Avenues for Participation by NGOs in
at the European Court of Justice and World Trade Organization
Jacqueline Peel*Copyright (c) 2001 Colorado Journal of Int'l Envt'l Law and Policy
Colorado Journal of International Law and Policy (12 COLO. J. INT'L ENVTL. L. & POL'Y 47)
* Senior Research Assistant on the Law Faculty at Queensland University of Technology in Brisbane, Australia. LL.M., New York University School of Law in 2000, where she was awarded a United Nations International Law Commission Scholarship, allowing her to spend the summer in Geneva, Switzerland assisting James Crawford, I.L.C. Special Rapporteur on State Responsibility. Graduate Certificate of Law (Environment), Queensland University of Technology; Bachelor of Laws (Hon I) University of Queensland. [*47]
Traditionally, sovereign states have been the sole legitimate actors in the field of international relations. States alone have negotiated multilateral agreements, accepted binding international commitments, and enforced international obligations. However, in an increasingly globalized society, the traditional concept of international law as the "law of nations" (1) no longer reflects the realities of international society. Modern international society includes a range of non-state actors that are increasingly demanding a voice in international organizations and [*48] processes.
Non-governmental organizations (NGOs) are among the most dynamic and influential groups of non-state actors in the international legal field. (2) In its broadest sense, the term "NGO" covers a wide variety of groups and entities, such as members of the scientific community, non-profit groups and associations, business entities, legal organizations, members of the academic community, and individuals. (3) This paper uses the term "NGO" to mean non-profit environmental groups and associations that derive their legitimacy in the international arena, at least in principle, from their close link with general public constituencies. Even within this subdivision of NGOs, there is a wide range of groups - grassroots community organizations, national environmental groups, and international associations like Greenpeace - with a diversity of funding, expertise, organizational capacity, and representation.
In the context of the global environment, where issues often transcend national boundaries, NGOs are arguably more effective guardians of the public interest in environmental protection than States preoccupied by national self-interest. (4) In recognition of NGOs' contribution to environmental protection and the importance of public participation in resolving environmental issues, (5) states have been increasingly willing to allow NGO participation in multilateral negotiations on environmental issues and in the formulation of international environmental policy. (6) Nevertheless, the international community has been reluctant to grant NGOs the power to intervene in suits to enforce states' international environmental obligations. (7) However, recent developments in two international fora - the European Court of Justice (ECJ) and the dispute resolution process of the World Trade Organization (WTO) - suggest new avenues for NGO [*49] participation in environmental dispute settlement. These developments may serve as precedent for greater public involvement in other international tribunals deciding environmental cases.
Critics have suggested that the lack of public participation in the ECJ and WTO decision-making processes has undermined the effectiveness of their respective environmental programs. (8) In the case of the ECJ, the inability of concerned individuals and organizations to compel the European Community (interchangeably referred to as Community or EC) institutions to comply with Community environmental law is alleged to contribute to a "democratic deficit" within the European Union (EU). (9) Similarly, the closed and exclusive dispute resolution process of the WTO is said to undermine its legitimacy to rule on the legality of environmental policies with trade effects. (10)
Part II of this article examines the existing opportunities for NGOs to compel Community institutions to comply with Community environmental law. It then assesses possibilities for enhanced NGO involvement under the new European Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters. Part III examines the WTO dispute settlement process and discusses potential new avenues for NGO participation available under a recent ruling of the WTO's Appellate Body. Finally, Part IV of the article discusses whether NGO participation in the decision-making processes of the ECJ, the WTO, and other international tribunals affords the public an effective voice in international environmental decision-making. [*50]
II. NGO Participation in Disputes Before the European Court of Justice
A. Opportunities for NGO Participation in the ECJ Under the Present Legal Regime: Interpretation of Article 173 in the Greenpeace Case
In contrast to many tribunals in the supranational legal system, the ECJ already allows significant NGO participation. (11) NGOs may notify the European Commission when Member States allegedly breach Community environmental laws and lobby the Commission or a Member State to bring the matter before the ECJ. (12) Alternatively, NGOs may, where permitted by national rules of standing, bring legal proceedings in Member States' domestic courts based upon causes of action created by Community environmental law. (13) NGOs have also used the "preliminary reference procedure" (14) to obtain ECJ rulings on questions of Community environmental law raised in national courts. (15) However, the ability of NGOs to initiate proceedings in the ECJ to contest the legality of the actions of Community institutions under Community law is strictly limited by article 173 of the Treaty Establishing the European Community, which provides that "any natural or legal person," which would include an NGO, may only institute proceedings directly against a Community institution if the "person" is the addressee of the institution's decision or the decision is of "direct and individual concern" to the person. (16) Thus, in order for an environmental NGO to take direct action against a Community institution's decision, it must be able to [*51] demonstrate that it is directly and individually affected by the act in question.
In a series of cases involving economic issues, the ECJ held that persons were "individually" concerned by a decision if it "affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually just as in the case of the person addressed." (17) ECJ jurisprudence thus requires the identification of a "closed class" of affected individuals in order to invoke the criterion of "direct and individual concern." (18)
In Greenpeace International & Ors v. Commission of the European Communities, (19) a number of environmental NGOs and other concerned individuals (20) challenged a European Commission decision to disburse approximately 12 million European Currency Units to Spain for the construction of two power stations in the Canary Islands. (21) The applicants contended that the disbursement violated the Commission's obligation to protect the environment because it had failed to ensure that a prior environmental impact assessment was conducted in accordance [*52] with Council Directive 85/337/EEC. (22) The Commission contended that the applicants had failed to establish standing to challenge the decision. (23) The Court of First Instance upheld the Commission's decision, relying on the settled case law establishing the criteria of "direct and individual concern." (24) The applicants appealed the decision to the ECJ. (25)
The appellants argued that the nature and character of the environmental interests affected by the Commission's decision required a different approach to article 173 standing than that relied upon in previous cases dealing with economic interests and rights. (26) The appellants contended that transposition of the "closed class" requirement to the environmental context would create "a legal vacuum in ensuring compliance with Community environmental legislation, since in this area the interests are, by their very nature, common and shared, and the rights relating to those interests are liable to be held by a potentially large number of individuals so that there could never be a closed class of applicants...." (27) In the appellants' view, this void could not be filled by the possibility of bringing proceedings before national courts, because such proceedings challenge only a Member State's failure to comply with Community law and not the lawfulness of Community action under Community law. (28) The appellants relied on the broader standing requirements in some Member States, (29) the case law of the ECJ, the declarations of Community institutions and Member States on environmental matters, (30) and a range of international environmental [*53] instruments (31) to support a broader reading of article 173's standing requirements in environmental cases. In particular, the appellants argued that environmental associations may establish standing where "their primary objective is environmental protection and they can demonstrate a specific interest in the question at issue." (32)
The ECJ rejected the appellants' argument, holding that the Court of First Instance's interpretation of article 173 was consistent with the ECJ's case law. (33) The Court also found that national court proceedings commenced by a number of the appellants - although concerning different subject matter than the proceedings in the Court of First Instance - were based on the same rights afforded to individuals by Directive 85/337. (34) The Court believed that the appellants' rights would be adequately protected by the national courts, because the national courts could refer questions of EC law to the ECJ for interpretive rulings if required. (35)
The Greenpeace case highlights the difficulties environmental NGOs face in attempting to mount a direct challenge to Community action allegedly taken in contravention of Community environmental law. The "closed class" criterion is difficult, if not impossible, to satisfy in the context of environmental rights, which are inherently shared by the community at large. Moreover, environmental associations are not recognized as having any special competence to bring enforcement proceedings, despite their particular interest in environmental protection. (36) By denying the general public a right to proceed directly against Community institutions allegedly violating Community law, the [*54] ECJ has arguably undermined the ability of EC environmental laws to achieve their articulated goals. (37)
B. Impact of the Aarhus Convention on NGO Standing in the European Community
The Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention) (38) was concluded under the auspices of the United Nations Economic Commission for Europe (UNECE) (39) at its fourth "Environment for Europe" Convention in Aarhus, Denmark in June 1998. All the members of the European Union, as well as the European Community itself are signatories to the Convention. (40) The Convention will come into force nineteen days after receipt of the sixteenth ratification. (41)
The Convention is one of the first binding international instruments (42) to recognize "the right of every person of present and [*55] future generations to live in an environment adequate to his or health and well-being." (43) The right is guaranteed by three types of procedural rights that each Party undertakes to provide: (1) access to information; (2) public participation in decision-making; and (3) access to justice in environmental matters. (44) The Convention clearly imposes obligations on both States and regional economic integration organizations, like the European Community, that ratify it. (45) Given the inclusion of Community institutions within the scope of the Convention, the question arises whether the right of access to justice, which the European Community will be obligated to guarantee if it proceeds with ratification, will overcome the standing limitations imposed upon NGOs by the Greenpeace case.
Article 9 of the Aarhus Convention provides for access to justice in environmental matters. The article requires Parties to ensure access to justice in three circumstances: (1) Parties must ensure access to a review procedure before a court or another independent and impartial body established by law for any person who considers that his or her information request has been ignored, wrongfully refused, inadequately answered, or otherwise not dealt with in accordance with the Convention's access to information provision under article 4; (2) Parties must ensure access to a review procedure before a court or another independent and impartial body established by law for "members of the public concerned" to challenge "the substantive and procedural legality of any decision, act or omission subject to the provisions of article 6" (dealing with public participation in decision-making), and "where [review is] so provided for under national law ... of other relevant provisions of this Convention"; and (3) Parties must ensure access to administrative or judicial procedures for "members of the public ... to [*56] challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment." (46)
Although article 9 specifically refers to rights of access to justice within the framework of "national legislation" or to challenge acts allegedly in contravention of "national law," these rights may also provide a remedy against improper actions of the European Community. The obligations of the Aarhus Convention fall on each Party without distinction. Moreover, the definition of "public authorities" is expressly extended to the institutions of regional economic integration organizations who become Parties to the Convention. (47) As discussed above, the European Community will become a party to the Convention upon ratification. (48) Thus, there is a strong argument that the references to "national law" must be construed as extending to Community laws where the "Party" or "public authority" at issue is the European Community or one of its institutions.
The provisions of paragraphs (2) and (3) of article 9 offer the greatest potential for NGOs seeking to bring enforcement actions against Community institutions. (49)
1. Public Participation Remedy Under Article 9(2)
Article 9(2) of the Aarhus Convention obligates the Parties to provide access to justice to members of the public having either a "sufficient interest" in a matter or "maintaining impairment of a right." (50) Parties must determine whether an applicant has sufficient interest or maintains an impairment of a right in accordance with the requirements of national law and consistent "with the objective of giving the public concerned wide access to justice within the scope of the Convention." (51) [*57] Many environmental NGOs will meet the definition of "the public concerned" in article 2(5) of the Convention. (52) Moreover, NGOs may also have rights capable of being impaired for the purposes of invoking article 9(2). (53)
Whether the language of article 9(2) creates an obligation to provide a remedy to NGOs in matters involving activities subject to article 6 (54) remains in question. The confusion arises because article 9(2) obligates the Parties to allow citizens to "challenge the substantive and procedural legality of any decision, act or omission subject to the provisions of article 6." (55) Article 6 applies to "decisions on whether to permit proposed activities listed in annex I," (56) as well as other decisions, not listed, which have a significant effect on the environment, where a Party determines that such activity is subject to the provisions of the article. (57) Article 6 goes on to specify a number of procedural requirements to ensure that members of the public are able to participate in decisions within its ambit. (58) If article 9(2) only creates an obligation to provide a remedy where a Party fails to make provision for public participation in accordance with article 6, the reference to challenging the "substantive ... legality of any decision" would be superfluous, since the requirements [*58] of article 6 are procedural in nature and do not necessitate the making of a decision by a public authority, but only the taking of some action. Instead, the reference to challenging the substantive legality of decisions "subject to the provisions of article 6" suggests that the remedy allows challenges to the decisions of public authorities that permit annex I activities or other included activities with a significant effect on the environment. Activities encompassed by annex I include power stations and other major installations and projects which might have harmful environmental effects. However, the decisions encompassed by article 6 (and hence potentially challengeable under article 9(2)) are only those decisions on whether to permit the proposed activity. (59) Generally, permitting decisions will be within the jurisdiction of the member States rather than Community institutions. (60) Therefore, a decision concerning funding to support the construction of power stations, such as that in the Greenpeace case, would most likely not be considered to be a decision "on whether to permit" the activity. (61)
2. Challenges to Contravention of Environmental Laws under Article 9(3)
Potentially the most far-reaching of the Aarhus Convention's access to justice provisions is that contained in article 9(3). Access to justice for members of the public to enforce environmental laws was a hotly debated issue in the negotiations leading up to the Aarhus Conference. (62) The result of this debate is reflected in the terms of article 9(3), which provides:
In addition and without prejudice to the review procedures referred to in [articles 9(1) and (2)] above, each Party shall ensure that, where they meet the criteria, if any, laid down in its national law, members [*59] of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment. (63)
As members of the "public," NGOs are entitled to challenge the actions of public authorities that contravene environmental laws. (64) Prospective challengers, however, must "meet the criteria, if any, laid down in [a Party's] national law." (65) In the EU context, where NGOs seek to challenge the actions of Community institutions that allegedly contravene provisions of Community environmental laws, these criteria would seem to include the article 173 requirements of "direct and individual concern." (66) Rather than preserving the status quo, however, the Aarhus Convention, if ratified by the European Community, may provide a basis for the ECJ to reconsider its application of the "direct and individual concern" criterion in environmental cases.
The European Commission actively participated in the negotiations leading to the conclusion of the Convention in Aarhus. (67) In its declaration upon signature of the Convention, the European Community expressed its full support for the Convention's objectives: "considering that the European Community itself is being actively involved in the protection of the environment through a comprehensive and evolving set of legislation" it is important "not only to sign up to the Convention at Community level but also to cover its own institutions, alongside national public authorities." (68) The Community declared that "the Community institutions will apply the Convention within the framework of their existing and future rules on access to documents and other relevant rules of Community law in the field of the environment." (69) At the first Meeting of the Parties, held in Chisinau, Moldova in April 1999, the European Commission informed the participants of the Community's intent to ratify the Convention. (70)
[*60] If the European Community proceeds to ratify the Aarhus Convention, it will formally recognize the right of every person in the Community, including both present and future generations, to live in an environment adequate to ensure his or her health and well-being. (71) The preamble to the Convention links this right to access to justice in environmental matters, stressing that "effective judicial mechanisms should be accessible to the public, including organizations, so that its legitimate interests are protected and the law is enforced." (72) The preambular language is buttressed by reference to international environmental instruments recognizing both the right to live in an environment permitting dignity and well-being, and the importance of public participation in environmental issues. (73)
Thus, the Convention expressly recognizes that the right to live in an environment adequate to health and well-being depends upon access to procedures to vindicate that right. If citizens are to take advantage of this right, at a minimum, they should have the ability to enforce environmental laws promulgated by all levels of government. Since the right is conferred on "any person," including one of a future generation, (74) imposition of a "closed class" requirement would prevent individuals and public organizations from challenging European Community actions that infringe upon the shared right through failure to comply with the provisions of Community environmental law. The Community's acceptance of the Convention's broad right to environmental health, together with its recognition that access to judicial procedures is necessary to exercise that environmental right, makes a strong case for the ECJ to reconsider its use of the "direct and individual concern" standing criteria in environmental matters. (75) If the ECJ fails to broaden [*61] the standing requirements of article 167, then NGOs could vindicate the environmental right declared by the Aarhus Convention when that right is threatened by the actions of Member States, but not when it is threatened by the failure of a Community institution to comply with Community law. (76) Such an incongruous result is inconsistent with the obligations placed upon all Parties to the Aarhus Convention.
III. Opportunities for NGO Participation in the World Trade Organization
A. The WTO Dispute Settlement Process
Until recently, the dispute settlement process of the WTO's General Agreement on Tariffs and Trade (GATT) (77) was relatively impenetrable [*62] for NGOs. Under the dispute settlement provisions of the 1994 General Agreement on Tariffs and Trade, Government Members have the sole right to initiate complaints (78) and intervene in proceedings. (79) Panels (80) and the Appellate Body (81) (AB) are obliged to consider only the submissions of governmental parties or interveners, (82) and there is no obligation for governments to release their full submissions to the public. (83) Hearings are conducted out of public view, and only parties to a suit and governmental interveners have the right to make oral submissions to a panel. (84)
This restrained, exclusive process serves the GATT well when dealing with technical issues concerning tariffs because it allows panels to render timely and diplomatic solutions. (85) However, with the successful reduction or elimination of most explicit tariffs on international trade, GATT institutions are increasingly focused on the Member Governments domestic policies, including environmental laws, that allegedly create barriers to free trade. Recent high profile trade and environment disputes, such as Tuna/Dolphin, (86) Shrimp/Turtle, (87) and Beef [*63] Hormones, (88) as well as the looming EU-U.S. dispute regarding trade in genetically modified organisms, (89) expose the lack of transparency and the perceived democratic deficit in the GATT/WTO dispute resolution process.
Corresponding with the increase in the number of trade and environment disputes coming before the GATT/WTO, the recent Uruguay Round amendments to the GATT give greater weight to panel and AB decisions. (90) For example, GATT rules formerly required that panel decisions be adopted by a consensus of the GATT Council in order to bind the parties. (91) The new rules of the Dispute Settlement Understanding (92) (DSU) make panel and AB decisions binding unless the Dispute Settlement Body (93) (DSB) decides by consensus (including the vote of the successful party) not to adopt the report. (94) As a practical matter, the rule change makes panel and AB rulings dispositive in every case. The new rule empowers panel "judges of international trade" (95) to rule that governments must amend or repeal trade-restrictive domestic laws or risk the imposition of trade sanctions.
Environmental NGOs have long argued for better access to the WTO dispute settlement process to enable them to voice their concerns regarding conflicts between environmental policy and trade liberalization norms. (96) Two main arguments are advanced to support greater NGO participation in the WTO dispute settlement process. First, allowing NGOs with environmental expertise to provide factual material and legal arguments to panels is likely to lead to better-informed decisions from [*64] panels dealing with trade and environment questions. (97) Second, NGO participation will enhance the legitimacy of the WTO by allowing the public to have a voice in the consideration of environmental policies with trade impacts. (98) The international community's growing use of the WTO as a forum for deciding environmental disputes, coupled with the WTO's influence on domestic environmental policy, have resulted in intensified NGO appeals for participation in the WTO dispute settlement process. The AB's recent ruling in the Shrimp/Turtle dispute (99) suggests that a new avenue for participation by NGOs may indeed be on the horizon.
B. New Avenues for NGO Participation in the WTO
1. The Appellate Body Ruling in the Shrimp/Turtle Dispute
In Shrimp/Turtle, a number of developing countries challenged a US regulation that prohibited shrimp imports from countries that failed to require turtle excluder devices (TEDs) on shrimp harvesting nets. (100) Following the wake of the furor over the Tuna/Dolphin disputes, the environmental NGO community was intensely interested in the dispute because of its significance to the ongoing development of international environmental law. (101) Accordingly, two groups of environmental NGOs submitted briefs directly to both the appointed Panel and the parties to the dispute. The World Wide Fund for Nature submitted one brief, while the Center for Marine Conservation and the Center for International Environmental Law jointly submitted another. (102)
The U.S. urged the Panel to avail itself of any relevant information in the two documents. (103) In contrast, the complainant states requested [*65] that the Panel not consider the briefs in its deliberation of the dispute. (104) The Panel noted that article 13 of the DSU granted it the power to seek and select the sources of information to be used in making its decisions. (105) The Panel held that it could not accept the NGO briefs because accepting non-solicited information would be incompatible with article 13 of the DSU. (106) Nevertheless, the Panel permitted the parties to incorporate the NGO briefs, or parts of the documents, in their own submissions. (107) The U.S. took advantage of this opportunity by designating Section III of the Center for Marine Conservation and the Center for International Environmental Law brief as an annex to its second submission to the Panel. (108)
On appeal to the AB, the U.S. challenged the Panel's interpretation of article 13, arguing that nothing in the DSU prevented the Panel from considering unsolicited briefs. (109) The AB first examined the question in terms of the legal rights of NGOs to have their submissions considered by a panel. The AB stressed that the WTO dispute settlement process is limited to the Members of the WTO. (110) Thus, only parties to a dispute or governmental interveners have a legal right to have their submissions considered by a panel. (111) Accordingly, a panel is legally obligated to consider only the submissions made by the parties and governmental interveners. (112) However, the absence of a legal obligation to consider the NGO submissions did not dispose of the matter. (113)
The AB next examined the scope of a panel's authority to review the NGO briefs under the DSU. The AB noted the comprehensive nature of a panel's authority under article 13 of the DSU to seek information and technical advice from "any individual or body" considered appropriate, or from "any relevant source." (114) Because of the panel's comprehensive authority, the AB held that panels have broad discretion to:
- Accept or reject, or make some other appropriate disposition of information or advice sought and received; [*66]
- Determine the need for the information and advice in a specific case;
- Ascertain the acceptability and relevancy of information or advice received; and
- Decide the weight, if any, to be ascribed to the information or advice. (115)
The AB further noted that article 12.1 of the DSU authorized panels "in effect to develop their own Working Procedures, after consultation with the parties to the dispute." (116) The AB emphasized that panel procedures should allow sufficient flexibility so as to ensure high-quality panel reports while not unduly delaying the panel process. (117) According to the AB, articles 12 and 13 of the DSU, taken together, afford a panel "ample and extensive authority to undertake and control the process by which it informs itself of both the relevant facts of the dispute and of the legal norms and principles applicable to such facts." (118) This broad authority remains subject to a panel's duty, pursuant to article 11 of the DSU, to decide cases based on an objective assessment of relevant facts and applicable law. (119)
Based on the panels' broad authority under the DSU, and the panels' mandate under article 11 in particular, the AB held that the Shrimp/Turtle Panel read the word "seek" too literally. (120) The AB overruled the Panel, holding that the Panel could accept unsolicited submissions:
In the present context, the 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. The fact that a panel may motu proprio have initiated the request for information does not, by itself, bind the panel to accept and consider the information which is actually submitted. The amplitude of the authority vested in panels to shape the processes of fact-finding and legal interpretation makes clear that a panel will not be deluged, as it were, with non-requested material, unless the panel [*67] allows itself to be so deluged. (121)
Although overruling the Panel's interpretation of article 13 of the DSU, the AB upheld the Panel's decision to accept the NGO submissions as part of the US brief. (122)
In deciding the US appeal, the AB itself had to decide whether to accept and consider three new NGO amicus briefs attached to the US submission, (123) as well as a revised brief submitted directly to the AB by the Center for International Environmental Law. (124) In a preliminary ruling, the AB accepted all the amicus briefs. However, the AB asked the U.S. to indicate the extent it agreed with, or adopted, the legal arguments in the NGO briefs attached to its submission. (125) The U.S. balked at fully adopting the NGO briefs, stating that it agreed with the legal arguments of the NGOs "to the extent those arguments concur with the U.S. arguments set out in our main submission." (126) Given the tentative and qualified manner in which the U.S. accepted the NGO briefs, the AB, while admitting the briefs, limited its analysis to those legal arguments advanced in the main US submission. (127)
2. Impact of the Appellate Body's Shrimp/Turtle Ruling on Future NGO Involvement with Disputes in the WTO
The AB's ruling in the Shrimp/Turtle dispute is significant for two reasons. First, it creates new legal avenues for NGO to influence WTO panels and the AB. Second, the increased external participation resulting from the ruling has the potential to reshape the WTO dispute settlement process.
a. New Legal Avenues for NGO Participation
The AB's decision creates two avenues by which an NGO brief can now come before a panel. First, the AB decision makes it clear that [*68] WTO Members may attach NGO briefs to their own submissions to a panel or to the AB. Mere attachment of a brief to a party's submission does not seem sufficient, however, to guarantee its consideration by a panel or the AB. Instead, the AB's ruling suggests that a panel or the AB is obligated to consider material presented in an attached brief only when the submitting party expressly adopts that material. Second, the AB's decision allows NGOs to submit briefs directly to a panel or the AB. (128) When a brief is directly submitted to a panel, the panel retains the discretion to accept or reject the brief. While it is clear that panels will exercise extensive discretionary authority in the process of preliminary selection and consideration of NGO briefs, this discretion is not completely unconstrained. A panel that acted arbitrarily in determining whether to consider or reject information in an NGO brief would likely breach the requirement of article 11 of the DSU that it make an objective assessment of the matter. (129) A finding of irrelevancy in relation to material submitted by an NGO could be construed as finding of law, and therefore be subject to review by the AB. (130)
Thus, panels receiving NGO briefs may no longer be able to dismiss them without consideration. At the very least, they are probably required to read NGO submissions in order to determine their relevance to the dispute. This process of review alone may have the beneficial effect of exposing panels to different factual information and legal arguments beyond those advanced by the parties. Another possibility is that the briefs may make a panel aware of deficiencies in the evidence presented by the parties, prompting the panel to seek additional expert advice. (131)
b. Consequences of the Shrimp/Turtle Ruling for Dispute Resolution Practice and Reform
The ability of disputants to attach an NGO brief to its submissions, coupled with the likelihood that a panel or the AB will rely more heavily upon [*69] briefs endorsed by a party, (132) will likely lead NGOs to lobby disputants to attach NGO amicus briefs to their submissions. NGOs may be expected to pressure parties to adopt expressly the factual information or legal arguments presented in their briefs in order to ensure that a panel or the AB will consider them. (133) James Cameron and Stephen Orava suggest that NGOs may also lobby a non-party Member Government to intervene in a dispute and to adopt the NGO's positions as part of its submission. (134)
Even more significant reforms to the dispute settlement process are likely to be generated by the AB's authorization of NGO submissions directly to panels. A number of commentators (135) have argued that by allowing direct submission of briefs to panels, the system could be overwhelmed by an influx of unsolicited material. (136) As a practical matter, however, panels are more likely to be favorably disposed towards briefs that consolidate the views of a number of NGOs, are concise, and raise novel arguments not advanced by the parties to the dispute. While observance of these practical matters may reduce the number and volume of briefs, the likelihood that panels in high profile disputes will receive numerous documents from a variety of non-State actors raises the question of whether the procedural route for such information should be formalized. The AB's ruling indicates that panels have broad authority to develop their Working Procedures in consultation with the parties to the dispute. Panels, therefore, might develop Working Procedures to govern the receipt of NGO submissions, the preliminary assessment process for amicus briefs, and procedures for confirming formal acceptance and distribution of submissions to all parties involved in the [*70] dispute. (137)
However, broader reforms of the DSU may be necessary to address issues raised by the AB's ruling. The AB's ruling in favor of direct submission of briefs by non-governmental actors is not expressly limited to submissions by NGOs. Many NGOs fear that wealthy business entities will use the new procedural rules regarding access to the WTO dispute settlement process more extensively than public interest groups. (138) NGOs have also been the target of criticism. Some critics suggest that many non-profit environmental groups fail to represent the views of the international public at large and that NGO involvement in disputes before the WTO will likely exacerbate the existing bias towards the environmental views and values of developed countries. (139)
These concerns suggest the need for multilaterally agreed-upon amendments to the DSU to determine which non-state actors are given access to panels and to establish a screening process for organizations that claim public interest status. (140) Additional reforms may be necessary to facilitate effective participation by NGOs, and possibly others, in the dispute settlement process. Suggested reforms include requiring parties to make their submissions public prior to the hearing, permitting submitters to be present at panel hearings, and allowing submitters to present brief oral arguments amplifying the positions set forth in their briefs or in answer to questions raised by panels. (141) Such reforms are feasible because two powerful WTO Members - the EU and the U.S. - support changes to the DSU to enhance the transparency of the dispute resolution process and to mandate panel review of amicus briefs. (142)
IV. Do NGOs Give the Public a Stronger Voice in the Protection of the Global Environment?
A. The Benefits of NGO Involvement in International Fora
The principal rationale for allowing greater NGO access to international tribunals engaged in environmental dispute resolution is to increase public participation in decision-making that affects the global environment. (143) Central to this rationale is the claim that NGOs better represent the public interest in global environmental protection than do states. (144) NGOs may protect the environment better than states for four principal reasons.
First, NGOs are able to conceptualize problems and solutions without borders. (145) Unlike states, which are primarily concerned with protecting their sovereign interests, NGOs are more likely to take a global approach to environmental problems, a crucial step when those problems have transboundary dimensions. (146) Not only are states restrained by territorial concerns, they may also be more reluctant to take action to enforce international environmental obligations because they lack the necessary resources, their own environmental record is not perfect, or they fear jeopardizing other strategic or economic relationships. (147)
Second, states rarely have the luxury of being able to focus on a single concern like environmentally-focused public interests groups can. (148) Many disputes raise a variety of other economic and social concerns that may lead states to overlook or downplay arguments concerning the environmental effects of a particular measure. (149) [*72] Moreover, in disputes before WTO panels, state representatives are frequently drawn from a country's trade department and may have little knowledge of, or interest in, the environmental aspects of the dispute. (150) In these situations, environmental NGOs can often help bring a tribunal's attention to environmental issues that states have neglected to address, either deliberately or out of ignorance. (151)
Third, NGOs, which commonly maintain relationships with individual citizens, are arguably more representative of public opinion on environmental issues than states balancing a variety of competing concerns. (152) Environmental NGOs with membership encompassing citizens in non-democratic countries, or countries which are not members of international organizations such as the WTO, may also be able to act as a voice for the voiceless. (153) Some interests that states tend to neglect in the domestic context, such as those of future generations, may find an effective voice through the efforts of NGOs. (154)
Fourth, NGOs are increasingly sophisticated international actors with access to a wide range of resources and expertise. (155) NGOs may possess better information than governments on environmental issues. In addition, NGOs often exercise strong political power in domestic matters and have the ability to undertake activities that governments cannot. (156)
B. The Drawbacks of NGO Involvement in International Fora
While environmental NGOs have the potential to make tremendous contributions to environmental decision making at the international level, legitimate concerns still exist about allowing NGOs unrestricted access to international environmental dispute resolution processes. Environmentally focused NGOs may not accurately balance the public interest in environmental protection against other concerns such as economic development. Moreover, allowing greater NGO access to environmental decision-making will privilege the ideas and interests of [*73] the Western constituencies NGOs generally represent at the expense of the interests of developing or newly industrialized countries. (157) In the WTO context, developing countries often bear the brunt of NGO-endorsed domestic environmental measures that create barriers to trade in goods produced by developing countries. (158) In the EU context, Eastern European countries pressing for membership in the Union have criticized NGOs for favoring the interests of Western European citizens. (159) Tensions have developed between grassroots NGOs and "professional" NGOs, with public distrust of the latter. (160)
Allowing greater NGO involvement in international dispute settlement may unfairly privilege environmental NGOs over other groups, such as business entities, that also have legitimate interests in the outcome of the disputes, particularly trade disputes. (161) Many environmental NGOs, especially in Western countries, already have significant influence on environmental law and policy-making at both the national and international level. (162) Arguably, NGOs do not need additional rights to enforce environmental laws, because their views are already adequately reflected in the law and policy-making process. (163)
If environmental NGOs are afforded greater rights of participation, perhaps the same rights should be afforded to all non-state actors, including corporate interests and business entities, in order to ensure that all have an equal voice in international law and policy-making. Full-scale participation in international environmental decision-making by myriad non-state actors would almost certainly overwhelm the institutional structures of bodies like the WTO and the ECJ, and is unlikely to lead to more effective representation of the public interest. On the other hand, if participatory rights are to be limited to "public interest" non-governmental actors, a practical issue arises as to how to identify which groups are "suitable" to participate in decision-making [*74] processes.
C. Suggestions for Sensible Regulations on NGO Involvement in International Fora
While concerns over the drawbacks of NGO involvement are legitimate, they do not pose insurmountable obstacles to greater participation of NGOs in international environmental dispute resolution. NGOs have much to offer, particularly through the provision of environmental expertise and by giving a voice to public concerns about environmental protection, if granted direct rights of participation in the ECJ, WTO, and other international tribunals. Experience with NGO participation in dispute resolution in other jurisdictions, for example in the United States Supreme Court, indicates that tribunals are well able to regulate NGO involvement and to utilize and weigh NGO input properly when resolving disputes. (164) Greater institutional constraints in the international setting may mean that tribunals do not have the resources to devote to screening individual applications and submissions by NGOs. However, such considerations do not dictate the exclusion of NGOs from the international environmental dispute resolution processes altogether. Rather, they suggest the need for development of a process of accrediting NGOs in the international environmental arena to ensure an empirical basis for determining their claimed representativeness and expertise.
The criteria established by the United Nations Economic and Social Council for determining which NGOs may hold consultative status with the organization provide a precedent for screening processes that could be used in other international fora. (165) The criteria include assessments of the NGO's structure, its public accountability, and its sources of funding. (166) In addition, the rules limit NGO involvement to those groups with expertise relevant to the work of the organization. (167) These kinds of broad criteria are sufficient to allow a wide range of groups access to international tribunals, while at the same time providing a measure of quality control. Even with an accreditation process for NGOs seeking direct participatory rights in international tribunals, concerns may still [*75] exist that only the wealthiest groups - large national or international Western-based NGOs - will have the resources to take advantage of these rights. Accordingly, international organizations and tribunals may find it necessary to provide resources and funding to some less-established NGOs in order to ensure fair representation of all eligible groups.
The ECJ and the WTO dispute settlement processes illustrate two fora at the international level where new avenues for greater NGO participation in environmental decision-making are evolving. The developments in these two major international tribunals may stimulate similar reforms in other bodies dealing with the resolution of international environmental disputes. (168) Indeed, the Aarhus Convention requires parties to "promote the application of the principles of [the] Convention in international environmental decision-making processes and within the framework of international organizations in matters relating to the environment." (169)
In the ECJ, the perceived "democratic deficit" created by its ruling in the Greenpeace case may be remedied by implementing the Aarhus Convention's access to justice provisions. The Convention may give NGOs standing to bring their own suits in the ECJ to challenge acts of Community institutions that allegedly violate Community environmental law. If the European Community proceeds to ratify the Convention, the ECJ may need to reconsider its interpretation of the "direct and individual concern" criteria of article 173 to allow the public and NGOs to vindicate the environmental right expressed in the Convention.
In the WTO, NGOs have been granted the ability to voice their concerns, but they have not been guaranteed that their voice will be heard. Nevertheless, the AB ruling in the Shrimp/Turtle dispute allows for submission and consideration of NGO amicus briefs to panels and the AB in some cases. At the very least, this innovation should lead to better-informed panel decisions in the areas where trade and environment overlap. The ruling may also spur more far-reaching reforms of the [*76] WTO dispute settlement process that increase its transparency and accessibility for non-state actors.
Legitimate concerns remain over allowing NGOs unrestricted access to international environmental dispute resolution processes. These concerns can be addressed by instituting procedural screens that limit NGO involvement in international disputes to those NGOs that have particular expertise in relevant areas and adequately represent the public. Ultimately, enhanced NGO participation in international tribunals should ensure that, in the environmental area, where States are often inadequate representatives of the public interest in environmental protection, international law develops in a way that will protect and preserve the environment for the benefit of current and future generations.
(5) See Rio Declaration on Environment and Development, United Nations Conference on Environment and Development, U.N. Doc. A/CONF.151/6/Rev.1, princ. 10 (1992), reprinted in 31 I.L.M. 874 (1992), [hereinafter Rio Declaration]. Principle 10 commences with the statement "Environmental issues are best handled with participation of all concerned citizens, at the relevant level."
(6) For a comprehensive assessment of the increased participatory role of NGOs in international environmental law see generally Kal Raustiala, The "Participatory Revolution" in International Environmental Law, 21 Harv. Envtl. L. Rev. 537 (1997).
(9) See Jeremy Wates, Environment for Europe, NGO Keynote Address at Fourth Ministerial Conference of United Nations Economic Commission for Europe (June 25, 1998) (transcript available at www.mem.dk/aarhus-conference/statements/ngo.htm).
(12) See Treaty Establishing the European Community, March 25, 1957, 298 U.N.T.S. 11, art. 169 (226) [hereinafter EC Treaty]. The EC Treaty governs actions by the Commission. Article 170 (227) of the EC Treaty governs member state actions. Note: Article references in italics are to the corresponding article in the consolidated version of the treaty, incorporating the Treaty of Amsterdam Amendments. See 1997 O.J. (C340) 173-308.
(17) Case 25/62, Plaumann v. Commission, 1963 E.C.R. 95, 107. See also Case 231/82, Spijker v. Commission, 1983 E.C.R. 2559; Case 97/85, Deutsche Lebensmittelwerke v. Commission, 1987 E.C.R. 2265; Case C-198/91, Cook v. Commission, 1993 E.C.R. I-2487; Case C-225/92, Matra v. Commission, 1993 E.C.R. I-3203; Case T-2/93, Air France v. Commission, 1994 E.C.R. II-323; Case T-465/93, Consorzio Gruppo di Azione Locale "Murgia Messapica" v. Commission, 1994 E.C.R. II-361.
(18) The requirement of a "closed class" of affected individuals is similar to the standing requirement under citizen suit provisions used by private parties to enforce domestic environmental legislation in the United States.
(20) The case was brought by a number of individuals claiming to be affected by the decision of the European Commission, two local environmental associations based in the Canary Islands (Tagoror Ecologista Alternativo (TEA) and Comision Canaria Contra la Contaminacion (CIC)), and Greenpeace Spain. The individual applicants sought to justify their claims on a number of bases, including residence in the area of the works in question, ownership of real estate in the area, the carrying on of occupational activity within the area and alleged negative impacts on health, tourism, fishing, farming, education of the young, local flora and fauna, and occupations connected with windsurfing in the islands. The ECJ upheld the decision of the Court of First Instance denying the individual applicants standing on the basis that "where ... the specific situation of the applicant was not taken into consideration in the adoption of the act, which concerns him in a general and abstract fashion and, in fact, like any other person in the same situation, the applicant is not individually concerned by the act." Id. at para. 28.
(22) See Council Directive 85/337/EEC, 1985 O.J. (L175) 40, on the assessment of the effects of certain public and private projects on the environment. The Directive requires Member States to adopt measures to ensure that, prior to giving consent to certain projects likely to have significant effects on the environment, an environmental impact assessment is carried out. The applicants alleged that no environmental impact assessment been undertaken by the Spanish authority responsible for building the two power stations, prior to the Commission's decision to disburse the funds to Spain. See Greenpeace Case, supra note 19.
(29)A number of Member States have standing requirements that may be satisfied by demonstration of a sufficient interest. The appellants also referred to the rule in the United States, where the Supreme Court held that the shared nature of environmental interests does not make them less deserving of legal protection through the judicial process. See Sierra Club v. Morton, 405 U.S. 727 (1972).
(30) The appellants relied on the judgments of the ECJ in Case 240/83, Procureur de la Republique v. Association de Defense des Br
leurs d'Huiles Usagees, 1985 E.C.R. 531, and Case C-131/88, Commission v. Denmark, 1988 E.C.R. 4607, which declared environmental protection to be one of the Community's essential objectives; Case C-361/88, Commission v. Germany, 1991 E.C.R. I-825 and Case C-361/88, Commission v. Germany, 1991 E.C.R. I-2567, which found that Community environmental legislation can create rights and obligations for individuals, and Case C-431/92, Commission v. Germany, 1995 E.C.R. I-2189, which holds that Directive 85/337 creates individual rights of participation in the environmental impact assessment procedure.
(31) Namely, the Rio Declaration, supra note 5, at princ. 10; Agenda 21, United Nations Conference on Environment and Development (UNCED), U.N. Doc. A/CONF. 151/26 (vols. I, II, & III) (1992); the Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment, June 21, 1993, 32 I.L.M. 1228 (1993); the World Bank Inspection Panel System, World Bank, Resolution No. 93-10, Resolution No. IDA93-6, Sept. 22, 1993, para. 12.
(37) Concerns of this nature were raised in written questions to the Commission. See Written Question E-2688/98 by Kenneth Collins (PSE) to the Commission, 1999 O.J. (C96) 123, 175; Written Question E-2600/98 by Patricia McKenna to the Commission, 1999 O.J. (C96) 123, 174. The Commission responded that no "legal vacuum" was created by denying members of the general public and NGOs the ability to invoke Article 173 in environmental matters because Member States and directly and individually concerned individuals were still able to bring proceedings. See Joint Answer to Written Questions E-2607/98 and E-2688/98 given by Mr. Santer on behalf of the Commission, 1999 O.J. (C96) 123.
(38) Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, June 25, 1998, U.N. Doc.ECE/CEP/43, reprinted in 38 I.L.M. 517 (1999) [hereinafter Aarhus Convention].
(39) The United Nations Economic Commission for Europe is one of the regional commissions established by the United Nations Economic and Social Council to encourage greater economic cooperation among European countries. Its foci include economic analysis, environment and human settlements, statistics, sustainable energy, trade, industry and enterprise development, timber, and transport.
(40) Austria, Belgium, Denmark, Finland, France, Greece, Ireland, Italy, Luxembourg, Netherlands, Portugal, Spain, Sweden, the United Kingdom, and the European Community all signed the Aarhus Convention on June 25, 1998. The remaining EU Member, Germany, became a signatory to the Convention on December 21, 1998.
(41) To date, four ratifications (Moldova, Georgia, Romania, and Ukraine), two approvals (Belarus and Denmark), and three accessions (Macedonia, Azerbaijan, and Turkmenistan) to the Convention have been received. See Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (visited Jan. 8, 2001) http://www.unece.org/env/pp.
(42) Declarations of environmental rights have been made in a variety of "soft law" instruments such as the Stockholm Declaration on the Human Environment, princ. 1, 11 I.L.M. 1416 (1972) [hereinafter Stockholm Declaration]; G.A. Res. 45/94, U.N. GAOR, 68th Plen. Sess., U.N. Doc. A/RES/45/94 (1990); and the European Charter on Environment and Health, First European Conference on Environment and Health, Dec. 7-8, 1989, ICP-RUD 113-1. Several regional instruments recognize the principle as well. See, e.g., African Charter on Human and Peoples' Rights, art. 24 (21 I.L.M. 59 (1982)), and the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, Nov. 16, 1999, art. 11(2), 28 I.L.M. 156 (1989).
(45) See Aarhus Convention, supra note 38, at art. 2(d). The EU itself also clearly accepts that this will be the effect of the Convention. See SCADplus: Environment - General Provisions - Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, available at http://www.europa.eu.int/scadplus/leg/en/lvb/128056.htm.
(49) The remedy guaranteed by article 9(1) in the case of refused or ignored information requests may be of potential assistance to NGOs seeking to enforce Community environmental laws. The right of access to information, and hence the right to review, is conferred upon any member of the "public," which is defined to include NGOs, without the need to prove any interest. See id. at art 9(2). Taking the Greenpeace case, supra note 19, as an example, the provisions of article 9(1) would require the Community to provide a mechanism for review of the decision of the Director-General of DG XVI of the Commission to refuse access to information concerning the alleged disbursement of funds for the construction of the power stations.
(52) Article 2(5) defines "the public concerned," which includes "non-governmental organizations promoting environmental protection and meeting any requirements under national law." Id. at art. 2(5). It is not clear what national legal requirements are intended by this paragraph, though it may refer to nationally prescribed requirements for the formation of such organizations.
(54) Article 6 requires State Parties to allow public participation in decisions regarding specific activities listed in annex I to the Convention. These activities include a wide range of potentially environmentally harmful industrial and mining facilities, such as thermal and nuclear power stations, metal processing installations, chemical installations, and waste management facilities. See id. at art. 6.
(56) Id. at art. 6(1)(a). Annex I largely mirrors the list of activities subjected to environmental impact assessment requirements under the Convention on Environmental Impact Assessment in a Transboundary Context, Feb. 25, 1991, 30 I.L.M. 800, 802 (1991), combined with a list of activities concerning integrated pollution prevention and control subject to Council Directive 96/61/EC, 1996 O.J. (L 257) 26. The public participation provisions of article 6 also apply "to the extent feasible and appropriate" to decisions on whether to permit the deliberate release of genetically modified organisms into the environment. See Aarhus Convention, supra note 38, at art. 6(11).
(58) See id. at arts. 6(2), 6(5) - 6(9). These include requirements that the public be informed of the application, the responsible decision-making authority, and the envisaged procedure, as well as that the public have access to the relevant decision-making information, submit comments on the application, and be informed promptly of the final decision.
(60) For example, while the EU Integrated Pollution Prevention and Control Directive requires certain considerations to be taken into account when permitting specified polluting industrial facilities, places the permitting obligation on Member States. See Council Directive 96/61/EC, supra note 56.
(61) Note that in the Greenpeace case, the ECJ viewed the contested decision (whether to provide Community financing for the proposed power stations) as only indirectly affecting the rights claimed by the applicants. See Greenpeace case, supra note 19, paras. 30-31.
(62) See generally Jerzy Jendroska, U.N.E.C.E. Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters: Towards More Effective Public Involvement in Monitoring Compliance and Enforcement in Europe, 13 Nat'l Envtl. Enforcement J. 32 (1998). The author served as the Vice-Chair of the Working Group negotiating the Convention.
(64) See id. at art. 2(4). This Article provides that "the public" means one or more natural or legal persons, and, in accordance with national legislation or practice, their associations, organizations or groups. Id.
(68) Declaration of the European Community upon Signature of the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, June 25, 1998.
(70) See Report of the First Meeting, U.N. Economic Commission for Europe, Committee on Environmental Policy, U.N. Doc. CEP/WG.5/1999/2 (1999). The European Community currently aims to ratify the Convention in 2002 or 2003. See Report of the Second Meeting, U.N. Economic Commission for Europe, Committee on Environmental Policy, at para. 11, U.N. Doc. CEP/WG.5/2000/2 (2000).
(72) Id. at preamble (emphasis added). The preamble also recognizes "the importance of the respective roles that individual citizens, non-governmental organizations and the private sector can play in environmental protection." Id.
(73) Id. (citing Stockholm Declaration, supra note 42, princ. 1; Rio Declaration, supra note 5, princ. 10; World Charter for Nature, U.N. GAOR 48th Plen. Sess., U.N. Doc A/RES/37/7 (1982); G.A. Res. 45/94, supra note 42; European Charter on Environment and Health, supra note 42.
(74) The environmental rights of future generations are completely abrogated by a "closed class" standing requirement, as these individuals are unlikely to be identified specifically in any decision taken by a Community institution and depend upon members of the current generation to advance their interests.
(75) Even if the ECJ declines to hold that the Aarhus Convention guarantees NGOs the broader standing needed to challenge Community decisions affecting the environment, the Convention nevertheless may prompt legislative action at the Community level to cure the perceived "democratic deficit" in the EU decision-making process. EU consumer protection reforms that provide standing to consumer groups seeking to enforce EU law provide a model for similar legislative action for the benefit of environmental NGOs. See Council Directive 98/27/EC, 1998 O.J. (L 166) 51, of the European Parliament and of the Council of May 19, 1998 on injunctions for the protection of consumers' interests. While the Directive does not cover actions directly against Community institutions, it requires Member States to recognize the right of consumer groups to enforce EU consumer Directives within the Member States' legal systems. Where an infringement originates in one Member State but affects consumers in a second, the first Member State must take measures to ensure that qualifying consumer groups from the latter Member State may bring infringement proceedings before the courts or administrative authorities of the former State. See id.
(76) A point made by Jan Peeters, the Belgian Secretary of State for Security, Social Integration and Environment in his statement at the NGO Session of the Aarhus Conference. See Jan Peeters, Secretary of State for Security, Social Integration and Environment of the Kingdom of Belgium, Strengthening Participatory Democracy for Sustainable Development: The Role of Citizens in Law Enforcement, NGO Session of the 4th Ministerial Conference Environment for Europe, June 24, 1998, available at http://www.mem.dk/aarhus-conference/statements/peeters2.htm. The NGO Session was a half-day session included in the Aarhus Conference program to permit a dialogue between NGOs and Ministers on the subject of public participation. The session was divided into three main themes: (1) The Democratic Deficit - Identifying the Problems, (2) Improving Environmental Democracy - Finding Solutions, and (3) The Public Participation Convention - Opportunities and Challenges. It gave both Ministers and NGOs an opportunity to share their views, express their concerns, and look into the future activities related to the ratification and implementation of the Aarhus Convention.
(77) See General Agreement on Tariffs and Trade: Multilateral Trade Negotiations, Final Act Embodying the Results of the Uruguay Round of Trade Negotiations, reprinted at 33 I.L.M. 1 (1994) [hereinafter Final Act].
(78) See Understanding on Rules and Procedures Governing the Settlement of Disputes, April 15, 1994, art. 6, in Legal Instruments - Results of the Uruguay Round vol. 1, reprinted in 33 I.L.M. 112 (1994) [hereinafter DSU].
(80) Panels are established on an ad hoc basis at the request of the parties to a dispute concerning the interpretation of one of the WTO Agreements. They are generally composed of three panelists who are nominated by the Secretariat of the WTO. The panelists act in their private capacity and may be government trade officials or academic experts in international trade law.
(81) The Appellate Body was created by article 17 of the DSU. The Appellate Body hears appeals from panel cases. Its authority is limited to issues of law covered in panel reports and legal interpretations developed by the panel. See DSU, supra note 78, at art. 17(6). Its working procedures are reproduced at 35 I.L.M. 495 (1996).
(85) See Philip M. Nichols, Participation of Nongovernmental Parties in the World Trade Organization: Extension of Standing in World Trade Organization Disputes to Nongovernment Parties, 17 U. Pa. J. Int'l Econ. L. 295, 319 (1996).
(86) GATT Dispute Settlement Panel Report on U.S. Restrictions on Imports of Tuna, 30 I.L.M. 1594 (1991); GATT Dispute Settlement Panel Report on U.S. Restrictions on Imports of Tuna, 33 I.L.M. 839 (1994) [hereinafter, collectively referred to as Tuna/Dolphin disputes].
(89) See EU/US: Washington Recoils from Gene Food Fight, Eur. Rep., July 28, 1999, available in 1999 WL 8306732; America vs. Europe: The Western Allies are also Rivals, Foreign Rep., Sept. 9, 1999, available in 1999 WL 8943392.
(93) The DSB, consisting of the GATT Contracting Parties, is the body responsible for administering the dispute settlement rules and procedures. It has the authority to establish panels, adopt panel and Appellate Body reports, maintain surveillance of implementation of rulings and recommendations, and authorize suspension of concessions and other obligations under the WTO agreements. See id. at 114, art. 2.1.
(101) See Steve Charnovitz, Dolphins and Tuna: An Analysis of the Second GATT Panel Report, 24 Envtl. L. Rep. 10567 (1994); Stanley Spracker & David Lundsgaard, Dolphins and Tuna: Renewed Attention on the Future of Free Trade and Protection of the Environment, 18 Colum. J. Envtl. L. 385, 386 (1993); D.J. Ross, Making GATT Dolphin-Safe: Trade and the Environment, 2 Duke J. Comp. & Int'l L. 345, 352 (1992).
(123) The three amicus briefs attached to the US submission were prepared by (1) The Earth Island Institute, the Humane Society of the U.S., and the Sierra Club; (2) the Center for International Environmental Law, the Center for Marine Conservation, the Environment Foundation Limited, the Mangrove Action Project, the Philippine Ecological Network, and Red Nacional de Accion Ecologica and Sobrevivencia; and (3) the World Wide Fund for Nature and the Foundation for International Environmental Law and Development. See Shrimp/Turtle, supra note 87, at 28, para. 79.
(128) The AB is less clear concerning the question whether amicus briefs could be received at the AB level if not attached to a party's submission. In practice, the AB in the Shrimp/Turtle dispute did receive and accept an unattached brief provided by the Center for International Environmental Law. See id. at 28-29, para. 81.
(129) See Michael J. Trebilcock & Robert Howse, The Regulation of International Trade 66 (2nd ed. 1999); Gabrielle Marceau & Peter Pedersen, Is the WTO Open and Transparent?, 33 J. World Trade 5, 37 (1999).
(130) See Beef Hormones, supra note 88, at 53, para. 143 (AB found that the Panel erred in law in making a finding of "non-relevancy" in respect of certain evidence submitted by the European Communities).
(133) This may be a difficult task for NGOs if the briefs contain legal arguments which are contrary to those advanced in the party's main submission. See Benjamin Simmons, In Search of Balance: An Analysis of the WTO Shrimp/Turtle Appellate Body Report, 24 Colum. J. Envtl. L. 413, 431 (1999).
(136) With respect to NGOs, Esty rebuts this concern pointing out that the number of NGOs that are tracking trade and environment issues is quite limited. However, the same may not be true of a variety of other interested non-State actors who may also wish to make direct submissions to panels or the AB. See Daniel C. Esty, Linkages and Governance: NGOs at the World Trade Organization, 19 U. Pa. J. Int'l Econ. L. 709, 726 (1998).
(138) See Cameron & Orava, supra note 134, at B6. However, as the authors point out, having private entities speak for themselves rather than having States act as their mouthpiece may give States greater freedom to pursue other public policy objectives. See id.
(140) If direct participation by NGOs produces too much incoherence, another alternative is for the WTO to ask intergovernmental environmental organizations, such as the United Nations Environment Program or the IUCN, to name an "environmental advocate" to speak for the environment in WTO disputes raising environmental issues. See Participation of Nongovernmental Organizations in the World Trade Organization, supra note 10, at 356.
(141) See Trebilcock & Howse, supra note 129; David A. Wirth, Public Participation in International Processes: Environmental Case Studies at the National and International Levels, 7 Colo. J. Int'l Envtl. L. & Pol'y 1, 12 (1996).
(142) See Kim Van der Borght, The Review of the WTO Understanding on Dispute Settlement: Some Reflections on the Current Debate, 14 Am. U. Int'l L. Rev. 1223, 1225 (1999). In 1994 the WTO Membership agreed to a full review of the dispute settlement rules and procedures by the Ministerial Conference, which were to be completed by the end of 1998. The review process was extended but is currently "in tatters" with the majority of Members firmly opposing the transparency reforms advanced by the US and the EU. DSU Review in Tatters, 3 Bridges Weekly Trade News Digest (Sep. 27, 1999) http://ictsd.org/html/story5.27-09-99.htm.
(156) See generally id. Raustiala provides no examples but such activities would include such things as the ability to do public opinion surveys, undertake their own research, seek environmental expertise, conduct public campaigns, mobilize political opposition, and generate funding for a particular cause.
(158) The measures at issue in the Shrimp/Turtle dispute, for example, were extended internationally by the U.S. only after rulings by the U.S. Court of International Trade on challenges initiated by domestic environmental NGOs. See Earth Island Institute v. Warren Christopher, 922 F. Supp. 616 (Ct. Int'l Trade 1996).
(163) See Esty, supra note 136, at 735. But see Participation of Nongovernmental Organizations in the World Trade Organization, supra note 10, at 352 (noting that this argument does not apply to international NGOs).
(164) See generally Susan Hedman, Friends of the Earth and Friends of the Court: Assessing the Impact of Interest Group Amici Curiae in Environmental Cases Decided by the Supreme Court, 10 Va. Envtl. L.J. 187 (1991).
(168) For example, the International Court of Justice which, like the WTO dispute settlement process, has been relatively impenetrable for NGOs. For a review of the participation of NGOs in international tribunals. See Dinah Shelton, The Participation of Nongovernmental Organizations in International Judicial Proceedings, 88 Am. J. Int'l L. 611, 612 (1994).
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