II. International Standards for LawyersThe independence of lawyers is a fundamental principle of international law. Lawyers play a key role in the administration of justice and protection of human rights. The importance that the international community places upon the independence of the judiciary and of lawyers is evidenced by their prominence in numerous international and regional treaties,10 United Nations (UN) resolutions,11 and international statements,12 to many of which China has agreed, such as the Beijing Basic Principles on the Independence of the Judiciary.13 China has also signed but not yet ratified the International Covenant on Civil and Political Rights (ICCPR). Many of its provisions are part of international customary law. Among other things, the ICCPR recognizes the right to counsel, the principle of equality before the courts, and the right to a fair and public hearing by an independent court established by law.14 The United Nations Human Rights Committee, which oversees implementation of the ICCPR, stated in its General Comment that “[l]awyers should be able to counsel and to represent their clients in accordance with their established professional standards and judgment without any restrictions, influences, pressures or undue interference from any quarter.”15 The most detailed exposition of the rights and responsibilities of lawyers is found in the United Nations Basic Principles on the Role of Lawyers.16 Among other things, the Basic Principles provide for:
In addition, “The accused or his lawyer must have the right to act diligently and fearlessly in pursuing all available defenses and the right to challenge the conduct of the case if they believe it to be unfair.”22 These principles are now commonly referred to in academic legal studies in China, although they have not been incorporated into domestic law.23 10 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. 11 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). 12 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). 13 The vice-president of the Supreme People’s Court was the signatory for China. 14 International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, art 14. 15 United Nations Human Rights Committee (Twenty-first session, 1984): “International Covenant on Civil and Political Rights General Comment No. 13: Equality before the courts and the right to a fair and public hearing by an independent court established by law (Art. 14),” April 13, 1984, paragraph 9. 16 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). The Basic Principles is not a legally binding instrument. However, they contain a series of principles and rights that are based on human rights standards enshrined in other international instruments, such as the ICCPR, which China has signed but not ratified. 17 Basic Principles on the Role of Lawyers, preamble. 18 Ibid., principle 24. 19 Ibid., principle 22. 20 Ibid., principle 16. 21 Ibid., principle 28. 22 United Nations Human Rights Committee (Twenty-first session, 1984): “International Covenant on Civil and Political Rights General Comment No. 13: Equality before the courts and the right to a fair and public hearing by an independent court established by law (Art. 14),” April 13, 1984, para. 9. 23 See, for example, Bian Jianlin, ed., The Quest for China's Criminal Justice Reform - Taking for Reference the Norms of the United Nation on Criminal Justice (Bejing: Chinese People's Public Security University Press, 2007) [卞建林（著编）中国刑事司法改革探索-以联合国刑事司法准则为参照, (北京: 中国人民公安大学出版社, 2007)]; Tian Wenchang, Chen Ruihua, eds., Draft Recommendations and Considerations by the Legal Profession on the Revisions to the Criminal Procedure Law of the PRC, (Beijing: Law Press China, 2007) [田文昌、陈瑞华(主编), 中华人民共和国刑事诉讼法在修改－律师建议稿于论证, (北京: 法律出版社, 2007)]; 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.] |