Brief introduction to common law - difference between common law and civil law

Brief introduction to common law - difference between common law and civil law

 

Map of the world : there are plenty of legal systems in the world : common one = civil law then common law. there is also many other systems = Asia : complicated : customary law, civil law, common law = cause → colonisation

 

Main differences :

Civil law : most important thing = based on codes = written law voted in Congress (USA) or Parlement (RU) = then they become status. Professionals rely on these codes. In Trial = procedure is inquisitorial.

=> origins : roman law

Common law : largely uncodified = there are few status (they are necessary because of the technology in today’s world for ex) ⇒ They like to have flexibility so no Codes. It's an adversarial system and it’s based on precedents = they decide because you're supposed to know as a lawyer the story of court decisions on the topic you're interested in.

ATTENTION : judges are chosen and elected by the people (in the majority of systems) = not necessarily a good thing because solutions are based to please the crowd.

 

Ex : California => mexican territory before the purchase of the territory by the USA so no surprise when you see they are a lot of status = show the variations in the system because of the historical context.

 

Common law = it’s used in England, Wales and Northern Ireland BUT not in Scotland because they have different history = hybrid of civil law AND Common law. Furthermore, we can find it in Canada, New zealand India … (colonized so part of history). There are places where it's not that simple : California, Louisiana (French territory historically so it's a bi judicial system = civil law + common law).

 

Key principles of Common law : the point of Common law is to minimize status = to base a lot of decisions on precedents (case law or judge made law).

Stare decisis = this system will be a disaster without some logic to it = because of that principle, when a case is considered an important case, if it's the same, the same solution will be given on the matter.

Historicaly, things change = abortion was illehal then land mark decision so the abortion become legal.

BUT sometimes, some cases are so unique there are no precedents = it's up to the judge to sort out what are the legal grounds for ruling.

It's impossible to become a landmark case if the judge dont explain the logic behind his solution.

 

In the US, the top court is the Supreme court = typically, solutions of this court are based on majority = judge conquer and some discend (agree disagree) = they have to explain why they conquer, why they descend.

(In the lawyer office : Codes where there is all the history of decisions).

 

Other important principle : Habeas Corpus (1679) => ex of George Bush jr.

Explanation : you have to be a judge before being incarcerated (1 year max before judgement).

 

Sources of the law in common law countries :

Case law : precedents established by the judges. *

Statues : written law passed by the legislature at the state of federal level = all the states have their Supreme Court, federal court … Most of the systems are bi cameral = Congress, Senate.

BUT Alaska for example decided to have one house

In the UK : Parliament : 2 chambres.

Regulations : issued by the executive branch = organize life and it can be at any level.

Written constitution : 2 kinds of constitution in the US : federal constitution and all the constitution from all the states.

 

US supreme Court : 9 justices = reason : to have a majority = to not have a deadlock.

ATTENTION : Obama placed women in the Supreme court but not many of them AND all of the justices come from Harvard and Yale.

 

Role of the lawyer : judge and jury.

Adversarial system : 2 sides in a criminal case = prosecution on the one hand = to accuse a person and the defense = supposed to defend the person.

=> They present to the judge and jury their finds = they ask for proof, evidence to the other side = they present evidence AND question the witness.

 

Attorney applies to defense AND prosecution = in the UK : defence = made of barristers (they are in court) and solicitors (they prepare the evidence before court) = differences are blurry now.

 

 

The judge does not know anything about the case and he / she discovers everything at the same time of the jury = they are like the referee in sport. When a witness is questioned : one side can decide to object and the job of the judge is to decide if he sustained or overruled the objection based on legal principles.

The jury returns a verdict = in the USA : more and more civil courts have juries.

=> In the criminal trial : verdict is guilty (conviction) or not guilty (acquittal). In civil trial: verdict is if the defendant is found liable or not.

 

If guilty or liable : the judge pronounces a sentence.

 

In criminal law, in the 6 amendments of the US constitution = provide the necessity for a person who is prosecuted to have the assistance of counsel for his/her defense.

In civil cases : you have to pay for a lawyer = if no money = you have to do your own defense.

 

Origins of Common law :

It started in 1066 by William the Conqueror (from France, duke of Normandie).

He conquered the british island : became king of england and Normandie.

He decided to organize England = its common law because there are plenty of courts in ENgland at the time so he decided to bring the norm in the court = all the courts became the same SO common.

Later, it spread to the entire British empire.

 

Magna Carta (great charter of liberty) = this document from 1215 came from a context where England was unified and King john was facing a difficult decision = he was losing a lot of money because of the war against France. SO the barons of England rebelled against the king and they invaded and conquered London.

They forced the king to negotiate in order to bring peace and unity to the country => They prepared this document which was revolutionary at the time (the king signed a document where it declared that he is accountable as the other civilians to the rule of law). The most important clause in this charter is the “free man and a fair trial” = free man has the right to be prosecuted in a fair trial (at the time, it was just the noblemen).

Initially, it was a political decision BUT later, it was revised and updated 3 times by other kings = at first, no consequences but it became after the fondation to the Common law system → it laid to habeas corpus.

 

British empire : (check the map on the internet).

 

The civil branch in the common law system = in the common law system, civil law is opposed to criminal law ⇒ its about governing disputes / litigation between mostly private parties or a legal person (company) = they can sue or be sued.

Sometimes, it's also possible to sue a government agency (it's a legal person too!).

 

The first civil Code was in Louisiana in 1808 = it had a french inspiration ⇒ inspired by the Code Napoléon = it was written in french.

 

In civil law : violation of the law but less important than a criminal case. Criminal case : someone has violated the law = committed an offense against the state/society as a whole and accordingly is prosecuted by the state. The crime in question is an offense against all the society (the State sue and the district attorney represents the state = State has to cover the expenses of the prosecution) instead of the civil case where it's just an offense against an individual.

 

Calfinornia in criminal cases insists on the sovereignty of the people so the cases normally called “Texas vs blank”, in California, it's “the people vs the state of California ''.

 

Freedom of religion : Problem in society because it can conflict with other religions.

 

Introduction :

 

2 specific cases :

One in Colorado : Jack Philips, baker by trade and he owns a bakery in Colorado = a masterpiece cakeshop.

In 2012 , a gay couple went in the bakery andask him for a cake because they wanted to be married. But the baker is very conservative so he decided to make the cake because he asserted that his religious beliefs m'empeche to make the cake.

The couple filed a complaint and went to the Colorado civil rights commission = they complain that they're being discriminated against because of their sexual orientation = it's prohibited in Colorado to be discriminated against because of sexual orientation. They won and then the commission issued a warning to the baker to not discriminate in the future.

The baker was not happy so he asserted that the commission discriminated against him because of his religion.

The americans began to protest in the streets and the ACLU (American civil liberties Union = non profit organisation, not affiliated to any political party = it was founded in ) was involved and the opinion was in favor of the gay couple.

It's not about the cake : it's about a clash between one freedom and the other.

The other one was set in Oklahoma (north of Texas) : Samantha Elauf, a fashionista => she’s wearing a headscarf (head is covered by a headscarf) = it's considered to be an appurtenance to a specific religion.

In 2008, she was 17 = she was looking for a job in a children clothing store called Abbercrombie and Fitch in Tulsa, Oklahoma. She got a first interview (it was positive) but then the company declined her offer because they claim that the headscarf clashes with the company policy : you have to look a certain way to work there (dress code).

Samantha was not satisfied so she contacted the EEOC (Equal Employment Opportunity Commission : federal government agency) = their job is to prevent and correct if necessary workplace discrimination. This EEOC decided to sue on behalf of Miss Elauf the cloth store because they say they discriminate against her because of her religion.

=> They have in common an illegal issue 

 

Part 1 : Freedom of religion as a Democratic principle

 

In France, in 1789, the déclaration des droits de l’homme et du citoyen protects everyone's opinions even religions one = article 10.

 

The Universal declaration of Human Rights proclaimed by the United Nations General assembly in Paris in 1948 (10th december) = it's supposed to stay a global standard for all nations.

It’s stated fundamental human rights : revolutionary => it was supposed to be universally protected. = it was translated into as many languages as possible (500 …)

HOWEVER there is limitations : It’s not a Treaty per say = it's just a declaration => not as legally binding as a treaty

But does that lean this declaration learn nothing ? NO = it has a very big moral force as the first international definition of what human rights are supposed to be = approved by many countries → it laid the foundation as what we are trying to define as human rights. 

 

There are plenty of articles :

most important is article 18 : “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.” = influence of the occidental civilization.

Article 19 : “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

Article 20 : “(1) Everyone has the right to freedom of peaceful assembly and association. (2) No one may be compelled to belong to an association.”

The European Convention on Human Rights : drafted (prepared a first version) in 1950 by the council of Europe => in 1953, it entered in force after an amendment and a voting => Human rights applied in every fields (torture …).

The big difference is that it was established by a court : it’s more than a Declaration : established bit the European Court of Human rights (in Strasbourg) = this court is made of 47 judges (one of every states in Europe)

=> The big difference is that the judgement of the court is binding the states to the decision of the court : they are obliged to follow the decision.

 

Important articles :

Article 9 : practical same vocabulary as the UDHR : “1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

 

In the US : there is the first amendment to the US constitution : “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

=> The idea is that the government in  its legislative branch is not supposed to have a creed (to have a religion) and it’s not supposed to intervene and promote a certain religion. Furthermore, the people can petition but not directly attack the government (Capitol’s case).

 

The problem is that sometimes, the freedom of religion and the freedom of speech clash = very common.

 

Part 2 : Freedom of religion as Separation between Church and the State

 

Laique can not be translated : we can use secularism, nonsectarian or religious neutrality.

 

Separation of Church and State :

In France : established in 1905

In the US : apparent thanks to the first amendment = institution cannot establish a religion

=> Article 6 of the US constitution : “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”

 

A few milestones in New England history : Americans are very religious : where did that come from ?

New england was the origin : north east of the USA today = part of the development of the first colonies. Multiple cases :

Pennsylvania : founded by mister Penn = referred to the woods. He was a quaker (specific religious belief) = this man was from a religious family and his religious belief was clashing with the crown in England : not supposed to voice your opinions too loud at the time. BUT the quacker were loud so major problem = he was imprisoned but the irony is that the crown was not very rich = the king owned a lot to the family of mister Penn so the compromise was he the family erased the dept, he can travel and established a new colony = he became the first administrator of the colony.

He was a quaker so he instituted :

Peace

equality : even for native americans

Religious tolerance

=> He attracted a lot of Europeans who were persecuted because of their beliefs = a lot of people came to the colony.

The origins of some of the colonies were diverse : puritans in the New world Massachusetts) = the most spectacular manifestations of this belief is the witches of Salem who were burnt and executed.

The puritans are :

opposed to roman catholics

They wanted to purify the anglican church so they were not welcomed in England.

They founded many colonies (Pylthmouth for example)

The difference with mister Penn was that the congressional church was mandatory (no choice) = state religion

idea was to protect the new society of heresy through corporal  punitions and even executions

Furthermore, other beliefs were persecuted : even the quacker.

 

Religion today (pie chart of 2017) = there are plenty of religions : Protestant = very influential in the USA.

There is another religion very influential : roman catholics because americans come from everywhere = there is a big irish community but also the italians american and plenty of subgroups like polish americans, hispanic community, German americans (the largest community in the US) …

What is interesting in the pie chart : the largest group is the ones with no religions = atheist or agnostic : the difference is that you don’t claim it = not very considered in a good way in the USA = large part of the country is conservative.

They are also other religions in the USA but they are minorities : hindou or buddhist (can be seen in San Francisco where the asian community is quite big) for example.

 

How important is the religion in your life and how it impacts your community ? = depends off the states in the USA => they are the conservative states in the South (Deep south = Georgia, Texas) : they are ex-slaves states. Florida is a bit different because it's mixed : more diverse because there are a lot of tourists and a big hispanic community.

The North east (New england in the past) is the least religious : more acceptance.

 

Part 3 : Can there be limitations on Religious Freedom ?

 

In many countries : religious freedom : not absolute = limitations possible.

art 18 of the UDHC = there is some limitation = its protected but it's not supposed to trouble public order

art 9 of the ECHR : religious freedom can be limited in the interest of public safety, protection  of public order, health or morals, or for the protection of the rights and freedoms of others

 

Limitations on Religious Freedom ?

=> differents interpretations BUT in certain cases : religion can threaten someone life = considered harmful = Jehovah

 

A : Headscarves in the workplace : different interpretations

 

Samantha’s case : she won at the federal district court = civil case so she earned some money BUT apparently her would be employer was not satisfied so they appealed the ruling and it was then taken to the court of appeal = in this case, it was the court of 10 circuits = decision was reversed and the court of appeal ruled in favor of the employer because Elauf did not inform the company that she needed special accomodations for her religion.

After the court of appeal : the case can be brought to the Suprem court = in this case, the court overturned the previous rulling of the court of appeal because the company has violated the title 7 of the Civil right act of 1964 who is about prohibiting discrimination in the workplace.

 

The European court of justice : 2 cases who were ruled on the same day :

Achbita vs G4S = woman from Belgium who was working for a security firm but she was fired in 2006 because she began to wear a headscarf = it was prohibited (they added it later) but it was implicit.

Micropole, 2017 = a french engineer who was fired from the company because some customers (notably from Groupama) complained about the fact she was wearing a headscarf.

=> In these two cases, the ECJ ruled that banning a religious symbol can be legal BUT it has to be specified in the company rules. ALSO : any ban can be based on subjective reasons (one customer not satisfied = cannot decide if the employee has to be fired).

(Some french journalist called this two ruling a triomphe de la laïcité à la française.)

 

SO : direct discrimination is non existent providing all members of staff are subject to the same rules /company policy AND accordigly are treated equally.

=> As a result, employee’s rights are not breached when their employment is terminated since they fail to comply with such rules => Warning : rules have to be explicit, not implicit.

 

In Scotland, US, Canada (in the UK but it’s autonomous)= approves Hijab as official uniform for police (Hijab and on top of it, the uniform = nobody cares)

In Canada, the Sikh Remembrance day Ceremony (Indian ceremony ?) = mounted police can wear an uniform (very english uniform) and the Sikh symbol on top of their heads.

 

B : Jehovah’s Witnesses and Blood Transfusions

 

When religion can be harmful for a patient, notably with blood transfusion (there is a tag who says to not do blood transfusions).

 

FOR CHILDRENS :

In France, a doctor has to try to get the consent of the patient but if he does not agree, he can override the patient’s wishes in order to protect his life = blood transfusion anyway => decision of the Conseil d’Etat, 2001.

In the UK and Canada = children whose parents refused transfusion

=> in the UK, in 2014, a judge ruled that the objection of parents can be overridden by the doctor.

=> in Canada, in 2009 (supreme decision), minors can’t be forced to go under treatment because the state has an interest in protecting the child.

 

The Crown of England is acting as a ward to protect the children : has the duty to not leave children unprotected.

 

FOR ADULTS :

2 women from Canada died when they were given birth because of complications. They refused blood transfusions.

=> The Quebec Coroner said that they were adults so they can choose to not go under treatment, even if that causes their lives.

 

SO we can see a difference in how the states handle religious wishes when a treatment is needed : for minors, the states protect them but for adults, they do not protect them because if they do not want to receive treatment because of their religious background, doctors can’t force them.

 

Do Laws sometimes violate Religious Freedom ?

Surprising position of a Clergyman’s in 1973 => Spencer Parsons : leader of a group who fought for abortion’s rights = “Roman catholic Church officially regards abortion at any moment after concption as murder. This is a theological and not a biological or legal statement of fact. It is a judgement not shared by most people in the nation. Yet the Church presumes to force its moral judgements upon the community by law.”

=> Revolution !!! because it was said during a very conservative era = anti abortion laws.

In 1973 = Supreme Court declared that the right of abortion is constitutionnal.

 

Using Religious Beliefs to justify doing something illegal

In 2014, in the US, same sex marriage was legal in the majority of the States BUT many states of the South (very conservative) considered same sex marriage illegal. The state of Colorado was in between to become legal by court decision = it was not a statute yet so not very legal. It was one year before the ruling of the US supreme Court.

 

One year later in 2015 (june, 26) = rulling from the US suprem Court (federal autorities) : Obergefell vs Hodges = same sex marriage bans are unconstitutional under the 14th Amendment = everybody should be treated the same way.

As a result = same sex marriage became legal throughout the entire USA = not just state by state.

 

The Colorad Baker : Masterpiece Cakeshop vs Colorado Civil Rights Commission = Us suprem Court rulling in 2018 = Can a business discriminate based on religious beliefs = the baker taht the State of Colorado violate his religious beliefs because he said that homosexual weddings are wrong and refused to serve them.

=> The US Supreme Court ruled about (not about can a business discriminate) = the court decided to revert the Colorado decision because it claimed that he had been shown that the CCRC had been shown to display hostility to religion. Because of 1 member of the Commission (comparison slavery to holocaust), the Court decided decided that the commission had no religion neutrality = not supposed to take side SO the commission violated the freedom of speech of the baker => free Exercise Clause of the 1st amendment.

 

SO mister Jack phillips (the baker) won the case BUT the Supreme Court did not rulled about the discrimination because of religious beliefs SO scope limited so it was not a landmark decision.

=> They did not want to open a can of worms, to dodge the issue.

 

The French Pharmacists = Pichon and Sajous vs France, 2001, ECtHR => In 1995, a business owner (pharmacy) refused to provide services (sold contraceptive) to 3 women because of religious beliefs SO the women filed a complaint.

=> They refused to serve contraceptives because the refusal was motivated by the fact that the law at the time did not require them to sell contraceptives. After losing the case 2 times, they bring the issue in front of the European Court. The Court ruled by saying that freedom of religion protects a person’s private sphere of conscience but not any public conduct inspired by that conscience

SO as long as contraceptive are legal and you have a prescription from your doctor and that the pharmacy is the only place where you can find contraceptive SO refusing to sale them because of religious beliefs is imposing your religious beliefs on someone else = it’s a public activity so they are obligated to serve the women because their private beliefs do not have to interact.

 

Conclusion : “We hold these truths to be self-evident that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are life, Liberty, and the pursuit of Happiness” = Thomas Jefferson

 

Some people want to replace freedom of religion with freedom of worship because freedom of Religion is about being allowed to live and act according to one’s religion and according to one’s conscience.

Religious freedom allows freedom to “exercise” religion in the public square. Ir does not confine religious worship to a home or a church.

Those are complicated questions = no answers.

 

(friday the 19th = changement in zoom protocol → expect an other link available on ametice)

 

Affirmative action : Race / minority / african american / black …

 

Situation where two students (one caucasian (non hispanic white) and one african american) are applying to a university but there is only one spot available : one can register and the other one will be rejected.

=> How can admission officials decide who gets in and who not ?

→ they will first consider the academic success (scores on the exam before) / they are extracurricular activities (activities beside school) = normal reaction.

In the USA, race or gender (male, female) are also consider for admission

 

Minority students are very low in college and it is not representative of the american society who is qualified by some people by melting-pot or kaleidoscope.

 

To balance out the lack of diversity = affirmative action policies exist whose goal is to regress segregation, to have more equality, more diversity in higher education.

BUT they are opponents to this program = they say its unfair, its an other form of discrimination : more difficult for white students to go in college. So opponents vs proponents.

Sports in general are also considered very important : promote the image of the university (students who have difficulty writing can go to university if they are good at a sport like american football).

 

Terminology : important => race, ethnicity … = change when time progresses to adapt to the current era.

=> Race profile of 2010 (studies of 2021 not available) = first largest group is the white people, then we have the hispanic american group (who grow very fast), then the third largest group is the african american (in the past, the term most commonly used was colored people but nobody use it today. WARNING : negro in english is not insulting but nobody use it) and the fourth largest group is asian american.

 

Historically, afro americans benefited by the affirmative program BUT today, asian american complain that black people are too much helped by the programm.

 

A : Affirmative action as a major legacy of the Civil Rights era :

 

1 : Overview of racial discrimination in the USA

 

American civil war : 1861-1865 = almost 600 000 people were killed and many were wounded.

Two sides = South (Dixie) vs North (Yankees)

South : plantation, products like cotton, tobacco, sugarcane => states in red on the map (Mississippi, Texas, Georgia …)

North : industrial wealth => states in blue.

The war was about freeing the slaves who were in the South = BUT it was more than that : it was also about economic development

Problem for the South : when the North says they want to free black people, they will lose manpower and pay them so it will destroy the economy of the South. If their economy is destroyed, they will also lose influence in Washington SO it was unacceptable for the south.

 

On the map, the states in grey were just territory : they were not organsides : no legal system for example = they depended on Washington.

=> They did not participate in the War.

 

This conflict came from the triangle trade who began in the 16th century to end roughly in the 19th century.

=> Ships went to Africa with a lot of manufactured goods where they exchanged them with man power (captured or sold) then they went to America where the slaves were sold to free labor for the owner to produce raw materials who then were sent back to Europe for profit.

Some people estimate that they were 12.5 million slaves who were sent to America.

France imported around 1.4 million slaves.

 

Slavery : census study (recenssement) of the 1860 = interesting to see that there was less slaves in the upper south states and even less in the border states => the population decrease when you travel up north.

=> “to be sold down the river” : when a slave was sold to a new owner, he travelled down south so he had less chance to escape during the war.

 

(They were slaves in the border states who did not fight for the south : Kentucky for example.)

 

After the war : the South lost the war and finally, the slaves were liberated.

=> the Emancipation Proclamation and the 13th amendment (1865) → reconstruction amendment = (there was also the 15th amendment about the right to vote).

“neither slavery nor involuntary servitude expect as a punisgment for crime whereof the party shall have been dully conflicted shal exust within the United States, or any place subject to their jurisdiction”

=> Involuntary servitude : refers to indentured servants => white people who sign a contract for many years to work without being paid = europeans who do that to cover the cost of the travelling between Europe and USA = they were treated like slaves → some died because of abuses from their masters.

 

Next reconstruction amendment = The 14th amendment(1868) : include the equal protection clause = Section 1 : “all persons born or naturalized in the united States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the priviileges or immunities of citizens of the United States (no discrimination law), nor shell any state deprive any person of life, libertu or preopoerty without due process of law. Nor deny to any person within its jurisdiction the equal protection of the laws.”

 

To sum it up : South and North (with Misery and Kentucky who fought with the North despite being sleeves states)

=> On the West : new Mexico was a new territory BUT he had plan to develop slaves in the state : North was against because they wanted to let the slevery in the North. The South did not agree because they wanted the new territory to become slave states so they could have more influence in Washington.

 

De jure, segregation was abolished BUT de facto, it continue = KKK develop considerably following the war and the reconstruction

=> Lynchings of black people after the war was massive (more dangerous to be a black people after the war than during the slavery).

 

Plessy vs Ferguson, 1896 = the separate but equal doctrine and Jim Crow laws.

=> In Louisiana, the legislature passed a separate car (in a train) act = de jure, the black citizens were supposed to travel separated from the white (different cars). Homer Plessy was ⅛ black but he was considered black so when he decided to travel in the white car, he was arrested so he decided to challenge the law.

=> The Supreme Court ruled that it can’t control social problems = as long as the travel was just in the state of Louisiana, it was not unconstitutional SO the separate car act was ruled constitutional.

 

The separate but equal doctrine was born from this case so a door opened for the states to make segregation’s laws = they were called Jim Crow laws

=> Separate but equal : fantasy because no one was equal.

 

After that, people resisted but from both sides = black people were marching in the street to contest the segregation law. White people were also marching but to defend segregation law

 

Segregation in public schools : Brown vs Board of Education, 1954 => was about public education.

The NAACP (National Association for the Advancement of Colored People) took the case to the Supreme court of the USA and this time, the Supreme court considered that people are never equal if facilities provided were of lower quality than facilities provided for others. They based their decision on the fact that education was very important, more important at the time because of WW2.

=> Landmark ruling = overturned the Plessy ruling.

 

Problem in the south : law who obliged people to pay to have the right to vote :

=> Under pressure from civil rights leaders like Rosa Parks, Martin Luther King or the movement Black Panther = the 24th amendment passed and it abolished the poll tax abolished = it was done by Kennedy.

After Kenedy = The 1965 Civil Rights act by President Lyndon Jhonson took measures to stop ongoing segregation : it followed the brown decisions = federal law to ban any segregation law which was used by the states.

=> people disagree

 

Integration and affirmative action : cross district busing system → yellow bus : allow black people to go to school where there were practically only white people.

=> again : people disagree => example : Anti-busing protest in Boston city hall, 1976

 

The 1964 civil right act : The civil right leaders were Rosa Parks (refused to change place in the bus). MLK, Malcolm X (much radical).

=> They defended black integration and organized boycotts, marches, and demonstrations. In 1966, the black panther party developed. They were different and accepted violent actions. The name was BPP for self-defense because there were shooting back to the police, lynching.. they did’nt last long because they were in a lot of trouble with the law.

 

As a result of all these actions, the authorities finally chose to integrate black into all aspects of civilization like in the USA. The 24^th amendment about poll tax was abolished and gave access to vote. Because back then, black people were poor and couldn't pay for votes.

 

President Kennedy was assassinated, he never had the occasion pass the Civil rights act because of the parliament filibustering methods.

 

Swann v. Charlotte-Mecklenburg Board of Education, 1971.

Board of education = government agency in charge of education.

The Charlotte-Mecklenburg school system is the 43^rd largest in the Nation. It encompasses the city of Charlotte  and surrounding Mecklenburg County, North Carolina.

June 1969: 24 000 black students in North Carolina where 21 000 were in Charlotte. Two-thirds of those 21 000 (≈ 14 000) attended exclusively black schools.

 

This case was dealing with the busing of students to promote integration in public schools. The Supreme Court held that busing was an appropriate remedy for the problem of racial imbalance in schools and that the federal corps had the discretion to include busing as a desegregation tool to implement balance.  So, the busing system is legal, and the SC is in favor of it.

 

2 : The emergence of affirmative action

 

JFK and Executive Order 10295 (1961) : JFK introduced the notion of affirmative action.

=> His executive order was designed to redress persisting discrimination and to give equal opportunities in the  workforce, not just college.

It is about taking “affirmative action to ensure that applicants are employed and that employees are treated during  employment without regard to their race, creed, color, or national origin”.

 

Lyndon Johnson and Executive Order 11246 (1965)

The JFK executive order was followed by Johnson’s executive order. Johnson followed his steps and wanted to  implement what JFK could not because he was murdered.  He sent a lot of troops to Vietnam.

The executive order was about affirmative action in order to fight de facto segregation.

“This is the next and more profound stage of the battle for civil rights. We seek no just equality as a right and a  theory, but equality as a fact and as a result”

It requires contractors to “take affirmative action to ensure that applicants are employed, and that employees are  treated during employment, without regard to their raced, color, religion, sex or national origin”. It was supposed to be a temporary remedy, not permanent, just an equal level plane field.

 

We need to understand that the TWO executive orders was first a government remedy but it was supposed to be a temporary remedy not permanent. Enough time for society to have a level playing field. To give everybody the same opportunities. Not a one group privileges.

 

B : What is affirmative action ?

 

1 : Définition

 

So, at first it was about employment and educational opportunities for minorities (African Americans, Latinos,  Asian Americans), but then it was extended for women, and more recently transgender, disability, ethnic origin,  age…

This has to be set up by active measures.

 

Affirmative action policies in education: legal challenges and decisions

Many universities implemented policies and programs, especially the policy of quotas and percentage which had  some success until the white population more and more believed that it was reverse discrimination. In the late 80’s they wanted to challenge the quotas and many cases were taken to the Supreme Court.

 

Regents of the University of California v. Bakke, 1978

In the University of California, there were 2 admissions programs, a regular and a special. Allan Bakke, a white male, applied to a medical undergraduate program (la licence en FR) and was rejected from  the regular admissions program because he didn’t fit the quotas system. At the same time, he noticed that minority applicants with lower grade point averages and testing scores were  admitted under the specialty admissions program. He considered himself better than them. He sued the university for the  violation of the equal protection clause of the 14^th amendment.

The Supreme Court ruled that quotas may not be used if white applicants are denied a chance to compete for  those places.

 

Quotas programs were outlawed because it was a violation of the 14^th amendment. 

The concept was not a question about the Supreme Court, it was a quarter system reply by a point system.

 

At the same time, it was affirmed the constitutionality of considering race as a factor in college admission  decisions. 

Quotas = no. Race = yes. 

Since using quotas became impossible, the university adopted a point system which is a list of points that the  applicant should have, and his score determines his admission. 

 

Grutter v. Bollinger and Gratz v. Bollinger, 2003

2 white women (Jennifer Gratz and Barbara Grutter) with very good academic achievements were denied  admission in law school at the University of Michigan.

The university was using a machine system of 150-point scale, so the university ranked all the applicants. They needed a minimum of 100 points to be admitted. 

The particularity was that all underrepresented students based on ethnicity (black, native…) automatically  benefited from a 20-point bonus, so they just needed 80 more points.

The 2 women argued that they faced reverse discrimination and a violation of the 14^th and the 1964 Civil Rights  Act. 

 

They sued the President of the university (Ballinger) because the factor favored minorities who were granted a  better chance of admission. 

These cases were taken to the Supreme Court.

 

Gratz: the 5 to 4 ruling (very close) said that race can be one of many valid factors in selecting students because  it diverse the student body.

Grutter: the 6 to 3 ruling said that the university could not use a point system to favor minorities. But could  consider race into an easier way and not as a predominant factor.

 

They outlawed the point system. So, quotas and points systems are outlawed. But considering race in admissions is still constitutional.  But after the 2 cases, Michigan voters enacted a prohibition of race-based admission (it only concerns Michigan’s  Constitution).

 

Fisher v. University of Texas at Austin, 2016

The University of Texas used an admission system based on 2 components:

the ten percent law: the top 10% students to graduate from high school were automatically granted admission  into 1^st year of college (freshman). 

The rest was a combination of academic performance and personal achievement index. It included race as one of  the factors.

 

Abigail Fisher was not in the top 10%. She was denied admission as a freshman.

She sued the university because she thought that introducing race in the holistic global review process disadvantaged her referring to the 14^th amendment. 

 

The Supreme Court rejected her claims because race as one factor among a huge list of criteria is acceptable.  Obama welcomed this ruling.. He was a proponent of affirmative actions. He said:

“I’m pleased that the Supreme Court upheld the basic notion that diversity is an important value in our society. We  are not a country that guarantees equal outcomes, but we do strive to provide an equal shot to everybody”. Obama imagined a guideline and race-based discrimination legal help.

But the factor of race tends to disappear more and more in admissions. The idea of the petitioner is to strip affirmative action of its power and efficiency. 

 

C : Affirmative action « today »: Trump reverses Obama’s policy on affirmative action in schools

 

In July 2018, the Trump administration abandoned the Obama administration policies, including the guideline that  encouraged schools and colleges to promote diversity. They want race blind admissions, simply based on the  grades.

After these declarations, many universities’ spokesperson resisted (= to withstand) and planned on continuing to  use this factor but in different ways such as socials criteria and poverty criteria.

At the same time, in the Supreme Court, the new justices Gorsuch and Kavanaugh who were directly appointed by  Donald Trump. Kavanaugh is very conservative.

 

Students for Fair Admissions v. Harvard, 2014 : Harvard is a very prestigious private university, considered to be one of the best in the world. 

=> This case concerned Asian Americans students.

 

Harvard was systematically excluding Asian American students because they maintained a place for African  Americans and other minorities.

 

Saving a spot for African Americans v. selecting from a pool of qualified students.

=> They formed an organisation named Student for fair admission which was rejected from Harvard. Edward Blum, was a conservative legal activist who opposes laws involving race and ethnicity. He helped the association to sue Harvard.

 

But the top 8 private universities filed a joint brief and supported Harvard. They argued that in this case, a ruling  against Harvard would hurt diversity and considerably affect affirmative action’s future. 

 

New Supreme Court justifies : Justices Kavanaugh and Gorsuch and Amy Coney Barett (not good things for démocratie)

 

D : Affirmative action limited by state law: the example of California

 

More and more universities are limited by state laws (not federal) forbidden affirmative action. Today, 8 states in the USA have banned it and California is one of them.

Proposition 209, 1996

=> The proposition of banning affirmative action was voted in 1996. It led to the amendment of the Constitution of  California.

Instead, California promoted race-neutral solutions to select students.

The top 9% high schoolers are granted admission in a Californian college. 

 

Socioeconomic considerations

To counterbalance this proposition, universities decided to introduce socioeconomic factors. To substitute for the disappearance of affirmative action, low-income students would be given preference. That  concerned a lot of black students. It’s a very indirect reintroduction of affirmative action and creating racial  diversity. Indeed, poverty leads to inferior public schooling.

 

E : Affirmative action as a worthy pursuit: the example of Columbia University

 

In Columbia University, minorities are very well represented. The university is very close to Harlem where there are  a lot of blacks and Hispanics. 37% of them are expected to be accepted by 2021.

Affirmative action increases in Columbia University because diversity is a purpose.

 

Bollinger, the ex-President of Michigan University, now President of Columbia University, said: “It’s the responsibility of a great institution to try to help to address those injustices. Secondly, it just makes  complete sense to prepare your students for a world that is profoundly diverse”.

 

CONCLUSION: IN 2010 THE MICHIGAN STUDENTS’ SCORES ON THE ACT OF COLLEGE ADMISSION TEST SHOW THE BLACK LARGELY UNDERPERFORM THAN  THE WHITES, THEN THE HISPANICS TOO. BUT ASIANS ARE BETTER THAN WHITE BUT LESS ADMITTED THAN WHITES.

 

International and European migration law

 

Introduction : a timely and touchy issue / hot button issue

 

In USA

TRUMP was elected largely on his position about immigration with Mexico, and people were shooting « build the wall » at meetings. He decided, then, to have a budget, voted from the government, but the Senate decided to block the budget: so a major shut down. Everything stops because Congress refuses to vote on the federal budget, so government agents were not paid during this period (35 days). Everything shut down because the Senate refused to vote on the budget for this wall.

 

The second major from TRUMP was the travel ban = executive order in 2017 to ban access to the USA for the citizens of some countries (Sudan, Libya, Syria, Iran, Iraq, Somalia, Yemen) and was upheld.  

 

In Australia

Australia decided to offshore the treatment of migrants in Australia. Some migrants never entered Australia, because they were transferred to islands in Pacific Ocean like Nauru (most famous). These people were living limbo for some year.

It was about offshore processing, and a lot of people criticized this. So refugees were kept in detention centers. A lot of people stand for 4 years, and 80% of refugees were diagnosed with post traumatic stress disorder (PTSD) with a lot of suicides.

            Since January, 123 refugees are still on the island, but since 2013, 3127 refugees have been sent to Nauru or Papua New Guinea.

Australia has been accused of turning Nauru into a business, turning this island into a ‘client state’. Very tiny  island, where people are waiting for something, they don't even know what.

Some refugees protested. The case of Omid, a refugee who comitted suicide by fire cause he has been on the island for 3 years.

 

All of this happen in complete violation of the 9th Article of Universal Declaration of Human Rights, based on ‘Ban on arbitrary detention’

« 1; Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law » -> but with law ? Cause on top of that australia made a contract with other countries to turn this Island that way; business.

« 4. Anyone who is deprived of his liberty...cf internet » -> so in violation of universal declaration, but not in violation of a specific law.

 

In Europe

            In Germany 2015, Merkel decided to welcome more than 1 million of syrian refugees. So a historic move which shocked a lot in Europe. But this decision was followed by a deal between Germany and the EU to make Turkey a buffer zone. This agreement was signed in March 2016, and today, it’s still going on. Now, Turkey has 3.7 millions syrian refugees and a lot live in camps along the syrian borders.

 

            Brexit occurred in a fear crisis of immigration. So they voted for Leave because they were afraid that: staying in Europe would increase immigration they fear.

 

            Italy was also hit by a wave of immigration: so the idea was to pass a deal with Libya (difficult cause the government is not stable: failed state). Deal signed on 02/02/2017 «memorandum  of understanding ». So paid the border forces of Libya to block the wave immigration and prevent them from crossing the sea: Malta Declaration . Apparently it works. So they gave the countries boats, to give some materials to cross guards of Libya. In 2017, 20.000 migrants were caught by coast guards, so it works.

 

            The government of Belgium failed in 2018 UN Global on Migration. The Flemish nationalists opposed the compacts and left the government.

 

            Visagrad 4 is a group of 4 countries: Poland, Hungary, Czech Republic and Slovakia => gather together to oppose the european sources on relocation of migrants , with carters. In Hungary the Prime minister is very conservative so quite opposed to migrants.

 

Part 1 : Definitions and legal framework

 

Migrant = International Organization for Migration (IOM) with 172 countries members defines a migrant as « any person who is moving or has moved across an international border or within a State away from his habitual place of residence, regardless of the person ’s legal status;whether the movement is voluntary or involuntary; what the causes for the movement are, or what the length of the stay is ».

 

Refugee = 1951 Refugee convention « someone who is unable or unwilling to return to their country of origin owing to a well-founded fear or being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion ».

Today: 26 million refugees globally. Half of them are children. 85% are hosted in developing countries.

            Difference with migrants, because not all migrants are refugees.

 

Asylum seeker = an asylum seeker is someone whose request for sanctuary has yet to be reprocessed. Every year , around 1M people.

During mass movements of refugees, usually as a result of conflict or violence, it's not always possible or necessary to conduct individual interviews with every asylum seeker who crosses a border. These groups are often called ‘prima facie’ refugees.

Source United nation High commissioner refugee

 

International Immigration law = international migration law « Although there is no comprehensive legal instrument at the international level that establishes a framework for the governance of migration, a set of legal rules constrain, regulate, and channel state authority over migration. Such rules – which have been created through state- to-state relations, negotiations and practice – are enshrined in multilateral and bilateral treaties, non-binding instruments, or have become part of customary international law. »

« The current legal framework is scattered throughout a wide array of principles and rules belonging to numerous branches of international law (including refugee law, human rights law, humanitarian law, labour law, trade law, maritime law, air law, criminal law, nationality law, consular and diplomatic law...)

 

European Migration Law = 2 main themes :

The first one is the area of free movement  Article 77 TFEU. - common travel area-

common immigration policy Article 79 TFEU « areas in which the EU can act. The EU may adopt

 

rules relating to the conditions of entry and residence, the definition of the rights of 3rd country nationals residing legally, illegal immigration an unauthorized residence and combating human trafficking ».

Also, the working age population will fall by 50M

 

European Migration Law = The Dublin III regulation 2014

defines which state has the obligation to evaluate the asylum request presented by the people who arrive in Europe.

the newcomers are not allowed to choose the state where the are to present their asylum request

one and only one member state is to examine the request usually the first country the person arrives in and where he-she is identified by local authorities: will become the responsibility of this country

 

Limits:

person who arrived in the South, if they wanted to reach an other country, the needed to go trough, and not being controlled by national authority

han accorded international protection by a state the person is obliged to live in in that country

the current boundaries of the European Union do not allow for the application of the principles of mutual recognition and the beneficiaries of said protection are not granted.

 

The New Pact on Migration and Asylum sept.2020

°Aims to integrate the asylum procedure in overall migration management, liking it with prescreening and return while, also covering the management of external borders, stronger foresight, crisis preparedness and response coupled with a solidarity mechanism and external relations with key 3rd countries  of origin and transit

Commission recommendation: develop complementary legal pathways to protection, such as resettlement and other forms of humanitarian admission such as community sponsorship programs, but also pathways linked to education and work.

For attracting skills and talent to the EU, the New Pact proposes developing EU  talent partnerships with key partners countries, finalizing negotiations on the Blue car directive

It further proposes a Skill and Talents Package which includes a revision of the long-term Residents Directive and a review of the Single Permit Directive , as well as setting out the options for developing an EU talent pool, which would serve as an EU-wide platform for international recruitment of third country nationals.

 

SO, we try to unite the countries to know how to deal with refugees, instead of everyone deciding on their own.

 

Part 2 : Global migration trend

 

The world is complex : a lot of people move = a lot move internally (not necessarily outside internationally).

 

2005- 2010 concerning europe : 2.5 million moved out in this 5 years period : a lot came from africa, latin america, south Asian

 

First-time asylum applicant in the EU-27 (2019)

 

total applicants : 612 685

For the first time in Europe : for 1 million residence in Europe, it’s only 1371 people

 

Country of citizenship of applicants :

Syria : 12%

Afghanistan : 7%

Venezuela : 6%

 

Map of 2016 : revealing that the vast majority wanted to come in Europe by Italy and Greece.

=> Not so many from Spain.

Number of people who died : 4 699 dead or missing persons.

 

Population of Europe : 747 000 000

Yearly change : 415, 398 (0,12%) = little increase of population → population in europe is stable

Migrants : 1 361 000

Europe : is an aging continent : median age : 42,5 years => fairly old.

In the future, the idea is in 2030, it is expected that the number of migrants who come to Europe is 1 000 000.

 

Global Trends

 

total population in 2020 : 7.8 billion.

Internationally, there were 280,6 million = in relation with the population of the world, it’s not many.

The international migrant stock as a percentage of the total population is3.6%

Difference in the share of migrants in the total population between 2000 and 2020 : 0.8 (might be pics in the period but it's not a big number).

 

The total population projection in the world : expected to be 9.7 billion in 2050 and some specialists said that in 2100, the population of the world might be 11 billion.

 

Internal displacement : we're gonna discuss people who move in the same country (majority).

 

In the world in 2019, around 33,4 million were newly displaced in their own country :

8.5 million due to conflict

24.9 million due to disasters

The total migrant population is estimated at 760 million internal migrants => Shows that despite of the difficulty they face, they try to stay in their country

 

The causes are :

Disasters : majority is weather related (In Asia for example, the period of Monsoon) but there is also floods, storms like cyclone, wildfire (but this is a minimal cause), earthquake, volcanic eruption ...

Conflicts / violence

 

New displacement by conflict and disasters in 2018 : not surprisingly, central africa is particularly hit by armed conflicts, but Asia (Japan) and America (United-States) are also touched but there are touch by disasters.

 

 

 

Climate refugee : a major legal challenge

 

The consensus seems to be that by 2050 = 200 000 000 or a billion will become climate refugees in the future.  

 

Part 3 : Sources / Principles

 

Universal Declaration of Human Rights, 1948 (following WW2).

 

The right to life = Art 3 =>

“Everyone has the right to life, liberty and security of a person.”

Ban of arbitrary detention = Art 9 =>

“No one shall be subjected to arbitrary arrest, detention or exile.”

The right of freedom of movement = Art 13 =>

“(1) Everyone has the right to freedom of movement and residence within the borders of each state.

(2) Everyone has the right to leave any country, including his own, and to return to his country.”

The right to asylum = Art 14 => everybody has the right to seek and enjoy the asylum of persecution, it's impossible to invoke this right in legal prosecution in non political crime.

“(1) Everyone has the right to seek and to enjoy in other countries asylum from persecution.

(2) This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.”

The right to a nationality = Art 15 => recognized in many legal instruments at the international level = ex : convention on the rights of the child

“(1) Everyone has the right to a nationality.

(2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.”

 

The 1951 Refugee Convention

 

What is important for any international treaties is what is its scope of the convention = the scope can be defined by how many countries ratified the convention.

=> The 1951 refugee convention was ratified by 145 parties : that's a lot.

 

This convention defines the term “refugees ” and outlines the rights of the displaced as well as the legal obligations of States to protect them.

 

BUT the Core principle of this convention is the non-refoulement = means that a refugee can not be returned to a country where they face a threat to their life or their freedom. => Its now a principle of the customary international law

The high commissioner for refugees serves as the “guardian” of this convention.

 

The Migrant Workers Convention (1990)

 

It was ratified by 46 (the convention is very specific so not many countries are keen to sign or ratified this type of convention).

=> This convention recognizes the human rights of migrant workers and promotes their access to justice as well as to humane and lawful working and living conditions (important because these rights are not respected in every country).

= Set out provisions to combat abuse and exploitation of migrant workers and members of their families.

 

What really works but has a very limited scope : a bilateral agreement (easier for the countries especially for countries who share borders) → There were 176 bilateral agreements in 2004.

There is also the regional agreement.

 

The GCM

 

GCM : Global Compact for (safe, orderly and regular) migration : latest and more spectacular convention on the subject.

It was developed and signed in 2018 = fortunately, it’s a non binding agreement (not legally necessary to obey or follow)

 

There are a lot of very important principles :

The GCM is based on the international human rights law and explicitly aims at upholding the principles of non disciriminatuo and non regression (the standard of protection should never be a regress)

States endorsing the compact commit to ensure human rights are respected and applicable to all migrants (it’s global, no distinction because of situations)

For instance, the compacr will work to eliminate all forms of discrimination, promote access to basic services to migrants, and prohibit collective expulsion and return of migrants to their country when there is a rela risk of death, torture or other cruel inhuman and degrading punishment

 

The scope of this compact is :

152 countries voted in favor of the reaction to endorse it (Waouh it’s a lot)

Israel, The USA (problem because they tend to give credibility to a compact so if they are against, the GCM lose credibility), Hungary, The Czech Republic and Poland voted against it

12 countries abstained from the vote (including Australia and Italy).

 

The core objectives : some examples :

Collecting and using accurate and anonymized data to develop evidence-based migration policy = point is for the states to collect data (accurate) and also it can work only if the migrants accept to cooperate = cooperate if their information is anonymous.

=> Point is to collect accurate dates for the creation of future migrant’s related policies. 

Ensuring that all migrants have proof of identity

Enhancing (valoriser) availability / flexibility for regular migration

Encouraging cooperation for tracking missing migrants and saving lives

Ensuring migrants can access basic services and making provisions for both full inclusion of migrants and social cohesion.

 

Even doh the GSM is recent : it faced criticism :

Austria consider it could undermine the sovereignty of a country

Legal and illegal migrants are granted the same rights, notably to welfare and basic services = no distinction between legal and illegal migrants

Detention of illegal immigrants would be made far more difficult = What the police is supposed to do (meh)

The compact states that migration “does have a positive effects” = that's what some countries believe and they don’t like this mention

 

Conclusion :

 

Is Europe denying its own core values ?

One terrible episode is, in 2015, a 3 years old boy from Syria drowned because he was leaving his country with his family on a boat.

It’s still happening today = an other child died in 2020

 

a lot of migrants try to land in Lesbos (Greece) to go to Europe → cause a lot of crisis ⇒ ex : some people from Lesbos don’t want migrants to come on their island. → Recently, a shelter for refugees was born on Lesbos but no one knows how this happened = generated a lot of tension.

 

Should we categorize migrants ? Is there a point to that ?

=> Economic migrant ? Skilled worker ? Climate refugee ? Political refugee ? etc …

 

In France, recently (it’s still happening today) => Cedric Herrou and the principle of fraternity (à completer)

 

Part 4 : International law

 

What is international law, its scope and milestones in history.

 

Definition :

 

International law : differents names => public international law or law of nations

=> it’s a body of rules, norms and standards = they apply in sovereign states and other entities that are legally recognized as international actors.

 

Term appeared for the first time thanks to Jeremy Bentham = he made some quotes like

every law is an infraction of liberty” = we need to give up liberties to have laws in order to live peacefully

“the question is not can they reason nor want to talk but can they suffer ?” = important for slaves states : justify their actions by saying that slaves are not human => Jeremy Bentham said that if they can suffer, they have to have protections

“The power of the lawyer is in the uncertainty of the law” = they are always situations that cannot be governed by existing law so the lawyer has to decide the principle they will use in the courtroom.

 

Two approaches of this definition :

Traditional definition : definition of sovereign state => to qualify as a subject, a state has to be sovereign = it need a territory (with borders), a population, a government and the ability to engage in diplomatic of foreign relations

=> If a state have all of this conditions : they are subjects of international law (WARNING : US states or French departments are not legal subject of international law)

Contemporary definition : international law confers rights and obligation on intergovernmental international organizations and events on individuals.

=> Example : the United Nations

 

Point 1 : International law is not simply a collection of rules or principles => it’s developing really fast = development of principles and practices => too bad they are not directly binding.

Point 2 : International la provides normative guidelines as well as methods mechanisms, and a common conceptual language to international actors

Point 3 : The study of international law, or public international law, is distinguished from the field of conflict laws, or private-international law, which is concerned with the rules of municipal law (as international lawyers term the domestic law of states) of different countries where foreign elements are involved.

=> Sometimes, domestic laws conflict with foreign elements = it’s private international law. In this course, it’s about PUBLIC international law.

 

The scope :

 

No system of courts with comprehensive jurisdiction in international law

The ICJ’s jurisdiction in contentious cases is founded upon the consent of the particular states involved

=> If the state does not consent to grant some of their sovereignty, the court cannot do something about cases related to that state.

No international police force or comprehensive system of law enforcement, and no supreme executive authority.

The UN security council can if necessary authorize the use of force, but only in specific and limited circumstances (a prior act of threat of aggression = can trigger use of force granted by the security council)

Enforcement actions can be vetoed by any of the council’s five permanent members (China, Russia, US, UK, France)

No standing UN military : the forces involved must be assembled from member states on an ad hoc (Destiné expressément à un usage.) basis

What happens when a country decides to violate international law ? it draws too much attention => states generally are careful to ensure that their actions conform to the rules and principles of international law = if they don’t, it can backfire.

The rules of international law are rarely enforced by military means or even by the use of economics sanctions

The system is sustained by reciprocity or a sense of enlightened self-interest

What happens when a country decides to violate international law (like a violation of a treaty) ? They lose international credibility because the breach of the international law can cause harm to the original violator by the fact that other countries may be induce to breach other treaties because of the original violation (ex : Bachar Halassad and his want to use chemical weapons)

Consistent rule violation would jeopardize (endanger) the value that the system brings to the community of states, international organizations, and other actors. Certainty, predictability and sebs of common purpose in international affairs derive from the existence of a set of rules accepted by all international actors

 

History of international law

 

Primitive form of international law : 2100 bce (before the common era) = treaty between the rulers of Lagash and Umma in the area of Mesopotamia. It was one of the oldest form of bilateral agreement.

In 1238 bce : it was a bilateral agreement between Ramses II and Hattusilis III, king of the Hittites.

The jus gentium (law of nations) from the Romans : system of laws to govern the status of foreigners and the relations between foreigners and Roman citizens. In accord with the Greek concept of natural law (a system of right or justice held to be common to all humans and derived from nature rather than from the rules of society, or positive law) which they adopted, the romans conceived of the jus gentium as having universal application

After 500 years of warring following the collapse of the western Roman empire (5th century ce), a group of nation-states emerged, and a number of supranational sets of rules were developed (they were tired to fight each other lol) to govern interstates relations, including canon law, the law merchant (which governed trade), and various codes of maritime law.

15th century (moment when european began to explore the world) : European explorers spread European norms throughout the world and broadened the intellectual and geographic horizons of westener Europe. The subsequent consolidation of European states with increasing wealth and ambitions, coupled with the growth in trade, necessitated the establishment of a set of rules to regulate their relations between them instead of killing them because of the competition for the exploration.

16th century ; the concept of sovereignty provide a basis for the entrenchment of power in the person of the king

=> It was later transformed into a principle of collective sovereignty as the divine right of kings gave way constitutionally to parliamentary or representative forms of government. 

FURTHERMORE, sovereignty also acquired an external meaning, referring to independence within a system of competing nation-states.

The dutch jurist Hugo Grotius (1583-1645) cut our theology from international law and organized it into a comprehensive system in “on the Law of War and Peace” in 1625.

=> he emphasized the freedom of the high seas (principle is still existing today), a notion that rapidly gained acceptance among the northern european powers that were embarking upon extensive missions of exploration and colonization around the world.

Expansionist and industrial 19th century : the notion of state sovereignty was reinforced by the ideas of exclusive domestic jurisdiction and nonintervention in the affair of other states = more and more problematic today.

20th century : impact of two WW → the resulting growth of international organization :

Ex 1 : The league of Nations, 1919 : primitive form of the UN

Ex 2 : The UN, 1945 = created by the influence of the USA (DeGaulle was not keen with that)

=> increasing importance of human rights at the international level

 

What happened right after WW2 : The Netherlands took all the wealth from Indonesia (mainly spices like cloves) = explain why Amsterdam is so developed today.

Story about the Dutch : no support from the international community so they gave up the colonization of Indonesia = indonesia is an independent country today.

Having become geographically international throughout the colonial expansion of the European powers, international law became truly international in the first decades after WW2, when decolonization resulted in the establishment of many newly independent states

The diverse cultural background of the states infused the european-dominated principles and practices of international law with new influences

 

Conclusion : an ever-expanding field

 

Impossible to conclude because it never ends.

=> Environmental issues (more and more concerned) have led to a number of international treaties, including agreement covering fisheries (1958), endangered species (1973), the ozone layer (1987 and 1992), biodiversity (1992), and global warming (starting in 1992). → The dialogue has been preserved

=> The establishment of the International Criminal Court (2002) with jurisdiction over war crimes, crimes against humanity and related matters marked a major step forward international law.

 

Territorial claims :

 

Introduction :

 

The world is complex : some parts of the world use complicated legal systems : In Asia, most of the legal systems are a combination of civil law and customary law and sometimes common law.

 

Territorial disputes are everywhere, all over the world => 19 of them are in Europe, 57 in Asia (largest amount of potential conflicts in the world), 29 in Africa …

Exemples :

Russia and Ukraine’s border are hotly disputed

1982 : Argentina invade the Falkland island = permanent source of conflict between UK and Argentina

=> The UK disagree with the invasion and they regained the control of the island but the irony is that the Argentina managed to sink 2 UK navy ships with french missiles (lol)

The Guantanamo Bay Naval base leased to the USA prior to the Cuban Revolution of 1959

Kashmir region disputed between Pakistan and India = one of the most disputed territory in the world

 

Regarding border’s disputes = Republic of Ireland (Eire) and Northern Island (belongs to the UK) = Lough Foyle stand between the two countries and the borders between the two countries were never defined SO conflicts.

 

Legal Grounds :

 

1993 = Montevideo, Convention on the Rights and Duties of States

=> It was an american matter = North, central and south america => 20 states signed it

It was the first time the definition of states in the international law was crystalised => the convention helped answer the question : WHAT IS A STATE

 

Article 1 of the Convention on the Rights and Duties of States

The staten as a person of international law should possess the following qualifications :

 a permanent population (can be difficult for some part of the world = example : Spain)

a defined territory : proper borders → delineating borders is actually complex in some part of the world

a proper government : has to be legitimate and represent all of the population =>  Syria = government do not represent ALL of the population

capacity to enter into relations with the others states = embassy or consulate actively represent a state as a legal person all over the world

 

Later on, the american convention impacted the rest of the world (Switzerland, European Union) = many states adhered to this definition of a state asit codified customary international law = at first it was customary but step by step, it became codified

 

Every small island defines an exclusive economic zone (EEZ) = France’s EEZ are all over the world : France ranked second (behind the USA) regarding territorial waters in the world.

 

The conflicts regarding EEZ are, for the most part, situated in the south china’s sea and in the east china’s sea

 

WHY SOME COUNTRIES WANT TO FIGHT FOR TINY ISLAND ?

 

Section 1 : Global context

 

A : China’s territorial claims in the south china sea

 

China claims those small islands but other countries of the area are also claiming these islands = source of conflicts.

 

B : Maritime silk road initiative

 

The silk road = china is really headbang on gaining control of the maritime silk road as much as possible = defining a safe maritime route

=> The point is to develop transport corridors between China and Europe but also with the middle east and parts of Africa.

 

If we zoom in on the area concerned = we have to understand that the shipping lane (or transportation corridor) is the busiest in the world = the amount of traffic in that area is phenomenal : every year, 50 000 ships minimum cross the strait of Malacca → the problem is very dangerous : piracy for example ... some ships vanished.

=> The ships are forced to take a very narrow passage and there is not much choice.

SO IT’S UNSAFE = chinese cannot accept this situation.

 

The second reason why the chinese want to control as much as possible, it’s because they want to drill gas and oil and they can do that only if they can control the EEZ = if they could have direct control of gas and oil (crude oil : pétrol non rafiné), their economy can drastically change.

 

The Johnson south reef :

 

little island at sea level => they were a short conflict between china and Vietnam in 1988 = china won (Vietnam did not stand a chance). After the battle : they took over the island and the built a naver base and tried to expand the reef = they wanted to show they are permanently occupied the island

 

The International community reaction : the permanent court of Arbitration (based in the Hague in the neverland created in 1899. The PSA is 121 states) said there was “no historical basis” for these claims and that China had no historic title over the disputed waters

=> China is challenging the relevance of the international law regarding territorial dispute that can weaken international law

 

The reaction of the other countries : they cannot unite (they failed) = ASEAN (association of Southeast Asian Nations) failed to react against the occupation of the small reefs by China = they failed to serve as role model for cooperation in the region = China tried to divide those nations.

 

The strategy of china is to isolate the nations in the area and to deal with them one by one = divide to conquer => apparently there are lots of gas and oil under the water so that prompt china to act.

SO FAR : ASEAN has not develop a unified military force

(we can reflect on the situation in Europe)

 

Alliances ?

 

The situation is complex because the countries are divided BUT today, more and more countries are signing very large agreement to work together = it’s happening all at once

 

The comprehensive and progressuve agreement for trans-pacific partnership (CPTPP)

It was signed in 2017 = everytime that a national agreement is signed by the countries, the next step is to ratify the agreement = the ratification is done by the countries themself

=> The CPTPP is not ratified by ALL the countries who signed it

Signatories : Australia, Brunei, Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New-Zealand, Peru, Singapore and Vietnam

=> The United States withdrew from the TPP on January 23, 2017 SO they had to change the name (explain why the name is so long)

=> China is considering joining = the top official of China made a statement in 2020 where they announced they are considering joining it.

The goal is to develop trade agreements between the countries : 13,4% of the world’s GDP (french PIB : Gross Domestic Product  combined) = very powerful.

=> In 2019, the members developed procedure and Code of conduct for the dispute settlement.

Regional comprehensive economic partnership (RCEP) = signed in the same time of the CPTPP => It's a free trade agreement

It was signed on 15, november, 2020

Main difference between CPTPP and RCEP : the inclusion of China (China was very proud to be in the agreement)

India, at the last moment, decided to withdraw following tensions with China

The members are the 10 asian’s nations including Indonesia = they are united in this agreement. There are also 6 other countries : China, Australia, Japan, South Korea, New Zealand and India who withdrew the argument.

The RCEP represents 29% of world trade and 38% of the world economy.

Criticism : this agreement will make the poors poorer and the rich richer

 

If we combined the 2, the two agreement overlap = 7 nations so far are part of the 2 agreements = can be confusing but the point is that its part of a very large power play and the long term objective is something else = develop the FTAAP (free trade area of the Asia pacific)

 

Section 2 : the senkaku-diaoyu island (Japan vs China) dispute : a case study

 

The area concern by the dispute : China and Japan

 

The islands are part of an area filled by oil and gas and the EEZ will help control a huge area

 

It triggers a lot of political activism by civilian = show that the government lose control of their citizens → it’s all about sovereignty

 

They planted flags on the island = some died doing it and and some chinese activists were captured by the Japan’s guards

 

Some conservative / nationalist in Japan protest against the Beijing’s government.

The chinese are doing the same thing.

 

The conflict between the two countries started before the WW2 in 1937 = very bloody conflicts who is still a touchy subject in both countries

 

Thanks to the agreement, the bilateral trade between the two countries can become the lead trade agreement in the world

=> Thanks to Donald Trump who declared the Trade war to China, the two of them began to communicate and they decided to strengthen their business relations

 

However, during that period, they were a series of military escalation between China, Japan and Taiwan = they were fighting with water cannon in the disputed area.

SO the situation may escalate.