INTRODUCTION

In this chapter, the Dutch and English legal frameworks relevant to forced marriages are discussed, starting with the former. Forced marriages have been on the Dutch political agenda since 2005 and the wish to tackle this issue has resulted in several legal amendments. In 2009, the Dutch government drafted a broad set of measures for the purpose of combating the problems associated with protracted integration and emancipation of family migrants. These measures include changes in the civil and criminal law pertaining to polygamy, forced marriage, marriages between cousins and raising the minimum age for marriage in private international law. Forced marriage was also included in the Public Prosecution Service Instruction on domestic violence and honour related violence, in the sense that the Public Prosecution Service (PPS) will have to act pursuant to this instruction if forced marriage or abandonment are in any way connected with honour-related offences. In 2012, after looking into the possibilities of creating a separate offence of forced marriage, the Dutch government decided against separate criminalisation and instead presented a twoiyear action plan concerning the prevention of forced marriages, containing a set of preventative measures, mainly aiming at providing information, raising awareness and training professionals.

This chapter first describes the civil law remedies in detail. Next, other remedies that can be used to tackle forced marriages are briefly examined, including remedies that have their basis in administrative law. The focus is then directed towards criminal law: which crimes are relevant in cases of forced marriage and what amendments did the government propose in response to the call for the creation of a distinct offence of forced marriage?

The second part of this chapter describes the English legal framework in the context of the practice of forced marriage. English courts have quite a long history when it comes to dealing with cases of forced marriage, but the phenomenon entered the political limelight only relatively recently. In the late 1990s, several high profile cases attracted media attention and outraged the British public, causing two Members of Parliament to place the issue of forced marriage on the political agenda.

PATENTS – ACCESS: INTERFERENCE

Poor patients worldwide continue to face difficulties in obtaining or purchasing essential medicines because of scarce availability and high prices. The focus of this research is the interface between patent and human rights law with regard to access to essential medicines in the context of developing countries. The argument often made in that regard is that patents negatively impact patients’ access to medicines as patent protection for medicines results in higher prices. Therefore, before turning to the examination of the relationship of patent protection for medicines and access to such medicines, a preliminary question had to be asked:

Access in the context of this research entails that medicines are available, physically accessible and affordable on a non-discriminatory basis (in addition to being culturally acceptable and of good quality). The focus here is on the element of “affordability” of essential medicines within a developing country context. Namely, for (developing) countries operating in a resource constrained setting it is a continuous struggle to find and allocate the resources necessary to maintain and improve the public health care system and, as a result of inadequate public health systems, many patients in developing countries are forced to privately finance medicine use. Moreover, it is especially developing countries with poor public health systems which suffer disproportionately from widespread public health problems such as HIV/AIDS, tuberculosis and malaria and a systematic lack of access to affordable medicines. It is therefore crucial that developing countries ensure that medicine prices are as low as is realistically possible.

Both economic theory (the fact that patent protection in the majority of situations leads to a monopoly position) and a number of empirical studies find that in general patent protection for medicines go hand-in-hand with higher medicine prices. Consequently, patent protection for medicines may interfere with access to such medicines. These higher prices are then argued, particularly by the pharmaceutical industry, to be justified due to the fact that patents are essential in order to enable pharmaceutical corporations to recoup their substantial research and development costs; without patent protection companies would have no incentive to invest in innovation.

INTRODUCTION

None of the statutes of any of the international(ised) courts or tribunals specifically list the act of forced marriage as a crime against humanity, a war crime or an act of genocide. The offence was first explicated in the case law of the SCSL in 2004, when the Prosecutor of that court encountered the phenomenon of ‘bush wives’ during his investigations into the atrocities committed during the civil war in Sierra Leone. The Trial Chamber granted the Prosecutor leave to add a new count of ‘other inhumane acts’ (Article 2(i) SCSL Statute) pertaining to the offence of forced marriage to the indictments in two cases (against former AFRC and RUF leaders), but dismissed the Prosecutor's motion for leave to amend the indictment in the case against two former CDF leaders in a similar manner. As a result, the Trial Chamber could hear evidence supporting forced marriage as a (new) crime against humanity, which, for the first time in the history of international criminal law, opened the door for the prosecution of the crime of forced marriage as a crime against humanity. In subsequent SCSL judgements, the crime of forced marriage was defined, but this did not happen without problems or disagreements.

Paragraph 2 will discuss and evaluate in detail the proceedings before the SCSL Trial Chambers and Appeals Chamber in the AFRC, RUF and Taylor cases. The second part of this chapter focuses on the Extraordinary Chambers in the Courts of Cambodia (ECCC). Forced marriage is charged as an ‘other inhumane act’ in the case that is commonly referred to as Case 002. When the proceedings in this case commenced, in 2007, there was no indication that this case would take longer than the average international criminal case to complete. However, the proceedings continue to drag on and are marked by delay upon delay. At the time of writing (January 2014), there was not a single (trial) judgement in Case 002. As a result, there is no relevant case law to discuss and analyse. Only the pre-trial proceedings offer some insight into the offence of forced marriage within the legal framework of the ECCC. They are briefly addressed in paragraph 3.

INTRODUCTION

All is fair in love and war. This statement still seems to be true today. In conflict situations, the taking of brides by the victor is a common occurrence. Through the years, many conflicts around the world have been marked by the abduction of women and girls who were forced into what is generally referred to as ‘marriages’ with their captors. There are reports of forced marriages taking place during the conflicts in inter alia Afghanistan, Angola, Cambodia, the Democratic Republic of Congo, East Timor, Guatemala, Kashmir, Liberia, Mozambique, Myanmar, Peru, Rwanda, Sierra Leone, Somalia, Sudan (Darfur), and Uganda. This chapter focuses on the phenomenon of forced marriages in the situations that have been or are being tried before the ICTY, ICTR, ICC, SCSL and ECCC with an emphasis on the forced marriages that took place during the civil war in Sierra Leone and under the Khmer Rouge in Cambodia. As was stated in the General Introduction, this book focuses on these two situations because of the high prevalence of forced marriage during the two conflicts. In addition, the conflict of Sierra Leone was chosen because it resulted in the first case law concerning the act of forced marriage under international criminal law.

In this chapter, first, acts of forced marriage during the Rwandan genocide and the conflicts in the former Yugoslavia are discussed. The third paragraph focuses on situations currently before the ICC. The practice of forced marriage was (or is) prevalent to some extent in all situations, but in some more than in others. The conflict in Uganda is especially infamous for the high number of child abductions coupled with forced marriages and this particular topic has been well-documented. Therefore, paragraph 3 will mainly focus on Uganda. The situations in other countries under investigation by the ICC are briefly discussed, mainly for the practical reason that there is little information on (the prevalence of) forced marriages taking place in those situations.

INTRODUCTION

This chapter addresses the interface between international trade law and intellectual property law with international human rights law in the context of patent protection for pharmaceuticals and a right of access to medicines. The issue of access to medicines sits on the cross-point between the three systems and is one illustrative example of how these systems interact. The starting point for this discussion is that international trade law (which includes patents) can have significant benefits for the protection and promotion of human rights. This thesis adopts a legal approach to assess how international patent law and international human rights law interact in order to determine potential conflicts between both systems. It must be recognised however, that the debate takes place against the background of broader social, economic and political discussions.

International trade law and intellectual property law have historically been isolated from international human rights law. Human rights have not been very prominent in the World Trade Organisation. For a long time, international trade law was considered a very technical subject dealing with mainly economic analysis and beyond the scope of general international lawyers. Furthermore, some of the members within the WTO political bodies have shown concern in including human rights within WTO deliberations. In that sense the debate within the WTO on the possible impact of intellectual property rights on access to medicines, which resulted in the 2001 Doha Declaration on TRIPS and Public Health and a proposed amendment to the TRIPS Agreement, is remarkable in that it, although not explicitly, addresses human rights concerns within the WTO framework. See for example the debate preceding the adoption of the Doha Declaration in which a number of WTO members, mainly developing members, refer to the right of access to medicines, the right to health and the right to life as the context for the discussion of TRIPS and public health. Consequently it is only in the last decade and a half that the links between human rights and international trade are being fully recognised.

INTRODUCTION

Before going into the issue of forced marriages in times of peace and conflict, it is important to first understand what ‘marriage’ and ‘force’ exactly entail. Only after taking careful cognisance of these concepts is it possible to start dissecting the phenomenon of forced marriage. To this end, this chapter provides the book's conceptual framework. First, the concept of marriage is elucidated and with the help of sociological definitions, a universally applicable definition of marriage is formulated (paragraph 2). In paragraph 3, several universal and regional human rights instruments are analysed. As a direct consequence of the Nazi racial laws prohibiting mixed marriages between certain ethnic groups and the injustices committed under the veil of marriage during the Second World War – such as child marriages and marriage as a cover for slavery – the international community saw fit to formulate marriage as a human right. By including the right to marry in the 1948 Universal Declaration of Human Rights (UDHR), the international community gave expression to the importance of this institution and its central position in society. An entire gamut of international human rights treaties now contain provisions on the right to marry and on the equality between men and women during every stage of the marriage. After discussing these instruments, the concepts of coercion and consent are explored. Finally, in paragraph 4, a working definition of forced marriage is presented; if necessary, this working definition will be revised after the description and discussion of the practice of forced marriage as it takes place in times of peace and conflict (Chapters 2 and 3). A separate sub-paragraph is devoted to the practice of arranged marriages. Paragraph 5 contains some concluding remarks.

MARRIAGE

THE SOCIOLOGY OF MARRIAGE

Marriage as a way of organising life and formalising relationships has existed as a social institution in all societies throughout history. Throughout recorded history, marriage has been the main vehicle by which (private) property was exchanged and handed down to new generations, and by which sexual relationships and the position of children in society were regulated.

INTRODUCTION

The central question of this research revolves around criminalisation of forced marriage: should this practice be criminalised, and, if so, how? Should it be prohibited as a distinct, separate offence, or under the heading of (generic) existing crimes? Decisions regarding criminalisation are, for a large part, based on policy choices and political considerations, and are therefore dependent on the political hue of the incumbent government. For example, in the Netherlands, (criminal) law was traditionally used more or less exclusively as an instrument of ‘codification’, that is to say as a means to record existing moral views. However, as a result of the development of Dutch society from a welfare state into a security state, coupled with the growing influence of populism, (criminal) law is increasingly used as an instrument of ‘modification’, i.e. as a means to change views and behaviour in society. This has led to a trend of increased willingness to penalise and thus to a proliferation of criminal offences. The same can be said for England, indeed, it has been stated that Anglo-American jurisdictions in general create offences in a casual and routine manner.

Yet irrespective of the highly political nature of criminalisation, certain guidelines can be distilled from legal doctrine. The issue of criminalisation has exercised and still exercises many minds and the question of what justifies criminal prohibition has inspired lawyers and philosophers to fill reams upon reams of paper, exploring the conditions that must be satisfied before the state may proscribe certain behaviour, thereby subjecting the culpable offender to criminal liability and (subsequently) punishment. Throughout the years, different theories of criminalisation have been articulated. There are clear similarities between these theories, which, for a large part, build on each other. As De Hullu – one of the leading Dutch criminal law scholars – noted, what most theories have in common is that they require that the necessity and added value of criminalisation must be demonstrated, either from a practical or from an ideological or legal theoretical point of view.

DENKSCHRIFT

ALLGEMEINES

AUSGANGSSITUATION

Ehen mit Auslandsberührung sind weit verbreitet. Im Jahr 2009 hatten bei 13 Prozent der in Deutschland lebenden Ehepaare entweder beide Ehegatten eine ausländische oder ein Ehegatte eine deutsche, der andere Ehegatte eine ausländische Staatsangehörigkeit. Hinzu kommen deutsche Ehepaare, die im Ausland leben, sowie ausländische Ehepaare, die in der Bundesrepublik Deutschland leben. Da sich die rechtlichen Folgen der Ehe unter anderem nach der Staatsangehörigkeit richten, können Ehen mit Auslandsbezug zu rechtlichen Schwierigkeiten, insbesondere im Hinblick auf güterrechtliche Fragen führen. Gesetzlicher Güterstand in der Bundesrepublik Deutschland ist die Zugewinngemeinschaft. Die Vermögen der Ehegatten bleiben getrennt, nur am Ende des Güterstandes - etwa wegen Scheidung - wird der in der Ehe erwirtschaftete Zugewinn ausgeglichen. Gesetzlicher Güterstand in der Französischen Republik ist die Errungenschaftsgemeinschaft. Errungenschaften während der Ehe werden zum gemeinsamen Vermögen. Lebt zum Beispiel ein Paar in der Errungenschaftsgemeinschaft nach französischem Recht in der Bundesrepublik Deutschland, so zeigen sich Probleme, wenn die Ehegatten in diesem Güterstand ein Grundstück in der Bundesrepublik Deutschland erwerben. Da der französische Güterstand in der Regel in der Bundesrepublik Deutschland nicht bekannt ist, führt zum Beispiel die präzise Einschätzung der Tragweite der den einzelnen Eheleuten zustehenden Rechte bei Eintragung eines Eigentumsrechts in das Grundbuch zu erheblichen Unsicherheiten. Für ein deutsches Kreditinstitut ist insbesondere fraglich, welche Auswirkungen Verbindlichkeiten eines Ehegatten oder seine Insolvenz auf das in der Errungenschaftsgemeinschaft gebundene Vermögen haben. Die praktisch haufig anzutreffende Lösung, dass für in der Bundesrepublik Deutschland belegenes Vermögen gemäß Artikel 15 Absatz 2 EGBGB deutsches Güterrecht gewählt wird, beantwortet zwar diese Frage, mutet den Ehegatten aber einen gespaltenen Güterstand zu, der bei einem güterrechtlichen Ausgleich zu Abrechnungs-schwierigkeiten führen kann. Ähnliche Probleme werden deutsche Paare in der Französischen Republik angesichts der gänzlich anderen Traditionen vorfinden. Auch in den anderen Ländern der Europäischen Union ist das Eherecht national sehr unterschiedlich ausgestaltet.

Angesichts dieser Situation besteht ein Bedürfnis, international möglichst vergleichbare oder identische Regelungen zu schaffen, die den Betroffenen Rechtsklarheit und Rechtssicherheit bieten. Auf europäischer Ebene wird daher nach gemeinsamen Antworten auf die Fragen gesucht, welches nationale Recht bei Ehen mit Auslandsberührung Anwendung findet und welche Gerichte zuständig sind. Hingegen steht eine inhaltliche Angleichung des Familienrechts in den Mitgliedstaaten aufgrund von unterschiedlichen, haufig in Jahrhunderten gewachsenen und tief in der Bevölkerung verwurzelten Rechtstraditionen derzeit nicht auf der europäischen Agenda.

MEMORANDUM

GENERAL SECTION

BACKGROUND

International marriages are commonplace. In 2009 in 13% of the married couples living in Germany one or both spouses were foreign nationals. In addition, there are German couples living abroad and foreign couples living in Germany. Since the legal consequences of a marriage vary according to, among other things, the spouses’ citizenship, international marriages may lead to legal difficulties, in particular with respect to property issues. The statutory matrimonial property regime in the Federal Republic of Germany is the community of accrued gains. The assets of the spouses remain separate and the gains accrued during the marriage are settled only at the termination of the property regime, e.g. in the case of divorce. The statutory matrimonial property regime in the French Republic is the community of acquisitions, under which all assets acquired during the marriage become common property. Given these divergent matrimonial property regimes, problems may arise. For example, if a couple lives in Germany under the community of property regime in accordance with French law and they acquire a plot of land in the Federal Republic of Germany. Since this French property regime is not generally known in German law, the precise valuation of the scope of each spouse's rights in the registration of a property right in the Land Register, for example, may lead to considerable uncertainties. For a German bank, the consequences of the liabilities of one spouse or his or her insolvency on the assets subject to community of property are particularly uncertain. The prevailing practical solution of choosing a German matrimonial property regime for assets situated in the Federal Republic of Germany in accordance with Article 15(2)(3) of the German Einführungsgesetz zum Bürgerlichen Gesetzbuch ('EGBGB’) solves these problems, but imposes a split matrimonial regime which might bring about other problems in the calculation of the debt on the accrued gains. German couples may encounter similar problems in the French Republic, given the completely different traditions. Marriage law also varies considerably in the other states of the European Union. This situation gives rise to the need to create provisions at an international level which are identical, or as closely comparable as possible, in order to provide the parties involved with legal clarity and certainty.

European family law can be a fascinating topic. The family law of each Member State is different, and it is a challenge in Europe to try to use the law to achieve practical solutions to the problems encountered by national and transnational couples. The solutions proposed should also be regarded as providing guidance and helping to resolve future issues.

The genesis of this book lies in a project regarding property relations between spouses, which was presented for the first time at the Tagung der Wissenschaft-lichen Vereinigungfür das Familienrecht in Potsdam, Germany.

The Franco-German Agreement on the establishment of an optional matrimonial property regime, which became law in both countries in 2013, is the first attempt at unifying substantive matrimonial property law in Europe. The innovations included in the Agreement maybe useful for the adoption of the same instrument in different states.

This study promotes the spread of the Franco-German regime on a European and international level. The Agreement's added advantage is to offer a joint instrument that does not require the parties to give up their domestic laws. The contents and specifics of the joint optional property regime can be better understood by comparison with domestic regulations in France and Germany. The importance of this is showcased through a comparison of German, Swiss, Italian and Dutch matrimonial property regimes.

Due to the increasing mobility of persons within the European Union it is considered desirable that other Member States accede to the Agreement. To promote this, the book provides a short commentary on the law, accurate and timely translations of the normative text, the memoranda and explanatory reports, as well as the German implementing legislation, in English, Italian and Spanish.

The book is, in a broad sense, also intended to assist lawyers in helping spouses to enter into matrimonial agreements. It will also be of considerable interest to policy-makers and economists concerned with family law. European family law can also be an enjoyable and rewarding topic to study and I hope this book will be useful, not only in revision and in question-answering techniques, but also in providing students with enthusiasm for the subject.

MOTIVAZIONI

PARTE GENERALE

SITUAZIONE INIZIALE

I matrimoni con elementi di internazionalità sono molto diffusi. Nel 2009, nel 13% ca. delle coppie di coniugi residenti in Germania, entrambi i coniugi avevano la cittadinanza straniera oppure un coniuge aveva la cittadinanza tedesca e l'altro una cittadinanza straniera. A ciò si aggiungono le coppie tedesche che vivono all'estero e le coppie straniere che vivono nella Repubblica Federale Tedesca. Poichè gli effetti giuridici del matrimonio dipendono, tra l'altro, dalla cittadinanza, i matrimoni tra cittadini di diversi Stati possono comportare difficolta giuridiche, in particolare, con riferimento alle questioni patrimoniali. Nella Repubblica Federale Tedesca il regime legale dei beni è la comunione degli incrementi. I patrimoni dei coniugi rimangono separati e solo alla cessazione del regime dei beni - per esempio a causa di divorzio - viene compensato l'incremento patrimoniale prodotto in costanza di matrimonio. Nella Repubblica Francese il regime legale dei beni è la comunione dei beni limitata agli acquisti. Gli acquisti in costanza di matrimonio costituiscono patrimonio comune. Se, per esempio, una coppia vive in Germania in comunione limitata agli acquisti, secondo il diritto francese, sorgono dei problemi qualora i coniugi, in tale regime dei beni, acquistino un immobile nella Repubblica Federale Tedesca. Poiché il regime dei beni francese, di regola, non è conosciuto nella Repubblica Federale Tedesca, la precisa valutazione della portata dei diritti spettanti in capo ai singoli coniugi al momento della trascrizione di un diritto di proprietà nel libro fondiario conduce, per esempio, a considerevoli incertezze. Per un istituto di credito tedesco è particolarmente dubbio quali conseguenze abbiano i vincoli obbligatori o l'insolvenza di un coniuge sul patrimonio vincolato nella comunione degli acquisti. La soluzione spesso rinvenibile nella pratica, secondo cui i coniugi ai sensi dell'art. 15, comma 2, EGBGB scelgono il regime dei beni tedesco per i patrimoni situati nella Repubblica Federale Tedesca, risponde certamente a questa domanda, ma impone una scissione del regime dei beni che può condurre a difficolta di calcolo nel caso di un conguaglio patrimoniale. In considerazione di tradizioni del tutto differenti, le coppie tedesche in Francia incontrano problemi analoghi.