Yearbook of Islamic and Middle Eastern Law

Yearbook of Islamic and
Middle Eastern Law

Volume 9
20022003
CIMEL
Centre of Islamic and Middle Eastern Law
School of Oriental and African Studies, University of London
Chairman
HH Professor Judge Eugene Cotran
Directors
Mr Ian Edge, Barrister and Lecturer in Law, SOAS
Mr Nick Foster, Solicitor and Lecturer in Law, SOAS
Deputy Director
Dr Lynn Welchman, Senior Lecturer in Law, SOAS
The Management Committee
The Chairman
The Directors
The Deputy Director
Professor M.A.S. Abdul Haleem, King Fahd Professor of Islamic Studies, SOAS; and Director, Islamic
Studies Centre, SOAS
Dr Mark Hoyle, Barrister and Editor, Arab Law Quarterly
Mr Mushtaq Khan, Associate Dean of Research for the Faculty of Law and Social Science; Senior Lecturer
in Economics, SOAS
Dr Martin Lau, Barrister-at-Law, Chair, Department of Law, SOAS
Professor Michael Palmer, Professor of Law and Director of the Centre of East Asian Law, SOAS
Professor Iain Scobbie, Sir Joseph Hotung Research Professor in Law, Human Rights and Peace Building in
the Middle East, SOAS
The Advisory Council
The Chairman
The Director
The Deputy Director
The Management Committee
HE Dr Husain M.Al Baharna, former Minister of State for Legal Affairs, Bahrain
HE Judge Mohammed Bedjaoui, International Court of Justice, The Hague
Dame Elizabeth Butler-Sloss, President of the Family Division, Court of Appeal, England
Sir James Craig, former Ambassador of HMG to Saudi Arabia and Syria
Mr Michael Davies, Partner, Nabarro Nathanson, Solicitors
Sheikh Salah Al-Hejailan, President, Euro-Arab Arbitration Board of the Euro-Arab Arbitration System;
founder, Law Firm of Salah Al-Hejailan
Professor Enid Hill, Chairman, Department of Political Science, American University of Cairo
HE Judge Awn el-Khassawneh, International Court of Justice, The Hague
Professor Ahmed El-Kosheri, of Kosheri, Rashed & Riad of Cairo and ad hoc judge at the ICJ
Professor Chibli Mallat, Attorney and Professor of Law, Sir Joseph University, Beirut
Mr John Merrett, ICC Representative in the UK
The Hon. Mamdouh Mare, Chief Justice, Supreme Constitutional Court, Egypt
Professor Abdullah An-Na'im, Professor of Law, Emory University, Atlanta, USA
Mr Richard Price, Partner, Clifford Chance, Solicitors
Dr Anis Al-Qasem, Barrister, Former Chairman, Legal Committee, Palestine National Council
Mr Nabil Saleh, Middle East Legal Consultant, Beirut and London
Dr Nageeb Shamiri, President, Criminal Chamber, Supreme Court of Yemen and Member of Yemen's
Supreme Constitutional Court
Dr Adel Omar Sherif, Deputy Chief Justice, Supreme Constitutional Court, Egypt
Lord Slynn of Hadley, Lord of Appeal in Ordinary, England
Dr Frank Vogel, Assistant Professor, Harvard Law School
HE Dr Ratib al-Wazani, former Minister of Justice, Jordan
Lord Woolf, Lord Chief Justice, England
Mr Hatem Zu'bi, Legal Counsel and Arbitrator, Bahrain and London
Yearbook of Isl amic and
Middl e Eastern Law
Volume 9
20022003
General Editors
Eugene Cotran, LLD
Circuit Judge, Visiting Professor of Law, SOAS
Chairman, CIMEL
and
Martin Lau, MA, PhD
Barrister-at-Law, Chair, Department of Law, SOAS
Published for
The Centre of Islamic and Middle Eastern Law
at the School of Oriental and African Studies
University of London
CIMEL
Brill
Leiden/Boston
Printed on acid-free paper
A Cataloging-in-Publication record for this book is available from the
Library of Congress
This Publication is to be cited as Yearbook of Islamic and Middle Eastern Law, Volume 9
(2002-2003)
ISBN 90 04 14046 8
2004 Brill Academic Publishers
Koninklijke Brill NV incorporates the imprints Brill Academic Publishers,
Martinus Nijhoff Publishers and VSP.
www.brill.nl
This publication is protected by international copyright law.
All rights reserved. No part of this publication may be reproduced,
stored in a retrieval system, or transmitted in any form or by any
means, electronic, mechanical, photocopying, recording or otherwise, without
the prior permission of the publisher.
Contents
Biographical Notes vii
Preface xi
Part I Articles
Iraq: The Pax Americana and the Law 3
Lord Alexander of Weedon QC
Britains War on Saddam had the Law on its Side 29
Christopher Greenwood QC
Islamic Law and Feminism: The Story of a Relationship 32
Ziba Mir-Hosseini
Iranian Family Law in Theory and Practice 43
Dr. Nadjma Yassari
Foreign Investment Protection in Saudi Arabia 65
Jean-Benot Zegers
The Role of International Law and Human Rights in Peacemaking and
Crafting Durable Solutions for Refugees: Comparative Comment
Lynn Welchman 88
Sectarianism and the Rejection of Tawteen: Lebanon and the Palestinian
Refugees 110
Nur Masalha
Betrayed and Forgotten: Palestinian Refugees in Lebanon 131
Lena El-Malak
The Jurisdictional Politics of Israel/Palestine: The Case of Palestinian
Workers in Israeli Settlements 169
Tobias Kelly
Part II Country Surveys
Egypt Kosheri, Rashed & Riad 181
Syria Jacques el-Hakim 195
Iraq Sabah Al-Mukhtar 209
Jordan Hamzeh Haddad 216
Palestine Anis Al-Qasem 227
Lebanon Nayla Comair-Obeid 231
Libya Mustafa El-Alem 242
vi
Sudan John Wuol Makec 247
Kuwait Fadi B. Nader 261
Saudi Arabia Fares Al-Hejailan, Law Firm of Salah Al-Hejailan, Riyadh 265
United Arab Emirates Terence Witzmann and James Abbott,
Clifford Chance, Dubai 274
Bahrain Husain M. Al Baharna 285
Oman Andrew Rae and Brian Howard, Trowers & Hamlins, Oman 295
Yemen Nageeb Shamiri 315
Iran M. A. Ansari-Pour 341
Morocco Michle Zirari-Devif 350
Pakistan Martin Lau 372
Part III Selected Documents
Iraq
United Nations Security Council Resolutions regarding Iraq 381
Law of Administration for the State of Iraq for the Transitional
Period, 8 March 2004 399
Legality of Armed Force 418
Palestine/Israeli Conflict
United Nations Security Council Resolutions regarding the
Palestine/Israeli Conflict 419
A Performance-Based Road Map to a Permanent Solution to the
Israeli-Palestinian Conflict 430
The Geneva Accord Draft Permanent Status Agreement 435
Afghanistan
The Constitution of Afghanistan (Unofficial Translation) 457
Pakistan
UK-Pakistan Judicial Protocol on Children Matters 486
Yemen
Law No. 35/2003 on Combating Money Laundering 488
Part IV Selected Cases
The Wall at the ICJ 495
The Wall and International Humanitarian Law
Professor Iain Scobbie 495
The Lockerbie Trial: Further and Future Developments
Professor Iain Scobbie 507
Shamil Bank of Bahrain v. Beximco Pharmaceuticals and Others
Introduction by Kilian Blz 509
Constitutional Case No. 4/2003: Decided by the Constitutional
Division of the Supreme Court of the Republic of Yemen
Said Hasson Sohbi 527
Index 532
Contents
vii
Biographical Notes
James Abbott is a Solicitor with Clifford Chance, Dubai.
The Lord Alexander of Weedon, QC, a Barrister-at-Law of Middle Temple, is
Chairman of Justice, the all-Party reform group.
Husain M. Al Baharna gained a doctorate in international law from the University
of Cambridge, and is a Barrister-at-Law of Lincolns Inn and a member of the
Bahrain Bar Society. He is a member of both the UN International Law
Commission and the International Council for Commercial Arbitration (ICCA).
He is the former Minister for Legal Affairs in the State of Bahrain, and is now an
attorney and legal consultant in Bahrain. He is also a registered arbitrator.
Fares Al-Hejailan (LLB, LLM) is an attorney at the Law Firm of Salah Al-Hejailan,
Riyadh.
Sabah Al-Mukhtar (LLB, LLM) is a legal consultant in Iraqi, Arab and Islamic
law. He is a founding member and partner of the Arab Lawyers Network, and a
member of the Iraqi Bar Association, the Arab Lawyers Federation and the
International Bar Association. He is also a Member of the Chartered Institute
of Arbitrators, and the Arab Arbitration Association and is a registered arbitrator
with the ICC. He is a fellow both of the British Institute of Management and the
Institute of Petroleum. He is also a member of the Bar Human Rights Committee
of England and Wales, the Royal Institute of International Affairs (Chatham
House), the Muslim Council of Britain (National Legal Committee) and the
National Civil Rights Movement (National Steering Committee). He is President
of the Arab Lawyers Association (UK) and a member of the editorial board of
Arab Law Quarterly.
Anis Al-Qasem (LLM, PhD), a Barrister-at-Law of Lincolns Inn, was formerly
Legal Adviser to the Government of Libya and Chairman of the Libyan Petroleum
Commission during the monarchy. He is presently a practising lawyer and
consultant in London in the laws of the Middle East, a licensed legal consultant
in Dubai, a former visiting examiner and Associate Fellow of the Institute of
Advanced Legal Studies, University of London, and Chairman of the Legal
Committee of the Palestine National Council.
viii
M. A. Ansari-Pour (LLB, LLM, PhD) was a judge in the Iranian judiciary before
coming to England to study for the LLM and a doctorate. He is the Chairman
of the Iranian Law Institute and he has written widely (including both articles
and books) in English and Persian. He is now a Legal Adviser and Attorney in
Iran.
Kilian Blz, Dr. iur. LLM (London), is a Partner at Gleiss Lutz, Frankfurt/Main,
Germany. He studied law and Middle East studies at the universities of Freiburg,
Berlin, Damascus, Cairo (AUC) and London (SOAS).
Nayla Comair-Obeid is Doctor of Laws of the Pantheon-Assas University, Paris,
Attorney at the Beirut Bar, and Professor of the Lebanese Faculty of Law. Her
speciality is international commercial law, in which connection she has made
comparative studies in the field of law of arbitration, particularly arbitration in
Arab countries. This research has led her to make a detailed comparative study
of the civil and commercial codes of the states of the Middle East. She is the
author of important works in the field, notably Les contrats en droit musulman
des affaires (Economica, Paris, 1995 ); The Law of Business Contracts in the Arab
Middle East (Kluwer, 1996); and Arbitration in Lebanese Law: A Comparative Study
(Delta, 1999).
Eugene Cotran (LLD) has been a circuit judge in England since 1992. He is a
Visiting Professor of Law at the School of Oriental and African Studies, University
of London, and the Chairman of the Centre of Islamic and Middle Eastern Law
within the School. He was formerly a practising Barrister-at-Law in England and
the Commonwealth, a Law Commissioner and High Court judge in Kenya and
an international arbitrator. He is also a Board Member of the Palestinian
Independent Commission for Citizens Rights. He has produced numerous
publications on the laws of Africa, the Commonwealth, the Middle East and
international and immigration law.
Mustafa El-Alem (LLB, LLM) is a Libyan practising lawyer and legal adviser and
a member of the Libyan Bar Association. He is a member of the Board of
Directors of the Arab Association for International Arbitration and the Libyan
member of the Alliance of Arab Lawyers and a full Member of the Euro-Arab
Arbitration Board in London.
Jacques el-Hakim (LLD) is agrg from the French Faculties of Law and has
graduated in law in Syria, Lebanon and the United States. He is a member of
the Damascus Bar and is currently a Professor and Head of the Commercial
Law Department, Faculty of Law of Damascus University and an Attorney-at-Law.
He has produced several publications on Syrian and other laws and on
economics.
Lena El-Malak obtained an MA in Public International Law from SOAS in
2003 and is currently working as Durable Solutions Assistant for the UNHCR
in Jordan.
Biographical Notes
ix
Hatem Gabr (PhD) is a senior legal consultant with the Law Firm of Kosheri,
Rashed & Riad. He was formerly a counsellor and judge in the Egyptian Council
of State and in the Supreme Constitutional Court of Egypt.
Christopher Greenwood QC is Professor of International Law at the London
School of Economics. He has appeared as counsel in a number of cases
concerning international law in the International Court of Justice (including
the Lockerbie case and the case on the use of force in Kosovo) and the English
courts (including the Pinochet extradition case). He has assisted the UK
Government on the Iraq conflict.
Hamzeh Haddad was educated at Cairo University, from which he graduated as
a Doctor of Laws, and the University of Bristol, where he gained a doctorate. He
is the author of numerous books and articles and a speaker at many regional
and international conferences. He is a member of the Jordan Bar Association
and of the Arbitration Board of the Arab-Swiss Chamber of Commerce, and a
practising attorney and arbitrator.
Said Hasson Sohbi is a Barrister-at-Law before the Courts of the Republic of Yemen.
Brian Howard is a Partner at Trowers & Hamlins, Sultanate of Oman.
The Law Firm Kosheri, Rashed & Riad was established in 1974 by Professor Dr.
Ahmed El-Kosheri and Professor Dr. Samia Rashed.The firm has a strong
commercial and litigation practice which includes investments, international
business contracts, construction, banking, mining and petroleum concessions,
patents and trademarks, business litigation and transnational arbitration. The
firm is composed of 17 lawyers, including two partners who are members of
the New York Bar (Tarek Riad and Hala Riad), in addition to the support staff.
Dr. Hatem Gabr is a senior consultant in the firm.
Dr. Toby Kelly is the Paul Adams Research Fellow at the Centre for Socio-Legal
Studies, Oxford University.
Martin Lau is a Barrister and lecturer in law at the School of Oriental and African
Studies, University of London, where he teaches South Asian law. He studied at
the University of Heidelberg, Germany, and at the University of London. He
has published extensively on South Asian law and frequently acts as an expert in
proceedings for the International Chamber of Commerce and English courts.
He is now the Chair of the Department of Law at SOAS.
Nur Masalha is a Senior Lecturer and Director of Holy Land Studies, St Marys
College, University of Surrey. He is the author of several books on the Palestinian
refugees, including The Politics of Denial: Israel and the Palestinian Refugee Problem
(London: Pluto Press, 2003).
Ziba Mir-Hosseini is currently a Research Associate at the Centre of Islamic and
Middle Eastern Law, where she is pursuing a project on Justice and Gender in
Islamic Thought.
Biographical Notes
x
Fadi B. Nader is currently the Regional Attorney for the American Life Insurance
Company (a member of the American International Group, AIG) for the Middle
East, Africa and South Asia region. He qualified in 1985; was an associate
1986-1988 with Samir Saleh and Associates, London; a company secretary
1988-1992 UB (Suisse) SA, Geneva; in private banking 1992-1993 with Credit
Commercial de France, London; and a Partner since 1987 in Moghaizel Law
Offices, Beirut. He is a member of the Beirut Bar Association and the Inter-
national Bar Association. He was educated at College des Freres Mont La Salle,
Lebanon; St Joseph University, Beirut (LLB, June 1985); Queen Mary College,
London (LLM, September 1997).
Andrew Rae is a Partner with Trowers & Hamlins, Oman.
Tarek Riad (SJD) has a doctorate in law from Harvard University and is a Partner
in the Law Firm Kosheri, Rashed & Riad. He is a special legal adviser to the
speaker of the Egyptian Peoples Assembly.
Professor Iain Scobbie is the Sir Joseph Hotung Research Professor in Law,
Human Rights and Peace Building in the Middle East, SOAS, University of
London.
Nageeb Shamiri (LLD) is a member of the Supreme Judicial Council of Yemen
and of the Constitutional Division of the Supreme Court of Yemen. He was
formerly the Chief Justice of South Yemen. He is the Chairman of the Judicial
Inspection Commission, the Secretary of the Law Reform Unit at the Ministry
of Legal and Parliamentary Affairs and contributed to the drafting of the
Republics main unified laws. He is a member of the National Committee
regarding the Arbitration with Eritrea, and of the Joint Commission with Saudi
Arabia regarding Maritime Boundaries.
Lynn Welchman is a Senior Lecturer, and Director of the Centre of Islamic and
Middle Eastern Law, SOAS, University of London.
Terence Witzmann is Head of Middle East Litigation and Dispute Resolution
Practice, Clifford Chance, Dubai.
John Wuol Makec is a Justice of the Supreme Court, Khartoum, Sudan.
Dr. Nadjma Yassari, LLM, (SOAS), is Head of the Department for the Laws of
Islamic Countries at the Max-Planck-Institute for Foreign Private and Private
International Law in Hamburg.
Jean-Benot Zegers is a manager with Freshfields Bruckhaus Deringer
International Arbitration Group, Paris, and has been on secondment to The
Law Firm of Salah Al-Hejailan since April 2001.
Michle Zirari-Devif is a Professor at the Faculty of Juridical, Economic and Social
Sciences, University Mohammed V, Rabat, Morocco.
Biographical Notes
xi
Preface
The year under review remains dominated by Iraq and Palestine. Since last years
invasion of Iraq by coalition forces led by the United States, the countrys fortunes
have been marked by a seemingly unstoppable descent into chaos and violence.
Hardly a day goes past without news of violent encounters between various Iraqi
militias and coalition forces. The number of casualties has been high and both
infrastructure and the provision of essential services has been severely disrupted in
many parts of the country. Sovereignity has been transferred back to the Iraqi people
on 30 June 2004 and a Road Map for the countrys transition to democratic self-
government is contained in a Transitional Administration Law. However, there is
little reason to believe that 30 June 2004 will bring an immediate end to the violence:
the United States and its allies have committed themselves to stay in Iraq for the
foreseeable future and there are very real concerns about the viability of Iraq as a
unified state. This volume contains not only the text of the Transitional
Administrative Law but also the texts of all relevant U.N. Resolutions passed since
the publication of last years volume, including the unanimous U.N. Security Council
Resolution giving the United Nations blessing to future arrangements. A new
Cabinet has been formed and the Coalition Provisional Authority has been dissolved.
Events in Palestine have been similarly traumatic. The peace efforts envisaged by
the Road Map, reproduced in this volume, never materialised
1
and currently the
agenda is dominated by the Israeli governments proposal to withdraw from Gaza
and to vacate most of the Jewish settlements there. The construction of a wall by
Israel is creating territorial realities on the ground and despite a reference on its
legality under international law, submitted by Palestine to the International Court
of Justice, few expect that the wall will be dismantled by Israel in the foreseeable
future. The Opinion of the ICJ is expected to be published by July of this year
2
but
this volume contains a detailed analysis of the legality of the wall and the submissions
made before the ICJ. A private peace initiative that resulted in the Geneva Accord
is also reproduced in this volume but, as with the Road Map, there is little prospect
that this will be implemented. There are three articles that deal with the ongoing
Palestinian refugee problem and one with the application of Israeli labour laws in
the Israeli settlements.
At least on the surface, events in Afghanistan have been more positive. The steps
to be taken towards the reconstruction of Afghanistan envisaged by the Bonn
Agreement of December 2001 have been complied with in substantial measure.
The most significant event was the endorsement of a new Afghan Constitution by a
1 The G8 Summit held in Sea Island, Georgia, in June 2004 supposedly gave impetus to the
defunct Road Map by announcing its continued support of the Road Map and that the Quartet
will soon send a delegation to the Territory.
2 The ICJ has now given its Opinion (by a majority of 14 to 1 (the U.S. judge alone dissenting)
declaring the wall contrary to international law and calling on Israel to demolish it and grant
compensation to Palestinians who suffered. The full Opinion of the Court and its aftermath
will be fully dealt with in next years Volume 10 (see post p. 506).
xii
Constitutional Loya Jirga in January 2004. The unofficial English translation of the
new Constitution is contained in this volume. The only slip in the timetable
contained in the Bonn Agreement concerns the elections. Planned for June 2004,
they have now been moved to September 2004 due to the difficulties experienced
in the registration of voters. Nevertheless, problems also persist in Afghanistan.
Elements close to the ousted Taliban regime have increased their attacks on a wide
range of targets that include not only coalition and ISAF forces but increasingly
also those working for international humanitarian organisations. In June 2004,
five employees of the organisation Medicins Sans Frontires were ambushed and
killed and clashes between U.S. and Afghan military forces and remnants of the
Taliban continue in the areas close to the countrys borders with Pakistan.
However, the violence experienced in the Middle East should not detract from
other developments in the region and in Islamic law generally. This years volume
contains two contributions on Iran including Ziba Mir-Hosseinis Coulson Lecture,
which deals with the legal position of women in Iran and Dr. Yassaris general
introduction to Irans family law. Significant also is the recent U.K. Pakistan Judicial
Protocol on Child Abduction, which is reproduced in the Selected Documents
Section (p. 379) of this years volume. The Protocol represents an attempt by the
judiciaries of both countries to deal with the problem of child abductions. Pakistan
is not a signatory to the Hague Convention on Child Abduction and, until the
signing of the Protocol, there was great uncertainty regarding whether or not a
child illegally removed from the jurisdiction of either Pakistan or the United
Kingdom would be returned to its country of residence. Several Pakistani cases
confirm that the Protocol is being applied and adhered to. There is also an article
on Foreign Investment Protection in Saudi Arabia by Jean-Benot Zegers.
A recent decision by an English court has confirmed that contractual provisions
attempting to make agreements subject to Islamic law remain unenforceable under
English law. The decision of the Court of Appeal in Shamil Bank v. Beximco is repro-
duced in this volume with an introduction by Kilian Blz. There is also a contribution
on a Constitutional case from the Yemen. Last, but not least, there is also a brief
update on the developments in the Lockerbie case.
We are happy to announce that the Yearbook has a new publisher Brill Academic
Publishers of Leiden, The Netherlands, who take over from Kluwer Law
International. Ccile Insinger has, however, also moved to Brill and will remain in
charge of all matters relating to publication and sales at Brill. We also say goodbye
to Hilary Scannell, who has been our book editor for many years, and we take the
opportunity, yet again, to thank her for her services. She is replaced by Ruth Eldon,
who will be known to many of our contributors and readers through her long
association with the International Bar Association and her editorial experience of
their publications. We are delighted to welcome her to our team.
Our dear friend and colleague, Sheikh Salah Al-Hejailan, received a well-deserved
honour the C.B.E. in this years New Years Honours List in recognition of his
role since 1976 as honorary legal adviser to British ambassadors to the Kingdom of
Saudi Arabia. I am sure our readers and contributors will want to join us in extending
to him our very sincere and warm congratulations. For our part, we wish to reiterate
our heartfelt thanks to him and his law firm for their continued professional and
financial support to this Yearbook.
Eugene Cotran
Martin Lau July 2004
Preface
Part I
Articles
Iraq: The Pax Americana and the Law
Lord Alexander of Weedon QC*
1 INTRODUCTION
In March this year the United States and the United Kingdom invaded the
sovereign state of Iraq to secure regime change with the aim of eliminating
weapons of mass destruction.
1
This novel action had been preceded by a notable political debate, despite
the official opposition giving full support to the government. But the legal
debate played a much lesser part. The Attorney-General gave his view, which
chimed in with that of the Foreign Office, that the invasion was legal.
2
The
great majority of those public international lawyers who expressed a view did
not agree.
3
But the wider debate largely turned on conflicting views of the
morality and wisdom of waging war. International law, if not exactly a sideshow,
was pushed into the background. Nor has any court passed judgment on the
legality of the war.
4
Courts in the United States and the United Kingdom have
declined applications to date. In the United States the issue falls firmly within
* Chairman of Justice, the all-party reform group. The author would like to thank Ms Rosemary
Davidson B.A. Hons (Oxon), Zertifikat Jura (University of Munich) for her assistance with the
research and preparation of this article.
1 Saddam Hussein and his sons must leave Iraq within 48 hours. Their refusal to do so will
result in military conflict commenced at a time of our choosing. President George W. Bush,
Address to the Nation, 17 March 2003.
2 The Attorney-General Lord Goldsmith QCs Parliamentary written answer to Baroness Ramsay
of Cartvale, H.L. Deb. 17 March 2003 cWA1. Foreign Office legal advice published to the
Foreign Affairs Committee, 17 March 2003. See also Part III, p. 418, for full text.
3 Prof. Ulf Bernitz, Dr. Nicolas Espejo-Yaksic, Agnes Hurwitz, Prof. Vaughan Lowe, Dr. Ben
Saul, Dr. Katja Ziegler (University of Oxford), Prof. James Crawford, Dr. Susan Marks, Dr.
Roger OKeefe (University of Cambridge), Prof. Christine Chinkin, Dr. Gerry Simpson,
Deborah Cass (London School of Economics), Dr. Matthew Craven (School of Oriental and
African Studies), Prof. Philippe Sands, Ralph Wilde (University College London), Prof. Pierre-
Marie Dupuy (University of Paris), The Guardian, 7 March 2003. Leading academics who
supported the war included Prof. Christopher Greenwood QC (London School of Economics),
The Guardian, 28 March 2003, and Dr. Ruth Wedgewood (Yale Law School), Financial Times,
13 March 2003.
4 In R (CND) v. Prime Minister and Secretaries of State [2002] EWHC 2759 the Campaign for Nuclear
Disarmament (CND) brought an application in the High Court for an advisory declaration as
to whether the U.K. government would be acting in breach of international law if it went to
Continued overleaf
3
4
the political question exception to what is traditionally justiciable.
5
In the
United Kingdom, the courts have also historically deferred to the government
in its conduct under its prerogative powers of foreign policy.
6
Nor could there
be any challenge to this act of war in the International Court of Justice.
7
Yet there has surely been no more important or far-reaching issue of law for
many years.
The very importance of the issue makes the topic especially daunting. All
the more so as I, as a common lawyer, do not pretend to any specialist expertise
in international law. The issue is also clouded by the various and often shifting
justifications which have been given for the armed invasion. This means that
the legal analysis has to range widely, if it is to confront all the variously stated
reasons for going to war.
Continued
war with Iraq on the basis of Resolution 1441 alone. The applicants argued that an advisory
declaration was necessary to ensure that the defendants had not misdirected themselves in
law on the question as to whether a further resolution was necessary. They reasoned that the
prohibition on the use of force was a peremptory norm of customary international law and, as
such, also a part of U.K. law and therefore within the common law jurisdiction of the court.
They argued that, as the case raised a pure question of law and did not require a consideration
of policy by the court, the matter was justiciable. The High Court expressly declined to
adjudicate the matter. In the U.S. case of Doe v. Bush No 03-1266 (1st Cir. 13 March 2003) a
group of Plaintiffs, including four anonymous U.S. soldiers and six members of the House of
Representatives, challenged the authority of the President and the Defense Secretary to wage
war on Iraq, absent a clear declaration of war by the U.S. Congress. The court dismissed the
suit under the doctrine of ripeness, holding that it was too soon to consider the issue as the
war had not yet commenced.
5 Colegrove v. Green 66 S. Ct. 1198. Under the political question doctrine courts will not decide
questions that have either been constitutionally committed to another branch of government,
or that are inherently incapable of judicial resolution. Matters of foreign policy are almost
always non-justiciable under this doctrine (Baker v. Carr 32 S. Ct. 691). However, the political
question doctrine is notoriously difficult and courts have not always taken the same approach
on the justiciability of war powers. Compare Berk v. Laird, 429 F.2d 302, 306 (2nd Cir. 1970)
and Dellums v. Bush, 752 F. Supp. at 1150 with Holtzman v. Schlesinger, 484 F.2d 1307, 1309-11
(2nd Cir. 1973) and Ange v. Bush, 752 F. Supp. at 512.
6 Council of Civil Service Unions and Others v. Minister for Civil Service [1985] AC 374. There are
some traditionally non-justiciable areas that are now considered by the courts. These include
the power to issue a passport (R v. Secretary of State for Foreign and Commonwealth Affairs ex parte
Everett [1989] 1 QB 811) and the prerogative of mercy (R v. Secretary of States for the Home
Department ex parte Bentley [1994] QB 349). Furthermore, the development of the public law
doctrine of legitimate expectations now permits a limited consideration of the exercise of a
discretion to exercise a prerogative power, such as the provision of diplomatic and consular
assistance to British nationals abroad (R (Abbassi) v. Secretary of State for Foreign and Commonwealth
Affairs [2003] UKHRR 76). However, the extent to which courts will consider matters of national
security continues to be very limited and great weight is given to the views of the executive
(Home Office v. Rehman [2001] 3 WLR 877, per Lord Steyn at 889). Foreign policy matters and
the deployment of the armed forces are not justiciable at all (R (Abbassi) v. Secretary of State for
Foreign and Commonwealth Affairs; R (CND) v. Prime Minister and Secretaries of State, supra, n. 4).
7 As the I.C.J. can only adjudicate cases in which the parties have a sufficient legal interest
(Ethiopia and Liberia v. South Africa (South West Africa Case), Second Phase, (1966) ICJ Reports
6), Iraq is the only state with locus standi to bring such a case. Iraq never signed the optional
clause acceding to the compulsory jurisdiction of the I.C.J. and in any case has no independent
government with sufficient standing to bring a case. Furthermore, the United States revoked
its signature to the optional clause in 1986. The United Kingdom is the only relevant state
which is a current signatory to the optional clause.
Articles
5
The principles underlying international law are not recognisably different
to those which exist in all civilised legal systems. They seek to foster liberty,
promote equality of participation, and to set boundaries to the pursuit of self-
interest. As with any system of law there are restraints and sanctions to protect
the community, including the use of force as a last resort.
In achieving these objectives in international law it is obviously necessary in
particular to restrain the actions of the most powerful nations. The founding
fathers of the United States knew, and indeed relied upon, their reading of
Emer de Vattel, writing in the middle of the 18
th
century, that in international
law:
Strength or weakness, in this case, counts for nothing. A dwarf is as much a man as a
giant is; a small Republic is no less a sovereign State than the most powerful Kingdom.
8
Thus it is not surprising that the underlying purposes of international law are
to ensure equal treatment and, where appropriate, to protect the weak against
the strong just as our own national systems of law seek to do domestically. This
was particularly significant in the case of the U.N. Charter which was negotiated
against a background of the ruthless and unjustified invasion of smaller states
by Germany, Japan and the Soviet Union. Not surprisingly, respect for
sovereignty and constraints on the unilateral use of armed force were
uppermost in the minds of the founders.
May I just briefly touch on a threshold argument that some who describe
themselves as practical realists would advance. What, they would say, is the
point of traversing old ground? The war in Iraq, so bravely and searingly
chronicled by brave journalists and able political commentators, now lies in
the past. It may have inflicted heart-rending casualties but at least it was short.
The Iraqis should think themselves fortunate that the indisputably vile regime
of Saddam Hussein was at last driven from power. In time there will be an
Iraqi government to replace the outgoing regime and to introduce democracy
to that country; the country may be unstable now, but we have to see it through.
So what is the point of raking over the embers?
Such appeals to so-called reality command in my view a swift and simple
riposte. International law, like the common law, is founded upon precedent.
A bad precedent should not be allowed to stand. This U.S. led action was
aimed at nullifying a rogue state. But the United States has identified other
rogue states as being part of what it regards as the axis of evil. These states
were identified as North Korea and Iran by President Bush in his State of the
Union speech in 2002.
9
Moreover, the United States has since identified Syria,
Cuba and Libya as being a threat.
10
So it becomes especially important to
8 Emer de Vattel, Le Droit des Gens (Leiden, 1758) translated in The Law of Nations (Washington,
Carnegie Institution Washington, 1916), p. 7, as quoted in Gerald Stourzh Alexander Hamilton
and the Idea of Republican Government (Stanford, Stanford University Press, 1970), p. 134.
9 States like these, and their terrorist allies, constitute an axis of evil, arming to threaten the
peace of the world. President George W. Bush, State of the Union speech before Congress,
29 January 2002.
10 In addition to Libya and Syria, there is a threat coming . . . [from] Cuba. U.S. Under Secretary
of State John Bolton, Beyond the Axis of Evil: Additional Threats from Weapons of Mass Destruction,
Remarks to the Heritage Foundation, Washington DC, 6 May 2002.
6
weigh up now whether the precedent is sound. In turn this engages the larger
geopolitical question of the extent to which the United Nations and other
international institutions such as the European Union can act as a check on
the hegemony of the United States.
The United States and Multilateralism
I do not use the word hegemony, or as a former French Foreign Secretary
would say hyper-puissance, in a perjorative sense.
11
We all owe a remarkable
debt, which it is right in time of widespread criticism of the United States we
should acknowledge, to the commitment of that remarkable country to a
pursuit of world order and peace. This is particularly so since the end of the
Second World War.
In marked contrast to the isolationism which followed the First World War,
the United States played a visionary role in creating the institutions forged at
the end of the Second World War. Let us recall some of their greatest
contributions. The Bretton Woods agreement with the creation of the
International Monetary Fund and the World Bank, and above all the
commitment of President Roosevelt to the creation of the United Nations.
The drive with which his widow, Eleanor, as the first U.S. ambassador to the
United Nations, shaped the Declaration of Human Rights, which in turn was
the inspiration for our own great European Convention of Human Rights.
The vision of General Marshall in financing the reconstruction of a Europe
broken and bankrupted by war, so creating the framework from which far-
sighted leaders of France and Germany could seek a historic reconciliation
through binding economic ties. The preservation through NATO of the
security of Europe against the ambitions of the former Soviet Union. Far-
flung conflicts to restrain perceived aggression, such as in Korea or, more
misguidedly, in Vietnam. The retaking of Kuwait from the invasion by Saddam
just over a decade ago.
In all this the United States was obviously acting out of enlightened self-
interest, but laced with a strong element of idealism. Some of its views and
actions were not always palatable to our country. It encouraged the dismantling
of our remaining empire, and undermined our unlawful and disreputable
Suez adventure. In all these actions it was, generally, a standard-bearer for
democracy and the rule of law. These ideals have prevailed in countries as
distant from each other as Spain, Portugal and the former Soviet Union and
its satellites. Thomas Jeffersons Empire of Liberty stretches more widely
than ever before.
It is perhaps no accident that in these 60 years of remarkable achievement
the United States was committed to the principles of multilateralism. During
the Cold War the concept of the preservation of the West against the Soviet
Union demanded a close-knit engagement with Europe. But there were always
11 Robert Kagan, Paradise and Power: America and Europe in the New World Order (London, Atlantic,
2003), p. 43.
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currents of thought in the United States which instinctively shied away from
an institutional approach and believed that the United States should pursue
more closely defined national interest.
12
The end of the Cold War, and with it
much of the justification for multilateralism, gave impetus to these views. The
refusal to ratify the Kyoto Convention on the environment, or to participate
in the International Criminal Court, and indeed the withdrawal from the Anti-
Ballistic Missile Treaty, are all illustrations.
13
The United States now feels freer
of constraint to act in what it considers to be its own best interests regardless
of the views of other countries. It sees itself, too, and rightly so, as having
in many ways wider responsibilities than any other countries for upholding
order whether in Asia or in the Middle East. These are not responsibilities
which Europe can fulfil. The United States has continued to commit more
than 3 per cent of its GDP to defence notwithstanding the end of the Cold
War, whereas Europe in pursuing the peace dividend has allowed its defence
spending to fall below 2 per cent. The U.S. military budget is about double
that of the other NATO countries put together.
14
On this basis the disparity of
power will grow.
All this is brilliantly brought out in a short and remarkable book by Robert
Kagan called Paradise and Power.
15
He points out cogently that the differing
perspectives of Europe and the United States reflect the military weakness of
Europe as compared with the power of the United States. For the weaker
Europe negotiation, diplomacy and international law are the only ways in
which their aims can be achieved. As he puts it: For Europeans the U.N.
Security Council is a substitute for the power they lack.
16
By contrast for the
United States it is a potential restraint on its clear ability to act alone to preserve
its national interest.
This dichotomy, which the events leading up to the Iraq war so graphically
highlighted, means that some wring their hands and ask whether anything
can be done to build checks and restraints on the United States. But this
seems far from easy. The Economist has recently pointed out that the American
population is growing faster and getting younger while the European
population declines and steadily ages.
17
The economic consequences of this
obviously favour the United States. The Economist has summarised it in these
terms: The long-term logic of demography seems likely to entrench Americas
power and to widen existing transatlantic rifts, providing a gloomy contrast
between youthful, exuberant, multi-coloured America and ageing, decrepit,
inward-looking Europe. All of which means that we have to rely on the
12 For example: The U.N. has become a trap. Lets go it alone. U.S. Senator Robert Taft, quoted
by Rep. James B. Utt, Congressional Record House, 15 January 1962.
13 The United States is a signatory to the Kyoto Protocol to the United Nations Framework
Convention on Climate Change (1997) but has never ratified it. The U.S. signature to the
Rome Statute of the International Criminal Court (1998) was formally renounced on 6 May
2002, and the United States formally withdrew from the Anti-Ballistic Missile Treaty (1972) on
13 December 2001.
14 [The U.S.] spends 3 per cent of its GDP on its armed forces, France and Britain around 2.5
per cent, Germany just 1.6 per cent. Undermining NATO? The Economist, 1 May 2003.
15 Kagan, supra, n.11.
16 Ibid, at p. 40.
17 Half a billion Americans? The Economist, 22 August 2002.
8
acceptability of evolving international law together with the underlying liberal
democratic values of the United States for a check on neo-conservative,
supremacist tendencies. There is, too, a growing realisation within the United
States that it cannot, and does not want to, undertake the task of policing the
world alone. In practical terms, the difficulties inherent in the long-term
occupation of a country highlights the need to engage other states and
multilateral institutions. The cost of war is much higher if pursued unilaterally,
as are the costs of reconstruction.
18
The need for wider participation in peace-
keeping and the value of U.N. involvement is now belatedly being realised.
Basis for the Invasion of Iraq
How do the rival arguments for the invasion of Iraq stand up? This demands
particularly close analysis. In part, as I have already mentioned, this is because
different arguments were advanced at different times for the waging of war.
At one time it appeared that reliance was placed on an imminent threat of the
use of weapons of mass destruction by Saddam Hussein on the United States
or its allies. Indeed, the now notorious government dossier of 24 September
asserted:
His military planning allows for some of the W.M.D. to be ready within 45 minutes of
an order to use them . . . Unless we face up to the threat . . . we place at risk the lives
and prosperity of our own people.
19
Later emphasis was placed on the importance of bringing humanitarian relief
against dictatorship to the people of Iraq.
20
Jack Straw stated:
For over two decades, Saddam Hussein has caused a humanitarian crisis in Iraq and
one which at least equals Milosevics worst excesses . . . Saddam has waged a war, but
a hidden one, against the Iraqi people.
21
18 The overall military cost of Iraq, on the assumption of a four-year occupation, has been
estimated at $150 billion. Reconstruction costs are more uncertain but could rise to the same
figure. This cost would be more greatly shared if there were wider international support. In
1999 the coalition to liberate Kuwait orchestrated by President Bush funded 80 per cent of the
overall costs. See Leal Brainard and Michael OHanlon, Financial Times, 6 August 2003.
19 Iraqs Weapons of Mass Destruction: The Assessment of the British Government (London, The Stationary
Office Ltd, 2002), p. 7: The policy of the United Kingdom Government . . . is related to the
threat which the Saddam Hussein regime poses to the rest of the world. And that threat comes
from its unlawful, unauthorised, wilful possession and development of weapons of mass
destruction. Jack Straw, interview on B.B.C. Radio 4, 13 September 2002.
20 This was never wholly explicitly put forward as a legal justification. The nature of Saddams
regime is relevant . . . because Saddam has shown his willingness to use [weapons of mass
destruction] . . . let us . . . not forget the 4 million Iraqi exiles, and the thousands of children
who die needlessly every year due to Saddams impoverishment of his country . . . [and the]
tens of thousands imprisoned, tortured or executed by his barbarity every year. Tony Blair,
H.C. Deb. 25 February 2003 c130; [This] is a war against Saddam because of the weapons of
mass destruction that he has, and it is a war against Saddam because of what he has done to
the Iraqi people. Tony Blair, interview with the B.B.C. World Service, 4 April 2003.
21 Jack Straw, Newspaper Society Annual Conference Speech, 1 April 2003.
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Yet later, the focus became the desirability of liberating that country and giving
it the opportunity of democratic government.
22
In a joint statement in April
George Bush and Tony Blair stated:
After years of dictatorship, Iraq will soon be liberated. For the first time in decades,
Iraqis will soon choose their own representative government . . . We will create an
environment where Iraqis can determine their own fate democratically and
peacefully.
23
What became totally clear was that the United Nations would not approve the
invasion of Iraq, at any rate until the weapons inspectors had been given a
significantly greater time to find out whether Iraq currently possessed such
weapons of mass destruction. So in March the United States and its allies
withdrew their proposed resolution seeking approval for the use of force,
because they knew the majority of the Council would reject it, including Russia,
Germany and France. They had to find some other way of justifying their
action in international law. So they fell back on the 12-year-old Resolution 678
of 1990, passed for the purpose of authorising the expulsion of Saddam Hussein
from Kuwait and the restoration of peace in the Middle East.
24
An old resolution
passed for a more limited purpose was ingeniously used as a cloak for the very
action which the United Nations would not currently countenance. To a
common lawyer, taking such a tortuous route to avoid the clear, current wish
of the United Nations seems, as Professor Robert Skidelsky has put it, straining
at a gnat.
25
But it was seriously advanced and needs consideration in a
little detail.
The Facts
What are the facts on which the government relied? I shall not spend time on
the so-called dodgy dossier of February 2003. It seems to have been conceived
in desperation, based on an old PhD research paper generated from the
Internet. It richly warranted Jack Straws frank admission that it was Horlicks.
What I shall focus on is the government dossier of 24 September 2002 and the
22 This was also not put forward explicitly as a legal justification. We know that most Iraqis want
to see political change in their country . . . The U.K. wants to help Iraq to achieve this. If we
are obliged to take military action, our first objective will be to secure Iraqs disarmament. But
our next priority will be to work with the United Nations to help Iraqi people recover from
years of oppression and tyranny, and allow their country to move towards one that is ruled by
law, respects international obligations and provides effective and representative government.
Jack Straw, International Institute of Strategic Studies Speech, 11 February 2003.
23 Tony Blair and George W. Bush, joint statement on Iraq, 8 April 2003.
24 Supra, n. 2. It was also suggested by the United States that they were acting under their inherent
right to self-defence in international law. Whereas Iraqs demonstrated capability and
willingness to use weapons of mass destruction, the risk that the current Iraqi regime will
either employ those weapons to launch a surprise attack against the United States or its Armed
Forces or provide them to international terrorists who would do so, and the extreme magnitude
of harm that would result to the United States and its citizens from such an attack, combine to
justify action by the United States to defend itself. Preamble to the Authorisation for Use of
Military Force Against Iraq Resolution of 2002 (H.J. Res. 114).
10
assessment by the two very experienced U.N. weapons inspectors, Dr. Hans
Blix and Dr. Mohamed El Baradei. The dossier contained the 45 minutes
claim. There is no doubt that this led to the widespread impression that our
country could be attacked on 45 minutes notice.
26
We now know that this was
simply wrong. The claim should have applied only to the deployment of
battlefield munitions. Yet the government did nothing to dampen down the
concern it created. Perhaps one day we will be told why it allowed this to start.
In as far as the Parliamentary Intelligence and Security Committee has said:
Saddam Hussein was not considered a current or imminent threat to mainland
U.K..
27
The whole thrust and purpose of the dossier at the time was to persuade us
that Saddam Husseins continuous breaches of U.N. resolutions called for
further action by the international community. It acknowledged the success
of weapons inspections between 1991 and 1998 in identifying and destroying
very large quantities of chemical weapons and associated production facilities.
It claimed that there had been an increase in capabilities to produce such
weapons since 1998, but also acknowledged that these facilities are capable of
dual use for petrochemical and biotech industries. It did not suggest that a
nuclear threat is less than a minimum of one or two years away.
What the dossier does not contend is also of some importance. It does not
suggest that Iraq has current links with Al Qaeda nor with the terrible assault
on the United States of 11 September 2001. Nor does it suggest that Saddam
has any present motive for launching an attack on any of his neighbours or
any current intent to do so. It fails to tell us that the Joint Intelligence
Committee had advised that an invasion of Iraq might increase the threat
from Al Qaeda.
The dossier concludes with an account of the tyrannical behaviour, in breach
of all human rights, of Saddam to his own people and highlights some of the
grisly Stalinesque details. It is sickening reading but no suggestion is made
that we have not known about this for years, nor any explanation offered as to
why action was not taken before. So the dossier may make out a case for a new
U.N. resolution such as 1441, but it nowhere argues that in the absence of
such international action there are reasons for the United States and the United
Kingdom to go it alone.
Nor did the information change between September 2002 and the fateful
week in March 2003 when the inspectors were recalled and we launched the
invasion. On the contrary, the authoritative reports of the weapons inspectors
confirmed the prior assessment. In February 2003 Dr. Hans Blix reported to
25 Robert Skidelsky, The American Contract, Prospect Magazine, July 2003.
26 The dossier was for public consumption and not for experienced readers of intelligence
material. The 45 minutes claim, included four times, was always likely to attract attention
because it was arresting detail that the public had not seen before . . .The fact that it was
assessed to refer to battlefield chemical and biological munitions and their movement on the
battlefield and not to any other form of chemical or biological attack, should have been
highlighted in the dossier. The omission of the context and assessment allowed speculation as
to its exact meaning. This was unhelpful to understanding the issue. Report of the Intelligence
and Security Committee, Iraqi Weapons of Mass Destruction, September 2003, p. 27.
27 Ibid, p. 31.
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the United Nations that there were now more than 250 inspectors in Iraq and
that although Iraqi cooperation had been less than full, access to sites had
been promptly given on demand. No weapons had yet been found and there
was as yet no firm evidence that they did or did not exist. He in no way suggested
that there was a continuing build up. He clearly saw his task in searching for
chemical and biological weapons as unfinished.
28
On the same day Dr.
Mohamed El Baradei repeated that by December 1998 the I.A.E.A. had
neutralised Iraqs past nuclear programme and had to date found no evidence
of ongoing prohibited nuclear or nuclear related activities in Iraq.
29
In summary the dossier and the later reports of the inspectors made out a
convincing case that the United Nations should insist on continuing with
inspections. But none of these facts made any case for the dramatic breaking
off of inspections, disregarding the United Nations and invading another
sovereign state with all the loss of life, civilian as well as military, destruction
of infrastructure and internal occupation which followed. No wonder Kofi
Annan said ahead of such action that it could not be in conformity with the
U.N. Charter.
30
Which brings us to the Charter itself.
The Charter
The opening line of the preamble of the Charter,
[W]e the peoples of the United Nations, determined to save succeeding generations
from the scourge of war . . .,
reflects a central purpose of the treaty: to ensure international peace and
security through collective action. The Charter seeks to achieve this by
outlawing the unilateral use of force except in self-defence, resolving
international disputes by peaceful means, promoting cooperation in solving
international economic, social, cultural and humanitarian problems, and
promoting respect for human rights.
The lynchpin of the Charter is Article 2(4) which prohibits the use or threat
of force in international relations in the following terms:
All members shall refrain in their international relations from the threat or use of
force against the territorial integrity or political independence of any state, or in any
other manner inconsistent with the purposes of the United Nations Charter.
The Charter permits only two exceptions to the prohibition. The first is
collective action authorised by, and only by, the Security Council acting under
Chapter VII. The second is the inherent right to individual or collective self-
defence as enshrined in Article 51 of the Charter. This strong protection against
the invasion of one country by another reflects the understandable reaction
28 Hans Blix, Report to the Security Council, 14 February 2003.
29 Mohamed El Baradei, Report to the Security Council, 14 February 2003.
30 [If] action is taken without the authority of the Council, then the legitimacy and support for
that action will be seriously impaired. Kofi Annan, Secretary-Generals press conference,
Brussels, 17 February 2003.
12
against the horrors inflicted before, and during, the Second World War.
Thus Articles 41 and 42 in Chapter VII lay down both the non-forceful and,
as a last resort, forceful measures that the Security Council may take to counter
threats to international peace and security. If the Security Council decides
that non-forceful measures under Article 41 are inadequate, Article 42 states
that it may take such action by air, sea, or land forces as may be necessary to
maintain or restore international peace and security. Article 51 contains the
sole, and limited provision, for one country or group of countries to go it
alone without prior Security Council backing. It states that Nothing in the
. . . Charter shall impair the inherent right to individual or collective self-
defence if an armed attack occurs against a Member of the United Nations.
I suspect that there are a comparatively large number of people who are
unclear as to the exact legal justification ultimately advanced by the government
for invading Iraq. So it is worth stressing that when it came to the point, the
U.K. government based its case on, and only on, U.N. Resolution 678 passed
as long ago as 1990, in conjunction with Resolution 1441 of 2002. There were
other potential legal arguments which would have seemed to be more in
harmony with the various political reasons advanced. In the end none of them
would have stood up in law. But they are worth looking at to show why the
government was driven to scrape the bottom of the legal barrel. These
arguments, which merit brief consideration, are fivefold: self-defence,
humanitarian intervention, implied authorisation, the unreasonable use of a
Security Council veto, and a breach of Resolution 1441.
Self-defence
There was a suggestion during the run up to war that we were going to invoke
our right to self-defence.
31
This was the impression created by the 45 minutes
31 It is right [to go to war] because weapons of mass destruction the proliferation of chemical,
biological, nuclear weapons and ballistic missile technology along with it are a real threat to
the security of the world and this country. Tony Blair, H.C. Deb. 15 January 2003 c682; This
resolution [1441] does not constrain any member state from acting to defend itself against
the threat posed by Iraq, or to enforce relevant U.N. resolutions and protect world peace and
security. Ambassador Negroponte, statement to Security Council, 8 November 2002; Preamble
to the Authorisation for Use of Military Force Against Iraq Resolution of 2002 (H.J. Res. 114),
quoted supra, n.24. However, arguments of self-defence were not in the end seriously advanced
in the United Kingdom. Although much time has been spent scrutinising the quality of the
government dossiers on Iraq, this is not an issue required to be analysed here. It seems to be
common ground that parts of the second dossier, published 3 February 2003, were plagiarised
from a PhD thesis. This implies that the government only presented information to the public
that it thought would justify the course of action it had chosen to take. [T]he significance of
intelligence lies not only in the information, be it empiric or uncorroborated conjecture,
which it is thought fit to put into this or that document, but more importantly what
interpretation is placed upon it . . . on the basis of the way in which whatever was said or
written was presented, the British people obtained the distinct impression that the threat
from Iraq was more massive and imminent than has since proved to be the case, or indeed
may ever have been. There were other tenable reasons which could have been used to justify
military force, but none which would have satisfied Parliament and the country as regards the
necessity and legality of such action. Field Marshall Lord Bramall, letter to The Times, 1 July
2003.
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claim. The right to self-defence is protected by Article 51 of the Charter.
32
The use of the word inherent in that Article indicates that it is the customary
international law right of self-defence that is preserved.
33
That doctrine was
formulated in the seminal case of The Caroline in 1841 when American Secretary
of State Daniel Webster wrote that there must be a necessity of self-defence,
instant, overwhelming, leaving no choice of means and no moment for
deliberation.
34
The element of necessity is to be determined by the claiming
state. But once force has been initiated its legality must be assessed by an
impartial body and not by the parties to the conflict.
35
The use of force in self-
defence must always be proportionate, that is, in the words of Webster, involving
nothing unreasonable or excessive, since the act justified by the necessity of
self-defence must be limited by that necessity and kept clearly within it.
36
Article 51 refers to the use of self-defence in the event of an armed attack.
This raises the question of when, if ever, a state may legally use self-defence in
advance of an attack. There is a school of academic thought that considers
that the wording of Article 51 precludes action in anticipation of an armed
attack, or anticipatory self-defence as it is known.
37
Anticipatory self-defence
was an accepted part of customary international law. But it maintained the
high standard of necessity enunciated in The Caroline. It required a threat to
be imminent before a defensive attack could be undertaken in anticipation of
32 Article 51, Charter of the United Nations 1945. Nothing in the present Charter shall impair
the inherent right of individual or collective self-defence if an armed attack occurs against a
Member of the United Nations, until the Security Council has taken measures necessary to
maintain international peace and security. Measures taken by members in exercise of this
right of self-defence shall be immediately reported to the Security Council and shall not in
any way affect the authority and responsibility of the Security Council under the present Charter
to take at any time such action as it deems necessary in order to maintain or restore international
peace and security.
33 Nicaragua v. United States of America ICJ Reports 1986 4, 94.
34 29 BFSP 1137-38. During a Canadian rebellion against British rule in 1837 insurgents used an
American ship to transport their supplies. In retaliation the British government sent a
detachment of troops to capture the ship. The troops burned the ship and set it adrift causing
the death of one man. It was during an exchange of conciliatory letters between the American
Secretary of State Daniel Webster and Lord Ashburton in 1841 that the principles of self-
defence were formulated.
35 Myres McDougal and Florentino Feliciano, Law and Minimum World Public Order (London,
New Haven Press, 1961), p. 230; Hersch Lauterpacht, The Function of Law in the International
Community (Oxford, Clarendon Press, 1933), pp. 177-182; DW Bowett, Self Defence in International
Law (Manchester, Manchester University Press, 1958), p. 193; Judgment of the International
Military Tribunal at Nuremberg, 1946, 1 TRIAL OF GERMAN MAJOR WAR CRIMINALS
BEFORE THE INTERNATIONAL MILITARY TRIBUNAL 208 (1947).
36 Supra, n.34.
37 Hans Kelsen, The Law of the United Nations (London, Stevens, 1950), pp. 269, 787-789; Ian
Brownlie, International Law and the Use of Force by States (Oxford, Clarendon Press, 1961),
p. 275; Simma (ed), The Charter of the United Nations: A Commentary (Oxford, Oxford University
Press, 1994), p. 676. For the opposite view see Bowett, Self-Defence in International Law, supra,
n.35, pp. 187-193; Stephen Schwebel, Aggression, Intervention and Self-Defence in Modern
International Law (1972-II) 136 Hague Rec 411, 479; McDougal and Feliciano, supra, n.35,
pp. 231-241.
14
it.
38
So the question at the heart of the debate is whether Article 51 qualifies
or restricts the wide scope of the customary law doctrine of self-defence.
39
Those who argue for a restrictive interpretation point out that anticipatory
self-defence is contrary to the wording of Article 51 as well as to the objectives
and purposes of the Charter. The imminence of an attack cannot usually be
easily assessed on objective criteria. So the decision of whether to undertake
such an attack would be left to the individual states discretion and this contains
a manifest risk of abuse.
40
Those who take the contrary view point out cogently
that the relinquishment or restriction of a right in international law should
not be presumed. So the mention of armed attack in Article 51 does not
necessarily mean that a state cannot act to forestall an imminent attack upon
it.
41
The French text, too, may be slightly wider when its speaks of agression
arme.
The capacity of modern weaponry equips many states with the capability to
strike almost without warning and with devastating consequences. So the better,
and more realistic, view is that the Charter does not prohibit the use of
anticipatory self-defence in all circumstances.
42
The requirements of necessity
and proportionality in these cases are obviously even more stringent than
when an attack has actually been launched.
A newer, and much more controversial, development in international law is
the doctrine of pre-emptive self-defence, advocated by the Bush administration
in its National Security Strategy of the United States in 2002.
43
This doctrine
is broader than anticipatory self-defence and seeks to adapt the concept of
imminent threat in order to counteract the dangers posed by rogue states
38 The Caroline Case, supra, n.34, was itself an example of anticipatory self-defence. The
International Military Tribunal for the Far East (1948) 994 found that the declaration of war
on Japan by the Netherlands in 1941 was a legitimate act of self-defence in response to an
imminent Japanese attack on the Dutch East Indies.
39 The customary law doctrine of self-defence is very wide, arguably including more controversial
rights such as the protection of nationals abroad, and the protection of certain vital economic
interests. Simma (ed), The Charter of the United Nations: A Commentary (Oxford, Oxford University
Press, 2002), p. 790.
40 This interpretation of the effect of Article 51 was also adopted by the International Court of
Justice in Nicaragua v. United States of America, supra, n.33, 103: in the case of individual self-
defence, the exercise of this right is subject to the state concerned having been the victim of
an armed attack. Reliance on collective self defence of course does not remove the need for
this.
41 Schwebel, supra, n.37.
42 Jennings and Watts (eds) Oppenheims International Law, 9th ed, (Harlow, Longman, 1992), pp.
421-422. See also Schwebel, supra, n.37, 481: Perhaps the most compelling argument against
reading Article 51 to debar anticipatory self-defence whatever the circumstances is that, in an
age of missiles and nuclear weapons, it is an interpretation that does not comport with reality.
Although this pragmatic approach is necessary in todays world, its dangers should not be
forgotten. The Brezhnev doctrine was a derivative of self-defence and resulted in the
annexations of Czechoslovakia in 1968 and Afghanistan in 1979. It is crucial that the boundaries
of self-defence are fiercely drawn or there is an unacceptable potential for abuse.
43 National Security Strategy of the United States (Washington, DC, The White House, 2002).
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and international terrorists.
44
This is a development that troubles many
international lawyers as the removal of the imminent threat criterion lowers
the threshold for the use of unilateral military action and may lead to the
escalation of violence in already volatile situations.
45
In some circumstances
regime change is a corollary of pre-emptive self-defence, and obtaining a new
regime in Iraq has been an official part of U.S. foreign policy since 1998.
46
Most states strongly oppose these developments believing rightly that such
policies pose too great a threat to state sovereignty. With such great
international opposition the policy of one state is not sufficient to create a
valid rule of international law. Neither regime change nor pre-emptive self-
defence can provide a legal justification for the use of military force in Iraq.
Nor, as I understand it, was it suggested in the end that it could.
Humanitarian intervention
The idea of humanitarian intervention has strong, understandable and
emotional support. Humanitarian intervention has been a notoriously
controversial doctrine since it was first advocated by Grotius in the 17
th
century.
47
But the prohibition on the use of force in Article 2(4) makes it very
unlikely that any customary international law right of unilateral humanitarian
intervention survived the Charter.
48
By contrast, under the auspices of the
United Nations, there have been several instances of multilateral intervention
on humanitarian grounds. These operations were authorised by the Security
Council exercising its powers under Chapter VII to counter threats to
international peace and security. The relief of famine in Somalia in 1992, the
44 We must adapt the concept of imminent threat to the capabilities and objectives of todays
adversaries, ibid, p. 19. This is because the nature of what [terrorists] do makes it difficult to
apply the imminent threat criterion, meaning that for the sake of security past practice and
knowledge of a threat will suffice. (James Steinberg, quoted in The Washington Lawyer, January
2003).
45 Rogue states, unlike terrorists, can be deterred from unwanted behaviour by other means,
including economic and diplomatic pressure. The Washington Lawyer, January 2003, p. 26.
46 Iraq Liberation Act (Public Law 105-338, 1998); Authorization for the Use of Military Force
Against Iraq (Public Law 107-243, 2002). W. Michael Reisman, Assessing Claims to Revise the
Laws of War 97 AJIL 82. However, regime change has never been part of British foreign policy,
nor was it submitted by the British government as a valid legal justification for war: is the
focus of this international coalition which we hope to put together regime change? Is that the
objective of the United Nations Security Council resolution? No. The whole focus is on the
disarmament of Saddam Husseins weapons of mass destruction. Jack Straw, interview on
B.B.C. Radio 4, 12 October 2002; I have never put the justification for action as regime change.
We have to act within the terms set out in resolution 1441 - that is our legal base. Tony Blair,
statement to the House of Commons, 18 March 2003.
47 Hugo Grotius, quoted in M.D.A. Freeman, Lloyds Introduction to Jurisprudence (London, Sweet
& Maxwell, 1994), 6th ed, p. 99.
48 Brownlie, supra, n.37, pp. 338-342; Natalino Ronzitti, Rescuing Nationals Abroad through Military
Coercion and Intervention on Grounds of Humanity (Boston, Hingham, 1985), p. 108; Lori Fisler
Damrosch in Damrosch and Scheffer (eds), Law and Force in the New International Order (Oxford,
Westview, 1991). Examples cited in academic works of a pre-Charter practice of humanitarian
intervention include France, Russia and the United Kingdoms intervention in the Ottoman
Empire to protect the Greeks in 1827 and to protect the Christians in Lebanon in 1860. See
Istvan Pogany (1986) 35 ICLQ 182.
16
intervention in the Rwandan genocide in 1994, and humanitarian operations
in East Timor in 1999 are all examples of this.
49
Outside of the United Nations state practice reveals few clear-cut examples
of humanitarian intervention before 1990. Indias intervention in East Pakistan
in 1971, Vietnams overthrow of the Khmer Rouge in Kampuchea and
Tanzanias ousting of the regime of Idi Amin in Uganda in 1979 all resulted,
in fact, in humanitarian relief. All three states however, preferred to justify
their action in terms of self-defence.
50
Likewise, U.S. led interventions in
Grenada in 1983 and in Panama in 1989 cited humanitarian concerns as
reasons for action, although it was not suggested that these concerns were
sufficient legal justifications.
51
Since 1990 there have been three occasions on which states have considered
humanitarian considerations to be a justification for the use of force. These
were the intervention of ECOWAS in the civil war in Liberia in 1990, the
imposition of safe havens and no-fly zones by the United States, the United
Kingdom and France to protect Iraqs ethnic minorities in the aftermath of
the first Gulf war; and NATOs bombing campaign in Serbia in 1999 to bring
a halt to ethnic cleansing in Kosovo.
52
The international response to such
initiatives has been mixed. Liberias intervention was retrospectively approved
of by the Security Council in Resolution 788 of 1992. The coalition in Iraq
received little outright condemnation, but there was also little international
support for the legality of the action. NATOs action was hotly contested by
49 S/RES/794 (1992) (Somalia); S/RES/918 (1994) (Rwanda); S/RES/1264 (1999) (East Timor).
50 India justified its action on the basis of self-defence following border incidents with East Pakistan
and a massive influx of refugees. It also cited humanitarian reasons and the right to self-
determination. Vietnam based its action on a tenuous argument of self-defence on the basis of
border incidents. It also cited humanitarian intervention as a justification. Tanzania based its
action on self-defence alone and did not use humanitarian justifications. Ronzitti, supra, n.48;
Tom Farer, An Inquiry into the Legitimacy of Humanitarian Intervention in Damrosch and Scheffer
(eds) supra, n.48.
51 Ruth Wedgewood, Unilateral Action in a Multilateral World in Forman and Patrick (eds)
Multilateralism and U.S. Foreign Policy: Ambivalent Engagement (London, Lynne Rienner, 2002).
52 ECOWAS cited four justifications for their actions: (i) the need to stop the large-scale killing
of civilians; (ii) the need to protect foreign nationals; (iii) the need for a regional organisation
to protect international peace and security in the region; (iv) the need to restore a measure of
order to an anarchic state. Final Communique of the ECOWAS Standing Committee and the
Committee of Five, paras 6-9, quoted in David Wippman, in Damrosch (ed) Enforcing Restraint:
Collective Intervention in Internal Conflicts (New York, Council of Foreign Relations Press, 1993).
The coalition in Iraq justified its action in part on S/RES/688 (1991) condemning Iraqi
repression of its civilian population, and also by reference to humanitarian considerations.
We operate under international law . . . International law recognises extreme humanitarian
need . . . We are on strong legal as well as humanitarian ground in setting up this no-fly zone.
Foreign Secretary Douglas Hurd, B.B.C. Radio 4s Today programme, 19 August 1991. NATO
expressly cited humanitarian intervention as a justification for its action. Our legal justification
rests upon the accepted principle that force may be used in extreme circumstances to avert a
humanitarian catastrophe. Defence Secretary George Robertson, H.C. Deb. 25 March 1999
c616-617; Belgium in particular, felt obliged to intervene to forestall an ongoing humanitarian
catastrophe . . . The purpose of NATOs intervention is to rescue a people in peril, in deep
distress. Serbia and Montenegro v. Belgium, Belgian Oral Pleading, Verbatim Record, 10 May
1999.
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several states, and caused the International Court of Justice to express
concern.
53
In the United Kingdom, the Foreign Affairs Committee concluded
that: NATOs military action, if of dubious legality in the current state of
international law, was justified on moral grounds.
54
This examination of state practice reflects an evolving human rights culture
in international law. This is reflected in the proliferation of treaties and
international judicial fora designed to protect and enforce those rights. Some
states, including the United Kingdom, are taking a more expansionist and
interventionist approach to international law.
55
The F.C.O. has laid down
guidelines in the hope of building an international consensus as to when a
state should intervene in the affairs of another sovereign state on humanitarian
grounds. One of these principles is that:
When faced with an immediate and overwhelming humanitarian catastrophe and a
government that has demonstrated itself unwilling or unable to prevent it, the
international community should take action.
56
These developments suggest that a doctrine of humanitarian intervention
may be developing. It is, however, clear that any such legal doctrine is still
evolving. The growing sympathy for such a right should surely shape the actions
of the United Nations rather than leaving individual states to apply their own
judgment of when they should intervene.
The humanitarian situation in Iraq in March 2003, grim though it was for
the Iraqis, was not claimed by the government to amount to an overwhelming
humanitarian catastrophe as required by the F.C.O. criteria. Even if a right
to humanitarian intervention had developed in international law, it would
not have applied to Iraq any more than to any of the arbitrary tyrannies which
sadly still exist. There are many who consider that, when it comes to removing
Saddam Hussein, the end justified the means, indeed, would justify almost
any means. This instinct is all too understandable. But surely it would be a
most dangerous path to embark on. Careful criteria would need to be
established to ensure that the oppressed are liberated in all cases of need,
53 Russia, China, The FRY, Namibia, Brazil, Cuba, Belarus, Ukraine, India and Mexico expressed
their disapproval of NATO action in Kosovo as being unlawful. Furthermore, Slovenia, Malaysia,
Argentina, Bahrain, Gabon, Gambia, Costa Rica, Iran and Albania emphasised the central
role of the Security Council in authorising the use of force. 4011th Security Council Meeting,
10 June 1999. The International Court of Justice stated that: the Court is profoundly concerned
with the use of force in Yugoslavia . . . the Court deems it necessary to emphasise that all
parties appearing before it must act in conformity with their obligations under the United
Nations Charter and other rules of international law, including humanitarian law. Serbia and
Montenegro v. Belgium, Request for Indication of Provisional Measures, Order of 2 June 1999,
paras 17, 19.
54 Fourth Report from the Foreign Affairs Committee, Kosovo, Session 1999-2000, para 138. The
Government responded that it: is . . . satisfied that it [the war in Kosovo] was legally justified.
Fourth Report from the Foreign Affairs Committee, Kosovo, Session 1999-2000, Response of
the Secretary of State for Foreign and Commonwealth Affairs, August 2000, p. 8.
55 Tony Blair, Doctrine of the International Community, Economic Club, Chicago, 24 April 1999:
We are all internationalists now, whether we like it or not . . . We cannot turn our backs on
conflicts and the violation of human rights within other countries if we want still to be secure
. . . We are witnessing the beginnings of a new doctrine of international community . . . the
principle of non-interference must be qualified in important respects.
56 Human Rights, F.C.O. Annual Report 2001 (London, The Stationary Office Ltd, 2001), p. 138.
18
regardless of whether their state is rich in oil or diamonds. We must be careful
when celebrating the demise of Saddam Hussein not to create a dangerous
precedent in which any unilateral military action may be condoned when one
of its consequences happens to be humanitarian relief.
57
It is U.N. decisions
and their implementation which should be the rock on which the international
community sets its feet when it intervenes on humanitarian grounds.
Implied authorisation
It is sometimes argued that the existence of Security Council approval to use
force can be implied from prior Security Council decisions without having to
obtain explicit permission. Advocates of this approach argue that it is politically
convenient because it enables states to act at times when minimum world
order requires that action be taken, but there are geopolitical factors in play
which prevent express Security Council authorisation.
58
In practice, there have been several instances when states have relied on
arguments of this kind. These include: Indias seizure of Goa from Portugal
in 1961;
59
the U.S. interdiction of ships on route to Cuba in 1962;
60
the
protection of safe-havens and enforcement of no-fly zones by the U.S. led
coalition in Iraq in 1991;
61
and most recently, NATOs campaign in Kosovo in
57 Furthermore, as Lord Wright notes in his letter to The Times: There is no doubt that these
discoveries [of mass graves] apparently of Iraqis slaughtered by Saddam Husseins regime
shortly after the 1991 Gulf War, add further confirmation, if confirmation were needed, of the
appalling nature of Saddam Husseins tyranny, and might well be argued to be justification
for taking action against Iraq at that time. But they do not, in my view, affect the repeated
claims of the British Government that the sole aim of the present coalition against Iraq was to
remove Iraqs weapons of mass destruction none of which have been found. Patrick Wright,
Head of HM Diplomatic Service 1986-1991, House of Lords.
58 There is a subtle interplay of politics that renders any demand for unambiguous authorisation
unrealistic. Anthony DAmato, Israels Airstrike on the Iraqi Nuclear Reactor 77 AJIL 584, 586.
59 India argued that it was enforcing U.N. resolutions against colonialism. A draft resolution
complaining of Indian aggression and demanding Indian withdrawal was vetoed by the Soviet
Union, and another rejecting the Portuguese complaint failed to pass. In these circumstances,
Council silence suggests implied disapproval and not authorisation. Quincy Wright, The
Goa Incident 56 AJIL 617, 629.
60 The United States argued that it had implied Security Council authorisation to interdict ships
on route to Cuba on the basis that the Council had not voted on a Soviet resolution disapproving
the U.S. action and had encouraged a negotiated settlement. However, the Security Council
also refrained from acting on a U.S. draft resolution that would have expressed approval of
U.S. action.
61 This action was based on S/RES/688 (1991), not passed under Chapter VII, calling on Iraq to
end its repression of its civilian population. It was passed 10 votes to 3 (Cuba, Yemen, Zimbabwe)
with two abstentions (China, India). The Secretary-General criticised the coalitions action
saying that Iraqs consent was necessary for such consent to be legal (Keesings Record of World
Events, (1991), p. 38126).
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1999.
62
Most of these instances have been strongly contested by other states.
63
The practice does not amount to a constant and uniform usage practiced by
the states in question required to establish a customary norm in international
law.
64
A short examination of the implied authorisation argument reveals its fallacy.
First, it is inconsistent with the principles and purposes of the U.N. Charter.
From reading Article 1 it is clear that the basic premise of the collective security
system is that force should only be undertaken jointly and in the interests of
the international community as a whole. A system that allows states unilaterally
to decide when a use of force is or is not in the interests of the international
community is dangerously vulnerable to abuse. The only way to ensure that
military action is truly collective is if it is expressly authorised by the Security
Council. But implicit authorisation would entail the interpretation of the
words and actions of members of the Security Council said and done in a
highly political context.
65
This is at best ambiguous, at worst a fig-leaf giving
the powerful states carte blanche to act as they wish, justified by the creative
interpretation of past Security Council practice.
66
Secondly, the Charter requires the Security Council to consider whether
non-forceful measures would be an appropriate solution to the problem before
authorising the use of force.
67
For force is a last resort. This requirement is
devalued, if not completely ignored, under the doctrine of implied
authorisation. Some advocates of implied authorisation suggest that the failure
of the Security Council to condemn an action is a tacit approval of it.
68
This is
a similar argument to that advanced by the Attorney-General that Resolution
1441 would have expressly stated if a further resolution was necessary for force
62 This action was based the following resolutions, all taken under Chapter VII. S/RES/1160
(1998) noting a threat to international peace and security; S/RES/1199 (1998) expressing
alarm at the impending humanitarian catastrophe; S/RES/1203 (1998) finding a threat to
international peace and security arising from the situation in Kosovo. A draft resolution
condemning NATO action was rejected 12 votes to 3 (Russian Federation, FRY, Namibia).
Belgium stated before the International Court of Justice that: as regards the intervention . . .
Belgium takes the view that the Security Councils resolutions . . . provide an unchallengeable
basis for the armed intervention. Serbia and Montenegro v. Belgium, Request for Provisional
Measures, Oral Pleadings, 2 June 1999.
63 Jules Lobel and Michael Ratner, Bypassing the Security Council: Ambiguous Authorisations to Use
Force: Cease-fires and the Iraqi Inspection Regime, 93 AJIL 124, 133.
64 Columbia v. Peru (Asylum Case) (1950) ICJ Reports 266, 276-277.
65 Lobel and Ratner, supra, n.63.
66 Furthermore, as Christine Gray points out: there is a serious risk that the Security Council
will become reluctant to pass resolutions under Chapter VII condemning state action if there
is a possibility that such resolutions might be claimed as implied justification for some regional
or unilateral use of force. International Law and the Use of Force (Oxford, Oxford University
Press, 2000), p. 195.
67 Articles 33, 41, 42 Charter of the United Nations (1945).
68 For example the United States used this argument to justify its blockade on Cuba. Abram
Chayes, Law and the Quarantine of Cuba, 41 Foreign Affairs 550, 556. DAmato takes the
argument further and argues that implicit support can even be derived from a Security Council
resolution condemning an action so long as it does not impose sanctions: It is often politically
expedient for the community to condemn a forceful initiative in explicit terms, yet approve of
it in fact by stopping short of reprisals against the initiator. Anthony DAmato, International
Law: Process and Prospect (New York, Transnational Publishers, 1987), p. 78.
20
to be authorised.
69
Given the veto power of the permanent five members, this
line of argument is unconvincing. It is also conceptually misconceived. It
suggests that the Security Council must denounce an action in order to render
it illegitimate. But this argument is an attempt to stand on its head the clear
prohibition in Article 2(4) on the unilateral invasion of sovereignty.
Unreasonable Security Council veto
In the debates before the war, the Prime Minister several times suggested that
an unreasonable use of the veto in the Security Council would somehow allow
members of the United Nations to act unilaterally without express
authorisation.
70
This is a variation of a theory, expressed in academic literature,
that the inability of the Security Council to fulfil its collective security role
restores the right of each member state to act unilaterally.
71
This concept has
no basis in international law.
72
The use of the veto is a legitimate exercise of
Security Council procedure under Chapter V of the Charter. The United
Kingdom has itself used its veto 32 times since 1945.
73
A doctrine that enables
one member to bypass the requirement of Security Council authorisation by
unilaterally deeming a use of the veto to be unreasonable is dangerously
subjective, and poses an unacceptable risk that the Security Councils monopoly
on the authorisation of the use of force will be undermined.
Breach of Resolution 1441
Resolution 1441 was the freshest, and most immediate, resolution in force at
the time of the invasion. Yet there has been no suggestion that Resolution
1441 justified the invasion. Why? Because Resolution 1441 did not expressly
authorise force.
74
The collective security system requires that the authority to
use force, which is the most serious and deadly means of enforcement, can
69 Supra, n.2.
70 Of course we want a second resolution and there is only one set of circumstances in which
Ive said that we would move without one . . . that is the circumstances where the U.N. inspectors
say hes not cooperating and hes in breach of the resolution that was passed in November but
the U.N., because someone, say, unreasonably exercises their veto and blocks a new resolution
[sic]. Tony Blair, B.B.C. Breakfast with Frost, 26 January 2003.
71 Julius Stone, Aggression and World Order (London, Stevens, 1958), p. 96: any implied prohibition
on Members to use force seems conditioned on the assumption that effective collective measures
can be taken under the Charter to bring about adjustment or settlement in conformity with
the principles of justice and international law. It is certainly not self-evident what obligations
(if any) are imported where no such effective collective measures are available for the remedy
of just grievances. For the opposite view, see Ian Brownlie, Thoughts on Kind-Hearted Gunmen
in Lillich (ed) Humanitarian Intervention and the United Nations (Charlottesville, University Press
of Virginia, 1973), p. 139, 145.
72 The Prime Ministers assertion that in certain circumstances a veto becomes unreasonable
and may be disregarded has no basis in International Law. Bernitz et al, supra, n.3.
73 Rabinder Singh, Legal Briefing Given to MPs, 12 March 2003.
74 The Security Council diplomatic convention is to authorise force using one of the following
phrases: all necessary means S/RES/678 (1990), S/RES/794 (1992), S/RES/940 (1994),
S/RES/929 (1994); all measures necessary S/RES/770 (1993); and all necessary measures
S/RES/1264 (1999).
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only be conferred by unambiguous means.
75
The graver the consequences,
the clearer must be the words providing for them. No one has suggested that
Resolution 1441 contains such clear language. Indeed a draft resolution
containing the phrase all necessary means, the diplomatic code for the
authorisation of force, was rejected by members of the Security Council in
early October 2002.
76
The parties to 1441 all recognised that there was no
automaticity of consequences and that the issue would have to come back
to the Council which was to remain seized of the matter.
77
It was later
suggested somewhat faintly that the further consideration mentioned in
1441 meant that there would simply be a report and a debate without the
Security Council determining what the serious consequences should be.
If that was so, it is far from clear why the United States and the U.K.
government worked so hard to sponsor a second resolution to spell out the
consequences of Iraqs failure to comply. It was only the realisation that a
second resolution would not get through which led the United States and the
United Kingdom to change tack and to look for some other basis in
international law which allowed them to invade Iraq. They alighted upon
Resolution 678. It was their only lifeline. For it is recognised that nothing
short of a statement of the right to use all necessary means or all necessary
force would be sufficiently unambiguous as to allow the extreme step of
engaging in armed hostilities or invasion.
78
None of the subsequent resolutions,
including 1441, gave such a mandate.
Does Resolution 678 justify the invasion of Iraq in 2003?
There has been a long-standing tradition that the U.K. government rarely, if
ever, discloses the advice of the Attorney-General or indeed, whether he has
advised at all.
79
But on this occasion, in a Parliamentary Answer, Lord Goldsmith
QC published his advice in summary form. Because of its importance and its
brevity it is convenient to set it out in full:
Authority to use force against Iraq exists from the combined effect of Resolutions
678, 687 and 1441. All of these resolutions were adopted under Chapter VII of the
U.N. Charter which allows the use of force for the express purpose of restoring
international peace and security:
75 Lobel and Ratner, supra, n.63.
76 U.S./U.K. Draft Security Council Resolution, leaked to the Financial Times, 2 October 2002. It
was circulated to other Security Council permanent members but was never formally tabled.
77 Ambassador John Negroponte, statement to Security Council, 8 November 2002; Ambassador
Sir Jeremy Greenstock, statement to Security Council, 8 November 2002; Joint statement by
China, Russia and France, 8 November 2002.
78 Supra, n.74.
79 Whether or not to disclose the opinions of the Law Officers is a matter of discretion on the
part of the government. There is no obligation to divulge such advice as to do so might inhibit
the frankness and candour with which the advice was given, or cause a Law of Officer to be
criticised for a policy for which the Minister is rightly responsible (see John Ll. J. Edwards, The
Law Officers of the Crown: a study of the offices of the Attorney General and the Solicitor General, with an
account of the office of the Director of Public Prosecutions in England (London, Sweet & Maxwell,
1964). See also post, Part III, p. 418.
22
1. In Resolution 678 the Security Council authorised force against Iraq, to eject it
from Kuwait and to restore peace and security in the area.
2. In Resolution 687, which set out the ceasefire conditions after Operation Desert
Storm, the Security Council imposed continuing obligations on Iraq to eliminate
its weapons of mass destruction in order to restore international peace and security
in the area. Resolution 687 suspended but did not terminate the authority to use
force under Resolution 678.
3. A material breach of Resolution 687 revives the authority to use force under
Resolution 678.
4. In Resolution 1441 the Security Council determined that Iraq has been and
remains in material breach of Resolution 687, because it has not fully complied
with its obligations to disarm under that resolution.
5. The Security Council in Resolution 1441 gave Iraq a final opportunity to comply
with its disarmament obligations and warned Iraq of the serious consequences
if it did not.
6. The Security Council also decided in Resolution 1441 that, if Iraq failed at any
time to comply with and cooperate fully in the implementation of Resolution
1441, that would constitute a further material breach.
7. It is plain that Iraq has failed so to comply and therefore Iraq was at the time of
Resolution 1441 and continues to be in material breach.
8. Thus, the authority to use force under Resolution 678 has revived and so continues
today.
9. Resolution 1441 would in terms have provided that a further decision of the
Security Council to sanction force was required if that had been intended. Thus,
all that Resolution 1441 requires is reporting to and discussion by the Security
Council of Iraqs failures, but not an express further decision to authorise force.
80
The Foreign Secretary also provided to many parliamentarians a longer F.C.O.
advice which was to the same effect.
What is not known is whether the Attorney-General had given any fuller
advice. In response to my request that he should disclose his full advice he
retreated behind the arras and claimed that his Parliamentary Answer was an
exception to the usual convention and so we were not entitled even to know
whether he had advised more fully or, if so, in what terms.
81
This leaves us in
doubt as to the extent to which he considered at all the cogent arguments
which had been advanced against his view. Did he examine how, since there is
no doctrine of implied authorisation, the quaint concept of the revival of
Resolution 678 was possible? Did he deal with the issues of necessity and
proportionality, given that the inspectors had reported nothing concrete and
were asking for more time? Did he grapple with the persuasive arguments
advanced against the war by the majority of distinguished international lawyers
who expressed a view? Did he explain how the United States and this country
could act on their own because of Iraqs breach of resolutions rather than, as
is normal, the United Nations authorising the appropriate action? Perhaps
even more fundamentally, what were the facts he assumed for the purpose of
his advice?
What does appear to be clear is that neither the F.C.O. opinion nor the
Parliamentary Answer set Resolution 678 in its context. This was the invasion
80 Supra, n.2.
81 Letter to the author from the Attorney-General Lord Goldsmith QC, 21 May 2001.
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in August 1990 of Kuwait by Iraq. The United Nations responded by passing
Resolution 660 the very same day. This determined that there exists a breach
of international peace and security as regards the Iraqi invasion of Kuwait
and demanded the immediate and unconditional withdrawal of Iraqi forces.
The nature of the issue was defined at the outset and was to be the expulsion
of the Iraqi invaders from Kuwait. Four days later on 6August, Resolution 661
stressed the determination to bring the invasion and occupation of Kuwait
by Iraq to an end and affirmed the inherent right of individual or collective
self-defence under Article 51 of the Charter. Sanctions were imposed on Iraq
to achieve this clear but limited objective. This was reinforced by a decision
to keep this item on its agenda and to continue its efforts to put an early end
to the invasion by Iraq.
This was the background for Resolution 678 almost four months later on
29 November. This resolution authorised member states, unless Iraq withdrew
by 15 January 1991, fully to implement those resolutions and to use all
necessary means to uphold and implement Resolution 660 and all subsequent
relevant resolutions, and to restore international peace and security in the
area. So Resolution 678 was always firmly anchored to implementing
Resolution 660 and so to driving Iraq from Kuwait.
By 2 March 1991 the military action to end the invasion had been successful.
Resolution 686 then confirmed all the previous resolutions on the issue and
demanded essentially that Iraq should implement its withdrawal, provide
appropriate compensation and return Kuwaiti property. There are two other
interesting points which arise from this resolution. The first is that it affirms
the commitment of all member states to the independence, sovereignty and
territorial integrity of Iraq and Kuwait. Resolution 686 also referred to the
fact that allied forces were present temporarily in some areas of Iraq. The
resolution also recognised that during the period required for Iraq to comply
. . . the provisions of paragraph 2 of Resolution 678 remain valid. In other
words it was a temporary provisional cease-fire. This resolution is a cogent
further indication of the limited purpose of Resolution 678. I do not believe
that any of the political leaders at that time contemplated that Resolution 678
would justify waging wholesale war on Iraq in order to secure a regime change.
Indeed, the leading actors in that drama said so clearly. George Bush senior
has written that: Going in and occupying Iraq, thus unilaterally exceeding
the United Nations mandate, would have destroyed the precedent of
international response to aggression that we hoped to establish.
82
General
de la Billire, Commander of the British Forces during the first Gulf
war, wrote: We did not have a mandate to invade Iraq or take the country
over . . .,
83
and John Major has said: Our mandate from the United Nations
82 George Bush (Senior) and Lieutenant General Brent Snowcroft, A World Transformed, (New
York, Knopf, 1998).
83 General Sir Peter de la Billire, Storm Command (London, Harper Collins, 1995), p. 304.
24
was to expel the Iraqis from Kuwait, not to bring down the Iraqi regime.
84
Nothing could be plainer or more statesmanlike.
So we come to Resolution 687 on 3 April 1991. Again this resolution also
affirms the sovereignty, territorial integrity and political independence of . .
. Iraq. It also widens the obligations on Iraq because it requires Iraq in effect
to accept the destruction, removal or rendering harmless of chemical and
biological weapons and ballistic missiles with a range greater than 150
kilometres. It set up a regime for the provision of information and inspection.
It provided for a formal or permanent cease-fire and that the United Nations
could take such further steps as may be required to implement the present
resolution and to secure peace and security in the area. There was the specific
provision enabling all necessary measures which clearly would have included
force, to guarantee the inviolability of the boundary between Kuwait and Iraq.
But in sharp contrast there was no provision at all in this resolution for the
use of force to enforce the disarmament obligations. Nor has there been any
subsequent resolution that provided for the use of force against Iraq. Hence
the government desperately trawled way back to Resolution 678 to find a flag
of convenience, a flag disowned by Kofi Annan.
85
But the flag simply cannot
fly.
The language of 660 was restrictive, clearly designed to achieve the end of
the Iraqi invasion of Kuwait. Resolution 678 was backing this resolution by the
potential use of force. Resolution 660 was complied with. Resolution 678 was
contemplated as only remaining in force until the consequences of the Iraqi
invasion of Kuwait had been dealt with. Resolution 687 introduced the wider
and distinct issue of weapons of mass destruction. It gave no comfort to the
use of force to achieve this aim and specifically contemplated that the United
Nations, and not any member countries acting unilaterally, would remain in
charge of the issue, as was cogently argued by Rabinder Singh QC and Charlotte
Kilroy in one of their impressive opinions on the conflict. The suggestion that
the authority to use force revives like spring flowers in the desert after rain,
84 Our mandate from the United Nations was to expel the Iraqis from Kuwait, not to bring
down the Iraqi regime . . . We had gone to war to uphold international law. To go further than
our mandate would have been, arguably, to break international law. John Major, speaking at
Texas A&M University 10th Anniversary celebrations of the liberation of Kuwait, 23 February
2001. See also the testimony of Assistant Secretary of State John Kelley and Assistant Secretary
of Defence Henry Rowen before the Europe and Middle East Sub-Committee of the House
Comm. on Foreign Affairs, Federal News Service, 26 June 1991, at 151, available in LEXIS
news library, Fednew File, cited in Lobel and Ratner, supra, n.63, at n.61. This proposition has
also been recognised by the current Foreign Secretary: the reason the United States did not
continue on to Baghdad was because the United States and the other coalition allies felt they
did not have a legal mandate for this; the legal mandate they had was to free Kuwait and then
to deal with WMD, not to take over the state of Iraq. Jack Straw, evidence to the Foreign
Affairs Committee, 4 March 2003.
85 Supra, n.30. It is hard to see how a resolution passed 12 years ago can validate military action
that was actively opposed and would have been vetoed by at least one, probably three, members
of the permanent five in the Security Council, and whose legitimacy has been questioned by
the Secretary-General.
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to be invoked by the United States and the United Kingdom contrary to the
wishes of the Security Council, is risible.
86
Nor does it find any support in
international law.
The suggestion that the violation of a cease-fire agreement authorises the
other party to use force appears to be based on pre-charter customary law.
Under the Hague Regulations 1907 a party was released from its obligations
under an armistice agreement when the terms were violated by the other
party.
87
Cease-fires, the term being relatively modern, are not dealt with
under these rules but are generally treated as being synonymous with
armistices.
88
These rules are almost 100 years old and have certainly been
modified, if not completely supplanted, by the U.N. Charter. For it remains
the case that all non-defensive uses of force must be authorised by the Security
Council, even if the use of force is a reprisal for the violation of the terms of a
cease-fire.
89
In 1948, in response to violations by both sides of the Israel/
Egypt armistice, the Security Council passed a resolution stating that: no
party is permitted to violate the truce on the ground that it is undertaking
reprisals or retaliations against the other party.
90
In 1955 and 1956 South
Korea argued at the United Nations that North Korean and Chinese violations
of the North Korea Armistice Agreement (1953) warranted a termination of
the armistice and the resumption of hostilities. This was a position that no
other state adopted.
91
Once a cease-fire is in place it is the Security Council
alone that must determine whether its terms have been complied with and, if
they have not, whether the use of force is an appropriate response.
92
This
chimes in with the underlying purpose of the Charter that force must be used
in the interests of the community as a whole and with U.N. authority. The
unreality of the reliance on Resolution 678 was summed up by Michael P.
Scharf, the former Attorney Advisor for the United Nations Affairs at the U.S.
Department of State: It is . . . significant that the administration of Bush the
86 [The Security Council] decides to remain seized of the matter and to take such further steps
as may be required for the implementation of the present resolution and to secure peace and
security in the area, S/RES/687 (1991). Rabinder Singh and Charlotte Kilroy, In the Matter of
the Potential Use of Armed Force by the U.K. Against Iraq, Further Opinion for the Campaign for
Nuclear Disarmament, 23 January 2003.
87 Hague Regulations 1907, Article 40. Any serious violation of the armistice by one of the
parties gives the other party the right of denouncing it, and even, in cases of urgency, of
recommencing hostilities immediately.
88 Cease-fire is a term used by the United Nations. It is used interchangeably with armistice.
Sydney D. Bailey, How Wars End, Vol. 1 (Oxford, Clarendon Press, 1982); Yoram Dinstein, War,
Aggression and Self Defence, (Cambridge, Grotius, 1988), p. 48.
89 Richard R. Baxter, Armistices and Other Forms of Suspension of Hostilities, Rec. des Cours, 149
(1976-I0) 355, 382; David Morris, From War to Peace: A Study of Ceasefire Agreements and
the Evolving Role of the United Nations 36 VJIL 802, 822-3 (1996); Christine Gray, After the
Ceasefire: Iraq, the Security Council and the Use of Force, 65 BYIL 135, 143; Lobel and Ratner,
supra, n.63, 142.
90 S/RES 56 (1948).
91 Unified Command Report on the Neutral Nations Supervisory Commission in Korea, U.N.
Doc. A/3167 (1956) UNYB 129, 130.
92 It seems self-evident that a cease-fire that is negotiated, drafted and signed under the aegis of
the United Nations will also be policed and enforced by the United Nations. This is consistent
with the clear and consistent philosophy of the U.N. Charter that only the Security Council
may authorise non-defence uses of force.
26
elder did not view Resolution 678 as a broad enough grant of authority to
invade Baghdad and topple Saddam Hussein. It is ironic . . . that the current
Bush administration would now argue that this Resolution could be used ten
years later to justify a forcible regime change.
93
Conclusion
The last time the United Kingdom waged a war of aggression was almost 50
years ago during the brief Suez adventure. It was my first term as an
undergraduate. Sir Anthony Eden, as is the case with Tony Blair, was not by
temperament a warmonger. He had only shortly before refused the request
of John Foster Dulles, the U.S. secretary of state, that our countries should
together intervene militarily in Indo-China and instead had brought that
dispute to a temporary settlement at Geneva. In the first months of the Suez
crisis he sought to act through the United Nations and with wide international
support. Similarly Tony Blair insisted for months that we should act through
the United Nations, subject only to the novel suggestion that we could ignore
an unreasonable veto.
Then in 1956, just as in the build up to Iraq, there was a dramatic change of
gear. The United Kingdom invaded Egypt with the nation, including
undergraduates who like me were nave enough to trust our government,
blissfully unaware of the infamous Svres agreement providing secretly that
Israel should invade and that France and the United Kingdom should then
intervene to stop them. In the case of Iraq I shall never forget being in the
United States in March 2003 and watching with dismay as events unfolded.
We learnt that the proposed further resolution was to be withdrawn because
of lack of support. The inspectors had their work in Iraq summarily terminated.
The leaders of the United States and the United States travelled to the bizarre
location of the Azores and delivered their ultimatum for regime change, and
three days later launched the invasion. All this change of approach in a single
week. We can only speculate why they did so in so much haste. The most
probable reason is that the troops were there and were to be deployed before
the summer heat of the Middle East. We will not know for a very long time
whether there was any substance in Claire Shorts assertion that the Prime
Minister had committed himself way back last year to supporting the United
States even if the United Kingdom declined its backing. If so, there would be
another deeply dark parallel with Suez.
There is undoubtedly one more parallel. The strength of the United States
was in each case decisive. At Suez, influenced by presidential electoral
considerations, the United States declined its support and we had to withdraw.
In Iraq it was the United States that similarly called the shots, but this time as
the promoter of war.
What are the lessons for the future? The first is positive. The U.K.
government apparently accepts that it must act in accordance with inter-
national law, even although its arguments were flawed and most experts doubt
93 International Bar News, International Bar Association, March 2003.
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the lawfulness of what it did in our name. The second too is positive. The
United States is, for the future, the only world power which can act unilaterally
and its values and commitment to democracy make it the least undesirable
supreme power. But while we are thankful for this, we should also be wary.
The bi-polar world, in which the Soviet Union had an effective veto on U.S.
action when it threatened the balance of world power, has collapsed. To create
a new multilateralism is not easy. It would, or so it seems to me, not require
change to the U.N. Charter to allow U.N. sanctioned intervention to prevent
genocide and humanitarian disaster. Nor would it require any change to allow
the United Nations to act to prevent the proliferation of weapons of mass
destruction.
For the United Kingdom, I would only offer two suggestions. The first is
practical, which is that we should seek to influence the United States through
Europe, which was at all times supportive of Resolution 1441. It seems to me
that the Prime Minister followed the long-standing Atlanticist view succinctly
expressed by Sir Winston Churchill in the last week of his premiership: We
must never get out of step with the Americans never!
94
With our wider role
in Europe this no longer seems wise. After all it was Eden himself who 50 years
ago during his quest for peace in Indo-China wrote: Americans may think
the time past when they need consider the feelings or difficulties of their
allies.
95
There should be time now for reflection. The U.K. government has a massive
job to rebuild trust before it could again lead us into war. And to rebuild
resources before again fighting a war of choice, as Admiral Sir Michael Boyce
stressed on retirement this summer.
The second suggestion more directly relates to the part the law should play.
As we have seen, it played a markedly subordinate role in the debate. I have
for some time been unconvinced by the argument that the Attorney-Generals
advice is not normally disclosed.
96
It is given for the public good and the public
should generally be entitled to know what is the governments view of the law,
just as we receive the opinion of ministers on whether Bills presented to
Parliament conform with the Human Rights Act. While it was welcome that
the Attorney-General allowed a peep though the curtains in his Parliamentary
Answer, I find it almost incomprehensible that he then declined even to tell
us whether he has given any advice apart from the published summary. The
result is, and the F.C.O. advice is but a fuller version of the same Answer, that
the governments view of the law was never exposed to the spotlight of reasoned
argument or scholarship. How can this be avoided, as I think it should, in the
future?
I believe the time has arrived when the courts should not be so diffident
where an important aspect of the legality of foreign policy is challenged. There
94 D.R. Thorpe, Eden: The Life and Times of Anthony Eden First Earl of Avon 1897-1977 (London,
Chatto & Windus, 2003), p. 541.
95 Ibid, p. 402. Echoes of this sentiment can be heard in the words of Peter Riddell: Yes, Britain
should be a candid friend of America. But candour should not require the suppression of
British interests when, occasionally, these clash with American interests. The Times, 24 April
2003.
96 See the authors Denning Society Lecture 2001.
28
can clearly be no challenge to the policy itself. This is obviously for the
government to decide. But it is well recognised that international law is part
of our domestic law. As Lord Philips MR has said: [The] court . . . is free to
express a view in relation to what it conceives to be a clear breach of
international law, particularly in the context of human rights.
97
Where public
law has evolved so far and now considers on a daily basis wide-ranging issues
of varying importance, it seems strange for the courts not to be able to give
rulings on the legality of an act as fundamental as the invasion of another
sovereign state by an act of war. The knowledge that the courts might be
willing to do so would surely promote greater responsibility and thoroughness
in the giving of advice. Law cannot just be the handmaiden of realpolitik. The
outcome of a legal decision would, I believe, be the firm conclusion that,
except in self-defence against actual or imminent attack, we can only use force
to invade another country under the authority of a current U.N. resolution
passed to cover the specific situation. And that would seem to mean an end to
Suez or Iraqi adventures.
Finally, it seems to me that the most important lesson to be learnt is the one
that sadly has so often been ignored since time immemorial. In the words of
General Sherman, and he was victorious: War is hell. We abandoned
diplomacy too fast in March 2003. With it we abandoned the fragile inter-
national consensus on the way in which to handle the issue of the weapons in
Iraq. The emphasis of the Charter is right. And that is because those who
crafted it knew at first hand that the one reason that force is a last resort is
that the human cost of war is too high for it to be used for any other reason.
Nations need to respect the international institutions rather than to give effect
to their own beliefs as to how the law should be applied. It was President
Dwight Eisenhower, who was also seared by war, who stated in his farewell
address to the nation:
The weakest must come to the conference table with the same confidence as do we,
protected as we are by our moral, economic, and military strength. That table, though
scarred by many past frustrations, cannot be abandoned for the certain agony of the
battlefield.
98
A timeless, eloquent statement and one which I hope may once again come
to underpin the long-term policies of a nation whose passionate commitment
to freedom and self-determination has given the world so much.
97 R(Abbasi) v. SSFCA, supra, n.6 at 97.
98 President Dwight Eisenhower, Farewell Address to the Nation, 17 January 1961.
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Britains War on Saddam had the Law
on its Side
Christopher Greenwood QC*
The charge of military adventurism is unfair; we upheld international law
Todays House of Commons debate on Iraq will raise the question of whether
Britain broke international law. It is an important question because in a
democracy people expect their government to act within the law. Contrary to
what critics claim, however, the military action was not illegal, nor was the
governments legal case made up on the hoof.
Lord Alexander of Weedon, QC, was right to emphasise in The Times (and
see also pp. 3-28) the importance of the legal issue but he was wrong to liken
Iraq to Suez and to characterise it as military adventurism. Britains actions
over Suez had no semblance of legality and the Prime Minister of the day was
openly dismissive of international law. In sharp contrast, the present
government has gone to great lengths to ensure that it acted within the law
and to explain the legal basis for its actions. In doing so it consistently relied
on a legal justification that successive governments have advanced for more
than ten years.
The action in Iraq was a lawful measure to remove a serious threat to
international peace that had festered since Iraqs invasion of Kuwait in 1990.
Not only was that invasion a manifestly unlawful act, but the Security Council
concluded that Iraq, which had twice invaded a neighbour and used poison
gas to devastating effect against its own people, posed a threat to peace that
went beyond the situation in Kuwait. That was why the council (in Resolution
678) authorised a coalition of states to use force against Iraq. That mandate
was not only the legal basis for the military action that freed Kuwait in 1991, it
remained central to the legal position thereafter, because Resolution 678 was
not limited to the liberation of Kuwait but it authorised the coalition states to
use force for the broader goal of restoring international peace and security
in the area.
* Professor of International Law, London School of Economics; assisted the Government on
the Iraq conflict. This article has been reprinted with the kind permission of The Times, where
it appeared as a guest contribution on 22 October 2003.
30
To achieve that broader goal, the council decided that Iraq must rid itself
not only of all weapons of mass destruction but of all raw materials and
programmes for the development of such weapons and do so under close
international supervision. These steps were made conditions of the cease-
fire, laid down in Resolution 687, after the liberation of Kuwait. They were
legally binding on Iraq and were accepted by Saddam Husseins government,
although it never honoured them. Importantly, the council did not repeal
Resolution 678. The authorisation of military action could therefore be revived
if Iraq violated the cease-fire terms.
That was the legal justification relied on by the Conservative government,
as well as by the American and French governments, when they took military
action against Iraq in 1993. Their view was endorsed by Boutros Boutros Ghali,
then the U.N. Secretary-General. The same justification for action was relied
on by the government in December 1998 when the U.N. weapons inspectors
were forced out of Iraq.
More recently, Resolution 1441, unanimously adopted in last November,
made clear that the council considered that the earlier resolution was still in
force. It also held that Iraq was in material breach of its cease-fire obligations.
The legal basis for military action thus existed without the need for a further
resolution. The council nevertheless gave Iraq a final opportunity to comply,
saying that serious consequences would follow if it failed to do so. That Iraq
did not take that opportunity was demonstrated by the successive reports of
the U.N. weapons inspectors.
When those reports were debated, in March 2003, not one of the 15 council
members questioned the proposition that Iraq was still in breach of
Resolution 687. The council was not, however, able to agree on what to do
next. The consequences of the councils well-publicised failure to agree
have been widely misunderstood. The council did not decide to reject military
action. It was unable, because of divisions that existed among its members at
the time, to take any decision at all. But no new decision was required as a
matter of law.
Resolution 1441 made clear that continuing violations by Iraq had to be
reported back to the council for consideration, but, crucially, proposals that
would have required a further decision by the council were not included when
the text of Resolution 1441 was adopted. The lack of a fresh decision in March
this year did not alter what the council had already decided. It had already
confirmed its earlier authority to use force for the restoration of peace and
security; it had already decided that Iraq had still not done what the council
had considered for 12 years was essential for the restoration of peace and
security. In those circumstances, for Britain and the United States to rely on
the existing authorisation was entirely lawful.
Nor does the fact that no smoking gun has yet been discovered in Iraq
affect the legal basis for the action. The Security Council resolutions make
clear that the critical question was not whether Iraq might possess a prohibited
weapon capable of immediate use. Rather, what the council consistently
required was that the inspectors it appointed be able to certify that all such
weapons had gone and that there were no programmes in place by which new
ones could be created. Iraq was required to take positive steps, of disclosure
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and cooperation, as part of this process. In the event, Iraq had still not complied
after 12 years.
The legal case for action against Iraq rested on its persistent failure to take
the steps that the council had decided were necessary to secure peace in the
area, a goal for which the council had given authority to use force and which
it later reaffirmed. There is nothing of Suez or military adventurism about
the action that was taken by the British government.
Britains War on Saddam had the Law on its Side
32
Islamic Law and Feminism:
The Story of a Relationship
Ziba Mir-Hosseini*
I am honoured to have been asked to deliver the 2003 Professor Noel Coulson
Memorial lecture.
1
I was not Professor Coulsons student, but like so many
students of Islamic law, I am very much indebted to his scholarship and insights.
In particular, I have found his book, Conflicts and Tensions in Islamic Jurisprudence,
an inspiration. Published in 1969, the book contains the texts of six lectures
delivered at the newly founded Center for Middle Eastern Studies in the
University of Chicago. In these lectures he examined the principal currents
of Islamic legal theory through a series of conflicting concepts: six polarities,
or areas of tension in Islamic law, namely those between: revelation and reason;
unity and diversity; authority and liberty; idealism and realism; law and morality;
and finally, stability and change.
In this lecture, I shall explore another set of tensions and conflicts in Islamic
jurisprudence that was not explored by Professor Coulson that is, the one
stemming from the conflict between, on the one hand, the patriarchal ethos
embedded in orthodox interpretations of Islamic law, and on the other,
Muslim womens demand for gender justice and equality. This is an area of
tension that has come much more into focus since Professor Coulsons day, in
particular since the late 1970s, when Islamist groups came to power in some
Muslim countries and started to enforce Islamic law as the law of the land.
These developments gave a new lease of life to the tired old debate over the
status or position of women in Islam.
For many, the treatment of women in Islamic law encapsulates the essence
of Islams incompatibility with modernity. It is widely argued though not so
firmly these days that Islam is essentially irreconcilable with central features
of modernity, such as secularism, democracy, pluralism, civil society, religious
tolerance, and gender equality. This conventional argument has not only been
* Ziba Mir-Hosseini is currently a Research Associate at the Centre of Islamic and Middle Eastern
Law where she is pursuing a project on Justice and Gender in Islamic Thought.
This is the text of the Professor Noel Coulson Memorial Lecture delivered at the School of
Oriental and African Studies, University of London, 2 December 2003.
33
falsified by recent developments in the Muslim world but is also now effectively
challenged by emerging feminist voices in Islam. These voices are also changing
the terms of the relationship between Islamic law and feminism a relationship
that was marked until recently by antagonism and distrust.
The argument I shall develop in this lecture is exploratory. It ranges widely
and is still evolving. At times, I am forced to paint with a quick hand and
broad strokes. Discussing a process that is still emerging and contingent is
risky especially in the shadow of a conflict that is threatening the security of
the whole Muslim world, upsetting existing balances and putting Muslims once
more on the defensive, making them more inclined to cling to tradition. But
the connections that I see, and the trends that are emerging, are compelling
enough to lead me to take the risk of presenting them. If my analysis and my
hunches are correct, we will look back at this time as the formative period of
a feminism and a secularism that are indigenous to Islam. Both, I shall argue,
are the paradoxical and unintended consequences of the rise of political Islam
and of the Islamist project of a return to the sharia.
ISLAMIC FEMINISM
NEW FEMINIST VOICES IN THE MUSLIM WORLD
Let me begin with connections that I see between the rise of political Islam
and the emergence of a new gender consciousness and movement among
Muslims.
Muslim women, like other women in the world, have always been aware of
and have resisted gender inequality, yet the emergence of a sustained,
home-grown (indigenous) feminism was delayed until recently. This delay at
least partly reflects the complex relation between demands for equal rights
for women and the anti-colonial and nationalist discourses of the first part of
the 20
th
century. At a time when feminism, both as a consciousness and as a
movement, was being shaped and making its impact in Europe and North
America, as Leila Ahmed and others have shown, it also functioned to morally
justify the attacks on native societies and to support the notion of the
comprehensive superiority of Europe.
2
Western authorities (travellers, diplomats, scholars) regularly reported on
the subjection of women in Muslim societies. With the rise of anti-colonialist
and nationalist movements, Muslims were thrown on the defensive with regard
to traditional gender relations. Muslim women who acquired a feminist
consciousness and advocated equal rights for women were under pressure to
conform to anti-colonialist or nationalist priorities. Any dissent could be
construed as a kind of betrayal. Western feminists could criticise patriarchal
elements of their own cultures and religions in the name of modernity,
liberalism and democracy, but Muslim women were unable to draw either on
1 Leila Ahmed, Women and Gender in Islam: Historical Roots of a Modern Debate (New Haven, Yale
University Press, 1992), p. 154.
2 Leila Ahmed, Early Feminist Movements in the Middle East: Turkey and Egypt, in Freda
Hussain (ed) Muslim Women (London, Groom Helm, 1984), p. 122.
Islamic Law and Feminism
34
these external ideologies or on internal political ideologies in their fight for
equal rights. For colonialists, Islamic law was the embodiment of a backward
system that must be rejected in the name of progress. For the nationalists and
anti-colonialists, feminism the advocacy of womens rights was part of the
colonial project and must be resisted. Muslim women, in other words, faced a
painful choice a choice that Leila Ahmed spoke of in terms of choosing
between betrayal and betrayal.
3
They had to choose between their Muslim
identity their faith and their new gender awareness.
But as the 20
th
century drew to a close, this dilemma disappeared. One
neglected and paradoxical consequence of the rise of political Islam in the
second half of the century was that it helped to create a space, an arena,
within which Muslim women could reconcile their faith and identity with a
struggle for gender equality. I must emphasise that this did not happen because
the Islamists were offering an egalitarian vision of gender relations. Rather,
their very agenda return to the sharia and their attempt to translate into
policy the patriarchal gender notions inherent in Islamic law, provoked many
women to increasing criticism of these notions, and spurred them to greater
activism. A growing number of women came to see no inherent or logical link
between Islamic ideals and patriarchy, no contradiction between Islam and
feminism, and to free themselves from the straitjacket of earlier anti-colonial
and nationalist discourses. Using the language of political Islam, they could
sustain a critique of the gender biases in Islamic law in ways that were previously
impossible. The path was now open for a dialogue between feminism and
Islamic law.
By the late 1980s, there were clear signs of the emergence of a new way of
thinking, a gender discourse that is feminist in its aspiration and demands,
yet is Islamic in its language and sources of legitimacy. Some versions of this
new discourse came to be labelled Islamic feminism, a notion that continues
to be contested by the majority of Islamists and some feminists, who see it as
antithetical to their respective positions or ideologies, according to which
Islamic feminism is a contradiction in terms.
What, then, is Islamic feminism? How does it differ from other feminisms?
These questions can best be answered by examining the dynamics of Islamic
feminism and its potential to bring about a much needed paradigm shift in
Islamic law. It is difficult and perhaps futile to put the emerging feminist voices
in Islam into neat categories, and to try to generate a definition that reflects
the diversity of positions and approaches of so-called Islamic feminists. Like
other feminists, their positions are local, diverse, multiple and evolving. Many
of them have difficulty with the label, and object to being called either Islamic
or feminist. They all seek gender justice and equality for women, though
they do not always agree on what constitutes justice or equality or the best
ways of attaining them. In my view, any definition of Islamic feminism, rather
than clarifying, may cloud our understanding of a phenomenon that, in Margot
Badrans words, transcends and destroys old binaries that have been
3 Margot Badran, Islamic Feminism: Whats in a name? Al-Ahram Weekly Online, 17-23 January
2002, Issue No. 569.
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35
constructed. These included polarities between religious and secular and
between East and West.
4
To understand a movement that is still in formation, we might start by
considering how its opponents depict it, in other words, the resistance against
which it has sought to struggle. Opponents of the feminist project in Islam
fall into three broad categories: Muslim traditionalists; Islamic fundamentalists;
and secular fundamentalists. The Muslim traditionalists resist any changes
in what they hold to be eternally valid ways, sanctioned by an unchanging
sharia Islamic fundamentalists a very broad category are those who seek
to change current practices by a return to an earlier, purer version of the
sharia, which they seek to implement through the machinery of the modern
nation-state. Secular fundamentalists who can be just as dogmatic and as
ideological as religious fundamentalists deny that any sharia-based law or
social practice can be just or equal or relevant to modern times.
Though adhering to very different ideologies and scholarly traditions and
following very different agendas, all these opponents of the feminist project
in Islam share one thing in common: and that is, an essentialist and non-
historical understanding of Islamic law and gender. They fail to recognise
that assumptions and laws about gender in Islam as in any other religion
are socially constructed, and thus historically changing and open to
negotiation. They resist readings of Islamic law that treat it like any other
system of law, and disguise their resistance by mystification and mis-
representation. Selective in their arguments and illustrations, the three kinds
of opponents resort to the same kinds of sophistry. They often put an end to
discussion by producing a Quranic verse or a hadith, taken out of context.
Muslim traditionalists and fundamentalists do this as a means of silencing
other internal voices, and abuse the authority of the text for authoritarian
purposes. Secular fundamentalists do the same, but in the name of progress
and science and as means of showing the misogyny of Islamic texts, while
ignoring both the similar attitudes to women in other religious scriptures,
and the contexts of the texts, as well as the existence of alternative texts. In so
doing, they end up essentialising and perpetuating difference, and reproduce
a crude version of the Orientalist narrative of Islam.
5
What is often missing in these narratives is a recognition that gender
inequality in the Old World was assumed, and that perceptions of women in
Christian and Jewish texts are not that different from those of Islamic texts.
What transformed womens situation in the West was not Christianity but new
social conditions that were shaped by and in turn shaped new political and
socio-economic discourses and new popular understandings of Christianity.
4 For instance, see Haideh Moghissi, Feminism and Islamic Fundamentalism: The Limits of Postmodern
Analysis (London & New York, Zed Books, 1999).
5 See for instance, Asma Barlas, Believing Women in Islam: Unreading Patriarchal Interpretations of
the Quran (Texas University Press, 2002); Riffat Hassan, Equal Before Allah? - Woman-Man
Equality in the Islamic Tradition, in her Selected Articles, (Women Living Under Muslim Laws,
nd, 26-9 (original in Harvard Divinity Bulletin 7, no. 2, Jan-May 1987); Fatima Mernissi, Women
and Islam: An Historical and Theological Enquiry, trans. Mary Jo Lakeland (Oxford, Blackwell,
1991); Amina Wadud, Quran and Woman: Reading of the Sacred Text from a Womans Perspective
(New York, Oxford University Press, 1999).
36
It is against this backdrop that activities of the so-called Islamic feminists
should be reviewed. By both uncovering a hidden history and rereading textual
sources, they are proving that the inequalities embedded in Islamic law are
neither manifestations of divine will, nor cornerstones of an irredeemably
backward social system, but human constructions. They are also showing how
such unequal constructions go contrary to the very essence of divine justice
as revealed in the Quran, and how Islams sacred texts have been tainted by
the ideology of their interpreters. For example, mens unilateral rights to
divorce talaq and to polygyny were not granted to them by God, they show,
but by Muslim jurists. They are juristic constructs that follow from the way
that early Muslim jurists conceptualised and defined marriage: they defined it
as a contract of exchange, patterned after the contract of sale, which, by the
way, served as a model for most contracts in Islamic law.
The majority of these feminist scholars have focused their energy on the
field of Koranic interpretation (tafsir) and have successfully uncovered the
Qurans egalitarian message.
6
The genesis of gender inequality in Islamic
law, these scholars tell us, lies in an inner contradiction between the ideals of
Islam and the social norms of the early Muslim cultures. While the ideals of
Islam call for freedom, justice and equality, Muslim social norms and structures
in the formative years of Islamic law impeded their realisation. Instead, these
social norms were assimilated into Islamic jurisprudence through a set of
theological, legal and social theories and assumptions. Salient among them
were propositions such as: women are created of men and for men; women
are inferior to men; women need to be protected; men are guardians and
protectors of women; marriage is a contract of exchange; and male and
female sexuality differ and the latter is dangerous to the social order.
These assumptions and theories are nowhere more evident than in the rules
that define the formation and termination of marriage, through which gender
inequalities are sustained in present-day Muslim societies. In my own work on
marriage and divorce, I have tried to engage with these juristic assumptions,
to show how the science of Islamic jurisprudence became the prisoner of its
own legal theories, which in time came to by-pass the Quranic call for justice
and reform.
7
POLITICAL ISLAM AND THE SECULARISATION OF
ISLAMIC LAW
Let me now turn to the second unintended consequence of the rise of political
Islam, that is, setting in train a movement to secularise the notion of law in
Islam.
I will explore this movement in the case of Iran, where one version of the
Islamist vision was realised in 1979, when a popular revolution gave birth to
6 Ziba Mir-Hosseini, Islam and Gender: The Religious Debate in Contemporary Iran (Princeton
University Press, 1999); and The Construction of Gender in Islamic Legal Thought and
Strategies for Reform, Hawwa: Journal of Women in the Middle East and the Islamic World, Vol. 1,
No 1, 2003, pp. 1-28.
7 A. Tabari and N. Yeganeh, In the Shadow of Islam: The Womens Movement in Iran (London, Zed
Books, 1982), p. 232.
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37
an Islamic Republic, a peculiar and unprecedented combination of theocracy
and democracy. Religious and political authority converged and the state
embarked on a fierce process of Islamisation. Now, less than three decades
later, those who led the 1979 Revolution are engaged in a bitter struggle over
its legacy. It is an argument over the role of religion in politics, and the proper
scope of Islamic law in defining social norms and regulating personal relations.
There are two main camps: the Conservatives, who insist on keeping the
ideological discourse of the Revolution intact, and the Reformists, who want
to reconcile it with notions of democracy and human rights.
Today Iran is going through a transition, the outcome of which may prove
as significant for the Muslim world as the 1979 Revolution itself. The transition
got underway with the unexpected victory of Mohammad Khatami in the
1997 presidential elections. This unleashed a popular reformist movement
that is trying to bring about a gradual withdrawal of religion from its fusion
with state authority, a shift from the theocratic towards the democratic basis
of the Islamic Republic.
Why and how is this theocracy producing its own antithesis? There is a host
of factors at work that I cannot elaborate here, except to say that the major
factors are encapsulated in the tension between theocratic and democratic
principles and elements, a tension that is inherent in the very quest for an
Islamic state in modern times. What is usually held to define a state as Islamic
is adherence to, and implementation of, the sharia, held up as the perfect law
embodying the justice of Islam. But in practice this has amounted to enforcing
a dress code for women, and applying an outdated patriarchal and tribal model
of social relations through courts dealing with penal cases and familial disputes.
In Iran, the results have been so out of touch with social realities, with the
Iranian sense of justice, with womens aspirations, that both clerics and lay
people have been forced to rethink their notion of the sharia as an immutable
body of law; to redefine their relationship with it.
This has nowhere been more evident than in the area of family law the
most developed field of classical Islamic jurisprudence, where the boundaries
between sacred and temporal are most blurred. The provisions of the
Quran were most abundant and explicit in regard to personal status and
family relations, which are thus more closely intertwined with the sacred in
the law than other fields of social life. Islamists claim family law as the
foundation of the ideal Islamic society so naturally, when they have gained
political power or influence, a return to sharia provisions of family law has
become their priority.
One of the early communiqus issued by Ayatollah Khomeinis office, on
26 February 1979, barely two weeks after the collapse of the Pahlavi regime,
announced the dismantling of the Family Protection Law the reforms
introduced under the Pahlavis in the 1960s.
8
Sharia provisions for marriage
and divorce were now re-instituted.
The Family Protection Law had abolished mens right to talaq (repudiation),
restricted their right to polygamy, and placed men and women on more or
8 For pre and post-revolutionary family law in Iran, see Z. Mir-Hosseini Family Law in Modern
Persia, in Encyclopedia Iranica, 9, 1999, pp. 192-196.
38
less the same footing in terms of access to divorce and custody rights. The
Revolutionary Council restored the sharia in order to protect the family
and realise womens high status in Islam. But this was not how women
perceived and experienced the changes.
In October 1980, when I first started attending the Tehran branches of the
new family courts, now presided over by Islamic judges, women who came to
court were astonished to learn that their husbands could now divorce them
without first securing their consent. Some remained incredulous and would
ask more than one judge: Can he really divorce me, if I dont agree? Is this
what the sharia says? In 1985, when I resumed my court attendance, although
no longer incredulous, women were insistent on voicing their discontent; some
used every occasion to remind the Islamic judge of his role as custodian of the
sharia, and of the injustice of a system which could afford them no protection.
It was common to hear women asking the judge: Is this how Islam honours
women? Is this the justice of Islam, that he can take another wife? What will
become of me and my children?
To these questions, the judges had no answer, especially when a man insisted
on exercising his right to divorce a wife who was entirely dependent on him,
with no other source of income and nowhere else to go. Some judges though
certainly not all experienced a moral dilemma; not only did they have to
witness the plight of women on a daily basis, they could not help but feel
implicated themselves. The Islamic judges in whose courts I sat in the 1980s
never failed to remind me that I had chosen the wrong place to learn about
the sharia. You should to go to the seminaries, they said, read jurisprudential
texts and discuss them with the ulema; the courts have nothing to teach you
about the sharia.
In 1997, when I returned to the Tehran courts with Kim Longinotto to
make a documentary film about divorce, there was little trace of the idealism
I had encountered in the 1980s. Meanwhile, the negative effects of the
enforcement of sharia law had created such havoc in family life, such an uproar
among women, that almost all the reforms that had been dismantled overnight
by that single communiqu from Ayatollah Khomeinis office, had slowly but
surely been brought back. This was done through a series of legislative measures
and procedural devices whose spirit and juristic logic was, in a nutshell, to
protect and reward those women who presented no overt challenge to the
patriarchal ethos of Islamic law as defined by Muslim jurists. To exercise his
so-called Islamic right to divorce, a man had now either to obtain his wifes
consent or to compensate her. The 1992 Amendments to the Divorce Laws
enable a court to place a monetary value on womens housework and to force
the husband to pay her ujrat al-mithl (exemplary wages) of course, provided
that the divorce is not initiated by the wife and is not caused by any fault of
hers.
9
Far from producing the intended result, that is, a generation of docile wives,
9 For this distinction, see Muhammad Hashim Kamali, Sources, Nature and Objectives of
Shariah, Islamic Quarterly 33 (1989), p. 216. For an argument not employing the distinction,
see Abdullahi Ahmed An-Naim, Islamic Foundation for Womens Human Rights, in Zainah
Anwar and Rashidah Abdullah (eds), Islam, Reproductive Health and Womens Rights (Kuala
Lumpur: Sisters in Islam, 2000), pp. 33-34.
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39
these legislative moves have exposed the gap between the juristic assumptions
through which marriage is defined in Islamic law, and marriage as lived and
experienced today. They have also become a bargaining chip in the hands of
women, many of whom now use it effectively in the courts.
Far from creating marital harmony, the return to the sharia in Iran has
proved a major cause of marital breakdown and a soaring divorce rate. The
same can be said with respect to other areas of the law in particular penal
codes. All this has revived an internal debate, and reactivated two crucial
distinctions that the early wave of Islamic activists distorted and obscured.
The first is the distinction between the revealed law or the sharia, and the
science of Islamic jurisprudence or fiqh a distinction that lies at the root
of the emergence of the various orthodox schools of Islamic law.
10
Sharia
literally means the way and in Muslim belief it is the totality of Gods law as
revealed to the Prophet Mohammad. Fiqh, which means understanding, is
this process of human endeavour to discern and extract legal rules from the
sacred sources of Islam: the Quran and the Sunna (the practice of the
Prophet). In other words, while the sharia is sacred, universal and eternal,
fiqh, like any other system of jurisprudence, is local, multiple and subject to
change in its doctrines and premises.
In Professor Coulsons words:
[...] while the law in Islam may be God-given, it is man who must apply the law. God
proposes: man disposes. And between the original divine proposition and the eventual
human disposition is interposed an extensive field of intellectual activity and
decision.
11
In contrast to contemporary Islamic fundamentalists, Muslim jurists have always
admitted that their understanding of the revealed law the sharia is
contingent. In classical fiqh texts, one often comes across phrases such as this
is what I understood, or and God knows best, phrases by which classical
jurists qualified the laws that they discerned and separated them from Gods
law.
12
The second distinction is that made in all schools of Islamic law between
the two main categories of legal rulings: ibadat (ritual/spiritual acts) and
muamilat (social/private contracts). Rulings of the first category, ibadat,
regulate relations between God and the believer, and there is limited scope
for rationalisation and explanation, as these rulings contain divine mysteries.
But this is not the case with rulings of the second category, muamilat; they
regulate relations among humans, and remain open, almost without restriction,
to rational considerations. In other words, while the sharia sets specific rulings
on relations with the divine, in the realm of human relations its rulings are
intended only to establish basic principles and guidance so as to ensure
propriety and fair play.
10 Noel Coulson, Conflicts and Tensions in Islamic Jurisprudence (University of Chicago Press, 1969),
p. 1-2.
11 See Khaled Abou El Fadl, The Authoritative and the Authoritarian in Islamic Discourses: A
Contemporary Case Study (second edition, Austin, Dar Taiba, 1997).
12 For a sample of the textual genealogy of this thinking, see Charles Kurzman (ed), Liberal
Islam: A Sourcebook (Oxford, Oxford University Press, 1998).
40
By the early 1990s in Iran, the ideological, theological, theoretical and
practical problems brought by the experience of administering pre-
modern interpretations of the sharia had led to the formulation of a new
approach. The main architect was Abdolkarim Soroush, whose interpretative-
epistemological theory of the evolution of religious knowledge known as
The Contraction and Expansion of Sharia posed a serious challenge to
both traditional and ideological constructions of the sharia. Referred to as
New Religious Thinking, this new approach became the intellectual backbone
of the Reformist movement that emerged in 1997. It is part of an older school
of thought that remained dormant during the first decade of the Islamic
Republic when it was engaged with a war with Iraq. Its advocates now display a
refreshing pragmatic vigour and a willingness to engage with non-religious
perspectives. They do not reject an idea simply because it is Western, nor do
they see Islam as a blueprint with an in-built programme of action for the
social, economic, and political problems of the Muslim world.
13
They contend
that the human understanding of Islam is flexible, that Islams tenets can be
interpreted to encourage both pluralism and democracy, and that Islam allows
change in the face of time, space and experience.
What is new about the New Religious Thinking is not the argument that
fiqh is temporal this was argued by al-Ghazali as early as the 11
th
century. Nor
is it the attempt to consolidate conceptions of Islam and modernity as
compatible this has been the aim of all Muslim reformers since the 19
th
century. What is new is the political context within which these ideas are now
shaped and operate, that is, the experience of living under a theocracy at the
beginning of the 21
st
century. It is this experience that has forced both the
religious intellectuals and ordinary people alike to rethink the notions of sacred
and mundane in the sharia. It is not that the sharia is losing its sanctity, or
that people are turning away from Islam. Rather, the states ideological use of
the sharia, and its penetration into the private lives of individuals, have brought
home the urgent need to separate the sharia from the state.
Events in Iran are still unfolding, and it remains to be seen whether the
New Religious Thinkers the intellectual backbone of the Reformist
movement will succeed in translating their vision of Islam into a political
reality. At present they are locked in a fierce battle with their Conservative
opponents, which is shaking the very foundation on which the Islamic Republic
rests. But irrespective of the outcome of this battle, the process of
secularization of Islamic law has reached the point of no return. The Islamic
Republic has given Islamic law a new substance and new functions, and radically
transformed the connections between state power, legal institutions, religious
authority, and moral norms.
13 There is a growing literature on this; in addition to works mentioned in n. 18, see Asghar Ali
Engineer, The Rights of Women in Islam (London, Hurst, 1992); Haifaa A. Jawad, The Rights of
Women in Islam: An Authentic Approach (Macmillan, 1998); Azizah Al-Hibri, Islam, Law and
Custom: Redefining Muslim Womens Rights, American University Journal of International Law
and Policy 12 (1997), pp. 1-44.
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41
CONCLUSION
Let me conclude by suggesting some answers to two questions implicit in my
argument. First, can Islamic law admit an equal construction of gender rights?
In other words, can Islamic law and feminism cohabit? If so, secondly, how
and through what means and processes?
I explored the first question in the context of the emerging feminist voices
in Islam. The gist of my argument there was that, by advocating a brand of
feminism that takes Islam as the source of its legitimacy, the new feminist
voices in Islam have effectively challenged the hegemony of orthodox
interpretations of Islamic law. Such a challenge, I argued, was made possible,
even inevitable, by the Islamists very project of an ideological construction of
Islam and a return to the sharia, and the imposition of anachronistic
jurisprudential constructions of gender relations. This has inadvertently paved
the way for the emergence of a new gender discourse that is questioning the
legitimacy of the views of those who until now have spoken in the name of
Islam.
14
The emerging feminist project in Islam is in a unique position to bring
about a much-needed paradigm shift in Islamic law and its politics. This is so
because it exposes the inequalities embedded in Islamic law, not as
manifestations of the divine will, but as constructions by male jurists.
Such an exposure can have important epistemological and political
consequences. Epistemological, because if it is taken to its logical conclusion,
then it can be argued that some rules that until now have been claimed as
Islamic, and part of the sharia, are in fact only the views and perceptions of
some Muslims, and are social practices and norms that are neither sacred nor
immutable but rather human and changing.
15
Political, because it can both
free Muslims from taking a defensive position and enable them to go beyond
old fiqh wisdoms in search of new questions and new answers.
I explored the second question the processes involved in changing Islamic
law by considering Irans experience of the enforcement of Islamic law
through the machinery of a modern state. Two decades of this experience
gave rise to a popular Reformist movement that has been trying to separate
the institution of the religion from that of the state and to forge a more
democratic and pluralist political culture. At the heart of this struggle lies one
of the main ideological battles fought in Iran today over two notions of
Islam and two ways of relating to its sacred texts. One is a legalistic and absolutist
Islam, premised on the notion of duty (taklif) as understood and constructed
in Islamic jurisprudence (fiqh) and making little concession to contemporary
realities and the aspirations of Muslims. The other is a pluralist and tolerant
Islam, premised on the notion of right (haqq) as advocated by modern
democratic ideals.
14 For this discourse in Iran, see Islam and Gender, Part III.
15 Ernest Gellner, Conditions of Liberty: Civil Society and Its Rivals (London/Toronto, 1994), p. 15;
and his The Importance of Being Modular, in John A. Hall (ed), Civil Society: Theory, History,
Composition (Cambridge, 1995), p. 39.
42
The Islamic revolution in Iran led to the establishment of the first and
perhaps the last theocracy of the modern age. It would be one of historys
sharpest ironies if the most lasting legacy of the Iranian Revolution were the
full separation of state and religion, an eventuality that scholars like Ernest
Gellner argued was unlikely to happen in the Muslim world.
16
The trans-
formation of Islamic law from a scholarly discipline into a state ideology backed
by a modern state apparatus sets in motion a process that is bound to bring the
secularisation of the concept of law in Islam. In the end, the very slogan of
return to the sharia, from which Islamists draw their legitimacy and power
when they are in opposition, becomes their Achilles heel when they are in
power.
Both Islamic feminism and the Reformist movement in Iran are still in
their formative phases, and their fortunes are tied to political developments
all over the Muslim world, and of course to global politics. But it is important
to remember two things, with which I would like to end.
First, Islamic law like any other system of law is reactive, in the sense that
it reacts to social practices and peoples experiences; it has both the potential
and the legal mechanisms to deal with womens demand for equality. We must
not forget that most often, legal theory follows practice; that is to say, when
social reality changes, then social pressure will effect changes in the law.
Secondly, there is a theoretical concord between the egalitarian spirit of
Islam and the feminist quest for justice and a just world. It is perhaps this that
makes the feminist project in Islam so unsettling to conventional views and
vested interests in the Muslim world and beyond.
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43
Iranian Family Law
in Theory and Practice
Dr. Nadjma Yassari*
1 INTRODUCTION
The emergence of the Pahlavi dynasty in 1925 marks the beginning of modern
Iranian legal history. In Reza Shahs reign (1925 to 1941) important reception
of foreign, mostly French laws took place. His son Mohammad Reza Shah
succeeded him in 1941 and ruled until 1979. Both reigns were characterised
by political despotism and dictatorship, but as far as legal reforms were
concerned a secular and progressive line was pursued. In 1979 the Iranian
revolution changed this direction. The 2,500-year-old monarchy was
overthrown in favour of an Islamic Republic. Since then Irans legal system is
being islamised with all laws subordinated to their compatibility with Islamic
Principles, as inscribed in Principle 4 of the Constitution.
1
The political changes
of the last century have left their imprints on almost all aspects of the Iranian
civil law, including the family laws.
2
I shall examine the provisions of family
* LLM, (SOAS); Head of the Department for the Laws of Islamic Countries at the Max-Planck-
Institute for Foreign Private and Private International Law in Hamburg. The translations of
the Articles of the various Acts are by the author. The translation of the Quran are from Yusuf
Ali, The Holy Quran.
1 Principle 4 of the 1979 Constitution as amended in 1989: All civil, penal, financial, economic,
administrative, cultural, military, political, and other laws and regulations must be based on
Islamic criteria. This principle applies absolutely and generally to all articles of the Constitution
as well as to all other laws and regulations, and the wise persons of the Council of Guardians
are judges in this matter.
2 The literature on Iranian family law in Farsi has remarkably widened in the last years. The
standard books are the following: Gafari-Lankarudi, hoquq-e xanewade (family law) 1976. Emami,
A., hoquq-e madani (Civil Law) Vol. 4, 3rd edition, 1985. Katuzian, hoquq-e madani (Civil Law) 2
Volumes, 5th edition, 1999. Mehrpur, H., hoquq-e zan (The rights of the woman) 2000. Mohaqeq-
Damad, S.M., barresi-e feqhi-e hoquq-e xanewade, nekah wa enhelal-e an (Civil law, marriage and its
dissolution) 9th edition, 2002. Safai, S.H., Emami, A., moxtasar-e hoquq-e xanewade (A concise
family law) 5th edition, 2002. Safai, S.H., Emami, A., hoquq-e xanewade (Family law) 2 Volumes,
8th edition, 2002. Haeri Sahbaq, S.A., sahr-e qanun-e madani (Commentary of the Civil Law) 2
Volumes, 1997. In the past years some new monographs on family law issues have been
published. To mention a few: Ebadi, S., hoquq-e kudak (Child law) 5th edition, 1999. Rafii, A.,
talaq wa asar-e an (Divorce and its effects) 2001. Mahmudi, A., hoquq qabl az ezdewag (The rights
before marriage) 2002. Mirxani, E., rujikardi-e nowin dar rawabet-e xanewade (New views on
family relationship) 2000. Urei, Q., tamkin-e banu, riasat-e sohar (The wifes submission and
the husbands leadership) 2001.
44
law as enacted in the Civil Code and the bylaws and their amendments in the
past and in the present and give an account of the family law cases dealt with
at the Tehran family law Court.
2 HISTORICAL OVERVIEW
2.1 Reza Shahs reign 1925-1941
In 1925 Reza Shah was crowned king. Two of the most striking features of his
reign were his will to build a strong, central power in order to modernise and
control the country and his endeavour to eliminate the political influence of
the Shia clerical establishment. Reza Shah had accepted the principle of
secularisation and pursued this path with fervour. He had the clerical waqf or
religious foundations confiscated, with the consequent loss of wealth, power
and independence of the clergy. These endowments were transferred to the
reorganised Ministry of Education, and the clerics who were retained in the
administration of the waqf became state functionaries.
3
Reza Shah was not
contemptuous or hostile to religion as such; but he was opposed to it in so far
as the religious blocked modernisation and were in a position to compromise
the whole movement if not curtailed in power.
4
Secularisation expressed itself in a number of norms. In 1927 a Code on
the Organisation of the Judiciary and one on the Principles of Civil Procedure
were enacted, introducing a state court system with civil servants as judges. In
1928 a Commission consisting of Iranian lawyers trained in Europe and of
Shia clerics and theologians designed the first part of the Iranian Civil Code,
qanun-e madani, enacted the same year.
In 1931 official surnames were introduced. This law paved the way for the
Law of the Registration of Lands and Documents, qanun sabt asnd wa amwal,
putting an end to a chronic confusion of land tenure and innumerable
contentions.
5
In 1931 the Act on Marriage, qanun rage be ezdevag (Marriage Act), was
implemented.
6
The Act was the first step towards greater state control in matters
of personal status. It introduced official offices for marriage and divorce, where
all matters of personal status had to be registered. The non-registration of
those matters meant that the marriage or the divorce, although religiously
valid, had no state recognition. Sanctions, such as a financial penalty or arrest,
are imposed.
7
The clerics were still empowered to conclude the marriage, but
without the registration in the official offices, the state would not recognise
the marriage.
3 Young, T., The problem of Westernization in Modern Iran, the Middle East Journal, 2 January
1948, p. 54 (47-59).
4 Young, p. 54.
5 Owsia, P., Formation of Contract, a Comparative Study under English, French, Islamic and Iranian
Law, 1994, p. 28.
6 15 August 1931.
7 Art. 1 II. Marriage Act.
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45
In 1935 the second part of the Civil Code was enacted.
8
It contains the
provisions on family and succession law. The source of these provisions is the
Islamic-Shia rules on family and succession law. The innovation was the
compilation of Islamic provisions in a codified book. In 1936 as part of his
efforts at cultural modernisation, the Shah forbad against the strong
opposition of the clerical establishment the covering of women.
9
In 1941,
however, his son and successor Mohammad Reza Shah removed this rule and
until 1980 women remained free to dress in public as they wished.
2.1.1 The system of Islamic-Iranian family law
Iranian family law is a reflection of the Islamic concept of family, a concept
that is based on the idea of the distribution of specific roles to the parties in a
family relation. It is based on the perception of men and women as having
different roles that ideally complement each other. A mans position is defined
with respect to his relation to the outside world as the provider of the family.
That means that it is his duty to provide for his wife and children. The duties
of women revolve around their role as wives and mothers within the family. If
any party breaches his or her duties, the other side is allowed to refrain from
pursuing his or her own duties. Iranian family law is a reflection of this idea,
but also of a strong patriarchal concept of family in Iranian society.
2.1.2 The Iranian Civil Code
The Iranian Civil Code was progressive in certain respects and conservative in
most parts. As far as its structure is concerned, it leans heavily on the French
Code Civil but the content of its 1,335 articles reflect more or less the Shia
Islamic rules of civil law.
Unlike other codification in Islamic countries, family law is codified in the
Civil Code itself, not in a separate code. Many provisions of the Civil Code
have subsequently been altered or supplemented, but the core of the Civil
Code has remained unchanged. The family law encompasses all matters of
personal status: marriage and dissolution of marriage, including the
consequences of dissolution such as alimony and division of assets,
10
the law
of children, including kinship, custody
11
and guardianship.
12
I. MARRIAGE LAW
The relation between the spouses
According to the Civil Code, marriage is a contract between a man and a
woman creating a marital relationship
13
whereby the spouses are committed
8 17 February, 12 March, 17, 19, 20 April 1935.
9 Mass, H., le dvoilement des Iraniennes, revue des tudes islamiques, Cahiers 1935, pp. 411-
418.
10 Arts. 1034-1157, Civil Code.
Iranian Family Law in Theory and Practice
46
to good behaviour to each other.
14
They must assist each other in the education
of their children and in strengthening the bases of the family.
15
In achieving
these goals, the Civil Code allocates different duties to men and women.
16
Rights and duties of the husband
The husband has to provide for his family.
17
He owes maintenance, including
food, housing, house ware, clothing, and medication. The husbands duty to
provide maintenance is absolute and he cannot refrain from giving his wife
maintenance, claiming that she has her own income or that her family supports
her.
18
To establish the level of maintenance, the wifes position in society and
the standard of living of her family have to be taken into account. If she had
staff at her disposal at her fathers house, she can ask for the same standard of
living from her husband.
19
On the other hand, the husband is the head of the family and the
household.
20
Stemming from this position, he can designate the familys
residence. If it is appropriate, suitable for ordinary life and up to the standard
of living of the women, the wife cannot refuse to live there with him.
21
Furthermore, he can forbid and bar his wife from exercising a profession or
having an occupation that is incompatible with the familys interests or with
his or her prestige and dignity or the prestige and dignity of the family.
22
He
has the last word in all that concerns the outside world and in family internal
disputes.
23
Rights and duties of the wife
The wife is entitled to maintenance but she herself does not owe any
maintenance to any family member. It is always the male family members who
bear the burden of providing for the family. Upon marriage, she is entitled to
a dowry which can be a sum of money or anything else which has a commercial
value.
24
This asset goes into her ownership and as for all her other assets she
can dispose of it without anybodys permission.
25
Normally the dowry is not
delivered during the marriage. In most cases the wife will ask for her dowry
whenever divorce occurs.
26
If the husband dies before the dowry has been
paid, the wife can claim her dowry as a higher debt before the bequest is split
13 Art. 1062, Civil Code.
18 Haeri ahbaq, Vol. 2, 1997, p. 988 et seq.
21 Arts. 1004, 1114, Civil Code.
23 Safai, S.H., Emami, A., hoquq-e xanewade , Vol. 1, p. 138.
24 Arts. 1078 to 1101 Civil Code. On the provisions on dowry see Yassari, N., Die Brautgabe nach
iranischem Recht, StAZ (das Standesamt) 7/2003 (198-201).
25 Art. 1118s Civil Code.
26 On dowrys see also Emami, A., hoquq-e madani, Vol. 4, p. 378 et seq.
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47
between the heirs.
27
On the other hand, as long as her husband provides for
her and fulfils his marital duties, she will have to submit to his will.
28
It has to be noted that most legal provisions in marriage law can be abrogated
in the marriage contract.
29
Stipulations that do not contradict the essence of
marriage can be included in the marriage contract. In this area the principle
of freedom of contract is largely fulfilled.
II. DISSOLUTION OF MARRIAGE
30
Before the codification of the Iranian Civil Code, Shia divorce law, as applied
by Shia clerics, governed the divorce. This meant that a divorce was valid
when it was meant seriously and pronounced in the presence of two (rightful,
Muslim) witnesses. It was not necessary that the wife be present or even notified
about the divorce, for it to be valid. As codified in the Civil Code, divorce
remained the privilege of the husband. Article 1133 of the Civil Code reads:
A man can repudiate his wife, whenever he wants to.
Divorce was codified as a unilateral act
31
of the husband that needed no reasons.
It only needed to be registered under the Marriage Act of 1931 for recognition
by the state.
The wife, on the other hand, could only initiate divorce proceedings when
her husband was in breach of his marital duties.
32
The Civil Code gave her the
following reasons:
(1) the husbands disappearance for a period of at least four years without
any sign of life;
(2) the husbands refusal to pay alimony;
(3) the husbands breach of any other marital duties and the impossibility
to have him observe them; and
(4) the husbands suffering from a contagious and likely incurable disease,
which held danger for the physical integrity of the wife.
33
Only in these cases could the wife refrain from performing her own duties
and ask for compliance.
34
If the husband persisted in ignoring and violating
her rights, she could address the judge to have her husband divorce her.
35
28 Ibid., p. 139.
29 Art. 1119 Civil Code and Art. 4 Marriage Act
30 See for an account of Iranian divorce laws, Yassari, berblick ber das iranische Scheidungsrecht,
FamRZ (Zeitschrift fr das gesamte Familienrecht)16/2002 (1088-1094).
31 Mohaqeq-Damad, S. M., p. 379.
32 See Mehrpur, H., hoquq-e zan, p. 142 et seq.
33 Arts. 1029, 1129 and 1130, Civil Code.
34 Art. 1111 Civil Code.
35 Katuzian, Vol. 1, p. 369. Haeri ahbaq, p. 988 et seq. Gafari-Lankarudi, p. 224. Safai, S.H.,
Emami, A., hoquq-e xanewade , Vol. 1, Note 203, p. 228 et seq.
48
III. CHILD LAW
Based on the Islamic concept of child law, the Civil Code differentiates between
welajat, i.e. the financial care and legal representation of the child and negahdar,
or hezana,t
36
i.e. the personal care or custody of the child.
The Civil Code does not provide for explicit definitions of either expression.
Welajat is commonly understood as the fathers right to manage the childs
assets and its financial affairs.
37
The wali has the power of attorney to represent
the child and to act on its behalf.
38
It is also he who has to provide for his
children and owes them maintenance. This is why the Civil Code allows only
the father and in his absence, the father of the father, to exercise the welajat
over the child.
39
Negahdari, on the other hand, encompasses the education and supervision
of the child and the care for its physical and spiritual well being
40
what can
be described as custody in a narrow sense. Here the principle that the parents
shall care jointly for their children has been acknowledged.
41
However, a priority
rule was stated, in case of disagreement of the parents. So for a certain age of
the children the mother was deemed to be more capable of taking care of
them, whereas the fathers capability to care for his child was set at an older
age. This is explained with biological, psychological reasons and with the
differing gender-specific instincts.
42
According to Article 1169 of the Civil Code,
the mother enjoys priority in having custody over her son until the age of two
and over her daughter until the age of seven. After that age, custody passes to
the father. Article 1169 does not differentiate between the marital and the
post-marital situation. It is, however, agreed that the priority rule applies only
in cases of divorce.
43
2.2. Mohammad Rezas reign 1941-1979
In 1941 Mohammad Reza Shah followed his father on the Peacock Throne.
44
It was a politically turbulent time, with the occupation of Iran by the allied
forces in the Second World War, the first emergence of political parties,
the consolidation of Parliament, the confrontation between the Shah and
Prime Minister Mossadeq and the nationalisation of the oil economy. These
events made the Shah politically unrelenting, but as far as legal reforms
were concerned, he continued the same secular and progressive path of
36 The Civil Code uses the Persian word negahdari and the Arabic expression hezanat as synonyms;
they are interchangeable and denote the same thing.
37 Katuzian, Vol. 2, p. 202. Safai, S.H., Emami, A., hoquq-e xanewade, Vol. 2, p. 162.
39 Arts. 1180, 1181 Civil Code.
40 Katuzian, Vol. 2, p. 139. Safai, S.H., Emami, A., hoquq-e xanewade, Vol. 2, p. 119.
42 Safai, S.H., Emami, A., hoquq-e xanewade , Vol. 2, Note 110, p. 124 et seq.
43 Safai, S.H., Emami, A., moxtasar-e hoquq-e xanewade, p. 330.
44 The throne is named after a famous throne formerly owned by the kings of Delhi, India. In
1739 it was carried off by Nadir Shah and held by the Shahs of Persia. It is called so from its
bearing a fully expanded peacocks tail done in gems.
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49
modernisation of his father. In 1963, universal suffrage for women was
introduced and in 1967 the first law for the Protection of the Family (FPA)
was enacted.
2.2.1 The Family Protection Act 1967
In May 1967 the first Family Protection Act was implemented. It introduced
important changes in almost all fields of family law, notably the institution of
special family law courts exclusively competent to hear family law cases. In
divorce law some significant changes were instituted, the most important being
the introduction of the exclusive judicial divorce. Any party desiring a divorce,
regardless of their gender, had to initiate court proceedings and petition for
divorce. Extra-judicial repudiation by the husband, as had been customary
until then, was invalidated with penalties for non-compliance. This was done
by introducing a certificate called the certificate of incompatibility (gawahi-e
adam-e emkan-e sazes) that was needed for the registration of the divorce.
45
This certificate could only be obtained by a court, after a hearing, where all
parties had the opportunity to plead. Thus the wife not only knew about the
intentions of her husband to repudiate her, but she also had the opportunity
to be heard.
The second important novelty was the expansion of the grounds on which
a wife could petition for divorce. Besides the four reasons in the Civil Code,
46
a wife could now base her demand for divorce on five further grounds. These
were:
(1) the husbands final conviction by a court to a prison sentence of more
than five years;
(2) the husbands conviction by a penal court for crimes that were shameful
and harmful to the wifes family prestige and honour;
(3) the husbands addiction to drugs;
(4) the contraction of a second marriage without the consent of the first
wife; and
(5) the husbands desertion of the family without reason.
47
2.2.2 The second Family Protection Act in 1975 (FPA 1975)
In 1975, the 1967 Act was broadened further. It again expanded the grounds
for divorce and, as a drastic change, ordered the husband to base his desire
for divorce on those grounds as well. Articles 8 and 9 of the FPA 1975 provide,
without reference to the Civil Code and its divorce provisions, 20 reasons
for divorce.
48
In fact the 1975 Act abolished the husbands privilege of
divorce and introduced equality of gender as far as application for divorce
was concerned. This clearly broke with traditional family structure in Iran
and gave women a strong tool to exit unwanted marriages.
45 Arts. 8 and 19, FPA 1967.
46 See 2.1.2.2.
47 See Mehrpur, H., hoquq-e zan, p. 148.
48 There are different grounds for men and women, See Arts. 8 and 9, FPA 1975.
50
The FPA 1975 furthermore introduced a post-marital maintenance claim
49
and the possibility of designating the mother as wali, which until then was the
prerogative of the father.
50
Article 15 of the FPA 1975 stipulated that in the
absence of the father, the mother could exercise the welajat in the best
interestsof the child.
51
Here for the fist time the concept of the best interest of
the child was introduced in child law.
The effects of this law are difficult to assess since only four years after its
enactment the Iranian revolution broke out, the monarchy was toppled and
an Islamic Republic, with the claim to establish a legal system based in Islam,
was promulgated. Uncertainty arose regarding the validity of all pre-
revolutionary laws.
3 THE ISLAMIC REPUBLIC OF IRAN
3.1 Validity of pre-revolutionary Acts and Statutes
There was no general order to invalidate all pre-revolutionary Acts and Statutes.
Some codes were revised, some were abolished, and here and there provisions
were changed and amended. To make sure that future laws would be
compatible with Islamic principles, Principle 4 of the new Constitution ordered
a specific body the Council of Guardians to supervise all parliamentary
Bills.
3.2 Legislation in Iran
According to Principle 71 of the Iranian Constitution, the Parliament, magles-
e surai-e eslami, is the legislative organ. Its competences are, however, limited
by Principle 91 of the Constitution that submits the activities of the Parliament
to the control of the Council of Guardians (sura-je negahban). The task of the
Council of Guardians is to make sure that no law proposed by the Parliament
is in conflict with Islamic Principles or the Constitution. The Council is
constituted of 12 members, six of whom are clerics appointed by the
revolutionary leader, and six law experts, appointed by Parliament upon the
recommendation of the Ministry of Justice. In case of incompatibility with
Islamic law, the draft is returned to Parliament for reconsideration.
If the Members of Parliament insist on the enactment of a law and if the
Council of Guardians still refuses, a third organ the Expediency Council,
magma-e tasxis-e maslahat-e nezam is brought in to arbitrate between the Council
and the Parliament and to decide the matter (Principle 112 of the
Constitution). The members of the Expediency Council are appointed by the
49 Art. 11, FPA 1975. In case of neediness, the not faulty divorced party could ask for post marital
maintenance, until his or her situation had bettered. See Katuzian, Vol. 1, p. 475 on the changes
introduced by Art. 11 FPA.
50 See 2.1.2.3.
51 Safai, S.H., Emami, A., hoquq-e xanewade, Vol. 2, Note 150, p. 167.
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51
revolutionary Leader.
52
In its decision-making, the Expediency Council does
not lean solely on religious principles but has to also take into account
considerations of expediency and of the good of the community.
53
3.3 Legal reforms in family law since 1979
3.3.1. Divorce law
I. THE ACT ON THE SPECIAL CIVIL COURTS
In the first months after the revolution, it was quite unclear whether the
provisions of the FPA 1975 were still applicable. Some Articles, such as Article
15 of the FPA were abolished.
54
Others, such as Articles 8 and 9 of the FPA
were not explicitly tackled, leaving some space for the argument of their
continued validity. In October 1979 the Act on the Special Civil Courts
55
shed
some light on the matter. Exclusive judicial divorce was upheld but reasons
for divorce were confined to those of the Civil Code and religious laws,
56
outlawing Articles 8 and 9 of the FPA 1975. The Act also introduced a procedure
foreseen in the Holy Quran
57
whereby referees have to be appointed upon a
divorce request in order to reconcile the couple.
58
Normally the referee would
be a family member, familiar with the problems. The judge would decide the
case after hearing the referees.
59
With Article 15 of the FPA abolished explicitly and Articles 8 and 9 of the
FPA abolished implicitly, the many efforts made to improve womens divorce
rights up until that time were eradicated by the stroke of a pen. Women were
again limited to the divorce grounds of the Civil Code, and the difficulty of
proving severe breaches of marital duties by their husbands.
II. REFORMS IN THE HUSBANDS RIGHT TO DIVORCE
These deficiencies were duly noted, but it was only in 1992 that Parliament
succeeded in implementing amendments in order to moderate the harsh
divorce provisions. As the divorce privilege of men as embodied in Article
52 On 18 March 1997, the leader of the revolution, Ayatollah Khomeini, appointed 27 new members
for five years and Hoat-ol-eslam Rafsanani as the Chairman of the Expediency Council.
53 This concept is derived from the Islamic principle of maslaha, see Nagel, T., Einfhrung in das
islamische Recht, 2000, p. 128.
54 Ruzname-e rasmi No. 10094 of 16 May 1979.
55 Ruzname-e rasmi No. 10088 of 11 October 1979.
56 Art. 3, Note 2, sentence 1, Special Civil Courts Act.
57 Sura 4, Verse 35: And if you fear a breach between the two, then appoint a judge from his
people and a judge from her people; if they both desire agreement, Allah will effect harmony
between them, surely Allah is Knowing, Aware.
58 Art. 3, Note 2, sentence 2, Special Civil Courts Act.
59 Whereas the Special Civil Courts Act foresaw this procedure only for divorces petitioned by
the husband, in 1992 this was extended to all divorce proceedings by a new Statute, the Act on
the amendment of the Divorce provisions, qanun-e eslah-e moqararat marbut be tala (Divorce Act)
Ruzname-e rasmi No. 13914 of 10 December 1992. The qualifications needed to be appointed
as referee were codified in Art. 1 of the executive order to Art. 1, Note 1, Divorce Act, Ruzname-
e rasmi No. 2306 of 28 February 1993.
52
1133 of the Civil Code is based on Islamic grounds, it seemed unrealistic that
the Council of Guardians would agree to its amendment. So, the reform efforts
concentrated on setting hurdles to divorce initiated by the husband. The
legislative efforts resulted in the implementation of the Act on the Amendment
of the Divorce Provisions, qanun eslah-e moqararat marbut be talaq, (Divorce
Act).
60
The Divorce Act reconfirmed the judicial divorce and the need for a
certificate of incompatibility for any party petitioning for divorce.
61
In addition
the Divorce Act introduced a compensation claim, ojrat-ol-mesl,
62
payable to
the wife in cases where the husband had petitioned for divorce, whereas the
wife wished to continue the marriage and no breach of her marital duties had
occurred. Ojrat-ol-mesl represents compensation for services rendered during
the marriage which from a religious perspective were not due by the wife and
thus must be remunerated.
63
No wife has a religious duty to carry out household
duties, or educate or take care of the children beyond the age limits indicated
earlier.
64
If, however, she undertakes this work on the unreasonable demand
of the husband, then she has the right to receive compensation.
65
The introduction of ograt ol mesl was meant to discourage the husband from
hasty and unreasonable repudiation and to improve the post-marital financial
situation of divorcees. Unfortunately, in practice, it had the reverse effect.
Knowing that a petition for divorce from the husband will make the ograt ol
mesl due, most men refrained from applying for divorce. Rather they chose to
behave in such a manner as to make life unbearable for their wives and push
them to initiate the divorce and thus lose their right to ograt ol mesl.
III. REFORMS IN THE WOMANS RIGHT TO DIVORCE
The main legal basis on which women can base their divorce motion is the
breach of marital duties by the husband. Article 1130 of the Civil Code gives
the instances of breaches.
66
Its wording has been changed several times in the
past years. In 1982 the notion of osr wa harag was introduced in Article 1130
of the Civil Code. It read:
If the continuation of marital life would put the wife in a situation of extreme hardship,
osr wa harag, she can initiate court proceedings and ask the judge to be divorced. If
the osr wa harag situation is proven to the court, the judge can force the husband to
repudiate his wife, otherwise the judge repudiates the wife on behalf of the husband.
60 See fn. 59.
61 Art. 1, Divorce Act.
62 Art. 1, Note 6, subsection A, Divorce Act.
63 Mehrpur, H., hoquq-e zan, pp. 44-45.
64 For example, a mother does not have the obligation to breastfeed her child: see Art. 1176,
Civil Code: A mother is not obliged to breast feed her child, unless the child cannot be fed
other than with its mothers milk.
65 In July 2002 the Parliament proposed a draft law to include the orat ol mesl in the inheritance
portion of the wife. See Abrar, daily newspaper, zanan, ograt ol mesl migirand (Women to get the
ograt ol mesl), 21 July 2002. The enactment of the law is pending, awaiting the decision of the
Council of Guardians.
66 Safai, S.H., Emami, A., hoquq-e xanewade, Vol. 1, p. 143.
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53
The Article did not give any precise definition of the expression of osr wa
harag. According to Shia law osr wa harag denotes hardship and difficulty.
67
The hardship must be proven to be unbearable for the wife and disrupt the
normal marital life in a true conjugal sense, so that she cannot comply with
her own marital duties. Her sense of physical and mental security must be
strongly affected for the hardship condition to be realised.
68
Since the law did
not specify the concrete circumstances where osr wa harag was fulfilled, it was
left to the discretion of the judge to evaluate the situation, case by case,
individually. A wife, being a university professor, would be judged differently
than a housewife from a lower social stratum. The need was felt to give women
more clarity as to how to plead osr wa harag and to provide the judge with a
more transparent definition that could be more easily reproduced.
In Spring 2000, Parliament drafted a Note to Article 1130 of the Code listing
instances of osr wa harag. It read:
69
The circumstances leading to osr wa harag and disrupting the marital community to
make conjugal life unbearable for the wife are inter alia:
desertion of the husband without any valid reason for at least six months;
the incurable addiction of the husband to narcotics;
the refusal of the husband to pay alimony and the impossibility to force him to do
so;
the contagious and hardly curable disease of the husband, or any physical disability,
that makes the continuation of marital life unbearable or bears a threat to the
health of the wife;
impotence or sterility of the husband;
a behaviour of the husband that is in radical contradiction with the family
background and social stratum of the wife and the spiritual, moral and ethical
circumstances of society, with particular regard to customs and usage of place and
time;
the inability of the husband to be just to his wife;
the non-compliance with court orders prohibiting the husband from exercising a
profession or an occupation that is not compatible with the dignity and prestige
of the wife, the husband and the family; and
the final conviction for crimes that are shameful for the dignity and prestige of
the family.
The Council of Guardians criticised the draft of being repetitive and not
bringing about any innovation and returned it to the Parliament for
reconsideration.
70
After another unsuccessful attempt of the Parliament to
have the law authorised by the Council of Guardians, the draft was submitted
67 See for example, Sura 22:78 ... He has chosen you, and has imposed no difficulties (harag)
on you in religion. or Sura 65:7 ... Allah puts no burden on any person beyond what He has
given him. After a difficulty (osr), Allah will soon grant relief.
68 See Haeri ahbaq, S. A., p. 990. Gafari-Lankarudi, Mabsut, (Dictionary terms of law), Volume
4, 1999, Note 9466.
69 As quoted in hoquq-e zanan (Womens rights) legal journal, Geramizadegan, ed., No. 15,
2000, p. 20.
70 Taswib-e mogaddad-e mazadeq-e osr wa harag dar magles (The new adoption of the sources of
hardship in the Parliament), Zanan (Women), monthly journal, Serkat, ed., Vol. 9, No. 65, p.
61.
54
in September 2000 to the Expediency Council.
71
In July 2002 the Expediency
Council published its version of Art. 1130, Note 1 of the Civil Code.
72
It reads:
73
For the purpose of this article osr wa harag denotes the creation of a situation where
the continuation of marital life is unbearable for the wife and represents extreme
hardship. When established by the competent court, the following circumstances
constitute instances of extreme hardship for the wife:
the desertion of the husband for at least six consecutive months or for a[n]
interrupted period of nine months within a year, without a valid reason;
the addiction of the husband to narcotics or his dependence on alcohol, leading
to disruption and harm of the family community, and his refusal or the impossibility
to force him to withdraw from his addiction within a medically indicated period
of time, necessary for withdrawal from addiction;
the conviction of the husband to a five-year jail sentence, or more;
the continued insulting behaviour and beating of the wife or any continued
misbehaviour of the husband that is clearly in conflict with custom and usage,
with respect to the situation of the wife and thus unbearable for her;
a hardly curable mental or contagious disease, or any other difficult to medicate
diseases, that are detriment to conjugal life.
This list is not conclusive and the judge can consider all other factors that are raised
in court as representing extreme hardship to grant a divorce to the wife.
The Note defines in a more concrete way when osr wa harag is fulfilled, even
mentioning addiction to alcohol, so far an unspeakable taboo. The problems
of proving and relying on osr wa harag to get a divorce have, however, not
been solved, and it remains to be seen whether this addition will help improve
womens situation.
74
It seems more likely that women will continue to rely on the contractual
divorce grounds of their marriage contract, as they have in the past. The model
marriage contracts that are given at the marriage office are drafted by the
state and contain all the divorce grounds of Articles 8 and 9 of the FPA 1975 as
options. The fiancs must agree and sign the clauses for them to come into
force. The contractual stipulations in marriage contracts are very often clearer,
individually negotiated and easier to prove. If a woman wants to get a divorce
because her husband has been sentenced to prison, she can rely on the legal
grounds of Article 1130 of the Civil Code only if he is convicted to five or
more years of imprisonment, whereas in the marriage contract she can stipulate
that even a one-day sentence is sufficient to file for divorce. If the husband
has signed this stipulation, the judge will have to accept it and grant her the
divorce.
71 See Ebrahimi, jek mah ba zanan dar magles (One month with the women in the Parliament)
Zanan, Vol. 11, No. 91, p. 20.
72 See Sadr, negahi be mosawabat-e magma-e tasxis-e maslahat-e nezam dar bare-je osr wa harag wa sen-e
ezdewag (A glance at the legislation of the Expediency Council concerning extreme hardship
and marriage age) Zanan, Vol. 11, No. 89, p. 22.
73 Ruzname-e rasmi, No. 16768, of 22 September 2002.
74 Mosgel-e asli-e zanan asbat-e osr wa harag dar dadgah ast (The main difficulty of women is to prove
osr wa harag in Court) Zanan, Vol. 11, No. 65, p.61.
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55
3.3.2. Marriage law
A further measure to adapt the law to social reality was the raising of the legal
age for marriage. Article 1041 of the Civil Code had set the age of marriage
for girls at 15 and for boys at 18 years.
75
In exceptional cases, where required
by expediency, the court could grant on request an exemption from the age
limits if the girl had reached at least the age of 13 and the boy the age of 15. In
1982 the provision was changed
76
and Article 1041 of the Civil Code reads:
Marriage before reaching the age of puberty is forbidden. Note 1: Marriage before
reaching the age of puberty is only allowed with the consent of the wali and under
consideration of the well-being of the ward.
The age of puberty was set by Note 1 of Article 1210 of the Civil Code:
The age of puberty is 15 full lunar years for boys and 9 full lunar years for girls.
Iranian officials defended this rule by stating that early marriage would
prevent illicit relationships.
77
In December 2000, however, Parliament drafted
an amendment to Article 1041 of the Civil Code raising the age of marriage
for girls from 9 to 15 years and for boys from 15 to 18 years.
78
The Council of
Guardians vetoed its enactment and referred the draft back to the Parliament.
79
The Parliament reconsidered its draft and submitted an amended draft putting
the age for girls at 14 and for boys at 17 years. The Council of Guardians
disagreed again, so that the Expediency Council had to step in to overcome
the differences of views between Parliament and the Council of Guardians. In
June 2002, the Expediency Council released its own version of Article 1041 of
the Civil Code.
80
Article 1041 of the Civil Code (new):
Marriage of a girl before the age of 13 solar calendar and a boy before the age of 15
is only permissible with the consent of his or her wali and the court.
So effectively the age for boys was only changed to the effect that the new
Article 1041 refers to solar years, not to lunar years,
81
as it used to be. As for
girls, the minimum age is now 13 solar years as opposed to 9 lunar years.
82
An
important change is the inclusion of the provision for the court to grant
permission for an earlier marriage which previously depended only on the
consent of the wali. It is furthermore most interesting to note that, according
to statistics, the average marriage age in Iran in 1966 was 18, in 1986, 20 and
in 1996, 22 years.
83
Considering the fact that in the first half of 2003 the average
76 Amendment of Art. 1041, Civil Code of 12 December 1983 confirmed on 5 November 1995.
77 See 10-year old files for divorce from her 15 year-old husband, Tehran Times, daily newspaper,
online edition, 26 September 2000.
78 See Mogawezi, P., Marriage age for girls in Iran goes up, Entexab, daily newspaper, 18 October
2000.
79 Fesahat, Z., Will marriage at early ages be legalised?!, Iran, daily newspaper, 7 December
2000.
80 Ruzname-e rasmi No. 16713 of 17 July 2002.
81 15 lunar years correspond to 14 solar years and 7 months.
82 9 lunar years corresponded to 8 solar years and 9 months.
83 Moawezi, P., Marriage Age for Girls in Iran Goes Up, Entexab, 18 October 2000.
56
marriage age in urban areas was 28, the age in rural areas must still be very
low. Thus the amendment to Article 1041 of the Civil Code must be hailed as
an effective though still insufficient step to find a more appropriate marriage
age.
3.4. Pending draft laws
In the past years a strong Parliamentary group, the committee for family,
women and youth affairs, has pursued with perseverance the agenda of
improving womens and childrens rights in Iran. In 2001-2002 its Executive
Parliamentary Committee submitted several draft laws to the Parliament, to
be discussed in the plenary session. The introductory note of one of the drafts
refers to some provisions of the Code dating back to the very inception of the
Civil Code and requests Parliament to reconsider them in the light of the
changed circumstances of time and place and the necessities of modern
times.
84
The drafts thus indicate the need to amend the old-fashioned
provisions for the wellbeing of society. It refers to the provisions on marital
maintenance (Article 1107 of the Civil Code), and the maintenance period
after the husbands death (Article 1110 of the Civil Code), the divorce rights
of the husband (Article 1133 of the Civil Code), custody (Articles 1169 and
1170 of the Civil Code) and guardianship (Articles 1184 and 1186 of the Civil
Code). As examples I shall discuss the intended changes in the custody and
divorce laws.
3.4.1 Custody
Amending the period of custody of the mother has been for a long time on
the agenda of the Committee. It had drafted two alternatives to amend Article
1169 of the Civil Code. One stream proposed to raise the period of custody
for the mother to care for her children until their age of puberty, i.e. for the
girls until the age of 9 and for boys the age of 15.
85
No unanimous support
could be found in Parliament and discussion showed a strong sensibility to
the issue. Thus a second alternative, that was not as drastic a change, was
considered. The Parliament agreed on 28 July 2002 on a draft law putting the
age of custody for children of both genders at 7 years, effectively only raising
the age of custody for boys.
86
The draft law was rejected by the Council of
Guardians, and is actually pending with the Expediency Council which has
not yet reached a decision on this issue.
87
84 Komisionha-je ergai qazaji wa hoquqi (Legal and judicial commissions), eslah-e mawadi az e
qanun-e madani (Amendment to certain provisions of the Civil Code), 22 January 2002, p. 2.
85 Komisionha-je ergai qazaji wa hoquqi, 22 January 2002, p. 4.
86 Komisionha-je ergai qazaji wa hoquqi (legal and judicial commissions), eslah-e made-e 1169-e
qanun-e madani (Amendment to Art. 1169, Civil Code), 24 November 2002. See also eslah-e
made-e 1169-e qanun-e madani, hoquq-e zanan, No. 22, April 2002, p. 55.
87 Hoquq-e zanan, No. 23, February 2003, pp. 29-30.
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57
3.4.2 Article 1133 Civil Code
The Committee also found courage to tackle the exclusive right of divorce of
men, by formulating an addition to Article 1133 of the Civil Code. A proposal
for amendment was submitted by Parliament on 25 August 2002. It reads:
A man has the right to divorce his wife, whenever he wants to and a women has, just
as the man, the right to address the court and ask for divorce in compliance with the
legal provisions.
The Council of Guardians regarded the amendment as not useful as it
considered it to be just a repetition of the actual situation. It argued that
women can already apply for divorce under Articles 1129 and 1130 of the
Civil Code, so that it would not make sense to re-state it in Article 1133 of
the Civil Code.
88
It thus rejected the addition.
89
The views of the Council of
Guardians correspond to the actual facts: women can apply for divorce under
the conditions of Articles 1129 and 1130 of the Civil Code. It can, however, be
argued that by adding the explicit right of women to divorce their husbands
just as they can, the legal possibility of divorce for women could be conceived
as an independent right and not as it is now, as the exception to the rule. The
supplement could be interpreted in due course in direction of equality in
divorce laws. The decision is now with the Expediency Council.
3.5 Remarks
It is difficult to assess the destiny of these pending laws. According to the
Tehran Times the Expediency Council has since its inception favoured in
70 per cent of the cases the views of Parliament. In the first half of 2002 all
seven cases coming before the Expediency Council were decided in favour of
the Parliament, according to Mohsen Rezai, the Secretary-General of the
Council.
90
The legal adviser to the committee for family, women and youth
affairs, Asraf Geramizadegan, who is also the editor of the legal journal, hoquq-
e zanan, said that the Expediency Council has shown more lenience in accepting
amendments to family laws that in other politically more sensitive fields.
91
The views are not unanimous. Some Members of Parliament even dispute
the Expediency Councils right to change the draft law and to offer its own
88 Hamsahri, Daily Newspaper, 29 September 2002.
89 Hoquq-e zanan, No. 23, February 2003, p. 30.
90 Tehran Times, 22 August 2002.
91 Interview with Geramizadegan in July 2003 in Tehran.
58
version. Referring to Principle 85 of the Constitution,
92
Fateme Rakui, Member
of Parliament and President of the committee for family, women and youth
affairs, considers the Expediency Councils duty only to be arbitration between
Parliament and the Council of Guardians, with no power to act as a legislative
body.
93
Principle 112 of the Constitution, which defines the Expediency
Councils role, only mentions its duty to break the deadlock between Parliament
and the Council of Guardians.
94
So far however, the Expediency Council has
been acting as a legislative body sui generis.
4 JURISDICTION OF FAMILY COURTS
Unlike the substantive law, the judicial organisation of the Family Court has
been subject to changes. The Family Protection Act introduced for the first
time the exclusive competence of Family Courts to hear family law cases.
95
This exclusive competence has survived the political changes in the country
and has been reconfirmed by the Special Civil Courts Act
96
as well as by the
Divorce Act.
97
Until very recently, only one Family Court was competent in
Tehran to hear the family law cases of its 12 million inhabitants. Fortunately,
in the summer of 2003, a second Family Court Complex was established. Most
recently a legal advice centre has opened next to the Family Court Complex
1. The staff give free legal advice and guidance and answer procedural
questions.
92 Principle 85 of the Constitution: Section 1) The right of membership is vested with the
individual, and is not transferable to others. The Assembly cannot delegate the power of
legislation to an individual or committee. But whenever necessary, it can delegate the power
of legislating certain laws to its own committees, in accordance with Article 72. In such a case,
the laws will be implemented on a tentative basis for a period specified by the Assembly, and
their final approval will rest with the Assembly. Section 2) Likewise, the Assembly may, in
accordance with Article 72, delegate to the relevant committees the responsibility for permanent
approval of articles of association of organisations, companies, government institutions, or
organisations affiliated to the government and or invest the authority in the government. In
such a case, the government approvals must not be inconsistent with the principles and
commandments of the official religion in the country or with the Constitution, which question
shall be determined by the Council of Guardians in accordance with what is stated in Article
96. In addition to this, the Government approvals shall not be against the laws and other
general rules of the country and, while calling for implementation, the same shall be brought
to the knowledge of the Speaker of the Islamic Consultative Assembly for his study and
indication that the approvals in question are not inconsistent with the aforesaid rules.
93 Hamsahri, 24 June 2002 commenting the decision of the Expediency Council on the marriage
age.
94 According to Principle 112 of the Constitution, the Expediency Council shall meet at any time
the Council of Guardians judges a proposed Bill of the Parliament to be against the principles
of Islam or the Constitution, and the Parliament is unable to meet the expectations of the
Council of Guardians.
95 Ain name nahwe-e egra-je ahkam wa tasmimat-e dadgah-e xanewade (Procedural provisions
for the enforcement of the judgments and decisions of the Family Court) of 4 April 1975, No.
7/95.
96 Art. 3, Special Civil Courts Act.
97 Art. 1, Note 1, Divorce Act.
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59
4.1. The Tehran Family Law Courts
98
The Tehran Family Law Court 1 encompasses 60 departments presided over
by a male judge. Since 1992, female advisers can be appointed as legal
consultants to the Family Courts.
99
The female consultants perform the same
work as the presiding judges, but cannot make an independent judgment. In
the summer of 2003, 30 per cent of the judges had appointed a female
consultant in their departments. In should be remembered that women were
allowed to sit as judges in Iran only from the mid 1970s. In 1979, when this
right was revoked, there were around 60 female judges in the whole country.
Some judges were offered administrative jobs in the justice system, most of
them became lawyers.
100
Each department has approximately 400 cases a month. Office hours are
from 8 am to 2 pm. The judge has as an average of nine appointments each
day. Besides the summoned parties, anybody who seeks legal advice can address
the judge for help and guidance. The courtroom is also the working room of
the judge, the female consultant if any and the secretary. There is no obligation
to be represented by a lawyer, most parties have no legal support and it is very
common to attend the court with family members. This lengthens the
proceedings because the judges will have to guide and advise the parties,
control the motions, act as mediator whenever the parties lose their temper
or refuse to talk. Most motions as well as the protocol are hand written. The
judge takes the minutes and announces the verdict.
There are two educational paths enabling a person to pass the entry exam
to become a judge: law studies at the law faculty, or religious studies of Islamic
law at one of the theological seminars. Judges of the Family Courts must have
at least four years working experience and be married. In 2003, half of the
judges had studied law at university and half of them had a theological
education.
101
4.2. Cases
The Family Court has exclusive jurisdiction over all matters of personal status.
102
Most cases are divorce petitions and quarrels over custody. Actions for the
payment of the dowry and of maintenance also constitute a large part of the
98 This account is based on field research conducted in the summer of 2000 and 2002 at the
Family Court Complex 1 in Tehran, at mejdan-e arg. The court in Tehran is unique as Tehran
is Irans capital and biggest city with approximately 12 million inhabitants, a great migration
from rural areas and a deep gap between the rich in the North and the poor in the South.
Thus Tehrans court are not exemplary for all Iranian courts. For an account of family trials
in Iran, see Mir-Hosseini, Z., Marriage on trial, a study of Islamic Family Law in Iran and Morocco,
1993.
99 Article 1, Note 5, Divorce Act. See Ansari-Pur, M.A., Country Survey Iran, Yearbook of Islamic
and Middle Eastern Law, Vol. 2 1995, p. 247.
100 In pursuing its goal to eliminate women from the courts the clerical establishment reactivated
an argument of the Shah times: women, they argued, were considered to be too emotional
to cast an objective vote.
101 Interview with Hassan Hamidian, the head of the Tehran Family Court 1, in July 2003.
102 Not included are matters of inheritance law, that are dealt with by the ordinary Courts
(dadgah-e omumi).
60
courts work. The judgments of the courts are not published. There are,
however, compilations of cases gathered by lawyers or researchers that can be
consulted.
103
I shall now focus on some cases concerning divorce petitions.
4.2.1. Consensual divorces
Where both parties want a quick and quiet divorce, the divorce will often be
consensual. Consensual divorces need no appointment and the parties can
come to any competent judicial department of the Family Court to have their
marriage dissolved. In most cases, the couple has actually lived apart and agreed
to separate. Sometimes it is the husbands second marriage that makes his
first wife ask for divorce. Young couples aged between 17 and 21, who have
married because of societal pressure, often decide to end the relationship
after a short period of married life. Most of those divorces are filed in the first
two years of marriage.
In all cases of consensual divorce the parties do not need to state any reasons
as long as they agree on all relevant points that need regulation in the certificate
of incompatibility. These are: the payment of the dowry, the return of the
dower, ojrat-ol-mesl if any, the division of assets, other financial claims stipulated
in the marriage contract, settlement of custody and the amount of mainentance
for the children, and finally visiting rights.
104
The judge reads the agreement
out to the parties to make sure that they have both agreed to it and that no
party is acting under duress. Only if a stipulation is against the law or good
morals and custom will the judge interfere with it, otherwise his role is rather
minor in these proceedings.
4.2.2. Divorce motions
According to Hassan Hamdn, the head of the Tehran Family Court 1, the
divorce rate has gone up by 15 per cent, with 80 per cent of all divorce requests
being submitted by women.
105
The average number of divorces in Iran has
been 7.67 per 10,000 people while the average number of marriages was 93
per 10,000 in recent years. The Province of Yazd in southern Iran has had the
highest rate of marriage and the lowest rate of divorce in these years. The
Province of Tehran with 14.03 per cent had the highest number of divorces
among other Iranian provinces last year followed by the Province of Qom.
106
103 See Katuzian, edalat-e qazaji - gozide-e ara (Judicial Justice), 1999. Bazgir, Y., ed., Araj-e diwan-e
ali-e keswar dar umur-e huquqi (Judicature of the Supreme Court in Civil Matters), 3 Volumes,
1998; qawaed-e feqhi wa huquqi dar Araj-e diwan-e ali-e keswar (Principles of Islamic Law in the
Judicature of the Supreme Court), 2000. Mehrpur, H., ed., Magmue-e nazarijat -e sura-e negahban
(Compilation of the Views of the Council of Guardians), 3 Volumes, 1992. Kamyar, M., Gozide-
e araj-e dadgahha-e huquqi (A selection of the Judgments of the Civil Courts), 4 Volumes, 1997-
1998.
104 According to Art. 1, Note 3 of Divorce Act, all the financial claims of the divorcee must be
fulfilled in cash when the divorce is registered at the official offices for marriage and divorce,
see also Safai, S.H., Emami, A., hoquq-e xanewade, Vol. 1, p. 280.
105 80 per cent of divorce requests are made by women, Entexab, 26 January 2002.
106 Afruzmanes, M., Triangle of Unemployment, Poverty and Addiction the Main Cause of
Divorce in Iran, Hambastegi, daily newspaper, 2 and 3 November 2002.
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61
Insufficient information and the wrong expectations of the couple before
marriage are considered main factors contributing to the increase of the
divorce rate. Financial problems caused by the severe economic situation and
the husbands inability to provide for maintenance tend to disrupt the
functioning of conjugal life. Furthermore, the husbands addiction to narcotics
or alcohol accounts for 67 per cent of divorce cases.
107
Some women file for divorce with the intention of frightening their husbands
and have them take a solemn oath (taahod) to ameliorate their behaviour
and observe their marital duties. The judge then takes on the role of a mediator
who guides the couple to reach a reconciliation and improve their conduct.
In cases, however, where the motion to divorce is meant seriously, the problems
are serious as well. In Iranian society a divorced women has a low standing,
especially if children are involved. In these cases most judges are very reluctant
to grant the divorce on the first motion. They tend to play down the marital
problems of the couple and draw the fatal consequences of divorce in lively
colours. Insofar as the parties do not need to be represented by a lawyer,
divorce proceedings resemble more dispute resolution than litigation.
4.2.3. Obstacles and problems
The main problem for women is to prove a breach of marital duties by their
husbands. The judge will ask for witnesses, medical certificates etc. and is not
usually inclined to grant a divorce for what he considers to be minor marital
frictions. Very often the disputes revolve around the point in time when the
marital breaches occured. As the breach of the husbands duty gives the wife
the right to refrain from performing her own duties without losing her own
rights and vice versa, both parties will want to prove that it was the other one
who started the faulty behaviour.
If a husband does not fulfil his financial duties, his wife can have him arrested
and put in jail until he complies.
108
The mingling of civil law and penal sanction
has been very much criticised. The possibility of the wife to ask for such a
court order is expected to have some deterrent effect on an unwilling but
able husband to pay.
109
In many cases, however, the husband is financially
unable to fulfil his duty.
110
The proceedings can be lengthy if the parties are not willing to cooperate
to reach a solution or when they actually refuse to obey the court order once
a compromise has been reached. If a woman wants to shorten the divorce
proceedings she can try to reach an agreement with her husband, by
negotiating her dowry. She will either accept a lesser amount or give it away
all together. In fact very often the judge will encourage a wife who is willing to
107 Entexab, 26 January 2002.
108 Art. 642 of the Islamic Penal Code, qanun-e mogazat-e eslami, of 22 May 1996, Ruzname-e
rasmi No. 14943 of 24 June 1996.
109 This is how Art. 642 of the Islamic Penal Code is conceived. Only an able but reluctant
husband can be jailed for non-payment of maintenance.
110 Ebrahimi, be dalil-e pardaxt nakardan-e mahrije: 1000 mard dar zendan, (1,000 men in jail for
non-payment of the dowry) Zanan, Vol. 11, No. 87, pp. 20-21.
62
divorce. make a concession on her dowry, in order to convince the husband
to agree to the divorce. Sometimes she will try to trade her dowry for custody
over her children, if they have passed the ages where she has legal custody.
These practices have no legal ground, but unfortunately they happen quite
often.
5 CONCLUDING REMARKS
Iranian family law departs from the classical concept of family, based on the
productivity of men outside and the productivity of women inside the house,
where men must provide for the material needs of the family while women
take care of the spiritual functioning of the family. This idea is mingled with
the strong Iranian patriarchal mentality, where men lead and women follow.
As long as society was shaped around this ideal, the inconsistencies were not
apparent. Iranian society has, however, evolved and changed considerably in
the last 20 years and these changes are becoming visible everywhere.
The Pahlavis endeavours to improve womens rights was one of the first
steps towards change. This step was, however, taken by an elite wishing to
modernise the system from above, with little movement from the general
population. Furthermore, the legal reforms did not match the political and
societal pressures of the time. Although the Family Protection Acts gave women
more rights than any other regime had done before, women were at the
forefront of the 1979 revolution. Unfortunately most aspirations have been
disappointed and achievements revoked. In the first year of the revolution
the political situation was so shaky that no legal effort in the field of family law
was pursued. When in 1980 the war between Iran and Iraq broke out, men
and women were asked to fulfil their patriotic duty and all attention was focused
on the war and internal problems were banned from the political agenda.
Women filled the empty places of men in industry and the labour market and
assumed their husbands, fathers, brothers and sons roles while they were
engaged on the battle field, many of them returning disabled and unable to
earn a living.
At the same time, the education and literacy policies of the Islamic Republic
have been very strong. During the last 20 years the literacy rate of the whole
population has gone up, with the womens literacy rate reaching unexpected
heights. Whereas in 1975 womens illiteracy in rural areas was 90 per cent and
more than 45 per cent in urban areas, today the nationwide literacy rate for
girls aged between 15 and 24 has risen to 97 per cent. Iran has won three
times in a row the UNESCO literacy award for its literacy movement, and the
UNESCO plaque of honour for the year 2000 for its plan to educate illiterate
girls in rural areas.
111
In 2002, for the first time, female students in state
universities outnumbered male students.
112
111 Tehran Times, 4 October 2000.
112 The Economist, 16 October 2003.
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63
Women have come to occupy important posts in the administration: they
are physicians, lawyers and engineers.
113
In 1976, the percentage of women in
the scientific, technical and specialist fields was only 13 per cent. The ratio
grew to 32.8 per cent by 1986 and 39.7 per cent by 1991. More than 30 per
cent of public sector employees are women mostly working in the medical
and educational fields.
114
Most of these women contribute considerably to the
family income and some do not see the necessity to obey their husbands for
economic reasons. In some cases economic pressures are such that even those
women wishing to abide by the classical role model
115
are sometimes forced to
enter the labour market to support the family. They cannot stay home without
jeopardising the financial balance of the familys income. In many cases the
husband will take on several jobs to be able to assume his role as the provider
of the family.
With social realities changing, the ideal prescribed by religious law and the
Civil Code is being challenged. In other words, while the legal system has its
roots in the period of traditionalism, the economic, social and cultural
attributes of society have undergone and are undergoing a process of
transformation. As a result, the legal system is no longer capable of responding
to the needs of this stage of transition of the countrys political, economic,
social and cultural development. The shortcomings of the legal system are
more poignantly felt by women than men. Laws and statutes legislated or
issued after the revolution and their fierce application against women has
lent credit to the idea that the Islamic Republic of Iran is standing firm on its
opposition to grant women their rights and gender equality in general.
116
There
are, however, great openings for Iranian women to exert their influence over
the political processes and give effect to their potential role and thus alter
their destiny. A thriving womens lobby has been active in challenging the old-
fashioned provisions of Iranian family law.
117
This is a generation that is more
exact and less patient with conventional political arrangements. They have
come to understand that it is not always the Islamic premises of the legal
system but the patriarchal customs and usages of society and the reluctance to
break with century-old traditions that jeopardise endeavours to introduce
changes.
113 Womens employment still shows, however, immense deficiencies and the employment rate
is still low. See Muajedi, M., A statistical glance at womens employment in Iran, Zamine,
monthly journal, Dawudi, M., ed., No. 39-40, pp. 64-66.
114 Zadeh, V., Womens Employment Situation in Iran, Hamsahri, 22 April 2001.
115 See Todays Women of Iran are Satisfied with their Family Life, Iran, 8 September 2001.
According to this article, most Iranian women are satisfied with their life at home and would
opt for it again, if they had a chance to reconsider the matter. The article states furthermore
that most women believe that they should, to some extent, be obedient to their husbands
and accordingly men should, to some degree, be loyal to their wives. Most employed women
spend their incomes under supervision of their husbands and their bonus and overtime
revenues on household affairs. They also believe, however, that womens authority at home
has increased substantially compared to the past.
116 Kar, M., Freedom Struggle and Iranian Womens Movement, lecture delivered to the
Institute for Middle East Studies in Washington, D.C., 23 October 1999.
117 See Amirpur, K., Islamischer Feminismus in der Islamischen Republik Iran, ORIENT 40 (1993) 3,
pp. 439-452.
64
And there are still other obstacles to overcome. There is a general mistrust
of the people running the legal system. Law is considered a tool in the hands
of a certain elite rather then a remedy to sanction wrongful actions or bring
relief. There is no trust in the judicial system, the outcome and the duration
of court proceedings being considered dependent on the character and
mentality of the judge and there is the suspicion of corruption at all levels.
Added to this impression is the fact that judges are indeed overworked and
swamped with a huge number of cases.
118
Furthermore, the lack of information or even the sheer ignorance of the
law, the rights of women, children and the population as a whole is striking.
119
In an interview with the daily newspaper Noruz, Sirin Ebadi, the Nobel Peace
Price Winner of 2003, emphasised the importance of an early legal education
and advocated the introduction of law courses at school level to inform pupils
of both gender of their respective rights and the law in general.
The most significant issue, Ebadi explained, is to keep all the individuals
in a community informed of the law. I firmly believe that every one, and not
only women, should be acquainted with the law. Once it is understood by
every one that the law applies to all and all should abide by it, no ones rights
would be violated, neither would anyone violate others rights. Such a trend
of thinking can only be promoted among families by teaching them the
principles of law. Another way is to train the social aid workers employed in
family planning centres nation-wide to enable them to provide their clients
with proper advice on simple primary legal issues. This might work out as a
practical solution.
120
118 According to statistics, some 10 million cases should have been handled in 2000, but only
half of them were closed; see Arman, D., Several Judges and 10 Million Cases, Iran, 1 May
2002.
119 Some research centres have taken up the task of informing the public and continuously
publish little brochures on womens rights, such as the research association for womens
rights in Tehran, goru-e paguhestgaran-e massael-e zanan. So far it has produced a series titled:
What you need to know about the law, with every brochure dealing with another subject,
such as stipulations in marriage contracts, divorce or custody.
120 Bigani, Cabinet approves Irans Joining the global Convention on Discrimination against
Women, Noruz, daily newspaper, 13 February 2002.
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65
Foreign Investment Protection
in Saudi Arabia
Jean-Benot Zegers*
In late 1943, American geologist Everette Lee DeGoyler, who had spent a
considerable amount of time prospecting for oil in Saudi Arabia, recognised
that he was investigating something for which no precedent existed in history.
Indeed the following year, one of the members of DeGoylers exploratory
mission was to inform the U.S. State Department, The oil in this region is the
single greatest prize in all history.
1
Saudi Arabia has long since become one of the worlds primary oil exporting
nations and is currently the biggest producer of petrochemical by-products.
Throughout the mid-1970s and early 1980s, the Saudi economy benefited
enormously from the influx of petrol dollars, which reached a high point in
1981 with earnings from oil alone estimated at US$119 billion,
2
attracting
vast foreign interest as the Saudi government embarked on ambitious
infrastructure projects. However, with the discovery of oil reserves elsewhere
and increased production by other oil-producing countries, combined most
recently with the U.S. led war on Iraq and uncertainty about the future stability
of the region, the price of crude oil has fluctuated unpredictably and Saudi
Arabia has seen its average earnings from the sale of crude oil plummet over
the past two decades. Government spending has been curtailed and lucrative
government contracts are a thing of the past.
As a result of diminished government expenditure, recently the focus of
investment opportunity has shifted to the private sector to meet the needs of
* Jean-Benot-Zegers is a manager with Freshfields Bruckhaus Deringer International Arbitration
Group, Paris, and has been on secondment to the Law Firm of Salah Al-Hejailan (LFSH) since
April 2001.
1 Daniel Yergin, The Prize the Epic Quest for Oil, Money and Power (Simon & Schuster Ltd, 1991),
p. 393.
2 Ibid, p. 747.
3 In fact, the Saudi population is growing at a rate of 2-3 per cent per annum, with 60 per cent
of Saudis under the age of 20. Unemployment among Saudi males is conservatively estimated
at 14 per cent and every year 100,000 graduates flood the job market, prompting the Saudi
government to implement tougher rules requiring local and foreign employers rapidly to
reach target figures of at least 75 per cent Saudi employees in all sectors.
66
Saudi Arabias steadily rising population and increased consumer demand.
3
In turn, these factors have led to a surge in the demand for electricity, water,
communications, transport, health care, education, training and consumer
goods.
The response of the Saudi government has been to drive through reforms
aimed at liberalising those sectors of the Saudi economy previously controlled
by the state and reserved to Saudi nationals. Pursuant to the new Foreign
Capital Investment Law which came into effect in April 2000, foreign
companies can now establish wholly foreign-owned subsidiaries or branch
offices in Saudi Arabia, thus benefiting from all the privileges hitherto enjoyed
only by Saudi companies, including the right to transfer funds and profits, to
own and dispose of real estate and to sponsor foreign employees. In February
2003, the Supreme Economic Council approved the revision of the so-called
negative list, thus signalling the Saudi governments intention to open up
to foreign investors certain sectors of the Saudi economy previously excluded
from foreign investment, including parts of the telecommunications sector,
insurance, educational services, publishing and distribution services (including
wholesale and retail trade).
4
Perhaps one of the most ambitious projects to date involves the expansion
of the nations gas sector to ensure that there is sufficient gas for the next
generation of power, desalination and petrochemical projects. The Saudi gas
initiative as it has been dubbed, is estimated to be worth at least US$ 25 billion
and is the Middle Easts biggest project of the decade.
5
Other major initiatives
and infrastructure projects include the consolidation, in April 2000, of the
countrys ten regional power companies into a single joint-stock company,
now known as Saudi Electricity Company (SEC), followed by the recent
creation of the Saudi Electricity Regulatory Authority which will act as the
regulatory body in connection with the restructuring and reorganisation of
the Saudi electricity sector, the joint initiative by the Saudi Water Conversion
Corporation and SEC to commission up to four independent water and power
projects
6
(including the construction of four desalination plants) throughout
the country by January 2008
7
and the proposed expansion by the Saudi Railway
Organisation of its existing railway network.
8
Given the significant capital expenditure involved in such projects, coupled
with concerns over the future stability of the Saudi market, not to mention
the region as a whole, one of the primary concerns of foreign companies
seeking to invest in these expanding sectors of the Saudi economy will be the
degree of protection such investors are likely to be afforded under Saudi law.
4 Reported in an article entitled, Kingdom opens up new sectors to foreign investors, Saudi
Gazette, 3 February 2003.
5 Angus McDowall, Seizing the initiative, MEED, 15 February 2002, p. 4.
6 It is intended that the Saudi government will have a 32 per cent stake in each project, with
SWCC and SEC holding 60 per cent and 8 per cent, respectively.
7 At the time of writing, both the railway initiatives were still at the tender stage.
8 This project includes the construction of over 1,600 kilometres of new railway lines throughout
the country including from Riyadh to Jeddah (about 950 km) and from Dammam to Jubail
(about 115 km), as well as a rail link connecting Jeddah to Makkah and beyond to Madinah
and Yanbu (about 570 km).
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Typically, foreign investors will want to know how a Saudi court would treat
them in the event of a contractual dispute with a Saudi entity, the effectiveness
of contractual and legal remedies under Saudi law, including recourse to
litigation before the Saudi courts or arbitration, as well as alternative means
of recourse through foreign institutional arbitration or under various
international treaties to which Saudi Arabia is a signatory (and, where
appropriate, the recognition and enforcement of foreign arbitral awards).
Outline
In addressing such issues, this article seeks to outline the degree of protection
available to and the risks facing foreign investors seeking to rely on existing
means of legal recourse in Saudi Arabia. Accordingly, in Section 1 of this
article we propose to present an overview of the sources and nature of Saudi
law, with particular emphasis on general contractual principles under Islamic
law (sharia). Against this background, in Section 2 we will focus on the Saudi
judicial system itself, with particular emphasis on some of the advantages and
pitfalls commonly encountered by practitioners in Saudi Arabia. In Section 3,
we will look at current Saudi legislation applicable to foreign investors focusing,
in particular, on the advantages and shortcomings of the Foreign Capital
Investment Regulations, which came into effect in April 2000. In Section 4,
we discuss the role of arbitration as an alternative means of recourse available
to foreign investors in Saudi Arabia, including domestic and foreign
institutional arbitration, as well as the implications of arbitration under various
bilateral and multilateral treaties to which Saudi Arabia is a signatory.
1 SOURCES AND NATURE OF THE LAWS OF
SAUDI ARABIA
1.1 Introduction
Islam is both a religion and a way of life in Saudi Arabia. More than anywhere
else in the Muslim world, Islamic law underpins every aspect of life, from the
administration of justice to the formulation of government policy, from social
convention to commercial relations. The tenets of Islamic law are enshrined
in the Holy Book (Quran),
9
as well as in the deeds and sayings (Sunna)
10
of
the Prophet Mohammad. The Quran and the Sunna are considered to be
primary sources of Islamic law, while the opinions of Islamic scholars reached
9 Muslims believe that the Quran is the sacred will of God as expressed to the Prophet
Mohammad. The precepts and tenets of the Quran are to be followed strictly in all the affairs
of Muslims, whether of a legal or moral nature.
10 Sunna (literally, tradition), the body of deeds and utterances (hadith) of the Prophet
Mohammad, is a code of universal rules of conduct and acceptable views. Compilation of the
hadith was completed approximately in the 10
th
century, some three centuries after the
emergence of Islam. The number of hadith was enormous.
Foreign Investment Protection in Saudi Arabia
68
by consensus (idjima)
11
and reasoning by analogy (qiyas)
12
are its secondary
sources. Together, they are known as the sharia.
13
In addition, a number of
royal decrees and implementing regulations have come into force over the
past few decades in order to address matters not specifically covered by the
sharia. This growing body of legislation, together with the sharia form the
nations legal system.
1.2 The four orthodox schools of Sunni jurisprudence
The sharia was largely developed between the 7th and 10th centuries A.D. by
the early Islamic theologians (ulema) who established the four orthodox
schools of Sunni jurisprudence (as opposed to the Shiite branch whose
adherents reject the first three successors to the Prophet Mohammad in favour
of his son-in-law Ali), known as the Hanbali, Hanafi, Shafii and Maliki schools
of jurisprudence. Broadly speaking, these four schools are distinguished by
the degree of flexibility in their interpretation of the primary sources of Islamic
law. The Hanafi School is considered to be the most flexible and tolerant
school in this regard, while the Hanbali School, which is predominant in Saudi
Arabia, is the most rigid and rejects any deviation from the Sunna outright.
14
1.3 The Fundamental Law
Traditionally, Saudi Arabia has been seen as an absolute monarchy, where the
ruling monarch exercises supreme executive, legislative and judicial power.
However in 1992, King Fahd bin Abdulaziz Al-Saud, the nations current ruler,
issued a fundamental law in a bid to organise power in the Kingdom. The
fundamental law provides, among other things that:
The Constitution of the Kingdom is the Quran and the Sunna of the
Prophet.
15
Power in Saudi Arabia is based on justice, consultation (al shura) and
equality in accordance with the sharia.
16
Power is given to the sons of King Abdulaziz bin Abdulrahman Al-Saud
and to the sons of his sons, subject to the following rules: (i) allegiance
shall be pledged to the best among the sons or sons of sons of King
11 Islam has adapted to the changing conditions of life through the religious sanctification of
new traditions and the demonstration of their correspondence with the Sunna. Thus, when
faced with issues not addressed in the Quran or Sunna, early Islamic jurists arrived at idjima
(a consensus of individual opinions). When idjima was reached among the ulema, it became a
rule of law.
12 Where none of the above sources related to the matter in question, decisions were reached by
analogy (qiyas) to matters dealt with in the Quran or Sunna. The process of legal reasoning
by analogy has been encouraged in recent times, so as to adapt the sharia to the requirements
of modern life.
13 Literally, the laid down path to salvation.
14 Alexei Vassiliev, The History of Saudi Arabia (London, Saqi Books, 2000), p. 67.
15 Article 1 of the Fundamental Law.
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69
Abdulaziz; (ii) the King shall choose the Crown Prince however, he
may also revoke him; and (iii) citizens shall pledge allegiance to the King.
17
The judiciary is independent
18
and when exercising their functions, judges
are only subject to the authority of the sharia without restricting it to the
Hanbali doctrine.
19
1.4 Recent developments in Saudi law
While the legislative provisions of the Quran are deemed to satisfy all aspects
of Muslim society, in reality these are complimented by Royal decrees and
implementing regulations to address situations where the Quran is silent.
Thus, when a regulatory need is perceived, the Council of Ministers undertakes
the approval of draft principles leading to the issuance of a royal decree or a
resolution, which normally becomes effective after promulgation in the Official
Gazette (Umm al-Qura). Another means of regulation is through the issuance
of ministerial circulars or instructions. Technically, resolutions, circulars and
instructions are not laws and are considered valid only to the extent that they
do not contradict the sharia. However, this recent legislative regime provides
a reasonably adequate legal framework for many modern commercial
transactions through the growing body of regulations that apply to such
transactions. This is the theory underlying the interaction of the sharia and
such regulatory regime.
1.5 General contractual principles under the sharia
The sharia firmly upholds the binding force of contract, the freedom to
negotiate terms (provided such terms do not violate divine law
20
) and the
independent settlement of disputes. The principle that a contract embodies
the sacred law of the relationship between the parties is central to the sharia
and if most typically expressed in the maxim the contract is the law of the
parties.
21
No distinction is drawn between treaties, state contracts and private
contract. Indeed, early Islamic scholars considered that such contracts had
equal validity and should be performed in good faith.
Moreover, the respect and inviolability of private property is a fundamental
principle under the sharia.
22
In accordance with Chapter IV, Verse 29 of the
Holy Quran, it is stated: O ye who believe! Eat not up your property amongst
yourselves in vanities, but let there be amongst ye traffic and trade by mutual
goodwill. Classical Islamic jurists have interpreted this verse to mean, One is
17 Ibid.
20 The sharia forbids usury and gambling, as well as trading in certain goods, including alcohol
and pork items.
21 Dr Yahya Al-Samaan, The legal protection of foreign investment in the Kingdom of Saudi Arabia (Dar
Al Andalus for Pub. & Dist., 2000, 1st Edition), p. 113.
22 Ibid, p. 57.
70
not allowed to take anothers property without legal cause.
23
The inviolability of private property has also been asserted in the teachings
of the jurists of the four schools of Islamic jurisprudence. According to Ibn
Taimyya, a pre-eminent jurist of the Hanbali School, the first duty of the
State is scrupulously to respect private property.
24
The sharia guarantees the protection of rights and property of Muslims
and non-Muslims living within an Islamic state. However, it should be noted
that there exist two exceptions to the principle of inviolability of private
property under the sharia, namely, expropriation by the state and the
enforcement of a final judgment against a debtors property.
With respect to the former, the sharia only admits expropriation if the
public interest in doing so outweighs the prejudice to the owner of foregoing
his rights of private ownership, subject always to the payment of just
compensation and Saudi Arabia has shown strict adherence to such doctrine.
It should also be noted that compensation for the loss of future profits is
prohibited under the sharia on the grounds that such claim would be
tantamount to the payment of unearned profits, hence speculative in nature.
In relation to the latter exception, foreign investors are strongly advised to
insist on the inclusion in the contract of a clause specifying payment of
liquidated damages or delay penalties as a means of compensation in the
event of delay.
Thus, Saudi courts (namely the sharia courts and the Board of Grievances
25
)
have declined to award compensation to parties claiming loss of future profits
or to approve the payment of interest on overdue amounts (regardless of the
reason for the delay), on the grounds that both are unenforceable under the
sharia.
26
In principle, therefore, the sharia respects the rights of contracting parties
to fix the terms of their relationship. Generally this means when doing business
in Saudi Arabia the foreign businessman may make such contractual arrange-
ments as he can succeed in negotiating, provided that he observes the
principles of good faith and fair dealing enshrined in the sharia and refrains
from violating the provisions of any applicable regulations and decrees.
27
From
a practical standpoint, specificity and thoroughness are particularly essential
to a workable contract under Saudi law, although it would probably be fair
to say that highly detailed contracts have, historically, often been viewed as
unnecessary by Saudi businessmen.
Saudi law does not generally recognise the prescription of rights by the
passage of time. This is because the sharia (according to some interpretations)
considers it unjust to deprive a claimant of his rights. Various statutes, such as
the Labour and Workmens Regulations, the Negotiable Instruments
Regulations and the Rules of Civil Procedure before the Board of Grievances
(1989), however, contain limitation periods for the bringing of actions.
23 Ibid.
24 Ibid.
25 See Section 2.3 below.
26 Al-Samaan, p. 57.
27 Dennis Campbell, Legal Aspects of Doing Business in Saudi Arabia, Volume V (Kluwer Law
International, 1986), p. 160.
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2 LITIGATION BEFORE THE SAUDI COURTS
2.1 Introduction
As a general rule, disputes arising out of an investment agreement entered
into by a foreign investor and a private Saudi entity would be subject to
adjudication by a competent Saudi judicial authority, unless otherwise provided
in such agreement or in the articles of association of the Saudi joint venture
or limited liability company. However, investment agreements between the
Saudi government (or any its agencies) and foreign investors are subject to
Saudi law and any dispute arising thereunder would be heard by the Saudi
courts. Accordingly, a foreign investor seeking to bid for a government tender
should be aware that the ensuing contract would be governed by Saudi law
and subject to adjudication by a competent Saudi judicial authority, in the
event of a dispute between the parties.
2.2 Sharia courts
Sharia courts have general jurisdiction over all matters and will not decline
jurisdiction unless other judicial bodies have been granted specific jurisdiction.
Article 26 of the Judiciary Law of 1975 stipulates:
The courts shall have jurisdiction to decide all disputes and offences except those
which are excluded pursuant to a law . . . Specialised courts may be established by
Royal Decree made upon a motion of the Supreme Judiciary Council.
28
Sharia courts, which are divided into Summary Courts, General Courts and
the Court of Appeal, are administered by the Ministry of Justice in accordance
with civil and criminal procedural rules, as amended and promulgated in April
and October 2001, respectively. There is a presumption that the sharia courts
have jurisdiction over all matters and it is unlikely that they will decline
jurisdiction to hear a dispute unless another judicial authority has been granted
exclusive jurisdiction. In practice, we have noted conflicting approaches by
certain sharia judges.
Labour disputes, commercial disputes and all disputes involving the Saudi
government or any of its agencies are excluded from the sharia courts.
2.3 The Board of Grievances (diwan al-mazalim)
Commercial disputes in Saudi Arabia have always, at least potentially, had a
separate forum from that appropriate to other disputes. The Commercial
Court Regulations (Royal Decree M/32) of 1931 (much of which remains in
effect) make provision for procedural rules, the effect of judgments and
enforcement in matters concerning the Commercial Court. The Commercial
28 Examples of such specialised courts include the Commercial Papers Committee and the
Committee for the Resolution of Banking Disputes.
72
Court was superseded in 1967 by the Committee for the Settlement of
Commercial Disputes, which was in turn superseded in 1988 by the expansion
of the jurisdiction of the Board of Grievances.
The Board of Grievances deals with a broad range of matters of a commercial
nature (other than those involving banks, negotiable instruments or employee
rights) involving government or any of its agencies, foreign investors and private
Saudi entities. The Board of Grievances has two functions: a judicial function
in ensuring equitable treatment of those persons and companies which deal
with government, and a prosecutorial function relative to the acts of
government officials and civil servants. Its jurisdiction has been expanded to
include:
compensation claims filed by interested parties against the Saudi
government or its agencies by reason of an administrative agencys actions;
disciplinary cases brought by the supervision and investigation authority;
criminal cases arising under the anti-corruption and anti-forgery laws;
commercial disputes that were adjudicated by the commercial disputes
committees prior to their abolishment in 1987; and
enforcement and execution of foreign judgments and arbitral awards, as
discussed in more detail in Section 4 below.
29
The Rules of Civil Procedure before the Board of Grievances, promulgated
in July 1989, codified the Board of Grievances procedures and extended the
limitation period for claims against governmental agencies from three to five
years. There is no limitation period in relation to claims not involving
governmental agencies.
The Board of Grievances consists of administrative circuits, a commercial
division and a penal division, all of whose judges must be sharia-trained. There
are scrutinising committees that act as appeal courts; each committee is made
up of three senior judges. Unlike the sharia courts, legal consultants, as well
as other experts, professionals and academics, assist the judges. All decisions
are made by a majority vote and then reviewed by a scrutinising committee,
which can affirm, reverse or remand the decision. Any appeals against the
final decision must be made to the King.
One characteristic of the Board of Grievances is that, because its judges can
consult both legal and technical experts, they are able to consider cases that
are far more complex than those in sharia courts. In the past, the Board of
Grievances published its decisions from time to time. However, this practice
has now been discontinued.
Although the Board of Grievances is generally considered to be a fair and
independent forum for hearing disputes and has the advantage of being better
equipped to hear more complex cases, one of the major disadvantages is the
length of time it takes to reach a final judgment. The length of time between
hearings is very long: frequent adjournments and the large volume of cases
brought to the Board of Grievances mean that it can take a number of years
before a final decision is reached in relation to a dispute.
29 Article 8(g) of the Rules of Civil Procedure before the Board of Grievances of 1983.
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2.4 Quasi-judicial committees
Besides the sharia courts and the Board of Grievances, there are several quasi-
judicial committees with limited jurisdiction. These committees follow judicial
procedures similar to those of other courts in Saudi Arabia and render binding
awards.
30
The most important of these committees, which foreign investors
are likely to encounter, include the Commercial Papers Committee and the
Committee for the Resolution of Banking Disputes.
Commercial Papers Committee
The intention of the former Committee is to provide an expeditious forum
where matters relating to debts evidenced by commercial papers (for
example, cheques and promissory notes) may be heard. In practice, the
caseload faced by the Commercial Papers Committee has been heavy and the
hearings can be subject to delays. Delaying tactics used by defendants, such as
requesting further information, changing lawyers and failing to appear before
the panel, slow the process further. In addition, there are limitation periods
that must be observed, but should these have expired, it is always possible to
resort to the sharia courts or the Board of Grievances, although the negotiable
instrument will be available only as evidence of a debt, rather than as a
negotiable instrument in its own right.
Committee for the Settlement of Banking Disputes
Disputes relating to banking matters, other than matters relating to negotiable
instruments, are heard by a special committee under the auspices of the Saudi
Arabian Monetary Agency or SAMA, which is the central bank of Saudi Arabia.
The SAMA Committee (as it is known) performs a valuable role by providing
a more specialised forum that is acquainted with the business of banking and
may generally be relied upon to resolve disputes by reference to the contractual
arrangements involved. More particularly, it does not appear to apply sharia
principles as strictly as, for example, the Board of Grievances. For example, in
relation to defaulted loan agreements, the SAMA Committee has been known
to award lenders compensation calculated by reference to some of the interest
(interest is unenforceable as a matter of sharia law) that would have been
payable under the applicable loan agreement.
Decisions of the SAMA Committee cannot be appealed and are enforceable
(there used to be some doubt as to whether the SAMA Committees decisions
were directly enforceable).
30 Dr Yahya Al-Samaan, Dispute Resolution in Saudi Arabia (Kluwer Law International, 2002);
Yearbook of Islamic and Middle Eastern Law (Kluwer Law International, 2002), Vol. 7, p. 75.
74
2.5 Points to bear in mind when commencing litigation in Saudi Arabia
Foreign investors should bear the following in mind before commencing legal
proceedings against a Saudi entity or when defending a claim before the Saudi
courts.
No binding precedent
The doctrine of binding precedent is only applicable in a very limited range
of cases. However, previous favourable court judgments may be of persuasive
value. Decisions in any judicial forum must conform, at least in theory, to the
sharia. Moreover, case law (that is, judicial judgments) is not systematically
reported. Therefore, an understanding of Saudi law and practice, particularly
as regards interpretation of the implementing regulations and also
enforcement practices, is based for the most part on anecdotes current in the
legal profession and experience in the field. Although the Hanbali School of
Islamic law is applied in Saudi Arabia, one should not expect direct guidance
on the issues under consideration from that source or from classical Islamic
law generally, except in the most abstract sense.
No retroactivity
It should be noted that the principle of non-retroactivity is an established
principle of law in Saudi Arabia. In other words, laws and regulations come
into effect as of the date of their promulgation in the Official Gazette, without
retroactive effect.
No juries
Jury trials in either civil or criminal matters are unknown. There is no strict
rule against hearsay evidence and cross-examination is not normally permitted.
Proceedings are more in the style of a committee than that of conventional
courts in common or civil jurisdictions. Saudi courts observe few formalities
in case presentation: the judge considers the evidence, renders a decision,
dictates it to the court clerk, and the parties collect a copy.
Burden of proof
In civil matters, the burden of proof generally rests with the claimant. A
claimant who lacks proof may require the defendant to take an oath. The
procedures are, basically, inquisitorial and judges may make their own
investigation of the facts where they consider that these have not been
sufficiently well presented and may raise issues not raised by the parties.
Legal representation
Only a qualified person holding a licence issued by the Ministry of Justice to
practise law in Saudi Arabia may represent any person or company before all
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75
judicial authorities (i.e. sharia courts and the Board of Grievances) and quasi-
judicial committees. Non-Saudi lawyers are not permitted to represent a party
alone, but may join a licensed Saudi lawyer as an adviser. In theory, any person
involved in legal proceedings may represent himself. Proceedings before Saudi
courts are in Arabic and documents submitted in support of a claim or case
must also be in the Arabic language. If a person does not speak Arabic, a
translator will be required.
If one has to sue on a contract in a Saudi court, only Arabic documents or
Arabic translations of non-Arabic language documents are admissible. Where
contracts are complicated, obtaining accurate translations can be very difficult,
not only because translators can be of variable quality, but also because it is
sometimes difficult or impossible to find a proper Arabic equivalent of certain
foreign legal concepts. For example, if one were to refer to an option in an
English document, all of the legal incidents of an option should be carefully
spelled out, because the nearest translation of option in Arabic has entirely
different legal effects.
3 INVESTOR PROTECTION UNDER SAUDI LAW
3.1 The Foreign Capital Investment Law
As previously mentioned, in recent years expanded commercial contacts
between Saudi Arabia and foreign investors have led to the promulgation of a
number of laws and implementing regulations, many of which contain
provisions that reflect generally accepted commercial and civil law influences.
One such law is the Foreign Capital Investment Law, which came into force
in April 2000, and which provides a regulatory framework for foreign investors
seeking to invest foreign capital in one or more licensed activities in Saudi
Arabia. In this section we propose to assess some of the advantages and
shortcomings of the new law as far as foreign investors are concerned.
3.2 What is a foreign investor and foreign capital?
Pursuant to Article 1 of the Foreign Capital Investment Law, the term foreign
investor means:
A natural person of non-Saudi nationality or otherwise the body corporate, in which
all partners are not exclusively Saudi nationals.
The term foreign capital as defined in the Foreign Capital Investment
includes:
The following property and rights, as may be owned by the foreign investor namely:
Banknotes, securities and negotiable instruments.
Profits realised from foreign investment if used to increase capital, expand existing
projects or establish new projects.
Machinery, equipment, instruments, spare parts, means of transportation and
production requirements related to such investment.
76
Intangible rights such as licences, intellectual property rights, technical know-how,
administrative skills and production techniques.
3.3 What is a licensed activity?
Article 3 of the Foreign Capital Investment Law stipulates:
The Supreme Economic Council Licensed shall issue a list specifying the types of
activities from which foreign investors are excluded.
Thus, in accordance with Resolution No.11/21 dated 17/11/1421H
(equivalent to 11/02/2001 A.D.), the Supreme Economic Council published
a list of 22 investment activities from which foreigners are excluded. The list
includes exploration, drilling and production of oil and gas, road, air and
pipeline transport, as well as insurance and telecommunications services.
31
However, in keeping with the Saudi governments recent policy of opening
up certain sectors of the economy to foreign investment to meet increasing
local demand for improved services in such sectors, it has been widely reported
in the Saudi press in 2002 that the insurance, transport and certain parts of
the telecommunications sectors will be removed from the list of investment
activities hitherto reserved to Saudi companies, in order to encourage foreign
investment in these sectors.
32
3.4 Guarantees afforded to foreign investors under the Foreign Capital
Investment Law
Of primary concern to any investor seeking to do business in a foreign country
is protection of its investment. Other than foreseeable commercial risks facing
a foreign venture, foreign investors also fear that a host country may arbitrarily
exercise its sovereign powers, for example, through expropriation or
nationalisation of the venture or restrictions on the transfer or repatriation of
investment capital or profits.
Saudi Arabia has sought to allay such fears by providing various guarantees
to foreign investors in the form of equitable treatment under Saudi law. Article
6 of the Foreign Capital Investment Law stipulates:
A project that has been licensed pursuant to these regulations shall enjoy all rights,
incentives and guarantees available in respect of a national project in accordance
with Saudi law.
Such guarantees include the right to:
(i) transfer the profits or proceeds of the sale of the foreign-owned entity
or dispose of the same by any other lawful means (Article 7);
(ii) own real estate as may be necessary for the conduct of the licensed
activity or accommodation of its employees (Article 8);
31 A complete list of excluded activities is set out at Appendix I.
32 At the time of writing, this so-called negative list has yet to be amended to reflect this new
political will.
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77
(iii)sponsor non-Saudi employees (Article 9); and most significantly
(iv)protection of the foreign investment from arbitrary expropriation (other
than pursuant to a judicial decision or in the public interest and subject
to fair compensation) pursuant to Article 10 of the Foreign Capital
Investment Law.
3.5 Dispute resolution under the Foreign Capital Investment Law
In addition to protection of their investments, foreign investors seeking to do
business in Saudi Arabia want to be assured of the existence of adequate and
impartial dispute resolution mechanisms to which they can have recourse in
the event that their rights have been infringed by the Saudi government, its
agencies or a private Saudi partner.
The Foreign Capital Investment Law contemplates two possible scenarios,
namely:
(i) a dispute between the foreign investor and the Saudi government (or
any of its agencies); or
(ii) a dispute between the foreign investor and its Saudi partner. Article 13
of the Foreign Capital Investment Law stipulates:
Without prejudice to the agreements to which Saudi Arabia is a party:
(1) Disputes that may arise between the Government and a foreign investor in relation
to foreign investments that are licensed pursuant to this law shall, as far as possible,
be settled amicably, failing which the dispute shall be resolved in accordance
with the relevant laws.
(2) Disputes that may arise between a foreign investor and its Saudi partners in
relation to foreign investments that are licensed pursuant to this law shall, as far
as possible, be settled amicably, failing which the dispute shall be resolved in
accordance with the relevant laws.
As previously mentioned, the Board of Grievances is the competent judicial
authority in cases involving investment disputes between the Saudi government
(or any of its agencies) and foreign investors, whereas disputes between foreign
investors and a private Saudi entitiy may be subject to a competent Saudi
judicial authority, unless otherwise provided by the parties in the investment
contract.
Despite the well-established authority of the Board of Grievances to inter-
vene in disputes involving the Saudi government, arguably Article 13 may
not necessarily limit such disputes to the jurisdiction of Saudi courts alone.
Under Article 13, the Arabic term ittifaqiyat is rendered in
English as agreements. However, the Arabic meaning is very broad and
includes concepts such as treaties or conventions, as well as contracts or
agreements. Moreover, as previously stated, under general sharia principles
no distinction is drawn between treaties, state contracts and private contracts.
In addition, in sub-paragraphs (1) and (2), the Arabic term nzam ,
which means law, is a specific reference to the Foreign Capital Investment
Law, whereas the term anzima , which is the plural of nzam,
appears to be a more general reference to the laws and regulations of Saudi
Arabia.
78
Moreover, due to the fact that the Saudi government could in theory
unilaterally amend or abrogate its domestic legislation, foreign investors may
consider the guarantees and assurances embodied in the Foreign Capital
Investment Law to be of limited value.
33
Accordingly, foreign investors may
seek redress directly against the Saudi government or Saudi entities under
various bilateral and multilateral treaties to which Saudi Arabia is a party, as
discussed below in Section 4.
4 ALTERNATIVE MEANS OF RECOURSE AVAILABLE TO
FOREIGN INVESTORS
4.1 Introduction
Despite the relative protection afforded to foreign investors under the sharia
and the guarantees extended to foreign investments under the Foreign Capital
Investment Law, foreign investors may nevertheless feel uncomfortable about
commencing litigation before the Saudi courts for several reasons.
Typically, litigation in Saudi Arabia (as elsewhere) can be protracted and
expensive and the outcome uncertain, pending a final judgment. In addition,
many foreign investors may perceive that Saudi courts are not sufficiently
experienced in or knowledgeable about potentially complex legal issues, which
may arise out of specialised contracts such as design-build, turnkey or EPC
contracts, or sophisticated infrastructure finance schemes involving multi-
jurisdictional syndicated loans, bond issues or the like. Moreover, as previously
mentioned, Saudi courts have declined to award compensation to parties
claiming loss of future profits or to approve the payment of interest on overdue
amounts (regardless of the reason for the delay), on the grounds that both
are unenforceable under the sharia. Furthermore, foreign investors are
understandably keen to avoid any adverse publicity generated by media interest
in their dispute as such publicity could have a detrimental effect on the parent
company or its share value, if such company is listed on a stock exchange.
Lastly, yet perhaps most importantly, foreign investors generally have limited
confidence in the impartiality of the national courts of certain host countries.
For these and other reasons, many foreign investors readily seek alternative
means of dispute resolution. To that end, one of the most common approaches
adopted by foreign investors is to include an arbitration clause in the investment
agreement. In this section we propose to examine the role of arbitration as an
alternative means of recourse available to foreign investors in Saudi Arabia,
including domestic and foreign arbitration, as well as enforcement procedures
under Saudi law, including under various bilateral and multilateral treaties to
which Saudi Arabia is a signatory.
33 Al-Samaan, The legal protection of foreign investment in the Kingdom of Saudi Arabia, p 51.
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79
4.2 Arbitration under the sharia
Generally speaking, Saudi law regards both mediation and arbitration as a
valid means of resolving commercial disputes within the private sector and,
subject to certain limitations, of disputes between the Saudi government and
private parties.
34
According to the Hanbali School, which is predominant in Saudi Arabia,
an arbitral award is deemed to have the same binding effect as a court
judgment. Nevertheless, there is no legal requirement for the courts to
renounce their jurisdiction to hear an arbitrated case on the merits.
Concomitantly, arbitral awards will not be automatically enforced. Hanbali
jurists insist that an arbitrator be qualified in the sharia.
35
In addition, parties
to arbitration may revoke an arbitrator at any time before the arbitrator renders
the award, unless the arbitration agreement contains a provision expressly
prohibiting revocation or if a judge has appointed the arbitrator. In the latter
case, the arbitrator is deemed to be the representative of the judge and his
mandate cannot be revoked during the arbitral proceedings.
4.3 Domestic arbitration and enforcement of awards under the Arbitration
Law of 1983
Prior to the enactment of the new Saudi Arbitration Law in 1983 (the
Arbitration Law, the Saudi arbitration system was based on various texts,
including certain provisions of the Commercial Courts Regulations, the
Chamber of Commerce Regulations, the Labour and Workmens Regulations
and the Commercial Agencies Regulations, which authorised recourse to
arbitration, subject to certain restrictions. The Arbitration Law
36
and the
implementing regulations of 1985
37
(the Arbitration Law) superseded the
piecemeal provisions contained in such regulations and constituted an attempt
to harmonise such texts and provisions in a single body of legislation.
The Arbitration Law distinguishes between arbitrations arising out of (i) an
agreement by the parties to arbitrate a specific existing dispute and (ii) an
arbitration clause that may be invoked by the parties in the event of a dispute
resulting from the performance of a specific contract.
Article 1 stipulates:
The parties may agree to arbitrate a specific existing dispute; a prior agreement to
arbitrate may also be made in respect of any dispute resulting from the performance
of a specific contract.
34 A. Lerrick and Q.J. Mian, Saudi Business and Labor Law: Its Interpretation and Application (London,
Graham & Trotman Ltd., out of print, 1982), p. 176.
35 Al-Samaan, The legal protection of foreign investment in the Kingdom of Saudi Arabia, p. 250.
36 The Saudi Arbitration Law came into effect by Royal Decree M/46 on 12.07.1403 (equivalent
to 25 April 1983).
37 The implementing regulations, which came into effect by Decree No. 7120211M dated
08.09.1405 (27 May 1985), were subsequently promulgated in the Official Gazette on
10/10/1405 (28 June 1985).
80
Article 1 is to be read in conjunction with Articles 5 and 7.
In the former case, the parties to a dispute are obliged to file their agreement
to arbitrate with the authority originally competent to hear such dispute.
38
In
addition, such agreement has to be signed by the parties or their authorised
attorneys, as well as by the arbitrators, and it must state the details of the
dispute, the names of the arbitrators and their agreement to hear such
dispute.
39
In the latter case, if the parties have agreed to arbitrate before the
occurrence of the dispute, or if the agreement to arbitrate relating to a specific
existing dispute has been approved by the relevant authority, then the subject
matter of the dispute shall be heard only in accordance with the provision of
the Arbitration Law.
40
These new provisions appear to address the vexed question of the validity
of arbitration clauses in contracts before a dispute arose, in that sharia courts
generally refused to implement such clauses and only parties to an existing
dispute were authorised to submit such dispute to arbitration provided that
they entered into a separate arbitration agreement, which was subject to formal
rules and had to be executed before a notary public. According to certain
commentators, the new law acknowledges that arbitration clauses are binding
on the parties and recognises arbitration stemming from such clauses without
the necessity to enter into a new arbitration agreement (which would then
have to be confirmed by the authority originally having jurisdiction).
41
In other
words, arguably there is now official acknowledgement of the validity and
binding nature of arbitral clauses in contracts.
It should be noted that the Arbitration Law precludes the Saudi government
or its agencies from resorting to arbitration for settlement of their disputes
with third parties, except by leave of the President of the Council of Ministers,
although such prohibition is subject to amendment by resolution of the
Council of Ministers.
42
Article 3 reflects a decision taken by the Saudi Council of Ministers over
two decades prior to the enactment of the Arbitration Law and adopted by
royal decree,
43
following an unfavourable arbitral award made against the Saudi
government in the Aramco case.
44
In essence, Decree No. 58 prohibited recourse
to arbitration in the event of a dispute between the Saudi government or any
ministry, administration, directorate or agency thereof and a private individual
or legal entity. No distinction was made between national or international
arbitration. The Decree contained two exceptions, namely (i) if the contract
related to a concession, which was deemed to be of vital interest to the State
(the State alone determining what constituted such vital interest), or (ii) if a
38 For domestic arbitration, depending on the object of the dispute, such authority includes
(i) the sharia courts, (ii) the Board of Grievances, and (iii) the Committee for the Settlement
of Labour Disputes.
39 Article 5 of the Arbitration Law.
41 Abdul Hamid El-Ahdab, Arbitration with the Arab Countries, 2nd Edition (Kluwer Law
International, 1999), Part III, at p. 569.
43 Decree No. 58 of 25 June 1963.
44 Saudi Arabia v. Arabian American Oil Company (Aramco), 23 August 1958, reported in 27 I.L.R.
(1963).
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81
dispute arising under a government contract was technical in nature. Although
the significance of Decree No. 58 has diminished over time, it should
nevertheless be noted that the Arbitration Law makes no distinction between
national or international arbitration.
Article 10 of the Arbitration Law stipulates:
If the parties have not appointed the arbitrators, or if either of the parties fails to
appoint its own arbitrator(s), or if one or more of the arbitrators is unable or refuses
to assume his mission or withdraws, or if he is dismissed, and there is no special
agreement between the parties, the Authority originally competent to hear the dispute
shall appoint the required arbitrators upon request of the party who is interested in
expediting the arbitration. . .
However, it should be stressed that under Article 18 of the Arbitration Law,
either party may appeal the arbitration award within 15 days of receiving
notification of the award being rendered. Thus under the Arbitration Law,
the Saudi courts are deemed to be the competent authority having jurisdiction
over the dispute and control over all stages of the proceedings, including in
particular, the power to hear an appeal filed by either party against an award.
In other words, under Saudi law a domestic arbitral award is not deemed to
be final and binding until the Saudi courts have settled any appeal against the
award, thus rendering such award enforceable.
4.4 Foreign arbitration and enforcement under the New York Arbitration
Convention
Increasingly, foreign investors are seeking to include foreign arbitration clauses
in agreements entered into with Saudi counterparties, in particular, in relation
to major infrastructure or construction projects or agreements for the supply,
delivery, installation and commissioning of expensive plant or equipment. In
so doing, the intention is to waive Saudi judicial jurisdiction in favour of private
justice, on the assumption that should a dispute arise between the parties and
result in an arbitral award in favour of a foreign investor, such award would be
final and enforceable against the assets of the Saudi counterparty in Saudi
Arabia, as the case may be.
Having said that, foreign investors wishing to include foreign arbitration
clauses in their agreements should bear in mind that a key problem of
arbitration is the enforcement of an arbitral award, a problem which often
becomes more complicated in the case of foreign arbitral awards. The
enforcement of a foreign arbitral award may be hindered by the claim of
sovereign immunity where the respondent is a state or one of its constituent
subdivisions or agencies.
45
In order to address this issue, the Saudi government
has entered into a number of bilateral and multilateral conventions for
the purpose of regulating the enforcement of foreign arbitral awards. One
such multilateral convention is the Convention on the Recognition and
45 Al-Samaan, Dispute Resolution in Saudi Arabia; Yearbook of Islamic and Middle Eastern Law, Vol. 7,
p. 81.
82
Enforcement of Foreign Arbitral Awards
46
to which Saudi Arabia acceded in
1994.
47
Generally referred to as the New York Arbitration Convention , this
multilateral treaty (which has been adhered to by over 120 jurisdictions),
provides for recognition of both the arbitration clause and the resulting
award.
48
In this section, we propose to analyse the degree of protection afforded
by the New York Arbitration Convention to foreign investors in Saudi Arabia.
Generally speaking, the legal basis for the enforcement of foreign arbitral
awards is expected to be found in the domestic legislation of the state in
which enforcement is sought. However, in Saudi Arabia, there is no specific
legislation on the enforcement of foreign arbitral awards. Indeed, as previously
stated in paragraph 4.3, the Arbitration Law makes no distinction between
national or international arbitration. However, the Board of Grievances is
empowered to consider applications for the enforcement of foreign judgments
(and arguably foreign arbitral awards) pursuant to the Rules of Civil Procedure
before the Board of Grievances of 1989, which specify, inter alia, the manner
in which applications for the enforcement of foreign judgments should be
made, and the procedures to be followed by the Board of Grievances in this
regard.
49
It is important to note that while there is no restriction under the Arbitration
Law against an arbitration being held inside or outside Saudi Arabia, an arbitral
award that is rendered outside Saudi Arabia is deemed to be foreign only if it
is rendered according to substantive and procedural foreign law.
From a practical standpoint, the procedure for enforcement of the foreign
arbitral award is initiated by a petition that is submitted to the Board of
Grievances by the relevant party (usually the party in whose favour the award
has been rendered). After ensuring that the award does not contravene the
mandatory principles of sharia law,
50
the Board of Grievances may invite the
parties to present oral submissions. If the Board of Grievances is satisfied that
the award should be recognised, it will grant an enforcement order.
If the arbitral award has been rendered in a state that is not a party to the
New York Arbitration Convention, the Board of Grievances may nevertheless
agree to enforce such an award on the basis of reciprocity. In accordance with
Article 6 of the Rules of Civil Procedure before the Board of Grievances, the
Board of Grievances may issue an order for enforcement of a foreign judgment,
if the foreign state in which such judgment is rendered affords reciprocal
46 330 U.N.T.S. 38, 21 U.S.T. 2517, T.I.A.S. No. 6997 (1958).
47 Saudi Arabia did so by Royal Decree No. 7-11 dated 29 December 1993, which was promulgated
in the Umm Al-Qura (Official Gazette) on 21 January 1994.
48 W. L. Craig, W. W. Park and J. Paulsson, International Chamber of Commerce Arbitration, 3rd Edition
(New York, ICC Publishing Inc., 2000), p. 679.
49 Al-Samaan, Dispute Resolution in Saudi Arabia; Yearbook of Islamic and Middle Eastern Law, Vol. 7,
p. 81.
50 An example of an award that would contravene such principles would include cases where the
foreign arbitral award contained an order requiring the payment of interest, which is strictly
forbidden under sharia law. The Board of Grievances would also reject an application for the
enforcement of a foreign arbitral award on public policy grounds, for example, where the
dispute arose under an agreement for the provision of forbidden goods or services, or
contractual dealings with the State of Israel, which is the subject of a boycott by the Saudi
government.
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83
treatment to judgments rendered by the Saudi courts, provided that nothing
in the foreign judgment contravenes the mandatory principles of sharia law.
Despite the above, we are not aware of the existence of any previous instances
where a party has sought to petition the Board of Grievances to have a foreign
arbitral award enforced in Saudi Arabia under the New York Arbitration
Convention.
51
4.5 Bilateral investment treaties
In the previous section, we touched upon how the Saudi government sought
to prevent foreign investors from seeking recourse to arbitration in the event
of a dispute arising under a contract between the Saudi government (and any
of its agencies) pursuant to Decree No. 58. Since the promulgation of that
Decree in 1963, Saudi Arabia has come under increasing pressure from foreign
governments and, in particular, the United States to modify its stance. This
led to the signing by the Saudi government of a bilateral investment treaty
with the United States, as well as bilateral treaties with several other states, as
discussed below, as a means of allaying the fears of foreign investors about
political risk and encouraging investment in Saudi Arabia.
OPIC Convention
On 26 April 1975, Saudi Arabia and the United States (under the aegis of the
Overseas Private Investment Corporation
52
) entered into a convention (the
OPIC Convention), which contained a clause authorising recourse to
arbitration in the event of a dispute between the Saudi government (or any of
its agencies) and an American investor guaranteed by OPIC. The OPIC
Convention stipulates that the parties to a dispute arising in connection with
an investment guaranteed by virtue of the OPIC Convention must first attempt
to resolve such dispute by negotiation,
53
failing which either government may
refer the matter to arbitration.
54
The arbitral tribunal is to consist of three
arbitrators, one to be appointed by each contracting state and the chairman,
who is to be neither Saudi nor American, by mutual agreement of the parties.
55
If one of the parties should fail to appoint an arbitrator, the other party may
request that the President of the International Court of Justice do so in lieu of
the defaulting party.
56
However, the OPIC Convention is silent as to the steps
51 However, at the time of writing, the author understands that a petition may soon be filed
before the Board of Grievances by a foreign party seeking the enforcement of such an award,
which may result in the first test case in Saudi Arabia. Depending on whether or not such
petition is filed and subject to confidentiality requirements, the author proposes to discuss
the outcome of this case in a future article.
52 OPIC is an state-owned agency which guarantees U.S. foreign investment against political
risks.
53 OPIC Convention, Article 3(a).
54 Ibid, Article 39.
55 Ibid, Article 3(c)(i).
56 Ibid, Article 3(c)(ii).
84
to be taken in the event that the parties fail mutually to agree a chairman.
The award is rendered by majority vote and is final and binding. It should be
noted that under the OPIC Convention, the arbitral tribunal is obliged to
apply the principles and rules of international law.
57
In addition, the arbitral
tribunal is authorised to determine its own procedural rules, which it deems
appropriate to the subject matter of the dispute.
58
Other bilateral investment treaties
In addition, Saudi Arabia is a party to five other bilateral investment treaties,
namely with China, Egypt, Germany, Italy and the Philippines.
59
Recent reports
in the Saudi economic press suggest that the Saudi government is currently
negotiating various bilateral treaties with an undisclosed number of other
states.
4.6 Other multilateral conventions
In addition to acceding to the New York Arbitration Convention, Saudi Arabia
is also a signatory to other multilateral conventions which provide foreign
investors with a means of dispute resolution through foreign arbitration, and
the enforcement of resulting judgments or awards. In this section, we propose
to look briefly at the Convention on the Settlement of Investment Disputes
and the Convention on Judicial Cooperation between States of the Arab
League.
Convention on the Settlement of Investment Disputes
In 1980, Saudi Arabia acceded to the Convention on the Settlement of
Investment Disputes between States and Nationals of Other States (the
Convention
60
) providing for a means of resolution of investment disputes
between member states and nationals of other states who are parties to such
Convention, under the aegis of the International Centre for the Settlement
of Investment Disputes (ICSID).
In accordance with Article 1 of the Convention, ICSID is intended to
encourage private foreign investment in developing countries by providing
facilities for conciliation and arbitration of investment disputes between a
contracting state and a national of another contracting state.
Under Article 25 of the Convention, the jurisdiction of ICSID is limited to
legal disputes arising directly from an investment between a contracting state
(or one of its constituent subdivisions or agencies designed by it) and a national
of another contracting state.
57 OPIC Convention, Article 3(c)(ii).
58 Ibid, Article 3(c)(iv).
59 See Appendix II for more details.
60 The ICSID Convention entered into force on 14 October 1966.
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85
The preamble to the Convention emphasises the use of ICSIDs arbitration
facilities. It states that a contracting state, by the mere fact of its ratification of
the Convention and without its consent, is under no obligation to submit any
particular dispute to conciliation or arbitration. This rule is also confirmed by
Article 25(1) which provides that the disputing parties must consent in writing
to submit to ICSID.
The Convention does not specify the form of instrument in which the
consent may be expressed. Consent can be expressed in an exchange of letters
or in the investment contract. Alternatively, a contracting state may give its
consent in advance to submit investment disputes to ICSID arbitration by
providing for that in the domestic investment law or in an investment treaty.
61
To date, the Arbitration Law contains no provisions in this regard and Saudi
Arabia has not concluded an investment agreement referring investment
disputes to ICSID arbitration. At the time of writing, no dispute arising out of
investment in Saudi Arabia has been submitted to ICSID.
62
According to Article 25(4) of the Convention, a contracting state may notify
ICSID of the categories of disputes that it would not submit to ICSID
arbitration. At the time of ratification, the Saudi government reserved the
right of not submitting all questions pertaining to oil and to acts of sovereignty
to ICSID, whether by way of conciliation or arbitration.
63
With respect to the
latter reservation, there is no official interpretation of the term acts of
sovereignty under Saudi law. However, as a general proposition, some scholars
have interpreted this as a reference to those discretionary executive actions,
which are not subject to judicial review, corresponding to the so-called act of
State doctrine.
64
This doctrine bars the adjudication of claims or enforcement
of awards resulting from an act done by a sovereign power, within its territory,
of a governmental rather than a commercial nature, a quintessential act of
State being the nationalisation of foreign-owned property by legislative
decree.
65
There are a number of advantages to using ICSID arbitration. First, it is
regarded as a flexible and impartial mechanism for the resolution of investment
disputes because it seeks to maintain a balance between the parties interests.
Secondly, it meets the desire of most foreign investors not to have their disputes
publicised because, according to Article 48(5) of the Convention, an arbitral
award rendered under the auspices of ICSID cannot be published unless the
parties to the dispute agree thereto. Thirdly, ICSID arbitration does not raise
the problem of sovereign immunity of a state party to the dispute preventing
it from being subjected to foreign jurisdiction. In other words, under ICSID
arbitration, the defence of sovereign immunity of a disputing state from
ICSIDs jurisdiction cannot be invoked as long as the state has given its prior
61 Al-Samaan, The Legal Protection of Foreign Investment in the Kingdom of Saudi Arabia, pp. 301-302.
62 Ibid, p. 302.
63 Ratified on 16 April 1980. The Saudi ratification entered into force in Saudi Arabia on 7 June
1980.
64 Lerrick and Mian, op cit, p. 181.
65 Craig, Park and Paulsson, International Chamber of Commerce Arbitration, p. 671.
86
consent to submit to ICSID arbitration. Thus, ICSID arbitration offers foreign
investors a guarantee against the possible refusal of the host state to submit a
dispute to arbitration. Lastly, so far as enforcement of arbitral awards are
concerned, ICSID arbitration is deemed by many to be the most effective
dispute settlement mechanism. The Convention provides in Article 54(1) that
each contracting state is obliged to recognise an award rendered pursuant to
this Convention as binding and enforce it within its territories as if it were a
final judgment of its court.
66
Convention on Judicial Cooperation between States of the Arab League
On 6 April 1983, Saudi Arabia signed the Convention on Judicial Cooperation
between States of the Arab League (the 1983 Convention)in Riyadh. Articles
25 and 37 of the 1983 Convention deal with the recognition and enforcement
of foreign judgments and arbitral awards, without reviewing the subject matter
of the underlying dispute, provided that such judgments or arbitral awards do
not violate public order, morality or the constitution of the state in which
enforcement is being sought, or the overriding principles of sharia law.
Thus, the enforcement of an arbitral award, which has been rendered in a
member state and which awards the claimant interest, can be rejected in Saudi
Arabia on the ground that it violates the prohibition on the payment of interest
under sharia law.
The 1983 Convention distinguishes between public order and morality on
the one hand and sharia law on the other. It seems that the distinction is due
to the fact that the mandatory principles applicable in certain Arab League
states (such as Saudi Arabia) are not regarded as matters of public order in
other states (such as Egypt).
APPENDIX I
List of investment activities excluded to foreign investors.
Industrial sector
1. Exploration, drilling and production of oil and gas.
67
2. Manufacturing of military equipment and clothing.
3. Manufacturing of explosives for civil use.
Services sector
1. Catering for military personnel.
2. Investigation and security.
3. All insurance and insurance-related services.*
66 Al-Samaan, The Legal Protection of Foreign Investment in the Kingdom of Saudi Arabia, pp. 304-305.
67 Excluding mining services internationally classified under Nos. 883 and 5115.
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87
4. Real estate investment in Makkah Al-Mokaramah and Al-Madinah
Al-Munawarah.
5. Travel agencies, tour operators and tourist guides services related to
Hajj and Omrah.
6. Placement and supply ser vices of personnel including labour
recruitment and commercial employment offices.
7. Real estate commission services.
8. Printing and publishing.*
9. Distribution services (wholesale trade, retailing
68
and commission
agents
69
).
10. Audio-visual services.
11. Educational services (primary education, secondary education and adult
education).*
12. Telecommunications services.*
13. Road and air transport.
14. Services incidental to electrical energy distribution.
15. Space transport.
16. Pipeline transport.
17. Services provided by midwives, nurses, physiotherapists and paramedical
personnel.
18. Services incidental to fishing.
19. Poison centres, blood banks and quarantine services.
* Sectors earmarked for investment by foreign investors.
APPENDIX II
Bilateral investment treaties entered into by Saudi Arabia as at 2003
Saudi Arabia
Counter Parties (5) Signature Entry into Force
China 29 February 1996 1 May 1997
Egypt 13 March 1990 15 September 1992
Germany 29 October 1996 9 January 1999
Italy 10 September 1996 22 May 1998
Philippines 17 October 1994 11 November 1996
68 Including medical retail trade (pharmacies) internationally classified under Nos. 631, 632,
6111, 6112 and 6121.
69 Excluding franchise services internationally classified under No. 8929, provided that foreign
ownership is not more than 49 per cent on the basis of one licence for each region.
88
The Role of International Law and
Human Rights in Peacemaking and
Crafting Durable Solutions for Refugees:
Comparative Comment
Lynn Welchman*
Introducing this Expert Seminar on The Role of International Law and Human
Rights in Peacemaking and Crafting Durable Solutions for Refugees,
1
al-Badil
Resource Centre set out the following assumption:
The Oslo process has been dominated by a primarily political approach, which
considers relevant international law and human rights provisions as impractical
and obstacles for a negotiated solution of the Palestinian refugee issue and the Israeli-
Palestinian conflict. The exclusion of international law, human rights standards and
relevant U.N. resolutions from the terms of reference for negotiations and the
substance of agreements has been identified as a major cause of the failure of the
Oslo process in general, and of efforts at tackling the Palestinian refugee issue in
particular.
This is a sober assessment that in my opinion correctly points up the risks that
the Oslo process took in failing to set commitment to existing obligations in
international law as the framework for the transition. This argument has been
made in particular in regard to international humanitarian law.
2
Nor does the
* Senior Lecturer and Director, Centre of Islamic and Middle Eastern Law, SOAS, University of
London. I am grateful to Fouzia Khan for research assistance on this paper; to Colm Campbell,
Catherine Jenkins, Mona Rishmawi and Wilder Tayler for suggestions on comparative material;
and to Lena al-Malak for comments.
1 Expert Seminar convened by al-Badil Resource Centre for Palestinian Residency and Refugee
Rights, hosted by the Department of Third World Studies, Faculty of Political and Social
Sciences, University of Ghent, 22-23 May 2003. This paper was written for the seminar and
presented to the first session.
2 See Welchman, The Middle East Peace Process and the Rule of Law: Irreconcilable Objectives?
in Eugene Cotran and Mai Yamani (eds), The Rule of Law in the Middle East and Islamic World
(London: I.B.Tauris 2000), pp. 51-65; Raja Shehadeh, From Occupation to Interim Accords: Israel
and the Palestinian Territories (The Hague: Kluwer Law International 1997), pp. 168, 131;
Christine Bell, Peace Agreements and Human Rights (Oxford: Oxford University Press 2000), see
Continued overleaf
89
latest initiative, on the face of it, appear to break this mould. The Quartets
Performance-based Road Map, formally published by the United States at
the end of April 2003,
3
contains no reference to international law or indeed
to any framework external to terms agreed bilaterally or proposed by particular
third parties hence, there is a passing reference to past agreements and
Israel is to freeze settlement activity in accordance with the Mitchell report
(not in accordance with its obligations under international law). The only
reference to the refugees comes in the plan for the third and final phase,
when the parties are to reach final and comprehensive permanent status
agreement that ends the Israeli-Palestinian conflict in 2005, through a
settlement negotiated between the parties based on UNSCR 242, 338, and
1397, that ends the occupation that began in 1967, and includes an agreed,
just, fair and realistic solution to the refugee issue . . . These three Security
Council resolutions do not explicitly deal with individual rights of the refugees.
4
One could understand the adjectives just and fair used in the road map to
describe the solution envisaged for the refugee issue as indicating the solution
generically described by human rights law as currently articulated (the right
to return and to housing and property restitution). On the other hand, the
word realistic hints at the attitude described in the above-cited assumption
of the seminar (to the effect that solutions envisaging the implementation of
these same international legal provisions could be regarded as unrealistic
or impractical). Nor can it be assumed that with the use of agreed, the
drafters of the road map intend to directly secure the agreement of the refugees
themselves, beyond the agreement of their hard-pushed political
representatives.
5
The three U.N. Security Council Resolutions cited in the road map broadly
present and reaffirm the land-for-peace formula now the basis of the two-
state solution to the Israeli-Palestinian conflict explicitly recognised in UNSCR
discussion at pp. 183-184 and 203; and Colm Campbell, A Problematic Peace: International
Humanitarian Law and the Israeli-Palestinian Peace Process, in Kirsten E. Schulze, Martin
Stokes and Colm Campbell (eds), Nationalism, Minorities and Diasporas: Identities and Rights in
the Middle East (London: I.B.Tauris 1996), pp. 39-54. For a political science critique of Oslo,
see Ian S. Lustick, The Oslo Agreement as an Obstacle to Peace, Journal of Palestine Studies
XXVII/I 1997 61-66; Lusticks focus is what he describes as a sophisticated strategy of
opposition to Oslo among right-wing Israeli opponents and their supporters in the United
States, which involves ignoring its political content and insisting that it be treated as a legal
document [. . .].
3 A Performance-Based Road Map to a Permanent Two-State Solution to the Israeli-Palestinian Conflict;
formally released by the United States on 30 April 2003; see Conal Urquhart, US releases
road map amid underlying tension, The Guardian, 1 May 2003. See also at pp. 430-434.
4 In UNSCR 242 (1967) the Security Council affirms the necessity [. . .] for achieving a just
settlement of the refugee problem; this resolution is recalled and affirmed in 338 (1973) and
1397 (2002).
5 At the beginning of the Oslo process, Richard Falk identified among the difficulties Oslo
faced as including the fact that the Palestinians living as refugees outside the West Bank and
Gaza Strip were essentially unrepresented by the PLO during the negotiations. Richard Falk,
Some International Law Implications of the PLO/Israeli Peace Process, VIII Palestine Yearbook
of International Law 1996, pp. 19-34, reproduced as Implicationsn of the Oslo/Cairo Framework
of the Peace Process, in Jean Allain (ed), Unlocking the Middle East: The Writings of Richard Falk
(Moreton-in-Marsh: Arris Books, 2003), pp. 66-94, at 66.
International Law and Human Rights in Peacemaking
90
1397 (2002),
6
within a framework of political negotiations between the parties
and with an affirmation of the customary international law prohibition on
the acquisition of territory by war. If the collective Palestinian right of self-
determination is recognised through the vision of a Palestinian state articulated
in Resolution 1397, the issue of individual rights of the refugees is not. Back
in 1948, the newly established state of Israel responded at the United Nations
to calls for it to repatriate hundreds of thousands of Palestinian refugees to
the effect that this:
... was not a question of the rights of certain individuals but of the collective interests
of groups of people. It was not enough to allow these individuals to return when and
where they desired, for the question arose as to who was to assume responsibility for
their integration in their new environment.
7
A more recent quote presents the individual right of Palestinian refugees to
return as threatening the Jewish peoples collective right to self-determination
as secured by the state of Israel. In recent weeks, Israels Prime Minister is
reported to be demanding that the Palestinians should renounce the right
of return to areas inside Israels 1948 borders as a pre-condition for
implementation of the road map, because it is a recipe for the destruction of
Israel.
8
According to Ariel Sharon:
If there is ever to be an end to the conflict the Palestinians must recognise the Jewish
peoples right to a homeland, and the existence of an independent Jewish state in
the homeland of the Jewish people. I feel that this is a condition for what is called an
end to the conflict.[. . .] The end of the conflict will come only with the arrival of the
recognition of the Jewish peoples right to its homeland.
9
Leaving aside the issue of the individual right to return in situations of mass
displacement,
10
these positions illustrate what Christine Bell has called the
meta-conflict, or conflict about what the conflict is about,
11
ultimately
forming the locus of what she terms the deal in a generic or ideal type
peace agreement. Bells consideration of Peace Agreements and Human Rights
6 UNSCR 1397 (2002) explicitly affirms a vision of a region where two States, Israel and Palestine,
live side by side within secure and recognised borders. Falk (ibid, pp. 78-79) notes the failure
to explicitly recognise the Palestinian right to collective self-determination in the two earlier
resolutions, 242 (1967) and 338 (1973). On UNSCR 242, see Musa Mazzawi, Palestine and
the Law: Guidelines for the Resolution of the Arab-Israel Conflict (Reading: Ithaca Press, 1997),
pp. 199-238.
7 UN Doc. A/C.1/SR.220 (1948) cited in John Quigley, Mass Displacement and the Individual
Right of Return, 68 British Yearbook of International Law 1997, pp. 65-125 at 76.
8 Chris McGreal, Powell arrives to face uphill struggle on road map, The Guardian, 10 May
2003; and Jonathan Freedland, Dont hold your breath, The Guardian, 16 April 2003.
9 Ari Shavit, PM: Iraq war created an opportunity with the Palestinians we cant miss, Haaretz,
30 April 2003.
10 See Quigley, supra n. 8, and sources cited therein; see also Eric Rosand, The Right to Return
under International Law Following Mass Dislocation: The Bosnia Precedent?, 19 Michigan
Journal of International Law 1998, pp. 1091-1139. Specifically on Palestinian refugees, see John
Quigley, Displaced Palestinians and a Right to Return, 39 Harvard International Law Journal
(1998), pp. 171-229; and papers to the Badil seminar by Susan Akram and Terry Rempel
(Temporary Protection as an Instrument for Implementing the Rights of Return for Palestinian
Refugees) and Karma Nabulsi (Popular Sovereignty, Collective Rights, Participation and
Crafting Durable Solutions for Refugees).
11 Bell, supra n. 3, p. 15.
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91
(2000) identifies in peace agreements three types of human rights-related
provisions: rights to self-determination or minority rights (the deal), building
for the future (institutional protection for civil, political, social, economic
and cultural rights), and past human rights violations.
12
As demonstrated in
the cases she considers (South Africa, Northern Ireland, Bosnia Herzogovina,
and Israel/Palestine), while all three are inherently interconnected, it is
particularly the meta-bargaining over the deal on the collective rights (to
self-determination) that implicates the handling of individual rights arising
from past human rights violations and hence, the nature and extent of
reparation due as she puts it, the trade-offs between different human rights
provisions including in particular the relationship between group and
individual rights.
13
Through a detailed examination of particular agreements from those four
conflicts, Bell explores the justice and peace connection, the nature of which
she finds in practice to be problematic and controversial:
The view that human rights law provides unnegotiable minimum universal standards
is often presented as in tension with the need for a pragmatic peace involving
compromise, including compromise on human rights.
14
This is familiar from the assumption cited at the beginning of this article. The
tension or dynamic of principle and pragmatism, or law and politics
15
is
addressed by Kader Asmal as the risk of a deadlock between what might be
called human rights fundamentalism, on the one hand, and cynical realpolitik
on the other.
16
Speaking some years into the new South Africa, Asmal (South
African Minister of Education at the time) locates himself as an international
lawyer speaking from a position well within the human rights discourse.
With this discourse, he notes, with a tone of gentle self-mockery:
We come up against the technocrats of the social sciences and of international
relations. These are the hard men of realpolitik, the mandarins of statecraft, who view
moralists as nave children, lacking knowledge of the real worlds harsh realities.
Asmal does not himself accept the dichotomy, and indeed his effort in the
lecture (in 1999 at the L.S.E.) is to set out the ways in which he understands
the South African approach to have moved beyond the twin traps of navet
and realpolitik,
17
offering Nelson Mandela as an example of a third way.
18
In
the literature (and in the practice) of peace processes, the positing of tensions
or dichotomies may pick out law/politics or principle/pragmatism, as cited
12 Ibid, p. 35.
13 Ibid, p. 2.
14 Ibid, p. 5.
15 Ibid, p. ix.
16 Kader Asmal, Truth, Reconciliation and Justice: The South African Experience in Perspective,
The 1999 Chorley Lecture, London School of Economics, 4 November 1999, p. 5; text available
at www.education.pwv.gov.za/Media/Articles/Chorley (last visited 20 May 2003).
17 Ibid, p. 8.
18 Asmal notes the coincidental use of this phrase to describe the South African approach by
Archbishop Desmond Tutu; ibid, p. 5 n. 28. See also Alex Boraine, Truth and Reconciliation
in South Africa: The Third Way, in Robert I. Rotberg and Dennis Thompson (eds), Truth v.
Justice: the morality of truth commissions (Princeton, NJ: Princeton University Press, 2000), pp.141-
157.
92
above, or law/power, peace/justice, truth/justice, truth/reconciliation,
depending on the dynamic and the particular situation that is being addressed.
On the academic side, certain of these dynamics are closely implicated in
increasing interest among international lawyers in the disciplinary theories of
international relations. Slaughter et al. note that for some this proceeds from
a perceived reality deficit of the law:
International law is particularly susceptible to the siren call of social science, as it
struggles perpetually with suspicions of its own irrelevance.
19
For others, on the other hand, interest in international relations scholarship
is held to reaffirm international law as an intellectual and practical enterprise
and to perceive the integration of IR and IL scholarship as the natural
corollary of the indivisibility of law and politics.
20
According to Slaughter et
al., insiders in both disciplines reject such facile distinctions as positive versus
normative, politics versus law.
21
The burgeoning scholarly literature on transitional justice deals directly
with the particular question of the justice-peace formula worked out in the
process of peace settlements. Colm Campbell et al. explain transitional justice
as a set of discourses which focuses on the problem of reconciling the
demands of peace with the imperatives of justice.
22
The issue of the right to
return for Palestinian refugees directly provokes the justice-peace debate, as
shown by the various quotes in this article and, as a conflict-related legal
legacy, falls clearly within the concerns of transitional justice as thus defined:
Transitional justice [. . .] functions as a collective title for the numerous forms of
political and legal accommodation that arise in the shift from conflict to negotiation.
Its concerns are with conflict-related legal legacies as well as with the myriad of internal
legal quandaries that are a part of the post-conflict world.
23
The peace processes in South Africa, Israel-Palestine and the former Yugoslavia
are among those that the authors identify as being more recently dealt with in
the transitional justice literature.
24
While various criticisms are made of different
aspects of the South African approach,
25
it is true that Bell puts it first among
her case studies in a summary ranking of the human rights measures included
19 Anne-Marie Slaughter, Andrew S. Tulumello and Stepan Wood, International Law and Inter-
national Relations Theory: A New Generation of Scholarship, 92/3 American Journal of
International Law (1998), pp. 367-397, at 372. The authors attribute their usage of reality
deficit to Brian Tamanaha, An Analytical Map of Social Scientific Approaches to the Concept
of Law, 15 Oxford Journal of Legal Studies (1999) 501, at p. 512.
20 Slaughter et al., supra n. 20, p. 372.
21 Ibid, p. 393. In a consideration of problem-driven interdisciplinary work, they cite Israeli-
Palestinian relations as one area where international law scholars have applied international
relations theory as a diagnostic and policy-prescriptive tool [. . .]. Ibid, p. 367, notes 48 and 49.
22 Colm Campbell, Fionnuala N Aolin and Colin Harvey, The Frontiers of Legal Analysis:
Reframing the Transition in Northern Ireland, 66:3 The Modern Law Review 2003, pp. 317-
345, at 317.
23 Ibid, p. 336.
24 Ibid, p. 334. Of particular interest for the Israel-Palestine process, the authors note (at 335)
that one of the most striking features of the recent legal scholarship in the field of transitional
justice has been a reassertion of the critical importance of international humanitarian law.
25 For example by Anthea Jeffrey, The Truth About the Truth Commission (Johannesburg: Institute
of Race Relations, 1999), cited (and challenged) by Asmal (supra n. 17, at 2).
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93
in the various peace deals according to detail and capacity to deliver change.
The Israel-Palestine deal comes last.
26
In fact, Bell holds that in both their
text and their implementation the Israeli/Palestinian peace agreements
demonstrate an almost complete divorce between the concept of peace and
the concept of justice.
27
In her categorisation of three sets of human rights
provisions typically contained in peace agreements, this is referring to the
second set, the building for the future provisions for human rights
institutions. Her evaluation of the way in which the other two sets of human
rights provisions fare in the Israel-Palestine peace agreements (rights to self-
determination and past human rights violations) is equally negative.
Bells comparison is based on a broad distinction between pre-negotiation,
framework-substantive agreements and implementation agreements, although
acknowledging inevitable overlaps in function and content and consequent
challenges to the classification.
28
Her detailed comparison is between four
sets of framework peace agreements (the type of agreement often marked
by a handshake moment)
29
in the four conflicts she considers: the South
African Interim Constitution of 1993, the Israeli-Palestinian Declaration of
Principles of 1993 and the 1995 Interim Agreement,
30
the Dayton Peace
Agreement of 1995,
31
and the Belfast (or Good Friday) Agreement of 1998.
32
Bell recognises that a key difference between the Israel-Palestine agreements
and those of the other three conflicts under examination is that the function
of the former is to build separate Israeli and Palestinian institutions and
government, rather than designing ways to share both.
33
This critical
distinction (based on the two-state solution) complicates the comparison
considerably, but does not invalidate it.
The provisions of peace agreements regarding the return of refugees and
displaced persons and property rights issues are in Bells category of past human
rights violations, or past-focussed issues, along with issues of accountability
for and (/or) truth about abuses during the conflict.
34
The way the past is
dealt with is inextricably linked with how the agreement has dealt with self-
determination and raises most graphically the justice-peace debate.
35
Thus,
in the quote from Ariel Sharon above, peace (manifested as the end of the
conflict) requires ab initio the waiving of justice (as manifested by Palestinian
refugees exercising their individual right to return including inside the 1948
borders). Sharons articulation of the relationship, on the other hand, is in
26 Her ranking on this point is South Africa, Northern Ireland, Bosnia Herzogovina, Israel/
Palestine. Bell, supra n. 3, p. 231.
27 Ibid, p. 203.
28 Ibid, p. 20, 29-32.
29 Ibid, p. 25. A leitmotif that for observers of the Israel-Palestine conflict/peace process,
immediately evokes the White House lawn.
30 She also considers elements of the Gaza-Jericho Agreement of 1994. Bell notes the particular
difficulty in drawing distinctions between the types of agreements in this conflict, see discussion
at p. 83.
31 The General Framework Agreement for Peace in Bosnia and Herzogovina, 4 December 1995.
32 Agreement reached in Multi-Party Negotiations, 10 April 1998: Bell, p. 65.
33 Bell supra n. 3, 155.
34 Ibid, p. 233.
35 Ibid, p. 9.
94
terms of a fit between peace and justice, with his presentation of the Jewish
peoples rights to self-determination being exercised inside the 1948 border.
When combined with Sharons apparent acceptance of a Palestinian state,
36
the deal here is presented as mutual recognition of collective rights to be
exercised separately and to exclude the exercise of the individual right to
return.
The different types of past-focussed issues considered by Christine Bell
tend to be dealt with, as she points out, at different points in peace processes,
and the discussions on measures taken and mechanisms established for the
purpose of dealing with the past are increasingly informed by developments
in mechanisms of both retributive and restorative justice. As for the first,
the developing concept in international law of a duty to prosecute
37
is not
an explicit feature in the texts of peace agreements. The International Criminal
Tribunal for the former Yugoslavia (the Tribunal) was set up as the conflict
was ongoing, rather than being established as part of the agreement between
the parties, although subsequently its mandate was deferred to by both the
process leading to and the text of the Dayton Peace Agreement in regard to
the exclusion of persons indicted by the Tribunal from the negotiations and
the exclusion from prisoner releases and amnesties of those charged with
crimes within its jurisdiction.
38
The role played in peacemaking by the
prosecution of perpetrators is assessed in a separate paper,
39
but it is worth
noting here that the application of retributive justice through criminal
prosecution, as one approach to dealing with the past, is not entirely in the
hands of those negotiating the peace, or reliant on the international
community for the establishment of tribunals. In the case of Israel as an
Occupying Power, there is of course the explicit obligation to search for and
prosecute those accused of grave breaches of the Fourth Geneva Convention
Relative to the Protection of Civilian Persons in Time of War.
40
Israels co-
36 What he means by statehood for Palestinians remains unclear.
37 See Diane F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations
of a Prior Regime, 100 Yale Law Journal 1990-1991, pp. 2537-2615; and Bell, supra n. 3, p. 258 ff
and sources at n. 1.
38 The opposition of the United States to the mandate of the International Criminal Court (as
compared with conflict-specific tribunals) is well documented. A recent press release by Amnesty
International calls on the government of Bosnia and Herzogovina to refuse to sign an impunity
agreement on which the United States is insisting, under threat of withdrawal of military
assistance. The agreement would commit the government not to surrender US nationals
accused of genocide, crimes against humanity and war crimes to the new International Criminal
Court. Amnesty International, Bosnia and Herzogovina: The government should reject US
impunity agreement, 16 May 2002, AI Index EUR 63/011/2003.
39 Alejandra Vincente, Justice Against Perpetrators: The Role of Prosecution in Peacemaking
and Reconciliation, paper to the Badil seminar.
40 Article 147 of the Convention defines grave breaches as those involving any of the following
acts, if committed against persons or property protected by the present Convention: willful
killing, torture or inhuman treatment, including biological experiments, willfully causing great
suffering or serious injury to body or health, unlawful deportation or transfer or unlawful
confinement of a protected person, compelling a protected person to serve in the forces of a
hostile Power, or willfully depriving a protected person of the rights of fair and regular trial
prescribed in the present Convention, taking of hostages and extensive destruction and
appropriation of property, not justified by military necessity and carried out unlawfully and
wantonly.
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parties to the Convention have studiously ignored this obligation, although
many have complied with the obligation to promulgate national legislation
enabling such prosecutions to be launched against those of any nationality.
This may give a certain scope for those outside the political processes to take
the law, so to speak, into their own hands, in their pursuit of justice; a recent
case in point being the effort by lawyers in London to prompt a prosecution
under the Geneva Conventions Act of Lieutenant General Shaul Mofaz on
charges relating to events in the Jenin refugee camp in April 2002.
41
In a
report commissioned against the background of the high-profile legal action
against Ariel Sharon in the Belgian courts relating to the 1982 massacre of
Palestinian refugees in Sabra and Chatila, Israels Ministry of Justice was
reported to have singled out Britain, Spain and Belgium as the most likely to
prosecute Israelis who breach international law.
42
This must be referring to
the potential for initiatives originating in civil society, rather than state action;
it is doubtful that the political leaders (or their civil servants) of any of the
three countries named would see this form of justice as helpful contributions
to their own foreign policy priorities. Indeed, following increasing numbers
of legal actions against a range of foreign leaders, the Belgian authorities
moved in April 2003 to amend the 1993 anti-atrocity legislation.
43
The extent
of the amendments dismayed human rights organisations, which according
to Human Rights Watch had long proposed establishing filters to prevent
frivolous cases and render the law more politically viable.
44
It remains to be
41 Scotland Yard was reported to be investigating. Chris McGreal, Amnesty calls for arrest of
Israelis for war crimes, The Guardian, 4 November 2002. See Amnesty International, Shielded
from Scrutiny: IDF violations in Jenin and Nablus, AI Index MDE 15/143/2002 4 November 2002.
42 Chris McGreal, Israelis fear war crimes arrests, The Guardian, 12 November 2002. For
background on the action against Ariel Sharon, see Amnesty International, International
Justice for Sabra and Chatila Victims 25 September 2002, AI Index MDE 15/144/2002.
43 Loi relative la rpression des infractions graves aux Conventions de Genve du 12 aout 1949
et aux Protocoles I et II du 8 juin 1977, Law of 16 June 1993, as amended in February 1999 by
Loi relative la rpression des violations graves du droit international humanitaire, which
included genocide and crimes against humanity, under which sections many of the actions
were filed. Implementing the principle of universal jurisdiction over these grave breaches and
international crimes, the law enabled Belgian courts to hear criminal complaints by victims of
any nationality against officials of any nationality on accusations of genocide, crimes of humanity
and war crimes. In April 2003 the Belgian Parliament voted through amendments that inter
alia give wider scope to the judiciary to reject claims involving non-Belgians, and allow the
government to intervene to have cases transferred to the home state of the accused where
the state is considered to uphold the right to a fair trial and where the victim is not Belgian.
See briefing by Human Rights Watch, Belgium: Anti-Atrocity Law Limited, 5 April 2003
(at www.hrw.org/press/2003/04/belgium040503.htm, last visited 14 May 2003). According
to Human Rights Watch, this last provision will subject the government to diplomatic pressure
when a complaint is filed. Such pressure was most recently evident when a Brussels lawyer
confirmed that 19 Iraqi plaintiffs were seeking to bring charges against U.S. General Tommy
Franks and other U.S. soldiers in relation to alleged crimes including failure to prevent the
looting of hospitals and a shooting incident on a Red Crescent ambulance. Ian Black, Franks
may face war crimes change, The Guardian, 30 April 2003. The case was filed on 14 May
(George Monbiot, Lets hear it for Belgium, The Guardian, 20 May 2003). Human Rights
Watch (loc cit.) notes that cases have also been filed under the law against, inter alia, Saddam
Hussein, Fidel Castro, Paul Kagame and Yasser Arafat along with a list of others, although
noting that many of these cases have not been actively pursued. The Belgian Supreme Court
had already ruled in February 2003 that as a top sitting state official, Prime Minster Ariel
Sharon had immunity in the Belgian courts.
96
seen whether the new version is in practice a workable balance of law and
politics. What may be less easy to track is whether, if serious concerns persist
and are publicised in Israel (and specifically among the armed forces) about
the implementation of national legislation providing for universal jurisdiction
over allegations of grave breaches of the Fourth Geneva Convention, the
deterrent effect of potential criminal justice proceedings against implicated
Israeli nationals abroad will in fact help reduce the level of serious violations
of international humanitarian law which in turn could substantively promote
the prospects for peace-building.
45
The arguments around prosecution as a mechanism for establishing
accountability for past abuses
46
are provoked inter alia by agreements on
amnesty, which may be presented as key elements of transition to peace.
47
In
this regard, Bell reports evidence that the demands of international law for
accountability have increasingly shaped domestic initiatives such as the
establishment of truth commissions.
48
In a comparison of 15 truth
commissions written in 1994, Priscilla Hayner observes that prosecutions are
rare after a truth commission report, although her reference is explicitly to
prosecutions in the national legal system.
49
In South Africa, Catherine Jenkins
44 Human Rights Watch, Belgium: Anti-Atrocity Law Limited, supra n. 44.
45 See Lynn Welchman, supra n. 3; compare Bell, supra n. 3, pp. 116-117.
46 Summarised by Bell at pp. 271-272.
47 See Catherine Jenkins, Amnesty for Gross Violations of Human Rights in South Africa: A
Better Way of Dealing with the Past? in Ian Edge (ed), Comparative Law in Global Perspective
(Transnational Publishers, 2000), pp. 345-386, at pp. 353-366 on amnesties and international
law. Bell (p. 273) points out that limited effect amnesties are likely to take place at different
stages of peace processes: prisoner releases, for example, or the return of certain categories of
refugees, as confidence building measures, or to enable key negotiators to participate in the
process (her example here is South Africa), may occur at a very early stage (the pre-negotiation
stage according to Bell, by the framework-substantive agreement at the latest). She contrasts
these with more holistic or comprehensive past-oriented mechanisms such as the Truth
and Reconciliation Commission (TRC) in South Africa, which was based in a post-amble to
the Interim Constitution negotiated between the African National Congress and the then
South African government, but enacted as a mechanism only subsequent to the change in
government. Bell finds only piecemeal measures for dealing with discrete issues in the Belfast
Agreement and the Israeli-Palestinian agreements. Confusion around the standing of such
limited measures in the Israel-Palestine context was highlighted recently with the arrest of
Muhammad Abbas (Abu Abbas) in Iraq by U.S. special forces. The press reported Italys
announcement that it would seek his extradition to face trial; Saeb Erekat insisted that PLO
members must not be arrested or prosecuted for acts before the DoP, in accordance with the
Interim Agreement signed inter alia by U.S. President Bill Clinton; the Israeli Supreme Court
was reported as having declared Abbas immune from prosecution in Israel in 1998, citing the
Interim Agreement, while a radio interview with an Israeli spokesman appeared to suggest
that subsequent acts on his part might change his status; and as for the United States, while
the Justice Department was reported as saying it had no grounds on which to seek his extradition
since Washington had dropped a warrant for his arrest, a State Department official was quoted
by Reuters as saying that agreement only concerned arrangements between Israel and the
Palestinian Authority and does not apply to the legal status of persons detained in a third
country. The Guardian, 16 April 2003; and Richard Norton-Taylor and Conal Urquhart, Abbas:
US Trophy or Reformed Terrorist? The Guardian, 17 April 2003.
48 Bell, supra n. 3, p. 272.
49 Priscilla Hayner, Fifteen Truth Commissions 1974 to 1994: A Comparative Study, 16 Human
Rights Quarterly (1994) pp. 597-655, at p. 604. Her article was completed just as the South
Africans announced plans to establish a truth commission.
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notes the case made for the application of a model of restorative justice, which
included a provision for amnesty in the post-amble of the Interim Constitution
and the Promotion of National Unity and Reconciliation Act of 1995
establishing the Truth and Reconciliation Commission (TRC). According to
Jenkins, the restorative justice concept was identified as a potential means of
reconciling the political imperatives of new nationhood with the demands of
human rights norms and the more traditional concept of retributive justice.
50
Also writing on South Africa, David Crocker describes restorative justice as
rehabilitating perpetrators and victims and (re)establishing relationships
based on equal concern and respect.
51
Alex Boraine describes the TRC as a
third way between the choices of a blanket amnesty and criminal prosecutions
of perpetrators of gross human rights violations.
52
Among the elements that
Jenkins (writing in 2000) regards as strengths in the system as set up by the
Act were the potential for the disclosure and dissemination of information
about violations (the need for the truth), including the public and dignified
space to be given to victims to tell their truths, the expectation that amnesty
would involve an acknowledgement of wrongdoing on the part of the
wrongdoers, the potential for achieving moral and social (if not legal)
accountability, the requirement that the TRC make recommendations for
reparation measures for victims, and the combined potential of many of these
elements for individual and society reconciliation and the building of a culture
of human rights.
53
Many of these elements are included in the core content
of the concept of reparations as outlined below, a concept with critical
significance for Palestinian refugees in its inclusion of restitution. It might be
noted here that in specific regard to the Nakbah, Karma Nabulsi and Ilan
Papp have observed that we can all look to South Africa for a practical
model in their call for mechanisms to encourage the Israeli people to learn
about their own past:
. . . not as a means of retribution or blame but as a measure of restitution and
reconciliation, as the beginning of a concrete process of peace and mutual recognition
. . . Facing the past as a way out of the present impasse has proved successful with
deep-rooted conflicts. The image of two communities of suffering is central to this
process, for the role of the Holocaust in the memory and actions of the people of
the state of Israel is essential for understanding their attitude towards the refugees.
54
An early evaluation of the practice (not the principle) of the TRC
55
is
consolidated in a later article where Jenkins reviews the experience of the
South African TRC in light of the approval by the National Council of East
Timor of a draft regulation by the United Nations Transitional Administration
50 Jenkins, Amnesty, supra n. 48, p. 374.
51 David Crocker, Truth Commissions, Transitional Justice and Civil Society, in Rotberg and
Thompson, Truth v. Justice (supra n. 19), pp. 99-112, at p. 105.
52 Boraine, Truth and Reconciliation in South Africa, supra n. 19, p. 143.
53 Ibid, pp. 373-376. Compare the evaluations of the unique features of the South African model
in, inter alia, Boraine (supra n. 19), Crocker (looking at it as a process of transitional justice,
supra n. 52); and Martha Minow, The Hope for Healing: What Can Truth Commissions Do?
in Rotberg and Thompson (eds), Truth v. Justice (supra n. 19), pp. 235-260.
54 Karma Nabulsi and Ilan Papp, Facing up to Ethnic Cleansing The Guardian, 19 September
2002.
55 Jenkins, Amnesty, supra n. 48, pp. 376-386.
98
for East Timor to establish a Commission for Reception, Truth and
Reconciliation in East Timor,
56
with a mandate, inter alia, of
. . . establishing the truth regarding past human rights violations in East Timor,
assisting in restoring the human dignity of victims, promoting reconciliation and
supporting the reception and reintegration of individuals who have caused harm to
their communities.
57
An earlier International Commission of Inquiry established by the United
Nations had been mandated to collate information only on violations of 1999
when the Occupying Power, Indonesia, had finally left the territory after an
occupation that had lasted since 1974. The Commission on Inquiry had
recommended that the United Nations proceed with measures to ensure
reparations for victims, consider the issues of truth and reconciliation and
establish an international human rights tribunal to ensure the prosecution
of those accused of serious violations of fundamental human rights and
humanitarian law in the period within its mandate. Jenkins notes that no
such tribunal had yet been established, and with particular regard to violations
committed before 1999, cites Bishop Carlos Belo:
While we believe in and promote reconciliation, the people of East Timor are crying
out for justice against the perpetrators of the horrendous crimes committed during
the Indonesian occupation. Without justice, the broken-ness continues.
58
For her part, Jenkins considers that the main consideration militating against
an international tribunal may well be what the International Commission of
Inquiry termed the rush of events to redefine relations in the region,
59
and
warns against unrealistic expectations of the East Timorese Commission. In
her assessment of the South African experience of restorative justice and in
particular with regard to reparation, Jenkins notes that the TRCs proposals
regarding material reparations for victims were eventually rejected by the ANC-
led government as too expensive; the importance of reparations, she
observes, was undoubtedly under-estimated in South Africa and was perhaps
the Achilles heel of the entire process.
60
Away from the experience of the TRC, a titanic struggle over land
restitution and property rights in South Africa preceded agreement, in the
Interim Constitution, on a limited right to restitution under the rubric of
the fundamental right to equality.
61
The subsequent Restitution of Land Rights
Act of 1994 allowed for restitution claims dating back to 1913, with a wide
definition of a right in land and a provision that direct descendents of the
dispossessed (and not merely the dispossessed themselves) would be entitled
56 Catherine Jenkins, A Truth Commission for East Timor: Lessons from South Africa? (2002)
Journal of Conflict and Security Law 7/2, pp. 233-251.
57 Ibid, p. 234.
58 Ibid, p. 236 citing Nobel Laureate Appeals for East Timor Tribunal AP 23 April 2001.
59 Jenkins, loc cit.
60 Jenkins, supra n. 57, p. 246.
61 Catherine Jenkins, After the Dry White Season: The Dilemmas of Reparation and Reconstruc-
tion in South Africa, 2000 South African Journal of Human Rights, pp. 417-485, at p. 450. Specific
targets of land restitution would necessarily include the impact of race-based legislation on land
ownership dating from 1913 and the Group Areas Acts of 1950 and 1966 specifying particular
areas of land to be used exclusively by a particular racial group; Jenkins at pp. 451-452.
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99
to enforce restitution of a right in land.
62
Issues of current private ownership,
the history of the dispossession, the uses to which the land is being put, the
desirability of avoiding major social disruption whether restoration would be
just and equitable, the designation of a piece of alternative land from state
ownership, or the payment of compensation in lieu thereof were among
matters for consideration by the Land Claims Court;
63
claims for restitution
were to be lodged by the last day of 1998. Jenkins overview of the process
reveals problems related to the length of time it was taking to settle the
thousands of claims, the reduction in value of compensation awards and a
move away from land restoration in urban areas:
Land restitution, once perceived as an essential part of redressing the injustices of
the apartheid past and the suffering caused by forced removals, has come to be seen
as an expensive millstone around the neck of the government.
64
Officials of the South African government have referred to the enormous
financial implications of full and fair compensation in light of other social
priorities pressing on the countrys budget.
65
The lessons to be learned, for
Jenkins, implicate both process the need to design a mechanism capable of
settling claims promptly, possibly implying an administrative rather than a
judicial process in cases of compensation and resources, with a warning that
political and economic constraints need to be taken realistically into account
at the design stage.
Jenkins also suggests that the international community consider ways in
which reparation for victims can be partly funded by the international
community,
66
in the context of the ongoing effort at the United Nations to
develop the Draft Basic Principles and Guidelines on the Right to a Remedy
and Reparation for Victims of International Human Rights and Humanitarian
Law.
67
The Draft Basic Principles explicitly adopt a victim-oriented point of
62 Ibid, p. 453.
63 Ibid, pp. 453-454.
64 Ibid, p. 456.
65 Jenkins cites the Chief Land Claims Commissioner as follows: We are trying to redress the
dispossession, but excessive amounts cannot be met by the fiscus. Land restitution competes
with portfolios like health, education, transport and safety and security all pressing needs in
South Africa. We face volumes of claims this is a gesture to try to heal the wounds of the
past. Ibid, p. 456 citing Business Day, 2 May 2000.
66 Jenkins, supra n. 62, p. 483.
67 Jenkins describes the draft Basic Principles as an attempt to codify the existing obligations of
states in respect of remedies and reparation, as well as to indicate emerging norms and existing
(non-binding) standards (ibid, 439). In a process that has lasted since 1989, the first set of
draft guidelines was drawn up by Theo van Boven in 1993 (UN.Doc E/CN.4/Sub.2/1993/8)
and according to Mona Rishmawi acquired a life of their own (Mona Rishmawi, The History
of the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims
and Violations of International Human Rights and Humanitarian Law, presentation to the
NGO Parallel Meeting of the 59th session of the U.N. Commission on Human Rights, 8 April
2003). After circulation among states, intergovernmental and non-governmental organisations,
the Commission on Human Rights appointed Cherif Bassiouni to prepare a revised version,
which was submitted in 2000 (UN Doc. E/CN.4/2000/62) and in its turn circulated for
comment. A consultative meeting held in Geneva in the summer of 2002 by the Office of the
High Commissioner for Human Rights and reported to the Commission on Human Rights in
April 2003 (UN Doc. E/CN.4/2003/63).
100
departure and include both retributive
68
and restorative
69
approaches to
justice. Specifically on reparation, they hold that states should provide victims
of violations of international human rights and humanitarian law the following
forms of reparation: restitution, compensation, rehabilitation, and satisfaction
and guarantees of non-repetition.
70
They continue:
Restitution should, wherever possible, restore the victim to the original situation
before the violations of international human rights or humanitarian law occurred.
Restitution includes: restoration of liberty, legal rights, social status, family life and
citizenship; return to ones place of residence; and restoration of employment and
the return of property.
71
Measures of satisfaction and guarantees of non-repetition are to include, where
applicable, apology, including public acknowledgement of the facts and
acceptance of responsibility.
72
In the case of the Palestinian refugees, Nabulsi
and Papp call on all those involved in resolving the conflict to have the
public courage to confront the Israeli denial of the expulsion and ethnic
cleansing at the heart of the Palestinian refugee question, identifying this as
the single largest stumbling block towards a lasting peace between both
peoples.
73
The matter of apology and acknowledgement of responsibility has
been raised also in relation to Britain. Writing in the spring of 2001, the Joint
Parliamentary Middle East Councils Commission of Enquiry Palestinian
Refugees included the following recommendation, in view of what they had
themselves heard from Palestinian refugees in the camps of Jordan and
Lebanon:
The British Government might consider it particularly appropriate, at this time, to
make some verbal gesture of acknowledgement of the historical responsibility that
Britain bears for the creation of the refugee crisis that continues today. Although
symbolic, this could help the Palestinian people towards a future, as well as showing
the way that others might also acknowledge their roles in the creation of this
catastrophe.
74
68 Violations of international human rights and humanitarian law norms that constitute crimes
under international law carry the duty to prosecute persons alleged to have committed these
violations. . . UN Doc.E/CN.4/2000/62 para. 4.
69 In a background briefing on the Draft Basic Principles, a coalition of international human
rights organisations locate the principle of reparation in restorative justice theory, an ancient
way of thinking about justice that goes beyond retribution. They continue:
Reparation goes to the very heart of human protection it has been recognised as a vital
process in the acknowledgement of the wrong to the victim, and a key component in
addressing the complex needs of victims in the aftermath of violations of international
human rights and humanitarian law.
Redress, OMCT, Amnesty International et al., The Draft Basic Principles and Guidelines on
the Right to Remedy and Reparation for Victims of Violations of International Human Rights
and Humanitarian Law, at www.alrc.net/doc/reparationvv.doc (last visited 16 May 2003).
70 UN Doc. E/CN.4/2000/62 para. 21. Jenkins (After the Dry White Season, supra n. 62, p.
439, n. 118) notes that the Principles use the word shall for existing international obligations
and the word should for emerging norms and existing standards (emphasis in original).
71 UN Doc. E/CN.4/2000/62 para. 22.
72 Ibid, para. 25.
73 Nabulsi and Papp, supra n. 55.
74 Joint Parliamentary Middle East Councils Commission of Enquiry Palestinian Refugees,
Right of Return, London, 2001, p. 27.
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The issue of restitution, as defined in the Draft Principles above, immediately
implicates the past-focussed issues of refugees, the right to return and the
restoration of property. In 1997, U.N. Special Rapporteur Awn al-Khasawneh
explained the principle of restitutio in integrum as the remedy for population
transfer:
Restitutio in integrum [. . .] aims, as far as possible, at eliminating the consequences of
the illegality associated with particular acts such as population transfer and the
implantation of settlers. A crucial aspect of this involves the right to return to the
homeland or the place of original occupation in order to restore the status quo and
to reverse the consequences of illegality. This right is recognised, for example, in
relation to Palestinians, in the Dayton Agreement, and Agreement on Deported
Peoples of the Commonwealth of Independent States; it establishes a duty of the
part of the State of origin to facilitate the return of expelled populations.
75
He notes that this remedy would also involve the payment of compensation
to the victims and survivors of population transfers.
76
The following year, the
Sub-Commission on Prevention of Discrimination and Protection of Minorities
reaffirmed the right of all refugees [. . .] and internally displaced persons to
return to their homes and places of habitual residence in their country and/
or place of origin.
77
In the preamble to the resolution the Sub-Commission
recognised:
That the right of refugees and internally displaced persons to return freely to their
homes and places of habitual residence in safety and security forms an indispensable
element of national reconciliation and reconstruction and that the recognition of
such rights should be included within peace agreements ending armed conflicts.
The Dayton Agreement contains extensive provisions for the rights of refugees
and displaced persons in its Annex 7, including the concept of safe return
(the conditions to which they are returning) and property rights. Paul
Prettitores case study for the Badil seminar, on housing and property
restitution in Bosnia and Herzogovina, goes into considerable detail on the
implementation of the provisions on property restitution as well as providing
an overview of property repossession under different international law
regimes.
78
A number of points of comparative interest arise from his evaluation,
including his assessment that the process engaged by the Property Law
Implementation Plan aiming at full implementation of the property laws
became truly effective when it moved from a political process driven by
political forces to a rule of law process based on individual rights.
79
He also
75 UN Doc. E/CN.4/Sub.2/1997/23 para. 60.
76 Ibid, para. 61.
77 Sub-Commission resolution 1998/26 Housing and property restitution in the context of the
return of reguees and internally displaced persons.
78 Paul Prettitore, The Right to Housing and Property Restitution in Bosnia and Herzogovina:
A Case Study April 2003 at the Badil seminar, at 21-34. See also UN Doc. E/CN.4/Sub.2/
2002/17, The return of refugees or displaced persons property, working paper submitted
to the Sub-Commission on the Promotion and Protection of Human Rights pursuant to Sub-
Commission decision 2001/122, by Mr Paulo Srgio Pinheiro, paras. 22-41.
79 Prettitore, supra n. 79, p. 15.
102
points up the advantages of an administrative rather than a judicial process
for claims, including speedier resolution.
80
As regards compensation, although
refugees and displaced persons were recognised in the Dayton Peace
Agreement as having the right to compensation in cases where their property
could not be restored, the designated mechanism (the Refugees and Displaced
Persons Fund) has not been established (no resources were made available)
and in practice compensation did not materialise as envisioned.
81
Once again,
the issue of resources imposes itself on the implementation of recognised
rights.
Compared to Dayton, the provisions regarding refugees in the Israeli-
Palestinian agreements so far concluded are minimal; indeed it is part of the
deal so far that the refugee issue is postponed until the final status agreement.
Bell points out that there are in fact references in the Declaration of Principles
to agreements to be made on admitting persons displaced from the West
Bank and Gaza Strip in 1967 (not 1948 refugees) and the establishment of
the multilateral Refugee Working Group.
82
However, where Bells comparison
informs in this regard is the similarity she finds in that in both the Dayton
Agreement and the existing Israeli-Palestinian agreements, the meta-bargain
failed to resolve the central conflict which has been relocated, in part, to
issues of return and access to land. In Bosnia and Herzogovina, she underlines
the significance of return for the self-determination deal through the
assumption that large-scale returns would change the power balances and
territorial realities of the separate Entities and unitary state structure agreed
to in the DPA and attributes to this what she considers (on figures from
1999) as a failure of implementation of Daytons terms.
83
Prettitore provides
updated figures of nearly a million returnees to pre-war homes and an up-
beat assessment of strong progress on property repossession. However, it is
clear that much of the progress has been achieved not through the will and
choice of the Entities and their agents but through the continuing involvement
and pressure of the international community, including direct intervention
in matters of domestic legislation and implementation by the Office of the
High Representative, and thus that Bells assessment of the failure of the meta-
bargain between the parties is likely to remina valid. The extent to which the
international community was involved and remains involved in Dayton, and
the role of third parties in securing Oslo, is a closely related point of comparison
that Bell makes between the peace deals in Bosnia and Herzogovina and Israel-
Palestine, to be returned to shortly in this article. Summarising pragmatic
peace arguments in response to the refugee-specific just peace thesis
advanced by the UNHCR, she states:
In short, return of refugees and land justice can begin to rewrite the territorial
compromise at the heart of the deal, and this crucially affects bargaining over them.
Even if return is provided for in a peace agreement, implementation will not
80 Ibid, p. 10.
81 Ibid, pp. 16-17.
82 Bell, supra n. 3, pp. 248-250.
83 Ibid, p. 252.
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necessarily follow. If return of refugees is a signifier of peace, then where the deal
has failed to resolve the conflict (rather than just the violence), the conflict will
continue to be waged not least through whether, how, and to where refugees and
displaced persons are returned.
84
The legal basis of the established right to return of Palestinian refugees is not
the subject of this article.
85
However, it is worth noting that currently, the
negotiating dynamics of the peace process, and the failure by the sponsoring
third parties to affirm the right to return in their vision of a realistic peace,
certainly appear to contemplate Bells scenario, where the right of return
increasingly becomes subject to barter, effectively overwriting a plethora of
General Assembly resolutions,
86
as well as, it might be added, strong positions
in international human rights law.
87
In other conflicts, the Security Council as well as the General Assembly
continues to reaffirm the right to return, and indeed the right to return to
ones home. In his 2002 report on The return of refugees or displaced
persons properties, Paulo Srgio Pinheiro cites the Security Council in recent
years as having reaffirmed this principle in resolutions addressing
displacement in numerous countries and regions, including Abkhazia and
the Republic of Georgia, Azerbaijan, Bosnia and Herzogovina, Cambodia,
Croatia, Cyprus, Kosovo, Kuwait, Namibia and Tajikistan.
88
The General
Assembly he cites as having reaffirmed or recognised the right to return to
ones home in resolutions concerning Algeria, Cyprus, Palestine/Israel and
Rwanda.
89
In a later paragraph he considers peace agreements:
The right to housing and property restitution has also been recognised and utilised
in several agreements designed to end conflict, including those dealing with the
return of displaced persons in post-conflict situations in Bosnia and Herzogovina,
Cambodia, Guatemala, Kosovo, Mozambique and Rwanda.
90
As for the remedy of compensation:
. . . the overwhelming consensus regarding the remedies of restitution and
compensation is that compensation should not be seen as an alternative to restitution
and should only be used when restitution is not factually possible or when the injured
party knowingly and voluntarily accepts compensation in lieu of restitution.
91
Having found the rights established and recognised, Pinheiros conclusion is
that what needs careful study is the disjunction between existing standards
and the reality on the ground.
92
Khasawnehs earlier report similarly raised
the contrast between the recognition of restitutio in integrum as the remedy for
84 Ibid, p. 256.
85 See Terry Remples paper to the Badil seminar, UN General Assembly Resolution 194 (III)
and the Framework for Durable Solutions for 1948 Palestinian Refugees, and other sources
at n. 11 above.
86 Bell, supra n. 3, 258.
87 See www.hrw.org/campaigns/israel/return (last visited 16 May 2003).
88 UN Doc. E/CN.4/Sub.2/2002/17, supra n. 79, para. 24 (references to resolutions not
reproduced here).
89 Ibid, para. 25.
90 Ibid, para. 40.
91 Ibid, para. 57.
104
population transfer, and the fact that this remedy may not be achievable in
practice, as an illustration of the dissonance (or antagonism, as he puts it)
between principle and pragmatism in negotiating peace:
What is important to emphasise here is that the suggestion that restitutio in integrum
should not always be insisted on touches on the fundamental question of the innate
antagonism between peace and justice. Obviously restitutio in integrum is the most just
remedy because it seeks to wipe out the consequences of the original wrong. On the
other hand, peace is ultimately an act of compromise. To put it differently, peace is
by definition a non-principled solution reflecting the relative power of the conflicting
parties, or simply the realization that no conflict, no matter how just it is perceived
to be, can go on for ever. In reality, therefore, while the primacy of restitutio in integrum
has to be continuously reaffirmed, most conflicts end with situations where some
form of pecuniary compensation sometimes in the form of development aid is
substituted for the right of return. Only time can tell whether such solutions will
withstand the test of durability without which peace becomes a formal truce.
93
We come, again, to the immediate implication of the right to return and to
restitution (extrapolated into the politics of demographics and of land) in
the justice-peace dynamic. Khasawnehs final observation goes clearly to the
argument that at least sufficient justice is necessary if a peace is to last; and, of
course, to the meanings of peace. Pragmatism, as well as principle, requires
addressing any perceived reality deficit of the law in order for a workable
justice/peace formula to be agreed and sustained.
For a final comparison, illustrating also the involvement of unofficial or
civil society actors and their relationship with the guarantees offered by
international law, we can take the Cyprus conflict. In recent developments,
although no agreement has been reached at the time of writing, the parameters
of the particular matters to which failure to reach agreement were attributed
publicly at least would fit well with Bells arguments on the meta-bargain.
The U.N.-sponsored Set of Ideas on an Overall Framework Agreement on
Cyprus (1992) promotes reunification of the island along the broad lines of
two federated states, bi-communal as regards the constitutional aspects and
bi-zonal as regards the territorial aspects, with detailed ideas for the federal
constitution and references to agreements and arrangements yet to be made
between the parties in respect of issues such as territorial adjustments and
displaced persons.
94
Under the original text it appears that the option to
92 Ibid, para. 29. In 2003 the Commission on Human Rights endorsed the decision of the Sub-
Commission of the Promotion and Protection of Human Rights (Res. 2002/7 of 14 August
2002) to appoint Pinheiro as Special Rapporteur with the task of preparing a comprehensive
study on the subject. Decision 2003/109, UN Doc.E/CN.4/2003/2.11/Add.6 25 April 2003.
In the current report (paras. 42-55), he examines a range of impediments and challenges to
implementing the right, including issues of secondary occupation (including by other displaced
persons), laws on abandoned property, and the destruction of property registration and records.
93 Supra n. 76, para. 63.
94 The Security Council has endorsed this idea of a State of Cyprus with a single sovereignty and
international personality and a single citizenship, with its independence and territorial integrity
safeguarded, and comprising two politically equal communities [. . .] in a bi-communal and
bi-zonal federation, and that such a settlement must exclude union in whole or in part with
any other country or any form of partition or secession. See for example SCRs 649 (1990),
716 (1991), 750 (1992), 774 (1992).
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105
return may be selected only by current permanent residents of Cyprus
who at the time of displacement owned their permanent residence in the
federated state administered by the other community and who wish to resume
their permanent residence at that location. Those who were renting would
be given priority under the freedom of settlement arrangements. Other
claims (including of heirs) would appear to fall to claims for compensation,
which would be funded from the sale of properties transferred on a global
communal basis between agencies acting for the two communities; other
governments and organisations would be invited to contribute to this fund.
95
The initiatives of civil society actors brought the property-related grievances
of Greek Cypriots to the European Court of Human Rights (ECtHR). In 1989,
Mrs Titina Loizidou joined a march organised by the Women Walk Home
Movement, seeking to assert the right of Greek Cypriot refugees to return to
homes they had left in 1974 when Turkish troops occupied the north of the
island. Prevented from crossing by Turkish troops and then arrested by Turkish
Cypriot police, she took her claim to the Court, which issued two rulings on
the case.
96
In the first (1996) the ECtHR found for the claimant, declining to
recognise an irreversible expropriation of property in the north and holding
that the denial of Mrs Loizidous access to her property and consequent loss
of control thereof was imputable to Turkey. Arguing against the claim, the
Turkish government argued, inter alia, that ruling on such matters would
undermine the intercommunal talks, which were the only appropriate way of
resolving this problem. The ECtHR found that this could not provide a
justification under the European Convention. In the second decision, in 1998,
the ECtHR awarded Mrs Loizidou compensation for pecuniary and non-
pecuniary damage
97
against the Turkish government. The latter again made
the case that the question of property rights and reciprocal compensation is
the very crux of the conflict in Cyprus and can only be settled through
negotiations and on the already agreed principles of bi-zonality and bi-
communality.
98
With Turkey refusing to implement the Loizidou decision, the Attorney-
General of the Republic of Cyprus invited a group of international legal experts
to provide an opinion on Turkeys position, including that:
Turkey has claimed that the decision could only be implemented within the
framework of a Turkish Cypriot proposal for a Joint Property Claims Commission
which envisages compulsory acquisition of Greek Cypriot and Turkish Cypriot
95 Set of Ideas on an Overall Framework Agreement on Cyprus (1992) paras. 77-80; available at
www.pio.gov.cy/docs/un/ideas (last visited 11 May 2003).
96 Case of Loidizou v. Turkey, decisions of 18 December 1996 and 28 July 1998.
97 For loss of use of the land, nor for expropriation as she had been found to still be the legal
owner; she had withdrawn a claim for the restoration of her rights.
98 Although the ECtHR ruled nevertheless on Mrs Loizidous rights, a number of its judges gave
dissenting opinions on various grounds including that it is impossible to separate the situation
of the individual victim from the complex historical developments and a no-less complex
current situation (dissenting opinion of Judge Bernhardt, 1996) and Given that efforts are
under way to arrive at a peaceful settlement of the Cyprus problem within UN, CE and other
international bodies, a judgment of the European Court may appear as prejudicial (dissenting
opinion of Judge Jambrek 1996).
106
properties against compensation to be provided, eventually, from various sources
including contributions from third States and international organisations.
99
The experts consider factual situations of forcible mass transfer or enforced
displacement under different provisions of international law
100
and advise
the Republic of Cyprus that it could not, consistently with its international
obligations, accept or implement the proposal for a Joint Property Claims
Commission.
101
The legal and political battles over the land issue, mostly
projected by the different sides of the argument as involving either individual
or collective rights, were raised again at the beginning of this year when the
U.N. Secretary-General involved himself in particularly intensive efforts to
encourage the parties to reach agreement on a settlement before Cyprus
became a member of the European Union in April.
102
The effort failed at the
last minute; The Guardian reported that the talks stumbled over Turkish
insistence that their breakaway Cypriot state win full recognition, and demands
by the Greeks for the right of refugees to return to homes in northern Cyprus
that they left 29 years ago.
103
The intense and direct involvement of the U.N. Secretary-General in these
efforts, and the United Nations role in the Set of Ideas, may suggest that
Cyprus has features of the models of Bosnia and Herzogovina and Israel-
Palestine, in Bells scheme, although the mass support reported as being shown
for the reunification plan by Turkish Cypriots introduces a different dynamic.
104
In her comparison of the peace agreements in South Africa, Northern Ireland,
99 Opinion: Legal Issues Arising from Certain Population Transfers and Displacements on
the Territory of the Republic of Cyprus in the Period since 20 July 1974, Georges Abi-Saab
and nine others, 30 June 1999. Available at www.pio.gov.cy/docs/other/opinion (last visited
11 May 2003).
100 Ibid: Mass transfers can occur in a variety of ways, including the following:
a) forcible transfer or enforced flight, where the government of the sending State or of
some territorial unit within it expels the populations concerned, or deliberately causes
them to leave by targeting particular groups or communities;
b) large scale movements as a side-effect of armed conflict;
c) enforced displacement resulting from a refusal to permit the return of persons in
categories a) and b).
It should be stressed that the creation of barriers to return has the clear effect of endorsing,
and perpetuating, the initial policy of forcible mass transfer.
101 Ibid, at p. 14.
102 Failing agreement and the entry of Cyprus as a federated state, EU laws will apply only to the
territory of the Republic of Cyprus, to be extended to the Turkish-controlled north of the
island after reunification. The Guardian, 11 March 2003.
103 Ibid. Shortly after Cyprus entry into the European Union however, in what was seen as
something of a surprise move, Turkish Cypriot leader Rauf Denktash announced the easing
of travel restrictions and hundreds of Cypriots flowed north and south over the U.N.-patrolled
Green Line. Angelique Chrisafis reports Greek Cypriots clutching branches of trees on
their return from visiting houses they had not seen for thirty years. . . The Guardian, 3 May
2003. Chrisafis reported the wave of fraternization as not free of misunderstandings: One
Turkish Cypriot woman reportedly died of a heart attack when Greek Cypriots visited her
house saying it was theirs. They were only there to gather plant cuttings, but she feared she
would be made homeless. Two Greek Cypriots are due in court after assaulting a Turkish
Cypriot family for knocking on their door for the same reason.
104 The Economist, 8 March 2003 reported that some 70,000 people (nearly half the Norths
population) demonstrated in favour of EU entry.
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107
Bosnia and Herzogovina, and Israel-Palestine, Bell observes that a superficial
glance at the human rights provisions would suggest (rather superficially)
that the more internal a deal, the greater its human rights sophistication; and
the more international, the less human-rights-friendly it is.
105
She puts this
apparent inverse relationship between international involvement and effective
human rights provision down to the pressures and motivations that are driving
the need for a deal, and thus the extent to which shared interests perceived
by the parties to the deal can be assisted through the language and content of
human rights. She also notes, however, that there is an explanation in:
. . . the more mundane but related question of who was at the negotiations. Internally
mediated processes tend to have mechanisms for including civil society, while
internationally mediated processes working out of traditional international relations
and violence-focused paradigms do not. Internally driven processes by their nature
must preserve the link between politicians and their constituents. Internationally
facilitated processes often focus on bringing together those who have directly waged
the war, often in secret and isolated locations, while the skills of those who have
waged peace [. . .] are left at home.
106
This observation underlines the importance of inclusion. At the current time,
recognition of the right to return (as a right) for Palestinian refugees appears
to be posited, in the realistic (or realist?) language of the road map, as
impractical, to return to the assumptions of the al-Badil seminar. In the
positions articulated by Ariel Sharon cited at the beginning of this article, and
apparently across a broader constituency in Israel, it is treated as a political
non-starter. Unsurprisingly, the perspectives of the Palestinian refugees appear
not to coincide with this approach; and the law is on their side. The U.S.
international lawyer Professor Richard Falk addresses this in his Preface to
the Right of Return Report published by the Joint Parliamentary Middle East
Councils Commission of Enquiry Palestinian Refugees, a British report based
on and largely constituted of the testimonies of Palestinian refugees in camps
in different countries of the Middle East. His contextual remarks are worth
citing in full:
As the testimonies in this moving report make vividly clear, the refugee consciousness
is unified behind the idea that a right of return, as guaranteed by the United Nations
and by international law, is indispensable to any prospect of reconciliation between
the two peoples who have been for so long at war with one another. Once this right
is acknowledged by Israel in a manner that includes an apology for a cruel dynamic
of dispossession in 1948, Palestinian refugees seem consistently prepared to adapt to
the intervening realties, including the existence of Israel as a sovereign, legitimate
state. But to pretend that peace and reconciliation can proceed behind the backs of
the refugees is to perpetuate a cruel hoax, inevitably leading to a vicious cycle of
false expectations and shattered hopes. The collapse of the Oslo process is an occasion
105 Bell, supra n. 3, 231.
106 Loc cit. For a feminist critique of various areas of the theory and practice of international law
relevant to the Israel-Palestine peace process, see Hilary Charlesworth and Christine Chinkin,
The Boundaries of International Law: a feminist analysis (Manchester: Manchester University
Press, 2000), especially Chapters 5 (The idea of the state), 8 (The use of force in international
law) and 9 (Peaceful settlement of disputes).
108
for grave concern about the future, but also a moment that encourages reflection
about what went wrong and why.
The clarity of international law and morality, as pertaining to Palestinian refugees,
is beyond any serious question. It needs to be appreciated that the obstacles to
implementation are exclusively political the resistance of Israel, and the unwillingness
of the international community, especially the Western liberal democracies, to exert
significant pressure in support of these Palestinian refugee rights. It is important to
grasp the depth of Israeli resistance, which is formulated in apocalyptic language by
those in the mainstream, and even by those who situate themselves within the
dwindling Israeli peace camp. On a recent visit to Jerusalem, I heard Israelis say over
and again that it would be suicide for Israel to admit a Palestinian right of return,
that no country could be expected to do that. A perceptive Israeli intellectual told
me that the reason Israel was uncomfortable with any mention of human rights was
that it inevitably led to the refugee issue, with a legal and moral logic that generated
an unacceptable political outcome. How to overcome this abyss is a challenge that
should haunt the political imagination of all those genuinely committed to finding
a just and sustainable reconciliation between Israel and Palestine.
107
Although the future of the Road Map is unclear, it remains the case that at
least for the moment there is a rush of events to redefine relations also in
the Middle East. Looking back on another rush of events after the end of the
1991 Gulf war, producing first Madrid and then Oslo, Palestinian lawyer, human
rights activist and writer Raja Shehadeh speaks of the development of a
Palestinian legal narrative through the efforts of civil society actors, where
legal narrative is the way a people tell the story of their right to a land using
the symbolic language of law.
108
It has to have consistency and its own internal
logic, and the preservation and development of such a narrative, he tells us,
is no minor matter. Despite the clear challenges and dangers of the present
time, activities and initiatives in seminars such as these are part of and
contribute to that process, preserving and developing the Palestinian legal
narrative with a specific focus on the refugees. And again despite the clear
challenges and dangers, at the present time there is arguably more space for
and more resonance, internationally (or rather, perhaps, in the civil societies
of powerful third party states), with the story told by a legal narrative, now
that wider constituencies have been taking moral and political positions on
the basis of closely argued statements of international law. Everybody who was
in a European or North American state in the lead up to and during the war
on Iraq will have their own examples of what appears to be unprecedented
public attention to arguments on international law over recent months. In
Britain, by way of example, the government was obliged under parliamentary
and public pressure to disclose the legal advice of its Attorney-General, in a
startling breach of convention aimed at ending speculation that he was being
ignored,
109
and arguably in at least partial response to a letter from international
107 Richard Falk, Preface in Joint Parliamentary Middle East Councils, supra n. 75, pp. 6-8, at 6.
108 Raja Shehadeh, supra n. 3, 160. See his consideration of the Palestinian and Israeli legal
narratives in The Weight of Legal History: Constraints and Hopes in the Search for a
Sovereign Legal Language, in Eugene Cotran and Chibli Mallat (eds), The Arab-Israeli Accords:
Legal Perspectives (The Hague: Kluwer Law International, 1996), pp. 3-44.
109 Michael White, Publish advice on legality of war, opposition urges No 10, The Guardian, 13
March 2003; and Gaby Hinsliff, Attorney General backs Blair, The Guardian, 16 March 2003.
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109
law academics, and subsequent media coverage and debates.
110
The conclusions
of the longest serving Member of Parliament, Tam Dalyell, on British backing
for the war on Iraq without proper U.N. authorisation, were published in an
article entitled Blair, the war criminal;
111
and more quietly, the deputy legal
adviser at the Foreign Office resigned.
112
While this attention to the law did
not produce an immediate change in policy, exponents of realpolitik would
acknowledge its potential impact in the medium term. And beyond the
decision-makers, international law has an immediacy and an audience that
makes space for the legal narrative. The legal narrative speaks to justice, and
its (re) establishment as a discourse of immediacy and relevance, invested
with practical meaning, is one approach to the almost complete divorce
between the concept of peace and the concept of justice that Bell observes
in the text and implementation of the Israeli-Palestinian peace agreements so
far concluded.
113
As for participation and inclusion, Nabulsi and Papp observe that it
is a profound failing of political imagination to believe that democracy
is a dangerous tool when confronting the issue of five million Palestinian
refugees.
114
If the rights of Palestinian refugees continue to provoke
constructed juxtapositions such as law/politics, peace/justice, idealism/
realism, among the options for developing a third way, if one is to be sought,
is surely the principled and pragmatic option of effective involvement of the
refugees in the debate and in the design of the peace.
110 Letter from Profs. Bernitz, Lowe, Chinkin, Sands et al., The Guardian, 7 March 2003; and
front page article the same day, Academic lawyers round on PM. There were of course
other opinions among academic lawyers; in a later letter to The Guardian, a Labour MP
referred to what is now described in legal terms as the Greenwood defence, in reference to
Professor Christopher Greenwoods legal arguments in favour of the government position,
and, according to the newspaper, assistance to the Attorney-General in the drafting of his
opinion. Letter from Brian Sedgemore MP published in The Guardian, 14 April 2003, and
Richard Norton-Taylor, Law unto themselves in the same edition; and Making the Case:
Opinions show a Clear Divide The Guardian 18 March 2003.
111 Tam Dalyell, Blair, the war criminal, The Guardian, 27 March 2003.
112 Ewen MacAskill, Adviser quits Foreign Office over legality of war, The Guardian, 22 March
2003.
113 Bell, supra n. 3, 203; see above n. 28 and accompanying text.
114 Nabulsi and Papp, supra n. 55.
110
Sectarianism and the Rejection of Tawteen:
Lebanon and the Palestinian Refugees
Nur Masalha*
Lebanons sectarian system
Lebanon is one of the four main regions with Palestinian refugee
concentrations (the other three are Jordan, Syria and the occupied territories).
The Palestinian refugees in Lebanon represent the second largest community
of the Palestinian diaspora. The historic importance of the Palestinian
community in Lebanon is based on its size; its tradition of political activism
and support for the Palestinian national movement up to 1982; its creative
participation in the intellectual life of both Lebanon and the wider Arab world;
and its geopolitical proximity to, and connectedness with, Galilee/Israel/
Palestine.
1
Almost all of Lebanons refugees came from the Galilee region in
northern Palestine. A survey of refugee camps in Lebanon in 1991 found that
between one-third and one half said they had relatives in Israel; few had family
members living in the occupied territories.
2
The influx of Palestinian refugees in 1948 potentially posed more severe
problems in Lebanon than any other Arab host country. Historically,
sectarianism and the free market economy characteristic of the Lebanese
system gave birth to two contradictory trends in Lebanese policy towards the
Palestinian refugees. After 1948, Lebanese governments officially and
consistently refused to integrate the Palestinian refugees in Lebanon while at
the same they encouraged a free market economy in which Palestinian
businessmen and middle-class wealthy people prospered. In the post-1948
period, the Lebanese regime also allowed some Palestinian refugees, especially
Christian refugees, to obtain Lebanese citizenship and Lebanese passports.
3
* Senior Lecturer and Director of Holy Land Studies, St. Marys College, University of Surrey.
1 Rosemary Sayigh, Palestinians in Lebanon: (Dis)solution of the Refugee Problem, Race &
Class 37, No. 2 (October-December 1995), p. 27.
2 Basma Kodmani-Darwish, The Palestinian Question: A Fragmented Solution for a Dispersed People
(PhD dissertation, Institute dEtudes Politique, Paris, 1994).
3 Abbas Shiblak, The League of Arab States and Palestinian Refugees Residency Rights,
Monograph No. 11, The Palestinian Diaspora and Refugee Centre (SHAML), December 1998
at: www.shaml.org/publications/monos/mono11.htm (accessed on 7 August 2003).
111
On the whole, however, Lebanese government policy towards the Palestinian
refugees was shaped to a large degree by the fragile sectarian balance in the
country,
4
on the one hand, and the fact that the refugees constituted a relatively
high proportion within the Lebanese population as a whole (constituting 10-
12 per cent of the population
5
), on the other. In 1950 the roster of the U.N.
Relief and Works Agency for Palestine Refugees (UNRWA) included 127,600
refugees in Lebanon.
6
The Lebanese authorities tend to deliberately over-
estimate the size of the Palestinians at 500,000, in order:
(a) to show that it was shouldering a large responsibility; and
(b) to emphasise that Palestinian tawteen (implantation or resettlement) in
Lebanon would radically transform the delicate sectarian balance in
the country. In 1994, Minister of Higher Education Michel Eddeh even
put the total number of Palestinians at 600,000 (almost double the real
number) adding: Lebanon absolutely refuses the implantation of
Palestinians on its territory because this risks the partition of the
country.
7
In 1999, the country hosted 370,144 Palestinian refugees registered with
UNRWA and with the Department of General Security and Refugee Affairs
and who are legally and technically given special travel documents. In addition
to UNRWA registered refugees, another 42,000 unregistered Palestinians live
in Lebanon, and because about 22,000 of these trace their exile to the 1967
war, they fall outside the UNRWA definition; they are technically illegal in the
country and are generally denied government services. Another 20,000 are
considered to be of Lebanese origin, but identify themselves as Palestinians.
8
Since 1948, an estimated 50,000 Palestinian Christians and a much smaller
number of affluent Sunni Muslim Palestinians and Shiites from border villages
have received Lebanese citizenship, partly with sectarian considerations in
the forefront, because Christian and Muslim Sunni and Shiite officials each
sought middle-class Palestinian co-religionists to shift the sectarian balance.
9
However, there is no doubt that these Palestinians of the middle class (non-
refugee population) became integrated into the economic and social life of
4 Yezid Sayigh, Armed Struggle and the Search for State: The Palestinian National Movement, 1949-
1993 (Oxford: Clarendon Press, 1997), p.39.
5 Farid El Khazen, Permanent Settlement of Palestinians in Lebanon, Recipe for Conflict,
Journal of Refugee Studies 10, No. 3 (1997), pp. 280-281.
6 UNRWA, Report to the Commissioner General of the United Nations Relief and Works Agency for Palestine
Refugees in the Near East, 46th General Assembly, Supplement, No. 13 (A/46/13), (New York:
United Nations, 1991), p. 32.
7 See interview in LOrient Le Jour (1 September 1994).
8 U.S. Committee for Refugees, Country Reports: Lebanon (available at: www.refugees.org/world/
countryrpt/mideast/lebanon.htm); Lex Takkenberg, The Status of Palestinian Refugees in
International Law (Oxford: Clarendon Press, 1998); Khalid Muhammad al-Azar, Guarantees of
Refugee Rights and Current Political Settlement (Mimeographed, 1995) (Arabic); Elia Zuerik,
Palestinian Refugees and the Peace Process (Washington, DC: Institute for Palestine Studies, 1996),
p. 33.
9 Yezid Sayigh, Armed Struggle and the Search for State, p. 40; Julie Peteet, Lebanon Palestinian Refugees
in the Post-War Period (December 1997), Writenet Country Papers, p.8 (available at:
www.unhcr.ch/refworld/country/writenet/wrilbn.hmt); Abbas Shiblak, Residency Status and
Civil Rights of Palestinian Refugees in Arab Countries, p. 3 (Ramallah: Shaml Publications) at:
www.shaml.org/publications/monos/mono1.htm.
Sectarianism and the Rejection of Tawteen
112
Lebanon and by all account contributed to the countrys impressive growth
and prosperity during the 1950s and 1960s.
10
However, the majority of the
close to 370,000 Palestinians in Lebanon registered with UNRWA remain
stateless and their future highly uncertain.
11
The evolution of the relationship between the Lebanese state and the
refugees in Lebanon can be divided into four distinct periods: dispossession
and adaptation (1948-1967); ascendancy of the PLO in Lebanon (1967-1982);
the sharp decline of the PLO (1982-1991); and since the end of the civil war
in 1991, a period which has been characterised by not only a decline of PLO
interests in Lebanon, but by almost complete disengagement.
Lebanon is a highly sectarian country, divided between its various Christian
and Muslim communities. Given Lebanons delicate confessional balance
between Muslims and Christians, which had been worked out in 1943 as the
basis of formal inter-communal political relations (the National Pact)
12
and
given Lebanons already high population density, limited natural resources,
and limited absorptive capacity, the influx of such relatively large number of
Palestinian refugees into the country and the prospect of their extended
presence alarmed many Lebanese.
13
In fact among the Arab host states,
Lebanon imposed the most severe restrictions on the refugees, despite initial
statements assuring them of welcome no matter what their number nor how
long their stay.
14
In the 1950s, Lebanon requested the UNRWA to assume responsibility
towards the refugees. In total contrast to Jordan (which has adopted inclusionist
policies towards the refugees), Lebanon has been unique in its stringent
exclusionist policies towards the refugees.
15
A haphazard and constantly
changing mix of ministerial decrees and departmental regulations were
imposed on the Palestinians, limiting their places of residence, freedom of
travel in certain parts of the country and abroad, categories of private
employment, and licence to own property and conduct business. From 1951,
the Palestinians were treated as foreigners with regard to employment,
investment, land-ownership and the practice of white-collar professions. The
decision to establish the Department of Refugee Affairs, as part of the Interior
Ministry, in 1959 reinforced the view that the Lebanese state considered the
presence of Palestinians an interior security problem that had to be carefully
regulated and controlled.
16
Although the decision helped to centralise the
control of refugees, it had only a marginal effect on the regulations actually
10 Michael Hudson, Palestinians and Lebanon: The Common Story, Journal of Refugee Studies
10, No. 3 (1997), pp. 246 and 249.
11 Suhayl al-Natur, Awda al-Shab al-Filastini fi Lubnan [Conditions of the Palestinian People in Lebanon]
(Beirut: Dar al-Taqadum al-Arabi, 1993) (Arabic).
12 Kamal Salibi, A House of Many Mansions: The History of Lebanon Reconsidered (London, 1988),
pp. 185-186.
13 Laurie Brand, Palestinians in the Arab World: Institution Building and the Search for State (New
York: Columbia University Press, 1988), pp. 233-234.
14 Cited in Yezid Sayigh, Armed Struggle and the Search for State, p. 39.
15 Zureik, The Palestinian Refugees and the Peace Process, p. 33.
16 Nasri Saleh Hajjaj, Palestinian Refugees in Lebanon: Until When? (Ramallah, Shaml Publications,
July 2000), p. 3 at: www.shaml.org/publications/monos/mono_refugees_in_lebanon.
htm.
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113
in force, which remained haphazard and arbitrary.
17
In terms of according
amenities and privileges to the refugees Lebanon has always been at the
opposite end of the spectrum to Jordan, with the refugees denied all the legal
benefits granted to permanent residents and citizens in the country.
18
Moreover, since 1948 Lebanon has been the most consistent Arab host state
in rejecting reintegration and resettlement schemes. While Jordan in the early
1950s approved in principle UNRWAs reintegration and resettlement projects
and began negotiating with the agency on implementation, Lebanon not only
feared the political implications of a programme which might appear to the
refugees to involve permanent settlement away from Palestine, but opposed
any measures which might even remotely give the appearance of conveying
the impression of permanent settlement.
19
Lebanon is the only Arab country
whose constitution explicitly forbids the permanent integration of the
Palestinians in the country. This rejection of permanent settlement has led
Lebanons government to oppose all policies and actions that could be
construed as facilitating or accepting Palestinian integration.
20
Lebanon is a multi-confessional country with 17 officially recognised sects.
21
Its sectarian democracy (i.e. confessionalism) is a system of representation
based on the separate and unequal power of diverse sects whose sole basis of
identification remained religion. Maintaining the delicate sectarian balance
and the political status quo in the country has always been central to Lebanese
state ideology. And, by all accounts, the deeply divided nature of Lebanons
society and its sectarian political system have been the most crucial factors
determining Lebanese attitudes towards the Palestinian refugees. National
unity in Lebanon was, and remains, a fragile construct, owing to politicised
sectarian consciousness among the Lebanese
22
and the Lebanese government
regarded the Palestinian presence, which constitutes 10 to 12 per cent of the
total population, as threatening to undermine the delicate confessional balance
as well as the dominant ruling class.
23
Historically the divide between Christians
and Muslims, entrenched by colonial French involvement, created a certain
schizophrenia and confusion regarding the Palestinian refugee issue, with
conflicting attitudes and policies found in pubic opinion and governmental
policy. The majority of Christians are Maronites, but there exist within Lebanon
substantial minorities of Greek Orthodox and Greek Catholic, Armenian
Orthodox, Chaldeans and Syriac Christians. For many of the Maronites, who
generally looking towards the West, the Palestinian refugee question was viewed
as a Trojan horse that might justify the permanent presence of hundreds of
17 Yezid Sayigh, Armed Struggle and the Search for State, p. 39.
18 Salim Tamari, Palestinian Refugee Negotiations (Washington, DC: Institute for Palestine Studies,
1996), p. 42.
19 Benjamin Schiff, Refugees unto the Third Generation (New York: Syracuse University Press, 1995),
p. 41.
20 U.S. Committee for Refugees, Country Reports: Lebanon at: www.refugees.org/world/countryrpt/
mideast/lebanon.htm.
21 Peteet, Lebanon Palestinian Refugees in the Post-War Period, p. 3.
22 Yezid Sayigh, Armed Struggle and the Search for State, p. 39; Brand, Palestinians in the Arab World,
pp. 233-234.
23 Hajjaj, Palestinian Refugees in Lebanon, p. 3.
114
thousands of mainly Muslim Palestinian refugees,
24
and destabilise the fragile
politico-sectarian balance between the religious communities.
25
Furthermore, there were other sectarian divisions within the Christian and
Muslim populations. The two communities most hostile to the Palestinian
presence were the Maronite Christians and (to a lesser extent) the Shiite
Muslims; the political leadership of both communities were most concerned
to preserve the Lebanese sectarian system.
26
Political Maronitism was always
wary of Arab nationalist, Sunni Muslim and Palestinian intentions. Political
Shiism was also keen to preserve Lebanons sectarian system. The rise to
power within the Lebanese state of a particular leadership of the Shiites made
their community hostile to any factor that might disturb the (new) sectarian
status quo.
27
Among the Palestinians, however, although the overwhelming
majority were Sunni Muslims, there were no comparable sectarian and vertical
divisions.
28
To the Lebanese Christian nationalists in particular, the Palestinian
refugees were more of a threat than a sacred Arab cause. Other Christian
nationalists (especially Maronites, including President Camile Chamoun, 1952-
1958), who viewed the refugees as agents of pan-Arabism and a fifth column,
came to view the Palestinians in general as part and parcel of a Soviet-sponsored
pan-Arab nationalist threat to Lebanons very existence.
29
Some important
Christian leaders strongly sympathised with the Zionist cause.
30
The Palestinian
Christians, on the other hand, were better treated and had a more privileged
experience in Lebanon than their Muslim compatriots, largely because the
Lebanese perspective on the Palestinian refugees had been formed by sectarian
divisions.
31
Another factor which appeared to have influenced Lebanons generally
hostile attitude towards the refugees is the failure of Lebanon to develop
solid, legitimate and strong national institutions. The Lebanese were, and
remain, deeply divided among themselves on many important issues, none
more so than the Palestinian question. The failure to establish a more coherent
system of government, and a stronger and more democratic state in Lebanon,
have had a deep impact on Lebanons deteriorating relationship with the
refugees.
32
Lebanon generally attempted to quarantine the Palestinians politically
and made it extremely difficult for them to obtain employment, fearing that
it might lead them to remain in the country.
33
As Don Peretz has observed,
24 Hudson, Palestinians and Lebanon: The Common Story, p. 247.
25 W. Phares, Lebanese Christian Nationalism: The Rise and Fall of an Ethnic Resistance (Boulder, CO:
Lynne Rienner Publishers, 1995), p. 103.
26 Rosemary Sayigh, Palestinians in Lebanon, pp. 34-35.
27 Ibid.
29 Ibid, p. 246.
30 A secret pact had been signed between the Zionist leadership and the Maronite Christian
patriarch in 1946 and endorsed by President Emile Eddeh, who met Zionist leader Weizmann
in 1937. Yezid Sayigh, Armed Struggle and the Search for State, p. 13.
32 Ibid, pp. 247-248.
33 Ibid, pp. 249-250.
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115
Lebanon was the host country least hospitable to Palestine refugees . . . Palestinians,
constituting about 10 per cent of the total population, were viewed by the Lebanese
establishment as a threat to internal political and social stability . . . refugees . . . were
often exploited as cheap labor during periods when Lebanons economy was
booming.
34
Official Lebanese policies effectively reinforced ghettoisation tendencies
among the Palestinian refugees, who were mostly of peasant background and
who like most peasants tended to conduct as much of their lives as possible
within their villages, now replaced by refugee camps in which UNRWA, rather
than the Lebanese government, provided virtually all basic services and a
significant number of jobs.
35
Furthermore, Lebanon refused to allocate more
land for the refugee areas, so as the camps population rose, refugee camps in
the country grew in density rather than size.
36
The refugees themselves, on
the other hand, did not attempt to improve their living conditions in the
camps, because they viewed the camps as temporary places of residence. Camp-
dwelling Palestinians in particular did not mix with Lebanese society. Both
Lebanese society in general and the government in particular not only rejected
the refugees but were also extremely wary of resettlement attempts in
Lebanon.
37
In August 1966, Lebanon sent a signed memorandum to the Arab League,
expressing its reservations with regards to the basic principles of the Casablanca
Protocol on Palestinian refugees, which had been formulated by the Arab
League. The Protocol had given Palestinian refugees civil, economic and social
rights in member states of the Arab League. Clearly, the negation of the basic
principles of the Protocol by the Lebanese government was carried out in
spite of the fact that Lebanon was among the Arab states that had initially
endorsed the Protocol. But the basic tenets of Lebanese policy towards the
refugees were fairly consistent: the refugees were looked upon as foreigners;
they were deprived of the most basic civil rights; had restrictions imposed on
their rights of ownership and residency; and faced discrimination in
employment and education.
38
For over half a century, the official Lebanese position has been to deny the
possibility of a permanent resettlement of the refugees based on Lebanons
small size and resource base and precarious sectarian composition.
39
Under
no circumstances would Lebanon give the Palestinian refugees the type of
citizenship they enjoy in Jordan. In fact, one of the few things that most
Lebanese politicians agree on, is that the Palestinians should leave the country.
Public policy towards the refugees is reflected in statements such as that
made in the mid-1990s by Lebanese Labour Minister Abdullah al-Amin: The
34 Don Peretz, Palestinian Refugees and the Middle East Peace Process (Washington, DC: U.S. Institute
for Peace, 1993), p. 61.
35 Yezid Sayigh, Armed Struggle and the Search for State, p. 47.
36 Schiff, Refugees unto the Third Generation, p. 49.
38 Abbas Shiblak, The League of Arab States and Palestinian Refugees Residency Rights,
Monograph No. 11, The Palestinian Diaspora and Refugee Centre (SHAML), December 1998
at: www.shaml.org/publications/monos/mono11.htm (accessed on 7 August, 2003).
116
talk about settling the Palestinians in Lebanon does not concern us in any
way. We say that the Palestinians must return to Palestine, as we are unable to
absorb or settle anyone.
40
A year earlier, in 1994, shortly after the Oslo
agreement was signed between the PLO and Israel on Palestinian autonomy
in Gaza and Jericho, Prime Minister Rafiq al-Hariri stated that granting the
Palestinians in Lebanon civil rights might be construed as a sign that that
Lebanon had agreed to their resettlement in the country. Economically, Hariri
added, Lebanon was unable to absorb Palestinian professionals.
41
Apparently,
Hariri viewed the Beirut refugee camps as the main obstacle to the rebuilding
of the Lebanese capital. In the mid-1990s, he told a Palestinian delegation
that they and their camps would eventually have to be removed as part of
Beiruts beautification plans.
42
In a similar vein the then President Elias Hrawi
has declared that since the Palestinians now have their own territory, Lebanon
cannot accept permanent resettlement of the refugees.
43
Echoing the same mindset, in April 1994 Foreign Minister Faris Buwayz
proposed to redistribute the Palestinians outside Lebanon as follows: 20 per
cent to (an already overpopulated) Gaza and Jericho; another 25 per cent to
join their families wherever these might be located; and the rest to countries
with space for immigrants.
44
A year later, a government official was quoted as
describing Palestinian refugees as human garbage.
45
Exclusionism, UNRWAs role and the impact on the social and economic
conditions of the refugee camps
Since 1948, Lebanese policies towards the Palestinian refugees have fluctuated
sharply, depending on the countrys domestic and regional circumstances.
Although in the post-1948 period the countrys liberalised economy provided
a suitable base for Palestinian businessmen and middle-class professionals to
prosper, in recent decades the Lebanese state has pursued blatantly
discriminatory policies towards the refugees with a disastrous impact on their
social and living conditions. Although initially in the period between 1948
and 1951, the Lebanese government did offer the refugees some material
and moral support, it was basically UNRWA, rather than the Lebanese
government, which provided virtually all basic services and an appreciable
number of jobs. From 1951 onwards, official Lebanese treatment of the
refugees continued to deteriorate. Since then, refugees have been effectively
treated as foreigners, particularly in matters related to employment. Unlike
40 Investigative Report by N. Abdul-Samed, in Al-Majalla (London), 9-15 April 1995 (Arabic).
42 Stephen Sosebee, How Israel Can Solve the Problem of Palestinian Refugees in Lebanon,
The Washington Report (July-August 1995) at: www.washington-report.org/backissues/0795/
9507016.htm.
44 Rosemary Sayigh, An Uncertain Future for the Palestinians in Lebanon, Middle East Inter-
national, 13 May 1994, pp. 19-21; Stephen Sosebee, How Israel Can Solve the Problem of
Palestinian Refugees in Lebanon.
45 Human Garbage, in Shaml Newsletter, Nos. 6 and 7 (December 1995), (Palestinian Diaspora
and Refugee Centre, Ramallah).
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117
Palestinian refugees in Syria and Jordan, Palestinians in Lebanon do not have
the right to work. Apparently, more work permits were issued to foreigners
than to Palestinian refugees. Today, Lebanons domestic sectarian agenda
remains the main pretext behind the denial of fundamental civil rights of
Palestinian refugees in the country; the living conditions of the refugees in
Lebanon is not only the worst of any other group in Lebanon; it is worse by
far than that of any other Palestinian refugee community in the Middle East,
including those in Syria, Jordan and Egypt.
46
In Lebanon, international relief and assistance programmes to the refugees
have often been politically volatile. From the 1950s onwards, the politics of
this international aid has been closely linked to UNRWA and its vital role in
the camps. Since then Lebanon like all host states has wanted international
assistance to the refugees to continue, partly because the agency has brought
useful resources into the country (in the 1990s UNRWA contributed close to
$30 million to the Lebanese economy annually
47
), and partly in order to avoid
refugee discontent. Pressuring UNRWA for more relief was also a low-cost way
for the governments to demonstrate solidarity with the refugees. In Lebanon
like in Syria the government sought to prevent political problems and
benefited from the hard currency that UNRWA brought into the local
economy.
48
The Lebanese authorities were happy for UNRWA to provide much-
needed financial and economic assistance to the refugees in Lebanon. The
government policies of excluding Palestinians from the state bureaucracy,
public services and skilled employment in the country has made the role of
UNRWA essential, especially for the residents of the camps. UNRWAs
importance lies in its wide range of functions and services: relief aid, education
and schooling, primary health care, housing, hygienic and infrastructural
services in the camps, employment and a measure of protection for the camps
residents. UNRWA also provides a framework for the Palestinian intelligentsia
to work for their own community and speaks for the refugees in local and
international fora.
49
Today, however, UNRWAs registered refugees qualifying as hardship cases
in Lebanon are the highest in any of UNRWAs areas throughout the Middle
East. Although UNRWA continues to offer the only tangible assistance to
refugees in Lebanon, reductions in its budgets, restrictions imposed by the
Lebanese authorities and redirecting of international aid towards the occupied
territories (especially the Gaza Strip) and away from the external refugees
have all contributed to a sharp deterioration in the living conditions of the
refugees in Lebanon.
50
With Lebanese restrictions on employment and the
denial of access to public education, Lebanese health care and social services,
the refugees are almost totally dependent on outside aid. The refugees will
46 Zureik, The Palestinian Refugees and the Peace Process, pp. 37-39.
47 Al-Natur, Awda al-Shab al-Filastini fi Lubnan.
48 Schiff, Refugees unto the Third Generation, p. 52.
49 Rosemary Sayigh, Palestinians in Lebanon, p. 28.
50 Rosemary Sayigh, The Palestinians in Lebanon: Harsh Present, Uncertain Future, Journal of
Palestine Studies 25, No.1 (1995), pp. 18-27; Zureik, The Palestinian Refugees and the Peace Process,
p. 39.
118
also continue to feel the effects of cuts in international assistance.
51
But with
the eclipse since 1993 of the PLO by the Palestinian Authority whose main
interests lie in the West Bank and Gaza UNRWAs role in refugee camps, as
a minimal source of services and representation, has never more crucial.
52
The post-1967 period: the creation of autonomous institutions by the
refugees and direct conflict with the host state
In the 1960s, the Lebanese authorities cracked down ruthlessly on the nascent
Palestinian resistance activity against Israel and the refugees were initially
impoverished and unable to develop a leadership capable of addressing their
aspirations and needs.
53
Yet in 1970, when tens of thousands of Lebanese
guerrillas fled from King Husseins army into Lebanon, the political balance
in Lebanon changed profoundly, the refugee camps becoming the sites of
increasing political mobilisation and activity. Eventually the PLO transferred
headquarters and military operations to Lebanon. Filling the vacuum left by
the defeat of Arab armies at the hands of Israel in 1967, the Palestinian
resistance movement was rising fast in popularity and power.
Moreover, the rising Palestinian nationalism and the fedayeen guerrilla
operations against Israel in the post-1967 period was bound to lead to direct
conflict between the host government in Lebanon and the refugee community
which sought to create separate institutions in the country. Palestinian activism,
national militancy and military organisation deeply affected the refugee camps
in Lebanon. Palestinian refugee discontent in Lebanon (like that in Jordan
between 1967 and 1971), became sharply manifest in the post-1967 period.
Anger against the Arab states impotence and the shattering military defeat
of the PLO in 1967 meant that guerrilla organisations found strong support
in Lebanons refugee camps and began launching guerrilla attacks against
Israeli targets from bases in south Lebanon in an effort to reassert Palestinian
determination to recover their homeland. The emergence of the Palestinian
resistance as an alternative movement of struggle contributed significantly
for them to the mood of defiance among the refugees and provided an
opportunity to free themselves from the severe restrictions imposed on them
by the Lebanese authorities. The Lebanese state found it difficult in general
to maintain its hardline policies towards the Palestinians.
54
The attitudes of the Lebanese state towards the Palestinian refugee issue in
general, and the Palestinian refugee community in Lebanon in particular,
was deeply affected by the interplay between Lebanese domestic and regional
Arab politics. The historically fragile Lebanese state, weak with the episodic
51 Supra, n. 20.
52 Rosemary Sayigh, Palestinians in Lebanon, p. 28.
53 N. Kabbara, Shehabism in Lebanon, 1958-1970: The Failure of a Hegemonic Project (PhD dissertation,
Department of Government, University of Essex, 1988), p. 300; Peteet, Lebanon Palestinian
Refugees in the Post-War Period.
Articles
119
flaring-up of domestic and sectarian conflict, have all affected government
attitudes towards the refugee community. The fundamental issue underlying
current Lebanese bitterness towards the Palestinian refugees is the extent to
which the rise of the Palestinian resistance in the early 1970s contributed to
the collapse of the fragile Lebanese sectarian polity and the ensuing bloody
civil war.
55
The Palestinians, of all the parties in the country, have received
more than their share of blame for domestic upheavals. Certain sectors of
Lebanese society, including the right-wing Lebanese groups, which were
unsympathetic to the Palestinian plight, blamed the foreign Palestinian
presence for instigating a 17-year civil war and the breakdown of the Lebanese
state.
56
In his recent work, The Breakdown of the State of Lebanon, 1967-1976,
Lebanese political scientist Farid el-Khazin maintains that Lebanons fate was
determined by the PLOs involvement in Lebanese politics under the umbrella
of Kamal Jumblatts left-wing coalition. Lebanons weak state combined with
its sectarian democracy (i.e. confessionalism), according to el-Khazin,
facilitated such penetration by the Palestinians only to fall victim of it.
57
In Lebanon, where the refugees were treated as a marginal, non-integrated
group and the host government was weak, the refugees tended to create parallel
and separate institutions that catered to their needs.
58
Moreover, because of a
very weak government, rising PLO ascendancy resulted in direct conflict
between the refugee community and the Lebanese authorities. In the 1970s,
the PLO wielded a considerable influence and authority within Lebanon. The
event that defined the Palestinian ascendancy in Lebanon was the Cairo
Agreement of November 1969, signed in secret between the commander of
the Lebanese army and the chairman of the PLO, Yasir Arafat. Although no
domestic legislation was enacted by the Lebanese state to ensure the
implementation of the Cairo Agreement, the agreement gave Palestinians
residing in Lebanon the right to employment as well as to freedom of
movement; it gave them autonomy in running their own affairs; effectively
legitimised the Palestinian armed presence in Lebanon, giving the PLO free
rein in refugee areas, while the Lebanese army would still control the border
with Israel and would limit Palestinian guerrilla operations. In reality the PLO
had taken over the refugee camps and Lebanese security forces were withdrawn
from the camps. Apparently most of the Palestinian fighters driven out from
Jordan in 1971-1972, a few tens of thousands, fled to Lebanon. The Palestinians
in Lebanon had been a particular target of for harassment by the deuxime
bureau, the Lebanese internal security services. In 1969, as the Palestinian
movement in Lebanon gathered force, refugees in the camps threw the
deuxime bureau and its network of informers out of the camps.
59
The PLO
56 Ahmad Beydoun, The South Lebanon Border Zone: A Local Perspective, Journal of Palestine
Studies 21, No. 3 (1992), p. 52; Wadie Said, The Obligations of Host Countries to Refugees
Under International Law: The Case of Lebanon, in Naseer Aruri (ed), Palestinian Refugees:
The Right of Return (London: Pluto Press, 2001), p. 126.
57 (Cambridge, MA: Harvard University Press, 2000).
58 Brand, Palestinians in the Arab World, p. 234.
59 David McDowall, The Palestinians: The Road to Nationhood (London: Minority Rights Publication,
1994), p. 72.
120
created camp committees to govern refugee affairs and enforced order, and
large tracts of south Lebanon, apart from the refugee camp, came under its
informal control.
In Lebanon, the Palestinian movement initially enjoyed popularity with the
downtrodden, with the large Sunni and Shiite population of Beirut and other
towns, notably those living on low incomes and in slum areas, with their shared
sense of deprivation on the margins in an increasing prosperous society.
60
The PLO efforts to carve out an autonomous base in Lebanon from which to
carry out guerrilla operations against Israel and its alliance with the left-wing
Lebanese camp contributed to the civil war of 1975 and eventually the Israeli
invasion of 1982. The PLOs state within a state further destabilised the
tottering compromises built across inter-communal political, religious and
economic fractures, contributing to Lebanons sliding to civil war. From 1975
onward, the PLO and the Lebanese left battled with right-wing Lebanese
militias as the country descended into long-term civil war. The Israeli invasion
in 1982 and its occupation of half of the country effectively terminated the
Palestinian civil institutions and para-state in Lebanon. The withdrawal of the
PLO left the refugee population exceedingly vulnerable to a variety of Lebanese
militia with explicitly anti-Palestinian sentiments. By the mid-1980s, the camps
were under siege by the Amal militia, supported by Syria. Known as the camp
wars, this three-year period (1985-1988) of intensive conflict caused extensive
damage to the camps and thoroughly traumatised their inhabitants.
61
Between the beginning of the civil war in 1975 and 1991, the refugees were
victims of Lebanons constant civil and inter-sectarian strife. Particularly in
the south of Lebanon, constant Israeli raids and commando attacks against
Palestinian positions destroyed schools and injured students; in the hardest
hit refugee camps of south Lebanon and the Beirut areas, neither refugee
schools nor anything like normal life could proceed. Throughout the Lebanese
civil war, which lasted between 1976 and 1991, with short respites in between,
the refugee camps were badly disrupted and partially destroyed and refugee
schools and other social services were frequently disrupted. According to one
estimate, between 30,000 and 40,000 Palestinians died in Lebanons various
internal wars and the wars between Israel and the Palestinians,
62
most notably
the 1982 invasion of Lebanon, which resulted in the massacres of Sabra and
Shatila camps. Both the Lebanese and Palestinians had one thing in common:
shared victimhood. The two relatively weak and threatened parties banded
together on certain levels at certain times to confront the stronger one (Israel).
But more often than not the Israeli challenge has set the Lebanese and
Palestinians at odds with each other.
63
60 Ibid.
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121
Dis(solving) the refugee problem? Contemporary Lebanese policies
Following the 1982 Israeli invasion of Lebanon and the PLO evacuation of
Lebanon, the situation of the Palestinian refugees changed radically and state
policies towards them hardened considerably. Since the mid-1980s, Lebanons
implicit goal with regard to the refugees has been not only to marginalise
them socially, economically and politically
64
but also (as we shall see below) to
drive them out of the country. In 1987, the Lebanese Parliament during the
regime of President Amin Gemayel, and operating in a period of mass official,
confessional and mass popular hostility towards the Palestinians declared all
provisions of the Cairo Agreement between Lebanon and the PLO, which
regulated Palestinian political activities in the country and the free movement
of refugees, were null and void.
65
The strident official Lebanese hostility to
the Palestinian presence in the country was demonstrated by the coupling of
the abrogation of the Cairo Accords with the annulment of the 17 May 1982
Accord that had been reached between the Lebanese government and Israel,
following Israels invasion of the country, into a single annulment item,
effectively equating the PLO presence in Lebanon with the Israeli occupation.
The participation of Palestinians in resistance to Israel led by Hizbullah was
not officially allowed.
66
Four key components of Lebanese policies were discernable in the post-
Oslo period:
(a) opposition to the Oslo Peace Process;
(b) boycott of the Multilateral Track on refugees;
(c) prevention of Palestinian tawteen and naturalisation; and
(d) thinning out the refugees.
While the rights of the Palestinian refugee and diaspora communities were
undermined by the Oslo Accords, the Palestinians in Lebanon were hardest
hit by the Oslo process and suffered a degree of hardship and insecurity
unparalleled elsewhere. Originating not in the West Bank or the Gaza Strip,
but from the Galilee and the coastal cities of Mandatory Palestine, they were
rejected simultaneously by Lebanon and Israel, with its absolute veto on their
return.
67
In fact since the beginning of the 1990s the refugees have found
their status in the country increasingly tenuous. Lebanon (partly under the
influence of Syrian attitudes) was among the most vocal opponents of the
Israeli-Palestinian accords of September 1993.
Moreover, at least partly in response to the Oslo peace process, Lebanon
reacted by imposing a host of draconian restrictions on resident Palestinians
to prevent their integration and to signal to the international community that
it considers Palestinian refugees to be an international, not a Lebanese,
problem.
68
Throughout the 1990s, Lebanon continued to recover from 17
64 Peteet, Lebanon Palestinian Refugees in the Post-War Period, pp. 7-8.
65 Said, The Obligations of Host Countries to Refugees Under International Law: The Case of
Lebanon, p. 133.
67 Rosemary Sayigh, Palestinians in Lebanon, p. 27
68 Supra, n. 20.
122
years of endemic violence and civil strife, yet two long-standing issues, those
of the political future of the Palestinian refugees and local Palestinian factional
feuding in refugee camps (in addition to conflict with Israel in southern
Lebanon), have all served as flashpoints for increased tensions and direct
conflict between the Lebanese authorities and the refugee population.
Although the political concerns of the Palestinians in Lebanon lay elsewhere
and they remained politically marginalised, it is clear that a substantial sector
of Lebanese political opinion saw those concerns as a threat to Lebanons
integrity.
69
Other practices by the government seem designed to reduce Palestinian
numbers in Lebanon. The government has progressively and severely restricted
the movement of refugees within the country, even those who are registered
with UNRWA and carry valid travel documents. Recently, while Lebanese
government officials informed the U.S. Committee for Refugees that
Palestinians were treated the same as other foreigners, Palestinian refugees
whom the U.S. Committee for Refugees interviewed during visits to Lebanon
in recent years reported widespread and systematic discrimination against
Palestinians.
70
The impact of Lebanese state policies on the economic conditions of the
Palestinian refugees has been devastating. One of the primary points of
contention with the Lebanese authorities is over the issue of the right to work
and employment. Prior to 1982 the PLO, according to one estimate, used to
pump over US$2 billion annually into the economy of Lebanon, and with the
decline and subsequent freeze of this financial flow, the Lebanese government
began to regard the Palestinian refugees as an economic burden.
71
In sharp contrast with Syrian and Jordanian policies towards the refugees,
Palestinians in Lebanon have remained deprived of the most essential civil
and social rights. They are currently denied access to public education,
Lebanese health care and other social services and most Palestinians are unable
to attend Lebanese schools and universities. Designating Palestinian refugees
as foreigners, Lebanese law prohibits them from working in such skilled
professions as medicine, law, and engineering and Palestinian job seekers need
special permits.
72
In addition, due to the influx of Syrian labourers, estimated
to number 100,000 workers, the Lebanese system prohibits the full use of
Palestinian unskilled and cheap labour.
73
The inability to work because of their status as foreigners has reduced the
refugees to abject poverty. The refugees represent the poorest sector in all of
Lebanese society and the poorest grouping of Palestinian refugees in any Arab
country; between 50 and 60 per cent of the refugees are below Lebanons
70 Supra, n. 20.
Lebanon, p. 123; Zureik, The Palestinian Refugees and the Peace Process, p. 34.
Articles
123
poverty line.
74
In 1999, the overall employment rate for Palestinians stood at
40 per cent and at 60 per cent for camp residents, while the camps are
overcrowded and suffer from unsanitary conditions.
75
In his monograph on
Official Policy Towards the Palestinian Refugees in Lebanon, Hussein
Shaaban (a Palestinian-Lebanese scholar who carried out extensive research
on the social and economic conditions of the refugees) has argued that certain
elements of state policies towards the refugees is derived from a racist logic
similar to that held by those forces who had fought the Palestinians and had
carried out massacres against them.
76
Other refugees in Lebanon interpret
these restrictions as a means of making life miserable and pressuring them to
leave the country.
77
Since the beginning of the Oslo process, public statements by Lebanese
leaders have continued to reiterate with increasing frequency Lebanons refusal
to resettle refugees and continue to reject refugee naturalisation. Lebanon
even continued to deny civil rights to its Palestinian population in the belief
that such a step would signal its willingness to naturalise and absorb its
Palestinian refugees; that civil rights are the first step to settling the refugees
permanent in the country; that naturalisation of the refugee would upset the
delicate sectarian balance.
78
These arguments have governed official Lebanese
policy towards the refugees since their arrival in the country and around these
arguments a consensus has been solid since the early 1990s. The overwhelming
majority of Lebanons political parties and citizens have remained steadfastly
opposed to a resettlement of the refugees in Lebanon, or tawteen, a buzzword
for a permanent solution of the refugee issue by resettlement and
naturalisation of the refugees in Lebanon.
79
Yet most sectors of the Lebanese
political spectrum and populace are aware that return, as envisaged by U.N.
Resolution 194, is a remote possibility. It is this realisation that the official
position is untenable in the long run, coupled with the refusal to accept this
untenability that drives the stringently restrictive and punitive conditions
imposed on the refugees.
80
Current treatment of the Palestinian refugees by the Lebanese authorities
contradicts both the will and letter of international law and the Lebanese
government has never been able to provide a rational explanation as to why it
has been unwilling to alleviate Palestinian refugees suffering.
81
Moreover,
given Lebanons deeply ingrained confessional politics and the precedents of
74 Ibid; Peteet, Lebanon Palestinian Refugees in the Post-War Period; Hussein Shaaban, Unemployment
and its Impact on the Palestinian Refugees in Lebanon, Journal of Refugees Studies 10, No. 3
(1997), p. 387.
75 Supra, n. 20.
76 Hussein Shaaban, Official Policy Towards the Palestinian Refugees in Lebanon (London: Palestinian
Return Centre, 2000).
Lebanon, p. 124.
80 Ibid.
Lebanon, pp. 124 and 139.
124
ethnic cleansing in the region (notably against the Palestinians by Israel in
1948, by Kuwait in 1991), the Palestinian refugees in Lebanon (so-called
foreigners) have become more vulnerable to expulsion than ever before.
Imposing punitive restrictions on the refugees, almost unique in its harshness
among neighbouring Arab countries, the refugees are effectively placed under
siege by the government with the aim of reducing their number in the
country.
82
Like Egypt, Lebanon does not grant foreigners full residency status, which
includes either naturalisation or permission to remain indefinitely. Lebanon
issues the Palestinians in the country with special refugee documents, which
do not confer secure residency status on them. In Lebanon, registration with
UNRWA and receipt of UNRWA rations seem to be prerequisites for the
issuance of refugee documents and permission to stay in the country. Those
who lost the right to receive UNRWA rations (some 30,000 to 50,000 persons)
are under constant threat of deportation. Since the early 1980s thousand of
refugees, assumed by the authorities to have acquired residency or nationality
overseas, mainly in Western countries, were taken off the register. In the early
1990s, a diplomatic row broke out between Lebanon and Jordan when Lebanon
started expelling Palestinians to Jordan. New restrictions denying Lebanese
refugee holders entry without a special permit obtained in advance were
imposed in September 1995 in order to keep out 15,000 Palestinians with
Lebanese refugee documents who had been suddenly expelled from Libya by
President Muammar Qaddafi, in a move designed to protest against the
Palestinian-Israeli peace process. Lebanon responded to this crisis by forbidding
all ships originating from the Libyan port of Benghazi from landing in
Lebanon, trapping many refugees along the Libyan-Egyptian border.
83
An
estimated 100,000 Palestinian refugees possessing residency rights in Lebanon
have been forcibly denied entry into the country.
84
In November 1996, Faruq
Qaddumi, head of the PLO Political Department, discussed with Lebanese
officials behind closed doors the question of easing entry and exit of
Palestinians to and from Lebanon,
85
but there was little evidence of any
noticeable change in Lebanese policies in this regard.
In January 1999, the incoming government of President Emile Lahoud
issued new regulations. Although easing stiff travel restrictions on Palestinians,
they still required Palestinians with Lebanese travel documents to apply for
travel permits, which are valid for only six months.
86
Always a reluctant host,
the government is now more intent than ever on containing and marginalising
the refugees in tightly bound watched camps until the Middle East peace
82 Hajjaj, Palestinian Refugees in Lebanon, p. 3; Abbas Shiblak, Residency Status and Civil Rights of
Palestinian Refugees in Arab Countries, p. 3 (Ramallah: Shaml Publications) at: www.shaml.org/
publications/monos/mono1.htm.
83 Shiblak, Residency Status and Civil Rights of Palestinian Refugees in Arab Countries, p. 3; Said, The
Obligations of Host Countries to Refugees Under International Law: The Case of Lebanon,
p. 136.
Lebanon, p. 137.
85 Al-Nahar (Beirut), 18 November 1996.
86 Supra, n. 20.
Articles
125
process determines their fate.
87
In the short term, however, the official policy
objectives towards the refugees are as follows:
(a) reducing their numbers and means of emigration;
(b) redistributing them to other Arab countries;
(c) severing the links between the various Palestinian refugee camps in
Lebanon;
(d) denying them civil rights, including the right to work; and
(e) refusing to publish an official legal and administrative official framework,
with accountability and transparency, which would define in clear terms
the status and rights of Palestinian refugees.
88
This position has been advanced by the Lebanese with increased frequency
and forcefulness throughout the late 1990s, and especially as the Palestinian
Authority and Israel prepared to resume final status negotiations on a
permanent settlement of the Palestinian-Israeli conflict. For example, after
Israeli Prime Minister Ehud Barak said in July 1999 that Israel would not permit
any Palestinian refugees to return to Israel proper and that the refugees should
be settled in their host countries, Lebanese Prime Minister Salim al-Hoss (Prime
Minister 1998-2000) and current President Emile Lahoud repeatedly reiterated
Lebanons rejection of refugee settlement in Lebanon.
89
Many Lebanese have continued to blame Palestinians for a catastrophic
civil war and the collapse of the countrys political balance. They have also
continued to advance traditional arguments against resettlement, with added
frequency: that the naturalisation of Palestinian refugees in Lebanon,
amounting to as much as 12 per cent of Lebanons total population and mostly
Sunni Muslim, would disrupt Lebanons delicate political balance, which is
based on power sharing along sectarian lines.
90
Moreover, since the end of the civil war the Lebanese governments desire
for order in the refugee camps and its determination to prevent Arafats Fateh
faction of the PLO from reasserting control over Lebanons Palestinian refugee
population have been paramount. While the refugees in Lebanon have formed
an important example of the marginalisation of the refugee issue throughout
the Madrid peace process, which was given the PLOs stamp of approval at
Oslo,
91
it is quite possible that Lebanons efforts to prevent pro-Arafat forces
in the refugee camps from regaining control over the refugee population was
also designed to deny the Palestinian Authority vital support for any political
settlement with Israel that did not provide for the right of refugees in Lebanon
to return to their former homes in present-day Israel.
Languishing in Lebanon as unwelcome guests and feeling abandoned by
the PLO (Fateh and Arafat in particular) and completely marginalised, the
Palestinians are embittered and disillusioned at the turn of events. The PLO
had employed as much as 50 per cent of the Palestinian workforce before
Israel forced it to evacuate from Beirut in 1982.
92
Declining after 1982, PLO
87 Peteet, Lebanon Palestinian Refugees in the Post-War Period.
89 Supra, n. 20.
90 Ibid.
91 Rosemary Sayigh, Palestinians in Lebanon: Harsh Present, Uncertain Future, p. 35.
92 Supra, n. 20.
126
financial assistance to them plummeted in the 1990s. The idea of return,
which seemed to them a real possibility throughout the period between 1948
and 1982, has faded, and even the prospect of compensation for refugee land
and property seized seems remote.
93
Throughout the Oslo peace process and until mid-1999, most Palestinians
were opposed to Palestinian Authority president Arafat and the Oslo process,
aligned with Syrian-controlled Ayn El-Hilweh, Lebanons largest refugee camp
located on the outskirts of the southern port city of Sidon and its 60,000
residents. In recent years, Ayn El-Hilweh has become both the epicentre of
intra-Palestinian rivalries and a major theatre of struggle between the
opponents and supporters of Arafat and the Oslo process. In late June 1999,
Lebanons representatives of Arafats Fateh faction deployed 500 fighters
among the refugees and began recruiting and training new fighters in a bid
to retake control of Ayn El-Hilweh. In the autumn of 1999, the Lebanese
government moved against the pro-Arafat forces, and shortly after Arafats
supporters staged a rally in the camp in late October, a Lebanese military
court sentenced Fatehs Lebanon representative, Sultan Abu Alaynen, to death
in absentia, for his alleged role in setting up a new militia in the camp. Three
other high-ranking pro-Arafat Fateh officials were also arrested in late 1999.
94
Arafats critics among the refugees in Lebanon claimed that his bid to regain
control over the refugee population would place him a better position to
weather refugee opposition to likely concessions, including the possibility of
forfeiting Palestinian refugees right of return to territories that became
Israel, for an eventual peace deal with Israel. Using the same logic, some analysts
suggested that Lebanons subsequent efforts to reign in Fateh was a move to
deny Arafat support for any peace deal that does not provide for the right of
refugees in Lebanon to return to their former homes in present-day Israel.
95
The overwhelming majority of the citizens of Lebanon have remained
steadfastly opposed to a permanent resettlement of the refugees in Lebanon.
A representative public opinion survey reflecting the main religious groupings
in the country, conducted in the mid-1990s, found that 75 per cent of the
respondents rejected resettlement in Lebanon; the same proportion rated
the consequences of such resettlement as damaging to the country, leading
to the resumption of the civil war, further economic crises, demographic
imbalance and the creation of an additional sectarian group.
96
A similar
anti-resettlement position was advanced by the Lebanese government with
increased frequency and forcefulness throughout 1999 as the Palestinian
Authority and Israel prepared to resume final status negotiations on
permanent settlement of the Palestinian-Israeli conflict. After Israeli Prime
Minister Ehud Barak said in July 1999 that Israel would not permit any
Palestinian refugees to return to Israel proper and that the refugees should
be settled in their host countries, Lebanese Prime Minister Salim al-Hoss and
94 Supra, n. 20.
95 Ibid.
96 Hilal Khashan, Palestinian Resettlement in Lebanon: Behind the Debate, in Palestinian
Refugees: Background Papers (Montreal, Quebec: Centre dtudes arabes pour le dveloppement,
1995).
Articles
127
President Emile Lahoud repeatedly reiterated Lebanons rejection of refugee
settlement in Lebanon. Reiterating the same official position, Prime Minister
Rafiq al-Hariri stated on one occasion that that the Palestinian refugees were
the sole responsibility of Israel: We cannot give them Lebanese nationality.
We cannot do so because they are not and if we did so, we feel that we are
implementing the plan of Israel.
97
On another occasion Hariri went even
further by declaring that Lebanon would be pressuring the Palestinian refugees
to leave the country.
98
In recent years, the repeatedly stated official Lebanese position reinforced
Lebanese popular animus against the refugees and increased tensions between
the refugee community and their reluctant hosts.
99
Facing enormous pressures
from Lebanese officials, whose near daily public rejection of their presence in
Lebanon was extremely demoralising, the overwhelming majority of Palestinian
refugees also apparently do not wish to remain in Lebanon and continue to
assert their right of return to present-day Israel
100
; a survey of refugees in
Lebanon, conducted in 1994 among 600 respondents, found that 70 per cent
of the refugees opposed resettlement in Lebanon. The same survey revealed
that half expressed the view that the 1993 PLO-Israel Oslo agreement would
not lead to a Palestinian state; two-thirds did not support it and did not see it
as implementing the right of return; three-quarters saw their relationship with
the PLO leadership as negative. Although more than half still considered the
PLO as the sole representative of the Palestinian people, the same proportion
felt it was acting independently of the wishes of the Palestinian people.
101
The multilateral quasi-negotiation: Lebanese attitudes towards the
Refugee Working Group
The Refugee Working Group (RWG) of the Middle East multilateral
negotiations was set up in Moscow in January 1992 in the aftermath of the
Madrid Peace Conference of 1991 to supplement the Israeli-Palestinian and
Israeli-Arab (Syria, Lebanon and Jordan) bilateral negotiations. Since 1992,
Canada has served as the gavel holder of the RWG. The multilaterals included
five working groups covering disarmament, water, environment, economic
development, and refugees. The multilaterals were intended to support and
complement the bilateral process begun at Madrid, and to address broad
regional issues whose solutions required coordinated actions and the support
of the international community. The early meetings of the RWG attempted to
address the refugee issue in three ways: improving the current living conditions
of the refugees and displaced persons without prejudice to their rights
and future status; easing and extending access to family reunification; and
97 Cited in Said, The Obligations of Host Countries to Refugees Under International Law:
The Case of Lebanon, p. 139.
99 Supra, n. 20.
100 Ibid.
101 Hussein Shaaban, What do the Palestinians in Lebanon Say, Majalatt al-Dirasat al-Filastiniyya,
No. 19 (Summer 1995), pp. 176-177.(Arabic).
128
supporting the process of achieving a viable and comprehensive solution to
the refugee problem. Since January 1992, Canada has been the lead country
in the multilaterals for the Palestinian refugee issue, or gavel holder for the
RWG. Canada led missions to Lebanon in 1994 and in 1997 (see below) with
the objective of obtaining views from camp residents on the most appropriate
ways of addressing the social, and economic challenges facing the Palestinian
refugee community in Lebanon. In response to the recommendations that
followed the 1997 mission, donor countries pledged more than US$ 15 million
for a variety of projects and initiatives. Canada used this engagement to
reinforce its dialogue with the Lebanese government about the humanitarian
situation of the refugees.
102
However, when the RWG approved unanimously
a U.S. grant to rebuild destroyed shelters in Sabra and Shatila camps the
Lebanese government refused to approve the scheme.
103
Lebanon (with no Lebanese-Israeli bilateral talks in existence and with a
raging guerrilla war against Israeli occupation in south Lebanon and the
deadlock over the Israeli-Syrian track) had little option but to boycott the
multilateral track and the RWG quasi-negotiations from the beginning.
Moreover a number of (largely Arab) press reports suggested that the RWG
was developing plans to resettle Palestinian refugees in Lebanon, Iraq, Canada
or elsewhere. The result was often substantial hostility to the RWG and Canada
by both NGOs suspicious of its agenda and the Lebanese authorities fearful
of Palestinian tawteen. Although the RWG never comes close to detailed political
discussions or plan-making to this extent,
104
on several occasions senior
Lebanese officials and politicians voiced strong concern at the way the
Canadian gavel holder of the RWG was introducing the rhetoric of
adaptation into the multilaterals a rhetoric which in Lebanese eyes implied
tawteen and affected the attitudes of Arab host states towards the refugees in
their countries. For instance on 27 November 1994 powerful Chamber of
Deputies Speaker Nabih Birri (during a public celebration honouring him at
the Lebanese town of Abra, east of Sidon), accused the Canadian gavel holder
of conspiring with the Israeli government against the Lebanese people
for eliminating the possibility of creating a viable Palestinian state in the West
Bank and Gaza, capable of absorbing the Palestinian refugees, thus forcing
the refugees in Lebanon to be assimilated in the country. Yes, the Canadian
Government is doing its utmost to resettle the Palestinians in Lebanon at the
expense of Lebanon and Palestine, he stated.
105
In contrast, pro-Palestinian
Lebanese figures, unhappy about the public furore created over tawteen, have
accused the Lebanese right of conspiring with Western circles to get rid of the
Palestinians in Lebanon by encouraging their departure to countries overseas.
On 5 September 1999 the leader of the Socialist Progressive Party and former
102 Remarks by Andrew Robinson, the Canadian gavel holder of the RWG, 25 October 1998 at:
www.dfait-maeci.gc.ca/peaceprocess/uqam-e.asp.
103 Tamari, Palestinian Refugee Negotiations, p. 43.
104 Rex Brynen, Much Ado About Nothing? The Refugee Working Group and the Perils of
Multilateral Quasi-negotiation, International Negotiations 2, 2 (November 1997), n. 27, at:
www.arts.mcgill.ca/MEPP/PRRN/papers/ado.html (accessed on 14 August 2003).
105 Excerpted from Radio Lebanon, 27 November 1994 at: www.arts.mcgill.ca/MEPP/PRRN/
papers/berri.html.
Articles
129
minister (Druze leader) Walid Jumblat publicly accused Arafat and the U.S.
government of colluding through the Oslo process and the multilaterals in a
plan aimed at dissolving the Palestinians in Lebanon through their
resettlement in remote parts of the world.
106
In the aftermath of the establishment of the Palestinian Authority
The establishment of the Palestinian Authority in the West Bank and Gaza in
the aftermath of the Oslo accords of September 1993 also deeply affected the
relationship between the Lebanese state and the Palestinian refugees in the
country. There was a deep concern among the Lebanese leadership regarding
the Oslo negotiations between Israel and the Palestinian Authority that the
refugees would be left in Lebanon; that there was little chance of them
returning to what is now Israel; and that only a token number would return to
the West Bank and Gaza; that the final status on the refugee issue might
lead to the resettlement or permanent integration of refugees into the various
host countries where they live a highly unwelcome prospect for them.
Moreover, the outcome of the uniquely hostile attitude of the Lebanese
authorities towards the refugees has had destabilising outcomes for the
Palestinian refugee community. Lebanon declared that it would refuse to accept
dual nationality for Palestinians who chose to remain while acquiring
Palestinian permanent residency. The Lebanese states pressures on the
refugees to go home before the conditions of return have matured have
had a devastating effects on the refugees. In effect the Lebanese moves attempt
to force Palestinians to make a decisive choice between leaving the country
and returning to Palestine before the conditions for such a choice have
developed.
The Palestinian refugee issue was not going to be resolved through
negotiations on the bilateral track alone and the fate of Palestinian refugees
in Lebanon was supposed to be decided not only in negotiations between the
PLO and Israel but also in a multilateral framework that would address the
future status of refugees in the region. This meant that solving the Palestinian
refugee issue was likely to be a Herculean task and required a great deal of
coordination between all regional parties to the Palestinian-Israeli conflict.
Yet political progress in the Oslo peace process on the Palestinian refugee
issue was non-existent, whether in the multilateral or bilateral track of the
peace process.
107
The absence of the governments of Lebanon and Syria, both
of which would have considerable interest in the refugee issue, hindered the
course of the multilaterals on refugees. The lack of meaningful progress in
both the multilateral and the Palestinian-Israeli bilateral track on refugees
has contributed to the marginalisation of Palestinian refugees in Lebanon
perhaps more than Palestinian refugees in any other location in the Middle
East. Today the rights of the refugees in Lebanon are curtailed to a degree
106 Al-Nahar (Beirut), 6 September 1999.
107 Rex Brynen, Imagining a Solution: Final Status Arrangements and Palestinian Refugees in
Lebanon, Journal of Palestine Studies 26, No. 2 (Winter 1997), p. 42.
130
unparalleled elsewhere in the Middle East, to some extent as a result of
Lebanons hostile reaction to the Oslo process. Indeed the refugees in Lebanon
themselves strongly believe that they have paid the price of the inadequacies
of the Oslo process.
108
In the meantime, Lebanon steadfastly continues to
oppose the naturalisation of the refugees, about 10 per cent of Lebanons
total population and mostly Sunni Muslim, arguing that their permanent
integration would disrupt its fragile political system, which is based on power
sharing along sectarian lines.
109
Although the Palestinian Authoritys policies towards the Palestinians in
Lebanon appears to be one of absence, both the Palestinian Authority
leadership and the Lebanese government agree on one thing: public rejection
of permanent resettlement of the Palestinians in Lebanon.
110
In recent years,
the Palestinian Authority in particular has been extremely anxious to allay
the fears of Arab host states over the issue of resettlement. For instance, on
3 December 1999, the Palestinian Authority issued a special statement from
Ramallah,
denouncing the dangerous schemes of resettlement propagated by quarters and
circles hostile to the Palestinian people and concerned to assure the sisterly Arab
host countries, the Palestinian refugees and the rest of the world that the widely-
propagated resettlement conspiracy was fed by certain circles over rejection of refugee
return and the rejection of UN resolution 194, which provides a return of the
Palestinian refugees to their homes. The [Palestinian] leadership stresses that the
only aim of this propagation is to sow the seeds of dispute, quarrel and confrontation
among host countries and refugee camps, whose presence in these countries is
regulated by Arab League protocols, and agreement of all members of the Arab
League and in accordance with UN resolution.
111
For its part the Lebanese government has continued to voice strong opposition
to the multilateral track on refugees a track which has clearly failed to
accommodate its national interests on the refugee issue. Consequently, partly
in response to the bilateral Israel-Palestinian track, the government has, in
recent years, shown greater determination to oppose all policies and actions
that could be construed as facilitating or accepting Palestinian integration.
108 U.S. Committee for Refugees: Articles, Palestinian refugees in Lebanon: Paying the Price
for Middle East Peace at: www.refugees.org.
109 Supra, n. 20.
110 See Faruq Qaddumis statement in al-Nahar, 18 November 1996.
111 Statement issued by Palestinian official news agency WAFA (Gaza), 3 December 1999.
Articles
131
Betrayed and Forgotten:
Palestinian Refugees in Lebanon
Lena El-Malak*
INTRODUCTION
There is not a single Palestinian who has designs on the soil of Lebanon. On the
contrary, we are ready for any sacrifice for Lebanon and its people, and we consider
our residence in this country is temporary.
Muhammad al-Bajirmi,
1
Palestinian refugee in the Rashidieh Camp
In the past century, numerous wars have contributed to flows of international
migration, giving new meanings to territories, borders, state sovereignty,
refugee camps, and repatriation. Events surrounding the creation of the State
of Israel in 1948 have made of Palestinian refugees the worlds largest and
oldest refugee population, with estimates of over 4 million.
2
Fifty years after
their initial displacement, Palestinians still linger in refugee camps in misery
and poverty while the prospect of a just settlement to their cause grows dimmer
every day. Their struggle, long ignored by the international community, reveals
a strong will to survive against all odds and an undeniable attachment to their
land, from which they fled in fear decades ago. Among the most dramatic
stories of such survival is that of the Palestinian refugees in Lebanon. Their
history is marked by forced exile, years of civil war, displacement, massacres,
and a life of humiliation and deprivation at the margins of the flourishing
post-war Lebanese society.
* Lena El-Malak obtained an M.A. in Public International Law from SOAS in 2003 and is currently
working as Durable Solutions Assistant for the UNHCR in Jordan.
1 Cited in Aql, A., Palestinian Refugees of Lebanon Speak, XXV, no.1, Journal of Palestine Studies
(Autumn 1995), 54 at p. 58.
2 UNRWA, UNRWA in figures: figures as of 31 December 2002, (31 December 2002),
www.un.org/unrwa/pr/pdf/uif-dec02.pdf (accessed: 07/04/02).
UNRWA figures of 31 December 2002 confirm that there are currently 4,025,694 registered
refugees in Lebanon, Syria, Jordan, the West Bank and the Gaza Strip. These figures do not
take into account refugees in Egypt, as well as the thousands of Palestinian refugees who do
not satisfy the UNRWA definition, or who have acquired other nationalities and are no longer
registered with UNRWA.
132
The aim of this article is to shed some light on the legal challenges facing
Palestinian refugees in one of their host countries: Lebanon.
3
It will outline
the evolution of their legal status in Lebanon and the curtailment of their
civil rights, particularly since the end of the Lebanese civil war. It will also
define the legal obligations of the Lebanese government vis--vis Palestinian
refugees, and will advocate a redress to the injustice perpetrated by that
government against them. This article unequivocally operates without
prejudice to the inalienable rights of Palestinian refugees, as per paragraph
11 of U.N. General Assembly Resolution 194,
4
namely their right to return to
the homes from which they fled back in 1948. It can, by no means, be
interpreted as promoting the local integration of Palestinians in their host
countries.
The first chapter of this article will give a brief historical overview of the
Palestinian refugees presence on Lebanese territory from 1948 until the end
of the Civil War, and the evolution of the official Lebanese reaction to their
presence. It will also discuss the role of the United Nations Relief Work Agency
(UNRWA) and the Palestine Liberation Organisation (PLO) in shaping the
status of Palestinian refugees in Lebanon. The second chapter of this study
will discuss the legal restrictions facing Palestinian refugees that have
constrained almost every aspect of their daily lives. Finally, the third chapter
will discuss Lebanons obligations towards Palestinian refugees in accordance
with binding international legal instruments. It will also outline solutions that
have been proposed as a way out of this impasse.
1 HISTORICAL OVERVIEW OF PALESTINIAN REFUGEES
IN LEBANON
The exodus of Palestinians from their homes in Mandate Palestine took place
in the late 1940s. The chain of events that forced Palestinians to flee their
homes is beyond the scope of this article and has been unveiled in detail by
New Israeli Historians.
5
It is, however, essential for the purposes of this research
to provide a chronology of events that gave rise to the current status of
Palestinian refugees in Lebanon. This will include the role of various actors,
namely Lebanon, the PLO and UNRWA in shaping this status.
3 For a map of Palestinian refugees in Lebanon in 1999, see Al-Mashriq, Palestinian refugee
camps in Lebanon-1999, (1999), http://almashriq.hiof.no/lebanon/300/300/307/pal-
camps/index.html (accessed 03/06/03).
4 Palestine-Progress Report of the United Nations Mediator, GA Res. 194(III), (11 December 1948)
(hereinafter Resolution 194).
5 See Morris, B., The Birth of the Palestinian Refugee Problem, 1947-1949, Cambridge, Cambridge
University Press, 1987; Shlaim, A., Collusion Across the Jordan: King Adbullah, the Zionist Movement
and the Partition of Palestine, Oxford, Clarendon Press, 1988, and Papp, I., Britain and the Arab-
Israeli Conflict, 1948-51, London, Macmillan Press, 1988.
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133
Arrival in Lebanon
Evolution of Lebanese official perception of Palestinian refugees
In the years surrounding the creation of the State of Israel and the first Arab-
Israeli war (1947-1948), the United Nations Economic Survey Mission (ESM)
estimated that 726,000 refugees
6
fled from Mandate Palestine to neighbouring
Arab countries. In 1949, the ESM assessed that, out of this total, 100,000
refugees had fled to Lebanon.
7
Initially, Palestinians were greeted with feelings of sympathy and compassion
by the majority of the Lebanese population.
8
Even the official position of the
government revealed a strong sense of solidarity. Mr. Bishara Khoury, the
Lebanese president at the time, greeted them into the city of Tyre with the
emotive words: Welcome to your country.
9
However, these feelings of
solidarity began to wane when it became apparent that the Palestinians right
of return was inauspiciously undermined by Israeli intransigence, and the
Palestinians presence began to be perceived as rather permanent.
As early as 1949, and fearing an imposed integration of Palestinians, the
Lebanese government adopted a number of measures suppressing aid to
Palestinians, and supported projects aimed at transferring Palestinians out of
Lebanon.
10
In addition, the Lebanese government implemented a policy of
dispersal in order to distribute Palestinian refugees according to the geographic
and demographic needs of Lebanon.
11
The majority of Palestinian refugees
were thus scattered in makeshift camps across Lebanon. The number of camps
reached 17; however, five of them were destroyed during the civil war, as will
be discussed later.
The shift in Lebanese policy towards Palestinian refugees was also prompted
by the Rhodes Accords of 1949, which imposed a cease-fire between Israel and
Lebanon. From then on, the government tightened its grip on Palestinians to
ensure that no attacks on Israel were initiated from Lebanese soil. Palestinian
camps were thus isolated from Lebanese society and from each other. In
addition, harsh measures were imposed on the inhabitants of the camps,
making their lives intolerable. Freedom of movement between the camps was
severely curtailed, as was the refugees right to assemble, and they were unable
to engage in any type of political activity.
12
Lebanese confessionalism also played a part in shaping policy vis--vis
Palestinian refugees. Maronite groups lobbied extensively in favour of the
naturalisation of Palestinian Christians. These efforts bore fruit when 28,000
Palestinian Christians acquired Lebanese citizenship in 1949, which increased
6 Takkenberg, L., The Status of Palestinian Refugees in International Law, Oxford, Clarendon Press,
1998 at p.19.
7 Natour, S., Les Palestiniens du Liban : la Situation Sociale, Economique et Juridique, Beirut, Dar Al
Taqqadom Al Arabi, 1993 at p.15.
8 Hallak, H., La position du Liban sur la question palestinienne, Beirut, PLO Research Centre, 1982
at p.168 cited in Natour, supra n. 6 at p. 37.
9 Ibid.
10 Ibid, p. 346 cited in Natour, supra n. 6 at p. 43.
11 Natour, supra n. 6 at p. 40.
12 Ibid, p. 43.
Betrayed and Forgotten: Palestinian Refugees in Lebanon
134
their employment opportunities, while the remaining Palestinians, the majority
of which were Muslim, were further alienated.
13
In 1951, the Minister of
Employment and Social Work, Emile Lahoud, aggravated the difficulties facing
Palestinian refugees by imposing a work permit requirement, thus equating
their status to that of any other foreigner.
14
Since their arrival in Lebanon, the legal status of Palestinian refugees has
been marked by arbitrariness and ambiguity. While they benefited from aid
and support for the first couple of years, their status became more precarious
with time. The first steps towards formalising the status of Palestinians came
in 1959, with the creation of the Directorate for the Affairs of the Refugees in
Lebanon (also called Department of Palestinian Refugee Affairs), which was
set up by Regulations 42 and 927 of 31 March 1959, and was established to
oversee all matters pertaining to Palestinian refugees.
15
A year later, on 26
April 1960, Regulation 3909 created the Supreme Council for the affairs of
the Palestinians which was under the Minister of Foreign Affairs and migrs.
16
Despite the creation of these two bodies, there has never been clear legislation
granting Palestinian refugees a special status. They were officially classified as
other foreigners in the 1962 aliens legislation,
17
demonstrating Lebanons
unwillingness to view Palestinians as refugees deserving specific attention. The
full impact of this classification will be examined in section 2 of this article.
The situation of Palestinians in Lebanon continued to deteriorate with time.
In the late 1950s, Israel had attacked Lebanon in response to guerrilla raids
carried out by the Palestinian resistance. As researcher Jaber Suleiman noted,
these events initiated an aggressive policy by President Fuad Chehabs
regime.
18
Suheil Natour refers to measures of collective punishment such as
the refusal to award any work permits, and laying siege on the camps.
19
This
aggravated situation led to an uprising in the camps against Lebanese forces
on 23 April 1969, which finally drove both parties, the Lebanese government
and the PLO, to sign the Cairo Accords of 1969.
20
Defining Palestine Refugees
Before examining the changes brought about by the Cairo Accords, it is
appropriate to discuss the definition of Palestine refugees, most importantly
the one adopted by UNRWA. The definition is used to determine the number
13 Ibid, p. 42. See also Sayigh, infra n. 57 at endnote 25, p. 53. Sayigh notes that [N]aturalization
was easy for Christian and wealthy Muslim Palestinians in the early years of exile.
15 Davis, U., Citizenship and the State: A Comparative Study of Citizenship Legislation in Israel, Jordan,
Palestine, Syria and Lebanon, Reading, Ithaca Press, 1997 at pp. 160-161.
16 Ibid.
17 Palestinian Human Rights Organization (PHRO), Tactics toward change, Hokook Newsletter,
Issue 5, (Dec. 2002), www.palhumanrights.org/engpub6p1.htm (accessed: 31/05/03).
18 Suleiman, J., Report from Lebanon: The Current Political, Organizational, and Security
Situation in the Palestinian Refugee Camps of Lebanon, XXIX, no. 1, Journal of Palestine
Studies (Autumn 1999), 66 at p. 67.
19 Natour, supra n. 6 pp. 43-44.
20 Suleiman, supra n. 17.
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135
of refugees registered with the agency, and hence eligible for the assistance it
provided. Registration with UNRWA is also useful in determining the refugees
legal status within their host countries, or lack of it.
UNRWA was created by General Assembly Resolution 302 (IV) of 8
December 1949
21
:
(a) To carry out in collaboration with local governments the direct relief
and works programmes as recommended by the Economic Survey
Mission.
(b) To consult with the interested Near Eastern governments concerning
measures to be taken by them preparator y to the time when
international assistance for relief and works projects is no longer
available.
Although Resolution 302 defined the main goals of UNRWA, it did not,
however, offer any clear definition of Palestine refugees, nor did Resolution
194 or any other subsequent General Assembly resolution for that matter. In
addition, a statute governing the functioning of UNRWA was never adopted
by the General Assembly, in contrast with the case of the United Nations High
Commissioner for Refugees (UNHCR). It was thus up to UNRWA to come up
with is own definition of the persons eligible to receive assistance from the
agency.
22
Hence, UNRWA adopted a definition which was modified with time.
This definition was often tailored to the needs of the agencys donors, as
UNRWA official and academic Lex Takkenberg has outlined in detail in his
outstanding research on Palestinian refugees in international law.
23
Like
Lebanon, the international community adopted an arbitrary and ambiguous
approach to the legal status of Palestinian refugees.
One of the earlier definitions was issued in 1951 and stipulated that:
[A Palestine refugee is] a person normally resident in Palestine, who has lost his
home and his livelihood as a result of the hostilities, and who is in need.
24
Although it is beyond the scope of this article to examine the meaning of
each requirement set forth by this definition, suffice it to quote Lex
Takkenbergs conclusion that:
[t]he definition was narrowly drawn and excluded some categories of persons who,
although not meeting the criteria of the UNRWA definition, became refugees as a
result of the 1948 conflict.
25
This exclusion by UNRWA of Palestine refugees from its registry had serious
consequences on their legal status in Lebanon, as will be demonstrated in this
section.
21 Assistance to Palestine Refugees, GA Res. 302 (IV), 8 December 1949, para. 7 [hereinafter Resolution
302]. UNRWA was specifically created to provide assistance to Palestinian refugees who were
excluded from UNHCRs mandate, see infra section 3).
22 Takkenberg, supra n. 5 at p. 69.
23 Ibid, pp. 68-81.
24 UNRWA, Assistance to Palestine Refugees: Report of the Director of the United Nations Relief and Works
Agency for Palestine Refugees in the Near East, GAOR, 6th sess., suppl. 16, U.N. doc. A/1905, para.
16.
136
The first census of Palestinian refugees was carried out in 1948 by the League
of Red Cross Societies.
26
It was later followed by UNRWAs census during 1950-
1951.
27
Since then, UNRWA has been prevented by host countries from
conducting any surveys on Palestinian refugees.
28
Lacking any definition of its
own, the Directorate for the Affairs of Palestinian Refugees (hereinafter
Directorate) in the Lebanese Ministry of the Interior, based itself on the initial
UNRWA census of 1951 to subsequently register Palestinian refugees in
Lebanon.
29
All individuals listed in this census were automatically added to
the Directorates registry as well as to the records of the General Security
Bureau (mudiriyyat al-amn al-amm).
30
Since then, the Directorate has had to
add amendments to this definition based on Ministerial decrees in order to
include subsequent waves of Palestinian refugees.
31
In 1956, about 5,000 Palestinians fled Gaza following the eruption of
hostilities during the Suez Canal crisis. UNRWA refused to transfer their records
from Gaza to Lebanon. Accordingly, they were never registered with the agency
in Lebanon (Non-Registered or NR refugees), and were thus deprived of its
assistance. Lebanon initially granted them leave to remain and they carried
white IDs issued by the General Security Bureau .
32
Through Decrees 309 of
1962 and 136 of 1969, Lebanon assimilated their status, as well as that of the
Palestinians who were excluded from the 1951 census, to that of Palestine
refugees registered with UNRWA in Lebanon.
33
They were consequently added
to the Lebanese registry of Palestine refugees and were granted Lebanese
travel documents (laissez-passer).
34
Another flow of refugees entered Lebanon in the late 1960s, following the
1967 war. They were followed by additional waves of refugees who fled Jordan
in the aftermath of Black September in 1970, and the eruption of the Jerash
battles in 1971.
35
These newcomers were never registered in any official records,
nor were they granted any documents, not even ID cards, from either UNRWAs
offices in Lebanon or the Lebanese government. Their exact number is
unknown since there were never any attempts to conduct a census confirming
their presence. Their status in Lebanon is deemed illegal,
36
and they are subject
to arbitrary detention and deportation. As of 1983, there were approximately
100,000 illegal Palestinians in Lebanon.
37
The predicament of illegal Palestinians in Lebanon is further aggravated
considering that [t]he acquisition of Palestinian refugee status is confined to
26 Ibid, pp. 163-164.
27 Ibid, p. 70.
28 Ibid.
29 Natour, S., The Palestinian Refugees in Lebanon, (May 2000), www.group194.org/english/
studies/default.asp (accessed: 30/10/02) at p. 5.
30 Davis, supra n. 14 at p. 159.
33 Ibid.
34 Ibid.
36 Ibid, p. 36.
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137
those who are born to a registered refugee father.
38
Hence, children born to
a registered refugee woman married to a non-registered man, are not eligible
to receive assistance from the agency.
39
The decision by UNRWA to adopt a
gender-specific definition has been severely criticised as grossly inconsistent
with . . . international legal norms . . . .
40
As discussed in this section, lacunas in UNRWAs definition have, thus,
created an entire group of people who are non-existent to the agency, or even
worse, to their host countries.
PLO in control of the camps
As discussed in section 1, the 1969 uprising in the camps convinced the
PLO and the Lebanese government of the need to reach an agreement over
the administration of Palestinian camps. The Cairo Accords (hereinafter
Agreement) were thus signed on 3 November 1969.
41
This Agreement
improved the Palestinians status in Lebanon by establishing the following
principles:
(1) The right of Palestine refugees currently in Lebanon to residence and
work.
(2) The right of local representation for Palestinians resident in refugee
camps to act in their interest in cooperation with the Lebanese local
authorities.
(3) The right of the Palestinians resident in Lebanon to participate in the
Palestinian armed struggle.
42
Along with the clashes that ensued in Jordan during Black September, the
Agreement facilitated an increased presence of the PLO in Lebanon. This, in
turn, helped loosen Lebanons grip on Palestinian refugees, particularly in
terms of the issuance of work permits.
43
In fact, Davis confirmed the benefits
of the Agreement by stating that:
[t]here is no question that the Cairo agreement represented a huge improvement
in the legal status of Palestinians in Lebanon in that it removed the status of the
Palestinians in Lebanon from the classification as foreigners . . . .
44
Flows of aid to the PLO permitted the creation of new institutions, most notably
the Palestinian Red Crescent, as well as sports institutions and educational
centres,
45
thus generating employment opportunities. Despite this aid, the
PLO failed to build a sustainable economy from within the camps, mainly due
40 Cervenak, C.M., Promoting Inequality: Gender-Based Discrimination in UNRWAs Approach
to Palestine Refugee Status, 16 Human Rights Quarterly (1994), 300 at p. 346.
41 Suleiman, supra n. 17. See Chaaban, infra n. 138 at pp.250-252 for a full text of the Agreement.
43 Edminster, S., Trapped on All Sides: the Marginalization of Palestinian Refugees in Lebanon,
Immigration and Refugee Services of America, 1999 at p. 5.
138
to the fact that refugees were scattered in various locations. In addition,
corruption was rampant amid the ranks of the PLO, at the time.
46
The PLO also engaged in guerrilla attacks on Israel from southern Lebanon.
However, unlike the situation prior to the Agreement, these attacks were now
undertaken in coordination with the Lebanese army.
47
As noted by
Takkenberg, [t]he most significant consequence of the Agreement was that
the PLO gained de facto control of the refugee camps in the country.
48
The PLO, however, exacerbated the tensions within Lebanese society by
creating a state within a state. The PLOs presence was gradually seen as
being at the expense of large segments of the Lebanese population .
49
While Maronites had rejected the Agreement from its onset and mobilised
against the Palestinian community, Muslims came to resent the PLO because
of its guerrilla attacks on Israel, which led to severe retaliations targeting the
predominantly Shiite areas of southern Lebanon.
50
Amid resentment and
confrontation, the PLOs control over the camps continued until 1982, long
after the civil war erupted in Lebanon, shattering the lives of Lebanese and
Palestinians alike.
Status during the war
Departure of the PLO
The departure of the PLO from Lebanon came in 1982, following the Israeli
invasion of Beirut. It signalled a new era for Palestinian refugees. Established
in 1969, the PLOs official headquarters in the Lebanese capital were closed
down following the organisations withdrawal in 1982. At the time, the PLO
had requested Lebanon to allow a few of their officials to remain in the capital.
While an initial agreement was reached, these officials were later expelled,
and Palestinians lost contact with their leaders and representatives in the
diaspora.
51
This absence of any representative of Palestinians during the war
facilitated the reversal of the social and economic gains, which were achieved
following the 1969 uprising. The Palestinians status in Lebanon could easily
be undermined now that their leadership was no longer able to provide them
with the required physical and legal protection.
Left at the mercy of Lebanese militias and invading powers, the lives of
Palestinian refugees were devastated by displacement and massacres. Their
46 Ibid.
48 Ibid.
49 Edminster, supra n. 42 at p. 5.
50 Khashan, H., Palestinian Resettlement in Lebanon: Behind the Debate, Montreal, Montreal Studies
on the contemporary Arab world, Inter-University Consortium for Arab Studies, 1994 at p. 3.
51 Natour, supra n. 6 at pp. 58-59.
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139
vulnerability reached a peak with the massacres of Sabra and Shatila in 1982.
52
More death and destruction were in store for Palestinians when Arafats loyalists
were encircled in Tripoli in 1983 by the Syrian-backed Fateh-intifada. Arafats
brief resurgence in Tripoli stimulated the PLOs confrontation with Syria on
Lebanese soil. With Syrias backing, the Amal Shia militia then pursued the
war of the camps from 1985 to 1987.
53
Thousands have perished during the
war
54
due to the absence of any organisation able to provide Palestinian
refugees with any physical protection.
The absence of legal protection was exemplified in 1987, when the Lebanese
Chamber of Deputies and the Lebanese President, Amin Al-Jumayyil,
unilaterally abrogated the Agreement.
55
As the rights of Palestinians were
quashed with the stroke of a pen, Natour points out to the PLOs failure, in
the past, to press the Lebanese government into formalising the legal status
of Palestinians, namely by issuing national legislation implementing the
Agreements provisions on Palestinians social and economic rights.
56
Palestinian refugees, once again, found their legal status floating amid
arbitrariness and insecurity.
Destruction, displacement and emigration
The civil war, from 1975 to 1990, severely impacted the lives of thousands of
Lebanese and Palestinian civilians. Although no one was spared from the
atrocities of the war, the situation in the north of Lebanon and the Beqaa
Valley was slightly better than the war-torn cities of the south and Beirut. Since
most of the predominantly Shia Muslim areas were located in the South and
Beirut, the war of the camps took a heavy toll on the Palestinians living in
these areas. Their camps were completely isolated from the surroundings.
57
In addition, most of these camps were either partially or completely destroyed
throughout the war. Out of the 17 Palestinian refugee camps that dotted
Lebanons coasts and valleys, at least five were destroyed during the Civil War.
These are: Nabatiyeh (1974), Tal El-Zaatar (1976), Jisr El-Basha (1976), Dbayeh
(1976) and Dauq (1985) a quasi-official camp at the heart of Sabra.
58
52 Indict Sharon, The Sabra and Shatila Massacres, www.indictsharon.net (accessed: 15/04/
03). See also Fisk, R., Pity The Nation: The Abduction of Lebanon, New York, Simon & Schuster,
1990 at pp. 389-390. Fisk says that The number of bodies found at Sabra and Chatila and the
growing list of missing Palestinians and Lebanese civilians as well as the evidence of
Phalangist officers in the weeks that followed suggested that well over 1,000 people were
murdered in the Beirut camps between the 16 and 18 November 1982, quite possibly as many
as 2,000.
53 Khashan, supra n. 49 at p. 4.
54 Arzt, D.E., Refugees Into Citizens: Palestinians and the End of the Arab-Israeli Conflict, New York,
Council on Foreign Relations, 1997 at p. 46. Arzt estimates that 50,000 to 60,000 Palestinians
were lost in casualties and out-migration from the 1982 Israeli invasion and through the war
of the camps in the mid 1980s.
56 Edminster, supra n. 42 at pp. 6-7.
57 Ibid, p. 8.
58 Sayigh, R., Palestinians in Lebanon: Harsh Present, Uncertain Future, XXV, no.1, Journal of
Palestine Studies (Autumn 1995), 37 at endn. 21 p. 53.
140
Today, 12 official camps remain (see Annex). Albeit severely destroyed during
the war, the Dbayeh camp remains serviced by UNRWA, although none of its
original inhabitants were allowed to return.
59
Terror and destruction were used to disperse Palestinians across Lebanon,
particularly in the south, which fell under the occupation of Israeli forces and
their proxy militias.
60
On 3 July 1982, the New York Times reported that the
Israeli army systematically destroyed many of the Palestinians houses that
survived the battles, increasing the number of homeless families, many of
them with children.
61
Numerous families were prevented from rebuilding
their homes, while those who fled were, once again, unable to return.
62
In
1998, as many as 20,000 Palestinian refugees remained internally displaced in
Lebanon.
63
Fear and destitution left thousands of Palestinians seeking a way out of
Lebanon. At the pinnacle of their needs, most Arab countries
64
closed their
doors to Palestinians in fear of encouraging their emigration. With no safe-
haven in Lebanon, and the Arab world turning a blind eye to their plight,
thousands of Palestinians immigrated to the West, mainly to West Germany,
Denmark and Sweden.
65
Status after the war
While the end of the war may have implied that reconciliation and a better
future were in the offing, the forecasts of change seemed to have, once again,
circumvented Palestinian refugees. The end of armed clashes reinstated an
illusory sense of overall peace and security in Lebanon. In reality, the days
ahead presaged instability and suffering, at least for the Palestinians. Two of
the major factors for this instability are UNRWAs shortcomings and the PLOs
betrayal.
UNRWAs shortcomings
UNRWAs services dwindled at a time when the need for them had sky-rocketed.
The post-1991 Gulf war scenario increased the pressure on UNRWA as
59 Ibid.
60 Al-Zabin, S., Palestinian Refugees Situations in Lebanon, Ramallah, Palestinian Diaspora and
Refugee Centre (SHAML), 2000 at p. 17. According to Al-Zabin, around 65,000 Palestinians
fled from the South following Israels invasion of the camps in Tyre in 1978.
61 Shipler, D.K., Piles of Rubble Were the Homes of Palestinians, The New York Times, (The New
York Times Company, July 3, 1982) Section 1, p. 1, Column 2 cited in Edminster, supra n. 42 at
p. 7.
64 According to Suheil Natour, Palestinians in Lebanon were able to migrate to Libya in the
1980s. (Natour, supra n. 6 at p. 75). This finding was supported by Lex Takkenberg, who stated
that . . . until recently, Libya was considered one of the most liberal countries in the Arab
world as far as allowing entry and work for Palestinians concerned. This led to the immigration
to Libya by many Palestinians who had experienced unemployment or travel and work
restriction in their countries of original refuge. (Takkenberg, supra n. 5 at p. 166.)
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141
remittances from Palestinians in the Gulf stopped coming in and some of
those expelled from various Gulf countries returned to life in the camps.
66
With no financial breakthrough in sight, UNRWA had no other alternative
but to issue Emergency Appeals and impose cuts on its already meagre budget.
In fact, UNRWA has experienced chronic budgetary shortfalls that have
reduced the average annual expenditure per refugee by 37 per cent, from
about $110 in 1992 to about $69 in 1999.
67
This meant severe cuts in most, if
not all, of UNRWAs services, which significantly added to the hardships of
Palestinians.
UNRWA has been accused of corruption and of diverting funds to the
Occupied Palestinian Territories, which have become the focal point of
international donors and aid agencies following the peace process. While
UNRWA denies deflecting any funds at the expense of the most basic services
in Lebanon, an official of the Lebanese Department for Palestinian Refugee
Affairs, confirmed these allegations when he produced the 1995 funding figures
for UNRWAs Peace Implementation Program (PIP). PIPs aim was to
demonstrate the benefits of the peace process by subsidising relevant projects
in all of UNRWAs fields of operation. According to these figures, 66 per cent
of PIP grants went to UNRWA headquarters in the Gaza Strip.
68
Other sources,
69
including UNRWA staff, have substantiated these accusations by agreeing that
UNRWAs resources and wherewithal to deliver its services have plummeted
in recent years, at the particular expense of refugees in Lebanon.
70
As for allegations of corruption, UNRWA was accused of mismanaging its
funds to the benefit of a clique of entrepreneurs, as far back as 1993. Examples
of UNRWAs money-squandering drives include the US$170,000 invested by
the agencys engineering department on housing constructions in the city of
Tyre, when the cost of the entire project was independently evaluated at no
more than US$90,000
71
. In addition, officials within the U.S. government
claimed that Wolfgang Plaza, a former director of UNRWAs Lebanon
65 Natour, supra n. 6 at p. 75. According to Takkenberg, supra n. 5 at p. 18: [i]t is estimated that
more than 100,000 Palestinians left Lebanon throughout the civil war period. The number
of Palestinians currently residing in Lebanon is estimated at 370,000 (see UNRWA, infra n.
133). According to Rekacewicz, P., La diaspora palestinienne dans le monde, (February
2000), www.monde-diplomatique.fr/cartes/refugiesdiasporapaldpl2000 (accessed: 18/04/03),
there are about 30,000 Palestinians in Germany, 16-20,000 in Denmark and 15-18,000 in
Sweden.
66 Edminster, supra n. 42 at p. 17. Edminster states that as many as 40,000 to 50,000 Palestinians
in the Gulf returned to Lebanon during the Gulf War and its aftermath .
67 U.S. Committee for Refugees, Palestinian Refugees in Lebanon: Hardest Hit by Middle East
Peace Impasse, (June 2000), www.refugees.org/news/press_releases/2000/061300e.htm
(accessed: 28/10/02) at p. 2.
69 Sayigh, supra n. 57 at p. 38. Sayigh states: The Peace Implementation Program (PIP) has
received donor pledges totalling $76 million for projects in Gaza, $46 million for the West
Bank, and $10 million for Jordan, Syria and Lebanon combined. The other two special budgets
are the Extraordinary Measures for Lebanon and the Occupied Territories (EMLOT), where
aid to Gaza in 1993-1994 was seven times that of Lebanon, and the Expanded Program of
Assistance (EPA), where aid to Gaza was sixty-five times greater.
70 Edminster, supra n. 42 p. 18.
142
operations, was dismissed in September 1998 because he worked to root out
corruption while employed by the agency.
72
Seeking an end to this controversy,
U.N. Secretary-General Kofi Annan and UNRWA Commissioner-General Peter
Hansen dispatched an investigative team to Lebanon in late September 1998.
Although no concrete evidence was presented against UNRWA, the
investigation could not conclude from this assessment that there are no
corrupt acts in the FOL [UNRWAs Lebanon office].
73
The mistrust that
followed this corruption scandal caused some of the major international
contributors, such as the European Union, to briefly suspend their funding
of UNRWA.
74
Once again, Palestinian refugees in Lebanon fell out of the
equation, as more poverty and misery were added to it.
PLOs betrayal
The now decrepit, derailed peace process was long viewed by many as the
capitulation of the Palestinians,
75
and it was not long before their predictions
came true. Discontent prevailed among most refugees who felt betrayed by a
process that excluded them from the onset. As Susan M. Akram, stated in a
recent article:
[b]y making explicit reference to only the resolutions embodying the land-for-peace
formula in other words, satisfying the Palestinian collective demand for self-
determination but excluding reference to any resolutions delineating individual
rights of the refugees, the Oslo framework legitimises a trade off of the latter rights
for the former.
76
Palestinian refugees everywhere felt their rights were being relinquished with
the stroke of a pen. In Lebanon, the aftermath of the historic handshake in
Washington was negative and impacted the economic and legal aspects of the
lives of Palestinian refugees.
While the PLOs drought began when Gulf countries cut their funding to
the organisation in response to Yasir Arafats stance on Iraqs invasion of
Kuwait,
77
the penury in the camps was aggravated in 1993, when the PLO, like
UNRWA, shifted its financial resources to the Gaza Strip and West Bank
78
at
the expense of Palestinians in Lebanon and elsewhere in the Diaspora. This
73 Report of the Office of Internal Oversight Services/Investigations Section on the Assessment Mission in
the UNRWA Field Office in Lebanon, p. 2.
75 See, for example, Said, E., Peace and Its Discontents: Essays on Palestine in the Middle East Peace
Process, New York, Vintage Books, 1996.
76 Akram, S. M., Palestinian Refugees and Their Legal Status: Rights, Politics, and Implications
for a Just Solution, XXXI, no. 3, Journal of Palestine Studies, (Spring 2002), 36 at p. 47. Akram
states that: [t]he only resolutions specifically referenced in the Oslo agreements, and indeed
in any of the Arab-Israeli treaties, are 242 and 338, the basis of the land for peace formula.
However, neither resolution has specific language referring to the framework of a just solution
for the refugees, and it is clear that the omission of the UNGA Resolution 194 and UNSC
Resolution 237 is deliberate on Israels part.
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143
desertion by the PLO led to a widespread feeling among refugees in the camps
that they were betrayed and ignored by their leadership. As Mahmud Abbas, a
refugee from the Mar Elias camp stated:
Its up to the PLO to take responsibility for the fate of the Palestinians in exile,
whose situation is the most difficult of all. You will not find two people who are
not convinced that the Gaza-Jericho agreement is an agreement of capitulation and
betrayal.
79
Heeding their calls of distress, Nabil Shaath, a delegate of the Palestinian
Authority (PA), unequivocally stated at an emergency meeting held by UNRWA
in March 1995, that the Palestinians in Lebanon were not the PAs responsibility
but UNRWAs.
80
Statements such as these have only deepened the divide
between Palestinian refugees in Lebanon and the PA. Allegations of corruption
did not help in improving the PAs credibility in the eyes of Palestinian refugees
in Lebanon, 60 per cent of whom live below the poverty line.
81
Summing up
the refugees predicament, Dr. Yusif Sayigh, a Palestinian economist in Beirut
stated:
Health and education have been on a steady decline UNRWA services are also
declining at a time when the agency is needed more than ever The Arab states
have deserted us, our own [Palestinian] leadership too. They [the leaders of the PA]
are making millions individually.
82
On the legal side, the status of Palestinian refugees was largely ignored by the
Oslo process. The deferral of their issue to final status negotiations only
increased the refugees suspicions, as well as their worst fears of being either
forced to resettle in Lebanon or relocate to third countries. In the face of
threats of an imposed integration of Palestinians in Lebanon, the Lebanese
response was unequivocal: no to tawteen (local integration/naturalisation).
The Lebanese took their position to an extreme when in November 1994,
Lebanons President Elias Hrawi said,
. . . that his government would expel all Palestinian refugees from Lebanese territory
should the Oslo Agreement fail to accommodate them.
83
Backing up words with action, post-war and post-Oslo Lebanon began a tacit
policy of encouraging the emigration of Palestinians out of Lebanon. As will
be discussed in section 2, this hidden policy took the shape of a series of
decrees and measures restricting the civil rights of Palestinians, thus rendering
their lives unbearable and forcing them out of Lebanon.
79 Aql, supra n. 1 at p. 57.
80 Sayigh, supra 57 at p. 41.
81 Ghandour, N., Meeting the Needs of Palestinian Refugees in Lebanon cited in N. Aruri,
Palestinian Refugees: The Right of Return, London, Pluto Press, 2001, 152 at p. 153.
83 Ibid, p. 12.
144
2 THE LEGAL CONSTRAINTS FACING PALESTINIAN
REFUGEES IN LEBANON
As discussed in section 1, the suffering of Palestinian refugees had not
disappeared with the end of the civil war, nor with the beginning of the peace
process. The absence of any formal legislation safeguarding the rights of
Palestinian refugees had already facilitated the reversal of all gains acquired
through the Agreement. The unilateral abrogation of this agreement had
signalled the beginning of an era of containment of Palestinian refugees in
Lebanon; a containment that proceeded largely unhindered, in the absence
of legislative guarantees.
Since then, several attempts were made to improve the Palestinians legal
status in Lebanon. An attempt was initially made in the summer of 1991,
following clashes in the Ein El-Hilweh and Mieh Mieh refugee camps, when
the Lebanese army tried to disarm Palestinian militia. A settlement was then
reached between the two in which Lebanon agreed to grant Palestinians their
basic civil rights. That same year, the Lebanese government created a
ministerial committee to address the issue of the rights and obligations of
Palestinian refugees residing in the country. The committee was, however,
unable to formulate any substantial amendments to the status of Palestinians.
Its activities were terminated after a few meetings.
84
In that same year, the PLO brought the issue of the refugees civic rights to
its normalisation talks with Lebanon. These talks followed the Taif agreement
which put an end to the Lebanese civil war in 1989, and officially excluded
tawteen from its precepts. However, the launch of the Madrid Conference in
November 1991 suspended these talks, pending a final regional settlement.
85
Betrayed by their leadership, and ignored by the international community,
the refugees situation was aggravated as Lebanon began curtailing their civil
rights in a desperate attempt to slowly drive them out of the country. This
section will examine the various restrictions that were imposed on a few of the
Palestinians most basic rights.
Education
The educational system in Lebanon was among the first casualties of war.
While Palestinians in Lebanon were among the most educated in the Arab
world before 1982, the countrys civil strife led to a high illiteracy rate among
adult Palestinians residing there.
86
The situation has not improved since then.
Among the various host countries, Lebanon still has the lowest percentage of
its refugee children attending schools. In fact, there are twice as many students
enrolled in Syria than there are in Lebanon, although Syria has fewer refugees
in total.
87
85 Ibid.
87 Sayigh, R., Palestinian Refugees in Lebanon (July 1996), www.arts.mcgill.ca/MEPP/PRRN/
papers/sayigh.html (accessed: 28/10/02) at p. 2.
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145
There are various reasons to explain the decreasing percentage of
attendance in school. Chief among them is the fact that Palestinians are almost
exclusively dependent on UNRWAs decaying services for their education. In
fact, Lebanese legislation restricts access to the countrys official schools by
allowing no more than 10 per cent of the studying seats to foreigners, which
includes Palestinians.
88
Foreigners are also excluded from the College of
Education and the Teachers Training Institution, since the possession of
Lebanese citizenship for at least ten years is a prerequisite to admission.
89
In
2000, the Department for Palestinian Affairs estimated that only 20 per cent
of Palestinian refugees have so far had access to a Lebanese education.
90
High costs and distance further limit access to Lebanese education.
91
The
adoption of Law 392 in April 2002 imposed an increase in tuition fees on all
foreign university students, which includes Palestinians. As a result, they had
to pay nearly five times as much as their Lebanese counterparts.
92
Following
lobbying from NGOs, members of the European Unions Parliament suggested
amendments to the EU-Lebanon Association Agreement in response to the
curtailments of Palestinian civil rights. By December 2002, the Lebanese
government responded by exempting Palestinian refugees from the increased
tuition fees imposed on foreigners.
93
Palestinians remonstrated at the local level as well, when non-registered
displaced Palestinians from 1967 were sentenced to illiteracy. As discussed in
section 1, these individuals and their descendants are non-existent to both
UNRWA and the Lebanese government; their presence in Lebanon is deemed
illegal. Their children were thus prevented from entering UNRWA schools or
Lebanese schools. Their legal status deprived them from their right to an
education, until UNRWA finally bowed to the pressure from representatives
of popular committees in Ein El-Hilweh in 2000.
94
Adding to the legal constraints to Palestinian education, UNRWAs
dilapidated facilities do not provide the type of environment conducive to
studying. Financial constraints meant more reduction in UNRWAs services.
The number of primary schools declined from 87 in 1987 to 73 in 1999.
95
There are only two secondary schools; one in Burj El-Barajneh in Beirut, and
another in Ein El-Hilweh in Sidon,
96
and virtually none in all of northern
89 Ibid, p. 29.
90 Euro-Mediterranean Human Rights Network (EMHRN), Refugees Also Have Rights,
(September 2000), www.euromedrights.net/English/Download/Palrefugees_en.pdf (accessed:
28/10/02) at p. 22.
91 Abu-Habib, L., Education and the Palestinian refugees of Lebanon: A lost generation?, (April
1996), www.arts.mcgill.ca/MEPP/PRRN/papers/abuhabib.html (accessed: 28/10/02) at p. 2.
92 Al-Shahal, N., Al-Tahjir al-Tawi Lil Falastiniyin MinLubnan, Al-Hayat (10 November 2002),
Issue No. 14479 at p. 18.
93 Palestinian Human Rights Organisation (PHRO), Press Release: The EU-Lebanon Association
Agreement: Palestinian Refugees Start Reaping Benefits as Lebanon Succumbs to External
Pressure, (18 December 2002), www.palhumanrights.org/eulebanon.htm (accessed: 25/04/
03).
94 EMHRN, supra n. 89 at p. 23.
146
Lebanon. Although secondary education is not part of UNRWAs mandate, it
has been provided by the agency because of the special needs of Palestinians
in Lebanon.
97
Despite UNRWAs efforts, more needs to be done considering that half of
their schools operate on double shifts, and classrooms can be packed with up
to 60 students at a time.
98
The level of learning is also abysmal with barely 57.4
per cent of UNRWA students passing their intermediate certificate
examinations in 1998-1999, for example.
99
Like UNRWA, the Lebanese
government is partially to blame for this inauspicious state of affairs. Many
students see no point in pursuing their studies when they are legally barred
from entering most professions.
Work
By imposing legal constraints on their right of employment, the Lebanese
government has contributed to the illiteracy and extreme poverty of Palestinian
refugees. The restrictions imposed on Palestinians have been harsh and
discriminatory. While it is fair to have excluded Palestinians from the civil
service or any other type of government employment,
100
it is much less
reasonable to have limited the type of professions they can practise in private.
As noted in section 1, as early as 1951, Palestinians were required to have a
work permit to enter the labour market.
101
In 1962, they were demoted to the
status of foreigners,
102
and on 18 September 1964, Decree 17561 initiated the
process of regulating foreign labour in Lebanon.
103
First, this decree introduced
the principle of reciprocity. Although this principle is not discriminatory, per
se, its application inevitably leads to discriminatory effects vis--vis Palestinians.
This principle grants foreigners the same rights as Lebanese workers, as long
as the legislation in their home state allows for the same rights to Lebanese
citizens residing there.
104
Since Palestinians are stateless, the reciprocity
principle adds insult to injury by excluding them from its scope of application.
This principle has, hitherto, been used to justify the exclusion of Palestinians
from syndicated work and professional unions such as the Medical Doctors,
Pharmacists, and Engineers Unions.
105
However, membership of the Order
of Lawyers is conditional on the possession of Lebanese citizenship for at
97 Khouri, G., As Burdens Grow, UNRWA Lebanon Budget Imperilled, (December 1997),
www.wrmea.com/Washington-Report.org/www/backissues/1297/9712027.html, (accessed:
15/04/03) at p. 1.
99 Ibid.
100 Ibid pp. 20-21. Natour notes how all government employees must be Lebanese citizens who
have been naturalized for at least 10 years.
101 Hallak, supra n. 7 at p. 346 cited in Natour, supra n. 6 at p. 37.
102 PHRO, supra n. 16 at p. 1.
104 Ibid, pp. 164-174. In his book, Natour argues how Lebanese citizens were not even treated as
foreigners in Palestine during the British Mandate and until the creation of the State of
Israel. Hence, it was unnecessary for Lebanon to have applied the reciprocity principle
with regard to Palestinians.
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147
least ten years,
106
a requirement which automatically excludes foreigners. The
reciprocity principle was also used to preclude Palestinians from gaining any
social benefits (Art. 9(4) of the Lebanese Social Security Law of 26/09/63),
despite having to pay social security.
107
In addition, Decree 17561/1964 confirmed the work permit requirement
for all foreign workers. The requirement applies to most fields with the
exception of construction and seasonal work, such as farming.
108
This marked
the beginning of further constraints on foreign labour. Starting with Ordinance
189/1, adopted on 18 December 1982, and up until Ordinance 621/11 adopted
exactly 13 years later, Lebanese authorities have gradually excluded foreigners
from several occupations.
109
Theoretically, the work permit requirement applies uniformly to all
foreigners. In reality, statistics have cast a doubt on Lebanons even-handedness.
In 1991, the Lebanese Labour Ministry issued only 125 work permits to
Palestinians out of a total of 15,000.
110
When Ordinance 621/11 of 1995
exempted a few categories of people from the exigency of a work permit,
111
this did not translate into many changes for Palestinians. Even for those
Palestinians who obtain permits, they still have to compete with about 150,000
workers from Sri Lanka, 60,000 from Egypt and 500,000 from Syria, who can
easily obtain permits due to the reciprocity principle.
112
Palestinians are thus left with little choice. They either remain unemployed,
or work illegally, where they are often exploited as cheap labour. Arguably the
only form of employment available to Palestinians is at UNRWA which, in
May 2000, had no more than 2,440 employees,
113
out of a total Palestinian
labour force of 235,000.
114
Poverty resulting from unemployment made the situation in Lebanons
camps among the most disastrous in the region, at least up until the beginning
of the Second Intifada in September 2000. In 1998, 10.3 per cent of refugees
registered with UNRWA in Lebanon were hardship cases, making it the highest
percentage reported that year in any of the agencys fields of operation.
115
106 Ibid, p. 26.
107 Said, W., The Palestinians in Lebanon: the rights of the victims of the Palestinian-Israeli
Peace Process, 30, no.2, Columbia Human Rights Law Review (Spring 1999), 315 p. 334.
109 Natour, supra n. 28 at pp. 24-26. See also, Palestinian Human Rights Organization (PHRO),
Press Release: A review of the status of Palestinian Refugees in Lebanon, (2002),
www.palhumanrights.org/review.htm (accessed: 25/04/03) at p. 3: ... Palestinians cannot
work in around 73 (46 according to Lebanese resources) different professions.
110 Khashan, supra n. 49 at p. 10. This trend has existed for many years as noted by Natour
(supra n. 6 at p. 177)
111 Palestinian Human Rights Organization (PHRO), Status of Palestinian Refugees in Lebanon
Regarding the Right to Work and Own Property: A closer Look, Hokouk Newsletter, Issue 1,
Vol.2, (April 2003) at p. 4. Article 2 of decision 622/11 exempted the following aliens from
the requirement: (i) those residing in Lebanon since birth; (ii) those whose mother is
Lebanese or who have Lebanese origins; (iii) individuals who have been married to a Lebanese
female for more than a year.
114 Ibid, p. 28.
148
The mental and physical health of Palestinians could only deteriorate amidst
such poverty and despair.
Medical aid
The health crisis is probably the most life-threatening difficulty facing
Palestinian refugees in Lebanon. Many elements have contributed to the
deterioration of the health conditions in the camps. For one, Palestinian
refugees do not have access to state hospitals. Their only options for medical
aid are private hospitals, hospitals run by the Palestinian Red Crescent Society
(PRCS) and UNRWAs subsidies for hospitalisation. The high costs of private
Lebanese hospitals render them inaccessible to the majority of Palestinians.
As for UNRWA, it operates 25 health centres, and has agreements with 13
Lebanese hospitals to provide health and medical services for the registered
Palestinian refugees.
116
Once more, non-registered Palestinians, and their
descendants, are ineligible to receive any medical aid from UNRWA. One
dramatic example, where this has had a fatal consequence, is that of Nasser
Hamids family. Nasser, a registered UNRWA refugee, was married to a Non-
Registered Palestinian (NR). His wife had thus no access to UNRWAs medical
assistance. The agency refused to transfer her to a hospital for a delivery. This
fact, coupled with birth complications, led to the death of their baby within a
few days after birth.
117
Subsidies for hospitalisation have declined due to UNRWAs financial
constraints. Patients over 60 years do not qualify for open-heart surgery or
other life-saving treatments.
118
Furthermore, UNRWA can only subsidise a small
portion of these treatments (up to US$1,500),
119
bearing in mind that an
operation usually costs U.S.$8,000.
120
UNRWA does not pay to treat other serious
diseases such as cancer, kidney failure, thalassemia, leukaemia or epilepsy.
121
These factors cumulate leaving Palestinian refugees to die a slow death from
otherwise preventable diseases. There are also cases of hospitals that will not
release their patients or deceased bodies, until all costs are paid in full.
122
As for the PRCS, it operates four hospitals and nine primary health clinics
in Lebanon. UNRWA and PRCS complement each other in the health sector
with the agency focusing on primary health care and PRCS engaged at the
116 Ghandour, supra n. 80 at p. 154.
117 Palestinian Human Rights Organization (PHRO), Press Release: A newborn dies as an
outcome of being an NR Palestinian Refugee in Lebanon, (6 July 2002), www.
palhumanrights.org/anewborn.htm (accessed: 25/04/03).
118 Right of Return: Joint Parliamentary Middle East Councils: Commission of Enquiry-Palestinian Refugees,
London, Labour Middle East Council, Conservative Middle East Council, Liberal Democrat
Middle East Council, 2001 at p. 186.
120 Koltermann, U., Who really wants them? Palestinians in Lebanon fed up with being a
bargaining chip, (June 1997), www.arts.mcgill.ca/MEPP/PRRN/papers/
JTarticle270697.html (accessed: 31/10/02) at p. 3.
121 Edminster, supra n. 42 at p. 18. See also: Palestinian Return Centre, Wafat fata filistini bimarad
al-talassimiya fi mokhayam burj el-shemali bisabab takaloss khadamat al-unrwa (Death of Palestinian
youth from thalassemia in the Burj el-Shemali camp due to a reduction in UNRWAs services),
www.prc.org.uk (accessed: 31/03/2003).
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149
secondary level.
123
Like UNRWA, PRCS suffers from lack of funds. Suheil
Natour notes that many staff members have left the PRCS because of the
decline of wages, while others are unable to practice their profession in
Lebanon due to legal restrictions, as discussed in the previous section.
124
Adding to the inaccessibility of medical aid, the environmental conditions
in the camp have increased the health risks. A study conducted by Dr. Zeidan
revealed the deplorable environmental conditions in the camps.
125
The study
revealed that improper water disposal and insufficient water supplies facilitate
the propagation of diseases, such as cholera, typhoid, malaria, dysentery and
hepatitis.
126
The Lebanese governments ban on construction has increased
these health risks, as inhabitants of the camps are forced to live in overcrowded
and hazardous homes built in alleys amid sewage and junk yards.
127
Restrictions on construction of demolished camps and the issue of
internally displaced refugees
The policies adopted by Lebanese authorities vis--vis Palestinian camps have
varied depending on the camps locations. Relative to those in the South, the
northern camps of Beddawi and Nahr El-Bared have been spared from harsh
measures.
128
In fact, since 1995, Lebanese authorities have blocked the entry
of building and repair materials into the Rashidieh, El-Buss and Burj El-Shemali
camps which surround the city of Tyre.
129
The situation is similar in the camps
in Beirut (Dbayeh, Burj El-Barajneh and Shatila). Palestinians are unable to
build or reconstruct housing in the Burj El-Barajneh camp, or any of the Tyre
camps, unless they obtain special permits from the Lebanese army.
130
On the
rare occasion where permits are issued by the army, they merely allow 50 per
cent of the requested construction material to enter the camps.
131
Those who
123 Shepherd, S., Health and the Palestinian Refugees in Lebanon, (February 2001), www.
caabu.org/publications/refugee_health.html (accessed: 28/10/02) at p. 2.
125 Zeidan, A.M., Environmental Conditions in Palestinian Camps in Lebanon, (September
1999), www.arts.mcgill.ca/MEPP/PRRN/papers/zeidan.html (accessed: 31/10/02) at p. 1.
Zeidan states that: [t]he hardships facing the refugees include: inhibition of reconstructing
the damaged camps, deterioration of proper living conditions, crowded households,
inadequate safe water sources, absence of proper wastewater disposal and solid waste
management . . .
126 Ibid, p. 4.
127 Ibid.
128 Natour, supra n. 28 at p. 14. According to Natour: Lebanese authorities permit the
establishment of projects to improve the infrastructure, such as the sewage system in Nahr
Al-Barid and the houses of the displaced in Al-Baddawi, which are the two main camps in
the North.
129 Ibid, pp. 13-14. See also Edminster, supra n. 42 at p. 16. Edminster states how the army has
sealed off all roads leading into the southern camps, [except for the main entrance]. Lebanese
soldiers maintain checkpoints at the camp entrances to prevent residents from bringing
unauthorized building material into the camps, which camp residents liken to a siege.
131 Palestinian Return Centre, Dokhul al-Amm al-Sabe ala al-karar al-kadi biadam al-samah lillajiin
bi idkhal mawad al-bina ila mokhayamatihem (The decision prohibiting refugees from bringing
construction material into their camps enters its seventh year), www.prc.org.uk (accessed:
31/03/03) at p. 2.
150
circumvent these measures risk being detained for ten days to one month, in
addition to paying a fine of up to US$320.
132
On one occasion, the Lebanese
army even shot a smuggler as he attempted to bring in some building material
into the El-Buss camp.
133
The restrictions imposed on construction in and around the remaining
demolished camps, in addition to the ban on the reconstruction of the Tal El-
Zaatar, Jisr El-Bacha and Nabatiyeh camps, all of which were destroyed during
the war, have led to an overcrowding in the current 12 camps. These camps
host about 200,000 Palestinian refugees,
134
while they are prepared to
accommodate no more than 50,000.
135
Furthermore, recent reports have
unveiled renovation plans which will inevitably lead to more destruction in
the camps, mainly in Beirut.
136
As noted by Edminster: [a] new highway
currently under construction in Beirut will run through part of the Burj El-
Barajneh refugee camp, resulting in the demolition of some 650 refugee
houses, while yet another highway in Tyre will lead to the destruction of
parts of El-Buss camp.
137
Consequently, house demolitions, building restrictions and evictions
138
have
marked Lebanons policy towards Palestinian refugees. Among the most
vulnerable victims of such policies are the families who have been displaced
from their homes, mainly during the war of the camps.
139
While the Lebanese
government has created a Ministry for Displaced Persons as part of its post-
war reconstruction initiatives, Palestinians once again have reaped minimal
benefits from these developments. In 1993, the Minister for Displaced Persons,
Walid Jumblat, suggested that the government grant UNRWA a land in Iklim
al-Kharruub (Qurayya), and allow it to build a camp that would accommodate
displaced Palestinians and reduce some pressure from the overpopulated
camps of Lebanon. However, this project faced a tide of opposition from
numerous factions in the government that viewed it as a first step towards the
132 Ibid, p. 1.
133 Palestinian Human Rights Organization (PHRO), Press Release: Ban on building materials
continues: Refugee shot near Buss Camp, (7 July 2002), www.palhumanrights.org/
banonbuilding/htm (accessed: 30/04/03).
134 UNRWA, Statistical Profiles, (2000), www.un.org/unrwa/pr/pdf/figures.pdf (accessed:
30/04/03) at p. 3. Along with the Gaza Strip, Lebanon has the highest percentage of camp
residents in all of UNRWAs fields of operations (56 per cent of 376,472 Palestinians registered
with UNRWA in the year 2000 or 210,715 refugees).
136 Koltermann, supra n. 119 at p. 5. Koltermann notes how the Lebanese government is drawing
plans for the Beirut 2000 project that smoothly define three refugee camps as building
ground.
138 Ibid: Beginning in August 1994, authorities evicted 118 displaced Palestinian families from
newly constructed housing in Ein El-Hilweh refugee camp near Sidon. The government
also demolished the makeshift housing of some 750 displaced Palestinian families in Sidon,
displacing them once more.
139 Chaaban, H. A., Al Mokhayamat al Filistiniya fi Lubnan : Min al Dhyafa ilal tammyiz (Palestinian
Refugees in Lebanon: From Hosting through Discrimination), Jerusalem, PASSIA, 1st ed.,
2002 at p. 106. In 1991, studies revealed an estimate of 3,000 displaced Palestinian families,
or 19,500 individuals.
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151
integration of Palestinians. The project was thus doomed to failure ab initio.
140
Instead, Lebanon maintained its vindictive restrictions on the camps, under
the pretext of promoting Palestinians right of return and rejecting tawteen . It
even exacerbated the difficulties by closing down displacement centres.
141
With nowhere to go, and camps populated beyond capacity, such policies
can only be interpreted as desperate measures aimed at driving Palestinians
out of the camps, if not out of Lebanon. The latest law preventing Palestinians
from owning property is an addendum to Lebanons greater scheme of
gradually forcing Palestinians into exile.
Ownership rights
Decree 11614 of 4 January 1969 distinguished the rights of Lebanese citizens
from those of foreigners by making foreign ownership of real estate property
conditional on the acquisition of a licence from the Finance Ministry.
142
This
decree provided a short-lived equal treatment for all foreigners, including
Palestinians. However, on 21 March 2001, an amendment to this decree (Law
296) introduced discriminator y provisions to Lebanons ownership
legislation.
143
The Palestinians statelessness was, once again, used to deprive
them of certain rights and privileges, reserved to all other foreigners. Law 296
states:
[I]t is not permissible to have any rights in real estate property, by anyone who does
not have the citizenship of a recognized state, or by any person if ownership of such
property is contradictory with the constitutional precepts concerning the rejection
of integration (tawteen).
(authors translation).
Although the end result namely the exclusion of Palestinians from the laws
application is analogous to the one obtained by using the reciprocity
principle, this law used explicit language to single out Palestinians.
As noted earlier, Lebanon had formally rejected tawteen in the Taif accords
that brought an end to Lebanons civil war. This negation of tawteen was then
formally incorporated in Lebanons post-war constitution.
144
which may explain
the explicit reference to both integration/tawteen and the constitution in
the text of Law 296. Post-war Lebanon has, thus, become more overt in
expressing its position vis--vis tawteen, a position that will be discussed in detail
in section 3. The fact that Law 296 has been severely criticised for being
inherently discriminatory and unconstitutional (as will be discussed below)
140 Ibid, pp. 107-109. See also Sayigh, supra n. 57 at p. 42. Sayigh states that the Qurayya affair
roused such a storm of protest that cabinet unity was threatened and the project had to be
shelved.
141 Edminster, supra n. 42 at p. 16. Edminster notes how the government closed down seven
displacement centers in Beirut in 1995, thus displacing 377 refugee families for the second
or third time.
143 Law 296 of April 21, 2001 cited in Chaaban, supra n. 138 at p. 277.
144 Sayigh, supra n. 57 at p. 43.
152
can explain why Lebanon refrained from using such explicitly discriminatory
language in subsequent legislation. For example, in Law 392 of April 2002
(see section 2), Lebanon initially imposed the same tuition fees on all
foreigners, including Palestinians.
Subsequent to the adoption of this law, Palestinian refugees no longer had
the option of purchasing property outside the camps in order to accommodate
the natural expansion of their families, and evade the unhealthy and squalid
environment of overcrowded refugee camps. Rosemary Sayigh notes that this
forced Palestinian refugees to rent at a time of deepening impoverishment,
with the government preparing a bill that will free rents completely within
twelve years.
145
The ban on Palestinian real estate ownership has had other severe
repercussions on the refugee population. Some 5,000 families suddenly found
themselves unable to register the property they were purchasing through the
payment of regular instalments.
146
Others were unable to amend the
registration records for property that they inherited from their deceased
Palestinian refugee fathers, even if their mothers were Lebanese.
147
This left
numerous families with their proprietary rights caught in a legal jumble. The
situation was particularly aggravated in Sidon where 60 per cent of the property
is owned by Palestinians, impelling the Sidon Chamber of Commerce to take
the lead in protesting against Law 296.
148
Sidon was the scene of another devastating consequence stemming from
Law 296. In recent months, Ein El-Hilweh camps only cemetery lacked burial
space. Unable to purchase land themselves, Palestinians sought the help of
Sidons Mufti. The Mufti agreed to purchase land on behalf of Islamic waqf
in order to provide Palestinians with space to bury their loved ones.
149
Although a few Lebanese parliamentarians attempted to quash this law,
their calls were unheeded.
150
Future initiatives to pressure Lebanon into
reversing Law 296 remain necessary despite this drawback. As discussed in
the previous section, the lobbying efforts of NGOs did bear fruit when
complaints were taken to international forums, namely the European Union.
Such successes pave the way for increased lobbying efforts from local and
international organisations.
145 Sayigh, R., No Work, no Space, no Future: Palestinian Refugees in Lebanon, (August 2001),
www.arts.mcgill.ca/MEPP/PRRN/papers/sayigh2.html (accessed: 31/10/02) at p. 2.
147 Chaaban, supra n. 138 at p. 117.
149 Palestinian Return Centre, Qarar Man al-Tamaluk fi Lubnan Yamna al-Lajiin al-Falastiniyin
min Dafn Mawtahum (The decision prohibiting Palestinians from owning property prevents
Palestinians from burying their dead), www.prc.org.uk (accessed: 30/04/03).
150 Sayigh, supra n. 144 at pp. 2-3. Sayigh notes how: [t]he requisite twelve parliamentarians
signed a request to the Majlis al-Dastouri (Constitutional board) to review the exclusionary
clause because of its inconsistency with those parts of the Lebanese constitution that ban all
forms of discrimination, [yet] the Majlis affirmed the clause.
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Freedom of association
Lebanese law stipulates that NGOs have to be registered under the names of
Lebanese citizens, employ Lebanese staff and provide services principally
for the Lebanese people.
151
This law effectively prevents local organisations
from working solely to improve the status of Palestinian refugees. Thus, local
NGOs attract the governments scrutiny if they lobby extensively for the rights
of Palestinians. They risk being accused of violating Lebanese law and may
even be forced to shut down if they are found working exclusively for
Palestinians.
152
Travel: the Visa Restriction Scheme
Although revoked in 1999, the main travel restrictions imposed on Palestinian
refugees had led to a humanitarian crisis of grave proportions. In September
1995, Libyas leader, Muammar Qaddafi, decided to expel all Palestinians
from Libya, many of whom had Lebanese laissez-passer (travel documents).
153
Fearing the influx of thousands of Palestinians, Lebanon promptly reacted by
adopting Decree No. 478 on 23 September 1995. This decree imposed a visa
restriction scheme requiring Palestinians with a Lebanese laissez-passer to obtain
re-entry visas prior to their arrival into Lebanon.
154
Simultaneously, Lebanese
embassies abroad were instructed not to issue visas or new travel documents
unless they obtained a case-by-case approval from the Interior Ministry.
155
The threat of incoming Palestinians thus resulted in new harsh legal
measures aimed at controlling Palestinian entry into Lebanon. It also prompted
racist comments, most notably the one made by Lebanons Tourism Minister,
Nicolas Fattush, who compared Palestinians to human waste being dumped
on Lebanon.
156
The impact of the visa restriction scheme was not reserved to
Palestinians expelled from Libya. While it is estimated that 30,000 Palestinians
resided in Libya in 1992 (some with non-Lebanese travel documents)
157
, Suheil
Natour points out 100,000 Palestinians forced into a de facto exile as a result of
Lebanons visa scheme.
158
After separating families and forcing others into
exile, the visa restriction scheme was finally reversed on 12 January 1999, when
President Emile Lahoud declared that Palestinians with Lebanese laissez-passer
were free to travel without the burden of exit and re-entry visas.
159
152 Ibid, p. 21. [I]n 1997, the association for Vocational Training and Technical Committee was
investigated after authorities from the Ministry of Interior received an anonymous tip-off,
suggesting that they were only working to help Palestinian refugees.
153 Edminster, supra n. 42 at p. 13. For more on Libyas treatment of Palestinians, see Takkenberg,
supra n. 5 at p. 166.
156 Ibid, p. 14.
154
3 LEBANONS PERSPECTIVE ON TAWTEEN AND ITS
OBLIGATIONS VIS--VIS PALESTINIAN REFUGEES
As discussed in section 1, several factors have contributed to the deteriorating
status of Palestinians in Lebanon. While UNRWAs shortcomings and
PLOs desertion added to the hardship of Palestinian refugees, Lebanons
curtailment of their civil rights only reinforced their suffering and codified
their marginalisation. With minor exceptions, Lebanons containment of
Palestinians proceeded unhindered. Lebanon used its rejection of tawteen as a
pretext to impose restrictions on Palestinians civil rights. These restrictions
aroused claims of a hidden agenda pursued by Lebanon and aimed at driving
Palestinians out of the country.
This section will determine if the draconian measures adopted by Lebanon
violate binding norms of international law. It will also discuss Lebanons current
stance vis--vis Palestinians and will outline a few alternative temporary
solutions which were suggested as a way out of this impasse.
Lebanons obligations towards Palestinian refugees in international law
Casablanca Protocol (1965)
Along with the dossier on Jerusalem, and the illegal occupation of Arab land,
the issue of refugees has been a focal point for the Arab League. It has tabled
the issue in its debates and conferences, and adopted a series of resolutions
affecting their status and treatment in member states.
160
These resolutions
led to the adoption of the Protocol on the Treatment of Palestinians in the
Arab States of 11 September 1965, also known as the Casablanca Protocol.
161
The Protocol is a multilateral agreement which was ratified by nine state-
members of the League. It is binding on the ratifying states although neither
the Protocol nor the Arab Leagues Charter provide for enforcement
mechanisms in cases of violation.
The Casablanca Protocol stipulates in its first article that [w]hile keeping
their Palestinian nationality, Palestinians presently residing in the territory of
shall be accorded the same treatment as regards the right to do business (work)
and to be employed as if they were nationals. (emphasis added). By explicitly
stating the necessity for Palestinians to keep their nationality, the Protocol
rejects tawteen of Palestinians in Arab countries (in the sense of their
naturalisation), thus implicitly reaffirming the Palestinians right of return.
While refuting tawteen in the Arab world, the Protocol advocates the civil rights
of Palestinians by calling on member states to assimilate their status to that of
local nationals. Hence, the League affirms that tawteen and the guarantee of
civil rights for Palestinians are not mutually exclusive.
160 Takkenberg, supra n. 5 at p. 132. Takkenberg notes that: [s]ince 1952, the Council of Ministers
of the Arab League has adopted a series of resolutions pertaining to the treatment of
Palestinian refugees in its member states.
161 See ibid, Annex 3, p. 374 for the text of the Protocol.
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In its first article, the Protocol demands equal rights to work and employment
for Palestinians in Arab countries. The remaining four articles focus on right
to mobility, residency and the issuance of travel documents. The Protocol was
ratified by Lebanon with reservations to its first three Articles.
162
The
reservations to Articles 2 and 3 do not negatively impact the rights of Palestinian
refugees in Lebanon. Lebanons reservation on Article 1 has, however, qualified
their right to work by stating that their employment opportunities will depend
on Lebanons social and economic conditions. At that point Lebanon had
not yet used tawteen as a pretext for limiting Palestinians right to work.
As discussed in section 1, Palestinians were viewed as foreigners since 1962,
and even as early as 1951 when they were prevented from entering the labour
market without a work permit. Subsequent laws have also limited Palestinians
employment opportunities by, inter alia, introducing the principle of reciprocity
which, as discussed in the previous section, specifically discriminates against
stateless Palestinians. These constraints on Palestinians right to work have
been imposed irrespective of Lebanons social and economic conditions.
Lebanon is, thus, in violation of Article 1 which calls for the equal treatment
of Palestinians and nationals in terms of employment.
Lebanon has also restricted Palestinians rights to mobility and residency
during the visa scheme (see section 2). Their residency and the issuance of
travel documents have also been affected by the discrepancies between
UNRWAs records and official governmental ones, as discussed in section 1.
This leads us to conclude that Lebanon is in violation of the Casablanca
Protocol. Palestinian researcher Abbas Shiblak notes many [Arab states], such
as Lebanon and the Gulf states, never fully implemented the 1965 Protocol
.
163
In 1991, Arab League Resolution 5093, which was adopted by Lebanon,
officially revoked the Protocol.
164
Refugee Law and Law on Statelessness
Refugee Law and the Law on Statelessness are mainly governed by the 1951
Convention Relating to the Status of Refugees (1951 Convention), the Protocol
Relating to the Status of Refugees of 1967 (1967 Protocol), and the 1954
Convention Relating to the Status of Stateless Persons (1954 Convention).
Two elements render these documents inapplicable to Palestinian refugees
in Lebanon. First, none of these have been ratified by Lebanon. Hence, these
documents do not impose any binding legal obligation on Lebanon with
regards to its treatment of refugees.
Second, Palestinians are excluded from these Conventions as well as from
the UNHCR Statute. The Statute was annexed to General Assembly Resolution
428 (V)
165
which effectively created the United Nations main agency for
refugees (UNHCR) in 1950. Paragraph 7(c) of this Statute does not extend
162 Ibid p. 376 for the text of the reservations.
163 Shiblak, A., Residency Status and Civil Rights of Palestinian Refugees in Arab Countries,
XXV, no.3, Journal of Palestine Studies (Spring 1996), 36 at p. 39.
164 League of Arab States, 1991, Resolution 5093, CSPHAC. Ibid p. 42.
165 Statute for the United Nations High Commissioner for Refugees, GA Res. 428 (V), 14 December
1950.
156
UNHCRs mandate to a person who continues to receive from other organs
or agencies of the United Nations protection or assistance, namely UNRWA
(see section 1).
166
For the same reasons, Palestinian refugees who have access
to UNRWA are denied the legal protection provided by the above-mentioned
Conventions and their additional Protocols, through Article 1(D) of the 1951
Convention, and Article 1 of the 1954 Convention.
167
Universal Declaration of Human Rights
Lebanon violates numerous articles of the Universal Declaration of Human
Rights (UDHR). For instance, Wadie Said argues that the visa restriction
scheme (see section 2) is a clear violation of Article 9 of the [UDHR] which
states that [n]o one shall be subjected to arbitrary arrest, detention, or exile.
The denial of a re-entry permit is a de facto forcing of Palestinian refugees who
reside abroad into arbitrary exile from their families and loved ones in
Lebanon.
168
Other violations include, inter alia, that of Article 17 on the right
to own property, and Article 23 on the right to work.
It is important to note that the UDHR provisions do not create binding
legal obligations. The UDHR is regarded as a statement of a relatively distant
ideal . [It] merely recommends states to keep it in mind .
169
The UDHR
may only create binding legal obligations when the principles it embodies
become part of customary international law.
The Nicaragua v. USA case,
170
in the International Court of Justice,
demonstrates that customary international law is composed of two elements.
First, there must be a general practice by states (objective element) and
second, an intent to be bound by this practice by accepting it as law (subjective
element also called opinio iuris).
171
By applying these principles to the case at
bar, it is hard to conclude that there is sufficient general practice coupled
with opinio iuris that would make of, inter alia, the rights to employment or
education, binding norms of customary international law. Arguably, the
prohibition of slavery (Article 4) and torture (Article 5) are the only principles
which have become part of customary international law. Once again, Lebanon
cannot be held accountable for violating the non-binding provisions of the
UDHR.
166 For a more detailed discussion of UNRWAs mandate, see Takkenberg, supra n. 5 at pp. 28-
32, and pp. 280-304. Another U.N. body, the United Nations Conciliation Commission for Palestine
(UNCCP) was endowed with a protection mandate for Palestinian refugees. It has however
become obsolete since 1964. For a more thorough discussion of the UNCCP, see Takkenberg
supra n. 5 at pp. 24-28.
167 See ibid, pp. 86-131 for a discussion of the 1951 Convention, and pp. 175-196 for a discussion
of law relating to stateless persons. For a more detailed discussion of the protection gap for
Palestinian refugees, see Akram, supra, n. 75.
168 Said, W., supra n. 106 at p. 338.
169 Malanczuk, P., Akehursts Modern Introduction to International Law, London and New York,
Routledge, 7th ed., 1997 at p. 213.
170 Nicaragua v. USA (Merits), ICJ Rep. 1986, 14, at p. 97.
171 Malanczuk, supra n. 168 at p. 39.
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The Two Covenants
Lebanon ratified the International Covenant on Civil and Political Rights of
1966 (ICCPR) and the International Covenant on Economic, Social and
Cultural Rights of 1966 (CESCR). Thus, these create binding legal obligations
on Lebanon.
Lebanon has either violated or is in violation of Articles 12, 19, 21, 22 and
24(3). Article 12 provides for an individuals right to liberty of movement.
This freedom was severely curtailed following the imposition of the visa
restriction scheme. As discussed in section 1, other restrictions on movement
were imposed on Palestinians living in the camps during the civil war, and can
be imposed at any time if the Lebanese military decides to isolate the camps.
Article 19 provides for the freedom of expression, which has also been
undermined during the war when Palestinian political activity was severely
scrutinised, as discussed in section 1. Lebanese scrutiny also impeded the
Palestinians right of peaceful assembly in breach of Article 21 (see section 1).
More importantly, Lebanon is in violation of Article 24(3) which stipulates
that [e]very child has the right to acquire a nationality. Since children born
to stateless Palestinian parents remain without any nationality, Lebanon
continues to breach its obligation under this article.
Against this backdrop, there are no legal remedies for Palestinian refugees.
Lebanon has not ratified the First Optional Protocol to the ICCPR (1966),
which enables the Human Rights Committee (HRC), set up in Part IV of the
ICCPR, to receive individual claims for violations of this covenants provisions.
Lebanon will thus get away with a slap on the wrist since individuals are
precluded from bringing any claims to the Committee for breaches of
Lebanons obligations. Lebanon submitted its latest report to the HRC in
1996 as per Article 40 of the ICCPR. In it, Lebanon denied any violations of
foreigners rights by asserting that no restrictions were imposed on foreigners
with regards to freedom of conscience, freedom of association, the individual
use of national languages, freedom of worship or the celebration of religious
or secular holidays.
172
The HRCs concluding remarks failed specifically to
condemn the violations of Palestinian refugees rights. However, in its
concluding report, the HRC recommended that Lebanon:
. . . give serious and urgent consideration to ratifying, or acceding to, the first Optional
Protocol to the Covenant, as a means of strengthening the system of guarantees for
the protection of human rights.
173
The situation is slightly different with the CESCR. There are no direct remedies
available in this covenant. While Article 2(2) of the CESCR requests ratifying
states not to discriminate on the basis of religion or national origin, among
other things, Article 2(3) gives some leeway for developing countries with
regards to their obligations vis--vis non-nationals. This paragraph stipulates
that:
172 Second periodic report of States parties due in 1988: Lebanon, 22/11/96, CCPR/C/42/Add.14, at
para. 8.
173 Concluding observations of the Human Rights Committee: Lebanon, 01/04/97, CCPR/C/79/Add.78,
at para. 29.
158
[d]eveloping countries, with due regard to human rights and their economy, may
determine to what extent they would guarantee the economic rights recognised in
the present Covenant to non-nationals.
Lebanon may argue that many of the measures it takes, such as imposing
work permit requirements on foreigners, are all necessary considering the
economic difficulties it has to face in its reconstruction phase. This, however,
cannot justify the application of the reciprocity principle which effectively
puts stateless persons, such as Palestinians, at a disadvantage when their status
demands increased legal protection and safeguards. As such, Lebanon is at
least in violation of Article 9 which recognises an individuals right to social
security, a right from which Palestinians are deprived due to the reciprocity
principle (see section 2).
A writer at the Hourriah Magazine has also suggested that giving Palestinians,
who are only present in Lebanon on a temporary basis, access to the labour
market, could actually benefit Lebanons economy. Hence, Lebanon cannot
use Article 2(3) as a pretext to evade from its obligations vis--vis Palestinians.
He concludes that their right to work, as per Article 6, is effectively violated by
Lebanon.
174
Albeit an isolated interpretation of Lebanons obligations vis--
vis Palestinians as per the CESCR, it could still be convincing considering the
amount of foreign workers currently flooding Lebanese markets (see section
2) who are not deemed damaging to its economy.
Convention on the Elimination of All Forms of Racial Discrimination
Lebanon ratified this Convention (CERD) in 1971. However, Article 1(2) of
the CERD stipulates that:
[t]his Convention shall not apply to distinctions, exclusions, restrictions or
preferences made by a State Party to this Convention between citizens and non-
citizens.
Thus, it cannot be used to criticise Lebanon for its treatment of Palestinians.
The Committee on the Elimination of Racial Discrimination has nonetheless
commented on the Palestinian situation in Lebanon. The most recent report
submitted by Lebanon to the Committee as per Article 9 of the CERD was in
March 1998. In its concluding observations on Lebanons report, the
Committee recommended that Lebanon:
. . . take all appropriate measures, including those of a legal nature, to fully guarantee
access to work and equitable conditions of employment to all foreign workers,
including Palestinians.
175
174 Aashiem, P., A summary study to a minor field study for The Palestinian Refugees and the
Right to Work in Lebanon, www.group194.org/english_1/files/default.asp (accessed: 30/
10/02) at p. 21.
175 Concluding observations of the Committee on the Elimination of Racial Discrimination: Lebanon, 30/
03/98, CERD/C/304/Add.49, at para. 24.
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Lebanons stance towards Palestinians
According to Rosemary Sayigh, there are two declared policies vis--vis
Palestinians and an implicit one. The declared policies are the reestablishment
of state control over the refugee community and refusal of tawtin,
176
while
the undeclared one consists of encouraging Palestinian emigration through
the intensification of various pressures.
177
Palestinian refugee camps have been consistently perceived as enclaves of
insecurity and lawlessness; a situation calling for the state to assert its rule
over the camps. Officials of the Lebanese government have perpetuated this
idea. In September 2000, the current Lebanese President, Emile Lahoud,
alluded to the weaponry in the camps as a potential hazard to a precarious
peace.
178
Former President Elias Hrawi demanded the U.N.s permission to
enter the camps in order to demilitarise them.
179
By claiming that Palestinian
camps serve as a refuge for outlaws, Lebanese politicians and the media have
fuelled public opinion over the threat of camp re-arming;
180
a threat which
lacks any factual grounds.
181
This incitement can only serve to marginalise the
Palestinians, thus bolstering the publics opposition to tawteen.
Lebanon also has its own share of problems with 450,000 displaced persons
at the end of the civil war,
182
an unstable economy and a confessional power-
sharing system. Combined, these elements render the Palestinians a convenient
scapegoat for Lebanese ills, further tilting the balance against tawteen.
Lebanons confessional system is particularly relevant in explaining the publics
stance. Current estimates put the number of Palestinians in Lebanon at
370,000, or 10 per cent of the population
183
, a majority of whom are Sunni
Muslims. Their naturalisation is thus viewed as threatening Lebanons
precarious sectarian balance. This explains the explicit rejection of tawteen in
the Taif agreement. It also accounts for the discrepant views on tawteen among
Lebanons sects. While 66 per cent of Maronites believe that another civil war
would break-out if resettlement was imposed, only 22 per cent of Sunnis share
that view.
184
Politicians exaggerate the threat Palestinians pose to the countrys stability,
by inflating their number up to 600,000.
185
What is claimed to be a heavy
177 Ibid, p. 43.
178 Right of Return: Joint Parliamentary Middle East Councils: Commission of Enquiry-Palestinian Refugees,
supra n. 117 at p. 202.
179 Chaaban, supra 138 at p. 119. See pp. 119-129 for other quotes by Lebanese officials and
other important figures.
180 Sayigh, R., Palestinian Refugees in Lebanon: Implantation, Transfer or Return?, Vol. VIII,
no. 1, Middle East Policy (March 2001), 94 at p. 94 and p. 102.
181 Natour, supra n. 28 at p. 17. Natour notes how the state exercises its complete authority over
the camps, hence refuting any possibility for Palestinians to re-arm, assuming they had the
intention of doing so.
183 UNRWA, supra n. 133. In June 2000, UNRWA had 376,472 registered Palestinians in Lebanon
out of a total Lebanese population of approximately 3.7 million.
184 Haddad, S., The Palestinian Predicament in Lebanon, (September 2000), www.
arts.mcgill.ca/MEPP/PRRN/papers/haddad2.html (accessed: 31/10/02) at pp. 3-4.
160
burden is once again used to justify the unfaltering opposition to tawteen.
Current Prime Minister Rafiq al-Hariri confirmed this view back in 1998:
Lebanon will never, ever integrate Palestinians. They will not receive civic or economic
rights or even work permits. Integration would take the Palestinians off the shoulders
of the international agency which has supported them since 1948.
186
An undeclared policy of pushing Palestinians out of Lebanon lies beneath
the marginalisation of Palestinians, the official incitement against them and
the curtailment of their civil rights. Rosemary Sayigh states that the Palestinians
civic rights are constricted by laws and practices aimed though this has
never been explicitly stated at making life so unbearable that many leave.
187
Lebanon adopted this unwelcoming attitude since 1982,
188
and it got amplified
in post-war, post-Oslo Lebanon. Some officials have even been more explicit
about their plans to encourage Palestinian emigration. In 1994, Faris Buwayz,
a former Lebanese Foreign Minister, proposed a resettlement solution which
would see 20 per cent of Palestinians move to the new autonomous areas in
Gaza and Jericho, 25 per cent rejoin their families in other countries, and the
rest be absorbed by countries such as Canada, Australia and the Arab Gulf
states .
189
With Lebanon toughening its stance against tawteen and increasing its
restrictions on refugees, the current precarious situation begs for alternative
temporary solutions, until a permanent one is achieved in accordance with
Resolution 194. Peace negotiators must thus address this matter with urgency,
instead of constantly relegating it to final status talks.
A way out of this impasse
Resettlement schemes
Resettlement has always been viewed as an alternative to the implementation
of the right of return. This has been predominantly the Israeli position, which
pondered various resettlement plans such as the pre-Qaddafi Libya scheme in
1950-1958, the El-Arish Sinai plan in 1956-1957, as well as resettlement to
various Latin American countries.
190
The United States has also played a part
in marketing the resettlement of Palestinians, which included proposals for
their forced local integration in host countries.
191
186 Supra n. 183 at pp. 4-5.
188 Brynen, R., Imagining a Solution: Final Status Arrangements and Palestinian Refugees in
Lebanon (1997), www.arts.mcgill.ca/MEPP/PRRN/papers/brynen2.html (accessed: 31/
10/02) at p. 7.
189 Immigration and Refugee Board Canada, Lebanon Reconstruction and Security, www.
irb.gc.ca, (accessed: 20/05/03) at section 4.2.
190 Masalha, N., The Palestinian Refugee Problem: Israeli Plans to Resettle the Palestinian
Refugees 1948-1972, (1995), www.shaml.org/publications/monos/mono2.html (accessed:
15/04/02).
191 Peteet, J., From Refugees to Minority: Palestinians in Post-War Lebanon, (September 1996),
www.arts.mcgill.ca/MEPP/PRRN/papers/peteet.html (accessed: 31/10/02) at p. 5. Peteet
notes that [t]he US and Israel may force Lebanon to naturalize the refugees as part of a
peace settlement that would then reward Lebanon with reconstruction funds and a lifting of
the US travel plan.
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Resettlement schemes resurfaced more recently, with the same principal
actors (the United States and Israel) trying to disperse Palestinians across the
globe, instead of implementing their right of return. Oslo had, in fact, excluded
Resolution 194 from its scope. It focused solely on solving the problem of
internally displaced Palestinians by establishing a Continuing Committee
which aimed at reaching an agreement on the modalities of admission of
persons displaced from the West Bank and Gaza Strip in 1967 (Article XII).
However, less than 1 per cent of the Palestinian refugees in Lebanon had
family origins in the West Bank or the Gaza Strip.
192
The return of the remaining
99 per cent was thus ignored by the architects of Oslo. This exclusion explains
why post-Oslo proposals have specifically targeted Palestinian refugees in
Lebanon since they are the least likely to be allowed to return.
The most notorious of these mostly American and Israeli unofficial
resettlement schemes was suggested in late 1993. It proposed to resettle
Palestinians in Iraq in return for an end to the sanctions.
193
In 1997, another
scheme circulated in the US Congress. It involved the transfer of Palestinians
to six Gulf countries.
194
Both proposals were categorically rejected by the Arab
countries in question. A more recent informal plan projected the resettlement
of Palestinians to al-Azraq camp in Southern Jordan.
195
A construction project
by the United Nations Development Programme in Al-Azraq heightened
suspicions among refugees. Shortly before the war on Iraq in 2003, refugees
thought that they would be transferred to the camp as soon as the war
erupted.
196
Recent political developments may well lead to a burgeoning of
other resettlement schemes.
Resettlement plans run counter to international law for they totally disregard
the demands of the refugees themselves, whose right to chose between
compensation and return is clearly encapsulated in Resolution 194.
197
They
also ignore the interests of the countries involved. Their sole aim is to absolve
Israel from its legal obligation towards these refugees.
As a permanent solution, resettlement would set a dangerous precedent in
international law whereby military might trumps individuals right to return.
It may be proposed, however, as a temporary solution, provided that
Palestinians are guaranteed their civil rights in resettlement countries and
assured that their residence, and even naturalisation, will not preclude them
from exercising their inalienable right of return when the political time is
ripe. Once again, the guiding principle should be the choice of the refugees,
who have so far expressed contempt towards any plans for their resettlement.
198
192 Brynen, supra n. 187 at p. 6.
193 Drake, L., Palestinian Refugees in Lebanon: The Walls of History are Closing in, (February
2000), www.washington-report.org/backissues/0100/0002011.html (accessed: 31/10/02) at
p. 3.
194 Ibid.
195 Ibid.
196 Ess, K., Israels continued domination and destruction in the Bethlehem area, (February
2003), www.electronicintifada.net/v2/article1162.shtml (accessed: 29/05/03).
197 Quigley, J., Compensation for Palestinian Refugees: Initial Comments, (July 1999),
www.arts.mcgill.ca/MEPP/PRRN/quigley.html (accessed: 06/02/03) at p. 1. Quigley
confirms that [E]ach displaced person is entitled to decide individually about being
repatriated, and each is entitled to decide individually about acceptance of compensation.
198 Drake, supra n. 192 at p. 4.
162
Green Card
The idea of a Green Card was first proposed by Nawaf Salam. Salam suggests
the creation of a new category in Lebanese law which would allow for:
. . . long-term residence permits, similar to permanent residency of the United States
(Green Card), and the French Permis de long sjour. Agreements will have to be
concluded between Lebanon and the PNA providing for reciprocity in the areas of
employment social security, and taxation.
199
Clearly this proposition is viewed as part of a durable solution in which a
Palestinian state would be created and Lebanon would be forced to absorb
Palestinians.
200
The pragmatic view would predicate that the world would
have to accommodate to Israels demographic needs and share the burden
of integrating Palestinian refugees. This position, once again, subjects the
right of return to the whims of Israel, the original perpetrator of the crime,
while denying the victims their right to choose to return to the homes from
which they were evicted.
Like resettlement, the Green Card is reasonable as a temporary solution.
In this case, it would reassert the Palestinians distinct identity, by falling short
of naturalisation; while demanding their civil rights and equal treatment with
nationals of host states. This would simply amount to a revival of the principles
enshrined in the Casablanca Protocol. It would be an ideal interim solution if
Arab states had the will to adopt it.
CONCLUSION
Palestinian refugees legal status in Lebanon has evolved throughout the years.
The official Lebanese position vis--vis Palestinians went from brotherly
welcome to outright resentment and isolation. Various factors have contributed
to the shift in Lebanese policy and continue to influence it to this day. These
are Lebanons confessionalism, attempts at integration (tawteen) of Palestinians
in Lebanon, and Palestinian resistance until 1982; more recently, camp
militarisation. As discussed in section 2, this policy was translated into various
legal restrictions on the rights of Palestinians.
This article further outlined how UNRWAs financial difficulties and the
PLOs political blunders have all contributed to the deplorable state of affairs
of Palestinians refugees. Lebanon surely shares the responsibility, but it is not
the only party that has the moral and legal duty of redressing injustice against
Palestinians.
There are three main directions to be adopted until a permanent solution
to the refugees predicament is reached in accordance with Resolution 194.
At the international level, legal protection must be provided to Palestinian
199 Salam, N.A., Between Repatriation and Resettlement: Palestinian Refugees in Lebanon,
XXIV, no.1, Journal of Palestine Studies (Autumn 1994), 18 at p. 25.
200 Abd-al-Samad, N., Investigative Report: Palestinians in Lebanon, (April 1995),
www.arts.mcgill.ca/MEPP/PRRN/papers/majallah.html (accessed: 31/10/02) at p. 2.
Estimates show that Lebanon will find itself compelled to absorb at least 200,000 of them.
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refugees who are specifically excluded from the UNHCRs mandate and the
1951 Convention, either by reviving the UNCCP (see n. 165) or including
them in the 1951 Convention and the UNHCRs Statute. The debate over
international protection is, however, beyond the scope of this article. Suffice
it to quote Takkenbergs conclusion that since UNRWA was not provided
with an explicit protection mandate in respect of Palestinian refugees, those
residing within UNRWAs area of operations would not be able to benefit
from formal protection arrangements that are in principle available to all
other refugees in the world.
201
As a consequence of this lack of legal protection, Palestinians do not have a
U.N. body to exert pressure on host states in order to safeguard their rights,
as UNHCR does for other refugees. Until international legal protection is
achieved, NGOs will have to lobby the Lebanese government to respect its
obligations in international law. It will be mostly up to international NGOs to
take up this challenge since local ones face considerable pressure when it
comes to advocating for Palestinian civil rights (see section 2). Two reasons
render the European Union the most appropriate forum for international
NGOs to bring up the case of Palestinian refugees. First, the lack of more
favourable alternatives, the most obvious ones being the United States, which
is clearly biased considering its close relationship with Israel, and the Arab
League which is unable to enforce its own resolutions. Secondly, a successful
precedent in the European Union was established with Law 392 (section 2).
The European Union can exercise its leverage power via the EU-Lebanon
Association Agreement, which was officially ratified in November 2002. Article
2 of this Agreement provides for the respect of human rights by Lebanon.
The European Union often supplements its Association Agreements with
Motions for a Resolution that call upon the parties to the Agreement to respect
human rights, in addition to suggesting recommendations. The European
Union drafted one such motion to supplement the EU-Lebanon Association
Agreement. The motion encourage[d] the Lebanese Authorities to
implement this new Association Agreement in a way that could also benefit
the hundreds of thousands of Palestinian people living in the country.
202
Amendments must be added to this motion since it fails to request that
Lebanon respects its obligations in international law. Amendments must focus
on the violations of the ICCPR and the CESCR since these two covenants
apply to Palestinians and have been ratified by Lebanon. The European Union
must follow up with economic pressure to ensure the effective enforcement
of the motion. Arguably, these changes will not find much resistance
considering that the majority of Lebanese, in all sects, support the grant of
civil and social rights to Palestinians.
203
However, Lebanons media and officials
must refrain from incitement against Palestinians.
201 Takkenberg, supra n. 5 at p. 315. See also Akram, S.M., Temporary Protection and its
Applicability to the Palestinian Refugee Case, (June 2000), www.badil.org/Publications/
Briefs/Brief4.pdf (accessed: 02/06/03).
202 PHRO, supra n. 16 at p. 4.
203 Haddad, supra n. 183 at p. 3.
164
As for the PLO, it has clarified its position by transferring the responsibility
for Palestinians in Lebanon to UNRWA (see section 1). Besides, as discussed
in section 2, Lebanon has suspended all normalisation talks with the PLO
since the beginning of the peace process in 1991. Little has changed in the
Palestinian leadership despite talks of reforms, and hence little can be expected
particularly in terms of securing Palestinian refugees rights. Since Oslo, the
leadership has arguably undermined the refugees right of return by using it
as a political bargaining chip.
Lastly, international donors must focus on UNRWA which has suffered severe
budget cuts since Oslo. In turn, UNRWA must divide its funds in a fair way in
order to accommodate the needs of refugees in Lebanon. It must also eliminate
any doubts that donors have with regards to the agencys credibility. Funding
can provide temporary relief for Palestinians in Lebanon. Yet, the just, legal
and durable solution for Palestinian refugees remains the implementation by
Israel of their right of return, as enshrined in Resolution 194.
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ANNEX
MAP OF PALESTINIAN REFUGEES IN LEBANON 1999
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Articles
169
The Jurisdictional Politics of Israel/Palestine:
The Case of Palestinian Workers in
Israeli Settlements
Dr. Toby Kelly*
Introduction
Whilst the Oslo Peace Process may have collapsed in the violence of the second
intifada, it has left behind important legacies in the ways in which the West
Bank and Gaza Strip are governed. Not least are the ways in which, in the
absence of clear territorial borders, the rights and responsibilities of Israelis
and Palestinians are distributed. It is this division that makes the difference
between access to the respective political, economic and military resources of
the Israeli state and the Palestinian National Authority (PNA). This short article
will examine one example of this division of rights and responsibilities, namely
the labour rights of Palestinian and Israeli workers in Israeli settlements. The
Oslo Accords have produced a situation whereby Israelis and Palestinians can
do the same work in the same place at the same time, but in practice receive
very different legal entitlements. This unequal distribution of rights is based
on the legal category of residence, which is not a neutral geographical
description, but an ethno-national distinction backed up by military force.
The article concludes by examining how in the context of the economic and
military legacies of the Oslo Peace Process, the law can be complicit in the
production of inequality.
Jurisdiction under the Oslo Accords
The Oslo Peace Process deliberately did not create any clear territorial
boundaries between the PNA and the Israeli state. Although the territorial
integrity of the West Bank and Gaza Strip was maintained, the territories
* Dr. Toby Kelly is the Paul Adams Research Fellow at the Centre for Socio-Legal Studies, Oxford
University.
170
were also left with an ambiguous political and legal status.
1
The PNA was given
some autonomy in the large Palestinian towns and most villages. However,
this autonomy was limited by the overall military control of the Israeli Defence
Force.
2
In the absence of clear territorial boundaries, forms of personal jurisdiction
were made the basis of the distinction between the Israeli state and the PNA.
Palestinian identity card holders would be the responsibility of the PNA.
3
Israeli
identity card holders would be the responsibility of the Israeli state. This applied
wherever Israeli identity card holders were in the West Bank.
4
Importantly, PNA laws, or their Jordanian and Egyptian predecessors, were
said to be territorially in force in the West Bank and Gaza Strip.
5
In the words
of the Israeli Attorney-General:
Israelis have a different law that applies to their legal person, this does not affect the
territorial jurisdiction, as Israel has never annexed the territory and Israel has never
applied law outside the official boundaries It should also be noted that the Israeli
legislator has made no extra-territorial determination of Israeli law.
6
Israeli law therefore followed Israeli identity card holders across the West Bank
and Gaza Strip in a form of personal jurisdiction that ignored the territory on
which they stood. Although PNA law was said to be territorially in force, it was
in effect vetoed every time it could be applied to an Israeli.
This divided personal and territorial jurisdiction creates a number of legal
problems when Israeli and Palestinian identity card holders interact in the
West Bank and Gaza Strip. The proximity of Israeli settlements to Palestinian
towns and villages, combined with the economic dependency of Palestinians
on the Israeli economy and the presence of the Israeli military across the
territories, means that there are thousands of such interactions on a daily
basis. One particularly interesting example of this is the case of Palestinian
labourers working in Israeli settlements. Before examining the legal issues
raised here, it is perhaps worth very briefly examining the historical and political
context of Israeli settlement in the West Bank and Gaza Strip.
Political context of the Israeli settlements in the West Bank
The Israeli settlements built in the West Bank and Gaza Strip after the 1967
occupation are perhaps the most controversial issue of the Israeli-Palestinian
conflict. For some Israelis, the settlements were motivated by perceived security
considerations, for others by a messianic return to the land, and for others
still by the availability of cheap housing (cf. Chazan, 2000). Whatever the
1 Declaration of Principles on Interim Self-Government Arrangements (DOP), Article IV.
2 DOP, Article VII and the Israeli-Palestinian Interim Agreement on the West Bank and Gaza
Strip (Interim Agreement), Annex I, Article VI.3.b.
3 Interim Agreement, Annex IV, Articles I.1 and III.1.
5 Before the creation of the PNA, laws that had the origins in the periods of Jordanian and
Egyptian rule were applied in the West Bank and Gaza Strip respectively.
6 Brief of the Attorney-General in the Matter of Subhi Hamed et al v. Municipality of Givaat Zeev,
Labour Court Appeal 30050/98.
Articles
171
motivations, the existence of the settlements has been condemned by
Palestinians and many others as illegal under international law (cf. PLO, no
date). Since the start of the second intifada in the autumn of 2000, the
settlements have seen frequently violent clashes and have become the site of
an increasingly heavy Israeli military build up. This part of the issue of Israeli
settlements is too well known to merit further discussion. However, there is
another part of the story of the settlements that is not so well known, namely
the Palestinian workers who work within them.
Many of the Israeli residents of the settlements either commute to work in
Jerusalem and Tel Aviv, or are ultra-Orthodox religious Jews and therefore
spend most of their time in religious study. There is therefore a shortage of
labour. both to build the settlements and to provide their basic services. Foreign
workers from the Far East and Eastern Europe have increasingly undertaken
many of the low-paid jobs in the Israeli economy. However, fearing that they
could be the victims of violence, they are often reluctant to work in the Israeli
settlements. The result is that many Palestinians, who often live in the
neighbouring Palestinian villages, have filled these menial jobs. Furthermore,
Palestinians have the attraction that they can be paid less than Israeli citizens,
as they are not due the same legal protection (cf. Mundlak, 2000).
For Palestinians, work in the settlements offers several advantages. The wages
are often two to three times higher than can be earned in the underdeveloped
Palestinian economy. Furthermore, work in the settlements does not officially
require the permits that are needed to work in Israel. Although some
settlements have demanded permits, this is a voluntary measure and can usually
be circumscribed. The result is that as recently as 1999, it was estimated that
as many as 30,000 Palestinians worked on a daily basis in Israeli settlements,
representing almost 5 per cent of the Palestinian labour force.
7
This is not to say that Palestinians working in Israeli settlements are not
controversial. If some of the settlements were built in order to establish Jewish
sovereignty, their dependency on cheap Palestinian labour potentially
undermines this claim. Furthermore, settlers and the Israeli military often
link the presence of Palestinians to security threats. They claim that
Palestinians working inside the settlements often pass on information to
militants to enable them to carry out attacks.
8
As a result, the Israeli military
and settler organisations have intermittently banned Palestinians from working
in the settlements. However, the need for cheap labour has usually undermined
these restrictions.
For many Palestinians, the presence of fellow nationals in the settlements
raises the prospect of Palestinians undermining their own claims to political
sovereignty. There has been a long-standing campaign to boycott goods
produced in the settlements, which are ironically often produced by Palestinian
labour. There have also been intermittent campaigns, especially in the Gaza
Strip, to prevent work in the settlements. However, these campaigns have largely
been unsuccessful due to the absence of opportunities for Palestinians to work
elsewhere.
7 Palestinian Central Bureau of Statistics, 2000.
8 cf. Haaretz, 4 October 2001.
The Jurisdictional Politics of Israel/Palestine
172
Jurisdiction of Israeli and PNA law in the settlements
The presence of so many Palestinians working for Israeli employers in Israeli
settlements inevitably raises the issue of under which law they should be
employed. Is it Israeli law by virtue of the Israeli employer, or PNA law by
virtue of the Palestinian employee? Alternatively, is the place of work the crucial
issue? The answer to these questions cannot be found by looking at whether
Israeli or PNA law applies to the employer, employee or the place of work.
The debate is taking place one step further back. You cannot look to either
PNA or Israeli law, because the very applicability of either law is under debate.
In practice, Palestinians have usually been employed under PNA law, whilst
Israelis undertaking the same work have been employed according to Israeli
law. This makes a substantial difference, as Israeli law is, in general, considerably
more generous to the employee than PNA law. A new PNA Labour Law went
into force in early 2002, but its provisions were still generally more restrictive
for the employee than those found in Israeli law.
9
Israeli law has a minimum
wage, whereas none exists in PNA law.
10
Israeli law is also more generous in
terms of severance pay and insurance.
11
In practice, therefore, tens of
thousands of Palestinians have been working in Israeli settlements, undertaking
the same work, in the same place, at the same time as Israeli citizens, but
being employed under considerably worse legal conditions.
How was this situation produced? In part the explanation can be found in
the underdeveloped nature of the Palestinian economy and the resulting
weak bargaining position of Palestinian labourers in comparison to Israeli
citizens. Often, no labour law at all is applied to Palestinian workers in the
settlements, and Palestinian workers did not challenge the situation because
they fear losing their jobs. However, the legal system is also complicit in this
situation.
For much of the 1990s, the issue of whether Israeli or PNA law should be
applied was never tested in the courts. It is worth pointing out here that all
cases concerning work in the settlements had to be directed to Israeli courts,
as it was in practical terms very difficult for an Israeli to appear before a PNA
court.
12
Through the 1990s, in nearly all the cases directed towards the Israeli
courts, a compromise was reached before a ruling could be made and a
precedent set. There were several reasons why this was the case. First, Israeli
Labour Courts encourage compromises in all cases. Secondly, it was often
difficult for Palestinians to obtain permits to enter Israel and attend Israeli
Labour Courts. Thirdly, the often vulnerable economic positions of Palestinian
workers encouraged out-of-court settlements, which were both quicker and
cheaper. Fourthly, the political sensitivity of the issue often made an out-of-
9 PNA Labour and Labourers Law 4-2001.
10 Israeli Minimum Wage Law 5747-1987. Israeli Military Orders actually require a minimum
wage and insurance in the West Bank but this is largely unenforced (Israeli Military Orders
663, 622).
11 Compare Israeli Severance Pay Law 5723-1963 Article I.2.a with PNA Labour and Labourers
Law 4-2001, Article 47 and compare Israeli National Insurance Law 5728 1968 Chapter 3 with
PNA Labour and Labourers Law 4-2001, Articles 118-130.
Articles
173
court settlement preferable for both sides. Lawyers representing Palestinian
workers were often Palestinian citizens of Israel or left-wing Israelis who took
the cases out of a sense of political solidarity. These lawyers would often be
reluctant to push for a ruling over whether Israeli or PNA workers should
apply, in case it set a precedent with far-reaching political implications. If the
court ruled that Israeli law was applicable to Palestinians working in the
settlements, many lawyers felt that this would imply the annexation of the
West Bank and Gaza Strip to Israel. By striking a compromise outside the
court, workers could get a deal that was better than PNA law, but that did not
set a potentially politically contentious precedent.
It was not just lawyers who were concerned with this issue. The PNA and
many Palestinian human rights organisations argued that PNA law should be
applied to the Palestinian workers in the settlements. LAW, a leading Palestinian
human rights organisation, has written that under no circumstances should
Israeli law be applied in Israeli settlements and to do so would be a
contravention of international law (LAW 2000: 14, 19). This argument also
implies that PNA law should also cover Israeli identity card holders. However,
given the protection that Israeli identity card holders in the West Bank and
Gaza Strip enjoy from the Israeli military, there is no way in which this claim
could be enforced. The alternative argument, that Israeli law should cover all
people in the West Bank and Gaza Strip, is not made for fear that this would
imply the extension of Israeli sovereignty.
Ironically, Israeli settlers agree with certain aspects of this reading of the
situation. They argue that PNA law should apply to Palestinians working in
the settlements. However, they insist that Israeli law should still cover Israeli
citizens. This position appears to contradict the claim of Israeli territorial
sovereignty in the West Bank and Gaza Strip often made by settler organisations.
However, it can perhaps be understood in the context of the symbolic
importance of excluding the Palestinian other from the Israeli state and the
cheaper Palestinian labour that the application of PNA law produces.
Whatever the motivations of both the Israelis and Palestinians involved,
through their narrowly legal arguments they both ended up arguing for a
situation that in practice meant that Palestinians were denied the rights of
their Israeli co-workers.
The example of Givaat Zeev
In 1996, a group of Palestinian workers approached an Israeli NGO in order
to file a suit demanding their equal treatment with Israeli colleagues. The
Palestinians worked for the municipality of Givaat Zeev, a medium-sized Israeli
settlement to the north west of Jerusalem. The Israeli NGO, Kav La Oved,
specialised in dealing with cases involving Palestinians and foreign workers in
the Israeli economy. Although the NGO was criticised by some Palestinian
groups for undermining Palestinian sovereignty in the West Bank, they
instructed a lawyer to take the case to court and demand the equal treatment
of Palestinian workers through the application of Israeli law.
13
13 Subhi Hamed et al v. Municipality of Givaat Zeev, Israeli Labour Court Appeal 30050/98.
174
The lawyer acting on behalf of the NGO argued that the application of
Israeli law was not an extension of Israeli sovereignty to the West Bank. He
argued that as the municipality of Givaat Zeev was a member of the Israeli
Union of Local Authorities, that the workers had a connection with the Israeli
state and therefore should be covered by the Israeli Labour Law. The lawyer
used the analogy of consular work, whereby consular officials may work outside
the state but are still covered by the labour laws of their home country. However,
the municipality refused to apply Israeli law to its Palestinian workers and
argued that as they were not Israeli citizens, they were covered by PNA law.
14
After several delays, the Israeli District Labour Court in Jerusalem finally
ruled in December 1997 that, on the basis of non-discrimination, the workers
should be covered by Israeli law and compensated retroactively. The
municipality appealed immediately. At this point the Israeli Attorney-General
intervened.
The intervention of the Israeli Attorney-General
The intervention of the Israeli Attorney-General is worth looking at in detail.
15
In his submission to the court, the Attorney-General argued that Palestinian
workers in West Bank settlements should be covered by what he called
Jordanian law, meaning the Jordanian Labour Law which at that time was
being applied by the PNA. Furthermore, he argued that to employ Palestinian
workers according to one set of conditions and Israeli citizens under another
set of conditions did not amount to discrimination. He wrote that:
A crucial aspect in examining discrimination is the question of equality. Is this a
contract that discriminates amongst equals or is there a difference between an Israeli
worker and Palestinian employed in West Bank? Is there a permitted distinction
between the two workers?
He continued, arguing that the Israeli citizens in question were residents of
Israel and:
It seems to us that the distinction is permissible between a resident and someone
who is not a resident. This is relevant and is not unacceptable because it cannot be
said to be a discrimination between equals because only unfairness amongst
equals for discriminatory purposes should be viewed as unlawful.
According to the Attorney-General, it is allowable for a state to distinguish
between residents and non-residents in the allocation of rights and
responsibilities. The situation at Givaat Zeev was not a case of discrimination
because it did not concern two equivalent categories. The Israeli citizen was
an Israeli resident, whilst the Palestinians were not.
It is worth remembering that the Attorney-General had himself pointed
out that the settlement of Givaat Zeev was not within the internationally
14 This case was covered by the Jordanian Labour Law of 21-1960 (Amended by Labour
Amendment Law 2-1965).
15 Brief of the Attorney-General in the Matter of Subhi Hamed et al v. Municipality of Givaat Zeev
Labour Court Appeal 30050/98.
Articles
175
recognised borders of Israel. How then could the Attorney-General argue
that Israeli citizens who worked in Givaat Zeev were Israeli residents whilst
not recognising the West Bank as annexed Israeli territory?
Under Israeli law, the definition of an Israeli resident does not refer to
geographical location. Through an Emergency Regulation, Israeli residents
are defined as including Israeli citizens, and those eligible for citizenship under
the Law of Return, who live in the West Bank or Gaza Strip, despite living
beyond the internationally recognised borders of the Israeli state.
16
As the
Law of Return in effect means that anyone defined as Jewish by the state of
Israel is eligible for Israeli citizenship, this produces an ethnic, not
geographical, basis for the distinction between an Israeli and a West Bank
resident.
It may well be true, as the Attorney-General argued, that it is common for
states to distinguish between residents and non-residents. However, the
Israeli Attorney-General argument treated residence as a category of natural
difference that occurred before the law. In doing so, his argument ignored
the ways in which residence was itself a political artefact and not a neutral
category. The Israeli identity card holders in question lived beyond the
internationally recognised borders of Israel, were protected by the Israeli
military and only defined as residents due to an ethno-national categorisation.
Through reference to a series of legal texts, and thereby acting as if he lived
in a legally enclosed world, the Israeli Attorney-General ignored the ways in
which the laws to which he referred were based on ethno-national distinctions
and were made possible by the military occupation of the West Bank. The
distinction between those who were due the protection of Israeli or PNA law
was not based on universal and neutral legal principles, but ethno-national
categories backed up by military force.
The Court rules
In June 2003 the Israeli National Labour Court finally ruled that the Jordanian
Labour Law should cover Palestinian workers in the settlement.
17
However,
the judge also ruled that Israeli law could be applied if discriminatory effect
could be shown in not applying Israeli law. This would apply on a case-by-case
basis. The case was therefore sent back to the District Labour Court to decide
on the issue. In the meantime Kav La Oved applied for a writ from the Israeli
High Court to overrule the Labour Courts decision.
18
As of writing in October
2003, the case was still pending. Whatever the decision, it is unlikely that the
ethno-national basis of the distinction between residents and non-residents
in the allocation of legal rights will be challenged.
16 Israeli Emergency Regulations (Judea and Samaria, Gaza Region, Sinai and Southern Sinai)
Criminal Jurisdiction and Legal Assistance (Amendment and Extension of Validity) Law 7744-
1984, No. 18 4.6b(a).
17 Subhi Hamed et al v. Municipality of Givaat Zeev, Israeli Labour Court Appeal 30050/98.
18 Subhi Hamed et al v. Municipality of Givaat Zeev, Israeli High Court of Justice 6961210/03.
176
Some concluding remarks
The Oslo Peace Process has left a legacy whereby Israeli and PNA legal actors
are complicit in the production of economic and political inequality between
Israelis and Palestinians. Through their arguments, the Israeli and the
Palestinian legal community both produce a situation whereby Israeli citizens
receive the protection of Israeli law, whereas Palestinians receive the restricted
protection of PNA law, despite doing the same work, in the same place at the
same time. Although both sets of legal actors were implicit in this situation, it
is of course important not to forget the vastly different institutional power of
the Israeli and PNA legal systems. It was, after all, the Israeli Labour Courts
that had sole jurisdiction over this issue. According to the Israeli Attorney-
General the distinction between Israelis and Palestinians was made on the
basis of the category of residence. However, residence is not a neutral
geographical description, but is based on ethno-national principles and is
backed up by military force. Whilst this short article has focused on labour
law, similar arguments could be made in reference to criminal, property,
administrative and commercial law.
19
However, the aim of this article is not simply to condemn either of these
positions or to point out their own internal contradictions, although that may
be possible. Instead, it is to indicate the problems of treating issues of
substantive justice as enclosed legal affairs, to be dealt with through the referral
to international and municipal law. If this is done, there is a danger of ignoring
the political and economic conditions upon which laws are made, and the
ends to which they can be put. Both sets of arguments took place against a
background of legal arrangements that were created by a military occupation
and were organised on ethno-national principles. In this context, narrow legal
arguments ended up reproducing a situation of economic and political
inequality. This is not to argue that legal strategies should not be central to
any future Israeli-Palestinian Peace Process. However, it is to suggest that the
legacies of the Oslo Accords are perhaps not the best foundations upon which
any just and lasting peace can be built. It is also to suggest than any future
legal arrangements must be built on the basis of political and economic
equality, or else they risk reproducing that very inequality.
Bibliography
Chazan, N. (2000). Towards a Settlement without Settlements, Palestine-Israel Journal
of Politics, Economics and Culture 7(3-4), pp. 46-51.
LAW (2000). The Case of Settlement Workers. Ramallah: Palestinian Society for the
Protection of Human Rights and the Environment.
Mundlak, G. (2000). Power-Breaking or Power-Entrenching Law? The Regulation of
Palestinian Workers in Israel, Comparative Labor Law and Policy Journal 20(4), pp.
569-620.
Palestinian Central Bureau of Statistics (2000). Labour Force Survey, April-June 2000.
Ramallah: PCBS.
19 For example, the Israeli Military Declaration which closes the area between the new security
wall and the Green Line makes a similar distinction between Israeli residents and non-
residents. The area is closed to non-residents who do not have a permit, but remains open
to Israeli residents (Israeli Military Order 378).
Articles
177
PLO (No Date). Settlements, Permanent Status Issues. Ramallah Negotiations Affairs
Department. On File with the Author.
Agreements
Declaration of Principles on Interim Self-Government Arrangements, 13 September
1993.
The Israeli-Palestinian Interim Agreement on the West Bank and Gaza Strip, Annex I,
Protocol Concerning Redeployment and Security Arrangements, 28 September1995.
The Israeli-Palestinian Interim Agreement on the West Bank and Gaza Strip, Annex IV,
Protocol Concerning Legal Affairs, 28 September 1995.
Cases
Subhi Hamed et al v. Municipality of Givaat Zeev, Israeli Labour Court Appeal 30050/98.
Subhi Hamed et al v. Municipality of Givaat Zeev, Israeli High Court of Justice 6961210/
03.
Statutes
Israeli Severance Pay Law 5723-1963.
Israeli Minimum Wage Law 5747-1987.
Israeli Military Order 378.
Israeli Emergency Regulations (Judea and Samaria, Gaza Region, Sinai and Southern
Sinai) Criminal Jurisdiction and Legal Assistance (Amendment and Extension of
Validity) Law 7744-1984.
Jordanian Labour Law of 21-1960 (Amended by Labour Amendment Law 2-1965).
PNA Labour and Labourers Law 4-2001.
Part II
Country Surveys
180
181
Egypt
Kosheri, Rashed & Riad*
1 CONSTITUTIONAL CASES
1.1 Judgment dated 13 January 2002 in Case No. 155 of the 20th judicial
year: Mr. Mohamed Elshershaby v. the President of the Republic (in his
capacity) and others.
The plaintiff in this case brought a legal action before the North Cairo Court
of First Instance requesting the annulment of a partnership agreement,
amendment of the part that provides for resolution of partners disputes by
arbitration, and on an urgent basis dissolution of the company and payment
of damages by the defendants.
During the course of this case the plaintiff alleged that the first paragraph
of Article of Law No. 27 of 1994 concerning arbitration in civil and commercial
matters was unconstitutional because it obliges the court that is viewing a case
brought before it that is subject to arbitration - to dismiss the case if the
defendant raises these points before presenting any request or defence. In
the plaintiffs view, this paragraph was unconstitutional because it denied the
right to litigate from a certain category of citizens, and prevented them from
recourse to the natural judiciary which has the general jurisdiction to view
civil and commercial disputes, whilst it allows this right to the rest of the citizens,
which is contrary to the constitutional principle of equality before the law,
the sovereignty of the law, the right to litigation for all, and the right of every
citizen to refer to his natural judge.
Moreover, the plaintiff alleged that the above-mentioned paragraph was
contrary to the Judicial Authority Law No. 46 of 1972, which provides that the
Courts must have to jurisdiction to view the disputes and this right in his
view could not be restricted.
The Supreme Constitutional Court refuted those allegations, and declared
that arbitration constitutes viewing a certain dispute by an outsider arbitrator
* Legal Consultants and Attorneys at Law, Cairo, Egypt. The contributors to this years survey
are Dr. Tarek Riad and Dr. Hatem Gabr.
182
who is chosen by the parties in accordance to the conditions that are defined
by them, in order to decide on the dispute, by a decision which terminates it
after allowing the parties to represent their points of view within the frame of
the main guarantees of litigation.
Therefore, arbitration is a voluntary act based upon a special agreement,
which aims at choosing this way to decide upon disputes instead of through
the normal judiciary, and it results in barring the Courts from deciding upon
those disputes as an exception to their subjection to the jurisdiction of the
courts.
The Supreme Constitutional Court added that the equality provided in
Article 40 of the Constitution aims at non-discrimination between members
of one category whose legal situations are the same, and if the provision subject
of the case for unconstitutionality aims at giving precedence to the will of the
persons who wish to arbitrate and who of their own free will accept to
adopt this way to decide upon their dispute, then such provision is based
upon objective bases, and it does not contain any arbitrary discrimination
that is contrary to the principle of equality, or that prevents the citizens from
having recourse to the normal judiciary.
The Court then ruled that the first paragraph of Article 13 of the above-
mentioned Law No. 27 of 1994 concerning arbitration in civil and criminal
matters was not contrary to the Constitution, and the Court rejected the case.
1.2 Judgment dated 15 December 2002 in Case No. 55/60 of the 22nd
judicial year: Mrs. Affaf Abd Elhady v. the President of the Republic.
A dispute was brought before the Egyptian South Cairo Court of First Instance
relating to a lease agreement containing an arbitration clause.
The plaintiff in this case alleged inter alia that Article 22/1 of the Law of
Arbitration in civil and commercial matters promulgated by Law No. 27 of
1994, was unconstitutional in providing that:
. . . the arbitral panel is competent to rule on the objections related to its lack of
jurisdiction, including objections based on claiming the non-existence of an
arbitration agreement, its extinction, nullity of said agreement, or that it does not
cover the subject matter in dispute,
because it contravened the principle of equality of chances and equality before
the law, and constituted an aggression against the judiciary and its inviolability,
the right of litigation to all provided in the Constitution, and also contravened
the judicial authoritys law which provides that the Courts have the jurisdiction
to resolve disputes.
The Supreme Constitutional Court rejected those allegations, and declared
that the basis of arbitration was the parties wish finally to resolve a certain
dispute by an arbitrator chosen by them or by their designates in accordance
with the conditions drawn by them and after presentation of their defence
within the basic guarantees of litigation.
This means that the will of the parties is to resolve their dispute through
this road instead of through the normal judiciary, and therefore the legislator
within his discretionary authority to organise rights has prohibited the
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Courts from viewing the disputes that are decided upon by arbitration, as an
exception to the principle of decision of those subjects by the Courts.
The Court then stated that the Article subject of the case gives the arbitral
panel the right to rule on the objections relating to its lack of jurisdiction
including the objections based on claiming the non-existence of an
arbitration agreement, its extinction, nullity of said agreement, or that it does
not cover the subject matter in dispute and this is due to factors that are
consistent with judicial logic, which confirms that bringing a dispute before
an arbitral panel is a judicial way to solve the totality of the dispute subject of
the arbitrations, including its various defences and pleas, in order not split
the arbitration between the arbitral panel which views the substance of the
case and another authority which views its pleas and to enable the arbitral
panel to fulfil its task, which is to decide upon the totality of the dispute.
The Court added that this is merely an application of the principle agreed
upon by the jurisprudence and the doctrine that the judge of the legal
action is the judge of the pleas.
The Court then mentioned that the agreement to refer a dispute to
arbitration does not prevent the normal courts from supervising the decisions
of the arbitral panels, which terminate the disputes, because the legislator
gives the courts the jurisdiction to order the execution of the arbitral judgments
and the recourse against them. Moreover, the legislator has given the Courts
the right to view the actions for nullity of the judgments of the arbitrators, in
order to enable the parties and the others concerned to present their
challenges that lead to the annulment of those judgments and to ensure that
the challenged judgments do not contravene the right to litigation or constitute
an aggression against the independence or inviolability of the judiciary.
The Court also mentioned that equality before the law provided for in Article
40 of the Constitution means non-discrimination between members of a group
whose legal situations are the same, and that the allegation of contravention
of Article 22/1 of the above-mentioned law to the Constitution does not stand
in relation to this Article.
The Court finally pointed out in relation to the allegation that Article
22/1 contravenes the judicial Authoritys law that the judicial supervision
exercised by the Supreme Constitutional Court concerning the
constitutionality of laws and regulations only extends to the contravention
between a legal provision and the Constitution, and that the Court has no
jurisdiction to decide upon the alleged contravention between two legal
provisions, whether in one or more laws.
The Court decided that the Article the subject of the case did not contravene
the Constitution, and rejected the two cases.
1.3 Judgment dated 14 April 2002 in Case No. 6 of the 20th judicial year:
Mr. Ahmed Ahmed Youssef v. the Prime Minister and others.
Article 17 of Law No. 136 of 1981 establishing various rules relating to the
relationship between the landlord and the lessee, provides that the leases
of non-Egyptians are terminated de jure on termination of their legally
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determined residence in the country. Nevertheless, leases shall in all cases
last de jure in favour of the Egyptian wife and her children of the non-
Egyptian, who were staying in the premises, unless it is proven that they have
definitely left the country.
In the case under review, the Egyptian husband of a deceased foreign wife
who was the lessee of the premises brought a legal action in his and in his
minor daughters name against the landlord claiming the right to remain in
the premises in accordance to Article 17 of Law No. 136 of 1981.
The Court rejected the case, because this Article only gave the right to
remain on the premises to the Egyptian wife of the departing foreigner and
not to the Egyptian husband of a departing foreigner.
The Egyptian husband appealed against this judgment in his own name
and in his capacity as the guardian of his minor daughter, and claimed that
Article 17 of Law No. 136 of 1981 was unconstitutional, because it violated the
equality between the Egyptian husband and the Egyptian wife in relation to
the rights derived from the lease agreement, and also violated the true
character of the Egyptian family as prescribed in the Egyptian Constitution.
The Supreme Constitutional Court upheld the plaintiffs case, and stated
that the Egyptian Constitution provides in Articles 9, 10, 11 and 12 that the
family is the basis of the society, founded on religion, morality and patriotism,
that the true character of the Egyptian family and its values must be preserved,
and that the State must uphold and safeguard the equality between men and
women in the political, social, economic and cultural fields, as well as
coordinate between its duties in society and its obligations within the family,
without violation of the rules of the Islamic sharia. Moreover, Article 40 of the
Constitution prohibits the discrimination between man and women, whether
in the field of their rights or freedoms on the basis of race, all of which means
that those Articles are complementary and have specific aims, at the forefront
of which are the equality of the citizens before the law, in consideration that
the law is the basis of justice and the core of freedom and social peace.
The court added that Article 17 of Law No. 136 of 1987 protects the interests
of the Egyptian wife and her children in the way detailed in this Article;
nevertheless, the principle of equality necessitates that such protection should
be extended to the Egyptian husband and his children from the lessee foreign
wife, whose residence in the country is terminated in fact or de jure.
The Court stated that the Article subject of the case did not do so, but that
it discriminated between the Egyptian husband and the Egyptian wife, despite
the similarity of their legal situations: it allowed discrimination based upon
race, and also gave precedence to the rights of the foreign children of the
foreign departing lessee husband who have the right to remain on the
premises over the rights of the Egyptian children of the foreign departing
lessee wife, who do not enjoy this right in accordance to Article 17 of Law No.
136 of 1981, which contravenes Article 40 of the Constitution, and also
endangers the structure and the solidarity of the Egyptian family, which
contravenes Articles 9, 10, 11 and 12 of the Constitution.
And the Court declared that Article 17 of Law No. 136 of 1981 was
unconstitutional in providing for the restriction of continuation of the lease
agreement to the Egyptian wife and her children from that lessee foreign
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185
husband whose residence in Egypt is terminated in fact or de jure and not
to the Egyptian husband and his children from his lessee foreign wife whose
residence in Egypt is terminated in fact or de jure.
1.4 Judgment dated 15 December 2002 in Case No. 201 of the 23rd
Judicial Year: see Mr. Alaa Abou Elmaaty Abou Elfoutouh v. the Prime
Minister and others.
In the case under review, the husband in a (khul ) divorce case alleged that
Article 20 of Law No. 1 of the year 2000 concerning the organisation of
some rules and procedures relating to litigation in personal status matters
was unconstitutional, because it contravened the Islamic sharia which provides
for the necessity of the husbands approval of the (khul ) divorce, and because
this article provided that the (khul ) divorce judgment was not subject to any
sort of recourse, and therefore contravened the right of litigation provided
for all in the Constitution.
The Court that was reviewing this divorce case allowed the husband to bring
the legal action for unconstitutionality before the Supreme Constitutional
Court, and the Court decided upon this question which was subject to heated
debates in Egyptian society, because Article 20 of the above-mentioned law
allows the wife the right to final divorce on condition of relinquishing all
her pecuniary legal rights and paying back the dowry to the husband if she
deems that in her opinion, their marital relationship cannot continue, because
she hates to live with her husband and fears that she will transgress the rules
of God because of such hatred.
Moreover, this Article also provides that the (khul ) divorce judgment may
not be subject to any sort of recourse.
The Supreme Constitutional Court again drew attention in its judgment in
this Case that Article 2 of the Constitution after its amendment in1980
provides that: the principles of Islamic Sharia are the principle source of
legislation, and that this means that a legislative act may not be in contradiction
with the Islamic sharia principles that are definitive in certainty as to the source
from which they derive and as to their meaning, and that those principles
alone are not subject to discretionary interpretation, because they represent
the overall principles and the lasting bases of the Islamic sharia that may not
be interpreted or amended.
The Court added that this is not so in relation to other rules where there is
no such certainty and that where the area of discretionary interpretation is
wide in organising the community, whose interests change and vary with the
evolution of life and the changes in time and place.
This discretionary interpretation is particularly necessary in the case of the
ruler, who has to apply his judgment where no rules exist, in order to achieve
the practical, just solutions which are in accord with the Muslim sharia.
The Court also stressed that the Muslim sharia does not consider the
opinions of any one canonist as sacred, and it allows its review and amendment,
taking into consideration the true interests of the community which do not
contradict those of the sharia.
Therefore the ruler may, within those parameters, use his discretion without
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186
being obliged to abide by the opinion of others, and in case of choosing
between two alternatives, he has to adopt the easier one unless it constitutes
a sin.
The Court also referred to the fact that although the rule is that marriage
should last, nevertheless divorce is allowed when hatred replaces friendship
and compassion, and this divorce, which is allowed to the husband within the
limits designed by God, has been countered by the right of the wife to divorce
for various reasons as well as the right to ransom herself by returning her
dowry, which is called the (khul ), and in either case she has to refer to the
judiciary who divorces her for one of the reasons of divorce or to judge her
(khul ) from her husband, as is explicitly confirmed in verse 229 of the Cow
Surah of the Holy Quran which provides that:
A divorce is only permissible twice, after that she should be retained in honour, or
released in kindness. It is not lawful for you [men] to retake any of your gifts from
your wives, except when they fear that they would be unable to keep within the limits
ordained by God, and if you fear that they would be unable to keep the limits ordained
by God, then there is no blame if she ransoms herself.
These are the limits ordained by God, so do not transgress them. If any do transgress
the limits ordained by God, such persons are the wrong doers.
This means that the right of the wife to ransom herself by the (khul ), in
order to obtain a divorce, is mentioned in the text of the Holy Quran which
is definitive in its certainty. Moreover, the Prophets actions (Sunnah) have
confirmed the (khul ) in practice as detailed in the book Sahih Elbokhari.
Therefore, the principle relating to the (khul ) is confirmed by definitive
provisions in certainty, in both the Holy Quran and the Prophets actions
(Sunnah). Nevertheless, its detailed rules are not contained in them and the
opinions of the canonists differ as to the right of the wife to the (khul ) with
or without the acceptance of the husband.
In such a case the legislator has to interfere in order to decide upon which
opinion to adopt.
The Article subject of the case did so within reason and in agreement
with the aims of the Islamic sharia and its principles, because separating the
couple in this case is in the interests of both the husband and the wife: on the
one hand, it is not right to oblige the wife to live without her consent with
a husband whom she hates, contrary to the basis upon which the marital
relationship stands, and on the other hand the husband does not incur any
material charges resulting from the (khul ) divorce, whilst holding to a wife
who hates him, and contrary to the Islamic belief which is based upon noble
behaviour.
And the Court decided that, for those reasons, the Article subject of the
case did not contravene the Islamic sharia, and therefore that it did not
contravene Article 2 of the Constitution.
The Supreme Constitutional Court then went on to examine that part of
the case relating to the alleged contravention of the above-mentioned Article
of the right to litigate.
The Court stressed that the principle is that the legislator has a discretionary
right to organise the rights including the right of litigation provided in Article
68 of the Constitution unless restricted in the Constitution by specific norms
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187
which include the necessity of non-arbitrary discrimination between those
in equal legal situations.
The Court then stated that not all legislative discrimination is contrary to
equality, because one should always consider the legal provisions as the means
designated by the legislator to achieve the results which he aims at. In other
words, one should examine the principle of equality before the law provided
in Article 40 of the Constitution in the light of the legality of those aims and
of the logical link between those means and aims.
The Court added that the limitation of litigation to one step is part of the
discretionary authority of the legislator to organise the rights, therefore limiting
litigation to one step based upon objective reasons does not reduce the right
of litigation guaranteed by the Constitution to all.
In view of the Court, the legislative organisation of the (khul ) as detailed
in the Article the subject of the case, is a complete unitary system which aims
at upholding the interests of both the parties of the marital relationship, and
as a consequence it is logical for the legislator to decide that the judgment
relating to the (khul ) is not subject to any recourse, taking into consideration
that this judgment is based upon the psychological condition decided upon
by the wife alone, and this totally negates the reason for the two-step litigation
which aims at correcting a fault committed by the lower court.
In essence the legal action for the (khul ) divorce is different from any
other legal action, necessitating that the judgment pronounced in it terminates
the dispute in its entirety, in order to prevent unwarranted malicious
prolongation of the dispute.
The Court then decided that in view of the above the Article subject of
the case does not detract from the right to litigate or from the right of equality,
and the Supreme Constitutional Court rejected the Case.
2 THE LAW OF THE ECONOMIC ZONES OF SPECIAL
NATURE
The Law of the Economic Zones of Special Nature (the Economic Zones
Law) was promulgated by Law No. 83 of 2002.
The economic zones areas and the authorities that manage them are
established by a Presidential Decree. The aim of each Authority is to encourage
investments in the economic zone under its responsibility for the
establishment of cultivation, industrial and services projects that are able to
compete with comparable ones abroad.
Each economic zone has a special customs and taxes administration system
that is established by the board of directors of the economic zone with the
approval of the Minister of Finance.
The Economic Zones Law provides for the possibility of terminating the
employment contracts of the employees in the economic zones, according to
terms easier than those prevailing under the Egyptian Labour Law, as well as
for the possibility of the establishment of a special system for the social
insurance of those employees.
Income tax in the economic zones is 10 per cent of the net income except
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for the income derived from the salaries of those working in them, which is 5
per cent.
The profits derived from bonds and from loans to establishments in the
economic zones are exempt from taxes, and no sales taxes or duties or other
direct or indirect taxes may be imposed in them.
Machines, raw materials, spare parts, components etc that are necessary for
the authorised activities in the economic zones may be imported without
permits, and are exempt form the customs taxes, the sales taxes and from all
other taxes and duties. The products of those establishments may be exported
without permits, and are subject to the customs taxes, the sales taxes and
other taxes and duties only on the imported components of those parts when
they enter the local Egyptian market.
Furthermore, the establishments operating in economic zones may not be
subject to nationalisation, nor may they be subject to sequestration, the freezing
of assets or to confiscation except by a judicial judgment, and those
establishments are entitled to decide on the prices of their products and
services without governmental interference.
3 LABOUR LAW
A work permit is required for foreigners who intend to work in Egypt.
The new Egyptian labour law promulgated by Law No. 12 of 2003 (the
New Labour Law) provides that the employer is allowed to employ the
employees on probation for up to three months and the employment contract
may be either for a definite or an indefinite period of time.
The legal maximum working hours are 8 per day or 48 hours per week
excluding overtime and rest meal periods, and the employees must get a weekly
rest which must not be less than 24 hours.
Employees have the right to 21 days of annual paid vacation days after
working for one year, and 30 days after working for 10 consecutive years or
reaching the age of 50.
With regard to employee sick leave, the general rule is that the employee is
entitled to six months of sick leave per year with pay between 75 per cent and
85 per cent of the normal wage.
The minimum overtime premiums are 35 per cent of normal pay for
overtime work during daylight, 70 per cent for work at night, and 100 per
cent for work on rest days and holidays.
Dismissal of the employee is legal if he commits a serious offence as defined
by the New Labour Law as detailed hereinafter.
We would here add that the New Labour Law has introduced a number of
major modifications relating to employment relationships which can be
summarised as follows:
(1) The New Labour Law provides for an obligatory annual increase of a
minimum of 7 per cent in the employees basic salary.
(2) The concerned Minister may designate certain activities which may not
be exercised by foreigners in Egypt, as well as the maximum number of
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foreigners allowed to work in establishments in Egypt.
(3) The ranges of disciplinary sanctions that may be imposed on employees
have been increased in order to allow for certain latitude in this respect.
(4) The jurisdiction to review the legal actions relating to employment
relationships has been transferred from the regular judicial Courts to
judicial committees composed of two judges one of whom presides
over the committee, a civil servant, a member representing the relevant
Labour Union, and a member representing the relevant Employers
Syndicate, and the decisions of those judicial committees may be subject
to appeal and to recourse to the Court of Cassation in accordance with
the general rules of Egyptian Law.
(5) The previous Labour Law of 1981 provided that renewal or continuation
of a temporary employment contract is considered a renewal or a
continuation of this relationship for an indefinite period of time.
The New Labour Law takes a different approach in this respect, which
accepts the multiplicity of renewals of temporary employment contracts.
The importance of this innovation is obvious because it allows, for the
first time in decades, to employ the employees on a continuous
temporary basis, which minimises to a great extent the number of legal
actions brought against an employer for abusive dismissal of their
employees.
(6) The New Labour Law mentions for the first time the possibility of
dismissal of the employees for incompetence in accordance with the
approved work regulations.
(7) The New Labour Law provides that the unjustifiable dismissal of an
employee by an employer allows the employee to claim damages before
the judicial committees referred to above, and the damages accorded
by the judicial committee in those cases must not be less than a sum
equal to two months of the total wage for each year of service.
(8) The New Labour Law provides that the age of retirement must not be
less than 60 years, and that the employer may terminate the employment
contract when the employee reaches the age of 60, unless he was
employed for a definite period which ends after the employee reaches
this age.
(9) The New Labour Law has introduced detailed provisions concerning
vocational training, including the creation of a fund for financing this
training, which is partially funded by 1 per cent of the net profit of the
establishment subject of this Law which employs more than ten
employees.
(10) The New Labour Law allows the employees for the first time to strike
peacefully through their labour unions, in defence of their professional,
economic and social interests, and in accordance with this Law.
The New Labour Law also provides that the strike must be approved
by a two-thirds majority of the Board of Directors of the relevant labour
union organisation.
On the other hand, employees in strategic and vital establishments
designated by the Prime Minister are not allowed to strike.
(11) The New Labour Law allows the employer for economic reasons to close
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his establishment totally or partially or to reduce its size or activity, after
approval of a committee whose membership and authority is designated
by the Prime Minister, and employers must pay to employees whose
employment contracts are terminated for economic reasons a sum
equal to one month of the employees total salary for each of his first
five years of service and one and a half months for each year of service
over and above the first five years.
4 PATENTS, TRADEMARKS AND COPYRIGHT
A recent Law No. 82 of 2002 (the Intellectual Property Law) on the protection
of intellectual property rights was promulgated by the Egyptian Peoples
Assembly, and it provides for extensive protection of these rights, particularly
in the following fields:
4.1 Patents
The Intellectual Property Law allows inventors to obtain patent protection
for 20 years from the date of application in Egypt.
The patent protection for utility designs is for seven renewable years starting
from the date of application in Egypt, and the patent protection for schematic
designs of integrated circuits is ten years starting from the date of application
in Egypt or the date of first commercial exploitation thereof in Egypt or abroad,
whichever date is prior to the other.
It is the patent holders exclusive right fully to exploit the invention. It is
also his obligation fully to exploit it, otherwise the patent holder may be
subjected to compulsory licensing in favour of a third party for failure to do
so, as detailed in this Law.
Undisclosed secret data and information also enjoy protection in accordance
with this Law.
4.2 Trademarks
The Intellectual Property Law provides owners of trademarks with a protection
period of ten years subject to renewals for similar periods. The owner of the
trademark is the one who effects the registration and uses the trademark for
the five following years, unless it is established that a third party had priority
for using it, and the person who had preceded the one in whose name the
trademark is registered has the right to challenge and declare null and void
the registration during those five years.
However, the trademark may be challenged and declared null and void
without a restriction period if it is coupled with ill will.
This Law provides that the owner of a famous trademark in Egypt and
worldwide has the right to enjoy the protection prescribed in the Law even if
the trademark is not registered in Egypt.
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4.3 Industrial designs and drawings
Industrial designs and drawings enjoy protection for ten years starting from
the date of application for registration in Egypt, and the protection is renewable
for five years.
4.4 Copyright
Copyright protection includes literary, technical and scientific works such as
architectural designs, speeches, musical works, theatrical pieces, maps,
photographic and cinematographic works, works for broadcast on television
or radio, videotapes, and computer software.
The protection extends to 50 years after the death of the author. If the
author is a legal entity then the protection begins on the date of first
publication.
The protection for applied arts works is for 25 years starting from the date
of their publication or the date they are made available to the public for the
first time whichever is the latter and broadcasting authorities enjoy the
exploitation protection for 20 years starting from the date of first transmission
of the programmes.
4.5 Botanical products
Botanical biological and non-biological products derived in Egypt and abroad
which are new, distinctive, homogeneous, durable and that have a distinctive
appellation enjoy the protection of the Intellectual Property Law once they
are recorded in the special register for botanical products the subject of
protection.
The duration of the protection is 25 years for trees and grapevines and 20
years for other agricultural products, and the general rule is that the protection
runs from the date it is granted.
4.6 International Conventions
Egypt is inter alia a signatory to the Paris Convention for the Protection of
Industrial Property, the Hague Agreement on Industrial Designs, the Madrid
Agreement on the International Registration of Trademarks, and the
International Patent Classification Agreement.
4.7 Egypt and the World Trade Organization
Egypt is a signatory of the final acts embodying the results of the Uruguay
round of multilateral trade negotiations at Marrakesh on 15 April 1994, i.e:
the World Trade Organization Agreements (WTO Agreement). The
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Egyptian Peoples Assembly ratified those Agreements on 16 April 1995. The
Egyptian Government has formed several committees to study the amendment
of Egyptian Laws and Regulations in order to conform with WTO Agreements
and several Laws and Regulations have already been promulgated in that
regard; for example the recent Law No. 82 of 2002 on the protection of
intellectual property rights.
5 BANKS AND FOREIGN EXCHANGE LAW
The new Central Bank, Banking System and Foreign Exchange Law No. 88 of
2003 (the Banking Law) introduced many new Concepts that are worth
noting and which affect investors in those fields.
(1) The first chapter of this law contains the provisions relating to the
Egyptian Central Bank, a public juristic entity that is dependent on the
President of the Republic, and which has wide-ranging rights in relation
to the control of various banks operating in Egypt as detailed herein
below.
(2) The second chapter deals with the organisation of the banking system
operations in Egypt.
Banks operating in Egypt and their branches abroad have to be
inscribed in special register held in the Central Bank.
The issued fully paid up capital of the bank must not be less than
L.E. 500 million and the capital earmarked for the operations of
branches of foreign banks operating in Egypt must not be less than
US$50 million or their equivalent in free foreign exchange.
Those banks are free to decide upon the prices and interests relating
to their banking operations.
On the other hand, banks may only terminate their activities after
obtaining the approval of the Central Bank, and the Central Bank has
the right to reject the appointment of the members of the board of
directors of banks, and of their top managers. Furthermore, the Central
Bank has the right to request the dismissal of any board member of any
bank and/or any of its top managers, if an investigation by the Central
Bank reveals that the concerned person did not abide by the safety
rules relating to the banks deposits and assets.
Egyptians and foreigners are allowed to own any percentage of the
capital of banks, nevertheless ownership of more than 10 per cent of
the issued capital of a bank or any percentage of its capital resulting in
control of a bank must be authorised by the Central Bank.
The Egyptian Central Bank is also empowered to lay down the rules
that ensure its control and supervision of bank operations in Egypt and
the norms under which they operate, as detailed in the Banking Law.
Finally, the Central Bank has the right to cancel the registration of
banks and branches of foreign banks operating in Egypt if they
contravene the banking law, or if they adopt policies that harm the
general economic interest or the interests of their depositors or their
shareholders.
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(3) The third chapter of the Banking Law deals with the management of
the public sector banks.
(4) The fourth chapter concerns the secrecy of banks accounts, which is
guaranteed with some exceptions, including the banks obligation to
disclosure if it is so decided by a judicial or arbitral judgment, or if so
provided in the Anti Money Laundering Law.
(5) The fifth chapter provides for the rules relating to the issue of Egyptian
currency and foreign exchange transactions.
In this respect it should be noted that every natural or juristic person has the
right to keep all the foreign exchange that he owns or possess and that he
may freely conclude local and foreign transactions through the banks and the
other authorised establishments that are accredited to deal in foreign
exchange. Nevertheless, it has to be noted there are certain restrictions with
regard to Egyptian exporters keeping the totality of the proceeds of their
export in foreign currency.
Sale and purchase transactions inside Egypt whether for goods or services
has to be effected in Egyptian pounds, and the rate of exchange of the
Egyptian pound vis--vis foreign currencies is determined by the market values
in the light of the rules relating to the organisation of the foreign exchange
market as decided by the Prime Minister on the recommendation of the
Central Bank.
In addition the Law ensures the right of travellers to bring in and to take
out foreign currencies on condition they disclose amounts over US$10,000 or
their equivalent, on entering or leaving the country.
6 THE COMMUNICATIONS LAW
A new Law was promulgated under No. 10 for the year 2003 relating to the
organisation of Communications in Egypt (the Communications Law).
According to the Communications Law, the National Authority for
Organisation of Communications (TRA) is the governmental Authority that
is responsible for applying this Law.
Article 21 of the Communications Law provides that no communications
network may be established or operated, or communications services to third
parties be offered, or international telephone calls be passed without a permit
issued by the TRA.
Requests to obtain permits are presented on forms prepared by the TRA
together with the data and documents that it designates and the request must
in particular contain the suggested basis for the pricing of the services and
the method of evaluation.
Furthermore, the TRA decides upon the fees for the permits and the rules
and procedures relating to its payment.
The Communications Law also provides that the already existing
Government owned Egyptian Company for Communications (Egypt
Telecom) is exclusively entitled until 31 December 2005 to establish, operate
and exploit the international correspondence networks between Egypt and
any other state through the international crossing points by maritime, land,
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microwave links, industrial telestars for fixed services, and also to pass
international calls and to offer telephone, fax telex and telegraph services
through those networks.
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Syria
Jacques el-Hakim*
1 TAXATION
1.1 Income tax law
A new law (No. 24 of 13 November 2003) on income tax has been promulgated
and was enforced as from the beginning of 2004. Up to now, the tax on global
income (promulgated, during the Union with Egypt, by Law No. 130 of
25 July 1961) has not been enforced in Syria. There are therefore separate
taxes on various sources of income which were governed by legislative degree
(leg. d.) No. 85 of 21 May 21 1949 as amended.
Those various sources of income are mainly: industrial; commercial and
non-commercial professions; real estate; inheritance and donations; salaries;
and negotiable capital (companies shares and bonds, negotiable instruments,
bank loans and deposits, securities etc). Income tax on professions covers
real income, appraised lump sum income and non residents. The tax was
progressive so that its rate was pro-rata of the range of income regarding each
category.
In addition, two increments have been added to the tax: one called war
effort varying between 10 and 30 per cent of the tax depending on its category,
and the other one called local administration varying between 2 and 10 per
cent of the tax, depending on the region (mouhafazat) where it is levied.
All this made the tax calculation quite difficult and in some cases made its
global amount exceed 100 per cent. The tax assessment was not, as before,
subject to the control of judicial courts as a last resort, but under the control
of appeal commissions where the Tax Department officers were
predominant. Only a few grounds of appeal (time limitation or levy of an
undue tax) were subject to the jurisdiction of the Administrative Courts
usually more complacent to the State than the ordinary courts.
On the other hand, the Syrian Authorities amended the previous law
providing for a four-year time limitation from the maturity date for all amounts
* Professor of Law, Damascus University, Attorney of Law.
196
due either by the State or the taxpayer to the other, as per the French legislation
in that respect. But on 19 July 1967, the equality was broken between the two
parties by leg. d. No. 92 (Article 28) and whilst the taxpayers dues were still
time-barred after four years, as before, the States dues became time-barred
after 15 years, which practically resulted in the absence of time limitation since
that limitation could be easily interrupted or suspended in the States favour.
The procedures followed by the Tax Authorities in assessing the income tax
were unfortunately far from fair. They did not allow taxpayers to deduct most
of their costs from their global returns to calculate their net income or to
adapt the purchase price of their assets when re-sold to the inflation rate in
order to calculate the real profits. This is why many taxpayers used to declare
only part of their real profits by holding double accounts. That behaviour has
now been punished by criminal penalties as per Law No. 25 of 18 November
2003 on tax evasion which is commented on below, and stripped taxpayers
from most of the advantages provided by Law No. 24.
Title I: Professional income
Despite its title, this category is not restricted to stable professions but also
covers all sources of income, even those derived from an occasional activity as
well as from the public sector, organisations or companies. It also covers
enterprises operating in Syria but linked with foreign enterprises. It is up to
the Finance Ministry (the Ministry) to assess the tax on the actual real profits
or on the lump sum appraised profit (this, in particular, applies to industrial
enterprises with real estate or equipment valued by the Ministry at 2 million
Syrian Pounds (SP) (approx US$40,000) or more.
The tax is imposed on profits realised in Syria if, at the beginning of the
calendar year, the taxpayer was performing his activity there. In case of several
enterprises, the tax is assessed on the head or main office located in Syria or
in the capital, Damascus (Article 3). Agricultural enterprises and cooperatives,
writers, composers, artists and nurseries are exempted from the tax, as well as
75 per cent of the net income of air and sea transport enterprises (Article 4).
Capital expenditure and the personal management salary paid to the owner
of the enterprise or the director of the partnership are not deductible from
the gross income to calculate the net assessable income (Article 9). Losses
can be deducted from the profits of the five following years (Article 12).
The tax rate is progressive and amounts to 35 per cent above 3 millions SP
about US$60,000. That rate includes war effort but not local administration.
Joint stock companies (Socit anonyme in French) with a head office in Syria
are subject to a fixed 20 per cent provided it has offered half of its shares to
public subscription when incorporated. Industrial joint-stock and limited
companies are subject to a fixed 25 per cent rate provided the value of their
industrial equipment exceeds 5 million SP about US$100,000.
The tax assessment made by the controller must be approved or amended
by a Finance Administration Committee and can be appealed from
subsequently before a first degree and appeal commission. All members of
those commissions are appointed by the Minister and the controller plays a
major part in the activity of the first degree commission as a rapporteur,
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although he cannot vote (Article 29, para. c/4).
Only one member of the Appeal Commission is a judge appointed by the
Ministry of Justice (Article 33/a) but he usually ignores the principles of
taxation and does not play any effective role as shown by the practice of the
last decades. The Administrative Court can only examine appeals against
second degree decisions in two cases:
(1) If the taxpayer is not subject to assessment at all.
(2) If the second degree commission amended the assessment of the
first degree commission by a 25 per cent increase or reduction (Article
40/b).
Title 2: Lump sum assessment
This assessment applies to taxpayers indicated by the assessment commissions
on the basis of the criteria indicated by the Ministry (Article 41) for five years
to come. This classification can be reviewed in case of a 25 per cent change in
the income of the taxpayer occurring after the first two years (Article 43).
This tax applies particularly to:
(1) Taxis (Article 44);
(2) The liberal professions: medical doctors, lawyers and engineers whose
part-time agreements with Public Sector entities are mandatorily subject
to that tax (Article 4) when full-time agreements with them is subject to
the tax on salaries (Article 45/a);
(3) Tax on the transfer of real estate lease agreements used for the
performance of the a/m professions (Article 45/d).
That tax is subject to a maximum tax rate of 23 per cent.
Taxpayers subject to that tax are classified and their income appraised by a
first degree commission of which all members are appointed by the Tax
Authorities except that the member representing the profession concerned
must be chosen among three delegates (experts) proposed by the respective
syndicate or Chamber of Commerce if existing (Article 48/c). The decision
of that commission can be appealed before a commission of which all members
are appointed by the Finance Ministry with the same reservation as above
regarding the representative of the particular profession (Article 50).
Title 3: Tax on non-residents
The following provisions govern the tax on real professional income and
salaries regarding an activity performed in Syria when the taxpayer (whether
a physical or a legal person) or its sub-contractors are foreigners. If that member
fails to attend the meetings of the Commission, he can be replaced by any
taxpayer or Public Sector employee appointed by the Ministry (Article 123).
A company is regarded as foreign when it is registered and has its head office
abroad. The tax rate then amounts to the following rates:
(1) For income tax:
(a) 5 per cent of the gross returns derived from the supplies and services
provided in Syria, when their agreement does not show a separate
appraisal for the supplies and for the services.
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(b) 10 per cent of the gross returns derived from services rendered in
Syria and from the lease of films or equipment or royalties received
there.
(2) For the tax on salaries:
(a) 1 per cent of the gross returns derived from supplies and services
provided in Syria when the agreement does not show separately the
returns derived from the services.
(b) 2 per cent of the gross returns derived from services and from the
lease of films or equipment or royalties in Syria.
Those rates are not subject to local administration or other increments.
These provisions do not apply to the registered branches in Syria of foreign
enterprises which import goods to sell in Syria for their own account, their
return therefrom being subject to the taxes enforced on residents (Article 61).
The non-resident tax must be withheld by the local enterprises paying for
the aforementioned supplies or services and paid to the Tax Authorities within
15 days from that payment (Article 62). The same rule applies to the payments
effected by non-residents to non-resident sub-contractors as a remuneration
for their services and they are both responsible therefore jointly and severally
(Article 63). That obligation is subject to a 10 per cent penalty if the tax is not
paid on time plus 10 per cent per subsequent year of late payment up to a
maximum of 30 (Articles 64 and 107).
Non-resident reinsurance companies are subject to a 10 per cent tax on the
premiums received from Syrian insurance companies (Article 65). Only one
State-owned, nationalised-company is now operating in Syria.
Title 4: Tax on salaries
That tax is due:
(1) On salaries received by residents or even by non-residents for services
performed in Syria.
(2) By residents or non-residents on salaries received from a public entity
(Article 66). Diplomats, the military, retired employees, house servants
and a few other categories are exempted from that tax (Article 67).
The tax rate is progressive and amounts to 20 per cent on the monthly net
range of salary above 30,000 SP about US$600 (Article 68). Also subject to
that tax are members of the liberal professions receiving a permanent salary
for their services (Article 70). The tax must be withheld when the salary is
paid (Article 72).
The assessment is subject to appeal before the commissions competent for
the professional tax on real income (Article 81).
Title 5:Tax on negotiable capital
The tax is imposed on income derived from:
(a) Bonds and loans certificates issued by companies and financial entities
with a head office or main office or assets located in Syria.
(b) Non-resident companies shares and bonds or State bonds (whether
Syrian or foreign) held by residents.
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(c) Interest paid on debts secured by mortgage, loans received on bank
deposits or current accounts, financial guarantees issued by a corporate
body except if covered by the income tax on banking activities (Article
83).
The tax rate amounts to 7.5 per cent plus local administration (Article 84).
Returns of foreign securities must be withheld by the local banks serving
the respective dividends or interests (Article 91).
The debtor and the creditor are jointly and severally responsible for the
payment of the tax, even it falls mandatorily on the creditor (Article 99).
Here again, the appeal of the assessment decisions is submitted to the
competent commissions (Article 103). Deposits in bank savings accounts are
exempted from that tax.
Title 6: Penalties and miscellaneous
Taxes which are not paid on time are subject to a 10 per cent penalty per year
of delay up to a maximum of 30 per cent three years (Article 107), in addition
to other penalties provided for in a specific provision. Material errors or
omissions can be objected to before the competent commissions (Article 111).
It is up to the Tax Authorities to compensate any amount due to the taxpayer
by a public entity (Article 119). Those entities cannot release the guarantees,
securities or bonds provided by Syrian individuals or entities without a clearance
certificate delivered by the Tax Authorities (Article 120). Any State employee
or third party who discovers or reports any income concealed from the Tax
Authorities is entitled to a bonus determined by the Finance Minister up to a
maximum of 25 per cent of the penalties due by the taxpayer (Article 121).
The State employee who discovers the false statements or documents submitted
by the taxpayer is entitled to a share not exceeding 10 per cent of the penalty
recovered by the latter (Article 122). The books of accounts and supporting
documents must be kept for ten years, otherwise they would be regarded as
concealed from the Tax Authorities (Article 124). Any assignment or winding
up of real estates or enterprises (whether industrial, commercial or others)
cannot be executed before a notary public, a real estate officer or another
authority competent to authenticate those deeds without a tax clearance from
the Tax Authorities (Article 125). The Minister must issue the executive decrees
implementing the aforementioned law (Article 128).
1.2 Law on tax evasion
We already pointed out how the unilateral assessment of income tax by the
Tax Authorities and their refusal to appraise the real profit subject to taxation
have encouraged taxpayers to conceal part of their profits and refrain from
presenting the respective documents to the Tax Authorities. A new Law,
No. 25 of 18 November 2003, was therefore promulgated immediately
after the law on income tax No. 24 of 13 November 2003 imposing
imprisonment and heavy fines on such behaviour. That law was also enforced
as from the beginning of 2004 and must be followed by circulars regulating its
enforcement.
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Definition
The law instituted in each region (mouhafazat), a Directorate of Tax
Information (the Directorate), aimed at repressing tax evasion. The latter
was defined in Article 2/a as any act committed by a taxpayer or its
representative or delegate to avoid full or partial payment of taxes and duties
by submitting to the Tax Authorities inaccurate statements, documents or
registrations, concealing or denying their existence or refraining from
submitting them on time (except due to force majeure), or destroying them
prematurely or performing an activity without informing the aforementioned
Authorities or concealing an activity that should be declared. Taxpayers
registered with the Tax Authority to be assessed with income tax or subject
to inheritance duties are only guilty of that offence if they fail to submit
the required statements on time after being duly summoned to do so (Article
2/b).
Prerogatives of the Directorate
The Directorate must repress tax evasion by gathering documentary
information on the financial status of taxpayers and the basis of taxes and
duties, conducting inquiries on tax evasion, complaints and charges thereon.
Its future employees must carry out special training (Article 3). Its Director
and main employees have the status of criminal investigators like Public
Attorneys and examining judges (Article 4).
Rules of investigation
The Directorates employees can examine all documents and information
regarding the assessment of taxes and duties, except for those subject to bank
secrecy. (There is no mention of the confidentiality imposed on the liberal
professions medical doctors, lawyers etc although their professional
regulations impose such confidentiality despite any law to the contrary.)
Taxpayers must provide with their tax returns the documents and
information required by ministerial decree in addition to the documents
required by the law on income tax and, if they are absent, must leave them
with a specific employee to be presented when requested by the Directorate
(Article 6). The investigation must be conducted jointly by two of the
Directorates employees in the taxpayers usual management offices during
normal working hours without hindering the work of that office. An official
report must be made if any concealed document is discovered during the
Directorates inquiry and that document is seized if the taxpayer refuses to
sign the aforementioned report. The public attorneys authorisation must be
sought if the concealed document is deposited outside the taxpayers office
and a report must be established on any attack or confrontation against the
Directorates employees (Article 7).
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Penalties
Any act constituting a tax evasion as defined in Article 2 is punished by one
months imprisonment and a fine amounting to 200 per cent of the evaded
tax or duty. Those penalties are doubled in case of a second offence and are
substituted by those provided for in the tax laws (Article 8). Corporate bodies
can be indicted in their own capacity or through their directors or
representatives, including the official partner in a sleeping partnership which,
under Syrian law, does not enjoy legal personality. The members of the
corporate body are jointly and severally responsible for any violation of the
law (Article 9).
Since any violation of the tax law constitutes the crime of tax evasion which
provisions prevail on the penalties provided for in the Tax Law No. 24 (1)
promulgated at the same date, one wonders why those penalties were
maintained in Law No. 24. One also wonders how a shareholder can be
responsible for a criminal act perpetrated by another partner, shareholder or
even employee against the basic principles of criminal and commercial law.
Objection and settlement
The Directors report with a summary thereof must be referred to the
competent Finance Directorate which must, within one year, take all action
provided for in the tax law. The Director must inform the Finance Directorate
of the final decision taken on the infringement and whether or not the fine
provided for in Article 8 has been paid (Article 11). Otherwise the report
must be referred by the Finance Directorate to the public attorney for
indictment of the offender (Article 12). The latter can ask the Settlement
Commission which should be put into place by decree of the Finance Ministry
for an amicable settlement of the fine (Article 13) under the procedure rules
to be defined in the same decree (Article 14). That settlement must provide
for the payment of the following amounts pro rata of the aforementioned fine:
25 per cent if the settlement takes place before indictment.
50 per cent if it takes place thereafter before any judgment .
75 per cent if it takes place after a non-final judgment (Article 15).
The payment of the tax or duty and of the fine so settled puts an end to the
criminal prosecution unless a final judgment has been rendered (Article 16).
Miscellaneous
Only 70 per cent of the fines and amounts are paid to the Finance Ministry.
Out of the balance:
10 per cent is paid to the informers or discoverers and in their absence,
to the Treasury.
10 per cent is paid to the persons effecting the seizure.
10 per cent is paid to the Finance Ministrys employees indicated by a
Ministers decree (Article 17).
Law No. 24 does not apply to the Customs and Stamps duties, which remain
subject to their specific laws (Article 18).
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Although a law cannot be amended by the Ministers circular providing the
regulations governing its implementation, the Syrian public nevertheless must
wait for those regulations which must be issued according to Article 20 of the
law, to organise its implementation.
2 ADMINISTRATIVE LAW
2.1 Merger of Ministries
There have been, until now, too many Ministries in Syria so that their efficiency
was reduced and their expenses doubled. This is why some of them were
merged on 5 October 2003.
The Ministries of Economy and Foreign Trade, on the one hand, and Supply
and Domestic Trade, on the other hand (which split on 3 August 1969 from
the previous Ministry of National Economy, to match the Eastern European
model) were merged again under the name of the Ministry of Economy and
Trade (leg. d. No. 2435).
The Ministries of Housing and Construction also merged into one new
Ministry (leg. d. No. 2436) and the Ministry of Environment (which had been
only a State Ministry dependent on the Prime Ministers office) was merged
with the Ministry of Local Administration.
2.2 Advisory Council
A leg. decree No. 60 of 22 September 2002, has created an Advisory Committee
of 30 members appointed by the Prime Minister for three years, renewable
among experts in the administrative, legal, economic, financial, technical or
other fields. Those experts may be recruited among civil servants, retired
employees or independent people. The Council should report to the Prime
Minister on the subjects referred to it by the latter. It is headed by a President
and managed by a Board of five members. The Council is divided into several
commissions whose composition, prerogatives and procedure must be
organised following a decree from the Prime Minister. The President, the
members of the Board and some Commission members must work on a full-
time basis. It is to be seen whether the Council will fulfil its aims and play a
positive role in drafting the decrees and other regulations to be issued by the
Council of Ministers and its President.
3 COMMERCIAL LAW
3.1 Foreign Trade Organisations
On 22 March 2003 (d. No. 843), several Foreign Trade Organisations
(Textiles, Foodstuffs, Pharmaceutical, Minerals, Cars and Machinery) which
split from the Public Organisation of Foreign Trade (organised under leg. d.
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No. 116 of 10 September 1966) merged again under their original name.
Only the years to come will prove whether that merger has been viable and
successful.
3.2 Public Organisations
New Public Organisations were also created, e.g.: the Public Gas Company,
based in Homs (d. No. 50 of 4 February 2003) and the Arab Company for
Transportation and Marketing of Crude Gas (leg. d. No. 38 of 12 July 2003)
following the ratification by Syria of the Convention setting up the Arab Gas
Organisation.
3.3 Free Zones
(a) New regulations for the exploitation of the Free Zones were issued as per
leg. d. No. 40 of 27 January 2003.
(b) New Free Zones have been created in the cities of Hassak, North Eastern
Syria (leg. d. No. 301 of 7 September 2002), Bou-Kamal on the Iraqi border
(leg. d. No. 302 of 7 September 2002) and Latakia city (leg. d. No. 315 of
16 September 2002).
3.4 Patents
On 1 February 2003, Syria ratified the Patent Convention of Washington,
1971.
4 TOURISM
On 20 November 2002, a law No. 65 was promulgated creating Tourism
Chambers and a national Federation thereof.
4.1 Aims
Article 4 defined the main aims of those Chambers, namely:
protecting the interests of the tourism-associated professions;
developing tourism and the planning of tourism in coordination with
the Ministry of Tourism (the Ministry);
developing the quality of tourism services at competitive prices;
advising on draft tourism legislation and regulations;
developing the promotion and marketing of tourism;
operating in tourism studies and statistics;
organising conferences, training sessions, fairs and conventions;
issuing pamphlets and advertising material;
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resolving disputes between members of the tourism industry and between
them and third parties;
organising arbitration and expertise; and
providing social and medical assistance to its members.
4.2 Fields of activity
Article 2 of the new law increased considerably the fields of activity of the
Chambers members without regard to their homogeneity. Until now, they
were organised in associations carrying out a similar activity. Under the new
law, the individuals, corporate bodies and State Organisations composing the
Chambers carry out such activities as hotels, spas, restaurants, entertainment
and leisure, movies and theatres, tourism and travel offices and agents, tourism
advertising, trade, marketing of hotel equipment, tourist transports, training
and guides (these were organised in as an independent profession under leg.
d. 54 of 8 September 2002).
One wonders how such a great variety of disparate activities could be jammed
into one single chamber when the existing Chambers of Commerce already
covered their activities. The law made it mandatory to all enterprises exercising
one of the aforementioned activities to join the Chambers (Article 5/I)
otherwise they would lose their tourist permit (Article 5/j).
4.3 Number of Chambers
Article 2/1 provided for the creation of six Chambers, each covering several
regions (mouhafazats). That number can be increased by splitting an existing
Chamber by Ministerial decree at the request of at least 40 members
representing six or more fields of activity.
4.4 Membership
Each member (except tourist guides) should first obtain a tourist licence
granted by the Ministry. He will be represented in the Chamber by a physical
person. The members are classified into three classes according to their
financial assets and activity (Article 5/k). When voting in the General Assembly,
they dispose of a number of votes corresponding to their class (Article 7).
They forfeit their membership in case of bankruptcy, damage to another
member established by a report of the general assembly approved by the
Minister or a decision from the competent Authority for frustation of a
contract.
The problem is that the law did not define the competent Authority issuing
such a serious decision and only a court of justice should be competent thereon.
The loss of membership causes the suspension or cancellation of the tourist
licence (Article 8).
If the Minister finds a member guilty of causing damage to another member
or contravening the aims of the chamber he can, upon the proposal of the
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205
Board of Administration, close the enterprise temporarily by up to three
months, suspend the membership for up to six months or cancel the
membership which leads to the loss of the tourist licence. The member can
then object to that penalty to the Minister himself who takes the final decision
thereon (Article 9). It is surprising to leave such a drastic measure to the sole
decision of the Minister. Under Syrian law, the member can nevertheless apply
to the State Council to cancel that decision.
4.5 Administration of the Chamber
The Chamber is administered by three bodies:
(1) A General Assembly composed of all members plus five representatives
of the Ministry. It elects the Board of Direction for a four-year term as
well as the Chambers representatives at the Federation and the auditor,
approves the budget, discusses the activity of the Chamber, ratifies the
Boards report and approves the Chamber regulations (Article 11).
(2) The Board of Directors composed of 18 members of which 12 are elected
by the General Assembly and six appointed by the Minister. Each of
the ten fields of activity must be represented on the Board. The Board
members elect among themselves a President, a Vice-President, a
Secretary and a Treasurer (Article 13).
(3) The Boards Bureau: this is composed of the President, the Secretary,
the Director of the Bureau and several employees selected by the Board,
as provided in the Internal Regulations established by the Assembly.
The Bureau sets the agenda of the Boards meetings, implements its
decisions and carries out the permanent management of the Chamber
Article 14). It is up to the Minister to ratify within 15 days the election
of the Board except if he finds it irregular (Article 15/2).
It is rather strange to leave it to the Minister alone to ratify the election of the
Board and his decision can certainly be annulled by the State Council at the
request of any member.
The Board must implement the decisions of the Assembly, prepare the
Chambers budget and carry out all acts which do not fall under the
competence of the Assembly (Article 16). The Minister can dissolve the Board
if it trespasses its prerogatives, violates the law or perpetrates a serious violation
of its duties. He should then convene the General Assembly to a meeting to
elect a new Board and meanwhile appoint a provisional Board pending the
election of the new one within two months (Article 17). The whole Chamber
can also be dissolved and wound up by the Minister with the approval of two
thirds of its members. Its assets are then liquidated according to the laws in
force (Article 18).
What is amazing in the absence of any law in force governing the winding
up of the Chambers assets and what is puzzling is that an elected body like
the Board should be hanging on the Ministers decision to annul it at any
time according to his own consideration. Here again, it is up to the State
Council to annul such a decision, but it would have been more legal to leave
it to the Courts to take such a serious decision, particularly since the Chambers
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206
are said to enjoy legal personality and financial and administrative autonomy
(Article 3).
4.6 The Federation
The Chambers of Tourism constitute the Syrian Tourist Chambers Federation
(Article 29).
(1) Prerogatives
Its prerogatives, which match those of the Chambers, also cover synchronisation
between the Chambers activities; developing tourism and investment in
the tourist private sector; establishing and implementing tourist plans and
studies; controlling training by the Chambers of new elements; holding
conferences and training sessions; participating, in collaboration with the
Ministry, in Tourism Organisations and similar international Federations
(Article 24 ).
(2) Bodies
Like the Chambers, the Federation has a General Assembly, a Board of
Directors and a Bureau. They are elected under a similar procedure illustrating
the overwhelming power of the Minister.
(1) The General Assembly is composed of the members of the Chambers
Boards (including those appointed by the Minister), those elected by
the Chambers and five members appointed by the Minister (Article
25). The Boards meetings are not legal without the presence of the
Ministers representative (Article 26/3).
(2) The Board of Directors is composed of 18 members of which 12 are
elected by the Assembly and 6 appointed by the Minister for four years
(Article 27/1).
(3) The Boards Bureau is composed of a President, a Secretary and a
Director in addition to administrative and financial officers as provided
for in the Statute of the Federation (Article 27/2). Here again, it is up
to the Minister to ratify the election of the Board within 15 days, failing
which a new Board must be elected.
(3) Budget
No donation can be accepted by the Chambers or the Federation without the
Prime Ministers approval (Articles 19/3, 20/c and 32/2).
(4) Dissolution
Here again, the Federations Board can be dissolved by the Minister if it
trespasses its prerogatives or perpetrates a serious contravention to its duties;
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and here again the Minister must appoint a provisional Board pending election
of a new one within two months (Article 34).
4.7 Statute
In addition to these prerogatives, the Minister can appoint a Constituent
Assembly to set out the statute (or internal regulations) governing the
Chambers and the Federation. The statute contains, inter alia:
(1) The rules of classification of the members.
(2) The composition of the councils representing, in each Chamber, the
ten various spheres of activities and the election of their representatives
on the Board of Directors.
(3) The composition of the Board of Directors in the training centres.
(4) The appointment and status of the employees.
(5) The number of delegates representing the Chambers in the Federation
(Article 35).
Article 37 provides that the Minister will issue the internal, accounting and
other regulations governing the Chambers and the Federation which
contradicts the provision of Article 11/a/6 granting the same power to the
Chambers General Assembly.
5 GUARDIANSHIP OF CHILDREN AND WOMENS RIGHTS
Under the Syrian law on Personal Status, the guardianship of children was
attributed to the mother until the age of 13, for girls, and 11, for boys. That
rule of Islamic law was quite detrimental to the interests of the child, who was
deprived of the affection and care of the mother at such an early age. The
mothers guardianship was therefore extended up to 15 years for girls and 13
years for boys by Law No. 18 of 25 October 2003.
It is suggested that this upper limit be extended until the age of majority
(18 years) or left to the appreciation of the Civil courts, since the Christian
Denominations are governed, from the Arab Conquest in 636, by their own
law regarding Family Law .
A Presidential decree No. 330 of 25 September 2002 has ratified the
international convention to eradicate segregation against women adopted by
the UN General Assembly as per its decision No. 34/180 on 28 December
1979 with reservations on the following provisions:
Articles 2 and 9 granting the children their mothers nationality.
Article 15/4 regarding the womans freedom of travel and residence.
Article 16, paras. 1/c, d, f and g, regarding equality during marriage and
after its dissolution with respect to tutorship, filiation, pension and
adoption.
Article 16, para. 2 on the legal effects of the childs engagement or
marriage.
The reason for those reservations is their contradiction with the provisions of
Islamic law.
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6 MARITIME LAW
6.1 Shipping agencies
On 31 July 31 1966, martial law order No. 30 confiscated the assets of the
Shipping Agencies of Mr. Mohammad Haroun-Shipco and on 30 December
1969, leg. d. No. 347 incorporated under the same denomination a State-
owned Company having the monopoly of shipping agencies in Syria (Article
1) and transferred to it all the assets and obligations of the confiscated company
(Article 3).
All ships calling at Syrian ports and all shipping companies operating in
Syria were then bound to appoint Shipco as their agent. The previous agents
had to cease their activity, although they continued to provide services to
ships calling at the Syrian ports or representing Protection and Indemnity
clubs.
On 8 September 2002, legislative decree No. 55 authorised ships and
shipping agencies transporting passengers or carrying goods to the private
sector or in transit to appoint Syrian nationals or companies as their agents as
per a licence granted by the Ministry of Transport, who would issue a decree
setting out the conditions of obtaining that licence and determining the fees
and commissions that should be paid to Shipco to put into effect the agency.
The second decree was issued on 10 September 2002 under No. 1100 and
set out the fees and commissions payable to Shipco according to the tonnage
of the ship. It was amended by decree No. 750 of 8 May 2003. On 10 September
2002, the Ministry also issued another decree No. 1101 setting the registration
conditions of an agency. That decree was later replaced by decree No. 751 on
8 May 2003. Under that last decree, the licence is granted for one year
renewable to Syrian nationals or Syrian companies entirely owned by Syrians
(Article 1). Shipowners carrying containers can freely select their agents
(Article 3). The agent represents his principal (whether shipowner, charterer
or operator) before the Authorities, the courts and third parties.
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209
Iraq
Sabah Al-Mukhtar*
Preface
This is the second time in ten years that I find myself driven to have a preface
to my survey. Ten years ago in 1994, when the first volume of the Yearbook of
Islamic and Middle Eastern Law first appeared, Iraq was in a unique situation
following its invasion of Kuwait and the ensuing war that devastated both Iraq
and Kuwait. Ten years ago there was a state which was almost reduced to a
U.N. mandate territory, as a result of several U.N. resolutions which came at
the rate of two a month.
Ten years on and there is no Iraq as a state. The land of the two rivers which
was called in olden times the fertile Crescent, Mesopotamia and its more
than 25 million people is less than a mandated territory. It is a territory that is
illegally occupied by the U.S. army with support from the U.K. armed forces
and smaller and mostly symbolic armies of other countries (Poland, Spain,
Korea inter alia) so that it is possible to claim that there is a coalition force
occupying Iraq.
In the closing days of 2002, the United States with support from the United
Kingdom, announced that they were to take action against Saddam Hussain
and invade Iraq on the grounds that it was a danger to International peace
and stability because it had weapons of mass destruction. The UK Attorney-
General advised HM Government that there was no need for a U.N. Resolution
to occupy Iraq.
The occupying force dissolved the army (about 400,000), all the security
services and police (about 250,000) and the ministries of Foreign Affairs,
Planning and Information (about 50,000). Additionally banned was the Baath
party, firing those who were members from their work (about 500,000). This
action alone disenfranchised almost 4 million Iraqis. The occupation was
followed by looting and destruction that destroyed the fabric of the country.
Courts, the land registry, census records, libraries, museums, every ministerial
building (except the Ministry of Oil) were destroyed, looted or burnt.
* Legal Consultant in Iraqi, Arab & Islamic Law, Arab Lawyers Network, London.
This contribution was written prior to the most recent developments, i.e. the announcement
that sovereignty would be transferred to the Iraqi people via an interim government on 30 June
2004. This has now been appointed with a Prime Minister, Iyad Allawi; a Cabinet of Ministers;
a President, Ghazi al-Yawer; and two Vice-Presidents. Its main functions will be to prepare for
elections to be held in January 2005. A U.N. Security Resolution giving effect to the new
arrangements was passed unanimously on 9 June 2004 (see post, Part III, pp. 391-398, for
full text).
210
The occupying force which calls itself the Coalition Provisional Authority
(CPA) is headed by Ambassador Bremer of the United States, who is called
Administrator. The Administrator has more powers than has had the
combined powers of all those who ruled Iraq from the British Political Resident
of the 1920s through the King (1932-1958) and the five presidents of Iraq
since then, including Saddam Hussain. He has all the Executive, Legislative
and Judicial authority.
Regulation No. 1 provides in section 1.2 as follows:
2) The CPA is vested with all executive, legislative and judicial authority necessary to
achieve its objectives, to be exercised under relevant U.N. Security Council resolutions,
including Resolution 1483 (2003), and the laws and usages of war. This authority
shall be exercised by the CPA Administrator.
The same Regulation provides that the applicable laws shall remain in force
which is consistent with the Geneva Convention protocols relating to an
occupying force. Section 2 provides:
Unless suspended or replaced by the CPA or superseded by legislation issued by
democratic institutions of Iraq, laws in force in Iraq as of 16 April 2003 shall continue
to apply in Iraq insofar as the laws do not prevent the CPA from exercising its rights
and fulfilling its obligations, or conflict with the present, or other Regulation or
Order issued by the CPA.
However, the practice is totally different. The CPA has issued Regulations that
are contrary to the Geneva Convention and changed many laws. Below are
some of the more important ones.
1 CONSTITUTIONAL AND ADMINISTRATIVE LAW
The Transitional Administration Law (TAL)
The Provisional Governing Council, which has no legal powers, being an agent
of the occupying power, is attempting to pass legislation. This is despite the
fact that the CPA has repeatedly declared that the Governing Council has no
power and is to be replaced by an Iraqi Interim Government. The main work
was to produce a Transitional Administration Law.
1
This has been done and
the final text has been confirmed. In general terms it is made up of 62 Articles.
It follows the standard structure of constitutions in use in many Arab countries,
including Iraq. Following are the main provisions:
Article 2 provides that during the transitional period (30.6.2004-
31.1.2005), TAL shall be applicable. During that period a transitional
government shall be formed, draft a constitution and hold an election
for a national assembly.
Articles 3-9 inter alia provide that: TAL shall apply throughout Iraq, Iraq
is a republic, Islam is a source of legislation, the Kurdish language may
be used throughout Iraq.
Articles 10-23 contain the basic rights which, inter alia, include: respect
for human rights and freedoms, recognition of duality of nationality.
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1 For full text, see post, Part III, pp. 391-417.
211
Articles 24-29 deal with the transitional government. They provide that
the organs of the state shall be made up of a presidential council, national
assembly, council of ministers and the judiciary. The powers of the federal
government are explicitly specified in Article 25. Existing laws shall remain
in force until repealed or amended, as well as those of the occupation
force (Coalition Provisional Authority, CPA). No militias shall be created
except by a federal law. The powers of the CPA and that of the Interim
Governing Council shall cease by 31.1.2005.
Articles 30-34 deal with a Provisional National Assembly which, inter alia,
provides that laws shall be made in the name of the people. They provide
that the National Assembly shall have 275 elected members who must be
at least 30 years old, have at least a secondary school certificate and who
must not have been a member of the Baath party or otherwise must sign
a declaration denouncing their past.
Articles 35-42 detail the functions and rights of the Provisional Executive
Authority, who are appointed by the Presidential Council and who are
answerable to the National Assembly.
Articles 43-47 deals with the Federal Judicial Authority whose members
are appointed by the government but is independent of it. A Federal
Court is to be set up whose jurisdiction is to determine differences
between Federal and local agencies. The Federal Judicial Authority does
not oversee the courts in the Kurdish area. Judges have immunity except
in certain circumstances.
Articles 48-51 accept that the establishment of the Special Court by the
CPA is ratified by TAL. Similarly the other entities set up by the CPA such
as the Council for the de-Baathification of Iraq and Property Claims
Commission were also accepted as ratified.
Articles 52-58 deal with matters relating to regions, local authorities and
municipalities. They provide that a system which prevents Iraq from having
a strong central government must be put in place. It recognises the
Kurdish Government as the proper authority in all the areas it controlled
as at the date of occupation (19.3.2003). The Kurdish Government shall
have full authority exclusively to operate that part of Iraq with the right
not to implement the Federal laws within the Kurdish area. Each
Govornorate will have the authority to appoint its own council, governor,
municipal councils. Article 58 addresses the questions of boundaries and
properties and repatriation and relocation of people who have grievances
or have claims that are disputed by other ethnicity such as the city of
Kirkuk, which the Kurds claim is a Kurdish city, while the Turkumans
and Arabs claim otherwise.
Articles 59-63 provide for the contents of the proposed constitution, the
manner of drafting, consultation and the referendum on its provisions
by 15 August 2005.
The CPA is hailing TAL as a model for democracy and the most advanced
constitution in the region. While certainly there is a major change from the
preceding Constitution (1970), the problems have always been in the
application and in the interpretation. Even at the time that the CPA and the
Provisional Governing Council are celebrating democracy, rule of law,
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212
accountability and human rights, they are holding more than 7,000 Iraqis
without any charge, access to legal representation or indeed even without the
basic human needs.
2 JUDICIARY
Order No. 13 established the Central Criminal Court. It provided for the
establishment of a Central Criminal Court to sit in Baghdad. It has two
chambers:
Investigative Court, and
Trial Court.
The Investigative Court has a single judge with jurisdiction over all criminal
offences. The Trial Court has three judges and has jurisdiction only when
matters are referred to it by the Investigative Court. The Order sets out the
qualification of judges amongst which is that they must have no affiliation to
the Baath party. The CPA administrators have the power to remove any judge
and the authority to appoint them. The CPA provides that the judges must be
independent and must be fair. Judges may not refuse to try a case. Hearings
are to be in public, with transcripts kept, and there must be a court registry.
The provisions are a shortened version of the provisions of the Iraqi Code
of Criminal Procedures and the Penal Code, except that this court is a specially
composed court set up by the occupying force, presumably to fulfil some
objective, as ordinary Iraqi criminal courts could be used.
To make the judiciary more acceptable to the occupying force, the CPA
issued Order No. 15 to set up a Judicial Review Committee. The Judiciary Act
of 1979 was suspended. The Committee is made up of three Iraqi and three
international members to review all judges and members of the judiciary
and to remove them from office. As a result, hundreds of judges were removed
from their post.
To further control the judiciary, a new Council of Judges was established by
Order No. 35. The Judicial Organisation Law No. 160 of 1979 and the Public
Prosecution Law No. 159 of 1979 were suspended. The new Council is headed
by the President of the Supreme Court and its members are the Presidents
and Directors General of the Public Prosecution Service and other senior
judges that have been appointed by the CPA being members. They are charged
with overseeing the work of the judges, hearing complaints, and disciplining
them when necessary.
All cases before foreign courts in which Iraq is involved were assigned to a
new Legal Department in the Ministry of Justice, in accordance with Order
No. 32. This is to replace the one that was attached to the Council of Ministers
prior to the occupation of Iraq.
The Governing Council was directed to establish a Special Court by Order
No. 48. The Court is to try Iraqis charged with crimes against humanity, war
crimes and crimes of genocide. Non-Iraqis may be appointed as judges.
Order No. 17 provides for total immunity from Iraqi legal process. Such
immunity is so wide it covers the CPA, its personnel, occupation forces, liaison
missions, contractors and companies. The immunity is in respect of any and
all matters.
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213
3 COMMERCIAL
Notwithstanding the Geneva Convention, which prohibits an occupying force
from changing the laws of the occupied territories, the CPA issued host of
orders doing just that.
These measures include the following:
Liberalising Iraqi trade by Order No. 12.
Issuing new currency by Order No. 43.
Setting up a Development Fund by Regulation No. 2 to deal with matters
concerning foreigners investing in Iraq.
Licensing telecommunications companies by Order No. 11.
The Central Bank of Iraq has been reorganised to be independent by
Order No. 18.
A new bank is established by Order No. 20 to deal with trade between
Iraq and the outside world with a capital of US$ 100 million. It is called
the Trade Bank of Iraq.
A new Banking Law was published as Order No. 30 to open the door for
foreign banks to open offices in Iraq.
A tax strategy has been established by the CPA as part of its function as
an occupying force in accordance with Order No. 37 Further Order No.
49 was published as the strategy for 2004.
4 LABOUR LAW
Order No. 2 dissolved tens of state entities resulting in a massive number of
people becoming unemployed. However, the CPA began establishing a new
police force, army and civil defence corps which has opened new job
opportunities.
Salaries of state employees were reformed by Order No. 30.
5 PROPERTY LAW
A number of Regulations and Orders were made to deal with property. These
include:
Regulation No. 4 for the Establishment of Iraqi Property Reconciliation
Facility.
Regulation Nos. 8 and 9 setting up Iraq Property Claims Commission
Order No. 6 deals with eviction of persons illegally occupying public
buildings.
Order No. 9 for the Management and Use of Iraqi Public Property.
The Law of Real Estate Nos. 56 of 2000 and 87 of 1979 were amended by
Order No. 29.
Order No. 25 provides for the confiscation of properties in the case of
certain crimes.
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6 CRIMINAL LAW
Certain provisions of the Iraqi Penal Code No. 11 of 1969 were repealed by
Order 7 of the CPA. Amendments include provisions that judges, prosecutors
and police are to enforce the CPA orders, that the penalty for those who were
members of the Baath party but were at the same time and covertly members
of other political parties would not apply. The penalty for abusing the President
of the Republic of Iraq is no longer applicable. The penalties for publication
offences are no longer applicable. More importantly, the whole chapter
containing Articles 156-219 dealing with crimes against the State, treason,
crimes against public officials and authorities are no longer applicable.
As a result, public officials, both civilian and military, became the target of
sometimes unprovoked violence, to the extent that doctors in hospitals stopped
working after a number of them were killed, injured or assaulted by patients.
Teachers and other officials who wanted or could work were abused and they
also stopped work. On the other hand, the CPA began without warrants or
due process detaining people on suspicion of being members of the Baath
party.
Capital punishment was suspended in Article 4 of the order, but revenge
killing and assassinations were being organised by various militias and
individuals. No arrests or attempt to stop these practices were made by the
CPA. The same article prohibited torture, cruel or inhumane treatment. The
CPA has detained more than 7,000 persons without access to any
representation. Reports of torture and inhumane treatment has been
repeatedly and consistently published by Iraqi as well as Western press.
Order 31 was made to address the breakdown of law and order in Iraq. The
CPA declared formally that it was a liberating force and not a police force to
keep law and order. The two most terrifying crimes were the kidnapping of
children for ransom and for kidnapping women and girls for indecent assault
and rape. The order amended the relevant provisions of the Penal Code and
Code of Criminal Procedures to impose life sentence for these two crimes.
Other provisions provided for the strengthening of sentences for destruction
of public property, utilities and for theft of vehicles and means of transport.
7 INTERNATIONAL LAW
The U.N. Security Council has issued three Resolutions in 2003 in respect of
Iraq:
UNSCR 1483 was intended to legitimise the occupation and lift the
sanctions by handing Iraq over to the United States.
2
UNSCR 1500 was passed to give legitimacy to the Provisional Governing
Council whose members were imported by the United States from outside
to rule Iraq.
3
Finally UNSCR 1511 was passed to condemn acts of violence.
4
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2 For full text, see post, pp. 381-387.
3 For full text, see post, p. 387.
4 For full text, see post, pp. 387-390.
215
8 EDUCATION
No orders or Regulations were made, as this subject seem to be less important
from the point of view of the CPA.
9 HEALTH
No orders or Regulations were made, as this subject seem to be less important
from the point of view of the CPA.
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216
Jordan
Hamzeh Haddad*
1 JUDICIAL AND LEGAL SYSTEM
1.1 This report appertains to the Acts published in the 2002 Official Gazette,
as per Annex I and other legal principles as enunciated by the Civil Court
of Cassation which are published in the Bar Association Journal for the
year 2002.
1.2 It is crucial to note that all the Acts contained therein are provisional in
accordance with Article 94 of the Constitution which stipulates:
(i) In case where the National Assembly is not sitting or is dissolved, the Council
of Ministers has, with the approval of the King, the power to issue provisional
laws covering matters which require necessary measures which admit of no
delay or which necessitate expenditures incapable of postponement. Such
provisional laws, which shall not be contrary to the provisions of the
Constitution, shall have the force of law, provided that they are placed before
the Assembly at the beginning of its next session, and the Assembly may approve
or amend such laws. In the event of the rejection of such provisional laws, the
Council of Ministers shall, with the approval of the King, immediately declare
their nullity, and from the date of such declaration these provisional laws shall
cease to have force provided that such nullity shall not affect contracts of
acquired rights.
(ii) Provisional laws shall have the same force and effect as laws enacted in
accordance with paragraph (ii) of Article (93) of this Constitution.
These Acts have now been referred to Parliament to deal with them in the
appropriate manner.
1.3 Court of Cassation Decision No. 1598/1999
Should there be a legislation governing a specific matter, it is impermissible to
resort to custom to derive the provisions of the law, but rather the text of the
legislation should be applied to the case at hand.
1
* Counsel and Attorney at Law, Law and Arbitration Center, Amman, Jordan.
1 Bar Association Journal, p. 389, 2002.
217
1.4 High Court of Justice Decision No. 348/2001
The Court is vested with the power of judicial review over the constitutionality of
the provisional Acts. It is competent to entertain and rule on any application for
the suspension of a certain provisional Act such as the Act pertaining to
parliamentary elections. The issuance of provisional Acts by the Council of
Ministers is not considered a sovereign act. The mere citizens and electorates and
parliamentarians or Heads of political parties does not entail that they have a locus
standi. They have to produce evidence that they have a direct and distinct interest
in the case and that they suffered as a result of the introduction of the Act and the
new administrative division of the electoral districts.
2
2 CONSTITUTIONAL LAW
2.1 Reference is made to the following Acts:
(1) The Provisional National Committee for Humanitarian International Law Act
No. 63 for 2002.
(2) The Provisional National Centre for Human Rights Act No. 75 for 2002.
(3) The Provisional Amending Parliamentary Elections Act No. 27 for 2002.
2.2 Pursuant to the first Act, a National Committee for Humanitarian
International Law, a body corporate, was set up, comprising of 15 Members
distributed over a number of different walks of life ten from the Public
Sector, one from Parliament, three from the Private Sector and one from
the National Society of the Jordanian Red Crescent. The Committees
objective is to introduce, define, entrench and consolidate the principles
of humanitarian international law on the national level. In realising these
objectives the Committee should carry out the following:
(a) put in place a broad policy and programme aimed at diffusing
knowledge of, and awareness in, humanitarian international law;
(b) exchange information and experience with local, Arab and inter-
national organisations active in the sphere of humanitarian inter-
national law, including the International Committee of the Red Cross;
(c) conduct research, prepare Reports and issue pamphlets relating to
the subject matter.
(d) Participate in developing legislation pertinent to humanitarian
international law.
2.3 Pursuant to the second Act, a National Centre for Human Rights was set
up with the following aims:
(a) to strengthen principles of human rights in Jordan;
(b) non-discrimination between citizens on ground of race, language,
religion or gender;
(c) strengthen and promote democracy in Jordan;
(d) seek to induct Jordan in Arab and International Conventions
appertaining to human rights.
Jordan
218 Country Surveys
Amongst the Centres duties is to monitor violations of human rights and
public liberties in Jordan and to seek to put a stop on such violations.
2.4 Pursuant to the third Act pertaining to elections,
3
the following class of
persons is barred from running for elections unless he tenders his
resignation prior to election time and providing that the said resignation
is accepted by the competent authorities:
(a) employees at Ministries and other Government Departments and
Public Bodies and Corporations;
(b) employees of Arab, Regional and International Bodies;
(c) Ammans Mayor and members of the Mayoral Council and employees
therein;
(d) Heads of Provincial Councils, their members and employees therein.
Resorting to court is a right that does not give the other party the right for
compensation for damages resulting from losing his case unless he [the plaintiff]
abused his right and intended to trespass on or abuse the other party.
4
2.6 High Court of Justice Decision No. 348/2001
The Court is vested with the power of judicial review over the constitutionality of
the provisional Acts. It is competent to entertain and rule on any application for
the suspension of a certain provisional Act such as the Act pertaining to
parliamentary elections. The issuance of provisional laws by the Council of Ministers
is not considered a sovereign act. The mere citizens and electorates and
parliamentarians or Heads of political parties does not entail that they have a locus
standi. They have to produce evidence that they have a direct and distinct interest
in the case and that they suffered as a result of the introduction of the Act and the
new administrative division of the electoral districts.
5
3 CIVIL LAW
Pursuant to the Civil Code, the age of majority is 18 full solar years; accordingly,
should a minor who has not attained that age dispose of his property, such sale
shall be rendered null.
6
3 It is worth noting that the Parliamentary women quota system was introduced in 2003 pursuant
to Regulation No. 17 for 2003 (The Official Gazette, p. 716, 2003). According to this Regulation,
six Parliamentary seats were reserved to women for one time, namely, when the first
parliamentary elections are to be held. However, it is permissible for the Council of Ministers
to extend the validity of this Regulation and apply it in successive Parliamentary elections
should public interest require so.
219
Should a contract be dissolved by reason of nullity, the Parties thereto should be
restored to the position they were in prior to the contract; this entails that each of
the Parties should reimburse the other of whatever advance he received in
pursuance of the nullified contract.
7
Anyone who had suffered harm as a result of a traffic accident shall be entitled to
moral damages for the deformity and handicap inasmuch as they might impact his
life and social standing.
8
The detonation of a mine in the testator of the Plaintiffs renders the Ministry of
Defense and the General Command of the Armed Forces liable by virtue of being
the party who had placed the mines in the area and had failed to take the necessary
measure and precautions to stop people from coming near them and had also
failed to place warning signs. In this case, damages shall be assessed to the extent
of the damage the injured had incurred and his lost profit. Spouses and close
family members are entitled to moral compensation due to the death of the injured.
9
The Ministry of Education is responsible for the safety of the pupils during their
presence in the schools buildings and, accordingly, the said Ministry is held liable
for the fall of a pupil from the schools fourth floor window which had no security
irons.
10
4 CIVIL PROCEDURE AND EVIDENCE
4.1 Pursuant to Act No. 26 for 2002, which amended the original Civil
Procedure Act, a new department was set up at the Court of First Instance
to administer civil cases. This Department is comprised of a judge or more
with the following tasks:
(1) supervising the case file once it lodged at the Court;
(2) taking all necessary measures to notify the Parties expeditiously;
(3) setting a date for a Hearing and notifying the Parties thereof within
seven days;
(4) meeting with the Parties legal representatives in a Preliminary Meeting
and attempting to narrow down the points of agreement and
contention and spurring them to reach an amicable settlement to the
dispute between them;
(5) recording the settlement or any other agreement reached by the Parties
to the dispute.
Jordan
220
4.2 Among this Acts provisions is a stipulation that authorises the judge, either
on his own accord or upon the request of either Party to the dispute, to
refer the said dispute to a mediator to settle the case amicably. The
mediator is required to issue his decision within three months from the
date of the referral, irrespective of the nature of the decision. Should the
mediator reach a settlement for the dispute, then settlement is subject to
being endorsed by the judge.
In commercial matters, testimony is permitted as a means of submitting evidence
either to prove a debt or discharge therefrom. Admission by someone that he
issued promissory notes does not preclude him from proving paying their value
through testimony.
11
An accounting error does not nullify a judgment as long as said error is a material
one that could be rectified by the competent court pursuant to the Law of Civil
Procedure.
12
5 COMMERCIAL LAW
5.1 A number of Acts relating to commercial law were passed in Jordan; among
them are the following:
(1) The Provisional Amending Companies Act No. 4 for 2002.
(2) The Provisional Amending Lease Financing Act No. 16 for 2002.
(4) The Provisional Transportation of Goods by Road Act No. 46 for 2002.
(5) The Provisional Competition Act No. 49 for 2002.
(6) The Provisional Amending Securities Act No. 55 for 2002.
(7) The Provisional Amending Oversight of Insurance Activities Act No.
67 for 2002.
(9) The Provisional Amending Securities Act No. 76 for 2002.
5.2 Among the essential amendments to the Companies Act pursuant to Act
No. 4 for 2002 is its introduction of a new form of company, namely, a
private shareholding company. The main hallmark of these companies is
that they are with limited liability, in that shareholders liability is limited
to the amount of their contribution in the said company and does not
extend to their other personal assets and funds. Private shareholding
companies can be constituted by a sole person and their capital must be
no less than JD50,000 (equivalent to US$70,000). Administration of said
company is to be conducted in accordance with what the partners consent
to in its Memorandum of Association.
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221
5.3 In so far as the Lease Financing is concerned, it was unbeknown in Jordan
as a nominal contract prior to the promulgation of this Act, and its
provisions were subject to the general rules of contract. However, Act No.
16 for 2002 expressly acknowledged these types of contract and defined
them as contracts that apply to both movable and immovable property,
whereby the tenant (lessee) could enjoy the benefit of a certain property
in consideration for a rent payable to the landlord (lessor), and providing
that all risks relating to the leased property should fall on the lessee. At
the termination of the contract, the lessee shall have the option of owning
the property in return for the amounts he had already paid in rent, or any
other sums agreed upon between the lessor and the lessee.
In a commercial agency contract, it is permissible for the Jordanian Agent and the
non-Jordanian Principal to agree to refer any dispute to arbitration outside Jordan
and to apply a foreign law to the said dispute.
13
Any person who had suffered harm as a result of the using of his commercial name
without his permission, shall have the right to claim damages; this applies to both
natural and corporate persons.
14
6 LABOUR LAW
6.1 Two Acts have been passed during 2002, namely:
1. The Provisional Amending Labour Act no. 51 for 2002.
2. The Provisional Amending Labour Act no. 60 for 2002.
6.2 Among the basic provisions contained in the first Act is one relating to
the impermissibility, generally, of making someone work more than 8 hours
a day or 48 hours a week, rest and food breaks not included; however, it is
permissible to spread out the weekly working hours and rest times and
food breaks provided that it does not exceed a daily total of 11 hours.
Labour Law has exempted from its application a class of workers, namely, domestic
servants, gardeners, cooks, and their likes. A private chauffeur does not differ from
a personal servant as far as the inapplicability of the provisions of labour Law on
them is concerned.
15
There are no provisions in the Commercial Law that regulate letters of guarantee;
accordingly, the Court shall derive them through inference, judicial precedents,
Jordan
222
jurisprudence and the dictates of justice and equity. The Court of Cassation has
settled the principle that the guarantor banks obligation is independent from the
guarantees obligation. The letter is self-sufficient and no foreign element has any
bearing on the contents thereof once the amount falls due. The amount subject to
the guarantee is fixed and due upon issuance of the said letter by the bank and its
receipt by the beneficiary.
16
7 PROPERTY LAW
No (major) changes have occurred under this title.
8 INTELLECTUAL PROPERTY
The refusal to register a Trademark, DUMBO, to a certain individual on ground
that it is identical and similar to the Trademark, DUMBO, which is owned by Walt
Disney Company, and is registered under its name in a host of countries around
the world, is in accordance with the law.
17
9 FAMILY LAW
10 CRIMINAL LAW AND PROCEDURE
During the year 2002, a number of Acts have been passes, namely:
10.1 (1) The Provisional Military Penal Act No. 30 for 2002.
(a) The Provisional Military Criminal Procedure Act No. 31 for 2002.
(b) The Provisional Formation of Military Courts No. 32 for 2002.
(2) The Provisional Amending Penal Act No. 33 for 2002.
(3) The Provisional Amending Drugs and Mental Influences Act No. 13
for 2002.
11 PUBLIC INTERNATIONAL LAW
11.1 Jordan has joined and/or signed a number of international Treaties and
Conventions, both multilateral and bilateral, of which are:
Country Surveys
223
Subject Page No. Issue No. Issue Date
A Treaty for Free Commercial
Exchange between Jordan and Kuwait 1107 4538 1/4/2002
Provisional Act No. 12 for 2002 The
Ratification of the Basic Law of the
International Criminal Court 1285 4539 16/4/2002
An Agreement to set up a Free Trade
Zone between Jordan and Syria 1728 4542 1/5/2002
Jordans Membership of the
International Centre for Genetic
Engineering and Vital Technology
in Italy 2437 4549 2/6/2002
A Treaty of Cooperation in the Sphere
of Higher Education and Science
between the Ministry for Higher
Education and Scientific Research in
Jordan and the Ministry of Education
and Science in Ukraine 2505 4549 2/6/2002
Commercial Treaty between Jordan
and Slovenia 2814 4551 16/6/2002
A Treaty Appertaining to Legal and
Judicial Cooperation between Jordan
and Algeria 2958 4553 1/7/2002
Ratification of the Documents of the
International Postal Union 3381 4556 16/7/2002
The Treaty on Economic and
Commercial Cooperation between
Jordan and Ukraine 3382 4556 16/7/2002
A Treaty on Commercial Navigation
between Jordan and Syria 3609 4558 1/8/2002
The International Treaty on Plant, Food
and Agricultural Genetic Resources 3618 4558 1/8/2002
Cooperation Treaty between The
General Agency for Youth and Sport in
Bulgaria and the Supreme Council for
Youth in Jordan 3646 4558 1/8/2002
Treaty for Cultural Cooperation
between Jordan and Slovenia 3906 4560 15/8/2002
Jordan
224
A bilateral or a multilateral treaty enjoys a higher status than domestic law and
shall prevail in the event of a contradiction between the two, and there is no
room for the reciprocity argument as long as there is no such provision in the
treaty.
18
The JordanianSyrian bilateral treaty has barred both Parties thereto from
imposing any duties or internal taxes on industrial goods exchanged between
them that exceed the duties and taxes imposed on identical goods produced
locally or on their raw materials. And since locally manufactured clothing is exempt
from taxes, it is impermissible to impose sales tax on clothing imported from
Syria.
19
12 PRIVATE INTERNATIONAL LAW
A competent court may not enforce a foreign judgment in Jordan if it is satisfied
that one of the following instances are present, namely, if the judgment is not
final and still subject to appeal; if the judgment is repugnant to public order in
Jordan; if the Party against whom the judgment was passed was not notified of
the judgment and did not appear before the court that passed the judgment.
The onus of proving any of the above instances falls on the Party against whom
the judgment was passed. On the other hand, law did not require the courts to
refuse an application to enforce a foreign judgment if the country that had passed
the judgment does not sanction the enforcement of judgments passed by
Jordanian courts, but left it to the courts discretion.
20
13 TAXATION
A new Act amending the Public Sales Tax Act No. 6 for 1994 was passed,
namely the Public Sales Tax Act No. 25 for 2002.
14 PRINTING AND PUBLICATIONS
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225
ANNEX I
1. The Provisional Amending Securities Act No. 67 for 2002.
2. The Provisional National Centre for Human Rights Act No. 75 for 2002.
3. The Provisional Amending Companies Act No. 74 for 2002.
4. The Provisional Amending Orphans Fund Development Foundation Act No. 73
for 2002.
5. The Provisional Amending Passengers Public Transportation Act No. 72 for 2002.
6. The Provisional Visual and Audio Media Act No. 71 for 2002.
7. The Provisional Amending Municipalities Act No. 70 for 2002.
8. The Provisional Amending Jordanian State Universities Act No. 69 for 2002.
9. The Provisional Amending Formation of the Ordinary Courts Act No. 68 for 2002.
10. The Provisional Amending Oversight of Insurance Activities Act No. 67 for 2002.
11. The Provisional Amending Roads Act No. 66 for 2002.
12. The Provisional Amending Tourism Act No. 65 for 2002.
13. The Provisional Amending Public Electricity Act No. 64 for 2002.
14. The Provisional National Committee for Humanitarian International Law Act No.
63 for 2002.
16. The Provisional Amending Civil Retirement Act No. 61 for 2002.
17. The Provisional Amending Labour Act No. 60 for 2002.
18. The Provisional Amending Postal Savings Fund No. 59 for 2002.
19. The Provisional Amending Urban and Rural Development Bank No. 58 for 2002.
20. The Provisional Amending Civil Defence Act No. 75 for 2002.
21. The Provisional Amending Jordanian Investment Corporation Act No. 56 for 2002.
22. The Provisional Amending Securities Act No. 55 for 2002.
23. The Provisional Amending Public Health Act No. 54 for 2002.
24. The Provisional Amending Traffic Act No. 53 for 2002.
25. The Provisional Amending Juvenile Act No. 52 for 2002.
26. The Provisional Amending Labour Act No. 51 for 2002.
27. The Provisional Amending Protection of National Production Act No. 50 for 2002.
28. The Provisional Competition Act No. 49 for 2002.
29. The Provisional Jordanian Media Act No. 48 for 2002.
30. The Provisional Amending Jordanian Maritime Authority No. 47 for 2002.
31. The Provisional Transportation of Goods by Road Act No. 46 for 2002.
32. The Provisional Amending Education Act No. 45 for 2002.
33. The Provisional Agriculture Act No. 44 for 2002.
34. The Provisional Jordanian Institute of Diplomacy Act No. 43 for 2002.
35. The Provisional National Commission for Industrialization Act No. 42 for 2002.
36. The Provisional Exemption from Public Funds Act No. 41 for 2002.
38. The Provisional Amending Jordanian Medical Council No. 39 for 2002.
39. The Provisional Amending Immovable Property Provisions Act No. 38 for 2002.
40. The Provisional Amending Municipalities Act No. 37 for 2002.
41. The Provisional Amending Enforcement Act No. 36 for 2002.
42. The Provisional Appended Act to the General Budget Act No. 35 for 2002.
44. The Provisional Amending Penal Act No. 33 for 2002.
45. The Provisional Formation of Military Courts No. 32 for 2002.
46. The Provisional Military Criminal Procedure Act No. 31 for 2002.
47. The Provisional Military Penal Act No. 30 for 2002.
48. The Provisional Amending Orphans Fund Development Foundation Act No. 29
for 2002.
Jordan
226
49. The Provisional Amending Aqaba Special Economic Zone Act No. 28 for 2002.
50. The Provisional Amending Parliamentary Elections Act No. 27 for 2002.
51. The Provisional Amending Civil Procedure Act No. 26 for 2002.
52. The Provisional Amending Public Sales Tax No. 25 for 2002.
53. The Provisional Amending Lease and Sale of Immovable Property for Non-Jordanian
Persons and Entities Act No. 24 for 2002.
54. The Provisional Amending Antiquities Act No. 23 for 2002.
55. The Provisional Act for the Repeal of the Institution for Agricultural Marketing
Act No. 22 for 2002.
56. The Provisional Amending Jordanian Nursing Council Act No. 21 for 2002.
57. The Provisional Amending Institute for Investment and Development of National
Resources Act No. 20 for 2002.
58. The Provisional Amending Jordanian Radio and Television Corporation Act No.
19 for 2002.
59. The Provisional Act for the Repeal of the Ratification of the Agreement on Economic
Cooperation and Regulating Commercial Exchange between Jordan and Syria Act
No. 18 for 2002.
60. The Provisional Amending Civil Status Act No. 17 for 2002.
61. The Provisional Amending Lease Financing Act No. 16 for 2002.
62. The Provisional Amending Ratification of the Concession Agreement Concluded
between Jordan and the National Petroleum Company Ltd. Act No. 15 for 2002.
63. The Provisional Amending Union of Veterinarians Act No. 14 for 2002.
64. The Provisional Amending Drugs and Mental Influences Act No. 13 for 2002.
65. The Provisional Ratification of the Basic Law of the International Criminal Court
66. The Provisional Amending Juvenile Act No. 11 for 2002.
67. The Provisional Amending Professional/Vocational Licensing for the City of Amman
68. The Provisional Amending Professional/Vocational Licensing Act No. 9 for 2002.
69. The Provisional Amending Communications Act No. 8 for 2002.
70. The Provisional Amending Petra Zone Authority Act No. 7 for 2002.
71. The Provisional Amending Education Act No. 6 for 2002.
72. The Provisional Amending Postal Services Act No. 5 for 2002.
74. The Provisional Amending Accounting Bureau Act No. 3 for 2002.
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227
Palestine
Anis Al-Qasem*
1 RELATIONS WITH ISRAEL AND THE PEACE EFFORTS
Activities of the Palestinian National Authority have continued to be greatly
hampered and its authority eroded by the continued Israeli restrictions on
the movement of President Arafat and meetings of the Palestinian Legislative
Council, the continuous Israeli military incursions and activities into territories
supposed to be under the exclusive control of the Palestinian authorities,
assassinations, curfews, blockades, destruction of homes, uprooting of trees,
arrests and detention of more and more Palestinians, with the figure now
exceeding 7,000 detained without charge or simply under administrative
detention. Attempts to free the detainees produced the release of a score of
individuals who had been sentenced to imprisonment for ordinary crimes
and those sentences had almost expired. The trial of the most famous detainee,
Marwan Bargouthy, had continued.
On 30 April 2003, a press statement from the Office of the Spokesman in
Washington announced, in agreement with the United Nations, Russia and
the European Union, what has become known as the Road Map
1
based on
a vision, declared by President Bush, of a two states solution to the Palestinian-
Israeli conflict. This was seen as a new vision, although it has been declared
by the U.N. General Assembly in its Partition Plan back in 1947, with the
active support of the United States administration of the time. Be that as it
may, the Road Map, which envisaged return to the 1967 boundaries and
termination of Israeli occupation, was accepted by the Palestinians, while Israeli
acceptance was made subject to a number of provisos. This Road Map was
later adopted by Resolution 1515 of the Security Council. However, like
previous proposals, no implementation saw the light of day, and conditions
on the ground have continued to deteriorate. The situation was further
aggravated by Israels activity, contrary to the Road Map and the Mitchell Plan,
previously accepted by Israel, of the expansion of existing Israeli settlements
in Palestinian territories and the creation of new ones, and more recently,
by the construction of the security barrier, or wall which, on completion,
* Barrister and Consultant on the Laws of the Middle East, London.
1 For full text, see post, Part III, pp. 430-434.
228
would have annexed, according to U.N. reports, about 16 per cent of the
West Bank and would make the creation of a viable Palestinian state, as
envisaged under the Road Map, almost impossible.
On 21 October 2003, the U.N. General Assembly, after the Security Council
has failed to agree because of another U.S. veto, took up the question of this
wall, and adopted a resolution deeming the construction of the security
barrier illegal under international law and called upon Israel to stop and
reverse construction. The voting on this resolution was 144 for, 4 (United
States, Israel, Micronesia and the Marshall Island) against and 12 abstentions.
Israel immediately declared its rejection of the resolution, and continued
construction. On 8 December 2003, the U.N. General Assembly adopted, by
more than a two thirds majority, a resolution to refer to the International
Court of Justice the question of the legality of the wall.
2
The Palestinian intifada against Israeli occupation has also continued and is
now approaching the end of its fourth year. The three cease-fires declared by
the Palestinian resistance groups produced no similar response from Israel,
and the waves of terror and counter-terror continued.
Meanwhile, a private initiative, known as the Geneva Accord,
3
by some
Palestinians and Israelis, was launched in December 2003. The initiative
attempted to offer solutions to outstanding questions and was presented by
its authors as complementary to the Road Map. The initiative was immediately
rejected by Sharon and many Palestinians, though listened to by the U.S.
Secretary of State who met some of its authors in Washington. This initiative,
like other previous attempts and agreements, suffers from a fundamental
weakness: by not adhering to international legality, as declared by the U.N.
General Assembly and Security Council in their numerous resolutions on the
question of Palestine, it lacks the legal foundation for its acceptability and, in
fact, it gives legality to serious violations of those resolutions, particularly on
questions such as Israeli settlements, and the annexation of Jerusalem, both
declared illegal by the Security Council, and the right of refugees to return to
their homes. None of the agreements, proposals or initiatives, so far, has
attempted to give effect to these resolutions, although lip service reference is
frequently made to them, and that remains a basic failure to provide a
permanent solution to the problem.
4
There had been no constitutional developments to report, after the President
had promulgated the Basic Law and, later, the amendments thereto creating
the office of a prime minister. The first prime minister, Mahmoud Abbas, Abu
2 For documents regarding the wall, see post, pp. 419-428. See also Part IV, pp. 495-506.
3 For full text, see post, pp. 435-456. The main authors (protagonists) are Mr. Yosi Beilin (on
the Israeli side) and Mr. Yasser Abd-Rabbo (on the Palestinian side).
4 This contribution was written before the most recent developments involving Sharons plan
of a so-called withdrawal from the Israeli settlements in Gaza and the continuing targeted
assassinations of Hamas leaders and the attacks, killings and demolitions in Rafah (see post,
p. 428).
Country Surveys
229
Mazin, was appointed in March 2003, and his government won the confidence
of the Legislative Council. However, Abu Mazin had to submit his resignation
primarily because of disagreement with the President over the control of the
security services, loss of support of Palestinian public opinion and a lack of
positive steps on the part of Israel, which had been insisting on the appointment
of a prime minister and welcomed the appointment of Abu Mazin, to alleviate
the suffering of the Palestinian civilian population. A new prime minister,
Ahmad Qurei, Abu Ala, was appointed in September 2003, and made a
meeting with Israels prime minister conditional upon his fulfilment, on a
reciprocal basis, of the obligations under the Road Map and the removal of
restrictions on President Arafat. The new prime minister urged, and succeeded,
in getting the various Palestinian resistance groups to meet for the purpose of
declaring another cease-fire, conditional upon Israel doing the same. The
groups met in Cairo, under Egyptian sponsorship but, on 7 December 2003,
when the talks ended, they declared their agreement not to attack Israeli civilian
targets, while they disagreed on other points, including a common political
platform. Israel refused the conditions laid down by the Palestinian prime
minister for a meeting with Prime Minister Sharon and, in response to the
talks in Cairo, declared that it would only be ready to reduce the level of its
activities in the Palestinian territories, but not to cease such activities. The
situation has thus remained deadlocked.
3 LEGISLATION
The Legislative Council passed a Water Law, Jerusalem (the Capital) Law, and
the Banking Law. All of these have been signed by the President. More
legislation is in the pipeline, but the disruptions caused by Israel have frequently
prevented the Legislative Council from holding its meetings and conducting
its business. Attempts to use modern technology to overcome obstructions
on holding physical meetings have been made, but even these were frequently
hampered by curfews which prevented members from reaching video-camera
sites. Thus, the Council was able to hold only eight meetings in the period
from 5 September to 31 December 2002.
It is noticeable that more and more individual members of the Council
have been active in introducing private members bills, probably because of
the lack of a proper government legislative programme.
4 PRESIDENTIAL AND LEGISLATIVE COUNCIL
ELECTIONS
Presidential and Legislative Council elections were held in 1996 and, according
to the Elections Law, the term of both the President and the Council was for
the interim period, which, according to the Oslo Declaration of Principles,
should have ended on 4 May 1999. Nevertheless, the President and the Council
have continued to exercise their powers to the present. On 10 September
2002, the President issued a decree setting 20 January 2003 as a date for general
elections. However, on 22 December 2002, the Palestinian leadership issued a
Palestine
230
statement postponing the elections indefinitely because of Israeli continued
incursions into Palestinian areas, sieges, curfews and restrictions on movements
of Palestinians, which made the holding of proper elections impossible. These
impediments and hurdles have continued and no date has yet been fixed. In
the meantime, a Committee has been working on making recommendations
for a new Electoral Law, and a Draft Electoral Law continues to be discussed
in the Legislative Council.
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231
Lebanon
Nayla Comair-Obeid*
Lebanons position at the crossroads between Asia, Africa and Europe, its
long tradition of a liberal economy, full currency convertibility, free movement
of capital and a solid and well-developed banking system, allowed it in the
past to develop as a major trade hub in the region. The long years of war and
its aftermath having tarnished this image, Lebanon is now eager to restore
and further develop these unique characteristics. In this context, the present
legal framework offers a relatively sound and secure basis for all types of
commercial transactions, although some laws have failed to adapt to changing
local and international circumstances. However, the special Reform Committee
at the Ministry of Justice is presently revising those outdated parts of the legal
framework.
The major problem of Lebanon lies in its heavy indebtedness. The Paris II
Conference, as well as the conclusion of the Euro-Med Association Agreement,
represent important steps in helping Lebanon tackle this issue.
After the Paris II Conference, the Government had to meet two priorities:
implementing economic reform and advancing on privatisation. Lebanon had
already started to develop a privatisation policy for many service sectors owned
by the public sector, such as telecommunications, electricity, Tobacco Regie,
water distribution, ports, M.E.A. etc; but there has been no political consensus
over the form and type of their privatisation: should the Lebanese government
entrust the private sector with the management and operation of these service
sectors while their ownership remains in the hands of the public sector, or
would it be a partial or total leasing or a selling of the public assets to the
private sector? It is possible to have more than one formula. In the meantime,
an institutional reform is being carried out to restructure these services and
improve their operational efficiency.
In line with the economic and financial reforms, the Association Agreement
with the Euorpean Union represents a vital cornerstone in Lebanons trade
liberalisation strategy.
The Euro-Med Agreement consists of financing technical assistance,
involving support for the modernisation of administration and related public
* Doctor of Laws, Professor of Law at the Lebanese University and Attorney, Beirut Bar.
232 Country Surveys
institutions, the liberalisation of trade, the exchange of knowledge and
experience and staff training and support. This Agreement aims at providing
an appropriate framework for political dialogue between EU member countries
and Lebanon, establishing the conditions for the liberalisation of trade in
goods, services and capital and promoting trade and social, economic and
cultural cooperation. The ultimate objective of partnership is the creation of
an Euro-Mediterranean free trade area by 2010.
It is also a step in the right direction towards Lebanons accession to the
WTO where Lebanon has had observer status since January 1999. Furthermore,
Lebanon has commenced tariff dismantling with regard to the Greater Arab
Free Trade Area. Consequently, Lebanons trade liberalisation policy will
inevitably render it a primary trade centre in the region and a central
intersection between the Greater Arab Free Trade Area and the Euro-
Mediterranean Free Trade Area.
Law No. 403 dated 5 June 2002 ratified Lebanons adhesion to the
Washington Convention, which became effective for Lebanon on 25 April
2003. Adhesion to ICSID aims to facilitate the settlement of investment disputes
between governments and foreign investors in view of helping promote
increased international investment.
In conclusion, no important legislative reform was carried out this year in
Lebanon, but many important decisions were rendered by the Lebanese Courts
in different fields, as detailed below.
1 CIVIL LAW
1.1 Court of Appeal decision: the preferential right is a personal right
1
The appellant requested that the registration of the estate, in her name, be
imposed on the respondents, arguing that she exercised the preferential right
stipulated in the co-ownership regulation. The judgment has raised the issue
of determining the effects of breaching the preferential clause, as stated in
the rules of building administration.
The Court ruled that both doctrine and jurisprudence currently admit that
the contract of preference constitutes a promise to tender contract, by priority,
to the promisee, and should the promisor fail to meet his promise, he will be
bound by a contractual liability which consists in a compensatory relief and
not in giving the thing. Thus, the obligation is an obligation to do and not an
obligation to give, i.e. to transfer ownership; as such, the right of preference
is not a chattels real but a personal right.
Therefore, the appellant cannot be vested with any right to deprive the
purchasers, i.e. the respondents, of their ownership in case the promisor
fails to comply with the right of preference. The lawsuit is, thus, due to be
rejected.
This judgment corroborates the jurisprudence position which considers
the right of preference as a personal right that entitles, if breached, to a right
1 Beirut Court of Appeal, Tenth Chamber: judgment delivered on 15 January 2003.
233
for compensation but not to the right of forcing the failing vendor to transfer
the estates ownership to the party who exercised the right of preference.
This is one of the rare decisions issued on the subject, as the Lebanese
courts have, up to now, dealt with the preferential right from the angle of the
right of pre-emption. This decision came to give the preferential right an
independent qualification from the right of pre-emption, considering it as a
personal right, whereas pre-emption is an option right that has been provided
for exclusively in Article 238 of the Code of Property Ownership.
1.2 Court of Appeal, decision on the masked donation and its provisions
2
A contract was concluded before the notary public between a mother, the
vendor, and her son, the purchaser, aiming at the sale of the ownership without
usufruct, reserving to herself usufruct as long as she lives.
The two contracting parties stated that the price indicated in the contract is
the real one and that the vendor cashed it totally; they also stated that, on the
conclusion of the contract, the mother was 75 years old and in quite a bad
state of health; she had been living at her sons house for two years. Facts
reveal also that, at her death, the mother did not have any significant sum of
money and that the amount indicated in the contract was still in the purchasers
house.
Based on these facts, the Court used its discretionary power providing its
proper qualification of the contract and ruled that, in this case, there is a
gratuitous cession of the mothers inheritance portion in favour of her son.
This cession had been given the form of an onerous sale contract whereas, in
fact, it constitutes a gratuitous cession: the relationship is between an old
mother and her son who offered his services; such cession induced a donation
from the mother to her son.
The Court has given a re-qualification of the contracts nature based on
Article 270 of the Code of Civil Procedure (CCP) which provides that the
qualification of the facts and the determination of the contracts nature do
not fall within the competence of the parties or witnesses but fall within the
competence of the courts. The facts belong to the parties, but it is up to the
judiciary to give the right qualification to legal acts, unless both parties agree
on a specific qualification, which is not established in this case.
Since this contract conceals a donation, it should thus be submitted to the
legal provisions related to the wills free portion, as provided for in Article 59
of the inheritance law for non-Muslims, dated 23 June 1959, in view of
safeguarding the rights of the privileged heirs.
The Court did not base its decision on the sale contract, but on the
presumption of kinship, in order to re-qualify the concluded contract as being
a donation, since the contractual relation binds an ascendant with a
descendent, i.e. a mother with her son. The novelty in this decision is that the
Court has based its decision on a presumption of intention to qualify the
contract of sale as donation.
2 Beirut Court of Appeal, Tenth Chamber: judgment delivered on 2 April 2003.
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2 CIVIL PROCEDURE
2.1 Court of Appeal decision: judicial competence to hear cases not related
to mahr (dower)
3
The appellant (wife) and the respondent (husband) contracted marriage
before the Jaafarite religious court, and agreed that the mahr (dower) to be
offered by the husband would be a residential apartment. The husband
registered the apartment, the object of the case, in the appellants name.
Later on, a dispute arose between them on the apartments ownership,
pushing the wife to resort to the judicial courts. The husband alleged the
incompetence of judicial courts to deal with cases related to mahr issues, these
latter being of the sole competence of the religious courts.
The Court of Appeal ruled that this case comes within its competence, as it
is not related to mahr. In fact, although qualified as a mahr at first, the said
apartment had lost this qualification since its registration in the wifes name
and the lawful devolution of its ownership through registration in the Real
Estates Register, making it acquire the full qualification of real property.
Consequently, since the apartment entered into the wifes assets, disposing of
it amounted to disposing of a real property and not of a mahr.
This decision is important as it distinguished between matters relating to
personal status, which are for the Islamic religious courts jurisdiction, and
matters relating to real property, which are for the judicial courts jurisdiction.
The criterion of this distinction is the registration in the Real Estates Register.
The said registration has a constituent effect resulting in changing the mahr
into a real property which will then be under the judicial courts jurisdiction.
2.2 Court of Appeal decision: claim for restitution of the case file
4
Upon a claim filed before the Court of Appeal, requesting the latter to restitute
an irrevocable judgment it had previously delivered, the Court of Appeal
confirmed in its decision, delivered on 9/6/2003, the principle of judgment
restitution, despite the fact that no legal text provides for it in the Lebanese
legislation. The claimant alleged that the Lebanese Court of Cassation and
the Appeal Board for Expropriation in Southern Mount-Lebanon, had
previously allowed such a recourse for many judgments and that conditions
for restitution were met in the present case.
Having admitted the principle of restitution, the Court of Appeal set a narrow
framework and conditions to allow such a claim, which are:
The unavailability of any other means of recourse as to the judgment for
which restitution is claimed.
The judgment must include a procedural error.
3 Beirut Court of Appeal, Tenth Division: judgment No. 235/2003, delivered on 19 February
2003.
4 Beirut Court of Appeal, Eleventh Division: judgment No. 855/2003, delivered on 9 June 2003.
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The above-mentioned error shall not be an ordinary error that may be
corrected in the way a common error is corrected, as stipulated in the
law.
The procedural error must affect the lawsuit.
The procedural error does not ensue from an act of the party claiming
restitution.
The Court justified its acceptance of the recourse for restitution of the
judgment on the grounds that this ensures equity and puts an end to the
prejudice and injustice resulting from an irrevocable judgment. However, the
Court refused the restitution of the judgment in this case for non-fulfilment
of the required conditions for re-examination.
The Court of Appeal focused on the fact that only a procedural error, and
not a legal error, could justify restitution of the judgment.
2.3 Lebanese Court of Cassation decision: renvoi or restitution
5
In its judgment delivered on 21 January 2003, the Court of Cassation rescinded
the decision of the Court of Appeal hearing arbitration cases, which rejected
a request for the annulment of an arbitral award.
Instead of ruling directly on the case, as per Article 734 of the Code of Civil
Procedure, the Court of Cassation delivered a judgment ordering the renvoi
(remand) of the file to the Court of Appeal, so that it examines the disputes
issue within the mission fixed to the arbitrator.
This judgment gave rise to the doctrines criticisms and set forth, for
discussion, a so far indisputable issue which is the renvoi after cassation.
Some authors wondered whether the documents transfer to the Court of
Appeal, for the latter to look into the merits of the dispute, is considered
from a legal point of view as a renvoi or is it a mere file restitution?
It should be mentioned that the renvoi is not provided for in the Lebanese
legislation, unlike France where the legislation enjoins the Court of Cassation
to proceed, after cassation of a judgment, to its renvoi to a different Court of
Appeal from the one which rendered the dismissed judgment. Things went
differently in the present case where the Court of Cassation, without examining
the merits of the case, restituted the file to the same Court of Appeal which
had rendered the dismissed judgment. It thus declined the claim in rescission
of the arbitral award without examining the said award.
Therefore, the file restitution cannot be qualified as renvoi, in a juristic
sense of the word, which supposes the transfer of the dismissed judgment,
previously settled by a Court of Appeal, to another court of the same degree
to re-examine it.
In the present case, the file having been transmitted to the same court to
which it had previously been submitted, the said court had only declined the
claim in rescission of the arbitral sentence without ruling on its merits.
Therefore, the renvoi conditions are not met and the judgment is a mere file
restitution by the Court of Cassation to the Court of Appeal.
5 Court of Cassation decision, Fifth Division: judgment No. 11/2003, issued on 21 January 2003.
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236
3 ARBITRATION
3.1 Council of State, judgment No. 447/2002-2003 issued on 15/4/2003:
validity of the arbitral clause inserted in the BOT contract
The dispute between the Lebanese State and one of the contracting parties
involved in the execution of a BOT contract was submitted to arbitration by
virtue of the arbitral clause included in the contract. The arbitral tribunal
delivered an award considering that public institutions may resort to arbitration
and that, furthermore, Article 809 of the Code of Criminal Procedure (CCP)
had to be applied in the present case, owing to the connection of the arbitration
case with international trade interests. The claimant requested that, on the
basis of Article 795 of the CCP, the executive formula be given to the arbitral
award by the President of the Council of State, but the latter dismissed the
request.
The President of the Council of State based his decision on the fact that the
BOT contract is an administrative contract, therefore the dispute cannot be
settled by arbitration according to the prevailing administrative doctrine and
jurisprudence
6
and that, moreover, it is irrelevant to apply Article 809 of the
CCP, authorising the State and other legal public entities to resort to
international arbitration in issues concerning international trade interests,
because the application of this Article is restricted to contracts concluded by
the State when submitted to Private Law, which is not presently the case.
Furthermore, it is not possible to invoke Article 762, clause 2, of the CCP,
amended by Law No. 440 dated 29/7/2002, which empowered the State and
public entities to resort to arbitration, whatever the nature of the contract,
since the BOT contract was enforced prior to the date of promulgation of this
Law.
This decision has once again confirmed the jurisprudence position that
prevailed before the promulgation of Law No. 440 dated 29/7/2002,
considering that public entities are not authorised to resort to arbitration for
administrative contracts it concluded, because this would mean a waiver of
their sovereignty. Nevertheless, Law No. 440 authorised public entities to resort
to arbitration for administrative contracts, but only after authorisation by the
Council of Ministers.
6 Refer to judgment No. 2000-2001/639 dated 17/7/2001 delivered by the Council of State in
the dispute opposing the Lebanese State with FTML and LIBANCELL companies.
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237
4.1 The Council of State unanimously delivered an irrevocable judgment in
the recourse filed by the Maronite League against naturalisations, and
entrusted to the Ministry of Interior the task of re-examining the decree
and clearing it from its deficiencies. Judgment delivered on 7/5/2003
7
Nine years after promulgation, in 1994, of the naturalisation decree, the
Council of State remanded it to the Ministry of Interior in order to take action
with regard to the maintenance of nationality of whoever was entitled to it,
and withdrawing it from those who were not entitled. This ensued from a
final and irrevocable judgment delivered by the Council of litigation within
the Council of State, supreme instance in the administrative justice, subsequent
to the recourse that had been filed the same year by the Maronite League.
In the light of the Council of States judgment, it is for the Ministry of
Interior to reconsider each naturalisation file separately, revoke the decrees
that wrongly granted nationality to certain persons, or to persons having
acquired it by fraud or forgery, or decrees considered as seriously violating
the Lebanese Constitution or legislation.
The importance of this judgment lies in the fact that, on the one hand, it
did not invalidate the naturalisation decree and it did not, on the other hand,
dismiss the recourse of the Maronites League; rather, it adopted another way
which is the remanding of the file to the competent authority, i.e. the Ministry
of the Interior, for it to proceed to making the necessary amendments
according to four criteria, which are:
refusing Lebanese nationality to any person who does not fulfill the
required conditions to obtain it, or to the person who wrongly obtained
it;
disqualification of the person who obtained the nationality by fraud or
falsification;
non-violation of the Constitution, with regard to the requisites of
coexistence and avoiding foreigners settlement; and
the excessive violation of the law, such as the granting of nationality to
persons indicted in criminal judgments.
The most important juridical issues decided by this judgment are the following:
Consideration of the decree granting nationality as an administrative act
subject to the control of the Council of State, and not as a governmental
act that is not subject to any kind of control.
Admitting that the collective interest of the Maronite League entitles
the latter the right to contest the decree of naturalisation.
7 Judgment of the Council of State delivered on 7 May 2003.
Lebanon
238
5 COMMERCIAL LAW
Beirut Court of Appeal, third division, Judgment No. 1404/2003 issued on
9/10/2003.
5.1 Effect of publication in the Register of Commerce
The election of a new chairman of the Board of Directors entrusts him with
the capacity to represent the company as of his election, since the publication
in the Register of Commerce, even though mandatory, does not have a
constitutive effect but is meant as merely providing information for third parties
about the content of the publication; thus the powers and capacity of the
chairman of the Board of Directors are not linked to the publication of the
minutes of his election but to the very fact of his election as president.
5.2 Extent of application of the principle of publicity in arbitration issues
Lebanese law, which provides in Article 533 of the CCP for the necessity to
have judgments publicly pronounced, did not require this condition for arbitral
awards. Indeed, the rule of publicity which is a basic principle for legal
proceedings before the courts as it enables citizens, in the name of which
judgments are delivered, to be informed of their content, is not and cannot
be applied in arbitration, which is a special justice where secrecy is very often
required and proceedings carried out away from the public: this is the nature
and essence of an arbitration.
This decision deals with two important issues:
(1) The first one relates to the effect of publication in the Register of
Commerce: it confirms that publication in the said Register has a
declaratory and not a constituent effect. Thus the Register of Commerce
is a mere book in which the traders names are written down, together
with the main information that ought to be known about them to sustain
confidence and commercial trust and make this information available
to third parties. Consequently, the publication of the minutes of election
of the Chairman of the Board of Directors does not grant the latter a
capacity to represent the company, but it results in making this fact
available to third parties.
(2) The second issue relates to the publicity principle which is inapplicable
in an arbitration procedure. This is justified by the fact that arbitration
constitutes a special form of dispute settlement where the parties
themselves choose their own judges to settle their dispute, instead of
submitting it to the courts of their country. Therefore, as arbitration
springs from the parties will, it belongs to them alone to be
acknowledged of the arbitral award, since only they are concerned
thereabout.
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239
6 ENVIRONMENTAL LAW
On 29 July 2002, Law No. 444 was issued on environment protection. It
fixed a general legal framework for the implementation of the national
environment protection policy, and the prevention of all forms of
degeneration, pollution, and nuisance, and their containment, and the
promoting of a continual use of natural resources in order to safeguard a
healthy and stable life sphere, environment wise (Article 1).
The law also determined modes of keeping environmental milieus, i.e. the
coast, earth, maritime environments and soil, away from pollution. It also
determined how to prevent the effects of dangerous and harmful chemicals
and the possibility of fighting sonic nuisances and turmoil.
It also defined, for each Lebanese region, the modes of exploitation of
natural resources and safeguarding of biological species.
It enabled, as well, to take into consideration the provisions of the Code of
Obligations and Contracts, and those of the Penal Code, while tackling the
issue of their infringement, and determined the sanctions that may be imposed
in such cases.
7 PENAL LAW
Law 553: Addition of a new Article to the Penal Code in respect of
terrorism financing
On 20 October 2003, Article 316-bis was added to the Penal Code issued on
1/3/1943, wording as follows:
Whoever proceeds, intentionally and by any direct or indirect means, to finance or
contributes in financing terrorism or terrorist acts or terrorist organisations, shall
be condemned to hard labour for a period of not less than three years and not more
than seven years, and to a fine that shall not be less than the paid amount and shall
not exceed triple this amount.
8 BANKING LAW
8.1 Interim resolution dated 21/11/2003, setting Regulations of the
Centrale des Risques
All leasing companies operating in Lebanon are bound to notify to the Centrale
des Risques the cash facilities they grant to their customers.
8.2 Law No. 547, dated 20/10/2003, amending Law No. 318 dated
20/04/2001.
Article 1 of the Law No. 318, dated 20/04/2001, providing for ways to prevent
money laundering, has been substituted by the following provisions: illicit
Lebanon
240
funds means, under the present law, various kinds of money deriving from
the perpetration of one of the following offences:
(1) The cultivation, manufacture or trade of narcotic drugs.
(2) Acts undertaken by evil groups, as stipulated in Articles 335 and 336
of the Penal Code and internationally recognised as organised crime.
(3) Acts of terrorism, as stipulated in Articles 314, 315, 316 of the Penal
Code.
(4) Financing or taking part in financing terrorism or terrorist acts as defined
in the Lebanese Penal Code.
(5) Illegal trade of weapons.
(6) Crimes of robbery or spoliation of public or private funds with malicious
conduct, or by forgery or breach of trust against banks and operating
financial institutions.
(7) Counterfeit of money, credit and debit cards, Treasury bills or bills of
exchange, including cheques.
8.3 Decision issued by the Governor of Banque du Liban on 17 September
2003 concerning the amendment of the Rules for the supervision of
financial and banking operations
In conformity with the Law No. 318, dated 20/4/2001 (prevention of money
laundering), especially Article 5 thereof, and based on the provisions of the
basic decision 7818, dated 18/5/2001, related to the Rules for the supervision
of financial and banking operations in order to prevent money laundering,
the Governor of the Banque du Liban decided to replace the above-mentioned
Rules.
All banks and financial institutions operating in Lebanon shall have to ensure
the following:
(1) Ascertain the identity and activities of their correspondents and make
sure, when dealing with them for the first time, that they really exist.
(2) Exercise a control over the operations undertaken with their agents, in
order to avoid engaging in money laundering operations.
(3) Ascertain the agents identity and identify the party entitled to the
economic right (the real beneficiary) of the intended operation.
(4) The necessity for specialised administrative bodies to control some
operations with the aim of combating money laundering.
(5) All banks and financial institutions operating in Lebanon shall institute
a special commission made up of the General Manager, the Risks
Manager, the Operations Manager and the Treasury Manager. They
shall also institute a compliance unit which will have to ascertain that
all procedures, laws and regulations in force are being complied with.
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9 BILATERAL AGREEMENTS
9.1 Agreement between the Lebanese Government and the Federation of
Belgium and Luxemburg, aiming at the promotion and protection of
bilateral investments (Law No. 454, issued on 29/08/2002).
9.2 Agreement between the Government of the Lebanese Republic and
the Government of the Hashemite Kingdom of Jordan on the protection
and encouragement of mutual investment (Law No. 511, issued on
16/08/2003).
9.3 Agreement for the encouragement and protection of mutual
investments between the Lebanese Republic and the Kingdom of Holland
(Law No. 508, issued on 16/07/2003).
9.4 Loan Agreement between the Lebanese Republic and the Kuwaiti Fund
for Arab Economic Development to contribute in the financing of
educational Premises in Beirut (Law No. 552, issued on 20/10/2003).
10 ACCESSION TO MULTILATERAL TREATIES
10.1 Euro-Mediterranean Convention
On 12 December 2002, Parliament approved Law No. 474, whereby the
government was allowed to ratify a Euro-Mediterranean Convention that
establishes a partnership between the Lebanese Republic, the European Union
and the member states thereto, signed in Luxemburg on 17/06/2002.
By virtue of this Convention, a partnership between Lebanon and the
European Union is established, aimed at:
Securing a suitable frame for a political dialogue between the two parties
in order to develop relationships, at all levels deemed necessary by the
parties.
Defining the conditions for a progressive liberalisation of the trade of
goods, services and capital.
Boosting trade and widening harmonious economic and social
relationships between the parties, through dialogue and cooperation, in
order to reinforce the development and prosperity process of Lebanon
and its people.
Promoting cooperation in the economic, social, cultural, financial and
monetary fields and in all other fields of common interest.
This convention emphasises that relations between the two parties be governed
by principles of democracy and the protection of fundamental human rights,
as stipulated in the international Declaration of Human Rights.
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242
Libya
Mustafa El-Alem*
1.1 Reorganisation of the Secretariat of the General Peoples Committee
(GPC)
1
Popular administration means, under Libyan law, that all the administrative
units are administered by popular committees to be selected directly by the
Libyan citizens.
The General Peoples Committee (G.P.C.) is the highest administrative unit,
the equivalent to a council of ministers.
The G.P.C. is composed of the secretaries of the general committees
entrusted with the administration of different sectors (such as finance, foreign,
affairs, justice, etc.). Each general peoples committee is equivalent to a
ministry. The secretary of each committee is equivalent to a minister.
According to the resolution of the General Peoples Congress
2
issued on
6 March 2003, the Secretariat of the G.P.C. is to be reorganised as follows:
(1) Secretary of the G.P.C. (equivalent to a Prime Minister).
(2) Assistant Secretary of the G.P.C..
(3) Assistant Secretary for Production Affairs.
(4) Assistant Secretary for the Armed Services.
(5) Secretary of the G.P.C. for Justice and Public Security.
(6) Secretary of the G.P.C. for Foreign Affairs and International Cooperation.
(7) Secretary of the G.P.C. for Planning.
(8) Secretary of the G.P.C. for Finance.
(9) Secretary of the G.P.C. for Economy and Trade.
(10) Secretary of the G.P.C. for Tourism.
* Attorney at Law before the Libyan Supreme Court.
1 Previous reorganisation was surveyed in this Yearbook, Vol.6 (1999/2000) p. 227.
2 The General Peoples Congress is the highest legislative authority.
243
1.2 Administrative contracts
A new Administrative Contracts Regulation (A.C.R. ) came into force on 17
May 2002 repealing the Administrative Contracts Regulation which was issued
in 1994 (see Yearbook, Vol. 2 (1995), p. 185).
This new Regulation adopts the same structure and is in six parts as was the
old Regulation. It also adopts the same articles and provisions with some minor
amendments, in addition to some new provisions which introduced certain
legal innovations concerning foreign contracting parties which are worthy of
note.
The most important innovations are the following:
(1) A foreign party contracting with the Libyan Administration is entitled
to transfer a portion of the contract price to a transferable currency
according to the rate of exchange defined by the Central Bank of Libya
at the date on which the transfer is effected.
(2) The transferable portion shall amount to a percentage of the contract
price. For example, this percentage should not exceed 25 per cent of
the price of building contracts and contracts for the construction of
roads inside the cities. It should not exceed 40 per cent in contracts for
the construction of bridges.
(3) The contracts concluded for the study and performance of special and
strategic projects relating to very major scientific techniques shall be
exempted from the said percentage. Such exemption is to be decided
by a resolution issued by the G.P.C.
(4) The new Regulation imposes on the foreign contracting party certain
obligations such as:
employment of native technical workers not less than 25 per cent of
the total technical manpower, and at least 50 per cent of the non-
technical manpower.
Training a number of native workers not less than 20 per cent of the
total manpower working in the project which is the subject of the
contract.
The use of local products such as building materials, such as sand,
marble, bricks, etc. and materials totally or partially made in Libya
unless such local products or materials are not available.
The use of local means of transportation unless such means are not
available.
Allocation of at least 2 per cent of the contract price for the purposes
of advertising the project subject matter of the contract. This
percentage is to be deducted from the contract price and transferred
to the sector of mass media.
Transfer of all the rights of the technical knowledge know how
concerning the project when the administrative party so requests.
Both parties shall negotiate the arrangements for such transfer.
Investing a portion of the contract price in projects inside Libya. This
investment may be carried out only by the contracting party or in
participation with other investors when the administrative party so
requests. Funds invested accordingly shall be subject to the Foreign
Capital Investment A.C.T.
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244
2 CIVIL PROCEDURE
Act No. 4/1371 came into force on 13 June 2003.
According to the provisions of this Act, Libyans are allowed to institute
lawsuits in Libyan courts against foreign states claiming compensation for
injuries caused by the illegitimate acts of such states whether those acts are
performed by the state itself or by individuals assisted or supported by the
state.
It is no matter whether the said acts occurred inside Libya or abroad, before
or after the coming into force of this Act.
This new competence of the Libyan courts is based on the principle of
reciprocity, i.e. the Libyan courts may adjudicate claims against a foreign state
only when the laws of such state allow the adjudication of claims against the
Libyan state.
The Libyan laws shall be applied to the events subject to this Act, irrespective
of the place where they occurred.
The claims subject to Act No. 4/1371 shall not extinguish by the elapse of
time.
3 FOREIGN CAPITAL INVESTMENT ACT
Act No. 5/1426 on the Encouragement of Foreign Capital Investment came
into force on 29 May 1997. It was surveyed in Vol. 4, 1997-1998, p. 305, of this
Yearbook. Some amendments and additions have been made to this Act by
virtue of Act No. 7 (1371) which came into force on 13 June 2003 which can
be summarised as follows:
(1) Local capital owned by Libyans may participate in the investment with
the foreign capital. The executive regulation of this Act sets out the
bases and rules of such participation.
(2) The investment project shall not be obliged to adopt any of the legal
forms prescribed by the valid Libyan legislation.
(3) The executive regulation sets out the legal forms to be adopted by the
investment projects that may be established under this Act, and the
rules to be followed for such establishment.
(4) The investment projects shall not be subject to registration in the
commercial, industrial, importers and exporters registers. The
executive regulation shall set forth the procedures to be followed for
registration in the investment register prepared for this purpose.
(5) The investment project shall enjoy the independent moral personality
upon registration in the investment register.
4 INSURANCE LAW
Article 6 of Act 28 (1971) pertaining to motor car insurance has been amended
by virtue of Act No. 44 (1369) which came into force on 29 March 2001.
3
3 See Libyan survey in this Yearbook, Vol. 8 (2001-2002 ), p.187.
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245
The said Article 6 has been amended again by virtue of Act No. 8 (1371)
which came into force on 13 June 2003.
Accordingly, the insurer is obliged to pay the sum of insurance to the injured
person in case of bodily injury. In case of death, the compensation must
be paid to the parents, children and spouse of the victim. It should be
distributed among them in proportion to the damage suffered by each one of
them.
The sum of compensation shall cover the material and moral damage,
and should not exceed the maximum limits to be prescribed by resolution of
the G.P.C.
By virtue of Law No.18/1371 which came into force on 13 June 2003, Libya
has ratified the following international convention and protocols prepared
by the United Nations:
Convention on Consent to Marriage, Minimum Age for Marriage and
Registration of Marriages.
Convention on Facilitation of International Maritime Traffic (FAL) 1965.
International Convention on Civil Liability for Oil Pollution Damage
(CLC) 1969.
International Convention on Tonnage Measurement of Ships
(TONNAGE) 1969.
Convention on Cooperation Regarding Patents 1970.
Convention on the International Regulations for Preventing Collisions
at Sea 1972 (COLREGS).
International Convention for the Prevention of Pollution from Ships 1973,
as modified by the Protocol of 1978 relating thereto (MARPOL 73/78).
International Convention on Maritime Search and Rescue (SAR) 1979.
The 1988 Load Lines Protocol concerning the International Convention
on Load Lines 1966.
Optional Protocol on the Elimination of all Forms of Discrimination
against Women 1989.
The International Convention on the Protection of the Rights of All
Migrant Workers and Members of their Families 1990.
The 1992 Protocol Modifying the International Convention on the
Establishment of an International Fund for Compensation for Oil
Pollution Damage (FUND).
Convention on the Prevention of Chemical Weapons 1993.
Protocol for the Protection of the Mediterranean Sea against Pollution
Resulting from Exploration and Exploitation of the Continental Shelf
and the Seabed and its Subsoil (Offshore Protocol).
Amendments to Section 2 to Article 43 of the Convention on the Rights
of the Child.
The Cartagena Protocol on Biosafety 2000.
Optional Protocol on the Sale of Children, Child Prostitution and Child
Pornography 2000.
Libya
246
Protocol against the Illicit Manufacturing of and Trafficking in Firearms,
their Parts and Components and Ammunition 2000.
The United Nations Convention against Transnational Organised Crime
and its Protocols 2000.
Protocol against the Smuggling of Migrants by Land, Sea and Air,
supplementing the United Nations Convention against Transnational
Organised Crime 2000.
Stockholm Convention on Persistent Organic Pollutants (POPS) 2001.
Convention on the Protection of Underwater Cultural Heritage 2001.
Convention on the Prevention of Nuclear Experiments 1996.
Optional Protocol on the Involvement of Children in Armed Conflict
2002.
The Protocol to Prevent, Suppress and Punish the Trafficking in Persons,
especially Women and Children 2002.
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247
Sudan
John Wuol Makec*
Soon after the acquisition of political power in Sudan on 30 June 1989 by the
Salvation Government, extensive legislation in the field of basic laws was
undertaken. Many previous laws were either amended or repealed and new
ones were enacted in conformity with the political objectives of the regime.
This period of extensive legislation continued up to the end of 1998. From
1999 to 2002, legislation largely concentrated on the promulgation of special
or departmental laws. Few amendments of basic laws or laws of general
application were carried out from 2000 to 2003. Important amendments made
during the stated period are the subject of the survey hereunder.
1 CRIMINAL PROCEDURE
(CRIMINAL PROCEDURE ACT 1991)
In the year 2002, amendments were made to sections 19, 39, 108 and 188 of
the Criminal Procedure Act 1991.
1.1. Section 19
Prior to 1991, the system of pre-trial in criminal cases was vested in courts or
with magistrates. This system was inherited from the Code of Criminal
Procedure 1925. But in 1991 pre-trial procedure was removed from the courts
and conferred on prosecution attorneys in the light of the new political
objectives. Prosecution attorneys are government lawyers in the Ministry of
Justice, which was formerly known as the Attorney-General Chambers. These
lawyers conduct the system of prosecution before courts in criminal cases.
Section 19 confers on the prosecution attorney:
(a) The supervisory power
(i) over the progress of criminal cases; and
(ii) their investigation;
* Justice of the Supreme Court, Khartoum, Sudan.
248
(b) Jurisdiction to direct the charge and conduct of prosecution before the
(criminal) court.
When the prosecution attorney exercises the authority conferred on him
by section 19, he has all the powers which regulate the investigation of criminal
cases under the Act (i.e. the Criminal Procedure Act 1991). But there are
excepted powers. In other words, section 19 expressly precludes from the
prosecution attorney power(s) to:
(i) obtain judicial confession from an accused person,
(ii) make the renewal of arrest made against an accused person, and
(iii)issue an order for the general search to be carried out by the police in
specific residential areas.
The amendment (which was made in section 19) preserved the bulk of its
original provision. The essence of this amendment was, however, the omission
of the excepted powers. In effect, the powers to obtain judicial confession,
make renewal of arrest and order a general search were removed from section
19.
It was, in fact, originally unnecessary to mention, under section 19, the
powers which were excluded from those (powers) conferred on the
prosecution attorney. There can never, of course, be a limit to powers which
are excluded from the prosecution attorney. Express mention of excepted
powers is just the same as their omission. Accordingly the mention of excluded
power did not add anything new to the original provision of section 19 and so
the amendment was justified.
1.2. Section 39
Before its amendment, section 39 had only one clause. But after the
amendment, the section has two clauses. The original provision of section 39)
conferred, on the prosecution attorney, the power to carry out the
investigation. Alternatively, it conferred this power for investigation on the
criminal police; but under the supervision of the prosecution attorney
in accordance with the provisions of the Act (i.e. the Criminal Procedure
Act 1991).
In the year 2002, the original provision was retained as clause (1), while the
new provision becomes clause (2). This new clause confers the power on the
prosecution attorney to conduct an investigation or complete it whenever he
deems it necessary, according to the circumstances. When the prosecution
attorney carries out the investigation or completes it, he may exercise the
functions or powers of a criminal police investigator.
1.3. Section 108
Section 108 of the Criminal Procedure Act 1991 contained a single provision
before its amendment in 2002. The amendment added to the section two
new clauses (sections 108 (2) and (3)). The original provision became clause
(1) when the amendment was made.
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Section 108, in fact, constitutes an exception to the provisions of sections
106 and 107 of the same Act, which prohibit the release of persons accused of
the commission of certain serious offences or crimes, for example, the
commission of the offence of gasus
1
unless the release would not result in
some danger or breach of public tranquillity.
Further, section 107 (1) prohibits the release on bail of a person accused of
the commission of a crime or an offence related to public property, or a
dishonoured cheque unless the accused person deposits, in court, an amount,
which is not less than the one for which he or she is charged.
Before the provisions of clauses (2) and (3) are considered, it may be
necessary to set out the original provision of the section, which is now clause
(1) (after the amendment).
(a) Section 108 (1)
Clause (1) provides:
Not with-standing the provisions of sections 106 and 107, a person accused for the
commission of any other crime may be released whenever he has made an undertaking
or provided surety, unless in the opinion of prosecution attorney or judge, on his
own volition or upon a written recommendation made by police in charge, he is
likely to escape or that his release may be detrimental to the course of his
investigation.
The phrase any other criminal act, in section 108 (1) means crime other
than any one of the crimes mentioned in sections 106 and 107 of the Act.
But on the face of section 108 (1), it is doubtful, in the absence of an express
provision or indication, whether it is the prosecution attorney or judge or
police officer in charge who has the power to release the arrested person
after he has given an undertaking or provided surety. However, this doubt
seems to have been indirectly answered in clause (1) and clause (2). This is
explained a little more in paragraph (b) below.
(b) Section 108 (2)
Under clause (2) of section 108, the police in charge of the station may release
an accused person charged with the commission of a crime mentioned in
Schedule 3 attached to this law, but only in the absence of a prosecution
attorney or judge. In such circumstances, the police in charge must, within 24
hours from the time of arrest, submit the case diary to the prosecution attorney
or judge. The prosecution attorney or judge may order a re-arrest of the
accused if he deems it fit.
It is implied under clause (2) that the person to release the accused under
clause (1) is the prosecution attorney or judge. It is further expressly indicated
under clause (2) that the police in charge can only order the release of a
person accused of the commission of a crime under Schedule 3 and only in
the absence of the prosecution attorney or judge. It means that the police in
1 Spying.
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charge have no power to release a person accused of any one of the crimes in
Schedule 3 if the prosecution attorney or judge is present. Further, the
submission of a case diary to the prosecution attorney or judge within 24
hours confirms that the police in charge have no power to release or arrest a
person or continue his or her detention. The police, of course, would not be
required to make a written recommendation against release if they had power.
(c) Section 108 (3)
Clause (3) prohibits the police officer in charge from releasing any arrested
or re-arrested accused person in execution of an order issued by the
prosecution attorney or judge; or an order made by any one of them for the
renewal of his or her (i.e. accused) detention.
It has already been shown in clause (2) that the powers of the police officer
in charge are limited. He or she may release a person accused of any of the
crimes specidfied in Schedule 3 only in the absence of the prosecution attorney
or judge. Even when he or she has made such release he must submit a case
diary to the prosecution attorney or judge within 24 hours from the time of
arrest. His act may be reversed. Hence if the police officer has no power or
has a very restricted power only in specific cases, he or she cannot be expected
to disturb an order issued by prosecution attorney or judge. The wisdom behind
the incorporation of the contents of clause (3) is doubtful since the police
officer receives and executes orders from the prosecution attorney or judge.
1.4. Section 188
The Criminal Procedure Act 1991, at the time of its enactment, conferred on
the Supreme Court or Appeal Court, under section 188, the power of review.
This power entitles the Supreme Court or Appeal Court to act on is own
volition or on written request submitted to it by one of the parties, to call for
judicial proceedings of any criminal case or suit before any criminal court
within its jurisdiction for the purpose of review. The objective of the review is
to enable the Supreme Court or Court of Appeal to ascertain the correctness
of judicial proceedings, or the possibility of attainment of justice by that court
(i.e. the criminal). After the review of judicial proceedings of a criminal case,
the Supreme or Appeal Court may make any necessary order.
The section in effect confers a supervisory role on superior courts to guide
subordinate courts towards the achievement of justice in the early stages of
the suits. Justice must not be achieved only in the final stages of judicial
proceedings or trial by passing a correct decision. The procedure must also
be fair. Justice must not only be done, but must be seen to be done.
Prior to the amendment of section 188 the legislative authority realised
that it is not enough to exercise a supervisory role over the subordinate courts
through the power of review but it is also essential to ensure the attainment of
justice in the Supreme Court, which is the highest judicial authority in the
land. A mechanism for making revisions to the decisions of the Supreme Court
became necessary.
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Clauses (1), (2) and (3) were therefore added to section 188 for this purpose.
The original provision, which confers powers of review, was retained. The
additional clauses provide as follows:
(1) The Chief Justice may nominate a panel of five judges of the Supreme
Court for the purpose of revising its decision when it appears to him
that such decision (of the Supreme Court) violates principles of sharia
law or that it constitutes a mistake in the law or its application. The
panel decision is passed by the majority of its members (judges).
(2) The formation of the panel for revision must consist of a majority of
judges who did not take part in the decision which is subject to the
revision.
(3) Revision must be made within a period of 60 days commencing from
the second day the applicant obtained notice of the judgment, subject
to revision, if he was not present in court when the judgment was
delivered.
The words: Review and Revision, apart from in section 188 of the Criminal
Procedure Act 1981 (amended 2003), also appear in other laws. There is
judicial review in the Constitutional and Administrative Cases Act 1996
(amended 1997). Revision is also embodied in section 215 of Civil
Procedure Act 1983. It may, therefore, be necessary to explain the differences
or similarities in the meanings of review and revision under these laws.
These will be discussed under the following headings:
(1) Distinction between review and revision under section 188 of the
Criminal Procedure Act 1991 (C.P.A.) (amended 2002).
(2) Review under section 188 of the Criminal Procedure Act 1991, and
(judicial) review within the provisions of the Constitutional and
Administrative Cases Act 1996 (amended 1997).
(3) Revision under section 188 of Criminal Procedure Act 1983 and
revision under section 215 of the Civil Procedure Act 1983.
(1) Review and revision under section 188, C.P.A. 1991
The differences between review and revision under section 188 may be
stated as follows:
(a) in exercise of the review power, the Supreme Court or Court of Appeal
calls for judicial proceedings for the mere purpose of examination in
order to ascertain the possibility of achieving justice or the correctness
of the proceedings in the trial by the Criminal Court.
On the other hand, in case of revision it is not the Revision Panel which
calls for case papers or the decision of the Supreme Court to be revised. It
is the Chief Justice who has the initial decision for the revision of the decision
of the Supreme Court when he fears that such a decision may have violated
the principles of sharia law or the law. The purpose of revision is to correct
the violation of the sharia rules or the law.
(b) In case of review, the Supreme Court or Court of Appeal may act in
exercise of its inherent power. Hence in exercise of this power, it may
on its own volition call for judicial proceedings even if no request has
been made by one of the parties.
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But in case of revision, the Revision Panel has no inherent power. The call
for revision comes, as stated above, from the Chief Justice. Unlike the
Supreme or Appeal Courts, the Revision Panel has no permanent existence.
It is an ad hoc body created only for the purpose of revising a particular
decision of the Supreme Court and then it automatically ceases to exist
(after making its decision). Hence, since the Revision Panel comes into
existence when convened by the Chief Justice it has no inherent power to
call for case papers to carry out revisions.
(c) When the Supreme Court of Court of Appeal carries out the review of
judicial proceedings it does not make its decision on the merits of the
suit, but in the case of revision, the Revision Panel must make its decision
on the merits of the suit or the case.
(d) Review is carried out by the Supreme or Appeal Court before the
Criminal Court (below) has passed its final decision on the merits of
the suit. On the other hand, revision cannot be carried out before the
Supreme Court has passed its final decision on the merits of the suit.
The Revision Panel may come into existence only after the Supreme
Court has passed its final judgment.
(e) Review may be carried out at any time before the criminal or lower
court has passed its final judgment. But revision must be exercised within
a fixed period of 60 days, as indicated early.
(2) Review under the Criminal Procedure and Administrative Laws
(a) In case of review under section 188 of the Criminal Procedure Act 1991,
the Supreme Court of Court of Appeal calls for judicial proceeding in
exercise of its inherent power or when a request has been submitted to it
by one party. But the administrative court under the Constitutional And
Administrative Cases Act 1996 (amended 1997) calls for case papers before
administrative authority for (judicial) review only when a written objection
has been submitted to it by an aggrieved party. In other words, the
administrative court has no inherent power to call for case papers.
(b) The Supreme Court of Court of Appeal under section 188 of the Criminal
Procedure Act 1991 calls for case papers or judicial proceedings before a
final decision or judgment has been passed on the merits by the criminal
court concerned. Judicial review under administrative law, however, is
exercised by the administrative court after the highest administrative
authority has passed its final decision on the merits of the dispute.
(c) Review of judicial proceedings before a criminal court does not require
the Supreme Court or Court of Appeal to determine or decide on the
merits of the suit. On the other hand, review or judicial review under the
Constitutional and Administrative Cases Act 1996 (amended 1997),
requires the administrative court to make its decision on the merits of the
case or legal dispute.
(d) The Supreme Court or Court of Appeal under section 188 of the Criminal
Procedure Act 1991 (amended 2002), may exercise review at any time
before the final decision is made on the case by the criminal court. There
is no time limitation for exercise of this power. But (judicial) review is
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exercised by the administrative court within a period of 60 days
commencing from the date of publication of that decision in the Official
Gazette or on the date the applicant (i.e. the aggrieved party) received
the notice of that decision (i.e. whichever case is early).
(3) Revision under the Criminal Procedure and Civil Procedure Laws
It should be noted that the objective and requirements for revision under
both laws (i.e. section 188 of Criminal Procedure Act 1991 (amended 2002))
and section 215 of the Civil Procedure Act 1983, are substantially the same.
The objective and requirements for revision under these sections may be
summed up as follows:
(a) In both laws the objective of revision is to prevent or correct the violation
of principles of sharia law. But one of the differences between the
provisions of the two laws is that section 188 of the Criminal Procedure
Act expressly extends the power of revision to cases in which a mistake
in law or its application has been committed in the decision subject of
revision. On the other hand the provisions of section 215 of the Civil
Procedure Act do not expressly make such extension. However, judicial
decisions made after the incorporation of the power of revision in section
215 extended the revision to cases where a mistake in the law or its
application has been made by the Supreme Court in the decision which
is subject to revision. These judicial decisions held that any violation of
the principles of sharia law equally constitutes a violation of the law
and vice versa.
2
It follows that the power of revision must be extended to
such cases (violation of the law of sharia rules).
The amendment of section 188 of the Criminal Procedure Act 1991,
in the year 2002 (which, in fact, came after the extension of the revision
power in section 215 of the Civil Procedure Act 1991, to cases of violation
of law) had to extend the power of revision in criminal cases to cases of
mistake in the law or mistake in the application of law in the light of the
authority of the stated judicial decision.
(b) In both laws, a revision panel of five judges of the Supreme Court is
convened by the Chief Justice (to correct the violation of sharia rules
or law).
(c) In both sections the decision which is the subject of revision, must have
been passed by a panel of Supreme Court judges.
But there is an apparent difference between the provisions of the
two sections. Unlike section 215 of the Civil Procedure Act 1983, section
188 of the Criminal Procedure Act 1991 does not expressly provide for
the finality of the decisions of the Supreme Court. As a consequence
of this silence, section 188 does not show or state that the revision under
it constitutes an exception to the principle of finality of the decisions
of the Supreme Court.
Despite the silence of s. 188, it is implicit from the constitution of the
courts (i.e. criminal division) that the decisions of the Supreme Court
are final because there is no other appellate court above it.
2 See case of Syrian Club v. Kabab Co. Ltd. (1995-1998) SLJR 60.
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However, the finality of the decisions of the Supreme Court (civil or
criminal divisions) is currently put to the test by the new concept adopted
by the Constitutional Court, which was set up in 1998 under the
Constitutional Court Act 1998. This Court has always assumed
jurisdiction to review (or revise) decisions of the Supreme Court
(whether criminal or civil), a fact that has always been contested by
advocates or criticised by many lawyers and some judges. The concept
is that all laws are part of the state Constitution. Hence any violation of
law by a decision of the Supreme Court violates the Constitution. From
this concept it follows that the decisions of the Supreme Court must be
subject to review by the Constitutional Court. The revision power extends
to cases covered by private law.
(d) Under both laws the time limitation for the exercise of the power of
revision has been prescribed as 60 days (as previously stated).
2 JUDICIARY (JUDICIARY ACT 1986, AMENDED)
Provisions of the Judiciary Act 1986 were revised up to the year 2000. In the
year 2003, section 30 of the Act was amended by adding two clauses to regulate
the appointment of special judges. There are now two categories or types of
judges appointed under the Act and these are:
(a) ordinary judges who are appointed under section 22; and
(b) special judges appointed under section 30. While the ordinary judges
are appointed by the President of the Republic upon the
recommendation submitted to it by the High Judiciary Council, special
judges are appointed by the Chief Justice.
2.1. Appointment of Ordinary Judges
Under the provisions of section 22 of the Judiciary Act 1986, the President of
the Republic appoints the Chief Justice, deputies to the Chief Justice, Judges
of the Supreme Court, judges of the Court of Appeal, judges of the General
Courts (i.e. Provincial judges) and judges of the District Court. He also has
power to remove them from their posts.
There are two types of conditions for the appointment of judges:
(a) General Conditions for appointment in judicial posts
General conditions for appointment of a person in a judicial post are
provided under section 23 of the Judiciary Act 1986. A person must be:
(i) A Sudanese of sound mind.
(ii) At least 25 years of age for the post of District Judge; 30 years of age
for Provincial Judge; 35 years of age for an Appeal Court judge and
40 years of age for a Supreme Court Judge.
(iii) A holder of a (law) degree from a recognised (i.e. by Sudan)
university.
(iv) Of exemplary conduct and of good reputation.
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(b) Other (special) conditions of appointment in judicial posts
Other (or special) conditions of appointment for judicial posts are
prescribed for various courts. These conditions are set out in section 25
for the Supreme Court, section 26 for the Appeal Court, section 27 for
the General (Province) Court, section 28 for the District Court and
section 29 for legal assistants. In other words these sections define other
conditions for appointment of persons to various courts, ranging from
the Supreme Court to the post of legal assistant.
The common requirements in these sections are summed up as
follows:
(i) specific provision of professional class or group of persons from
whom appointment may be made, and
(ii) the fixing of minimum period of legal experience in case of persons
to be appointed outside the Judiciary.
2.1.1. Persons from whom appointment may be made
As stated above, appointments may be made within or outside the judiciary as
follows:
(a) Appointment of persons outside the judiciary:
Appointment may be made from within the judiciary, from the Judges
of the succeeding Court (i.e. the next Court below).
(b) Appointment outside the judiciary:
Appointment of persons outside the judiciary may be made from the
following persons:
(i) Previous judges from the same court for which the appointment is
being made, or previous judges from the succeeding court (or the
next court below);
(ii) Legal counsellors from the Ministry of Justice (i.e. lawyers from
the Attorney-General Chambers);
(iii) Advocates;
(iv) Teachers of law from recognised (by Sudan) universities.
2.1.2. Minimum period of experience
Minimum period of experience in the legal profession is necessary in case of
appointment of persons outside the judiciary. The candidate or person
appointed from outside the judiciary must have at least served in the legal
profession for a period of 18 years. But previous judges of the same court or
of succeeding court are exempted from this condition.
2.2. Appointment of Special Judges (section 30)
As stated earlier the Chief Justice has power under section 30 of the Judiciary
Act 1986 to appoint special judges. Prior to the amendment made in 2003,
section 30 contained two clauses, namely clauses (1) and (2). The provision
of these clauses are considered hereunder:
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CLAUSE (1)
First, clause (1) confers power on the Chief Justice to appoint special judges.
Secondly, the clause provides qualifications of persons who may be appointed
as special judges. These qualifications are:
(i) Experience;
(ii) Capability;
(iii) Confidence of the Chief Justice. This means that the person must enjoy
the confidence of the Chief Justice, and further;
(iv) The person to be appointed must be a Sudanese citizen.
There is no indication in the section that the experience and capability have
been acquired through the legal profession. It follows that the Chief Justice is
free to appoint experienced and capable citizens from outside the legal
profession. He may, for instance, appoint former administrators or retired
police officers. In fact the Chief Justice, has from time to time, appointed
professional administrators or retired police officers under this authority.
The Chief Justice may also appoint by this clause a special judge as first or
second grade and must state specifically the District Court in which he will
carry out his functions.
CLAUSE (2)
Clause (2) provides, in general, that the decree for appointment of special
judges must state the conditions of his employment. But since the clause does
not specifically mention the conditions, the Chief Justice has the discretion to
state what he thinks will be the conditions of employment. In this respect, it is
not clear whether the conditions of employment for special judges will always
be uniform.
It appears that these observations were realised by the proponents of the
amendments, which were made in 2003. This can be noted in clauses (3) and
(4) of section 30. But the relationship between conditions of employment in
clauses (1) and (3) poses a question.
CLAUSE (3)
Clause (3) specifies the conditions or the category of persons from whom the
Chief Justice may appoint special judges. Appointment is made from groups
of legal professionals as referred to in sections 25-29 of this Act. The Chief
Justice must also observe the minimum period of experience as prescribed in
these sections (i.e. sections 25-29). The amendment took note of experience
in the legal profession for a reasonable period.
But the question is: what is the relationship between clause (1) and clause
(3)? Clause (1) in fact had not been repealed. Hence, the next question is
whether the Chief Justice is free to choose to appoint special judges according
to conditions (or qualifications ) in clause (1) or clause (3)?
CLAUSE (4)
Clause (4) provides that:
The contract for appointment of special judges, in accordance with clause
(3), must prescribe the functions to be exercised by the concerned judges.
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The contract must also fix the period and conditions of employment.
Prescription of conditions of employment in the contract is not, of course,
new because it is already provided for in clause (2). The new elements in
clause (4) are:
(i) The fixing of the period of employment; and
(ii) The mention of functions of special judges in the contract of
employment. This indicates that the contract of employment must
expressly provide the functions to be exercised by the special judge.
Clause (1) merely assumes the existence of functions to be carried out by the
special judge.
2.3. Power to create or convene a special court
While the Chief Justice has power, under section 30 of the Judiciary Act 1986
(amendment 2003), to appoint special judges, he also has power, under section
10(e) of the Act, to create or convene a Special Court. He exercises this power
by issuing a warrant of establishment, which he signs. The warrant of
establishment prescribes the formation of the court, fixes its site or centre; its
jurisdiction and procedure. The Chief Justice exercises his power under section
30 to appoint a special judge or judges for the Special Court. Alternatively, he
may transfer the judge or judges already appointed to the ordinary court or
courts under section 22 of the Act to run the Special Court. The Chief Justice
may, on his own volition or on the recommendation of the circuit judge, confer
on a judge or judge of the Special Court, for a fixed period, the powers of a
senior judge (section 21 (2)).
2.4. Justification and the negative aspects of special appointments
At this juncture, two important questions pose themselves for answer. The
first question is whether it was necessary to confer power on the Chief Justice
to appoint special judges (under section 30) or to set up Special Courts (under
section 10(e)).
The second question is whether the special judges or judges of the Special
Courts are expected to be always free from influence, which is likely to affect
their independence.
The following are some of the reasons which justify the conferment of powers
on the Chief Justice to appoint special judges; or to set up Special Courts:
(a) Inadequacy of the number of ordinary judges or courts to administer
justice in the whole country;
(b) The need to use, in the administration of justice, the experience and
capability of former judges, or advocates or distinguished members of
other branches of the legal profession, such as senior legal counsellors
of the Ministry of Justice or teachers of law;
(c) Some cases, by nature, demand the appointment of special judges and
the convening of Special Courts. For example, it may be necessary to
set up temporary Special Courts and appoint special magistrates or
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special judges who have specialisation in particular types of cases. Such
cases may relate to, for instance, customary law (in which many judges
lack experience), bank transactions, telecommunications or customs
duties and so forth. The Chief Justice, in exercise of his powers under
section 10(e) and section 30, has appointed many judges for various
courts and convened many Special Courts for the settlement of cases
concerning Sudatel, customs, banks etc. Apart from the reasons stated
for the vesting of powers on the Chief Justice, some other reasons have
also been advanced by critics in an attempt to answer the second
question. Whilst fear of the negative aspects expressed by the critics
may not be true, nor can it also be stated with certainty that these reasons
are groundless or unreasonable. These negative aspects include the fear
that:
(i) Since the appointment of special judges is carried out on a
temporary basis and subject to renewal at the expiry of the fixed
period, such judges may perform their judicial functions with the
aim of gaining favour from the authority who appointed them so
that they may procure the renewal of their short-term contracts
(of employment);
(ii) The appointment of special judges by one person may bring persons
who are ethically weak and subject to manipulation by authority;
(iii) The ordinary courts of law may be avoided by referring cases of
interests to Special Courts;
(iv) Since the (economic) institutions for which Special Courts are
created for the settlement of their legal disputes (may) provide
vast facilities (which are not proved in ordinary courts) to the
appointed judges, it is likely that such persons may not be able to
non-suit or dismiss cases of their facilitators.
3 ELECTIONS (ELECTIONS ACT 1998)
In 2003, sections 16 and 29 of the Elections Act 1998 were amended.
3.1. Section 16
This section deals with the conditions which a candidate must fulfil so that his
or her nomination may be accepted by the Authority or the General Elections
Authority (provided under section 4).
Prior to its amendment, section 16 provided that:
Nomination for the membership of the National Assembly or the State Assembly or
the Local Council, shall not be complete except by presenting to the Authority the
following:
(a) Admission of commitment to the Constitution.
(b) A certificate of acceptance of the candidates resignation if he is a public
servant, provided that the eligibility of the candidate of the workers does not
lapse;
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(c) Declaration by the candidate that he is independent or belongs to an
Organisation registered according to the Political Association Organisations
Act 1998.
In 2003, the following amendments to section 16 were made, as follows:
(a) Paragraph (b) was repealed;
(b) Paragraph (c) became paragraph (b).
A new paragraph was added to section 16 as follows:
Section16(a): A member of the National or State Assembly or Local Council who
holds a post of public servant may choose whether to submit his resignation (from
his post as a public servant) or treat his assembly or Councils period as leave without
pay.
Some comments may be made here with respect to the amendments
introduced in section 16. In the first place, since paragraph (a) in the original
provision (section 16(a)) was not repealed, the newly added paragraph cannot
again be regarded as section 16(a). In the second place, the contents of the
original paragraph (b) (i.e. section 16(b)) required public servants who wanted
to join politics to submit their resignations from their public posts before
their nominations were accepted by the authority (i.e. the General Elections
Authority). The only employees who were exempted from this requirement
or condition were workers. This condition was previously incorporated into
the law by the General Elections Authority in conformity with the general
principle of separation of the executive power from political power. But it
appears that this amendment was later presented to the National Assembly by
some other authority without consultation with the General Elections
Authority.
3.2. Section 29(1) and (3)
Clause (1)
When the amendments were made in the year 2003, clause (1) of section 29
was repealed and a new provision was put in its place (i.e. as section 29(1)).
The contents of the previous section 29(1) (i.e. before its repeal) fixed
membership of the State Assembly according to the population of each state.
For example, in section 29(1)(a), the number of members or the state
representatives was fixed as 48 if the (State) population did not exceed one
million. In section 29(1)(b) the number of State representatives was fixed as
60 if the State population was more than one million.
The amendment, which replaced the previous provisions of section
29(1)(a-d) states:
The State Assemblies shall be composed of numbers of members (representatives)
fixed according to the (States) populations as follows:
(i) Where the State population does not exceed three million, it shall be
represented by thirty-six (36) members;
(ii) Where the State population exceeds three million, it shall be represented by
forty-eight (48) members.
There is a difference between the previous provisions of section 29(a-d) and
the new or amended provisions. The difference is that under the previous
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260
provisions the number of State representatives varied from 48 to 84 (i.e. when
the States population varied from one million to more than three million).
But after the amendment the number of State representatives is either 36 or
48 according to its population. The amended provisions reduced the numbers
of State representatives in order to reduce expenses.
3.3. Clause 3 (i.e. section 29(3))
Clause (3) of section 29 was also amended in 2003. It is again essential to state
the contents of the previous paragraph (3) in order to understand the
amendments made. Section 29(3) provided that one quarter of the State
Assembly members shall be members coming through special or indirect
election, as follows:
(a) one-third of them female elections in the State (four, five, six or seven
female members according to the number of the Assembly);
(b) one-third of them scientists from the electors of the scientific category
in the state (four, five, six or seven members according to the number
of the Assembly);
(c) one-third of them from professional categories in the State (four, five,
six or seven members, according to the number of State Assembly).
The amendment made in this clause (3) removed or repealed in each
paragraph (i.e. a, b and c) all the words between the brackets. That is, the
words, four, five, six and seven members according to the number of the
State Assembly were removed from each clause. The amendment was realistic
or logical because the mention of these figures (i.e. four, five, six or seven)
was merely superfluous, as it did not add anything new to the provision of
clause (3).
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Kuwait
Fadi B. Nader*
The first half of 2003 was marked by the Iraqi crisis which had a direct and
severe effect on the Kuwaiti economy and halted the legislative reforms long
sought by the Kuwaiti government.
1 PARLIAMENTARY ELECTIONS
In the parliamentary elections held on July 2003, tribal and other supporters
of the ruling al-Sabah family won about half of the 50 seats in the National
Assembly, with Islamists winning a further third, leaving liberal reformers with
only three seats, as compared to the previous eight. As a result, the government
is expected to have a freer hand in passing new laws and in activating previously
enacted legislations.
2 FOREIGN DIRECT INVESTMENT LAW,
PRIVATISATION AND TRADE
The Foreign Direct Investment Law passed in 2000 has been finally
implemented with the issuing of the executive regulations in early 2003. Still
pending are reforms of the tax regime as well as the long-awaited privatisation
law.
Progress on other liberalisation initiatives has also been slow, pending
approval of the new Parliament, most notably Project Kuwait, which allows
international oil companies to participate in the development and operation
of northern oil fields. Foreign firms still may not invest in the upstream
* Regional Attorney, Middle East, Africa & South Asia American Life Insurance Company
(member of American International Group-AIG). Holder of LLM from Queen Mary College,
University of London, London (1986) and LLB from Universit Jsuite Saint Joseph, Beirut
(1985); member of the Beirut Bar Association and the International Bar Association.
262
petroleum sector, although they are permitted to invest in petrochemical joint
ventures.
It should be noted that foreigners are still limited to 49 per cent ownership
of banks, while the insurance sector is open to foreign investments. Acquisition
of real property remains restricted to Kuwaiti and GCC-nationals.
Moreover, foreign-owned firms and foreign-owned portions of joint ventures
are liable to corporate income tax, which applies to domestic and offshore
income. Corporate tax rates can be as high as 55 per cent of gross profits.
Legislation put forward by the government to reduce the maximum rate to
25 per cent is still pending its approval by the new Parliament.
Kuwaiti firms are not subject to the corporate income tax, but local
companies listed on the Kuwait Stock Exchange are required to contribute
2.5 per cent of their national earnings to the Kuwait Foundation for the
Advancement of Science (KFAS). The National Employment Law levies an
additional 2.5 per cent tax that will fund a programme granting Kuwaitis
working in the private sector the same social and family allowances provided
to Kuwaits government workers. Kuwait levies no personal income tax.
On the other hand, the five-year privatisation programme announced by
the Kuwaiti government on July 2001 has only been partially implemented.
The plan outlines a wide range of activities without elaborating on the action
plan or execution mechanism. The Plan calls in its first year for the privatisation
of the countrys gas station outlets and part or all of Kuwait Airways. Year two
initiates privatisation of post office, telegraph, and telecommunications
services. Years three and four were targeted to complete the telecommunica-
tions privatisation and initiate the privatisation of the Ports Authority and
Public Transport Company. The fifth and final year targets the power and
water sectors, as well as Kuwaits Petrochemical Industries Company (PIC).
Both the five-year plan and sector-specific privatisation efforts still await
approval by Kuwaits National Assembly, which has made clear that any
privatisation programme will have to insulate consumers from significant rate
increases and protect the jobs of Kuwaiti employees.
The new executive regulations of the Foreign Direct Investment Law facilitate
the entry of expatriate labour, authorise land grants and duty-free import of
equipment, provide guarantees against expropriation without compensation
and the right to repatriate profits, and protect the confidentiality of proprietary
information in investment applications, with penalties for government officials
who reveal such data to unauthorised persons. New investors will be
grandfathered against any future changes to the law. Full benefit of these
incentives, however, will be linked to the percentage of Kuwaiti labour
employed by the new venture. The foreign investor will also be obliged to
preserve the safety of the environment, uphold public order and morals, and
comply with instructions regarding security and public health.
The Foreign Investment Law stipulates that Kuwaiti courts alone are
responsible for adjudicating any disputes involving a foreign investor and
other parties, although arbitration is permitted. The Kuwaiti judicial system
recognises and enforces foreign judgments only when reciprocal arrangements
are in place. Kuwait is a signatory to both the 1958 New York Convention and
the International Center for the Settlement of Investment Disputes (ICSID,
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263
i.e. the Washington Convention). Kuwait has been a GATT member since
1963 and has signed the WTO agreement. However, Kuwait is not a signatory
to the GATT Government Procurement Code.
Despite the enactment of the new Foreign Investment Law regulations, many
restrictions continue to hinder the influx of foreign capital into Kuwait,
affecting the free investment climate and preventing investors from seeking
opportunities in the Kuwaiti market. Some of these obstacles are incorporated
into the Kuwaiti legislation, making it more difficult for companies to negotiate
a waiver or apply an exception.
Law No. 37 of 1964 (Articles 43 and 44) requires contractors to use locally
manufactured products when available and prescribes a ten per cent price
advantage for local firms in government tenders.
On the other hand, the Counter-Trade Offset Programme in force since
1992 and amended in 2003 imposes an offset obligation on civilian contracts
of KD 10 million (US$33.3 million) and on defence contracts of KD 1 million
(US$3.3 million) or more. The obligation will amount to 35 per cent of
the contract value to be invested in an approved offset business venture. The
programme was initially intended to provide new investment opportunities in
Kuwait; aid the transfer of technology to the private sector; create training
opportunities for Kuwaitis; help market local products outside of the country;
and provide foreign aid. The foreign investor is required to submit a bank
guarantee totaling six per cent of the offset obligation.
Kuwait continues to have a stringent visa regime and most work permits
require a local sponsor; although the Foreign Investment Law is expected to
relax this rule for new investors under the new legislation.
In the banking and financial sector, Kuwaiti law severely restricts the types
of collateral to which creditors may have recourse in the event of default by a
borrower. Banks may not foreclose on residential real estate property or
personal possessions in the event of default, although they may sue the
borrower for the balance due under the loan contract.
3 LABOUR LAW AND FOREIGN WORKERS
Also throughout 2003, the government of Kuwait has continued to adopt
policies intended to limit and discourage the resident expatriate population.
The government has instituted a quota system on work permits and imposed
on private firms, exceeding their allotted quota of expatriates, additional
charges for each work permit issued for any employee hired in excess of the
permitted quota.
The Kuwaiti government has also restricted the transfer of workers from
one sponsor to another within the private sector, and levied new fees on
expatriate workers and their families in order to raise the cost of employing
foreign workers. At the same time, however, the government has reduced the
minimum salary required for expatriates to be eligible to bring their families
to Kuwait.
Under Kuwaiti Law, Kuwaiti workers have the right to organise and bargain
collectively, but they are prevented from forming more than one union for
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264
any one sector or profession and from establishing more than one general
confederation. Foreign workers, who constitute the vast majority of the work
force, are permitted by law to join unions as non-voting members after five
years of continuous residence in Kuwait. The right to strike is also recognised
for private sector workers, though that right is limited by provisions requiring
compulsory negotiation and arbitration in the case of disputes. Kuwaiti labour
law prohibits anti-union discrimination.
Separate Kuwaiti labour laws set work conditions in the public and private
sectors, with the oil industry treated separately. Forced labour is prohibited
and the minimum age for employment is 18 years. Youths as young as 14,
however, may work part-time in some non-industrial positions. A two-tiered
labour market ensures high wages for Kuwaiti employees while foreign workers,
particularly unskilled labourers, receive substantially lower wages. There is no
minimum wage for the private sector; in the public sector, the current effective
minimum wage is KD 226 (US$741) per month for Kuwaiti bachelors and
KD 301 (US$987) per month for married Kuwaitis compared to KD 90
(US$295) for non-Kuwaitis. The basic labour law also limits the working week
to 48 hours, provides for a minimum of 14 days of leave per year, and establishes
a compensation schedule for industrial accidents. Domestic servants are not
protected by the Kuwaiti Labour Law.
Notwithstanding the slow pace of the reforms, certain efforts were made
during 2003 to reactivate the economy and to introduce a few laws allowing
the implementation of desired changes.
4 INTERNATIONAL AGREEMENTS
In April 2003, the Kuwaiti Parliament approved the GCC Customs Union
Agreement and resolved to begin its implementation in Kuwait as of May
2003. The customs union unifies customs duties of the six-member GCC and
promises to promote increased inter-regional trade.
Finally, it should be noted that Kuwait had entered into investment
agreements with the following countries: Austria, Bulgaria, China, Croatia,
Czech Republic, Ethiopia, Finland, France, Germany, Hungary, Italy,
Kazakhstan, Malaysia, Malta, Mongolia, Morocco, Pakistan, Poland, Romania,
Russia, Switzerland, and Tajikistan, Turkey.
In 2003, Kuwait signed a bilateral investment agreement with Pakistan and
a free trade agreement (FTA) with Jordan.
Kuwait has initialled agreements on bilateral investment with Belgium,
Bosnia and Herzegovina, Denmark, India, Latvia, Lebanon, Lithuania, the
Netherlands, Thailand and Ukraine.
Kuwait concluded an agreement with the United States on investment
guaranty programmes, which facilitated the extension of programmes from
the Overseas Private Investment Corporation (OPIC) to Kuwait. Kuwait is also
a member of the Multilateral Investment Guarantee Agency (MIGA). In 2003,
Kuwait signed a Double Taxation Treaty with Canada.
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Saudi Arabia
Fares Al-Hejailan*
1 INTRODUCTION
A number of significant legal developments have recently taken place in Saudi
Arabia. Several long-awaited legislative changes in the fields of capital market
and money laundering have recently materialised. In addition, there have
been new developments in the areas of tax law in the Kingdom.
2 CAPITAL MARKET LAW
The new Capital Market Law (CML) was passed in accordance with Ministerial
Resolution No. 91 dated 16/4/1424AH (corresponding to 16 June 2003). The
date of the publication of the CML in the Official Gazette was 1/7/1424AH
(corresponding to 28 August 2003). This law is seen as a major landmark for
economic liberalisation in the Kingdom, which will create a legal and regulatory
framework for all capital-related activities, such as trading in securities,
increased transparency and accountability as well as attracting foreign
investment. The CML is to take effect 180 days after publication.
The CML comprises of 67 articles dealing, among other things, with the
setting up of the Securities and Exchange Commission,
1
the Securities Deposit
Center,
2
broker regulations,
3
investment funds and collective investment
schemes,
4
rules on market manipulation and insider trading,
5
sanctions and
penalties
6
and the general conditions for the operation of the Saudi Arabian
Securities and Exchange.
7
Additionally, Articles 1 and 2 include definitions of
* LLB; LLM; Attorney of the Law Firm of Salah Al-Hejailan.
1 Articles 4 to 19 of the CML.
4 Article 39 of the CML.
266
important terms and phrases used in the CML such as the Executive Rules
and Securities, which constitute principle terms under the CML.
Under Article 2 the term Securities means:
(a) company negotiable and tradable shares;
(b) negotiable instruments of debt issued by companies;
(c) investment units issued by investment funds;
(d) instruments representing profit participation rights and/or rights in
distribution of assets, or any thereof; or
(e) any other rights or instruments, which the board believes, the public
interest and the protection of investors calls for being treated as
securities. The Board can also exercise its power to exempt from the
definition of a security any rights or instruments (that otherwise would
be a security under (a) to (d) of this Article) if it believes the public
interest and the protection of the investors do not require being treated
as security.
Article 3 has specifically excluded commercial bills, documentary credits,
money transfers, instruments exclusively traded among banks and insurance
policies from the definition of Securities under the CML.
2.1 The Securities and Exchange Commission
The CML envisages the creation of a Saudi Securities and Exchange
Commission (SSEC)
8
to regulate capital markets and license foreign entrants
into the market. Within three months after the passage of the law, i.e. on 26
November 2003, SSEC is to start accepting applications from qualified entities
to permit them to enter the Saudi securities market. We anticipate that SSEC
will, in due course, start licensing such entities to sell securities, as that term
has been defined in the CML, directly in Saudi Arabia.
The SSEC has been provided with a wide range of powers, outlined under
Articles 5 and 6, these include, among other things, the ability to set forth
policies and plans that are necessary in achieving SSEC objectives, to achieve
fairness, efficiency and transparency in transactions as well as the power to
carry out inspections in order to determine whether any person has violated
any provisions of the CML or any of the bylaws to be laid down by SSEC from
time to time. Under Article 7, the SSEC is to be governed by a Board of
Commissioners, comprising of five members who shall all be Saudi nationals
appointed, by Royal Order, for a term of five years, renewable only once.
2.2 The Securities and Exchange Market
The Saudi Securities and Exchange Market (Exchange) will have the status
of a joint stock company and will be the sole entity authorised to operate in
the trading of securities in the Kingdom. Article 20(c) provides that the purpose
of the Exchange includes:
8 The official translation of the title of SSEC is not yet fixed; we therefore use a general term.
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(1) ensuring fair, efficient and transparent listing requirements, trading
rules and technical mechanisms and information for securities listed
on the Exchange;
(2) providing through its Share Deposit Center reliable and rapid settlement
and clearance procedure;
(3) establishing and enforcing professional standards for brokers and their
agents; and
(4) assuring the financial strength of its brokers through establishing and
periodically reviewing compliance with its capital adequacy require-
ments, including such arrangements as it believes appropriate to protect
the funds and securities in the custody of brokers.
The Exchange shall be managed by its own board of directors who, among
other things, shall propose the bylaws, rules and directives necessary for the
operation of the Exchange. This board will consist of nine members appointed
by resolution of the Council of Ministers by nomination of the SSEC Board of
Commissioners. The membership will be as follows:
(1) a member representing the Ministry of Finance;
(2) a member representing the Ministry of Commerce and Industry;
(3) a member representing the Saudi Arabian Monetary Agency (SAMA);
(4) four members representing licensed brokerage companies; and
(5) two members representing joint-stock companies listed on the Exchange.
2.3 Rules governing brokers
Some of the more important rules in the CML are those relating to the
regulations of brokers in the Kingdom, which is of particular interest to
international banks wishing to set up in Saudi Arabia. Previously, the only
means available to international financial institutions wishing to enter into
the Saudi market was to do so in association with a licensed Saudi banking
facility, subject to approval by SAMA. However, the CML under Article 31
clearly states that brokerage business is to be allowed subject to the holding of
a valid licence. A broker is defined as a joint-stock company that works as a
broker, or any agent working for a brokerage company, and carries out part
or all of the following:
(1) acts in a commercial capacity as an intermediary in the trade of securities,
other than persons working on the basis of contractual arrangements
as defined in paragraph (b) of this Article, including a person who
commercially acts as a custodian for securities;
(2) presents in a commercial capacity offers to other for obtaining financial
assets in the form of securities by opening an account by means of which
transactions in securities may be effected;
(3) effects in a commercial capacity securities transactions for his own
account, other than by the way of the issue of securities, in order to
maintain a market in securities or to profit from the difference between
bid and offer prices of securities;
(4) acquires or places in a commercial capacity securities for an issuer or
one in control of an issuer; or
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268
(5) acts as an intermediary other than persons who act on the basis of a
contractual arrangement as defined in paragraph (b) of this Article,
and is involved in a commercial capacity, in arranging currency and
securities swaps.
9
In addition, the CML makes a clear distinction between the roles of brokers
and that of portfolio managers who, on the basis of a contractual arrangement
or otherwise manages either securities owned by a person or investment funds
owned by a natural or legal person which are intended for investment in
securities. This illustrates a particular desire on the part of the Saudi legislature
to regulate so-called existing portfolio managers currently operating in
contravention to existing restrictions enacted by SAMA. One of the most
interesting provisions contained in Article 32 are those outlined under
paragraph (c) which effectively allows SSEC to provide exemptions from the
application of paragraphs (a) and (b) of the same Article, relating to the
prerequisites for brokers and portfolio managers, as it believes consistent with
the safety of the Exchange and the protection of investors. There has been a
great deal of speculation on the application of this provision which if exercised
liberally may effectively open the door to a wide range of potential participants
in the market.
2.3 Dispute resolution under the CML
A welcome addition to the CML has been the inclusion of an independent
quasi-judicial court, namely the Committee for the Resolution of Securities
Disputes (CRSD), to settle suits and complaints arising under the CML,
including any complaints against the decisions of or actions made by SSEC or
the Exchange. The CRSD has been conferred a wide jurisdiction
10
and the
power to issue subpoenas, impose sanctions, issue orders to submit evidence
and documents, as well as the power to indemnify afflicted persons as a result
of the decisions and actions of SSEC or the Exchange.
It is interesting to point out that the CRDS will not consist of sharia-trained
judges but, under Article 25(b), legal counsels qualified in the doctrines of
transactions, the law and securities and exchanges, and conversant in
commercial and financial affairs and securities. Appeals from the decisions
of the CRDS will not be referred to the Saudi courts, as is the case with some
other quasi-judicial committees in the Kingdom, but a separate Appeals Panel
to be formed by the Council of Ministers.
11
2.4 Other provisions
As mentioned above, the CML seeks to regulate a wide range of activities in
relation to the operation of the Saudi Securities and Exchange, such as,
9 Article 32(a) of the CML.
10 See Articles 27 and 35 of the CML.
11 Articles 25(f) and (g) of the CML.
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investment funds and collective investment schemes, rules on market mani-
pulation and insider trading. However, we hesitate to give a more complete
outline of the law beyond this as we are still awaiting the Implementing
Regulations for the CML to be finalised, as well as instructions from SAMA
determining their views on the laws practical applications, and how, if at all,
the CML will alter existing banking control regulations currently observed by
Saudi banks.
3 ANTI-MONEY LAUNDERING LAW
In an effort to combat and fight money laundering activities, the Saudi Council
of Ministers has approved the anti-money laundering law (AML), which was
published in the Official Gazette (the Council of Ministers Resolution No.
167 dated 20/6/1624AH). The enactment of the AML is considered as a
major legal development in the Kingdom in terms of combating money
laundering crimes and other dangerous crimes, such as terrorism and other
international organised crimes. The AML contains 29 Articles, Article 29 of
which states:
These Regulations shall be published in the Official Gazette and shall become effective
three months from the date of publication.
Accordingly, the AML has come into force as of 16/9/1424AH.
3.1 General measures and procedures
This Law establishes a balance by taking into account the good faith principle,
one of the vital principles of the Islamic sharia. It also aims to set the standards
for commercial and financial transactions in the Kingdom through providing
for a number of unprecedented measures and procedures, the most important
of which are as follows:
financial and non-financial institutions may not carry out any financial,
commercial or similar operations under anonymous or fictitious names.
They must verify the identity of the client, on the basis of official
documents, at the start of dealing with such client or upon concluding
commercial transactions therewith in person or in proxy. They must verify
the official documents of juristic person that indicate the name of the
entity, its address, names of its owners, managing directors, and other
data stated in the Implementation Rules;
12
financial and non-financial institutions must maintain, for at least ten
years from the date of concluding the operation of the closing of
the account, all records and documents that explain the financial,
commercial and monetary transaction, whether local or foreign, the files
12 Article 4 of the AML.
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270
of commercial accounts and correspondence and copies of the
identifications;
13
financial and non-financial institutions must have in place an internal
precautionary and supervisory measures to detect and foil any of the
offences stated in these regulations, and comply with all instructions issued
by the concerned supervisory authorities in this area. Therefore, these
institutions must comply with all instructions issued by SAMA;
14
upon gathering sufficient indications and evidence regarding complex
and unusual large and suspicious transactions or operations related to
money laundering, terrorist acts or terrorist organisations, financial and
non-financial institutions must take the following measures:
(a) immediately inform the Financial Intelligence Unit (FIU) (a unit
established by these regulations with the role of combating money
laundering and to be responsible for receiving and analysing reports
and prepare reports on the suspicious operations from all financial
and non-financial institutions) about such transactions or operations;
(b) repair and submit to the FIU a detailed report including all available
data and information on the parties involved therein;
15
and
upon confirming the suspicion, the FIU may order financial and non-
financial institutions and direct the concerned authorities to attach
properties, proceeds and instrumentalities committed in money
laundering for a period not exceeding 20 days. If further extension is
needed, the order must come from the competent court.
16
3.2 Punishments and penalties under the AML
In addition to the above internal and precautionary measures to detect money
laundering activities, the AML also imposes stiff punishments and penalties
on perpetrators of money laundering offences. A perpetrator could be jailed
for up to ten years in addition to a financial fine of up to SR5 million, or to a
punishment or confiscation of the property, proceeds and instrumentalities
connected with the crime.
17
Under Article 17, the punishment could even be
stiffer, as the perpetrator would be subject to a jail penalty of up to less than
15 years and a financial fine of up to less than SR7 million if the offence takes
place under the following circumstances:
(a) if violence or arms are used in the crime;
(b) involvement in a crime committed by an organised gang with which the
perpetrator is affiliated;
(c) if the perpetrator was a public servant and the crime is connected with
such position, or if the perpetrator used his influence and powers in
the crime;
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271
(d) in case women or minors were lured or exploited; and
(e) if the offence was committed through a reform, charitable or educational
institution or through a social service facility and if the perpetrator was
subject to previous local or foreign sanctions, specifically for similar
offences.
Further, the AML also imposes other penalties on the chairmen and members
of the board of directors of financial and non-financial institutions, their
owners, managers, employees, authorised representatives or anyone acting in
such capacity, in case that any of them violates any of the obligations stated in
the AML. Also, financial and non-financial institutions that violate the
provisions of Articles 2 and 3 of the AML may be subject to a fine ranging
from SR100,000 up to the value of property involved in the offence.
18
3.3 Other provisions
As mentioned, the AML also takes into account one of the most important
legal principles of Islamic sharia, namely, the good faith principle. It states
under Article 21:
The proceedings and sanctions provided for herein shall not apply to those acting in
good faith.
Further, under the AML the competent court may relieve the owner, possessor
or user of the property, proceeds and instrumentalities connected with a money
laundering offence if he reports to the authorities, before their knowledge,
about the confiscated property, the proceeds and the identity of the
accomplices without benefiting from the income of such property. By offering
these incentives, the AML encourages individuals to come forward and inform
the concerned authorities about the money laundering offences and the
resources of the illegitimate properties, as such crimes are usually surrounded
with complete secrecy, and it would, therefore, be extremely difficult to discover
by the concerned authorities.
However, observing public freedoms through the guarantee of fair trial
and other basic human rights is perhaps one of the most distinctive features
of the AML, as Article 26 thereof provides:
Public courts shall have jurisdiction over all offenses provided for herein.
Further, Article 27 of the AML provides:
The General Prosecution and Investigation Authority shall investigate and prosecute
crimes provided for in these Regulations before general courts.
Therefore, despite the dangerous economic and security threats associated
with such crimes, no private courts, judicial or administrative commissions
would have jurisdiction under the AML. Also, authorising the General
Prosecution and Investigation Authority to investigate and prosecute money
laundering crimes is completely in line with the provisions of the Code of
18 Articles 18 to 19 of the AML.
Saudi Arabia
272
Criminal Procedures,
19
under which the General Prosecution and Investigation
Authority have jurisdiction to initiate and follow up criminal proceedings
before the competent courts.
It is worth pointing out in conclusion that in order that this law be effectively
enforced, the Implementing Regulations as provided for by Article 28 thereof
must be issued:
The Minister of Interior, in agreement with the Minister of Finance and National
Economy, shall issue the Implementing Rules for these Regulations within ninety
(90) days from the date of its promulgation.
4 TAX LAW
The Ministry of Finance, Department of Zakat and Income Tax has recently
issued the following ministerial resolutions:
20
Ministerial Resolution No. 1729 dated 11/8/1424AH (corresponding to
7 October 2003) which limits tax loss carried forwards; and
Ministerial Resolution No. 1739 dated 11/8/1424AH (7 October 2003),
which requires taxes on certain specified loan and reinsurance premium
transactions.
4.1 Limits to tax loss carried forwards
Pursuant to Ministerial Resolution No. 1729, the amount of allowed losses
carried forward in a taxable year shall not exceed 25 per cent of the recognised
income during that year. The remaining balance will be carried to subsequent
years.
4.2 Taxes on loan and reinsurance premium transactions
The Income Tax Regulations (ITR) imposes income tax on profits of non-
Saudi companies operating inside the Kingdom only or inside and outside
the Kingdom at any one time, and pursuant to Article 3 of the ITR gross
income subject to income tax is to include profits and earnings of whatever
kind, and in whatever form paid, resulting from all kinds of industry and
commerce such as buying and selling, financial or commercial transactions.
Pursuant to Minister of Finance letter no. 4/9976 dated 2/5/1394AH, income
tax was extended to include interests on loans borrowed from abroad.
Traditionally, amounts relating to lending and reinsurance transactions
preformed inside the Kingdom were exempted from income tax, in order to
encourage lending and reinsurance activities, as was required by the economic
19 See Saudi Arabia Country Survey in E. Cotran (ed.) Yearbook of Islamic and Middle Eastern Law,
Vol. 7 (2000-2001).
20 The Minister of Finance is authorised under the Income Tax Regulations issued by Royal
Decree No. 3321 dated 21/1/1370AH and its amendments.
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273
circumstances of the time. However, due to the increasing number of such
transactions, performed from within the Kingdom, the new Ministerial
Resolution No. 1739 intends to subject these amounts to income tax as follows:
(1) Subjecting the income recognised from lending transactions to income
tax in any of the following cases:
(a) if the loan is collateralised with movable and non-movable properties
existing inside the Kingdom;
(b) if the borrower is resident in the Kingdom; or
(c) if the loan relates to operations in the Kingdom.
(2) Subjecting reinsurance premium payments made by any insurance
company operating locally, whether directly or indirectly to any foreign
reinsurance companies, to income tax in any of the following cases:
(a) if the insured item is in the Kingdom;
(b) if the insured person is resident in the Kingdom; or
(c) if the insurance relates to operations in the Kingdom.
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274
United Arab Emirates
Terence Witzmann* and James Abbott

1.1 Federal Customs Authority established
Federal Law No. 1 of 2003 established the Federal Customs Authority under
the supervision of the Minister for Finance and Industry. Its main role will be
to implement the entry of the UAE into the proposed GCC Customs Union,
a single Customs zone for all the countries concerned.
2 SOURCES OF LAW: JUDICIAL AND LEGAL SYSTEM
2.1 Department of Justice established in Dubai
Dubai Law No. 1 of 2003 has established the Department of Justice in Dubai,
replacing the former Department of Courts set up by Law No. 3 of 2000. The
Department will be responsible for the Attorney-Generals office, the Courts
and Judicial Inspection, the Notaries, the Judicial Institute and all other matters
of legal practice in the Emirate.
2.2 Jurists Association produces CD-Rom of Laws
The UAE Jurists Association has produced a CD-Rom which contains Federal
and Local Laws relevant to each Emirate, as well as some Dubai and Federal
Supreme Court of Cassation rulings. It is planned to make this information
publicly available on the internet.
* Head of Middle East Litigation and Dispute Resolution Practice, Clifford Chance, Dubai.
Solicitor, Clifford Chance, Dubai.
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2.3 Legal Education and Training Institute
Ministry of Justice Decision No. 618 of 2002 has amended the Implementing
Regulations of the 1991 Law Regulating the Legal Profession by providing for
the Legal Education and Training Institute (under the auspices of the Ministry
of Justice) to provide legal training for trainee lawyers. The course must be
designed to familiarise the trainees with the rules, practices, ethics and customs
of the legal profession. The course will be a six month one, culminating in an
exam. Trainees who successfully pass the exam must then spend six months
with a law firm. The trainee must be allotted a supervisor whose responsibility
it is to instruct the trainee on the various divisions of the Courts and their
procedures. On completion of this period in a law firm, the trainee will have
qualified as a lawyer.
2.4 Dubai International Arbitration Centre
Dubai Chamber of Commerce and Industry has established the Dubai
International Arbitration Centre to provide arbitration and conciliation
services for regional, local and international businesses. Arbitration will take
place under the Arbitration Rules of Dubai Chamber of Commerce, which
have been in place since 1994.
2.5 New Sharjah Chamber of Commerce Law
Sharjah Law No. 1 of 2003 was passed in April 2003 to reorganise the Sharjah
Chamber of Commerce and Industry (the CoC). The CoC is deemed to be
an independent, non-profit making welfare body-corporate. Its functions and
duties are described in detail and include:
to keep a register of natural and juridical persons licensed to engage in
commercial, industrial, agricultural and professional activities within the
Emirate and to grant membership certificates to them;
to issue and attest Certificates of Origin for products, attest export invoices
and verify signatures;
to specify commercial standards and norms; and
to conduct arbitration and reconciliation. In this regard, the CoC may
implement regulations to establish an arbitration centre.
The Law lays down the structure of the CoC as consisting of a Board of Directors
(19 members appointed by the Ruler of Sharjah), an Executive Office (to
supervise the execution of Board decisions), such Permanent Committees as
the Board shall deem necessary to deal with the legal, commercial and
industrial aspects of the CoCs business, a Businesswomens Council and an
Exhibition Centre.
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3 CIVIL LAW
There have been no significant developments in the relevant period.
4 COMMERCIAL LAW
4.1 Credit Card purchase slips must be signed by the Purchaser
In Judgment No. 687/21 of 2001 the Federal Supreme Court in Abu Dhabi
held that a purchase by credit card will be invalid if made by telephone, without
the signature of the purchaser on the relevant purchase slip, unless the
purchaser has clearly agreed, prior to the purchase, that such transactions
may take place by telephone or telex without his or her signature being
required.
4.2 Time extensions given by Ships Agents are valid
In Judgment No. 265/22 of 2002, the Abu Dhabi Federal Supreme Court
held that an extension of time given by a properly appointed ships agent
on behalf of a shipowner who does not have a domicile at the relevant UAE
port, in favour of a cargo claimant, will be effective to interrupt the one-year
limitation provisions of the UAE Maritime Law, notwithstanding that there
are no provisions in the Maritime Law itself relating to such ships agents. The
Court applied international and local custom and practice in this regard.
4.3 Time charterers Bill of Lading recognised
In Judgment No. 149/22 of 2002, the Abu Dhabi Federal Supreme Court
held that if a time charterer of a vessel, having control over the operation
thereof under the charter, issues a bill of lading to cargo interests in his own
name, then he alone will be liable thereunder, to the exclusion of the vessel
owner, as long, that is, as the cargo interest knows of the existence of the
charterparty between the time charterer and the vessel owner.
4.4 Dubai Internet City Telecommunications Network
Dubai Law No. 6 of 2002 has established Dubai Internet City Telecommunica-
tions Network and has outlined its essential mission to provide telecommuni-
cations services through a fibre optic network and fixed and mobile stations
that will be run, maintained and updated by Dubai Internet City to serve the
interests of companies and individuals in the Emirate of Dubai. Measures to
be taken to implement this role are provided e.g. the laying of the utility
line, fixed and mobile stations etc by the Municipality and the precautions to
be taken to avoid damage or interference therewith.
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4.5 Liability of carriers under Through Bills of Lading
In Dubai Court of Cassation Judgment No. 280 of 2002, the Court affirmed
the important principle of maritime law that a carrier who issues a Through
Bill of Lading is liable in contract to the bill of lading holder for any loss or
damage to the goods, even when the same are in the custody of successive
stage-carriers subject to the excepted perils etc. of the UAE Maritime Law.
The individual stage-carriers may also be liable to the bill of lading holder in
tort but only if negligence, damage and causation can be proved.
4.6 Dubai Technology and Media Free Zone Private Company Regulations
Dubai Law No. 1 of 2002 established the Dubai Technology and Media Free
Zone and on 7 April 2003 Private Companies Regulations were issued
applicable to all companies and branches registered in the Free Zone. In
particular, the Regulations make it clear that the UAE Federal Companies
Law of 1984 shall not apply within the Free Zone to the extent that it conflicts
with any provisions of the Regulations. Companies are encouraged to draft
their own bylaws, provided they comply with the Regulations. Both the
companys Memorandum and Articles of Association must be in English and
the various provisions which they must contain are specified. The Regulations
also deal with the establishment of a Registrar of entities in the Zone, with
the ways that such entities can be registered, their nature and status,
share capital and transfer, dividends, management, amalgamation and
investigation, overseas companies, winding up, the powers of the Free Zone
Authority etc.
The Zone is also working on a Dispute Resolution System covering domestic
and international disputes within the Zone. In due course this will be enshrined
in a Dubai Law.
Dubai has also announced the establishment of the International Media
Production Zone which is intended initially for the printing and publishing
sector and, in due course, for the music, film and broadcast sectors. Work is
due to start in October 2003.
4.7 Assignment of bill of lading requires notification to carrier not its
consent
In Dubai Court of Cassation Judgment No. 488 of 2002, the Court held that
although a notify party under a bill of lading has no right to sue as such, the
named consignee in the bill (a bank in this case) may assign to the notify
party its right of action and the delivery of cargo to the notify party together
with a notification from the notify party to the carrier to attend a joint survey
was sufficient notice to the carrier of the assignment. The notify partys losses
were met by its insurers, which in fact brought the action against the carrier.
The Court further held that the carrier had received sufficient notice of this
subrogation by virtue of its receipt of the insurers Statement of Claim.
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4.8 Dubai International Financial Centre approved by Federal Cabinet
In July 2003, the Federal Cabinet approved a law to allow Financial Free Zones
to be established in the UAE on terms that will allow them to pass their own
civil and commercial laws, separate from those of the UAE. Effectively, this
gives Federal backing to the establishment of the Dubai International Financial
Centre. This decision of the Cabinet must be ratified by the Federal Supreme
Council. Implementing Regulations must also be enacted before operating
licences to financial institutions to establish within the Centre can be issued.
4.9 Jebel Ali Free Zone Rules for offshore companies
The Jebel Ali Free Zone has issued new rules allowing the registration in the
Zone of offshore companies. Such companies must have an office in the Zone
(or via an agent approved by the Zone), at least two directors, one class of
shares, hold at least one meeting a year and submit yearly audited accounts to
the Zone registrar. Licences will permit trade and associated activities but not
banking or insurance.
4.10 Draft Law to ease curbs on foreign investment
In March 2003, the President of the Abu Dhabi Chamber of Commerce
announced that a new Federal Law was being considered to ease curbs on
foreign direct investment, as part of the UAEs efforts to acquire technology
and diversify its oil-reliant economy. The new Law is being prepared by the
Ministry of Economy and Commerce and will in due course be presented to
the Federal Cabinet for approval.
4.11 ISPS Code implemented
In August 2003, the Federal Ministry of Communications issued a decree
implementing in the UAE the International Ship and Port Facility Security
Code (the ISPS Code). The ISPS Code has been developed and adopted by
The International Maritime Organisation to enhance port and ship security
worldwide, with a view particularly to the threat of terrorist attacks. The ISPS
Code is due to come into force worldwide on 1 July 2004. In the UAE all
vessels over 500 grt must register with four designated Classification Societies
which will then issue certificates of compliance. Without such certificates, entry
to UAE ports may be forbidden. Registration of smaller vessels is voluntary.
The ISPS Code also deals with the safety of port facilities and the Dubai Ports
Authority has announced that it will be regularly updating and upgrading its
security in accordance with the Code to ensure maximum protection to the
business environment within DPA facilities.
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5 EMPLOYMENT AND LABOUR LAW
5.1 Draft Ministerial Decree on group labour disputes
The Ministry of Labour is reportedly finalising a decree regulating the
procedure for disputes between an employer and a group of workers. It is
thought that the decree is prompted by the growing number of such disputes
in the construction, contracting and maintenance sectors. Under the new
procedure, the employer must report the dispute immediately to the Ministry
and will have ten days to seek to resolve it with the employees. If not thereby
resolved, the dispute will be referred to a Ministry Conciliation Committee,
whose decision will be binding for a period of two years, after which period
only can an action in the Labour Court be filed. The decree makes it plain
that labour strikes and protest marches are still forbidden.
6 SOCIAL SECURITY LAW
7 PROPERTY LAW
7.1 New Sharjah Construction Code
The Sharjah Consultative Council has approved a new Building and
Construction Code which entered into force on 1 January 2003. The new
Code lays down standards and specifications to be met by all new buildings in
the Emirate, including water, gas and electricity.
7.2 New Dubai Rent Law
On 24 February 2003, Dubai Law No. 2 of 2003 was issued in relation to the
Profession of Renting and Leasing Real Estate. This provides in essence that
no person shall practise the business of renting and leasing property without
a licence from the Dubai Economic Department. The procedures and
qualifications required for the issuance of such a licence are specified
including a UAE Dhs. 5 million bank guarantee.
7.3 New Dubai construction rules
Dubai Municipality has published safety rules for construction sites, applicable
to both the public and private sectors and to Free Zones in the Emirate. These
280
include a mandatory check-list for safety requirements. The rules also require
construction companies to consider the safety of the public outside the site,
such as establishing walkways and temporary roofing. Penalties for breach of
the rules are prescribed with fines from UAE Dhs. 100 to UAE Dhs. 5,000
and possible non-renewal of the offending companys trade licence.
8 INTELLECTUAL PROPERTY LAW
8.1 New Copyright Law
On 14 July 2002, the new Copyright Law (Law No. 7 of 2002) came into force,
repealing the Copyright Law of 1992 (Law No. 40 of 1992).
The new Law recognises that an author has a perpetual and inalienable
moral right to publish a work for the first time and a right to license his work,
reproduce, rent or assign all or part of the same to third parties. Works to be
protected include literary works, computer software, databases, speeches, plays,
musical works, audio-visual works, architectural works, drawings, paintings and
sculpture, photographs, applied art, charts/maps/plans and derivative works.
Works which cannot be protected include official documents, news items,
public domain works, the making of a single copy for non-commercial
purposes, works used in legal proceedings and quotation of extracts (with
proper attribution).
The normal period for protection is the life of the author plus 50 years.
Applied art is protected for 25 years and broadcasted items 20 years.
The Ministry of Information and Culture is to maintain a Copyright Register
but failure to register thereat will not prejudice the protection given by the
Law.
Penalties for infringing the Law include the granting of a provisional
attachment of the offending item (and its eventual destruction) and a ban on
its further publication plus fines and/or prison sentences depending on the
seriousness of the offence. The Customs Authority may seize offending works
on its own initiative or at the request of the copyright holder.
Works of foreign authors are protected in the UAE subject to reciprocal
treatment by the foreign State or any international Conventions binding on
the UAE.
8.2 New Trademark Law
Law No. 8 of 2002 has amended various Articles of the Trademark Law of
1992 (Law No. 37 of 1992). The major changes are as follows:
Article 3 national or foreign decorations, coins and paper currency
and translations of well-known or previously registered marks cannot be
the subject of registration.
Article 4 trademarks that are well known outside their home jurisdiction
can be registered only by the owner or with his or her permission.
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Article 8 the UAE is to follow the International Classification System:
one trademark may be registered in a number of classes but each class
must be filed for separately.
Article 10 the Ministry of Economy and Commerce is to ensure that, at
the time of any new application, no identical or similar trademarks are
already registered. If so, all applications will be suspended pending
settlement.
Article 11 the Ministry may impose conditions and modifications upon
applications to avoid confusion with existing registered marks. The
applicant must be notified and a decision as to registration made in 30
days.
Article 12 the Trademark Committee will be quorate if attended by a
majority and must meet at least once a month.
Article 14 oppositions to a trademark application may now be by e-mail
as well as by the means specified on the 1992 Law.
Article 16 the information to be provided in a registration certificate
must include details of any priority claimed under the Paris Convention
for the Protection of Industrial Property.
Article 17 a registered trademark owner can prevent other parties from
using any identical or similar mark on similar, identical or related products
or services such as to cause confusion among consumers.
Article 18 a trademark owner may add to or amend the products or
services covered by the trademark and the Ministry will decide on the
same and publish the amendment in the Trademark Bulletin and two
daily Arabic newspapers.
Article 19 duration of protection is ten years and is renewable for further
ten-year periods indefinitely. There is a three-month grace period for
renewal after expiry. Renewals need to be published as in Article 18.
Article 21 an interested party may seek to cancel an unlawful trademark
but the Ministry will only do so on final judgment.
Article 22 the fact that a trademark has not been utilised for five years
will not allow an interested party to seek to cancel the same if there has
been external interference with such use, such as import restrictions or
other government conditions.
Article 23 the Ministry may modify a registration on its own initiative.
Article 32 sub-licences of trademark rights are not allowed, unless
approved by the terms of the licence: compulsory licences of trademarks
are prohibited in all cases.
Articles 37 and 38 similar trademarks may be considered as infringing
trademarks: penalties may be applicable to those who lead consumers to
believe that their trademark protection covers products other than those
actually registered.
Article 43 the Court can order destruction of attached products,
equipment and machinery used in the infringement, even if the accused
is acquitted.
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8.3 New Patent Law
The Law Regulating and Protecting Industrial Property for Patents, Designs
and Industrial Models (Law No. 17 of 2002) came into force on 30 November
2002 and repealed the Patent Law of 1992 (Law No. 44 of 1992). A major
purpose of the new Law is to bring UAE law into line with The Agreement on
Trade Related Aspects of Intellectual Property Rights (TRIPS).
The new Law is designed to protect patents, utility certificates, know-how,
industrial designs and industrial models.
A patent will be granted to any new invention deriving from a novel concept
or improvement of a previous patent, as long as the concept or improvement
is based on scientific principles and capable of industrial exploitation.
Utility certificates will be granted for new inventions capable of industrial
exploitation but not sufficiently novel to justify a patent.
Know-how will be protected if it is not in the public domain and the owner
has taken appropriate measures to protect its secrecy.
Industrial designs or models will be protected if they are novel, can be used
in industry or craft and are not contrary to UAE public policy or morals. They
must also be registered with the Ministry of Finance and Industry.
The owner of a patent will be the inventor, or his successors, or his employer
if the invention arose from such employment (unless inventive activity is
excluded therefrom and the employer shows no interest in the invention within
four months of notification thereof by the employee) or the owner of a previous
invention if the new invention infringes its essential elements.
The patent owners rights are essentially to prevent third parties from
making, using, offering for sale, selling, or importing for any of these purposes,
the product or process without the owners consent. Know-how is protected
against unlawful use, disclosure or publication by third parties. Industrial design
and model owners may prevent third parties from using the same in
manufacturing any product or importing any product relating to the same or
possessing the same for use, sale or offering for sale.
Items which cannot be given patent or utility certificate protection include:
research and biological processes for the production of plants or animals;
diagnostic etc. methods for the treatment of humans or animals; scientific
and mathematical theories/methods, scripts, rules or methods for business
or games, inventions contrary to public order or morals.
Medicines and pharmaceuticals are expressly afforded patent protection
by the Law but the effect of protection is delayed until 1 January 2005, by
virtue of the exemption allowed by the transitional provisions of TRIPS.
A patent is protected for 20 years from its filing date, a utility certificate and
industrial models and designs for ten years therefrom and know-how for as
long as it is not published or in the public domain.
With regard to penalties for infringement of the new Law, an offending
invention, design etc. may be seized by the Court, subject to the complainant
establishing a guarantee and filing the main action within eight days. On final
judgment, the Court may impose fines and/or imprisonment and destruction
of the offending material.
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8.4 UAE removed from U.S. Piracy Watchlist
In recognition of its efforts to combat IP piracy and implement IP rights, the
UAE has been removed from the U.S. Special 301 Watchlist. The Business
Software Alliance has claimed that software piracy rates in the UAE have halved
from 86 per cent in 1994 to about 40 per cent at present.
9 FAMILY LAW AND SUCCESSION
(ENFORCEMENT OF JUDGMENTS)
10.1 Effect of criminal on civil judgments
In Dubai Court of Cassation Judgment No. 276 of 2002, the Court held that a
final criminal judgment will be binding on the Civil Court if an accused was
found not guilty on grounds that the relevant act did not take place or that
there was insufficient evidence that it did. If, on the other hand, the acquittal
was on the grounds that the act took place but was not criminally punishable,
or that other required elements of criminal liability were not present, then
the criminal judgment will have no effect on a civil case which has to consider
the civil liability for the act in question.
11 CRIMINAL LAW AND PROCEDURE
11.1 National Anti-Fraud Committee
Ministry of Economy and Commerce Decision No. 71 of 2001 established a
National Anti-Fraud Committee to administer the 1979 Prevention of Fraud
and Deceit Law and its 1984 Implementing Regulations. Ministerial Decision
No. 145 of 2002 made further amendments to Decision No. 71, providing for
representation on the Committee and further defining the exact role of the
Committee. The Committees central role is to study the problem of commer-
cial fraud and counterfeit trademarks but it is charged also with considering
the issue of import bans on non-compliant goods and complaints relating to
foodstuffs, drugs, farm produce, expired or counterfeit goods.
11.2 Police may not be sued criminally, only civilly
The Dubai Court of Cassation has held, in Judgment No. 265 of 2001, that the
Dubai Police acting in good faith cannot be prosecuted criminally for any
284
breach or excess of their authority but they can be sued for civil damages by
any party that has suffered loss as a result of such breach or excess.
11.3 Penal Code Amendments drafted
In July 2003, the Federal National Council approved various amendments to
the Penal Code (Federal Law No. 35 of 1992). It seems that a total of 51
Articles will be amended. These apparently include the Articles dealing with
the circumstances in which a criminal case will be brought to an end e.g. by
lapse of time or pardon of the accused by the victim etc.
13 PRIVATE INTERNATIONAL LAW
14 ENVIRONMENTAL LAW
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Bahrain
Husain M. Al Baharna*
During the period between June 2002 and November 2003, Bahrain has issued
a number of substantive laws which may be classified under the following
headings:
(1) Laws by Decrees 2002;
(2) Decrees 2002;
(3) Laws 2003;
(4) Decrees 2003.
A full list with long titles is at Annexes I, II and III. Some titles deserve special
mention.
1 TRADE UNION LAW
1.1 Law by Decree No. 33 for 2002 Concerning Trade Union Law
This Law is the first law relating to trade unions in the history of Bahrain. It
repeals Chapter 17 of Labour Law No. 23 for 1976 Concerning the
Organisation of the Labour Force through their Committees and joint Labour
Councils as provided for under this Chapter. Article 3 of the Law by Decree
provides that the present Labour Organisations provided for under Chapter
17 of the 1976 Labour Law shall continue to perform their activities until the
complete formulation of the new Trade Unions Organisations provided for
under Law by Decree No. 33 for 2002.
As regards the Trade Unions Law, it contains 21 Articles spread over five
chapters as follows:
Chapter 1 deals with General Principles.
Chapter 2 deals with the Trade Union Body and its objects. This chapter
is divided into two sections as follows:
* PhD in International Law (University of Cambridge); Barrister-at-Law of Lincolns Inn, London;
Council Member of the International Council for Commercial Arbitration (ICCA); Member
of the U.N. International Commission (ILC); Attorney before the Court of Cassation, Bahrain;
Legal Consultant and Arbitrator, Former Minister for Legal Affairs, Bahrain.
286
The first section deals with the General Union of the Bahrain Trade
Unions (Article 8).
The second section deals with the formation of a single Trade Union
for each Establishment within both the private and public sectors
(Articles 10-11). The organisation of each trade union, under this
section, consists of (a) the General Assembly, (b) the Board of Directors
and (c) with Working Committees formed under each trade union
registered (Article 12).
Chapter 3 deals with the financial resources of the Trade Union
Organisations and customs tariff exemptions applicable to them.
Chapter 4 deals with the dissolution of Trade Union Organisations.
Chapter 5 deals with miscellaneous provisions.
According to Article 2 of the Law, it is applicable to:
(a) workers who are subject to the provisions of the Labour Law in the
private sector;
(b) workers who are subject to the provisions of the Maritime Law; and
(c) workers/employers who are subject to the Civil Service Regulations (the
Government sector).
Some of the main provisions of the Law may be summarised as follows:
(1) The freedom of joining Trade Union Organisations, and the freedom
of withdrawal therefrom, are guaranteed (Article 3).
(2) Trade Union Organisations provided under this Law shall enjoy their
own independent juridical personality from the date of the deposit of
their formation documents with the Ministry concerned (Article 4).
(3) The Trade Union Body consists of the Trade Union and the General
Union of the Bahrain Trade Unions (Article 6).
(4) The purposes and objectives of the Trade Union Organisations are to
protect the legitimate rights of their members, defining their interests
and the excellence of the circumstances and conditions of their workers
(Article 7).
(5) The General Union of Trade Unions is generally responsible for the
Bahrain Trade Union Work. It is specifically responsible, inter alia, for
drawing up the general policy which governs the work of the Bahrain
Trade Union (Article 8).
(6) Strike is a legitimate means of defending labour rights and interests
within certain safeguards and conditions to be complied with which
include, inter alia, the following:
(a) Approval by secret ballots of the strike by a two-thirds majority of
the members of the General Assembly.
(b) The object of the strike should be concerned with the achievement
of economic and social benefits of the workers concerned.
(c) The strike should be peaceful and orderly: it should not cause harm
or change to the properties and assets of the State and individuals
and the security and safety thereof.
(d) Strikes are forbidden in specific public utilities such as security/
civil defence, airports, hospitals, communications and electricity and
water posts (Article 21).
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The Law authorises the Minister of Labour and Social Affairs to issue the
Resolutions required for the implementation of this Law.
This Law by Decree No. 33 for 2002 was passed on 24 September 2002
(Official Gazette No. 2549, dated 25 September 2002).
2 LABOUR LAW
2.1 Law by Decree No. 43 for 2002 Amending Certain Provisions of Labour
Law by Decree No. 23 for 1976
Law by Decree No. 43 for 2002 has merely amended the first paragraph of
Article 81 of the 1976 Law by adding to the list of public holidays for workers
in the private sector, an additional day, namely, 17 December of each year was
declared as a public holiday for the workers in addition to 16 December of
each year, as a result of which both the 16
th
and 17
th
of December of each year
have been declared as public holidays on the occasion of National Day and
the Accession to the Throne.
This Law by Decree No. 43 for 2002 was passed on 20 October 2002 (Official
Gazette No. 2553, dated 23 October 2002).
3 MEDIA AND PRESS LAW
3.1 Law by Decree No. 47 for 2002 Concerning the Regulation of Media,
Press, and Publication
This Law by Decree repeals Law by Decree No. 14 for 1979 concerning Media,
Press and Publication. It contains 96 Articles spread over four main chapters
as follows:
Chapter 1 concerns Definitions and General Principles.
Chapter 2 concerns Media and Press.
Chapter 3 concerns Publication.
Chapter 4 concerns General Provisions.
The Law generally guarantees freedom of expression and freedom of
publication within certain safeguards and conditions related to the observance
of security, law and order, as provided in the laws and regulations of the country.
This Law has been very much criticised by the public for inflicting criminal
responsibility on chief editors, editors and column writers of newspapers and
authors and imposing imprisonment and fines for the publication of
objectionable material and news that are covered under sub-chapter 6 of
chapter 3 of the Law.
Bahrain
288
4 COMMERCIAL AGENCIES
4.1 Law by Decree No. 49 for 2002 Amending Certain Provisions of Law
No. 10 for 1992 Concerning the Law of Commercial Agencies
According to this amending Law, Article 7 of Law by Decree No. 10 for 1992,
is repealed. This Article provides for the entitlement of the Agent to the
commission of 5 per cent of the price of the goods (covered by the terms of
the Agency Agreement) and spare parts thereof, imported by a third party
directly from the principal himself (i.e. without the mediation of the Agent).
This Law No. 49 for 2002 was passed on 23 October 2002 (Official Gazette
No. 2553, dated 23 October 2002).
5 HOUSE OF REPRESENTATIVES
AND CONSULTATIVE (SHURA) COUNCIL
5.1 Law by Decree No. 54 for 2002 on the Internal Regulations of the
House of Representatives and Law by Decree No. 55 for 2002 on the
Internal Regulations of the Consultative (Shura) Council
Since the Internal Regulations of both chambers of parliament are, more or
less, similar, the two Laws by Decrees No. 54 and No. 55 concerning these
regulations have been dealt with together in this report. It suffices, therefore,
for the purpose of this report, to deal with the Internal Regulations of the
House of Representatives. These Internal Regulations contain 220 Articles
spread over 8 chapters as follows:
Chapter 1 contains the General Provisions.
Chapter 2 concerns the Organs of the House of Representatives which
comprise the Chairman, the Bureau and the Committees of the House.
Chapter 3 concerns the Meetings and Decisions of the House.
Chapter 4 concerns the Works of the House which deal with amendments
to the Constitution, legislation, laws by decrees, budgetary and financial
matters and approval and/or ratification of treaties and international
agreements.
Chapter 5 concerns the Rights and Obligations of Members of the House.
It deals with parliamentary immunity of members, their attendance and
non-attendance of meetings of the House, their obligations, and cases
giving rise to their civil and criminal responsibility.
Chapter 6 concerns the End of Membership. It deals with cases of
termination of membership of members in accordance with Article 99
of the Constitution and their voluntary resignation from the House.
Chapter 7 concerns the Parliamentary Affairs of the House. It deals with
the duties of the Chairman of the House to conduct the meetings of the
house in an orderly manner and the observance of law and order in the
House during the performance of its work. This chapter also deals with
the House budget and the General-Secretariat of the House.
Chapter 8 concerns Miscellaneous Provisions.
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The two Laws by Decrees No. 54 and No. 55 for 2002 were passed on 23 October
2002 (Official Gazette No. 2554, dated 30 October 2002).
6 ELECTORAL CONSTITUENCIES
6.1 Decree No. 36 for 2002 Concerning Amendments to Certain Provisions
of Decree No. 29 for 2002 on Defining and Fixing of Areas and Electoral
Constituencies and the branches of Committees Designated for the General
Election of the House of Representatives
This Decree amends the last paragraph of Article 2 of Decree No. 29 for 2002
in respect of electoral constituencies, their boundaries and the branches of
the general election committees. The amendment provides for the
establishment of additional branches of general election committees within
the boundary of any electoral constituency in order to allow registered voters
within any electoral constituency to give their votes before any of these branches
of general election committees for any candidate listed among those candidates
who belong to the respective electoral constituency of the voter. It is understood
that public resentment was voiced, on a large scale, to this amendment to
Decree No. 29 for 2002 on the ground that it created confusion and
irregularities in the process of voting by eligible voters outside the boundaries
of their own electoral constituencies.
The amendment provided in Decree No. 36 for 2002 in respect of what
amount to shifting the boundaries of the electoral constituencies drew
vehement criticism from the main four opposition political societies
(representing 50 per cent of the population) which considered such an
amendment which affects the boundaries of the electoral constituencies as
irregular since it amounts to encouraging double voting for certain non-
popular candidates. Moreover, it is relevant to point out that the main four
political societies boycotted the 2002 elections on the basis of their objection
to the non-popular 2002 Constitution. A critical review of the 2002 Constitution
of the Kingdom of Bahrain is contained in our last years report (see Yearbook,
Vol. 8 (2001-2002), p. 221).
This Decree No. 36 for 2002 was passed on 8 October 2002 (Official Gazette
Bahrain
290
ANNEX I
LAWS BY DECREES ISSUED AND PASSED IN 2002
(1) Law by Decree No. 31 for 2002 Approving Loan Agreement between the
Bahrain Government and the Arab Fund for Economic and Social
Development for Providing Assistance in the Expansion and Generation
of Electric Power
This Loan Agreement, dated 25 June 2002, for the amount of 25 million
Kuwaiti Dinars, was approved by Decree No. 31 on 21 September 2002
(Official Gazette No. 2549, 25 September 2002).
(2) Law by Decree No. 32 for 2002 Concerning the Law Organising the Bahrain
Defence Force (B.D.F.)
This Law repeals all previous laws concerning the Bahrain Defence Law
of 1989, Higher Defence Council of 1973, B.D.F Officers Service of 1977
and BDF Individuals Service of 1979.
This Law by Decree No. 32 for 2002 was passed on 24 September 2002
(Official Gazette No. 2549, dated 25 September 2002).
(3) Law by Decree No. 34 for 2002 Concerning the Military Penal Code
This Law repeals the previous Military Law of 1968. It was passed by Law
by Decree No. 34 for 2002, dated 25 September 2002 (Official Gazette No.
2549, dated 25 September, 2002).
(4) Law by Decree No. 36 for 2002 Concerning the Law of Tenders and
Government Purchases
This Law, the first of its like in Bahrain, was passed by Law by Decree No.
36 for 2002 on 9 October 2002 (Official Gazette No. 2551, dated 9 October
2002).
(5) Law by Decree No. 37 for 2002 Concerning Amendments to Certain
Provisions of Law by Decree No. 3 for 1982 on the Public Security Forces
Regulations
(6) Law by Decree No. 38 for 2002, Concerning Amendments to Certain
Provisions of Law by Decree No. 20 for 2000 on the National Guards
Regulations
This Amending Law by Decree No. 38 for 2002 was passed on 9 October
2002 (Official Gazette No. 2551, dated 9 October 2002).
(7) Law by Decree No. 39 for 202 Approving the State General Budget
(8) Law by Decree No. 40 for 2002 Concerning Ratification of the Agreement
Establishing the Regional Organisation of Fishing Nets
This Law by Decree No. 40 for 2002 was passed on 14 October 2002
(Official Gazette No. 2552, dated 16 October 2002).
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291
(9) Law by Decree No. 44 for 2002 Amending Certain Provisions of Law by
Decree No. 21 for 1989 Concerning Societies, Social and Cultural Clubs,
Sport Clubs and Private Institutions
(10) Law by Decree No. 45 for 2002 Ratifying the Agreement on Defence and
Cooperation between the Government of Bahrain and the Government
of the United States of America
(11) Law by Decree No. 50 for 2002 Establishing the General Organisation
for the Protection of Marine Wealth, Environment and Natural Life
(12) Law by Decree No. 51 for 2002 Ratifying the Agreement between the
Kingdom of Bahrain and the Islamic Republic of Iran Concerning
Cooperation between them in the Economic, Commercial and Technical
Fields
(13) Law by Decree No. 52 for 2002 Ratifying the Agreement Concerning the
Encouragement and Protection of Investment between the Kingdom of
Bahrain and the Islamic Republic of Iran
(14) Law by Decree No. 53 for 2002 Ratifying the Agreement Concerning
Avoiding Double Taxation between the Kingdom of Bahrain and the
Islamic Republic of Iran
(15) Law by Decree No. 56 for 2002 Concerning the Interpretation of Certain
Provisions of the Law by Decree No. 10 for 2001 on the General Amnesty
from Crimes Relating to National Security
Bahrain
292 Country Surveys
ANNEX II
DECREES ISSUED AND PASSED IN 2002
(1) Decree No. 37 for 2002 Issuing the Implementing Regulations for the
Law of Tenders and Government Purchases.
This Decree No. 37 for 2002 on the Implementing Regulations of the
Tenders and Government Purchases Law No. 36 for 2002 was passed on
9 October 2002 (Official Gazette No. 2551, dated 9 October 2002).
(2) Decree No. 38 for 2002 changing the name of the Central Body of
Statistics
This Law by Decree No. 38 for 2002 changed the name of the Central
Body of Information. It was passed on 14 October 2002 (Official Gazette
(3) Decree No. 39 for 2002 Establishing and Organising the Land
Registration Body
(4) Decree No. 40 for 2002 Amending Certain Provisions of Decree No. 5 for
1973 Concerning Public Holdings
(5) Decree No. 41 for 2002 Concerning the Regulation of the General
Organisation for Protection of Marine Wealth, Environment and Natural
Life
293
1 It should be pointed out that in its capacity as a legislative power, the new National Assembly,
formed under the provisions of the new 2002 Constitution, has resumed its legislative role
which was suspended for the last 30 years since the passing by the government of Bahrain of
the unconstitutional Amiri Order No. 4 for 1975 which suspended the work of the old National
Assembly provided for under the 1973 Constitution. During the last 30 years, legislation took
the form of Laws by Decrees, instead of Laws, recommended by the Council of Ministers
and issued by the Amir, since the Council of Ministers was authorised by Amiri Order No. 4
for 1975 to undertake the role of legislation for the country, in addition to its executive functions
during the absence of the National Assembly which was dissolved since 1975 by the said Amiri
Order.
At present, the National Assembly, as a legislative power, approves legislation by means of
Laws, subject to the approval of the King. However, under Article 38 of the Constitution, the
Executive Power can still issue Laws by Decrees, subject to future approval by the National
Assembly, during the period of the dissolution of the National Assembly or the period of its
summer recess in accordance with the provision of the 2002 Constitution.
Bahrain
ANNEX III
LAWS ISSUED AND PASSED IN 2003
1
(1) Law No. 1 for 2003 Approving a Government Loan for US$500 million
through the Issuance of Governments Bonds
This Law No. 1 for 2003 was passed on 2 April 2003 (Official Gazette No.
2577, dated 9 April 2003).
(2) Law No. 2 for 2003 Amending Certain Provision of Law by Decree No. 6
for 1987 Concerning Treatment of Nationals of the Gulf Cooperation
Council in Respect of their Economic Activities in Bahrain
This Law by Decree No. 2 for 2003 was passed on 2 April 2003 (Official
Gazette No. 2576, dated 2 April 2003).
(3) Law No. 3 for 2003 Amending Certain Provisions of Law by Decree No.
15 for 1977 Concerning the Issuance of Development Bonds
2577, dated 9 April 2003).
(4) Law No. 4 for 2003 Ratifying the Loan Agreement between Bahrain and
Kuwait Fund for Arab Economic Development for Providing Funds for
the Project Concerning the Expansion of Hidd Electric Power Station
2577, dated 9 April 2003).
(5) Law No. 5 for 2003 Approving the Regulations (Law) Concerning
Agriculture Quarantine between Gulf Cooperation Council Countries
2578, dated 16 April 2003).
(6) Law No. 7 for 2003 Concerning Commercial Secrets
This Law No. 7 for 2003 was passed on 14 June 2003 (Official Gazette No.
2586, dated 18 June 2003).
(7) Law No. 8 for 2003 Approving the Regulation (Law) Concerning Veterinary
Quarantine between Gulf Cooperation Council Countries
This Law No. 8 for 2003 was passed on 14 June 2003 (Official Gazette No.
2586, dated 18 June 2003).
294 Country Surveys
ANNEX IV
DECREES ISSUED AND PASSED IN 2003
(1) Decree No. 1 for 2003 Regulating the General Organisation of the Pension
Fund of the Ministry of Finance and National Economy
This Decree No. 1 for 2003 was passed on 7 January 2003 (Official Gazette
No. 2564, dated 8 January 2003).
(2) Decree No. 3 for 2003 Establishing the Governments Tendering Council
No. 2564, 8 January 2003).
(3) Decree No. 10 for 2003 Establishing the Directorate of Public and
International Relations in the Ministry of Labour and Social Affairs
No. 2565, dated 15 January 2003).
(4) Decree No. 28 for 2003 Amending Certain Provisions of Decree No. 14
for 2002 Establishing the National Security Body
This Decree No. 28 was passed on 2 April 2003 (Official Gazette No. 2576,
dated 2 April 2003).
(5) Decree No. 38 for 2003 Establishing the Natural Gas Committee
This Decree No. 38 for 2003 was passed on 28 June 2003 (Official Gazette
No. 2588, dated 25 June 2003).
(6) Decree No. 58 for 2003 Amending Decree No. 5 for 1973 Concerning
National Holidays
This Decree No. 58 for 2003 was passed on 17 November 2003 (Official
Gazette No. 2609, dated 19 November 2003).
295
Oman
Andrew Rae* and Brian Howard*
1 SOURCES OF LAW, JUDICIAL AND LEGAL SYSTEM
It is now 33 years since the present Sultan, His Majesty Sultan Qaboos Bin
Said, came to power in 1970 and the renaissance of Oman continues apace.
There has been no appeasement in the continued development of the legal
system and laws of Oman, although one can anticipate a certain amount of
time will be taken in consideration of what has been achieved to date with the
anticipated census 2003 due to be conducted in November and December
2003. Over the last 12 months, the Civil and Commercial Procedure Rules for
the courts of Oman (Royal Decree 29/2002, referred to in last years Yearbook)
have been successfully implemented providing an increased sophistication to
the judicial system in Oman which caters for the growing complexity of Omans
relatively young legal regime.
Royal Decrees 21/2003 and 64/2003, Establishing the Security Court and
the Law of the State Security Court, have set up an alternative judicial process
to run alongside the criminal courts, the administrative courts and the three
tiers of the civil court of Oman. The new State Security Court has jurisdiction
to try the crimes specified in Chapters 2 and 3 of Part 1 of the second book of
the Omani Penal Code, in addition to cases referred to it by His Majesty The
Sultan or a recommendation of the National Security Council. The Penal
Code crimes referred to are those which involve an assault against the internal
security of the State, His Majesty The Sultan or against an entity of the Sultanate
(see below).
2 INTELLECTUAL PROPERTY
Royal Decree 30/2002 issued the Telecommunications Law of Oman. This
replaced and repealed the Wireless Telegraphy Law (Royal Decree 59/1985)
and empowered the Ministry of Transport and Communications to issue
* Partners, Trowers & Hamlins, Sultanate of Oman.
296
necessary supporting regulations and decisions for its enforcement. The law
applies to all kinds of telecommunications other than those used for national
security.
The Minister for Transport and Communications is charged with
formulating the general policy of the telecommunications sector to ensure
that the telecommunications sector is expanded to satisfy the requirements
associated with economic development.
The Telecommunications Law and anticipating regulations will encourage
investment in the telecommunications industry, open the door to competition
in the telecommunications sector and further ensure that telecommunication
devices are not kept under surveillance, inspection, delay or confiscated unless
it involves an undermining of public order or etiquette. This is subject to the
provisions of the Penal Procedure Law (Royal Decree 97/1999), and it should
be noted that a telecommunications licence holder is not permitted to use a
confidential language, signal or code in media messages and conversation
without a written approval from the newly formed Telecommunications
Organisation Authority.
The Telecommunications Organisation Authoritys basic aims are to achieve
provision of telecommunications services in all parts of the Sultanate of Oman
within reasonable limits and prices including, in particular, for emergency
services, public telephone services, directory information services, server
assistance, marine services and services for rural regions. The authority has
subsidiary aims of using telecommunications services with a view to entering
into the international market, encouraging Omani exports, ensuring the
optimum use of the frequency spectrum, encouraging telecommunications
services commercial activities, preparing the ground for competition between
licence holders to ensure international standards and to encourage research
and development in the sphere of telecommunications.
The Telecommunications Organisation Authority is also responsible for the
more banal tasks of dividing radio stations into certain categories, specifying
their sites and approving their call codes, distributing the framework of
frequency spectrums, setting the standards for types of radio equipment that
may be used, licensing the operation of radio stations, maintaining the
necessary registers and observing transmissions to prevent cross-connection
or unauthorised transmissions.
Telecommunications licences are now divided into several categories and
are subject to certain fees. No person is entitled to operate any telecommuni-
cations system within Oman or provide telecommunications services without
obtaining a licence. The telecommunications licences cover basic public
telecommunications services and additional public telecommunications.
Non-public telecommunications services are covered by a third category of
licence.
The Telecommunications Law also imposes certain prohibitions on anti-
competitive activity within the telecommunications sector. Any attempt to
prevent or restrict competition in the telecommunications market is strictly
prohibited.
The Telecommunications Law, as stated above, comprehends the
promulgation of executive regulations that will outline the details surrounding
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297
this regime. The details of the executive regulations are as yet unknown. The
Sultanate of Oman takes the issue of telecommunications very seriously,
which is evidenced by the 16 separate provisions of law which each specify
different offences and penalties should the Telecommunications Law of Oman
be breached.
3 CIVIL LAW (CONTRACT AND OBLIGATIONS)
There have been no developments under this title.
Last years Yearbook referred to the new civil and commercial procedure rules
for the courts of Oman, The Law of Civil and Commercial Procedures (Royal
Decree 29/2002). This law had only just been promulgated at that stage and
is some four times longer than its predecessor. Whereas, without doubt, the
Law of Civil and Commercial Procedures is certainly clearer than its predecessor
and much more specific, it is still not quite embedded into the Oman system.
Commercial cases proceed without many significant or remarkable changes
and many of the more complicated provisions of civil procedure have yet to
be fully applied and tested. For this reason, the jury is very much still out.
During 2003, Royal Decree 40/2003 introduced the Law of Notaries Public.
This law regulates the appointments and powers of the public notaries in
Oman. Notaries public form part of the Ministry of Justice and are regulated
by the Civil Service Law (Royal Decree 8/1980). Notaries Public should have
a university degree in sharia or law and have no penal disciplinary judgment
against them. They must swear an oath to perform their duties with honesty
and integrity and have an official seal.
Notaries public have the authority to authenticate signatures, to issue
contracts and other instruments required to be issued by a notary public,
keep originals of such documents and provide various certificates such as
marriage and divorce certificates. A notary public is not entitled to notarise
any document not written in Arabic unless it is provided with a translation
into Arabic by a legal translation firm. In such cases, both the instrument and
the translation are to be authenticated.
It is our understanding that, following the issuance of the Law of Notaries
Public, the numbers of notaries public have significantly reduced.
Consequently, whereas previously many law firms had registered public notaries
within their offices, they are now directing applicants for notarisation to the
courts of the Sultanate of Oman.
There has also been an amendment to the advocacy law pursuant to Royal
Decree 41/2003. The original advocacy law (Royal Decree 108/1996) had a
specified list of activities which could only be practised by lawyers licensed to
practise law in Oman. This list has been modified slightly such that the exclusive
jurisdiction of advocates is to attend on behalf of a concerned person before
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298
the judiciary, arbitration organisations, general and administrative courts
and other official investigation authorities to defend their interests in cases
filed against or by them, and to provide legal opinions and advice including
the drafting of contracts. The ability for lawyers to attest contracts has been
withdrawn.
Royal Decrees relating to the State Security Court (Royal Decrees 21 and
64/2003) have introduced an additional system of justice in respect of offences
against State Security and His Majesty The Sultan. The State Security Court
has jurisdiction to try crimes such as assault against His Majesty The Sultan,
attempts to overthrow the regime, insurrection, civil war, intentional
impairment of public authorities, acts of terror, usurpation of public authority,
hijack, riotous gatherings, bearing arms, contempt of the national flag, treason,
obstruction of national defence and treachery. It also includes a jurisdiction
over assaults against foreign Heads of States, their diplomats, and contempt
of foreign flags.
The jurisdiction is not exclusive and the State Security Court may hear
any case referred to it by His Majesty The Sultan or the National Security
Council.
Subject to specific exemptions, the State Security Court applies the provisions
of the Oman Penal Code and the Procedures set out in the Criminal Procedures
Law. Public security authorities are authorised to deal with the substantive
handling of cases and to investigate crimes within the State Security Courts
jurisdiction. Special officers will be nominated by the decision of the National
Security Council who have the same authority as the public prosecutor. They
will form a new department called the State Security Cases Department.
As it is within His Majestys and the National Security Councils power to
start an investigation or case, they may also suspend any case and re-open it.
The accused is granted basic civil liberties with respect to the appointment of
attorneys etc., but there is an overriding duty of confidentiality imposed on
court officials in respect of these cases.
5.1 The structuring of Ministries and Units of State
There have been a substantial number of Royal Decrees this year restructuring
and specifying the rights and prerogatives of various Ministries and ministerial
authorities.
Royal Decree 17/2002 restructures the Council of Civil Services and specifies
its prerogatives.
Royal Decree 38/2002 specifies the prerogatives of the Ministry of Health.
Royal Decree 24/2003 establishes the Public Authority for Craft Industries.
This Royal Decree was supplemented by Royal Decree 53/2003 which
promulgated the statute of the Public Authority for Industrial Crafts and
approved its organisational structure.
Royal Decree 32/2003 defines the prerogatives of the Ministry of Social
Development and approves its organisational structure.
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299
Royal Decree 37/2003 specifies the prerogatives of the Office of the Minister
of State and Governor of Dhofar and endorses its organisation structure.
Royal Decree 63/2003 was also issued on the National Security Council.
5.2 Border agreement
Royal Decree 10/2003 endorsed the border agreement between the Sultanate
of Oman and the United Arab Emirates with regard to the border section
from East of Al-Akidat to Al Dara.
6 COMMERCIAL LAW
6.1 Consumer protection
Affecting particularly suppliers of products and services, Royal Decree 81/
2002 promulgated the Consumer Protection Law and came into force on 28
November 2002. In the past, consumers have received some protection under
Oman law through various provisions in the commercial laws of Oman but in
keeping with international trends, the Consumer Protection Law dramatically
expands those protections and seeks to regulate consumer-related issues.
Previous laws which have been applied to the consumer/supplier
relationship will also continue to have effect to the extent that they do not
contravene the provisions of the Consumer Protection Law. Earlier laws which
have been applied in this area can be found in the Commercial Law (Royal
Decree 55/1990) but relate only to the supply of goods. No similar provisions
have previously been applied to regulate the supply of services although it is
arguable that the Court would imply similar provisions if necessary. It should
be noted also that these earlier provisions are only applied in the absence of
an agreement between the parties, whereas the new law would not be as easy
to contract out of. The Consumer Protection Law very clearly puts the new
position as one where all conditions, contained in contracts, documents,
remarks, advertisements or memoranda related to commercial business shall
be considered invalid if they are inconsistent with the terms of the Consumer
Protection Law or are liable to exempt the supplier from his civil liability
towards the consumer.
The consumer, as defined in the Consumer Protection Law, is a natural
person or a body corporate purchasing a commodity or service or benefiting
from either of the two. On the other end of the relationship is the supplier,
defined as, A natural person or a body corporate offering a service,
manufacturing a commodity or distributing it, dealing in it, selling, importing
or exporting it or participating in its production or circulation as an agent,
intermediary or broker.
It is not yet known what the executive regulations which will supplement
the Consumer Protection Law will contain. It is possible that these supporting
regulations may provide guidance as to the extent of the law and will specify
whether the definition of consumer will be interpreted widely to cover
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300
the full range of end users extending as far as government bodies or whether
the legislation is more intended to protect the more vulnerable consumers
in essentially day-to-day transactions. It is possible that the legislation may
be interpreted in the future to allow large negotiated transactions to be
outside the strict scope of the legislation as is often the case in other
jurisdictions.
Under the Consumer Protection Law, the consumer is entitled to seek
compensation for damage caused to him on account of his purchase or normal
use of the commodity or receipt of service. This will mean that even where
there is no specific guarantee in place to protect the consumer, they will be
able to rely on certain minimum rights. Payments may extend beyond simple
refunds to requiring suppliers to provide the consumer with a payment over
and above this by way of compensation. Again, it will be interesting to see how
the courts interpret the extent of the compensation claim which can be
awarded to the affected consumer.
Suppliers are also required to guarantee the commodities and services they
provide to ensure conformity with declared specifications. They will also have
to meet health and safety conditions. This will include a duty on suppliers of
commodities that are liable to undermine the security of individuals or
property to display a clear and specific notice . . . specifying the accurate
method of using the commodity . . . (Unofficial translation the Arabic text
prevails.)
Suppliers duties will not end when the service or product has been
purchased by a consumer. Under Article 15, when defects are identified by
suppliers and are liable to undermine the safety of individuals or property,
even when used in a proper manner by the consumer, there is an obligation
on the supplier to notify the consumer and concerned entities promptly of
this potential damage and the method of preventing its occurrence.
In the event that suppliers breach the provisions of the Consumer Protection
Law and its Executive Regulations (when issued), they will be subject to fines
of up to RO 5,000. In instances where the offence is repeated, this fine can be
doubled. Perhaps more significantly for larger companies is the threat that
breach of the Consumer Protection Law can result in closure of shops and
confiscation of goods.
In addition, the Consumer Protection Committee was established by
Ministerial Decision 22/2003 whose task it is to implement and enforce the
Consumer Protection Law. The Ministry of Commerce and Industry has also
set up a specific Directorate General of Consumer Protection to tackle these
issues.
6.2 Interest on consumer loans
The last year has seen two reductions on the maximum interest chargeable
on consumer loans by banks. At the start of the period covered by this Yearbook,
the maximum interest rates on lending by banks was RO 12 per cent. This was
subsequently reduced to 11 per cent and then to 10 per cent (effective 1
January 2004).
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Further, Ministerial Decision 151/2002 issued by the Ministry of Commerce
and Industry specifies the profit which can be made on a consumer loan or
credit not issued by a bank or a finance/asset leasing company licensed by the
Central Bank of Oman. Consequently, ordinary consumer loans outside the
purview of the Banking Law (Royal Decree 114/2000) are fixed at a rate of 10
per cent per annum unless a lower amount is agreed upon within the
documents.
6.3 Capital markets and corporate regulations
2002/2003 has seen a raft of developments in the field of corporate
governance, particularly from the capital markets perspective.
Royal Decree 18/2002 amended certain provisions of the Capital Market
Law (Royal Decree 80/1998). Significant developments in this regard were as
follows:
(a) The amendment to Article 7 of the Capital Market Law reduces the
critical point of domination of any public company. Previously, any
person or group of associated persons holding more than 15 per cent
of the issued shares in an open joint-stock company that wished to own
35 per cent or more of those shares had to notify the Capital Market
Authority prior to making such a purchase at which point the authority
had an option to restrain such intention if it was not in the interest of
the national economy. There is now an absolute prohibition on a person
together with his relatives holding 25 per cent or more of the shares
in a joint-stock company without obtaining the prior approval of the
executive president of the Capital Market Authority. This reflects broader
market standards regarding what is deemed to be a controlling position
within the company, particularly given that holding more
than 25 per cent of the shares in a company will, in Oman, put
that shareholder in a position of negative control (i.e. the position
whereby any special resolutions can be blocked at that shareholders
will); and
(b) The Capital Market Authoritys power to establish the rules and
regulations in respect of public joint-stock companies was expressly
extended to include the ability to regulate the organisation and
management of such companies. Failure to comply with these rules
opens the management up to a specific fine of between RO 5,000 and
RO 50,000.
The Capital Market Authority has seized upon this legislative change by
introducing the Code of Corporate Governance for open joint-stock
companies. This was initially promulgated pursuant to Circular 11/2002 in
June 2002. This has subsequently been revised and companies are now working
from the Code of Corporate Governance for MSM Listed Companies (2nd
Edition, January 2003).
The Code of Corporate Governance reflects the international taste for
increasing the requirements of corporate governance following the spate of
major international corporate failures over the past ten years. In many respects,
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302
the Code of Corporate Governance reflects European thinking on how to
best protect the publics investment in companies.
The salient features of the Code of Corporate Governance for open joint-
stock companies are as follows:
(a) The composition of the board of directors of open joint-stock companies
must now be such that the majority of the board is non-executive (i.e.
not working for a fixed monthly or annual salary) and at least one-third
of the board are to comprise independent directors. In this context, a
director is independent if he or she or any of his or her first degree
relatives have not occupied any senior position in the company for the
last two years and have also not had any relations with the company, its
parents or affiliates which could result in financial transactions. This
board is now required to meet at least four times a year, with not more
than four months between any two consecutive meetings. At those
meetings the board must have a board secretary who should minute
the items discussed;
(b) The Code of Corporate Governance also specifies certain functions of
the board of directors. These functions include approving the business
and financial policies of the company; reviewing the companys financial
objectives, plans and actions; setting out internal regulations for the
company regarding its routine activities; specifying the responsibilities
and authorities of its executive management; approving and
implementing the companys disclosure policies; monitoring the
companys compliance with regulatory requirements; approving
delegation of power; reviewing material transactions with related parties
and the companys performance; approving and then implementing
the companys disclosure policy; evaluating whether the business is
properly managed; establishing sub-committees with specific roles,
responsibilities and powers; selecting the chief executive officer/general
manager and other key executives; approving interim and financial
statements; and reporting to the shareholders in the annual report on
the status of the company;
(c) The board is under an obligation to establish an audit committee which
is to be comprised from at least three directors (all of whom must be
non-executive and at least two of whom should be independent). The
audit committee must have at least one member with accounting
expertise and must meet at least four times a year. The audit committee
is to hear the views of the external auditors, consider the auditors
independence, review the companys audit plans, check for and detect
financial fraud, oversee the companys internal audit function, oversee
the adequacy of the internal control systems, review the annual and
quarterly financial statements of the company, review the companys
risk management policies and review specific transactions with related
parties;
(d) The Code of Corporate Governance also imposes certain limitations
upon the companys external auditor. External auditors must be
appointed for a period of one year and may only be appointed for up to
four consecutive financial years, after which time they will not be eligible
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303
for reappointment until two years have elapsed. Auditors are not entitled
to provide non-audit services which could affect their independence;
(e) The Code of Corporate Governance regulates the management of open
joint-stock companies. The executive management must be appointed
under contractual arrangements specifying the terms of their appoint-
ment. The executive management is accountable to the board and the
non-executive members and chairman of the board are not to interfere
in the routine matters of the company. The company must have an
organisational manual specifying the roles and responsibilities of the
executive management and approving a comprehensive delegation of
powers to various levels of management etc. Annually, the management
must prepare a management discussion and analysis report which is
provided to the shareholders along with the directors report, annual
accounts and a report on compliance with the provisions of corporate
governance;
(f) The Code of Corporate Governance also specifies the rules for related
party transactions. Related party transactions are widely defined.
Essentially, any transaction between a company and its directors,
substantial shareholders, or other affiliated entities or relatives of these
related parties not made in the ordinary course of business of the
company must be approved in advance by the general meeting of the
company unless certain limited exemptions apply. The approval of the
general meeting has to be very detailed and specific in order to satisfy
the new regulations; and
(g) The Code of Corporate Governance also covers issues such as the
broader principles of corporate governance it tries to instil and the
minimum information that must be placed before the board of
directors.
In many respects, the Code of Corporate Governance can be viewed as a step
too far. It is compulsory and is supported by penal provisions for failure to
comply. The view, however, is taken by many local directors that these issues
of corporate governance are the issues they would have expected to be resolving
upon similar lines whether the company was regulated in this or not. Essentially,
principles of best practice are being made compulsory through this regime
although there are inevitably situations where the aptness of the more detailed
requirements may be questionable and, obviously, complying with such a broad
regime does have its cost implications.
Ministerial Decision 137/2002, issued by the Ministry of Commerce and
Industry, supported this new taste for corporate governance. Ministerial
Decision 137/2002 specifies the Rules and Conditions for Election of Directors
in Public Joint-Stock Companies and their Responsibilities.
This Ministerial Decision takes quite a novel approach to the election of
directors to the board. Whereas, prior to Royal Decree 77/2002 (discussed in
this Yearbook, Vol. 8) any shareholder with 10 per cent of the shares in a public
joint stock company was entitled to appoint a director as their nominee, this
Ministerial Decision requires that the board of directors be appointed by a
procedure akin to the cumulative voting systems found in a few U.S. States.
Under this procedure, rather than simple majorities or the agreed nomination
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304
procedures ordained by each companys constitutive documents being
followed, each shareholder must now participate in an election of directors
conducted by secret ballot. Each shareholder is to have a number of votes
equal to that of the shares held by him and has the right to use the entirety of
his votes in support of one candidate or divide his shares among other
candidates of his choice through his voting card. The board of directors is
then selected from those candidates who achieve the highest number of votes
on the final tally. This is subject to the requirement that the board of directors
must be in the majority non-executive and at least one-third independent.
Any election in violation of this is automatically null and void.
Ministerial Decision 137/2002 sets out a specific list of additional
responsibilities of the board of directors. Further, Article 6 of Ministerial
Decision 137/2002 clarifies that directors of public joint-stock companies are
jointly liable, without prejudice to their personal or criminal liabilities, for
their acts which violate the provisions of the Commercial Companies Law
(Royal Decree 4/1974) which detriment the company or the shareholders
rights as a result of failing to assume their powers and responsibilities.
Consequently, there is an additional head of liabilities imposed upon
directors of public companies over and above those under the Commercial
Law (Royal Decree 55/1990), the Commercial Companies Law (Royal Decree
4/1974), the Capital Market Law (Royal Decree 80/1998), and the Code of
Corporate Governance.
Having successfully instilled this regime for open joint-stock companies, a
similar regime was introduced for closed joint-stock companies in the summer
of 2003.
Closed joint-stock companies are Omans larger companies which do not
seek public subscription for their shares. Such companies now have their own
Code of Corporate Governance issued by the Ministry of Commerce and
Industry and their own Rules and Regulations for the Elections of Directors
issued by Ministerial Decision 92/2003. It is still too early to say what effect
this regime will have upon these companies, which by and large are investment
entities, family owned trading houses and project companies.
The regulations for the election of directors in closed joint-stock companies
do require the same cumulative voting system to be followed and specify the
same joint liability for the board of directors in respect of failing to assume
their powers and responsibilities. At least half of the board of directors of an
SAOC company must be non-executive, but there is no requirement for a
closed joint-stock company to appoint independent directors. As a result, it is
no longer feasible for all shareholders within such companies to simply
nominate their directors and further, 51 per cent of the shares in a company
will no longer entitle the shareholder to 100 per cent of its board of directors.
One of the principal difficulties that may be faced over the coming months
and years is the ability to locate suitable candidates to fill the role of non-
executive directors for closed joint-stock companies, given that they are not
entitled to any remuneration or salary, and particularly, given the liabilities
that are potentially imposed upon them. In addition, it is not entirely clear
whether or not non-executive directors bear the same corporate responsibilities
and liabilities as executive directors in relation to the affairs of the company.
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The law clearly states that the liability of directors is joint, but the application
of this law is likely to be mitigated.
6.4 Mining
Royal Decree 27/2003 introduced a new Mining Law that repeals the provisions
of Royal Decree 42/1974 relevant to mineral mining and sets out a new
legislative framework to govern the extraction of Omans mineral wealth. By
virtue of Royal Decree 27/2003, the Ministry of Commerce and Industry now
has the authority to implement this legislation and expand upon it
by issuing implementing regulations. Mineral wealth in this context does
not include oil or natural gas (which is still regulated by Royal Decree 42/
1974).
In essence, Royal Decree 27/2003 allows Omani individuals and companies,
and branches of foreign companies based in Oman, to exploit Omani mineral
resources, owned by the state, by means of either licences or concessions. A
licence is primarily intended to be issued for exploration and prospecting,
while a concession envisages the actual extraction and sale of mineral raw
materials or the processed product of these raw materials or ores. The scope
of a licence holders activities is further limited by a prohibition on the holder
removing any mineral from the area covered by the licence, except for scientific
analysis, without the prior written permission of the Director-General of
Minerals at the Ministry of Commerce and Industry. A holder of either a
licence or a concession must obtain a licence from the Ministry of Commerce
and Industry in order to dispose of the product if new reserves of mineral
raw materials are discovered.
The new Law contemplates a mining utilisation agreement. This is an
agreement between the holder of the licence or concession and the Ministry
of Commerce and Industry addressing matters such as royalties, environmental
protection, and dispute resolution. Common to both licences and concessions
is the requirement to resolve disputes via arbitration in Oman. It is not clear
whether this addresses disputes between the holder and the Ministry of
Commerce and Industry or other government ministries, or the holder and
private entities in connection with the operation of the licence or concession.
It is clear, however, that this provision will not have retroactive effect (i.e. the
provisions of previous licences or concessions will not be affected in this
regard).
Both licences and concessions contain geographical and time limits. A
licence or concession shall be restricted to a certain area, with a licence limited
to a maximum term of five years and a concession limited to a maximum
term of 25 years. Licences and concessions oblige their holders to be proactive
in the exploitation of their rights. A holder of a licence is legally obliged
to spend a minimum monetary amount exploring or prospecting the
area covered by the licence and conducting the mining activities envisaged
by the licence, while the holder of a concession is obliged to install the
necessary infrastructure, develop the mining of mineral raw materials
which are in the scope of the concession agreement, and fulfil the terms of
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the activities plan, an integral yet distinct part of the concession agreement.
It remains unclear whether an activities plan, i.e. an agreed programme
of activities, is intended to form part of a licence as well as a concession.
Article 1 defines an activities plan as an approved programme incorporated
into both licences and concessions. However, Article 10 obliges the licence
holder to conduct only those activities pursuant to the licence issued to him.
Both licences and concessions carry the obligation to make safety a priority in
all mining or exploration activities, as both licences and concessions oblige
holders to implement the safety recommendations of the Director-General of
Minerals. An obligation to employ and train Omanis will also be a condition
of either a licence or a concession, reflecting the Labour Laws emphasis on
the Omanisation of the labour force.
Although not included in the obligations of holders section of the
legislation, it is clear that both licences and concessions will require payment
of royalties to the Ministry of Commerce and Industry. These royalties must
be paid on the dates specified in the licence or concession, and failure to pay
may result in the Ministry of Commerce and Industry using its authority to
ban the holder from disposing of any extracted mineral until satisfaction of
the outstanding amount. The exact amount of the royalty must not exceed 10
per cent of revenues obtained from the sale of the materials extracted from
the licence or concession area. The exact amount for each licence or
concession will be specified by further implementing regulations issued by
the Ministry of Commerce and Industry.
Applications for both licences and concessions are subject to considerations
of safety and environmental concerns and the potential effect on Omans
water resources and archaeological heritage. It is implied that various relevant
ministries will have a consultative role in the application process. It is also
implied that these ministries will play a continuing role in the overall
supervision of the licence or concession once operations have commenced.
Quite logically, applicants for concessions face more stringent requirements
than applicants for licences as regards the possible environmental effects of
their intended activities. A mining concession will not be granted until the
applicant presents reports approved by both the Ministry of Regional
Municipalities, Environment and Water Resources and the Ministry of Heritage
and Culture setting out the predicted impact on the environment and sites of
archaeological interest. These reports must include an Environmental Impact
Assessment that satisfies international standards. Perhaps more significant is
that concessions could potentially contain requirements that concession
holders must take restorative action in respect of areas in which mining has
ceased. The legislation does not specify whether a holder would be required
to undertake this action only with regard to its works or also with regard to
works of previous holders of the concession. It is left open for further
regulations to lay down the specifics of this requirement. Obviously, this could
impose significant liabilities on prospective concession holders.
The provisions on concessions also require high levels of fiscal transparency.
A holder must provide data (the nature of which is to be specified in later
regulations issued by the Ministry of Commerce and Industry), and a copy of
the holders audited accounts must be presented to the Director-General of
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307
Minerals within three months of the end of each financial year. A holder must
also send, free of charge, its books and records relating to the concession to
the Director-General of Minerals whenever he deems it necessary. Again, the
exact nature of the records required is yet to be specified but will probably be
of a financial nature. In contrast, no similar provisions are in place as regards
licences.
A licence holder, however, must give notice to the Director-General of
Minerals once mineral raw materials are discovered. A holder must also conduct
a feasibility study investigating the economic viability of extracting the newly
discovered mineral resources either no later than one year from the date of
the notice or within the period specified by the Minister of Commerce and
Industry.
The legislation gives the Ministry of Commerce and Industry the ability to
enforce the provisions of the legislation and the terms of individual licences
and concessions via the powers vested in the Minister. The Minister has the
ability to suspend or cancel the rights of the holder if the holder breaches the
provisions of the present legislation, the provisions of future regulations issued
by the Ministry of Commerce and Industry, or the terms of the mineral
utilisation agreement. The Ministry also has at its disposal an inspectorate
that is intended to have full judicial authority, and a regime of penalties that
includes the imposition of fines of up to RO 10,000 or two years imprisonment
for acts of dishonesty connected with applications for licences or concessions
or with the maintenance of records concerning the operation of licences and
concessions.
Royal Decree 27/2003 provides a framework which the Ministry of
Commerce and Industry will flesh out with regulations and specifically
authorises the Ministry of Commerce and Industry to issue implementing
regulations on the procedures and fees for applying to the Ministry of
Commerce and Industry for a licence or concession, the areas covered by
such licences and concessions, the operational safety requirements of running
a licence or concession, and the data and records that should be maintained
by licence or concession holders.
6.4 Tourism
Royal Decree 33/2002 promulgated the Tourism Law. This was introduced to
allow for a planned increase in the expansion of tourism within Oman. The
Authorities have realised that one of Omans enduring and most remarkable
natural resources is its unspoilt beauty. Opportunities are being introduced
so that tourism can be appropriately marketed to discerning tourists seeking
such a holiday destination.
The remit of tourism has fallen with the Ministry of Commerce and Industry
which is to issue the supporting regulations in relation to this law. The Law
repeals the Regulations for Travel and Tourism Offices issued by Royal Decree
12/1988.
Article 1 of the Law of Tourism, quite unusually, constitutes a preamble to
the law stating its objectives as follows:
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The encouragement, and development of tourism in the Sultanate and the
development of its resources and investments, in order to increase its contribution
to the national economy, with a view to organising the establishment and exploitation
of the tourist regions and the overwhelming tourist ingredients of the country and
preparing the necessary administrative bodies and human resources, to encourage
and give an impetus to tourist activity, in a manner that strengthens the civilisation
and cultural bonds between the nationals of the Sultanate and the people of other
countries.
This sounds like a well-prepared mission statement but clearly shows the
drive the Sultanate of Oman has to encourage this area as a source of income.
The Ministry of Commerce and Industry is to make an overall assessment
of the tourism potential for the Sultanate and prepare national plans for the
development of tourism.
The Ministry is also empowered to control the prices of commodities and
services provided in hotel and tourist establishments in addition to introducing
appropriate courses to train Omanis in the field of tourism and to improve
the techniques of tourism promotion.
The Director-General of Tourism shall keep special register of all entities
licensed to carry on tourist activity within the Sultanate and such entities must
submit statements to the Directorate-General every six months specifying the
tourism programmes they carry out. Further, they are to submit to the Ministry
of Information all of their tourism applications and leaflets for approval prior
to distribution.
Royal Decree 33/2002 also establishes the National Committee for Tourism
whose task it is to accelerate the tourism drive in the Sultanate. It is to study
the opportunities for tourism investments and to attract national and foreign
private sector investors to cooperate in this. They are empowered to explore
the opportunity to establish tourist regions and explore the possibilities
removing obstacles to the allotment of land for its purpose. They are also to
advise upon the appropriate means to simplify procedures for setting up tourist
projects.
It is for the Ministry of Commerce and Industry to designate specific tourism
regions for tourist exploitation. The decision of the Minister requires the
approval from the Council of Ministers. No person whether natural or juristic,
may occupy such a site or region without a licence from the Ministry of
Commerce and Industry. Further, hotels and tourist establishments may not
be set up, utilised or managed without such a licence. It is for the executive
regulations to regulate the conditions and procedures in respect of these.
The Tourism Law also seeks to grade hotels and tourism establishments,
and further, the executive regulations will specify the conditions and rules
that must be satisfied by any business conducting tours, sales or issuance of
tickets, provision of transport, and organisation and management of national
and international exhibitions/conferences.
6.5 Medicine and dentistry
Royal Decree 36/2002 as amended by Royal Decree 36/2003 sets out the new
Law on the Practice of Medicine and Dentistry.
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7 TAXATION
2003 has seen several significant revisions of the tax laws of Oman.
7.1 Income taxes
Royal Decree 54/2003 amending the Corporate Income Tax Law (Royal
Decree 47/1981), Royal Decree 55/2003 amending the Law of Profit Tax on
Commercial and Industrial Establishments (Royal Decree 77/1989) and Royal
Decree 56/2003 amending the Foreign Capital Investment Law (Royal Decree
102/1994) introduced modifications to the way tax exemptions and the rates
of income tax within Oman apply.
In compliance with the Government of Omans World Trade Organization
commitments, there has been an equalisation of the tax rates applicable to all
Omani registered companies whether they be owned by Omanis, G.C.C.
nationals or non-G.C.C. foreigners. Amendments to Schedule 2 of the
Corporate Income Tax Law resulted in a tax position whereby all Omani
registered companies will pay the following rates of tax in respect of their
taxable income:
(a) Taxable income between RO 0 RO 30,000: 0 per cent;
(b) Any taxable income exceeding RO 30,000: 12 per cent.
Consequently, any company that has in excess of 70 per cent of foreign capital
investment no longer has to pay the staggered rates of between 0 to 30 per
cent for the tax year commencing 1 January 2003. The old staggered rates do,
however, still apply to branch offices of foreign companies (i.e. companies
not registered in the G.C.C. States) which will be taxed at the following rates:
(a) Taxable income below RO 5,000: 0 per cent;
(b) Taxable income above RO 5,000 but not exceeding RO 18,000: 5 per
cent;
(c) Taxable income above RO 18,000 but not exceeding RO 35,000: 10 per
cent;
(d) Taxable income above RO 35,000 but not exceeding RO 55,000: 15 per
cent ;
(e) Taxable income above RO 55,000 but not exceeding RO 75,000: 20 per
cent;
(f) Taxable income above RO 75,000 but not exceeding RO 100,000: 25
per cent; and
(h) Taxable income above RO 100,000: 30 per cent.
Whereas the strict legal position under the Foreign Capital Investment Law
remains that there can be no wholly-owned foreign capital investment
companies without specific approvals having been obtained at an extremely
high level (and even then, only if the company is working on a project that
contributes to the development of the national economy), we have in recent
months noticed an increased willingness on the part of the Ministry of
Commerce and Industry to accommodate greater foreign participation in
Omani registered companies, in particular, with respect to information
technology companies based at the newly-established Knowledge Oasis
Muscat.
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The changes to Omans taxation of income have also extended the
exemptions applicable. Profits or gains now achieved by any company from
the selling or disposing of securities registered with Muscat Securities Market
are exempt from tax. Any losses, however, incurred through the selling or
disposing of securities on the Muscat Securities Market are not deductible in
the computation of income tax.
Whereas, previously, companies that had their main activities in any of the
following areas were exempted from income tax for a limited period of time,
this exemption has now been modified such that these companies are now
only exempted from income tax insofar as their realised income is attributable
to the areas listed below:
(a) industry pursuant to the Law on the Organisation of Industry and
Mining;
(b) export of products manufactured or processed locally;
(c) promotion of tourism;
(d) produce of farms and the processing of their produce and related
industries;
(e) fish processing, farming and culture;
(f) exploitation and implementation of public utilities projects; and
(g) universities, higher educational institutes and colleges.
Further specific exemptions have been added to income generated by foreign
airlines with a permanent establishment in Oman (on a reciprocity basis).
Income derived by companies whose main business is in the field of university
education, colleges, higher institutes, private schools, nurseries, training
colleges and institutes or in the field of medical welfare are also exempted
from tax in respect of that income.
A further exemption from income tax is given to investment funds
established in Oman in accordance with the Capital Market Law or which are
established abroad to deal with Oman securities registered with the Muscat
Securities Market.
It is also worthwhile noting that the exemptions relating to foreign airlines,
investment funds and higher education institutes are not time limited.
The previous exemptions were exempt from tax for an initial period of
five years from the date of commencement of their activities which is
then renewable for a further five years in the case of necessity. The amend-
ments to the Law of Income Tax on Commercial and Industrial Establishments
and the amendments to the Foreign Capital Investment Law by and large
mirror the amendments made to the Corporate Income Tax Law detailed
above.
7.2 Customs taxes
The Arab Gulf Cooperation Council (G.C.C.) summit in Doha, Qatar, at the
end of 2002 introduced the initial building blocks for a customs union between
the G.C.C. States.
Ministerial Decision 108/2002 implements the decision of the G.C.C.
Supreme Council with regard to the enforcement of the customs union and
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the amendments to the customs tariff. As a result of this, the G.C.C. customs
union has been implemented within Oman from 1 January 2003. The unified
customs tariff of the G.C.C. customs union is set at the rate of 5 per cent on all
foreign goods imported from outside the customs union area. Exemptions
are available for certain goods pursuant to the decision of the Supreme Council
of the G.C.C. and the Unified Customs Law promulgated by the G.C.C. in
December 2001.
The Unified Customs Law of the G.C.C. States mentioned above was officially
made part of Oman law by Royal Decree 67/2003. The Unified Customs Law
aims to harmonise customs regulations and procedures throughout the States
of the G.C.C. Importantly, the Unified Customs Law contains detailed
provisions on the practical implementation of the new regime and on the
categories of customs exempt goods within the G.C.C.
The previous customs laws have been repealed subject to a few exceptions
regarding the recovery of customs tax in relation to exports to non-G.C.C.
countries. It is anticipated that even these provisions will be repealed in the
course of time in favour of multinational regulations. Of specific note are the
exempted goods under the unified customs law which include the following:
(a) those goods stated to be exempted in the unified customs tariff;
(b) imports by diplomatic corps, consulates and international organisations
provided that there is a reciprocal arrangement within international
agreements relating to such imports;
(c) imports for all sectors of the military forces and internal security forces
if approved by the Minister supervising the Ministry of Finance;
(d) personal effects and used household items brought into the country by
foreign nationals entering the country for the first time (subject to
certain controls);
(e) personal effects and gifts in the possession of passengers provided these
are not of a commercial nature;
(f) imports by charities (subject to certain conditions);
(g) Omani goods, which had previously been exported, upon their return;
(h) imported foreign goods, which had previously been re-exported,
provided they are returned within one year; and
(i) goods which are temporarily exported for finishing and repair are subject
to customs tax on the amount of the additional value resulting from
such finishing or repair.
Customs offices are given wide powers of investigation in respect of smuggling
which include powers to search, confiscate, detain, and arrest. The law specifies
a general definition of smuggling and then 11 specific instances that will be
deemed to be smuggling for the purposes of law. This law also criminalises
the offences of aiding and abetting smuggling and various other inchoate
offences. The Unified Customs Law is relatively detailed but, even so, Royal
Decree 67/2003 anticipates the support of executive bylaws which have yet to
be issued by the Inspector General of Police and Customs. Until such
regulations are issued, the current supporting regulations, decisions and bylaws
remain in force provided that they do not expressly contradict the G.C.C.
customs provisions.
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7.3 Double Tax Treaties
Royal Decree 57/2003 ratifies the agreement entered into between the
Government of the Sultanate of Oman and the Government of the Republic
of Sudan to avoid double taxation and prevent tax evasion with regard to
income taxes.
Royal Decree 92/2002 ratifies the agreement entered into between the
Government of the Sultanate of Oman and the Government of the Republic
of South Africa on the avoidance of double taxation and prevention of tax
evasion on the income taxes.
8 EMPLOYMENT AND LABOUR LAW
8.1 Pensions
Royal Decree 29/2003 promulgates the Law on Pensions and After Service
Gratuities for the Staff of Internal Securities Services.
8.2 New Labour Law
Royal Decree 35/2003 promulgated a new Labour Law. This repealed Royal
Decree 34/1973 and incorporates a wide variety of important changes with
respect to the various aspects of the employer/employee relationship.
The significant changes between the new and old labour laws are as follows:
(a) The limitation period within which an employee may make a claim under
the Labour Law has been reduced from two years to one year. This,
however, is mitigated by the fact that all cases filed by employees at
court and at all stages of litigation are exempt from filing fees.
(b) The new law gives the Directorate of Labour a very wide role regarding
the employment of Omanis. The Director is to receive information
regarding job vacancies from employers and the conditions required
for filling these vacancies. The Director can then nominate employees
for vacant positions and such recommendations can, in certain
circumstances, be binding on employers.
(c) The provisions as to what must be and what cannot be within an
employment contract have also altered. All labour contracts in Oman
must be either written in Arabic or have an Arabic version. This is true
whether the contract is for employment of an Omani or an expatriate.
(d) Employment contracts must contain an undertaking from the employee
that he shall:
(1) abide by the terms and conditions provided for in the contract;
(2) respect the Islamic religion, the laws of the country, its customs and
social traditions; and
(3) refrain from involvement in any activities prejudicial to the security
of the country.
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(e) It is now possible for any party to terminate an employment contract
during a probationary period by giving the other party at least seven
days notice. Previously, the labour law had been silent on this point.
(f) The old labour law did not contain any reference to the obligations
of employees whereas the new Labour Law does. It provides that an
employee must:
(1) perform the work according to the directions and supervision of
his or her employer according to the contract, the law and the work
systems. In the performance of his or her work he or she must take
the care of the reasonable man;
(2) he or she must obey the employers instructions in respect of work
agreed upon if they do not contradict the contract or the law and
obedience to such instructions will not expose him or her to dangers;
(3) look after the means of production entrusted to him and take care
of them to the standard of an ordinary man including taking all
necessary measures for their maintenance and safety;
(4) not disclose work secrets;
(5) undertake continuously to develop his or her skills and experience
professionally in accordance with the rules laid down by the
employer;
(6) not use the tools of work outside the place of work without the
approval of his employer; and
(7) observe instructions of safety and vocational health adopted by his
or her employer.
Consequently, not only must the employee perform his or her work in
accordance with the direction, supervision and instructions of his employers
in accordance with his contract, the law and work systems (regulations,
company policies, etc.) in place, but he also undertakes continuously to develop
his skills and experience professionally. Interestingly, the law contains a
reference to the fact that employees must exercise the care of the reasonable
and ordinary man, which perhaps implies that a failure to achieve those
standards could be seen as negligence. We have yet to see what interpreta-
tion the courts of Oman will give to these additional statutory employee
obligations.
In addition, the new labour law contains new provisions relating to the
company policy and disciplinary procedures, and an extension to the period
under which an employee may be suspended from work. The provisions
relating to summary dismissal have also been extended such that an employer
may summarily dismiss an employee if, during working hours, they are found
drunk or intoxicated by narcotic substances or if the employee gravely breaches
his or her obligations to perform the work agreed upon in his contract of
employment.
The new Labour Law has extended the statutory leave entitlement of
employees in their second and third years of service to 30 days paid leave.
The new Labour Law also covers areas such as representative committees,
specific provisions regarding employees in mining, oil, gas and quarrying
industries, provisions relating to employment of juveniles and females,
provisions regarding transfer undertakings and matters such as sick leave.
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Whereas it is not true to say that the new Labour Law was a complete overhaul
of the existing system, it is certainly viewed by the market as a step in the right
direction and only time will tell exactly how successful it will be.
9 FAMILY LAW AND SUCCESSION
Ministerial Decision 171/2003 issued by the Ministry of Justice sets out the
procedures concerning the issuing of marriage and divorce documents.
10 CRIMINAL LAW PROCEDURES
Royal Decree 42/2003 amends the Penal Procedures Law. This Royal Decree
amends Articles 334 and 335 of the Penal Procedures Law concerning when
someone convicted of a criminal offence can be treated as rehabilitated.
Royal Decree 24/2002 ratified the Protocol on Controlling Marine
Transportation of Hazardous Waste and Other Waste Across Borders.
There have been a number of such environmental treaties acceded to and
ratified. For example, Royal Decree 67/2002 ratifies the Agreement on
Conservation of Natural Life and Natural Habitants within the A.G.C.C. States,
Royal Decree 88/2002 ratifies decision 3/1 of the Basel Global Convention
on the Control of Trans-Boundary Movements and Disposal of Waste, Royal
Decree 33/2002 approves the Sultanates accession to the Agreement on
Material Protection of Nuclear Substances, and Royal Decree 43/2003 endorses
the Pact on the Comprehensive Ban on Nuclear Tests.
In addition, Royal Decree 87/2002 ratifies the International Convention
on the Elimination of All Forms of Racial Discrimination.
A number of bilateral treaties have also been entered into during the past
year. Royal Decree 42/2002 endorses the investment protection treaty with
the Republic of Ukraine.
Royal Decree 68/2002 ratifies the Agreement on Commercial Exchange
between the government of the Sultanate of Oman and the government of
the Republic of Thailand.
Royal Decree 9/2003 endorses the Agreement on Regulating Air Services
signed between the Government of the Sultanate of Oman and the State of
Kuwait.
Royal Decree 20/2003 ratifies the amendment to the air services agreement
between the Sultanate of Oman and Sri Lanka.
Royal Decree 62/2003 ratifies the amendments to the agreement organising
air transport services between Oman and Austria.
Further, in the area of aviation, Royal Decree 89/2002 ratifies the Sultanates
succession to the 1952 Rome Convention on Damages Caused by Foreign
Aircraft to Third Parties on Land.
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Yemen
Nageeb Shamiri*
1.1 Dispute between the President of the Republic and the Speaker of
Parliament
A constitutional controversy arose between the President of The Republic
and the Speaker of Parliament, when the President sent a letter to the Speaker,
in March 2003, in which the President stated that it was a constitutional
violation, committed by the Speaker, to send letters to the Summit Conferences:
one Arab (in Sharm-el-Sheikh/Egypt), the other Islamic (in ad-Dowhah/
Qatar), where the President represented the Republic of Yemen in both
and that the commission of such a violation should not be repeated.
The text of the Presidents Letter was as follows:
In accordance with the constitution of the Republic of Yemen: the representation of
the Republic, within the Republic and abroad, is confined to the person of the
President of the Republic the Head of State and the House of Representatives
has no right whatsoever to send Letters to Summit Conferences in which the State is
Represented by the Head thereof, or whosoever is authorised to so represent the
Head of State. The fact that the House of Representatives has sent letters to the Arab
Summit Conference held at Sharm-el-Sheikh, and then to the Islamic Summit
Conference held at Ad-Dowhah, constitutes a constitutional violation committed by
a constitutional institution; and this action should not be repeated in future, in
compliance with the constitution as well as the consolidation of proper constitution
exercise.
1.2 Establishment of the National Security Organisation
The President of the Republic issued on 6 August 2002 Republican Resolution
No. 261/2002, in connection with establishment of the National Security
Organisation, for the Republic of Yemen, in the capital, Sanaa, with the
possibility of setting up Branches thereof in the Provinces, and coming under
* Justice of the Supreme Court and Member of the Supreme Judicial Council.
316
the President of the Republic, with wide-spread responsibilities and powers
but, at the same time, provides that the Organisation shall perform the duties
and responsibilities thereof: without prejudice to the constitutional principle
of the multi-party political system, public freedoms and human rights; as well
as without any contradiction with the provisions of the constitution and laws
in force.
The aims and objectives of the Organisation are:
to guarantee the safety and stability of the Republic;
to protect the national security thereof; and
to take whatever measures as its supreme interests and ways/means
needed to preserve its sovereignty as well.
The main responsibilities of the Organisation can be summarised as follows:
tracing, collecting, making available and analysing the intelligence
information/data regarding all hostile stances and activities waged from
abroad, which represent threats against the national security of the
country; and the sovereignty, political system, economic and military
position thereof; and assessing the appropriate viewpoints and proposals
to counter such threats and activities and deal therewith;
collecting and making available the intelligence information/data
regarding everything relating to the affairs and matters in all fields of
the national security of the Republic;
following-up the activities and positions related to the sovereignty of the
country, national security and foreign policy thereof; and submitting the
necessary reports and analysis, together with the appropriate remarks
and recommendations;
receiving the intelligence reports, analysis and information/data from
the various sources, and studying and submitting them together with
opinions thereon;
studying and analysing the political, economic, social, cultural and security
researches and studies which are prepared by foreign organisations and
institutions, and finding out the extent of the impact thereof on the
national security;
discovering and fighting the hostile terrorist activities waged against
national security and securing the borders of the country and islands
thereof against any incursions whatsoever by the hostile elements
directed from abroad;
following and collecting the data or information as regards the spying
activities in all forms, ways and aims as well as working with a view to
discovering and fighting them;
securing the defence of the Armed and Security Forces and the other
State institutions and organs, as well as the diplomatic and consular
missions of the Republic abroad as against any incursions hostile to the
national security;
securing the confidentiality of State political, military and economic
secrets;
taking measures and precautions essential for preserving the security and
defending the Republics interests abroad in coordination with the
Ministry of Foreign Affairs;
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strengthening and developing relations of cooperation with counterpart
organisations in brotherly and friendly countries, and exchanging
information and experience therewith, with a view to protecting the
supreme national interests of the country;
qualifying and training the personnel of the Organisation, and working
continuously to develop their capabilities and raise their standards both
theoretically and practically;
preparing the necessary reports and analysis, according to the prevailing
national intelligence circumstances; and following up the extent of the
implementation of the assignments, together with the submission thereof
to the authorities concerned.
1.3 April 2003 General Election and formation of new government
The President of the Republic issued on 3 March 2003 Republican Resolution
No. 2/2003, calling registered voters to take part in the General Election,
which took place on Sunday 27 April 2003. However, according to an
announcement by the Supreme Elections Commission, on 5 November 2002,
the number of citizens who had registered in the Voting Registers all over the
Republic was 8,097,162 voters, both male and female, which was 88 per cent
of those eligible to have their names registered (an estimated 9 million), out
of which 45 per cent were females. This should be compared to 5.6 million
registered voters, the maximum for the 1993 and 1997 General Elections.
The number of male registered voters was 4,670,659, while the number of
female registered voters was 3,415,651. The number of constituencies was
301, and each constituency returned one member to Parliament. The Peoples
National Congress, under the President of the Republic, won a landslide
victory: 240 seats in the 301 seats of Parliament. The President of the
Republic issued on 1 May 2003 Resolution No. 4/2003, calling the newly
elected Parliament to convene its first session in Sanaa, within ten days:
10 May 2003.
On 10 May 2003, the President accepted the Letter of Resignation of
the present Government, submitted by the Prime Minister: Resolution No.
5/2003; and issued Resolution No. 6/2003, asking Mr. Abdul-Qader A.R.
Ba-Jammal to form a new Government, which took place on 17 May 2003:
Republican Resplution No. 105/2003.
The new Government is composed of the Prime Minister, two Deputy Prime
Ministers and 32 Ministers, 17 of whom are new faces, as are 11 Ministers of
the new Parliament (see also this Yearbook, Vol. 7).
1.4 Standing Orders of the Advisory Council
The President of the Republic promulgated on 31 September 2002 Law
No. 39/2002 in connection with the Internal Regulations (Standing Orders)
of Ash-Shoura (Advisory) Council, made up of 125 sections, in 7 chapters,
as follows:
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title; definitions; objectives; responsibilities and the organs of the Council:
the Presidium; the Main Committee; the Standing Committees and the
General Secretariat.
procedures of the Council: submission of studies and proposals and giving
opinions and recommendations; the joint constitutional responsibilities
with the House of Representatives;
the Councils responsibilities as regards care of the Press, Civil Society
Organs and the Local Authority;
the Councils assessment of the prevailing policies and the Auditors
reports; queries and public debates; organs of the Council: the Presidium
and responsibilities thereof;
the responsibilities of the Speaker, his two deputies and the main
Committee;
the formation of the Standing Committees (13 in number) and
responsibilities thereof which are as follows:
(1) Constitutional, Legal and Judicial Committee;
(2) Political, Foreign Affairs and Immigration Committee;
(3) Economy Committee;
(4) Finance Committee;
(5) Local Authority and Services Committee;
(6) Administrative Reform, National Security and Human Development
Committee;
(7) Defence and Security Committee;
(8) Education and Scientific Research Committee;
(9) Information, Culture, Youth and Sports Committee;
(10) Agriculture, Fisheries and Marine Resources Committee;
(11) Human Rights, Public Freedoms and Civil Society Committee;
(12) Health and Population Committee; and
(13) Environment and Tourism Committee.
procedures of the Council: the Councils meetings, debates and
discussions; casting of votes and minutes thereof;
General-Secretariat and responsibilities thereof: the Councils budget and
final accounts. Members business: allowances, and privileges; rights and
obligations; loss of membership; resignations and vacant seats;
concluding provisions: the Ordinary Sessions of the Council (two per
year); any Extraordinary Meetings; the Councils holidays are the month
of August and the Muslim Fasting month of Ramadan.
1.5 Standing Orders of the House of Representatives
The President of the Republic promulgated Law No. 18/2003, in connection
with the Standing orders of the House of Representatives (the Yemeni
Parliament), consisting of 232 sections, in 8 parts, as follows:
Part one: definitions and general principles.
Part two:
Chapter 1: The organs of the House; the Presidium of the House; the
Committees; and the General-Secretariat.
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Chapter 2: The election of the Presidium.
Chapter 3: The responsibilities of the Presidium.
Chapter 4: The responsibilities of the Speaker.
Chapter 5: Formation of the Committees and responsibilities thereof.
It is worth mentioning that there are 19 Standing or permanent
Committees, which are as follows: constitutional and legal; development,
petroleum and minerals; trade and industry; finance; education; higher
education, youth and sports; information, culture, tourism and
environment; services; public health and population; transport and
communications; agriculture, fisheries and water resources; labour force
and welfare; foreign affairs and immigrants; justice and religious
endowments; codification of Islamic sharia principles; defence and
security; local authority; petitions and complaints; public freedoms and
human rights. More Committees may be set up by the House. The House,
too, has the right to set up ad hoc Committees, when necessary.
Chapter 6: The formation of the General-Secretariat, and responsi-
bilities thereof.
Part three: The performance of the responsibilities of the House:
Chapter 1: The meetings of the House.
Chapter 2: Keeping order in the House.
Chapter 3: The procedure of the meetings.
Chapter 4: The closure of the discussions.
Chapter 5: Voting.
Chapter 6: The minutes of the meetings.
Part four: The work of the House.
Chapter 1: Legislative affairs.
Chapter 1.1: Bills and proposals;
Chapter 1.2: Treaties and agreements.
Chapter 2: Supervision by the House.
Chapter 2.1: Questions.
Chapter 2.2: Resolutions, requests for discussions, and investigations;
Chapter 2.3: Discussing the Government Programmes and/or State-
ment regarding its policy.
Chapter 2.4: Questioning.
Chapter 2.5: Petitions and complaints.
Chapter 3: Finance.
Chapter 3.1: Budgets and final accounts.
Chapter 3.2: Development plans.
Chapter 3.3: The estimates of the House and accounts thereof.
Part five: Provisions regarding membership:
Chapter 1: Decision on validity of membership.
Chapter 2: Membership declared null and void.
Chapter 3: Resignation.
Chapter 4: Vacant seats and recess.
Chapter4.1: Vacant seats.
Chapter 4.2: Attendance safeguards.
Chapter 5: Members immunity.
Chapter 6: Members rights and privileges.
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Part six: Procedure for nominations for the Presidential Elections.
Part seven: Procedure for amending the Constitution.
Part eight: General provisions.
In conclusion, the present Law repeals the provisions of the Standing Orders
passed by Law No. 42/1997. The promulgation of the present Law has been
made necessary due to the amendments to the Constitution, agreed to by a
Referendum held during the year 2001.
2 INTERNATIONAL AGREEMENTS AND TREATIES
The President of the Republic issued the following Laws and Republican
Resolutions, regarding ratification of bilateral and some multinational agree-
ments between the Republic of Yemen and other States. They are dealt with,
hereinunder, as follows:
(1) Religious Affairs:
The President of the Republic issued Republican Resolution No. 404/2002,
ratifying the executive programme for the years 2002/2004, for the coopera-
tion with Iran, in the fields of Awqaf (Islamic religious endowments) as well
as Islamic affairs.
(2) Commercial, Economic, Trade, Investments, Tourism, Housing and Fishing:
The President of the Republic issued the following Republican Resolutions
(and Law) to this effect: No. 401/2002, ratifying the economic, commercial
and technical cooperation agreement with Bahrain; No. 301/2002, ratifying
the reciprocal encouragement and protection of investments agreement with
Bulgaria; No. 362/2002, ratifying the commercial agreement with Bulgaria;
No. 41/2003, ratifying the Memorandum of Understanding on investments
with Ethiopia; No. 71/2003, ratifying the executive protocol of the tourism
cooperation agreement with Lebanon; No. 115/2003, ratifying the cultural
and tourism cooperation agreement with Bahrain; No. 116/2003, ratifying
the encouragement and protection of investments cooperation agreement
with Bahrain; No. 118/2003, ratifying the economic and technical cooperation
agreement with China; No. 119/2003, ratifying the encouragement and
protection of investments cooperation agreement with India; No. 125/2003,
ratifying the fishing cooperation agreement with Mauritania: in addition to
Law No. 41/2002, ratifying Yemen becoming a party to the executive
programme for facilitating and developing the exchange of trade among the
Arab countries, known as the Pan-Arab Free Trade Zone.
(3) Education, Youths and Physical Training, Culture and Information:
The President of the Republic issued the following Republican Resolutions
(and Laws) to this effect: No. 250/2002, ratifying the youths and sports
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cooperation protocol; for the years 2002/2005, with Sudan; No. 251/2002,
ratifying the twin-agreement between the institutes for physical and sports
education in Yemen and Algeria; No. 402/2002, ratifying the technical
education and vocational training cooperation agreement with Ethiopia;
No. 405/2002, ratifying the higher education and scientific research
cooperation protocol with the United Arab Emirates; No. 356/2002, ratifying
the Cooperation Note with the United Nations Organisation of Education,
Science and Culture (UNESCO); No. 23/2003, ratifying the cooperation agree-
ment on social affairs with Lebanon; No. 37/2003, ratifying Memorandum of
Understanding with the Gulf States Union for Education; No. 38/2003,
ratifying Memorandum of Understanding with the Ministry of Education in
the United Arab Emirates; No. 39/2003, ratifying the Memorandum of
Understanding with the Arab Organisation for Education, Science and Culture;
No. 40/2003, ratifying Memorandum of Understanding with the Islamic
Organisation for Education, Science and Culture; No. 42/2003, ratifying the
Memorandum of Understanding on educational and scientific cooperation
with Algeria; No. 65/2003, ratifying the educational and scientific cooperation
agreement with Lebanon; No. 72/2003, ratifying the technical educational
and vocational training cooperation agreement with Lebanon.
(4) Avoidance of Double Taxation:
The President of the Republic promulgated the following Laws to that effect:
Laws Nos. 8, 9, 10, 11, 12, 13, 14, 15, 16 and 17 of the 2003 with Lebanon,
Sudan, Algeria, Iraq, Kuwait, United Arab Emirates, Oman, Syria and Ethiopia:
respectively; in addition to Republican Resolution No. 117/2003 with Bahrain.
(5) Specifications, Measurements, Quality Control and Environmental Protection:
The President of the Republic issued the following Republican Resolutions to
that effect: No. 364/2002, ratifying the technical cooperation agreement
between the Yemeni Public Corporation for Specifications, Measurements and
Quality Control and its Saudi Arabian counterpart; No. 36/2003, ratifying the
Memorandum of Understanding on the preservation of environmental species
between the concerned agencies in Yemen and Saudi Arabia; No. 75/2002,
ratifying the technical cooperation protocol in the specifications, measure-
ments and quality control field between the concerned agencies in Yemen
and Lebanon; No. 126/2003, ratifying the technical cooperation agreement
in the specifications, measurements and quality control field between the
concerned agencies in Yemen and Bahrain.
(6) Petroleum Affairs:
with ratifying the Production Sharing Agreement between the Yemeni Ministry
of Oil and Minerals and the Yemeni subsidiary company of the Yemeni Public
Corporation for Oil and Gas, with both Carigaly Petroleum Company and
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Insan Wiktis (Hadhramawt) Company Limited at Block No. 52 at (Sar) area
in Hadhramawt Province.
The President also promulgated Law No. 30/2003, ratifying the Production
Sharing Agreement in oil and gas exploration and exploitation in Hadhramawt
Province between the Yemeni Ministry of Oil and Minerals and the Irish
Oil (Middle-East) Ltd. The President also issued Republican Resolution
No.1/2003, ratifying the Implementation Agreement between the Yemeni
Ministry of Oil and Minerals and the Refinery of Hadhramawt; and Republican
Resolution No. 59/2003, ratifying the Implementation Agreement of purchase
of oil by-products as well as supply of non-refined oil for Ras Isa Refinery,
near Al-Hudaidah between the Yemeni Ministry of Oil and Minerals and Hood
Oil Ltd.
(7) Loans:
The President of the Republic promulgated the following Laws to that effect:
No. 27/2992, ratifying the Loan Agreement with the Saudi Fund for
Development for US$50 million for contributing to financing the project
of establishing technical institutes and vocational training centres; No. 28/
2002, ratifying the Loan Agreement with the Arab Fund for Economic
and Social Development for US$49 million for contributing to financing the
second phase of the social fund for development projects; No. 30/2002,
ratifying the Loan Agreement with the IDA for US$5 million for financing
higher education projects; No. 31/2002, for ratifying the Loan Agreement
with the OPEC Fund of International Development for US$12 million for
financing the project of renewal and extension of the sewage system of
Al-Hudaidah city; No. 37/2002, ratifying the Loan Agreement with the
Arab Fund for Economic and Social Development for US$90 million as
participation of financing the power cables Marib/Sana a project; No. 38/
2002, ratifying the Loan Agreement with the IDA for US$27,350,000 to
finance the health sector reforms support project; No. 43/2002, ratifying
the Loan Agreement with the IDA for US$130 million to finance the water
and sewage system project in the urban towns; No. 44/2002, ratifying the
Loan Agreement with the Saudi Fund for Development for US$6 million
to finance the engineering services for the roads projects; No. 21/2003,
ratifying the Loan Agreement with the IDA for US$23,400,000 to finance the
development project of the ports cities; No. 27/2003, ratifying the Loan
Agreement with the International Fund for Agricultural Development for
US$14,014,602 to finance Dhamar Province rural development project; No.
36/2003, ratifying the Loan Agreement with the Islamic Development Bank
for US$13,450,000 to finance the roads project; No. 37/2003, ratifying the
Loan Agreement with the IDA for US$ 24 million to finance the water project
of the capital/Sanaa.
(8) Various Other Matters:
(a) Republican Resolution No. 32/2002, in connection with ratifying the
Agreement Concerning the Implementation of the International
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Guarantees, within the Framework of the Treaty of the Non-Spreading
of the Nuclear Weapons, executed on 21 September 2000, between the
Republic of Yemen and the International Agency for Atomic Energy.
(b) Republican Resolution No. 258/2002, ratifying the Republic of Yemen
becoming a Party to the Memorandum of Understanding, regarding
the Control of Vessels at the Ports of the Indian Ocean Region.
(c) Law No. 42/2002, ratifying the International Roads Agreement in the
Arab East, executed on 4 July 2001.
(d) Republican Resolution No. 74/2003, ratifying the Declaration of the
Friendship and Cooperation Relations Principles, between Yemen and
Russia, signed on 16 December 2002.
(e) Law No. 47/2002, ratifying Consular Agreement between Yemen and
Russia.
3 LOCAL AUTHORITIES
The President of the Republic promulgated Law 25/2002, in connection with
Amendment of sections 13, 20, 154 of the Local Authority Law No. 4/2000, in
addition to a new section 171 recurrent, as under:
(i) Section 13: The term of the Local Councils shall be three years, with
effect from the first meeting thereof. The President of the Republic
shall call upon the voters to elect new Local Councils at least 60 days
prior to the end of the term of the present Councils. Should it not be
possible to hold the elections, due to emergency circumstances, the
present Councils shall carry on operating until after the said
circumstances shall have ended, in which case the new Local Councils
shall be elected.
(ii) Section 20: The Supreme Elections Commission shall, according to
the aforementioned provision, undertake the task of dividing the
District into Electoral Wards, so that every Ward shall be represented
by one or more members at the Districts Local Council.
(iii) Section 154: As an exception to the provision of section 13 of Law 4/
2000, in case the time due for the new Local Council Elections happens
to be during the same year as the Parliamentary Elections, or the
Presidential Elections, or Referendum, then the Local Council Elections
shall take place simultaneously with any of the other events.
(iv) New Section 13: The term of the present Local Councils shall be
extended by three years, with effect from the end of their term (27
April 2003). (N.B. (1) see this Yearbook, Vol. 7, and (2) the second
such conference would take place during the second half of October
2003.)
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4 FAMILY LAW AND WOMENS RIGHTS
4.1 Reorganisation of the Higher Council for Women
The President of the Republic issued Republican Resolution No. 35/2003, in
connection with the reorganisation of the Higher Council for Women, under
the chairmanship of the Prime Minister and the National Commission for
Women which shall be the executive as well as the administrative consultative
organ, and which is a body corporate, and independent financially. The
Resolution consists of 21 sections, in 6 chapters, as follows:
Chapter one: formation and composition of the Council, made up of 38
members, of whom ten are ex officio, including the Chairman: the Prime
Minister and as members, the President and Deputy-President of the
National Commission for Women, in addition to the liaison head at the
capital and all provinces, and six women proposed by the President of
the National Commission for Women which means there is a majority of
women (28 out of 38).
Chapter two: the duties and responsibilities of the Council.
Chapter three: the meetings of the Council at least once every six months.
Chapter four: the composition of the National Commission for Women
and duties as well as responsibilities thereof.
Chapter five: the financial resources.
Chapter six: the general and concluding provisions.
Note that the Council was first set up by a Resolution of the Prime Minister:
No. 68/2000. Now, a Republican Resolution sets up the Council which means
more importance is attached to the Council. In addition, more women have
been appointed to the new Council, and they represent a big majority therein:
which gives a greater say to women in formulating policies that serve their
best interests.
The National Commission for Women has prepared a Study proposing the
amendment of 24 provisions from ten laws as regards womens rights according
to which the Council of Ministers issued a Resolution approving, in principle,
the Study and at the same time formed a committee composed of
representatives from the Commission, the Ministry of Legal Affairs and the
Supreme Council for Women to consider the Study. The provisions under
consideration relate to the following ten laws:
Nationality
Prisons
Penal
Civil Occurrences and Civil Register
Personal Status
Labour
Civil
Diplomatic Cadres
Judicature; Entry and Residence of Foreigners.
Nos. 2.3., 2.4.; 2.5., 2.6. and 2.7 deal with amendments to Nationality; Prisons;
Civil Occurrences and Civil Register; Personal Status and Labour Laws.
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4.2 Ratification of the formation of the Arab Women Organisation
Agreement
4.3 Amendment of the Prison Law
The President of the Republic promulgated Law No. 26/2003, amending
section 27 of the Prisons Law No. 28/1991, which provides as follows: there
shall be provided for the pregnant woman prisoner prior to, during and after
delivery the necessary medical attention as well as care, in accordance
with the directions of the doctor in charge as well as provided for by the
regulations.
The authorities concerned shall give to the pregnant female prisoner or
mother prisoner the food that is recommended for her. However, under all
circumstances, the pregnant woman who falls within the ambit of the provisions
of this section is exempted from the disciplinary measures which are inflicted
upon the prisoners, pursuant to the provisions of this Law.
4.4 Amendment of the Nationality Law
The President of the Republic promulgated Law No. 24/2003, adding a new
provision to the Nationality Law No. 5/1994, which is section 10 recurrent,
and which states as follows:
In the event of the divorce of the Yemeni wife who is married to a foreigner, and that
husband has left to her the responsibility of taking care of his children from her, or
that she has become so responsible as a result of the husbands death, insanity, absence
or he has ceased to reside with them for a period which is not less than one year
those children shall be treated as Yemenis for all intents and purposes, as long as
they are in the care of their mother until after they have become of age. Any of the
children who has become of age shall be entitled to exercise the choice between
either acquiring the Yemeni nationality or following the fathers nationality.
4.5 Amendment of civil occurrences and civil register law
Law No. 23/2003, amending the Civil Occurrences and Civil Register Law
No. 32/1991. The original sections Nos. 21, 47, 61 and 63 shall be amended as
follows:
Section 21: The persons who are under an obligation to notify as regards
the birth of a child are: one of the parents of the child; the male nearest
relatives of the child and then the female nearest relatives; the managers
of hospitals or clinics or prisons where the births of the children have
taken place.
Section 47: Registration of the person shall be at the office of civil
occurrences at the original domicile or permanent place of residence.
Sections 61 and 63: Both sections are concerned with penalties for violations.
Moreover, the following new provisions shall be added:
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Section 6 recurrent and 6 recurrent 1: There shall be instituted the system
of the serial national registration number; and every person shall be given
a number to be attached to his or her name to be used for all certificates,
documents and identity card.
Sections 61 recurrent and 63 recurrent: both are concerned with penalties
for violation of these provisions.
4.6 Amendment of the Law of Personal Status
section 47 of the Personal Status Law No. 20/1992, according to which the
amended provision entitles either spouse for applying for dissolution of the
marriage contract due to insanity or serious illness such as leprosy etc.
4.7 Amendment of the Labour Law
The President of the Republic promulgated Law No. 25/2003, adding a new
provision: section 5 recurrent, to Labour Law No. 5/1995 and amendments
thereof: according to which the amended provision reads as follows:
Public and private corporations with 50 or more workers at one and at the same
installation are under an obligation either to establish a nursery, or make use of the
services of a nursery, for the children of the women workers: according to the terms
and conditions specified by a Resolution of the Minister of Welfare and Labour.
5 HUMAN RIGHTS
5.1 Law of demonstrations and processions
The President of the Republic promulgated the Law of Demonstrations and
Processions No. 29/2003, consisting of 29 sections, in 5 chapters, as follows:
title and definitions;
organisation of demonstrations and processions;
the obligations and responsibilities of the concerned body;
penalties, and
concluding provisions.
5.2 Advisory Human Rights Bureau
The Prime Minister issued Prime Ministers Resolution No. 851/2002,
appointing 30 members to the Advisory Bureau of the Supreme National
Human Rights Commission: six from the universities; eight women; five
journalists/medical people; one senior judge/member of the Supreme Judicial
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Council, one social personality; nine heads of the various unions (Trades
Unions; Federation of the Chambers of Commerce; Womens Union; Writers
Union; Family Planning Society; Red Crescent Society; Bar Council; Journalists
Syndicate; Artists Union. Note that this Resolution replaces a similar
Resolution issued during the year 1999.
5.3 Internal regulations of Supreme National Human Rights Commission
The Prime Minister issued the Prime Ministers Resolution No. 43/2003, in
connection with the Internal Regulations (Standing Orders) of the Supreme
National Human Rights Commission and the organs attached thereto. The
principal provisions of the said Resolution are the following:
Chapter 1: Title, definitions and objectives.
Chapter 2: The Supreme Commission which shall meet at least once every
three months.
Chapter 3: The Advisory Bureau (see this Yearbook, Vol. 8).
Chapter 4: The sub-commission meets once a week.
Chapter 5: The administrative and technical organ of the Supreme
Commission.
Chapter 6: The general and conclusion provisions.
5.4 Implementation of the technical cooperation project agreement
between Yemen and UNHCR
The United Nations Human Rights High Commissions Office in Yemen with
the cooperation of the United Nations Development Programmes team
and the Yemeni National Human Rights Commission started implementing
the Technical Cooperation Project Agreement* signed in Geneva in February
2001, especially with regard to the conditions of the child, and with a view
to establishing a national body for the administration of the juvenile justice
system. The UNDP, and the UNHCR, shall render assistance with regard to
the promotion and drafting as well as implementation of appropriate legis-
lation for juvenile judiciary, where the provisions of the Childs Rights
Convention and other relevant international instruments will be taken into
consideration.
The expected activities, in this connection, shall include assistance in
laying down organisational procedures with regard to dealing with delinquent
children; organising several seminars and training courses; providing guide-
line booklets on the international human rights criteria for those officials
responsible for law enforcement; as well as consolidating the idea of including
the Rights of the Child to the universities teaching curricula. This is considered
the first stage of cooperation within the framework of the bilateral cooperation
agreement in promoting and enforcing comprehensive programme for
consolidating and protecting human rights in Yemen signed between the
UNHCR and the Republic of Yemen, during February 2001, in Geneva.
(*N.B. (i) See Yearbook, Vol. 7. (ii) On 19 November 2002: the President
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of the Republic promulgated the Childs Rights Law No. 15/2002: explained
later).
5.5 New Ministry of Human Rights
The new Yemeni government, formed after the General Elections held on 27
April 2003, includes, as in the previous government, one woman Minister, the
Minister of Human Rights (known as the Minister of State for Human Rights
in the previous government).
6 JUDICIAL AND LEGAL SYSTEM
6.1 UNDP grant aid to Yemen for judicial reform
The UNDP (Yemen Office) and the Yemeni Minister of Justice signed during
June 2003 a technical assistance agreement. According to the agreement, the
UNDP shall give a grant to the Yemeni Ministry of Justice, with a view to
reforming the judicial and legal system in the Republic of Yemen, especially
as regards training of judges, public prosecutors and advocates; court buildings,
starting with two model courts: one in the capital, Sanaa and the other in
the port city of Aden; modernising the judicial administration including
introduction of electronic devices.
6.2 The Civil Procedure Law
The President of the Republic promulgated the Civil Procedure and
Enforcement of Judgments Law No. 40/2002, consisting of 504 sections as
compared with only 285 sections in the abolished Civil Procedure Law No.
28/1992, in 25 chapters, as follows:
(1) Title and definitions; application of the Civil Procedure and judgments;
enforcement legislation as regards time; jurisdiction of magistrates and
judges; general principles as regards the judiciary and litigation; ethics
of judicial/judges; domicile and place of residence; service; null and
void procedure; court administration.
(2) Suits and pre-requisites for registration thereof; international juris-
diction; monetary claims of suits; jurisdiction as to type of suit; juris-
diction as to place of suit; transfer of suit and specification of reference.
(3) Lodging of suits; appearance, non-appearance (or absenteeism) and
times thereof; representation; right of intervention by the Public
prosecution.
(4) Mandatory obligation of the magistrates/judges and public prosecution
not to hear and determine suits; discretionary power (after applications
to this effect by the litigants) of the magistrates/judges and public
prosecution in this respect and procedure thereof; filing of suits against
magistrates/judges and the public prosecution.
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(5) Hearings and procedure thereof.
(6) Defences; joinder (of parties); interlocutary applications; intervention.
(7) Suspension/adjournment of litigation; waiver of right of litigation;
amicable settlement of dispute; loss of right of litigation due to passage
of time.
(8) Main principles as regards passing of judgments and consequences
thereof; summary jurisdiction; courts orders on applications;
correction of judgments; costs of litigation.
(9) Orders for payment (of claims).
(10) Main principles of appeals against judgments; petitions for review/
revision.
(11) Main principles of judgments civil enforcement; jurisdiction in this
respect; decree for enforcement; immediate enforcement (especially
in maintenance orders); parties to enforcement procedure; place of
enforcement; methods of enforcement and general principles thereof;
enforcement of judgments against the State; enforcement of foreign
judgments; disputes arising out of enforcement of judgments.
(12) Concluding provisions: especially abolition of Law No. 28/1992, in
connection with the same topic.
6.3 Commission of prisons and prisoners
The President of the Republic formed a Commission (see Yearbook, Vols. 7
and 8) to visit the prisons and report on the conditions of prisoners, called
the Supreme Commission for Prisons and Prisoners Conditions. The
Commission is constituted as follows:
(1) President of the Supreme Court of the Republic, Chairman.
(2) Director of the Office of the President, Member.
(3) Minister of Legal Affairs, Member.
(4) Minister of Interior, Member.
(5) Minister of Public Health and Population, Member.
(6) Minister of Justice, Member.
(7) The Attorney-General, Member.
The Commission is conferred with the power to investigate the prisoners
and has the responsibility to visit the prisons and examine the conditions.
The Commission submits its reports together with its recommendations, as is
the case every month of Ramadan to the President of the Republic/Chairman
of the Supreme Judicial Council, who commutes or grants partial amnesty, in
accordance with the right conferred by Article 118, paragraph 18 of the
Constitution, as well as in accordance with the provisions to this effect in the
Criminal Procedure Law in force.
It is worthwhile mentioning, however, that the Commission is assisted in
the Provinces by sub-commissions, consisting of the Governor (or Mayor),
the President of the Appeal Court, the Director of Public Prosecutions, the
Chief of Police and the Director of Prisons.
The Commission meets during Holy Ramadan (which fell in November
2002) and, as well, visits the central prisons in the provinces; and receives
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reports from the sub-commissions in this respect. Its recommendations resulted
in setting free about 1,285 prisoners who had served three-quarters, or at
least half, of their prison sentence as well as not being habitual offenders and
having been of good character at the prisons.
6.4 Formation of Drugs Department
in connection with the establishment of the General Department for the
Combating of Drugs, as part of the Ministry of Interior, with the possibility of
establishing branches thereof in the Provinces. The Resolution enumerates
the duties and responsibilities of the said Department as follows:
(1) Prevention of use of drugs.
(2) Combating drug-taking, manufacture, growing or planting, trading
therein.
(3) Regulation of cooperation and coordination with the other security
institutions and government organs with a view to preventing the use of
drugs as well as the pushing of drugs.
(4) Cooperation and coordination with its counterparts in the brotherly
and friendly countries and regional and international organisations.
(5) Guaranteeing the constant and continuous readiness for the personnel
involved in the combating of drugs, with a view to secure the safety and
stability of society.
(6) Preparation of plans and programmes for training and qualifying
personnel working in this field.
(7) Preparation of criminal statistics for drugs crimes and analysing the
data and information thereof.
(8) Preparation of awareness campaigns, with a view to revealing the dangers
of drugs, in cooperation and coordination with the concerned organs.
All this is done with a view to implementing the laws, regulations and resolutions
in force as regards drugs.
6.5 Establishment of specialised juvenile courts, taxation courts and traffic
courts; reorganisation of the commercial and public property courts
The Supreme Judicial Council in meetings held on Monday 3 March 2003
and Thursday 6 March 2002, made Resolutions to establish the following
specialised courts, in the capital, Sanaa and in certain other Provinces:
Five new Juveniles Courts in addition to two already established in
Sanaa and Aden, in Taiz, Hudiadah, Ibb, Dhamar and Hadramawt, with
assistance from UNICEF.
Five new Traffic Courts in Sanaa, Aden, Taiz, Hudaidah and Hadhramawt.
Two new Taxation Courts in Sanaa and Aden.
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Resolution No. 18/2003, issued by the President of the Republic/Chairman
of the Supreme Judicial Council/Reorganising the Commercial Courts (five
in number), by giving jurisdiction to the ordinary courts in this respect:
Resolution No. 19/2003, issued by the President of the Republic/Chairman
of the Supreme Judicial Council.
Note that the establishment of a Juvenile Court is carried out under the
Judicature Law No. 1/1991 and the Care of Juveniles Law No. 1/1993,
according to which one of the three members of the Court should be a female
social worker from the Ministry of Welfare and Labour.
Note also that the setting up of the Traffic Courts is done in accordance
with the Judicature Law provisions.
Finally, as regards the Taxation Courts, this too is an application of the
provisions of the Judicature Law plus the various taxation laws.
6.6 More responsibilities for the Legal Affairs Ministry
amending Republican Resolution No. 46/1993, in connection with the
Organisational Regulations of the Ministry of Legal Affairs, the main
amendments being the following.
By Section 1 there shall be established a General Department for Agree-
ments, Treaties and Boundaries responsible for the following:
(1) participating in the preparation and revision of the draft contracts or
agreements, to which the State or an organ thereof is a party;
(2) studying the treaties and agreements in force, and coordination with
the organ concerned, with a view to fulfilling the legal obligations
imposed by the said treaties and agreements;
(3) specifying the ratification instrument as regards the treaties and
agreements, which shall be signed, and preparation of the ratification
instrument, and keeping the said treaties and agreements;
(4) revising the contract of association of the shareholding companies and
articles of association thereof, prior to issuing the resolution for granting
permits thereto;
(5) participating in the preparation and drafting of the standard local
contracts and agreements, together with the organs concerned, which
concerns each organ separately and the amount of which exceeds case
law as well as the laws in force through the jurisdiction of the Minister
or the Head of the said organ in accordance with the provisions of the
State.
6.7 Formation of Tourism Police
in connection with the Establishment of the General Department of the
Tourism Police, as part of the Ministry of Interior, with the possibility of
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establishing branches thereof in the Provinces. The Resolution enumerates
the duties and responsibilities of the said Department, as follows:
(1) Keeping order and having regard for the security of the tourists, and
laying down measures essential for the security of the hotel installations
and tourist sites, in cooperation and coordination with the concerned
organs.
(2) Coordination with the other security organs for guarding the tourists
and providing security protection therefore.
(3) Coordination with the concerned organs at the Ministry of Tourism for
executing the duties thereof, with a view to implementing the laws,
regulations and resolutions in force.
(4) Laying down the plans essential for making available the officers and
personnel and equipment, in partnership with the concerned organs.
Preparation and execution of training and qualifying programmes, with
a view to raising the efficiency of the personnel involved therein, in
partnership with the concerned organs.
(5) Execution of any/all tasks entrusted to the Department, as regards
tourism security.
6.8 Formation of Criminal Evidence Department
in connection with the Establishment of a General Department for Criminal
Evidence and Specification of the Responsibilities thereof, as part of the
Ministry of Interior, with the possibility of establishing branches in the
Provinces. The main responsibilities are the following:
(1) Visiting scenes of crimes for technical inspection, and collecting
material(s), examination thereof which lead to evidence; and submitting
reports thereon.
(2) Examining the technical materials collected, which are referred to the
said Department from the relevant agencies: police; prosecution, or
judicial bodies.
(3) Performing the functions of the experts, and rendering the technical
assistance required by the police; prosecution, or judicial bodies.
(4) Recording and photographing and safe-keeping of the criminal
evidence, as well as safe-keeping of the examinations and technical
reports connected with the crimes and incidents.
(5) Taking photographs of the convicted persons and those sent out of the
country, the bodies of dead persons whose identities are unknown as
well as the classification and safe-keeping thereof.
(6) Receiving, recording and safe-keeping of criminal judgments as well as
past criminal convictions, in accordance with the Law; and issuing
certificates as regards the criminal circumstances to citizens who apply
for such certificates.
(7) Following up the academic and scientific research, as well as the modern
equipment and instruments connected with criminal evidence.
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(8) Preparing research studies with a view to developing methods connected
with the technical discovery of crimes.
7 COMMERCIAL AND INVESTMENT LAWS
7.1 Money laundering
The President of the Republic promulgated the Money Laundering Law No.
35/2003, consisting of 24 sections, in 8 parts, as follows:
Part one: Title and definitions.
Part two: Money laundering crimes.
Part three: Obligations of the financial institutions.
Part four: Committee for combating money laundering, as well as a data
collection unit.
Part five: International cooperation; exchange of information and
extradition of non-Yemeni offenders.
Part six: Investigation and trial procedures.
Part seven: Penalties.
Part eight: Concluding provisions.
7.2. Suspension of the General Sales Tax Law (10/2001)
Due to complications as regards the implementation of the provisions of the
Sales Tax Law No. 19/2001, as well as strong protests and numerous complaints
by the business community, the President of the Republic, following the
approval of Parliament, promulgated Law No. 36/2002 which amends section
70 of Law No. 19/2001, as follows:
The provisions of Law No. 19/2001 shall come into force with effect from 1 January
2004; and the provisions of Law No. 70/1991 and amendments thereof shall continue
to be implemented.
It is worthwhile mentioning, however, that Law No. 19/2001 was supposed to
be implemented on 1 September 2002 (see this Yearbook, Vol. 8).
7.3 New Investments Law
The President of the Republic promulgated the Investments Law No. 22/
2002, made up of 76 sections, in 10 chapters, as follows:
(1) Principle provisions: objectives; definitions and application, which shall
not be inconsistent with Islamic sharia, and which shall exclude the
following sectors:
(a) oil and mineral resources: for these are subject to special
agreements;
(b) arms and explosives production;
(c) industries which are detrimental to or which cause damage to
the environment and health;
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334
(d) banks and banking transactions; and
(e) the trading in property, imports, wholesale and retail business.
(2) Guarantees and concessions granted to projects: equal rights and
obligations as regards Yemeni, Arab and foreign investors; right to
trade in the products thereof within the country or to export them;
right to transfer the funds thereof abroad; right to purchase or rent
property in rem from the State or the private sector.
(3) Customs and taxes exemptions; encouragement of local products and
exports.
(4) The General Corporation for Investments and the Board of Directors
thereof: which consists of the following:
(a) the Prime Minister/Chairman;
(b) the Deputy Prime Minister/Vice Chairman;
(c) the Director of the Corporation/Company Secretary;
(d) Ministers of Foreign Affairs, Industry and Trade, Oil and
Minerals, Planning and Development, Finance, and Governor
of the Yemeni Central Bank/Members; as well as the Minister
or Deputy Minister of the sector concerned with the investment
project, the Chairman of the Confederation of the Commerce
and Industry Chambers, the President of the Corporation, and
ordinary Members.
(5) Rules regarding the registration and exemptions of projects.
(6) Administrative protests, and settlement thereof.
(7) Investment companies investments disputes.
(8) Obligations of investors and owners of projects as well as violations
and penalties.
(9) Transitional provisions.
(10) General provisions: especially in relation to the issuing of the Executive
Regulations of the Law within a maximum period of 90 days.
This Law consolidates all pieces of legislation in this respect which are as a
result of the promulgation of the present Law repealed. These are Laws Nos.
18/1975 (enacted in Sanaa before reunification); Law No. 5/1990 (enacted
in Aden before reunification); Law No. 22/1991; Law No. 14/1995 and Law
No. 29/1997 (enacted after reunification).
7.4 New Mines and Quarries Law
The President of the Republic promulgated the Mines and Quarries Law No.
24/2002. The Law is made up of 56 sections in 6 chapters, as follows:
(1) Title and definitions; State ownership.
(2) Mines and quarries.
(3) Utilisation of minerals and rocks.
(4) Joint provisions.
(5) Penalties.
(6) Concluding provisions.
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This Law replaces Law No. 50/1991, on the same subject matter, but which
was issued shortly after reunification by a Resolution of the President of the
Republic.
7.5 Marine Supervision Regulations
The Prime Minister issued Resolution No. 208/2003, in connection with the
aforementioned subject, consisting of 35 sections, in 5 parts, as follows:
Part one: Title, definitions and territory of application.
Part two: The fishing zones (three in number) of the Republic, for the
purpose of the Regulations are the Red Sea; the Gulf of Aden; and the
Arabian Sea. The berth areas for the industrial/commercial ships are as
under: Al-Hudaidah (As-Saleef Harbour) for the Red Sea boats; Aden
(the Fishing Harbour) for the Gulf of Aden Zone boats; and Al-Mukalla
(Khalf Harbour) for the Arabian Sea boats.
Part three: The components of the marine supervision and duties as well
as responsibilities thereof.
Part four: Violations of the Regulations provisions, and fines imposed
therefore there is a list of 22 violations and the fines to be imposed for
each one.
7.6 Amendment of Central Bank Law
paragraph 1 of section 2 of the Yemeni Central Bank Law No. 14/2001.
According to the amendment, the Central Banks Board of Directors shall be
composed of seven members (instead of six, as existed prior to the
amendment) as follows:
(1) the Governor of the Central Bank, the Chairman of the Board;
(2) the Deputy-Governor, Vice-Chairman of the Board;
(3) a representative of the Ministry of Finance (instead of the Vice-Minister
of Finance, as in the paragraph prior to the amendment);
(4) four other members (this is now extremely flexible).
8 ENVIRONMENTAL LAW
8.1 Water Law
The President of the Republic promulgated the Water Law No. 33/2002, the
first ever in the Republic of Yemen (with technical assistance from the World
Bank and UNDP, as well as financial and technical support from the Donor
States, especially the European Union).
The Law consists of 82 sections, in 9 parts/chapters, as follows:
(i) Title and definitions.
(ii) Objectives and general provisions.
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(iii) Registration, management and planning of water resources.
(iv) Utilisation of water.
(v) Rights and licences for water.
(vi) Preservation of water and protection thereof from pollution.
(vii) Protection of rainfall.
(viii) Safeguards and penalties.
(ix) General and concluding provisions.
8.2. Ministry of Water and Environment
The Republic of Yemen witnessed its third parliamentary general elections
based on the multi-party system and universal suffrage since the reunification
of the former two sectors in May 1990 on 27 April 2003. A new government
was formed, after the declaration of the results of the elections and the
convening of the new Parliament announced by Republican Resolution No.
105/2003, issued on 17 May 2003. One of the new Ministries to be included is
the Ministry of Water and Environment: the first time ever in the Republic of
Yemen to have such a Ministry with a Minister in charge of it.
9 INTELLECTUAL PROPERTY LAW
9.1 Trade Mark Law
The President of the Republic promulgated the Trade Mark Law No. 20/
2003, consisting of 28 sections, in 4 parts and each part divided into chapters
as follows: title and definitions; the trade mark of the individual trader and of
the trading company the registration of the trade mark, protection and disposal
thereof; penalties and concluding provisions.
It is worth mentioning that the Law provides for the application of its
provisions to all legal persons, whether they are individuals or bodies corporate;
and the law courts have been given jurisdiction to hear and determine any
disputes arising out of the implementation of the provisions of the Law. The
Law, too, states that all those legal persons, whether individuals or bodies
corporate, coming within the ambit of the provisions of the Law should make
their legal regulations consistent with the Laws provisions within a certain
period, the maximum of which shall be 12 months. In addition, the Executive
Regulations of the new Law should be issued within six months. In conclusion,
it should be said that the Minister of Industry and Trade is in charge of the
implementation of the provisions of the new Trade Mark Law.
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10 SOCIAL, EDUCATION, COMMUNITY RELATIONS
AND CULTURAL LAWS
10.1 The Scholarship Law
The President of the Republic promulgated the Scholarship Law No. 19/
2003, consisting of 65 sections, in 7 parts, as follows:
(1) Title and definitions.
(2) Classification of the scholarship and objectives thereof.
(3) The application of the provisions of the Law is confined to students
who are not employees; the teaching staff of the universities and higher
institutes as well as those involved in research at research centres; and
the employees of the administrative units in the various fields.
(4) A Supreme Committee shall be set up called the Supreme Committee
for Scholarships under the chairmanship of the Minister of Higher
Education and Scientific Research, with responsibility to provide the
requirements of the development plans in this respect. There are
also provisions for two executive committees to assist the Supreme
Committee.
(5) Rules and procedures for planning and regulating the scholarships, in
order to gain the best utiliation therefrom.
(6) Conditions and procedures for the nomination and granting of
scholarships.
(7) The obligations of those awarded scholarships, and the prohibitions
binding them.
(8) The rights, concessions as well as privileges, and penalties.
(9) General and conclusion provisions.
10.2 Small loans
The President of the Republic promulgated Law No.23/2002, in connection
with Establishment of the Amal (Hope) Bank for Small Loans with assistance
from the Arabian Gulf Programme for Supporting the United Nations
Development Projects (which shall be represented by three members on the
Board of Directors of the Bank).
10.3 Posts and salaries of teaching staff
The Prime Minister issued Resolution No. 823/2002, regarding the posts and
salaries of teaching staff and teaching aides in State Community Colleges,
summarised as follows:
(1) Professor; Joint-Professor; Reader; Teacher.
(2) Rights and obligations of the teaching staff and teaching aides.
(3) The provisions of the Scholarship Law plus the Executive Regulations
thereof and of the Civil Service Law and Executive Regulations thereof,
in addition to the rules and regulations in force in the country as regards
medical treatment as well as retirement as applicable to teaching staff
and teaching aides.
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10.4 The Infrastructure Utilities Regulations
The Prime Minister issued Resolution No. 939/2000, regarding the
Infrastructure Utilities Regulations applicable to roads (which includes streets
and squares); electricity and telephones, radio and television; water and sewage:
connections and extensions.
The Resolution sets up a Joint (Coordination) Committee with the Ministries
of Electricity and Water; Communications; Interior; Defence; Oil and Mineral
Resources; Information; and Works and Urban Development.
The Resolution sets out the aims and objectives of the Regulations:
preserving the paved roads and streets; preserving and protecting the
infrastructure; realising coordination among the bodies concerned during
the preparation of the plans relating to roads as well as to the other
infrastructure utilities and the execution thereof; focus with a view to raising
their operating efficiency and economising costs thereof. The Ministry of Works
and Urban Development is in charge of the implementation, and the Armed
and Security Forces are responsible for the protection of the workers of the
Infrastructure bodies concerned.
10.5 Maritime control in the Republic of Yemen
The Minister of Transport and Marine Affairs issued Ministerial Resolution
No. 22/2002, in connection with maritime control according to which the
following organisations have been specified, to the exclusion of any others,
for the purpose of certificates and reports regarding the specifications/
classifications of vessels:
(1) American Bureau of Shipping (American).
(2) Bureau Veritas (French).
(3) Lloyds Register of Shipping (English).
(4) Germanisherfloyd (German).
(5) Registro Italiano Navale (Italian).
(6) Det Norske Veritas (Norwagian).
(7) Russian Maritime Register of Shipping (Russian).
(8) Nippon Kaiji Kyokai (Japanese).
10.6 Immigrants Care Law
with immigrants care, consisting of 25 sections, in 6 chapters, as follows:
(1) Title, definitions and objectives.
(2) Care of immigrants within the country, and care of immigrants abroad.
(3) Rights and obligations of immigrants.
(4) Concessions/privileges granted to immigrants.
(5) The General Confederation of Immigrants.
(6) General provisions.
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It is worth while mentioning that this is the first law ever to be passed in the
Republic of Yemen, since reunification, on the question of Yemeni immigrants
whose number is estimated at 10 million throughout the world and constitutes
an implementation of the Constitution.
10.7 Trades union legislation
The President of the Republic on 31 August 2002 promulgated Law No. 35/
2002, in connection with trades union legislation, consisting of 76 sections, in
5 chapters, as follows:
(1) Title, definitions, aims/objectives and general principles: the Law does
not apply or govern the non-government organisations; cooperatives;
professional unions governed by their own laws such as lawyers, doctors,
accountants; the Armed and Security Forces; civil servants in the higher
authorities of the State as well as the Ministries main headquarters.
(2) Organisation of trades unions: trades union committees; trades union
branches; confederation branches; general trades union; trades unions
confederation; functions, duties and responsibilities of the Trades
Unions Confederation.
(3) Rights and obligations of trades unions: the rights include the right to
join; meetings without prior permission; participation in drafting
legislation; regulation of peaceful strikes; participation in dispute
resolution/settlement between employers and employees; and the
obligations include preservation of trades union assets; participation in
supporting union activities; payment of monthly subscription regularly;
participation as regards the comprehensive development process.
(4) Financial resources and assets of the union: membership fees;
subscription fees; grants from the State; unconditional donations and
grants; amounts allocated for social activities at the institutions under
the union; the proceeds of the investments of the assets of the union;
the proceeds of the festivals and publications of the union; any other
sources or proceeds which are not inconsistent with this Laws provisions,
Executive Regulations thereof and the Laws in force.
(5) Penalties and concluding provisions.
It can be noted that this is the first ever piece of legislation concerning trades
unions to be passed in the Republic of Yemen, since reunification on 22 May
1990; and the subject comes within the right of association, provided for in
the Constitution.
10.8 Land transport law
with land transport, consisting of 84 sections, in 5 parts, as follows:
(1) Title, definitions and objectives, which aim at regulating transport of
persons and goods; encouraging investments in land transport; putting
an end to monopoly, and developing the land transport activities on a
free as well as a competitive basis.
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(2) Basis and rules regulating land transport.
(3) Transport contracts: transport of persons; transport of luggage; transport
of goods; transport commission agents.
(4) Penalties.
(5) General and concluding provisions.
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Iran
M. A. Ansari-Pour *
Several legal developments occurred in Iran during the period covered by
this survey (i.e. 21 March 2002 to 20 March 2003).
1
The main protagonist for
these developments was Parliament. The majority of bills presented to
Parliament were members bills, presented under Article 74 of the
Constitution,
2
rather than being government bills. The most important
developments in this period are as follows.
1 LEGAL SYSTEM
The Establishment of the General and Revolution Courts Act 1994 (hereinafter
cited as the EGRCA)
3
was amended by Parliament in 2002. The EGRCA
abolished the institution of parquet, which had been borrowed from the French
legal system. The law governing the parquet before its abolition was the Criminal
Procedure Code of 1911.
The main reason for the abolition of the parquet and establishment of general
courts was to facilitate a direct contact with the judges and to speed up
the judicial proceedings. The judicial system was wholly shaken up by the
EGRCA.
The new system, however, caused several problems. For example, the courts
were overloaded with a large number of cases that could have been settled
before reaching the courts. Secondly, since the courts had no time to deal
with investigations, they referred the main part of the investigations to the
police. Thirdly, under the former system, the judges had to work initially in
the parquet and when they were appointed as judges in the courts they had a
* LLB, LLM, PhD; Formerly Iranian Judge; Lawyer and Legal Advisor to the Judiciary.
1 I.e. 1381 according to the Iranian calendar.
2 Article 74, inter alia, states: Members bills may be presented to the Islamic Consultative
Assembly if sponsored by at least fifteen members.
3 See the text of the EGRCA in MQ (MQ means: the Collection of Laws and hereinafter referred
to as MQ), 1373, pp. 309-317; RR (RR means: the Official Gazette and hereinafter referred
to as RR), No. 14383-3.5.1373. See also Vol. 1 of this Yearbook, pp. 392-395.
342
considerable amount of experience. But under the new system they had no
such experience and consequently their decisions were not as solid and as
well reasoned as before. Fourthly, the shortening of judicial proceedings in
fact did not materialise. In short, the new system did not satisfy the objectives
for which it was established. So the judiciary presented a bill to Parliament for
the amendment of the EGRCA.
4
The EGRCA was amended in 2002 as a result of which Articles 3-4, 8, 10, 12-
15, 18, 20-22, 26 and 38 of the Act were amended and one Article as Article 39
was added. The amendment revived and reintroduced the parquet into the
legal system.
5
As a result of this development, the structure of the judiciary
was totally reshaped.
6
Under the new text of Article 3 of the EGRCA, in the jurisdiction of each
city a parquet will be established to work alongside the courts of that jurisdiction.
In addition, the organisation, limits of competence, duties and powers of the
parquet, called the General and Revolution parquet, until the adoption of the
relevant procedure, will be governed by the General and Revolution Courts
Code: Book 2, 1999 and the provisions of the EGRCA.
Following the amendment of the EGRCA, the Head of the judiciary
amended the executive regulations of the EGRCA in order to meet the new
changes.
7
2 CIVIL LAW: FAMILY LAW
Since the Islamic revolution in 1979 the government, contrary to what some
critics argue, has followed a policy of developing womens rights (especially in
the field of family law) on the basis of Islamic legal principles. The amendments
made to some provisions of the Civil Code (hereinafter cited as the CC) during
the period covered by this survey is the evidence of this policy.
2.1 Age of Marriage
Article 1041 of the CC was amended by Parliament in late 2000 but since the
bill was rejected by the Council of Guardians (hereinafter cited as the CG) it
was sent to the Council for Determining the Expediency of the State
(hereinafter cited as the CDES), as required by Article 112 of the Constitution.
The CDES, following some changes in the wording of the bill, ratified it in
2002.
8
4 Mashruh-i Mudhakarat-i Majlis-i Shura-yi Islami (hereinafter referred to as MMMSI), Session
124-20.4.1380, in RR, No. 16428; MMMSI, Session 162-30.8.1380, in RR, No. 16533.
5 MQ, 1381, pp. 1046-1056; RR, No. 16823-7.9.1381.
6 This issue was referred to by several members of Parliament when they were dealing with the
bill. MMMSI, Session 164-4.9.1380, in RR, No. 16539; MMMSI, Session 216-3.2.1381, in RR,
No. 16659.
7 MQ, 1381, pp. 1266-1273; RR, No. 16880-15.11.1381.
8 MQ, 1381, pp. 432-433; RR, No. 16713-26.4.1381.
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343
Article 1041 formerly stated that: marriage before the age of majority is
prohibited. This Article had a tabsirah (which can be translated as a Note or
sub-Article). It stated that: the contract of marriage before the age of majority
with the permission of the guardian is valid, provided that the interest[s] of
the ward has been taken into account. This ruling, which applied to both
boys and girls, originated from Islamic law.
9
The new text states that:
Marriage of a girl before reaching the age of 13 solar years and of a boy before
reaching the age of 15 solar years is dependent on the permission of the guardian
provided that the interest[s] of the ward, which is to be established by the competent
court, has been taken into account.
Under the new text:
(a) marriage before 13 for girls and before 15 for boys is dependent on the
permission of the guardian;
(b) the age is based on the solar year rather than lunar year;
(c) marriage before the above ages is dependent on the observance of the
interest of the ward; and
(d) such an interest needs to be established by the competent court, not by
the guardian.
The main reason for the amendment, according to the Parliamentary
proceedings, was that giving the guardian the authority to decide about the
marriage of his ward might result in the misuse of such a power, as in some
tribes of Iran some guardians misused this power and preferred their own
interest to the interest of their wards. It was argued that women who were
married when they were minors and their guardians decided for them had
filed many divorce petitions.
10
2.2 Maintenance
Two Articles of the CC, i.e. Articles 1107 and 1110 dealing with the maintenance
of a married woman, were amended by Parliament in 2002.
11
(1) Article 1107 of the CC formerly stated:
Maintenance consists of dwelling, clothing, food and furniture which is customarily
in proportion to the state of the wife, and a servant if the wife is accustomed to
having a servant or if she needs one because of illness or disability.
9 Shahid II (Z. Jubai al-Amili), Al-Rawdat al-Bahiyyah, vol. 5, Beirut, no date, p. 116; R.M.
Khomeini, Tahrir al-Wasilah, vol. 2, 2nd edn., Qom, no date, pp. 254-256.
10 MMMSI, Session 19-19.5.1379, in RR, No. 16165; MMMSI, Session 40-8.8.1379, in RR, No.
16230; MMMSI, Session 58-27.9.1379, in RR, No. 16271.
11 MQ, 1381, p. 1079; RR, No. 16834-20.9.1381.
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344
Article 1107 now states that:
Maintenance consists of all the customary needs and in proportion to the state of
the wife, such as accommodation, clothing, food, furniture of home, treatment and
sanitary expenses and a servant if [she is] accustomed [to having a servant] or needing
[a servant] because of disability or illness.
The new version is more comprehensive, it satisfies the needs of women better
and it is closer to the spirit of Islamic law.
12
According to the parliamentary
proceedings, the inclusion of sanitary expenses in the definition of
maintenance was the main reason for the amendment of this provision.
13
(2) Article 1110 of the CC formerly stated: the wife is not entitled to
maintenance during the iddah period following the death [of her husband].
14
Article 1110 now states:
During the iddah period for the death [of the husband], the living expenses of the
wife, following her demand, will be paid (in case of non-payment) from the property
of the relatives who are under an obligation to pay [her] maintenance.
If a widow was in need and could not support herself during the iddah period
following the death of her husband, the law was silent in this regard. According
to the parliamentary proceedings, this amendment was made in order to
support her by providing that her maintenance has to be paid by those relatives
who have an obligation in this regard.
15
2.3 Divorce
Two Articles of the CC dealing with divorce law were amended, as a result of
which two major developments occurred in this area.
(i) Judicial divorce reaffirmed
Article 1133 of the CC, which formerly stated: A man can divorce his wife
whenever he may wish to do so, was amended by Parliament in 2002. The
general wording of this Article was not compatible with the Islamic procedure
for divorce because, in addition to certain requisites for divorce mentioned in
the CC itself,
16
it did not refer to the issue of arbitration in family disputes
12 Khomeini, Tahrir al-Wasilah, vol. 2, pp. 315-319.
13 MMMSI, Session 243-3.6.1381, in RR, No. 16756.
14 Article 1150 of the CC defines iddah as a period before the expiry of which a woman whose
marriage has been dissolved cannot marry another. For the concept of iddah under Islamic
law, see Y.L. De Bellefonds, Idda, in The Encyclopedia of Islam, new edn., vol. 3, 1971, pp.
1010- 1013; J.J. Nasir, The Islamic Law of Personal Status, 2nd edn., London, 1990, pp. 146-155;
J.J. Nasir, The Status of Women under Islamic Law and Modern Legislation, 2nd edn., London,
1994, pp. 107-114.
15 MMMSI, Session 243-3.6.1381, in RR, No. 16756.
16 For example, see Articles 1134-1135 and 1140-1142.
Country Surveys
345
which is a mandatory procedure before the execution of divorce under Islamic
law.
17
Although this Article had been qualified by several statutes, including the
Family Protection Act 1967,
18
Family Protection Act 1975,
19
Legal Bill of the
Special Civil Court 1979
20
and Amendment of Divorce Provisions Act 1992,
21
and consequently a man could not divorce his wife without judicial proceedings,
it was always used incorrectly by the critics as a provision that would give men
an unqualified and unrestricted power to divorce their wives whenever they
wished to do so.
Article 1133 now states: A man can, by observing the conditions stated in
this Code, go to the court and ask for the divorce of his wife. In other words,
no man can divorce his wife without judicial proceedings.
One Note (tabsirah) was also added to the above Article. It states: A woman
can also, where the conditions stated in Articles 1119, 1129 and 1130 of this
Code exist, petition the court for divorce.
This new provision treats women on an equal footing with men in respect
of petitioning for divorce.
(ii) Hardship
Article 1130 of the CC was amended during the course of the amendment to
the CC. As a result of that a concept known as usr and haraj (both terms can
be translated as hardship), which is a rule of Islamic law and according to
which a woman can ask for divorce, was included in the divorce law.
22
This Article states:
If the continuation of marriage causes usr and haraj to the wife, she can go to the
court and ask for divorce. If the aforesaid usr and haraj is established in the court,
the court can compel the husband to divorce [his wife], and if the compelling [of
the husband] is impracticable the wife will be divorced by the permission of the
court.
The generality of this provision caused several problems. For example, some
courts accepted the petition for divorce on the basis of hardship quite easily
and ruled for divorce while others hardly accepted the petition and refrained
from ruling on it, even where the petitioners were under great hardship. In
addition, the courts made different interpretations and gave conflicting
judgments in this regard. So a bill was drawn up, with the agreement of the
judiciary, to clarify the concept of hardship, to offer some examples for it and
17 See Shahid II (Z. Jubai al-Amili), Masalik al-Afham, vol. 1, Qom, no date, p. 572.
18 For the Persian and English text of this Act, see (1967) 6 Islamic Studies, pp. 250-253 and 256-
261 respectively.
19 RR, No. 8785-12.12.1353; MQ, 1353, pp. 302-310.
20 RR, No. 10088-19.7.1358; MQ, 1358, pp. 180-182.
21 RR, No. 13914-19.9.1371; MQ, 1371, pp. 490-492.
22 See the text of the amendment of the CC in MQ, 1370, pp. 523-530, especially at p. 526.
Iran
346
to create, as much as possible, a uniformity among the judicial decisions.
23
So in 2000, Parliament added one Note to the above Article. Since the CG
did not ratify the Note, after some changes in the wording of the Note, it was
ratified by the CDES in 2002 under Article 112 of the Constitution. This Note
definesusr and haraj and states that it consists of:
. . . the occurrence of a situation that makes the continuation of marital life hard for
the wife and tolerance of such a situation is difficult [for the wife]. The following
cases, if established by the competent court, will be considered to be examples of
usr and haraj.
Then five specific examples are listed for the establishment of hardship:
24
(1) Desertion of family life by the husband for at least six consecutive or
nine intermittent months in a year without any justified excuse.
(2) Addiction of the husband to one of the types of narcotic drugs, or his
affliction with alcoholic drinks that harms the foundation of family life
and he refuses, or it is impossible to force him, to give it up in a period
which, according to the finding of a physician, is necessary for giving
up the addiction.
If the husband does not keep his promise and/or after giving up
[the addition], he starts using the mentioned drugs again, following
the petition of the wife, divorce will be executed.
(3) Conviction of the husband to five years imprisonment or more.
(4) Beating and insulting [of the wife] or any kind of continuous
maltreatment by the husband which, according to custom [and] by
taking into account the state of the wife, is intolerable.
(5) Affliction of the husband with incurable diseases: mental or contagious,
or any other incurable illness that deranges the shared life.
The last part of this Note states that:
The cases inserted in this Article do not prevent the court from ruling for divorce in
other cases wher usr and haraj for the wife is established in the court.
Although giving certain examples for the establishment of hardship is useful,
hardship is a concept the establishment of which differs from one person to
another. Something that may be intolerable for one woman may be tolerable
for another one. Therefore it would be much better to leave the establishment
of hardship with the court.
3 CRIMINAL LAW
Article 570 of the Islamic Penal Code was amended by Parliament in early
2003.
25
23 MMMSI, Session 379-18.2.1379, in RR, No. 16087. See also MMMSI, Session 12-19.4.1379, in
RR, No. 16135.
24 MQ, 1381, pp. 763-764; RR, No. 16768-31.6.1381.
25 MQ, 1381, p. 1280, RR, No. 16883-19.11.1381.
Country Surveys
347
Article 570 formerly stated that:
[If] any of the government authorities and officials, contrary to law, denies the
members of the nation their private freedom, or deprives them of the rights stated
in the Constitution, in addition to dismissal and being deprived of government posts
from three up to five years, he will be sentenced to from six months up to three
years imprisonment.
26
Article 570 now states that:
[If] any of the authorities and officials of government institutions and establishments,
contrary to law, denies the members of the nation their private freedom, or deprives
them of the rights stated in the Constitution of the Islamic Republic of Iran, in
addition to dismissal and being deprived of government posts from one up to five
years, he will be sentenced to from two months up to three years imprisonment.
The main difference between the former text and the new one is that the
latter reduces the minimum period of being deprived of government posts to
one year and of imprisonment to two months.
4 CRIMINAL PROCEDURE
One of the major statutes adopted in 1999 was a new code of criminal
procedure (i.e. the Procedure of General and Revolution Courts Code: Book
2).
27
It was adopted on an experimental basis for three years. Parliament in
2002 extended the experimental implementation of this code for another
year.
28
The implementation of the Punishment of the Crimes of Armed Forces
Act, which was adopted in 1992 on an experimental basis for five years,
29
and
again in 1997 for five more years
30
was extended by Parliament for another
year in late 2002.
31
5 CHILD LAW
Parliament in 2002 passed a law entitled the Protection of Children and Youth
Act.
32
According to the parliamentary proceedings, there was no special law
to protect children against any abuse. This lacuna plus the existence of Islamic
legal protection for children and the membership of Iran to the Convention
on the Rights of the Child necessitated the adoption of this law.
33
26 See the text in MQ, 1375, p. 173; RR, No. 14943-4.4.1375.
27 See Vol. 6 of this Yearbook, pp. 335-336.
28 MQ, 1381, pp. 1026-1027; RR, No. 16817-29.8.1381.
29 MQ, 1371, pp. 291-312; RR, No. 13848-2.7.1371.
30 MQ, 1376, pp. 682-683; RR, No. 15370-9.9.1376.
31 MQ, 1381, p. 1173; RR, No. 16857-18.10.1381.
32 MQ, 1381, pp. 1249-1250; RR, No. 16875-9.11.1381.
33 For example, see MMMSI, Session 230-22.3.1381, in RR, No. 16692.
Iran
348
It consists of nine Articles. The key provisions are as follows:
Under Article 1, all persons who have not reached the age of 18 will
benefit from the legal protections stated in this law.
According to Article 2, all kinds of molestation and tormenting of children
and youth which harm them physically, or mentally, or morally and
endanger their physical or mental health are forbidden.
Article 3 refers to the prohibition of different kinds of trade of children
and their exploitation for illegal purposes. In addition to paying
compensation, imprisonment plus financial penalties have been fixed
for the perpetrators.
In accordance with Article 4, all kinds of harm, molestation, tormenting,
physical and mental torture of children, deliberate neglect of their health
and their mental and physical sanitation and preventing them from
education have been forbidden, for which imprisonment and fine have
been fixed.
Under Article 5, harming children is a crime and, as other crimes, can
be dealt with by the court without being dependent on a private
prosecution.
This is the first comprehensive law that has been adopted in Iran to protect
the interests of children and youth, especially in the matter of education.
6 FOREIGN INVESTMENT
In 2002, Parliament adopted a very important piece of legislation regarding
foreign investment. Since the adoption of the Attraction and Protection of
Foreign Capitals Act 1334 (1955), no major statutory development had
occurred in this regard. According to the parliamentary proceedings, this
new law was adopted for the following purposes:
(1) to facilitate and to provide a suitable and desirable environment for
foreign investment, and to offer legal protection to foreign investors;
and
(2) to meet national need to investment, to secure necessary capital for
economic growth and promotion of technology and to create jobs.
34
The new law, which is entitled the Encouragement and Protection of Foreign
Investment Act (hereinafter cited as the EPFIA),
35
consists of 25 Articles
divided into 7 chapters.
The first chapter defines terms and expressions used in the EPFIA (Article
1). The second chapter deals with the general conditions for the acceptance
of foreign capital (Articles 2-4). The third chapter includes the competent
authorities that deal with foreign investment (Articles 5-7). The fourth chapter
deals with the guarantee and transfer of foreign capital (Articles 8-10). The
fifth chapter considers the regulations for the acceptance, flow and repatriation
of foreign capital. The sixth chapter examines the settlement of disputes
34 For the relevant parliamentary proceedings, see, inter alia, MMMSI, Session 154-7.8.1380, in
RR, No. 16517, MMMSI, Session 187-2.11.1380, in RR, No. 16601.
35 MQ, 1381, pp. 372-379; RR, No. 16709-22.4.1381.
Country Surveys
349
between the Iranian government and foreign investors (Article 19). The last
chapter deals with final provisions (Articles 20-25).
Under Article 24, from the date of the adoption of the EPFIA, the Attraction
and Protection of Foreign Capital Act 1334 (1955) and its executive regulations
were to be repealed.
The executive regulations of the EPFIA, as required by Article 25 of the
Act, was approved by the Council of Ministers.
36
It consists of 38 Articles divided
into 7 chapters. The first chapter deals with the definition of terms and
expressions; the second with the methods and rules for the acceptance of
foreign investment; the third includes the procedure for the acceptance of
foreign investment; the fourth creates a centre for giving services to foreign
investment; the fifth considers the regulations on foreign capital flows,
assessment and registration of foreign capital; the sixth examines the
regulations on the repatriation of the capital and its profits; and the last includes
general provisions.
7 JUDICIAL COOPERATION AND EXTRADITION
Parliament ratified a bilateral agreement between Iran and Syria in 2002.
37
This agreement deals with judicial cooperation in different areas of law
including civil, commercial, criminal and personal status cases, extradition,
transfer of convicts and settlement of matters relating to a deceased persons
estate.
In addition to the preamble, the agreement consists of 99 Articles divided
into 8 Sections as follows: Section 1: exchange of information and
encouragement of meetings between the judicial authorities of both countries
(Articles 1-3); Section 2: judicial cooperation (Articles 4-39); Section 3:
recognition of arbitration agreements and awards (Articles 40-45); Section 4:
exchange of information regarding criminal records of the accused (Articles
46-47); Section 5: extradition of criminals (Articles 48-63); Section 6: transfer
of convicts to their own country for their term of imprisonment (Articles 64-
87); Section 7: settlement of matters relating to a deceased persons estate
(Articles 88-95); and Section 8: final provisions (Articles 95-99).
Parliament adopted an extradition treaty between Iran and Uzbekistan in
2002.
38
It consists of 19 Articles and, under Article 19, this agreement was
adopted for an unlimited period.
8 CONCLUSION
The most important development during the period covered by this survey is
the reintroduction of the parquet into the legal system. This development
changed the structure of the courts and judicial processes especially in respect
of criminal proceedings. The amended text of Article 3 of the EGRCA rules
for the adoption of a new procedure in order to meet this new development.
36 MQ, 1381, pp. 909-920; RR, No. 16795-4.8.1381.
37 MQ, 1381, pp. 438-458; RR, No. 16713-26.4.1381.
38 MQ, 1381, pp. 1433-1438; RR, No. 16908-21.12.1381.
Iran
350
* Professeur la facult des sciences juridiques, conomique et sociales de Rabat-Agdal.
Universit Mohammed V, Rabat, Maroc.
Morocco
Michle Zirari-Devif *
La production lgislative a t importante ces derniers mois. Du 1
er
juillet
2002 au 30 juin 2003, des textes relativement nombreux ont t publis dans
divers domaines. Certains taient en prparation depuis des annes, cest le
cas notamment des lois sur lenvironnement, de la loi sur les petites et
moyennes entreprises, du code de procdure pnal.
Lanne a t marque par les attentats terroristes du 16 mai 2003,
Casablanca. Dans le domaine du droit cela a eu pour effet dacclrer le vote
de la loi antiterroriste qui a t immdiatement promulgue et publie et
dacclrer galement lentre en vigueur du nouveau code de procdure
pnale.
1 LIBERTS PUBLIQUES
1.1 Code des liberts publiques
Une modification du code des liberts publiques, rclame depuis longtemps
par la socit civile, est intervenue en 2002. Le code des liberts publiques est
constitu par trois dahirs du 15 novembre 1958 consacrs respectivement au
droit dassociation, aux rassemblements publics et la presse. Les liberts
reconnues par le code avaient t restreintes en 1973, par des textes qui,
notamment, aggravaient les sanctions prvues pour la violation des
prescriptions lgales. De plus, alors que la constitution des associations, la
tenue dune runion publique et la publication dun priodique ntaient
pas soumises une autorisation mais une simple dclaration, la pratique
administrative tendait transformer cette dclaration en autorisation, en
refusant parfois indfiniment la dlivrance du rcpiss de dclaration, sans
en donner les motifs.
Mais alors que lon esprait llaboration de nouveaux textes mieux adapts
la ralit actuelle, le lgislateur sest content dapporter des modifications
aux trois dahirs de 1958. Ces modifications ont t introduites par trois lois: la
351
1 Promulgue par dahir n 1-02-206 du 23 juillet 2002 (12 joumada I 1423), Bulletin officiel du
17 octobre 2002, p. 1062.
17 octobre 2002, p. 1060.
3 Promulgue par dahir n1-02-207 du 3 octobre 2002 (25 rejeb 1423), Bulletin officiel du 6
fvrier 2003, p. 131.
4 Dahir n 1-02-212 du 31 aot 2002 (22 joumada II 1423), Bulletin officiel du 5 septembre 2002,
p. 929.
loi n 75-00 modifiant et compltant le dahir n 1-58-376 du 15 novembre
1958 rglementant le droit dassociation,
1
la loi n 76-00 modifiant et
compltant le dahir n 1-58-377 du 15 novembre 1958 relatif aux rassemble-
ments publics
2
et la loi n 77-00 modifiant et compltant le dahir n 1-58-378
du 15 novembre 1958 formant code de la presse et de ldition.
3
Les
modifications consistent essentiellement dans:
la rduction des sanctions prvues en cas de non respect des dispositions
lgislatives;
linstauration de mesures de nature obliger ladministration dlivrer
rcpiss de la dclaration;
en ce qui concerne les associations, laccroissement de leur capacit et
une procdure plus transparente pour leur reconnaissance dutilit
publique;
la diminution des pouvoirs de ladministration au profit du pouvoir
judiciaire, pour les interdictions et les suspensions, et la ncessit pour
ladministration de motiver ses dcisions pour permettre un recours aux
intresss ;
dans le code de la presse, linsertion dune nouvelle disposition pnale
sanctionnant lincitation la discrimination, la haine et la violence en
raison de la race, de lorigine, de la couleur ou de lappartenance ethnique
ou religieuse, commise par la voie de la presse ou par tout autre moyen
(article 39 bis).
1.2 Haute autorit audiovisuelle
Toujours dans le domaine des liberts, le 31 aot 2002 est cre la Haute
autorit audiovisuelle.
4
Bien que les droits individuels et collectifs numrs
au titre premier de la Constitution (parmi lesquelles figure la libert
dexpression sous toutes ses formes), soient du domaine de la loi (article 46
de la Constitution), cette cration a eu lieu par dahir.
La Haute autorit est compose dun conseil suprieur de la communication
audiovisuelle et dune direction gnrale de la communication audiovisuelle.
Le conseil suprieur est charg notamment de donner son avis au Roi, au
gouvernement et au parlement sur toutes les questions concernant
laudiovisuel, de veiller au respect de la rglementation, de lexpression
pluraliste des courants de pense et dopinion. Le conseil peut recevoir des
plaintes des organisations politiques, syndicales et des associations. Il instruit
ces plaintes, et leur donne la suite requise.
Morocco
352
5 Dcret loi n 2-02-663 du 10 septembre 2002 (2 rejeb 1423) Bulletin officiel du 19 septembre
2002, p. 1005. Ce dcret loi a t approuv par une loi n 62-02 promulgue par dahir n 1-03-
22 du 24 mars 2003 (20 moharrem 1424), Bulletin officiel du 3 avril 2003, p. 257. Larticle 55 de
la Constitution prvoit que le gouvernement peut prendre, dans lintervalle des sessions
parlementaires, avec laccord des commissions concernes des deux chambres, des dcrets-
lois qui doivent tre, au cours de la session ordinaire suivante du Parlement, soumis la
ratification de celui-ci.
6 Promulgue par dahir n 1-02-124 du 13 juin 2002 (1er rabi II 1423), Bulletin officiel du 15
aot 2002, p. 785.
7 Voir Yearbook, Vol. 3, 1996, p. 3548
Le conseil est compos dun prsident et de neuf membres: le prsident et
quatre membres sont nomms par le Roi, deux membres sont nomms par le
Premier ministre, un par le prsident de la chambre des conseillers et un par
le prsident de la chambre des reprsentants.
La direction gnrale de la communication audiovisuelle regroupe les
services administratifs et techniques ncessaires au fonctionnement de la Haute
autorit.
1.3 Suppression du monopole de lEtat en matire de radiodiffusion et de
tlvision
Concernant galement laudiovisuel, le 10 septembre 2002, un dcret loi
prvoit la suppression du monopole de lEtat en matire de radiodiffusion et
de tlvision.
5
2 ORGANISATION JUDICIAIRE
On relve un texte important sous cette rubrique: la loi formant code des
juridictions financires. On mentionnera galement une loi rorganisant
ltablissement charg de la formation des magistrats.
2.1 Loi n 62-99 formant code des juridictions financires
6
La constitution de 1992 a t rvise en 1996.
7
Entre autres modifications, la
rvision de 1996 a introduit un nouveau titre consacr la Cour des comptes
et aux cours rgionales des comptes dont les attributions et le fonctionnement
relvent du domaine de la loi. Cette loi est promulgue et publie en 2002,
cest la loi n 62-99 formant code des juridictions financires. Cette loi
rorganise la Cour des comptes, soumise jusque l au texte de 1979 qui lavait
institue, cre les cours rgionales des comptes, et fixe le statut des magistrats
de ces cours.
La loi comprend trois livres: le premier est consacr la Cour des comptes.
II en dfinit les attributions: elle est charge dassurer le contrle suprieur
de lexcution des lois de finances, de sassurer de la rgularit des oprations
de recettes et de dpenses des organismes soumis son contrle en vertu de
Country Surveys
353
8 Dcret n 2-02-701, Bulletin officiel du 6 fvrier 2003, p. 138.
novembre 2002, p. 1380.
10 Voir Yearbook, Vol. 8, p. 292 et s.
11 Il sagit de trois dcret n 2-01-2824, 2-01-2825 et 2-01-2826 du 17 juillet 2002 concernant
respectivement les experts, les copistes et les traducteurs, Bulletin officiel du 15 aot 2008,
p. 823 et s.
la loi et den apprcier la gestion: elle sanctionne, le cas chant, les
manquements aux rgles qui rgissent lesdites oprations: elle assiste le
parlement et le gouvernement dans les domaines qui relvent de sa
comptence: elle rend compte au Roi de lensemble de ses activits. La loi
fixe ensuite lorganisation, les comptences, les rgles de procdure
concernant la Cour.
Le deuxime livre est consacr aux cours rgionales des comptes. Dans la
limite de leur ressort, les cours rgionales sont charges dassurer le contrle
des comptes et de la gestion des collectivits locales et de leurs groupements.
La loi fixe galement leur organisation, leurs comptences, les rgles de
procdure les concernant.
Le troisime livre concerne les magistrats de la Cour des comptes et des
cours rgionales. Ceux-ci ont un recrutement et un statut qui leur est propre.
Un dcret du 29 janvier 2003 fixe le nombre des cours rgionales des
comptes
8
(au nombre de neuf: Layoune, Agadir, Marrakech, Settat,
Casablanca, Rabat, Fs, Oujda, Tanger).
2.2 Loi n 09-01 relative linstitut suprieur de la magistrature
9
Cette loi transforme linstitut national dtudes judiciaires, tablissement
dpendant du ministre de la justice, en Institut suprieur dtudes judiciaires,
tablissement public dot de la personnalit morale et de lautonomie
financire. Linstitut est charg de la formation des magistrats, des greffiers,
de la formation initiale ou continue pour les auxiliaires de la justice et autres
professions juridiques ainsi que de la ralisation de recherches et dtudes
scientifiques dans le domaine juridique.
2.3 Profession dexperts judiciaires, de traducteurs agrs, et de copistes.
Trois lois concernant les experts judiciaires, les traducteurs agrs, et les
copistes ont t promulgues et publies en 2001.
10
Les textes dapplication
de ces lois sont publis en aot 2002
11
. Ces dcrets fixent les modalits
dapplication des lois (composition et fonctionnement des commissions de
recrutement, pour les experts modalits dinscription au tableau . . .) et
permettent ainsi leur mise en application effective.
Morocco
354
15 aot 2002, p. 882.
novembre 2002, p. 1351. La charte a t modifie par une loi n 01-03 promulgue par dahir
n 1-03-83 du 24 mars 2003 (20 moharrem 1424), Bulletin officiel du 3 avril 2003, p. 244. Les
dispositions particulires applicables aux communes urbaines concernait, dans le texte originel,
les villes de plus de 750.000 habitants. La modification de la loi n 01-03 abaisse ce chiffre
500.000 habitants.
14 Dahir portant loi n1-76-583 du 5 chaoual 1396 (30 septembre 1976) relatif lorganisation
communale, Bulletin officiel du 1er octobre 1976, p. 1051, plusieurs fois modifi et complt.
3 DROIT ADMINISTRATIF
Trois lois sont signaler en droit administratif. Lune concerne la motivation
des dcisions administratives, les deux autres lorganisation communale et
celle des provinces et des prfectures.
3.1 Loi n 03-01 relative lobligation de la motivation des dcisions
administratives manant des administrations publiques
12
Les articles 1 et 2 de cette loi font obligation aux administrations de lEtat,
aux collectivits locales, aux tablissements publics et aux organismes chargs
de la gestion dun service public, de motiver, sous peines dillgalit, les
dcisions individuelles:
lies lexercice des liberts publiques ou prsentant un caractre de
police administrative;
infligeant des sanctions administratives ou disciplinaires;
subordonnant des conditions restrictives particulires loctroi dune
autorisation, dune attestation ou de tout autre document administratif
ou imposant de sujtions non prvues par la loi et ou rglement;
retirant ou abrogeant une dcision cratrice de droit;
opposant une prescription, une forclusion ou une dchance de droit;
refusant un avantage dont lattribution constitue un droit pour les
personnes qui remplissent les conditions pour lobtenir.
Ne sont pas soumises ces dispositions, les dcisions administratives relatives
la sret intrieure ou extrieure de lEtat.
3.2 Loi n 78-00 portant charte communale
13
Cette loi remplace un texte relatif lorganisation communale qui datait de
1976.
14
Dans son titre premier la loi dfinit les communes, de la mme manire
que le dahir portant loi de 1976, comme des collectivits territoriales de
droit public, dotes de la personnalit morale et de lautonomie
financire. Elles sont divises en communes urbaines et communes rurales.
Le titre II prvoit les organes de la commune: conseil communal, bureau
du conseil et organes auxiliaires (secrtaire, secrtaire adjoint, rapporteur du
Country Surveys
355
budget et rapporteur adjoint, commissions) lus par le conseil parmi ses
membres.
Le titre III est consacr au statut de llu. On soulignera que si aucune
condition dinstruction, ni mme dalphabtisation nest pose pour les
conseillers, ne peuvent tre lus prsident ni en exercer mme temporairement
les fonctions, les conseillers nayant pas au moins un niveau dinstruction
quivalent la fin des tudes primaires.
Le titre IV traite des comptences. Le conseil communal a des comptences
propres (dveloppement conomique et social: finances et fiscalit: urbanisme
et amnagement du territoire: services publics locaux et quipements collectifs;
hygine, salubrit et environnement: quipements et actions socioculturels,
coopration, association et partenariat). Il a galement des comptences qui
peuvent lui tre transfres par lEtat (ralisation et entretien des
tablissements scolaires, des centres dapprentissage et de formation
professionnelle, des ouvrages de petite et moyenne hydraulique, ralisation
des programmes de reboisement, protection et rhabilitation des monuments
historiques, formation des personnels et lus communaux, infrastructures et
quipement communal). Enfin, le conseil peut tre consult par lEtat sur
diverses questions qui lintressent.
Le prsident du conseil communal est lautorit excutive de la commune
et, ce titre, bnficie des pouvoirs ncessaires pour remplir sa mission.
Enfin lautorit locale reprsentant le ministre de lintrieur (pachas et
cads) conserve un certain nombre de pouvoir relatif au maintien de lordre.
Le titre V est consacr au fonctionnement du conseil communal
(convocations, dlibrations, procs-verbaux).
Le titre VI traite de la tutelle sur les actes du conseil municipal et du
prsident du conseil municipal: la tutelle est exerce par le ministre de
lintrieur ou son reprsentant pour les communes urbaines et par le wali ou
le gouverneur pour les communes rurales.
Le titre VII est consacr la coopration des communes. Les communes
peuvent conclure entre elles ou avec dautres collectivits locales des
conventions de partenariat pour la ralisation dun projet dintrt commun.
Elles peuvent galement constituer entre elles ou avec dautres collectivits
locales des groupements de communes ou de collectivits pour la ralisation
dune uvre commune ou la gestion dun service dintrt gnral. Le
groupement est un tablissement public dot de la personnalit morale et de
lautonomie financire.
Le titre VIII traite des dispositions particulires aux communes urbaines de
plus de 500.000 habitants. Les deux derniers titres sont consacrs aux
dispositions transitoires et finales.
La nouvelle charte communale sinscrit dans le cadre de la dcentralisation.
Elle apporte un certain nombre dinnovations dont notamment:
un largissement et une meilleure dfinition des comptences des organes
communaux (conseils communaux et prsidents des conseils
communaux). Toutefois, lautorit locale conserve dimportants pouvoirs
dans les domaines les plus sensibles pour le maintien de lordre;
une meilleure dfinition de larticulation entre les comptences des
autorits communales et celles des autres collectivits locales;
Morocco
356
novembre 2002, p. 1370.
16 Dahir n 1-63-273 du 22 rabii II 1383 (12 septembre 1963), Bulletin officiel du 13 septembre
1963, p. 1469.
17 Voir Yearbook, Vol. 4, p. 432.
18 Actuellement le Maroc comporte 16 rgions, 17 wilayas, celles ci- regroupant 45 provinces et
26 prfectures, les prfectures concernant les parties plutt urbanises du territoire et les
provinces les parties plutt rurales.
un transfert de la tutelle sur les dcisions des communes rurales, du
ministre de lintrieur au gouverneur (les dcisions des communes
urbaines restent soumises a tutelle du ministre de lintrieur);
lacclration des dcisions des autorits de tutelle;
une modification du statut des grandes villes qui jusque l tait clates
en plusieurs communes urbaines. Les villes de plus de 500.000 habitants
constituent dsormais une seule municipalit fractionne en
arrondissements. Cette modification devrait favoriser une gestion plus
unifie et rationnelle des grandes villes.
3.3 Loi n 79-00 relative lorganisation des collectivits prfectorales et
provinciales
15
Cette loi remplace un texte de 1963
16
relatif lorganisation des prfectures,
des provinces et de leurs assembles.
Avant de prsenter cette loi il nest pas inutile de prciser que la division
administrative du Maroc repose sur sept sortes de circonscriptions: wilayas,
prfectures ou provinces, cercle, circonscriptions urbaines ou rurales (cadat),
communes urbaines ou rurales. A cette liste il faut ajouter les rgions,
collectivits territoriales cres en 1997,
17
cadre gographique de rfrence
pour lensemble de lorganisation administrative.
18
Comme la charte communale, cette loi se situe dans la perspective de la
dcentralisation. La nouvelle organisation de la collectivit prfectorale et
provinciale largit la comptence du conseil lu, donne un pouvoir un
peu plus tendu au prsident de ce conseil et assouplit la tutelle sur les
dlibrations.
Elle comporte huit titres. Le premier dfinit les prfectures et provinces
comme des collectivits locales dotes de la personnalit morale et de
lautonomie financire.
Le titre II prvoit les organes de la collectivit prfectorale ou provinciale:
un conseil prfectoral ou provincial, un bureau lu parmi les membres du
conseil et des organes auxiliaires (secrtaire et secrtaire adjoint, rapporteur
du budget et rapporteur adjoint et commissions).
Le titre III est consacr la condition de llu. Les conditions dinstruction
sont les mmes que pour les lus municipaux.
Le titre IV rpartit les comptences. Le conseil prfectoral ou provincial a
des comptences propres, des comptences consultatives et peut avoir des
comptences transfres par lEtat. Le prsident, lu par le conseil prfectoral
ou provincial, reprsente la collectivit dans tous les actes de la vie civile,
Country Surveys
357
19 Promulgue par dahir n 1-02-255 du 3 octobre 2002, Bulletin officiel n 5078 du 30 janvier
2003 (en langue arabe).
20 Promulgue par dahir n 1-03-140 du 28 mai 2003 (26 rabii I 1424, Bulletin officiel du 5 juin
2003, p. 416.
administrative et judiciaire. Le wali ou le gouverneur de la prfecture ou de la
province excute les dlibrations du conseil.
Le titre V organise le fonctionnement du conseil prfectoral ou provincial
(rgime des runions et des dlibrations) et le titre VI est consacr la tutelle
qui est exerce par le ministre de lintrieur.
Le titre VII est consacr la coopration des prfectures et des provinces
qui peuvent, comme les communes, conclure entre elles ou avec dautres
collectivits locales des conventions de partenariat pour la ralisation dun
projet commun. Elles peuvent galement constituer des groupements pour
la ralisation dune uvre commune ou la gestion dun service dintrt
gnral: ces groupements sont tablissements publics dots de la personnalit
morale et de lautonomie financire.
Enfin le titre VIII est consacr aux dispositions particulires et finales.
4 DROIT PNAL ET PROCDURE PNALE
Deux textes de grande importance interviennent au cours du premier semestre
2003. Un nouveau code de procdure pnale et une loi destine sanctionner
rigoureusement le terrorisme.
4.1 Loi n 22-01 relative la procdure pnale
19
Un nouveau code de procdure pnale a t promulgu et publi au dbut
de lanne 2003. Il sagit de la loi n 22-01 relative la procdure pnale. Ce
texte devait initialement, lors de sa publication, entrer en vigueur en octobre
2004. A la suite des attentats terroristes de Casablanca, le 16 mai 2003, il est
apparu urgent en mme temps quintervenait la loi relative au terrorisme,
dutiliser certaines dispositions prvues par le nouveau code. Son entre en
vigueur a donc t avance au 1
er
octobre 2003 lexception du titre sur
linstruction prparatoire qui est entr en vigueur en mme temps que le
texte sur le terrorisme (voir ci-dessous). La loi sur la procdure pnale nest
pas encore publie en franais, elle le sera sous peu. Sa prsentation sera faite
la date de sa publication en franais.
4.2 Loi n 03-03 relative la lutte contre le terrorisme
20
Cette loi tait en prparation depuis plusieurs mois; le projet faisait lobjet de
dbats, notamment dans la presse, les dfenseurs des droits humains critiquant
les restrictions importantes aux liberts quil apportait. Les attentats de
Casablanca ont conduit son vote immdiat par le Parlement dans une
apparente unanimit.
Morocco
358
La loi comporte deux titres. Le premier est consacr aux modifications
quapporte la nouvelle loi au code pnal, le second celles apportes au code
de procdure pnale.
Le titre premier ajoute un chapitre I bis au livre III du code pnal, intitul
le terrorisme (articles 218-1 218-9 du code pnal). Dans ce chapitre sont
dfinies les nouvelles infractions introduites par la loi ainsi que leur sanction.
Sont considres comme acte de terrorisme, certaines infractions lorsquelles
sont intentionnellement en relation avec une entreprise individuelle ou collective ayant
pour but latteinte grave lordre public par lintimidation, la terreur ou la violence.
Ces infractions sont: latteinte volontaire la vie, lintgrit physique ou la
libert des personnes; la contrefaon ou falsification de monnaie; les
destructions, dgradations ou dtriorations; le dtournement ou la
dgradation daronefs, de navires et de moyens de communication; les vols
et extorsions ; la fabrication, dtention, utilisation illgale darmes ou
dexplosifs; les infractions relatives aux systmes de traitement automatis des
donnes; les faux ou falsifications en matire de chques ou de tout autre
moyen de paiement; la participation une association forme dans un but de
terrorisme: le recel du produit dune infraction de terrorisme.
Lorsque ces infractions sont commises dans les circonstances indiques
plus haut, la peine encourue subit une aggravation fixe par le nouvel article
218-7.
Les articles 218-2 218-6 sanctionnent galement le fait de rpandre dans
la terre, lair ou le sol des produits dangereux pour la sant, laide apporte
la commission dun acte de terrorisme, lapologie du terrorisme et la non-
rvlation dactes de terrorisme. La majorit des sanctions sont de nature
criminelle. La peine de mort est encourue dans plusieurs hypothses.
Le Titre II traite des modifications apportes au code de procdure pnale.
Elles concernent une extension des pouvoirs de la police et du parquet pendant
lenqute de police et linstruction (les perquisitions peuvent avoir lieu la
nuit, elles peuvent galement se drouler sans lassentiment de la personne
chez qui elles ont lieu, la dure de la garde vue est allonge . . .), et dune
manire gnrale par une diminution des garanties reconnues aux personnes
souponnes.
Ce titre ajoute galement au livre V du nouveau code de procdure pnale
qui traite de quelques procdures particulires, un titre intitul procdure
relative au financement du terrorisme. Ces nouvelles dispositions permettent
aux juges de demander aux banques des renseignements sur les oprations
ou mouvements souponns dtre lis au terrorisme et dordonner le gel ou
la saisie des fonds souponns. Il prvoit galement des mesures dentraide
judiciaire dans le cadre des conventions internationales auxquelles le Maroc
est partie.
Les dispositions finales prvoient que la loi doit entrer en vigueur ds sa
publication au Bulletin officiel, disposition critiquable au regard des rgles
dapplication de la loi pnale dans le temps, puisque le principe de lgalit
des dlits et des peines pos par la Constitution et par le code pnal, impose
que la loi applicable au jugement dune infraction soit celle en vigueur au
jour de la commission de cette infraction.
Country Surveys
359
21 Promulgue par dahir n 1-02-172 du 13 juin 2002 (1er rabi II 1423), Bulletin officiel du 5
septembre 2002, p. 914.
22 Dahir portant loi n1-93-165 du 10 septembre 1993, Bulletin officiel du 15 septembre 1993,
p. 479.
5 DROIT DE LA FAMILLE ET DES SUCCESSIONS
On relve une seule loi dans ce domaine, la loi n 15-01 relative la prise en
charge (la kafala) des enfants abandonns.
21
Cette loi remplace un dahir
portant loi de 1993
22
qui prsentait la kafala comme un simple engagement
dassurer lentretien de lenfant abandonn et prvoyait son attribution
par une dcision administrative et un simple engagement du kafil dress par
deux notaires traditionnels (adoul). Ce dahir, trop bref sur les conditions
remplir pour obtenir la kafala et surtout sur ses effets, na jamais eu de textes
dapplication.
La nouvelle loi sur la kafala, plus complte comble en grande partie les
lacunes du texte de 1993.
Le premier chapitre est consacr aux conditions gnrales. Il dfinit la kafala
comme lengagement de prendre en charge la protection, lducation et
lentretien dun enfant abandonn, au mme titre que le ferait un pre pour
son enfant. Cependant la kafala ne donne pas de droit la filiation ni la
succession. La loi dfinit ensuite la procdure suivre pour la dclaration
dabandon.
Le chapitre II a pour titre la situation juridique de lenfant abandonn.
Le contenu du chapitre rpond assez mal cet intitul puisquil traite en trois
sections des conditions pour obtenir la kafala (la kafala peut tre confi un
couple ou une femme, de religion musulmane et remplissant des conditions
dge, de moralit et de bonne sant. La kafala peut galement tre confie
une institution), de la procdure dattribution de la kafala (par une
ordonnance du juge des tutelles, aprs enqute) et enfin du suivi de lexcution
de la kafala par le juge des tutelles.
Le chapitre III prvoit linscription de la kafala sur les registres de ltat
civil, le chapitre IV les effets de lordonnance relative la kafala (droits et
devoirs du kafil), le chapitre V des motifs de cessation de la kafala (majorit
ou dcs de lenfant, incapacit du kafil ou ordonnance judiciaire lorsque la
personne charge de lenfant se dsiste ou nassume pas ses obligations).
Le chapitre VI, consacr aux dispositions pnales, prvoit que les dispositions
du code pnal punissant les parents pour les infractions quils commettent
sur leurs enfants ou les enfants pour les infractions quils commettent sur
leurs parents sappliquent dans le cas de la kafala.
6 DROITS DE LA PERSONNE DROIT CIVIL
6.1 Droits de la personne
On relve deux textes relatifs aux droits de la personne: lun concerne ltat
civil des personnes, lautre lge de la majorit. On mentionnera galement
la publication dun dcret dapplication de la loi relative au don dorganes.
Morocco
360
23 Promulgue par dahir n 1-02-239 du 3 octobre 2002, Bulletin officiel du 7 novembre 2002,
p. 1193.
24 Tout enfant n dune mre non marie est un enfant de pre inconnu puisque la filiation
naturelle paternelle nexiste pas en droit marocain.
25 Dcret n 2-99-665 du 9 octobre 2002, Bulletin officiel du 7 novembre 2002, p. 1193.
26 Arrt n 836-03 du 24 avril 2003 (21 safar 1424), Bulletin officiel du 5 juin 2003, p. 414.
Loi n 37-99 relative ltat civil
23
Cette loi remplace des textes anciens et dsuets par certaines de leurs
dispositions. En effet, jusqu prsent, ltat civil tait organis par un dahir
du 4 septembre 1915 principalement destin lpoque organiser ltat
civil des franais et des trangers rsidant au Maroc. Ltat civil tait ouvert
aux marocains, mais restait facultatif pour eux. En 1950 un dahir rendait
obligatoire les dclarations de naissance et de dcs pour les Marocains, mais
dans des dlais qui devaient tre fixs par dcret et ne lont pas t.
Linscription ltat civil tait, certes, indispensable pour le versement de
prestations sociales ou la scolarisation, mais navait pas de vritable caractre
obligatoire jusqu la loi 37-99 promulgue en 2002.
Le nouveau texte introduit donc la gnralisation de ltat civil, la rforme
du contenu et de la forme du livret de famille (jusque l lpouse ou les
pouses ne figuraient dans le livret qu titre de mre des enfants la suite
de ltat civil de chacun deux). Il prvoit linscription ltat civil des enfants
naturels, question qui na pas t sans soulever de dbats: lenfant de pre
inconnu
24
est dclar par la mre qui lui choisi un prnom de pre comprenant
lpithte Abd ainsi quun nom de famille qui lui est propre. Lenfant n de
parents inconnus est dclar par le procureur du Roi: un nom et prnom lui
sont choisis et lofficier dtat civil mentionne en marge de lacte que ce choix
est fait en conformit aux dispositions de la loi.
La loi prsente, dans un premier chapitre, les dispositions gnrales. Ltat
civil est dfini comme le rgime consistant consigner et authentifier les
faits civils fondamentaux relatifs aux personnes, tels que la naissance, le dcs,
le mariage et le divorce ainsi qu consigner dans les registres de ltat civil
toutes les indications sy rapportant selon leur nature et les dates et lieux de
leur survenance. La force probante des actes de ltat civil est celle des actes
authentiques. Les prsidents des conseils communaux sont investis des
fonctions dofficiers dtat civil. Tous les Marocains sont soumis au rgime de
ltat civil, ainsi que les trangers en ce qui concerne les naissances et les
dcs survenant sur le territoire national.
Les chapitres suivants sont consacrs aux registres dtat civil, aux diffrents
actes (naissance, dcs, consignation du mariage), la copie de ces actes et
leur rectification et aux jugements dclaratifs dtat civil.
La loi est complte par son dcret dapplication publi au mme Bulletin
officiel.
25
Le modle du nouveau livret dtat civil est fix par un arrt du
ministre de lintrieur du 24 avril 2003.
26
Country Surveys
361
27 Promulgue par dahir n 1-03-81 du 24 mars 2003 (20 moharrem 1424), Bulletin officiel du 3
avril 2003, p. 244.
28 Loi n 16-98 relative au don, au prlvement et la transplantation de tissus humains,
promulgue par dahir n 1-99-208 du 25 aot 1999, Bulletin officiel du 16 septembre 1999,
p. 728, voir Yearbook, volume 6, p. 356.
29 Dcret n 2-01-1643 du 9 octobre 2002 (2 chaabane 1423), Bulletin officiel du 2 janvier 2003,
p. 79.
30 Promulgue par dahir n 1-02-298 du 3 octobre 2002 (25 rejeb 1423), Bulletin officiel du 7
novembre 2002, p. 1216, rectificatif au Bulletin officiel du 20 mars 2003, p. 238.
Loi n63-02 modifiant le code de statut personnel (Moudaouana)
27
Cette loi modifie larticle 137 du code de statut personnel en fixant dix huit
annes grgoriennes rvolues la majorit lgale qui jusque l tait atteinte
vingt ans. Lge auquel le mineur peut tre mancip a galement t
abaiss: il passe de dix huit dix sept ans (article 165).
Dcret dapplication de la loi relative au don et la transplantation dorganes
Une loi n 16-98 relative au don, au prlvement et la transplantation de
tissus humains a t promulgue le 25 aot 1999.
28
Le dcret dapplication a
t publi le 2 janvier 2003.
29
Il fixe les organes susceptibles de don et de
transplantation, les modalits de lagrment des tablissements pouvant oprer
les transplantations, les rgles prcises devant tre respectes pour ces
transplantations, celles relatives limportation et lexportation des organes
et tissus humains. Enfin il prcise la composition et les attributions du conseil
consultatif de transplantation dorganes humains. Ce texte permet la mise en
uvre effective de la loi n 16-98.
6.2 Droit civil
Deux lois sont promulgues et publies, lune relative la coproprit des
immeubles btis, lautre organisant la vente dimmeuble en tat de futur
achvement.
Loi n 18-80 relative au statut de la coproprit des immeubles btis
30
Cette loi remplace un texte dj ancien, le dahir du 16 novembre 1946. La
nouvelle loi a un champ dapplication plus tendu, puisquelle sapplique
non seulement aux immeubles partags en appartements, comme le texte de
1946, mais aussi aux ensemble dimmeubles et aux coopratives. La loi
sapplique galement quel que soit le statut foncier de limmeuble, alors que
Morocco
362
31 Il existe au Maroc une diversit des statuts fonciers. On distingue notamment les immeubles
immatriculs qui sont soumis au rgime foncier introduit en 1913 et 1915 par le protectorat
(avec titre foncier, inscription des droits rels sur les registres fonciers et effet de purge des
inscriptions) et les immeubles non immatriculs qui restent soumis au droit musulman non
codifi dans ce domaine.
novembre 2002, p. 1223, rectificatif au Bulletin officiel du 20 mars 2003, p. 238.
le texte de 1935 ne sappliquait quaux immeubles immatriculs
31
ou en cours
dimmatriculation.
Dans un premier chapitre relatif aux dispositions gnrales la loi fixe avec
prcision la consistance des parties communes et des droits accessoires aux
parties communes: le rglement de coproprit qui devient obligatoire est
prvu avec les mentions qui doivent imprativement y figurer. La loi prvoit,
et cest une autre innovation, que tout acte relatif un droit rel concernant
la coproprit doit, sous peine de nullit, tre un acte authentique ou un acte
ayant date certaine dress par un professionnel appartenant une profession
juridique et rglemente autorise dresser ces actes. La liste des
professionnels habilits doit tre dresse annuellement par le ministre de la
justice, mais la loi prcise dores et dj que les avocats figurent sur cette liste.
Le deuxime chapitre traite de la coproprit en deux sections: la premire
est consacre au syndicat des copropritaires, son organisation son
fonctionnement et ses attributions, ainsi que du syndic de coproprit. La
deuxime section aborde les droits et obligations des copropritaires.
Le troisime chapitre concerne les droits de surlvation, excavation et
reconstruction de limmeuble, droits qui peuvent tre exercs sils sont
expressment autoriss par les lois en vigueur et dcids par lassemble
gnrale des copropritaires.
Le quatrime chapitre prvoit lapplication de la loi aux coopratives et
associations dhabitat et le chapitre V contient les dispositions spcifiques aux
immeubles immatriculs (morcellement du titre foncier, inscription des droits
rels et charges foncires, inscription des parties communes au nom du
syndicat . . .).
Loi n 44-00 compltant le dahir formant code des obligations et contrats
Cette loi ajoute au code des obligations et contrats du 12 aot 1913 (9 ramadan
1331) une section consacre la vente dimmeuble en tat de futur
achvement.
32
La vente dappartements dans des immeubles en projet ou en
construction se trouve ainsi rglemente afin dviter dventuels abus des
promoteurs immobiliers. Est considre comme vente dimmeuble en tat
de futur achvement, toute convention par laquelle le vendeur soblige difier
un immeuble dans un dlai dtermin et lacqureur sengage en payer le
prix au fur et mesure de lavancement des travaux.
La loi prvoit que la vente fait lobjet dun contrat prliminaire, qui doit,
sous peine de nullit, comme pour les contrats passs dans le cadre des
immeubles en coproprit, tre un acte authentique ou un acte ayant date
certaine, dress par un professionnel appartenant une profession juridique
et rglemente autorise, les avocats tant dj autoriss.
Country Surveys
363
33 Promulgue par dahir n 1-02-188 du 23 juillet 2002 (12 joumada I 1423), Bulletin officiel du 5
septembre 2002, p. 920.
Sont ensuite prciss la consistance de lacte, les droits et obligations de
chacun des partenaires, les dispositions relatives au retard, la rsiliation du
contrat et enfin la rdaction du contrat dfinitif.
7 DROIT DES AFFAIRES
On relve, en droit des affaires, la publication de la loi n 53-00 formant charte
de la petite et moyenne entreprise,
33
en prparation depuis plusieurs annes.
Le titre premier dfinit la petite et moyenne entreprise (PME) comme toute
entreprise gre et/ou administre par les personnes physiques qui en sont
les propritaires, copropritaires ou actionnaires et qui nest pas dtenue
plus de 25 per cent du capital ou des droits de vote par une entreprise ne
correspondant pas la dfinition de la PME. En outre elle doit rpondre aux
conditions suivantes:
pour les entreprises existantes, avoir un effectif permanent ne dpassant
pas deux cents personnes et avoir ralis, au cours des deux derniers
exercices, soit dun chiffre daffaires annuel hors taxes nexcdant pas
75 millions de dirhams, soit dun total de bilan annuel nexcdant pas
cinquante millions de dirhams;
pour les entreprises nouvellement cres, engager un programme
dinvestissement initial global nexcdant pas 25 millions de dirhams et
respecter un ratio dinvestissement par emploi de moins de 250,000
dirhams. On entend par entreprise nouvellement cre, toute entreprise
ayant moins de deux annes dexistence.
Le titre II dfinit le cadre institutionnel de la PME. Ce cadre comporte:
Lagence nationale pour la promotion de la PME qui assure
lencadrement de lEtat; cette agence est charge de la mise en uvre de
la politique de lEtat en matire de promotion et de soutien de la PME,
et, de manire gnrale, de toutes les questions la concernant, en
particulier encouragements et appui aux organes uvrant dans le
domaine de la petite et moyenne entreprise et aux actions entreprises
par elles ou en leur faveur;
Les associations de soutien la PME qui pourront prendre la
dnomination de maison de la jeune entreprise si elles sengagent
respecter un cahier des charges dfinissant les modalits de mise en uvre
de leur mission de soutien aux PME.
Le titre III prvoit les mesures daide la PME: dune part des mesures
dordre financier, foncier et administratif, dautre part des mesures
destines favoriser le financement des PME. Le titre IV prvoit des
dispositions dordre fiscal.
Le dernier titre dissous lOffice pour le dveloppement industriel, cre
en 1973 et qui ntait plus quune coquille vide.
Morocco
364
novembre 2002, 1154.
8 DROIT DES ASSURANCES
Un texte trs important intervient dans ce domaine, la loi n 17-99 portant
code des assurances.
34
La rglementation marocaine des assurances tait, jusqu la promulgation
de ce code, ancienne et disperse. Les textes les plus importants taient larrt
viziriel du 26 novembre 1934 relatif au contrat dassurances et larrt viziriel
du 6 septembre 1941 unifiant le contrle de lEtat sur les entreprises
dassurances, de rassurances et de capitalisation. Mais la nouvelle loi abroge
une douzaine de textes qui eux, mmes avaient t plusieurs fois modifis ou
complts. Lancienne lgislation tait donc dun accs difficile: elle se rvlait
en outre insuffisamment adapte aux volutions rcentes du secteur.
Le code comprend cinq livres: le contrat dassurances; les assurances
obligatoires; les entreprises dassurances et de rassurances; la prsentation
des oprations dassurances; les dispositions diverses et transitoires.
Le premier livre est lui-mme divis en trois titres: le premier pose les rgles
gnrales applicables: dfinitions, formes et preuve du contrat dassurance,
obligations de lassureur et de lassur, prescription. Le titre deux est consacr
aux assurances dommages et le troisime aux assurances de personnes. Ce
livre reprend la plupart des dispositions de lancienne lgislation. Toutefois il
rglemente pour la premire fois les assurances-groupes et les assurances sur
la vie capital variable et il apporte un certain nombre de prcisions de nature
renforcer la protection des assurs et prciser les droits et obligations de
chacune des parties au contrat.
Le deuxime livre est consacr aux assurances obligatoires et traite
successivement en quatre titres: lassurance chasse, lassurance automobile,
le fonds de garantie des accidents de la circulation et les sanctions.
Le troisime livre traite des entreprises dassurances et de rassurances. Il
comporte neuf titres consacrs aux conditions gnrales, aux conditions
dexercice imposes aux entreprises, aux rgles de gestion, aux rgles
comptables et statistiques, aux garanties financires, aux rgles de contrle,
la liquidation, aux privilges des assurs et bnficiaires de contrats, aux
sanctions et enfin aux organismes professionnels. Ce livre apporte des
modifications importantes la lgislation antrieure. On mentionnera
notamment que la nouvelle loi limite les formes juridiques des entreprises
dassurances aux socits anonymes et aux mutuelles et leurs unions: elle
prcise et renforce le contrle de lEtat sur les entreprises dassurances: elle
instaure des mesures de sauvegarde adaptes au degr daltration de la
situation financire des entreprises en difficult.
Le livre IV traite de la prsentation des oprations dassurance. Il comporte
cinq titres traitant de la dfinition et des conditions dexercice et de gestion;
de la cession de portefeuille dune socit de courtage ou dune agence
dassurance: des rgles de contrle; de la cessation dactivit et du retrait
dagrment de lintermdiaire dassurance; des sanctions administratives et
pnales. Ce livre dtermine le champ dactivit des intermdiaires. La loi ne
Country Surveys
365
novembre 2002, p. 1333.
36 Promulgue par dahir n 1-03-59 du 12 mai 2003 (10 rabii I 1424), Bulletin officiel du 19 juin
2003, p. 500.
soppose plus la prsentation des produits dassurances par les entreprises
elles-mmes. Les intermdiaires sont soumis des conditions destines
assurer leur professionnalisme et protger le consommateur. Tout en tenant
compte de la prsence du secteur bancaire, la loi limite la commercialisation
des produits dassurance par le biais des banques aux assurances de personne
en raison de la composante pargne qui caractrise la plupart dentre elles.
Le livre V et dernier est consacr aux dispositions diverses et transitoires:
abrogations et modalits dentre en vigueur.
9 DROIT DU TRAVAIL ET DE LA SCURIT SOCIALE
9.1 Loi n 65-00 portant code de la couverture mdicale de base
35
Une loi importante est promulgue en octobre 2002, il sagit de la loi n 65-00
portant code de la couverture mdicale de base.
36
Jusqu cette loi la couverture
mdicale tait loin dtre gnralise au Maroc. La Caisse nationale de scurit
sociale (CNSS), obligatoire pour les travailleurs du secteur priv, leur versait
les allocations familiales et couvrait linvalidit, la vieillesse, et les indemnits
pour perte de salaire en cas de maladie et de maternit mais elle nassurait
pas les soins mdicaux des travailleurs. Ces soins pouvaient faire lobjet dune
assurance facultative souscrite par lemployeur pour lensemble de ses salaris.
Dans le secteur public, les prestations dindemnits de maladie ou de
maternit taient intgrs au rgime des salaires. Les soins mdicaux relevaient
dun rgime de mutualit facultatif pour lesquels lEtat versait la moiti de la
cotisation. Les diffrentes mutuelles concernant les fonctionnaires taient
regroupes dans la Caisse nationale des uvre de prvoyance sociale (CNOPS).
Lassurance maladie est devenue obligatoire pour les fonctionnaires et les
retraits de la fonction publique en 2000.
La nouvelle loi portant code de la couverture mdicale gnralise institue
une assurance maladie obligatoire et prvoit un rgime dassistance pour les
indigents.
Le livre premier traite des dispositions gnrales. Il dtermine le champ
dapplication de la loi qui concerne tous les fonctionnaires et agents de lEtat
et des collectivits locales ainsi que tous les salaris du secteur priv et leurs
ayants-droit et prcise les modalits de prise en charge et les dispositions
relatives aux ressources financires. Dans ce livre est cre lagence nationale
de lassurance maladie, tablissement public ayant pour mission dassurer
lencadrement technique de lassurance maladie obligatoire de base et de
veiller la mise en place des outils de rgulation du systme.
Le livre II est consacr au rgime de lassurance maladie obligatoire de
base des salaris et des titulaires de pension des secteurs public et priv. Cette
assurance est gre par les organismes existants, CNOPS pour le secteur public
et CNSS pour le secteur priv.
Morocco
366
Le livre III prvoit un rgime dassistance mdicale pour les personnes qui
ne sont assujetties aucun rgime dassurance maladie obligatoire. Ce rgime
sera financ principalement par lEtat et les collectivits locales. Son entre
en vigueur est repousse une date ultrieure puisquelle est soumise des
textes dapplication dont on ne sait dans quels dlais ils interviendront.
Le livre IV comporte les dispositions relatives au contentieux et aux sanctions
pnales.
10 DROIT DE LENVIRONNEMENT
On relve trois lois attendues depuis longtemps dans ce domaine. Elles
concernent la protection et la mise en valeur de lenvironnement, les tudes
dimpact sur lenvironnement et la lutte contre la pollution de lair.
10.1 Loi n 1-03 relative la protection et la mise en valeur de
lenvironnement
37
Depuis de nombreuses annes, les projets de code de lenvironnement se
succdaient sans aboutir. Cest dire si cette loi tait attendue. En ralit, il
ne sagit pas dun code de lenvironnement mais plutt dune loi cadre qui
pose les grands principes et les grandes orientations dans le domaine de la
protection de lenvironnement mais comporte peu de prescriptions prcises.
Son effectivit dpendra des textes dapplication qui interviendront par la
suite.
La loi comporte 80 articles rpartis en sept chapitres.
Le chapitre premier intitul dispositions gnrales, aprs avoir pos les
principes gnraux de la politique nationale dans le domaine de
lenvironnement, donne la dfinition des concepts utiliss dans la suite du
texte (environnement, dveloppement durable, quilibre cologique, rserves
naturelles, etc.). Les dfinitions donnes sinspirent des conventions
internationales labores dans ce domaine.
Le chapitre II traite de la protection de lenvironnement et des
tablissements humains en trois sections consacres aux tablissements
humains, au patrimoine historique et culturel et aux installations classes (il
sagit des installations considres comme insalubres ou dangereuses et qui
sont classes en catgories en fonction des menaces quelles font courir
lenvironnement et la sant).
Le chapitre III aborde la protection de la nature et des ressources naturelles
en six sections: le sol et le sous-sol: la faune, la flore et la biodiversit: les eaux
continentales: lair: les espaces et les ressources marins y compris le littoral:
les campagnes et les zones montagneuses: les aires spcialement protges,
les parcs, les rserves naturelles et les forts protges.
2003, p. 507.
Country Surveys
367
Le chapitre IV est consacr aux pollutions et nuisances. Quatre sections
traitent successivement des dchets, des rejets liquides et gazeux, des substances
nocives et dangereuses, des nuisances sonores et olfactives.
Le chapitre V traite des instruments de gestion et de protection de
lenvironnement. Les trois premires sections abordent les tudes dimpact
sur lenvironnement, les plans durgence, les normes et standards de qualit
de lenvironnement, la section IV prvoit la mise en place dincitations
financires et fiscales et la section V la cration dun fonds national pour la
protection de lenvironnement.
Le chapitre VI intitul rgles de procdure prvoit dans une premire
section un rgime spcial de responsabilit civile sans faute pour les personnes
utilisant ou transportant des substances dangereuses ou exploitant une
installation classe. Dans cette hypothse, il peut y avoir un plafonnement de
la responsabilit un montant global par incident: ce plafonnement sera fix
par voie rglementaire. Par contre si lincident est caus par la faute du
civilement responsable, il ne peut y avoir de limitation de responsabilit.
La deuxime section traite de la remise en tat de lenvironnement qui
peut tre impos par ladministration selon une procdure que la loi ne prcise
pas.
La troisime section de ce chapitre concerne la transaction sur les
contraventions prvues par la loi sur lenvironnement et ses textes dapplication
et la quatrime les modalits de poursuites des infractions. Curieusement, la
loi ne prvoit prcisment aucune infraction, ce qui confirme bien quil sagit
dune loi cadre dont leffectivit est fonction des textes qui, dans lavenir,
interviendront pour en prciser les dispositions..
Le dernier chapitre dispositions finales prvoit de manire fort peu prcise
labrogation des dispositions lgislatives et rglementaires antrieures
contraires aux dispositions de la prsente loi et lentre en vigueur immdiate
de la loi.
10.2 Loi n 12-03 relative aux tudes dimpact sur lenvironnement
38
La loi n 12-03 rend obligatoires les tudes dimpact sur lenvironnement
pour une liste de projets numrs en annexe, pouvant avoir des consquences
nfastes sur lenvironnement : tablissements insalubres, constructions
dinfrastructures (routes, voies ferres, barrages, ports, stations dpuration,
etc.) et certains projets dans lindustrie, lagriculture laquaculture et la
pisciculture.
Le chapitre premier dfinit les concepts utiliss dans la loi (tude dimpact,
zones sensibles, etc.) et pose le principe des tudes dimpact obligatoires pour
les projets numrs en annexe.
Le chapitre II expose les objectifs de ltude dimpact qui sont
essentiellement dvaluer de manire mthodique et pralable les effets dun
projet sur lenvironnement, pour en attnuer les rpercussions ngatives, en
Morocco
2003, p 507.
368
dvelopper les rpercussions positives et en informer les populations. Dans le
mme chapitre est expos le contenu des tudes dimpact.
Le chapitre III cre un comit national et des comits rgionaux dtudes
dimpact sur lenvironnement qui ont pour mission dexaminer les tudes et
de donner leur avis sur lacceptabilit environnementale des projets. Le mme
chapitre fixe galement les grandes lignes de la procdure suivre pour les
tudes dimpact.
Le dernier chapitre est consacr la constatation des infractions. Mais
comme dans la loi relative la protection et la mise en valeur de
lenvironnement, aucune infraction prcise nest cre.
10.3 Loi n 13-03 relative la lutte contre la pollution de lair
39
Cette troisime loi, promulgue et publie en mme temps que les deux
prcdentes, complte le nouvel arsenal lgislatif de protection de
lenvironnement. Comme elles, elle pose un cadre la lutte contre la pollution
de lair mais naura deffectivit que par llaboration de textes qui viendront
en prciser le contenu.
Aprs un premier chapitre qui dfinit les termes utilises dans la suite du
texte, le chapitre II prcise le champ dapplication de la loi. Celle-ci est
applicable toute personne physique ou morale, de droit priv ou de droit
public, possdant, dtenant, utilisant ou exploitant des immeubles, des
installations minires, industrielles, commerciales ou agricoles, ou des
installations relatives lindustrie artisanale, ou des vhicules, des engins
moteur, des appareils de combustion, dincinration des dchets, de chauffage
ou de rfrigration. Toutefois, sont expressment exclus du domaine
dapplication de la loi les installations relevant des autorits militaires ainsi
que celles soumises la loi n 00-71 du 12 octobre 1971 relative la protection
contre les rayonnements ionisants.
40
Le chapitre III qui traite de la lutte contre la pollution de lair pose le
principe de linterdiction des rejets gazeux polluants au del de la quantit
ou de la concentration autorises par les normes fixes par voie rglementaire.
Cest dire que dans lattente des textes dapplication, la loi reste une
recommandation sans force obligatoire.
Le chapitre IV intitul moyens de lutte et de contrle est en ralit
consacr la constatation des infractions. Celle-ci relve des officiers de police
judiciaire et des fonctionnaires dlgus cet effet par ladministration
comptente.
Le chapitre V, procdures et sanctions donne ladministration le pouvoir
dordonner larrt des sources de pollution sans indiquer prcisment selon
quelle procdure, et fixe un certain nombre dinfractions (non-respect des
normes, obstacle laccomplissement des contrles . . .).
Country Surveys
2003, p 511.
40 Voir Yearbook, Vol. 4, p. 437 et 438 o sont prsents les textes dapplication de cette loi qui
concerne les activits dans lesquelles sont utilises des substances radioactives naturelles ou
artificielles.
369
Le chapitre VI prvoit que des dlais seront fixs (sans doute par voie
rglementaire) pour rendre obligatoires le respect des dispositions de la loi
et annonce la mise en place de mesures dincitation qui seront fixes par les
lois de finances.
Le dernier chapitre numre les domaines (au nombre de 10) dans lesquels
devront intervenir des dispositions rglementaires.
Il existait, depuis 1998, un texte relatif la prvention de la pollution due
aux gaz dchappements des vhicules automobiles.
41
Ce texte est entr en
vigueur le 5 aot 1998. Il nest pas appliqu dans la ralit et lon peut craindre
que la loi relative la pollution de lair subisse le mme sort. En effet, si le
problme de la pollution atmosphrique se pose trs srieusement, en
particulier dans les grandes villes, il ne semble pas que les usagers en soient
conscients ni mme proccups et quun relle volont de changement existe
chez les dcideurs. La vtust dun partie du parc automobile permet de douter
dune amlioration prochaine . . . malgr les prescriptions lgislatives et
rglementaires.
11 CONVENTIONS INTERNATIONALES
Comme dans les chroniques prcdentes, il nest pas question de prsenter
ici toutes les conventions bilatrales dentraide dans les domaines pnal, fiscal,
commercial, etc. Nous nous limiterons aux conventions internationales
publies entre le 1
er
juillet 2002 et le 30 juin 2003 (dans lordre de leur
publication) ainsi que les conventions internationales approuves par le
Parlement.
Il sera sans doute utile de prciser que, selon larticle 31 de la Constitution,
cest le Roi qui signe et ratifie les traits. Toutefois les traits engageant les
finances de lEtat ne peuvent tre ratifis sans avoir t pralablement
approuvs par la loi.
11.1 Convention internationale sur la responsabilit et lindemnisation
pour les dommages lis au transport par mer de substances nocives et
potentiellement dangereuses
Et les annexes I et II y relatives, faite Londres le 3 mai 1996. Le principe de
ladhsion est approuv par le parlement.
42
Morocco
41 Dcret n 2-97-377 du 28 janvier 1998 compltant larrt du 24 janvier 1953 sur la police de
la circulation et du roulage, Bulletin Officiel du 5 fvrier 1998, page 50. Voir Yearbook, volume 5,
p. 433.
42 Loi n 14-01 promulgue par dahir n 1-02-215 du 3 octobre 2002 (25 rejeb 1423), Bulletin
officiel du 7 novembre 2002, p. 1225.
370
11.2 Convention sur la mise disposition des ressources de
tlcommunication pour lattnuation des effets des catastrophes, et
pour les oprations de secours en cas de catastrophe
Faite Tempere le 18 juin 1998. Le principe de la ratification est approuv
par le parlement.
43
11.3 Protocole pour la rpression des actes illicites de violence dans les
aroports servant laviation civile internationale
Fait Montral le 24 fvrier 1988 (Protocole complmentaire la convention
pour la rpression dactes illicites dirigs contre la scurit de laviation civile
faite Montral le 23 septembre 1971). Ratification du Maroc le 15 fvrier
2002.
44
11.4 Convention relative la protection de la vie sauvage et du milieu
naturel de lEurope
Faite Berne le 19 septembre 1979.
45
Ratification par le Maroc le 25 avril
2001.
11.5 Convention pour le rglement pacifique des conflits internationaux
Faite la Haye le 18 octobre 1907. Adhsion du Maroc le 5 avril 2001.
46
11.6 Convention internationale pour la rglementation de la chasse la
baleine
Faite Washington le 2 dcembre 1946. Adhsion du Maroc le 2 fvrier 2001.
47
11.7 Protocole portant amendement de la convention unique sur les
stupfiants de 1961
Fait Genve le 25 mars 1972. Ratification par le Maroc le 19 mars 2002.
48
43 Loi n 21-01 promulgue par dahir n 1-02-217 du 3 octobre 2002 (25 rejeb 1423), Bulletin
officiel du 7 novembre 2002, p. 1226.
44 Publie par dahir n 1-96-10 du 3 avril 2002 (19 moharrem 1423), Bulletin officiel du 7 novembre
2002, p. 1231.
45 Publie par dahir n 1-00-257 du 22 juin 2001 (29 rabii I 1422), Bulletin officiel du 7 novembre
2002, p. 1236.
46 Publie par dahir n 1-99-241 du 22 juin 2001 (29 rabii I 1422), Bulletin officiel du 21 novembre
2002, p. 1403.
47 Publie par dahir n 1-00-307 du 10 avril 2001 (15 moharrem 1402), Bulletin officiel du 21
novembre 2002, p. 1384.
48 Publie par dahir n 1-97-98 du 3 avril 2002 (19 moharrem 1423), Bulletin officiel du 19 dcembre
2002, p. 1588.
Country Surveys
371
11.8 Convention sur linterdiction de la mise au point, de la fabrication et
du stockage des armes bactriologiques (biologiques) ou toxines et
sur leur destruction (1972)
Ratification par le Maroc le 21 mars 2002.
49
11.9 Convention sur linterdiction ou la limitation de lemploi de certaines
armes classiques qui peuvent tre considres comme produisant des
effets traumatiques excessifs ou comme frappant sans discrimination
Faite New York le 10 avril 1981 et protocoles additionnels n 2 et 4 faits
New York le 13 octobre 1995.
50
Ratification par le Maroc le 19 mars 2002.
11.10 Convention internationale pour la rpression du financement du
terrorisme
Faite New York le 10 janvier 2000. Ratification par le Maroc le 19 octobre
2002.
51
11.11 Convention concernant la comptence, la loi applicable, la
reconnaissance, lexcution et la coopration en matire de
responsabilit parentale et de mesures de protection des enfants
Faite La Haye le 19 octobre 1996. Ratification par le Maroc le 27 novembre
2002.
52
49 Publie par dahir n 1-01-297 du 23 juillet 2002 (12 joumada I1423), Bulletin officiel du 19
dcembre 2002, p. 1606.
50 Publie par dahir n 1-02-08 du 23 juillet 2002 (12 joumada I 1423), Bulletin officiel du 6 fvrier
2003, p. 114.
51 Publie par dahir n 1-02-131 du 12 dcembre 2002 (7 chaoual 1423), Bulletin officiel du 1er
mai 2003, p. 338.
52 Publie par dahir n 1-02-136 du 22 janvier 2003 (19 kaada 1423), Bulletin officiel du 15 mai
2003, p. 375.
Morocco
372
Pakistan
Martin Lau*
1 INTRODUCTION
2003 brought mixed fortunes to Pakistan. The countrys economy has not
only stabilised but is actually growing, foreign currency reserves have improved
and foreign investment has increased. Pakistans return to democracy has,
however, been a difficult process that can only be described as incomplete.
The decentralisation programme launched by the military government in
2000 has created severe tensions in the fragile political structure of Pakistan.
The establishment of non-party based elected local government authorities
in all four provinces has eroded Pakistans federal structure by diminishing
the autonomy of the four provincial governments. At the same time, it
has enabled President Musharraf to weaken established political parties,
thereby further strengthening his position as the de facto chief executive of
Pakistan
1
.
The wide-ranging constitutional amendments introduced through the
controversial Legal Framework Order 2002 have enabled President Musharraf
to continue to rule the country even though, at least formally, there is a now
a democratically elected government. For the time being, President Musharraf
remains very much in charge of Pakistans political life. However, tensions are
brewing. Many established politicians have been left out in the cold as a result
of the split of the Pakistan Muslim League and are attempting to launch a
viable opposition to what they regard as Pakistans very incomplete return to
democracy. More serious a threat are, however, Islamic extremists. President
Musharraf only narrowly escaped two attempts on his life in December 2003
and the country has suffered a spate of terrorist attacks, all attributed to Islamic
extremist organisations including Al Qaeda.
The general elections that took place in October 2003 also brought to power
for the first time in Pakistans history an alliance of religious parties, the MMA.
* MA, PhD, Barrister-at-Law; Chair, Department of Law, SOAS.
1 See International Crisis Group, Devolution in Pakistan: reform or regression?, ICG Asia
Report No. 77, 22 March 2004 for a critical assessment of the new local government structures.
373
The MMA has been able to form a provincial government in the North Western
Province, constitutes a significant force in the provincial assembly of
Baluchistan and even in the National Assembly it secured 68 seats. Given
President Musharrafs important role in the global war against terror sponsored
by the United States, the presence of Islamic political parties close to the seat
of power creates significant tensions in Pakistans political fabric. There can
be no doubt that the MMAs policies, informed by a desire to Islamise the
legal, economic and cultural life of Pakistan, will be tested in the courts in
due course but so far this has not happened.
The repercussions of the fall of the Taliban and the U.S. led invasion of
Iraq have been felt acutely in Pakistan. Following demands of the United
States, President Musharraf has launched an offensive against the remnants
of the Taliban and Al Qaeda, widely believed to be hiding in and operating
from Pakistans tribal areas. These military campaigns into de facto and de jure
autonomous tribal areas have been deeply unpopular within Islamic circles
and the tribal areas themselves. The Islamic extremists resentment against
Musharraf have been further fuelled by his willingness to reopen the dialogue
with India. Both countries have now agreed to enter talks aimed at resolving
the Kashmir dispute. The border crossings between the two countries have
been reopened and train and bus links have been restored. A test cricket
series between India and Pakistan is just one of the many visible manifestations
of the vastly improved relations between the two countries.
In purely legal terms, the year 2002 must be regarded as uneventful. The
return of the country to democracy was accompanied by unprecedented
legislative activity concerned in large part with the implementation of the
decentralisation programme. Such has been the volume of legislation that
Pakistans main law report, the PLD, had to issue three supplemental volumes
for both 2002 and 2003!
As indicated in last years survey, Pakistans courts have not accepted any
legal challenge to the constitutional legitimacy of the new democratic order
and thus at least from the perspective of Pakistans reported case law the year
2003 has not seen any significant legal developments. The virtual absence of
cases concerning the enforcement of fundamental rights must be regarded
not as a indication of any improvement of Pakistans deeply problematic human
rights credentials but as a reflection of the withering away of judicial activism
from Pakistans legal landscape. The lacunae caused by the decline of public
interest litigation cases is filled with a large number of cases concerning the
employment rights of civil servants. These cases have not been discussed in
any detail given the fact that they involve detailed discussions of civil service
rules and regulations which are of little interest to those not directly affected
by them. Suffice to state that the consistent diet of civil service cases is an
indication of the difficulties inherent in reforming Pakistans civil service and
a reflection of the unease created by the militarisation of public life: during
President Musharrafs direct reign virtually all public authorities of importance
were headed by army officers!
Pakistan
374
The most significant constitutional case of 2003 was concerned with the
constitutional validity of the Legal Framework Order 2002 (LFO). By far
the most controversial aspect of the LFO was the re-introduction of the highly
controversial Article 58 (2) (b) of the Constitution, which allows the President
to dismiss a democratically elected government. The legal challenge against
the LFO was mounted by the Watan Party under Article 184 (3) of the
Constitution. In Watan Party v. Chief Executive/President of Pakistan
2
the Supreme
Court denied locus standi to the Watan Party, holding that Article 184(3) did
allow even a person not directly aggrieved by a violation of a fundamental
right to approach the court. However, this liberalisation of the rules of locus
standi was only permitted in cases where the questions involved affected the
public at large. Perhaps surprisingly, the Supreme Court held that the vires of
the Legal Framework Order ought to be considered by the newly elected
parliament rather than by a court of law. The fact that the newly elected
parliament would come into existence in a process severely affected by the
LFO remained unaddressed.
A similar challenge to the legitimacy of the flawed return to democracy by
the Pakistan Bar Association in the form of a review petition against the decision
of the Supreme Court in Zafar Ali Shahs case
3
ended in confusion with Hamid
Shah, the President of the Pakistan Supreme Court Bar Association, unable
to argue the petition at the appointed time. Instead, an advocate read out a
statement addressed to the Supreme Court. The Supreme Court dismissed
the review petition observing obiter that it:
. . . is high time that counsel like Mr Hamid Khan and members of the Bar should
realise their responsibilities towards the Courts and society as a whole because they
hail from the legal profession which seeks redress of the grievances of the aggrieved
persons from the Courts. If this state of affairs continues then God be with us and
nothing more could be said about it.
4
Indias policy of affirmative action frequently generates headlines and has
given rise to a considerable body of academic literature.
5
The constitutional
validity of reservation of university places to scheduled castes and tribes and
other backward classes is frequently challenged before Indian courts and
the issue is frequently debated in the national press. However, it is commonly
overlooked that Pakistan pursues a very similar policy of affirmative action,
one manifestation of which is the allocation of university places to applicants
from disadvantaged groups. The main difference between Indias and
Pakistans policies is the fact that in Pakistan it is not membership to a particular
social group which qualifies a person to preferential treatment but his or her
residence.
2 PLD 2003 SC 74.
3 PLD 2000 SC 869.
4 Supreme Court Bar Association of Pakistan v. Federation of Pakistan, PLD 2003 SC 82, at 85.
5 See especially Galanter, Marc, Competing Equalities, Law and the Backward Classes in India
(University of California Press, 1984).
Country Surveys
375
In the case of Abdul Baqi v. Muhammad Akram
6
the petitioner challenged
the admissions policy of the Bolan Medical College in Baluchistan as violating
Article 25 of the Constitution which guarantees the fundamental right to
equality. Under the policy 30 per cent of the available places at the college
were reserved to applicants from rural districts in Baluchistan. The Supreme
Court upheld the policy on the ground that this was a reasonable classification
which was based on a reasonable distinction, since applicants from rural districts
were disadvantaged because they suffered from a less congenial educational
atmosphere and facilities.
Issues of discrimination were also at the heart of one of the very few cases
in 2003 which declared a law to be ultra vies the Constitution. In Javed Jabar v.
Federation of Pakistan
7
the petitioners had all stood for elections to the national
and provincial assemblies but had failed to get elected. They subsequently
stood as candidates for elections to the Senate but found themselves
disqualified from standing by the Conduct of General Elections (Eighth
Amendment) Order 2002. In a short order the Supreme Court held the said
Order to be discriminatory and thus in violation of Article 25 of the
Constitution.
3 FAMILY LAW
Despite frequent attacks, the Muslim Family Laws Ordinance 1961 (MFLO)
remains in force and continues to generate decisions that promote the interests
of women. Any lingering doubts about the effect of the decision of the Federal
Shariat Court in Allah Rakah, where some parts of the MFLO were declared
to be repugnant to Islam, can be laid to rest following the decision of the
Supreme Court in Fazeelat Jan v. Sikandar
8
. In that case the Supreme Court
confirmed the continued applicability of section 4 of the MFLO pending the
appeal against the Allah Rakha decision before the Shariat Appellate Bench of
the Supreme Court.
In Muhammad Ishaque v. Manzooran Bibi
9
a wife had granted her husband
permission to take a second wife in accordance with section 3 of the MFLO
which makes the consent of the existing wife or wives an essential requirement
before the arbitration council will permit a polygamous marriage. However,
the first wife had made her consent conditional on the husband agreeing to
pay her monthly maintenance of a stipulated amount and to transfer a shop
into her name. These conditions were recorded in a written agreement. In
breach of the agreement the husband, having entered into the second
marriage, divorced his first wife. She filed a suit petitioning for the specific
performance of the agreement. The District Court refused her petition on
the ground that the agreement was unenforceable since it lacked consideration
and also amounted to the restraint from the exercise of a lawful profession,
6 PLD 2003 SC 163.
7 PLD 2003 SC 955.
8 PLD 2003 SC 475.
9 PLD 2003 SC 126.
Pakistan
376
trade or business as contained in section 27 of the Contract Act 1872. The
Supreme Court disagreed, holding that the agreement was enforceable and
that even in cases where the MFLO conflicts with other statutes the former
would prevail since section 3 of the MFLO provides that, The provisions of
the ordinance shall have effect notwithstanding any law, customs or usage . . .
The long series of cases in which Pakistani courts ignored the provisions of
Islamic law in the custody of children and instead decided that the welfare of
the child normally necessitated that its custody should be awarded to the
mother has been interrupted in the case of Seema Chaudhry v. Ahsan Ashraf
Sheikh.
10
Here the Supreme Court awarded custody of an eight year old boy to
the father rather than the mother following a divorce. This was in accordance
with Islamic law but the Supreme Court was anxious to stress that its decision
was grounded in the considerations of the welfare of the child and not in
Islamic law.
4 COMMERCIAL LAW
The Islamisation of Pakistans financial sector should have lead to the
eradication of interest-based banking. However, in practice many financial
facilities though expressed in the terminology of Islamic finance and expressing
what are effectively interest bearing loans as investments and interest
payments as commissions or mark ups, are in reality ordinary loans. In
American Marbles Products Ltd. v. The Investment Corporation of Pakistan
11
a
company had received a substantial loan expressed in the contractual
documentation as an investment by the Investment Corporation of Pakistan
(ICP) into the company. The company failed to make any payments to the
ICP in breach of the contracts and defended a winding-up petition brought
against it by the ICP on the ground that the monies advanced had been
by way of investment on a share of profit and loss basis. No profits had
been made and thus the ICP was not entitled to any repayment. The Supreme
Court had no hesitation to lift the veil of Islamic finance and to recognise the
underlying commercial reality, namely that there had been an interest-bearing
loan and the company had failed to pay it back. The Supreme Court held that
it was [. . .] unambiguously clear beyond the realm of doubt that the availed
facility by the appellant from the respondent syndicate for all interests and
purposes was a loan fully secured through proper documentation and no
investment simpliciter (at p. 153).
The Supreme Court was equally robust in a case concerning a bank
guarantee. In Shipyard K. Damen International v. Karachi Shipyard
12
a party to a
contract attempted to prevent the other party from cashing in bank guarantees.
To this end, arbitration proceedings commenced as well as various petitions
to the courts, all designed to prevent the guarantees from being cashed. The
matter ended up in the Supreme Court where it was argued by the petitioner
10 PLD 2003 SC 877.
11 PLD 2003 SC 149.
12 PLD 2003 SC 191.
Country Surveys
377
that there was a dispute and that pending the resolution of the dispute the
respondent party should be restrained from cashing in the guarantees. The
Supreme Court rejected this argument and affirmed in emphatic terms that,
in the absence of any special equities and in the absence of any clear fraud,
the bank must pay on demand, if so stipulated . . . The unqualified terms of a
guarantee could not be interfered with by Courts irrespective of the existence
of a dispute.
5 CRIMINAL LAW
The wide interpretation of what crimes amount to acts of terrorism was
continued in the case of State v. Muhammad Shafiq
13
in which a particularly
gruesome murder was tried under the provisions of the Anti-Terrorism Act
1997. The murderer was sentenced to death but unlike a death sentence
awarded under the Penal Code 1860, the same cannot be commuted to life
imprisonment as a result of a pardon or a compromise entered into with the
family of the deceased. The Supreme Court held that it was sufficient for an
act to be regarded as a terrorist act if it had the tendency to create a sense of
fear or insecurity in the minds of the people or any section of society.
The outcome is problematic since it can be argued that any murder would
create a sense of fear in the minds of the people and thus that either all or no
murderers should be tried under the provisions of the Anti-Terrorism Act
1997. Given the vastly reduced procedural rights of an accused under its
provisions
14
and the drastic punishments provided for it must regarded as
problematic if the Act can be applied in an potentially arbitrary manner to
particular incidents of murder. However, the equally problematic practice of
coercing relatives of murder victims to enter into a compromise agreement
with the murderer, thus securing his release, has been stemmed in the case of
Muhammad Arshad v. Additional Sessions Judge
15
where the Supreme Court held
that no compromise will be accepted, the authenticity and genuineness
whereof is not above board and not disputed from any angle (at p. 563).
The threat posed by Al Qaeda has tempted the government to press into
service the provisions of the Security of Pakistan Act 1952 in order to impose
preventive detention orders on those suspected of having links with Islamic
terrorists. In Federation of Pakistan v. Amatul Jalil Khawaja
16
three individuals
challenged the legality of their arrests under preventive detention orders. At
the outset the Supreme Court observed that, . . . our security laws and anti-
terrorism enactments are silent to the effect that Al Qaeda is a terrorist
organisation having its network at global level and is a serious threat to
national/international peace, security and tranquillity. Nevertheless, in a
spirited and robust defence of civil liberties, the Supreme Court quashed the
detention orders holding that such an order has to be based on some evidence
13 PLD 2003 SC 224.
14 For instance section 21L of the Anti-Terrorism Act 1997 allows for a conviction in absentia.
15 PLD 2003 SC 547.
16 PLD 2003 SC 442.
Pakistan
378
or record rather than the subjective satisfaction of the government. In the
absence of such evidence the government could not be said to have been
satisfied that the person concerned constituted a threat to the security of
Pakistan and thus the order for preventive detention could not be maintained.
6 CONCLUSION
There is little doubt that Pakistans legal environment has been deeply marked
by authoritarian rule and a most uneasy transition to democracy. The higher
judiciarys desire to assist President Musharraf in his policies rather than to
challenge him is reflected in the absence of cases concerned with the
enforcement of fundamental rights. Given the most problematic state of
human rights in Pakistan, this is a worrying trend. Civil society and the
international NGO community continue to draw attention to significant
number of human rights abuses perpetrated not just by the government and
the army but also by non-state actors. Large parts of Pakistan remain outside
the view of the world: Pakistans tribal areas can only be entered with a special
permit which is rarely granted to foreign journalists or NGOs and they have
now become a battleground where the Pakistani army, assisted by the United
States, is fighting Al Qaeda and the Taliban. There have been reports of
significant numbers of civilian casualties but in the absence of neutral observers
and an inactive higher judiciary, it is unlikely that executive excesses will be
checked in any way.
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379
Part III
Selected Documents
380
381
Iraq
United Nations Security Council Resolutions
regarding Iraq
RESOLUTION 1483 (2003)
ADOPTED BY THE SECURITY COUNCIL AT ITS 4761
st
MEETING
ON 22 MAY 2003
The Security Council,
Recalling all its previous relevant resolutions,
Reaffirming the sovereignty and territorial integrity of Iraq,
Reaffirming also the importance of the disarmament of Iraqi weapons of mass
destruction and of eventual confirmation of the disarmament of Iraq,
Stressing the right of the Iraqi people freely to determine their own political future
and control their own natural resources, welcoming the commitment of all parties
concerned to support the creation of an environment in which they may do so as soon
as possible, and expressing resolve that the day when Iraqis govern themselves must
come quickly,
Encouraging efforts by the people of Iraq to form a representative government based
on the rule of law that affords equal rights and justice to all Iraqi citizens without
regard to ethnicity, religion, or gender, and, in this connection, recalls resolution 1325
(2000) of 31 October 2000,
Welcoming the first steps of the Iraqi people in this regard, and noting in this connection
the 15 April 2003 Nasiriyah statement and the 28 April 2003 Baghdad statement,
Resolved that the United Nations should play a vital role in humanitarian relief, the
reconstruction of Iraq, and the restoration and establishment of national and local
institutions for representative governance,
Noting the statement of 12 April 2003 by the Ministers of Finance and Central Bank
Governors of the Group of Seven Industrialized Nations in which the members
recognized the need for a multilateral effort to help rebuild and develop Iraq and for
the need for assistance from the International Monetary Fund and the World Bank in
these efforts,
Welcoming also the resumption of humanitarian assistance and the continuing efforts
of the Secretary-General and the specialised agencies to provide food and medicine to
the people of Iraq,
Welcoming the appointment by the Secretary-General of his Special Adviser on Iraq,
2 S/RES/1483 (2003),
Affirming the need for accountability for crimes and atrocities committed by the
previous Iraqi regime,
382
Stressing the need for respect for the archaeological, historical, cultural, and religious
heritage of Iraq, and for the continued protection of archaeological, historical, cultural,
and religious sites, museums, libraries, and monuments,
Noting the letter of 8 May 2003 from the Permanent Representatives of the United
States of America and the United Kingdom of Great Britain and Northern Ireland to
the President of the Security Council (S/2003/538) and recognizing the specific
authorities, responsibilities, and obligations under applicable international law of these
states as occupying powers under unified command (the Authority),
Noting further that other States that are not occupying powers are working now or in
the future may work under the Authority,
Welcoming further the willingness of Member States to contribute to stability and security
in Iraq by contributing personnel, equipment, and other resources under the Authority,
Concerned that many Kuwaitis and Third-State Nationals still are not accounted for
since 2 August 1990,
Determining that the situation in Iraq, although improved, continues to constitute a
threat to international peace and security,
Acting under Chapter VII of the Charter of the United Nations,
(1) Appeals to Member States and concerned organizations to assist the people of Iraq
in their efforts to reform their institutions and rebuild their country, and to
contribute to conditions of stability and security in Iraq in accordance with this
resolution;
(2) Calls upon all Member States in a position to do so to respond immediately to the
humanitarian appeals of the United Nations and other international organizations
for Iraq and to help meet the humanitarian and other needs of the Iraqi people
by providing food, medical supplies, and resources necessary for reconstruction
and rehabilitation of Iraqs economic infrastructure;
(3) Appeals to Member States to deny safe haven to those members of the previous
Iraqi regime who are alleged to be responsible for crimes and atrocities and to
support actions to bring them to justice;
(4) Calls upon the Authority, consistent with the Charter of the United Nations and
other relevant international law, to promote the welfare of the Iraqi people through
the effective administration of the territory, including in particular working towards
the restoration of conditions of security and stability and the creation of conditions
in which the Iraqi people can freely determine their own political future;
(5) Calls upon all concerned to comply fully with their obligations under international
law including in particular the Geneva Conventions of 1949 and the Hague
Regulations of 1907;
(6) Calls upon the Authority and relevant organizations and individuals to continue
efforts to locate, identify, and repatriate all Kuwaiti and Third-State Nationals or
the remains of those present in Iraq on or after 2 August 1990, as well as the
Kuwaiti archives, that the previous Iraqi regime failed to undertake, and, in this
regard, directs the High-Level Coordinator, in consultation with the 3 S/RES/1483
(2003) International Committee of the Red Cross and the Tripartite Commission
and with the appropriate support of the people of Iraq and in coordination with
the Authority, to take steps to fulfil his mandate with respect to the fate of Kuwaiti
and Third-State National missing persons and property;
(7) Decides that all Member States shall take appropriate steps to facilitate the safe
return to Iraqi institutions of Iraqi cultural property and other items of
archaeological, historical, cultural, rare scientific, and religious importance illegally
removed from the Iraq National Museum, the National Library, and other locations
in Iraq since the adoption of resolution 661 (1990) of 6 August 1990, including by
establishing a prohibition on trade in or transfer of such items and items with
Selected Documents
383
respect to which reasonable suspicion exists that they have been illegally removed,
and calls upon the United Nations Educational, Scientific, and Cultural
Organization, Interpol, and other international organizations, as appropriate, to
assist in the implementation of this paragraph;
(8) Requests the Secretary-General to appoint a Special Representative for Iraq whose
independent responsibilities shall involve reporting regularly to the Council on
his activities under this resolution, coordinating activities of the United Nations
in post-conflict processes in Iraq, coordinating among United Nations and
international agencies engaged in humanitarian assistance and reconstruction
activities in Iraq, and, in coordination with the Authority, assisting the people of
Iraq through:
(a) coordinating humanitarian and reconstruction assistance by United Nations
agencies and between United Nations agencies and non-governmental
organizations;
(b) promoting the safe, orderly, and voluntary return of refugees and displaced
persons;
(c) working intensively with the Authority, the people of Iraq, and others
concerned to advance efforts to restore and establish national and local
institutions for representative governance, including by working together to
facilitate a process leading to an internationally recognized, representative
government of Iraq;
(d) facilitating the reconstruction of key infrastructure, in cooperation with other
international organizations;
(e) promoting economic reconstruction and the conditions for sustainable
development, including through coordination with national and regional
organizations, as appropriate, civil society, donors, and the international
financial institutions;
(f) encouraging international efforts to contribute to basic civilian administration
functions;
(g) promoting the protection of human rights;
(h) encouraging international efforts to rebuild the capacity of the Iraqi civilian
police force; and
(i) encouraging international efforts to promote legal and judicial reform;
(9) Supports the formation, by the people of Iraq with the help of the Authority and
working with the Special Representative, of an Iraqi interim administration as a
transitional administration run by Iraqis, until an internationally 4 S/RES/1483
(2003) recognized, representative government is established by the people of Iraq
and assumes the responsibilities of the Authority;
(10) Decides that, with the exception of prohibitions related to the sale or supply to Iraq
of arms and related materiel other than those arms and related materiel required
by the Authority to serve the purposes of this and other related resolutions, all
prohibitions related to trade with Iraq and the provision of financial or economic
resources to Iraq established by resolution 661 (1990) and subsequent relevant
resolutions, including resolution 778 (1992) of 2 October 1992, shall no longer
apply;
(11) Reaffirms that Iraq must meet its disarmament obligations, encourages the United
Kingdom of Great Britain and Northern Ireland and the United States of America
to keep the Council informed of their activities in this regard, and underlines the
intention of the Council to revisit the mandates of the United Nations Monitoring,
Verification, and Inspection Commission and the International Atomic Energy
Agency as set forth in resolutions 687 (1991) of 3 April 1991, 1284 (1999) of 17
December 1999, and 1441 (2002) of 8 November 2002;
Iraq
384
(12) Notes the establishment of a Development Fund for Iraq to be held by the Central
Bank of Iraq and to be audited by independent public accountants approved by
the International Advisory and Monitoring Board of the Development Fund for
Iraq and looks forward to the early meeting of that International Advisory and
Monitoring Board, whose members shall include duly qualified representatives of
the Secretary-General, of the Managing Director of the International Monetary
Fund, of the Director-General of the Arab Fund for Social and Economic
Development, and of the President of the World Bank;
(13) Notes further that the funds in the Development Fund for Iraq shall be disbursed at
the direction of the Authority, in consultation with the Iraqi interim administration,
for the purposes set out in paragraph 14 below;
(14) Underlines that the Development Fund for Iraq shall be used in a transparent
manner to meet the humanitarian needs of the Iraqi people, for the economic
reconstruction and repair of Iraqs infrastructure, for the continued disarmament
of Iraq, and for the costs of Iraqi civilian administration, and for other purposes
benefiting the people of Iraq;
(15) Calls upon the international financial institutions to assist the people of Iraq in the
reconstruction and development of their economy and to facilitate assistance by
the broader donor community, and welcomes the readiness of creditors, including
those of the Paris Club, to seek a solution to Iraqs sovereign debt problems;
(16) Requests also that the Secretary-General, in coordination with the Authority,
continue the exercise of his responsibilities under Security Council resolution
1472 (2003) of 28 March 2003 and 1476 (2003) of 24 April 2003, for a period of
six months following the adoption of this resolution, and terminate within this
time period, in the most cost effective manner, the ongoing operations of the
Oil-for-Food Programme (the Programme), both at headquarters level and in
the field, transferring responsibility for the administration of any remaining activity
under the Programme to the Authority, including by taking the following necessary
measures:
(a) to facilitate as soon as possible the shipment and authenticated delivery of
priority civilian goods as identified by the Secretar y-General and
representatives 5 S/RES/1483 (2003) designated by him, in coordination
with the Authority and the Iraqi interim administration, under approved and
funded contracts previously concluded by the previous Government of Iraq,
for the humanitarian relief of the people of Iraq, including, as necessary,
negotiating adjustments in the terms or conditions of these contracts and
respective letters of credit as set forth in paragraph 4 (d) of resolution 1472
(2003);
(b) to review, in light of changed circumstances, in coordination with the Authority
and the Iraqi interim administration, the relative utility of each approved and
funded contract with a view to determining whether such contracts contain
items required to meet the needs of the people of Iraq both now and during
reconstruction, and to postpone action on those contracts determined to be
of questionable utility and the respective letters of credit until an
internationally recognized, representative government of Iraq is in a position
to make its own determination as to whether such contracts shall be fulfilled;
(c) to provide the Security Council within 21 days following the adoption of this
resolution, for the Security Councils review and consideration, an estimated
operating budget based on funds already set aside in the account established
pursuant to paragraph 8 (d) of resolution 986 (1995) of 14 April 1995,
identifying:
Selected Documents
385
(i) all known and projected costs to the United Nations required to ensure
the continued functioning of the activities associated with
implementation of the present resolution, including operating and
administrative expenses associated with the relevant United Nations
agencies and programmes responsible for the implementation of the
Programme both at Headquarters and in the field;
(ii) all known and projected costs associated with termination of the
Programme;
(iii) all known and projected costs associated with restoring Government of
Iraq funds that were provided by Member States to the Secretary-General
as requested in paragraph 1 of resolution 778 (1992); and
(iv) all known and projected costs associated with the Special Representative
and the qualified representative of the Secretary-General identified to
serve on the International Advisory and Monitoring Board, for the six
month time period defined above, following which these costs shall be
borne by the United Nations;
(d) to consolidate into a single fund the accounts established pursuant to
paragraphs 8 (a) and 8 (b) of resolution 986 (1995);
(e) to fulfil all remaining obligations related to the termination of the Programme,
including negotiating, in the most cost effective manner, any necessary
settlement payments, which shall be made from the escrow accounts
established pursuant to paragraphs 8 (a) and 8 (b) of resolution 986 (1995),
with those parties that previously have entered into contractual obligations
with the Secretary-General under the Programme, and to determine, in
coordination with the Authority and the Iraqi interim administration, the
future status of contracts undertaken by the United Nations and related United
Nations agencies under the accounts established pursuant to paragraphs 8
(b) and 8 (d) of resolution 986 (1995);
(f) to provide the Security Council, 30 days prior to the termination of the
Programme, with a comprehensive strategy developed in close coordination
with the Authority and the Iraqi interim administration that would lead to
the delivery of all 6 S/RES/1483 (2003) relevant documentation and the
transfer of all operational responsibility of the Programme to the Authority;
(17) Requests further that the Secretary-General transfer as soon as possible to the
Development Fund for Iraq 1 billion United States dollars from unencumbered
funds in the accounts established pursuant to paragraphs 8 (a) and 8 (b) of
resolution 986 (1995), restore Government of Iraq funds that were provided by
Member States to the Secretary-General as requested in paragraph 1 of resolution
778 (1992), and decides that, after deducting all relevant United Nations expenses
associated with the shipment of authorized contracts and costs to the Programme
outlined in paragraph 16 (c) above, including residual obligations, all surplus
funds in the escrow accounts established pursuant to paragraphs 8 (a), 8 (b), 8
(d), and 8 (f) of resolution 986 (1995) shall be transferred at the earliest possible
time to the Development Fund for Iraq;
(18) Decides to terminate effective on the adoption of this resolution the functions
related to the observation and monitoring activities undertaken by the Secretary-
General under the Programme, including the monitoring of the export of
petroleum and petroleum products from Iraq;
(19) Decides to terminate the Committee established pursuant to paragraph 6 of
resolution 661 (1990) at the conclusion of the six month period called for in
paragraph 16 above and further decides that the Committee shall identify individuals
and entities referred to in paragraph 23 below;
Iraq
386
(20) Decides that all export sales of petroleum, petroleum products, and natural gas
from Iraq following the date of the adoption of this resolution shall be made
consistent with prevailing international market best practices, to be audited by
independent public accountants reporting to the International Advisory and
Monitoring Board referred to in paragraph 12 above in order to ensure
transparency, and decides further that, except as provided in paragraph 21 below,
all proceeds from such sales shall be deposited into the Development Fund for
Iraq until such time as an internationally recognized, representative government
of Iraq is properly constituted;
(21) Decides further that 5 per cent of the proceeds referred to in paragraph 20 above
shall be deposited into the Compensation Fund established in accordance with
resolution 687 (1991) and subsequent relevant resolutions and that, unless an
internationally recognized, representative government of Iraq and the Governing
Council of the United Nations Compensation Commission, in the exercise of its
authority over methods of ensuring that payments are made into the Compensation
Fund, decide otherwise, this requirement shall be binding on a properly
constituted, internationally recognized, representative government of Iraq and
any successor thereto;
(22) Noting the relevance of the establishment of an internationally recognized,
representative government of Iraq and the desirability of prompt completion of
the restructuring of Iraqs debt as referred to in paragraph 15 above, further decides
that, until 31 December 2007, unless the Council decides otherwise, petroleum,
petroleum products, and natural gas originating in Iraq shall be immune, until
title passes to the initial purchaser from legal proceedings against them and not
be subject to any form of attachment, garnishment, or execution, and that all
States shall take any steps that may be necessary under their respective domestic
legal systems to assure this protection, and that proceeds and obligations arising
from sales thereof, as well as the Development Fund for Iraq, shall enjoy privileges
and 7 S/RES/1483 (2003) immunities equivalent to those enjoyed by the United
Nations except that the above-mentioned privileges and immunities will not apply
with respect to any legal proceeding in which recourse to such proceeds or
obligations is necessary to satisfy liability for damages assessed in connection with
an ecological accident, including an oil spill, that occurs after the date of adoption
of this resolution;
(23) Decides that all Member States in which there are:
(a) funds or other financial assets or economic resources of the previous
Government of Iraq or its state bodies, corporations, or agencies, located
outside Iraq as of the date of this resolution, or
(b) funds or other financial assets or economic resources that have been removed
from Iraq, or acquired, by Saddam Hussein or other senior officials of the
former Iraqi regime and their immediate family members, including entities
owned or controlled, directly or indirectly, by them or by persons acting on
their behalf or at their direction, shall freeze without delay those funds or
other financial assets or economic resources and, unless these funds or other
financial assets or economic resources are themselves the subject of a prior
judicial, administrative, or arbitral lien or judgement, immediately shall cause
their transfer to the Development Fund for Iraq, it being understood that,
unless otherwise addressed, claims made by private individuals or non-
government entities on those transferred funds or other financial assets may
be presented to the internationally recognized, representative government
of Iraq; and decides further that all such funds or other financial assets or
economic resources shall enjoy the same privileges, immunities, and
protections as provided under paragraph 22;
Selected Documents
387
(24) Requests the Secretary-General to report to the Council at regular intervals on the
work of the Special Representative with respect to the implementation of this
resolution and on the work of the International Advisory and Monitoring Board
and encourages the United Kingdom of Great Britain and Northern Ireland and
the United States of America to inform the Council at regular intervals of their
efforts under this resolution;
(25) Decides to review the implementation of this resolution within twelve months of
adoption and to consider further steps that might be necessary;
(26) Calls upon Member States and international and regional organizations to
contribute to the implementation of this resolution;
(27) Decides to remain seized of this matter.
th
MEETING
ON 14 AUGUST 2003
Recalling all its previous relevant resolutions, in particular resolution 1483 (2003) of
22 May 2003,
Reaffirming the sovereignty and territorial integrity of Iraq,
Reaffirming also the vital role for the United Nations in Iraq which was set out in
relevant paragraphs of resolution 1483 (2003),
Having considered the report of the Secretary-General of 15 July 2003 (S/2003/715),
(1) Welcomes the establishment of the broadly representative Governing Council of
Iraq on 13 July 2003, as an important step towards the formation by the people of
Iraq of an internationally recognized, representative government that will exercise
the sovereignty of Iraq;
(2) Decides to establish the United Nations Assistance Mission for Iraq to support the
Secretary-General in the fulfilment of his mandate under resolution 1483 in
accordance with the structure and responsibilities set out in his report of 15 July
2003, for an initial period of twelve months;
(3) Decides to remain seized of this matter.
ADOPTED BY THE SECURITY COUNCIL AT ITS MEETING
ON 16 OCTOBER 2003
Reaffirming its previous resolutions on Iraq, including resolution 1483 (2003) of 22
May 2003 and 1500 (2003) of 14 August 2003, and on threats to peace and security
caused by terrorist acts, including resolution 1373 (2001) of 28 September 2001, and
other relevant resolutions,
Underscoring that the sovereignty of Iraq resides in the State of Iraq, reaffirming the
right of the Iraqi people freely to determine their own political future and control
their own natural resources, reiterating its resolve that the day when Iraqis govern
themselves must come quickly, and recognizing the importance of international support,
particularly that of countries in the region, Iraqs neighbours, and regional
organizations, in taking forward this process expeditiously,
Iraq
388
Recognizing that international support for restoration of conditions of stability and
security is essential to the well-being of the people of Iraq as well as to the ability of all
concerned to carry out their work on behalf of the people of Iraq, and welcoming
Member State contributions in this regard under resolution 1483 (2003),
Welcoming the decision of the Governing Council of Iraq to form a preparatory
constitutional committee to prepare for a constitutional conference that will draft a
constitution to embody the aspirations of the Iraqi people, and urging it to complete
this process quickly,
Affirming that the terrorist bombings of the Embassy of Jordan on 7 August 2003, of
the United Nations headquarters in Baghdad on 19 August 2003, of the Imam Ali
Mosque in Najaf on 29 August 2003, and of the Embassy of Turkey on 14 October 2003,
and the murder of a Spanish diplomat on 9 October 2003 are attacks on the people of
Iraq, the United Nations, and the international community, and deploring the
assassination of Dr. Akila al-Hashimi, who died on 25 September 2003, as an attack
directed against the future of Iraq,
In that context, recalling and reaffirming the statement of its President of 20 August
2003 (S/PRST/2003/13) and resolution 1502 (2003) of 26 August 2003,
Determining that the situation in Iraq, although improved, continues to constitute a
threat to international peace and security,
(1) Reaffirms the sovereignty and territorial integrity of Iraq, and underscores, in that
context, the temporary nature of the exercise by the Coalition Provisional Authority
(Authority) of the specific responsibilities, authorities, and obligations under
applicable international law recognized and set forth in resolution 1483 (2003)
which will cease when an internationally recognized representative government
established by the people of Iraq is sworn in and assumes the responsibilities of
the Authority, inter alia through steps envisaged in paragraphs 4 through 7 and 10
below:
(2) Welcomes the positive response of the international community, in form, such as
the Arab League, the Organization of the Islamic Conference, the United Nations
General Assembly, and the United Nations Educational, Scientific and Cultural
Organization, to the establishment of the broadly representative Governing
Council as all important step towards an internationally recognized, representative
government;
(3) Supports the Governing Councils efforts to mobilize the people of Iraq, including
by the appointment of a cabinet of ministers and a preparatory constitutional
committee to lead a process in which the Iraqi people will progressively take control
of their own affairs;
(4) Determines that the Governing Council and its ministers are the principal bodies of
the Iraqi interim administration, which, without prejudice to its further evolution,
embodies the sovereignty of the State of Iraq during the transitional period until
an internationally recognized, representative government is established and
assumes the responsibilities of the Authority;
(5) Affirms that the administration of Iraq will be progressively undertaken by the
evolving structures of the Iraqi interim administration;
(6) Calls upon the Authority, in this context, to return governing responsibilities and
authorities to the people of Iraq as soon as practicable and requests the Authority,
in cooperation as appropriate with the Governing Council and the Secretary-
General, to report to the Council on the progress being made;
(7) Invites the Governing Council to provide to the Security Council, for its review, no
later than 15 December 2003, in cooperation with the Authority and, as
circumstances permit, the Special Representative of the Secretary-General, a
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389
timetable and a programme for the drafting of a new constitution for Iraq and for
the holding of democratic elections under that constitution;
(8) Resolves that the United Nations, acting through the Secretary-General, his Special
Representative, and the United Nations Assistance Mission in Iraq, should
strengthen its vital role in Iraq, including by providing humanitarian relief,
promoting the economic reconstruction of and conditions for sustainable
development in Iraq, and advancing efforts to restore and establish national and
local institutions for representative government;
(9) Requests that, as circumstances permit, the Secretary-General pursue the course of
action outlined in paragraphs 98 and 99 of the report of the Secretary-General of
17 July 2003 (S/2003/715);
(10) Takes note of the intention of the Governing Council to hold a constitutional
conference and, recognizing that the convening of the conference will be a
milestone in the movement to the full exercise of sovereignty, calls for its
preparation through national dialogue and consensus-building as soon as
practicable and requests the Special Representative of the Secretary-General, at
the time of the convening of the conference or, as circumstances permit, to lend
the unique expertise of the United Nations to the Iraqi people in this process of
political transition, including the establish establishment of electoral processes;
(11) Requests the Secretary-General to ensure that the resources of the United Nations
and associated organizations are available, if requested by the Iraqi Governing
Council and, as circumstances permit, to assist in furtherance of the programme
provided by the Governing Council in paragraph 7 above, and encourages other
organizations with expertise in this area to support the Iraqi Governing Council,
if requested;
(12) Requests the Secretary-General to report to the Security Council on his responsi-
bilities under this resolution and the development and implementation of a
timetable and programme under paragraph 7 above;
(13) Determines that the provision of security and stability is essential to the successful
completion of the political process as outlined in paragraph 7 above and to the
ability of the United Nations to contribute effectively to that process and the
implementation of resolution 1483 (2003), and authorizes a multinational force
under unified command to take all necessary measures to contribute to the
maintenance of security and stability in Iraq, including for the purpose of ensuring
necessary conditions for the implementation of the timetable and programme as
well as to contribute to the security of the United Nations Assistance Mission for
Iraq, the Governing Council of Iraq and other institutions of the Iraqi interim
administration, and key humanitarian and economic infrastructure;
(14) Urges Member States to contribute assistance under this United Nations inundate,
including military forces, to the multinational force referred to in paragraph 13
above;
(15) Decides that the Council shall review the requirements and mission of the
multinational force referred to in paragraph 13 above not later than one year
from the date of this resolution, and that in any case the mandate of the force
shall expire upon the completion of the political process as described in paragraphs
4 through 7 and 10 above, and expresses readiness to consider on that occasion
any future need for the continuation of the multinational force, taking into account
the views of an internationally recognized, representative government of Iraq;
(16) Emphasizes the importance of establishing effective Iraqi police and security forces
in maintaining law, order, and security and combating terrorism consistent with
paragraph 4 of resolution 1483 (2003), and calls upon Member States and
international and regional organizations to contribute to the training and
equipping of Iraqi police and security forces;
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390
(17) Expresses deep sympathy and condolences for the personal losses suffered by the
Iraqi people and by the United Nations and the families of those United Nations
personnel and other innocent victims who are killed or injured in these tragic
attacks;
(18) Unequivocally condemns the terrorist bombings of the Embassy of Jordan on 7 August
2003, of the United Nations headquarters in Baghdad on 19 August 2003, and of
the Imam Ali Mosque in Najaf on 29 August 2003, and of the Embassy of Turkey
on 14 October 2003, the murder of a Spanish diplomat on 9 October 2003, and
the assassination of Dr. Akila al-Hashimi, who died on 25 September 2003, and
emphasizes that those responsible must be brought to justice;
(19) Calls upon Member States to prevent the transit of terrorist to Iraq, arms for
terrorists, and financing that would support terrorists, and emphasizes the
importance of strengthening the cooperation of the countries of the region,
particularly neighbours of Iraq, in this regard;
(20) Appeals to Member States and the international financial institutions to strengthen
their efforts to assist the people of Iraq in the reconstruction and development of
their economy, and urges those institutions to take immediate steps to provide
their full range of loans and other financial assistance to Iraq, Working with the
Governing Council and appropriate Iraqi ministries;
(21) Urges Member States and international and regional organizations to support the
Iraq reconstruction effort initiated at the 24 June 2003 United Nations Technical
Consultations, including through substantial pledges at the 23-24 October 2003
International Donors Conference in Madrid;
(22) Calls upon Member States and concerned organizations to help meet the needs of
the Iraqi people by providing resources necessary for the rehabilitation and
reconstruction of Iraqs economic infrastructure;
(23) Emphasizes that the International Advisory and Monitoring Board IAMB referred
to in paragraph 12 of resolution 1483 (2003) should be established as a priority,
and reiterates that the Development Fund for Iraq shall be used in a transparent
manner as set out in paragraph 14 of resolution 1483 (2003);
(24) Reminds all Member States of their obligations under paragraphs 19 and 23 of
resolution 1483 (2003) in particular the obligation to immediately cause the
transfer of funds, other financial assets and economic resources to the Development
Fund for Iraq for the benefit of the Iraqi people;
(25) Requests that the United States, on behalf of the multinational force as outlined in
paragraph 13 above, report to the Security Council on the efforts and progress of
this force as appropriate and not less than every six months;
(26) Decides to remain seized of the matter.
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RESOLUTION S/RES/1546 (2004)
th
MEETING
ON 8 JUNE 2004
Welcoming the beginning of a new phase in Iraqs transition to a democratically elected
government, and looking forward to the end of the occupation and the assumption of
full responsibility and authority by a fully sovereign and independent Interim
Government of Iraq by 30 June 2004,
Recalling all of its previous relevant resolutions on Iraq,
Reaffirming the independence, sovereignty, unity, and territorial integrity of Iraq,
Reaffirming also the right of the Iraqi people freely to determine their own political
future and control their own natural resources,
Recognizing the importance of international support, particularly that of countries in
the region, Iraqs neighbours, and regional organizations, for the people of Iraq in
their efforts to achieve security and prosperity, and noting that the successful
implementation of this resolution will contribute to regional stability,
Welcoming the efforts of the Special Adviser to the Secretary-General to assist the
people of Iraq in achieving the formation of the Interim Government of Iraq, as set out
in the letter of the Secretary-General of 7 June 2004 (S/2004/461),
Taking note of the dissolution of the Governing Council of Iraq, and welcoming the
progress made in implementing the arrangements for Iraqs political transition referred
to in resolution 1511 (2003) of 16 October 2003,
Welcoming the commitment of the Interim Government of Iraq to work towards a
federal, democratic, pluralist, and unified Iraq, in which there is full respect for political
and human rights,
Stressing the need for all parties to respect and protect Iraqs archaeological, historical,
cultural, and religious heritage,
Affirming the importance of the rule of law, national reconciliation, respect for human
rights including the rights of women, fundamental freedoms, and democracy including
free and fair elections,
Recalling the establishment of the United Nations Assistance Mission for Iraq
(UNAMI) on 14 August 2003, and affirming that the United Nations should play a
leading role in assisting the Iraqi people and government in the formation of institutions
for representative government,
Recognizing that international support for restoration of stability and security is
essential to the well being of the people of Iraq as well as to the ability of all concerned
to carry out their work on behalf of the people of Iraq, and welcoming Member State
contributions in this regard under resolution 1483 (2003) of 22 May 2003 and resolution
1511 (2003),
Recalling the report provided by the United States to the Security Council on 16
April 2004 on the efforts and progress made by the multinational force,
Recognizing the request conveyed in the letter of 5 June 2004 from the Prime Minister
of the Interim Government of Iraq to the President of the Council, which is annexed to
this resolution, to retain the presence of the multinational force,
Recognizing also the importance of the consent of the sovereign Government of Iraq
for the presence of the multinational force and of close coordination between the
multinational force and that government,
Welcoming the willingness of the multinational force to continue efforts to contribute
to the maintenance of security and stability in Iraq in support of the political transition,
especially for upcoming elections, and to provide security for the United Nations
presence in Iraq, as described in the letter of 5 June 2004 from the United States
Secretary of State to the President of the Council, which is annexed to this resolution,
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392
Noting the commitment of all forces promoting the maintenance of security and
stability in Iraq to act in accordance with international law, including obligations under
international humanitarian law, and to cooperate with relevant international
organizations,
Affirming the importance of international assistance in reconstruction and
development of the Iraqi economy,
Recognizing the benefits to Iraq of the immunities and privileges enjoyed by Iraqi oil
revenues and by the Development Fund for Iraq, and noting the importance of providing
for continued disbursements of this fund by the Interim Government of Iraq and its
successors upon dissolution of the Coalition Provisional Authority,
Determining that the situation in Iraq continues to constitute a threat to international
peace and security,
(1) Endorses the formation of a sovereign Interim Government of Iraq, as presented
on 1 June 2004, which will assume full responsibility and authority by 30 June
2004 for governing Iraq while refraining from taking any actions affecting Iraqs
destiny beyond the limited interim period until an elected Transitional
Government of Iraq assumes office as envisaged in paragraph four below;
(2) Welcomes that, also by 30 June 2004, the occupation will end and the Coalition
Provisional Authority will cease to exist, and that Iraq will reassert its full sovereignty;
(3) Reaffirms the right of the Iraqi people freely to determine their own political future
and to exercise full authority and control over their financial and natural resources;
(4) Endorses the proposed timetable for Iraqs political transition to democratic
government including:
(a) formation of the sovereign Interim Government of Iraq that will assume
governing responsibility and authority by 30 June 2004;
(b) convening of a national conference reflecting the diversity of Iraqi society;
and
(c) holding of direct democratic elections by 31 December 2004 if possible, and
in no case later than 31 January 2005, to a Transitional National Assembly,
which will, inter alia, have responsibility for forming a Transitional Government
of Iraq and drafting a permanent constitution for Iraq leading to a
constitutionally elected government by 31 December 2005;
(5) Invites the Government of Iraq to consider how the convening of an international
meeting could support the above process, and notes that it would welcome such a
meeting to support the Iraqi political transition and Iraqi recovery, to the benefit
of the Iraqi people and in the interest of stability in the region;
(6) Calls on all Iraqis to implement these arrangements peaceably and in full, and on
all States and relevant organizations to support such implementation;
(7) Decides that in implementing, as circumstances permit, their mandate to assist the
Iraqi people and government, the Special Representative of the Secretary- General
and the United Nations Assistance Mission for Iraq (UNAMI), as requested by the
Government of Iraq, shall:
(a) play a leading role to:
(i) assist in the convening, during the month of July 2004, of a national
conference to select a Consultative Council;
(ii) advise and support the Independent Electoral Commission of Iraq, as
well as the Interim Government of Iraq and the Transitional National
Assembly, on the process for holding elections;
(iii) promote national dialogue and consensus-building on the drafting of a
national constitution by the people of Iraq;
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(b) and also:
(i) advise the Government of Iraq in the development of effective civil and
social services;
(ii) contribute to the coordination and deliver y of reconstruction,
development, and humanitarian assistance;
(iii) promote the protection of human rights, national reconciliation, and
judicial and legal reform in order to strengthen the rule of law in Iraq;
and
(iv) advise and assist the Government of Iraq on initial planning for the
eventual conduct of a comprehensive census;
(8) Welcomes ongoing efforts by the incoming Interim Government of Iraq to develop
Iraqi security forces including the Iraqi armed forces (hereinafter referred to as
Iraqi security forces), operating under the authority of the Interim Government
of Iraq and its successors, which will progressively play a greater role and ultimately
assume full responsibility for the maintenance of security and stability in Iraq;
(9) Notes that the presence of the multinational force in Iraq is at the request of the
incoming Interim Government of Iraq and therefore reaffirms the authorization
for the multinational force under unified command established under resolution
1511 (2003), having regard to the letters annexed to this resolution;
(10) Decides that the multinational force shall have the authority to take all necessary
measures to contribute to the maintenance of security and stability in Iraq in
accordance with the letters annexed to this resolution expressing, inter alia, the
Iraqi request for the continued presence of the multinational force and setting
out its tasks, including by preventing and deterring terrorism, so that, inter alia,
the United Nations can fulfil its role in assisting the Iraqi people as outlined in
paragraph seven above and the Iraqi people can implement freely and without
intimidation the timetable and programme for the political process and benefit
from reconstruction and rehabilitation activities;
(11) Welcomes, in this regard, the letters annexed to this resolution stating, inter alia,
that arrangements are being put in place to establish a security partnership between
the sovereign Government of Iraq and the multinational force and to ensure
coordination between the two, and notes also in this regard that Iraqi security
forces are responsible to appropriate Iraqi ministers, that the Government of Iraq
has authority to commit Iraqi security forces to the multinational force to engage
in operations with it, and that the security structures described in the letters will
serve as the fora for the Government of Iraq and the multinational force to reach
agreement on the full range of fundamental security and policy issues, including
policy on sensitive offensive operations, and will ensure full partnership between
Iraqi security forces and the multinational force, through close coordination and
consultation;
(12) Decides further that the mandate for the multinational force shall be reviewed at
the request of the Government of Iraq or 12 months from the date of this
resolution, and that this mandate shall expire upon the completion of the political
process set out in paragraph four above, and declares that it will terminate this
mandate earlier if requested by the Government of Iraq;
(13) Notes the intention, set out in the annexed letter from the United States Secretary
of State, to create a distinct entity under unified command of the multinational
force with a dedicated mission to provide security for the United Nations presence
in Iraq, recognizes that the implementation of measures to provide security for
staff members of the United Nations system working in Iraq would require
significant resources, and calls upon Member States and relevant organizations to
provide such resources, including contributions to that entity;
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394
(14) Recognizes that the multinational force will also assist in building the capability of
the Iraqi security forces and institutions, through a programme of recruitment,
training, equipping, mentoring, and monitoring;
(15) Requests Member States and international and regional organizations to contribute
assistance to the multinational force, including military forces, as agreed with the
Government of Iraq, to help meet the needs of the Iraqi people for security and
stability, humanitarian and reconstruction assistance, and to support the efforts
of UNAMI;
(16) Emphasises the importance of developing effective Iraqi police, border enforcement,
and the Facilities Protection Service, under the control of the Interior Ministry of
Iraq, and, in the case of the Facilities Protection Service, other Iraqi ministries,
for the maintenance of law, order, and security, including combating terrorism,
and requests Member States and international organizations to assist the
Government of Iraq in building the capability of these Iraqi institutions;
(17) Condemns all acts of terrorism in Iraq, reaffirms the obligations of Member States
under resolutions 1373 (2001) of 28 September 2001, 1267 (1999) of 15 October
1999, 1333 (2000) of 19 December 2000, 1390 (2002) of 16 January 2002, 1455
(2003) of 17 January 2003, and 1526 (2004) of 30 January 2004, and other relevant
international obligations with respect, inter alia, to terrorist activities in and from
Iraq or against its citizens, and specifically reiterates its call upon Member States
to prevent the transit of terrorists to and from Iraq, arms for terrorists, and
financing that would support terrorists, and re-emphasizes the importance of
strengthening the cooperation of the countries of the region, particularly
neighbours of Iraq, in this regard;
(18) Recognizes that the Interim Government of Iraq will assume the primary role in
coordinating international assistance to Iraq;
(19) Welcomes efforts by Member States and international organizations to respond in
support of requests by the Interim Government of Iraq to provide technical and
expert assistance while Iraq is rebuilding administrative capacity;
(20) Reiterates its request that Member States, international financial institutions and
other organizations strengthen their efforts to assist the people of Iraq in the
reconstruction and development of the Iraqi economy, including by providing
international experts and necessary resources through a coordinated programme
of donor assistance;
(21) Decides that the prohibitions related to the sale or supply to Iraq of arms and
related materiel under previous resolutions shall not apply to arms or related
materiel required by the Government of Iraq or the multinational force to serve
the purposes of this resolution, stresses the importance for all States to abide
strictly by them, and notes the significance of Iraqs neighbours in this regard,
and calls upon the Government of Iraq and the multinational force each to ensure
that appropriate implementation procedures are in place;
(22) Notes that nothing in the preceding paragraph affects the prohibitions on or
obligations of States related to items specified in paragraphs 8 and 12 of resolution
687 (1991) of 3 April 1991 or activities described in paragraph 3 (f) of resolution
707 (1991) of 15 August 1991, and reaffirms its intention to revisit the mandates
of the United Nations Monitoring, Verification, and Inspection Commission and
the International Atomic Energy Agency;
(23) Calls on Member States and international organizations to respond to Iraqi requests
to assist Iraqi efforts to integrate Iraqi veterans and former militia members into
Iraqi society;
(24) Notes that, upon dissolution of the Coalition Provisional Authority, the funds in
the Development Fund for Iraq shall be disbursed solely at the direction of the
Government of Iraq, and decides that the Development Fund for Iraq shall be
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utilised in a transparent and equitable manner and through the Iraqi budget
including to satisfy outstanding obligations against the Development Fund for
Iraq, that the arrangements for the depositing of proceeds from export sales of
petroleum, petroleum products, and natural gas established in paragraph 20 of
resolution 1483 (2003) shall continue to apply, that the International Advisory
and Monitoring Board shall continue its activities in monitoring the Development
Fund for Iraq and shall include as an additional full voting member a duly qualified
individual designated by the Government of Iraq and that appropriate
arrangements shall be made for the continuation of deposits of the proceeds
referred to in paragraph 21 of resolution 1483 (2003);
(25) Decides further that the provisions in the above paragraph for the deposit of
proceeds into the Development Fund for Iraq and for the role of the IAMB shall
be reviewed at the request of the Transitional Government of Iraq or 12 months
from the date of this resolution, and shall expire upon the completion of the
political process set out in paragraph four above;
(26) Decides that, in connection with the dissolution of the Coalition Provisional
Authority, the Interim Government of Iraq and its successors shall assume the
rights, responsibilities and obligations relating to the Oil-for-Food Programme
that were transferred to the Authority, including all operational responsibility for
the Programme and any obligations undertaken by the Authority in connection
with such responsibility, and responsibility for ensuring independently
authenticated confirmation that goods have been delivered, and further decides
that, following a 120-day transition period from the date of adoption of this resolu-
tion, the Interim Government of Iraq and its successors shall assume responsibility
for certifying delivery of goods under previously prioritised contracts, and that
such certification shall be deemed to constitute the independent authentication
required for the release of funds associated with such contracts, consulting as
appropriate to ensure the smooth implementation of these arrangements;
(27) Further decides that the provisions of paragraph 22 of resolution 1483 (2003) shall
continue to apply, except that the privileges and immunities provided in that
paragraph shall not apply with respect to any final judgment arising out of a
contractual obligation entered into by Iraq after 30 June 2004;
(28) Welcomes the commitments of many creditors, including those of the Paris Club, to
identify ways to reduce substantially Iraqs sovereign debt, calls on Member States,
as well as internationa1 and regional organizations, to support the Iraq
reconstruction effort, urges the international financial institutions and bilateral
donors to take the immediate steps necessary to provide their full range of loans
and other financial assistance and arrangements to Iraq, recognizes that the Interim
Government of Iraq will have the authority to conclude and implement such
agreements and other arrangements as may be necessary in this regard, and
requests creditors, institutions and donors to work as a priority on these matters
with the Interim Government of Iraq and its successors;
(29) Recalls the continuing obligations of Member States to freeze and transfer certain
funds, assets, and economic resources to the Development Fund for Iraq in
accordance with paragraphs 19 and 23 of resolution 1483 (2003) and with
resolution 1518 (2003) of 24 November 2003;
(30) Requests the Secretary-General to report to the Council within three months from
the date of this resolution on UNAMI operations in Iraq, and on a quarterly basis
thereafter on the progress made towards national elections and fulfilment of all
UNAMIs responsibilities;
(31) Requests that the United States, on behalf of the multinational force, report to the
Council within three months from the date of this resolution on the efforts and
progress of this force, and on a quarterly basis thereafter;
(32) Decides to remain actively seized of the matter.
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ANNEX
Text of letters from the Prime Minister of the Interim Government of Iraq Dr. Ayad
Allawi, and United States Secretary of State Colin L. Powell, to the President of the
Security Council
5 June 2004
Republic of Iraq
Prime Minister Office
His Excellency Mr. Lauro L. Baja, Jr.
President of the Security Council, United Nations
New York, New York
Excellency:
On my appointment as Prime Minister of the Interim Government of Iraq, I am writing
to express the commitment of the people of Iraq to complete the political transition
process to establish a free, and democratic Iraq and to be a partner in preventing and
combating terrorism. As we enter a critical new stage, regain full sovereignty and move
towards elections, we will need the assistance of the international community.
The Interim Government of Iraq will make every effort to ensure that these elections
are fully democratic, free and fair. Security and stability continue to be essential to our
political transition. There continue, however, to be forces in Iraq, including foreign
elements, that are opposed to our transition to peace, democracy, and security. The
Government is determined to overcome these forces, and to develop security forces
capable of providing adequate security for the Iraqi people.
Until we are able to provide security for ourselves, including the defence of Iraqs
land, sea and air space, we ask for the support of the Security Council and the
international community in this endeavour. We seek a new resolution on the
Multinational Force (MNF) mandate to contribute to maintaining security in Iraq,
including through the tasks and arrangements set out in the letter from Secretary of
State Colin Powell to the President of the United Nations Security Council. The
Government requests that the Security Council review the mandate of the MNF at the
request of the Transitional Government of Iraq, or twelve months from the date on
which such a resolution is adopted.
In order to discharge the Iraqi Governments responsibility for security, I intend to
establish appropriate security structures that will allow my Government and Iraqi security
forces to progressively take on that responsibility. One such structure is the Ministerial
Committee for National Security, consisting of myself as the Chair, the Deputy Prime
Minister, and the Minister of Defense, Interior, Foreign Affairs, Justice, and Finance.
The National Security Advisor, and Director of the Iraqi National Intelligence Service
will serve as permanent advisory members of the committee. This forum will set the
broad framework for Iraqi security policy. I intend to invite, as appropriate, the MNF
commander, his Deputy, or the MNF Commanders designative representative, and
other appropriate individuals, to attend and participate as well, and will stand ready to
discuss mechanisms of coordination and cooperation with the MNF. Iraqi armed forces
will be responsible to the Chief of Staff and Minister of Defense. Other security forces
(the Iraqi police, border guards and Facilities Protection Service) will be responsible
to the Minister of the Interior or other government ministers.
In addition, the relevant ministers and I will develop further mechanisms for
coordination with the MNF. Intend to create with the MNF coordination bodies at
national, regional, and local levels, that will include Iraqi security forces commanders
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and civilian leadership, to ensure that Iraqi security forces will coordinate with the
MNF on all security policy and operations issues in order to achieve unity of command
of military operations in which Iraqi forces are engaged with MNF. In addition, the
MNF and Iraqi government leaders will keep each other informed of their activities,
consult regularly to ensure effective allocation and use of personnel, resources and
facilities, will share intelligence, and will refer issues up the respective chains of command
where necessary, Iraqi security forces will take on progressively greater responsibility as
Iraqi capabilities improve.
The structures I have described in this letter will serve as the fora for the MNF and
the Iraqi Government to reach agreement on the full range of fundamental security
and policy issues, including policy on sensitive offensive operations, and will ensure
full partnership between Iraqi forces and the MNF, through close coordination and
consultation. Since these are sensitive issues for a number of sovereign governments,
including Iraq and the United States, they need to be resolved in the framework of a
mutual understanding on our strategic partnership. We will be working closely with
the MNF leadership in the coming weeks to ensure that we have such an agreed strategic
framework.
We are ready to take sovereign responsibility for governing Iraq by June 30. We are
well aware of the difficulties facing us, and of our responsibilities to the Iraqi people.
The stakes are great, and we need the support of the international community to succeed.
We ask the Security Council to help us by acting now to adopt a Security Council
resolution giving us necessary support.
I understand that the co-sponsors intend to annex this letter to the resolution on
Iraq under consideration. In the meantime, I request that you provide copies of this
letter to members of the Council as quickly as possible.
(Signed) Dr. Ayad Allawi
The Secretary of State
Washington
5 June 2004
His Excellency Mr. Lauro L. Baja, Jr.
President of the Security Council, United Nations
New York, New York
Excellency:
Recognizing the request of the government of Iraq for the continued presence of the
Multinational Force (MNF) in Iraq, and following consultations with Prime Minister
Ayad Allawi of the Iraqi Interim Government, I am writing to confirm that the MNF
under unified command is prepared to continue to contribute to the maintenance of
security in Iraq, including by preventing and deterring terrorism and protecting the
territory of Iraq. The goal of the MNF will be to help the Iraqi people to complete the
political transition and will permit the United Nations and the international community
to work to facilitate Iraqs reconstruction.
The ability of the Iraqi people to achieve their goals will be heavily influenced by the
security situation in Iraq. As recent events have demonstrated, continuing attacks by
insurgents, including former regime elements, foreign fighters, and illegal militias
challenge all those who are working for a better Iraq.
Development of an effective and cooperative security partnership between the MNF
and the sovereign Government of Iraq is critical to the stability of Iraq. The commander
of the MNF will work in partnership with the sovereign Government of Iraq in helping
to provide security while recognizing and respecting its sovereignty.
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To that end, the MNF stands ready to participate in discussions of the Ministerial
Committee for National Security on the broad framework of security policy, as referred
to in the letter from Prime Minister of the Interim Government of Iraq Allawi dated
June 5, 2004. On the implementation of this policy, recognizing that Iraqi security
forces are responsible to the appropriate Iraqi ministers, the MNF will coordinate with
Iraqi security forces at all levels national, regional, and local in order to achieve
unity of command of military operations in which Iraqi forces are engaged with the
MNF. In addition, the MNF and the Iraqi government leaders will keep each other
informed of their activities, consult regularly to ensure effective allocation and use of
personnel, resources, and facilities, will share intelligence, and will refer issues up the
respective chains of command where necessary. We will work in the fora described by
Prime Minister Allawi in his 5 June letter to reach agreement on the full range of
fundamental security and policy issues, including policy on sensitive offensive operations,
and will ensure full partnership between MNF and Iraqi forces, through close
coordination and consultation.
Under the agreed arrangement, the MNF stands ready to continue to undertake a
broad range of tasks to contribute to the maintenance of security and to ensure force
protection. These include activities necessary to counter ongoing security threats posed
by forces seeking to influence Iraqs political future through violence. This will include
combat operations against members of these groups, internment where this is necessary
for imperative reasons of security, and the continued search for and securing of weapons
that threaten Iraqs security. A further objective will be to train and equip Iraqi security
forces that will increasingly take responsibility for maintaining Iraqs security. The MNF
also stands ready as needed to participate in the provision of humanitarian assistance,
civil affairs support, and relief and reconstruction assistance requested by the Iraqi
Interim Government and in line with previous Security Council Resolutions.
In addition, the MNF is prepared to establish or support a force within the MNF to
provide for the security of personnel and facilities of the United Nations. We have
consulted closely with UN officials regarding the United Nations security requirements
and believe that a brigade-size force will be needed to support the United Nations
security effort. This force will be under the command and control of the MNF
commander, and its missions will include static and perimeter security at U.N. facilities,
and convoy escort duties for the U.N. missions travel requirements.
In order to continue to contribute to security, the MNF must continue to function
under a framework that affords the force and its personnel the status that they need to
accomplish their mission, and in which the contributing states have responsibility for
exercizing jurisdiction over their personnel and which will ensure arrangements for,
and use of assets by, the MNF. The existing framework governing these matters is
sufficient for these purposes. In addition, the forces that make up the MNF are and will
remain committed at all times to act consistently with their obligations under the law
of armed conflict, including the Geneva Conventions.
The MNF is prepared to continue to pursue its current efforts to assist in providing
a secure environment in which the broader international community is able to fulfil its
important role in facilitating Iraqs reconstruction. In meeting these responsibilities in
the period ahead, we will act in full recognition of and respect for Iraqi sovereignty. We
look to other member states and international and regional organizations to assist the
people of Iraq and the sovereign Iraqi Government in overcoming the challenges that
lie ahead to build a democratic, secure and prosperous country.
The co-sponsors intend to annex this letter to the resolution on Iraq under
consideration. In the meantime, I request that you provide copies of this letter to
members of the Council as quickly as possible.
Sincerely,
(Signed) Colin L. Powell
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Law of Administration for the State of Iraq
for the Transitional Period
8 March 2004
PREAMBLE
The people of Iraq, striving to reclaim their freedom, which was usurped by the previous
tyrannical regime, rejecting violence and coercion in all their forms, and particularly
when used as instruments of governance, have determined that they shall hereafter
remain a free people governed under the rule of law.
These people, affirming today their respect for international law, especially having
been amongst the founders of the United Nations, working to reclaim their legitimate
place among nations, have endeavoured at the same time to preserve the unity of their
homeland in a spirit of fraternity and solidarity in order to draw the features of the
future new Iraq, and to establish the mechanisms aiming, amongst other aims, to erase
the effects of racist and sectarian policies and practices.
This Law is now established to govern the affairs of Iraq during the transitional
period until a duly elected government, operating under a permanent and legitimate
constitution achieving full democracy, shall come into being.
CHAPTER ONE FUNDAMENTAL PRINCIPLES
Article 1
(A) This Law shall be called the Law of Administration for the State of Iraq for the
Transitional Period, and the phrase this Law wherever it appears in this
legislation shall mean the Law of Administration for the State of Iraq for the
Transitional Period.
(B) Gender-specific language shall apply equally to male and female.
(C) The Preamble to this Law is an integral part of this Law.
Article 2
(A) The term transitional period shall refer to the period beginning on 30 June
2004 and lasting until the formation of an elected Iraqi government pursuant to
a permanent constitution as set forth in this Law, which in any case shall be no
later than 31 December 2005, unless the provisions of Article 61 are applied.
(B) The transitional period shall consist of two phases.
(1) The first phase shall begin with the formation of a fully sovereign Iraqi Interim
Government that takes power on 30 June 2004. This government shall be
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constituted in accordance with a process of extensive deliberations and
consultations with cross-sections of the Iraqi people conducted by the
Governing Council and the Coalition Provisional Authority and possibly in
consultation with the United Nations. This government shall exercise
authority in accordance with this Law, including the fundamental principles
and rights specified herein, and with an annex that shall be agreed upon
and issued before the beginning of the transitional period and that shall be
an integral part of this Law.
(2) The second phase shall begin after the formation of the Iraqi Transitional
Government, which will take place after elections for the National Assembly
have been held as stipulated in this Law, provided that, if possible, these
elections are not delayed beyond 31 December 2004, and, in any event, beyond
31 January 2005. This second phase shall end upon the formation of an
Iraqi government pursuant to a permanent constitution.
Article 3
(A) This Law is the Supreme Law of the land and shall be binding in all parts of Iraq
without exception. No amendment to this Law may be made except by a three-
fourths majority of the members of the National Assembly and the unanimous
approval of the Presidency Council. Likewise, no amendment may be made that
could abridge in any way the rights of the Iraqi people cited in Chapter Two;
extend the transitional period beyond the time frame cited in this Law; delay the
holding of elections to a new assembly; reduce the powers of the regions or
governorates; or affect Islam, or any other religions or sects and their rites.
(B) Any legal provision that conflicts with this Law is null and void.
(C) This Law shall cease to have effect upon the formation of an elected government
pursuant to a permanent constitution.
Article 4
The system of government in Iraq shall be republican, federal, democratic, and
pluralistic, and powers shall be shared between the federal government and the regional
governments, governorates, municipalities, and local administrations. The federal system
shall be based upon geographic and historical realities and the separation of powers,
and not upon origin, race, ethnicity, nationality, or confession.
Article 5
The Iraqi Armed Forces shall be subject to the civilian control of the Iraqi Transitional
Government, in accordance with the contents of Chapters Three and Five of this Law.
Article 6
The Iraqi Transitional Government shall take effective steps to end the vestiges of the
oppressive acts of the previous regime arising from forced displacement, deprivation
of citizenship, expropriation of financial assets and property, and dismissal from
government employment for political, racial, or sectarian reasons.
Article 7
(A) Islam is the official religion of the State and is to be considered a source of
legislation. No law that contradicts the universally agreed tenets of Islam, the
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principles of democracy, or the rights cited in Chapter Two of this Law may be
enacted during the transitional period. This Law respects the Islamic identity of
the majority of the Iraqi people and guarantees the full religious rights of all
individuals to freedom of religious belief and practice.
(B) Iraq is a country of many nationalities, and the Arab people in Iraq are an
inseparable part of the Arab nation.
Article 8
The flag, anthem, and emblem of the State shall be fixed by law.
Article 9
The Arabic language and the Kurdish language are the two official languages of Iraq.
The right of Iraqis to educate their children in their mother tongue, such as Turcoman,
Syriac, or Armenian, in government educational institutions in accordance with
educational guidelines, or in any other language in private educational institutions,
shall be guaranteed. The scope of the term official language and the means of applying
the provisions of this Article shall be defined by law and shall include:
(1) Publication of the official gazette, in the two languages;
(2) Speech and expression in official settings, such as the National Assembly, the
Council of Ministers, courts, and official conferences, in either of the two languages;
(3) Recognition and publication of official documents and correspondence in the
two languages;
(4) Opening schools that teach in the two languages, in accordance with educational
guidelines;
(5) Use of both languages in any other settings enjoined by the principle of equality
(such as bank notes, passports, and stamps);
(6) Use of both languages in the federal institutions and agencies in the Kurdistan
region.
CHAPTER TWO FUNDAMENTAL RIGHTS
Article 10
As an expression of the free will and sovereignty of the Iraqi people, their representatives
shall form the governmental structures of the State of Iraq. The Iraqi Transitional
Government and the governments of the regions, governorates, municipalities, and
local administrations shall respect the rights of the Iraqi people, including those rights
cited in this Chapter.
Article 11
(A) Anyone who carries Iraqi nationality shall be deemed an Iraqi citizen. His
citizenship shall grant him all the rights and duties stipulated in this Law and shall
be the basis of his relation to the homeland and the State.
(B) No Iraqi may have his Iraqi citizenship withdrawn or be exiled unless he is a
naturalized citizen who, in his application for citizenship, as established in a court
of law, made material falsifications on the basis of which citizenship was granted.
(C) Each Iraqi shall have the right to carry more than one citizenship. Any Iraqi whose
citizenship was withdrawn because he acquired another citizenship shall be deemed
an Iraqi.
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(D) Any Iraqi whose Iraqi citizenship was withdrawn for political, religious, racial, or
sectarian reasons has the right to reclaim his Iraqi citizenship.
(E) Decision Number 666 (1980) of the dissolved Revolutionary Command Council
is annulled, and anyone whose citizenship was withdrawn on the basis of this decree
shall be deemed an Iraqi.
(F) The National Assembly must issue laws pertaining to citizenship and naturalisation
consistent with the provisions of this Law.
(G) The Courts shall examine all disputes arising from the application of the provisions
relating to citizenship.
Article 12
All Iraqis are equal in their rights without regard to gender, sect, opinion, belief,
nationality, religion, or origin, and they are equal before the law. Discrimination against
an Iraqi citizen on the basis of his gender, nationality, religion, or origin is prohibited.
Everyone has the right to life, liberty, and the security of his person. No one may be
deprived of his life or liberty, except in accordance with legal procedures. All are equal
before the courts.
Article 13
(A) Public and private freedoms shall be protected.
(B) The right of free expression shall be protected.
(C) The right of free peaceable assembly and the right to join associations freely, as
well as the right to form and join unions and political parties freely, in accordance
with the law, shall be guaranteed.
(D) Each Iraqi has the right of free movement in all parts of Iraq and the right to
travel abroad and return freely.
(E) Each Iraqi has the right to demonstrate and strike peaceably in accordance with
the law.
(F) Each Iraqi has the right to freedom of thought, conscience, and religious belief
and practice. Coercion in such matters shall be prohibited.
(G) Slavery, the slave trade, forced labour, and involuntary servitude with or without
pay, shall be forbidden.
(H) Each Iraqi has the right to privacy.
Article 14
The individual has the right to security, education, health care, and social security. The
Iraqi State and its governmental units, including the federal government, the regions,
governorates, municipalities, and local administrations, within the limits of their
resources and with due regard to other vital needs, shall strive to provide prosperity
and employment opportunities to the people.
Article 15
(A) No civil law shall have retroactive effect unless the law so stipulates. There shall be
neither a crime, nor punishment, except by law in effect at the time the crime is
committed.
(B) Police, investigators, or other governmental authorities may not violate the sanctity
of private residences, whether these authorities belong to the federal or regional
governments, governorates, municipalities, or local administrations, unless a judge
or investigating magistrate has issued a search warrant in accordance with
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applicable law on the basis of information provided by a sworn individual who
knew that bearing false witness would render him liable to punishment. Extreme
exigent circumstances, as determined by a court of competent jurisdiction, may
justify a warrantless search, but such exigencies shall be narrowly construed. In
the event that a warrantless search is carried out in the absence of an extreme
exigent circumstance, the evidence so seized, and any other evidence found
derivatively from such search, shall be inadmissible in connection with a criminal
charge, unless the court determines that the person who carried out the warrantless
search believed reasonably and in good faith that the search was in accordance
with the law.
(C) No one may be unlawfully arrested or detained, and no one may be detained by
reason of political or religious beliefs.
(D) All persons shall be guaranteed the right to a fair and public hearing by an
independent and impartial tribunal, regardless of whether the proceeding is civil
or criminal. Notice of the proceeding and its legal basis must be provided to the
accused without delay.
(E) The accused is innocent until proven guilty pursuant to law, and he likewise has
the right to engage independent and competent counsel, to remain silent in
response to questions addressed to him with no compulsion to testify for any reason,
to participate in preparing his defence, and to summon and examine witnesses or
to ask the judge to do so. At the time a person is arrested, he must be notified of
these rights.
(F) The right to a fair, speedy, and open trial shall be guaranteed.
(G) Every person deprived of his liberty by arrest or detention shall have the right of
recourse to a court to determine the legality of his arrest or detention without
delay and to order his release if this occurred in an illegal manner.
(H) After being found innocent of a charge, an accused may not be tried once again
on the same charge.
(I) Civilians may not be tried before a military tribunal. Special or exceptional courts
may not be established.
(J) Torture in all its forms, physical or mental, shall be prohibited under all
circumstances, as shall be cruel, inhuman, or degrading treatment. No confession
made under compulsion, torture, or threat thereof shall be relied upon or admitted
into evidence for any reason in any proceeding, whether criminal or otherwise.
Article 16
(A) Public property is sacrosanct, and its protection is the duty of every citizen.
(B) The right to private property shall be protected, and no one may be prevented
from disposing of his property except within the limits of law. No one shall be
deprived of his property except by eminent domain, in circumstances and in the
manner set forth in law, and on condition that he is paid just and timely
compensation.
(C) Each Iraqi citizen shall have the full and unfettered right to own real property in
all parts of Iraq without restriction.
Article 17
It shall not be permitted to possess, bear, buy, or sell arms except on licensure issued in
accordance with the law.
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Article 18
There shall be no taxation or fee except by law.
Article 19
No political refugee who has been granted asylum pursuant to applicable law may be
surrendered or returned forcibly to the country from which he fled.
Article 20
(A) Every Iraqi who fulfils the conditions stipulated in the electoral law has the right
to stand for election and cast his ballot secretly in free, open, fair, competitive,
and periodic elections.
(B) No Iraqi may be discriminated against for purposes of voting in elections on the
basis of gender, religion, sect, race, belief, ethnic origin, language, wealth, or
literacy.
Article 21
Neither the Iraqi Transitional Government nor the governments and administrations
of the regions, governorates, and municipalities, nor local administrations may interfere
with the right of the Iraqi people to develop the institutions of civil society, whether in
cooperation with international civil society organisations or otherwise.
Article 22
If, in the course of his work, an official of any government office, whether in the federal
government, the regional governments, the governorate and municipal administrations,
or the local administrations, deprives an individual or a group of the rights guaranteed
by this Law or any other Iraqi laws in force, this individual or group shall have the right
to maintain a cause of action against that employee to seek compensation for the
damages caused by such deprivation, to vindicate his rights, and to seek any other legal
measure. If the court decides that the official had acted with a sufficient degree of
good faith and in the belief that his actions were consistent with the law, then he is not
required to pay compensation.
Article 23
The enumeration of the foregoing rights must not be interpreted to mean that they
are the only rights enjoyed by the Iraqi people. They enjoy all the rights that befit a free
people possessed of their human dignity, including the rights stipulated in international
treaties and agreements, other instruments of international law that Iraq has signed
and to which it has acceded, and others that are deemed binding upon it, and in the
law of nations. Non-Iraqis within Iraq shall enjoy all human rights not inconsistent with
their status as non-citizens.
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CHAPTER THREE THE IRAQI TRANSITIONAL GOVERNMENT
Article 24
(A) The Iraqi Transitional Government, which is also referred to in this Law as the
federal government, shall consist of the National Assembly; the Presidency Council;
the Council of Ministers, including the Prime Minister; and the judicial authority.
(B) The three authorities, legislative, executive, and judicial, shall be separate and
independent of one another.
(C) No official or employee of the Iraqi Transitional Government shall enjoy immunity
for criminal acts committed while in office.
Article 25
The Iraqi Transitional Government shall have exclusive competence in the following
matters:
(A) Formulating foreign policy and diplomatic representation; negotiating, signing,
and ratifying international treaties and agreements; formulating foreign economic
and trade policy and sovereign debt policies;
(B) Formulating and executing national security policy, including creating and
maintaining armed forces to secure, protect, and guarantee the security of the
countrys borders and to defend Iraq;
(C) Formulating fiscal policy, issuing currency, regulating customs, regulating
commercial policy across regional and governorate boundaries in Iraq, drawing
up the national budget of the State, formulating monetary policy, and establishing
and administering a central bank;
(D) Regulating weights and measures and formulating a general policy on wages;
(E) Managing the natural resources of Iraq, which belongs to all the people of all the
regions and governorates of Iraq, in consultation with the governments of the
regions and the administrations of the governorates, and distributing the revenues
resulting from their sale through the national budget in an equitable manner
proportional to the distribution of population throughout the country, and with
due regard for areas that were unjustly deprived of these revenues by the previous
regime, for dealing with their situations in a positive way, for their needs, and for
the degree of development of the different areas of the country;
(F) Regulating Iraqi citizenship, immigration, and asylum; and
(G) Regulating telecommunications policy.
Article 26
(A) Except as otherwise provided in this Law, the laws in force in Iraq on 30 June 2004
shall remain in effect unless and until rescinded or amended by the Iraqi
Transitional Government in accordance with this Law.
(B) Legislation issued by the federal legislative authority shall supersede any other
legislation issued by any other legislative authority in the event that they contradict
each other, except as provided in Article 54(B).
(C) The laws, regulations, orders, and directives issued by the Coalition Provisional
Authority pursuant to its authority under international law shall remain in force
until rescinded or amended by legislation duly enacted and having the force of
law.
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Article 27
(A) The Iraqi Armed Forces shall consist of the active and reserve units, and elements
thereof. The purpose of these forces is the defence of Iraq.
(B) Armed forces and militias not under the command structure of the Iraqi
Transitional Government are prohibited, except as provided by federal law.
(C) The Iraqi Armed Forces and its personnel, including military personnel working
in the Ministry of Defence or any offices or organisations subordinate to it, may
not stand for election to political office, campaign for candidates, or participate
in other activities forbidden by Ministry of Defence regulations. This ban
encompasses the activities of the personnel mentioned above acting in their
personal or official capacities. Nothing in this Article shall infringe upon the right
of these personnel to vote in elections.
(D) The Iraqi Intelligence Service shall collect information, assess threats to national
security, and advise the Iraqi government. This Service shall be under civilian
control, shall be subject to legislative oversight, and shall operate pursuant to law
and in accordance with recognised principles of human rights.
(E) The Iraqi Transitional Government shall respect and implement Iraqs
international obligations regarding the non-proliferation, non-development, non-
production, and non-use of nuclear, chemical, and biological weapons, and
associated equipment, materiel, technologies, and delivery systems for use in the
development, manufacture, production, and use of such weapons.
Article 28
(A) Members of the National Assembly; the Presidency Council; the Council of
Ministers, including the Prime Minister; and judges and justices of the courts may
not be appointed to any other position in or out of government. Any member of
the National Assembly who becomes a member of the Presidency Council or
Council of Ministers shall be deemed to have resigned his membership in the
National Assembly.
(B) In no event may a member of the armed forces be a member of the National
Assembly, minister, Prime Minister, or member of the Presidency Council unless
the individual has resigned his commission or rank, or retired from duty at least
18 months prior to serving.
Article 29
Upon the assumption of full authority by the Iraqi Interim Government in accordance
with Article 2(B)(1), above, the Coalition Provisional Authority shall be dissolved and
the work of the Governing Council shall come to an end.
CHAPTER FOUR THE TRANSITIONAL LEGISLATIVE AUTHORITY
Article 30
(A) During the transitional period, the State of Iraq shall have a legislative authority
known as the National Assembly. Its principal mission shall be to legislate and
exercise oversight over the work of the executive authority.
(B) Laws shall be issued in the name of the people of Iraq. Laws, regulations, and
directives related to them shall be published in the official gazette and shall take
effect as of the date of their publication, unless they stipulate otherwise.
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(C) The National Assembly shall be elected in accordance with an electoral law and a
political parties law. The electoral law shall aim to achieve the goal of having women
constitute no less than one-quarter of the members of the National Assembly and
of having fair representation for all communities in Iraq, including the Turcomans,
ChaldoAssyrians, and others.
(D) Elections for the National Assembly shall take place by 31 December 2004 if
possible, and in any case no later than by 31 January 2005.
Article 31
(A) The National Assembly shall consist of 275 members. It shall enact a law dealing
with the replacement of its members in the event of resignation, removal, or death.
(B) A nominee to the National Assembly must fulfil the following conditions:
(1) He shall be an Iraqi no less than 30 years of age.
(2) He shall not have been a member of the dissolved Baath Party with the rank
of Division Member or higher, unless exempted pursuant to the applicable
legal rules.
(3) If he was once a member of the dissolved Baath Party with the rank of Full
Member, he shall be required to sign a document renouncing the Baath
Party and disavowing all of his past links with it before becoming eligible to
be a candidate, as well as to swear that he no longer has any dealings or
connection with Baath Party organisations. If it is established in court that
he lied or fabricated on this score, he shall lose his seat in the National
Assembly.
(4) He shall not have been a member of the former agencies of repression and
shall not have contributed to or participated in the persecution of citizens.
(5) He shall not have enriched himself in an illegitimate manner at the expense
of the homeland and public finance.
(6) He shall not have been convicted of a crime involving moral turpitude and
shall have a good reputation.
(7) He shall have at least a secondary school diploma, or equivalent
(8) He shall not be a member of the armed forces at the time of his nomination.
Article 32
(A) The National Assembly shall draw up its own internal procedures, and it shall sit
in public session unless circumstances require otherwise, consistent with its internal
procedures. The first session of the Assembly shall be chaired by its oldest member.
(B) The National Assembly shall elect, from its own members, a president and two
deputy presidents of the National Assembly. The president of the National Assembly
shall be the individual who receives the greatest number of votes for that office;
the first deputy president the next highest; and the second deputy president the
next. The president of the National Assembly may vote on an issue, but may not
participate in the debates, unless he temporarily steps out of the chair immediately
prior to addressing the issue.
(C) A bill shall not be voted upon by the National Assembly unless it has been read
twice at a regular session of the Assembly, on condition that at least two days
intervene between the two readings, and after the bill has been placed on the
agenda of the session at least four days prior to the vote.
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Article 33
(A) Meetings of the National Assembly shall be public, and transcripts of its meetings
shall be recorded and published. The vote of every member of the National
Assembly shall be recorded and made public. Decisions in the National Assembly
shall be taken by simple majority unless this Law stipulates otherwise.
(B) The National Assembly must examine bills proposed by the Council of Ministers,
including budget bills.
(C) Only the Council of Ministers shall have the right to present a proposed national
budget. The National Assembly has the right to reallocate proposed spending
and to reduce the total amounts in the general budget. It also has the right to
propose an increase in the overall amount of expenditures to the Council of
Ministers if necessary.
(D) Members of the National Assembly shall have the right to propose bills, consistent
with the internal procedures that are drawn up by the Assembly.
(E) The Iraqi Armed Forces may not be dispatched outside Iraq even for the purpose
of defending against foreign aggression except with the approval of the National
Assembly and upon the request of the Presidency Council.
(F) Only the National Assembly shall have the power to ratify international treaties
and agreements.
(G) The oversight function performed by the National Assembly and its committees
shall include the right of interpellation of executive officials, including members
of the Presidency Council, the Council of Ministers, including the Prime Minister,
and any less senior official of the executive authority. This shall encompass the
right to investigate, request information, and issue subpoenas for persons to appear
before them.
Article 34
Each member of the National Assembly shall enjoy immunity for statements made while
the Assembly is in session, and the member may not be sued before the courts for such.
A member may not be placed under arrest during a session of the National Assembly,
unless the member is accused of a crime and the National Assembly agrees to lift his
immunity or if he is caught in flagrante delicto in the commission of a felony.
CHAPTER FIVE THE TRANSITIONAL EXECUTIVE AUTHORITY
Article 35
The executive authority during the transitional period shall consist of the Presidency
Council, the Council of Ministers, and its presiding Prime Minister.
Article 36
(A) The National Assembly shall elect a President of the State and two Deputies. They
shall form the Presidency Council, the function of which will be to represent the
sovereignty of Iraq and oversee the higher affairs of the country. The election of
the Presidency Council shall take place on the basis of a single list and by a two-
thirds majority of the members votes. The National Assembly has the power to
remove any member of the Presidency Council of the State for incompetence or
lack of integrity by a three-fourths majority of its members votes. In the event of
a vacancy in the Presidency Council, the National Assembly shall, by a vote of two-
thirds of its members, elect a replacement to fill the vacancy.
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(B) It is a prerequisite for a member of the Presidency Council to fulfil the same
conditions as the members of the National Assembly, with the following
observations:
(1) He must be at least 40 years of age.
(2) He must possess a good reputation, integrity, and rectitude.
(3) If he was a member of the dissolved Baath Party, he must have left the
dissolved Party at least ten years before its fall.
(4) He must not have participated in repressing the intifada of 1991 or the Anfal
campaign and must not have committed a crime against the Iraqi people.
(C) The Presidency Council shall take its decisions unanimously, and its members
may not deputize others as proxies.
Article 37
The Presidency Council may veto any legislation passed by the National Assembly, on
condition that this be done within 15 days after the Presidency Council is notified by
the president of the National Assembly of the passage of such legislation. In the event
of a veto, the legislation shall be returned to the National Assembly, which has the right
to pass the legislation again by a two-thirds majority not subject to veto within a period
not to exceed 30 days.
Article 38
(A) The Presidency Council shall name a Prime Minister unanimously, as well as the
members of the Council of Ministers upon the recommendation of the Prime
Minister. The Prime Minister and Council of Ministers shall then seek to obtain a
vote of confidence by simple majority from the National Assembly prior to
commencing their work as a government. The Presidency Council must agree on
a candidate for the post of Prime Minister within two weeks. In the event that it
fails to do so, the responsibility of naming the Prime Minister reverts to the National
Assembly. In that event, the National Assembly must confirm the nomination by a
two-thirds majority. If the Prime Minister is unable to nominate his Council of
Ministers within one month, the Presidency Council shall name another Prime
Minister.
(B) The qualifications for Prime Minister must be the same as for the members of the
Presidency Council except that his age must not be less than 35 years upon his
taking office.
Article 39
(A) The Council of Ministers shall, with the approval of the Presidency Council,
appoint representatives to negotiate the conclusion of international treaties and
agreements. The Presidency Council shall recommend passage of a law by the
National Assembly to ratify such treaties and agreements.
(B) The Presidency Council shall carry out the function of commander-in-chief of the
Iraqi Armed Forces only for ceremonial and protocol purposes. It shall have no
command authority. It shall have the right to be briefed, to inquire, and to advise.
Operationally, national command authority on military matters shall flow from
the Prime Minister to the Minister of Defence to the military chain of command
of the Iraqi Armed Forces.
(C) The Presidency Council shall, as more fully set forth in Chapter Six, below, appoint,
upon recommendation of the Higher Juridical Council, the Presiding Judge and
members of the Federal Supreme Court.
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(D) The Council of Ministers shall appoint the Director-General of the Iraqi National
Intelligence Service, as well as officers of the Iraqi Armed Forces at the rank of
general or above. Such appointments shall be subject to confirmation by the
National Assembly by simple majority of those of its members present.
Article 40
(A) The Prime Minister and the ministers shall be responsible before the National
Assembly, and this Assembly shall have the right to withdraw its confidence either
in the Prime Minister or in the ministers collectively or individually. In the event
that confidence in the Prime Minister is withdrawn, the entire Council of Ministers
shall be dissolved, and Article 40(B), below, shall become operative.
(B) In the event of a vote of no confidence with respect to the entire Council of
Ministers, the Prime Minister and Council of Ministers shall remain in office to
carry out their functions for a period not to exceed 30 days, until the formation of
a new Council of Ministers, consistent with Article 38, above.
Article 41
The Prime Minister shall have day-to-day responsibility for the management of the
government, and he may dismiss ministers with the approval of a simple majority of
the National Assembly. The Presidency Council may, upon the recommendation of the
Commission on Public Integrity after the exercise of due process, dismiss the Prime
Minister or the ministers.
Article 42
The Council of Ministers shall draw up rules of procedure for its work and issue the
regulations and directives necessary to enforce the laws. It also has the right to propose
bills to the National Assembly. Each ministry has the right, within its competence, to
nominate deputy ministers, ambassadors, and other employees of special grade. After
the Council of Ministers approves these nominations, they shall be submitted to the
Presidency Council for ratification. All decisions of the Council of Ministers shall be
taken by simple majority of those of its members present.
CHAPTER SIX THE FEDERAL JUDICIAL AUTHORITY
Article 43
(A) The judiciary is independent, and it shall in no way be administered by the executive
authority, including the Ministry of Justice. The judiciary shall enjoy exclusive
competence to determine the innocence or guilt of the accused pursuant to law,
without interference from the legislative or executive authorities.
(B) All judges sitting in their respective courts as of 1 July 2004 will continue in office
thereafter, unless removed from office pursuant to this Law.
(C) The National Assembly shall establish an independent and adequate budget for
the judiciary.
(D) Federal courts shall adjudicate matters that arise from the application of federal
laws. The establishment of these courts shall be within the exclusive competence
of the federal government. The establishment of these courts in the regions shall
be in consultation with the presidents of the judicial councils in the regions, and
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priority in appointing or transferring judges to these courts shall be given to judges
resident in the region.
Article 44
(A) A court called the Federal Supreme Court shall be constituted by law in Iraq.
(B) The jurisdiction of the Federal Supreme Court shall be as follows:
(1) Original and exclusive jurisdiction in legal proceedings between the Iraqi
Transitional Government and the regional governments, governorate and
municipal administrations, and local administrations.
(2) Original and exclusive jurisdiction, on the basis of a complaint from a claimant
or a referral from another court, to review claims that a law, regulation, or
directive issued by the federal or regional governments, the governorate or
municipal administrations, or local administrations is inconsistent with this
Law.
(3) Ordinary appellate jurisdiction of the Federal Supreme Court shall be defined
by federal law.
(C) Should the Federal Supreme Court rule that a challenged law, regulation, directive,
or measure is inconsistent with this Law, it shall be deemed null and void.
(D) The Federal Supreme Court shall create and publish regulations regarding the
procedures required to bring claims and to permit attorneys to practise before it.
It shall take its decisions by simple majority, except decisions with regard to the
proceedings stipulated in Article 44(B)(1), which must be by a two-thirds majority.
Decisions shall be binding. The Court shall have full powers to enforce its decisions,
including the power to issue citations for contempt of court and the measures
that flow from this.
(E) The Federal Supreme Court shall consist of nine members. The Higher Juridical
Council shall, in consultation with the regional judicial councils, initially nominate
no less than 18 and up to 27 individuals to fill the initial vacancies in the
aforementioned Court. It will follow the same procedure thereafter, nominating
three members for each subsequent vacancy that occurs by reason of death,
resignation, or removal. The Presidency Council shall appoint the members of
this Court and name one of them as its Presiding Judge. In the event an
appointment is rejected, the Higher Juridical Council shall nominate a new group
of three candidates.
Article 45
A Higher Juridical Council shall be established and assume the role of the Council of
Judges. The Higher Juridical Council shall supervise the federal judiciary and shall
administer its budget. This Council shall be composed of the Presiding Judge of the
Federal Supreme Court, the presiding judge and deputy presiding judges of the federal
Court of Cassation, the presiding judges of the federal Courts of Appeal, and the
presiding judge and two deputy presiding judges of each regional Court of Cassation.
The Presiding Judge of the Federal Supreme Court shall preside over the Higher Juridical
Council. In his absence, the presiding judge of the federal Court of Cassation shall
preside over the Council.
Article 46
(A) The federal judicial branch shall include existing courts outside the Kurdistan
region, including courts of first instance; the Central Criminal Court of Iraq; Courts
of Appeal; and the Court of Cassation, which shall be the court of last resort
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except as provided in Article 44 of this Law. Additional federal courts may be
established by law. The appointment of judges for these courts shall be made by
the Higher Juridical Council. This Law preserves the qualifications necessary for
the appointment of judges, as defined by law.
(B) The decisions of regional and local courts, including the courts of the Kurdistan
region, shall be final, but shall be subject to review by the federal judiciary if they
conflict with this Law or any federal law. Procedures for such review shall be defined
by law.
Article 47
No judge or member of the Higher Juridical Council may be removed unless he is
convicted of a crime involving moral turpitude or corruption or suffers permanent
incapacity. Removal shall be on the recommendation of the Higher Juridical Council,
by a decision of the Council of Ministers, and with the approval of the Presidency Council.
Removal shall be executed immediately after issuance of this approval. A judge who
has been accused of such a crime as cited above shall be suspended from his work in
the judiciary until such time as the case arising from what is cited in this Article is
adjudicated. No judge may have his salary reduced or suspended for any reason during
his period of service.
CHAPTER SEVEN THE SPECIAL TRIBUNAL AND
NATIONAL COMMISSIONS
Article 48
(A) The statute establishing the Iraqi Special Tribunal issued on 10 December 2003 is
confirmed. That statute exclusively defines its jurisdiction and procedures,
notwithstanding the provisions of this Law.
(B) No other court shall have jurisdiction to examine cases within the competence of
the Iraqi Special Tribunal, except to the extent provided by its founding statute.
(C) The judges of the Iraqi Special Tribunal shall be appointed in accordance with
the provisions of its founding statute.
Article 49
(A) The establishment of national commissions such as the Commission on Public
Integrity, the Iraqi Property Claims Commission, and the Higher National De-
Baathification Commission is confirmed, as is the establishment of commissions
formed after this Law has come into effect. The members of these national
commissions shall continue to serve after this Law has gone into effect, taking
into account the contents of Article 51, below.
(B) The method of appointment to the national commissions shall be in accordance
with law.
Article 50
The Iraqi Transitional Government shall establish a National Commission for Human
Rights for the purpose of executing the commitments relative to the rights set forth in
this Law and to examine complaints pertaining to violations of human rights. The
Commission shall be established in accordance with the Paris Principles issued by the
United Nations on the responsibilities of national institutions. This Commission shall
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413
include an Office of the Ombudsman to inquire into complaints. This office shall have
the power to investigate, on its own initiative or on the basis of a complaint submitted
to it, any allegation that the conduct of the governmental authorities is arbitrary or
contrary to law.
Article 51
No member of the Iraqi Special Tribunal or of any commission established by the
federal government may be employed in any other capacity in or out of government.
This prohibition is valid without limitation, whether it be within the executive, legislative,
or judicial authority of the Iraqi Transitional Government. Members of the Special
Tribunal may, however, suspend their employment in other agencies while they serve
on the aforementioned Tribunal.
CHAPTER EIGHT REGIONS, GOVERNORATES, AND MUNICIPALITIES
Article 52
The design of the federal system in Iraq shall be established in such a way as to prevent
the concentration of power in the federal government that allowed the continuation
of decades of tyranny and oppression under the previous regime. This system shall
encourage the exercise of local authority by local officials in every region and
governorate, thereby creating a united Iraq in which every citizen actively participates
in governmental affairs, secure in his rights and free of domination.
Article 53
(A) The Kurdistan Regional Government is recognised as the official government of
the territories that were administered by the that government on 19 March 2003
in the governorates of Dohuk, Arbil, Sulaimaniya, Kirkuk, Diyala and Neneveh.
The term Kurdistan Regional Government shall refer to the Kurdistan National
Assembly, the Kurdistan Council of Ministers, and the regional judicial authority
in the Kurdistan region.
(B) The boundaries of the 18 governorates shall remain without change during the
transitional period.
(C) Any group of no more than three governorates outside the Kurdistan region, with
the exception of Baghdad and Kirkuk, shall have the right to form regions from
amongst themselves. The mechanisms for forming such regions may be proposed
by the Iraqi Interim Government, and shall be presented and considered by the
elected National Assembly for enactment into law. In addition to being approved
by the National Assembly, any legislation proposing the formation of a particular
region must be approved in a referendum of the people of the relevant
governorates.
(D) This Law shall guarantee the administrative, cultural, and political rights of the
Turcomans, ChaldoAssyrians, and all other citizens.
Article 54
(A) The Kurdistan Regional Government shall continue to perform its current
functions throughout the transitional period, except with regard to those issues
which fall within the exclusive competence of the federal government as specified
in this Law. Financing for these functions shall come from the federal government,
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414
consistent with current practice and in accordance with Article 25(E) of this Law.
The Kurdistan Regional Government shall retain regional control over police
forces and internal security, and it will have the right to impose taxes and fees
within the Kurdistan region.
(B) With regard to the application of federal laws in the Kurdistan region, the Kurdistan
National Assembly shall be permitted to amend the application of any such law
within the Kurdistan region, but only to the extent that this relates to matters that
are not within the provisions of Articles 25 and 43(D) of this Law and that fall
within the exclusive competence of the federal government.
Article 55
(A) Each governorate shall have the right to form a Governorate Council, name a
governor, and form municipal and local councils. No member of any regional
government, governor, or member of any governorate, municipal, or local council
may be dismissed by the federal government or any official thereof, except upon
conviction of a crime by a court of competent jurisdiction as provided by law. No
regional government may dismiss a governor or member or members of any
governorate, municipal, or local council. No governor or member of any
governorate, municipal, or local council shall be subject to the control of the
federal government except to the extent that the matter relates to the competences
set forth in Article 25 and 43(D), above.
(B) Each governor and member of each Governorate Council who holds office as of
1 July 2004, in accordance with the law on local government that shall be issued,
shall remain in place until such time as free, direct, and full elections, conducted
pursuant to law, are held, or, unless, prior to that time, he voluntarily gives up his
position, is removed upon his conviction for a crime involving moral turpitude or
related to corruption, or upon being stricken with permanent incapacity, or is
dismissed in accordance with the law cited above. When a governor, mayor, or
member of a council is dismissed, the relevant council may receive applications
from any eligible resident of the governorate to fill the position. Eligibility
requirements shall be the same as those set forth in Article 31 for membership in
the National Assembly. The new candidate must receive a majority vote of the
council to assume the vacant seat.
Article 56
(A) The Governorate Councils shall assist the federal government in the coordination
of federal ministry operations within the governorate, including the review of
annual ministry plans and budgets with regard to activities in the governorate.
Governorate Councils shall be funded from the general budget of the State, and
these councils shall also have the authority to increase their revenues independently
by imposing taxes and fees; to organise the operations of the governorate
administration; to initiate and implement province-level projects alone or in
partnership with international, and non-governmental organisations; and to
conduct other activities insofar as is consistent with federal laws.
(B) The Qada and Nahiya councils and other relevant councils shall assist in the
performance of federal responsibilities and the delivery of public services by
reviewing local ministry plans in the aforementioned places; ensuring that they
respond properly to local needs and interests; identifying local budgetary
requirements through the national budgeting procedures; and collecting and
retaining local revenues, taxes, and fees; organising the operations of the local
administration; initiating and implementing local projects alone or in conjunction
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415
with international, and non-governmental organisations; and conducting other
activities consistent with applicable law.
(C) Where practicable, the federal government shall take measures to devolve
additional functions to local, governorate, and regional administrations, in a
methodical way. Regional units and governorate administrations, including the
Kurdistan Regional Government, shall be organised on the basis of the principle
of decentralisation and the devolution of authorities to municipal and local
governments.
Article 57
(A) All authorities not exclusively reserved to the Iraqi Transitional Government may
be exercised by the regional governments and governorates as soon as possible
following the establishment of appropriate governmental institutions.
(B) Elections for Governorate Councils throughout Iraq and for the Kurdistan National
Assembly shall be held at the same time as the elections for the National Assembly,
no later than 31 January 2005.
Article 58
(A) The Iraqi Transitional Government, and especially the Iraqi Property Claims
Commission and other relevant bodies, shall act expeditiously to take measures to
remedy the injustice caused by the previous regimes practices in altering the
demographic character of certain regions, including Kirkuk, by deporting and
expelling individuals from their places of residence, forcing migration in and out
of the region, settling individuals alien to the region, depriving the inhabitants of
work, and correcting nationality. To remedy this injustice, the Iraqi Transitional
Government shall take the following steps:
(1) With regard to residents who were deported, expelled, or who emigrated; it
shall, in accordance with the statute of the Iraqi Property Claims Commission
and other measures within the law, within a reasonable period of time, restore
the residents to their homes and property, or, where this is unfeasible, shall
provide just compensation.
(2) With regard to the individuals newly introduced to specific regions and
territories, it shall act in accordance with Article 10 of the Iraqi Property
Claims Commission statute to ensure that such individuals may be resettled,
may receive compensation from the state, may receive new land from the
state near their residence in the governorate from which they came, or may
receive compensation for the cost of moving to such areas.
(3) With regard to persons deprived of employment or other means of support
in order to force migration out of their regions and territories, it shall promote
new employment opportunities in the regions and territories.
(4) With regard to nationality correction, it shall repeal all relevant decrees and
shall permit affected persons the right to determine their own national
identity and ethnic affiliation free from coercion and duress.
(B) The previous regime also manipulated and changed administrative boundaries
for political ends. The Presidency Council of the Iraqi Transitional Government
shall make recommendations to the National Assembly on remedying these unjust
changes in the permanent constitution. In the event the Presidency Council is
unable to agree unanimously on a set of recommendations, it shall unanimously
appoint a neutral arbitrator to examine the issue and make recommendations. In
the event the Presidency Council is unable to agree on an arbitrator, it shall request
the Secretary General of the United Nations to appoint a distinguished
international person to be the arbitrator.
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416
(C) The permanent resolution of disputed territories, including Kirkuk, shall be
deferred until after these measures are completed, a fair and transparent census
has been conducted and the permanent constitution has been ratified. This
resolution shall be consistent with the principle of justice, taking into account the
will of the people of those territories.
CHAPTER NINE THE TRANSITIONAL PERIOD
Article 59
(A) The permanent constitution shall contain guarantees to ensure that the Iraqi
Armed Forces are never again used to terrorise or oppress the people of Iraq.
(B) Consistent with Iraqs status as a sovereign state, and with its desire to join other
nations in helping to maintain peace and security and fight terrorism during
the transitional period, the Iraqi Armed Forces will be a principal partner in the
multinational force operating in Iraq under unified command pursuant to the
provisions of United Nations Security Council Resolution 1511 (2003) and any
subsequent relevant resolutions. This arrangement shall last until the ratification
of a permanent constitution and the election of a new government pursuant to
that new constitution.
(C) Upon its assumption of authority, and consistent with Iraqs status as a sovereign
state, the elected Iraqi Transitional Government shall have the authority to
conclude binding international agreements regarding the activities of the multi-
national force operating in Iraq under unified command pursuant to the terms
of United Nations Security Council Resolution 1511 (2003), and any subsequent
relevant United Nations Security Council resolutions. Nothing in this Law shall
affect rights and obligations under these agreements, or under United Nations
Security Council Resolution 1511 (2003), and any subsequent relevant United
Nations Security Council resolutions, which will govern the multinational forces
activities pending the entry into force of these agreements.
Article 60
The National Assembly shall write a draft of the permanent constitution of Iraq. This
Assembly shall carry out this responsibility in part by encouraging debate on the
constitution through regular general public meetings in all parts of Iraq and through
the media, and receiving proposals from the citizens of Iraq as it writes the constitution.
Article 61
(A) The National Assembly shall write the draft of the permanent constitution by no
later than 15 August 2005.
(B) The draft permanent constitution shall be presented to the Iraqi people for
approval in a general referendum to be held no later than 15 October 2005. In
the period leading up to the referendum, the draft constitution shall be published
and widely distributed to encourage a public debate about it among the people.
(C) The general referendum will be successful and the draft constitution ratified if a
majority of the voters in Iraq approve and if two-thirds of the voters in three or
more governorates do not reject it.
(D) If the permanent constitution is approved in the referendum, elections for a
permanent government shall be held no later than 15 December 2005 and the
new government shall assume office no later than 31 December 2005.
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417
(E) If the referendum rejects the draft permanent constitution, the National Assembly
shall be dissolved. Elections for a new National Assembly shall be held no later
than 15 December 2005. The new National Assembly and new Iraqi Transitional
Government shall then assume office no later than 31 December 2005, and shall
continue to operate under this Law, except that the final deadlines for preparing
a new draft may be changed to make it possible to draft a permanent constitution
within a period not to exceed one year. The new National Assembly shall be
entrusted with writing another draft permanent constitution.
(F) If necessary, the president of the National Assembly, with the agreement of a
majority of the members votes, may certify to the Presidency Council no later
than 1 August 2005 that there is a need for additional time to complete the writing
of the draft constitution. The Presidency Council shall then extend the deadline
for writing the draft constitution for only six months. This deadline may not be
extended again.
(G) If the National Assembly does not complete writing the draft permanent
constitution by 15 August 2005 and does not request extension of the deadline in
Article 61(F) above, the provisions of Article 61(E), above, shall be applied.
Article 62
This Law shall remain in effect until the permanent constitution is issued and the new
Iraqi government is formed in accordance with it.
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418
Legality of Armed Force
Baroness Ramsay of Cartvale asked Her Majestys Government:
What is the Attorney-Generals view of the legal basis for the use of force against Iraq.
[HL2172]
The Attorney-General (Lord Goldsmith): Authority to use force against Iraq exists from
the combined effect of Resolutions 678, 687 and 1441. All of these resolutions were
adopted under Chapter VII of the U.N. Charter which allows the use of force for the
express purpose of restoring international peace and security:
(1) In Resolution 678, the Security Council authorised force against Iraq, to eject it
from Kuwait and to restore peace and security in the area.
(2) In Resolution 687, which set out the cease-fire conditions after Operation Desert
Storm, the Security Council imposed continuing obligations on Iraq to eliminate
its weapons of mass destruction in order to restore international peace and security
in the area. Resolution 687 suspended but did not terminate the authority to use
force under Resolution 678.
(3) A material breach of Resolution 687 revives the authority to use force under
Resolution 678.
(4) In Resolution 1441, the Security Council determined that Iraq has been and
remains in material breach of Resolution 687, because it has not fully complied
with its obligations to disarm under that resolution.
(5) The Security Council in Resolution 1441 gave Iraq a final opportunity to comply
with its disarmament obligations and warned Iraq of the serious consequences
if it did not.
(6) The Security Council also decided in Resolution 1441 that, if Iraq failed at any
time to comply with and cooperate fully in the implementation of Resolution
1441, that would constitute a further material breach.
(7) It is plain that Iraq has failed so to comply and therefore Iraq was at the time of
Resolution 1441 and continues to be in material breach.
(8) Thus, the authority to use force under Resolution 678 has revived and so continues
today.
(9) Resolution 1441 would in terms have provided that a further decision of the Security
Council to sanction force was required if that had been intended. Thus, all that
Resolution 1441 requires is reporting to and discussion by the Security Council of
Iraqs failures, but not an express further decision to authorise force.
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419
RESOLUTION ES-10/13
ON ILLEGAL ISRAELI ACTIONS IN OCCUPIED EAST JERUSALEM
AND THE REST OF THE OCCUPIED PALESTINIAN TERRITORY
ADOPTED BY THE GENERAL ASSEMBLY
AT ITS 10th EMERGENCY SPECIAL SESSION
ON 27 OCTOBER 2003
The General Assembly,
Recalling its relevant resolutions, including resolutions of the tenth emergency special
session,
Recalling also Security Council resolutions 242 (1967) of 22 November 1967, 267
(1969) of 3 July 1969, 298 (1971) of 25 September 1971, 446 (1979) of 22 March 1979,
452 (1979) of 20 July 1979, 465 (1980) of 1 March 1980, 476 (1980) of 30 June 1980,
478 (1980) of 20 August 1980, 904 (1994) of 18 March 1994, 1073 (1996) of 28
September 1996 and 1397 (2002) of 12 March 2002,
Reaffirming the principle of the inadmissibility of the acquisition of territory by force,
Reaffirming also its vision of a region where two States, Israel and Palestine, live side
by side within secure and recognised borders,
Condemning all acts of violence, terrorism and destruction,
Condemning in particular the suicide bombings and their recent intensification with
the attack in Haifa,
Condemning the bomb attack in the Gaza Strip, which resulted in the death of three
American security officers,
Deploring the extrajudicial killings and their recent intensification, in particular the
attack on 20 October 2003 in Gaza,
Stressing the urgency of ending the current violent situation on the ground, the need
to end the occupation that began in 1967, and the need to achieve peace based on the
vision of two States mentioned above,
Particularly concerned that the route marked out for the wall under construction by
Israel, the occupying Power, in the Occupied Palestinian Territory, including in and
around East Jerusalem, could prejudge future negotiations and make the two-State
solution physically impossible to implement and would cause further humanitarian
hardship to the Palestinians,
Reiterating its call upon Israel, the occupying Power, to fully and effectively respect the
Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12
August 1949,
1
1 United Nations, Treaty Series, vol. 75, No. 973.
420
Reiterating its opposition to settlement activities in the Occupied Territories and to any
activities involving the confiscation of land, disruption of the livelihood of protected
persons and the de facto annexation of land,
(1) Demands that Israel stop and reverse the construction of the wall in the Occupied
Palestinian Territory, including in and around East Jerusalem, which is in
departure of the Armistice Line of 1949 and is in contradiction to relevant
provisions of international law;
(2) Calls upon both parties to fulfil their obligations under relevant provisions of
the Road Map,
2
the Palestinian Authority to undertake visible efforts on the
ground to arrest, disrupt and restrain individuals and groups conducting and
planning violent attacks, and the government of Israel to take no actions under-
mining trust, including deportations and attacks on civilians and extrajudicial
killings;
(3) Requests the Secretary-General to report on compliance with the present
resolution periodically, with the first report on compliance with paragraph 1
above to be submitted within one month and upon receipt of which further
actions should be considered, if necessary, within the United Nations system;
(4) Decides to adjourn the tenth emergency special session temporarily and to
authorise the current President of the General Assembly to resume its meeting
upon request from Member States.
RESOLUTION ES-10/248
ON ILLEGAL ISRAELI ACTIONS IN OCCUPIED EAST JERUSALEM
AND THE REST OF THE OCCUPIED PALESTINIAN TERRITORY
ADOPTED BY THE GENERAL ASSEMBLY AT ITS MEETING
ON 24 NOVEMBER 2003
REPORT OF THE SECRETARY-GENERAL PREPARED PURSUANT TO
GENERAL ASSEMBLY RESOLUTION ES-10/13
3
Summary
The present report is submitted pursuant to General Assembly resolution ES-10/13 of
21 October 2003, adopted at the resumed tenth emergency special session of the
Assembly (see at p. 419). In paragraph 1 of the resolution, the Assembly demand[ed]
that Israel stop and reverse the construction of the wall in the Occupied Palestinian
Territory, including in and around East Jerusalem, which is in departure of the Armistice
Line of 1949 and is in contradiction to relevant provisions of international law. In
keeping with the request of the General Assembly in paragraph 1 of resolution ES-10/
13, I have concluded that Israel is not in compliance with the Assemblys demand that
it stop and reverse the construction of the wall in the Occupied Palestinian Territory.
(A) Introduction
(1) The present report is submitted pursuant to General Assembly resolution ES-10/
13 of 21 October 2003, adopted at the resumed tenth emergency special session
of the Assembly. In paragraph 1 of the resolution, the Assembly demand[ed]
2 S/2003/529, annex.
3 See also in Cases, Scobbie, p.495.
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421
4 Palestinians often call this system the Separation Wall and Israelis use the term Security
Fence. For the purposes of the present report, the more general term the Barrier is used.
that Israel stop and reverse the construction of the wall in the Occupied Palestinian
Territory, including in and around East Jerusalem, which is in departure of the
Armistice Line of 1949 and is in contradiction to relevant provisions of international
law. In paragraph 3, the Assembly requested the Secretary-General to report
periodically on compliance with the resolution, but with the first report on
compliance with paragraph 1.
(2) This report focuses on the period from 14 April 2002, when the Government of
Israel first decided to build a system of fences, walls, ditches and barriers in the
West Bank (the Barrier
4
), to 20 November 2003. It is primarily based on publicly
available research carried out by United Nations offices on the ground. Other
materials available to the United Nations, including those in the public domain,
were used in the preparation of this report. The Government of Israel and the
Palestinian Authority were consulted in the preparation of this report and asked
to provide information they deemed relevant. Some of that information is attached
in annexes I and II.
(B) Compliance with resolution ES-10/13
(3) Paragraph 1 of resolution ES-10/13 states that the United Nations General
Assembly demands that Israel stop and reverse the construction of the wall in the
Occupied Palestinian Territory, including in and around East Jerusalem, which is
in departure of the Armistice Line of 1949 and is in contradiction to relevant
provisions of international law. Israel has not complied with that demand. It has
not stopped or reversed the ongoing construction of the Barrier. This is shown by
the following information from United Nations field monitoring:
Ongoing construction in the occupied Palestinian territory, along the north-
east boundary of the West Bank and east of Jerusalem.
Levelling of land for a section in the north-west of the West Bank.
Ongoing issuance of land requisition orders.
Release of the first official map showing the planned route of the Barrier and
declaration of intent to complete it by 2005.
(C) Route of the Barrier
(1) Background to the construction of the Barrier
(4) The Government of Israel has since 1996 considered plans to halt infiltration into
Israel from the central and northern West Bank, with the first Cabinet approval of
such a plan in July 2001. After a sharp rise in Palestinian terror attacks in the
spring of 2002, the Cabinet approved Government Decision 64/B on 14 April
2002, which called for construction of 80 kilometres (km) of the Barrier in the
three areas of the West Bank. The Seam Zone Administration, headed by the
director-general of the Israeli Ministry of Defence, was established to implement
that decision.
(5) On 23 June 2002, Israels Cabinet Decision 2077 approved the first phase of a
continuous Barrier in parts of the West Bank and Jerusalem. The decision stated
that the Barrier is a security measure that does not represent a political or
other border. The route discussed was not made public; the decision stated that
the exact and final route of the fence will be decided by the prime minister and
minister of defence. On 14 August 2002, the Cabinet approved the final route
422
for Phase A construction, which ultimately included 123 km in the northern West
Bank and 19.5 km around Jerusalem, almost entirely on land occupied by Israel
in 1967.
(2) The overall route
(6) On 1 October 2003, after nearly a year of construction on various sections, the
Israeli Cabinet approved a full Barrier route in Decision 883. Ministry of Defence
documents say the planned route of the Barrier will form one continuous line
stretching 720 km along the West Bank. A map of the route, which shows both
completed and planned sections, was posted on the Ministry of Defence website
on 23 October 2003, two days after the General Assembly approved resolution
ES-10/13.
(7) Much of the completed Barrier, excluding East Jerusalem, runs close to the Green
Line, though within Palestinian territory. The completed Barrier deviates more
than 7.5 km from the Green Line in certain places to incorporate settlements,
while encircling Palestinian population areas. The part of the Barrier that roughly
hews to the Green Line is along the northernmost part of the West Bank. A 1-2 km
stretch west of Tulkarm appears to run on the Israeli side of the Green Line. The
planned route, if fully constructed, would deviate up to 22 km
2
in places from the
Green Line.
(8) Based on the route on the official map, including depth barriers and East
Jerusalem, approximately 975 km
2
, or 16.6 per cent of the entire West Bank, will
lie between the Barrier and the Green Line. This area is home to approximately
17,000 Palestinians in the West Bank and 220,000 in East Jerusalem. If the full
route is completed, another 160,000 Palestinians will live in enclaves, areas where
the Barrier almost completely encircles communities and tracts of land. The
planned route incorporates nearly 320,000 settlers, including approximately
178,000 in occupied East Jerusalem.
(3) Description of the Barrier
(9) According to Israeli Ministry of Defence documents and field observation, the
Barrier complex consists of the following main components: a fence with electronic
sensors designed to alert Israeli military forces of infiltration attempts; a ditch
(up to 4 metres deep); an asphalt two-lane patrol road; a trace road (a strip of
sand smoothed to detect footprints) that runs parallel to the fence; and a stack of
six coils of barbed wire marking the complexs perimeter. This complex has an
average width of 50-70 metres, increasing to as much as 100 metres in some places.
(10) Ministry of Defence documents say that various observation systems are being
installed along the fence. These apparently include cameras and watchtowers in
some places where the Barrier consists of concrete walls. A planned allied
component is depth barriers, secondary barriers that loop out from the main
Barrier to the east. Two depth barriers are part of the planned route in the central
West Bank. Another three depth barriers in the northern West Bank that have
appeared on some unofficial maps have not been built and are not part of the 23
October official map.
(11) Concrete walls cover about 8.5 km of the approximately 180 km of the Barrier
completed or under construction. These parts of the Barrier, which the Israel
Defence Forces (IDF) terms gunfire protection walls, are generally found where
Palestinian population centres abut Israel, such as the towns of Qalqiliya and
Tulkarm, and parts of Jerusalem. Some are currently under construction, while
others were planned and built separately from the current project, such as part of
Selected Documents
423
the wall next to Qalqiliya, which was built in 1996 in conjunction with a highway
project.
(4) Phases of the route completed or under construction
(12) Phase A (excluding occupied East Jerusalem). This initial part of the Barrier, which
runs 123 km from the Salem checkpoint north of Jenin to the settlement of Elkana
in the central West Bank, was declared completed 31 July 2003, although work
continues in some parts. Much of Phase A construction deviates from the Green
Line, and incorporates Israeli settlements. United Nations offices on the ground
calculate that the Barrier has put approximately 56,000 Palestinians in enclaves,
areas encircled by the Barrier that open into the West Bank. They include about
5,300 Palestinians in closed areas between the Barrier and the Green Line where
Israel requires permits or identity cards for Palestinians who reside there or want
to enter the area. The enclaves include the town of Qalqiliya (population 41,606)
and, to its south, a cluster of three villages with about 7,300 residents.
(13) Phase B. This section is planned to run 45 km east from the Salem checkpoint
along the northern part of the Green Line to the Jordan Valley, and is scheduled
for completion in December 2003. It does not incorporate any settlements or
create any Palestinian enclaves.
(14) Jerusalem. The existing barrier and planned route around Jerusalem is beyond the
Green Line and, in some cases, the eastern municipal boundary of Jerusalem as
annexed by Israel. Completed sections include two parts totalling 19.5 km that
flank Jerusalem, and a 1.5 km concrete wall in the eastern Jerusalem neighbour-
hood of Abu Dis. The planned route includes a section due east of Jerusalem that
links up with the existing Abu Dis wall; levelling of land has started at its southern
end. A second section runs through the northern Jerusalem suburb of Al-Ram,
which will be cut off from Jerusalem, and links with the existing northern barrier
section at the Qalandia checkpoint. A third section will surround five Palestinian
communities north-west of Jerusalem, creating a 2,000 acre enclave with 14,500
people. A gap remains in the planned route due east of Jerusalem near the
settlement of Maale Adumim.
(5) Planned phases of the route
(15) Elkana to Ofer Camp. This section links the north-western end of the Jerusalem
Barrier with the southern point of Phase A construction at Elkana. It includes two
depth barriers that together create enclaves encompassing around 29,000 acres
and 72,000 Palestinians in 24 communities. The route deviates up to 22 km from
the Green Line to include several large settlements and approximately 52,000
settlers in the Ariel salient. Cabinet Decision 883 of 1 October does not explain
the nature of the Barrier around this area, where the Government of Israel has
said it would build disconnected horseshoes around the settlements. However,
the official map shows a planned route that seamlessly encompasses the settlement
block.
(16) Southern West Bank. According to the official map, this route of the Barrier in the
southern West Bank runs 115 km from the Har Gilo settlement near Jerusalem to
the Carmel settlement near the Green Line south-east of Hebron. It cuts several
kilometres into the West Bank to encompass the Gush Etzion settlement block
and the settlement of Efrat, creating enclaves with around 17,000 Palestinians.
Ministry of Defence documents say that construction on this stage, which has not
started yet, is slated for completion in 2005.
424
(6) Process of land requisition as part of the Barriers construction
(17) Land obtained for the building of the Barrier is requisitioned by military orders
in the West Bank and by the Ministry of Defence in Jerusalem Municipality. The
orders generally become effective on the date they are signed and are valid even if
they are not personally served on the property owners. Most orders are valid until
31 December 2005 and can be renewed.
(18) Orders are sometimes left on the property itself or served on the village council
without personal service being given to the property owner. Landowners have
one or two weeks from the date of signature to object to the relevant committee.
The property owner can also petition the High Court of Israel. According to IDF,
over 400 first-instance objections have been submitted and 15 petitions have been
lodged with the High Court on behalf of families or entire villages.
(7) The establishment of closed areas
(19) On 2 October 2003, IDF issued a series of legal instruments (the Orders)
pertaining to land in the north-west part of the West Bank that lies between the
Barrier and the Green Line (Closed Area). The Orders provide that no person
will enter the seam zone and no one will remain there and will affect 73km
2
and
approximately 5,300 Palestinians living in 15 communities.
(20) The Orders introduce a new system of residency status. Only on issuance of a
permit or ID card by IDF will residents of the Closed Area be able to remain and
will others be granted access to it. Israeli citizens, Israeli permanent residents and
those eligible to immigrate to Israel in accordance with the Law of Return can
remain in or move freely to, from and within the Closed Area without a similar
permit.
(21) At the date of writing, most residents in the Closed Area had received permits
although they were only generally valid for a period of one, three or six months.
As for those non-residents seeking access to the Closed Areas, indications are that
a majority of those who need or want access to the Closed Area had not yet received
permits.
(22) Even with a permit or ID card, access and egress are regulated by the schedule of
operation of the access gates, which is reportedly limited at present to openings
of 15 minutes three times a day. However, if residents are denied regular access to
their farmlands, jobs and services, a concern is raised that Palestinians may leave
the area. In this connection, it should be noted that in the past, Israel has
expropriated land for not being adequately cultivated, pursuant to military orders
or through enforcement of domestic legislation in the West Bank inherited from
the Ottoman and Jordanian regimes.
(D) Humanitarian and socio-economic impact
(23) The Barrier, in both completed and planned sections, appears likely to deepen
the fragmentation of the West Bank created by the closure system Israel imposed
after the outbreak of hostilities in September/October 2000. The main component
of the closure system is a series of checkpoints and blockades that severely restrict
the movement of Palestinian people and goods, causing serious socio-economic
harm. Recent reports by the World Bank and the United Nations show that
construction has dramatically increased such damage in communities along its
route, primarily through the loss of, or severely limited access to, land, jobs and
markets. According to the Palestinian Central Bureau of Statistics, so far the Barrier
has separated 30 localities from health services, 22 from schools, eight from primary
water sources and three from electricity networks.
Selected Documents
425
(24) Palestinians living in enclaves are facing some of the harshest consequences of
the Barriers construction and route. For example, the Barrier surrounds the town
of Qalqiliya, with the only exit and entry point controlled by an Israeli military
checkpoint. This has isolated the town from almost all its agricultural land, while
surrounding villages are separated from its markets and services. A United Nations
hospital in the town has experienced a 40 per cent decrease in caseloads. Further
north, the Barrier is currently creating an enclave around the town of Nazlat Issa,
whose commercial areas have been destroyed through Israels demolition of at
least seven residences and 125 shops.
(25) Completed sections of the Barrier have had a serious impact on agriculture in
what is considered the breadbasket of the West Bank. In 2000, the three
governorates of Jenin, Tulkarm and Qalqiliya produced U.S.$ 220 million in
agricultural output, or 45 per cent of total agricultural production in the West
Bank. Palestinian cultivated land lying on the Barriers route has been requisitioned
and destroyed and tens of thousands of trees have been uprooted. Farmers
separated from their land, and often also from their water sources, must cross the
Barrier via the controlled gates. Recent harvests from many villages have perished
due to the irregular opening times and the apparently arbitrary granting or denial
of passage. According to a recent World Food Programme survey, this has increased
food insecurity in the area, where there are 25,000 new recipients of food assistance
as a direct consequence of the Barriers construction.
(26) The Barriers route through Jerusalem will also severely restrict movement and
access for tens of thousands of urban Palestinians. A concrete wall through the
neighbourhood of Abu Dis has already affected access to jobs and essential social
services, notably schools and hospitals. The northern section of the Barrier has
harmed long-standing commercial and social connections for tens of thousands
of people, a phenomenon that will be repeated along much of the route through
Jerusalem. The residences of some Jerusalem identity card holders are outside
the Barrier, while those of some West Bank identity card holders are inside the
Barrier. This raises concerns about the future status of residency for Palestinians
in occupied East Jerusalem under current Israeli laws.
(27) If Israel persists in its construction of the Barrier, some of its economic and
humanitarian impact can be limited if Israel allows regular movement through a
series of 41 gates to Palestinians living east of the Barrier who need to access their
farms, jobs or services in the Closed Area to the west. Despite posted opening
times, the gates are not open with any regularity. Moreover, such access cannot
compensate for incomes lost from the Barriers destruction of property, land and
businesses. This raises concerns over violations of the rights of the Palestinians to
work, health, education and an adequate standard of living.
(E) Observations
(28) In keeping with the request of the General Assembly in resolution ES-10/13, I
have concluded that Israel is not in compliance with the Assemblys demand that
it stop and reverse the construction of the wall in the Occupied Palestinian
Territory.
(29) Israel has repeatedly stated that the Barrier is a temporary measure. However, the
scope of construction and the amount of occupied West Bank land that is either
being requisitioned for its route or that will end up between the Barrier and the
Green Line are of serious concern and have implications for the future. In the
midst of the Road Map process, when each party should be making good-faith
confidence-building gestures, the Barriers construction in the West Bank cannot,
in this regard, be seen as anything but a deeply counterproductive act. The placing
426
of most of the structure on occupied Palestinian land could impair future
negotiations.
(30) I acknowledge and recognise Israels right and duty to protect its people against
terrorist attacks. However, that duty should not be carried out in a way that is in
contradiction to international law, that could damage the longer-term prospects
for peace by making the creation of an independent, viable and contiguous
Palestinian State more difficult, or that increases suffering among the Palestinian
people.
(31) After so many years of bloodshed, dislocation and suffering, it should be clear to
all of us, as well as to the parties, that only through a just, comprehensive and
lasting peace settlement based on Security Council resolutions 242 (1967) and
338 (1973) can the security of both Palestinians and Israelis be assured. There is
wide support in the international community for a two-State solution Israel and
Palestine living side by side in peace and security within secure and recognised
borders, as called for by the Security Council in resolutions 1397 (2002) and 1515
(2003). That support must urgently be marshalled to assist the parties in achieving
that end.
ANNEX I
Summary legal position of the Government of Israel
(1) Much of the information in this Annex is derived from materials provided to the
United Nations by the Government of Israel. Other information comes from
publicly available sources.
(2) Israels Parliament has not incorporated the Hague Regulations into domestic
legislation; however, Israeli authorities have relied on Article 23 (g) of those
Regulations, which permits the seizure of property if demanded by the necessities
of war.
(3) Despite having ratified the Fourth Geneva Convention, Israel has not incorporated
it into its domestic legislation. Nor does it agree that the Convention is applicable
to the Occupied Palestinian Territory, citing the lack of recognition of the territory
as sovereign prior to its annexation by Jordan and Egypt and, therefore, not a
territory of a High Contracting Party as required by the Convention.
(4) Israel denies that the International Covenant on Civil and Political Rights and the
International Covenant on Economic, Social and Cultural Rights, both of which
it has signed, are applicable to the occupied Palestinian territory. It asserts that
humanitarian law is the protection granted in a conflict situation such as the one
in the West Bank and Gaza Strip, whereas human rights treaties were intended for
the protection of citizens from their own Government in times of peace.
(5) Regarding the route, the Government of Israel states that neither the Green
Line nor the armistice line were confirmed as international boundaries in Security
Council resolutions 242 (1967) and 338 (1973), which call upon the parties to
negotiate. The legal status of the occupied Palestinian territory remains disputed.
(6) According to its statement made before the General Assembly on 20 October
2003, the Government of Israel believes the construction of the Barrier is consistent
with Article 51 of the Charter of the United Nations, its inherent right to self-
defence and Security Council resolutions 1368 (2001) and 1373 (2001). Israeli
officials say the Barrier has contributed to a significant decline in the number of
attacks inside Israel. According to the Ministry of Foreign Affairs, between 1 April
2002 and 31 December 2002, 17 suicide bombers crossed into Israel from the
central West Bank and killed 89 Israelis. Between 1 January 2003 and 5 November
Selected Documents
427
2003, after part of the Barrier had been completed, eight suicide bombers entered
Israel from the central West Bank and killed 51 Israelis.
(7) The Government of Israel has asserted that land requisitions issued to enable the
building of the Barrier are proportionate given the number of deaths and injuries
sustained by Israeli citizens and are carried out in accordance with both
international and local law.
(8) The Government of Israel argues: there is no change in ownership of the land;
compensation is available for use of the land, crop yield or damage to the land;
residents can petition the Supreme Court to halt or alter construction and there
is no change in resident status. It says that the completion of the Barrier will in
fact, allow the Israel Defense Forces (IDF) to reduce its presence in the West Bank
and remove roadblocks and checkpoints, thereby improving overall humanitarian
conditions in the West Bank.
(9) The Ministry of Foreign Affairs emphasised that the permit process for the Closed
Area is still in its early stages and that Israel is committed that residents and those
that use the area will be able to live in and use the area with minimal interference.
(10) As for access to the Closed Area by non-residents, the Ministry of Foreign Affairs
has advised that permits, as opposed to ID Cards, will be issued based upon need.
They explain that the activity of the individual will affect the nature of the permit;
for example, a teacher would receive a permit for an entire school year and an
olive farmer based on seasonal needs, and the health-care worker might have a
permit for all occasions. While legal proof of ownership or residence would be
best, it will not be necessary to receive official documentation proving ownership.
Those wishing to visit friends and family would be permitted access subject to the
security situation.
ANNEX II
Summary legal position of the Palestine Liberation Organization
(1) The Palestine Liberation Organization legal opinion requested for this report
cites several provisions and principles of international law as bearing on the
question of the legality of the construction of the Barrier within the occupied
Palestinian territory. Among them:
Israel has a right to undertake certain limited measures in cases of strict military
necessity and to protect its legitimate security interests. However, these measures
must be taken in accordance with international human rights and humanitarian
law.
The measure of constructing the wall within the occupied Palestinian territory
and related measures taken by the Government of Israel constitute violations
of international humanitarian law because those measures are not justified by
military necessity and violate the principle of proportionality. The harm those
measures have caused include:
extensive destruction of Palestinian homes and other property and
appropriation of property not justified by military necessity, contrary to the
Fourth Geneva Convention;
infringements on the freedom of movement contrary to the International
Covenant on Civil and Political Rights and in violation of the obligations of
the Government of Israel under the Fourth Geneva Convention;
infringements on the rights to education, work, an adequate standard of
living and health care contrary to the Convention on the Rights of the Child
and the International Covenant on Economic, Social and Cultural Rights
428
and in violation of the obligations of the Government of Israel pursuant to
the Fourth Geneva Convention;
violations of the prohibition against arbitrary interference of home contrary
to the International Covenant on Economic, Social and Cultural Rights and
the freedom to choose ones residence contrary to the International Covenant
on Civil and Political Rights and in violation of the protections provided in
the Fourth Geneva Convention as a result of the permit system established
in the Closed Area.
(2) This violation of these Palestinian rights, including facilitating the entry into and
residency of Israeli civilians in the Closed Area while restricting Palestinian access
to and residency in that Area, are causing long-term, permanent harm, including
the transfer of Palestinians, contrary to the Fourth Geneva Convention and the
International Covenant on Economic, Social and Cultural Rights.
Because these Israeli measures are neither necessary nor proportionate, they
give rise to criminal liability by the Government of Israel for violations of human
rights and some prima facie grave breaches of the Fourth Geneva Convention.
The requirement of proportionality can more likely be met by building the
Barrier within Israeli territory or even on the Green Line and by evacuating the
Israeli civilian nationals currently residing in the Occupied West Bank contrary
to international law.
The construction of the Barrier is an attempt to annex the territory contrary to
international law.
The de facto annexation of land interferes with the territorial sovereignty and
consequently with the right of the Palestinians to self-determination.
Reaffirming its previous resolutions 242 (1967), 338 (1973), 446 (1979), 1322 (2000),
1397 (2002), 1402 (2002), 1403 (2002), 1405 (2002), 1435 (2002) and 1515 (2003),
Reiterating the obligation of Israel, the occupying power, to abide scrupulously by its
legal obligations and responsibilities under the Fourth Geneva Convention relative to
the Protection of Civilian Persons in Time of War of 12 August 1949,
Calling on Israel to address its security needs within the boundaries of international
law,
Expressing its grave concern at the continued deterioration of the situation on the
ground in the territory occupied by Israel since 1967,
Condemning the killing of Palestine civilians that took place in the Rafeh area,
Gravely concerned by the recent demolition of homes committed by Israel, the
occupying power in Rafeh Refugee Camp,
Recalling the obligations of the Palestinian Authority and the Government of Israel
under the Road Map,
Condemning all acts of violence, terror and destruction,
Reaffirming its support for the Road Map, endorsed in its Resolution 1515 (2003),
(1) Calls on Israel to respect its obligations under international humanitarian law,
and insists, in particular, on its obligation not to underake demolition of homes
contrary to that law;
(2) Expresses grave concern regarding the humanitarian situation of Palestinians made
homeless in the Rafeh area and calls for the provision of emergency assistance
to them;
Selected Documents
429
(3) Calls for the cessation of violence and for respect of and adherence to legal
obligations, including those under international humanitarian law;
(4) Calls on both parties to immediately implement their obligations under the Road
Map;
(5) Decides to remain seized of the matter.
430
A Performance-Based Road Map to
a Permanent Solution to the
Israeli-Palestinian Conflict*
The following is the text of the Middle East peace proposal jointly developed by a
diplomatic grouping known as the Quartet: The United States, the United Nations, the
European Union and Russia. It was formally released on 30 April 2003.
The following is a performance-based and goal driven roadmap, with clear phases,
timelines, target dates, and benchmarks aiming at progress through reciprocal steps by
the two parties in the political, security, economic, humanitarian, and institution-building
fields, under the auspices of the Quartet. The destination is a final and comprehensive
settlement of the Israeli-Palestinian conflict by 2005, as presented in President Bushs
speech of 24 June 2002, and welcomed by the European Union, Russia and the United
Nations in the 16 July and 17 September 2002 Quartet Ministerial statements.
A two state solution to the Israeli-Palestinian conflict will only be achieved through
an end to violence and terrorism, when the Palestinian people have a leadership acting
decisively against terror and willing and able to build a practising democracy based on
tolerance and liberty, and through Israels readiness to do what is necessary for a
democratic Palestinian state to be established, and a clear, unambiguous acceptance by
both parties of the goal of a negotiated settlement as described below. The Quartet will
assist and facilitate implementation of the plan, starting in Phase I, including direct
discussions between the parties as required. The plan establishes a realistic timeline for
implementation. However, as a performance-based plan, progress will require and
depend upon the good faith efforts of the parties, and their compliance with each of
the obligations outlined below. Should the parties perform their obligations rapidly,
progress within and through the phases may come sooner than indicated in the plan.
Non-compliance with obligations will impede progress.
A settlement, negotiated between the parties, will result in the emergence of an
independent, democratic, and viable Palestinian state living side by side in peace and
security with Israel and its other neighbours. The settlement will resolve the Israeli-
Palestinian conflict, and end the occupation that began in 1967, based on the
foundations of the Madrid Conference, the principle of land for peace, UNSCRs 242,
338 and 1397, agreements previously reached by the parties, and the initiative of Saudi
Crown Prince Abdullah endorsed by the Beirut Arab League Summit calling for
acceptance of Israel as a neighbour living in peace and security, in the context of a
comprehensive settlement. This initiative is a vital element of international efforts to
promote a comprehensive peace on all tracks, including the Syrian-Israeli and Lebanese-
Israeli tracks.
The Quartet will meet regularly at senior levels to evaluate the parties performance
on implementation of the plan. In each phase, the parties are expected to perform
their obligations in parallel, unless otherwise indicated.
* Formally released on 30 April 2003.
Selected Documents
431
PHASE I: ENDING TERROR AND VIOLENCE, NORMALISING PALESTINIAN
LIFE AND BUILDING PALESTINIAN INSTITUTIONS
PRESENT TO MAY 2003
In Phase I, the Palestinians immediately undertake an unconditional cessation of
violence according to the steps outlined below; such action should be accompanied by
supportive measures undertaken by Israel. Palestinians and Israelis resume security
cooperation based on the Tenet Work Plan to end violence, terrorism, and incitement
through restructured and effective Palestinian security services. Palestinians undertake
comprehensive political reform in preparation for statehood, including drafting a
Palestinian constitution, and free, fair and open elections upon the basis of those
measures. Israel takes all necessary steps to help normalise Palestinian life. Israel
withdraws from Palestinian areas occupied from 28 September 2000 and the two sides
restore the status quo that existed at that time, as security performance and cooperation
progress. Israel also freezes all settlement activity, consistent with the Mitchell report.
At the outset of Phase I:
Palestinian leadership issues unequivocal statement reiterating Israels right to exist
in peace and security and calling for an immediate and unconditional cease-fire to
end armed activity and all acts of violence against Israelis anywhere. All official
Palestinian institutions end incitement against Israel.
Israeli leadership issues unequivocal statement affirming its commitments to the
two-state vision of an independent, viable, sovereign Palestinian state living in peace
and security alongside Israel, as expressed by President Bush, and calling for an
immediate end to violence against Palestinians everywhere. All official Israeli
institutions end incitement against Palestinians.
SECURITY
Palestinians declare an unequivocal end to violence and terrorism and undertake
visible efforts on the ground to arrest, disrupt, and restrain individuals and groups
conducting and planning violent attacks on Israelis anywhere.
Rebuilt and refocused Palestinian Authority security apparatus begins sustained,
targeted, and effective operations aimed at confronting all those engaged in terror
and dismantlement of terrorist capabilities and infrastructure. This includes
commencing confiscation of illegal weapons and consolidation of security authority,
free of association with terror and corruption.
GOI takes no actions undermining trust, including deportations, attacks on civilians;
confiscation and/or demolition of Palestinian homes and property, as a punitive
measure or to facilitate Israeli construction; destruction of Palestinian institutions
and infrastructure; and other measures specified in the Tenet Work Plan.
Relying on existing mechanisms and on-the-ground resources, Quartet representatives
begin informal monitoring and consult with the parties on establishment of a formal
monitoring mechanism and its implementation.
Implementation, as previously agreed, of U.S. rebuilding, training and resumed
security cooperation plan in collaboration with outside oversight board (U.S.-Egypt-
Jordan). Quartet support for efforts to achieve a lasting, comprehensive cease-fire.
All Palestinian security organisations are consolidated into three services reporting
to an empowered Interior Minister.
Restructured/retrained Palestinian security forces and IDF counterparts progressively
resume security cooperation and other undertakings in implementation of the Tenet
Work Plan, including regular senior-level meetings, with the participation of U.S.
security officials.
432
Arab states cut off public and private funding and all other forms of support for
groups supporting and engaging in violence and terror.
All donors providing budgetary support for the Palestinians channel these funds
through the Palestinian Ministry of Finances Single Treasury Account.
As comprehensive security performance moves forward, IDF withdraws progressively
from areas occupied since 28 September 2000 and the two sides restore the status
quo that existed prior to 28 September 2000. Palestinian security forces redeploy to
areas vacated by IDF.
PALESTINIAN INSTITUTION-BUILDING
Immediate action on credible process to produce draft constitution for Palestinian
statehood. As rapidly as possible, constitutional committee circulates draft Palestinian
constitution, based on strong parliamentary democracy and Cabinet with empowered
Prime Minister, for public comment/debate. Constitutional committee proposes draft
document for submission after elections for approval by appropriate Palestinian
institutions.
Appointment of interim prime minister or cabinet with empowered executive
authority/decision-making body.
GOI fully facilitates travel of Palestinian officials for PLC and Cabinet sessions,
internationally supervised security retraining, electoral and other reform activity,
and other supportive measures related to the reform efforts.
Continued appointment of Palestinian ministers empowered to undertake
fundamental reform. Completion of further steps to achieve genuine separation of
powers, including any necessary Palestinian legal reforms for this purpose.
Establishment of independent Palestinian election commission. PLC reviews and
revises elections law.
Palestinian performance on judicial, administrative, and economic benchmarks, as
established by the International Task Force on Palestinian Reform.
As early as possible, and based upon the above measures and in the context of open
debate and transparent candidate selection/electoral campaign based on a free,
multi-party process, Palestinians hold free, open, and fair elections.
GOI facilitates Task Force election assistance, registration of voters, movement of
candidates and voting officials. Support for NGOs involved in the election process.
GOI reopens Palestinian Chamber of Commerce and other closed Palestinian
institutions in East Jerusalem based on a commitment that these institutions operate
strictly in accordance with prior agreements between the parties.
HUMANITARIAN RESPONSE
Israel takes measures to improve the humanitarian situation. Israel and Palestinians
implement in full all recommendations of the Bertini report to improve humanitarian
conditions, lifting curfews, and easing restrictions on movement of persons and goods,
and allowing full, safe, and unfettered access of international and humanitarian
personnel.
AHLC reviews the humanitarian situation and prospects for economic development
in the West Bank and Gaza and launches a major donor assistance effort, including
to the reform effort.
GOI and PA continue revenue clearance process and transfer of funds, including
areas, in accordance with agreed, transparent monitoring mechanism.
Selected Documents
433
CIVIL SOCIETY
Continued donor support, including increased funding through PVOs/NGOs, for
people to people programmes, private sector development and civil society initiatives.
SETTLEMENTS
GOI immediately dismantles settlement outposts erected since March 2001.
Consistent with the Mitchell report, GOI freezes all settlement activity (including
natural growth of settlements).
PHASE II: TRANSITION
JUNE 2003 TO DECEMBER 2003
In the second phase, efforts are focused on the option of creating an independent
Palestinian state with provisional borders and attributes of sovereignty, based on the
new constitution, as a way station to a permanent status settlement. As has been noted,
this goal can be achieved when the Palestinian people have a leadership acting decisively
against terror, willing and able to build a practising democracy based on tolerance and
liberty. With such a leadership, reformed civil institutions and security structures, the
Palestinians will have the active support of the Quartet and the broader international
community in establishing an independent, viable, state.
Progress into Phase II will be based upon the consensus judgment of the Quartet of
whether conditions are appropriate to proceed, taking into account performance of
both parties. Furthering and sustaining efforts to normalise Palestinian lives and build
Palestinian institutions, Phase II starts after Palestinian elections and ends with the
possible creation of an independent Palestinian state with provisional borders in 2003.
Its primary goals are continued comprehensive security performance and effective
security cooperation, continued normalisation of Palestinian life and institution-
building, further building on and sustaining of the goals outlined in Phase I, ratification
of a democratic Palestinian constitution, formal establishment of office of Prime
Minister, consolidation of political reform, and the creation of a Palestinian state with
provisional borders.
International Conference: Convened by the Quartet, in consultation with the parties,
immediately after the successful conclusion of Palestinian elections, to support
Palestinian economic recovery and launch a process, leading to establishment of an
independent Palestinian state with provisional borders.
Such a meeting would be inclusive, based on the goal of a comprehensive Middle
East peace (including between Israel and Syria, and Israel and Lebanon), and based
on the principles described in the preamble to this document.
Arab states restore pre-intifada links to Israel (trade offices, etc.).
Revival of multilateral engagement on issues including regional water resources,
environment, economic development, refugees, and arms control issues.
New constitution for democratic, independent Palestinian state is finalised and
approved by appropriate Palestinian institutions. Further elections, if required, should
follow approval of the new constitution.
Empowered reform cabinet with office of Prime Minister formally established,
consistent with draft constitution.
Continued comprehensive security performance, including effective security
cooperation on the bases laid out in Phase I.
434
Creation of an independent Palestinian state with provisional borders through a
process of Israeli-Palestinian engagement. Launched by the international conference.
As part of this process, implementation of prior agreements, to enhance maximum
territorial contiguity, including further action on settlements in conjunction with
establishment of a Palestinian state with provisional borders.
Enhanced international role in monitoring transition, with the active, sustained,
and operational support of the Quartet.
Quartet members promote international recognition of Palestinian state, including
possible UN membership.
PHASE III: PERMANENT STATUS AGREEMENT AND
END OF THE ISRAELI-PALESTINIAN CONFLICT
2004 TO 2005
Progress into Phase III, based on consensus judgment of Quartet, and taking into
account actions of both parties and Quartet monitoring. Phase III objectives are
consolidation of reform and stabilisation of Palestinian institutions, sustained, effective
Palestinian security performance, and Israeli-Palestinian negotiations aimed at a
permanent status agreement in 2005.
Second International Conference: Convened by the Quartet, in consultation with
the parties, at the beginning of 2004 to endorse agreement reached on an
independent Palestinian state with provisional borders and formally to launch a
process with the active, sustained, and operational support of the Quartet, leading
to a final, permanent status resolution in 2005, including on borders, Jerusalem,
refugees, settlements; and, to support progress toward a comprehensive Middle East
settlement between Israel and Lebanon and Israel and Syria, to be achieved as soon
as possible.
Continued comprehensive, effective progress on the reform agenda laid out by the
Task Force in preparation for final status agreement.
Continued sustained and effective security performance, and sustained, effective
security cooperation on the basis laid out in Phase I.
International efforts to facilitate reform and stabilise Palestinian institutions and
the Palestinian economy, in preparation for final status agreement.
Parties reach final and comprehensive permanent status agreement that ends the
Israeli-Palestinian conflict in 2005, through a settlement negotiated between the
parties based on UNSCR 242, 338, and 1397, that ends the occupation that began in
1967, and includes an agreed, just, fair, and realistic solution to the refugee issue,
and a negotiated resolution of the status of Jerusalem that takes into account the
political and religious concerns of both sides, and protects the religious interests of
Jews, Christians, and Muslims worldwide, and fulfils the vision of two states, Israel
and sovereign, independent, democratic and viable Palestine, living side-by-side in
peace and security.
Arab state acceptance of full normal relations with Israel and security for all the
states of the region in the context of a compressive Arab-Israeli peace.
Selected Documents
435
The Geneva Accord
Draft Permanent Status Agreement
Launched in December 2003 at Geneva
Preamble
The State of Israel (hereinafter Israel) and the Palestine Liberation Organization
(hereinafter PLO), the representative of the Palestinian people (hereinafter the
Parties):
Reaffirming their determination to put an end to decades of confrontation and conflict,
and to live in peaceful coexistence, mutual dignity and security based on a just, lasting,
and comprehensive peace and achieving historic reconciliation;
Recognising that peace requires the transition from the logic of war and confrontation
to the logic of peace and cooperation, and that acts and words characteristic of the
state of war are neither appropriate nor acceptable in the era of peace;
Affirming their deep belief that the logic of peace requires compromise, and that the
only viable solution is a two-state solution based on UNSCR 242 and 338;
Affirming that this agreement marks the recognition of the right of the Jewish people
to statehood and the recognition of the right of the Palestinian people to state-hood,
without prejudice to the equal rights of the Parties respective citizens;
Recognising that after years of living in mutual fear and insecurity, both peoples need
to enter an era of peace, security and stability, entailing all necessary actions by the
parties to guarantee the realisation of this era;
Recognising each others right to peaceful and secure existence within secure and
recognised boundaries free from threats or acts of force;
Determined to establish relations based on cooperation and the commitment to live
side by side as good neighbours aiming both separately and jointly to contribute to the
wellbeing of their peoples;
Reaffirming their obligation to conduct themselves in conformity with the norms of
international law and the Charter of the United Nations;
Confirming that this Agreement is concluded within the framework of the Middle
East peace process initiated in Madrid in October 1991, the Declaration of Principles
of 13 September 1993, the subsequent agreements including the Interim Agreement
of September 1995, the Wye River Memorandum of October 1998 and the Sharm El-
Sheikh Memorandum of 4 September 1999, and the permanent status negotiations
including the Camp David Summit of July 2000, the Clinton Ideas of December 2000,
and the Taba Negotiations of January 2001;
Reiterating their commitment to UNSCRs 242, 338 and 1397 and confirming their
understanding that this Agreement is based on, will lead to, and by its fulfilment will
constitute the full implementation of these resolutions and to the settlement of the
Israeli-Palestinian conflict in all its aspects;
436
Declaring that this Agreement constitutes the realisation of the permanent status
peace component envisaged in President Bushs speech of 24 June 2002 and in the
Quartet Road Map process;
Declaring that this Agreement marks the historic reconciliation between the
Palestinians and Israelis, and paves the way to reconciliation between the Arab World
and Israel and the establishment of normal, peaceful relations between the Arab states
and Israel in accordance with the relevant clauses of the Beirut Arab League Resolution
of 28 March 2002; and
Resolved to pursue the goal of attaining a comprehensive regional peace, thus
contributing to stability, security, development and prosperity throughout the region;
have agreed on the following:
Article 1 Purpose of the Permanent Status Agreement
(1) The Permanent Status Agreement (hereinafter this Agreement) ends the era of
conflict and ushers in a new era based on peace, cooperation, and good neighbourly
relations between the Parties.
(2) The implementation of this Agreement will settle all the claims of the Parties arising
from events occurring prior to its signature. No further claims related to events
prior to this Agreement may be raised by either Party.
Article 2 Relations between the Parties
(1) The state of Israel shall recognise the state of Palestine (hereinafter Palestine)
upon its establishment. The state of Palestine shall immediately recognise the
state of Israel.
(2) The state of Palestine shall be the successor to the PLO with all its rights and
obligations.
(3) Israel and Palestine shall immediately establish full diplomatic and consular
relations with each other and will exchange resident Ambassadors, within one
month of their mutual recognition.
(4) The Parties recognise Palestine and Israel as the homelands of their respective
peoples. The Parties are committed not to interfere in each others internal affairs.
(5) This Agreement supersedes all prior agreements between the Parties.
(6) Without prejudice to the commitments undertaken by them in this Agreement,
relations between Israel and Palestine shall be based upon the provisions of the
Charter of the United Nations.
(7) With a view to the advancement of the relations between the two States and peoples,
Palestine and Israel shall cooperate in areas of common interest. These shall
include, but are not limited to, dialogue between their legislatures and state
institutions, cooperation between their appropriate local authorities, promotion
of non-governmental civil society cooperation, and joint programmes and
exchange in the areas of culture, media, youth, science, education, environment,
health, agriculture, tourism, and crime prevention. The Israeli-Palestinian
Cooperation Committee will oversee this cooperation in accordance with Article
8.
(8) The Parties shall cooperate in areas of joint economic interest, to best realise the
human potential of their respective peoples. In this regard, they will work bilaterally,
regionally, and with the international community to maximise the benefit of peace
to the broadest cross-section of their respective populations. Relevant standing
bodies shall be established by the Parties to this effect.
(9) The Parties shall establish robust modalities for security cooperation, and engage
in a comprehensive and uninterrupted effort to end terrorism and violence
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directed against each others persons, property, institutions or territory. This effort
shall continue at all times, and shall be insulated from any possible crises and
other aspects of the Parties relations.
(10) Israel and Palestine shall work together and separately with other parties in the
region to enhance and promote regional cooperation and coordination in spheres
of common interest.
(11) The Parties shall establish a ministerial-level Palestinian-Israeli High Steering
Committee to guide, monitor, and facilitate the process of implementation of this
Agreement, both bilaterally and in accordance with the mechanisms in Article 3
hereunder.
Article 3 Implementation and Verification Group
(1) Establishment and Composition
(a) An Implementation and Verification Group (IVG) shall hereby be established to
facilitate, assist in, guarantee, monitor, and resolve disputes relating to the
implementation of this Agreement.
(b) The IVG shall include the United States, the Russian Federation, the European
Union, the United Nations, and other parties, both regional and international, to
be agreed on by the Parties.
(c) The IVG shall work in coordination with the Palestinian-Israeli High Steering
Committee established in Article 2/11 above and subsequent to that with the Israeli-
Palestinian Cooperation Committee (IPCC) established in Article 8 hereunder.
(d) The structure, procedures, and modalities of the IVG are set forth below and
detailed in Annex X.*
(2) Structure
(a) A senior political-level contact group (Contact Group), composed of all the IVG
members, shall be the highest authority in the IVG.
(b) The Contact Group shall appoint, in consultation with the Parties, a Special
Representative who will be the principal executive of the IVG on the ground. The
Special Representative shall manage the work of the IVG and maintain constant
contact with the Parties, the Palestinian-Israeli High Steering Committee, and the
Contact Group.
(c) The IVG permanent headquarters and secretariat shall be based in an agreed-
upon location in Jerusalem.
(d) The IVG shall establish its bodies referred to in this Agreement and additional
bodies as it deems necessary. These bodies shall be an integral part of and under
the authority of the IVG.
(e) The Multinational Force (MF) established under Article 5 shall be an integral
part of the IVG. The Special Representative shall, subject to the approval of the
Parties, appoint the Commander of the MF who shall be responsible for the daily
command of the MF. Details relating to the Special Representative and MF Force
Commander are set forth in Annex X.
(f) The IVG shall establish a dispute settlement mechanism, in accordance with Article
16.
* Not included in this document.
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(3) Coordination with the Parties
A Trilateral Committee composed of the Special Representative and the Palestinian-
Israeli High Steering Committee shall be established and shall meet on at least a monthly
basis to review the implementation of this Agreement. The Trilateral Committee will
convene within 48 hours upon the request of any of the three parties represented.
(4) Functions
In addition to the functions specified elsewhere in this Agreement, the IVG shall:
(a) Take appropriate measures based on the reports it receives from the MF,
(b) Assist the Parties in implementing the Agreement and preempt and promptly
mediate disputes on the ground.
(5) Termination
In accordance with the progress in the implementation of this Agreement, and with
the fulfilment of the specific mandated functions, the IVG shall terminate its activities
in the said spheres. The IVG shall continue to exist unless otherwise agreed by the
Parties.
Article 4 Territory
(1) The International Borders between the States of Palestine and Israel
(a) In accordance with UNSCR 242 and 338, the border between the states of Palestine
and Israel shall be based on 4 June 1967 lines with reciprocal modifications on a
1:1 basis.
(b) The Parties recognise the border as the permanent, secure and recognised inter-
national boundary between them.
(2) Sovereignty and Inviolability
(a) The Parties recognise and respect each others sovereignty, territorial integrity,
and political independence, as well as the inviolability of each others territory,
including territorial waters, and airspace. They shall respect this inviolability in
accordance with this Agreement, the U.N. Charter, and other rules of international
law.
(b) The Parties recognise each others rights in their exclusive economic zones in
accordance with international law.
(3) Israeli Withdrawal
(a) Israel shall withdraw in accordance with Article 5.
(b) Palestine shall assume responsibility for the areas from which Israel withdraws.
(c) The transfer of authority from Israel to Palestine shall be in accordance with Annex
X.
(d) The IVG shall monitor, verify, and facilitate the implementation of this Article.
(4) Demarcation
(a) A Joint Technical Border Commission (Commission) composed of the two Parties
shall be established to conduct the technical demarcation of the border in
accordance with this Article. The procedures governing the work of this Commission
are set forth in Annex X.
(b) Any disagreement in the Commission shall be referred to the IVG in accordance
with Annex X.
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(c) The physical demarcation of the international borders shall be completed by the
Commission not later than nine months from the date of the entry into force of
this Agreement.
(5) Settlements
(a) The state of Israel shall be responsible for resettling the Israelis residing in
Palestinian sovereign territory outside this territory.
(b) The resettlement shall be completed according to the schedule stipulated in
Article 5.
(c) Existing arrangements in the West Bank and Gaza Strip regarding Israeli settlers
and settlements, including security, shall remain in force in each of the settlements
until the date prescribed in the timetable for the completion of the evacuation of
the relevant settlement.
(d) Modalities for the assumption of authority over settlements by Palestine are set
forth in Annex X. The IVG shall resolve any disputes that may arise during its
implementation.
(e) Israel shall keep intact the immovable property, infrastructure and facilities in Israeli
settlements to be transferred to Palestinian sovereignty. An agreed inventory shall
be drawn up by the Parties with the IVG in advance of the completion of the
evacuation and in accordance with Annex X.
(f) The state of Palestine shall have exclusive title to all land and any buildings, facilities,
infrastructure or other property remaining in any of the settlements on the date
prescribed in the timetable for the completion of the evacuation of this settlement.
(6) Corridor
(a) The states of Palestine and Israel shall establish a corridor linking the West Bank
and Gaza Strip. This corridor shall:
(i) Be under Israeli sovereignty.
(ii) Be permanently open.
(iii) Be under Palestinian administration in accordance with Annex X of this
Agreement. Palestinian law shall apply to persons using and procedures
appertaining to the corridor.
(iv) Not disrupt Israeli transportation and other infrastructural networks, or
endanger the environment, public safety or public health. Where necessary,
engineering solutions will be sought to avoid such disruptions.
(v) Allow for the establishment of the necessary infrastructural facilities linking
the West Bank and the Gaza Strip. Infrastructural facilities shall be understood
to include, inter alia, pipelines, electrical and communications cables, and
associated equipment as detailed in Annex X.
(vi) Not be used in contravention of this Agreement.
(b) Defensive barriers shall be established along the corridor and Palestinians shall
not enter Israel from this corridor, nor shall Israelis enter Palestine from the
corridor.
(c) The Parties shall seek the assistance of the international community in securing
the financing for the corridor.
(d) The IVG shall guarantee the implementation of this Article in accordance with
Annex X.
(e) Any disputes arising between the Parties from the operation of the corridor shall
be resolved in accordance with Article 16.
(f) The arrangements set forth in this clause may only be terminated or revised by
agreement of both Parties.
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Article 5 Security
(1) General Security Provisions
(a) The Parties acknowledge that mutual understanding and cooperation in security-
related matters will form a significant part of their bilateral relations and will further
enhance regional security. Palestine and Israel shall base their security relations
on cooperation, mutual trust, good neighbourly relations, and the protection of
their joint interests.
(b) Palestine and Israel each shall:
(i) Recognise and respect the others right to live in peace within secure and
recognised boundaries free from the threat or acts of war, terrorism and
violence;
(ii) refrain from the threat or use of force against the territorial integrity or
political independence of the other and shall settle all disputes between them
by peaceful means;
(iii) refrain from joining, assisting, promoting or cooperating with any coalition,
organisation or alliance of a military or security character, the objectives or
activities of which include launching aggression or other acts of hostility against
the other;
(iv) refrain from organising, encouraging, or allowing the formation of irregular
forces or armed bands, including mercenaries and militias within their
respective territory and prevent their establishment. In this respect, any
existing irregular forces or armed bands shall be disbanded and prevented
from reforming at any future date;
(v) refrain from organising, assisting, allowing, or participating in acts of violence
in or against the other or acquiescing in activities directed toward the
commission of such acts.
(c) To further security cooperation, the Parties shall establish a high-level Joint Security
Committee that shall meet on at least a monthly basis. The Joint Security Committee
shall have a permanent joint office, and may establish such sub-committees as it
deems necessary, including sub-committees to immediately resolve localised tensions.
(2) Regional Security
(a) Israel and Palestine shall work together with their neighbours and the international
community to build a secure and stable Middle East, free from weapons of mass
destruction, both conventional and non-conventional, in the context of a
comprehensive, lasting, and stable peace, characterised by reconciliation, goodwill,
and the renunciation of the use of force.
(b) To this end, the Parties shall work together to establish a regional security regime.
(3) Defence Characteristics of the Palestinian State
(a) No armed forces, other than as specified in this Agreement, will be deployed or
stationed in Palestine.
(b) Palestine shall be a non-militarised state, with a strong security force. Accordingly,
the limitations on the weapons that may be purchased, owned, or used by the
Palestinian Security Force (PSF) or manufactured in Palestine shall be specified in
Annex X. Any proposed changes to Annex X shall be considered by a trilateral
committee composed of the two Parties and the MF. If no agreement is reached in
the trilateral committee, the IVG may make its own recommendations.
(i) No individuals or organisations in Palestine other than the PSF and the organs
of the IVG, including the MF, may purchase, possess, carry or use weapons
except as provided by law.
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(c) The PSF shall:
(i) maintain border control;
(ii) maintain law and order and perform police functions;
(iii) perform intelligence and security functions;
(iv) prevent terrorism;
(v) conduct rescue and emergency missions; and
(vi) supplement essential community services when necessary.
(d) The MF shall monitor and verify compliance with this clause.
(4) Terrorism
(a) The Parties reject and condemn terrorism and violence in all its forms and shall
pursue public policies accordingly. In addition, the parties shall refrain from actions
and policies that are liable to nurture extremism and create conditions conducive
to terrorism on either side.
(b) The Parties shall take joint and, in their respective territories, unilateral
comprehensive and continuous efforts against all aspects of violence and terrorism.
These efforts shall include the prevention and preemption of such acts, and the
prosecution of their perpetrators.
(c) To that end, the Parties shall maintain ongoing consultation, cooperation, and
exchange of information between their respective security forces.
(d) A Trilateral Security Committee composed of the two Parties and the United States
shall be formed to ensure the implementation of this Article. The Trilateral Security
Committee shall develop comprehensive policies and guidelines to fight terrorism
and violence.
(5) Incitement
(a) Without prejudice to freedom of expression and other internationally recognised
human rights, Israel and Palestine shall promulgate laws to prevent incitement to
irredentism, racism, terrorism and violence and vigorously enforce them.
(b) The IVG shall assist the Parties in establishing guidelines for the implementation
of this clause, and shall monitor the Parties adherence thereto.
(6) Multinational Force
(a) A Multinational Force (MF) shall be established to provide security guarantees to
the Parties, act as a deterrent, and oversee the implementation of the relevant
provisions of this Agreement.
(b) The composition, structure and size of the MF are set forth in Annex X.
(c) To perform the functions specified in this Agreement, the MF shall be deployed in
the state of Palestine. The MF shall enter into the appropriate Status of Forces
Agreement (SOFA) with the state of Palestine.
(d) In accordance with this Agreement, and as detailed in Annex X, the MF shall:
(i) In light of the non-militarised nature of the Palestinian state, protect the
territorial integrity of the state of Palestine.
(ii) Serve as a deterrent against external attacks that could threaten either of
the Parties.
(iii) Deploy observers to areas adjacent to the lines of the Israeli withdrawal during
the phases of this withdrawal, in accordance with Annex X.
(iv) Deploy observers to monitor the territorial and maritime borders of the state
of Palestine, as specified in clause 5/13.
(v) Perform the functions on the Palestinian international border crossings
specified in clause 5/12.
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(vi) Perform the functions relating to the early warning stations as specified in
clause 5/8.
(vii) Perform the functions specified in clause 5/3.
(viii) Perform the functions specified in clause 5/7.
(ix) Perform the functions specified in Article 10.
(x) Help in the enforcement of anti-terrorism measures.
(xi) Help in the training of the PSF.
(e) In relation to the above, the MF shall report to and update the IVG in accordance
with Annex X.
(f) The MF shall only be withdrawn or have its mandate changed by agreement of the
Parties.
(7) Evacuation
(a) Israel shall withdraw all its military and security personnel and equipment, including
landmines, and all persons employed to support them, and all military installations
from the territory of the state of Palestine, except as otherwise agreed in Annex X,
in stages.
(b) The staged withdrawals shall commence immediately upon entry into force of this
Agreement and shall be made in accordance with the timetable and modalities set
forth in Annex X.
(c) The stages shall be designed subject to the following principles:
(i) The need to create immediate clear contiguity and facilitate the early
implementation of Palestinian development plans.
(ii) Israels capacity to relocate, house and absorb settlers. While costs and
inconveniences are inherent in such a process, these shall not be unduly
disruptive.
(iii) The need to construct and operationalise the border between the two states.
(iv) The introduction and effective functioning of the MF, in particular on the
eastern border of the state of Palestine.
(d) Accordingly, the withdrawal shall be implemented in the following stages:
(i) The first stage shall include the areas of the state of Palestine and shall be
completed within nine months.
(ii) The second and third stages shall include the remainder of the territory of
the state of Palestine and shall be completed within 21 months of the end of
the first stage.
(e) Israel shall complete its withdrawal from the territory of the state of Palestine within
30 months of the entry into force of this Agreement, and in accordance with this
Agreement.
(f) Israel will maintain a small military presence in the Jordan Valley under the authority
of the MF and subject to the MF SOFA as detailed in Annex X for an additional 36
months. The stipulated period may be reviewed by the Parties in the event of relevant
regional developments, and may be altered by the Parties consent.
(g) In accordance with Annex X, the MF shall monitor and verify compliance with this
clause.
(8) Early Warning Stations
(a) Israel may maintain two EWS in the northern, and central West Bank at the locations
set forth in Annex X.
(b) The EWS shall be staffed by the minimal required number of Israeli personnel
and shall occupy the minimal amount of land necessary for their operation as set
forth in Annex X.
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(c) Access to the EWS will be guaranteed and escorted by the MF.
(d) Internal security of the EWS shall be the responsibility of Israel. The perimeter
security of the EWS shall be the responsibility of the MF.
(e) The MF and the PSF shall maintain a liaison presence in the EWS. The MF shall
monitor and verify that the EWS is being used for purposes recognised by this
Agreement as detailed in Annex X.
(f) The arrangements set forth in this Article shall be subject to review in ten years,
with any changes to be mutually agreed. Thereafter, there will be five-yearly reviews
whereby the arrangements set forth in this Article may be extended by mutual
consent.
(g) If at any point during the period specified above a regional security regime is
established, then the IVG may request that the Parties review whether to continue
or revise operational uses for the EWS in light of these developments. Any such
change will require the mutual consent of the Parties.
(9) Airspace
(a) Civil Aviation
(i) The Parties recognise as applicable to each other the rights, privileges and
obligations provided for by the multilateral aviation agreements to which they
are both party, particularly by the 1944 Convention on International Civil
Aviation (the Chicago Convention) and the 1944 International Air Services
Transit Agreement.
(ii) In addition, the Parties shall, upon entry into force of this Agreement, establish
a trilateral committee composed of the two Parties and the IVG to design the
most efficient management system for civil aviation, including those relevant
aspects of the air traffic control system. In the absence of consensus the IVG
may make its own recommendations.
(b) Training
(i) The Israeli Air Force shall be entitled to use the Palestinian sovereign airspace
for training purposes in accordance with Annex X, which shall be based on
rules pertaining to IAF use of Israeli airspace.
(ii) The IVG shall monitor and verify compliance with this clause. Either Party
may submit a complaint to the IVG whose decision shall be conclusive.
(iii) The arrangements set forth in this clause shall be subject to review every ten
years, and may be altered or terminated by the agreement of both Parties.
(10) Electromagnetic Sphere
(a) Neither Partys use of the electromagnetic sphere may interfere with the other
Partys use.
(b) Annex X shall detail arrangements relating to the use of the electromagnetic
sphere.
(c) The IVG shall monitor and verify the implementation of this clause and Annex X.
(d) Any Party may submit a complaint to the IVG, whose decision shall be conclusive.
(11) Law Enforcement
The Israeli and Palestinian law enforcement agencies shall cooperate in combating
illicit drug trafficking, illegal trafficking in archaeological artifacts and objects of arts,
cross-border crime, including theft and fraud, organised crime, trafficking in women
and minors, counterfeiting, pirate TV and radio stations, and other illegal activity.
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(12) International Border Crossings
(a) The following arrangements shall apply to borders crossing between the state of
Palestine and Jordan, the state of Palestine and Egypt, as well as airport and seaport
entry points to the state of Palestine.
(b) All border crossings shall be monitored by joint teams composed of members of
the PSF and the MF. These teams shall prevent the entry into Palestine of any
weapons, materials or equipment that are in contravention of the provisions of
this Agreement.
(c) The MF representatives and the PSF will have, jointly and separately, the authority
to block the entry into Palestine of any such items. If at any time a disagreement
regarding the entrance of goods or materials arises between the PSF and the MF
representatives, the PSF may bring the matter to the IVG, whose binding
conclusions shall be rendered within 24 hours.
(d) This arrangement shall be reviewed by the IVG after five years to determine its
continuation, modification or termination. Thereafter, the Palestinian party may
request such a review on an annual basis.
(e) In passenger terminals, for 30 months, Israel may maintain an unseen presence
in a designated on-site facility, to be staffed by members of the MF and Israelis,
utilising appropriate technology. The Israeli side may request that the MF-PSF
conduct further inspections and take appropriate action.
(f) For the following two years, these arrangements will continue in a specially
designated facility in Israel, utilising appropriate technology. This shall not cause
delays beyond the procedures outlined in this clause.
(g) In cargo terminals, for 30 months, Israel may maintain an unseen presence in a
designated on-site facility, to be staffed by members of the MF and Israelis, utilising
appropriate technology. The Israeli side may request that the MF-PSF conduct
further inspections and take appropriate action. If the Israeli side is not satisfied
by the MF-PSF action, it may demand that the cargo be detained pending a decision
by an MF inspector. The MF inspectors decision shall be binding and final, and
shall be rendered within 12 hours of the Israeli complaint.
(h) For the following three years, these arrangements will continue from a specially
designated facility in Israel, utilising appropriate technology. This shall not cause
delays beyond the timelines outlined in this clause.
(i) A high-level trilateral committee composed of representatives of Palestine, Israel,
and the IVG shall meet regularly to monitor the application of these procedures
and correct any irregularities, and may be convened on request.
(j) The details of the above are set forth in Annex X.
(13) Border Control
(a) The PSF shall maintain border control as detailed in Annex X.
(b) The MF shall monitor and verify the maintenance of border control by the PSF.
Article 6 Jerusalem
(1) Religious and Cultural Significance:
(a) The Parties recognise the universal historic, religious, spiritual, and cultural
significance of Jerusalem and its holiness enshrined in Judaism, Christianity, and
Islam. In recognition of this status, the Parties reaffirm their commitment to
safeguard the character, holiness, and freedom of worship in the city and to respect
the existing division of administrative functions and traditional practices between
different denominations.
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(b) The Parties shall establish an inter-faith body consisting of representatives of the
three monotheistic faiths, to act as a consultative body to the Parties on matters
related to the citys religious significance and to promote inter-religious under-
standing and dialogue. The composition, procedures, and modalities for this body
are set forth in Annex X.
(2) Capital of Two States
The Parties shall have their mutually recognised capitals in the areas of Jerusalem under
their respective sovereignty.
(3) Sovereignty
Sovereignty in Jerusalem shall not prejudice nor be prejudiced by the arrangements
set forth below.
(4) Border Regime
The border regime shall be designed according to the provisions of Article 11, and
taking into account the specific needs of Jerusalem (e.g., movement of tourists and
intensity of border crossing use including provisions for Jerusalemites) and the provisions
of this Article.
(5) al-Haram al-Sharif/Temple Mount (Compound)
(a) International Group
(i) An International Group, composed of the IVG and other parties to be agreed
upon by the Parties, including members of the Organisation of the Islamic
Conference (OIC), shall hereby be established to monitor, verify, and assist
in the implementation of this clause.
(ii) For this purpose, the International Group shall establish a Multinational
Presence on the Compound, the composition, structure, mandate and
functions of which are set forth in Annex X.
(iii) The Multinational Presence shall have specialised detachments dealing with
security and conservation. The Multinational Presence shall make periodic
conservation and security reports to the International Group. These reports
shall be made public.
(iv) The Multinational Presence shall strive to immediately resolve any problems
arising and may refer any unresolved disputes to the International Group
that will function in accordance with Article 16.
(v) The Parties may at any time request clarifications or submit complaints to the
International Group which shall be promptly investigated and acted upon.
(vi) The International Group shall draw up rules and regulations to maintain
security on and conservation of the Compound. These shall include lists of
the weapons and equipment permitted on the site.
(b) Regulations Regarding the Compound
(i) In view of the sanctity of the Compound, and in light of the unique religious
and cultural significance of the site to the Jewish people, there shall be no
digging, excavation, or construction on the Compound, unless approved by
the two Parties. Procedures for regular maintenance and emergency repairs
on the Compound shall be established by the International Group after
consultation with the Parties.
(ii) The state of Palestine shall be responsible for maintaining the security of the
Compound and for ensuring that it will not be used for any hostile acts against
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Israelis or Israeli areas. The only arms permitted on the Compound shall be
those carried by the Palestinian security personnel and the security detachment
of the Multinational Presence.
(iii) In light of the universal significance of the Compound, and subject to security
considerations and to the need not to disrupt religious worship or decorum
on the site as determined by the Waqf, visitors shall be allowed access to the
site. This shall be without any discrimination and generally be in accordance
with past practice.
(c) Transfer of Authority
(i) At the end of the withdrawal period stipulated in Article 5/7, the state of
Palestine shall assert sovereignty over the Compound.
(ii) The International Group and its subsidiary organs shall continue to exist and
fulfil all the functions stipulated in this Article unless otherwise agreed by the
two Parties.
(6) The Wailing Wall
The Wailing Wall shall be under Israeli sovereignty.
(7) The Old City
(a) Significance of the Old City
(i) The Parties view the Old City as one whole enjoying a unique character. The
Parties agree that the preservation of this unique character together with
safe-guarding and promoting the welfare of the inhabitants should guide the
administration of the Old City.
(ii) The Parties shall act in accordance with the UNESCO World Cultural Heritage
List regulations, in which the Old City is a registered site.
(b) IVG Role in the Old City
(i) Cultural Heritage
(1) The IVG shall monitor and verify the preservation of cultural heritage in
the Old City in accordance with the UNESCO World Cultural Heritage
List rules. For this purpose, the IVG shall have free and unimpeded access
to sites, documents, and information related to the performance of this
function.
(2) The IVG shall work in close coordination with the Old City Committee
of the Jerusalem Coordination and Development Committee (JCDC),
including in devising a restoration and preservation plan for the Old
City.
(ii) Policing
(1) The IVG shall establish an Old City Policing Unit (PU) to liaise with,
coordinate between, and assist the Palestinian and Israeli police forces in
the Old City, to defuse localised tensions and help resolve disputes, and
to perform policing duties in locations specified in and according to
operational procedures detailed in Annex X.
(2) The PU shall periodically report to the IVG.
(iii) Either Party may submit complaints in relation to this clause to the IVG, which
shall promptly act upon them in accordance with Article 16.
(c) Free Movement within the Old City
Movement within the Old City shall be free and unimpeded subject to the provisions
of this article and rules and regulations pertaining to the various holy sites.
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(d) Entry into and Exit from the Old City
(i) Entry and exit points into and from the Old City will be staffed by the
authorities of the state under whose sovereignty the point falls, with the
presence of PU members, unless otherwise specified.
(ii) With a view to facilitating movement into the Old City, each Party shall take
such measures at the entry points in its territory as to ensure the preservation
of security in the Old City. The PU shall monitor the operation of the entry
points.
(iii) Citizens of either Party may not exit the Old City into the territory of the
other Party unless they are in possession of the relevant documentation that
entitles them to. Tourists may only exit the Old City into the territory of the
Party which they posses valid authorisation to enter.
(e) Suspension, Termination, and Expansion
(i) Either Party may suspend the arrangements set forth in Article 6/7/iii in
cases of emergency for one week. The extension of such suspension for longer
than a week shall be pursuant to consultation with the other Party and the
IVG at the Trilateral Committee established in Article 3/3.
(ii) This clause shall not apply to the arrangements set forth in Article 6/7/vi.
(iii) Three years after the transfer of authority over the Old City, the Parties shall
review these arrangements. These arrangements may only be terminated by
agreement of the Parties.
(iv) The Parties shall examine the possibility of expanding these arrangements
beyond the Old City and may agree to such an expansion.
(f) Special Arrangements
(i) Along the way from the Jaffa Gate to the Zion Gate there will be permanent
and guaranteed arrangements for Israelis regarding access, freedom of
movement, and security, as set forth in Annex X. The IVG shall be responsible
for the implementation of these arrangements.
(ii) Without prejudice to Palestinian sovereignty, Israeli administration of the
Citadel will be as outlined in Annex X.
(g) Colour-Coding of the Old City
A visible colour-coding scheme shall be used in the Old City to denote the sovereign
areas of the respective Parties.
(h) Policing
(i) An agreed number of Israeli police shall constitute the Israeli Old City police
detachment and shall exercise responsibility for maintaining order and day-
to-day policing functions in the area under Israeli sovereignty.
(ii) An agreed number of Palestinian police shall constitute the Palestinian Old
City police detachment and shall exercise responsibility for maintaining order
and day-to-day policing functions in the area under Palestinian sovereignty.
(iii) All members of the respective Israeli and Palestinian Old City police
detachments shall undergo special training, including joint training exercises,
to be administered by the PU.
(iv) A special Joint Situation Room, under the direction of the PU and
incorporating members of the Israeli and Palestinian Old City police
detachments, shall facilitate liaison on all relevant matters of policing and
security in the Old City.
(i) Arms
No person shall be allowed to carry or possess arms in the Old City, with the
exception of the Police Forces provided for in this agreement. In addition, each
Party may grant special written permission to carry or possess arms in areas under
its sovereignty.
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(j) Intelligence and Security
(i) The Parties shall establish intensive intelligence cooperation regarding the
Old City, including the immediate sharing of threat information.
(ii) A trilateral committee composed of the two Parties and representatives of the
United States shall be established to facilitate this cooperation.
(8) Mount of Olives Cemetery
(a) The Jewish Cemetery on the Mount of Olives shall be under Israeli administration;
Israeli law shall apply to persons using and procedures appertaining to this area in
accordance with Annex X.
(i) There shall be a designated road to provide free, unlimited, and unimpeded
access to the Cemetery.
(ii) The IVG shall monitor the implementation of this clause.
(iii) This arrangement may only be terminated by the agreement of both Parties.
(9) Special Cemetery Arrangements
Arrangements shall be established in the two cemeteries, Mount Zion Cemetery and
the German Colony Cemetery, to facilitate and ensure the continuation of the current
burial and visitation practices, including the facilitation of access.
(10) The Western Wall Tunnel
(a) The Western Wall Tunnel shall be under Israeli administration, including:
(i) Unrestricted Israeli access and right to worship and conduct religious practices.
(ii) Responsibility for the preservation and maintenance of the site in accordance
with this Agreement and without damaging structures above, under IVG
supervision.
(iii) Israeli policing.
(iv) IVG monitoring.
(v) The Northern Exit of the Tunnel shall only be used for exit and may only be
closed in case of emergency as stipulated in Article 6/7.
(b) This arrangement may only be terminated by the agreement of both Parties.
(11) Municipal Coordination
(a) The two Jerusalem municipalities shall form a Jerusalem Coordination and
Development Committee (JCDC) to oversee the cooperation and coordination
between the Palestinian Jerusalem municipality and the Israeli Jerusalem
municipality. The JCDC and its sub-committees shall be composed of an equal
number of representatives from Palestine and Israel. Each side will appoint members
of the JCDC and its sub-committees in accordance with its own modalities.
(b) The JCDC shall ensure that the coordination of infrastructure and services best
serves the residents of Jerusalem, and shall promote the economic development
of the city to the benefit of all. The JCDC will act to encourage cross-community
dialogue and reconciliation.
(c) The JCDC shall have the following sub-committees:
(i) A Planning and Zoning Committee: to ensure agreed planning and zoning
regulations in areas designated in Annex X.
(ii) A Hydro Infrastructure Committee: to handle matters relating to drinking
water delivery, drainage, and wastewater collection and treatment.
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(iii) A Transport Committee: to coordinate relevant connectedness and
compatibility of the two road systems and other issues pertaining to transport.
(iv) An Environmental Committee: to deal with environmental issues affecting
the quality of life in the city, including solid waste management.
(v) An Economic and Development Committee: to formulate plans for economic
development in areas of joint interest, including in the areas of transportation,
seam line commercial cooperation, and tourism.
(vi) A Police and Emergency Services Committee: to coordinate measures for the
maintenance of public order and crime prevention and the provision of
emergency services;
(vii) An Old City Committee: to plan and closely coordinate the joint provision of
the relevant municipal services, and other functions stipulated in Article 6/7.
(viii)Other Committees as agreed in the JCDC.
(12) Israeli Residency of Palestinian Jerusalemites
Palestinian Jerusalemites who currently are permanent residents of Israel shall lose
this status upon the transfer of authority to Palestine of those areas in which they reside.
(13) Transfer of authority
The Parties will apply in certain socio-economic spheres interim measures to ensure
the agreed, expeditious, and orderly transfer of powers and obligations from Israel to
Palestine. This shall be done in a manner that preserves the accumulated socio-economic
rights of the residents of East Jerusalem.
Article 7 Refugees
(1) Significance of the Refugee Problem
(a) The Parties recognise that, in the context of two independent states, Palestine and
Israel, living side by side in peace, an agreed resolution of the refugee problem is
necessary for achieving a just, comprehensive and lasting peace between them.
(b) Such a resolution will also be central to stability building and development in the
region.
(2) UNGAR 194, UNSC Resolution 242, and the Arab Peace Initiative
(a) The Parties recognise that UNGAR 194, UNSCR 242, and the Arab Peace Initiative
(Article 2/ii) concerning the rights of the Palestinian refugees represent the basis
for resolving the refugee issue, and agree that these rights are fulfilled according
to Article 7 of this Agreement.
(3) Compensation
(a) Refugees shall be entitled to compensation for their refugeehood and for loss of
property. This shall not prejudice or be prejudiced by the refugees permanent
place of residence.
(b) The Parties recognise the right of states that have hosted Palestinian refugees to
remuneration.
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(4) Choice of Permanent Place of Residence (PPR)
The solution to the PPR aspect of the refugee problem shall entail an act of informed
choice on the part of the refugee to be exercised in accordance with the options and
modalities set forth in this agreement. PPR options from which the refugees may choose
shall be as follows:
(a) The state of Palestine, in accordance with clause (a) below.
(b) Areas in Israel being transferred to Palestine in the land swap, following assumption
of Palestinian sovereignty, in accordance with clause (a) below.
(c) Third Countries, in accordance with clause (b) below.
(d) The state of Israel, in accordance with clause (c) below.
(e) Present Host countries, in accordance with clause (d) below.
(i) PPR options (i) and (ii) shall be the right of all Palestinian refugees and shall
be in accordance with the laws of the state of Palestine.
(ii) Option (iii) shall be at the sovereign discretion of third countries and shall
be in accordance with numbers that each third country will submit to the
International Commission. These numbers shall represent the total number
of Palestinian refugees that each third country shall accept.
(iii) Option (iv) shall be at the sovereign discretion of Israel and will be in
accordance with a number that Israel will submit to the International
Commission. This number shall represent the total number of Palestinian
refugees that Israel shall accept. As a basis, Israel will consider the average of
the total numbers submitted by the different third countries to the
International Commission.
(iv) Option (v) shall be in accordance with the sovereign discretion of present
host countries. Where exercised this shall be in the context of prompt and
extensive development and rehabilitation programmes for the refugee
communities.
Priority in all the above shall be accorded to the Palestinian refugee population in
Lebanon.
(5) Free and Informed Choice
The process by which Palestinian refugees shall express their PPR choice shall be on
the basis of a free and informed decision. The Parties themselves are committed and
will encourage third parties to facilitate the refugees free choice in ex-pressing their
preferences, and to countering any attempts at interference or organised pressure on
the process of choice. This will not prejudice the recognition of Palestine as the
realisation of Palestinian self-determination and statehood.
(6) End of Refugee Status
Palestinian refugee status shall be terminated upon the realisation of an individual
refugees permanent place of residence (PPR) as determined by the International
Commission.
(7) End of Claims
This agreement provides for the permanent and complete resolution of the Palestinian
refugee problem. No claims may be raised except for those related to the implementation
of this agreement.
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(8) International Role
The Parties call upon the international community to participate fully in the
comprehensive resolution of the refugee problem in accordance with this Agreement,
including, inter alia, the establishment of an International Commission and an
International Fund.
(9) Property Compensation
(a) Refugees shall be compensated for the loss of property resulting from their
displacement.
(b) The aggregate sum of property compensation shall be calculated as follows:
(i) The Parties shall request the International Commission to appoint a Panel of
Experts to estimate the value of Palestinians property at the time of
displacement.
(ii) The Panel of Experts shall base its assessment on the UNCCP records, the
records of the Custodian for Absentee Property, and any other records it deems
relevant. The Parties shall make these records available to the Panel.
(iii) The Parties shall appoint experts to advise and assist the Panel in its work.
(iv) Within six months, the Panel shall submit its estimates to the Parties.
(v) The Parties shall agree on an economic multiplier, to be applied to the
estimates, to reach a fair aggregate value of the property.
(c) The aggregate value agreed to by the Parties shall constitute the Israeli lump
sum contribution to the International Fund. No other financial claims arising
from the Palestinian refugee problem may be raised against Israel.
(d) Israels contribution shall be made in instalments in accordance with Schedule X.
(e) The value of the Israeli fixed assets that shall remain intact in former settlements
and transferred to the state of Palestine will be deducted from Israels contribution
to the International Fund. An estimation of this value shall be made by the
International Fund, taking into account assessment of damage caused by the
settlements.
(10) Compensation for Refugeehood
(a) A Refugeehood Fund shall be established in recognition of each individuals
refugeehood. The Fund, to which Israel shall be a contributing party, shall be
overseen by the International Commission. The structure and financing of the
Fund is set forth in Annex X.
(b) Funds will be disbursed to refugee communities in the former areas of UNRWA
operation, and will be at their disposal for communal development and
commemoration of the refugee experience. Appropriate mechanisms will be
devised by the International Commission whereby the beneficiary refugee
communities are empowered to determine and administer the use of this Fund.
(11) The International Commission (Commission)
(a) Mandate and Composition
(i) An International Commission shall be established and shall have full and
exclusive responsibility for implementing all aspects of this Agreement
pertaining to refugees.
(ii) In addition to themselves, the Parties call upon the United Nations, the United
States, UNRWA, the Arab host countries, the European Union, Switzerland,
Canada, Norway, Japan, the World Bank, the Russian Federation, and others
to be the members of the Commission.
452
(iii) The Commission shall:
(1) Oversee and manage the process whereby the status and PPR of Palestinian
refugees is determined and realised.
(2) Oversee and manage, in close cooperation with the host states, the
rehabilitation and development programmes.
(3) Raise and disburse funds as appropriate.
(iv) The Parties shall make available to the Commission all relevant documentary
records and archival materials in their possession that it deems necessary for
the functioning of the Commission and its organs. The Commission may
request such materials from all other relevant parties and bodies, including,
inter alia, UNCCP and UNRWA.
(b) Structure
(i) The Commission shall be governed by an Executive Board (Board)
composed of representatives of its members.
(ii) The Board shall be the highest authority in the Commission and shall make
the relevant policy decisions in accordance with this Agreement.
(iii) The Board shall draw up the procedures governing the work of the
Commission in accordance with this Agreement.
(iv) The Board shall oversee the conduct of the various Committees of the
Commission. The said Committees shall periodically report to the Board in
accordance with procedures set forth thereby.
(v) The Board shall create a Secretariat and appoint a Chair thereof. The Chair
and the Secretariat shall conduct the day-to-day operation of the Commission.
(c) Specific Committees
(i) The Commission shall establish the Technical Committees specified below.
(ii) Unless otherwise specified in this Agreement, the Board shall determine the
structure and procedures of the Committees.
(iii) The Parties may make submissions to the Committees as deemed necessary.
(iv) The Committees shall establish mechanisms for resolution of disputes arising
from the interpretation or implementation of the provisions of this Agreement
relating to refugees.
(v) The Committees shall function in accordance with this Agreement, and shall
render binding decisions accordingly.
(vi) Refugees shall have the right to appeal decisions affecting them according to
mechanisms established by this Agreement and detailed in Annex X.
(d) Status-Determination Committee:
(i) The Status-Determination Committee shall be responsible for verifying refugee
status.
(ii) UNRWA registration shall be considered as rebuttable presumption (prima
facie proof) of refugee status.
(e) Compensation Committee:
(i) The Compensation Committee shall be responsible for administering the
implementation of the compensation provisions.
(ii) The Committee shall disburse compensation for individual property pursuant
to the following modalities:
(1) Either a fixed per capita award for property claims below a specified value.
This will require the claimant to only prove title, and shall be processed
according to a fast-track procedure, or
(2) A claims-based award for property claims exceeding a specified value for
immovables and other assets. This will require the claimant to prove both
title and the value of the losses.
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(iii) Annex X shall elaborate the details of the above including, but not limited to,
evidentiary issues and the use of UNCCP, Custodian for Absentees Property,
and UNRWA records, along with any other relevant records.
(f) Host State Remuneration Committee:
There shall be remuneration for host states.
(g) Permanent Place of Residence Committee (PPR Committee):
The PPR Committee shall,
(i) Develop with all the relevant parties detailed programmes regarding the
implementation of the PPR options pursuant to Article 7/4 above.
(ii) Assist the applicants in making an informed choice regarding PPR options.
(iii) Receive applications from refugees regarding PPR. The applicants must indicate
a number of preferences in accordance with Article 7/4 above. The
applications shall be received no later than two years after the start of the
International Commissions operations. Refugees who do not submit such
applications within the two-year period shall lose their refugee status.
(iv) Determine, in accordance with sub-Article (a) above, the PPR of the applicants,
taking into account individual preferences and maintenance of family unity.
Applicants who do not avail themselves of the Committees PPR determination
shall lose their refugee status.
(v) Provide the applicants with the appropriate technical and legal assistance.
(vi) The PPR of Palestinian refugees shall be realised within five years of the start
of the International Commissions operations.
(h) Refugeehood Fund Committee:
The Refugeehood Fund Committee shall implement Article 7/10 as detailed in
Annex X.
(i) Rehabilitation and Development Committee:
In accordance with the aims of this Agreement and noting the above PPR
programmes, the Rehabilitation and Development Committee shall work closely
with Palestine, Host Countries and other relevant third countries and parties in
pursuing the goal of refugee rehabilitation and community development. This
shall include devising programmes and plans to provide the former refugees with
opportunities for personal and communal development, housing, education,
healthcare, retraining and other needs. This shall be integrated in the general
development plans for the region.
(12) The International Fund
(a) An International Fund (the Fund) shall be established to receive contributions
outlined in this Article and additional contributions from the international
community. The Fund shall disburse monies to the Commission to enable it to
carry out its functions. The Fund shall audit the Commissions work.
(b) The structure, composition and operation of the Fund are set forth in Annex X.
(13) UNRWA
(a) UNRWA should be phased out in each country in which it operates, based on the
end of refugee status in that country.
(b) UNRWA should cease to exist five years after the start of the Commissions
operations. The Commission shall draw up a plan for the phasing out of UNRWA
and shall facilitate the transfer of UNRWA functions to host states.
454
(14) Reconciliation Programmes
(a) The Parties will encourage and promote the development of cooperation between
their relevant institutions and civil societies in creating forums for exchanging
historical narratives and enhancing mutual understanding regarding the past.
(b) The Parties shall encourage and facilitate exchanges in order to disseminate a
richer appreciation of these respective narratives, in the fields of formal and
informal education, by providing conditions for direct contacts between schools,
educational institutions and civil society.
(c) The Parties may consider cross-community cultural programmes in order to pro-
mote the goals of conciliation in relation to their respective histories.
(d) These programmes may include developing appropriate ways of commemorating
those villages and communities that existed prior to 1949.
Article 8 Israeli-Palestinian Cooperation Committee (IPCC)
(1) The Parties shall establish an Israeli-Palestinian Cooperation Committee
immediately upon the entry into force of this agreement. The IPCC shall be a
ministerial-level body with ministerial-level Co-Chairs.
(2) The IPCC shall develop and assist in the implementation of policies for cooperation
in areas of common interest including, but not limited to, infrastructure needs,
sustainable development and environmental issues, cross-border municipal
cooperation, border area industrial parks, exchange programmes, human resource
development, sports and youth, science, agriculture and culture.
(3) The IPCC shall strive to broaden the spheres and scope of cooperation between
the Parties.
Article 9 Designated Road Use Arrangements
(1) The following arrangements for Israeli civilian use will apply to the designated
roads in Palestine (Road 443, Jerusalem to Tiberias via Jordan Valley, and
Jerusalem Ein Gedi).
(2) These arrangements shall not prejudice Palestinian jurisdiction over these roads,
including PSF patrols.
(3) The procedures for designated road use arrangements will be further detailed in
Annex X.
(4) Israelis may be granted permits for use of designated roads. Proof of authorisation
may be presented at entry points to the designated roads. The sides will re-view
options for establishing a road use system based on smart card technology.
(5) The designated roads will be patrolled by the MF at all times. The MF will establish
with the states of Israel and Palestine agreed arrangements for cooperation in
emergency medical evacuation of Israelis.
(6) In the event of any incidents involving Israeli citizens and requiring criminal or
legal proceedings, there will be full cooperation between the Israeli and Palestinian
authorities according to arrangements to be agreed upon as part of the legal
cooperation between the two states. The Parties may call on the IVG to assist in this
respect.
(7) Israelis shall not use the designated roads as a means of entering Palestine without
the relevant documentation and authorisation.
(8) In the event of regional peace, arrangements for Palestinian civilian use of
designated roads in Israel shall be agreed and come into effect.
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Article 10 Sites of Religious Significance
(1) The Parties shall establish special arrangements to guarantee access to agreed
sites of religious significance, as will be detailed in Annex X. These arrangements
will apply, inter alia, to the Tomb of the Patriarchs in Hebron and Rachels Tomb
in Bethlehem, and Nabi Samuel.
(2) Access to and from the sites will be by way of designated shuttle facilities from the
relevant border crossing to the sites.
(3) The Parties shall agree on requirements and procedures for granting licences to
authorised private shuttle operators.
(4) The shuttles and passengers will be subject to MF inspection.
(5) The shuttles will be escorted on their route between the border crossing and the
sites by the MF.
(6) The shuttles shall be under the traffic regulations and jurisdiction of the Party in
whose territory they are travelling.
(7) Arrangements for access to the sites on special days and holidays are detailed in
Annex X.
(8) The Palestinian Tourist Police and the MF will be present at these sites.
(9) The Parties shall establish a joint body for the religious administration of these
sites.
(10) In the event of any incidents involving Israeli citizens and requiring criminal or
legal proceedings, there will be full cooperation between the Israeli and Palestinian
authorities according to arrangements to be agreed upon. The Parties may call
on the IVG to assist in this respect.
(11) Israelis shall not use the shuttles as a means of entering Palestine without the
relevant documentation and authorisation.
(12) The Parties shall protect and preserve the sites of religious significance listed in
Annex X and shall facilitate visitation to the cemeteries listed in Annex X.
Article 11 Border Regime
(1) There shall be a border regime between the two states, with movement between
them subject to the domestic legal requirements of each and to the provisions of
this Agreement as detailed in Annex X.
(2) Movement across the border shall only be through designated border crossings.
(3) Procedures in border crossings shall be designed to facilitate strong trade and
economic ties, including labour movement between the Parties.
(4) Each Party shall each, in its respective territory, take the measures it deems necessary
to ensure that no persons, vehicles, or goods enter the territory of the other illegally.
(5) Special border arrangements in Jerusalem shall be in accordance with Article 6
above.
Article 12 Water: still to be completed.
Article 13 Economic Relations: still to be completed.
Article 14 Legal Cooperation: still to be completed.
456
Article 15 Palestinian Prisoners and Detainees
(1) In the context of this Permanent Status Agreement between Israel and Palestine,
the end of conflict, cessation of all violence, and the robust security arrangements
set forth in this Agreement, all the Palestinian and Arab prisoners detained in the
framework of the Israeli-Palestinian conflict prior to the date of signature of this
Agreement, DD/MM/2003, shall be released in accordance with the categories set
forth below and detailed in Annex X.
(a) Category A: all persons imprisoned prior to the start of the implementation of
the Declaration of Principles on 4 May 1994, administrative detainees, and
minors, as well as women, and prisoners in ill health shall be released
immediately upon the entry into force of this Agreement.
(b) Category B: all persons imprisoned after 4 May 1994 and prior to the signature
of this Agreement shall be released no later than 18 months from the entry
into force of this Agreement, except those specified in Category C.
(c) Category C: Exceptional cases persons whose names are set forth in Annex
X shall be released in 30 months at the end of the full implementation of the
territorial aspects of this Agreement set forth in Article 5/7/v.
Article 16 Dispute Settlement Mechanism
(1) Disputes related to the interpretation or application of this Agreement shall be
resolved by negotiations within a bilateral framework to be convened by the High
Steering Committee.
(2) If a dispute is not settled promptly by the above, either Party may submit it to
mediation and conciliation by the IVG mechanism in accordance with Article 3.
(3) Disputes which cannot be settled by bilateral negotiation and/or the IVG
mechanism shall be settled by a mechanism of conciliation to be agreed upon by
the Parties.
(4) Disputes which have not been resolved by the above may be submitted by either
Party to an arbitration panel. Each Party shall nominate one member of the three-
member arbitration panel. The Parties shall select a third arbiter from the agreed
list of arbiters set forth in Annex X either by consensus or, in the case of disagree-
ment, by rotation.
Article 17 Final Clauses Including a final clause providing for a UNSCR/UNGAR
resolution endorsing the agreement and superseding the previous U.N. resolutions.
The English version of this text will be considered authoritative.
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Afghanistan
The Constitution of Afghanistan
(Unofficial Translation)
(Please refer to Pashtu and Dari version for accuracy)
Year 1382
In the Name of God, the Merciful, the Compassionate
PREAMBLE
We the people of Afghanistan:
(1) With firm faith in God Almighty and relying on His lawful mercy, and believing
in the Sacred religion of Islam,
(2) Realising the injustice and shortcoming of the past, and the numerous troubles
imposed on our country,
(3) While acknowledging the sacrifices and the historic struggles, rightful Jehad
and just resistance of all people of Afghanistan, and respecting the high position
of the martyrs for the freedom of Afghanistan,
(4) Understanding the fact that Afghanistan is a single and united country and
belongs to all ethnicities residing in this country,
(5) Observing the United Nations Charter and respecting the Universal Declaration
of Human Rights,
(6) For consolidating national unity, safeguarding independence, national
sovereignty, and territorial integrity of the country,
(7) For establishing a government based on peoples will and democracy,
(8) For creation of a civil society free of oppression, atrocity, discrimination, and
violence and based on the rule of law, social justice, protection of human rights,
and dignity, and ensuring the fundamental rights and freedoms of the people,
(9) For strengthening of political, social, economic, and defensive institutions of
the country,
(10) For ensuring a prosperous life, and sound environment for all those residing
in this land,
(11) And finally for regaining Afghanistans deserving place in the international
community,
Have adopted this constitution in compliance with historical, cultural, and social
requirements of the era, through our elected representatives in the Loya Jirga dated 14
Jaddi 1382 in the city of Kabul.
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CHAPTER ONE
THE STATE
Article One Ch. 1, Art. 1
Afghanistan is an Islamic Republic, independent, unitary and indivisible state.
Article Two Ch. 1, Art. 2
The religion of the state of the Islamic Republic of Afghanistan is the sacred religion of
Islam.
Followers of other religions are free to exercise their faith and perform their religious
rites within the limits of the provisions of law.
Article Three Ch. 1, Art. 3
In Afghanistan, no law can be contrary to the beliefs and provisions of the sacred religion
of Islam.
Article Four Ch. 1, Art. 4
National sovereignty in Afghanistan belongs to the nation that exercises it directly or
through its representatives.
The nation of Afghanistan consists of all individuals who are the citizens of
Afghanistan.
The nation of Afghanistan is comprised of the following ethnic groups: Pashtun,
Tajik, Hazara, Uzbak, Turkman, Baluch, Pashai, Nuristani, Aymaq, Arab, Qirghiz,
Qizilbash, Gujur, Brahwui and others.
The word Afghan applies to every citizen of Afghanistan.
No member of the nation can be deprived of his citizenship of Afghanistan.
Affairs related to the citizenship and asylum are regulated by law.
Article Five Ch. 1, Art. 5
Implementation of the provisions of this constitution and other laws, defending
independence, national sovereignty, territorial integrity, and ensuring the security and
defence capability of the country, are the basic duties of the state.
Article Six Ch. 1, Art. 6
The state is obliged to create a prosperous and progressive society based on social
justice, protection of human dignity, protection of human rights, realisation of
democracy, and to ensure national unity and equality among all ethnic groups and
tribes and to provide for balanced development in all areas of the country.
Article Seven Ch. 1, Art. 7
The state shall abide by the U.N. charter, international treaties, international conventions
that Afghanistan has signed, and the Universal Declaration of Human Rights.
The state prevents all types of terrorist activities, production and consumption of
intoxicants (muskirat), and production and smuggling of narcotics.
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Article Eight Ch. 1, Art. 8
The state regulates the policy of the country on the basis of preserving the independence,
national interests, territorial integrity, non-aggression, good neighbourliness, mutual
respect, and equal rights.
Article Nine Ch. 1, Art. 9
Mines, underground resources are properties of the state.
Protection, use, management, and mode of utilisation of the public properties shall
be regulated by law.
Article Ten Ch. 1, Art. 10
The State encourages and protects private capital investments and enterprises based
on the market economy and guarantees their protection in accordance with the
provisions of law.
Article Eleven Ch. 1, Art. 11
Affairs related to the domestic and external trade shall be regulated by law in accordance
with the needs of the national economy and public interests.
Article Twelve Ch. 1, Art. 12
Da Afghanistan Bank is the central and independent bank of the state.
The issuance of currency, and formulation and implementation of monetary policy
of the country are the mandates of the central bank in accordance with law.
The central bank shall consult with the economic committee of the Wulesi Jirga in
matters related to the printing of money.
The structure and operation of this bank shall be regulated by law.
Article Thirteen Ch. 1, Art. 13
The state shall formulate and implement effective programmes for the development
of industries, growth of production, increase in public living standards, and support to
craftsmanship.
Article Fourteen Ch. 1, Art. 14
The state shall design and implement within its financial resources effective programmes
for development of agriculture and animal husbandry, improving the economic, social
and living conditions of farmers, herders, and settlement and living conditions of
nomads.
The state shall adopt the necessary measures for housing and distribution of public
estates to deserving citizens in accordance within its financial resources and the law.
Article Fifteen Ch.1, Art. 15
The state is obliged to adopt necessary measures for safeguarding forests and the
environment.
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460
Article Sixteen Ch. 1, Art. 16
From among the languages of Pashto, Dari, Uzbeki, Turkmani, Baluchi, Pashai,
Nuristani, Pamiri (alsana), Arab and other languages spoken in the country, Pashto
and Dari are the official languages of the state.
The Turkic languages (Uzbeki and Turkmen), Baluchi, Pashai, Nuristani and Pamiri
(alsana) are in addition to Pashto and Dari the third official languages in areas
where the majority speaks them. The practical modalities for implementation of this
provision shall be specified by law.
The state adopts and implements effective plans for strengthening, and developing,
all languages of Afghanistan.
Publications and radio and television broadcasting are allowed in all languages spoken
in the country.
Article Seventeen Ch. 1, Art. 17
The state shall adopt necessary measures for promotion of education in all levels,
development of religious education, organising and improving the conditions of
mosques, madrasas and religious centres.
Article Eighteen Ch. 1, Art. 18
The calendar of the country shall be based on the flight of the Prophet (PBUH).
The basis of work for state offices is the solar calendar.
Fridays and the 28 Asad and the 8 Sawr are public holidays. Other holidays shall be
regulated by law.
Article Nineteen Ch. 1, Art. 19
The Afghan flag is made up of three equal parts, with black, red and green colours
juxtaposed from left to right perpendicularly. The width of every coloured piece is
equal to half of its length. The national insignia is located in the centre of the flag.
The national insignia of the state of Afghanistan is composed of Mehrab and pulpit in
white colour. Two flags are located on its two sides. In the upper-middle part of the
insignia the sacred phrase of, There is no God but Allah and Mohammad is his prophet,
and Allah is Great is placed, along with a rising sun. The word Afghanistan and the
year 1298 (solar calendar) is located in the lower part of the insignia. The insignia is
encircled with two branches of wheat.
The law shall regulate the use of national flag and emblem.
Article Twenty Ch.1, Art. 20
The National Anthem of Afghanistan shall be in Pashto and mention Allahu Akbar
and the names of the ethnic groups of Afghanistan.
Article Twenty-One Ch. 1, Art. 21
The capital of Afghanistan is the city of Kabul.
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CHAPTER TWO
FUNDAMENTAL RIGHTS AND DUTIES OF CITIZENS
Article Twenty-Two Ch. 2, Art. 1
Any kind of discrimination and privilege between the citizens of Afghanistan are
prohibited.
The citizens of Afghanistan whether man or woman have equal rights and duties
before the law.
Article Twenty-Three Ch. 2, Art. 2
Life is a gift of God and a natural right of human beings. No one shall be deprived of
this right except by the provision of law.
Article Twenty-Four Ch. 2, Art. 3
Liberty is the natural right of human beings. This right has no limits unless affecting
the rights of others or public interests, which are regulated by law.
Liberty and dignity of human beings are inviolable.
The state has the duty to respect and protect the liberty and dignity of human beings.
Article Twenty-Five Ch. 2, Art. 4
Innocence is the original state.
An accused is considered innocent until convicted by a final decision of an authorised
court.
Article Twenty-Six Ch.2, Art. 5
Crime is a personal action.
The prosecution, arrest, and detention of an accused and the execution of penalty
cannot affect another person.
Article Twenty-Seven Ch. 2, Art. 6
No act is considered a crime, unless determined by a law adopted prior to the date the
offence is committed.
No person can be pursued, arrested or detained but in accordance with provisions
of law.
No person can be punished but in accordance with the decision of an authorised
court and in conformity with the law adopted before the date of offence.
Article Twenty-Eight Ch. 2, Art. 7
No citizen of Afghanistan accused of a crime can be extradited to a foreign state unless
according mutual agreement and international conventions that Afghanistan has joined.
No Afghan may be sentenced to deprivation of citizenship or to exile inside the
country or abroad.
Article Twenty-Nine Ch. 2, Art. 8
Torture of human beings is prohibited.
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No person, even with the intention of discovering the truth, can resort to torture or
order the torture of another person who may be under prosecution, arrest, or
imprisoned, or convicted to punishment.
Punishment contrary to human integrity is prohibited.
Article Thirty Ch. 2, Art. 9
Any statement, testimony, or confession obtained from an accused or of another person
by means of compulsion, is invalid.
Confession to a crime is a voluntary confession before an authorised court by an
accused in a sound state of mind.
Article Thirty-One Ch. 2, Art. 10
Every person upon arrest can seek an advocate to defend his rights or to defend his
case for which he is accused under the law.
The accused upon arrest has the right to be informed of the attributed accusation
and to be summoned to the court within the limits determined by law.
In criminal cases, the state shall appoint an advocate for a destitute. The confidentiality
of oral, written or telephonic communications between an advocate and his accused
client are immune from invasion.
The duties and authorities of advocates shall be regulated by law.
Article Thirty-Two Ch. 2, Art. 11
Being in debt does not limit a persons freedom or deprive him of his liberties.
The mode and means of recovering a debt shall be regulated by law.
Article Thirty-Three Ch. 2, Art. 12
The citizens of Afghanistan have the right to elect and be elected.
Law regulates the conditions and means to exercise this right.
Article Thirty-Four Ch. 2, Art. 13
Freedom of expression is inviolable.
Every Afghan has the right to express his thought through speech, writing, or
illustration or other means, by observing the provisions stated in this Constitution.
Every Afghan has the right to print or publish topics without prior submission of the
state authorities in accordance with the law.
Directives relating to printing houses, radio, television, press, and other mass media,
will be regulated by the law.
Article Thirty-Five Ch. 2, Art. 14
The citizens of Afghanistan have the right to form social organisations for the purpose
of securing material or spiritual aims in accordance with the provisions of the law.
The citizens of Afghanistan have the right to form political parties in accordance with
the provisions of the law, provided that:
(1) The programme and charter of the party are not contrary to the principles of
the sacred religion of Islam, and the provisions and values of this constitution.
(2) The organisational structure, and financial sources of the party are made public.
(3) The party does not have military or paramilitary aims and structures.
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(4) Should have no affiliation to a foreign political party or sources.
Formation and functioning of a party based on ethnicity, language, Islamic school of
thought (mazhab-i fiqhi) and religion is not permissible.
A party set up in accordance with the provisions of the law shall not be dissolved
without lawful reasons and the decision of an authorised court.
Article Thirty-Six Ch. 2, Art. 15
The citizens of Afghanistan have the right to unarmed demonstrations, for legitimate
peaceful purposes.
Article Thirty-Seven Ch. 2, Art. 16
Confidentiality and freedom of correspondence and communication whether in the
form of letters or through telephone, telegraph and other means, are immune from
invasion.
The state does not have the right to inspect personal correspondence and
communication unless authorised by the provisions of law.
Article Thirty-Eight Ch. 2, Art. 17
A persons residence is immune from invasion.
Other than the situations and methods indicated in the law, no one, including the
state, is allowed to enter or inspect a private residence without prior permission of the
resident or if in possession of a court order.
In case of an evident crime, an official in charge of the situation can enter or conduct
a house search prior to the permission of the court.
The official involved in the situation is required to obtain a subsequent court order
for the house search within the period indicated by law.
Article Thirty-Nine Ch. 2, Article 18
Every Afghan has the right to travel or settle in any part of the country except in the
regions forbidden by law.
Every Afghan has the right to travel abroad and return home in accordance with the
provisions of law.
The state shall protect the rights of the citizens of Afghanistan abroad.
Article Forty Ch. 2, Art. 19
Property is immune from invasion.
No person shall be forbidden from acquiring and making use of a property except
within the limits of law.
No ones property shall be confiscated without the provisions of law and the order of
an authorised court.
Acquisition of a persons property, in return for a prior and just compensation within
the bounds of law, is permitted only for securing public interests in accordance with
the provisions of law.
Inspection and disclosure of a private property are carried out only in accordance
with the provisions of law.
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Article Forty-One Ch. 2, Art. 20
Foreign individuals do not have the right to own immovable property in Afghanistan.
Lease of immovable property for the purpose of investment is permissible in accord
with law.
The sale of estates to diplomatic missions of foreign countries and to those
international agencies, of which Afghanistan is a member, is permissible in accordance
Article Forty-Two Ch. 2, Art. 21
Every Afghan is obligated to pay taxes and duties to the government in accordance
No taxes and duties are enforced without provisions of law.
The rate of taxes and duties and the method of payment are determined by law on
the basis of observing social justice.
This provision is also applied to foreign individuals and agencies.
Every kind of tax, duties, and incomes collected, shall be delivered to the State
account.
Article Forty-Three Ch. 2, Art. 22
Education is the right of all citizens of Afghanistan, which shall be provided up to the
level of the B.A. (lisns), free of charge by the state.
The state is obliged to devise and implement effective programmes for a balanced
expansion of education all over Afghanistan, and to provide compulsory intermediate
level education.
The state is also required to provide the opportunity to teach native languages in the
areas where they are spoken.
Article Forty-Four Ch. 2, Art. 23
The state shall devise and implement effective programmes for balancing and promoting
the education for women, improving the education of nomads and the elimination of
illiteracy in the country.
Article Forty-Five
The state shall devise and implement a unified educational curriculum based on the
provisions of the sacred religion of Islam, national culture and, in accordance with
academic principles, develop the curriculum of religious subjects on the basis of the
Islamic sects existing in Afghanistan.
Article Forty-Six Ch.2, Art. 24
The establishment and operation of higher, general and vocational education are the
duties of the state.
The citizens of Afghanistan can also establish higher, general, and vocational private
educational institutions and literacy courses with the permission of the state.
The state can also permit foreign persons to set up higher, general and vocational
educational private institutes in accordance with the law.
The conditions for admission to state higher education institutions and other related
matters are to be regulated by the law.
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Article Forty-Seven Ch. 2, Art. 25
The state shall devise effective programmes for the promotion of science, culture,
literature and the arts.
The state guarantees the rights of authors, inventors, and discoverers, and encourages
and supports scientific research in all areas, and publicises the effective use of their
results in accordance with the law.
Article Forty-Eight Ch. 2, Art. 26
Work is the right of every Afghan.
Working hours, paid holidays, the rights of employment and employee, and other
related affairs are regulated by law.
Choice of occupation and craft is free within the limits of law.
Article Forty-Nine Ch. 2, Art. 27
Forced labour is forbidden.
Active participation, in times of war, calamity, and other situations which threaten
lives and public welfare, is one of the primary duties of every Afghan.
Children shall not be subjected to forced labour.
Article Fifty Ch. 2, Art. 28
The state is obliged to adopt necessary measures for the creation of a strong and sound
administration and the realisation of reforms in the administration system of the country
after authorisation by the National Assembly.
Government offices are bound to carry out their work with full neutrality and in
compliance with the provisions of law.
The citizens of Afghanistan have the right of access to information from government
offices in accordance with the provisions of law.
This right has no limits, unless it is in violation of the rights of the others.
The citizens of Afghanistan are employed for state service on the basis of qualification
without any kind of discrimination and in accordance with the law.
Article Fifty-One Ch. 2, Art. 29
Any person suffering undue harm by government action is entitled to compensation,
which he can claim by appealing to the courts.
With the exception of situations stated in the law, the state cannot claim its right
without the order of an authorised court.
Article Fifty-Two Ch. 2, Art. 30
The state is obliged to provide free means of preventive health care and medical
treatment, and proper health facilities to all citizens of Afghanistan in accordance with
the law.
The state encourages and protects the establishment and expansion of private medical
services and health centres in accordance with law.
The state in order to promote physical education and improve national and local
sports, should adopt necessary measures.
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Article Fifty-Three Ch. 2, Art. 31
The state should take necessary measures for regulating medical services and financial
support to descendants of those who were martyred or are missing, to the disabled or
handicapped, and their active participation and reintegration into society in accordance
with the law.
The state guarantees the rights and privileges of pensioners, the disabled and
handicapped individuals and also to render the necessary assistance to needy elders,
women without caretakers, and needy orphans in accordance with the law.
Article Fifty-Four Ch.2, Art. 32
The family is a fundamental unit of society and is supported by the state.
The state adopts necessary measures to ensure the physical and psychological well-
being of the family, especially of the child and mother, the upbringing of children and
the elimination of traditions contrary to the principles of the sacred religion of Islam.
Article Fifty-Five Ch. 2, Art. 33
The defence of the country is the responsibility of all citizens of Afghanistan.
The conditions for military services are regulated by law.
Article Fifty-Six Ch. 2, Art. 34
Observing the provisions of the constitution, obeying the laws, adhering to public law
and order, are the duties of all people of Afghanistan.
Ignorance about the provisions of the law is not considered an excuse.
Article Fifty-Seven Ch. 2, Art. 35
The state guarantees the rights and liberties of foreign citizens residing in Afghanistan
in accordance with the law.
These people are obliged to observe the laws of the state of Afghanistan in accordance
with international law.
Article Fifty-Eight Ch. 2, Art. 36
The State, for the purpose of monitoring the observation of human rights in
Afghanistan, to promote their advancement (behbud) and protection, shall establish
the Independent Human Rights Commission of Afghanistan.
Any person whose fundamental rights have been violated can file complaint to the
Commission.
The Commission can refer cases of violation of human rights to the legal authorities,
and assist in defending the rights of the complainant.
The structure, and functions of this Commission shall be regulated by law.
Article Fifty-Nine Ch. 2, Art. 37
No one may misuse the rights and freedoms under this constitution against
independence, territorial integrity, sovereignty and national unity.
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CHAPTER THREE
THE PRESIDENT
Article Sixty Ch. 3, Art. 1
The President is the head of state of the Islamic Republic of Afghanistan, and conducts
his authority in executive, legislative, and judiciary branches in accordance with the
provisions of this constitution.
The President shall have two Vice-Presidents, one first and one second.
The candidate to the Presidency on his or her candidacy shall declare the name of
the Vice-Presidents to the nation.
The Vice-President in the absence, resignation, and or death of the President, acts
in accordance with the provisions of this constitution.
Article Sixty-One Ch. 3, Art. 2
The President is elected by receiving more than 50 per cent of the votes cast through
free, general, secret, and direct voting.
The presidential term is expired at the first of Jawza of the fifth year after the elections.
Elections for the new President are held within 30 to 60 days before the end of the
presidential term.
If none of the candidates succeeds in receiving more than 50 per cent of the votes in
the first round, a run-off election shall be held within two weeks.
In this round, only two candidates with the highest number of votes may participate.
In the run-off, the candidate who gets the majority of the votes shall be elected as
President.
In case of death of one of the candidates during the first or second round, after the
elections or prior to the announcement of the results of elections, new elections shall
be held in accordance with the provisions of law.
The elections for the post of president shall be held under the supervision of the
Independent Commission supervising of the Elections.
This Commission shall be established to supervise all elections and referenda in the
country, in accordance with the provisions of law.
Article Sixty-Two Ch. 3, Art. 3
Presidential candidates should possess the following qualifications:
(1) They should be citizen of Afghanistan, Muslim and born of Afghan parents, and
should not have citizenship of another country.
(2) On the day of becoming a candidate, their age should not be less than 40 years.
(3) They should not have been convicted of crimes against humanity, criminal acts,
or deprivation of civil rights by a court.
No one may be elected as president for more than two terms.
The provision of this article is applied to the Vice-Presidents as well.
Article Sixty-Three Ch. 3, Art. 4
The President-elect, prior to resumption of his/her duties, recites the following oath
of allegiance in the presence of members of the National Assembly and the chief justice:
In the name Allah, the Merciful, the Compassionate:
In the name God Almighty, in the presence of you representatives of the nation of
Afghanistan, I swear to obey and safeguard the provisions of the sacred religion of Islam, to
observe the Constitution and other laws of Afghanistan and supervise their implementation;
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to safeguard the independence, national sovereignty, and the territorial integrity of
Afghanistan and the fundamental rights and interests of the people of Afghanistan, and
with the assistance of God and the support of the nation, to make great and sincere efforts
for the happiness and progress of the people of Afghanistan.
Article Sixty-Four Ch. 3, Art. 5
The power and duties of the President are as follows:
(1) Supervising the implementation of the constitution.
(2) Determining the fundamental policies of the state with the approval of the
National Assembly.
(3) Being the Commander-in-Chief of the Armed Forces of Afghanistan.
(4) Declaration of war and cease-fire with the approval of the National Assembly.
(5) Taking the required decisions during defence of territorial integrity and
protection of independence.
(6) Sending contingents of the Armed Forces to foreign countries with the approval
of the National Assembly.
(7) Convening Loya Jirga except in a situation stated in Article Sixty-Eight of this
constitution.
(8) Declaring a state of emergency and ending it with the approval of the National
Assembly.
(9) Inaugurating the National Assembly and the Loya Jirga.
(10) Accepting the resignation of the Vice-President.
(11) Appointment of Ministers, the Attorney-General, the Director of the Central
Bank, Head of the National Security Directorate and the President of the Afghan
Red Crescent Society with the approval of the Wolesi Jirga, and acceptance of
their dismissal and resignation.
(12) Appointing the head and members of the Supreme Court with the approval of
the Wolesi Jirga.
(13) Appointment, retirement and acceptance of resignation and dismissal of judges,
officers of the Armed Forces, police, national security, and high-ranking officials
in accordance with the law.
(14) Appointment of heads of diplomatic missions of Afghanistan in foreign
countries and international organisations.
(15) Accepting the credentials of diplomatic missions in Afghanistan.
(16) Signing of laws and legislative decrees.
(17) Issuing of credential letters for the conclusion of bilateral and international
treaties in accordance with the provisions of law.
(18) Reducing and pardoning penalties in accordance with law.
(19) Issuing medals and honorary titles in accordance with the provision of law.
(20) The establishment of commissions for the improvement of the administrative
condition of the country, in accordance with law.
(21) Exercising other authorities in accordance with the provisions of this
constitution.
Article Sixty-Five Ch. 3, Art. 6
The President can call for a referendum on important national, political, social or
economic issues.
The call for a referendum shall not be contrary to the provisions of this constitution
or for the amendment of it.
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Article Sixty-Six Ch. 3, Art. 7
The President takes into consideration the supreme interests of the people of
Afghanistan while enforcing the powers stated in this constitution.
The President cannot sell or bestow state properties without the provisions of the
law.
The President cannot act based purely on linguistic, ethnic, religious, political, and
regional considerations during his term in office.
Article Sixty-Seven Ch. 3, Art. 8
In case of resignation, impeachment or death of the President, or of a serious illness
that could hinder the performance of duties, the First Vice-President undertakes his
duties and authorities.
The President must declare his resignation personally to the National Assembly.
Any serious illness must be attested to by an authorised medical committee appointed
by the Supreme Court.
In such case, election for the new President shall be held within the period of three
months in accordance with the Article 61 of this constitution.
During the time when the First Vice-President fills in as the interim President, he
cannot perform the following:
(1) Amendment of the constitution.
(2) Dismissal of ministers.
(3) Call for a referendum.
During this period the Vice-Presidents may nominate themselves as candidates for the
post of President in accordance with the provisions of this constitution.
In the absence of the President, the duties of the First Vice-President shall be
determined by the President.
Article Sixty-Eight Ch. 3, Art. 10
In case of resignation and/or death of one of the Vice-Presidents, another person shall
replace him by the proposal of the President and approval of the Wolesi Jirga.
In case of simultaneously death of the President and First Vice-President, his duties
shall be implemented in turn by the Second Vice-President, by the Chair of the Meshrano
Jirga and in the absence of the Chair of the Meshrano Jirga, Chair of the Wolesi Jirga,
and in the absence of the Chair of the Wolesi Jirga, the Foreign Minister shall take the
duties of the President in accordance with Article 67 of this Constitution.
Article Sixty-Nine Ch. 3, Art. 11
The President is responsible to the nation and the Wolesi Jirga in accordance with this
article.
Accusations of crime against humanity, national treason or crime can be levelled
against the President by one-third of the members of the Wolesi Jirga.
If two-thirds of the Wolesi Jirga votes for charges to be brought forth, the Wolesi
Jirga shall convene a Loya Jirga within one month.
If the Loya Jirga approves the accusation by a two-thirds majority of votes the President
is then dismissed, and the case is referred to a special court.
The special court is composed of three members of the Wolesi Jirga, and three
members of the Supreme Court appointed by the Loya Jirga and the Chair of the
Meshrano Jirga.
The lawsuit is conducted by a person appointed by the Loya Jirga.
In this situation, the provisions of Article 67 of this constitution apply.
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Article Seventy Ch. 3, Art. 12
The salary and expenditure of the President are regulated by law.
After expiration of his term, the President is entitled to the financial benefits of the
presidency for the rest of his life in accordance with the law except in the case of dismissal.
CHAPTER FOUR
THE GOVERNMENT
Article Seventy-One Ch. 4, Art. 1
The government consists of the ministers who work under the chairmanship of the
President.
Ministers are appointed by the President and shall be introduced for approval to the
National Assembly.
Article Seventy-Two Ch. 4, Art. 2
A person who is appointed as the Minister, should have the following qualifications:
(1) He/she must hold only Afghan citizenship. Should a nominee for a ministerial
post also hold the citizenship of another country, the Wulesi Jirga shall have the
right to confirm or reject his or her nomination.
(2) He/she should have higher education, work experience and good reputation.
(3) His/her age should not be less than 35.
(4) He/she should not have been convicted of crimes against humanity, criminal
acts, or have been deprived of civil rights by a court.
Article Seventy-Three Ch. 4, Art. 3
The Ministers can be appointed from within and without the National Assembly.
If a member of the National Assembly is appointed as a Minister, he loses his
membership of the National Assembly, and is replaced by another person in accordance
Article Seventy-Four Ch. 4, Art. 4
Prior to taking office, the Minister performs the following oath in the presence of the
President:
In the name of Allah, the Merciful and Compassionate:
I swear in the name of God Almighty to support the provisions of the sacred religion of Islam,
follow the Constitution and other laws of Afghanistan, protect the rights of citizens, and
safeguard the independence, territorial integrity and national unity of Afghanistan, and
consider God Almighty present in performing all my responsibilities, and honestly perform
the duties assigned to me.
Article Seventy-Five Ch. 4, Art. 5
The government has the following duties.
(1) To execute the provision of this constitution, other laws and final orders of the
courts.
(2) To protect the independence, defend the territorial integrity and safeguard the
interests and dignity of Afghanistan in the international community.
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(3) To maintain public law and order and eliminate administrative corruption.
(4) To prepare the budget, regulate financial affairs, and protect public wealth.
(5) To devise and implement programmes for social, cultural, economic and
technological progress.
(6) To report to the National Assembly at the end of the fiscal year about the tasks
accomplished and about the main plans for the new fiscal year.
(7) To perform other duties as recognised by this constitution and other laws to be
duties of the government.
Article Seventy-Six Ch. 4, Art.6
In order to implement the main policies of the country, and regulation of its duties,
the government shall devise and approve regulations.
These regulations should not be contradictory to the text and spirit of any law.
Article Seventy-Seven Ch. 4, Art. 7
As heads of administrative units and members of the government, the Ministers perform
their duties within the limits determined by this constitution and other laws.
The Ministers are responsible to the President and the Wolesi Jirga for their particular
duties.
Article Seventy-Eight Ch. 4, Art. 8
If a Minister is accused of crimes against humanity, national treason or a criminal act,
the case shall be referred to a special court in accordance with Article 134 of this
Constitution.
Article Seventy-Nine Ch. 4, Art. 9
In cases of recess of the Wolesi Jirga, the government can adopt legislation in an
emergency situation on matters other than those related to budget and financial affairs.
The legislative decrees become laws after they are signed by the President.
The legislative decrees should be submitted to the National Assembly in the course
of 30 days beginning from the first session of the National Assembly.
In case of rejection by the National Assembly, the legislation becomes void.
Article Eighty Ch. 4, Art. 10
The Minister during the course of their work cannot use their posts for linguistic,
regional, ethnic, religious and partisan purposes.
CHAPTER FIVE
THE NATIONAL ASSEMBLY
Article Eighty-One Ch. 5, Art. 1
The National Assembly of the Islamic Republic of Afghanistan as the highest legislative
organ is the manifestation of the will of its people and represents the whole nation.
Every member of the National Assembly takes into judgment the general welfare
and supreme interests of all people of Afghanistan at the time of casting their vote.
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Article Eighty-Two Ch. 5, Art. 2
The National Assembly consists of two houses: Wolesi Jirga (House of People) and
Meshrano Jirga. (House of Elders).
No one can become a member of both houses simultaneously.
Article Eighty-Three Ch. 5, Art. 3
Members of the Wolesi Jirga are elected by the people through free, general, secret,
and direct elections.
Their mandate ends on the 1
st
of Saratan of the fifth year after the elections, and the
new assembly starts its work.
The election of the members of the Wolesi Jirga shall be held within 30 to 60 days
before the expiry of the term of the Wolesi Jirga.
The number of members of the Wolesi Jirga, proportionate to the population of
each region, shall be not more than 250.
Electoral constituency and other related issues shall be determined by election laws.
In the election law, measures should be adopted so that the election system shall
provide general and just representation for all the people of the country, and at least
two female delegates should be elected from each province.
Article Eighty-Four Ch. 5, Art. 4
Members of the Meshrano Jirga are elected and appointed as follows:
(1) From among the members of each provincial council, the respective council
elects one person for a period of four years.
(2) From among the district councils of each province, the respective councils elect
one person for a period of three years.
(3) The President from among experts and experienced personalities including
two representatives from the disabled and impaired and two representatives from
the Kochis appoints the remaining one-third of the members for a period of
five years.
Fifty per cent of those appointed by the President must be women.
A person who is appointed as a member of the Meshrano Jirga shall relinquish his
membership in the respective council, and another person must replace him in
accordance with the law.
Article Eighty-Five Ch. 5, Art. 5
A person who is nominated or appointed as a member of the National Assembly should
have the following qualifications in addition to those considered by voters:
(1) Should be a citizen of Afghanistan, or has obtained citizenship of the state of
Afghanistan for at least ten years before becoming a candidate.
(2) Should not have been convicted by a court for committing a crime against
humanity, a crime, or sentenced or deprivation of his civil rights.
(3) Members of Wolesi Jirga should be 25 years old at the date of candidacy, and
members of the Meshrano Jirga should be 35 years old at the date of candidacy
or appointment.
Article Eighty-Six Ch. 5, Art. 6
The credentials of members of the National Assembly are reviewed by the Independent
Electoral Commission in accordance with law.
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Article Eighty-Seven Ch. 5, Art.7
In the beginning of the legislative period, each one of the two houses elects one of its
members as the Chairperson, and two people as the first and second Vice Chairperson,
and two people as the secretary and assistant secretary for a period of one year.
These individuals constitute the administrative board in their respective houses.
The duties of the administrative boards are determined in the regulations pertaining
to the internal duties of each house.
Article Eighty-Eight Ch. 5, Art. 8
Each house of the National Assembly sets up commissions to study the topics under
discussion in accordance with its internal regulations.
Article Eighty-Nine Ch. 5, Art. 9
The Wolesi Jirga has the authority to set up a special commission if one-third of its
members put forward a proposal to inquire about and study government actions.
The composition and procedure of this commission shall be specified by the internal
regulations of the Wolesi Jirga.
Article Ninety Ch. 5, Art. 10
The National Assembly has the following powers:
(1) Ratification, modification, or abrogation of laws and or legislative decrees.
(2) Approval of plans for economic, social, cultural and technological development.
(3) Approval of state budget, permission for obtaining and granting of loans.
(4) Creation or modification of administrative units.
(5) Ratification of international treaties and agreements, or the abrogation of the
membership of Afghanistan to them.
(6) Other authorities specified in this constitution.
Article Ninety-One Ch. 5, Art. 11
Wolesi Jirga has the following special powers:
(1) Deciding on interrogation of each of the ministers in accordance with the
provisions of Article 92 of this constitution.
(2) Taking the final decision about the states development programmes and state
budget, in case of a disagreement between the Wolesi Jirga and the Meshrano
Jirga.
(3) Approval of the appointments according to the provisions of this constitution.
Article Ninety-Two Ch. 5, Art. 12
Wolesi Jirga, based on a proposal by one-tenth of all members, can interrogate each of
the Ministers.
If the responses given are not satisfactory, Wolesi Jirga shall consider the issue of a
vote of no confidence.
A vote of no confidence in a Minister should be explicit, direct and based on well-
founded reasons.
This vote must be approved by a majority of all members of the Wolesi Jirga.
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Article Ninety-Three Ch. 5, Art. 13
Any commission of both Houses of the National Assembly can question each of the
Ministers about specific topics.
The person questioned may provide verbal or written responses.
Article Ninety-Four Ch. 5, Art. 14
Law is what both Houses of the National Assembly approve and the President endorses
unless this constitution states otherwise.
In case the President does not agree to what the National Assembly approves, he or
she can send the document back with justifiable reasons to the Wolesi Jirga within 15
days of its submission.
With the passage of this period or in case the Wolesi Jirga approves a particular case
again with a majority of a two-thirds vote, the bill is considered endorsed and enforced.
Article Ninety-Five Ch. 5, Art. 15
A proposal for the promulgation of a law can be initiated by the government, or members
of the National Assembly, and in the domain of the regulation of judicial affairs through
the Supreme Court by the government.
Article Ninety-Six Ch. 5, Art. 16
Proposals for budget and financial affairs are initiated only by the government.
Article Ninety-Seven Ch. 5, Art. 17
Proposals for promulgations of law initiated by the government are submitted first to
the Wolesi Jirga.
If a proposal for the promulgation of law includes imposition of new taxes or
reduction in state income, it is included in the working agenda on condition that an
alternative source is also envisioned.
The Wolesi Jirga approves or rejects the proposal of the promulgation of law including
budget and financial affairs and the proposal of taking or giving loans after discussion
as a whole.
The Wolesi Jirga may not delay the proposal for more than one month.
The proposed draft law is submitted to the Meshrano Jirga, after its approval by the
Wolesi Jirga.
The Meshrano Jirga decides on the draft within a period of 15 days.
The National Assembly shall give priority to the promulgation of laws, treaties and
development plans of the government that require urgent consideration and decision
as per the request of the government.
If a proposal for promulgation of a law is initiated by ten members of one of the two
Houses and then approved by one-fifth members of the respective houses, it can be
admitted to the agenda of the respective houses.
Article Ninety-Eight Ch. 5, Art. 18
The state budget and development plan of the government is submitted through the
Meshrano Jirga along with an advisory comments to the Wolesi Jirga.
The decision of the Wolesi Jirga, irrespective of the consent of the Meshrano Jirga, is
enforceable after it is signed by the President.
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If for some reason the budget is not approved before the beginning of the new fiscal
year, the budget of the previous year is applied until the new budget is approved.
The government is obliged to give to the Wolesi Jirga the budget of the new fiscal
year and a brief account of the current years budget within the forth quarter of the
fiscal year.
The definite account of the previous fiscal year shall be submitted by the government
to the Wolesi Jirga within six months of the new year, in accordance with the provisions
of the law.
The Wolesi Jirga cannot delay the approval of the budget for more than one month
or give permission to give or take a loan for more than 15 days.
If during this period the Wolesi Jirga does not take any decision with regards to
taking or giving a loan, the proposal will be considered as approved.
Article Ninety-Nine Ch. 5, Art. 19
If, during a session of the National Assembly, the annual budget or a developmental
plan or an issue relating to public security, territorial integrity, and the countrys
independence is under discussion, the session of the assembly cannot end before the
approval of the matter.
Article One Hundred Ch. 5, Art. 20
In case the decision of one house is rejected by another house, a combined committee
composed of equal members of each house is formed to resolve the disagreement.
The decision of the committee is enforced following approval by the President.
If the combined committee cannot solve the disagreement, the defeated resolution
is considered void. And, if the resolution is not approved by the Wolesi Jirga, it may be
approved in the next session of the Wolesi Jirga by the majority of its members.
This approval is assumed as enforceable, after it is signed by the President, without
submission to the Meshrano Jirga.
In case the disagreement between the two houses is over legislation involving financial
affairs, and the combined committee is not able to resolve it, the Wolesi Jirga may
approve the draft by the majority vote of its members.
This draft is assumed as enforceable without submission to the Meshrano Jirga after
it is signed by the President.
Article One Hundred and One Ch. 5, Art. 21
No member of the National Assembly may be legally prosecuted for expressing his
views while performing his duty.
Article One Hundred and Two Ch. 5, Art. 22
When a member of the National Assembly is accused of a crime, the law enforcement
authority informs the house of which the accused is member, about the case, and the
accused member may be prosecuted.
In the case of an evident crime, the law enforcement authority can legally pursue
and arrest the accused without the permission of the house of which the accused is a
member.
In both cases, when legal prosecution requires detention of the accused, law
enforcement authorities are obliged to inform the respective house about the case
immediately.
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If the accusation takes place when the assembly is in recess, permission to make the
arrest is obtained from the administrative board of the respective house and the decision
of this board is presented to the first session of the above-mentioned house for a decision.
Article One Hundred and Three Ch. 5, Art. 23
Ministers may participate in the sessions of each one of the two houses of the National
Assembly.
Each house of the National Assembly may demand the participation of Ministers to
take part in its session.
Article One Hundred and Four Ch. 5, Art. 24
Both houses of the National Assembly hold their sessions separately at the same time.
Under the following circumstances, both houses may hold joint sessions:
(1) When the legislative session, or the annual session, is inaugurated by the President.
(2) When it is deemed necessary by the President.
In this case the head of the Wolesi Jirga chairs the joint session of the National Assembly.
Article One Hundred and Five Ch. 5, Art. 25
The sessions of the National Assembly are open unless the Chairman of the Assembly,
or at least ten members of the National Assembly, request that the session be held
behind closed doors and the assembly accepts this request.
No one shall enter the building of the National Assembly by force.
Article One Hundred and Six Ch. 5, Art. 26
The quorum for the sessions of each house of the National Assembly is a majority of its
members, and its decisions are taken by a majority of the members present, unless this
constitution states otherwise.
Article One Hundred and Seven Ch. 5, Art. 27
The National Assembly convenes two ordinary sessions each year.
The term of the National Assembly in each year is nine months.
When necessary, the assembly may extend this period.
Extraordinary sessions of the assembly during recess can take place by the order of
the President.
Article One Hundred and Eight Ch. 5, Art. 28
In case of death, resignation or dismissal of a member of the Wolesi Jirga, and/or
disability or handicap, which prevents performance of duties permanently, election in
the related constituency is held for a new representative for the rest of the legislative
period, in accordance with the law.
In the above-mentioned situations, a new member of the Meshrano Jirga shall be
appointed in accordance with Article 87 of this constitution.
Matters involving the presence or absence of members of the National Assembly are
regulated according to internal rules.
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Article One Hundred and Nine Ch. 5, Art. 29
Proposals for amendments of the electoral law cannot be included in the working agenda
of the assembly during the final year of the legislative period.
CHAPTER SIX
LOYA JIRGA
Article One Hundred and Ten Ch. 6, Art. 1
Loya Jirga is the highest manifestation of the people of Afghanistan.
Loya Jirga consists of the following:
(1) Members of the National Assembly.
(2) Chairpersons of the provincial and district councils.
The Ministers, Chief Justice and members of the Supreme Court may participate in the
sessions of the Loya Jirga without the right to vote.
Article One Hundred and Eleven Ch. 6, Art. 2
The Loya Jirga is convened in the following situations:
(1) To take decisions on issues relating to independence, national sovereignty,
territorial integrity and the supreme interests of the country.
(2) To amend the provisions of this constitution.
(3) To prosecute the President in accordance with the provisions of Article 69 of
this constitution.
Article One Hundred and Twelve Ch. 6, Art. 3
The Loya Jirga in its first session elects from among its members a chairperson, a deputy-
chair, and a secretary and an assistant secretary.
Article One Hundred and Thirteen Ch. 6, Art. 4
The quorum of the Loya Jirga for voting is completed by the majority of members.
The decisions of the Loya Jirga are taken by a majority of the present members
except in cases as explicitly stated in this constitution.
Article One Hundred and Fourteen Ch. 6, Art. 56
Discussions of the Loya Jirga are open except when one-fourth of its members demand
their secrecy, and the Loya Jirga accepts this demand.
Article One Hundred and Fifteen Ch. 6, Art. 7
During the session of a Loya Jirga, the provision of Articles 101 and 102 of this
constitution are applied on its members.
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CHAPTER SEVEN
THE JUDICIARY
Article One Hundred and Sixteen Ch. 7, Art. 1
The judicial branch is an independent organ of the state of the Islamic Republic of
Afghanistan.
The judicial branch consists of the Supreme Court (Stera Mahkama), High Courts,
and Appeal Courts.
The Supreme Court, as the highest judicial organ, heads the judicial body of the
Islamic Republic of Afghanistan.
Article One Hundred and Seventeen Ch. 7, Art. 2
The Supreme Court is composed of nine members who are appointed by the President
for a period of ten years with the approval of the Wolesi Jirga with observance of the
provisions of last paragraph of the Article 50 and Article 118 of this constitution. In the
beginning the appointment will be as follows:
three members are appointed for a period of four years;
three members for seven years; and
three members for ten years.
Later appointments will be for a period of ten years.
The appointment of the members for a second term is not permissible.
The President appoints one of its members as the Head of the Supreme Court.
Members may in no circumstances be dismissed from their service until the end of
their term, except as stated in Article 127 of this constitution.
Article One Hundred and Eighteen Ch. 7, Art. 3
A member of the Supreme Court shall have the following qualifications:
(1) The age of the Head of the Supreme Court and its members should not be lower
than 40 at the time of appointment.
(2) He shall shall be a citizen of Afghanistan.
(3) He shall have a higher education in law or in Islamic jurisprudence, and shall
have sufficient expertise and experience in the judicial system of Afghanistan.
(4) He shall have high ethical standards and a reputation of good deeds.
(5) He shall not have been convicted of crimes against humanity, crimes, and
sentenced of deprivation of his civil rights by a court.
(6) He shall not be a member of any political party during the term of official duty.
Article One Hundred and Nineteen Ch. 7, Art. 4
Members of the Supreme Court take the following oath in the presence of the President
before taking up the post:
In the name Allah, the Merciful and the Compassionate:
I swear in the name of God Almighty to support justice and righteousness in
accordance with the provisions of the sacred religion of Islam and the provisions of
this Constitution and other laws of Afghanistan, and to execute the duty of being a
judge with utmost honesty, righteousness and nonpartisanship.
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479
Article One Hundred and Twenty Ch. 7, Art. 5
The authority of the judicial organ is to attend to all lawsuits in which real individuals
or incorporeal including the state stand before it as plaintiff or defendant and in its
presence is expressed in accord with provisions of the law.
Article One Hundred and Twenty-One Ch. 7, Art. 6
The Supreme Court upon request of the government or the Courts can review
compliance with the constitution of laws, legislative decrees, international treaties, and
international conventions, and interpret them, in accordance with the law.
Article One Hundred and Twenty-Two Ch. 7, Art. 7
No law, under any circumstances, may transfer a case from the jurisdiction of the judicial
branch to another organ as has been determined in this constitution.
This provision does not apply to establishing special Courts as stated in Articles 69,
78 and 127 of this constitution and military courts in matters relating to them.
The structure and authority of these courts are regulated by law.
Article One Hundred and Twenty-Three Ch. 7, Art. 8
With observance of the provisions of this constitution, the rules relating to the structure,
authority, and performances of the courts and the duties of judges are regulated by law.
Article One Hundred and Twenty-Four Ch. 7, Art. 9
Other officials and administrative personnel of the judicial branch are subject to the
provisions of the laws relating to officials and other administrative personnel of the
state, but their appointment, dismissal, promotion, pension, rewards and punishments
are regulated by the Supreme Court in accordance with the law.
Article One Hundred and Twenty-Five Ch. 7, Art. 10
The budget of the judicial branch is arranged in consultation with the government by
the Supreme Court and presented to the National Assembly by the government as part
of the state budget.
Implementation of the budget of the judicial branch is by the authority of the
Supreme Court.
Article One Hundred and Twenty-Six Ch. 7. Art. 11
Members of the Supreme Court enjoy official financial benefits for the rest of their
lives provided they do not occupy state or political positions.
Article One Hundred and Twenty-Seven Ch. 7, Art. 12
When more than one-third of the members of the Wolesi Jirga demand the trial of the
Chief Justice, or a member of the Supreme Court, due to a crime committed during
the performance of duty, and the Wolesi Jirga approves of this demand by a majority of
two-thirds of the votes, the accused is dismissed from his post and the case is referred to
a special court.
The setting up of the court and the procedures of trial are regulated by law.
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Article One Hundred and Twenty-Eight Ch. 7, Art. 13
In the courts of Afghanistan, trials are open and everyone is entitled to attend trials
within the bounds of law.
The court, in situations which are stated in the law or in situations in which the
secrecy of the trial is deemed necessary, may conduct the trial behind closed doors, but
the announcement of the court decision should be open in all instances.
Article One Hundred and Twenty-Nine Ch. 7, Art. 14
The court is obliged to state the reasons for the decisions it issues.
All specific decisions of the courts are enforceable, except for capital punishment,
which is conditional upon approval of the President.
Article One Hundred and Thirty Ch. 7, Art. 15
While processing their cases, the courts apply the provisions of this constitution and
other laws.
When there is no provision in the constitution or other laws regarding a ruling on
an issue, the courts decisions shall be within the limits of this constitution in accord
with the Hanafi jurisprudence and in such a way as to serve justice in the best possible
manner.
Article One Hundred and Thirty-One Ch. 7, Art. 16
Courts shall apply the Shia school of law in cases dealing with personal matters involving
the followers of the Shia Sect in accordance with the provisions of law.
In other cases, if no clarification by this constitution and other laws exist and both
sides of the case are followers of the Shia Sect, courts will resolve the matter according
to the laws of this Sect.
Article One Hundred and Thirty-Two Ch. 7, Art. 17
Judges are appointed with the recommendation of the Supreme Court and approval of
the President.
The appointment, transfer, promotion, punishment, and proposals to retire judges
are within the authority of the Supreme Court in accordance with the law.
The Supreme Court shall establish the General Administration Office of the Judicial
Power for the purpose of the better arrangement of the administration and judicial
affairs and insuring the required improvements.
Article One Hundred and Thirty-Three Ch. 7, Art. 18
When a judge is accused of having committed a crime, the Supreme Court shall inquire
about the case involving the judge in accordance with the law.
After listening to his defence, when the Supreme Court regards the accusation to be
valid, it shall present a proposal about the judges dismissal to the President.
After the Presidential approval, the accused judge is dismissed from duty, and
punished in accordance with the provisions of the law.
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Article One Hundred and Thirty-Four Ch. 7, Art. 19
The detection of crimes is the duty of the police and investigation and prosecution are
conducted by the Attorneys Office in accordance with the provisions of the law.
The Attorneys Office is part the Executive branch, and is independent in its
performance.
The structure, authority, and activities of the Attorneys Office are regulated by law.
Discovery and investigation of crimes related to the armed forces are regulated by a
special law.
Article One Hundred and Thirty-Five Ch. 7, Art. 20
If parties involved in a case do not know the language in which the trial is conducted,
they have the right to understand the material and documents related to the case
through an interpreter and the right to speak in their mother language in the court.
CHAPTER EIGHT
THE ADMINISTRATION
Article One Hundred and Thirty-Six Ch. 8, Art. 1
The Administration of the Islamic Republic of Afghanistan shall be based on central
and local administrative units in accordance with the law.
The central administration is divided into a number of administrative units, each of
which shall be headed by a minister.
The local administrative unit is a province.
The number, area, parts and structure of the provinces and the related administration
are regulated by law on the basis of population, social and economic conditions, and
geographic location.
Article One Hundred and Thirty-Seven Ch. 8, Art. 2
The government, while preserving the principle of centralism, shall in accordance
with the law delegate certain powers to local administration units for the purpose of
expediting and promoting economic, social, and cultural affairs, and increasing the
participation of people in the development of the nation.
Article One Hundred and Thirty-Eight Ch. 8, Art. 3
In every province a provincial council is to be formed.
Members of the provincial council are elected in proportion to the population by
free, direct, secret ballot, and general elections by the residents of the province for a
period of four years in accordance with the law.
The provincial council elects one of its members as Chairman.
Article One Hundred and Thirty-Nine Ch. 8, Art. 4
The provincial council takes part in securing the developmental targets of the state
and improving its affairs in a way stated in the law, and gives advice on important issues
falling within the domain of the province.
Provincial councils perform their duties in cooperation with the provincial
administration.
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Article One Hundred and Forty Ch. 8, Art. 5
In order to organise activities involving people and provide them with the opportunity
actively to participate in the local administration, councils are set up in districts and
villages in accordance with the provisions of the law.
Members of these councils are elected by the local people through free, general,
secret and direct elections for a period of three years.
The participation of nomads in these councils is regulated by law.
Article One Hundred and Forty-One Ch. 8, Art. 6
Municipalities shall be set up in order to administer city affairs.
The mayor and members of the municipal councils are elected by free, general,
secret and direct elections.
Matters relating to municipalities are regulated by law.
Article One Hundred Forty-Two Ch. 8, Art. 7
For the purpose of the implementation of the provisions, and ensuring the values of
this constitution, the state shall establish the required departments.
CHAPTER NINE
THE STATE OF EMERGENCY
Article One Hundred and Forty-Three Ch. 9, Art, 1
If due to war, threat of war, serious rebellion, natural disasters, or situations similar to
those protecting the independence or nations survival becomes impossible by following
the provision of this constitution, the President in confirmation of National Assembly,
shall declare a state of emergency in some or all parts of the country.
If the state of emergency continues for more than two months, the agreement of
the National Assembly is required for its extension.
Article One Hundred and Forty-Four Ch. 9, Art. 2
During the state of emergency, the President, with the consultations of heads of the
National Assembly, and Chief Justice, can transfer certain powers of the National
Assembly to the government.
Article One Hundred and Forty-Five Ch. 9, Art. 3
During the state of emergency, the President with the consent of the heads of the
National Assembly and the Supreme Court, can suspend the validity of the following
Articles or can place restrictions on them:
(1) Paragraph 2 of Article 27.
(2) Article 36.
(3) Paragraph two of Article 37.
(4) Paragraph two of Article 38.
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Article One Hundred and Forty-Six Ch. 9, Art. 4
During the state of emergency, the constitution cannot be amended.
Article One Hundred and Forty-Seven Ch. 9, Art. 5
If the Presidential term of office, and/or the legislative period expire during a state of
emergency, the new elections shall be postponed, and the presidency and the legislative
period shall be extended for up to four months.
If the state of emergency continues for more than four months, a Loya Jirga shall be
called by the President for further decisions.
Following the termination of state of emergency, election would be held within two
months.
Article One Hundred and Forty-Eight Ch. 9, Art. 6
After the end of the state of emergency, the measures adopted on the basis of Articles
144 and 145 of this constitution shall be considered invalid immediately.
CHAPTER TEN
AMENDMENTS
Article One Hundred and Forty-Nine Ch. 10, Art. 1
The provisions of adherence to the fundamentals of the sacred religion of Islam and
the regime of the Islamic Republic cannot be amended.
The amendment of the fundamental rights of the people are permitted only in order
to make them more effective.
Considering new experiences and requirements of the time, other contents of this
constitution can be amended by the proposal of the President or by the majority of the
National Assembly in accordance with the provisions of Articles 67 and 146 of this
constitution.
Article One Hundred and Fifty Ch. 10, Art. 2
In order to implement proposals regarding the amendment of the constitution, a
Commission composed of members of the Government, National Assembly, and the
Supreme Court shall be established by a presidential decree, and the commission shall
prepare a draft of the amendments.
For approval of the amendments, a Loya Jirga shall be convened by the decree of the
President in accordance with the provisions of the Chapter on the Loya Jirga.
When the Loya Jirga approves an amendment by a majority of two-thirds of its
members, it shall be enforced following endorsement by the President.
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CHAPTER ELEVEN
THE MISCELLANEOUS PROVISIONS
Article One Hundred and Fifty-One Ch. 11, Art. 1
The President, Vice-Presidents, Ministers, Head and members of the Supreme Court,
Head of the Central Bank, National Security Directorate, Governors and Mayors may
not engage in any profitable business contracts with the government or individuals
during their term of office.
Contracts for the purpose of fulfilling personal needs are an exception to this
provision.
Article One Hundred and Fifty-Two Ch. 11, Art. 2
The President, Vice-President, ministers, heads and members of the National Assembly,
the Supreme Court, and judges, cannot undertake other jobs during their terms of
office.
Article One Hundred and Fifty-Three Ch. 11, Art. 3
Judges, Attorneys, and Officers of the Armed Forces and Police, and members of the
National Security, cannot be members of political parties during their terms of office.
Article One Hundred and Fifty-Four Ch. 11, Art. 4
Property of the President, Vice-Presidents, ministers, members of the Supreme Court
and the Attorney-General before and after their term of office shall be registered and
monitored by an organ to be established by law.
Article One Hundred and Fifty-Five Ch. 11, Art. 5
For the ministers, members of the National Assembly, the Supreme Court, Attorney-
General and judges, appropriate salaries shall be paid in accordance with the provisions
of law.
Article One Hundred and Fifty-Six Ch. 11, Art. 6
The Independent Electoral Commission will be established to organise and supervise
any election and to hold a referendum within the country based on the provisions of
the law.
Article One Hundred Fifty-Seven Ch. 11, Art. 7
The Independent Commission for the Supervision of the Implementation of the
constitution will be established by law. Members of this Commission will be appointed
by the President.
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CHAPTER TWELVE
THE TRANSITIONAL PROVISIONS
Article One Hundred and Fifty-Eight Ch. 12, Art. 1
The Title of the Father of the Nation and the privileges granted by the Emergency
Loya Jirga of 1381 (2002) to His Majesty Mohammad Zahir Former King of Afghanistan
are preserved for him during his lifetime, in accordance with the provisions of this
constitution.
Article One Hundred and Fifty-Nine Ch. 12, Art. 2
The period following the adoption of this constitution, until the date of inauguration
of the National Assembly, is deemed as a transitional period.
During the transitional period, the Islamic Transitional State of Afghanistan shall
carry out the following tasks:
(1) Issue decrees relating to the election of the President, National Assembly and
local councils within six months.
(2) Issue decrees regarding the structure and powers of the courts and basic
administration structures within one year.
(3) Establish an Independent Electoral Commission.
(4) Implement the reform of the executive and judiciary.
(5) Adopt necessary measures for preparing the ground for enforcement of the
provisions of this constitution.
Article One Hundred and Sixty Ch. 12, Art. 3
The first elected President takes up his or her duties within 30 days after the result of
the election has been proclaimed, in accordance with this constitution.
Every effort shall be made to hold the first presidential election and the parliamentary
election at the same time.
Until the establishment of the National Assembly, the powers of the National Assembly
outlined in this constitution shall be held by the government. The interim Supreme
Court shall be established by Presidential Decree.
Article One Hundred and Sixty-One Ch. 12, Art. 4
The National Assembly shall exercise its powers immediately after its establishment in
accordance with this constitution.
The government and the Supreme Court shall be established within 30 days after
the first session of the Wolesi Jirga has taken place.
The President of the Transitional Islamic State of Afghanistan shall continue his
duties until the elected President has taken up office.
The executive and judicial organs of the State in accordance with the provisions of
paragraph 3 of Article 157 of this constitution shall continue their duties, until the
formation of the government and the Supreme Court.
The decrees enforced from the beginning of the interim period shall be submitted
to the first session of the National Assembly. These decrees are enforceable until
annulment by the National Assembly.
Article One Hundred Sixty-Two Ch. 12, Art. 5
This constitution enters into force upon its approval by the Loya Jirga, and will be
signed and proclaimed by the President of the Transitional Islamic State of Afghanistan.
Upon its enforcement, laws and decrees contrary to the provisions of this constitution
are invalid.
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Pakistan
UK-Pakistan Judicial Protocol on
Children Matters
The President of the Family Division of England and Wales and the Hon. Chief Justice
of Pakistan in consultation with senior members of the family judiciary of the United
Kingdom and the Islamic Republic of Pakistan (Pakistan), having met on 15 to 17
January 2003 in the Royal Courts of Justice in London, reach the following consensus:
Whereas:
(a) Desiring to protect the children of the United Kingdom and Pakistan from the
harmful effects of wrongful removal or retention from one country to the other;
(b) Mindful that the United Kingdom and Pakistan share a common heritage of law
and a commitment to the welfare of children;
(c) Desirous of promoting judicial cooperation, enhanced relations and the free flow
of information between the judiciaries of the United Kingdom and Pakistan; and
(d) Recognizing the importance of negotiation, mediation and conciliation in the
resolution of family disputes;
It is agreed that:
(1) In normal circumstances the welfare of a child is best determined by the courts of
the country of the childs habitual/ordinary residence.
(2) If a child is removed from the United Kingdom to Pakistan, or from Pakistan to
the United Kingdom, without the consent of the parent with a custody/residence
order or a restraint/interdict order from the court of the childs habitual/ordinary
residence, the judge of the court of the country to which the child has been removed
shall not ordinarily exercise jurisdiction over the child, save in so far as it is necessary
for the court to order the return of the child to the country of the childs habitual/
ordinary residence.
(3) If a child is taken from the United Kingdom to Pakistan, or from Pakistan to the
United Kingdom, by a parent with visitation/access/contact rights with the consent
of the parent with a custody/residence order or a restraint/interdict order from
the court of the childs habitual/ordinary residence or in consequence of an order
from that court permitting the visit, and the child is retained in that country after
the end of the visit without the consent or in breach of the court order, the judge
of the court of the country in which the child has been retained shall not ordinarily
exercise jurisdiction over the child, save in so far as it is necessary for the court to
order the return of the child to the country of the childs habitual/ordinary
residence.
487
(4) The above principles shall apply without regard to the nationality, culture or religion
of the parents or either parent and shall apply to children of mixed marriages.
(5) In cases where the habitual/ordinary residence of the child is in dispute the court
to which an application is made should decide the issue of habitual/ordinary
residence before making any decision on the return or the general welfare of the
child, and upon determination of the preliminary issue as to habitual/ordinary
residence should then apply the general principles set out above.
(6) These applications should be lodged by the applicant, listed by the court and
decided expeditiously.
(7) It is recommended that the respective governments of the United Kingdom and
Pakistan give urgent consideration to identifying or establishing an administrative
service to facilitate or oversee the resolution of child abduction cases (not covered
by the 1980 Hague Convention on the Civil Aspects of International Child
Abduction).
(8) It is further recommended that the judiciaries, the legal practitioners and the non-
governmental organisations in the United Kingdom and Pakistan use their best
endeavours to advance the objects of this protocol.
(9) It is agreed that the United Kingdom and Pakistan shall each nominate a judge of
the superior court to work in liaison with each other to advance the objects of this
protocol.
Dame Elizabeth Butler-Sloss, DBE
President of the Family Division of the High Court of England and Wales
The Hon. Mr. Justice Sh. Riaz Ahmad
Chief Justice of the Supreme Court of Pakistan
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488
Yemen
Law No. 35/2003 on
Combating Money Laundering
IN THE NAME OF THE PEOPLE
THE PRESIDENT OF THE REPUBLIC
AFTER PERUSING THE CONSTITUTION OF THE REPUBLIC OF YEMEN
AND AFTER THE CONSENT OF THE HOUSE OF REPRESENTATIVES
WE PROMULGATE THE FOLLOWING LAW
Part One: Title and Definitions
Section (1) This Law shall be called the Law of Combating Money Laundering.
Section (2) For the purposes of the implementation of the provisions of this Law, the
words and expressions mentioned hereinunder shall have the corresponding meanings
unless the context requires otherwise:
The Republic: The Republic of Yemen.
The Governor: The Governor of the Central Bank of Yemen.
The Committee: The Committee for combating money laundering, formed
pursuant to the provisions of this Law.
The Unit: The Unit for the collection of data, at the Central Bank of Yemen.
Money laundering: Every commission involving the gain of property, becoming
in possession thereof, or disposing of, depositing, changing, investing or
transferring thereof: with a view to concealing the true source of the said property
acquired as a result of the crime stated in section (3) of this Law.
Financial institutions: Any financial institution, such as banks, a place of
exchanging money, or company (finance, insurance, shares, financial papers, hire-
purchase or real property).
Workers: All workers and employees of financial institutions.
Competent authority: The executive power and the organs thereof, as well as the
administrative units.
Judicial bodies: The competent courts and public prosecutions, according to the
Laws in force.
The Regulations: The Executive Regulations of this Law.
489
Part Two: Money Laundering Crimes
Section (3) Money laundering is a crime punishable under the provisions of this Law.
Any person shall be taken to have committed a money laundering crime who commits,
participates, assists, instigates, or conceals the commission of:
(a) Any of the crimes inflicted against all the property acquired as a result of committing
one of the following crimes:
(1) The crimes specified in the Law of Combating Kidnapping Crimes.
(2) Theft, embezzlement of public property or taking possession thereof by
deceptive means, bribes, and breach of trust.
(3) Forgery and counterfeiting official seals, currency or public notes.
(4) Taking possession of private property punishable under the Penal Code.
(5) Evasion of customs duties.
(6) The unlawful importation and trading in weapons.
(7) Growing or manufacture of, or trading in drugs; as well as the manufacturing
of or trading in alcohol; or likewise as regards the activities which are prohibited
under the sharia.
(b) Any of the following actions, which are the consequence of any of the crimes referred
to in paragraph (a), namely:
(1) Concealing the true source of the unlawful property, or giving false justification
of the said source.
(2) Transferring or exchanging the property, knowing that the property is unlawful,
with the intention of concealing or fabricating the source thereof, or assisting
a person to avoid punishment or responsibility.
(3) Getting hold of the unlawful property, or taking possession or utilising or using
thereof: in the purchase of moveable or immoveable property.
Part Three: The Financial Institutions
Obligations
Section (4) The financial institutions are under an obligation to comply with the following
procedures:
(1) Not to open or keep accounts in the names of persons without verifying the official
documents concerning them, and safe-keeping a copy thereof.
(2) Not to deal with bodies corporate without verifying the official documents
concerning them, and safe-keeping copies thereof stating the following particulars:
(a) the name of that body corporate;
(b) address thereof;
(c) name/s of owner/s;
(d) names of the directors authorised to sign on their behalf;
(e) the registration certificate of the said body and publication thereof, in
accordance with the Laws in force.
(3) Safe-keeping of all the documents concerning their customers; financial/
commercial cash transactions thereof, locally or abroad for a period which shall
not be less than five years, with effect from the end of the end of the transaction;
and provided that all the said required documents shall be submitted to the Unit
to be scrutinised in accordance with section (13) of this Law.
Section (5)
(1) The financial institutions are under an obligation to notify the Unit of any
transaction intended as money laundering, in case verification thereof has already
been undertaken.
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490
(2) The financial institutions and those workers thereof are prohibited when applying
the provision of paragraph (a) of this section from notifying their customers, or
revealing any information concerning them or their activities, or from refusing to
submit the statements and documents to the Unit or to the judicial bodies, or from
objecting to enforce any order issued by the judicial bodies regarding any of the
money laundering crimes.
Section (6) The Unit shall assist the financial institutions to lay down a system and safe-
guards for internal verification and control, which makes it impossible for money
laundering to take place, in accordance with the provisions of this Law and other related
Laws.
Section (7) It shall not be possible during investigation or trial before a judicial body to
rely upon the principle of confidentiality of the accounts, in money laundering crimes,
under any other Law.
Part Four: The Committee for Combating Money Laundering and the Unit for
Collection of Information
Section (8)
(a) There shall be established, in accordance with the provisions of this Law, a
committee called the Committee for Combating Money Laundering, and it shall
be set up by a Resolution of the Prime Minister, upon the submission of the Minister
of Finance, with one representative nominated from each of the following bodies:
(1) Ministry of Finance/Chairman of the Committee.
(2) The Central Bank/Vice-Chairman.
(3) Ministry of Justice/Member.
(4) Ministry of Interior/Member.
(5) Ministry of Foreign Affairs/Member.
(6) Ministry of Industry and Trade/Member.
(7) Central Organisation of Audit/Member.
(8) Association of Banks/Member.
(9) Confederation of Chambers of Commerce and Industry/Member.
(b) The Chairman shall nominate any of the Committee members as Secretary.
(c) The Committee may, in performing its responsibilities, seek the assistance
of whoever it deems appropriate.
Section (9) The Committee shall perform the following duties:
(a) Preparing the regulations and procedures for combating money laundering, and
submission thereof to the Council of Ministers for approval, provided that they do
not contradict the provisions of this Law and Executive Regulations thereof.
(b) Laying down and approving the standing orders for the work of the Committee in
accordance with the provisions of this Law.
(c) Coordinating and facilitating the exchange of information amongst the bodies
represented in the Committee.
(d) Convening symposia and workshops concerned with money laundering.
(e) Representing the Republic at international events concerned with money
laundering.
Section (10) The Committee shall submit a report regarding its work every three months,
or when asked so to do.
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Section (11) There shall be established, by a resolution of the Governor of the Central
Bank, a Unit for the collection of data, concerned with receiving and analysing the
data and reports regarding any money laundering transactions, in accordance with the
provisions of this Law; and the resolution shall specify the scientific and technical basis
of the Unit.
Section (12) The employees of the Unit shall be bound to observe the confidentiality of
the data concerning their duties, and they are prohibited from using the said data for
any purposes other than those specified in this Law.
Section (13) The Unit may, when notified of the commission of any money laundering,
acquire the necessary information and documents from the official bodies as well as
financial institutions, after having obtained the approval of the Governor.
Section (14) The people at the Central Bank of Yemen, in charge of the control and
supervision over the banks, the bureaux for money exchange and similar institutions,
are under an obligation to notify the Unit of the transactions which, according to their
verification, come within the ambit of money laundering transactions.
Section (15) The Unit shall, by a written report, notify the Attorney-General of the
commission of any money laundering crimes. The documents verifying the said
commission shall be attached to the report, and a copy thereof sent to the Committee.
Part Five: International Cooperation, Exchange of Information and Extradition of
Non-Yemeni Criminals
Section (16) Having regard to the provisions of this Law, and after obtaining the
permission of the judiciary, the Committee may, upon an official application from a
judicial body in any other country, provide thereto information concerning the
commission of money laundering, specified in the application, provided that there
exists a bilateral agreement regulating the matter.
Section (17) The Committee may, by virtue of a final court judgment passed in another
country according to a bilateral agreement regulating the matter, make an application
to the Yemeni judicial bodies, under the Laws in force, for tracing, freezing or seizing
of the property and assets as well as the proceeds thereof which concern and relate to
money laundering crimes; and the Yemeni judicial bodies shall dispose of the application.
Section (18) Non-Yemenis convicted of any of the crimes stated in section (3) of this Law
may be extradited, in accordance with the Laws in force as well as the international
conventions to which the Republic is signatory and, furthermore, in accordance with
the principle of reciprocity and after the approval of the Attorney-General has been
obtained.
Part Six: Procedures of Investigation and Trial
Section (19) The Attorney-General, personally, or through one of the public prosecutors
specifically empowered by him, shall take charge of the investigative proceedings as
well as institute any criminal actions before the court, as regards money laundering
crimes and the crimes connected therewith which are provided for under this Law.
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492
Section (20) The Attorney-General shall apply to the competent court to take interim
precautionary measures, including orders for seizure of the property and freezing of
the account/s which are the subject-matter of the money laundering crime, in
accordance with the Criminal Procedure Law.
Part Seven: Penalties
Section (21) Without prejudice to any more serious punishment provided for in any
other Law:
(1) Whoever has committed a money laundering crime under section (3) of this Law
shall be punished with imprisonment for a term which shall not exceed five years.
(2) Without prejudice to the rights of third parties with good intentions, all properties
and proceeds acquired from the crimes concerned with and related to money
laundering shall be confiscated, in accordance with a final court judgment, in
favour of the State Treasury.
(3) The court shall order the cancellation of the licences and the suspension of all
activities in addition to any other supplementary punishments under the Laws in
force.
(4) Having regard to the provision of section (7) of this Law, anyone convicted of
violating the provisions of section (5) of this Law shall be punished with
imprisonment for a term not exceeding three years, or a fine of a sum not exceeding
500,000 Yemeni Riyals, roughly equivalent to U.S.$ 3,000.
Part Eight: Concluding Provisions
Section (22) The provisions of this Law shall be applicable in respect of the following
bodies:
(1) The branches abroad of the financial institutions, which have their main head-
quarters inside the Republic.
(2) The branches inside the Republic of foreign financial institutions, which have their
main headquarters abroad.
Section (23) The Executive Regulations of this Law shall be issued by a Republican
Resolution, after the approval of the Council of Ministers has been obtained.
Section (24) This Law shall come into force with effect from the date of the promulgation
thereof, and shall be published in the Official Gazette.
Promulgated by the President of the Republic, Sanaa.
Dated: 3rd Safar, 1424 A.H.
Corresponding to: 5 April 2003 A.D.
Ali Abdallah Saleh, President of the Republic
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Part IV
Selected Cases
494
495
The Wall at the ICJ
The International Court of Justice was asked by the Special General
Assembly in December 2003 to advise on the following question:
What are the legal consequences arising from the construction of the wall being built
by Israel, the occupying power, in the Occupied Palestinian Territory, including in and
around East Jerusalem, as described in the report of the Secretary-General, considering
the rules and principles of international law, including the Fourth Geneva Convention
of 1949, and relevant Security Council and General Assembly resolutions?
The Wall and
International Humanitarian Law
*
Professor Iain Scobbie
In their pleadings submitted to the International Court of Justice (the Court) in

relation to the request submitted by the General Assembly for an advisory opinion on
the Legal consequences of the construction of a wall in the Occupied Palestinian Territories,
1
some States for instance, Australia, Belgium, Cameroon, Canada, Israel, Italy, the
Netherlands, Spain, the Marshall Islands, Micronesia, Palau and the United Kingdom
have argued that the Court should decline to deliver an opinion. Others notably
the United States while arguing that there are reasons why the Court should decline
jurisdiction, have perhaps taken a more nuanced view, indicating issues that should not
be addressed by the Court if it decides to deliver a substantive opinion in order to avoid
prejudice to the Peace Process. A third group of States including Brazil, Egypt, France,
Jordan, Palestine, Sweden and Switzerland have presented pleadings addressing both
the Courts competence to deliver the opinion and the substance of the case. Should
the Court be persuaded by the arguments of the first group of States and refuse to
deliver an opinion, this will contradict its settled jurisprudence regarding the exercise
of its advisory competence.
2
As France observed, however, should the Court deliver an opinion, it must necessarily
address the prior question of its legality:
* This paper was initially delivered to a United Nations International Meeting on the Impact of
the Construction of the Wall in the Occupied Palestinian Territory, held in Geneva on 15-16
April 2004. The text of this revised version was finalised before the Court delivered its advisory
proceedings.
Sir Joseph Hotung Research Professor in Law, Human Rights and Peace Building in the Middle
East, School of Oriental and African Studies, University of London.
1 All the pleadings in the proceedings, with the exception of Israels submission that Judge
Elaraby should be disqualified (see the Courts 30.01.04 Order on the composition of the
Court), are available on the Courts website: www.icj-cij.org.
2 See, for instance, Scobbie, I, Legal consequences of the construction of a wall in Occupied Palestinian
Territory: request for an advisory opinion. An analysis of issues concerning competence and procedure,
available at www.soas.ac.uk/lawpeacemideast/.
496
[The] question concerns solely the legal consequences of the construction of the disputed wall
in the Occupied Palestinian Territory . . . It is not about the conformity of the construction
of the wall with international law. Determining its lawfulness is however prerequisite to
responding to the question posed:
first, the consequences of the construction of the wall along the chosen route are obviously
very different depending on whether or not the construction is deemed in compliance
with international law;
secondly, in order to determine those consequences, it is necessary to ascertain not only
whether the construction of the wall along the chosen route is lawful but also, if it is not,
which exact rules of international law have been violated.
3
This article considers an aspect of the second point raised by France, by considering
whether the construction of the wall violates any rules of international humanitarian
law in particular. Some of the pleadings submitted to the Court have identified various
rules which, it is claimed, have been breached by the construction of the wall. I shall
concentrate on the protection afforded to privately owned property by the rules of
international humanitarian law, and conclude by considering whether there are any
legal justifications available to exculpate Israel for any breaches it has committed.
4
Relevance of humanitarian law
To argue that international humanitarian law is relevant to the construction of the wall
in occupied territory pre-supposes that it is applicable. Israel, notoriously, has denied
this, although this is not a view shared by other parties to the Fourth Geneva Convention,
relative to the Protection of Civilian Persons in Time of War, nor of the International
Committee of the Red Cross. As Kuttner records:
The International Committee of the Red Cross (ICRC), in a note handed to the Government
of Israel on 24 May 1968, indicated that its interpretation of [common Article 2 of the 1949
Geneva Conventions
5
] was that an occupation such as to effect the automatic application of
the Convention exists where territory under the authority of one of the parties passes under
the authority of an opposing party. Israel, in its reply to that note on 16 June 1968, indicated
its willingness to permit the Committee to continue its humanitarian work in the territories,
but expressly declined to accept its interpretation of Article 2.
6
More recently, during the December 2001 Conference of the High Contracting Parties
to the Fourth Geneva Convention, convened by Switzerland (as depository) pursuant
3 Written statement of France, p. 2, para. 9: emphasis in original; translation by the Registry of
the International Court.
4 Considerations of space do not allow for an analysis of the legality of any use of publicly owned
land in the Occupied Territories for the construction of the wall, although doubt must be
expressed whether Israel is fulfilling the standard of a bonus paterfamilias required by the
principle of usufruct embodied in Article 55 of the Hague Regulations. On the treatment of
publicly owned property by a belligerent occupant, see Scobbie, I, Natural resources and belligerent
occupation: mutation through permanent sovereignty, in Bowen, S. (Ed.), Human rights, self-
determination and political change in the Occupied Palestinian Territories (Nijhoff: The Hague: 1997)
2221 at 232 et seq, and the materials cited therein.
5 The first two paragraphs of common Article 2 provide:
In addition to the provisions which shall be implemented in peacetime, the present
Convention shall apply to all cases of declared war or of any other armed conflict which
may arise between two or more of the High Contracting Parties, even if the state of war is
not recognised by one of them.
The Convention shall also apply to all cases of partial or total occupation of the territory
of a High Contracting Party, even if the said occupation meets with no armed resistance.
6 Kuttner, T.S., Israel and the West Bank: aspects of the law of belligerent occupation, 7 Israel Yearbook
on Human Rights 166 (1977) at 169-170: footnotes omitted.
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to General Assembly resolution ES-10/7, the ICRC declared:
2. In accordance with a number of resolutions adopted by the United Nations General
Assembly and Security Council and by the International Conference of the Red Cross and
Red Crescent, which reflect the view of the international community, the ICRC has always
affirmed the de jure applicability of the Fourth Geneva Convention to the territories occupied
since 1967 by the State of Israel, including East Jerusalem. This Convention, ratified by
Israel in 1951, remains fully applicable and relevant in the current context of violence. As an
Occupying Power, Israel is also bound by other customary rules relating to occupation,
expressed in the Regulations annexed to the Hague Convention respecting the Laws and
Customs of War on Land of 18 October 1907.
7
This Conference adopted a declaration, which reflected the common understanding
of the participating High Contracting Parties, and reaffirmed in paragraph 3:
. . . the applicability of the Convention to the Occupied Palestinian Territory, including East
Jerusalem and reiterate the need for full respect for the provisions of the said Convention in
that Territory.
8
Although Dinstein argues that, as the result of the agreements concluded during the
Peace Process, Israels belligerent occupation of the West Bank and Gaza has terminated,
9
this view has not been accepted by the Israel High Court which recently ruled that the
territories are subject to a belligerent occupation by the State of Israel.
10
Nevertheless,
the official governmental position has been that the West Bank and Gaza are territories
which Israel merely administers, and are not subject to the legal regime of belligerent
occupation. This view was based on the claim that, when Israel invaded the territories,
Jordan and Egypt, the States which previously had controlled them, did not themselves
possess sovereignty over Gaza and the West Bank. Accordingly, Israel asserted that
because it had displaced no legitimate sovereign, it could not be a belligerent occupant.
11
In deciding cases bearing arising in the Occupied Palestinian Territories, however, the
Israel High Court has consistently found the international law governing belligerent
7 Available at: www.icrc.org/Web/eng/siteeng0.nsf/iwpList393/
64EF7FE0FC58B5EBC1256B660060BCF0.
8 Available at: www.eda.admin.ch/eda/e/home/foreign/hupol/4gc/
docum2.Par.0006.UpFile.pdf/mg_011205_4gcdeclarn_e.pdf.
9 Dinstein, Y., The international legal status of the West Bank and the Gaza Strip 1998, 28 Israel
Yearbook on Human Rights 37 (1998).
10 Ajuri et al v. IDF Commander in the West Bank et al (3 September 2002), p. 17, para. 22, available
at: 62.90.71.124/eng/system/index.htm clicking on Judgments opens the search page for
the Israel High Courts website. Entering Ajuri into the party search domain calls up the
pdf version of the judgment, which is formatted as [2002] Isr LR 1.
11 On this issue see, for instance, van Baarda, T.A., Is it expedient to let the World Court clarify, in an
advisory opinion, the applicability of the Fourth Geneva Convention in the Occupied Territories?, 10
Netherlands Quarterly of Human Rights 4 (1992); Bar-Yaacov N., The applicability of the laws of
war to Judea and Samaria (the West Bank) and to the Gaza Strip, 24 Israel Law Review 485 (1990);
Blum Y., The missing reversioner: reflections on the status of Judea and Samaria, 3 Israel Law Review
279 (1968); Boyd, S.M., The applicability of international law to the Occupied Territories, 1 Israel
Yearbook on Human Rights 258 (1971); Lapidoth, R., International law within the Israel legal
system, 24 Israel Law Review 451 (1990) at 477-479; and Shamgar, M., The observance of
international law in the administered territories, 1 Israel Yearbook on Human Rights 262 (1971).
Kretzmer notes that, when the IDF took control of the West Bank, the military commander
assumed all governmental powers, and issued an order that made proceedings before military
courts subject to the Fourth Geneva Convention: this was subsequently revoked, as the IDF
view that the territories were occupied was incompatible with the stance adopted by many
Israeli politicians see Kretzmer, D., The occupation of justice: the Supreme Court of Israel and the
Occupied Territories (SUNY Press: Albany: 2002) 32-35, and Chapter Two generally.
498
occupation applicable. Accordingly, in the Ajuri case, for example, President Barak
observed:
I would like to make the following two remarks: first, all the parties before us assumed that in
the circumstances currently prevailing in the territory under the control of the IDF, the laws
of international law concerning belligerent occupation apply (see, in this regard, HCJ 102/
82 Zemel v. Minister of Defence, at p. 373; HCJ 574/82 El Nawar v. Minister of Defence; HCJ 615/
85 Abu Satiha v. IDF Commander); second, the rules of international law that apply in the territory
are the customary laws (such as the appendix to the (Fourth) Hague Convention respecting
the Laws and Customs of War on Land of 1907, which is commonly regarded as customary
law; hereafter the Fourth Hague Convention). With regard to the Fourth Geneva
Convention, counsel for the Respondent reargued before us the position of the State of
Israel that this convention which in his opinion does not reflect customary law does not
apply to Judaea and Samaria. Notwithstanding, Mr Nitzan told us in accordance with the
long established practice of the Government of Israel (see M. Shamgar, The Observance of
International Law in the Administered Territories, 1 Isr. Y. H. R. 1971, 262) that the
Government of Israel decided to act in accordance with the humanitarian parts of the Fourth
Geneva Convention. In view of this declaration, we do not need to examine the legal
arguments concerning this matter, which are not simple, and we may leave these to be decided
at a later date. It follows that for the purpose of the petitions before us we are assuming that
humanitarian international law as reflected in the Fourth Geneva Convention (including
article 78) and certainly the Fourth Hague Convention applies in our case.
12
This ruling reflects the established position that the 1907 Hague Regulations (annexed
to Hague Convention IV) have customary status.
13
Some States have argued before the
International Court that the provisions of the Geneva Conventions have also been
transformed into custom,
14
relying on rulings made by the International Court in the
Legality of the threat or use of nuclear weapons advisory opinion, namely:
79. It is undoubtedly because a great many rules of humanitarian law applicable in armed
conflict are so fundamental to the respect of the human person and elementary
considerations of humanity as the Court put it in its Judgment of 9 April 1949 in the Corfu
Channel case (I.C.J. Reports 1949, p. 22), that the Hague and Geneva Conventions have enjoyed
a broad accession. Further these fundamental rules are to be observed by all States whether
or not they have ratified the conventions that contain them, because they constitute
intransgressible principles of international customary law.
. . .
82. The extensive codification of humanitarian law and the extent of the accession to the
resultant treaties, as well as the fact that the denunciation clauses that existed in the
codification instruments have never been used, have provided the international community
with a corpus of treaty rules the great majority of which had already become customary and
which reflected the most universally recognized humanitarian principles. These rules indicate
the normal conduct and behaviour expected of States.
15
12 Ajuri v IDF Commander in the West Bank, pp. 12-13, para. 13: notes omitted.
13 This position was first set out in the Cessation of vessels and tugs for navigation on the Danube case,
1 Reports of International Arbitral Awards 83 (1921) at 104, and authoritatively endorsed by
the International Military Tribunal at Nuremberg in the Trial of the German major war criminals,
Cmd. 6964 (1946) at 65. The Nuremberg ruling was expressly endorsed by then-President
Shamgar of the Israel High Court in Affo v. IDF Commander in the West Bank, 83 International
Law Reports 122 at 163.
14 For instance, Jordan asserted in its Written Statement that the Fourth Geneva Convention
may be regarded as wholly or at least in substantial part declaratory of customary international
law 63, para. 5.69(c); and the Arab League stated that, the rules of the Fourth Convention
and of the Hague Regulations also apply as a matter of customary international law, Written
Statement 83, para. 9.4.
15 Legality of the threat or use of nuclear weapons advisory opinion (8 July 1996) paras. 79 and 83.
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Claims have also been made that the Israel High Court recognised the customary status
of the Fourth Geneva Convention in the Ajuri case, most notably by Palestine in its
Written Statement which alleged that the judgment contained the ruling that:
. . . it is almost undisputed that the Fourth Geneva Convention reflects customary law and
binds all states even those that have not signed it because it enshrines basic principles
accepted by all states.
16
This ruling does not appear in the judgment, nor is it adverted to in commentaries to
the case,
17
which it surely would have been had the High Court made this finding. Such
a ruling would have reversed the High Courts previous jurisprudence on its ability to
enforce the Fourth Geneva Convention as a matter of Israeli law: customary international
law automatically forms part of Israeli law, cognisable by the courts, while treaties which
have not been incorporated into domestic law do not.
18
Instead, the High Court
contented itself with the situational ruling, quoted above, based on the parties consensus
that the provision of the Fourth Geneva Convention relevant to the case reflected
custom.
Indeed, within the context of the advisory opinion proceedings before the
International Court, it is perhaps counterproductive to argue that the provisions of the
Fourth Geneva Convention apply as customary rules rather than as conventional
provisions. Although this is a useful strategy before Israeli courts, to circumvent claims
that the Convention is not cognisable because it has not been incorporated into Israeli
domestic law, it is irrelevant before the International Court. It simply does not matter
at the international level whether Israels obligations are conventional or customary.
Unlike before Israeli courts, there is nothing to gain by claiming that they are customary.
Indeed, to insist that the Conventions provisions have customary rather than
conventional status might well detract from the legal consequences of breach the Court
could potentially indicate. The Court may decide to elaborate on the obligations of
High Contracting Parties under common Article 1 of the Conventions. This provides:
The High Contracting Parties undertake to respect and to ensure respect for the present
Convention in all circumstances.
19
16 Palestine Written Statement, 185, n. 310. The same claim is made, and quotation used, in a
position paper prepared by the International Federation for Human Rights (FIDH) and the
International Commission of Jurists, entitled Legal consequences of the construction of a wall in
Occupied Palestinian Territory (request for an advisory opinion), available at www.icj.org/IMG/pdf/
wall_paper_ICJ_The_Hague.pdf, at 6.
17 For instance, Benvenisti, E., Case Review: Ajuri et al. v. IDF Commander in the West Bank et. al.,
available at 62.90.71.124/eng/system/index.htm; Vagts D., Ajuri v. IDG Commander in West
Bank, 97 American Journal of International Law 173 (2003).
18 See Lapidoth, n. 12 above; and also her National treaty law and practice: Israel, in Leigh M. et al
(Eds.), National treaty law and practice: Canada, Egypt, Israel, Mexico, Russia, South Africa (ASIL,
Studies in Transnational Legal Policy, No. 33: Washington: 2003), 65, especially at 74-76. See
also Kretzmer, note 12 above, 35-40 on the High Courts approach to the Fourth Geneva
Convention.
19 On the exegesis of this provision, see Pictet, J. (Ed.), Commentary to Geneva Convention IV relative
to the protection of civilian persons in time of war (ICRC: Geneva: 1958) 16; Condorelli, L. and de
Chazournes, L.B., Quelques remarques propos de lobligation des tats de respecter et faire respecter
le droit international humanitaire en toutes circonstances, in Swinarski, C. (Ed.), Studies and essays
in honour of Jean Pictet (ICRC/Nijhoff: Geneva/The Hague: 1984) 17; and generally, Gasser,
H.P., Ensuring respect for the Geneva Conventions and Protocols: the role of third States and the United
Nations, in Fox, H. and Meyer, M. (Eds.), Effecting compliance (BIICL: London: 1993) at 15. See
also Sassli M. and Bouvier A., How does law protect in war? (ICRC: Geneva: 1999) 231-233, and
their Un droit dans la guerre? (ICRC: Geneva: 2003) 282-285, and the materials cited therein.
500
While the undertake to respect aspect of this provision simply, and perhaps
redundantly, reiterates the foundational principle of pacta sunt servanda, it is difficult
to conceive how the ensure respect undertaking could readily achieve customary
status. This envisages ensuring the performance of other High Contracting Parties of
their obligations under the Convention. Where a States own interests are not injured
by the breach of an international custom by another, under the law of State responsibility,
it can only invoke the responsibility of the delinquent State if it has breached an
obligation owed to the international community as a whole (an obligation erga omnes
partes).
20
Not all provisions of the Geneva Conventions have this status for instance,
the provisions regarding facilities for the recreation study, sports and games of
prisoners of war, or their duties to salute, contained in Articles 38 and 39 of Convention
III, or the analogous provisions for civilian internees recreation in Article 94 of
Convention IV.
Accordingly, to argue before the International Court on the basis of custom is simply
to introduce an unnecessary complication. Israel is a party to the Fourth Geneva
Convention. Its claim that the Convention does not apply in the Occupied Territories
has been unanimously rejected by other States Parties, relevant international
organisations, and by the vast majority of doctrinal writers. This demonstrates the
invalidity of the Israeli contention.
Requirement of humane treatment of the civilian population
The construction of the wall within the Occupied Palestine Territories breaches a
number of rules contained in the Hague Regulations and the Fourth Geneva
Convention.
21
For instance, Amnesty International
22
has claimed that this involves a
breach of Article 27 of the Fourth Geneva Convention, which provides that protected
persons shall at all times be humanely treated although the Parties to the conflict
may take such measures of control and security in regard to protected persons as may
be necessary as a result of the war. As the ICRC commentary to Article 27 underlines:
Article 27 is the basis on which the Convention rests, the central point in relation to which
all its other provisions must be considered.
23
Although an occupant may impose measures of control and security, the freedom of
movement of civilians in occupied territory cannot be:
. . . suspended in a general manner. Quite the contrary: the regulations concerning
occupation . . . are based on the idea of the personal freedom of civilians remaining in
general unimpaired.
24
20 See the International Law Commissions 2001 Articles on the responsibility of States for internationally
wrongful acts, Articles 42 and 48: also Crawford, J., The International Law Commissions Articles on
State responsibility: introduction, text and commentaries (Cambridge UP: Cambridge: 2002) 254 et
seq; and Scobbie, I, The invocation of responsibility for the breach of obligations under peremptory
norms of general international law, 13 European Journal of International Law 1201 (2002).
21 As Israel is not a party to the 1977 Additional Protocol I to the Geneva Conventions, it can
only be held accountable for breaches of those of its provisions which also form part of
customary international law.
22 See Amnesty International, Israel and the Occupied Territories. The place of the fence/wall in
international law, available at web.amnesty.org/library/index/engmde150162004; and also its
Israel and the Occupied Territories. Surviving under siege: the impact of movement restrictions on the
right to work (September 2003), available at web.amnesty.org/aidoc/aidoc_pdf.nsf/Index/
MDE150012003ENGLISH/$File/MDE1500103.pdf, in particular at 27 et seq and 49 et seq.
23 Pictet, n. 20 above, 200-201.
24 Pictet, n. 20 above, 202.
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Freedom of movement can only be restricted within the limits laid down by the
Convention, and:
What is essential is that the measures of constraint. . . should not affect the fundamental
rights of the persons concerned . . . [T]hose rights must be respected even when measures
of constraint are justified.
25
The pivotal nature of this provision, and the general principles it expresses, buttresses
claims that the construction of the wall breaches other Convention IV provisions which
essentially specify given examples of its application, such as Article 50 (the obligation
to ensure the proper working of all institutions devoted to the care and education of
children); Article 52 (the prohibition of all measures aiming at creating unemployment
or at restricting the opportunities offered to workers in occupied territory); Article 55
(the duty of ensuring the food and medical supplies of the population); and Article
56 (the duty of ensuring and maintaining . . . the medical and hospital establishments
and services, public health and hygiene in the occupied territory). Given the
relationship between Article 27 and these more specific provisions, the question arises
whether the cumulative effect is that the grave breach of inhumane treatment, as
defined in Article 147, has been committed. The ICRC Commentary concedes that
this is rather difficult to define, but:
the aim of the Convention is certainly to grant civilians in enemy hands a protection which
will preserve their human dignity and prevent them being brought down to the level of
animals. That leads to the conclusion that by inhumane treatment the Convention does
not mean only physical injury or injury to health. Certain measures, for example, which
might cut the civilian internees off completely from the outside world and in particular
from their families, or which caused grave injury to their human dignity, could conceivably
be considered as unhuman treatment.
26
Interference with property rights and international humanitarian law
In the summary of the Israeli governments legal position annexed to the Secretary-
Generals Report prepared pursuant to General Assembly resolution ES-10/13, it is
stated that Israel relies on Article 23/g of the 1907 Hague Regulations which permits
the seizure of property if demanded by the necessities of war; that before the General
Assembly on 20 October 2003, Israel claimed that construction of the wall was consistent
with Article 51 of the U.N. Charter and its inherent right of self-defence; that the land
requisitions are proportionate to the Israeli deaths and injuries; and that Israel has
claimed that the requisition of land for construction does not change the ownership of
the land, and that compensation is available for the use of the land, crop yield or damage
caused to the land.
27
It must be doubted whether self-defence, in terms of Article 51 of the Charter,
28
is
an operative concept in the context of a continuing belligerent occupation, as the
27 U.N. Doc A/ES-10/248 (24 November 2003): the summary of Israels legal position forms
Annex I of this Report: see paras. 2, 6, 7 and 8.
28 Article 51 of the U.N. Charter provides:
Nothing in the present Charter shall impair the inherent right of individual or collective
self-defence if an armed attack occurs against a Member of the United Nations, until the
Security Council has taken measures necessary to maintain international peace and security.
Measures taken by Members in the exercise of this right of self-defence shall be immediately
reported to the Security Council and shall not in any way affect the authority and
responsibility of the Security Council under the present Charter to take at any time such
action as it deems necessary in order to maintain or restore international peace and security.
502
moment for the application of the law regulating the ius ad bello would appear to be
long past. Further, as Jordan, for instance, noted in its written statement to the Court,
Article 51 appears to be irrelevant because there has been no armed attack on Israel,
and Israel has not reported to the Security Council that the construction of the wall is
a measure that it is taking in self-defence.
29
Leaving this issue to one side, Israels arguments should be addressed on their own
terms. It justifies its requisition of land for the construction of the wall on Article 23/g
of the Hague Regulations. This provides:
In addition to the prohibitions provided by special Conventions, it is especially forbidden
. . .
(g)to destroy or seize the enemys property, unless such destruction or seizure be imperatively
demanded by the necessities of war . . .
Whether the land requisitions are justified by the necessities of war, and thus by Article
23/g, need not detain us. This Article is simply not relevant, because it is contained in
Section II (Hostilities) of the Hague Regulations, and not in Section III (Military
authority over the territory of the hostile State). The Special Criminal Court of the
Hague analysed the relationship between these two Sections in In re Fiebig (1949), and
ruled that:
. . . it was evident that the provisions of Section II remained in operation so long as there was
still active war between the invading forces and the forces of the invaded country, a period
which ends with a capitulation or an armistice . . . After such a capitulation or armistice,
while the war may continue elsewhere, it is Section III and no longer Section II which regulates
the rights and obligations of the invader as Occupant.
30
This relationship between the two Sections has been affirmed by publicists
31
and by the
ICRC Commentary on Convention IV.
32
Accordingly, the justification offered by Israel
for land requisitions fails, but it must be considered whether others exist.
Property and the Hague Regulations
The treatment of property under the regime of belligerent occupation is principally
governed by the Hague Regulations;
33
The Fourth Geneva Convention concentrates
on the protection of the person. Under Article 46 of the Hague Regulations, private
property must be respected and cannot be confiscated. Ex facie, this only affords
protection against the loss of property through outright confiscation. As, allegedly,
Israel has undertaken to compensate individuals for losses sustained, and the ownership
of the land does not change, apparently it does not fall foul of the prohibition on
confiscation.
Nevertheless, in its written statement to the International Court, Jordan advanced
an interesting counter-argument which has some merit, namely that this prohibition
29 Jordanian Written Statement, 140, para. 5.270; see from 138 et seq.
30 16 Annual Digest of Public International Law Cases 487 at 489.
31 See, for instance, Hyde, C.C., International law, chiefly as interpreted and applied by the United States
(Little Brown: Boston: 1951, 2nd rev edn) Vol III, 1892-1893; Oppenheim,L., International law:
a treatise. Vol.II, Disputes, war and neutrality (Longmans: London: 1952, 7th edn by Lauterpacht,
H.) 412-417; and Schwarzenberger, G., International law as applied by international courts and
tribunals. Vol II, The law of armed conflict (Stevens: London: 1968) 266.
32 See Pictet, n. 20 above, 301 (commentary to Article 53).
33 For an analysis of the provisions of the Hague Regulations protecting property, see Feilchenfeld
E., The international economic law of belligerent occupation (Carnegie Endowment for International
Peace: Washington: 1942) Chapter Two.
Selected Cases
503
on confiscation must be read in the light of general international law governing
expropriation. Jordan argued:
Expropriation in international law connotes the deprivation of a persons use and enjoyment
of his property, either as the result of a formal act having that consequence, or as the result
of other actions which de facto have that effect. Expropriation involves the deprivation by
State organs of a right of property either as such, or by permanent transfer of the power of
management and control.
34
Drawing on the decisions of international tribunals as well as doctrinal writings, Jordan
concluded that the fact that there may have been no formal expropriation, that Israeli
administrative measures do not describe the taking of property as a taking or as
involving a change of ownership does not mean that no expropriation has taken place
in the sense of international law.
35
The key point is whether the interference with
property rights is so comprehensive that they no longer yield benefits for the owner
and become useless. This occurs when the owner is deprived of the effective use, control
and benefit of the property, in which case it must be deemed to have been
expropriated.
36
Accordingly, by looking beyond the formal legal position to the actual
circumstances, it is arguable that Israel is in beach of Article 46 of the Hague Regulations.
Even if the Jordanian argument is wrong, because of its terms Article 46 provides the
controlling principle for the treatment of private property, thus any interference with
property rights must find justification within the terms of the Regulations. In relation
to land, powers of interference are granted to the Occupant only by Article 52, which
provides in part:
Requisitions in kind and services shall not be demanded from municipalities or inhabitants
except for the needs of the army of occupation...
Manifestly, this cannot legitimise land requisitions for the construction of the wall,
because Israel expressly claims that it is a measure taken in self-defence for the protection
of the civilian population. Further, as the Israel High Court recognised in the Elon
Moreh case:
. . . the military needs mentioned in [Article 52] cannot include, according to any reasonable
interpretation, national-security needs in their broad sense.
37
Accordingly, no justification for the requisitioning of land for the construction of the
wall can be found in the Hague Regulations.
Property and the Fourth Geneva Convention
The Fourth Geneva Convention is supplementary to the Hague Regulations. Article
154 provides:
In the relations between Powers who are bound by the Hague Conventions respecting the
Laws and Customs of War on Land, whether that of 29 July 1899, or that of 18 October 1907,
and who are parties to the present Convention, this last Convention shall be supplementary
to Sections II and III of the Regulations annexed to the above-mentioned Conventions of
the Hague.
34 Jordanian Written Statement 134, para. 5.254: the definition of expropriation quoted is from
Brownlie, I., Principles of public international law (Oxford UP: Oxford: 2003, 6th edn) 508-509.
35 Jordanian Written Statement 135-136, para. 5.257.
36 Jordanian Written Statement 136, para. 5.259.
37 Mustafa Dweikat et al v. the Government of Israel et al 9 Israel Yearbook on Human Rights 345
(1979) at 350: see also Hussein Buksh Khan v. Mudalia and another (Supreme Court of Burma,
1952) 23 International Law Reports 809; and Jerusalem District Electricity Co Ltd v. (a) minister of
Energy and Infrastructure, (b) Commander of the Judea and Samaria Region (Israel High Court) 11
Israel Yearbook on Human Rights 354 (1981).
504
The Fourth Geneva Convention principally provides for the protection of the civilian
population of occupied territory, but contains one potentially relevant provision for
Israels treatment of property in the Occupied Palestinian Territories. This, however,
deals with the destruction and not the requisition of property. Article 53 provides:
Any destruction by the Occupying Power of real or personal property belonging individually
or collectively to private persons, or to the State, or to other public authorities, or to social or
cooperative organisations, is prohibited, except where such destruction is rendered absolutely
necessary by military operations.
It could be argued that land, particularly agricultural land, requisitioned for the wall
has been effectively destroyed because it can no longer be utilised: this is similar to the
Jordanian argument regarding expropriation through the deprivation of the benefits
that property might be expected to yield. Nevertheless, it is beyond doubt that buildings
have been destroyed and olive trees uprooted. The question is therefore whether this
was rendered absolutely necessary by military operations. The Convention contains
no definition of military operations, nor is this elucidated by the ICRC Commentary.
The term is, however, used in Article 51.1 of Additional Protocol I to which Israel is
not a party, but which the ICRC Commentary affirms is customary.
38
This provides:
The civilian population and individual civilians shall enjoy general protection against dangers
arising from military operations. To give effect to this protection, the following rules, which
are additional to other applicable rules of international law, shall be observed in all
circumstances.
The Commentary observes:
According to dictionaries, the term military operations, which is also used in several other
articles in the Protocol, means all the movements and activities carried out by armed forces
related to hostilities. A mixed group of the Diplomatic Conference gave the following
definition of the expression zone of military operations: in an armed conflict, the territory
where the armed forces of the adverse Parties taking a direct or an indirect part in military
operations, are located.
39
This entails the destruction of property in relation to an operation during which
violence is used.
40
Even if this can be interpreted to encompass a measure taken to
protect Israels civilian population, the question arises whether this destruction was
absolutely necessary. Surely this cannot be the case, as Israel could construct wall
within its own territory, rather than encroach further into Palestine a point noted by
Ireland:
Israel . . . has not shown that its stated goal in constructing the wall, namely the security
of Israel, could not be achieved by alternative means, such as constructing the wall within
Israeli territory. Indeed, the route taken by the wall indicates that [its] purpose is to protect
Israeli citizens illegally settled in the Occupied Palestinian Territory, contrary to Articles 49
and 147 of the Fourth Geneva Convention. Nor has it been shown that any destruction or
appropriation is necessitated by military operations. It is thus clear that these measures have
not been taken in accordance with international humanitarian law.
41
Accordingly, as indicated in Irelands written statement, under Article 147, there is
room to argue that Israel has committed a further grave breach of The Fourth Geneva
Convention, namely, the:
. . . extensive destruction and appropriation of property, not justified by military necessity
and carried out unlawfully and wantonly.
38 Sandoz Y. et al (Eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions
of 12 August 1949 (ICRC: Geneva: 1987) 615, para. 1923.
39 Sandoz, n. 39 above, 617, para. 1936: notes omitted.
40 Sandoz, n. 39 above, commentary to Article 48, 600, para. 1875.
41 Irish Written Statement para. 2.9.
Selected Cases
505
Israels attitude to the proceedings
The International Courts opinion on the legal consequences of the construction of
the wall is yet to be delivered. The opinion might not address some, or all, of the issues
considered in this article. The Courts task has not been aided by Israels attitude to the
proceedings. It did not participate in the oral hearings, and its written statement only:
. . . addresses the jurisdiction of the Court and the propriety of any response by it on the
substance of the request. It does not address the legality of the fence, legal consequences
that flow from it or other matters pertaining to the question of substance presented to the
Court. Israel considers that the Court does not have jurisdiction to entertain the request and
that, even were it to have jurisdiction, it should not respond to the requested opinion.
42
The strategy employed by Israel in relation to the proceedings mirrors that it adopted
in relation to the U.N. Secretary-Generals investigation into events in Jenin from March
to May 2002.
43
Although Israel initially agreed to cooperate with the fact-finding team
assembled by the Secretary-General, after taking advice, it refused to do so and, it is
alleged, Israeli politicians . . . attempted to discredit the investigation by claiming it
[was] part of a rising tide of global anti-Semitism.
44
Israels strategy before the
International Court has analogous elements of disengagement from, and pre-emptive
discrediting of, the proceedings. It has argued only on matters of competence, not
substance, and cast doubt on the Courts impartiality:
The present Chapter sets out a number of aspects of the treatment that the Court has already
given . . . which raise serious questions about the fairness of the Courts approach and its
compliance with the requirements of natural justice...
45
Somewhat paradoxically, also Israel relies on its own disengagement from the
proceedings as a reason why the Court should not deliver an advisory opinion which
addresses the question posed by the General Assembly. It argued that:
. . . the Court will not have before it sufficient information and evidence to enable it to arrive
at a judicial conclusion upon disputed questions of fact the determination of which is
necessary for it to give an opinion compatible with its judicial character.
46
The United Kingdom raised a similar objection, noting that much of the information
is available only to Israel,
47
and Palestine adverted to the difficulties it faced in preparing
its case because of there is no transparency surrounding the construction of the Wall
and its final course.
48
42 Israeli Written Statement, ii, para. 0.5.
43 The Secretary-General was asked to prepare a report by the General Assembly in resolution
ES-10/10 (7 May 2002). The report is available at www.un.org/peace/jenin.
44 Quotation from McGreal, C., Israelis dub Jenin probe anti-semitic, The Observer, 28 April 2002:
observer.guardian.co.uk/international/story/0,6903,706401,00.html; see also Secretary-
Generals Report paras 2-5; Benn A., Intl Law Expert Daniel Bethlehem warns: UN Team may
charge Israel with War Crime even based on poor Reasoning, 25 April 2002:
www.kokhavivpublications.com/2002/israel/04/0204250818.html; Benn A., Israel asks for delay
in UN fact-finding mission to Jenin camp, Ha-aretz, 26 April 2002: www.palestinecampaign.org/
archives.asp?xid=823; and Usher G., Israel attack fears after settlers shot, The Observer, 29 April
2002: observer.guardian.co.uk/international/story/0,6903,706402,00.html.
45 Israeli Written Statement, 9, para. 2.1. See also Nir O., Israel fears isolation, sanctions over the
fence, Forward, 9 January 2004, www.forward.com/issues/2004/04.01.09/news1.html.
46 Israeli Written Statement, 110, para. 8.9.
47 United Kingdom Written Statement, 24, para. 3.40.
48 Palestine Written Statement, 202, para 450: see also para. 451.
506
Arbitral tribunals have consistently drawn an adverse inference if a State fails or
refuses to produce evidence which is in its possession or control.
49
Indeed, in the
contentious Aerial incident of 27 July 1955 proceedings, Israel itself invoked this rule
when it noted that Bulgaria had refused to release information it possessed regarding
this incident, and argued:
Having regard to the manner in which the Bulgarian Government has responded to the
requests for information, the Israeli Government is contending that the Bulgarian
Government must now accept all the legal consequences deriving from the deliberate
withholding of material facts. The Government of Israel is accordingly reserving all its rights
in the matter of evidence, including the right to make appropriate applications to the Court
under Article 49 of the Statute and under any other provision or rule of law, should this
become necessary.
50
The Aerial incident case did not proceed to merits, being rejected on the basis that the
Court lacked jurisdiction, and it was a contentious case which, admittedly, the present
proceedings are not. Nevertheless, if it is assumed that the Courts competence has
been validly engaged by resolution ES-10/14, the spectre is raised of a State relying on
its own refusal to cooperate with the Court as a reason for the Court not to discharge its
lawful function. It is to be hoped that the International Court will not be so easily
dissuaded from fulfilling its task.
Postscript
The ICJ delivered its Advisory Opinion on 9 July 2004 by a majority of 14 to 1, the U.S.
Judge only dissenting. It declared that the construction of the Wall is contrary to
international law and that Israel is under an obligation to demolish it forthwith and
grant compensation to Palestinians who suffered. On 20 July 2004, the General Assembly
of the U.N. passed a Resolution in support of the ICJs ruling by 150 votes to 6, with 10
absentions.
51
49 See Sandifer, D.V., Evidence before international tribunals (University Press of Virginia:
Charlottesville: 1975, rev edn) 147 et seq.
50 Aerial incident Pleadings 98.
51 The full Opinion, Resolution and its implications will be fully dealt with in Volume 10 (2003-
2004).
Selected Cases
507
The Lockerbie Trial:
Further and Future Developments
Professor Iain Scobbie*
In Volume 8 of this Yearbook, Judge Cotran published an edited account of the appeal
brought by Abdelbaset Ali Mohmet Al Megrahi against his conviction for the murder
of 259 passengers and crew on board PanAm flight 103 from London Heathrow to
New York and 11 residents of Lockerbie on 21 December 1988.
1
This appeal was
dismissed, but the legal remedies available to Mr. Al Megrahi are by no means exhausted.
As a result of the incorporation of the European Convention on Human Rights into
Scots law in 2001, the Convention Rights (Compliance) (Scotland) Act 2001 was
adopted. Before the enactment of this Act, a court sentencing a person to life
imprisonment the mandatory sentence which must be imposed on a person convicted
of murder could recommend a minimum period which must expire before that person
could be considered for release on licence (parole). Whether this recommendation
was put into effect was, however, a decision taken by governmental ministers. This
intervention of the Executive was held to be a breach of the European Convention
and, accordingly, the 2001 Act was enacted to bring Scots law into line with the
Convention. The new procedure requires that all prisoners serving life sentences must
be brought before the High Court of Justiciary so that it can determine the minimum
period that must be served as the punishment part of the life sentence, which must
expire before the prisoner can be considered for release on licence. When and if the
prisoner is released on licence, whether at the expiry of the punishment part of the
sentence or later, is now a matter for the Parole Board for Scotland. This is a body
independent of the government, which bases its decisions on whether the prisoner
continues to present a risk to the public. On 24 November 2003, the High Court ordered
that Mr. Al Megrahi must serve 27 years as the punishment part of his life sentence.
The Court also indicated that 30 years was the maximum punishment part that could
be imposed on any individual. On 18 December 2003, the principal law officer of the
Scottish Executive, the Lord Advocate, lodged an appeal against this punishment part
of the sentence on the grounds that it was too lenient. The Lord Advocate is also
challenging the Courts view that 30 years is the maximum punishment part that can
be imposed on anyone sentenced to life imprisonment.
* Sir Joseph Hotung Research Professor in Law, Human Rights and Peace Building in the Middle
East, School of Oriental and African Studies, University of London.
1 Yearbook of Islamic and Middle Eastern Law, Vol. 8 (2001-2002), pp. 364-378. The full version of
this judgment is available on the Scottish courts website: www.scotcourts.gov.uk/download/
lockerbieappealjudgement.pdf.
508
A potentially more significant development is that in September 2003, the Scottish
Criminal Cases Review Commission received an application from Mr. Al Megrahi
requesting that it review his conviction. This is an independent body which is responsible
for reviewing alleged miscarriages of justice in Scotland. It is not a court of appeal, but
can refer cases back to the High Court for reconsideration should it decide that there
may have been a miscarriage of justice, and that it is in the interests of justice that the
case should be re-examined.
The term miscarriage of justice also lies at the heart of the Scots criminal appeal
system. Section 106(3) of the Criminal Procedure (Scotland) Act 1995 provides:
By an appeal under subsection (1) above a person may bring under review of the High
Court any alleged miscarriage of justice in the proceedings in which he was convicted,
including any alleged miscarriage of justice on the basis of the existence and significance of
additional evidence which was not heard at the trial and which was not available and could
not reasonably have been made available at the trial.
The term miscarriage of justice is not, however, defined in legislation although its
content has been elaborated in jurisprudence. This covers matters such as misdirection
of the jury on relevant points of law by the trial judge, or a wrong decision by the judge
to admit or exclude evidence. An error committed in the conduct of the trial does not,
however, automatically ensure the success of an appeal. The error must be significant
enough to have caused injustice.
This broad notion of a miscarriage of justice governs the activities of the Scottish
Criminal Cases Review Commission. Like an appeal court, it can also consider new
evidence, but only if there was some good reason why this evidence has not been
produced earlier for instance, the discovery of a new witness or as the result of
developments in forensic science. A legal officer allocated by the Commission will
examine the facts of the case, and can interview witnesses and obtain expert reports.
After scrutinising the case, the Commission must decide whether or not to refer the
case back to the High Court.
If the Commission decides not to refer a case to the High Court, it provides a statement
of reasons to the applicant for its decision. The applicant then has some time in which
to make further representations, but if no new points are advanced or if the Commission
is not persuaded that it should change its decision, the refusal to refer becomes final.
If, on the other hand, the Commission does decide to refer an application back to the
High Court for reconsideration, it must provide reasons for referral. This does not
guarantee that the applicant will have his conviction quashed, as if a case is referred
back to the High Court, it is dealt with as a normal appeal. The function of the
Commission in making its referral is simply to indicate to the High Court that it thinks
that there may have been a miscarriage of justice and that it is in the interests of justice
for the High Court to reconsider the case.
Even if Mr. Al Megrahis application to the Scottish Criminal Cases Review
Commission is unsuccessful, he has one remaining avenue of recourse. It has been
reported that he has lodged a complaint with the European Court of Human Rights,
although the terms of that complaint have not yet been made public.
Selected Cases
509
Shamil Bank of Bahrain v.
Beximco Pharmaceuticals and Others
Court of Appeal, Civil Division
28 January 2004 [2004] EWCA Civ 19
INTRODUCTION
Kilian Blz*
Islamic financing transactions are often implemented in a non-Islamic legal
environment, meaning a jurisdiction which is not effectively bound by and does not
give effect to the relevant principles of the Islamic sharia. In most jurisdictions today
the business model for Islamic financial institutions is based on a reference to Islamic legal
principles which are not enforced as the law of the land. Transactions guided by the principles
of the Islamic sharia are transacted in the shadow of the official legal order.
This situation raises a number of rather intricate legal questions, among them: how
do Islamic contractual structures, such as the murbaha (Morabaha)and the ijra (Ijarah),
relate to the official laws of the jurisdiction in which they are implemented? In particular:
will a state court enforce an agreement which, at least in terms of the underlying
structure, is informed by traditional Islamic legal concepts (as opposed to the respective
jurisdictions official law)? And further: who, under such circumstances, shall be vested
with the competence to decide whether the business transacted by an Islamic financial
institution actually conforms to Islamic legal principles? In spite of the substantial body
of academic literature dealing with Islamic banking and finance from economic, political
and legal perspectives, these questions, intriguing for any practitioner involved in the
structuring and drafting of Islamic financing agreements, has not received much
attention so far. Furthermore, there is only very little accessible case law related to
Islamic financing transactions. Recently, however, a dramatic change seems to have
taken place.
Following the decision of the London High Court in Islamic Investment Company of the
Gulf (Bahamas) Ltd. v. Symphony Gems N.V. & Ors.,
1
the present decision of the Court of
Appeal, Shamil Bank of Bahrain v. Beximco Pharmaceuticals and Others, is the second case
in which the English courts were concerned with a murbaha style financing agreement.
BothSymphony Gems and Beximco testify to a globalisation of Islamic financing techniques,
* Dr. Killian Blz, LL.M., Dipl. MES, is a partner of the law firm Gleiss Lutz in Frankfurt/Main.
He studied law and Middle East studies at the universities of Freiburg, Berlin, Damascus,
Cairo (AUC) and London (SOAS).
1 For a discussion of the case see Blz, A murbaha transaction in an English court, Islamic Law
and Society 11 (2004) in print.
510
which are no longer confined to the original strongholds of Islamic finance in the
Middle East and South Asia. In both cases, the parties had determined the London
High Court as the venue and as a consequence the question arose if and to what extent
an English court may decide on whether an Islamic financing transaction actually
conforms to the principles of Islamic law.
Islamic financial institutions employ various techniques to assure their customers
that their dealings are Islamic (and generate thereby the Islamic legitimacy on which
their business model is based on). On the institutional level, most Islamic financial
institutions have a so-called sharia board, a special corporate body consisting of sharia
scholars, who are entrusted with advising the institutions management as regards Islamic
questions and determining whether the business transacted complies with sharia
principles.
2
The Islamic orientation of the financial institution thus is reflected by a special
corporate governance arrangement that is typical of Islamic financial institutions,
complementing the banking expertise of the management with the sharia expertise of
selected Islamic scholars. Sharia boards normally issue an annual certificate, in language
and style similar to that rendered by a chartered accountant, certifying that the
transactions of the institution in the time period under scrutiny all comply with Islamic
legal principles. This certificate then is disseminated in marketing materials and
displayed on the institutions web page. In addition, and from a legal perspective more
significantly, some Islamic financial institutions also include a reference to Islamic legal
principles in the agreements itself.
3
In the latter case, the Islamic orientation of the
transaction is not merely expressed through a general policy statement in the institutions
articles of association and a use of Islamic contractual structures. The claim to abide by
Islamic legal principles is also expressed through a choice of law clause determining
Islamic law as the proper law of the contract. Such an approach most clearly reflects
the business policy of Islamic financial institutions being guided by and dealing in
accordance with the Islamic sharia. In view thereof, it is only consistent to include a
provision in the agreement providing for a choice of Islamic law.
If and to the extent the parties can validly agree on Islamic law as the governing law
of a financial transaction is a question which has not been fully resolved so far.
4
In view
of the interpretative pluralism in Islamic law, both past and present, and the extended
controversies regarding financial innovations among Islamic scholars, it seems a difficult
if not impossible task for any court to come up with an interpretation of Islamic law
that will satisfy all circles concerned. Moreover, as far as English private international
law is concerned, it is questionable whether the parties can validly opt for a choice of
law other than that of a particular state jurisdiction. This approach is also shared by
most other jurisdictions which are signatories to the Rome Convention (1980). Pursuant
to the predominant opinion, it is not permissible to choose the lex mercatoria or another
set of non-national rules to govern the contract. Instead, it is only permissible to opt
2 On function and functioning of the Sharia Boards see, e.g., Mohd Daud Bakar, The Sharia
supervisory board and issues of Sharia rulings and their harmonisation in Islamic banking
and finance, in: Simon Archer and Rifaat Abdel Karim, Islamic Finance: Innovation and Growth
(London: Euromoney Books, 2002), pp. 74-89.
3 For a discussion of such clauses see Frank E. Vogel and Samuel L. Hayes, III, Islamic Law and
Finance. Religion, Risk and Return (The Hague/London/Boston: Kluwer Law International,
1998) pp. 50-52.
4 See the discussion in Kilian Blz,Islamic Law as the Governing Law under the Rome
Convention: Universalist Lex Mercatoria v. the Regional Unification of Laws, Yearbook of Islamic
and Middle Eastern Laws 8 (2001-2002) pp. 73-85.
5 For the English approach, see Cheshire and Norths Private International Law, 13th edn. (1999),
p. 559; Dicey and Morris, The Conflict of Laws, 13th ed. (2000) no. 32-079; for a comparative
discussion see Blz (n. 4) pp. 80-81.
Selected Cases
511
for the law of a particular country to govern the contract.
5
This also prevents a choice
of the Islamic sharia as governing law, understood as the choice of the historic legal
order of Islam (as opposed to a choice of the principles of Islamic law as applied in a
particular Muslim country today).
In the case at hand, the choice of law clause provided that: Subject to the Principles
of the Glorious Sharia, this Agreement shall be governed by and construed in accordance
with the laws of England. This contractual clause admittedly is not free of ambiguities.
It can, however, be construed to imply a choice of both English and Islamic law as the
proper law of the contract (or at least be understood to incorporate the principles of
Islamic law into the agreement which, for the rest, is governed by English law). If this
understanding is correct, the enforceability of the agreement also depends on its
compliance with Islamic legal principles. This raises the question of whether the
reference to Islamic law is of legal relevance at all and, if this is so, how the Court shall
determine the applicable principles.
Both the London High Court and the Court of Appeal in the end, however, declined
to give any legal effect to the reference to Islamic law contained in the agreement.
First, it was argued that pursuant to applicable conflict rules the choice of any non-
national legal order such as the sharia was irrelevant, as the Rome Convention only
permitted to submit the contract to the law of a particular country. Second, and maybe
more importantly, the Court also decided against an incorporation of Islamic legal
principles into the contract (being governed by English law). The doctrine of
incorporation is acknowledged in English law
6
and it is thus possible to make foreign
legal principles part of an English law agreement. Such an incorporation, the Court
held, however, requires that reference is made to a specific black letter rule (be it of
a foreign legal order or of a set of international principles) in order to incorporate the
respective provision into the agreement. The reference to the Glorious Sharia, so the
Court held, was too vague to have any legal meaning. In view of the interpretative
pluralism in Islamic law it would be an impossible task for the Court to determine the
applicable principles.
Furthermore, the Court argued that it is doubtful whether the parties intended to
confer the authority to decide such questions on an English court. The Court supported
this interpretation by arguing that the parties, being fully aware of the economic realities
of the transaction, could not possibly have intended wilfully to subject the agreement
to legal rules invalidating the transaction. As a result, the Court declined to get involved
with the interpretation of sharia principles which, upon a strict application, may well
have resulted in sincere doubts as to the validity of the transaction at hand. Instead, the
court interpreted the agreement on an application of English legal principles only,
confirming the validity of the agreement from the perspective of English law, but not
opining on it from the view point of the Islamic sharia. The latter task, thus, is left to
the Islamic financial community.
The Beximco case was received as a landmark decision in the international Islamic
banking community. The choice of English law is widespread in Islamic financing
transactions and the London High Court is a popular venue for international banking
disputes. Following the decisions in Symphony Gems and Beximco, it seems safe to conclude
that, if properly documented, a murbaha agreement is enforceable in an English court,
at least if and to the extent it is governed by English law.
6 See, e.g. the discusion in Dicey and Morris (supra n. 5) at no. 32-079.
512
Shamil Bank of Bahrain v.
Beximco Pharmaceuticals and Others
Neutral Citation No: [2004] EWCA Civ 19
IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL
(CIVIL DIVISION) ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION (MORISON J)
Before :
LORD JUSTICE POTTER, LORD JUSTICE LAWS
and LADY JUSTICE ARDEN
Lord Justice Potter:
Introduction
(1) This is an appeal from the judgment of Mr. Justice Morison dated 1 August 2003
whereby he gave summary judgment in favour of the claimant Shamil Bank of
Bahrain EC (the Bank) against the first and second defendants as principal debtors
in respect of monies advanced to them by the Bank under various financing
agreements and against the third, fourth and fifth defendants as guarantors of
certain of those agreements. The total judgment sum awarded was some U.S.
$49.7million. The appellants were refused permission to appeal by Morison J., but
permission was granted by Clarke L.J. on 17 September 2003 in relation to a single
issue relating to the construction and effect of the form of the governing law clause
contained in the financing agreements. That clause reads as follows:
Subject to the principles of the Glorious Sharia, this Agreement shall be governed by and
construed in accordance with the laws of England.
(2) It is not in dispute that the principles of the Glorious Sharia referred to are the
principles described by the defendants expert, Mr Justice (retd) Khalil-Ur-Rehmam
Khan as:
the law laid down by the Quran, which is the holy book of Islam, and the Sunnah (the
sayings, teachings and actions of Prophet Mohammad (pbuh)). These are the principal
sources of the Sharia. The Sunnah is the most important source of the Islamic faith after the
Quran and refers essentially to the Prophets example as indicated by the practice of the
faith. The only way to know the Sunnah is through the collection of Ahadith, which consists
of reports about the sayings, deeds and reactions of the Prophet . . .
(3) One principle expressly stated in the Quran and Sunnah is that the charging of
interest upon a loan, in whatever form, is Riba and is contrary to the sharia. At
Sura II, 275-79 of the Quran it is stated that:
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513
. . . Allah has made buying and selling lawful and has made the taking of interest unlawful.
Remember, therefore, that he who desists because of the admonition that has come to him
from his Lord, may retain what he has received in the past; and his affair is committed to
Allah. But those who revert to the practice, they are the inmates of the fire; therein shall they
abide. . . . O Ye who believe, be mindful of your duty to Allah and relinquish your claim to
what remains of interest, if you are truly believers. But if you do not, then beware of war from
the side of Allah and his Messenger. If, however, you desist, you will still have your capital
sums; thus you will commit no wrong, nor suffer any wrong yourself.
Sura III, 130 states that:
O Ye who believe, devour not interest, for it goes on multiplying itself; and be mindful of
your obligation to Allah that you may prosper.
The Quran, translated by Muhammad Zafrulla Khan, Curzon Press, 1971.
Factual Background
(4) The bank is incorporated under the laws of Bahrain and licensed to act as a bank
by the Ministry of Commerce and Bahrain Monetary Agency. The Kingdom of
Bahrain is a constitutional monarchy and 95 per cent of its population are Muslims.
Nonetheless, while embracing and encouraging Islamic banking practice as a
national policy, the principles of Islamic law, in particular the prohibition of Riba,
have not been incorporated into the commercial law of Bahrain and there is an
absence of any legal prescription as to what does and does not constitute Islamic
banking or finance. In his survey of the commercial laws of the Arab Middle East,
Professor Ballantyne states that:
In our other jurisdictions, banking interest is, in practice, tolerated (Saudi Arabia) and even
sanctioned by banking laws (Bahrain, Qatar and Oman), while any theoretical or hypothetical
conflicts have been largely ignored.
W M Ballantyne: Commercial Law in the Arab Middle East: the Gulf States (1986) p.133
(5) The unchallenged position as far as the charging of interest in Bahrain is concerned
is that stated in Unlawful Gain and Legitimate Profit in Islamic Law: Nabil Saleh (2nd
ed) p. 9:
The matter of interest is regulated as far as commercial transactions are concerned by the
provisions of Article 81 of the Commercial Code of 1987. The latest amendment of Article
81, affected by Law no.4 of 1992, gives the following instructions to courts: (1) interest on
overdue payments of commercial debts becomes due by the mere occurrence of maturity
dates unless otherwise provided for by law or agreement. (2) Under no circumstances, and
with regard to debts whose settlement does not exceed a period of seven years, may the
aggregate amount of interest paid to the creditor exceed the initial indebtedness. (3) The
provisions of the preceding (2) do not apply to debts which were contracted in foreign
currencies. (4) The creditor is entitled to claim complementary damages in addition to
interest on overdue payments with no need to prove that the additional damage was caused
by the debtors fraud or his serious fault.
(6) Nonetheless, the Bank holds itself out as applying Islamic principles in the course
of its business. The Banks full title is Shamil Bank of Bahrain E.C. (Islamic
Bankers). The main objects clause in its Memorandum of Association is in general
terms:
3. Notwithstanding the provisions of this Article, the company shall undertake at all times to
comply with the Bahrain Monetary Agency Law and any circulars, rules or regulations issued
by the BMA from time to time . . . According to the above, the company will carry on all
banking, investment, financial activities, offshore units and all services relating thereto of
various commercial, industrial, agricultural, real estate, tourism, housing and other services
in the State of Bahrain and outside it.
514
However, clause 34 of the Articles of Association provide for the Ordinary General
Meeting to elect and appoint a Religious Supervisory Board which shall comprise
at least three persons who are recognised specialists and qualified in Islamic
jurisprudence, religious provisions and Islamic economy.
(7) Clauses 35 and 36 of the Articles provide:
35.a. The Religious Supervisory Board shall ascertain that the Companys investments and
activities (and the activities of its subsidiary and affiliated companies) conform with the
principles and provisions of Islamic Sharia. It shall, in particular, discuss with the members
of the Board of Directors, managers of the Company or of any subsidiary or affiliated
company under its control, such conformity and the business carried out by them and
shall request any information it deems necessary. In particular, the Religious Supervisory
Board shall adopt all the crucial decisions for applying the provisions of Islamic Sharia to
ensure the realisation of the objects for which the company was incorporated. Also to
ensure that the members of the Board of Directors, managers and employees are
coordinating their activities according to such decisions which will be binding on all the
shareholders. The Religious Supervisory Board shall within six months from the end of
the Companys financial year, submit a written report stating that it fulfilled the obligations
indicated herein and ascertained that the Companys investments and business activities
(including its subsidiary companies) conform with the provisions of Islamic Sharia.
36. The Board of Directors shall take the necessary actions to ensure that all the investments
and other business transactions have been referred to the Religious Supervisory Board for
approval before carrying out any other business transactions by the Company or by any
subsidiary or affiliate company under its control.
(8) As made clear by the Banks expert witness, provisions of this kind are not unusual.
In the absence of legal prescription as to what does and what does not constitute
Islamic banking or finance, most Islamic banks create Religious or sharia
Supervisory Boards which review annually the operations of the bank and
determine whether or not these have been carried out in accordance with Islamic
law. They examine on a test basis each type of transaction entered into by the
Bank and evidence to show that the transaction and dealings entered into by the
Bank are in compliance with sharia rules and principles, submitting an annual
report to the shareholders in that respect. In this case the Banks own Religious
Supervisory Board certified in respect of the years 1995 and 1996 that:
The Board believes that all the banks business throughout the said year, including
investment activities and banking services, were in full compliance with Glorious Islamic
Sharia.
(9) A certificate of compliance was also issued for that period by the Banks auditors,
reviewing the Banks operation on the basis of the Financial Accounting Standards
issued by the Accounting and Auditing Organisation for Islamic Financial
Institutions.
(10) Until their defences were filed in this action, the appellants had never given any
indication to the bank that they were dissatisfied on religious grounds with the
arrangements agreed between the parties or that they sought to challenge them
on the grounds that they did not comply with the principles of sharia.
(11) The first two defendants are Bangladeshi companies (part of the Beximco group)
involved in the manufacture, export and import of pharmaceuticals. The third
and fourth defendants are directors of the first and second defendants and of
the fifth defendant which is their parent company. I shall refer to the third, fourth
and fifth defendants collectively as the guarantors.
(12) In 1995 the Beximco group wished to raise additional working capital to be used
in its commercial activities. To this end, there were meetings between the Bank
and, principally, Mr Chowdhury, the Beximco Group Director of Finance and a
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515
director of the first and second defendants. The monies were advanced pursuant
to the terms of two Morabaha Financing Agreements which, in form, related to
the sale of goods.
(13) It is not in dispute that a Morabaha agreement is a sale contract recognised as
valid by Islamic law whereby the seller (the financier institution) agrees to purchase
goods desired by the buyer and to sell them to the buyer (the client) for a deferred
price, the difference between the original purchase price to be paid by the
financier and the deferred price payable by the client being a stated profit known
to and agreed upon by both seller and buyer. In order to avoid the appearance or
characteristics of a loan at interest and to provide for and preserve the features of
a contract of sale, the financier purchases the goods in its own name, and the
goods must come into its possession (actual or constructive), remaining at its risk
until the commodity is sold to the client. However, for that purpose the financier
may appoint the client as agent for the purchase on behalf of the financier and,
once the client effects such purchase as the agent of the financier, the client may
retain possession of the commodity on its own behalf. The detailed form and
content of Morabaha agreements varies. There are no standard forms and, in
practice, the detailed terms and conditions will be agreed by the bank and its
customer around the essential characteristics I have mentioned. It is the function
of an Islamic banks Religious Supervisory Board to ensure that the Morabaha
agreement complies with Islamic law as interpreted by the Religious Supervisory
Board.
(14) Following negotiations in which each side was advised, the Bank and the first and
second defendants entered into a Morabaha Financing Agreement dated 28
December 1995 (the 1995 Morabaha Agreement) under which, pursuant to
clauses 2.1, 2.2 and 4.2, the Bank agreed to purchase, through the second
defendant acting as its agent, certain goods from specified sellers for immediate
onward sale to the first defendant. In return, pursuant to clause 2.1, the first
defendant agreed to pay to the Bank the Morabaha price, defined in the agreement
as the aggregate of the purchase price of goods purchased plus the Profit Element,
calculated by reference to clause 2 of a Market Rate Agreement also entered into
between the parties. Pursuant to clause 4.5 of the Morabaha Agreement, the
payments to be made were set out in a letter from the Bank to the defendants
dated 28 December 1995 (the 1995 Payment Schedule Letter). Pursuant to
clause 3 of the 1995 Market Rate Agreement, if any payment due remained unpaid
for any period after its due date, compensation would be payable to the Bank.
(15) In accordance with clause 4.1 of the 1995 Morabaha Agreement, the Bank
advanced to the second defendant U.S.$15 million, ostensibly for the purposes
of purchasing the specified goods. Between 28 March 1996 and 28 September
1997, the first defendant made seven payments in accordance with the 1995
Payment Schedule Letter.
(16) In April 1996, following an approach by the second defendant seeking further
funds, the Bank agreed to advance the second defendant a further sum of
U.S.$15 million. On 11 July 1996 the Bank and the first and second defendants
entered into a further Morabaha Agreement (the 1996 Morabaha Agreement)
and Market Rate Agreement in terms similar to those of the 1995 Agreements.
(17) In accordance with clause 4.1 of the 1996 Morabaha Agreement, on 15 July 1996,
the Bank paid to the first defendant U.S.$15 million ostensibly for the purpose of
purchasing the specified goods. Between 15 October 1996 and 12 August 1997,
the second defendant made four payments in accordance with the 1996 payment
schedule letter.
(18) By December 1999 the first and second defendants had not paid the amounts
due under the 1995 and 1996 Morabaha Agreements, although admitting and
516
agreeing in writing that such sums were owed. Following negotiations, the Bank
and the first and second defendants agreed to enter into new agreements to
discharge the first and second defendants obligations in exchange for the first
and second defendants undertaking alternative obligations to the Bank which
the third, fourth and fifth defendants were to guarantee.
(19) On 14 September 1999 the Bank and the first and second defendants entered
into two Exchange in Satisfaction and User Agreements, one relating to the 1995
Morabaha Agreement (the First ESUA) and the other relating to the 1996
Morabaha Agreement (the Second ESUA) which were each subsequently
amended and restated by agreement on 4 February 2001 and 30 January 2002.
The re-amended ESUAs became effective on 4 April 2002. Under clause 2.1 of
the ESUAs the Bank agreed to discharge on the Effective Date the amount then
outstanding under the 1995 and 1996 Morabaha Agreements in exchange for
being granted the right to receive unencumbered title to certain assets. Pursuant
to clauses 3.1 and 3.3, the Bank agreed to grant the first and second defendants
the right to use those assets in the ordinary course of their respective businesses
in consideration for payment by instalments of a user fee determined in
accordance with clause 3.4. The first and second defendants were also obliged to
make certain payments of accrued compensation. Under clause 4.1 of the ESUAs,
it was a condition precedent that the third, fourth and fifth defendants guaranteed
the first and second defendants obligations under the ESUAs.
(20) The form of the ESUAs, whereby the Bank, having acquired the ownership of the
first and second defendants assets, permitted their retention and use in return
for regular payment of the scheduled user fees was in principle a method of
financing recognised as legitimate by the sharia as Ijarah, the giving of something
in rent. However, when that method of financing is adopted by a bank in place of
a simple interest-bearing loan, the question of whether the transaction is legitimate
according to the principles of sharia depends upon an analysis of the particular
terms and conditions of the agreement and may prove controversial.
(21) In this case, various defaults and Termination Events provided for under the
ESUAs occurred and, as the Bank was entitled to do, it sent two default letters
dated 18 August 2002 to the defendants under the terms of the first and second
ESUAs in respect of the sums subsequently claimed in this action.
The Banks claims against the first and second defendants
(22) The Banks claims against the first and second defendants are made up as follows:
(1) U.S.$25,207,000 being the amount due under the first ESUA relating to the
1995 Morabaha Agreement;
(2) U.S.$21,472,800 being the amount due under the second ESUA relating to
the 1996 Morabaha Agreement;
(3) U.S.$1,147,540.76 being accrued compensation due under clause 4.2.4 of
the first ESUA;
(4) U.S.$1,884,169.75 being accrued compensation due under clause 4.2.4 of
the second ESUA.
The Banks claims against the guarantors
(23) On 6 February 2001 the Bank and the third and fourth defendants entered into
two personal guarantees, one relating to the first ESUA and one relating to the
second ESUA (the personal guarantees). On the same date the Bank and the
fifth defendant entered into two corporate guarantees, one relating to the first
ESUA and one relating to the second ESUA (the corporate guarantees). The
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guarantees were all in materially similar terms. Each states that it is governed by
and shall be construed in accordance with English law, with provision also for
the jurisdiction of the English courts. There is no reference to the principles of
sharia.
(24) Each guarantee recites the relevant Morabaha financing agreement, the
Outstanding amount pursuant thereto and the relevant ESUA Agreement as
amended.
(25) The relevant provisions of the guarantee for the purposes of this appeal are as
follows:
2.1 Covenant to pay
In consideration of Shamil agreeing to discharge the Outstanding Amount in return
for being granted the right to acquire title to the Assets and Shamil permitting Beximco
and BEIC to use the Assets in return for the User Fee pursuant to the Exchange
Agreement [i.e. the ESUA] the guarantor hereby guarantees to Shamil Beximco and
BEICs obligation to transfer title to the Assets to Shamil and guarantee to pay to Shamil,
on demand by Shamil, the User Fee and all monies and discharge all obligations and
liabilities now or hereafter due, owing or incurred by Beximco and BEIC (or either of
them as the case may be) to Shamil under or pursuant to the Exchange Agreement
and the other New Transaction Documents when the same become due for payment
or discharge whether by acceleration or otherwise, and whether such monies,
obligations or liabilities are express or implied, present, future or contingent, joint or
several, incurred as principal or surety, originally owing to Shamil or purchased or
otherwise acquired by it, denominated in Dollars or in any other currency, or incurred
on a banking account or any other manner whatsoever . . .
2.2 Guarantor as principal debtor; indemnity
As a separate and independent stipulation, the Guarantor agrees that if any purported
obligation or liability of Beximco and/or BEIC (as the case may be) which would have
been the subject of this Guarantee had it been valid and enforceable is not or ceases to
be valid or enforceable against Beximco and/or BEIC (as the case may be) on any
ground whatsoever whether or not known to Shamil (including, without limitation,
any irregular exercise or absence of any corporate power or lack of authority of, or
breach of duty by, any person purporting to act on behalf of Beximco and/or BEIC (as
the case may be) or any legal or other limitation . . . the Guarantor shall nevertheless
be liable to Shamil in respect of that purported obligation or liability as if the same
were fully valid and enforceable and the Guarantor were the principal debtor in respect
thereof . . .
(26) The Bank claims against each of the guarantors the same sums as are claimed
against the debtors as set out in paragraph 22 above.
The issues on this appeal
(27) A number of defences were advanced by the defendants before the judge below,
certain of which were regarded by the judge as having the hallmarks of trumped-
up defences designed to avoid or delay payment. However, the principal defence
advanced was that (a) on a true construction of the governing law clause quoted
in paragraph 1 of this judgment, the Morabaha Agreements and the ESUAs were
only enforceable insofar as they were valid and enforceable both (i) in accordance
with the principles of the sharia (i.e. the rules or laws of Islam) and (ii) in
accordance with English law; (b) in fact, the agreements were unlawful, invalid
and unenforceable under the principles of the sharia in that, despite their form
as Morabaha Agreements, in the case of the 1995 and 1996 Morabaha Agreements,
and as Ijarah leases, in the case of the first and second ESUAs, (which would be
enforceable if they were a true reflection of the underlying transaction) the
transactions were in truth disguised loans at interest. As such they amounted to
unlawful agreements to pay Riba and were thus void and/or unenforceable.
518
(28) In this connection it was stated in the witness statement of Mr Choudhury for the
defendants that he made it clear that the monies sought from the Bank by the
first and second defendants were required as working capital for the Beximco
group and that it was the Bank which required that the transaction be structured
in the forms adopted in order to comply with sharia law. The fourth defendant,
as a director of the first, second and fifth defendants and a personal guarantor
of the ESUAs, stated that:
. . . it is not uncommon for banks, in their enthusiasm to make profitable loans, to use a
Morabaha Agreement to disguise what is, as a matter of commercial reality, an interest-
bearing loan. That is precisely what happened in the present case and both the Claimant
and the Defendants were quite content that this should happen. Neither was under any
illusion as to the commercial realities of the transactions, and the claimant was happy to
dress the loan transactions up as Morabaha sales (or Ijarah leases), whilst taking no interest
in whether the proper formalities of such a sale or lease were actually complied with.
(29) The rival expert evidence as to the validity of the agreements under Islamic law
was as follows. The Banks expert, Dr. Lau, the former director of the Centre of
Islamic and Middle Eastern Law, stated that the precise scope and content of
Islamic law in general, and Islamic banking in particular, are marked by a degree
of controversy within the Islamic world, best exemplified by the fact that the
actual practice of Islamic banking differs widely within the Islamic world. Even
within particular jurisdictions such as Pakistan, which are committed and
constitutionally obliged to introduce Islamic financial systems, the issue is subject
to ongoing debate and a high degree of uncertainty. In the absence of any
agreement on the boundaries of Islamic banking or, indeed, on what ought to
be the precise ingredients of a Morabaha agreement, it is in practice up to
individual banks to determine the issue. In the absence of any legal prescription
as to what does and what does not constitute Islamic banking or finance, most
Islamic banks, including those in Bahrain, seek the advice of Islamic scholars
who examine and approve particular agreements and forms of agreement, the
role of the Religious Supervisory Committee being to formulate the banks
interpretation of the sharia.
(30) Strictly interpreted, the Glorious Sharia refers to the divine law as contained in
the Quran and Sunnah. However, most of the classical Islamic law on financial
transactions is not contained as rules or law in the Quran and Sunnah but is
based on the often divergent views held by established schools of law formed in a
period roughly between 700 and 850 CE. The particular form and content of
Morabaha agreements varies. If a banks Religious Supervisory Board is satisfied
that the banks activities are in accordance with sharia law, that concludes the
matter, there being no provision in Bahrain law, or Islamic law generally, for an
appeal by a customer of the bank against the Boards rulings and certifications.
Finally, even if the relevant agreements amounted to agreements to pay Riba, the
principal sums advanced could be validly claimed.
(31) Dr. Laus conclusion was that the concern of the defendants that the sums
advanced were not used to purchase the goods and/or equipment, the subject of
the 1995 and 1996 Morabaha Agreements, but rather as part of the general
working capital of the first and second defendants, was of no relevance to the
question whether or not the Morabaha agreements complied with Islamic law.
He stated:
In my opinion for the Morabaha Agreements to be in accordance with Islamic law all that
is required is that they are certified as such by Shamil Banks Religious Supervisory Board
and the principal amounts are dispensed in accordance the terms of the 1995 and 1996
Morabaha Agreements.
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(32) The position of the defendants expert, Mr Justice Khan, former chairman of the
Sharia Appellate Bench of the Supreme Court of Pakistan, shortly stated was as
follows. He acknowledged that:
wherever a question of interpretation of the principles contained in the Quran and Sunnah
is involved, the application of the rules of Sharia has and will continue to give rise to
disputes between different jurists.
He also did not contradict the assertion of Dr. Lau that most of the classical
Islamic law on financial transactions was not to be found in the Quran and
Sunnah. However, he made clear (as Dr. Lau did not dispute) that the injunction
against the payment of Riba is contained in both those holy books and that it is
uncontroversial that under Islamic law interest charged on loans by banks is Riba
and prohibited. Equally, any agreement in which, in substance, interest is being
charged upon a loan is unlawful, void and unenforceable.
(33) Mr Justice Khan acknowledged that the sharia recognises two modes of financing
as permissible, namely Morabaha and Ijarah agreements, but asserted that, for
such transactions to be valid, the requirements prescribed and provided for
in the agreement must be fulfilled, failing which the transaction as a whole will
be void according to the principles and rules of sharia. On the basis of the
(uncontradicted) assertion of the defendants that the advances were never applied
or intended to be applied in the purchase or lease of any property, the relevant
agreements were void. The ESUAs were similarly void and unenforceable on the
basis of a number of arguments advanced, the principal one of which was that,
irrespective of their form as purported Ijarah leases of assets, the ESUAs simply
constituted a rescheduling or roll-over of the 1995 and 1996 Morabaha
Agreements, the bank charging interest or an additional amount over and above
the sums due in consideration of the giving of time. This too was Riba and
accordingly prohibited and void.
(34) Finally, so far as the position of the Banks Religious Supervisory Board was
concerned, Mr Justice Khan stated that certification by the Board that the
operations of the Bank were according to the sharia would not be a decision
binding on any court dealing with the dispute under the law of sharia. The dispute
would fall to be resolved by the court in the light of its own view of the position
under sharia law. In any event there was no evidence that the Board had had
knowledge of, nor was it required to approve, the particular transaction in this
case, its function being one of overall supervision and approval of the methods
and procedures adopted by the bank in the course of its business.
(35) So far as the liability of the guarantors was concerned, two arguments were
advanced before the judge which are of relevance to this appeal. The first was
simply that, under the general law of guarantee, if the principal debtor was
discharged from liability in respect of the obligations guaranteed, then the
guarantors were similarly discharged.
(36) The second defence raised was that the guarantees had been entered into by the
parties on the basis of a common mistake of a fundamental nature, namely that
the first and second defendants were under enforceable obligations to the Bank
under the Morabaha agreements at the time when, and in respect of which, the
ESUAs and guarantees were entered into.
520
The decision of Morison J.
(37) The paragraph numbers referred to in this section reflect the numbered
paragraphs of the judgment of Morison J.
(38) The judge held, and it is accepted by the Bank on this appeal, that if, on a proper
construction of the applicable law clause, the court is obliged to concern itself
with the application of sharia law and its impact on the lawfulness of the
agreements, it is arguable which of the two parties experts was right and that it
would offend the principles underlying CPR Part 24 to seek to resolve the conflict
between them before a trial. That is so not only in respect of the recoverability of
sums which were effectively interest upon the capital sums advanced, but also of
the capital sums themselves (paras. 45 and 46).
(39) However the judge concluded that, on the proper construction of the applicable
law clause, he was not concerned with the principles of sharia at all for the
following reasons.
(40) First, it was common ground by concession that there could not be two separate
systems of law governing the contract (para. 43). Yet, by contending that sharia
law and not English law would determine the enforceability of the agreement,
the appellants were in substance contending that the agreements were governed
both by English and sharia law (para. 48). The judge declined to construe the
wording of the clause as a choice of sharia law as the governing law for the
following reasons. First, Article 3.1 of the Rome Convention (which by s.2(1) of
the Contracts (Applicable Law) Act 1990 has the force of law in the United
Kingdom) contemplates that a contract shall be governed by the law chosen by
the parties and Article 1.1 of the Rome Convention makes it clear that the
reference to the parties choice of the law to govern a contract is a reference to
the law of a country. There is no provision for the choice or application of a non-
national system of law such as sharia law (paras. 39, 48 and 51). In any event, the
principles of the sharia are not simply principles of law but principles which
apply to other aspects of life and behaviour (para. 53). Even treating the principles
of sharia as principles of law, the application of such principles in relation to
matters of commerce and banking were plainly matters of controversy (paras. 49
and 53). In particular there is controversy as to the strictness with which principles
of sharia law will be interpreted or applied. In consequence it was highly
improbable that the parties to the agreements intended an English court to
determine any dispute as to the nature or application of such controversial
religious principles which would involve it in the task of deciding between opposing
points of view which themselves might be based on geopolitical and particular
religious beliefs (paras. 49-54).
(41) The judge accepted the submission of the Bank that the words subject to the
principles of Glorious Sharia were no more than a reference to the fact that the
Bank purported to conduct all its affairs according to the principles of sharia.
However, in respect of what those principles were and their effect upon the
contract, the judge concluded the relevant part of his judgment as follows:
54. Whilst in one sense this court will answer any question posed to it, however difficult,
it is improbable in the extreme, that the parties were truly asking this court to get into
matters of Islamic religion and orthodoxy. This is especially so when the bank has its
own religious Board to monitor the compliance of the bank with the Boards own
perception of Islamic principles of law in an international banking context.
5. So far as the bank was concerned, that is likely to have been sufficient for its own
regulatory purposes but there is no suggestion that the defendants were in any way
concerned about the principles of Sharia law either at the time the agreement was
made or at any time before the proceedings were started. The Sharia law defence is, I
think, a lawyers construct, but for the reasons I have given, in my view it does not work.
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The submissions of the appellants
(42) Before this court, Mr. Hacker QC for the appellants has not resiled from his
concession that there can only be one governing law of the agreements. He
accepts, and indeed asserts that it was his case below, that the governing law is
English law and English law alone. However, he submits that this does not preclude
the possibility that the principles of sharia have relevance. He submits that what
all the parties have done is to choose English law as the governing law but, at the
same time to stipulate as a condition precedent that the contract is only to be
enforceable insofar as it is consistent with the principles of sharia, which principles
amount to legal rules ascertainable and applicable by an English court. He submits
that that is something different from an assertion that sharia law governs the
agreements.
(43) Mr. Hacker accepts that the Rome Convention precludes the choice of sharia, as
a governing law, being concerned only with a potential choice between the laws
of different countries. However, he submits that the construction of the governing
law clause for which he contends produces a result no different from the
incorporation by reference of a codified system of rules, such as the Hague Rules
or the Warsaw Convention, into a contract governed by English law, c.f. Nea Agrex
SA v. Baltic Shipping Co Ltd. [1976] 1 Q.B. 933 (C.A.) in which this court rejected
the conclusion of Donaldson J. at first instance that a paramount clause provision
was to be treated as ineffective to incorporate the Hague Rules into a charterparty.
He submits that such a construction is fully consistent with the banks self-
proclaimed mode of business as an Islamic bank carrying on an Islamic banking
business.
(44) Mr. Hacker submits that, contrary to the view of the judge, it is neither unusual
nor improbable that the parties to the contract should intend the English court
to determine and apply the sharia nor, as he submits, is the English court ill-
equipped to do so when assisted by expert evidence, in which respect he refers to
the decision of Moore-Bick J. in Glencore International A.G. v. Metro Trading
International Inc. [2001] 1 Lloyds Law Rep. 284 at paras. 113-125 and that of Hart
J. in Al-Bassam v. Al-Bassam [2002] EWHC 2281 (Ch.).
(45) He further submits that the reasoning of the judge was influenced by an erroneous
view that the principles of sharia constituted a body of controversial religious (as
opposed to legal) principles, which view he was wrong to form on the evidence
before him. In this respect, Mr. Hacker relies heavily upon the fact that the
evidence of Mr. Justice Khan was that the principles of sharia raised in this case i.e.
the proscription of Riba and the essentials of a valid Morabaha Agreement are
not controversial. In this respect he referred us to the judgment of Tomlinson J.
in Islamic Investment Company of the Gulf (Bahamas) Ltd. v. Symphony Gems N.V.
(unreported), 13 February 2002, in which it is clear that, when giving expert
evidence in that case, Dr. Lau did not suggest that there was any difficulty in
identifying the requirements for an effective Morabaha contract under sharia
law. He therefore submits that the judges conclusion that the principles of sharia
law relevant to this case were controversial, so as to render it improbable that the
parties would have chosen the English court to resolve a dispute as to the
enforceability of the agreements, was incorrect or, at the very least, involved him
in conducting a mini-trial in relation to the parties expert evidence contrary to
the principles laid down in Swain v. Hillman [2001] 1 All E.R. 91.
522
Discussion
The Governing Law Clause
(46) The central question in this appeal is one of construction in respect of the relevant
Governing Law clause, expressly so described and couched in the short form
already quoted in para. 1 of this judgment. The task of construction is to ascertain
the presumed intention of the parties bearing in mind that:
In a commercial contract it is certainly right that the court should know the commercial
purpose of the contract and this in turn presupposes knowledge of the genesis of the
transaction, the background, the context, the market in which the parties are operating.
(per Lord Wilberforce in Reardon Smith Line Ltd v. Yngvar Hansen-Tangen [1976] 1
W.L.R. 989 at 996.)
(47) It is common ground that, when the parties entered into the Morabaha
Agreements and subsequently, neither side was under any illusion as to the
commercial realities of the transactions, namely the provision by the Bank of
working capital on terms providing for long-term repayment, and both were
content to dress the loan transactions up as Morabaha sales (or Ijarah leases),
whilst taking no interest in whether the proper formalities of such a sale or lease
were actually complied with (see para. 28 above). Nor, as Mr. Hacker expressly
accepted at the outset, was it ever intended in relation to any of the agreements
made that they should be other than binding on the parties. In those
circumstances, as it seems to me, the court, in approaching its task, should lean
against a construction which would or might defeat the commercial purpose of
the agreements. Accordingly, insofar as each of the clauses provides in clear terms
that this agreement shall be governed by and construed in accordance with the
laws of England, the proviso that such provision shall be subject to the principles
of the Glorious Sharia should be approached on a basis which is reconcilable
with the purpose evident from the words which follow, rather than operating to
defeat such purpose.
(48) It is conceded by Mr. Hacker that there cannot be two governing laws in respect
of these agreements. He further concedes that the governing law is that of
England. It seems to me that he is rightly driven to this concession. The wording
of Article 1.1 of the Rome Convention (the rules of this Convention shall apply
to contractual obligations in any situation involving a choice between the laws of
different countries.) is not on the face of it applicable to a choice between the
law of a country and a non-national system of law, such as the lex mercatoria, or
general principles of law, or as in this case, the law of sharia. Nevertheless, that
wording, taken with Article 3.1 (a contract shall be governed by the law chosen
by the parties) and the reference to choice of a foreign law in Article 3.3, make
it clear that the Convention as a whole only contemplates and sanctions the choice
of the law of a country: c.f. Dicey & Morris on The Conflict of Laws (13th ed), Vol. 2
at 32-079 (p.1223) and Briggs: The Conflict of Laws at p.159.
(49) Mr. Hacker thus opts for a construction that the wording is apt, and intended, to
incorporate into English law for the purposes of its application to the contract,
the principles of . . . Sharia. In this respect, and no doubt to avoid the difficulty
that the principles of sharia, generally stated, are of broad nature and application
(indeed they are unexplored for the purposes of this litigation), Mr. Hacker argues
that the clause should be read as incorporating simply those specific rules of
sharia which relate to interest and to the nature of Morabaha and Ijarah contracts,
thus qualifying the choice of English law as the governing law only to that extent.
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(50) In that respect, he seeks to rely upon the passage in Dicey & Morris (supra) at
para. 32-086, which expounds the distinction between reference to a foreign law
as a choice of law to govern the contract (or part of a contract) on the one hand
and incorporation of some provisions of a foreign law as a term or terms of the
contract in question. While observing that it is sometimes difficult to draw the
distinction in practice, it is there stated that:
. . . it is open to the parties to an English contract to agree e.g. that the liability of an agent
to his principal shall be determined in accordance with the relevant articles of the French
Civil Code. In such a case the foreign law becomes a source of law upon which the governing
law may draw. The effect is not to make French law the governing law of the contract but
rather to incorporate the French articles as contractual terms into an English contract.
This is a convenient shorthand alternative to setting out the French articles verbatim.
The court will then have to construe the English contract, reading into it as if they were
written into it the words of the French statute.
32-087 It often happens that statutes governing the liability of a sea carrier, such as the
former Harter Act in the United States, or statutes implementing the Hague Rules . . . are
thus incorporated in a contract governed by a law other than that of which the statute
forms part. The statute then operates not as a statute but as a set of contractual terms
agreed upon between the parties. The parties may make an express choice of one law (e.g.
English law) and then incorporate the terms of a foreign statute. In such a case the
incorporation of the foreign statute would only have effect as a matter of contract.
(51) It does not seem to me that the passage cited or the authorities referred to in the
notes thereto, assist the defendants. The doctrine of incorporation can only
sensibly operate where the parties have by the terms of their contract sufficiently
identified specific black letter provisions of a foreign law or an international
code or set of rules apt to be incorporated as terms of the relevant contract such as a
particular Article or Articles of the French Civil Code or the Hague Rules. By that
method, English law is applied as the governing law to a contract into which the
foreign rules have been incorporated. In such a case, in construing and applying
those rules, where there is ambiguity or doubt as to their ambit or effect, it may
be appropriate for the court to have regard to evidence from experts in foreign
law as to the way in which the provisions identified have been interpreted and
applied in their home jurisdiction. However, that is still only as an end to
interpretation by the English court in the course of applying English law and
rules of construction to the contract with which it is concerned. The authority of
Nea Agrex v. Baltic Shipping (supra) is no more than an illustration of this. The trial
judge had held that a reference in the contract to the incorporation of a
Paramount Clause was ineffective for uncertainty, finding that he could not say
whether the parties intended to incorporate the Hague Rules or part of the Hague
Rules or, if so, which part. However, the Court of Appeal held that the clear
meaning of Paramount Clause was that:
It brings the Hague Rules into the charterparty so as to render the voyage or voyages,
subject to the Hague Rules, so far as applicable thereto; and it makes those rules prevail
over any of the exceptions in the charterparty. The judge, however, took a different view.
He said that there are many different paramount clauses and he could not say which of
them was applicable . . .
I do not share the judges view. It seems to me that when the Paramount clause is
incorporated, without any words of qualification, it means that all the Hague Rules are
incorporated. If the parties intend only to incorporate part of the Rules (for example
Article IV), or only so far as compulsorily applicable, they say so. In the absence of any such
qualification, it seems to me that a Clause Paramount is a clause which incorporates all
the Hague Rules.
(per Lord Denning M.R. at 943G 944A)
524
(52) The general reference to principles of sharia in this case affords no reference
to, or identification of, those aspects of sharia law which are intended to be
incorporated into the contract, let alone the terms in which they are framed. It is
plainly insufficient for the defendants to contend that the basic rules of the sharia
applicable in this case are not controversial. Such basic rules are neither referred
to nor identified. Thus the reference to the principles of Sharia stand
unqualified as a reference to the body of sharia law generally. As such, they are
inevitably repugnant to the choice of English law as the law of the contract and
render the clause self-contradictory and therefore meaningless.
(53) In these circumstances, having rightly conceded that English law is the governing
law of the contract, Mr. Hacker is left with little room for manoeuvre, save to
assert that the court should accept his submission on the basis that otherwise the
proviso to the governing law clause would be mere surplusage.
(54) I do not agree. It seems to me that there is an appropriate alternative construction,
namely that favoured by the judge, i.e. that the words are intended simply to
reflect the Islamic religious principles according to which the Bank holds itself
out as doing business rather than a system of law intended to trump the
application of English law as the law to be applied in ascertaining the liability of
the parties under the terms of the agreement. English law is a law commonly
adopted internationally as the governing law for banking and commercial
contracts, having a well-known and well-developed jurisprudence in that respect
which is not open to doubt or disputation on the basis of religious or philosophical
principle. I share the judges view that, having chosen English law as the governing
law, it would be both unusual and improbable for the parties to intend that the
English court should proceed to determine and apply the sharia in relation to
the legality or enforceability of the obligations clearly set out in the contract.
Reference to authority does not assist the defendants in this respect. In Glencore
International v. Metro Trading (supra) the judge was concerned with, and heard
evidence in relation to, the meaning and scope of the word ghasb
(misappropriation) as a term used but undefined in Article 1326 of the Fujairah
Civil Code which was the governing law in the case before him. As such he was
obliged to interpret and apply the term in the dispute before him, with the
assistance of rival experts in the law of Fujairah. The decision has no relevance to
this case. As to the decision in Al-Bassam (supra), the court was concerned with
sharia law as being the law which the parties agreed was the law of succession
applied in Saudi Arabia as the country of the deceaseds domicile at the date of
his death. Again, it has no relevance to this case, other than demonstrating that,
where it is clear that a particular system of law governs a dispute before the English
court, the court is obliged to apply it, with the assistance of expert evidence.
Neither case was concerned with the construction of a disputed choice of law
clause.
(55) Finally, so far as the principles of . . . Sharia are concerned, it was the evidence
of both experts that there are indeed areas of considerable controversy and
difficulty arising not only from the need to translate into propositions of modern
law texts which centuries ago were set out as religious and moral codes, but because
of the existence of a variety of schools of thought with which the court may have
to concern itself in any given case before reaching a conclusion upon the principle
or rule in dispute. The fact that there may be general consensus upon the
proscription of Riba and the essentials of a valid Morabaha agreement does no
more than indicate that, if the sharia law proviso were sufficient to incorporate
the principles of sharia law into the parties agreements, the defendants would
have been likely to succeed. However, since I would hold that the proviso is plainly
inadequate for that purpose, the validity of the contract and the defendants
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obligations thereunder fall to be decided according to English law. It is conceded
in this appeal that, if that is so, the first and second defendants are liable to the
Bank.
The guarantors liability
(56) It has necessarily been conceded that, if that is so, then the guarantors are similarly
liable. The sole point relied on in this appeal to avoid their liability is the plea
that the Bank and the guarantors entered into the guarantees on the basis of a
mutual mistake, namely that the ESUAs constituted a binding obligation on the
part of the Bank to discharge a pre-existing enforceable obligation, i.e. payment
of the outstanding amounts as defined in the ESUAs. In this connection the
guarantors rely upon the general law of guarantee and the fact that the opening
line of the covenant to pay in clause 2.1 of the guarantees expressly made clear
that they were given in consideration of the Bank agreeing to discharge the
outstanding amount under the Morabaha agreements.
(57) Although it is not necessary so to decide, I consider that the judge was correct in
his view that a common mistake as to the legal consequences of the Morabaha
agreements in this case would not qualify as a mistake apt to give rise to a defence.
(58) Mr. Hacker relies on recent authority to submit that, for the doctrine of mutual
mistake to be operative at common law, it is no longer necessary for it to be a
mistake of fact as opposed to a mere mistake of law. He relies upon the decision
of the House of Lords in Kleinwort Benson Ltd v. Lincoln City Council [1999] 1 A.C.
153, in which the House of Lords held that there is no rule that only a mistake of
fact would entitle a party to claim restitution on the grounds of mistake; also
upon the statement of the position in Chitty on Contracts (28th ed) at paragraph 5-
018 and the recent decision of Morland J. in Brennan v. Bolt Burden and others
[2003] EWHC 2493 (Q.B.) concerning the setting aside of a compromise
agreement on the grounds of mistake of law when that agreement had been
reached on the basis of a decision of the court of first instance which was
subsequently overturned by the Court of Appeal. In coming to his decision that
the agreement should be set aside, Morland J. relied upon the speeches of Lord
Goff and Lord Hoffmann in the Kleinwort Benson case at 379f and 398e-399
respectively and the paragraph in Chitty, as well as upon persuasive Commonwealth
authority. Assuming, without deciding, that the decision of Morland J. was correct,
it was nonetheless reached upon the basis that the parties common mistaken
assumption as to the law was the fundamental basis for and a precondition of
the compromise agreement, indeed its only springboard (see para. 52 of the
judgment).
(59) Before this court Mr. Hacker has submitted that the mistake as to sharia law was
properly to be regarded as a mistake of fact by analogy with the position in respect
of a mistake of foreign law: see Furness Withy (Australia) Pty Ltd. v. Metal Distributers
(U.K.) Ltd. (The Amazonia) per Dillon L.J. at 250.
(60) If that analogy is correct, it is of course necessary for the guarantors to show that
the mistake is such as to render the subject matter of the contract essentially and
radically different from the subject matter which the parties believed to exist
(per Lord Steyn in Associated Japanese Bank (International Ltd.) v. Crdit du Nord S.A.
[1989] 1 W.L.R. 255 at 268) or that it renders the thing [contracted for] essentially
different from the thing [that] it was believed to be (per Lord Atkin in Bell v.
Lever Bros Ltd [1932] A.C. 161, as adopted and confirmed by this court in Great
Peace Shipping Ltd v. Tsavliris Salvage (International) Ltd. [2002] EWCA Civ 1407
[2003] Q.B. 679). Whether the mistake asserted should rightly be regarded as a
mistake of fact or of law, it is plain to me that it is not a mistake based on a
526
common assumption fundamental to the agreements in question. In that respect,
the submissions of Mr. Hacker inevitably founder upon the factual assertions of
the defendants themselves, which demonstrate that their sole interest was to obtain
advances of funds to be used as working capital and that they were indifferent to
the form of the agreements required by the Bank or the impact of sharia law
upon their validity.
Conclusion
(61) In my view the judge was correct in the conclusion to which he came, broadly for
the reasons which he gave. I would dismiss this appeal.
Lord Justice Laws:
(62) I agree.
Lady Justice Arden:
(63) I also agree.
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Constitutional Case No. 4/2003:
Decided by the Constitutional Division of the
Supreme Court of the Republic of Yemen
Said Hasson Sohbi *
INTRODUCTION
According to the 1994 Constitution of the Republic of Yemen and the Judicature Law
No. 1/1991, the Supreme Court of the Republic of Yemen is the highest Law Court in
the country, consisting of eight Divisions or Departments as follows:
(1) Constiutional.
(2) Civil.
(3) Criminal.
(4) Commercial.
(5) Personal Status.
(6) Administrative.
(7) Military.
(8) Appeals Scrutiny.
Apart from the Constitutional Division, all the other Divisions hear and determine
appeals lodged against the judgments of the Courts below, which are the Courts of
Appeal, on questions of law. Each Division sits in a panel of five judges: a president and
four members. It is worth mentioning, at this stage, that Article No. (3) of the
Constitution provides that Islamic sharia principles shall be the source of all Laws.
The Constitutional Division is an exception in two respects: one, it has an original
jurisdiction to hear and determine appeals submitted directly to the Division against
constitutionality or otherwise of the Laws as well as appeals against the results of the
General Elections for Parliament, Regulations and Resolutions; two, it sits in a panel of
seven judges: a president (usually the President of the Supreme Court itself) and six
members.
FACTS OF CONSTITUTIONAL CASE NO. 4/2003
The plaintiffs in the Case, the Advisory Bureau of Sana a Chamber of Commerce
and Industry, were contesting the constitutionality of the Establishment of Sanitary
and Towns Improvement Fund Law No. 20/1999 and its application, in conjunction
with Local Authority Law No. 4/2000 as regards the imposition of certain fees not
provided for in the Constitution or other Laws in force. The plaintiffs have raised two
main grounds and other supplementary grounds.
* Barrister-at-Law before the Courts of the Republic of Yemen.
528
The first main ground relates to violations of the formalities of the constitutional
procedure for the passing of the said Law; while the second main ground relates to the
non-fulfilment of the pre-requisites according to the constitution for passing that
Law. The two main grounds, and the supplementary grounds, will be dealt with in
detail as follows.
The first ground
The Yemeni Constitution confers upon the President of the Republic (under Article
No. 119) the power to issue Laws, by Republican Resolutions . . . which have the force
of the Laws passed ordinarily by Parliament when Parliament is in recess, provided
that such Laws be referred to the Parliament immediately the latter reconvenes after
the recess (usually, during the Holy month of Ramadan; and during the Pilgrimage
month which is the last month in the Hijra Calendar). It is then left to Parliament
whether to approve that law in toto or to reject it, to take effect from the date of rejection
or any other date specified by Parliament itself, with provision/s for dealing with the
results ensuing from implementation before rejection. The plaintiffs contended that
although the Law which is the subject of the Case had been referred to the Parliament
immediately after it had reconvened, yet, it should have been, in addition, debated as
well as voted upon: for approval or rejection, as the case may be all steps which were
not complied with, according to the plaintiffs contention, thus rendering the said
Law unconstitutional ab initio.
The second ground
Article No. 119 of the Yemeni Constitution referred to in the first ground gives the
President of the Republic the right to issue Laws by Republican Resolutions when
Parliament is in recess, and if the subject matter to be governed by that Law is of an
urgent nature, to issue the said Law without delay. The plaintiffs contention is that this
pre-requisite has not been satisfied at all, for the urgent circumstances in the present
situation had not existed at all: especially since the Council of Ministers had not passed
a Resolution imposing fees under the Laws exception provisions after the passage of
three months and 20 days with effect from the President of the Republic issuing the
said Law by a Republican Resolution.
Supplementary grounds
The plaintiffs argued, as stated before, that there had been irregularities as regards the
formalities of the constitutional procedural provisions, in addition to the non-existence
of the requirement of the urgent circumstances provided for in Article (119) of the
Yemeni Constitution which would, otherwise, have made issuing a Law by a Republican
Resolution of the President of the Republic constitutional under the above-mentioned
Article (119). The plaintiffs, in this connection, contended that urgent circumstances
should be interpreted to mean the existences of an imminent serious danger,
threatening the State, thereby making it necessary for the State, represented by the
President of the Republic, to intervene promptly, with a specific view to countering
that imminent serious danger.
(i) Section (11) of the Law at issue is unconstitutional, for it contravenes Article
(13/b) of the Constitution.
(ii) Section (19) of the Law at issue is unconstitutional, for it contravenes Article
(13/b) of the Constitution.
(iii) Sections (123/1 & 2) and (124/1) of the Local Authority Law 4/2000 are
unconstitutional, for both sections contravene Article (13/b) of the
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529
Constitution, in addition to being a flagrant attack on private property, as well
as being inconsistent with the golden and sacred constitutional doctrine
regarding Separation of Powers provided for in Articles (62; 129; 137 and 149)
of the Constitution.
(iv) The Prime Ministers Resolution (283/2001) is unconstitutional, for sections
(3/a); (5/a); (10); and (40/d) contravene Article (13/b) of the Constitution.
THE DEFENCES OF THE STATE
(1) The defendants, the State, represented by the State Cases Sector at the Ministry
of Legal Affairs, according to the provisions of the State Cases Law 28/1992 and
Executive Regulations thereof, filed a Preliminary Objection, in which it was alleged
that the plaintiffs had no locus standi for there was, under the Chambers of
Commerce and Industry Law 18/1999, no such organ within the Sana a Chamber
of Commerce and Industry having the name Advisory Bureau and therefore the
Case should be rejected outright. The Constitutional Division received clarification
on behalf of the plaintiffs to the effect that the Retainer to the Advisory Bureau
as well as the Case had both been signed by the Legal Representative/Chairman of
the Sana a Chamber of Commerce in accordance with the power conferred upon
him by section (30) of Law 18/1999, and furthermore, both the Retainer and the
Case had been stamped with the Seal of the said Chamber of Commerce and
Industry. Henceforth, the plaintiffs were given locus standi and were entitled to
resort to the Judiciary.
(2) The House of Representatives, which is the Yemeni Parliament, is the institution
with inherent power to decide constitutionally the question whether to approve,
or otherwise to reject, the Law at issue; and the Law Courts lacked any jurisdiction
to investigate how the House performed its responsibilities.
(3) Sections (1233/1 and 2) and (124/a) of Local Authority Law 4/2000 are consistent
with Articles (13/b) as well as (120) of the Constitution, respectively.
(4) The imposition, collection, spending, amendment and exemption as regards the
fees shall be by Law (as is provided for in Article 13/ b of the Constitution). Sections
(123) and (124) of Law 4/2000 are application of the Constitutional Articles (13/
b) and (120).
(5) What has been stated in (4) above equally applies in respect of the Prime Ministers
Resolution 283/2001.
RULINGS OF THE SUPREME COURT
(1) Article (119) of the Constitution, despite the fact that it has been repealed as a
result of the 2001 Amendment to the Constitution, which had been approved by a
large majority by the people, was in force when the Law that was at issue in this
Case. That Article gave the President the right to issue Laws by Republican
Resolutions (in some countries called Laws by Presidential Decrees), when
Parliament was in recess, which Laws had the force of ordinary legislations passing
through Parliament. Parliament would be notified of the Laws when it reconvened,
after the recess by a Letter to this effect from the President of the Republic. It was
left to Parliament what to do: either to let the Members take notice of the Laws,
debate them and approve or reject them immediately; or to debate them and cast
votes at later stages. But even if Parliament had not been notified officially, it could,
upon its own initiative, carry on with the steps just mentioned. Therefore, the
plaintiffs should fail on this point.
Yemen Constitutional Case No. 4/2003
530
(2) Again, as regards Article (119) of the Constitution, before being repealed in 2001,
the question whether or nor it was necessary to issue Laws by Republican
Resolutions, by the President of the Republic during the recess of Parliament, was
a matter for the President to decide, for the Constitution gave him alone, to the
exclusion of any other State leaders, and as an exception to the ordinary or usual
formalities for passing Laws by Parliament that inherent power/right. Again, the
plaintiffs should fail on this point, as well.
(3) The State, represented by the State Cases Sector at the Ministry of Legal Affairs,
should fail on the point whether or not the plaintiffs had locus standi in the present
case: a point which has been dealt with above.
(4) However, as regards the allegations of unconstitutionality or otherwise of certain
provisions, the Supreme Court held that the taxes and fees are stated in Articles
(13 and 59) of the Constitution, and are to be imposed by Law/s, and come within
the power of the State to impose them throughout the territory of the Republic of
Yemen which become obligations to be performed by the citizens: otherwise non-
compliance would amount to an offence punishable by the Laws in force. That
being the constitutional and legal position, the Supreme Court ruled that the
Establishment of the Towns Sanitary and Improvement Funds Law, issued by the
President of the Republic, through Republican Resolution 20/1999; and its
Executive Regulations issued by the Prime Ministers Resolution 167/1999, the
Council of Ministers Resolution 167/2001; the Prime Ministers Resolution 283/
2001, come within Article (120) of the Constitution, which provides that a Law
may provide for the State Organ (such as the President of the Republic; the Council
of Ministers; the Prime Minister, or the Ministers) to issue executive regulations or
resolutions of the Laws in force. Therefore, they are not unconstitutional; and so
the contention of the plaintiffs on this point should fail.
(5) As far as sections (123/1 and 2) and (124/a) of the Local Authority Law 4/2000
are concerned, in addition to sections (2/a/11); ((5/a), (10), (38/a) and (40) of
Council of Ministers Resolution 283/2001, the Supreme Court held as follows:
(a) Sections (123/1 and 2) and (124/a) of the Local Authority Law 4/2000
deal with the Islamic Religious Tax/Zakat which is 2.5 per cent of the
income which has been earned for the past year, and which is provided for
under the Zakat Law, whereas the two provisions of the Local Authority
Law 4/2000 merely state that such Zakat would now become one of the
financial sources for the Local Councils, something consistent with the
Islamic Sharia principles stated in the Holy Quran. The same holds good
as regards the services fees provided for in sections (11/1 and 3) and (19)
of law 20/1999 at issue and which is in force due to the fact that it has been
approved, in toto, by the Parliament. Therefore, there is nothing which could
be considered unconstitutional in this respect. Therefore the contention of
the plaintiffs on these points are without any basis, and should be rejected
outright.
(b) As regards the fees imposed for removing the posters, fixed during the General
or Local Elections, after the Elections are over (Yemeni Riyals 5,000 according
to section (58/c) of the Elections/ Referendum Law 13/2001); the fees
amounting to Yemeni Riyals 1,000 for obtaining a Death Certificate, according
to section (40) of the Local Authority Law 4/2000; raising the fees to practise
the medical profession, fixed according to the Establishment of the Medical
Council Law 28/2000, as well as the Private Medical and Health Institutions
Law 60/1999, the proper course of action is absolutely not Constitutional Cases,
but rather ordinary Administrative Cases to the competent District Court. This
is because the question of providing for fees is governed by provisions in the
respective Laws: and the only allegation is in relation to the amounts raised by
Selected Cases
531
the Council of Ministers Resolution and the Prime Ministers Resolution as
discussed above.
(c) But, as far as paragraph/5 of section 123/1 of the Local Authority Law 4/
2000, as regards fees for opening shops for trade; as well as section 5 of the
Prime Ministers Resolution 283/2001 on the same subject, based upon
paragraph/5 of section 123/1 of Law 4/2000, the Supreme Court held
that both provisions were unconstitutional, due to the fact that they violated
Article (13) of the Constitution.
COMMENT OF THE AUTHOR
The Divisional Division of the Supreme Court in the Republic of Yemen has given
judgments on many Constitutional Law Cases, as regards constitutionality or otherwise
of certain Law and Regulations. It has also passed many Decisions as regards the results
of the General/Parliamentary/Presidential Elections (of 1993, 1997, 1999 and 2003)
as well as the results of the Referendum (of 2001). With all fairness, this is the best as
well as the most courageous judgment, which gives certain creditability to the Supreme
Court in the Yemen Republic, in the sense that that the Court is moving further and
further towards upholding the rule of law. Decisions are passed more speedily, without
unnecessary delays, for which the courts in Yemen have been blamed for comparatively
long periods, in addition to an unfair impression to some degree of a certain tendency
to pass too many decisions in favour of the regime. The judgment of the Supreme
Court in constitutional Case No. 4/2003 which was pronounced on 22 January 2003,
although published in the Official Gazette only recently. Never before has the Supreme
Courts Constitutional Division passed a Judgment and Reasoned Judgment declaring
certain provisions in certain Laws unconstitutional. I am of the opinion that, both the
findings and the rulings of the Constitutional Division of the Supreme Court of the
Republic of Yemen, are well-founded: both under the Articles of the Constitution, as
well as according to the provisions of the various Laws, Regulations and Resolutions
dealt with in that judgment. Furthermore, it has discussed in depth, and fairly, all the
grounds of the Case which have been raised and relied upon by the Capital/Sana a
Chamber of Commerce and Industry, and all the defences which have been raised and
relied upon by the Ministry of Legal Affairs State Cases Sector: as the Legal Representive
the Government of Yemen. This leads to some optimism, God Willing, on the future
reforms, development and modernisation of the legal and judicial system of the Republic
of Yemen, with material and technical assistance from the world community.
Yemen Constitutional Case No. 4/2003
532
Administrative law
Iraq, 210212, 399417
Libya, 242243
Morocco, 354357
Oman, 298299
Sudan, 252253
Syria, 202
Afghanistan
administration, 481482
constitutional law, 457485
fundamental rights, 461466
government, 470471
judiciary, 478481
Loya Jirga, 477
National Assembly, 471477
president, 467470
state of emergency, 482483
statehood, 458460
transitional provisions, 485
Al-Qaeda
Iraq, 10
Pakistan, 372, 373, 378
Arab League
Beirut Summit, 430
judicial cooperation, 86
Palestinian refugees, 115, 154155
Arab Peace Initiative, 449
Arbitration
see also Dispute resolution
Egypt, 182183
foreign arbitration, 8183
ICSID Convention, 8486, 262
Lebanon, 235236, 238
New York Convention, 8183
OPIC Convention, 8384
Saudi Arabia, 7986
sharia, 79
United Arab Emirates, 275
Index
Armed force
defence see Self-defence
implied authorisation, 1820
Iraq see Iraq War
UN Charter, 5, 1121
Aviation
final status agreement, 443
Lockerbie trial, 507508
Axis of evil, 5
Bahrain
commercial agents, 288
elections, 289
employment, 285287
freedom of expression, 287
legislation, 290294
media law, 287
Banking
Egypt, 192193
governing law, 511, 522525
guarantees, 516517, 525526
Lebanon, 239240
murbaha/Morabaha contracts,
509526
Oman, 300301
Saudi Arabia, 73
Shamil Bank case, 509526
sharia, 509526
sharia board, 510
Yemen, 335
Belfast/Good Friday Agreement (1998),
93
Belgium, 95
Bosnia Herzogovina, 91, 9394,
101102, 106107
Botanical products, 191
533
Canada, 128, 160
Capital markets
Oman, 301305
Saudi Arabia, 265269
Children
Iran, 48, 50, 55, 56, 342343,
347348
stateless persons, 157
Syria, 207
UK/Pakistan judicial protocol,
486487
Choice of law, 511
Christianity
Lebanon, 112114, 133
Maronites, 113, 114, 133, 159, 237
Palestinian refugees, 110, 111, 133
Citizenship
Lebanon, 110, 111, 115, 133, 146,
237
Yemen, 325
Civil law
Jordan, 218219
Lebanon, 232233
Morocco, 359363
shia, 45
Civil procedure
Jordan, 219220
Lebanon, 234235
Libya, 244
Oman, 297298
Saudi Arabia, 7475
Yemen, 328329
Commercial agents, 288
Commercial law
Bahrain, 288
Iraq, 213
Jordan, 220221
Lebanon, 238
Morocco, 363
Oman, 299308
Pakistan, 376377
Saudi Arabia, 73
Syria, 202203
Yemen, 333335
Communications see
Telecommunications
Company law
Jordan, 220
Lebanon, 238
Oman, 301305
Compensation
Dayton Agreement (1995), 102
divorce, 38, 52
population transfer, 101, 104
South Africa, 99
Constitutional law
Afghanistan, 457485
Bahrain, 288289
Egypt, 181187
Iran, 43, 50
Jordan, 217218
Lebanon, 113, 237
Pakistan, 374375
Palestine, 228229
Yemen, 315320, 527531
Contracts
Kuwait, 263
Lebanon, 233
Libya, 243
marriage, 36, 45, 47, 54
muamilat/private contracts, 39
murbaha/Morabaha, 509526
Saudi Arabia, 67, 6970
sharia, 67, 6970
Copyright
Egypt, 191
Corruption, 138, 143
Criminal law
Iran, 346347, 349
Iraq, 212, 214
Jordan, 222
Lebanon, 239
miscarriage of justice, 508
money laundering, 269272, 333,
488492
Morocco, 357358
Oman, 298, 314
Pakistan, 377378
Saudi Arabia, 74
Scotland, 507508
Sudan, 247254
Yemen, 329330, 331333, 488492
Cuba, 5
Customary international law
anticipatory self-defence, 1314
cease-fire agreements, 25
Hague Regulations (1907), 498
human rights, 156
humanitarian intervention, 15
Cyprus, 104106
Index
534
Dayton Agreement (1995), 93, 101102
Dispute resolution
see also Arbitration
ICSID Convention, 8486, 262
Saudi Arabia, 7778, 268
Divorce
consensual, 60
Egypt, 185187
hardship, 345346
Iran, 36, 37, 44, 47, 49, 5154, 57,
6061, 344346
khul, 185187
sharia, 3839
talaq/repudiation, 36, 37
ujrat al-mithl/compensation, 38, 52
East Timor, 9798
Education
Palestinian refugees, 144146
Yemen, 337
Egypt
arbitration, 182183
banking, 192193
divorce, 185187
economic zones, 187188
employment, 188190
foreigners, 124
intellectual property, 190192
landlord and tenant, 183185
partnerships, 181182
Suez crisis, 26, 28, 29, 31, 136
telecommunications, 193194
World Trade Organization (WTO),
191192
Elections
Bahrain, 289
Kuwait, 261
Palestine, 229230
Sudan, 258260
Yemen, 317, 323
Employment
Bahrain, 285287
Egypt, 188190
foreigners see Foreign workers
Iraq, 213
Israel, 172176
Israeli settlements, 169177
Jordan, 221222
Kuwait, 263264
Morocco, 365366
Oman, 312314
Palestinian Authority, 172173
Palestinian refugees, 112, 114117,
119, 122, 134, 146148, 155, 158
permits see Work permits
trade unions, 285287, 339
Yemen, 326, 339
Environment
Lebanon, 239
Morocco, 366369
Yemen, 335336
Ethnic cleansing, 124
Euro-Mediterranean Convention
(2002), 231232, 241
European Union (EU), Lebanon, 145,
152, 163, 231232
Family law
children see Children
divorce see Divorce
Iran, 3739, 4364, 342346
marriage see Marriage
Morocco, 359
Oman, 314
Pakistan, 375376
Quran, 37
walejat, 48, 50
Yemen, 324326
Feminism and Islamic law, 3242
Final status agreement
aviation, 443
border regime, 445, 455
corridor, 439
dispute resolution, 456
early warning stations (EWS),
442443
electromagnetic sphere, 443
evacuation, 442
Geneva Accord (2003), 228, 435456
Implementation and Verification
Group (IVG), 437440, 443,
446447
incitement, 441
international border crossings, 444
Israeli-Palestinian Cooperation
Committee (IPCC), 454
Jerusalem, 444449
law enforcement, 443
multinational force (MF), 441443
negotiations, 125, 129, 143
Index
535
Palestinian refugees, 102, 125, 129,
143, 449454
prisoners/detainees, 456
purpose, 436
relations between parties, 436437
religious sites, 444446, 448, 455
Road Map, 434
road use, 454
security, 440444
territory, 438439
terrorism, 441
Fiqh/jurisprudence, 37, 39, 40, 41
Foreign investment
bilateral investment treaties, 8384
Iran, 348349
Kuwait, 261263
Libya, 244
Saudi Arabia, 6587
Yemen, 333334
Foreign workers
see also Employment
Israel, 171
Kuwait, 263264
Lebanon, 117, 134, 146, 147, 155,
158
Freedoms
see also Human rights
association, 153
expression, 157, 287, 441
movement, 119, 121, 133, 153, 157
Gaza Strip
see also Palestine
displaced persons, 102
international aid, 117
Oslo process, 129, 161, 169
Palestinian Authority, 118, 129
Palestinian state, 128
resettlement, 128, 129, 160, 161
Suez crisis, 136
territorial integrity, 169170
UNRWA, 141
Geneva Accord (2003), 228, 435456
Geneva Convention IV (1949), 9495,
96, 419, 426428, 496, 497, 499504
Governing law, 511, 522525
Guarantees, 7677, 516517, 525526
Gulf States
GCC Customs Union, 264, 274, 310
311
Palestinian refugees, 155, 160, 161
Hadith, 35
Hague Regulations (1907)
armistice agreements, 25
customary law, 498
seizure of property, 426, 501503
Human rights
CESCR (1966), 157158, 163,
426428
dichotomies, 9192
freedomsee Freedoms
fundamentalism, 91
ICCPR (1966), 157158, 163, 426,
427
international protection, 6, 17,
156158, 163
Jordan, 217218
peacemaking, 91
property rights, 105
Scotland, 507, 508
United Kingdom, 27, 28
West Bank, 427428
Yemen, 326328
Human Rights Committee (HRC), 157
Human Rights Watch, 95
Humanitarian intervention, 1518, 432
Humanitarian law
civilian populations, 500501
property rights, 426, 501504
prosecutions, 95
West Bank security barrier, 427428,
495506
Ibadat/legal rulings, 39
ICSID Convention
Kuwait, 262
Saudi Arabia, 8486
Idjima/consensus, 68
Income tax
see also Taxation
Oman, 309310
Syria, 195199
Indonesia, 9798
Industrial designs, 191
Insurance
Libya, 244245
Morocco, 364365
Intellectual property
Egypt, 190192
Jordan, 222
Oman, 295297
Yemen, 336
Index
536
International Committee of the Red
Cross (ICRC), 496497, 500501
International Covenant on Civil and
Political Rights (1966), 157158, 163,
426, 427
International Covenant on Economic,
Social and Cultural Rights (1966),
157158, 163, 426428
International law
armed force, 5
custom see Customary international
law
Jordan, 222224
Kuwait, 264
Lebanon, 241
Libya, 245246
Morocco, 369371
Oman, 314
peacemaking, 88109
precedent, 56
Yemen, 320323
International relations (IR), 92
Intifada
Fateh-intifada, 139
Second Intifada, 147, 169, 171, 228
Iran
children, 48, 50, 55, 56, 342343,
347348
Civil Code, 4449, 5157
constitutional law, 43, 50
Council of Guardians, 50, 52, 53,
5558
criminal law, 346347, 349
divorce, 36, 37, 44, 47, 49, 5154, 57,
6061, 344346
dowries, 46, 59, 6162
draft legislation, 5657
dress codes, 45
Expediency Council, 5051, 5458
extradition, 349
family courts, 5862
family law, 3739, 4364, 342346
Family Protection Acts, 37, 4950, 51
foreign investment, 348349
gender relations, 38, 4547, 49,
5156, 6263
Islamic Republic, 3637, 40, 5058
judicial divorce, 49, 51, 52, 344345
law reform, 37, 43, 5156
legal system, 341342
legislation, 5051
maintenance, 46, 50, 343344
marriage, 44, 4547, 5556, 342344
Mohammad Reza (1941-79), 4850
Pahlavi dynasty, 37, 43, 4450
parquet, 341, 349
patriarchy, 45
Revolution (1979), 37, 42
Reza Shah (1925-41), 4448
rogue state, 5
sharia, 3740
succession, 45
waqf/religious foundations, 44
Iraq
administrative law, 210212, 399417
commercial law, 213
employment, 213
judiciary, 212
property law, 213
transitional government, 210212,
399417
UNSC Resolutions see under UN
Security Council
weapons inspectors, 9, 10, 11, 26, 30
Iraq war
aftermath, 209210
basis for invasion, 89
force, implied authorisation, 1820
Pax Americana, 328
regime change, 3, 5, 15, 26
self-defence, 1215
United Kingdom, 8, 911, 2127,
108109, 209, 418
weapons of mass destruction (WMD),
3, 8, 9, 24, 30
Islamic feminism, 3242
Islamic law
dress codes, 37
fiqh/jurisprudence, 37, 39, 40, 41
gender equality, 34, 36, 42
Hanafi school, 68
Hanbali school, 68, 70, 74, 79
haqq/right, 41
ibadat/legal rulings, 39
idjima/consensus, 68
legal theories, 36
Maliki school, 68
modernity, 33, 40
muamilat/private contracts, 39
patriarchy, 32, 33, 34, 37, 38
qiyas/analogy, 68
secularisation, 33, 3640
Shafii school, 68
Index
537
sharia see Sharia
state ideology, 42
Sunni jurisprudence, 68
taklif/duty, 41
Israel
see also Palestine
Armistice Line (1949), 420, 421, 426
employment law, 172176
final status agreement, 102, 125,
129, 143, 434, 435456
foreign workers, 171
Geneva Accord (2003), 228, 435456
identity cards, 170, 173
invasion of Lebanon (1982), 120,
121, 138
Israel Defence Forces (IDF), 170,
422, 427, 431, 432, 443
Jerusalem see Jerusalem
relations with Palestine, 227228
Road Map see Road Map
security barrier see West Bank security
barrier
self-determination, 90
UNGA Resolutions see under UN
General Assembly
Security Council
War (1947-48), 133
War (1967), 118
work permits, 171
Israeli settlements
equal treatment, 173174
jurisdiction, 169170, 172173
labour shortages, 171
Mitchell Plan, 89
Palestinian workers, 169177
Road Map, 433
West Bank, 170171
Jerusalem
al-Haram al-Sharif/Temple Mount,
445446
cemeteries, 448
Municipal Coordination, 448449
Old City, 446448
security barrier, 444449
UN Security Council, 228, 419420
Wailing Wall, 446
Western Wall Tunnel, 448
Jordan
Black September, 137
civil law, 218219
civil procedure, 219220
commercial law, 220221
company law, 220
criminal law, 222
employment, 221222
human rights, 217218
international law, 222224
landlord and tenant, 221
Lebanese guerrillas, 118
legislation, 225226
115, 117, 122, 161
taxation, 224
Judiciary
Afghanistan, 478481
Iraq, 212
Sudan, 254258
Kosovo, 1617
Kuwait
contracts, 263
elections, 261
employment, 263264
GCC Customs Union, 264
liberalisation, 261263
Labour see Employment
Landlord and tenant
Egypt, 183185
Jordan, 221
LAW, 173
Lebanon
arbitration, 235236, 238
banking, 239240
bilateral agreements, 241
Cairo Agreement (1969), 119, 121,
134, 137139, 144
camps see Palestinian refugee camps
Christianity, 112, 113, 114, 133
citizenship, 110, 111, 115, 133, 146,
237
civil law, 232233
civil war, 119, 120, 125, 132,
139140, 144
Index
538
commercial law, 238
company law, 238
contemporary policies, 121127
contracts, 233
criminal law, 239
deuxime bureau, 119
displaced persons, 150, 159
environment, 239
European Union (EU), 145, 152,
163, 231232, 241
foreign workers, 117, 134, 146, 147,
155, 158
foreigners, 112, 115, 116, 119, 122,
124, 134, 145, 146, 151, 152
Green Card, 162
Israeli invasion (1982), 120, 121, 138
legal profession, 146
liberalisation, 231232
Maronites, 113, 114, 133, 159, 237
PLO see Palestine Liberation
Organisation
property law, 151152, 232234
racism, 116, 153, 158
reciprocity principle, 146, 147, 151,
155, 158
refugees see Palestinian refugees
renvoi, 235
restitution, 234235
Rhodes Accords (1949), 133
sectarian democracy/
confessionalism, 113, 119, 133, 159
sectarian system, 110116
Shiites, 111, 120, 139
Sunni, 111, 114, 120, 125, 130, 159
Taif agreement, 144, 151, 159
travel documents, 124, 136, 153, 155
tuition fees, 145, 152
Visa Restriction Scheme, 153, 157
War (1947-48), 133
work permits, 117, 134, 146, 147,
155, 158, 160
Legal profession
Lebanon, 146
Oman, 297298
Saudi Arabia, 7475
Legal system
Iran, 341342
Jordan, 216217
Oman, 295
Yemen, 328333
lex mercatoria, 510
Liberalisation
Kuwait, 261263
Lebanon, 231232
Saudi Arabia, 66
Libya
administrative law, 242243
contracts, 243
insurance, 244245
rogue state, 5
Mahr/dower, 234
Maintenance, 46, 50, 343344
Maritime law see Shipping law
Marriage
contracts, 36, 45, 47, 54
divorce see Divorce
Iran, 44, 4547, 5556, 342344
polygyny, 36, 37
Middle East
Geneva Accord (2003), 228, 435456
Gulf see Gulf States
regional security, 440
Mining
Oman, 305307
Yemen, 334335
Money laundering
Yemen, 333, 488492
Morocco
administration of justice, 352353
civil law, 359363
civil rights, 350352
commercial law, 363
communications, 351352
criminal law, 357358
employment, 365366
environment, 366369
family law, 359
insurance, 364365
terrorism, 357358
Muamilat/private contracts, 39
Murbaha/Morabaha contracts, 509
526
Index
539
North Atlantic Treaty Organization
(NATO), 6, 7, 1617
North Korea, 5, 25
Oman
banking, 300301
capital markets, 301305
company law, 301305
consumer loans, 300301
consumer protection, 299300
double taxation, 312
employment, 312314
family law, 314
legal profession, 297298
legal system, 295
licensing, 305307
mining, 305307
taxation, 309312
tourism, 307308
Orientalism, 35
Oslo Agreement (1994)/peace process
collapse, 107108
Gaza Strip129, 161, 169
inequalities, 169, 176
jurisdiction, 169170
Lebanon, 121, 123, 125127,
129130, 143, 160, 161
Palestine Liberation Organisation
(PLO), 116, 125, 127
political approach, 88, 129
third parties, 102
West Bank, 129, 161, 169
Pakistan
Al-Qaeda, 372, 373, 378
family law, 375376
judicial protocol on children,
486487
Palestine
elections, 229230
fedayeen guerrillas, 118
129, 143, 434, 435456
Gaza see Gaza Strip
Geneva Accord (2003), 228, 435456
Hizbullah, 121
identity cards, 170
institution building, 432
Jericho, 116, 160
Jerusalem see Jerusalem
legislation, 229
Legislative Council, 227, 229
Madrid process, 125, 144, 430
Mitchell Plan, 89, 227
occupied territories, 110, 117, 141,
419219
Oslo process see Oslo Agreement
(1994)/peace process
Palestinian Security Force (PSF),
440441
peace agreements, 93, 102, 107, 121,
124
Peace Implementation Program
(PIP), 141
relations with Israel, 227228
Second Intifada, 147, 169, 171, 228
self-determination, 90, 9394
UNGA Resolutions see under UN
General Assembly
Security Council
West Bank see West Bank
(PLO)
betrayal, 142143
Cairo Agreement (1969), 119, 121,
134, 137139, 144
corruption, 138
evacuation (1982), 121, 138139
Fateh, 125, 126
financial assistance, 122, 125126,
137
Kuwait, 142
Lebanon, 112, 118122, 124127,
137138
normalisation talks, 144
Oslo Agreement (1994), 116, 125,
127
refugee camps, 118, 119120, 137
139
War (1967), 118
West Bank barrier, 427428
Index
540
Palestinian Authority
autonomy, 170
corruption, 143
employment law, 172173
establishment, 129130
final status negotiations, 125, 129,
143
Gaza Strip, 118, 129
West Bank, 118, 129
Palestinian Red Crescent Society
(PRCS), 137, 148149
Palestinian refugee camps
Al-Azraq, 161
Amal militia, 120
Beddawi, 149
Beirut, 116, 120, 145, 149, 150
Burj El-Barajneh, 145, 149, 150
Burj El-Shemali, 149
Dauq, 139
Dbayeh, 139, 140
destruction, 128, 133, 139140
dispersal, 133
Ein El-Hilweh, 126, 144, 145, 152
El-Buss, 149, 150
factional feuding, 122
health, 148149
Jenin, 95
Jisr El-Bacha, 139, 150
Jordan, 100, 161
Lebanon, 100, 110168
living conditions, 115, 117, 123, 142,
149
Mar Elias, 143
Mieh Meh, 144
Nabatiyeh, 139
Nahr El-Bared, 149
official policy, 149151
PLO, 118, 119120, 137139
political mobilisation, 118
Rashidieh, 131, 149
Sabra, 120, 128, 139
Shatila, 120, 128, 139, 149
Tal El-Zaatar, 139, 150
Tyre, 149, 150
UNRWA assistance, 115, 117118,
140143, 145150
uprising (1969), 134, 137
war of the camps, 120, 139
weapons, 159
Palestinian refugees
Arab League, 115, 154155
arrival in Lebanon, 133138
autonomous institutions, 118120,
137
Casablanca Protocol (1965), 115,
154155, 162
Christianity, 110, 111, 133
civil rights, 110, 111, 115117, 123,
132, 144, 154, 161
compensation, 449, 451
definition, 134137
education, 144146
Egypt, 117
employment, 112, 114117, 119,
122, 134, 146148, 155, 158
129, 143, 449454
freedom of association, 153
freedom of expression, 157
freedom of movement, 119, 121,
133, 153, 157
Galilee, 110, 121
Gulf States, 155, 160, 161
International Commission, 451453
International Fund, 453
Jordan, 110, 112, 113, 115, 117, 122,
161
Lebanese official policy, 112, 115
116, 119, 122, 124125, 133134,
154162
Lebanon, 110168
legal constraints, 144153
Libya, 124, 153
Mandate Palestine, 121, 132, 133
massacres, 95, 120, 123, 131,
138139
medical treatment, 148149
Multilateral Track, 121, 130
numbers/census, 111112, 131, 133,
136, 159
ownership rights, 151152
peace process, 8890, 9293, 100,
102103, 107108
Permanent Place of Residence
(PPR), 450
poverty, 122123
reconciliation, 454
redistribution/exile, 116, 128129,
151, 156, 160161
Refugee Working Group (RWG),
127129
resettlement, 116, 128, 129, 160161
resistance, 118
Index
541
right to return, 90, 93, 103, 107108,
123, 126127, 133, 162
stateless persons, 146, 147, 151, 155,
157
Syria, 110, 117, 120, 121, 122, 144
tawteen, 111, 121, 123, 128, 143, 144,
151, 154155, 159160
United States, 160161
UNRWA, 111113, 115118, 124,
132, 134137, 140143, 145150,
154156, 162164, 453
Patents
Egypt, 190
Peacemaking
Arab Peace Initiative, 449
armistice agreements, 25
Belfast/Good Friday Agreement
(1998), 93
cease-fire agreements, 25, 30
Dayton Agreement (1995), 93,
101102
human rights, 91
Madrid process, 125, 144, 430
Oslo process see Oslo Agreement
(1994)/peace process
past-focussed issues, 93, 94, 101
permanent status agreement see Final
status agreement
pragmatism, 104
restitution, 9899, 100, 101, 103104
restorative justice, 97, 100
retributive justice, 94, 100
South Africa, 9192, 9699
transitional justice, 92
Permanent status agreement see Final
status agreement
Political Islam, 33, 34
Precedent
Saudi Arabia, 74
Property law
Geneva Convention IV (1949),
503504
Hague Regulations (1907), 426,
501503
human rights, 105
humanitarian law, 426, 501504
Iraq, 213
Lebanon, 151152, 232234
mahr/dower, 234
Sharia, 6970
Qiyas/analogy, 68
Quran
family law, 37
source of law, 36, 39, 67, 69
tafsir/interpretation, 36
Racial discrimination, Convention
(1971), 158
Refugees
Convention (1951), 155, 156
Palestine see Palestinian refugees
Protocol (1967), 155
right to return, 90, 93, 103, 105108,
123, 126127, 133, 162
UNHCR, 135, 155156, 163, 327
Religious sites, 444446, 448, 455
Religious texts, misogyny, 35
Restitution
Lebanon, 234235
peacemaking, 9899, 100, 101,
103104
restitutio in integrum, 101, 103, 104
South Africa, 9899
Road Map
1967 boundaries, 227
Geneva Accord (2003), 228
institution building, 432
Israeli policy, 90, 107108
normalisation, 431433
Quartet, 89, 430, 431, 433, 434
reciprocity, 229
security, 431432
Tenet Work Plan, 431
transition, 433434
United States, 89, 90, 107, 108, 430
Rogue states, 5, 1415
Rome Convention (1980), 510
Saddam Hussein, 510, 1718, 26, 30,
209, 210
Saudi Arabia
alternative means of recourse, 7886
arbitration, 7986
banking, 73
bilateral investment treaties, 8384
Board of Grievances, 7073, 77,
8283
Index
542
brokers, 267268
burden of proof, 74
capital markets, 265269
Commercial Papers Committee, 73
contracts, 67, 6970
Council of Ministers, 69, 80
criminal law, 74
dispute resolution, 7778, 268
excluded activities, 8687
foreign arbitration, 8183
foreign capital, 7576
foreign investors, 75
fundamental law, 6869
government tenders, 71
guarantees, 7677
insurance, 272273
interest payments, 70
investor protection, 7578
laws, 6770
legal representation, 7475
liberalisation, 66
licensed activities, 76
litigation, 7175
money laundering, 269272
multilateral conventions, 8486
natural gas, 66
oil, 65
precedent, 74
prescription of rights, 70
quasi-judicial committees, 73
recent developments, 69
Royal decrees, 69
SAMA, 73, 267269
Securities and Exchange Commission
(SSEC), 266, 267, 268
Securities and Exchange Market,
266267
sharia courts, 70, 71, 73
Supreme Economic Council, 66, 76
taxation, 272273
translations, 75
Secular fundamentalists, 35
Security
Road Map, 431432
West Bank barrier, 228, 419428,
495506
Yemen, 315317
Self-defence
anticipatory, 1314
Iraq war, 1215
pre-emptive, 1415
UN Charter, 1314, 501502
West Bank security barrier, 501502
Self-determination, 90, 91, 9394
Sharia
see also Islamic law
arbitration, 79
banking, 509526
contracts, 67, 6970
divorce, 3839
expropriation, 70
fundamentalists, 35
future profits, 70
good faith/fair dealing, 70
Iran, 3740
Islamist project, 33, 34, 41, 42
New Religious Thinking, 40
perfect law, 37
private property, 6970
traditionalists, 35
ulema/theologians, 68
Shia
civil law, 45
divorce, 47
Iranian clerical establishment, 44
Shipping law
bills of lading, 276, 277
ships agents, 276
Syria, 208
Yemen, 335, 338
South Africa
compensation, 99
peacemaking, 9192, 9699
restitution, 9899
Truth and Reconciliation
Commission (TRC), 97, 98
State practice
Stateless persons
children, 157
Convention (1954), 155, 156
155, 157
Sudan
elections, 258260
judiciary, 254258
Suez crisis, 26, 28, 29, 31, 136
Sunna, 39, 67, 68
Index
543
Sunni
jurisprudence, 68
Lebanon, 111, 114, 120, 125, 130,
159
Syria
children, 207
Fateh-intifada, 139
121, 122, 144
rogue state, 5
shipping, 208
taxation, 195202
tourism, 203207
Taif agreement, 144, 151, 159
Taklif/duty, 41
Talaq/repudiation, 36, 37
Taxation
double taxation, 312, 321
Jordan, 224
Oman, 309312
Syria, 195202
Yemen, 321, 333
Telecommunications
Egypt, 193194
Oman, 295297
Terrorism
imminent threat, 15
Lockerbie trial, 507508
Morocco, 357358
Pakistan, 372, 373, 378
Tourism
Oman, 307308
Syria, 203207
Yemen, 331332
Trade unions
Bahrain, 285287
Yemen, 339
Trademarks
Egypt, 190
Jordan, 222
Yemen, 336
Transport
civil aviation, 443
maritime see Shipping law
road use, 454
Yemen, 339340
Turkey, 105106
Ujrat al-mithl/compensation, 38, 52
UN Charter
armed force, 5, 1121
implied authorisation of force, 19
self-defence, 1314, 501502
UN General Assembly
Israel/Palestine (Res.194), 123, 130,
132, 135, 161, 449
Israel/Palestine (Res.ES-10/7), 497
Israel/Palestine (Res.ES-10/13),
419420
Israel/Palestine (Res.ES-10/248),
420428
UNHCR (Res.428), 155
UNRWA (Res.302), 135
UN Security Council
cease-fire agreements, 25, 30
collective action, 1112, 19, 20
diplomacy, 7
Iraq (RES/1441), 10, 12, 1921, 27,
30, 418
Iraq (RES/1483), 214, 381387
Iraq (RES/1500), 214, 387
Iraq (RES/1511), 214, 387390
Iraq (RES/1546), 391398
Iraq/Kuwait (RES/660), 23, 24
Iraq/Kuwait (RES/661), 23
Iraq/Kuwait (RES/678), 9, 12,
2126, 2930, 418
Iraq/Kuwait (RES/686), 23
Iraq/Kuwait (RES/687), 24, 30, 418
Israel/Palestine (RES/242), 89, 426,
430, 434, 435, 449
Israel/Palestine (RES/338), 89, 426,
430, 434, 435
Israel/Palestine (RES/1397), 8990,
426, 430, 434, 435
Israel/Palestine (RES/1515), 227,
426
Israel/Palestine (RES/1544),
428429
Liberia (RES/788), 16
non-forceful measures, 12, 19
refugees, 103
reprisals, 25
veto power, 12, 20, 26, 228
arbitration, 275
bills of lading, 276, 277
Index
544
company law, 277
credit cards, 276
Dubai
construction law, 279280
International Financial Centre,
278
Internet City, 276
rent law, 279
Technology and Media Free Zone,
277
employment, 279
ISPS Code, 278
Jebel Ali Free Zone, 278
legal education, 275
property law, 279280
Sharjah
Chamber of Commerce, 275
construction law, 279
shipping law, 276278
ships agents, 276
software piracy, 283
TRIPS Agreement, 282
United Kingdom
Attorney-General, 2122, 27, 108,
209, 418
human rights, 27, 28
Iraq war, 8, 911, 2127, 108109,
209, 418
judicial protocol on children,
486487
Palestine, 100
United Nations
Development Programme (UNDP),
161, 328
East Timor, 9798
Economic Survey Mission (ESM),
133, 135
High Commissioner for Refugees
(UNHCR), 135, 155156, 163, 327
peacekeeping, 8
Relief Work Agency (UNRWA),
111113, 115118, 124, 132,
134137, 140143, 145150,
154156, 160164, 453
victims, reparation, 99100
weapons inspectors, 9, 10, 11, 26, 30
United States
Committee for Refugees, 122
military expenditure, 7
Pax Americana, 328
Road Map, 89, 90, 107, 108, 430
Universal Declaration of Human Rights
(1948), 6, 156
Walejat, 48, 50
Waqf, 44, 152
Weapons
mass destruction (WMD), 3, 8, 9, 24,
30
Palestinian refugee camps, 159
UN inspectors, 9, 10, 11, 26, 30
West Bank
see also Palestine
Closed Areas, 424, 425, 427
displaced persons, 102
Green Line, 422, 423, 424, 425, 426,
428
Oslo process, 129, 161, 169
Palestinian Authority, 118, 129
Palestinian state, 128
resettlement, 116, 128, 129, 161
territorial integrity, 169170
West Bank security barrier, 228,
419428
humanitarian law, 427428, 495506
ICJ opinion, 495506
ICRC, 496497, 500501
impact, 424425
Israeli position, 426427, 505506
Jerusalem, 444449
(PLO), 427428
route, 421424
Secretary-Generals report (2003),
420426
self-defence, 501502
Work permits
see also Employment
Israel, 171
Lebanon, 117, 134, 146, 147, 155,
158, 160
World Trade Organization (WTO)
Egypt, 191192
Kuwait, 263
Index
545
Yemen
Advisory Council, 317318
banking, 335
citizenship, 325
courts, 330331
criminal law, 329330, 331333,
488492
double taxation, 321
drug abuse, 330
education, 337
elections, 317, 323
employment, 326, 339
environment, 335336
family law, 324326
Higher Council for Women, 324
House of Representatives, 318320
immigration, 338339
investment, 333334
Legal Affairs Ministry, 331
loans, 322
local authorities, 323
mining, 334335
money laundering, 333, 488492
national security, 315317
oil, 321322
shipping law, 335, 338
taxation, 321, 333
tourism, 331332
transport, 339340
utilities, 338
Index

Yearbook of Islamic and Middle Eastern Law

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Middle Eastern Law

1 CONSTITUTIONAL AND ADMINISTRATIVE LAW

In their pleadings submitted to the International Court of Justice (the Court) in

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