Caracterización del uso de las plantas medicinales en el caserío La

3.1.1 The Permanent Court of International Justice

The PCIJ was established in the aftermath of World War I, through, and by, the League of Nations, although it was never a part of the League nor did its Statute form a part of its Covenant. According to its Statute, the Court was open to the members of the League and to those States men- tioned in the Annex of the Covenant (art 35), but other States could be par- ties in cases before the Court (art 34). The fact that NGOs had not been granted locus standidid not prevent the Court from entrusting any bodies or organizations to carry out inquiries or give expert opinions (art 50). The Statute also allowed any ‘international organizations’ considered by the Court as likely to be able to furnish information on the question for which the advisory opinion of the Court had been requested, to submit written statements, or be heard at a public sitting to be held for that purpose (art 66). The PCIJ understood that the concept of international organizations embraced private institutions such as unions, which were openly admitted to be heard on the very first Advisory Opinion of the Court, which ad- dressed the participation of workers’delegates in the newly created ILO.6 This important precedent in listening to civil society organizations, unfortu- nately, is not being kept by the ICJ.

The PCIJ had a short operational existence–between 1922 and 1940 – and dealt with twenty-nine contentious cases between States and delivered twenty-seven advisory opinions. This does not mean that it did not address situations where human rights–a key civil society concern - were at stake, even before the Universal Declaration of Human Rights, as we can observe in thePolish Upper Silesia7andMinority Schools8cases. These cases are particularly interesting because in a contentious situation involving Germany and Poland before the beginning of World War II, the Court ruled that national minorities living in a foreign country had the right to keep

their own institutions in order to maintain the very essence of their condi- tion of minority and that they deserved protection under the principle of non-discrimination, the imposition of restrictions to those rights by the host country being hence prohibited. The Court decision ensured such rights to German speaking minorities living in Poland. However, it could not pre- vent the events that started a couple of years later, on 1 September 1939. 3.1.2. The International Court of Justice

The ICJ Statute (art 34) defines that only States may be parties before the Court, but admits that it may give an advisory opinion at the request of States or whatever bodies are authorized by or in accordance to the UN Charter (Art 65). The Court may entrust any bodies or organizations to car- ry out inquiries or give expert opinions (art 50), which, in principle, does not hinder the Court to assign such tasks to NGOs. The Statute provides a twofold rule to deal with information provided by third parties: if the Court is appreciating a case, it may request topublic international organi- zations any information relevant to the question, which can also be pre- sented by those organizations on their own initiative (Art 34 (2)); if it is appreciating a demand for advisory opinion, then, the Statute (art 66 (2)) authorizes the Court Registrar to notify‘any international organization con- sidered by the Court as likely to be able to furnish information on the question submitted for the advisory opinion, that the Court will be pre- pared to receive written statements or to hear, at a public seating to be held for that purpose, oral statements related to the question’. Hence, at least theoretically, IGOs could provide information for both contentious and ad- visory proceedings and INGOs only for the latter.

Although the statutory commands of the PCIJ and the ICJ on the partici- pation of international organizations in the advisory proceedings are identi- cal, the ICJ did not follow the practice of its predecessor, because it has ex- tensively worked to limit the capability to give expert opinions, proprio motu or under the Court request, to ‘public international organizations’, considering as such only international organizations of States.9Hence, pri- vate institutions, such as INGOs, have neither locus standi before the Court nor can freely submit information, viaamicus briefs, to the ICJ, as can be observed by the very scant evidence of NGOs trying to do so. However, since the restriction on the participation in advisory proceedings does not rely on ICJ Statute, there is some room for improvement in the participation of INGOs in ICJ proceedings if such restrictions are overrid- den by new rules, more sensitive to the contemporary status of non-state actors in the international sphere. A timid movement toward this direction can be observed, for example, in Practice Direction XII,10which accepted written statements or documents submitted by INGOs in an advisory opi- nion case on its own initiative, but defined that they would not be

considered as part of the case file. Since those papers will be made public, any parties to the case can incorporate them to their own submissions to the Court, a situation that is not particularly new.11

If water cannot pass through the floodgate, it finds its course along an- other path. The restrictions to act before the Court do not imply that NGOs are not entitled to persuade States to act on their behalf. This was exactly the situation of the emblematic ICJ Nuclear WeaponsAdvisory Opinion12 released after a consultation of the UN General Assembly, on whether‘the threat of or use of nuclear weapons is in any circumstance permitted under international law?’

The initiative was the main goal of the World Court Project, a coalition of some NGOs that sought to convince member-states at those fora to sub- mit the request for the advisory opinion to the ICJ, formulating it in such a way that nothing but a negative answer could be expected. Lindblom ob- served that‘the issue of the strong involvement of civil society in the issue brought to the ICJ was regarded as a relevant issue by some States as well as by some of the judges’.13Judge Oda, for example, when addressing the historic background of the case, wrote that he had‘the impression that the request for an advisory opinion which was made by the General Assembly in 1994 originated in ideas developed by some NGOs’.14

A remarkable aspect of those considerations was the very nature of the participation of NGOs in the case: Should it be regarded as‘political’or considered ‘legal’? Definitively, NGOs had not submitted the request for the advisory opinion. Nonetheless, also unequivocally, they had succeeded in convincing the majority of the member-states– which do not have nu- clear weapons and are threatened by them–to assume the request as theirs and forward it to the ICJ. They also convinced 3.5 million people around the globe to declare in writing their personal opposition toward nuclear weapons, documentary evidence that was brought to the Court.

In practical terms, any criticism to the role of NGOs in the issue became technically irrelevant because the request had been presented by a legiti- mate international body and demanded a formal answer from the Court. Additionally, the Court could not disregard the question based on the pro- cess that had been used to reach the decision to submit the request because it had been formally approved by the member-states in a legitimate meet- ing of an international body, it being beyond the scope of the Court to evaluate the reasoning of the request, which, at least in the case of the UNGA, was within the scope of the organization: the promotion of peace.15 Furthermore, since a representative part of the UN member-states are governed by democratically elected representatives, acceding to civil society pressure is an expected attitude, within the‘rules of the game’.

Nevertheless, the outcome of the case was both disappointing and aston- ishing, because the Court pronounced anon liquet, i.e., refused to formu- late a definitive answer to the legal question, understanding that ‘law is

silent or applicable rules are insufficient or obscure’.16 As a result, the Court decided by seven votes to seven, by the President’s casting vote, that

‘it follows from the above-mentioned requirements that the threat or use of nuclear weapons would generally be contrary to the law ap- plicable in armed conflicts, and in particular the principles and rules of humanitarian law. However, in view of the current state of inter- national law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defense, in which the very survival of a State would be at stake’.

The outcome was disappointing because the lobbying effort and the cap- tious wording of the question had not achieved the ultimate objective of the World Court Project, i.e., the declaration of the unlawfulness of the threat or use of nuclear weapons, and represented an astonishing end for an orchestrated initiative that seemed to be invincible.17 It was also aston- ishing because it spurred an unprecedented clash of opinions within the Court and had to be decided by the casting vote of the President. Moreover, it eroded the understanding of the completeness of international law supposedly ensured by the proclaimed comprehensive sources of inter- national law defined in article 38 of the ICJ Statutes, and, thus, the idea of the illegality and illegitimacy of anon liquet.18It was a disappointing end for a so-considereda prioriassumption of every legal system.

Another aspect of the activities of the ICJ which deserves our attention is the increasing presence of human rights law in its cases. As pointed out by Rosalyn Higgins, until recent times, the Court was a ‘Court of sover- eign States’, but it has become a Court concerned with human rights be- cause those rights have found their proper place within international law, and moved from the margins toward the center of the Court jurisdictional activities.19If we compare the works of the PCIJ with those of the ICJ and these works through time, the deepening and broadening of human rights can be seen. Higgins, for example, pointed that out when the Court ad- dressed the concept of self-determination in the South West Africa, NamibiaandWestern Saharacases,20‘there were still many within the UN who insisted that self-determination was nothing more than a political as- piration. The Court was the forerunner in recognizing self-determination as a legal right.’21We can also notice the increasing awareness and participa- tion of NGOs in the problem-defining processes22and enforcement of the Court’s decisions,23 both working towards an improved participation of NGOs in the activities of the ICJ in a world cast by the challenges of a global civil society.

3.1.3. The International Criminal Courts (ICC, ICTY, ICTR)

A natural outcome of the rising centrality of human rights and the increas- ing participation of individuals in international law was the creation of in- ternational criminal courts, a kind of judiciary body that would have been unthinkable in positivist pure inter-state international law. The forerunner of these tribunals is the International Military Tribunal at Nuremberg, es- tablished in 1945 to appraise crimes perpetrated by the Nazis during World War II. In holding that‘crimes are committed by men, not by abstract enti- ties,’the tribunal acknowledged that individuals, not only States, were sub- jects of international law, therefore possessing duties, as well as rights.24 Pragmatically, in order to avoid the risks of application of the legal princi- ple of nullo crime sine lege to its activities, the constitutive acts avoided the words ‘law’ or ‘code’, nevertheless laying down the conceptual basis for the further establishment of international criminal tribunals.25

In this aspect, it is worth observing that NGOs played a relevant role in the establishment of the International Criminal Court (ICC)26 and likewise provide valuable and reliable information about the atrocities appraised by the ICC, the International Criminal Tribunal for the Former Yugoslavia (ICTY)27and the International Criminal Tribunal for Rwanda (ICTR). The UN Security Council, for instance, requested to NGOs the submission of information concerning violations of international humanitarian law in Yugoslavia.28

The Statutes of the three tribunals do not providelocus standifor NGOs before the Courts, since the criminal proceedings are initiated and con- ducted by the Prosecutor against those who appear to have committed crimes of war or against humanity. In the ICC, the Prosecutor can initiate an investigation based on information referred by a State party to the Statute or by the UNSC, and also byproprio motu, relying, in the latter si- tuation, on the seriousness of the evidence provided. The Statutes of both the ICTR and the ICTY have similar provisions, although expressly defin- ing that the Prosecutor shall initiate investigations ex-officio based on in- formation obtained, among other sources, from NGOs.29 The proceedings of the current cases before the tribunals have revealed the importance of the information gathered and provided by humanitarian NGOs, which per- form an essential, yet unofficial, ancillary investigative role to the Prosecutors’office that might make us doubt the effectiveness of the tribu- nals if the NGOs did not exist.30

Another noteworthy aspect is the participation of NGOs as victims in ICC proceedings. While such a right has been enjoyed in some civil law countries for several decades, it is also true that the participation of victims in ICC proceedings represents an innovative experience in the history of international criminal justice,31moreover if we take into account that legal entities, not only individuals, can be regarded as victims of those crimes.

The ICC Rules of Procedure and Evidence have a general provision for victim participation in the Court’s proceedings, considering as such those ‘organizations or institutions that have sustained direct harm to any of their property which is dedicated to religion, education, art or science or charita- ble purposes and to their historic monuments, hospitals and other places and objects for humanitarian purposes’.32This participation does not repre- sent, however, the admission of NGO victims as parties to the case, neither impose to those organizations the duty to present evidence of the direct harm they suffered, a burden of proof that remains in the hands of the Prosecutor,33 yet the‘victims participating in the trial proceedings may, in principle, lead to evidence pertaining to the guilt or innocence of the ac- cused and challenge the admissibility or relevance of the evidence’.34

As of January 2012, the ICC Prosecutor has been conducting investiga- tions in Uganda, the Democratic Republic of the Congo, the Central African Republic, Sudan (Darfur), Kenya, Libya and Cote d’Ivoire. Despite charges of unnecessary destruction of property, none of the cases evidence NGOs as victims of the accused.

3.1.4. The Court of Justice of the European Union

The Court of Justice of the European Union, the current name of the European Court of Justice (ECJ) is the judicial body of the European Union and of the European Atomic Energy Community. It is made up of three courts: the Court of Justice, the General Court and the Civil Service Tribunal. Their primary task is to examine the legality of European Union measures and ensure the uniform interpretation and application of European Union law.35The Court evolved together with the institutions of the European communities and most of its jurisprudence was produced before the Treaty of Lisbon. For this reason, this section will often make reference to community law, instead of European law.

NGOs are authorized to seek judicial protection against illegal acts inflicted on them by EU institutions. Acting as such, they do not do so within the customary scope of activities of an NGO–the defense of public interests – but rather do so in their own private interests. This does not mean, however, that cases brought to the Court on those grounds will not affect international law.

The 9/11 attacks had several consequences at the international level. One of those was the freezing of funds and economic resources belonging to, or owned or held by, a natural or legal person, group or entity suppo- sedly associated with Usama bin Laden, Al’Qaeda or the Taliban, included in the lists released by the UN Security Council, which were reproduced, at the European level, in Council Regulations. A private foundation estab- lished in Sweden – the Al Barakaat International Foundation – was listed in Council Regulation 881/2002 and, claiming violation of its fundamental

rights of due process and respect of property, challenged the inclusion of its name on the list and the freezing of its assets pursuant to article 230(4) TEC,36bringing the case to the CFI, which eventually ended in a judgment of the Grand Chamber of the ECJ.37 The Chamber understood that the TEC provided the legal basis for financial sanctions against non-state ac- tors but, in a remarkable decision, concluded that all Community acts, including those that implement the UN Security Council resolution, were reviewable if they violated the fundamental rights of an NGO. The Court understood that the respect of those rights constituted a condition for the lawfulness of the Community acts and that, in the specific case,‘the rights of the defense, in particular the right to be heard and the right to effective judicial review of those rights were patently not respected’.38 Moreover, the Court found that the procedure before the UN Security Council’s Sanction Committee, in charge of‘de-listing’names, was essentially diplo- matic and intergovernmental, and that the persons or entities concerned had no real opportunity of asserting their rights before that body, especially considering that its decisions were made by consensus, each of its mem- bers having the right of veto. As a result, the ECJ annulled Council Resolution (EC) 881/2002 insofar as it concerned the Al Barakaat International Foundation and determined the release of its assets after three months starting from the date of delivery of the judgment.

In a further case, the CFI appreciated the same issue, stating that the