Access / Participation
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Apparently, the rapid multiplication in the number of international judicial bodies experienced in the last 15 years, has been accompanied by a growing willingness to have recourse to them. The number of cases submitted each year to all manner of judicial and quasi-judicial bodies is on the rise and shows no signs of leveling off. Although originally designed to serve government's interest, providing a formal and law-based alternative to diplomatic means of dispute settlement, nowadays the international judicial system is open, to varying degrees also to other international actors, such as International Organizations, and legal and natural persons (individuals, corporations, NGOs, etc.). To varying degrees, almost all international judicial fora are accessible by entities other than States.
Of course, depending upon the kind of jurisdiction an international judicial body is called to exercise, different entities might have standing. Whether a given court should be accessible only by a category of international actors or should be available to other categories, is open to debate. For instance, it can be argued whether international organizations should have standing before the International Court of Justice in contentious cases against States; or whether the Optional Clause of the International Court of Justice is obsolete, and is compulsory jurisdiction a better alternative; or whether individuals should have a direct right of petition to the Inter American Court of Human Rights; or, conversely, whether the mass of cases filed by individuals since the 1990s is overwhelming the European Court of Human Rights, and what measures should be taken to address this.
Moreover, international judicial bodies can be accessed, in the case of contentious cases, either as plaintiffs and defendants (or applicants and respondents, to use a terminology more common in the international arena), both at first and appellate level. However, matters can be referred to them also by way of advisory opinions, requests for preliminary rulings, or even submission of friend of the court (amicus curiae) briefs. Whether the possibility of requesting the ICJ or the ITLOS advisory opinions on critical legal questions of interest to human kind as a whole should be extended beyond a handful of international organizations is a legitimate question. It could also be asked whether NGOs should be allowed to file amicus curiae briefs with the WTO Dispute Settlement System, and what are the consequences of this.
Yet, even when judicial bodies are accessible, participation can be limited by the lack of capacity. Indeed, making effective use of these bodies requires resources, both human and financial. For instance, developing countries are in general short of both. During the last decade trust funds to help parties with insufficient resources defray the costs of litigation have been created. Yet, the success of these initiatives has been at best mixed. More than scarce financial resources, however, it is the lack of human resources that is most likely the principal difficulty facing potential actors, such as developing countries. Indeed, if human resources are inadequate or non-existent, the only alternative might be retaining private international lawyers, which will easily magnify litigation costs. What arrangements can be created to ensure adequate human resources, and decrease litigation costs (or secure alternative sources of financing)?
Finally, the existence of international judicial bodies, the possibility of accessing them, and the capacity of States to utilize them are not the only prerequisites for cases to be submitted to judicial perusal. Even when all those material elements are in place, actors might simply not be willing to have third-parties decide the dispute. While the three aforementioned elements relate to legal and procedural issues, the question of willingness to utilize is a quintessential political matter. Did skepticism towards the law, principles and values applied in international judicial fora lead over the decades to adjustments in the structure, procedure and jurisprudence of those bodies? Do these changes account for the greater participation in international judicial proceedings in the last decade?
PICT has being active in the area of Access and Participation of International Justice by promoting research and organizing symposia on selected aspects of access by developing countries, international organizations and individuals. PICT also organizes training courses on the law and practice of international courts and tribunals in developing countries.