while the fairness of the judicial process and the impartiality
of prosecution authorities must receive special consideration
in common law systems.
2. JUDICIAL INDEPENDENCE AND
INTERNATIONAL LAW
2.1.2. REGIONAL TREATIES
As with the ICCPR, regional multilateral treaties impose
legally binding obligations on states party to the treaty. A
number of these treaties include a requirement of judicial
independence in the form of a right that mirrors Art. 14 of the
ICCPR. Examples include:
Under international law, there is a distinction between “hard”
law and “soft” law. “Hard” law refers to agreements and rules
of international law that impose precise and legally binding
obligations on states. “Soft” law refers to international
agreements that are not formally binding or impose no clear or
precise obligations on state parties, or to interpretive
statements on treaties, such as the General Comments issued
by the UN Human Rights Committee and the UN Committee on
Economic, Social and Cultural Rights, which carry no binding
legal force. Relevant sources of international law on judicial
independence fall into both categories. This Briefing Paper
refers to both hard and soft law sources on judicial
independence.
2.1. RELEVANT SOURCES OF INTERNATIONAL
LAW: “HARD LAW”
2.2. RELEVANT SOURCES OF INTERNATIONAL
LAW: “SOFT” LAW
2.1.1. INTERNATIONAL COVENANT ON CIVIL
AND POLITICAL RIGHTS (ICCPR)
The ICCPR is a multilateral treaty adopted by the UN General
Assembly on 16 December 1966. The states party to the
Covenant are legally bound by its provisions.12 The Covenant
includes a clear statement of the requirement of judicial
independence in the right to fair trial. Article 14 provides in
part:
(1) All persons shall be equal before the courts and
tribunals. In the determination of any criminal charge
against him, or of his rights and obligations in a suit at law,
everyone shall be entitled to a fair and public hearing by a
competent,
independent
and
impartial
tribunal
established by law. The Press and the public may be
excluded from all or part of a trial for reasons of morals,
public order (ordre public) or national security in a
democratic society, or when the interest of the private
lives of the parties so requires, or to the extent strictly
necessary in the opinion of the court in special
circumstances where publicity would prejudice the
interests of justice; but any judgment rendered in a
criminal case or in a suit at law shall be made public
except where the interest of juvenile persons otherwise
requires or the proceedings concern matrimonial disputes
or the guardianship of children.
2.2.1. UNIVERSAL DECLARATION OF HUMAN
RIGHTS (UDHR)
The UDHR is a non-binding declaration of the United Nations
General Assembly, although some of its provisions are
considered customary international law. The UDHR affirms
the right to a fair trial before an independent and impartial
tribunal (Art. 11), the right of accused persons to be presumed
innocent (Art. 11), and the guarantee that all are equal before
the law and enjoy all rights and freedoms equally. The UDHR
imposes no legal obligations on countries, but is an important
interpretive guide to the ICCPR and other international
treaties that do impose obligations of rights protection and
judicial independence.
2.2.2. UN BASIC PRINCIPLES AND GUIDELINES
The UN has adopted several sets of basic principles and
guidelines as framework models for how a country’s domestic
laws and institutional structures can protect the
independence of the judiciary. These documents are not
legally binding, but are intended instead as a resource for
countries committed to judicial independence.
These documents include:
(2) Everyone charged with a criminal offence shall have the
right to be presumed innocent until proved guilty
according to law.
13
12
Details of the member states and states party to the ICCPR can be found
online at
http://treaties.un.org/Pages/ViewDetails.aspx?src=UNTSONLINE&tabid=2
&mtdsg_no=IV-4&chapter=4&lang=en#Participants.
4
African Charter on Human and Peoples’ Rights:
Art. 3 guarantees equality before the law and
equal protection of the law; Art. 26 imposes a
direct obligation on state parties to guarantee
the independence of the courts. The European
Convention on Human Rights: Art. 6 guarantees
the right to a fair trial before an independent
and impartial tribunal and the right to be
presumed innocent.
The American Convention on Human Rights: Art.
8 guarantees the right to a fair trial before a
competent, independent and impartial tribunal
and the right to be presumed innocent.
Basic Principles on the Independence of the
Judiciary;13
Basic Principles on the Role of Lawyers;14
Guidelines on the Role of Prosecutors;15
UN Basic Principles in the Independence of the Judiciary, adopted by the
Seventh UN Congress on the Prevention of Crime and the Treatment of
Offenders, Milan 26 August - 6 September 1985, endorsed by General
Assembly resolutions 40/32, 29 November 1985 and 40/146, 13 December
1985.
14
Adopted by the Eighth United Nations Congress on the Prevention of
Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7
September 1990.