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Tuesday, November 21, 2023

Refugee law

From Wikipedia, the free encyclopedia

Refugee law is the branch of international law which deals with the rights and duties states have vis-a-vis refugees. There are differences of opinion among international law scholars as to the relationship between refugee law and international human rights law or humanitarian law.

The discussion forms part of a larger debate on the fragmentation of international law. While some scholars conceive each branch as a self-contained regime distinct from other branches, others regard the three branches as forming a larger normative system that seeks to protect the rights of all human beings at all time. The proponents of the latter conception view this holistic regime as including norms only applicable to certain situations such as armed conflict and military occupation (IHL) or to certain groups of people including refugees (refugee law), children (the Convention on the Rights of the Child), and prisoners of war (the Geneva Convention (III) relative to the Treatment of Prisoners of War).

Definition of 'refugee'

There is a variety of definitions as to who is regarded as a refugee, usually defined for the purpose of a particular instrument. The variation of definitions regarding refugees has made it difficult to create a concrete and single vision of what constitutes a refugee following the original refugee convention. Article 1 of the 1951 Refugee Convention, as amended by the 1967 Protocol, defines a refugee as:

A person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

The 1967 Protocol removed the temporal restrictions that restricted refugee status to those whose circumstances had come about "as a result of events occurring before 1 January 1951," and the geographic restrictions that gave participating states of the Convention the option of interpreting this as "events occurring in Europe" or "events occurring in Europe or elsewhere". However, it also gave those states that had previously ratified the 1951 Convention and chose to use the geographically-restricted definition the option to retain that restriction.

The Organisation of African Unity (OAU) Convention Governing the Specific Aspects of Refugee Problems in Africa adopted a regional treaty based on the Convention, adding to the definition of refugee as:

Any person compelled to leave his/her country owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality.

In 1984, a group of Latin-American governments adopted the Cartagena Declaration on Refugees, which, like the OAU Convention, added more objectivity based on significant consideration to the 1951 Convention. The Cartagena Declaration determine that a refugee includes:

Persons who flee their countries because their lives, safety or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order.

Difference from 'asylee' and 'displaced person'

Additionally, U.S. Law draws an important distinction between refugees and asylees. A refugee must meet the definition of a refugee, as outlined in the 1951 Convention and be of "special humanitarian concern to the United States." Refugee status can only be obtained from outside the United States. If an individual who meets the definition of a refugee, and is seeking admission in a port of entry is already in the United States, they are eligible to apply for asylum status.

The term displaced person has come to be synonymous with refugees due to a substantial amount of overlap in their legal definitions. However, they are legally distinct, and convey subtle differences. In general, a displaced person refers to "one who has not crossed a national border and thus does not qualify for formal refugee status."

Refugee children

According to the original 1951 Refugee Convention and 1967 Protocol, refugee children were legally indistinguishable from adult refugees. In 1988, the United Nations High Commissioner for Refugees (UNHCR) Guidelines on Refugee Children were published, specifically designed to address the needs of refugee children, officially granting them internationally recognized human rights.

In 1989, however, the UN signed an additional treaty, the Convention on the Rights of the Child (CRC), which defined the rights of children and bound its signatories to upholding those rights by international law. Although the CRC was not specific to the rights of refugee minors, it was used as the legal blueprint for handling refugee minor cases, where a minor was defined as any person under the age of 18. In particular, it extends the protection of refugee children by allowing participating nations the capacity to recognize children who do not fall under the strict guidelines of the Convention definition but still should not be sent back to their countries of origin. It also extends the principle of non-refoulement to prohibit the return of a child to their country "where there are grounds for believing that there is a real risk of irreparable harm to the child."

International sources

Refugee law encompasses both customary law, peremptory norms, and international legal instruments. The only international instruments directly applying to refugees are the 1951 United Nations Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees. Both the Convention and the Protocol are open to states, but each may be signed separately. 145 states have ratified the Convention, and 146 have ratified the Protocol. These instruments only apply in the countries that have ratified an instrument, and some countries have ratified these instruments subject to various reservations.

International Refugee Laws
Year Law / Treaty / Declaration Organization / Depositary / Adoptees Notes
1948 Universal Declaration of Human Rights United Nations General Assembly
1951 United Nations Convention Relating to the Status of Refugees Secretary-General of the United Nations
1954 Treaty on Political Asylum and Refuge 6 Latin-American countries: Peru, Argentina, Uruguay, Bolivia, Paraguay, and Chile Signed on 4 August 1939 and entered into force on 29 December 1954.
1966 Bangkok Principles on Status and Treatment of Refugees Asian-African Legal Consultative Committee
1967 Protocol Relating to the Status of Refugees Secretary-General of the United Nations
1967 Declaration on Territorial Asylum United Nations General Assembly
1969 Convention Governing the Specific Aspects of Refugee Problems in Africa Organisation of African Unity (OAU)
1974 Declaration on the Protection of Women and Children in Emergency and Armed Conflict United Nations General Assembly
1976 Recommendation 773 (1976) on the Situation of de facto Refugees Council of Europe (CoE)
1984 Cartagena Declaration on Refugees
  • The 1994 Declaration of San José
  • The 2004 Mexico Declaration
  • The 2014 Brazil Declaration
10 Latin-American countries: Belize, Colombia, Costa Rica, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Panama, and Venezuela
1989 Convention on the Rights of the Child Secretary-General of the United Nations
1998 Conclusion on International Protection by the Executive Committee of the High Commissioner's Programme United Nations Human Rights Council (UNHRC)
2001 Declaration by States Parties to the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees

2003 Convention Plus United Nations High Commissioner for Refugees (UNHCR) Refugee resettlement was decided to be of central concern of UNHCR.
2004 Restriction of Hazardous Substances Directive 2002/95/EC European Union (EU) A Council Directive on minimum standards for the qualification and status of third-country nationals and stateless persons as refugees or as persons who otherwise need international protection and content of the protection granted.
2016 New York Declaration for Refugees and Migrants United Nations General Assembly

U.S. refugee law

Various regions and countries have different variations of refugee law. They all stem from the 1951 Convention and the 1967 Protocol which relates to refugee status. The United States became a party to this protocol in 1968.

Despite playing an active role in the drafting of the Convention on the Rights of the Child, the United States has yet to ratify the treaty, making it the only nation in the United Nations that is not party to it.

Refugee status first emerged as a legal category in the United States in the 1940s, responding to an influx of Eastern Europeans fleeing Communism. In response to this influx, Congress established refugee migration as "distinct and separate from general immigration admissions" upon the recommendation from the House Committee on Postwar Immigration. The Committee argued that the right to seek asylum be made "an explicit part of United States immigration policy."

Although the aftermath of World War II brought forth a refugee crisis, the large influx and resettlement of Indochinese refugees led to the passage of the Refugee Act of 1980. This law incorporated the International Convention's definitions of a refugee into U.S. law. In doing so, it codified into U.S. law that a refugee was an individual with a "well-founded fear of being persecuted for reasons of race, religion, nationality, membership in a particular social group or political opinion." Furthermore, ratifying this Convention meant the elimination of previous "ideological and geographical discriminations" against refugee and asylum seekers. These discriminations were a result of previous U.S. refugee law, which had served mainly as a tool for foreign policy agendas. The law also created the legal basis for the admission of refugees into the U.S. The Refugee Act of 1980 was the first time the United States created an objective decision-making process for asylum and refugee status. This included a joint system between Congress and the Presidency, in which both branches would collaborate to establish annual quotas and determine which national groups would receive prioritized consideration for refugee status. In doing so, the U.S. shifted away from a relatively reactionary system, in which refugee laws were only passed in response to political changes in the international community, primarily the spread of Communism. Instead, under the Refugee Act of 1980, the U.S. established a comprehensive framework for addressing refugee crises preemptively. This framework was built on emerging ideals of "humanitarianism". An important aspect of this law is how an individual goes about applying for status. A person may meet the definition of refugee but may not be granted refugee status. If the individual is inside of the U.S. with a different status or no status, they are granted the status of asylee but not refugee.

In order to be considered a refugee in the United States, an individual must:

  • be located outside of the U.S.
  • be of specific humanitarian apprehension for the U.S.
  • be able to validate previous persecution or feared approaching persecution based on the individual's race, religion, nationality, social class, or political outlook
  • not be currently settled in another country
  • be admissible to the United States

The first step of being granted this status is to receive a referral to the U.S. Refugee Admissions Program (USRAP). The person is allowed to include their spouse, child, or other family members (only in specific circumstances) when applying for refugee status. After the person is referred, a U.S. Citizenship and Immigration Services officer located abroad will conduct an interview to determine refugee resettlement eligibility inside the United States. If the person is approved as a refugee, they will then be provided with many forms of assistance. These include a loan for travel, advice for travel, a medical exam, and a culture orientation. After the refugee is resettled, they are eligible for medical and cash assistance. The Office of Refugee Resettlement (ORR) has a program called the Cash and Medical Assistance Program which completely reimburses the assistance in which states provide refugees. The refugee is eligible for this cash and medical assistance up to eight months after their arrival date.

In the United States, refugees are subject to annual quotas, which are determined by a joint collaboration between the incumbent Presidential administration and Congress. In addition to establishing the annual quota, Congress and the President determine which national groups are of special humanitarian concern to the United States. Since ratifying the 1980 Refugee Act, the United States has admitted over 3.1 million refugees from around the world, many of who were permanently resettled in the United States. Prior to the Trump Administration, the United States was the global leader in admitting refugees and offered refugee status to more individuals than the rest of the world altogether. Under the Trump administration, refugee immigration laws faced many challenges and setbacks, as administration officials sought to rollback immigration laws and decrease the annual number of refugees admitted. Challenges to refugee law included contesting practices of non-refoulement, which has been a long-standing principle of the U.S. immigration system. Attempts to reverse Trump-era policies have been a focus of the subsequent Biden presidential administration. In 2021, it was announced that Biden administration would raise the refugee cap from 15,000 individuals to 62,500 individuals.

Refugee status determination

The burden of refugee status determination (RSD) falls primarily on the state. However, in cases where states are either unwilling or unable, the UNHCR assumes responsibility. In 2013, the UNHCR managed RSD in over 50 countries and worked in parallel with national governments in 20 countries. In the period from 1997 to 2001, the number of RSD applications submitted to the UNHCR nearly doubled.

RSD provides protection for refugees through promoting non-refoulement, resettlement assistance, and direct assistance.

Human rights and refugee law

Human rights are the rights that a person is guaranteed by way of birth. The following are universal human rights that are most relevant to refugees:

  • The right to freedom from torture or degrading treatment
  • The right to freedom of opinion and expression
  • The right to freedom of thought, conscience, and religion
  • The right to life, liberty, and security
  • Freedom from discrimination
  • The right to asylum

Refugee law and international human rights law are closely connected in content but differ in their function. The main difference of their function is the way in which international refugee law considers state sovereignty while international human rights law do not. One of the core principles of international refugee law is the prohibition on refoulement (or the expulsion or return of a refugee), which is the basic idea that a country cannot send back a person to their country of origin if they will face endangerment upon return. In this case, a certain level of sovereignty is taken away from a country. This basic right of non-refoulement conflicts with the basic right of sovereign state to expel any undocumented aliens.

Monday, November 20, 2023

International human rights law

From Wikipedia, the free encyclopedia

International human rights law (IHRL) is the body of international law designed to promote human rights on social, regional, and domestic levels. As a form of international law, international human rights law are primarily made up of treaties, agreements between sovereign states intended to have binding legal effect between the parties that have agreed to them; and customary international law. Other international human rights instruments, while not legally binding, contribute to the implementation, understanding and development of international human rights law and have been recognized as a source of political obligation.

International human rights law, which governs the conduct of a state towards its people in peacetime is traditionally seen as distinct from international humanitarian law which governs the conduct of a state during armed conflict, although the two branches of law are complementary and in some ways overlap.

A more systemic perspective explains that international humanitarian law represents a function of international human rights law; it includes general norms that apply to everyone at all time as well as specialized norms which apply to certain situations such as armed conflict between both state and military occupation (i.e. IHL) or to certain groups of people including refugees (e.g. the 1951 Refugee Convention), children (the Convention on the Rights of the Child), and prisoners of war (the 1949 Third Geneva Convention).

United Nations system

The General Assembly of the United Nations adopted the Vienna Declaration and Programme of Action in 1993, in terms of which the United Nations High Commissioner for Human Rights was established.

International Human Rights Day 2018 (45346105045)

In 2006, the United Nations Commission on Human Rights was replaced with the United Nations Human Rights Council for the enforcement of international human rights law. The changes prophesied a more structured organization along with a requirement to review human rights cases every four years. The United Nations Sustainable Development Goal 10 also targets the promotion of legislation and policies towards reducing inequality.

International Bill of Human Rights

Universal Declaration of Human Rights

Eleanor Roosevelt UDHR

The Universal Declaration of Human Rights (UDHR) is a UN General Assembly declaration that does not in form create binding international human rights law. Many legal scholars cite the UDHR as evidence of customary international law.

More broadly, the UDHR has become an authoritative human rights reference. It has provided the basis for subsequent international human rights instruments that form non-binding, but ultimately authoritative international human rights law.

International human rights treaties

Besides the adoption in 1966 of the two wide-ranging Covenants that form part of the International Bill of Human Rights (namely the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights), other treaties have been adopted at the international level. These are generally known as human rights instruments. Some of the most significant include the following:

Regional protection and institutions

Regional systems of international human rights law supplement and complement national and international human rights law by protecting and promoting human rights in specific areas of the world. There are three key regional human rights instruments which have established human rights law on a regional basis:

Americas and Europe

The Organisation of American States and the Council of Europe, like the UN, have adopted treaties (albeit with weaker implementation mechanisms) containing catalogues of economic, social and cultural rights, in addition to the aforementioned conventions dealing mostly with civil and political rights:

  • the European Social Charter for Europe of 1961, in force since 1965 (whose complaints mechanism, created in 1995 under an Additional Protocol, has been in force since 1998); and
  • the Protocol of San Salvador to the ACHR for the Americas of 1988, in force since 1999.

Africa

The African Union (AU) is a supranational union consisting of 55 African countries. Established in 2001, the AU's purpose is to help secure Africa's democracy, human rights, and a sustainable economy, in particular by bringing an end to intra-African conflict and creating an effective and productive common market.

The Charter on Human and Peoples' Rights is the region's principal human rights instrument, which emerged under the aegis of the Organisation of African Unity (OAU) (since replaced by the African Union). The intention to draw up the African Charter on Human and Peoples' Rights was announced in 1979. The Charter was unanimously approved at the OAU's 1981 Assembly.

Pursuant to Article 63 (whereby it was to "come into force three months after the reception by the Secretary General of the instruments of ratification or adherence of a simple majority" of the OAU's member states), the African Charter on Human and Peoples' Rights came into effect on 21 October 1986, in honour of which 21 October was declared African Human Rights Day.

The African Commission on Human and Peoples' Rights (ACHPR) is a quasi-judicial organ of the African Union, tasked with promoting and protecting human rights and collective (peoples') rights throughout the African continent, as well as with interpreting the African Charter on Human and Peoples' Rights, and considering individual complaints of violations of the Charter. The commission has three broad areas of responsibility:

  1. promoting human and peoples' rights;
  2. protecting human and peoples' rights; and
  3. interpreting the African Charter on Human and Peoples' Rights.

In pursuit of these goals, the commission is mandated to "collect documents, undertake studies and researches on African problems in the field of human and peoples' rights, organise seminars, symposia and conferences, disseminate information, encourage national and local institutions concerned with human and peoples' rights and, should the case arise, give its views or make recommendations to governments."

With the creation of the African Court on Human and Peoples' Rights (under a protocol to the Charter which was adopted in 1998 and entered into force in January 2004), the commission will have the additional task of preparing cases for submission to the Court's jurisdiction. In a July 2004 decision, the AU Assembly resolved that the future Court on Human and Peoples' Rights would be integrated with the African Court of Justice.

The Court of Justice of the African Union is intended to be the "principal judicial organ of the Union".[19][20] Although it has not yet been established, it is intended to take over the duties of the African Commission on Human and Peoples' Rights, as well as to act as the supreme court of the African Union, interpreting all necessary laws and treaties. The Protocol establishing the African Court on Human and Peoples' Rights entered into force in January 2004, but its merging with the Court of Justice has delayed its establishment. The Protocol establishing the Court of Justice will come into force when ratified by fifteen countries.

There are many countries in Africa accused of human rights violations by the international community and NGOs.

Inter-American system

The Organization of American States (OAS) is an international organization headquartered in Washington, DC. Its members are the thirty-five independent nation-states of the Americas.

Over the course of the 1990s, with the end of the Cold War, the return to democracy in Latin America, and the thrust toward globalisation, the OAS made major efforts to reinvent itself to fit the new context. Its stated priorities now include the following:

  • strengthening democracy;
  • working for peace;
  • protecting human rights;
  • combating corruption;
  • the rights of indigenous peoples; and
  • promoting sustainable development.

The Inter-American Commission on Human Rights (IACHR) is an autonomous organ of the Organization of American States, also based in Washington, D.C. Along with the Inter-American Court of Human Rights, based in San José, Costa Rica, it is one of the bodies that comprise the inter-American system for the promotion and protection of human rights. The IACHR is a permanent body which meets in regular and special sessions several times a year to examine allegations of human rights violations in the hemisphere. Its human rights duties stem from three documents:

  1. the OAS Charter;
  2. the American Declaration of the Rights and Duties of Man; and
  3. the American Convention on Human Rights.

The Inter-American Court of Human Rights was established in 1979 with the purpose of enforcing and interpreting the provisions of the American Convention on Human Rights. Its two main functions are therefore adjudicatory and advisory:

  • Under the former, it hears and rules on the specific cases of human rights violations referred to it.
  • Under the latter, it issues opinions on matters of legal interpretation brought to its attention by other OAS bodies or member states.

Many countries in the Americas, including Colombia, Cuba, Mexico and Venezuela, have been accused of human rights violations.

European system

The Council of Europe, founded in 1949, is the oldest organisation working for European integration. It is an international organisation with legal personality recognised under public international law, and has observer status at the United Nations. The seat of the council is in Strasbourg in France.

The Council of Europe is responsible for both the European Convention on Human Rights and the European Court of Human Rights. These institutions bind the council's members to a code of human rights which, although strict, is more lenient than that of the UN Charter on human rights.

The council also promotes the European Charter for Regional or Minority Languages and the European Social Charter. Membership is open to all European states which seek European integration, accept the principle of the rule of law, and are able and willing to guarantee democracy, fundamental human rights and freedoms.

The Council of Europe is separate from the European Union, but the latter is expected to accede to the European Convention on Human Rights. The Council includes all the member states of European Union. The EU also has a separate human rights document, the Charter of Fundamental Rights of the European Union.

The European Convention on Human Rights has since 1950 defined and guaranteed human rights and fundamental freedoms in Europe. All 47 member states of the Council of Europe have signed this convention, and are therefore under the jurisdiction of the European Court of Human Rights in Strasbourg. In order to prevent torture and inhuman or degrading treatment, the Committee for the Prevention of Torture was established.

The Council of Europe also adopted the Convention on Action against Trafficking in Human Beings in May 2005, for protection against human trafficking and sexual exploitation, the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse in October 2007, and the Convention on preventing and combating violence against women and domestic violence in May 2011.

The European Court of Human Rights is the only international court with jurisdiction to deal with cases brought by individuals rather than states. In early 2010, the court had a backlog of over 120,000 cases and a multi-year waiting list. About one out of every twenty cases submitted to the court is considered admissible. In 2007, the court issued 1,503 verdicts. At the current rate of proceedings, it would take 46 years for the backlog to clear.

Monitoring, implementation and enforcement

There is currently no international court to administer international human rights law, but quasi-judicial bodies exist under some UN treaties (like the Human Rights Committee under the ICCPR). The International Criminal Court (ICC) has jurisdiction over the crime of genocide, war crimes and crimes against humanity. The European Court of Human Rights and the Inter-American Court of Human Rights enforce regional human rights law.

Although these same international bodies also hold jurisdiction over cases regarding international humanitarian law, it is crucial to recognise, as discussed above, that the two frameworks constitute different legal regimes.

The United Nations human rights bodies do have some quasi-legal enforcement mechanisms. These include the treaty bodies attached to the seven currently active treaties, and the United Nations Human Rights Council complaints procedures, with Universal Periodic Review and United Nations Special Rapporteur (known as the 1235 and 1503 mechanisms respectively).

The enforcement of international human rights law is the responsibility of the nation state; it is the primary responsibility of the State to make the human rights of its citizens a reality.

In practice, many human rights are difficult to enforce legally, due to the absence of consensus on the application of certain rights, the lack of relevant national legislation or of bodies empowered to take legal action to enforce them.

In over 110 countries, national human rights institutions (NHRIs) have been set up to protect, promote or monitor human rights with jurisdiction in a given country. Although not all NHRIs are compliant with the Paris Principles, the number and effect of these institutions is increasing.

The Paris Principles were defined at the first International Workshop on National Institutions for the Promotion and Protection of Human Rights in Paris from 7 to 9 October 1991, and adopted by UN Human Rights Commission Resolution 1992/54 of 1992 and General Assembly Resolution 48/134 of 1993. The Paris Principles list a number of responsibilities for NHRIs.

Universal jurisdiction

Universal jurisdiction is a controversial principle in international law, whereby states claim criminal jurisdiction over people whose alleged crimes were committed outside the boundaries of the prosecuting state, regardless of nationality, country of residence or any other relationship to the prosecuting country. The state backs its claim on the grounds that the crime committed is considered a crime against all, which any state is authorized to punish. The concept of universal jurisdiction is therefore closely linked to the idea that certain international norms are erga omnes, or owed to the entire world community, as well as the concept of jus cogens.

In 1993, Belgium passed a "law of universal jurisdiction" to give its courts jurisdiction over crimes against humanity in other countries. In 1998, Augusto Pinochet was arrested in London following an indictment by Spanish judge Baltasar Garzón under the universal-jurisdiction principle. Adolf Eichmann who was the former Nazi SS lieutenant colonel accused of overseeing the transfer of Jews to Holocaust death camps also persecuted in Israel in 1961. Adolf was living in Argentina after the war. The principle is supported by Amnesty International and other human rights organisations, which believe that certain crimes pose a threat to the international community as a whole, and that the community has a moral duty to act.

Others, like Henry Kissinger, argue that "widespread agreement that human rights violations and crimes against humanity must be prosecuted has hindered active consideration of the proper role of international courts. Universal jurisdiction risks creating universal tyranny—that of judges".

Judicial independence

From Wikipedia, the free encyclopedia

Judicial independence is the concept that the judiciary should be independent from the other branches of government. That is, courts should not be subject to improper influence from the other branches of government or from private or partisan interests. Judicial independence is important for the idea of separation of powers.

Many countries deal with the idea of judicial independence through different means of judicial selection, or choosing judges. One way to promote judicial independence is by granting life tenure or long tenure for judges, which ideally frees them to decide cases and make rulings according to the rule of law and judicial discretion, even if those decisions are politically unpopular or opposed by powerful interests. This concept can be traced back to 18th-century England.

In some countries, the ability of the judiciary to check the legislature is enhanced by the power of judicial review. This power can be used, for example, by mandating certain action when the judiciary perceives that a branch of government is refusing to perform a constitutional duty or by declaring laws passed by the legislature unconstitutional.

Theory of evolution

Alexander Hamilton, one of the Founding Fathers of the United States, by portraitist Daniel Huntington c. 1865. In The Federalist No. 78, published 28 May 1788, Hamilton wrote: "The complete independence of the courts of justice is particularly essential in a limited constitution."

Importance

Judicial independence serves as a safeguard for the rights and privileges provided by a limited constitution and prevents executive and legislative encroachment upon those rights. It serves as a foundation for the rule of law and democracy. The rule of law means that all authority and power must come from an ultimate source of law. Under an independent judicial system, the courts and its officers are free from inappropriate intervention in the judiciary's affairs. With this independence, the judiciary can safeguard people's rights and freedoms which ensure equal protection for all.

The effectiveness of the law and the respect that people have for the law and the government which enacts it is dependent upon the judiciary's independence to mete out fair decisions. Furthermore, it is a pillar of economic growth as multinational businesses and investors have confidence to invest in the economy of a nation who has a strong and stable judiciary that is independent of interference. The judiciary's role in deciding the validity of presidential and parliamentary elections also necessitates independence of the judiciary.

Disadvantages

The disadvantages of having a judiciary that is seemingly too independent include possible abuse of power by judges. Self-interest, ideological dedication and even corruption may influence the decisions of judges without any checks and balances in place to prevent this abuse of power if the judiciary is completely independent. The relationship between the judiciary and the executive is a complex series of dependencies and inter-dependencies which counter-check each other and must be carefully balanced. One can be too independent of the other. Furthermore, judicial support of the executive is not as negative as it seems as the executive is the branch of government with the greatest claim to democratic legitimacy. Roger K. Warren writes that if the judiciary and executive are constantly feuding, no government can function well.

An extremely independent judiciary would also lack judicial accountability, which is the duty of a public decision-maker to explain and justify a decision and to make amendments where a decision causes injustice or problems. Judges are not required to give an entire account of their rationale behind decisions, and are shielded against public scrutiny and protected from legal repercussions. However judicial accountability can reinforce judicial independence as it could show that judges have proper reasons and rationales for arriving at a particular decision. Warren opines that while judges are not democratically accountable to the people, the key is for judges to achieve equilibrium between accountability and independence to ensure that justice is upheld.

Economic basis

Constitutional economics studies issues such as the proper distribution of national wealth including government spending on the judiciary. In transitional and developing countries, spending on the judiciary may be controlled by the executive. This undermines the principle of judicial independence because it creates a financial dependence of the judiciary on the executive. It is important to distinguish between two methods of corruption of the judiciary: the state (through budget planning and privileges) being the most dangerous, and private. State corruption of the judiciary can impede the ability of businesses to optimally facilitate the growth and development of a market economy.

In some countries, the constitution also prohibits the legislative branch from reducing salaries of sitting judges.

Development of the concept

National and international developments

The development of judicial independence has been argued to involve a cycle of national law having an impact on international law, and international law subsequently impacting national law. This is said to occur in three phases: the first phase is characterized by the domestic development of the concept of judicial independence, the second by the spread of these concepts internationally and their implementation in international law, and the third by the implementation in national law of these newly formulated international principles of judicial independence.

A notable example illustrating this cycle is the United Kingdom. The first phase occurred in England with the original conception of judicial independence in the Act of Settlement 1701. The second phase was evident when England's concepts regarding judicial independence spread internationally, and were adopted into the domestic law of other countries; for instance, England served as the model for Montesquieu’s separation of powers doctrine, and the Founding Fathers of the US Constitution used England as their dominant model in formulating the Constitution's Article III, which is the foundation of American judicial independence. Other common law countries, including Canada, Australia, and India, also adopted the British model of judicial independence.

In recent decades the third phase of judicial independence has been evident in the UK, as it has been significantly influenced by judicial independence principles developed by international human rights constitutional documents. The European Court of Human Rights (ECtHR) has had a significant impact on the conceptual analysis of judicial independence in England and Scotland. This process began in the 1990s with the ECtHR hearing UK cases and, more significantly, in the application of the European Convention on Human Rights in British law through the Human Rights Act 1998, which came into force in the UK in 2000.

Where British national law had previously impacted the international development of judicial independence, the British Constitutional Reform Act 2005 marked a shift, with international law now impacting British domestic law. The Constitutional Reform Act dramatically reformed government control over the administration of justice in England and Wales; importantly, it discontinued the position of the Lord Chancellor, one of the country's oldest constitutional offices, who was entrusted with a combination of legislative, executive, and judicial capacities. The Lord Chancellor served as speaker of the Upper House of Parliament, the House of Lords; as a member of the executive branch and member of the senior cabinet; and as the head of the judiciary. Historically, the appellate function had a connection with the executive branch due to the types of cases typically heard – impeachment and the hearing of felony charges against peers. The Constitutional Reform Act established new lines of demarcation between the Lord Chancellor and the judiciary, transferring all the judicial functions to the judiciary and entrusting the Lord Chancellor only with what are considered administrative and executive matters. In addition, the Constitutional Reform Act replaced the Lord Chancellor by the Lord Chief Justice as head of the judiciary, separated the judicial Appellate Committee of the House of Lords from the legislative parliament, reforming it as the Supreme Court, and creating a Judicial Appointments Commission. The creation of the Supreme Court was important, for it finally separated the highest court of appeal from the House of Lords.

Thus, the United Kingdom, where judicial independence began over three hundred years ago, illustrates the interaction over time of national and international law and jurisprudence in the area of judicial independence. In this process, concepts and ideas have become enriched as they have been implemented in successive judicial and political systems, as each system has enhanced and deepened the concepts and ideas it actualized. In addition to the UK, similar developments of conceptual cross-fertilization can be seen internationally, for example in European Union law, in civil law countries such as Austria, and in other common law jurisdictions including Canada.

International standards

The International Association of Judicial Independence and World Peace produced the Mt. Scopus International Standards of Judicial Independence between 2007 and 2012. These built on the same association's New Delhi Minimum Standards on Judicial independence adopted in 1982 and their Montréal Universal Declaration on the Independence of Justice in 1983. Other influences they cite for the standards include the UN Basic Principles of Judicial Independence from 1985, the Burgh House Principles of Judicial Independence in International Law (for the international judiciary), Tokyo Law Asia Principles, Council of Europe Statements on judicial independence (particularly the Recommendation of the Committee of Ministers to Member States on the independence, efficiency and role of judges), the Bangalore Principles of Judicial Conduct 2002, and the American Bar Association's revision of its ethical standards for judges.

The justice system

In recent years, the principle of judicial independence has been described as one of the core values of the justice system.

Judicial independence metrics

Judicial independence metrics allow a quantitative analysis of judicial independence for individual countries. One judicial independence metric is the high court independence index in the V-Dem Dataset, where higher values indicate higher independence, shown below for individual countries.

Country
High court independence index for 2021

Judicial independence by country

Australia

There was a struggle to establish judicial independence in colonial Australia, but by 1901 it was entrenched in the Australian constitution, including the separation of judicial power such that the High Court of Australia held in 2004 that all courts capable of exercising federal judicial power must be, and must appear to be, independent and impartial. Writing in 2007 Chief Justice of Australia Murray Gleeson stated that Australians largely took judicial independence for granted and the details were not matters of wide interest. No federal judge and only one supreme court judge has been removed for misconduct since 1901. Immunity from suit for judicial acts, security of tenure, and fixed remuneration are all established parts of judicial independence in Australia. The appointment of judges remains exclusively at the discretion of the executive which gives rise to concerns expressed that judicial appointments are political and made for political gain. Issues continue to arise in relation to dealing with judicial misconduct not warranting removal and incapacity of judges. In 2013 Chief Justice of NSW Tom Bathurst identified the way in which judicial and court performance was measured as one of the most substantial risks to the separation of powers in Australia.

Canada

Canada has a level of judicial independence entrenched in its Constitution, awarding superior court justices various guarantees to independence under sections 96 to 100 of the Constitution Act, 1867. These include rights to tenure (although the Constitution has since been amended to introduce mandatory retirement at age 75) and the right to a salary determined by the Parliament of Canada (as opposed to the executive). In 1982 a measure of judicial independence was extended to inferior courts specializing in criminal law (but not civil law) by section 11 of the Canadian Charter of Rights and Freedoms, although in the 1986 case Valente v. The Queen it was found these rights are limited. They do, however, involve tenure, financial security and some administrative control.

The year 1997 saw a major shift towards judicial independence, as the Supreme Court of Canada in the Provincial Judges Reference found an unwritten constitutional norm guaranteeing judicial independence to all judges, including civil law inferior court judges. The unwritten norm is said to be implied by the preamble to the Constitution Act, 1867. Consequently, judicial compensation committees such as the Judicial Compensation and Benefits Commission now recommend judicial salaries in Canada. There are two types of judicial independence: institutional independence and decisional independence. Institutional independence means the judicial branch is independent from the executive and legislative branches. Decisional independence is the idea that judges should be able to decide cases solely based on the law and facts, without letting the media, politics or other concerns sway their decisions, and without fearing penalty in their careers for their decisions.

Hong Kong

In Hong Kong, independence of the judiciary has been the tradition since the territory became a British crown colony in 1842. After the 1997 transfer of sovereignty of Hong Kong to the People's Republic of China pursuant to the Sino-British Joint Declaration, an international treaty registered with the United Nations, independence of the judiciary, along with continuation of English common law, has been enshrined in the territory's constitutional document, the Basic Law.

Singapore

Judicial independence in Singapore is protected by the Constitution of Singapore, statutes such as the State Courts Act and Supreme Court of Judicature Act, and the common law. To safeguard judicial independence, Singapore law lays down special procedures to be followed before the conduct of Supreme Court judges may be discussed in Parliament and for their removal from office for misconduct, and provides that their remuneration may not be reduced during their tenure. By statute, judicial officers of the State Courts, and the Registrar, Deputy Registrar and assistant registrars of the Supreme Court have immunity from civil suits, and are prohibited from hearing and deciding cases in which they are personally interested. The common law provides similar protections and disabilities for Supreme Court judges.

The Chief Justice and other Supreme Court judges are appointed by the President of Singapore acting on the advice of the Cabinet of Singapore. The President must consult the Chief Justice when appointing other judges, and may exercise personal discretion to refuse to make an appointment if he does not concur with the Cabinet's advice. Supreme Court justices enjoy security of tenure up to the age of 65 years, after which they cease to hold office. However, the Constitution permits such judges to be re-appointed on a term basis.

United Kingdom

England and Wales

History

During the middle ages, under the Norman monarchy of the Kingdom of England, the king and his Curia Regis held judicial power. Judicial independence began to emerge during the early modern period; more courts were created and a judicial profession grew. By the fifteenth century, the king's role in this feature of government became small. Nevertheless, kings could still influence courts and dismiss judges. The Stuart dynasty used this power frequently in order to overpower the Parliament of England. After the Stuarts were removed in the Glorious Revolution of 1688, some advocated guarding against royal manipulation of the judiciary. King William III approved the Act of Settlement 1701, which established tenure for judges unless Parliament removed them.

Contemporary usage

Under the uncodified British Constitution, there are two important conventions which help to preserve judicial independence. The first is that the Parliament of the United Kingdom does not comment on the cases which are before the court. The second is the principle of parliamentary privilege: that Members of Parliament are protected from prosecution in certain circumstances by the courts.

Furthermore, the independence of the judiciary is guaranteed by the Constitutional Reform Act 2005. In order to try to promote the independence of the judiciary, the selection process is designed to minimize political interference. The process focuses on senior members of the judiciary rather than on politicians. Part 2 of the Tribunals, Courts and Enforcement Act 2007 aims to increase diversity among the judiciary.

The pay of judges is determined by an independent pay review body. It makes recommendations to the government after taking evidence from a variety of sources. The government accepts these recommendations and will traditionally implement them fully. As long as judges hold their positions in "good order," they remain in post until they wish to retire or until they reach the mandatory retirement age of 70.

Until 1 January 2010, the legal profession was self-regulating; with responsibility for implementing and enforcing its own professional standards and disciplining its own members. The bodies which performed this function were the Bar Council and the Law Society. However, this self-regulation came to an end when approved regulators came under the regulation of the Legal Services Board, composed of non-lawyers, following the passage of the Legal Services Act 2007. This saw the establishment of the Solicitors Regulation Authority to regulate solicitors and the Bar Standards Board to regulate barristers.

United States

Federal courts

Article III of the United States Constitution establishes the federal courts as part of the federal government.

The Constitution provides that federal judges, including judges of the Supreme Court of the United States, are appointed by the President "by and with the advice and consent of the Senate." Once appointed, federal judges:

...both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.

Federal judges vacate office only upon death, resignation, or impeachment and removal from office by Congress; only 13 federal judges have ever been impeached. The phrase "during good behavior" predates the Declaration of Independence. John Adams equated it with quamdiu se bene gesserint in a letter to the Boston Gazette published on 11 January 1773, a phrase that first appeared in section 3 of the Act of Settlement 1701 in England.

The President is free to appoint any person to the federal bench, yet typically he consults with the American Bar Association, whose Standing Committee on the Federal Judiciary rates each nominee "Well Qualified," "Qualified" or "Not Qualified."

State courts

State courts deal with independence of the judiciary in many ways, and several forms of judicial selection are used for both trial courts and appellate courts (including state supreme courts), varying between states and sometimes within states. In some states, judges are elected (sometime on a partisan ballot, other times on a nonpartisan one), while in others they are appointed by the governor or state legislature.

The 2000 case of Bush v. Gore, in which a majority of the Supreme Court, including some appointees of President George H. W. Bush, overruled challenges to the election of the George W. Bush then pending in the Florida Supreme Court, whose members had all been appointed by Democratic governors, is seen by many as reinforcing the need for judicial independence, both with regard to the Florida Supreme Court and the US Supreme Court. This case has increased focus and attention on judicial outcomes as opposed to the traditional focus on judicial qualifications.

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