International Judicial Monitor
Published by the International Judicial Academy, Washington, D.C., with assistance from the
American Society of International Law

Winter 2013 Issue

General Principles of International Law


The UN Basic Principles on the Role of Lawyers

Carolyn A. Dubay

By: Carolyn A. Dubay, Associate Editor, International Judicial Monitof and Assistant Professor, Charlotte Law School

In the famous United States Supreme Court case Gideon v. Wainwright, 372 U.S. 335 (1963), Justice Hugo Black wrote that “[t]he right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours.”  Id. at 344.  Fifty years later, times have changed.  Countries around the world commonly provide for such a right in their constitutions or domestic law, and many others in the middle of constitutional reform are addressing the urgent need for qualified counsel as rule of law and democracy movements take hold.

The international legal community has also long-recognized the role of counsel in securing human rights, especially in the criminal context.  The UN Basic Principles on the Role of Lawyers (the “Basic Principles”) were adopted in 1990 at the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders (now known as the United Nations Congress on Crime Prevention and Criminal Justice).  They follow the Congress’s adoption of the UN Basic Principles on the Independence of the Judiciary at the Seventh Congress in 1985.  The Basic Principles were not a new announcement about the importance of counsel, but were designed to solidify the centrality of the legal profession in securing the basic human rights delineated in the Charter of the United Nations, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, the Standard Minimum Rules for the Treatment of Prisoners, and the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power.  As the Basic Principles state in their preamble:

. . . adequate protection of the human rights and fundamental freedoms to which all persons are entitled, be they economic, social and cultural, or civil and political, requires that all persons have effective access to legal services provided by an independent legal profession . . . .

Like judicial independence, an independent legal profession depends on mechanisms to allow access to justice, restraint of government actors in chilling the rights of lawyers to form associations and express their opinions on important matters of public concern, as well as the quality and ethics of the lawyers themselves secured through adequate education and enforcement of ethical rules.  The Basic Principles address each of these elements through itemized commitments for governments to undertake in the areas of (1) access to lawyers and legal services; (2) special safeguards in criminal justice matters; (3) qualifications and training of lawyers; (4) guarantees for the functioning of lawyers; (5) freedom of expression and association for lawyers; (6) the role of professional associations of lawyers; and (7) disciplinary proceedings for lawyer misconduct.


With respect to access to justice, the Basic Principles provide for a right to counsel in criminal cases, and require governments to take steps to ensure equal access to legal services regardless of race, gender, religion or other classification.  This is a strong proposition in favor of equal access to justice for all.   To achieve this aim, the Basic Principles also call for funding and resources for legal services for the poor.  This obligation rests not just on governments, but on the legal profession itself through the work of professional associations and civil society organizations.  The Basic Principles also understand that providing services for the poor are insufficient without significant public outreach and education, and thus demand the establishment of such programs, especially directed towards the poor and disadvantaged members of society.

Regardless of whether a nation follows an accusatorial or inquisitorial system of criminal justice, the Basic Principles also recognize certain fundamental rights to legal assistance for criminal defendants.  For example, upon arrest or detention, the accused is to be “immediately informed by the competent authority of their right to be assisted by a lawyer of their own choice.”  Criminal defendants are also entitled to competent counsel to be paid for by the state in cases where the defendant cannot afford counsel.  Understanding that immediate access to counsel is necessary, the Basic Principles embody an obligation of timeliness in the access to counsel, regardless of whether the individual has been officially charged with a crime. Finally, in order to forestall any attempt by law enforcement to interfere with the attorney-client relationship, the Basic Principles dictate that anyone arrested, detained or imprisoned must have the ability to communicate confidentially and in private with counsel. 

Because none of these principles have meaning without a competent and well-educated corps of legal professionals, the Basic Principles embrace the evolving understanding of the critical importance of education and training for lawyers as to both legal and ethical rules and obligations.  As such, “[g]overnments, professional associations of lawyers and educational institutions shall ensure that lawyers have appropriate education and training and be made aware of the ideals and ethical duties of the lawyer and of human rights and fundamental freedoms recognized by national and international law.” Legal education must also be available on an equal basis, and entry into the legal profession cannot be denied on the basis of race, gender, religion or other classification (excepting the requirement of citizenship/nationality to practice in a particular jurisdiction).  To ensure the quality and ethical standards of the profession, states should also develop codes of conduct that are enforced through expeditious investigation and fair proceedings.

Finally, the Basic Principles impose a duty of governments to refrain from interfering with the duties of the legal profession and the ability of lawyers to perform services on behalf of their clients. This obligation includes ensuring that lawyers are able to perform their duties without intimidation, hindrance, harassment or improper interference.  Embodied in this goal is right guaranteed to lawyers to free expression, belief, association and assembly.  Because professional legal associations often provide a key mechanism for lawyers to share information and develop law and policy, the Basic Principles include the right to form and join independent and “self-governing professional associations to represent their interests, promote their continuing education and training and protect their professional integrity.”

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© 2013 – The International Judicial Academy
with assistance from the American Society of International Law.

Editor: James G. Apple.
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