Procedures for the Effective Implementation of
the Basic Principles on the Independence of the
Judiciary;16 and
Draft Universal Declaration on the Independence
of Justice (the “Singhvi Declaration”).17
2.2.3. UNITED NATIONS HUMAN RIGHTS
COMMITTEE, GENERAL COMMENT NO. 32
The United Nations Human Rights Committee periodically
issues General Comments which offer authoritative
interpretations of the rights included in the ICCPR (the
Committee on Economic, Social and Cultural Rights does the
same for the International Covenant on Economic, Social and
Cultural Rights). While the General Comments themselves are
not legally binding, the rights in the ICCPR, which they
interpret, do impose legally binding obligations on states
party to the Covenant. Accordingly, the General Comments are
an important source of information about what obligations
and duties states party bear under the ICCPR.
the Promotion and Protection of Human Rights developed the
Draft Principles Governing the Administration of Justice
through Military Tribunals.18
2.2.5. REGIONAL STATEMENTS
A handful of regional organizations have made declarations or
statements of judicial independence. These statements are
not binding, and thus occupy a similar status to the United
Nations Basic Principles and Guidelines (section 2.2.2). While
they reflect the opinions of regional international
organizations rather than the opinions of the global
international community, they are nevertheless instructive in
indicating the universal nature of many principles of judicial
independence, as well as assisting in understanding judicial
independence in specific regional contexts. Relevant regional
statements include:
General Comment No. 32 deals specifically with the fair trial
rights in Art. 14 of the ICCPR. It is valuable in understanding
what Art. 14 means for individual states as they seek to fulfil
the right to fair trial and ensure judicial independence in their
domestic legal systems. It is an influential document.
2.2.4. RAPPORTEUR’S ANNUAL REPORTS AND
RAPPORTEUR’S MISSIONS
The United Nations Special Rapporteurs are individuals who
bear either a thematic or a country-specific mandate from the
United Nations Human Rights Council to investigate human
rights issues on behalf of the United Nations. Since 1994, the
United Nations has appointed a Special Rapporteur on the
Independence of Judges and Lawyers, and the Special
Rapporteur has filed Annual Reports.
Alongside the Annual Reports, the Special Rapporteur
undertakes periodic missions to selected countries. The
reports compiled on the basis of these missions are in-depth
case studies of judicial and legal institutions in individual
countries, and an assessment of how those structures and
institutions succeed or fail in upholding the principles of
judicial independence. Both kinds of documents offer useful
analyses of how principles of judicial independence can be
translated into practice in domestic contexts. At the same
time, the documents offer warnings of how domestic judicial
and legal systems can fail to uphold principles of judicial
independence.
The reports of other thematic Special Rapporteurs are also
valuable as soft law sources for judicial independence. For
instance, the Special Rapporteur of the Sub-Commission on
15
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.
16
Economic and Social Council resolution 1989/60, endorsed by General
Assembly resolution 44/162, 15 December 1989.
17
Economic and Social Council, Sub-Commission on Prevention of
Discrimination and Protection of Minorities, Special Rapporteur on the
Study on the Independence and Impartiality of the Judiciary, Jurors and
Assessors and the Independence of Lawyers, endorsed by Commission on
Human Rights resolution 1989/32 (the ‘Singhvi Declaration’).
5
18
The Association of South East Asian Nations
Human Rights Declaration: Art. 20(1) guarantees
the presumption of innocence and the right to a
fair trial before a competent, independent and
impartial tribunal.19
The Consultative Council of European Judges
(Council of Europe) Magna Carta of Judges;20
Council of Europe Recommendation No. R (94) 12
of the Committee of Ministers to Member States
on the Independence, Efficiency and Role of
Judges;21
African Union Principles and Guidelines on the
Right to a Fair Trial and Legal Assistance in
Africa;22
The Beijing Statement of Principles of the
Independence of the Judiciary in the Law Asia
Region (the Law Association for Asia and the
Pacific);23
Commonwealth Latimer House Guidelines for the
Commonwealth on Parliamentary Supremacy and
Judicial Independence;24 and
Inter-American Democratic Charter.25
Draft Principles Governing the Administration of Justice through Military
Tribunals, Report submitted by the Special Rapporteur of the SubCommission on the Promotion and Protection of Human Rights,
E/CN.4/2006/58, 13 January 2006.
19
Adopted by the Heads of State of the Association of South East Asian
States, Phnom Penh, 18 November 2012.
20
Adopted by the Council of Europe Consultative Council of European
Judges, Strasbourg, 17 November 2010.
21
Adopted by the Committee of Ministers on 13 October 1994 at the 518th
meeting of the Ministers’ Deputies.
22
Adopted as part of the African Commission’s activity report at 2nd
Summit and meeting of heads of state of the African Union, Maputo, 4-12
July 2003.
23
Adopted by the Conference of Chief Justices of Asia and the Pacific
Resources, Beijing, 19 August 1995.
24
Adopted on 19 June 1998 at a meeting of the representatives of the
Commonwealth Parliamentary Association, the Commonwealth Magistrates
and Judges Association, the Commonwealth Lawyers’ Association and the
Commonwealth Legal Education Association.
25
Adopted by the OAS General Assembly at its special session held in Lima,
Peru, 11 September, 2001.