Introduction to Law and Human Rights Lecture 1 PDF

Introduction to law and human rights Lecture 1 Dr. Mariam Waheed [email protected] Introduction to law  Lady Justice statue Lady Justice and the objects she carries are ancient symbols for fair and equal trea...

Introduction to law and human rights Lecture 1 Dr. Mariam Waheed [email protected] Introduction to law  Lady Justice statue Lady Justice and the objects she carries are ancient symbols for fair and equal treatment under law. Similar images date to ancient Mesopotamia, Egypt, Greece, and Rome. Today, many countries around the world recognize Lady Justice as a symbol for their courts. The balance (scales) represent weighing facts and evidence to decide a verdict. It also shows her duty to restore balance to society. Although many people think of Lady Justice as wearing a blindfold, she can also be shown without one. Both versions highlight her impartiality. As in the phrase “justice is blind,” the blindfold implies that she does not judge on appearance. In modern times, the blindfold represents the impartiality and objectivity of the law and that it doesn't let outside factors, such as politics, wealth intervene Source : Michigan Supreme Court Learning Center https://www.courts.michigan.gov/4af46e/siteassets/msc-learning-center/justitia_ladyjustice.pdf  The concept of Lady Justice is very old, dating back to ancient Greek and Egyptian times. The Egyptians had Ma’at, who stood for order and carried both a sword and the Feather of Truth. Themis, the Greek goddess, represented law, order, and justice. The most direct comparison, however, is with the Roman goddess of justice, Justitia. Maat in Ancient Egypt  Indispensability of law Step on a bus. The law is there. You have almost certainly entered into a contract to pay the fare to your destination. Alight before you have paid and the long arm of the criminal law may be expected to pursue you. The bus is involved in an accident. The law is ready to determine who is responsible for the injury you sustained. Source : Reading: Raymond Wacks (2008), Law: A Very Short Introduction, (Oxford: Oxford University Press). Your job, your home, your relationships, and more – are managed, controlled, and directed by the law. The legal system lies at the heart of any society, protecting rights, imposing duties, and establishing a framework for the conduct of almost every social, political, and economic activity. Punishing offenders, compensating the injured, and enforcing agreements are merely some of the tasks of a modern legal system. It endeavours to achieve justice, promote freedom, uphold the rule of law, and protect security.  What is law ? Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior. Law is a fundamental vehicle to the protection of individual’s rights and the attainment of justice. law cannot properly be understood without an awareness of its social, political, moral, and economic dimensions. Law seeks to protect the general well-being of the community.  What is law ? law is a word that means different things at different times. law is “a body of rules of action or conduct prescribed by controlling authority, and having binding legal force. That which must be obeyed and followed by citizens subject to sanctions or legal consequence is a law.  Functions of the Law At the macro level, the law can serve to (1) keep the peace. (2) maintain the status quo. (3) preserve individual rights. (4) protect minorities against majorities. (5) promote social justice. (6) provide for orderly social change.  Code of Hammurabi Despite the importance of law in society, its manifestation in the form of general codes first appears only around 300 B.C. Prior to the advent of writing , laws exist only in the form of custom. Among the first written codes is that of Hammurabi, king of Babylonian empire. It appeared in about 1760 BC. It is one of the earliest instances of a ruler proclaiming a systematic corpuses of law to his people so that they are able to know their rights and duties. For example it includes the punishment to be inflicted on a false witness which is death. Code of Hammurabi Difference between civil law and common law Civil law : applied in most of Europe ( For example : France ), south America. ( relies heavily on codification ) Common law : applied in England, United States of America, former British colonies, most of Canada. ( Depends on the oral tradition )  Customary law Practices that become a habit or tradition. It has a degree of legality in some countries as some African countries.  What is the name used for a person who commences a civil action ‫?دعوى مدنية‬ In a civil case a claimant sues a defendant/respondent. ‫المدعي‬ ‫المدعي عليه‬  Functions of law Order Justice  Functions of law The law lays down certain ground rules. Murder is wrong. So is theft. Modern governments seek to persuade us to behave well by means other than compulsion. Often the carrots replace the sticks. Trying to convince people to take appropriate action can work. But by setting standards of conduct , the law remains the most powerful tool in the hands of the state. The law establishes a framework within which unavoidable disputes may be resolved. Courts are the principal forum for the resolution of conflict.  Every legal system includes courts or court-like bodies with the power to adjudicate impartially upon a dispute, and following a recognized procedure, to issue an authoritative judgement based on the law. Another major function of law is the protection of property. Laws provide the rules to enable parties to enter into the contract of marriage or employment or purchase or sale.  Sources of law Legislation ‫التشريع‬: Legislation refers to the rules or laws enacted by the legislative organ of the government. It is one of the most important sources of law in jurisprudence. The word legislation is derived from the words legis and latum, where legis means law and latum means making. Custom ‫العرف‬: A custom, to be valid, must be observed continuously for a very long time without any interruption. Further, a practice must be supported not only for a very long time, but it must also be supported by the opinion of the general public and morality. Religion ‫ الدين‬: Religion has played a significant role in shaping legal systems throughout history. Precedent ‫السوابق القضائية‬: Actions of the courts. Doctrine of the precedent means judges must apply the law set out in relevant decision of previous superior courts and sometimes courts of the same standing. Difference between International law and domestic (national )law International law includes laws that govern independent nations in their relationships with one another. The state has to approve and ratify the international treaty to be legally binding on it. Domestic law is the law that governs activity within the nation’s borders. Nation’s lawmaking authority comes from the power to govern.  Law’s branches Public law Private law Public law It governs the relationship between the citizen and the state. Private law It governs the relationship between individuals or groups in society.  Examples of Public law Constitutional law ( Droit Constituonnel) : The body of law that evolves from the constitution, setting out the fundamental principles according to which a state is governed and defining the relationship between the various branches of government within the state. In addition that it sets out the rights and liberties of individuals inside the state. Administrative law (Droit Administratif ): Rules and regulations of government agencies.It governs the exercise of the powers and duties by public offi cials. Criminal law (Droit Criminel ): is a system of laws concerned with crimes and the punishment of individuals who commit crimes. Public International law ( Droit international public ) : Rules and regulations that guide relations between countries.  Types of Private law Civil law ( Droit Civil ): It relates to personal matters such as marriage and property and business agreements rather than crime. Example : Family law ( Droit de la famille) relates to marriage (and its contemporary equivalents), divorce, children, child support, adoption, custody, guardianship, surrogacy, and domestic violence. Employment law (Droit du travail ):a set of laws that deal with the relationship between employers and employees including their right and duties. Private international law (Droit international privé ) :It describes the body of law surrounding which law governs when there is a conflict between citizens of different countries. In common law jurisdictions, it is sometimes known as "conflict of laws.“ Commercial law ( Droit Commercial ) :Commercial law is an area of law that regulates the conduct of individuals, merchants, and businesses that engage in trade, sales, and commerce. Public International Law Disputes in international (public) law are often solved via international diplomacy and/or litigation in an international tribunal. Case study : ( International Arbitration ) International Court of Justice ruled that Taba belongs to Egyptian territories The return of Taba in March 1989.  Public international law Public international law seeks to regulate the relations between sovereign states. These norms are generated by treaties and international agreements (such as the Geneva Conventions), the United Nations, and other international organizations, including the International Labour Organization, UNESCO, the World Trade Organization, and the International Monetary Fund. The International Court of Justice (sometimes called the World Court), based in The Hague, was established in 1945 under the UN Charter in order to settle legal disputes between states and to issue advisory opinions on legal matters. International Court of Justice  The International Criminal Court was established in 2002 and also sits at The Hague. It hears prosecutions of alleged perpetrators of genocide, crimes against humanity, war crimes, and the crime of aggression. More than 100 states are members of the court, but neither China nor the United States are among them. Private International law Example : International (Commercial) Arbitration is frequently used in commercial, interstate, and foreign investment disputes. Private international law Private international law consists of principles and rules for dealing with legal disputes that have a foreign element: for example, a cross- border divorce case, or transnational commercial dispute. Source : Institute of Advanced legal studies ,School of Advances study, University of London, https://libguides.ials.sas.ac.uk/privateinternationallaw  Public International law Public international law is the law that applies in the relationships between States and that governs certain aspects of the relations between States and non-State actors (including individuals and private corporations). ‫‪Suggested readings‬‬ ‫رجب كريم عبد الاله ‪ ،‬المدخل للعلوم القانونية ‪ :‬الجزء األول (نظرية القانون) ‪.‬‬  Lecture 2 Introduction to law and human rights Dr. Mariam Waheed [email protected] Public International Law  Nations or organized communities of men differ from the individual men of a state, in that they are self- governed, that no law is imposed on them by an external human power, but they retain the moral accountable nature, which lies at the foundation of a single society."  Source : Public International Law: A Beginner's Guide, https://guides.loc.gov/public-international-law Public International Law  Public international law is the body of law created through the interactions between nations. Public International Law  International law is the law of the international community of states. It deals with the conduct of nation- states and their relations with other states, and to some extent also with their relations with individuals, business organizations, and other legal entities. How do nations adhere to the concepts of international law ?  Nations adhere to the concepts of international law through treaties, custom, and international tribunals.  First : Treaties  Second : Custom  Third : International tribunals First : Treaties and International agreements  International agreements are formal understandings or commitments between two or more countries. An agreement between two countries is called “bilateral,” while an agreement between several countries is “multilateral.”  The countries bound by an international agreement are generally referred to as “States Parties.” Examples  Bilateral agreement : A bilateral trade agreement between Egypt and Jordan. A bilateral agreement between Finland and Sweden ( Bilateral defense agreement ) A bilateral agreement between UK and Australia ( Australia- UK free trade agreement )  Multilateral agreement : Geneva Conventions – Rome statute of the International Criminal Court - The United Nations Convention on the Law of the Sea Bilateral agreements Multilateral Agreements First : Treaties : A treaty is a legally binding agreement  Under international law, a treaty is any legally binding agreement between states (countries). A treaty can be called a Convention, a Protocol, a Pact, an Accord. International Conventions  International conventions are treaties signed between two or more nations that act as an international agreement. A treaty is a binding agreement between nation-states that forms the basis for international law. Example of a multilateral convention Second : Custom  Customary international law refers to international obligations arising from established international practices, as opposed to obligations arising from formal written conventions and treaties.  Customary international law is an aspect of international law involving the principle of custom. Third: International Tribunals International Arbitration  Arbitration is a process in which parties to a dispute agree to have a neutral person or panel reach a binding decision that settles their dispute based on previously agreed-upon norms and rules.  In international arbitration, a dispute is referred to an impartial tribunal or panel for a binding decision, often on the basis of international law Taba- International Arbitration  Taba  A disagreement arose between the Egyptian and Israeli surveyors as to the correct location of parts of the mandatory border.  Egypt claimed that Israel was refraining from complete withdrawal from Sinai, and therefore refused to normalize relations with Israel.  The issue also became one of internal Israel politics, with the right wing led by Yitzhak Shamir taking a hard line on the issue and the left-wing Labour Movement led by Shimon Peres being more willing to compromise. Taba  After several years of negotiations with U.S. mediation, Egypt and Israel agreed in September 1986 to submit the dispute to international arbitration and pledged to abide by the outcome.  The panel ruled in favor of Egypt and Israel was forced to evacuate Taba on March 19, 1989, ending nearly 15 years of Israeli control over Taba, Sinai Peninsula in 1967.  Judgement of the tribunal  The majority award of the Tribunal held that it would decide the location of the pillars “as it was demarcated, consolidated, and commonly understood during the period of the Mandate,” which was “the critical period.” Taba  With a lone dissent from its Israeli member, an international arbitration panel awarded Egypt sovereignty over Taba, the disputed Red Sea resort area occupied by Israel since the 1967 war. Difference between International Humanitarian Law and International Human Rights Law  They are traditionally two distinct branches of international law.  International law International International Humanitarian Law Human Rights Law International Humanitarian Law  International humanitarian law is the law that governs the conduct of participants during armed conflict.  This branch of law aims to regulate the means and methods of warfare as well as to provide protections to those who do not, or who no longer, take part in the hostilities.  It is one of the oldest branches of international law.  Source : Ben Saul and Dapo Akande (ed.s) (2020), The Oxford Guide for International Humanitarian Law, ( Oxford : Oxford University Press ).  International Humanitarian Law(IHL)  Is a set of rules that seek to limit the effects of armed conflict. It lays out the responsibilities of states and non-state armed groups during an armed conflict.  It requires, among other things:  the rapid and unimpeded passage for humanitarian aid during armed conflicts  the freedom of movement for humanitarian workers in conflict areas  the protection of civilians (including medical and humanitarian workers)  the protection of refugees, prisoners, and the wounded and sick. IHL is based on the 1949 Fourth Geneva Convention on protecting civilians in conflict and the 1977 and 2005 Additional Protocols. Geneva Conventions  The Geneva Conventions are a series of international treaties concluded in Geneva between 1864 and 1949. The four Geneva Conventions  The four Geneva Conventions of 12 August 1949 are at the centre of international humanitarian law (Humanitarian Law, International). This is the branch of international law that, for humanitarian reasons, sets limits to resort to force in armed conflicts between States or within a State, between government forces and armed groups, or among armed groups. In particular, international humanitarian law limits the right of parties to an armed conflict in their choice of methods and means of warfare (Warfare, Methods and Means). Geneva Conventions  The Geneva Conventions and their Additional Protocols are international treaties that protect people who do not take part in the fighting ( civilians, medics, aid workers) and those who can no longer fight (wounded, sick and shipwrecked troops, prisoners of war).  Four Geneva Conventions  The First Geneva Convention protects wounded and sick soldiers on land during war.  The Second Geneva Convention protects wounded, sick and shipwrecked military personnel at sea during war.  The Third Geneva Convention applies to prisoners of war.  The Fourth Geneva Convention protects civilians, including those in occupied territory. International Human Rights Law International Human Rights Law  International human rights law lays down the obligations of Governments to act in certain ways or to refrain from certain acts, in order to promote and protect human rights and fundamental freedoms of individuals or groups. International Human Rights Law  The foundations of this body of law are the Charter of the United Nations and the Universal Declaration of Human Rights , adopted by the General Assembly in 1945 and 1948, respectively. International Human Rights Law  The international human rights movement was strengthened when the United Nations General Assembly adopted of the Universal Declaration of Human Rights (UDHR) on 10 December 1948. Universal Declaration for Human Rights  The Universal Declaration of Human Rights (UDHR) is a milestone document in the history of human rights. It set out, for the first time, fundamental human rights to be universally protected. It was issued after the Second World War. Difference between International Humanitarian Law and International Human Rights Law  International Humanitarian Law applies in armed conflict while International Human rights law applies at all times, in peace and in war.