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Published online by Cambridge University Press: 02 November 2016
International law scholars frequently seek to participate in international legal proceedings as amici curiae. Often they do so by ‘piggy-backing’ onto the submissions of NGOs and other advocacy groups. Occasionally – but increasingly in recent years – they do so in their own names, purporting to offer ‘pure’ academic expertise, and generating certain expectations of scholarly neutrality. This article focuses on the latter trend, which the authors argue has the potential to re-shape the scholar-adjudicator dialogue in interesting ways. Under the traditional approach towards ‘teachings’, the decision of whether, how and with whom to engage is firmly in the hands of the adjudicators. The proliferation of academic amicus briefs threatens to disrupt this arrangement. It also brings certain benefits: the briefs are often more ‘on point’ than doctrinal writings, while openness to unsolicited academic submissions encourages plurality and reduces reliance on reputation as a measure of scholarly quality. Our survey of the emerging practice across various international courts and tribunals indicates that adjudicators tend to be reticent when it comes to the reception of unsolicited academic amicus briefs, however, we identify several instances of productive engagement. This leads us to conclude that it would be unduly gloomy to characterize the emerging practice as a ‘dialogue of the deaf’. A fairer assessment would be that the academic amicus trend is bringing about a modest adjustment in the way that international law scholars and adjudicators engage with each other.
1 For a general discussion of the interaction between these two spheres, see M. Lachs, The Teacher in International Law: Teachings and Teaching (1987), 228.
2 See Stahn, C. and De Brabandere, E., ‘The Future of International Legal Scholarship: Some Thoughts on “Practice”, “Growth” and “Dissemination”’, (2014) 27 LJIL 1 CrossRefGoogle Scholar, especially at 2, where the authors draw on the reflections of A. Oraison.
3 Fallon, R., ‘Scholars’ briefs and the vocation of law professors’, (2012) 4 Journal of Legal Analysis 223, at 237CrossRefGoogle Scholar.
4 We refer to 28 academic amicus briefs in this article. The pre-2010 numbers are skewed by the fact that in the Blaškić case (infra, note 118) the ICTY accepted nine scholars’ briefs, after issuing an open invitation (but not specific invitations) for scholars to intervene.
5 Greenberg, D. (ed.), Jowitt's Dictionary of English Law (3rd edn., 2010)Google Scholar.
6 J. Bouvier, A Law Dictionary (Bouvier's Law Dictionary) (2006, originally 1843), 106.
7 J. Law (ed.) Oxford Dictionary of Law (2015), 35.
8 Abbott's Dictionary of Words and Phrases, as cited in Krislov, infra note 12, at 694.
9 Oxford Dictionary of Law, supra note 7.
10 Bouvier's Law Dictionary, supra note 6.
11 H.J. Holthouse, A New Law Dictionary (Holthouse Law Dictionary) (1850), 19.
12 For an account of the evolution of the amicus function, see S. Krislov, ‘The amicus curiae brief: From friendship to advocacy’, (1962) 72 Yale Law Journal 694.
13 See review in S. Chandra Mohan, ‘The amicus curiae: Friends no more?’, (2010) Singapore Journal of Legal Studies 352, at 356–7. Also Angell, E., ‘The amicus curiae American development of English institutions’, (1967) 16 International & Comparative Law Quarterly 1017 CrossRefGoogle Scholar.
14 Lowman, M., ‘The litigating amicus curiae: When does the party begin after the friends leave?’, (1991) 41 American University Law Review 1243, at 1250Google Scholar; also generally Koch, J., ‘Making room: New directions in third party intervention’, (1990) 48 University of Toronto Faculty of Law Review 151 Google Scholar; P. Collins, Friends of the Supreme Court: Interest groups and judicial decision making (2008).
15 Krislov, supra note 12, at 697.
16 See E. Metcalfe, To assist the court: Third party interventions in the UK, (2009), 39.
17 Coslin, C. and Lapillonne, D., ‘France and the concept of amicus curiae: what lies ahead?’, Paris International Litigation Bulletin No. 4 (Hogan Lovells: 2012)Google Scholar, available at www.hoganlovells.cn/files/Publication/15047541-a7a6-476a-ae82-ffeb97083564/Presentation/PublicationAttachment/e6a90da3-ee0c-49c9-b87c-0ac138f8217e/6%20-%20France%20and%20the%20concept%20of%20amicus%20curiae.pdf.
18 Supreme Court of the United Kingdom, The Supreme Court Rules 2009, No. 1603 (L.17), Rule 35.
19 Ibid., Rule 26.
20 Ibid., Rule 20.
21 Metcalfe, supra note 16, at 7–8.
22 Neudorf, L., ‘Intervention at the UK Supreme Court’, (2013) 2 Cambridge Journal of International and Comparative Law 16, at 25CrossRefGoogle Scholar, observes that 36.5 per cent of cases in the Supreme Court in 2012 involved third-party interventions.
23 As to the third category, ‘amici’ are frequently appointed to represent defendants who refuse representation in international criminal proceedings. However, this is not an activity that can be termed ‘scholarly’ in any sense, and it is therefore outside the scope of this article.
24 A. Franze and R.R. Anderson, ‘The Supreme Court's reliance on Amicus Curiae in the 2012–13 term’, The National Law Journal (18 September 2013), available at www.arnoldporter.com/resources/documents/NLJ_The%20Supreme%20Court's%20Reliance%20on%20Amicus%20Curiae%20in%20the%202012-13%20Term_Franze%20and%20Anderson.pdf.
25 Ibid.
26 Ronald Dellums v. George Bush (D.D.C. 1990): Memorandum Amicus Curiae of Law Professors, (1991) 27 Stanford Journal of International Law 257.
27 Ibid.
28 Hamdan v. Rumsfeld 548 US 557, Amicus Brief of Louis Henkin et al.
30 Rules of the United States Supreme Court, Rule 37.
31 Fallon, supra note 3, at 228.
32 Ibid., at 233–4.
33 Ibid., at 234.
34 Ibid., at 228.
35 See our review of the practice at Section 4, infra.
36 See, for example, De Brabandere, E., ‘Rationale of amicus curiae interventions in international economic and investment disputes’, (2011–2012) 12 Chicago Journal of International Law 85 Google Scholar; also, Bartholomeusz, L., ‘The amicus curiae before international courts and tribunals’, (2005) 5 Non-State Actors and International Law 209, at 283CrossRefGoogle Scholar; Marceau, G. and Hurley, M., ‘Transparency and Public Participation in the WTO: A report card on WTO transparency mechanisms’, (2012) 4 Trade, Law and Development 19 Google Scholar.
37 Steger, D., ‘Amicus curiae: Participant or friend? The WTO and NAFTA experience’, in von Bogdandy, A., Marvoidis, P.C. and Mény, Y. (eds.), European integration and international coordination: Studies in honor of Clause-Dieter Ehlermann (2002) 419, at 421–2Google Scholar; Bartholomeusz, supra note 36, at 278.
38 Art. 34(2) ICJ Statute. Note, however, that memorials by NGOs have occasionally been appended to those of states. For a discussion of the ICJ practice, see De Brabandere, supra note 36, at 91–4.
39 On the public interest rationale, see De Brabandere, supra note 36, at 103.
40 See submission to the ICJ in the Asylum case, by the International League for the Rights of Man in 1950. The submission was not accepted as it was determined that the League was not a ‘public international organization’, and thus does not qualify according to the conditions of Art. 34 of the ICJ Statute.
41 See Letter from Professor W.M. Reisman to the Registrar, 10 September 1970, ICJ Pleadings 1971, Vol. II, 636; Letter from the Registrar to Professor W.M. Reisman, 6 November 1970, ICJ Pleadings 1971, Vol. II, at 638.
42 See, for example, a factual review of the participation of NGOs as amici before the ECtHR in Van den Eynde, L., ‘An empirical look at the Amicus Curiae practice of human rights NGOs before the European Court of Human Rights’, (2013) 31 Netherlands Quarterly of Human Rights 271, at 280CrossRefGoogle Scholar. For a review of the cases in which amici attempted to intervene in investment arbitration, see Bastin, L., ‘The Amicus Curiae in investor-state arbitration’, (2012) 1 Cambridge Journal of International and Comparative Law 208 CrossRefGoogle Scholar. For a similar review in a WTO litigation context, see Marceau and Hurley, supra note 36.
43 This practice is particularly widespread in the ECtHR. See generally Van den Eynde, supra note 42.
44 175 U.S. 677 (1900), 700.
45 Indeed only in a very small number of cases has the ICJ explicitly relied on academic sources. See Peil, M., ‘Scholarly writings as a source of law: A survey of the use of doctrine by the international court of justice’, (2012) 3 Cambridge Journal of International and Comparative Law 136, at 151CrossRefGoogle Scholar.
46 ICJ/Reisman correspondence, supra note 41, at 638–9.
47 For commentary on the NAFTA and ICTY practice regarding academic amici, see Sections 4.2.2 and 4.2.5, infra.
48 See, for example, the list of the most cited scholars by the ICJ, in Peil, supra note 45, at 158–60.
49 Art. 38 (1)(d) ICJ Statute.
50 Concerns regarding the scientific quality of amicus briefs were raised in the US, see, for example, Rustad, M. and Koenig, T., ‘The supreme court and junk social science: Selective distortion in amicus briefs’, (1993) 72 North Carolina Law Review 91 Google Scholar. In other studies respondents answered that amicus briefs could be improved through ‘better social science research’: see Flango, V. et al., ‘Amicus curiae briefs: The court's perspective’, (2006) 27 The Justice System Journal 180, at 189Google Scholar.
51 Fallon, supra note 3, at 228.
52 Ibid.
53 Ibid.
54 K. Anderson, ‘Richard Fallon on Law Professor Amicus Briefs’, Opinio Juris, 28 October 2011, available at opiniojuris.org/2011/10/28/richard-fallon-on-law-professor-amicus-briefs/.
55 See the review of the most cited scholars in the ICJ, Peil, supra note 45, at 158–60.
56 See, for instance, the invitation to submit an amicus curiae brief issued by the Extraordinary Chambers in the Courts of Cambodia to Professor A. Cassese, Professor K. Ambos, and McGill, University Centre for Human Rights and Legal Pluralism. See also an invitation to submit an amicus curiae brief issued by the SCSL to Professor D. Orentlicher in Prosecutor v. Kallon and Kamara, Decision on challenge to jurisdiction: Lomé Accord Amnesty, Case No. SCSL-2004-15-AR72(E) and SCSL-2004-16-AR72(E), A. Ch., 13 March 2004, at the decision's preamble. See also the Taylor case discussed below, infra note 57.
57 Prosecutor v. Taylor (Charles Ghankay), Decision on Immunity from Jurisdiction, Case No. SCSL-2003-01-I, A. Ch., 31 May 2004.
58 Ibid., para. 1.
59 Ibid.
60 Ibid., para. 2.
61 Ibid.
62 Ibid., para. 34.
63 Ibid., para. 41.
64 Ibid., para. 51.
65 SCSL Rules of Court, Rule 74. Like other international criminal tribunals (e.g., Lebanon, Cambodia), the SCSL takes the wording of its amicus provision from the ICTY.
66 See United States – Import prohibition of certain shrimp and shrimp products, Report of the Appellate Body, WT/DS58/AB/R (1998), para. 104–10. This decision was later reaffirmed in several other cases, see, for example, United States – Imposition of countervailing duties on certain hot-rolled lead and Bismuth carbon steel products originating in the United Kingdom, Report of the Panel, WT/DS138/R (1999), para. 6.8. The Panel in this case rejected the amicus submission as it was submitted too late; United States – Imposition of countervailing duties on certain hot-rolled lead and Bismuth carbon steel products originating in the United Kingdom, Report of the Appellate Body, WT/DS138/AB/R (2000), para. 39; Australia – Measures affecting importation of salmon – recourse to Article 21.5 by Canada, Report of the Panel WT/DS18/RW (2000), paras. 7.8–7.9; European Communities – Trade Description of Sardines, Report of the Appellate Body, WTO Doc. WT/DS231/AB/R (2002), para. 157.
67 L. Rubini, ‘Written submission of non-party amicus curiae’, submitted in Canada – Certain measures affecting the renewable energy generation sector, WT/DS412, WT/DS426 (2013) [Canada FIT].
68 R. Howse, ‘Amicus Submission’, submitted in United States-Measures concerning the importation, marketing and sale of tuna and tuna products, WT/DS381 (2012) [US Tuna].
69 R. Howse, J. Langille, and K. Sykes, ‘Written submission of non-party amici curiae’, submitted in European Communities – Measures prohibiting the importation and marketing of seal products, WT/DS400 (2013).
71 European Communities – Measures prohibiting the importation and marketing of seal products, WT/DS40/AB/R (2014), para. 1.15.
72 See review of the objections to amicus submissions in Lim, C.L., ‘The amicus brief at the WTO’, (2005) 4 Chinese Journal of International Law 85, at 106CrossRefGoogle Scholar.
73 Humane Society International and American College of Law, ‘Written submission of non-party amici curiae’, submitted in US Tuna, supra note 68.
74 US Tuna, Report of the Panel, WT/DS381/R (2011), paras. 7.182, 7.288, 7.363, 7.368. In an earlier case, unsolicited amicus briefs were accepted, and even added to the case records, but never openly debated. See Australia – measures affecting importation of salmon – recourse to Article 21.5 by Canada, Report of the Panel, WT/DS18/RW (2000), supra note 66, paras. 7.8–7.9.
75 On the ‘public interest’ rationale, see De Brabandere, supra note 36, at 103.
76 Before the entering into force of the 2006 ICSID Arbitration Rules, the Suez Tribunal mentioned the public nature of the dispute (i.e., where cases are more than ‘simply a contract dispute’) as a relevant condition, see Suez, Sociedad General de Aguas de Barcelona S.A. and Vivendi Universal S.A v. Argentine Republic, Order in Response to a Petition for Transparency and Participation as Amicus Curiae, ICSID Case No. ARB/03/19 (2005), para. 20; Methanex Corporation v. The United States of America, NAFTA Chapter 11, Decision of the tribunal on petitions from third persons to intervene as ‘Amici Curiae’, para. 49; Biwater Gauff (Tanzania) Limited v. United Republic of Tanzania, Procedural Order No. 5 on amicus curiae, ICSID Case No. ARB/05/22 (2007), para. 51; Apotex Holdings Inc and ApotexInc v. The United States of America, Appleton intervention, ICSID Case No. ARB(AF)/12/1 (2013) [Apotex v. USA], para. 43.
77 See, for example, NAFTA Free Trade Commission, Art. 6(d), Statement of the Free Trade Commission on non-disputing party participation (2003), available at www.international.gc.ca/trade-agreements-accords-commerciaux/assets/pdfs/Nondisputing-en.pdf [FTC Statement]; UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration, Art. 1(4)(a) (effective date: April 2014), which instructs a tribunal to consider the ‘public interest’ when exercising discretion (as in the case of decisions on amici participation).
78 See generally Bernasconi-Osterwalder, N., ‘Transparency and Amicus Curiae in ICSID Arbitrations’, in Segger, M.C. Cordonier et al. (eds.), Sustainable Development in World Investment Law (2010), 191 Google Scholar.
79 See B. Appleton, ‘Petition for leave to submit non-disputing party (amicus curiae) submission of Barry Appleton’, submitted in Apotex v. USA, supra note 76.
80 Mr. Appleton's experience, according to his petition, includes serving as an advisor to sub-national governments during the negotiations of the NAFTA, extensive practice as a litigant in investment disputes, and authoring two books on the NAFTA.
81 Apotex v. USA, Procedural Order on the Participation of the Applicant, Mr. Barry Appleton, as a Non-Disputing Party, paras. 11, 30, and 34.
82 Ibid., para. 14, citing para. 18 of Mr. Appleton's submission.
83 Apotex v. USA, supra note 81, paras. 32 and 36.
84 The specific rule in question being section B(6)(a) of the NAFTA FTC Statement.
85 Apotex v. USA, supra note 81, para. 31.
86 Ibid., para. 32.
87 Ibid., para. 33.
88 Ibid., para. 40.
89 Ibid., para. 43.
90 Eureko B.V. v. Slovak Republic, PCA Case No. 2008-13, Award on Jurisdiction, Arbitrability and Suspension (2010), para. 154.
91 Ioan Micula, Viorel Micula and others v. Romania, Award, ICSID Case No. ARB/05/20 (2013) [Micula]; Electrabel S.A. v. The Republic of Hungary, Decision on Jurisdiction, Applicable Law and Liability, ICSID Case No. ARB/07/19 (2012).
92 Electrabel, supra note 91.
93 Ibid., para. 4.89.
94 Ibid., para. 4.91 (emphasis supplied).
95 Ibid., para. 4.92.
96 Van den Eynde, supra note 42, at 285.
97 See among other examples, an amicus brief submitted by M. Hamilton in collaboration with the International Commission of Jurists and ILGA Europe, in Milica Dordevic and others v. Serbia, 5591/10 (2014).
98 These include such organizations as the University of Toronto's Centre for Reproductive Rights, International Reproductive and Sexual Health Law Programme, the Yale Law School National Litigation Project, Columbia Law School Human Rights Clinic, and many others, all of which mention ‘advocacy’ as their declared objectives.
99 ‘Amicus curiae brief submitted by Professor Francoise Hampson and Professor Noam Lubell of the Human Rights Centre, University of Essex’, submitted in Hassan v. United Kingdom, App. No. 297950/09 (2014).
100 Hassan v. United Kingdom, supra note 99. The summary of the amicus submissions is at paras. 91–5. The Court seems to draw on the amici's assessment of the ICJ's approach towards the co-existence of international humanitarian law and human rights law in situations of armed conflict (cf. paras. 93 and 104).
101 J. Pasqualucci, The practice and procedure of the Inter-American Court of Human Rights (2nd edn., 2013), 72. For a list of amici appearing before the IACtHR, see F. Rivera Juaristi, ‘The Amicus Curiae in the Inter-American Court of Human Rights (1982-2013)’, available at papers.ssrn.com/sol3/papers.cfm?abstract_id=2488073.
102 Rules of Court, Art 41 (2009). Added by the Court during its LXXXII Ordinary Period of Sessions, in the session held on 29 January 2009.
103 Rules of Court, Art 2.3, (2009).
104 See, for example, an amicus brief submitted by 56 amici, including 24 legal scholars, NGOs, Legal clinics, and practitioners: Amnesty et al., ‘Amici Curiae brief in support of petitioners’, submitted in Campo Algodonero et al. v. Mexico, Case Nos. 12.496, 12.497, 12.498, available at www.law.georgetown.edu/rossrights/documents/2009-07-07AmicusBriefCampoAlgodonero.pdf.
105 See, for example, ibid.; see also Amicus brief submitted by Labor, Civil Rights and Immigrants’ Rights Organizations in the United States, in the matter of request for Advisory Opinion submitted by the Government of the United Mexican States, OC-18, February 2003, at 4, www.nelp.org/content/uploads/2015/03/Brief-to-interamerican-court.pdf. While the latter submission was presented in the name of 50 ‘Labor, Civil Rights and Immigrants’ Rights Organizations in the United States’, four of the seven listed authors are university academics.
106 Advisory Opinion OC-6/86, 9 May 1986.
107 C. Moyer, ‘The Role of Amicus Curiae in the Inter-American Court of Human Rights’, in La Corte-Interamericana de Derechos Humanos, Estudios y documentos, (1986), 103, 106.
108 See list of amici compiled by Juaristi, supra note 101.
109 See four scholars’ briefs submitted by E. Haba; H. Gullco et al.; A. Huerta Zepeda et al.; and R. Nieto Navia et al., in Case of Artavia Murillo et al. (“in vitro fertilization”) v. Costa Rica, Judgment of 28 November 2012 [Murillo].
110 Amicus brief submitted by Romano et al. in Murillo, supra note 109.
111 Amicus brief submitted by Romano et al. in Nadege Dorzema v. Dominican Republic, Judgment of 24 October 2012.
112 It is tempting to draw conclusions regarding the state of the scholar-adjudicator dialogue from the wall of silence that met our e-mails, but our experience is merely anecdotal.
113 C. Chinkin, ‘Amicus curiae brief on protective measures for victims and witnesses’, submitted in Prosecutor v. Duško Tadić, Case No. IT-94-1-T, 14 June 1995.
114 Prosecutor v. Duško Tadić, Decision on the Prosecutor's Motion Requesting Protective Measures for Victims and Witnesses, Case No. IT-94-1-T, T. Ch., para. 10.
115 Ibid., paras. 39, 46, 47, 56.
116 Prosecutor v. Tihomir Blaškić, Judgement on the request of the Republic of Croatia for review of the decision of trial chamber II of 18 July 1997, Case No. IT-95-14, A. Ch., 29 October 1997, para. 10.
117 Ibid.
119 Ibid., paras. 21, 29, 30, 43, 57.
120 Ibid., para. 8.
121 L. Blanc et al., ‘Application and Proposed Amicus Curiae Brief Concerning the 15 April 2011 Trial Chamber Judgment and Requesting that the Appeals Chamber Reconsider the Findings of Unlawful Artillery Attacks During Operation Storm’, submitted in Prosecutor v. Ante Gotovina & Mladen Markač, Case No. IT-06-90-A, 13 January 2012.
122 Ibid., para. 1.
123 Prosecutor v. Ante Gotovina & Mladen Markač, Decision on the application and proposed amicus curiae brief, Case No. IT-06-90-A, A. Ch., 14 February 2012, para. 11.
124 Ibid., para. 12.
125 Situation in the Republic of Kenya, Decision on Application to Appear as Amicus Curiae and Related Requests, ICC-01-09-14, PTC II, 3 February 2010, para. 2.
126 Ibid., para. 8.
127 Prosecutor v. Laurent Koudou Gbagbo, Decision on the ‘Request for Leave to Submit Amicus Curiae Observations pursuant to Rule 103 of the Rules of Procedure and Evidence’, ICC-02/11-01/11-516, A. Ch., 1 October 2013.
128 Ibid., para. 4.
129 Ibid., para. 10.
130 Prosecutor v. Laurent Koudou Gbagbo, Judgment on the appeal of the Prosecutor against the decision of Pre-Trial Chamber I of 3 June 2013 entitled ‘Decision adjourning the hearing on the confirmation of charges pursuant to article 61(7)(c)(i) of the Rome Statute’, ICC-02/11-01/11-572, A. Ch., 16 December 2013.
131 Ibid., para. 54.
132 Supra note 57.
133 Supra note 116.
134 Supra note 100.
135 Supra note 130.
136 Supra note 114.
137 Supra note 123.
138 Supra note 81.
139 ICJ/Reisman correspondence, supra note 41, at 638–9.
140 The ICTY's amicus officer does not extend to making decisions on the merits of amicus submissions. Applications are sent to the Trial Chamber for a decision on whether they should be admitted. See ICTY Publication (IT/122), ‘Information Concerning the Submission of Amicus Curiae Briefs’, (27 March 1997), para. 4.
