New voices II: internationalizing and domesticating law.

Position:Proceedings of the One Hundred Fifth Annual Meeting of the American Society of International Law - Discussion

This panel was convened at 3:00 p.m., Friday, March 25, by its moderator, Joel Trachtman of the Fletcher School, Tufts University, who introduced the panelists: Anna Dolidze of Cornell Law School; Molly Beutz Land of New York Law School; Maximo Langer of the University of California at Los Angeles School of Law; and Tonya Putnam of Columbia University. **


By Anna Dolidze

On March 18, 2011, the European Court of Human Rights handed down its judgment in Lautsi v. Italy, which concerned the display of religious symbols in classrooms in Italy. The case is noteworthy in many respects, including its very large number of third-party interveners. Ten countries, thirty-three members of the European Parliament, and several organizations submitted their views on the case as amici curiae. (1)

The Lautsi case, which is one of hundreds of similar instances involving the transnational collaboration of civil society organizations (CSOs) before the European Court, represents a noteworthy trend. This phenomenon--the impact of litigation by civil society organizations on the European Court of Human Rights (ECHR)--is the object of my study. I aim to answer the questions: What impact does litigation by CSOs have on the European Court of Human Rights? And what are the specific legal strategies through which CSOs influence the Court?

In the larger study, I find four legal strategies through which CSOs influence the Court. They stand as complainants; they submit amicus briefs; (2) they serve as experts; and they provide legal aid to individuals and organizations that act in all of the above-mentioned capacities.

However, in these particular remarks I concentrate on the CSO participation before the Court in the capacity of third-party interveners. By examining the typology of organizations that have taken part in amicus curiae procedures before the Court, I argue that British CSOs were instrumental in legalizing and strengthening the amicus curiae institution. Organizations whose objective was to influence domestic politics were the early risers in the process, while organizations with international aspirations took up the torch later. It should be noted that at this point I only focus on the first ten years of the existence of the amicus institution, as this period makes it possible to discern early influences.

Traditional legal scholarship considered that only states make international law. (3) However, during the last twenty years scholarship has been moving toward exploring the ways in which nonstate actors, including CSOs, relate to international law. The scholarship is usually "top down," for example, Sally Engle Merry (4) and Harold Koh (5) have looked at how international law is translated domestically. In this vein, there are a number of very interesting works on the influences of the European Court on domestic legal systems of member states. (6) On the other hand, there are notable works on international law "from the bottom," including works by Balakrishnan Rajagopal, Upendra Baxi, and Boaventura Santos. (7) The latter have also acquired a normative dimension. In my remarks, I will explore how international human rights law has been influenced from the "top of the bottom," considering that the CSOs that I focus on are influential and relatively resourceful domestic groups.

Moreover, in their studies of international tribunals, most scholars have analyzed courts as an interaction among a triad (two adversary parties and the judge) in the courtroom. (8) However, with the increased activism and influence of CSOs in transnational litigation, it is important to reorient scholarship to see the elephant in the room, which deserves more attention. As CSOs have become visibly active in their participation before international tribunals, it has become more important to analyze the impact of their presence.

Scholars who have previously studied amicus curiae influence on the European Court agree that amicus curiae participants influence the Court's judgments in a variety of ways. (9) However, not much is known about the genealogy of the amicus curiae institution itself or about the organizations that have been active in developing it.

The ECHR is the first international human rights court to provide the right of individual petition at the international level. Today, the jurisdiction of the Court encompasses 800 million people in forty-seven countries. (10) The Convention that serves as the basis for the Court was opened for signature on November 4, 1950. (11) The Court was established in January 1959 as eight member states deposited their declarations recognizing its compulsory jurisdiction. (12) The right of the individual petition is the hallmark of the regime. (13)

The Convention also allows for submission of third-party interventions. According to Article 36(2) of the Convention: "The President of the Court may, in the interest of the proper administration of justice, invite any High Contracting Party which is not a party to the proceedings or any person concerned who is not the applicant to submit written comments or take part in hearings." (14)

The initial version of the European Convention did not envisage the third-party intervention procedure. The Rules of Procedure, adopted by the judges themselves in 1983, mentioned the possibility for the first time. The legalization took place due to efforts by several British CSOs and the UK government itself. Examination of the organizations that took an active part in the amicus curiae procedure in the first ten years shows that organizations with domestic purposes played an important role in developing the institution initially, while "internationalist" organizations strengthened and transnationalized the procedure at a later stage.

Internationalist organizations, in...

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