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A law is a rule that regulates what individuals or entities can and cannot do in a society. In any legal case, the Claimant bringing a case will be arguing that a law has been broken or that their legal rights have been violated by the Defendant.
If you are bringing legal action, it is essential that you conduct a legal analysis to answer the following questions:
You may need to seek legal advice to answer these questions. A lawyer should be able to provide advice on the options available to you and advise on your chances of success.
The specific content of laws will change in different countries. However, below are the common types of law which legal cases are often based on.
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.
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.
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:
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.
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:
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.
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.
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:
(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:
One key type of civil claim is a claim in tort for personal injuries or injury to property.
Torts or civil wrongs commonly found in different legal systems include:
i) Negligence: A person or body commits the tort of negligence where:
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 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.
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 are common in a range of different areas, including:
Outside these general areas of law, lots of specific areas are covered by laws that regulate the relationships between private individuals. Examples include:
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.
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:
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.
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:
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:
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:
(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:
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:
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.
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 “Alternatives to Court: Campaigning”