Civil Society, International Courts And Compliance Bodies

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

ISBN13: 9789067041867

ISBN10: 9067041866

Format: Hardcover

Pub. Date: 2005-01-10

Publisher(s): T.M.C. Asser Press

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Summary

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

Contributors and Editors

xiii

Abbreviations

Law Reports

xviii

Journals

xix

Introduction

(8)

Tullio Treves

Part I NGOs and Human Rights Courts and Compliance Bodies

(96)

International Courts and Compliance Bodies: The Experience of Amnesty International

(30)

Dean Zagorac

Introduction

(1)

Universal Level

(5)

Treaty-monitoring bodies

(3)

International Court of Justice

(1)

International criminal courts and tribunals

(1)

Regional Level

(20)

Council of Europe

(9)

Organization of American States

(6)

Organization of African Unity / African Union

(5)

Conclusion

(4)

The Experience of the AIRE Centre in Litigating before the European Court of Human Rights

(6)

Catharina Harby

Introduction

(1)

Resources

(1)

Taking Cases to Strasbourg

(1)

Costs of Litigating

(1)

Proposals to Reform the European Court of Human Rights

(2)

Conclusion

(1)

NGOs and the Inter-American Court of Human Rights

(10)

Monica Pinto

Introduction

(1)

Civil Society, NGOs and Human Rights

(2)

Human Rights NGOs and the Victims

(1)

NGOs' Legal Standing in the Petition and Judicial Contexts

(3)

NGOs and Standard Setting

(1)

NGOs and the Implementation of the System's Legal Resources

(1)

Some Preliminary Conclusions

(2)

NGOs before the European Court of Human Rights: Beyond Amicus Curiae Participation?

(10)

Marco Frigessi di Rattalma

NGOs' Amicus Curiae Participation before the European Court of Human Rights

(2)

The Lex Lata: NGOs Have No General Authority to Act on behalf of Alleged Victims

(1)

The Lege Ferenda: Would Granting an Actio Popularis to NGOs be Appropriate?

(3)

A Limited Locus Standi for NGOs

(4)

The Role of NGOs before the United Nations Human Rights Committee

(26)

Gianluca Rubagotti

Introduction: Mechanisms and Procedures before the United Nations Human Rights Committee

(1)

The System of Periodic Reports

(15)

Scope and function of the reporting obligation and sources of information

(11)

The actual influence of the work of NGOs in the reporting procedure

(4)

Inter-state Communications

(1)

Individual Communications

(6)

Scope and functions of individual communication

(1)

NGOs: inclusion or exclusion?

(2)

Possibilities pursuant to Rule of Procedure 90(b)

(1)

Friends of the court?

(2)

Conclusion

(3)

Some Concluding Remarks on NGOs and the European Court of Human Rights

(12)

Nina Vajic

Introduction

(3)

Role of Human Rights NGOs

(1)

Third Party Intervention (Direct Intervention)

(5)

Prospects for Possible Changes

102

(3)

Part II NGOs and International Criminal Courts and Tribunals

105

(42)

The Experience of No Peace Without Justice

107

(6)

Mariacarmen Colitti

NPWJ and the NGO Coalition for an ICC

107

(2)

NPWJ and Governments

109

(1)

Judicial Assistance Program

109

(1)

Awareness Raising

110

(1)

NPWJ and the ICTY: The Kosovo Mission

110

(1)

Conclusion

111

(2)

NGOs and the Activities of the Ad Hoc Criminal Tribunals for Former Yugoslavia and Rwanda

113

(8)

Patrizia De Cesari

Functions of Non-Governmental Organizations in the Activities of Ad Hoc Criminal Tribunals

113

(2)

Key Provisions of the Statutes and of the Rules of Procedure and Evidence

115

(1)

The Practice of the Tribunals

116

(2)

Conditions for the Participation of NGOs as Amici Curiae in Proceedings

118

(1)

The interests of NGOs

118

(1)

Authorization from the Tribunal

118

(1)

Form of participation

119

(1)

Need to Clarify the Involvement of NGOs as Amici Curiae before Ad Hoc Criminal Tribunals

119

(2)

NGOs and the Activities of the International Criminal Court

121

(8)

Francesca Trombetta-Panigadi

Explicit References to NGOs in the Statute and Subsidiary Documents

121

(2)

NGO Coalition for an ICC and the Recognition of its Role by the Assembly of States Parties and the Organs of the ICC

123

(2)

NGOs' Activities Today: The Policy of the Coalition

125

(3)

Concluding Remarks

128

(1)

NGOs and the East Timor Special Panels for Serious Crimes

129

(14)

Chiara Ragni

The Role of NGOs in Judicial System Reconstruction in East Timor

129

(1)

Historical Background

129

(2)

NGO Coalition for an International Tribunal for East Timor

131

(4)

NGOs and the Special Panels for Serious Crimes

135

(6)

Judicial System Monitoring Programme and its activities

137

(2)

Relationship between JSMP and public institutions

139

(2)

An Assessment of the Results Achieved by NGOs in the East Timor Context

141

(2)

Some Concluding Remarks on the Role of NGOs in the ICC

143

(4)

Mauro Politi

The Role of NGOs in the International Legislative Process

143

(1)

Action of NGOs in support of the ICC

144

(3)

Part III NGOs and International Environmental Disputes and Compliance Mechanisms

147

(78)

The Experience of Greenpeace International

149

(18)

Duncan E.J. Currie

Introduction

149

(1)

International Developments on Enforcement of MEAs

149

(7)

UNEP Guidelines

151

(1)

Reporting, monitoring and verification of compliance and capacity-building

151

(1)

Locus standi

152

(1)

Amicus curiae briefs

153

(1)

Consultation and cooperation

153

(3)

Some Examples of MEA Compliance Issues under Individual Instruments

156

(10)

CITES and illegal logging

156

(3)

`Scientific whaling'

159

(2)

Illegal, unregulated and unreported fishing

161

(3)

The IMO

164

(2)

Conclusion

166

(1)

NGOs and the Aarhus Convention

167

(20)

Jeremy Wates

Origin and Evolution of the Aarhus Convention

167

(2)

Content of the Aarhus Convention

169

(8)

General features

169

(2)

Access to information

171

(3)

Public participation

174

(1)

Access to justice

175

(2)

The Role of NGOs in the Aarhus Convention

177

(4)

The negotiating phase

177

(2)

The implementation phase

179

(2)

The Compliance Mechanism

181

(6)

The structure and function of the Aarhus Convention compliance mechanism

181

(1)

NGO participation in the mechanism

182

(2)

Relevance of the Aarhus Convention model

184

(3)

The World Bank Inspection Panel: About Public Participation and Dispute Settlement

187

(18)

Laurence Boisson de Chazournes

Introduction: Evolution of the Inspection Panel's Mandate

187

(2)

Public Participation and the International Decision-making Process: The Path Opened by the World Bank Inspection Panel

189

(6)

The Bank's operational policies and the promotion of the principle of public participation

190

(2)

The concepts of public participation, transparency and accountability at the heart of the Inspection Panel procedure

192

(3)

The Inspection Panel: A Sui Generis Settlement Procedure

195

(7)

Seizing the World Bank Inspection Panel

196

(2)

Course of the procedure

198

(1)

Specific features of the Inspection Panel procedure and subsequent practice

199

(3)

Conclusions: Of the Endogenous and Innovating Nature of the Inspection Panel Procedure

202

(3)

NGOs in Non-Compliance Mechanisms under Multilateral Environmental Agreements: From Tolerance to Recognition?

205

(20)

Cesare Pitea

Reviewing Compliance and the Role of NGOs: Introduction

205

(3)

NGO Participation in Compliance or Implementation Committees

208

(4)

Existing practice

208

(3)

Evaluation

211

(1)

Trigger Mechanism: Hidden Action or Legal Right?

212

(5)

Existing practice

212

(3)

Evaluation

215

(2)

NGOs in Fact-Finding and Assessment Phases

217

(4)

Existing practice

217

(3)

Evaluation

220

(1)

Overcoming States' Resistance: A Prospect for the Future?

221

(1)

Annex: List of Relevant Instruments and Documents

222

(3)

Part IV NGOs and Inter-State and European Disputes

225

(68)

Non-Governmental Organizations and the International Court of Justice

227

(6)

Eduardo Valencia-Ospina

The Statute and Rules: No Role for NGOs

227

(1)

An Indirect Role

228

(2)

The Practice of the ICJ

230

(3)

NGOs and Law of the Sea Disputes

233

(10)

Philippe Gautier

Introduction

233

(2)

Non-state Entities, UNCLOS and the Rules of the Tribunal

235

(2)

Non-state Entities as Parties or Intervening Parties

237

(1)

Participation of Non-state Entities in Proceedings before ITLOS

238

(2)

Practice of ITLOS

240

(2)

Conclusion

242

(1)

CIEL's Experience in WTO Dispute Settlement: Challenges and Complexities from a Practical Point of View

243

(18)

Lise Johnson

Elisabeth Tuerk

Introduction

243

(1)

Experiences

244

(5)

United States -- Import Prohibition of Certain Shrimp and Shrimp Products

244

(1)

European Communities -- Measures affecting Asbestos and Asbestos-Containing Products

245

(2)

European Communities -- Measures affecting the Approval and Marketing of Biotech Products

247

(2)

Political Scenario

249

(5)

Potential roles for amicus curiae briefs

249

(2)

Limits on amicus curiae briefs' potential roles

251

(3)

Mechanics of Submitting an Amicus Curiae Brief

254

(2)

Amicus Curiae Briefs in the Political Reality of Different WTO Members

256

(3)

Conclusion

259

(2)

NGOs and the WTO Dispute Settlement Mechanism

261

(10)

Marcella Distefano

Introductory Remarks

261

(1)

Case Law

262

(5)

Review of the Dispute Settlement Understanding

267

(2)

Future Developments

269

(2)

The Accessibility of European Integration Courts from an NGO Perspective

271

(22)

Jessica Maria Almqvist

Introduction

271

(1)

Role of the European Integration Courts

271

(3)

Civil Society and NGOs

274

(2)

Avenues for Participation in the European Judicial Process

276

(12)

Amicus curiae briefs

276

(1)

Third party interventions

277

(3)

Locus standi

280

(8)

Partial Exclusion: The Case of Public Interest NGOs

288

(2)

Conclusion

290

(3)

Part V Concluding Remarks

293

(20)

The Amicus Curiae in International Courts: Towards Common Procedural Approaches?

295

(18)

Ruth Mackenzie

Introduction

295

(1)

Basic Procedural Approaches to Amicus Curiae Briefs

296

(2)

Objections to Amicus Curiae Submissions

298

(3)

Added value of Amicus Curiae Submissions

299

(1)

Additional burden imposed by amicus curiae submissions

299

(1)

Identity of the potential amicus curiae

300

(1)

Confidentiality and transparency issues

301

(1)

Can Procedural Approaches Meet Concerns about Amicus Curiae Intervention?

301

(8)

Filtering mechanisms: procedures for applications for leave to file an amicus curiae brief

302

(2)

Procedural rules to clarify the role of the amicus curiae brief

304

(1)

Identity of the amicus curiae: disclosure of interests and affiliations

305

(1)

Other procedural rules to manage any additional burden on the court and on the parties

306

(2)

Right to respond

308

(1)

Addressing issues of confidentiality and transparency

309

(1)

Conclusion

309

(4)

Index

313

Civil Society, International Courts And Compliance Bodies

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