United Arab Emirates Law and International Law
The United Arab Emirates is a state which has a rather complex legal system that is not always in complete agreement with international conventions and acts to which UAE is a party. In this paper, we will discuss how the conflicts between international and domestic legal acts are handled in UAE.
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It is important to understand the general structure of the domestic legal system of the United Arab Emirates before talking about its relationship to the international legal conventions.
The legal system of the UAE comprises both Sharia and laws of the European type; the latter refers to the French-like legal system consisting of codes, and not the British common law system. The structure of the legal system is described as complex; the Islamic law and civil laws (and the respective courts) function simultaneously but cover different legal areas (Khedr 2.1).
The domestic laws of the UAE may overlap with, and sometimes partially contradict, the international legal codes and conventions to which the UAE is a party. In cases of such overlaps and contradictions, the international laws and agreements usually take legal priority over the domestic ones, but this largely remains an unwritten principle (Briggs 107; Luttrell 156). For instance, even the Constitution of the United Arab Emirates does not contain specific rulings about this issue (Briggs 107).
On the other hand, some codes may include concrete directions regarding the issue; for instance, the Article 22 of the United Arab Emirates Civil Code of 1985 explains that the Code’s directions do not override contradicting directions of international conventions which are currently in force in the UAE (qtd. in Briggs 107).
And yet, because most other codes and legal documents do not contain specific instructions regarding this issue, Emirati courts may occasionally make decisions based on the domestic law rather than on the international regulations and agreements.
It is also interesting that in the UAE there are some domestic legal codes that run counter to some international conventions, but that were adopted at the time when these international conventions were already accepted by the state. For instance, the UAE Commercial Transactions Law (CTL) was adopted in 1993, and this law contains some contradictions to the Warsaw Convention of 1929 (as amended) despite the fact that the Convention was an accepted international statute in the UAE at the time of the adoption of CTL.
Even though CTL states that it must be used without prejudice to any accepted international conventions, there have been some court decisions according to which the provisions of CTL should override the Warsaw Convention (Briggs 108). Therefore, it is evident that the absence of a law which unequivocally establishes the priority of the international conventions over the domestic ones creates a loophole when out of some contradictory norms, a more “convenient” norm can be used.
It is also noteworthy that some procedures of legal modernization were initiated in the United Arab Emirates to adopt the Emirati laws to the international conventions; for instance, a project of creating an arbitration code was undertaken (Luttrell 139). Meanwhile, the arbitration is regulated by the Civil Procedure Code and some international agreements (Mohtashami, Birt and Rovinescu 2).
To sum up, when there is an overlap between the international and domestic laws in UAE, the priority is usually given to the international norms. However, the fact that there is no law in UAE which establishes the priority of one over the other creates loopholes that can be used to one of the conflicting sides’ “convenience.”
Vienna Conventions on Diplomatic Relations and Consular Relations
The Vienna Conventions on Diplomatic Relations (VCDR) (1961) and Consular Relations (VCCR) (1963) are international treaties that provide frameworks for international diplomatic and consular relationships between countries that are independent.
These treaties form the basis for modern international diplomatic and consular interactions, providing the diplomats and consuls with special status and granting them protection from various types of harassment from the host country. The treaties, naturally, contain certain important concepts, some of which will be discussed in this paper.
Both treaties provide a number of definitions in their first article (“Vienna Convention on Consular Relations” 2-3; “Vienna Convention on Diplomatic Relations” 2-3). The Article 1 of VCDR defines the concepts related to a diplomatic mission of a country and the personnel participating in this mission, which includes such notions as “the head of the mission,” “the members of the mission,” “the members of the staff of the mission,” etc. (“Vienna Convention on Diplomatic Relations” 2-3).
On the other hand, VCCR defines the concepts related to more local consular activity, as well as to the members of a consular mission, which includes notions such as “consular post,” “consular district,” “consular officer,” and so on (“Vienna Convention on Consular Relations” 2-3).
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Denza notes that previously to VCDR, there had been no internationally accepted terminology unequivocally differentiating between various members of the personnel of embassies (14). In some cases, this caused no problems, because all the members of the mission were treated equally; on the other hand, in other cases various issues would arise (Denza 14).
If no concrete, internationally accepted definitions existed for the diplomatic staff, it is clear that such definitions were also absent for consular personnel, because consulates are usually subordinate to embassies. Therefore, it is apparent that VCDR and VCCR provided a framework for standardization of international diplomatic relationships and added more clarity to these relationships.
On the other hand, both the VCDR and VCCR contain a number of concepts that are crucial for the diplomatic and consular missions but are not clearly defined in these treaties. Therefore, the meaning of these notions sometimes has to be understood from their contexts in the texts of the Conventions. Some of such important concepts are immunity, inviolability, etc. Let us compare the usage of these terms.
In the VCDR, the term “immunity” can be found in Articles 10, 27, 31, 32, 37, 38, 39, 40, 41, and 44 (“Vienna Convention on Diplomatic Relations” 5, 8-10, 12-14). The term can be understood from Article 31; here, “immunity” means that a diplomatic agent is not under the receiving state’s jurisdiction (for a diplomatic agent, this includes criminal, civil, and administrative jurisdictions).
In the VCCR, the term immunity can be found in Articles 15, 17, 24, 35, 43, 45, 53, 54, 55, 57, 58, 69-71 (“Vienna Convention on Consular Relations” 6, 9, 11, 15, 17-18, 21-24, 26-27).
In Article 43, it is identified as “immunity from jurisdiction,” similarly to VCDR; however, while a consular officer is not “amenable to the jurisdiction of the judicial or administrative authorities of the receiving State” with regards to their consular functions, this does not work for certain civil actions of the consular officer (“Vienna Convention on Consular Relations” 17).
Therefore, in both cases the term “immunity” means protection from the receiving state’s jurisdiction, but for the members of diplomatic missions, these protections are stronger than for members of consular personnel.
The term “inviolability” is also used in a number of places in both texts. In VCDR, according to Articles 22 and 30, inviolability means that the premises of the mission or the residences of a diplomatic agent cannot be entered by the members of the receiving state, unless the head of the mission or the diplomatic agent allow it, respectively; Articles 24 and 27 protect the documents and the correspondence of the mission; Articles 27 and 29 protect diplomatic couriers and agents, who cannot be arrested or detained (“Vienna Convention on Diplomatic Relations” 7-9).
In VCCR, Article 31 provides the inviolability of the consular premises, Articles 33 and 61 give the same to the consular archives and documents, Article 35 supplies the same for the consular correspondence and the consular courier, and Article 41 provides the inviolability of consular officers (“Vienna Convention on Consular Relations” 13-14, 17, 25).
In short, the concept of “inviolability” means the same three things in both treatises: either that people (diplomatic agents, consuls, or consular couriers) cannot be arrested or detained in any way, or that territories related to missions cannot be entered without a permission, or that documents and correspondence belonging to the missions cannot be read, confiscated, or used in any way by the representatives of the receiving state.
The major difference, however, is that the head of the diplomatic mission can give permission to enter the consular premises – see Article 31 of VCCR (“Vienna Convention on Consular Relations” 13).
The term “reciprocity” is used neither in VCDR nor in VCCR, whereas some other similar terms are also used in close meanings.
To sum up, both the VCDR and VCCR provide definitions of the terms used to denote the members of the respective missions, the related personnel, and the related territories. On the other hand, there are also concepts for which there are no clear definitions provided. However, these terms have the same or a very close meaning; it appears obvious that attempts have been made to make the usage of these words similar.
Briggs, Richard. “Status of International Conventions as against UAE Domestic Statutes.” Arab Law Quarterly 18.1 (2003): 107-108. EBSCOhost. Web.
Denza, Eileen. Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations. 4th ed. 2016. Oxford, United Kingdom: Oxford University Press. Google Books. Web.
Khedr, Ahmed Aly. Update: Overview of United Arab Emirates Legal System. 2014. Web.
Luttrell, S. R. “The Changing Lex Arbitri of the UAE.” Arab Law Quarterly 23.2 (2009): 139-166. EBSCOhost. Web.
Mohtashami, Reza, Antonia Birt and Lee Rovinescu. Arbitration Guide, IBA Arbitration Committee: United Arab Emirates. 2013. PDF file. Web.
Vienna Convention on Consular Relations, 1963. 2005. PDF file. Web.
Vienna Convention on Diplomatic Relations, 1961. 2005. PDF file. Web.