Making International Property Law: The Role of Amici Curiae in International Judicial Decision-Making

40 Syracuse Journal of International Law and Commerce, 2013

34 Pages Posted: 19 Jun 2012 Last revised: 17 Apr 2013

See all articles by Anna V. Dolidze

Anna V. Dolidze

affiliation not provided to SSRN

Date Written: March 24, 2013

Abstract

Amici curiae interventions are becoming commonplace in international dispute resolution. Nevertheless, relevant international relations and international law scholarship on international judicial decision-making so far has overlooked this trend. The role of amici curiae has yet to be conceptualized.

This paper argues that amici curiae interventions play an influential role in international judicial decision-making. By analyzing amici curiae participation in cases related to the right to property within the European Convention, this paper explains the basic tenets of amicus participation, their modes of knowledge production, as well as the ways through which the Court engages with and is influenced by amici.

There are five types of amici interveners: 1.individuals, 2. NGOs, 3. international organizations, 4. states, and 5.national independent statutory bodies. They influence judicial decision-making, primarily, through practices of knowledge production. I define “knowledge production practice” as a systematic practice of assigning meaning to information. Amici interventions engage in two disparate modes of knowledge production, which I call here “activist” and “expert” modes. In the activist mode, intervening entities make a claim in the realm of de lege ferenda, what the law should be. The amici formulate a “constitutive claim”, a claim about a new factual reality that necessitates development of new international law and principles.

However, most amici engage in an expert mode of knowledge production. This mode misses a larger constitutive claim about the changed reality in relation to which new law needs to be developed. In the expert mode the amici support a resolution of a particular case in relation to one of the sides, the applicant or the respondent. Amici present factual information and research and argue about how the law should be applied to the facts as understood in the context of the submitted research. However, in the “expert” mode the intervening entities make claims in the realm of de lex lata, of what the law is, and not in the sphere of de lege ferenda. In doing so, the interveners marshal information and evidence from domestic jurisdictions, and make claims on how the existing international law should apply to these facts.

The Court engages with the amici in three specific ways: acknowledgment, refutation, and corroboration. Almost all amici interventions are acknowledged. In certain cases, the Court engages specifically with arguments put forth by amici, including with their claims de lege ferenda, and explains why it cannot share amici’s arguments. In the mode of corroboration, however, the Court expressly relies on the evidence put forth by amici in the expert mode.

Keywords: international courts, amicus curiae, property, experts, European Court of Human Rights, NGOs

JEL Classification: K33, K40, K41

Suggested Citation

Dolidze, Anna V., Making International Property Law: The Role of Amici Curiae in International Judicial Decision-Making (March 24, 2013). 40 Syracuse Journal of International Law and Commerce, 2013, Available at SSRN: https://ssrn.com/abstract=2086433

Anna V. Dolidze (Contact Author)

affiliation not provided to SSRN

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