journal of transnational legal issues

Transcription

VOL. 1, ISSUE 2
AUGUST 2013
JOURNAL OF TRANSNATIONAL
LEGAL ISSUES
ARTICLES
A CASE STUDY IN EXTRADITION: THE ISIDORE CASE
KARL T. MUTH
BUSINESS FRANCHISE COMPLIANCE IN MAINLAND CHINA
PAUL KOSSOF
THE INTERNATIONALIZATION OF CONSTITUTIONAL LAW
USING VALUES TO BUILD AN AFRICAN JURISPRUDENCE AND DEVELOP A MORE INCLUSIVE BODY
OF INTERNATIONAL HUMAN RIGHTS LAW
LAUREN FIELDER
FEATURED ARTICLE
RECENT DEVELOPMENTS IN THE LEGAL DEBATE ON RELIGIOUSLY MOTIVATED CIRCUMCISION IN
GERMANY
JOHANNES SAAL
JOURNAL OF
TRANSNATIONAL LEGAL ISSUES
VOLUME 1, ISSUE 2
EDITOR-IN-CHIEF
PROF. ALEXANDER MORAWA
ASSISTANT EDITOR-IN-CHIEF
XIAOLU ZHANG-COENEN, J.D.
MANAGING EDITORS
PETER COENEN, LL.M.
PROF. LAUREN FIELDER
DR. KYRIAKI TOPIDI
SUPPORT EDITOR
UTA DIETRICH
BOARD OF EDITORS
PROF. CHANG WANG, CHINA UNIVERSITY OF
POLITICAL SCIENCE AND LAW; THOMSON
REUTERS
KARYN KENNY; UNITED STATES
DEPARTMENT OF JUSTICE
DR. CLOTILDE PEGORIER; UNIVERSITY OF
LUCERNE
GABRIEL ZALAZAR; UNIVERSITY OF LUCERNE
THOMAS DOUGHERTY; UNITED STATES
DEPARTMENT OF JUSTICE
PROF. MARLEEN ZOETEWEIJ-TURHAN,
OZYEGIN UNIVERSITY LAW SCHOOL
JONAS HERTNER; UNIVERSITY OF LUCERNE
DR. RIDDHI DASGUPTA, CAMBRIDGE
UNIVERSITY
ii
PREFACE
The second edition of the Journal of Transnational Legal Issues follows the tradition
established in its inaugural issue of combining contributions by established scholars and
articles authored by up-and-coming young researchers into a diverse and indeed colourful
compilation of cutting-edge contributions to the discourse on transnational legal studies.
Lauren Fielder, an assistant professor at the University of Lucerne School of Law, expands a
discourse on an area of comparative constitutional law, namely that in the African continent,
which has so far been vitally neglected or, if discussed at all, limited to a few examples,
usually dominated by South African jurisprudence. Fielder now takes us on the fascinating
journey of how African high courts consider each other’s jurisprudence in constitutional
matters (horizontal effect) and how they succeed in or fail to properly take into consideration
the jurisprudence of transnational regional institutions, especially the African human rights
body (vertical effect). Looking at politically charged rights, namely the rights to culture and to
gender equality, the author selects a fascinating topic but at the same time opens a Pandora’s
box of sorts: A jurisprudence of national or cultural diversity here collides oftentimes with a
transnational normative framework of human rights which, despite being Africanized to a
certain degree, still is sufficiently foreign to trigger conflict. The integration of information
from case law in jurisdictions as diverse as Botswana, South Africa, Uganda, Tanzania and
Benin Fielder encourages a regional human rights dialogue that would “create a body of law
that is distinctly African”.
Paul Kossof of the John Marshall Law School (Chicago) contributes a very practice-oriented
discussion of business franchise compliance in Mainland China. After a – necessary –
disclosure of the inherent differences between the Chinese legal tradition and that in other
countries, the author dissects a broad range of legal sources including national legislation,
administrative measures and opinions as well as jurisprudence from the Supreme People’s
Court as well as other, regional appeals and trial level courts and arrives at the conclusion that
the Chinese framework for business franchising is indeed “relatively comprehensive”.
Despite differences, the existence of adequate administrative guidelines and the relatively
adequate experience of courts especially in the main hubs of international business (Beijing
and Shanghai) should be considered an encouraging starting point for international business
joint ventures.
iii
Karl T. Muth of Northwestern University, also an advisor to Julian Assange while in the
United Kingdom, presents an astonishing case study of the attempted extradition of Mr.
Isidore from the Dominican Republic, requested and pursued by federal prosecutors in the
United States for a drug deal allegedly having taken place in New Mexico. This factual set-up,
which resembles a movie script, points towards a broad range of both legal and diplomatic
issues which the author diligently and with a sense of humor describes and analyzes for the
benefit of students, prosecutors and defense attorneys alike. Indeed, while the extradition of
Isidore “should have been a simple matter, it still has not transpired more than a decade after
the crime in question occurred”.
Last, but by no means least, Johannes Saal, this edition’s Featured Article, from the Master’s
Degree program in Religion, Economics and Politics at the University of Lucerne, tackles an
indeed challenging legal decision on a highly controversial topic. The conviction of a Muslim
physician by a German regional criminal court for having performed a ritual circumcision
caused much political turmoil and correspondingly a wealth of academic debate of varying
degrees of sophistication all over the world. The analysis of Mr. Saal tells the factual and legal
backgrounds of similar cases decided in various German courts in recent times and analyzes
the question of ritual circumcision in the context of the fundamental human rights of both the
children at issue, their parents and the religious communities to which they belong. The
author’s suggestion to move towards a multicultural approach in the context not only of
circumcision but of a wide array of religiously motivated acts and admissions merits praise.
Indeed, the current discussion of ethnically, but more pertinently religiously diverse, societies
focuses on something that goes beyond mere respect and tolerance, namely a true level of
dialogue that allows societies to benefit from the existence of multiple levels of beliefs and
concepts of public and private life, with a view to growth and inclusion, rather than
uninformed and one-sided condemnation.
The editors wish all readers an enjoyable time spent with the second issue of the Journal of
Transnational Legal Studies and look forward to your comments as well as your contributions
for future issues.
ALEXANDER H. E. MORAWA, S.J.D.
PROFESSOR OF LAW
EDITOR-IN-CHIEF
iv
USAGE NOTES
It has been said that to find something truly special, one never needs to look further than their own
backyard.1 At the Journal of Transnational Legal Issues, we believe in the importance of not only
high-quality articles from established scholars, but also in promoting student scholarship.
For the student, the chance to publish with a journal means that their work will be presented to an
audience that it otherwise would not be exposed to. It also gives students a glimpse into the detailed
processes of editing, communicating with editors, deadlines, and proper referencing. These skills are
crucial not only if they plan to publish in the future, but also to give them practical training in
researching their article, ensuring that their legal conclusions are properly supported, and their
references are formatted properly. Last, but not least, it is a resume booster that will give students a
leg up in the increasingly competitive job market.
For the journal, it is a chance to promote future scholars and provide a stepping stone to what will
surely be illustrious careers. It is true that the editing process can at times be more lengthy than with
seasoned researchers, but the result is almost always worthwhile. Student scholars are diligent and
energetic, viewing cutting edge legal issues from new and refreshing perspectives. They are eager to
explore difficult issues and willing to take the first step on the road to becoming experts in their fields.
This is why each issue, we have a section called “Featured Article” in each issue where we showcase
outstanding scholarship from our own students. We generally choose articles written either to fulfill a
Master’s thesis requirement or as part of the grade in a Master’s course. This issue we have chosen
multidisciplinary article on circumcision in Germany. For more information or to read past Featured
Articles, you can always visit our website.
XIAOLU ZHANG-COENEN
ASSISTANT EDITOR-IN-CHIEF
1
THE WIZARD OF OZ (Metro-Goldwyn-Mayer 1939).
v
TABLE OF CONTENTS
ARTICLES
A CASE STUDY IN EXTRADITION: THE ISIDORE CASE
KARL T. MUTH
...................................................................................................................... 110
BUSINESS FRANCHISE COMPLIANCE IN MAINLAND CHINA
PAUL KOSSOF
...................................................................................................................... 131
THE INTERNATIONALIZATION OF CONSTITUTIONAL LAW
USING VALUES TO BUILD AN AFRICAN JURISPRUDENCE AND DEVELOP A MORE INCLUSIVE BODY
OF INTERNATIONAL HUMAN RIGHTS LAW
LAUREN FIELDER
...................................................................................................................... 154
FEATURED ARTICLE
RECENT DEVELOPMENTS IN THE LEGAL DEBATE ON RELIGIOUSLY MOTIVATED CIRCUMCISION IN
GERMANY
JOHANNES SAAL
...................................................................................................................... 172
vi
JOURNAL OF
VOLUME 1, ISSUE 2
A Case Study in Extradition: The Isidore Case
KARL T. MUTH*
ABSTRACT
This Article traces, using a “law stories” narrative methodology, the decade-long path of
the Isidore case, an extradition case beginning with the discovery of an illicit drug
shipment in New Mexico and ending on a Caribbean tropical island. Mr. Isidore, the
person of interest in the matter, has not been apprehended by the American authorities,
due to a fascinating series of chance events, prosecutorial missteps, and diplomatic
failures. The matter is a remarkable case study in what can, and does, go awry in the area
of international extradition. The Author discusses the facts, procedure, and legal
framework on the case in detail, illustrating the complexity of a seemingly-simple
extradition matter.
ARTICLE CONTENTS
I.
II.
III.
IV.
V.
VI.
VII.
INTRODUCTION .................................................................................................111
THE ISIDORE MATTER ......................................................................................113
A. Background ................................................................................................113
B. Attempts by the United States to Capture Isidore ......................................114
1. Step 1: New Mexico ...............................................................................116
2. Step 2: Miami, Florida ..........................................................................116
3. Step 3: International Travel ..................................................................118
4. Step 4: Arrival on Dominica ................................................................120
RELEVANT INTERNATIONAL TREATIES AND AGREEMENTS .........................122
PROSECUTORIAL ACCESS ABROAD .................................................................124
A. By Letters Rogatory ...................................................................................124
B. By Finding..................................................................................................126
DIPLOMATIC CHANNELS OR POLITICAL BARGAINING ..................................127
POLICY IMPLICATIONS AND RECOMMENDATIONS .........................................128
CONCLUSION .....................................................................................................129
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2013
I.
EXTRADITION CASE OF ISIDORE
INTRODUCTION
This Article is written during the very public flight of Edward Snowden, a former U.S.
intelligence employee and fugitive, from Hong Kong to Russia and, possibly onward to
Ecuador or elsewhere. At the time of this writing, Julian Assange, founder of Wikileaks,
resides in Ecuador’s London embassy, part of a long-running extradition stalemate. Mr.
Assange commented on June 23, 2013, “I have great personal sympathy for Ed
Snowden's position.”2
However, most defendants flee in far less conspicuous conditions than Messrs. Assange
and Snowden. Each day, people around the world weigh the benefits of running and the
odds of success. Some fugitives escape the custody of authorities, some flee by violating
bail arrangements, and others evade capture altogether. When the person of interest
travels beyond the physical and legal boundaries of the jurisdiction, prosecutors recover
these individuals through extradition.
Extradition is one of the oldest international legal mechanisms. The first extradition
treaty was ratified by an Egyptian Pharaoh and a Hittite King nearly three and a half
millennia ago, primarily to prevent thieves from stealing from merchants in one place and
selling the illegally-obtained goods in the other jurisdiction. 3
Though subsequent centuries have brought some measure of clarity as to how nations’
criminal systems interact with one another, the procedure of extradition remains
unfamiliar to many legal scholars and practitioners. Many defendants are uncertain of
their legal position as fugitives and, unfortunately, many defense attorneys are unsure
how to advise their clients or which lineages of case law might be relevant. As can be
seen in the Isidore case, discussed here, one need not be a high-visibility person-ofinterest like Assange or Snowden for an extradition matter to take on a political hue in
addition to its legal color. To offer able counsel and comprehensive advice, attorneys
must be prepared to contemplate and anticipate both the procedural aspects and political
implications of their actions on behalf of fugitive defendants.
* Lecturer in Economics and Public Policy, Northwestern University. The Author performed
research, drafted memoranda, and assisted Julian Assange’s legal team in the United Kingdom;
those experiences, and experiences subsequent, inspired this Article. Thanks to Joseph A. Farrell
for finding ways for each of us to contribute knowledge, skills, advocacy, and advice to Julian’s
case. Thanks to Sarah Carson, Gita Drury, Nancy Jack, and Tom Kirk for their support and
encouragement of my work in this area. Special thanks to my dear friend Elizabeth M. Schutte for
taking an interest in this and other writings; my writing has benefitted immensely from her
thoughts and criticisms. I am grateful to WikiLeaks and M1RR0R5 for making available some of
the previously-classified diplomatic documents I cite here; I hope other legal scholars benefit from
the availability of these materials. An anonymous peer reviewer’s suggestions during the editorial
process contributed to this Article’s development. Finally, thanks to the Fort Young Hotel, where
much of this Article was written. All views and opinions herein, along with any errors, belong
only to the Author.
2
Tania Branigan, Miriam Elder, & Nick Hopkins, Edward Snowden: diplomatic storm swirls as
whistleblower seeks asylum in Ecuador, Guardian Newspaper, June 6, 2013, http://
www.guardian.co.uk/world/2013/jun/23/edward-snowden-escape-moscow-ecuador.
3
Quinn v. Robinson, 783 F.2d 776, 792 (9th Cir. 1986).
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2013
J. TRANSNATL. LEG. ISSUES
Though many articles have sorted through the historical or theoretical context of
extradition, few have examined the legal realities of a particular case or single defendant
– arguably a more useful approach for the practitioner. This Article uses the
contemporary matter of Randy Isidore to explore and explain the issues facing a fugitive
defendant in today’s legal framework. It is written in the hope it will be both of interest
and of use to practitioners representing parties who have made the decision to flee.
A.
Purpose, Structure, and Boundaries of Discussion
This Article isolates the fact pattern and legal scenario of a particular case in order to
explain the implications of a defendant’s decision to flee the jurisdiction where a crime –
in this case, drug trafficking – occurred. This methodology, sometimes called the “law
stories” movement in legal pedagogy, is common in the human rights literature, 4 but
remains rare in the criminal law or criminal procedure scholarship. At this time of
frequent intersection between human rights law, uncharted territory in extradition
matters, and new avenues for prosecutorial prospecting, it seems appropriate to extend
this method of storytelling and analysis to the area of criminal law and extradition.
This Article examines the flight of a defendant from New Mexico to the island of
Dominica and the many challenges that face prosecutors in their attempts to extradite him
to the United States. Through a chronological explanation of the case, rather than a
procedural one, we learn of Mr. Isidore’s legal troubles, flight from the authorities, and
resistance to extradition. This chronological structure was chosen to help practitioners,
scholars, and students understand the many choices a defendant encounters during flight
from jurisdiction and the legal implications of these choices. In mounting a defense, it is
crucial to understand the series of decisions, places, and events that lie between the
alleged crime and the defendant’s current abode.
The goal of this Article is not to lay out black-letter legal principles with regard to
extradition. Rather, it is to tease out the nuance and complexity that marks every real-life
case and to allow practitioners and scholars to understand the challenges facing defense
counsel and his or her client. This Article should be read as closely bound by the fact
pattern it describes, and the timeline discussed should be seen as remarkable and unusual
rather than typical.
B.
State of the Art
In general, the prosecutors – particularly those in America – should rejoice. The last fifty
years have been a string of victories for the prosecution. It is now easier than ever for a
prosecutor to enjoy jurisdiction over a fugitive defendant. In the wake of several
embarrassing, high-profile flight cases, the U.S. State Department made extradition a
priority. This led to an astounding number of relatively-recent Caribbean extradition
treaties coming into force, despite having been negotiated during the Clinton
Administration (described in Treaty Document 105-195). The Caribbean treaties that
came into force around the year 2000 included Antigua and Barbuda (1999), Belize
4
See, e.g., W. J. Aceves’s excellent retelling of Filartiga v. Pena-Irala, 630 F. 2d 876 (2d. Cir.
1980) in WILLIAM J. ACEVES, THE ANATOMY OF TORTURE: A DOCUMENTARY HISTORY OF
FILARTIGA V. PENA-IRALA (2007).
5
Extradition Treaties with Organization of Caribbean States, July 30, 1997, 1996 U.S.T. Lexis 57.
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2013
(2001), Dominica (2000), St. Vincent and the Grenadines (1999), and a handful of others
(some non-Caribbean states like Sri Lanka and Zimbabwe also saw substantial
extradition treaty term revisions during this period).
The offense at issue in the Isidore matter is almost certainly the sort of offense
contemplated by the extradition treaty between Dominica and the United States: “An
offense shall be an extraditable offense if it is punishable under the laws in both
Contracting States by deprivation of liberty for a period of more than one year or by a
more severe penalty.”6 Yet, despite this general diplomatic momentum in favor of
extradition and the rather straightforward treaty language adopted by Dominica and the
United States, no extradition occurred in this particular case. This Article endeavors to
explore why and how a seemingly simple fugitive defendant case can continue for more
than a decade, and analyze why this delay, while unusual, is not unique.
II.
THE ISIDORE MATTER
A.
Background
Randy Isidore, a Dominican national, allegedly transported around 2,240 pounds7 of
dried and ready-for-sale marijuana (a street value well in excess of one million dollars) in
New Mexico in 2001, as part of a scheme to move the dried plant material from Arizona
to New York.8 Following his arrest,9 through a series of travel arrangements not
described in any publicly available document, he escaped to the Caribbean island of
6
Id. at Art. 2, § 1.
7
The concept of a large quantity should be kept in perspective. While a multi-million-dollar
street-value arrest is major in a given police officer’s career, defendants like Isidore are common
in the greater scheme of the narcotics market, which reached half a trillion dollars per year in
value twenty years ago. The international narcotics trade is second only to the international arms
trade in value. THE INDEPENDENT (London), Feb. 23, 1990, at 12, col. 1.
8
At the time of the offense, with the street value of high-quality marijuana hovering around
$7,000 per pound, the quantity of over one ton being moved by Isidore was clearly over one
million dollars of product in street value and well in excess of “trafficking weight” by
prosecutorial benchmarks. A contemporary report cites the street value of Isidore’s cargo at
sixteen million dollars. Dominica: Premier Blames Former Attorney General for Release of
Suspect, ASIA AFRICA INTELLIGENCE WIRE, http://www.accessmylibrary.com/coms2/
summary_0286-26284759_ITM (Oct. 2002).
9
Mr. Isidore was arrested at some time in 2001. Neither the arrest, nor the bail arrangement, are
matters of public record and do not appear in published documents of the New Mexico courts or
the Tenth Circuit. No records of prior proceedings or orders, for instance bench warrants, were
attached or appended to subsequent diplomatic cables regarding Mr. Isidore. It is likely Isidore’s
arrest was followed by a typical arraignment and that a bail arrangement was made and then
violated.
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Dominica.10
Isidore and his attorneys have been engaged for more than a decade in both domestic11
and international attempts to help him remain a free man and thwart his extradition.
Overall, these efforts have been remarkably successful. This Article examines the events,
strategies, and tactics of the Isidore case in detail.
Tensions between America and its neighbors regarding extradition issues have arisen
over the course of the “War on Drugs”, with fugitive defendants often fleeing to Mexico
and the Caribbean.12 This has been particularly true in cases involving foreign nationals,
or defendants who may hold multiple passports or valid travel documents, unbeknownst
to the trial court or to prosecutors. With more immigrant defendants originating from
Latin America, particularly defendants with ties to the Caribbean and Mexico, American
criminal defense attorneys are increasingly confronted with extradition scenarios. 13 In
these situations, understanding both the procedural and strategic considerations when a
defendant departs the first jurisdiction is crucial.
B.
Attempts by the United States to Capture Isidore
Isidore’s departure from the United States predates the use of air marshals for widespread
law enforcement duties and fugitive intervention.14 Prosecutors would have needed to act
quickly to capture Isidore in transit. A charter flight from Santa Fe or Albuquerque to
Antigua would not have been possible; all jets with enough range to make this flight
require too long an airstrip to land on Dominica. Commercial air travel from
Albuquerque to Miami to Antigua to Dominica would have required nearly 24 hours.
Driving from Albuquerque to Miami would require about 30 hours,15 assuming the
10
Dominica, or the Commonwealth of Dominica, is an island in the East Caribbean with a French
and English history. It should not be confused with the Dominican Republic. There is no
evidence that Randy Isidore had ever before traveled to Dominica and he may have purchased
citizenship. Dominican citizenship is available for purchase for $75,000 and it is not required that
a person ever visit the island; the island sells hundreds of citizenships every year and it has
become a significant source of revenue. See Shaheen Borna & James M. Stearns, The Ethics and
Efficacy of Selling National Citizenship, 37 J. BUS. ETHICS 193, 201.
There are no clear
documents describing how he became a Dominican national. He is an American citizen and may
hold other citizenships also (hence the lack of a deportation hearings in the record).
11
Randy Isidore v. Superintendent of Prisons, Civ. Suit No. 41/01 (Dominica, 2001) (Cenac, J.).
12
Henry P. De Vries & Jose Rodriguez Novas, Territorial Asylum in the Americas: Latin
American Law and Practice of Extradition, 5 INTER-AM. L. REV. 61-80 (1963); M.R. Wilkey,
Recent Developments in Extradition in the Americas, 12 PROC. INTER-AM. BAR ASS’N CONF.
1961, 107-19 (1969).
13
The first step in any American defense attorney’s research when handling an extradition case
should be to review the Federal Criminal Code and Rules’ country list of extradition treaty
arrangements, now provided as a separate supplement and as an addendum to 18 U.S.C. § 3181.
14
The Visible Intermodal Prevention and Response teams (VIPER teams) are part of the Air
Marshal service and authorized under 6 U.S.C. § 1112. There were no VIPER teams in use at the
time of Isidore’s travel to Dominica.
15
See the driving directions at GOOGLE MAPS, http://maps.google.com/maps?client=
opera&rls=en&q=Albuquerque+to+miami&oe=utf-8&channel=suggest&um=1&ie=UTF-8&hl=
en&sa=N&tab=wl (last visited June 24, 2013).
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vehicle would be traveling near the applicable speed limits to avoid detection.16 Travel
by boat from Miami to Dominica would require about a week at a sustained 7 knots. All
of these are short windows of time for law enforcement intervention, particularly when
the person to be captured is a moving target.17
It is possible that Isidore’s escape was fast, well-planned, and that American authorities
could not act in time to prevent his travel or interfere with the underlying logistics. It is
likely that Isidore’s financial resources were substantial. Further, he may have had
assistance in arranging transit to Dominica.
No public record exists of letters rogatory or other attempts by the United States to
interview or gather evidence against Mr. Isidore in Dominica.
Not that the United States had no interest in pursuing him - if Isidore had been captured,
it would have been a feather in the cap for the United States and their partners’ drug
enforcement efforts in the Caribbean. To put the crime in context, Isidore’s cargo of
more than one ton of marijuana represented a 25% increase in the total quantity of
marijuana seized by the Drug Enforcement Unit (RBPF) during the year in question.18
C.
Escape to Dominica
Whether through luck or sound planning, Isidore escaped the jurisdiction of the United
States. However, various stages of his escape are interesting in that a practitioner (or
student) can contemplate what might happen if a defendant were recaptured while
fleeing. A brief discussion of each possible mode of flight and the relevant case in each
area is intended to help practitioners find additional cases and analogies, rather than to
provide an exhaustive discussion of the operative law or relevant procedure.
It is unclear19 on what date Isidore was able to reach the island of Dominica, though he
had at least ten days to do so (the time between his first possible date of escape on
January 20, 2001 and the issuance of the warrant for his arrest on January 30, 2001).
Dominica is an East Caribbean island with no direct commercial flights from the United
16
Isidore would have been wise to take measures to avoid detection. It is unlikely Oklahoma City
bomber Timothy McVeigh would have been apprehended as quickly or easily, had he not been
stopped in a vehicle without license plates, which aroused suspicion. See The Oklahoma City
Bombing and the Trial of Timothy McVeigh: A Chronology, http://law2.umkc.edu/
faculty/projects/ftrials/mcveigh/mcveighchrono.html (last visited June 24, 2013).
17
Likely only Isidore (and any allied co-conspirators) knows exactly how he traveled from the
United States to Dominica, whether by boat or by aircraft. Each possibility is explored, infra, in
sections 3a and 3b. It is also unclear from which American port (seaport or airport) Isidore
departed, so Miami is used as a proxy, as it is a location from which both air and sea travel to
Dominica are plausible alternatives.
18
International Narcotics Control Strategy Report (U.S. Dept. of State, Bureau of International
Narcotics Matters, INT’L NARCOTICS CONTROL STRATEGY REPORT, Mar. 2005) [hereinafter
International Narcotics Control Strategy Report].
19
Accounts, including U.S. State Department sources, conflict as to this date. The precise date,
likely between January 11, 2001 and January 31, 2001, may be known only to Isidore himself.
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States and no runways capable of accommodating long-range passenger jets.20 The
fastest commercially-available route at the time would have required Isidore to fly from
an airport in New Mexico to Miami, from Miami to Antigua, and then from Antigua to
Dominica. It is possible Isidore drove (or was driven) in an automobile from New
Mexico to Florida. The distance between Florida and Dominica by sea, however, is
substantial; even with access to a very fast vessel, maritime travel between the two is
impractical and unlikely.21 It is more likely that Isidore boarded at least one commercial
aircraft to reach Dominica and that one of these flights originated in the United States
(likely in Miami) and terminated in another jurisdiction (likely Antigua). As is discussed,
infra, the mode of transport from Miami to Dominica is in question, but whether Isidore
reached Dominica by airplane or boat does not change the outcome substantially.
Knowing this, it is worthwhile to examine the constituent steps by which Isidore must
have traveled to reach Dominica and the effects of prosecutorial intervention or capture at
each step.
1.
Step 1: New Mexico
Without question, if Isidore had been apprehended in New Mexico, he could have been
returned to court to stand trial there for a series of narcotics-related offenses as well as for
violating the conditions of his bail. Under New Mexico law, distribution of marijuana
over 100 pounds as a first offense is treated as a third-degree felony and punishable by
three years imprisonment.22 However, as the drugs crossed state lines, federal law would
have applied in this case. As a Schedule I substance, and assuming this would have been
Isidore’s first offense, a conviction would have carried a penalty of not more than 10
years and a fine of not more than $10 million.23
2.
Step 2: Miami, Florida
Had Isidore been intercepted and captured in Miami, his return to New Mexico for trial
would likely have been swift and uneventful. The law of interstate extradition is well-
20
As of this publication, discussions continue regarding extending the Canefield runway. It would
require millions of dollars of improvements to accommodate any airplane larger than small
propeller or turboprop, such as a DeHavilland Dash (the most common regional airplane flown in
and out of Dominica).
21
The maritime distance between Miami, Florida and Roseau, Dominica is approximately 1,600
miles (or 1,415 miles as the crow flies). A reasonably fast sailboat cruises at 8 knots (9 miles per
hour) and would take over a week of around-the-clock sailing to reach Dominica from Miami. A
reasonably fast motor yacht can travel at 20 knots (23 miles per hour), still requiring three full
days underway, twenty-four-hours-per-day, to reach the destination. While most mid-sized motor
yachts have more than enough range to reach Roseau from Miami (the typical range of a mid-sized
motor yacht is around 3,500 nautical miles), chartering such a yacht would have required far more
advance planning (and more financial resources) than chartering an airplane of similar range.
22
N.M. STAT. ANN. § 30-31-22(A)(1)(c-d) (West 2006).
23
21 U.S.C. § 841(b)(1)(A) (2007).
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settled and rarely is any domestic transfer so complex that it cannot be handled within the
language of 18 U.S.C. § 3182.24
In theory, a Section 3182 demand is relatively simple. The senior prosecutor of the
appropriate jurisdiction in New Mexico would make a demand of the target jurisdiction,
in this case Florida. A charging document, usually an indictment, would be transmitted
(often electronically or by facsimile) from New Mexico to Florida for review. So long as
the indictment alleges felonious activity or high crimes, and so long as the document is a
certified copy, the executive receiving the request will pursue the fugitive party.25 Had
Isidore been captured in Florida, and had these requests been properly and timely made, a
representative of the New Mexico Attorney General would then make arrangements to
receive Isidore.
Often, in cases like the Isidore case, the steps above would take place within a single
string of telephone calls and e-mails between members of the offices of the states’
Attorneys General. Such a series of exchanges might span a matter of hours or a few
business days. In high-value cases with a high risk of further or international flight, the
U.S. Attorney may offer resources normally unavailable to prosecutors at the county or
state level.
However, Isidore’s interception would have been difficult in January of 2001. Interstate
wants-and-warrants systems were not yet fully integrated (and would not be until nearly
three years after the 9/11 terrorist attacks) and, perhaps most importantly, no warrant was
issued for Isidore’s arrest until ten days after Isidore began his escape to Dominica,
according to the timeline then-Prime-Minister Pierre Charles cited.26 Hence, Isidore
enjoyed a luxury most fleeing defendants do not: a ten day head-start.
If, as noted in Pierre Charles’s account, Isidore began fleeing ten days before an arrest
warrant was issued, there is little doubt he was able to leave the United States before any
serious effort to capture him was made.
24
“Whenever the executive authority of any State or Territory demands any person as a fugitive
from justice, of the executive authority of any State, District, or Territory to which such person has
fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any
State or Territory, charging the person demanded with having committed treason, felony, or other
crime, certified as authentic by the governor or chief magistrate of the State or Territory from
whence the person so charged has fled, the executive authority of the State, District, or Territory to
which such person has fled shall cause him to be arrested and secured, and notify the executive
authority making such demand, or the agent of such authority appointed to receive the fugitive,
and shall cause the fugitive to be delivered to such agent when he shall appear. If no such agent
appears within thirty days from the time of the arrest, the prisoner may be discharged.” 18 U.S.C.
§ 3182.
25
For a summary of the typical Section 3182 extradition demand scenario, see the facts of
Michigan v. Doran, 439 U.S. 282 (1978), particularly the interactions between the states of
Arizona and Michigan described at pp. 284-85. To understand the promulgation of this line of
jurisprudence, see Compton v. State of Alabama, 214 U.S. 1 (1909) (matter of extradition
concerning swindler present in Alabama and wanted in Georgia); see also cf. Illinois ex rel.
McNichols v. Pease, 207 U.S. 100 (1907) (dealing with precise language used in §3182).
26
This assumes Dominica’s Prime Minister at the time, Pierre Charles, enjoys the benefit of nonpublic information in crafting his narrative of events. He states in several contemporary media
reports that Isidore began fleeing to Dominica on January 20, 2001. See ASIA AFRICA
INTELLIGENCE WIRE supra note 8.
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3.
Step 3: International Travel
a.
Flight from Miami to Antigua
Assuming Isidore traveled by air from the United States to the Caribbean, he would not
have been safe from U.S. prosecution while in transit. The United States created a legal
framework27 allowing for “special aircraft jurisdiction” over foreign nationals who
commit crimes28 on international flights. Fleeing the jurisdiction of the United States by
airliner in Isidore’s situation is, without doubt, a subsequent crime committed on board a
commercial airliner.29
In the landmark case in this area, United States v. Georgescu,30 a Romanian man sexually
abused31 a Norwegian girl32 aboard a Scandinavian Airlines airliner. Though prosecutors
conceded the crime in question involved a foreign national and did not occur within the
boundaries of the United States (or any jurisdiction normally available to United States
27
See, e.g., 18 U.S.C. § 2241(c) (Supp. V 1987); 49 U.S.C. § 1472(k)(1) (Supp. V 1987).
28
By boarding the flight from Miami, Isidore would have committed further crimes related to his
flight from a United States jurisdiction. These crimes, related to evading prosecution, almost
certainly would have been considered to have occurred when the airplane he boarded took flight.
29
It is established that flight from justice at minimum forfeits the right to appeal and may
constitute an additional crime. “Once an escapee flagrantly refuses to obey a court order to return
to custody, knowing quite well his recalcitrance will cost him an appeal, it seems thoroughly
reasonable to close the courthouse doors to his claim.” United States v. Snow, 748 F.2d 928, 930
(4th Cir. 1984). Further, it is settled law that a court need not adjudicate the merits of a criminal
defendant’s appeal if the same person has escaped from lawful custody (Molinaro v. New Jersey,
396 U.S. 365 (1970)). Many states have made flight from the jurisdiction a more serious offense,
or additional offense, and courts have generally upheld these legislative decisions (see, e.g., Jones
v. Helms, 452 U.S. 412, 423 (1981) (contemplating legislative decision in Georgia to make
nonsupport of a dependent child followed by flight from the jurisdiction a more serious offense
than child abandonment within the jurisdiction) (Stevens, J.)). In New Mexico, fleeing the
jurisdiction can be both a separate criminal offense and an aggravating circumstance under NMSA
1978, § 31-18-15.1 (2003); these considerations (when used as to sentencing) have been found to
be consistent with the Supreme Court’s decisions in Blakely v. Washington, 542 U.S. 296 (2004)
and United States v. Booker, 543 U.S. 220 (2005) (see, e.g., New Mexico v. Jernigan, 127 P.3d
537 (N.M. 2005)). Perhaps most illustrative of judges’ thoughts in the State of New Mexico, a
state where defendants often have ties to Mexico or temptations to flee the jurisdiction, is this
passage written by District Judge Browning last year: “The Court also can see, however, that it is
also more likely that a defendant will not show up for court purposefully in the face of a lengthy
sentence, if he had previously thought about fleeing the jurisdiction ... In this case, the Court
would find it hard to believe that, if [a defendant with international ties] resolved to flee the
jurisdiction [internationally], he would later change his mind and show up voluntarily to face a
charge for ten-years imprisonment and a warrant for fleeing while on bail.” United States v.
Munoz-Hernandez, No. CR 12-0128 JB (D.N.M. 2012) (Browning, J.).
30
723 F. Supp. 912 (E.D.N.Y. 1989).
31
The term “sexual abuse” is not used lightly by the author and is drawn from the Eastern District
of New York’s summary of the statute: “Section 2241 of chapter 109A of title 18 of the United
States Code deals with sexual abuse of a child under the age of twelve, making it a crime
punishable by up to life imprisonment.” 723 F. Supp. at 913 (emphasis added).
32
The victim was nine years of age at the time of the incident.
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prosecutors), the court found that “special aircraft jurisdiction” allowed for the
prosecution of Georgescu in the United States.33
Here, Isidore’s activities in fleeing the jurisdiction are almost certainly more closely
linked to the United States than the activities of Georgescu.34 However, as American
authorities failed to timely issue a warrant for Isidore’s arrest – and hence failed to
interfere with Isidore’s air travel from the United States to Dominica –further discussion
of special aircraft jurisdiction is not needed.35
b.
Maritime Travel from Miami to Dominica
Alternatively, supposing Isidore chartered a boat (or more likely had an ally or coconspirator with access to a vessel), achieving distance from the Floridian coast would
not have been enough to bring Isidore to safety. Indeed, the concept of “international
waters” as a safe haven from prosecution is an antiquated one. While the myth of
international waters as a refuge from prosecution may be romantic, it is unrealistic, as
became clear in United States v. Roberts.36
Isidore’s traveling by boat to international waters in order to escape prosecution is, in
itself, likely an offense not outside the jurisdiction of the United States. In Roberts, the
defendant raped37 a minor while aboard a cruise ship in international waters over fifty
miles from the coast of Mexico. Defendant Roberts was an employee of Carnival Cruise
Lines and lived aboard the ship, which was registered in the African country of Liberia.
33
Georgescu, supra note 30. But see Article 3 of the Tokyo Convention, which seems to allow a
broad exercise of jurisdiction on airplanes. TOKYO CONVENTION, art. 3 § 3, 20 U.S.T. at 2944
(1968). However, Article 4 of the Convention specifically limits authority in cases that involve
authorities trying to “interfere with an aircraft in flight to exercise . . . criminal jurisdiction.” In
other words, prosecutors are encouraged to allow a flight to continue its commercial trajectory.
Without the provisions in Article 4, prosecutors would have an interest in diverting commercial
airliners or even attempting dangerous apprehensions of suspects, endangering the lives of
hundreds of civilians aboard.
34
Note, however, that Isidore’s initial and subsequent crimes were not violent. Had they been
violent crimes committed against citizens of the United States, normal considerations of
jurisdiction would be superseded by the 1996 amendments to 18 U.S.C. §§ 3181, 3184; For a
fascinating analysis of mid-century apprehensions of defendants during or immediately after their
flight from jurisdiction, see M. H. Cardozo, When Extradition Fails, Is Abduction the Solution?,
55 AM. J. INT’L L. 127 (1961) (written when abductions of Artukovic and Eichmann were
contemporary events).
35
For those interested in special aircraft jurisdiction or for practitioners working with defendants
so charged, it is important to understand that special aircraft, maritime, and territorial jurisdiction
are related (but not coterminous) concepts. See 18 U.S.C. § 2241 (c) (Supp. V 1987), 49 U.S.C. §
1472 (k)(1) (Supp. V1987) (special aircraft jurisdiction); see generally 18 U.S.C. § 7 (1982)
(discussion of special jurisdiction and its limitations); 18 U.S.C. § 7(5) (1982) (provision that led
to today’s craft ownership restriction doctrine); 18 U.S.C. § 7 (7) (Supp. V 1987) (nationality of
victim requirement).
36
37
1 F. Supp 2d 601 (E.D. La. 1998).
In the context and fact pattern of this particular case, it is important to note that, due to the age
of the victim, consent was not an available defense.
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Despite the registration in Liberia, the victim’s U.S. citizenship brought the case within
reach of American prosecutors.38
By contrast, importing large quantities of narcotics for resale and consumption by
Americans is a crime that occurred in the United States and directly affects hundreds or
thousands of Americans. It is not difficult to see how a judge would find jurisdiction
over Isidore while in transit by sea from Florida to Dominica. However, the ten days
between January 20, 2001 and the issue of the arrest warrant on January 30, 2001 is
certainly enough time, even in a sailboat of modest capability and provisions, to reach
Dominica from Miami.
4.
Step 4: Arrival on Dominica
Once Isidore gathered any baggage and passed the two podiums that mark the exit from
customs at the airport on Dominica (or brought his baggage ashore near Roseau), it
became substantially more difficult for the United States to make a claim of jurisdiction.
Dominica is a small island with two airports, with neither able to accommodate
transatlantic passenger jets. The sparsely populated island,39 famous for its beautiful,
mountainous topography, makes locating individuals on the island extremely difficult.
Poor communications infrastructure exacerbates the problem of locating a person40 on
Dominica (or determining if a person is even present), as does the ease with which
individuals can travel to neighboring islands, which are CARICOM member countries.41
We know, however, that Isidore did make it to Step 4, probably by the means described
supra, and that Isidore either unknowingly avoided or actively evaded capture. Isidore
was then apprehended and questioned in Roseau, Dominica’s capital, and held for a
period of months at Stock Farm State Prison,42 where Attorney-General David Bruney
claims Isidore fell ill.43 Then, due to this illness, Isidore was released by Dominican
38
Roberts was successfully prosecuted under 18 U.S.C. §§ 2243(a), 2244(a).
39
The country of Dominica has about 250 residents per square mile, compared to 13,000 people
per square mile in London, 9,800 people per square mile in Washington, D.C. (a city about a
quarter the physical size of Dominica), or just over a thousand people per square mile in the state
of Rhode Island (an area about five times the size of the island of Dominica).
40
The government of Dominica may be able to claim, in good faith, that Isidore cannot be located
using its intelligence and police resources, making the assistance promised under Article I § 2(c)
of the OECS MLAT unavailable. Treaty on Mutual Legal Assistance in Criminal Matters, U.S.Dominica, May 25, 2000, S. Treaty Doc. No. 105-24 [hereinafter OECS MLAT].
41
CARICOM is a group of Caribbean countries with 15 full members and 5 associate members.
The immigration and customs regulations between these countries are relaxed and they operate at
times – but not always – as a single, continuous economic zone.
42
Stock Farm is a notorious colonial prison, formerly simply Her Majesty’s Prison, and is the
most secure prison on the island of Dominica. It holds nearly 300 inmates in sweltering tropical
heat, more than double the prison population for which it was designed.
43
See ASIA AFRICA INTELLIGENCE WIRE, supra note 8.
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authorities on an Order Vacating Warrant of Committal issued by Bruney44 in August of
2001.45
According to then-Prime-Minister Charles, “[Attorney General] Bruney informed me he
released [Mr. Isidore] because the man was suffering from stress. I told him this was
unacceptable and based on that argument all the prisoners at the Stock Farm State Prison
should be released[.]”46
Though the island is French Caribbean in culture and linguistics, the Dominican courts
are English in their jurisprudential heritage.47 Hence, looking to English legal traditions
can be instructive when attempting to predict outcomes.48 The modern British tradition
in the area of extradition begins with In re Castioni, 1 Q.B. 149 (1890).49 Generally,
British courts have been predisposed against extradition unless the petitioning party can
build a prima facie case50 before a magistrate.51 Similarly, Dominican courts generally
44
Id.
45
See International Narcotics Control Strategy, supra note 18.
46
See ASIA AFRICA INTELLIGENCE WIRE, supra note 8.
47
In 2009, the University of Ottawa compiled one of the most comprehensive analyses of
jurisprudential heritage and classifies Dominica’s legal system as a “common law monosystem,”
that is directly descended from British common law (available at http://www.juriglobe.ca/). For
foreign attorneys to practice on the island of Dominica, a U.K.-style “conversion course” is
required. The most recent revision of the legal system on Dominica in 2010, found in the Legal
Profession Act (2010 and as amended) is patterned on the British regulations of legal practice,
including a distinction between solicitors and barristers, a central governmental organization to
oversee attorneys (the Law Council of Dominica), and recognition of barristers and solicitors
previously admitted to practice in Commonwealth jurisdictions. A person may apply to the High
Court to be admitted to practice law in Dominica so long as, among other things, that person “is
not or has not been disbarred or struck off the roll of attorneys-at-law however described of any
court of a country listed in the First Schedule or of, England, Scotland or Northern Ireland[.]”
DOMINICA LEGAL PROFESSION ACT (2010) at §20(1)(f).
48
See Extradition: Rendition of Fugitive Offenders, in BRITISH DIGEST OF INT’L LAW ch. 4 (Clive
Parry ed., 1965).
49
In Castioni, the Divisional Court held that Castioni’s political activities, even though they had
led to the death of a government official, did not form a basis for his extradition to Switzerland
from England. Compare Ornelas v. Ruiz, 161 U.S. 502 (1896) (crimes committed in Mexican
border town during period of political unrest). For how the treatment of political crimes in
England changed as to extradition, see Regina v. Governor of Brixton Prison (ex parte
Kolczynski), [1955] 1 Q.B. 540, 549 (1954).
50
Continental legal systems often offer requirements lower than the showing of a complete prima
facie case, favoring the French standards. Importantly, while French codification of lower
extradition standards reduces procedural barriers to extradition, the political offense exception
created in English law has been adopted and codified in French law. See 2008 C. PÉN. art. 113-81 (2008). For further limitations regarding human rights concerns, Soering v. United Kingdom,
161 Eur. Ct. H.R. (ser. A) (1989).
51
The Extradition Act 2003 removes the need for a prima facie case to extradite a person of
interest from Britain to the United States, but no similar act has been ratified by Dominica. The
full text of the Extradition Act 2003 is available at http://www.statewatch.org/news/
2003/jul/UK_USA_ extradition.pdf.
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require a prima facie case be made by the movant,52 though the elements may be met in
camera or by direct petition to an appropriate magistrate or executive official. 53 The
release of Isidore on an Order Vacating Warrant of Committal (allegedly signed by the
Attorney General himself), while unusual, was procedurally proper under British and
British colonial law, so long as it occurred under the Prime Minister’s authority.54
The Dominican authorities have since taken no action as to the American extradition
requests.55
III.
RELEVANT INTERNATIONAL TREATIES AND AGREEMENTS
With some exceptions, extradition statutes divide cleanly into two discrete generations.
In the period 1830 through 1855, many European states passed extradition laws, many of
them modeled on Belgium’s statute and its subsequent evolution.56 A second wave of
extradition laws meandered through legislatures in the wake of the Second World War.57
Dominica, which gained its independence from the United Kingdom relatively recently, 58
was a Crown Colony during both periods and hence has little history in hearing
extradition matters.
According to the U.S. State Department, “Dominica is a party to the 1961 UN Single
Convention, as amended by the 1972 Protocol, the 1971 UN Convention on Psychotropic
Substances and the 1988 UN Drug Convention.59 Dominica is not a party to the InterAmerican Convention on Mutual Assistance in Criminal Matters, the Inter-American
Convention against Corruption, the Inter-American Firearms Convention or the UN
Convention against Transnational Organized Crime.”60
52
The OECS MLAT allows Dominican executive officials some latitude in extradition decisions.
See supra note 40.
53
See OECS MLAT, supra note 40.
54
Then-Prime-Minister Pierre Charles contests whether Attorney General David Bruney had the
power or permission to issue the Order. See ASIA AFRICA INTELLIGENCE WIRE supra note 8.
55
See International Narcotics Control Strategy Report, supra note 18.
56
See EXTRADITION LAW, 1 October 1833, Article VI (statuts belges) (1833) and as amended 23
March 1856 (1856) and 8 July 1946 (1946).
57
These include revisions through the 1960’s, including, e.g., ALGERIAN CODE OF CRIMINAL
PROCEDURE §§ 66-155 of 8 June 1966, art. 694-720 (1966); AUSTRALIAN EXTRADITION TO
FOREIGN STATES ACt, No. 79 of 1966 and AUSTRALIAN EXTRADITION TO COMMONWEALTH
COUNTRIES ACT, No. 75 of 1966; PEOPLE’S REPUBLIC OF CHINA EXTRADITION LAW, 引渡法中 of
17 April 1954 (1954); DANISH EXTRADITION LAW of 17 April 1954; MOROCCAN EXTRADITION
DAHIR (1958).
58
Dominica gained independence peacefully on 3 November 1978 by treaty and grant of
independence.
59
For more information on the implications of these treaties and accords, see IVAN ANTHONY
SHEARER, EXTRADITION IN INTERNATIONAL LAW(1871).
60
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Importantly, there is a limited Mutual Legal Assistance Treaty (MLAT)61 between
Dominica and the United States. This MLAT, known as the OECS MLAT, is pattern
language used by members of the Organization of Eastern Caribbean States.62 Though
Dominica has not made a formal, published decision as to Isidore, its delay in extraditing
him likely constitutes a denied request under Articles 14 and/or 16 of the OECS MLAT,
assuming the United States timely63 and properly furnished an Article 4 request to
Dominica.
While one might contend the Isidore case falls somehow outside the (signed) Mutual
Legal Assistance Treaty but within the (unratified) Inter-American Convention on Mutual
Assistance in Criminal Matters, this argument seems unlikely to succeed. The MLAT,
while itself only a framework for prosecutorial cooperation, must be considered in
tandem with the extradition treaty language then-adopted.64
That language is as follows:
Extradition Procedures and Required Documents
1. All requests for extradition shall be submitted through the diplomatic channel.
2. All requests shall be supported by:
(a) documents, statements, or other types of information which describe the
identity, and probable location of the person sought;
(b) information describing the facts of the offense and the procedural history of
the case;
(c) information as to:
(i) the provisions of the laws describing the essential elements of the
offense for which extradition is requested;
(ii) the provisions of the law describing the punishment for the offense;
and
(iii) the provisions of law describing any time limit on the prosecution;
and
(d) the documents, statements, or other types of information specified in
paragraph 3 or paragraph 4 of this Article, as applicable.
61
For example, The Treaty Between the United States and Canada on Mutual Legal Assistance in
Criminal Matters, was signed at Quebec City, Canada on March 18, 1985 (which received the
consent of the United States Senate on 24 October 1989 and entered into force on 24 January
1990). Treaty with Canada on Mutual Legal Assistance in Criminal Matters, Jan. 24, 1990, S.
Treaty Doc. No. 100-14.
62
The Dominican counter copy of the OECS MLAT was executed at Roseau on October 10, 1996
and can be read, with its accompanying papers at http://www.oas.org/juridico/mla/
en/traites/en_traites-mla-usa-dma.pdf.
63
In an emergency situation, such as Isidore’s imminent flight, there are provisions allowing other
types of communications, requests, and services, but there is no evidence these provisions were
used in the Isidore matter.
64
The extradition language put forth by the Clinton administration on October 10, 1996 was
adopted by Dominica on May 25, 2000, predating both the Isidore flight from U.S. jurisdiction
and the offense in question.
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3. A request for extradition of a person who is sought for prosecution shall also be
supported by:
(a) a copy of the warrant or order of arrest, if any, issued by a judge or other
competent authority of the Requesting State;
(b) a document setting forth the charges; and
(c) such information as would provide a reasonable basis to believe that the
person sought committed the offense for which extradition is requested.65
There is little doubt the United States could, and did, meet the document requirement
under its treaty with Dominica, independent from the MLAT. The U.S. has seemingly
met its documentary burden, though Dominica has not complied with the extradition
request. Dominica may want additional evidentiary or procedural satisfaction before
handing over Isidore or, alternatively, the reluctance to hand over Isidore may be a
diplomatic decision (Dominica may want trade concessions, debt relief, or other political
or economic assistance from the United States in exchange for Isidore).
IV.
PROSECUTORIAL ACCESS ABROAD
There are two primary routes by which the United States gains access to witnesses and
suspects who reside overseas. The first, and primary, system is the letter rogatory. The
second, more modern, system is the so-called “finding” scenario.
A. By Letters Rogatory
Letters rogatory66 are issued in exceptional circumstances where the ability to depose or
question a witness is not created through an extant treaty or diplomatic arrangement. In
the vast majority of circumstances, letters rogatory must be issued in order for the first
jurisdiction to gain access to witnesses or suspects in the second jurisdiction.
A letter rogatory is a request for assistance from the courts of the first jurisdiction to the
courts of the second jurisdiction. Many countries have entered into so-called mutual
legal assistance treaties, (see notes 54, 57) which President Reagan considered67 as one of
the "treaties being negotiated by the United States in order to counter more effectively
criminal activities." Having such an arrangement is not a prerequisite to the issuance of
a letter rogatory, but it makes the process both speedier and more uniform. 68
Historically, a letter rogatory was a strict requirement whenever evidence was sought by
a foreign court. Today, the requirement of a letter rogatory may be extinguished by
65
A copy of the treaty language as proposed (and later ratified) is available free of charge at
internationalextraditionblog.files.wordpress.com/2011/03/dominica1.pdf Bilateral Extradition
Treaties, Treaty Doc. 105-19, 1996 U.S.T. LEXIS 57 (June 3 - August 15, 1996, signed by
Clinton, W.J.).
66
See 4 JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE ¶ 28.05 (2d ed. 1950).
67
Message to the Senate Transmitting the Canada-United States Legal Assistance Treaty, 1. PUB.
PAPERS 239 (February 22, 1988).
68
See supra note 63.
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bilateral or multilateral treaty (though this remains far more common in civil, rather than
criminal, matters).
The United States offers clear guidelines for when a district court may issue letters
rogatory to depose a witness in a criminal matter.69 The moving party must establish the
witness’s unavailability and materiality. In the event that a moving party fails to show
both unavailability and materiality, the correct standard for review on appeal is abuse of
discretion.70
The language in 28 U.S.C. § 1781(b) is typical among Western countries and permits two
modes of rogatory communication, sometimes (confusingly) called rogatory service in
Commonwealth texts and treaties:
(1) the transmittal of a letter rogatory or request directly from a foreign or
international tribunal to the tribunal, officer, or agency in the United States to
whom it is addressed and its return in the same manner; or
(2) the transmittal of a letter rogatory or request directly from a tribunal in the
United States to the foreign or international tribunal, officer, or agency to whom
it is addressed and its return in the same manner.
Note in the above statute that the correspondence is a request for assistance from tribunal
to tribunal and not a request for the execution of any law enforcement task. It is
important to distinguish between the privileges granted from one jurisdiction to another
in the gathering of evidence and the execution of the substantive law itself. 71
The requirement of letters rogatory is a common area in which practitioners and scholars
alike may confuse or transpose civil and criminal procedure. The most common route
around the traditional letters rogatory requirement is the Hague Service Convention.72 As
should be evident from its caption (and, if not, from its chapeau in the original text), it
does not pertain to criminal proceedings. Rather, the Convention offers the ability for
signatories to send judicial documents directly for service of process and basic functions
of civil procedure, eliminating the need for letters rogatory and diplomatic channels, so
69
See FED. R. CRIM. P. 15(a), 28(b)(3). Note that "[t]he district court of the district in which a
person resides or is found may order him to give his testimony or statement or to produce a
document or other thing for use in a proceeding in a foreign or international tribunal, including
criminal investigations conducted before formal accusation." 28 U.S.C. § 1782. The most recent
revision of these rules and statutes makes letters rogatory available to other “interested persons” in
addition to governments. See id. ("The order may be made pursuant to a letter rogatory issued, or
request made, by a foreign or international tribunal or upon the application of any interested
person.").
70
Needless to say, this is a very high standard of review. See United States v. Liner, 435 F.3d 920
(8th Cir. 2006) (involving use of letters rogatory to depose foreign citizen); but see U.S. v.
Drogoul, 1 F.3d 1546 (11th Cir. 1993) (abuse of discretion standard met by appellant).
71
“The courts of no country execute the penal laws of another.” The Antelope, 23 U.S. (10
Wheat.) 66 (1825) (Marshall, J.) (dictum).
72
Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or
Commercial Matters, opened for signature Nov. 15, 1965, 20 U.S.T. 361, 658 U.N.T.S. 163.
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long as a similar civil procedure function exists in the receiving country. 73 The
Convention is not, however, a route by which the United States could serve papers or
process upon a criminal defendant, as it is limited to sympathetic functions in civil
procedure and specifically excludes service in criminal cases. Further, even if there were
a civil matter at issue, while the United States is a signatory to the Convention, the
Commonwealth of Dominica is not.
B.
By Finding
“Finding” is an oft-used euphemism for the apprehension of a defendant, or his (often
involuntary) delivery to U.S. jurisdiction.74 The term comes from 28 U.S.C. § 1782:
"[t]he district court of the district in which a person resides or is found may order him to
give his testimony or statement or to produce a document or other thing for use in a
proceeding in a foreign or international tribunal, including criminal investigations
conducted before formal accusation.”
If an agent of the United States were to travel to Dominica, lure an unwitting Isidore into
international waters, then take him unwillingly from Dominica and transport him to the
United States, then Isidore would be “found” in the United States. The party defendant
need not affirmatively or willingly wander back into U.S. jurisdiction in order to be
“found” there.75
Suppose the FBI chartered a yacht. Further suppose that undercover FBI agents told
Isidore that, as an expert in large-scale marijuana trafficking, he was being solicited to
take part in a very profitable drug deal. In this hypothetical, once Isidore sets foot on the
yacht, the FBI could arrest him, put him below deck on a United States Navy ship, and
interrogate him for days. Then, after the interrogation finally concludes, Isidore could be
flown to Washington, D.C. where he is “found.”
Though it may sound more action film than law enforcement operation, this lure scenario
is precisely the fact pattern found in the still oft-discussed Yunis case.76 Fawaz Yunis, a
Lebanese hijacker who commandeered Royal Jordanian Flight 402 in 1985, was lured77
by FBI agents to join them on a yacht in international waters off the coast of Cyprus with
the promise of a lucrative international drug deal.78 The FBI then arrested and
73
The similarity constraint is rarely an issue, as letters rogatory customarily involve only basic
procedural maneuvers that can be achieved within nearly any codified procedural architecture.
74
For a very good reconciliation of competing jurisprudential narratives as to extradition and
jurisdiction questions, see C. L. Blakesley & O. Lagodny, Finding Harmony Amidst Disagreement
Over Extradition, Jurisdiction, The Role of Human Rights, and Issues of Extraterritoriality Under
International Criminal Law, 24 VAND. J. TRANSNAT’L L. 1 (1991).
75
For regions of the statutory landscape where the word “found” enjoys a particularly broad
meaning, see 49 U.S.C. App. § 1472(n) (1988) (United States v. Yunis, 924 F.2d 1086 (D.C. Cir.
1991)); see also 18 U.S.C. § 32(b) (interpreted in United States v. Yousef, 327 F.3d 56 (2d Cir.
2003));
76
Yunis, 924 F.2d 1086.
77
See a summary of the Yunis case within Yousef, 327 F.3d at 88-89.
78
Cf. United States v. Rosenthal, 793 F.2d 1214 (11th Cir. 1986), modified, 801 F.2d 378 (11th
Cir. 1986) (defendant apprehended, “found,” and prosecuted for operating large-scale drug
smuggling operation)
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interrogated him for days in the belly of a United States Navy munitions transport vessel.
Once the interrogation was over, the Navy transported him, against his will, to an aircraft
carrier from which he was flown to the United States. Once delivered to Washington,
D.C. by military aircraft, Yunis was then “found” and prosecuted.
The lineage of case law supporting this strategy of apprehension or ruse followed by
transport and “finding” is healthy and growing,79 with few success stories from
defendant-appellants. Any defendant (or defense attorney) who dismisses the possibility
of forcible rendition by the United States does so at his or her peril, and should study the
Frisbie80 doctrine in detail. Not leaving any ambiguity, the Court wrote in Frisbie that,
“the power of a court to try a person for a crime is not impaired by the fact that he had
been brought within the court's jurisdiction by reason of a 'forcible abduction.'”81
V.
DIPLOMATIC CHANNELS OR POLITICAL BARGAINING
Not to be outwitted or, worse, seem impotent, prosecutors often pursue defendants
through diplomatic channels. While no regulatory framework or treaty prohibits
diplomatic persuasion in this area, outright trades of money or political favors for
custodial control of individuals have fallen outside the official policy of the United States
since the Carter administration.82 While exchanges quid pro quo might be frowned upon,
this leaves plenty of room for “discussions” of various intensities involving the transfer
of fugitive persons of interest.
79
See, e.g., United States v. Alvarez-Machain, 504 U.S. 655 (1992) (district court not required to
affirmatively divest jurisdiction upon learning defendant was forcibly kidnapped and brought to
United States for trial); accord United States v. Cordero, 668 F.2d 32 (1st Cir. 1981); United
States v. Reed, 639 F.2d 896 (2d Cir. 1981) (holding same in case involving securities fraud);
Virgin Islands v. Ortiz, 427 F.2d 1043 (3d Cir. 1970); United States v. Toro, 840 F.2d 1221 (5th
Cir. 1988); United States v. Valot, 625 F.2d 308 (9th Cir. 1980) (holding same as to defendant
kidnapped by DEA agents in Thailand). Some district courts, having had occasion to examine the
issue in the context of extreme fact patterns, have held in accord. See United States v. Noriega,
746 F. Supp. 1506 (S.D. Fla. 1990) (same as to military invasion by United States Armed Forces
used to seize defendant); accord Matta-Ballesteros ex rel. Stolar v. Henman, 697 F. Supp. 1040
(S.D. Ill. 1988) (same as to defendant kidnapped from his home in Honduras); United States v.
Wilson, 565 F. Supp. 1416 (S.D.N.Y. 1983) (same as to defendant abducted from Libya in
absence of extradition treaty with Libya, though possibly weakened in light of Second Circuit’s
decision in Reed, supra, and current diplomatic climate with Libya).
80
Ker v. Illinois, 119 U.S. 436 (1886); Frisbie v. Collins, 342 U.S. 519 (1886).
81
But see A. Abramovsky & S. J. Eagle, U.S. Policy in Apprehending Alleged Offenders Abroad:
Extradition, Abduction, or Irregular Rendition?, 57 OR. L. REV. 51, 71 (1977) (raising interesting
issue of conflict between international law principles and gaining jurisdiction through Frisbieesque apprehensions).
82
See generally BAQER MOIN, KHOMEINI: LIFE OF THE AYATOLLAH 227 (2000); see also ROBERT
A. STRONG, WORKING IN THE WORLD: JIMMY CARTER AND THE MAKING OF AMERICAN FOREIGN
POLICY (La. State Univ. Press, 2000).
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2013
According to a cable leaked by Wikileaks,83 the Isidore case was of high enough priority
to be among the first topics of discussion between United States Ambassador Ourisman
and Dominica’s President Liverpool on January 24, 2007.
“When the Ambassador mentioned the need to close the extradition case of
Randy Isidore, [Prime Minister] Skerrit [of Dominica] stated that the
[Dominican] government has sought legal advice regarding this case. He stated
multiple times that technical assistance from the United States could help
Dominica answer the outstanding legal questions. However, PM Skerrit added
that, despite existing evidence against Isidore, he thought re-arresting Isidore
could potentially violate the Constitution84 and relevant laws.”85
Prime Minister Skerrit’s lay opinion as to the constitutionality of taking Isidore into
custody illustrates the degree of diplomatic latitude (and prosecutorial discretion)
involved once a fugitive defendant successfully relocates abroad. Note that any concerns
raised that capturing or detaining Isidore may violate his Constitutional rights would pose
problems for an American extradition argument, as this is an explicit exception in the
OECS MLAT.
PM Skerrit’s approach to negotiation with the United States is not regionally unique.
President Mejia’s administration in the Dominican Republic, citing inadequacies in the
extradition request package from the United States, released a person86 arrested in the
“Joselito.com” case.87 Upon review of government records and press releases, it seems
typical at any one time for between ten and twenty extradition requests from the United
States to be pending in Caribbean countries.88
VI.
POLICY IMPLICATIONS AND RECOMMENDATIONS
While the mechanical, legislative, and diplomatic aspects of extradition between two
countries may be simple in theory, they are nearly always complex in practice.
83
Cable to 05 Bridgetown 1455 from Ambassador Ourisman bearing subject “AMBASSADOR
OURISMAN'S INTRODUCTORY VISIT TO DOMINICA [caps sic]” United States Diplomatic
Cable (on file with author), available at WIKILEAKS, http://www.cablegatesearch.net/
cable.php?id=07BRIDGETOWN196&q=commonwealth-of-dominica (originally intended to be
classified until 29 January 2017).
84
This may be an allusion to Article III § 1(f) of the OECS MLAT, which allows Dominica to not
extradite an individual if it believes the execution of the extradition request would violate the
Constitutional rights of the person in question. If so, it may indicate Dominica is willing to
interpret and exercise its rights under the OECS MLAT more broadly than its Caribbean
neighbors.
85
Cable to 05 Bridgetown, supra note 83.
86
87
Dominican Republic: 2003-2004 International Narcotics Control Strategy Report, WIKILEAKS,
http://wikileaks.vicepresidencia.gob.bo/DOMINICAN-REPUBLIC-2003-2004 (last visited June
24, 2013).
88
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The United States, as a leader in the promulgation of consistent treaty language and
prosecutorial practices, must set an example by pursuing fleeing defendants with similar
tools and tenacity, regardless of the person’s destination. If the United States does not act
to make its prosecutorial pursuit of fugitive defendants more uniform and transparent, it
risks the appearances of either malicious or opportunistic prosecution.
Meanwhile, destination countries finding themselves in de facto custody of fleeing
persons of interest must work to reduce the barriers to diplomatic and judicial
communication between requesting and custodial states. If small states, particularly
those in Africa and the Caribbean, fail to do this, they may well risk their trade
relationships or terms in future trade agreements. A poor country like Dominica can ill
afford to weaken its ties to any major trading partner.
VII.
CONCLUSION
Though extradition is an unusual and inevitably political subject, it remains an important
piece of the international legal fabric. The Isidore case illustrates how a seemingly
simple scenario involving a fugitive person of interest can, and usually does, involve a
variety of legal procedures and precedent. For those interested in defense strategy, all
methods of procuring the defendant for trial should be considered and anticipated. For
prosecutors, the defendant’s rights and the rights of the sovereign nation that he or she –
however temporarily – resides within should be weighed and respected. No doubt these
calculations are emotional and frustratingly qualitative, but they are necessary for the
international legal fabric to endure extraterritorial enforcement efforts.
Students should look to the Isidore case as an example of the chasm separating theory
and practice. While, in theory, the extradition of Isidore should have been a simple
matter, it still has not transpired more than a decade after the crime in question occurred.
The difference between the clean language of laws and treaties and the messy haste of a
fleeing defendant are fascinating and instructive. This is a case that offers intriguing
facts, a mysterious defendant, and a series of prosecutorial missteps – it is both a good
story and an instructive series of events.
Prosecutors should learn from the Isidore case that timely action can prevent years of
procedural delay and diplomatic gridlock. In this case, there were half a dozen
opportunities to act more quickly, including the (un)timely issuance of the arrest warrant,
the opportunity to intercept Isidore in Miami, the lost chance to take custody of Isidore
directly from the Dominican prison, and so on. By acting slowly, prosecutors (and, to a
lesser extent, the U.S. State Department) took a relatively simple domestic criminal
matter and allowed it to grow into an extremely complex international incident. The
Isidore case remains a thorn in the side of the U.S. State Department and a diplomatic
problem for the United States more generally – most of all because the situation was
preventable.
Defense attorneys should take notice of the unique aspects that allowed Isidore to flee
and defend his position while abroad, even in the face of strong treaty language seeming
to run in favor of his extradition to the United States. Many events that turned in
Isidore’s favor were beyond his control (that the arrest warrant was not issued until
January 30, 2001 or that better immigration controls at airports would not be introduced
until after the 9/11 terrorist attacks), but some were within his control (his management
of his relationship with Attorney General Bruney and his preparation for his escape from
the United States to Dominica). This is the norm: a fugitive defendant will need the right
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combination of planning, luck, resources (social and financial), and legal context to
succeed.
As of this writing, Mr. Isidore remains a free man, presumably still residing on the island
of Dominica.
130
JOURNAL OF
VOLUME 1, ISSUE 2
Business Franchise Compliance in Mainland China
PAUL KOSSOF*
ABSTRACT
This article seeks to educate foreign attorneys practicing business franchise law in
the People’s Republic of China. It begins by explaining the most crucial
differences between practicing law in the PRC and in other countries. It then
provides the important provisions and an analysis of all of the PRC’s national
laws pertaining to business franchising. It translates and analyzes local and
industry-based regulations. This article also translates and discusses the most
current and important business franchise cases from the Supreme People’s Court,
Beijing Higher People’s Court, and Shanghai Higher People’s Court. It offers
advice to foreign attorneys and concludes by suggesting specific reforms to
current legislation on business franchising in the PRC.
ARTICLE CONTENTS
I.
II.
INTRODUCTION ........................................................................................... 132
BACKGROUND ............................................................................................. 132
A. Civil Law System of the People’s Republic of China .................. 133
1. Differences between Civil Law and Common Law Countries ..... 133
2. Laws, Regulations, and Court Opinions ..................................... 133
B. Laws, Regulations, and Court Opinions that Affect Business
Franchises ........................................................................................ 134
1. National Legislation .................................................................... 134
2. Ministry Measures and Opinions ................................................ 137
a. General National Measures and Opinions .......................... 137
b. Industry-Based Measures and Opinions ............................. 138
c. Region-Specific Measures and Regulations ....................... 140
d. Administrative Measures for Commercial Franchise
Information Disclosure .............................................................. 141
e. Court Opinions ................................................................... 143
C. Business Franchise Cases ............................................................... 145
1. Supreme People’s Court .............................................................. 145
2. Higher People’s Courts ............................................................... 146
3. Prominent Lower Court Cases .................................................... 148
III. ANALYSIS ................................................................................................. 149
A. Strengths and Weaknesses of the Regulation on the
Administration of Commercial Franchises .................................. 149
B. Assessing and Improving Specific Measures and Regulations ... 150
C. Potential Effects of the Revisions to the Information Disclosure
Measures .......................................................................................... 151
D. Court Cases: Effects and Insights ................................................. 151
E. General Suggestions to Improve Business Franchise System ..... 152
IV. CONCLUSION .......................................................................................... 152
131
2013
I.
INTRODUCTION
This article provides information on business franchising in the People’s Republic
of China (hereinafter “PRC”) that is essential to both domestic and foreign 2
business franchisors. Although this article focuses on Chinese laws and
regulations, it is especially useful to foreign franchisors that may not be fully
aware of important differences between the PRC and their home country. An
understanding of the PRC’s laws, regulations, and people’s courts 3 (hereinafter
“courts”) allows business franchisors to reduce potential liability originating from
franchise agreements in the PRC.
This article begins by providing a background of the civil law system of the PRC,
the laws and regulations that influence business franchises4, and how the courts
interpret business franchise laws and regulations. It then analyzes the strengths
and weaknesses of business franchise regulations, discusses the potential effects
of recent revisions, summarizes and comments on court cases and opinions, and
makes suggestions for improvements. It concludes by determining the adequacy
of the PRC’s business franchise laws and regulations as well as discussing the
perception of business franchising in the PRC.
II.
BACKGROUND
Part A of this section provides an overview of the civil law system of the PRC.
Part B then discusses the laws, regulations, and court opinions 5 that affect
* JD Candidate, May 2014, The John Marshall Law School; International Business and Trade
LLM Candidate, Dec. 2014, The John Marshall Law School. B.S. Spanish and Philosophy of
Law, Villanova University, Dec. 2010. My focus is Chinese law, specifically intellectual property
and business law, and related U.S. law and international treaties. I would like to thank Gentry
Sayad, co-chair of the China Practice Group of Fredrikson & Byron P.A., for his guidance on
performing research in the PRC. Some of the research for this article was conducted in Mandarin
and has not been made available to the reader. All of the court decisions are in Mandarin, and the
translations are my own.
2
“Foreign” as it appears in this article refers to entities that are not from the PRC.
3
The people’s courts are the trial courts and are typically the courts of first instance.
4
The Mandarin word for “business franchise” is “ 特许经营” (texujingying), which literally
translates as the “licensing of business operations.”
5
PRC courts provide two types of opinions: 1) opinions for specific cases and 2) opinions that a
higher court promulgates in order to guide lower courts. See Cases and Court Decisions:,
NOVEXCN.COM, http://www.novexcn.com/cases_court_decisions_main.html(last visited Feb. 23,
2013). “Court opinion” in the context of this article is the second type of opinion. An example of
such an opinion is the Opinions of the Supreme People's Court on Some Issues Concerning the
Application of the Civil Procedure Law of the People's Republic of China. See Opinions of the
Supreme People's Court on Some Issues Concerning the Application of the Civil Procedure Law
of the People's Republic of China (1992) (promulgated by the Judicial Committee of the Supreme
People’s Court, July 14, 1992, effective July 14, 1992).
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BUSINESS FRANCHISE COMPLIANCE CHINA
business franchises.6 Part C examines several business franchise cases.
A.
Civil Law System of the People’s Republic of China
The establishment of a formal legal structure in the PRC occurred relatively
recently. In 1910, Chinese legal scholars began translating and studying German
civil law.7 The PRC adopted its civil law in 1930.8 Since then, the PRC has
developed its laws and regulations under a civil law system.9
1.
Differences between Civil Law and Common Law
Countries
There are fundamental differences between civil law and common law. The most
significant difference between the two systems is that court decisions do not have
precedential value in civil law.10 This signifies that, unlike in the U.S., which
follows a common law system, PRC courts do not have to follow the decisions of
other courts. The PRC’s civil law system often confuses foreign lawyers that do
not have experience in civil law countries because they are unable to use previous
cases in order to assess how a court would decide on an issue.
The PRC’s legislation also differs from legislation in common law countries.
U.S. lawmakers generally seek to be as precise as possible when drafting
statutes. 11 In contrast, the PRC’s laws and regulations are often vague. PRC
lawyers and judges resolve the ambiguities in the civil code through inferences of
general legal principles. 12 This further creates confusion for many foreign
attorneys.
2.
Laws, Regulations, and Court Opinions
An attorney practicing in the PRC must be aware of the relationship between
laws, regulations, and court opinions.
The National People’s Congress
(hereinafter “NPC”) is the PRC’s legislative body. 13 Its primary role is to ratify
6
Author has compiled the list of laws, regulations, and ministry opinions discussed in this article
from a legislative and statutory title search (法规标题) for“特许经营” on Pkulaw.cn.
7
Hou Liyang, A Brief Introduction of Chinese Civil Law, CHINALAWINFO.COM,
http://article.chinalawinfo.com/Article_Detail.asp?ArticleId=32715 (last visited Feb. 23, 2013).
8
Id.
9
Id.
10
Paul Jones, The Regulation of Franchising in China and the Development of a Civil Law Legal
System, 2 CHINESE L. & POL'Y REV. 78, 79 (2006).
11
Id.
12
Id.
13
State Structure of the People’s Republic of China, NAT’L PEOPLE’S CONG.,
http://www.npc.gov.cn/ englishnpc/stateStructure/node_3826.htm (last visited Feb. 22, 2013).
133
2013
134
bills and elect the heads of executive and judicial institutions.14 The legislative
permanent body is called the Standing Committee, and it passes most of the
PRC’s laws.15 These laws apply to the entire country.
The PRC allocates administrative functions to various ministries, 16 and these
ministries promulgate measures 17 according to their respective administrative
powers. Local administrations for industry and commerce (hereinafter “AICs”)
also have the power to implement their own regulations.18 The Supreme People’s
Court and the higher courts will also release opinions to lower courts in order to
clarify how courts should interpret the law.
B.
Laws, Regulations, and Court Opinions that Affect Business
Franchises
Attorneys whose clients franchise or intend to franchise businesses in the PRC
should understand the various laws, regulations, and court opinions that affect
business franchisors. The Regulation on the Administration of Commercial
Franchises (hereinafter “BFL Law”) is the primary business franchising law. 19
The Contract Law of the People's Republic of China (hereinafter “Contract Law”)
plays an important role in all contract formation and contractual disputes. 20 There
are also various ministry measures on business franchising. Some of these
measures only apply to specific industries or geographic areas. Ministries may
also revise their measures. As a result, attorneys must be aware of the possible
effects that revisions might have on their clients. Court opinions and decisions
also provide a glimpse into how a court may treat a business franchising dispute.
1.
National Legislation
The PRC adopted the BFL Law in 2007. This law establishes the basic
requirements and guidelines for business franchising in the PRC. Ministries and
local governments base their measures and regulations on this law. The purpose
of the BFL Law is to promote the commercial franchise industry and to maintain
14
Todd Schneider, David v. Goliath?: The Hong Kong Courts and China’s National People’s
Congress Standing Committee, 20 BERKELEY J. INT'L L. 575, 576 (2002).
15
16
Id.
The
Organizational
Structure
of
the
State
http://english.gov.cn/links.htm - 1 (last visited Feb. 22, 2013).
Council,
WWW.GOV.CN,
17
The common English term for both ministry regulations and local regulations is “measures.”
Practitioners often refer to ministry regulations as “measures,” and to local regulations as
“regulations.”
18
See State Structure of the People’s Republic of China, supra note 13.
19
See generally Regulation on the Administration of Commercial Franchises (2007) (promulgated
by the State Council of the People’s Republic of China, Jan. 31, 2007, effective May 1, 2007).
20
See generally Contract Law of the People's Republic of China (1999) (promulgated by the
Standing Committee of the Ninth National People’s Congress, Mar. 15, 1999, effective Oct. 1,
1999).
2013
market order. 21 The BFL Law provides general guidelines to franchisors,
franchisees, ministries, and local governments.22 Many of the articles in the BFL
Law are purposefully vague in order to allow ministries and local governments to
implement their own guidelines.23
Article 3 of the BFL Law defines a commercial franchise as a business where a
company that has a “registered trademark, enterprise mark, patent, know-how or
any other business resource . . . confers the said business resource to any other
business . . . by means of contract, and the franchisee undertakes business
operations under the uniform business model . . ., and pay[s] franchising fees[.]”24
In effect, a company may become a franchisor if it 1) confers a business resource
2) in a written contract 3) that includes a franchising fee. The scope of “business
resource” is very broad. In comparison, the U.S. Federal Trade Commission rule
on business franchises (hereinafter “FTC Rule”) provides that a business
franchisor must confer a trademark, and that “trademark” includes service marks,
names, logos, and other commercial symbols.25 Unlike the FTC Rule, the BFL
Law provides that conferring a patent or business know-how satisfies the first
element of a business franchise.
As previously mentioned, AICs enact their own regulations on business
franchising. Article 5 defines the scope of this power and states that central and
local AICs are responsible for both the supervision and administration of business
franchises within their jurisdiction. 26 The BFL Law institutes several
requirements for local AICs. For example, Article 9 provides directives for the
archival filing of local franchise information.27
The BFL Law also establishes various requirements for franchisors. One of these
requirements is that the franchisor must have at least two direct sales stores that
have been in business for more than one year.28 It also outlines the information
that a franchisor must submit to the local AIC, 29 the terms that a business
franchise contract must incorporate,30 and the information that a franchisor must
21
Regulation on the Administration of Commercial Franchises, supra note 19, art. 1.
22
See generally id.
23
See Paul Jones & Erik Wulff, Franchise Regulation in China: Law, Regulations, and
Guidelines, 27 FRANCHISE L.J. 57, 58 (2007).
24
25
See Disclosure Requirements and Prohibitions Concerning Franchising and Business
Opportunity Ventures; Final Rule, 16 C.F.R. pts. 436–437, § 436.1 (2007).
26
27
See id. art. 9.
28
Id. art. 7.
29
See id. art. 8.
30
See id. art. 11.
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2013
send to its franchisees. 31 The BFL Law also explicitly states the penalties
associated with violations of its provisions.32
The BFL Law is similar to the FTC rule wherein most of its provisions are
requirements for franchisors. Nonetheless, the BFL Law also imposes restrictions
on franchisees. Article 18 provides that a franchisee cannot transfer a franchise
without the consent of the franchisor. 33 It also states that a franchisee cannot
divulge the franchisor’s trade secrets.34
There are many ambiguities in the BFL Law that provide leeway to ministries,
local governments, and courts. For example, the requirement of two direct sales
stores does not explain whether the stores can be owned by an affiliate or whether
a third party may manage a direct sales store.35 The Contract Law clarifies some
of the contractual ambiguities in the BFL Law.
The Contract Law provides clarification for both attorneys and courts when
interpreting the BFL Law. A simple example is the definition of “written
contract.” The BFL Law states that all franchises require a written contract.
However, it does not provide a definition for “written contract.” Article 11 of the
Contract Law explains that a written contract is a “form such as a written
contractual agreement, letter, electronic data text (including a telegram, telex, fax,
electronic data exchange and e-mail) that can tangibly express the contents
contained therein.” 36 Although this is a relatively basic example of how the
Contract Law clarifies a part of the BFL Law, the definition of “written contract”
has an effect on if and when two parties establish a business franchise.
Even though the BFL Law provides the required terms for a business franchise
agreement, it does not state when a court will void a contract. Article 52 of the
Contract Law provides that a contract is null and void if there is fraud, a malicious
conspiracy, an illegitimate purpose, harm to the public interests or a violation of
the compulsory provisions of other laws and regulations.37 Courts cite this article
very often because it allows them to modify or revoke a contract.38
Article 94 is another article in the Contract Law that courts often invoke when
determining business franchise contracts. This article provides the circumstances
31
See id. art. 22.
32
See id. arts. 24–30.
33
Id. art. 18.
34
Id.
35
See Jones & Wulff, supra note 23, at 58.
36
Contract Law of the People's Republic of China, supra note 20, art. 11.
37
Id. art. 52.
38
Id. art. 54; see, e.g., Huanghaiyan Su Beijing Hansen Meirong Youxian Gongsi Texu Jiameng
Hetong Jiufenan ( 黄海燕诉北京汉森美容有限公司特许加盟合同纠纷案 ) [Franchising
Agreement Case of Huanghaiyan v. Handsome Cosmetics Co., Ltd.], 2005 CHAOMIN CHUZI
24486 (Beijing Mun. Chaoyang District People’s Ct. Nov. 16, 2005).
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wherein a party may terminate a contract.39 A final example of an article that
appears in business franchise cases is Article 97. This article allows a party to
seek remedial measures and compensation for the termination of a contract.40
2.
Ministry Measures and Opinions
a.
General National Measures and Opinions
There are two general national measures and one ministry notice based on the
BFL Law. This section discusses one of the measures and the ministry notice.
The second measures are discussed in subsection I.2.d. The first measures are the
Administrative Measures for Archival Filing of Commercial Franchise
(hereinafter “Archival Filing Measures”). 41 The Ministry of Commerce
(hereinafter “MOFCOM”) adopted the Archival Filing Measures in order to
regulate the administration of business franchising.42 Article 3 of these measures
states that local AICs are the archival filing organs for business franchises. 43
Perhaps the most important article in the Archival Filing Measures is Article 5.
This article provides a detailed list of the materials that a franchisor must submit
to the local AIC.44 As previously discussed, Article 8 of the BFL Law also offers
a guide to filing archival information.45 The Archival Filing Measures expands
on the BFL Law. The notable additions in the Archival Filing Measures are: 1)
information about the distribution of all the franchisor’s stores in the PRC, 2) a
photocopy of the registration certificates for business resources relating to the
franchise, 3) detailed instructions on adhering to Article 7 of the BFL Law, and 4)
a table of contents for the franchisor’s brochure. Article 12 of the Archival Filing
Measures requires local AICs to submit archival information to MOFCOM within
ten days of receipt. 46 An interesting provision in these measures is that they
govern overseas franchisors and also apply to Hong Kong, Macao, and Taiwan
“by analogy.” 47 This provision is a perfect example of how PRC laws and
regulations attempt to define the relationship between Mainland China, special
administrative regions, and foreign countries.
39
Contract Law of the People's Republic of China, supra note 20, art. 94.
40
Id. art. 97.
41
See Administrative Measures for Archival Filing of Commercial Franchise (2007) (promulgated
by the Ministry of Commerce of the People’s Republic of China, Apr. 6, 2007, effective May 1,
2007).
42
Id. art. 1.
43
Id. art. 3.
44
See id. art. 5.
45
See Regulation on the Administration of Commercial Franchises, supra note 19, art. 8.
46
See Administrative Measures for Archival Filing of Commercial Franchise, supra note 41, art.
12.
47
See id. art. 17.
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MOFCOM promulgated the Notice of the General Office of the Ministry of
Commerce on Further Effectively Conducting the Administration of Commercial
Franchise (hereinafter “MOFCOM Notice”) in 2012 in order to clarify how
government entities should implement the BFL Law and the two general ministry
measures. 48 The MOFCOM Notice provides that MOFCOM established the
Office of the Administration of Commercial Franchise with the purpose of
thoroughly implementing business franchise laws and regulations. 49 Section 1 of
the MOFCOM Notice states that provincial AICs may transfer the responsibility
of examining filing materials to local AICs. Section 1 informs AICs how to
organize reports and what to do if a report falls within the scope of a civil dispute.
Section 5 may be the most important section of the MOFCOM Notice. This
section addresses low business franchise filing rates by stating that local AICs
shall organize a series of public activities in order to circulate business franchising
information. Section 5 also informs local AICs that they have the responsibility
of choosing franchise exhibiters for AIC-sponsored events. It finally states that
local AICs should form a black-list of dishonest franchisors. It is likely that
MOFCOM circulated this notice because of widespread noncompliance.
However, although the MOFCOM Notice asserts that local AICs should perform
various duties associated with the BFL Law, the MOFCOM Notice is ultimately
merely a circular and might not have a substantial effect on local AICs.
b.
Industry-Based Measures and Opinions
Ministries may also adopt measures pertaining to specific industries. There is one
administrative agency opinion and measures that affect specific industries. The
Ministry of Construction promulgated the Measures for the Administration on the
Franchise of Municipal Public Utilities (hereinafter “Public Utilities Measures”)
in 2004.50 The Ministry of Construction created the Public Utilities Measures in
order to increase the development of municipal public utilities through
franchising.51 The measures state that local AICs may enact franchising projects
for public utilities.52 These measures then place various restrictions on how local
AICs choose franchisors. Franchisors must bid for public utility franchising
projects. 53 Article 7 of these measures provides the general requirements for
bidders. These include that the bidder must have corresponding registered capital
or equipment, good financial status, relevant practical experience, and feasible
management plans.54
48
See Notice of the General Office of the Ministry of Commerce on Further Effectively
Conducting the Administration of Commercial Franchise (2012) (promulgated by the Ministry of
Commerce of the People’s Republic of China, Aug. 17, 2012, effective Aug. 17, 2012).
49
Id.
50
See Measures for the Administration on the Franchise of Municipal Public Utilities (2004)
(promulgated by the Ministry of Construction of the People’s Republic of China, Feb. 24, 2004,
effective May 1, 2004).
51
Id. art. 1.
52
Id. art. 3.
53
Id. art. 7.
54
Id.
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The Public Utilities Measures also establish contractual requirements that are
more specific than the requirements in the BFL Law and the Contract Law. A
franchising agreement for public utilities must include the following: the contents,
area, scope and period of validity of the franchising; the standards for the products
and services; the methods or standards for determination of the price and charges,
and the adjustment procedures thereof; the ownership and disposal of the
facilities; the maintenance, renovation, and reconstruction of the facilities;
security management; guarantee for performance of contract; termination and
alteration of the franchise right; liabilities for breach of contract; and ways of
dispute resolution.55 The measures further provide that the term of a franchising
agreement cannot exceed thirty years, 56 a franchisor must apply to cancel a
contract,57 and a local AIC must submit an answer to a cancellation request within
three months. 58 The Public Utilities Measures also impose mandatory
requirements for public utility franchisors. These include making scientific and
reasonable annual production and supply plans, accepting supervision and
inspection from the local AIC, and submitting development plans and annual
reports to the local AIC.59 Surprisingly, the Public Utilities Measures provide that
no enterprise that has a public utility right may shut down or go out of business
without approval from the local government.60
The State Economic and Trade Commission (hereinafter “SETC”) published
Some Opinions of the State Economic and Trade Commission on Regulating the
Franchise of Gas Stations (hereinafter “SETC Gas Station Opinion”) in 2008 in
order to regulate gas station franchises and the circulation of oil products. 61 The
SETC Gas Station Opinion defines the franchise of gas stations as an operation
wherein 1) the franchisor authorizes other gas stations to use its trade name,
know-how, operational mode, operation technology or service standards, etc.,
related to gas station operation, 2) the authorized gas stations engage in the retail
of oil products and relevant services under a unified franchise system, and 3) the
franchisee pays franchise fees to the franchisor.62 These measures state that only
PetroChina (中石油公司), China Petroleum & Chemical Corporation (中石化公司
), and their subsidiaries may franchise gas stations.63 These are very large stateowned corporations (hereinafter “SOEs”), and it is very unlikely that the law
would change to allow another domestic or foreign oil company to franchise gas
stations in the PRC. The SETC Gas Station Opinion then provides the various
duties and rights associated with gas station franchising. Unlike the other
franchise measures, the SETC Gas Station Opinion states that a provincial AIC
55
Id.
56
Id. art. 12.
57
Id. art. 17.
58
Id.
59
Id. art. 11.
60
Id. art. 23.
61
See Some Opinions of the State Economic and Trade Commission on Regulating the Franchise
of Gas Stations (2008) (promulgated by the State Administration of Foreign Exchange, Aug. 19,
2008, effective Aug. 19, 2008).
62
Id. § 1.
63
Id. § 3.
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may authorize a local AIC to investigate gas station franchisees if the local AIC
suspects trademark infringement, the sale of a third party’s oil products, the
unilateral raising of oil prices, the transfer of the right to franchise without the
franchisor’s consent, or the failure to meet security requirements.64
c.
Region-Specific Measures and Regulations
Local governments may also regulate business franchising through legislation.
Only two local governments have actually enacted such legislation. As discussed
above,65 the Ministry of Construction promulgated the Public Utilities Measures
in 2004. One year later, the municipal governments of Tianjin66 and Shenzhen67
adopted additional measures for the regulation of municipal public utilities.
The Administrative Measures for the Franchise Operation of the Municipal Public
Utilities of Tianjin Municipality (hereinafter “Tianjin Public Utilities
Regulation”) reiterates portions of the Public Utilities Measures and clarifies how
to implement the measures.68 The Tianjin Public Utilities Regulation states that
the following public utilities are open to franchising in Tianjin: bus (trolley),
passenger taxi, subway, and urban railway; urban public water supply and
outward water supply by self-built facilities; urban pipeline gas; urban heating
supply; sewage treatment; waste disposal; and other public utilities determined by
the municipal government. 69 This regulation also provides that the Tianjin
municipal construction administrative department has the responsibility of reorganizing a bid one year prior to the expiration of a franchise operation. 70
Additionally, the regulation assigns supervision and management duties to the
city’s various administrative departments. 71 The Tianjin Public Utilities
Regulation also authorizes the Tianjin municipal construction administrative
department to fine entities and individuals that conduct illegal franchise
operations.72
The Regulations of Shenzhen Municipality on the Operation of Public Utilities
under Franchise (hereinafter “Shenzhen Public Utilities Regulation”) is much
64
Id. § 17.
65
See supra Section II.A.2
Tianjin is one of the four “直辖市” (zhixiashi), which means “self-autonomous city.” The other
self-autonomous cities are Beijing, Chongqing, and Shanghai. Unlike other municipalities, which
operate under provincial governments, self-autonomous cities are not part of a province and,
therefore, have both municipal and provincial powers.
66
67
Shenzhen is a special economic zone in Guangdong Province and is located near Hong Kong.
68
See Administrative Measures for the Franchise Operation of the Municipal Public Utilities of
Tianjin Municipality (2005) (promulgated by the Tianjin Municipal People’s Government, June
27, 2005, effective Sept. 1, 2005).
69
Id. art. 6.
70
Id. art. 12.
71
Id. art. 16.
72
Id. art. 20.
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more detailed than the Tianjin Public Utilities Regulation.73 The Shenzhen Public
Utilities Regulation also reiterates portions of the Public Utilities Measures and
assigns duties to municipal departments. Unlike the Tianjin Public Utilities
Regulation, it provides a method for the municipal government to choose
franchisors if it cannot do so through an auction or bid. 74 The municipal
government may also determine a franchise through recruitment. 75 This is done
by 1) publishing which public utilities are subject to franchising, 2) sending
invitations to applicants, 3) determining candidates through investigation and
negotiation, 4) choosing a candidate through an evaluation committee, and 5)
negotiating with the candidate.76 The Shenzhen Public Utilities Regulation also
states that the municipal government must grant the franchise of each specific
public utility industry to at least two franchisees unless doing so would be
impractical. 77 This regulation imposes several financial disclosure regulations
such as that each franchisee shall annually publish audited financial statements.78
d.
Administrative Measures for Commercial Franchise
Information Disclosure
The BFL Law and the two general ministry measures are the primary guidelines
for business franchising in the PRC. This article has already discussed the
Archival Filing Measures.79 The other measures are the Administrative Measures
for Commercial Franchise Information Disclosure (hereinafter “Revised
Information Disclosure Measures”). 80 The Revised Information Disclosure
Measures were recently adopted in 2012, and replaced the Administrative
Measures for the Information Disclosure of Commercial Franchise (hereinafter
“Original Information Disclosure Measures”). 81 The Revised Information
Disclosure Measures retain most of the Original Information Disclosure
Measures. However, there are several important differences between the two
measures.
The Original Information Disclosure Measures applied to franchisors and
affiliated companies. The term “affiliated companies” referred to the parent
73
See Regulations of Shenzhen Municipality on the Operation of Public Utilities under Franchise
(2006) (promulgated by the Standing Committee of the Shenzhen Municipal People’s Congress,
Sept. 27, 2005, approved Dec. 2, 2005, effective Mar. 1, 2006).
74
Id. art. 9.
75
Id.
76
Id.
77
Id. art. 11.
78
Id. art. 26.
79
See supra note 41.
80
See Administrative Measures for Commercial Franchise Information Disclosure (2012
Revision) (promulgated by the Ministry of Commerce of the People’s Republic of China, Jan. 18,
2012, effective Feb. 23, 2012).
81
See Administrative Measures for the Information Disclosure of Commercial Franchise (2007)
(promulgated by the Ministry of Commerce of the People’s Republic of China, May 1, 2007,
effective May 1, 2007).
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company of the franchisor, subsidiaries that were either completely or mostly
owned by franchisor either directly or indirectly, and companies that were either
completely or mostly owned by a party that directly or indirectly owned all or
most of the equities of the franchisor. 82 These measures established detailed
information disclosure requirements for franchisors and affiliated companies.83 A
franchisee could cancel a business franchising contract if a franchisor concealed
or misrepresented any of the information outlined in the Original Information
Disclosure Measures. 84 Furthermore, a franchisee could expose a violation of
these measures to the local AIC which could then order the franchisor to make a
correction, fine the franchisor between 10,000 RMB (app. 1,600 USD) and 50,000
RMB (app. 8,000 USD), and, if the circumstances are egregious, fine the
franchisor 50,000 RMB to 100,000 RMB (app. 16,000 USD) as well as make a
public announcement.85
Article 5 outlined the disclosures that a franchisor must make to a franchisee
including basic contact information, the registered capital amount, and a brief
introduction of the franchisor’s business operations.86 A franchisor also had to
disclose the last five years of information related to bankruptcy. 87 Other
information included the franchisor’s business resources, franchise fees, and
services that the franchisor would offer to the franchisee.88 Article 5 also required
the franchisor to submit franchise outlet investment budgets, a list of its
franchisees in the PRC, abstracts of the last two years of audited financial
statements, and information about major lawsuits and arbitrations related to
franchise business operations within the last five years. 89 “Major Lawsuit or
arbitration,” as defined by this article, referred to a lawsuit or arbitration for a sum
of 500,000 RMB (app. 80,200 USD) or more. Finally, this article also required
the disclosure of serious illegal operations, determined by a fine between 300,000
RMB (app. 48,100 USD) and 500,000 RMB or a criminal penalty, the text of the
franchise contract, and samples of any other contract that a franchisor required the
franchisee to sign.90
The first difference between the two measures is that the Revised Information
Disclosure Measures broaden the definition of “affiliated companies” to include
natural person shareholders.91 Another change is that franchisors only have to
provide the last two years of information related to bankruptcy. 92 Unlike the
82
Id. art. 3.
83
See id. art. 5.
84
Id. art. 9.
85
Id. art. 10.
86
Id. art. 5.
87
Id.
88
Id.
89
Id.
90
Id.
91
See Administrative Measures for Commercial Franchise Information Disclosure, supra note 80,
art. 3.
92
Id. art. 5.
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original measures, which required a franchisor to disclose information relating to
major lawsuits and arbitration, the revised measures extend the disclosure
requirement to all litigation and arbitration in the past five years. 93 The revisions
also remove the 500,000 RMB cap for the disclosure of illegal operations. 94
Finally, the revised measures cite to the BFL Law for criminal penalties instead of
explicitly stating the penalties.95
e.
Court Opinions
In 2011, the Beijing Higher People’s Court promulgated an opinion on how courts
should interpret commercial franchise contract disputes. This opinion may be
found in the Notice of the Higher People's Court of Beijing Municipality on
Issuing the Guiding Opinions of the Higher People's Court of Beijing
Municipality on Several Issues Concerning the Application of Law in the Trial of
Disputes over Commercial franchise Contracts (hereinafter “Business Franchise
Contract Opinion”).96 The Business Franchise Contract Opinion is fairly detailed
and informs the courts how to address specific issues stemming from the BFL
Law and the Contract Law. 97 However, it notes that if a court encounters a
discrepancy between the Business Franchise Contract Opinion and any law or
regulation, then the court should apply the law or regulation.98 As this opinion
originates from the Beijing Higher People’s Court, it directly applies to the No.1
Beijing Intermediate People’s Court, the No.2 Intermediate Beijing People’s
Court, and all of the people’s courts. 99 Nonetheless, this opinion is the only
opinion on business franchising contracts, and it is highly likely that other high
courts have considered this opinion when analyzing business franchise disputes.
The Business Franchise Contract Opinion serves two primary functions. Firstly,
it clarifies portions of the BFL Law. Secondly, it provides answers to questions
of law arising out of the BFL Law and the Contract Law. It begins by simplifying
the definition of commercial franchise. This opinion states that “[t]he basic
features of franchise are that: 1. the franchiser owns a registered trademark, logo,
patent or any other business resource; 2. the franchisee uses the franchiser's
business resource under a specific business model upon the franchiser's
authorization; and 3. the franchisee pays franchise fees to the franchiser.”100 It
then clarifies that the term “business resource” also extends to overall business
93
Id.
94
Id.
95
Id. art. 10.
96
See Notice of the Higher People's Court of Beijing Municipality on Issuing the Guiding
Opinions of the Higher People's Court of Beijing Municipality on Several Issues Concerning the
Application of Law in the Trial of Disputes over Commercial franchise Contracts (2011)
(promulgated by the Judicial Committee of the Higher People's Court of Beijing Municipality,
Feb. 24, 2011, effective Feb. 24, 2011).
97
Id.
98
Id.
99
Id.
100
Id. art. 1.
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images with unique features, patents, unregistered trademarks, and trade
secrets.101 This opinion states that a franchise contract may include both a lump
franchise fee and franchise fees by installment.102 In reference to the direct sales
store requirement in the BFL Law, this opinion further requires that the stores 1)
be running for over one year, and 2) be associated with the franchisor’s business
resources that are used to operate the franchise.103
The Business Franchise Contract Opinion also answers many questions of law
that arise from business franchise disputes. It provides that a contract name or
clause similar to “this contract is not a franchise contract” will not change the
nature of a business franchise agreement.104 Therefore, a franchisor cannot avoid
duties under franchise laws and regulations by denying the existence of a
franchise agreement. This opinion also states that although a franchising
operation should have a written franchise contract, a court shall nonetheless
uphold an oral franchise agreement if the franchisor permits the franchisee to
operate the franchise but does not do so in written form.105 Likewise, even though
a franchisor should file required information with the local AIC within 15 days
after the signing of a contract, the franchisor’s failure to file generally should not
affect the validity of a franchise agreement.106
The second half of the Business Franchise Contract Opinion provides how a court
should address specific circumstances surrounding business franchise disputes.
For example, if a franchisor’s business resource expires during the time of a
franchising contract, then the contract’s legal term is null after the expiration of
the business resource. 107 This opinion also provides that the franchisor’s
advertisements, brochures, and other promotional materials shall be deemed as an
offer.108 Furthermore, the promises and explanations made by the franchisor may
be deemed as elements of the contract if they have a significant impact on the
conclusion of the contract.109 An example of a duty placed on the franchisee is
that a failure to return a business resource results in the duty to pay for all of the
franchisor’s losses resulting from the failure.110 This opinion is a very useful tool
for understanding how the BFL Law and Contract Law affect business franchise
disputes.
101
Id. art. 2.
102
Id. art. 5.
103
Id. art. 8.
104
Id. art. 3.
105
Id. art. 6.
106
Id. art. 7.
107
Id. art. 11.
108
Id. art. 14.
109
Id.
110
Id. art. 21.
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C.
Business Franchise Cases
Business franchise dispute cases can be found throughout the PRC. In fact, there
are nearly 1,000 reported business franchise cases. 111 However, business
franchise disputes are concentrated in Beijing and Shanghai. These two
municipalities have heard approximately 450 of these cases. 112 This section
discusses the only Supreme People’s Court business franchise case, the most
recent cases from the Beijing and Shanghai Higher People’s Courts, and
prominent lower court cases.
1.
Supreme People’s Court
The Supreme People’s Court has only heard one business franchising case. 113
This case, the Appeal of the Franchising Agreement Case of Petitioners Fuyuping
and Lixiurong Against Plaintiffs Caohuozhu and Mingzui International Food and
Beverage Administration (Beijing) Co., Ltd. (hereinafter “SPC Business
Franchising Case”), was decided on Dec. 12, 2011. 114 The parties in the SPC
Business Franchising Case negotiated and signed a business franchising
agreement for an ice cream store franchise. The franchisees were Fuyuping and
Liuxiurong, and the franchisors were Caohuoju, Xiejinlian, and Mingzui
International Food and Beverage Administration (Beijing) Co., Ltd. The
franchisees sued the franchisors in Fujian Province. The case went through the
trial court, the Fujian Higher People’s Court, and finally to the Supreme People’s
Court. The franchisees argued that the franchisors violated the parties’ noncompete agreement by opening a store with the same mark as the mark in the
franchise agreement. The franchisees stated that they were unable to obtain a
business license under the mark because the franchisors were already running a
similar business with the same name. The franchisees further argued that the
111
A search performed on Feb. 11, 2013 for “特许经营合同纠纷” (business franchise contractual
disputes) under “ 案由分类 ” (case classification) in the “ 民商经济 ” (civil businesses and
economy) subsection of “案例与裁判文书” (case and decision documents) under the “司法案例”
(judicial cases) on Chinalawinfo.com yielded 967 results.
112
Searches for courts under the administrative jurisdiction of the Beijing and Shanghai
intermediate courts on “ 审理法院” (trial court) for the terms in note 111 resulted in 172 results
for the courts under the No.1 Beijing Intermediate People’s Court (北京市第一中级人民法院辖
区), 43 results under the No.2 Intermediate Beijing People’s Court (北京市第二中级人民法院辖
区), 117 results under the No.1 Shanghai Intermediate People’s Court (上海市第一中级人民法院
辖区), and 116 results under the No.2 Shanghai Intermediate People’s Court (上海市第二中级人
民法院辖区).
113
A search for the Supreme People’s Court (最高人民法院) under the process in note 112
yielded one result.
114
See Shenqing Zai Shenren Fuyuping, Lixiurong Yu Bei Shenqingren Xiejinlian, Caohuozhu Ji
Mingzui Guoji Canyin Guanli (Beijing) Youxian Gongsi Texu Jingying Hetong Jiufenan (申请再
审人付玉平、李秀荣与被申请人谢金莲、曹火珠及名嘴国际餐饮管理（北京）有限公司特
许经营合同纠纷案) [Appeal of the Franchising Agreement Case of Petitioners Fuyuping and
Lixiurong Against Plaintiffs Caohuozhu and Mingzui International Food and Beverage
Administration (Beijing) Co., Ltd.], 2011 MINSHENZI 1262 (Sup. People’s Ct. Dec. 12, 2011)
(Chinalawinfo).
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franchisors violated the BFL Law and the Information Disclosure Measures by
failing to inform the franchisees about the store. Finally, the franchisees
contended that the franchisors violated the direct sales store requirement.
The franchisors argued that although they opened a store under the same mark,
this occurred before the parties entered into the franchise agreement. They also
showed that the franchisee had not presented any evidence that they had
attempted to apply for a business license. According to the franchisors, the
franchisees had chosen not to apply for a business license because of financial
losses due to poor management. They finally argued that they had the right to
develop the mark because they were the mark’s representative.
The Supreme People’s Court determined that the franchisors should have
disclosed information regarding the store. However, it also decided that the
franchisors had not violated the non-compete agreement because they opened the
store before the conclusion of the agreement. The court stated that the franchisees
had not offered any proof that they could not register a business license nor had
they shown that the franchisor’s store affected the application. Finally, the
Supreme People’s Court found that the franchisors violated the direct sales store
requirement, and that the local AIC should fine the franchisor and issue an
announcement. It concluded by rejecting the franchisees’ appeal.
2.
Higher People’s Courts
The latest business franchising case from the Beijing Higher People’s Court, the
Franchising Agreement Case of Chongqing City Jiafu Fuqiao Massage Services
Co., Ltd. v. Ren Guohai et. al. (hereinafter “Jiafu Fuqiao v. Ren Guohai”), was
decided on Oct. 10, 2012.115 The franchisor, Jiafu Fuqiao, negotiated and signed
a franchise agreement with the franchisee, Ren Guohai. Afterwards, the
franchisee set up a store under the franchisor’s trademark and began operations.
The franchisee paid a lump franchising fee, paid for the set-up costs, and
continued to pay a franchising fee to the franchisor during the term of the
franchising agreement. The contract held that the franchisor would employ
support staff in the franchisee’s store. The franchisor failed to maintain the staff
as stipulated in the agreement and, as a result, the parties began to argue over the
franchise arrangement. Eventually, the franchisor ordered its support staff to
leave the franchisee’s store. The franchisee then continued to operate the store as
its own company and sued the franchisor for a breach of the franchising
agreement.
The trial court found that the agreement was a valid franchising agreement. It
determined that the franchisor had substantially breached the contract, and that the
Contract Law dictated that the franchisee should be made whole. The trial court
ruled that 1) the franchisor did not have to pay back the initial franchising because
115
See Chongqing Fuqiao Baojian Anmo Fuwu Youxian Gongsi Yu Renguo Haideng Texu
Jingying Hetong Jiufen Shangsuan (重庆家富富侨保健按摩服务有限公司与任国海等特许经营
合同纠纷上诉案) [Appeal of the Franchising Agreement Case of Chongqing City Jiafu Fuqiao
Massage Services Co., Ltd. v. Ren Guohai et. al.], 2012 Gaoming Zhongzi 3813 (Beijing Mun.
Higher People’s Ct. Oct. 18, 2012) (Chinalawinfo).
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the franchisee also breached the contract by operating the store as its own, 2) the
franchisor had to pay back the entire sum of all of the other franchise fees, 3)
ordered the franchisor to pay damages, and 4) denied the franchisee’s other
requests for relief. The franchisor then appealed the trial court’s decision. The
Beijing Higher People’s Court reaffirmed that the franchisor substantially
breached the contract by ordering its employees to leave the franchisee’s store.
The court then recalculated the damages and affirmed the trial court’s decision.
Another recent case from the Beijing Higher People’s Court is the Appeal of the
Franchising Agreement Case of Anlai (Beijing) Vehicle Services Chain Co., Ltd.
v. Wangsong (hereinafter “Anlai v. Wangsong”). 116 In August 2011, the
franchisor, Anlai, entered into a franchising agreement with the franchisee,
Wangsong. The agreement held that the franchisee could use the franchisor’s
English trademark “Allead” and its associated symbol. The franchisee paid a
franchising fee to the franchisor. However, the franchisee was unaware that the
franchisor had already sold both the trademark and the symbol in March 2011.
The franchisee discovered that the franchisor did not own the trademark and, as a
result, did not set up a franchise and sued the franchisor. The trial court nullified
the franchising agreement and ordered the franchisor to return the franchise fee.
The franchisor appealed the trial court’s decision. It argued that the decision was
unjust because the franchisor had incurred administrative costs. The Beijing
Higher People’s Court cited Article 12 of the BFL law which states “the
franchiser and the franchisee shall stipulate in the franchise contract that the
franchisee may unilaterally rescind the contract within a certain term after the
franchise contract has been concluded.” 117 The court determined that the
franchisee was entitled to rescind the contract and, consequently, that the
franchisor should return the franchise fee. It affirmed the trial court’s decision
and stated that the franchisor had acted in bad faith.
The latest business franchise case from the Shanghai Higher People’s Court is the
Appeal of the Franchising Agreement Case of Limeng Group Ltd. v. Shanghai
Dimi Furniture Co., Ltd. (hereinafter “Limeng v. Dimi”).118 This case revolved
around whether the franchisee, Dimi, made a contractually binding promise to pay
a franchising fee to the franchisor, Limeng. The franchisor and franchisee
negotiated a franchising agreement wherein the franchisee would pay a franchise
fee in return for the exclusive right to use the franchisor’s trademark in the PRC.
The franchisee opened a store and began to sell goods under the franchisor’s
trademark. In the PRC, as opposed to many other countries such as the U.S., a
contract must be both signed as well as stamped with a company seal referred to
116
See Anlai (Beijing) Qiche Fuwu Liansuo Youxian Gongsi Yu Wangsong Texing Jingying
Hetong Jiufen Shangsuan (安莱（北京）汽车服务连锁有限公司与王松特许经营合同纠纷上
诉案) [Appeal of the Franchising Agreement Case of Anlai (Beijing) Vehicle Services Chain Co.,
Ltd. v. Wangsong], 2012 Gaomin Zhongzi 1030 (Beijing Mun. Higher People’s Ct. Apr. 4, 2012)
(Chinalawinfo).
117
118
See Limeng Jituan Youxian Gongdeng Yu Shanghai Dimi Jiaju Youxian Gongsi Texu Jingying
Hetong Jiufen Shangsuan (力盟集团有限公等与上海迪米家具有限公司特许经营合同纠纷上
诉案) [Appeal of the Franchising Agreement Case of Limeng Group Ltd. v. Shanghai Dimi
Furniture Co., Ltd.], 2009 Hu Gaomin San (Zhi) Zhongzi 148 (Shanghai Mun. Higher People’s
Ct. Aug. 22, 2011).
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as a “chop.” However, in this case, the only agreement that contained the
franchisee’s chop was the commitment letter. The franchisee never chopped the
accounting records or the repayment plan. Instead, the franchisee’s company
representative signed the documents. The franchisee believed that it did not have
to pay the franchisor because the repayment plan did not contain the franchisee’s
chop. The franchisor then sued the franchisee in order to recoup the franchise
fees.
The trial court determined that the franchisor was not entitled to the franchising
fee as described in the repayment plan. It denied relief to the franchisor and held
that the franchisor should pay the court fees. The franchisor appealed to the
Shanghai Higher People’s Court, and argued that the repayment plan was valid
even though it did not contain the franchisee’s chop. The franchisee never made a
court appearance and it failed to submit any evidence or briefs. The franchisee’s
absence weighed heavily on the court’s decision. The court reversed the trial
court’s decision and held that the franchisee had to pay the entire franchise fee.
3.
Prominent Lower Court Cases
The Franchising Agreement Case of Huanghaiyan v. Handsome Cosmetics Co.,
Ltd. (hereinafter “Huanghaiyan v. Handsome Cosmetics”) portrays the importance
of disclosure in business franchise agreements. 119 The franchisor, Handsome
Cosmetics, made false claims on its website such as having an “international
businessman relaxation club,” an office in Beijing, and a trademark affiliated with
Italy. The franchisee, Huanghaiyan, contacted the franchisor after seeing its
website. The parties entered into an agreement wherein the franchisor would
permit the franchisee to use its mark, and the franchisee would pay a franchise fee
to the franchisor. The franchisee discovered that the claims on the franchisor’s
website were false after paying the franchise fee. The franchisee also realized that
Handsome Cosmetics did not own any registered trademarks and that it was not
affiliated with any Italian marks. The court wrote that the franchisor intentionally
violated the BFL Law by failing to provide basic information before entering into
the franchise agreement. As a result, the court in Huanghaiyan v. Handsome
Cosmetics nullified the contract and ordered the franchisor to return the franchise
fee.
A lower court case that addresses an industry-based difficulty for foreign
franchisors is the Franchising Agreement Case of Beijing Yinqi Bayi Yinqi Health
and Beauty Co., Ltd. v. Hanmeiyan (hereinafter “Yinqi Bayi v. Hanmeiyan”).120
The PRC implements a categorization system for whether a foreign company may
119
See Huanghaiyan Su Beijing Hansen Meirong Youxian Gongsi Texu Jiameng Hetong Jiufenan
(黄海燕诉北京汉森美容有限公司特许加盟合同纠纷案 ) [Franchising Agreement Case of
Huanghaiyan v. Handsome Cosmetics Co., Ltd.], 2005 Chaomin Chuzi 24486 (Beijing Mun.
Chaoyang District People’s Ct. Nov. 16, 2005); see also Jones & Wolff, supra note 23, at 60–61.
120
See Beijing Yinqi Bayi Yinqi Jianmei Youxian Gongsi Yu Hanmeiyan Texu Jingying Hetong
Jiufen Shangsuan (北京印气巴谊印气健美有限公司与韩美艳特许经营合同纠纷上诉案)
[Franchising Agreement Case of Beijing Yinqi Bayi Yinqi Health and Beauty Co., Ltd. v.
Hanmeiyan], 2005 Erzhong Mingzhongzi 14880 (Beijing Second Interm. People’s Ct. Dec. 6,
2005).
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participate in a domestic industry. 121 These categories are 1) encouraged, 2)
permitted, 3) restricted, and 4) prohibited.122 The franchisor, Hanmeiyan, was a
wholly foreign-owned enterprise (hereinafter “WFOE”) incorporated by South
Korean investors. The investors registered the WFOE in the health sector.
Hanmeiyan and the franchisee, Yinqi Bayi, entered into a franchise agreement.
The franchisee later determined that it would be able to rescind the contract
because foreign companies could not invest in the health sector. The trial court
agreed with the franchisee, nullified the contract, and ordered the franchisor to
return the franchise fee. The appellate court affirmed the trial court’s decision.
III.
ANALYSIS
Part A of this section illustrates the strengths and weaknesses of the BFL Law.
Part B assesses specific measures and regulations as well as suggests
improvements. Part C analyzes potential effects of the Revisions to the
Information Disclosure Measures. Part D offers insights concerning the decisions
and opinions in the business franchise cases discussed above. Part E makes
several suggestions to improve the PRC’s business franchise system.
A.
Strengths and Weaknesses of the Regulation on the
Administration of Commercial Franchises
The BFL Law effectively provides a foundation for business franchising laws and
regulations in the PRC. It clearly explains the elements and required terms of a
business franchising agreement, and lists the information requirements for
archival filing. The BFL Law also plainly states the duties and responsibilities of
franchisors and franchisees. Another strength of the BFL Law is that it explicitly
confers powers to government administrations and AICs. It also does not conflict
with the Contract Law.
The BFL Law establishes a relatively effective framework for business
franchising laws and regulations. However, it could also be improved. As
mentioned before, Chinese legislation is often vague, and this tendency is
apparent throughout the BFL Law. For example, although the BFL Law states
that administrative agencies and AICs shall supervise and administer the
franchising industry, it does not allocate these powers to any specific agency or
AIC. It also does not indicate which other laws and regulations apply to business
franchising.
The definition of “business resource” may also be too broad. As mentioned
above, a business resource includes patents and business know-how. It seems that
the BFL Law allows local governments to loosely interpret “business resource.”
Finally, the vagueness in the BFL Law allows local governments to make
interpretations that may conflict with general court tendencies. For example, a
121
See Encouraged, Permitted, Restricted and Prohibited Industries, LEHMANBROWN,
http://www.lehmanbrown.biz/en/resources/class_view.asp?id=509 (last visited Feb. 27, 2013).
122
Id.
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local government could interpret the direct sales store requirement more broadly
than the majority of courts.
B.
Assessing and Improving Specific Measures and Regulations
The Archival Filing Measures are very helpful for determining the information
that a franchisor must submit to its local AIC. The differences between the
information requirements in the BFL Law and the Archival Filing Measures are
essentially the only impediment to understanding filing requirements. This
problem could be effectively resolved by incorporating the additions and
clarifications from the Archival Filing Measures into the BFL Law. Also,
although the Archival Filing Measures provide detailed instructions to franchisors
as well as list several deadlines for the AICs, they do not inform AICs how to
process archival information. It would be very helpful to local AICs if these
measures provided a general outline for processing and filing.
The Public Utilities Measures also promote the relationship between public utility
franchisors and local governments. The most useful portion of the Public Utilities
Measures is the additional contractual requirements. Although any complete
public utility business franchise agreement should include all of the terms in these
measures, they further help business franchisors and local governments create
effective agreements. For example, a business franchisor and the local
government could possibly forget to add a clause for product and service
standards or for the management of security.
However, the Public Utilities Measures fail to address several important issues
related to the franchising of public utilities. Firstly, these measures do not state
how a local government should conduct the bidding process. The measures
would be more effective if they informed local governments how to conduct the
process and which problems the local government must address. For example,
bidders have sometimes resorted to violence in order to stop other bidders from
participating. These measures should address this problem and urge local
governments to seek police assistance. Secondly, the measures seem to place an
arbitrary limit of thirty years for the maximum term of a public utility franchise
agreement. Instead, the measures could offer the opportunity to apply for an
extension beyond thirty years. The franchisor could apply for an extension one
year before the end of the thirty year term and, afterwards, the local AIC could
investigate and assess the franchising agreement. Thirdly, the Public Utilities
Measures state that a franchisor may not shut down without public approval.
However, the measures do not provide consequences for the violation of this
requirement. The measures should state the amount of damages and whether the
local government would issue an announcement against the franchisor.
The Tianjin and Shenzhen regulations on public utilities are primary examples of
proactive local government participation in business franchising. These measures
show local government interest in promoting regulated business franchises. Both
of these measures help local franchisors and local government agencies to
understand which issues are especially important to the local government. The
Shenzhen Public Utilities Regulation takes a further step by providing an
alternative to bids and auctions. The addition of recruitment to methods for the
local government to choose franchisors promotes local government control and
fosters the relationship between franchisors and the local government.
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C.
Potential Effects of the Revisions to the Information Disclosure
Measures
The Revised Information Disclosure Measures have a substantial effect on
franchisors’ potential liabilities and business practices. Business franchisors that
began franchising in the PRC before 2012 must assess how the Revised
Information Disclosure Measures affect their business practices.
Business franchisors must consider the addition of natural person shareholders to
entities that must disclose information. Depending on the extent that a local AIC
enforces these revisions, a local AIC could fine a franchisor for failing to provide
shareholder information even if the franchisor unintentionally did so because it
was following its normal business practice. As such, business franchisors should
include required shareholder information in order to avoid complications and
possible fines.
Business franchisors must also be aware that they must disclose all litigation and
arbitration from the past five years. This means that franchisors that submitted
litigation and arbitration information to local AICs should determine whether they
did not disclose any information because it concerned a matter worth less than
500,000 RMB. Franchisors should then inform the local AIC if they did not make
a disclosure because the failure to do so may result in a fine.
Similarly, since the revisions remove the 500,000 RMB cap for disclosures
regarding illegal operations, business franchisors must also determine whether
they should make any additional disclosures regarding illegal operations.
However, the Original Information Disclosure Measures also required a
franchisor to disclose illegal operations that are subject to criminal liabilities. It is
unlikely that this revision would produce liability for previous disclosures because
essentially all crimes that involve more than 500,000 RMB result in criminal
liability.
Although the Revised Information Disclosure Measures broaden the scope of
information that a franchisor must submit to the local AIC, they also provide one
reduction to information disclosures. Business franchisors will only have to
submit two years of bankruptcy information.
D.
Court Cases: Effects and Insights
The SPC Business Franchising Case provides useful insight on several aspects of
business franchising. Firstly, it shows that a PRC court is likely to hold that a
franchisor does not violate a non-compete agreement if it opens a store under the
same name before signing the agreement. However, the franchisor must disclose
all of the relevant information regarding stores under the same name. The SPC
Business Franchising Case demonstrates that the failure to disclose may result in a
fine and an announcement. Conversely, it also illustrates that the failure to
disclose might not produce additional liability to the franchisee. Finally, this case
shows that a franchisee must show damages and, if it is unable to provide
sufficient evidence of its good faith and of a material breach by the franchisor,
then a court is likely to deny relief.
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Jiafu Fuqiao v. Ren Guohai affirms that a PRC court may impose heavy damages
against a franchisor if it substantially breaches a franchising agreement. The
franchisee in this case had contributed to the dispute that resulted in the
franchisor’s breach. Nonetheless, the court returned the franchising fee and
awarded damages.123
Anlai v. Wangsong shows the importance of good faith and information
disclosure. The court nullified the contract and returned the franchise fee because
the franchisor acted in bad faith when it granted the rights to a trademark that it
did not possess. Limeng v. Dimi also teaches that an appellate court may reverse a
decision if the appellee fails to produce evidence and to attend court
proceedings.124
The franchisor in Huanghaiyan v. Handsome Cosmetics created a website with
outrageous claims. Although the franchisor clearly acted in bad faith, the
franchisee also should have vetted the franchisor. 125 Finally, Yinqi Bayi v.
Hanmeiyan reminds foreign franchisors that they may not be able to franchise in
an industry that is either restricted or prohibited from foreign investment.126
E.
General Suggestions to Improve the Business Franchise System
In addition to the specific suggestions mentioned above, the PRC might also
benefit from further developing its business franchise laws and regulations. The
Supreme People’s Court should review the Business Franchise Contract Opinion
and, after deliberating on the various issues that it resolves, promulgate its own
opinion. This would resolve any disparity between court decisions that result
from the limited jurisdictional reach of the Beijing Higher People’s Court.
The current business franchise measures only provide industry-based regulations
for public utilities and gas stations. Furthermore, only two local governments
have chosen to create their own legislation which, as discussed above, only
extends to public utility franchising. Both the national government and local
governments should determine whether it is in their best interest to create
additional business franchise regulations.
IV.
CONCLUSION
The BFL Law, measures, and regulations provide a framework for a relatively
comprehensive business franchising system. The most confusing aspect of
business franchising in the PRC is the vagueness of certain laws and regulations.
However, this is due to the PRC’s civil law system, and ambiguities will continue
to persist throughout Chinese laws and regulations. The suggestions above do not
seek to change how the PRC’s civil law system influences legislation and
123
See supra note 115.
124
See supra note 116.
125
See supra note 38.
126
See supra note 120.
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2013
regulations. Rather, they are meant to resolve some of the larger issues facing the
current business franchise system.
The differences between the PRC’s business franchise system and common law
systems should not deter business franchisors. The PRC provides generally
adequate guidelines to franchisors. It has also effectively distributed power
amongst government agencies. This allows business franchisors to understand
their responsibilities to specific agencies. PRC courts, especially the Beijing and
Shanghai intermediate and higher courts, also have adequate experience with
business franchise disputes.
Business franchisors should begin understanding the PRC’s business franchise
system before entering the PRC. Similarly, business franchisors would benefit
from establishing a relationship with an attorney that has business franchise law
experience and understands the additional needs of foreign franchisors. The laws
and regulations will continue to develop and improve as business franchising
becomes increasingly popular in the PRC.
153
JOURNAL OF
VOLUME 1, ISSUE 2
The Internationalization of Constitutional Law
Using Values to Build an African Jurisprudence and Develop a More
Inclusive Body of International Human Rights Law
LAUREN FIELDER*
ABSTRACT
The internationalization of constitutional law is a growing phenomenon in Africa and includes
the harmonization of domestic constitutional rights with international law standards. It also
involves the use of comparative law, whereby courts look to decisions of other foreign courts
for guidance on how to apply these human rights standards. The result is a streamlined body
of international human rights law that is strengthened by more voices at the table. With such a
broad rights scheme, it is inevitable that rights will occasionally collide. This chapter
examines one of these tensions: the right to culture and the right to gender equality. The
chapter examines why African constitutional courts need to consider international and
comparative law in their decisions and points to the value of horizontal borrowing between
African constitutional courts and vertical borrowing between African courts and regional
institutions. This is accomplished by an examination of several important African court cases
that attempt to balance these competing rights.
ARTICLE CONTENTS
I.
II.
III.
IV.
V.
INTRODUCTION .................................................................................................155
WHY COURTS MUST CONSIDER INTERNATIONAL AND COMPARATIVE LAW
............................................................................................................................156
A. A Constitutional Mandate .......................................................................156
B. The Treaty Overlay ..................................................................................158
WHY IT IS PROBLEMATIC FOR COURTS TO CONSIDER INTERNATIONAL AND
COMPARATIVE LAW .........................................................................................159
SOLUTION – DIALOGUE ON TWO LEVELS .......................................................160
A. Vertical--Court to Regional .....................................................................164
B. Horizontal—Court to Court....................................................................166
1. Botswana: Attorney-General of Botswana v Unity Dow .......................166
2. South Africa: Bhe v Magistrate .............................................................167
3. Uganda: Law Advocacy for Women in Uganda v Attorney General. ...168
4. Tanzania: Ephraim v Pastory................................................................169
5. Benin: Review of Constitutionality of Family Legislation ....................169
6. African Appellate Court Decisions........................................................170
CONCLUSION .....................................................................................................170
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2013
I.
CONSTITUTIONAL LAW & AFRICAN JURISPRUDENCE
155
INTRODUCTION1
The internationalization of constitutional law is a growing phenomenon in Africa. It
includes two parallel and complementary processes. First, and most importantly, it
harmonizes domestic constitutional rights with international law standards.
It
necessarily means that constitutional courts must consider a State’s international law
obligations. The second component of the internationalization of constitutional law is a
practical one, engaging in comparative law, whereby courts look to decisions of other
foreign courts for guidance on how to apply these human rights standards. The result is a
streamlined body of international human rights law that is strengthened by more voices at
the table. International human rights law expands to account for the African experience.
States outside of Africa will benefit from novel solutions coming from African courts, as
well. The result will be an African jurisprudence that protects international human rights
in a way that reflects African values.
The wave of constitutional reforms from the 1990s created comprehensive rights schemes
in some African States.2 The extensive rights guaranteed include many different types of
rights, including third generation rights such as the right to culture.3 Many of these
constitutions also specifically list gender as a prohibited ground of discrimination.4 With
such a broad rights scheme, it is inevitable that rights will occasionally collide. The right
to culture and the right to gender equality provide just one example of rights that have the
potential to conflict. This conflict manifests itself in many forms, such as female
circumcision, early marriage, bride price, inheritance laws favoring men, and polygamy.
This chapter will show how the use of international and comparative law by African
constitutional courts is at least unavoidable and at best helpful in resolving cases where
these constitutional rights conflict. However, the use of comparative and international
law can exacerbate legitimacy problems that courts face and impede recognition of
African traditions and values. I will use the conflict between culture and gender equality
as a case study for the larger issue.
In doing so, I will examine why African
constitutional courts need to consider international and comparative law in their
decisions.

Lauren Fielder is an Assistant Professor of Law and Assistant Director of the Transnational Legal
Studies Program at the University of Luzern Faculty of Law in Switzerland. Thanks go to the
University of Luzern for supporting this project, and Charles Manga Fombad and Christina
Murray for their advice. Parts of case analysis in this chapter were discussed in L Fielder,
‘Customary International Law and the Internationalization of African Constitutional Law: A Way
Forward in the Protection of Human Rights?’ in Zukunft und Recht 243 (A Mannhart and S
Buergi, eds., Zurich, Schulthess, 2012), L Fielder, ‘African Constitutional Courts and Transitional
Justice: A Tool for Reconciling Gender and Customary Law?’, in Women and Transitional
Justice: The Experience of Women as Participants (LYarwood, ed., Oxford, Routledge 2012), and
L Fielder ‘African Courts and African Values: Harmonizing International Human Rights and
Customary Law’ in Transnational Legal Processes and Cultural Difference (K Topidi and L
Fielder, eds., Farnham: Ashgate, 2012).
2
CM Fombad ‘Constitutional Reforms and Constitutionalism in Africa: Reflections on Some Current
Challenges and Future Prospects’ (2011) 59 Buff. L. Rev. 1007, 1090.
3
As above.
4
See for example, W Amien ‘Overcoming the Conflict Between the Right to Freedom of Religion and
Women’s Right to Equality: A South African Case Study of Muslim Marriages’ (2006) 28 Human
Rights Quarterly 729, 747.
2013
II.
WHY COURTS MUST CONSIDER INTERNATIONAL AND COMPARATIVE LAW
It is difficult for courts to consider disputes involving human rights without turning to
international or comparative law.5 However, there has not been a coherent pattern in its
application by African constitutional courts,6 and for this to occur it is necessary for
judges to be aware of the existence of these bodies of law.7 According to the former
Chief Justice of Zimbabwe, Anthony Gubbay, ‘a judicial decision has greater legitimacy
and commands greater respect if it accords with international norms that have been
accepted by many jurisdictions’.8 Of course, the response of African States to their treaty
obligations in terms of domestic application is conditioned by the manner in which
domestic constitutions structure the application of international law in their own courts.
The use of international law may be required or encouraged by a State’s constitution or
its obligations under international law. Where there is no explicit or implicitly
authorization for a court to use international human rights law, the question is more
controversial with legal scholars offering divergent opinions.9
A.
A Constitutional Mandate
Some African Constitutions directly legitimize the use of international and/or
comparative law in their decisions, while others clearly demand it. For example, section
39 (1) of the Constitution of South Africa provides that:
‘When interpreting the Bill of Rights, a court, tribunal or forum –
a) must promote the values that underlie an open and democratic society
based on human dignity, equality and freedom;
b) must consider international law; and
c) may consider foreign law.’10
5
Fombad, above note 2, 1092, stating that ‘a court can hardly deal with a human rights dispute
today without being invited by counsel to consider one foreign authority or another’.
3
See for example, as above, 1092, stating that ‘the reliance on these foreign authorities has been
rather eclectic with scant or at most superficial references to the techniques of comparative law’.
7
As above.
8
CM Fombad ‘Internationalization of Constitutional Law and Constitutionalism in Africa’
forthcoming in Am J. Comp. L., at 24, quoting Foreword, 1 Commonwealth Human Rights Digest,
1 (1996).
9
As above, 8.
10
South African Constitution, s 39(1) (1996) [emphasis added].
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2013
It is common to see the South African Constitutional Court cite decisions from the United
States, Canada, the U.K., Ireland, Australia, New Zealand, India, Sri Lanka and Germany
in addition to the jurisprudence of the European Court of Human Rights.11
Angola, Cape Verde, Malawi also expressly require their courts to consider international
and comparative law.12 For example, articles 26 and 27 of the Angolan Constitution
specify that the rights established under the constitution are a floor, not a ceiling, and as
such ‘shall not exclude others contained in the laws and applicable rules of international
law’.13 Kenya’s 2010 Constitution provides that ‘the general rules of international law
shall form part of the law of Kenya’ and that ‘any treaty or convention ratified by Kenya
shall form part of the law of Kenya under this Constitution’.14 The Constitution of the
Seychelles ‘not only instructs courts to interpret the Chapter on Fundamental Rights
consistently with the country’s international human rights obligations, but also allows
judicial notice of international instruments, reports, and views adopted by UN and
regional human rights treaty bodies, and the decisions of foreign, regional, and
11
T Roux ‘The Dignity of Comparative Constitutional Law’ (2008) Acta Juridica 185, 192.
12
NJ Udombana ‘Interpreting Rights Globally: Courts and Constitutional Rights in Emerging
Democracies’ (2005) 5 Afr. Hum. Rts. L. J. 47, 59. Angola and Cape Verde’s Constitutions
provide that constitutional and legal norms related to fundamental rights shall be interpreted and
incorporated in the light of international instruments. Cape Verde’s Constitution states ‘freedoms
established in the Constitution, by law and in general or conventional international law, received
in the internal legal order, shall be guaranteed’. The Constitution of the Republic of Cape Verde,
1992, art 27(2). Malawi’s Constitution directs the judiciary to ‘have regard to current norms of
public international law and comparative law’. The Constitution of the Republic of Malawi, 1994,
s 11(2) (c).
13
Art 26(1) of Angolan Constitution, 1992. The two most important provisions concerning
international law are:
‘Article 26 (Scope of fundamental rights)
1. The fundamental rights established in this Constitution shall not exclude others contained in the
laws and applicable rules of international law.
2. Constitutional and legal precepts relating to fundamental rights must be interpreted and
incorporated in accordance with the Universal Declaration of the Rights of Man, the African
Charter on the Rights of Man and Peoples and international treaties on the subject ratified by the
Republic of Angola.
3. In any consideration by the Angolan courts of disputes concerning fundamental rights, the
international instruments referred to in the previous point shall be applied, even if not invoked by
the parties concerned.
Article 27 (Rules governing rights, freedoms and guarantees)
The principles set out in this chapter shall apply to the rights, freedoms and guarantees and to
fundamental rights of a similar nature that are established in the Constitution or are enshrined in
law or international conventions.’
Articles 13 and 14 also make express provisions for international law. See Fombad, as above note
4, 7.
14
Constitution of Kenya, Arts 2(5)-(6).
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2013
international courts’.15 A few other courts in Africa are beginning to participate in an
international rights dialogue.16 For example, in Mwellie v. Ministry of Works, the
Namibian High Court considered cases from India, the United States, Canada, England,
Malaysia, South Africa and the European Court of Human Rights.17
What is surprising, however, is the fact that African Courts rarely borrow from each other
with the exception of receiving law from the South African Constitutional Court. In
addition, the South African Constitutional Court has done little to embrace African
jurisprudence,18 rarely citing cases from other African courts or regional judicial
tribunals.19 Nor is it common for African courts to cite African regional tribunals.20 This
is despite an important decision citing the need for bringing traditional African
jurisprudence to matters before the court.21 While it seems that limited access to
decisions would be a barrier to borrowing, availability of these decisions is becoming less
and less of an issue, since decisions of many courts are available on the internet.22
B.
The Treaty Overlay
In many cases, States have signed and ratified international agreements that oblige them
to respect certain principles that may influence cases concerning gender equality and the
right to custom. Courts deciding human rights issues must also consider customary
international law as a binding source of law.
This is important, because customary
15
F Viljoen International Human Rights Law in Africa (Oxford: Oxford University Press, 2007)
541, note 66, quoting Constitution of Seychelles 1993, art 48.
16
Udombana, above note 12, 62.
17
As above, 62, citing Mwellie v. Ministry of Works [1995] 4 LRC 184. See also, Fombad, as
above note 4, 27.
18
DM Davis ‘Constitutional Borrowing: The Influence of Legal Culture and Local History in the
Reconstitution of Comparative Influence: The South African Experience’ (2003) 1 Int’l J. Const.
L. 181, 194.
19
Fombad, above note 8, 28. A notable exception to this is the South African Constitutional
Court’s reference to Namibia and Zimbabwe in the Juvenile corporal punishment case, S v
Williams and Others [1995] 3 SA 632. The cases referred to included Ex Parte Attorney-General,
Namibia: In re Corporal Punishment by Organs of the State [1991] (3) SA 76 (NmSC) and S v
Ncube; S v Tshuma and S v Ndhlovu [1988] (f2) SA 702 (ZSC).
20
Fombad, above note 8, 28.
21
Davis, above note 18, 194 citing S v Makwanyane & Another 1995 (6) BCLR 665 (CC).
22
Fombad, above note 8, 28. Free access to decisions from the High Courts of Angola, Botswana,
Lesotho, Kenya, Madagascar, Malawi, Mauritius, Mozambique, Namibia, Seychelles, South
Africa, Swaziland, Tanzania, Uganda, Zambia and Zimbabwe is available through the Southern
African Legal Information Institute (SAFLII), available at http://www.saflii.org (accessed 10 April
2012). The same organization provides access to decisions of COMESA, the East African Court
of Appeal, the East African Court of Justice and the SADC Tribunal.
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international law establishes principles of international law that have achieved the status
of customary international law even where a state refuses to sign or ratify a convention.23
III.
WHY IT IS PROBLEMATIC FOR COURTS TO CONSIDER INTERNATIONAL AND
COMPARATIVE LAW
Applying international and/or comparative law may cause legitimacy problems for
African courts. International human rights law comes across as imperialistic, since
Africa had very little say in its creation. The Eurocentric conception of human rights law
misses the African situation, including its rich culture that has many rights protections.
There is a widespread negative perception of human rights in Africa, and a fear that
human rights will drown out the voices of Africa.24 The civilizing mission approach of
colonization makes it hard for some contemporary Africans to accept human rights.25
Human rights have an implication for African law, as well. African laws are denied
validity of their cultural-specific legal norms on the basis of human rights.26 According
to one commentator, ‘African courts have demonstrated a particular unwillingness to
privilege international understandings of human rights over local customary practices,
due in part to domestic political restrictions, the potential appearance of disrespect for
local traditions and “African Values” and the fear of perceived legal impositions from the
west’.27
Legitimacy for the courts is critical. However, African courts have suffered greatly from
problems of legitimacy, causing far-reaching consequences.28 In part, legitimacy reflects
public opinion, yet it goes further. This is because courts belong to the people.
Therefore, there should be an interrelationship between public opinion and constitutional
jurisprudence. This interrelationship works both ways. Public opinion can push the court
to make decisions (push effect) and court decisions may also influence public opinion
(pull effect). An example of the push effect would be Benin’s constitutional decision to
ban polygamy.29 An example of the pull effect is South Africa’s Makwanyane case,
23
Fombad, above note 8, 9. This approach was received as a part of English law during the period
of colonization. As above, quoting I Brownlie Principles of Public International Law, 6th ed.,
(Oxford: Oxford University Press, 2003) 41. See generally L Fielder ‘Customary International
Law and the Internationalization of African Constitutional Law: One Way Forward in the
Protection of Human Rights?’ in A Mannhart and S Buergi (eds.) Recht und Der Weg in die
Zukunft (Zurich: Schulthess-Verlag, 2012).
24
W Menski Comparative Law in a Global Context: The Legal Systems of Africa and Asia
(Cambridge University Press, 2006) 380.
25
As above, 25, discussing that colonization is a barrier to the acceptance of human rights.
26
As above, 381.
27
V Knobelsdorf ‘Zimbabwe’s Magaya Decision Revisited: Women’s Rights and Land
Succession in the International Context’ (2006) 15 Colum. J. Gender & L. 749, 790.
28
Fombad, above note 2, 1094, listing the examples of the recent situations in the Ivory Coast,
Sudan, the Democratic Republic of the Congo, Somalia, Kenya and Zimbabwe. Conversely,
constitutionalism stabilizes governments. As above, 1108.
29
Review of Constitutionality of Family Legislation (2004) AHRLR 127 (BeCC 2002). See
section IV B (5), below, for discussion of this case.
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banning the death penalty.30 The legitimacy of the South African court’s decision was
bolstered by the discussion of Ubuntu, an African value.31 The justices addressed the
issue of public opinion in the decision and agreed that ‘the issue before the Court was one
of constitutionality and not one of desirability’.32
IV.
SOLUTION – DIALOGUE ON TWO LEVELS
How can this tension be resolved? First and foremost, there must be an inclusive African
perspective on international human rights. Constitutionalism should be seen ‘as both the
site and symbol of popular legitimacy’.33 This constitutional legitimacy must comport
with the indigenous values and institutions of a society. 34 ‘Legitimacy and sustainability
of African constitutionalism somehow need to tap the consciousness of the African
peoples, including recollections of relevant pre-colonial conceptions of historical
experiences.’35 These historical experiences can lead to ‘a relationship between
recollections of the past and ways of imagining the future that can, in turn, provide a
blueprint of action in the present’.36
Human rights in their western understanding cannot be seen as an inflexible truth.
Rather, they should be seen as a work in progress. It is imperative that human rights be
rethought and reconstructed. This new construction can and must include third world
voices.37 In addition, there should be a multiplicity of third world voices, as each culture
has an important contribution towards the human rights corpus.38 Globalization cannot
erase the reality of a multitude of historical traditions.39 ‘A new theory of
internationalism and human rights, one that responds to diverse cultures, must confront
the inequities of the international order.’40 Southern voices have an equal claim to
universal recognition.41 This is the only kind of rights regime that can ever achieve true
legitimacy in Africa.42 ‘Ideals imbedded in the past could be woven into conceptions of
30
S v Makwanyane & Another 1995 (6) BCLR 665 (CC).
31
See section IV, below, for a discussion of African values.
32
J LeRoux ‘The Impact of the Death Penalty on Criminality,’ available at
<www.isrcl.org/Papers/LeRoux.pdf> (accessed 12 March 2012). Note that rights for gays and
lesbians is another area where the Constitutional Court at the direction of the Constitution in South
Africa has acted ahead of public opinion, with the idea that public opinion will follow.
33
AA An-Na’im African Constitutionalism and the Role of Islam (University of Pennsylvania
Press, 2006) 24.
34
As above at 99.
35
As above at 27 and 32.
36
As above at 28.
37
MA McKinley ‘Cultural Culprits’ (2009) 24 Berkeley J. Gender L. & Just. 91, 152.
38
MW Mutua Human Rights: A Political and Cultural Critique (Philadelphia: University of
Pennsylvania Press, 2008) 73-74.
39
Menski, above note 24, 3-4, citing Pierre Legrand ‘Against a European Civil Code’ (1997) 60
Modern L. Rev. 44, 61.
40
Mutua, above note 38, 7.
41
Menski, above note 24, 26.
42
Mutua, above note 35, 72.
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man, society, and the state in a way that can make the human rights corpus more relevant
to Africa today.’43 This is in line with the postmodern idea that truth is culturally relative
and should celebrate a plurality of perspectives.44
How can African courts be a part of this process? Courts can protect human rights while
shaping them into a form that is consistent with African values. Courts should take note
of the values when deciding their cases, and the international community should consider
the positive aspects of these values when creating international law.
African communities have many common values.45 This is expressed in cultural values
that are ‘unique to and similar among peoples in Africa’.46 For example, the concept of
human dignity is one of the most important concepts for African people.47 Dignity is
also an important feature of African law and is a cornerstone of many African
constitutional protections.48 The concept is recognized in Article 5 of the African Charter
on Human and Peoples’ Rights.49 Other rights, such as freedom from exploitation and
degradation, particularly slavery, slave trade, torture, cruel, inhuman or degrading
punishment and treatment, are seen to stem from this right to dignity.50
Communal values are also very important to Africans. This is in part because many
Africans live in rural areas.51 This community orientation provides security and value to
people.52 There is a strong idea that human dignity does not necessarily mean the
vindication of individual rights.53 Linked to this is the idea that what happens to one
43
As above at 93.
44
Menski, above note 24, 11.
45
L Fielder ‘African Courts and African Values: Harmonizing International Human Rights and
Customary Law’ forthcoming in K Topidi and L Fielder (eds) Transnational Legal Processes and
Cultural Difference (Farnham: Ashgate, 2012). See also W Idowu ‘Law, Morality and the African
Cultural Heritage: The Jurisprudential Significance of the Ogboni Institution’ (2005) 14(2)
Nordic J of African Studies 175, 180-181, stating that ‘[I]n the comparative sense, a whole lot of
similarities are clearly and interestingly exhibited among… different societies’.
46
J Lassiter ‘African Culture and Personality: Bad Social Science, Effective Social Activism, or a
Call to Reinvent Ethnology?’ (1999) 3(2) African Studies Quarterly 1, 1.
47
As above.
48
Fielder, above note 45.
49
African Charter on Human and Peoples’ Rights (June 27, 1981), art 5, O.A.U. Doc.
CAB/LEG/67/3/Rev.5, reprinted in 21 I.L.M. 58 (1982), providing that ‘[e]very individual shall
have the right to the respect of the dignity inherent in a human being and to the recognition of his
legal status’. See also Fielder, as above.
50
As above.
51
JAM Cobbah ‘African Values and the Human Rights Debate: An African Perspective’ (1987)
9(3) Human Rights Quarterly 309, 327.
52
MA Kanu ‘The Indispensability of the Basic Social Values in African Traditions: A
Philosophical Appraisal’ 154, available at http://www.ajol.info/index.php/og/article/viewFile/
57930/46296 (accessed 10 April 2012).
53
Cobbah, above note 51, 322.
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happens to the entire community.54 The importance of the family is strongly tied to this
communal spirit. Family cohesion is important to the functioning of the entire
community. The concept of family is different from the Western idea of the centrality of
the nuclear family. African values place a greater emphasis on the extended family. 55
Therefore, marriage is seen to be an important link between two extended families in the
community.56
African values have a particular focus on duty and service.57 Rights and duties are
intertwined. This is present in articles 27-29 of the African Charter of Human and
Peoples’ Rights.58 The concept of duties is composed of the principles of respect,
restraint, responsibility and reciprocity.59 Respect means respect for the community,
family and elders.60 Elders have a very important role to play in African culture as they
are seen to be wise. This wisdom entitles them to positions of leadership in the
community.61 Elders are thus seen to be the keepers of custom and tradition.62 Restraint
is a duty that emphasizes putting individual needs second to those of the community.63
Responsibility requires that people take care of one another, within the family and the
community at large, and provides a system of security for all members of society.64
Ubuntu is a jurisprudential concept that means ‘humanity towards others,’65 and
emphasizes the value of the life of others and human dignity, respect,66 and
reconciliation.67 It recognizes the interconnectedness of people to each other and their
community.68 Ubuntu captures many of the African values mentioned above, and has
54
Benson O. Igboin ‘Colonialism and African Cultural Values’ (2011) 3(6) African Journal of
History and Culture 96, 99.
55
As above, 100. For example, in some African languages, there exist no words for extended
family members, such as aunts, uncles and cousins. Kanu, as above note 48, 156.
56
Kanu, above note 52, 156.
57
Idowu, above note 5, 181.
58
African Charter of Human and Peoples’ Rights (June 27, 1981), arts 27-29, O.A.U. Doc.
CAB/LEG/67/3/Rev.5, reprinted in 21 I.L.M. 58 (1982).
59
60
Kanu, above note 52, 156.
61
As above.
62
As above.
63
64
As above, 322. See also Kanu, above note 52, 154.
65
Clever Mapaure ‘Reinvigorating African Values for SADC: The Relevance of Traditional
African Philosophy of Law in a Globalising World of Competing Perspectives’ (2011) 1 SADC L
J 149, 160.
66
As above.
67
As above.
68
As above.
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been used in South African jurisprudence,69 most famously in the case prohibiting the
death penalty, S v Makwanyane.70
There is great potential for ‘dialogical processes to promote rights’.71 Courts can enhance
democratic legitimacy by the use of greater comparison within African domestic and
regional courts. Courts should look to broader sources for guidance in decisions that turn
on a balance between rights. There has been a recent call for more local values and
traditions to be considered in the implementation of international human rights.72 ‘Any
reforms of the customary law system that threaten to dilute it or compromise some of its
distinctive features must be treated with great caution, (yet) changes. . . of a fundamental
nature are not only unavoidable but necessary.’73
This dialogue will increase legitimacy of constitutional courts. Greater reliance on
dialogue and comparison within Africa will engender feelings of inclusion, which is
essential in Africa, where ‘experience has shown that ethnic conflicts in Africa are often
the products of regimes that promote feelings of exclusion within certain groups’.74 A
genuine dialogue ‘permits a more accurate diagnosis of the problem at hand’.75 The
synthesis of an African jurisprudence is part of the internationalization of constitutional
law in that it uses the international standard to shape constitutional law, and does it in a
way that creates a regional standard.
69
TW Bennett ‘Ubuntu: An African Equity’ (2011) 14(4) PER/PELJ 30, 30. The South African
Interim Constitution of 1993 was the first official document to incorporate the term. As above, 32.
It was included in the epilogue to the Constitution, which provided a basis for amnesty and the
Truth and Reconciliation Committee. Drucilla Cornell and Nyoko Muvangua ‘Law in the uBuntu
of South Africa’ available at isthisseattaken.co.za (last accessed 10 March 2012) 15.
Cornell and Muvangua point out that the direct reference to Ubuntu was left out of the permanent
South African Constitution, except for a ‘shadow,’ where Paragraph 22 of Schedule 6 preserves
the Epilogue to the Interim Constitution.
70
S v Makwanyane & Another 1995 (6) BCLR 665 (CC), defining Ubutu as: ‘[U]buntu translates
as humaneness. In its most fundamental sense, it translates as personhood and morality.
Metaphorically, it expresses itself in umuntu ngumuntu ngabantu, describing the significance of
group solidarity on survival issues so central to the survival of communities. While it envelops the
key values of group solidarity, compassion, respect, human dignity, conformity to basic norms and
collective unity, in its fundamental sense it denotes humanity and morality. Its spirit emphasises
respect for human dignity, marking a shift from confrontation to conciliation.’
S v Makwanyane & Another 1995 (6) BCLR 665 (CC) at para 308.
71
J Bond ‘Gender, Discourse, and Customary Law in Africa’ (2010) 83 S. Cal. L. Rev 509, 512..
72
F Banda ‘Global Standards: Local Values’ (2010) 17 Int’l J. L. Pol’y & Fam. 1, 5.
73
CM Fombad ‘Customary Courts and Traditional Justice in Botswana: Present Challenges and
Future Perspectives’ (2004) 15 Stellenbosch L. Rev. 166, 167.
74
75
Azizah Y. Al-Hibri ‘Is Western Patriarchal Feminism Good for Third World/Minority Women?’
in S. Okin (ed) Is Multiculturalism Bad for Women? (Princeton: Princeton University Press, 1999)
41, 42.
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A.
Vertical--Court to Regional
Greater dialogue between constitutional courts and the African regional framework is a
vital part of the internationalization of African constitutional law. To begin with, the
importance of regional systems in the overall structure of international law is predicted to
increase steadily in years to come.76 As the importance of these judicial bodies grows, so
should the value of this dialogue. Additionally, dialogue between constitutional courts
and the regional system has an important legitimacy component. Reference to regional
human rights mechanisms in domestic decisions is an important way to combat the view
that human rights are a product of a western, hegemonic project.77 Regional human
rights law is a source that may be viewed with less skepticism than international law.78
Participation in regional systems gives States the ability to shape human rights norms in a
way that reflects local customs, traditions, and values. Participation in the process of law
creation gives rise to greater ownership of the results, and greater legitimacy and
compliance.
The African Commission and the African Court are also sources for articulating African
human rights norms.79 The African Commission itself is in a dialogue with other judicial
bodies in its interpretation of the African Charter.80 The Commission has a mandate to:
‘draw inspiration from international law on human and peoples’ rights, the
Charter of the United Nations, the … [constitutive act of the African Union],
the Universal Declaration of Human Rights, other instruments adopted by the
United Nations and African countries in the field of human and peoples’
rights, as well as from the provisions of various instruments adopted within
the specialized agencies of the United Nations of which the parties to the
present Charter are members’.81
In addition, in its 19th session, the Commission adopted a resolution urging African
judges to issue judgments that embody the rights set forth in the African Charter and the
jurisprudence of the Commission.82 However, it has been the case that in many instances
where it would have been logical to rely on the Charter for interpretive purposes, this was
76
A Slaughter ‘Problems Will Be Global- and Solutions Will Be, Too’ (Sept/Oct 2001) Foreign
Policy, 89.
77
JE Bond ‘Constitutional Exclusion and Gender in Commonwealth Africa’ (2008) 31 Fordham
Int’l L. J. 289, 310.
78
As above.
79
‘Legal Grounds: Reproductive and Sexual Rights in African Commonwealth Courts’ (2010) II
Center
for
Reproductive
Rights
14,
available
at
<http://reproductiverights.org/sites/crr.civicactions.net/files/documents/pub_legalgrounds_vol2_2.
10.pdf> (hereinafter Legal Grounds) (accessed 10 April 2012).
80
81
As above, 63, quoting art 60, African Charter.
82
Viljoen, above note 11, 565 quoting Resolution on the Role of Lawyers and Judges in
Integration of the Charter and Enhancement of the Commission’s Work in National and Subregional Systems, Ninth Annual Activity Report, Annex VII.
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not done.83 One example is the corporal punishment cases decided by Namibia, South
Africa and Zimbabwe.84 In these cases, the European system was extensively referenced,
while the African system was not.85
The importance of sub-regional judicial bodies in this dialogue should be considered as
well. The Economic Community of West African States (ECOWAS) Court of Justice is
one example of a judicial body that is becoming more important in the field of human
rights. The ECOWAS Court of Justice hears cases when national courts cannot or will
not, and has recently expanded its jurisdiction to include human rights cases.86 These
opinions are binding and must be implemented by member states.87 One recent example
with important implications for women’s rights is Hadijatou v. The Republic of Niger.88
This case involved the custom Wahiya, a practice where a young girl is sold to a man for
use as an unofficial wife.89 In this case, the plaintiff, Ms Karoau, had been sold as a
twelve year old girl to a man 34 years her senior.90 She became his fifth wife.91 One
issue before the Court was whether this custom of Wahiya amounted to slavery. The
Court held that Ms Karoau had, in fact, been a slave, in violation of numerous
international and regional laws.92 In its holding, the Court held Niger responsible to Ms
Karoau for this violation of her right to be free from slavery and ordered Niger to pay
83
Viljoen, above note 15, 565. South Africa surprisingly neglects to refer to the African Charter
in its decisions, especially since the court refers so extensively to other Constitutions and
international instruments. ‘The limited degree to which South African judges have relied upon the
African Charter … remains disappointing.’ As above, 558.
84
As above, 565. The South African Constitutional Court uses the African Charter as a
confirmation of existing constitutional provisions.
85
As above, 565. S v Williams and Others [1995] 3 SA 632. See also Fombad, above note 15.
The cases referred to included Ex Parte Attorney-General, Namibia: In re Corporal Punishment
by Organs of the State [1991] (3) SA 76 (NmSC) and S v Ncube; S v Tshuma and S v Ndhlovu
[1988] (f2) SA 702 (ZSC). Note that the South African Constitutional Court referred to the earlier
cases from Namibia (Ex Parte Attorney-General, Namibia: In re Corporal Punishment by Organs
of the State [1991] (3) SA 76 (NmSC)) and Zimbabwe (S v Ncube; S v Tshuma and S v Ndhlovu
[1988] (f2) SA 702 (ZSC)).
86
Legal Grounds, above note 79, 14. This is the result of a 2005 amendment, giving the
ECOWAS court jurisdiction to hear and decide human rights violations in member states. See
Helen Duffy ‘Hadijatou Mani Koroua v. Niger’ (2008) Human Rts. L. Rev. 1, 6, citing art 9(4) of
Supplementary Protocol A/SP.1/01/05.
87
See Duffy, above note 86, 19.
88
Judgment No. ECW/CCJ/JUD/06/08 of 27 October 2008, ECOWAS Court of Justice, available
at <www.interights.org/documentbank/index.htm?id=533> (accessed 10 April 2012). This
judgment is widely thought of as historic. See Duffy, above note 82, 19.
89
Legal Grounds, above note 79, 77.
90
As above. The fact that Ms. Karoau was the fifth wife was central to the case, in that local
custom permitted men to have only four wives. Therefore, the court held, there had been no
discrimination by the government because the husband did not comply with customary or civil
marriage regulations. As above, 79.
91
As above, 79.
92
As above, 39. The Court explained that States have an absolute obligation to abolish slavery.
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reparations to her.93 This decision has important gender implications. It, and others that
will surely follow, should not be overlooked as potential sources of persuasive authority
by African constitutional courts.
B.
Horizontal—Court to Court
Independence constitutions contain similar language.94 Lawmakers did not ‘reinvent the
wheel’ with each new constitution,95 and so courts do not need to reinvent the wheel in
their decisions. In fact, the South African model is one that incorporates the best
elements of Western constitutionalism, while expanding the reach of the Western rights
scheme to include social, economic and cultural rights.96 Kenya and Angola’s recent
constitutions have taken this model and expanded upon it.97 Groundbreaking decisions
worthy of emulation have followed South Africa’s new Constitution.98 Unfortunately, as
discussed above, constitutional developments in Africa outside South Africa have
received almost no attention.99 As there are now more constitutions that make great
strides in protecting rights while taking the unique historical, cultural and social context
of Africa into consideration, African constitutional courts have a great potential resource
in each other.100 Court decisions should be blueprints for other courts within Africa to
use. The following selection of cases below, while not an exhaustive list, are a
representative sample of cases that African courts have heard and decided on the issue of
gender equality. Individually and collectively they contribute to African jurisprudence.
Individually, they deal with different pieces of the equality conundrum. This is
especially true when the case directly references African values.101 Collectively, they
establish equality as an African value, even when they get to equality as a right in
different ways.
1.
Botswana: Attorney-General of Botswana v Unity
Dow102
This case was a challenge to sections 4 and 5 of Botswana’s Citizenship Act of 1984,
which denied citizenship to children born of a marriage between a Botswana citizen
93
As above, stating that ‘although Ms. Koraou’s slavery was perpetrated by an individual, Niger’s
administrative and judicial bodies failed to reverse the applicant’s situation when she brought a
complaint before them, thereby making the government responsible’.
94
Bond, above note 77, 304.
95
As above.
96
97
The Constitution of Kenya, 2010; Constitution of the Republic Of Angola, Aug. 25, 1992.
98
99
HK Prempeh ‘Marbury in Africa: Judicial Review and the Challenge of Constitutionalism in
Contemporary Africa’ (2005-2006) 80 Tul. L. Rev. 1239, 1246.
100
101
While this is not the case in many of the cases below, as the body of cases grows, it is hoped
that this will increase. Bhe is a case that directly addresses African values in the context of gender
equality.
102
Attorney-General v Dow (2001) AHRLR 99 (BwCA 1992); see also (1992 BLR 119).
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mother and an alien father.103 The court examined whether the Act was in violation of
the Botswana Constitution’s Article 3 anti-discrimination guarantees.104 In analyzing this
issue, the Court referred to international and comparative law. The Court found that the
‘Citizenship Act’s provisions can adversely affect the daily lives of women who marry
non-citizens,’ and held that sections 4 and 5 of the act were discriminatory in their effects
on women and must be struck down.105
2.
South Africa: Bhe v Magistrate106
Bhe v. Magistrate is actually a set of companion cases that concerned African customary
inheritance laws that favored men. In its analysis of the issues presented in these cases,
the South African Constitutional Court discussed the positive aspects of customary law as
a dynamic system of law that is constantly evolving to meet the changing circumstances
of the community.107 In doing so, the Court emphasized its continuing commitment to
the preservation and advancement of customary law in South Africa.108 The Court
referred to Ubuntu, the dominant value in African traditional culture, which calls for
communality, consensus building and the inter-dependence of members of the
community. 109 The Court explained that the obligation to care for family members is
‘vital and fundamental’ in the African social system.110 However, the Court emphasized
that despite culture’s important role in society, customary law must always be consistent
with the Constitution.111 The Court then explained that African women and descendants
who are not first-born males are a vulnerable group and that the application of the
customary law system of primogeniture violates their rights to equality and dignity. 112
This, reasoned the Court, is because primogeniture excludes women from inheritance,
and is based on a system of patriarchy that kept women in a position of subservience and
subordination.113
In deciding the case, the Court referred to international and comparative law, stating that
the South African Constitution is not alone in the emphasis it places on the right to
equality.
103
As above, 30. Children born to unmarried mothers and alien fathers received Botswana
citizenship, however.
104
As above, 30. See also, Constitution of Botswana, Sept. 30, 1966. Constitutional guarantees of
liberty, protection of the law, immunity from expulsion from Botswana, and protection from being
subjection to degrading treatment were also raised.
105
As above, 41-42.
106
Bhe and Others v Khayelitsha Magistrate and Others (CCT 49/03) [2004] ZACC 17; 2005 (1)
SA 580 (CC); 2005 (1) BCLR 1 (CC) (15 October 2004).
107
C Rautenbach, et al. ‘Is Primogeniture Extinct Like the Dodo, or is There Any Prospect of it
Rising From the Ashes? Comments on the Evolution of Customary Succession Laws in South
Africa’ (2006) 22 S. Afr. J. on Hum. Rts. 99.
108
Bond, above note 77, 338 and Bhe, above note 102, 24-25, para 41.
109
As above, 28, para 45.
110
Rautenbach, above note 107, 99.
111
Bhe, above note 106, 24-25, para 41.
112
As above, 56, paras 91-92.
113
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‘The right is cherished in the constitutions and the jurisprudence of many
open and democratic societies. A number of international instruments, to
which South Africa is a party, also underscore the right to protect the rights of
women, and to abolish all laws that discriminate against them as well as to
eliminate any racial discrimination in our society.’114
In addition, the Court referred to provisions of the Convention on the Rights of the Child,
the ICCPR, and the African Charter on the Rights and Welfare of the Child in
confirmation of the ‘best interests of the child principle’ in the South African
Constitution.115 After carefully balancing the rights to equality and custom,116 the Court
held that the primogeniture rule applied in customary law is inconsistent with the South
African Constitution’s guarantee of equality.117
3.
Uganda: Law Advocacy for Women in Uganda v
Attorney General.118
Test case litigation in Law Advocacy for Women in Uganda v Attorney General119 was a
merger of two petitions with gender equality implications. The first dealt with section
154 of the Ugandan Penal Code, which punished married men and women differently for
the crime of adultery.120 The second petition was a challenge to the Ugandan Succession
Act, which contained inheritance laws that disfavored women.121 The Court found both
laws null and void because they were inconsistent with equality principles in the
Constitution.122 This case prompted at least 19 other African States to enact legislation
making citizenship laws more equal.123
114
As above, 31.
115
Viljoen, above note 15, 559, citing Bhe.
116
Bhe, above note 106, 45, para 70.
117
118
Constitutional Petitions Nos. 13/05 & 05/06 [2007] UGCC 1 (5 April 2007) Uganda,
Constitutional Court.
119
Constitutional Petitions Nos. 13/05 & 05/06 [2007] UGCC 1 (5 April 2007) Uganda,
Constitutional Court.
120
Legal Grounds, above note 79, 27. Sex by a married man with a person other than his wife was
not a crime, while sex by a married woman with a person other than her husband was a crime. As
above.
121
As above at 27-28, citing ss 2(n)(i)-(ii), 15, 16, 27, 43, and 44.
122
Legal Grounds, above note 79, 28. The court relied on arts 21, 24, 31, 33 and 36 of the
Constitution.
123
As above.
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4.
169
Tanzania: Ephraim v Pastory124
Holaria Pastory inherited clan land from her father under a valid will.125 When she was
elderly and had no one to care for her, she sold the land to a person outside of the clan. 126
Ms Pastory’s relative sued in a local court to have the sale set aside under the relevant
customary law, which forbade women from selling clan land that they had inherited.127
This customary law permitted male members of the clan to sell clan land with the
condition that clan members can redeem the land.128 The case was appealed and the
Tanzanian High Court examined the Haya customary law in light of the 1977
Constitution’s Bill of Rights, which in Article 13(4) prohibits discrimination against
women.129 The Court also took notice of the African Charter’s Article 18(3) prohibition
against gender discrimination and the ICCPR’s article 26 equality provision.130 The
Court found the law to be invalid under the Bill of Rights and modified and qualified the
portion of the inheritance act in question to apply equally to men and women.131 In
explaining its holding, the Court made a charming reference to literature:
‘To the male chauvinists they should remember what that English novelist
John Gay (1685-1732) had said in The Beggar's Opera:
Fill every glass, for wine inspires us. And fires us, with courage, love and joy,
women and wine should life employ. Is there aught else on earth desirous? If
the heart of a man is depressed with cares, the mist is dispelled when a
woman appears.’132
5.
Benin: Review
Legislation133
of
Constitutionality
of
Family
This case was a constitutional challenge to Benin’s Code of Individuals and Family,
which permitted polygamy.134 Article 143 of the law allowed a man to marry more than
one woman but did not allow a woman to marry more than one man.135 The article stated
‘[b]oth forms of marriage monogamic or polygamic are recognised. However, the future
124
Ephraim v. Pastory, (2001) AHRLR 236 (TzHC 1990), previously reported as [1990] L.R.C.
757 (Tanzania High Ct.).
125
As above, para 1.
126
As above, para 1.
127
As above, paras 1 & 2.
128
As above, para 3.
129
As above, para 10.
130
As above, para 10.
131
As above, para 42.
132
As above, para 44.
133
Review of Constitutionality of Family Legislation (2004) AHRLR 127 (BeCC 2002).
134
As above, paras 1, 4.
135
As above, para 4.
2013
couple must choose one option before the marriage is celebrated.’136 Ms H Rosine
Vieyra-Soglo, a member of the national assembly, claimed that the law was
discriminatory against women in violation of article 26 of Benin’s Constitution.137 The
Court found this provision of the family code to be unconstitutional, making polygamous
marriage unconstitutional in Benin.138 However, the Court made provisions for
polygamous marriages contracted prior to the code, so that there would not be unjust
transitory effects on women.139
6.
African Appellate Court Decisions
Appellate Court decisions, are another valuable source of African jurisprudence, as
Appeal courts can often be the highest court in a State. For example, in Mary Rono v.
Jane Rono & another,140 the Kenyan Court of Appeal decided that a customary law that
awarded greater shares of an estate to males than females was invalid. In making this
decision, the Court relied on non-discrimination principles in the Constitution.141 In
addition, the Court used international law to inform its decision, stating that Kenya had
ratified The ICCPR, the ICESCR, CEDAW and the African Charter.142 The Court
pointed out that these treaties, most particularly CEDAW, prohibited discrimination on
the basis of sex and explained that Kenya ‘was moving in tandem with emerging global
culture, particularly on gender issues’.143 However, the Court stated that state practice has
shifted to allow the domestic courts to apply international law even if it has not been
domesticated as long as it does not conflict with domestic laws.144
V.
CONCLUSION
Efforts at individual human rights protection that fail to consider the unique framework
of laws in Africa, and the correspondingly important role that culture plays in the way
Africans organize their societies, are doomed to fail. It is the very difficult task of
African constitutional courts to enforce human rights while protecting Africa’s unique
and valuable culture. As constitutional law becomes increasingly internationalized,
136
As above, para 6.
137
As above, paras 3-4. Ms. Vieyra-Soglo also challenged parts of the law concerning division of
property.
138
As above, para10.
139
As above, para 19.
140
Civil Appeal 66 of 2002 (decided 2005), Kenya, Court of Appeal.
141
Legal Grounds, above note 79, 36.
142
As above.
143
As above.
144
As above, 37. The Court relied on a Zambian decision, Longwe v. Intercontinental Hotels, to
bolster its argument. In this case, the Zambian Court explained that ratification of a treaty without
reservations indicates its willingness to be bound, and if a case comes before the court, in the
absence of local legislation, the Court will take judicial notice of the treaty. Legal Grounds, above
note 75, 37. This case was a challenge by a woman to International Hotel’s policy to bar entry to
women unaccompanied by men. The Zambian High Court found this was gender discrimination
in violation of Zambia’s Constitution and CEDAW. Longwe v. Intercontinental Hotels [1993] 3
L.R.C. 221 (Zambia High Ct.). See also Bond, above note 5, 530-531.
170
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courts would greatly benefit from recognizing the value in dialogue between African
courts and regional institutions to create a body of law that is distinctly African. Africa is
one of the regions in the world today where judicial review is growing.145 Marbury v.
Madison’s legacy is enjoying a ‘quiet resurgence’.146 This should fuel a comparative
discourse between African courts, which will promote human rights in a sustainable,
appropriate way that will have far reaching positive, stabilizing effect. The impact of
this expanded African jurisprudence will have effects that reach far beyond Africa,
however. A cohesive African jurisprudence will be harder to ignore in the formal and
informal international law processes. States all over the world can look to Africa as an
example of a progressive jurisprudence147 that includes a wider variety of rights than
traditionally conceived by Western states.
This will shape a truly inclusive,
representative internationalization of constitutional law, in which African courts are
giving and receiving members of the global community of courts.
145
Prempeh, above note 99, 1240.
146
As above.
147
M Kende ‘The Fifth Anniversary of the South African Constitutional Court: A Defense of
Judicial Pragmatism’ (2002) 26 Vt. L. Rev. 753, 767.
171
JOURNAL OF
VOLUME 1, ISSUE 2
Recent Developments in the Legal Debate on Religiously
Motivated Circumcision in Germany
JOHANNES SAAL*
ABSTRACT
In May 2012, the Cologne State Court's conviction on a charge of bodily injury of a
Muslim physician who conducted a religiously motivated circumcision caused
uncertainty as to the legal status of a hallowed religious rite for Germany's Jewish and
Muslim minorities. The court’s decision presented a novelty not just in German legal
history but in international comparative law as well. As far as it is known, there is no
country which explicitly bans religiously motivated circumcision. In any case, the legal
situation in Germany was never quite clear. Thus, the German government proposed the
draft “Law on the Scope of Custody with respect to the Circumcision of a Male Child”. It
was adopted by the German parliament in December 2012, legalising religiously
motivated circumcision in the context of parental custody.
These events constituted the climax of an on-going discussion amongst legal scholars as
to whether non-medically indicated circumcisions of male infants constitute a criminal
offense of bodily injury . The dispute occurred in the context of a complex relationship of
partly conflicting fundamental rights belonging to parents and children. While proponents
– such as the Cologne judge – of a ban on non-medically indicated circumcision stressed
the superiority of the child's right of physical integrity, self-determination, and freedom
of religion, the opponents – such as the German government – of a prohibition argued by
emphasising the parent's right of education and religion.
This article opts for the latter position. Besides presenting the legal argumentation, it is
further important to emphasise political and social factors as well. Considering how
charged the legal and public debate was with emotions, irrationality and even bias, the
Cologne judgment triggered a broader debate in not only in Germany but also in the
whole of Europe as to the relationship between state and religion in the context of
secularisation, cultural identity, the place of growing cultural and religious minorities in a
pluralised and heterogeneous society, and its legal consequences. Therefore, granting
minority rights and tolerance for other cultural and religious concepts and customs proves
a necessity for a democratic society shaped by individualisation and pluralisation.
ARTICLE CONTENTS
I.
II.
INTRODUCTION ......................................................................................................173
LEGAL CASES ON CIRCUMCISION IN GERMANY .................................................177
A. The Erlangen Case ...................................................................................177
B. The Frankfurt Case ..................................................................................177
C. The Cologne Case .....................................................................................178
III. DRAFT LAWS ON CIRCUMCISION .........................................................................181
IV. CONFLICTING FUNDAMENTAL RIGHTS................................................................183
A. Bodily Injury.............................................................................................183
B. Right to Physical Integrity .......................................................................185
C. Right to Educational Freedom ................................................................187
D. Right to Religious Freedom .....................................................................188
V. CONCLUSION: TOWARDS A MULTICULTURAL APPROACH.................................193
172
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I.
DEVELOPMENTS CIRCUMCISION IN GERMANY
INTRODUCTION
Evidence shows that Jewish life since the 4th century within Roman settlements has been
the foundation of the present German cities of Cologne, Trier, Mainz, Worms and
Speyer. Thus, one can assume that the practice of circumcision was performed a long
time before the creation of any German royal dynasty, not to mention any nation-state
under the rule of modern law. During the centuries before the first Jewish people settled
in these territories, Greek and Roman rulers such as Antiochus Epiphanes in the 2nd
century BCE or Hadrian in the 2nd century CE, outlawed circumcision.2 Simultaneously,
an emerging theological debate on circumcision occurred within Christianity. Because
the salvation of Jesus would universally include the whole of humankind, Paul the
Apostle did not consider circumcision necessary as a mark of distinction, so he rejected
this significant and historical Jewish rite.3
Even though the troubled chronicle of German Jews, especially in modern times, was
characterized by their minority status, persecutions, pejorative allegations and mass
murders, recent German legal history has never witnessed a ban on religiously motivated
circumcision4. On the contrary, Holm Putzke noted that the modern legislation of
Germany does not explicitly allow circumcision without medical indication.5 However,
during the middle of the 19th century, circumcision was not only tolerated, it also became
regulated in the context of general medicine and guaranteed on the basis of the right to
freedom of religion by the German states.6 Even the National Socialist rulers in the Third
Reich did not claim a prohibition,7 a circumstance which indeed was motivated by the
need to have an identifiable body marker to separate Jews from Non-Jews. In the
* Johannes Saal was born in Berlin. After finishing high school, he volunteered for one year in Tel
Aviv, Israel. Afterwards, he completed his Bachelor's degree in Religious Studies and Jewish
Studies at University of Potsdam in Germany, including two Erasmus semesters in Istanbul at
Fatih University's Faculty of Sociology. Mr. Saal wrote his Bachelor’s thesis on the Kabbalah
Center of Philip Berg as an example of the transformation of Kabbalah in the context of postmodern religiosity. Being awarded a scholarship by the German Academic Exchange Service,
since fall 2012, he went on to obtain the joint Master’s Degree in “Religion, Economics and
Politics” at University of Lucerne, Zurich and Basel. His major field of study focuses on sociology
of religion, religion in contemporary society, politics and religion in the Middle East, Europe and
the Balkans, Islamist movements, religiously motivated terrorism and radicalisation, new religious
movements and economics of religion and terrorism.
2
Abusch, Ra'anan, Circumcision and Castration under Roman Law in the Early Empire, in: Mark,
Judith Wyner (ed.): The Covenant of Circumcision. New Perspectives on an Ancient Rite,
Brandeis University Press, Lebanon (USA) 2003, p. 75-86, here p. 76
3
Ibid., p. 79
4
Entwurf eines Gesetzes über den Umfang der Personensorge bei einer Beschneidung des
männlichen Kindes,
Deutscher Bundestag, Drucksache 17/11295, 10.10.2012, p. 12
http://www.bmj.de/SharedDocs/Downloads/DE/pdfs/Reg%20Gesetz_ueber_den_Umfang_der_Per
sonensorge_bei_einer_Beschneidung_des_maennlichen_Kindes.html?nn=1356288 (viewed 04.12.
2012)
5
Cf. Putzke, Holm: Die strafrechtliche Relevanz der Beschneidung von Knaben, in: Putzke, Holm,
Hardtung, Bernhard, Hörnle, Tatjana, Merkel, Reinhard/Scheinfeld, Jörg, Schlehofer, Horst, Seier,
Jürgen (ed.): Strafrecht zwischen System und Telos. Festschrift für Rolf Dietrich Herzberg, Mohr
Siebeck, Tübingen 2008, p. 669-709, here p. 674
6
Deutscher Bundestag, Drucksache 17/11295, p. 12
7
Ibid., p. 13
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2013
aftermath of the Holocaust, the German-Jewish population diminished enormously, but
through increased immigration of Muslims from Turkey, the Middle East, North Africa
and former Yugoslavia, religiously motivated circumcision became a common practice
by a growing minority.
In the recent years, a dispute among legal scholars arose as to whether non-medically
indicated circumcision of boys constitutes the criminal offence of bodily injury. A
judgement by the Landgericht Köln (Cologne State Court, LG Köln) from the 7th May
2012 (LG Köln, 151 Ns 169/11) convicted a Muslim physician, who conducted the
religious circumcision of a boy that resulted in medical complications, of bodily injury.8
Apparently, the Cologne judge put the circumcision ban supporters' arguments into
judicial action. Protests by Jewish and Muslim representatives followed, assessing the
criminalization of religious circumcision of boys as a violation of their right to freedom
of religion.
Dieter Graumann, president of the Zentralrat der Juden in Deutschland (Central Council
of Jews in Germany), called the judgement an “outrageous and insensitive act”. Ali
Demir, president of the Religionsgemeinschaft des Islam (Religious Association of Islam)
in Baden-Wuerttenberg, considered the decision by the Cologne court as “hostile to the
integration and as discriminating for the persons affected”.9 The incident came to the
attention of the media, with national and even international coverage in news outlets such
as the New York Times, BBC News, Al-Jazeera, Haaretz, Wall Street Journal and Time
Magazine. Julian Krüper explained the impact of that a small, relatively lower court
decision, arising from a nearly unknown legal debate, can have on a broader level in the
following way:
“It is an explosive mixture which emerges if religion is confronted with
sanctions, if a cultural minority tradition is put in its place of a legal
majority convention, if therefore suddenly something is prohibited which
always seemed to be allowed. Such sanctions namely not just interfere
consistently with the unconditionally guaranteed freedom of religion, but
also challenge traditions which in the case of the world religions can be
dated back to ancient times. This mixture ensures popular interest by the
public as it is charged with social, psychological or (sexual-)
physiological aspects of sexuality. If the situation is moreover socio-
8
Landgericht Köln, 151 Ns 169/11, 07.05.2012, http://www.justiz.nrw.de/nrwe/lgs/koeln/lg_koeln/
j2012/151_Ns_169_11_Urteil_20120507.html (viewed 04.12.2012)
9
Cf. Interview with Michael Bongardt, „Beschneidung ist keine Verstümmelung“, Cicero,
28.06.2012, http://www.cicero.de/salon/toleranz-gehoert-nicht-zu-deutschland-beschneidungsurte
il/49859 (viewed 06.12.2012)
174
2013
politically significant or even historically charged, than there is no
shortage of media interest.”10
Considering the emotional and, partly, biased nature of the debate – even physicians and
jurists occasionally equate male circumcision with female genital mutilation or applied
terms such as “barbaric”, “traumatic”, “torture” or “sexual violence”11 –, Krüper had a
point. The public dialogue involved more than just the cut of the foreskin. The Cologne
judgement triggered an on-going debate in Germany, as well as in the whole of Europe
about the relationship between state and religion in the context of secularisation, the place
of growing cultural and religious minorities in a pluralized and heterogeneous society,
and the overall legal consequences. With the insight that the controversy would require a
political solution, the parliamentary fractions of the parties Christlich-Demokratische
Union (Christian Democratic Union, CDU), Christlich-Soziale Union (Christian Social
Union, CSU), Sozialdemokratische Partei Deutschland (Social Democratic Party of
Germany, SPD) and Freie Demokratische Partei (Free Democratic Party, FDP) moved in
July 2012 to draft a law explicitly legalizing non-medically indicated circumcision,
keeping Jewish and Muslim tradition alive in Germany, and finally ending the
threatening legal uncertainty hanging over doctors, Jews and Muslims.12 The majority of
the Bundestag accepted the motion. In October 2012, the Bundesministerium für Justiz
(Federal Ministry of Justice, BMJ), by order of the German government, drafted and
submitted the Gesetz über den Umfang der Personensorge bei einer Beschneidung des
männlichen Kindes (Law on the Scope of Custody regarding the Circumcision of a Male
Child).13 Sixty-six parliamentarians of the parties SPD, Bündnis 90/Die Grünen
(Alliance 90/The Greens) and Die Linke (The Left) contributed on their behalf the Gesetz
über den Umfang der Personensorge und die Rechte des männlichen Kindes bei einer
Beschneidung (Law on the Scope of Custody and Rights of Male Children related to
Circumcision), intending to frame the legalization of circumcision subject to more
restrictions.14 The laws were debated by the parliament for the first time at the end of
November 2012.15 On the 12th December, 2012, 434 parliamentarians of the Bundestag
10
„Es ist eine explosive Mischung, die entsteht, wenn Religion auf Sanktion stößt, wenn eine
kulturelle Minderheiten-tradition in die Schranken rechtlicher Mehrheitskonvention gewiesen
wird, wenn also plötzlich verboten ist, was stets erlaubt schien. Solche Sanktionen greifen nämlich
regelmäßig nicht allein in die vorbehaltlos gewährleistete Religionsfreiheit ein, sondern brechen
auch mit Traditionen, die im Falle der Weltreligionen bis ins Altertum zurückreichen können.
Diese Mischung kann sich des Interesses einer breiten Öffentlichkeit gewiss sein, wird sie
aufgeladen durch soziale, psychologische oder (sexual-)physiologische Aspekte von
Geschlechtlichkeit. Ist der Sachverhalt zudem noch gesellschaftspolitisch bedeutsam oder sogar
historisch belastet, ist kein (mediales) Halten mehr.“ Krüper, Julian: Entscheidungsanmerkung
zum Urteil des LG Köln am 7.5.2012 – 151 Ns 169/11, in: Zeitschrift für das juristische Studium
4/2012, p. 547-552, here p. 547
11
Cf. Latasch, Leo: Brit Mila – Medizin und Religion, Presentation at the Plenary Session of the
German Ethics Council on the Topic of Religious Circumcision, Transcript, 23.08.2012, p. 4,
www.ethikrat.org/dateien/pdf/plenarsitzung-23-08-2012-simultanmitschrift.pdf (viewed 04.12.
2012)
12
Deutscher Bundestag, Drucksache 17/10331, 19.07.2012, http://dip21.bundestag.de/dip21/btd/
17/103/1710331.pdf (viewed 05.12.2012)
13
Deutscher Bundestag, Drucksache 17/11295
14
Entwurf eines Gesetzes über den Umfang der Personensorge und die Rechte des männlichen
Kindes bei einer Beschneidung, Deutscher Bundestag, Drucksache 17/11430, 08.11.2012,
http://dipbt. bundestag.de/dip21/btd/17/114/1711430.pdf (viewed 05.12.2012)
15
Cf. „Bundestag einig über Gesetzentwurf zur Beschneidung“, Frankfurter Allgemeine Zeitung,
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2013
voted for and 100 against the governmental draft law, while the alternative draft law was
rejected by 462 to 91 votes.16
Even though the public debate centred almost entirely on religiously motivated
circumcision, the titles of both draft laws indicated the plurality of motives of
circumcision. In addition to its function as medical treatment (i.e. against narrowing of
the preputial orifice, balanitis or balanoposthitis), Judaism, Islam, but Coptic Christians
in Egypt and Orthodox Christians in Ethiopia and Eritrea also practice circumcision as a
religious ceremony and rite. Such custom, about whose origin little is known although
evidence of its practice can be found in Ancient Egypt around 2300 BCE, still carries
cultural and traditional significance in some parts of the world, for example among plenty
of tribes and ethnicities in Sub-Sahara Africa, South East Asia, Oceania and Latin
America17. As a rite of initiation and ceremony of maturity, circumcision additionally
grants the young male social desirability in his community.
The World Health Organization estimated that globally 33% of the male population
above 15 years are circumcised; Muslims (mainly in Asia, the Middle East and NorthAfrica) account for 69% of all circumcised males, Jews for 0,8% and non-Jewish and
non-Muslim male Americans for 13%.18 In the latter case, the high prevalence of
circumcision amongst male Americans for medical prevention or aesthetic reasons,
highlights a gradual secularisation of circumcision in the context of medicine: “The USAmerican medical discourse secularises the practice of circumcision by emphasizing the
(preventive-) medical advantages of circumcision, separating it thus from its religious
context.”19 Also the WHO – at least in Africa – recommends circumcision as a preventive
measure against the risk of infection by AIDS and HIV.20 Equally, many physicians
believe that circumcision improves hygiene and lowers the risk of contracting other
sexually transmitted diseases or developing penile cancer. In Europe, those medically
prophylactic considerations seem to be far less persuasive. While just 6% of the British
population is circumcised21 (most likely due to its sizeable Muslim minority) there is no
publicly available data on percentage of males that are circumcised in Germany. By
assuming that all Muslims (between 3.8 and 4.3 million)22 and Jews (a bit more than
22.11.2012, http://www.faz.net/aktuell/politik/inland/beschneidungen-bundestag-einig-ueber-gese
tzentwurf-zu-beschneidungen-11968819. html (viewed 05.12.2012)
16
Deutscher Bundestag, Bundestag entscheidet über Gesetz zur Beschneidung, http://www.bundes
tag.de/dokumente/textarchiv/2012/41964402_kw50_sp_beschneidung/index.html (viewed 13.12.
2012)
17
World Health Organization: Male Circumcision. Global trends and determinants of prevelance,
safety and acceptability, 2007, p. 4, http://www.unaids.org/en/media/unaids/contentassets/
dataimport/pub/report/2007/jc1360_male_circumcision_en.pdf (viewed 05.12.2012)
18
Ibid., p. 7
19
„Der US-amerikanische medizinische Diskurs säkularisiert die Praxis der Beschneidung, in dem
[sic] er die (präventiv-)medizinischen Vorteile der Beschneidung betont und sie dadurch aus ihrem
religiösen Kontext löst.“ Fateh-Moghadam, Bijan: Religiöse Rechtfertigung? Die Beschneidung
von Knaben zwischen Strafrecht, Religionsfreiheit und elterlichem Sorgerecht, in:
Rechtswissenschaften 2/2010, p. 115-142, here p. 118
20
WHO (2007) p. 22
21
Ibid., p. 8
22
Bundesministerium des Innern, Islam in Deutschland, www.bmi.bund.de/DE/Themen/
Gesellschaft-Verfassung/Staat-Religion/Islam/islam_node.html (viewed 05.12.2012)
176
2013
100,000)23 living in Germany practice circumcision, not including the unknown number
of people who are circumcised for social, traditional, medical, medically preventive or
aesthetic motives, it can be estimated that more than 2,2 million people (5,4% of the male
population) are circumcised because of religious motives. The actual number may
actually be far higher, according to a study at the Universitätsklinikum Frankfurt/Main
(University Hospital Frankfurt/Main) conducted by Jochen Schneider in the framework
of his dissertation on the legal aspects of non-medically indicated circumcision.24 If one
were to take into account all of the other individuals that may have had the procedure
performed for the sake of health, conscience, or religion, it is clear that regulation of
circumcision, with regard to legalization or criminalization of non-medically indicated
circumcision of boys, would affect a considerable percentage of people living in
Germany.
II.
LEGAL CASES ON CIRCUMCISION IN GERMANY
The case at the LG Köln was not the first German case that dealt with the question of
non-medically indicated, mainly religiously-motivated circumcision of male infants. It
nevertheless presents a novelty within modern German jurisprudence.
A.
The Erlangen Case
In 2002, the Amtsgericht Erlangen (Local Court Erlangen, AG Erlangen, 4 F 1092/01)
convicted a father of bodily injury for performing a circumcision on his 3 year old son
who lived with his foster parents at the time.25 On the basis of §1666 Bürgerliches
Gesetzbuch (German Civil Code, BGB) (judicial measures in case of a threat to a child's
well-being), the court deprived the parents of their right to undertake a religiously
motivated operative procedure. The criminal offence of bodily injury would be justified
by the violation of the physical integrity of the child, the risks of the operation and the
lack of social adequacy.
B.
The Frankfurt Case
Another significant case in 2007 was the one at the Oberlandesgericht Frankfurt (Higher
Regional Court Frankfurt, OLG Frankfurt, 4 W 12/07) where a father who arranged the
circumcision of his 12 year old son, without the knowledge of the non-Muslim mother,
was convicted of battery.26 The mother applied in front of the Landesgericht Hanau
(State Court Hanau, LG Hanau, 1 O 822/06) for legal aid for a lawsuit requesting an
injury award on behalf of her son.27 The judge declined, reasoning that circumcision, as
a part of a “good tradition”, would not be against the law. Likewise, the boy's ability to
23
Bundesministerium des Innern, Jüdische Gemeinschaft in Deutschland, http://www.bmi.bund.
de/DE/Themen/Gesellschaft-Verfassung/Staat-Religion/Juedische-Gemeinschaft/juedische-geme
inschaft_ node.html (viewed 05.12.2012)
24
Schneider, Jochen: Die männliche Beschneidung (Zirkumzision) Minderjähriger als
verfassungs- und sozialrechtliches Problem, Dissertation, Universität Frankfurt a.M. 2007, p. 3
25
Cf. Putzke, Holm: Juristische Positionen zur religiösen Beschneidung, in: Neue Juristische
Wochenschrift 22/2008, p. 1568-1570, here p. 1568
26
Cf. Ibid., p. 1569f.
27
Cf. Ibid.
177
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consent had to be assumed. The mother's appeal was granted and the case was then
forwarded to the OLG Frankfurt. In the circumstances of the case, circumcision
happened without the agreement of a person with custody rights. The judge therefore
classified the case as a severe violation of the boy's general personal rights. Further, the
boy's ability to consent was not recognized. Here, the court also referred to § 5 S. 2
Gesetz über die religiöse Kindererziehung (Law on the Religious Education of Children,
RKEG) which places restrictions on religious education for children above the age of 12
without their consent, in any other religion than the one they had been raised in.
C.
The Cologne Case
While both cases referenced above concerned fathers that did not have custody of the
children, the Cologne judgment dealt with the case of circumcision where the parents,
with primary custody of the child, consented to the operation, and dealt with the criminal
liability of the person performing the operation. In November 2010, the Muslim parents
in question decided to circumcise their 4-year-old son. The circumcision took place
without medical complications by a licensed doctor making a house call in the same
evening. However, due to severe haemorrhaging, the boy was hospitalized two days later
at the Universitätklinikum Köln (University Hospital Cologne) where doctors contacted
the police.28 The case was firstly arraigned to the Amtsgericht Köln (Local Court
Cologne, AG Köln, 528 Ds 30/11) in September 2011.29 During the course of the trial, an
expert witness testified that the defendant's work was professionally immaculate and did
not constitute medical malpractice. In the judgement, the court did state that nonmedically indicated circumcision was legitimate and justified it through the acquiescence
of the parents and their belief that they were acting for the benefit of their son according
to §1627 BGB. As a result, the affected doctor was discharged.
The prosecution appealed the judgement successfully, so that the case was brought in
front of the LG Köln (LG Köln, 151 NS 169/11). The doctor again stood accused of
bodily injury on basis of § 223 (1) and § 224 (1) N. 2 Strafgesetzbuch (Criminal Code,
StGB). The court adjudged that the implemented circumcision met the criminal offence
in § 223 (1) StGB, the physical abuse or health damage of another person, but was not
consistent with § 224 (1) N. 2 StGB, the grievous bodily harm of another person through
a weapon or another dangerous tool, because a scalpel would not present a dangerous tool
if used by a physician according to medical regulations.
However, the court did not see a justification for the parents' and the physician's action
by social adequacy (§ 17 StGB), which stipulates that an unlawful deed does not
constitute a criminal offence if it is socially ordinary and inconspicuous, generally
accepted and historically common. In addition, the court substantiated its finding by the
observation that the parents’ right to educate their children religiously did not take
priority over the child's fundamental rights of physical integrity and self-determination of
Art. 2 S. 1 and 2 Grundgesetz (Basic Law, GG), so that circumcision would be found to
contradict the child's well-being. Additionally, the circumcision could neither be justified
by the child's acceptance, considering that a 4-year-old child is not capable of giving
28
Connolly, Kate: Circumcision Ruling Condemned by Germany's Muslim and Jewish Leaders,
The Guardian, 27.06.2012, www.guardian.co.uk/world/2012/Jun/27/circumcision-ruling-germanymuslim-jewish (viewed 06.12.2012)
29
Amtsgericht Köln, 528 Ds 30/11, 21.09.2011, www.justiz.nrw.de/nrwe/ag-koeln/j2011/
528_Ds_30_11_Urteil_20110921.html (viewed 06.12.2012)
178
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179
informed consent, nor by the parents’ agreement invoking their right of education
according to § 1627 S. 1 BGB when exercised within reason to serve for the child's wellbeing. The court also referred to the child's right to a non-violent education in § 1631 S. 2
BGB where it is stipulated that the child's education should not encompass physical
punishment, mental damage or degrading treatment. The child's rights combined with the
fact that circumcision modifies the child's body permanently and irreparably and runs
contrary to the child's interests to freely choose his/her religious affiliation, restrict the
parents' fundamental right of religious freedom in Art. 4 S. 1 and 2 GG. In conclusion,
the court noted in its judgement that the defendant acted within an inevitable mistake of
law and therefore without culpability.
It has been argued that the defendant thought his action to be legal, although he did not
research his potential liability in an admittedly ambiguous legal situation. Some legal
scholars like Krüper criticized the court's procedure when handing out the verdict:
“Just by using the «emergency exit» of § 17 S. 1 StGB, on the inevitable
mistake of law, the court «saved» the physician from prosecution. The
court adds the judicially crucial item – culpability for the circumcision
of male boys – but solves the particular case in favour of the defendant,
who was unfortunately prejudiced by the vague legal situation.”30
Moreover, Werner Beulke and Annika Dießner stated that by declaring a legally valid
judgement, the court would have taken the physician's opportunity “to let proof the
verdict constitutionally by way of appeal, and possibly after exhausting the judicial
review by way of constitutional complaint”31.
The Cologne court's judgement was only exception in modern German jurisprudence, but
was also quite unique in international comparative law. As far as it is known, there is no
state worldwide which prohibits (religiously-motivated) circumcision,32 but some subject
the procedure to legal regulation. Sweden, for instance, is so far the only country that has
passed a specific law (“Law on the Circumcision of Boys”) containing legal rules and
restrictions, such as establishing the child’s ability to consent, adequate pain relief and
performance by a physician or person accredited by the Ministry of Health if the child is
under two months old.33 Under § 12 Children's Act of 2005, a circumcision performed on
male teenagers over the age of 16, without their consent, is unlawful in South Africa.
Generally, the law makes an exception in cases of religiously motivated circumcision
30
„Nur über den «Notausgang» des §17 S. 1 StGB, also den unvermeidlichen Verbotsirrtum,
«rettete» das Gericht den Arzt vor Strafverfolgung. Das Gericht setzt also den juristisch
entscheidenden Punkt – Strafbarkeit der Knabenbeschneidung –, löst den Einzelfall aber
zugunsten des Angeklagten, für den sich die unklare Rechtslage entschuldigend auswirkte.“
Krüper, p. 548
31
„[...] das Urteil im Wege der Revision und ggf. nach Ausschöpfung des Rechtsweges, im Wege
der Urteilsverfassungs-beschwerde verfassungsrechtlich überprüfen zu lassen.“ Beulke, Werner,
Dießner, Annika: „(...) ein kleiner Schnitt für einen Menschen, aber ein großes Thema für die
Menschheit“. Warum das Urteil des LG Köln zur religiös motivierten Beschneidung von Knaben
nicht überzeugt, in: Zeitschrift für internationale Strafrechtsdogmatik 7/2012, p. 338-347, here p.
340
32
33
„Sweden restricts circumcision“, BBC
hi/europe/1572483. stm (viewed 07.12.2012)
News,
01.10.2001,
http://news.bbc.co.uk/2/
2013
although the boy has a right to refuse.34 Since 2007, Australian state hospitals do not
conduct “cosmetic” circumcisions anymore.35 Motivated by the Cologne ruling,
Tasmania is heading for a ban of circumcision unless it is performed for religious or
traditional reasons.36 Last year, an attempt to ban all non-medically indicated
circumcision in San Francisco failed when it was stricken from the ballot.37 After two
Jewish boys died of herpes infection caused by metzitzah b'peh, a Hasidic rite whereby
the mohel, the Jewish circumciser, spits wine on the wound, the City of New York
demanded parents sign a consent form informing them about the risks.38 All these cases
restrict non-medically indicated circumcision by regulations to some degree but do not
affect circumcision for religious reasons in general. Relevant legal decisions by superior
courts in countries like Finland, France and Italy have led to a legalisation of
circumcision where parents give their approval.39
Although the judgement of the LG Köln was not legally binding on other German courts
it created legal uncertainty amongst physicians as well as Jewish and Muslim
circumcisers. The president of the Bundesärztekammer (German Medical Council), Frank
Ulrich Montgomery, warned physicians against conducting circumcisions without
medical reason until the legal situation is made clearer.40 This also led several hospitals in
Germany, including the Jewish hospital in Berlin41, to suspend religious circumcision of
infant boys. The unclear situation even had an international impact as some hospitals
outside of Germany, including a hospital in Zürich, Switzerland, felt compelled to
abandon the rite.42 Likewise, the governor of the Vorarlberg province in Austria
suggested that state hospitals abstain as long as legal uncertainty exists.43
34
„Judgement in forced circumcision case“, Legalbrief, 14.10.2009, http://www.legalbrief.
co.za/article.php?story=20091014084902414 (viewed 07.12.2012)
35
Pengelley, Jill: SA to ban most circumcisions in state hospitals, news.com.au, 12.11.2007, http://
www.news.com.au/national-old/sa-to-ban-most-circumcisions-in-state-hospitals/story-e6frfkvr111111 4853797 (viewed 07.12.2012)
36
Beniuk, David: Circumcision ban closer in Tasmania, The Australian, 21.08.2012, http://
www.theaustralian.com.au/news/breaking-news/circumcision-ban-closer-in-tasmania/story-fn3
dxiwe-1226455113178 (viewed 07.12.2012)
37
Leff, Lisa: Circumcision Ban To Be Stricken From San Francisco Ballot, Judge says, Huffington
Post, 27.07.2011, http://www.huffingtonpost.com/2011/07/27/circumcision-ban-stripped-fromsan-francisco-ballot_n_911590.html (viewed 07.12.2012)
38
Otterman, Sharon: Regulation of Circumcision Method Divides Some Jews, New York Times,
12.09.2012,
http://www.nytimes.com/2012/09/13/nyregion/regulation-of-circumcision-methoddivides-some-jews-in-new-york.html?pagewanted=all&_r=0 (viewed 07.12.2012)
39
40
„Oberster Mediziner warnt Ärzte vor Beschneidung“, Spiegel Online, 17.07.2012, http://
www.spiegel.de/panorama/gesellschaft/beschneidung-aerztekammer-praesident-montgomerywarnt-aerzte-a-844397.html (viewed 07.12.2012)
41
„Jüdisches Krankenhaus stoppt religiöse Beschneidung“, Süddeutsche Zeitung, 29.06.2012,
http://www.sueddeutsche.de/panorama/nach-umstrittenem-urteil-juedisches-krankenhaus-stopptreli gioese-beschneidungen-1.1397500 (viewed 08.12.2012)
42
„Hospitals in Austria and Switzerland suspend circumcision“, The Guardian, 25.07.2012,
http://www.guardian.co.uk/world/2012/jul/25/hospitals-in-austria-and-switzerland-suspendcircumci sion (viewed 08.12.2012)
43
Ibid.
180
2013
In the aftermath of the Cologne judgement, the case of Rabbi David Goldberg got
international media attention. Goldberg was a 64 year-old Israeli living in Hof, Germany,
where he served the local Jewish community. He regularly took an active part as a mohel
in Germany, Switzerland, the Czech Republic and Italy.44 In summer 2012, four German
citizens pressed charges for battery with the local prosecutor. Three judges, including two
citizen jurors, did not issue a sentence, and the case was not appealed to a higher court.45
In Baden-Wuerttemberg, non-medically indicated circumcision could be also performed
with impunity subject to a medically correct accomplishment. The attorney-general in
Hamm announced he would not seek further prosecutions. The attorney-general in
Cologne and Düsseldorf opted for deciding on a case-by-case basis.46 Other German
states like Bavaria, Saxony-Anhalt, Mecklenburg-Hither Pomerania and Hamburg did not
legislate specific regulations because of the lack of concrete cases.47 While
administrations of justice are authorized to issue directives to prosecutors and could
have regulate circumcision by decree, they did not exercise this option in order to avoid
an infringement of the separation of powers.48 The first German state which expressly
legalized religiously motivated circumcision was Berlin, but submitted the legalization to
preconditions such as proof of religious motivation, informing the parents about medical
risks, obtaining written consent by the parents and the performance of the operation under
proper medical standards (sterility and highest possible anesthesia).49
III.
DRAFT LAWS ON CIRCUMCISION
After the political parties' motion to create a law for the legalization of non-medically
indicated circumcision successfully passed the parliament, the German government,
respectively the BMJ, advised by University of Trier's Faculty of Law50, introduced the
“Law on the Scope of Custody with respect to Circumcision of a Male Child” for a
future referendum through the Bundestag. According to the draft law, § 1631 BGB on
substance and boundaries of custody should be extended with a fourth section which
reads: “(1) Custody also includes the right to agree on a medically not necessary
circumcision of a non-reasonable and non-judicious male child if it is performed
according to all rules of medical art. This does not apply if through the circumcision,
even in due considerations of its purpose, the child's well-being is endangered. (2) Within
the first six months after the birth of the child, designated persons by a religious
community are allowed to perform circumcisions according to section 1, if they are
44
Nadeau, Barbie Latza: Europe goes after circumcision, The Daily Beast, 24.08.2012,
http://www.thedailybeast.com/articles/2012/08/24/europe-goes-after-circumcision.html
(viewed
08.12. 2012)
45
Ewing, Jack: Circumcision Debate in Germany Reflects Religious-Secular Tensions, New York
Times, 19.10.2012, http://www.nytimes.com/2012/10/20/world/europe/circumcision-debate-ineurope-reflects-deeper-tension.html?_r=1&ref=europe (viewed 08.12.2012)
46
Cf. Müller-Neuhof, Jost, Keller, Claudia, Dernbach, Andrea: Kompromiss bei der
Beschneidung, Cicero, 11.08.2012, http://www.cicero.de/berliner-republik/gibt-es-einen-kom
promiss-bei-der-beschneidung/51521 (viewed 08.12.2012)
47
Cf. Ibid
48
Ibid.
49
Senatsverwaltung für Justiz des Landes Berlin, Berliner Rechtspraxis zum Umgang mit
Beschneidung, Pressemitteilung Nr. 49/2012, 05.09.2012,
http://www.berlin.de/sen/
justiz/presse/archiv/ 20120905.1035.374740.html (viewed 08.12.2012)
50
Latasch, p. 9
181
2013
specially trained for it and, if they are not a physician, equally proficient at performing a
circumcision.”51
The initiators of the draft law identified the legal problem primarily as a question of the
rights of the child in accordance with Art. 6 (2) GG which constitutes a right of defence
against the state where parents can freely choose how to educate their children without
state provision as long as it in the child’s best interest or does not violate another
fundamental right. Thus, the state gives parents a presumption of keeping the child’s best
interest at heart. A cultural, religious or prophylactic circumcision would not fall under
the scope of a forbidden disciplinary measure under § 1631 (2) BGB (physical
punishment, mental injury or other degrading measures). Therefore, “approval granted
within the scope of custody eliminates the unlawfulness of the interference with physical
integrity”52. But as the age the child increases, right of self-determination gradually
outweighs the parent's right to direct their child’s education. Upon reaching the age of 14,
the child can freely choose their own religion and if they are older than 12, their parents
cannot force them to change their previous religious affiliation. Further, recognizing the
affected boy's development-dependent veto right, the draft law subjected circumcisions to
more conditions: agreement by the parents, minority of the child, professional
performance by medical standards, effective pain treatment, and an extensive account of
considerations related to the child's choice. In relation to freedom of religion, the
German government wanted to allow the performance of circumcision by persons,
approved by the religious community as well as by professionally-trained physicians,
within the first six months of the child’s life. This would happen because these persons,
particularly the mohelim, are not just responsible for the medical procedure but also for
religiously constitutive rites. In that way, the draft law would respect the freedom of
religion enshrined in Art. 4 (1) and (2) GG and the right of religious communities to
settle their matters and regulations autonomously, as described in Art. 140 GG and Art.
137 Weimarer Reichsverfassung (Weimar Constitution, WRV).
In an alternative proposal, the “Law on the Scope of Custody and Rights of Male
Children related to Circumcision”, the extension of § 1631 BGB reads:
“Custody also includes the right to consent to a non-medically required
circumcision of the male child, if it has reached the age of 14, is able to
reason and appears judicious, has agreed to the circumcision, and it is
performed according to all rules of the medical art by a physician with
the qualification of a medical specialist in paediatric surgery or urology.
This does not apply if, through the circumcision, even in due
considerations of its purpose, the child's well-being is endangered.”53
51
“(1) Die Personensorge umfasst auch das Recht, in eine medizinisch nicht erforderliche
Beschneidung des nicht einsichts- und urteilsfähigen männlichen Kindes einzuwilligen, wenn diese
nach den Regeln der ärztlichen Kunst durchgeführt werden soll. Dies gilt nicht, wenn durch die
Beschneidung auch unter Berücksichtigung ihres Zwecks das Kindeswohl gefährdet wird. (2) In den
ersten sechs Monaten nach der Geburt des Kindes dürfen auch von einer Religionsgesellschaft dazu
vorgesehene Personen Beschneidungen gemäß Absatz 1 durchführen, wenn sie dafür besonders
ausgebildet und, ohne Arzt zu sein, für die Durchführung der Beschneidung vergleichbar befähigt sind.“
52
„Eine im Rahmen der Personensorge erteilte Einwilligung nimmt dem Eingriff in die
körperliche Unversehrtheit die Rechtswidrigkeit.“ Ibid., p. 21
53
„Die Personensorge umfasst auch das Recht, in eine medizinisch nicht erforderliche Beschneidung
des männlichen Kindes einzuwilligen, wenn es das 14. Lebensjahr vollendet hat, einsichts- und
182
2013
The draft law's authors mainly based their arguments on the assumption that a
circumcision is a serious interference with the child's physical integrity: “The case of
circumcision concerns a painful and risky surgical intervention which leads to the
irreversible removal of a highly sensitive and functionally important part of the body.”54
Hence, circumcisions would result in loss of sensitivity and pleasurable sensation, as well
as creating physical risks including infection, haemorrhaging, scar formations, postoperative pain and so on. Furthermore, the initiators of the bill criticized the government's
draft law for not taking the child's right to physical integrity into account sufficiently.
Any medical treatment which interferes with a person’s physical integrity would
constitute a criminal offence of bodily injury. The act is not illicit if the affected person
is an adult, able to agree, has received clarification and has effectively consented. With
regard to infants, according to §1626 (1) BGB, the person entitled to custody, usually the
parents, gives consent by proxy. However, religiously or culturally motivated
circumcision would lack medical necessity, so the child's right to physical integrity takes
priority over the parental right to direct their child’s education and their religious
freedom. The latter in particular would be restricted to symbolic rites not including rites
which cause permanent physical damage. As a criminal offence , non-medically
indicated circumcision, as opposed to one for medical reasons, would require an
acquiescence by the affected child and the child would need to be informed and advised
about the risks, advantages and disadvantages. However, because children are not capable
of complex reasoning and informed consent before a certain age, the authors demanded a
change to the age limit for a performance of a non-medically indicated circumcision to 14
years. In fact, a law framed within the idea of the parliamentarians who submitted the
draft would criminalize any non-medically indicated circumcision of male children
before the age of 14 years.
IV.
CONFLICTING FUNDAMENTAL RIGHTS
While the argumentation of the Cologne State Court's judgement as well as that of the
authors of the alternative draft law has been in tune with opinions of the legal scholars
endorsing a ban on non-medically indicated circumcision of boys, the reasoning by the
German government and its proposal seemed pretty identical to the views of the
opponents of such a ban. The previously mentioned cases and draft laws shed light to the
point where legal complexity of the subject of infant circumcision is located. Basically,
the legal relationship is “pentagonal”55, including the parents' right of education and
freedom of religion and the child's right of physical integrity, self-determination and
freedom of religion.
A.
Bodily Injury
urteilsfähig ist, der Beschneidung zugestimmt hat und diese nach den Regeln der ärztlichen Kunst von
einer Ärztin oder einem Arzt mit der Befähigung zum Facharzt für Kinder-chirurgie oder Urologie
durchgeführt werden soll. Dies gilt nicht, wenn durch die Beschneidung auch unter Berücksichtigung
ihres Zwecks das Kindeswohl gefährdet wird.“ Deutscher Bundestag, Drucksache 17/11430, p. 4
54
„Bei der Zirkumzision handelt es sich um einen schmerzvollen, mit Risiken behafteten
chirurgischen Eingriff, der zu einer irreversiblen Entfernung eines hochsensiblen, erogenen und
funktional wichtigen Körperteils führt.“ Ibid., p. 6
55
Höfling, Wolfram: Die (medizinisch nicht indizierte) Zirkumzision aus grundrechtsdogmatischer
Sicht, Presentation at the Plenary Session of the German Ethics Council on the Topic of Religious
Circumcision, Transcipt, p. 18
183
2013
As already mentioned in the alternative draft law, any kind of medical intervention
affecting one's body falls under the criminal offence of bodily injury on the basis of § 223
(1), § 224 (1) N. 2 and 5 and § 226 (1) N. 256. Bodily injury consequently also has a
bearing on the fundamental right of physical integrity (Art. 2 (2) GG). But bodily injury
by a physician is de jure if the (adult) patient gives consent. This applies to every kind of
circumcision as well as to tattoos, cosmetic surgery etc. Medical equipment such as
scalpels do not constitute a “dangerous tool” according to § 224 (1) N. 2 StGB if they are
used lege artis by the physician (see the judgement of the Cologne State Court).
Generally, with regard to bodily injury, few requirements have to be fulfilled so as to
qualify one’s act as unlawful. The person must have materially acted (realization of the
criminal offence, physical abuse or health damage), the act must be unlawful and the
offender must be aware of his guilt.57 As the LG Köln's verdict of acquittal showed, nonmedically indicated circumcision is not unlawful in the context of the current legal
situation because physicians and parents to date assumed legality. Also a medically
necessary circumcision as treatment of illnesses stands because of its curative character.
Some critics of the actual prevailing legal “norm”, favouring instead a criminalization of
non-medically indicated circumcision of male infants, like Putzke or Rolf Dietrich
Herzberg argued that circumcision as a “genital mutilation”58 or “amputation”59 would
just differ from female genital mutilation only in intensity. Noting that female genital
mutilation usually disfigures the entire female genital region, is accompanied by lifelong
pain and aims to extinguish any feeling of sexual pleasure, similar pejorative and nonobjective comparisons do not provide a basis for a constructive debate. Stereotypes have
reached the point where psychologists like Ronald Goldman, who became quite
prominent amongst critics of circumcision, allege traumatic long-term consequences,
resulting in a disturbed sense of basic trust between mother and son, evoking hatred by
the son for his mother and thus, giving an explanation for a higher rate of domestic
violence by Jewish husbands.60 Such suspect hypotheses lack any kind of empirical
evidence. In general, reputable surveys on the negative medical and psychological effects
are difficult to find.
Likewise, commentary by traumatized male Jews or Muslims – even it is a highly private
matter and thus difficult for the media to access – has failed to appear in the public
discussion. Accordingly, Michael Germann concluded:
“Regarding the consequences of circumcision on boys, serious traumata, in the
long history of Jewish, Muslim and non-religiously motivated circumcision have
still not been heard of, with the exception of some individual cases. Until
nowadays it has not become evident that these unbearable experiences have to
generalized by the state.”61
56
Cf. Schneider, p. 105
57
Cf. ibid., p. 105ff.
58
Herzberg, Rolf Dietrich: Rechtliche Probleme der rituellen Beschneidung, in: Juristenzeitung
7/2009, p. 332-339, here p. 333
59
Putzke, Holm: Recht und Ritual – Ein großes Urteil einer kleinen Strafkammer, in: Medizinrecht
30/2012, p. 621-625, here p. 623
60
61
Cf. Latasch, p. 5
„Hinsichtlich der Folgen der Beschneidung von Knaben sind schwerwiegende Traumata, von
denen in der langen und breiten Geschichte der jüdischen, muslimischen und nichtreligiös
184
2013
On the other side, advocates of circumcision stress its prophylactic advantages in
diminishing communicability of all kinds of sexually transmitted and venereal diseases one of the reasons why circumcision is so pervasive in the United States. The medical
debate on the advantages and disadvantages of circumcision is almost as highly charged
as the legal debate. If even medical researchers and physicians did not universally agree
whether to recommend or advise against circumcision, it is equally as difficult if not
more so for lawyers and medical laymen to form an objective opinion. Certainly,
circumcision is still a minor invasive surgery and as such poses certain risks such as pain
and complications. New-borns possess the ability to feel pain, so effective pain treatment
through anaesthesia is essential. Circumcision is today considered a routine intervention
in conventional medicine, and thus poses a relatively low risk. According to a survey in
the New England Journal of Medicine, the risk of complication for circumcisions is at
0,19% if executed by physicians, and at 0,13% if executed by a mohel.62 The difference
can be explained by the experience mohelim possess through routine practice. This
illustrates the importance of performing the procedure to high medical standards. The
medical professionalism of the mohelim, through strict training and examination, has
already existed in Germany since the late 1840s.63
Keeping the low risk in mind (and considering the extent to which few parents would put
their children in jeopardy) as well as the nearly negligible impact on male health, and
comparing it to terms in § 223 and § 226 StGB such as “abuse”, “loss or uselessness of
an organ”, “disability” or “health damage”, it is difficult to define non-medically
indicated circumcision at least as grievous bodily harm. So long as there is no solid
empirical evidence that proves the negative consequences for physical and psychical
health, circumcision comes under the category of minor bodily injury and can be excused
lawfully as minor offence64. Minor bodily injuries also do not constitute an offence if
they are “socially adequate”,65 describing acts that do not seriously impair the normal
social order and are widely accepted by a social norm. Both criteria seem to be applicable
to circumcision: it neither poses a risk for the social coexistence nor was it ever socially
rejected or legally criminalized in German history.
B.
Right to Physical Integrity
Even though not a bodily injury, circumcision, medically necessary or religiously,
aesthetically, or prophylactically motivated, undoubtedly interferes with the child's
physical integrity. Like every other person, children, whether German or foreign
nationals, hold the right to physical integrity (Art. 2 (2) GG), from birth and until death.66
motivierten Beschneidung etwas über Einzelfälle hinaus zu hören gewesen sein müßte, bis heute
nicht so evident, daß ihre Bewertung als unerträglich von Staats wegen allgemeinverbindlich
gemacht werden müßte.“ Germann, Michael: Der menschliche Körper als Gegenstand der
Religionsfreiheit, in: Kern, Bernd-Rüdiger, Lilie, Hans (ed.): Jurisprudenz zwischen Medizin und
Kultur, Peter Lang Verlag, Frankfurt/Main 2010, p. 35-59, p. 55
62
Cf. Ibid., p. 6
63
Judd, Robin: Circumcision and Modern Jewish Life. A German Case Study, 1843-1914, in:
Mark, p. 142-155, here p. 152f.
64
Schneider, p. 96
65
Ibid., p. 113f
66
Ibid., p. 31
185
2013
But this fundamental legal right should not be confused with the notion of legal capacity,
which describes reaching the age of majority and the ability to exercise fundamental
rights.67 Any interference with a person's physical integrity, whether through surgical
intervention or not, requires consent. Due to the circumstance that infants, and especially
new-borns, are capable of reasoning before they reach a certain age, it is not possible for
them to give informed consent to such an interference with their physical integrity.
German legislation does not clearly state the age at which a child's is able to give full
informed consent, but instead links the ability to reason to one’s mental and moral
maturity.68
According to the German Medical Criminal Law, children under the age of 14 years are
generally not able to consent.69 It follows from the foregoing that, and as it was argued in
the government's draft law, parents or persons entitled to custody may consent for their
wards in the context of their right to educational freedom contained in Art. 6 (2) S. 1 GG
and § 1626 (1) BGB. “The exercise and fulfilment of bodily self-determination as a
fundamental legally protected part of custody reside primarily with the parents.” 70 This
includes not only medically necessary interferences with the child's physical integrity but
to some extent also interventions for prophylactic (i.e. vaccination) or aesthetic reasons
(i.e. earlobe piercing). Both examples are connected to a marginal risk. Particularly in the
case of the latter, which occurs without any medical benefit, one could make an analogy
to the case of a non-medically indicated circumcision. They are, however, to be evaluated
as socially adequate and therefore do not represent bodily injury. Making the comparison
between circumcision and earlobe piercing illustrates that the “natural” body is not an
objective fact, but instead a social norm. As Michel Chaouli stated, opponents of
circumcision are attached to the image of a naturally unscathed body: “Because with
«natural body» we certainly do not mean the body as it stands by « nature» at birth. We
mean a body as it «naturally» should be.”71 Chaouli used the example of an excision of a
cartilage or sixth finger from a new-born's hand – surely, not a medical need – which
would not be punishable by law. The “objective” idea of a “natural body” can differ
between religious and secular peoples as emphasized by Germann:
“That herewith the religious interest of integrity is directed to an
interference with the physical integrity, is just seemingly a paradox. The
normal, to which the «integrity» is determined, makes the difference:
The physical integrity defines itself by an objective perception of an
unscathed body […]. Religious integrity is determined by a religious
self-conception of a physical state which is religiously «all right».“ 72
67
Ibid.
68
Fateh-Moghadam, p. 124
69
Ibid.
70
„Die Wahrnehmung und Ausfüllung der körperbezogenen Selbstbestimmungsinteressen als
grundrechtlich geschützer Teil der Personensorge obliegt vorrangig den Eltern.“ Ibid., p. 132
71
„Denn mit «natürlichem Leib» meinen wir ja nicht den Körper, so wie ihn «die Natur» uns bei
der Geburt darbietet. Wie meinen einen Leib, wie er «natürlicherweise» sein soll.“ Chaouli,
Michel: Markierte Körper, Die Zeit, 25.10.2012, http://www.zeit.de/2012/44/Beschneidungsurteil
(viewed 12.12.2012)
72
„Daß hiermit das religiöse Integritätsinteresse auf einen Eingriff in die körperliche Integrität
gerichtet ist, ist nur scheinbar paradox. Das Normal, an dem die «Integrität» bestimmt wird, mach
den Gegensatz: Die körperliche Integrität bestimmt sich nach einer objektiven Vorstellung vom
unversehrten Körper […]. Die religiöse Integrität bestimmt sich hier nach dem religiösen
186
2013
C.
Right to Educational Freedom
According to the above mentioned concepts, a relativism of values elicited by an
increasing pluralism of cultures and religions within the Western hemisphere may affect
the image of physical integrity. Thus, it seems indispensable to evaluate how far the state
and the law guarantees this diversity of cultures through the parents' right to educate their
children freely and the right of free exercise of religion. The parents' right to educate their
children according to their own personal perceptions is based on Art. 6 (2) GG and §
1626 (1) BGB. The discussion on non-medically indicated circumcision is mainly linked
to the question on the extent to which this free exercise is guaranteed and the point at
which the state may have set boundaries. Art. 6 (2) GG constitutes the “foundations of the
family legal relationship”73 between parents and their children, containing both rights and
obligations. Critics of non-medically indicated circumcision like Reinhard Merkel
defined this right not primarily as a right connected to a freedom, but rather as a fiduciary
mandate for the fostering and education of the child.
Further, as it pertains to the child's well-being and not to the parents' autonomy,
education can be described more as an obligation than as a right.74 If Art. 6 (2) GG is
seen as an escrow instead of a parental right, consequently, the framework for the parents'
decisional radius becomes more constrained. The argumentation in the government
initiated draft law determines Art. 6 (2) GG as a right of defence against state
involvement – no doubt as long as it aims to the child's well-being – and thus, ensures the
plurality of parenting concepts, including religious beliefs: “[...] the constitutive influence
of families, friends, and possibly also of religious communities is usually viewed by
legislation not as problematic but rather as worthy of protection.”75 Indisputably, the law
sets a limit to parental custody in cases where it does not serve the child's well-being.
Thus, state custodianship is triggered according to § 1631 BGB if, as listed in section 2,
educational violence, physical punishment, mental damage or other humiliating measures
are part of the concept of education. According to Wolfram Höfling, this state
custodianship does not signify education in general, and but is more significant in cases
of transgressing the boundaries towards abuse.76 That the state shapes custodianship as a
lenient and flexible concept is reasonable because it is unavoidable that parental
education implies some interference with the child's fundamental legal protective rights.
“Parents have therefore also in cases of decisions affecting the physical integrity of their
Selbstverständnis von einem körperlichen Zustand, der religiös «in Ordnung» ist.“ Germann, p. 52
73
„Fundament der familienrechtlichen Beziehung“ Krüper, p. 548
74
Merkel, Reinhard: Zur religiös motivierten frühkindlichen Knabenbeschneidung strafrechtliche
und rechtsprinzipielle Probleme, Presentation at the Plenary Session of the German Ethics
Council on the Topic of Religious Circumcision, p. 14, and Merkel, Reinhard: Die Haut eines
Anderen, Süddeutsche Zeitung, 30.08.2012, www.sueddeutsche.de/wissen/beschneidungsdebattedie-haut-eines-anderen-1.1454055 (viewed 12.12.2012)
75
„[...] der für die Persönlichkeitsbildung konstitutive Einfluss von Familien, Freunden und
gegebenenfalls auch von Religionsgemeinschaften von der Rechtsordnung in der Regel nicht als
problematisch, sondern als schützenswert betrachtet wird.“ Fateh-Moghadam, p. 126
76
Höfling, p. 20
187
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children a degree of latitude which is not to be exceeded up to the point that the decision
constitutes an evident abuse of custody.”77
Here arises the question on whether non-medically indicated circumcision constitutes
such a malpractice. Fateh-Moghadam provided three criteria to evaluate whether there is
abuse.78 First, the severity of the interference and the consequences and risks for health
are essential. As a minor medical intervention and with a low rate of risk this does not
apply to circumcisions. Second, the interference must have medically curative and
preventive benefits. As mentioned above the benefits of prophylactic circumcisions – at
least in Western countries – are controversial but a negative impact on health, cannot be
alleged either. And finally, the interference must not appear as physical punishment,
mental damage or humiliation. Male circumcision definitely does not represent neither a
punishing character nor is meant as humiliation, despite the argumentation of some
supporters of a circumcision ban may imply79. Rather the decision to circumcise the child
is motivated by the presumption to act in the sense of its well-being by providing
religious benefits, a symbol of social affiliation and avoidance against stigmatization by
members of the same group.
D.
Right to Religious Freedom
Considering that the majority of non-medically indicated circumcisions in Germany are
performed by Muslims and Jews with religious motivation (with exception of Alavites
who practice circumcision for cultural reasons), it is worth noting that critics of nonmedically indicated circumcision disregard the important aspect of freedom of religion.
While Merkel stated that religious freedom would not play any role in the legal
discussion on circumcision80, other opponents to the practice trivialized its constitutive
role for Judaism and Islam. According to them, interference with religious freedom
through a ban of circumcision would not affect the exercise of Jewish or Islamic religion.
Putzke assessed: “Neither in Judaism nor in Islam, the benefit [of circumcision] can be
seen in the acquisition of membership. According to the rules of both religions,
circumcision is religiously affirmative and not religiously constitutive.”81 Here, it seems
necessary to evaluate the importance of circumcision for Judaism and Islam.
The obligation for circumcision in Jewish law is mainly based on the Torah passage in
Gen 17:9-14: “This is my covenant which you are to keep, between me and you and your
seed after you; every male among you shall be circumcised. You shall circumcise the
flesh of your foreskin, so that it may serve as a sign of the covenant between me and you.
At eight days old, every male among you shall be circumcised, throughout your
generations, […] But a foreskinned male who does not circumcise the flesh of his
77
„Eltern haben daher auch bei körperbezogenen Entscheidungen für ihre Kinder einen
Ermessensspielraum, der erst dann überschritten ist, wenn sich die Entscheidung als evidenter
Missbrauch des Sorgerechts darstellt.“ Fateh-Moghadam, p. 132
78
Ibid., p. 133ff.
79
Cf. Herzberg, p. 333
80
Cf. Merkel, p. 13
81
„Weder im Judentum noch im Islam kann der Nutzen im Erwerb der Mitgliedschaft gesehen
werden: Nach den Regeln beider Religionen ist die Beschneidung religionsbestätigend, nicht begründend.“ Putzke, p. 701
188
2013
foreskin, that person shall be cut off from his people [...]”82 The rite of circumcision is
mentioned also in other parts of the Torah and plays a role in several Biblical stories.
Jewish theology considers circumcision an irreversible symbol of the affiliation to the
covenant with God, as constitution of the family as a religious community, as hope for a
better destiny after death, and most importantly as a distinctive mark which is necessary
for the membership to the Jewish people.83 “In traditional Jewish society two criteria
determine the affiliation of males to the congregation of Israel: birth to a Jewish mother,
and circumcision, which is a Torah obligation. These set permanent and unequivocal
bounds to the membership group of the Jewish people.”84 While a male without a Jewish
mother can convert, somebody with a Jewish mother but not circumcised has a marginal
position within the community. Because uncircumcised group members are barred from
some commandments85 or cannot participate in religiously important holidays such as
Passover86 a full religious practice is not possible. In the middle of the 19th century,
within the German Reform Judaism took place a debate about circumcision which
concluded that belonging to Judaism as a universal religion does not necessarily require
to be circumcised. Some communities accepted the compromise that they would
recognize uncircumcised boys with a Jewish mother as long as they decide by their
thirteenth birthdays to undertake circumcision by themselves. If not willing to do so, the
community would be free to exclude him.87 Nowadays, at least in Israel, practically all
Jewish boys, regardless of whether they are religious or secular, undergo circumcision in
accordance with Jewish tradition and law.88 According to a national survey about
religious observance in Israel conducted in 1993, 93% of the respondents declared
circumcision as important or very important to them. This also applied to 70% of the nonobservant Jews.89 That circumcision depicts a central constituent of the Jewish religion
was reinforced by the Zentralrat der Juden in Deutschland (Central Council of Jews in
Germany) after the Cologne court's decision.90 The revival of circumcision even among
secular Jews in the European diaspora resulted in great part from the effect of the
Holocaust and the persecutions in Nazi Germany on survivors and their descendants as
Giles Fraser accounts for: “The philosopher Emil Frankenheim, himself a survivor of
Sachsenhausen concentration camp, famously added to the 613th commandments [sic] of
the Hebrew scriptures a new 614th commandment: thou must not grant Hitler
82
Cited in: Mark, Elizabeth Wyner: Wounds, Vows, Emanations: A Phallic Trope in the Patriarchal
Narrative, in: Mark, p. 3-17, here p. 4
83
Zimmermann, Ulrich: Kinderbeschneidung und Kindertaufe. Exegetische, dogmengeschichtliche und biblisch-theologische Betrachtung zu einem alten Begründungszusammenhang, Lit
Verlag, Hamburg 2006, p. 126f.
84
Rubin, Nissan : Brit Milah: A Study of Change in Custom, in: Mark, p. 87-97, here p. 87
85
Ibid.
86
Cohen, Shaye J.D.: A Brief History of Jewish Circumcision Blood, in: Mark, p. 30-42, here p.
35
87
Judd, p. 145ff.
88
Tabory, Ephraim, Erez, Sharon: Circumscribed Circumcision. The Motivations and Identities of
Israeli Parents who Choose not to Circumcise their Sons, in: Mark, p. 161-176, here p. 161
89
90
Ibid., p. 162
Zentralrat der Juden, Pressemitteilung, 27.09.2012, http://www.zentralratdjuden.de/de/
article/3731.html (viewed 12.12.2012)
189
2013
posthumous victories. This new mitzvah insisted that to abandon one's Jewish identity
was to do Hitler's work for him.”91
Even though in Islam a commandment of circumcision, in Arabic legal language called
khitan or tahur and literally meaning “purity”, is not directly mentioned in the Quran, the
custom survived the changes established by Mohammed’s reforms.92 The rite, understood
as initiation of maturity from childhood to manhood, finds its justification in the sunna,
the sum of prophet Mohammed’s practices. Within Islamic jurisprudence, the sunna
depicts an unquestioned legal source and the term designates roughly the established,
rightfully considered practice.93 Because Mohammed was circumcised, it is interpreted as
a real tradition of the prophet (hadith)94 which every devout Muslim has to observe.
Further, circumcision gets legitimized as part of the millat Ibrahim (religion of
Abraham)95. Islamic scholars construe the Quranic sura 2:213 as a legitimization for
circumcision because God commanded Abraham to circumcise himself, and according to
sura 16:123, it outlines a duty to every Muslim to follow the good example of
Abraham.96 Referring to the tradition of Abraham reflects the Islamic rule that all norms
revealed to the previous prophets have to be obeyed. Consequently, the Bible can be also
thought of as a legal source for Islamic jurisprudence.97 While for the Shafi'it school
circumcision constitutes a religious duty whose refusal is punishable, other Islamic
schools of religious jurisprudence strongly recommend it.98 “Admittedly, there is a
different evaluation of circumcision into the religious hierarchy of commandments and
obligations among schools of jurisprudence. But in the Islamic world, it can be said that
there is consent describing circumcision as an indispensable and fundamental religious
obligation for Muslims.”99 So, for example, a Muslim going to Mecca for pilgrimage can
do so lawfully only if circumcised.100 Circumcision is lawful on the 7th day after birth but
can be performed until the age of puberty, so there is a regional difference about the exact
91
Fraser, Giles: This German Circumcision Ban is an Affront to Jewish and Muslim Identity, The
Guardian, 17.07.2012, http://www.guardian.co.uk/commentisfree/belief/2012/Jul/17/germancircumcision-affront-jewish-muslim-identity?INTCMP=SRCH (viewed 12.12.2012)
92
Netton, Ian Richard (ed.): Encyclopedia of Islamic Civilisation and Religion, Routledge, New
York 2008, p. 125
93
Rohe, Mathias: Das islamische Recht. Geschichte und Gegenwart, Verlag C.H. Beck, München
2011, p. 52
94
Ohlig, Karl-Heinz : Weltreligion Islam. Eine Einführung, Matthias-Grünewald-Verlag, Mainz
2000, p. 151
95
Netton, p. 125
96
Auffarth, Christoph, Bernard, Jutta, Mohr, Hubert (ed.): Metzler Lexikon Religion: Gegenwart –
Alltag – Medien, Verlag J.B. Metzler, Stuttgart 1999, p. 145; here, sura 2:214 wrongly stated
instead of sura 2:213
97
Ibid., p. 146
98
WHO, p. 3
99
„Zwar gibt es unter den Rechtsschulen eine unterschiedliche Einstufung der Beschneidung in
die religiösen Gebots- und Pflichtshierarchien. Dennoch kann in der islamischen Welt von einem
Konsens gesprochen werden, der die Beschneidung als unverzichtbare und elementare religiöse
Pflicht für die Muslime bezeichnet.“ Ilkilic, Ilhan: Beschneidung der minderjährigen Jungen aus
der Sicht der Muslime bzw. des Islam, Presentation at the Plenary Session of the German Ethics
Council on the Topic of Religious Circumcision, p. 10
100
WHO, p. 3
190
2013
time.101 Some Muslims criticize postnatal circumcision because it would lose its sense as
a rite of initiation and reduces it to an exercise of religious duty.102 After all, for converts,
circumcision does not represent an obligation.103 And likewise, circumcision is not
universal to the whole Islamic world. For example, some Muslims of the Tanzanian
ethnic group of the Sukuma who are not circumcised for traditional reasons do not
practice the custom.104 Nevertheless, circumcision still remains a constitutive rite and part
for the vast majority of Muslims. In reaction to the Cologne State Court's judgement, the
importance of circumcision as an essential element of Islam was repeatedly underlined by
Islamic organizations such as the Koordinationsrat der Muslime (Coordinating Council
of Muslims in Germany).105
Bearing the described role of circumcision in Judaism and Islam in mind, statements such
as Putzke's seem to be absurd and emerge from a lack of understanding and sensibility. In
both religions, circumcision is constitutive of full participation in religious life, represents
an essential rite of initiation and additionally, and at least in the case of Judaism, also a
necessity for the affiliation to the religious community. Likewise, the arguments by some
critics that few non-circumcised Jews and Muslims exist and hence, this would be
reconcilable with a ban fall short.106 Putzke’s argument that religious communities
automatically transform in case of a circumcision ban by claiming that as fewer boys
would be circumcised, this condition would induce stigmatisation to a lesser extent, is
naive.107 Religions undergo transformations and innovations but these processes do not
occur from one day to the other. And as the history of Judaism shows, circumcision
seems especially resistant to social and theological changes and was barely ever
challenged from within or from outside. So in a case of a ban, most probably the scenario
of circumcision tourism or the performance of the practice in secret, outside the
professional control of physicians, would appear.
In addition, Putzke seems to forget that, ultimately, the state left it up to the religious
communities to decide which practices represent central features of a particular religion.
In the opposite case, it would have endangered the state's neutrality in religious
matters.108 Art. 4 GG guarantees not just freedom of belief, but also a collective exercise
of religion and gives for these reasons religious communities the right to practice and
develop their faith together.109 Moreover, religious freedom includes the performance of
all kinds of ritualistc acts, the exercise and observance of religious commandments
(divine services, prayers, sacrifices, sacraments), as well as symbols which depict
religion and finally acts attached to religious education alike.110 Children too bear the
fundamental right of religious freedom keeping in mind the distinction between legal
101
Ibid.
102
Ohlig, p. 151
103
Netton, p. 125
104
WHO, p. 3
105
Koordinationsrat der Muslime, Pressemitteilung, 26.07.2012, http://koordinationsrat.de/
detail1.php?id=91&lang=de (viewed 12.12. 2012)
106
Cf. Merkel, p. 14f.
107
Putzke, p. 703
108
Beulke, Dießner, p. 434
109
Schneider, p. 62
110
Ibid., p. 63f.
191
2013
maturity and legal capacity. Therefore, § 5 RKEG and also § 1626 BGB declare that the
child's self-determination in religious matters should depend on the child's age.111 As long
as the child has not reached majority, parents have to decide about the child's religious
affiliation in its presumed interest. While § 5 RKEG sets the 12th year as the age limit
after which parents are not allowed to educate their children in another religion than the
one practised before, with the completion of the children 14th year are free in the decision
of which religion they wish to belong to.112 For Germann, the parental influence on the
child's religious identity, derived from the right of religious freedom in connection with
educational freedom, also includes the irreversible religious initiation, as is the case of
baptism as an indelible mark of belonging to the Christian church or circumcision for
other religions.113
Undeniably, the right to religious freedom can be limited by other fundamental rights,
especially if one’s religious freedom interferes with rights of others as for example in the
case of ritual murder or human sacrifice: “On the other hand, the objective state
obligation of protection of life and physical integrity, deriving from Art. 2 II 1 GG, can
come into effect as a constitutionally immanent barrier to religious freedom.”114 Further
references to the barriers of the exercise of religious freedom can be found in Art. 136
WRV, stipulating that religious freedom neither determines nor limits other fundamental
rights and obligations.115 Considering the evaluation of the interference of circumcision
with the child's right to physical integrity, the same rationale applies here, so that the
exercise of the right to religious freedom stays within a tolerable frame.
When critics of religiously motivated circumcision refer in their arguments to religious
freedom, they emphasize the aspect of negative religious freedom. In the case that a child
wishes at some point in the future to convert to another religion or to become secular,
circumcision would represent an irreversible mark of affiliation, always reminding the
affected person of their religious heritage.116 As above mentioned the legislature
designates the child's maturity of religious freedom at the age of 12 years, respectively 14
years so that thenceforward the child possesses freedom in religious matters, including
opting out or converting to another religion. Arguments such as those by Schneider
claiming the irreversible mark of circumcision would be a compulsion of creed and thus
hinder somebody from renouncing from their former religion117, are relatively weak.
First, as far as known, no religion prohibits circumcised males from joining and second,
religious socialisation in general during childhood and youth are unavoidably formative,
so that the upbringing in a Catholic or Hindu family will shape one’s future life,
regardless of whether somebody is still observant, secular or converted to another
religion. Surely, critics of circumcision have a point in claiming that religious rites and
111
Cf. Germann, p. 55
112
113
Germann, p. 55
114
„Zum anderen kann die aus Art. 2 II 1 GG abgeleitete objektive Schutzpflicht des Staates für
Leben und körperliche Unversehrtheit als eine verfassungsimmanente Schranke der
Religionsfreiheit zum Tragen kommen“ Ibid., p. 50
115
Herzberg, Rolf Dietrich: Religionsfreiheit und Kindeswohl. Wann ist die Körperverletzung
durch Zirkumzision gerechtfertigt?, in: Zeitschrift für Internationale Strafrechtsdogmatik 7/2010,
p. 471-475, p. 471
116
Putzke, p. 624
117
192
2013
dogmas have to be open to criticism and adapted to social and legal frameworks to some
degree, but a plain prohibition seems to be the wrong way: “Indeed, it does not encourage
– and there is a relevant socio-ethical dimension too – to any degree a willingness by
religions to challenge themselves if religious people are getting stigmatized and have had
one of the essential features of their identity described as cruel, criminal, dangerous to a
child's well-being, as an act of sexual violence, torturously painful and barbaric. Thus it is
understandable why groups would feel discriminated against.”118
V.
CONCLUSION: TOWARDS A MULTICULTURAL APPROACH
Non-medically indicated circumcision is situated in a melange of conflicting fundamental
rights of parents and children. To determine if the rite is legally justified, it makes sense
to put the affected rights into a cost-benefit-calculation, balancing the pros and cons, the
advantages and disadvantages for all persons concerned. On the cost-side, the
interference with the child's right of physical integrity and religious freedom (as far as it
is capable of exercising this right) as well as (the relatively low) risk of such a minor
surgical intervention have to be named. The benefit-side includes the exercise of the
parental right to religious freedom and educational freedom and the – certainly, to some
degree subjective – advantages for the child's well-being such as establishment of an
identity, practice of a constitutive part of Judaism or Islam, religious and cultural
affiliation to a particular group, observance of religious commandments, exercise of the
religion according to its obligations, avoidance of stigmatization by group members and
so on. Because the health benefits are controversial within the medical debate they should
not be taken into consideration. Nevertheless, it appears that the benefit-side outweighs
the cost side. Above all, religiously motivated circumcision does not pose a threat to the
child's well-being. But criminalisation of the rite would massively interfere with the
parents' right to religious freedom: “If circumcision of children of for instance Jewish and
Muslim parents is criminally prohibited [...], they would be legally discriminated with
regard to their faith and criminalized during a central moment of their exercise of
religion. The criminal prohibition of circumcision for Jewish and Muslim parents of a
boy would even read: “Your son is not allowed to be a Jew. Your son is not allowed to be
a Muslim as long he is not of age.“119
Consequently, the positive referendum and ratification of the government-initiated draft
law can be appreciated. Based on the already enacted legislation, non-medically indicated
circumcision is explicitly legalised. There are areas that could be further clarified, such as
at what age the child can give consent and what qualifications for a person that performs
118
„Allerdings fördert es – und das ist sozialethisch ebenfalls nicht irrelevant – keineswegs eine
Bereitschaft bei den Religionen, sich in infrage stellen zu lassen, wenn religiösen Menschen nicht
nur signalisiert, sondern explizit gesagt wird, dass eines ihrer entscheidenden Identitätsmerkmale
als grausamer, zumindest krimineller Akt, als Missachtung des Kindeswohls, als Akt sexueller
Gewalt, als Folterqual und als barbarischer Akt bezeichnet wird. Da ist es schon nachvollziehbar,
sich diskriminiert zu fühlen.“ Dabrouk, Peter: Sozialethische Gesichtspunkte der aktuellen Debatte
um die religiös motivierte Beschneidung nicht-einwilligungsfähiger Jungen, Presentation at the
Plenary Session of the German Ethics Council on the Topic of Religious Circumcision, p. 24
119
„Würde die Beschneidung ihrer Kinder etwa jüdischen und muslimischen Eltern strafrechtlich
untersagt werden […], würden sie wegen ihres Glaubens rechtlich diskriminiert und in einen
zentralen Moment ihrer Religionsausübung kriminalisiert werden. Das (straf)rechtliche
Beschneidungsverbot für jüdische oder muslimische Eltern eines Knaben würden dann sogar
lauten: Euer Sohn darf nicht Jude, Euer Sohn darf nicht Moslem werden, solange er nicht
volljährig ist.“ Schramm, Eduard: Ehe und Familie im Strafrecht, Mohr Siebeck, Tübingen 2011,
p. 229
193
2013
circumcisions, who is not a licensed physician, is required. Unfortunately, the German
parliament refused parliamentary amendments in that direction. The alternative draft law
would not, however, constitute an acceptable solution. In Islam, parents probably can
wait until the boy reaches puberty and, according to that law, consider his capability to
consent to a circumcision. However, this option does not apply to Judaism where it is
religiously mandatory and essential that the newborn becomes circumcised on the 8th day
after his birth. Finally, the elimination of legal uncertainty prevents judges, seemingly
characterized by insensitivity, lack of understanding and marginalization of the rites and
faiths of minorities, as in the case of LG Köln, from criminalizing circumcision as bodily
injury. Alexander Ignor explained why legalization and not just a classification as
impunity was necessary: “A law which just imposes the religious rite just as «not subject
to prosecution» would not change anything but exacerbate the situation, to the
disadvantage of religious freedom. Parents, physicians and circumcisers […] could not,
indeed, be prosecuted but the religious custom itself would be legally marginalized. If an
act in the criminal code is just declared as «not punishable», than its unlawfulness is
presumed”.120
In this way, the German parliament sets an example for multiculturalism in an
increasingly pluralistic society integrating different cultures, religions and the customs
and beliefs of those peoples. The legal discussion on circumcision resulted from a
conflict between religion and the advanced secularisation of the state. Contrary to the
paradigm of secularism which affected the scientific and public debate on the relationship
between state and religion for decades, religious life in Germany is still vital and as well
as diverse, also through the important impact of immigration communities. Such debates
interestingly always arise whenever religious symbols appear in the public sphere.
Therefore, law can also be seen as cultural phenomenon where value judgement appears
in a cultural context. “Thereby, it comes to the irritating phenomenon that manners
«suddenly» appear as problem of law even though they could have presented a problem
already earlier.”121 Law provides time-bound answers and courts only judge if somebody
presses charges, according to the motto nullo actore, nullus iudex.
The debate on religiously motivated circumcision obscures the broader question of how a
multicultural society treats its minorities. In connection with banning circumcision, this
debate is certainly not a new one as the prohibition in the Roman Empire under Hadrian
illustrated. Indeed, German Jews and Muslims will not engineer a riot as done by Bar
Kochba – the social and historical conditions are not comparable – but it is questionable
how the ban of relatively harmless customs such as circumcision can be conducive to the
social integration of religious minorities.
120
„Ein Gesetz, das den religiösen Brauch nur «straffrei» stellt, würde daran nichts ändern,
sondern die Situation zulasten der Religionsfreiheit sogar noch verschlechtern. Eltern, Ärzten und
Beschneider […] könnten zwar nicht strafrechtlich verfolgt werden, aber der religiöse Brauch
selbst wäre ins rechtliche Abseits gestellt. Wird eine Handlung im Strafgesetzbuch lediglich für
«nicht strafbar» erklärt, dann wird ihre Rechtswidrigkeit vorausgesetzt.“ Ignor, Alexander:
Beschnittene Grundrechte. Was die Politik tun sollte, Cicero, 16.07.2012, www.cicero.de/berlinerrepublik/beschneidung-von-jungen-argumente-gegen-beschnittene-grundrechte-argumente-fuerbeschneidung-was-der-gesetzgeber-tun-sollte/51241 (viewed 13.12.2012)
121
„Dabei kommt es zu dem irritierenden Phänomen, dass Verhaltensweisen «plötzlich» als
Problem des Rechts erscheinen, obwohl sie schon viel früher als Problem hätten stellen können.“
Krüper, p. 547
194
2013
The debate on integration of immigrated minorities is frequently accompanied by a
discourse on identity. Cultural patterns interact with each other, so that hybridity and a
constitution of identity through affiliations to different groups characterize the process.122
The individual takes great interest in preserving his/her culture, religion and the attached
customs, providing self-respect and the possibility to make meaningful decisions. The
development of the state of law into a democracy and welfare state demands the
protection of more and more social barriers that undermine the status of equal
membership. Traditional fundamental rights do not suffice for a stable balance of identity
and difference in a culturally and religiously heterogeneous society. While economical
and ideological conflicts can be solved, it seems that the accomplishment of identity
conflicts does not provide fair political and legal procedures. Will Kymlicka stated that
the compromise would lay in the legal recognition of particular identity markers 123 such
as religiously motivated circumcision. Further, Kymlicka gave an account of the fact that
forced assimilation would be counterproductive for the integration of religious
minorities.124 Hence, a successful integration depends on granting a variety of choices
that do not just guarantee individual self-respect but also allow a critical examination and
eventual revision of one’s own convictions. Besides facilitating self-reflection of own
beliefs and practices, cultural diversity enriches all members of society. Tolerance for
other cultural and religious concepts and customs proves a necessity for a democratic
society shaped by individualisation and pluralisation. And even though not considered in
the cost-benefit-calculation, indeed, this seems to weight on the benefit-side as much as
protection of fundamental rights.
122
Young, Iris Marion: Self-determination and Global Democracy: A Critique of Liberal
Nationalism: in Breinig, Helmbrecht, Gebhardt, Jürgen, Lösch, Klaus (ed.): Multiculturalism in
Contemporary Socities: Perspectives on Difference and Transdifference, Universitätsbund
Erlangen-Nürnberg e.V., Erlangen 2002, p. 91-123, here p.105
123
Cf. Strecker, David: Multikulturalismus, in: Göhler, Gerhard, Iser, Mattias, Kerner, Ina (ed.):
Politische Theorie, VS Verlag, Wiesbaden 2011, p. 257-272, here p. 262
124
Cf. Ibid., p. 264
195

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