What Laws Could I Enforce?

Public law is the area of law that regulates the relationship between the State and individuals. There are many different areas of public law. Each area prevents public bodies from doing certain things or requires them to do certain things, and provides consequences when laws are broken.

(a) Constitutional and Human Rights

(i) What are human rights?

Human rights are the rights and freedoms held by every human being without discrimination. Human rights protect our basic needs and freedoms.

(ii) Are human rights legally enforceable?

To take legal action based on human rights in your national courts, human rights have to be legally enforceable in your national legal system. Although human rights are universal at the level of principle, they may not all be recognized in a law that you can enforce.

Whether human rights are legal enforceable in your country will depend on your national law. If you want to find out if a human rights is legally enforceable, it can be useful to check whether:

• The right is protected in your national constitution or bill of rights (these are often called “constitutional rights”). Most countries have a written national constitution that is publicly available. In the constitution you can check which rights are protected;
• The right is protected in national human rights legislation. These are “statutes” (laws made by a legislature, such as a national congress or parliament) which protect human rights; or

• In some cases, international or regional human rights treaties are directly enforceable in your country (there is also a possibility of taking a claim to an international or regional human rights body. This will be discussed more in “International Law”).

Example: The Kenyan Bill of Rights

The Kenyan Constitution contains a bill of rights which protects rights such as the right to life, freedom from slavery, the right to property, and the right to healthy environment. These rights can be enforced in Kenyan national courts.

(iii) What are human rights obligations?

Under human rights, people have entitlements (i.e. things they are owed) and governments have duties or obligations (i.e. things they must do) to secure such entitlements.

A state’s human rights obligations can often be split into 3 different parts:

• The obligation to respect human rights: The government must not take action that negatively impacts people’s rights. This is often called a negative obligation, as it prohibits the government or public bodies from taking certain actions.
• The obligation to protect human rights: The government must take action to ensure that private actors (e.g. businesses and other individuals) do not negatively impact people’s rights. This can be called a positive obligation, as it demands that governments and public bodies take certain actions.
• The obligation to fulfill human rights: The government must take action to ensure that conditions exist where people can enjoy their rights. This is also a positive obligation, demanding that the government take action to, for example, provide primary healthcare or education services.

However, for all of these obligations, it is not enough to show that your human rights have been negatively impacted or interfered with. Generally, you also have to show that there was no justification for the interference with your human rights. This often relies on a proportionality or reasonableness test. This asks whether the interference with your human rights that was caused by a state action/omission was proportionate to the objective the state pursued by taking such an action.

(b) Administrative Law & Judicial Review Principles

Administrative law refers to the rules, regulations and principles that govern the actions of public bodies, officials and agencies. Administrative law often covers every area where the state acts.

• It defines what rights (i.e. the things people are entitled to) individuals have before agencies and government departments and what obligations (i.e. the things people have a duty to do) these public bodies have towards individuals.
• It determines the competence of authorities (i.e. what they can and cannot do); and 
• It indicates which remedies an individual can get for the violation of her or his rights.

There may be specific rules and regulations that apply to a public body in your situation which you could base your legal case on.

Example: Mexico’s General Law of Administrative Responsibility

Mexico’s General Law of Administrative Responsibility establishes a legal framework that public servants must follow. This applies to all public officials. It contains administrative penalties for those public officials that are involved in corrupt activities such as money laundering, embezzlement and others. Administrative cases can be brought against public officials suspected of committing such offences. The expected administrative sanctions consist in preclusion from participating in future public offices, economic sanctions, bans for misconduct and dismissal of the public official.

In many countries, there are also general public law principles which make an action or omission of a public body unlawful. Below are some common examples of these principles:

(i) The principle of illegality or ultra vires

These principles operate so that the actions of omissions of a public body can be considered unlawful if:

• Where there is a law in your country which sets limits or conditions on a public body’s powers but the public body acts outside the limits of the law;
• Where there is a law that authorises a public body to take an action, but the actions of the public body are based on an interpretation of the law which is incorrect;
• Where there is a law that authorises a public body to take actions to achieve a certain purpose, but the public body uses the powers under the law for an improper purpose; or
• Where a law gives a public body power to make a decision, but the public body takes irrelevant considerations into account or fails to take relevant considerations into account when making the decision.

(ii) The principle of irrationality or unreasonableness

Irrationality is a principle in which a decision of a public body can be challenged if it is so unreasonable that no reasonable decision-maker could have made the decision.

(iii) Procedural unfairness

Even if there is not a specific law which requires the government to adopt a specific procedure, decisions of governments in many countries can be challenged where the procedure leading to the decision is unfair. For example, where the decision was biased or the process was not transparent.

Civil law concerns people’s private law rights. These regulates regulate the relationship between individuals, corporations and public bodies. 

There are many different areas of civil law. Each area prevents corporations and people from doing certain things and provides consequences when laws are broken. Below are some of the main examples:

(a) Tort Law

One key type of civil claim is a claim in tort for personal injuries or injury to property.

• A tort means a civil or private law action.
• In common law countries, the legal definition of some torts has been developed by judges through case law.
• In civil law countries, torts are typically codified, this means they are defined in national law often in the country’s civil code.

Torts or civil wrongs commonly found in different legal systems include:

(i) Negligence

A person or body commits the tort of negligence where:

• The person owes you a duty of care. This means a person must meet a standard of expected care. To do this, you may need to show that:
  • There is a relationship between you and the person;
  • The harm is foreseeable (i.e. it could be anticipated); and
  • It is just and reasonable that the defendant owes you a duty of care.
• The duty of care has been breached. This means the person didn’t meet the expected standard of care; and
• The action that breached the duty of care caused the problem that your claim is based on (e.g. negative impact on your health, pollution etc).

(ii) Nuisance (i.e. inference with property)

A person commits the tort of nuisance where the actions of another cause a substantial or unreasonable interference with the enjoyment of your property

(iii) Other torts

Other possible tort actions include the common law torts of assault, battery, false imprisonment, trespass or conversion. These cover situations where someone uses force against you. restricts your liberty or takes property that belongs to you.

(b) Contract Law

Contract law governs relationships between people who are parties to an agreement, called a contract. The contract creates rights for each party which can then be enforced against the other party.

• Contracts can be written or spoken. They do not have to be called “contracts” as long as there is an agreement for something of value.
• The rights and obligations of each party are outlined in the “terms of the contract” (these are the specific provisions of the agreement).
• Where terms of a contract are broken, claims can be brought for a breach of contract where this has caused the other party loss.

Contracts are common in a range of different areas, including:

• Commercial relationships;
• Employment contracts between employees and employers; and
• Consumer contracts between consumers and businesses.

(c) Other Areas of Civil Law

Outside these general areas of law, lots of specific areas are covered by laws that regulate the relationships between private individuals. Examples include:

• Employment law: There may be specific statutes or legislation that govern the relationship between employees and employers, in addition to contract law.
• Family law: In most countries, there are statutes or legislation governing family issues such as marriage, divorce, custody of children and inheritance.
• Property or land law: This covers relationships between landlords and tenants, ownership over property and other rights people have over property.

Criminal law outlines when individuals will be considers to have committed a crime. In other words, a crime is committed when the actions of an individual or a business break a criminal law.

• You can usually find the criminal laws of your country in the criminal or penal code.
• Crimes will usually be punished by a sentence such as imprisonment or a fine.

Common crimes include killing, rape, torture, theft of your property, slavery, human trafficking, corruption, physical assault and some harms to the environment.

In most countries, the police or public prosecutors are responsible for investigating crimes and bringing cases to court. However, often these investigations begin when individuals or organisations report suspected crimes to the police or public prosecutors.

Public international law refers to the laws that apply between different states or countries. International law covers a wide range of different areas, including:

• Human rights: There are a range of international instruments that set human rights standards.
• Environmental protection: There are international laws on a wide range of environmental issues, such as climate change, the protection of endangered species and biodiversity, and the regulation of toxic waste.
• International trade and investment: There are laws governing how states can trade together and on what terms businesses from one state can invest and operate in another state.
• The law of the sea: These laws outline the boundaries of states’ territorial waters and regulate the “high seas” that belong to no single state.
• International criminal law: These laws make actions such as genocide, war crimes, crimes against humanity and aggression international crimes, which can be punished in international criminal tribunals.
• Humanitarian law: These are the laws of war that regulate what states can and cannot do in a wartime situation.

This section will not go into detail on any of these specific areas of international law. It simply highlights that they exist and might be useful in your case in certain circumstances. Other specific guides on the A4J Platform will only into detail on specific international laws relate to an area. This section is limited to outlining some of the basics about international law that you should be aware of.

(a) Sources of International Law

The following are the main sources of international law:

(i) Treaties & Conventions

Treaties are agreements that have been reached between states. The terms of these legal agreements then become law that applies to the states that were party to the agreement (a state will be a party to a treaty if it signs and ratifies a treaty). This is like a contract between states. Treaties can cover an endless range of areas, from the law of space to the protection of human rights.

At international law, human rights are generally protected in treaties and conventions. Key human rights treaties include:

• International Covenant on Civil and Political Rights (ICCPR)
• International Covenant on Economic Social and Cultural Rights (ICESCR)
• International Convention on the Elimination of Racial Discrimination (ICERD)
• International Convention on the Elimination of Discrimination Against Women (CEDAW)
• Convention on the Rights of the Child (CRC)
• Convention Against Torture (CAT)
• International Convention on the Protection of Migrant Workers (ICMW)
• International Convention on the Protection of All Persons from Enforced Disappearance (CPED)
• Convention on the Rights of Persons with Disabilities (CRPD)

If a state signs and ratifies these treaties, they become “binding” on your state at international law. You can check whether your country has signed and ratified a UN Human Rights Treaty here.

Another important area of international law for public interest litigation is international environmental law. This includes a number of key treaties, such as:

• The United Nations Framework Convention on Climate Change (UNFCCC)
• The Paris Agreement on Climate Change
• Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES Convention)
• CBD Convention on Biological Diversity

If you find an international treaty that relates to your case, first check if your state has signed and ratified the treaty.

(ii) Customary International Law

These are principles of state behaviour accepted as binding principles of law because they reflect widespread state practice. This includes serious human rights abuses, such as the prohibition of slavery, torture and racial discrimination.

For further information, see the International Red Cross Committee’s page on customary international law.

(iii) General Principles of International Law

These are principles that are adopted in a large number of different states’ legal systems or appear in a large number of treaties. The fact these principle are so common, in effect, turns them into principles of international law.

Examples of general principles of international law include some key environmental principles, such as:

• The Precautionary Principle: This principle requires that where there is a threat of serious or irreversible environmental harm, scientific uncertainty cannot be used as a reason to delay action to prevent the harm.
• The No-Harm Principle: This principle requires states to prevent transboundary environmental harm in other countries where the source of the harm comes from their territory.

(iv) Soft Law

In addition to the above sources of international law, there are a number of international guidelines, principles and declarations that can be considered “soft law”. This means they are not strictly law (i.e. they do not impose legal obligations on States in and of themselves) but they can influence state behaviour and how other laws are applied.

Key examples include:

• The United Nations Guiding Principles on Business and Human Rights: These are a set out guidelines for states and businesses on how to prevent, address and remedy corporate human rights abuses.
• The United Nations Declaration on the Rights of Indigenous Peoples: This is a declaration that sets out human rights principles as they apply to indigenous peoples. Most of these rights are protected in other “hard laws” but the declaration is useful by elaborating on what these mean when indigenous peoples are concerned.
• The United Nations Declaration on Human Rights: This was the first global instrument on human rights. Although it wasn’t a legal treaty, it influenced later treaties and national laws. It’s still an important declaration that outlines what basic rights we have.

(b) Who Does International Law Apply to?

Generally, international law only formally applies between states. This means that only states have rights and obligations under international law. This also means that for most types of international law, it is only states that can formally enforce those laws. For example, an individual cannot claim to have individual rights under a the UNFCCC. However, as you will see below, this does not mean that international law cannot be useful in cases brought by individuals.

There are some exceptions to this general rule:

• International Human Rights Law: States have legal human rights obligations towards individual people who are in their territory or under their jurisdiction. The other side of this is that individuals have rights under international human rights treaties in relation to the States that are parties to these treaties.
• International Criminal & Humanitarian Law: These laws prohibit international crimes, such as genocide, war crimes and crimes against humanity. These laws apply to individuals. This means that individuals who commit these crimes could be punished for breaking international law.

(c) How Can I Use International Law?

The various ways that international law can be used in an individual case can be a complicated area for which you will likely need legal advice. However, this section will need outline a few of the main ways international law could be used to get a remedy to an injustice in your case.

(i) International Courts, Tribunals and Complaints Bodies

There are courts, tribunals and complaints mechanisms that are designed to enforce different types of international law. Some of these bodies can only hear cases or complaints brought by states. However, other bodies can hear complaints brought by individuals in certain circumstances, such as Regional Human Rights Courts or United Nations Treaty Bodies.

For more information, see Where Can I Take Legal Action?

(ii) Directly Applying International Law in National Courts

Usually, international law cannot directly be applied in national courts. However, there are some exceptions where international can has “direct effect” (meaning it can be applied directly in national courts just like it’s a normal law).

In some countries, certain types of international law can be applied directly in national courts. This means that an individual in that state could go to court and complain that their state breached their international law obligations towards them. The type of laws that can sometimes be directly applied in national courts are those that relate to individuals, namely, international human rights law, international criminal law or international humanitarian law.

Example: Nepal

In Nepal, certain international human rights treaties can be applied directly by national courts. This means individuals who believe the state has violated their human rights can go to court and enforce international human rights law without having to find those rights in national law.

(iii) Indirectly Applying International Law in National Courts

In many countries, courts must interpret national laws so that they comply with international law. Although people can’t direct apply international law in these countries, they can use international law in a way to change how national laws are applied in their case, strengthening their arguments that national laws have been broken.

Example: South Africa

In South Africa, courts must interpret national law consistently with international human rights law when possible. This has been used to increase the protections people have under the national constitution.

 

(iv) Using International Law in Advocacy and Campaigns

Even if international law cannot be used as part of your legal case, it could form a key part of your advocacy strategy. Some international laws, like international human rights or environmental law, are well known can be add weight to your arguments and campaign.

For more information, see Campaigns