The Arctic Sunrise and NGOs in International Judicial Proceedings

Introduction

On November 22, 2013, the International Tribunal for the Law of the Sea (ITLOS, the Tribunal) announced its Order in The Arctic Sunrise Case (Kingdom of the Netherlands v. Russian Federation).[1] The case focuses on the Netherlands’s request for provisional measures in relation to the Russian Federation’s arrest and continuous detention of thirty Greenpeace International (Greenpeace) crew members (the so-called Arctic 30) on board the vessel Arctic Sunrise. The ship, operated by Greenpeace, was flying the flag of the Netherlands. At the time of arrest it was within Russia’s Exclusive Economic Zone to protest against the operation of the offshore fixed oil platform Prirazlomnaya. The Arctic Sunrise was towed to the Russian port of Murmansk and was subsequently seized by the Leninsky District Court. By its Order of November 22, 2013, ITLOS ordered that Arctic Sunrise and all detained persons be released and be allowed to leave the territory of the Russian Federation upon the Netherlands’s posting of a financial security in the amount of 3,600,000 euros with the competent authority of the Russian Federation.[2] After serving two months in detention the charges of hooliganism against the Arctic 30 were dropped and they were released. The Dutch Government has prepared the bank guarantee pursuant to the Tribunal Order to secure the release of the ship.[3]

While the case raises a number of issues, including the Russian Federation’s rejection of the Tribunal’s jurisdiction and its non-appearance, this Insight examines only one aspect: Greenpeace International, the coordinating body of the Greenpeace organizations around the world and operator of the Arctic Sunrise, submitted an amicus curiae brief to the Tribunal.[4]  The Tribunal decided not to include the brief as part of the case file, yet distributed it to the parties and the members of the Tribunal.[5] The Tribunal gave the Netherlands and the Russian Federation the opportunity to provide comments on Greenpeace’s request. The Netherlands did not object to the petition. Russia stated that it did not find a legal basis for granting the petition due to the “non-governmental nature” of the submitting organization.  This Insight discusses the Tribunal’s approach to the Greenpeace amicus curiae submission in light of the role that nongovernmental organization (NGO) amicus curiae submissions have so far played in international law.

ITLOS Procedures for Accepting Non-Party Submissions

ITLOS is a judicial body entrusted with the adjudication of disputes that arise from application and interpretation of the United Nations Convention on the Law of the Sea (UNCLOS). The Tribunal has jurisdiction in contentious and advisory proceedings. Neither the ITLOS Statute nor its Rules mention the term amicus curiae. The Rules do provide for non-party intergovernmental organizations to furnish the Tribunal with unsolicited briefs related to a particular case.[6] Nevertheless, the exact meaning of the term “intergovernmental organization” in the ITLOS Statute and Rules has been contested.[7] Under Article 48 of the Rules, the parties may propose modifications to the Rules, for example that the Tribunal permit amicus submissions, which the Tribunal will allow if it considers them appropriate in the circumstances of the case.

ITLOS responded to an NGO amicus curiae submission previously, in an advisory proceeding. On August 17, 2010, the ITLOS Registry received a request by Stichting Greenpeace Council and the World Wide Fund for Nature (WWF) to permit them to participate as amici curiae in the advisory proceedings in Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area. The Tribunal informed the requesting organizations that their statement would not be included in the case file, for it was not submitted in accordance with the procedure. However, the Tribunal transmitted the brief to the states and intergovernmental organizations that had submitted written statements and posted the brief on its website.[8] Thus, the Tribunal was at least partially receptive to hearing NGO views.

The Arctic Sunrise case is the first time an NGO has made an amicus curiae submission in a contentious proceeding. The brief, dated October 30, 2013, aimed to assist the Tribunal in adjudicating the Netherlands’ request for provisional measures. In particular, the brief argues the applicability of international human rights law to the Russian Federation authorities’ actions, which it claims violated the rights of those on board the Arctic Sunrise.[9]

NGOs as Amici Curiae in Domestic and International Proceedings

The American Law Institute and the International Institute for the Unification of Private Law (UNIDROIT) explain that: “[w]ritten submissions concerning important legal issues in the proceeding and matters of background information may be received from third persons with the consent of the court, upon consultation with the parties. The court may invite such a submission. The parties must have an opportunity to submit written comment addressed to the matters contained in such a submission before it is considered by the court.”[10]

Amicus curiae has been an integral part of English law and practice. In early English cases amici did not have an entitlement to participate in the proceedings. However, amicus submissions were accepted for different purposes, including relieving problems created by an adversarial system. Moreover, amici were allowed to expand their role from neutral informers of the court, on matters which the court would have otherwise overlooked, to advocates for parties whose interests might have been prejudiced by the impending judgment.[11] As Professor Michael Reisman wrote in 1970, “[i]n common law countries, the amicus curiae brief has been an institution which has provided useful information to courts, permitted private parties who were not litigating to inform the court of their views and the probable effects the outcome might have on them and, overall, has served as means for integrating and buttressing the authority and conflict-resolving capacities of domestic tribunals.”[12]

Procedures allowing NGO amicus curiae briefs are currently more a norm than an exception in international judicial proceedings. The first international court to legally adopt a procedure for NGO amicus submissions was the European Court of Human Rights (ECHR). In 1983, revised procedural rules granted states, individuals, and organizations not party to the proceedings the right to make unsolicited submissions to the ECHR, though the ECHR may reject the briefs “in the interests of the proper administration justice.”[13] Currently, NGOs are very active participants in litigation as amici.[14] However, they have no legal entitlement to be heard by the ECHR.[15]

The Inter-American Court of Human Rights formalized the amicus procedure for NGOs in 2009.[16] Under the 2009 amendments to the Rules of Procedure, an amicus curiae submission may be submitted within 15 days following a hearing or, if there is no hearing, within 15 days after the Resolution setting the deadline for parties’ final written submissions; the brief is then transmitted to the parties.[17] Thus, the Inter-American Court is even more welcoming to civil society’s participation than its European counterpart.

In 1998, the World Trade Organization (WTO) Dispute Panel confronted the issue of NGO amicus curiae briefs in the U.S.-Shrimp case (commonly referred to as “Shrimp-Turtle”).[18] The Panel received two amicus briefs written by NGOs. The United States also designated a part of the brief jointly authored by the Centre for Marine Conservation and the Center for International Environmental Law as an Annex to its own submission. The number of NGO amicus curiae submissions grew on appeal. The Appellate Body held on November 6, 1998, that “[i]n the present context, authority to seek information is not properly equated with a prohibition on accepting information which has been submitted without having been requested by a panel. A panel has the discretionary authority either to accept and consider or to reject information and advice submitted to it, whether requested by a panel or not.”[19] Although WTO panels routinely admit NGO briefs and share them with parties, US-Tuna II case is the rare case where the Panel considered the NGO amicus briefs as relevant.[20] Yet, on appeal the Appellate Body “did not find it necessary to rely” on the briefs.[21]

Rule 103 and Rule 149 of the Rules of Procedure and Evidence of the International Criminal Court indicate the power of the Chamber and Appeals Chamber to invite a State, organization, or a person to submit written or oral observations.[22] NGOs have used this procedure a number of times. For instance, on May 12, 2012, the ICC Pre-Trial Chamber I agreed to hear the views of Lawyers for Justice in Libya and the Redress Trust in the Prosecutor v. Saifal-Islam Gaddafi and Abdullah Al-Senussi case.[23]

The International Court of Justice (ICJ) adheres to a more restrictive model of accepting NGO amicus submissions. Article 34 of the ICJ Statute allows only “public international organizations” and States to submit their views about a case before the Court. In 2004, the ICJ adopted Practice Direction XII, regulating amicus curiae submissions by international NGOs. It states that while NGO submissions will not be treated as part of the case file, they will be saved in the Peace Palace; entities presenting written or oral statements under Article 66 of the Statute will be informed as to the location of documents submitted by NGOs for consultation.[24]

Implications

The Greenpeace submission of an amicus brief in the Arctic Sunrise case and the Tribunal’s resulting treatment of it are interesting from a number of perspectives.

First, Greenpeace’s petition before ITLOS in this case shows that NGO requests to be heard in the capacity of amici persist despite the rejection in the earlier case. Greenpeace has now petitioned to participate in both advisory and contentious proceedings. The nature of the dispute in the Arctic Sunrise case may explain the Tribunal’s decision not to publish the amicus submission on its website. In contrast to the advisory proceedings in Case No. 17, the Arctic Sunrise case is adversarial. The Russian Federation, a party to the case, refused to participate in the proceedings and expressed a negative view in relation to the admission of the Greenpeace brief. Furthermore, when one of the parties is absent, as indicated by the Tribunal’s Order, the Tribunal is obliged to protect the procedural rights of both parties and to facilitate the implementation of the principle of equality of the parties. The Tribunal’s task of ensuring the equality of arms, including giving both sides “equal opportunities to put their side of the story and to challenge the evidence put by the other side,”[25] was made even harder by the absence of the Russian Federation. In light of this, the Tribunal might have refrained from giving exposure to a position unwelcome by one of the parties. 

Second, in contrast to Case No. 17 in which Greenpeace and WWF asked to be heard in a case unrelated to their interests, in the Arctic Sunrise case, Greenpeace has been directly affected. The financial arrangements related to the case are indicative of this: although it was the Netherlands that deposited the required bond, Greenpeace is in fact compensating the Dutch government for the expenses.[26] The fact that the ITLOS procedures do not provide for legal standing for the non-state actors, even when they have been directly affected by a dispute, reflects the fundamentally inter-State structure of international law. Yet, amicus briefs in domestic courts as well as in international tribunals have often served the function of giving a floor to otherwise invisible interests.  For example, in the case Winterwerp v. the Netherlands that led to the adoption of the amicus procedure in the ECHR, the Court accepted the amicus brief by the UK “which was not a party to the case but had an interest therein...”[27] ITLOS has allowed the Netherlands to call as a witness Greenpeace International’s Legal Counsel, Daniel Simons, who was examined by the Agent of the Netherlands and answered questions put to him by the Russian judge Vladimir Golitsyn in relation to the factual circumstances of the arrest. [28]

Finally, the Greenpeace petition in the Arctic Sunrise case serves as an opportunity to examine the implications of NGO participation in international law-making. Some commentators support enhanced NGO participation. For example, Professor Robin Eckersley argues that NGO participation as amicus curiae in WTO dispute settlement procedures has the potential of creating a transnational space for dialogue on environmental matters.[29] Others remain sceptical of international NGO claims. Professor Dan Bodansky, for instance, cautions against confusing NGO involvement with public participation. “Indeed, even if international meetings were opened up and NGOs given unrestricted access, few members of the public would as a practical matter be able to participate,” writes Bodansky.[30] The Arctic Sunrise case gives food for thought to revisit this question.

About the Author:

Dr. Anna Dolidze, ASIL member and Co-Vice Chair of the Teaching International Law Interest Group is Assistant Professor at the University Of Western Ontario Faculty of Law.