CLN4U – Grade 12 Canadian and International Law – Exam Notes

Thanks, Vivekan !

Law Unit 1 – Heritage Notes

 

Primary Sources: 

  • Value and context
  • Longest historical development
  • Represents system’s cumulative values, beliefs and principles
  • Religion, Morality, Historical Influences, Aboriginal Influence, Customs and Conventions

Religion

  • Nation’s Judeo-Christian heritage (i.e. Ten Commandments)
  • Connects with values and certain laws (i.e. abortion, euthanasia)
  • Increase in secular, increase in laws like so (laws shouldn’t be religion-based)
  • Canada’s founded on principles that recognize supremacy of God and Rule of Law

Morality

  • Moral philosophy deals with distinction between right and wrong
  • People with moral sense can be non-religious
  • Murder//public nudity reflects society’s moral values
  • Morality’s always changing

Greeks

  • Laws reflect British and French Laws (Greek and Roman Laws)
  • First European people to practice democratic ideals: JURIES
  • Concepts are carried forward intro our laws and Charter

Romans

  • Introduced codified laws (written, categorized)
  • Laws/interpretation became more complex so they trained specialists (legislators)

Aboriginal Influence

  • Iroquois Confederacy: Great Binding Law: checks/balances power so people’s interests are followed
  • US Charter and UN Charter

British 

  • Common Law  body of law created by court decisions

 Precedent, stare decisis

  • To counter inconsistency of Feudalism, judges were sent out
  • These judges were responsible for certain areas of society

France

  • Civil Law legal system

Customs

  • Long-established way of doing something overtime: force of law

 PM is leader by custom: although Governor General should be

Party system in politics

  • Laws reflect social behaviour, necessary for welfare of society

Conventions

  • Rules of compelling political force; followed by legislators
  • If a Cabinet Member votes against your party, you’ll step down as Party/ Cabinet Member

Socio-Political Philosophy

  • Growth of strong social welfare, legal rights movements
  • CPP, welfare, sick, OHIP; protect society
  • Civil Rights Movement

 

Secondary Sources

    1. Constitution > all laws or court decisions
    2. Statutes/Legislation: made by politicians

 rep. will of society expressed through elected members

    1. Case/Common Law: judicial decisions

 

Categories of Law

SUBSTANTIVE LAW

Public Law: area of law regulating activities between state and citizens

Constitutional

  • Body of written/unwritten laws setting out how country will be governed
  • Sets out distribution of powers between fed. And provinces and embodies certain important legal principles

Private (Civil) Law: body of law regulating disputes between individuals, businesses, or organizations (plaintiff vs. defendant)

 

Family

  • Governs relations among members of a family
  • Spousal and child support payments and visitation rights

Contract

  • governs agreements between ppl or companies to purchase or provide goods/services
  • someone returns rental on later date b/c of transmission problems and gets charged for that but they may sue company

Tort

  • covering civil wrongs and damages that one person/company causes to another when wrongs/damages arise independently of a contractual relationship

 

Theories and Concepts of Law

Natural Law

  • Source: external unchangeable principles that regulate natural world
  • Purpose: promote goodness and Justice
  • State: goodness, Justice, Protect Rights, Liberty, Property of Citizens
  • Citizen: promote goodness and justice

Positive Law

  • Source: Created by the state
  • Purpose: Maintain Law and Order
  • State: Enforce Law
  • Citizen: obey law or face penalties

Utilitarianism 

  • Source: Achieve greatest good for majority
  • Purpose: maximize pleasure, reduce pain
  • State: pass laws benefiting majority
  • Citizen: pursue, please, and happiness without negatively affecting others

Legal Realism 

  • Source: Realistic Terms
  • Purpose: originated from statute law, state, and case law
  • State: provide decision in predictable fashion based on exp. of Judges

Marxism 

  • Source: Law is an instrument of oppression and control
  • Purpose: suppress lower class
  • State: make law that benefits  higher classes
  • Citizen: overthrow the state

Feminism

  • Source: Men create all laws
  • Purpose: oppress females
  • State: remove systematic barriers and give women equal rights
  • Citizen: believes and results in greater equality

 

Philosophers of Law

 

Natural Law

Plato (Student of Socrates)

  • humans were social by nature; organized society: natural institution
  • society or state didn’t exist not only for economic reasons; help ppl develop good life led according to principles of justice
  • “The Republic”: written by Plato in voice of Socrates

 Natural justice is in two places: the individual and the state

  • Individual: considered just when all person’s powers are working in harmony with lower powers subordinated to the higher; reason
  • State: considered just when each class of ppl performs own functions right and doesn’t interfere with functions of any other class
  • Human being achieves justice through reason, state achieves through law
  • Justice: all powers of individual/society work together for good of whole
  • Human Laws: based on knowledge of eternal laws ruling universe
  • Natural Law: do good and avoid law; law closely related with morality

Aristotle (Student of Plato)

  • Agreed with Plato: humans are political animals (bees, ants, cranes)
  • Reason sets humans apart; tell between good and bad, just and unjust
  • Using reason to analyze natural world: rationalism
  • Plato thought education made people good; if you knew it you’d do it
  • People fall into three classes:

Some are born good

Some can be made good through education

Majority are ruled by passions, education alone won’t make ‘em good

  • Law: fear of punishment forces most to follow reasons; do good avoid evil
  • Laws importance to workings of state; citizens should train as legislators
  • Learn to regulate behaviour of fellow citizens, ensuring prosperity of state
  • Thought law had a moral purpose; live according to reason > passions
  • Reason: spark of divine in human beings; ppl fulfill greatest potential
  • “If reason is divine, then, in comparison with man, the life according to it is divine in comparison with human life.”
  • Law has this as highest purpose: help citizens use faculty of reason to reach greatest potential; live a good life by doing so

 

Cicero

  • Roman lawyer at time of Julius Caesar
  • Established principle: justice, right, equality, fairness, should underline law
  • “Law of Natural Force” law: mind and reason of an intelligent person
  • State should represent collective will of citizens; not enacting evil laws
  • Permissible for citizen to withdraw support of a Gov. enacting evil laws

 

Positive Law

Thomas Hobbes (1588-1674)

  • Violence of English Civil law first hand, fled to Paris in 1648
  • Leviathan: state of nature nothing more than state of perpetual war as strong and intelligent plundered weak and slow, and weak ppl banded together to attack
  • Tried strengthening own position by destroying those around them
  • “Hereby it is manifest” “That during the time men live without a common power to keep them all in awe, they are in that condition which is called war; and such a war as is of every man, against every man”
  • In state of nature, ppl led lives that were solitary, poor, nasty, brutish, short
  • Interests of self preservation: ppl. Agreed to surrender rights to sovereign/king
  • King alone had power to enforce his will; embodied in the law
  • Civil disobedience was act of folly; return society to perpetual warfare/anarchy
  • Didn’t think people formed governments to recognize/defend natural law rights
  • Ppl. Prone to violence and disorder, formed governments with strong leader to rule and maintain law/order

John Locke (1632-1704)

  • English philosopher and political theorist
  • Two Treatises of Government: if king violated natural rights, rebelling and replacing unjust government with one that respects their rights was justified
  • Natural Rights: rights to life, liberty (thought, speech, expression), and property
  • passions got better of reason: lead to injustice: strong took from weak
  • better to form civil society where majority handed over to state authority to preserve fundamental rights

 

John Austin (1790-1859)

  • Agreed that purpose of law: secure happiness of majority
  • Separated law from morality
  • Useless to judge laws by moral/religious code (subjective measures)
  • Ppl had own interpretation of law and could obey laws they judge to be good and disobey they judged to be bad
  • Positive Law: objective measure of judgment; every law passed must be obeyed

 

OAKES TEST:

  1. Can you achieve objective through law?  Is objective pressing and substantial?
  2. Is this a large or small violation of rights?
  3. Does the benefit of this law outweigh the limits?

 

 

Unit 2 Constitutional Law and Rights & Freedoms Review Notes

 

Constitutional Law

  • Provides framework for nation’s government and legal system
  • Rulebook: rules that political players must follow to adopt, amend, revoke law
  • American: written; explicitly sets out branches of government and powers
  • Britain: unwritten based on customs/conventions
  • Canada has both written and unwritten components
  • Top of pyramid; overrides all other law

Sources

Constitution Act of 1982

  • Britain didn’t mind giving Canada own constitution, but federal and provincial governments didn’t agree on amending formula fearing loss of power
  • April 17th, 1982 agreement reached: constitution transferred to Canada INCLUDING:
  • Amending Formula (Can. Gov. and 2/3 of provinces with 50% of population needed)
  • Charter of Rights & Freedoms
  • Constitutional commitment to use finances to promote equalization across provinces
  • Grants provinces power over certain natural resources

Division of Powers

Federal Powers

  • Most sweeping powers; economy
  • Unlimited powers taxation, public debt and property, regulation of trade/commerce
  • Raising money by any mode or system of taxation, borrowing money on public credit, postal services, militia, military, Naval Service, Defense, Sea Coast, Inland Fisheries, Currency, Coinage, Banking, Incorporation of Banks, and Issue of Paper Money, Legal tender, Indians & their Land reserves, Marriage & Divorce, Criminal Law, except Constitution of courts of criminal jurisdiction, but including the procedure in Criminal Matters

Provincial Powers

  • Management & scale of public lands belonging to Province & of Timber and Wood
  • Establishment, maintenance, and management of Hospitals, Asylums, Charities, E
  • Municipal Institutions in Province
  • Solemnization of Marriage in the Province, property and Civil Rights in the Province
  • Local works and Undertakings
  • Admin. Of Justice, Education

Municipal Powers

  • No constitutional rights of their own
  • Basic services, pay for them by levying property taxes & imposing service charges
  • Bylaws, property taxes

 

Human Rights – History

  • Basic rights and freedoms all humans should be guaranteed (liberty, life, thought, expression)
  • Right to fair and equitable treatment, respecting one another and not discriminating against
  • Adequate access to basic needs: food and shelter

Pre-Charter

  • Most legal traditions borrowed from British common law: rights and freedom ideas adopted
  • Reductionist Theory: person is free to do what is not positively prohibited by law: human rights under British system
  • Civil liberties: don’t come from positive law, but from absence of positive low
  • Parliament could define limits of human rights under this system

 

English Common Law Protections of Civil Liberties

  • Gov. acts had to meet test of validity, or be done with legal authority (Crown < law)
  • Ppl whose liberties/rights were violated by official action: sue for legal remedies; damages
  • Statutes infringing ppl’s rights subject to strict examination by courts
  • Any ambiguity had to be interpreted in favour of individual rather than government

Johnson v. Sparrow (1899)

  • Individuals relied on courts to infer liberties and rights/constrain oppressive governments
  • Black man and woman were refused seats in orchestra section of theatre even though they had reservations.  Case wasn’t decided on racial discrimination, but on issue of breach of contract; court award damages
  • Pre-Charter tradition: viewing rights within narrow positive-law framework; failure of courts then to see discrimination in public/private sections as question of human rights

Canadian Bill of Rights

  • Lists traditional individual rights to life, liberty, security of persona and property, equality before law, freedom of religion, speech, assembly, association, and press
  • Rights exist without discrimination based on race, national origin, colour, religion or sex

 

Protection of Human Rights

Charter vs. Human Rights Legislation

 Charter applies to actions of public laws and bodies including acts of federal parliament and provincial legislatures.  HR legislations apply to private laws and parties.

Charter

  • Provides list of rights/freedoms Canadians are entitled to
  • Outlines government’s responsibility in upholding these rights

Canadian Human Rights Act

  • 1978, applies to Fed. Gov. departments, and businesses falling under their jurisdiction

Prov. HR Legislations

  • Each prov. And terr. Has own HR laws, usually called a code
  • Each is slightly different and prohibited grounds of discrimination vary
  • Restaurants, retail stores, schools, hospitals, unions, governments are among institutions covered by prov. HR legislation

Human Rights Commission and Tribunals

  • Implement and administer HR legislations
  • Fed. Prov. Territorial governments have established HR commissions
  • Investigate complaints about possible HR violations, provide legal procedures to hear complaints, and try to find solutions

Balance of Probabilities

  • Basis of greater likelihood; degree of proof in civil law in comparison with proof beyond a reasonable doubt in criminal law 
  • Of parties involved, who’s more believable
  • Did alleged discrimination more likely occur or not?

Bona Fide Job Requirement

  • (Latin) in good faith; legitimate, genuine
  • If tribunal believes discrimination has occurred; respondent must prove bona fide reason for discrimination and to act otherwise would = undue hardship

Undue Hardship

  • The result of a change that would affect economic viability of an employer or produce a substantial health or safety risk that outweighs the benefit of accommodating someone

 

Charter of Rights and Freedoms (1982) Entrenched Bill of Rights

  • Critic: ultimate legal authority moved from legislature to judiciary; wholly undemocratic
  • Support: judiciary was effective counterbalance to concentration of power of legislative branch

Limits to the Charter

  • s. 33: “Notwithstanding” clause: enforces legislative supremacy
  • Allows governments to pass legislation notwithstanding that it may violate one of certain group of rights
  • Gov. passing law must indicate which rights are being ignored/infringed in spite of Charter
  • Ss. 3 to 6 and ss. 16 to 23 of Charter cannot be avoided with this clause
  • Govs. don’t always invoke s. 33 b/c its difficult to justify the overriding to public
  • Time limit of five years

Remedies

  • Vriend Case: Read in/changed a law (IPRA sexual orientation)

Charter Reasoning

S.24 Enforcement: gives people right to challenge government in court

  • 1) was right infringed/violated by government or government agency?
  • 2) is right in question, covered by Charter?  If so, is there a violation of the Charter?
  • 3) Now refer to Oakes Test

 

Oakes Test

  • Oakes charged w/ trafficking in 1984; had to prove innocence
  • Originated criteria of Oakes Test to determine justification
  • Reverse onus violated section of Charter
  • Violated his rights but, justified (limits on freedoms)
  1. The reason/objective for limiting Charter right must be sufficiently important
  2. Gov. must show that means/ways chosen to affect this limit are, “reasonable and demonstrably justified” (involves a form of “proportionality test”).  3 important parts to proportionality test:
  1. The law must be reasonable and logically connected to objective for which it was enacted

 Law can’t be arbitrary, unfair, or based on irrational considerations

  1. Law should impair as little as possible the right and freedom

 Any alternative modes of furthering Parliament’s objective that infringe the right less?

 Legislation can’t be overbroad or unduly vague

  1. More severe the rights limitation, the more important objective must be

 Does the benefit from legislation outweigh seriousness of infringement?

 

Criminal Law

 

Introduction to Criminal Law

  • Ambit of Offence: judges have power to extend scope of prohibition; expand definitions of crime that doesn’t specifically address certain behaviours

 

 

Summary Offences

  • Less complex prosecution and penalties less severe than indictable
  • Prosecuted within six months of date occurred
  • Private person may prosecute if Crown refuses to lay charges
  • No preliminary hearings
  • Tried in Provincial Court
  • No jury trials
  • Accused presence not needed; may be represented by lawyer
  • Penalties limited to fines up to $2000 and/or 6 months in prison
  • No criminal record results from conviction

Indictable Offences

  • more complex prosecution and more severe penalties
  • no limitation on time when offence may be prosecuted
  • Private person may prosecute with permission of Crown; almost always Crown prosecutes though
  • Preliminary hearings may be held
  • Tried in Provincial or Superior Court
  • Accused may choose to be tried by judge or jury
  • Presence of accused required
  • Heavier penalties allowed, up to life in prison
  • Criminal record results from indictable offence conviction
  • Hybrid: prosecuted as either indictable/summary at discretion of Crown

 

Actus Reus

  • Guilty act; voluntary action, omission, state of being

 

Mens Rea

  • Committee act with guilty mind
  • Intent: meant to do something wrong, reckless, regardless of consequences

Knew or should’ve foreseen the wrongful act

  Code: willfully, intentionally

  • General Intent: for own sake; no ulterior motive (breaking in just because)
  • Specific Intent: one wrongful act for sake of another (breaking in to steal)
  • Knowledge: accused had knowledge of certain fats

Everyone who, knowing that a doc. Is forged uses, deals or acts upon it is guilt of fraud “knowing”

  • Criminal Negligence: wanton/reckless disregard for lives/safety of others

Person who commits, failed to take precautions any reasonable person would take i.e. leaving loaded gun out 

  • Recklessness: consciously taking unjustifiable risk reasonable person wouldn’t

Accident; driving without glasses if you need them 

  • Willful Blindness: deliberately closing mind to possible consequences of one’s actions (i.e. buying something for a too good to be true price)
  • Subjective: mens rea (requisite intention) crown must prove that offender had at time of enacting offence
  • Objective: based on offender’s failure to meet standards of the reasonable person

Regulatory Laws

  • Less serious crimes; doesn’t have to prove mens rea
  • Environment protection, property/traffic offences, hunting/fishing
  • Federal or provincial statutes meant to protect public

Strict Liability Offences (mens rea not needed)

  • Accused may acknowledge offence took place but offers defense of due diligence
  • He/she took reasonable precaution to avoid the offences
  • Environment pollution; Japan and earthquake

Absolute Liability Offences (mens rea not needed)

  • No defense possible; no license, insurance, speeding

 

Causes of Criminal Behaviour

Schools of Thought: general theory; umberella; widespread belief; diff. angle

 

Classical Theories (Utilitarian)

  • Rational, calculated activity (motive); ignore factors beyond individual’s control
  • Poverty, mental, intelligence
  • People have free will to choose how to act
  • Poor doesn’t care: Deterrence: humans seek pleasure and avoid pain
  • More swift and certain= more effective punishment

 

Positive Theory (Both)

  • Science > philosophy; crimes caused by external, internal factors outside of individual’s control
  • Biological (genetics), psychological, social positivism multitude of reasons

 

Chicago School (External)

  • Societal factors; urban neighbourhoods: more poverty=more crime
  • Breakdown of social structures and institutions (family, school)
  • Results in lack of social disorganization= less ability to control behaviour
  • No opportunity to do well (strong family keeps you close)

 

Psychological Theories

  • All humans have criminal tendencies; curbed by socialization
  • Faulty relationship with parents
  • Mark Lepine; dad womanizer: he thought woman were bad
  • Repressed memories and feelings; you want to lash out
  • Moral/Cognitive Development: individuals develop through stages, where we learn right and wrong, and how to reason morally
  • Failure to progress from one stage to another = delinquent
  • Learning: principle of behavioural psychology
  • Person’s behaviour is learned and maintained by consequence (reward)
  • Deviant: learned OT from consequences or rewards

 

Sociological Theories

Conflict Theory

  • Morality defined differently by social groups in struggle to gain/keep power
  • Competing interests=crime

Strain Theory

  • When people can’t obtain dreams = crime poor poorer, rich richer
  • Because of social structure & lack of opportunities

Social Organizations

  • Neighbourhood with poverty= high TO rate (ppl come in and out)
  • High TO rate: informal social structureno connection with society/community
  • In sense of community: people and cops maintain social order

Interactionist Theory

  • Relationship between powerful and powerless
  • Media, government, consecrating ruling elite
  • The powerful label minor delinquent behaviour (i.e. poor areas too); becomes a self fulfilling prophecy

 

Mark Lepine Analysis

Psychological

  • What factors in his personality led him to commit crime?
  • Assumption that individual’s personality is molded by prior experiences
  • Method: interview subject and family and friends; examine docs relation to prior life
  • Father was brutal saying women were inferior; beating his wife and Marc
  • Marc viewed violence as viable solution
  • His fascination with guns gave him feeling of power/control and the solution
  • He believed women were inferior thanks to his father

Anthropological

  • Why do some men act violently towards women?
  • Assumption: factors in nature of society encourage men to act violently to women
  • Method: examine stats and evidence about violence in Can. Society; linking together important information to see if pattern emerges
  • Marc’s violence against women in society that traditionally tolerates such violence
  • Movies glamourize violence, against women too
  • Ads exploit women as sex objects to sell beer, clothes and everything else

Sociological

  • What common factors are there in live of men who acted violent to women?
  • Assumption: compare Lepine’s acts with those of others like him and Can. Men
  • Method: study lives of mass murderers; women victims; compare group with control group: group of randomly selected men
  • Mass killers as a group are loners with few friends, broken families, violent families, sexually or physically abused as a child, difficulty dealing with emotions, frustration and anger controls lives, tormented on inside, Lepine blamed others when he didn’t get what he wanted out of life; respect, freedom, companionship

Victims of Crime

Police Investigation

Types of Physical Evidence

Fingerprints

  • Best way to identify a suspect; fingerprints unique to each person
  • Multiple fingerprints on one substance could prove deceptive

Trace Elements

  • Dirt, dust, residue may reveal person’s racial background
  • Links between suspect and crime, small quantities= inconclusive

Blood

  • Relevant in cases where mens rea is in issue as result of ingestion of intoxicating substances
  • Large quantities; other factors in home can cause blood spill= deceptive

Gunshot Residue

  • Trace substances left on surface: hand of shooter, after discharge of a firearm
  • Deceptive:

DNA

  • Biological compoundcell chromosomes; from which genetic info is obtained
  • Deceptive:

 

Arrest Procedures

  • Identify himself/herself as a police officer
  • Advise accused that he/she is under arrest
  • Inform accused of charge and show arrest warrant if obtained
  • Touch accused to indicate he/she is in legal custody

Arrest With Warrant

  • When person’s suspected of committing indictable offence, police asks judge for summons
  • This happens when police believe person will show up voluntarily
  • Failure to show: Bench Warrant
  • If police thinks person won’t show up, arrest warrant is issued

Arrest Without Warrant

  • S. 495 of CC: reasonable grounds to suspect person has committed/about to commit indictable offence
  • They find a person in act of committing a criminal offence
  • They find a person who they believe is named on an arrest warrant

Search Power

  • Police have no right to search; unless explicitly authorized by statute/common law
  • Section 8: right to be secure against unreasonable search/seizure
  • Section 487 of CC criteria for issuing a warrant:
  • Office must swear on oath before judge, document called: information
  • Information: statement by officer that they had reasonable grounds to believe that there is, in the place named information, evidence of a crime that has been committed or is intended to be committed
  • Warrant: identify premises, crime being investigated, describe goods sought
  • Must be signed by judge or JP

Hunter v. Southam

  • Reasonable and probable grounds that offence has been committed and that there’s evidence all the place of search
  • Prior authorization on search

 

Jury Selection and Challenges

  • Jurors names randomly selected out of ballot box with names from voters list
  • 75-100 jurors selected and summoned to appear in court at jury panel
  • Jurors’ names placed on cards and drawn for selection process; challenged

Challenge for Cause

  • If either Crown or defense believes they won’t fulfill responsibilities of jury duty
  • Age, relationship, mental capacity, not indifferent between Queen and accused

Peremptory Challenge

  • Reject juror without a reason
  • Minimal information: name, age, occupation; lawyer doesn’t have good feeling about them

 

Rules of Evidence

  • Evidence gives Crown and defense way to reconstruct legally relevant aspects
  • Judge/jury (trier of fact) determines which facts are true
  • Rules of evidence ensure that process is fair and admissible

Leading Question

  • “Wasn’t it Tom you saw holding the knife and stabbing Al?”
  • Can’t as your witness; leading witness to answer

Not Leading Question

  • “What did you see Tom do to Al?”
  • Doesn’t suggest an answer, asks for explanation

Hearsay

  • Can only ask witness what they saw/experienced first hand; not heard from 3rd party
  • “I heard he saw a gun”

Opinion

  • Can’t ask witness for opinion about a matter > common knowledge unless expert

Immaterial/Irrelevant Evidence

  • Evidence relevant, reliable and fair to be admissible
  • Irrelevant info isn’t related to an issue in dispute

Non-Responsive Answer

  • Lawyer may ask judge to get witness to answer question properly

Witness Competent: witness CAN testify

Witness Compellable: witness MUST testify

  • Spouses aren’t neither above
  • Expect when testifying against each other if it’s offence threatening person liberty, health of partner
  • Infanticide, attempted murder, assault, kidnapping

 

Types of Evidence

Direct vs. Circumstantial

  • Direct: testimony given by witness to prove alleged fact (most common type of eyewitness)
  • Circum: indirect evidence  reasonable inference of defendant’s guilt (DNA)

Admissibility of Evidence

  • Electronic Surveillance: admissible if recorded info in court if warrant was obtained and people being taped don’t have reasonable expectation of privacy in their
  • Polygraph Test: not admissible in court; Crown can bring up results though
  • Expert  Opinion/Evidence: admissible when under duress/pressure

 Inadmissible when obtained under intoxication

 Inadmissible if uninformed of rights

  • Hearsay: usually inadmissible because person stating evidence wasn’t directly involved in convo except for when they witness dying statement
  • Character Evidence: inadmissible unless defendants makes issue

 

Defences

 

Aggravating Factors (Offender)

  • Premeditation
  • Previous criminal record
  • Large profits from offence
  • Involving others in offence
  • Ring leader of the group
  • Continuing offence over time

Mitigating Factors (Offenders)

  • Impulsive act
  • Young or first time offender
  • Guilty plea
  • Cooperating with police
  • Mental or physical disability
  • Short life expectancy
  • Aggravating (Offence): Violent offence, number of victims, need for deterrent
  • Mitigating Factors (Offence):minor offence, time spent in custody, delay in trial 

 

International Law

 

Introduction to International Law

International Law

  • System of principles and rules made primarily to regulate conduct of independent world states
  • Has jurisdiction in more than one country
  • Legally binding system to co-ordinate actions of independent states at international level and to establish system of conflict resolution when disagreements and interventions occur

United Nations

  • 1945: responsible for current framework of international law
  • Not a government, just a forum; impose sanctions, kick countries out of organization
  • Countries meet and discuss (treaties, issues and etc.)

WHY?

  • Addresses/resolves legal issues and questions between nations
  • National interests conflicting = conflict
  • Cooperation between states necessary for everyday activities (post, commerce, trade)
  • Helps build international cooperation and harmonization of common pursuits; sets out standards and procedures to minimize nations’ conflicts

Pre-1648

  • International law was of limited importance
  • International affairs were dominated by successive civilizations and empires
  • Common to stabilize trade through treaties

1648-1945

  • Known as classical period commenced TREATY OF PEACE OF WESTPHALIA
  • Established independence of many Euro states from influence of the Pope
  • Emergence of these states required new body of international law; sovereignty
  • States soon recognized basic principles of international law
  • State of Sovereignty: state’s right to control its territory, people, and government without interference from other states
  • Legal Equality: state’s equal right to respect and participation in international legal order
  • Pacta Sunt Servanda: state’s obligation to keep international promises undertaken through treaties

1945-1989

  • States should have broader view of rights/responsibilities in international commerce
  • Prohibition of use of force to impose foreign policy
  • Recognition of individuals in international law and erosion of state sovereignty

 Go after people that violate law (Nuremberg Trials)

 Countries interacting with each other; legally bound to follow those treaties; give up sovereignty to gain something

Post 1989

  • End of Cold War; no more Soviet Union
  • UN allowed to act, to remove threats to international peace and security (Saddam)
  • Increasing role of multinational actors (corps, int. orgs, private NGOs) Amnesty International, Pepsi, Coca Cola, IBM
  • Countries need to work together to solve issue (i.e. economy)

Sources:

  • Article 38 (1) of Statute of International Court of Justice; ICJ going to apply:
  • International conventions (treaties); general or particular
  • International customs (binding rules over time); common practices
  • General Principles of Law recognized by individual states
  • Judicial decisions and teachings

Treaties

  • Written international agreement voluntarily entered in between 2+ sovereign states
  • Bilateral: between two Multilateral: many
  • Clearest type of international law
  • Kyoto Protocol, NAFTA, GAT

Vienna Conventions on Laws of Treaties

  • How are negotiations happening?  How are you legally bound?  If there’s a disagreement then what?

Customary

  • Built on customs; legally binding practice of conduct
  • Not as clear; disputable if there are any rules
  • Ex. How many states have to follow a rule for it to be a custom?
  • Two elements for customarily law to exist:

 Widespread and consistent practice among states

 Belief by countries that principle exists/legally binding; has a country followed this principle before?

General Principles

  • Last resort; recognized by nations; adopted by International Court of Justice
  • Domestic laws in civilized states
  • If genera principles are followed in domestic countries, it applies to international law

Judicial Teachings and Decisions

  • ICJ Makes decision= precedent (COMMON LAW)
  • International jurors and scholars have recorded judicial teachings/decisions overtime

Treaty Principles

  • Legally bound to uphold rights and obligations
  • Clearest type of int. law; trade, military, econ: ANY ASPECT is covered
  • Vienna Convention: rules for how treaties are negotiated, bound, and signed
  • Principles to be followed upon disagreement
  • Up to countries who’ve signed their treaty; must follow Vienna.
  • Types: convention, alliance, pact, covenant, charter, agreement, protocol, declaration, compromise, state, general and final act
  • Bilateral: Germany and Canada extradition
  • Multilateral: NAFTA, Kyoto Protocol
  • Lawmaking: more general function; encompassing broad principles that can be applied to world community (Vienna)

 

Treaty Process:

  • Identification needed for a treaty
  • Developing of mutual interest and concern
  • Negotiations to determine what obligations each state will have and how the treaty will be brought into force
  • Signing and ratification of the treaty
  • Negotiators sign treaty on behalf of countries
  • Must be formally accepted; once government has had chance to review work of ambassadors
  • Ratifying: by passing it through Cabinet; approval unnecessary unless significant to Canada (NAFTA)
  • Only when state signs and ratifies is it legally binding

International Human Rights

  • Certain inalienable rights= classical Greek/Roman philosophy
  • Treatment of combatants and civilians during war times

Tension

  • Always existed between concept of universal unchanging rights and state sovereignty
  • States oppose idea that national rights should be dictated by international norms
  • They agree that state policy should dictate rights

UDHR

  • UN Commission on HR proposed it and drafted international bill of HR
  • 30 brief articles; HR promoted and protected by all states
  • General rights: equality, fundamental freedoms, democratic and …
  • Life, liberty, security, slavery, torture, fair trial, equal pay=equal work

Moral Obligation

  • Doesn’t have binding force of law; only a resolution
  • Contents of Declaration about to become principles of customary international law
  • Master blueprint; national and international level: develops other instruments to protect fundamental rights and freedoms (Charter)

International Covenants

International Covenant of Economic, Social, Cultural Rights

International Covenant of Civl and Political Rights

Requires ratification of international treaties

CESCR

  • Vital to self fulfillment, achievement, political aspirations, legal rights
  • Grouped: worker’s rights, family rights, right to health and adequate standard of living, education rights, cultural rights

ENFORCEMENT

  • Many states argue: costly to implement these rights; financial resources that countries don’t have
  • Enforcement mechanism is weak and permissive
  • Must submit report every 6 years on measures they’ve adopted and progress they’ve made to achieve CESCR
  • Report may show factors causing state to fail
  • If there’s a legit reason for failure; UN Commerce on Economics can make arrangements for international organizations to provide assistance
  • If not legitimate; committee may so in its periodic reports to the General Assembly; only measure available

Optional Enforcement systems:

  • States agree to be accountable to other states for HR violations
  • Any states making such a declaration can complain to HR Committee
  • Committee can investigate and try to resolve violation
  • NGO may lodge complaints against states
  • They won’t investigate but they’ll log report; procedure

 

Boundaries and International Zones

Land Boundaries

  • Since establishment of UN; acquisition/surrender of land can occur only through mutual consent
  • Control of islands is determined by historical evidence and accorded to states that have exercised the most continuous occupation and clearly sovereignty

Water

  • International law developed rules/exploitation of shared fresh water; countries must cooperate to use the mutual water
  • Each state liable to other for any damage caused by harmful activities
  • Salt Water; states have exclusive control of their territorial area
  • States may exercise jurisdiction but not exclusive control; beyond territorial sea
  • Vancouver exclusive control up to 200 nautical miles of Ocean
  • State may enforce pollution, smuggling, fishing laws

High Seas

  • Zone beyond exclusive economic zone; no one owns it
  • Customary law; challenged because of exploitation of offshore fishing grounds that can destroy state’s domestic fishing industry
  • Accidents with drilling for gas and oil (British Petroleum)
  • To guarantee domestic, political, economic interests of State; secure future preservation and conservation of ocean

UN Conventions on the Law of the Sea (1982)

Air Boundaries

  • International business and other travel
  • Before WW1 everyone had access to war without laws (customary laws)
  • 1919 Paris Aerial Navigation Convention;
  • Every state has exclusive jurisdiction over its internal waters and adjacent air space up to unlimited heights

1944 Chicago Convention on International Civil Aviation

  • Regulate commercial/civil navigation
  • Schedules fights (cargo, passengers and military need prior authorization)
  • Refueling non-traffic purposes; allowed to fly in through without authorization
  • Rules for navigational safety, aircraft design, construction standards

 Without these rules; a crappy plane falls off air and harms people in another state’s airspace =  GG NO RE 

  • Outer Space: no one owns it
  • 1967 Outer space Treaty: outer space voyage is only for better of all humankind
  • Prohibits deployment of nuclear weapons in outer space
  • Prohibits military use of moon and other planets
  • Convention on International Liability by Damage Caused by Space Objects
  •  Countries responsible for object pays damages

Peaceful Resolution of Disputes

  • Fundamental purposes of international law: create rules, mechanisms, organizations that will lead to peaceful resolution of Disputes 2(3) of UN Charter

Diplomacy

  • First step in dispute resolution
  • Outlines legal and factual basis of the different parties positions and take advantage of opportunities for response, clarification and so on
  • 3rd party or international organization may offer forum for negotiation
  • Diplomats will do backroom deals between countries (skilled, smart people)
  • Arbitration Tribunals: emerged in 1800s; normal solution for disputes

2 Canadian judge, 2 US judges, and 1 from Spain … or all just 3rd party judges 

 Traditionally done Adhoc

Hag Convention for Pacific Settlement for International Disputes:

  • Set rules and set permanent panel of arbitrations
  • 1903 Alaska Boundary Arbitration: Canada vs. USA over Alaska

International Court of Justice  (country must sign jurisdiction of that court)

  • Settles disputes sent by states; give advisory opinions on legal questions referred to it by duly authorized international organizations and agencies
  • UNCESC; asked them how can they hold countries obligated to law

International Criminal Court

  • Established in 2002 to try persons charged with genocides and crimes against humanity; USA hasn’t signed yet
  • Countries have right to own decisions; they give up sovereignty by signing; countries’ people are subject to those laws if they sign (that’s why its not mandatory to sign)

War Crimes by ICC

  • Intentionally launching attack that will cause loss of life (damage to civilian or cultural objects)
  • Widespread, long term, and severe damage to natural environments
  • Use of prohibited weapons
  • Methods of warfare that cause unnecessary suffering or inherently indiscriminate in claiming victims

Just War and Legit Use of Force under Modern Law

  • Hague Convention and so on
  • War isn’t a just or legit way to conduct international relations
  • War is justified if restricted to right of nation to protect its own people or territory

UN Security Council

  • Members receive authorization from Council to use force
  • Maintenance of individual peace and security
  • 1960 UN accepted use of force in Korea