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

Spring 2016 Issue

International Law Analysis and Commentary


Challenges to the Rule of Law and the Independence of the Judiciary

Hans Corell
By: Hans Corell, Former Under-Secretary-General for Legal Affairs and Legal Counsel of the United Nations

The celebration of the 10th anniversary of the founding of the International Judicial Monitor offers an opportunity to reflect on the developments in the field of human rights and the rule of law over the past decade. This can also be done against the backdrop of the many celebrations[1] last year of the 800th anniversary of the Magna Carta.

The legacy of Magna Carta in a worldwide perspective is very much a question of access to justice. The two most quoted clauses in the document are probably clauses 39 and 40:

(39) No free-man shall be seized, or imprisoned, or dispossessed, or outlawed, or in any way destroyed, nor will we condemn him, nor will we commit him to prison, excepting by the legal judgement of his peers, or by the laws of the land.

(40) To no one will we sell, to no one will we deny, to no one will we delay right or justice.

One would have thought that the heritage that this document carries with it would have taught us the lesson that access to justice must be provided to all. Basically, it is a matter of observing the rule of law, of which human rights is a core element. It is true that there have been positive developments, in particular after the end of the Second World War, when the United Nations was established, when the Council of Europe and other regional organisations were set up, and when declarations and conventions on human rights were adopted by these organisations.

Another positive development was the fall of the Berlin Wall in 1989 and the end of the Cold War. However, sad to say, this trend has turned in an opposite direction – even in Western democracies. Some years ago all of a sudden things started to go wrong. It is difficult to explain exactly why. One explanation can be 9/11 – the attack on the World Trade Center in New York and the destruction of the twin towers. Extraordinary measures were taken. Fundamental rules were set aside. People were incarcerated without due process. Secret detention centres were established. Extraordinary renditions became practice.

With respect to Europe, it is sad to note that also this region has been backtracking in the field of human rights and the rule of law in later years. An authoritative source of information here is the report of 29 April 2015 by the Secretary General of the Council of Europe Thorbjørn Jagland: State of Democracy, Human Rights and the Rule of Law in Europe - A shared responsibility for democratic security in Europe - Report by the Secretary General of the Council of Europe. This report[2] contains an overview of human rights, democracy and the rule of law in the 47 Council of Europe member states.

According to the report, Europe’s democratic shortcomings are bigger, deeper and geographically more widespread than previously understood. The two biggest challenges to democratic security are the lack of judicial independence in many countries and threats to media freedom across the continent. According to the Secretary General, honest and decent courts are essential for supporting democracy and maintaining stability. Yet, according to the Secretary General, over a third of the member countries are failing to ensure that their legal systems are sufficiently independent and impartial.

The Secretary General also concludes that media freedom is under pressure across the whole continent. In his opinion journalists face physical threats in many places, anti-terror laws are being used to limit free speech and certain media arrangements unfairly favour those who are in power. Further areas of concern identified in the report are shortcomings in the conduct of elections, inadequate anti-discrimination rules and pressure on non-governmental organisations in many countries. Since the report was issued, the situation has worsened due to the refugee crisis.

With respect to the United States the sad development after 9/11 has continued. Guantánamo, that represents a clear violation of the most fundamental human rights, is still not closed. As President Obama said when he presented his latest effort to close the camp, “it is a stain on the rule of law.” Furthermore, when a commission[3] reports to the Senate that U.S. agencies have been engaged in torture, there is no independent prosecutor, who can initiate investigations proprio motu on the basis of this information. And the present controversy with respect to the filling of the vacancy after Justice Scalia on the U.S. Supreme Court is deeply worrying. [4] Let us hope that the Senate will listen to Chief Justice John G. Roberts Jr. who before there was a vacancy expressed the opinion[5] that the Senate should ensure that nominees are qualified and leave politics out of it.

Also, the process of electing judges at the state level gives cause for worry. In a report[6] released on 19 December 2013, the International Bar Association’s Human Rights Institute (IBAHRI) warned that judicial elections by popular vote may become politicised and the principles of judicial independence violated. Furthermore, the report found that the judicial retention elections in the United States’ state of Iowa, in 2010, were incompatible with the principles of judicial independence as embodied in the UN Basic Principles on the Independence of the Judiciary (1985) and the right to a fair trial as set forth in Article 14 of the UN International Covenant on Civil and Political Rights (1966). The question is if the latest development in Kansas[7] is yet another example of this serious problem.

Looking east, it is sad to conclude that the development in China gives cause for great concern. Lawyers in China continue to face improper interference in their professional work and serious violations of their rights. On 9 December 2015, the UN Committee Against Torture published its concluding observations on the fifth periodic report received from China. To safeguard lawyers' rights, the UN Committee recommends that China:

- stop sanctioning lawyers for actions taken in accordance with recognised professional duties, which should be possible without fear of prosecution;

- ensure the prompt, thorough and impartial investigation of all the human rights violations perpetrated against lawyers, and ensure that those responsible are tried and punished in accordance with the gravity of their acts; and

- adopt the necessary measures without delay, to ensure the development of a fully independent and self-regulating legal profession, enabling lawyers to perform all of their professional functions without intimidation, harassment or improper interference.

On 20 December 2015, IBAHRI called on China[8] to implement these recommendations and to respect in full the UN Basic Principles on the Role of Lawyers.


In Latin America the fact that governments threaten judicial independence by unduly sanctioning, removing, and intimidating judges is becoming a continuing concern for all involved in the region. The IBA will soon publish a thematic paper entitled Politicisation and Abuse: Judicial Accountability in Latin America. In this paper a four-pronged approach is recommended in order to protect the judiciary from political interference and increase public trust in the judiciary: (1) promote personal and institutional judicial integrity, (2) increase the transparency of the judiciary, (3) clarify the rules and procedures for disciplining judges, and (4) ensure the transparency and impartiality of disciplinary processes.

There are further examples of problems in other parts of the world, including Africa, Asia and the Middle East. Reference could in this context be made to IBAHRI´s Thematic Papers No 4 of June 2014 Judicial Independence: Some Recent Problems by Geoffrey Robertson QC. In this paper[9] Robertson surveys “some recent problems: the difficulty of detecting and dealing with the judge who becomes a government lickspittle, the confusion associated with the arcane method of ‘impeachment’ and other methods for removing senior judiciary; the pressures on courts from cost-cutting in a time of austerity; and the limited remedies available domestically and internationally against governments that seek to bend judges to their will.”

Finally in this context: the IBA will soon publish a study relating to typologies of corruption in the judiciary.

In my analyses, irrespective of the subject matter – be it peace and security, climate change, the Sustainable Development Goals, empowerment of women – I have a tendency to end up in the Security Council of the United Nations, and in particular among the five permanent members of the Council. They are the ones who should set the example when it comes to establishing the rule of law both at the national and international levels. After the fall of the Berlin Wall in 1989, things started going in the right direction. However, in 2003 we experienced a serious turning point. I refer to the attack by the United States and the United Kingdom, both permanent members of the Security Council, on Iraq in flagrant violation of the UN Charter. In my view, this was also the seed of what is now Daesh or ISIS. 

Next came the attack by Russia, another permanent member of the UN Security Council, on Georgia in 2008. And now we have the situation in Ukraine. Both attacks are flagrant violations of the UN Charter and have resulted in extensive violations of human rights.

This is where I see a real need for reform[10] and where Western democracies should make a determined effort to contribute. The present situation in Syria and its consequences in Europe is actually the result of the inability of the members of the Security Council to unite and act with determination and consequence when this is needed the most. If they were able to do so, they would actually prevent conflicts of the nature that we are now experiencing, and which give rise to many of the problems that we are facing in the world at present.

As I said when I left the UN in 2004, what is needed is statesmanship. And there must be an understanding among the five permanent members of the Council that they must fulfil their mandate under the UN Charter: the primary responsibility for the maintenance of international peace and security. This requires that they unite and that they stop using illegitimate vetoes. Incidentally, France and the United Kingdom have not used their veto after the fall of the Berlin Wall in 1989.

In later years, we have also seen a serious development in the political field in Europe. New political parties with strong nationalistic ideas have emerged, hostile to international cooperation and no real commitment to observing human rights standards. Lately, this has been exacerbated by the situation created by the influx of a large number of refugees. Unfortunately, a similar development seems to take place in the United States.

This development has to be countered. What is needed here is a major educational effort. A particular focus should be education of politicians who have a very special responsibility for establishing and maintaining the rule of law. In the 2013 spring issue of International Judicial Monitor, I made reference to a short guide, some 40 pages only, entitled Rule of Law – A guide for politicians.[11] This guide is now available free of charge in 23 languages for downloading and printing from the web. All members in English-speaking parliaments in the world, including the U.S. Congress, should now also have received a personal copy of the original English version.

Needless to say, national bar associations have a very important role in establishing the rule of law. I was invited to address this question at a conference in Tehran on 26 July 2015, organised by the Union of the Iranian Bar Associations and the International Bar Association. Allow me to refer to my presentation on that occasion[12] entitled The function of Bar Associations to promote the rule of law – defending the rights of lawyers, educating the public about the rule of law. National bar associations can also assist in explaining to the general public that there are certain rules that apply, including rules established by a generation that had experienced two world wars. If governments go astray, it is important that lawyers speak up.

Of particular importance in this educational effort is to keep in mind that the members of the United Nations have come to an understanding that the rule of law is an indispensable prerequisite for international peace and security. I refer here in particular to resolution A/RES/67/1 [13] adopted by the UN General Assembly on 24 September 2012: Declaration of the high-level meeting of the General Assembly on the rule of law at the national and international levels. Specific reference should be made to the following two paragraphs in this resolution:

1. We reaffirm our solemn commitment to the purposes and principles of the Charter of the United Nations, international law and justice, and to an international order based on the rule of law, which are indispensable foundations for a more peaceful, prosperous and just world.

5. We reaffirm that human rights, the rule of law and democracy are interlinked and mutually reinforcing and that they belong to the universal and indivisible core values and principles of the United Nations.

Finally, with respect to the United States and the United Nations, let me once again quote President Dwight D. Eisenhower. In his Second Inaugural Address[14] on 21 January 1957, the President and former general said:

We recognize and accept our own deep involvement in the destiny of men everywhere. We are accordingly pledged to honor, and to strive to fortify, the authority of the United Nations. For in that body rests the best hope of our age for the assertion of that law by which all nations may live in dignity.

Where did this wisdom go?


[2] SG(2015)1E 29 April 2015, available at.








[10] The Mandate of the Security Council in a Changing World. In: International Law and Changing Perceptions of Security. Eds. Jonas Ebbesson, Marie Jacobsson, Mark Klamberg, David Langlet and Pål Wrange. Leiden/Boston: Brill/Martinus Nijhoff Publishers (2014) (p. 39-58), available at

[11] Reference is made to

[12] Available at


[14] See e.g.

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