Yearbook of Islamic and Middle Eastern Law: 2002-2003

Yearbook of Islamic and Middle Eastern Law

Volume 9 2002–2003

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 Mareé, 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 Islamic and Middle Eastern Law Volume 9

2002–2003 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 Preface Part I – Articles Iraq: The Pax Americana and the Law Lord Alexander of Weedon QC Britain’s War on Saddam had the Law on its Side Christopher Greenwood QC Islamic Law and Feminism: The Story of a Relationship Ziba Mir-Hosseini Iranian Family Law in Theory and Practice Dr. Nadjma Yassari Foreign Investment Protection in Saudi Arabia Jean-Benoît Zegers The Role of International Law and Human Rights in Peacemaking and Crafting Durable Solutions for Refugees: Comparative Comment Lynn Welchman Sectarianism and the Rejection of Tawteen: Lebanon and the Palestinian Refugees Nur Masalha Betrayed and Forgotten: Palestinian Refugees in Lebanon Lena El-Malak The Jurisdictional Politics of Israel/Palestine: The Case of Palestinian Workers in Israeli Settlements Tobias Kelly Part II – Country Surveys Egypt – Kosheri, Rashed & Riad Syria – Jacques el-Hakim Iraq – Sabah Al-Mukhtar Jordan – Hamzeh Haddad Palestine – Anis Al-Qasem Lebanon – Nayla Comair-Obeid Libya – Mustafa El-Alem

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3 29 32 43 65

88 110 131

169

181 195 209 216 227 231 242

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Sudan – John Wuol Makec Kuwait – Fadi B. Nader Saudi Arabia – Fares Al-Hejailan, Law Firm of Salah Al-Hejailan, Riyadh United Arab Emirates – Terence Witzmann and James Abbott, Clifford Chance, Dubai Bahrain – Husain M. Al Baharna Oman – Andrew Rae and Brian Howard, Trowers & Hamlins, Oman Yemen – Nageeb Shamiri Iran – M. A. Ansari-Pour Morocco – Michèle Zirari-Devif Pakistan – Martin Lau Part III – Selected Documents Iraq United Nations Security Council Resolutions regarding Iraq Law of Administration for the State of Iraq for the Transitional Period, 8 March 2004 Legality of Armed Force Palestine/Israeli Conflict United Nations Security Council Resolutions regarding the Palestine/Israeli Conflict A Performance-Based Road Map to a Permanent Solution to the Israeli-Palestinian Conflict The Geneva Accord Draft Permanent Status Agreement Afghanistan The Constitution of Afghanistan (Unofficial Translation) Pakistan UK-Pakistan Judicial Protocol on Children Matters Yemen Law No. 35/2003 on Combating Money Laundering Part IV – Selected Cases The Wall at the ICJ The Wall and International Humanitarian Law – Professor Iain Scobbie The Lockerbie Trial: Further and Future Developments – Professor Iain Scobbie Shamil Bank of Bahrain v. Beximco Pharmaceuticals and Others – Introduction by Kilian Bälz Constitutional Case No. 4/2003: Decided by the Constitutional Division of the Supreme Court of the Republic of Yemen – Said Hasson Sohbi Index

Contents 247 261 265 274 285 295 315 341 350 372

381 399 418

419 430 435 457 486 488

495 495 507 509

527 532

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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 Lincoln’s 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 Lincoln’s 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.

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Biographical Notes

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 Bälz, 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 agrégé 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

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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 Mary’s 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.

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Biographical Notes

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 International 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 People’s 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 Republic’s 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-Benoît 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. Michèle Zirari-Devif is a Professor at the Faculty of Juridical, Economic and Social Sciences, University Mohammed V, Rabat, Morocco.

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Preface The year under review remains dominated by Iraq and Palestine. Since last year’s invasion of Iraq by coalition forces led by the United States, the country’s 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 country’s transition to democratic selfgovernment 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 year’s 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 materialised1 and currently the agenda is dominated by the Israeli government’s 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 year2 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 year’s Volume 10 (see post p. 506).

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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 Frontières 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 country’s 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 year’s volume contains two contributions on Iran including Ziba Mir-Hosseini’s Coulson Lecture, which deals with the legal position of women in Iran and Dr. Yassari’s general introduction to Iran’s 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 year’s 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-Benoît 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 reproduced in this volume with an introduction by Kilian Bälz. 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. Cécile 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 year’s New Year’s 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

Part I Articles

3

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 QC’s 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 O’Keefe (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. PierreMarie 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

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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.

Iraq: The Pax Americana and the Law

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 selfinterest. 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 18th 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.

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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 Monetar y 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 farsighted 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. Farflung 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 selfinterest, 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 Jefferson’s “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 AntiBallistic 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 America’s 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. Let’s 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.

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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 peacekeeping 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 Milosevic’s 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 O’Hanlon, Financial Times, 6 August 2003. 19 Iraq’s 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 Saddam’s 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 Saddam’s 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 Straw’s 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 Iraq’s 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 Iraq’s 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).

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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 Hussein’s 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 Iraq’s 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 selfdefence 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-General’s press conference, Brussels, 17 February 2003.

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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 selfdefence 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 selfdefence 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 selfdefence 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.

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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 state’s 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 armée”. 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 selfdefence, 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) Oppenheim’s 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 today’s 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 selfdefence 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 inter vention has been a notoriously controversial doctrine since it was first advocated by Grotius in the 17th 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 today’s 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 Hussein’s 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, Lloyd’s 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 Kingdom’s 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.

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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. India’s intervention in East Pakistan in 1971, Vietnam’s overthrow of the Khmer Rouge in Kampuchea and Tanzania’s 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 Iraq’s ethnic minorities in the aftermath of the first Gulf war; and NATO’s 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. Liberia’s 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. NATO’s 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 selfdetermination. 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 4’s 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 NATO’s 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: “NATO’s 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.

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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: India’s 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, NATO’s 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 Hussein’s regime shortly after the 1991 Gulf War, add further confirmation, if confirmation were needed, of the appalling nature of Saddam Hussein’s 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 Iraq’s 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 D’Amato, “Israel’s 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 coalition’s action saying that Iraq’s consent was necessary for such consent to be legal (Keesing’s 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 Council’s 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. D’Amato 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 D’Amato, International Law: Process and Prospect (New York, Transnational Publishers, 1987), p. 78.

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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 Council’s 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 I’ve said that we would move without one . . . that is the circumstances where the U.N. inspectors say he’s not cooperating and he’s 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 Minister’s 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 Iraq’s 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.

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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 Iraq’s 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 Iraq’s 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 6 August, 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 Billière, 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 Billière, Storm Command (London, Harper Collins, 1995), p. 304.

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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.

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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 naïve enough to trust our government, blissfully unaware of the infamous Sèvres 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 Short’s 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 international 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-General’s 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 government’s 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 government’s 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 author’s Denning Society Lecture 2001.

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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 international 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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Britain’s War on Saddam had the Law on its Side Christopher Greenwood QC *

The charge of military adventurism is unfair; we upheld international law Today’s 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 government’s 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. Britain’s 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 Iraq’s 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.

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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 ceasefire, laid down in Resolution 687, after the liberation of Kuwait. They were legally binding on Iraq and were accepted by Saddam Hussein’s 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 council’s 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.

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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 Coulson’s 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 women’s demand for gender justice and equality. This is an area of tension that has come much more into focus since Professor Coulson’s 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 Islam’s 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.

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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 shari‘a’.

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 20th 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.

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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 women’s 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 20th 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 shari‘a’ – 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 Badran’s words, “transcends and destroys old binaries that have been

3 Margot Badran, “Islamic Feminism: What’s in a name?” Al-Ahram Weekly Online, 17-23 January 2002, Issue No. 569.

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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 shari‘a Islamic fundamentalists – a very broad category – are those who seek to change current practices by a return to an earlier, “purer” version of the shari‘a, 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 shari‘a-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 nonhistorical 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 misrepresentation. 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 Qur’anic 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 women’s 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 Qur’an (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, Qur’an and Woman: Reading of the Sacred Text from a Woman’s Perspective (New York, Oxford University Press, 1999).

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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 Qur’an, and how Islam’s sacred texts have been tainted by the ideology of their interpreters. For example, men’s 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 Qur’an’s 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 Qur’anic 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 Women’s Movement in Iran (London, Zed Books, 1982), p. 232.

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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 shari‘a, 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 women’s aspirations, that both clerics and lay people have been forced to rethink their notion of the shari‘a 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 Qur’an 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 shari‘a provisions of family law has become their priority. One of the early communiqués issued by Ayatollah Khomeini’s 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 Shari‘a provisions for marriage and divorce were now re-instituted. The Family Protection Law had abolished men’s 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.

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less the same footing in terms of access to divorce and custody rights. The Revolutionary Council restored the shari‘a in order to “protect the family” and realise “women’s 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 don’t agree? Is this what the shari‘a 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 shari‘a, 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 shari‘a. “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 shari‘a.” 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 shari‘a 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 communiqué from Ayatollah Khomeini’s 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 wife’s consent or to compensate her. The 1992 Amendments to the Divorce Laws enable a court to place a monetary value on women’s 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 Shari‘ah,” Islamic Quarterly 33 (1989), p. 216. For an argument not employing the distinction, see Abdullahi Ahmed An-Na‘im, “Islamic Foundation for Women’s Human Rights”, in Zainah Anwar and Rashidah Abdullah (eds), Islam, Reproductive Health and Women’s Rights (Kuala Lumpur: Sisters in Islam, 2000), pp. 33-34.

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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 shari‘a” 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 shari‘a, 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 Shari‘a literally means “the way” and in Muslim belief it is the totality of God’s 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 Qur’an and the Sunna (the practice of the Prophet). In other words, while the shari‘a 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 Coulson’s 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 shari‘a – 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 “God’s 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 mu‘amilat (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, mu‘amilat; they regulate relations among humans, and remain open, almost without restriction, to rational considerations. In other words, while the shari‘a 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).

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By the early 1990s in Iran, the ideological, theological, theoretical and practical problems brought by the experience of administering premodern interpretations of the shari‘a had led to the formulation of a new approach. The main architect was Abdolkarim Soroush, whose interpretativeepistemological theory of the evolution of religious knowledge – known as “The Contraction and Expansion of Shari‘a” – posed a serious challenge to both traditional and ideological constructions of the shari‘a. 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 Islam’s 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 11th 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 19th 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 21st 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 shari‘a. It is not that the shari‘a is losing its sanctity, or that people are turning away from Islam. Rather, the state’s ideological use of the shari‘a, and its penetration into the private lives of individuals, have brought home the urgent need to separate the shari‘a 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 Women’s Rights”, American University Journal of International Law and Policy 12 (1997), pp. 1-44.

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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 shari‘a”, 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 shari‘a, 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 Iran’s 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.

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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 history’s 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 transformation 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 shari‘a”, 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 people’s experiences; it has both the potential and the legal mechanisms to deal with women’s 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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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 Shah’s 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 Iran’s 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-PlanckInstitute 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 Qur’an are from Yusuf Ali, The Holy Qur’an. 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: Ga‘fari-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. MohaqeqDamad, S.M., barresi-e feqhi-e hoquq-e xanewade, nekah wa enhelal-e an (Civil law, marriage and its dissolution) 9th edition, 2002. Safa‘i, S.H., Emami, A., moxtasar-e hoquq-e xanewade (A concise family law) 5th edition, 2002. Safa‘i, S.H., Emami, A., hoquq-e xanewade (Family law) 2 Volumes, 8th edition, 2002. Ha‘eri 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. Rafi‘i, 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. Ure‘i, Q., tamkin-e banu, riasat-e sohar (The wife’s submission and the husband’s leadership) 2001.

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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 Shah’s 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 Shi’a 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 Shi’a 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 asnâd 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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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-Shi’a 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 man’s 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 Shi’a 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, custody11 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 relationship13 whereby the spouses are committed 8 17 February, 12 March, 17, 19, 20 April 1935. 9 Massé, H., “le dévoilement des Iraniennes”, revue des études islamiques, Cahiers 1935, pp. 411418. 10 Arts. 1034-1157, Civil Code. 11 Arts. 1158-1206, Civil Code. 12 Arts. 1207-1256, Civil Code.

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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 husband’s 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 wife’s 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 father’s 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 family’s 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 family’s 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 anybody’s 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 14 15 16 17 18 19 20 21 22 23 24

Art. 1062, Civil Code. Art. 1103, Civil Code. Art. 1104, Civil Code. Art. 1102, Civil Code. Art. 1106, Civil Code. Ha‘eri Ðahbaq, Vol. 2, 1997, p. 988 et seq. Art. 1107, Civil Code. Art. 1105, Civil Code. Arts. 1004, 1114, Civil Code. Art. 1117, Civil Code. Safa‘i, S.H., Emami, A., hoquq-e xanewade , Vol. 1, p. 138. 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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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 MARRIAGE30

Before the codification of the Iranian Civil Code, Shi’a divorce law, as applied by Shi’a 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 act31 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 husband’s disappearance for a period of at least four years without any sign of life; (2) the husband’s refusal to pay alimony; (3) the husband’s breach of any other marital duties and the impossibility to have him observe them; and (4) the husband’s 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

27 28 29 30 31 32 33 34 35

Safa‘i, S.H., Emami, A., hoquq-e xanewade , Vol. 1, p. 187. Ibid., p. 139. Art. 1119 Civil Code and Art. 4 Marriage Act See for an account of Iranian divorce laws, Yassari, Überblick über das iranische Scheidungsrecht, FamRZ (Zeitschrift für das gesamte Familienrecht)16/2002 (1088-1094). Mohaqeq-Damad, S. M., p. 379. See Mehrpur, H., hoquq-e zan, p. 142 et seq. Arts. 1029, 1129 and 1130, Civil Code. Art. 1111 Civil Code. Katuzian, Vol. 1, p. 369. Ha‘eri Ðahbaq, p. 988 et seq. Ga‘fari-Lankarudi, p. 224. Safa‘i, S.H., Emami, A., hoquq-e xanewade , Vol. 1, Note 203, p. 228 et seq.

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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 negahdarî, or hezana,t36 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 father’s right to manage the child’s 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 being40 – 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 father’s 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 Reza’s 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. Safa‘i, S.H., Emami, A., hoquq-e xanewade, Vol. 2, p. 162. 38 Art. 1183, Civil Code. 39 Arts. 1180, 1181 Civil Code. 40 Katuzian, Vol. 2, p. 139. Safa‘i, S.H., Emami, A., hoquq-e xanewade, Vol. 2, p. 119. 41 Art. 1168, Civil Code. 42 Safa‘i, S.H., Emami, A., hoquq-e xanewade , Vol. 2, Note 110, p. 124 et seq. 43 Safa‘i, 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 peacock’s tail done in gems.

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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 husband’s final conviction by a court to a prison sentence of more than five years; (2) the husband’s conviction by a penal court for crimes that were shameful and harmful to the wife’s family prestige and honour; (3) the husband’s addiction to drugs; (4) the contraction of a second marriage without the consent of the first wife; and (5) the husband’s 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 husband’s 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 46 47 48

Arts. 8 and 19, FPA 1967. See 2.1.2.2. See Mehrpur, H., hoquq-e zan, p. 148. There are different grounds for men and women, See Arts. 8 and 9, FPA 1975.

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The FPA 1975 furthermore introduced a post-marital maintenance claim49 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 prerevolutionary 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, maglese 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 Safa‘i, S.H., Emami, A., hoquq-e xanewade, Vol. 2, Note 150, p. 167.

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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 Courts55 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 Qur’an57 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 women’s 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 HUSBAND’S 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 Hoðat-ol-eslam Rafsanðani as the Chairman of the Expediency Council. 53 This concept is derived from the Islamic principle of maslaha, see Nagel, T., Einführung 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, Ruznamee rasmi No. 2306 of 28 February 1993.

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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 WOMAN’S 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 61 62 63 64

See fn. 59. Art. 1, Divorce Act. Art. 1, Note 6, subsection A, Divorce Act. Mehrpur, H., hoquq-e zan, pp. 44-45. 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 mother’s milk.” 65 In July 2002 the Parliament proposed a draft law to include the oðrat 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 Safa‘i, S.H., Emami, A., hoquq-e xanewade, Vol. 1, p. 143.

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The Article did not give any precise definition of the expression of “osr wa harag”. According to Shi’a 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 Ha‘eri Ðahbaq, S. A., p. 990. Ga‘fari-Lankarudi, Mabsut, (Dictionary terms of law), Volume 4, 1999, Note 9466. 69 As quoted in hoquq-e zanan (Women’s 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.

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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 women’s 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 fiancés 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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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 changed76 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 75 Safa‘i, S.H., Emami, A., hoquq-e xanewade , Vol. 1, p. 70. 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 Moðawezi, P., “Marriage Age for Girls in Iran Goes Up”, Entexab, 18 October 2000.

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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 women’s and children’s 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 husband’s 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 erga‘i 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 erga‘i qazaji wa hoquqi, 22 January 2002, p. 4. 86 Komisionha-je erga‘i 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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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 Reza‘i, 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, hoquqe 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 Council’s right to change the draft law and to offer its own

88 89 90 91

Hamsahri, Daily Newspaper, 29 September 2002. Hoquq-e zanan, No. 23, February 2003, p. 30. Tehran Times, 22 August 2002. Interview with Geramizadegan in July 2003 in Tehran.

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version. Referring to Principle 85 of the Constitution,92 Fateme Raku‘i, Member of Parliament and President of the committee for family, women and youth affairs, considers the Expediency Council’s 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 Council’s 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 A‘in 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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4.1. The Tehran Family Law Courts98 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 Iran’s 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 Tehran’s 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).

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court’s 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 husband’s 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 Hamîdîân, 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; qawa‘ed-e feqhi wa hòuquqi dar Araj-e diwan-e ali-e keswar (Principles of Islamic Law in the Judicature of the Supreme Court), 2000. Mehrpur, H., ed., Magmu‘e-e nazarijat -e sura-e negahban (Compilation of the Views of the Council of Guardians), 3 Volumes, 1992. Kamyar, M., Gozidee araj-e dadgahha-e huquqi (A selection of the Judgments of the Civil Courts), 4 Volumes, 19971998. 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 Safa‘i, 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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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 husband’s inability to provide for maintenance tend to disrupt the functioning of conjugal life. Furthermore, the husband’s 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 (ta‘ahod) 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 husband’s 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 tr y 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.

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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 Pahlavi’s endeavours to improve women’s 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 women’s literacy rate reaching unexpected heights. Whereas in 1975 women’s 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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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 model115 are sometimes forced to enter the labour market to support the family. They cannot stay home without jeopardising the financial balance of the family’s 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 country’s 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 women’s lobby has been active in challenging the oldfashioned 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 Women’s employment still shows, however, immense deficiencies and the employment rate is still low. See Mu‘ajedi, M., “A statistical glance at women’s employment in Iran”, Zamine, monthly journal, Dawudi, M., ed., No. 39-40, pp. 64-66. 114 Zadeh, V., “Women’s Employment Situation in Iran”, Hamsahri, 22 April 2001. 115 See “Today’s 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 women’s authority at home has increased substantially compared to the past. 116 Kar, M., “Freedom Struggle and Iranian Women’s 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.

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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 one’s 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 women’s rights, such as the research association for women’s rights in Tehran, goru-e paguhestgaran-e massa‘el-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 Iran’s Joining the global Convention on Discrimination against Women”, Noruz, daily newspaper, 13 February 2002.

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Foreign Investment Protection in Saudi Arabia Jean-Benoît 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 DeGoyler’s 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 world’s 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-Benoît-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.

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Saudi Arabia’s 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 government’s 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 nation’s 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 East’s biggest project of the decade.5 Other major initiatives and infrastructure projects include the consolidation, in April 2000, of the country’s 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 projects6 (including the construction of four desalination plants) throughout the country by January 20087 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 signator y (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 (shari‘a). 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 (Qur’an),9 as well as in the deeds and sayings (Sunna)10 of the Prophet Mohammad. The Qur’an and the Sunna are considered to be primary sources of Islamic law, while the opinions of Islamic scholars reached

9 Muslims believe that the Qur’an is the sacred will of God as expressed to the Prophet Mohammad. The precepts and tenets of the Qur’an 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 10th century, some three centuries after the emergence of Islam. The number of hadith was enormous.

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by consensus (idjima)11 and reasoning by analogy (qiyas)12 are its secondary sources. Together, they are known as the shari‘a.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 shari‘a. This growing body of legislation, together with the shari‘a form the nation’s legal system. 1.2 The four orthodox schools of Sunni jurisprudence The shari‘a 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, Shafi’i 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 nation’s 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 Qur’an and the Sunna of the Prophet.15 • Power in Saudi Arabia is based on justice, consultation (al shura) and equality in accordance with the shari‘a.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 Qur’an 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 Qur’an or Sunna. The process of legal reasoning by analogy has been encouraged in recent times, so as to adapt the shari‘a 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. 16 Article 5 of the Fundamental Law.

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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 independent18 and when exercising their functions, judges are only subject to the authority of the shari‘a without restricting it to the Hanbali doctrine.19 1.4 Recent developments in Saudi law While the legislative provisions of the Qur’an 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 Qur’an 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 shari‘a. 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 shari‘a and such regulatory regime. 1.5 General contractual principles under the shari‘a The shari‘a firmly upholds the binding force of contract, the freedom to negotiate terms (provided such terms do not violate divine law20 ) 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 shari‘a 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 shari‘a.22 In accordance with Chapter IV, Verse 29 of the Holy Qur’an, 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 18 19 20

Ibid. Article 44 of the Fundamental Law. Article 46 of the Fundamental Law. The shari‘a 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.

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not allowed to take another’s 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 shari‘a 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 shari‘a, namely, expropriation by the state and the enforcement of a final judgment against a debtor’s property. With respect to the former, the shari‘a 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 shari‘a 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 shari‘a courts and the Board of Grievances25 ) 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 shari‘a.26 In principle, therefore, the shari‘a 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 arrangements as he can succeed in negotiating, provided that he observes the principles of good faith and fair dealing enshrined in the shari‘a 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 shari‘a (according to some interpretations) considers it unjust to deprive a claimant of his rights. Various statutes, such as the Labour and Workmen’s 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 24 25 26 27

Ibid. Ibid. See Section 2.3 below. Al-Samaan, p. 57. 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 Shari‘a courts Shari‘a 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

Shari‘a 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 shari‘a 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 shari‘a judges. Labour disputes, commercial disputes and all disputes involving the Saudi government or any of its agencies are excluded from the shari‘a 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.

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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 agency’s 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 shari‘a-trained. There are scrutinising committees that act as appeal courts; each committee is made up of three senior judges. Unlike the shari‘a 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 shari‘a 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 shari‘a courts and the Board of Grievances, there are several quasijudicial 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 shari‘a 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 shari‘a 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 shari‘a 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 Committee’s 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.

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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 shari‘a. 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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judicial authorities (i.e. shari‘a courts and the Board of Grievances) and quasijudicial 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.

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• 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 government’s 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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(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 intervene 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 shari‘a principles no distinction is drawn between treaties, state contracts and private contracts. In addition, in sub-paragraphs (1) and (2), the Arabic term “nízam” , which means “law”, is a specific reference to the Foreign Capital Investment Law, whereas the term “anzima” , which is the plural of “nízam”, appears to be a more general reference to the laws and regulations of Saudi Arabia.

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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 shari‘a 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 multijurisdictional 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 shari‘a. 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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4.2 Arbitration under the shari‘a 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 shari‘a.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 Workmen’s Regulations and the Commercial Agencies Regulations, which authorised recourse to arbitration, subject to certain restrictions. The Arbitration Law36 and the implementing regulations of 198537 (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).

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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 shari‘a 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 shari‘a courts, (ii) the Board of Grievances, and (iii) the Committee for the Settlement of Labour Disputes. 39 Article 5 of the Arbitration Law. 40 Article 7 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. 42 Article 3 of the Arbitration Law. 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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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.

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Enforcement of Foreign Arbitral Awards46 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 shari‘a 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 shari‘a 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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treatment to judgments rendered by the Saudi courts, provided that nothing in the foreign judgment contravenes the mandatory principles of shari‘a 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 Corporation52 ) 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).

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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 58 59 60

OPIC Convention, Article 3(c)(ii). Ibid, Article 3(c)(iv). See Appendix II for more details. The ICSID Convention entered into force on 14 October 1966.

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The preamble to the Convention emphasises the use of ICSID’s 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 ICSID’s 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.

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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 shari‘a 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 shari‘a law. The 1983 Convention distinguishes between public order and morality on the one hand and shari‘a 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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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, retailing68 and commission agents69 ). 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.

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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 IsraeliPalestinian 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

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latest initiative, on the face of it, appear to break this mould. The Quartet’s “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 twostate 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; Lustick’s 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.

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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 selfdetermination 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 people’s collective right to self-determination as secured by the state of Israel. In recent weeks, Israel’s Prime Minister is reported to be demanding that the Palestinians should renounce the right of return to areas inside Israel’s 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 people’s 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 people’s 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. Bell’s 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, ‘Don’t hold your breath’, The Guardian, 16 April 2003. 9 Ari Shavit, ‘PM: Iraq war created an opportunity with the Palestinians we can’t 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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(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 naïve children, lacking knowledge of the real world’s 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 naïveté 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 13 14 15 16

Ibid, p. 35. Ibid, p. 2. Ibid, p. 5. Ibid, p. ix. 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.141157.

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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 International 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 ‘IsraeliPalestinian 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 Ní Aoláin and Colin Harvey, ‘The Frontiers of Legal Analysis: Reframing the Transition in Northern Ireland,’ 66:3 The Modern Law Review 2003, pp. 317345, 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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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 selfdetermination” and past human rights violations) is equally negative. Bell’s 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 Bell’s 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 selfdetermination” 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). Sharon’s 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.

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terms of a fit between peace and justice, with his presentation of the Jewish people’s rights to self-determination being exercised inside the 1948 border. When combined with Sharon’s 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 Israel’s co36 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, Israel’s 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 à la répression des infractions graves aux Conventions de Genève 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 à la répression 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, ‘Let’s 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.

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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 abuses46 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 45 46 47

Human Rights Watch, ‘Belgium: Anti-Atrocity Law Limited,’ supra n. 44. See Lynn Welchman, supra n. 3; compare Bell, supra n. 3, pp. 116-117. Summarised by Bell at pp. 271-272. 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 Italy’s 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 Pappé 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 TRC55 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 Pappé, ‘Facing up to Ethnic Cleansing’ The Guardian, 19 September 2002. 55 Jenkins, ‘Amnesty,’ supra n. 48, pp. 376-386.

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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 TRC’s proposals regarding material reparations for victims were eventually rejected by the ANCled 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 Reconstruction 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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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 country’s 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 63 64 65

Ibid, p. 453. Ibid, pp. 453-454. Ibid, p. 456. 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).

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departure” and include both retributive68 and restorative69 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 one’s 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 Pappé 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 Pappé, 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 Prettitore’s 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 SubCommission decision 2001/122, by Mr Paulo Sérgio Pinheiro, paras. 22-41. 79 Prettitore, supra n. 79, p. 15.

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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 IsraeliPalestinian 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 Bell’s 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 Dayton’s terms.83 Prettitore provides updated figures of nearly a million returnees to pre-war homes and an upbeat 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 Bell’s assessment of the failure of the metabargain 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 IsraelPalestine, 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 81 82 83

Ibid, p. 10. Ibid, pp. 16-17. Bell, supra n. 3, pp. 248-250. 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 Bell’s 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 one’s home.” In his 2002 report on “The return of refugees’ or displaced persons’ properties”, Paulo Sérgio 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 one’s 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 over whelming 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, Pinheiro’s conclusion is that what needs careful study is the “disjunction between existing standards and the reality on the ground.”92 Khasawneh’s earlier report similarly raised the contrast between the recognition of restitutio in integrum as the remedy for 84 Ibid, p. 256. 85 See Terry Remple’s 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.

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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. Khasawneh’s 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 Bell’s 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 SubCommission 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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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 Loizidou’s 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 nonpecuniary damage97 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 bicommunality.”98 With Turkey refusing to implement the Loizidou decision, the AttorneyGeneral of the Republic of Cyprus invited a group of international legal experts to provide an opinion on Turkey’s 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 Loizidou’s 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).

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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 IsraelPalestine, in Bell’s 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

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‘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). 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.” Ibid, at p. 14. 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. 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.” The Economist, 8 March 2003 reported that some 70,000 people (“nearly half the North’s population”) demonstrated in favour of EU entry.

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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).

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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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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 Pappé 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 Greenwood’s 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 Pappé, supra n. 55.

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Sectarianism and the Rejection of Tawteen: Lebanon and the Palestinian Refugees Nur Masalha*

Lebanon’s 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 Lebanon’s 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 countr y. 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. Mary’s 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 d’Etudes 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).

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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 1012 per cent of the population5), 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 overestimate 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 Shi’ites from border villages have received Lebanese citizenship, partly with sectarian considerations in the forefront, because Christian and Muslim Sunni and Shi’ite 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 (nonrefugee population) became integrated into the economic and social life of 4 Yezid Sayigh, Armed Struggle and the Search for State: The Palestinian National Movement, 19491993 (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 L’Orient 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-Az’ar, 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 Countr y 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.

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Lebanon and by all account contributed to the country’s 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 Lebanon’s 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 Lebanon’s 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-Sha’b 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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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 UNRWA’s 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 Lebanon’s 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 Lebanon’s 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 Lebanese22 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.

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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 Shi’ite 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 Shi’ism was also keen to preserve Lebanon’s sectarian system. The rise to power within the Lebanese state of a particular leadership of the Shi’ites 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, 19521958), 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 Lebanon’s 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 Lebanon’s 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 Lebanon’s 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. 28 Hudson, ‘Palestinians and Lebanon: The Common Story’, p. 247. 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. 31 Hudson, ‘Palestinians and Lebanon: The Common Story’, p. 248. 32 Ibid, pp. 247-248. 33 Ibid, pp. 249-250.

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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 Lebanon’s 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. Campdwelling 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 war y 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 Lebanon’s 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. 37 Zureik, The Palestinian Refugees and the Peace Process, p. 38. 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). 39 Peteet, Lebanon Palestinian Refugees in the Post-War Period, p. 10.

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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 Beirut’s 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, UNRWA’s 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 country’s domestic and regional circumstances. Although in the post-1948 period the country’s 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). 41 Zureik, The Palestinian Refugees and the Peace Process, p. 41. 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. 43 Hudson, ‘Palestinians and Lebanon: The Common Story’, p. 258. 44 Rosemary Sayigh, ‘An Uncertain Future for the Palestinians in Lebanon’, Middle East International, 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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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, Lebanon’s 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 annually47), 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 muchneeded 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. UNRWA’s 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, UNRWA’s registered refugees qualifying as hardship cases in Lebanon are the highest in any of UNRWA’s 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 47 48 49 50

Zureik, The Palestinian Refugees and the Peace Process, pp. 37-39. Al-Natur, Awda’ al-Sha’b al-Filastini fi Lubnan. Schiff, Refugees unto the Third Generation, p. 52. Rosemary Sayigh, ‘Palestinians in Lebanon’, p. 28. 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.

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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 – UNRWA’s 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 Hussein’s 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 Lebanon’s 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. 54 Hajjaj, Palestinian Refugees in Lebanon, p. 24.

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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 Lebanon’s fate was determined by the PLO’s involvement in Lebanese politics under the umbrella of Kamal Jumblatt’s left-wing coalition. Lebanon’s 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 deuxième bureau, the Lebanese internal security services. In 1969, as the Palestinian movement in Lebanon gathered force, refugees in the camps threw the deuxième bureau and its network of informers out of the camps.59 The PLO 55 Hudson, ‘Palestinians and Lebanon: The Common Story’, p. 252. 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.

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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 Shi’ite 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 PLO’s “state within a state” further destabilised the tottering compromises built across inter-communal political, religious and economic fractures, contributing to Lebanon’s 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 Lebanon’s 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 Lebanon’s 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 61 62 63

Ibid. Peteet, Lebanon Palestinian Refugees in the Post-War Period, p. 4. Al-Natur, Awda’ al-Sha’b al-Filastini fi Lubnan. Hudson, ‘Palestinians and Lebanon: The Common Story’, p. 247.

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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, Lebanon’s implicit goal with regard to the refugees has been not only to marginalise them socially, economically and politically64 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 Israel’s 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 postOslo 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. 66 Hajjaj, Palestinian Refugees in Lebanon, p. 4. 67 Rosemary Sayigh, ‘Palestinians in Lebanon’, p. 27 68 Supra, n. 20.

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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 Lebanon’s 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 Lebanon’s

69 70 71 72

Hudson, ‘Palestinians and Lebanon: The Common Story’, p. 246. Supra, n. 20. Hajjaj, Palestinian Refugees in Lebanon, p. 4. Said, ‘The Obligations of Host Countries to Refugees Under International Law: The Case of Lebanon’, p. 123; Zureik, The Palestinian Refugees and the Peace Process, p. 34. 73 Hajjaj, Palestinian Refugees in Lebanon, p. 4.

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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 Sha’aban (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 Lebanon’s 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 Lebanon’s 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 Lebanon’s 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 Sha’aban, Official Policy Towards the Palestinian Refugees in Lebanon (London: Palestinian Return Centre, 2000). 77 Peteet, Lebanon Palestinian Refugees in the Post-War Period, pp. 10-17. 78 Said, ‘The Obligations of Host Countries to Refugees Under International Law: The Case of Lebanon’, p. 124. 79 Peteet, Lebanon Palestinian Refugees in the Post-War Period, pp. 10-17. 80 Ibid. 81 Said, ‘The Obligations of Host Countries to Refugees Under International Law: The Case of Lebanon’, pp. 124 and 139.

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“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 Mu’ammar 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 entr y 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. 84 Said, ‘The Obligations of Host Countries to Refugees Under International Law: The Case of Lebanon’, p. 137. 85 Al-Nahar (Beirut), 18 November 1996. 86 Supra, n. 20.

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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 Lebanon’s rejection of refugee settlement in Lebanon.89 Many Lebanese have continued to blame Palestinians for a catastrophic civil war and the collapse of the country’s 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 Lebanon’s total population and mostly Sunni Muslim, would disrupt Lebanon’s delicate political balance, which is based on power sharing along sectarian lines.90 Moreover, since the end of the civil war the Lebanese government’s desire for order in the refugee camps and its determination to prevent Arafat’s Fateh faction of the PLO from reasserting control over Lebanon’s 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 PLO’s stamp of approval at Oslo,91 it is quite possible that Lebanon’s 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 88 89 90 91 92

Peteet, Lebanon Palestinian Refugees in the Post-War Period. Al-Natur, Awda’ al-Sha’b al-Filastini fi Lubnan. Supra, n. 20. Ibid. Rosemary Sayigh, ‘Palestinians in Lebanon: Harsh Present, Uncertain Future’, p. 35. Supra, n. 20.

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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, Lebanon’s 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, Lebanon’s representatives of Arafat’s 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 Arafat’s supporters staged a rally in the camp in late October, a Lebanese military court sentenced Fateh’s 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 Arafat’s 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 Lebanon’s 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 93 94 95 96

Hudson, ‘Palestinians and Lebanon: The Common Story’, p. 257. Supra, n. 20. Ibid. Hilal Khashan, ‘Palestinian Resettlement in Lebanon: Behind the Debate’, in Palestinian Refugees: Background Papers (Montreal, Quebec: Centre d’études arabes pour le développement, 1995).

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President Emile Lahoud repeatedly reiterated Lebanon’s 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 Israel100; 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. 98 Zureik, The Palestinian Refugees and the Peace Process, p. 42. 99 Supra, n. 20. 100 Ibid. 101 Hussein Sha’aban, ‘What do the Palestinians in Lebanon Say’, Majalatt al-Dirasat al-Filastiniyya, No. 19 (Summer 1995), pp. 176-177.(Arabic).

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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.

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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 state’s 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.

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unparalleled elsewhere in the Middle East, to some extent as a result of Lebanon’s 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 Lebanon’s 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 Authority’s 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 widelypropagated 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 Qaddumi’s statement in al-Nahar, 18 November 1996. 111 Statement issued by Palestinian official news agency WAFA (Gaza), 3 December 1999.

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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 world’s 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.

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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-à-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 Lebanon’s 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/palcamps/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 Pappé, I., Britain and the ArabIsraeli Conflict, 1948-51, London, Macmillan Press, 1988.

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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 ArabIsraeli war (1947-1948), the United Nations Economic Survey Mission (ESM) estimated that 726,000 refugees6 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-à-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.

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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 Émigrés.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 Lebanon’s 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 Chehab’s 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.” 14 Natour, supra n. 6 at p. 40. 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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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 194921: (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 agency’s 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 Takkenberg’s 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 UNHCR’s 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. 25 Takkenberg, supra n. 5 at p. 70.

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The first census of Palestinian refugees was carried out in 1948 by the League of Red Cross Societies.26 It was later followed by UNRWA’s census during 19501951.27 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 Directorate’s 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 UNRWA’s 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 27 28 29 30 31 32 33 34 35 36 37

Ibid, pp. 163-164. Ibid, p. 70. Ibid. Natour, S., “The Palestinian Refugees in Lebanon”, (May 2000), www.group194.org/english/ studies/default.asp (accessed: 30/10/02) at p. 5. Davis, supra n. 14 at p. 159. Natour, supra n. 28 at p. 5. Davis, supra n. 14 at p. 159. Ibid. Ibid. Natour, supra n. 6 at p. 35. Ibid, p. 36. Davis, supra n. 14 at p. 160.

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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 UNRWA’s 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 Lebanon’s 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

38 Natour, supra n. 28 at p. 5. 39 Takkenberg, supra n. 5 at p. 80. 40 Cervenak, C.M., “Promoting Inequality: Gender-Based Discrimination in UNRWA’s 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. 42 Davis, supra n. 14 at p. 162. 43 Edminster, S., Trapped on All Sides: the Marginalization of Palestinian Refugees in Lebanon, Immigration and Refugee Services of America, 1999 at p. 5. 44 Davis, supra n. 14 at p. 162. 45 Natour, supra n. 6 at p. 44.

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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 PLO’s 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 Shi’ite areas of southern Lebanon.50 Amid resentment and confrontation, the PLO’s 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 PLO’s official headquarters in the Lebanese capital were closed down following the organisation’s 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 47 48 49 50

Ibid. Takkenberg, supra n. 5 at p. 146. Ibid. Edminster, supra n. 42 at p. 5. 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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vulnerability reached a peak with the massacres of Sabra and Shatila in 1982.52 More death and destruction were in store for Palestinians when Arafat’s loyalists were encircled in Tripoli in 1983 by the Syrian-backed Fateh-intifada. Arafat’s brief resurgence in Tripoli stimulated the PLO’s confrontation with Syria on Lebanese soil. With Syria’s backing, the Amal Shi’a militia then pursued the “war of the camps” from 1985 to 1987.53 Thousands have perished during the war54 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 PLO’s failure, in the past, to press the Lebanese government into formalising the legal status of Palestinians, namely by issuing national legislation implementing the Agreement’s 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 Shi’a 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 Lebanon’s 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 Da’uq (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. 55 Takkenberg, supra n. 5 at p. 146. 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.

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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 countries64 closed their doors to Palestinians in fear of encouraging their emigration. With no safehaven 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 UNRWA’s shortcomings and the PLO’s betrayal. UNRWA’s shortcomings UNRWA’s 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 Israel’s 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. 62 Natour, supra n. 6 at pp. 47-49. 63 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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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 UNRWA’s 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 UNRWA’s Peace Implementation Program (PIP). PIP’s aim was to demonstrate the benefits of the peace process by subsidising relevant projects in all of UNRWA’s 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 “UNRWA’s 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 UNRWA’s money-squandering drives include the US$170,000 invested by the agency’s 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$90,00071. In addition, officials within the U.S. government claimed that Wolfgang Plaza, a former director of UNRWA’s 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. 68 Edminster, supra n. 42 at p. 17. 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. 71 Natour, supra n. 6 at p. 139.

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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 [UNRWA’s 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. PLO’s 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 selfdetermination – 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 PLO’s drought began when Gulf countries cut their funding to the organisation in response to Yasir Arafat’s stance on Iraq’s 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 Bank78 at the expense of Palestinians in Lebanon and elsewhere in the Diaspora. This 72 Edminster, supra n. 42 at p. 20. 73 Report of the Office of Internal Oversight Services/Investigations Section on the Assessment Mission in the UNRWA Field Office in Lebanon, p. 2. 74 Edminster, supra n. 42 at p. 20. 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 Israel’s part.” 77 Natour, supra n. 28 at p. 22. 78 Edminster, supra n. 42 at p. 17.

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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: It’s 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 PA’s responsibility but UNRWA’s.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 PA’s 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, Lebanon’s 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. 82 Edminster, supra n. 42 at p. 16. 83 Ibid, p. 12.

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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 country’s 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 84 85 86 87

Edminster, supra n. 42 at p. 11. Ibid. Edminster, supra n. 42 at p. 9. 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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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 UNRWA’s decaying services for their education. In fact, Lebanese legislation restricts access to the country’s 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 Union’s 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, UNRWA’s dilapidated facilities do not provide the type of environment conducive to studying. Financial constraints meant more reduction in UNRWA’s 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 88 Natour, supra n. 28 at p. 12. 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-Taw’i Lil Falastiniyin Min…Lubnan”, 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. 95 Natour, supra n. 28 at p. 30. 96 Edminster, supra n. 42 at p. 19.

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Lebanon. Although secondary education is not part of UNRWA’s mandate, it has been provided by the agency because of the “special needs of Palestinians” in Lebanon.97 Despite UNRWA’s 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-à-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 98 99 100 101 102 103 104

105

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. Natour, supra n. 28 at p. 30. Ibid. Ibid pp. 20-21. Natour notes how “all government employees must be Lebanese citizens who have been naturalized for at least 10 years.” Hallak, supra n. 7 at p. 346 cited in Natour, supra n. 6 at p. 37. PHRO, supra n. 16 at p. 1. Natour, supra n. 6 at p. 164. 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. Natour, supra n. 28 at p. 27.

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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 Lebanon’s 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 Lebanon’s 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 agency’s 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. 108 Natour, supra n. 6 at p. 184. 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. 112 EMHRN, supra n. 89 at p. 22. 113 Natour, supra n. 28 at p. 21. 114 Ibid, p. 28. 115 Edminster, supra n. 42 at p. 13.

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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 UNRWA’s 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 Hamid’s family. Nasser, a registered UNRWA refugee, was married to a NonRegistered Palestinian (NR). His wife had thus no access to UNRWA’s 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 UNRWA’s 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. 119 Edminster, supra n. 42 at p. 18. 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 UNRWA’s services), www.prc.org.uk (accessed: 31/03/2003). 122 EMHRN, supra n. 89 at p. 24.

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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 government’s 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-à-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. 124 Natour, supra n. 28 at p. 35. 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.” 130 Edminster, supra n. 42 at p. 14. 131 Palestinian Return Centre, “Dokhul al-‘Amm al-Sabe’ ‘ala al-karar al-kadi bi‘adam al-samah lillaji’in 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.

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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 ElZaatar, 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 ElBarajneh 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 evictions138 have marked Lebanon’s 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 postwar 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 (Qurayy’a), 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 UNRWA’s fields of operations (56 per cent of 376,472 Palestinians registered with UNRWA in the year 2000 or 210,715 refugees). 135 Edminster, supra n. 42 at p. 14. 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.” 137 Edminster, supra n. 42 at p. 16. 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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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 Lebanon’s 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 Lebanon’s 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). (author’s translation).

Although the end result – namely the exclusion of Palestinians from the law’s 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 Lebanon’s civil war. This negation of tawteen was then formally incorporated in Lebanon’s 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-à-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 “‘Qurayy’a 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. 142 Natour, supra n. 28 at p. 13. 143 Law 296 of April 21, 2001 cited in Chaaban, supra n. 138 at p. 277. 144 Sayigh, supra n. 57 at p. 43.

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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 camp’s only cemetery lacked burial space. Unable to purchase land themselves, Palestinians sought the help of Sidon’s 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. 146 Natour, supra n. 28 at p. 13. 147 Chaaban, supra n. 138 at p. 117. 148 Sayigh, supra n. 144 at p. 2. 149 Palestinian Return Centre, “Qarar Man ‘al-Tamaluk fi Lubnan Yamna ‘al-Laji’in 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 government’s 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, Libya’s leader, Mu’ammar 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 Lebanon’s 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 Lebanon’s 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

151 EMHRN, supra n. 89 at p. 20. 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 Libya’s treatment of Palestinians, see Takkenberg, supra n. 5 at p. 166. 154 Natour, supra n. 28 at pp. 9-10. 155 Edminster, supra n. 42 at p. 13. 156 Ibid, p. 14. 157 Takkenberg, supra n. 5 at p. 166. 158 Natour, supra n. 28 at p. 10. 159 Edminster, supra n. 42 at p. 13.

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3 LEBANON’S PERSPECTIVE ON TAWTEEN AND ITS OBLIGATIONS VIS-À-VIS PALESTINIAN REFUGEES As discussed in section 1, several factors have contributed to the deteriorating status of Palestinians in Lebanon. While UNRWA’s shortcomings and PLO’s desertion added to the hardship of Palestinian refugees, Lebanon’s curtailment of their civil rights only reinforced their suffering and codified their marginalisation. With minor exceptions, Lebanon’s 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 Lebanon’s current stance vis-à-vis Palestinians and will outline a few alternative temporary solutions which were suggested as a way out of this impasse. Lebanon’s 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 statemembers of the League. It is binding on the ratifying states although neither the Protocol nor the Arab League’s 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 reser vations to its first three Articles. 162 The reservations to Articles 2 and 3 do not negatively impact the rights of Palestinian refugees in Lebanon. Lebanon’s reservation on Article 1 has, however, qualified their right to work by stating that their employment opportunities will depend on Lebanon’s 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 Lebanon’s 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 UNRWA’s 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.

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UNHCR’s 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 UNRWA’s mandate, see Takkenberg, supra n. 5 at pp. 2832, 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., Akehurst’s 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 individual’s 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 Palestinian’s 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 covenant’s 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 Lebanon’s 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 HRC’s 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-à-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.

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[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 individual’s 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 Lebanon’s economy. Hence, Lebanon cannot use Article 2(3) as a pretext to evade from its obligations vis-à-vis Palestinians. He concludes that their right to work, as per Article 6, is effectively violated by Lebanon.174 Albeit an isolated interpretation of Lebanon’s obligations vis-àvis 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 noncitizens.

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 obser vations on Lebanon’s 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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Lebanon’s stance towards Palestinians According to Rosemary Sayigh, there are two declared policies vis-à-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 public’s 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 powersharing system. Combined, these elements render the Palestinians a convenient scapegoat for Lebanese ills, further tilting the balance against tawteen. Lebanon’s confessional system is particularly relevant in explaining the public’s stance. Current estimates put the number of Palestinians in Lebanon at 370,000, or 10 per cent of the population183, a majority of whom are Sunni Muslims. Their naturalisation is thus viewed as “threatening” Lebanon’s precarious sectarian balance. This explains the explicit rejection of tawteen in the Taif agreement. It also accounts for the discrepant views on tawteen among Lebanon’s 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 country’s stability, by inflating their number up to 600,000.185 What is claimed to be a heavy 176 Sayigh, supra n. 57 at p. 42. 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. 182 Edminster, supra n. 42 at p. 10. 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. 185 Natour, supra n. 28 at p. 9.

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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. 187 Sayigh, supra n. 144 at p. 1. 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 temporar y 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., “Israel’s 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.

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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 séjour. 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 Israel’s 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-à-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 Lebanon’s 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 UNRWA’s financial difficulties and the PLO’s 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 UNHCR’s mandate and the 1951 Convention, either by reviving the UNCCP (see n. 165) or including them in the 1951 Convention and the UNHCR’s Statute. The debate over international protection is, however, beyond the scope of this article. Suffice it to quote Takkenberg’s conclusion that since UNRWA was “not provided with an explicit protection mandate in respect of Palestinian refugees”, those residing within UNRWA’s 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, Lebanon’s 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.

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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 agency’s 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.

BIBLIOGRAPHY Books: Al-Zabin, S., Palestinian Refugees Situations in Lebanon, Ramallah, Palestinian Diaspora and Refugee Centre (SHAML), 2000. Arzt, D.E., Refugees Into Citizens: Palestinians and the End of the Arab-Israeli Conflict, New York, Council on Foreign Relations, 1997. 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. Davis, U., Citizenship and the State: A Comparative Study of Citizenship Legislation in Israel, Jordan, Palestine, Syria and Lebanon, Reading, Ithaca Press, 1997. Edminster, S., Trapped on All Sides: the Marginalization of Palestinian Refugees in Lebanon, Immigration and Refugee Services of America, 1999. Fisk, R., Pity The Nation: The Abduction of Lebanon, New York, Simon & Schuster, 1990. Hallak, H., La position du Liban sur la question palestinienne, Beirut, PLO Research Centre, 1982. Khashan, H., Palestinian Resettlement in Lebanon: Behind the Debate, Montreal, Montreal Studies on the contemporary Arab world, Inter-University Consortium for Arab Studies, 1994. Malanczuk, P., Akehurst’s Modern Introduction to International Law, London and New York, Routledge, 7th ed., 1997. Morris, B., The Birth of the Palestinian Refugee Problem, 1947-1949, Cambridge, Cambridge University Press, 1987. Natour, S., Les Palestiniens du Liban : la Situation Sociale, Economique et Juridique, Beirut, Dar Al Taqqadom Al Arabi, 1993. Pappé, I., Britain and the Arab-Israeli Conflict, 1948-51, London, Macmillan Press, 1988. 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. Said, E., Peace and Its Discontents: Essays on Palestine in the Middle East Peace Process, New York, Vintage Books, 1996. Shlaim, A., Collusion Across the Jordan: King Adbullah, the Zionist Movement and the Partition of Palestine, Oxford, Clarendon Press, 1988. Takkenberg, L., The Status of Palestinian Refugees in International Law, Oxford, Clarendon Press, 1998.

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Journals: Aql, A., “Palestinian Refugees of Lebanon Speak”, XXV, no.1, Journal of Palestine Studies (Autumn 1995), 54. 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. Cervenak, C.M., “Promoting Inequality: Gender-Based Discrimination in UNRWA’s Approach to Palestine Refugee Status”, 16 Human Rights Quarterly (1994), 300. 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. Said, W., “The Palestinians in Lebanon: the rights of the victims of the PalestinianIsraeli Peace Process”, 30, no.2, Columbia Human Rights Law Review (Spring 1999), 315. Salam, N.A., “Between Repatriation and Resettlement: Palestinian Refugees in Lebanon”, XXIV, no.1, Journal of Palestine Studies (Autumn 1994), 18. Sayigh, R., “Palestinians in Lebanon: Harsh Present, Uncertain Future”, XXV, no.1, Journal of Palestine Studies (Autumn 1995), 37. Sayigh, R., “Palestinian Refugees in Lebanon: Implantation, Transfer or Return?”, Vol. VIII, no. 1, Middle East Policy (March 2001), 94. Shiblak, A., “Residency Status and Civil Rights of Palestinian Refugees in Arab Countries”, XXV, no.3, Journal of Palestine Studies (Spring 1996), 36. 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. Internet: 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). ‘Abd-al-Samad, N., “Investigative Report: Palestinians in Lebanon”, (April 1995), www.arts.mcgill.ca/MEPP/PRRN/papers/majallah.html (accessed: 31/10/02). 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). 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). 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). 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). Drake, L., “Palestinian Refugees in Lebanon: ‘The Walls of History are Closing in’”, (Feb. 2000), www.washington-report.org/backissues/0100/0002011.html (accessed: 31/10/02). Ess, K., “Israel’s continued domination and destruction in the Bethlehem area”, (February 2003), www.electronicintifada.net/v2/article1162.shtml (accessed: 29/05/03). Euro-Mediterranean Human Rights Network, “Refugees Also Have Rights” (EMHRN), (September 2000), www.euromedrights.net/English/Download/Palrefugees_en.pdf (accessed: 28/10/02). Haddad, S., “The Palestinian Predicament in Lebanon”, (September 2000), www.arts.mcgill.ca/MEPP/PRRN/papers/haddad2.html (accessed: 31/10/02).

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Immigration and Refugee Board – Canada, “Lebanon Reconstruction and Security”, http://www.irb.gc.ca, (accessed: 20/05/03). Indict Sharon, “The Sabra and Shatila Massacres”, www.indictsharon.net (accessed: 15/ 04/03). 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). 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). 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). Natour, S., “The Palestinian Refugees in Lebanon”, (May 2000), www.group194.org/ english/studies/default.asp (accessed: 30/10/02). 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). Palestinian Human Rights Organization (PHRO), “Tactics toward change”, Hokook Newsletter, Issue 5, (December 2002), www.palhumanrights.org/engpub6p1.htm (accessed: 31/05/03). Palestinian Human Rights Organization (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). 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). 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). Palestinian Return Centre, “Wafat fata filistini bimarad al-talassimiya fi mokhayam burj elshemali bisabab takaloss khadamat al-unrwa” (Death of Palestinian youth from thalassemia in the Burj el-Shemali camp due to a reduction in UNRWA’s services), www.prc.org.uk (accessed: 31/03/03). Palestinian Return Centre, “Dokhul al-‘Amm al-Sabe’ ‘ala al-karar al-kadi bi‘adam al-samah lillaji’in 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). Palestinian Return Centre, “Qarar Man ‘al-Tamaluk fi Lubnan Yamna ‘al-Laji’in alFalastiniyin min Dafn Mawtahum” (The decision prohibiting Palestinians from owning property prevents Palestinians from burying their dead), www.prc.org.uk (accessed: 30/04/03). 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). Quigley, J., “Compensation for Palestinian Refugees: Initial Comments”, (July 1999), www.arts.mcgill.ca/MEPP/PRRN/quigley.html (accessed: 06/02/03). Rekacewicz, P., “La diaspora palestinienne dans le monde”, (February 2000), http:// www.monde-diplomatique.fr/cartes/refugiesdiasporapaldpl2000 (accessed: 18/04/ 03). 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).

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Sayigh, R., “Palestinian Refugees in Lebanon” (July 1996), www.arts.mcgill.ca/MEPP/ PRRN/papers/sayigh.html (accessed: 28/10/02). Shepherd, S., “Health and the Palestinian Refugees in Lebanon”, (February 2001), www.caabu.org/publications/refugee_health.html (accessed: 28/10/02). 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). 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). Arab League Resolutions and Documents: League of Arab States, 1991, Resolution 5093, CSPHAC. Protocol on the Treatment of Palestinians in the Arab States, 11 September 1965 (Casablanca Protocol). U.N. Resolutions and Documents: Assistance to Palestine Refugees, GA Res. 302 (IV), 8 December 1949, para.7 [hereinafter Resolution 302]. Concluding observations of the Committee on the Elimination of Racial Discrimination: Lebanon, 30/03/98, CERD/C/304/Add.49, at para. 24. Concluding observations of the Human Rights Committee: Lebanon, 01/04/97, CCPR/C/79/ Add.78, at para. 29. Convention Relating to the Status of Refugees (1951). Convention Relating to the Status of Stateless Persons (1954). International Convention on the Elimination of All Forms of Racial Discrimination (1965). International Covenant on Civil and Political Rights (1966). International Covenant on Economic, Social and Cultural Rights (1966). (First) Optional Protocol to the International Covenant on Civil and Political Rights (1966). Palestine – Progress Report of the United Nations Mediator, GA Res. 194(III), 11 December 1948 (hereinafter Resolution 194). Protocol Relating to the Status of Refugees (1967). Report of the Office of Internal Oversight Services/Investigations Section on the Assessment Mission in the UNRWA Field Office in Lebanon, p.2. Second periodic report of States parties due in 1988: Lebanon, 22/11/96, CCPR/C/42/Add.14, at para. 8. Statute for the United Nations High Commissioner for Refugees, GA Res. 428 (V), 14 December 1950. 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, UN doc. A/1905, para. 16. UNRWA, “UNRWA in figures: figures as of 31 December 2002”, (31 December 2002), http://www.un.org/unrwa/pr/pdf/uif-dec02.pdf (accessed: 07/04/02). UNRWA, “Statistical Profiles”, (2000), http://www.un.org/unrwa/pr/pdf/figures.pdf (accessed: 30/04/03). Universal Declaration of Human Rights (1948). Case law: Nicaragua v. USA (Merits), ICJ Rep. 1986, 14. Other sources: Al-Shahal, N., “Al-Tahjir al-Taw’i Lil Falastiniyin Min … Lubnan”, Al-Hayat (10 November 2002), Issue No. 14479 at p.18.

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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). Shipler, D.K., “Piles of Rubble Were the Homes of Palestinians”, The New York Times, (The New York Times Company, 3 July 1982) Section 1, p. 1, Column 2.

ANNEX MAP OF PALESTINIAN REFUGEES IN LEBANON – 1999

Source: 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). Note: Sour is the Arabic word for “Tyre”, Saida for “Sidon”, Trablous for “Tripoli”.

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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.

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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. 4 Interim Agreement, Annex IV, Articles I.2 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 Giva’at Zeev, Labour Court Appeal 30050/98.

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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. Ha’aretz, 4 October 2001.

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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-of9 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. 12 Interim Agreement, Annex IV, Articles I.2 and III.2.

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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 Giva’at 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 Giva’at 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 Giva’at Zeev, Israeli Labour Court Appeal 30050/98.

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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 Giva’at 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 Giva’at 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 Giva’at 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 Giva’at Zeev Labour Court Appeal 30050/98.

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recognised borders of Israel. How then could the Attorney-General argue that Israeli citizens who worked in Giva’at 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 Court’s 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 77441984, No. 18 4.6b(a). 17 Subhi Hamed et al v. Municipality of Giva’at Zeev, Israeli Labour Court Appeal 30050/98. 18 Subhi Hamed et al v. Municipality of Giva’at Zeev, Israeli High Court of Justice 6961210/03.

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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 AttorneyGeneral 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 “nonresidents”. The area is closed to “non-residents” who do not have a permit, but remains open to Israeli “residents” (Israeli Military Order 378).

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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 Giva’at Zeev, Israeli Labour Court Appeal 30050/98. Subhi Hamed et al v. Municipality of Giva’at 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 Military Order 622. Israeli Military Order 663. 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.

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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 year’s survey are Dr. Tarek Riad and Dr. Hatem Gabr.

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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 abovementioned 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 authority’s 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 Authority’s 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 nonEgyptian, 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 daughter’s 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 plaintiff’s 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 shari‘a. 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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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 shari‘a which provides for the necessity of the husband’s 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 Shari’a are the principle source of legislation”, and that this means that a legislative act may not be in contradiction with the Islamic shari‘a 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 shari‘a 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 shari‘a. The Court also stressed that the Muslim shari‘a 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 shari‘a. Therefore the ruler may, within those parameters, use his discretion without

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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 Qur’an 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 Qur’an which is definitive in its certainty. Moreover, the Prophet’s 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 Qur’an and the Prophet’s 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 shari‘a 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 shari‘a, 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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– 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 employee’s 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 Employer’s 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 employee’s 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 People’s 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 holder’s 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 People’s 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 bank’s 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 bank’s 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-à-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.

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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 taxpayer’s dues were still time-barred after four years, as before, the State’s 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 State’s 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 (Société 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 documentar y 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 Directorate’s 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 Directorate’s 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 Directorate’s inquiry and that document is seized if the taxpayer refuses to sign the aforementioned report. The public attorney’s authorisation must be sought if the concealed document is deposited outside the taxpayer’s office and a report must be established on any attack or confrontation against the Directorate’s employees (Article 7).

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Penalties Any act constituting a tax evasion as defined in Article 2 is punished by one month’s 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 Director’s 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 Ministry’s employees indicated by a Minister’s 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 Minister’s 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 Minister’s 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 fulltime 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 Hassaké, 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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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 Chamber’s representatives at the Federation and the auditor, approves the budget, discusses the activity of the Chamber, ratifies the Board’s 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 Board’s 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 Board’s 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 Chamber’s budget and carr y 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 Chamber’s assets and what is puzzling is that an elected body like the Board should be hanging on the Minister’s 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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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 Board’s meetings are not legal without the presence of the Minister’s 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 Board’s 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 Minister’s approval (Articles 19/3, 20/c and 32/2). (4) Dissolution Here again, the Federation’s 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 WOMEN’S 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 mother’s 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 mother’s nationality. • Article 15/4 regarding the woman’s 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 child’s 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 Stateowned 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.

209 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).

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 AttorneyGeneral 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.

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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 (30.6.200431.1.2005), 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. 1 For full text, see post, Part III, pp. 391-417.

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• 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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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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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 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.

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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.

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 contrar y 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.

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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 international organisations active in the sphere of humanitarian international 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. 2 Bar Association Journal, p. 1898, 2002.

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Amongst the Centre’s 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) Amman’s Mayor and members of the Mayoral Council and employees therein; (d) Heads of Provincial Councils, their members and employees therein. 2.5 Court of Cassation Decision No. 2425/2000 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 3.1 Court of Cassation Decision No. 910/1999 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. 4 Bar Association Journal, p. 1514, 2002. 5 Bar Association Journal, p. 1898, 2002. 6 Bar Association Journal, p. 246, 2002.

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3.2 Court of Cassation Decision No. 910/1999 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

3.3 Court of Cassation Decision No. 3396/1999 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

3.4 Court of Cassation Decision No. 2677/1999 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

3.5 Court of Cassation Decision No. 772/2000 The Ministry of Education is responsible for the safety of the pupils during their presence in the school’s buildings and, accordingly, the said Ministry is held liable for the fall of a pupil from the school’s 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. 7 8 9 10

Bar Association Journal, p. 460, 2002. Bar Association Journal, p. 819, 2002. Bar Association Journal, p. 1756, 2002. Bar Association Journal, p. 772, 2002.

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4.2 Among this Act’s 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. 4.3 Court of Cassation Decision No. 1172/1999 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

4.4 Court of Cassation Decision No. 310/2000 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. (3) The Provisional Amending Companies Act No. 40 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. (8) The Provisional Amending Companies Act No. 74 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. 11 Bar Association Journal, p. 327, 2002. 12 Bar Association Journal, p. 840, 2002.

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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. 5.4 Court of Cassation Decision No. 2486/1999 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

5.5 Court of Cassation Decision No. 1965/1999 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. 6.3 Court of Cassation Decision No. 3378/1999 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

6.4 Court of Cassation Decision No. 2462/1999 There are no provisions in the Commercial Law that regulate letters of guarantee; accordingly, the Court shall derive them through inference, judicial precedents, 13 Bar Association Journal, p. 348, 2002. 14 Bar Association Journal, p. 452, 2002. 15 Bar Association Journal, p. 1668, 2002.

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jurisprudence and the dictates of justice and equity. The Court of Cassation has settled the principle that the guarantor bank’s obligation is independent from the guarantee’s 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 8.1 Court of Cassation Decision No. 428/2000 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 No (major) changes have occurred under this title.

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:

16 Bar Association Journal, p. 1718, 2002. 17 Bar Association Journal, p. 106, 2002.

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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

Jordan’s 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

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11.2 Court of Cassation Decision No. 2426/1999 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

11.3 Court of Cassation Decision No. 2426/1999 The Jordanian–Syrian 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 12.1 Court of Cassation Decision No. 2549/1999 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 court’s 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 No (major) changes have occurred under this title.

18 Bar Association Journal, p. 1788, 2002. 19 Bar Association Journal, p. 1788, 2002. 20 Bar Association Journal, p. 433, 2002.

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ANNEX I 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48.

The Provisional Amending Securities Act No. 67 for 2002. The Provisional National Centre for Human Rights Act No. 75 for 2002. The Provisional Amending Companies Act No. 74 for 2002. The Provisional Amending Orphans’ Fund Development Foundation Act No. 73 for 2002. The Provisional Amending Passengers’ Public Transportation Act No. 72 for 2002. The Provisional Visual and Audio Media Act No. 71 for 2002. The Provisional Amending Municipalities Act No. 70 for 2002. The Provisional Amending Jordanian State Universities Act No. 69 for 2002. The Provisional Amending Formation of the Ordinary Courts Act No. 68 for 2002. The Provisional Amending Oversight of Insurance Activities Act No. 67 for 2002. The Provisional Amending Roads Act No. 66 for 2002. The Provisional Amending Tourism Act No. 65 for 2002. The Provisional Amending Public Electricity Act No. 64 for 2002. The Provisional National Committee for Humanitarian International Law Act No. 63 for 2002. The Provisional Amending Jordanian State Universities Act No. 62 for 2002. The Provisional Amending Civil Retirement Act No. 61 for 2002. The Provisional Amending Labour Act No. 60 for 2002. The Provisional Amending Postal Savings Fund No. 59 for 2002. The Provisional Amending Urban and Rural Development Bank No. 58 for 2002. The Provisional Amending Civil Defence Act No. 75 for 2002. The Provisional Amending Jordanian Investment Corporation Act No. 56 for 2002. The Provisional Amending Securities Act No. 55 for 2002. The Provisional Amending Public Health Act No. 54 for 2002. The Provisional Amending Traffic Act No. 53 for 2002. The Provisional Amending Juvenile Act No. 52 for 2002. The Provisional Amending Labour Act No. 51 for 2002. The Provisional Amending Protection of National Production Act No. 50 for 2002. The Provisional Competition Act No. 49 for 2002. The Provisional Jordanian Media Act No. 48 for 2002. The Provisional Amending Jordanian Maritime Authority No. 47 for 2002. The Provisional Transportation of Goods by Road Act No. 46 for 2002. The Provisional Amending Education Act No. 45 for 2002. The Provisional Agriculture Act No. 44 for 2002. The Provisional Jordanian Institute of Diplomacy Act No. 43 for 2002. The Provisional National Commission for Industrialization Act No. 42 for 2002. The Provisional Exemption from Public Funds Act No. 41 for 2002. The Provisional Amending Companies Act No. 40 for 2002. The Provisional Amending Jordanian Medical Council No. 39 for 2002. The Provisional Amending Immovable Property Provisions Act No. 38 for 2002. The Provisional Amending Municipalities Act No. 37 for 2002. The Provisional Amending Enforcement Act No. 36 for 2002. The Provisional Appended Act to the General Budget Act No. 35 for 2002. The Provisional Amending Jordanian State Universities Act No. 34 for 2002. The Provisional Amending Penal Act No. 33 for 2002. The Provisional Formation of Military Courts No. 32 for 2002. The Provisional Military Criminal Procedure Act No. 31 for 2002. The Provisional Military Penal Act No. 30 for 2002. The Provisional Amending Orphans’ Fund Development Foundation Act No. 29 for 2002.

226 49. 50. 51. 52. 53.

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The Provisional Amending Aqaba Special Economic Zone Act No. 28 for 2002. The Provisional Amending Parliamentary Elections Act No. 27 for 2002. The Provisional Amending Civil Procedure Act No. 26 for 2002. The Provisional Amending Public Sales Tax No. 25 for 2002. 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 Act No. 12 for 2002. 66. The Provisional Amending Juvenile Act No. 11 for 2002. 67. The Provisional Amending Professional/Vocational Licensing for the City of Amman Act No. 10 for 2002. 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. 73. The Provisional Amending Companies Act No. 4 for 2002. 74. The Provisional Amending Accounting Bureau Act No. 3 for 2002. 75. The Provisional Appended Act to the General Budget Act No. 2 for 2002. 76. The Provisional Appended Act to the General Budget Act No. 1 for 2002.

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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 PalestinianIsraeli 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 Israel’s 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.

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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

2 CONSTITUTIONAL LAW 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 Sharon’s 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).

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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 Israel’s 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

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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.

231

Lebanon Nayla Comair-Obeid*

Lebanon’s 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 Lebanon’s 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.

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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 Lebanon’s 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, Lebanon’s 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 EuroMediterranean Free Trade Area. Law No. 403 dated 5 June 2002 ratified Lebanon’s 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 right1 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.

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for compensation but not to the right of forcing the failing vendor to transfer the estate’s 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 provisions2 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 son’s 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 purchaser’s 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 mother’s 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 contract’s 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 contract’s 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 will’s 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 appellant’s name. Later on, a dispute arose between them on the apartment’s 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 wife’s 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 wife’s 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 file4 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 restitution5 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 dispute’s issue within the mission fixed to the arbitrator. This judgment gave rise to the doctrine’s 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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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 jurisprudence6 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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4 CONSTITUTIONAL AND ADMINISTRATIVE LAW 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 7/5/20037 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 State’s 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 Maronite’s 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.

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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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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

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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 agent’s 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.

242

Libya Mustafa El-Alem*

1 CONSTITUTIONAL AND ADMINISTRATIVE LAW 1.1 Reorganisation of the Secretariat of the General People’s 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 People’s 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 people’s committee is equivalent to a ministry. The secretary of each committee is equivalent to a minister. According to the resolution of the General People’s Congress2 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 People’s Congress is the highest legislative authority.

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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 nontechnical 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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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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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.

5 PUBLIC INTERNATIONAL LAW 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.

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• 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.

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.

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(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 carr y 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 shari‘a 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 shari‘a law or the law. The purpose of revision is to correct the violation of the shari‘a 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 shari‘a 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 shari‘a 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 shari‘a 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 shari‘a 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 candidate’s 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 Council’s 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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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).

261

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 Université Jésuite Saint Joseph, Beirut (1985); member of the Beirut Bar Association and the International Bar Association.

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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 Kuwait’s 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 country’s 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 telecommunications 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 Kuwait’s Petrochemical Industries Company (PIC). Both the five-year plan and sector-specific privatisation efforts still await approval by Kuwait’s 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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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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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, Hungar y, 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.

265

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 penalties6 and the general conditions for the operation of the Saudi Arabian Securities and Exchange.7 Additionally, Articles 1 and 2 include definitions of * 1 2 3 4 5 6 7

LLB; LLM; Attorney of the Law Firm of Salah Al-Hejailan. Articles 4 to 19 of the CML. Articles 26 to 30 of the CML. Articles 31 to 38 of the CML. Article 39 of the CML. Articles 49 to 50 of the CML. Articles 55 to 67 of the CML. Articles 20 to 25 of the CML.

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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 requirements, 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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(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 jurisdiction10 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 shari‘a-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 manipulation 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 law’s 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 shari‘a. 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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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 nonfinancial 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; 13 14 15 16 17

Article 5 of the AML. Article 6 of the AML. Article 7 of the AML. Article 12 of the AML. Article 16 of the AML.

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(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 shari‘a, 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.

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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 nonSaudi 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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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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United Arab Emirates Terence Witzmann* and James Abbott †

1 CONSTITUTIONAL AND ADMINISTRATIVE LAW 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-General’s 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 Industr y 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 CoC’s business, a Businesswomen’s 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 ship’s 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 charterer’s 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 Telecommunications Network and has outlined its essential mission – to provide telecommunications 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 company’s 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 party’s 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 insurer’s 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 UAE’s 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 There have been no significant developments in the relevant period.

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

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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 company’s 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 owner’s 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 owner’s 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 There have been no significant developments in the relevant period.

10 CIVIL PROCEDURE AND EVIDENCE (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 Committee’s central role is to study the problem of commercial 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

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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.

12 PUBLIC INTERNATIONAL LAW There have been no significant developments in the relevant period.

13 PRIVATE INTERNATIONAL LAW There have been no significant developments in the relevant period.

14 ENVIRONMENTAL LAW There have been no significant developments in the relevant period.

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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 Lincoln’s 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.

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– 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 16th and 17th 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. This Law by Decree No. 47 for 2002 was passed on 23 October 2002 (Official Gazette No. 2554, dated 30 October 2002).

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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 nonpopular 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 year’s report (see Yearbook, Vol. 8 (2001-2002), p. 221). This Decree No. 36 for 2002 was passed on 8 October 2002 (Official Gazette No. 2551, dated 9 October 2002).

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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 This Law by Decree No. 37 for 2002 was passed on 9 October 2002 (Official Gazette No. 2551, dated 9 October 2002). (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 This Law by Decree No. 39 for 2002 was passed on 12 October 2002 (Official Gazette No. 2552, dated 16 October 2002). (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 12 October 2002 (Official Gazette No. 2552, dated 16 October 2002). 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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(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 This Law by Decree No. 44 for 2002 was passed on 22 October 2002 (Official Gazette No. 2553, dated 23 October 2002). (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 This Law by Decree No. 45 for 2002 was passed on 22 October 2002 (Official Gazette No. 2554, dated 30 October 2002). (11) Law by Decree No. 50 for 2002 Establishing the General Organisation for the Protection of Marine Wealth, Environment and Natural Life This Law by Decree No. 50 for 2002 was passed on 23 October 2002 (Official Gazette No. 2553, dated 23 October 2002). (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 This Law by Decree No. 51 for 2002 was passed on 23 October 2002 (Official Gazette No. 2553, dated 23 October 2002). (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 This Law by Decree No. 52 for 2002 was passed on 23 October 2002 (Official Gazette No. 2553, dated 23 October 2002). (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 This Law by Decree No. 53 for 2002 was passed on 23 October 2002 (Official Gazette No. 2553, dated 23 October 2002). (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 This Law by Decree No. 56 for 2002 was passed on 23 October 2002 (Official Gazette No. 2554, dated 30 October 2002).

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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 No. 2552, dated 16 October 2002). (3) Decree No. 39 for 2002 Establishing and Organising the Land Registration Body This Decree No. 39 for 2002 was passed on 14 October 2002 (Official Gazette No. 2552, dated 16 October 2002). (4) Decree No. 40 for 2002 Amending Certain Provisions of Decree No. 5 for 1973 Concerning Public Holdings This Decree No. 40 for 2002 was passed on 20 October 2002 (Official Gazette No. 2553, dated 23 October 2002). (5) Decree No. 41 for 2002 Concerning the Regulation of the General Organisation for Protection of Marine Wealth, Environment and Natural Life This Decree No. 41 for 2002 was passed on 23 October 2002 (Official Gazette No. 2554, dated 30 October 2002).

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ANNEX III LAWS ISSUED AND PASSED IN 20031 (1) Law No. 1 for 2003 Approving a Government Loan for US$500 million through the Issuance of Government’s 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 This Law No. 3 for 2003 was passed on 7 April 2003 (Official Gazette No. 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 This Law No. 4 for 2003 was passed on 7 April 2003 (Official Gazette No. 2577, dated 9 April 2003). (5) Law No. 5 for 2003 Approving the Regulations (Law) Concerning Agriculture Quarantine between Gulf Cooperation Council Countries This Law No. 5 for 2003 was passed on 7 April 2003 (Official Gazette No. 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).

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.

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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 Government’s Tendering Council This Decree No. 3 for 2003 was passed on 7 January 2003 (Official Gazette 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 This Decree No. 10 for 2003 was passed on 12 January 2003 (Official Gazette 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).

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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 year’s Yearbook) have been successfully implemented providing an increased sophistication to the judicial system in Oman which caters for the growing complexity of Oman’s 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.

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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 Authority’s 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 telecommunications 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 anticompetitive 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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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.

4 CIVIL PROCEDURE AND EVIDENCE Last year’s 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 shari‘a 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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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 Court’s 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 Majesty’s and the National Security Council’s 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 CONSTITUTIONAL AND ADMINISTRATIVE LAW 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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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 ser vice, 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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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 shareholder’s will); and (b) The Capital Market Authority’s 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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the Code of Corporate Governance reflects European thinking on how to best protect the public’s investment in companies. The salient features of the Code of Corporate Governance for open jointstock 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 company’s 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 company’s disclosure policies; monitoring the company’s compliance with regulator y requirements; approving delegation of power; reviewing material transactions with related parties and the company’s performance; approving and then implementing the company’s 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 company’s audit plans, check for and detect financial fraud, oversee the company’s internal audit function, oversee the adequacy of the internal control systems, review the annual and quarterly financial statements of the company, review the company’s risk management policies and review specific transactions with related parties; (d) The Code of Corporate Governance also imposes certain limitations upon the company’s 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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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 appointment. 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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procedures ordained by each company’s 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 Oman’s 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 nonexecutive 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 Oman’s 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 holder’s 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 monetar y 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 Law’s 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 Oman’s 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 Ministr y 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 holder’s audited accounts must be presented to the Director-General of

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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 Ministr y 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 Oman’s 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 Oman’s 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 Oman’s 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 amendments 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 custom’s 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 employer’s 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 interpretation 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.

11 PUBLIC INTERNATIONAL LAW 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 Sultanate’s 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 Sultanate’s succession to the 1952 Rome Convention on Damages Caused by Foreign Aircraft to Third Parties on Land.

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1 CONSTITUTIONAL AND ADMINISTRATIVE LAW 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 President’s 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, Sana’a, 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.

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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 Republic’s 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 People’s National Congress, under the President of the Republic, won a landslide victor y: 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 Sana’a, 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 Council’s responsibilities as regards care of the Press, Civil Society Organs and the Local Authority; • the Council’s assessment of the prevailing policies and the Auditor’s 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 Council’s meetings, debates and discussions; casting of votes and minutes thereof; • General-Secretariat and responsibilities thereof: the Council’s 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 Council’s 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 shari‘a 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 responsibilities 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 Statement 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 agreements 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 cooperation 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 agreement 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, measurements 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: The President of the Republic promulgated Law No. 29/2002, in connection 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 (Sa‚r) 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 ŒIsa 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 Ma’rib/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/Sana’a. (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 carr y 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 District’s 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 WOMEN’S 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 women’s 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 husband’s 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 father’s 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 The President of the Republic promulgated Law No. 23/2003, amending 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 Minister’s 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; Women’s 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 Minister’s 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 Commission’s Office in Yemen with the cooperation of the United Nations Development Programme’s 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 legislation for juvenile judiciary, where the provisions of the Child’s 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 guideline 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 Child’s 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, Sana’a 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 jurisdiction; monetary claims of suits; jurisdiction as to type of suit; jurisdiction 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; summar y 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 The President of the Republic issued Republican Resolution No. 252/2002, 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, Sana’a and in certain other Provinces: • Five new Juveniles’ Courts in addition to two already established in Sana’a and Aden, in Ta’iz, Hudiadah, Ibb, Dhamar and Hadramawt, with assistance from UNICEF. • Five new Traffic Courts in Sana’a, Aden, Ta’iz, Hudaidah and Hadhramawt. • Two new Taxation Courts in Sana’a 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 The President of the Republic issued Republican Resolution No. 156/2003, amending Republican Resolution No. 46/1993, in connection with the Organisational Regulations of the Ministr y of Legal Affairs, the main amendments being the following. By Section 1 there shall be established a General Department for Agreements, 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 The President of the Republic issued Republican Resolution No. 253/2002, 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 The President of the Republic issued Republican Resolution No. 166/2003, 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 shari‘a, 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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(2)

(3) (4)

(5) (6) (7) (8) (9) (10)

(d) banks and banking transactions; and (e) the trading in property, imports, wholesale and retail business. 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. Customs and taxes exemptions; encouragement of local products and exports. 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, Industr y 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. Rules regarding the registration and exemptions of projects. Administrative protests, and settlement thereof. Investment companies’ investments disputes. Obligations of investors and owners of projects as well as violations and penalties. Transitional provisions. 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 Sana’a 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 The President of the Republic promulgated Law No. 21/2003, amending paragraph 1 of section 2 of the Yemeni Central Bank Law No. 14/2001. According to the amendment, the Central Bank’s 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) (iv) (v) (vi) (vii) (viii) (ix)

Registration, management and planning of water resources. Utilisation of water. Rights and licences for water. Preservation of water and protection thereof from pollution. Protection of rainfall. Safeguards and penalties. 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 Law’s 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 The President of the Republic promulgated Law No. 34/2002, in connection 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 Law’s 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 The President of the Republic promulgated Law No. 33/2003, in connection 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.

341

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.

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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, 1215, 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 judiciar y 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 women’s 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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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 Parliamentar y 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. Juba‘i 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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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 sanitar y 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.

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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 197920 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. Juba‘i 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 256261 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.

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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 defines‘usr 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.

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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 years30 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 27 28 29 30 31 32 33

See the text in MQ, 1375, p. 173; RR, No. 14943-4.4.1375. See Vol. 6 of this Yearbook, pp. 335-336. MQ, 1381, pp. 1026-1027; RR, No. 16817-29.8.1381. MQ, 1371, pp. 291-312; RR, No. 13848-2.7.1371. MQ, 1376, pp. 682-683; RR, No. 15370-9.9.1376. MQ, 1381, p. 1173; RR, No. 16857-18.10.1381. MQ, 1381, pp. 1249-1250; RR, No. 16875-9.11.1381. For example, see MMMSI, Session 230-22.3.1381, in RR, No. 16692.

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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.

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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 person’s 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 6487); Section 7: settlement of matters relating to a deceased person’s 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.

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Morocco Michèle Zirari-Devif *

La production législative a été importante ces derniers mois. Du 1er juillet 2002 au 30 juin 2003, des textes relativement nombreux ont été publiés dans divers domaines. Certains étaient en préparation depuis des années, c’est le cas notamment des lois sur l’environnement, de la loi sur les petites et moyennes entreprises, du code de procédure pénal. L’année a été marquée par les attentats terroristes du 16 mai 2003, à Casablanca. Dans le domaine du droit cela a eu pour effet d’accélérer le vote de la loi antiterroriste qui a été immédiatement promulguée et publiée et d’accélérer également l’entrée en vigueur du nouveau code de procédure pénale.

1 LIBERTÉS PUBLIQUES 1.1 Code des libertés publiques Une modification du code des libertés publiques, réclamée depuis longtemps par la société civile, est intervenue en 2002. Le code des libertés publiques est constitué par trois dahirs du 15 novembre 1958 consacrés respectivement au droit d’association, aux rassemblements publics et à la presse. Les libertés reconnues par le code avaient été restreintes en 1973, par des textes qui, notamment, aggravaient les sanctions prévues pour la violation des prescriptions légales. De plus, alors que la constitution des associations, la tenue d’une réunion publique et la publication d’un périodique n’étaient pas soumises à une autorisation mais à une simple déclaration, la pratique administrative tendait à transformer cette déclaration en autorisation, en refusant parfois indéfiniment la délivrance du récépissé de déclaration, sans en donner les motifs. Mais alors que l’on espérait l’élaboration de nouveaux textes mieux adaptés à la réalité actuelle, le législateur s’est contenté d’apporter des modifications aux trois dahirs de 1958. Ces modifications ont été introduites par trois lois: la * Professeur à la faculté des sciences juridiques, économique et sociales de Rabat-Agdal. Université Mohammed V, Rabat, Maroc.

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loi n° 75-00 modifiant et complétant le dahir n° 1-58-376 du 15 novembre 1958 réglementant le droit d’association, 1 la loi n° 76-00 modifiant et complétant le dahir n° 1-58-377 du 15 novembre 1958 relatif aux rassemblements publics2 et la loi n° 77-00 modifiant et complétant le dahir n° 1-58-378 du 15 novembre 1958 formant code de la presse et de l’édition. 3 Les modifications consistent essentiellement dans: • la réduction des sanctions prévues en cas de non respect des dispositions législatives; • l’instauration de mesures de nature à obliger l’administration à délivrer récépissé de la déclaration; • en ce qui concerne les associations, l’accroissement de leur capacité et une procédure plus transparente pour leur reconnaissance d’utilité publique; • la diminution des pouvoirs de l’administration au profit du pouvoir judiciaire, pour les interdictions et les suspensions, et la nécessité pour l’administration de motiver ses décisions pour permettre un recours aux intéressés ; • dans le code de la presse, l’insertion d’une nouvelle disposition pénale sanctionnant l’incitation à la discrimination, à la haine et la violence en raison de la race, de l’origine, de la couleur ou de l’appartenance ethnique ou religieuse, commise par la voie de la presse ou par tout autre moyen (article 39 bis). 1.2 Haute autorité audiovisuelle Toujours dans le domaine des libertés, le 31 août 2002 est créée la Haute autorité audiovisuelle.4 Bien que les droits individuels et collectifs énumérés au titre premier de la Constitution (parmi lesquelles figure «la liberté d’expression sous toutes ses formes»), soient du domaine de la loi (article 46 de la Constitution), cette création a eu lieu par dahir. La Haute autorité est composée d’un conseil supérieur de la communication audiovisuelle et d’une direction générale de la communication audiovisuelle. Le conseil supérieur est chargé notamment de donner son avis au Roi, au gouvernement et au parlement sur toutes les questions concernant l’audiovisuel, de veiller au respect de la réglementation, de l’expression pluraliste des courants de pensée et d’opinion. Le conseil peut recevoir des plaintes des organisations politiques, syndicales et des associations. Il instruit ces plaintes, et leur donne la suite requise.

1 Promulguée par dahir n° 1-02-206 du 23 juillet 2002 (12 joumada I 1423), Bulletin officiel du 17 octobre 2002, p. 1062. 2 Promulguée par dahir n° 1-02-200 du 23 juillet 2002 (12 joumada I 1423), Bulletin officiel du 17 octobre 2002, p. 1060. 3 Promulguée par dahir n°1-02-207 du 3 octobre 2002 (25 rejeb 1423), Bulletin officiel du 6 février 2003, p. 131. 4 Dahir n° 1-02-212 du 31 août 2002 (22 joumada II 1423), Bulletin officiel du 5 septembre 2002, p. 929.

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Le conseil est composé d’un président et de neuf membres: le président et quatre membres sont nommés par le Roi, deux membres sont nommés par le Premier ministre, un par le président de la chambre des conseillers et un par le président de la chambre des représentants. La direction générale de la communication audiovisuelle regroupe les services administratifs et techniques nécessaires au fonctionnement de la Haute autorité. 1.3 Suppression du monopole de l’Etat en matière de radiodiffusion et de télévision Concernant également l’audiovisuel, le 10 septembre 2002, un décret loi prévoit la suppression du monopole de l’Etat en matière de radiodiffusion et de télévision.5

2 ORGANISATION JUDICIAIRE On relève un texte important sous cette rubrique: la loi formant code des juridictions financières. On mentionnera également une loi réorganisant l’établissement chargé de la formation des magistrats. 2.1 Loi n° 62-99 formant code des juridictions financières6 La constitution de 1992 a été révisée en 1996.7 Entre autres modifications, la révision