Middle Eastern Law

On 7 November 2021, Abu Dhabi, the largest of seven emirates that form the United Arab Emirates, announced the passing of a new personal status law for non-Muslim foreigners. The law carries forward a series of recent legal reforms that aim at providing greater legal certainty for the country’s large expatriate population. The law’s novelty lies in the fact that it combines aspects of substantive and international family law. It is significant also because it introduces civil marriage – albeit only for non-Muslim foreigners – into the country’s domestic family law regime. While generally welcomed as possibly easing judicial procedure and court proceedings, the new legislation also raises several questions, especially as regards the law’s application alongside the Emirati conflict-of-laws rules.

Mesopotamia – the land between two rivers – was historically perceived as a freshwater rich region in the arid Arabian Peninsula. Despite the intense seasonal and yearly fluctuations of the flow of Euphrates and Tigris, their water was the basis for the advance of Neolithic and Bronze Age civilizations such as the Hattian and Hittitian cultures in Anatolia, the Assyrian culture in Northern Mesopotamia, the Babylonian culture in central Mesopotamia and the Sumerian culture in Southern Mesopotamia. While not new to the desert regions of Syria and Iraq, freshwater scarcity is a rather recent issue on the banks of Euphrates and Tigris, as is the international dimension of freshwater distribution and utilization. Significant international tension over the water of Euphrates and Tigris did not occur before the 1970s, when the first large dams were constructed on the Euphrates.
Large dams impact rivers unlike any other freshwater development. They change the most essential characteristic of a river: its flow. While early dams were too small to form reservoirs extensive enough to significantly affect a river’s flow, technological advances in the early 20th century enabled humans to build dams large enough to fundamentally alter a river’s flow regime. Dams of such scale are generally referred to as ‘large dams’.1 The first dam that could be described as a large dam in this sense is the Hoover Dam built in the United States on the Colorado River in the 1930s. Construction on the first large dam in the Euphrates-Tigris river system, the Turkish Keban Dam on the Euphrates, began in 1966. Syria followed shortly after, in 1968, and took up construction of the Tabqa Dam on the Euphrates. These dams and those subsequently erected on Euphrates and Tigris substantially altered the natural flow regime of Euphrates and Tigris and enabled the riparian States2 to noticeably influence the rivers’ flow. This potential to change the rivers’ flow is one of the core factors of the tensions over the water of Euphrates and Tigris.
Another key issue is the huge amount of freshwater the States will require to operate their irrigation and hydro-electric developments. The water demand of the Iraqi, Syrian and Turkish freshwater developments planned on the Euphrates are estimated to by far exceed the flow of the river and those of the Tigris will require close to its total flow. At the center of these developments, again, are dams. Thus, dams are at the heart of the dispute over the water of Euphrates and Tigris.
Therefore this contribution seeks to introduce the reader to the large dams built and planned on Euphrates and Tigris and the freshwater developments they supply, their impact on the rivers and specifically the regulation of such developments under international law. The contribution will first give an overview of the uses and impacts of large dam projects and the conflict over dams in the Euphrates-Tigris region. The second section will then discuss the extent to which large dam projects are regulated by international law. To further illustrate such regulation and its acceptance by the Euphrates-Tigris riparian States, specific dam projects constructed and planned on Euphrates and Tigris will be used as examples when discussing the international law on non-navigational uses of freshwater.

In this paper, I challenge the conventional wisdom that secular laws of the Turkish Republic have constituted a clear and absolute break from the Islamic laws of the country’s predecessor, the Ottoman Empire. Specifically, I discuss in detail the adoption of and amendments to the Turkish Civil Codes of 1926 and 2002, which govern various matters including family relations, marriage and divorce. A detailed analysis of family law provisions contained in both these Turkish Civil Codes demonstrates that although significant progress has been made toward gender equality, certain Islamic laws dealing with female sexuality survive in their entirety, and in contradiction to the general spirit of gender egalitarianism of the codes. I argue that this is not anomalous considering that revolutions are often built upon inherited politico-legal and social foundations, and thus often fail to completely eradicate the past.

In The Codification of Islamic Criminal Law in the Sudan, Olaf Köndgen offers an in-depth analysis of the Sudan´s Islamised penal codes of 1983 and 1991, their historical, political and juridical context, their interpretation in the case law of the Supreme  Court, and their practical application. He examines issues that arise in shari´a criminal law, including homicide, bodily harm, unlawful sexual intercourse (zina, liwat), unfounded accusation of unlawful sexual intercourse (qadhf), highway robbery (hiraba), apostasy (ridda), and alcohol consumption.

A common challenge when claiming damages under a commercial contract, and in partic-ular in complex transactions or projects and in respect to specific types of damag-es such as damages for delay, is the quantification of the damages suffered. These difficulties are frequently addressed by including a liquidated damage clause. Liq-uidated damage clauses provide that in case of a specific breach of contract a pre-defined amount of compensation shall be paid to the damaged party. Thereby, these clauses serve to simplify damage claims. Liquidated damage clauses, first de-veloped in common law jurisdictions, are frequently used today in the Middle East. Still, Middle Eastern jurisdictions such as the UAE have chosen a more reserved approach to liquidated damage clause. Article 390 UAE Civil Code governs the validity of agreements on liquidated damages un-der UAE Law. This clause affords the courts considerable discretion to amend the amount owed under a liquidated damage clause. This appears to challenge the very purpose of a liquidated damage clause. However, Article 390 UAE Civil Code can only be understood when considering the origin and principle sources of the UAE legal system.

Recommended Citation: George Somi, Syria under Pinheiro: Reformulating Syrian Domestic Law for Decentralized Reconstruction, 43 Brook. J. Int'l L. 717 (2018).
Available at: https://brooklynworks.brooklaw.edu/bjil/vol43/iss2/16

According to the United Nations High Commissioner for Refugees, since 2011, the Syrian conflict has generated roughly 5.4 million refugees, while approximately 6.5 million people are internally displaced within the country, making it the largest internally displaced population in the world. Rebuilding Syria’s infrastructure, homes, and businesses will be an immense task, with cost estimates ranging between $250–$350 billion USD. The Syrian government and the international community have already started to contemplate postwar reconstruction and even wartime reconstruction, despite the ongoing fighting. This Note operates under the assumption that the Syrian government of President Bashar al-Assad will, at a minimum, remain in charge of at least what has been termed “Useful Syria.” Furthermore, it recognizes that reconstruction is a process that begins during war and that the notion that Syria will be able to implement a grand, centralized reconstruction project after the war’s cessation is an unrealistic paradigm. It is imperative, then, that policymakers, negotiators, and lawmakers representing Syria’s warring parties debate and negotiate existing Syrian domestic law, which appears likely to persist in some form, in order to anticipate and accommodate the rights of displaced Syrians and Syrian refugees.

A proper investigation of the obstacles to Syrian refugees’ achievement of appropriate post-conflict relief and housing restitution necessitates an understanding of the flaws in Housing, Land, and Property rights in prewar Syria. Rapid urbanization and the proliferation of informal housing spurred by neoliberal government policies led to massive discontent in the country.

This Note analyzes the Principles on Housing and Property Restitution for Refugees and Displaced Persons (“Pinheiro Principles”) and argues that while they provide valuable contributions to an increased understanding of the needs of post-conflict societies, room may be allotted to tailor a more context-specific approach to remedying the rights of displaced Syrian persons and refugees. This Note proceeds to analyze and prescribe amendments and additions to existing Syrian domestic law so that it better conforms to the end goals of the Pinheiro Principles. Syria’s Local Administrative Law, Legislative Decree Law 107, if amended to democratize the institution of the Syrian governorship, could be an effective starting point that presents decentralization as a pivotal tool to empower sustainable reconstruction efforts for refugees and displaced persons. Its incorporation, alongside an amended version of Syria’s Public-Private Partnership Law, Legislative Decree Law 5, could safeguard against abuses directed against refugees’ and displaced persons’ rights under the Pinheiro Principles, strengthen ordinary Syrians’ voices in the deliberations concerning their country’s bottom-up reconstruction, and enhance and strengthen demoralized and underdeveloped local Syrian institutions.

Iris Agmon, "There are judges in Jerusalem and there were legislators in Istanbul: On the History of the Law called (mistakenly) 'The Ottoman Law of Family Rights'," Mishpaha ba-Mishpat, 8 (2017-18): 125-161 [in Hebrew]

ABSTRACT

This article was written following a ruling of the Israeli High Court of Justice on an appeal by a woman who asked to appoint on her behalf another woman to serve as an arbitrator in her marriage dispute. The court's discussions in the case referred to the question of legal continuity with the "Ottoman Law of Family Rights" of 1917. This article examines the circumstances in which it was legislated, arguing that both the concept of legal continuity, in the name of which two instances of the Sharia Courts rejected the petitioner's appeal, and the construction of legal continuity attributed to this Law are misconceived. The article explains the methodological importance of the historical context for understanding the meaning of the Family Law and the need to revise the common wisdom about this law. The Ottoman Family Law constituted an essential link in a series of Ottoman legal reforms in the 19th century, which sought to design a centralized and territorial legal system. The codification of family law was intended to complete the unification of the judicial system, to render it applicable to all the citizens of the Empire and to strengthen state control by constructing family patterns in accordance with the vision of Ottoman modernity. The British overturned this trend when they applied the Family Law on Muslims only, thereby contradicting their claim that they were continuing the Ottoman tradition. Analysis of the provisions relating to arbitration in marital disputes in the Ottoman Family Law, which lay at the centre of the decision of the High Court of Justice, serves as a point of departure for advancing the present argument, namely that the Ottoman law was originally intended to provide the state with legal tools for re-fashioning family patterns.

Between the 20th and the 21st centuries a dominant discourse on homosexuality spread in the Middle East: hundreds of fatāwā and articles on homosexuality were published, especially in religious websites and magazines. Moreover, several books on the same topic were published. These sources fashioned a dominant discourse which describes homosexuality as a perversion, as an against-nature act and as a terrible crime and sin. The same dominant discourse also appears in the judicial practice: in the same period many homosexuals have been condemned in Egypt, even though the Egyptian Penal Code does not criminalize homosexuality, by way of a law against the exploitation of prostitution.
The same anti-homosexuality discourse also appears in newspapers and it is shared by other institutional figures. This discourse is probably a reaction against a new born homosexual community, which started to become visible through the creation of websites and groups. The emergence of this community represented a fracture within the Middle East, where the binarism homosexuality/heterosexuality did not exist until very recently. Moreover, discrimination based on sexual orientation is an argument that has been addressed by the shadow reports of NGOs: these two elements created a backlash and influenced the emergence of an anti-homosexuality discourse.
Both fatāwā and verdicts use the same arguments on homosexuality, even though they are two radically different kinds of text: they both mention of the story of Lot, the argument of sexual transmitted diseases, they define homosexuality as a satanic temptation, as exogenous with regard respectively to the umma, the religious community, or to the nation-State.
Due to the presence of this dominant discourse, in a country where homosexuality is not criminalized according to any law, homosexuals are punished and a formally legal act is categorized as a form of fuğūr, or masculine prostitution. Moreover, homosexuals are excluded from the human rights discourse: in the judicial practice lawyers, even when activists for human rights, do not use this argument to represent the defendants, but only procedural arguments. Moreover, in June 2012 ‘Umar Shalabī, a diplomatic Egyptian representative to the UN Human Rights Council in Geneva, has called on: “Mr. Kiai [UN Special Rapporteur on freedom of peaceful assembly and association] not to undermine the credibility and legitimacy of his important work in the eyes of real people who actually need it, especially in regions where such concepts are rejected by both its Christian and Muslim inhabitants like the Middle East”, implicitly excluding homosexuality from the human rights discourse.
From the above, it seems clear that the representation of homosexuality as a perversion is a crosscutting cleavage in Egypt.

This book examines the phenomenon of ‘grand corruption’ in Kuwait and the pattern in the wider region.

Taking an interdisciplinary approach, the work places corruption in its sociological, political and economic context to explore the relationship between the characteristics of Kuwait as a state with an endemic corruption problem. It then focuses on laws and regulations as key problem-solving mechanisms. In doing so, it identifies, explores and assesses the existing counter-corruption laws and regulations in Kuwait in a broad socio-political-economic context. The work goes beyond doctrinal legal research, employing empirical methodology based on semi-structured interviews with elite politicians and professional experts from criminal justice and NGOs. These valuable and original insights are reflected upon throughout the study.

The grand corruption that permeates the tier of high-profile officials in Kuwait is replicated in many developing countries where accountability mechanisms regularly suffer from lack of enforcement. The appeal of this book is its application to numerous jurisdictions, and the GCC countries and Middle East in particular. It will be a valuable resource for academics, researchers and policy-makers working in the areas of financial crime and corruption.

Ataturk's declaration distills the Kemalist Revolution's message at large: the Turkish Republic must make a decisive break with its Islamic past in order to modernize and belong to the league of civilized nations. This message continues to be delivered in Turkey today. In fact, for ...