International dispute resolution as polyphony? Amicus curiae interventions before international courts and tribunals

• Author: Dr. Anna Dolidze
• Position: Research Lead and Associate Professor at Rabdan Academy, UAE
• Pages: 1-36

ARTICLES

INTERNATIONAL DISPUTE RESOLUTION AS

POLYPHONY? AMICUS CURIAE INTERVENTIONS

BEFORE INTERNATIONAL COURTS AND

TRIBUNALS

DR. ANNA DOLIDZE*

ABSTRACT

The proliferation of amicus curiae participation in international courts and

tribunals has received considerable scholarly attention yet has remained under-

theorized. The central question in relation to the phenomenon remains unan-

swered and undertheorized: Does the fact that there are often multiple and

diverse actors now engaged with judges in the capacity of amici curiae in any

way influence the character of judicial proceedings?

Traditionally, international dispute resolution process has been represented

as a triadic dialogue: that is, a dialogue between two parties and a judge. This

Article argues that with the increasing participation of amici curiae in interna-

tional litigation, the nature of dispute resolution itself has changed.

This Article traces a new emerging pattern in the international courtroom

dynamic. Multiple and diverse participants in courtrooms have reshaped how

international dispute resolution processes take place. Drawing on the work of

the Russian literary scholar Mikhail Bakhtin, the Article argues that we are

witnessing a move away from the triadic dialogue model of international dis-

pute resolution to the emergence of polyphony in international trials. Polyphony

in international dispute resolution has significant normative, theoretical, and

practical consequences. As a new and distinct theoretical lens, polyphony in

international dispute resolution sets ground for future thinking on the chang-

ing nature of international law-making by international courts and tribunals.

I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

II. AMICUS CURIAE IN INTERNATIONAL LAW. . . . . . . . . . . . . . . . . . . 7

III. MIKHAIL BAKHTIN’S THEORY OF POLYPHONY . . . . . . . . . . . . . . . 10

A. Multiple and Diverse Voices Coexist (Coexistence) . . . . . . . . 11

* Dr. Anna Dolidze is a Research Lead and Associate Professor at Rabdan Academy, UAE. The

author would like to thank Irakli Kakabadze, Nino Antadze, Ashleigh Imus, Kristen Ebert-

Wanger, David Ilmar Beecher, Laurence Helfer, Bill Bowring, the participants of the Fourth

Annual Junior Faculty Forum for International Law for comments on the earlier drafts of this

article. V

C 2023, Dr. Anna Dolidze.

1

B. Multiple Voices Shape Each Other Through Dialogue

(Dialogism) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

IV. POLYPHONY IN INTERNATIONAL DISPUTE RESOLUTION: AMICUS

CURIAE AS A CASE STUDY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

A. Multiple and Diverse Voices Coexist . . . . . . . . . . . . . . . . . . 14

1. NGOs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

2. International Organizations . . . . . . . . . . . . . . . . . 19

3. Corporations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

4. States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

5. Individuals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

B. Multiple Voices Shape Each Other Through Dialogue. . . . . . 23

V. THE FUTURE OF POLYPHONY IN INTERNATIONAL LAWMAKING . . . . . 32

VI. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

I. INTRODUCTION

On October 25, 2021, the European Court of Human Rights deliv-

ered a judgment in the case Big Brother Watchers v. the United Kingdom.

The case concerned the degree of electronic surveillance conducted by

the U.K. government. Seventeen non- governmental organizations sub-

mitted amicus curiae briefs.

1

See Big Brother Watch v. United Kingdom, App. Nos. 58170/13, 62322/14 and 24960/15, ¶

4 (May 25, 2021), https://hudoc.echr.coe.int/eng?i=001-210077.

In the Grand Chamber, the leave to inter-

vene was also granted to the governments of France, Norway, and the

Netherlands, and to the United Nations (U.N.) Special Rapporteur on

the Promotion of the Right to Freedom of Opinion and Expression.

2

International law scholarship has explored the role of amicus curiae

participation in international law.

3

Nevertheless, the central question

in relation to the phenomenon of amicus curiae participation in

1.

2. Id. ¶ 9.

3. See generally, e.g., ASTRID WIIK, AMICUS CURIAE BEFORE INTERNATIONAL COURTS AND

TRIBUNALS (Burkhard Hess et al. eds., 1st ed., 2018) (discussing amicus curiae in international

courts and tribunals); see also Rachel Cichowski, The European Court of Human Rights, Amicus Curiae

and Violence Against Women, 50 L. & SOC’Y REV. 890, 891 (2016) (discussing the participation of

advocacy organizations and individuals in international law); see also Lance Bartholomeusz, The

Amicus Curiae before International Courts and Tribunals, 5 NON-STATE ACTORS & INT’L L. 209, 256

(2005) (detailing how the WTO opened the door to amicus briefs); JORGE LUI

´S MIALHE, THE

NGOS AS AMICI CURIAE IN THE INTERNATIONAL TRIBUNALS 2 (2011); see also Lloyd Hitoshi Mayer,

NGO Standing and Influence in Regional Human Rights Courts and Commissions, 36 BROOK J. INT’L L.

911, 936 (2011) (discussing the role of NGOs in European human rights courts); see also Dinah

Shelton, The Participation of Nongovernmental Organizations in International Judicial Proceedings, 88

AM. J. INT’L L. 611, 611 (1994) (stating that NGOs are “placing an increasingly important role in

international litigation).

GEORGETOWN JOURNAL OF INTERNATIONAL LAW

2 [Vol. 54

international tribunals remains undertheorized: in what way do they

impact the process of international dispute resolution? Does the fact

that there are often multiple and diverse actors acting as amici and

engaging with judges in any way influence the character of judicial

proceedings?

Traditionally, the international courts and tribunals (ICTs) have

been represented by scholars as a triadic dialogue: that is, a dialogue

between two parties and a judge. Figure 1 illustrates the triadic dispute

resolution model.

FIGURE 1: Triadic Dispute Resolution.

For example, in his seminal writing on international conflicts,

Terrence Hopmann conceptualizes international dispute resolution as

a dialogue between two parties and an arbitrator: “[i]nternational

courts, such as the International Court of Justice ... are often intro-

duced to arbitrate disputes. In this instance, the arbitrator listens to the

arguments of the two sides and then renders a decision that is binding

on the parties .. . .”

4

Conceptualization of international dispute resolution as a triad, how-

ever, does not provide a full account of the dispute resolution process.

This Article argues that the increasing participation of amicus curiae in

international litigation has changed the nature of dispute resolution

itself.

The Article examines the participation of amici curiae in interna-

tional tribunals and traces a new emerging pattern in the international

courtroom dynamic. Multiple and diverse participants in courtrooms

have reshaped how international dispute resolution processes take

place. Drawing on the work of the Russian literary scholar Mikhail

4. P. TERRENCE HOPMANN, THE NEGOTIATION PROCESS AND THE RESOLUTION OF INTERNATIONAL

CONFLICTS 228 (1996).

INTERNATIONAL DISPUTE RESOLUTION AS POLYPHONY?

2022] 3