U.

N High Level Meeting on Rule of Law

New York,
September 24, 2012

Inter American Bar Association

STATEMENT OF THE IABA AT THE UNITED NATIONS ORGANIZATION

HIGH LEVEL MEETING ON RULE OF LAW. SEPTEMBER 24TH, NEW YORK.
1. The Inter-American Bar Association (IABA), with over 70 years of existence and
an objective to promote the Rule of Law and the administration of justice, by
encouraging the establishment and maintenance of independent judicial systems
in all countries of the Americas, stresses the importance of judicial independence
as a sine qua non requisite of the rule of law.
2. In the Americas, the rule of law is constantly at stake. Weak institutions, unstable
political systems, rampant poverty and shocking inequality, along with changing
laws, corruption and undemanding civil society are all factors that diminish the
prevalence a system of order where the rule of law prevails; where the law is
superior to public officials; where the law applies to everyone without distinction
and where the citizens are endowed with institutions that guarantee justice,
equality and peace.
3. Of all the elements of rule of law none has more importance than judicial
independence.
4. Judges must be independent, impartial and not prone to any outside influence for
rule of law to reign. In an independent judiciary, judges are accountable for their
actions, but they should not be subject to political or economic factors on deciding
cases. Only the applicable law and the relevant facts should be the key factors to
be used by a judge to decide the merits of a case.
5. By judges being independent, the rule of law is promoted, i.e, the law is binding
to all without distinction. However, for judicial independence to exist, the law
should ensure that judges should be serious and respected professionals, to grant
stability and prohibit political interference in their decisions. Moreover, in
practice judges should be independent and should be widely perceived as such.
6. The IABA wants to emphasize that rights that only exist in theory or that are
difficult or impossible to enforce are rights that have been denied. The function of
the states is not only to recognize the essential rights of the human beings, but
also enable the mechanisms that can guarantee the effectiveness and enforcement
of those rights. That is precisely the role of the judiciary. Thus, a judiciary that
does not function due to inefficiency or lack of independence is tantamount to
rule of law in vacuum or the cancellation of the regime of rule of law.
7. In many Latin American countries there is a perception that the judiciaries lack
independence and are not reliable. As a consequence the majority of citizens
suffer political, social and economic consequences.

U.N High Level Meeting on Rule of Law

New York,
September 24, 2012

Inter American Bar Association

8. To foster the preeminence of the rule of law is of paramount importance in

todays world in general and specifically in the Americas. That task cannot be
completed without a radical transformation of most of the judicial systems.
However, although projects of judicial reform have been extensively promoted
and implemented in the developing countries of the Western Hemisphere, the fact
of the matter is that the citizens keep complaining about a system of dispute
resolution that is susceptible to outside influence.
9. The IABA strongly beliefs that reforms that strengthen the independence of
judges are needed. In that sense the judiciary as a dynamic body requires efficient
mechanisms useful to carry out massive interventions.
10. In that vein, the IABA encourages leaders to find ways to scrutinize and monitor
the independence of the judiciaries. Check and balance of the institutions is
essential in democracy. Transparency is also crucial in an open and free society.
For that reason, having the availability of a system of information that allows
citizens to evaluate the status of the institutions of a country is important. It will
not allow unbiased diagnosis of the government but would also recognize areas
where improvement is needed.

11. Although, currently the World Justice Project issues annually the rule of law
index, it does not expressly cover judicial independence and there are no
indicators specifically devoted to judicial independence. Thus, measuring the
independence of the judiciary of countries can be beneficial in many respects.
Firstly, as with the indicators measuring the investment climate and corruption,
measuring judicial independence can function as a reliable diagnosis of
discomforts of the judiciary and, eventually, be used as a tool to build a consensus
for reform. Identify defects in major institutions has worked well in other areas to
encourage reform programs. That in itself can bring tremendous benefits to the
rule of law and enhance the well-being of the citizens of a country by
guaranteeing not only respect to an essential human right, such as access to justice
but also efficient mechanisms to enforce those rights.

12. In addition, national judicial systems can be scrutinized internationally for

different reasons: in the context of human rights; or for denial of justice in the
context of State responsibility injury to foreigners. The latter can cause not only
an action of the foreign state against the alleged author state, but also may involve
an action by the foreign individual against the aggressor state, if the respective
treaties are in place.
13. Denial of justice and judicial corruption, are manifestations of the lack of
independence of judicial systems. In many cases, judgments contaminated by
elements of corruption are difficult to prove; but when the lawsuit is the result of

U.N High Level Meeting on Rule of Law

New York,
September 24, 2012

Inter American Bar Association

a judicial system widely regarded as non-independent, this could expose the

system to a necessary revision.
14. For example, when a foreign judgment is to be enforced in another country, the
laws of the country where the judgment could be enforced permit review of the
conditions of judicial independence abroad. In those cases a foreign court may
refuse to enforce the foreign judgment due to lack of judicial independence.
15. Some states may have reason to criticize some elements of system of international
law, by the suspicion or appearance of bias; or imbalance, as might be the case of
international protection of foreign investment. As a result, the review of their
judicial systems may not be acceptable to them. In many cases, the review may be
offensive and contrary to the sovereignty. In other cases, the review can not
reflect more than a consequence of the internationalization of law, where the
judicial system is not judged, but some of its products those which have an
impact abroad- are recognized or not, or are the source of some kind of
international action.
16. Be that as it may, the fact is that judicial independence of countries is reviewed
regularly in foreign fora. Therefore, since it is a fact that the system of
independent courts may be examined by foreign or international courts, indicators
can give stakeholders the objective tools to determine when a judicial system can
be considered independent or not.
17. In this context, the indicators of judicial independence come to serve two
purposes, at least:
a. As diagnostic of the state of the judiciaries of countries compared among
them, from which it creates the environment to advocate changes, viz:
reform processes for appointing judges;
b. To support arguments in litigation pertaining international recognition of
foreign judgments or denial of justice, viz: in exequatur proceedings the
execution of a judgment of a non-independent judiciary can be stopped.
Also in public international law one State may be accountable by denying
justice to individuals for lack of an independent judiciary, as in the field of
investment arbitration and human rights cases.
18. Therefore, several factors may be taken into account when measuring the judicial
independence of a country:
a. Appointment of judges: how are judges appointed? Are they appointed on
the basis of their professional credentials or based on political or economic
conditions?
b. The removal of judges: are there special circumstances for removing
them? Do judges have stability?

U.N High Level Meeting on Rule of Law

New York,
September 24, 2012

Inter American Bar Association

c. Discipline process: how are the judges misconduct sanctioned? Are they
responsible? Under what circumstances?
d. Professionalism: are judges qualified professionals to carry out their
work? Is there a continuous training?
e. Working conditions: are judges well paid? Do they work in comfortable
and efficient conditions?
f. Legal Framework: Is there a legal framework that promotes independent
court?
g. Decision making: how is the decision-making process? Is it transparent?
Can judges make decisions based on the facts and law?
h. Reputation: How are the judges and the judicial system perceived by
users? Is the judiciary trusted?

19. The IABA believes that indicators on judicial independence should have the
following characteristics:
a. Objective: They must be done with a methodology that does not leave
doubts. For this purpose, using as reference indicators measuring other
realities, such economic freedom or corruption, indicators on judicial
independence should have 2 components:
Quantitative: numeric references that qualify and rank the
i.
countries.
Qualitative: summary explanation of the reasons for the
ii.
respective score.
b. Frequent: indicators should be produced on regular timely basis to be
effective, so countries can see the developments that have been achieved
over time. Indicators made in areas such as competitiveness, business
climate, economic freedom, corruption, governance and freedom, etc, are
produced annually.
c. Universal: The indicators should cover as many countries possible.
Measuring a limited number of countries subtracts effectiveness.
20. In sum, lack of judicial independence poses an exceptional risk on the existence
of rule of law. Only by consolidating the judiciaries as dispute resolution bodies
immune to influence outside the facts and the law, can the rule of law really
triumph. The task is challenging and requires titanic efforts, one of which pertains
to objective review, analysis, diagnostics and comparisons of the relevant judicial
systems as a way to objectively asses the weaknesses of the court system to
promote debate and change.
IABA
Presented by Omar E. Garca-Bolvar.
New York, New York.
United Nations.
September 24th, 2012.