*{Giving the Public a Voice in the Protection of the Global Environment - Global Policy Forum - NGOs 

Giving the Public a Voice in the Protection of the Global Environment:
Avenues for Participation by NGOs in Dispute Resolution 
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}
 
Winter, 2001
* 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}} 

*{I. Introduction} 
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. 

*partie=titre 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 *partie=nil 
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.  

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} 

*partie=titre 1. Public Participation Remedy Under Article 9*{2} *partie=nil  
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. 

*partie=titre III. Opportunities for NGO Participation in the World Trade Organization 
A. The WTO Dispute Settlement Process *partie=nil   
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. 

*partie=titre B. New Avenues for NGO Participation in the WTO 
1. The Appellate Body Ruling in the Shrimp/Turtle Dispute *partie=nil  
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.
 

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} 

*partie=titre 2. Impact of the Appellate Body's Shrimp/Turtle Ruling on Future NGO 
Involvement with Disputes in the WTO *partie=nil 
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} 

*partie=titre b. Consequences of the Shrimp/Turtle Ruling for Dispute Resolution Practice 
and Reform *partie=nil  
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. 
 
 
*partie=titre 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 *partie=nil  
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} 

*partie=titre B. The Drawbacks of NGO Involvement in International Fora *partie=nil  
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. 

*partie=titre C. Suggestions for Sensible Regulations on NGO Involvement in International 
Fora *partie=nil  
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.
 
*{V. Conclusion} 
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." 
 
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.