PART I.

APPROACHING TO
LAW

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SOURCE OF LAW AND DEMOCRACY
Democracy is a form of government in which all eligible citizens are meant to participate equally
(either directly or through elected representatives) in the proposal, development and establishment
of the laws by which their society is run.

• Direct democracy: political system where the citizens participate in the decision-making
personally and put forth their initiatives through referendums and suggestions for law. Direct
democracy is most clearly practicable with relatively small number of people.
• Representative democracy: (limited and indirect) it involves the election of government
officials by the people being represented. Popular participation in government is infrequent
and brief, being restricted to the act of voting every few years.
o Parliamentary democracy
o Presidential democracy
• Hybrid: For example, in the US no mechanisms of direct democracy exist at the federal level,
but over half of the states and many localities provide for citizen sponsored ballot initiatives,
and they also allow for referendums.

DEMOCRATIC INSTITUTIONS

Legislative branch: As representatives of the people, the legislators are vested with the power to
make laws on behalf of the citizens, making them binding for the population. It is in the parliament
that discussion and debate proposed laws take place.

Executive branch: The executive branch is responsible for the implementation of laws and
policies made by the legislature. It extends from the head of the government to members of the
enforcement agencies such as the police and the military and includes both ministers and civil
servants.

Judicial branch: The central function of judges is to adjudicate on the meaning of law, in the
sense that they interpret or construct law. They also interpretate the constitution itself and arbitrate
in disputes between institutions of government or between the state and the individual. Strictly
independent and non-political actors.

Other democratic institutions: Media, Civil Society, Political parties, opposition in parliament.

DEMOCRACY INGREDIENTS

1. A political system for choosing and replacing the government trough free, regular and fair
elections
a. People choose their representatives and hold them accountable for their policies and
their conduct in office
b. Government is based on the consent of the governed
c. The leaders hold power temporarily
d. Laws and policies require majority support, but the rights of minorities are protected
in various ways
e. Voters must be able to vote in secret
2. The active participation of the people, as citizens, in politics and civic life
a. Voting in elections is an important duty of all citizens
b. Political parties are vital organizations in a democracy, and it becomes stronger when
citizens become active members of parties
c. Political pluralism
3. Protection of human rights for all citizens

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 a. In a democracy, every citizen has certain basic rights that the state cannot take away
from them
b. These rights are guaranteed under the law
4. The rule of law
a. Democracy is a system of rule by law, not by individuals
b. In a democracy, the rule of law protects the rights of citizens, maintains order, and
limits the power of government.
c. All citizens are equal under the law. No one may be discriminated against on the basis
of their race, religion, ethnic group, or gender.
d. No one may be arrested, imprisoned, or exiled arbitrarily.
e. Anyone charged with a crime has the right to a fair, speedy, and public trial by an
impartial court.
f. The separation of powers between the legislature, the executive and the judiciary. -
The law is made by representatives of the people in an open and transparent way.
g. The law and its administration is subject to open and free criticism by the people,
who may assemble without fear.
h. The law is applied equally and fairly, so that no one is above the law.
i. The law is capable of being known to everyone, so that everyone can comply.
j. No one is subject to any action by any government agency other than in accordance
with the law and the model litigant rules, no one is subject to any torture.
k. The judicial system is independent, impartial, open and transparent and provides a
fair and prompt trial.
l. All people are presumed to be innocent until proven otherwise and are entitled to
remain silent and are not required to incriminate themselves.
m. No one can be prosecuted, civilly or criminally, for any offence not known to the law
when committed.
n. No one is subject adversely to a retrospective change of the law.

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POPULAR SOVEREIGNTY
Popular sovereignty means that the People are the ultimate source of the authority of their
government.

Popular sovereignty includes the idea that democratic government is by the People and for the
People (for the benefit of the People)

Government in a democracy is the servant of the People; those who govern are public servants

The People are the highest political authority in a democracy:

• Political authority flows from the People to the state. Thus, all citizens ought to obey laws
made by a legislature because the People themselves have authorized the legislature to do so
• Popular sovereignty limits the power of government

People delegate their authority to the government only for the purposes set in the constitution and
only as much authority as is necessary to fulfil the purposes for which states are established

Problems regarding the ``consent of the governed´´:

• Many citizens fail to vote or participate in other ways that expresses their consent
• Modern societies lack the cohesion of traditional societies. Therefore, a significant
number of citizens, who can hardly say they consent to the political system, may be an
easy prey for various extremists
• How to deal with those who do not consent to the democratic political order

It is an abuse of power for a democratic government to claim more powers than the People have
delegated to it.

The People own the government and have the right to change it by lawful, constitutional methods

However, popular sovereignty is not absolute:

• Democracy conceives certain fundamental rights of individuals to lie beyond the power
even of the sovereign People to violate

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INTERNATIONAL CONSENSUS: ESSENTIAL
ELEMENTS OF DEMOCRACY
In 2004, the UN General Assembly adopted a resolution that lays out seven ‘essential elements’
of democracy, including:

• Separation and balance of power

• Independence of the judiciary
• A pluralistic system of political parties
• Respect for the rule of law
• Accountability and transparency
• Free, independent and pluralistic media
• Respect for human and political rights

It is worth noting that the UN resolution addresses two distinct aspects of democracy. The first is
sometimes referred to as ‘vertical accountability’ and relates to how a state interacts with its
people. The promotion and protection of all human rights is a prerequisite for a democratic
society. The second aspect of democracy identified in the 2004 UN resolution is sometimes called
‘horizontal accountability’. It relates to how state institutions interact and, ultimately, how they
are constructed and organised.

01.THE SEPARATION AND BALANCE OF POWER

The terms ‘separation of power’ and ‘balance of power’ mean that the power of the three branches
of democratic government – the legislative, executive and judiciary – should be distributed such
that each branch can independently carry out its own respective functions. The separation of
power is most clearly defined with respect to the judiciary than in terms of the distinction between
the executive and legislative branches of power.
Executive-legislative relations

The separation or balance of power between these two branches of government depends on the
given political system that is in place.

• Presidential systems, like the United States, have a clearer separation of legislative-
executive powers: directly elected presidents do not depend on the confidence of the
legislature and they can appoint and instruct their cabinet. In semi-presidential systems,
like France and Portugal, the government is answerable both to a directly elected
president and to the legislature.
• In parliamentary systems, the separation of power is less marked because the government,
including the executive, is appointed from a parliamentary majority. Consequently, the
executive depends on parliamentary approval. Without this, can be dismissed by a vote
of no confidence.

The UN Human Committee emphasises that parliaments with little de jure or de facto power do
not satisfy the requirements for a real democracy, and it has clarified in various concluding
observations on states’ reports this aspect in three concrete ways.

• No over-concentration of power in the executive branch of government

• The right of heads of state to refer bills back to the legislature
• Civilian control of the security sector

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The role of the legislature

The three main functions of the legislative branch – passing laws, maintaining oversight of the
executive and serving as a forum for public debate and deliberation of citizens’ interests – have
been acknowledged in a number of international documents.
The set up and rules of the legislature

Legislatures have either one chamber or house (unicameral) or two (bi-cameral). There are two
important principles for bi-cameral legislatures:

• All seats in at least one legislative chamber or house should be freely contested
• A second legislative chamber or house should either be accountable through elections, or
not be able to impact significantly on the powers of the directly elected chamber or house
Legislative autonomy

First, the legislature should be free to adopt and amend its own rules of procedure on an
independent basis. Second, the legislature should be free to schedule its sessions, set the pace for
organising its own activities and have the right to determine how much time is required to draft,
review or amend proposed legislation.
Legislative power

The power of legislation is the most essential of a legislature’s prerogatives and it should have
the competence and authority to undertake this role. Transfer of legislative power to the executive
may be permissible for brief periods.

02.INDEPENDENCE OF THE JUDICIARY

There is a ‘hard’ international obligation to establish an independent judiciary beyond the realm
of criminal law such that it also comes to bear on administrative law and the organization of the
state. That is, the courts can play a vital role in ensuring government accountability.

03. PLURALIST SYSTEM OF POLITICAL PARTIES AND ORGANISATIONS

Arguably, the need for a pluralistic system of political parties follows logically from the protection
of freedom of association, including participation in political parties . Pluralism indicates that a
party system should not only consist of a multitude of parties, but it should also include parties
that represent genuinely alternative policy choices. Effective opposition both inside and outside
parliament is a key condition of a functioning democracy. The rights of opposition or ‘electoral
minorities’ in parliament should be codified in parliamentary rules of procedures and, partly, in
constitutions.

In terms of fostering a system defined by political pluralism, states are bound by a number of
concrete obligations, including:

• A legal framework for the operation of political parties should be in place

• Restrictions to the right to register a political party should be narrowly constructed
• Political party membership should not be mandatory
Civil society organizations

Civil society organizations (CSOs) serve to organize and mediate political, economic, social and
other interests vis-à-vis the state and government.

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04.THE RULE OF LAW

The rule of law commits all public authorities to comply with independently and impartially
administered legal and justice systems, such that states make continuous efforts ‘guaranteeing
that no individual or public or private institution is above the law’. The rule of law therefore
indicates that the will of the majority has clear and certain limits, not only in the form of universal
human rights, but also in relation to the constitutional framework of a state.

During a state of emergency, the executive branch of government is temporarily empowered at

the expense of the legislative branch, and possibly the judiciary.

Human rights, including political rights, may also be suspended or severely restricted. As follows,
a state of emergency:

• Must be declared by a constitutionally lawful body, usually the head of state

• Should be declared officially, publicly and within the law
• Should be approved by the legislature, which should continue to function
• Should be temporally and geographically limited
• Should be managed transparently
• Should require that legal guarantees remain in place and derogations from fundamental
rights should be as limited as possible

05.ACCOUNTABILITY AND TRANSPARENCY

Accountability

Accountability thus implies both answerability (the obligation to provide information and
explanation; the right to ask questions and expect reasonable answers) and enforcement (a
capacity to hold those who are responsible to account for their actions, including punishment).
The question is, then, who is accountable to whom? International consensus points to some
minimum requirements, both of which focus on the executive branch:

• The executive is accountable to the legislature (sanction, impeachment)

• The executive is accountable to the judiciary (supreme court)

Transparency

Everyone has the right to seek, receive and impart information and that this imposes a positive
obligation on States to ensure access to information, particularly with regard to information held
by Government in all types of storage and retrieval systems.

06.FREEDOM OF THE MEDIA

Media freedom is vitally important for democracy. It contributes to creating transparent systems
of government, as well as safeguards human rights and fundamental freedoms such as freedom of
expression and freedom of information, both of which are necessary for facilitating the effective
participation of citizens in democratic processes. The State should not have monopoly control
over the media and should promote plurality of the media.

07.RESPECT FOR POLITICAL RIGHTS

Freedoms of assembly and expression

The freedom of political debate, along with freedom of association and assembly, are at the centre
of the concept of democracy.

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 • Freedom of expression has wide-ranging implications on the access of opposition parties
to state controlled media, for election campaign regulations, media legislation and
citizens’ rights to access to information.
• Freedom of assembly protects ‘intentional, temporary gatherings of several persons for a
specific purpose’ and has a ‘clear democratic function in the process of forming,
expressing and implementing political opinions’.
• Freedom of association is ‘indispensable for a democracy, because political interests can
be effectively championed only in community with others.
Participation in public affairs, the right to stand and vote in elections.

A core element of democracy is the right to participate in the conduct of public affairs, and to
stand for and vote in elections. Participation in public affairs can take place directly, for instance,
by referenda. It can be indirect, e.g., by voting for elected representatives

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THE PEOPLE IN A DEMOCRACY
Democracy means ruled by “the People”, but who are “the People”? This is an essential question:
until “the People” is defined, a legitimate democracy cannot be established. Key considerations
in determining who “the People” are include the following:

1. “The People” are the individuals and groups who agree to form themselves into a single whole.
They do so for the purpose of living together in a state established by a constitution that they have
created and hold in common.

• To form a “political People” individuals and groups must mutually consent on the basis
of equality to establish a single democratic state
• They must be held together by relationships of mutual toleration
• Individuals composing minorities must freely consent to join the majority to form a
common democratic state
• Only after individuals and groups agree to be part of a single state can they be legitimately
ruled, always retaining their individual rights

2. “The People” who agree together to form a democratic state may be, and often are, of varying
ethnic, religious, national and/or racial background.

• In that case, the peoples in question form themselves into a single “political People”
(common civic identity), but they may retain their identities as ethnic people

Modern societies, however, often suffer from social fragmentation in which ethnic and/or
religious groups do not accept their minority status in a polity, sometimes because majorities
oppress them or because they find little in common with the society around them.

• In such cases, the fragmentation of the “political People” is a substantial issue in which
minorities are distrusted.
• The result of these situations is frequently social problems, including political extremism,
the marginalization of unpopular groups, and minority impoverishment.

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THE OVERALL CONCEPT OF DEMOCRACY
The overall concept of modern democracy has three principal parts:

1. Democracy: Rule by the People through free and fair elections and other forms of participation.

• Popular sovereignty –the People are the source of the authority of government
• Political equality
• The power of the government is based upon the consent of the governed
• Elections are at the heart of the practical means for the People to assert their sovereignty
o “Free elections” means all adults citizens can vote and stand for office.
Candidates are not in any way blocked from the electorate
o “Fair elections” means that are honest. Voters must not be stopped from voting
and all votes must be accurately counted
o “Frequent elections” means that they must be held often enough to enable the
people to exercise control over the government
• The People must have alternative sources of information. Freedom of the press is
therefore as essential aspect of democracy

2. Constitutionalism: The use of constitutions to limit government by law.

• Constitutions limit government power to avoid oppression

• The government cannot make up rules to suit its convenience
• The judiciary has the power to “judicial review” in order to enforce constitutionalism.
Judicial power refers to the power of the courts to declare laws passed by legislatures to
be null and void if they contradict the nation’s constitution
• A “Bill of Rights” in constitutions ensures that the legislation, legal decisions and acts of
government officials do not violate basic rights

3. Liberalism: (freedom, equality and dignity of the individual) Liberal democracy recognizes
the moral primacy of the individual and that all persons have certain fundamental rights.
Examples: freedom of religion/conscience, political freedom, freedom of press, freedom of
speech, right to privacy and to a private sphere of life from government interference…

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CONCEPTS AND PRINCIPLES OF
DEMOCRATIC GOVERNANCE AND
ACCOUNTABILITY
ELEMENTS OF A DEMOCRATIC STATE AND SOCIETY

POLITICAL PLURALISM

Pluralism may be used to mean the existence of party competition, a multiplicity of ethical values
or a variety of cultural norms. This diversity assumes that the many organized groups in a
democratic society do not depend upon government for their existence, legitimacy or authority.
Many of these organizations serve as a mediating role between individuals and society’s complex
social and governmental institutions, offering individuals opportunities to become part of their
society without being in the government.

In local governments, political pluralism entails two basic aspects: first, political leaders may be
elected on a political party ticket or as independent candidates, in which case different political
parties can be represented in a local council. The second aspect is that the various stakeholders
are all involved in the decision-making process, considering the views and attending to the
interests of special groups such as women and children, youth, persons with disabilities, veterans,
and business associations, among others.

DEMOCRATIC PARTICIPATION

Participation refers to the process whereby people connect themselves to the government and thus
become self-governed. Democratic participation can occur in two ways: first, people can
participate through established structures of democracy; and second, they can participate through
civil associations.

It is important for people to constantly monitor the way their leaders manage their affairs. This is
possible through civil associations. Participation in such associations helps to protect group
interests and they raise awareness about specific issues. A lack of people’s participation bears the
risk that since it is difficult for individuals to press the government into meeting people’s needs,
the failure of individual efforts leads to individual despair and frustration, which may in turn lead
to withdrawal from the campaign.

Participation can occur in different forms and degrees, in all spheres of life and at all levels in the
political system.

• In the social sphere, people are participating in community matters and issues of daily
life, for example, through community projects, religious groups or sports clubs
• In the economic sphere, people engage through their jobs and income-generating
activities, for example, by offering and purchasing goods in the market
• In the political sphere, people in a democratic system participate through different
mechanisms, like voting in elections
• Other alternatives forms of proactive participation could be petitions, campaigns for
certain services and protest movements
• The media can also provide opportunities for participation by providing platforms for
publicly expressing opinions on political matters

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REPRESENTATION

Due to the main challenge presented by direct democracy, i.e. the difficulty of each one of us
representing ourselves at various forums, indirect or representative democracy was introduced. A
representative government is understood to stand for the “whole people”, or some numerous
portion of it. Five essentials principles of representation:

1. The ultimate power lies with the people (popular sovereignty)

2. The popular power is exercised by a selected few on behalf of the many
3. The deputies (or representatives) are mandated by the people through periodical elections
(popular consent)
4. Decisions made and actions carried out by the deputies have a binding effect on the
community
5. The people remain the final judge of performance of the government and their deputies
(accountability principle)

But how should a representative act so as to conform to all these principles? There are a number
of functions that a representative has which can be located on three levels:

• National level: include law-making; passing and amending the constitution; approving
taxes; making or shaping public policies; controlling government actions…
• Constituency level: include forming one’s constituents about government actions, plans
and policies; helping to settle conflicts; aggregating and articulating the interests of
constituents to relevant authorities…
• Personal level: include self-advertising, credit-claiming and position-taking.
o Self-advertising has been defined as “any effort to spread one’s name among
constituents to create a favourable image but in message having little or no issue
content”. Methods for self-advertising:
§ Frequent visits to the constituency
§ Speeches to home audiences
§ Writing newspapers columns
§ Participating in public debates
o Credit-claiming is defined as “acting so as to generate a belief in a relevant
political actor (the People) that one is personally responsible for causing the
government to do something that the actor considers desirable”.
o Position-taking is defined as “the public announcement of a judgmental statement
on anything likely to be interest to political actors”. The position may be
conservative or radical.

All of the above are important for the success of a representative because one cannot be known
unless one advertises oneself, one may not get credit unless one claims it, and one cannot
distinguish oneself unless one takes a position on issues which are considered important locally.

ELECTIONS

Since in a democracy the ideal is seeking the consent and mandate of the citizens for any leader
to be accepted as legitimate, citizen participation in the choice of their leaders is important. The
elements of democratic elections include:

• Elections must be competitive (multiple parties)

• Elections must be periodical
• Elections must be inclusive (most citizens must be allowed to vote)
• Elections must be definitive

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Democracies thrive on openness and accountability, with one very important exception: the act
of voting itself. To minimise the opportunity for intimidation, voters in a democracy must be
permitted to cast their ballots in secret. The citizens must also be confident that the results are
accurate, and that the government does, indeed, rest upon their consent. After the election, the
losers must accept the judgement of the voters and turn over power peacefully.

There are different forms of electoral systems: one might be when the legislators are chosen by
districts that each elect a single representative; this is also known as the “winner-takeall” system.
Another system might be a proportional representation, where each political party is represented
in the legislature according to its percentage of the total vote cast nationwide.

RULE OF LAW

The rule of law is the principle that the law should rule in the sense that it establishes a framework
to which all behaviour must conform, applying equally to all members of society. It means that
no individual, whether president or private citizen, stands above the law. The rule of law embodies
ideas like constitutionalism and limitation of the government. It protects fundamental political,
social and economic rights and defends the citizen from the state arbitrariness.

Due process protects the individual against arbitrary laws or unreasonable application of the law.
This principle guarantees fair legal proceedings, for example:

• No one’s home can be searched by the police without a court order

• No person shall be held under arrest without explicit, written charges. Moreover, under
the doctrine of habeas corpus, every person who is arrested has the right to be brought
before a court and must be released if a court finds that the arrest is invalid
• Persons charged with crimes are entitled to a speedy and public trial
• Persons cannot be compelled to be witnesses against themselves. This prohibition against
involuntary self-incrimination must be absolute
• Persons shall not be subject to double jeopardy, i.e. they cannot be charged with the same
crime twice
• Ex post facto laws are also prescribed. These are laws made after the fact so that someone
can be charged with a crime even though the act was not illegal at the time it occurred
• Cruel on unusual punishment are prohibited

HUMAN RIGHTS AND INDIVIDUAL FREEDOMS IN A DEMOCRACY

Human rights are universal legal guarantees that protect the fundamental freedoms and human
dignity of every individual. These rights affirm that every human being is entitled to equal
treatment and opportunities, regardless of gender, economic status, ethnicity, etc.

They are enumerated in the Universal Declaration of Human Rights. This instrument obliges the
government to protect the citizens from the violation of human rights and also limits the
government’s ability to interfere with them

• Equality and freedom from discrimination

• Protection of the right to life
• Protection of personal liberty
• Respect for human dignity and protection from inhuman treatment
• Protection from slavery, servitude and forced labour
• Protection from deprivation of poverty
• Right to privacy of a person and other property
• Protection of freedom of conscience, expression, movement, religion, assembly and
association

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 • Right to education
• Rights of women
• Rights of children
• Rights of persons with disabilities
• Protection of minorities
• Right to culture
• Civil rights and activities
• Right to a clean and healthy environment
• Right to access to information
• Right to just and fair treatment in administrative decisions

GOOD GOVERNANCE AND ACCOUNTABILITY

Governance is the process of decision-making and the process by which decisions are
implemented or not. Good governance must then adhere to the following characteristics:

a) It is participatory because it allows the masses to be part of the decision-making process

b) It is consensus-oriented as it seeks for broad consensus in society rather than permitting
minority views to override all other views
c) It is accountable since leadership will have to answer to the masses at some point
d) It is transparent in that decisions are taken and enforced in a manner that conforms to the
rules
e) It is effective and efficient as processes and institutions produce results that meet the
needs of society
f) It adheres to the rule of law for fairness and impartiality

Government accountability requires that public officials have an obligation to explain their
decisions and actions to the citizens. It can be achieved through:

• Free and fair elections. If voters are not satisfied with the performance of a political
leader, they may vote him/her out of office
• Political accountability is determined by whether the officials occupy an elected versus
appointed position, how often they are subjected to re-election and the number of terms
they can serve
• The legal accountability mechanisms include the instruments like the constitution, legal
acts, decrees, rules and regulations. Legal accountability mechanisms include:
o Ethics statutes and codes of conduct for public officials
o Financial disclosure laws, requiring public officials to divulge the source of their
income so that citizens may judge whether their actions are likely to be influenced
improperly by financial interests
o “Sunshine” laws, providing the press and the public with access to government
records and meetings
o Citizen participation requirements
o Judicial review
• Administrative accountability mechanisms include:
o An agency ombudsmen, responsible for hearing and addressing citizen
complaints
o Independent auditors who investigate the use of public funds
o Administrative courts that hear the citizen’s complaints
o Ethic rules protecting the so-called whistle-blowers – those within government
who speak out about corruption or abuse of official authority – from reprisals

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NATURE OF LAW
LAW FUNCTIONS

Law is the result of political action, and it can serve to:

• keep the peace

• maintain the status quo
• preserve individual rights
• protect minorities against majorities
• promote social justice
• provide for orderly social change

SCHOOLS OF LAW
1. Natural Law

Natural law is generally explained as the “law of nature, divine law, a law which is eternal and
universal”. It is considered natural in the sense that it is not created by man but is found through
nature, independently of human will. Natural law theory varies in its aims and content but there
is one central idea: there is a higher law based on morality against which the legal validity of
human law can be measured. It appears that the classical naturalists believed that legal norms
promulgated by human beings are valid only if they are consistent with morality. St. Tomas
Aquinas called law without moral content, as “perversion of law”. According to Fuller, human
activity is necessarily goal-orientated and people engage in various activities to realize some ends.
Consequently, in view of the fact that law-making is essentially a purposive activity, it can be
understood only in the light of its indispensable values and purposes.

The principles of natural law were rejected in the 19th century because of its vague and ambiguous
character. However, the change in socio-political conditions of the world shook the conscience of
the Western society. It compelled the 20th century legal thinkers to provide some alternatives
based on value-oriented ideology and to check moral degradation of the society. These factors led
to revival of natural law theory in its modified form, which is different from its traditional form.
Generally, the “rule of law” and the “due process of law” are considered as new incarnations of
natural justice in the 20th century.
2. Analytical School (legal positivism)

This school mainly aims to create a scientifically valid system of law, by analysing legal concepts
and ideas on the basis of empirical or scientific methods. It is also referred to as the positive or
imperative school of jurisprudence. It came as a reaction against the school of natural law. The
idea of positivism emphasizes the separation of law and morality. Law is man-made or enacted
by the legislature. Natural law thinkers proposed that if a law is not moral, no one is under any
duty to obey it, while positivists believe that a duly enacted law, until changed, remains law and
should be so obeyed.

The law is the command of the sovereign. Most of the times, that command is the expression of
desire by a political superior to a political inferior. This idea of command and punishment for
disobeying the command is the most prominent and distinctive character of “positive law”. It
differentiates positive law from “principles of morality” and “positive morality”, which do not
originate from a sovereign.

However, with the passage of time, the fatality of the analytical school of law was realized and it
was rejected because it gave too much emphasis to the “law as command” and rejected morality

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and custom as a source of law. A legal system is more than just rules; there are principles, policies
and binding legal standards which operate alongside rules.
3. Historical School

According to the followers of the historical school, laws are the creation of interactions between
the local situations and the conditions of the people. The historical school suggests that the law
should conform to the local needs and feelings of the society. It started as a reaction against natural
law and positivism to grow as a form of law that emphasized the irrational, racial and evolutionary
character of law.

Friedrich Carl von Savigny propounded that the nature of any particular system of law was a
reflection of the spirit of the people (“volksgeist”). The main features of Savigny’s historical
school are:

• Law should be a reflection of the common spirit of the people and their custom
• Law is not universal; it is particular to each society
• Law is not static; it has a relationship with the development of society
• Law is not given by a political superior, but is found or given by the people

Another author called Maine explained that the growth of law took place gradually in the
following sequence:

1. Divine law (Themis judgements)

2. Custom (clerical class as the only repository of customary law)
3. Era of codification
4. However, in a progressive society, law evolved through three stages, namely fiction,
equity and legislation.
4. Sociological School

The sociological school considers law as a tool for social change. It considers law as a tool for
enhancing social solidarity, i.e. interdependence of human beings on one another. The main
features of this school are:

• It highlights the purpose and function of law rather than its content
• Law is a social institution designed for social need
• Law is a tool to balance conflicting interests of society

The main criticisms are:

• The terms “social solidarity” and “social engineering” are vague

• Men and society cannot be compared with a machine
• The importance of the State is overlooked
5. Realists School

Realists consider laws made by judges as the real law. Realists place a great emphasis on the role
of judges in the implementation, interpretation and development of law. Realist school can be
divided into two parts: American realism and Scandinavian realism.

Main features of this school:

• Law is not static as it keeps on changing

• Law is a means to a social end
• Society changes faster than the law

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 • Law cannot be certain. Decisions of the courts depend on many factors like the
psychological, social and economic background of the judges
• Cases studies are important as court rooms are laboratories of the law

Major criticisms:

• It ignores the importance of legal rules and enactments

• It is incorrect to think that law evolves only through courts
• Unwarranted emphasis on the judge’s behaviour

CLASSIFICATION OF LAW
i. International Law

International law has been further classified as follows:

• Public international law: body of rules and regulations which governs the relationship
between nations. Countries mutually recognise these sets of rules which are binding on
them in their transactions on a reciprocal basis.
• Private international law: part of law of the State which deals with cases having a foreign
element. It relates to the right of private citizens of different countries, such as marriages
and adoptions.
ii. National law

It divides into two segments:

PUBLIC LAW

Public law regulates the relationship between the State and its subjects. It also provides the
structure and functioning of the organs of States. The three important branches of public law are
the following:

a) Constitutional Law: is considered to be the basic as well as the supreme law of the
country. The nature of any state is basically determined by its constitution. It also
provides the structure of the government since all the organs of the state derive their
powers from the constitution.
b) Administrative law: it mainly deals with the powers and functions of administrative
authorities. It also provides for legal remedies in case of any violation of the right of the
people.
c) Criminal law: It generally deals with acts which are prohibited by law. It also prescribes
punishments for criminal offences. Criminal law is very important for maintaining social
order and peace.

PRIVATE LAW

This branch of law deals with the definition, regulation and enforcement of mutual rights and
duties of individuals. The state intervenes through its judicial organs (e.g. courts) to settle the
dispute between the parties. This branch can be classified into the following:

a) Personal Law: it is related to marriage, divorce and inheritance. In such matters, people
are mostly governed by the personal laws laid down by their religions.
b) Property Law: it deals with the ownership of immovable and movable properties.
c) Law of Obligations: It pertains to an area where a person is required to do something
because of his promise, contract or law.

17
d) Law of Contracts: A contract is an agreement, which is enforceable by law, between two
parties with specific terms.
e) Law of Torts: it creates and provides remedies for civil wrongs that do not arise out of
contractual duties. Torts cover intentional acts and accidents.

18
THE COMMON LAW AND CIVIL LAW
TRADITIONS
Topics:

Systems of law vary around the world. Two very common legal systems are the civil law and the
common law. The use of one system over another has to do with the history of the country or
region in question.

CIVIL LAW

The term “civil law” can have two meanings. First, it can mean matters of private law, such as
personal injury, contract cases or other legal disputes between private individuals. This is distinct
from criminal law. Second, it can mean a legal system based on a civil code.

The civil law system is the oldest and most dominant legal system in the world and originates
from the ancient Roman system.

In a civil law system, governments create complete codes of law. These are continuously
updated to keep a recent account of matters that can and cannot come before courts.

Therefore, government legislation is the primary source of law in a civil law system

Civil law was also adopted in the nineteenth and twentieth centuries by countries formerly
possessing distinctive legal traditions, such as Russia and Japan, that sought to reform their legal
systems in order to gain economic and political power comparable to that of Western European
nation-states
Historical Development of Civil Law

The term civil law derives from the Latin ius civile, the law applicable to all Roman cives or
citizens.

Its origins and model are to be found in the monumental compilation of Roman law commissioned
by the Emperor Justinian in the sixth century.

While this compilation was lost to the West within decades of its creation, it was rediscovered
and made the basis for legal instruction in eleventh-century Italy and in the sixteenth century came
to be known as Corpus iuris civilis.

Succeeding generations of legal scholars throughout Europe adapted the principles of ancient
Roman law in the Corpus iuris civilis to contemporary needs.

Medieval scholars of Catholic church law, or canon law, were also influenced by Roman law
scholarship as they compiled existing religious legal sources into their own comprehensive
system of law and governance for the Church, an institution central to medieval culture, politics,
and higher learning.

By the late Middle Ages, these two laws, civil and canon, were taught at most universities and
formed the basis of a shared body of legal thought common to most of Europe.

The birth and evolution of the medieval civil law tradition based on Roman law was thus integral
to European legal development.

19
As civil law came into practice throughout Europe, the role of local custom as a source of law
became increasingly important—particularly as growing European states sought to unify and
organize their individual legal systems.

In the eighteenth century, the reforming aspirations of Enlightenment rulers aligned with jurists’
desire to rationalize the law to produce comprehensive, systematic legal codes including Austria’s
1786 Code of Joseph II and Complete Civil Code of 1811, Prussia’s Complete Territorial Code
of 1794, and France’s Civil Code (known as the Napoleonic Code) of 1804.

Such codes, shaped by the Roman law tradition, are the models of today’s civil law systems

The civil law tradition developed in continental Europe at the same time and was applied in the
colonies of European imperial powers such as Spain and Portugal.

For example, France uses civil law and England uses common law; as a result, Quebec uses civil
law because it was colonized by France, while the other Canadian provinces and territories use
common law because they were colonized by England.

The civil law system is the most common system in the world. Among others, it is the system
used in most of Europe, South America, Africa, and Russia and China.

The civil law tradition is developed through legislative statutes (legislative codes).
The role of judges and juries in civil law

In civil law jurisdictions, because of the focus on formal, written laws, judges decide cases
primarily based on the applicable code.

Juries are not generally involved. Judges may refer to prior court decisions, but they do so only
to achieve consistency, and not because of a legal requirement to follow other judicial decisions.

In place of juries, civil courts allow a very inquisitorial style by their judges. The judges
question witnesses and are much more involved in the development of the evidence
Civil law characteristics

1) Civil Law is codified. Countries with civil law systems have comprehensive, continuously
updated legal codes that specify all matters capable of being brought before a court, the
applicable procedure, and the appropriate punishment for each offense.

2) Such codes distinguish between different categories of law: substantive law establishes which
acts are subject to criminal or civil prosecution, procedural law establishes how to determine
whether a particular action constitutes a criminal act, and penal law establishes the appropriate
penalty.

3) The judge’s role is to establish the facts of the case and to apply the provisions of the
applicable code.

4) The judge’s decision is consequently less crucial in shaping civil law than the decisions of
legislators and legal scholars who draft and interpret the codes.

COMMON LAW

The development of common law has been described as a “historical accident” (Vivienne
O’Connor, Common Law and Civil Law Traditions. p. 11), arising from the conquest of England
by the Normans in 1066 A.D.

20
William the Conqueror, in an effort to establish a Norman legal order in a foreign country,
deputized a “corps of loyal adjudicators” (or judges) to resolve disputes at the local level and
essentially make law. In more serious cases, there was a referral system to the King for
adjudication. Juries were also introduced, which represented the local interests of the ordinary
person to decide the case. This strategy kept the populace happy and less likely to revolt against
the occupying power. Because the jury was comprised of mostly illiterate people, the proceedings
were oral, the implications of which can still be seen today in the modern common law system.

The focus in the common law was originally on resolving the disputes at hand rather than creating
legal principles that would be articulated in a generally applicable code. Common law developed
historically on a case by case basis from the bottom up (namely from judges), rather than the civil
law that has always been developed top down by the legislature.
Historical development of English Common Law

English common law emerged from the changing and centralizing powers of the king during the
Middle Ages.

After the Norman Conquest in 1066, medieval kings began to consolidate power and establish
new institutions of royal authority and justice.

New forms of legal action established by the crown functioned through a system of writs, or
royal orders, each of which provided a specific remedy for a specific wrong.

The system of writs became so highly formalized that the laws the courts could apply based on
this system often were too rigid to adequately achieve justice. In these cases, a further appeal
to justice would have to be made directly to the king. This difficulty gave birth to a new kind of
court, the court of equity, also known as the court of Chancery because it was the court of the
king’s chancellor.

Courts of equity were authorized to apply principles of equity based on many sources (such as
Roman law and natural law) rather than to apply only the common law, to achieve a just
outcome.

Courts of law and courts of equity thus functioned separately until the writs system was abolished
in the mid-nineteenth century.

The common law system is prevalent in England, as well as countries that are former colonies of
the British Empire. Examples of such countries include the United States, Australia, India, Hong
Kong, Pakistan, Ghana, South Africa, and Zimbabwe.

The law is developed through court decisions, rather than through legislative statutes alone.
While legislation exists, it is interpreted by courts.

Judges’ decisions as to the meaning and application of legislation then become the law. Therefore,
the common law is flexible for changing circumstances and cases.

The common law system is premised on a concept called stare decisis. The term originates from
the Latin phrase “Stare decisis et non quieta movere”, which translates as “to stand by decisions
and not disturb the undisturbed”.

Decisions in the common law are called ‘precedents’, and they guide judges in making future
decisions in similar cases.

21
Thus, courts are obliged to follow precedents and not disturb established law. If, however, a
later dispute is factually distinct from the previous case, judges can distinguish between the cases
and create a new precedent based on the new facts.

The concept of stare decisis is premised on the hierarchy of courts. The decisions of higher
courts are binding on all lower court judges.

For example, decisions by the Supreme Court are binding on all judges in all lower courts.

Judges are not bound by decisions of other judges of their own court.

When judges create new law by interpreting legislation, they can override the literal reading of
the legislation itself. Often, the legislature will respond to judicial decisions by amending or
enacting new law in accordance with the court decisions or in order to ‘fill gaps’ in judge-made
law.
The role of judges and juries in Common Law

The common law system may involve both judges and juries in trials.

When both judge and the jury are used, they have distinct roles in the common law trial. Judges
play the role of a legal advisor, instructing the jury as to relevant laws and ensuring that the trial
is run fairly. When the arguments have been completed, the judge advises the jury as to the laws
it must consider and how to treat the evidence it has heard.

The jury’s task is to assess the evidence and arguments and make decisions about the facts
of the case. The jury then makes the ultimate verdict as to guilty or not guilty, and liable or not
liable.
Common Law characteristics

1) Is generally uncodified. This means that there is no comprehensive compilation of legal rules
and statutes.

2) A “precedent” is “an adjudged case or decision of a court, considered as furnishing an example

or authority for an identical or similar case afterwards arising or a similar question of law”
th
(Black’s Law Dictionary, 6 Edition).

3) Stare Decisis is a principle that requires a judge to follow previously established precedents.
This applies to precedents established by higher courts. A higher court will not be bound to follow
the precedent of a lower court even where the facts are identical (although the higher court may
choose to).

4) Common Law is largely based on precedent, meaning the judicial decisions that have already
been made in similar cases. These precedents are maintained over time through the records of the
courts as well as historically documented in collections of case law known as year books and
reports.

5) The precedents to be applied in the decision of each new case are determined by the presiding
judge.

6) A jury of ordinary people without legal training decides on the facts of the case. The judge
then determines the appropriate sentence based on the jury’s verdict

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DEMOCRACY AND EQUALITY
The political, legal and moral equality of every citizen is a fundamental value of democracy.
These aspects of equality are summarized in the idea that there can be no second-class citizens in
a democracy.

Equality in a democracy may be said to have the following dimensions:

• Political equality means that each citizen is to be able to vote in elections and stand for
office
• Legal equality means that all persons (noncitizens as well as citizens) are to enjoy the
equal protection of laws
• Moral equality means that each citizen (in most circumstances noncitizens as well) is to
be given equal concern and respect in the eyes of the law and in the policies of
governments

Among the most important forms of democratic equality to be guaranteed by the equal protection
of laws is “equality of opportunities”. This means that the law must not unfairly disadvantage
anyone in their opportunity to seek a variety of social goods such as education, employment,
housing and political rights.

Beyond the formal equality of each citizen in a democracy, there can be said to be an informal
“spirit of equality”. These aspects of a mature democracy may take a considerable period to
develop. Examples:

• citizens treat each other with equal respect

• individual merit counts more than accidents of birth in society
• consciousness of social hierarchy and class resentment declines

A substantial middle class is among the most important characteristics of a stable democratic state

23
 PART II.
DOMESTIC LAW

24
WHAT IS A CONSTITUTION?
A constitution of a state is a set of rules defining the structure and working of the government of
a country. It defines the principal institutions (the executive, the legislative and the judiciary) and
the nature and scope of their powers. It also defines the rights and freedom of citizens, rights with
which the government cannot lawfully interfere.

Classification of constitutions:

1. Written or unwritten
2. Republican or monarchical
3. Flexible or rigid
4. Unitary or federal
5. Supreme or subordinate
6. Have clearly separated powers or fused powers
1. Written or unwritten

A written constitution is one contained within a single document or a series of documents defining
the basic rules of the state. The origins of written constitutions lie in the American War of
Independence and the French Revolution of 1789. The feature that is common to all countries
with a written constitution is that at some point in time there has been a clear break from former
constitutional arrangements, providing the opportunity for a fresh start.
2. Republican or monarchical

A republican state is one having as its figurehead a (usually) democratically elected president. By
contrast, a monarchical state is one having as its head of state a king or queen.
3. Flexible or rigid

A flexible constitution is one that may be amended with ease. A rigid constitution, by contrast, is
one where there are stringent procedures to be followed before reform can take place.
4. Unitary or federal

A unitary state is one with a highly centralized government, which enacts laws for the whole state.
A federal state is one where the power is divided between central and more localised governments.
5. Supreme or subordinate

A supreme constitution is one that is not controlled by any higher source of power. On the other
hand, a subordinate constitution is one that has (usually) been conferred by a higher power, with
that higher power being able to extend or restrict the degree of autonomy enjoyed by the
subordinate state. Subordinate constitutions are normally the product of colonialism.
6. Have clearly separated powers or fused powers

Separation of powers requires that the personnel, functions and powers of the principal institutions
of the state (the executive, legislature and judiciary) are separate. The purpose of this is to avoid
the concentration of power in one “pair of hands” which could lead to the abuse of power.

25
Constitution-as-form

Three conditions to assess a law’s status as a “Constitution”:

a) The document is identified explicitly as the Constitution, Fundamental Law or Basic Law
of the Country
b) The document contains explicit provisions that establish it as the highest law
c) The document defines the basic pattern of authority by establishing or suspending an
executive or legislative branch of government

Constitution-as-function

1. Limitation of government power

2. Symbol to define the nation and its goals
3. Definition of patterns of authority and setups of government institutions

26
WHAT IS A CONSTITUTION? PRINCIPLES AND
CONCEPTS
1. INTRODUCTION

The vast majority of contemporary countries describe the basic principles of the state, the
structures and processes of government and the fundamental rights of citizens in a higher law that
cannot be unilaterally changed by an ordinary legislative act. This higher law is usually referred
to as a constitution.

2. THE FUNDAMENTALS OF CONSTITUTION

2.1. The functions of a constitution

• Constitutions can declare and define the boundaries of the political community. These
boundaries can be territorial (the geographical borders of the state) and personal (the
definition of citizenship)
• Constitutions can declare and define the nature and authority of the political community.
They often declare the state’s fundamental principles and assumptions, as well as where
its sovereignty lies
• Constitutions can express the identity and values of a national community
• Constitutions can declare and define the rights and duties of citizens
• Constitutions can establish and regulate the political institutions of the community. They
define the various institutions of government; prescribe their composition, powers and
functions; and regulate relations between them
• Constitutions can divide or share power between different layers of government or sub-
state communities. Many constitutions establish federal, quasi-federal or decentralized
processes for the sharing of power between provinces, regions or other sub-state
communities
• Constitutions can declare the official religious identity of the state and demarcate
relationships between sacred and secular authorities
• Constitutions can commit states to particular social, economic or developmental goals
2.2. The constitution at the intersection of legal, social and political life

Constitutions as legal instruments

A constitution makes the operation of power procedurally predictable, upholds the rule of law,
and places limits on the arbitrariness of power.

27
Constitutions as social declarations
Constitutions often attempt, to varying degrees, to reflect and shape society -for example, by
expressing the common identity and aspirations of the people, or by proclaiming shared values
and ideals.

Constitutions as political instruments

The political provisions show how state institutions (parliament, executive, courts, etc) are
constituted, what powers they have and how they relate to each other.
2.3. Two constitutional archetypes

Procedural constitutions
A procedural constitution may be appropriate in cases where it is difficult to arrive at a common
agreement over issues of values or identity, but where it is possible to reach a more limited and
pragmatic consensus on using democratic procedures to resolve these differences. E.g. the
Canadian and the Dutch constitutions

Prescriptive constitutions
A prescriptive constitution assumes a broad consensus on common societal goals that public
authorities must strive to achieve. This type of constitutions may be appropriate in cases where a
society wishes to reestablish itself on a shared ethical basis that is both symbolically proclaimed
by, and practically embedded in, its supreme law. E.g. the South African and the Ecuador
constitutions.

It should be remembered that these archetypes are not firm categorizations. Most constitutions
contain, to varying degrees, both features.
2.4. What does a constitution typically contain?

Divisions
Most constitutions are divided and sub-divided into parts that may variously be known as titles,
chapters, articles, sections, paragraphs and clauses.

Arrangements
The layout of a typical constitution might resemble the following:

a) Preamble: a statement of the overachieving motives and goals of the constitution-making

exercise.
b) Preliminaries: a declaration of sovereignty or of basic principles of the government.
c) Fundamental rights: a list of rights, including their applicability, enforcement, limitations,
suspension or restriction during a state of emergency.
d) Social and economic rights or policy directives.
e) Parliament or legislature: its structure, composition terms of office, etc
f) Head of state: the method of selection, power, terms of office.
g) Government (in a parliamentary or semi-presidential system): government formation
rules, responsibility, powers.
h) Judiciary: Court system, judicial appointments, judicial independence, public
prosecutors.
i) Sub-national government: federal or devolved powers, local governments.
j) Provisions for referendums.
k) Institutions of the “fourth branch” or integrity branch: electoral commission, ombudsman,
auditors, etc.
l) Security sector: commander-in-chief, any restrictions on military power.
m) Other miscellaneous provisions: particular groups, language laws, or institutions.
n) Amendment procedures, implementation timetable and transitionary provisions.

28
Size and length
Constitutions vary in length from a few thousand words (Iceland) to more than 50,000 words
(India). Newer constitutions tend to be longer than older ones, and federal constitutions longer
than unitary ones.
2.5. The constitution and the constitutional order

A constitutional order represents a fundamental commitment to the norms and procedures of the
constitution, manifest in behaviour, practice and internalisation of norms. It is embodied,
ultimately, in the political culture and in the free and civic way of life of the people. It is important
to recognize that building a democratic constitutional is a long-term process. Drafting the
constitutional text is only a small part of the challenge; it is also necessary to establish institutions,
procedures and rules for constitution-making (preparatory stage); to give legal effect to the
constitution (ratification and adoption) and crucially, to ensure that the spirit and the letter of the
constitution are faithfully implemented.

3. CONSTITUTIONS AND DEMOCRACY

3.1. Why have a constitution?

Countries that have succeeded in establishing and maintaining constitutional government have
usually been at the forefront of scientific and technological progress, economic power, cultural
development and human well-being. This is because constitutionalism empowers legitimate
authorities to act for the public good in the management of common concerns while protecting
people against the arbitrary power of rulers whose powers would otherwise be used for their own.

In this sense, constitutionalism is the opposite of despotism. Despotic rulers can make laws, and
can determine right and wrong, through their own unilateral decisions, without requiring broader
consent or public approval, without being restrained by balancing institutions and without being
held to account by the people. In choosing to adopt constitutional government, people are
choosing to say no to despotism and to the precariousness of living under rulers who can act
arbitrarily.
3.2. Democratic constitutionalism as a global norm

Modern democratic constitutionalism is based on the two principles: a representative government

and the protection of rights. During the 19th and early 20th century, the right to participate in
public affairs was extended, usually after long and sometimes violent struggles, to all men and
finally to women as well. Similarly, during the 20th century, the rights provisions typically
became more expansive with economic, social, cultural, and environmental rights being
increasingly recognized in addition to the basic civil and legal rights; and more directly
enforceable, with an expanded role for independent judiciaries in upholding them.
3.3. Elite accommodation

In almost every human society a relatively small elite possesses both wealth and power in
abundance, while a much larger number of nonelite people do not. By establishing a democratic
constitutional order, a society is attempting to impose rules to rulers, and to allow non-elites to
institutionally constrain elites and hold them to account. In posing such a challenge to elite rule,
a democratic constitutional order can expect to encounter resistance from elites that are protective
of their privileges. If unchecked, the rich might become spoilers: they might support a return to a
non-democratic form of government or seek to corrupt and undermine the democratic
constitutional order to the extent that it becomes infective.

To avoid this, elites might have to have to be appeased in specific areas that concern their most
vital interests. Such compromises can vary from immunity from prosecution for past crimes to,
in some cases, a share of future policymaking. However, if these compromises are too generous

29
to vested interests, they can undermine the effectiveness and quality of the democratic
constitutional order; instead, an oligarchy system is produced.

In some cases, competing elites will tire of self-destructive conflict among themselves, and will
embrace democratic mechanisms as a way of moderating the conflict. In others, elites may be
fatally weakened by the transfer of land, wealth and organizational capacity to non-elites, and
may decide that sharing power with non-elites offers the best way of preserving their most
important interests. The constitution, in such cases, can be regarded both as an inter-elite bargain
and as a bargain between elites and non-elites.
3.4. Inclusive bargains and precommitments

In principle, constitutionalism, by making all citizens parties to a great bargain makes the state
into a public entity -a common possession of all the citizens. Many historical constitutions,
however, have failed to establish a democratic constitutional order because they did not truly
belong to the whole community. Instead, they represented an imposition of values by one side of
the community that wanted to dominate the state. As such, these partisan constitutions are often
perceived as illegitimate by opponents of the ruling party.

The problem with these constitutions is that it makes insufficient allowance for pluralism:
different people have different visions of a better society, and arguments arising from such
differences are often highly polarized and very difficult to resolve. This is not to say that a
constitution should avoid all discussion of values: both procedural and prescriptive approaches
have their place, and where a broad public consensus exists as the basis of the agreement, there
can be a case of inclusion of substantive and even transformational material.

Constitution building can be seen as a process that differs, in both purpose and nature, from
ordinary law-making. Constitution-building requires both a broader consensus and a greater
willingness to set aside immediate self-interests for the sake of enduring public values. This
sometimes takes place when a country achieves independence or after the collapse of a failed
undemocratic regime.

The precommitments of constitutionalism can be seen as a form of collective self-binding, by

which the participants in a political system bind themselves to fundamental rules so that
incumbent holders of government office cannot dominate or manipulate the state. Another
approach is to regard the constitutional documents as expressions of the sovereign constituent
power of the people.

The people are bound by founding decisions, but these decisions are not fixed in time. They can
be revised and revisited but only by more inclusive constitution-making process structured
through more demanding decision-making rules, such as the need for a two-thirds majority or a
referendum.
3.5. Constitutions, corruption and good citizenship

Corruption is a much broader concept than the mere taking or payment of bribes; it covers all
actions that put private interests above public interests in relation to legislation, policy and
administration.

The threat that corruption poses to democracy has long been well understood. When rulers forget
about the common good and concern themselves only with their private gain, politics cease to be
a public vocation and becomes a “trade” (the selling of promises for votes in order to obtain
influence that can, in turn, be sold to private interests for personal profit). In such conditions, good
legislation and good policymaking become impossible, faith in political leadership and in
democratic institutions is undermined and the constitutional order is weakened. This means that
constitution-makers must pay attention to the nurturing of social, economic and cultural

30
institutions that disperse power in society and that equip citizens morally, intellectually and
practically for citizenship.

Nations wishing to embrace a democratic constitutional order might have to begin with soul-
searching. In such circumstances, one way of proceeding might be to embark on a pre-
constitutional phase of national dialogue to bring together the political forces in society in an
attempt to reach agreement on the basic principles of a democratic constitutional order and on the
process of constitution-building.

31
THE FUNDAMENTALS OF CONSTITUTIONAL
COURTS
1. WHAT ARE CONSTITUTIONAL COURTS

If a constitution is intended to be binding there must be some means of enforcing it. We call this
process “constitutional review”. Constitutions across the world have devised broadly two types
of constitutional review, carried out either by a specialized Constitutional Court or by courts of
general legal jurisdiction.

A Constitutional Court is a special type of court that exercises only the power of constitutional
review. Its role is to review laws, and usually also executive acts and decisions, to decide whether
they are constitutionally valid and provide a remedy in cases where they are not. This system is
often called the “centralized” system or the “European” system, given that it was invented by the
Austrian legal scholar Hans Kelsen and is found in most European states such as Austria,
Germany, Italy and Spain. The other type of constitutional review is the one carried out by a court
with general jurisdiction over all questions of civil, criminal and public law – not just
constitutional questions. Typically in this system the power to decide constitutional questions
with finality lies with the highest court, usually the Supreme Court, indicating its primacy over
the courts. It was prominently developed in the United States, that is why is sometimes called the
“diffused” or “American” system.

Most countries that have a Constitutional Court also have a Supreme Court, but the latter does
not have jurisdiction over constitutional questions. Most states that have created Constitutional
Courts have done it within the last 30 years because they see it as a necessary guardian of
democratic institutions, constitutionalism and fundamental rights following a period of military
dictatorship or totalitarian government. Constitutional Courts are more typical of civil law
countries than common law countries. In the British Commonwealth, which consists almost
entirely of common-law countries, the diffused model is almost universal (South Africa is a
notable exception). Lastly, the main motivation in establishing a Constitutional Court is to create
a strong and specialized judicial-type body capable of enforcing a new constitution or a new
constitutional deal.

2. WHAT ARE THE POWERS OF CONSTITUTIONAL COURTS?

There are four main types of power:

• Constitution-drafting jurisdiction (controlling the constitution itself):

o adjudicating issues arising in the constitution-making process
o reviewing the constitutionality of constitutional amendments
• Judicial review of legislative acts (controlling the legislature):
o reviewing the constitutionality of laws in advance of legislation
o reviewing the constitutionality of laws after legislation
o reviewing the constitutionality of decisions by the legislature
• Jurisdiction over officials and agencies (controlling the executive):
o reviewing the constitutionality of executive decisions and actions
o hearing impeachment proceedings
o consideration of criminal or civil cases in respect of official corruption
o consideration of qualifications of individuals to hold or continue to hold public
office
o adjudication of appointment of office-holders under the constitution
o adjudication of disputes as to the competence of organs of state
o adjudication of disputes between organs of state

32
 • Jurisdiction over political parties and elections (controlling elections):
o adjudication of the dissolution or merger of political parties and control over
constitutionality of their actions
o examining the legality of elections and election results at any level
o hearing electoral petitions

No Constitutional Court possesses all four of these powers. The list simply denotes the range of
possible choices constitutional designers may face.

3. HOW ARE CONSTITUTIONAL COURT JUDGES SELECTED?

The selection of constitutional judges is a highly problematic and potentially controversial area.
The system for their selection does not resemble that for ordinary judges. The latter are career
judges normally appointed until retirement and enjoying independence in terms of protection of
their tenure, salaries and pensions. Constitutional judges are selected for the task appropriate to a
specialized court, normally for fixed term.

We can divide selection mechanisms into four categories:

• Selection by the executive and the legislature. Such a process involves nomination by the
President, but appointment requires approval from the legislature. Prior to a confirmation
by ballot, confirmation hearings often provide examination of the personal suitability and
ideological stances of potential candidates.
• Selection by the legislature. The legislature may be solely responsible for making the
final selection. In order to prevent that only the nominees of the ruling party are
appointed, nominations will often require approval by a “supermajority”, for example
two-thirds (Germany) or three-fifths (Spain).
• Selection by the executive, the legislature and the judiciary. Another alternative is to give
to each of the three branches of the state the power to nominate a specified quota of the
constitutional court’s membership. A danger here might be a divided panel where judges
may be sympathetic to the institutional interest that selected them.
• Selection by a special commission. In many systems, a special commission makes an
important contribution to the selection process before the candidates are finally endorsed.
The problem with these systems is deciding who should be qualified to be part of that
commission and what method of selection would prevent this body becoming a forum for
elected politicians.
• Appointment by the executive. The appointments are completely within the powers of the
executive branch. This is not recommended, as it gives the executive the power to control
the Constitutional Court.

Rules about qualifications also vary, and the selection process will usually result in the selection
of highly qualified lawyers, former officials, political figures or legal scholars, who are not career
judges but have sufficient standing and credibility.

4. WHO CAN BRING A CASE TO A CONSTITUTIONAL COURT?

a) Official reference. The Constitutional Court hears a case referred directly by a named official
or agency such as the speaker, the ombudsman, the President, the corruption commission, the
Human Rights commission, the election commission or other independent agency.

b) Legislative reference. A member or a stated number of members of the legislature, or of either

house thereof, may bring a petition to the court.

c) Judicial reference. A court hearing a civil or criminal casa refers an issue of constitutional
interpretation to the Constitutional Court.

33
d) Individual direct petition. Every citizen has standing to raise a constitutional question before
the Constitutional Court.

5. WHAT IS THE RELATIONSHIP BETWEEN THE CONSTITUTIONAL

COURT AND THE ORDINARY COURTS?

Constitutional Courts do not adjudicate in ordinary civil or criminal litigation. Normally the
ordinary judge will refer to the Constitutional Court the question that has arisen and that there is
a real doubt as to the constitutionality of the law or decision involved. This situation can become
very complicated. What if, for example, the judge wrongly decides that no constitutional question
arises, or frames it misleadingly? Constitutional Court decisions are normally supposed to be
final, and therefore binding on all other organs of state, including the ordinary courts. But what if
the Constitutional Court has no opportunity to decide the question due to obstruction by the
ordinary courts?

6. WHAT SORT OF PROCEDURE IS TO BE EXPECTED AND WHAT

ACTUAL VERDICTS AND REMEDIES DO CONSTITUTIONAL COURTS
HAVE AT THEIR DISPOSAL?

Process in Constitutional Courts is rendered relatively simple by the fact that there is usually
neither a trial of facts nor an appeal process. The Constitutional Court may initially have to
determine whether a petition is properly framed or that the person petitioning has the right to do
so. Practice also varies regarding the delivery of judgements. In many civil law jurisdictions,
judgements tend to be short and factual, with little reasoning to explain the decision.

Remedies stem from a finding of unconstitutionality. While it might seem obvious that such a
finding simply invalidates the law or act or decision in question, in fact there is much doctrinal
technicality around the issue of what choices are open to Constitutional Courts in this situation.
Successful Constitutional Courts appear to enjoy flexibility in the granting of remedies.

7. WHAT ARE THE ADVANTAGES AND DISADVANTAGES OF HAVING

A CONSTITUTIONAL COURT?

Advantages:

• Strong enforcer for a new constitution

• Easiest way to achieve finality and uniformity in constitutional interpretation
• Allows for the selection of judges who are either specialized in constitutional law, or are
thought to bring more general expertise or representative capacity
• Acts as a powerful facilitator in maintaining, or transitioning to, democracy and
constitutional government
• Avoids that the constitution is exposed to the will of a parliamentary majority or a ruthless
president

Disadvantages:

• There is a danger that the Constitutional Court may be threatened with retaliatory action
such as reduction or abolition of its powers or even dismissal
• May not appear to be impartial in its decisions
• There is only one chance to make the correct decision: in the Constitutional Court itself

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8. WHAT IS THE INTERNATIONAL EXPERIENCE OF CONSTITUTIONAL
COURTS? HOW CAN CONSTITUTIONAL COURTS CONTRIBUTE TO
DEMOCRATIZATION?

Alec Stone Sweet’s three benchmarks to decide whether a Constitutional Court is successful are
a good general indicator: “constitutional review can be said to be effective to the extent that the
important constitutional disputes arising in a polity 49 are brought to the Constitutional Court on
a regular basis, that the judges who resolve these disputes give reasons for their findings, and that
those who are governed by the constitutional law accept that the court’s rulings have some
precedential effect”. Another factor that militates against proper assessment is that one cannot
know in advance how the Constitutional Court’s case load will turn out. In some cases the
Constitutional Court has been overloaded with electoral cases, whereas in others it has dealt with
the dissolution of political parties, or disputes concerning regional devolution. Whether it has
been successful in such major areas does not indicate whether other courts would be successful,
or even whether the concentration on one or two major areas would be repeated.

It is usually thought that a Constitutional Court has a preeminent duty to maintain its
independence in spite of any adverse reactions from the executive, other agencies, the media, civil
society or particular interest groups. The diffusion of multiparty democracy has gone hand in hand
with that of the Constitutional Court as a powerful democratic mechanism. It entrenches
democratic rights and encourages dialogues with and between other organs of state. Above all, it
enforces the notions of free and fair elections and the protection of civil liberties of citizens and
human rights in general.

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RULE OF LAW AND DUE PROCESS
The rule of law is the principle that the law should rule the sense that it establishes a framework
too which all conduct and behaviour conform, applying equally to all members of society, be they
private citizens or government officials.

Spanish Court (art.9)

9.1. Citizens and public authorities are bound by the Constitution and all other legal provisions.

9.3. The Constitution guarantees the principle of legality, the hierarchy of legal provisions, the
publicity of legal statutes, the non-retroactivity of punitive provisions that are not favourable to
or restrictive of individual rights, the certainty that the rule of law shall prevail, the accountability
of public authorities, and the prohibition of arbitrary action of public authorities.
Principles:

1. Separation of powers
2. The law is made by the representatives of the people
3. The law and its administration are subject to open and free criticism
4. The law is applied equally and fairly
5. The law is capable of being know to everyone
6. The judicial system is independent
7. All people are presumed to be innocent until proven otherwise
8. No one can be prosecuted for any offence not known to the law when committed
9. No one is subject adversely to a retrospective change of the law

DUE PROCESS

Fundamental procedural legal safeguards of which every citizen has an absolute right when a state
or court intends to take a decision that could affect any right of that citizen. The most basic right
protected under the due process doctrine is the right to be given notice and an opportunity to be
heard, and the right to an impartial judge.

Spanish Constitution (art. 24.1)

1. All persons have the right to obtain effective protection from the judges and the courts in the
exercise of their rights and legitimate interests, and in no case may there be a lack of defence.

2. Likewise, all have the right to the ordinary judge predetermined by law; to defence and
assistance by a lawyer; to be informed of the charges brought against them; to a public trial
without undue delays and with full guarantees; to the use of evidence appropriate to their defence;
not to make self-incriminating statements; not to plead themselves guilty; and to be presumed
innocent.
History

Due process first appeared as a term in law in reference to the Magna Carta of 1215, which
stated: “No free man… of his peers or by the law of the land”. It was Edward III who signed the
statutes which entrenched the concept into the common law; first, the 1345 Liberty of Subject
Act: “No man of what estate…in answer by due process of the law”. Fourteen years later, the
Observance of Due Process of Law Act: “At the request of the Commons,…that no man be put
to answer without presentment before justices or matter of record or by due process and writ
original, according to the old law of the land;…”

36
The drafters of the American Constitution referred to due process; that the government must
use due process of law in any process which might deprive a person of life liberty or property.
Development

In 1897, the courts ruled that due process meant that the government had to justly compensate
any person from whom they expropriated property.

In 1932 (Powell vs Alabama) and 1963 (Gideon v Wainwright), the requirements that the
government had to provide legal counsel for indigent defendants, then any defendant facing a
felony, and finally, any defendant facing a jail sentence, were all eventually read-in to the
requirements for due process.

Similar in many regards to what other common law jurisdictions refer to as administrative law or
rules of natural justice, due process has also come to mean that the government, before making
any decision which might deprive a citizen of liberty or property, must give notice of the
Government’s case, afford to the citizen an opportunity of being heard and thus to accommodate
a hearing even, in some cases, a trial before an impartial arbitrator. Due process has also come to
mean that statutes must be precise, and that the government must be clear about what activity is
being restricted.
Substantive and procedural due process

In general, substantive due process prohibits the government from infringing on fundamental
constitutional liberties. Substantive law create, defines and regulates rights. By contrast,
procedural due process refers to the procedural limitations placed on the manner in which a law
is administered, applied, or enforced.

37
WHAT IS THE RULE OF LAW?
I. WHAT IS THE RULE OF LAW?

The rule of law can be understood as a legal-political regime that attempts to protect the rights of
citizens from arbitrary and abusive use of government power.
Elements of the rule of law

Lon Fuller identified 8 elements of law which have been recognized as necessary for a society
aspiring to institute the rule of law.

1. Laws must exist and those laws should be obeyed by all, including government officials
2. Laws must be published
3. Laws must be prospective so that the effect of the law may only take place after the law
has been passed
4. Laws should be written with reasonable clarity to avoid unfair enforcement
5. Law must avoid contradictions
6. Law must not command the impossible
7. Law must stay constant through time to allow the formalization of rules; however, law
also must allow for timely revision when the underlying social and political
circumstances have changed
8. Official action should be consistent with the declared rule

Standing alone, these eight elements may seem clear and understandable. But they are actually
difficult to implement in the real world because governments are often compelled to prioritize
one goal over another to resolve conflicts in a way that reflects society’s political choices. Fuller
recognized these conflicts and suggested that societies should prepare to balance the different
objectives listed above.
Beyond fuller’s elements

The rule of law extends beyond mere regulations and is also shaped by the so-called “institutional
constraints”. One such institutional constraint is the existence of an independent judiciary; another
is developing ways of promoting “transparent governance”. Informal constraints, such as local
culture or traditions that may encourage citizens to organize their behaviour around the law, also
help constrain the government, promote liberty and, therefore, define the rule of law.

II. THE RULE OF LAW AND DEVELOPMENT

Multilateral institutions such as the World Bank and many policymakers throughout the world
believe the rule of law promotes economic development.
Theory

Modern economic development often comes with the introduction of a market economy. Max
Weber has commented that the capitalistic order upon which a market economy is based is
organized upon a rational, law-bound state. Law is important to the market economy because it is
the common basis on which parties can make agreements; it provides confidence that disputes
can be resolved efficiently and fairly.

The rule of law also serves as an important assurance of social rights and government
accountability. Governmental restraint is especially critical for many transitioning economies
where a previously planned economy is to be transformed into one that is market-based. The rule
of law thus assures market participants that the government will adopt a hands-off approach to

38
investments and production, allowing them to fully exercise their rights in relation to land, labour
and capital.
Important components of rule-of-law reforms

1. Court Reforms

The efficiency of the courts is an important component in rule-oflaw reforms. At the most basic
level, this simply means that the courts need to be available to adjudicate disputes and enforce
resolutions. For countries that are further along in the reform process, more complex structural
reforms that strengthen court capacity, independence, and transparency are needed.

To increase accountability and transparency, information technology systems may be installed to

provide greater public access. To increase independence of the courts, the government can provide
them with funding that will allow them to make their own financial and administrative decisions.
Furthermore, for countries that have already established these structural reforms, to encourage the
adoption of the rule-of-law, court performance should be evaluated on a periodic basis.

2. Legal Rules

Another important rule-of-law goal is to build the legal rules. Economic reforms have generated
a large number of new economic laws is developing countries. For example, investment laws
were passed in former socialist countries to offer clear and broad legal protection for all types of
investments.
Institutional encouragement on the global level

To encourage additional country-specific development, in the early 1990s the World Bank and
the International Monetary Fund (IMF) began conditioning financial assistance on the
implementation of the rule of law in recipient countries. These organizations provided aid to
support initiatives in legislative drafting, legal information, public and legal education and judicial
reforms.

Currently, in its Millennium Development Goals (MDG, the United Nations (UN) also champions
the rule of law as a vehicle to bring about more sustainable environmental practices.

III. CRITICISMS OF THE RULE OF LAW

Law as the ruling standard

The very term “rule of law” suggests that the law itself is the sovereign in a society. As an ideal,
the rule of law stands for the proposition that no person or particular branch of government may
rise above rules made by elected political officials. The rule of law, therefore, is supposed to
promote equality under the law.

Critics of the rule of law, however, have noted that this system creates a ruling elite that has the
power to manipulate through law. Consequently, the law cannot serve as an effective barrier to
the government’s abuse of power because power structures in society determine the outcome of
legal issues and problems. Because judicial interpretation and enforcement of the law is
influenced by the ruling elite, the rule of law does nothing more than legitimize the already
existing legal relationship and power structures.

Partly responding to these critics, some scholars have commented that part of problem with the
rule of law is its narrow conception. Instead of viewing the rule of law solely as a judicially
focused book of rules, scholars should focus more on the informal and institutional constraints
that restrict governments, such as moral and traditions. This broader conception may help avoid

39
situations in which the legal elite manipulate laws because the rule of law is not solely dependent
on the judiciary.
Additional limits of the rule of law

Laws are often incapable of providing definitive standards of behaviour because of their complex
structures and unavoidable ambiguities in language. Critics of the rule of law claim that due to
the indeterminacy in the rules, one can never be sure that their actions are legitimate, or their
freedom justified. Furthermore, the rule of law may not be tied to general notions of justice and
fairness. The rule of law is therefore sometimes criticized for tolerating extraordinarily unjust
rules.
Law & development: legal transplantation

The term “legal transplantation” describes the phenomenon of borrowing legal rules from other
countries. Many developing countries, including China, Russia or Turkey, since the early 1990s,
had varying legal traditions of their own. When developing countries such as these adopt laws
from other countries, the rules borrowed may not fit the underlying tradition, culture, and social
context of the developing country.

Legal transplantation is especially common in economic laws such as competition (antitrust),

consumer protection, intellectually property rights, and securities and exchange regulations. The
transplantation of economic laws is still often criticized, however, as being a form of subtle
blackmail. Because Western societies generally control access to the global market, to some
extent, developing nations must adopt the developed nations’ laws and understanding of the rule
of law in order to engage effectively in global economic activity.

IV. CONCLUSION

As evidence by the failure to arrive at a precise definition, the rule of law is a complicated theory.
Importantly, the rule of law is more than just a set of rules and their judicial application. As a
much advocated theory in development studies, the rule of law is also a matter of policymaking,
institutional development, and international politics.

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EUROPEAN UNION LAW
1. What is the European Union?

The Eu is a unique economic and political partnership between 28 European countries. It was
created in the aftermath of the Second World War. The idea was that countries which traded with
one another became economically interdependent and so more likely to avoid conflict. The result
was the European Economic Community (EEC), created in 1958 between six countries: Belgium,
Germany, France, Italy, Luxembourg, and the Netherlands.
2. From economic to political union

What began as a purely economic union has evolved into an organization spanning policy areas,
from development aid to environment. The name changed from the EEC to European Union (EU)
in 1993.
3. Mobility, growth, stability and a single currency

The EU has delivered half a century of peace, stability, and prosperity, helped raise living
standards, and launched a single European currency, the euro. Thanks to the abolition of border
controls between EU countries, people can travel freely throughout most of the continent.
4. Law-making

There are three main institutions involved in EU legislation:

a) The European Parliament, which represents the EU’s citizens and is directly elected by
them
b) The Council of the European Union, which represents the governments of the individual
member countries
c) The European Commission, which represents the interests of the Union as a whole

Together, these three institutions produce through the “Ordinary Legislative Procedure” the
policies and laws that apply throughout the

EU. EUROPEAN COMMISSION

28 commissioners, one from each EU country, provide the Commission’s political leadership
during their 5-year term. The European Commission oversees and implements EU policies by:

• Proposing new laws

The Commission has the “right of initiative” – it can propose new laws to protect the
interests of the EU and its citizens. The Commission’s departments produce a draft of the
proposed new law, which is then sent to the Council and Parliament. After debating and
amending the draft, they decide whether to adopt it as a law.
• Managing the EU’s budget and allocating funding
• The Commission sets broad long-term spending priorities for the EU in the EU “financial
framework”. It also draws up an annual budget for approval by Parliament and the
Council and supervises how EU funds are spent. The Commission’s management of the
budget is scrutinized by the Court of Auditors.
• Enforcing European law
As “guardian of Treaties”, the Commission checks that each member country is applying
EU law properly. If it thinks a national government is failing to apply the EU law, the
Commission first sends an official letter asking it to correct the problem. As a last resort,
the Commission refers the issue to the Court of Justice.

41
 • Representing the EU internationally
The Commission speaks on behalf of all EU countries in international bodies like the
World Trade Organization. It also negotiates international agreements for the EU.

COUNCIL OF THE EUROPEAN UNION

This is where national ministers from each EU country meet to adopt laws and coordinate policies.

Committees

• Pass Eu laws
• Coordinate the broad economic policies of EU member countries
• Sign agreements between the EU and other countries
• Approve the annual EU budget - Develop the EU’s foreign and defense policies
• Coordinate cooperation between courts and police forces of member countries

Members

There are no fixed members in the Council. At each meeting, each country sends the minister for
the policy field being discussed - e.g. the environment minister for the meeting dealing with
environmental matters.

Voting

The bigger a country’s population, the more votes it has, but in fact the numbers are weighted in
favour of the less populous countries:

• Germany, France, Italy and the UK: 29 votes

• Spain and Poland: 27 votes
• Romania: 14 votes
• Netherlands: 13 votes
• Belgium, Czech Republic, Greece, Hungary and Portugal: 12 votes
• Austria, Bulgaria and Sweden: 10 votes
• Croatia, Denmark, Ireland, Lithuania, Slovakia and Finland: 7 votes
• Cyprus, Estonia, Latvia, Luxembourg and Slovenia: 4 votes
• Malta: 3 votes

TOTAL: 352 votes

When the Council’s votes, “qualified majority voting” applies. A qualified majority is reached
when:

a) A majority (sometimes even 2/3) of the 28 countries vote in favour

b) At least 60 of the possible 352 votes are cast

In votes concerning sensitive topics – like security and external affairs and taxation decisions by
the Council have to be unanimous. From 2014 a system known as “double majority voting” will
be introduced. For a proposal to go through, it will need the support of 2 types of majority: a
majority of countries (at least 15) and a majority of the total EU population (the countries in
favour must represent at least 65% of the EU population).

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EUROPEAN PARLIAMENT

Directly elected by EU voters every 5 years, members of the European Parliament (MEPs)
represent the people. The European Parliament has three main goals:

• debating and passing European laws

• scrutinizing other EU institutions, particularly the Commission, to make sure they are
working democratically
• debating and adopting the EU’s budget

The number of MEPs for each country is roughly proportionate to its population, with a total
number of 751 (750 plus the President). MEPs are grouped by political affiliation, not by
nationality.
5. EU treaties

The European Union is based on the rule of law. This means that every action taken by the EU is
founded on treaties that have been approved voluntarily and democratically by all EU members
countries. The Treaty of Lisbon increased the number of policy areas where “Ordinary Legislative
Procedure” is used.
6. Application of EU law

EU law – which has equal force with national law – confers rights and obligations on the
authorities in each member country, as well as individuals and business. EU legislation takes the
form of:

• Treaties establishing the European Union and governing the way it works
• EU regulations, directives and decisions – with a direct or indirect effect on EU member
states
• EU case-law is made up of judgements from the European Union’s Court of Justice,
which interprets EU legislation
7. Other EU institutions

Other European institutions which play a vital role:

• The Court of Justice of the EU upholds the rule of European law

• The Court of Auditors checks the financing of the EU’s activities
• The European Central Bank is responsible for European monetary policy
• The European External Action Service (EEAS) assists the High Representative of the
Union for Foreign Affairs and Security Policy
• The European Economic and Social Committee represents civil society, employers and
employees
• The Committee of the Regions represents regional and local authorities
• The European Investment Bank finances EU investments projects and helps small
businesses through the European Investment Fund
• The European Ombudsman investigates complaints about maladministration by EU
institutions and bodies
• The European Data Protection Supervisor safeguards the privacy of people’s personal
data
• The Publications Office publishes information about the EU
• The European Personnel Selection Office recruits staff for the EU institutions and other
bodies

43
• The European School of Administration provides training in specific areas for members
of EU staff
• A host of specialized agencies and decentralized bodies handle a range of technical,
scientific and management tasks

44
THE EUROPEAN LAW: QUESTIONS AND
ANSWERS
WHAT IS THE EUROPEAN UNION?

The European Union (EU) is a unique political and economic partnership that currently consists
of 27 member states. It was built through a series of binding treaties after World War II to promote
peace and economic recovery in Europe. Its founders hoped that by creating specified areas in
which member states agreed to share sovereignty – initially coal and steel production, trade and
nuclear energy – it would promote interdependence and make another war unthinkable.

HOW DOES THE EU WORK?

EU member states work together through common institutions to set policy and promote their
collective interests. Decision-making processes and the role of the EU institutions vary depending
on the subject under consideration. On a multitude of economic and social policies EU institutions
hold executive authority. EU decisions in such areas often have a supranational quality because
most are subject to a complex majority voting system among member states and are legally
binding. For issues falling under the Common Foreign and Security Policy, member states have
agreed to cooperate, but most decision-making is intergovernmental and requires the unanimous
agreement of all EU countries. Finally, in 2009 the Lisbon Treaty extended the EU’s majority
voting system to most Justice and Home Affairs.

HOW IS THE EU GOVERNED?

The EU is governed by several institutions:

European Council: acts as the strategic guide for EU policy. It is composed of the Heads of State
or Government of the EU’s member states and the President of the European Commission. It
meets several times a year in what are often termed “EU summits”.

European Commission: is essentially the EU’s executive power. It implements and manages EU
decisions and common policies, ensures that the provisions of the EU’s treaties are carried out
properly, and has the sole right of legislative initiative in most policy areas. It is composed of one
Commissioner from each country, who is appointed by agreement among the member states to
five-year terms and approved by the European Parliament.

Council of the European Union: represents the national governments. The Council enacts
legislation, usually based on proposals put forward by the Commission, and agreed to by the
European Parliament. Different ministers from each country participate in Council meetings
depending on the subject under consideration. The Presidency of the Council rotates among the
member states, changing every six months.

European Parliament: represents the citizens of the EU. It currently has 751 members who are
directly elected for five-year terms. Each EU country has a number of seats roughly proportional
to the size of its population. Although the Parliament cannot initiate legislation, it shares
legislative power with the Council of the EU in many policy areas, giving it the right to accept,
amend, or reject the majority of proposed EU legislation in a process known as the “ordinary
legislative procedure” or “co-decision”. The Parliament also decides on the allocation of the EU’s
budget jointly with the Council. Members of the European Parliament gather according to
political affiliation, rather than nationality.

45
Other institutions:

• Court of Justice: interprets EU laws and its ruling are binding.

• Court of Auditors: monitors financial management.
• European Central Bank: manages the euro and EU monetary policy
• Advisory committees: represents economic, social and regional interests.

WHAT IS THE LISBON TREATY?

On December 1, 2009, the EU’s latest institutional reform endeavour – the Lisbon Treaty – came
into force following its ratification by all of the EU’s then-27 member states. It is a final product
of an effort begun in 2002 to reform the EU’s governing institutions and decision-making
processes. Changes introduced by the Lisbon Treaty seek to:

• enable the EU to function more effectively;

• enhance the EU’s role as a foreign policy actor; and
• increase democracy and transparency within the EU

To help accomplish these goals, the Lisbon Treaty established two new leadership positions:

• The President of the European Council: coordinator and spokesman for their work, seeks
to ensure policy continuity, and strives to forge consensus among member states.
• A dual-hatted position of High Representative of the Union for Foreign Affairs and 56
Security Policy to serve essentially as the EU’s chief diplomat.

Other key measures in the Lisbon Treaty included the following:

• Simplifying the EU’s qualified majority voting system and expanding its use to policy
areas previously subject to member state unanimity in the Council of the EU.
• Increasing the relative power of the European Parliament by strengthening its role in the
EU’s budgetary process and extending the use of the “codecision” procedure to more
policy areas, including agriculture and home affairs issues.

For the first time in the EU’s history, the Lisbon Treaty also introduced an “exit clause” – Article
50 of the TEU – which outlines procedures for a member state to the leave the EU. A member
state that decides to leave would invoke Article 50 by notifying the European Council of its
intentions, which would trigger a two-year period for withdrawal negotiations to be concluded;
the EU may also decide to extend the time for negotiations.

WHAT IS THE EURO AND THE EUROZONE?

Nineteen of the EU’s current 27 member states use a common single currency, the euro, and are
often collectively referred to as the “eurozone”. Euro notes and coins replaced national currencies
in participating states in January 2002. Eurozone participants share a common central bank – the
European Central Bank (ECB) – and a common monetary policy. However, they do not have a
common fiscal policy.

In 2009-2010, a serious crisis in the eurozone developed. It began in Greece due to the country’s
high public debt load. As investors became increasingly nervous during 2009 about the
government’s debt level amid the global financial crisis, markets demanded higher interests rates
for Greek bonds, which drove up Greece’s borrowing costs. By early 2010, Greece risked
defaulting on its public debt. Markets concerns quickly spread to several other eurozone countries
with high levels of public debt, including Ireland, Portugal, Italy and Spain. The debt problems
of these countries also posed a risk to the European banking system, slowed economic growth,
and led to rising unemployment in many eurozone countries. In order to avoid default, European

46
leaders and EU institutions gave Greece, Ireland, Portugal and Italy “bail-out” loans from the EU
and the International Monetary Fund (IMF). Such assistance, however, came with some strings
attached, including the imposition of strict austerity measures. Spain also enacted significant
austerity measures, and eurozone leaders approved a recapitalization plan for Spanish banks.

The eurozone crisis began to abate in late 2012 as market confidence became more positive, and
the situation started to stabilize in most eurozone countries. In the first half of 2015, prospects
grew that Greece might exit the eurozone (dubbed “Grexit”) as the Greek government – led by
the leftist, anti-austerity Syriza party – sought further financial aid from its eurozone creditors but
also demanded debt relief and an easing of austerity. In midJuly, however, the Syriza-led
government acceded to EU demands for more austerity and economic reforms in exchange for
the badly needed financial assistance. Although Grexit was averted, the threat of Grexit has
lingered, as have some tensions between Athens, its eurozone creditors, and the IMF over the
terms of Greece’s assistance program and the question of dent relief. On August 20, 2018, Greece
officially exited its financial assistance plan; however, it must continue to meet stringent financial
conditions and will remain subject to financial monitoring by the EU and the IMF.

From its start, the eurozone crisis generated tensions among member states over the proper
balance between imposing austerity measures and stimulating growth and over whether greater
EU fiscal integration was necessary. The fraught negotiations with Greece in 2015 significantly
challenged the EU as an institution but EU governments and leaders appear to remain committed
to the euro and the broader EU project.

WHY AND HOW IS THE EU ENLARGING?

The EU views the enlargement process as an extraordinary opportunity to promote stability and
prosperity in Europe.

• 1952: European Coal and Steel Community (Belgium, France, Germany, Italy,
Luxembourg and Netherlands)
• 1973: European Community (+ Denmark, Ireland and UK)
• 1981: + Greece
• 1986: + Portugal and Spain
• 1995: European Union (+ Austria, Finland and Sweden) –
• 2004: + Chez Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and
Slovenia, Cyprus and Malta
• 2007: + Bulgaria and Romania
• 2013: + Croatia

To be eligible for EU membership, countries must first meet a set of established criteria, including
having a functioning democracy and market economy. Analysts contend that the carefully
managed process of enlargement is one of the EU’s most powerful policy tools and that, over the
years, it has helped to transform many European countries into more democratic and affluent
societies. At the same time, EU enlargement is also very much a political process. Most significant
steps on the path to accession require the unanimous agreement of the EU’s existing member
states. Bosnia-Herzegovina and Kosovo are regarded as potential future candidates for EU
membership.

The EU maintains that the enlargement door remains open to any European country fulfils the
EU’s political and economic criteria for membership. Nevertheless, some European officials and
many EU citizens are cautious about additional EU expansion. Worries about continued EU
enlargement range from fears of unwanted migrant labour to the implications of an ever-
expanding union on the EU’s institutions, finances, and overall identity.

47
DOES THE EU HAVE A FOREIGN POLICY?

The EU has a Common Foreign and Security Policy (CFSP), in which member states adopt
common policies, undertake joint actions, and pursue coordinated strategies in areas in which
they can reach consensus. The eruption of hostilities in the Balkans in the early 1990s and the
EU’s limited tools for responding to the crisis convinced EU leaders that the Union had to improve
its ability to act collectively in the foreign policy realm.

CFSP decision-making requires unanimous agreement of all national governments. CFSP remains
a work in progress. Although many view the EU as having made considerable strides in forging
common policies on a range of international issues, others argue that the credibility of CFSP
suffers from an inability to reach consensus. Some differences in viewpoint are inevitable among
a multitude of countries that still retain different approaches, cultures, histories, and relationships
– and often different national interests – when it comes to foreign policy.

The EU’s Lisbon Treaty seeks to boost CFSP by increasing the EU’s visibility on the world stage
and making the EU a more coherent foreign policy actor. As noted above, the High Representative
position aims to marry the EU’s collective political influence with the Commission’s economic
weight and development tools.

DOES THE EU HAVE A DEFENSE POLICY?

Since 1999, the EU has been working to develop a Common Security and Defense Policy (CSDP).
CSDP seeks to improve the EU’s ability to respond to security crises and to enhance European
military capabilities. The EU has created three defense decision-making bodies and has developed
a rapid reaction force and multinational “battlegroups”. CSDP operations focus largely on tasks
such as peacekeeping, crisis management and humanitarian assistance.

However, improving European military capabilities has been difficult. Recently, many EU
officials and national leaders have supported increased defense spending and advocated for
further EU defense integration. Such calls have been driven by both the new security challenges,
including a resurgent Russia, and a desire to bolster the EU project in the wake of the UK vote to
leave the bloc. In December 2017, 25 member states launched a new EU defense pact (known
officially as Permanent Structured Cooperation or PESCO) aimed at spending defense funds more
efficiently, jointly developing military capabilities, and increasing military interoperability.
Nevertheless, some observers note that the EU and national governments will continue to face
decision-making and procurement challenges that could limit PESCO’s effectiveness.

WHAT IS THE RELATIOSHIP OF THE EU WITH THE NATO?

The EU has asserted that CSPD is intended to allow the EU to make decisions and conduct
military operations “where NATO as a whole is not engaged”, and that CSPD is not aimed at
usurping NATO’s collective defense role. The Berlin Plus arrangement was designed to help
ensure close NATO-EU links and prevent a wasteful duplication of European defense resources.

The emergence of new security threats in Europe has prompted some recent progress towards
enhanced NATO-EU cooperation. IN 2016, NATO and the EU concluded two new arrangements
– one on countering migrant smuggling in the Aegean Sea and another on cyber defense – and
issued a joint declaration to “give new impetus and new substance” to their strategic partnership.
Nevertheless, some experts remain concerned that a minority of EU member states would like to
build an EU defense arm more independent from NATO in the longer term. Given that the UK
has long been key to ensuring that any EU defense efforts remained closely tied to NATO, the
Brexit could embolden the EU to develop a more autonomous EU defense identity.

48
WHAT IS JUSTICE AND HOME AFFAIRS?

The Justice and Home Affairs (JHA) field seeks to foster common internal security measures
while protecting the fundamental rights of EU citizens and promoting the free movement of
persons within the EU. For many years, EU efforts to harmonize policies in the JHA field were
hampered by member states’ concerns that such measures could infringe on their legal systems
and national sovereignty. The 2001 terrorist attacks on the US and subsequent attacks in Europe
in the 2000s galvanized progress in the JHA area. Among other measures, the EU has established
a common definition of terrorism, an EUwide arrest warrant, and enhanced tools to stem terrorist
financing. The Lisbon Treaty gave the European Parliament “co-decision” power over the
majority of JHA policy areas. The Treaty also made most decisions on JHA issues in the Council
of the European Union subject to the qualified majority voting system, rather than unanimity.

WHAT IS THE SCHENGEN AREA?

The Schengen area of free movement encompasses 22 EU member states plus four non-EU
countries. Within the Schengen area, internal border controls have been eliminated, and
individuals may travel without passport checks among participating countries. The Schengen area
is founded upon the Schengen Agreement in 1985. In 1999, this agreement was incorporated into
EU law. The Schengen Borders Code compromises a detailed set of rules governing both external
and internal border controls in the Schengen area, including common rules on visas, asylum
requests, and border checks.

Along with the abolition of internal borders, Schengen participants agreed to strengthen
cooperation between their police and judicial authorities in order to safeguard internal security
and fight organized crime. As part of these efforts, they established the Schengen Information
System (SIS), a large-scale information database that enables police, border guards, and other law
enforcement agents to enter and consult alerts on certain categories of persons and objects.

DOES THE EU HAVE A TRADE POLICY AND PROCESS?

The EU has a common external trade policy, which means that trade policy is an exclusive
competence of the EU and no member state can negotiate its own international trade agreement.
The European Commission and the Council of the European Union work together to set common
customs tariff, guide export policy, and decide on any trade protection or retaliation measures.

The process for negotiating and concluding a new international trade agreement begins with
discussions among all three EU institutions and a Commission impact assessment. Provided there
is a general agreement to proceed, the Commission initiates an informal scoping exercise with the
potential partner country or trade bloc. Following this dialogue, the Commission then formulates
what are known as “negotiating directives”, which sets out the Commission’s overall objectives
for the future agreement.

Provided the Council approves the “negotiating directives”, the Commission then launches formal
negotiations for the new trade agreement on behalf of the EU. Within the Commission, the
department that handles EU trade policy is the Directorate General for Trade (DGT). When
negotiations reach the final stage, both parties initiate the proposed accord. It is then submitted to
the Council of the European Union and the Parliament for review. If the Council approves, it
authorizes the Commission to formally sign the agreement. Once the new trade accord is officially
signed by both parties, the Council submits it to the Parliament for its consent. Although the
Parliament is limited to voting “yes” or “no” to the new accord, it can ask the Commission to
review or address any concerns. After Parliament gives its consent and following ratification in
the member states (if required), the Council adopts the final decision to conclude the agreement.
It may then be officially published and enter into force.

49
HOW DO EU COUNTRIES AND CITIZENS VIEW THE EU?

EU member states have long believed that the Union magnifies their political and economic
interests. Nevertheless, tensions have always existed within the EU between those members that
seek an “ever closer union” and those that prefer to protect their national sovereignty. Another
class divide in the EU is the big versus small state lines; small members are often cautious of
initiatives that they fear could allow larger countries to dominate EU decision-making

The prevailing view among European publics has likewise been historically favourable toward
the EU. Many EU citizens value the freedom to easily travel, work, and live in other EU countries.
At the same time, there has always been a degree of “euroscepticism” driven by fears about the
loss of national sovereignty or concerns about the EU’s “democratic deficit” – a feeling that
ordinary citizens have no say over decisions taken in faraway Brussels. Over the last few years,
however, Europe’s economic difficulties and worries about immigration and globalization have
contributed to growing support for populist, antiestablishment parties throughout Europe. Many
of these parties are also considered eurosceptic. Austria, Denmark, Finland, France, Germany,
Greece, Hungary, Italy, the Netherlands, Poland, Sweden and the UK are among those EU
countries with prominent populist and, to at least some extent, eurosceptic parties. Such parties
are challenging the generally pro-European establishment parties and have put pressure on
mainstream leaders to embrace some of their positions on issues such as immigration and further
European integration.

At the same time, opinion polls indicate that a majority of EU citizens remain supportive of the
EU. Although a range of antiestablishment and eurosceptic parties hold up 25% of seats in the
current European Parliament, such parties have struggled to form a cohesive opposition and thus
far have failed to exert significant influence on the EU’s legislative process.

WHAT DOES THE UK VOTE TO LEAVE MEAN FOR THE EU?

In a June 2016 public referendum, UK voters favoured leaving the EU by 52% to 48%. The UK
government enacted the results of this “Brexit” referendum in March 2017, when it invoked
Article 50 of the Treaty on European Union. In December 2017, the EU and the UK reached an
agreement in principle covering many aspects of three priority withdrawal issues (the Irish border,
the rights of UK and EU citizens, and the financial settlement), and talks began in March 2018 on
the UK’s future relationship with the EU.

EU leaders assert that despite Brexit, the EU will continue. However, the UK is the bloc’s second-
largest economy and, along with Germany and France, long has been viewed as one of the EU’s
“big three”. As such, the UK’s departure could have significant political and economic
implications for the EU and for the future of the EU integration project. Nevertheless, some
contend that Brexit ultimately could lead to a more like-minded EU, able to pursue deeper
integration without the UK opposition.

In March 2017, the EU-27 leaders met in Rome to commemorate the 60th anniversary of the
Treaties of Rome (two treaties agreed in 1957 that are regarded as key founding blocks of the
present-day EU) and to conclude a “reflection process” launched in the wake of the UK’s Brexit
referendum. EU-27 leaders issued the Rome Declaration, in which they reasserted their continued
commitment to the EU project.

DOES THE UNITED STATES HAVE A FORMAL RELATIONSHIP WITH

THE EUROPEAN UNION?

For decades, the United States and the EU have maintained diplomatic and economic ties. The
1990 U.S.-EU Transatlantic Declaration set out principles for greater consultation and established
regular summit and ministerial meetings. In 1995, the New Transatlantic Agenda (NTA) and the

50
EU-U.S. Joint Action Plan provided a framework for promoting stability and democracy together,
responding to global challenges and expanding world trade. The Transatlantic Legislators’
Dialogue (TLD) has been the formal mechanism for engagement and exchange between the U.S.
House of Representatives and the European Parliament since 1999.

WHO ARE THE U.S. OFFICIALS’ COUNTERPARTS IN THE EU?

During U.S.-EU summits, the U.S. President meets with the President of the European
Commission and the President of the European Council. The U.S. Secretary of State’s most
frequent interlocutor in the EU context is the High Representative for the Union’s Foreign Affairs
and Security Policy. The U.S. Trade Representative’s key interlocutor is the European
Commissioner for Trade. Other U.S. Cabinet-level officials interact with Commission
counterparts or member state ministers in the Council of Ministers formation as issues arise. Many
working-level relationships between the U.S. and EU officials also exist. A delegation in
Washington D.C. represents the EU in its dealing with the US government, while the U.S. Mission
to the EU represents Washington’s interests in Brussels.

HOW ARE THE U.S.-EU POLITICAL RELATIONS DOING?

The U.S. has supported the European integration project since the 1950s as a way to help keep
European nationalism in check, promote political reconciliation and prevent another catastrophic
war. The U.S. often looks to the EU for partnership on an extensive range of common foreign
policy concerns. They have promoted peace and stability in various regions and countries,
enhanced law enforcement and counterterrorism cooperation, and sought to tackle cross-border
challenges, such as cybersecurity. At times, the U.S.-EU political relationship has faced serious
challenges. U.S.-EU relations hit a historic low in 2003 over the U.S.-led invasion of Iraq, which
some EU members supported, and others strongly opposed. Other frictions resurfaced following
the unauthorized disclosures in 2013 of U.S. surveillance programs and allegations of U.S.
intelligence-collection operations in Europe.

Given long-standing U.S. support for the EU, many EU leaders have been taken back by what
they perceive as President Trump’s hostility towards the bloc. President Trump has repeatedly
singled out the EU’s trade practices as harmful to U.S. commercial interests. EU officials and
many European governments also are uneasy with elements of the Trump Administration’s
“America First” foreign policy, and U.S-EU divisions have emerged on a number of issues. The
EU is particularly concerned by President Trump’s decision to withdraw from the 2015
multilateral nuclear agreement with Iran (the JCPOA) and the Paris climate agreement, and to
recognize Jerusalem as the capital of Israel.

Some European and EU officials increasingly question whether the U.S. will remain a reliable
partner in the years ahead. Many observers view recent EU efforts to enhance defense cooperation
and to conclude agreements with other countries and regions as aimed not only at boosting the
EU project but also at reducing European dependence on the U.S.

HOW ARE THE U.S.-EU ECONOMIC RELATIONS DOING?

The U.S. and the EU share the largest trade and investment relationship in the world. The
combined economies account for 46% of global gross domestic product, roughly 28% of global
exports, and 33% of global imports. They also account for over half of global foreign direct
investment, and they are each other’s most profitable markets.

U.S.-EU economic relations traditionally have been viewed as mutually beneficial, but some
tensions have always existed. Long-standing U.S.-EU trade disputes persist over poultry,
bioengineered food products, protection of geographical indications (GIs), and subsidies to
airplane manufacturers Boeing and Airbus. In 2013, the U.S and the EU launched negotiations on

51
a free trade agreement known as the Transatlantic Trade and Investment Partnership (T-TIP).
Goals for T-TIP focused on further increasing market access and exports; strengthening rules-
based investment; reducing non-tariff and regulatory barriers; and enhancing cooperation on trade
issues of global concern. Although U.S. and EU officials had hoped to complete the T-TIP
negotiations in 2016, they have been inactive under the Trump Administration.

Historically, U.S.-EU cooperation has been a driving force behind efforts to liberalize world trade
and ensure the stability of internal financial markets. Many also view U.S.-EU economic
cooperation as crucial to managing emerging economies such as China, India, and Brazil in the
years ahead. Many EU officials are anxious about U.S. trade policy under the Trump
Administration. President Trump has repeatedly raised concerns about the U.S. goods deficit with
the EU ($153 billion in 2017). EU officials content that despite the goods deficit, U.S.-EU
economic relations are largely in balance when the U.S. services surplus with the EU ($51 billion
in 2017) and higher profits earned by the U.S. companies doing businesses in Europe are taken
into consideration.

On July 25, 2018, European Commission President Juncker and President Trump reached an
initial agreement aimed at de-escalating U.S.-EU tensions on trade and tariffs. The EU interprets
the Trump-Juncker deal to mean that the U.S. will not impose new tariffs under Section 232
against European automobiles or auto parts while the U.S.-EU talks on trade and tariff issues are
under way. Although the Trump-Juncker agreement appears to have decreased U.S.-EU trade
tensions to some degree, many in the EU remain cautious about whether the deal will hold.

52
 PART III.
HUMAN RIGHTS AND
INTERNATIONAL LAW

53
HUMAN RIGHTS: DEFINITION AND
CLASSIFICATION
WHAT ARE HUMAN RIGHTS?

Human rights are the basic rights and freedoms that belong to every person in the world, from
birth until death. They can never be taken away, although they can sometimes be restricted – for
example if a person breaks the law, or in the interests of national security. These basic rights are
based on values like dignity, fairness, equality, respect and independence. Universal human rights
are often expressed and guaranteed by law, in the forms of treaties, customary international law,
general principles and other sources of international law.

CHARACTERISTICS AND NATURE OF HUMAN RIGHTS

1. Universal

Human rights are not a monopoly of any privileged class of people. The values such as dignity
and equality, which form the basis of these rights, are inherent in human nature. The principle of
universality of human rights, as first emphasized in the Universal Declaration on Human Rights
in 1948, is the cornerstone of international human rights law. It is the duty of States to promote
and protect all human rights and fundamental freedoms, regardless of their political, economic
and cultural systems.
2. Human Rights are essential and necessary

Without these rights, the moral, physical, social and spiritual welfare of an individual is
impossible. They are also essential as they provide suitable conditions for material and moral
upliftment of the people.
3. Human Rights are in connection with human dignity

To treat another individual with dignity regardless of the fact that the person is a male or female,
rich or poor, etc. is concerned with human dignity.
4. Interdependent and indivisible

All human rights are indivisible, interrelated and interconnected, whether they are civil and
political rights (freedom of expression); or economic, social and cultural rights (right to work); or
collective rights (right to development). The improvement of one right facilitates advancement of
the others. Likewise, the deprivation of one right adversely affects the others.
5. Equal and non-discriminatory

Non-discrimination is a cross-cutting principle in International Human Rights law. It prohibits

discrimination on the basis of a list of non-exhaustive categories such as sex, race, colour, and so
on. It is complemented by the principle of equality.
6. Irrevocable

They cannot be taken away by any power or authority because these rights originate with the
social nature of man in the society and they belong to a person simply for being human.

54
7. Human Rights are necessary for the fulfilment of purpose of life

Human life has a purpose. The term “human right” is applied to those conditions which are
essential for the fulfilment of this purpose.
8. Human Rights are never absolute

Humans are social animals who live in civic societies, which always puts a certain restrictions on
the enjoyment of their rights and freedoms. Human rights must be contributory to the common
good and recognized and guaranteed by the State, through its laws to the individuals.
9. Human Rights are dynamic

Human rights go on expanding with socio-eco-cultural and political developments within the
state. Judges have to interpret laws in such ways as are in tune with the changed social values.
10. Rights as limits to state power

Human rights entail both rights and obligations. States assume obligations and duties under
International Law to respect, to protect and to fulfil human rights. The obligation to respect means
that the state must refrain from interfering with human rights. The obligation to protect requires
states to defend individuals and groups against human rights abuse. The obligation to fulfil means
that states must take positive action of facilitate the enjoyment of basic human rights.

CLASSIFICATION OF HUMAN RIGHTS

Classification according to the spheres of life activity

Personal (civil) rights and freedoms: they aim to protect the individual from the power of the
State. The most important rights of this group include: the right to personal security; freedom of
slavery, violence, and imprisonment; freedom of conscience and religion; freedom of marriage;
and others.

Political rights and freedoms: express the possibility of participation of a person in a society’s
political life. Political rights are aimed at strengthening the connection between the citizen and
the State. They include the right to access public service, the right to participation in political
movements and parties, the right to gather, and freedom of meetings, manifestations, petitions, as
well as others.

Social and economic rights and freedoms: are aimed at the provision of welfare and the quality
of a person’s life. These rights give a person the possibility of self-development. To this group
belongs the right to work and the right to rest; the right to social security and health protection;
and many others.

Cultural rights and freedoms: guarantee spiritual and cultural development of a human. The
cultural rights include the right of each person to participate in cultural life; the right to social
values; the right to free use of archival and library stocks; the right to use one’s native language;
the right to development of culture in accordance with one’s national and ethnical identity, etc.
Classification according to the time of appearance

The rights of the first generation (end of the 18th century) are the civil and political rights. They
were first referred at the Declaration of Rights of Virginia (1776), the American Bill of Rights
(1789-1791) and the French Declaration of Rights of Human and Citizen (1789).

The second generation of human rights made its statement during the process of fighting against
economic and social inequalities during the end of the 19th century and beginning of the 20th

55
century. They are the economic, social and cultural rights, which were reflected for the first time
at official level in the Constitution of the United Mexican States (1917), the German Weimar
Constitution (1919) and the Constitution of the Spanish Republic (1931).

The third generation of rights started to form in the second half of the 20th century. Most often,
these rights are called the rights of solidarity. They reflect the idea of fraternity of the world’s
nations because they are collective rights. These include the right to peace; the right to
disarmament; the right to development; the right to be free from genocide, apartheid; and many
others. Besides this, they include the right of certain groups: children, aged people, women …

56
HUMAN RIGHTS LAW
CHAPTER ONE: Introduction to Human Rights Law
1.1. Nature and Definition of Human Rights

Human rights are a sort of inalienable moral entitlement attached to all persons as a consequence
of being human. The term came into wide use after World War II, replacing the earlier phrase
“natural rights”, which had been associated with the GrecoRoman concept of Natural Law.
Human rights differ from other rights in two aspects:

• Firstly, they are characterised for being inherent in all human beings by virtue of their
humanity alone, inalienable and equally applicable to all.
• Secondly, the main duties deriving from human rights fall on states and their authorities
or agents, not on individuals. Therefore, human rights must be protected by law (“the rule
of law”). Any disputes about these rights should be submitted for adjudication through a
competent, impartial and independent tribunal.

The idea of basic rights originated from the need to protect the individual against the arbitrary use
of state power. Human rights in this category are referred to as “fundamental freedoms”. As
human rights are viewed as a precondition for leading a dignified human existence, they serve as
a guide and a touchstone for legislation.

The specific nature of HR, as an essential precondition for human development, implies that they
can have a bearing on relations both between the individual and the state, and between individuals
themselves. The government not only has an obligation to refrain from violating human rights,
but also has a duty to protect the individual from infringements by other individuals.

1.2. Historical Development

Pre-World War II Developments

The origins of human rights may be found both in Greek philosophy and the various world
religions. In the Age of Enlightment (18th century) the concept of human rights emerged as an
explicit category. Man/woman came to be seen as an autonomous individual with certain rights
that could be invoked against a government and should be safeguard by it.

Before this period, several documents had been drawn up constituting important steps towards
the idea of human rights (the Magna Charta Libertatum of 1215, the Union of Utrecht of 1579 or
the English Bill of Rights of 1689). All these documents specified rights, which could be claimed
in the light of particular circumstances or conferred upon individuals or groups by virtue of their
rank or status.

In the centuries after the Middle Ages, the concept of liberty became gradually separated from
status and came to be seen not as a privilege but as a right of all human beings. Spanish theologists
Francisco de Vitoria or Bartolome de las Casas played a prominent role in this context. These two
men defended the personal rights of the indigenous people inhabiting the territories colonised by
the Spanish Crown.

The Enlightment was decisive in the development of human rights concepts. Locke, for instance,
developed a comprehensive concept of natural rights. Jean-Jacques Rousseau elaborated the
concept under which the sovereign derived his powers and the citizens their rights from a social
contract.

57
The people of the British colonies in North America took the human rights theories to heart. The
American Declaration of Independence of 4 July 1776 was based on the assumption that all human
beings are equal. These ideas were also reflected in the Bill of Rights.

The need for international standards on human rights was first felt at the end of the 19th century,
when the industrial countries began to introduce labour legislation. It was a result of this that the
first conventions were formulated in which states committed themselves vis-à-vis other states in
regard to their own citizens. The Berlin Convention of 1906, which prohibited night-shift work
by women can be seen as the first multilateral convention meant to safeguard social rights.
Remarkable as it seems, therefore, while the classic human rights have been acknowledged long
before social rights, the latter were first embodied in international regulations.
Post-World War II Developments

The atrocities of World War II put an end to the traditional view that states have full liberty to
decide the treatment of their own citizens. The signing of the Charter of the United Nations (UN)
on 26 June 1945 brought human rights within the sphere of international law. Less than two years
later, the UN Commission on Human Rights (UNCHR) submitted a draft called the Universal
Declaration of Human Rights (UDHR). The UN General Assembly (UNGA) adopted the
Declaration in Paris on 10 December 1948.

During the 1950s and 1960s, more and more countries joined the UN, and in doing so subscribed
to the principles and ideals laid down in the UDHR. Since the 1950s, the UDHR has been backed
up by a large number of international conventions, such as the International Covenant on Civil
and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural
Rights (ICESCR). These two Covenants, together with the UDHR, form the International Bill of
Human Rights.

1.3. Theories of Human Rights: Justification

The “justification of a right” refers to how we argue for its existence, what philosophical
assumptions and theories we use to defend and define the right. Politicians, states and people do
not necessarily use any explicit philosophical theory to support their views on certain laws or
basic rights, but they inevitably have some type of theory. The nature of public policy is
compromise and mish-mash. That is why usually policies reflect a mixed of different theories.

1.4.Classification of Human Rights

The term “human rights” is used to denote broad spectrum of rights ranging from the right to life
to the right to a cultural identity. Although human rights have been classified in a number of
different manners, it is important to note that international law stresses that all of them are
universal, indivisible and interrelated.
i. CLASSIC AND SOCIAL RIGHTS

Classic rights entail an obligation for the state to refrain from certain actions (negative obligation),
while social rights oblige it to provide certain guarantees (positive obligation).

The evolution of international law, however, has led to this distinction becoming increasingly
awkward. Classic rights, such as civil and political rights, often require considerable investment
by the state. Hence, the right to a fair trial, for instance, requires well-trained judges, prosecutors,
lawyers and police officers, as well as administrative support. On the other hand, most “social”
rights contain elements that require the state to abstain from interfering with the individual’s
exercise of the right. As several commentators note, the right to food includes the right for
everyone to procure their own food supply without interference.

58
ii. CIVIL, POLITICAL ECONOMIC, SOCIAL AND CULTURAL RIGHTS

Civil Rights

The term “civil rights” is often used with reference to the rights set out in the first 18 articles of
the UDHR. From this group, a further set of “physical integrity rights” has been identified, which
concern the right to life, liberty and security of the person and the protection from physical
violence, the interference with one’s privacy and right to ownership, restriction of one’s freedom
of movement, and the freedom of thought, conscience and religion. Also, the right to equal
treatment and protection in law certainly qualifies as a civil right. Another group of civil rights is
referred under the collective term “due process”. These pertain, among other things, to the right
to a public hearing by an independent and impartial tribunal and the “presumption of innocence”.

Political rights

In general, political rights are those set out in Articles 19 to 21 of the UDHR. They include
freedom of expression, freedom of association and assembly, the right to take part in the
government of one’s country, and the right to vote and stand for election at genuine periodic
elections held by secret ballot.

Economic and social rights

The economic and social rights are listed in the Articles 22 to 26 of the UDHR. These rights
provide the conditions necessary for prosperity and wellbeing. Economic rights refer to, for
example, to the right to property or the right to work. Social rights are those rights necessary for
an adequate standard of living, including rights to health, shelter, food, social care, and education.

Cultural rights

The UDHR lists cultural rights in Articles 27 and 28. These include all rights that mean free
participation in the cultural life of the community.

Traditionally, it has been argued that there are fundamental differences between economic, social
and cultural rights, and civil and political rights. According to this view, civil and political rights
are considered to be expressed in a very precise language, imposing negative obligations which
do not require resources for their implementation. On the other hand, economic, social and
cultural rights are considered to be expressed in vague terms, imposing only positive obligations
conditional on the existence of resources and therefore involving a progressive realisation. As a
consequence of these differences, it has been argued that only civil and political rights can be
adjudicated by judicial or similar bodies, while economic, social and cultural rights are “by their
nature” non-justiciable.
iii. FUNDAMENTAL AND BASIC RIGHTS

Another approach is to distinguish a number of “basic rights”, which should be given absolute
priority in national and international policy. These include all the rights which concern people’s
primary material and non-material needs (right to life, to a minimum level of security, freedom
of slavery…). If these are not provided, no human being can lead a dignified existence.

Mention should also be made of so-called “participation rights”. For instance, the right to
participate in public life through elections or to take part in cultural life.

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iv. OTHER CLASSIFICATIONS

Freedoms

Preconditions for a dignified human life have often been described in terms of freedoms. United
States President, Franklin D. Roosevelt, summarised these preconditions in his famous “Four
Freedoms Speech”:

• Freedom of speech and expression

• Freedom of belief
• Freedom from want
• Freedom from fear

Civil liberties

Civil liberties refer primarily to those human rights which are laid down in the United States
Constitution: freedom of religion, freedom of press, freedom pf expression, freedom of
association and assembly, protection against interference with one’s privacy, protection against
torture and the right to a fair trial. This classification does not correspond to the distinction
between civil and political rights.

Individual and collective rights

Although the fundamental purpose of human rights is the protection and development of the
individual (individual rights), some of these rights are exercised by people in groups (collective
rights). One must make a distinction between two types of rights: individual rights employed in
association with others, and the rights of a collective. The most notable example of a collective
human right is the right to self-determination, which is regarded as being vested in people rather
than in individuals. It is generally accepted that collective rights may not infringe on universally
accepted individual rights.

First, second and third generation rights

First generation rights are related to liberty and refer fundamentally to civil and political rights.
The second generation rights are related to equality, including economic, social and cultural
rights. The third generation or “solidarity rights” cover group and collective rights, such as the
right to development, the right to peace and the right to a clean environment. So far, the only one
of these rights that has been given an official human right status is the right to development. While
the classification of rights into “generations” has the virtue of incorporating communal and
collective rights, thereby overcoming the individualist moral theory in which human rights are
grounded, it has been criticised for not being historically accurate.

1.5. Sources of Human Rights Law

Since time immemorial, states and peoples have entered into formal relationships with each other.
Over the ages, these relationships have made up modern “international law”. Like domestic law,
international law covers a wide range of subjects as security, diplomatic relations, trade, culture
and huma rights, but it differs from domestic legal systems in a number of important ways. In
international law there is no single legislature, nor there is a single enforcing institution.
Consequently, it can only be established with the consent of states and is dependent on their self-
enforcement.

This consent, from which the rules of international law are derived, may be expressed in various
ways. The obvious mode is an explicit treaty (“treaty law”), imposing obligations on the states
party. Besides treaties, other documents and agreements serve as guidelines for the behaviour of

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states. The internationally accepted classification of sources of international law is formulated in
Article 38 of the Statute of the International Court of Justice.
A. INTERNATIONAL CONVENTIONS

International treaties are contracts signed between states. They are legally binding and impose
mutual obligations on the states that are party about the manner in which they treat all individuals
within their jurisdiction. Human rights treaties have been adopted at the universal level (within
the framework of the United Nation as well as under regional organizations). These organizations
have greatly contributed to the codification of a comprehensive and consistent body of human
rights law.

Universal Conventions for the Protection of Human Rights

The UDHR, adopted by a resolution of the UNGA, although not a treaty, is the earliest
comprehensive human rights instrument enforced by the international community.

The “International Bill of Human Rights” consists of the UDHR, the ICESCR, and the ICCPR
and its two Optional Protocols. The International Bill of Rights is the basis for numerous
conventions and national constitutions. Besides it, a number of other instruments have adopted
under the auspices of the UN and other international agencies. They may be divided into three
groups:

• Conventions elaborating on certain rights:

o The Convention on the Prevention and Punishment of the Crime and Genocide
(1948)
o The Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (1984)
• Conventions dealing with certain categories of persons who may need special protection:
o The Convention relating to the Status of Refugees (1951)
o The Convention on the Rights of the Child (1989)
• Conventions seeking to eliminate discrimination:
o ILO 111 concerning Discrimination in respect of Employment and Occupation
(1958)
o UNESCO Convention Against Discrimination in Education (1960)
o The Convention on the Elimination of All Forms of Discrimination Against
Women (1979)

Regional Conventions for the Protection of Human Rights

The Council of Europe adopted in 1950 the European Convention for the Protection of Human
Rights and Fundamental Freedoms, supplemented by the European Social Charter in 1961.

The American Convention on Human Rights was adopted in 1969, under the auspices of the
Organization of American States.

In 1981, the Organization of African Unity, now the African Union, adopted the African Charter
on Human and People’s Rights.
B. INTERNATIONAL CUSTOM

Customary international law plays a crucial role in international human rights law. In order to
become international customary law, the “general practice” needs to represent a broad consensus
in terms of content and applicability. Customary law is binding on all states (except those that
may have objected to it during its formation), whether or not they have ratified any relevant treaty.

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One of the important features of customary international law is that customary law may, under
certain circumstances, lead to universal jurisdiction. Many scholars argue that some standards laid
down in the UDHR have become part of customary international law as a result of subsequent
practice; therefore, they would be binding upon all states. Within the realm of human rights law,
the distinction between concepts of customary law, treaty law, and general principles of law are
often unclear.
C. GENERAL PRINCIPLES OF LAW
In the application of both national and international law, general or guiding principles are used.
In international law, they have been defined as “logical propositions resulting from judicial
reasoning on the basis of existing pieces of international law”. General principles of law play two
important roles: on the one hand, they provide guidelines for judges, in particular, in deciding in
individual cases; on the other hand, they limit the discretionary power of judges and of members
of the executive in their decisions in individual cases.
D. SUBSIDIARY MEANS FOR THE DETERMINATION OF RULES OF LAW
According to Article 38 of the Statute of the International Court of Justice, judicial decisions are
“subsidiary means for the determination of rules of law”. Therefore, they are not, strictly
speaking, formal sources, but they are regarded as evidence of the state of law. The writings of
scholars contribute to the development and analysis of human rights law.
CHAPTER TWO: Human Rights Systems
(Substantive Rights, Institutions and Procedures)
2.1.The Universal System: the UN System
2.1.1.The Legal Framework
A. The UN Charter
Adopted on 26 June 1945, the United Nations Charter was designed to establish the foundations
of a new world order. Its primary aim was to save succeeding generation from the scourge of war
and to ensure the maintenance of international peace and security.
As reflected in the preamble to the Charter, the UN were guided, among others, by the motive to
reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the
equal rights of men and women and of nations large and small. More specific rules of conduct
aimed at the accomplishment of these tasks are contained in three sets of provisions of the Charter:
on international economic and social cooperation, on the international trusteeship system, and on
the functions and powers of the UN organs in this sphere.
It may be concluded that both the number and the scope of human rights provisions in the UN
Charter is quite impressive in itself. This becomes particularly evident when the UN Charter is
compared with its predecessor, the Covenant of the League of Nations, which was entirely silent
on human rights issues.
B. The UDHR
The adoption of a declaration of the human rights was envisaged as the very first item on the UN
agenda within the programme of the International Bill of Human Rights. The task of preparing a
declaration was given to the Commission on Human Rights which started its work in 1947. In
1948 the Commission adopted the draft Declaration and submitted it to the General Assembly.
After lengthy discussions, the Declaration was adopted on 10 December 1948 with 48 votes in
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favour, none against and 8 abstentions. Altogether the Declaration was eventually adopted within
two years.

The UDHR contained five parts: Part A, the text of the Declaration as such; Part B, Right of
Petition; Part C, Fate of Minorities; Part D, Publicity to be Given to the UDHR; and Part E,
preparation of a Draft Covenant on HR and Draft Measures of Implementation. Contained in part
A, the Declaration is made up of the Preamble and 30 articles.

The Preamble to the Declaration is significant for several reasons. It refers to the concepts of
inherent human dignity and the inalienable nature of human rights as the philosophical sources of
the Declaration and inspirations for further development of human rights. It also reflects its
pre1945 roots by pointing out that disregard and contempt for human rights have resulted in
barbarous acts which have outraged the conscience of mankind. These significant statements are
accompanied by a unique formulation: human rights should be protected by the rule of law.

The operative part of the Declaration can be divided into two groups of provisions. The first group
contains all the fundamental civil and political rights and freedoms. Then, but less extensive, is
the catalogue of economic, social and cultural rights.

All in all, the adoption and content of the UDHR has been a great success. The Celebration
constitutes the first internationally adopted catalogue, and in this sense, definition of human
rights. It is also one of the best legal instruments on human rights ever adopted.

C. The Covenants on Civil and Political and Economic, Social and Cultural Rights

Today, the International Bill of Rights is regarded as consisting of the UDHR, the ICESCR, and
the ICCPR. The Commission of Human Rights proposed in 1950 to keep all rights in one
convention. However, USA and some other western countries argued against this proposal and in
1951 they succeeded in persuading the General Assembly not to follow the recommendations of
the Commission. The arguments put forward by USA and others were centered around asserted
differences in regard to the possibility for the individual to legally enforce his rights and the
different kind of monitoring mechanisms the two sets of rights would require.

In hindsight one question whether this decision has well served the cause of human rights. Today,
most proponents of human rights find it essential to emphasize the interrelationship and mutually
reinforcing nature of the various human rights. It should also be noted that although the rights
dealt with in the covenants are contained in two different documents, it has been clarified in UN
resolutions and documents that they belong together and should be seen as a whole.

• The International Covenant on Civil and Political Rights (ICCPR)

The ICCPR contains 53 articles, of which 27 are of normative character. Pursuant Article
28, a Human Rights Committee is established to consider the reports that all states parties
are under a duty to submit regularly, and to deal with the individual complaints that may
come before it.

• The International Covenant of Economic, Social and Cultural Rights (ICESCR)

The ICESCR consists of 31 articles, of which the first 15 are of normative character and
the last 16 of a more procedural nature. It sets out many of the fundamentals for the well-
being and prosperity of an individual.
The international community has, in the last years, pointed the need to give increased
attention to these rights. The denial of these are often the first steps towards alienation
and polarization in societies, which in turn lead to increased risks for violent conflict and
further oppression. The responsibility for the supervision of the Covenant is entrusted to
the Economic, Social and Cultural Committee.

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D. The International Covenant on the Elimination of All Forms of Racial Discrimination

In 1969, the International Covenant on the Elimination of All Forms of Racial Discrimination
(CERD) entered into force after having been adopted in 1965 by the General Assembly. The
Convention contains 25 articles, of which 7 articles are of normative character. A broad definition
of racial discrimination based on the grounds or race, colour, descent, or national or ethnic origin.
States are under the obligation to criminalize dissemination of ideas based on racial superiority
and hatred, and participation in racial organizations or activities.

The international monitoring procedures are dealt with in the second part of the Convention
(Articles 8 to 16). A Committee on the CERD examines and comments on reports submitted by
the states party.

E. The Convention on the Elimination of Discrimination Against Women

In 1967, the General Assembly adopted the Convention on the Elimination of Discrimination
Against Women (CEDAW). It consists of 30 articles, of which the first 16 are of normative
character. The definition of discrimination against women, contained in the first article, is more
detailed than in many other discrimination clauses. The Convention recognizes that, even if
women’s equality is guaranteed by law, there is still a necessity to take measures to remove the
social, cultural and traditional patterns which perpetuate gender-role stereotypes. The issues of
gender-based violence were not specifically addressed in the Convention. The work of committee
is this area was further reinforced when, in 1993, the General Assembly adopted the Declaration
on the Elimination of Violence Against Women.

The Convention also established a Committee on the Elimination of Discrimination Against

Women.

F. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment

Although the eradication of torture has long been a goal proclaimed by the international
community, torture is still practiced in many states. On 10 December 1984, a major step was taken
when the General Assembly adopted the Convention Against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment, which entered into force in 1987. The Convention
provides for a definition of “torture”, which includes intentional acts for certain enumerated
reasons which causes severe pain or suffering of physical or mental nature for a person. The
Convention also established a Committee against torture.

G. The Convention of the Rights of the Child

The welfare and rights of children have been subjected to the UN since its creation. One of the
first decisions of the General Assembly in 1946 was to create the United Nations Fund for
Children (UNICEF), an organization which covers development issues and the welfare of
children. Now a day, UNICEF regards the promotion and protection of the rights set out in the
1989 Convention on the Rights of the Child as a general framework and mandate for all its
activities. The Convention consists of 54 articles, of which the first 42 are of normative character.

The Convention is all encompassing and sets up a holistic approach where civil, political,
economic, social and cultural rights are included, all being of importance for safeguarding the
dignity of the child and a harmonious development of his personality. Four general principles
have guided the authors of the Convention. Firstly, the principle of the full and equal value of
children to enjoy their rights. Secondly, the principle that the best interest of the child shall be the
primarily consideration. Thirdly, the principle of the right not only to life, but also to survival and

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development. Fourthly, the principle that children are able to form their own views and express
them. As with the other conventions, it established a Committee on the Rights of the Child.
2.1.2. Reservations and Declarations

When becoming party to a treaty, a state may, by formulating reservations, declarations and
interpretive statements, seek to limit its domestic application beyond what is permissible under
the limitations referred above.

A. Reservation

A reservation is a statement made by a state by which it purports to exclude or alter the legal
effect of certain provisions of a treaty in their application to that state, unless:

• The reservation is prohibited by the treaty

• The treaty provides that only specified reservations, which do not include the one in
question, may be made

The effectiveness of a reservation is dependent on its acceptance by other state parties. The UN
Commission on Human Rights has stated that reservations should be formulated “as precisely and
narrowly as possible”.

B. Declarations

Some conventions allow or even require states parties to make declarations concerning the extent
to which they are bound by a certain provision. Such statements may relate to the competence of
a supervisory mechanism. However, a state party may also make interpretative declarations,
otherwise known as understandings, whereby it does not intend to modify or limit the provisions
of the treaty but indicates merely how it interprets a particular article. One of the major differences
between a “reservation” and an “interpretative declaration” lies in the author’s purpose in making
that statement. While a reservation seeks to exclude or modify the legal effect of the treaty’s
provisions in their application to the state, the interpretative declaration seeks only to clarify the
meaning or scope of the treaty provision. Therefore, it is the intention of the state rather than the
form or the name or tittle which matters.
2.1.3. Restrictions and Derogations

A. Restrictions

Conventions may contain a number of restrictions or limitations to the rights they stipulate. It is
generally accepted that only few rights and freedoms are “absolute” (freedom of torture and
slavery). At the same time, such restrictions must be used only to establish the proper limits of
the protected right and not as an excuse for undermining the right itself or destroying it altogether.
The most important restriction is the limitation of one person’s right when interfering with other
people’s rights. However, apart from this general provision most human rights treaties contain
specific provisions in various individual articles.

When a right is subject to a limitation, no other limitations are permitted, and any limitation must
comply with the following minimum requirements:

• must not be interpreted so as to jeopardise the essence of the right

• must be interpreted strictly in the light and context of the particular right 80
• must be prescribed by law and be compatible with the object and purpose of the
instrument
• must be justified by the protection of a strictly limited set of welldefined public interests:
national security, public safety…

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Most of these requirements have been developed by academia and the jurisprudence of major
human rights bodies.

B. Derogations

The rationale for derogation provisions is to strike a balance between the sovereign right of a
government to maintain peace and order during public emergencies, and the protection of the
rights of the individual from abuse by the state. Thus, the state is allowed to suspend the exercise
of some rights when necessary to deal with an emergency situation.

Such derogations have to meet several criteria:

• There must be a war or a general state of emergency threatening the life of the nation
• The state of emergency must be officially proclaimed
• Measures may not go beyond the extent strictly required by the situation
• Measures may not be inconsistent with other obligations under international law
• Measures may not be discriminatory

A state availing itself of the right of derogation must immediately provide justification for its
decision to proclaim a state of emergency. Moreover, as stipulated in a number of international
conventions, there are certain rights which cannot be derogated under any circumstances: the right
to life; freedom from slavery, torture and imprisonment of debt; the principle to legality in the
field of criminal law; freedom of thought, conscience and religion; and the right to juridical
personality.
2.1.4. Institutions and Procedures

The numerous human rights conventions have led to the creation of a wide range of mechanisms
for monitoring compliance with the standards agreed upon. There are two distinctive types of
supervisory mechanisms:

a) Treaty-based mechanism: supervisory mechanisms enshrined in legally binding human

rights instruments or conventions. E.g.: the Human Rights Committee and the Committee
on the Rights of the Child.
b) Non-treaty-based mechanisms: supervisory mechanisms not based on legally binding
human rights treaty obligations. Generally, this type of mechanism is based on the
constitution or charter of an intergovernmental human rights forum. E.g.: European
Commission against Racism and Intolerance under the Council of Europe.

A. Treaty based mechanisms

The six most well-known human rights treaties are the two Covenants (ICCPR and ICESCR),
CERD, CEDAW, CAT, CRC and CMW. Each of these conventions has a supervisory body.
These bodies consist of a number of experts of a high moral character and recognised competence
in the field of human rights. They act in their personal capacity, with no instructions from their
respective governments.

The treaty-based procedures can be divided into four main groups:

i. Reporting procedures

Most human rights treaties include a system of periodic reporting. States parties to them are
obliged to report periodically to a supervisory body on the implementation at the domestic level
of the treaty in question. The quality of the report may vary from one state to the other. Some of
them are reliable and reflect serious efforts to comply with the reporting requirements, while
others lack credibility. In addition to the government report, the treaty bodies receive information

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a country’s human rights situation from other sources, including non-governmental organisations,
UN agencies, academic institutions, and the press. In the light of all the information available, the
Committees examine the reports together with government representatives. Based on this
dialogue, the Committees decide on their concerns and recommendations to the state concerned,
referred to as “concluding observations”.

ii. Interstate complaint procedure

Some human rights instruments allow states parties to initiate a procedure against another state
party, which is considered not be fulfilling its obligations under the instrument.

In practice, interstate complaint is hardly used. Interstate relationships are delicate and interstate
mechanisms may not be ideal procedures as states bringing complaints may elicit reprisals.

iii. Individual complaint procedure

It seems reasonable that individuals should be enabled to initiate proceedings to protect their
rights. In order for an individual to bring a case/communication/petition under a human rights
convention, the following requirements have to be met:

a) the alleged violating state must have ratified the convention invoked by the individual
b) the rights allegedly violated must be covered by the convention concerned; and
c) proceedings before the relevant body may only be initiated after all domestic remedies
have been exhausted.

In general terms, the system works as follows. Once a complaint is submitted, the case is
registered and transmitted to the state party concerned to give it an opportunity to comment. Once
the state replies, the alleged victim is offered an opportunity to comment. At this point, the case
is ready for a decision by the relevant committee. If the state party fails to respond to the complaint
the committee may take a decision on the case on the basis of the original complaint. There is no
appeal against committee’s decisions.

iv. Inquires and other procedures

The group of supervisory mechanisms now discussed includes all procedures that do not fall under
those mentioned above. Most involve inquiries, but other may entail initiatives aimed at
preventing violations or promoting compliance with specific human rights. Recently, however,
several supervisory mechanisms have been established whereby an independent person or group
may rise, on the person’s or group’s own initiative, issues of non-compliance with human rights.
It may also initiate a visit at the place to gather information or do so as part of a regular visit
programme.

B. Non-treaty based mechanisms

i. International Court of Justice (ICJ)

The ICJ is the principal judicial organ of the UN. Its statute is an integral part of the Charter of
the UN and, consequently, all member states of the UN are ipso facto parties to the statue of the
court. The jurisdiction of the court concerns: a) the interpretation of a treaty; b) any fact which, if
established, would constitute a breach of an international obligation; and c) the nature or extent
of the reparation to be made for the breach of an international obligation.

The General Assembly, the Security Council or a number of human rights instruments may
request the court to give an advisory opinion on any legal question. However, neither the ICCPR
nor the ICESCR specifically provides for adjudication by the court.

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ii. Security Council

The Security Council is primary responsible for the maintenance of international peace and
security. It may investigate any dispute, or any situation which might lead to international friction.
When the Council determines the existence of any threat to the peace, it may make
recommendations, or decide what measures shall be taken in order to restore peace and security,
which might include complete or partial interruption of economic relations and of rail, sea, air
postal, telegraphic, radio, and other means of communication, and the severance of diplomatic
relations.

iii. United Nations General Assembly (UNGA)

One of the functions of the UNGA is to initiate studies and make recommendations for the
purpose of “assisting in the realization of human rights and fundamental freedoms for all without
distinction as to race, languages or religion”.

The GA has established a number of subsidiary organs which are concerned with human rights.
These include:

a) The International Law Commission

b) The Office of the UN High Commissioner for Refugees
c) The Special Committee on Declaration
d) Committee on the Exercise of the Inalienable Rights of the Palestinian People

iv. Economic and Social Council (ECOSOC)

The ECOSOC is authorized by the Charter of the UN to make recommendations for the purpose
of promoting respect for human rights and fundamental freedoms. It is also authorized to prepare
draft conventions for submission to the GA, to call international conferences, and to obtain report
from member states. ECOSOC may also furnish information to the Security Council. On their
first decisions was to establish the Commission on Human Rights and the Commission on the
Status of Women.

v. UN Human Rights Council

The Commission on Human Rights is the principal functional organ of the UN concerned with
human rights. It is the body that drafted the UDHR, the ICCPR, the ICESCR, and all of the
principal human rights instruments.

vi. International Labor Organization (ILO)

The ILO has long been concerned with labor rights. It has developed several complicated
procedures for monitoring state behaviour in this particular area. It is concerned with economic
and social rights, such as the right to work, the right to just and favorable conditions of work, the
right to form and join trade unions, the right to social security, and the right to an adequate
standard of living. It is also concerned with civil and political rights, such as the freedom of
expression, the freedom of association, and the freedom of peaceful assembly.

The ILO supervises the application of the standards it has laid down through tripartite-composed
or representatives of governments, workers and employers-bodies.

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2.2.Regional Human Rights Systems
2.2.1.The European Human Rights System

In May 1948, 800 members of the various sectors of the European Community met in Hague to
demonstrate their support for the cause of Europeans Unity. The immediate consequence of the
Hague Congress was the creation, one year later, of the Council of Europe. It comprises two
principal organs: a Committee of Ministers and a Parliamentary Assembly. The objectives of the
Council, and therefore the obligations incumbent on its members, were described as the
consolidation of pluralist democracy, respect for human rights, and the assertion of the rule of
law.
2.2.2. The Inter-American Human Rights System

The Charter of the Organization of American States (OAS) was signed on 30 April 1948 at the
Ninth International Conference of American States convened in Bogota. The Charter entered into
force on 13 December 1951.

In 1959, in Santiago, the fifth meeting of consultation of ministers of foreign affairs adopted a
resolution creating the Inter-American Commission on Human Rights. The states parties to the
ACHR take “to respect” and “to ensure” the “free and full exercise” of these rights “to all person
subject to their jurisdiction”. These obligations are monitored by the Inter-American Court of
Human Rights.
2.2.3. The African Human Rights System

The other regional human rights instrument is the African Charter on Human and People’s Rights
(ACHPR). On initiative of President Senghor of Senegal, he decided to convene a meeting of
“highly qualified experts” to prepare a preliminary draft of a convention that would provide for
the promotion and protection of human rights in Africa. The ACHPR began functioning on 2
November 1987. In 1998, it established an African Court on Human and People’s Rights.
2.2.4. The Arab and Asian Human Rights System

The Arab states have not yet created a regional human right regime, but some steps have been
taken in that direction. On September 15, 1994, the League of Arab States approved an Arab
Charter on Human Rights building on earlier texts, but it has not yet entered into force. It requires
acceptance by seven states, and as of January 1, 1998, only Egypt and Iraq had ratified it.

In Asia, despite efforts by NGOs and the UN, governments in the region have been unwilling in
general to ratify global human rights instruments or create a regional human rights system. The
vastness of geographical scope of the region, the vast differences in culture, language, political
ideology and economic development among nations, the recent economic crisis in Asia, coupled
with a lack of a regional organization, constitute serious hurdles to the creation of an Asian-Pacific
regional system.

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THE NATURE OF INTERNATIONAL LAW
DIFFERENCES BETWEEN INTERNATIONAL AND DOMESTIC LAW

International law is concerned with the rights and duties of States in their relations with each other
and with international organizations. Meanwhile, domestic law is the law within the State,
concerned with the rights and duties of the State’s citizens.

Two central differences:

• The law-making process

There is no supreme law-making body in international law. Treaties are negotiated
between states on an ad hoc basis and only bind states which are parties to a treaty.

• Enforcement
International law has no international police force to oversee obedience to the
international legal standards to which states agree on. However, there are an increasing
number of specialized courts, tribunals and treaty monitoring bodies as well as an
International Court of Justice. In some instances, the Security Council can authorize the
use of coercive economic sanctions or even armed force.
In general, international law is enforced through methods such as national
implementation, diplomatic negotiation or public pressure, mediation, conciliation,
arbitration and judicial settlement.

WHY DO STATES OBEY INTERNATIONAL LAW?

Even though international law does not have the coercive enforcement processes available to
domestic law, it is in the best interests of most states to ensure stability and predictability in their
relations with other states. By complying with their obligations, they help ensure that other states
comply with theirs.

In a field like human rights, states may uphold international law principles because they recognize
the need to protect common and universal human values.

HOW DO INTERNATIONAL AND DOMESTIC LAW INTERACT?

The theories of monism and dualism are two main theories that explain the relationship between
international and domestic law.
1. Monism

In this theory, all domestic law is part of a universal legal order and regulates the conduct of the
individual state. Since all law is part of the same legal order, international law is automatically
incorporated into the domestic legal order. Some monist theorists consider that international law
prevails over domestic law if there are any conflict.

Example: Spanish Constitution -> 10.2. Provisions relating to the fundamental rights and liberties
recognised by the Constitution shall be construed in conformity with the Universal Declaration
of Human Rights and international treaties and agreements thereon ratified by Spain.
2. Dualism

This theory holds that international law and domestic law are separate bodies of law, operating
independently of each other. The main differences between them are thought to be the sources of
law, its subjects, and the subject matter.

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 • International law derives from the collective will of states, its subjects are the states
themselves, and its subjects matter is the relations between states.
• Domestic law derives from the will of the sovereign state, its subjects are the individuals
within the state, and its subject matter is the relations of individuals with each other and
with the government.
3. Harmonization

Alternative theories have developed which regard international law as having a harmonization
role. If there is a conflict, domestic law is applied within the domestic legal system, leaving the
state responsible at the international level for any breach of its international law obligations.

INTERNATIONAL ACTORS

Entities or legal persons that can have rights and obligations under international law.
States

A state has the following characteristics: (1) a permanent population; (2) a defined territory; (3)
a government; and (4) the capacity to enter into relations with other states. The international legal
system is a horizontal system dominated and implemented by states which are, in principle,
considered sovereign and equal.

• Only states can have sovereign over territory

• Only states can become members of the UN and other international organizations
• Only states have access to the International Court of Justice
International Organizations

International organizations are established by states through international agreements and their
powers are limited to those conferred on them in their constituent document. This document may
also provide that member states are legally bound to comply with decisions on particular matters.
Nationality of Individuals, Companies, etc

Individuals are generally not regarded as legal persons under international law. Their link to state
is through the concept of nationality, which may or may not require citizenship. Nationality is the
status of being treated as a national of a state for particular purposes. The most common methods
of acquiring nationality at birth are through one or both parents and/or by the place of birth.
Companies, ships, aircraft and space craft are usually considered as having the nationality of the
state in whose territory they are registered.

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UN GENERAL ASSEMBLY RESOLUTION 2625
(n.o.)
DECLARATION ON PRINCIPLES OR INTERNATIONAL LAW CONCERNING
FRIENDLY RELATIONS AND CO-OPERATION AMONG STATES IN ACCORDANCE
WITH THE CHARTER OF THE UNITED NATIONS

Preamble

The General Assembly,

Solemnly proclaims the following principles:

a. The principle that States shall refrain in their international relations from the threat or use
of force against the territorial integrity or political independence of any State, or in any
other manner inconsistent with the purposes of the UN
b. The principle that States shall settle their international disputes by peaceful means in such
a manner that international peace and security and justice are not endangered
c. The duty not to intervene in matters within the domestic jurisdiction of any State, in
accordance with the Charter
d. The duty of States to cooperate with one another in accordance with the Charter
e. The principle of equal rights and self-determination of people
f. The principle of sovereign equality of States
g. The principle that States shall fulfil in good faith the obligations assumed by them in
accordance with the Charter

General Part

Declares that:

In their interpretation the above principles are interrelated and each one should be construed in
the context of the other principles. Nothing in this Declaration shall be construed as prejudicing
in any manner the provisions of the Charter or the rights and duties of Member States under the
Charter or the rights of people under the Charter.

Declares further that: The principles of the Charter which are embodied in this Declaration
constitute basic principles of international law, and consequently appeals to all States to be guided
by these principles in their international conduct and to develop their mutual relations on the basis
of the strict observance of these principles.

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PUBLIC INTERNATIONAL LAW: Basic Concepts
SOURCES OF INTERNATIONAL LAW

In theory, there is no hierarchy among the three sources of law listed in Article 38 of the ICJ
Statute. In practice, however, international lawyers usually look first to treaty rules, then the
custom, and last to general principles.
1. Treaties

International conventions are referred to as treaties, written agreements between States that are
governed by international law. The law of treaties is set out in the 1969 Vienna Convention on
the Law of Treaties which contains the basic principles of treaty law, the procedures for how
treaties becoming binding and enter into force, the consequences of a breach of treaty, and
principles for interpreting treaties.

The general rule is that a treaty should be interpreted in good faith in accordance with the ordinary
meaning to be given to the terms in it. Another important principle is that treaties are binding only
on State parties.
2. Custom

International custom is evidence of a general practice accepted as law through a constant usage
among States over a period of time. Customary law bind all States.

Examples of rules of customary international law are:

• giving foreign diplomats criminal immunity

• treating foreign diplomatic premises as inviolable
• recognizing the right of innocent passage of foreign ships in the territorial sea
• recognizing the exclusive jurisdiction of the flag State on the high seas
• ordering military authorities to respect the territorial boundaries of neighbouring States
• protecting non-combatants such as civilians and sick or wounded soldiers during
international armed conflicts
3. General Principles of Law

These are general principles that apply in all major legal systems. An example is the principle that
persons who intentionally harm others should have to pay compensation or make reparation.
4. Subsidiary means for the determination of rules of law

Subsidiary means are not sources of law; instead, they are evidence that can be used to prove the
existence of a rule of custom or a general principle of law.

Article 38 lists only two subsidiary means – the teaching (writings) of the most highly qualified
international law scholars, and judicial decisions of both international and national tribunals if
they are ruling on issues of international law.

JURISDICTION OF STATES
1. Principles of jurisdiction

The concept of jurisdiction refers to the power of a State to prescribe and enforce criminal and
regulatory laws and is ordinarily based on the territorial principle. States can also claim

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jurisdiction based upon the nationality principle by extending jurisdiction over their nationals
even when they are outside the territory.
2. Crimes against humanity

No State may exercise jurisdiction within the territorial sovereignty of another State. The police
of State A cannot enter the territory of State B to arrest a person who has committed a crime in
State A. States enter into bilateral treaties to provide for the extradition of alleged offenders.

The high seas and outer space are outside the territorial jurisdiction of any State and subjected to
the jurisdiction of the “flag State”, or State of registration. The most notable exception is piracy.
All States have a right to board pirate ships on the high seas without the consent of the flag States.

CREATION AND RECOGNITION OF NEW STATES AND

INTERNATIONAL INSTITUTIONS
1. Creation and recognition of new States

During the 20th century, many new States were created through decolonization. In addition to the
creation of a new State with the consent of the former sovereign government, new States can be
created by secession, where part of a State secedes and the former sovereign State continues in
existence, or dissolution, where the former sovereign State ceases to exit, and its parts form new
States. In some instances, new States can be created by agreement, such as the division of
Czechoslovakia into the Czech and the Slovak Republic. Lastly, the principle of uti possidetis
determines territorial boundaries resulting from armed conflict. At the end of a war each State
retained as its territory the area it had actually possessed at the end of the hostilities.

Recognition of a State as an international legal person by another State occurs formally through
a letter of recognition, legislation, or a treaty, or informally through some form of diplomatic
interaction.
2. Self-determination

The right to self-determination allows people to determine their own form of economic, cultural
and social development, free from outside interference, and requires governments to represent the
whole population without distinction. It also maintains that people are entitled to choose their
own political status.

This principle has been applied by the ICJ in the process of decolonization. More controversial is
whether it should also be applied to minority groups living within the State boundaries. The
conventional view is that self-determination cannot be claimed by such groups in order to break
away from independent countries.

UNITED NATIONS

The Un was established in 1945, with 51 members. As of April 2009, it has 192 members which
encompasses practically all States. Membership is open to any country that is “peace-loving” and
accepts the obligations under the Charter. The purposes of the UN are:

• To maintain international peace and security

• To develop friendly relations between States
• To achieve international cooperation in solving international problems

The UN is financed through membership dues. The UN Charter established six main organs:
Security Council, General Assembly, International Court of Justice, Secretariat, Trusteeship
Council and Economic and Social Council.

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SECURITY COUNCIL

The Security Council consists of 15 States – the five permanent members (USA, UK, France,
Russia and China), and ten States elected for two year terms. Decisions of the Security Council
require nine “yes” votes, and no “no” votes or veto.

Although it did not do much during the Cold War due to the constant veto of some States, from
1990 onwards, it has become much more active. However, there were still spectacular 93 failures
to prevent serious threats to peace and security during the Balkan wars, the Somalia civil war and
the Rwandan genocide.

The major functions of the Security Council are set out in the UN Charter, and are:

• The peaceful settlement of disputes between States

• To authorize action in relation to threats to the peace, breaches of the peace and acts of
regression

GENERAL ASSEMBLY

All members of the UN are represented in the General Assembly and each has one vote. The role
of the GA is to consider, discuss and make recommendations, unless the issue is related to a
dispute or other situation under the consideration of the Security Council. However, in the face
of inaction by the Security Council, the GA has created means of sanctioning collective actions.

INTERNATIONAL COURT OF JUSTICE (ICJ)

The ICJ was established with the UN in 1945. It succeeded the Permanent Court of International
Justice and is located in The Hague. It has 15 permanent members, elected for a nine year term.
Decisions are by majority vote, and there is no appeal.

ENFORCEMENT OF INTERNATIONAL LAW

The UN Charter includes various methods for resolving disputes:

1. Negotiation

A discussion of the issues between the parties, without the participation of any third party. Some
organisational forums exist for States to raise issues in dispute as well as dealing with coordination
of policy. Example: the Group of Eight (G-8) holds regular meetings of the eight largest Western
economic powers, which are France, the UK, the USA, Russia, Germany, Japan, Italy and Canada.
2. Inquiry

If States agree to have a third party determine certain issues of fact which are relevant to their
dispute, an inquiry is held.
3. Mediation and conciliation

These mechanisms all involve a third party, and range in formality from that third party acting as
an honest broker between States in dispute, who may have severed diplomatic relationships,
through the making of a binding determination by an arbitrator.
4. Arbitration

Arbitration is a more formal method of dispute settlement which involves the parties in dispute
agreeing to submit to a binding decision by an arbitrator, while (unlike in a judicial court)

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retaining some degree of control over the selection of the arbitrator and the applicable law and
procedure.
5. Judicial settlement

The ICJ can decide disputes between States. Its decisions are binding only on the parties to a
particular dispute, and they must agree to the ICJ having jurisdiction before hearing the case. A
State can limit the scope or subject matter of disputes that can go the Court by making a
reservation.

USE OF FORCE

Before 1945, international law generally allowed States to resort to military force to settle their
disputes, which often led to the escalation of military violence and ultimately to world wars. Since
the adoption of the UN Charter, all member States are required to refrain from the threat or use
of force against the territorial integrity or political independence of any State. There are 3 basic
exceptions to this general prohibition:

• Self-defense in response to an armed attack

• Collective security measures authorized by the UN Security Council
• Humanitarian intervention to protect human rights
1. Unilateral use of force

A State has the right of individual or collective self-defense “if an armed attack occurs” under
Article 51 of the UN Charter. There is a disagreement as to whether this right is limited to
situations where an armed attack has actually occurred or includes action in anticipation of attack.
The UN Secretary General accepts that States have a right to use force in self-defense if an armed
attack is imminent. In contrast, the outer limits of self-defense have been pushed by theories of
“preemptive self-defense” by which States seek to argue that they are justified to use force
unilaterally to prevent more remote or distant threats. This theory was most recently used by the
US in its invasion of Iraq in March 2003.
2. Collective use of force

If there is a threat or breach of international peace and security, the Security Council can respond,
although it does not control its own military forces. Between 1945 and 1990, the Council
authorized forceful measures once, in response to North Korea’s invasion of South Korea in 1950.
In 1990, it authorized them again against Iraq following its invasion of Kuwait, Bosnia-
Herzegovina, Somalia, Rwanda and Haiti. These collective forceful measures are not under the
command of the UN, but of one or more of the participating countries.

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THE ECHR IN 5O QUESTIONS
THE EUROPEAN CONVENTION ON HUMAN RIGHTS

1. When was the Convention adopted?

The European Convention on Human Rights entered into force on 3 September 1953. The
Convention gave effect to certain of the rights stated in the UDHR and established an international
judicial organ with jurisdiction to find against States that do not fulfil their undertakings.

2. What is a protocol to the Convention?

It is a text which adds one or more rights to the original Convention or amends certain of its
provisions. To date, 16 additional protocols have been adopted.

3. Which rights are protected by the Convention?

The rights and freedoms secured by the Convention include the right to life; the right to a fair
hearing; the right to respect for private and family life; freedom of expression; freedom of thought,
conscience and religion; and the protection of property. It also prohibits torture and inhuman
treatment or punishment; forced labour; arbitrary and unlawful detention; and discrimination.

4. Does the Convention evolve?

Through its case-law, the ECHR has made the Convention a living instrument; it has thus
extended the rights afforded and has applied them to situations that were not foreseeable when
the Convention was first adopted.

5. Are domestic courts obliged to apply the Convention?

The Convention is applicable at national level because it has been incorporated into the legislation
of the States parties. Domestic courts, therefore, have to apply it.

THE EUROPEAN COURT OF HUMAN RIGHTS (ECHR)

6. What is the Court’s composition?

The number of judges on the Court is the same as that of the States parties to the Convention (47
at present).

7. How are the Court’s judges elected?

The judges are elected by the Parliamentary Assembly of the Council of Europe from lists of three
candidates proposed by each State. They are elected for a nonrenewable term of nine years.

8. Are the judges really independent?

Although judges are elected in respect of a State, they hear cases as individuals and do not
represent that State.

9. Do judges sit in cases concerning their own country?

“National judges” cannot sit in a single-judge formation. In exceptional cases, they may be invited
to sit in a Committee.

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10. What is the Registry and how is it run?

The Registry is the body of staff that provides the Court with legal and administrative support in
its judicial work. It is made up of lawyers, administrative and technical staff and translators.

11. What is the Court’s budget?

The Court’s expenditure is borne by the Council of Europe, whose budget is financed by
contributions from member States. The budget covers the salaries of judges and staff and various
overheads (IT, official travel, translation…)

12. Can the Court’s composition vary from one case to another?

Yes, cases are heard by one of four main formations. Manifestly inadmissible applications are
examined by a single judge. A three-judge Committee may rule by a unanimous vote on the
admissibility and merits of cases. An application may also be assigned to a seven-judge Chamber
which rules by a majority vote.

Exceptionally, the Grand Chamber of 17 judges hear cases either relinquishment of jurisdiction
by a Chamber or when a request for referral has been accepted.

13. What is the difference between a Chamber and a Section?

A Section is an administrative entity, and a Chamber is a judicial formation of the Court within a
given Section. The Court has five Sections in which Chambers are formed.

14. How are Chambers and Grand Chambers formed?

A Chamber is composed of the President of the Section to which the case was assigned, the
“national judge” and five other judges designated by the Section President in rotation.

The Grand Chamber is made up of the Court’s President and Vice-Presidents, the Section
Presidents and the national judge, together with other judges selected by drawing of lots.

15. When does the Grand Chamber hear a case?

The initiation of proceedings before the Grand Chamber takes two different forms: referral and
relinquishment. After a Chamber judgement has been delivered, the parties may request referral
of the case to the Grand Chamber and such requests are accepted on an exceptional basis.

Cases are also sent to the Grand Chamber when relinquished by a Chamber either because the
case raises serious questions affecting the interpretation of the Convention or because there is a
risk of inconsistency with a previous judgement of the Court.

16. Can a judge refuse to sit in a case?

Yes. Judges are in fact obliged to refrain from taking part in the consideration of a case when they
have previously acted in that case in any capacity.

17. What is an ad hoc judge?

An ad hoc judge is appointed by the government concerned when the national judge does not sit
in the case because of inability, withdrawal or exemption.

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18. What is the scope of the Court’s jurisdiction?

It has jurisdiction to hear allegations of violations of the European Convention on Human Rights
and does so on receiving individual or inter-State applications.

PROCEEDINGS BEFORE THE COURT

19. Who can bring a case to the Court?

The Convention makes a distinction between two types of application: individual applications
lodged by any person, group, company or NGO, and inter-State applications.

20. Who are cases brought against?

Cases can only be brought against one or more States that have ratified the Convention.

21. How are cases brought before the Court?

Cases can be brought directly by individuals. It is sufficient to send the Court a completed
application form with the requisite documents. However, the registration of an application by the
Court is no guarantee that it will be admissible or successful on the merits.

22. What is the difference between an individual and an inter-State application?

Most applications before the Court are individual applications lodged by private persons.

23. Is it necessary to be represented by a lawyer in proceedings before the Court?

Legal representation is not indispensable at the start of proceedings. The assistance of a lawyer
becomes necessary, however, once the Court has given notice of the case to the respondent
Government for their observations.

24. Who is entitled to make legal submissions to the Court?

An applicant may be represented by anyone who is a lawyer qualified to practise in one of the
State parties to the Convention, or who has been so authorised by the President of the Chamber.

25. What are the different stages of the proceedings before the Court?

There are two main: the admissibility stage and the merits stage.

A single-judge formation will declare an application inadmissible or admissible. Then, a

Committee will give a final decision in a case.

A Chamber will give notice of the case to the respondent Government for their observations.
Ultimately, the Chamber delivers a judgement that will become final only after the expiration of
a three-month period during which the applicant or Government may request the referral of the
case to the Grand Chamber. If the request for referral is accepted, the case will be reconsidered,
and a public hearing will be held. The Grand Chamber judgement will be final.

26. What are the conditions for admissibility?

Cases can only be brought to the Court after domestic remedies have been exhausted; an
applicant’s allegations must concern one or more of the rights in the Convention; applications
must be lodged within six months following the last judicial decision in the case; the applicant

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must be a victim of a violation of the Convention; and it should not be forgotten that applications
can only be lodged against one or more States parties.

27. Are NGOs or States allowed to take part in proceedings?

Yes, both NGOs and State can lodge applications and even intervene in proceedings as third
parties.

28. What is a third-party intervener?

The President of the Court may authorise any person other than the applicant, or another State
other than against which the application has been lodged, to intervene in the proceedings in order
to file pleadings and take part in public hearings.

29. Can the Court appoint experts or take evidence from witnesses?

Yes. Exceptionally, the Court may decide to take investigative measures and to travel to certain
countries in order to clarify the facts of a given case. The delegation from the Court may then take
evidence from witnesses or appoint experts.

30. Does the Court hold public hearings?

The Court basically has a written procedure but occasionally decides to hold public hearings in
specific cases. Hearings take place in the Human Rights Building in Strasbourg.

31. What are the preliminary objections?

Preliminary objections are arguments submitted by the respondent Government in support of their
claim that the case should not be examined on the merits.

32. What is a friendly settlement?

A friendly settlement is an agreement between the parties to put an end to proceedings. The
outcome is usually that the State pays the applicant a sum of money. After examining the terms
of the friendly settlement, the Court will strike out the application.

33. Can the Court order interim measures?

The Court may decide that a State should take certain measures provisionally while it continues
its examination of the case. This usually consists of requesting a State to refrain from doing
something.

34. Are deliberations open to the public?

No, the Court’s deliberations are always secret.

35. Have States ever refused to cooperate with the Court?

There have been cases where States have refused to provide the Court with the information and
documents required for its examination of an application. In such cases, the Court may find
against the State under Article 38 of the Convention.

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36. How long do proceedings before the Court usually last?

The Court endeavours to deal with cases within three years after they are brought, but the
examination of some cases can take longer or shorter time, especially when the applicant is
alleged to be facing an imminent threat.

THE COURT’S DECISIONS AND JUDGEMENTS

37. What is the difference between a decision and a judgement?

A decision is usually given by a single judge, a Committee or a Chamber of the Court, and it
concerns only admissibility. Meanwhile, a Chamber examines the admissibility and merits of an
application, and then delivers a judgement.

38. Are States bound by judgements against them?

Judgements finding violations are binding on the States concerned and they are obliged to execute
them. The Committee of Ministers of the Council of Europe monitors the execution of
judgements, particularly to ensure payment.

39. Can judgements be appealed against?

Inadmissibility decisions, and also judgements are final and cannot be appealed against. However,
the parties have three months request referral of the case to the Grand Chamber for a fresh
consideration.

40. How are the Court’s judgements enforced?

When the Court delivers a judgement finding a violation, it transmits the file to the Committee of
Ministers of the Council of Europe, which confers with the department responsible for the
execution of judgements in the country concerned and decide how the judgement should be
executed and to prevent similar violations.

41. What are the consequences of a judgement finding a violation?

In the event of a violation being found, the State concerned must be careful to ensure that no such
violation occur again in the future.

42. What is just satisfaction?

The sum of money awarded by the State to the applicant by way of compensation for the damage
it may have caused the individual.

43. What is the pilot case?

The Court has developed a new procedure to cater for the massive influx of applications
concerning similar issues. When the Court delivers its judgement in a pilot case, it calls on the
Government concerned to bring the domestic legislation into line with the Convention. It will
then proceed to dispose the other similar cases.

44. What is a separate opinion?

Judges may wish to draft an opinion concerning a case in which they have sat. They might explain
why they agreed and voted with the majority, or why they did not.

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THE COURT’S ACTIVITY

45. How many cases are brought before the Court?

Over 50,000 new applications are lodged every year.

46. What rights do most cases concern?

55% of the violations found by the Court concern either Article 6 (right to fair hearing) or Article
1 of Protocol No.1 (protection of property). Then in about 13%, Articles 2 and 3 (right to life and
prohibition of torture and inhuman treatment).

47. Are interim measures really effective?

Whilst States almost always follow the Court’s indications concerning interim measures, it is not
unknown for some of them to fail to act on the Court’s request.

48. Does the Court deal with any issues of society?

Over the past 50 years the Court has ruled on many issues of society such as: abortion-related
questions, assisted suicide, adoption by homosexuals and environmental concerns.

THE COURT’S FUTURE

49. What is the Protocol No.14?

Protocol No.14, whose aim is to guarantee the optimisation of the filtering and processing of
applications, provides for new judicial formations, for a new admissibility criterion and for longer
terms of office for judges.

50. What are the plans for reform?

Establishing a new judicial filtering mechanism and elaborating a Statute concerning certain
organisational elements of the Court’s functioning.

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BECOMING PARTY TO A TREATY:
Reservations and Declarations
RESERVATION:

A statement made by a state by which it purports to exclude or alter the legal effect of certain
provisions of a treaty in their application to that state. A reservation may enable a state to
participate in a multilateral treaty that it would otherwise be unable or unwilling to participate in.

A state may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a
reservation unless:

a) The reservation is prohibited by the treaty

b) The treaty provides that only specified reservations, which do not include the reservation
in question, may be made; or
c) In cases not falling under subparagraphs (a) and (b), the reservation is incompatible with
the object and purpose of the treaty.

The effectiveness of a reservation is dependent on its acceptance by other states parties, and
any other state party may object to it. As a rule, a reservation is considered accepted by another
state party if that state party has raised no objection within twelve months after it has been
notified of the reservation.

Regrettably, silence on the part of other states parties seems to be the common response to
reservations; and, unfortunately, this silence is rarely the result of conscious deliberation.

DECLARATIONS:

Some conventions allow or even require states parties to make declarations concerning the extent
to which they are bound by a certain provision. Such statements may relate to the competence
of a supervisory mechanism.

One of the major differences between a ‘reservation’ and an ‘interpretative declaration’ lies in the
author’s purpose in making that declaration.

• reservation seeks to exclude or modify the legal effect of the treaty’s provisions in their
application to the state author,
• the interpretative declaration seeks only to clarify the meaning or scope of the treaty
provisions.

Restrictions and Derogations

RESTRICTIONS:

Conventions and other instruments may contain a number of restrictions or limitations to the
rights they stipulate. It is generally accepted that only few rights and freedoms are ‘absolute’.
At the same time, such restrictions must be used only to establish the proper limits of the
protected right and not as an excuse for undermining the right itself or destroying it altogether.

Any limitation must comply with the following minimum requirements:

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 • The limitation must not be interpreted so as to jeopardize the essence of the right
concerned;
• The limitation must be interpreted strictly in the light and context of the particular right;
• The limitation must be prescribed by law and be compatible with the object and purpose
of the instrument;
• The restriction must be based on a law;
• The restriction must be necessary; there must be a pressing social need, assessed on a
case-by-case basis. That the law would be useful is in itself not sufficient; it must be
consistent with other protected rights.
• The restriction must be justified by the protection of a strictly limited set of well- defined
public interests, which usually includes one or more of the following grounds: national
security, public safety, public order, the protection of health or morals, and the protection
of the rights and freedoms of others.

DEROGATIONS:

Some human rights instruments allow states to take measures derogating temporarily from some
of their obligations. Derogating measures must be of an exceptional and temporary nature.

The rationale for derogation provisions is to strike a balance between

a) the sovereign right of a government to maintain peace and order during public
emergencies,
b) and the protection of the rights of the individual from abuse by the state.

Thus, the state is allowed to suspend the exercise of some rights when necessary to deal with an
emergency situation (e.g., derogation of the right to peaceful assembly), provided it complies with
safeguards against any abuse of these derogation provisions.

When derogation measures are allowed, such derogations have to meet several criteria:

• There must be a war or general state of emergency threatening the life of the nation;
• The state of emergency must be officially proclaimed;
• Measures may not go beyond the extent strictly required by the situation;
• Measures may not be inconsistent with other obligations under international law; and
• Measures may not be discriminatory solely on grounds of race, colour, sex, language,
religion or social origin.

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A HISTORY OF HUMAN RIGHTS (n.o.)
THE CYRUS CYLINDER – c539-530BC Cyrus II, King of Persia, began his reign by decreeing
reforms on this clay cylinder. Most notably, he declared that exiled slaves could return to their
homelands and implies that there will be religious freedom throughout the Persian Empire

THE MAGNA CARTA - 1215 This Great Charter provided a new framework for the
relationship between the King and his subjects. It established for the first time that everybody,
including the king, was subject to the law. Most famously, it gave all ‘free men’ the right to justice
and a fair trial.

THE PETITION OF RIGHT - 1628 This petition was sent by the English Parliament to King
Charles I. It included the demands that the King could not tax the people without the Parliament’s
consent nor imprison people without cause.

THE BILL OF RIGHTS - 1689 This English document set out political and civil rights,
including the freedom to elect Members of Parliament, the protection of free speech in Parliament
and that the king or queen could not interfere with the law. I

THE DECLARATION OF THE RIGHTS OF MAN AND OF THE CITIZEN - 1789 This
French Declaration set out the universal and inalienable rights of men/citizens (not women
unfortunately!) It stated that all are born equal and free, all can participate in civil and political
life, can think and speak freely, be presumed innocent until proven guilty and that all have the
right to own private property

THE U.S. BILL OF RIGHTS – 1789 This is made up of the first ten amendments to the U.S.
Constitution. These include the freedoms of speech, press and assembly, the right to a fair trial
and freedom from unreasonable search and seizure.

THE GENEVA CONVENTIONS – 1864-1977 These treaties focused on alleviating the effects
of war on soldiers and civilians. The conventions state the neutral status of the sick and wounded,
allow the provision of protection and relief for the wounded and establish the humane treatment
of prisoners of war.

WOMEN’S SUFFRAGE - 1893 After years of effort by suffrage campaigners led by Kate
Sheppard, women won the right to vote in September 1893. New Zealand became the first
independent country where women could vote in parliamentary elections.

THE UNITED NATIONS - 1945 The United Nations was established following the devastation
of lives and property in World Wars One and Two. “We the peoples of the United Nations are
determined to save succeeding generations from the scourge of war, which twice in our lifetime
has brought untold sorrow to mankind.”

THE UNIVERSAL DECLARATION OF HUMAN RIGHTS - 1948 The Universal

Declaration of Human Rights (UDHR) is part of the International Bill of Human Rights. The
thirty articles cover the rights of the individual such as the freedom from slavery; political and
civil rights such as the freedoms of speech and association; and economic, social and cultural
rights such as the right to education and adequate housing. In 1948 New Zealand lobbied to ensure
“freedom from want” was alongside rights such as freedom of speech and freedom from torture.

AMNESTY INTERNATIONAL - 1961 In 1961, British lawyer Peter Benenson was outraged
when two Portuguese students were jailed just for raising a toast to freedom. He wrote an article
and launched a campaign that provoked an incredible response across the world. Benenson’s call
to action sparked the idea that people everywhere can unite in solidarity for justice and freedom.
Amnesty International was founded and is now the world’s largest human rights organisation.

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THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS – 1976 This
covenant is also part of the International Bill of Rights. It covers civil and political rights such as
the right to life and liberty, political participation and nondiscrimination. New Zealand has many
these rights written into its Bill of Rights.

THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL

RIGHTS - 1966 This covenant is part of the International Bill of Rights, along with its equivalent
on civil and political rights and the Universal Declaration of Human Rights. It covers economic,
social and cultural rights such as the right to work for fair wages, holiday and leisure time, the
protection of the family and the right to adequate food, housing and clothing. New Zealand ratified
the International Covenant on Economic, Social and Cultural Rights (ICESCR) in 1978.

NEW ZEALAND BILL OF RIGHTS ACT - 1990 The New Zealand Bill of Rights Act (1990)
sets out the rights and freedoms of anyone subject to NZ law. It focuses on civil and political
rights, such as freedom from torture, the right to vote, freedom of movement and the right to a
fair trial. However, economic, social and cultural rights such as access to healthcare and the right
to adequate housing are not fully protected in this.

YOUNG NEW ZEALANDERS – TODAY- In classrooms and beyond across New Zealand,
young people like you are learning about their human rights and the rights of others, why these
rights must be defended and protected, and they are also taking action to promote human rights
for all!

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