July 01, 2016 Judicial Ethics

International Judicial Ethics

By Marla N. Greenstein

When reading the variety of approaches to international law in this issue, it is equally striking that while the role of the judge is universal, the ethical rules are not. While the Murnane article directly addresses the absence of enforceable ethical rules, it’s in the background in the other articles as well. An environment without enforceable ethical rules seems fundamentally at odds with the universal assumption that effective justice is intertwined with the need for an independent judiciary.

The American Bar Association has long been a leader in affecting professional ethics around the world. While the professional rules affecting lawyers differ as the legal systems do, judicial ethics are, by their nature, universal. Centered around the concepts of preserving independence and avoiding impropriety, judicial ethics codes differ only in their details and priorities. Several codes have been developed for international judges over the past two decades, all based substantially on the ABA Model Code of Judicial Conduct.

Most recently, the International Association of Judicial Independence and World Peace adopted the “Bologna and Milan Global Code of Judicial Ethics” at its June 2015 conference. With the stated purpose of clarifying standards for ethical conduct of judges, it also asserts that it affords the judiciary a framework for regulating judicial conduct. In its preamble, this most recent code acknowledges its origins in the many international codes that have preceded it: the New Delhi Code of Minimum Standards of Judicial Independence in 1982, the Montreal Universal Declaration of the Independence of Justice 1983, the well-known Bangalore Principles of Judicial Conduct from November 2002, and the Mt. Scopus International Standards of Judicial Independence 2008.

Unlike the earlier codes, the Bologna and Milan Global Code has separate code sections for “national judges” and “international judges.” While the standards are similar, by identifying the unique role of “international judges,” the Code also specifically addresses how the Code is to be enforced. Within the section devoted to international judges, a specific subsection addresses “misconduct.” Noting the inextricable link between judicial ethics and judicial independence, it requires courts to adopt procedures that would address “a specific complaint of misconduct or breach of duty” by a judge “that may affect independence or impartiality.” It also provides for confidential investigation of complaints that cannot be disposed of summarily and communication with the complainant of the result. The Code itself also requires “governing instruments” of international courts to provide appropriate disciplinary sanctions “including the removal from office of a judge.”

While judges in the United States are often caught up in the nuances of various sections of the Code of Judicial Conduct, it is humbling to view a powerful judiciary without any real check on fundamental ethics violations. Where a Code of Judicial Conduct relies on the good-faith compliance by judges alone, judicial independence itself may be at risk. As the opening words of the preamble to the ABA Model Code of Judicial Conduct (2007) notes: “An independent, fair and impartial judiciary is indispensable to our system of justice.” In fact, an independent, fair, and impartial judiciary is indispensable to any system of justice. And an enforceable code of ethics is its guarantee.

Marla N. Greenstein

Marla N. Greenstein is the executive director of the Alaska Commission on Judicial Conduct. She is also a former chair of the ABA Judicial Division’s Lawyers Conference. She can be reached at mgreenstein@acjc.state.ak.us.