and therefore, the legitimacy of international tribunals navigating into the turbulent waters of science.66

62  See, e.g., Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), Judgment, I.C.J. Reports 2014. 63  Dinah Shelton held with relation to environmental cases that also heavily rely on scientific evidence that ‘it is sometimes asserted that the problems are exacerbated by technical scientific issues, but arguably this is no more difficult than determining whether or not an individual was killed in selfdefence or arbitrarily executed by the police, or whether an individual was forcibly disappeared or fled to join an uprising, as the state asserts’. Dinah Shelton, ‘Legitimate and Necessary: Adjudicating Human Rights Violations Related to Activities Causing Environmental Harm or Risk’ (2015) 6 (2) Journal of Human Rights and the Environment 139, 151. 64 Makane Mbengue,  ‘Between Law and Science: A Commentary on the Whaling in the Antarctic Case’ (2015) 2 Questions of International Law 178. 65  Dinah Shelton, ‘Legitimate and Necessary: Adjudicating Human Rights Violations Related to Activities Causing Environmental Harm or Risk’ (2015) 6 (2) Journal of Human Rights and the Environment 139, 145. 66  Caroline Foster proposed the adoption of a more investigative approach of experts abandoning the more adversarial one. On similar grounds, Mbengue also suggests that the ICJ should appoint its own judges instead of examining the experts appointed by the parties serving as their counsels. See Caroline Foster, Science and the Precautionary Principle in International Courts and Tribunals: Expert Evidence, Burdens Of Proof and Finality (CUP 2011) 101; Caroline Foster, ‘New Clothes for the Emperor? Consultation of Experts by the International Court of Justice’ (2014) 5 Journal of

Balancing Public Interest  269 Even if the public interest litigation strategy fails to expand in the international realm, mainstreaming human rights in public health policymaking remains the only way forward to manage global health governance. Human rights law is a discipline that has a lot to do with global health inequities due to the inherent values underpinning its entire system: the quest for human dignity and equality for all. Human rights considerations cannot be absent from public health strategies deployed by a wide number of state and non-state actors, let alone from policies and recommendations fleshed out by global institutions interfering with public health.67 Repelling transborder threats to health (or of its underlying determinants) requires interstate cooperation apt to give collective responses since the degradation of health of small groups may have insalubrious effects on the international community as a whole.68 Such responses, though, cannot be viewed solely through the lens of medicine overstepping the normative backing of human rights. For decades, WHO staff was dominated by medical and public health professionals while human rights lawyers were absent from its activities and decision-making procedures. Hence, a reinforced role of a more functional WHO would not only add to the effective management of future health crises; it would also strengthen its credibility and impact through a more balanced and holistic guidance, necessary to both states and judicial organs in the decision-making procedures.69 Human rights considerations could thus guide more balanced decisions on the adequate protection of public health and also the social strategies targeted to the social recovery from infectious diseases or pandemics.70 Therefore, the involvement International Dispute Settlement 139; Makane Mbengue, ‘Between Law and Science: A Commentary on the Whaling in the Antarctic Case’ (2015) 2 Questions of International Law 178. 67 A rights-based approach to uphold health policies with greater equity represents a principle also endorsed in the recently adopted 2030 Agenda for Sustainable Development and Universal Health Coverage. UN General Assembly, Transforming Our World: The 2030 Agenda for Sustainable Development, 21 October 2015, UN Doc. A/RES/70/1. See Benjamin Mason Meier and Lawrence O. Gostin (eds), Human Rights in Global Health Rights-Based Governance for a Globalising World (Oxford University Press 2018); Judith Bueno de Mesquita, Anuj Kapilashrami and Benjamin Mason Meier, ‘Strengthening Human Rights in Global Health Law: Lessons from the COVID-19 Response’ (2021) 49 Journal of Law, Medicine & Ethics 328. 68 This shift towards shared responsibility and a solidarity-based duty to assist was also marked by the Committee of Social, Economic and Cultural Rights that elucidated in para 40 of its General Comment 14. 69 Rebekah Thomas and Veronica Magar, ‘Mainstreaming Human Rights across WHO’ in Benjamin Mason Meier and Lawrence O. Gostin (eds), Human Rights in Global Health Rights-Based Governance for a Globalising World (Oxford University Press 2018); Benjamin Mason Meier, Margherita Marianna Cinà and Lawrence O. Gostin, ‘Human Rights in Global Health Governance’ (2021) Health and Human Rights Journal accessed 24 November 2022. 70  Such a process might include prioritised access to appropriate diagnostic testing and emergency healthcare for marginalised groups, informative campaigns and human rights impact assessments examining the impacts of healthcare inequalities on vulnerable groups. See also European Committee of Social Rights, Statement on Covid 19 and Social Rights (European Social Charter, Council of Europe, 24 March 2021) p. 14 accessed 24 November 2022.

270  Maria-Louiza Deftou of social partners and civil society organisations in the programming, implementation or judicial review of these efforts is of paramount importance as it would improve political mobilisation and alleviate the tensions created by the ongoing conflict between (public) health-related rights, framed as individual rights, and the inherently collective dimension of public health. 10.6 Conclusion In this chapter, I attempted to untangle the complex interplay between human rights and public interest when public health considerations are involved. Opaque and confusing, the concept of public interest has definitely fed human rights conflicts as an overarching rationale for both interest-based and rights-based limitations of individual rights. When it comes to public health, health-related entitlements that increasingly interfere with public health concerns are still ‘nested’ within individual rights and need to be weighted with public interest-driven measures. Yet, the paradigm of public health judicial decision-making evidences the existence of a rights-based line of argumentation on both sides of this balancing exercise. This ostensibly appalling dead-end unpacks well-known dilemmas in human rights law between rights and interests, civil and social rights and individual and public health. That said, the restricted powers of the existing right to health along with its old-school outline as a social right was put at the centre of legal discussion on the recent COVID-19 pandemic and unravelled the very fabric of its traditional understanding. The state’s positive obligation to preserve public health goes hand in hand with its duty to secure the individual enjoyment of the right. It is exactly this duality that encourages its reconstruction. Or is it the lack of real judicial enforcement? This question becomes even more apposite in contemporary situations of globalisation of diseases. Admittedly, the COVID-19 public health crisis blatantly revealed the interdependence between the individual’s health and the protection of public health on a global scale. This chapter argues that a more holistic and collective understanding of the right to health, either presented as an individual claim before human rights courts benches or a state-driven interest, becomes indispensable for the solidification of such a right, individual or social. Meanwhile, integrating community-held health considerations – inherently connected to the ensurement of public health – into human rights discourse via political channels or judicial creativity could possibly outweigh the risk of acknowledging the state as the sole duty-bearer of upholding the collective enjoyment of public health. It appears that either the reconstruction of the non-transparent right to health71 or the adoption of a new norm, emancipated

71 Stefan Martini, ‘Strong New Branches to the Trunk: Realising the Right to Health Decentrally’ in Andreas von Arnauld, Kerstin von der Decken and Mart Susi (eds), The Cambridge Handbook of New Human Rights: Recognition, Novelty, Rhetoric (Cambridge University Press 2020).

Balancing Public Interest  271 from the older ‘umbrella’ rights, that meets the global health threats of today’s modern world, is – now more than ever – needed. Awaiting the enunciation of new rules, it could come as a surprise should public interest litigation, as it stands today, fail to find its way to supranational – global or regional – human rights systems. This might be an object of future judicial developments. Likewise, it could come as a surprise should human rights rhetoric be absent from the pressing pursuit of horizontal, collaborative responses that the global governance of health requires. In reconceiving the multifold linkages between public interest and human rights architecture, the achievements of the latter may and must be transferred into a new perception of the right to health to inform and clarify its contours and ensure its effective realisation. Bibliography Ahmadov F, The Right of Actio Popularis Before International Courts and Tribunals (Brill 2018). Alston P, ‘Economic and Social Rights’ in L Henkin and J Hargrove (eds), Human Rights: An Agenda For The Next Century (The American Society Of International Law Press 1994). Alvarez J E, ‘The WHO in the Age of the Coronavirus’ (2020) 114 (4) American Journal of International Law 578. Barak A, Proportionality: Constitutional Rights and Their Limitations (CUP 2012). Benvenisti E, ‘The WHO—Destined to Fail? Political Cooperation and the COVID-19 Pandemic’ (2020) 114 American Journal of International Law 588. Besson S, ‘The Egalitarian Dimension of Human Rights’ (2013) 136 Archiv für Rechts-und Sozialphilosophie, ARSP. Beiheft 19. Bickley S J, Chan H F, Skali A, et al., ‘How Does Globalisation Affect COVID-19 Responses?’ (2021) 17 Global Health 57. Bredimas A, The World Health Organisation and the Fight Against Epidemics/Pandemics: with Special Reference to the Coronavirus Crisis (Covid-19) (Sakkoulas Publications 2020) [in Greek]. Brems E, ‘Indirect Protection of Social Rights by the European Court of Human Rights’ in D Barak-Erez and A M Gross (eds), Exploring Social Rights: Between Theory and Practice (Hart Publishing 2007). Churchill R and Khaliq U, ‘The Collective Complaints System of the European Social Charter: An Effective Mechanism for Ensuring Compliance with Economic and Social Rights?’ (2004) 15 (3) European Journal of International Law 417. Cummings S L and Deborah L, Rhode L D, ‘Public Interest Litigation: Insights from Theory and Practice’ (2009) 36 Fordham Urban Law Journal 603. de Mesquita JB, Kapilashrami A and Mason Meier B, ‘Strengthening Human Rights in Global Health Law: Lessons from the COVID-19 Response’(2021) 49 Journal of Law, Medicine & Ethics 328. Ducoulombier P, ‘Conflicts Between Fundamental Rights and the European Court of Human Rights: An Overview’ in E Brems (ed), Conflicts Between Fundamental Rights (Intersentia 2008). Forster C M, Jivan V, ‘Public Interest Litigation and Human Rights Implementation: The Indian and Australian Experience’ (2008) 3 (1) Asian Journal of Comparative Law 143.

272  Maria-Louiza Deftou Foster C, Science and the Precautionary Principle in International Courts and Tribunals: Expert Evidence, Burdens of Proof and Finality (CUP 2011). Foster C, ‘New Clothes for the Emperor? Consultation of Experts by the International Court of Justice’ (2014) 5 Journal of International Dispute Settlement 139. Garner B (ed), Black’s Law Dictionary (7th edn, West Publishing Co. 1979). Gerards J, ‘Fundamental Rights and Other Interests: Should it Really Make a Difference’ in E Brems (ed), Conflicts Between Fundamental Rights (Intersentia 2008). Gifis S, Law Dictionary (4th edn, Barron’s Educational Services 1996). Gostin L O, Moon S and Mason Meier B, ‘Reimagining Global Health Governance in the Age of COVID-19’ (2020) 110 American Journal of Public Health 1615. Guadagno L, Migrants and the COVID-19 Pandemic: An Initial Analysis (IOM-UN Migration Report No.60 2021) accessed 24 November 2022. Hackenbroich J, Shapiro J and Varma T, Health Sovereignty: How to Build a Resilient European Response to Pandemics (European Council on Foreign Relations Policy Brief, June 2020) accessed 24 November 2022. Herencia Carrasco S, ‘Public Interest Litigation in the Inter-American Court of Human Rights: The Protection of Indigenous Peoples and the Gap Between Legal Victories and Social Change’ (2015) Revue Québécoise de Droit International 199–220. Jaichand V, ‘Public Interest Litigation Strategies for Advancing Human Rights in Domestic Systems of Law’ (2004) 1 Sur-International Journal on Human Rights 127. Lee K, Globalisation and Health: An Introduction (Palgrave Macmillan 2003). Letsas G, ‘Rescuing Proportionality’ in R Cruft, S M Liao, M Renzo (eds), Philosophical Foundations of Human Rights (OUP 2015). Letsas, G, A Theory of Interpretation of the European Convention on Human Rights (OUP 2007). Marks S P, ‘The Emergence and Scope of the Human Right to Health’ in J Zuniga, M Marks, P Stephen, L Gostin (eds), Advancing the Human Right to Health (OUP 2013). Martin P, ‘Defining and Refining the Concept of Practising in “the Public Interest”’ (2003) 28 (1) Alternative Law Journal 3. Martini S, ‘Strong New Branches to the Trunk: Realising the Right to Health Decentrally’ in A von Arnauld, K von der Decken and M Susi (eds), The Cambridge Handbook of New Human Rights: Recognition, Novelty, Rhetoric (CUP 2020). Mason Meier B and Mori M L, ‘The Highest Attainable Standard: Advancing a Collective Human Right to Public Health’ (2005) 37 Columbia Human Rights Law Review 101. Mason Meier B, Cinà M M, and Gostin L O, ‘Human Rights in Global Health Governance’ (2021) Health and Human Rights Journal accessed 24 November 2022. Mason Meier B. and Gostin L O (eds), Human Rights in Global Health Rights-Based Governance for a Globalising World (OUP 2018) Mbengue M, ‘Between Law and Science: A Commentary on the Whaling in the Antarctic Case’ (2015) 2 Questions of International Law 178. McHarg A, ‘Reconciling Human Rights and the Public Interest: Conceptual Problems and Doctrinal Uncertainty in the Jurisprudence of the European Court of Human Rights’(1999) 62 (5) The Modern Law Review 671. Morison J and Cochrane L, ‘Public Interest in R Grote’ F Lachenmann and R Wolfrum, R. (eds.), Max Planck Encyclopedia of Comparative Constitutional Law [MPECCoL]:

Balancing Public Interest  273 Published Under the Direction of the Max Planck Foundation for International Peace and the Rule of Law (OUP 2018). Nilsson A, ‘Is Compulsory Childhood Vaccination Compatible with the Right to Respect for Private Life? A Comment on Vavřička and Others v. the Czech Republic’ (2021) 28 (3) European Journal of Health Law 323. Nowak M, ‘Civil and Political Rights’ in J Symonides (ed), Human Rights: Concept and Standards (Routledge 2000). Peters A, Hollings M, Green B and Oladele Ogunniran M, ‘The WHO, the Global Governance of Health and Pandemic Politics’ (2020) 54 (6) Educational Philosophy and Theory 707. Rekosh E, ‘Who Defines Public Interest- Public Interest Law Strategies in Central and Eastern Europe’ (2005) 2 Sur – International Journal on Human Rights 167. Shelton D, ‘Legitimate and Necessary: Adjudicating Human Rights Violations Related to Activities Causing Environmental Harm or Risk’ (2015) 6 (2) Journal of Human Rights and the Environment 139. Smet S, Resolving Conflicts Between Human Rights (Routledge 2018). Span P, ‘More Than 80 Percent of Seniors Are Vaccinated. That’s “Not Safe Enough”’ New York Times (2 September 2021) accessed 24 November 2022. Steering Committee on Anti-Discrimination, Diversity and Inclusion (CDADI), COVID-19: An Analysis of the Anti-Discrimination, Diversity and Inclusion Dimensions in Council of Europe Member States (Council of Europe 2020) accessed 24 November 2022. Steiner H, Alston P, Goodman R, International Human Rights in Context (OUP 2008). Thomas R, Magar V, ‘Mainstreaming Human Rights Across WHO’ in B Mason Meier and L O Gostin(eds), Human Rights in Global Health Rights-Based Governance for a Globalizing World (OUP 2018). Tobin J, The Right to Health in International Law (OUP 2012). Toebes B, The Right to Health as Human Right in International Law (Intersentia, 1999). Tsakyrakis S, ‘Proportionality: An Assault on Human Rights?’ (2009) 7 (3) International Journal of Constitutional Law 468. Verdirame G, ‘Rescuing Human Rights from Proportionality’ in R Cruft, S M Liao, M Renzo (eds), Philosophical Foundations of Human Rights (OUP 2015). Vikarská Z, ‘Is Compulsory Vaccination Compulsory?’ (Verfassungsblog, 12 April 2021) accessed 24 November 2022. Ważyńska-Finck K, ‘Anti-Vaxxers Before the Strasbourg Court: Vavřička and Others v. Czech Republic’ (Strasbourg Observers Blog, 2 June 2021) accessed 24 November 2022. Webber G, ‘Proportionality, Balancing, and the Cult of Constitutional Rights Scholarship’(2010) 23 (1) Canadian Journal of Law & Jurisprudence 179. Xu X and Wilson G D, ‘On Conflict of Human Rights’ (2006) 5 Pierce Law Review 31.

11 Reparations for Human Rights Violations A Major Objective of Public Interest Litigation Dinah Shelton

11.1 Introduction In both domestic law and at the international level, public interest litigation often concerns human rights in order to seek accountability and obtain redress for violations of constitutional or internationally recognised rights. A commonly used English-language dictionary defines accountability as “liable to be required to give account, as of one’s actions of the discharge of a duty or trust”.1 “Liable” suggests a legal responsibility, including the possibility of being required to pay damages. A synonym given is “responsible”. This chapter will review the law of remedies, including accountability for perpetrators of human rights abuses in the context of public interest litigation. Nearly all international human rights bodies and institutions have contributed to the development of laws and practices to implement norms and law on accountability for victims of human rights violations, principally for abuses committed by state actors, but also, in a more limited manner, for violations perpetrated by non-state actors. The legal framework for such actions is contained in numerous treaty provisions that refer generally to obligations to redress harm. These provisions have been given further detail in resolutions and decisions of United Nations organs and treaty bodies. 11.2 The Right to a Remedy The right to a remedy, when rights are violated, is itself a right expressly guaranteed by global and regional human rights instruments. The 1948 Universal Declaration of Human Rights was followed, in 1965, by the United Nations Convention on the Elimination of All Forms of Racial Discrimination (CERD)2 and, in 1966, by the 1 The American Heritage Dictionary of the English Language (3rd edn, American Heritage Dictionary Publishing 1992). 2  UN General Assembly, International Convention on the Elimination of All Forms of Racial Discrimination, 21 December 1965. DOI:  10.4324/9781003433460-16

Reparations for Human Rights Violations  275 International Covenant on Civil and Political Rights (CCPR)3 and the International Covenant on Economic, Social and Cultural Rights (CESCR).4 The codification effort in the United Nations and its specialised agencies has resulted in a vast body of international human rights law that includes measures of accountability including the right to redress.5 Most texts guarantee both the procedural right of effective access to a fair hearing and the substantive right to reparations.6 Some international agreements explicitly call for the development of judicial remedies for the rights they guarantee.7 Article 2(3) of the International Covenant on Civil and Political Rights (ICCPR) requires that, in addition to effective protection of Covenant rights, states parties must ensure that individuals have accessible and effective remedies to vindicate those rights, appropriately adapted to take account of the special vulnerability of certain categories of person.8 In General Comment No. 31, replacing General Comment No. 3, the Human Rights Committee (hereinafter the Committee) affirmed the importance of states parties’ establishing appropriate judicial and administrative mechanisms to address claims of rights violations under domestic law, noting that the enjoyment of the rights recognised under the ICCPR can be effectively assured by the judiciary in different ways, including directly applying the ICCPR, applying comparable constitutional or other provisions of law or applying national law to conform to the provisions of the ICCPR.9 Administrative mechanisms are necessary to investigate allegations of violations promptly, thoroughly and effectively through independent and impartial bodies. National human rights institutions can also contribute to this end. Cessation of an ongoing violation is also an essential element of the right to an effective remedy. The Committee considers that the ICCPR generally entails appropriate compensation, but accountability can also involve restitution, rehabilitation and measures of satisfaction, such as public apologies, public memorials, guarantees of 3  UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966. 4 UN General Assembly, International Covenant on Economic, Social and Cultural Rights, 16 December 1966. 5  Other major United Nations human rights treaties include the UN General Assembly, Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948; UN General Assembly, Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979; UN General Assembly, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984; UN General Assembly, Convention on the Rights of the Child, 20 November 1989; UN General Assembly, International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, 18 December 1990; and the UN General Assembly, International Convention for the Protection of All Persons from Enforced Disappearance, 20 December 2006. 6  On access to justice, see Jeremy McBride, ‘Access to Justice and Human Rights Treaties’ (1998) 17 Civil Justice Quarterly 235. 7  UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, Art. 2 (3) (b). 8 Human Rights Committee, General Comment No. 31 The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, CCPR/C/21/Rev.1/Add. 13, 29 March 2004. 9 Ibid., para 15.

276  Dinah Shelton non-repetition and changes in relevant laws and practices, as well as bringing to justice the perpetrators of human rights violations.10 The Committee also holds that the right to an effective remedy may in certain circumstances require states parties to provide for and implement provisional or interim measures to avoid continuing violations and to immediately repair any harm that may have been caused by such violations. All states parties should provide information on the obstacles to the effectiveness of existing remedies in their periodic reports.11 The Convention on the Elimination of Racial Discrimination, Article 6, also contains broad guarantees of accountability including “protection” by national tribunals and other state institutions against any acts of racial discrimination, as well as the right to seek from such tribunals “just and adequate reparation or satisfaction” for any damage suffered as a result of such discrimination.12 The treaty leaves open the question of what forms of reparation or satisfaction are required, as well as the question of how broadly the term “victim” should be interpreted and who is liable for reparation or satisfaction.13 The reference to “protection” in CERD Article 6 seems to anticipate the use of injunctive or other preventive measures against discrimination, as well as compensation or other remedies for consequential damages. A similar provision is found in the Convention on the Elimination of All Forms of Discrimination against Women, whereby the states parties undertake to establish “legal protection of the rights of women on an equal basis with men” and to ensure through competent national tribunals and other public institutions “the effective protection of women against any act of discrimination”.14 Public interest litigation is the most common procedure to effectuate this. The International Convention for the Protection of All Persons from Enforced Disappearance15 sets forth the current formulation of the required measures of accountability. It references the right to truth, requirements of sustained investigation into acts of enforced disappearance16 and the prosecution and punishment of such acts.17 It stipulates that states must inform victims of the “truth regarding the circumstances of the enforced disappearance, the progress and results of the inves-

10 Ibid., para 16. 11 Ibid., paras 19–20. 12 UN General Assembly, International Convention on the Elimination of All Forms of Racial Discrimination, 21 December 1965, Art. 6. 13 The travaux preparatoires indicate that Art. 6 was intended to establish a right to restitution. During the drafting discussions on Art. 6 in the Commission for Human Rights, the representative of Austria proposed using the formula “just satisfaction” as appears in the ECHR. The Commission decided to maintain “just and adequate reparation or satisfaction”. See Natan Lerner, The UN Convention on the Elimination of All Forms of Racial Discrimination (Rockville Publishing 1980) 61. 14 UN General Assembly, Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979, Art. 2 (c). 15 UN General Assembly, International Convention for the Protection of All Persons from Enforced Disappearance, 20 December 2006. 16 Arts 3, 12, 17 (3) and 24 (3). 17 Arts 4–6 and 25.

Reparations for Human Rights Violations  277 tigation and the date of the disappeared person” and provide reparation.18 Each victim has the right to know the truth, the progress and the results of the investigation into the disappearance and the fate of the missing person. Article 24 (3) requires each state party to “take all appropriate measures to search for, locate and release disappeared persons and, in the event of death, to locate, respect and return their remains”. Article 24 goes on to specify that reparations include “material and moral damages and, where appropriate, other forms of reparation, such as: restitution; rehabilitation; satisfaction, including restoration of dignity and reputation; and guarantees of non-repetition”. 11.3 State Responsibility Well before its activities on reparations, the UN Human Rights Council and former Commission focused attention on combating impunity, adopting principles19 and commissioning a study20 on the topic. For its part, the United Nations International Law Commission (ILC)21 concluded its decades-long work on the law of state responsibility in 200122 when it adopted and forwarded to the UN General Assembly a text containing 59 Articles and a lengthy commentary. The General Assembly, by Resolution 56/83 of 12 December 2001, took note of the Articles and “commended” them to the attention of governments.23 The six Articles in ILC Part Two, Chapter I,24 laying out the legal consequences that follow from an internationally wrongful act, focus heavily on re-establishing

18 Art. 24 (2) and (5). 19 Sub-Commission on Human Rights, Question of the impunity of perpetrators of human rights violations (civil and political), E/CN.4/Sub.2/1997/20/Rev.1, 2 October 1997; UN Commission on Human Rights, Report of Diane Orentlicher, independent expert to update the Set of principles to combat impunity – Updated Set of principles for the protection and promotion of human rights through action to combat impunity, E/CN.4/2005/102/Add.1, 8 February 2005. 20 UN Commission on Human Rights, Independent study on best practices, including recommendations, to assist states in strengthening their domestic capacity to combat all aspects of impunity, by Diane Orentlicher, E/CN.4/2004/88, 27 February 2004. 21 This section is based on pp. 73–81 of Dinah Shelton, Remedies in International Human Rights Law (3rd edn, Oxford University Press 2017). 22 State responsibility was one of the fourteen topics originally selected by the Commission for “codification and progressive development” in 1949. International Law Commission, Yearbook of the International Law Commission 1949, UN Doc A/CN. 4/SER.A/1949; UN General Assembly, Request for the codification of the principles of international law governing State responsibility, A/ RES/799(VIII), 7 December 1953. Over the decades, there were five rapporteurs and 30 ILC reports on the issue. 23 UN General Assembly, Responsibility of States for internationally wrongful acts, A/RES/56/83, 12 December 2001. The ILC Articles are annexed to the resolution. 24 The six Articles in Chapter I address the following: the fact that an internationally wrongful act entails legal consequences (Art. 28); the responsible state’s duty to perform the obligation breached (Art. 29); the duty to cease a continuing wrong and provide guarantees of non-repetition, if appropriate (Art. 30); the duty of full reparation for injury caused (Art. 31); the irrelevance of internal law to reparations (Art. 32); and the scope of the obligation as owed to one or more states or to the international community as a whole.

278  Dinah Shelton and upholding the international rule of law, both in the interest of any injured state and of the international community at large. The Commentary highlights the multilateral context, expressing concern for “the maintenance of respect for international law and for the achievement of the goals which states advance through law-making at the international level”.25 Article 29 affirms that the breach of an obligation does not end a state’s duty to comply; the obligation continues, and the state must conform its conduct to the law. The placement and treatment of cessation represent a shift from earlier approaches to the law of state responsibility, which considered cessation and guarantees of non-repetition to be a form of satisfaction.26 Article 30 adds that if the wrongful act is continuing, it must cease and “if circumstances so require”, the state responsible must offer appropriate assurances and guarantees of non-repetition. Cessation is thus the first requirement imposed on a state committing a continuing wrongful act, even if the injured state does not demand compliance.27 Second, cessation is not subject to the limits of proportionality that the Articles impose on restitution and other forms of reparation. Compliance with the norm must be restored. The forms of reparation are listed in Article 34: restitution, compensation and satisfaction, either singly or in combination, accompanied in appropriate cases by interest. The purpose of compensation is identified as to indemnify quantifiable losses suffered by the injured state, not to punish. The principle of full (and no more) reparations is closely linked to the difficult issue of causality, tersely addressed in Article 31 (2), which provides that reparations are to be made for “[i]njury … caused by the intentionally wrongful act”. The complexities in dealing with issues of causation are not dealt with in the Articles, leaving it for courts and practitioners to develop appropriate tests for causation. The concern in practice is to allow full compensation for actual material and moral damages while excluding purely speculative claims for injury too indirect or remote to furnish a basis for imposing liability.28 25  International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, With Commentaries (Yearbook of the International Law Commission II, 2001) Chapter 1, General Principles, para 2. 26  One reason why cessation may have been seen as a form of reparation is that it is often indistinguishable from restitution; e.g. where individuals are wrongfully detained, cessation as well as restitution can only be accomplished by restoring the liberty of the detained persons. See e.g. Loayza Tamayo v. Peru, Merits, Judgment, Inter-American Court of Human Rights, 17 September 1997; United States Diplomatic and Consular Staff in Tehran, Judgment, I.C.J. Reports 1980. 27  International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, With Commentaries (Yearbook of the International Law Commission II, 2001) Art. 30, para 8. 28 See the Trail Smelter Arbitration (United States v. Canada), Award, 16 April 1938 and 11 March 1941, p. 1931; United Nations Compensation Commission Governing Council, Claims against Iraq (Category ‘B’ Claims), Recommendations Made by the Panel of Commissioners Concerning Individual Claims for Serious Personal Injury or Death, S/AC.26/1994/1, 14 April 1994; United Nations Compensation Commission Governing Council, Executive summary of the report and recommendations made by the Panel of Commissioners appointed to review the Well Blowout Control Claim, S/AC.26/1996/5, 18 December 1996.

Reparations for Human Rights Violations  279 Restitution is the first measure of reparation and requires it to be provided except where it would be “impracticable” or impossible, i.e., when restitution would place a burden “out of all proportion” to the harm on the responsible state. Where restitution is not provided or does not eliminate fully the consequences of the harm, the state responsible must compensate for any financially assessable damage, including loss of profits, that its wrongful act caused the injured state or its nationals.29 The scope of damages remains to be defined in practice, particularly the definition of “material” damage to property or other interests of the state and its nationals that is “assessable in financial terms”. In practice, litigants and judges are likely to turn to comparative law to determine what claims are capable of being financially assessed because new issues often develop in doctrine and national practice before being presented to an international tribunal. Satisfaction may consist of an acknowledgement of the breach, an expression of regret or apology30 or “another appropriate modality”31 that is neither disproportionate nor “humiliating” to the responsible state.32 It focuses on the wrongful conduct of the responsible state in order to provide a remedy for injuries that are not financially assessable, such as moral or legal injury. The Commentary notes that the remedy of satisfaction for non-material injury “is well-established in international law”.33 In practice, some international tribunals have characterised a judgment in favour of the injured party as sufficient satisfaction for the wrong that occurred, but in general satisfaction is more widely used as a remedy in human rights cases.34 29 Art. 36. The Commentary to Art. 36 specifies that compensation is intended to exclude moral damage to a state, which is the subject matter of satisfaction and dealt with in Art. 37. 30 Apologies are often demanded or offered when a state has committed a breach of international law. See e.g. S. S. ‘I’m Alone’ (Canada v. United States), Award, 30 June 1933 and 5 January 1935; Case concerning the difference between New Zealand and France concerning the interpretation or application of two agreements, concluded on 9 July 1986 between the two States and which related to the problems arising from the Rainbow Warrior Affair, Award, 30 April 1990; Vienna Convention on Consular Relations (Paraguay v. United States of America), Provisional Measures, Order of 9 April 1998, I.C.J. Reports 1998; LaGrand (Germany v. United States of America), Provisional Measures, Order of 3 March 1999, I.C.J. Reports 1999. 31 Art. 37 (2). Indeed, money is often awarded in satisfaction or investigation ordered to identify and prosecute the individual or individuals who committed the wrong. See e.g. Case concerning the difference between New Zealand and France concerning the interpretation or application of two agreements, concluded on 9 July 1986 between the two States and which related to the problems arising from the Rainbow Warrior Affair, Award, 30 April 1990; S. S. ‘I’m Alone’ (Canada v. United States), Award, 30 June 1933 and 5 January 1935. 32 Art. 37 (3). 33  International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, With Commentaries (Yearbook of the International Law Commission II, 2001) Art. 37, para 4. 34 In the Rainbow Warrior Arbitration, the Tribunal noted that “[t]here is a long established practice of states and international courts and tribunals of using satisfaction as a remedy or form of reparation (in the wide sense) for the breach of an international obligation. This practice relates particularly to the case of moral or legal damage done directly to the state, especially as opposed to the case of damage to persons involving international responsibilities”. Case concerning the difference

280  Dinah Shelton 11.4 UN Principles on Reparation After the ILC work on state responsibility, in 2005 the UN adopted Basic Principles and Guidelines on Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law.35 The Basic Principles were adopted with substantial revisions after lengthy study that concluded in 2005.36 The text consists of 27 principles and guidelines which the adopting resolution asserts contain no new law but rather establish methods for the implementation of existing legal obligations regarding accountability under international human rights law and international humanitarian law.37 Parts I and II concern the content and scope of the obligation to respect, ensure respect for and enforce international human rights and humanitarian law, including domestic incorporation or implementation of all human rights obligations as well as assuring effective and prompt access to justice and reparations. Part III concerns human rights and humanitarian law violations that constitute international crimes. It iterates the duty of states to investigate and, if evidence so warrants, to submit to prosecution or extradition those alleged to have committed crimes under

between New Zealand and France concerning the interpretation or application of two agreements, concluded on 9 July 1986 between the two States and which related to the problems arising from the Rainbow Warrior Affair, Award, 30 April 1990, pp. 272–273; see also Corfu Channel case, Judgment of April 9th, 1949, I.C.J. Reports 1949, pp. 35–36 (finding the declaration of a violation in itself appropriate satisfaction) and the Arrest Warrant of 1I April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, I.C.J. Reports 2002, p. 40 (finding by the court of international responsibility deemed satisfaction for the moral injury suffered by the Congo). The practice of construing a favourable judgment as adequate satisfaction was for a long period a rather standard practice of the European Court of Human Rights. 35  UN General Assembly, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, A/RES/60/147, 21 March 2006. 36  UN Commission on Human Rights, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, E/CN.4/RES/2005/35, 19 April 2005; UN General Assembly, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, A/RES/60/147, 21 March 2006. Germany spoke against the adoption of the Guidelines and abstained from voting on the resolution before the Commission, claiming the text was an inaccurate reflection of customary international law and should not have relied on rules of state responsibility for individual claims. See UN Commission on Human Rights, Summary Record of the 57th Meeting, E/CN.4/2005/SR.57, 29 April 2005, paras 38–39. 37  UN Commission on Human Rights, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, E/CN.4/RES/2005/35, 19 April 2005, Principle 21. In the Barrios Altos case (Chumbipuma Aguirre et al. v. Peru), Judgment, Inter-American Court of Human Rights, 14 March 2001, para 40, the Inter-American Court of Human Rights approved the agreement signed by the state and the victims wherein the state recognised its obligation to provide diagnostic procedures, medicines, specialised aid, hospitalisation, surgeries, labouring, traumatic rehabilitation and mental health.

Reparations for Human Rights Violations  281 international law. Part V refers to gross violations of human rights and serious violations of humanitarian law that are not criminal in nature. 11.5 UN Experts UN expert committees and rapporteurs have also addressed the broad subjects of accountability and remedies on issues within the scope of their mandates. The Special Rapporteur on extrajudicial, summary or arbitrary executions and armed non-state actors (ANSA) did so in her report of 2018 on protection of the right to life.38 The Special Rapporteur noted that international human rights law complements the existing international legal regime to hold ANSAs to account and she proposed a framework for doing so. She considered the obligation to investigate as particularly important in giving practical effect to the duties to respect and protect the right to life. Insofar as compensation and other reparations are concerned, she found the issue of “remedies and reparations for human rights violations by ANSAS … challenging, both from a procedural and substantive standpoint”.39 She suggested that the framework of Transitional Justice may constitute an important opportunity for new developments. She cited favourably several examples of what might be done in practice, such as the International Commission of Inquiry on Darfur, which emphasised that Sudan as well as rebels are responsible to pay compensation for their crimes in Darfur, whether or not the perpetrators are identified and punished.40 A compensation commission was envisaged in the 2006 peace agreements.41 Collective reparations were recommended as a way to make amends for rights violations that affect entire communities, bound together by a common identity, experience or form of violation.42 Other examples cited include rulings from the Inter-American Court of Human Rights (IACtHR) and the Extraordinary Chambers in the Courts of Cambodia (ECCC) which she found “may be useful models for violations by ANSAs”.43

38 Human Rights Council, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions on armed non-State actors: the protection of the right to life, A/HRC/38/44, 5 June 2018. 39 Ibid., para 89. 40 International Law Commission, Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, 25 January 2005, para 591. 41 The nature of this comment as advice on implementation is shown by her remark that “Even though [this commission] was not established, this may still constitute an example for future reference”. 42 International Centre for Transitional Justice, The Rabat Report: The Concept and Challenges of Collective Reparations (12–14 February 2009) accessed 16 December 2022. 43 Human Rights Council, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions on armed non-State actors: the protection of the right to life, A/HRC/38/44, 5 June 2018, para 93.

282  Dinah Shelton Directly addressing the need for reparations, the Human Rights Council adopted resolution 18/7 on 29 September 201144 by the terms of which it decided to appoint, for a period of three years, a Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence. In 2017 and again in 2020, the Council extended this mandate for a further period of three years.45 The successive rapporteurs have been active since the beginning of their mandates in issuing reports, making on-site visits and responding to communications. The techniques mandated for the Special Rapporteur included providing technical assistance or advisory services to states; gathering relevant information on national situations, including on normative frameworks, national practices and experiences (such as truth and reconciliation commissions and similar mechanisms) relating to the promotion of truth, justice, reparation and guarantees of nonrecurrence in addressing gross violations of human rights and serious violations of international humanitarian law; and studying trends, developments and challenges and to make recommendations thereon. Further, the Special Rapporteur was asked to identify, exchange and promote good practices and lessons learned, as well as to identify potential additional elements with a view to recommending ways and means to improve and strengthen the promotion of truth, justice, reparation and guarantees of nonrecurrence. This meant making recommendations about judicial and non-judicial measures when designing and implementing strategies, policies and measures for addressing gross violations of human rights and serious violations of international humanitarian law. The Special Rapporteur was explicitly given the authority to make on-site visits, including giving prompt responses to invitations from governments. In 2019, the new Special Rapporteur on the topic, Fabian Salvioli, presented a report on practical experiences of domestic reparation programmes.46 As he notes, in Council resolution 36/7, he was requested to gather information on national practices and experiences, to study trends, developments and challenges, to promote good practices and lessons learned and to integrate a victim-centred approach.47 He therefore assessed the conceptual and legal framework, lessons learned and selected challenges on the issue, leaving aside for the time being matters of restitution and satisfaction. He argued that domestic reparation programmes are the most effective tool for victims of gross human rights violations and serious violations of humanitarian law to receive reparation. The programmes already established have dealt both with atrocities committed during repression, as in Argentina, Chile, Iraq or

44 Human Right Council, Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, A/HRC/RES/18/7, 13 October 2011. 45 Human Rights Council, Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, A/HRC/RES/36/7, 5 October 2017. 46 Human Rights Council, Promotion of truth, justice, reparation and guarantees of non-recurrence, Report of the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, A/HRC/42/45, 11 July 2019. 47 Ibid., para 31.

Reparations for Human Rights Violations  283 Morocco, or during conflict, as in Bosnia and Herzegovina, Colombia, Guatemala, Iraq or Sierra Leone. The Council resolutions emphasise the importance of adopting a comprehensive approach in the transitional justice process which incorporates the full range of judicial and non-judicial measures (including, among others, individual prosecutions, reparations, truth-seeking, institutional reform and vetting of public employees and officials). The Human Rights Council calls upon all Governments to cooperate with and assist the Special Rapporteur in the discharge of his or her mandate, to provide him or her with all the necessary information requested by him or her and to give serious consideration to responding favourably to his or her requests to visit their country in order to enable him or her to fulfil his or her duties effectively. The mandate of the five-member United Nations Working Group on Arbitrary Detention is to investigate allegations of individuals being deprived of their liberty in an arbitrary way or inconsistently with international human rights standards and to recommend remedies such as release from detention and compensation, when appropriate. The Working Group held its 89th session from 23 to 27 November 2020. During the session, the Working Group adopted 32 opinions concerning deprivation of liberty in 21 countries.48 Also in 2020, the expert group issued Deliberation No. 10, which identifies comprehensive reparations to which victims of arbitrary deprivation of liberty are entitled.49 The Committee recommended that states promote comprehensive reparations, including material and symbolic reparations on an individual and collective basis, as well as providing priority access to services. The Working Group listed rehabilitation as a separate heading of reparation and called for it to include medical, psychological and other care, and whatever legal and social services the victim may require. Such rehabilitation measures should be available, accessible and culturally acceptable,50 meaning medical and psycho48 United Nations Working Group on Arbitrary Detention, Opinions adopted at the 89th session, 18–22 November 2020 accessed 16 December 2022. 49 Human Rights Council, Report of the Working Group on Arbitrary Detention, Annex I: Deliberation No. 10 on reparations for arbitrary deprivation of liberty, A/HRC/45/16, 24 July 2020. Previously, the Working Group adopted in 2015 Basic Principles and Guidelines on access to justice for anyone deprived of their liberty, based on international law, standards and recognised good practice, and intended to provide states with guidance on fulfilling, in compliance with international law, their obligation to avoid the arbitrary deprivation of liberty. In 2016, the Working Group introduced a new procedure to follow up on the implementation of the opinions it adopts. In accordance with that procedure, states must, within six months of the date of the transmission of the opinion, report to the Working Group on the implementation of the opinion, including on whether reparations have been made to the victim. See Human Rights Council, Report of the Working Group on Arbitrary Detention, A/HRC/36/37, 19 July 2017, paras 10–11. 50 Committee on Economic, Social and Cultural Rights, General Comment No. 14 (2000) The right to the highest attainable standard of health (article 12 of the International Covenant on Economic, Social and Cultural Rights), E/C.12/2000/4, 11 August 2000, para 12. See also UN Committee Against Torture, General Comment No. 3 (2012) on the implementation of Article 14 by states parties, CAT/C/GC/3, 13 December 2012, para 32.

284  Dinah Shelton logical care should be free of charge and be provided immediately, adequately and effectively, in a place close to the victim’s residence. Consent of the victim to receive such treatment and services is required at all times. Medication should be provided free of charge, as well, and treatments must take into account the circumstances and needs of the victim. Treatment on an individual, family or collective basis should also be provided.51 Satisfaction measures emphasise accountability and may include commemorations and homages or tributes to victims; public apologies; the verifications of facts; public and complete disclosure of the truth; assistance in the recovery, identification, return and reburial of bodies in accordance with the expressed or presumed wish of the victims; as well as judicial and administrative penalties for those responsible. Other means of satisfaction include the publication in national newspapers and on websites, national radio and television broadcasts of the summaries of court resolutions in which the innocence of the victim or the arbitrariness of the deprivation of liberty is acknowledged.52 The victim must be involved in the design of these measures.53 Satisfaction may also involve the granting of study scholarships for either direct or indirect victims of arbitrary deprivation of liberty;54 public acts acknowledging responsibility, including the placement of commemorative plaques;55 and the obligation to carry out comprehensive, impartial, effective and prompt criminal and/or administrative investigations in order to prosecute and punish those responsible for the arbitrary deprivation of liberty.56

51 Ibid. 52 Since 2018, the Working Group on Arbitrary Detention has included in its opinions the request that states disseminate widely the opinions adopted. 53 Norín and others v. Chile, Merits, Reparations and Costs, Judgment, Inter-American Court of Human Rights, 29 May 2014; García Asto and Ramírez v. Peru, Preliminary Objections, Merits, Reparations and Costs, Order, Inter-American Court of Human Rights, 25 November 2005; López Álvarez v. Honduras, Merits, Reparations and Costs, Judgment, Inter-American Court of Human Rights, 1 February 2006. 54 Yarce and otras v. Colombia, Merits, Reparations and Costs, Judgment, Inter-American Court of Human Rights, 22 November 2016. 55 Ruano Torres and others v. El Salvador, Merits, Reparations and Costs, Judgment, Inter-American Court of Human Rights, 5 October 2015. 56 Since 2018, the Working Group on Arbitrary Detention has included a standard paragraph in its opinions in which it urges the Government concerned to ensure a full and independent investigation into the circumstances surrounding the arbitrary deprivation of liberty of the victim and to take appropriate measures against those responsible for the violation of the victim’s rights. See Chaparro Álvarez and Lapo Íñiguez v. Ecuador, Preliminary Objections, Merits, Reparations and Costs, Judgment, Inter-American Court of Human Rights, 21 November 2007; and López Álvarez v. Honduras, Merits, Reparations and Costs, Judgment, Inter-American Court of Human Rights, 1 February 2006. See also Human Rights Committee, Albert Womah Mukong v. Cameroon, Views on Communication No. 458/1991, CCPR/C/51/D/458/1991, 10 August 1994.

Reparations for Human Rights Violations  285 11.6 UN Jurisprudence In General Comments,57 recommendations58 and jurisprudence, human rights treaty bodies have also opined on the obligations to provide accountability and remedies to victims. Some advice concerns the duties to investigate, prosecute and punish violators.59 Treaty bodies have also recommended specific measures to ensure victim participation in the processes related to reparations. The Human Rights Committee, for example, has established that the right to participate in the conduct of public affairs covers all aspects of public administration, including the formulation and implementation of policy at the international, national, regional and local levels.60 Other treaty bodies have recalled the critical importance of participation and consultation with specific groups and individuals in legislative processes and the design of public policies, action plans and strategies at the national, regional or local level, including recommendations on the development of guidelines for public consultation and participation. International human rights instruments and treaty bodies also refer specifically to participation by victims and civil society in transitional justice processes. The Human Rights Committee, for example, urged Canada to implement, in consultation with indigenous people, the recommendations of the Truth and Reconciliation Commission with regard to the Indian residential schools.61 The Committee on the Elimination of Racial Discrimination expressed concern and presented recommendations to Peru relative to the delays in the implementation of the comprehensive collective reparations plan, particularly with regard to indigenous peoples who were victims of the armed conflict between 1990 and 2000, and the lack of proper participation by such persons in developing and implementing reparation programmes.62

57  Human Rights Committee, General Comment No. 31 The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, CCPR/C/21/Rev.1/Add. 13, 29 March 2004 (reminding states party to the CCPR of their obligation to provide remedies in the event of a breach). 58 See, e.g., Human Rights Committee, Concluding observations on the sixth periodic report of the Dominican Republic, CCPR/C/DOM/CO/6, 27 November 2017; UN Committee Against Torture, Concluding observations on the Seventh Periodic Report of Guatemala, CAT/C/GTM/CO/7, 26 December 2018, paras 28–29. 59 On the duty to investigate and prosecute, see, for example, Velásquez Rodríguez Case, Merits, Judgment, Inter-American Court of Human Rights, 29 July 1988; and Aksoy v. Turkey App No. 21987/93 (ECHR, 18 December 1996). On the right to truth, see Human Rights Committee, María del Carmen Almeida de Quinteros et al. V. Uruguay, Interim decision after admissibility decision, Communication No. 107/1981, 15 October 1982; Cyprus v. Turkey App No. 25781/94 (ECHR, 10 May 2001). 60  Human Rights Committee, General comment No. 25 (1996) on participation in public affairs and the right to vote, CCPR/C/21/Rev.1/Add.7, 12 July 1996. 61 See Human Rights Committee, Concluding observations on the sixth periodic report of Canada, CCPR/C/CAN/CO/6, 13 August 2015. 62  See Committee on the Elimination of Racial Discrimination, Concluding observations on the eighteenth to twenty-first periodic reports of Peru, CERD/C/PER/CO/18-21, 25 September 2014.

286  Dinah Shelton The Committee against Torture (CAT Committee) issued a general comment specifically on the content and scope of obligations for states parties under Article 14 of the Convention against Torture.63 The Committee considers that Article 14 applies to all victims of torture as well as to victims of acts of cruel, inhuman or degrading treatment or punishment. The term “redress” is used expansively to encompass both an “effective remedy”64 and “reparation”. It “therefore entails restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition and refers to the full scope of measures required to redress violations”. The CAT Committee relies on the UN’s five forms of reparation (restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition) as recognised in international law and practice and outlined in the Basic Principles and Guidelines.65 These confirm that reparation must be adequate, effective and comprehensive. In this regard, the Committee reminds states that in the reparative measures provided or awarded to a victim of torture or ill-treatment, the specificities and circumstances of each case must be taken into consideration, tailored to the particular needs of the victim and proportionate to the gravity of the violations committed against them.66 The Committee emphasises that reparation also has an inherent effect in preventing or deterring future violations. In addressing each form of reparation, the CAT Committee first reaffirms that restitution aims to re-establish the victim in his or her pre-violation situation. In cases where the victim believes that, due to the nature of the violation, restitution is not possible, the state must afford full access to redress.67 Importantly, because monetary compensation is inadequate to remedy acts of torture, the Committee insists that the provision of compensation alone to victims is not sufficient to comply with the requirements of Article 14.68 Nonetheless, such compensation awarded to a victim should be sufficient to compensate for any economically assessable damage resulting from torture or ill-treatment.69 Rehabilitation for victims of torture or other violations of the Convention should be holistic and include medical and psychological care as well as legal and social services. Rehabilitation, for the purposes of this general comment, refers to the

63 As noted earlier, Art. 1 in the Convention against Torture requires each party to “ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible”. 64 The procedural aspect of this requires access to a non-discriminatory, prompt and effective process that can provide the requisite substantive redress. UN Committee Against Torture, General Comment No. 3 (2012) on the implementation of Article 14 by states parties, CAT/C/GC/3, 13 December 2012, paras 19–36. 65  UN General Assembly, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, A/RES/60/147, 21 March 2006. 66  UN Committee Against Torture, General Comment No. 3 (2012) on the implementation of Article 14 by states parties, CAT/C/GC/3, 13 December 2012, para 6. 67  Ibid., para 8. 68 Ibid., para 9. 69 Ibid.

Reparations for Human Rights Violations  287 restoration of function or the acquisition of new skills required as a result of the changed circumstances of a victim in the aftermath of torture or ill-treatment. Its aims are to enable the maximum possible self-sufficiency and function for the individual concerned and may involve adjustments to the person’s physical and social environment. The CAT Committee emphasises that the duty to provide the means for “as full rehabilitation as possible” refers “to the need to restore and repair the harm suffered by a victim whose life situation, including dignity, health and selfsufficiency may never be fully recovered as a result of the pervasive effect of torture”; this duty does not depend on available resources and may not be postponed.70 To fulfil it, each state party should adopt a long-term, integrated approach and ensure that specialist services for victims of torture or ill-treatment are available, appropriate and readily accessible, basing the processes and services afforded on the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Istanbul Protocol).71 The comment further recommends to states practical measures of implementation, including legislation to establish concrete mechanisms and programmes of rehabilitation for victims of torture or ill-treatment, to be provided as soon as possible following an assessment by qualified independent medical professionals. This Article 14 obligation can be fulfilled through the direct provision of state rehabilitative services, in relevant languages, or through the funding of private medical, legal and other facilities, including those administered by non-governmental organisations (NGOs); in either situation, states should establish assessment systems for the rehabilitation programmes and services, including by using appropriate indicators and benchmarks. The remedy of satisfaction requires, in addition to prompt investigation and criminal prosecution, any or all of the following: effective measures aimed at the cessation of continuing violations; verification of the facts and full and public disclosure of the truth to the extent that such disclosure does not cause further harm or threaten the safety and interests of the victim, the victim’s relatives, witnesses, or persons who have intervened to assist the victim or prevent the occurrence of further violations; the search for the whereabouts of the disappeared, for the identities of the children abducted, and for the bodies of those killed, and assistance in the recovery, identification, and reburial of victims’ bodies in accordance with the expressed or presumed wish of the victims or affected families; an official declaration or judicial decision restoring the dignity, the reputation and the rights of the victim and of persons closely connected with the victim; judicial and administrative sanctions against persons liable for the violations; public apologies, including acknowledgement of the facts and acceptance of responsibility; commemorations and tributes to the victims.72

70  Ibid., para 12. 71 Ibid., para 13. 72  Ibid., para 16.

288  Dinah Shelton Finally, guarantees of non-repetition call for the state to adopt measures to combat impunity, such as reaffirming to officials the absolute ban on torture, strengthening the judiciary and rules of due process, independent monitoring of places of detention and training law enforcement officials and members of the military.73 11.7 Other Issues in Public Interest Litigation Although the UN bodies have dealt with most questions concerning remedies and reparations, other issues can arise in public interest litigation. Some of these have been discussed by the International Criminal Court and by regional human rights mechanisms. These include how to award damages or other forms of reparations to large groups or the public at large, and how the interests of the public at large can be taken into account when awarding reparations. The Inter-American Commission and Court of Human Rights have dealt with these issues in several innovative ways. First, in cases involving indigenous peoples, the Inter-American Court has awarded various measures of reparation to entire communities, providing them with the right and duty to distribute them among the members of the community. In other cases, the court has required the state to take measures that benefit the public at large, such as constructing memorials, providing public apologies or publishing the court’s judgment finding human rights violations. Public trials, conviction and punishment of perpetrators are also deemed to be in the public interest. 11.8 Summary and Evaluation The obligation to provide an ever-lengthening set of reparations has been reinforced and elaborated by nearly all special procedures and UN treaty bodies over recent decades. In performing this task, the many groups and individuals involved have drawn upon implementation practices and guidelines at all levels of governance, from domestic programmes and laws to regional human rights bodies to references across various UN organs. Much has been learned from this widespread practice of cross-referencing and the law on reparations has advanced in many respects due to this practice. The judgments of regional courts, not dealt with in this chapter, deserve particular attention, as they have been some of the most progressive in addressing the nature and extent of reparations due. A look at the comments and recommendations to states concerning the implementation of reparations indicates that apologies and acknowledgements tend to result in the most compliance, with compensation often forthcoming, but only after long delays. The most difficult measure of reparation, linked to guarantees of nonrepetition, is the requirement of investigation, prosecution and punishment. This is unfortunate and understandable because in many instances the perpetrators are high-ranking officials or members of security forces. Holding them accountable is a delicate business at best in most countries. The advent of the International

73  Ibid.

Reparations for Human Rights Violations  289 Criminal Court has not proven to be a panacea, despite its reparations power and its trust fund for victims, given the lack of cooperation by states and its weak ability to obtain those alleged to have committed crimes within its jurisdiction. In sum, there is still much work to be done to implement the international law requiring accountability. Public interest litigation can be an important tool to achieve this goal. Bibliography Treaties and Case Law Arbitral Awards, Trail Smelter Arbitration (United States v. Canada), Award, 16 April 1938 and 11 March 1941. ———, S. S. “I’m Alone” (Canada v. United States), Award, 30 June 1933 and 5 January 1935. ———, Case Concerning the Difference Between New Zealand and France Concerning the Interpretation or Application of Two Agreements, Concluded on 9 July 1986 Between the two States and Which Related to the Problems Arising from the Rainbow Warrior Affair, Award, 30 April 1990. Committee on Economic, Social and Cultural Rights, General Comment No. 14 (2000) The Right to the Highest Attainable Standard of Health (article 12 of the International Covenant on Economic, Social and Cultural Rights), E/C.12/2000/4, 11 August 2000. Committee on the Elimination of Racial Discrimination, Concluding Observations on the Eighteenth to Twenty-First Periodic Reports of Peru, CERD/C/PER/CO/18-21, 25 September 2014. European Court of Human Rights, Aksoy v. Turkey App No. 21987/93 (ECHR, 18 December 1996). ———, Cyprus v. Turkey App No. 25781/94 (ECHR, 10 May 2001). Human Rights Committee, General Comment No. 31 ‘The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, CCPR/C/21/Rev.1/Add. 13, 29 March 2004. ———, María del Carmen Almeida de Quinteros et al. V. Uruguay, Interim Decision After Admissibility Decision, Communication 107/1981, 15 October 1982. ———, Albert Womah Mukong v. Cameroon, Views on Communication 458/1991, CCPR/ C/51/D/458/1991, 10 August 1994. ———, General Comment No. 25 (1996) on Participation in Public Affairs and the Right to Vote, CCPR/C/21/Rev.1/Add.7, 12 July 1996. ———, General Comment No. 31 ‘The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, CCPR/C/21/Rev.1/Add. 13, 29 March 2004. ———, Concluding Observations on the Sixth Periodic Report of Canada, CCPR/C/CAN/ CO/6, 13 August 2015. ———, Concluding Observations on the Sixth Periodic Report of the Dominican Republic, CCPR/C/DOM/CO/6, 27 November 2017. Human Rights Council, Special Rapporteur on the promotion of Truth, Justice, Reparation and Guarantees of Non-Recurrence, A/HRC/RES/18/7, 13 October 2011. ———, Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of Non-Recurrence, A/HRC/RES/36/7, 5 October 2017. ———, Report of the Working Group on Arbitrary Detention, A/HRC/36/37, 19 July 2017.

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Reparations for Human Rights Violations  291 ———, Report of Diane Orentlicher, independent Expert to Update the Set of Principles to Combat Impunity - Updated Set of Principles for the Protection and Promotion of Human Rights Through Action to Combat Impunity, E/CN.4/2005/102/Add.1, 8 February 2005. ———, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, E/CN.4/RES/2005/35, 19 April 2005. ———, Summary Record of the 57th Meeting, E/CN.4/2005/SR.57, 29 April 2005. UN Compensation Commission Governing Council, Claims against Iraq (Category ‘B’ Claims), Recommendations Made by the Panel of Commissioners Concerning Individual Claims for Serious Personal Injury or Death, S/AC.26/1994/1, 14 April 1994. ———, Executive Summary of the Report and Recommendations Made by the Panel of Commissioners Appointed to Review the Well Blowout Control Claim, S/AC.26/1996/5, 18 December 1996. UN General Assembly, Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948 ———, Request for the Codification of the Principles of International Law Governing State Responsibility, A/RES/799(VIII), 7 December 1953. ———, International Convention on the Elimination of All Forms of Racial Discrimination, 21 December 1965. ———, International Covenant on Civil and Political Rights, 16 December 1966. ———, International Covenant on Economic, Social and Cultural Rights, 16 December 1966. ———, Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979. ———, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984. ———, Convention on the Rights of the Child, 20 November 1989. ———, International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, 18 December 1990. ———, Responsibility of States for internationally wrongful acts, A/RES/56/83, 12 December 2001. ———, International Convention for the Protection of All Persons from Enforced Disappearance, 20 December 2006. ———, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, A/RES/60/147, 21 March 2006. UN Working Group on Arbitrary Detention, Opinions Adopted at the 89th session, 18–22 November 2020 accessed 16 December 2022.

Secondary Sources The American Heritage Dictionary of the English Language (3rd edn, American Heritage Dictionary Publishing 1992). International Centre for Transitional Justice, The Rabat Report: The Concept and Challenges of Collective Reparations (12–14 February 2009) accessed 16 December 2022. Lerner N, The UN Convention on the Elimination of All Forms of Racial Discrimination (Rockville Publishing 1980). McBride J, Access to Justice and Human Rights Treaties (1998) 17 Civil Justice Quarterly 235. Shelton D., Remedies in International Human Rights Law (3d edn, OUP 2017).

Part VI

Public Interest Litigation and Climate Change



12 Ocean-Climate Litigation Enforcing Public Interest Against All Odds Vonintsoa Rafaly

12.1 Introduction Climate change ‘is the mother of all policy challenges’1 at the global, regional and national levels. For decades, the international community has tried to find a way to mitigate this phenomenon. New milestones and states’ commitments were defined through regular meetings. Still, climate change’s effects are expanding. These effects put the oceans under unprecedented pressure and seriously threaten present and future generations’ life conditions. Therefore, mitigating climate change’s effects on the oceans is a common concern of mankind and protecting the marine environment is a public good.2 The consideration of the ocean-climate nexus is of public interest. On the one hand, it relates to the general interest, going beyond the interest shared by all contracting parties in climate-related instruments.3 On the other hand, it concerns an interest that transcends individual states’ interests and encompasses the interests of mankind.4 The existence of multilateral treaties striving for universal protection of the marine environment and climate change mitigation reflects the importance of these issues for the public interest.5 One alternative to mitigate climate change’s adverse effects on oceans is the recourse to public interest litigation to reinforce states’ obligations. The climate regime is ambivalent regarding litigation. On the one hand, the rules and obligations outlined in the United Nations Framework on Climate Change (UNFCCC), the Kyoto Protocol and the Paris Agreement differ in their

1 Daniel Bodansky, ‘The Role of the International Court of Justice in Addressing Climate Change: Some Preliminary Reflections’ (2017) 49 Arizona State Law Journal 689, 712. 2 André Nollkaemper, ‘International Adjudication of Global Public Goods: The Intersection of Substance and Procedure’ (2012) 23 (3) European Journal of International Law 769, 770. 3  Rüdiger Wolfrum, ‘Enforcing Community Interests Through International Dispute Settlement: Reality or Utopia?’ in Ulrich Fastenrath et al. (eds), From Bilateralism to Community Interest: Essays in Honour of Judge Bruno Simma (Oxford University Press 2011) 1133. 4 Dinah Shelton, ‘Common Concern of Humanity’ (2009) 39 Environmental Policy and Law 83; André Nollkaemper, ‘International Adjudication of Global Public Goods: the Intersection of Substance and Procedure’ (2012) 23 (3) European Journal of International Law 769, 776. 5  Rüdiger Wolfrum, ‘Enforcing Community Interests Through International Dispute Settlement: Reality or Utopia?’ in Ulrich Fastenrath et al. (eds), From Bilateralism to Community Interest: Essays in Honour of Judge Bruno Simma (Oxford University Press 2011) 1134. DOI:  10.4324/9781003433460-18

296  Vonintsoa Rafaly ‘bindingness’.6 Some authors consider that the climate regime has the potential to set a context for interpreting obligations in other existing regimes.7 Therefore, bringing a claim before international courts and tribunals (ICTs) should be carefully considered. Additionally, the climate regime lacks an effective dispute settlement procedure. It is based on consultation and negotiation, requiring states to reach an agreement through peaceful means and provides litigation for ultimate recourse as a dispute settlement.8 Therefore, litigation concerning the interpretation and application of Part XII United Nations Convention on the Law Of the Sea (UNCLOS) in light of state commitments under the climate regime is, in practice, an alternative to reconcile the two regimes. Nor does the climate regime or the law of the sea deal directly with the oceanclimate nexus. However, studies explored the relationship between these two regimes to ensure better marine environment protection. The unique character of UNCLOS’s provisions – flexible and general – has permitted the Convention to develop and be ‘responsive enough to deal with emerging problems as a living instrument’.9 This is especially the case of Part XII of UNCLOS relating to the protection of the marine environment.10 This study explores to what extent litigating the ocean-climate nexus through UNCLOS can strengthen states’ commitments to mitigate climate change. The first part of the study will analyse the consideration of climate change–related matters in law of the sea (LOS) litigation. The second part will shift to the opportunity of such a litigation system. The last part will elaborate on the advisory opinion as a first step in adjudicating climate change–related matters under UNCLOS.

 6  See Daniel Bodansky, ‘The Legal Character of the Paris Agreement’ (2016) 25 (2) Review of European, Comparative & International Environmental Law 142. A table categorising the obligations under climate change law according to their bindingness can be found in Lavanya Rajamani, ‘The 2015 Paris Agreement: Interplay Between Hard, Soft and Non-Obligations’ (2016) 28 (2) Journal of Environmental Law 337; Daniel Bodansky, Jutta Brunnée and Lavanya Rajamani (eds), International Climate Change Law (Oxford University Press 2017).  7 This is the case of the obligation of conduct, for example. See Alan Boyle, ‘Litigating Climate Change under Part XII of the LOSC’ (2019) 34 (3) International Journal of Marine and Coastal Law 458, 470.   8 United Nations Framework Convention on Climate Change, 20 January 1994, Article 14; Kyoto Protocol to the United Nations Framework Convention on Climate Change, 11 December 1997, Article 18; The Paris Agreement, 22 April 2016, Article 24.   9 Seokwoo Lee and Lowell Bautista, ‘Part XII of the United Nations Convention on the Law of the Sea and the Duty to Mitigate Against Climate Change: Making out a Claim, Causation, and Related Issues’ (2018) 45 Ecology Law Quarterly 129, 138; Michael Gagain, ‘Climate Change, Sea Level Rise, and Artificial Islands: Saving the Maldives’ Statehood and Maritime Claims through the “Constitution of the Oceans”’ (2012) 23 (1) Colorado Journal of International Environmental Law and Policy 77, 82. 10 Catherine Redgwell, ‘Treaty Evolution, Adaptation and Change: Is the LOSC “Enough” to Address Climate Change Impacts on the Marine Environment?’ (2019) 34 (3) International Journal of Marine and Coastal Law 440, 445. See, for instance, Anxhela Miles, ‘Emerging Legal Doctrines in Climate Change Law – Seeking an Advisory Opinion from the International Court of Justice’ (2021) 56 Texas International Law Journal 59.

Ocean-Climate Litigation  297 12.2 Ocean-Climate Nexus: Is UNCLOS Fit for Purpose? The climate regime lacks an effective dispute settlement procedure. The recourse to Part XV of UNCLOS can counter this drawback, as it entails a compulsory dispute settlement procedure. However, calling on climate change arguments in a litigation procedure under UNCLOS is not without limits. First, the dispute or the case should be related to the interpretation or the application of UNCLOS,11 which poses the question of considering the ocean-climate nexus under the LOS system. Secondly, the prevalence and consistency of the climate regime are significant while interpreting and applying UNCLOS’s provisions.12 12.2.1  Applying Climate Regime to LOS

The link between the climate regime and the LOS is tenuous. On the one hand, climate change-related issues were not considered when UNCLOS was adopted. On the other hand, the ocean has little place in the climate regime.13 However, as human activities at sea threaten the marine environment, protecting the latter from climate change adverse effects become a matter of concern. Part XII of UNCLOS is specifically dedicated to the protection and preservation of the marine environment. The link between Part XII and other relevant environmental instruments was considered as entailing a high standard of due diligence amongst states parties regarding the scope of obligations contained in Part XII.14 The climate regime can have a role in interpreting and applying UNCLOS’s provisions. Greenhouse gas (GHG) emissions, particularly CO2 emissions, have a significant impact on the marine environment as a source of pollution. Some UNCLOS provisions were considered relevant if a dispute arose from CO2 emissions that impacted the marine environment. Among those provisions are the general obligations of states to protect and preserve the marine environment (Articles 192, 194 and 197 UNCLOS), the provision on land-based sources of pollution (Article 207 UNCLOS) and pollution from and through the atmosphere (Article 212 UNCLOS). The combination of Articles 194, 207 and 212 UNCLOS encompass all airborne sources of marine pollution, including GHG emissions, through the introduction of substances or energy, pursuant to Article 1(1)(4) UNCLOS. Deposition of excess carbon can be considered a substance that affects or is likely

11 United Nations Convention on the Law of the Sea, 10 December 198, Article 286. 12 Seokwoo Lee and Lowell Bautista, ‘Part XII of the United Nations Convention on the Law of the Sea and the Duty to Mitigate Against Climate Change: Making out a Claim, Causation, and Related Issues’ (2018) 45 Ecology Law Quarterly 129, 151. 13 See Millicent McCreath and Amber R. Maggio, ‘Introduction: Climate Change and the Law of the Sea: Adapting the Law of the Sea to Address the Challenges of Climate Change’ (2019) 34 (3) International Journal of Marine and Coastal Law 387. 14 Seokwoo Lee and Lowell Bautista, ‘Part XII of the United Nations Convention on the Law of the Sea and the Duty to Mitigate Against Climate Change: Making out a Claim, Causation, and Related Issues’ (2018) 45 Ecology Law Quarterly 129, 136.

298  Vonintsoa Rafaly to affect the marine environment.15 To what extent can the ocean-climate nexus be dealt with under these provisions?. Article 192 UNCLOS sets out the general obligation for states to protect and preserve the marine environment. The interpretation and application of this Article derive from the Part XII provisions and other applicable rules of international law. The case law has broadened its scope to a duty to prevent, or at least mitigate, significant harm to the environment and other states16 and has also recognised the obligation to protect and preserve the marine environment as an obligation of due diligence.17 It ‘extends both to “protection” of the marine environment from future damage and “preservation” in the sense of maintaining or improving its present condition’.18 In that sense, states are required to take individually necessary measures to prevent, reduce and control pollution of the marine environment from any source, using the best practicable means at their disposal and in accordance with their capabilities, as outlined in Article 214 of UNCLOS. Consequently, states have the duty to control and reduce GHG emissions from any source, as it pollutes the marine environment and causes harm to other states.19 This duty entails a high standard of due diligence regarding Part XII UNCLOS. As a standard of conduct, states should not drastically cut down their GHG emissions. Rather, the adoption of ‘[m]easures that gradually reduce pollution and result in meaningful lowering of carbon emissions over a period of time would be sufficient’.20 Here, the climate regime is relevant in defining the scope of the obligation of due diligence. First, through the reference to precautionary measures, provided by Article 3(3) of the UNFCCC, states should take measures ‘to anticipate, prevent and minimise climate change and mitigate its adverse effects’; and through the unilateral establishment of their nationally determined contributions (NDCs),

15 Alan Boyle, ‘Law of the Sea Perspectives on Climate Change’ (2012) 27 International Journal of Marine and Coastal Law 831, 833. 16 Award in the Arbitration regarding the Iron Rhine (‘Ijzeren Rijn’) Railway between the Kingdom of Belgium and the Kingdom of the Netherlands, Decision of 24 May 2005, VOLUME XXVII, at 66–67; Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, at 240–242. 17 The obligation of due diligence comprises the obligation to take necessary measures to prevent or minimise harmful pollution including environmental assessment, regulations, use of the best available technology, application of the precautionary principle and enforcement. See Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, para 197 and 223; Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the Area, Advisory Opinion of 1 February 2011, International Tribunal for the Law of the Sea, paras 115–120. 18 South China Sea Arbitration (Philippines v. China), Award of 12 July 2016, Case No. 2013-19, Permanent Court of Arbitration, para 941; The M/V ‘Louisa’ Case (Saint Vincent and the Grenadines v. Kingdom of Spain), Provisional measures, 2010, International Tribunal for the Law of the Sea, para 76; Delimitation of the maritime boundary in the Atlantic Ocean (Ghana/Côte d’Ivoire), Judgment of 23 September 2017, International Tribunal for the Law of the Sea, para 69. 19 Alan Boyle, ‘Law of the Sea Perspectives on Climate Change’ (2012) 27 International Journal of Marine and Coastal Law 831, 834. 20  Ibid.

Ocean-Climate Litigation  299 under the Paris Agreement (Articles 3 and 4 of the Paris Agreement). Therefore, the ‘application of the precautionary principle would strengthen the argument for saying that more should be done to reduce CO2 emissions’.21 Secondly, in light of Article 2 of the UNFCCC, the standard of conduct concerns stabilising GHG concentrations in the atmosphere to enhance climate change adaptation. It implies that states are not required per se to reduce or eliminate their GHG emissions or to have immediate results but to gradually lower carbon emissions to stabilise GHG concentrations. Therefore, states have ‘an obligation to deploy adequate means to exercise best positive efforts, to do the utmost’22 to stabilise GHG concentrations in the atmosphere. This can be done by fulfilling their obligation regarding successive NDCs under Article 4 Paris Agreement. Overall, compliance with the climate regime would indicate state compliance with their obligations under UNCLOS.23 However, to what extent can this indicator be relevant in the characterisation of the dispute?. 12.2.2  The Climate Regime in the Characterisation of Litigation under UNCLOS

UNCLOS provides a compulsory dispute settlement mechanism where states’ commitments under the climate regime can be challenged. The characterisation of the dispute by the court or tribunal is crucial as the claim would fail if it lies in the climate change perspective but does not relate primarily to the interpretation and/ or application of UNCLOS. One condition to succeed in ocean-climate litigation is to overcome the limits outlined in Articles 288 and 293 UNCLOS. Article 288 UNCLOS concerns ICTs’ jurisdiction concerning the interpretation or application of the Convention. Article 293 UNCLOS deals with applying other rules of international law not incompatible with UNCLOS. The cumulative application of these Articles expands the compulsory jurisdiction of UNCLOS Part XV as far as the dispute concerns the interpretation and application of the Convention. Characterising a dispute is ‘to isolate the real issue in the case and identify the object of the claim’.24 There is no established process to characterise a dis-

21 Ibid., 835. 22 Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the Area, Advisory Opinion of 1 February 2011, International Tribunal for the Law of the Sea, para 110. 23 Catherine Redgwell, ‘Treaty Evolution, Adaptation and Change: Is the LOSC “Enough” to Address Climate Change Impacts on the Marine Environment?’ (2019) 34 (3) International Journal of Marine and Coastal Law 440, 449; James Harrison, Saving the Oceans Through Law: The International Legal Framework for the Protection of the Marine Environment (Oxford University Press 2017) 256; Alan Boyle, ‘Law of the Sea Perspectives on Climate Change’ (2012) 27 International Journal of Marine and Coastal Law 831, 836. 24 Stefan Talmon, ‘The Chagos Marine Protected Area Arbitration: Expansion of the Jurisdiction of UNCLOS Part XV Courts and Tribunals’ (2016) 65 (4) International and Comparative Law Quarterly 927, 927. See Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Award of 18 March 2015, Case No. 2011-03, Permanent Court of Arbitration, para 208; Fisheries

300  Vonintsoa Rafaly pute. However, on two occasions, jurisprudence under UNCLOS has shed light on the process underlying the characterisation of a dispute. In the Chagos Marine Protected Area Arbitration, Mauritius requested to declare that the United Kingdom was not entitled to establish a marine protected area around the Chagos archipelago because it was not the ‘coastal state’ under UNCLOS.25 The Arbitral Tribunal proceeded to the characterisation of the dispute on whether it presents a dispute concerning the interpretation or application of UNCLOS, with the question of sovereignty as one aspect of it or a dispute which primarily concerns territorial sovereignty with the interpretation and application of UNCLOS as a secondary element. For that purpose, the Arbitral Tribunal ‘is entitled, and indeed obliged, to consider the context of the submission and how it has been presented’26 and the historical dispute between the parties and the consequences of the requested findings.27 In the award, the tribunal held that the dispute was less concerned about the interpretation of the term coastal state under UNCLOS than about the matter of state sovereignty on the Chagos archipelago. On the other hand, in the South China Sea Arbitration,28 the Arbitral Tribunal also referred to the characterisation approach. The applicant’s claim concerned the status of certain maritime features in the South China Sea under UNCLOS, among other things.29 The Tribunal held that ‘[t]he nature of the dispute may have significant jurisdictional implications, including whether the dispute can fairly be said to concern the interpretation or application of the Convention or whether subject-matter based exclusions from jurisdiction are applicable’.30 That is to say, if resolving the claim implied rendering a decision on sovereignty either expressly or implicitly or if the objective of the claimant was to advance its position on a matter outside the scope of UNCLOS – such as sovereignty matters, the dispute would be beyond the compulsory jurisdiction under Part XV of UNCLOS. Regarding these two cases, whereas the ICT should characterise a dispute objectively, reference to ‘relative weight’ and fairness implies subjective elements. Therefore, caution should be made when submitting a case involving ocean-climate litigation, namely its context and presentation. In ocean-climate litigation, it can be done, for example, by claiming that a big emitter didn’t fulfil its obligation of due diligence to protect the marine environment, taking states’ commitments Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, I.C.J. Reports 1998, para 30; Nuclear Tests (New Zealand v. France), Judgment, I.C.J. Reports 1974, para 30. 25 Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Award of 18 March 2015, Case No. 2011-03, Permanent Court of Arbitration, para 158. 26 Ibid., para 229. 27 Ibid., para 211. Stefan Talmon, ‘The Chagos Marine Protected Area Arbitration: Expansion of the Jurisdiction of UNCLOS Part XV Courts and Tribunals’ (2016) 65 (4) International and Comparative Law Quarterly 927, 933. 28 South China Sea Arbitration (Philippines v. China), Award on Jurisdiction and Admissibility, 29 October 2015, Case No. 2013-19, Permanent Court of Arbitration. 29 Ibid., para 169. 30 South China Sea Arbitration (Philippines v. China), Award of 12 July 2016, Case No. 2013-19, Permanent Court of Arbitration, para 150.

Ocean-Climate Litigation  301 under the climate regime as an indicator. In other words, the claim should focus on the fact that such failure undermines the claimant’s rights and obligations under UNCLOS to be characterised as a dispute involving the interpretation and application of UNCLOS. 12.2.3  The Climate Regime as a General Rule

Referring to generally accepted international rules and standards (GAIRS) is crucial for an evolutive interpretation and application of Part XII UNCLOS. To what extent could the climate regime be considered GAIRS that states have to take into account when establishing national or regional measures to protect the marine environment?. The first problem resides in the fact that the climate regime does not provide precise rules and standards. Whereas the Kyoto Protocol provides ‘very specific requirements for reducing GHGs, with quantifiable measurements on certain dates’,31 states’ commitments lack precision. However, a question arises: to what extent are those requirements considered GAIRS to inform state compliance to their obligation of due diligence under Part XII UNCLOS?. Then, the climate regime focuses on land-based mitigation.32 As Article 237 UNCLOS provides, the Convention should be applied taking into account ‘[s]pecific obligation assumed by states under special conventions, concerning the protection and preservation of the marine environment’. Since the UNFCCC, the Kyoto Protocol and the Paris Agreement exclude ocean-related matters; it is questionable how states’ commitments under the climate regime can constitute GAIRS that indicate the fulfilment of their obligation to protect and preserve the marine environment. A solution would be to refer to the general statement of Article 311 UNCLOS. It specifies that the UNCLOS ‘shall not alter nor affect the enjoyment by other states of the rights and obligations arising from other agreements compatible with [the] Convention’. Since the UNCLOS does not affect the enjoyment of states’ rights nor the performance of their obligations under the climate regime but reinforces them, it does not modify or suspend the operation of Part XII UNCLOS.33 Finally, it is not easy to consider climate targets and commitments as ‘generally accepted’. The ultimate objective of a GAIRS is to make compulsory for all states specific rules that had not taken the form of an international convention in force

31 Jennifer Kilinski, ‘International Climate Change Liability: A Myth or a Reality?’ (2009) 18 Journal of Transnational Law & Policy 377, 388. 32  Catherine Redgwell, ‘Treaty Evolution, Adaptation and Change: Is the LOSC “Enough” to Address Climate Change Impacts on the Marine Environment?’ (2019) 34 (3) International Journal of Marine and Coastal Law 440, 454. 33 This is more challenging if the dispute would concern the definition of baselines and delimitation issues. See, ibid., 455.

302  Vonintsoa Rafaly for the states concerned but were nevertheless respected by most states.34 Since the climate regime establishes differentiated responsibility and unilateral definitions of NDCs, it could not be considered entailing GAIRS. Indeed, GAIRS could be defined based on the general acceptance of the rules and standards in state practice.35 The pre-eminence of sovereignty characterises the decision-making process under the climate regime. What is generally accepted is that states have the obligation to contribute to climate change mitigation. How they should do it – meaning through which rules and standards – depends on each unilateral state’s commitment. It is difficult to characterise any ‘generally accepted’ rules and standards since the solidarity element is lacking. Through the vote, the decision would be one of the majorities, rendering the minority to accept to follow this decision, constituting a higher interest for the community of parties. This process would ensure, as far as possible, the support of the whole international community and, therefore, be of general acceptance.36 To that extent, if new clear standards for the control of GHG emissions are agreed upon, the recourse to GAIRS under UNCLOS’s provisions would be possible. A claim could be produced before a court or a tribunal based on the breach of Articles 207 and 212 of the UNCLOS, for example.37 12.3 Ocean-Climate Litigation: A Matter of Opportunity and Strategy Adjudication plays an essential role in international environmental law.38 Although compliance mechanisms are common in that field, adjudication has developed these last decades.39 At the national and regional levels, significant cases relate to the climate regime. At the international level, two requests for an advisory opinion were recently submitted to the ICJ and ITLOS, paving the way forward.40 The

34 International Law Association, ‘ILA London Conference (2000) – Final Report’ in Erik Franckx (ed), Vessel-source Pollution and Coastal State Jurisdiction (Kluwer Law International 2001) 107. 35  Ibid., 176. 36  James Harrison, ‘The Law of the Sea Convention Institutions’ in David Rothwell et al. (eds), The Oxford Handbook of the Law of the Sea (Oxford University Press 2015) 378. 37 Alan Boyle, ‘Law of the Sea Perspectives on Climate Change’ (2012) 27 International Journal of Marine and Coastal Law 831, 838. 38 Daniel Bodansky, ‘The Role of the International Court of Justice in Addressing Climate Change: Some Preliminary Reflections’ (2017) 49 Arizona State Law Journal 689, 690. 39 For example, between May 2020 and May 2021, 191 cases were filed before national, regional and ITCs. See the study conducted by the Graham Research Institute on Climate Change and the Environment and the Centre for Climate Change Economics and Policy, Joana Setzer and Catherine Higham, Global Trends in Climate Change Litigation: 2021 Snapshot (July 2021) accessed 18 October 2022. 40 UNGA, Request for an advisory opinion of the International Court of Justice on the obligations of States in respect of climate change, A/RES/77/276, 29 March 2023; ITLOS, Request for an Advisory Opinion submitted by the Commission of Small Island States on Climate Change and International Law, Case No.31. See also Laura Horn, ‘Is Litigation an Effective Weapon for Pacific Island Nations in the War Against Climate Change?’ (2009) 12 (1) Asia Pacific Journal of Environmental Law 169; Daniel Bodansky, ‘The Role of the International Court of Justice in Addressing Climate

Ocean-Climate Litigation  303 climate regime privileges negotiation and conciliation. Article 14 of the UNFCCC provides that ‘the parties … shall seek a settlement of the dispute through negotiation or any other peaceful means of their own choice’ unless parties mutually agree to bring the case before the ICJ or submit it to arbitration.41 The UNFCCC does not mandate a binding dispute settlement process. Here, it would be of interest to test the opposite analysis, considering that the main point of the issue is related to the LOS but which implies a matter of climate change mitigation. What could be the limits of UNCLOS’s judicial provisions? From the public interest perspective, there are a few relevant points: the choice of jurisdiction, the standing to sue and the question of causation and liability. 12.3.1  An Opportune Context and a Strategic Presentation of the Claim

In a dispute involving the relationship between UNCLOS and other international instruments, Article 288(2) UNCLOS provides that: A court or tribunal referred to in Article 287 shall also have jurisdiction over any dispute concerning the interpretation or application of an international agreement related to the purposes of this Convention, which is submitted to it in accordance with the Agreement. Although the climate regime is related to the purpose of the Convention, it is more difficult to assert that bringing a case before ICTs under Article 287 UNCLOS is in accordance with the climate regime’s dispute settlement procedure. According to Article 14 of UNFCCC,42 dispute settlement under the climate regime should be sought ‘through negotiation or any peaceful means of their own choice’. Paragraph 2 allows states to declare a compulsory jurisdiction for interpreting and applying the UNFCCC and its related instruments. So far, only three states have made a declaration in that sense.43 Therefore, at first sight, the ICJ and arbitral tribunals are the only jurisdictions that can deal with the interpretation and application of climate legal instruments in connection to the interpretation and application of UNCLOS. In that context, the claimant should be aware of two elements: the opportunity and the strategy underpinning the litigation. First, climate change adjudication cannot be seen as a substitute for negotiation or compliance mechanisms under the Paris Agreement. Instead, it is an alternative to clarify and develop systematic marine environment protection. The opportunity to bring a case before ICTs should ‘follow the Hippocratic principle, do not harm.

Change: Some Preliminary Reflections’ (2017) 49 Arizona State Law Journal 689; Margaretha Wewerinke-Singh and Diana H Salili, ‘Between Negotiations and Litigation: Vanuatu’s Perspective on Loss and Damage from Climate Change’ (2020) 20 (6) Climate Policy 681. 41 United Nations Framework Convention on Climate Change, 20 January 1994, Article 14, para 2. 42 Together with Article 18 of the Kyoto Protocol, and Article 24 of the Paris Agreement. 43 The Netherlands opted for both jurisdictions (ICJ and Arbitral Tribunal). Salomon Islands and Tuvalu privilege the Arbitral Tribunal.

304  Vonintsoa Rafaly It should be undertaken in a manner that complements rather than competes’.44 One way to do so is to integrate climate change-related matters into broad challenges through a dispute concerning the protection of the marine environment.45 It has been proven at the national level that cases arising from ‘systemic’ mitigation were the most successful.46 For instance, at the international level, combining the application of Part XII UNCLOS and the climate regime will consider the latter from a broader perspective and ensure a systemic approach to mitigation and adaptation. Then, the choice of jurisdiction is significant in the strategy underpinning any claims involving the relationship between UNCLOS and the climate regime. Indeed, this choice depends on the expected implications and results of the litigation. The point here is instead the implication of the litigation in climate action in the long run,47 rather than the practical expected legal consequences arising from the litigation.48 The choice of jurisdiction by the applicant is crucial regarding the specificities of each ICT. The choice will depend on the claimant’s ease regarding those different jurisdictions and the claim’s legal basis. First, the ICJ and ITLOS, as well-established international institutions, are ‘likely to make predictable rulings considering the implications of specific rulings for future dispute settlement’.49 Choosing such ICTs will build up the authority of the decision and its influence on the evolution of climate change consideration in jurisprudence. However, it

44 Daniel Bodansky, ‘The Role of the International Court of Justice in Addressing Climate Change: Some Preliminary Reflections’ (2017) 49 Arizona State Law Journal 689, 705. 45 Human rights litigation involving climate-change related matters are the greatest example of systemic litigation. See Keina Yoshida and Joana Setzer, ‘The Trends and Challenges of Climate Change Litigation and Human Rights’ (2020) 2 European Human Rights Law Review 140; Jacqueline Peel and Hari M. Osofsky, ‘A Rights Turn in Climate Change Litigation?’ (2018) 7 (1) Transnational Environmental Law 37. Contra see, Erik A. Posner, ‘Climate Change and International Human Rights Litigation: A Critical Appraisal’ (2007) 155 University of Pennsylvania Law Review 1925. 46 Systemic mitigation under climate litigation is litigation that has a whole-of-system approach to challenge the adequacy of national government approaches to reduce GHG emissions. See Graham Research Institute on Climate Change and the Environment and the Centre for Climate Change Economics and Policy, Joana Setzer and Catherine Higham, Global Trends in Climate Change Litigation: 2021 Snapshot (July 2021) accessed 18 October 2022; Elizabeth Fisher, Eloise Scotford and Emily Barritt, ‘The Legally Disruptive Nature of Climate Change’ (2017) 80 (2) Modern Law Review 173. 47 For instance, as a comprehensive study on climate change litigation’s strategy, see Kim Bouwer and Joana Setzer, Climate Litigation as Climate Activism: What Works? (The British Academy, COP26 Briefings 2020), available at accessed 18 October 2022. 48 According to the International Law Commission’s (ILC) Responsibility of States for Internationally Wrongful Acts (ARWISA), the legal consequences of a breach of an international obligation consist of continued duty of performance (Article 29), cessation and non-repetition (Article 30) and reparation through restitution (Article 35), compensation (Article 36) or satisfaction (Article 37). See International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, November 2001, Supplement No. 10 (A/56/10). 49 Meinhard Doelle, ‘Climate Change and the Use of the Dispute Settlement Regime of the Law of the Sea Convention’ (2006) 37 Ocean Development and International Law 319, 331.

Ocean-Climate Litigation  305 has been proven in different environmental issues under UNCLOS that those ICTs demonstrate a certain reluctance in applying UNCLOS’s judicial provisions to issues involving other international instruments.50 Then, arbitration under Annex VII permits the parties to have more control over the membership of the tribunals. A special arbitral tribunal established under Annex VIII would provide flexibility to ensure specific expertise for the case.51 The choice will likely lie in arbitral tribunals if it involves scientific evidence and analysis of climate change effects, for example. Finally, choosing ITLOS or the arbitral tribunals could be a good option. A claimant can request provisional measures from these jurisdictions regarding a dispute over the prevention of harm to the marine environment. 12.3.2  Applicant’s Standing: Who Can Represent a Public Interest?

Climate change is a common concern of humankind. All states contribute to climate change, and all states are victims of its adverse effects. However, each state’s contribution and the consequences of climate change on each state varies to a certain degree. It is well-known that some states are quite vulnerable to the adverse effect of climate change while having contributed little to GHG emissions, such as small island developing countries or less developed countries. If litigation occurs, they have a direct interest and are the most apparent applicants. But can other states – not directly affected – represent the public interest in that matter?. At first sight, jurisprudence was not open to such application. In 1966, the ICJ specified that only specific rights connected to individual interests could be considered. The Court denied the applicant’s standing on the ground that they had no ‘legal right or interest in the subject matter of the case’.52 However, another way to overcome this limit is the recourse to the notion of obligation erga omnes partes. It concerns the obligations ‘owed by any state party to all other states parties to [a] Convention’.53 The case on Questions Relating to the Obligation to Prosecute or Extradite elaborates on the standing to sue a state not directly injured by the breach of obligation of another state. It followed the reasoning in the Barcelona Traction case concerning obligation erga omnes defined as.

50  MOX Plant case (Ireland v. United Kingdom), Order of 24 June 2003, Case No. 2002-01, Permanent Court of Arbitration; Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010; Alan Boyle, ‘Law of the Sea Perspectives on Climate Change’ (2012) 27 International Journal of Marine and Coastal Law 831, 838. See also, Nigel Bankes, ‘The Jurisdiction of the Dispute Settlement Bodies of the Law of the Sea Convention With Respect to Other Treaties’ (2021) 52 (4) Ocean Development and International Law 346. 51 Meinhard Doelle, ‘Climate Change and the Use of the Dispute Settlement Regime of the Law of the Sea Convention’ (2006) 37 Ocean Development and International Law 319, 331. 52  South West Africa, Second Phase, Judgment, I.C.J. Reports 1966, paras 14 and 33. 53  Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports 2012, paras 68–69.

306  Vonintsoa Rafaly obligations of a state towards the international community as a whole … By their very nature [they] are the concern of all states. Given the importance of the rights involved, all states can be held to have a legal interest in their protection.54 Unlike the latter, obligation erga omnes partes is owed to other states’ parties to a given convention instead of being owed to the international community as a whole. According to the court, states parties to a convention ‘have a common interest in compliance with [the obligations established by the convention]’. Additionally, ‘common interest implies that the obligations in question are owed by any state party to all other states parties to the Convention’. All states have ‘a legal interest’ in protecting the rights involved. This ‘implies the entitlement of each state party to the convention to claim the cessation of an alleged breach by another state party’.55. Thus, from the requirement of a ‘specific right’, established in the South West Africa case, in any area subject to community interest, an applicant can invoke, before a court or a tribunal, ‘a legal interest’ in the compliance of agreed obligations by other states parties to a given convention. Applying this approach to UNCLOS litigation, the Convention strives for universal participation and contains binding obligations regarding the protection of the marine environment. Therefore, Part XII would give a state party to UNCLOS a ‘legal interest’ and a standing to sue another state party for the breach of its obligation to protect the marine environment by not fulfilling its commitment to the climate regime. However, the question of the United States is problematic as it is not a party to UNCLOS, and it is one of the most significant emitters of GHGs. Requiring the approach of the protection of the environment as an obligation erga omnes can be a way to bring a claim before a court or a tribunal. Even some legal scholars find the duty to protect the environment an embryonic obligation erga omnes; it is not yet well established.56 12.3.3  Causation and Liability: Who to Sue and to What Extent They Can Be Sued

Causation and liability are the main ingredients for a successful claim before an international court or tribunal. On the question of public interest, there are two relevant matters: on the one hand, a sufficient legal cause for liability and, on the other

54 Barcelona Traction, Light and Power Company, Limited, Judgment, I.C.J. Reports 1970, para 33. 55  Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports 2012, paras 68–70. It was confirmed by the ICJ in the case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Provisional Measures, Order of 23 January 2020, I.C.J. Reports 2020, at 16–17. 56 Alan Boyle, ‘Litigating Climate Change under Part XII of the LOSC’ (2019) 34 (3) International Journal of Marine and Coastal Law 458, 478; Seokwoo Lee and Lowell Bautista, ‘Part XII of the United Nations Convention on the Law of the Sea and the Duty to Mitigate Against Climate Change: Making Out a Claim, Causation, and Related Issues’ (2018) 45 Ecology Law Quarterly 129, 136.

Ocean-Climate Litigation  307 hand, the joint liability of states for breach of their obligation to protect the marine environment from their commitments regarding GHG emissions. Establishing sufficient legal cause for liability would be very difficult as the level of contribution of a particular state compared to other countries, the capacity of the state to reduce pollution and the effect of the historical contribution on overall pollution levels are challenging to determine.57 Additionally, it is rather difficult to establish scientific proof that the damage directly results from non-conformity with a state’s commitment to the climate regime. On that matter, Phillip Barton suggested using a ‘reasonable care standard’58 to measure a state’s commitment to the climate regime. Through the interpretation and application of the due diligence obligation, states are expected – since the consideration of climate change mitigation matters – to pay due diligence in authorising and controlling the activities under their jurisdiction and control not to harm the marine environment and other states. The ‘reasonable care is defined by the required conduct given the available scientific understanding of the potential risks’, independently of the commitment established under the Kyoto Protocol or the Paris Agreement. Regarding this approach, developed states would be responsible for not having taken reasonable care that could have been expected to mitigate climate change, compared to the situation of scientific knowledge of potential risk at a certain period. Here, states’ commitment under the climate regime is a factor to measure the duty of due diligence of a state to protect the marine environment from harm caused by activities under its jurisdiction or control.59 States’ commitments under the climate regime cannot exclude the consideration of their obligations under the UNCLOS, as climate change mitigation impacts the fulfilment of the obligation to protect the marine environment. For example, a developed state can be considered in breach of its obligation to protect and preserve the marine environment by not adopting necessary national policies and measures, therefore, not limiting its anthropogenic emissions of GHG, as required by Article 4(2)(a) UNFCCC. Climate change is a multi-faced, multi-level and multiple-actors phenomenon.60 In that respect, it is difficult to determine the contribution of each emitter to climate change and, therefore, its liability. Scientific evidence plays a significant role in that sense.61 This poses the question: to what extent an emitter state is liable for the breach of its obligation to protect the environment regarding its commitment 57  Seokwoo Lee and Lowell Bautista, ‘Part XII of the United Nations Convention on the Law of the Sea and the Duty to Mitigate Against Climate Change: Making out a Claim, Causation, and Related Issues’ (2018) 45 Ecology Law Quarterly 129, 148. 58 Phillip Barton, ‘State Responsibility and Climate Change: Could Canada be Liable to Small Island States?’ (2002) 11 Dalhousie Journal of Legal Studies 65, 78–83. 59 Southern Bluefin Tuna (New Zealand v. Japan; Australia v. Japan), Provisional measures, 1999, International Tribunal for the Law of the Sea, para 51. 60  Catherine Redgwell, ‘Treaty Evolution, Adaptation and Change: Is the LOSC “Enough” to Address Climate Change Impacts on the Marine Environment?’ (2019) 34 (3) International Journal of Marine and Coastal Law 440, 456. 61 See Rupert F. Stuart-Smith et al., ‘Filling the Evidentiary Gap in Climate Litigation’ (2021) 11 Nature Climate Change 651.

308  Vonintsoa Rafaly under the climate regime? Suppose a given state is sued for not exercising enough diligence to fulfil its obligation under Articles 192 and 194 UNCLOS by failing to limit its anthropogenic GHG emissions, which has caused damages to the claimant. In that case, the respondent can object that it is not the only liable state. One of the main points in this question lies in the ‘diffusion of responsibility’,62 where it is difficult to determine who, among several wrongdoers, is responsible for what if a particular harmful outcome occurs. This situation involves the concept of ‘shared responsibility’. Shared responsibility refers to ‘situations where a multiplicity of actors contributes to a single harmful outcome, and legal responsibility for this harmful outcome is distributed among one of the contributing actors’.63 Although states are individually performing their obligations under UNCLOS and are responsible for their compliance with the climate regime’s commitments, they have ‘collective obligation’ or joint obligation to protect the marine environment and mitigate climate change. Therefore, two kinds of shared responsibility could arise: ‘cumulative responsibility’ and ‘cooperative responsibility’. On the one hand, ‘cumulative responsibility’ involves a ‘situation where harm arises due to the independent actions of contributing actors’.64 On the other hand, ‘cooperative responsibility’ is understood as ‘shared responsibility arising out of joint or concerted action (or inaction) by states’.65 The international law of states’ responsibility envisages a ‘plurality of responsible states’66 only in cooperative responsibility, when ‘several states are responsible for the same internationally wrongful act’. In such a case, ‘the responsibility of each state may be invoked in relation to that act’. Here, the characterisation of the wrongful act is crucial regarding the primary obligation breached. Such an act ‘cannot be prescribed in the abstract’.67 In international law, ‘the responsibility of each participating state [to a wrongful act] is determined individually, based on its own conduct and by reference to its own international obligations’.68 Indeed, the unprecedented Urgenda case69 made clear that a state is liable even 62 André Nollkaemper, ‘The Duality of Shared Responsibility’ (2018) 24 (5) Contemporary Politics 524, 529–534; Mark Bovens, The Quest for Responsibility: Accountability and Citizenship in Complex Organisations (CUP 1998) 49. 63 André Nollkaemper, ‘The Duality of Shared Responsibility’ (2018) 24 (5) Contemporary Politics 524, 528. 64 André Nollkaemper and Dov Jacobs, ‘Shared Responsibility in International Law: A Conceptual Framework’ (2013) 34 Michigan Journal of International Law 359, 368. 65  Jacqueline Peel, ‘Climate Change’ in André Nollkaemper et al. (eds), The Practice of Shared Responsibility in International Law (Cambridge University Press 2017) 1010. 66  International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, November 2001, Supplement No. 10 (A/56/10), Article 47. 67  International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, With Commentaries (Yearbook of the International Law Commission II, 2001), p. 125. 68 International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, With Commentaries (Yearbook of the International Law Commission II, 2001), pp. 124–125. 69 Urgenda Foundation v. Government of the Netherlands (Ministry of Infrastructure and the Environment), Decision, 24 June 2015, C/09/456689/HA ZA 13-1396, The Hague District Court.

Ocean-Climate Litigation  309 if its contribution to climate change is negligible compared to other states. The Dutch Supreme Court relied on the Netherlands’ independent obligation under the European Convention on Human Rights (ECHR), the UNFCCC and the Dutch Constitution to take measures to prevent climate change and adequately respond to the climate change issue, vis-à-vis its citizens.70 Applied in ocean-climate litigation, this human rights approach holds certain limits. It concerns the beneficiary of the obligation – instead of a state’s citizens, mankind – and the causal link between the contribution of a state to climate change and the harm to the marine environment or to the other states. Another hurdle concerns climate attribution, mainly the portion of the responsibility of an emitting state towards its obligation under the climate regime and under UNCLOS. Several methods were developed in the literature analysing lawsuits at the national level, such as marked-based theory.71 Still, it is difficult to precisely establish to what extent a particular state has contributed to climate change and, therefore, to what extent it has harmed the marine environment regarding its failure to perform its obligations under the climate regime. The evolution of science on cross-cutting climate challenges would play a significant role in future oceanclimate litigation before ICTs. 12.4 Advisory Opinion: The First Step to Adjudicating Ocean-Climate Matters Advisory opinions play an important role in international law, especially regarding public interest matters, as they concern legal questions that aim to clarify international norms regarding the most pressing issue at stake for the international community at a given time. Unlike contentious cases where the judgment is binding for states parties only, advisory opinion concerns all states. Additionally, an advisory opinion can counter several hurdles mentioned before, especially the question of causation and attribution. It has a more general effect than a contentious case that involves a bilateral relationship. Requesting an advisory opinion is also critical for the public interest. It, firstly, permits the participation of a range of state and non-state actors in the proceedings. Requesting an advisory opinion to the ICJ is open for states, the United Nations 70  The State of the Netherlands v. Urgenda Foundation, Decision, 20 December 2019, ECLI: NL:HR:2019:2007, Supreme Court of the Netherlands. See for instance, section 5.2.2–5.2.4 and 5.7.1–5.7.9. 71 For an overview of existing climate attribution used in lawsuits at the national level, see Rupert F. Stuart-Smith et al., ‘Filling the Evidentiary Gap in Climate Litigation’ (2021) 11 Nature Climate Change 651. Most of case law concerning climate attribution, referring to causation, focuses on the necessity to take measures to mitigate climate change, the altered rights and, the link between the insufficiency of states measures and the damages and losses suffered by the owners of the said rights. See, for instance, Jacqueline Peel and Hari M. Osofsky, ‘A Rights Turn in Climate Change Litigation?’ (2018) 7 (1) Transnational Environmental Law 37; Sophie Marjanac and Lindene Patton, ‘Extreme Weather Event Attribution Science and Climate Change Litigation: An Essential Step in the Causal Chain?’ (2018) 36 (3) Journal of Energy & Natural Resources Law 265.

310  Vonintsoa Rafaly General Assembly72 or other United Nations organs prior to authorisation of the General Assembly and the Security Council.73 During the process, according to Article 66, paragraph 2 of the Statute of the Court, any international organisation considered ‘likely to be able to furnish information on the question’ can be asked to provide written statements or oral statements. Some organisations are engaged in scientific research and technical analysis, and expertise can influence building the case in a court or tribunal.74 They are often called ‘international public interest organisations’.75 Considering the science-based character of the climate regime, this participation of scientists through the involvement of non-governmental organisations, for example, is crucial for the advisory opinion to get enough legitimacy in interpreting and applying the UNCLOS considering the ocean-climate nexus. Drawing on the question posed while requesting an advisory opinion is one challenge to overcome to make the ocean-climate adjudication effective. Jurisprudence had witnessed unsuccessful attempts to influence the evolution of international law through advisory opinions, due to a lack of a precise and clear question.76 Although the ICT can clarify the question regarding the context of the request and the scope of application of the question,77 there are some major elements to take into account:78 on the one hand, the legal character of the question and, on the other hand, the specific character of the question posed. On the legal character of the question, reference to international law must be highlighted. The questions posed should be ‘framed in terms of law and raise problems of international law

72  For an analysis of the opportunity for the UN General Assembly to request for an advisory opinion, from a human rights perspective, see Mariya Gromilova, ‘Rescuing the People of Tuvalu: Towards an ICJ Advisory Opinion on the International Legal Obligations to Protect the Environment and Human Rights of Populations Affected by Climate Change’ (2015) 10 Intercultural Human Rights 233. 73  United Nations, Charter of the United Nations, 24 October 1945, Article 96. 74 South West Africa, Second Phase, Judgment, I.C.J. Reports 1966, 327. 75  See Dinah Shelton, ‘The Participation of Nongovernmental Organisations in International Judicial Proceedings’ (1994) 88 (4) American Journal of International Law 611. 76 This is, for example, the case of the Advisory Opinion relating to Kosovo (Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, I.C.J. Reports 2010). The question posed by the General Assembly was on whether the unilateral declaration of independence by Kosovo in accordance with international law (para 49). The ICJ held that ‘it was not required by the question posed to decide whether international law conferred a positive entitlement upon Kosovo to declare independence; rather, it had to determine whether a rule of international law prohibited such a declaration’. Philippe Sands warned of the risk to request an advisory opinion: no opinion at all, or unhelpful opinion. See Philippe Sands, ‘Climate Change and the Rule of Law: Adjudicating the Future in International Law’ (2016) 28 (1) Journal of Environmental Law 19. 77  In its advisory opinion of 2015, the ITLOS clarified the scope of application of the first question before addressing it. Precisely, it has clarified the notion of IUU fishing and the issue of conservation and management of living resources within the exclusive economic zone. Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC), Advisory Opinion of 2 April 2015, International Tribunal for the Law of the Sea, paras 86–100. 78 Anxhela Miles, ‘Emerging Legal Doctrines in Climate Change Law – Seeking an Advisory Opinion from the International Court of Justice’ (2021) 56 Texas International Law Journal 59, 65–66.

Ocean-Climate Litigation  311 … These questions are by their very nature susceptible of a reply based on law’.79 Regarding ocean-climate matters, a potential question can be: do developed states have positive obligations to ensure the reduction of their GHG emissions pursuant to the climate regime in order to not cause severe damage to the marine environment and other states?80 Such question can clarify some factual elements that are still challenged on a scientific basis and ‘give them the authority of a judicial determination’,81 such as the reality of GHG impact on the marine environment or the need for states to take appropriate measures to reduce GHG emissions. An advisory opinion can assert the nature and the scope of the duty to prevent significant transboundary harm, which will help states parties to put forward more ambitious NDCs.82 In that sense, an advisory opinion can impact the climate change international negotiations by ‘setting the terms of the debate, providing evaluative standards … and establishing a framework of principles within which negotiations may take place to develop more specific norms’.83 The request for an advisory opinion is not without limits. Regarding ICTs’ competence, Article 138 paragraph 1 of the ITLOS Rules limits its jurisdiction to render an advisory opinion on a legal question, if an international agreement related to the purposes of the UNCLOS confers jurisdiction on it. As an example, the Agreement for the establishment of the Commission of Small Island States on Climate Change and International Law (COSIS) gives mandate to the COSIS to request an advisory opinion from ITLOS on any legal question within the scope of the UNCLOS.84 However, there is a tendency to reject this restrictive jurisdiction, extending to any matters concerning the interpretation and application of the UNCLOS, no matter the legal instrument establishing its jurisdiction. This is because an advisory

79 Western Sahara, Advisory Opinion, 1.C.J. Reports 1975, para 15. 80 As an example, the Republic of Palau, in 2011, intended to request an advisory opinion before the ICJ, focusing on ‘the responsibilities of states under international law to ensure that activities carried out under their jurisdiction or control that emit greenhouse gases do not damage other states’. United Nations, ‘Press Conference on Request for International Court of Justice Advisory Opinion on Climate Change’ (Meetings Coverage and Press Releases, 3 February 2012) accessed 2 March 2022. 81 Philippe Sands, ‘Climate Change and the Rule of Law: Adjudicating the Future in International Law’ (2016) 28 (1) Journal of Environmental Law 19, 29. The author pointed out that one important thing that an ITC could do is to ‘settle the scientific dispute’ around climate-related matters, ‘for the purposes of law and adjudication’ (see spec note 40). The ICJ was successful in doing so in the case concerning Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), Judgment, I.C.J. Reports 2014, para 30–41. 82 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, 242. 83 Daniel Bodansky, ‘Customary (and Not so Customary) International Environmental Law’ (1995) 3 (1) Indiana Journal of Global Legal Studies 105, 119. 84 Agreement for the establishment of the Commission of Small Island States on climate Change and International Law, 31 October 2021, art 2(2). Regarding this provision, on 7 November 2022, during the COP27 in Sharm El Sheikh (Egypt), the COSIS confirmed the adoption of a plan of action concerning the request for an advisory opinion from the ITLOS in the near future.

312  Vonintsoa Rafaly opinion is not binding per se.85 In addition, it is recognised that in an advisory opinion, an ICT can determine the exact scope of the question and its ‘real objective’.86 Regarding the legal effect of an advisory opinion, some scholars consider that advisory opinions lack ‘precedential value and effect on third parties to the dispute’, minimising the scope of such a decision.87 Such a position can be challenged regarding the judgment on Delimitation in the Indian Ocean case.88 Whether an advisory opinion has a legal effect on states was a core question in the dispute between Mauritius and Maldives. In this case, Maldives claimed that advisory opinions do not have binding effect and ‘they are not a means of binding states in specific disputes’.89 Mauritius was of the view that while an advisory opinion is not binding as such, it is not devoid of legal effects and provides ‘an authoritative statement of the law’.90 Therefore, ‘states are bound and obliged to comply with the law, as declared and defined by [ICTs], whether in contentious cases or advisory opinions’.91 The Special Chamber found that an advisory opinion has a legal effect as it has an authoritative nature.92 12.5 Conclusion Overall, enforcing public interests through ocean-climate litigation is a ‘path full of pitfalls’. Still, international litigation has a role in advocating public interest in relation to the mitigation of climate change and its adverse effects on the oceans. One must bear in mind that litigation in the particular field of climate change should not be understood as a means to prosecute states regarding the breach of their obligations. It is more about enhancing compliance, increasing states’ efforts to negotiate and effectively implement climate regime through ‘a better understanding of the

85 Tafsir M. Ndiaye, ‘The Advisory Function of the International Tribunal for the Law of the Sea’ (2010) 9 Chinese Journal of International Law 565, 581–587. 86 See, for instance, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, para 20. 87 Seokwoo Lee and Lowell Bautista, ‘Part XII of the United Nations Convention on the Law of the Sea and the Duty to Mitigate Against Climate Change: Making out a Claim, Causation, and Related Issues’ (2018) 45 Ecology Law Quarterly 129, 152. This position was confirmed in the case on Interpretation of Peace Treaties, Advisory Opinion , I.C.J. Reports 1950, at 71. 88 Dispute concerning Delimitation of the Maritime Boundary between Mauritius and Maldives in the Indian Ocean, Preliminary Objections, Judgment of 28 January 2021, International Tribunal for the Law of the Sea. 89 Ibid., para 194. 90 Ibid., para 197. 91 Ibid., para 198. 92 Ibid., para 203. The Special Chamber made a distinction between the binding character and the authoritative nature of an advisory opinion. It stated that even advisory opinions are not binding per se, ‘judicial determinations made in advisory opinions carry no less weight and authority than those in judgments because they are made with the same rigour and scrutiny by the “principal judicial organ” of the United Nations with competence in matters of international law’.

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93 Seokwoo Lee and Lowell Bautista, ‘Part XII of the United Nations Convention on the Law of the Sea and the Duty to Mitigate Against Climate Change: Making out a Claim, Causation, and Related Issues’ (2018) 45 Ecology Law Quarterly 129, 133.

314  Vonintsoa Rafaly Harrison J, Saving the Oceans Through Law: The International Legal Framework for the Protection of the Marine Environment (OUP 2017). Harrison J, ‘The Law of the Sea Convention Institutions’ in Rothwell D et al. (eds), The Oxford Handbook of the Law of the Sea (OUP 2015). Horn L, ‘Is Litigation an Effective Weapon for Pacific Island Nations in the War Against Climate Change?’ (2009) 12 (1) Asia Pacific Journal of Environmental Law 169. International Law Association, ‘ILA London Conference (2000) - Final Report’ in Franckx E (ed), Vessel-Source Pollution and Coastal State Jurisdiction (Kluwer Law International 2001). International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, With Commentaries (Yearbook of the International Law Commission II, 2001). International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, November 2001, Supplement No. 10 (A/56/10). Kilinski J, ‘International Climate Change Liability: A Myth or a Reality?’ (2009) 18 Journal of Transnational Law & Policy 377. Lee S and Bautista L, ‘Part XII of the United Nations Convention on the Law of the Sea and the Duty to Mitigate Against Climate Change: Making out a Claim, Causation, and Related Issues’ (2018) 45 Ecology Law Quarterly 129. Marjanac S and Patton L, ‘Extreme Weather Event Attribution Science and Climate Change Litigation: An Essential Step in the Causal Chain?’ (2018) 36 Journal of Energy & Natural Resources Law 265. McCreath M and Maggio AR, ‘Introduction: Climate Change and the Law of the Sea: Adapting the Law of the Sea to Address the Challenges of Climate Change’ (2019) 34 (3) International Journal of Marine and Coastal Law 387. Miles A, ‘Emerging Legal Doctrines in Climate Change Law - Seeking an Advisory Opinion from the International Court of Justice’ (2021) 56 Texas International Law Journal 59. Ndiaye TM, ‘The Advisory Function of the International Tribunal for the Law of the Sea’ (2010) 9 Chinese Journal of International Law 565. Nollkaemper A, ‘International Adjudication of Global Public Goods: The Intersection of Substance and Procedure’ (2012) 23 (3) European Journal of International Law 769. Nollkaemper A, ‘The Duality of Shared Responsibility’ (2018) 24 (5) Contemporary Politics 524. Nollkaemper A and Jacobs D, ‘Shared Responsibility in International Law: A Conceptual Framework’ (2013) 34 Michigan Journal of International Law 359. Oellers-Frahm K, ‘Lawmaking Through Advisory Opinions?’ in von Bogdandy A and Venzke I (eds), International Judicial Lawmaking (Springer 2012). Peel J, ‘Climate Change’ in Nollkaemper A and others (eds), The Practice of Shared Responsibility in International Law (CUP 2017). Peel J and Osofsky HM, ‘A Rights Turn in Climate Change Litigation?’ (2018) 7 (1) Transnational Environmental Law 37. Posner EA, ‘Climate Change and International Human Rights Litigation: A Critical Appraisal’ (2007) 155 University of Pennsylvania Law Review 1925. Rajamani L, ‘The 2015 Paris Agreement: Interplay Between Hard, Soft and Non-Obligations’ (2016) 28 (2) Journal of Environmental Law 337. Redgwell C, ‘Treaty Evolution, Adaptation and Change: Is the LOSC “Enough” to Address Climate Change Impacts on the Marine Environment?’ (2019) 34 (3) International Journal of Marine and Coastal Law 440.

Ocean-Climate Litigation  315 Sands P, ‘Climate Change and the Rule of Law: Adjudicating the Future in International Law’ (2016) 28 (1) Journal of Environmental Law 19. Shelton D, ‘The Participation of Nongovernmental Organisations in International Judicial Proceedings’ (1994) 88 (4) American Journal of International Law 611. Shelton D, ‘Common Concern of Humanity’ (2009) 39 Environmental Policy and Law 83. Stuart-Smith RF et al., ‘Filling the Evidentiary Gap in Climate Litigation’ (2021) 11 Nature Climate Change 651. Talmon S, ‘The Chagos Marine Protected Area Arbitration: Expansion of the Jurisdiction of UNCLOS Part XV Courts and Tribunals’ (2016) 65 (4) International and Comparative Law Quarterly 927. Wewerinke-Singh M and Salili DH, ‘Between Negotiations and Litigation: Vanuatu’s Perspective on Loss and Damage from Climate Change’ (2020) 20 (6) Climate Policy 681. Wolfrum R, ‘Enforcing Community Interests Through International Dispute Settlement: Reality or Utopia?’ in Fastenrath U and others (eds), From Bilateralism to Community Interest: Essays in Honour of Judge Bruno Simma (OUP 2011). Yoshida K and Setzer J, ‘The Trends and Challenges of Climate Change Litigation and Human Rights’ (2020) 2 European Human Rights Law Review 140.

Arbitration MOX Plant case (Ireland v. United Kingdom), Order of 24 June 2003, Case No. 2002-01, Permanent Court of Arbitration. Award in the Arbitration regarding the Iron Rhine (“Ijzeren Rijn”) Railway between the Kingdom of Belgium and the Kingdom of the Netherlands, Decision of 24 May 2005, VOLUME XXVII. South China Sea Arbitration (Philippines v. China), Award of 12 July 2016, Case No. 201319, Permanent Court of Arbitration. Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Award of 18 March 2015, Case No. 2011-03, Permanent Court of Arbitration.

International Court of Justice Interpretation of Peace Treaties, Advisory Opinion , I.C.J. Reports 1950. South West Africa, Second Phase, Judgment, I.C.J. Reports 1966. Barcelona Traction, Light and Power Company, Limited, Judgment, I.C.J. Reports 1970. Nuclear Tests (New Zealand v. France),Judgment, I.C.J. Reports 1974. Western Sahara, Advisory Opinion, 1.C.J. Reports 1975. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996. Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, I.C.J. Reports 1998. Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010. Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, I.C.J. Reports 2010. Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports 2012. Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), Judgment, I.C.J. Reports 2014.

316  Vonintsoa Rafaly Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Provisional Measures, Order of 23 January 2020, I.C.J. Reports 2020.

International Tribunal for the Law of the Sea Southern Bluefin Tuna (New Zealand v. Japan; Australia v. Japan), Provisional measures, 1999, International Tribunal for the Law of the Sea. The M/V "Louisa" Case (Saint Vincent and the Grenadines v. Kingdom of Spain), Provisional measures, 2010, International Tribunal for the Law of the Sea. Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the Area, Advisory Opinion of 1 February 2011, International Tribunal for the Law of the Sea. Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC), Advisory Opinion of 2 April 2015, International Tribunal for the Law of the Sea. Delimitation of the maritime boundary in the Atlantic Ocean (Ghana/Côte d’Ivoire), Judgment of 23 September 2017, International Tribunal for the Law of the Sea. Dispute concerning Delimitation of the Maritime Boundary between Mauritius and Maldives in the Indian Ocean, Preliminary Objections, Judgment of 28 January 2021, International Tribunal for the Law of the Sea.

Domestic Decisions The State of the Netherlands v. Urgenda Foundation, Decision, 20 December 2019, ECLI: NL:HR:2019:2007, Supreme Court of the Netherlands.

13 Climate Cases as Public Interest Litigation before the European Court of Human Rights Corina Heri1

13.1  Introduction and Definition of Public Interest Litigation1 In the past few years, a growing number of human rights–related cases have been brought before various courts and tribunals to contest the progression and effects of anthropogenic climate change caused by greenhouse gas emissions. Applicants and activists have seemingly recognised the potential of the strategic litigation route to evoke climate action and are increasingly turning to human rights argumentation and bodies. From domestic litigation, like the much-discussed Dutch Urgenda case,2 this approach has graduated to the regional and international stages. At the European Court of Human Rights (ECtHR), nearly a dozen climate-related applications are currently pending, with three cases – Duarte Agostinho and Others v 33 Council of Europe Members States,3 the KlimaSeniorinnen v Switzerland4 case and Carême v France5 – having been relinquished to the Court’s Grand Chamber.6 Any of these cases could become a landmark judgment for a Court that has never issued any findings on climate change and interprets a Convention lacking environmental provisions.7 At the same time, the Court does not permit public interest litigation, and it has been argued that these cases should be declared inadmissible

1 I am grateful to Kim Bouwer, Justine Bendel and Yusra Suedi for their comments on earlier drafts of this paper. All remaining errors are, of course, mine. 2 The State of the Netherlands v Urgenda Foundation, Decision, 20 December 2019, ECLI: NL:HR:2019:2007, Supreme Court of the Netherlands. 3 Duarte Agostinho and Others v Portugal and Others App no 39371/20 (ECHR, communicated on 13 November 2020, relinquished to the Grand Chamber on 29 June 2022). 4 Verein KlimaSeniorinnen Schweiz and Others v Switzerland App no 53600/20 (ECHR, communicated on 17 March 2021, relinquished to the Grand Chamber on 26 April 2022). 5 Carême v France App no 7189/21 (ECHR, not yet communicated, relinquished to the Grand Chamber on 31 May 2022). 6 For an overview of this rapidly developing set of pending cases, see the Climate Rights and Remedies Project (CRRP), ‘Climate Litigation Database’ accessed 7 September 2022. 7 Council of Europe, European Convention on Human Rights, 4 November 1950. DOI:  10.4324/9781003433460-19

318  Corina Heri as examples of proscribed actiones populares.8 To consider the possibilities for public interest litigation before the Court, both in climate cases and more generally, the present chapter touches on various procedural hurdles that these cases must clear. It also examines the ways in which the ECtHR resists instrumentalisation for strategic ends. Considering various issues of substance, and the ways in which the Court itself is strategic in its response to cases, the analysis also touches briefly on the limitations of the remedies that can be expected as a result of this type of litigation and what this means from a strategic perspective. Overall, there are many unanswered questions attached to the possibility of bringing public interest climate cases to Strasbourg. Objections can be formulated to the appropriateness of bringing climate cases before human rights bodies at all, and to the abilities of such bodies to take all of the relevant interests into account in the same way as the democratic process can.9 As a result, it has been argued that it would be more appropriate for domestic political processes to determine which measures are to be taken to combat climate change, and that human rights cannot fully and effectively capture and counter these complex realities.10 Because it is not entirely clear to what extent the Court does in fact allow public interest cases, this chapter will first consider why it can be argued that the Court does not and should not accept public interest litigation (the case against public interest litigation in Strasbourg, section 13.2) and why it can be argued that it does and should do so (the case for this type of litigation, section 13.3). It will then consider the specific challenges to bringing climate change cases in the public interest (section 13.4). Lastly, it will evaluate substantive law, litigation’s democratic legitimacy and the Court’s own role as a strategic actor in the response to climate change (section 13.5). Before doing so, it is useful to define what is being discussed here. The scope of cases that fall under the umbrella term of public interest or strategic litigation, as used in the present chapter, is broad. Elsewhere, strategic litigation has been defined as ‘the continuation of politics before the courts by elements of civil society’11 or as ‘developing long-term litigation strategies in order to induce legal, social and/or political reform’.12 It has also been described, more simply, as the act of ‘bringing a case before a court with the explicit aim of positively impacting persons other than the individual complainants’.13 Others focus on the idea that these are   8 Office fédéral de la Justice OFJ, Requête no 53600/20 – Verein KlimaSeniorinnen Schweiz et autres c. Suisse, Observations du Gouvernement suisse sur la recevabilité et le fond, 16 July 2021, para 61 accessed 7 April 2022.   9 Julie H. Albers, ‘Human Rights and Climate Change: Protecting the Right to Life of Individuals of Present and Future Generations’ (2017) 28 Security and Human Rights 113. 10 Benoit Mayer, ‘Climate Change Mitigation as an Obligation Under Human Rights Treaties?’ (2021) 115 (3) American Journal of International Law 409. 11 Aidan O’Neill, ‘Strategic Litigation before the European Courts’ (2015) 16 (4) ERA Forum 495. 12 Marion Guerrero, ‘Lawyering for LGBT Rights in Europe: The Emancipatory Potential of Strategic Litigation at the CJEU and the ECtHR’ (PhD Thesis, European University Institute 2018). 13 Adriána Zimová, Strategic Litigation Impacts: Roma School Desegregation (Open Society Foundations 2016) 10.

Climate Cases as Public Interest Litigation  319 cases brought by proxies and not by the directly affected individuals themselves.14 The present chapter will use the terms ‘strategic litigation’ and ‘public interest litigation’ interchangeably.15 Conclusively defining these terms is challenging: the understandings of this phenomenon mentioned here hint at a definition through the actors involved (civil society), the objectives pursued (the achievement of social justice goals) and the perspectives on litigation taken (with cases understood not as ends in themselves, but as steps in a continuous process of nudging state policies towards a given aim).16 Climate litigation cases certainly fit all of these criteria, although a strict definition in this sense would not be particularly useful. For example, civil society involvement in a case may not always be known, the idea of social justice goals can arguably cover most human rights cases, and the aims pursued through a given case can be both individual and general. Still, these criteria represent touchstones for understanding what is being discussed here, if not providing a conclusive definition. It will also become clear, through the course of this chapter, that the Court’s understanding of actiones populares need not preclude every case that is linked to the public interest; while there is overlap between this term and public interest or strategic litigation, some strategic cases can and do succeed in Strasbourg. The contribution will tease out these distinctions by exploring the Court’s past case law and its possible future in the form of climate cases. 13.2 The Case Against Public Interest Litigation in Strasbourg 13.2.1  Victim Status Requirements and the Prohibition of Actiones Populares

One argument that can be made against the possibility of bringing public interest litigation to the Strasbourg Court is that it allows applicants to circumvent domestic political processes. For this reason, the idea of strategic litigation is linked to the idea of an actio popularis. The Court has been unequivocal about the fact that its victim status requirements preclude applicants from bringing these types of applications to Strasbourg.17 The ECHR, in other words, strictly proscribes applications that can be considered actiones populares. By doing so, the Court resists being strategically instrumentalised by rejecting claims for abstract review of domestic law or policy. It also maintains an individualistic approach to rights, unlike that of some other human rights adjudicators.18

14 Christian Schall, ‘Public Interest Litigation Concerning Environmental Matters before Human Rights Courts: A Promising Future Concept?’ (2008) 20 (3) Journal of Environmental Law 417. 15 Adriána Zimová, Strategic Litigation Impacts: Roma School Desegregation (Open Society Foundations 2016) 16 Based loosely on the elements discussed in Lisa Hahn, ‘Strategische Prozessführung: Ein Beitrag zur Begriffsklärung’ (2019) 39 (1) Zeitschrift für Rechtssoziologie 5. 17 See Bursa Barosu Başkanliği and Others v Turkey App no 25680/05 (ECHR, 16 June 2018) paras 114–116. 18 Social and Economic Rights Action Center and another v Nigeria, Decision, Communication No 155/96, 27 October 2001, African Commission on Human and Peoples’ Rights, as discussed in Françoise Hampson, Claudia Martin and Frans Viljoen, ‘Inaccessible Apexes: Comparing Access to

320  Corina Heri The prohibition of actiones populares at the Court is, first and foremost, a question of the Court’s victim status requirements. The Court’s concept of victimhood is autonomous, which means that it is interpreted authoritatively by the Court, irrespective of domestic law. Applicants cannot bring a case for abstract review against domestic law, practice or policy to Strasbourg; instead, they must show that they are or have been concretely affected by that measure. In other words, to exercise the right of individual application and bring a case under Article 34 ECHR, an applicant must be able to claim to be a victim of a violation of the Convention, and must therefore show that they have been ‘directly affected’ by a given measure.19 Conjecture in this regard does not satisfy the Court, and applicants must ‘produce reasonable and convincing evidence of the likelihood that a violation affecting them personally will occur’.20 This concept of victimhood does allow for some flexibility, however. For example, in secret surveillance cases, the Court has held that it is not necessary to prove that an applicant has already been surveilled at the time of bringing a case to Strasbourg because that would render the surveillance regimes ‘unchallengeable’ and reduce human rights to a ‘nullity’ without a remedy.21 Death or disappearance cases represent another exception. Here, the deceased or disappeared victim’s next of kin can submit an application in their stead. In other words, in addition to socalled ‘direct victims’, the Court also allows applications from ‘indirect victims’ before or after the death of a direct victim. This stands alongside case law concerning potential victims, i.e. those who have not yet suffered a Convention violation, but who are at risk of suffering one if a given measure is carried out.22 In addition, it is possible to argue that one’s rights have been violated by a general or abstract measure because one has been required to modify one’s conduct in order to avoid being affected by that measure, or because one belongs to a category of people who risk being directly affected by that measure.23 This was the case, for example, for the applicant in the SAS case, who had not been personally prosecuted under the contested French head-covering ban.24

Regional Human Rights Courts and Commissions in Europe, the Americas, and Africa’ (2018) 16 (1) International Journal of Constitutional Law 161. 19 Sejdić and Finci v Bosnia and Herzegovina App nos 27996/06 and 34836/06 (ECHR, 22 December 2009) para 28; Roman Zakharov v Russia App no 47143/06 (ECHR, 4 December 2015) para 164. 20 Centre for Legal Resources on behalf of Valentin Câmpeanu v Romania App no 47848/08 (ECHR, 17 July 2014) para 101. 21 As per the early case of Klass and Others v Germany App no 5029/71 (ECHR, 5 December 1978) para 64. 22 On potential victimhood, see ibid; Soering v the United Kingdom App no 14038/88 (ECHR, 7 July 1989); Dudgeon v the United Kingdom App no 7525/76 (ECHR, 22 October 1981); Roman Zakharov v Russia App no 47143/06 (ECHR, 4 December 2015) paras 173–178. For a discussion, see also Centre for Legal Resources on behalf of Valentin Câmpeanu v Romania App no 47848/08 (ECHR, 17 July 2014) para 101. 23 SAS v France App no 43835/11 (ECHR, 1 July 2014) para 57. 24 Ibid.

Climate Cases as Public Interest Litigation  321 In some exceptional cases, the Court has also allowed non-relatives to bring cases in victims’ stead. This case law has been applied to non-governmental organisations (NGOs) and relates to the fact that, although the Rules of Court require applicants’ representatives to provide a written and signed authority to act, exceptions can be made where certain grave allegations against the state are concerned. The leading case in this regard is Centre for Legal Resources on behalf of Valentin Câmpeanu.25 Here, the Court took the victim’s extreme vulnerability as an intellectually disabled, HIV-positive, orphaned young Roma man into account to apply its victim status requirements flexibly. Understanding this case and its exceptionality requires a better understanding of the Court’s concept of vulnerability. This term, which represents a highly meaningful concept in the Court’s case law, can be linked to a victim’s age, sex, dependency, disability or experience of victimisation, among other factors.26 If applicants are described as vulnerable, then this can have a wide range of effects on the way in which their case is treated, from rendering admissibility criteria more flexible, to shifting the burden of proof and tailoring the state margin of appreciation or the threshold of severity under Article 3 ECHR, to affecting remedial awards or the priority with which a case is treated.27 If the Court considers that an applicant’s vulnerability has had an impact on their ability to lodge a complaint in Strasbourg, this does not do away with the victim status requirement entirely. To bring an application in the victim’s stead, their representatives must still be able to show that they have a special connection to the victim. It should also be noted that, although its approach to victim status is supposed to be autonomous, the Court in Câmpeanu emphasised the fact that the domestic authorities had not objected to the applicant NGO’s post-mortem complaints on behalf of Mr Câmpeanu.28 So it seems, in short, that where applicants go beyond the standard conception of victim status, the Court may let itself be guided by more lenient domestic approaches; however, there is no guarantee that it will also do so where states object to an organisation’s representative or vicarious standing. Generally, the Court displays a selective awareness of the risk that its admissibility criteria will deprive vulnerable people of effective protection of their Convention rights, and its approach seems tailored to prevent such outcomes in the most grievous instances.29 However, it does so rather restrictively: while there is some degree of flexibility here,30 it is a limited one.

25 Centre for Legal Resources on behalf of Valentin Câmpeanu v Romania App no 47848/08 (ECHR, 17 July 2014). 26 Corina Heri, Responsive Human Rights: Ill-Treatment, Vulnerability and the ECtHR (Hart Publishing 2021). 27 Ibid. 28 Centre for Legal Resources on behalf of Valentin Câmpeanu v Romania App no 47848/08 (ECHR, 17 July 2014) para 110. 29 Corina Heri, Responsive Human Rights: Ill-Treatment, Vulnerability and the ECtHR (Hart Publishing 2021). 30 Roman Zakharov v Russia App no 47143/06 (ECHR, 4 December 2015) para 164.

322  Corina Heri One issue of admissibility that has not been discussed here is the issue of ‘significant disadvantage’. This admissibility criterion was added to the ECHR by the adoption of Protocol 14 to the Convention,31 as part of the effort to unburden the Court and allow it to more easily dispose of trivial cases.32 Maligned for requiring the Court to consider the merits of a case already at the admissibility stage,33 it has since emerged that this requirement has a limited practical impact, and does not particularly burden applicants seeking redress at the Court.34 For this reason, it will not be discussed further here. 13.2.2  Remedial Arguments

Another argument against allowing public interest litigation in Strasbourg can be made from an impact or remedial perspective. This argument stems from the understanding that ‘the outcomes of strategic litigation can be unpredictable, paradoxical, and difficult to measure’.35 Strategic litigation can have an impact on law and practice, stir up public support or motivate follow-up litigation, but it can also lead to backlash, frustration and unintended results.36 In the context of the Court’s Roma rights cases, it has been argued that there is also a risk of instrumentalising or ‘speaking for’ the affected individual or groups. Such arguments are supported by references to the lack of grassroots mobilisation, and to the fact that thousands of Roma parents mobilised against the implementation of ECtHR judgments on school desegregation, citing the risk that their children would be marginalised, excluded or ridiculed in the mainstream schools, and the persistence of post-schooling employment discrimination.37 Still, in this context, the positives seem to outweigh the negatives, with the backlash against ‘the lens imported from Strasbourg’38 complemented by policy change, increased advocacy and mobilisation by civil society, domestic actors and international or regional institutions, follow-up litigation and a sense of vindication for individual applicants.39 These

31 Council of Europe, Protocol No 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Amending the Control System of the Convention, 1 June 2010. 32 Council of Europe, European Convention on Human Rights, 4 November 1950, Article 35(3)(b). 33 Dinah Shelton, ‘Significantly Disadvantaged? Shrinking Access to the European Court of Human Rights’ (2016) 16(2) Human Rights Law Review 303. 34 Helen Keller and Abigail Pershing, ‘Climate Change in Court: Overcoming Procedural Hurdles in Transboundary Environmental Cases’ (2022) 3(1) European Convention on Human Rights Law Review 23. 35 Adriána Zimová, Strategic Litigation Impacts: Roma School Desegregation (Open Society Foundations 2016) 14. 36 Ibid., 18–19. 37 Ibid., 56–59. 38 Ibid., 67, citing an open letter from two school principals to the Czech Minister of Education. 39 Ibid., 59–63, 69 and 70, citing an interview with one of the applicants in DH and Others v the Czech Republic App no 57325/00 (ECHR, 13 November 2007).

Climate Cases as Public Interest Litigation  323 judgments can also issue a clear finding that the existing status quo is unlawful and prompt discussion about complex systemic issues.40 At the same time, there should be an awareness here that obtaining a violation judgment through strategic litigation in Strasbourg does not necessarily mean that these findings will translate into practice. In other words, there is a need to temper remedial expectations and to see these types of cases as part of a longer-running effort to raise awareness, mobilise advocates and challenge the status quo. The issue of remedies will be taken up again in the following, in the specific context of the climate cases. 13.2.3  The Right of Individual Petition and Its Abusers

Another consideration that bears mention here is the fact that applicants who use the Court in strategic ways may be seen as abusing their right of individual petition to the Court under Article 34 ECHR. One recent example of this concerns an applicant who, in his search to challenge the French COVID-19 ‘health pass’ measures, called on like-minded others to bombard the Court’s digital applications system with thousands of standardised application forms. The Court ultimately received over 18,000 applications stemming from this effort. In its decision on the original applicant’s case, the Court held that this self-described ‘legal strategy’ was contrary to the spirit of the Convention and to the objectives pursued by it and that it was also manifestly contrary to the right of individual application.41 It is likely that the Court would respond in a similar way in other cases if applicants were seen as manipulating or abusing the Convention system, or acting without good faith in the pursuit of a strategic objective. At the same time, this need not be a barrier to good faith efforts to obtain redress for human rights violations. Overall, the fears of speculative ‘jackpot justice’ or abuse of the Convention system may be largely misplaced in the context of ideologically motivated grassroots attempts at achieving political and social change that better reflects the fundamental values of human rights law, including respect for equality and human dignity. In this regard, it should be noted that, on its own, the fact that the Court has received many hundreds or even thousands of repetitive applications concerning the same subject matter is not necessarily seen as an indication of abuse. This is in fact a rather common occurrence at the Court, and frequently related to rule of law failings or systemic problems in Member states. The need to deal with this reality – and salvage the Court’s docket from excessive burdens – led to the creation of the pilot judgment procedure, which allows the Court to tackle systemic issues by deciding one or several of the cases, and deferring the others to the domestic level for resolution.42 In other words, while there is a potential for many thousands of

40 Ibid., 72 and 80. 41 Zambrano v France App no 41994/21 (ECHR, 7 October 2021) para 38. 42 E.g. Burdov v Russia (No 2) App no 33509/04 (ECHR, 15 January 2009) paras 125–128. See also Council of Europe Committee of Ministers, Recommendation Rec (2004) 6 to member states on the improvement of domestic remedies, 12 May 2004.

324  Corina Heri climate applications to come before the Court, this need not mean that they would be rejected as abuses of the right of individual petition: such rejection is an exceptional measure,43 and it is generally linked to grounds that go beyond the mere presence of a strategy. Thus, the Court has rejected applications as abusive when applicants provided untrue information, used offensive or threatening language, violated their obligation to keep friendly settlement proceedings confidential or submitted an application that was manifestly vexatious or devoid of any real purpose.44 By contrast, it seems that applications linked to ‘publicity or propaganda’ are not an abuse of rights where, to use the Court’s own language, there is no evidence of ‘an irresponsible and frivolous attitude’.45 In other words, earnest applicants – or those who appear earnest – should not be affected by this policy. This raises some issues, including the problem that, when it comes to human rights, likeable applicants should not deserve better protection than unlikeable ones. At the same time, it indicates that a finding like the one made in the French ‘health pass’ case should remain exceptional. 13.3 The Case for Public Interest Litigation in Strasbourg The preceding section has collected arguments against allowing strategic or public interest cases in Strasbourg. However, it is possible to make arguments for such cases, as well. Public interest cases, as defined earlier, are part of a rather complex geography of different types of cases, and none of the foregoing criteria necessarily preclude any one of them from being brought to the Court. Thus, purportedly strategic cases can also be brought before the Court by direct victims who have a strategic interest in addition to their own individual interest, or who have been supported by activists with strategic interests. And, in addition, cases brought by individual victims with direct victim status can have far-reaching consequences for domestic law and policy, which may or may not be intended. One example is the famed Marckx v Belgium case, which set the standard for the treatment of children born out of wedlock in Europe.46 This is just one example among many of how the Court’s case-law finding that different aspects of domestic law and policy violate various Convention rights can have an impact far beyond the individual case. In addition to cases that are not brought in the public interest, but that end up having a public interest benefit or effect, there are those cases that are in fact brought strategically. For example, in the context of cases around sexual orientation and gender identity (SOGI), strategic litigation before the ECtHR has been described

43 Miroļubovs and Others v Latvia App no 798/05 (ECHR, 15 September 2009) para 62. 44 SAS v France App no 43835/11 (ECHR, 1 July 2014) para 67. 45 Ibid., para 68, citing Miroļubovs and Others v Latvia App no 798/05 (ECHR, 15 September 2009) para 66. 46 Marckx v Belgium App no 6833/74 (ECHR, 13 June 1979); Marc Salzberg, ‘The Marckx Case: The Impact on European Jurisprudence of the European Court of Human Rights’ 1979 Marckx Decision Declaring Belgian Illegitimacy Statutes Violative of the European Convention on Human Rights’ (1984) 13 Denver Journal of International Law and Policy 283.

Climate Cases as Public Interest Litigation  325 as a feasible and emancipatory approach.47 ILGA – the International Lesbian, Gay, Bisexual, Trans and Intersex Association – not only participates in strategic litigation cases before the ECtHR but also provides advice to individuals and groups who would like to advance the cause of SOGI rights by bringing a case, including by informing them of the advantages and pitfalls of this avenue and by outlining areas in which strategic litigation is needed or could be useful.48 A comparison can be drawn here to the engagement of the Open Society Justice Foundation concerning public interest litigation in Roma rights cases.49 Moreover, there is yet another genre of cases in which general and individual interests regularly overlap before the Court: environment-related cases. Because Article 34 ECHR does not allow complaints in abstracto alleging a Convention violation,50 it is not possible to challenge environmental policies as such or on behalf of the environment. Instead, an applicant’s case must be able to show that their own rights have been affected to bring a claim to the Court. This individualistic approach has been criticised in the relevant scholarship.51 Still, in many environmental cases, individual and public interests commonly stand side by side. One clear example of this was the Cordella v Italy case, which concerned carcinogenic pollution by steelworks in the Taranto area. In this case, the Court relied on scientific evidence to find that the pollution in question had endangered the health of both the applicants and, more generally, of the whole local population.52 There are plenty of examples of how public and individual interests can overlap in cases before the Court. Where there is a legitimate individual interest at stake, this overlap does not render these cases inadmissible. In addition, it can be argued that every case that ensures respect for human rights serves a public interest, in the sense that the general overall aims of the Convention serve every member of the public. After all, as the Court itself has regularly held, the Convention serves as ‘a constitutional instrument of European public order’.53 It has been argued that this

47 Marion Guerrero, ‘Lawyering for LGBT Rights in Europe: The Emancipatory Potential of Strategic Litigation at the CJEU and the ECtHR’ (PhD Thesis, European University Institute 2018). 48 ILGA Europe, Strategic Litigation on Sexual Orientation, Gender Identity and Sex Characteristics: Inventory of Relevant SOGIESC Case-law and Pending cases Before the ECtHR and CJEU, October 2020, accessed 7 April 2022. 49 Adriána Zimová, Strategic Litigation Impacts: Roma School Desegregation (Open Society Foundations 2016). 50 Roman Zakharov v Russia App no 47143/06 (ECHR, 4 December 2015) para 164. 51 Fransesco Francioni, ‘International Human Rights in an Environmental Horizon’ (2010) 21(1) European Journal of International Law 41. 52 Cordella and Others v Italy App nos 54414/13 and 54264/15 (ECHR, 24 January 2019) para 172. 53 ND and NT v Spain App nos 8675/15 and 8697/15 (ECHR, 13 February 2020) para 110, with further case-law references. On this, see also Geir Ulfstein, ‘The European Court of Human Rights as a Constitutional Court?’ (2014) PluriCourts Research Paper No 14-08 accessed 7 April 2022.

326  Corina Heri function is particularly underscored by the possibility for inter-state applications,54 but it is equally relevant regarding rule of law failures. And, finally, there is the reality of systemic problems and the pilot judgment procedure that was created to deal with them.55 To put it simply, a given case can represent strategic litigation and still be a justified individual application. Pictured as a Venn diagram, the two are not a perfect circle, but there is nevertheless a significant degree of overlap between individual interests and strategic ones. This overlap is where strategic litigation before the Court becomes possible. This can be explained as a fundamental argument about the fact that general and abstract law has concrete individual effects on individuals. There is more complexity to this issue, however, because it also invokes longstanding debates about the moral versus political foundations of rights, their democratic legitimacy and objections against the perceived proliferation of rights.56 In this regard, the issues of victim status and the actio popularis can be linked to debates about the moral versus political foundations of ECHR rights or of human rights overall.57 If we consider that democratic processes are responsible for determining the scope of ‘truth’ of human rights entitlements,58 then it makes sense to preclude human rights claims that challenge or circumvent that decision-making process. At the same time, if we take a purely political account of human rights law to its logical conclusion, then there would be no need for human rights bodies at all; all cases that come before the Court challenge domestic law and policy in some way.59 In addition, it is relevant to invoke the fact that strategic claims can vindicate the rights of marginalised groups in ways that the democratic process may not be able to do and that the objections raised to these types of cases may protect

54 Dean Spielmann and John Darcy, ‘The European Court of Human Rights as a Guarantor of a Peaceful Public Order in Europe’ (2014) 3 (2) Cyprus Human Rights Law Review 106. 55 The pilot judgment procedure was first deployed in the Broniowski case (Broniowski v Poland App no 31443/96 [ECHR, 22 June 2004]). On the functioning of this procedure, see Lize R. Glas, ‘The Functioning of the Pilot-Judgment Procedure of the European Court of Human Rights in Practice’ (2017) 34 (1) Netherlands Quarterly of Human Rights 41. 56 On the ‘proliferation objection’, Jeins T. Theilen, ‘The Inflation of Human Rights: A Deconstruction’ (2021) 34 (4) Leiden Journal of International Law 831. 57 Aidan O’Neill, ‘Strategic Litigation before the European Courts’ (2015) 16 (4) ERA Forum 495, 495–497. 58 George Letsas, A Theory of Interpretation of the European Convention on Human Rights (Oxford University Press 2007) from 74, especially 75; George Letsas, ‘The ECHR as a Living Instrument: Its Meaning and Legitimacy’ in A. Føllesdal, B. Peters and G. Ulfstein (eds), Constituting Europe: The European Court of Human Rights in a National, European and Global Context (Cambridge University Press 2013) 123. 59 On moral versus political accounts of rights, see Samantha Besson, ‘Human Rights: Ethical, Political … or Legal? First Steps in a Legal Theory of Human Rights’ in Donald Earl Childress III (ed), The Role of Ethics in International Law (Cambrudge University Press 2011) 211; Alain Zysset, The ECHR and Human Rights Theory: Reconciling the Moral and the Political Conceptions (Routledge 2017).

Climate Cases as Public Interest Litigation  327 entrenched power dynamics, inequalities and the status quo.60 Lastly, it is possible to argue that it is normatively desirable for human rights bodies to address serious threats to human rights law, given that failing to do so means rejecting relevant applications and thereby seeming to legitimise the threats in question. 13.4  Climate Cases as Public Interest Litigation and Their Specific Challenges Any one of the climate cases currently pending in Strasbourg could become a landmark judgment for the Court. Even though it has decided over 300 environmental cases to date,61 the Court has never issued any findings about the human rights impacts of climate change, and the ECHR does not currently protect a right to a healthy environment, although efforts to include such a right in a Protocol to the Convention have recently been renewed.62 Instead, the Court has undertaken a ‘greening’ of existing Convention rights, albeit predominantly from its classic, individual-oriented point of view. At the same time, the recognition of a human or constitutional right to a healthy environment is by no means a precondition of litigating climate cases. Projects to recognise such a right have, in addition, been contested with reference to the nature of environmental cases.63 For example, Riccardo Pavoni has argued in favour of allowing public interest litigation regarding the environment, writing that ‘the Court should develop its jurisprudence in accordance with the modern tenets of environmental law and its collective and preventive dimension’.64 Pavoni was building on the earlier work of Francisco Francioni, who had argued ‘for a more imaginative and courageous jurisprudence which takes into

60 Jeins T. Theilen, ‘The Inflation of Human Rights: A Deconstruction’ (2021) 34 (4) Leiden Journal of International Law 831; Claerwen O’Hara, ‘Consensus, Difference and Sexuality: Que(e)rying the European Court of Human Rights’ Concept of European Consensus’ (2021) 32(1) Law and Critique 91. 61 Tim Eicke, ‘Human Rights and Climate Change: What Role for the European Court of Human Rights’, (Goldsmiths University Inaugural Annual Human Rights Lecture, London, 2 March 2021) accessed 7 April 2022. 62 Parliamentary Assembly of the Council of Europe, Resolution 2396: Anchoring the right to a healthy environment: need for enhanced action by the Council of Europe, Provisional Version, 29 September 2021; see also Parliamentary Assembly of the Council of Europe, Recommendation 2211, 29 September 2021. 63 Assessing the possibilities of such a right, see Sumudu Atapattu, ‘The Right to a Healthy Environment and Climate Change: Mismatch or Harmony?’ in John H. Knox and Ramin Pejan (eds), The Human Right to a Healthy Environment (Cambridge University Press 2018). 64 Riccardo Pavoni, ‘Public Interest Environmental Litigation and the European Court of Human Rights: No Love at First Sight’ in Federico Lenzerini and Ana Filipa Vrdoljak (eds), International Law for Common Goods: Normative Perspectives on Human Rights, Culture and Nature (Hart Publishing 2014) 333.

328  Corina Heri consideration the collective dimension of human rights affected by environmental degradation’.65 These visions of an approach to environmental litigation based on an appreciation of the severity and collective nature of environmental risks have not come to bear on the Court’s case law to date. Its approach to environmental litigation has been criticised for excluding meritorious claims and failing to internalise the demands of the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters.66 These shortcomings serve to underscore the importance of the pending climate cases: they could allow the Court to determine how the Convention relates to an entirely new substantive issue, that of anthropocentric climate change, and they challenge the limitations of the existing case law in respect of public interest litigation. To better understand the challenge at hand, the following will discuss whether the climate cases pending before the Court can properly be considered examples of public interest litigation. It will then touch on some questions of particular importance to how these cases will proceed in Strasbourg. 13.4.1  Climate Cases as Public Interest Litigation

Today, climate activists have clearly recognised the potential in human rights law, and particularly in the ECHR, when it comes to contesting the effects of climate change, or more specifically of state policy failures regarding that phenomenon. Applications based on this turn to human rights, as a strategy in its own right, are growing in number.67 These cases, which are supported by NGOs and social movements and facilitated through crowd-funding, are now making their way to the Court.68 At the same time, and as noted earlier, Article 34 ECHR does not allow complaints in abstracto alleging a violation of the Convention.69 As a result, it is not possible to challenge climate policy as such or on behalf of the environment; 65 Fransesco Francioni, ‘International Human Rights in an Environmental Horizon’ (2010) 21(1) European Journal of International Law 41. 66 E.g. Christian Schall, ‘Public Interest Litigation Concerning Environmental Matters before Human Rights Courts: A Promising Future Concept?’ (2008) 20 (3) Journal of Environmental Law 417, referring to the United Nations Economic Commission for Europe (UNECE), Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention), 25 June 1998. 67 Annalisa Savaresi and Joana Setzer, ‘Rights-Based Litigation in the Climate Emergency: Mapping the Landscape and New Knowledge Frontiers’ (2022) 13(1) Journal of Human Rights and the Environment 7, 19. 68 For example, the Duarte Agostinho case was crowdfunded and supported by the Global Legal Action Network (Global Legal Action Network, ‘Support Unprecedented Youth Climate Case Against 33 European Countries’ [Crowd Justice] accessed 7 April 2022), two of the applicants in the Greenpeace Nordic case (Greenpeace Nordic and Others v Norway App no 34068/21 (ECHR, communicated on 16 December 2021)) are environmental NGOs, and the first applicant in Verein KlimaSeniorinnen (above n 3) is an organisation fighting climate change. 69 Roman Zakharov v Russia App no 47143/06 (ECHR, 4 December 2015) para 164.

Climate Cases as Public Interest Litigation  329 applicants are required to show that their rights have been affected either directly, indirectly or potentially in order to bring a claim to the Court.70 When it comes to the Court’s pending climate cases, it is possible to argue that they have all been brought, at least in part, for strategic reasons or in the public interest. In the Duarte Agostinho case, for example, the applicants have explicitly stated that their case is not just about obtaining compensation, it is about making European governments act to protect young people’s futures.71 While not every case in which applicants neglect to seek a financial award in the event of a violation judgment should be seen as strategic, these types of statements can be revealing of applicants’ intentions. Although Duarte Agostinho may be the best example of a classic public interest litigation case out of the climate cases pending before the Court, the cases against Switzerland, Austria and Norway could all be linked to a public interest, namely to combat climate change, or to an ambition to tackle a systemic problem by forcing policy changes or at least state engagement with the arguments being made. As the applicants’ representatives in KlimaSeniorinnen put it, for example, these cases are ‘a part of the global conversation’ on litigating for climate action.72 While the interests at stake in these cases are certainly relevant to the wider public, who will likewise reap the benefits of climate action, this need not qualify a given case as an actio popularis. As noted earlier, congruence between public and individual interests is permissible under the Convention, and it lies in the very nature of environmental human rights claims, given that no applicant has an individual environment that can be clearly delineated from that of others.73 As a result, the congruence of public and individual interests has not stopped the Court from allowing environmental claims in the past.74 That is not to say that each of these pending cases pursues an identical strategic goal, or that these cases are, on their face, aimed at protecting the interests of all members of the public in the sense of achieving global climate justice. Each of these climate cases concerns claims about rights violations directly affecting the applicants. In addition, they each have a particular focus, relating for example to

70 Cordella and Others v Italy App nos 54414/13 and 54264/15 (ECHR, 24 January 2019) para 100. 71 Youth for Climate Justice, ‘The Case: FAQ’ (Global Legal Action Network) accessed 7 April 2022, stating that ‘while the ECtHR can order states to pay compensation, the youth-applicants are not seeking any money. This case is solely about making European governments act to protect their futures’. 72 Cordelia Christiane Bähr, Ursula Brunner, Kristin Casper and Sandra H. Lustig, ‘KlimaSeniorinnen: Lessons from the Swiss Senior Women's Case for Future Climate Litigation’ (2018) 9 (2) Journal of Human Rights and the Environment 194. 73 As implied by Tătar v Romania App no 67021/01 (ECHR, 27 January 2009) para 124, and Di Sarno et Autres c Italie App no 30765/08 (ECtHR, 10 January 2012) (French version, paragraph omitted from the English version of the judgment) para 81. 74 Cordella and Others v Italy App nos 54414/13 and 54264/15 (ECHR, 24 January 2019) paras 100– 101 and 100–109. See also Fadeyeva v Russia App no 55723/00 (ECHR, 9 June 2005) para 88.

330  Corina Heri the effects of climate change–related state policies on youth,75 the elderly,76 indigenous peoples77 or people with a specific health condition.78 At the same time, the potential scope of these cases goes far beyond that in past strategic cases before the Court, which have focused on a specific marginalised group, such as the Roma or LGBTQ communities. This is due to the global implications of climate litigation. In addition, arguments about the interests of future generations, as raised for example in Greenpeace Nordic, relate to a type of interest that has never been considered by the Court. Like the German Bundesverfassungsgericht, which recently found that it was impermissible to roll human rights impacts over onto future generations,79 the Court is being called to engage with future interests, raising novel questions. Overall, it is possible to describe these applications as strategic, in the sense that they aim to produce ‘ambitious and systemic outcomes’.80 At the same time, this need not preclude their admissibility, as awareness of the potential and importance of these strategic cases in the climate context – and NGO involvement in litigating them – continues to grow. 13.4.2  Vulnerability and Potential Victim Status Due to Climate Change

The question of victim status will play a key role in litigating climate cases. Two questions are of particular relevance here. The first is the question of vulnerability. It can be argued that the claimants in climate cases are vulnerable, for example, because they are particularly young or elderly, because they belong to a specifically affected marginalised group or because they struggle to obtain access to justice. As discussed earlier, if this argument succeeds, it can help to soften the admissibility criteria before the Court, including the victim status requirement. At the same time, climate change would be a novel context for deploying vulnerability. The Court uses this concept frequently but selectively in its case law. It could expand

75 Duarte Agostinho and Others v Portugal and Others App no 39371/20 (ECHR, communicated on 13 November 2020, relinquished to the Grand Chamber on 29 June 2022); Greenpeace Nordic and Others v Norway App no 34068/21 (ECHR, communicated on 16 December 2021). 76 Verein KlimaSeniorinnen Schweiz and Others v Switzerland App no 53600/20 (ECHR, communicated on 17 March 2021, relinquished to the Grand Chamber on 26 April 2022). 77 Greenpeace Nordic and Others v Norway App no 34068/21 (ECHR, communicated on 16 December 2021). 78 Mex Müllner v Austria (ECHR, filed 25 March 2021) a yet-uncommunicated case brought against Austria on 25 March 2021 concerning the exacerbation of the applicant’s chronic illness by climate change-related warming (Rechtsanwältin Kröemer, New application: … v Austria and request for expedite proceedings under Rule 41, 25 March 2021, ‘ accessed 7 April 2022). 79 German Bundesverfassungsgericht, 1 BvR 2656/18 (24 March 2021). 80 Ben Batros and Tessa Khan, ‘Thinking Strategically About Climate Litigation’, (Openglobalrights, 28 June 2020), accessed 7 April 2022, as cited in Jacqueline Peel and Rebekkah Markey-Towler, ‘Recipe for Success?: Lessons for Strategic Climate Litigation from the Sharma, Neubauer, and Shell Cases’ (2021) 22 (8) German Law Journal 1484.

Climate Cases as Public Interest Litigation  331 on existing understandings of vulnerability to health impacts through pollution,81 in which context the residents of entire areas may be considered vulnerable.82 It could also consider new understandings of vulnerability, such as for example the vulnerability of people living in flood- or drought-prone areas within Council of Europe member states, those particularly affected by heat or fire, or – more expansively – the vulnerability of people living in the Global South. This would go beyond the types of vulnerability previously recognised by the Court, but vulnerability remains context-dependent, linked to the effects of power imbalances, and determined by the circumstances of a given case,83 which means that such a reading is certainly possible. The second key question here is the issue of potential victimhood. For present purposes, this could mean making the argument that inadequate climate action now is putting people at risk of harm in the future. Climate cases represent an opportunity to change how the Court responds to future threats and not only evaluates them ex-post. This means tackling its poorly developed existing case law on potential victimhood. Here, it can be argued that the nature of climate change necessitates action based on future risk, given that the human rights impacts at stake will grow progressively more severe and ultimately irreversible if certain climate ‘tipping points’ are passed.84 In this sense, the pending climate cases raise various claims. For example, in Greenpeace Nordic, the applicants invoke their status as potential victims, citing the risk of harm posed by climate change and the need for preventive measures against known risks. They argue that ‘since the temperature increase cannot be reversed, preventative action must be taken now’.85 Similarly, the KlimaSeniorinnen are contesting ‘heat-related mortality and morbidity in the past, present and future’, along with the state’s alleged failure to take the necessary measures to protect the applicants effectively by doing ‘everything in its power to do its share to prevent a global temperature increase of more than 1.5°C’.86

81 Jugheli and Others v Georgia App no 38342/05 (ECHR, 13 July 2017) para 71. 82 Cordella and Others v Italy App nos 54414/13 and 54264/15 (ECHR, 24 January 2019) para 105. 83 Corina Heri, Responsive Human Rights: Ill-treatment, Vulnerability and the EctHR (Hart Publishing 2021). 84 Paul D.L. Ritchie, Joseph J. Clarke, Peter M. Cox and Chris Huntingford, ‘Overshooting Tipping Point Thresholds in a Changing Climate’ (2021) 592 Nature 517. 85 Greenpeace Nordic and Others v Norway App no 34068/21 (ECHR, communicated on 16 December 2021). For the full application form as submitted to the Court, see: Wahl-Larsen Advokatfirma, New Application: Natur og Ungdom Greenpeace Nordic, v Norway and request under Rule 41 (priority), 15 June 2021  accessed 7 April 2022. 86 Verein KlimaSeniorinnen Schweiz and Others v Switzerland App no 53600/20 (ECHR, communicated on 17 March 2021, relinquished to the Grand Chamber on 26 April 2022). The full text of the application in this case is available at Ettlersuter Rechtsanwälte, New application: Klimaseniorinnen, v Switzerland and request under Rule 41 (priority), 26 November 2020, accessed 7 April 2022.

332  Corina Heri In the past, the Court has held that potential victims ‘must produce reasonable and convincing evidence of the likelihood that a violation affecting them personally will occur’.87 In climate cases, the Court could base a recognition of potential victim status on the relevant scientific evidence, which shows that climate change is already leading to harm and will continue to do so in the future unless measures are swiftly taken. This would allow the Court to capture situations where individual applicants have not yet suffered concrete harm, for example, a loss of life, but have a documented risk of doing so in the future. This would entail the recognition that, like other potential victims, applicants in climate cases are ‘directly concerned by the situation and have a legitimate personal interest in seeing it brought to an end’.88 The Court’s treatment of scientific evidence will likely play a crucial role here and be informed by the fact that it has no expertise on climate science. However, in the past, the Court has been convinced by scientific evidence showing the existence of an environmental risk to health and well-being,89 and it has also applied the precautionary principle in its environmental case law.90 In regard to the latter, the key case is Tătar v Romania, which concerned the hazardous health effects of a mining operation. There, the Court held that the local population had ‘lived in a state of anxiety and uncertainty accentuated by the passivity of the national authorities’, who had failed to comply with their obligation to provide adequate information on the past, present and future consequences of the mining site’s pollution and on the preventive measures in place for managing future risks.91 The Court also noted the affected populations’ ongoing fears due to the continuation of the mining activity and the possibility of future harm arising from it.92 The Tătar case has been invoked in many of the climate cases pending before the Court,93 indicating that

87 Centre for Legal Resources on behalf of Valentin Câmpeanu v Romania App no 47848/08 (ECHR, 17 July 2014) para 101, citing Tauira and 18 Others v France App 28204/95 (ECHR, 4 December 1995) para 131, and Monnat v Switzerland App no 3604/01 (ECHR, 21 December 2006) paras 31–32. 88 Vallianatos and Others v Greece App nos 29381/09 and 32684/09 (ECHR, 7 November 2013) para 49. 89 Cordella and Others v Italy App nos 54414/13 and 54264/15 (ECHR, 24 January 2019). 90 Tătar v Romania App no 67021/01 (ECHR, 27 January 2009) para 120. 91 Ibid., para 122, translation by the author. 92 Ibid. 93 Ettlersuter Rechtsanwälte, New application: Klimaseniorinnen, v Switzerland and request under Rule 41 (priority), 26 November 2020, 8 accessed 7 April 2022; Rechtsanwältin Kröemer, New application: … v Austria and request for expedite proceedings under Rule 41, 25 March 2021, 8 accessed 7 April 2022; Wahl-Larsen Advokatfirma, New Application: Natur og Ungdom Greenpeace Nordic, v Norway and request under Rule 41 (priority), 15 June 2021, 8, 11, 12, and 15–17 accessed 1 November 2022; Duarte Agostinho and Others v Portugal and Others, European Court of Human Rights – Application form, 20 November 2020, 8–9 accessed 7 April 2022.

Climate Cases as Public Interest Litigation  333 applicants have recognised the potential of this finding to capture future climate harm and the anxiety it raises. Because these issues are so closely linked with the merits of a case, the Court would do well to merge the issues of victim status and the merits of a claim. This would allow cases to proceed to the merits stage without a detailed examination of victim status requirements that would otherwise require merits considerations to be made already at the admissibility stage. 13.4.3  Standing of NGOs and Victims’ Organisations before the Court

Another relevant issue here concerns the standing of organisations to bring claims not on their own behalf, but on behalf of their members or other individuals. In the past, the Court has applied variable standards to this type of vicarious application. Sometimes it granted victim status, and sometimes it did not; sometimes it made its own assessment, and sometimes it relied on domestic standing rules. Climate cases might be an opportunity to clarify these inconsistencies. In this regard, it should be noted that, in some cases, especially environmental ones, the Court has recognised that organisations can be individuals’ only option for seeking justice, which is an intriguing possibility in climate cases.94 This might be expanded to mean that environmental NGOs merit some sort of special status before the Court. Such a finding could be motivated by the complexity, technicality, expense or novelty and urgency of these types of applications. In this regard, the Court itself has previously held that ‘in modern-day societies recourse to collective bodies such as associations is one of the accessible means, sometimes the only means, available to the citizens whereby they can defend their particular interests effectively’.95 Still, the standing of organisations to bring cases on behalf of their members is not entirely clear in the Court’s case law. In the past, the Court has responded to these types of cases in disparate ways. Thus, it for example granted victim status to the applicant associations in some cases, particularly environmental ones,96 but took a different stance in others.97 In particular, the idea of linking the Court’s assessment of victim status to the domestic rules on locus standi,98 which can be understood as a form of deference to domestic appreciation, contradicts the

94 E.g. Gorraiz Lizarraga and Others v Spain App no 62543/00 (ECHR, 27 April 2007); Collectif national d’information et d’opposition à l’usine Melox – Collectif stop Melox et Mox v France App no 75218/01 (ECHR, 12 June 2007); and L’Erablière ASBL v Belgium App no 49230/07 (ECHR, 24 February 2009). 95 Beizaras and Levickas v Lithuania App no 41288/15 (ECHR, 14 January 2020) para 81. 96 Gorraiz Lizarraga and Others v Spain App no 62543/00 (ECHR, 27 April 2007); Collectif national d’information et d’opposition à l’usine Melox – Collectif stop Melox et Mox v France App no 75218/01 (ECHR, 12 June 2007); and L’Erablière ASBL v Belgium App no 49230/07 (ECHR, 24 February 2009). 97 Bursa Barosu Başkanliği and Others v Turkey App no 25680/05 (ECHR, 16 June 2018) paras 22, 114–116; Sdružení Jihočeské Matky v the Czech Republic App no 19101/03 (ECHR, 10 July 2006). 98 Bursa Barosu Başkanliği and Others v Turkey App no 25680/05 (ECHR, 16 June 2018) paras 22, 114–116.

334  Corina Heri autonomous nature of the Convention’s victim status requirements.99 This also leads to a fundamental inequality between NGOs from different states, who are subject to different regimes which may or may not recognise their standing to bring representative cases. The need for a clear and consistent approach by the Court here is, as a result, patently evident. The pending climate cases issue a challenge to this existing case law. Of these applications, two – KlimaSeniorinnen and Greenpeace Nordic – concern the standing of environmental organisations to bring climate cases to the Court. In KlimaSeniorinnen, it is argued that not only the individual applicants but also the applicant organisation is a direct victim of climate harm. This argument is based on its statutory purpose, which is to prevent climate-related health impacts, meaning that it is ‘directly affected by Respondent’s omissions to limit [greenhouse gas] emission to a safe level, in line with the Paris Agreement and best available science’.100 The applicants also invoke the vulnerability of the affected individuals. They accordingly argue that the organisation is ‘a direct victim as it defends the interests of its members, as part of a defined most vulnerable group’, and should not be deprived of legal standing purely because it is a legal person.101 Another vulnerability-based argument has been made in Greenpeace Nordic, where it is argued that the two applicant organisations ‘represent future generations’, citing the Court’s case law on the representation of vulnerable individuals.102 It can be noted here, too, that the two cases without NGO applicants – Duarte Agostinho and Mex Müllner v Austria – nevertheless have links to such organisations, which have supported the applicants for example through crowdfunding campaigns.103

  99 Gorraiz Lizarraga and Others v Spain App no 62543/00 (ECHR, 27 April 2007) para 35; Vallianatos and Others v Greece App nos 29381/09 and 32684/09 (ECHR, 7 November 2013) para 47. 100 Ettlersuter Rechtsanwälte, New application: Klimaseniorinnen, v Switzerland and request under Rule 41 (priority), 26 November 2020, accessed 7 April 2022. 101 Ibid. 102 Greenpeace Nordic and Others v Norway App no 34068/21 (ECHR, communicated on 16 December 2021). For the full application form as submitted to the Court, Wahl-Larsen Advokatfirma, New Application: Natur og Ungdom Greenpeace Nordic v Norway and request under Rule 41 (priority), 15 June 2021  accessed 7 April 2022, referring to Centre for Legal Resources on behalf of Valentin Câmpeanu v Romania App no 47848/08 (ECHR, 17 July 2014). 103 Duarte Agostinho is supported by the Global Legal Action Network (for GLAN’s crowdfunding initiative, see Global Legal Action Network, ‘Support unprecedented youth climate case against 33 European countries’ accessed 7 April 2022), while the Mex M case (above n 79) began, in the domestic instances, as part of a group claim linked to Greenpeace and brought by more than 8000 applicants (for the final domestic judgment, see Austrian Verfassungsgerichtshof, Greenpeace et al. v Austria, Decision of 30 September 2020 – G 144-145/2020-13, V 332/2020-13); the applicant has received support in the form of a crowdfunding campaign from the Austrian branch of FridaysforFuture (‘European Climate Lawsuit’, accessed 7 April 2022).

Climate Cases as Public Interest Litigation  335 Rethinking standing requirements here, especially victim status requirements, could allow NGOs to more easily bring applications to the Court. One obvious benefit of this would be the fact that NGOs often have more access to resources and expertise and individuals. From an environmental perspective, however, a more fundamental benefit would be to ease some of the exclusions generated by the enduringly individualistic, anthropocentric approach to rights.104 13.4.4  Remedial Perspectives

As indicated already, the fact that a case pursuing a strategic or public interest can be brought to Strasbourg does not necessarily mean that it will lead to a violation judgment or, if it does, to a practical impact. From a remedial perspective, the Court may decide to make no order at all, whether in the sense of ordering just satisfaction under Article 41 ECHR or in the sense of making a consequential order of individual or general measures under Article 46 ECHR.105 All of this is equally applicable to climate cases. Of the different possibilities in the Court’s remedial toolkit, a purely declaratory judgment or a modest non-pecuniary damages award is the most likely remedial outcome in environmental cases, and thus presumably in climate cases as well.106 Pecuniary damages awards and consequential orders remain exceedingly rare in the environmental case law, although the latter especially would have clear advantages in this context. While individual consequential orders aim at ending or remedying a specific Convention violation, general consequential orders – which originated in the Court’s pilot judgment procedure – address structural problems.107 In terms of remedial expectations, it should be noted that the Court’s just satisfaction awards are generally unpredictable and that there has never been a pilot judgment procedure in an environmental case.108 In other words, the Court has never officially treated these cases as systemic problems. It is quite possible that the Court will shy away from ordering any concrete measures in climate cases because of the sheer complexity of climate change, its technical nature and the fear of overstepping its proper role. And, even if the Court does rise to the remedial challenge here, states’ implementation of systemic changes may be delayed or lacking entirely. The complexity of climate change has been mentioned at various points throughout this contribution, and it is regularly noted by other scholars who examine the

104 Evadne Grant, ‘International Human Rights Courts and Environmental Human Rights: Re-Imagining Adjudicative Paradigms’ (2015) 6(2) Journal of Human Rights and the Environment 156. 105 Heller Keller, Corina Heri and Réka Piskóty, ‘Something Ventured, Nothing Gained? – Remedies before the ECtHR and their Potential for Climate Change Cases’ (2022) 22 Human Rights Law Review 1. 106 Ibid. 107 See Ibid, 3 and 17–19; Broniowski v Poland App no 31443/96 (ECHR, 22 June 2004) para 190; Broniowski v Poland App no 31443/96 (ECHR, Struck out of the List, 28 September 2005). 108 Ibid.

336  Corina Heri nexus between climate change and human rights law.109 Concerns have been raised about the ability of the existing human rights system to capture the diverse harms caused by global warming and to address the diffuse causes of these harms.110 In addition to the political impasses and collective action problems entailed by the need for a global response to climate change,111 and its links to ensuring questions of global and social justice, this requires adjudicators to understand scientific evidence and apply the law to a challenge of an unforeseen nature and scale. In the words of UN High Commissioner for Human Rights Michelle Bachelet, ‘[t]he world has never seen a threat to human rights of this scope’,112 meaning that climate change is both a unique challenge to human rights law and a unique opportunity to reimagine various aspects of it. That is certainly true here, in the remedial context. At the same time, it is important not to overstate the nature of this challenge, in the sense of portraying successful climate litigation as impossible. One concept that is ripe for reimagining in this context is the idea of success, including the ways in which the Court can ensure that violation judgments lead to changes in practice. Success is patently difficult to quantify in these types of cases. Victory may lead to the execution of a judgment and to the institution of practical changes on the domestic level, or it may open the door to other climate cases. Even if no Convention violation is found, these types of cases might lead to awareness, dialogue or grassroots mobilisation. It is certainly unlikely that any one Strasbourg judgment will solve the systemic, complex, multifaceted problem of climate change. But it can help to shape the debate and draw attention to rights impacts and vulnerabilities. To best facilitate a practical impact, the Court could also potentially use various elements of its remedial ‘toolkit’, for example applying the pilot judgment procedure, ordering general measures or issuing an advisory opinion on climate change.113 Each of these remedies has its pitfalls, including the Court’s penchant for declaratory judgments and its tendency to treat remedies as an afterthought. It is possible that these cases will offer an impetus to re-examine some of these problems and encourage the Court to see remedies as an integral part of ensuring practical impact. At the

109 Benoit Mayer, ‘Climate Change Mitigation as an Obligation Under Human Rights Treaties?’ (2021) 115 (3) American Journal of International Law 409, 412, citing among others Lavanya Rajamani, ‘Human Rights in the Climate Change Regime’ in John H. Knox and Ramin Pejan (eds), The Human Right to a Healthy Environment (Cambridge University Press 2018), at 250; Alan Boyle, ‘Climate Change, the Paris Agreement and Human Rights’ (2018) 67 International and Comparative Law Quarterly 759, 777. 110 Alan Boyle, ‘Climate Change, the Paris Agreement and Human Rights’ (2018) 67 International and Comparative Law Quarterly 759. 111 Benoit Mayer, ‘Climate Change Mitigation as an Obligation Under Human Rights Treaties?’ (2021) 115 (3) American Journal of International Law 409, 409. 112 Michelle Bachelet, UN High Commissioner for Human Rights, ‘Opening statement’ (42nd session of the Human Rights Council, 9 September 2019). 113 As discussed in Heller Keller, Corina Heri and Réka Piskóty, ‘Something Ventured, Nothing Gained? – Remedies before the ECtHR and their Potential for Climate Change Cases’ (2022) 22 Human Rights Law Review 1.

Climate Cases as Public Interest Litigation  337 very least, these cases have already become part of the ‘global conversation’ on contesting climate change.114 13.4.5  Interim Conclusion

If public interest human rights litigation to counter climate change is not only feasible, but in fact ongoing at the ECtHR, then it becomes possible to consider the strategic potential of these cases, and the lessons that can be learned for future applications. As discussed, links to climate science, access to financial support and expertise through environmental NGOs, and an awareness of the remedial possibilities will prove crucial to litigating these cases. These findings tie into recent work by Jacqueline Peel and Rebekkah Markey-Towler, who have identified six ‘ingredients that make up a successful recipe for climate litigation with strategic impact’.115 These factors relate to the selection of applicants, engaging with experienced legal teams, targeting notorious emitters, linking claims to climate science, making argumentative innovations and linking to protective duties, and seeking remedies that relate to systemic or policy changes. Understanding the climate cases pending before the ECtHR as strategic ones provides the first step in understanding the factors relevant to bringing – and winning – such cases. All of Peel and Markey-Towler’s factors, as well as the ones set out here, contribute to creating cases that will require the state to engage with the arguments made in favour of climate action. Focusing on activating the state’s duty of justification not only helps to reimagine understandings of what success can mean here, but also reframes strategic litigation not as a violation of the separation and balance of powers but as an integral part of that order.116 13.5 Substantive Law, Democratic Legitimacy and the Court as a Strategic Actor Throughout this chapter, it has been indicated that cases brought in the strategic or public interest are possible before Court, albeit with potentially mixed results. One aspect that has the potential to shape the outcome of public interest cases generally, and the climate applications currently pending before the Court specifically, is that they can raise major institutional questions that go beyond the individual case. This 114 Cordelia Christiane Bähr, Ursula Brunner, Kristin Casper and Sandra H. Lustig, ‘KlimaSeniorinnen: Lessons from the Swiss Senior Women’s Case for Future Climate Litigation’ (2018) 9 (2) Journal of Human Rights and the Environment 194. 115 Jacqueline Peel and Rebekkah Markey-Towler, ‘Recipe for Success?: Lessons for Strategic Climate Litigation from the Sharma, Neubauer, and Shell Cases’ (2021) 22 (8) German Law Journal 1484. 116 Chistrina Eckes, ‘Separation of Powers in Climate Cases: Comparing Cases in Germany and the Netherlands’ (Verfassungsblog, 10 May 2021) accessed 7 April 2022; cited in Lucy Maxwell, Sarah Mead and Dennis van Berkel, ‘Standards for Adjudicating the Next Generation of Urgenda-Style Climate Cases’ (2022) 13(1) Journal of Human Rights and the Environment 35.

338  Corina Heri is particularly evident when examining the possibilities for engagement with the merits of the claims at stake, an issue that has not been considered at length in the preceding parts of this chapter. In this regard, it is relevant to discuss the ways in which the Court itself can be expected to be strategic in its response to climate cases.117 One element of this strategy could be described as bureaucratic, namely related to concerns about the size of its docket, and the massive number of potential climate cases that could pour into the Registry if one or more of the pending climate cases succeed. Another element of this, however, is the reality of backlash against the Court and the aftermath of a reform process that sought to stymy the Court’s perceived activism. Understanding how the Court functions today, and the ways in which it responds to individual cases and to its case load overall, means understanding the backlash against it, which has consisted of efforts in recent history to curtail its authority or leave its jurisdiction altogether.118 This has included efforts to delegitimise the Court’s work by alleging that it has misused its authority.119 The reality of the post-Brighton conference era has seen the Court fighting back against efforts to ‘clip its wings’,120 including through institutional efforts to survive and ensure that the Court can continue to perform its role. The Court itself must be seen, against this backdrop, not only as an adjudicator deciding individual cases, but as a strategic actor looking beyond the scope of the individual case at its potential implications, the possible response from states and the potential future meanings of a given outcome. This can lead the Court to defer to domestic decision-making, take a procedural approach or emphasise the state margin of appreciation.121 Public interest cases in particular test the Court’s deferential role, as captured in the twin concepts of the margin of appreciation and the Court’s subsidiarity, which were recently enshrined in the preamble to the Convention.122 The risk that the Court will show an overall deferential approach to climate change is real, especially because of the complexity of the issue and the risk of backlash or a flood of similar follow-up cases. In the past, its approach to environmental cases has largely been minimalist, leading Ole W. Pedersen to note that the

117 Taking a different approach here than Steven Greer, who has argued that the Court is more bureaucratic than strategic (Steven Greer, ‘The New Admissibility Criterion’ in Samantha Besson [ed], The European Court of Human Rights after Protocol 14: Preliminary Assessment and Perspectives [Schulthess 2011] 35).  118 See generally Øyvind Stiansen and Erik Voeten, ‘Backlash and Judicial Restraint: Evidence from the European Court of Human Rights’ (2020) 64 (4) International Studies Quarterly 770, 771. 119 Jonas Tallberg and Michael Zürn, ‘The Legitimacy and Legitimation of International Organisations: Introduction and Framework’ (2019) 14 (4) The Review of International Organisations 581, 585–586. 120 Paraphrasing Laurence R. Helfer, ‘The Burdens and Benefits of Brighton’ (2012) 1(1) European Society of International Law (ESIL) Reflections 1. 121 Jacques Hartmann and Marc Willers QC, ‘Protecting Rights through Climate Change Litigation before European Courts’ (2022) 13(1) Journal of Human Rights and the Environment 90, 110–111. 122 Council of Europe, Protocol No 15 amending the Convention for the Protection of Human Rights and Fundamental Freedoms, 24 June 2013.

Climate Cases as Public Interest Litigation  339 ECHR ‘operates as a floor’ in the context of environmental protection.123 Pedersen has also criticised the Court’s past environmental case law for its excessively procedural or supervisory approach.124 It is not yet clear how the Court will respond to the climate cases pending before it, and whether it will adhere to its past environmental case law by maintaining the same procedural approach in climate cases. At the same time, the fact that the recognition of a new human right to a healthy environment is currently being discussed in Strasbourg,125 along with the fact that the Court has referred three of the pending climate cases to the Grand Chamber and granted them priority,126 indicates that there is at least an awareness of the great relevance of environmental and particularly climate interests for the protection of human rights today and in the future. Extrajudicially, several judges have noted the scale and urgency of the challenge to human rights posed by climate change,127 which adds to the impression that the Court is preparing to join the debate on this issue. At the same time, there are non-negligible tensions between the two key positions at stake here – the litigation strategies employed by climate applicants and the adjudicatory strategies that the Court has developed to ensure its survival. 13.6 Conclusion The European Court of Human Rights resists being strategically instrumentalised by rejecting claims for abstract review of domestic law or policy as part of its overall rejection of actiones populares. To bring a case to Strasbourg, applicants are required to prove that they have victim status, as well as crossing various other admissibility and substantive hurdles. However, at the same time, strategically motivated cases are not per se precluded by the Court’s admissibility criteria, and in fact, it can be argued that the Court has decided many cases of strategic or public interest import in the past. The climate cases currently pending before the Court can be situated here, as part of an overall overlap between public 123 Ole W. Pedersen, ‘The European Convention of Human Rights and Climate Change – Finally!’ (EJIL: Talk!, 22 September 2020) accessed 7 April 2022, as discussed in Laurens Lavrysen, ‘Greening the European Convention on Human Rights: How to Determine the Substance of Environmental Human Rights?’, draft paper on file with the author. 124 Ibid. 125 Parliamentary Assembly of the Council of Europe, Resolution 2396: Anchoring the right to a healthy environment: need for enhanced action by the Council of Europe, Provisional Version, 29 September 2021. 126 Duarte Agostinho and Others v Portugal and Others App no 39371/20 (ECHR, communicated on 13 November 2020, relinquished to the Grand Chamber on 29 June 2022); Verein KlimaSeniorinnen Schweiz and Others v Switzerland App no 53600/20 (ECHR, communicated on 17 March 2021, relinquished to the Grand Chamber on 26 April 2022); Carême v France App no 7189/21 (ECHR, not yet communicated, relinquished to the Grand Chamber on 31 May 2022). 127 Tim Eicke, ‘Climate Change and the Convention: Beyond Admissibility’ (2022) 3 (1) European Convention on Human Rights Law Review 8. See also Statements by various judges (Conference on ‘Human Rights for the Planet’, Strasbourg, 5 October 2020) recording available at accessed 7 April 2022.

340  Corina Heri and individual interests that is particularly acute in the context of environmental litigation but also extends beyond that context into the overall case law of the Court. At the same time, as the impending effects of anthropogenic climate change on human rights become ever more well-documented and the Court faces its first applications related to this phenomenon, established principles of the Court’s case law will be put to the test. This includes the Court’s subsidiary role and deferential positioning, the Convention’s admissibility requirements, substantive rights protection, questions of scientific evidence and even the matter of remedies. This contribution has touched on key aspects of the obstacles to bringing climate change cases to the Court, and on what successful applicants can expect from bringing such cases to Strasbourg. It has argued, ultimately, that the Court itself must be seen as a strategic institutional actor that is responsive to its own context and motivated not only by the arguments made in the individual case but by the need to ensure its own long-term survival. Bibliography Albers JH, ‘Human Rights and Climate Change: Protecting the Right to Life of Individuals of Present and Future Generations’ (2017) 28 Security and Human Rights 113. Atapattu S, ‘The Right to a Healthy Environment and Climate Change: Mismatch or Harmony?’ in John H Knox and Ramin Pejan (eds), The Human Right to a Healthy Environment (CUP 2018). Bähr CC, Brunner U, Casper K and Lustig SH, ‘KlimaSeniorinnen: Lessons from the Swiss Senior Women’s Case for Future Climate Litigation’ (2018) 9 (2) Journal of Human Rights and the Environment 194. Batros B and Khan T, ‘Thinking Strategically About Climate Litigation’ (Openglobalrights, 28 June 2020), accessed 7 April 2022. Besson S, ‘Human Rights: Ethical, Political... or Legal? First Steps in a Legal Theory of Human Rights’ in Donald Earl Childress III (ed), The Role of Ethics in International Law (CUP 2011). Boyle A, ‘Climate Change, the Paris Agreement and Human Rights’ (2018) 67 International and Comparative Law Quarterly 759. Eckes C, ‘Separation of Powers in Climate Cases: Comparing Cases in Germany and the Netherlands’ (Verfassungsblog, 10 May 2021) accessed 7 April 2022. Eicke T, ‘Climate Change and the Convention: Beyond Admissibility’ (2022) 3 (1) European Convention on Human Rights Law Review 8. Eicke T, ‘Human Rights and Climate Change: What Role for the European Court of Human Rights’, Goldsmiths University Inaugural Annual Human Rights Lecture (2 March 2021)

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342  Corina Heri Peel J and Markey-Towler R, ‘Recipe for Success?: Lessons for Strategic Climate Litigation from the Sharma, Neubauer, and Shell Cases’ (2021) 22 (8) German Law Journal 1484. Rajamani L, ‘Human Rights in the Climate Change Regime’ in John H Knox and Ramin Pejan (eds), The Human Right to a Healthy Environment (CUP 2018). Ritchie PDL, Clarke JJ, Cox PM and Huntingford C, ‘Overshooting Tipping Point Thresholds in a Changing Climate’ (2021) 592 Nature 517. Salzberg M, ‘The Marckx Case: The Impact on European Jurisprudence of the European Court of Human Rights’ 1979 Marckx Decision Declaring Belgian Illegitimacy Statutes Violative of the European Convention on Human Rights’ (1984) 13 Denver Journal of International Law and Policy 283. Savaresi A and Setzer J, ‘Rights-based Litigation in the Climate Emergency: Mapping the Landscape and New Knowledge Frontiers’ (2022) 13 (1) Journal of Human Rights and the Environment 7. Schall C, ‘Public Interest Litigation Concerning Environmental Matters Before Human Rights Courts: A Promising Future Concept?’ (2008) 20 (3) Journal of Environmental Law 417. Shelton D, ‘Significantly Disadvantaged? Shrinking Access to the European Court of Human Rights’ (2016) 16 (2) Human Rights Law Review 303. Spielmann D and Darcy J, ‘The European Court of Human Rights as a Guarantor of a Peaceful Public Order in Europe’ (2014) 3 (2) Cyprus Human Rights Law Review 106. Stiansen Ø and Voeten E, ‘Backlash and Judicial Restraint: Evidence from the European Court of Human Rights’ (2020) 64 (4) International Studies Quarterly 770. Tallberg J and Zürn M, ‘The Legitimacy and Legitimation of International Organisations: Introduction and Framework’ (2019) 14 (4) The Review of International Organisations 581. Theilen JT, ‘The Inflation of Human Rights: A Deconstruction’ (2021) 34 (4) Leiden Journal of International Law 831. Ulfstein G, ‘The European Court of Human Rights as a Constitutional Court?’ (2014) PluriCourts Research Paper No. 14-08 accessed 7 April 2022. Zimová A, Strategic Litigation Impacts: Roma School Desegregation (Open Society Foundations 2016). Zysset A, The ECHR and Human Rights Theory: Reconciling the Moral and the Political Conceptions (Routledge 2017).

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Climate Cases as Public Interest Litigation  343 Di Sarno et Autres c Italie App no 30765/08 (ECHR, 10 January 2012) (French version). Duarte Agostinho and Others v Portugal and Others App no 39371/20 (ECHR, communicated on 13 November 2020, relinquished to the Grand Chamber on 29 June 2022). Dudgeon v the United Kingdom App no 7525/76 (ECHR, 22 October 1981). The State of the Netherlands v Urgenda Foundation, Decision, 20 December 2019, ECLI: NL:HR:2019:2007, Supreme Court of the Netherlands. Fadeyeva v Russia App no 55723/00 (ECHR, 9 June 2005). German Bundesverfassungsgericht, 1 BvR 2656/18 (24 March 2021). Gorraiz Lizarraga and Others v Spain App no 62543/00 (ECHR, 27 April 2007). Greenpeace Nordic and Others v Norway App no 34068/21 (ECHR, communicated on 16 December 2021). Jugheli and Others v Georgia App no 38342/05 (ECHR, 13 July 2017). Klass and Others v Germany App no 5029/71 (ECHR, 5 December 1978). L’Erablière ASBL v Belgium App no 49230/07 (ECHR 24 February 2009). Marckx v Belgium App no 6833/74 (ECHR, 13 June 1979). Mex Müllner v Austria (ECHR, filed 25 March 2021) a yet-uncommunicated case brought against Austria on 25 March 2021 ( accessed 7 April 2022). Miroļubovs and Others v Latvia App no 798/05 (ECHR, 15 September 2009). Monnat v Switzerland App no 3604/01 (ECHR, 21 December 2006). ND and NT v Spain App nos 8675/15 and 8697/15 (ECHR, 13 February 2020). Roman Zakharov v Russia App no 47143/06 (ECHR, 4 December 2015). SAS v France App no 43835/11 (ECHR, 1 July 2014). Sdružení Jihočeské Matky v the Czech Republic App no 19101/03 (ECHR, 10 July 2006). Sejdić and Finci v Bosnia and Herzegovina App nos 27996/06 and 34836/06 (ECHR, 22 December 2009). Soering v the United Kingdom App no 14038/88 (ECHR, 7 July 1989). Tătar v Romania App no 67021/01 (ECHR, 27 January 2009). Tauira and 18 Others v France App 28204/95 (ECHR, 4 December 1995). Vallianatos and Others v Greece App nos 29381/09 and 32684/09 (ECHR, 7 November 2013). Verein KlimaSeniorinnen Schweiz and Others v Switzerland App no 53600/20 (ECHR, communicated on 17 March 2021, relinquished to the Grand Chamber on 26 April 2022). Zambrano v France App no 41994/21 (ECHR, 7 October 2021).

Index

access to public interest litigation 52–55 ACHPR see African Court on Human and Peoples’ Rights ACHR see American Convention actio popularis 45, 172–173, 318–319, 329; European Court of Human Rights (ECtHR) 266–267; inadequacy of 21–23; prohibition of 319–322 ad hoc jurisdiction 53 adjudication: consent to 181; ocean-climate matters 309–312; role in international environmental law 302 admissibility: public interest litigation 52–55; significant disadvantage 322 advisory arbitration 174 advisory function 173; across judicial bodies 174–176 advisory jurisdiction 178; climate change 190 advisory opinions 170–171, 173; climate change 190–192; legal effects of 183–192; public interest 174–183 advisory proceedings, Monetary Gold principle 160–163 Aerial Incident of 3 July 1988 112 African Court on Human and Peoples’ Rights (ACHPR) (AFCHPR) 17, 170, 177 African Union 178 Al Nashiri v. Poland 157–158 Al Warraq v. Indonesia 231 Albania: Monetary Gold case 142; Monetary Gold principle 139–140 Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v Russia) 43, 104, 109, 112 Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea 189 American Convention (ACHR) 10 amicus curiae briefs 27, 116–118; advisory opinions 181; International

Court of Justice 89; non-governmental organizations (NGOs) 235–236, 245– 247; non-governmental organizations (NGOs) in international investment arbitration 237–244; Situation in the State of Palestine 155–156; third-party investigation 212 amicus curiae participation 25, 27 ANSA see armed non-state actors Apotex 235 Apotex Holdings Inc. and Aptoex Inc. v. United States 240 appellate stages, advisory opinions 176 Application of the Convention on the Prevention and Punishment of the Crime of Genocide 23 arbitral tribunals 5, 150, 153, 228–229, 231–232, 236, 244–247, 305 arbitration: advisory arbitration 174; Chagos Marine Protected Area Arbitration 300; ICSID Arbitration Rule 235; investor-state arbitrations 228, 233–237; Monetary Gold principle 150– 153; see also international investment arbitration Argentina: Azurix v. Argentina 229; Suez v Argentina 236, 240; Urbaser v. Argentina 229–230, 232 Armed Activities on the Territory of the Congo (DRC v. Uganda) 105, 113, 116 armed non-state actors (ANSA) 281 Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA) 87, 138, 141–143, 148–149 Asylum case 112 Australia: East Timor case 145; Malta case 87; Nauru case 142–143; Nuclear Tests cases 84–85 Austria, Mex Müllner v Austria 330n78, 334 Aven case 150

346 Index Avena and Other Mexican National case 185 Azurix v. Argentina 229 backlash against the court, European Court of Human Rights (ECtHR) 337–338 Bankovic and Others v. Belgium and Nine Other Contracting States 156 Barcelona Traction 21, 40, 87, 137–138, 172, 305–306 Basic Principles and Guidelines on Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law 280 Bear Creek Mining Corporation v. Republic of Peru 240, 243 Belgium: Bankovic and Others v. Belgium and Nine Other Contracting States 156; Chagos Marine Protected Area Arbitration 300; Marckx v Belgium 324; Ping An v. Belgium 150n89 Belgium v. Senegal 119–120 beliefs 37; see also values Bellingcat 207 beneficiaries of public interest rules 41–45 Benetech 207 Berkley Protocol 208 bilateral disputes 81 bilateral investment treaties (BITs) 227–228, 230–231 Biloune v. Ghana 229 Biodiversity Beyond National Jurisdiction (BBNJ) Agreement 192–193 BITs see bilateral investment treaties Biwater Gauff case 25, 236, 241 Breard case 92 briefs, informal avenues of participation in contentious proceedings 117–118; see also amicus curiae briefs Broniowski case 326n55 Bundesverfassungsgericht 330 CAFTA see Central American Free Trade Agreement Canada, Gambia v. Myanmar 89 Carême v France 317 Caribbean Court of Justice 177 Caribbean Sea cases 114–115 Case of the Indigenous Communities of the Lhaka Honhat (Our Land) Association v. Argentina 189 CAT (Committee against Torture) Committee 286–287

causality 278 causation, climate change 306–309 Center for International Environmental Law (CIEL) 234 Central American Free Trade Agreement (CAFTA) 239 Centre for Legal Resources on behalf of Valentin Câmpeanu 321 CERD see Convention on the Elimination of All Forms of Racial Discrimination CESCR see International Covenant on Economic, Social and Cultural Rights cessation: enforcement of public interest litigation 60; human rights violations 278 Chagos Marine Protected Area Arbitration 149, 300 Chagossians 42 challenges of third-party investigation 214–221 Chevron v. Ecuador 152 children born out of wedlock, Marckx v Belgium 324 CIEL see Center for International Environmental Law civil society participation, public interest litigation 59 climate attribution 309 climate cases: Duarte Agostinho and Others v 33 Council of Europe Members States 317, 328n68, 329, 334; Greenpeace Nordic case 328n68, 330–331, 334; KlimaSeniorinnen v Switzerland 317, 329, 331n86, 334; Mex Müllner v Austria 330n78, 334; as public interest litigation 327–337; standing of NGOs 333–335; Tătar Romania 332; victim status requirements 330–333; vulnerability 330–333 climate change 295; adjudication 309–312; advisory opinions 190–192; causation 306–309; liability 306–309; oceanclimate litigation 302–309; oceanclimate nexus 297–302; public interest litigation 48–49; remedial perspectives 335–337; United Nations Convention on the Law of the Sea (UNCLOS) 297–302; see also climate cases climate litigation 53n155, 319 climate regime 295–296, 301–302 CO2 emissions 297, 299 collective interests 36 collective utility 256 Colombia 188–189

Index  347 Commission of Small Island States on Climate Change and International Law (COSIS) 48, 170–171, 192, 311 Committee against Torture (CAT Committee) 286–287 Committee of Economic, Social and Cultural rights 257 Committee on the Elimination of Racial Discrimination 285 Committee on the Rights of the Child 57–58, 190 common interests 43, 45; of humankind 98; justiciability of 17–20; to sue 23–24; third parties’ incidental character 26–27 common values 38–41; basis of public interests 36–38 communitarian norm 172 community interests 45, 57, 77, 98–99, 104, 171–172 compelling reasons, advisory opinions 180–183 compensation: enforcement of public interest litigation 60–61; reparation for human rights violations 278 complaints in abstracto 325 compulsory vaccination 263 consent to adjudication 181 contentious proceedings: formal avenues of participation 102–116; informal avenues of participation 116–121 Convention on the Elimination of All Forms of Discrimination against Women 276 Convention on the Elimination of All Forms of Racial Discrimination (CERD) 274, 276 Convention on the Law of the Sea (UNCLOS) 297–302, 304–305, 311 Cooper Mesa Mining v. Ecuador 231 cooperative responsibility 308 Cordella v Italy case 325 Corfu Channel case 114, 141–142 COSIS see Commission of Small Island States on Climate Change and International Law Costa Rica, Caribbean Sea cases 114–115 COVID-19 pandemic: foreign direct investment (FDI) 230; health-pass (France) 323; public health 259–265; vaccinations 260 credibility of third-party investigations 215–216 Croatia v. Serbia 158 cumulative responsibility 308

Czech Republic, Vavricka and Others v. Czech Republic 263–264 delays of investigations 206 Delimination in the Indian Ocean case 312 designated guarantor 20–21; common interest to sue 23–24; parties’ limited legal interest 21–24; third parties’ incidental character 24–28 Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights 176 diffusion of responsibility 308 discretionary power, advisory opinions 180–183 Dispute Settlement Mechanism, World Trade Organization 2, 4, 159 dispute settlement mechanisms 26, 299, advisory opinions 176 disputes 11, 52 domestic law, public interest 19 DRC v. Uganda 61, 105, 113, 116 “drop in the ocean argument” 53n155 Duarte Agostinho and Others v 33 Council of Europe Members States 317, 328n68, 329, 334 due diligence 307 East Timor case 21–22, 140, 145, 151 Eastern Carelia 161–162 ECHR see European Convention on Human Rights ECtHR see European Court of Human Rights Ecuador 152n103; Chevron v. Ecuador 152; Cooper Mesa Mining v. Ecuador 231 El Salvador: Military and Paramilitary (Nicaragua v. USA) 105; Pacific Rim Cayman LLC v. Repubic of El Salvador 239–240 electronic evidence 203n5 El-Masri v. Macedonia 157 enforcement of public interest litigation 60–63 enforcers of international law, states 19 entities, requestion, public interest advisory opinions 176–179 environmental law, Inter-American Contribution to Environmental Law 188–190 equality of arms 218 erga omnes 13–14, 21–22, 39, 40–41, 51, 77, 85–87, 138, 143, 153, 305

348 Index erga omnes obligations 137, 150, 159, 172 erga omnes partes 13, 23, 39, 172, 306 erga omnes partes obligations 1, 54, 56–57, 156 essential parties 160 European Committee of Social Rights 257–258 European Communities, Turkey and 159–160 European Convention on Human Rights (ECHR) 10 European Court of Human Rights (ECtHR) 57, 232, 255, 309, 317–318, 339–340; actio popularis 266–267; advisory opinions 175; backlash against the court 337–338; case against public interest litigation 319–324; case for public interest litigation 324–327; Monetary Gold principle 156–158; pilot judgment procedure 323–324; prohibition of actiones populares 319–322; public interest 10; remedial arguments 322–323; remedial perspectives 335–337; right of individual petition and its abusers 323– 324; scientific evidence 332; standing of NGOs 333–335; standing of NGOs and victims’ organisations 333–335; victim status requirements 319–322, 330–333; vulnerability 330–333; see also climates cases European Social Charter 257 evidence, third-party investigation 221–222 Exclusive Economic Zone and Continental Shelf Act, New Zealand 187 eyeWitness 207 fair and equitable treatment (FET) principle 231 fair trials 218 FDI see foreign direct investment FET principle see fair and equitable treatment (FET) principle foreign direct investment (FDI) 228, 230 Foresti v. South Africa 243–244 formal avenues of participation in contentious proceedings 101–116 Framework on Climate Change (UNFCCC) 301, 303 France: Carême v France 317; COVID-19 health pass 323; head-covering ban 320; Nuclear Tests cases 84–85 Free Trade Commission, Statement on Non-Disputing Parties 10

Frontier Dispute case 144n45 full reparations 278 Gabcikovo-Nagymaros case 117–118 GAIRS 301–302 Gambia v. Myanmar 51–52, 56, 80n32, 89, 120, 138–139 General Assembly, United Nations 310 genocide 104 Genocide Convention 23, 61, 76n4, 120, 139 Ghana, Biloune v. Ghana 229 Global Legal Action Network (GLAN) 334n103 Global North 49 global public goods 37–38, 44 Global South 49 globalisation of disease, public health 260–265 Grand Interoceanic Canal of Nicaragua 188 greenhouse gas (GHG) emissions 297–299, 311 Greenpeace Nordic case 328n68, 330–331, 334 Gulf of Maine case 114 Hawaiian Kingdom, Larsen/Hawaiian Kingdom 151, 163–164 head-covering ban, France 320 health, public health 256–259 health-related rights 254; during globalisation of diseases 260–265 human rights 39, 57; climate change 304n45; contemporary notion of public interest 254–256; erga omnes 40–41; international investment arbitration 244–247; public health 256–259 human rights adjudication, public interest litigation 265–270 Human Rights Committee 285 Human Rights Council, United Nations 277, 282–283 human rights entitlements 326 human rights law 39 human rights protection, third-party investigation 218–221 human rights violations: right to a remedy 274–277; state responsibility 277–279; UN experts 281–284 Husayn (Abu Zubaydah) v. Poland 158 IACtHR see Inter-American Court on Human Rights

Index  349 ICC see International Criminal Court ICCPR see International Covenant on Civil and Political Rights ICESCR see International Covenant of Social, Economic and Cultural Rights ICL see international criminal law ICP see international criminal procedure ICSID Arbitration Rule 235 ICTs see international courts and tribunals (ICTs) 124 IGOs 110–112 IISD 234 ILC see International Law Commission ILC Draft Articles 39 ILGA see International Lesbian, Gay, Bisexual, Trans and Intersex Association inadequacy of actio popularis 21–23 incidental character, third parties 24–28 indefinite public and interests 12; indeterminate public 14–16; unlimited interests 12–14 indeterminate public 14–16 indispensable parties 139, 161 individuals, formal avenues of participation in contentious proceedings 112–116 influence, third-party investigation 217–218 informal avenues of participation in contentious proceedings 116–121 Inter-American Commission 10 Inter-American Commission of Human Rights 190 Inter-American Contribution to Environmental Law 188–190 Inter-American Court on Human Rights (IACtHR) 10, 48, 188–189, 232, 266, 288 interest of international community 77–78 international adjudication 75 international community 43–44; of states 44–45 International Convention for the Protection of All Persons from Enforced Disappearance 276 International Court of Justice 13, 48, 75, 99–100, 170; advisory opinions 184– 185; amicus curiae briefs 89; climate change 191, 305; informal avenues of participation in contentious proceedings 116–121; Malta case 87n73; mapping participation in contentions proceedings, formal participation 102–116; Monetary Gold principle 144–147; third-party intervention 78–82; see also third-party intervention

international courts and tribunals (ICTs) 99, 124; evidence 221–222; human rights protection 219–220 International Covenant of Social, Economic and Cultural Rights (ICESCR) 257 International Covenant on Civil and Political Rights (ICCPR) 231, 275 International Covenant on Economic, Social and Cultural Rights (CESCR) 275 International Criminal Court 2n7; Monetary Gold principle 153–156; reparations 288; Rules of Procedure and Evidence (RPE) 212 international criminal law (ICL) 204, 206– 207; role for public interest litigation 209–214; third-party investigation 214–221 international criminal procedure (ICP) 204; public interest litigation 211–214; thirdparty investigation 214–221 international human rights law 39 international investment arbitration, nongovernmental organizations (NGOs) as amicus curiae 237–244 international investment law 245; see also bilateral investment treaties (BITs) international law 12–13, 98; public interest in 172–174 International Law Commission (ILC), United Nations 277 International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA) 325 international litigation 48 international public interest organisations 310 International Tribunal for the Law of the Sea (ITLOS) 2, 48, 54–55, 63, 79, 177, 311; advisory opinions 170, 184; climate change, 192–194; Monetary Gold principle 147–150; protection of humankind 186–187; Seabed Dispute Chamber 175–176, 186 international tribunals, legitimacy of 268 International Union for Conservation of Nature (IUCN) 187 inter-state disputes 1 inter-state litigation 56 intervention as of right 83 intervention in public interest, obstacles and challenges to 82–94 intervention, nature of 88–90 investigation, open-source investigation 204n6; see also third-party investigation

350 Index investment treaties/agreements: foreign direct investment (FDI) 228, 230; lack of focus on public interest issues and human rights 229–233; see also bilateral investment treaties investor-state arbitrations 228, 230; jurisdiction 229–231; jurisprudence 229, 231; non-governmental organizations (NGOs) participation in 233–237 Ireland v. the UK 267 Isla Portillos 115 Israel, Situation in the State of Palestine 154–155 Italy: Cordella v Italy 325; Monetary Gold principle 139–140; Norstar case 148–149 ITLOS see International Tribunal for the Law of the Sea IUCN see International Union for Conservation of Nature Japan, Whaling case 92–93 judicial bilateralism, public interest litigation and 51–63 judicial bodies, advisory function 174–176 judicial decisions, enforcement of 60–63 jurisdiction 139; ad hoc jurisdiction 53; advisory jurisdiction 178; climate change 304; investment treaties/agreements 229–230; investor-state arbitrations 230–231; public interest litigation 52–55; ratione personae 173; treaty-based jurisdiction 53 Jurisdiction of the European Commission of the Danube between Galatzs and Braila 174 jurisprudence: investor-state arbitrations 229, 231; United Nations 285–288 jus cogens norms 13, 40–41 jus standi 21 justiciability of common interests 17–20 KlimaSeniorinnen v Switzerland 317, 329, 331n86, 334 Kyoto Protocol 295 Larsen v. Hawaiian Kingdom doctrine 54 Larsen/Hawaiian Kingdom 151, 152, 163–164 League of Nations 176 Legal Consequences of the Separation of the Chagos Archipelago from Mauritius 180 legal effects of advisory opinions 183–192

legal interest 83–84 legal standing 138 Legality of the Treat or Use of Nuclear Weapons 179 liability 278; climate change 306–309 living instrument doctrine 267 Lockerbie case 91 locus standi 22, 27, 87, 147, 333 LOS system 297 Lund-London Guidelines 208 Maldives 312 Malta case 86–87 Marckx v Belgium case 324 margin of appreciation doctrine 255n8, 263 Maritime Delimitation 115 Marshall Islands 145n53 Marshall Islands case 48, 52–53, 56 Mauritius 180, 312; Chagos Marine Protected Area Arbitration 300 Mauritius/Maldives 54–55, 62, 149, 152, 161, 164 Methanex Corporation v. United States of America 236, 238–239 Mex Müllner v Austria 330n78, 334 Mexico: advisory opinions 185; Tecmed v. Mexico 229, 232 Military and Paramilitary (Nicaragua v. USA) 105, 109, 119, 121 Mondev v USA 229 Monetary Gold principle 54, 63, 139–140, 163–165; advisory proceedings 160–163; arbitration 150–153; European Court of Human Rights (ECtHR) 156–158; International Court of Justice 144–147; International Criminal Court 153–156; International Tribunal for the Law of the Sea 147–150; state responsibility and 140–143; World Trade Organization 158–160 multilateralism 1 Myanmar: Application of the Convention on the Prevention and Punishment of the Crime of Genocide 23; Gambia v. Myanmar 51–52, 56, 80n32, 89, 120, 138–139 NAFTA, Methanex Corporation v. United States of America 238–239 National Bank of Albania in Rome 139–140 nature of public interests 35–41 Nauru case 142–143

Index  351 Netherlands, Gambia v. Myanmar 89 New Zealand: Exclusive Economic Zone and Continental Shelf Act 187; Nuclear Tests cases 84–85; Whaling case 92–93 Nicaragua 188; Caribbean Sea cases 114–115 Nicaragua v. USA 105, 109, 119, 121 non-circumvention 163 non-governmental organizations (NGOs) 59, 118n112, 118n113, 203, 207; amicus curiae briefs 235, 237–247; complaints 258n23; investor-state arbitrations 228; participation 102; participation in investor-state arbitration 233–237; third-party investigation 212, 215–222 Non-Proliferation of Nuclear Weapons (NPT) 145 non-repetition, enforcement of public interest litigation 60 non-state actors (NSAs) 100–101; advisory opinions 179; mapping participation in contentions proceedings 101–116 norms 13; erga omnes 40–41, 77; jus cogens norms 40–41; public interest norms 77 Norstar case 148–149 North American Free Trade Agreement (NAFTA) 119 NPT see Non-Proliferation of Nuclear Weapons NSAs see non-state actors nuclear disarmament 53 Nuclear Disarmament cases 144–147 Nuclear Tests cases 80n33, 84–85, 109 nuclear weapons 105 obiter dictum 56, 137 Obligation to Prosecute or Extradite (Belgium v Senegal) 119–120 obligations, erga omnes 39, 138 OC-23/17 The Environment and Human Rights 185–186, 188, 190 ocean-climate litigation 302–309 ocean-climate nexus: adjudication 309– 312; United Nations Convention on the Law of the Sea (UNCLOS) 297–302 OIC see Organisation of Islamic Cooperation open-source investigation 204n6 Organisation of Islamic Cooperation (OIC) 120

Pacific Rim Cayman LLC v. Republic of El Salvador 239–242 Panama, Norstar case 148–149 Paris Agreement 295, 299 participation 101; informal avenues of participation in contentious proceedings 116–121; in investorstate arbitration by non-governmental organizations 233–237; mapping in contentious proceedings, formal avenues of participation 101–116; in proceedings, advisory opinions 179–180; in public interest litigation 58–59 parties’ limited legal interest, designated guarantor 21–24 party autonomy, third-party intervention 90–92 PCIJ see Permanent Court of International Justice peace 38 peoples 42 Permanent Court of International Justice (PCIJ) 172, 174 pertinence 10 Peru, Bear Creek Mining Corporation v. Republic of Peru 240, 243 Piero Foresti, Laura de Carli and Others v. The Republic of South Africa 243–244 pilot judgment procedure, European Court of Human Rights (ECtHR) 323–324 Ping An v. Belgium 150n89 Poland: Al Nashiri v. Poland 157–158; Husayn (Abu Zubaydah) v. Poland 158 pollution, Cordella v Italy 325 Portugal, East Timor case 145 preliminary rulings, advisory opinions 175–176 procedural fairness and equality, third-party intervention 92–94 procedural issues, third-party intervention 90 professionalism, third-party investigation 216–217 profit collectif 43 prohibition of actiones populares 319–322 promoting structural change, public interest litigation 47 proprio motu 106, 115, 211 prosecution of grave crimes: role of thirdparty investigations 205–208; third-party investigation 217–218 protection of humankind, ITLOS 186–187

352 Index protection of individuals or groups of individuals 98 public, defined 41–45 public domain, information transmitted by external actors 121 public goods 37–38 public health 256–265, 268–270 public interest advisory opinions: advisory function across judicial bodies 174–176; discretionary power and compelling reasons 180–183; participation in proceedings 179–180; requesting entities 176–179 public interest norms 77 public interest rules, beneficiaries of 41–45 Questions Relating to the Obligation to Prosecute or Extradite 305 ratione materiae jurisdiction 18, 20 ratione personae jurisdiction 173 rehabilitation for victims of torture 286–287 reliability of third-party investigations 215–216 remedial arguments, European Court of Human Rights (ECtHR) 322–323 remedial perspectives, climate cases 335–337 remedy of satisfaction 287 reparation for human rights violations: state responsibility 277–279; UN experts 281–284; UN jurisprudence 285–288; United Nations 280–281 requesting entities, public interest advisory opinions 176–179 res judicata 150 resilient bilateralism of relationships 1 Resolution No. 3/21 Climate Emergency: Scope of Inter-American Human Rights Obligations, Inter-American Court on Human Rights (IACtHR) 190 Responsibilities and obligations of States with respect to activities in the Area 185–186 responsibility, shared responsibility 308 restitution, reparation for human rights violations 278–279 right of individual petition and its abusers, European Court of Human Rights (ECtHR) 323–324 right to a remedy, human rights violations 274–277

right to health 256–259 Rohingya group 1n5, 23, 42 Roma rights cases 322 Romania, Tătar Romania 332 Rome Statute 153–154, 207, 210–211, 213 RPE see Rules of Procedure and Evidence rules in international law 39–41 Rules of Conduct for the Understanding on Rules and Procedures Governing the Settlement of Disputes (WTO DSU) 11 Rules of Procedure and Evidence (RPE) 212 Russia: Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v Russia) 43, 104, 109, 112; conflict with Ukraine 76n4 San Salvador Protocol 257 SAS case 320 satisfaction, enforcement of public interest litigation 60 Seabed Dispute Chamber of ITLOS 175–176, 186 Security Council, United Nations 310 Senegal, Obligation to Prosecute or Extradite (Belgium v Senegal) 119–120 Serbia, Croatia v. Serbia 158 sexual orientation and gender identity (SOGI) 324–325 shared responsibility 308 shared values 20 significant disadvantage 322 Situation in the State of Palestine 154–155 Social and Economic Rights Action Center & the Center for Economic and Social Rights v. Nigeria (ACmHPR 1996) 57 social rights 254 SOGI see sexual orientation and gender identity South Africa, Piero Foresti, Laura de Carli and Others v. The Republic of South Africa 241, 243–244 South China Sea Arbitration 300 South China Sea case, 153 South West Africa case 21, 48, 179, 306 Spain, Norstar case 148–149 Special Rapporteur, United Nations 282 SS Wimbledon case 172 standing 138; climate change 305–306; of non-governmental organizations 333–335; public interest litigation 55–58; to request advisory opinions 171

Index  353 state responsibility: human rights violations 277–279; Monetary Gold principle 140–143 Statement of the NAFTA Free Trade Commission 235 Statement on Non-Disputing Parties, Free Trade Commission 10 states 100–101; enforcers of international law 19; formal avenues of participation in contentious proceedings 106–111; legal standing 138 states parties, human rights 275 Strasbourg: case against public interest litigation 319–324; case for public interest litigation 324–327 strategic litigation 45–46, 318–319; see also public interest litigation strategic use of public interest litigation 46–51 sue, common interest to sue 23–24 Suez v Argentina 15, 25, 236, 240 Switzerland, KlimaSeniorinnen v Switzerland 317, 329, 331n86, 334 Syrian Archive 207 Syrian Justice and Accountability Centre 207 Tătar Romania 332 technology, third-party investigation 208 Tecmed v. Mexico 229, 232 Texaco Petroleum Company 152n103 third parties, incidental character 24–28 third-party intervention 75–76, 78–82, 109; nature of intervention 88–90; nature of the interest required 82–88; party autonomy 90–92; procedural fairness and equality 92–94; procedural issues 90; public interest litigation 58–59 third-party investigation 204; challenges from 214–221; human rights protection 218–221; positive impact of 221–222; role in prosecution of grave crimes 205–208 tracking legal effects, advisory opinions 185–192 Trans-Tasman Resources Limited v. The Taranaki–Whanganui Conservation Board 187 travaux preparatoires 276n13 treaty-based jurisdiction 53 Truth and Reconciliation Commission 285 Turkey–Restrictions on Imports of Textiles and Clothing Productions case 159–160

Ukraine, conflict with Russia 76n4 Ukraine v. Russia 109, 112, 138 UNCITRAL 247 UNCLOS see United Nations Convention on the Law of the Sea UNFCCC see United Nations Framework on Climate Change United Kingdom: Ireland v. the UK 267; Monetary Gold principle 144n47, 145–146 United Nations: advisory opinions 179; Basic Principles and Guidelines on Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law 280; Committee on the Rights of the Child 57–58, 190; Convention on the Elimination of All Forms of Racial Discrimination (CERD) 274, 276; Convention on the Law of the Sea (UNCLOS) 153, 164, 186–187, 191, 296, 297–302, 304–305, 311; experts on human rights 281–284; Framework on Climate Change (UNFCCC) 192–193, 295, 301, 303; General Assembly 310; human rights 57; Human Rights Council 277, 282, 283; Independent International Fact-Finding Mission 120; International Court of Justice 13; International Law Commission (ILC) 277; jurisprudence 285–288; principles on reparation 280–281; Security Council 310; Working Group on Arbitrary Detention 283 United States: Apotex Holdings Inc. and Aptoex Inc. v. United States 240; Methanex Corporation v. United States of America 236, 238–239; Mondev v USA 229; public interest law 24; USA v. Iran 121 United States Diplomatic and Consular Staff in Tehran (USA v. Iran) 121 Universal Declaration of Human Rights 257, 274 unlimited interests 12–14 Urbaser v. Argentina 229–230, 232 Urgenda case 308, 317 USA v. Iran 121 use of force 104–105, 147 US–FSC case 159 vaccinations, public health 260, 263–264 values, common values 36–41

354 Index Vanuatu 48, 170 Vavřička and Others v. Czech Republic 263–264 VCLT see Vienna Convention on the Law of Treaties victim status requirements 319–322; due to climate change 330–333 victimhood 320–322 victims 57–58 victims’ organisations, standing before courts 333–335 Vienna Convention on the Law of Treaties (VCLT) 244–245 Von Pezold v. Zimbabwe 231 vulnerability 321; climate cases 330–333 Whaling case 92–93 WITNESS 207

Working Group on Arbitrary Detention, United Nations 283 World Health Organization (WHO) 262 World Trade Organization 49; dispute settlement 79, 119; Dispute Settlement Mechanism 2; essential parties 160; Monetary Gold principle 158–160; Rules of Conduct for the Understanding on Rules and Procedures Governing the Settlement of Disputes (WTO DSU) 11 WTO DSU (World Trade Organization Rules of Conduct for the Understanding on Rules and Procedures Governing the Settlement Disputes) 11, 15 Youth for Climate Justice 329n71 Zimbabwe, Von Pezold v. Zimbabwe 231