General Principles of International Law
Independence of the Judiciary
In Brief
International law requires that cases presented in international
tribunals and cases presented in domestic tribunals where
international law is applicable be resolved by tribunals
that are independent and that are composed of independent
judges.
In Theory
Asserting that the above is a principle of international
law may seem strange, because it is not usually included
in the litany of principles of international law that
a student would encounter in studying international law,
or that a professor of international law would enunciate
in his or her lectures on international law. For example
and by analogy, law students in the United States studying
constitutional law or criminal law would not be confronted
by a professor with cases which discuss, or texts that
espouse, the concept of an independent judiciary in either
the federal court system or the court systems of the
individual states. Perhaps the reason is because the
necessity of an independent judiciary in a country espousing
democracy and the rule of law is self-evident. Nevertheless
it is important to highlight this principle and resolve
any questions that might be raised as to the validity
of it as a principle in international law.
One might, in an attempt to resolve any doubt or question about this principle, respond by simply stating, as indicated above, that international law, because it is law, presumes or has as its basis the “rule of law.” And the rule of law necessarily incorporates the idea of dispute resolution by peaceful means, and the further idea of the conduct or hearing of cases according to recognized procedures, including recognized tribunals. And given the necessity of tribunals to resolve disputes and hear cases, to have any validity those tribunals must necessarily be independent and made up of independent judges. Thus one argument would be simply that the whole idea of international law requires independent tribunals and independent judges.
There is, however, another approach that may be taken in asserting that independent tribunals and independent judges in the dispute resolution and case-hearing aspects of international law together form a principle of international law. One definition of law is that it is simply those principles or rules that a court would enforce or give effect to in resolving a case. Thus in cases involving the public or the government, courts would look to a constitution, a statute, or a regulation adopted by a regulatory body. In private disputes, courts would look to the “private law” of the parties, such as a contract or agreement. Using this definition of law, is the guarantee of an independent judiciary a principle of international law that would be recognized and applied by an international tribunal? For example, if a question arose in the International Court of Justice, the grandfather of international courts, whether the guarantee of an independent judiciary is a recognized principle of international law, how would the ICJ resolve that issue?
Actual Support for Principle
The International Court of Justice might look no further
than the statute that created it, the Statute
of the International Court of Justice, adopted by countries
in conjunction with the creation of the United Nations in
1945 (the ICJ is the immediate successor to the Permanent
Court of International Justice, created at the time of the
establishment of the League of Nations following World War
I). Article 2 of that Statute provides:
The Court shall be composed of a body of independent judges, elected regardless of their nationality from among persons of high moral character, who possess the qualifications required in their respective countries for appointment to the highest judicial offices, or are jurisconsults of recognized competence in international law.
In addition, article 30 requires that the judges who sit on that court exercise their powers “impartially and conscientiously.”
In resolving any doubt, the ICJ might review Article 38 of the Statute, which enunciates sources of law to be applied by the Court:
The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
The Court would then inquire whether any of these “sources” of law require an independent judiciary to resolve international cases or domestic cases with an ingredient of international law. With respect to international conventions Article 10 of the Universal Declaration of Human Rights states:
Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.
In addition part of Article 5 of the European Convention on Human Rights states:
In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
One other convention, the International Covenant on Civil and Political Rights, guarantees in the determination of any criminal charge or of rights and obligations at a suit at law, a fair and public hearing by a competent, independent and impartial tribunal established by law.
There are undoubtedly other international conventions that have similar provisions. Thus the Court could apply these provisions of international conventions in ruling that an independent judiciary is a principle of international law.
Moreover, most countries have some kind of provision in their constitution or in a national statute that provides for an independent judiciary. Former Associate Justice of the U.S. Supreme Court, Sandra Day O’Connor, in a speech in 2003 before the Arab Judicial Forum, pointed out that the constitutions of almost all Arab countries contain provisions for an independent judiciary. She specifically mentioned in the speech the constitutions of Bahrain, Egypt, and Jordan. Other countries where an independent judiciary is part of the fabric of the legal system are the United States, Canada, and Australia. Thus the concept of an independent judiciary is a general principle of law recognized by civilized nations.
Other Source Documents
Finally, the concept of an independent judiciary is included
in the “teachings of the most highly qualified publicists
of the various nations.” The International
Commission of Jurists, one of the most prestigious bodies
of international jurists and lawyers, in 2004, issued what
is known as the Berlin
Declaration on Upholding Human Rights and the Rule of Law
in Combating Terrorism, which confirmed the idea of
an independent judiciary “in the development and implementation
of counter-terrorism measures.” Also a group of chief justices
from various countries, meeting in The Hague in 2001-2002,
issued what is known as the Bangalore
Draft Code of Judicial Conduct 2001, Adopted by the
Judicial Group on Strengthening Judicial Integrity, as revised
at the Round Table Meeting of Chief Justices Held at the
Peace Palace, The Hague, November 25-26, 2002. Value I of
that declaration is independence of the judiciary, and the
following items 1.1-1.4 specifically spell out what is meant
by or contained in that value.
Thus three out of the four sources of international law that are authorized for use by the International Court of Justice in its organic statute confirm that an independent judiciary is a principle of international law.
Learn More
United Nations Basic Principles
on Independence of the Judiciary
Council of Europe Rec No. R (1994) 12 on the Independence, Efficiency and Role of Judges
Universal Charter of the Judge
European Charter on the Statute for Judges
By James G. Apple, Co-Editor, International Judicial Monitor, and President, International Judicial Academy
International
Judicial Monitor