HUMR5140 Introduction to Human Rights Law Autumn 2012

Lecture 1: Human Rights as Law: Introduction to Legal Concepts and Methods

This lecture: ‘Human Rights Law for Non-Lawyers’ 1. 2. 3. 4.

Introduction to HUMR5140 Introduction to basic legal concepts Introduction to international law Introduction to human rights law as part of international law

INTRODUCTION TO HUMR5140

HUMR5140 Syllabus • Javaid Rehman, International Human Rights Law (Pearson, 2nd ed., 2010) • Compendium • Cases, reports, other official documents

HUMR5140 Course outline 1. Human Rights as Law 2. Human Rights in International Law 3. International Bill of Rights 4. Scope of Application 5. Treaty bodies 6. Charter bodies 7. The Americas and Africa 8. Europe 9. Human Rights in National Legal Systems 10. Mock trial

HUMR5140 Student participation • Primarily lectures – But room will be made for discussions – Some lectures will be 50-50 – Q&A and spontaneous discussions are encouraged

• Study groups • Prepared presentations? • Mock trial

HUMR5140 Examination • Mid-term essay: – Assignment given 17 September – Submission deadline 27 September – Pass/fail

• Take-home exam: – Assignment given 16 November – Submission deadline 27 November – Grade A-E (F)

HUMR5140 Learning outcome • “The aim of this course is to provide students with a good understanding of human rights law, institutions and mechanisms for the protection and promotion of human rights at universal, regional and national levels. Students should be able to identify different tools for legal interpretation of key texts, problematise human rights questions in a legal context, identify key institutional mechanisms and be able to present orally and in written form arguments on human rights from a legal perspective.”

INTRODUCTION TO BASIC LEGAL CONCEPTS

What is «law»? A surprisingly difficult question

Hart: Unity of primary and secondary rules

Austin: The command of a sovereign, backed by the threat of a sanction A set of enforceable rules of conduct which set out guidelines for the way individuals and society behave

Dworkin: An interpretive concept to achieve justice

What is «international law»? A traditional problem: Is it «law»?

Weak enforcement mechanisms

Hart: Unity of primary and secondary rules

Austin: The Yes,command but of a of a sovereign, backed by the different threat of a sanction

character than domestic law

Dworkin: An interpretive concept to achieve justice

Malcolm Shaw: Law is that element which binds the members of the community together in their adherence to recognised values and standards

«International law is the body of rules which are legally binding on states in their intercourse with each other»

• High degree of codification and systematisation

• Low(er) degree of codification

• Principles developed by courts, case-by-case • Relies on broad, general CIVIL LAW principles • More specific and detailed NATIONAL LEGAL TRADITIONS Hybrid

systems

COMMON LAW

Other traditions Suggested reading: Dominik Lengeling, «Common law and civil law – differences, reciprocal influences and points of intersection», available at: http://www.consulegis.com/fileadmin/downloads/thomas_marx_08/DLengeling_paper.pdf

Structure of national laws – example • Private law – Rules pertaining to the relationship between private entities

• Public law – Rules pertaining to the relationship between a public and a private entity, or between public entities

• Hierarchical structure – Norway: Constitution, legislation, regulations, royal decrees… – Where does international law fit?

Some important concepts «Rule of law»

No person is above the law

No one can be punished by the state except for a breach of the awperson is above the law No one can be convicted for breaching the law except in the manner set forth by the law itself

Some important concepts Justice

Legitimacy

Procedural justice vs. substantive justice

Four indicators of legitimacy

Fairness

?

Example: Fair trial

Equity as an element of justice (distributive justice)

1. Determinacy

2. Symbolic validation 3. Coherence

4. Adherence

A trial which is legitimate and which produces a just outcome, is «fair»

…and some latin expressions Lex superior Lex posterior

Lex specialis

Norm of higher rank prevails over norm of lower rank A newer norm prevails over an Constitution older norm

Higher

A Legislation specific norm prevails over a general norm

Hierarchy Specific norm

Administrative regulations Lower

…and some latin expressions

Lex lata

The law as it is

Lex ferenda

The law as it should be

INTRODUCTION TO INTERNATIONAL LAW

International law • Two categories: – Private international law (conflict of laws) – Public international law, a.k.a. general international law, a.k.a. simply “international law”

• Traditionally: International law regulates the relationship between States • But individuals (and other non-state actors) can to a certain extent be subjects (duty-bearers and rights-holders) under international law • The “humanisation” and the “human-rightism” of international law

Some important features • No “sovereign” • Relatively weak enforcement mechanisms • No formal hierarchy of norms (but consider jus cogens) • The “fragmentation” of international law

Contact information: Kjetil Mujezinović Larsen Associate Professor, the Norwegian Centre for Human Rights Phone: +47 22 84 20 83 E-mail: [email protected]