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Max Planck Encyclopedia of International Procedural Law [MPEiPro]

Amicus Curiae: African Court on Human and Peoples’ Rights (ACtHPR), African Commission on Human and Peoples’ Rights (ACommHPR)

Astrid Wiik

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 17 February 2020

Amicus curiae — Advisory opinions — Human rights

Published under the direction of Hélène Ruiz Fabri, with the support of the Department of International Law and Dispute Resolution, under the auspices of the Max Planck Institute Luxembourg for Procedural Law.

A.  Characteristics and Functions

Amicus curiae (International Courts and Tribunals, Amicus Curiae), Latin for ‘friend of the court’, is a procedural instrument common before most international courts, tribunals, and several quasi-judicial bodies and commissions, including the African Court on Human and Peoples’ Rights (ACtHPR) (‘ACtHPR’ or ‘Court’) and the African Commission on Human and Peoples’ Rights (ACommHPR).

Neither of the procedural regimes of the ACtHPR or the ACommHPR defines amicus curiae expressly, reflecting a general approach among international courts and tribunals, with the exception of the Inter-American Court of Human Rights (IACtHR) (Art 2 (3) Rules of Procedure of the IACtHR). Nonetheless, the existing rules and practices shed light on the instrument’s characteristics and functions. Before the ACtHPR, amicus curiae is a procedural instrument at the court’s full discretion that allows an individual or organization to submit solicited or unsolicited information and/or legal opinions on matters of international law to the court (Practice Directions 42, 45). While amici curiae are not required to be neutral bystanders, the ACtHPR has disregarded partisan views (Umuhoza v Rwanda, 2016, para 38). This last characteristic distinguishes the amicus curiae practice of the ACtHPR and the ACommHPR, whose amicus practice is dominated by openly partisan briefs.

The main function of amici curiae in international dispute settlement is to convey information to the deciding body to assist it in rendering a fully informed decision of high legal quality (Mohamed, 1999, 213). Amicus briefs often convey information and perspectives the adjudicating institution may otherwise not access. Moreover, amicus curiae has been used to represent a public or private, often underrepresented, interest. Finally, it is considered able to alleviate systemic deficiencies such as fragmentation of international law or lack of transparency or democratic legitimacy (Wiik, 2018, 132–57).

The ACtHPR and ACommHPR significantly benefit from amici curiae given their limited research capacities (Viljoen and Abebe, 2014, 40–41). The ACtHPR has embraced this notion: ‘[t]he role of amicus curiae in proceedings is to provide the Court with arguments or views which may serve to assist the Court in its consideration of legal issues under consideration by the Court’ (Umuhoza v Rwanda, para 38). In this respect, there is a potential overlap between amici curiae seeking to transmit factual or contextual information and evidentiary instruments, including witnesses, experts, and the mechanism in Rule 29 (3) Rules of Court, which allows the Court to hear commissioners involved in the case before the ACommHPR or the individual or non-governmental organization (‘NGO’; Non-Governmental Organizations) that initiated the communication before the ACommHPR. While there is a clear regulatory distinction between witnesses and experts, on the one hand, and amici curiae on the other hand (Rules 99 and 100 Rules of Procedure of the African Commission on Human and Peoples’ Rights (‘Rules of Procedure’)), both the ACtHPR and the ACommHPR have anchored the amicus curiae in their broad investigative powers.

There is a functional overlap between amicus curiae participation and other forms of non-party participation before the ACtHPR, particularly intervention in proceedings by State Parties (Art 5 (2) Protocol to the African Charter on Human and Peoples‘Rights on the Establishment of an African Court on Human and Peoples’ Rights (‘Protocol’); International Courts and Tribunals, Intervention in Proceedings), victim participation (Rule 29 (3) (c) Rules of Court), and participation by the State Party whose citizen is an applicant (Rule 35 (2) (b) Rules of Court). It is unclear how the ACtHPR delineates these instruments. The Court has not yet received briefs seeking to defend a private or commercial interest, which occurs regularly before the European Court of Human Rights (ECtHR) (Amicus curiae: European Court of Human Rights (ECtHR)) but is unusual in other international courts and tribunals (Wiik, 2018, 140–44). The ACommHPR takes a non-formalistic approach to non-party participation establishing as a ‘General Principle’ in Rule 62 Rules of Procedure that the Commission ‘may invite any State Party, institution, organisation or person capable of enlightening it to participate in its sessions without voting rights’.

Because of its functional fluidity, the main difference between amicus curiae and other forms of participation is formal. As opposed to other forms of non-participation, no participatory rights are attached to the status of amicus curiae, such as the right to make written and oral submissions or to access case documents.

B.  Amicus curiae before the African Court on Human and Peoples’ Rights

1.  Contentious Proceedings

(a)  Legal Framework

Only Practice Directions 42–46 address amicus curiae participation by establishing abstract guidelines for participation and the amici’s relationship to the Court and the parties. The Practice Directions stipulate:

Request to act as amicus curiae

  1. 42.  An individual or organization that wishes to act as amicus curiae shall submit a request to the Court, specifying the contribution they would like to make with regard to the matter.

  2. 43.  The Court will examine the request and determine within a reasonable time from the date of receipt of the request, whether or not to accept the request to act as amicus curiae.

  3. 44.  If the Court grants the request to act as amicus curiae, the person or organization making the request shall be notified by the Registrar and invited to make submissions, together with any annexes, at any point during the proceedings. The Application, together with any subsequent pleadings relating to the matter for which the request for amicus curiae has been made, shall be put at the disposal of the person or organization.

  4. 45.  The Court on its own motion may invite an individual or organization to act as amicus curiae in a particular matter pending before it.

  5. 46.  The amicus curiae brief and its annexes submitted to the Court on a matter shall be immediately transmitted to all the parties, for their information.

As self-given rules, the Practice Directions presuppose the Court’s authority to admit amici curiae. Some writers anchor this authority in the Court’s evidentiary rules (Viljoen and Abebe, 35). Article 26 (2) Protocol stipulates that the Court ‘may receive written and oral evidence, including expert testimony’. Rule 45 Rules of Court elaborates Art 26. It reads in part:

  1. 1.  The Court may, of its own accord, or at the request of a party, or the representatives of the Commission, where applicable, obtain any evidence which in its opinion may provide clarification of the facts of a case. The Court may, inter alia, decide to hear as a witness or expert or in any other capacity any person whose evidence, assertions or statements it deems likely to assist it in carrying out its task.

  2. 2.  The Court may ask any person or institution of its choice to obtain information, express an opinion or submit a report to it on any specific point.

The expansion to other persons expressly allows for participants other than experts and witnesses, without further specifying who they may be. In recent cases the ACtHPR has cited Rule 45 (2) Rules of Court as a legal basis when soliciting amicus curiae briefs (Actions pour la protection des droits de l’homme (APDH) v Cote d’Ivoire, 2016, para 28; Anudo v Tanzania, 2018, para 24; see also Naldi, 2014, 381; Viljoen and Abebe, 2014, 35–36). This approach risks blurring the line between evidence and opinion. Unlike evidentiary instruments, amicus curiae is not primarily an instrument to establish the facts. Amicus submissions before the ACtHPR and other international courts and tribunals typically consist of legal opinions and summaries of relevant case law. The evidentiary rules are not designed for legal or interpretive submissions (Ronen and Naggan, 2014, 822). Further, the initial draft of Article 26 (2) Protocol explicitly permitted ‘other representations’ in addition to written and oral evidence, but it was deleted from the final version adding to the argument that Article 26 (2) was consciously limited to exclude non-evidentiary submissions.

10  Rather, the authority to receive amici curiae can be regarded as implied in the ACtHPR’s authority to devise its own rules of procedure in Articles 8 and 33 Protocol or, for legal submissions, the principle of jura novit curia. The latter implies that the court examines the case under all relevant legal perspectives and allows it to inform itself on the relevant law from available sources (Wolfrum and Möldner, 2013, paras 15–17). Alternatively, competence to admit amici curiae can be regarded as inherent in the judicial function. Numerous international courts and tribunals have relied on inherent powers to supplement gaps in their procedural rules in the interest of the proper administration of proceedings (Brown, 2007, 56, 67). The IACtHR, the WTO Appellate Body and panels, and investor-State tribunals have invoked inherent powers to admit amici curiae (Wiik, 2018, 226).

(b)  Practice

11  Since deciding its first case in 2009, the ACtHPR has admitted amici in six of its 51 finalized cases. In four cases, participation was unsolicited (Umuhoza v Rwanda; African Commission on Human and Peoples’ Rights v Libya, 2013; Konaté v Burkina Faso, 2014; Guehi v Tanzania, 2018); in three cases, solicited (Actions pour la protection des droits de l’homme (APDH) v Cote d’Ivoire; Anudo v Tanzania; Guehi v Tanzania).

12  Amicus curiae submissions may be made by an ‘individual or organization’ (Practice Directions 42, 45). The Court’s legal framework does not define the term ‘organization’. It is sufficiently broad to encompass international organizations and NGOs, an understanding that is confirmed by the context. The term is mentioned only in relation to the rules on jurisdiction, listing African Intergovernmental Organizations and NGOs fulfilling the requirements of Rule 34 (6) Protocol as having access to the court (Art 5 Protocol; Rule 33 Rules of Court). Despite its limited practice, the Court has admitted and solicited requests from a broad range of organizations as amici curiae. These include NGOs like the Pan African Lawyers’ Union (African Commission on Human and Peoples’ Rights v Libya, para 4) and African and international human rights groups (Konaté v Burkina Faso, para 20; Anudo v Tanzania, para 24), international organizations like the African Union Commission and the ACommHPR (Anudo v Tanzania, para 20; Actions pour la protection des droits de l’homme (APDH) v Cote d’Ivoire, para 28; Guehi v Tanzania, para 17), as well as academic and research institutions like the African Institute for International Law (Actions pour la protection des droits de l’homme (APDH) v Cote d’Ivoire, para 28), and individuals (Guehi v Tanzania, para 14). Like the IACtHR, the ACtHPR has admitted as amici human rights entities of the respondent State (Umuhoza v Rwanda, para 38).

13  Unsolicited submissions are subject to a request for leave procedure (Practice Direction 42). Unlike most other international courts and tribunals employing such procedure, the Practice Directions contain no formal guidelines for requests.

14  The sole, substantive requirement for requests for leave is that the applicant shall ‘specify … the contribution they would like to make with regard to the matter’ (Practice Direction 42). As a minimum, this requires that submissions are relevant to the case at issue and fall within the scope of the court’s jurisdiction for it to be able to consider them—a rule that is mirrored for solicited amicus submission in Practice Direction 45. The term covers legal and fact submissions and the ACtHPR has admitted both in practice. In Konaté v Burkina Faso, the Court accepted a mixed legal-fact submission arguing that national defamation laws disproportionately restricted the freedom of expression as enshrined in international human rights law (paras 141–44). In other cases, the Court has accepted submissions on procedural and substantive international law topics.

15  The ACtHPR has full discretion over its decision to admit amici curiae (Practice Direction 43). However, the Court must weigh the potential benefits of amicus participation with possible negative effects, particularly on the parties’ due process rights. The Court’s case law rarely contains information regarding the admission decision. If at all, it indicates a generous approach, as exemplified in the admission of an organ of the respondent as an amicus curiae over objections of impartiality by the applicant (Umuhoza v Rwanda, para 38). The ACtHPR has stressed that this broad discretion also extends to its consideration of the brief (Umuhoza v Rwanda, para 38).

16  Successful applicants are notified by the Registrar and furnished with the application and case pleadings ‘relevant to the matter for which the request for amicus curiae has been made’ (Practice Direction 44). The Practice Directions do not contain formal or substantive limitations regarding the length, form, or language of submissions. This gives the Court flexibility to adapt them to the particular case. Notable is the permission to submit briefs at any point during the proceedings and to add, on a voluntary basis, annexes to it (Practice Direction 44). Accordingly, the Court has allowed amicus briefs at the written and oral stages of proceedings. Oral participation occurred, for instance, in Konaté v Burkina Faso.

17  The parties assume an ancillary role in regard of the participation of amici curiae. According to Practice Direction 46, they are informed of briefs and receive copies (Anudo v Tanzania, para 25). The practice directions do not extend to them a right to veto participation of amici curiae. An objection against the admission of an amicus was rejected in at least one case (Umuhoza v Rwanda, para 38). This corresponds with the practices of the IACtHR (Amicus curiae: Inter-American Court of Human Rights (IACtHR)) and deviates from that of investor-State tribunals and the WTO panels and Appellate Body (Wiik, 2018, 329, 494, 498; Amicus curiae: Dispute Settlement of the World Trade Organization (WTO); Amicus curiae: Investment Arbitration). Due process requires that the parties must at least be informed of the parts of an amicus submission the court considers relevant for its decision and that they are given sufficient time to respond to it.

2.  Advisory Opinion Proceedings

18  Rule 70 Rules of Court stipulates:

  1. 1.  The Court shall establish the time limit for the filing of written submissions by States Parties and by any other interested entity.

  2. 2.  Any other States Parties may submit written submissions on any of the issues raised in the request. Any other interested entity may be authorized by the Court to do the same.

19  Rule 70 (1) Rules of Court relates to Rule 69, which obliges the registrar to ‘transmit copies of the request for an advisory opinion to Member States, the Commission and to any other interested entity’. The wording covers both solicited and unsolicited amicus curiae participation. Participation in oral proceedings is not addressed by the Rules of Court.

20  In addition, Rule 72 Rules of Court could be regarded as a vehicle to transpose Rule 45 and Practice Directions 42–46 into advisory proceedings (Viljoen and Abebe, 2014, 36; Advisory Proceedings: African Court on Human and Peoples’ Rights (ACtHPR)). As long as the ACtHPR anchors amici curiae in the evidentiary rules, this approach is not convincing given the Court’s limited jurisdiction to interpret abstract legal questions pertaining to the African Charter on Human and Peoples’ Rights (1981) (‘Banjul Charter’) or any other relevant human rights instrument (Art 4 (1) Protocol). In addition, the transposition is unnecessary in light of the broad wording of Rules 69 and 70.

21  The term ‘any other interested entity’ is not further mentioned in the Court’s legal framework. The Rules of Court differentiate between individuals, legal entities, and NGOs in Rule 35 (2) (e), which indicates that the term is sufficiently broad to include both individuals and legal bodies. The ACtHPR has not yet interpreted the term in practice. However, some of the six advisory opinions it has issued include as invitees under Rules 69 and 70 intergovernmental and non-governmental organizations active in the areas addressed by the request, a nod to the requirement that observations be ‘on any of the issues raised in the request’ (Request for Advisory Opinion by The Centre for Human Rights, University of Pretoria, Federation of Women Lawyers, Kenya et al, 2017, para 25; Request for Advisory Opinion by the African Committee of Experts on the Rights and Welfare of the Child et al, 2014, para 11). The ACtHPR has yet to admit an individual as an amicus curiae in advisory proceedings.

22  Little is known of the procedure for unsolicited submissions. The ACtHPR has received unsolicited amicus submissions in only two instances. In one case, request for leave was granted to the Centre for Human Rights of the University of Pretoria (Request for Advisory Opinion by the Socio-Economic Rights and Accountability Project (SERAP), para 17) with no details provided as to the procedure applied. A request for leave by four unnamed NGOs was denied in Request for Advisory Opinion by The Centre for Human Rights of the University of Pretoria et al on the account that the Centre for Human Rights, which had also brought the request for the advisory opinion, did not intend to act as amicus curiae itself but had brought the request for leave on behalf of the NGOs (2017, para 13). This indicates that the Court’s main concern was clarity as to the ownership over the content of submissions as opposed to the prospective overlap of two procedural positions.

23  As in contentious proceedings, the key requirement is for submissions to be relevant. They must be ‘on any of the issues raised in the request’. The broad wording allows amici to address also incidental issues raised by the question. Accordingly, briefs have discussed jurisdictional questions preceding the consideration of the legal question (Request for Advisory Opinion by the SocioEconomic Rights and Accountability Project (SERAP), paras 33–36).

24  Once admitted to the proceedings, the Court establishes a time limit for the filing of written submissions. The same applies to invited submissions (Rule 70). The Court claims full discretion over its consideration of submissions.

3.  Impact on Decisions

25  The ACtHPR follows a welcoming attitude towards amici curiae. Its cases mention only one case of rejection of a brief (Request for Advisory Opinion by The Centre for Human Rights of the University of Pretoria et al, para 13).

26  Like the ECtHR, some investor-State tribunals, and recently the IACtHR, the ACtHPR regularly and extensively summarizes the content of submissions in its judgments (for example, Konaté v Burkina Faso, paras 141–44; Guehi v Tanzania, para 93). However, it has yet to pronounce how it assesses them, rendering it difficult to evaluate the substantive effectiveness of the instrument, that is, the extent to which submissions have influenced the outcome of a case. In its consideration of amicus submissions, the Court does not appear to weigh differently solicited and unsolicited submissions. It has mentioned submissions in its reasoning twice. In Actions pour la protection des droits de l’homme (APDH) v Côte d’Ivoire, the Court noted with regard to the solicited submission from the African Institute for International Law and the African Union Commission on whether the African Charter on Democracy was a human rights instrument within the ambit of Article 3 Protocol that it ‘[took] note of the observations’ (para 56). In Umuhoza v Rwanda, a contentious case in which the applicant contended among others a violation of her right to free speech following her criminal prosecution for minimization of the Rwandan genocide, the National Commission for the Fight against Genocide made explanatory and contextual submissions regarding the nature of the applicant’s statements (paras 128–29). The Court referenced the amicus curiae submission in its reasoning even though it arrived at a different conclusion (paras 145, 157–59). In several cases, the ACtHPR has reached the conclusion argued for by the amicus curiae, without explicitly referencing the arguments made (for example, Konaté v Burkina Faso).

C.  Amicus curiae in the African Commission on Human and Peoples’ Rights

1.  Legal Framework

(a)  Communications Proceedings

27  Amicus curiae was expressly introduced in the 2010 Rules of Procedure. Rule 99 (16) states:

[t]he Commission may receive amicus curiae brief on communication. During the hearing of a Communication in which amicus curiae brief has been filed, the Commission, where necessary shall permit the author of the brief or the representative to address the Commission.

28  The provision applies only to the individual complaint procedure of Article 55 Banjul Charter. However, with regard to all, thus also State communication procedures under Articles 47–49 Banjul Charter, Rule 85, titled ‘Other Interventions’, stipulates:

[t]he Commission may decide to solicit or accept interventions by parties other than the Complainant and the Respondent State that it considers could provide it with information relevant to making a decision on a Communication.

29  The term ‘party’ is not defined in the Rules of Procedure. It is broader than the term ‘State Party’, which Rule 2 defines as ‘African States that have ratified the African Charter on Human and Peoples’ Rights’. The relationship between Rule 85 and Rule 99 (16) is unclear. One possible reading is to regard Rule 99 (16) as a specification of Rule 85.

30  Some authors anchor Rules 85 and 99 (16) Rules of Procedure in Article 46 Banjul Charter, which furnishes the ACommHPR with broad investigative powers, including that ‘it may hear from … any … person capable of enlightening it’ (Odinkalu and Christensen, 1998, 279). However, Rule 99 (8) already mentions participation pursuant to Article 46 in relation to oral proceedings. The ACommHPR has yet to comment on the relationship between the two provisions. In addition to implied or inherent powers, one could rely on Article 52 as a legal basis, which applies to State communications procedures and stipulates that the ACommHPR may obtain ‘from other sources all the information it deems necessary’ (Viljoen and Abebe, 2014, 32). The ACommHPR has never named a legal basis for the admission of amici curiae. In an obiter dictum it simply pronounced that the admission of such briefs accorded with its ‘well established jurisprudence’ (Muzerengwa v Zimbabwe, 2011, para 78, citing Centre for Minority Rights Development and Minority Rights Group International v Kenya, 2009; Good v Botswana, 2010).

(b)  State Report Proceedings

31  Rule 74 (2) and (3) Rules of Procedure provides:

  1. 2.  Institutions, organizations or any interested party wishing to contribute to the examination of the Report and the human rights situation in the country concerned, shall send their contributions, including shadow reports, to the Secretary at least 60 days prior to the examination of the Report.

  2. 3.  The Secretary may also invite specific institutions to submit information relating to the state report within a time limit that he/she may specify.

2.  Practice

32  The ACommHPR mentions the reception of amicus curiae briefs in seven of its 221 finalized communications cases. There are sporadic reports of further amicus curiae submissions (Lindblom, 2006, 362). In all instances, submissions were unsolicited. In addition, the ACommHPR has received from a United Kingdom–based law professor a request for permission to appear as amicus curiae in cases and other processes, such as the drafting of general comments and amendments to the Rules of Procedure (Final Communiqué of the 20th Extra-Ordinary Session of the African Commission on Human and Peoples’ Rights, 2016, para 11).

33  Rule 99 (16) Rules of Procedure does not limit who may act as an amicus curiae. Rule 62, which applies to all procedures, and Rule 74 (2), for State procedures, support a broad understanding of the term. This is confirmed by practice. Submissions have been received largely from African and Western NGOs (for example, Centre for Minority Rights Development and Minority Rights Group International v Kenya, para 1) and academic institutions, such as Yale Law School (for example, Interights v Ethiopia and Interights v Eritrea, 2003, para 14) and the Centre for Human Rights of the University of Pretoria (Good v Botswana, para 17). Individuals have made submissions on rare occasion.

34  The ACommHPR has barely delineated the process for amicus curiae submissions despite the abstract nature of the pertinent Rules of Procedure. The limited practice is unclear as to whether the ACommHPR relies on a request for leave procedure. Rule 36 indicates that like all submissions amicus briefs must be in a working language of the ACommHPR or be accompanied by a translation. Further, amici curiae cannot receive any material relating to the communication given pervasive confidentiality rules concerning the communication procedure (Art 59 Banjul Charter). Submissions nonetheless must be ‘on communication’, thus presumably at least within the scope of jurisdiction. Submissions may be—and usually are—partisan (cf Muzerengwa v Zimbabwe, para 11; Front for the Liberation of the State of Cabinda v Angola, 2013, para 90). In one case, the ACommHPR accepted an amicus brief from an NGO that co-filed a case on behalf of an indigenous community (Centre for Minority Rights Development and Minority Rights Group International v Kenya, paras 1, 46), a highly unusual practice in comparative perspective. Amici may address facts and legal arguments or propose specific interpretations of the disputed provisions in their submissions (for example, Front for the Liberation of the State of Cabinda v Angola, para 31). The ACommHPR does not reject briefs, but it ignores briefs that duplicate arguments made by a party (see Good v Botswana, para 133; Front for the Liberation of the State of Cabinda v Angola, para 31; Muzerengwa v Zimbabwe, para 78), a requirement that is difficult to satisfy without access to the case submissions or affiliation with a party.

35  The ACommHPR has accepted submissions at all stages of the proceedings, including admissibility and provisional measures proceedings (Shumba v Zimbabwe, 2012, paras 18, 19). There is no record of oral participation.

36  The ACommHPR transmits amicus briefs to the parties for their observations (Muzerengwa v Zimbabwe, para 13; Shumba v Zimbabwe, para 21). Further, Rule 99 (13) suggests that the commissioners and the parties may question amici curiae with permission of the chairperson. Some parties have responded to amicus briefs in their filings (Centre for Minority Rights Development and Minority Rights Group International v Kenya, para 136).

3.  Assessment

37  A sustained criticism regarding the procedure is the expansive confidentiality regime (Art 59 Banjul Charter), which encompasses all information pertaining to communications prior to the consideration of the final decision by the African Union Assembly and its subsequent publication in the activity report (Killander and Abebe, 2012, 213). Thus, prospective amici curiae will struggle to obtain information on a pending case and comply with the relevancy requirement. Moreover, the ACommHPR has not sought to create awareness about the instrument itself (Viljoen and Abebe, 2014, 34). This may explain why the majority of amici curiae are partisan and often openly cooperate with a party—a practice that can cause frictions with the principles of party equality and due process.

38  The impact of amicus briefs on the ACommHPR’s decisions is difficult to ascertain. The ACommHPR often does not summarize briefs, an exception being Front for the Liberation of the State of Cabinda v Angola (para 90). On occasion, the ACommHPR has noted considering a brief, but usually only to state that the issues addressed in the brief were irrelevant to the points deliberated upon (Front for the Liberation of the State of Cabinda v Angola, para 99; Muzerengwa v Zimbabwe, para 78). This approach is confirmed by Rule 110 (1) Rules of Procedure. In State report procedures, there is an express obligation to consider all sources, including amicus curiae briefs (Rule 75 (5) Rules of Procedure).

D.  Relevance in the African Human Rights System

39  Amicus curiae plays a minor role in the practice of the ACtHPR and the ACommHPR despite both institutions’ positive dispositions towards it and no indications of objections to it by the State Parties.

40  One reason for the low level of participation may be the lenient standing requirements for NGOs, individuals, and other groups before the ACommHPR and, in case a State has made a declaration pursuant to Article 34 (6) Protocol, the ACtHPR (Viljoen and Abebe, 2014, 33–34; Murray, 2014, para 11). The ACommHPR even permits actio popularis (Spilg and Mack & Ditshwanelo v Botswana, 2011, paras 75, 76) enabling NGOs to engage in strategic (public interest) litigation without having to screen pending cases for the possibility to advance progressive rights interpretation through amici curiae as usual in international courts and tribunals with more restrictive standing requirements.

41  In addition, the lack of transparency concerning the procedures and restrictions on access to documents may deter potential amici curiae from spending money and time on preparing briefs that may never be considered for lack of relevancy or failing to meet internal procedural requirements.

E.  Comparative Assessment

42  Across the benches, amici curiae share some characteristics: their key purpose is to support the adjudicating body in the administration of a pending case. Accordingly, amici are subject to judicial discretion and obtain no formal status in the proceedings, including no formal rights. They seek to transmit some kind of information, are typically driven by an interest in the case, and, finally, they are usually partial. Beyond that, the concept is context specific and rather vague. Specifically, there is no common approach concerning the permissible relations between amici curiae and a party. The ACommHPR falls on the far end of the spectrum in terms of permissible dependence, seemingly excluding only identity between a party and an amicus like the IACtHR (Wiik, 2018, 243–46).

43  Also in other respects, the procedures and practices of the ACtHPR and the ACommHPR align with regulatory trends. There is a general acceptance of the concept in international dispute settlement with the exception of the International Court of Justice (ICJ) although before many bodies the legal basis and nature of the instrument are still unclear.

44  Procedures and practices seek to harvest the benefits offered by the instrument whilst minimizing its possible negative impacts, particularly on the parties’ rights and the duration of proceedings. Regulatory approaches vary between adjudicating bodies, but there is a clear trend towards formalization and codification of amici curiae, as reflected in the introduction of the ACtHPR’s practice directions on amici curiae.

45  The ACtHPR’s procedure and its practice stand out for its lack of clear formal guidelines regarding the admission procedure and amicus briefs. The lack of transparency requirements pertaining to the author of a brief and the sources of financing risk affecting party equality. In this regard, the practice of investor-State tribunals is commendable (see Art 4 UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration). More openness in this respect, including the assessment of briefs at the deliberations stage, would benefit the instrument and accordingly support the judicial function, as has been the case in investor-State arbitration and before regional human rights bodies.

46  Laudable is the ACtHPR’s regulatory approach to access to documents for amici curiae. Most adjudicating bodies subject amici to the rules applicable to the public. The ACtHPR has adopted the same pragmatic approach as a growing number of investor-State tribunals (Piero Foresti v South Africa, 2009, 1; Infinito Gold v Costa Rica, 2016, paras 40, 43–44), whereas the confidentiality regime of the ACommHPR ranks among the most restrictive in comparison to other bodies and hampers amicus curiae participation.

Cited Bibliography

  • CA Odinkalu and C Christensen, ‘The African Commission on Human and Peoples’ Rights: The Development of Its Non-State Communication Procedures’ (1998) 20 HumRtsQ 235–80.

  • A Mohamed, ‘Individual and NGO Participation in Human Rights Litigation before the African Court of Human and Peoples’ Rights: Lessons from the European and Inter-American Courts of Human Rights’ (1999) 43 JAfrL 201–13.

  • AK Lindblom, Non-Governmental Organisations in International Law (CUP Cambridge 2006).

  • C Brown, A Common Law of International Adjudication (OUP Oxford 2007).

  • PJ Sands and R Mackenzie, ‘International Courts and Tribunals, Amicus Curiae’ in R Wolfrum (ed), The Max Planck Encyclopedia of Public International Law (OUP 2008), <https://opil.ouplaw.com/home/EPIL> (accessed 30 April 2019).

  • M Killander and A Abebe, ‘Human Rights Developments in the African Union during 2010 and 2011’ (2012) 12 AfrHumRtsLJ 199–222.

  • R Wolfrum and M Möldner, ‘International Courts and Tribunals, Evidence’ in R Wolfrum (ed), The Max Planck Encyclopedia of Public International Law (OUP 2013), <https://opil.ouplaw.com/home/EPIL> (accessed 30 April 2019).

  • R Murray, ‘African Commission on Human and Peoples’ Rights (ACommHPR)’ in R Wolfrum (ed), The Max Planck Encyclopedia of Public International Law (OUP 2014), <https://opil.ouplaw.com/home/EPIL> (accessed 30 April 2019).

  • G Naldi, ‘Observations on the Rules of the African Court on Human and Peoples’ Rights’ (2014) 14 AfrHumRtsLJ 366–92.

  • Y Ronen and R Naggan, ‘Third Parties’ in CPR Romano, KJ Alter, and Y Shany (eds), The Oxford Handbook of International Adjudication (OUP Oxford 2014) 806–27.

  • F Viljoen and A Abebe, ‘Amicus Curiae Participation before Regional Human Rights Bodies in Africa’ (2014) 58 JAfrL 22–44.

  • A Wiik, Amicus Curiae before International Courts and Tribunals (Hart/Nomos Baden-Baden 2018).

Further Bibliography

  • C Chinkin and R Mackenzie, ‘International Organizations as “Friends of the Court” in L Boisson de Chazournes (ed), International Organizations and International Dispute Settlement: Trends and Prospects (Transnational Publishers Ardsley 2002) 295–311.

  • L Bartholomeusz, ‘The Amicus Curiae before International Courts and Tribunals’ (2005) 5 NSAIL 209–86.

  • A Zimmermann, ‘International Courts and Tribunals, Intervention in Proceedings’ in R Wolfrum (ed), The Max Planck Encyclopedia of Public International Law (OUP 2006), <https://opil.ouplaw.com/home/EPIL> (accessed 30 April 2019).

  • LH Mayer, ‘NGO Standing and Influence in Regional Human Rights Courts and Commissions’ (2011) 36 BrookJIntlL 911–46.

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Cited Cases