International Law Observer analyzes the Report of the UN Special Rapporteur on the independence of judges and lawyers, issued 24 March 2009. The report was endorsed by the Human Rights Council during its twelfth session this past October.
2. Mandate of the Rapporteur
The office of the Special Rapporteur was established through resolution 1994/41 of the Commission on Human Rights (‘UNCHR’), based primarily on a West-/East-European initiative. With this creation the UNCHR for the first time went beyond its practice of establishing Special Rapporteurs to monitor human rights protection and instead made a structural principle of national constitutional law the object of investigations by a thematic procedure. The mandate laid down in the founding resolution encompassed (I) the inquiry into substantial allegations, (II) the identification of attacks on the independence of the judiciary and progress made in protecting and enhancing the independence, and (III) the providing of concrete recommendations and proposals with a view to protecting and enhancing the independence of the judiciary. The Rapporteur is hence entitled to address individual cases upon complaints he receives, if they concern the independence of the judiciary. However, different from the contents of other similar resolutions establishing special procedures, the Rapporteur was not expressly entitled ‘to seek and receive information’. Yet the wording ‘to inquire’ (para. 3(a)) suggests that the Rapporteur is merely barred from seeking information on his own will or motion (sua sponte), not from gathering material in support of an alleged violation brought to his attention. The task of identifying ‘progress achieved in protecting and enhancing [the judiciary’s] independence’ makes the characterization as a thematic rapporteur overly inadequate. But making use of the Rapporteur also as a study mechanism is indeed in line with the subject of independence of the judiciary, which must be appropriately analyzed not only on an individual but also institutional level. The mandate was equipped with a three-year tenure, common for comparable thematic or country specific procedures. In June 2008 the mandate was extended by resolution 8/6 of the HRC to also encompass the identification of and the making of concrete recommendations on ways and means to improve the judicial system, to apply a gender perspective, to cooperate with other relevant UN bodies and to report regularly to the HRC and to the UNGA. The report presented here is a result of this duty to report.
5. Summary and Conclusion
The report is not legally binding; neither in the form of a document issued by the Special Rapporteur nor following its endorsement by the HRC. Considering that the reports of the Rapporteur so far never attempt to identify any list of standards on judicial independence, but instead primarily focused on reporting on country visits and identifying individual issues that are of interest from the viewpoint of protecting the independence of judges, the report is a novelty. It deserves in my view credit for once again strengthening the standing of the principle of judicial independence as a binding obligation even under international law, although I would personally be more cautious with calling the principle even a customary rule of international law. But this optimistic stance of the Rapporteur ought to be seen in the light of the political nature of his mandate. One detail that should be addressed regarding the elements the Rapporteur identifies is that he often speaks of an ‘independent organ’ which in various contexts could help to secure judicial independence. For example regarding decisions on judges’ promotion, selection and appointment, judicial budget, training of judges etc. Yet the Rapporteur does not in his final recommendations endorse e.g. the creation of judicial councils or any other body. Only the future will tell what the preferences of the Rapporteur are and if the creation of judicial councils in charge of much of the administration of the judiciary is to be seen as favorable.
The elements identified by the Rapporteur can and should be seen as an incomplete catalog, and their formulation does even seem a bit puzzling when compared to the vast number of documents that are already available on the topic. Two reasons may nevertheless justify their codification in the report: (I) Firstly, the topic is one that is highly topical and will remain so in the future. Judicial independence is not something that is once and for all established, but it is in need of constant monitoring so as to identify and mobilize protection against old and new threats that may arise from the particular contexts of the national legal systems. (II) Secondly, the concretization of what the different parameters of judicial independence involve, may serve the purpose of producing a practical working-framework for the Special Rapporteur himself. The Rapporteur, Mr. Despouy, refers explicitly, in defining the parameters, to the fact that this is done in his last report. Although in the final recommendations of the report it is stated that the set of principles thus elaborated ‘may serve as a reference to all Member States’, the immediate addressee of them might rather be the mandate itself, in its future work to monitor if States comply with international standards. As the mandate of the Rapporteur was extended until 2011 it will be interesting to follow if and how the Rapporteur will apply his own standards.
View the full report of the Special Rapporteur here.