International Law

Islamic Syrian Divorce in USA

2011-11-13T12:27:00.001-08:00

By Prof. Gabriel Sawma

Background

Syria is an independent state in the Middle East. It borders Lebanon and Israel to the west, Turkey to the north, Jordan to the south and Iraq to the east. In ancient history, Syria was occupied by Canaanites, Phoenicians, Hebrews, Aramaeans, Assyrians, Babylonians, Persians, Greeks, Romans, Nabataeans, Palmerenes, Byzantines, Arabs, Crusaders, Mongols, Mamluks, and the Ottomans. From early times in its history, Syriac, a dialect of Aramaic, was the national language of the country. It developed after the Aramaeans invaded Syria during the upheavals of the 13th century BC. Aramaic was spoken and written language of the inhabitants of modern-day Turkey, Syria, Lebanon, Transjordan, Iraq, Palestine, parts of Egypt and the western parts of Iran. Aramaic was also the language of the Arab tribes who lived in Syria under the Romans and Byzantine Empires before the Islamic conquest in 636 AD. Epigraphic materials from the Nabataean and Palmerene kingdoms show that these two major Arab kingdoms had their inscriptions written in Aramaic and Greek; none was written in Arabic since modern Arabic script was not developed yet. Most of the modern day villages and cities throughout Syria and the Middle East still preserve their names in Aramaic. Aramaic was displaced by Arabic in the following centuries that followed the Islamic conquest of Syria and the region. Damascus, capital of modern-day Syria, was the seat of the Umayyad Dynasty in early Islam.

In 1517, Syria fell to the Ottoman Turks and formed a major territory of the Ottoman Empire. While under the Ottomans, Syria was occupied briefly by the ruler of Egypt, Ibrahim Pasha from 1832 to 1840. After World War One, the Ottoman Empire was dismembered and Syria came under the Mandate system which was established by the League of Nations. In accordance with the Sykes-Picot Agreement signed during the War between France and Great Britain, France held control over modern Syria, Lebanon, Alexandretta and other portions of southern Turkey. In 1939 Turkey recaptured Alexandretta.

In January 1, 1944, Syria was recognized as an independent republic; the following year, the Syrian government announced the formation of a national army. In March of that year, Syria became a member of the United Nations, and in April, it signed the pact of the League of Arab States (Arab League). In view of the recent turmoil and lack of progress in reforms promised by President Bashar al-Assad, Syria’s membership in the Arab League has been temporarily suspended as of November 12, 2011.

Islamic Law of Marriage and Divorce in Syria

In 1917, the rulers of the Ottoman Empire passed the “Ottoman Law of Family Rights” (OLFR); the law represented the first state-sponsored codification of the personal status law as part of Islamic sharia. OLFR of 1917 remains in effect as the Muslim personal status law of Lebanon, and Israel to this day, and was recognized as the official law of Syria until 1953 and in Jordan until 1951.

Thus, the Islamic law of Syria was integrated in the Ottoman legal system. In 1926, Law No. 261 was introduced to render to Sharia courts the powers related to personal status, succession and waqf (real estate property and institutions belonging to Muslim religious community.) In contrast to Lebanon, Islamic sharia courts in Syria were regarded as ordinary judicial authorities in matters of personal status of non-Muslims, except for matters left to the jurisdiction of the communal courts. Matters of guardianship, succession, wills, legal majority (rushd), and maintenance of relatives within the family, waqf-khayri (real estate property and institutions belonging to non-Muslim communities) are controlled by the sharia courts. The sharia courts consist of a single qadi (judge), whose rulings may be appealed to the sharia department of the Court of Cassassion (mahkamat al Tamyeez). The law of 1926 established religious courts for non-Muslims with jurisdiction limited to matters not within the competence of the sharia courts; mainly in cases involving betrothal, marriage, divorce, matrimonial and children maintenance.

In 1953, the Syrian Law of Personal Status replaced the Ottoman Family Law of 1917. This law is based on the Hanafi School of jurisprudence and on other legislations adhered to by other Sunni doctrines. Islamic marriage contracts have to be signed by the couple in addition to a judge, and then registered with the state authorities. In Islamic marriage contract the value of the mahr has to be stated. The husband has duty to support his wife and provide her with a residence. The property of the husband and the property of the wife are not merged through marriage. In compliance with Islamic sharia, the law of Syria allows polygamy, although amendments in 1975 were passed to restrict the absolute right for a man to take a second, third, or a fourth wife.

In compliance with Islamic sharia, the Syrian code grants husband the right to divorce his wife, without a specific cause (Arabic, talaq). Thus, a man can divorce his wife any time, in any place, without any reason. The marriage can be terminated by the husband by announcing, three times “I divorce you”, or “I divorce my wife”, or “you are divorced”, or “my wife is divorce”, or by any statement that indicates his intention to divorce his wife. Also, according to Islamic sharia, the law of Personal Status of Syria, a man has the right to remarry his divorced wife, but only if she remarries and divorce another man.

The Syrian code does not allow women to initiate divorce in the same manner husbands do; instead, women have recourse to a judicial divorce (khul’). Women may also seek dissolution of the marriage if the husband is impotent or insane, or if he has been absent for over a year, or if he refuses to offer maintenance to his wife. When Islamic divorce occurs, custody of children (hadanah) of the young child resides with the mother, during childhood. If the mother remarries, she loses this right. As to guardianship (wilayah) of the children, this right is reserved for the father alone, or in case of the father’s death, the paternal grandfather is entitled to the custody. If the grandfather is dead, a paternal uncle assumes guardianship.

Article 3 of the Constitution of Syria states that, Islamic jurisprudence is “a main source of legislation”. The constitution also states that “the president has to be Muslim. In 1961, Law No. 12 was introduced; it establishes twenty-five Muslim courts throughout Syria. Each court consists of a single qadi (judge), except for those in Damascus and Aleppo, which comprise of three judges each. Islamic sharia courts are state courts with jurisdiction over the Law of Personal Status.

Recognition and Enforcement of Syrian Islamic Divorce in USA

The problems associated with recognition of a foreign divorce obtained from Syria arise when a U.S. citizen travels to Syria and obtain a quick divorce “triple talaq”. Such a divorce is generally entitled to recognition in the United States if it was valid and effective in Syria where it was granted and that Syria was the residence or domicile of both parties. U.S. courts will determine if the divorce was obtained by mail, by fraud or by any means that may violate State’s public policy requirements. Recognition of a divorce obtained in Syria may require that the person has his or her domicile in Syria, or whether both parties appeared in the divorce action, even in the absence of domicile. All of these factors are taken into consideration before the divorce obtained in Syria is recognized and enforced in the United States. Individuals facing these issues should consult with a competent attorney and/or consultant before they initiate any legal action.

It is important to note that a civil divorce obtained in the United States for couples belonging to Muslim faith, is not recognized by Islamic tribunals in the Middle East or any other country whose personal status laws are based on Islamic sharia. Islamic sharia does not recognize a divorce obtained outside its rules. Muslim individuals, mainly women, who obtain civil divorces in the United States, and would like to remarry within the Islamic faith, must obtain an Islamic divorce too, a civil divorce alone in not enough. Muslim women who obtain a civil divorce alone in the United States and then remarry without obtaining an Islamic divorce may face prosecution in the Middle East for adultery. They may even face stoning in some countries. Furthermore custody of their children born of Islamic marriage will be taken away and granted to the father or to his paternal family members. Again, Muslim women who obtain civil divorce only in the United States should consultant a competent attorney and/or consultant before they travel to a country whose family law is based on Islamic sharia.

DISCLAIMER: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific or legal advice on the information provided and related topics, please contact the author.

Gabriel Sawma is a lawyer with Middle East Background; Professor of Middle East Constitutional Law and Islamic law; Expert Consultant on Islamic and Hindu Divorce in U.S. courts; admitted to the Lebanese Bar Association of Beirut; Associate Member of the New York State Bar Association and Associate Member of the American Bar Association. http://www.islamicdivorceinusa.com/
Editor in Chief of International Law Blog: http://www.gabrielsawma.blogspot.com/
Email: gabrielsawma@yahoo.com
Email: gabygms@gmail.com
Tel. (609) 915-2237

Islamic Yemeni Divorce in USA

2011-10-14T19:15:00.000-07:00

ByProf. Gabriel Sawma

HistoricalBackground

Yemen is known inantiquity as Arabia Felix or Happy Arabia. It is a mountainous country havingmore rainfall and more fertile soil than the rest of Arabia and, therefore itwas able to support a relatively dense population. During the nineteenthcentury, the southern part of Yemen became a British colony whereas thenorthern part of the country came under the rule of the Ottoman Empire. By theend of World War One, North Yemen became independent from the Ottoman Empire,while South Yemen remained under British administration until it declared itsindependence in 1967.

The relations betweenthe socialist South Yemen and the Western oriented North were strained at time,and conflicts occurred in 1972 and 1978-1979 between the two states. In 1990,both states were united forming the Republic of Yemen. Between May and July 1994 a new civil war inYemen started involving the former Northern and Southern Yemeni states. The warresulted in the defeat of the southern armed forces and the flight into exileof many Yemeni Socialist Party leaders and other southern separatists.

Yemen’s population ispredominantly Muslim (Sunni and Shia), with a small Jewish, Christian, andHindu minority. Conversion from Islam to another religion is prohibited for allMuslims, and according to the laws of Yemen, a Muslim person found changing hisreligion is considered an apostate and subject to the death penalty. Familytraditions as well as Yemeni laws may restrict a woman’s freedom of movement.Women are not allowed to obtain a passport without permission from the guardian(Arabic wali). A guardian may preventa woman from seeking education or employment and may restrict her ability toleave home without his permission.

TheJudiciary in Yemen

During the time whereboth Northern and Southern Yemen were separated, both states had their ownjudiciaries. But that status changed after the unification in 1990.The judicialsystem according to the amended constitution of 1994 declares in Article 3 thatIslamic sharia shall be the source of all the laws. This means that no otherlaw can be enacted contrary to the Islamic sharia. The constitution establishesthree layers of civilian judiciary: (1) a District Court in the main centers ofall the districts called the Courts of First Instance (al-mahakim al-ibtida’iyyah) which have original jurisdiction in allcivil, criminal, commercial, family and administrative cases; (2) ProvincialCourts of Appeals (al-mahakimal-isti’nafiyyah), found in every province as well as in the capital cityof Sana. These courts hear cases at the appellate level after the Court of theFirst Instance has rendered its judgments; (3) The Supreme Court of theRepublic (al-mahkama al-‘ulya), whichis the highest court of the land.

In 1992, the governmentof Yemen passed Decree Law No. 20 constituting the Yemeni Law of PersonalStatus. The law sets the minimum marriage age for both males and females at 15years. However, discrepancies between legal rights and actual practices aresignificant. For example, although the legal minimum age of marriage is 15 formales and females, violations of this law are common and early marriage is aserious problem in Yemen. The lawrequires a non-virgin woman who has been previously married to pronounce herconsent to marriage verbally, while the law allows the silence of a girl orwoman considered to be a virgin to signify her approval or consent to marriage.The law requires the wife to provide sexual access to her husband; she isrequired a permission of her husband to leave the house except to attend to theneeds of her parents. Polygamy is legal, although the first wife must beinformed if her husband is marrying another; thus a man is allowed to bemarried to up to four women at one time. The divorce law grants the mothercustody until her children are of age (nine for male children and 12 forfemale) on condition of her maturity, sanity, faithfulness, moral and physicalability or if she remarries.

Islamic sharia, whichis the basis of Yemen Personal Status Law allows the husband the unconditionalright to divorce his wife using the “triple talaq” formula, which includes hisannouncement of divorce by stating three times: “I divorce you, I divorce you,I divorce you”; or “I divorce my wife, I divorce my wife, I divorce my wife.”The husband can divorce his wife any time, any place and without having to giveany reason, whereas a woman must seek a judicial divorce in which she mustpresent adequate justification in order to have the marriage contractnullified. Article 47 of the amended Personal Status Law provides women withthe right to have their marriage contract nullified but only under thecondition that the woman’s husband has a defect or dangerous disease, which,according to Yemeni laws includes tuberculosis, leprosy, insanity, orimpotence. In all these cases, the court must agree to the separation or tonullification of the marriage contract; the wife alone has no right to separatefrom her husband on her own.

Women face additionalchallenges when travelling abroad. The ‘Passport Law’ does not have genderrequirements for issuing a passport, but in practice a woman seeking a passportfor travel must have a male sponsor. Personal Status Law No. 20, amended in1998, requires wives to yield to the authority of their husbands. A wife isobligated to reside with her husband at his residence, no matter what thecondition of the residence is.

Recognitionof Yemeni Divorce in USA

Many Yemeni Muslim menwith U.S. citizenship travel to Yemen in order to obtain a fast track “tripletalaq” divorce according to the Personal Status Law of Yemen. They then returnto the United States and seek recognition and enforcement of the Islamic Yemenidivorce in the U.S. But can such an ex parte divorce be recognized and enforced?

International lawincludes the question of right between nations; it also includes questionarising under what is usually called private international law, or the conflictof laws, and in particular concerning the right of individuals within the territoryand dominion of one nation, by the judgments issued by the courts of othernations. In theory, no law has any effect beyond the limits of the sovereignty ofthe nation in which the law is enacted. However, such a law can be allowed tobe implemented within the dominion of another nation in what is called “thecomity of nations.” Our U.S. Supreme Court has ruled in Hilton v. Guyot, (159US 113 – Supreme Court 1895) that comity , in the legal sense, “is neither amatter of absolute obligation, on the one hand, nor of mere courtesy and goodwill, upon the other. But it is the recognition which one nation allows withinits territory to the legislative, executive or judicial acts of another nation,having due regard both to international duty and convenience, and to the rightsof its own citizens or of other persons who are under the protection of itslaws.” “The recognition of a judgment of a foreign court under the principle ofcomity is subject generally to two conditions: (1) that the foreign court hadjurisdiction of the subject matter; (2) that the foreign judgment will notoffend the public policy of our own state” (See Fantony v. Fantony, 21 NJ 525,533, 122 A.2d. 593 ( 1956).

The FourteenthAmendment’s Due Process Clause, which is applicable to the states, “limits thepower of a state court to render a valid personal judgment against anonresident defendant.” (See World-Wide Volkswagen, supra, 444 U.S. at 291, 100S. Ct. at 564, 62 L.Ed.2d at 497) (citing Kulko v. California Superior Court,436 U.S. 84, 91, 98 S. Ct. 1690, 1696, 56 L.Ed.2d 132, 14041, 1978). When ajudgment fails to conform to the due process requirements, it is void in therendering State and is not entitled to full faith and credit elsewhere.

DISCLAIMER: Whileevery effort has been made to ensure the accuracy of this publication, it isnot intended to provide legal advice as individual situations will differ andshould be discussed with an expert and/or lawyer. For specific or legal adviceon the information provided and related topics, please contact the author.

Gabriel Sawma is a lawyer with Middle EastBackground; Professor of Middle East Constitutional Law and Islamic law; ExpertConsultant on Islamic and Hindu Divorce in U.S. courts; admitted to theLebanese Bar Association of Beirut; Associate Member of the New York State BarAssociation and Associate Member of the American Bar Association. http://www.islamicdivorceinusa.com

Editor in Chief of International Law Blog: http://www.gabrielsawma.blogspot.com

Email: gabrielsawma@yahoo.com Tel. (609) 915-2237

Islamic Jordanian Divorce in USA

2011-09-29T18:40:00.001-07:00

ByProfessor Gabriel Sawma

Background

After the collapse ofthe Ottoman Empire, following World War One, Jordan was created as an Emirateof the Transjordan under the British Mandate, which was instituted by theLeague of Nations. By 1946, the mandate over Jordan came to an end, and Jordanwas declared the Hashemite Kingdom of Jordan in April 1949 with a constitutionthat gave the king legislative and executive powers.

Until 1918, the legalsystem of Jordan was part of the Ottoman Empire; it was formed of Sharia courts,which applied various Islamic schools of jurisprudence, whose interpretation ofthe law was greatly influenced by local traditions. This made it possible forthe religious judges to allow tribal traditions (‘urf) to be applied in cases involving personal status. Like therest of the states who were ruled by the Empire, the 1917 Ottoman Family Codewas also applied in Jordan and later became the basis of modern Jordanian personalstatus law. It follows the Hanafi school of thought in Sunni Islam.

Jordan’s personalstatus law for Muslims is based on Islamic sharia, which is summarized as theunchanging body of laws representing the Quran and prophetic hadiths (sayingsand deeds attributed to the Prophet of Islam). Thus, Islamic sharia isrecognized as part of the Jordanian law, whose application is extended topersonal status law covering marriage, divorce, child custody, inheritance, andwaqf (religious institutions owned bythe Muslim community).

TheJudiciary in Jordan

In 1952, a newconstitution was adopted in Jordan; it declares that Islam is the statereligion; Jordan’s legal system was reconstructed, and the court system dividedbetween civilian judiciary (mahakinnizamiyyah), religious courts (mahakimdiniyyah), and special courts established for specific reasons (mahakim khaassah). The religious courts aresubdivided into Christian and Muslim courts in the areas of marriage, divorce,child custody, inheritance, and waqf.

Royal Decree 41, 1951 dividesreligious courts into two bodies: first degree (mahakim al-Bidayah), then one or more second degree courts (mahakim al-Issti’naf). The function of Islamiccourts is stated in the following terms:

“Shariacourts are responsible for adjudicating personal status among Muslims and tolook into disputes involving the establishment and internal administration of waqfs in the benefit of Muslims…andproblems emanating from a marriage contract registered at the sharia court orany of its licensed authority, and that in accordance to what is most widelyaccepted from the Hanafi Jurisprudence (madhhabof Abu Hanifah) with the exceptions of any of its special laws.”

The Law of PersonalStatus for Muslims, No. 61 of 1976 codified the provisions of Islamicjurisprudence as it pertains to family relations, from engagement through marriagedissolution. Thus, personal status law of Jordan deals in disputes involvingIslamic marriage contracts, divorce, child custody, guardianship (wali), inheritance, payment of blood price,mahr (amount of money or its equivalentthe husband promise to give his bride if she agrees to marry him), spousalsupport (nafaqah), and any disputethat results from the marriage contract.

Jordanian law setsminimum marriage age of sixteen for men and fifteen for women. Under-agemarriages are, nevertheless, validated under certain conditions. The consent ofthe guardian is required for a female under the age of eighteen, but not for adivorced wife or widow over eighteen. Although the Jordanian law requires theconsent of the bride’s guardian to her first marriage, the judge (qadi) can override the guardian’srefusal if it has no justification according to the law. Marriages and divorceare required by law to be recorded in special registrars with the properauthority under penalty.

Polygamy is allowed inJordan in compliance with Islamic sharia; under this rule, a man may marry upto four wives at the same time, provided that he secures separate dwelling toeach wife. There is no requirement that an existing wife be notified of asubsequent polygamous marriage by her husband. The law requires the husband topay a higher fee for registering a polygamous marriage than that of amonogamous union.

As for custody ofchildren, the Hanafi School of jurisprudence mandates that in case of divorceor death of the husband, children belong to the husband and his family. In sucha situation, the mother’s custody of her son ends when he reaches the age ofseven and her daughter when she reaches the age of nine. The religious courtmay extend that period for more years.

IslamicDivorce Law in Jordan

Divorce is known inArabic as talaq. As elsewhere in the countrieswho apply Islamic family law, marriage comes to an end when a divorce isuttered three times by the husband at his own will. He may announce the divorcein any place of his choosing, with or without a reason, and no judicialsupervision is required. The presence of his wife is not necessary for adivorce to take effect. The words used by the husband to divorce his wifeshould be expressed clearly to indicate a divorce. He can say, for example: “youare divorced, you are divorced, you are divorced”, or “I divorce you, I divorceyou, I divorce you”, or “my wife is divorced, my wife is divorced, my wife isdivorced”. When uttering these words, the divorce becomes final, and the marriagewill end immediately. Such a divorce is irrevocable; the husband cannot remarryhis wife until she is married legally to a second man and then divorced fromthe second husband.

The divorce can bepronounced orally, by phone, via text message or by any means of communication inthe presence of two male witnesses, or one male and two female witnesses. Thewitnesses are required to be Muslims. Under Islamic sharia, the testimony ofone male is equivalent to two female witnesses.

As to women who seekdivorce, the rules are different. A woman may seek judicial divorce underIslamic sharia if her husband delegated his wife to do so (tafweed el-talaq). This kind of divorce must be provided in themarriage contract; it implies that the husband gives his wife the authority todivorce herself under certain specified conditions. The wife may also seek Khul’divorce, whereby she relinquishes her right to the mahr or to any financial compensation; a divorce may be obtained bymutual consent of both parties. It should be noted that any kind of divorceinitiated by women has to be done through the judiciary.

Under the rules ofIslamic sharia, the wife may seek judicial divorce if the husband disappearedfor a long period of time, or if he neglects his wife by not providing her withmaintenance, or if he has been sentenced to jail for a long period of time, or ifhe was impotent at the time of marriage and continued to be so after themarriage, or if the husband has been insane for a period of time or issuffering from leprosy or a virulent disease.

While the husband canend his divorce within a few minutes by uttering a divorce without theintervention of the court, the wife, on the other hand, has to go to thereligious court to obtain a divorce (faskh). Judicial divorce initiated by the wife maytake years to obtain.

Recognitionof Islamic Jordanian Divorce by U.S. Court

Recognition of an exparte divorce decree obtained in Jordan is not governed by the Full Faith andCredit Clause, but rather by the doctrine of “comity”, which may be broadlydefined as the respect which the U.S. family courts render to the legalproceedings and judgments of other sovereign foreign nations. By ex parte it ismeant that the other spouse neither participated in the divorce proceeding, didnot make an appearance in the proceeding, nor was personally subject to thejurisdiction of the divorcing court. Divorces obtained in this manner aregenerally not recognized by U.S. courts but may be immune from attack by virtueof the estoppel doctrine. The reason usually given for no recognition is thatjurisdiction for divorce is dependent upon the domicile of at least one of thespouses in the divorcing state, and the divorce will not be recognized withoutjurisdiction over the subject matter. The law to be applied in such cases isthe law of the state of the domicile of the couples at the time the foreigndivorce was obtained.

While every effort has been made to ensure theaccuracy of this publication, it is not intended to provide legal advice asindividual situations will differ and should be discussed with an expert and/orlawyer. For specific technical or legal advice on the information provided andrelated topics, please contact the author.

GabrielSawma is a lawyer with Middle East background; admitted to the Lebanese BarAssociation of Beirut in 1970; Associate Member of the N.Y. State BarAssociation; Associate Member of the American Bar Association. Professor: Middle East Constitutional Law; Professor of Islamiclaw. Expert consultant on recognition and enforcement of foreign divorcejudgments in the USA, http://www.islamicdivorceinusa.com

Editor inChief of International Law Blog: http://www.gabrielsawma.blogspot.com

Email: gabrielsawma@yahoo.com Email: gabygms@gmail.com

Tel. (609)915-2237

Recognition of Hindu Divorces in New York State

2011-09-20T09:07:00.000-07:00

By Gabriel Sawma Sunday, Aug. 21, 2011 at 3:03 PM
gabrielsawma@yahoo.com (609) 915-2237

A Hindu divorce decree obtained in India in accordance with Hindu Marriage Act of 1955 may or may not be recognized and enforced in the State of New York. Such recognition, when it happens, is based on the concept of ‘comity’ in private international law.

Professor Gabriel Sawma

Comity in Private International Law
A Hindu divorce decree obtained in India in accordance with Hindu Marriage Act of 1955 may or may not be recognized and enforced in the State of New York. Such recognition, when it happens, is based on the concept of ‘comity’ in private international law. The doctrine of comity is an acceptable solution to the problem of both respecting territorial sovereignty of the state in which the foreign judgment is sought to be recognized and enforced and the legal principle of private international law where no judgments would have any extraterritorial effect outside the countries where they were issued.

It is important to note that the conception of comity is not an obligation of any state to apply foreign laws. New York along with all other states, apply foreign law as a matter of international courtesy and good will. Therefore, the application of a foreign divorce decree would only be declined when the interests of New York State or its citizens and residents are impaired.

The definition of comity was provided by the U.S. Supreme Court in Hilton v. Guyot in 1895. It laid down in a case on the recognition and enforcement of a French judgment in the United States. The U.S. Supreme Court, in defining the doctrine of comity, stated that “Comity, in the legal sense, is neither a matter of absolute obligation, on the one hand, nor a mere courtesy and good will, upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to rights of its own citizens or of other persons who are under the protection of its laws.” (See Hilton v. Guyot, Supreme Court of the United States, 1895, 159 U.S. 113, 16 S.Ct. 139, 40 L.Ed. 95).

Personal Jurisdiction
The state of New York may recognize a Hindu divorce decree from India provided that the Indian court has personal jurisdiction on the couple seeking divorce. In a recent case, a wife, resident of Michigan, USA, obtained a divorce from U.S. court. Her husband went back to India and filed for a divorce in an Indian court. The judge of the High Court in Pune, India rejected his petition on the ground that the husband’s domicile is in the U.S., not India. The court ruled that “The man cannot confer jurisdiction on the court of Pune where the couple never stayed together for any length of time in their own matrimonial home (i.e., India), they having had their matrimonial home in the U.S. The HMA [Hindu Marriage Act] itself does not apply to the couple conse-qu-ent upon their domicile in the US and also because the rights between the parties have been settled by a judgment conclusive between them.” (See The Times of India, March 6, 2010). The husband in this case, presented to High Court in Pune, documents showing that he was domiciled in India; he also submitted his ration card issued in 2001, his driving license obtained in 1999, his 1995 voter identity card and passport with validity up to 2019. But the court was not satisfied with the documents: “None of these documents shows his intention to reside in India permanently; his Green Card shows he intends to stay in the US…It is easy to see that both parties have had the intention of making the US their permanent home even prior to their marriage. Since their parents reside in India, they came to India to be married as per Hindu rites.” (Id.)
Domiciliary is an important factor in jurisdiction over divorce in India. Under the Indian Divorce Act, 1969, domicile has great importance. A petition in any matrimonial case may be presented to the District Court or High Court on the basis of residence of the parties within that jurisdiction (or that the parties last resided within the jurisdiction of the court) or for dissolution of the marriage the parties are domiciled in India at the time of the presentation of the petition.

Recognition and Enforcement of Foreign Divorce in the State of New York
In one case, the husband went to Mexico, not for the purpose of residing there, but for obtaining a divorce decree. The husband remained at all times a resident and domiciliary of New York State to which he returned promptly and where he continued to reside and practice his profession, and that he was physically present since his return from Mexico, except for vacation or business trips. In this case the court ruled that the unilateral Mexican divorce without the consent of his wife was a “complete nullity.” (Lamb v. Lamb, 61 Misc.2d 1032 – NY: Family Court, 1969).

In another case, the Court of Appeals ruled that “In cases where a divorce has been obtained without any personal contact with the jurisdiction by either party or by physical submission to the jurisdiction by one, with no personal service of process within the foreign jurisdiction upon, and no appearance or submission by, the other, decision has been against the validity of the foreign divorce decree.”(See Perrin v. Perrin, 408F.2d 107 – Court of Appeals, 3rd Circuit, 1969).

If it appears that neither party to the divorce decree was domiciled in India and the arrangements the parties make to obtain it were collusive and contrary to the public policy of New York in respect to the dissolution of marriage, New York Courts would consider that divorce decree to be a nullity.

Gabriel Sawma is a lawyer with foreign background, member of the Lebanese Bar Association of Beirut; Associate Member of the N.Y. State Bar Association; Associate Member of the American Bar Association. Professor of Middle East Constitutional Law and Middle East Studies. Expert consultant on recognition and enforcement of foreign divorce in the U.S., http://www.islamicdivorceinusa.com/

Editor in chief of International Law Blog: http://www.gabrielsawma.blogspot.com

Email: gabrielsawma@yahoo.com

Email: gabygms@gmail.com

Tel. (609) 915-2237.

DISCLAIMER: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific or legal advice on the information provided and related topics, please contact the author.

Islamic Divorce in New York State

2011-09-20T09:02:00.000-07:00

August 23, 2011 By Gabriel Sawma, Esq.

Muslims residing in the State of New York are in a dual situation when it comes to the implementation of family law. On one hand, they are governed by the religious law of Islam, known as Islamic sharia, and on the other hand, the secular family law of the state of New York. To Muslims, the family law of Islam mandates that marriage and divorce among Muslims should be done in accordance with the Islamic sharia, regardless of whether they live in an Islamic or secular country. Civil divorce decrees obtained by secular courts are not recognized by Islamic sharia.

Under Islamic law, a Muslim man may marry a non-Muslim woman, whereas a Muslim woman is prohibited from marrying non-Muslim man. Under these rules, a non-Muslim woman marrying a Muslim man in compliance with Islamic sharia is subject to the rules of Islam in the areas of divorce, child custody and inheritance. In other words, a non-Muslim woman who gets married to a Muslim man in accordance with Islamic sharia, loses custody of her children in case of divorce, or in case the husband dies. Consequently, a non-Muslim woman marrying to a Muslim man in Sunni Islam, is forced, under the rules of Islamic sharia, to surrender custody of her son when he reaches the age of seven, and her daughter at the age of nine. She is also prohibited from inheritance. These rules are applied throughout Muslim countries with a system of sharia-based family law in place.

Marriage Contracts in Islamic Sharia
Under the rules of Islamic sharia, the marriage contract should include: (1) names and addresses of the couple; (2) name of the guardian of the bride; (3) names and addresses of two male witnesses; and (4) the amount of ‘mahr’, or a promise of money or its equivalent to be given by the husband to the bride. Like any other civil contracts, Islamic marriage contract should be in the form of offer and acceptance by the parties.

Contrary to the popular notion that mahr is dowry; it is not. A dowry is what the wife contributes to her marriage while mahr is an obligation on the husband to pay his future bride. Others call it a ‘gift’; it is not a ‘gift’ either, because mahr is an obligation on the husband and is mandated by the Quran. The Quran calls it ‘sadaq’ (Quran 4:4). If no stipulation of mahr is provided in the marriage contract, the marriage remains legal and in effect; in such a situation, the “qadi” (judge) will determine the amount of mahr, which remains a property of the wife alone. The amount of mahr can be paid partially: up-front (Arabic, muqaddam), and deferred until divorce or death of the husband (Arabic, mu’akhar), or it may be prepaid in full before the consummation of the marriage.

Legal Status of the Mahr Provision in Islamic Law
The most important feature of the mahr provision is that one party makes an offer and the other can accept or refuse to accept. It is a financial settlement between the couple in case a divorce occurs or the husband dies. Although, Muslim women do not personally bargain for the mahr agreements, and, in almost all of the divorce cases that I have seen so far, in the Middle East, Europe and the United States, Islamic marriage agreements involving mahr are negotiated by the representative (Arabic Wali) of the bride.

In the State of New York, an Islamic marriage contract involving mahr may be considered premarital agreement for a divorce settlement. In legal terms, this is called a concurrence of wills or meeting of the minds of the future husband and his future wife. This also means that each party from an objective perspective engaged in conduct manifesting their acceptance, and a contract was formed when both parties met such a requirement.

The basic rule is that a premarital contract will be interpreted and enforced in accordance with the law of the state in which it was entered into. Thus an Islamic marriage contract signed in Egypt according to the Egyptian law for example, must be interpreted according to the law of Egypt. The Restatement of the Law Second Conflict of Laws 3d, Chapter 8, Contracts, is clear about the law for the state chosen by the parties to a contract. The text of the Restatement reads: “(1) The law of the state chosen by the parties to govern their contractual rights and duties will be applied if the particular issues is one which the parties could have resolved by an explicit provision in their agreement directed to that issue.”

Looking at both academic and case studies in this area of law, this article points the reader in the direction of the current trends in the treatment of mahr in New York State and to address Islamic family law issues relevant to New York State law and the working of its legal system. The mahr provision in an Islamic marriage contract has been interpreted differently in other states. For more information on treatment of mahr in other states, the individual should seek legal advice.

Interpretation of the Mahr in New York State
Muslim men and women assert their Islamic legal rights in American family courts; as a result, Islamic sharia governing their marriages and divorces becomes an important and complicated part of the American legal landscape. This leads to a discussion of court cases involving Muslim marriage and divorce litigations in the State of New York, as well as whether New York courts will enforce the terms of Muslim marriage contracts, mainly the mahr provision.

New York courts have jurisdiction over divorce cases within its territory, with specific focus on premarital contract structured in accordance with foreign laws. And, various state courts have found no public policy prohibition in enforcing such agreements. In New York, a mahr agreement may be interpreted within the context of a contractual obligation.

In Aziz v. Aziz, the couple entered into a mahr agreement which required the payment of $5,032, with $32 advanced and $5,000 deferred until divorce. The New York court ruled that the contract conformed to New York’s contract requirements, and that “its secular terms are enforceable as a contractual obligation, notwithstanding that it was entered into as part of a religious ceremony.” (See Aziz v. Aziz, N.Y.S.2d at 124).

In this case, the husband argued that the mahr agreement provided in the Islamic marriage contract could not be enforced because it was a religious document and was not enforceable as a contract. The wife responded by stating that although the mahr is a religious stipulation; its secular terms can be properly enforced by the court. The court agreed with the wife and ordered the husband to pay the deferred mahr. The court found that the mahr agreement complied with the necessary statutory requirements to be recognized and enforceable as a premarital agreement and held that the secular terms of the mahr agreement were “enforceable as a contractual obligation, notwithstanding that it was entered into as part of a religious ceremony.” The court stated that the mahr agreed to by the couple constituted a secular debt of $5,000 and ordered the husband to fulfill the terms of the agreement.

The case was based entirely on another New York of Appeals case of Avitzur v. Avitzur involving a Jewish Ketubah in which a Jewish woman sued for specific performance to force her ex-husband to appear before a Beth Din (Jewish Court). Under Jewish Law, only a man can grant a divorce, or “Get”. Until he does, the woman cannot remarry within the Jewish faith to anybody. Her children will then be considered illegitimate. In order that a “Get” may be obtained, both husband and wife have to appear before the Beth Din. The husband refused to appear, leaving the woman in a state of marital limbo, making her an “agunah.” The New York Court of Appeals found that the Jewish ketubah constituted a valid premarital agreement that could be enforced despite the religious underpinnings of the agreement.

Conclusion
As the second largest religion, and with the number of Muslims immigrating to the United State on the rise, American courts are more frequently looking into Islamic divorce litigations between Muslim couples. Out of respect to Islamic law and culture, American courts attempt to apply certain provisions from Islamic sharia, such as the mahr contract in divorce cases involving Muslim couples. By doing so, American courts risk involving their arguments with gender and economic inequalities between Muslim men and women, leaving Muslim women destitute. The application of mahr agreements in Islamic divorce in the United States prevents women from exercising their rights to equitable distribution of marital assets upon divorce. If the courts need to extend their respect to Islamic law in divorce situations, they should look into whether the wife had a choice in signing the mahr agreement. Muslim women do not personally bargain for the mahr agreements, and, in almost all of the divorce cases that I have seen so far, in the Middle East, Europe and the United States, the Islamic marriage agreements involving mahr are negotiated by the representative (Arabic Wali) of the bride. Other states do not regard the mahr to be a premarital contract. Individuals seeking information on the treatment of mahr by other states should seek legal advice from a competent attorney.

ABOUT THE AUTHOR: Gabriel Sawma, Esq.
Gabriel Sawma is a lawyer with Middle East background; Professor of Middle East Constitutional Law and Islamic sharia; Expert consultant on Islamic and Hindu divorce in U.S. courts; Admitted to the Lebanese Bar Association of Beirut; Associate Member of the New York State Bar Association, and Associate Member of the American Bar Association; Editor in chief of International Law blog: http://www.gabrielsawma.blogspot.com; Expert consultant on Islamic and Hindu divorce in US Courts, http://www/islamicdivorceinusa.com/
Email: gabrielsawma@yahoo.com
Email: gabygms@gmail.com
Tel. (609) 915-2237

Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

The Khul' Divorce in Egypt

2011-09-20T08:56:00.000-07:00

Friday May 13th, 2011 8:10 AM

Under the rules of divorce in Islamic sharia, a husband has the prerogative right to divorce his wife any time, any place, with or without any reason. Under certain conditions, the wife may request from the religious judge a judicial divorce in case of ‘harm’ or maltreatment (darar), as stated by the Maliki School of jurisprudence.

Based on the wide interpretation of the Maliki School, the wife may seek divorce if she can convince the judge that she is suffering a ‘harm’ from her husband, a provision that is not allowed by the Islamic Hanafi School of law.In general terms, Islamic sharia allows the wife to seek divorce under the following conditions: (1) impotency; if the husband is unable to consummate the marriage; (2) his apostasy from Islam; (3) his imprisonment for a long period of time; and (4) if he contracts an incurable skin disease.
The additional ‘harm’ as a cause for divorce in Maliki interpretation of sharia, allows the wife to bring evidence to the judge showing that the husband used systematic maltreatment, and is unable to provide maintenance to her.

Such provisions in Islamic sharia created hardship for thousands of women who were seeking divorce, but unable to prove the ‘harm’ factor to the satisfaction of the judge. Women were unable to get out of their un-happy marriages because their husbands refused to consent to the divorce, and the judges were not persuaded with the evidence presented by the women. To remedy this situation, the Egyptian government enacted a law allowing judges to approve the divorce through a process known as Khul’, or repudiation, without the consent of the husband.

Khul’ was practiced in early Islamic period; it allows the wife to obtain a final divorce by means of a financial settlement paid by her to the husband in compensation, without having to prove of harm or maltreatment. Frequently, under the terms of Khul’, the wife is required to pay back all or part of the “mahr”, which is the amount of money or objects of value that the husband gave his wife when the marriage contract was signed. Also, she has to relinquish her right to the amount of “mahr” he promised to give her in the future. In addition, the husband must agree to the Khul’. In other words, should the husband refuse to consent to the Khul’, the wife will be unable to get divorce. Faced with that difficulty, the legislators in Egypt enacted a law in which the judge was given authority to separate the married couple based on Khul’ without the approval of the husband and without having to prove maltreatment.

On January 2000, former President, Hosni Mubarak of Egypt, issued in the Official Gazette [al-Jaridah al-Rassmiyyah] Law No.1, of 2000, granting women the right to file for a “no-fault” divorce (Khul’) on the basis of “incompatibility,” without having to provide evidence of harm. Under the provisions of the new law, the wife may obtain a definitive judicial separation from her husband if she desires so; the only condition she has to satisfy is to forfeit her rights to alimony and her deferred “mahr” (mu’akhar) as well as repay her advanced “mahr” (muqaddam).
First section of Article 20 of the new law provides the following: “A married couple may mutually agree to separation (al-Khul’); however, if they do not agree and the wife sues demanding it [i.e., the separation], and separates herself from her husband (khala’at zawjaha) by forfeiting all her financial legal rights, and restores to him the “mahr’ he gave to her, then the court is to divorce her from him (tatliqiha ‘alayhi).”

Before the judge rules on Khul’, he has to order the couple to undergo a process of reconciliation, and after asking two mediators [hukkam] to pursue conciliation efforts between them for a period that may not exceed three months; and after the wife decides explicitly [tuqarrir sarahatan] that she abhors living with her husband and there is no way to continue married life between them, and that she is afraid to transgress God’s limits of this abhorrence.

It is important to note here that while a woman is required to submit to burdensome and time-consuming court-ordered conciliation, men seeking divorce, on the other hand, are never required to make any efforts at reconciliation. The reconciliation process is rooted in the biased notion that women are not capable of making rational decisions on issues related to divorce. According to one prosecutor in Cairo, mediation was necessary because “a woman may be hasty in filing for a divorce and may not have a strong keenness in keeping the family together. The court has to play this role and intervene. Men are more wise and rationale than women. A woman’s emotions can overcome her rationality”. (See Divorced from Justice: woman’s unequal access to divorce in Egypt, Google eBook, p.28).

Section 3 of Article 20 states that the separation order of the judge is “an irrevocable divorce [talaq ba’in]”; and the court’s decision is not subject to any form of appeal. Article 20 of the Egyptian law of 2000 does not accord legal weight to the husband’s consent to the terms of Khul’ divorce. This is based on the Sunnah literature, embodied in the Islamic canonical collections of the sayings and deeds of the Prophet of Islam, and especially the collection of Sahih al-Bukhari, which contain an authenticated version of Muhammad’s handling of the Habiba separation case in which he ruled to separate her from her husband without asking the husband’s permission.

Although Article 20 of the Egyptian Personal Status Law, which grants women the right of Khul’ is considered a significant accomplishment by women’s rights activists, it is harmful to women’s financial rights because the wife is forced to give up her mahr, alimony and other gifts provided by the husband during their marriage. Poor women, particularly in rural areas, suffer most of this financial loss.

DISCLAIMER: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

An authorization to republish this article is hereby granted by the author provided that author’s name is attached to the article.

Gabriel Sawma is a lawyer with Middle East background. Professor of Middle East Constitutional Law, Islamic sharia, and Islamic economics. Expert consultant on Islamic divorce in U.S. courts: http://www.islamicdivorceinusa.com/
Editor in chief of International Law blog:
http://gabrielsawma.blogspot.com/2010/01/khul-divorce-in-egypt.html.
Lecturer on Islamic economics, http://www.islamiceconomics101.com;
Email: gabrielsawma [at] yahoo.com; Tel. (609) 915-2237.

Islamic Women Divorce Laws in Egypt

2011-09-20T08:52:00.000-07:00

Under the rules of Islamic sharia, the husband can end his marriage unilaterally by simply announcing the words “I divorce my wife” or “I divorce you” three times. He does not need to justify his decision, nor explain any reason for his divorce and never need to enter a courtroom to end his marriage. Egyptian Muslim women however are denied equal right to divorce. They are trapped in unwanted marriages or left begging for a divorce that can take years to obtain and leave them destitute.

Egypt’s Islamic family law of divorce is established in five legislations: (1) the law of 1920; (2) the law of 1929; the law of 1979; (4) the law of 1985; and (5) the law of 2000.
The Divorce Laws of 1920 & 1929The 1920 law deals with divorce and financial support under which a woman might be eligible to seek a divorce from her husband, The law restricted woman’s right to divorce to lack of husband’s economic support, such as desertion, disappearance, and imprisonment. Article 1 of the Law of 1920 provides that maintenance was a cumulative debt owed by the husband to his wife, it starts from the first time the husband failed to support his wife. Article 2 decreed the wife’s maintenance debt should be computed from the date of her divorce. Articles 4 and 5 included the husband’s failure to provide maintenance as sufficient grounds for divorce.
The law of 1920 provided that if the husband is absent or imprisoned and if he does not own a property from which the wife’s maintenance can be extracted, the wife is then entitled to a divorce on the grounds of non-support. And, if the husband lives in a distant place, or his location is unknown, the wife is granted a divorce at once. Article 6 provides the husband a further period to pay the maintenance, the waiting period of the menstrual cycle (iddah). A divorce obtained from the religious court in nonsupport cases is irrevocable, however, payment of the current maintenance is a sign of good will and sufficient to reverse the divorce.

The 1920 law provides that a wife may seek judicial divorce if the husband suffered from an irreversible illness such as madness, leprosy, or impotence, whether or not the illness was developed before or after the marriage. According to the law of 1920, women were not allowed to divorce if the husband claims poverty. In all these cases, women had to file for divorce in front of a male judge. At the same time, the law allowed men to exercise their divorce according to Islamic sharia by uttering the formula of divorce anywhere they choose.

The law of 1929 granted women right to seek judicial divorce according to Maliki School of jurisprudence in case the husband was absent for an extended period of time. This particular cause for divorce is not included in the Hanafi doctrine. According to the Maliki School, the judge may issue a divorce decree when the husband abandons his wife for more than one year without the knowledge of his wife.

The law of 1929 stipulates that a woman whose husband had been sentenced to more than three years may seek divorce after a separation of at least one year. This complies with the Maliki doctrine.
In view of the maltreatment inflicted on by men on their wives, the Egyptian government deemed it necessary to adopt the doctrines of the Maliki School of jurisprudence to make it easy for women to get out of their dysfunctional marriages associated with maltreatment and sufferings, a doctrine which is absent from the Hanafi School. The 1929 legislation allowed judges dealing with Islamic divorce to refer to Maliki School instead of Hanafi in order to grant a woman the right to divorce her husband in case of maltreatment.

Furthermore, the Law of 1929 grants the wife the right to seek judicial divorce in case the husband suffers from serious and incurable disease, if such a cause makes life harmful to women.
Article 6 of the law decreed that where a wife’s allegation of maltreatment detrimental to the continuation of marital relationship is substantiated and reconciliation becomes impossible, the judge (qadi) shall grant the wife an irrevocable divorce. To prove the harm and bad treatment inflicted by the husband, the wife must present two witnesses, whose testimonies will be subject to the unconstrained assessment of the judge who evaluates the evidence.

If the judge rejects the wife’s petition for divorce, twice, the law mandates that he appoints two arbitrators for the couple in accordance with the Quran injunction: “And if you fear a breach between the two, then send forth an arbiter, one from his family, another from hers” (Q. 4:35). Article 7 stipulates that if this is not possible, men acquainted with the circumstances of the case should be appointed. These men should conduct thorough investigation of the causes for the married couple and submit recommendations to the court for reconciliation if that becomes possible.

Article 10 provides that should the arbitrators indicate a deadlock, the judge is to order them to make a new attempt. If the new attempt fails, then other arbitrators are to be appointed. Article 11 stipulates that the final judgment of divorce is made after the newer attempts were fruitless and the prospect for reconciliation reached a deadlock.

The Divorce Laws of 1979 and 1985Under Islamic sharia, a Muslim husband is entitled to marry up to four wives at a time. In 1979 President Anwar Sadat issued Decree-Law No.44 to amend the previous laws of 1920 and 1929, mainly in the area of polygamous marriages. A new provision was added requiring that the husband’s remarrying without the first wife’s (or first wives’) consent be considered harmful and that if the husband remarries a second wife, his first wife is granted a judicial divorce upon her request provided that she became aware of his second marriage within a year from the day she got to know of his remarriage. The ground for such a divorce is based on the notion of harm inflicted on the wife. This law was criticized and challenged on the basis of restriction to polygamy which is considered legal and religiously legitimate in Islam.

In 1985, the Decree-Law No.44/1979 was declared unconstitutional on the grounds that it was passed by presidential decree and presented to the Egyptian Assembly as a done-deal. Later in the same year the Law No. 100/1985 was passed again with some revisions. It states that polygamy may be considered a possible source of harm, according to which a woman may seek judicial divorce. Under such circumstances, the wife presents the court with evidence showing the harm. The judge evaluates the evidence and issues his ruling. The law of 1985 does not prohibit the husband from having a polygamous marriage; it only offers a remedy to the first wife who would can seek divorce for damage resulting from her husband’s second marriage. A wife seeking divorce on this ground has to bring two witnesses to testify for the damage incurred. Such a procedure is lengthy and costly for the wife.

Although the law allows women to divorce for polygamy, in many instances, judges refuse to apply this provision, which they consider to be contrary to Islamic sharia and to the Constitution of Egypt. Article 2 of the Constitution of 1980 affirms that Islamic sharia is “The main source of legislation”. Accordingly, judges who opposed the new provisions in the divorce law brought up the “unconstitutionality” issue.

The Law of 2000In 2000, a new legislation was introduced in Egypt allowing women to seek judicial divorce in a procedure called Khul’, according to which, a married woman can request a judicial divorce in exchange for monetary compensation. This procedure is well known in Islamic sharia, but Egyptian judges did not intervene in such a divorce. Islamic sharia requires that the husband consent to this type of divorce without judiciary interference. The new law grants the wife right to seek a judicial divorce through khul’ without the consent of the husband. Under such divorce, the wife declares that she detests life with her husband, that the marital status between the couple has become impossible to continue, and that she fears she will not be able to maintain the “Limits of God” due the deteriorating relationship with her husband.

As a compensation for the husband, she has to forfeit her maintenance (nafaqah), her compensation of “mahr” and agrees to return to him the amount of “mahr” that he paid her at the marriage and she must renounce the amount of the “deferred mahr” (mu’akhar). The law of 2000 made it possible for a wife to get a “no fault divorce” from the judge after a lengthy process of reconciliation. For more on the khul’ divorce in Egypt, see our piece on this topic titled: “The Khul’ Divorce in Egypt”.
Anti-Women Sentiments in the Egyptian Law
It is extremely important to note that this discussion covering the Egyptian Personal Status Laws (or family law for the Muslim community) is derived from Islamic sharia and codified by the Egyptian government.

Furthermore, Muslim women seeking divorce in Egypt are denied equal access; they are at a distinct disadvantage for no reason other than they are women. Muslim women seeking divorce in Egypt must resort to the notoriously backlogged, inefficient court system and face procedural and evidentiary hurdles that are inherently discriminatory and may take several years to get a divorce.
When men initiate divorce, they do not have to go through reconciliation process. In fact a husband can divorce his wife in as little as one hour with the local marriage registrar. The wife does not have to be informed.
When women seek divorce, including those of domestic violence, they must submit to compulsory mediation in the name of family preservation and the biased notion that women are unable to make rational decisions about family issues. Many Egyptian Muslim women, including those in abusive relationships, refrain from ever attempting to seek divorce for fear of violence and potentially life-threatening marriages.

In all other court cases in Egypt, a woman’s testimony is worth half of a man. Therefore a woman living with a violent husband would need testimonies from two men, four women, or one man and two women to prove her case.

The khul’ law of 2000 failed to address the discriminatory aspects of the divorce system. Its introduction has spared women the need to specify grounds for divorce, but forced them to give up critical financial rights in exchange for divorce, such as returning any cash or property provided by her husband under their marriage contract. This option is limited only to women with significant resource or those who are desperate for a divorce.

Recognition of Egyptian Divorce in USAIn the United States, state courts decide on divorce cases. A divorce judgment issued in Egypt is generally recognized in the United States on the basis of “comity”, provided that both parties to the divorce receive adequate notice, such as services of process and at least one of them is domiciled in Egypt at the time of the divorce.

Egyptian women citizens of the U.S. must obtain divorce decrees from Egypt as proof of divorce. The documents must be authenticated by the relevant authorities in Egypt and the U.S. This is important to women who could not remarry without presenting proof that they are free to remarry. Egyptian Muslim women who remarry without obtaining a divorce decree from Egypt, their second marriage may be considered illegal. In Islamic countries, women who remarry without divorce documents, may be labeled as adulterous, and in some countries like Pakistan, Iran, Saudi Arabia and Sudan may be subject to the death penalty by stoning under strict interpretations of Islamic sharia.

DISCLAIMER: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

Republishing of this article is permitted.

Gabriel Sawma is a lawyer with Middle East background. Professor of Middle East Constitutional Law and Islamic sharia. Expert consultant on Islamic divorce in U.S. courts: http://www.islamicdivorceinusa.com/

Editor in chief of International Law blog: http://www.gabrielsawma.blogspot.com

Muslim Iranian Divorce in USA

2011-09-20T08:45:00.000-07:00

Muslim men with Iranian passports may choose to go back to Iran and obtain a fast track divorce in that country by stating three times, “I divorce my wife” in the presence of two male witnesses, show proof of the “mahr” payment, record the divorce in Iran, authenticate the documents, return back to the U.S. and seek recognition and enforcement of the Iranian divorce in a state court.

The Family Law in Iran was codified in 1928 and 1935 as part of the Iranian Civil Code. The law set a legal age requirement for marriage, prohibiting the marriage of girls under 13 and requiring court permission for the marriage of those under 15. In 1931, a separate legislation, known as the Marriage Law (qanun-I izdivaj) was enacted; it made marriage subject to state provisions and required the registration of all marriages and divorces in civil registrars. The law of 1931 expanded the grounds on which women could initiate divorce proceedings and required such actions to be brought before civil courts rather than Islamic sharia courts.
In 1967, the Family Protection Law (qanun-I himaya-I khanivada) was enacted. This law was considered a departure from the traditional Islamic sharia. It abolished the husband’s rights to extra-judicial divorce and polygamy, and increased the age of marriage to 15 for females and 18 for males. The law established special religious tribunals, headed by judges trained in modern jurisprudence. This law was criticized by Muslim clergy, calling it un-Islamic, and was regarded in violation of Islamic shria principles.

In 1975, the Family Protection Law was replaced by another law carrying the same title. This law increased the minimum age of marriage from 15 to 18 for females and from 18 to 20 for males, and provided the courts with discretionary power to decide cases involving child custody, disregarding Islamic sharia provisions.

Following the Iranian revolution or 1979 under Ayatollah Khomeini (1902-1989), the Family Protection Law was annulled and replaced by the Special Civil Court Act. The new law was entirely enacted in compliance with the Shiite law of ithnai Ashar (Twelvers), the courts are empowered to deal with a whole range of family issues, including divorce. According to the new law, legal marriage for girls plummeted to nine; 15 for boys, and members of the Iranian society were strictly segregated along gender lines. Women were forced to put hijab and were not allowed to appear in public with a man who was not a husband or a direct relation such as brother, father, or son. Women could be stoned to death for adultery, which incidentally, includes being raped. But the reformists under former president, Khatami, allowed single women to study abroad and raised the legal age for marriage from nine to 13 for girls. However, a woman’s testimony in Iran is worth half that of a man in court and in the case of blood money that a murderer’s family is obliged to pay to the family of the victim, females are estimated at half the value of a male.

In mid 2007, the government of Ahmadi Najad began enforcing restrictive laws; women wearing too much make-up and not enough scarf were arrested; they were first banned from attending the country’s popular soccer matches held in public stadiums, but later, under pressure, the president allowed women to attend the games on the ground that their presence would be “morally uplifting” and make the men behave better.

The new law requires marriage and divorce to be registered with the courts; the husband has unconditional right to divorce his wife for which he needs not to give any reason and his wife is almost certain to lose custody of her children. The new law allows the wife to divorce her husband under khul’, and even then she would have to present to the court a power of attorney from the husband allowing her to divorce herself on behalf of her husband. A woman is allowed to seek divorce if her husband was insane, impotent or infertile, absent from home without reason, imprisoned, or unable to support his wife. A woman seeking divorce in Iran must provide the court with supporting evidence to get a divorce decree.

Iranian Muslim couples faced with a divorce situation in the United States, see themselves in a dual process of having to go through civil as well as religious divorce, especially for a Muslim woman; she is prohibited by Islamic sharia from marrying a non-Muslim man unless he converts. Divorced Muslim men and women must obtain an additional religious divorce decree from Muslim authorities should he or she decides to remarry in compliance with sharia; civil divorce alone is not recognized in Islam. Under Islamic sharia, a Muslim woman or man is still considered married even though she or he has obtained a civil divorce. Failure to obtain an Islamic divorce before remarrying, the woman would be considered adulterous and might risk her life if she travels to a country where stoning for adultery is still in place, such as Pakistan, Iran, Sudan, and Saudi Arabia.

American Muslim men with Iranian passports may choose to go back to Iran and obtain a fast track divorce in that country. They get divorce decree by stating three times, “I divorce my wife” in the presence of two male witnesses, show proof of the “mahr” payment, record the divorce in Iran, authenticate the documents, return back to the U.S. and seek recognition of the Iranian divorce in a state court. Divorce obtained in Iran is less expensive to the husband; women get the amount of “mahr” as stipulated in the marriage contract, usually less than what a U.S court may rule on, and the divorce is obtained in a short time, without having to hire an attorney. Islamic divorce does not allow women to receive compensation other than the amount of “mahr” she and her family agreed upon before her marriage.

State courts in the U.S. deal with Islamic divorce obtained overseas on the basis of “comity”, a discretionary doctrine that governs the recognition of divorce rendered by the courts of a foreign country. Although occasionally, courts in England and the United States use the term “international comity” in the meaning of general international law, the more accepted concept of this doctrine defines it as rules of courtesy or goodwill which states observe in their mutual relations without any sense of legal obligations under international law. The desire for a Muslim man to obtain divorce from Iran and have it recognized and enforced in the United States, is generally entitled to recognition if it was valid and effective in Iran, and that Iran was the residence or domicile of both parties or at least one party. In other cases, recognition in the United States of a divorce obtained in Iran will depend on the way the divorce was obtained by mail, by default, by phone, or upon the appearance of both parties. A divorce obtained in Iran should not violate U.S. public policy and cannot be “repugnant” to major principles of U.S. law. State courts have the sole competent to recognize or to deny recognition of a divorce decree obtained in Iran.

Although divorce recognition within the United States is dependent on the concept of domicile, an Iranian divorce may be recognized where both parties appear in the action, even in the absence of domicile. In New Hampshire, a Muslim husband secured a Lebanese divorce, based on Islamic sharia by declaring that he pronounced the divorce of his wife by saying three times “I divorce you” in her presence and by going to Lebanon to consult an attorney and sign divorce papers. The New Hampshire family court refused to recognize the Lebanese ex parte divorce. The court reasoned that the wife would be forced to bear the burdensome cost of an ex parte divorce obtained in a foreign nation where neither party is domiciled.

ABOUT THE AUTHOR: Prof. Gabriel Sawma
Gabriel Sawma is a lawyer with Middle East background. Professor of Middle East Constitutional Law, Islamic sharia, and Islamic finance. Expert consultant on Islamic divorce in U.S.,
http://www.islamicdivorceinusa.com/
Editor in chief of International Law blog, http://www.gabelsawma.blogspot.com
Lecturer on Islamic economics, http://islamiceconomics101.com
Admitted to the Lebanese Bar Association of Beirut; Associate Member of the New York State Bar Association; Associate Member of the American Bar Association.
Email: gabrielsawma@yahoo.com
Email: gabygms@gmail.com
Tel. (609) 915-2237

Copyright Gabriel Sawma, Esq.

While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

Pakistani Islamic Divorce in U.S. Courts

2011-09-20T08:42:00.000-07:00

April 25, 2011 by Prof. Gabriel Sawma

Pakistani men residing in the U.S. travel to their homeland to get divorce decrees from Pakistan. They return back to the United States and seek recognition and enforcement of the Pakistani Islamic divorce decree in a state court. This article deals with the issues related to Pakistani Islamic divorce in U.S. courts.

Following the partition of Pakistan in 1947, the Islamic family law regulating marriage and divorce introduced under the British rule continued to govern until 1961 when the government of Pakistan passed the Muslim Family Law Ordinance (MFLO) to regulate divorce in that country.
The Constitution of Pakistan requires all laws to be brought in accordance with the Quran and the Sunnah which constitutes the deeds and sayings of Muhammad, the prophet of Islam. Chapter 3A establishes the Federal Shariat Court. The law of marriage and divorce is governed by the rules of Islamic sharia.

The law requires the age of males entering into marriage to be 18, and for females 16; there are penalties for contracting under-age marriages, though under age marriages in Pakistan remain valid regardless of the age limit. As to the guardianship issue, the law requires the application of the Hanafi School of Jurisprudence allowing a woman to contract herself in marriage without the consent of her guardian (wali).

The law requires mandatory registration for marriage; failure to register, however, does not invalidate the marriage. Legal constraints are placed on polygamy by requiring the husband to register his marriage at the local Union Council for permission and notification of existing wife/wives. The chairman of the Union Council establishes an arbitration council with representatives of both husband and wife/wives in order to determine the necessity of the proposed marriage. The law requires that the application must state whether the husband has obtained consent from the existing wife or wives. Violation to these rules is subject to fine and/or imprisonment and the husband becomes bound to make immediate payment of “mahr” to the existing wife or wives. However, if the husband does not obtain consent of his existing wife/wives, the subsequent marriage remains valid regardless of the provisions stated in the law; that is because provisions of Islamic sharia are superior to any other law in Islamic countries.

Under the rules of Islamic divorce in Pakistan, a husband can divorce his wife unilaterally, any time, in any place, and, without any obligation to state a reason for divorce. After the husband announces his divorce statement “I divorce you”, three times (triple talaq), the law mandates that the husband gives a notice in writing to the chairman of the Union Council. The chairman must forward a copy of the notice of divorce (talaq) to the wife. Non-compliance with these provisions is punishable by imprisonment and/or fine. The law requires that within thirty days of receipt of the notice of divorce, the chairman of the Union Council must establish an Arbitration Council in order to take steps to bring about reconciliation between husband and wife. If reconciliation is failed, a divorce takes effect after the expiration date of ninety days from the day on which the notice of repudiation was first delivered to the chairman. If the wife is found pregnant during the period following the announcement of divorce, the divorce does not take effect until ninety days have elapsed or the end of the pregnancy, whichever is later. Since the 1980s, and in view of the pressure from Islamic sharia scholars, the practice of the courts in Pakistan is that they validate a unilateral divorce by the husband (triple talaq) by pronouncing “I divorce you” three times, despite a failure to notify the Union Council; this is because Islamic sharia allows a husband to divorce his wife at will, without any provision regarding registration of divorce.

U.S. State family courts do not apply Islamic sharia because of violation of the Establishment Clause set in the U.S. Constitution. However, state courts can recognize divorce decrees issued in Pakistan on the basis of a doctrine in private international law known as “Comity”. Such recognition does not entail an obligation on State Courts to agree with the rulings of a foreign divorce judgment in Pakistan. The Doctrine of Comity is raised when the husband resides legally in the United States, travels to Pakistan, to obtain an Islamic divorce decree from a court in that country, obtains an easy divorce by just stating three times: “I divorce you”, or “I divorce my wife”, in the presence of two male witnesses or one male and two female witnesses; pays the deferred “mahr”, records his divorce in Pakistan, authenticate the documents through proper channels, travels back to the United States, serves his wife with divorce papers, and then seeks recognition and enforcement of the Pakistani divorce by a State Court.

Recognition of Pakistani Islamic divorce decree by a State court in the United States on the basis of “comity” is not mandatory. State courts may deny recognition and subsequent enforcement if the judge deems the Pakistani law is “repugnant” to a U.S. principle of law. Generally speaking, foreign divorce judgments are recognized on the basis of “comity” if the parties involved receive adequate notices, i.e., service of process, and, generally, provides one of the parties has a domicile in the foreign nation at the time of divorce, and the foreign court has given opportunity to both parties to present their case, and the trial was conducted upon regular proceedings after due citation or voluntary appearance of the defendant, and under a system of jurisprudence likely to secure an impartial administration of justice between the citizens of its own country and those of other countries, and no prejudice towards either party, and should not violate a strong U.S. principle of law.
An Islamic divorce decree in Pakistan differs substantially with respect to property division and the “mahr” stipulation. Under Pakistani Islamic law of divorce, wives are entitled to the deferred “mahr”, which is, in most cases, much less than what a State court in the U.S. grants the wife. State courts may not recognize a Pakistani divorce decree if the cause of action on which the divorce is based is “repugnant” to “Public Policy”.

Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

An authorization to publish this article is herby granted by the author.

Gabriel Sawma is a lawyer with Middle East background. Professor of Middle East Constitutional Law, Islamic sharia, and Islamic economics. Expert consultant on Islamic divorce in U.S. courts; editor in chief of International Law, http://www.gabrielsawma.blogspot.com; Instructor on Islamic economics, http://www.islamiceconomics101.com; Author of “The Aramaic Language of the Qur’an, http://www.syriacaramaicquran.com; Email: gabrielsawma@yahoo.com; Tel. (609) 915-2237. Visit our website at: http://www.islamicdivorceinusa.com/

Islamic Lebanese Divorce in USA

2011-09-20T08:38:00.000-07:00

Published: SEPTEMBER 18, 2011 I WWW.NEWJURIST.COM FOLLOW US ON: FACEBOOK LINKEDIN TWITTER YOUTUBE

TOPIC CATEGORY: ISLAMIC LAW

THE AUTHOR

Gabriel Sawma

American men with Lebanese ancestry may travel to Lebanon in order to obtain quick divorces. In such a situation, the man leaves most of his property, children, and wife in the United States. But could the divorce obtained in such a way be entitled to recognition and enforcement in the United States? BY GABRIEL SAWMA

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Historical Background

Lebanon was ruled by the Ottoman Empire from 1516 until World War One. Relief came in September 1918 when the British army moved along with the Arab forces into Palestine and opened the way for the occupation of Syria and Lebanon. At San Remo Conference held in Italy in April 1920, the Allies gave France a mandate over Greater Syria, which includes modern day Republic of Lebanon, and the Arab Republic of Syria. France then appointed General Henri Gouraud to implement the mandate provisions over the two countries.

As a result of the French mandate, the laws of Lebanon were greatly influenced by the French legal system and judiciary. Due to the fact the Lebanese population is heterogeneous; the leaders of the country developed a highly complex system of governing, whereby a complex power-sharing among the main religious communities, mainly Christians and Muslims were put into effect. By 1970, the balance of power between Christians and Muslims was threatened due to the influx of Palestinian refugees, fleeing from the 1970 civil war in Jordan; they were joined by the Lebanese elements that aligned themselves with the liberation of Palestine. That led to a civil war in 1975, which continued until 1990.

The Religious Court System in Lebanon

The judiciary in Lebanon is divided into four main court systems; each is spread among other subdivisions. The systems are: (1) the “qada’ Adli” or the judicial courts; (2) “Majlis al-Shura” or the administrative court system; (3) the military court system; and (4) the religious courts.

The religious court system in Lebanon is composed of the court systems of eighteen recognized denominations covering the three main religions of Christianity, Islam and Judaism. The jurisdiction of these courts is limited to family law matters and other matter defined by the law.

The Muslim courts are known as “al-Mahakim al-Shar’iyyah” for Sunni Muslims and al-Mahakin al-Ja’fariyah for Shia Muslims and another system for the Druze sect. There are also ecclesiastical courts for the different Christian denominations and a Jewish court for the Jewish community. Judgments of the Courts of First Instance are appealed to the relevant courts of Appeals for each denomination.

Source of the Islamic Family Law

The source of Islamic family law for the Sunni Muslims of Lebanon is based on the 1962 enactment known as The Law of the Rights of the Family, which stipulates that “the Sunni judge shall give judgment according to Hanafi doctrine, except in cases specified in the Ottoman Family Rights Act of 1917”. The Hanafi School of jurisprudence in Sunni Islam is one of four “schools of thought” or “schools of jurisprudence” (Arabic singular, madhab; plural, madhaheb) and is considered the oldest school of law. It was named after its founder, Imam Abu Hanifa (father of Hanifa) from Iraq (700 AD).

During the Ottoman Empire, the Hanafi School was the most spread and widely applied in the areas of marriage, divorce, inheritance, child custody and waqf (real estate establishments owned by the Muslim communities such as mosques, madrassas, and other religious institutions). In addition to the Hanafi doctrine, Muslims belonging to other schools of thought were allowed, under the Ottoman rule, at times, to have their cases looked at by other Islamic schools of jurisprudence, such as the Shafi’i, Hanbali or Maliki. All of them applied Islamic Sharia principles in Islamic family disputes. Sharia is the Arabic term for Islamic law. In Lebanon, the provisions of the Hanafi School are applied to Sunni Muslims in family issues involving marriage, divorce, child custody, inheritance and waqf.

Divorce in Lebanon under the Hanafi law

Under the Hanafi rules, a man can divorce his wife at will, any time, any place, with or without a reason, regardless of the wife’s approval or approval of the court. The husband does not have to bring any excuse for his divorce. He can do so using the “Triple Talaq” doctrine by uttering the following words three times: “You are divorced” or “my wife is divorced”, or “I divorce you” in the presence of witnesses. Such an announcement will terminate the marriage immediately.

For the purpose of documentation, the husband has to have the religious court sign off on his divorce in the presence of two male witnesses, or one male and two female witnesses. The only obligation on the husband is to pay his wife the ‘mahr’ as stipulated in the marriage contract. The ‘mahr’ consists of the amount of money or its equivalent that the husband gives his bride at the wedding or during the divorce. It can be paid partially or in full, at the wedding or during the divorce. The amount of the ‘mahr’ paid at the divorce does not take into consideration the inflation aspect. For example, a woman who was married twenty years ago and whose ‘mahr’ was worth one thousand US Dollars at the time of marriage, will receive that amount only without any interest, which might be worth much less at the time of divorce.

The “Triple Talaq” doctrine can be used by the husband only. The wife does not have the same privilege. A wife seeking Islamic divorce in Lebanon must go through a judicial process; her request must fall under certain criteria, typically khul’s, abuse, and mistreatment; inability to provide financial support, prolonged absence from the home or incarceration. Under such circumstance the wife has to prove her claims and it is up to the court to agree to her request or disagree.

Recognition in the U.S. of Islamic Divorce Obtained in Lebanon

American men with Lebanese ancestry may travel to Lebanon in order to obtain quick divorces. In such a situation, the man leaves most of his property, children, and wife in the United States. But could the divorce obtained in such a way be entitled to recognition and enforcement in the United States?

Recognition of foreign divorce judgments by U.S. courts is based on the principle of ‘comity’ in private international law. The U.S. Constitution does not require that states should recognize and enforce foreign divorce judgments. State courts will only recognize foreign judgments of divorce if the decree obtained overseas is in accordance with the principles of comity among nations. This means that due regard to international duty and convenience, and the sense that respect is due to the judicial act of another nation, comity becomes a deference accorded to the foreign decree to the extent that it is enforceable in the country which rendered it, provided that the foreign court has jurisdiction and due process was provided to the parties involved and that public policy of the state in which the recognition is sought is not violated. Should the decree fail to meet these criteria, it will not be recognized as such.

The most important criterion that a state court will consider is the domicile of the parties at the time of the foreign divorce was obtained. State courts will consider recognition of a foreign judgment of divorce under the doctrine of comity if the Due Process Clause of the Fourteenth Amendment was respected and most importantly, if the public policy of the state was not violated.

About the Author

Gabriel Sawma, a lawyer with Middle East background, dealing with International Law, mainly the European Union Law, the Middle East Law and Islamic Shari'a law. Professor of Middle East Constitutional Law, Islamic Shari'a, Arabic at Fairleigh Dickinson University, NJ. Professor of Islamic Finance at the University of Liverpool, UK. Professor of Islamic Economics at Islamic Economics, http://www.islamiceconomics101.com.

Expert consultant on Middle East affairs, terrorism and authority on Islamic Shari'a, including Islamic marriage contracts, the mahr, Islamic banking and finance, Islamic inheritance and child custody. Admitted to the Lebanese Bar Association of Beirut. Associate Member of The New York State Bar and the American Bar Associations. Author of an upcoming book on Islamic marriage Contracts in U.S. Courts and the mahr issue. For free initial consultation, email: gabrielsawma@yahoo.com. tel: 609-915-2237

Islamic Marriage Over the Phone

2010-04-10T18:25:00.000-07:00

Can you get married over the phone?

By Kathryn Westcott
BBC News

A marriage is a time for celebration and joy, and cricketer Shoaib Malik will no doubt be eager to put the embarrassing episode of his first marriage far behind him before getting hitched to Indian tennis star Sania Mizra next week.

Smooth operator: Malik was apparently married over the phone in 2002

There will be a huge difference between the two marriages - he'll be present in person for this one, not merely on the end of a telephone line.

Malik is reported to have conducted an internet and telephone relationship with Ayesha Siddiqui from Hyderabad, finally tying a long-distance knot with her in 2002.

According to a story on the front page of the Indian daily newspaper The Hindu, telephone marriage has taken off among Indian Muslims, and in many Muslim countries.

"Marriages are made in heaven. But in this age of information technology they are taking place over the net and telephone too," it says.

But many people, it continues, have been left "wondering whether telephonic marriage is legitimate at all."

'Everything is possible'

The Times of India has reported that Muslim clerics are divided over the legitimacy of "phone marriage", with one arguing that it is not valid because the witnesses need to be present, alongside the bride and groom, to sign the marriage contract.

Ayesha Siddiqui's mother says she is happy with the divorce

"Telephone nikah (matrimonial contract) is no longer valid, simply because all four parties cannot be at the same place to sign the nikahnama (wedding registration certificate) if the nikah is taking place over the telephone, with the bride and groom in different cities or countries," Mohammed Khader Ali, Sadar Qazi, chief Qazi of Hyderabad, was quoted as saying.

But international lawyer Gabriel Sawma, an authority on Sharia law - including Islamic marriage contracts - argues that telephone marriages, and even internet marriages, could be perfectly legal.

"There are so many cases of marriages being conducted in so many different ways - everything is possible within reason," he told the BBC News website.

Both the Malik and Siddiqui families are said to follow the Hanafi school of Islamic tradition.

Mr Sawma explained that in his view, a marriage contract agreed upon by a telephone conversation is valid as long as it satisfies the main Hanafi requirements, including:

a proposal to marry and acceptance by the other party
providing witnesses: two male witnesses or one male and two females attesting that they heard the telephone conversation
a financial or "mahr" provision

The mahr, he explains, is an amount of money, or any object that has value, that will be given by the groom to the future bride.

"Mahr is an obligation on the husband and is a necessary component of any Islamic marriage contract," said Mr Sawma.

In the Hanafi tradition, the mahr is divided into a "muqaddam" (upfront), to be paid at the time of signing of the contract and a muakhar (deferred) to be paid at the time of divorce or death, he explained.

Quickie divorce

He said that the proposal must be clearly expressed and it must be met with a clear acceptance.

The husband has the right to divorce his wife by simply stating: 'I divorce you, I divorce you, I divorce you.'

Gabriel Sawma, international lawyer

"Should these three elements occur, the marriage will be considered legal and binding. The contract does not have to be written. It can be verbal and will have the full force of the law under Islamic Sharia," said Mr Sawma.

He drew parallels with the practice of couples entering into a marriage via correspondence, centuries ago.

"As long as the letters contained all the requirements and were signed in front of witnesses, this would constitute a marriage contract," he said.

Given the level of interest in the marriage, Shoaib will be no doubt thankful that the divorce was relatively straightforward. In a number of countries - including India - a Muslim man can divorce his wife in a matter of minutes.

This has included divorce by mail, over the phone and even via mobile phone text messages.

"In the Hanafi jurisprudence, the husband has the right to divorce his wife at any time or in any place at will by simply stating: 'I divorce you, I divorce you, I divorce you,' says Mr Sawma.

His wife will be immediately divorced if there are at least two male witnesses. The husband is then obligated to give "nafaqa" (alimony) to his wife for three months.

Shoaib has apparently agreed to pay 15,000 rupees (about $337; £220) to Ayesha for three months.

According to many reports, Shoaib's divorce means that he is now free to marry Sania next week. But technically, they could have got married anyway, as Islam allows a man to take four wives as long as he is able to meet all their needs.

Gabriel Sawma is a lawyer with Middle East background. Professor of Middle East Constitutional Law, Islamic sharia, and Islamic economics. Expert consultant on Islamic divorce in U.S. courts

Editor in chief of International Law

Instructor on Islamic economics

Islamic Shari'a in Theory and Practice

2010-04-08T18:12:00.000-07:00

Excerpts of the lecture on "Islamic Shari'a in Theory and Practice" presented to the College at Florham Library and PubliMind Poll of Fairleigh Dickinson University, April 5, 2010. The speaker was Professor Gabriel Sawma.. You may see the lecture in its entirety at the following link:
http://youtu.be/XUKcsCAiDbE

In 1979, the Soviet Union invaded Afghanistan for the purpose of establishing a communist regime in that country. The following ten years witnessed the death of close to one million people. As a result there were tens of thousands of children who have lost their parents.

The United States, being an adversary to the Soviet Union back then, along with Saudi Arabia, initiated an effort to establish schools for those children in Pakistan. The schools came to be known as "madrassa" an Arabic term, means 'school'; the etymology of the word is Aramaic "D R SH"; Syriac "madrashto". The students came to be known as "Taliban" from Arabic 'talib', meaning student.

You would think those "Taliban" will study math, physics, geometry, history, etc. None of that happened; instead they were taught how to memorize the Quran. In Islam, there is more emphasis on memorizing the text of the Quran than understanding its meaning. Understanding the meaning of the Quran in Arabic is not an easy task.

The Soviet Union Withdraws from Afghanistan
In 1989, the Soviet Union withdrew its forces. The "Taliban" returned to their country. Another civil war erupted. In 1994, the "Taliban" started their occupation of the the major cities. They commanded, under the leadership of Mulla Umar, that Islamic Shari'a should be the law of the land.

In 1996, the general presidency of Amr Bil Maruf, issued a series of ordinances. Among those are the following:

1- To prevent music.
2- To prevent beard shaving and its cutting. After one and a half months, if anyone observed who has shaved his beard, he will be put under arrest.
3- To prevent keeping pigeons and "playing with birds".
4- To prevent kite-flying. The kite shops were order to close down.
5- To prevent idolatry by removing any picture displayed. Displaying pictures under the Taliban was prohibited.
6- To prevent gambling.
7- To prevent "the British and American hairstyles."
8- To prevent the "riba" (i.e. interest rate on loans.)
9- To prevent "washing cloth by young ladies along the water streams in the city. Violators ladies should be picked up with respectful Islamic manner, taken to their houses and their husbands severely punished."
10- To prevent music and dances in wedding parties. "In the case of violation the head of the family will be arrested and punished."
11- To prevent "sewing ladies cloth and taking female body measures by tailor. If women or fashion magazines are seen in the shop, the tailor should be imprisoned."
12- To prevent sorcery. All the related books "should be burnt and the magician should be imprisoned until his repentance."

The Taliban issued further rules regarding work in the hospitals and clinics. This includes:
1- Female physicians can see female patients. In case a male physician is needed, the female patient should be accompanied by her close relative.
2- Male physicians can check the "affected part of her body" only.
3- Waiting room for female patients should be "safely covered".
4- At night, male doctors are not allowed to visit female patients, unless the patients request that.
5- Male physicians are not allowed to communicate with female physicians without a "hijab."
6- Female doctors should wear simple clothes; they are not allowed to wear stylish clothes or use cosmetics or make-up.
7- Female physicians and nurses are not allowed to enter the rooms where male patients are hospitalized.
8- Hospital staff should pray in mosques on time.

All of these rules and regulations were instituted in the name of Islamic Shari'a.

Today, there are several countries whose laws are bound by Islamic Shari'a; they are: Pakistan, Iran, Saudi Arabia and Sudan. In recent years, Nigeria and Somalia started implementing Islamic Shari'a as well.

What is Islamic Shari'a?
Shari'a is defined by Muslim scholars as "the way" Muslims should live by. It is a "path" like "shiraa'" (i.e. sailing ship.) It is derived from the sacred texts of Islam: The Quran and the Sunnah.

1- The Quran, which is composed of the Revelations descended on the Prophet of Islam begining in 610 AD until his death in 632AD.

2- The Sunnah, which includes the saying and deeds attributed to the Prophet of Islam.

In Sunni Islam, there are 4 Schools of jurisprudence, they are: Hanbali (precursor of the Wahabi), Hanafi, Shafii, and Maliki.

I- The Quran
The etymology of the term is Eastern Syriac "Qiryana", or Western Syriac "Qiryono" meaning "a reading", or "call". The Syriac Orthodox Church still uses the term "qiryono" in its liturgy.

The Quran contains the revelations, which descended on the Prophet of Islam, when he was 40 years old. The revelations descended from Allah (God) through the angel Gabriel (Arabic Jibreel.)

The Quran states that the Prophet of Islam was "ummi" (unlettered.)The final compilation of the Quran occurred under the auspices of the 3rd. caliph, Uthman. This compilation is known as "Musshaf Uthman."

Muslim scholars believe that the Quran is miraculous because it was revealed to the Prophet who is called "ummi". The text consists of 114 chapters, each known as "sura". Some of its chapters were revealed in Mecca, others in Medina. Each "sura" or chapter is formed from several "ayat" (i.e. verses). The number of verses differs from one chapter to another. The script of the modern text differs from the earlier Kufi and Ma'eel scripts, which did not contain the diacriticals or the vowel signs.

The Quran calls for warship of Allah alone, with no partner and no companion and no son. This runs contrary to the Christian belief in the Holy Trinity.

The Quran claims that Christians and Jews have corrupted the texts of the New Testament and the Old Testament without offering evidence to that effect.

The Quran states that those who reject its teachings, will face torment for their disbelief.

It lays down the commands that every Muslim must abide by. It sets obligations on the believers for what to do and what not to do.

The Quran commands the believers to believe in "The Day of Judgment." It also talks about the tales of previous nations.

It talks about the dress code for women and contains penalties (hudud) for violation of certain norms such as adultery and theft.

It describes the life in Paradise and Hell and sets out conditions for the marriage contracts and divorce.

It prohibits interest rate on loans "riba" and regulates commerce and trade among people.

It abolishes certain trends that were current in the Prophet's environment in Arabia, such as the burying of infant girls alive.

It abolishes the worship of deities. The worship should be to Allah alone.

It gives specific details on inheritance share among Muslims.

The Quran is considered to be the first source of the Islamic Shari'a. Every single verse constitutes the supreme authority and commandment.

Shi'a Islam

Shi'a Islam on the other hand believe in the Quran and the teachings of the Prophet of Islam and his family, and sometimes, it is referred to as the "School of Ahlul Bayt" (the family of the Prophet, or "Shi'a Ali". They spread into several branches, prominent among them are:

1- The Twelvers; they believe in the lineage of the Twelve Imams. They believe that the descendants of Muhammad through his daughter Fatima Zahra and his son-in-law Ali are the best source of knowledge about the Quran and Islam. The Twelvers recognize the succession of Ali, Muhammad's cousin and son-in-law and the first man to accept Islam (second only to Muhammad's wife, Khadija), the male head of the Ahlul Bayt as opposed that of the caliphate recognized by Sunni Muslims. The Twelvers believe that Ali was appointed successor by Muhammad's direct order on many occasions, and that he is therefore the rightful leader of the Muslim faith. The Twelvers constitute 85% of the Shi'a population. They are mainly in Iran and Lebanon.

2- Zaidi, mainly found in Yemen.

3- Isma'ili, they are found in Kufah (Iraq), Afghanistan, Pakistan, Uzbekistan, India, Yemen, China and Saudi Arabia.

II- The Sunnah
The Sunnah constitutes the sayings and practices attributed to the Prophet of Islam. Those sayings and deeds are recorded in the volumes of Hadith literature. It includes everything the Prophet of Islam said, did, or agreed to.

During his ministry, the Prophet of Islam, his family and companions observed him and shared with others what they had seen in his words, deeds and behaviors. People asked him directly for rulings on various matters, and he would pronounce his judgment.
His sayings and deeds were passed on and recorded in the Hadith literature, which is called the Sunnah. It constitutes the second sacred source of the Islamic Shari'a.

III- Non-Sacred Sources, the Ijma'
Ijma' is defined as the consensus among Muslim jurists on a particular legal issue. This constitutes the third non-sacred source of the Islamic Shari'a. It has been considered a third source because the Prophet of Islam says in the Sunnah: "My followers will never agree upon an error or what is wrong."

Sunni jurists consider ijma' as a source, in matters of legislation, as important as the Quran and Sunnah. While Shi'a jurists, consider ijma' as source of secondary importance, and a source that is not free from error.

Who is Eligible to Participate in Ijma' in Sunni Islam?
Hanafi: public agreements of Islamic jurists; Shafii: the agreement of the entire community and public at large; Maliki: the agreement among the residents of Medinat Rassul Allah (i.e. Medina); Hanbali: agreement and practice of Muhammad's Companions.

IV- Qiyass
This is defined as the analogical deduction. It is the fourth source of Islamic Shari'a in Sunni Islam.

Shi'a jurisprudence do not accept the qiyass; they replace it with reasoning "aql" or "ijtihad."

When a jurist is confronted with an unprecedented case, he bases his argument on the logic used in the Quran and Sunnah. Jurist's ruling is not based on arbitrary judgment, but rather the primary sources of the first two elements. Supporters of this 4th element often point to passages in the Quran that describe an application of a similar process by past Islamic communities. In one Hadith, the Prophet is reported as saying: "Where there is no revealed injunction, I will judge amongst you according to reason."

The qiyass is sanctioned by the ijma', or consensus, and among the companions of the Prophet of Islam. But Sunni Schools of jurisprudence differ on the importance attached to the qiyass. They express the following opinions: the Hanafi school of thought supports qiyass very strongly; the Shafii accepts qiyass as a valid but weak source of Islamic Shari'a; the Maliki accepts qiyass as a valid source of legislation and added "public good" to the determination.

V- 'Urf
Referred to as the customs and practices of a given society. 'Urf is not recognized officially as source of Islamic Shari'a.

Customs that were prevailed during the time of the Prophet of Islam were recognized as source of Islamic Shari'a, provided that Islam did not abrogate those traditions.

'Urf holds as much authority as ijma' (consensus) and more than qiyass as long as it does not violate provisions from the Quran or the Sunnah.

Application of the 'urf is recognized in the Sunni jurisprudence if the tradition under consideration commonly prevails in the region in which it is implemented. Traditions of foreign jurisdictions can not be accepted as 'urf in aother jurisdictions.

If the 'urf contradicts Islamic divine texts, the customs are considered illegal and should be disregarded. If 'urf contradicts a qiyass (analogical deduction), then it is given a preference and must supersede the qiyass.

Shi'a do not consider 'urf as source of jurisprudence.

Gabriel Sawma, adjunct Professor at Fairleigh Dickinson University, admitted to the Lebanese Bar Association; Associate Member of the New York State Bar and the American Bar Associations. Author of "The Qur'an: Misinterpreted, Mistranslated, and Misread. The Aramaic Language of the Qur'an." Expert Consultant on Islamic Shari'a in US Courts in matters related to Islamic divorce, Islamic banking and finance. Email: gabrielsawma@yahoo.com; Tel. (609) 915-2237

The khul' divorce in Egypt

2010-01-18T09:13:00.000-08:00

'Let's talk about sex, divorce' in Egypt

By Olivia Sterns for CNN

Egyptian couples arrive at a Cairo stadium for a collective wedding organised by Karme el-Islam association in 2007.

STORY HIGHLIGHTS

Once taboo, sex and divorce are now popular topics in Egyptian media
Women are voicing these issues on blogs, talkshows and the radio
Divorce rates are surging in Egypt as women's rights improve

RELATED TOPICS

London, England (CNN) -- A growing number of Egyptian women are demanding a divorce and seeking counsel for their marriages, as the social stigma against it weakens and talking about relationship problems becomes more popular in the media.

Once considered taboo to discuss in public, private relationships between men and women are now the hot topic of television talk shows, radio programs and blogs. Mahasen Saber, host of Divorce Radio, says that her program is helping to break the stigma.

"People are shocked at first, but after they read and listen to what we write and present, they like what we talk about...they are happy because I am talking about something they are dealing with" Saber told CNN.

Earlier this year she launched the radio show to complement her blog called "I Want A Divorce."

In 2008 the number of Egyptian couples who divorced increased 8.4 percent over the previous year, according to the Central Agency for Public Mobilization and Statistics (CAPMAS).

In most cases couples simply don't know how to deal sexually with their partner
--Dr Heba Kotb, Egyptian sexologist

Nearly 40 percent of marriages in Egypt now end in divorce, making it the highest rate in the Arab world. Egypt is also one of the few countries in the region where the topic is discussed so freely, thanks largely to the initiative of outspoken women.

"Women are taking advantage of new media outlets to voice their concern," said Nadya Khalife, a Human Rights Watch researcher focused on women's issues in the Middle East. "They are talking more openly about these issues. They are becoming less shameful in Egyptian society."

Those issues include sex. Dr. Heba Kotb is a leading sexologist in Cairo who appears regularly on TV. She has two PHD's, one in sexuality from the University of Florida, and she considers herself a conservative Muslim. Dr. Kotb attributes 80 percent of divorce in Egypt to sexual problems.

"In most cases couples simply don't know how to deal sexually with their partner," she told CNN. "I provide the information -- this is right, this is wrong, you should do this."

"Often it is just miscommunication. The psychology of men is not understood by women and vice versa."

When Dr. Kotb started her practice eight years ago, she saw only a handful of patients per week. Today she is booked months in advance. "People now think it does not have to be the end of the marriage when they have problems. [They think] it's worth it to give counseling a try."

For Egyptian women, getting divorced has traditionally carried with it a severe stigma. "The main perception of a woman who is divorced in Egypt, or in any Arab country, is that she is evil or something is not right ... that she has done something wrong" said Saber. "I started Divorce Radio to change that view."

"The stigma has nothing to do with religion. It's culture," said Madiha el Safty, professor of sociology at the American University in Cairo. "Egypt is a patriarchic society, very male-dominated. Men always blame women for all their problems, but the stigma [against divorced women] has eased"

"It has to do with the the rights of women. Now we have more rights -- in education, employment, we have more economic independence. So [women] are less willing to accept an unhappy marriage," Dr. Kotb told CNN.

Dr. Kotb also blamed the high rate of divorce on the fact that "a relationship equals marriage" in Egypt. "In the West, it's a matter of breaking up. Here there is no living together."

Saber agreed: "In Egypt, there is no space to have a relationship without marriage. It's the dream of every girl in Egypt to get married," she said.

In Egypt marriage falls under family law, which is based on Shari'a, Islamic religious law, and which gives men and women unequal rights to a divorce.

"In Islamic Shari'a, a man can divorce his wife at any time, in any place, and for any or no reason by simply uttering the following words: "I divorce you, I divorce you, I divorce you," explained Gabriel Sawma, an attorney specializing in Muslim divorce law and professor at Farleigh Dickinson University.

Women, on the other hand, can get a divorce only through court action, in a much more formal legal process.

In 2000, Egypt liberalized their laws, granting women the right to initiate a "no-fault" divorce (khula). Though this is considered a step forward, women are still required through khula to relinquish any claim to alimony or their dowry.

"There was an effort to modernize divorce," said Prof. Sawma. "Before, the man was not obligated to agree to a divorce."

Editor in chief of International Law

Instructor on Islamic economics

Do Sanctions on Iran Work?

2009-10-16T20:31:00.000-07:00

Three weeks ago, Iran revealed that it had a uranium-enrichment facility near the holy city of Qum. The U.S. began working with its allies, mainly France and Great Britain for a fresh round of sanctions against Tehran. This article addresses the effect of sanctions on Iran

Iran’s nuclear program has been a matter of international concern ever since the discovery in 2003 that it had concealed its nuclear activities for 18 years in breach of its obligations under the Non Proliferation Treaty (NPT). In March 2007, the United Nations Security Council acted unanimously to tighten sanctions against Iran, imposing a ban on arms sales and expanding the freeze on assets, in response to the country’s uranium-enrichment activities, which Tehran says are for peaceful purposes, but other countries, including USA, France and Great Britain, contend are driven by military ambitions.

On the last Friday of August, the U.N. International Atomic Energy Agency (IAEA) released its latest report on Iran’s nuclear-energy program, announcing that it “does not consider that Iran has adequately addressed the substance of the issues.” U.S. State Department spokesman Ian Kelly said in response to the report, “it seems clear that Iran continues to not cooperate fully and continues it enrichment activities.”

Since 1987, U.S. government agencies have implemented numerous sanctions against Iran: U.S. Treasury oversees a ban on U.S. trade and investment with Iran. This ban may be circumvented by shipping U.S. goods to Iran through other countries; The U.S. State Department administers laws that sanction foreign parties engaging in proliferation or terrorism-related activities with Iran. The State Department and Treasury can use financial sanctions to freeze the assets of targeted parties and reduce their access to the U.S. financial system. In addition, the U.S. imposes travel and sanctions to Iran. But do these sanctions work?

U.S. politicians have talked up for months that U.S. can block sales of refined gasoline to Iran as a way of ratcheting up pressure on the government of Mahmoud Ahmadinajad. During last year’s U.S. presidential campaign, the idea of blocking refined gas to Iran was raised by the candidate Obama as “putting the squeeze” on Ahmadinajad. In April of this year, the U.S. Senate introduced a bipartisan Iran Refined Petroleum Sanctions Act, which would expand the sanctions imposed by President Bill Clinton in 1996. The Act gives the White House the authority to sanction companies that export gas to Iran. But how effective is this action?

Iran sits on a vast source of energy reserves –about 136 to 140 billion barrels of oil and some 14 trillion cubic meter of natural gas. But because its refineries are too few and too old to meet the demand at home, the country refines just two-thirds (440,000 barrels/day) of the gas it needs to keep the economy working for 66 million people. The remaining one-third, or about 120,000 barrels/day has to be imported from a fairly small number of Swiss, Indian, Malaysian and Chinese firms. Major Western oil companies operating in Iran, including Total, Royal Dutch and ENI, have held off from signing new deals with the Iranian government for several months.

Iran‘s government of Ahmadinajad, keen to keep voters happy, have subsidized gas. Iranians are entitled to 26 gallons of fuel a month at a price of 38 cents per gallon. If U.S. blocked imports of refined gas, the Iranian government could simply ease its subsidies and blame the U.S. for the suffering of its people. Subsequently, the demand for refined oil will dip.

On the other hand, China’s booming population and its increased demand for oil has been working on massive upgrades of Iran’s refineries. If Iran can upgrade its refineries, they will be self sufficient for few years to come. China estimates that crude oil imports will rise to meet 60 percent of its demand by 2020. That led Beijing in the midst of the nuclear debacle with Iran, to strike a deal with about $2.5 billion. Last month, the China National Petroleum Corporation sealed an agreement with the National Iranian Oil Company, a state-run enterprise, to develop an oil field in Southwestern Iran.

Recently, Iran’s ties with China have accelerated rapidly. In December 2007, the Chinese oil giant Sinopec Group signed a $70 billion deal to begin drilling in Iran’s Yadavaran field. Its estimated reserves can reach 17 billion barrels. In January of this year, China’s largest energy producer, CNPC, agreed to develop an oil field in the North Azadegan, a deal worth $2 billion. In August, Iranian oil officials flew to China to negotiate a $5 billion deal with CNPC for the development of South Pars gas field near the Arabian Gulf. Combine that with the fact that Iran already provides about 14 percent of China’s oil needs. Having invested tens of billions of Dollars in Iran’s energy sector, China, a permanent member of the United Nations Security Council, may veto any new tough sanctions against Iran.
On Thursday China said is was seeking to increase cooperation and high-level exchanges with Iran, suggesting a remote possibility of agreeing to additional punitive measures of Iran’s nuclear program.

Russia, for its part is preparing to sign a deal for the sale of anti-aircraft technology to Iran, and has less appetite to agree on tough sanctions, despite the initial jubilant reaction of President Dmitry Medvedev over Mr. Obama’s scrapping of the Eastern European missile shield program. In his meeting with President Obama at the United Nations last month, President Medvedev said that “sanctions rarely lead to positive results, but sometimes, sanctions are inevitable.” He reiterated his views to Secretary of State Hillary Clinton in Moscow on Tuesday, American officials said. Russia’s Prime Minister, Vladimir V. Putin, said that sanctions were “premature” and two days after its foreign ministry, Sergey V. Lavrov, said that threatening Iran while talks were under way would be “counterproductive.”

So far, Iran has managed since June 2007 to reduce its gasoline imports from 40 percent of total domestic consumption to 25-30 percent without political fallout. Moreover, with Russia and China willing to supply Iran with gasoline, a situation over which the United States has limited leverage, it would seem difficult for the U.S. to enforce any embargo short of military-backed blockade, or a military strike on Iranian nuclear facility by the U.S. or by Israel.

Military blockade or strike may encourage Iran to sabotage the oil fields in southern Iraq, risking 1.8 million barrels/day of oil export for several weeks and possibly months. In addition, Iran can sabotage the oil fields in the Arabian Gulf or even close the Straight of Hurmuz, through which about 20 percent of the world’s oil export passes. In either situation, the price of energy will spike and that will reflect on the U.S. fragile economic recovery, and may cause the U.S. Department of Energy to release the Strategic Petroleum Reserve (SPR), which stores about 700 million barrels of crude oil, capable of supplying 4.4 million barrels a day for up to 90 days.

No matter how tough the sanctions are, there is always room for American products to find its way into Iran. Most U.S. exports are found in the markets of Tehran, from GE refrigerators to Apple laptops and other items. They are smuggled via the Arabian Gulf States. In addition, the sanctions have restricted U.S. companies from doing business in Iran and opened the door for Russia, Chinese and other European firms to do business in Iran.

Gabriel Sawma is Professor of Middle East Constitutional Law; Author of “The Qur’an: Misinterpreted, Mistranslated, and Misread. The Aramaic Language of the Qur’an.” http://www.syriacaramaicquran.com; Expert consultant on Islamic divorce in US courts; Editor of International Law blog: http://www.gabrielsawma.blogspot.com; Email: gabrielsawma@yahoo.com

Gabriel Sawma is a lawyer with Middle East background. Professor of Middle East Constitutional Law, Islamic sharia, and Islamic economics. Expert consultant on Islamic divorce in U.S. courts

Editor in chief of International Law

Instructor on Islamic economics

Annulment of Islamic Marriages

2009-10-06T17:02:00.000-07:00

According to Islamic jurisprudence, a man can divorce his wife at any time, in any place, and for any or no reason. However, a woman is given the right to request the religious judge (qadi) to annul (faskh) her marriage if she can prove that the marriage exhibits certain defects that make achieving the purposes of the marriage impossible.

A husband’s impotence is ground for termination of marriage, provided that the condition lasts more than one year according to the Hanafi School of thought in Sunni Islam. In some cases, if the husband contracts leprosy, the wife may seek separation. At the spouse’s request, the religious judge may issue an order of annulment if the other party contracts serious communicable illness, whereby it becomes barrier to the enjoyment of marriage.

Religious unsuitability is another barrier. According to Islamic Shari’a (law), a Muslim woman is not allowed to be married to a non-Muslim (Jewish or Christian or Hindu). A marriage of Muslim woman to non-Muslim man is subject to annulment by the religious court. Should a non-Muslim married woman convert to Islam; the religious judge may force the couple to separate and the marriage to be terminated. The non-Muslim husband is obligated to pay the necessary mahr and nafaqa (spousal support).

A woman coerced, by person other than her father or paternal grand-father, to marry, may ask the religious judge to annul the marriage on the basis of “unsuitability” in class, education, wealth or others. She may also request an annulment if she was made to agree to an arranged marriage during her legal minority. In this case, she can ask a religious judge to annul her marriage provided the following conditions are met: (1) the marriage was arranged by a person other than her father or paternal grand-father; (2) she has to request the annulment as soon as she becomes in her majority.

Request for termination of a marriage by the wife is permissible when the husband doe not support his wife with food, shelter and clothing (nafaqa) either due to poverty or he disappeared without leaving his wife with adequate support. However, opinions differ on this matter from one School of thought to another. The Hanafi School of jurisprudence does not encourage a divorce based on the husband’s inability to provide for spousal support (nafaqa). The Hanbali and Shafi’i Schools, for the purpose of maintaining a wife or let her go, agree with a request of termination of marriage by the wife.

The Hanafi School allows a wife to be separated and her marriage be annulled only if she received confirmed news that her husband has divorced her legally, died, or changed his religion and became apostate, otherwise, the wife is considered still married no matter how long the husband is absent.

Publication or reprinting this article is hereby authorized by the author.

Gabriel Sawma is a lawyer with Middle East background; Professor of Middle East Constitutional Law and Arabic. Admitted to the Lebanese Bar Association; Associate Member of the New York State Bar and the American Bar Associations. Editor of International Law web log, http://www.gabrielsawma.blogspot.com; Email: gabrielsawma@yahoo.com

The Wali (Guardian) in Islamic Marriages According to the Hanafi Jurisprudence

2009-08-17T18:09:00.000-07:00

In Islamic marriages, the wali (guardian) has an important role to play. This article discusses the responsibility of the wali according to the Hanafi jurisprudence.

The “wali” or guardian in Islam is a Muslim individual responsible for the well being of the bride before her marriage. His duty is to ensure that the groom is reliable and trustworthy to marry the bride and carry out his obligations as husband.

The Hanafi School of jurisprudence assigns the “wilayah” (guardianship) to the following individuals: the son of the bride if she was previously married, his son, and the grandson’s descendants. If the bride was not married before, the succession of guardianship goes to: the father, her paternal grandfather and above in the paternal succession, the brother from her parents, brother from her father, son of the brother from her parents, his paternal descendants, the uncle from the father’s parents, uncle from the father, her male cousin from his parents, cousin from his father, the cousin’s son, his paternal descendants, father’s uncle from parents, father’s uncle son from father, his paternal descendants, etc.

The above mentioned individuals have “wilayah” (guardianship) over the bride when she is under age. Not only minors could be married off by their guardians, other legal incompetents, including the insane, could be married off too by the guardians. Guardianship ends at the age of legal majority except for the mentally challenged children, male or female.

In the event none of the paternal “wali” listed above is available for guardianship, the Hanafi School allows any member of the family to be guardian, provided that he or she is entitled to inheritance in accordance with Islamic Sharia. In such a situation, the “wilaya” may go to the mother, her daughter, the daughter of the grandson, daughter of the daughter’s daughter, etc.

If there is no family member available, the “sultan” (the ruling sovereign), the “qadi” (religious judge), or whoever the “qadi” chooses, can be assigned to have guardianship.

Types of the “wilayah” (Guardianship)

In Islam, there are two types of “wilayah” (guardianship), one is called “wali mujbar” (or mandated guardianship) and the other is “wali ghayr mujbar” or not-mandated guardian. In the Hanafi jurisprudence, the only guardianship acceptable is the former. Thus, the job of mandated guardian is to protect the well being of their under-age children, to choose the suitable husband for marriage and to negotiate the “mahr” agreement. (See our discussion of the “mahr” at http://gabrielsawma.blogspot.com/2009/07/mahr-provision-in-islamic-marriage.html. It is within the context of guardianship that we may understand the stress it places on the special responsibility of the “wali” of the minor in the process of arranging her or his marriage even before the child reaches puberty.

A “wali” is entrusted with furthering the well-being of his or her child and protects the child’s interests including the arrangement of an early marriage. This role extends to the mentally ill, because like the rest of society, they too benefit from being in the married state.

The “wali’s responsibility is to look that the rule of “kafa’a” (suitability) of the would-be spouse in terms of lineage, legal status, social class, and moral standards are met. A highly educated girl needs to be married to a person who is at her level or better. A girl from rich family should marry a man who is as wealthy as her family is.

Under the rule of the Hanafi School, the father and grandfather may give the minor for marriage, such arrangement is considered legal. If the partner chosen by the father or grandfather turned to be “faseq” (unjust, lack of morality) or “ghayr kafu’” (unsuitable), the marriage will still be considered legal; the minor cannot request separation when he or she reaches puberty. However, should the father or grandfather enters into a marriage contract on behalf of a second minor; the rule is that the second marriage may be dissolved when that minor requests it at the age of puberty.

If the ‘wali mujbar’ (mandated guardian) is someone other than the father or grandfather, who gives the minor for marriage to someone who is known to be “faseq” (unjust, lack of morality) or “ghayr kafu’” (unsuitable), then the minor may request “faskh” (separation) upon reaching puberty; in this case, the “qadi” (religious judge) will order separation.

The Role of the Guardian in the Marriage Contract

According to the Hanafi School, the presence of a guardian in the marriage of the minor is essential and mandatory. His absence during the negotiations leading to marriage causes the marriage to be null. This rule applies as long as the spouse is minor; however, the guardian’s absence does not nullify the marriage if the spouse is no more minor, provided that the he or she is getting married to a person who is considered “kafu’” (suitable). If that person is found to be “ghayr kafu’” (unsuitable), the guardian may step in and requests the annulment of the marriage.

Gabriel Sawma is a Professor of Middle East Constitutional Law, Islamic Shari’a, Arabic and Aramaic. Expert Consultant on Islamic divorce, inheritance, child custody, banking, and finance. A lawyer with Middle East background; admitted to the Lebanese Bar Association of Beirut; Associate Member of the New York State Bar and the American Bar Associations. Editor of International Law website at http://www.gabrielsawma.blogspot.com. Author of “The Aramaic Language of the Qur’an, http://www.syriacaramaicquran.com. Email: gabrielsawma@yahoo.com; Email: gabygms@gmail.com.

Islamic Marriage Contract in the Hanafi Jurisprudence

2009-07-31T16:14:00.000-07:00

The Hanafi School of Jurisprudence is one of the four Schools in Sunni Islam. It was founded by Nu’man abu Hanifa (d. 767) in Kufa in modern Iraq. Abu Hanifa (father of Hanifa) is considered one of the “tabieen” (followers) of the companions of the Prophet Muhammad. He had the good fortune to have lived during a time when some of the companions of the Prophet were still alive
The Hanfi School became prominent under the Abbasid Dynaty and later under the Ottoman Empire, during which the Hanafi “madhhab” (school of jurisprudence) became the only authoritative code of law in the public life and official administration of justice in all the vast territories of the Ottoman Empire.
Today, the Hanafi School of thought has followers among Muslim population in Turkey, Albania, the Balkans, Central Asia, Afghanistan, Pakistan, China, India, Iraq, Egypt and Lebanon.

Marriage Contract in the Hanafi Jurisprudence
According to this School, the “nikah” (marriage) is a contract by which the husband gets “the intended sexual relation” from the woman. This School believes that, the husband enjoys the “bid’” (body of the woman) and all of the “badan” (organs) for the purpose of “taladhudh” (enjoyment). The right to “sexual enjoyment” is given to the man only. This “enjoyment” does not extend to the woman. According to this School, the man may force his wife to exercise his “haqq al-isstimta’a” (the right to enjoy sex), while the woman may do so “one time only.” (See Al-Jazeery, Kitab al-Fiqh, vol.4, p. 2. Dar al-Irshad lil-tibaa’a wal-nashr, Egypt ).
The marriage contract can be in writing or orally, and could also be done by correspondence.

Conditions of the Marriage Contract
A marriage contract is valid, according to the Hanafi School, if the following conditions are met: (1) “Ijab” (propose to marry) and “qubul” (accept to marry) by both parties or their “wali” (guardians). Both “ijab” and “qubul” must be expressed clearly; the term “nikah” or “zawaj” (i.e marriage) must be pronounced during the negotiations of the marriage agreement. (2) “Ijab” and “qubul” must occur in one meeting. If for example the father of the girl offers her for marriage “ijab” by saying: “I give you my daughter for marriage”, the “qubul” (acceptance of the groom or his guardian) must be pronounced in the same session. In other words, if the groom, or his guardian, responds at a later time, his response does not meet the requirements of the Hanafi; thus the marriage does not occur. (3) Bothe “ijab” and “qubul” must be in total agreement on the specifics; if, for example the father of the bride offers her for marriage demanding $200 for “mahr”, the groom agrees to the marriage but does not agree to the amount of “mahr”, then the terms of the contract is not agreed upon, and there is no marriage. (4) Both “ihab” and “qubul” must be heard clearly by the parties involved in the discussion. (5) There must be no time limitation for the period of the marriage. A marriage done for a specific period of time is called “mut’ah” (marriage for pleasure only) and is considered illegal in the Hanafi School.

Gabriel Sawma is Professor of Middle East Constitutional Law, Islamic Shari’a, Arabic and Aramaic. A lawyer with Middle East background; admitted to the Lebanese Bar Association of Beirut; Associate Member of the New York State Bar and the American Bar Associations. Expert Consultant on Islamic divorce in US courts, Islamic banking and finance. Editor of International Law website at http://www.gabrielsawma.blogspot.com. Author of the Aramaic Language of the Qur’an http://www.syriacaramaicquran.com. Email gabrielsawma@yahoo.com; Email gabygms@gmail.com.

The Jihaz in Islamic marriages

2009-07-28T12:34:00.000-07:00

Jihaz (dowry) or trousseau is the amount of clothes, household linen, furniture and other belongings contributed by the bride and/or her family to the marriage. It has to be distinguished from the mahr, which is an agreement between the wali (guardian) of the bride and her future husband by which the groom pays certain sum of money or its equivalent to the bride at the signing of the marriage agreement. The mahr is an obligation on the groom, stipulated by the Quran, to be given to the future wife, while the jihaz is not an obligation on the part of the bride or her family. (For more information on the mahr agreement, see our article on http://www.gabrielsawma.blogspot.com.

The Jihaz is not nafaqa (support) either, because nafaqa is the material support given by the husband to his wife as soon as the marriage is consummated. The nafaqa covers clothing, food and shelter for the wife. (For more on the nafaqa, see our article on http://www.gabrielsawma.blogspot.com

In the Middle East, as elsewhere, the brides are often given house furnishings and clothing by their parents or family members when embarking on marriage. There is no obligation in the Islamic Shari’a to fulfill the jihaz, however, in most cases, brides bring such jihaz to their houses once they are married.

Consequently, the groom cannot force his future wife to bring the jihaz as part of the household, and if her family is asked to contribute such jihaz, they may decline the demand.

Once the jihaz is given to the bride, it becomes her own property. Her family cannot claim it as part of their estate unless the jihaz was given as a loan agreement. Under such circumstances, they may demand the return of the jihaz.

The groom cannot have claim on the jihaz, unless it was purchased by the bride or her family, with monies given by the groom as part of the mahr agreement, where the jihaz becomes a mahr and therefore belongs to the groom.

The bride’s father may have a legal agreement with his daughter stating that certain pieces of the jihaz she took with her upon marriage were in fact a loan, and therefore revert to her family upon death. Otherwise the jihaz is considered a private property of the bride and becomes part of her estate.

The jihaz contributed by the bride and /or her family endorses the idea that she enters into marriage as an empowered individual. The marriage arrangements in the Middle East involving jihaz, predate the rise of Islam.

There is no provision in Islamic Shari’a that forbids the exercise of women’s right to contribute jihaz to their marriages. In fact, under Islamic law, married women have legal rights to share in family estate. They may own properties, or be named as beneficiaries of religious waqf (endowment) assets.

Gabriel Sawma is a lawyer with Middle East background, professor of Middle East Constitutional Law, Islamic Shari’a, Arabic and Aramaic. Expert Consultant in matters related to recognition and enforcement of Islamic divorce, child custody, banking and finance in US courts. Admitted to the Lebanese Bar Association; Associate Member of the New York State Bar and the American Bar Associations. Editor of http://www.gabrielsawma.blogspot.com
Author of the Aramaic Language of the Qur’an http://www.syriacaramaicquran.com
Author of an upcoming book on Islamic Divorce in US Courts.
Email: gabrielsawma@yahoo.com
Email: gabygms@gmail.com

Republishing and reprinting this article is hereby granted by the author.

The Nafaqa in Islamic Marriage

2009-07-25T05:45:00.000-07:00

Under Islamic Shari’a, a man is obligated to support his wife with food, clothing, and shelter. His obligation starts as soon as the marriage is consummated. This article discusses the issue of nafaqa in the Islamic marriage.

In Islamic Shari’a, nafaqa is defined as an obligation of material support for the wife and children. This is a gendered entity in Islamic marriage, as long as the marriage has been consummated. When the marriage is consummated, the husband becomes responsible for providing his wife and children born of the marriage with food, clothing, and shelter regardless of the wife’s own resources. This obligation is stated in the Qur’an; it reads the following: “Men are protectors and maintainers of women because God has given them the one more than the other, and because they support them from their means [their money]” (Qur’an 4: 34). Failure of the husband to provide the nafaqa may result in a jail sentence.

If the husband leaves his house to undisclosed location, the qadi (religious judge) is authorized to locate the husband’s assets to recover the unpaid nafaqa. If the husband is beneficiary of any revenues, or has any outstanding debts owed to him, the qadi could assign the proceeds equivalent to the amount of nafaqa to the wife.

The nafaqa is determined at a level appropriate to the wife’s social standing and background; the qadi may determine the amount of nafaqa in accordance with the style to which the wife is accustomed. Thus, a poor woman may get a bread and cheese for her lunch; a middle class wife would expect to receive grain and animal fat, while a rich wife may get wheaten bread and meat.

As a general rule, the husband has an obligation to support nafaqa to his wife or wives until such time as the marriage is terminated by divorce or death.

In the event of divorce, the former husband must continue to support his wife for the following three months of her ‘iddah, a waiting period after divorce, during which a woman may not marry another man. At the end of her ‘iddah, the wife is legally free to remarry. If the wife should die during that period, the husband is responsible for the burial costs. The ‘iddah is extended, for a pregnant woman, until after the birth of her child.

There should be a clear distinction between mahr and nafaqa; the legal discourse in Islamic marriage contracts is that the husband pays the muqaddam (immediate) mahr at the time of signing the contract. (For more on the mahr agreement, see The Mahr Provision in Islamic Marriage Contracts at http://www.gabrielsawma.blogspot.com. The nafaqa is the amount of money spent by the husband to support his wife on food, clothing and shelter; it is triggered when the marriage is consummated.

A woman, who is married according to the Islamic Shari’a, can refuse to consummate the marriage with her husband if he failed to pay the mahr. But once the mahr issue is settled, she has to be available to her husband. If she continues to refuse him, the husband will be absolved of any responsibility for providing the nafaqa.

A woman is entitled to receive the nafaqa even if she gets mentally or physically ill. The nafaqa is obligatory on the husband in the case he becomes ill. No nafaqa is due if the husband repudiates his wife because she has been guilty of apostasy. Changing once religion from Islam to any other religion is considered a blasphemy and subject to strict penalty ultimating to death.

The husband may stop providing for nafaqa if the wife commits nushuz, a term used to designate the rebellion of a woman against her husband, by disobeying him and causing him anger.

If the husband is traveling and could not be reached, the wife who has been granted nafaqa by the qadi (religious judge), is authorized to borrow money equivalent to the amount assigned, and the absent husband is responsible for paying off the debt once he became available.

If the husband should die, the nafaqa support will be terminated, except for a pregnant woman who could still claim it, through to delivery of her child, from her husband’s estate. She must request the nafaqa during the period of the marriage or the ‘iddah.

Muslim couples may name an amount of the nafaqa support as part of the marriage contract, although such a clause is not required by the Islamic Shari’a; but once made, it can be enforced by the religious court.

Gabriel Sawma is a Professor of Middle East Constitutional Law, Islamic Shari’a, Arabic and Aramaic. He is an expert consultant on International Law, mainly Islamic divorce, inheritance, child custody, banking and finance. Admitted to the Lebanese Bar Association ; Associate Member of the New York State Bar Association and the American Bar Association. Editor of International Law Website: http://www.gabrielsawma.blogspot.com and author of the Aramaic language of the Qur’an: http://www.syriacaramaicquran.com. Email: gabrielsawma@yahoo.com
Email: gabygms@gmail.com

The Mahr Provision in Islamic Marriage Contracts

2009-07-21T21:13:00.000-07:00

In recent years, many Islamic divorce cases were litigated in the United States family courts. The issue of mahr in the Islamic marriage contracts became subject of debate among lawyers and scholars. This article sheds lights on the Islamic mahr in USA.

Mahr is the amount of money, or its equivalent, paid by the husband to his future wife. Contrary to the popular notion that mahr is dowry, it is not. A dowry is what the wife contributes to her marriage while mahr is an obligation on the husband to pay his future wife. Others call the mahr a ‘gift’ given by the husband; it is not a ‘gift’ either, because it is an obligation mandated by the Qur’an. The Qur’an calls it sadaq; it reads: “Wa aatoo ann-nissaa’ saduqaatihinna nihlatan” (and give the women their mahr with a good heart.) Qur’an 4: 4
The mahr is an obligation required by Islamic law from the husband to be paid to his future wife. Thus, it must be stipulated in the Islamic marriage contract. If no stipulation is recorded in the contract, the qadi (or religious judge) will assign the amount of mahr. The amount of mahr becomes a property of the wife alone.
Muslim schools of jurisprudence in the Sunni traditions, differ on the definition of the mahr. The Hanafi School defines mahr as “the added money given by the husband to his [future] wife for iza’a ihtibassiha, keep her in his house (see al-Sarkassi, the Mabssut, vol. 5, pp 62-63, Arabic Version). Another author of the Hanafi School defines the mahr as “the money, which is obligatory on the husband in ikd al-nikah (the marriage contract) for manafi’ al-bid’ (sexual pleasure). (See ibn al-Hamam, Sharih Fath al-Qadeer, vol. 3, p. 304, Arabic version).
The Hanbali School of jurisprudence defines mahr as “the money paid by the husband for the purpose of nikah (marriage). (See ibn Kadamah, Al-Mughni, vol. 6, p. 679, Arabic version).
The Malike and Shafi’i Schools defines the mahr as “the money due to the future wife in return for [the husband’s] haqq al-isstimta’ (sexual pleasure) in the marriage contract”. (See al-Hattab Muhammad bin Abdel Rahman al-Mughrabi, Mawahib al-Jalil li-Sharh Mukhtassar Khalil, vol. 5, p. 172-Maliki Jurisprudence). For Shafi’i School see al-Nawawi, Kitab al-Majmu’, vol. 18 p. 605). All these references are cited by Sheikh Mahmud Muhammad al-Sheikh, Al-Mahr fi Al-Islam bayna al-madi wal-hadir, published by al-Maktaba al-Assriyya liltibaa’a wal nashr, Beirut, Lebanon, 2003, Arabic version.
The Maliki and Shafi’i Schools of jurisprudence regard the mahr as “the money paid for the future wife in return for sexual pleasure is an integral part of the Islamic marriage contract and its source is prescribed in the Qur’an. Sura al-Nissaa reads the following:
“Fa ma isstamta’tum bihi minhunn fa aatoohunna ujoorahunna” (So for that pleasure which you have enjoyed from them, give them their prescribed compensation). Qur’an 4: 25
Numerous Hadith (sayings attributed to the Prophet of Islam) provisions refer to the obligatory nature of the mahr in Islamic marriage contracts. (See for example Ans bin Malik bin Damdam; Al-Bukhari, Sa’ad bin al-Rabi’ bin Khazraj. They are all cited by Al-Sheikh Mahmud Muhammad al-Sheik, Al-mahr.)
Traditionally, Islamic marriage contracts lists two types of mahr; one is called muqaddam (upfront, or immediate at the signing of the contract), or mu’akhar (deferred to be paid in the event of divorce or death of the husband.)

The Amount of Mahr
Neither the Qur’an, nor the Hadith stipulates the maximum amount of mahr to be paid by the husband. As to the lower amount of mahr, Islamic scholars differed on this. The Hanafi School regarded the lower amount to be not less than ten Dirahms (around ten US Dollars). The Maliki School considers the lower mahr to be not less than three Dirhams (or three US Dollars.)
The Hanbali and Shafi’i Schools do not put a limit to the lower amount of mahr; both schools agree that the lower amount could be “a ring made out of iron” or “pair of shoes”, or a few ounces of “wheat, or dates”, or “teaching the future wife verses from the Qur’an”. In all of these, the future wife has to express her acceptance to whatever the amount is.
Modern Islamic marriage contracts are pre-printed forms, filled by the ‘imam/qadi’ (religious leader or religious judge). The form has empty space to fill the name and address of the husband and the name and address of the bride. The contract must include the names and addresses of two adult male witnesses. And the place and address where the marriage contract is signed
Both parties to the marriage contract must express their consent to the marriage, verbally and in writing. This is done through a formal proposal of ijab (an offer to marry) and qubul (an acceptance to marry), in the presence of a wali, a male guardian who looks out for the best interest of the bride. It must include the amount of muqaddam/mu’ajjal mahr, and the amount of the mu’akhar (deferred).
After the contract is signed, the couple is recognized as legally married and enjoy the rights and obligations stipulated by the Islamic Shari’a (law). The marriage contract may be solemnized in a mosque and usually signed in triplicate: one copy should be given to the bride, one to the bridegroom, and the third must remain deposited with the Registrar, imam/qadi (religious leader or religious judge).

The Absence of Mahr Provision in the Marriage Contract
If the marriage does not include a provision for the mahr, the contract is considered to be legal. The three Schools of jurisprudence: Hanafi, Shafi’i and Hanbali recognize the fact that the mahr provision is not a main factor, nor a condition for the marriage. These three Schools believe that the mahr is an obligation on the husband regardless of whether it is written in the marriage contract or not (see Mahmud Muhammad al-Sheikh, al-Mahr, published by al-Maktabah al-Assriyya, Beirut, 2003, Arabic version). Accordingly, if the marriage contract is signed by the parties without a provision of the mahr, or if they assign a mahr, which is considered to be illegal under Islamic Shari’a, or if the parties agree not to include a mahr provision, in all these cases the conditions are null, the contract is legal and the husband has to pay a mahr equivalent to a mahr given to another women of the same status as that of his wife.
The Maliki School rejected this interpretation and considered the mahr provision in the contract, necessary. However, this School regards such a marriage to be legal if it was consummated. If the marriage was not consummated, then the marriage is mafsookh (a reason for separation); if he divorces his wife without any agreement on the mahr issue, then he has to pay her mut’ah (money paid to her in return for the sexual pleasure he had with her). But if he dies before any agreement reached between the couple, then the wife is entitled to inherit her share from his estate.
Finally, the mahr must be legal. Thus, alcoholic beverages and the meat of the swine or pig cannot be given to the future wife as mahr because, under Islamic law, it is unlawful to transact these items. If such illegal items were listed in the marriage contract, the imam/qadi may substitute those by legal items.

Should there be any questions regarding this topic or any topic that deals with Islamic Shari'a in the United States or in Europe, please email the author at gabrielsawma@yahoo.com or gabygms@gmail.com

Gabriel Sawma is a Professor of Middle East Constitutional Law, Islamic Shari’a, Arabic and Aramaic. He is an expert consultant on International Law, mainly Islamic divorce, inheritance, child custody, banking and finance. Admitted to the Lebanese Bar Association ; Associate Member of the New York State Bar Association and the American Bar Association. Editor of International Law Website: http://www.gabrielsawma.blogspot.com and author of the Aramaic language of the Qur’an: http://www.syriacaramaicquran.com. Email: gabrielsawma@yahoo.com
Email: gabygms@gmail.com

Indian Divorce in U.S. Courts

2009-06-12T17:57:00.000-07:00

Many Indian nationals had their marriage in India and domicile in the United States. They travel back to India for the purpose of obtaining divorce certificates. The issue of jurisdiction becomes important factor for the recognition of their foreign divorce judgments in the United States. This article analyzes this issue.

In most circumstances, a judgment of divorce of a foreign national court has no independent force outside the forum’s territory. Thus courts will enforce their own judgments within their own national boundary.

As a general rule, a judgment of a court of one nation may be recognized and enforced in another nation if the courts of that nation are willing to accept the decree of the nation where the judgment was issued.

Recognition and enforcement of foreign judgments occur when a U.S. court relies upon foreign divorce ruling, on the ground that it has been previously litigated abroad. Thus recognition of foreign divorce judgments is akin to the domestic U.S. doctrines of res judicat (or claim preclusion, prevents parties of a claim from re-litigating the same claim), and collateral estoppel (or preclusion which extends the preclusive effort of a judgment to re-litigation of issues that were decided in a prior action.) The enforcement of foreign divorce judgment is typically sought by a plaintiff who has obtained a judgment in a foreign country.

In the United States, the judgments of one state’s court are routinely enforced in another state. Article IV, Sec. 1 of the U.S. Constitution requires that “Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other state.” Congress has implemented the full faith and credit clause by statutory enactment providing that judicial proceedings “shall have the same full faith and credit in every court within the United States…as they have by law or usage in the courts of such State…from which they are taken.” (28 U.S.C. Sec. 1738. 1982).

The Doctrine of Comity

Presently, in the United States, there is no federal standard governing the enforcement of divorce judgments rendered by foreign courts. Unlike state judgments, foreign judgments are not covered by the full faith and credit clause of the U.S. Constitution and other statutes. Nor are there any federal statutes to enforce foreign divorce judgments in U.S. courts. The United States is not party to any international agreement regarding the mutual recognition of divorce judgments.

With the absence of a treaty or statute upon this subject, the duty rests upon the judicial tribunals to determine the rights of the parties in divorce suits brought before them. In doing this, the courts obtain such aid for their judicial decision, from the works of jurists, commentators and academic scholars, and from the acts of civilized nations. Thus U.S. courts may give recognition to the judgments of a foreign nation as a matter of “comity.”

The “doctrine of comity,” in the legal sense, is not an absolute obligation; it is a courtesy, where the court may recognize a foreign court order, but is not compelled to do so. This extension or denial of comity is discretionary to the U.S. court

Indian nationals domiciled in the United States, initiate divorce in India. Many of them have dual US-Indian nationalities. They travel to India for the sole purpose of obtaining divorce judgments from Indian courts. Then they travel back to the United States and serve the other spouses with divorce papers. Do the U.S. courts extend comity and recognize the enforceability of those divorce judgments? Or do the U.S. courts assert their own jurisdiction on the divorce cases? The key concepts in this “conflict of law” in the United States are two: subject matter jurisdiction (or competence), and personal jurisdiction.

For a foreign court to have authority to adjudicate a dispute involving divorce, it must have jurisdiction over divorce issues. A divorce can be granted only in a court designated to hear matrimonial cases. It is well settled that U.S. courts will not enforce foreign judgments unless foreign courts possessed “competence” or subject matter jurisdiction under foreign law. Consequently, lack of subject matter jurisdiction is a basis for non-recognition.

Personal jurisdiction, known also as “personam” is the power of a court “to hear and determine a lawsuit involving a defendant by virtue of the defendant having some contact with the place where the court is located.” (See http://legal-dictionary.thefreedictionay.com/Personal-Jurisdiction). Personal jurisdiction is a basic pre-requisite for the enforcement of a foreign judgment. The foreign court issuing the judgment must possess personal jurisdiction and authority over persons within its territory. This includes: domiciliary, citizenship, place of marriage, etc.

U.S. courts generally, are able to decide divorce cases based on at least one of the spouses being domiciled or maintaining a habitual residence within the geographic jurisdiction of the court. Domicile is defined as physical presence and an intention to live permanently in a location. Such intentions are determined by where a person is registered to vote, filing state tax return, state issued driving license, which school the children go to, does he or she join a gym in the area of residence and where the home is located, etc.

Divorce cases involving multinational jurisdictions are complex. Foreign divorces may involve immigration matters, child custody, division of marital assets and support orders, which have their own specialized enforcement issues. In most cases attorneys and litigants consult with experts in foreign laws before determination.

Gabriel Sawma is Professor of Middle Constitutional Law, Islamic Shari’a, and Arabic. He is considered an authority on Private International Law involving foreign divorce issues, Islamic banking and finance. Admitted to the Lebanese Bar Association in 1970; Associate Member of the New York State Bar and American Bar Associations. Editor of International Law Website: http://www.gabrielsawma.blogspot.com

Email: gabrielsawma@yahoo.com

Islamic Divorce in U.S. Courts

2009-04-21T12:54:00.000-07:00

Islamic Divorce Obtained in a Foreign Country

U.S. Courts do not apply Islamic Shari'a law because it violates the Establishment Clause set in the United States Constitution; American Courts do apply foreign law in certain cases involving international principle known as "conflict of Laws," or "Private International Law." This is referred to in U.S. courts as the "doctrine of comity".

In the area of Private International Law, Comity is a courtesy, amity, and reciprocity by U.S. courts towards court decision issued in other nations. Such a consideration by U.S. courts does not entail an obligation to agree with the rulings of foreign judgments. There is therefore a distinction between the doctrine of comity and law.

Public International Law can become part of the national law when the country has its signature on that law, Private international Law, however, does not have the same level of recognition by U.S. Courts. The issue of comity is raised in Islamic divorce cases when a person who resides legally in the United States travels to a foreign country and obtain a certificate of divorce from a religious court.

The intent is to obtain an instant divorce by pronouncing triple talaq (divorcing his wife three times in a few minutes.) Such an action leaves the wife with nothing more than a nominal deferred mahr, and takes advantage of the child custody, which discriminates against the women and to label the wife as bad Muslim.

The man then returns to the United States and serves his wife with divorce papers demanding the implementation of the divorce according to the Islamic Shari'a, claiming that the "doctrine of comity" applies to his case.

American courts do not apply Islamic laws because it violates the Establishment Clause of the United States Constitution; they apply foreign law at their discretion. To determine whether to apply a foreign law, U.S. courts turn to Private International Law, including the “doctrine of comity.” Thus the application of the principle of comity is not mandatory, but is rather a matter of custom. They may deny the application of comity if the judges deem the foreign laws is “repugnant” to U.S. principle of law.

Generally, a judgment of divorce for example issued in a foreign country is recognized in the U.S. on the basis of comity, provided both parties to the divorce received adequate notice, i.e. service of process and, generally, provided one of the parties has a domicile in the foreign nation at the time of divorce, and the foreign court has given opportunity to both parties to present their case, and the trial was conducted upon regular proceedings after due citation or voluntary appearance of the litigants, and under a system of jurisprudence likely to secure an impartial administration of justice between the citizens of its own country, and those of other countries, an no prejudice towards either party and should not violate a strong U.S. principle of law, and the parties were present in court.

An Islamic triple talaq differs substantially with respect to property division. Under Islamic Shari’a, wives may be entitled to a deferred mahr, which is, in most cases, much less than what U.S. courts order; above all, U.S. courts will not accept an Islamic divorce certificate obtained in a foreign country if the cause of action on which the divorce is based is “repugnant” to the public policy of the State in which the case is litigated.

Gabriel Sawma is Professor of Middle East Constitutional Law and Islamic Shari’a. He is an expert on Islamic marriage contracts and Islamic divorce. Editor of an International Law website: http://www.gabrielsawma.blogspot.com. Author of “The Qur’an: Misinterpreted, Mistranslated and Misread. The Aramaic Language of the Qur’an.” http://www.syriacaramaicquran.com. Author of an upcoming book on Islamic Divorce in US Courts. Email: gabrielsawma@yahoo.com; gabygms@gmail.com; tel. (609) 915-2237.

Application of Islamic Shari’a in US Courts

2008-06-22T20:17:00.000-07:00

In 2004 a crash of Blackwater Flight 61 occurred in the rugged mountains of central Afghanistan, killing three soldiers and three-man crew. The widows of the soldiers sued Presidential Airways, Blackwater’s sister company, which was under contract with the U.S. military to fly cargo and personnel around Afghanistan.

Lawyers for the company has asked a federal court to decide the case using provisions from the Islamic Shari’a, not the U.S. laws. They argue that the Shari’a “does not hold a company responsible for the actions of employees performed within the course of their work.” http://www.newsobserver.com/917/story/1113022.html

The Vicarious Liability

In the American legal system the term ‘vicarious liability’ is used to indicate the responsibility of the employer for the acts of his employee provided that the employee is doing his job within the scope of his employment. Thus if a driver of a company car hits someone on the road, during the course of his employment, he and the company may be liable for the damages. To establish the employee's conduct was within the scope of employment, certain conditions must be met, these are: (1) the conduct must have occurred substantially within the time and space limits authorized by the employment; (2) the employee must have been motivated, at least partially, by a purpose to serve the employer; and (3) the act must have been of a kind that the employee was hired to perform. In this example, if the driver is driving the same car to see his girlfriend without authorization of his employer and an accident occurs during this trip, he alone, not the employer may be responsible for the accident.

In the Islamic Shari’a (law), the closest example that may shed light on this subject is the mutual help in relation to the custom of blood money (diyya) under the Arab tribal custom. This is a compensation paid to the heirs of a victim of murder.

According to Islamic Shari’a, the penalty applied for causing death to someone is based on the principle of an eye for an eye and a nose for a nose. However, the hadith, a second source of shari’a, allows the payment of diyya in terms of cash to the heirs of the victim, regardless as to whether the crime was pre-meditated or not.

In the majority of cases, when the person cannot afford to pay the diyya, his family and clan come up with the money accepted by the family of the victim. This tradition, which has been in existence before the rise of Islam, has been endorsed by the four Islamic schools of thought in the Sunni sect of Islam: Shafi’i, Maliki, Hanafi and Hanbali.

The principle of compensation and group responsibility was accepted by the Prophet of Islam. The system of collective responsibility was practiced in Medina in what is known as "The Constitution of The Medina". It occurred after the Hijra (the migration of the Prophet from Mecca to Medina in 622) and was recorded by the biographer of the Prohet, Ibn Ishaq, who authored the first book on the life of Muhammad; his book is titled: "Al-Sira al-Nabawiyya".

The amount of diyya in the Sunni traditions depends on the gender and religion of the victim. According to the Shafi’i and Hanafi schools, the family of a murdered Muslim woman gets half the diyya given to the family of a murdered Muslim man. If the murdered person is Jew or Christian, the family gets 1/3 of the amount given to the family of a murdered Muslim man according to the Shafi’i school. The Maliki states that the families of a murdered woman, or murdered Jew or murdered Christian, get half of the diyya paid to the family of a murdered Muslim man. The Hanbali differentiate between pre-meditated and un-premeditated murder. If the killing is pre-meditated committed by a Muslim against Christian or Jew, the families of the victims get a diyya equivalent to that given to the family of a Muslim victim; but if the killing of Christian or Jew by a Muslim is un-premeditated, then the families get half of the diyya given to a Muslim family.

In Islamic countries, the vicarious liability applies to the insurance company to pay for the damages incurred to the insured. Insurance is regarded as a system of mutual help in relation to the custom of blood money that is practiced in the Muslim world.

Jurisdiction and Application of Law

As far as the jurisdiction of US courts is concerned, the following principles have to be taken into consideration: (1) American courts do not recognize the Islamic law; judging a case in an American court on a religious law is unconstitutional. The courts do recognize however the law that is tied to specific nation, such as the laws of Saudi Arabia and Iran; American judges make every effort to understand how the principles of Islamic Shari’a relate to the law of the nations involved in the case. (2) To have a better understanding of the Islamic Shari’a, the judges usually hold evidentiary hearing eliciting expert testimony from both sides.

In this case, the legal team for the defendant requests the Federal Court in Florida to apply the Islamic law of Afghanistan. They argue the lawsuit “is governed by the law of Afghanistan…”

Lawyers familiar with Middle East legal systems know that Islamic Shari’a is applied in matters related to marriage, divorce, inheritance and custody of children. Even countries which adhere strictly to Islamic law, have modernized their civil codes.

Afghanistan adheres strictly to the Hanafi madhab (school of thought in Sunni Islam), its 1976 Civil Law does not require the application of Islamic shari’a in a matter like this; to the contrary, the Civil Law of Afghanistan asserts that the obligations stemming from contracts “must adhere to the laws of the state where the contract was signed”. Article 27 reads the following:

"in regard to obligations arising from contracts, the law of the state where parties to the contract reside, shall be applicable, in case they do not reside in the same country, the law of the state where the contract is completed, shall be applicable provided the parties to the contract have not agreed on application of specific law, or evidence do not point to the fact that the parties to the contract did not think of application of another law.”

As to the conditions related to the "form of contracts", article 28 of the Civil Law states the following:

"Provisions of the law of the state where the contract is completed shall be applicable.”

Subsequently, if the contract was signed in the United States, then it is obvious that that jurisdiction is here in the US and US laws are applicable.

Gabriel Sawma, a lawyer dealing with International Law, mainly the European Union Law, the Middle East Law and Islamic Shari'a law. Professor of Middle East Constitutional Law, Islamic Shari'a, Arabic and Aramaic languages. Expert witness on Islamic marriage contracts, including the mahr; expert witness on U.S.-Middle East commercial contracts. Member of the Beirut Bar Association in Lebanon; The New York State Bar Association; Associate member of the American Bar Association. Author of an upcoming book on "Islamic marriage Contracts in U.S. Courts and the Mahr." Author of an upcoming book on conflicts in U.S. Middle East Commercial Contracts. Editor of International Law website: http://www.gabrielsawma.blogspot.com, Email: gabrielsawma@yahoo.com

http://gabrielsawma.blogspot.com

The Shebaa Farms Under International Law

2006-08-04T16:15:00.000-07:00

By

Gabriel Sawma Esq.

Background

Following World War I and the fall of the Ottoman Empire, the territories of Lebanon and Syria, which were considered one single political unit prior to the War, were mandated by the League of Nations to France. The principle underlying the Mandate was expressed in Article 22 of the Covenant of the League of Nations.

The Mandate proceeded until November 26, 1941, when General Georges Catroux, de Gaule’s choice for governing the mandated territory, proclaimed in the name of his government and its ally the termination of the mandate and the establishment of “sovereignty and independence” of Lebanon and Syria. Lebanon became a constitutional republic in 1943.

The internationally recognized borders between Israel, Egypt, Jordan, Lebanon, and Syria are governed by the 1949 Armistice Agreements. Those agreements ended the 1948 Arab-Israeli War, and established the armistice lines between Israel and the West Bank, also known as the Green Line, until the 1967 Six-Day War between the Arab States of Jordan, Egypt and Syria on one side and Israel on the other side.

The Armistice Agreement between Israel and Lebanon was signed on March 23, 1949. It points the following

• The Armistice Line (“The Blue Line”) was drawn along the international border.
• The international border between Lebanon and Israel are considered to be a de jure international border (i.e. by law).
• Israel withdrew its forces from 13 villages in Lebanese territory, which were occupied during the war.

With the exception of the Lebanon-Israel Armistice Agreement, the other agreements were clear (at Arab insistence) that they were not creating a permanent or du jure borders.

The Israeli-Syrian Invasion of Lebanon

On March 15, 1978, Israel launched a major military incursion into South Lebanon, called the Litani River Operation, and struck at PLO bases and staging areas south of the Litani River, up to 10 kilometers deep inside the country. The operation prompted a formal statement of “United States Concern with the Territorial Integrity of Lebanon,” calling for Israeli withdrawal and discussing a United Nations role in Lebanon. On March 19, 1978, the United Nations Security Council adopted Resolution 425 calling for Israeli withdrawal and establishing an international peace-keeping force for South Lebanon, the United Nations Interim Force in Lebanon (UNIFIL), to enable establishing of a buffer zone in southern Lebanon free of PLO bases.

By June, 1978, Prime Minister Begin, under intense American pressure, withdrew Israeli forces, which were replaced by UNIFIL. The withdrawal of Israeli troops without having removed the PLO from its bases in southern Lebanon became a major embarrassment to the Begin government. The cross-border cycle of attack and retaliation continued, and the PLO expanded its bases, forces, and armaments in Lebanon. Finally, Israel responded with its 1982 invasion and occupation of southern Lebanon. The UNIFIL force is still deployed in 2006.

UNIFIL was unable to prevent terrorists from infiltrating the region. Cross-border conflict between Israel and various forces in southern Lebanon continued to intensify. Civilians on both sides, and UNIFIL peacekeepers, were killed as the fighting continued to escalate, and Palestinians were shelling the northern Israel. In June 3, 1982, the Defense Minister Ariel Sharon ordered the invasion of Lebanon with a massive force in an operation called Peace for the Galilee. Israeli forces drove all the way to Beirut. The PLO’s leadership was forced to move to Tunis. This military operation, although planned for limited duration, became bogged down and continued far longer than expected. The army lost 650 soldiers. For three years the Israel Defense Force (IDF) remained deep in Lebanon, until it withdrew, in 1985, to the international border. Some territory in south Lebanon was retained as a security zone. The area was monitored jointly by Israeli Army (IDF) and its Southern Lebanese Army (SLA) ally.

The Lebanese Civil War, which started in April, 1975, provided the pretext for Syrian Military intervention in Lebanon. Alleging the fear of a Christian-Muslim partition of the country and/or a PLO takeover, Hafez Assad of Syria sent, on June 1, 1976, 12,000 regular Syrian troops to Lebanon. By September of that year the number reached approximately 25,000 men. The Syrian force was operating under what came to be known as the Arab Deterrent Force authorized by the Riyadh Summit held in October 1976. Syrian troops acted to disarm some Lebanese militias at the same time that the national army of Lebanon disintegrated. By 1977, the number of Syrian troops exceeded 30,000, with over 200 tanks. On October 13, 1990, Syrian forces captured the presidential palace at Ba’abda, southeast of Beirut, and defeated the Lebanese Army units, which were under the command of General Michel Aoun, who declared ‘a war of liberation” against Syria. Syrian military occupation of Lebanon incorporated the entire country with the exception of southern Lebanon, which was under the control of the Israeli Army and the Southern Lebanese Army.

On May 23, 2000, the Israeli military carried out a unilateral withdrawal from the south and the Bekaa Valley, ending 22 years of occupation causing the collapse of the 6,000 SLA members. With the withdrawal of Israeli forces, many Lebanese began calling for a review of the continued Syrian presence in their country.

On June 16, 2000, the United Nations Security Council adopted the report of the Secretary General verifying Israel’s compliance with UNSCR 425 and the withdrawal of Israeli troops to their side of the demarcated Lebanese-Israeli line of separation (The “Blue Line”) mapped out by UN cartographers. In August, 2000, with the permission of Syria, the Lebanese Government ordered the deployment of 500 police and 500 soldiers to areas of south Lebanon evacuated by the Israelis. This force was not allowed to disarm Hizbullah guerrillas or to take up positions along the blue lines. Hizbullah maintained observation posts and conducted patrols along the Blue Line.

In the summer of 2004, Syria pressured the country’s cabinet into endorsing a constitutional change designed to let President Emile Lahoud extend his expiring six-year term for three more years. Prime Minister Rafik Hariri had for years been a fierce foe of Mr. Lahoud and had strongly opposed amending the Constitution. But suddenly he changed his mind after a night meeting with the Syrian chief of military intelligence.

On September 2, 2004, the UN Security Council adopted Resolution 1559, coauthored by France and the United States. The Resolution “calls upon all remaining foreign forces to withdraw from Lebanon” and “for the disbanding and disarmament of all Lebanese and non-Lebanese militias.” Syria made few moves to comply with the Resolution until the assassination of Rafik Hariri, the former Prime Minister of Lebanon, on February 14, 2005. International pressure and mass demonstrations that were labeled ‘the Cedar Revolution’ prompted President Bashar Assad of Syria to announce on March 5, 2005, his plan to “bring his forces home.” On April 26, 2005, after 29 years of occupation of Lebanon, the last Syrian troops left the country

The Shebaa Farms Issue

Shortly after the Israeli withdrawal from Lebanon, The UN Secretary General, Kofi Annan, dispatched his special Middle East envoy, Terje Roed-Larsen, and a team of experts to meet with Israeli and Lebanese officials and verify that both sides were in agreement on the conditions required by Resolution 425. The UN team reported that the Lebanese Government “informed the United Nations of its new position regarding the definition of its territory.” The claim included that Israeli forces seized a piece of Lebanese territory during the Six-Day War, called Shebaa Farms, located on the western slopes of Mount Hermon in the Golan Heights, and has been occupied by Israel since the 1967 Six-Day War with Syria, Egypt, and Jordan.

The Farms are presumed to be owned by the residents of the nearby Lebanese town of Shebaa. Before the Six-Day War, most Shebaa landowners and farmers lived in a Lebanese village of Shebaa. The Shebaa farms, a separate piece of territory, about 14 kilometers (8.7 mi) in length, and averages 2.5 kilometers (1.6 mi) in width, lie inside Syria. The farmers used to cross the land from Shebaa city in Lebanon to the Shebaa Farms in Syria. Its fertile, well-watered farmland formerly produced barley, fruits, and vegetable for 14 farms, but now desolate.

After Syria lost the land in 1967, the Lebanese farmers of the city of Shebaa were no longer able to commute and to farm the land at Shebaa Farms. Israel maintains that the Shebaa Farms was officially part of Syria when Israel occupied the region. Syria and Lebanon claim that the territory is in fact part of Lebanon, since Lebanon did not play a role in the Six-Day War, they claim, Israel must evacuate the territory in accordance with UN Security Council Resolutions.

It is worth to mention here, that the 1949 Armistice Demarcation Treaty between Lebanon and Israel followed the pattern of demarcation that was instituted by Great Britain and France in 1923. Nevertheless, there was no official border between the two countries. “On maps, the French clearly marked Shebaa Farms as Syrian territory, while marking the village of Shebaa, whose residents owned the farms, as the territory of Lebanon.” In other words, the town of Shebaa is considered to be a Lebanese territory, while the Shebaa Farms is Syrian land.

During the 1950s and early 60s A joint Lebanese Syrian commission was formed to determine the border between the two nations. In 1964 the commission determined that the Farms belong officially to Lebanon. However, maps printed after 1964 did not incorporate the determination of the commission, the maps printer after that period rather shows that the Shebaa Farms are still Syrian territory. And in 1960, Syrian authority ordered the inhabitants of the Shebaa Farms to replace their Lebanese identification cards with Syrian ones.

The Lebanese government showed little interest in the views of the inhabitants. While the commission was conduction its work to determine the border identity, the Syrian Government maintained control over the Farms. In 1955, the Syrian military built an outpost on one of the farms, and military bases in the area.

Those military posts in and around the Farms confirmed the identity of the Shebaa Farms as Syrians. During the Israeli invasion of Syria in 1967, the territory was captured by the Israeli forces and remained occupied until this time. No Lebanese or Syrian newspapers or any other discussion about the identity of the Shabaa Farms as being Lebanese territory, nor was there any hint in the UN Security Council at the time by the Lebanese representative to this effect. At no time, prior to the Israel’s withdrawal from Lebanon in 2000, did the Lebanese Government claim the Shebaa Farms to be Lebanese.

In 1974, the United Nations Disengagement Observer Force (UNDOF) was established at Camp Faouar in Syria. Its mandate includes: (1) to supervise the cease-fire between Israel and Syria; (2) to supervise the disengagement of Israeli and Syrian forces; and (3) to supervise the Areas of Separation and Limitation, as provided in the Agreement of Disengagement between Israel and Syrian forces of May 31, 1974. The UNDOF maintained the border with the Shebaa Farms as part of Syria.

In March 19, 1978, the UN Security Council passed Resolution 426 establishing the United Nations Interim Force in Lebanon (UNIFIL) headquartered in Naqura, Southern Lebanon to oversee the withdrawal of Israeli forces from South Lebanon. The Lebanese Government made no attempt to claim the Shebaa Farms.

On May 4, 2000, three weeks after the withdrawal of the Israeli troops from Lebanon in compliance with Security Council Resolution 425 and 426, 1978, the Lebanese Government officially filed a grievance with Israel to the UN Secretary General Kofi Annan. He called the Lebanese move a “new position”. Lebanese officials claim, without giving an explanation, that in 1951, Syria had given the Shebaa Farms to Lebanon. They claim also that there is no record to such a transfer at the United Nations. In fact one senior Lebanese official stated that the Syrian transfer of Shebaa Farms to Lebanon occurred in the form of “oral agreement” between the two countries and “nothing was documented.” In May 29, 2000, the Lebanese Newspaper, ‘The Daily Star’ described the land deed of one resident of the Shebaa Farms as “handwritten and signed on a yellow piece of paper in pencil and ink.” Furthermore, the Lebanese government presented the a forged land deed to the UN representatives date back to the 1940’s, years before the alleged transfer took place, an indication of inconsistency on the part of the Lebanese Government.

There are documents from the 1920s and 1930s that indicate some local inhabitant in the region who considered themselves to be part of Lebanon. Some have even paid taxes to the Lebanese government. But the demarcations from that period under the French mandate show that the Shebaa Farms lie within the borders of Syria. Detailed maps produced by the French in 1933, and again in 1945 point out to the same conclusion. U.S and French archives leave no doubt that the Shebaa Farms belong to Syria.

All maps belonging to the period before 1967 save one, an apparent forgery, show the land as being on the Shebaa Farms on the Syrian side of the border. In fact, on February 13, 2006, a Lebanese newspaper Beirut Times article quotes a Druze Leader Walid Jumblatt, member of the Lebanese Parliament displayed and map and revealed that it was a “fake map,” with the boundary shifted. In an interview, the Druze leader said the following: “The question of the Shebaa Farms was invented by Syria and Iran using Hizbullah as a pretense to have an armed presence in Lebanon. This must end.”

Lebanese army map published in 1961 and 1966 indicate the Shebaa Farms area, including Zebdine, Fashkoul, Mougr Shebaa, and Ramta as being part of the Syrian territory and lie inside the border of Syria. Every single Syrian map and every single Lebanese Ministry of Tourism map show the Lebanese border runs west of the Shebaa Farms. These maps make it clear that the Shebaa Farms are in fact a Syrian land.

The UN Secretary General issued the following report, disputing the claims of Lebanon on the Shebaa Farms, he states the following:

‘On 15 May 2000, the United Nations received a map, dated 1966 from the Government of Lebanon which reflected the Government’s position that these farmlands were located in Lebanon. However, the United Nations is in possession of 10 other maps issued after 1966 by various Lebanese Government institutions, including the Ministry of Defense and the army, all of which place the farmlands inside the Syrian Arab Republic. The United Nations has also examined six maps issued by the Government of the Syrian Arab Republic, including three maps since 1966, which place the farmlands inside the Syrian Arab Republic...’

Nancy Solderberg, a high-ranking official with the U.S. delegation to the UN, made a similar observation. She said: “When it was clear the Israelis were going to withdraw fully from Lebanon, Syrian and Lebanese officials fabricated the fiction that this small, sparsely populated area was part of Lebanon. They even produced a crudely fabricated map to back up the dubious claim. I and United Nations officials went into the map room in the United Nations and looked at all the maps of the region in the files for decades. All showed the Shebaa Farms clearly in Syria.

Hizbullah’s claim over Shebaa Farms

In June 18, 2000, the UN Security Council issued a statement confirming the identification of Israeli withdrawal, and noting that both sides would respect the Blue Line as identified. Moreover, the Security Council took note, “with serious concern,” of reports of violations by Hizbullah that had occurred since June 16, 2000, and called upon the parties to respect the line drawn by the United Nations.

On October 7 of that year, Hizbullah launched a daring attack into the Shebaa Farms and abducted three Israeli soldiers. In February 16, 2001, another attack was conducted by Hizbullah, it killed an Israeli soldier. In the meantime, the former Lebanese Prime Minister, Hariri was reassuring the world that there will be no more outbreaks of violence in south Lebanon. In an interview, he was quoted as saying: “We have a clear agreement with our Syrian brothers in this matter…There will be no provocations on our part.”

Hizbullah, founded in 1982 with the mission of expelling Israel from all Lebanese occupied land. The organization presents itself as being a charitable organization. It holds several seats in the Lebanese parliament, and two cabinet seats in the current Lebanese government of Prime Minister Fouad Seniora. Hizbullah is mainly funded by Iran and operates under the auspices of Syria.

The Lebanese Government allows Hizbullah’s militia to act despite Security Council Resolutions which call for all militias in Lebanon to be disbanded. In fact the Lebanese Government maintains that Hizbullah is a “national resistance group” and doe not fall under the requests of the Security Council.

Although Syria withdrew its forces from Lebanon in compliance with Security Council Resolution 1559, it still maintains control over Hizbullah. Syria uses the organization to force its will on Lebanon and to keep the Israeli forces engaged until such time comes when Israel ends its occupation of the Syrian territory

Hizbullah’s critics charge it with simply using the issue to justify its existence as an armed force and to continue serving as an outpost of Iran’s Islamic revolution. But would-be peacemakers say that if Israel relinquishes the area, Hizbullah will have no excuse to continue its armed role and could better be pressured to transform itself into a normal political party. This suggestion has been made by the Lebanese Prime Minster Fouad Seniora. In an interview with Aljazeera.net, the Prime Minister of Lebanon said his government “cannot force Hizbullah to disarm as long as Israel continues to occupy the Shebaa Farms.”

For Israel, the Shebaa Farms have little strategic importance and has always been subject to return to Syria in a peace negotiations. Israel might probably accept a pullback from the Farms if Syria formally ceded the area to Lebanon.

So far Syria has been supporting, verbally, Lebanon’s claim to the area, but it has shunned any official redefinition of its borders because it still regards the territory of Lebanon, Jordan and Israel to be part of the Greater Syria that existed before World War One.

The Dispute under International Law

The International Court of Justice is the principal judicial organ of the United Nations. Its prime function is to arbitrate international disputes. The court’s decisions are binding, and its broad jurisdiction encompasses cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force. The court may be asked to give advisory opinions at the request of the General Assembly or the Security Council or at the request of other organs and specialized agencies authorized by the General Assembly.

Paragraph 1 of Article 36 of the Statute of the International Court of Justice (ICJ) states the following:

“The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force.”

In Paragraph 2 of Article 36 of the Statute, the states may at any time “declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all disputes concerning…(b): any question of international law…”

Chapter IV, Article 65 states that “the Court may give an advisory opinion on legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request.”

Accordingly, the Lebanese government may request an “advisory opinion” from the ICJ to resolve the dispute over its territorial claims over the Shebaa Farms. Syria could be called on by the ICJ to submit an affidavit supporting Lebanon’s claim to the Shebaa Farms. The United Nations General Assembly and the Security Council may submit a request to the ICJ for an “advisory opinion”. None of that has happened yet.

Since its inception, the ICJ has ruled on many cases regarding the territorial claims. The following is an example:

• In the Case Concerning Sovereignty over Certain Frontier Land (Belgium v. Netherlands), the court traced developments that had begun before the 1839 separation on the Netherlands from Belgium, and in its judgment, on June 20, 1959, it indicated that sovereignty over the disputed plots belonged to Belgium.

• On July 8, 1991, Qatar filed in the Registry of the Court an Application instituting proceedings against Bahrain in respect of certain disputes between the two States relating to “sovereignty over the Hawar Islands, sovereign rights over the shoals of Dibal and Qit’at Jaradah, and the delimitation of the maritime areas of the two States. Bahrain contested the basis of jurisdiction invoked by Qatar. Finally the Court issued its ruling on March 16, 2001.

• On December 1, 1978, the Minister of Foreign Affairs of Tunisia notified the Court of a Special Agreement in the Arabic language signed at Tunis on 10 June 1977 between the Republic of Tunisia and the Socialist People’s Libyan Arab Jamahiriya. The government of Tunisia requested the Court to render its judgment on the principles and rules of international law which may be applied for the delimitation of the area of continental shelf appertaining to the Republic of Tunisia and the area of the continental shelf appertaining to the Socialist People’s Libyan Arab Jamahiriya.

• On November 26, 1957, the ICJ issued its ruling on the case concerning right of passage over Indian Territory between Portugal and India. The Portuguese Government requested the Court to recognize and declare that Portugal was the holder or beneficiary of a right of passage between its territory of Damao and its enclaves of Dadra and Nagar-Aveli and between each of the latter and that this right comprises the faculty of transit for persons and goods, including armed forces, without restrictions or difficulties and in the manner and to the extent required by the effective exercise of Portuguese sovereignty in the said territories, that India has prevented and continues to prevent the exercise of the right in question, thus committing an offense to the detriment of Portuguese Sovereignty over the enclaves and violating its international obligations and to adjudge that India should put an immediate end to this situation by allowing Portugal to exercise the right of passage thus claimed. The application expressly referred to Article 36, Paragraph 2, of the Statute and to the Declarations by which Portugal and India have accepted the compulsory jurisdiction of the Court.

• In its advisory opinion on the question put by the Security Council of the United Nations, “What are the legal consequences for States of the continued presence of South Africa in Namibia notwithstanding Security Council Resolution 276 (1970)?” On June 21, 1971, the ICJ issued its advisory opinion by stating that “the continued presence of South Africa in Namibia being illegal, South Africa is under obligation to withdraw its administration from Namibia immediately and thus put an end to its occupation of the Territory.”

• In a case between Libya and Chad, the two countries submitted to the Court a territorial dispute relating to the Aozou Strip in the Sahara. Libya’s claim as made in the case extended far to the south of that strip of land. The Court, in a judgment on February 3, 1994, found wholly in favor of Chad. After and agreement on the implementation of the judgment had been concluded between the two nations, Libyan forces, monitored by an observer force deployed by the Security Council, withdrew from the Aozou strip by May 31, 1994.

In the Middle East, as elsewhere in the world, there are territorial disputes including Sudan and Egypt on international boundary around the “Hala’ib Triangle,” a barren area of 20580 sq km. Libya claims about 19,400 sq klm in northern Niger and part of south-eastern Algeria. Kuwait ownership of Quruh and Umm al Maradim islands is disputed by Saudi Arabia. Iran occupies two islands in the Persian Gulf claimed by the United Arab Emirates: Lesser Tunb (called Tunb as Sughra in Arabic by UAE and Jazireh-ye Tonb-e Kuchek in Paersian by Iran) and Greater Tunb (called Tunb al Kubra in Arabic by UAE and Jarireh-ye Tonb-e Bozorg in Persian by Iran); it jointly administers with the UAE an island in the Persian Gulf claimed by the UAE (called Abu Mussa in Arabic by the UAE and Jazireh-ye Abu Mussa in Persian by Iran)-over which Iran has taken steps to exert unilateral control since 1992, including access restrictions and a military build-up on the island; the UAE has garnered significant diplomatic support in the region in protesting these Iranian actions.

Iran and Iraq, after their eight-year war, restored diplomatic relations in 1990 but are still to settle disputes concerning border demarcation, freedom of navigation and sovereignty over the Shatt al Arab waterway. Iraq also disputes over water development plans by Turkey for the Tigris and Euphrates Rivers. And Indonesia is in dispute over two islands with Malaysia, who is in dispute with Singapore over two other islands.

BIBLIOGRAPHY

For an in-depth discussion of this process, see Frederic C. Hoff, Refining Full Withdrawal: Remaking the Lebanese-Israeli Border, Middle East Insight, June 2000.
See Naomi Joy Weinberger, Syrian Intervention in Lebanon: The 1975-76 War, 1986.
See UN Security Council Report of the Secretary-General on the Implementation of Security Council Resolutions 425 (1978) and 425 (1978), Document S/2000/460, 22 May, 2000, p. 3.
Ibid.
http:/www.munic.org/pdfs/SC_B.pdf
See Asher Kaufman, Who Owns the Shebaa Farms? Chronicle of a Territorial Dispute, Middle East Journal, vol. 56 # 4, October 2002.
Ibid.
UN Security Council Resolution 350 (1974)
The Daily Star (Beirut), May 9, 2000.
The Daily Star (Beirut), May 29, 2000.
See Beyrouth 1:200,000 Sheet NI36-XII available in the U.S. Library of Congress.
http://en.wikipedia.org/wiki/Shebaa_Farms
World Net Daily, August 3, 2006.
See Report of the Secretary-General on the implementation of Security Council Resolutios 425 (1978) and 426 (1978).
http://www.jacksonville.com/tu-online/stories/072106/op1_3965102.shtml
Quoted in Nicholas Blanfon, Hizbullah Hoist by Its Own Petand, The Middle East, April 2001
BBC, What Is Hizbullah? http://news.bbc.co.uk/1/hi/world/middle_east/4314423.htm
Security Council, Report of the Secretary-General pursuant to Resolution 1559, 2004.
Aljazeera.net, July 28, 2006.
For a list of the Judgments of the International Court of Justice, visit http:www.icj-cij.org/icjwww/decisions.htm

©Copyright 2006, Gabriel Sawma. ALL RIGHTS RESERVED.

Tel. 609-915-2237

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2006-03-06T20:21:00.000-08:00

Gabriel Sawma

The Scope and Nature of Immunity from Jurisdiction for Heads of State under International Law

2006-01-17T22:28:00.000-08:00

The immunity of President Bashar Assad of Syria Under International Law.
By Gabriel Sawma, Esq.

The Assassination of Former Prime Minister, Rafiq al-Hariri.

In February 14, 2005 a powerful blast killed the former Prime Minister of Lebanon Rafik al-Hariri in Beirut. The US recalled its ambassador to Syria for consultations over the death, which raised fears of a return to the violence of Lebanon’s civil war years.

The United Nations Security Council called for the perpetrators to be brought to justice. The Secretary General Kofi Annan urged more progress on the withdrawal of Syrian forces from Lebanon. US Ambassador Margaret Scrobey delivered a note to the Syrian government expressing US outrage over the killing.

Mr. Annan said in a statement that he had written to Syrian President Bashar al-Assad, to urge him to comply with a UN resolution calling for the withdrawal of foreign troops from Lebanon.

The United States and France jointly initiated a demand by the Security Council to bring the killers to justice. UN Secretary General Kofi Annan announced the dispatch of an independent team to investigate the assassination. The mass demonstrations in Lebanon, featuring harsh attacks against Syria, which until then had been unprecedented, encouraged the West to place increased pressure on Damascus to fulfill the terms of Security Council Resolution 1559 and remove its forces from Lebanon. In April 26, 2005, the Syrian government announced the withdrawal of their forces in compliance with the Security Council Resolution.

A probe was established to investigate the killing of Rafiq al-Hariri, headed by a known German prosecutor, Detlev Mehlis. The investigation is still going on at the time of this article. The Question is, what will happen next. If Syria’s President is involved in this criminal activity, does he loose his immunity as Head of State?

Immunity Under International Law

Until the 20th century, there were no international courts which could exercise jurisdiction over heads of state, and national courts could not exercise jurisdiction over serving heads of state or former heads of state for public acts carried out while in office. This position under international law has since evolved.

It developed first under article 227 of the Treaty of Versailles (1919) whereby the former Kaiser, William II, was indicted for prosecution before special tribunal to be constituted by the victorious powers. Then came to the trials before the Nuremberg and Tokyo International Military Tribunals at the end of World War II.

Under the UN Charter Article 29, the Security Council has the power to establish subsidiary bodies to perform its functions. The Council could establish a Liaison Group with International Courts that would coordinate with the International Court of Justice (ICJ), international criminal tribunal, two of which were established: the International Criminal Tribunal for Yugoslavia (ICTY) and Rwanda (ICTR).

Due to significant financial and personnel requirements, none of the Security members supported the establishment of another UN tribunal similar to the ICTY and ICTR. Instead, the UN decided to create a special hybrid-court that will be administered jointly by the government involved and the United Nations.

Accordingly, the Security Council set up several criminal tribunals, these are:

· Special Court for Sierra Leone (SCSL) to look into the crimes committed against civilians with mass amputation and rape. The SCSL is a “hybrid” national and international court designed to bring the perpetrators of these crimes to justice.
· Special Tribunal for Cambodia (STC) to look into the crimes committed by the Khmer Rouge who killed an estimated 1 million people during the 1970s. Thirty years later, the UN and the Cambodian government agreed to establish a joint national and international court to hold those responsible accountable.
· Ad Hoc Court for East Timor to look into the crimes committed by the Indonesian military and pro-Indonesian militias who murdered thousands of Timorese during the territory’s struggle for independence, and hold responsible the perpetrators from the Indonesian government.

The primary difference between the Special Court and the ICTY and ICTR is the mandate under which they are created. The ICTY and ICTR were established by the Security Council under Chapter VII of the UN Charter, which gives the United Nations power to intervene in the affairs of sovereign state to restore international peace and security. These tribunals are under the jurisdiction of the UN and operate independently from and irrespective of the Yugoslav and Rwandan governments.

A treaty between the United Nations and the sovereign governments, usually under joint jurisdiction, created the Special Courts for Sierra Leone, Cambodia, and East Timor, and as such, the tribunals represent an entirely new model for bringing perpetrators or war crimes to justice. These Special Courts are staffed with both local and international judges and prosecutors. The Secretary-General appoints a Chief Prosecutor for each case, while the local governments, in consultation with the UN, appoint a Deputy. Although the Deputy will have some input on the indictments, the Chief Prosecutor will make the final decision.

If security allows, the Special Courts is usually located in the country where the crimes were committed; it is much easier for victims to follow the court’s proceedings. At the same time, diplomats will facilitate the diffusion of legal knowledge from international to local judicial officials, which will assist in rebuilding the country’s judicial system. The Security Council resolution in the case of Sierra Leon explicitly notes the “pressing need for international cooperation to assist in strengthening the judicial system of Sierra Leone.”

The drawback of Special Tribunal is that, because the Security Council directly establishes it, the court cannot assert primacy over the national courts of third states, unless the Council endows the court with the power to request the surrender of suspects in third states. It is important to keep in mind that, with the absence of a Chapter VII mandate will also prevent the court from extending its jurisdiction to prosecute war crimes perpetrated in neighboring country. A UN tribunal established with a Chapter VII mandate might be able to prosecute these crimes.

Prosecution of Heads of state, and high-ranking officials. The immunity issue

The immunity of head of state is one of the most controversial topics in international law. The purpose of the immunities is to offer a complete protection against national criminal jurisdiction. To create an exception to this rule would be to create a possibility of abuse and thereby defeat the purpose of the immunity. This principle has been held recently even with respect to international crimes. In the Pinochet case, the judges emphasized “head of state is till protected while in office by immunity ratione personae even in respect of serious international crimes.” That means a serving head of state or diplomat can still claim immunity if charged with [torture]. “The nature of charge is irrelevant; his immunity is personal and absolute.”

In March 2001, the French Cour de cassation held in the Qaddafi case that the crime charged, i.e. complicity in acts of terrorism, did not fall within the categories of international crimes providing for an exception to immunity from jurisdiction of Heads of State. A serving head of state is immune from prosecution in national courts, even in relation to serious acts of terrorism.

In the case of Fidel Castro, the Spanish Audienco Nacional reached the same conclusion. It stated that the Cuban President could not be tried even for international crimes, as long as he was serving in his capacity as head of state. He enjoys immunity under public international law. The Spanish Court ruled that it has no jurisdiction to try Castro.

In October 2001, the United States Court reached a similar conclusion in Tachiona v. Mugabe. It affirmed that the Torture Victim Protection Act did not override either traditional diplomatic immunities or the comparable immunity given to visiting heads of states. Diplomatic immunity prevents national prosecutors from initiating a lawsuit against foreign head of state or its diplomatic corps regardless of the charge.

Attempts were made by other governments to limit the scope of the immunity to heads of states and other high-ranking officials. In 1999, Belgium passed a law providing universal jurisdiction over international crimes committed by anyone, anywhere, even if the perpetrator was not present in Belgium and denying all immunities for such crimes. On April 11, 2000, a Belgium judge issued an international arrest warrant against Mr. Yerodia, who was at the time serving as the minister for foreign affairs for the Democratic Republic of Congo (DRC). The DRC initiated proceedings against Belgium in the International Court of Justice (ICJ), arguing that the universal jurisdiction in absentia asserted by Belgium exceeded international law and that Belgium’s non-recognition of the immunity of a serving minister of foreign affairs was a violation of international law.

The ICJ issued its ruling on Feb. 14, 2002 by 13 votes to 3 that Belgium had violated a legal obligation towards the Democratic Republic of Congo. The court firmly rejected the notion that, having regard to the developments in international law and in particular customary international, a serving foreign minister was entitled to claim immunity before a national court. It held that the immunity before national courts was not affected by the existence of treaties such as the Torture Convention. The court held “in that they failed to respect the immunity from criminal jurisdiction and the inviolability which the incumbent Minister for Foreign Affairs of the DRC enjoyed under international law. It held that the immunities ratione personae enjoyed by a Foreign Minister could not be set aside by a national court by charging them with war crimes or crimes against humanity.

The personal immunity of Heads of State from jurisdiction always covers official visits abroad, private visits are also protected, although to a more limited extent. In an exception to immunity given to high state officials from foreign jurisdiction, the International Court of Justice stated that the immunity seizes if the state they represent waives their immunity.

The Immunity of Head of State Under the Special Tribunals

With the establishment of UN Special Tribunals and a growing body of international human rights law, the international community has strongly asserted individual responsibility for violations of human rights. The status of sitting Head of State appears to be the last battleground on this issue; prime ministers, presidents, and kings are remaining individuals who are granted immunity for the gravest crimes by a system of international law, which refutes impunity for all other individuals. This situation is being reversed gradually.
Sierra Leone suffered through a gruesome, ten-year civil war. The Revolutionary United Front (RUF), led by Foday Snakoh, used amputations and mass rape to terrorize the population and gain control of the country’s lucrative diamond mines. Charles Taylor, then president of neighboring Liberia, backed the insurgency providing arms and training to the RUF in exchange for diamonds. In 1999 the UN eventually brokered the Lome Peace Accord between the warring parties.

In January 2002 the UN Security Council approved the Special Court for Sierra Leone (SCSL) to try those responsible for the crimes committed during the civil war. The purpose of the Special Court was to prosecute those with the “greatest responsibility” for crimes against humanity, the court may decide whether to indict individuals who continually instigate conflict and brutality in their region. On June 4, 2003, the Special Court for Sierra Leone (SCSL) issued an arrest warrant against Charles Taylor, the incumbent President of Liberia. When the warrant was issued, Mr. Taylor was traveling to Ghana for talks with Liberian rebel groups to end a four-year civil war that has destabilized West Africa. The indictment against Mr. Taylor had been issued on March 7, 2003, but was kept sealed until the Special Court Prosecutor saw in Mr. Taylor’s trip an opportunity to apprehend him. The warrant was served on the authorities of Ghana, and transmitted to Interpol. Ghanaian authorities did not apprehend him.

On May 31, 2004, the Appeals Chamber of the Special Court for Sierra Leone (SCSL) in Freetown ruled unanimously that Charles Taylor does not enjoy any immunity from prosecution by the Court though he was the serving Head of State of Liberia at the time criminal proceedings were initiated. This historic ruling by the Court is a significant contribution to the modern international law norm asserting that Heads of State and other high-ranking governmental officials are not absolved of criminal responsibility for serious international crimes.

Despite its hybrid nature, the SCSL is not considered a national court; it acts as an international court, even though it functions on the territory of Sierra Leone. In other words, it is based outside the legal system of Sierra Leone. The State of Sierra Leone transferred the jurisdiction to the SCSL on the basis of an agreement with the UN Security Council. Given the Arrest Warrant case, Sierra Leone courts would have been unable to prosecute Mr. Taylor.

As the SCSL performs its job in Sierra Leone, it is independent from the national judicial system; the prosecutor and judges enjoy diplomatic immunity from any undue influence by its host state on judicial decisions. The fact that Sierra Leone has appointed three judges is negligible as they can always be overruled by a majority opinion of international judges, or in cases of clear prejudice may be disqualified.

Chapter VII of the UN Charter, which governs ICTR and ICTY, does not back the agreement between the Security Council and Sierra Leone. Both ICTR and ICTY were established by Chapter VII Security Council resolutions, by which all members of the UN were bound by the decision to remove immunity for state officials. Although the SCSL did not have Chapter VII backing, nevertheless, it had the “will” of the international community behind it. The broad support from all sections of the international community for its creation-political and financial-, and that it was set up pursuant to (although not by) a Security Council resolution. It was this unexpressed fact, which gave the SCSL a sufficient degree of comfort to hold that it was an international court before which immunity of a Head of State did not apply. The majority opinion among legal scholars favored the view that there is no entitlement to immunity before international courts, and therefore nothing to be waived.

On June 29, 2001, the prosecutor of the International Criminal Tribunal for the former Yugoslavia, pursuant to her authority under article 18 of the Statute indicted Slobodan Milosevic while he was President of Yugoslavia.

The Statute of Rome, which established the ICC adopted in 1998 article 27, which provides that there was no entitlement to immunity for any person subject to the Jurisdiction of the ICC.

The Iraq Tribunal Trying Saddam Hussein and Other Top Baath Leaders

The capture of Saddam Hussein on December 13, 2003 prompted a worldwide debate about how best to try him and other top Baath Party Leaders. On August 11, 2005, the Iraqi Transitional National Assembly approved a war crimes tribunal in Iraq, which was originally established by the US-installed Iraqi government Council. The court is mandated to prosecute numerous high level members of the former Iraqi regime who are accused of crimes against humanity, war crimes and genocide, but the court has mainly focused on its most high-profile case: Saddam Hussein. Saddam went on trial on October 19, 2005, for a 1982 massacre that took place in Dujail, north of Baghdad.

Human Rights groups and legal experts agree that the Iraqi people must have the right to try their own persecutors, but question the competence and impartiality of Iraq’s judicial system. The Regime Crimes Liaison Office (RCLO), run by the US Department of Justice, is actively involved in the court’s investigations, the translation of materials and the training of Iraqi lawyers and judges. Critics believe that by backing a trial in Iraq, Washington hopes that its past support for Saddam Hussein will not be revealed. Opponents of the court had hoped for an internationally organized tribunal with significant domestic participation, similar to the Special Court for Sierra Leone (SCSL), to avoid the tribunal degenerating into a “political show trial.” An international tribunal would also allow Kuwait and Iran to take part in the trial (as they have requested) for crimes committed against these two countries.

Is the President of Syria Immune From Prosecution Under International Law?

Without commenting on the merits of the case, the assassination of the former Prime Minister al-Hariri of Lebanon by foreign elements from Syria constitutes a violation to international law. Should the President of Syria be implicated in such a terrorist attack, his immunity will be hanging in the air.

The assassination of former Lebanese Prime Minister Rafiq Al-Hariri in February 2005 led the UN Security Council to issue Resolution 1595 setting up an international commission of inquiry.

On October 31, 2005, the Security Council met at Ministerial Level and formally endorsed the Report of the United Nations Independent Investigation Commission that found evidence of Syrian involvement in the assassination of former Lebanese Prime Minister Rafiq al-Hariri. The Security Council issued Resolution 1636 under Chapter VII of the United Nations Charter. It called for Syria to “cooperate fully and unconditionally with the Commission and insisted it not interfere in Lebanese affairs.”

On December 17, 2005, the UN Security Council adopted Resolution 1644 in which it demanded that Syria respond “unambiguously and immediately” to the Commission investigating the terrorist attack that killed former Lebanese Prime Minister Rafiq Hariri and extended the probe initially until June 15, 2006, leaving open the possibility of further extension.

The Council also authorized the Commission, following the request of the Lebanese Government, to extend its technical assistance to that Government with regard to their investigations on the terrorist attacks perpetrated in Lebanon since October 1, 2004, and caused the murder of prominent journalists including Gibran Tueini, editor in chief of a leading Lebanese newspaper “An Nahar”. It asked the Secretary-General, in consultations with the Commission and the Lebanese Government, “to present recommendations to expand the Commission’s mandate to include investigations of those other attacks.”

The Security Council also acknowledged the Lebanese Government’s request that “those eventually charged with involvement in the terrorist attack be tried by an international tribunal, the Council asked the Secretary-General to help that Government identify the nature and scope of the international assistance needed in that regard, and to report to the Council in a timely manner.”

In a recent TV interview, the former Vice President of Syria, Abdul-Halim Khaddam, who defected to France, said that Assad had threatened Hariri during their last meeting. Syrian President denied the charge, but suggested in an interview that he would not allow UN investigators to interview him about the Hariri’s killing.

Under the current situation, and before the formation of the International Tribunal, the Prosecutor can issue an Arrest Warrant against the president of Syria, but national courts, based on the precedents mentioned earlier, will not agree to that.

However, as soon as the International Special Court is established, the Prosecutor can issue an International Arrest Warrant; upon the approval of the Court, the Interpol will be notified and the Head of State will be considered a fugitive. An arrest warrant is an order issued by the Prosecutor to authorize the arrest and detention of an individual.

Under the rules of the International Criminal Court, the Pre-Trial Chamber (PTC) will authorize such an arrest warrant, upon an application by the Prosecutor. (An indictment, mostly used in common law countries, is a formal charge against an individual ‘or formal accusation’ for having allegedly committed a serious criminal offense. The ICTY but not the ICC is using the indictment procedure.)

Once the Prosecutor has initiated an investigation, he then may at any time make an application for an arrest warrant Pre-Trial Chamber (PTC). The Prosecutor’s application for an arrest warrant shall contain the following information (Rome Statute, Art. 58):
· The person’s name and identifying information;
· A specific reference to the alleged crimes and a concise statement of the facts thereof;
· A summary of evidence and information establishing the reasonable grounds for a warrant; and
· The reason why the Prosecutor believes the arrest is needed.

Following receipt of the Prosecutor’s application, the PTC will evaluate the materials presented by the Prosecutor and issue an arrest warrant when the PTC feels that there are reasonable grounds to believe that the person has committed a crime under the jurisdiction of the ICC; and when the PTC finds it necessary that the person be arrested. Arrest warrant remains in effect until the Court decides otherwise.

The Chamber may decide to keep a decision “sealed”, this means that the decision will be confidential and only accessible to those persons or organs of the ICC (or outside actors), which the Court authorizes.

On the basis of this arrest warrant, the Court may request a State Party to make a provisional or a full arrest and surrender. The Registrar is responsible for transmitting a request for cooperation issued by the Chambers (e.g. a request for arrest) to a State Party or international organization. The Registrar will also be responsible for receiving all responses to the request from the requested State or international organization. However, a Chamber may allocate to the Prosecutor, instead of the Registrar, the responsibility to transmit a particular request for cooperation, or warrant of arrest, and to receive the responses to such requests.

What happens after an arrest warrant and a request for arrest has been issued?

The ICC does not have its own police force. When the Pre-Trial Chamber has issued an arrest warrant, the Court relies on the cooperation of States and international organizations to arrest and surrender the person. Moreover, the Court may, by itself or following a request by the Prosecutor, take certain measures that are necessary to ensure the safety and well being of any victims and witnesses, including measures related to the protection of information.

A State Party receiving a request for cooperation has to keep the request confidential. Any information about the request may only be disclosed if this is necessary for the execution of that request.

Once a person has been arrested and the Court has been informed about the arrest, the Court must hand over the arrest warrant to the arrested person. The arrested person must then be brought before a court in the State Custody, which must determine, based on its national laws, that the right person has been lawfully arrested.

Beyond A Reasonable Doubt

Judicial authorities should be aware of the fact that it may be very difficult to determine the personal responsibility of a Head of State. Indeed, it would be necessary to prove beyond reasonable doubt that he ordered or instigated the perpetration of the crimes charged with, or, despite having the effective power and authority to prevent or punish the persons responsible for the commission of those crimes, willfully failed to do so. So far no Syrian official has been punished in Syria.

©Copyright 2006 Gabriel Sawma Esq. all rights reserved.
For interviews about international law, or about the Scope and Nature of Immunity from Jurisdiction for Heads of State Under International Law, please contact the author. Tel 609-275-6321; Fax 609-275-0355 or Email: gabrielsawma@yahoo.com, or visit our web log at: http://www.gabrielsawma.blogspot.com
DISCLAIMER: The materials contained on this website are for general purposes only and are subject to DISCLAIMER. The reader should not consider this information to be an invitation for an attorney-client relationship, should not rely on information provided herein and should always seek the advice of a competent counsel.

Doing Business in the Arabian Gulf Region

2005-05-03T10:59:00.000-07:00

BACKGROUND

The United States uses about one-quarter of the world’s total energy output, but has less than five percent of the world’s population. According to statistics of the US Dept. of Energy, 19.9% of crude oil products imports to the US, during January 2005, came from the Persian Gulf countries (Petroleum Supply Monthly). Of that 14% came from Saudi Arabia.

Today, Saudi Arabia produces more than 76.8 million barrels a day, an income of 3.8 US billion/day. This gives that country a greater role and significant financial and political power in world affairs.
It is a kingdom created by King Ibn Saud (1882-1953) and ruled by the Islamic (Shari’a) law. It is the center of prayer for more than one billion Muslims around the world. It is the homeland of Islam and the Quran is that kingdom’s constitution, which is the source of all legislation.
Doing business in Saudi Arabia is one of the most complex issue any businessman or lawyer faces. Although all commercial codes in the Arabian Gulf region, including S
udi Arabia are based on western-style laws, as long as they did not contradict the Shari’a.

CUSTOMS AND TRADITIONS

The legal system throughout the Arabian Gulf states is very different from that of the United States or Europe. Codified law based on modern norms is still at early stage. Customs are more important in certain situations than written law. You may have a written agency agreement with an agent, with a clause to terminate the agency under certain conditions; however, it is very difficult to terminate the agreement even though the conditions are satisfied. No matter how you draft your agreements with an agent, US firms usually pay considerable amounts of money to buy their way out. In other words, establishing a justified cause for termination of an agreement before the concerned authorities may be impossible.
Recognizing long-standing traditions is very important in establishing a business relationship, showing kindness, practice humility, seek moderation, sincerity, and honor, shaking hands, hospitality and using gestures and body movements are all proper form of communications. Placing the palm of the right hand on the chest immediately after shaking hands with another man shows respect or thanks. A very slight bow of the head is a sign of respect, biting the right forefinger which has been placed sideways in the mouth may be an expression of regret, touching noses together three times when greeting is a gesture of friendship, and so is kissing two men each others on the cheek.
Using the right hand to eat is a sign of cleanness; avoid stretching legs in front of another person, refrain from putting feet on tables or across someone. Keep yourself out of trouble by not staring at women. Keep dogs and other household pets away from your Arab friends; leaving food on a plate after eating is recommended, it shows a symbol of abundance of food and considered a compliment to the host. Do not ask for alcoholics because the Quran forbids that, unless your host offers that. Avoid criticizing someone, in front of others, it can be harmful. Eating pig meat is forbidden in the Quran and so is the ham sandwich. A handshake is expected at all times. In Saudi Arabia, do not take photographs in public, it may cause you some troubles. You may hear IN SHA ALLAH “will of God” many times during conversation; this has been a tradition for centuries.
If you are offered to see the Quran, touch it with clean hands. When you visit a mosque, make sure you take off your shoes at the entrance and leave them there before going in, you cannot go into the mosque wearing shorts. Arab traditions require that men and women do not sit together, that women should sit with women only in a gathering.
Pointing a finger at someone may be taken as a threat, do not do that. When waiting at a bus stop or a train station, you will not see people standing in line; they push and shove, and everyone considers himself to be first in line.
Some of these customs and gestures are older than Islam; they may have been in the Middle East during the early civilizations. Such customs have to be respected and might be effective in reaching a deal with your prospective customer.
These are just few examples of the customs and gestures an American businessman will face when meeting with his counterpart in the Gulf countries.
As a US citizen with Middle Eastern background, I am in a position to give legal as well as social advice on all issues related to doing successful business in the Middle East, especially after the events of September 11, 2001. The rise of the Islamic fundamentalists, the interpretations given to the Quran and the Hadith (which constitutes the saying of the Prophet Muhammed), the Ulama (Muslim scholars) and the four different schools of theology in Islam, the aspirations for democratic reforms, does democracy works in the Middle East and to what extent, all of these fundamental and complex issues are important to understand from the American and European points of view.
Do not eat or drink in front of Muslims during the month of Ramadan. It is a fasting month and Friday is the Muslim Holy Day; business is conducted Saturday through Wednesday or Thursday.
Never interrupt Muslims at prayer. Religious prayers are performed five times a day.

INTELLECTUAL PROPERTY PROTECTION

We can not assume that a businessman from the Middle East has the same standard of business ethics as we have here in the United States, even lawyers and accountants in that region do not approach an ethical issue the same way we do here. The word “international transactions” sounds good, but it does not have the same meaning that we attach to it and foreign lawyers who focus on statutory interpretation, may place lesser emphasis on factual analyses and issue spotting than do common law trained lawyers.
In the field of intellectual property rights, most of the Middle East countries have not been able to grasp its true meaning. In an entertainment case, my client is trying to locate the producer of a song originated from Lebanon in order to negotiate a payment for using a portion of that song found on a CD he bought in New York, unfortunately, the CD does not carry the producer’s name or any name to contact because CD is being sold apparently without permission. The United Arab Emirates has recently joined the Paris Convention for the Protection of Industrial Property, the first treaty for the protection of IPR to which the UAE has acceded.
In many cases the foreign agent/distributor of an American product or service may register a trademark in his name to peed things up, don’t allow that to happen. The American firm should initiate registration of its trademark before an agency/distributorship is reached. Obtaining an international trademark protection is of utmost importance, that requires filing separate patent and trademark applications for protection in each country.

WORKING WITH INTERNATIONAL COUNSEL

American lawyers practice domestic law, but companies who embark on doing business in the Middle East must seek a legal counsel with Arab speaking lawyer admitted to the bar of the country where business is being conducted. Foreign lawyers have different legal traditions; legal education, ethical views and they operate in different and unfamiliar ways.
Middle East lawyers may not understand your business, your industry or your documentation process. They are familiar with the inner work of the local government agencies. Their retainer fee is much less than what an American lawyer charges. The search for a foreign legal counsel could be obtained from the US Embassy abroad or from the US Dept. of Commerce.
The research for drafting an agency/distributorship agreement should be done here in the United States to conform to US and international law, in consultation with the foreign counsel for conformity with Islamic and local laws.

AGENCY/DISTRIBUTORSHIP AGREEMENTS

The most commonly ways of selling in the Middle East is by appointing a commercial agent/distributor; other forms of sales is to establish a company presence through a joint venture; or authorization to a local firm via a licensing or franchising arrangements.
US exporters with different lines of products may find it more advantageous to appoint different commercial agents or distributors in different states. Many companies handle numerous product lines, making it sometimes difficult to promote all products effectively. Most agents or distributors prefer to handle products on an exclusive basis.
Different countries have different commercial agency laws. Some laws do not distinguish between an agent and distributor, referring to both as commercial agents.
Selecting the right agent or distributor is the most important decision, because termination of a contract without compensation is difficult. Most US firms found themselves paying considerable amount of money to buy their way out of an agreement irrespective of any specific performance criteria, which may have been agreed by the parties.

DISPUTE SETTLEMENT

Some countries in the Middle East are members of the International Center for the Settlement of Investment Disputes. However, most of the disputes are handled through arbitration or have been resolved by the parties involved. Some disputes may end up in the court for arbitration.

TRADE REGULATIONS AND STANDARDS

Each country in the Middle East operates its own customs authority. In recent years there has been a progress between the United Arab Emirates to create Customs Council whose priority is to establish a customs union within the UAE to unify Customs rules and regulations, procedures and documentation

FOREIGN CORRUPT PRACTICES ACT (FCPA)

Paying off officials to sell products overseas is a violation to the US law. The Justice Department is using aggressive tactics to investigate potential FCPA violations.

IS DEMOCRACY COMPATIBLE WITH ISLAM

OTHER US CRIMINAL LAWS AFFECTING INTERNATIONAL BUSINESS TRANSACTION
FOREIGN ANTITRUST LAWS AND USA

US ANTIBOYCOTT LAW AND REGULATIONS

THE MODES OF FINANCING UNDER ISLAM

TAX AND EXCHANGE CONTROL IN THE MIDDLE EAST

FREE TRADE ZONES

FREEDOM OF EXPRESSION

Freedom of opinion and expression within the framework of the law is guaranteed in most of the constitutions of the Middle East countries. However, different interpretations may derive from that principle. There is censorship of the Internet in many countries. In the UAE for instance users do not have direct access to the Internet, they dial in to a proxy server maintained by the government which refuses access to a website if that website is banned. There are also certain prohibitions on the publication of a certain matters under Federal law (November, 15, 1980) regarding publications and publishing which includes for example any criticism of the President of the UAE and the governors of the individual Emirates and the publication of any materials that insult Islam or breach of public morals.

Gabriel Sawma

Copyright© 2005, Gabriel Sawma. ALL RIGHTS RESERVED

For interviews on international law, the Middle East and Islamic (Shari’a) law, or for interview on the topic covered by this article, please contact the author. Tel 609-275-6321, or email gabrielsawma@yahoo.com

The materials contained in this article are for general information purposes only and are subject to DISCLAIMER. The reader should not consider this information to be an invitation for an attorney-client relationship, should not rely on information provided herein and should always seek the advice of competent counsel

Doing Business in the United Arab Emirates

2005-04-23T16:08:00.000-07:00

Background

The United Arab Emirates (UAE) is composed of seven Emirates: Abu Dhabi, Dubai, Sharja, Ras El-Khaima, Umm al Quwain, Ajman and Fujaira. In 1971, the rulers of the seven emirates agreed to establish a constitution, which became the basis of federation. They occupy the southern corner of the Arabian Peninsula. Abu Dhabi, the capital, occupies 86.7% of the total area of the UAE. The total population of the UAE is 2.95 million, 80% of them are non-nationals. The religion of the Emirates is Islam, but Christianity, Hinduism and other religions co-exist. The official language is Arabic, though other languages such as English, French, Hindi and Farsi are also spoken.

The overall performance of the UAE’s economy is heavily dependent on oil exports, which account for over 30 percent of total gross domestic product (GDP). Growth in real GDP was 6.4 percent in 2004, partially due to higher crude oil prices. For 2005, real GDP growth is projected to reach 6.5 percent. The non-oil segment of the UAE’s economy also is experiencing strong growth, particularly the petrochemicals and financial services sectors which contribute around 70 percent of the UAE’s total GDP, and about 30 percent of its total exports.

In recent years, the UAE has encouraged construction of new hotels, restaurants and shopping centers, and expanding airports and duty-free zones. The UAE has been a member of the World Trade Organization (WTO) since 1995, and has one of the most open economies in the region. It began negotiations in March 2005 with the United States on a possible free trade agreement.

The Legal System

The constitutional federation of the United Arab Emirates calls for the establishment of a high court (Cour de Cassation) modeled on the French highest court. It also calls for the establishment of two other layers of judiciary: the Courts of First Instance and the Courts of Appeal.

Although Islam is the source of legislation in the UAE, the civil courts have been granted competence to review disputes in connection with commercial transactions. Islamic (Shari’a) law is applied on matrimonial disputes such as marriage, divorce, alimony, custody and inheritance. In Abu Dhabi, however, Islamic Courts are given competence to issue rulings on commercial disputes and criminal offences.

In the UAE, much legislation have been enacted into law in such matters as the Labor Law (1980), the Agency Law (1981), the Maritime Law (1981), Commercial Company Law (1984), Civil Transaction Law (1985), Penal Code (1987), the Law of Criminal Procedure (1992), the Law of Evidence in Civil and Commercial Transactions (1992), the Civil Procedure Law at the Federal Courts (1992), the Protection of Intellectual Property Law and the Rights of Authors (1992), the Patent Law (1992) and the Commercial Transactions Law (1993).

Selling in the UAE

Mostly appointing a commercial agent/distributor does selling goods and services in the UAE. Other methods are used also, such as direct sales to the end-user, establishment of a joint venture with a local firm, or selling through a licensing or franchising agreements.

It is advantageous to an exporter to appoint different commercial agents or distributors for different emirates. Exporters with diverse product lines or services may have to appoint multiple agencies and distributorships to handle their businesses. Agents act on behalf of the exporter, they do not buy the products or services, and instead they get commission or other form of compensation. Distributors on the other hand, buy directly from the exporter and warehouse the product at their facilities and re-sell at a profit.

The UAE legal system does not distinguish between an agent and a distributor, they are referred to as commercial agents. Your legal counsel should make sure that the agreement specifies in detail the definitions of the terms used. The Ministry of Economy and Commerce handles registration of commercial agents. This is a Federal law applicable throughout the United Arab Emirates.

An agency agreement may be terminated, however, a government committee may interfere should a dispute between the parties arise. Usually, the committee rules in favor of the local agent. In most cases, compensation to a local agent is granted.

The terms and conditions of a contract should be clearly defined, it should include the geographic territory to be covered by the agent, verification of licenses given to the agent to operate and the terms of the expiration of the agreement, all have to be agreed upon in advance. That makes a competent attorney indispensable.

Some firms may decide to set up an office in the UAE. To do so, the firm must have a local sponsor, and the emirate of domicile must license it, before beginning business activity. Banks and financial institutions are required to get approval from the Central Bank of the UAE. Insurance companies and related agencies get their approval from the Ministry of Finance and Industry and pharmaceutical and medical products from the Ministry of Health.

All firms intend to do business in the UAE, are required to be registered with the Chamber of Commerce in each of the emirates where the business in licensed to operate. Chambers of Commerce in the UAE is part of the government and membership is mandatory.

Companies wish to establish offices to directly conduct business in the UAE are required to go into joint-venture agreements with local nationals owing at least 51% of the ventures, except professionals or artisans where 100% foreign ownership is permitted. To establish an office in the UAE, the law requires the following documents:
· Articles of association of the company
· Certificate of Incorporation
· A resolution of the board of directors of the company to set up the office and practice activities in the UAE. The resolution also gives the power of attorney to the representative to establish an office and to submit the required applications to the local government authorities
· The last two audited balance sheets of the foreign company together with the auditor’s report, any other documents which proves the sound financial position of the company
· A copy of national agent/sponsor agreement duly authenticated
· Photocopies of the passport of the national agent/sponsor
· A valid lease agreement of the company’s office premises

All the above-mentioned documents should be notarized and authenticated by the concerned governmental authorities.

Need for a local attorney

One of the most important issues to any firm contemplating establishing agency relationship in the United Arab Emirates is their ability to terminate a registered agency. Some companies have paid considerable amounts of many to buy their way out of an agreement. The law in the UAE provides the right for local companies to maintain their agencies irrespective of any specific performance the parties have agreed to. It may be impossible to get the authority approve the termination of an agency regardless of any justified cause, even if it is proven that the agent did not perform his obligations. The best protection is to conduct a serious research on the prospective agent, and to consult with a competent local attorney.

Gabriel Sawma

© Copyright 2005, Gabriel Sawma. ALL RIGHTS RESERVED.
For interviews on international law, the Middle East and Islamic (Shari’a) law, or for the material covered by this article, please contact the author. Tel. 609-275-6321or E-mail gabrielsawma@yahoo.com

This website is researched, edited, published and maintained by Gabriel Sawma.
The materials contained on this website are for general information purposes only and are subject to disclaimer. The reader should not consider this information to be an invitation for an attorney-client relationship, should not rely on information provided herein and should always seek the advice of competent counsel.

The Nigerian Scam and its Impact on Global Economy

2005-04-22T10:03:00.000-07:00

Since the early 1980’s a worldwide scam has been running under successive governments of Nigeria. The scam is referred to as “Advance Fee Fraud”, “4-1-9- Fraud” and the “Nigerian Connection”. The term 4-1-9 comes from the section of the Nigerian Criminal Code which outlaws fraudulent activities, though, not all 4-1-9 scams originate in Nigeria, some originate from other West African nations such as Togo, Ghana, Liberia, Sierra Leone, Ivory Coast, etc. In most cases, 419 emails from other countries are also Nigerians, since the central office of the scam involved is Nigeria.

It is estimated that five billion US$ (as of 1996) has been collected from charitable organizations, small businesses and individuals targeted in the United States and Western Europe. Nowadays, scam artists are shifting their targets to new countries in Central and Eastern Europe as well as Asia.

The scam operates in the following manner: You receive a unsolicited fax, e-mail, or letter from someone you have never heard of, promising large amounts of money in exchange for a little assistance. Some of these messages purporting to come from someone who claims to work for the Nigerian Central Bank or from the Nigerian government.

Common variations on the scam include crude oil deals, someone died and left you money in his will, money cleaning where the scam artists have a lot of currency that needs to be cleaned by red-mercury chemical before it can be used, money available for deposit in your bank. The scammer may remind his victim of the fact that he has the authority to transfer government funds out of Nigeria.

The intended victim is reassured of the authenticity of the arrangement by forged or false documents bearing apparently official Nigerian government letterheads, seals, as well as false letter of credit, payment schedules and bank drafts. In some cases the scam artist would arrange for a meeting between the victim and “Government Officials” in real or fake government offices.

Their targets include among others, religious organizations by claiming that they represent a church or mosque. At some point, the victim is asked to pay up front “Advance Fee”. After that fee is paid, “Complications” start to arise. They require still more advance payments until the victim either quits, runs out of money, or both.

The messages may claim that the recipient’s name was recommended by a respected source, it also claims that a large some of money, normally over US# 10 million, is not accessible for various reasons, and that the recipient’s help is required to release the fund, for which a substantial commission, typically 25 percent is promised, and that 5 percent of the funds will be used to pay transaction costs and the sender will retain the remaining 70 percent. The message usually gives guarantees that the transaction is “risk free”, and asked to treat the deal as strictly confidential.

Countless number of individuals, companies, clergymen have fallen prey to the scheme. It is reported that a Brazilian businessman was duped in 2001 of US$ 181 million. Tampa, Florida resident lost US$ 400,000 to the Nigerian Scam. A New Zealand paper reported in November 2002 that a businessman was duped of US$ 4 million. A bishop in Los Angeles lost US$ 2 million to this scam, and the list goes on.

In one of the scam scenarios, the scam artists claim that a special chemical is needed to clean the money that have been defaced in order to make the money usable. The trick requires that the victim forward advance money for the purpose of buying new supplies of the chemical for cleaning the money.

In all of those cases, the victims of 419 Scam could not count on much assistance from local authorities. The chance to recover any funds is very little.

During the year 2002, the Financial Action Task Force (FATT), an investigative arm of the Organization for Economic Cooperation and Development (OECD), threatened to impose financial sanctions against Nigeria to crack down on money laundering.

In the aftermath of September 11, 2001, the United States launched a clampdown on the funding of terrorist groups, in particular warned Nigeria of action if the deadline (December 15, 2002) is not met.

Under pressure, the government of Nigeria met the deadline by passing law to crackdown on 419 scams.

The United States Secret Service has instructed anyone in the US, who lost funds to the Nigerian Scam to forward appropriate written documentation to: U.S. Secret Service, Financial Crime Division, 950 H Street, NW, Washington D.C. 2001. or telephone (202) 406-5850, or E-mail 419.fed@usss.treas.gov

If you received a letter, but have not lost any monies to the scam, please fax a copy of that letter to (202) 406-5031.

If you reside outside the United States, you should report it to your local authorities and send documentation via fax to the United States Secret Service at the above-mentioned address.

WARNING: 419 Scam can be dangerous. Victims may be asked to travel to Nigeria to complete a transaction or see the “Red Mercury” cleaning process. They are often told that a visa to Nigeria is not required to enter the country. Entering Nigeria without a valid visa is a serious offence. The scam artists may bribe airport officials to pass the victim through immigration and customs. The victim’s illegal entry may then be used as a leverage to coerce the victim into releasing funds. In certain cases, violence and threats of physical harm have been used to pressure their victims. In June 1995, an American citizen was murdered in Lagos, Nigeria, while pursuing a 419 scam, and many other foreign nationals have been reported as missing.

This website is researched, edited, published and maintained by Gabriel Sawma.
©Copyright 2005 Gabriel Sawma. ALL RIGHTS RESERVED.

For interviews about international law covered on this site, or for interviews about the Middle East and Islamic laws, or about the Nigerian Scam, please contact the author. Tel 609-275-6321; Fax 609-275-0355 or Email gabrielsawma@yahoo.com

The materials contained on this website are for general purposes only and are subject to DISCLAIMER. The reader should not consider this information to be an invitation for an attorney-client relationship, should not rely on information provided herein and should always seek the advice of a competent counsel.

Public International Law and Organizations

2005-04-14T08:26:00.000-07:00

PUBLIC INTERNATIONAL LAW

Introduction to international law

· Definition: comparative study between public and private international law
· Background: the development of public international law since the Treaty of Westphalia (October 23, 1648), to the establishment of the Charter of the United Nations (June 26, 1945).

The United Nations institutions and functions

Statute of the International Court of Justice (1945)

Charter of the Organization of American States (April 30, 1948) signed in Bogota in 1948 and amended by the Protocol of Buenos Aires in 1967, by the Protocol of Cartagena de Indias in 1985, by the Protocol of Washington in 1992, and by the Protocol of Managua in 1993.

Treaty establishing the European Economic Community or Treaty of Rome (March 25, 1957, as amended by subsequent treaties through the Treaty of Amsterdam (October 2, 1997; the Treaty on European Union (Maastricht, February 2, 1992); The Treaty of Nice (February 26, 2001) and the Treaty Establishing a Constitution for Europe which is undergoing ratification throughout the Union.

International Environmental Law: The customs, treaties and concepts of international law related to the environment, it includes the following:
· Convention for the Establishment of the European and Mediterranean Plant Protection Organization (April 18, 1951)
· International Plant Protection Convention (December 6, 1951
· The Arctic Treaty (December 1st, 1959)
· African Convention on the Conservation of Nature and Natural Resources (September 15, 1968
· Convention Concerning Protection against Hazards of Poisoning Arising from Benzenes (June 23, 1971)
· United Nations Conference on the Human Environment in Stockholm (1972)
· Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter (London, 1972)
· International Convention for the Prevention of Pollution from Ships (February 17, 1978)
· World Charter for Nature (1982)
· Convention Concerning Safety Use of Asbestos (June 24, 1986
· Convention on Early Notification of a Nuclear Accident (September 26, 1986)
· London Guidelines for the Exchange of Information on Chemicals in International Trade (May 25, 1989)
· Protocol on Environmental Protection to the Antarctic Treaty (October 4, 1991)
· United Nations Conference on Environment and Development (June 14, 1992)
· North American Agreement on Environmental Cooperation (September 12,1993)
· International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea (May 3, 1996)
· Rotterdam Convention on the Prior Informed Consent Procedure For Certain Hazardous Chemicals and Pesticides in International Trade (September 11, 1998)
· Other conventions, protocols and treaties related to the protection of the environment

International Law – Human Rights
· Universal Declaration of Human Rights (1948)
· Convention on the Prevention and Punishment of Genocide (December 9, 1948)
· Geneva Convention I (August 12 1949)
· Geneva Convention II (August 12, 1949)
· Geneva Convention III (August 12, 1949)
· Geneva Convention IV (August 12, 1949)
· European Convention on Human Rights (November 4, 1950)
· Convention Relating to the Status of Refugees (July 28, 1951)
· Supplementary Convention on the Abolition of Slavery (September 7, 1956)
· International Convention on the Elimination of All Forms of Racial Discrimination (March 7, 1966)
· International Covenant on Civil and Political Rights (December 16, 1966)
· American Convention on Human Rights (November 22, 1969)
· Convention on the Elimination of All Forms of Discrimination Against Women (December 18, 1981)
· European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (Strasbourg November 26, 1987)
· Convention on the Rights of the Child (November 20, 1989)
· Draft Declaration on the Rights of Indigenous Peoples (1992)
· United Nations World Conference on Human Rights (Vienna, June 25, 1993)
· Draft Declaration of Principles on Human Rights and the Environment (1994)
· Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labor (entered into effect on November 19, 2000
· United Nations Convention against Transnational Organized Crime (December 15, 2000)
· Other international treaties, conventions and protocols concerning human rights issues.

International Law of the Sea: The resources and uses of the sea, and applicable international customs, treaties and principles. These include the following:

· Convention for the Establishment of a General Fisheries Council for the Mediterranean (Sept 24, 1949)
· International Convention for the High Seas Fisheries of the Pacific Ocean (May 9, 1952)
· International Convention for the Prevention of Pollution of the Sea by Oil May 12, 1954)
· Convention on the High Seas (April 29, 1958)
· North Atlantic Fisheries Convention (January 24, 1959)
· Convention Concerning Fishing in the Black Sea (July 7, 1959)
· Convention for the International Council for the Exploration of the Sea (September 17, 1964)
· International Convention on Civil Liability for Oil Pollution Damage (November 29, 1969)
· Treaty on the Prohibition of the Emplacement of Nuclear Weapons and Other Weapons of Mass Destruction on the Seabed and the Ocean Floor and in the Subsoil thereof (February 11, 1971)
· Kuwait Regional Convention for Co-Operation on the Protection of the Marine Environment from Pollution (April 24, 1978)
· Convention for the Conservation of Salmon in the North Atlantic Area (March 2, 1982)
· United Nations Convention on the Law of the Sea (December 19, 1982)
· Provisional Understanding Regarding Deep Seabed Mining (August 3, 1984)
· South Pacific Nuclear Free Zone Treaty (August 6, 1985)
· United Nations Convention on the law of the Non-Navigational Uses of International Watercourses (May 21, 1997)
· Other treaties, conventions and protocols for the protection of the Sea.

International Atmospheric and Space Law:
· Treaty Banning Nuclear Weapon Tests in the Atmosphere (August 5, 1963)
· Agreement on the Rescue of Astronauts, the Return of Astronauts (April 22, 1968)
· Convention on International Liability for Damage Caused by Space Objects (March 29, 1972)
· Convention on the International Maritime Satellite Organization, as amended in 1985
· Agreement Governing the Activities of States on the Moon and other Celestial Bodies (December 5, 1979)
· Vienna Convention for the Protection of the Ozone Layer (March 22, 1985)
· United Nations Framework Convention on Climate Change (May 9, 1992)
· Kyoto Protocol (December 1997)

International Law and the Protection of Culture. Includes the following:

· Convention for the Protection of Cultural Property in the Event of Armed Conflict (May 14, 1954)
· European Cultural Convention (December 19, 1954)
· European Convention on the Protection of the Archaeological Heritage (May 6, 1969)
· Convention on the Means of Prohibiting and Preventing the Illicit Import-Export and Transfer of Ownership of Cultural Property (November 14, 1970)
· Convention on the Protection of the Archaeological, Historical and Artistic Heritage of the American Nations (June 16, 1976)
· European Convention for the Protection of the Archaeological Heritage of Europe (January 16, 1992)
· Convention on Stolen or Illegally Exported Cultural Objects (June 24, 1995)
· Other treaties and conventions dealing with the protection of culture under international law.

International Law – Trade and Commercial Relation. Includes the following:

· General Agreement on Tariffs and Trade (1947) with the amendments through 1966 including the Final Act of the Uruguay Round via The World Trade Organization
· Treaty Establishing the European Community (Treaty of Rome) signed on March 25, 1957 with its subsequent amendments through the Treaty of Amsterdam, signed on October 2, 1997. The Maastricht Treaty, which established the European Union, singed on February 7, 1992 and took effect on November 1st, 1993. Treaty of Nice, signed on February 26, 2001, became effective on February 1st, 2003 and the Treaty Establishing a Constitution for Europe, which is being ratified by twenty-five Member States.
· Convention on the Organization for Economic Co-operation and Development (December 14, 1960)
· Paris Convention for the Protection of Industrial Property
· International Convention on Travel Contracts (Brussels, April 23, 1970)
· United Nations Convention on Contracts for the International Sale of Goods (April 11, 1980)
· Convention on International Bills of Exchange and International Promissory Notes (December 9, 1988)
· North American Free Trade Agreement (1993)
· Draft Model Law on Electronic Commerce - UNCITRAL, revised on June 14, 1996
· Multilateral Agreement on Investment (MAI) (1997)
· Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (December 17, 1997)

International Law – Intellectual Property: Includes the following:

· International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (October 26, 1961
· Berne Convention for the Protection of Literary & Artistic Works (Stockholm, July 14, 1967) and Paris, July 24, 1971
· Patent Cooperation Treaty (July 19, 1970)
· Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (November 14, 1970)
· Universal Copyright Convention Paris, July 24, 1971
· WIPO Copyright Treaty (December 20, 1996)
· Convention for the Protection of Producers of Phonograms against Unauthorized Duplication of their Phonograms (October 29, 1971)
· WIPO Performances and Phonograms Treaty (December 20, 1996)
· World Intellectual Property Organization-World Trade Organization: Agreement Between WIPO and WTO ( Geneva, December 22, 1995)
· World Intellectual Property Organization: Copyright Treaty (December 20, 1996)
· World Intellectual Property Organization: Performances and Phonograms Treaty (December 20, 1996)

International Law – Rules of Warfare and Arms Control. This includes the conventions and protocols signed between 1863 to June 17, 1925. It also includes the following:

· Convention on the Prevention and Punishment of Genocide (December 9, 1948)
· Geneva Convention I. For the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. (August 12, 1949)
· Geneva Convention II for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (August 12, 1949)
· Geneva Convention III Relative to the Treatment of Prisoners of War (August 12,1949)
· Geneva IV Relative to the Protection of Civilian Persons in Time of War (August 12,1949)
· Convention for the Protection of Cultural Property in the Event of Armed Conflicts (May 14, 1954)
· Treaty Banning Nuclear Weapon Tests in the Atmosphere (August 5, 1963)
· Treaty on the Non-Proliferation of Nuclear Weapons (July 1st, 1968)
· Treaty on the Prohibition of the Emplacement of Nuclear Weapons and other Weapons of Mass Destruction on the Seabed and the Ocean Floor and in the Subsoil thereof (February 11, 1971)
· Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction (April 10, 1972)
· Treaty Between the United States of America and the Union of Soviet Socialist Republics on the Limitation of Anti-ballistic Missile Systems (May 26, 1972) and Protocol (July 3, 1974)
· Convention on the Prohibition of Military or any Other Hostile Use of Environmental Modification Techniques (December 10, 1976)
· Protocol I: Additional to the Geneva Conventions of August 12, 1949, and relating to the protection of victims of international armed conflict (June 8, 1977)
· Protocol II: Additional to the Geneva Conventions of August 12, 1949, and relating to the protection of victims of non-international armed conflict (June 8, 1977)
· South Pacific Nuclear Free Zone Treaty (August 6, 1985)
· Treaty on Conventional Armed Forces in Europe (November 19, 1990)
· Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (January 13, 1993)
· Comprehensive Nuclear Test Ban Treaty (September 10, 1996)
· United Nations International Convention for the Suppression of Terrorist Bombings (January 12, 1998)
· More treaties and conventions dealing with arms control.

International Criminal Law: The United Nations Office on Drugs and Crime UNODC is responsible for crime prevention, criminal Justice and criminal law reform. It pays special attention to combating international organized crime, corruption and illicit trafficking in human beings. The General Assembly passed eleven resolutions at its 55th session. These are:

· UN Convention against Transnational Organized Crime (A/RES/55/25)
· Strengthening of the United Nations Crime Prevention and Criminal Justice Program, in particular its technical cooperation capacity (A/RES/55/64)
· Combating the Criminal Misuse of Information Technologies (A/RES/55/63)
· UN African Institute for the Prevention of Crime and Treatment of Offenders (A/RES/55/62)
· International Legal Instrument Against Corruption (A/RES/55/61)
· Follow-up to the 10th UN Congress on the Prevention of Crime and the Treatment of Offenders (A/RES/55/60)
· Vienna Declaration on Crime and Justice (A/RES/55/59)
· International Cooperation against the World Drug Problem (A/RES/55/65)
· Traffic in Women and Girls (A/RES/55/67
· Preventing and Combating Corrupt Practices and Illegal Transfer of Funds and Reparation of Such Funds to the Countries of Origin (A/RES/55/188)
· Protocol Against the Illicit Manufacturing of and Trafficking in Firearms, their Parts and Components and Ammunition, Supplementing the United Nations Convention Against Transnational Organized Crime (A/RES/55/255)

The UNODC has formulated and promoted internationally recognized principles in such areas as independence of the judiciary, protection of victims, alternatives to imprisonment, treatment of prisoners, police use of force, mutual legal assistance and extradition. More than 100 countries worldwide have relied on these standards in writing their national laws and policies in crime prevention and criminal justice.

International Law - Conventions Against Terrorism: there are twelve major multilateral conventions and protocols related to states’ responsibilities for combating terrorism, but many of those states have not yet implemented them. Besides, there are other instruments that are connected to terrorism among them:
· The 1961 Vienna Convention on Diplomatic Relations
· The 1963 Vienna Convention on Consular Relations
· UN Security Council and General Assembly Resolutions on international terrorism
· Convention on Offences and Certain Other Acts Committed on Board Aircraft (Tokyo, 1963)
· Convention for the Suppression of Unlawful Seizure of Aircraft (Hague, 1970)
· Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (Montreal, 1971)
· Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons. It outlaws attacks on senior government officials and diplomats (1973)
· International Convention Against Taking of Hostages (1979)
· Convention on the Physical Protection of Nuclear Material, it combats unlawful taking and use of nuclear material (1980)
· Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, it supplements the Convention for the Suppression of Unlawful Acts Against the Safety Aviation (1988)
· Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, it applies to terrorist activities on ships (1988)
· Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf, it applies to terrorist activities on fixed offshore platforms (1988)
· Convention on the Marking of Plastic Explosives for the purpose of Detection, it provides for chemical marking to facilitate detection of plastic explosives (1991)
· International Convention for the Suppression of Terrorist Bombing, UN General Assembly Resolution (1997)
· International Convention for the Suppression of the Financing of Terrorism (1999)

· International Law – Protection of nature: this includes international conventions held at the beginning of the twentieth century until 1994. It includes also the following:
· Agreements for the Establishment of a General Fisheries Council for the Mediterranean (September 24, 1949)
· International Convention for the Protection of Birds (October 18, 1950)
· International Convention for the Protection of New Varieties of Plants (December 2, 1978)
· International Convention for the Conservation of Atlantic Tuna (May 14, 1966)
· European Convention for the Protection of Animals During International Transport (December 13, 1968
· Convention on Wetlands of International Importance Especially as Waterfowl Habitat (February 2, 1971)
· Convention for the Conservation of Antarctic Seals (June 1, 1972)
· Convention on International Trade in Endangered Species of Wild Fauna and Flora (March 3, 1973)
· Agreement on the Conservation of Polar Bears (November 15, 1973)
· World Charter for Nature (1982)
· International Tropical Timber Agreement (November 18, 1983)
· Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (Sept 5, 2000)
· Convention on the Conservation and Management of Fishery Resources in the South East Atlantic Ocean (April 20, 2001)
· Other agreements, conventions and protocols dealing with the protection of nature under international law.

International Law – Diplomatic and Consular Relations:

· Vienna Convention on Diplomatic Relations (April 18, 1961)
· Vienna Convention on Consular Relations (April 24, 1963)
· Vienna Convention on the Law of Treaties (May 23, 1969)
· Vienna Convention on the Law of Treaties between States and International Organizations or Between International Organizations (March 21, 1986).

International Criminal Court: The purpose of the treaty is to try “individuals accused of committing genocide, war crimes and crimes against humanity”. Established by Rome Statute, UN Document 2187 (U.N.T.S. 90), entered into force on July 1, 2002.

References

Introduction to International law:
· Regulating Law, Christine Parker, 2004
· International Rules, Robert J. Beck, 1996
· Sustainable Development Law, Principles, Practices, and Prospects, Marie-Claire, 2005
· The British Year Book of International Law, Ian Brownlie, 1992
· Declining Jurisdiction in Private International Law, J.J. Fawcett, 1995
· International Law Documents, Malcolm Evans, 2003
· Public Law and Democracy in the United Kingdom and the United States of America, P.P. Craig, 1991
· Public Law, Adam Tomkins, 2003
· Basic Documents in International Law, Fifth ed., Ian Brownlie, 2002
· Essays in International Litigation and the Conflict of Laws, Lawrence Collins, 1994
· The Reality of International Law, Guy S. Goodwin-Gill, 2000
· Cases and Materials on International Law, 4th ed. Martin Dixon.

The UN Institutions:
· The Charter of the United Nations 2 vols. Second ed., Bruno Simma, 2002
· The United Nations and the Development of Collective Security, Danesh Sarooshi, 2000
· The United Nations System and its predecessors, Franz Knipping, 1998
· The Oxford 50th Anniversary Book of the United Nations, Charles Patterson, 1995
· The United Nations As a Political Institution Fifth ed. H.G. Nicholas, 1975

The European Union:
· The State of the European Union, Tanja A. Borzel, 2003
· Accountability and Legitimacy in the European Union, Anthony Amull, 2003
· The European Union and its Court of Justice, Athony Amull, 2000
· The European Union, A Very Short Introduction, John Pinder, 2001
· The Enlargement of the European Union, Marise Cremona, 2003
· The European Union, Economy, Society, and Polity, Andres Rodriguez-Pose, 2002
· European Union Law, 3rd ed. Margot Horspool, 2003
· Culture and European Union Law, Rachael Craufurd Smith, 2004

International Environment Law:
· International Law and the Environment, 2nd ed., P.W. Bimie, 2002
· International Law and Infectious Diseases, David P. Fidler, 1999
· Yearbook of International Environmental Law, Vol. 5, Gunther Handl, 1994
· International Law, Second ed., Antonio Cassese, 2005

International Law – Human Rights:
· The International Law of Human Rights, Paul Sieghart, 1984
· Impunity and Human Rights in International Law and Practice, Naomi Roht-Arriaza, 1995
· Remedies in International Human Rights Law, Dinah Shelton, 2001
· The Law of Human Rights, Richard Clayton, 2003
· International Human rights in context, Law Politics, Morals, second ed. Henry Steiner, 2000
· International Law, Human Rights, and Japanese Law, The Impact of International Law on Japanese Law, Yuji Iwasawa, 1999
· Migrant Workers in International Human Rights Law, Their Protection in Countries of Employment, Ryszard Cholewinski, 1997
· International Human Rights and Islamic Law, Mashood A. Baderin, 2003
· Accountability for Human Rights Atrocities in International Law, Neyond the Nuremberg Legacy, 2nd ed. Steven R. Ratner, 2001

International Law of the Sea:
· In Defense of Natural Law, Robert George, 2001
· Yearbook of International Environmental Law, Vol.8, Jutta Brunnee, 1997
· International Law and the Environment, second ed. P.W. Bimie, 2002
· The Law of International Watercourses, Non-Navigational Uses, Stephen C. McCaffrey, 2001

International Atmospheric and Space Law:
· Studies in International Space Law, Bin Cheng, 1998
· United Kingdom Materials on International Law 1975-2001, Geoffrey Marston. 2004
· International Law and the Environment, 2nd ed. P.W. Bimie, 2002
· International Law and Infectious Diseases, David P. Fidler, 1999

Other Reference Books
· Like Products in International Trade Law
· The Termination and Revision of Treaties in the lIght of New Customary International Law, Nancy Kontou, 1995
· Provisional Measures in International Law, The International Court of Justice and the International Tribunal for the Law of the Sea, Shabtai Rosenne, 2005
· International Law and the Use Of Force, 2nd. Ed. 2004
· Indigenous Peoples in International Law, 2nd ed., S. James Anaya
· International Criminal Law, Antonio Cassese, 2003
· Fairness in International Law and Institutions, Thomas M. Franck, 1998
· The American Tradition of International Law, Mark Weston Janis, 2004
· International Sale of Goods in the Conflict of Laws, James Fawcett, 2005
· Environment Damage in International Law 1999, Seventieth Year of Issue, Vol 70, James Crawford, 2001
· International Public Finance, Ruben P. Mendez, 1992
· Procedural Law in International Arbitration, Geogios Petrochilos, 2004
· The of the International Civil Service, As Applied by International Administrative Tribunals, Vol 1, 2nd revised ed., C.F. Amerasinghe, 1994
· International Monetary Law Mario Giovanoli, 2000
· The Workers of Nations, Industrial Relations in a Global Economy, Sanford M. Jacoby, 1995

© Copyright 2005 Gabriel Sawma. ALL RIGHTS RESERVED
For interviews on international law covered on this site, or for internviews about the Middle East or Islamic laws, please contact the author. Tel 609-275-6321; Email gabrielsawma@yahoo.com or Fax 609-275-0355.This website is researched, edited, published and maintained by Gabriel Sawma.

The materials contained on this website are for general information purposes only and are subject to disclaimer. The reader should not consider this information to be an invitation for an attorney-client relationship, should not rely on information provided herein and should always seek the advice of competent attorney.

Limitations on the Effectiveness of Trademark Laws in the EU

2005-04-03T07:47:00.000-07:00

Case Study – Trade Mark

The Council of the European Communities issued Directive 89/104/EEC, dated December 21, 1988, to approximate the laws of the Member States relating to Trade Marks (OJ EC No L 40 of 11.2.1989, p.1)

Article 6 of the Directive reads the following:

1. The trade mark shall not entitle the proprietor to prohibit a third party from using, in the course of trade,
a- His own name or address;
b- Indications concerning the kind, quality, quantity, intended purpose, value, geographical origin, the time of production of goods or of rendering of the service, or other characteristics of goods or services;
c- The trademark where it is necessary to indicate the intended purpose of a product or service, in particular as accessories or spare parts; provided he uses them in accordance with honest practices in industrial or commercial matters.
2. The trademark shall not entitle the proprietor to prohibit a third party from using, in the course of trade, an earlier right which only applies in a particular locality if that right is recognized by the laws of the Member State in question and within the limits of the territory in which it is recognized.

The European Court of Justice (Third Chamber) issued a preliminary ruling on March 17, 2005, (Case C-228/03, Gillette Company and Gillette Group Finland Oy v LA Laboratories Ltd., Oy), stating that the purpose of Article 6 of the Directive seeks to reconcile the fundamental interests of trademark protection with those of free movement of goods and freedom to provide services in the common market, in such a way that trademark rights are able to fulfill their essential role in the Community of undistorted competition which the Treaty seeks to establish and maintain.

Article 6 (1)(b) of the Directive provides that the proprietor of the trademark may not prohibit a third party from using, in the course of trade, the geographical origin of goods, provided the third party uses them in accordance with honest practices in industrial or commercial matters.

THE GILLETTE COMPANY AND GILLETTE GROUP FINLAND OY
V
LA – LABORATORIES LTD OY
Case-228/03

Gillette and Sensor, a registered trademark in Finland, for hand tools and implements (hand-operated) cutlery, side arms, razors and products were sold through its exclusive licensee in Finland.

LA-Laboratories also sells, razors in Finland, they are composed of handles and replaceable blades, and blades similar to those marked by Gillette Group, Finland. LA Laboratories Sell those blades under the mark Parason Flexor and their packaging have stickers fixed on them with the words “All Parason Flexor and Gillette Sensor handles are compatible with this blade”.

LA-Laboratories had no authorization, by a trademark license or any contract to use the trademarks of Gillette.

Gillette brought up an action before the Court of First Instance of Helsinki for trademark infringement, arguing that LA-Laboratories created a link in the mind of consumers between the products marketed by the latter and those of the Gillette companies, or gave the false impression that LA-Laboratories was authorized, by virtue of a license or for another reason, to use Gillette and Sensor marks

In its judgment on March 30, 2000, the Court of First Instance in Finland held that, the Gillette Companies held the exclusion right to affix the Gillette and Sensor marks to their products and their packaging, and to use these marks in advertising, therefore, by mentioning those marks in an eye-catching manner on the packaging of its product, LA-Laboratories had infringed that exclusive right. The Court of First Instance in Finland further held, that Article 4(2) of the Finnish trademark law, which provided for an exception to that principle of exclusivity, must be interpreted narrowly in the light of Article 6(1)(c) of Directive 89/104. In its view, that provision does not relate to the essential parts of a product but only to spare parts, accessories and other similar parts, which are compatible with the manufactured product or marketed by another person. The court held that, both, the handle and the blade were both parts of the razor and not spare parts or accessories, on these grounds, the court decided to prohibit LA-Laboratories from pursuing or renewing the infringement of the Gillette Companies’ rights over the Gillette and Sensor marks, and ordered that company to remove and destroy the stickers used in Finland and to pay the Gillette Companies for damages.

LA-Laboratories appealed to the Court of Appeal in Hilsinki. The Court held that, both of the handle and the blade were to be regarded as essential parts of the razor and not as spare parts or accessories. The razor was composed of a handle and a blade; the consumer could replace the blade by a new one, sold separately. The latter, being a substitution for a former part of the razor, could therefore be regarded as a spare part within the meaning of Article 4(2) of the Finnish Trademark Law (tavaramerkkilaki).

Article 4 of that law provides:

1-“The right under Articles 1 and 3 of this law affix a distinctive sign on one’s goods means that no one other than the proprietor of the sign may, in the course of trade, uses as a sign for his products references which could create confusion, whether on the goods or their packaging, in advertising or business documents or otherwise, including by word of mouth…

2-It is regarded as unauthorized use for the purposes of the first paragraph inter alia if a person, when putting on the market spare parts, accessories or the like which are suited to a third party’s products, refers to that party’s sign in a manner that is liable to create the impression that the product put on the market originates from the proprietor of the sign or that the proprietor has agreed to the use of the sign.”

Secondly, the Court of Appeal held that “the indication on the sticker affixed to the packaging of the razor blades marketed by LA-Laboratories, to the effect that, besides being compatible with handles of the Parason Flexor type, those blades were also compatible with handles marketed by Gillette Companies, could be useful to the consumer and that LA-Laboratories might therefore be able to demonstrate the need to mention the Gillette and Sensor trademarks on the sticker.”

Thirdly, the packaging of razor blades marketed by LA-Laboratories clearly bore its own Parason and Flexor signs, unequivocally indicating the origin of the product. The reference to the Gillette and Sensor marks in small standard lettering on stickers of a relatively modest size affixed to the exterior of that packaging “could not in any way have given the impression that there was a commercial connection between the Gillette Companies and LA-Laboratories, and that the latter had therefore referred to those marks in circumstances allowed by Article 4(2)” of the Finnish Trademark Law. The Court of Appeal therefore annulled the judgment of the lower court and dismissed the action brought by Gillette Companies.

Gillette then appealed to the Korkein Oikeus, a higher court, which took the view that the case raised questions as to the interpretation of Article 6(1)(c) ofDirective 89/104 in relation to the criteria for determining whether, by its nature, a product is or is not compatable to a spare part or an accessory, in relation to the requirement that use of a mark belonging to another person must be necessary in order to indicate the intended purpose of a product, and in relation to the concept of honest practices in industrial or commercial matters, the interpretation of those provisions also having to take account of Directive 84/450.

The Korkein Oikeus decided to stay the proceedings and refer the following question to the Court of Justice for preliminary ruling:

“When applying Article 6(1)(c ) of the First Council Directive 89/104EEC to approximate the laws of the Member States relating to trademarks:,

1) What are the criteria?

a) On the basis of which the question of regarding a product as a spare part or accessory is to be decided, and
b) On the basis of which those products to be regarded as other than spare parts and accessories, which can also fall within the scope of the said subparagraph, are to be determined?
2) Is the permissibility of the use of a third party’s trademark to be assessed differently, depending on whether the product is like a spare part or accessory or whether it is a product which can fall within the scope of the said subparagraph on another basis?

3) How should the requirement that the use must be “necessary” to indicate the intended purpose of a product be interpreted? Can the criterion of necessity be satisfied even though if would in itself be possible to state the intended purpose without an express reference to the third party’s trademark, by merely mentioning only for instance the technical principle of functioning of the product> What significance does it have in that case that the statement may be more difficult for consumers to understand if there is no express reference to the third party’s trade mark?

4) What factors should be taken into account when assessing use in a accordance with honest commercial practice? Does mentioning a third party’s trademark in connection with the marketing of one’s own product constitute a reference to the fact that the marketer’s own product corresponds, in quality and technically or as regards its other properties, to the product designated by a third party’s trademark?

5) Does it affect the permissibility of the use of a third party’s trademark that the economic operator who refers to the third party’s trademark also markets, in addition to a spare part or accessory, a product of his own with which that spare part or accessory is intended to be used with?”

The Ruling

In answer to those questions, the European Court of Justice (Third Chamber) ruled as Follows:

1. The lawfulness or otherwise of the use of the trademark under Article 8(1)(c) of the First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trademarks depends on whether that use is necessary to indicate the intended purpose of a product

Use of the trademark by a third party who is not owner is necessary in order to indicate the intended purpose of a product marketed by that third party where such use in practice constitutes the only means of providing the public with comprehensible and complete information on that intended purpose in order to preserve the undistorted system of competition in the market for that product. It is for the national court to determine whether, in the case in the main proceedings, such use is necessary, taking account of the nature of the public for which the product marketed by the third party in question is intended. Since Article 6(1)(c) of Directive 89/104 makes no distinction between the possible intended purposes of products when assessing the lawfulness of the use of the trademark. The criteria for assessing the lawfulness of the use of the trademark with accessories or spare parts in particular are yhus no different from those applicable to other categories of possible intended purposes for the products.
2. the condition of “honest use” within the meaning of Article 6(1)(c) of Directive 89/104 constitutes in substance the expression of a duty to act fairly in relation to the legitimate interests of the trademark owner. The use of the trade mark will not be in accordance with honest practices in industrial and commercial matters if, for example:

· It is done in such a manner as to give the impression that there is a commercial connection between the third party and the trade mark owner;
· It affects the value of the trademark by taking unfair advantage of it distinctive character or repute;
· It entails the discrediting or denigration of that mark;
· Or where the third party presents its product as an imitation or replica of the product bearing the trademark of which it is not the owner.

The fact that a third party uses a trademark of which it is not the owner in order to indicate the intended purpose of the product which it markets does not necessarily mean that it is presenting it as being of the same quality as, or having equivalent properties to, those of the product bearing the trademark. Whether there has been such presentation depends on the facts of the case, and it is for the referring court to determine whether it has taken place be reference to the circumstances. Whether the product marketed by the third party has been presented as being of the same quality as, or having equivalent properties to, the product whose trademark is being used is a factor which the referring court must take into consideration when it verifies that that use is made in accordance with honest practices in industrial commercial matters.

2. Where a third party that uses a trademark of which it is not the owner markets not only a spare part or an accessory but also the product itself with which spare part or accessory is intended to be used, such use falls within the scope of Article 6(1)(c) of Directive 89/104 in so far as it is necessary to indicate the intended purpose of the product marketed by the latter and is made in accordance with honest practices in industrial and commercial matters.

[Signatures]

copyright 2005 Gabriel Sawma.ALL RIGHTS RESERVED
For interviews on international law covered on this site, or for interviews about the Middle East or Islamic laws, please contact the author. Tel. 609-275-6321; Email gabrielsawma@yahoo.com or fax 609-275-0355. This website is researched, edited, published and maintained by Gabriel Sawma.

DISCALIMER: The materials contained on this website are for general purposes only and are subject to disclaimer. The reader should not consider this information to be an invitation for an attorney-client relationship, should not rely on information provided herein and should always seek the advice of competent counsel.

The Institutions of the EU- The Commission

2005-03-30T10:13:00.000-08:00

The Institutions of the European Union

4- The Commission

The Commission is one of the most important organs of the EU institutions. It has for main tasks

1-Legislative initiatives

The Commission initiates proposals for new European Union legislation, and presents them to the European Parliament and Council. The legislative initiatives must be centered on the interests of the Union and its citizens, not of the Member States.

Before the Commission’s proposals are submitted, it must consult and seek opinions of the Economic and Social Committee, which is made up of representatives of employers and trade unions, and the Committee of the Regions, made up of representatives of local and regional authorities. It also seeks the opinions of Member States’ institutions such as parliaments and other branches of national organs.

The Commission suggests proposals at the EU level only if it believes there is no other solution on national levels.

2- administration

The Commission manages and implements the budget of the European Union and make sure that the policies and programs adopted by the Parliament and the Council are implemented. It has the power to enact legislation derived from the Treaties or EU legislation. All of these are subject to judicial review by the European Judiciary.

The role of the Commission involves supervision and monitor of transport, justice, freedom and security, audit and anti-fraud, cartel, enterprise and industry, international relations and communications strategy, economic and monetary affairs, fisheries and maritime. Environment, external relation, education, culture, agriculture and rural development, financial programs and budget, taxation and customs Union, completion, health and consumer protection, internal market and services, trade, development and humanitarian aid, energy, science and research, information and media, enlargemt, employment, social affairs and equal opportunity.

3- enforcement

The role of the Commission is to be “guardian of the Treaties”, and this implies that it is responsible for seeing EU law is properly applied in the Union. It has the power and the authority to start a legal proceeding against any Member State before the European Court of Justice, for violations of European Union law. The decision of the EU Court of Justice is binding.
4- External Affairs

In matters related to the European Union’s external affairs, the Commission negotiates with foreign governments and not Member States.

The Composition of the Commission

The number of members of the Commission stands now at twenty-five, one commissioner per Member State. They don not, however, represent their states, they are supposed to be acting on the general interest of the European Union as a whole.

The European Council chooses the President of the Commission for a term of five years. The list of the Commissioners is presented to the European Parliament for confirmation hearings, followed by voting to approve or reject the candidates. Once approved by the Parliament, the candidates serve for a term of five years.

Gabriel Sawma

Copyright 2005, Gabriel Sawma. ALL RIGHTS RESERVED.
The materials contained on this website are for general purposes only and are subject to disclaimer. The reader should not consider this information to be an invitation for an attorney-client relationship, should not rely on information provided herein and should always seek the advice of competent counsel.

The EU Institutions 3- The Council of the European Union

2005-03-29T14:39:00.000-08:00

3- The Council of the European Union

Also known as the Council of Ministers, primarily responsible for legislative decision-making process. Its composition includes government ministers from each of the twenty-five Member States of the European Union. Its responsibility includes foreign affairs, Meetings at the Council, are attended by ministers responsible for the subject matter under discussion, for instance ministers of transportation attend sessions dealing with transportation, foreign ministers attend the meetings where discussions on foreign policy take place.

The meetings of ministers are conducted once a month or less, however, the Committee of Permanent Representatives (CREPER) meets weekly to coordinate the relevant work and to prepare for the meetings to come. The President of the Council is headed by each Member State on rotation, for a period of six months.

The Council of the European Union is responsible for the adoption of most legislation, after it has been proposed by the Commission and amended by the Parliament. On international agreements involving the EU, the Council has a final word. It oversees the execution of the Common and Security Policy (CFSP). It coordinates the general economic policies of Member States and together with the European Parliament, it forms prepares the budget.

The Council of the European Union issues regulations, which are implemented and binding across the Union, and directives, which do not have the same binding effect, but needed to be acted upon by Member States legislation. It also issues decisions, which have direct effect on individuals, organizations, or Member States, to which they are addressed, and recommendations and opinions, which are not binding.

A qualified majority voting is employed the Council of the European Union for some decisions. Under that rule, a fixed number of votes must gain a minimum of about 71% in order to adopt a resolution. The following voting system is being used:

Country Votes Population
(Millions)

Germany 10 82.0
United Kingdom 10 59.4
France 10 59.1
Italy 10 57.7
Spain 8 39.4
Poland 8 38.6
Netherlands 5 15.8
Greece 5 10.6
Czech Republic 5 10.3
Belgium 5 10.2
Hungary 5 10.0
Portugal 5 9.9
Sweden 4 8.9
Austria 4 8.1
Slovakia 3 5.4
Denmark 3 5.3
Finland 3 5.2
Ireland 3 3.7
Lithuania 3 3.7
Latvia 3 2.4
Slovenia 3 2.0
Estonia 3 1.4
Cyprus 2 0.8
Luxemburg 2 0.4
Malta 2 0.4

Total votes 124

Blocking votes 37

Qualified majority 88

Under The Draft Treaty Establishing a Constitution for Europe, which is undergoing ratification by Member States, the qualified majority voting will be simplified. Article 24(1) requires the majority of Member States representing at least three-fifths of the population of the Union. Paragraph 2 of the same Article reads the following:

“When the Constitution does not require the European Council or the Council of Ministers to act on the basis of a proposal of the Commission, or when the European Council or the Council of Ministers is not acting on the initiative of the Union Minister of Foreign Affairs, the required qualified majority shall consist of two thirds of the Member States, representing at least three fifths of the population of the Union.”

The proposal under the new Constitution, takes effect on November 1st, 2009.

Gabriel Sawma

Copyright 2005, Gabriel Sawma. ALL RIGHTS RESERVED.

The EU Institutions 2- The European Council

2005-03-29T11:44:00.000-08:00

2- The European Council

The Draft Treaty establishing a Constitution for Europe distinguishes the European Council from the Council of Ministers. Previous treaties did not draw such a distinction.

The European Council was established in a summit in Paris in 1974. The first meeting was held in Dublin between March 10 and 11, 1975. It consists of the Heads of State or government of Member States of the European Union, the foreign ministers and the President of the Commission. Its General Secretariat assists the Council. The Secretary General acts as High Representative for the common foreign and security policy.

The European Council should not be confused with the Council of Europe, which is not an EU body, but an international organization whose goal is the protection of human rights and democracy as well as the development of European cultural identity and diversity, nor with the Council of the European Union, which is made up of Ministers representing the Member States of the European Union, which shares legislative power jointly with the European Parliament.

Since its inception, the European Council developed a major important role in the decision making process of the European Union, although the description of its role in Article 4 of the Treaty on European Union (TEU) which was signed at Maastricht on June 7,1992 and became effective on November 1st, 1993, does not correspond to what it has been doing for many years.

It meets as least twice a year, each Member State holds the chair for six months, and its major role is to “give impetus” to the needs of the European Union in order to develop further and define general policy guidelines. Throughout the last thirty years, the European Council had played a major role in the areas of agriculture, commercial policy, competition, and free movement of goods, persons, services and capital. Its authority had extended to include international agreements. It also functions in the budgetary process in conjunction with the Parliament and the Commission.

A qualified majority is required to pass a resolution at the European Council. When the number of Member States in the European United was 15, the qualified majority required 62 votes out of 87 (71%). Votes were weighted in proportion to the size of population

Qualified majority voting requires all Member State’s votes be cast as one bloc. In May 1st, 2004, ten more countries joined the Union, these are: Cyprus (Greek part), the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia, bringing the total Member States of the European Union to twenty five. Accordingly,
Beginning on January 1st, 2004 until October 2009, the qualified majority will be reached if the following conditions are met:

1- If a majority of Member States approve a bill, in some cases a two-third majority is required;
2- A minimum of 232 votes is cast in favor of the proposal, i.e. 72.3%.

The distribution of votes per each Member States is as following:

Belgium 12
Czech Republic 12
Denmark 7
Germany 29
Estonia 4
Greece 12
Spain 27
France 29
Ireland 7
Italy 29
Cyprus 4
Latvia 4
Lithuania 7
Luxemburg 4
Hungary 12
Malta 3
Netherlands 13
Austria 10
Poland 27
Portugal 12
Slovenia 4
Slovakia 7
Finland 7
Sweden 10
United Kingdom 29

There shall be a minimum of 232 votes in favor of an act, representing a majority of Member States when acting on proposal from the Commission. In other cases, there shall be at least 232 votes in favor, representing at a minimum of two-thirds of Member States.

Public access to the records of the European Council is allowed. The Treaty of Amsterdam, signed on October 2nd, 1997 and entered into effect on July 1, 1999 has laid down the principles governing access to documents. This means, the results and explanations of votes and statements entered in the minutes are available to the general public.

Gabriel Sawma

Copyright 2005, Gabriel Sawma. ALL RIGHTS RESERVED.

The Institutions of the EU 1- The Parliament

2005-03-25T20:10:00.000-08:00

The European Union Parliament

Article 19 of the Draft Treaty Establishing a Constitution for Europe place the parliament at the beginning of the list of the European Union’s institutions. Paragraph 1 of the Article gives the Parliament three important functions:

1- “The European Parliament Shall, jointly with the Council of Ministers, enact legislation, and exercise the budgetary function, as well as functions of political control and consultation as laid down in the Constitution. It shall elect the President of the European Commission.”

This means that the Parliament exercises a role of supervision over the Commission by appointing its President. This makes the Commission responsible towards the Parliament. In 1999, members of the Commission along with the President of that body, Jacque Santer had to resign under pressure from the Parliament, a process known as “motion of censure.”

The Commission submits reports to the Parliament, including implementation of the budget, application of Community law and other host of reports that deal with other subjects. Members of the Parliament have the right to submit questions to the Commission; some of the questions may be asked orally or in a written form, the Commission has responsibility to respond to these questions.

Various committees in the Parliament may request the Commission to be present at hearing, thus maintain dialogue between the two institutions.

The Constitution gives the right to the Parliament to monitor the work of the Council and members of the Parliament frequently ask questions to the Council. The President of the Council attends sessions held in the Parliament and takes part in the debate dealing with important issues.

In the past, a close relationship had been established between the Parliament and the Council in the area of foreign policy, security matters, and judicial subject as well as issues dealing with immigration, combating drug abuse, fraud and international crime. The President of the Council keeps the Parliament informed on these and other subjects on a regular basis.

The Parliament has the constitutional authority to legislate, together with the Council. The Commission proposes and the Parliament formulates and adopts legislation. Each institution must agree on the same text, this places both, the Parliament and the Council, on the same footings and leads to the adoption of a joint, Parliament and Council legislation. In cases where disagreements arise, a committee of conciliation representing the Parliament, the Council and the Commission is established to find a compromise solution.

This process has been successful in passing laws in many areas such as the free movement of workers, creation of the internal and single market, research and development in technology, the environment, consumer protection, education, and health.

In addition, the Parliament gives its approval on matters of importance to the Union such as the accession of new states, association agreement with countries outside the Union, the conclusion of international agreement between the Union and other countries, the right of residence in the European Union, citizenship and the matters related to the European Central Bank.

2- “The European Parliament shall be elected by direct universal suffrage of European citizens in free and secret ballot for a term of five years. Its members shall not exceed seven hundred and thirty-six in number. Representation of European citizens shall be digressively proportional, and with a minimum threshold of four members per Member State.

Sufficiently in advance of the European Parliamentary elections in 2009, and, as necessary thereafter for further elections, the European Council shall adopt by unanimity, on the basis of a proposal from the European Parliament and with its consent, a decision establishing the composition of the European Parliament, respecting the principles set out above.”

The European Parliament meets in France, Belgium and Luxembourg. Voting on directives issued by the Commission (plenary sessions) is held in Strasbourg, the seat of the Parliament. Committees of the Parliament are held in Brussels. The Secretariat is in Luxembourg.

Members of Parliament are elected every five years, the last election was held in June 2004. The next election will be in 2009.

3- “The European Parliament shall elect its President and its officers from among its members.”

Gabriel Sawma

Copyright 2005, Gabriel Sawma. ALL RIGHTS RESERVED

Disretionary and Mandatory References

2005-03-24T10:23:00.000-08:00

1- Discretionary Reference:

Article 234 (ex 177) suggests that any court or tribunal can make a reference to the European Court of Justice, it reads the following:

“The Court Of Justice shall have jurisdiction to give preliminary rulings concerning:

a- The interpretation of this Treaty;
b- The validity and interpretation of acts of the institutions of the community and of the ECB;
c- The interpretation of the statutes of bodies established by an act of the Council, where those statutes so provide.

Where such a question is raised before any court or tribunal of a Member, the Court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon.

Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice.”

The example given in the previous chapter on how a lower court may seek a reference is based on the principle that if the lower court decides against seeking a preliminary ruling, it is still possible for the appellate court to seek a reference. However, if the Community law is still an issue, and the case has been already appealed, the lower court has discretion to seek a preliminary ruling without interference from a higher court.

In 1996, the European Court of Justice issued Notes for Guidance to National Courts for Preliminary Rulings. (See Penelope Kent, European Union Law, Nutcases, 3rd ed. P.69.

In Bulmer v Bollinger (1974 CA, Lord Denning of Great Britain laid down guidelines for discretionary referrals, he said:

· “Article 234 references should be made only if a ruling by the European Court is necessary to enable the English court to give judgment in the case.
· “Necessary” means that the ruling would be conclusive in the case; if other matters remain to be decided then the ruling would not be considered “necessary”.
Also:
· There is no need to refer a question, which has already been decided by the European Court of Justice in a previous case.
· There is no need to refer a point which is reasonably clear and free from doubt; this is known as the ‘acte clair’ doctrine.

The court must consider all the circumstances of the case, especially:

· The length of time, which may elapse before a ruling, is made; the delay may cause injustice in an urgent case, and it takes about 18 months to get a ruling.
· The possible overloading of the European Court of Justice, which in turn will cause more delay.
· The difficulty and importance of the case.
· The expense, which will be involved.
· The wishes of the parties; it must be noted that the situation is different to an appeal in that the parties cannot make a reference themselves; it is the court which makes the reference.
· That the English court retains the discretion on whether to refer or not.”

2- Mandatory References:

These are referrals, which have to be made, because the appeal process has run out within Member State’s judicial system.

Article 234(3) reads:

“Where any such question is raised in a case pending before a court or tribunal of a member state against whose decisions there is no judicial remedy under nation law, that court or tribunal shall bring the matter before the Court of Justice.”

In 1982 the European Court of Justice issued a ruling stemmed from a claim by several Italian textile firms that a health inspection levy on import of wool violated a 1968 Community agricultural regulation. (See SrL Clifit v Ministry of Health, Case 283/81) 1982 ECR 3415. In section 11 of the ruling the Court said:

“If, however, those courts or tribunals consider recourse to Community law is necessary to enable them to decide a case, Article 177 (now 234) imposes an obligation on them to refer to the Court of Justice any question of interpretation which may arise.”

For more information on this subject, read: P. Pescatore, References for Preliminary Rulings under Article 177 EC, 1986; George A. Bermann, Roger J. Goebel, William J. Davey, Eleanor M. Fox, Cases and Materials on European Community Law, American Casebook Series, West Group.

Gabriel Sawma

Copyright 2005 Gabriel Sawma. ALL RIGHTS RESERVED

Preliminary Reference and Preliminary Ruling

2005-03-23T12:12:00.000-08:00

Member State court or tribunal may submit a request "Preliminary Reference" to the ECJ to render a judgment “Preliminary Ruling” on issues that confront them whenever an application of EU Treaty is involved. The ECJ ruling enables national courts to render an authoritative decision on the interpretation and validity of Community law. This follows the fact that Member State body enforces Community law.

Preliminary rulings of the Court of Justice provide an opportunity to develop Community law. Individuals as well as Member State courts may request a preliminary ruling. It enables national courts to apply Community law to the cases to be decided upon. The ECJ makes its views on the matter clear and unambiguous.

National courts are bound to follow preliminary rulings of the Court of Justice. The rulings are binding throughout the the European Union. The advantage of this process lies in the fact that it promotes legal unity and certainty. However, the ECJ held in Da Costa en Schake N.V. v Nederlandse that no national court may be deprived of the opportunity to refer a provision that has already been interpreted. (See the same reference, (Case 28-30/62) 1963.

In principle, the Court of Justice may decline to examine the motives behind the preliminary reference submitted by national courts. It may not answer all questions raised by the reference. (See Tedeschi v Denakvit. Case 5/77, ECR 1555, 1574) 1977.

Under Art. 234 (Ex 177) of the EEC Treaty, only “court or tribunal” of a member state may initiate a preliminary reference to the Court of Justice. The Court, however, expanded the scope of this limitation by allowing entities whose members may not be judges, provided that those entities have the power to adjucate disputes. The Court for example has treated as “tribunals”, boards of tariff, customs, social security, immigration and tax appeal. (See Rheinmuhle-Dusserdorf v Einfuhr-und Vorratsstell Ge Treide – joined Cases 146 and 166/73) 1974.

The case stems from a German court decision to deny Rheinmuhlen an export rebate for cereal. He appealed to the Federal Tax Court, a higher court, which ruled in his favor, holding that he was entitled to a rebate, and sent back the case to the lower court. The lower court refused to abide by the decision of the Federal Tax Court and referred the matter to the European Court of Justice, which held that the power of a lower court to make a preliminary reference is appropriate.

Preliminary references are allowed under Art.234 of the EC Treaty, provided certain criteria are met:
· The interpretation of the EC Treaty;
· The interpretation of the EC institutions and the European Central Bank;
· The interpretation of statutes of the bodies established by an act of the Council, where those statutes so provide

The Court of the First Instance is given the right to request a preliminary reference for the purpose of consistency and unity of the law being affected.

The next chapter deals with types of preliminary references.

Gabriel Sawma

Copyright 2005, Gabriel Sawma. ALL RIGHTS RESERVED.

.

Supremacy of the European Union Law

2005-03-22T20:01:00.000-08:00

The EC Treaty is considered an integral part of the legal system of the Member States. Such a status implies that the Treaty is applied in the court system of each Member States.

Art. 5 of the Treaty requires Member States to “take all appropriate measures to ensure fulfillment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community. They shall facilitate the achievement of the Community’s tasks”. Member States “shall abstain from any measure which could jeopardize the attainment of the objectives of this Treaty.”

The Court of Justice (ECJ) has a jurisdiction on such matters. In the Costa v Enel (Case 6/64) 1964, the ECJ ruled that there is a “permanent limitation” of sovereign rights for Member States.

In 1962, the Italian government passed a law to nationalize the Electricity industry. The law created Nazional Energia Electrico (ENEL). Costa, a citizen, refused to pay his electric bill, on the basis that the new law violated the Italian Constitution and the EEC Treaty.

The Italian Constitution Court ruled that the Treaty was a subordinate to any Italian legislation. The ECJ addressed that issue by affirming that such an action by the Italian court would jeopardize the attainment of the objectives of the Treaty set out in Article 5(2) and causes discrimination, which prohibited by Art. 7.

Art. 189 of the Treaty give precedence to Community law. Regulations issued by Community institutions for example are “binding” and “directly applicable in all Member States.

In 1998 ruling, the ECJ held that a national law adopted after an EC law with which it is incompatible, the national law should be regarded as non-existent. (See Simmenthal in Ministero della Finanze v In. Co. Ge., Case C-10-22/97.) The ECJ considers the effect of EC law as creating a “new legal order.”

For further reading on this subject, see D. Curtin, Directives: The Effectiveness of Judicial Protection of Individual Rights, 27 Common Market L. Review 709 (1990). See also D. Wyatt, New Legal Order, or Old?, 7 Eur. L. Rev. 147 (1982.)

Gabriel Sawma

Copyright 2005 Gabriel Sawma. ALL RIGHTS RESERVED

Grounds for Judicial Review 4- Misuse of Power

2005-03-20T17:44:00.000-08:00

This principle of law occurs when the authority issues an act for purposes other than those for which it was intended.

Misuse of power requires the investigation into the motives or purposes behind the acts. Giuffrida applied for a job in a Directorate General for regional policy. The Council instead, hired Emilio Martino for the Job. To qualify Emilio Martino, the Council established unusual qualifications designed for the sole purpose of hiring him. By doing so the Council made it impossible for Giuffrida to be qualified for the job.

Giuffrida brought a suit alleging the competition was not genuine. He argued that the post had been reserved in advance for Martino.

The ECJ concluded in it ruling that the pursuit of such a specific objective is contrary to the aims of any recruitment procedure including internal competition procedure, and thus constitutes a misuse of power. The court annulled the appointment.(See Giuffrida v Council, Case 105/75.) 1976.

Gabriel Sawma

Copyright 2005. ALL RIGHTS RESERVED.

Grounds for Judicial Review 3 - Violation to a Key Principle of EC Law

2005-03-19T15:34:00.000-08:00

The ECJ regards violations by Community institutions to a general principle from the domestic law of Member States, or to any general principle of international laws or in the general principles recognised by the EC Treaty as null.

Transocean Marine Paint Association sued the EC Commission because the latter issued a measure in relation to the renewal of an exemption from the competition rules policy which provide an opportunity for the members of the Association to be heard. The Association argued that the measure should be annulled because it had been denied a hearing.

The ECJ held that a person whose interests are affected by a decision taken by a public authority such as the Commission, must have the opportunity to submit his observations. The offending part of the measure was annulled. (See Transocean Marine Paint Association v EC Commission, Case 17/74), 1974.

Gabriel Sawma

Copyright 2005. ALL RIGHTS RESERVED.

Grounds for Judicial Review 2-Violation to procedures

2005-03-17T09:56:00.000-08:00

A measure may be challenged under Art.230 if an essential procedural requirement is infringed.

In March 1979, the Council sent the European Parliament a draft regulation, to fix a quota for isoglucose producers, for consultation. The Council requested the Parliament its openion to be received by April, so that the measure could be adopted by July of that year. The measure was adopted by the Council in June 1979 without the consent of the Parliament. As aresult a group of isoglucose producers challenged the regulation on the basis of Art 43(2) of the Treaty which considers the consultation as an essential procedural requirement.

The ECJ held that failure to consult the European Parliament, as required under Art. 43(2) of the Treaty, was a breach of an essential procedural requirement. The regulation was annulled (See Roquette Freres S.A. v Council, Case 138/79) 1980.

Gabriel Sawma

Copyright 2005. ALL RIGHTS RESERVED.

Grounds for Judicial Review I-Lack of Competence

2005-03-16T12:28:00.000-08:00

The Court of Justice may review challenges to Community acts on four grounds:

1- Lack of competence;
2 Violations to procedures set out by the EEC Treaty;
3- Violations of an act to principle law;
4- Misuse of power.

1- LACK OF COMPETENCE

An act of Community institution may be challenged under Art. 230 on grounds of lack of competence(see for example, Germany v EP and Coucil, Case C-367/98.) The Tobacco Advertising case, in which ECJ annulled a decision by the Commission's lack of competence to impose a general ban on tobacco advertising under Art. 95 (ex Art.100, 47(2) (ex 57(2) and 55 (ex66), EEC Treaty.

Complaints for failure to Act

2005-02-14T14:38:00.000-08:00

Art. 175 of the EEC Treaty deals with complaints against Community institutions for failure to act. Failure to fulfill a duty by such institution can be harmful. Community institutions and Member States are entitled to bring an action in the Court of Justice against the Commission or the Council for failure to act in violation of EEC Treaty obligations.

Private individuals have standing to sue under article 175 provided the duty to act was owed to them (see Case 246/81, Lord Bethell v. Commission.) In later articles, I'll elaborate more on cases brought before the Court of Justice.

Art. 175 requires that complainant should first notify the defendant institution to "define its position." Failure to respond, or complainant is dissatisfied with the answer given by the institution, has two months to sue for inaction.

Articles 173 and 175 allow complainant to file a challenge to an act taken by Community institutions, provided the complainant "must be in a position to establish either that he is the addressee of a measure of the Commission having specific legal effects with regard to him, which is, as such, capable of being declared void, or that the Commission, having been duly called upon to act in persuance of the second paragraph of Art. 175, has failed to adopt in relation to him a measure which he was legally entitled to claim by virtue of the rules of Community law. (See Case 246/21 Lord Bethell v. Commission 1982.)

Art. 184 of the EEC Treaty allows, in the course of other proceeding brought up to the Court of Justice, an indirect challenge to a regulation even after the time limitation has expired under Art. 173 on the basis of "illegal" exception. Accordingly, the complainant seeks the annulment of a directive because it is illegal.

Gabriel Sawma

Copyright 2005-ALL RIGHTS RESERVED

Challenging Community Acts

2005-02-02T16:20:00.000-08:00

Article 177 of the EEC Treaty gives the Court of Justice competence to issue rulings on the interpretation of the Treaty. It also gives the Court the right to give validity meaning of the Community acts when a national court of Member State requests that. Under Art. 177, a national court may request from the ECJ a "preliminary reference" or "referral". The judgement of the ECJ renders as "preliminary rulings."

Such a review of Community acts by the ECJ constitutes an important protection against abuses of authority by the Community institutions.

According to Art. 173,"any natural or legal person may, under the same conditions" as set out in paragraph 1, institute procedings against a decision addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and indvidual concern to the former.

The Court of Justice may declare the acts of Community institutions as void according to Art. 174. In such a case, Article 176 suggests that the institution must "take the necessary measures to comply with the judgement of the Court."

There is a time limitation on challenging an act before the ECJ, usually two months from the date of publication or notification. However, a Community act may always be brought as incidental issue in litigation before Member State courts according to Art. 177, long after the Art.173 limitation period has passed.

Gabriel Sawma

Copyright 2005-ALL RIGHTS RESERVED

The Harmonization of Legislation

2005-01-30T09:15:00.000-08:00

Harmonization of laws is a process whose purpose is to enact into laws by Member States to conform with the principles set out by the Community legislation.

Community acts such as directives may require Member States to adopt new laws or regulations, or to amend existing ones by a certain deadline for implementation to be compatible with the comon market.

Harmonization has a direct effect on the establishing of a functioning common market. The scope of that process includes the attainment of the "four freedoms," i.e., the free movement of goods, persons, services and capital. It also includes agriculture, transport, social affairs and the protection of competition.

Directives aiming at harmonization cover many sectors including environmental protection, motor vehicles such as brakes, doors, headlights, steering wheels,safety bulbs. Other directives covered rules on labeling of produts, packaging, composition, foodstuffs, cosmetics, pharmaceuticals, electrical consumer products, mechanical and weighing equipment.

Failure to implement directives issued by the Community istitutions has consequences. The Court of Justice awarded individuals for damages caused by Member States for not implementing directives issued by the Council or implemented them improperly. we will cover that in further details in the future.

Gabriel Sawma, Esq.

Copyright 2005-ALL RIGHTS RESERVED.

European Community Acts

2005-01-27T15:53:00.000-08:00

Article 189 of the EEC Treaty defines the legal acts that the Community institutions may take and the legal effect those acts may have.

Accordingly, the Council and the Commission may issue regulations, directives, decisions, recomendations or opinions.

Regulations, directives and decisions are capable of creating "direct effects." Art. 189 of the EEC states that regulations are to be of "general application." See Leonisco v Italian Ministry of Agriculture (case 93/71). A directive combining a deadline for implementation is only capable of creatig direct effects from the date of the deadline (See publico Ministero v Ratti (case 148/78) 1979.

Directives are binding, but it is up to the national authorities to chose a method of its application. National legislation must be interpreted in the light of wording and purpose of the directive. The ECJ held that the duty of Member States to achieve the results envisaged by the directive and their duty to ensure fulfilment of that obligation binds all authorities within the Member States including national courts. The Court of Justice went further to say national courts must interpret and apply legislation adopted to implement a directive in the light of the wording and purpose of the directive in order to achieve the objective of the directive.( See Von Closon and Kamman v Land NordheimWestfalen (case 14/83) 1984.

A decision is binding in its entirety. In EP v Council (case C-42/97) the Europan Court of Justice concluded that the effect of the Council decision was appropriate.

On the other hand, recommendations and opinions have no binding force.

Gabriel Sawma Esq.

copyright 2005-ALL RIGHTS RESERVED

The Judiciary in the EU

2005-01-16T15:34:00.000-08:00

The Treaty Establising the European Union's Constitution is undergoing ratification process. It is a document signed by independant nations, therefore, the Treaty becomes part of the international law.

The EU is an institution formed without taking out the constitutions of Member States. They still have their government institutions, each Member maintains its foreign ministry, defence, and other governmental institutions that any sovereign nation has. Member States have not surrendered their sovereignty.

However, the integration process wich has been going on since the establishment of the EEC Treaty in March 25, 1957, has lead to a gradual development of European Union Law. These laws are distinguised from those of Member State Laws.

The evolution process of new private European Law, is lead by the European Court of Justice. It spearheaded the process by issueing rulings on matters laid down in the EU Treaties. The number of rules, directives, decisions issued by the European institutions, such as the Council, the Commission and the Parliament are increasing and the ECJ has to interpret these rules. Sometimes the Court creates new rules of European private law applicable to and in all the Member States. The rulings of the Court of Justice has lead to the development of Europan procedural law.

The ECJ has taken a great care to create an atmosphere of respect to national judiciaries as we shall see in future articles.

Gabriel Sawma

Copyright 2005 by Gabriel Sawma - ALL RIGHTS RESERVED

The Nature of the European agreements

2005-01-13T16:01:00.000-08:00

The ECSC, the EEC and Euratom Treaties are signed by independent states. They fall under international law. Those have lead to the establishment of institutions and laws which are distinguished from those of Member States.

The fact that the above mentioned Treaties are signed and ratified by Member States means that each of the States carries obligations, under the Treaties to enact into law, each within its territory, to be harmonious to the Community law. Thus each State's constitution must allow such changes to take place. In countries whose cnstitutions or legislations did not allow that, appropriate constitutional or legislations had to be made. The Court of Justice treats the European Community Treaties as creating "a new legal order". we will cover that in future articles.

The Constitution as well as the Treaties do not force Member States to abandon their laws merely because of their membership in the Union. The Constitution of Europe creates a balance of values and interests to prevent the fear of Member States to be overtaken or become powerless. In fact Art.1,1 of the proposed constitution states clearly that "Member States confer competences to attain objectives they have in common." The common objectives of Member States are expressed in Article 2 of the proposed constitution, it reads:"The Union is founded on the values of respect for human dignity, liberty, democracy, equality, the rule of law and respect for human rights. These values are common to Member States..."

As far as the objectives of the Union is concerned, Art.3,1 reads:"the well-being of its peoples"; freedom, security and justice without internal frontiers, and single market where competiton is free and undestorted (see Art.1,2)' "to balance economic growth, a social market economy, highly competitive and aiming at full employment and social progress, and within high level of protection and improvement of the quality of the environmet. It shall promote scientific and technological advance (Art.1,3). It shall combat social exclusion and discrimination, and shall promote social justice and protection, equality between women and men, solidarity between generations and protection of children's rights. It shall promote economic, social and territorial cohesion, and solidarity among Member States (Art.3,3).

The prposed constitution addresses the cultural and linguistic diversity among Member States. Art 3,3 reads: The Union shall respect its rich cultural and linguistic diversity...", respects "the national identities" of Member States, "inherent their fundamental structures, political and constitutional, inclusive of regional and local self-government". "It shall respect their essential State functions, including those for insuring the territorial integrity of the State, and for maintaining law and order and safeguarding internal security." (Art.5,1).

In future articles, I'll discuss in further details, the application of these priciples as described by the proposed constitution.

P.S. The European Union Parliament has just passed a resolution in favour of the proposed constitution. It will be submitted to a "series of make-or-break referendums starting next month in the twenty-five nation bloc." see the N.Y.Times, January 13, 2005. The ratification process is expected to take two to three years. I mentioned in a previous article that the proposed constitution must be ratified in every European Union Member State before it takes effect. So far the Parliaments of Hungary and Lithuania have already ratified the constituion. The two nations have joined the EU in May, 2004.

Gabriel Sawma

Copyright 2005 by Gabriel Sawma - ALL RIGHTS RESERVED

European Union Law - background II

2005-01-12T16:36:00.000-08:00

As the European Community progressed, other nations expressed interest to join in. Article 237 of the EEC Treaty lay down the procedure for accession. In January 22, 1972, a treaty of Accession was signed in Brussels between the Community and the U.K., Denmark and Ireland, it became effective in January 1, 1973. Greece signed, in Athens, a Treaty of Accession, May 28, 1979, it took effect on January 1, 1981. At Lisbon, June 12,1985, Spain, Portugal became members of the European community, bringing membership to twelve countries.

Article 8a of the EEC Treaty promised that all technical, legal and fiscal barriers to trade between Member States would be eliminated by the end of 1992. To achieve that, the Single European Act (SEA) was signed and became effective in July 1, 1987. SEA focused its attention to achieve that goal.

Among other functions of the SEA was to take legislative actions in issues related to environment protection, employment health and safety, technological and regional development and the creation of Economic and Monetary Union in compliance with Article 102a of the SEA. It also broadened the functions of the Parliament.

In June 24, 1994 Austria, Finland and Sweden signed an Accession Treaty to join the Community, their membership entered into force in January 1, 1995.

The EEC Treaty was amended in 1986 by the Single European Act as we mentioned, it was amended also in 1993 by the Treaty on European Union (TEU or the Maastricht Treaty), after which it was known as the EC Treaty, and in 1997 by the Treaty of Amsterdam (ToA). In January 1, 1999 the single currency came into operation in the participating states.

As more nations applied for membership in the European Union, the Treaty of Nice (TN) was signed in February 2001, coming into force on February 1, 2003. The Treaty of Nice prepared the way for substantial further enlargement to take in ten more members, they include: Cyprus (Greek section), the Czech Republic, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia bringing the total to twenty-five states.

All the treaties mentioned above culminated in a Treaty establishing the Constituton For Europe. It was signed in Rome on October 2, 2004. The process of ratification is underway.

In the next chapter, I'll be writing about the nature of those agreements within the context of international law.

For further reading on the background of European Union, see the following books:

George A. Bermann, Cases and Materials on European Community Law. American Case Book Series;
European University Institute, Integration through Law, Europe and the American Federal Experience;
F. Snyder, New Directions in European Community Law (Weidenfeld and Nicolson, 1990;
H. von der Groeben, The European Community: The Formative Years (EC Commission 1987).

Gabriel Sawma Esq.

Copyright 2005 by Gabriel Sawma - ALL RIGHTS RESERVED

European Union Law - Background I

2005-01-11T19:19:00.000-08:00

Article 3 of the European Union's Constitution states, as an objective, the creaton of a "single market where competition is free and undistorted."

A single and undistorted market is a fundamental pillar in the European Union. The Court of Justice has played a major role through case law striking down many barriers to trade in order to achieve a single market.

As a background to Artice 3, Paragraph 2 of the Constitution, the European Community, after the vast destruction of life and property brought about by World War II, and the threat of the Soviet Union, took important steps to achieve European unity. The process of integration which started in 1948 by the exiled leaders of Belgium, the Netherlands and Luxembourg whose efforts yielded the Benelux Customs Convention and led ten years later to the creation of a common trading area.(the Treaty Instituting the Benelux Union, February 3, 1958.)

In the post war period, US foreign policy encouraged political cooperation in western Europe. The United States created the Marshall Plan and helped the reconstruction of sixteen European nations. As a result, the Organization for European Economic Cooperation (OEEC) was set up in 1948. In 1960, Canada ad the US joined the OEEC, which was then renamed the Organization for Economic Cooperation and Development (OECD). Although the OECD had no formal lawmaking powers, its recommendations, however, made a great impact on European eonomic policies.

In 1949, Canada, the US and a majority of western European states set up NATO as a military defensive oganization to face the Soviet Union. That was followed by a number of agreements among the Europan states, including among them, the European Coal and Steal Community (ECSC), for regulating coal and steel. This was established in April 18, 1951.

Economic union among western European states proceeded with a Treaty Establishing the European Economic Community (EEC), signed in Rome on March 25, 1957. A separate treaty, the European Atomic Energy Community (EAEC or EURATOM) was established, it was signed in Rome on that same date. Six signatory states: France, Italy, Germany, Belgium, the Netherlands and Luxembourg ratified the two treaties, which took effect on January 1, 1958.

The United Kingdom along with Austria, Denmark, Norway, Portugal, Sweden and Switzerland agreed on January 4, 1960 to establish a loose form of economic cooperation called the European Free Trade Association (EFTA). Both the EEC and the EFTA enjoyed close and harmonious trade relations which culminated in 1992, in an agreement to create a European Economic Area (EEA).

The European Economic Community Treaty (EEC) calls for "common action to eliminate bariers which divide Europe." Article 2 calls for the creation of a "common market". To do so, the European Community started a process to harmonize its economic activities by adopting rules to balance a stable and expanded economy, lift the standard of living of its people and advance closer relations among its members. Article 3 of the EEC Treaty prescribes the establishment of a common external tariff and commercial policy, the elimination of bariers to "the free movement of goods, persons, services and capital", the creation of a common policy in agriculture, transport and competition, the coordination of economic and monetary policy, and harmonization of member state laws to attain a common market.

Furthermore, the Community established Associate, Commercial and Mixed agreements with non-member states(see EEC Treaty art.310.) In July 1, 1968, the Community agreed on the removal of internal tariffs and the creation of a common external tariff. The Community also began representing the Member States in GATT, and enacted programs in the field of employment, equal rights for women, minimum standard of water and air quality, limiting pollution, protecting wild life, consumer protection in labeling and advertising, and elimination of unfair business practices in various fields.

The EEC Treaty was amended by the Single European Act (SEA) which introduced important changes in the political as well as the structure of the Community. In the next chapter, I will turn to these developments.

Gariel Sawma Esq.

Copyright 2005 by Gabriel Sawma. ALL RIGHTS RESERVED

About the Author

2005-01-09T18:33:00.000-08:00

I am Gabriel Sawma, the purpose of this blog is to provide a forum for those who would like to discuss issues related to International law, in particular, the European Union Law.

Unfortunately, work responsibilities prevent my colleague, John Soueid Esq, and me from discussing at length those cases that we find interesting. Hopefully, you can fnd the time to read my posts and add to the dialogue.

Being an attorney for over thirty years, graduated from the Lebanese University, school of Law, the Europan Union Law has been a labor of love for me.I am a member of the New York State Bar Association, Associate Member of the American Bar, and the Beirut Bar Association in Lebanon.

American lawyers need to be equipped with the tools necessary to advise clients on trade with America's largest customer, the European Union. Sales of American goods and services to the Union exceed sales to any other nation.

American lawyers who would advise his client to sign a document giving disributorship, say, in Germany, that exclusive agreement for an American product does a disservice to his client and commits malpractice. The German distributor is now perfectly free to market this American product anywhere in the European Union territory, and the Amercian manuacturer most likely has violated European Union's laws prohibiting anticompetitive behavour.

Unfamiliar rules on franchising, patents, trademarks, and copyrights are new concepts which American lawyers may not be familiar with.

For further information on this, please feel free to e-mail me at gabrielsawma@yahoo.com. I hope you enjoy my articles.

Gabriel Sawma Esq.

European Union Law - Constitution

2005-01-08T20:48:00.000-08:00

On October 19,2004, twenty-five European leaders signed a treaty establishing the Constitution of the European Union. The Treaty is composed of four Parts: The text of the of the Constitution, the Charter of the Fundamental Rights, provisions on how the Constitution will operate and general provisions, including ratification procedures.

In addition, there are several documents attached to the Constitution. These include thirty-six protocols covering the role of the national parliaments, the voting arrangements in the European Parliament and the Council as well as treaties of ascension. Including among others, there are fifty declarations dealing with the establishment of a European External Action Service and explanations to the Charter of Fundamental Rights. The full text of the full text of the constitution could be seen on www.eurotreaties.com.

Article I-19 of the European Union’s Constitution establishes five institutions. These are: the Parliament, the Council, the Council of Ministers, the Commission and the Court of Justice.

The signing of the European Union’s Constitution was a preliminary step. National parliaments have to ratify this Treaty. Ten or more of the Union’s twenty-five countries are scheduling national referendums.

The Treaty establishing the Constitution was signed in Rome, it consolidates past treaties into a single document.

The acts of the European Union may be issued in several forms: Regulations, Directives, Decisions, Recommendations and Opinions (see case C-322/88, Grinaldi v. Fonds des Maladies Proffessionalles). In addition to these forms, there are treaties between the European Union and non-member countries which may take the forms of Associate Membership Agreement, (see article 310 of the E.C. Treaty), Commercial Agreements (ibid 133) and mixed agreements (see T.C. Hartley, the Foundation of the European Community Law 155-182, 4th ed. Oxford Uni. Press,) and then there is the separate matter of the European Community Budgetary Process (see E.C. Treaty art. 268-280.)

Paragraph 1, art. I-4 of the Constitution lists the European basic four Freedoms, these are: Free movement of Persons, Goods, Services and Capital. Those and others would be the subject of my future articles.

Gabriel Sawma, Esq.

Sawma and Soueid International Law Firm.

January 8, 2005

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