II. International Standards for Lawyers

The independence of lawyers is a fundamental principle of international human rights law. Lawyers play a major role in ensuring that victims or potential victims of human rights violations obtain effective remedies and protection, and that perpetrators of human rights violations are brought to justice. The importance that the international community places upon the independence of the judiciary and of lawyers is evidenced by the emphasis that it is given in numerous international and regional treaties,4 United Nations (UN) resolutions5 and international statements,6 to many of which China has agreed, such as the Beijing Basic Principles on the Independence of the Judiciary.7  

The most detailed exposition of the rights and responsibilities of lawyers is found in the United Nations Basic Principles on the Role of Lawyers.8 Among other things, the Basic Principles provide for:

  • The independence of lawyers: “Adequate protection of the human rights and fundamental freedoms to which all persons are entitled … requires that all persons have effective access to legal services provided by an independent legal profession.”9
  • Freedom of expression and association: “Lawyers shall be entitled to form and join self-governing professional associations… The executive body of the professional associations … shall exercise its functions without external interference.”10
  • Confidentiality of communications between lawyers and their clients: “Governments shall recognize and respect that all communications and consultations between lawyers and their clients within their professional relationship are confidential.”11
  • Protection from unlawful interference: “Governments shall ensure that lawyers (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; (b) are able to travel and to consult with their clients freely both within their own country and abroad; and (c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.”12
  • Right to due process for lawyers facing disciplinary sanctions: “Lawyers shall be brought before an impartial disciplinary committee established by the legal profession, before an independent statutory authority, or before a court, and shall be subject to an independent judicial review.”13

The UN Declaration on Human Rights Defenders recognizes that non-lawyers have “the right, individually and in association with others… to offer and provide professionally qualified legal assistance or other relevant advice and assistance in defending human rights and fundamental freedoms.”14 

The Basic Principles and the Declaration are not, in themselves, legally binding instruments. However, they contain a series of principles and rights that are based on human rights standards enshrined in other international instruments, such as the International Covenant on Civil and Political Rights.15 These principles are now commonly referred to in academic legal studies in China, although they have not been incorporated into domestic law.16

4 For example, judicial independence is guaranteed in the Universal Declaration of Human Rights, art. 10; International Covenant on Civil and Political Rights, art. 14.1; European Convention for the Protection of Human Rights and Fundamental Freedoms, art. 6; African Charter on Human and Peoples' Rights, art. 7; American Convention on Human Rights, art. 8; and Inter-American Democratic Charter, art. 3.

5 For example, UN General Assembly Resolutions 40/32 (29 November 1985) and 40/146 (13 December 1985); UN Commission on Human Rights Resolutions 2004/33 (19 April 2004), 2003/43 (23 April 2003), 2002/43 (23 April 2002), 2001/39 (23 April 2001), and 2000/42 (20 April 2000).

6 For example, the Suva Statement on the Principles of Judicial Independence and Access to Justice (2004); Cairo Declaration on Judicial Independence (2003); Bangalore Principles of Judicial Conduct (2002); UN Basic Principles on the Role of Lawyers (1990); Beijing Basic Principles on the Independence of the Judiciary (1985); International Bar Association's Minimum Standards of Judicial Independence (1982); and UN Draft Principles on the Independence of the Judiciary (1981).

7 The vice-president of the People’s Supreme Court was the signatory for China.

8 The Basic Principles on the Role of Lawyers, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990, “should be respected and taken into account by Governments within the framework of their national legislation and practice” (preamble).

9 Basic Principles on the Role of Lawyers, preamble.

10 Ibid., principle 24.

11 Ibid., principle 22.

12 Ibid., principle 16.

13 Ibid., principle 28.

14 Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, adopted by the UN General Assembly at the 85th plenary meeting, December 9, 1998.

15 While China has not ratified the Covenant, it is still “obliged to refrain from acts which would defeat the object and purpose of the treaty” because it has signed the ICCPR and has not expressed an official intention to not become a party to it. See Vienna Convention on the Law of Treaties, art. 18; Peter Malanczuk, ed., Akehurst’s Modern Introduction to International Law (London: Routledge, 7th edition, 1997), p. 135.

16 See, for example, Ye Qing and Gu Yuejin eds., Study of the Lawyers System in China (Shanghai: Shanghai Academy of Social Sciences Press, 2005), p. 55. [叶青,顾跃进(主编),中国律师制度研究,上海:上海社会科学出版社,2005, 第55页.]