Standing in the Law of the Commonwealth and in International Law

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by Christopher B. Gray

Contents

Introduction

Standing is the capacity to be heard by courts or other legal tribunals and officers. To be heard means not only that one’s claim can have influence upon an outcome, even less to be able to present the claim in person or by advocate but, above all, that one’s claim can become an issue for legal decision at all. A legal officer will not receive nor act upon the request of an applicant with no standing.

Standing is a secondary legal relation, from which one can change primary legal relations; it is only the precondition for accomplishing something else that is legal. Its equally common Latin name, locus standi, “a place to stand,” hints at this. Everyone enjoys legal status, as a legal person defined to be a sharer in rights and duties, even if not all may be able to exercise it. Status at large, however, does not ensure standing in the particular dispute, since that depends on the person’s own situation and upon the type of remedy s/he is seeking.

Standing is one of the several procedural devices meant to ensure that judicial institutions can do their job, by setting limits upon what the business is that their clients may bring for hearing. Claims which are not made within a fair delay (dilatoriness), which are made about matters already over and done (mootness), which are the concern of others but not the law (non-justiciability) share this purpose. One could consider the entire procedural law as regulating this purpose, by determining how matters may come before the courts and leading to dismissal of what is not brought in that way.

Development of the Concept of Standing in the Law of the Commonwealth

The needs for locus standi drive commonwealth administrative history (Woolf 1995, n. 14 survey). Private law matters were the starting point for development on which the more elaborate schemata for standing were pitched. In tort as in delict, the plaintiff who suffered injury has to be the one to take suit against whoever caused it; s/he is the only person who has standing to sue for recovery. That is the very definition of the action; this is so obvious that the term standing is not even used in this context. If the injured party refuses to sue, no one else can do it for him. That assertion is not inconsistent with such instruments as assignment or subrogation of claims, representation or tutelage of parties, and joinder of actions; this is because these devices require or presume agreement by the injured party. As well, suits apparently by third parties, such as for distant economic loss or for wrongful death, pursue the plaintiff’s own injury, not the nearby victim’s. Some injury is required.

Where the offence was a public nuisance, this model was continued, despite changes in the wrong. For the wrongdoer now harms the public, with noise or endangerment, for example. Some members of the public may be unaffected, such as the deaf or the risk-prone. Could they too sue for damages or, more tellingly, demand that legal authorities call a halt to the nuisance? Not unless they could show that they had suffered in a special way, different or more than the public at large, and had suffered in fact and not only on the hypothesis that they could have. Imminence of threat, however, is already an injury.

The next stage of public emergence is what gives a peculiarly cultural flavor to the development of standing. Besides equitable remedies for abuses of private power, remedies by prerogative writ for abuses of kingly authority by its officers became available to make them do their duty, do it rightly, or not do it wrongly. Since the public interest in these was the Crown’s, it could be represented only by what is today the Attorney General; here was the only place where standing could lie to seek a remedy. Thereafter the only time these writs could be employed without his approval is when the public wrongs approximate the private tort or the public nuisance. Either the wrong intrudes upon a legal interest, usually proprietary; or else the wrong to the public is suffered in a unique and distinctive manner by the private citizen who wishes to enforce the administrator’s duties.

These three become standardized as the only ways to acquire standing: standing ex officio; infringement of a person’s legal interest; or particular suffering of a public wrong. These canonical ways to acquire standing in administrative law tend to become the paradigm for gaining standing in the next step up the jural hierarchy, in constitutional law. Defence of the constitution is a public benefit and duty; attempts to legislate which exceed or run contrary to constitutional empowerments or rights are wrongs to the public; every citizen suffers that wrong. Since it appears to lie close by administrators’ wrongs against duties imposed under subordinate legislation, the same criteria for standing tend to be used, to seek remedy not only for the behavior of executive officers but also for the conduct of legislatures and courts.

Application of Standing in International Law

Access to standing at international law is more straightforward: since individuals and their groupings are not its parties, standing among them is not selected, but is absent. Of course, the proper state parties can confer this standing ex gratia, and have sometimes done that; but no recognition as of right is present. Also disanalogous is that public policy and so the sufficient interest is multiple, as in a federation. Most disanalogous is that no distinction between public and private interest is available as a criterion. State parties have no private interest vis-à-vis other states, even though there are private interests which governmental institutions invoke vis-à-vis their own citizens, and that their citizens invoke against other states. A state in international law can only defend private interests if these belong to its citizens, and only if they are provided access for hearing by the international organization’s statutory instruments.

The effect of this upon the criteria for standing is that (1) no single locale other than the international court itself is available to decide upon standing; (2) no sufficiency of interest is needed for proper parties to gain access to justice; (3) no rationale by private harm is available to those who do not have straightforward access; but that is not available to individuals anyway, and is not needed by states. As a result, a potential loss of achievement threatens, as in environmental issues, if no individuals or their NGO can access justice, and the state parties can gain standing only by the time they suffer unique damage, which is far too late. One remedy is to conceive that standing is made available by the erga omnes tenor of obligations that arise from such “common concerns of mankind” (Kirgis 1990).

Variants

Legislation can remedy standing difficulties as well as cause them, by expanding upon historical restrictions. Wording in numerous statutes identify who it is that can sue for their enforcement; the relevant clientele can vary from a few named bodies to “anyone.” As an ironic block to this, however, provisions like the third amendment to the U.S.A. constitution empowering the courts’ jurisdiction in a “case or controversy” have been interpreted to prohibit the courts from hearing any complaint which does not involve a controversy, some concrete dispute, the traditional requirement; this impairs any loosening there of traditional requirements for standing by particular statutes or by the exercise of judicial discretion.

The criminal law appears to be a blatant exception to the standing provisions because, despite the criminal wrong being defined as a public wrong, a space for initiating private prosecutions remains. In fact this is hardly exceptional, since such prosecution proceeds only under the approval of the Attorney General, which makes the criminal law more a demonstration of the orthodoxy on standing than its counterexample.

Deciding on representativity, or whether a group adequately represents its individual members when suing in their name, is not the same problem as whether a litigant is the right person best to present a widely suffered wrong and so deserve standing. The first issue is instead one of capacity. In general, an organization will be in no better position to claim standing than its members; interest insufficient for members will not turn sufficient when grouped (Lujan), although grouping may provide greater resources for gaining expertise and for funding diligent litigation, as helps to the court. Even less does representativity make standing equivalent to issues in class actions suits, which obey ordinary procedures in pursuit of private rights.

References

Bebr 1990, Gerhard. “Standing of the European Parliament in the Community System of Legal Remedies: A Thorny Jurisprudential Development.” Yearbook of European Law 10, 171-207.

Bogart 1989, William. “The Lessons of Liberalized Standing? Review of Locus Standi by T.A. Cromwell.” Osgoode Hall Law Journal 27, 195.

Bowal 1994, Peter. “Speaking For Others; Locus Standi and Representative Bodies.” Les Cahiers de Droit 35, 905-40.

Cromwell 1986, Thomas A. Locus Standi; A Commentary on the Law of Standing in Canada. Toronto: Carswell.

Cromwell 1989, T.A. “Review of Ontario Law Reform Commission, Report on the Law of Standing, 1989.” Windsor Yearbook of Access to Justice 9, 379-87.

Finlay 1997 Minister of Finance of Canada v., 22 D.L.R. (4th) 321 (S.C.C.) (carrying the three criteria of justiciability, real interest, and absence of alternatives into administrative law, from constitutional law where Thorson, McNeil and Borowski had left them).

French 1999, Peter A. “Status.” The Philosophy of Law: An Encyclopedia. Vol.2. Ed. C.B.Gray. New York: Garland, 839.

Gélinas 1988, Fabien. “Le Locus Standi dans les recours d’intéret public et la Relator action: l’empire de la common law en droit québécois.” Les Cahiers de Droit 29, 657-87.

Gouriet 1978, v. Union of Postal Workers and Attorney-General, A.C. 435 (H.L.) (union lacks sufficient interest to restrain unlawful interference with mail to South Africa).

Kirgis 1990, Frederic L., Jr. “Standing to Challenge Human Endeavors That Could Change the Climate.” The American Journal of International Law 84, 525-30.

Lujan 1992, v. Defenders of Wildlife, 112 S.Ct. 2130 (U.S.S.C.) (restricting Congress’ power to confer standing on federal courts to allow organizations to pursue members’ interests).

Mabe 1999, Alan R. “Standing.” The Philosophy of Law: An Encyclopedia. Vol.2. Ed. C.B.Gray. New York: Garland, p. 833.

Naughton 1991, T.F.M. “The Limits of Jurisdiction and Locus Standi in the Land and Environmental Court of New South Wales. The Australian Law Journal 65, 149.

Parker 1995, Douglas L. “Standing to Litigate ‘Abstract Social Interests’ in the U.S. and Italy.” Columbia Journal of Transnational Law 44, 259-316.

Peiris 1983, G.L. “The Doctrine of Locus Standi in Commonwealth Administrative Law: Public Law, 52-90.

Schiemann 1990, Sir Konrad. “Locus Standi.” Public Law, 342-53.

Sherlook 1987, Ann. “Locus Standi in Irish Constitutional Law.” Public Law, 245-.

Vining 1987, Joseph. Legal Identity; The Coming of Age of Public Law. New Haven: Yale University Press.

Woolf 1995, Lord, Jeffrey Jewell. Judicial Review of Administrative Action. 5 ed. London: Sweet & Maxwell.

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