Islamic Shari’a in Theory and Practice

>Excerpts of the lecture on “Islamic Shari’a in Theory and Practice” presented to the College at Florham Library and PubliMind Poll of Fairleigh Dickinson University, April 5, 2010. The speaker was Professor Gabriel Sawma.. You may see the lecture in its entirety at the following link:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

It gives specific details on inheritance share among Muslims.

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

Shi’a Islam

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

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

2- Zaidi, mainly found in Yemen.

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

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

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

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

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

Who is Eligible to Participate in Ijma’ in Sunni Islam?

Hanafi: public agreements of Islamic jurists; Shafii: the agreement of the entire community and public at large; Maliki: the agreement among the residents of Medinat Rassul Allah (i.e. Medina); Hanbali: agreement and practice of Muhammad’s Companions.

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

Shi’a jurisprudence do not accept the qiyass; they replace it with reasoning “aql” or “ijtihad.”

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

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

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

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

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

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

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

Shi’a do not consider ‘urf as source of jurisprudence.

Gabriel Sawma, adjunct Professor at Fairleigh Dickinson University, admitted to the Lebanese Bar Association; Associate Member of the New York State Bar and the American Bar Associations. Author of “The Qur’an: Misinterpreted, Mistranslated, and Misread. The Aramaic Language of the Qur’an.” Expert Consultant on Islamic Shari’a in US Courts in matters related to Islamic divorce, Islamic banking and finance.

Email: [email protected] ; Tel. (609) 915-2237

>The Jihaz in Islamic marriages

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

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

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

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

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

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

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

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

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

Gabriel Sawma is a lawyer with Middle East background, professor of Middle East Constitutional Law, Islamic Shari’a, Arabic and Aramaic. Expert Consultant in matters related to recognition and enforcement of Islamic divorce, child custody, banking and finance in US courts. Admitted to the Lebanese Bar Association; Associate Member of the New York State Bar and the American Bar Associations. Editor in chief:
Email: [email protected]

Email: [email protected]

Tel. (609) 915-2237


>The Mahr Provision in Islamic Marriage Contracts

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

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

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

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

Should there be any questions regarding this topic or any topic that deals with Islamic Shari’a in the United States or in Europe, please email the author at [email protected] or [email protected]

Gabriel Sawma is a Professor of Middle East Constitutional Law, Islamic Shari’a, Arabic and Aramaic. He is an expert consultant on International Law, mainly Islamic divorce, inheritance, child custody, banking and finance. Admitted to the Lebanese Bar Association ; Associate Member of the New York State Bar Association and the American Bar Association. Editor of International Law Website: and author of the Aramaic language of the Qur’an: Email: [email protected]
Email: [email protected]

>Indian Divorce in U.S. Courts


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

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

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

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

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

The Doctrine of Comity

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

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

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

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

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

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

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

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

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

Email: [email protected]

>Islamic Divorce in U.S. Courts


Islamic Divorce Obtained in a Foreign Country

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

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

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

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

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

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

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

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

Gabriel Sawma is Professor of Middle East Constitutional Law and Islamic Shari’a. He is an expert on Islamic marriage contracts and Islamic divorce. Editor of an International Law website: Author of “The Qur’an: Misinterpreted, Mistranslated and Misread. The Aramaic Language of the Qur’an.” Author of an upcoming book on Islamic Divorce in US Courts. Email: [email protected]; [email protected]; tel. (609) 915-2237.

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

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

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

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

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

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

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

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

Immunity Under International Law

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Immunity of Head of State Under the Special Tribunals

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

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

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

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

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

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

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

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

The Iraq Tribunal Trying Saddam Hussein and Other Top Baath Leaders

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Beyond A Reasonable Doubt

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

©Copyright 2006 Gabriel Sawma Esq. all rights reserved.
For interviews about international law, or about the Scope and Nature of Immunity from Jurisdiction for Heads of State Under International Law, please contact the author. Tel 609-275-6321; Fax 609-275-0355 or Email: [email protected], or visit our web log at:
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>Public International Law and Organizations


Introduction to international law

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

The United Nations institutions and functions

Statute of the International Court of Justice (1945)

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

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

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

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

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

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

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

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

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

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

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

International Law – Intellectual Property: Includes the following:

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

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

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

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

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

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

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

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

International Law – Diplomatic and Consular Relations:

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

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


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

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

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

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

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

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

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

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

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

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

Limitations on the Effectiveness of Trademark Laws in the EU

>Case Study – Trade Mark

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

Article 6 of the Directive reads the following:

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

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

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


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

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

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

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

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

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

Article 4 of that law provides:

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

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

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

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

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

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

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

1) What are the criteria?

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

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

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

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

The Ruling

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

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

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

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

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

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


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

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