IUCN's Amicus Curiae Submission in the Climate Change Advisory Opinion: Wind of Changing Practice at the ICJ?

Abstract

Globally, there has been a phenomenal rise in the number of non-governmental organizations (NGOs). Apparently, there is an increasingly relaxed approach to receiving amicus curiae briefs from non-state actors, particularly non-governmental organizations. The International Court of Justice (ICJ) has remained quite restrictive, balking against the general trend. It is not only that the Statute of the ICJ bars non-governmental organizations from invoking contentious and advisory jurisdiction of the Court, but the Court, through its Rules, has virtually shut the door for them to submit amicus curiae briefs. In light of the recent submission by the International Commission for Conservation of Nature (IUCN), by analyzing the various legal and policy issues, this article suggests that the Rules of the Court should be amended to allow amicus curiae briefs by NGOs. It finds that such an amendment does not require any changes in the Statute and is well within the powers of the ICJ.

I. Introduction

On March 29, 2023, the United Nations General Assembly adopted resolution 77/276 entitled “Request for an advisory opinion of the International Court of Justice on the obligations of States in respect of climate change” and decided to seek an advisory opinion from the International Court of Justice. In particular, the UNGA asks the ICJ to answer the following questions:

1. What are the obligations of States under international law to ensure the protection of the climate system and other parts of the environment from anthropogenic emissions of greenhouse gases for States and for present and future generations?
2. What are the legal consequences under these obligations for States where they, by their acts and omissions, have caused significant harm to the climate system and other parts of the environment, with respect to:
   1. States, including, in particular, small island developing States, which due to their geographical circumstances and level of development, are injured or specially affected by or are particularly vulnerable to the adverse effects of climate change?
   2. Peoples and individuals of the present and future generations affected by the adverse effects of climate change?

The ICJ accepted the application of the International Union for Conservation of Nature (IUCN) to participate in the advisory proceedings. IUCN is not the only body to have approached the ICJ to participate in the proceedings. There are other actors such as the African Union; European Union (EU); the Commission of Small Island States on Climate Change and International Law; the Alliance of Small Island States; the Organization of the Petroleum Exporting Countries; the Organisation of African, Caribbean and Pacific States the Melanesian Spearhead Group; the Forum Fisheries Agency; the Pacific Island Forum (PIF); the Pacific Community and Parties to the Nauru Agreement; and the World Health Organization have also approached the ICJ to take part in the proceedings. But unlike the others, the IUCN, in this case, is the only party that is neither a state nor a fully intergovernmental international organization. IUCN has submitted a written statement pursuant to Article 66(2) of the Statute of the Court (as stated in the Press Release of 14 June), placing IUCN in a unique position. This could arguably be an exemplary decision of the ICJ in terms of amicus curiae submissions by NGOs and perhaps welcome further climate related disputes before the Court to enforce climate justice.

Unlike international organizations, which are created by states (generally through treaties) under international law, NGOs are created by the action of individuals and set up under national laws. The membership of NGOs can be diverse—it may consist of private individuals, individuals who are public officials, or a group protecting the interest of businesses. Globally, there has been a phenomenal rise in the number of NGOs. India, alone is believed to have more than one million NGOs. They are also playing different roles on the international plane. Some private NGOs such as the International Olympic Committee, the Global Fund to Fight Aids, Tuberculosis and Malaria, International Air Transport Agency, etc., behave almost like intergovernmental organizations. The key role played by the International Committee of Red Cross in the development and crystallization of the International Committee of the Red Cross is well-known. Surmounting the opposition of major powers such as the USA, Russia and China; it was the NGOs who successfully pushed forward the Landmine Ban Treaty. In the environmental arena, NGOs helped inter alia, drafting the treaty of the 1979 Convention on the Conservation of Migratory Species of Wild Animals. Even for drafting major conventions like the U.N Convention on the Rights of the Child, NGOs have played a vital role in shaping obligatory international laws. This article will deal with IUCN’s role as an amicus curiae in the case before the ICJ. It argues that the ICJ’s rules on the amicus curiae brief restricting submissions by NGOs are not in sync with the contemporary world and should be modified.

This article only deals with amicus curiae briefs before the ICJ, such briefs before national courts or other international courts are beyond its scope. While various interest groups, legal academe, and politically engaged lawyers may submit amici briefs, the focus of this article is on the amicus curiae briefs by NGOs. The next section of the paper discusses the legal status of the IUCN and its activities. Then, Section III analyzes the meaning and role of the amicus curiae. Section IV discusses the law and practice of the ICJ regarding amicus curiae submissions in contentious proceedings. Section V analyzes the law and practice of the ICJ regarding amicus curiae briefs in advisory opinion proceedings. Section VI discusses the benefits of amicus curiae briefs (particularly by NGOs). Section VII discusses the concerns with such amicus curiae briefs. Section VIII surmises the role of the IUCN in the case at hand and its potential impact. Section IX analyzes the concerns that are often raised about NGOs having greater access to the Court. Section X analyzes the reasons why NGOs should be given greater access to the Court and the means to do it. Section XI concludes the article.

II. The Legal Status of IUCN and Its Activities

The IUCN was created in 1948. The French government played a major role in its creation, and it is a rare hybrid NGO that is made up of national and international conservation groups, as well as states and other public law entities such as universities and research institutes. Thus, it is not necessarily an international intergovernmental organization solely consisting of states as its members. One of the most efficacious ways of deciphering IUCN is understanding its vision and goals. The International Union for Conservation of Nature is one of the leading international organizations devoted to working on climate change, biodiversity loss and pollution. It has become the most widely recognized platform for keeping watch of nature and protecting it (be it through publishing the IUCN Red List of Threatened Species for locating and protecting endangered species or by being the official advisory body on nature under the World Heritage Convention and proposing solutions that influence national and global policy). “IUCN congresses have produced several key international environmental agreements including the Convention on Biological Diversity (CBD), the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), the World Heritage Convention, and the Ramsar Convention on Wetlands.” As an official United Nations Observer and a one-of-a-kind membership union, IUCN influences, encourages, and assists societies to conserve nature and ensure proper distribution of natural resources.

Unlike other international organizations that solely comprise of States as Members, the membership system of IUCN sets it apart from the traditional definition. It was created with respect to Article 60 of the Swiss Civil Code, as an international association of governmental and non-governmental members. As stated in Article 4 of the IUCN Statutes (including Rules of Procedure of the World Conservation Congress, and Regulations); “it is a network of different kinds of contributors of policy-making and implementation, divided categorically into 4 parts: Category A consisting of States, government agencies and subnational governments; and political and/or economic integration organizations; Category B consisting of national & international non-governmental organizations; Category C of Indigenous peoples’ organizations; and finally, Category D consists of affiliates (government agencies, national and international non-governmental organizations, which are not in Categories A, B, or C.).”

Over 1,400 Member organizations make up the democratic union. Fourteen percent of IUCN’s Membership consists of State and government agency members—given that the States are Members of the United Nations or any of its Specialized Agencies, or of the International Atomic Energy Agency, or parties to the Statute of the International Court of Justice. “IUCN provides these Members with valuable international data and analysis that can help better formulate, target and legitimise policy decisions in the environmental arena and beyond.” International and national non-governmental organisations make up the largest percentage of membership at the IUCN. Later, in 2016, institutions and associations established by Indigenous peoples for the advancement of their communities or the Indigenous Peoples’ Organisations joined, and since 2021, local governments have taken part in the IUCN congresses too and made up the membership to provide their inputs, upholding inclusivity. Approximately 16,000+ volunteer scientists and other experts are working for the international union across 160+ countries, while the staff members are that of 1,000+ in fifty countries. The experts make up seven specialized commissions for performing different tasks of undertaking research and other technical work for their greater enforceability and make up the IUCN body: Commission on Education and Communication; Commission on Environmental, Economic and Social Policy; World Commission on Environmental Law; Climate Crisis Commission; Commission on Ecosystem Management; Species Survival Commission; and World Commission on Protected Areas. The World Commission on Environmental Law (WCEL) and the Environmental Law Centre (ELC) make up the IUCN Environmental Law Programme (ELP), which works in tandem with the IUCN Academy of Environmental Law. The ELP is an ‘integrated program of activities that assists decision makers with information, legal analysis, advisory services, legislative drafting, mentoring, and capacity building at national, regional, and global levels’; WCEL is a global network of environmental law and policy experts who provide their expertise to IUCN programs, particularly those of the ELP; and the ELC serves as the Secretariat for the WCEL and collaborates with the entire IUCN as well as numerous other partners from around the world.

Apart from governance, IUCN has also assisted courts and taken part in their litigation processes in the form of an amicus curiae as a means to safeguard nature. In the first IUCN World Environmental Law Congress: Environmental Rule of Law, Justice and Planetary Sustainability in 2016, the Global Judicial Institute for the Environment was formed as the platform for the international convergence of judges and environmental law, marking a tremendous success for the WCEL. It began its mission to support the role of international courts and tribunals trying to enforce climate justice worldwide by applying and enforcing environmental laws, promoting the environmental rule of law and trying to ensure the fair distribution of environmental benefits and burdens. IUCN has maintained an exchange and knowledge-sharing among judges by facilitating cooperation and linkages among judges with the agents or stakeholders involved in environmental compliance and enforcement:

The institute is composed of sitting judges from around the world and is led by an elected council directing and overseeing activities. As an initiative directed by judges, the GJIE is a forum for convening judges on environmental issues and will provide opportunities for information exchange, collaboration, strengthening capacity, and providing research and analysis for environmental adjudication, court practices, and the environmental rule of law.

It has often submitted written statements in the International Tribunal for the Law of the Sea (ITLOS) as an amicus curiae pursuant to Article 138, paragraph 3 and Article 133, paragraph 3 of the Rules of the Tribunal; most recently, in Case No. 31 “Request for an Advisory Opinion submitted by the Commission of Small Island States on Climate Change and International Law (Request for Advisory Opinion submitted to the Tribunal)” on June 13, 2023. Prior to that, on the Advisory Opinion on “Responsibility and Liability for International Seabed Mining” (ITLOS Case No. 17), the Court had requested an amicus brief from the IUCN, and deliberated on its admissibility.

III. Who Are Amicus Curiae?

The term amicus curiae is defined as “[a] person who is not a party to a lawsuit but who petitions the court or is requested by the court to file a brief in the action because that person has a strong interest in the subject matter.” The term has been used for centuries, but precise origin of the term is not undisputed. Some scholars think that it originated in ancient Roman Law. Abbott’s Dictionary of Terms and Phrases has explained that it is a “term applied to a bystander, who without having an interest in the cause, of his own knowledge makes suggestion on a point of law or of fact for the information of the presiding judge.” According to Holthouse’s Law Dictionary, “[w]hen a judge is doubtful or mistaken in matter of law, a bystander may inform the court thereof as amicus curiae. Counsel in court frequently act in this capacity when they happen to be in possession of a case which the judge has not seen or does not at the moment remember.” At least in theory, if not in practice, the objective of an amicus curiae brief “is to inform the court as to facts or situations which may have escaped consideration or to remind the court of legal matters which have escaped its notice and regarding which it appears to be in danger of making a wrong interpretation.”

In international law, there does not appear to be an agreed upon definition of amicus curiae. An International Centre for Settlement of Investment Disputes (ICSID) tribunal has observed that:

An amicus curiae is, as the Latin words indicate, a “friend of the court,” and is not a party to the proceeding. Its role in other fora and systems has traditionally been that of a nonparty, and the Tribunal believes that an amicus curiae in an ICSID proceeding would also be that of a nonparty. The traditional role of an amicus curiae in an adversary proceeding is to help the decision maker arrive at its decision by providing the decision maker with arguments, perspectives, and expertise that the litigating parties may not provide. In short, a request to act as amicus curiae is an offer of assistance – an offer that the decision maker is free to accept or reject. An amicus curiae is a volunteer, a friend of the court, not a party.

Another ICSID tribunal has described amicus curiae as recognized in certain legal systems and, more recently, in a number of international proceedings. In such cases, a nonparty to the dispute, as “a friend, offers to provide the court or tribunal its special perspectives, arguments, or expertise on the dispute, usually in the form of a written amicus curiae brief or submission.”

An amicus brief may serve as a signal to the court that the case at hand may impinge on rights and interests broader than those of the litigating parties. Generally, amicus briefs are a feature in appellate courts or in proceedings where arguments and paper-based evidence dominate the proceedings. It is not just lawyers, but also government officials, law professors, law clinics, high school students, business units, employers and labor force, groups in industry and economic occupations, political parties, etc., who may submit amici briefs. In some cases, lawyers who are in the leading position of the Bar, may devote their time sua sponte as a voluntary service to the indigent sections. But in some cases, there can be the motive of gaining prominence through participation as amicus curiae. Whatever the motive may be, it is clear that amicus curiae briefs are on the rise, and some argue that this is attributable to the increasing involvement of courts in the terrain such as religious freedoms, equal rights, migration, and the environment which were hitherto not within the domain of courts, in both municipal and international legal systems.

Amicus curiae needs to be distinguished from third parties or intervening parties who have some direct interest in the subject matter of the dispute and may intervene in the case as the judgment may affect that interest. In other words, an intervening party would need to be able to establish that it has something to lose or gain from the court proceedings. Thus, the amicus not being directly involved in the case may provide perspectives that the disputing parties may not be capable of or interested in presenting before a court. Alluding to the objective nature of the amicus curiae, the ICJ in Tunisia v. Libya has observed that Malta sought to participate “as a closely interested participant in the proceedings intent upon seeing those issues resolved in the manner most favourable to Malta,” and “not objectively as a kind of amicus curiae.” While many amicus curiae briefs may be submitted propiro motu, a court or tribunal may also seek amici briefs.

But the traditional role of amicus from a more objective (at least ostensibly) and disinterested position to a more assertive and somewhat interested position is generally evident not just in the contemporary world but was sometimes evident in the last century. However, in a normative subject like law, a dispute being litigated at the court could perhaps hardly be ever fully value-free or neutral. Having said all this, ideally, the interest and outlook of the amicus curiae in a case should be broader than the parties. Perhaps in the contemporary era, the best description of the role of the amicus curiae is “to act directly and officially as counsel for one not formally a party to the case.” Challenging the notion that amicus curiae briefs are often less important, a work claims that indeed they are “very important; [it is wrong to assume] that they are at best only icing on the cake . . . [i]n reality, they are often the cake itself. Amicus briefs have shaped judicial decisions in many more cases than is commonly realized.”

IV. Law and Practice of the ICJ on Amicus Curiae Brief in Contentious Proceedings

The Court’s rules on contentious and advisory proceedings are not identical. Article 34(2) of the Statute of the ICJ states that “[t]he Court, subject to and in conformity with its Rules, may request of public international organizations information relevant to cases before it, and shall receive such information presented by such organizations on their own initiative.” Article 34(3) further provides that when “the construction of the constituent instrument of a public international organization or of an international convention adopted there-under is in question in a case before the Court, the Registrar shall so notify the public international organization concerned and shall communicate to it copies of all the written proceedings.” Arguably, the word “information” would imply factual information only, not legal arguments, and thus any amicus curiae briefs, but the ICJ practice does not lend credence to this narrow interpretation. The use of Article 34(2) by the ICJ to seek information from international organizations, has been few and far between, for example, the Court invited the International Civil Aviation Organization (ICAO) to furnish factual information about ICAO Council proceedings following the aerial incident.

Rule 69 (4) of the Court provides that “the term ‘public international organization’ denotes an international organization of States”, thus, the text clearly excludes submissions by NGOs. In the Asylum Case, resorting to Article 34, the International League for the Rights of the Man applied for leave of the Court to participate in the proceedings. The court did not grant the leave. In his letter, the Registrar of the Court clarified that the International League of Rights of Man could not be characterized as a public international organisation as envisaged by the Statute required for contentious proceedings. But in the Gabcikovo-Nagymaros case, the court seems to have acknowledged that it received an amicus curiae brief from NGOs.

Arguably, Article 50 of the ICJ Statute may also be a point of reference regarding the acceptance of amicus curiae brief by the Court. This is because it appears to give the ICJ a blanket power to seek inputs from virtually anyone by stating that “[t]he Court may, at any time, entrust any individual, body, bureau, commission, or other organization that it may select, with the task of carrying out an enquiry or giving an expert opinion.” Rule 67 of the ICJ Rules provides the procedural details for this Article 50. Rule 67(1) states that when the Court considers it necessary to arrange for an inquiry or an expert opinion, it shall, upon consulting the parties, “issue an order to this effect, defining the subject of the enquiry or expert opinion, stating the number and mode of appointment of the persons to hold the enquiry or of the experts, and laying down the procedure to be followed.” It further provides that the Court may require persons appointed to conduct an enquiry, or to give an expert opinion, to make a solemn declaration. Under Rule 67(2), every report or record of an inquiry and every expert opinion will be communicated to the parties, and they would be afforded the opportunity of commenting upon it. But this avenue has so far remained unexplored. And it is important to note that this is a power conferred on the Court to seek inputs, not a power given to third parties to submit inputs to the Court.

V. Law and Practice of the ICJ on Amicus Curiae Brief in Advisory Proceedings

Unlike clear limits on amicus curiae briefs from NGOs in contentious proceedings, there is no explicit stipulation regarding advisory opinions. But the ICJ views its advisory function as a judicial function and has generally followed mostly similar practices. Despite this, the ICJ has rarely received amicus curiae briefs from NGOs. In the advisory opinion of South-West Africa however, on March 16, 1950, with respect to Article 66(2) of the ICJ Statute, the Registrar agreed to Robert Delson, a board member of the League, seeking permission to participate in the oral or written statement in the proceedings, after the President of the Court had set the deadline of March 20, 1950 for the reception of written statements from the participating parties. The President had further advised to be limited to the legal questions of this advisory opinion only (not that of the asylum or any other such matter) and file it before April 10, 1950. The NGO submitted that “it would further the purposes of the Court and the extensions and preservation of human rights if the Court authorized it to furnish a written or oral statement.” According to the ICJ pleadings, the League was notified accordingly, but it did not send any brief within the time limit prescribed. It is said that the League sent in its official filing more than a month after the time set by the Court, and included statements from several people. The statement was received too late to be considered in the proceedings—the Court retorted. This could also be debated that the Court did not subsequently extend the deadline for non-governmental organizations to submit information. They were not allowed to hence participate in the oral proceedings either.

Later, in the 1970–1971 advisory proceedings, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-West Africa) notwithstanding Security Council resolution 276, the League again requested permission to participate but was subsequently refused. In the same proceedings, the ICJ rejected the application to furnish a statement made by the American Committee on Africa, another NGO affiliated with the League. As the Court did not assign any specific reason for the refusal, the exact reason for the refusal is open to interpretation. In a similar pattern, in the U.N. Administrative Tribunal case, the Court did not permit the Federation of International Civil Servants’ Association to submit its view, either orally or written, as this was not an “international organization.” But subsequent to these proceedings, the Court’s Rules were amended in 1978, and that might imply that the Court’s reason was regarding the status of these bodies as non-intergovernmental organizations.

On July 30, 2004, the ICJ adopted Practice Direction XII, stating that any written statement or document submitted by an international non-governmental organization in advisory proceedings will “not be considered as part of the case file,” however, that may “be referred to by States and intergovernmental organizations presenting written and oral statements”, and “will be placed in a designated location in the Peace Palace.” All states and intergovernmental organizations that will present written or oral statements before the Court would be informed of the location where submissions by international NGOs could be consulted. In other words, these documents are not part of the official records to be used by the Court, but may be used by states and intergovernmental organizations in the course of their pleadings. As the practice direction only refers to “international non-governmental organization”, apparently, it excludes national non-governmental organizations. But the Court’s practice would imply that it targeted all organizations which are not “inter-governmental” i.e., both international NGOs and national NGOs would fall in this category. But if the states or any inter-governmental organizations make use of these NGO briefs, then it is likely that they will be considered by the ICJ.

Post-Direction XII, in the Nuclear Weapons Advisory Opinion, an NGO submitted an amicus curiae brief, but that was only placed in the Court’s library, not made a part of its record. Thus, in essence, the reliance or non-reliance on those submissions would be left to the choice of the states or inter-governmental organizations that make formal submissions to the Court. Thus, they may assist a court by conveying information to the Court so as to enable it to render a more informed decision of high quality. But in the Wall case, though Palestine was not a state or intergovernmental organization, it was allowed to present arguments before the Court. The Court explained its participation in the following words:

[I]n the light of resolution ES-10114 and the report of the Secretary-General transmitted with the request and taking into account the fact that the General Assembly had granted Palestine a special status of observer and that the latter was co-sponsor of the draft resolution requesting the advisory opinion, Palestine might also submit a written statement on the question.

In the Kosovo case too, the ICJ accepted that nonstate actors directly concerned could present written statements before the Court. Intergovernmental organizations not only may submit written briefs, but also can make oral statements in advisory proceedings before the ICJ. It’s not surprising that selected international organizations seek the Court’s authoritative opinion on legal questions in advisory proceedings; an authoritative judicial pronouncement can shape public opinion. Indeed, there is already evidence that NGOs can use public international law to shape public opinion.

Interestingly, the ICJ’s approach is much more restrained than that of the Permanent Court of International Justice. The PCIJ took a broad view of the meaning of the term “international organizations” to include NGOs. In a 1922 case that involved determining the competence of the International Labour Organization (ILO) in international regulation of the conditions of persons employed in agriculture. Upon request of the Council of the League of Nations, posing the question—”[w]as the Workers’ Delegate for the Netherlands at the Third Session of the International Labour Conference nominated in accordance with the [Treaty of Versailles]?”, both organizations representing employers and workers participated in PCIJ proceedings. In particular, international trade unions submitted their briefs to the Court in advisory proceedings before the PCIJ.

VI. The Benefits of Amicus Curiae by NGOs

One obvious benefit of an amicus curiae brief is that it does not necessitate the full involvement of financial and other resources that would generally be required for filing a case as a party. Litigation can be a costly affair. Thus, for less affluent sections of the community, a public interest-oriented NGO may serve as an alternative avenue for their interest to be heard before a court. Of course in some fora they may do so as a party as well, but the cost would be higher. As they are not parties before the court, they are not bound by the res judicata; provided that they can meet the jurisdictional threshold, they could bring a subsequent case on their own. They are also not experts or witnesses who would be limited to answering questions by the parties or the court. And unlike experts, their submissions need not be put to examination. In many scientific or highly technical matters, amicus briefs can be helpful no matter how vast the legal knowledge of the bench. As Judge Stephen Breyer explains, “briefs play an important role in educating the judges on potentially relevant technical matters, helping to make us, not experts, but moderately educated lay persons, and that education helps to improve the quality of our decisions.” Of course, experts appointed by the parties may play a role, but being nominated by the parties may make their impartiality more susceptible to challenges.

Sometimes the parties to a case may have a more parochial and limited interest in resolving a dispute and the way they may seek to resolve a dispute may not necessarily be in the best interest of the wider society. To take a hypothetical scenario, in an investment dispute, an investor may be interested in obtaining a remedy from the host state, and the government may be interested in settling the claim of the investor but not necessarily some sections of the community who may be affected by the investment project in its entirety. This is where a truly public-minded NGO’s amicus curiae participation may give voice to the otherwise voiceless. Historically, scholarly works have demonstrated that amici submissions from the National Association for the Advancement of the Colored People played a role in highlighting the negative role played by segregation. For example, the amicus curiae brief by Louis Brandeis, submitted to the U.S. Supreme Court regarding an Oregon law limiting the number of hours women could work in a laundry presented empirical evidence demonstrating the impact of long work hours on women’s health. His brief, instead of relying on legal theory or precedent, took an empirical and sociological approach to advancing arguments and served as a model for endangering social reform through law.

Due to their unique position in a dispute, amici curiae are well-positioned to convey information or bring fresh perspectives to the court which might otherwise be missing. The goal of amici curiae is to “introduce public interest considerations into the decision—and, indirectly, to impact the development of international law.” Thus, they are positioned to inform a court of the broader implications of the case at hand beyond the immediate interests of the parties to the case. And through them, the interests of unrepresented or under-represented groups may reach the court. In some areas of international law, such as in the case of international investment law, some amicus curiae briefs have already provided some sort of countervailing strength to the voice of those who are voiceless. This arguably gives greater democratic legitimacy to international courts and tribunals. Some NGOs may retain technical expertise that many states may not possess. Thus, unless the amici curiae get beholden to narrow interest groups, their inputs may play a role in enhancing the overall breadth and quality of a decision of the court. The Court’s decision to allow amicus curiae participation reflects a policy choice. Such choices help shape the domain of international law.

VII. The Concerns with Amicus Curiae Briefs by NGOs

Of course, as they are not parties before the Court, any judgment rendered would not entitle an amicus to any benefit or any cost. Unlike the parties, they would not retain the right to offer any evidence or examine or cross-examine the witnesses. Too many or too tedious briefs from the amicus curiae may delay the proceedings before the Court. The parties to a proceeding are free to strike, reject, withdraw a petition, or settle the case, but none of this is possible by an amicus curiae.

Another risk is that either of the parties before the Court or other vested quarters may, through direct financing or subsidizing part of the cost of an amicus brief, push their agenda. Arguably, this type of concern may be more pronounced regarding NGOs with a narrow funding base than an international NGO with a broader funding base. Some argue that, at the least, the amici briefs may be duplicitous and thus unhelpful, as Judge Posner writes, “[t]he vast majority of amicus curiae briefs are filed by allies of litigants and duplicate the arguments made in the litigants’ briefs, in effect merely extending the length of the litigant’s brief.” There are concerns that amicus curiae briefs are susceptible to being ignored because they are not part of the official documents. Unless parties meticulously go through the previous documents (which have not occurred in the series of recent advisory opinions) and include them in their submissions, they will go unnoticed. Hence, it may be believed that NGOs stand a better chance at “truly” having their views presented via states because ICJ has not expressly accepted the submissions in its rules.

There is a risk that an amicus brief may deploy scientifically unsound research methods or technical terminologies that are “too scientific”, and the court may not be able to examine or corroborate such information but still rely on it; this could undermine the credibility of amicus curiae participation entirely. Expert information from an independent organization may not hold the similar weight as that from a state party or its officials in terms of its “importance” or legitimacy. Some argue that amicus curiae briefs may mean politicizing courts and making courts for the venue of promoting political interests and the risk of the court being portrayed as too political.

VIII. The Role of IUCN in the Current Case and Its Potential Impact

To what extent the amicus curiae brief impacts the decision making by the Judges is an intriguing question. While the mere absence of any reference may not indicate that they were not considered by the court, the reference by a court to the amicus submission is also not a definitive indicator that the submission has, in fact, influenced the decision of the court. At a bare minimum, the citation to amicus briefs should be treated as evidence of the fact that the court has considered them, even if not persuaded by them. That being said, at a minimum, it is perhaps axiomatic that an amicus submission gives the body submitting it a chance to directly present its views before the court, which it could not otherwise have. And despite the skepticism about some NGOs in some cases, due to the self-interested and parochial activity of most states, perhaps NGOs or a public-private association like IUCN is better suited to vigorously defend the public interest in a case regarding the protection of the global environment. Anecdotal evidence seems to imply that when an amicus brief submits information which counters the factual incompleteness or inaccuracy of information submitted by the disputing parties, an international court or tribunal may rely on the amicus brief.

The questions posed to the ICJ in current cases are clearly broad, so much so that some may suggest that the ICJ, in this case, has been not only asked to answer legal questions but, in a way, to create norms. This appears to be in line with a pattern mentioned in the extra-curial writing of a former ICJ Judge that “[i]t has however been a feature of the use of the advisory jurisdiction hitherto that the questions asked of the Court tend to be laconic yet often somewhat abstract and therefore broad in scope.” Again, the Court in Western Sahara has observed that the phrase any legal question “are not to be interpreted restrictively.” It is important to note here that the Court would interpret the law, not create it, as the Court has explained in the Fisheries Jurisdiction that it “as a court of law, cannot render judgment sub specie legis ferendae, or anticipate the law before the legislator has laid it down.” As one scholarly work puts, it “can be viewed as an ‘in-kind’ donation of information to courts.” If the IUCN can provide “policy considerations, social-science data, and economic data that might otherwise not be brought to the attention” of the ICJ, then its contribution could be particularly valuable. The Chair of the IUCN World Commission on Environmental Law, Professor Christina Voigt, presented IUCN’s written submission to the Registrar of the Court on March 19, 2024. IUCN has the ability to provide the Court with written comments on other parties’ submissions and to present its views during the oral proceedings, expected to have taken place in December 2024.

Indeed, in developing international environmental law (though through a soft law), it was the IUCN who played a pivotal role. And arguably, its expertise on environmental legal matters may be more than many states or international organisations. Thus, it is one of those cases where due to its expertise, it may be more suited to make a greater meaningful contribution than states or intergovernmental organisations. As it is already pointed out, IUCN’s brief will form part of the Court’s official record, not like the submission by purely private NGOs. It may be mentioned that IUCN had also participated in advisory proceedings before the International Tribunal for the Law of the Sea (as mentioned previously) and the Inter-American Court of Human Rights. Amici curiae are also mostly applicable when erga omnes obligations are at question. If we look into the Intergovernmental Panel on Climate Change’s 2001 Scientific Report, for years, it has been a setting stone proved by the scientific community sans arguments that humankind’s industrial activities are causing global warming. Environmental conservation is an essential state interest under Article 64 of the Vienna Convention on the Law of Treaties (emerging jus cogens). As a result, environmental protection emerges as an emerging norm and a clear customary international law principle (particularly the principle of prevention), as evidenced by a wide range of state practices and opinio juris acts such as the Rio Declaration and the Paris Agreement. The importance given to environmental considerations is also reflected in the status of the no harm principle and ‘essential interest’ as a common concern of mankind that the ICJ has further granted protection of in the Pulp Mills and emphasized the great significance it attaches to respect the environment—for the whole of mankind in the Nuclear Weapons case. If “the goal [of amici curiae] is to ‘introduce public interest considerations,’” the ‘friends of court’ could also contribute to upholding rules aimed at protecting fundamental values of the international community, such as erga omnes obligations, although practice tells a different story. The case at hand could mark a new beginning.

The submission of the IUCN to the ICJ in the case at hand, is not yet available to the public. But certain points may be made based on the amicus brief as submitted to the ITLOS as a proxy. In that brief, the IUCN made elaborate submissions on the various scientific evidence of the damaging effect of climate change on the marine environment. It also submitted detailed and erudite expositions of the relevant international legal obligations of the states who are parties to the respective international treaties. For instance, it may be noteworthy that the IUCN brief underscored that “[i]n recent years there have been important developments in both legal systems and jurisprudence to extend reparations to breaches of environmental obligations.” This point would appear to be directly linked to this question before the ICJ, “[w]hat are the legal consequences under these obligations for States where they, by their acts and omissions, have caused significant harm to the climate system and other parts of the environment.” The written statement also highlighted the obligation owed by the international community to developing states.

Although theoretically, advisory opinions are not technically binding on the bodies that request them, they are respected as authoritative pronouncements of law and, in general, accepted. In some cases, such as the Reparations Case, by holding the legal personality of the UN, the ICJ has played an important role in the development of international law. That being said, even a basic pronouncement such as the one that “the obligation involved . . . . [Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons] is an obligation to achieve a precise result—nuclear disarmament in all its aspects” by adopting a particular course of conduct, namely, the pursuit of negotiations on the matter in good faith has been ignored by the nuclear states. While detractors may point to this and other opinions, such as the Wall Case, where Israel has paid little attention to the ICJ’s holdings, it is important to bear that these pronouncements have at least clarified what the law is. And only when we have laws on a point, can deviation from them be treated as a breach and condemned. For that reason, even when a norm of international law may be ignored, the fact that it exists is not devoid of significance.

Previously, several attempts have been made to bring forth climate litigations before the court. Given the preexisting difficulties of ensuring environmental justice in the economically globalizing world, developing states have feared the reprisal of economic superpowers. In 2002, Tuvalu, a small island developing state (SIDS) vulnerable to sea level rise (that it could be washed away in the next thirty years), once considered bringing claims against the United States and Australia—two of the biggest emitters of greenhouse gases (GHG). Another SIDS, Palau, in 2011, gathered the support of thirty more countries and led an attempt to request the UNGA to seek an advisory opinion from the ICJ to clarify the biggest emitters’ legal obligations on climate change. This approach, however, did not see the light of day when the US resisted, and Palau was in fear of losing out on the billions of foreign aid for education, healthcare, and other major projects from the country. Amicus curiae from an NGO like IUCN, sans any direct political agenda or links, could truly help the developing nations without having to become a party to the court themselves or risk ‘angering’ any other nations.

IX. Concerns about Greater Access to the ICJ and International Courts

There are, of course, some good reasons for being somewhat skeptical about the scope of amicus curiae briefs. The cacophony of voices before the Court may also delay, if not complicate the settlement of disputes. There is a further and perhaps more fundamental question about the NGOs often being mostly funded by economically advanced countries, and thus they often concentrate more on issues of pressing interest to these countries, such as radiation due to the depleting ozone layers, in preference to matters of interests of the people of developing countries, such as universal access to safe drinking water. Unlike states, who as monolithic actors are bound by treaties, national laws, and diplomatic considerations, NGOs may often push their agenda much more aggressively. In many states, NGOs may be beset with problems in terms of their lack of legitimacy, lack of internal democratic processes, and limited representativeness. Many developing countries also have often resented the scope of private amicus curiae submissions that they feel further tilt the power balance in favour of the developed countries. It is also probable that as they are not parties before the Court and the judgment is not binding on them, they may not be fully committed to an efficient resolution of the case.

In non-judicial international fora, sometimes some so-called GONGOs (government-organized NGOs) from states with not-so-good records of protection of human rights may, in the name of advocating for good causes, promote parochial interests of the governments sponsoring them. In particular, some such organizations have presented fabricated pictures of human rights in countries notorious for violation of human rights. Clearly, such motivated advocacy would not only reduce the time for legitimate NGOs to make their presentations, but arguably an affront to the accreditation of NGOs. But none of this should deter the NGOs from having more inclusive access to the proceedings, as this paper discusses in the next section of the article that these challenges are possible to be addressed.

X. Why There Should be a Greater Access to the ICJ and How May It Take Place?

Commenting about the role of the NGOs within the system, a scholar once wrote that “the Temple of States [The UN] would be a rather dull place without nongovernmental organisations.” Thus, in the contemporary world, there appears to be no compelling policy reason for shutting the door of amicus curiae submissions in proceedings before the principal judicial organ of the United Nations. The concern regarding information used not obtained through unscientific methods is not unique to the amicus, and this may be allayed by the court requiring detailed scientific explanation of methods, and scientific reviews of the information presented in the briefs.

By adopting 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, 1998 (Aarhus Convention), the stature of environmental NGOs in international environmental matters has been augmented. In particular, it requires that states recognize environmental groups and associations and should not penalize them for seeking access to information and should enable the public to participate in the decision making process on environmental matters. The Convention has also broadened the scope for NGOs to file claims against the EU, both through the European Court of Justice and national courts of European States. The Convention even allows NGOs to take part in meetings of the parties and also nominate candidates for election to the Convention’s implementation committee. This Aarhus Convention seems to have substantially expanded the access for NGOs to bring in environmental cases in several European countries. Kofi Annan, the former Secretary-General has observed that “[a]lthough regional in scope, the significance of the Aarhus Convention is global . . . It is the ambitious venture in the area of ‘environmental democracy’ so far undertaken under the auspices of the United Nations.” If international law and courts are perceived as public good, then procedural rules might warrant widening greater access. But it should be remembered that EU countries are all economically advanced and their economic capacity does not apply to many of the economically backward states in other parts of the world.

Arguably, before the United Nations Economic and Social Council’s modus operandi of cooperation with the NGOs in 1968, often practice did not clearly demarcate between inter-governmental organizations and NGOs. In compiling statistics on international organizations in the 19th and early 20th centuries, there was no segregation between inter-governmental organizations and private NGOs. This might connote that they were not treated as distinct categories. Since the inception of the United Nations and the promotion of the idea of human rights, the state-centric view of international law also changed. While the impetus to this new inclusive community encompassing not just states but also non-state actors had its genesis in the notion of human rights, now it permeates to the wider international legal regime. Since the end of the Cold War, the importance of NGOs seems to have increased even more. Currently, there are 6,784 NGOs with officially consultative status with the UN.

This is particularly important in an area such as the environment where states would often be violators of the law. There is even a suggestion that leading NGOs, such as Greenpeace, are among the most active guardians in protecting the global environment and they should be given access to bring contentious cases before international courts to pursue claims of violations of environmental obligations. Such an argument may seem even more convincing when, due to a lack of financing or manpower, plenty of environmental violations in many jurisdictions—even economically advanced ones—go unpunished in EU states. In the UK alone, one report estimates that between 2009 and 2019, public agencies entrusted with the responsibility of ensuring compliance with environmental standards have witnessed a cut in around thirty percent of their staff and around eighty percent fewer cases filed against business for violation of environmental violations.

But, due to the fundamental distinctions between contentious and advisory jurisdiction of the ICJ, such a proposal seems to be a bit far-fetched. This is because while the former is a binding judgment obliging states to do certain things (including to pay compensation) or refrain from certain things, the advisory jurisdiction only entails answering legal questions. If NGOs are given the access to the ICJ in contentious proceedings, there may be too many cases on the Court’s docket and that may expose states to unbearable costs.

Some argue that instead of having formally crafted rules on NGO participation in international fora even at the cost of raising issues of procedural fairness, a more piecemeal case-by case should be advisable. According to this line of thinking, this would mean that loathed quarters such perpetrators of atrocities may get a seat. Even at a level of law and policy making, the desirability of the selective representation of NGOs is dubious. But, in a judicial setting it is far less desirable. Even the worst of perpetrators would be a party before a court. Thus, this type of question of conferring any semblance of legitimacy is not an issue in case of court proceedings.

The concern regarding vested interest groups pushing their agenda through funding or subsidizing amicus curiae briefs may partially be addressed by strict disclosure requirements as a pre-condition for filing a statement before a court. The concern of lengthy submissions may be addressed by following specific directions on the scope and length of the submission by the amicus. There are examples of international courts and tribunals resorting to this mechanism. Ultimately, without any reform of the ICJ Statute, only states and UN organs would be allowed to trigger the jurisdiction of the Court. Hence, the perennial control over matters that are adjudicated before the Court would be controlled by them.

Another oft-raised concern about the loss of secrecy and party autonomy, though it may be relevant in the context of arbitration proceedings, is not necessarily an issue in the ICJ as the proceedings of the Court are public. Any duplicitous, unhelpful amici briefs can easily be ignored by the court. Indeed, in a well-resourced court such as the ICJ, this should not necessarily be a big concern.

One might contend that existing rules give the ICJ some leeway to decide on amici curiae submissions on a somewhat ad hoc basis. But it has several limits. For instance, under the current rules, in every proceeding, a non-state party would have to seek leave of the Court to submit an amicus brief. Such an outcome is highly uncertain for the party and the Court would also have to dwell on the submission and spend time. Thus, a formal definitive rule allowing access to the Court saves valuable time and resources. Potentially, when there would be a formal rule allowing amici submissions, the door being ajar, less well-resourced NGOs from developing countries may also be more willing to submit their briefs knowing that at least their views would be deliberated.

The need for a greater role of the NGOs has been voiced by very respected insiders of the UN. In his Millennium report, Kofi Annan suggested that “give full opportunities to non-governmental organizations and other non-state actors to make their indispensable contribution to the Organization’s work.” Even though in the League of Nations, the predecessor to the UN, there was no formal recognition of NGOs but they often presented oral reports to its committees, submitted written reports, and took part in deliberations. Such a participatory approach in international law is not just a call of the present times as the ICJ has recognized this in the middle of the last century by pronouncing that “[t]hroughout its history, the development of international law has been influenced by the requirements of international life, and the progressive increase in the collective activities of states has already given rise to instances of action upon the international plane by certain entities that are not states.” And the rule-making potential of an advisory opinion is also clarified in the Namibia case by Judge De Castro where he states that “the reasoning and operative part of an advisory opinion are, at least potentially, clothed with a general authority, even vis-à-vis States which have not participated in the proceedings, and may therefore contribute to the formation of new rules of international law.”

In some cases, international treaties as the lowest common denominator of the consensus among states, can contain expressions which may need further interpretations. It is in these cases, NGOs as amicus curiae may play an important role in protecting the public interest. That is not to imply that states are any less capable of playing this role, but due to the public interest being subjugated to short-term prerogatives, in this type of case where the interest of states may not coalesce with public interest, the NGOs may play a more positive role. Again, from a policy point of view, there are compelling reasons for NGOs to be able to submit amici briefs before the ICJ as the judgments as well as advisory opinions affect not only the rights and obligations of states parties to the dispute, but also increasingly the rights and obligations of individuals as states are not always the defenders of the public interest. Thus, “justice requires that [NGOs] representing the public’s interest have the opportunity to submit information and arguments to the Court. Such participation reinforces the concept of obligations erga omnes and can lead to enhancing the role of the Court and the long-term development of international law.”

Thus, both in contentious and advisory proceedings, the ICJ should, as a matter of rule, allow amicus curiae submissions by NGOs. Allowing amicus curiae briefs before the Court may ensure a useful model like Rule 37 of the ICSID Arbitration Rules, which provides that, upon consulting both parties, the Tribunal may allow a third party to file a written submission regarding a matter within the scope of the dispute. Though consultation of the parties is required, their concurrence is not. In deciding whether to allow such a filing, the Tribunal shall consider, inter alia, the amicus submission would assist the Tribunal in the determination of a factual or legal issue related to the proceeding by bringing a perspective, particular knowledge, or insight that is different from that of the disputing parties; whether the amicus submission would address a matter within the scope of the dispute; or, the third party has a significant interest in the proceeding. The Tribunal shall ensure that the amicus brief does not disrupt the proceeding, unduly burden, or unfairly prejudice either party and ensure that both parties are given an opportunity to present their observations on the amicus submission.

Assuming that the amicus curiae briefs from non-state actors are to be allowed as a matter, of course, not on a case-by-case basis, the next question could be through what mechanism such briefs should be allowed. Although explicit change to the Statue of the ICJ may be an option, that option is difficult to achieve. This is because any amendment to the Statute is a complex procedure. Under Article 66 of the Statute, any amendment needs to be implemented by the same procedure as is provided by the UN Charter for amending that Charter, subject to any provisions which the General Assembly, upon recommendation of the Security Council, may adopt regarding the participation of states that are parties to the Statute but are not members of the United Nations. Under Article 108 of the UN Charter, the Charter can only be amended “by a vote of two thirds of the members of the General Assembly and ratified in accordance with their respective constitutional processes by two thirds of the Members of the United Nations, including all the permanent members of the Security Council”. Thus, it is highly likely that any change to the Statute is extremely unlikely in the near future.

A more pragmatic and less contentious procedure would be to amend the Rules of the ICJ. Article 30(1) of the Statute provides the ICJ with the power to “frame rules for carrying out its functions. In particular, it shall lay down rules of procedure.” As the amendment would only relate to amicus curiae briefs, the changes charted in this article would clearly appear to be a matter of procedure and not any substantive provision of the Statute. Thus, such a change should not raise any objection regarding its propriety. This line of argument is consistent with the observation of the Court in the Nicaragua Case whereby reiterating the finding of the PCIJ in Mavrommatis Palestine Concessions, it observed regarding its rule-making power under Article 30 of the Statute and dealing with complex procedural issues in settling disputes “that it was at liberty to adopt ‘the principle which it considers best calculated to ensure the administration of justice, most suited to procedure before an international tribunal and most in conformity with the fundamental principles of international law.’” Arguably, the only real restraint on the rule-making power of the ICJ would be when a rule would contradict a provision of the Statute, as the rule-making power itself is derived from the Statute. When an amendment to its Rules is necessary, the ICJ established a standing Committee for the Revision of the RoC in 1979 and this Committee meets several times a year to perform its task.

It may be mentioned here that in some cases, the ICJ Judges have vented skepticism about NGO’s roles. For instance, in the Nuclear Weapons case, in his dissenting opinion Judge Oda observed that the majority of the Court should have declined to render opinion, due to inter alia, “[t]he idea behind the resolution whereby the General Assembly (and also the WHO) requested advisory opinions, had previously been advanced by a handful of non-governmental organizations (NGOs).” He further observed that “the request for an advisory opinion which was made by the General Assembly in 1994 originated in ideas developed by some NGOs.” He concluded that “a group of States stimulated by a few NGOs attempted to achieve a breakthrough by obtaining the Court’s endorsement of an alleged legal axiom in order to move towards a worldwide anti-nuclear weapons convention.” According to him, the request for an advisory opinion was made “not in order to ascertain the status of existing international law on the subject but to try to promote the total elimination of nuclear weapons—that is to say, with highly political motives.”

Indeed, as states are political actors, if political motive is a ground for rejection of a request, then by that logic, many of the requests made to the ICJ may be liable to be dismissed. In the same case, Judge Guillaume, in his separate opinion, expressed the view the Court could have declined to render an advisory opinion because it had its genesis “in a campaign conducted by an association called International Association of Lawyers Against Nuclear Arms (IALANA), which in conjunction with various other groups launched in 1992 a project . . . in order to obtain from the Court a proclamation of the illegality of the threat or use of nuclear weapons.” But, like the dissenting opinion of Judge Oda, this opinion, too, does not spell out why the role of NGOs should or could have been a factor in declining the request. On this point, the submission of the Solomon Islands seems to be on the point that:

[T]he involvement of non-governmental organisations in lobbying efforts might in some way taint the bona fides or legitimacy of resolution 49/56K. The resolution was adopted by a majority of members of the United Nations which voted on the matter . . . The efforts of responsible non-governmental organisations, including associations of professional physicians, in raising public awareness and contribution to the processes of international law are to be welcomed.

XI. Conclusion

Ultimately, all laws and institutions are for human beings. The Westphalian model of state-centric international law has undergone substantial change and increasingly, even individuals are allowed direct access to international courts such as the European Court of Human Rights. Institutions are not immutable crystals that should not respond to the needs and circumstances of time. What was justified at the time of the founding of the Court or when its rules were changed in 2004, may not be so now. As Justice Cardozo has put it “[t]he final cause of law is the welfare of society. The rule that misses its aim cannot permanently justify its existence.” The changes to the Rules of the Court as charted in this article are not so radical to alter the jurisdiction of the Court, as amicus curiae brief by NGOs only come into play when at least a state has triggered the contentious jurisdiction or an authorized organization has triggered the advisory opinion jurisdiction. That is not to say that any change to the jurisdiction of the Court may not be in order. It is only to suggest that the Court, as a judicial body, functioning under its Statute, is not vested with that power. It is the state parties who retain such powers.

It is evident that there is a greater propensity to accept amicus submissions by most international courts and tribunals. Now perhaps the pressing question is not so much on whether the ICJ should accept amicus curiae briefs from international NGOs, but rather to what extent and on what conditions, if any, it would. Of course, not all NGOs would have similar objectives or may promote public interest. The ICJ should be well equipped to differentiate between any parochial-interest-driven brief and an amicus brief submitted in the best interest of the public. For it to be truly World’s Court, the ICJ should give access to amicus curiae briefs by NGOs as a matter of defined right, not through any ad hoc discretionary choices, but through clearly defined rules. Many of the arguments typically advanced against a more relaxed approach to amicus curiae briefs are not per se against such briefs, but rather, against potential negative externalities of such briefs. Any fear of dilatoriness, though cogent, as already pointed out, can be mitigated by imposing clearly defined limits on the length of submissions and the time allowed for presenting any oral statement.