The Normative Cycle of Shaping Judicial Independence in Domestic and International Law: The Mutual Impact of National and International Jurisprudence and Contemporary Practical and Conceptual Challenges

By Shetreet, Shimon | Chicago Journal of International Law, Summer 2009 | Go to article overview

The Normative Cycle of Shaping Judicial Independence in Domestic and International Law: The Mutual Impact of National and International Jurisprudence and Contemporary Practical and Conceptual Challenges


Shetreet, Shimon, Chicago Journal of International Law


I. INTRODUCTION

The creation of the culture of judicial independence has been a combined process of national and international developments. The process consists of a cycle of normative and conceptual impact of national law on international law and later, of international law on national law. In the cycle's first phase, which began in 1701 with England's enactment of the Act of Settlement,1 judicial independence was conceived domestically. In die second phase, which began shordy thereafter, this domestic development crossed national boundaries and impacted the thinking of scholars and political leaders in the international community. It brought about the formulation of established principles of judicial independence on the transnational levels, both regional and global. In the third phase, in which we find ourselves today, the international law of judicial independence begins to impact the domestic laws of nations with significant and even dramatic results.

The impact of international law on judicial independence has been influenced by international human rights treaties that contain principles on fair procedure and the right to be tried before an impartial and independent tribunal.2 International standards of judicial independence have made significant contributions to local rules, which have been reinforced by international jurisprudence.3 Some of the most influential international standards were drafted by professional nongovernmental and intergovernmental organizations. One recent example is the Mt. Scopus International Standards on Judicial Independence ("Mt. Scopus Standards").4 Conceived in 2007, when an international group of legal academics and professional jurists developed the vision of revised minimum standards on judicial independence, the document was finalized in 2008. The development of the Mt. Scopus Standards was necessitated by the absence of a modern, thorough revision of standards for both national and international judges. This dearth was problematic. In order for standards to remain relevant and to continue as cornerstones for the substantive protection of human rights and a healthy economic state, it was critical that they be contemporary.

The Mt. Scopus Standards are based on a number of sources: The Burgh House Prindples on the Independence of the International Judiciary,5 the International Bar Association's Code of Minimum Standards of 'Judicial Independence ("IBA Standards"),6 the Tokyo Principles on the Independence of the Judiciary in the Lawasia Region J Universal Declaration on the Independence of Justice,8 Basic Principles on the Independence of the Judiciary,9 and the Revised Draft of Proposed New Canon to American Bar Association's Model Code of Judicial Conduct.10

Principles of independence in the judiciary are essential for ensuring the rule of law, protecting human rights, and securing the continued preservation and development of democratic societies. As such, these international standards have had a positive impact on the creation of a culture of judicial independence as an established and accepted system of conceptual principles. These principles are essential for ensuring the rule of law, protecting human rights, and securing the continued preservation and development of democratic societies. Vic Toews, Canada's former Minister of Justice and Attorney General, succinctly explained:

It goes without saying that the rule of law requires a robust and independent judiciary. An effective judicial system inhibits both the state and private parties from acting arbitrarily. This helps promote social stability, progress and prosperity. An independent judiciary is necessary to provide definitive judgments on the interpretation of the law and how it is applied to particular disputes.11

I was privileged to help guide the creation of one of the earlier set of standards of judicial independence, the IBA Standards, adopted and confirmed at the 1982 IBA convention in New Delhi. …

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