Foreign laws

FOREIGN LAWS

carolina.cerda-guzman@u-bordeaux.fr

EXAM: QCM, 30 minutes, 30 questions, Questions in English

TOOLS

18/10/22

à1° Register to the Moodle page of the course (straw poll announcement, useful websites or documents, PowerPoint

à2° Ask questions during the course à3° Bibliography (on Moodle)

PRESENTATION OF THE COURSE: OBJECTIVE AND STRUCTURE

Objective: to widen your perception of the law.

In order to understand a foreign law, you have to put it into perspective. The law is a part of the country’s culture, history and traditions of each country. Law is neither true of false. The perception of fairness, or of truth, depends on what we believe in (cultural background). Our perception can evolve through time. This is why it’s important to put the law into perspective.

Structure

§ 1st semester: view foreign law from a macroscopic point of view. The approach will be more general; presentation of important different systems

§ 2nd semester: view foreign law from a microscopic point of view. We will choose specific topics and study how a specific institution, structure etc., works.

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Proposition of topics for the 2nd semester (vote on Moodle):

§ Vote: what value does the vote have? Who has the right to vote? What are the

applicable rules? What are the prohibitions?

EX: Chile is living a very critical situation at the moment, so citizens have to vote quite often. “Vote par procuration” that exists in France does not exist in Chile, or in many other countries. The voting system can be so different depending on the country.

§ Nationality: what are the rules for obtaining nationality? What are the rights that result from obtaining this nationality? How can this nationality be lost?

§ Death penalty: in which countries is this authorized? Under what modality and for what types of crimes or misdemeanors? Which countries prohibits it? Under what conditions?

§ Emergency regimes: what are the different types of emergency regimes that exists? What are their characteristics? What are the powers conferred under these regimes?

§ Constitution-Making

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INTRODUCTION

Foreign law implies that there is a national law. So this course will be about laws that are not national (not French). Our purpose is to figure out what is foreign to us? How foreign can be other laws (to us)? Is it the way the law is organized? Is it the difference in structure, the content? In reality, foreign law is not completely different. There are always some similarities.

(?) Let’s take an example: universality or diversity of the law? FREEDOM OF EXPRESSION

It’s something that we can relate to because we do it all the time. It’s a universal right because the Universal Declaration of Human Rights (1949) 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 impact information and ideas through any media and regardless of frontiers”.

There are 193 constitutions in the world that do recognize the freedom of expression. We can say that this is a common point that joints un (French) to the rest of the world.

(?) Do we have it the same way?

§ FRANCE (declaration of human and Civic rights, 1789), Art 11: “The free communication of ideas and of opinions is one of the most precious rights of man. Any citizen may therefore speak, write and publish freely, exception what is tantamount to the abuse of this liberty in the cases determined”.

§ BOSNIA AND HERZEGOVINA (1995), art 3: “All persons within the territory of Bosnia and Herzegovina shall enjoy the human rights and fundamental freedoms referred to in paragraph 2 above: these include: (..) Freedom of expression”

§ UK (Human rights Act, 1998): they don’t have a Constitution so to speak but they do have a bit of texts, written or unwritten that they apply.

The Human rights act that was integrated in the British law in order to facilitate the application of the European convention on human right. The UK ratified the convention. The problem is that the UK is based on the sovereignty of the Parliament. Lawyers had issues applying it, because if a law stated something different that was stated in the convention, the judges in the UK had to apply mainly the British law. This is why it is so long: it explains how the judges must apply and interpret the articles.

àPoint 12: Freedom of expression àArticle 10

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§ Ireland (1937), art 40.6: “the state guarantees liberty for the exercise of the following rights, subject to public order and morality”

§ Republic of Korea (North Korea, 1948): “all citizens shall enjoy freedom of speech and the press, and freedom of assembly and association”

(!) Gives specific example on how they can abuse it: it can come from the violation of honor, violation of rights of a person, the fact that they can undermine social ethic. It’s easier to understand or explain.

§ Bahrain(2002),art23:“freedomofopinionandscientificresearchisguaranteed.Everyone has the right to expression his opinion and publish it by word of mouth, in writing or otherwise under the rules and conditions laid down by law, provided that the fundamental beliefs of Islamic doctrine are not infringed, the unity of the people is not prejudiced and discord or sectarianism is not aroused”

They mention unity of the people. What is unique about it is that they mention religion.

In Bahrain, they think that there is a doctrine, knowledge, specialist lawyers who will explain what are the bases of Islamic doctrine. The importance of doctrine is a core element.

§ Pakistan (1973), art 19: “every citizen shall have the right to freedom of speech and expression, and there shall be freedom of the press, subject to any reasonable restriction imposed by law in the interest of the glory of Islam or the integrity, security or defense of Pakistan

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