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NEWSLETTER(Page 8)
Main Index
Index:
* Survey for IBA Member Organisations
* Commentary on the IBA's Rule of Law Resolution - response required
* IBA launches e-magazine on
International Criminal Court matters for lawyers
* Convention 'lawyers of the World'/ Avocats du monde
* Survey for IBA Member Organisations
At the recent Buenos Aires Annual Conference, Stephen Denyer, a representative of the IBA Group Law Firm Members, requested assistance from the IBA's 200 bar association and law society members in providing information on the 'double deontology' dilemma; that is, when a lawyer is handling a situation where multiple (and sometimes conflicting) ethics or regulatory provisions may apply.
The IBA plans to collate as much information on this as possible with the aim of making it widely available - this would be an invaluable resource to the international legal community, including lawyers from your own jurisdiction.
It is therefore important that ALL our member organisations reply to this survey. If there is no information available for your jurisdiction please do let us know, as that in itself will be useful to know.
The survey is available in two formats to complete as follows:
i) by simply returning the questionnaire attached with your answers and any relevant attachments. Please return to Nick Olley - olleysan@hotmail.com
OR
ii) by completing the questionnaire online at https://filestore.xmr3.com/138539/11836672/shared/DD%20UPDATED/DD_files/Message_Files/Message_Body.htm
Please complete and return the survey no later than January 31st 2009.
With kind regards,
Elaine Owen
BIC Project Manager
Sibylle Duell
PPID & BIC Administrator
Survey for IBA Member Organisations
The IBA recently has sponsored several programs on international lawyers double deontology dilemma, that is, when they are subject to multiple (and sometimes conflicting) ethics or regulatory provisions. I am working with the IBA to collect this information, with the goal of making it widely available.
Please answer whichever questions you can. I believe it would be useful for international lawyers to have available a central location they could go to in order to find the ethics codes from IBA Member Bars, similar to what the CCBE and NOBC (US) have done: http://ccbe.ntc.be/index.php?id=107&L=0 and http://www.nobc.org/links/professional_conduct.asp .
1. Is your ethics code (or other lawyer regulation provisions) available on the Internet? If so, please provide the URL.
2. What is the section number of your jurisdictions conflict of interest rule? (If it is not on the Internet, are you able to attach a copy?)
3. What is the section number of your jurisdictions confidentiality or professional secret provision? (If it is not on the Internet, are you able to attach a copy?)
4. Does your jurisdictions ethics code have a choice of law or double deontology? (By choice of law or double deontology, I mean a provision that would tell a lawyer which ethics rules to follow if the lawyer is subject to more than one jurisdictions rules.)
5. If your answer is yes, please provide the section number or citation and indicate whether it is available on the Internet? (If it is not on the Internet, are you able to attach a copy?)
6. Is a translation of your ethics code available? If so, please attach. (e.g., in French, English or Spanish?)
Thank you for your assistance. Please email your responses to Nick Olley (nick.olley@int-bar.org ) or complete and submit the survey on line at
https://filestore.xmr3.com/138539/11836672/shared/DD%20UPDATED/DD_files/Message_Files/Message_Body.htm
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Main Index
* Commentary on the IBA's Rule of Law Resolution - response required
At the Buenos Aires Council meeting, Francis Neate, Chair of the IBA Action Group on the Rule of Law set forth a commentary he had prepared on the IBA's 2005 Rule of Law Resolution. This document has been prepared over the past year in consultation with the rule of law action group and the BIC Policy Committee.
At the meeting it was suggested that before this document is put to a vote for acceptance by the IBA Council, every member organisation of the IBA should have the opportunity to comment, or make suggestions as to the drafting of the commentary. The IBA President agreed with this and has asked me to contact each of you for a response.
Therefore, as the representative Councillor of your organisation, it is your responsibility to advise the IBA whether you have any comments to make on the document. Please read it carefully and then reply to me as follows:
1. Advising that you have no comment to make.
2. With any amendments or comments you would like to suggest.
The IBA wishes to engage all its member organisations in contributing to key documents such as this that are placed before the IBA Council. Your response would be appreciated - even if it is with no comment so that I know that the document has been received and considered. As you will see, my email is elaine.owen@int-bar.org
The deadline for receipt of responses is 31st January 2009.
With kind regards.
Elaine Owen
BIC Project Manager
July 2008 Version
THE RULE OF LAW
A commentary on the IBA Councils Resolution of September 2005
INTRODUCTION
The following is the text of the Resolution passed by the IBA Council in September 2005:
''The International Bar Association (IBA), the global voice of the legal profession, deplores the increasing erosion around the world of the Rule of Law. The IBA welcomes recent decisions of courts in some countries that reiterate the principles underlying the Rule of Law. These decisions reflect the fundamental role of an independent judiciary and legal profession in upholding these principles. The IBA also welcomes and supports the efforts of its member Bar Associations to draw attention and seek adherence to these principles.
An independent, impartial judiciary; the presumption of innocence; the right to a fair and public trial without undue delay; a rational and proportionate approach to punishment, a strong and independent legal profession; strict protection of confidential communications between lawyer and client; equality of all before the law; these are all fundamental principles of the Rule of Law. Accordingly, arbitrary arrests; secret trials; indefinite detention without trial; cruel or degrading treatment or punishment; intimidation or corruption in the electoral process, are all unacceptable.
The Rule of Law is the foundation of a civilised society. It establishes a transparent process accessible and equal to all. It ensures adherence to principles that both liberate and protect. The IBA calls upon all countries to respect these fundamental principles. It also calls upon its members to speak out in support of the Rule of Law within their respective communities.''
Only two votes were cast against this Resolution. At the next meeting of the Council, the two members who voted against the Resolution declared their support for it and explained that they had only voted against it because they wanted it to be stronger. It can, therefore, be fairly said that the Resolution was passed without a single dissenting vote.
The IBA is the largest international organisation of lawyers in the world, its membership comprising about 195 Bar Associations and Law Societies from almost every nation and more than 30,000 individual lawyers, many of whom are leading international practitioners in their chosen fields. The IBA Council is the supreme governing body.
The Resolution is, therefore, an authoritative statement on behalf of the world-wide legal profession. However, it does not purport to be complete. It merely sets out some of the essential characteristics of the Rule of Law in a way which could be endorsed by the IBA Council and should command world-wide respect.
Since the Resolution was passed, it has become apparent that there may be some respects in which the scope of the Resolution can be expanded; and that it may also be helpful to offer an explanation of the reasoning behind the Resolution. This paper is an attempt to meet these limited objectives. It does not purport to be a definition.
PART I
THE FOUNDATIONS
The Rule of Law is the only mechanism so far devised to provide impartial control of the use of power by the State. That single sentence is sufficient to explain why the Rule of Law is pre-eminently the best available system for organising civilised society.
The Rule of Law is referred to in the preamble to the Universal Declaration of Human Rights (see Note ( ) below) and in other subsequent international treaties, without being defined. The relationship of the Rule of Law to other important concepts, such as Democracy and Human Rights, is discussed in Part III of this paper.
The Rule of Law is a relatively recent and developing concept. It has taken centuries for the Rule of Law to take root even in those countries which now claim to adhere to it. Those countries which, in the nineteenth century, would have claimed to be governed by the Rule of Law, have a very different view of its requirements today. Many other countries, in particular those emerging from colonial status or from various other forms of tyranny, have only recently had the opportunity to begin the attempt to establish it. It is arguable that there is no country which can claim to comply fully with its requirements.
This is why the IBA Council has not attempted to provide a definition of the Rule of Law (see Note ( ) below). Rather, it has simply provided a list of some of the essential characteristics (described in the Resolution as fundamental principles) of the Rule of Law. These are discussed in more detail in Part II of this paper. It may well be that, in time, it will be possible to identify other essential characteristics, or to expand upon those already listed. However, all these characteristics essentially rest upon two pillars:
(1) Submission of all to the law
(2) The separation of powers.
(1) Submission of all to the law
The Rule of Law means exactly that: the law is the ruler, the supreme authority. No-one is above or beyond the law. Everyone is subject to and governed by the law.
Experience suggests that the only way to control power is by countervailing power, not by an abstract concept such as law. It follows that the Rule of Law can only operate in a society in which it receives widespread acceptance - not just majority acceptance, but widespread acceptance. It is essential that the organs of state power - the executive branch of government, the armed forces, the police, the security services, even the Legislature and the Judiciary - all accept that they are subject to the law; and that, therefore, they may only exercise such powers as are granted to them by the law and in a way consistent with the law. It is also essential that the vast majority of the other members of society accept that they are subject to the law, even if they feel disadvantaged by it. If a sizeable minority feel themselves so disadvantaged that they have no option but to resort to disobedience or violence, civil unrest or even civil war will result.
It follows that the law must be identified, devised and administered in such a way as to continue to receive widespread acceptance within society. This requires a culture of respect for the Rule of Law which can take a long time to develop, and much care to maintain. Acceptance does not mean approval: nevertheless, it is this requirement for widespread acceptance which demands attention to minority rights and individual human rights. The law is unlikely to receive widespread acceptance unless it is widely regarded as reasonable, proportionate and fair.
Acceptance does not just mean obedience enforced by fear. It means respect for the body of law in general, which is demonstrated by voluntary overall compliance with the law. Experience suggests, however, that even a reasonable body of law will not continue to be acceptable to the members of a society if their basic economic needs cannot be satisfied over a significant time period.
The requirement of widespread acceptance means that the law must be responsive to the needs of the people it serves. Thus, over time, an extensive body of criminal, administrative and civil law will be developed. In many countries much of this process will take place long before the country in question can even begin to claim to adhere to the Rule of Law. All countries, even those governed by the crudest dictatorship, need or have laws, although they disregard the individual or collective rights of all or parts of the population. Indeed, apartheid was enforced with meticulous attention to legal form and detail.
If acceptance of the law can be achieved, it must be supplemented by enforcement. Acceptance of the law is irreconcilable with extensive tolerance of breaches of the law. Enforcement is a process which must itself be subject to the law.
A fair, independent and efficient process for resolving disputes between citizens and punishing criminality is, clearly, a fundamental requirement of any legal system. It is likely, therefore, that such a process will be provided by many legal systems which do not in other respects adhere to the Rule of Law. Accordingly, the IBA Councils Resolution scarcely refers to this aspect of a legal system at all, although it would be the first characteristic which would spring to mind for many. The inclusion of this requirement among the minimum essential characteristics of the Rule of Law could encourage countries which disregard the Rule of Law in other, crucial respects, to claim adherence to it and thereby deflect attention from their shortcomings.
The law will continue to change and develop in response to the changing and developing needs of its citizens even when the foundations of the Rule of Law are in place. Indeed, the more responsive the law is to need, the more change and development is likely to occur.
The provision and administration of the Rule of Law is expensive. It is a necessity required by all, but that does not lower its price.
(2) The separation of powers
This is the other cornerstone of the Rule of Law. The primary obligation of the State is to maintain internal order and to protect its citizens from external threat. The Rule of Law does not seek to diminish the power of the State. It seeks merely to assure its proper exercise. This is achieved by separating those who make the law (the Legislature), those who interpret and apply the law (the Judiciary) and those who have the power to enforce it (the Executive), each from the other. No-one has yet come up with a better formula. The three branches of government are not inherently hostile to each other. They work together under the Constitution and the Rule of Law, and at times their functions overlap. But the separation of their essentially different constitutional tasks must be jealously guarded.
The independence of both the Legislature and the Judiciary is, therefore, a fundamental requirement of the Rule of Law. In practice a perfect and complete separation of powers is difficult, if not impossible, to achieve: there has to be a system of checks and balances to ensure that the process of selecting and remunerating the persons entrusted with the respective powers does not compromise their independence.
As to the Legislature, it is difficult to conceive of an appropriate system of appointing it which does not involve a democratic vote. In many countries, the head of the Executive (President, Prime Minister or similar) is the leader of the majority party in the Legislature. In such cases, considerable vigilance is required to ensure that the Executive's control of the Legislature is not abused. Indeed, it is difficult to conceive of a system in which the Legislature is wholly free of influence by the Executive.
Many countries have a written constitution which guarantees, usually subject to exceptions, certain fundamental individual and minority rights. In these cases, extreme vigilance is required when the exceptions are invoked, and an even greater responsibility falls on the Judiciary, whose independence becomes all the more important.
There are similar issues in relation to the appointment of the Judiciary. It is fundamental to the Rule of Law that the system of appointment of the Judiciary does not impair the Judiciarys independence from influence by the Executive or the Legislature. Even more important is the requirement that the Judiciary, once appointed, should be free from any threat of removal or other form of intimidation from the other arms of government. Respect for the Rule of Law requires that there be independent, transparent mechanisms for the removal of judicial officers found guilty of misconduct, but it is essential that such mechanisms are beyond manipulation by other arms of government and do not undermine the independence of the Judiciary.
In addition, an independent Judiciary requires an efficient, functioning court system and a strong, independent, properly qualified legal profession to support it. An independent legal profession is also fundamental to the maintenance of citizens rights and freedoms under the Rule of Law, so that they are guaranteed access to independent, skilled, confidential and objective legal advice. Similar principles are required to protect the independence of the legal profession as for the Judiciary.
These fundamental requirements of the Rule of Law also call for the highest standards of skill, professionalism and integrity among the Judiciary and the legal profession. If these are not maintained, confidence in the legal process will be undermined. So will the necessary culture of respect for the Rule of Law. If this happens, the Executive and Legislative branches will be both tempted and enabled to interfere in the processes which protect their independence.
States of emergency
The Rule of Law is most likely to come under threat, even in countries which claim to abide by it, in times of war or other emergency, when the Executive is most likely to seek and the people most likely to be willing to grant it exceptional powers. This is a time when the utmost care and calm, rational consideration is required and when it is least likely to be provided. In such cases, the absolute necessity for a rigorous separation of powers becomes all the more important, because it will be the Executive which calls for the exceptions and it will be for the Legislature to create and for the Judiciary to interpret and oversee them. A proper balance must be struck. Even in such cases, exceptions to the fundamental requirements of the Rule of Law should not be admitted, otherwise the society in question will risk self-destruction. In many countries, the threat of war, counter-revolution or other emergency is frequently used as an excuse for not introducing the Rule of Law in the first place.
***************
Against this background, it is appropriate to examine the details of the IBA Councils Resolution. As already mentioned, the Resolution does not purport to be a definition: it merely sets out some of the essential characteristics (described as fundamental principles) of the Rule of Law. These characteristics can be deduced from the twin pillars which constitute its foundations.
PART II
THE IBA COUNCILS RESOLUTION
In light of the foregoing, it is appropriate to consider in turn each of the characteristics listed in the Resolution:
(A) An independent, impartial judiciary
This has been discussed in Part I above.
(B) The presumption of innocence
This is a fundamental aspect of the requirement of a fair trial. In essence, it is the requirement that the burden of proof must rest with the accuser to establish guilt, not with the accused to establish innocence. In cases where people may be branded as criminals and face serious penalties, it admits no exceptions.
(C) Fair and public trial without undue delay
The essential elements of a fair trial include that the accused must be fully and promptly informed of the offence which he or she is alleged to have committed and of the evidence which will be adduced in support; and that he or she be entitled to be advised and represented by an independent, properly qualified lawyer of his or her own choice.
The independence and integrity of the advice and representation he or she receives can only be guaranteed if the legal profession is as fully independent as the Judiciary and if communications with his or her legal advisers are completely confidential.
The concept of a fair trial is a matter of legal process and the legal systems in many countries have developed the details over many years. This accumulated wisdom cannot and should not be ignored. It will invariably be the Executive which argues that these fundamental requirements of the legal process should be reduced. For that reason alone, such arguments should be rigorously examined and the fundamental principles of the separation of powers rigorously applied.
The requirement of a public trial is a specific aspect of transparency and is presently, in some countries, a subject of controversy. It is possible that, in certain unusual circumstances, it will be argued that a trial (or at least some parts of it) should be held in secret, in the interests of national security. These arguments will invariably be put forward by the Executive and should, therefore, be rigorously examined and the fundamental requirements of the separation of powers rigorously applied. It is important that the political interests of those in authority not be equated with the national interest.
There will also be cases where it will be appropriate, in the interests of justice or protection of the parties (e.g. a child), for the proceedings to be held in secret. Such cases should be confined and very carefully considered.
(D) A rational and proportionate approach to punishment
A rational and proportionate approach to punishment is the alternative to cruel or degrading treatment or punishment which is expressly stated to be unacceptable later in the Resolution. It is the only rational alternative. Rationality, proportionality and fairness lie at the heart of the Rule of Law.
(E) A strong and independent legal profession
This has been discussed in Part I above.
(F) Strict protection of professional secrecy/confidential communications between lawyer and client
This has been referred to above. It is an essential element in the protection of the individual from the power of the State and in building confidence in the administration of justice.
(G) Equality of all before the law
The starting point for the Rule of Law is that every individual is entitled to the same level of dignity and respect; and that every individual should have the same (or, at least, broadly similar) rights and obligations. An abstract concept such as the Rule of Law can only start from this rational base. To reiterate, rationality, proportionality and fairness lie at the heart of the Rule of Law. Distinctions between individuals must, of course, be made, for example between adults and children (to take an uncontroversial example) that is an essential part of the legal process but these must be made rationally and proportionately, strictly in conformity with the fundamental principles of the Rule of Law and in accordance with the processes for law-making and law enforcement required by the Rule of Law.
(H) Arbitrary arrests; secret trials
These prohibitions require no elaboration.
(I) Indefinite detention without trial
Indefinite detention without trial is contrary to the Rule of Law. There are no exceptions. The key word is indefinite. It cannot be disputed that those accused or reasonably suspected of violent conduct can properly be detained pending trial, subject of course to independent judicial scrutiny at every stage, which is the key component for ensuring the maintenance of the Rule of Law.
(J) Cruel or degrading treatment or punishment
The phrase used in the international conventions is cruel, inhuman or degrading treatment or punishment. This encompasses torture. There are obvious reasons why cruel or degrading treatment of human beings is unacceptable. In addition, it is clear that evidence obtained by such methods is unreliable. There are no exceptions to the rule forbidding such behaviour.
(K) Intimidation and corruption
The IBA Councils Resolution is clearly defective in that it refers only to intimidation or corruption in the electoral process. Clearly, intimidation or corruption of any kind, in any part of the legal, administrative, legislative or electoral system, is inimical and contrary to the Rule of Law. There are no exceptions.
(L) A transparent process
Confidence in the system of governance in any society cannot be maintained unless the process is open and transparent. This does not mean that no communication can be treated as confidential. Indeed, one example has already been given where confidentiality is essential to the administration of justice, and there will be many others where it will be appropriate to impose an obligation of confidence. However, wherever it is claimed that an obligation of confidence should be recognised in any part of the legal, administrative or legislative system, the burden must rest on those claiming it to establish that the confidentiality is in the best interests of the system.
This also does not mean that an individuals right of privacy should not be respected.
Freedom of information, opinion and expression, although not mentioned specifically in the Resolution, are necessary aspects of transparency. Freedom of information and freedom of opinion are (subject to legitimate rules on secrecy and obligations of confidence) fundamental to the Rule of Law. Freedom of expression, on the other hand, is a more complex issue: one obligation inherent in any society is that opinions should not be expressed in a manner unreasonably offensive or provocative or unfairly damaging to other members of that society. Thus, most societies governed by the Rule of Law will be likely to legislate some limits on freedom of expression. Any such limits need to be rigorously examined to ensure that they do not limit freedom of information or opinion; any which limit reasoned criticism of others should be viewed with suspicion; and any which limit criticism of any part of government should be viewed with the utmost suspicion.
(M) Accessible and equal to all
The law must not impose any artificial impediments on an individuals ability to exercise his or her rights under the law. Financial impediments will always exist for some and it is an obligation of every society which abides by the Rule of Law to mitigate these to the extent practicable.
The law must be readily known, available in advance and certain and clear.
Retrospective law is almost invariably unacceptable.
In modern societies, the law is becoming increasingly complex. This forces the conclusion that a strong, independent legal profession is all the more important to a modern society adhering to the Rule of Law.
PART III
FURTHER COMMENTS
It may be helpful to discuss briefly the relationship between the Rule of Law and other concepts with which it is closely associated:
Politics The political process in a society governed by the Rule of Law is that by which the society debates and settles its differences and determines the rules by which it is governed. In a society not governed by the Rule of Law, the political process instead consists of an effort to persuade those with power not to exercise it, or to exercise it in a particular way. That is pleading, not free political debate. Thus, the Rule of Law is not part of every political process, rather it underpins and guarantees a proper process.
Democracy It is clear that democracy cannot exist in a society without the Rule of Law. (This does not mean that a democratically elected government cannot or will not undermine the Rule of Law.) It is not so clear that universal adult suffrage is an essential characteristic of the Rule of Law, but it will probably be the ultimate outcome in a society which develops and lives by the Rule of Law. Universal adult suffrage is a relatively recent phenomenon, dating (for example) from 1920 in the U.S. and 1928 in the U.K. Development of the structures within a society which support and maintain the Rule of Law can be a slow and tortuous process. However, it will become apparent as these structures are developed that the principal function of the law is to meet the needs of its citizens, and an extensive body of criminal, administrative and civil law will be constructed. Much of this process may well occur before the foundations of the Rule of Law are established; indeed, they may be part of the process whereby those foundations are established.
Reform The law, by its very nature, will tend to favour the status quo, because that is its function. This will inevitably be a cause of frustration to those who wish to reform their society. In a country whose constitution contains certain basic human rights, reform may be easier to achieve. This is not the place to discuss the morality of using violence to bring about reform within a society, or to advocate reform by enlightened but authoritarian rule. It is, however, relevant to point out that a society which ignores the justifiable grievances of a significant proportion of its members is unlikely to maintain the widespread acceptance of the Rule of Law which is fundamental to its survival.
Justice The law is the law. It does not invariably deliver justice, nor would any realist claim that it did or could always do so. Apart from unavoidable cases of injustice in individual cases due to human imperfection, every system governed by the Rule of Law will have rules to protect public order or achieve other goals which are considered so important that injustice in individual cases may occur, for example periods of limitation, limitations on rights of appeal against decisions by courts or governmental authorities, and the rule of res judicata. Nevertheless, the delivery of justice must be its aim, if only to maintain widespread acceptance within society. The Rule of Law is not the same as justice, but you cannot have justice without the Rule of Law.
Freedom The law limits freedom in many ways, so it can hardly be regarded as synonymous with freedom. However, its principal functions are (i) to liberate citizens from the tyranny of unrestrained state power and (ii) to protect citizens from exploitation or domination by others within society with greater power. The Rule of Law both liberates and protects.
Human Rights Equally, the Rule of Law cannot be regarded as synonymous with human rights. Some human rights, as discussed above, are necessary basic principles of the Rule of Law, others are more contentious - often a balance has to be struck between some rights and others, and different societies will arrive at different answers, using a political process underpinned by the Rule of Law. You cannot have human rights without the Rule of Law, but all human rights are not necessarily part of the law in every society governed by the Rule of Law. However, most countries are party to some or all of the relevant international conventions, notably the International Covenant on Civil and Political Rights; the International Covenant on Economic, Social and Cultural Rights; the Vienna Convention on the Law of Treaties; the United Nations Convention Against Torture; and the relevant regional instruments such as the African Charter on Human and Peoples' Rights; the American Convention on Human Rights; the Arab Charter on Human Rights; and the European Convention on Human Rights. These are in addition to the various conventions and their optional protocols relating to the rights of the child, the elimination of racial discrimination and discrimination against women. It is, therefore, appropriate to refer to these provisions, as well as the Universal Declaration of Human Rights, in any discussion of the extent to which a country adheres to the Rule of Law.
The Rule of Law is at least as much concerned with process as it is with the content of the law. If the processes whereby the law is created and enforced are rational, proportionate, fair and transparent, it is likely that the law will receive the requisite widespread acceptance and will not merely reflect the will of a single individual or group within society.
The Rule of Law is a relatively recent and fragile phenomenon, even in those countries where it is commonly regarded as well-established. Every country has to find its own path towards establishing the Rule of Law and no country can afford to be complacent once that has been achieved.
In the pursuit of a just society, the Rule of Law is the beginning, not the end.
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* IBA launches e-magazine on
International Criminal Court matters for lawyers
Dear IBA Member Organisation Representative,
Could you please widely disseminate news of this latest IBA development to further discourse between members of the legal profession.
Many thanks in advance for your cooperation.
Romana
NEWS RELEASE
IBA launches e-magazine on International Criminal Court matters for lawyers
In its continuing effort to encourage lawyers and bar associations to engage with the International Criminal Court (ICC), the International Bar Association (IBA) today launches a new e-magazine, EQ: Equality of Arms Review. This important publication informs lawyers about the ICCs work through a compilation of concise, thought-provoking articles on important developments at the Court. EQ will act as a valuable resource for lawyers worldwide.
Among the many articles in this exciting new publication is an opinion piece by Justice Richard Goldstone (the former Chief prosecutor at the International Criminal Tribunals for the former Yugoslavia and Rwanda). Entitled For Peaces Sake: Should Justice Defer to Politics, it critically assesses the implications of a possible UN Security Council deferral of an arrest warrant against Sudanese President Omar al-Bashir under Article 16 of the Rome Statute. In this regard Justice Goldstone states an Article 16 deferral [by the Security Council], should it occur, will likely be heralded as a failure for justice against the might of politics.
One unique purpose of EQ is to highlight specific issues faced by defendants and defence teams appearing before the ICC. In this regard, EQs first edition contains a special background feature on the defence team representing Thomas Lubanga, the ICCs first accused. In a stimulating commentary entitled Does the ICC matter to lawyers? lawyers worldwide are encouraged to engage fully with the ICC by signing up to the Courts list of counsel. The magazine also includes insightful commentary on major issues currently faced by the Court, including: disclosure challenges in the Lubanga case, the confirmation of charges against Mathieu Ngudjolo Chui and Germain Katanga and the need for states to implement Rome Statute legislation into their national laws.
Mark Ellis, IBA Executive Director, comments, The long term viability of the ICC depends on collaboration and support of the legal profession. Lawyers need timely information about key developments at the Court in a format that is quick, easy to read, yet comprehensive. He adds, EQ is an important resource that the IBA expects will increase knowledge and awareness about the ICC and act as an important bridge between the legal community and the Court.
Click here for the first edition of EQ: Equality of Arms Review
www.ibanet.org/images/downloads/11_EQ_News_November_2008.pdf
ENDS
For further information please contact:
Lorraine Smith
IBA Programme Manager
IBA/ICC Monitoring and Outreach Programme
The Peace Palace
Carnegieplein 2
2517 KJ The Hague
The Netherlands
Tel +31(0)70 302 2859
E-mail: lorraine.smith@int-bar.org
Website: www.ibanet.org
Liliana De Marco
IBA Programme Lawyer
IBA/ICC Monitoring and Outreach Programme
The Peace Palace
Carnegieplein 2
2517 KJ The Hague
The Netherlands
Tel +31(0)70 302 2827
E-mail: liliana.demarco@int-bar.org
Website: www.ibanet.org
Romana St. Matthew - Daniel
International Bar Association
Press Office
10th Floor
1 Stephen Street
London W1T 1AT
United Kingdom
Direct Line: +44 (0)20 7691 6837
Main Office: +44 (0)20 7691 6868
Mobile: +44 (0)7940 731915
Fax: +44 (0)20 7691 6544
E-mail: romana.daniel@int-bar.org
Website: www.ibanet.org
Background to the ICC Monitoring and Outreach Programme
In October 2005, the IBA started its ICC Monitoring and Outreach Programme funded by the MacArthur Foundation.
The IBA has a full-time monitor in The Hague who follows the work and the proceedings of the ICC, focusing in particular on issues affecting the fair trial rights of the accused, the implementation of the 1998 Rome Statute, the Rules of Procedure and Evidence, and related ICC documents, in the context of relevant international standards. Input is received from legal experts and other interested parties in assessing the work and proceedings of the Court.
As the ICC does not exist in a vacuum, the IBA Head of the outreach programme on the ICC, also based in The Hague, works in partnership with bar associations, lawyers and civil society organisations disseminating information and promoting debate on the ICC through the IBAs membership network. Thus the IBA aims to deepen the understanding of the ICC beyond the limits of the ongoing situations and cases. The IBA facilitates a proactive role for bar associations and lawyers in the implementation of the Rome Statute in key countries.
The IBA has recently launched a dedicated section on its website which contains full information on the ICC Monitoring and Outreach Programme, including programme descriptions, agendas and reports. Further information can be found at:
www.ibanet.org/humanrights/ICC_Monitoring_and_Outreach_Project.cfm
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* Convention 'lawyers of the World'/ Avocats du monde
Mr. President and dear Colleague,
On December 6, 2008, lawyers of the world meeting in Paris on the occasion of the Opening of the Paris Bar and of the commemoration of the Universal Declaration will have the opportunity to sign a Convention which reiterates and supplements the International Convention for the Protection of the Right to Due Process signed in Paris on June 26, 1987.
This Convention takes into account our changing societies and the effects of globalization, as well as the commitment made by many multinational corporations to ensure respect for the rights of humankind, which is the source and objective of the law.
The purpose of the present convention is to restate the will of lawyers of the world to cooperate with each other in their role as guardians of human liberties in order to strengthen the rule of law.
You will find hereinafter ( in English, French and Spanish) the last version of the
Convention.
Could you please inform me if your Bar Association will sign the Convention?
I would like to precise that if you cannot be present for the Conference of December 6, you can express by email your agreement (before December 4, 2008). Mr. Christian Charrire Bournazel, President of the Paris Bar, will mention the name of all signatories during the closing ceremony of the conference.
Do dot hesitate to contact me if you need more information,
Sincerely Yours,
Anne Soulliac
Lawyer
Head of the European and International Department
Paris Bar
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Monsieur le Btonnier,
Cher Confrre,
Le 6 dcembre 2008, des avocats du monde entier runis Paris loccasion de la rentre du Barreau de Paris et de la Commmoration de la Dclaration universelle des droits de lHomme auront lopportunit de signer une Convention qui rappelle et complte la Convention internationale de sauvegarde des droits de la Dfense qui a t signe Paris le 26 juin 1987.
Cette convention tient compte des volutions de nos socits et de la mondialisation, ainsi que de lengagement de nombre dentreprises multinationales en faveur du respect des droits de tout humain, source et finalit du droit.
Lobjet de ce nouveau texte est de raffirmer la volont des avocats du monde de cooprer ensemble la consolidation de ltat de droit dans leur rle de sentinelles des liberts.
Vous trouverez ci-joint (en anglais, franais et espagnol) la dernire version de la Convention et nous esprons que sa rdaction emportera votre adhsion,
Je vous remercie de me prciser si votre Barreau ou votre organisation envisage de signer cette Convention.
Je prcise pour ceux qui ne pourront pas tre prsents la Confrence quil est possible de donner votre accord par courriel (avant le 4 dcembre 2008). Lors de la crmonie de clture, Monsieur Christian Charrire Bournazel, Btonnier de lOrdre des avocats de Paris mentionnera le nom de tous les barreaux et organisations signataires.
Bien entendu, je reste votre disposition pour vous apporter toute information complmentaire que vous pourriez souhaiter,
Je vous prie de croire, Monsieur le Btonnier, Cher Confrre, lassurance de mes sentiments confraternellement dvous.
Anne Soulliac
Avocat
Directrice du service des relations europennes et internationales
Ordre des avocats de Paris
**********************************************
CONVENTION
DES AVOCATS DU MONDE
(CONVENTION BETWEEN LAWYERS OF THE WORLD)
This Convention supplements and expands the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Paris on the 26th of June 1987
Sixty years after the General Assembly of the United Nations adopted the Declaration of Human Rights, a founding text which introduced a new world order, lawyers from around the world met in Paris as part of the Rentre de la Confrence, and decided to expand the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms, which they had signed in 1987. The expanded terms were intended to take into account the changes undergone by society and the effects of globalisation, as well as the pledge made by a number of multinational corporations to respect and fully recognise human rights for allthat being the source and end-purpose of the law.
Having regard to the adoption of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and Basic Principles on the Role of Lawyers, as well as the Rome Statute of the International Criminal Court, this document is intended to reconfirm the willingness of the lawyers from around the world to work in concert to uphold the Rule of Law while assuming their role as sentinels of freedom.
The parties to this convention agree to unite their efforts to advocate the Rule of Law throughout the world, to build stronger links between all lawyers worldwide, and to promote the supremacy of law over arbitrary power and brute force.
ARTICLE 1: The lawyer
A lawyer is guided by five fundamental principles:
- independence and freedom in defending and advising his client;
- a duty to respect attorney-client privilege and confidentiality when handling a legal matter entrusted to him, precluding him from betraying secrets to public authorities or private individuals.
- a duty to avoid conflicts of interest, either between several clients or between the client and himself;
- self-regulation of the legal profession;
- a duty to exercise his profession while acting according to the dictates of his conscience, under his own responsibility, in accordance with the law, and while respecting his professional code of ethics and conduct.
ARTICLE 2: Bar associations and professional associations of lawyers
Lawyers may create or join independent professional associations whose object is to represent their interests, promote training and protect their reputation and good standing, and their professional autonomy.
The purpose of such associations is to ensure that lawyers can give aid and advice to their clients, in accordance with the law and recognized professional standards and ethics, without undue outside interference.
ARTICLE 3: Lawyers without borders
A lawyer is entitled to advise and give legal assistance, as well as present and defend his cases, beyond the borders of the country where he practices, provided that he complies with the general principles of the legal profession and the professional rules that apply in his country of practice and those governing the codes of ethics in the relevant foreign country.
ARTICLE 4: The lawyer and economic transactions and arrangements
When his legal practice entails dealing with clients, be they private individuals or legal entities, wishing to develop their business or activities in any country whatsoever, the lawyer must encourage them to comply with international human rights laws and, accordingly, must ensure that they do not become complicit in any violations.
ARTICLE 5: The lawyer and international criminal law
The lawyers associations having signed this convention pledge to work together toward promoting international criminal law by facilitating, by any necessary means, the right of counsel in such jurisdictions.
ARTICLE 6: Cooperative assistance among members of the legal profession
The legal organisations having signed this convention agree to actively contribute toward training young legal practitioners and experts around the world, notably through broader reliance on e-learning, internship exchange programmes, and by sending members of their bar associations to assist those who express interest.
Similarly, the signatory organisations will set up legal observatories, whose members are to be appointed by bar associations, which, by their very presence, will bring attention to issues regarding the observance of human rights and fundamental freedoms as enshrined in the Universal Declaration of Human Rights of 1948.
ARTICLE 7: Organisation of world bar associations
The signatory parties hereof agree to give an overview and update of their efforts, by any means they deem appropriate, to discuss any courses of action they wish to pursue, and to undertake new initiatives aimed at fostering the rule of law and respect for human rights.
Paris, 6 December 2008
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