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.