Judicial Institution Builders: NGOs and International Human Rights Courts

Abstract

Current theories on international courts, civil society, and global governance overlook the burgeoning relationships between international courts and nongovernmental organizations (NGOs). NGO participation at international courts takes many forms, including representing individual petitioners and acting as third parties as well as promoting and supporting the court through outreach, political advocacy, administrative support, and enforcement of judgments. However, substantial variation exists across international courts as to the form and intensity of NGO participation. To explore why different participatory relationships emerge across international courts, this article examines the historical participation of human rights NGOs at the European and Inter-American Human Rights Systems. This analysis departs from NGO mobilization arguments and suggests that variation in NGO participation stems from institutional factors. NGO participation derives from opportunity structures for participation that emerge due to the historical era and initial conditions of court creation and subsequent state financial and political support for the court.

Notes

1. Human rights courts and commissions are judicial or quasi-judicial institutions that interpret and enforce the rights guaranteed in the regional human rights conventions or human rights declarations. In practice, these institutions operate when states or individual victims file claims against states for potential human rights violations articulated in these conventions. These claims are not criminal complaints but ask for redress for rights violations either as monetary compensation or as domestic policy changes.

2. There is also a body of literature that argues that transnational civil society is not just imparting cosmopolitan values, but that the cosmopolitan ethic translates to the erosion of the nation-state system (see Mathews 1997).

3. Recent literature has questioned the stark divide between research on international and domestic courts, particularly with regard to judicial power (see Staton and Moore 2011).

4. The governing body for the European System of Human Rights is the Council of Europe and for the Inter-American System of Human Rights is the Organization of American States (OAS).

5. It is impossible to determine the exact percentage of cases in which NGOs represent petitioners or act as third-party interveners. This is because the Commission and Court do not always list the name of victim's legal representation and there is no list of all cases in which third-party interventions have occurred. The 1 percent figure came from an interview with a long-time court official who estimated this based upon personal experience working with petitions and cases.

6. This information came from a personal interview with a representative of CEJIL who referenced their internal statistics.

7. This is reflected in repeated personal interviews I had with representatives of NGOs that participate at the European Court of Human Rights and the Inter-American System. When I inquired about why they engage with the human rights systems, I was repeatedly told that it was the only enforceable mechanism available.

8. The African Human Rights System is excluded from this analysis because the court is not currently functional.

9. According to Charnovitz (1996), the period from 1950–1971 was a time of NGO “underachievement” due to Cold War politics and weakness at the United Nations. Additionally, the numbers of international human rights NGOs have grown from less than 50 in the late 1940s to more than 400 in the early 2000s with the largest increase in growth occurring after 1980 (Tarrow 2011).

10. NGOs can only act as legal representation to the direct petitioner or if the NGO itself was a victim of the human rights violation. Additionally, this assumes that the state has agreed to individual petition. Mandatory direct petition existed after 1998, but prior to 1998, states had to accept the optional protocol of individual petition.

11. The 1 percent figure came from interviews with long-time court officials who estimated this based upon personal experiences working with petitions and cases.

12. Prior to this case, the British NGO the National Council for Civil Liberties sought to submit information to the Court as a third party in the 1978 Tyrer v. the UK case but was refused without explanation.

13. The 1 percent figure came from interviews with long-time court officials who estimated this based upon personal experiences working with petitions and cases.

14. See the Goodwin v. UK case.

15. These cases include Barrios Altos v. Peru, Maria da Penha v. Brazil, and Yakye Axa Indigenous Community v. Paraguay or “Tierraviva.”