Electronic copy available at: http://ssrn.com/abstract=2488073

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The Amicus Curiae in the Inter-American Court of Human Rights (1982-2013)

Francisco J. Rivera Juaristi* ABSTRACT The Inter-American Court of Human Rights (IACtHR or Court) received approximately 500 amicus curiae briefs in its first 35 years. This number is particularly striking, taking into account that the IACtHR issued only about 275 judgments and decisions in that same time period, as well as twenty advisory opinions. This means that, in its contentious jurisdiction, the Court has received more briefs from non-parties than from parties actually litigating a case. Despite these numbers, statistical and analytical research on the participation of such friends of the court in written and oral proceedings before the IACtHR is relatively scarce in academic literature. This article aims to address this gap in the literature. Drawing upon all of the Courts contentious jurisprudence - from 1988 up to the end of 2013 - this article provides a comprehensive analysis of more than 400 amici curiae briefs submitted in almost 100 contentious cases. It also relies on more than 100 amici briefs submitted in the Courts advisory jurisdiction from 1982 through 2013. The purpose of this article is to contribute to the institutional historical memory of the IACtHR; highlight and provide a critique of the development of procedural norms and practices that regulate amici curiae submissions before the Court; provide suggestions and recommendations for greater clarity, consistency, and transparency concerning the participation of amicus curiae in the Courts proceedings, and encourage a broader debate and discussion about the proper role of amicus curiae participation before the IACtHR. 1. INTRODUCTION The Inter-American Court of Human Rights (IACtHR) received approximately 500 amicus curiae briefs in its first 35 years. This number is particularly striking, taking into account that the IACtHR issued only about 275 judgments and decisions in that same time period, as well as twenty advisory opinions. This means that, in its contentious jurisdiction, the Court has received more briefs from non-parties than from parties actually litigating a case. Despite these numbers, statistical and analytical research on the participation of amicus curiae in written and oral proceedings before the IACtHR is relatively scarce in academic literature. Certainly, the works of Charles Moyer1, Carolina Loayza Tamayo2, Thomas Buergenthal3, and * Francisco J. Rivera Juaristi, Director and Assistant Clinical Professor of Law, International Human Rights Clinic, Santa Clara University School of Law, California, United States. Former senior staff attorney and coordinator of the internship program at the Inter-American Court of Human Rights. EMAIL: fjrivera@scu.edu. The author would like to thank Claudia Josi for her unconditional support and insightful comments, and Oswaldo Ruiz-Chiriboga for his valuable suggestions in earlier drafts. 1 C. Moyer, The Role of Amicus Curiae in the Inter-American Court of Human Rights, in Inter-American Human Rights Institute, La Corte Interamericana de Derechos Humanos, Estudios y Documentos, (1985), .

Electronic copy available at: http://ssrn.com/abstract=2488073

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Dinah Shelton4, among others, particularly in the 1980s and 90s, contributed much to our understanding of this topic. And, in more recent times, other authors have analysed the broader role of non-governmental organizations in international legal proceedings,5 including before the IACtHR and other international human rights courts and commissions.6 But there seems to be no comprehensive study about the participation of amicus curiae before the IACtHR. This article aims to address this gap in the literature, and contribute to the institutional historical memory of the IACtHR. Drawing upon all of the Courts contentious jurisprudence - from 1988 up to the end of 2013 - this article provides a comprehensive analysis of more than 400 amici curiae briefs submitted in almost 100 contentious cases. It also relies on more than 100 amici briefs submitted in the Courts advisory jurisdiction. The article is divided into three parts. Part I seeks to define the term amicus curiae and provide some historical context about the development and acceptance of amici briefs in common law, civil law, and international law jurisdictions, with special emphasis on how the IACtHR has defined the role of amici curiae, and on how amici curiae have contributed to the IACtHRs jurisprudence. Part I also aims to identify the types of non-parties that have submitted amicus briefs before the IACtHR. Although non-governmental organizations certainly submit a large portion of these briefs, other types of organizations, private and public institutions, and individuals do so frequently. Having set the stage, Part II then describes the normative framework that allows for and regulates the participation of amicus curiae before the IACtHR, and includes an analysis and critique of the criteria the Court has used to reject amicus briefs and to allow or deny the participation of amicus curiae in its oral proceedings. Part II also provides an analysis and critique of the Courts practice (or lack thereof) of identifying the authorship and content of amicus briefs in its judgments. It also discusses whether information contained in an amicus curiae brief may be incorporated into the body of evidence in a case before the IACtHR to support findings of fact. Finally, Part III provides a summary of suggestions and recommendations for greater clarity, consistency, and transparency concerning the participation of amicus curiae in the Courts proceedings, and encourages a broader debate and discussion about the proper role of amicus curiae participation before the IACtHR. 2. AMICI CURIAE

2 N. de Pierola y Bata and C. Loayza Tamayo, Los Informes de Amici Curiae ante la Corte Interamericana de Derechos Humanos (1996), . 3 T. Buergenthal, The Advisory Practice of the Inter-American Human Rights Court, 79 American Journal of International Law (1985), pp. 15-17. 4 D. Shelton, The participation of Nongovernmental Organizations in International Judicial Proceedings, 88 American Journal of International Law (1994), pp. 611-642. 5 See, inter alia, A. Dolidze, The Arctic Sunrise and NGOs in International Judicial Proceedings, ASIL Insights Vol. 18, Issue 1, 3 January 2014, ; L. Bartholomeusz, The Amicus Curiae Before International Courts and Tribunals, 5 Non-State Actors & International Law (2005), p. 209; S. Williams and H. Woolaver, The Role of the Amicus Curiae before International Criminal Tribunals, 6 International Criminal Law Review (2006), pp. 151-189; 6 See, inter alia, L. Hitoshi Mayer, NGO Standing and Influence in Regional Human Rights Courts and Commissions, 36 Brooklyn Journal of International Law (2011), p. 911, , and L. Van den Eynde, NGOs Contribution to the European Court of Human Rights through Amicus Curiae Briefs, Paper presented at the annual meeting of the The Law and Society Association, Westin St. Francis Hotel, San Francisco, California, 30 May 2011, .

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An amicus curiae is, literally, a friend of the court. More broadly, amici (the plural form of amicus) are non-parties who provide a court with useful information about a particular case and give advise on how to resolve the legal issues presented. According to Dinah Shelton, amici suggest to a court matters of fact and law within their knowledge.7 Similarly, according to Michael Reisman, [i]n common law countries, the amicus curiae brief has been an institution which has provided useful information to courts, [and] permitted private parties who were not litigating to inform the court of their views and the probable effects the outcome might have on them [].8 Amici also often provide information about the broader context in which a particular contentious case takes place. This is important, as parties in a specific case may not adequately represent the interests or views of the community or of specific groups within the broader society as a whole.9 2.1 DEVELOPMENT OF THE AMICI CURIAE Although amici briefs first became popular in common law countries,10 they are now fairly common in civil law jurisdictions as well.11 International courts are also joining this trend. The European Court of Human Rights (ECtHR), for example, accepts amici briefs if doing so is in the interest of the proper administration of justice.12 The IACtHR also accepts amici briefs routinely. The first amici briefs were filed in 1982 in the context of the Courts 13 first advisory opinion. 14 Since then, the Court has received approximately15 113 amici briefs in its advisory jurisdiction.16

7 D. Shelton, supra n. 4, pp. 611, 615. 8 ICJ (Pleadings) 1970, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276, pp. 36-37. 9 J. M. Pasqualucci, The Practice and Procedure of the Inter-American Court of Human Rights (Cambridge University Press 2013) p. 158. 10 S. Krislov, The Amicus Curiae Brief: From Friendship to Advocacy, 72 Yale Law Journal (1963), p. 694; M. K. Lowman, The Litigating Amicus Curiae: When Does the Party Begin After the Friends Leave?, 41 American University Law Review (1992), pp. 1248-1250. 11 See, inter alia, D. Shelton, supra n. 4, p. 616 ([T]he position in France and other civil law countries is to grant broad rights of intervention. Associations and organizations concerned with the environment or human rights participate in cases as intervenors, serving the same purpose as amici in common law countries.); L. Johnson & N. Amerasinghe, Protecting the Public Interest in International Dispute Settlement: the Amicus Curiae Phenomenon, Center for International Environmental Law, December 2009, pp. 12-20 (2009), ; S. Kochevar, Amici Curiae in Civil Law Jurisdictions, 122 Yale Law Journal (2013), pp. 1659-63, . 12 Article 36.2 Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocol 11 and Protocol No. 14, Nov. 4, 1950, 213 U.N.T.S. 221. See also L. Hitoshi Mayer, supra n. 6, p. 911, and L. Van den Eynde, supra n. 6. 13 The judgments and advisory opinions of the Inter-American Court of Human Rights are available on . 14 IACtHR (Advisory Opinion) 24 September 1982, OC-1/82, "Other Treaties" Subject To The Consultative Jurisdiction Of The Court (Art. 64 American Convention On Human Rights), para. 5: the following organizations offered their points of view on the [advisory opinion] request as amici curiae: the Inter-American Institute of Human Rights, the International Human Rights Law Group, the International League for Human Rights and the Lawyers Committee for International Human Rights, and the Urban Morgan Institute for Human Rights of the University of Cincinnati College of Law. See also N. de Pierola y Bata and C. Loayza Tamayo, supra n. 2, p. 467.

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In 1988, the Court received its first amici briefs in the context of a contentious case; they were submitted during the merits stage of the Courts first judgment on the merits in the Velasquez Rodriguez case.17 The Court has continued to receive amici briefs in its contentious jurisdiction with increasing frequency, notwithstanding a significant decrease in participation throughout the 1990s. The Court received approximately18 40 amici briefs in the 1980s, 23 in the 1990s, 172 in the 2000s, and 177 from 2010 to 2013, for a total of approximately 412 amici briefs filed in connection to at least 98 judgments in the Courts contentious jurisdiction in the 26 years from 1987 to 2013.19 That is, amici have submitted briefs in roughly 35% of all IACtHR judgments issued from 1987 through 2013, including those on preliminary objections, merits, reparations, and interpretation. Most of these amici briefs were submitted in the last decade. Just in the four years from 2010-2013, the Court received approximately 42% of all amici submissions since 1987. This is roughly the same number of total briefs the Court received in the 21 years from 1987 through 2008. Nineteen per cent of all amici briefs submitted in the Courts contentious jurisdiction (or 78 out of 412) were filed in just two cases, both of them from 2012 - 1) Artavia Murillo et al. (2012), on in vitro fertilization, and 2) Atala Riffo and Daughters (2012), on same-sex adoptions.20 This means that the year in which the Court received the most amici briefs was 2012, with approximately 107 briefs. These numbers highlight the growing trend of amici submissions before the Inter-American Court. Many different types of organizations and persons have submitted amici briefs before the IACtHR since 1982. The following list provides the approximate percentage of the total of amici briefs submitted in the Courts contentious jurisdiction from 1988 through 2013, divided in broad categories of persons (legal and natural): 58% Human rights NGOs 24.5% Academic institutions 14% Private individuals 3% Domestic governments (e.g. legislators, local government institutions or officials, human rights institutes, or ombudsman, all of the respondent State) 0.5% Corporations (e.g. media and newspapers)

15 Exact numbers are difficult to ascertain from the text of the Courts judgments and advisory opinions because the Court often lists the names of all persons and institutions that appear on amici briefs, whether these were submitted individually or jointly with other persons or institutions. 16 See Table 1 below containing information on the number of amici submissions the Court has received in its advisory jurisdiction, as well as the identity of amici, as described in the Courts jurisprudence. 17 Interestingly, Diego Garca Sayn, who would eventually become President of the Court, signed one of the amici briefs at the reparations stage of the Velasquez Rodriguez case in 1989. 18 See supra n. 15. 19 See Table 2 below containing information on the number of amici submissions the Court has received in its contentious jurisdiction, as well as the identity of amici, as described in the Courts jurisprudence. 20 The respondent State that has attracted the most amici briefs is Mexico (followed by Costa Rica, Chile, Peru, and Venezuela). For example, 77% of amici briefs submitted in 2010 concerned Mexico. The respondent State with the most judgments in which amici briefs have been submitted is Peru, with roughly 16% of all such judgments.

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Another way of viewing amici participation in the Courts contentious jurisdiction is by further subdividing those general categories into regions or other subcategories, as follows: 29% International or regional human rights NGOs 15% Domestic human rights NGOs (of the respondent State) 14% Private individuals 8% Domestic universities or law schools (of the respondent State) 8% U.S. universities or law schools (including legal clinics, centers or programs) 8% Foreign human rights NGOs from the Americas (non U.S./European/domestic) 5% Foreign universities or law schools from the Americas (non U.S./European/domestic) 4% U.S. human rights NGOs 3% Domestic governments (e.g. legislators, local government institutions or officials, human rights institutes, or ombudsman, all of the respondent State) 3% European universities or law schools 2% European human rights NGOs 0.5% Corporations (e.g. media and newspapers) 0.5% United Nations (University for Peace) Amici before the IACtHR come from all over the world and represent broad sectors of society. Interestingly, although most amici are human rights NGOs (around 58%), most amici submissions come from international, regional or foreign organizations not based in the respondent State. Another noteworthy fact is that almost 40% of amici are not human rights NGOs. Instead, they are academic institutions, private individuals, government officials or agencies, and corporations. These numbers highlight the diversity in amici submissions and views presented before the IACtHR. 2.2 ROLE AND CONTRIBUTION OF AMICI CURIAE BEFORE THE IACtHR This diverse group of amici often provide the IACtHR with a fresh perspective on human rights issues and may contribute to the progressive development of international human rights law. Amici curiae also help create awareness of the Courts jurisprudence. They are distributed through local, national, regional, and international networks, and are often read by targeted audiences interested in the amicis work. 21 In this sense, amici often complement the promotional and awareness-raising work of the Court through press releases, social media, blogs,22 and other non-traditional media. This is important because not everybody interested in the Courts jurisprudence is subscribed to receive the Courts press releases about recent judgments (which sometimes contain short summaries of the judgments, and is a positive, but very recent innovation). Although it is difficult to gauge whether or to what extent amici are effectively influencing the decision-making process of the Inter-American Court, the recent surge in amici submissions suggests if nothing else that the Court has become an increasingly popular forum where 21 J. M. Pasqualucci, supra n. 9, p. 158. 22 See e.g. Corte IDH Blog .

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interested non-parties are attempting to influence the development of international human rights law in general, or at least the outcome in a particular case. In turn, perhaps unwittingly, the Court has gained an important ally in its public awareness efforts. Amici, through their numerous contacts across the world, are promoting greater knowledge and understanding of the Courts jurisprudence. 3. NORMATIVE FRAMEWORK FOR PARTICIPATION OF AMICI CURIAE BEFORE THE IACtHR Despite having received more than two hundred amici briefs in the 1980s, 90s and 2000s, it was not until 2008 and 2009 that the IACtHR provided a normative and jurisprudential definition, respectively, of the term amicus curiae, as well as more explicit guidelines concerning amici participation in its proceedings. The following sections describe first the development of the applicable normative framework, and then the development of jurisprudence and the Courts practice regarding amici participation before the IACtHR. 3.1 THE AMERICAN CONVENTION ON HUMAN RIGHTS AND THE COURTS STATUTE The American Convention on Human Rights23 (ACHR) created the IACtHR and determines the scope of its jurisdiction. Similarly, the Courts Statute24 provides further detail about the nature, structure and general workings of the IACtHR. Neither document specifically addresses amici submissions. The omission of norms that regulate amici submissions from these two main sources of law for the IACtHR is understandable when analysed within the context of the legal traditions of some OAS member states.25 In this context, the adoption of procedural norms is better left to the discretion of courts under their implicit power to regulate their proceedings. So it is in the Inter-American System. Article 60 of the ACHR and Article 25 of the Courts Statute allow the IACtHR the ability to develop its own rules of procedure aimed at regulating practical matters in the course of its proceedings. That is, the American Convention and the Courts Statute provide the IACtHR with broad discretionary powers in procedural matters. Since amici submissions are considered procedural matters, then the Court is legitimately understood to have implicit powers to regulate such submissions through its own Rules of Procedure. The next section addresses the development of these Rules as they relate to the participation of amici before the IACtHR. 3.2 THE COURTS RULES OF PROCEDURE

23 American Convention on Human Rights, OAS Treaty Series No. 36; 1144 UNTS 123; 9 ILM 99 (1969). 24 Statute of the Inter-American Court of Human Rights, OAS Res. 448 (IX-0/79), OAS Off. Rec. OEA/Ser.P/IX.0.2/80, Vol. 1 at 98. 25 N. de Pierola y Bata and C. Loayza Tamayo, supra n. 2, pp. 463-464.

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In its first 35 years, the Court has issued seven versions of its Rules of Procedure - in 1980, 1991, 1996, 2000, 2003, January of 2009, and November of 2009.26 The Courts first Rules of Procedure in 1980 made no explicit mention of amici briefs. However, Article 34(1) of the 1980 Rules stated that the Court may [] decide to hear [] in any [] capacity, any person whose [] statements seem likely to assist it in carrying out its functions. Presumably, this included amici briefs, since the IACtHR received and accepted submissions from dozens of amici in cases controlled by the 1980 Rules. Additionally, Article 34(2) of the 1980 Rules also stated that the Court may [] entrust any body, office, commission or authority of its choice with the task of obtaining information, expressing an opinion, or making a report upon any specific point, which further points to the participation of non-parties in the Courts proceedings. Furthermore, Article 38 allowed judges and the parties in a case to ask questions to other persons referred to in Article 34 during public hearings. Thus, the 1980 Rules recognized that the IACtHR could hear in its contentious jurisdiction - both in writing and in person - from persons who were not parties in a given case, so long as these assisted the Court in carrying out its functions. Article 53 of the 1980 Rules also suggested that amici could participate in written and oral proceedings in the Courts advisory jurisdiction as well. Said Article stated, the Court may apply any of the rules governing contentious proceedings to its advisory proceedings. Subsequent versions of the Courts Rules of Procedure have had similar wording. In effect, although the 1980 Rules did not explicitly authorize amici submissions, the Court routinely and liberally accepted such briefs in both its advisory and contentious jurisdictions.27 During the 1980s, amici submitted at least 40 briefs in relation to 5 judgments in the Courts contentious jurisdiction28 and at least 31 briefs in relation to 10 advisory opinions.29 It is worth noting that exact numbers are difficult to ascertain from the text of the judgments and advisory opinions because the Court often lists the names of all persons and institutions that appear on amici briefs, whether these were submitted individually or jointly with other persons or institutions. Having received approximately 70 amici briefs from dozens of individuals and organizations in the 1980s, the Court modified its Rules of Procedure in 1991. Article 34(1) was slightly modified from its 1980 version. Instead of allowing the IACtHR to hear in any capacity any person whose statements seem likely to assist it in carrying out its functions, the 1991 version of Article 34(1) allow the Court to hear such statements or opinions it deems useful. The Court also modified the text of Article 34(2) of the 1980 Rules of Procedure, which became Article 34(3) in the 1991 Rules. While the 1980 Rules allowed the Court to entrust any body, 26 The IACtHRs Rules of Procedure are available at and at . 27 Moyer, supra n. 1.; see also N. de Pierola y Bata and C. Loayza Tamayo, supra n. 2, p. 454. 28 See Table 2 below containing information on the number of amici submissions the Court has received in its contentious jurisdiction, as well as the identity of amici, as described in the Courts jurisprudence. 29 See Table 1 below containing information on the number of amici submissions the Court has received in its advisory jurisdiction, as well as the identity of amici, as described in the Courts jurisprudence.

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office, commission or authority with the task of obtaining information, expressing an opinion, or making a report on given issue in a case, the 1991 Rules expressly recognized that the Court may designate any person to do so, which is a broader criterion. The 1991 Rules are also more specific than the 1980 Rules in regulating advisory opinion proceedings. Article 54(3) of the 1991 Rules specifically authorized the President to invite or authorize any interested party to submit a written opinion on the issues covered by the request. Subsequent Rules of Procedure have kept this language. In 1996, the Court modified its Rules again and added a new chapter (Chapter IV) on procedures relating to evidence. Within this new chapter, a new Article 44 substituted the text of former Article 34 found in the 1980 and 1991 Rules. Specifically, Article 44(1) of the 1996 Rules allowed the Court at any stage of the proceedings to obtain [] any evidence it consider[ed] helpful and to hear any person whose evidence, statement or opinion it deem[ed] to be relevant (not just useful).30 In total, the Court received at least 23 amici curiae briefs in its contentious jurisdiction31 and 29 in its advisory jurisdiction in proceedings governed by the 1991 and 1996 Rules of Procedure.32 The IACtHR modified its Rules of Procedure four more times in the 2000s. The 2000 and 2003 Rules did not include any significant modification with regards to submissions by non-parties. Nevertheless, in the 2000s, the Court received amici briefs for the first time not only in the merits phase of contentious cases, but also in the reparations33 and compliance34 phases, as well as in requests for interpretation of a judgment.35 The big change in the Rules came in January of 2009, when the Court finally decided to include the term amicus curiae under the definitions listed in Article 2. For the first time, in Article 2(3) of the January 2009 Rules the Court defined the term amicus curiae as

the person who is unrelated to the case and to the proceeding and who submits to the Court a reasoning [sic] about the facts contained in the application or the legal considerations over the subject-matter of the proceeding, by means of a document or an argument presented in the hearing.

30 Notwithstanding this distinction, in later jurisprudence, the Court has stated it will admit documents submitted by amicus curiae when they contain information [that] is useful and relevant to the Court. IACtHR (Judgment) 26 September 2006, Almonacid Arellano et al. v. Chile, para. 80. 31 See Table 2 below containing information on the number of amici submissions the Court has received in its contentious jurisdiction, as well as the identity of amici, as described in the Courts jurisprudence. 32 See Table 1 below containing information on the number of amici submissions the Court has received in its advisory jurisdiction, as well as the identity of amici, as described in the Courts jurisprudence.. 33 IACtHR (Judgment) 31 May 2001, Cesti Hurtado v. Peru, para. 24. 34 IACtHR (Judgment) 28 November 2003 Baena Ricardo et al. v. Panama, paras. 20, 28, 31, and 46. 35 IACtHR (Interpretation) 2 August 2008 Miguel Castro Castro Prison v. Peru (2008), para. 4. These amici briefs did not address the merits of the case, but rather challenged the States request for an interpretation of the merits judgment. See also IACtHR (Interpretation) 29 January 2000, Cesti Hurtado v. Peru, paras. 31-33. In this interpretation judgment, the State questioned the legitimacy of the actions of a person who acted in the proceedings before the Court as both amici and as a witness proposed by the Inter-American Commission. (para. 31). After attempting to give a vague response to the State (para. 32), the Court decided that it would not address the matter any further because such a request was outside the scope of [an] interpretation of [the] judgment as contemplated in Article 67 of the American Convention and Article 58 of the (1996) Rules of Procedure. (para. 33)

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The January 2009 Rules also include a new Article 41 under Chapter II Written Proceedings - titled Arguments of Amicus Curiae, which states as follows:

The brief of one who wishes to act as amicus curiae may be submitted to the Tribunal, together with its annexes, at any point during the contentious proceedings, but within the term of 15 days following the public hearing. If the Court does not hold a public hearing, amicus briefs must be submitted within the term of 15 days following the Resolution setting deadlines for the submission of final arguments and documentary evidence. Following consultation with the President, the amicus curiae brief and its annexes shall be immediately transmitted to the parties for their information.

The IACtHR again modified its Rules of Procedure on November of 2009, which are still in effect at the time of this writing in 2014. In this current version of its Rules, the IACtHR modified the definition of the term amicus curiae under Article 2(3) to include institutions. More significantly, the Court modified what is now Article 44 (Arguments of Amicus Curiae) to explicitly allow amici briefs during proceedings for monitoring compliance of judgments and those regarding provisional measures, as well as to clarify some procedural aspects of amici submissions. According to the exposition of motives for the November 2009 Rules, the Court made these changes because [s]everal of the observations submitted to the Tribunal indicated the need to regulate the submission of the amici curiae.36 Specifically, the current text of Article 44 states the following:

1. Any person or institution seeking to act as amicus curiae may submit a brief to the Tribunal, together with its annexes, by any of the means established in Article 28(1) of these Rules of Procedure, in the working language of the case and bearing the names and signatures of its authors. 2. If the amicus curiae brief is submitted by electronic means and is not signed, or if the brief is submitted without its annexes, the original and supporting documentation must be received by the Tribunal within 7 days of its transmission. If the brief is submitted out of time or is submitted without the required documentation, it shall be archived without further processing. 3. Amicus curiae briefs may be submitted at any time during contentious proceedings for up to 15 days following the public hearing. If the Court does not hold a public hearing, amicus briefs must be submitted within 15 days following the Order setting deadlines for the submission of final arguments. Following consultation with the President, the amicus curiae brief and its annexes shall be immediately transmitted to the parties, for their information. 4. Amicus curiae briefs may be submitted during proceedings for monitoring compliance of judgments and those regarding provisional measures.

36 IACtHR, Statement of Motives for the Reform of the [November 2009] Rules of Procedure, p. 3, .

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In sum, after several modifications of its Rules of Procedure, the IACtHRs current Rules now explicitly regulate numerous aspects of amici submissions, including who may submit an amicus brief (anyone), the form of submission (fax, email, regular mail, etc.), when amici briefs must be submitted (15 days from the hearing or from the order requesting final arguments, and original briefs and/or annexes sent through electronic means must be received within 7 days), whether amici briefs may also be submitted during proceedings for monitoring compliance of judgments and those regarding provisional measures (yes), formal requirements (brief must bear the name and signature of amici and must be submitted in the working language of the case), and clarify that amici briefs will be forwarded to the parties. But the Rules do not answer all procedural questions concerning amici submissions before the Court. Some omissions in the Rules may seem inconsequential, such as a requirement to put a date on a brief37 (which even if not required is always a good practice), but the experience of some amici before the Court suggests that certain modifications to the Rules may still be required to provide further clarity and precision. The following sections address the development of the Courts jurisprudence with regards to amici submissions and highlight some areas where modifications to the Rules may be needed. 3.3 JURISPRUDENTIAL DEVELOPMENTS The IACtHRs jurisprudence did not provide greater insight about the role of amici briefs in the protection and promotion of human rights in the Inter-American System until the year 2008 (prior to the current version of the Courts Rules). First in Kimel and then in Castaeda Gutman,38 the Court stated

amici curiae briefs are filed by third parties which are not involved in the controversy but provide the Court with arguments or views which may serve as evidence regarding the matters of law under the consideration of the Court. Hence, they may be submitted at any stage before the deliberation of the pertinent judgment. Furthermore, in accordance with the usual practice of the Court, amici curiae briefs may even address matters related to the compliance with judgment. On the other hand, the Court emphasizes that the issues submitted to its consideration are in the public interest or have such relevance that they require careful deliberation regarding the arguments publicly considered. Hence, amici curiae briefs are an important element for the strengthening of the Inter-American System of Human Rights, as they reflect the views of members of society who contribute to the debate and enlarge the evidence available to the Court.39

Hence, in 2008 the Court recognized the following: (1) that amici may not be involved in the case or controversy before the Court; (2) that they may address matters of law;40 (3) that amici

37 See, e.g., IACtHR (Judgment) 25 October 2012, Massacres of El Mozote and Neighboring Locations v. Colombia, fn. 10. 38 The Court addressed objections concerning the alleged late submission of amici briefs in these cases, and eventually rejected those objections. 39 IACtHR (Judgment) 2 May 2008, Kimel v. Argentina, para. 16, and IACtHR (Judgment) 6 August 2008, Castaeda Gutman v. Mexico, para. 14. [internal citations omitted] 40 With regards to the question of whether amici may also address matters of fact, Article 2.3 of the 2009 Rules recognizes that amicus curiae may do so. Certainly, most amici briefs before the Court focus on the legal arguments in a given case. Some exceptions include an amici brief submitted in Benito Tide et al. v. Dominican

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may be submitted at any time prior to the Courts deliberation of the judgment; (4) that amici may be also submitted during the compliance stage of a judgment, and (5) that amici serve an important function insofar as they reflect the views of members of society upon matters of public interest and provide evidence on such matters. Despite these seemingly straightforward assertions in Kimel and in Castaeda Gutman, the Courts jurisprudence on the scope, timing, and purpose of amici curiae briefs has not been linear and constant. The next sections highlight ostensible contradictions in the Courts jurisprudence on amici submissions, with the aim of suggesting recommendations for greater clarity and consistency. 3.4 CRITERIA TO REJECT AMICI CURIAE PARTICIPATION BEFORE THE IACtHRs WRITTEN PROCEEDINGS An issue that has come up in the Courts jurisprudence is the criteria the IACtHR applies to admit or reject amici submissions. Whereas in the past the IACtHR admitted amici briefs as a matter of routine, the Court has shown signs that it may begin to reject amici briefs or at least those documents submitted as evidence or annexes to these briefs. A closer look at the Courts jurisprudence illustrates that, since at least 2009, the IACtHR has either rejected or at least discussed the admissibility of amici based on the following criteria: 1) impartiality; 2) timeliness and language; 3) identification of amici; 4) usefulness, and 5) unknown reasons. The following analysis of the Courts jurisprudence suggests that the IACtHR has often resolved similar questions regarding amici submissions in an inconsistent fashion, and that modifications to the Rules may be necessary for clarification purposes. 3.4.1 Impartiality In Pacheco Tineo (2013) - the last judgment available at the time of this writing the Court rejected an amicus brief from a person who was not unrelated to the case and to the proceedings, as required by the applicable Rules of Procedure. In that case, the Court received an amicus brief from a person who was linked to an organization that participated in the facts of the case.41 This case was litigated pursuant to the November 2009 Rules of Procedure, which defined an amicus curiae in Article 2(3) as a person [] unrelated to the case and the proceedings []. The State of Bolivia asked the Court to reject this amicus brief for lack of objectivity and impartiality,42 and the Court decided not to consider the amicus submission.43

Republic (judgment pending), where amici from Santa Clara University presented arguments on the admissibility of a supervening fact involving a 2013 decision by the Constitutional Court of the Dominican Republic that retroactively and arbitrarily denied Dominican nationality to Dominicans of Haitian descent. See also discussion of the extent to which the Court recognizes evidentiary weight to amici submissions, infra 3.4 41 IACtHR (Judgment) 25 November 2013, IACtHR (Judgment) 25 November 2013, Pacheco Tineo Family v. Bolivia, para. 10. Note: English translation is the authors. 42 IACtHR (Judgment) 25 November 2013, IACtHR (Judgment) 25 November 2013, Pacheco Tineo Family v. Bolivia, fn. 9. 43 IACtHR (Judgment) 25 November 2013, Pacheco Tineo Family v. Bolivia, para. 10. Note: English translation is the authors.

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In contrast, when the same issue of alleged impartiality came up in two previous cases [YATAMA (2005) and Acevedo Jaramillo (2006)], the Court admitted other amici briefs from people or entities related to the case or to the proceedings. In YATAMA v. Nicaragua (2005), the State denied any legal value to four amici briefs submitted during the proceedings or subsequent to the oral hearing. 44 The judgment does not specify the basis for the States objections. Interestingly, the Office of the Ombudsman of Nicaragua submitted one of the briefs.45 Despite the States objections, the Court decided to admit the briefs, considering that amici had an interest in the subject matter [] and provide[d] useful information.46 The fact that the Court accepted amici briefs from a governmental entity raises the question of how the Court defines the term unrelated to a proceeding, considering that the State is a single legal entity in international law.47 Another case in which the Court accepted amici briefs from (quasi) state actors is Five Pensioners (2003). In this case, the Court actually requested the representatives to submit a copy of the amicus curiae brief that the Office of the Ombudsman of Peru had presented before the Inter-American Commission on Human Rights.48 For some unexplained reason, the State not the representatives or the Commission submitted the requested amicus,49 which was presumably admitted by the Court. Similarly, in Acevedo Jaramillo et al. v. Peru (2006), the Court noted the Commissions objections to an amicus submitted by the Public Attorney of the Municipalidad Metropolitana de Lima (Metropolitan Municipality of Lima) on the grounds that the Municipality was the entity charged with complying with the domestic judgments in the case and that the Public Attorney had been accredited by the State to participate in the public hearing before the Court.50 Despite the fact that the Municipality of Lima was technically not unrelated to the case, the Court determined that the brief and the attachments thereto were admissible because they contain[ed] useful and relevant information about the factual substance of the [] case.51 The different results in these cases might be explained by the fact that the Pacheco Tineo case was decided pursuant to the November 2009 Rules, which define amicus curiae as a person unrelated to the case and to the proceedings, and the other cases were decided pursuant to the 2003 Rules, which do not define amicus curiae at all. Nevertheless, further clarification of what the Court understands by unrelated to a case may be helpful. In particular, the Court may want

44 IACtHR (Judgment) 23 June 2005, YATAMA v. Nicaragua, para. 120. 45 IACtHR (Judgment) 23 June 2005, YATAMA v. Nicaragua, para. 42. One of the other amicus briefs was submitted by the United Nations University for Peace. See para. 38. 46 IACtHR (Judgment) 23 June 2005, YATAMA v. Nicaragua, para. 120. 47 See e.g., the International Law Commissions commentary to Article 2 of its Articles on Responsibility of States for Internationally Wrongful Acts: Under many legal systems, the State organs consist of different legal persons (ministries or other legal entities), which are regarded as having distinct rights and obligations for which they alone can be sued and are responsible. For the purposes of the international law of State responsibility the position is different. The State is treated as a unity, consistent with its recognition as a single legal person in international law. International Law Commission, Report on the work of its fifty-third session (23 April 1 June and 2 July 10 August 2001), UN Doc A/56/10, 71, para. 6. 48 IACtHR (Judgment) 28 February 2003,Five Pensioners v. Peru, para. 39. 49 IACtHR (Judgment) 28 February 2003,Five Pensioners v. Peru, para. 49. 50 IACtHR (Judgment) 7 February 2006, Acevedo Jaramillo et al. v. Peru, paras. 62, 66, and 196. 51 IACtHR (Judgment) 7 February 2006, Acevedo Jaramillo et al. v. Peru, para. 196.

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to create an exception to the rule that all amici must be unrelated to a case or to the proceedings, especially where the amicus in question is a government entity that has useful information for the Court. The IACtHR would then have to weigh any concerns of impartiality raised by the parties or by the Court itself, but only as a matter of credibility and not as a matter of admissibility per se. After all, at least in some situations, amici briefs explicitly support one side over the other in a particular case. In this scenario, the issue of alleged impartiality should be weighed by the Court, but the amici submission should not be declared inadmissible. 3.4.2 Timeliness and language The IACtHR has also addressed in its jurisprudence the issue of the timeliness of amici submissions. In Kimel (2008) and Castaeda (2008), in response to objections concerning the alleged late submission of amici briefs in these cases, the Court clarified that, pursuant to the 2003 Rules, amici briefs may be submitted at any stage before the deliberation of the pertinent judgment.52 The Court then rejected the objections over the timeliness of these amici. It is worth noting that this is a judge-made rule and that the applicable Rules of Procedure did not indicate such deadlines. The Court later modified its Rules in 2009 to reflect this practice. A similar issue over the timeliness of amici submissions came up in Tristan Donoso (2009). In that case, an individual submitted an amicus brief, presumably by electronic means.53 The then-applicable 2003 Rules did not specifically regulate the submission of amici briefs (see supra 3.1), but they did state in Article 26(1) that the original of any other written material addressed to the Court had to be submitted within 7 days of its electronic filing. The individual in question either did not submit the original amicus brief at all, or did so after the 7-day deadline had elapsed (the judgment is silent on this issue), and the Court rejected his brief.54 For reasons that are not altogether clear, even though the Court received the originals of two other amici briefs (from Pedro Nikken and Carlos Ayala Corao, and CELS, respectively) after the 7-day deadline had elapsed, the Court nonetheless accepted these.55 Finally, in Nadege Dorzema (2012) the Court rejected another amicus curiae brief submitted late by CELS. The November 2009 Rules that governed this case allowed amici submissions up to 15 days after the public hearing. Since CELS submitted its amicus after this deadline, the Court rejected the brief.56 As will be discussed below, the Court may want to extend its 15-day deadline to ensure that amici have adequate time to prepare useful and relevant submissions that incorporate the wealth of information usually presented in public hearings and that respond to the Judges questions and concerns raised in those hearings. The Court has also addressed timing issues in the context of amici submissions in a language other than the official language in a given case. None of the previous Rules specifically addressed this issue, until Articles 44(1) and 44(3) of the November 2009 Rules explicitly

52 IACtHR (Judgment) 2 May 2008, Kimel v. Argentina, para. 16, and IACtHR (Judgment) 6 August 2008, Castaeda Gutman v. Mexico, para. 14. 53 IACtHR (Judgment) 27 January 2009, Tristan Donoso v. Panama, para. 10. 54 Ibid. 55 Ibid. 56 IACtHR (Judgment) 24 October 2012, Nadege Dorzema et al. v. Dominican Republic, fn. 9.

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required that amici briefs be submitted in the working language of the case and within 15 days following the public hearing. It is unclear how the Court addressed this language issue before the November 2009 Rules came into effect, as the jurisprudence and practice was either silent or seemingly contradictory. For example, in Mayagna (Sumo) Awas Tingni Community (2001), a Canadian organization submitted an amicus brief in English and then submitted the required Spanish translation nine months later!57 In that same case, three U.S. organizations submitted separate briefs in English, and there is no indication in the judgment as to whether they ever submitted the required Spanish versions.58 The 2000 Rules that governed this case were silent on the issue of the language in which amici had to be submitted. The judgment does not indicate whether the Court rejected these briefs. In turn, in Reveron Trujillo (2009) one amicus brief was submitted in the wrong language (English) more than two months following the public hearing, and in the right language (Spanish) a week later.59 The Court did not reject the brief, as the applicable 2003 Rules did not specify a deadline for filing amici briefs. As mentioned above (see supra 3.1), the January 2009 Rules required amici briefs to be submitted within 15 days following the public hearing, and the November 2009 Rules added a requirement that amici be submitted in the working language of a case. Nevertheless, these Rules are silent on the issue of amici briefs submitted in the wrong language within the established deadline, and then in the right language once the deadline had elapsed. This has created some inconsistency in the Courts jurisprudence. In Rosendo Cantu (2010), for example, the Court accepted two amici briefs that had been submitted on time but in the wrong language (English), even though the Spanish translations were received after the 15-day deadline had elapsed (pursuant to Article 41 of the January 2009 Rules). In admitting one of the briefs, the Court simply stated that the language requirement had been satisfied with the sending of the brief in Spanish, even though the Court received the Spanish version more than a month following the public hearing.60 The other brief was submitted in Spanish a day after the deadline had elapsed, but since an English version had been submitted on time, the Court admitted the Spanish version without addressing the fact that the brief may have been time-barred.61 A year later, the Court seems to have changed its criteria on this issue. Despite the Courts precedents in Reveron Trujillo (2009) and in Rosendo Cantu (2010), the Court in Fontevecchia and DAmico (2011) rejected an amicus brief from the NGO Article 19 that had been submitted on time but in the wrong language (English), because the Court did not receive the translation into the working language (Spanish) within the 15-day deadline.62 57 IACtHR (Judgment) 31 August 2001, Mayagna (Sumo) Awas Tingni Community v. Nicaragua, para. 41. 58 IACtHR (Judgment) 31 August 2001, Mayagna (Sumo) Awas Tingni Community v. Nicaragua, paras. 42, 52, and 61. 59 IACtHR (Judgment) 30 June 2009, Reveron Trujillo v. Venezuela, para. 10. 60 IACtHR (Judgment) 31 August 2010, Rosendo Cantu el al. v. Mexico, fn. 14. 61 IACtHR (Judgment) 31 August 2010, Rosendo Cantu el al. v. Mexico, fn. 19. 62 IACtHR (Judgment) 29 November 2011, Fontevecchia and DAmico v. Argentina, fn. 7.

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The Court reiterated the Fontevecchia and DAmico (2011) criteria and clarified its reasoning on this matter in Velez Restrepo and Family (2012). In that case, the State asked the Court not to accept an amicus brief because it had been submitted outside of the time frame established in the Courts Rules of Procedure.63 It is unclear whether the brief had been first submitted in English, but the judgment states that the Court received the brief in the Spanish language after the 15-day deadline had elapsed.64 The Court applied Article 44 of the November 2009 Rules and decided as follows:

[the] brief should have been presented in the language of the case, which is Spanish, at any time during contentious proceedings for up to 15 days following the public hearing. The Court considers that, since the organization Article 19 submitted the brief, in Spanish, four days after this time frame had expired, the brief is not admissible because it is time-barred.65

In the latest judgment where this issue has come up, the Court reiterated its recent tendency to reject amici briefs not submitted in the correct language within the specified deadline, but it offered a different rationale for such rejection. In Artavia Murillo et al. (2012), the Court rejected two amici briefs because they were submitted after the deadline had elapsed.66 This is not controversial. But in this case the Court also rejected a third brief because its translation into the official language of the case was submitted outside of the 21-day deadline provided for in Article 28(1) of the Courts November 2009 Rules that regulates the submission of original documents or annexes.67 The Court did not explain why Article 28(1), rather than Article 44, would apply to a translation of a document submitted within the appropriate timeframe. Presumably, the Court interpreted the word original in Article 28(1) to encompass translations, even though that rule does not address this specific procedural question. Although the Court arrived at the same result in Velez Restrepo and Family (2012) and in Artavia Murillo et al. (2012), the former decision which is anchored in Rule 44, seems to be better reasoned than the later which is anchored in Rule 28(1). The different reasoning in these similar cases strongly suggests that the Court should modify its Rules of Procedure to specifically regulate the time frame in which amici should submit translations of briefs submitted in a language other than the official one for a given case. Such modification would provide clarity to persons and institutions that spend much time, money, and effort preparing and translating amicus curiae submissions for the Courts consideration. 3.4.3 Uselessness Since its first Rules of Procedure, the Court has always required that submissions in a case be useful or relevant. Although the Court has not defined what makes an amici useful or relevant, it

63 IACtHR (Judgment) 3 September 2012, Velez Restrepo and Family v. Colombia, para. 67. 64 IACtHR (Judgment) 3 September 2012, Velez Restrepo and Family v. Colombia, paras. 10 and 67. 65 IACtHR (Judgment) 3 September 2012, Velez Restrepo and Family v. Colombia, para. 68. 66 IACtHR (Judgment) 28 November 2012, Artavia Murillo et al. (in vitro fertilization) v. Costa Rica, para. 14. 67 IACtHR (Judgment) 28 November 2012, Artavia Murillo et al. (in vitro fertilization) v. Costa Rica, para. 15.

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has rejected several amici because of their failure to meet this criteria. For example, in Gomes Lund et al. (Guerrilha do Araguaia) (2010), the Court mentioned that it received other briefs that were time-barred or were not useful or related to the objective of the present case, and as such, they [were] not admitted nor mentioned in the [] judgment.68 Similarly, in Lopez Mendoza (2011) the Court noted in a footnote that it received other briefs that are not of any use in the [] case, and as such, [were not] admitted nor mentioned in [the] judgment.69 The Court did not specify who submitted such briefs or why the issues they addressed were useless or irrelevant. To avoid such vagueness and to clarify its criteria, the Court may want to describe in its judgments the reasons why it rejects amici submissions. 3.4.4 Identity In Tristan Donoso (2009), by order of the President of the Court, the Secretariat requested that an individual who submitted an amicus brief also submit a copy of his identity document, which is not something that the Rules of Procedure have ever required.70 It is not clear from the judgment whether the individual complied with this request, or whether the Court rejected the brief because the individual either failed to submit an original version of the electronic submission, or did so after the 7-day deadline had elapsed. The issue of the identity of amici came up again in Radilla Pacheco (2009). In this case, the Court stated the following in a footnote:

some graduate students of the Law School of the Universidad Nacional Autnoma de Mxico presented to the Tribunal a document [...] in the quality of AMICI CURIAE. However, the mentioned document does not state the names and identification data of the students that present the brief, reason for which, following the instructions of the President of the Tribunal, the sender was requested, pursuant [to] Article 27(1) of the [January 2009] Rules of Procedure of the Tribunal, to indicate the name, signature and identification information of the people who signed the mentioned document. Said information was not received.71

It is unclear from the judgment whether the Court rejected this amici brief. In any case, the applicable January 2009 Rules did not specifically require amici to provide their names and identification data. In fact, Article 27(1) of those Rules regulated party submission, not amici or non-party submissions. Rather, it was the President of the Court who required this information. Subsequently, the Court modified its Rules to require amici briefs to identify the names and signatures of its authors.72 Although current practice suggests that amici are not required to submit a copy of their identification documents, the Court may want to clarify how amici should identify themselves before the Court and who has the obligation to do so, whether only those who actually wrote it, or also of those who sign-on to it to express their support of the brief.

68 IACtHR (Judgment) 24 November 2010, Gomes Lund et al. (Guerrilha do Araguaia) v. Brazil, fn. 9. It is unclear whether these useless briefs were intended to be from amici. 69 IACtHR (Judgment) 1 September 2011, Lopez Mendoza v. Venezuela, fn. 6. 70 IACtHR (Judgment) 27 January 2009, Tristan Donoso v. Panama, para. 10. 71 IACtHR (Judgment) 23 November 2009, Radilla Pacheco v. Mexico, fn. 6. 72 IACtHR November 2009 Rules of Procedure, Article 44.1

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3.4.5 Unknown criteria Finally, the Court seems to have rejected other amici briefs based on unknown criteria. In La Cantuta (2006), for example, the Court noted that the State filed its objections to an amicus submission, but the Court never explained the reasons for the objections or whether the Court accepted or rejected the amicus. Similarly, in Claude Reyes et al. (2006), the Court also noted that the State submitted comments and observations on one of the amicus briefs (from CEJIL), but there is no other mention in the judgment about the nature of these observations or whether the Court took them into consideration.73 The Court may want to incorporate in its judgments more information that would allow amici and the general public to understand the nature of objections to amici briefs and the Courts decision on each matter. In conclusion, in the last 30 years, the Court has responded to evolving scenarios of amici submissions in its contentious jurisdiction by modifying its Rules of Procedure accordingly. Additional modifications to the Courts rules and practices seem necessary or at least useful to further clarify procedural questions, particularly involving timing and language issues of amici submissions. 3.5 CRITERIA TO REJECT AMICI CURIAE PARTICIPATION BEFORE THE IACtHRs ORAL PROCEEDINGS Another issue of controversy in the IACtHRs contentious jurisdiction is whether amici may participate orally in public hearings. As stated above, the Courts Rules of Procedure have always allowed other persons (meaning non-parties in a case) to participate in the Courts written and oral proceedings. A reasonable interpretation of other persons would seem to include amici curiae briefs submitted by persons unrelated to the case or to the proceedings (which is the definition of an amicus curiae under the 2009 Rules). In fact, amici curiae have regularly participated in public hearings in the Courts advisory jurisdiction at least since 1984.74 Nevertheless, their participation in hearings in contentious cases has been very limited. In The Last Temptation of Christ (Olmedo Bustos et al.) (2001), for example, several individuals requested to be heard as amici curiae in all the oral and written instances that the rules of procedures allow.75 It is unclear whether these individuals were related to the case or to the proceedings. On instructions from the President, the Secretariat informed the alleged amici that until the reparations stage, the possibility of participating in the proceedings before [the] Court was restricted to the parties to the respective case [] and, consequently, it was not possible to accede to their request to be heard as collaborating third parties.76 The fact that the President characterized these alleged amici as collaborating third parties suggests that they 73 IACtHR (Judgment) 19 September 2006, Claude Reyes et al. v. Chile, para. 42. 74 For some early examples, see IACtHR (Advisory Opinion), OC-4/84, 19 January 1984, Proposed Amendments of the Naturalization Provisions of the Constitution of Costa Rica, and IACtHR (Advisory Opinion), OC-13/1993, 16 July 1993, Certain Attributes of the Inter-American Commission on Human Rights (Arts. 41, 42, 44, 46, 47, 50 and 51 of the American Convention on Human Rights). 75 IACtHR (Judgment) 5 February 2001,The Last Temptation of Christ (Olmedo Bustos et al.) v. Chile, para. 21. 76 Ibid.

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were not unrelated to the case. Back in 2001, the Court only allowed the parties to a case (meaning the Inter-American Commission and the respondent State) to participate in hearings before the Court. In Claude Reyes et al. (2006), the Court again rejected the request of amici to participate in a public hearing. The Court described the controversy in the following terms:

[T]he Asociacin por los Derechos Civiles (ADC) submitted a brief in which, in its capacity as one of the original petitioners before the Commission, it requested authorization to intervene in the public hearing on April 3, 2006. On the instructions of the President, the Secretariat admitted the brief submitted by ADC as an amicus curiae. Regarding the request to take part in the public hearing, it did not allow the Association to participate directly, informing it that only those persons accredited by the parties to the case could present their arguments.77

Neither of these cases was litigated under the 2009 Rules, which allow amici to present oral arguments during hearings. Nevertheless, under the 2009 Rules the Court would presumably not have accepted these briefs either, as the alleged amici seemed to be related to the case or the proceedings something that Article 2.3 of the 2009 Rules prohibit. In sum, it seems that prior to the November 2009 Rules of Procedure, the Court interpreted its previous Rules liberally when it came to participation of amici in public hearings on advisory opinion requests, and conservatively when it came to hearings in its contentious jurisdiction. Since the current Rules allow for amici participation in oral hearings, this apparent jurisprudential inconsistency seems to have been resolved. Nevertheless, no amici has actually requested to participate in oral hearings of contentious proceedings pursuant to the current Rules, so this issue is yet to be addressed by the Court in more modern jurisprudence. 3.6 IDENTIFICATION OF AUTHORSHIP AND DESCRIPTION OF CONTENT Other related issues that have come up in the Courts jurisprudence include the questions of identifying the authors of amici briefs and of describing the contents thereof. Knowing who submits an amicus curiae brief is important. The Court, for example, needs to know the identity of the authors to determine, pursuant to the current Rules (see supra 3.4.1), whether a person not unrelated to the case submitted a brief. But the identity of amici authors is also important and useful information for the public. This information may reflect the prestige of a person or group whose opinion is highly regarded, and it may reflect the support of a wide sector of society or of a sector that may be particularly affected by the outcome in a case. For example, corporations, particularly those involved in providing news and media services, have often filed amici briefs in cases involving the right to freedom of expression and information, as the outcome of such cases could have an impact on their ability to freely disseminate information to the public.78

77 IACtHR (Judgment) 19 September 2006, Claude Reyes et al. v. Chile, para. 25. 78 See, e.g., IACtHR (Advisory Opinion), OC-7/86, 29 August 1986, Enforceability of the Right to Reply or Correction (Arts. 14(1), 1(1) and 2 American Convention on Human Rights), para. 5, in which the following corporations submitted amici briefs: Inter-American Press Association, World Press Freedom Committee, American Newspaper Publishers Association, Federation International des Editeurs de Journaux, The Copley Press, Inc., The Miami Herald, Newsweek, USA Today, The Wall Street Journal, and The International Herald Tribune. In the

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Researchers or journalists may also be interested in knowing the identity of amici authors to ascertain whom to contact to obtain more information about the content and purpose of an amici submission. Additionally, knowing the identities and types of amici authors is important to assess the level of interest and attention that may exist over a particular case or legal issue. Despite the importance of identifying amici authors, the Court often omits this information from its judgments, making it impossible to know which persons, organizations, or institutions submitted briefs in a particular case. For example, in Quintana Coello et al. (2013), the Court simply mentioned that a group of 68 people also filed an amicus curiae brief.79 The reader cannot tell who these people are or what issues they address in their amicus brief. Furthermore, the current description of the content of amici curiae briefs in the Courts judgments is also insufficient. The Courts latest practice is to include a paragraph that mentions the date when the Court received amici briefs and (at least most of the times) the names of the people who signed them. Sometimes the Court also includes in a footnote the names of other people or organizations that are on the brief or that have signed-on to it. But the Court often does not give any indication of the content of each brief or whether the brief supports a particular position or party. Only rarely does the Court provide more details about the content of such amici briefs. In fact, the Court has only done so in 17 judgments, 3 of them between 1997-2000 and the other 14 between 2009-2011.80 This amounts to roughly 17% of the approximately 98 judgments in which the Court has received amici briefs through 2013. For example, the latest case in which the Court provided at least some insight into the issues addressed in amici briefs was in 2011 in Lopez Mendoza. In this case, the Court described the content of an amici brief by stating that it develop[ed] diverse ideas regarding judicial guarantees and political rights.81 Granted, this is certainly not optimal information that would allow the reader to ascertain any nuances in the legal arguments submitted by amici, but such brief descriptions of content at least allow the reader or researcher to understand the general scope and purpose of the amici. Similarly, in Chocron Chocron (2011) the Court again gave a

Courts contentious jurisdiction, for example, the following media corporations filed amici briefs in Herrera Ulloa (2004): Commitee to Protect Journalists, The Hearst Corporation, The Miami Herald Publishing Company, El Nuevo Da, La Prensa, The Reforma Group, Reuters Ltd., El Tiempo, and The Tribune Company. IACtHR (Judgment) 2 July 2004), Herrera Ulloa v. Costa Rica, paras. 38-49. See Table 2, below, for more cases. 79 IACtHR (Judgment) 23 August 2013, Supreme Court of Justice (Quintana Coello et al.) v. Ecuador, para. 8. 80 IACtHR (Judgment) 13 September 1997, Genie Lacayo v. Nicaragua; IACtHR (Judgment) 17 September 1997, Loayza Tamayo v. Peru; IACtHR (Judgment) 25 November 2000, Bamaca Velasquez v. Guatemala; IACtHR (Judgment) 20 November 2009, Uson Ramirez v. Venezuela; IACtHR (Judgment) 17 November 2009, Barreto Leiva v. Venezuela; IACtHR (Judgment) 6 July 2009, Escher et al. v. Brazil; IACtHR (Judgment) 23 November 2009, Radilla Pacheco v. Mexico; IACtHR (Judgment) 23 September 2009, Garibaldi v. Brazil; IACtHR (Judgment) 30 June 2009, Reveron Trujillo v. Venezuela; IACtHR (Judgment) 24 November 2009,Las Dos Erres Massacre v. Guatemala; IACtHR (Judgment) 31 August 2010, Rosendo Cantu el al. v. Mexico; IACtHR (Judgment) 30 August 2010, Fernandez Ortega et al. v. Mexico; IACtHR (Judgment) 23 November 2010, Velez Loor v. Panama; IACtHR (Judgment) 24 November 2010, Gomes Lund et al. (Guerrilha do Araguaia) v. Brazil; IACtHR (Judgment) 26 November 2010, Cabrera Garcia and Montiel Flores v. Mexico; IACtHR (Judgment) 1 July 2011, Chocron Chocron v. Venezuela, and IACtHR (Judgment) 1 September 2011, Lopez Mendoza v. Venezuela. 81 IACtHR (Judgment) 1 September 2011, Lopez Mendoza v. Venezuela, para. 10.

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brief description of the content of an amicus brief, stating that it addressed the scope of judicial and effective judicial protection in the case.82 The most complete information about the identity of amici and the content of their briefs is probably found in the following cases decided between 2009 and early 2011: Cabrera Garcia and Montiel Flores (2010); Gomes Lund et al. (Guerrilha do Araguaia) (2010); Velez Loor (2010), Rosendo Cantu (2010); Fernandez Ortega (2011), and Las Dos Erres Massacre (2009). For example, this is how the Court described amici submissions in Cabrera Garcia and Montiel Flores (2010):

The Court also received twelve amicus curiae briefs from the following individuals, institutions and organizations: The Human Rights Clinic of the Human Rights Program at Harvard Law School, concerning the admissibility of the alleged victims arguments regarding the duration of the unlawful detention and abuse suffered during their detention; the Human Rights Clinic at the University of Texas, concerning the vulnerability of persons detained without an arrest warrant and the need to be brought before a court, without delay; Gustavo Fondevila, a professor at the Centro de Investigacin y Docencia Econmica (Economic Research and Teaching Centre) (CIDE), concerning unlawful detentions carried out by the Mexican Army and the legalization of torture under the concept of coerced confession; [etc.].83

In that case, the Court also identified in footnotes the date in which the briefs were submitted and the names of those who signed the briefs. Similarly, in Gomes Lund et al. (Guerrilha do Araguaia) (2010) the Court identified amici as follows:

the Court received eight amicus curiae briefs from the following persons and institutions: a) Open Society Justice Initiative, Commonwealth Human Rights Initiative, Open Democracy Advice Centre and South African History Initiative, in relation with the right to truth and access to information; b) Grupo de Investigacin de Derechos Humanos en la Amazona [Human Rights Investigation Group in the Amazon], in regard to the Amnesty Law; [] f) Global Justice, regarding the incompatibility of the Brazilian Amnesty Law in relation with the American Convention; [etc.].84

In Velez Loor (2010) the Court did not provide such detailed descriptions of the identity and content of amici submissions, but it did specify that the amicus submitted in that case addressed issues of discrimination, torture, liberty, and prison conditions.85 In Rosendo Cantu (2010),86 Fernandez Ortega (2011),87 Las Dos Erres Massacre (2009),88 and several others, the Court also provided a brief description of the content of each amicus brief. In light of the importance of properly identifying both the authorship and the content of amici submissions, the Court should consider taking up again the practice of including this minimum information in its judgments. 82 IACtHR (Judgment) 1 July 2011, Chocron Chocron v. Venezuela, para. 12. 83 IACtHR (Judgment) 26 November 2010, Cabrera Garcia and Montiel Flores v. Mexico, para. 9 and fns. 9 through 20. [internal citations omitted] 84 IACtHR (Judgment) 24 November 2010, Gomes Lund et al. (Guerrilha do Araguaia) v. Brazil, para. 8 and fns. 9 through 17. 85 IACtHR (Judgment) 23 November 2010, Velez Loor v. Panama, para. 12. 86 IACtHR (Judgment) 31 August 2010, Rosendo Cantu el al. v. Mexico, para. 9. 87 IACtHR (Interpretation) 15 May 2011, Fernandez Ortega et al. v. Mexico, para. 9. 88 IACtHR (Judgment) 24 November 2009,Las Dos Erres Massacre v. Guatemala, para 11.

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3.7 INCORPORATION INTO BODY OF EVIDENCE Another issue that has come up in the Courts jurisprudence is whether the Court may cite amici briefs in its judgments to support factual assertions and legal arguments. The Rules allow amici to address factual matters in a case, not just legal issues.89 Does that mean that the Court can consider as evidence the information contained in amici briefs? In Pacheco Tineo (2013) the Court clarified that in no case could an amicus curiae brief be considered as evidence per se.90 Nevertheless, the Courts jurisprudence seems to suggest otherwise. In several judgments, the Court has cited and incorporated as evidence either the content of the amici briefs or their supporting documentation. For example, in the Proven Facts section of one of its latest judgments Mendoza et al. (2013), the Court cited an amicus brief to show the factual limitations or constraints of a specific domestic law.91 In that same case, the Court cited another amicus in a rather poetic way to describe as fact the effect of life imprisonment on a detained person, particularly when the person is a child.92 In Mohamed (2012), the Court also cited an amicus several times to describe as fact the applicable domestic law and legal remedies available to the petitioner.93 Similarly, in Massacres of El Mozote and Nearby Places (2012) the Court cited an amicus submitted by the Salvadoran Ombudsman as evidence of the fact that the Ombudsman believed that the Salvadoran Amnesty Law violated that States international human rights law obligations.94 In Cotton Field (2009), the Court also cited three amici briefs for the proposition that the murder of the three women in that case could be characterized as femicide.95 In Almonacid Arellano (2006), the Court admitted into evidence documents submitted along with an amicus brief, as the Court considered that these documents were useful and relevant to the case.96 Finally, in Acevedo Jaramillo et al. (2006), the Court admitted into the body of evidence an amicus brief submitted by the Peruvian Ombudsmans Office and the attachments thereto, pursuant to Rule 45(1) of the 2003 Rules.97 The Ombudsmans amicus and the attachments thereto were not only admitted into evidence, they were cited by the Court as evidence to prove

89 See, inter alia, supra n. 26, Article 34.2 of the 1980 IACtHR Rules of Procedure and Article 2.3 of the January and November 2009 Rules of Procedure. 90 IACtHR (Judgment) 25 November 2013, Pacheco Tineo Family v. Bolivia, para. 10. Note: An English language version of this judgment was not available at the time of this writing, so the translation is the authors. 91 IACtHR (Judgment) 14 May 2013, Mendoza et al. v. Argentina, fn. 48, citing an amicus brief submitted by a local NGO. 92 IACtHR (Judgment) 14 May 2013, Mendoza et al. v. Argentina, fns. 390 and 391, stating life imprisonment means the end of the road of life when it has barely begun, and Unlike an adult, a minor has not had the complete opportunity to plan his work or studies in order to address the challenges posed by today's societies, respectively. 93 IACtHR (Judgment) 23 November 2012, Mohamed v. Argentina, fns. 27, 45, and 46. 94 IACtHR (Judgment) 25 October 2012, Massacres of El Mozote and Neighboring Locations v. Colombia, fn. 475. 95 IACtHR (Judgment) 16 November 2009, Gonzalez et al. (Cotton Field) v. Mexico, fn. 134. 96 IACtHR (Judgment) 26 September 2006, Almonacid Arellano et al. v. Chile, para. 80. 97 IACtHR (Judgment) 7 February 2006, Acevedo Jaramillo et al. v. Peru, para. 197.

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that there were over 500 judgments pending compliance by the Executive Branch, which was a key factual issue in the case.98 Interestingly, the Court has also treated as evidence amici briefs submitted in domestic proceedings. For example, in Operation Genesis (2013), the Court supported many of its findings by citing an amicus curiae brief submitted before the Colombian Constitutional Court by the Colombian Ombudsmans Office. Although the amicus lacked a date, the Inter-American Court cited it as evidence at least six times to support several of the Courts factual findings.99 Also, in Atala Riffo and Daughters (2012), the Court again cited an amicus brief submitted in domestic courts by several psychological associations to support the factual assertion that children of same sex parents do not suffer developmentally.100 Amici briefs provide factual support not only for the Courts judgment, but also for the Judges separate opinions in a case. For example, in his Concurring Opinion in Fermin Ramirez (2005) Judge Sergio Garca Ramrez cited amici briefs to support his analysis of the issue of dangerousness as a factor for the determination of criminal punishments.101 Similarly, Judge Antnio Augusto Canado Trindade cited amici briefs to support his Concurring Opinions in at least two cases. In La Cantuta (2006), even though the judgment never mentioned whether the Court accepted or rejected an amicus brief submitted by the prestigious Peruvian NGO Instituto de Defensa Legal (Legal Defense Institute), in his Separate Opinion Judge Canado Trindade quoted at length the factual claims and legal arguments made in this amicus concerning Perus amnesty laws.102 Judge Canado Trindade referenced amici submissions again in Miguel Castro Castro Prison (2008), quoting them at length in his Concurring Opinion.103 In contrast, the Courts practice at least up to 1999 was to exclude amici briefs from the record, and judges did not cite them either in the judgment or in their separate opinions. For example, in Loayza Tamayo (Merits) (1997), in response to an objection by the State on the admissibility of certain amici briefs, the President of the Court informed the State that documents of this type are added to the file without being formally incorporated into the record of the proceedings, but he also stated that the Court would evaluate those documents in due course.104 Similarly, in Paniagua Morales et al. (Merits) (1998),105 in Benavides Cevallos (1998),106 in Constitutional

98 IACtHR (Judgment) 7 February 2006, Acevedo Jaramillo et al. v. Peru, fn. 151. 99 IACtHR (Judgment) 20 November 2013, Afro-descendant Communities Displaced from the Cacarica River Basin (Operation Genesis) v. Colombia, fns. 279, 283, 284, and 606-608. 100 IACtHR (Judgment) 24 February 2012, Atala Riffo and Daughters v. Chile, fn. 150. 101 IACtHR (Concurring Opinion of Judge Sergio Garca Ramrez) 20 June 2005, Fermin Ramirez v. Guatemala, para. 34. 102 IACtHR (Separate Opinion of Judge Antnio Canado Trindade) 29 November 2006, La Cantuta v. Peru, paras. 34-35. 103 IACtHR (Separate Opinion of Judge Antnio Canado Trindade) 25 November 2006, Miguel Castro Castro Prison v. Peru, paras. 6-7. 104 IACtHR (Judgment) 17 September 1997, Loayza Tamayo v. Peru, para. 22. 105 IACtHR (Judgment) 8 March 1998,White Van (Paniagua Morales et al.) v. Guatemala, fn. 3. 106 IACtHR (Judgment) 19 June 1998, Benavides Cevallos v. Ecuador, fns. 2 and 3, stating As is the practice of the Court with documents of this nature, [amici briefs are] not formally introduced into the case file.

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Court (1999),107 and in Ivcher Bronstein (1999),108 the Court stated that amici briefs were not formally added to the case file. These cases highlight an apparent conflict of criteria on the issue of whether and to what extent amici briefs may be considered evidence in a case before the Court. While the Court in Pacheco Tineo (2013) declared that amicus briefs may not be considered evidence, that seems to have been true only up to 1999, when the Court did not incorporate them into the body of evidence. But the cases cited here suggest that, at least from 2005 through 2013, the Court did incorporate as evidence the content of amicus briefs and their supporting documentation, and the Court also frequently cited amici briefs in its judgments to support factual assertions in a case. This recent practice also seems to be consistent with Article 2(3) of the current Rules, which allow amici to address factual matters. It may be necessary for the Court to either revisit its blanket declaration in Pacheco Tineo (2013) or modify its Rules to clarify and reflect the better and more recent practice of incorporating amicis useful and well-supported factual assertions into the body of evidence. 4. CONCLUSION AND RECOMMENDATIONS The Inter-American Court of Human Rights has received more than 500 amici curiae briefs in its combined contentious and advisory jurisdictions between 1982 and 2013. In those 32 years, the Court has issued seven versions of its Rules of Procedure and has modified its practice several times. This article highlighted the development of those changes in the Courts procedure and practice as they relate to amici curiae submissions. The analysis of such norms and jurisprudence presents an image of a Court that is willing to adapt to new challenges and provide non-parties the opportunity to express their opinions on the applicable facts and law in a given case. In light of this history, this article recommends the following modifications of the Courts Rules of Procedure or of the Courts practice to allow more meaningful participation of amici curiae in the development of the Courts jurisprudence. One of the most pressing issues that may require a modification of the Courts Rules of Procedure involves the uncertainty with regards to the time frame in which amici should submit translations of briefs originally presented in a language other than the official one for a given case. As highlighted above, the Court sometimes resolves such questions by looking at either Article 44 or Article 28(1) of its Rules, even though neither of those Rules specifically addresses this issue. A related matter involves the deadline for submitting amici briefs. Article 44(3) of the November 2009 Rules require amici to submit briefs within 15 days from the date of the public hearing or from the date of the order requesting the submission of final written arguments. For many amici, this hard deadline is very difficult to meet. Usually, the best briefs are those that are informed by what transpires in the public hearing in a given case. Such hearings allow parties and non-parties alike to hear witness and expert witness testimony, as well as the Judges questions, all of which

107 IACtHR (Judgment) 24 September 1999, Constitutional Court v. Peru, fn. **. (Note: The judgment identifies this footnote with two asterisks.) 108 IACtHR (Judgment) 24 September 1999, Ivcher Bronstein v. Peru, fn. **. (Note: The judgment identifies this footnote with two asterisks.)

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provides amici with a better understanding of the key legal issues before the Court. Hearings are of such importance that the Court has modified its Rules to regulate its practice of requesting final written submissions after the conclusion of a hearing. Even though Article 56 of the November 2009 Rules give the President much flexibility to determine the applicable deadline for final written submissions, the Courts practice has been to give parties 30 days from the end of the public hearing to do so. Therefore, the parties have 30 days to process all the information obtained in the hearing and to target their briefs to respond to the Judges questions and concerns, while amici only have 15 days to do the same. If amici are to be useful friends of the court, it seems reasonable to extend the deadline and allow amici the same time as the parties in a case enjoy to prepare their submissions. Of course, the parties in a case may not be able to respond to amici submissions if all briefs have to be submitted by the same deadline, but amici would still always have the option of presenting their briefs earlier if they want the parties to take their arguments into consideration. What seems most important is to provide a more reasonable time frame that facilitates the best possible friend of the court briefs that provide useful information and legal advise to the Court. The IACtHR should also consider publishing amici curiae briefs on its website (unless amici specifically request that confidential or sensitive information not be published). Before the Court modified its website in 2013, web users could access parts of the case file of cases that already had a final judgment, and the Court sometimes (not always) included amici briefs in these publications. This information is much more difficult to access through the Courts new website, and is often missing from the published case file. The Court should reconsider its practice of publishing this information, not only for research purposes, but also to promote greater transparency and awareness of the issues before the Court. With regards to the issue of transparency, the Court should also make publicly available the parties pleadings in each case before the public hearing takes place (unless the parties so object or unless the pleadings contain sensitive or confidential information). Although the Commission makes its Article 50 Report available on its website, the public has no access to the States response or to the victims briefs, at least not until the case is already adjudicated, pursuant to Article 32(3) of the November 2009 Rules. Amici who wish to provide the Court with useful and relevant information often find themselves unable to do so meaningfully without access to the parties briefs. Pursuant to the Courts Rules and practice, amici must wait until the public hearing takes place to fully understand the legal controversies and nuances in a case. And once amici finally are able to have a good grasp of the case during the public hearing, the current Rules give them only 15 days to digest all that information, prepare, often translate, and submit a useful and relevant brief to the Court. Providing amici and the general public with the parties briefs (or at least a detailed summary of them) before a public hearing takes place would thus facilitate better, more relevant, more useful, and more timely amici submissions. Additionally, the Court should consider providing in its judgments a short description of the identity and content of amici submissions like the one found in Cabrera Garcia and Montiel Flores (2010) and in Gomes Lund (2010). Such descriptions should contain, at a minimum, the date of submission, the name and type of person(s) submitting the brief, and a brief indication about the issue(s) the brief addresses. The Court could require amici to include such a brief

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description in the brief itself, so that the Courts staff need only copy and paste this text into the judgment. The Court could also impose a word limit on this description to prevent taking up too much space in its already lengthy judgments. For example, this description could merely state the following: amici are (law professors, a law school clinic, a national/regional/international NGO, a private individual, a group of organizations, etc.) who submit to the Court considerations about (the factual and legal issue(s) involved in the case). It is true that a possible unintended negative consequence of the rise in amici submissions could be that the small staff of attorneys that work at the Court are becoming inundated with long legal briefs. The parties submissions are already often quite lengthy. Because the Courts Rules do not place page limits on submissions from either the parties or from amici, the result is often a very lengthy case file. In response to this situation, the Court may find it necessary to modify its Rules of Procedure to place page limits on all written submissions, including those of amici. These suggestions are aimed at ensuring that the Court makes the necessary changes to continue to adapt to an ever-increasing participation of amici curiae before the Court. The data and the ideas generated in this article are merely a starting point for this much-needed conversation to ensure a robust, useful, and meaningful participation of parties and non-parties alike in the development of international human rights law before the Inter-American Court.

TABLE 1 APPROXIMATE109 NUMBER OF AMICI CURIAE BRIEFS IN THE COURTS

ADVISORY OPINIONS (1982-2013) Advisory

Opinion No. (Year)

(Para. No.)

No. of

amici

Names of amici

No. 1 (1982) (para. 5)

5 1. Inter-American Institute of Human Rights; 2. International Human Rights Law Group; 3. International League for Human Rights; 4. Lawyers Committee for International Human Rights, and 5. Urban Morgan Institute for Human Rights of the University of Cincinnati College of

Law. No. 2 (1982) (para. 5)

2 1. International Human Rights Law Group, and 2. Urban Morgan Institute for Human Rights of the University of Cincinnati College of

Law No. 3 (1983) (para. 5)

3 1. International Human Rights Law Group & the Washington Office on Latin America; 2. Lawyers Committee for International Human Rights & the Americas Watch

Committee, and 3. Institute for Human Rights of the International Legal