International Law and Islamic Law

The Library of Essays in International Law

Series Editor: Robert McCorquodale

Titles in the Series:

In te rn a tio n a l L aw o f H u m an R ights In te rn a tio n a l C rim es

Michael K. Addo Nikos Passas

In te rn a tio n a l L aw and Indigenous Peoples In te rn a tio n a l E n v iro n m en tal L aw

S. James Anaya Volumes I and II
Paula M. Pevato
In te rn a tio n a l L aw and Islam ic L aw
MashoodA. Baderin S tate R esponsibility in In te rn a tio n a l L aw
René Provost
T he In te rn a tio n a l C rim in al C o u rt
Olympia Bekou and Robert Cryer Ju risd ictio n in In te rn a tio n a l L aw
Michael Reisman
D em ocracy and In te rn a tio n a l L aw
Richard Burchill Title to T errito ry
Malcolm N. Shaw
L aw of the Sea
Hugo Caminos T he N atu re of In te rn a tio n a l L aw
Gerry Simpson
T he L aw o f T reaties
Scott Davidson C ollective Security L aw
Nigel D. White
H u m a n ita ria n L aw
Judith Gardam

In te rn a tio n a l Econom ic R egulation

Jane Kelsey

In te rn a tio n a l O rganizations
Jan Klabbers

In te rn a tio n a l P eacekeeping
Boris Kondoch

Sources of In te rn a tio n a l L aw
Martti Koskenniemi

In te rn a tio n a l R efugee L aw
Hélène Lambert

Space L aw
Francis Lyall and Paul B. Larsen

Self-D eterm ination in In te rn a tio n a l L aw

Robert McCorquodale

In te rn a tio n a l D ispute Settlem ent

Mary Ellen O ’Connell
International Law and Islamic
Law

Edited by

Mashood A. Baderin
School o f Oriental and African Studies, University o f London, UK
First published 2008 by Ashgate Publishing

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British Library Cataloguing in Publication Data

International law and Islamic law. - (The library of essays
in international law)
1. International law (Islamic law)
I. Baderin, Mashood A.
340.5'9

Library of Congress Control Number: 2007931381

ISBN 9780754627159 (hbk)

Contents

A cknowl edgem ents ix

Series Preface xi
Introduction xiii

PART I GENERAL PRINCIPLES OF INTERNATIONAL LAW

1 Majid Khadduri (1956), ‘Islam and the Modem Law of Nations’, The American
Journal o f International Law, 50, pp. 358-72. 3
2 Christopher A. Ford (1995), 4Siyar-ization and Its Discontents: International
Law and Islam’s Constitutional Crisis’, Texas International Law Journal, 30,
pp. 499-533. 19
3 Ali Ahmad (2001), ‘The Role of Islamic Law in the Contemporary World Order’,
The Journal o f Islamic Law and Culture, 6, pp. 157-71. 55
4 Abdullahi Ahmed An-Na’im (2004), ‘Islam and International Law: Toward a
Positive Mutual Engagement to Realize Shared Ideals’, American Society o f
International Law Proceedings, pp. 159-66. 71
5 Sheikh Wahbeh al-Zuhili (2005), ‘Islam and International Law’, International
Review o f the Red Cross, 87, pp. 269-83. 79

PART II INTERNATIONAL USE OF FORCE

6 Asma Afsaruddin (2007), ‘Views of Jihad Throughout History’, Religion

Compass, 1, pp. 165-9. 97
7 Said Mahmoudi (2005), ‘The Islamic Perception of the Use of Force in the
Contemporary World’, Journal o f the History ofInternational Law, 7, pp. 55-68. 103
8 Sohail H. Hashmi (2003), ‘Is There an Islamic Ethic of Humanitarian
Intervention?’, in Anthony F. Lang, Jr (ed.), Just Intervention, Washington DC:
Georgetown University Press, pp. 62-83. 117

PART III INTERNATIONAL HUMANITARIAN LAW

9 Karima Bennoune (1994), ‘As-Salāmu'Alaykum? Humanitarian Law in Islamic

Jurisprudence’, Michigan Journal o f International Law, 15, pp. 605^13. 141
10 James Cockayne (2002), ‘Islam and International Humanitarian Law: From a
Clash to a Conversation between Civilizations’, International Review o f the
Red Cross, 84, pp. 597-626. 181
vi International Law and Islamic Law

PART IV INTERNATIONAL TERRORISM

11 T.R. Copinger-Symes (2003), ‘Is Osama bin Laden’s “Fatwa Urging Jihad
Against Americans” dated 23 February 1998 Justified by Islamic Law?’, Defence
Studies, 3, pp. 44-65. 213
12 Katerina Dalacoura (2002), 4Violence, September 11 and the Interpretations of
Islam’, International Relations, 16, pp. 269-73. 235

PART V INTERNATIONAL PRO TECTION OF DIPLOMATS

13 M. Cherif Bassiouni (1980), ‘Protection of Diplomats under Islamic Law’, The

American Journal o f International Law, 74, pp. 609-33. 243

PART VI INTERNATIONAL ENVIRONMENTAL AND WATER LAW

14 Lisa Wersal (1995), ‘Islam and Environmental Ethics: Tradition Responds to

Contemporary Challenges’, Zygon, 30, pp. 451-9. 271
15 Thomas Naff and Joseph Dellapenna (2002), ‘Can there be Confluence? A
Comparative Consideration of Western and Islamic Fresh Water Law’,
Water Policy, 4, pp. 65-89. 281

PART VII UNIVERSALITY OF HUMAN RIGHTS

16 Bassam Tibi (1994), ‘Islamic LawIShari’a, Human Rights, Universal Morality

and International Relations’, Human Rights Quarterly, 16, pp. 277-99. 309
17 Heiner Bielefeldt (1995), ‘Muslim Voices in the Human Rights Debate’, Human
Rights Quarterly, 17, pp. 587-617. 333
18 Jason Morgan-Foster (2003), ‘A New Perspective on the Universality Debate:
Reverse Moderate Relativism in the Islamic Context’, International Law Students
Association Journal o f International and Comparative Law, 10, pp. 35-67. 365
19 Abdullahi A. An-Na’im (2000), ‘Islam and Human Rights: Beyond the
Universality Debate’, American Society o f International Law Proceedings, 94,
pp. 95-101. 399

PART V III W OM EN’S RIGHTS

20 Rebecca Barlow and Shahram Akbarzadeh (2006), ‘Women’s Rights in the

Muslim World: Reform or Reconstruction?’, Third World Quarterly, 27,
pp. 1481-94. 411
 International Law and Islamic Law vii

21 Shaheen Sardar Ali (1998), ‘Women’s Human Rights in Islam: Towards a Theoretical
Framework’, Yearbook o f Islamic and Middle Eastern Law (1997-1998), 4,
pp. 117-52. 425
22 Niaz A. Shah (2006), ‘Women’s Human Rights in the Koran: An Interpretive
Approach’, Human Rights Quarterly, 28, pp. 868-903. 461

PART IX RIGHTS OF THE CHILD

23 Safir Syed (1998), ‘The Impact of Islamic Law on the Implementation of the
Convention on the Rights of the Child: The Plight of non-Marital Children under
Shari’a’, The International Journal o f Children’s Rights, 6, pp. 359-93. 499
24 Kamran Hashemi (2007), ‘Religious Legal Traditions, Muslim States and
the Convention on the Rights of the Child: An Essay on the Relevant UN
Documentation’, Human Rights Quarterly, 29, pp. 194-227. 535

PART X RIGHTS OF RELIGIOUS M INORITIES

25 Javaid Rehman (2000), ‘Accommodating Religious Identities in an Islamic State:

International Law, Freedom of Religion and the Rights of Religious Minorities’,
International Journal on Minority and Group Rights, 7, pp. 139-65. 571
26 Mohamed Berween (2006), ‘Non-Muslims in the Islamic State: Majority Rule
and Minority Rights’, The International Journal o f Human Rights, 10, pp. 91-102. 599

PART XI STATE PRACTICE

27 Shadi Mokhtari (2004), ‘The Search for Human Rights Within an Islamic
Framework in Iran’, The Muslim World, 94, pp. 469-79. 613
28 Mashood A. Baderin (2001), ‘A Macroscopic Analysis of the Practice of Muslim
State Parties to International Human Rights Treaties: Conflict or Congruence?’,
Human Rights Law Review, 1, pp. 265-303. 625

Name Index 665

Acknowledgements

The editor and publishers wish to thank the following for permission to use copyright
material.

Blackwell Publishing for the essays: Asma Afsaruddin (2007), 4Views of Jihad Throughout
History’, Religion Compass, 1, pp. 165-9; Lisa Wersal (1995), ‘Islam and Environmental
Ethics: Tradition Responds to Contemporary Challenges’, Zygon, 30, pp. 451-9; Shadi
Mokhtari (2004), ‘The Search for Human Rights Within an Islamic Framework in Iran’, The
Muslim World, 94, pp. 469-79.

Brill for the essay: Shaheen Sardar Ali (1998), ‘Women’s Human Rights in Islam: Towards a
Theoretical Framework’, Yearbook o f Islamic and Middle Eastern Law (1997-1998), 4, pp.
117-52.

Copyright Clearance Center for the essays: Majid Khadduri (1956), ‘Islam and the Modem Law
of Nations’, The American Journal o f International Law, 50, pp. 358-72; Abdullahi Ahmed
An-Na’im (2004), ‘Islam and International Law: Toward a Positive Mutual Engagement to
Realize Shared Ideals’, American Society o f International Law Proceedings, pp. 159-66; Said
Mahmoudi (2005), ‘The Islamic Perception of the Use of Force in the Contemporary World’,
Journal o f the History o f International Law, 7, pp. 55-68. Copyright © 2005 Koninklijke,
Brill, NV; Karima Bennoune (1994), ‘As-Salāmu 'Alaykum? Humanitarian Law in Islamic
Jurisprudence’, Michigan Journal o f International Law, 15, pp. 605^13; M. Cherif Bassiouni
(1980), ‘Protection of Diplomats under Islamic Law’, The American Journal o f International
Law, 74, pp. 609-33; Abdullahi A. An-Na’im (2000), ‘Islam and Human Rights: Beyond the
Universality Debate’, American Society o f International Law Proceedings, 94, pp. 95-101;
Safir Syed (1998), ‘The Impact of Islamic Law on the Implementation of the Convention on
the Rights of the Child: The Plight of non-Marital Children under Shari’a’, The International
Journal o f Children’s Rights, 6, pp. 359-93. Copyright © 1998 Kluwer Law International.
Javaid Rehman (2000), ‘Accommodating Religious Identities in an Islamic State: International
Law, Freedom of Religion and the Rights of Religious Minorities’, International Journal on
Minority and Group Rights, 7, pp. 139-65. Copyright © 2000 Kluwer Law International.

Georgetown University Press for the essay: Sohail H. Hashmi (2003), ‘Is There an Islamic
Ethic of Humanitarian Intervention?’, in Anthony F. Lang, Jr (ed.), Just Intervention,
Washington DC: Georgetown University Press, pp. 62-83. Copyright © 2003 Georgetown
University Press, www.press.georgetown.edu

International Review of the Red Cross for the essays: Sheikh Wahbeh al-Zuhili (2005),
‘Islam and International Law’, International Review o f the Red Cross, 87, pp. 269-83; James
Cockayne (2002), ‘Islam and International Humanitarian Law: From a Clash to a Conversation
between Civilizations’, International Review o f the Red Cross, 84, pp. 597-626.
X International Law and Islamic Law

The Johns Hopkins University Press for the essays: Bassam Tibi (1994), ‘Islamic Law/Shari ’a,
Human Rights, Universal Morality and International Relations’, Human Rights Quarterly, 16,
pp. 277-99. Copyright © 1994 The Johns Hopkins University Press; Heiner Bielefeldt (1995),
‘Muslim Voices in the Human Rights Debate’, Human Rights Quarterly, 17, pp. 587-617.
Copyright © 1995 The Johns Hopkins University Press; Niaz A. Shah (2006), ‘Women’s
Human Rights in the Koran: An Interpretive Approach’, Human Rights Quarterly, 28, pp.
868-903. Copyright © 2006 The Johns Hopkins University Press; Kamran Hashemi (2007),
‘Religious Legal Traditions, Muslim States and the Convention on the Rights of the Child:
An Essay on the Relevant UN Documentation’, Human Rights Quarterly, 29, pp. 194-227.
Copyright © 2007 The Johns Hopkins University Press.

Journal of International and Comparative Law for the essay: Jason Morgan-Foster (2003),
‘A New Perspective on the Universality Debate: Reverse Moderate Relativism in the Islamic
Context’, International Law Students Association Journal o f International and Comparative
Law , 10, pp. 35-67.

Oxford University Press for the essay: Mashood A. Baderin (2001), ‘A Macroscopic Analysis
of the Practice of Muslim State Parties to International Human Rights Treaties: Conflict or
Congruence?’, Human Rights Law Review , 1, pp. 265-303.

Sage Publications for the essay: Katerina Dalacoura (2002), ‘Violence, September 11 and the
Interpretations of Islam’, International Relations, 16, pp. 269-73. Copyright © 2002 Sage
Publications.

Taylor & Francis Ltd for the essays: T.R. Copinger-Symes (2003), ‘Is Osama bin Laden’s
“Fatwa Urging Jihad Against Americans” dated 23 February 1998 Justified by Islamic Law?’,
Defence Studies, 3, pp. 44-65; Rebecca Barlow and Shahram Akbarzadeh (2006), ‘Women’s
Rights in the Muslim World: Reform or Reconstruction?’, Third World Quarterly, 27, pp.
1481-94. Copyright © 2006 Third World Quarterly; Mohamed Berween (2006), ‘Non-
Muslims in the Islamic State: Majority Rule and Minority Rights’, The International Journal
o f Human Rights, 10, pp. 91-102. http://www.tandf.co.uk/joumals

Every effort has been made to trace all the copyright holders, but if any have been inadvertently
overlooked the publishers will be pleased to make the necessary arrangement at the first
opportunity.
Series Preface

Open a newspaper, listen to the radio or watch television any day of the week and you will read
or hear of some matter concerning international law. The range of matters include the extent to
which issues of trade and human rights should be linked, concerns about refugees and labour
conditions, negotiations of treaties and the settlement of disputes, and decisions by the United
Nations Security Council concerning actions to ensure compliance with international law.
International legal issues have impact on governments, corporations, organisations and people
around the world and the process of globalisation has increased this impact. In the global legal
environment, knowledge of international law is an indispensable tool for all scholars, legal
practitioners, decision-makers and citizens of the 21st century.
The Library o f Essays in International Law is designed to provide the essential elements
for the development of this knowledge. Each volume contains essays of central importance
in the development of international law in a subject area. The proliferation of legal and other
specialist journals, the increase in international materials and the use of the internet, has meant
that it is increasingly difficult for legal scholars to have access to all the relevant articles on
international law and many valuable older articles are now unable to be obtained readily.
These problems are addressed by this series, which makes available an extensive range of
materials in a manner that is of immeasurable value for both teaching and research at all
levels.
Each volume is written by a leading authority in the subject area who selects the articles and
provides an informative introduction, which analyses the context of the articles and comments
on their significance within the developments in that area. The volumes complement each
other to give a clear view of the burgeoning area of international law. It is not an easy task
to select, order and place in context essays from the enormous quantity of academic legal
writing published in journals - in many languages - throughout the world. This task requires
professional scholarly judgment and difficult choices. The editors in this series have done an
excellent job, for which I thank and congratulate them. It has been a pleasure working with
them.

ROBERT McCORQUODALE
General Series Editor
School o f Law
University o f Nottingham
Introduction

The essays in this volume examine issues concerning the relationship between modem
international law and Islamic law. The topicality of this subject, especially after 11 September
2001, is apparent, and its academic and practical importance is very well depicted in the
following observation of Professor Christopher Weeramantry, former Judge of the International
Court of Justice:

There will be in the future an increasing need for non-Islamic countries all over the world to negoti-
ate with Islamic countries on a multitude of matters ranging from questions of war and peace to
mercantile contracts. Such negotiation will require more understanding of Islamic attitudes, history
and culture.
An excellent recent example of an opportunity lost through lack of such understanding was the hos-
tage crisis in Iran.1The USA, asserting the well-accepted principle of diplomatic immunity and right
to protection, kept referring continually to the formulations of this rule in the Western law books.
Islamic law is also rich in principles relating to the treatment of foreign embassies and personnel.
These were not cited, as far as the author is aware, nor was the slightest understanding shown of the
existence of this body of learning. Had such authority been cited by the USA, it would have had a
three-fold effect: its persuasive value would have been immensely greater; it would have shown an
appreciation and understanding of Islamic culture; and it would have induced a greater readiness on
the Iranian side to negotiate from a base of common understanding.
It is not often sufficiently appreciated, especially in the Western world, that many of the current
rules of international law are regarded by a large segment of the world’s population as being princi-
ples from the rule-book of the elite club of world powers which held sway in the nineteenth century.
In the midst of this general attitude of mistrust, the worthy rules are tarred with the same brush as
the self-serving. World cultural traditions need to be involved, where available, to bolster up and
reinforce these rules.
Indeed, at the time of the hostage crisis, the author drew the attention of the US authorities to the
need to research the Islamic material on this point and although this suggestion was referred to the
Task force in Washington handling the crisis, the author is not aware of any steps taken in this direc-
tion. He was never informed of any consequent action following from this proposal and can only
presume that it lapsed through lack of understanding or lack of expertise in the US office handling
the matter.
The same considerations apply at many other levels. The non-Islamic world neglects them at its own
cost. (Weeramantry, 1988, p. 166)

Since the above observation by the learned jurist in 1988, international events generally, and
those relating to the Muslim world especially, corroborate the need for a better understanding
of the relationship between contemporary international law and Islamic law and how their
interaction can be explored and improved to enhance international relations and law. This

1 This was in reference to the Iran/USA diplomatic hostage crisis of November 1979 to January
1981.
xiv International Law and Islamic Law

relationship can be perceived from two main angles. The first is in relation to the interaction
between contemporary international law and the domestic laws and cultures of relevant
Muslim states, while the second is in relation to the existence of a separate traditional concept
of an Islamic law of nations or Islamic international law known as the siyar2 within general
Islamic law.
It is a truism that international law must necessarily interact with the domestic laws of
respective states. In relation to Muslim states, Islam has often, to varying degrees, been a
relevant factor in that interaction. This is due to the evident role that Islam and Islamic law
have played and continue to play in the cultural, political and legal affairs of many Muslim
states and societies, both prior to and since the establishment of the United Nations (UN)
system. Although some commentators do argue that Islam is, essentially, neither the problem
nor the solution per se to political and social problems in the Muslim world (Brumberg, 2005-
6; Chase, 2006, p. 21), a careful review of the political and legal developments in Muslim
states such as Saudi Arabia, Iran, Iraq, Egypt, Morocco, Sudan, Nigeria, Pakistan, Indonesia,
Malaysia, Palestine and even secular Turkey (see, for example, Smith, 2005), among others,
reveals different degrees of Islamic influence in their politico-legal affairs, which impacts
directly or indirectly on the application of international law in those states. For example,
Heiner Bielefeldt (Chapter 17) has observed that ‘traditional sha’ria [sic] norms continue
to mark family structures all over the Islamic world’ and that ‘the sha’ria [sic] criminal law
is [still] applied ... in a few Islamic countries today’ (p. 358). Buskens has also noted that
‘[i]n most Muslim societies it is impossible to speak about family law except in terms of
Islam’ (2003, p. 71), which, on the one hand, signifies the cultural and legal influence of
Islam in that regard, but, on the other hand, also has significant impact on the application of
international law, especially in relation to women’s rights, in the respective Muslim states.
Modirzadeh (2006, p. 192) has thus observed the need to take Islamic law seriously and
engage with it one way or another in relation to the promotion and protection of international
human rights in the Muslim world. This domestic role of Islam is formally reflected in the
constitutions of some modem Muslim states that either declare Islam as the religion of the
state and recognize Islamic law as part of state law (Stahnke and Blitt, 2005, pp. 7-12) or
provide for the establishment of state courts that apply Islamic law.3
Apart from the domestic influence of Islam in individual Muslim states, Muslim states have
also, as members of regional organizations, collectively adopted regional instruments such as
the Arab Charter on Human Rights,4 the Charter of the Organization of Islamic Conference
(OIC),5 the OIC Cairo Declaration on Human Rights in Islam6 and the OIC Covenant on

2 Also written ‘al-siyar ’ or ‘as-siyar ’ in the definite form.

3 See, for example, the Constitution of the Federal Republic of Nigeria (1999) Sections 260-264
and Sections 275-279, and the Constitution of the Islamic Republic of Pakistan (1973 as amended)
Article 203.
4 Adopted by the League of Arab States on 15 September 1994, reprinted in Human Rights
Law Journal, 18 (1997), p. 151. A revised version of the Charter was adopted in May 2004. See
http://wwwl.umn.edu/humanrts/instree/loas2005.html [accessed 11 May 2007].
5 914,UNTS, p. 111.
6 Adopted on 5 August 1990. See UN Doc. A/45/5/21797, p. 199.
 International Law and Islamic Law jcv

the Right of the Child in Islam,7 all of which make reference to Islam as a relevant factor
in relation to international law in the Muslim world. At the UN level, the OIC has made
submissions on behalf of Muslim states regarding proposed reforms of the UN Security
Council to the effect that ‘any reform proposal, which neglects the adequate representation
of the Islamic Ummah in any category of members in an expanded Security Council will not
be acceptable to the Islamic countries’.8 Islam, therefore, also has some theoretical impact on
the regional relations and organizations of Muslim states. From an Islamic legal perspective,
there is, additionally, the traditional concept of an Islamic international law, the siyar, based
on Islamic principles but with many principles similar to those of modem international law,
which could be employed for a better promotion and accommodation of modem international
law in the Muslim world.
While modem international law is generally perceived as a secular international legal
system with its foundations lying ‘firmly in the development of Western culture and political
organisation’ (Shaw, 2003 p. 13), it is well acknowledged that its roots generally reach far
back into antiquity and can be traced in the history and norms of different religions and
civilizations of the world (Brierly, 1963, p. 1; Bederman, 2001; Shaw, 2003, pp. 13-22;
Stumpf, 2005). Ironically, in the face of many contemporary international challenges, many
international scholars, jurists and statesmen have intermittently suggested recourse to earlier
concepts, such as natural law and religious principles, to find ways of expanding the scope of
modem international law to meet those challenges. In relation to the Muslim world, Islamic
law and the principles of the siyar can be very relevant in that regard (see, for example,
AbuSulayman, 1994).
Owing to the above influences of Islam in the Muslim world and amongst Muslims generally,
the relationship between modem international law and Islamic law has raised many theoretical
and practical questions that cannot be ignored in the study and understanding of contemporary
international law. The current Iraqi crisis has demonstrated this in at least two ways. First was
the earlier controversy as to whether or not the US-led invasion of Iraq in March 2003 (in
the wake of the invasion of Afghanistan) was a war by Western superpowers waged against
Islam and the Muslim world. Second was the later controversy during the drafting of the Iraqi
constitution as to whether Islamic law should serve as ‘a source’ or ‘the source’ of legislation
in the constitution.9 In the first case, both the US President George Bush and the UK Prime
Minister Tony Blair had to explain many times that the war on Iraq was not between the West
and Islam. After an initial stalemate in the second case, the compromise was to include Islam
as ‘a source of legislation’ in the Iraqi interim constitution adopted in March 2004 (see Brown,
2004) and subsequently as ‘a basic source of legislation’ in the main constitution adopted in
October 2005 (Art. 2, The Constitution of Iraq 2005). Such controversies raise the question of
whether or not Islamic norms and the norms of international law are compatible.

7 Adopted by the 32nd Islamic Conference of Foreign Ministers in Sana’a, Republic of Yemen in
June, 2005. See http://www.oic-oci.org/french/conventions/Rights%20oP/o20the%20Child%20In%20I
slam%20F.pdf [accessed 11 May 2007].
8 See UN Doc. A/59/425/S/2004/808 (11 October 2004), para. 56.
9 See, for example, International Crisis Group Report, Iraqs Constitutional Challenge, 13
November 2003, pp. 17-18, par. D. at: http://www.icg.0rg//library/d0cuments/middle_east___north_
africa/19_iraq_s_constitutional_challenge.pdf [accessed 15 April 2007].
xvi International Law and Islamic Law

Although debates about the relationship between Islam, Islamic law, modem international
relations and international law increased greatly after the terrorist events of 11 September
2001 in the USA, 7 July 2005 in the United Kingdom and similar atrocities in other parts of
the world, the debate is not a new one. There had been academic analyses and commentaries
regarding the relationship between Islam, Islamic law, Muslim states and international law even
before the creation of the United Nations (UN) in 1945. Writing from an Islamic perspective
in 1941, Hamidullah noted that ‘There was not international law in Europe before 1856’,
arguing that ‘[w]hat passed as such was admittedly a mere public law of Christian nations. It
was in 1856 that for the first time a non-Christian nation, Turkey, was considered fit to benefit
from the European Public Law of Nations, and this was the true beginning in internationalising
the public law of Christian nations.’ He observed, however, that international law, ‘with its
modem connotation’ existed long before then within Islamic law (Hamidullah, 1977, p. vii).
This is a reference to the siyar, a concept of Islamic law of nations, which existed formally as
early as the eighth century as evidenced by the writings of Muslim scholars and jurists such
as Muhammad al-Shaybani (see Khadduri, 1966). Shihata, writing in 1962, argued that ‘in
order to eliminate a major excuse for the violation of international law, there should be greater
participation by the other legal systems in the formation and development of international
law’ and that ‘by reflecting to a greater extent on the principles of non-European legal systems
in the mles of international law, the validity and fairness of [modem] international law will be
more widely recognized and more strongly supported.’ Shihata then argued the need to study
the structure of Islamic law and ‘to verify the extent of its past contributions to the development
of international law, and to survey the possibilities of its further contributions in the future’
and asserted that ‘[t]hrough this approach, contemporary international law will probably
prove to be a more readily accepted system to this vast part of the international community
vaguely referred to as the “Muslim world’” (1962, pp. 101-102). As observations like this still
subsist in different connotations within international law debates today, the carefully selected
essays in this volume would perhaps go a long way in contributing to relevant comparative
reflections between international law and Islamic law.
Generally, the academic literature on this subject reflects two main points of view. While
some commentators project a synthesis between modem international law and the principles
of Islamic law (see, for example, Mahmassani, 1968; Abou-el-Wafa, 2005), others project
a divergence between the two (see, for example, Westbrook, 1993). Nevertheless, modem
international law does encourage the development of common ground between the different
legal systems of the world to ensure global peaceful and harmonious international relations.
This is manifested in the provisions of a number of international instruments. Article 38(1)
of the Statute of the International Court of Justice (ICJ) recognizes ‘the general principles of
law recognized by civilized nations’ as part of the sources of international law, while Article
9 of the Statute provides that in electing the judges of the ICJ ‘the election shall bear in mind
not only that the persons to be elected should individually possess the qualifications required,
but also that in the body as a whole the representation of the main forms of civilizations and
of the principal legal systems of the world should be assured’. In a memorandum presented
by delegates of Muslim states to the League of Nations in September 1939 and to the UN
Conference in San Francisco in April 1945, it was submitted that Islam constituted one
of the main forms of civilization and Islamic law one of the principal legal systems of the
world referred to in Article 38 of the Statute of the Permanent Court of International Justice
 International Law and Islamic Law xvii

(PCIJ) under the League of Nations, which was subsequently adopted as Article 38 of the ICJ
Statute (see Mahmassani, 1968, p. 222). Similar provisions are found in Article 31(2) of the
International Covenant on Civil and Political Rights and in Article 8(1) of the International
Convention on the Elimination of Racial Discrimination. The UN General Assembly has
also expressed a firm determination to promote dialogue among civilizations as a means
of achieving the universal purposes and principles contained in the UN Charter, and has
emphasized the importance of dialogue ‘as a means of understanding, remove threats to peace
and strengthen interaction and exchange among civilizations’ (see GA Res. A/RES/53/22 of
16 November 1998).
The possibility of cooperative interaction between principles of international law and
Islamic law has also been acknowledged by international tribunals in some cases. For
example, in Eritrea v. Yemen (Phase Two: Maritime Delimitation) (1999), the arbitration
tribunal acknowledged relevant aspects of Islamic law in its findings and concurred, inter
alia, to the view that ‘in today’s world, it remains true that the fundamental moralistic general
principles of the Quran and the Sunna may validly be invoked for the consolidation and
support of positive international law rules in their progressive development towards the goal
of achieving justice and promoting the human dignity of all mankind’.10
To regulate the coexistence between states in their bilateral and multilateral relations,
modem international law covers a wide range of issues in international relations both in times
of peace and in times of war. Research by prominent scholars and jurists of Islamic law and
international law has shown that there are principles within general Islamic law and within
the rules of the siyar that are relevant to most of the issues covered by modem international
law (see Shihata, 1962; Hamidullah, 1977; AbuSulayman, 1994; Mahmsanni, 1968; Abou-
el-Wafa, 2005). As it is obviously impossible to cover every aspect of international law in
this volume, the scope of the essays contained herein is limited to the 11 main areas listed
below. The essays have been carefully selected to reflect, as much as possible, the different
perspectives on each of the aspects covered. A brief summary is provided of each essay
included in the volume, giving a general insight into the issues covered.

General Principles of International Law

To achieve its purpose, international law is based on some important general principles, to
which all states are expected to adhere. Some of the most important of these principles, as
established under the UN Charter, are the principle of peaceful coexistence between states
(Preambular Paragraph 4 and Art. 1(2), UN Charter), the principle of sovereign equality
of states (Art. 2(1), UN Charter), the principle of peaceful settlement of disputes amongst
states (Art. 2(3), UN Charter) and the principle of refraining from the threat or aggressive
use of force by states against the territorial integrity or political independence of one another
(Art. 2(4), UN Charter). O f importance also is the principle of the sanctity of treaties under
international law, which requires that parties to a treaty must fulfil their obligations under
the treaty in good faith {pacta sunct servanda) (Art. 26, Vienna Convention on the Law of

10 Eritrea v. Yemen (Phase Two: Maritime Delimitation) (1999) Judgement, par. 94. Professor
Michael Reisman has, however, submitted that the reference to Islamic law in this case was unnecessary
and ‘unwise in context’ (2000, p. 730).
xviii International Law and Islamic Law

Treaties 1969). Most questions regarding the relationship between modem international law
and Islamic law tend to centre on whether or not the principles of general Islamic law and that
of the siyar are reconcilable with the general principles of modem international law.
In the interaction between international law and Islamic law, the relevance of these principles
of international law revolves particularly around the division of world order under traditional
Islamic political theory into two realms, namely the realm of Islam (dār al-Lslam) and the realm
of war (dār al-harb). The traditional theoretical division of world order under the Islamic law
of nations was perceived principally as realizing a single universal Islamic realm under one
political authority, which was in a permanent state of hostility with the non-Islamic realm
until the non-Islamic realm was converted into the Islamic realm (Ibn Khaldun, 1958, p. 473).
That perception of world order under the traditional Islamic law of nations has been identified
by commentators as irreconcilable with the main principles of modem international law
identified above, particularly the principle of peaceful coexistence between states. However,
there are contemporary arguments that there is no unanimity on this perception of world order
under Islamic law and that ‘it was not, and is still not, a rigid or unanimous doctrine of Islamic
legal theory and political practice that Muslim nations shall maintain permanent or persistent
hostile relations with non-Muslim nations’ but that the Muslim world ‘has an important role
to play in the modem international order through an evolutionary interpretation and injection
of the paradigmatic ideals of Islam into the pragmatic policies of the modem international
order’ (Baderin, 2000, p. 59). The five essays in Part I of the volume examine, from different
perspectives, issues relating to the general principles of modem international law in relation
to Islamic law.
In the first essay, ‘Islam and the Modem Law of Nations’ (Chapter 1), Majid Khadduri, one
of the earliest post-UN commentators on the relationship between Islamic law and modem
international law,11 begins with the argument that the ‘traditional [Islamic] law of nations is
... radically different from the modem law of nations and the principles implied in the United
Nations Charter’ (p. 3). He then proceeds to analyse the traditional concept of the Islamic law
of nations and its evolved practices, particularly under the Ottoman Empire, in relation to the
development of modem international law and its European and Christian foundations before
its secular transformation, particularly after the creation of the UN. In the end, he observes,
that ‘[t]he secular approach to the conduct of foreign relations has been accepted by almost all
Muslim states, whether completely secularized in their internal legal structure, as in the case
of Turkey, or still recognizing the shari ’a as their basic law, as in Saudi Arabia and the Yaman
[Yemen]’ (p. 15), leading to his conclusion that ‘[t]he active participation of Muslim states in
international conferences, in the League of Nations, and the United Nations and its agencies,
demonstrates that the dar al-Lslam has at least reconciled itself to a peaceful co-existence
with dar al-harb’ (pp. 15-16). Similar views are expressed on this point by Khadduri in his
other publications (1955, 1959, 1966 and 1972), as his general position tended to be that the

11 Professor Majid Khadduri was a leading pioneer and a world renowned scholar in the study of
the relationship between international law and Islamic law. He was a member of the Iraqi delegation to
the founding session of the UN in the 1940s, and a leading expert in Islamic law, Middle East studies
and international law. He was Director of Middle East Studies at the School of Advanced International
Studies of Johns Hopkins University, Washington DC until his retirement in 1980. He died in January
2007 at the age of 98.
 International Law and Islamic Law xix

membership of Muslim states in the UN should be seen as a departure from the religious
ideology of international relations under classical Islamic law.
Christopher Ford, in his essay ‘Siyari-zation and Its Discontents: International law and
Islam’s Constitutional Crisis’ (Chapter 2), also begins by examining the classical traditions
of the Islamic law of nations in theory and practice but then moves on to challenge ‘attempts
to depict the siyar as being congruent with the sources-doctrine of modem international
jurisprudence’ (p. 20). He argues that such attempts ‘merely whitewash genuine discrepancies
between international norms and the principles grounding the siyar’ (p. 20). In that regard,
Ford challenges one of Khadduri’s arguments that ‘the sources of the Islamic law of nations
conform generally to the same categories defined by modem jurists and specified in [Article
38(1) of] the Statute of the International Court of Justice’ (Khadduri, 1966, p. 9). According
to Ford, that represented a ‘loose analogizing of Article 38(1) [of the ICJ Statute] and Islamic
sources-doctrine ... [which] may overstate the degree to which Islamic law can genuinely be
reconciled with modem international jurisprudence’ (p. 38). He concludes that the Islamic law
of nations faces a ‘constitutional crisis’ and that ‘a Muslim law of nations that genuinely does
conform generally to the structure of modem international law requires Islam’s abandonment
of much of the bedrock of theocratic principle that makes the shari’a the shari’a ’ (p. 51)
(see also Westbrook, 1993, the text of which could not be included in this volume due to its
length).
The perspectives of the other three essays in Part I differ from that of the two essays above.
In ‘The Role of Islamic Law in the Contemporary World Order’ (Chapter 3), Ali Ahmad
begins by identifying the existence of the principle of the validity of treaties under Islamic
law and that Muslim states are thus bound by their treaty obligations and membership of the
UN even under Islamic law principles. In the case of Saudi Arabia v. Aramco the Arbitrator
had also observed that ‘Muslim law does not distinguish between a treaty, a contract of civil
or commercial law’ and that ‘[a]ll these types are viewed by Muslim jurists as agreements
or pacts, which must be observed ... as expressed in the Koran: “Be faithful to your pledge,
when you enter into a pact”.’12Ahmad further notes that despite their membership of the UN
and participation in modem international law, ‘Islamic law [still] plays a role in regulating
the internal and external affairs of a number of Muslim societies’ (p. 55) He thus seeks to
examine the potential of Islamic law ‘in mediating international tensions involving Muslim
countries and its role in international consensus building and lawmaking forums’ (p. 55).
Ahmad observes that there is little irreconcilable difference between modem international
law and Islamic law per se, but laments the lack of engagement of Islamic law in resolving
international issues in circumstances in which it would have been appropriate and helpful.
He notes, inter alia, the potential relevance of Islamic law and legal principles in the fight
against international terrorism, corroborating his argument with reference to Yasin El-
Ayouty’s observation that ‘[t]he invocation of Islamic law would constitute a powerful tool
in the delegitimization of the Islamic framework within which Muslim terrorists operate and
raise funds’ and that the ‘invocation of Islamic law would be of considerable help in the areas
of extradition, prosecution and punishment of Muslim terrorists’ (El-Ayouty, 1999, p. 491)
due to the fact that, similar to modem international law principles, Islamic principles prohibit
such acts of terrorism. Ahmad’s essay concludes that ‘involving Islamic law in addressing

12 (1963) 27 ILR 117.

XX International Law and Islamic Law

international terrorism and management of the global environment is an indication of how it

may assist in addressing, on a long-term basis, wider issues of international concern’ (p. 69).
Abdullahi An-Na’im’s essay ‘Islam and International Law: Toward a Positive Mutual
Engagement to Realize Shared Ideals’ (Chapter 4) begins by identifying the basis of the
linkages between Islam and international law but then argues for the need to contextualize
the relationship between Islam and international law in terms of Muslims’ understanding and
practice of their religion in relation to international law and not about Islam in the abstract. He
also observes the necessity to speak of Islamic traditions in the plural to indicate the diversity
of Islamic perspectives in that regard. On the other hand, he notes the need for international law
to be truly international for it ‘to play its role in realizing shared ideals of justice and equality
under the rule of law for all human beings’ and that ‘it cannot simply be the same as the
European system of interstate relations that had evolved since the eighteenth century’ (p. 72).
In essence, modem international law needs to accommodate relevant principles, institutions
and processes within all civilizations that can enhance the promotion and realization of the
noble ideals of modem international law under the UN system.
Regarding the question of how a system based on religious and theological concepts can
positively interact with an inherently secular international law, An-Na’im notes that ‘[s]ince
the Islamic dimension of traditions and law are the product of the human agency of Muslims
in the specific historical context of their societies, they can fully engage international law
as an integral aspect of the context and experience of those societies’ (p. 76). However, he
laments that ‘the realities of power relations, as well as the possibilities of legal imagination,
are missed by western scholars when they examine the relationship between Islam and
international law’ (p. 76), citing two examples - David Westbrook’s essay (Westbrook, 1993)
and aspects of James Cockayne’s essay (Chapter 10 - discussed below) - both of which, he
observes, present international law as inherently ‘Western’ without an attempt to include the
Islamic perspective on equal terms.
Finally, Wahbeh al-Zuhili’s essay on ‘Islam and International law’ (Chapter 5) analyses the
Islamic principles on international relations and international law, wherein he observes that
the Islamic system provides for many rules of international relations similar to those under
modem international law such as principles relating to human brotherhood, honouring of the
human being and preserving human rights, commitment to rules of ethics and morality, justice
and equality, humanitarianism, pacta sunt servanda, reciprocity, state sovereignty and legal
restrictions on and in warfare. Although quite introductory and relying mostly on references
from the main sources of Islamic law, such an analysis from a leading Islamic scholar and
jurist provides a good Islamic basis for areas of common ground between Islamic law and
modem international law principles (see also Abou-el-Wafa, 2005 and Mahmassani, 1968, the
text of which could not be included in this volume due to its length).

International Use of Force

The regulation of the use of force is one of the most problematic aspects of international law.
In fact, the effectiveness (or ineffectiveness) of international law as a whole is often assessed
based solely on this single aspect. Use of force in this sense relates to the legality of warfare, jus
ad bellum. International law prohibits the aggressive use of force by states against each other
(Art. 2(4) UN Charter), except in cases of self-defence (Art. 51 UN Charter) and for collective
 International Law and Islamic Law xxi

security authorized by the UN Security Council under Article 42 of the UN Charter. Between
these two exceptions are some grey areas that have given rise to diverse interpretations and
positions by different international law scholars and states. Many of the challenges confronting
modem international law, especially in relation to Islamic law and the Muslim world, concern
issues relating to the use of force. The Islamic concept of jihād has been very controversial
in that regard. Where jihād, as interpreted by some, is perceived strictly as aggressive use of
force against non-Muslims or non-Muslim states, such use of force would be contrary to the
principle of non-aggressive use of force under modem international law. The need has thus
been stressed for a historical and contextual understanding of the concept of jihād in relation
to the relevant principles of modem international law (see Ali and Rehman, 2005).
In her short essay ‘Views of Jihad Throughout History’ (Chapter 6) Asma Afsaruddin
provides a concise analysis that ‘traces the transformation in the meanings of jihad ... from
the earliest period of Islam through the late medieval period and down to our present time’
(p. 97). The essay begins by contextualizing the Qur’anic concept of jihād as depicted by the
lifetime practices of the Prophet Muhammad, followed by an analysis of the different views
of jihād from Islamic jurists after the Prophet through different periods of Islamic history
up to the present time. Paul Heck has presented a similar but more comprehensive overview
of the formulations of jihād during the first six centuries of Islam showing that the concept
was ‘embedded in particular socio-historical contexts’ and arguing that discussions of jihād
‘should take care to distinguish the historically incidental features of the tradition from those
with an enduring relevancy’ in order for the concept to contribute positively to modem public
order and political organization (2004, p. 95).
Against that contextual background of jihād, Said Mahmoudi’s essay (Chapter 7) examines
the Islamic perception of the use of force in the contemporary world. He begins by identifying
that although Muslim states must, as must other members of the UN, remain within the
framework of the UN Charter on international use of force, nevertheless, ‘Islam-inspired
interpretations may have a role in justifying the use of force within the Charter’s limits’ (p.
103) in relation to the Muslim world. He thereafter discusses the regulations of the use of
force in Islam through an analysis of the concept of jihād in its defensive, offensive and
humanitarian contexts. Regarding the compatibility of the concept of jihād with modem laws
of war, he observes that while ‘a minority of Islamic scholars consider conduct of wars in the
early stages of Islam as incompatible with modem laws of war’ (p. 107), most other scholars
have expressed a contrary view emphasizing that principles of modem warfare such as the
principle of proportionality and the principle of discrimination between military and non-
military objects, were Islamic concepts that ‘entered international humanitarian law through
Spanish jurists such as Francisco de Victoria and Francesco Suarez’ (p. 107). The essay also
discusses the re-emergence of the concept of jihād in modem international law debates and
examines the current state practices of Muslim states through an analysis of three cases of
international use of force involving Muslim states or groups, namely ‘the NATO bombing of
former Yugoslavia, the US war in Afghanistan and the US-UK war in Iraq’ (p. 112). In the
end, he notes that Muslim states have generally ‘shown a rational reaction to recent cases
of the international use of force’ (p. 115) and that ‘[w]hen jihād is invoked by resistance
or militant groups to justify attacks, there is reason to be hesitant about accepting this as
sanctioned by Islam’ (p. 115).
xxii International Law and Islamic Law

The question of international humanitarian intervention is one of the grey areas in the
regulation of the international use of force. There is ongoing debate regarding the scope of, and
whether or not there is a right of, forceful humanitarian intervention under international law.
Sohail Hashmi’s essay (Chapter 8) examines the question of whether there is an Islamic ethic
of humanitarian intervention and whether Islamic law can contribute to resolving the debate
on humanitarian intervention under modem international law. The importance of Islamic
principles in that regard is reflected in the fact, as identified by Hashmi, that ‘most important
“test cases” of humanitarian intervention have involved Muslims, as victims (as in Bosnia and
Kosovo), as perpetrators (as in East Timor), or as both victims and perpetrators (as in Iraq and
Somalia)’ (p. 118). The Darfur humanitarian crisis in the Sudan is a recent example of such
crises. Hashmi observes that ‘[i]f humanitarian intervention is to become a viable instrument
for the alleviation of severe human suffering, appropriate institutions must be created in the
regions of the crises themselves for speedy relief and eventually for prevention’ (p. 118).
He argues that Islamic law can provide valuable contributions in that regard generally and
particularly in situations involving Muslim states. He notes that ‘the ethics of humanitarian
intervention in Islam must be seen as a subset of the general theory of jihad’ (p. 124) and
cites the Qur’anic verse that says ‘And why should you not fight in the cause of God and of
those who being weak are ill-treated and oppressed: Men, women and children whose cry is:
“Our Lord!, rescue us from this land whose people are oppressors. And raise for us by Your
grace one who will protect; and raise for us by Your grace one who will help’” (Q4:75), as a
launching pad for his analysis of the concept of humanitarian intervention under Islamic law
in relation to the principles of modem international law.

International Humanitarian Law

International humanitarian law aims to ensure that when war occurs (whether legally or
illegally) the parties involved in hostilities conduct it according to defined humanitarian
principles. It regulates conduct in warfare, jus in bello, rather than the legality of warfare,
jus ad bellum, which was the subject of Part II above. Humanitarian principles are equally an
important component of the law of war under the traditional rules of Islamic law of nations
(ial-siyar). In fact, as in modem international law, there are more rules relating to jus in bello
than to jus ad bellum under the traditional Islamic law of war.
Karima Bennoune’s essay (Chapter 9) provides a comprehensive comparative analysis
of humanitarian law in Islamic jurispmdence in relation to modem international law. She
begins by noting that ‘scholars of modem international humanitarian law have often ignored
its historical roots in Islamic law’ (p. 141) and that modem international humanitarian law
‘is often viewed as a product only of the Christian tradition (sometimes expanded to the
Judeo-Christian tradition) and of European experience’ (p. 142). Against the background of a
very good analysis of both modem international humanitarian law and Islamic humanitarian
principles of warfare, the essay provides a comparative examination of Islamic humanitarian
law and modem international humanitarian law, identifying the areas of similarities, differences
and the contributions of Islamic legal traditions to modem international humanitarian law.
Arguing that international cooperation is entirely possible in this area of modem international
law and Islamic law, the essay concludes that ‘[i]f the vitally important body of contemporary
international humanitarian law is to find further acceptance and compliance, the contributions
 International Law and Islamic Law xxiii

to its development made by multiple cultural traditions and the great debt it owes to the
Islamic legal tradition, among others, must be recognized’ and that ‘the perceived legitimacy
of the law is hurt among peoples whose traditions and historical contributions are excluded
from official genealogies of contemporary humanitarian law’ (p. 178).
James Cockayne’s essay ‘Islam and International Humanitarian Law: From a Clash to a
Conversation between Civilizations’ (Chapter 10) provides a historical analysis of how ‘the
modem interaction between Islamic and Western civilizations has played an important part
in shaping humanitarian law as we now know it’ (p. 181). It presents a historical analysis
of the role of Islam in the development of international humanitarian law starting from
1856, when the Ottoman Empire entered into the European States’ legal system, up to the
negotiation of the Statute of the International Criminal Court at the 1998 Rome Diplomatic
Conference. Cockayne’s analysis in this essay reflects more of the negative impacts of the
Muslim or Islamic ‘other’ that eventually contributed to the universalization of humanitarian
law from its Christian origins (see criticism by An-Na’im in Chapter 4). Cockayne, however,
concludes positively by proposing that international humanitarian law should be understood
as a ‘conversation between civilizations' and that ‘Islam is just one of the civilizations ...
engaged in this conversation’ (p. 207). Some Islamic principles of jus in bello applicable
during warfare which can positively contribute to such a conversation are discussed in the
previous essay and in the following one.

International Terrorism

Since the 11 September terrorist act in the USA, some commentators on international terrorism
have argued, often with reference to the statements of Osama bin Laden in that regard, that
Islamic law encourages terrorism. That view has been challenged by other commentators.
Major Copinger-Symes’ essay (Chapter 11) examines whether the ‘fatw a’ issued by Osama
bin Laden on 23 February 1998 urging jih ā d ’ against Americans could be justified under
Islamic law. The essay begins by identifying that ‘[t]here has been an academic and media
focus on the potential for prolonged conflict between the liberal democratic “West” and the
Islamic (Middle) “East” for some time’, much of which, Copinger-Symes observes, has ‘relied
heavily on cliché and stereotype’ but which has ‘proved seductive to a great many readers
in both the West and the East’ (p. 213). He notes that ‘there has been little willingness to
examine whether or not there is any valid [Islamic] theological basis to bin Laden’s activities’
(p. 214). The essay provides an extensive analysis of the doctrine of jihād under Islamic law
before proceeding to evaluate bin Laden’s ‘fatw a’ of 23 February 2008 in the light of that
analysis. Copinger-Symes concludes that ‘[w]hile jihad doctrine can be considered to justify
bin Laden’s resort to war in defence of Islam, it cannot justify the means that bin Laden
proposes to use in that war. The means - the murder of non-combatants wherever they may
be found - are against even the most extreme interpretations of Islamic Law’ (p. 229). He
notes, in conclusion, that ‘We m u st... continue to stress that bin Laden’s actions run entirely
counter to the jus in bello of jihad doctrine, as well as International Law. This must be used
to undercut his credibility by calling into question his understanding of Islamic Law’ (p. 229).
On the other hand, the essay identifies the need also for the West to ensure that ‘it is above
reproach with regard to rules that it has developed for its own guidance - Public International
Law including the Laws of Armed Conflict’ (p. 230).
xxiv International Law and Islamic Law

Katerina Dalacoura’s essay (Chapter 12) examines, against the backdrop of 11 September,
the relationship between Islam, violence and just war principles. The essay argues generally
that Islamic principles could be used to both support and oppose international norms on
going to war and the correct conduct of warfare. Dalacoura observes that the interpretations
of Islamic norms in that regard are determined by both domestic and international political
factors, and cites two Muslim states, Afghanistan and Iran, as examples to demonstrate the
possibility of two opposing interpretations of Islam under different ‘Islamic’ regimes. She
concludes that Western foreign policies towards the Middle East are an important factor in
how Islam is interpreted in the Muslim world in relation to international violence and war.

International Protection of Diplomats

Peaceful bilateral relations amongst states are normally established based on mutual exchanges
of diplomats. The international protection of diplomats can therefore be considered as the
‘live-wire’ of peaceful international relations. Thus, the identification of common ground in
this area between modem international law and Islamic law can go a long way to enhance
peaceful interstate relations especially with Muslim states. Interestingly, this is an area in
which there is significant common ground between international law and Islamic law but it
has been underutilized in modem international law practices, as reflected in the statement by
Weeramantry quoted at the beginning of this Introduction.
M. Cherif Bassiouni’s essay (Chapter 13) provides an informative contribution on this
topic. It examines the protection of diplomats under Islamic law in the light of the 1979-1981
seizure and detention of United States diplomats by a group of militant students in Tehran,
Iran. Bassiouni argues that even though the ICJ had examined the incident from the point of
view of modem international law, it was also of interest to inquire about the legal position of
the incident under Islamic law as recognized law under the constitution of the Islamic Republic
of Iran then and now. In fact, the ICJ did acknowledge in the Case Concerning United States
Diplomatic and Consular Staff in Tehran13that ‘the principle of the inviolability of the persons
of diplomatic agents and the premises of diplomatic missions is one of the very foundations
of this long-established regime, to the evolution of which the traditions of Islam made a
substantial contribution’.14 Through an analysis of the sources of Islamic law, the principles
of Islamic law of nations and the ‘consistent practice of Muslim heads of state (Khalifas)’
(p. 243), Bassiouni establishes that diplomats have privileges and immunities under Islamic
law similar to that under modem international law. He argues that based on the recognition
of the principle of the sanctity of treaties under Islamic law, Iran was bound under Islamic
law to respect its obligations as a State Party to the 1961 Vienna Convention on Diplomatic
Relations and the 1963 Vienna Convention on Consular Relations. He concludes, inter alia,
that the seizure and detention of the US Diplomats was ‘in violation of Islamic law, Islamic
international law, and conventional international law’ (p. 265) (see also Hamidullah, 1977, pp.
151-52). The potential, but untapped, relevance of Islamic law to that Iran hostage crisis is
very well depicted by Weeramantry in the quotation at the beginning of this Introduction.

13 ICJ Reports 1980, p. 41.

14 Judgment of 24 May 1980, par. 86.
 International Law and Islamic Law xxv

International Environmental and Water Law

Although International Environmental Law (IEL) is a relatively young branch of general

international law, it has emerged as one of the most important international law issues in
recent times. The reality of the many environmental problems confronting humanity as a
whole in the form of air pollution, marine pollution, soil pollution, water pollution, water
shortage, deforestation, global warming and depletion of the ozone layer has brought IEL
to the forefront of modem international law. Owing to the fact that the environment does
not respect the artificial boundaries of states, an unbreakable chain of ecological interaction
is naturally created between states, leading to calls for legislative and cultural cooperation
between all states and civilizations in protecting the environment. The importance of water
law in that regard can also not be overemphasized, as many states share ground water
resources in the form of transboundary watercourses requiring international legislative
cooperation. An International Environment Fomm from an Islamic Perspective was held in
Saudi Arabia in 2000 where it was observed that ‘according to the principles of Islamic law,
it is the responsibility of mankind to ensure a healthy environment and to take special care in
order to avoid all forms of man-made waste, such as hazardous chemicals’.15An identification
of relevant areas of common ground between modem international law and Islamic law can
enhance international legislative and cultural cooperation in that regard, particularly for the
Muslim world.
The essay by Lisa Wersal on ‘Islam and Environmental Ethics’ (Chapter 14) explores the
insights of Islamic scholars on how Islamic ethics can respond to contemporary environmental
challenges. The essay begins by identifying the challenge posed to every world religion to
‘reclaim and emphasize those aspects of their beliefs which promote ecological integrity
and environmental quality’ and ‘to contribute to international and interfaith forums for the
discussion of environmental ethics’ (p. 271). Many scholars have endeavoured to respond
to this challenge by researching and analysing provisions of the Qur’an and other aspects of
Islamic law relevant to environmental conduct (see Izzi Dien, 2000; Kula, 2001; Schwarte,
2003; Rice, 2006). Wersal raises the important question of ‘What unique insights does Islam
offer the global community in addressing environmental challenges?’ (pp. 271-72). To answer
that question the essay proceeds to examine different interpretations of Islamic law regarding
environmental ethics and the suggestions of different scholars on the application of Islamic
principles to contemporary environmental challenges.
In the essay ‘Can there be Confluence? A Comparative Consideration of Western and Islamic
Fresh Water Law’ (Chapter 15) Thomas Naff and Joseph Dellapenna provide a comparative
analysis of the regulation of fresh water under modem international law and Islamic law.
They examine important questions such as whether the two legal regimes ‘can be sufficiently
harmonized or integrated to enable effective, basin-wide management of such waterways as
the Indus and the Nile Rivers where the two systems of law co-exist’ (p. 281) and whether
Islamic law has ‘a direct practical role to play in the management of international water
basins in today’s world’ (p. 282). The essay also explores ‘the implications of the fact that
Muslim nations where Islamic law prevails are members of the UN and have signed [relevant]

15 ‘The Environment from an Islamic Perspective’, Environmental Policy and Law, 31, 3 (2001),
p. 162.
xxvi International Law and Islamic Law

UN conventions and treaties’ (p. 281) on the rules of international water law. They identify
areas of similarities and differences between the two systems and in the end conclude that
despite the differences between the two legal systems, Islamic law and international water law
‘might be successfully combined in the management of some international basins that involve
Islamic riparian states’ (p. 302), for example, in the form of regional framework accords or
codes that can be supported under modem international law. Indeed, other researchers have
also observed that the ‘Islamic legal tradition may have one of the richest traditions of law
applicable to ground water resources’ (Eckstein and Eckstein, 2005, p. 680), which could be
explored for the possible enhancement of the principles of modem international law in that
regard, especially in relation to their application in Muslim states that apply Islamic law.

Universality of Human Rights

While general international law primarily regulates the relationship between states, human
rights is a specific aspect of international law that aims to protect the rights of individuals
within states and thus directly impacts on the life of individuals globally. International human
rights norms are more likely to be affected by the cultural norms and domestic laws of states.
The issue of the relationship between international human rights and Islamic law in Muslim
states is therefore very topical, with the question being raised as to whether international human
rights is Islam’s friend or foe (Entelis, 1997). One of the main controversial theoretical debates
concerns the concept of the universality of human rights in relation to Islamic law, which the
four essays in Part VII endeavour to address from different theoretical perspectives.
The essay by Bassam Tibi on ‘Islamic Law /Shari ’a, Human Rights, Universal Morality and
International Relations’ (Chapter 16) ‘focuses on the global dimension of human rights law,
and in particular its incompatibility with the Islamic shari ’a in our current historical period’
(p. 317). It emphasizes that ‘human rights are a cultural concept that originated in Europe’
(p. 312) but which through the adoption of the Universal Declaration of Human Rights
(UDHR) and other international human rights instruments have now become international
law. Tibi identifies human rights as the basic underpinning for international morality and a
uniting force for humanity but notes the problem of the contestation of the universality of this
morality by non-Western politicians, as was demonstrated by delegations from Muslim states,
among others, during the UN Human Rights Conference in Vienna in 1993. He observes
that ‘[w]hile there is a need for unity on human rights standards on an international level,
the implementation of these rights takes place in multicultural contexts that have to be taken
into account’ (p. 316), which raises the question of ‘whether this concept can be established
legally on cross-cultural foundations and thus accepted by Muslims’ (p. 318). This is where
Islamic law and culture becomes relevant for the international human rights debate in relation
to Muslim states and societies. While Tibi notes at the end of the essay that ‘[t]he increasing
role of Islam in world politics and the increased presence of Muslims in Europe and North
America - a presence that makes for a more intense interaction between civilizations than
ever before - underlie the need for a “common discourse about ethics’” (p. 330), he, however,
concurs ‘fully with Max Weber’s view that modem Western science is the only universally
valid standard humanity has ever known’ (p. 324) and thus could be inferred as a source of
modem universal knowledge for judging Islamic norms in terms of cultural modernity in
relation to human rights.
 International Law and Islamic Law xxvii

A question that has often been raised in relation to the proposition for a cross-cultural
approach to universalism is whether there is a single Islamic or Muslim position on human
rights or other issues of international law generally. The essay by Heiner Bielefeldt (Chapter
17) examines Muslim voices in the human rights debate, the purpose of which is to demonstrate
that there is ‘a plurality of Muslim positions in the area of human rights’ (p. 333). In relation
to the universality debate, Bielefeldt states that the essay is also ‘an exploration of the
relationship between the universal claims of human rights on the one hand and the traditional
values rooted in a particular culture [Islam] on the other’ (p. 333). The essay argues that
while ‘one can hardly deny that the concept of human rights is of Western origin, insofar as it
first emerged in Europe and North America’ (p. 339), it does not, however, follow from this
historical fact ‘that the very idea of human rights is essentially and exclusively connected with
Western culture and philosophy’ (p. 339) and thus Bielefeldt identifies the need to accomplish
‘an “overlapping consensus” across different peoples, religions, and cultures’ (p. 340) in the
international debate on human rights. Regarding Muslim voices on the subject, he observes
that ‘a great variety of Islamic positions in the area of human rights exist’ (p. 360), ranging
from conservative positions to liberal positions with other intermediate positions based on
the pragmatic humanitarianism that has largely shaped the development of Islamic law. The
essay concludes that although ‘there are fundamental obstacles to an unconstrained and
unambiguous recognition of human rights in the Islamic tradition - and in other traditions,
too’, ‘because traditions evolve, in light of new experiences and needs, such obstacles might
be overturned both by deliberate efforts on the part of intellectual reformers as well as through
the pragmatic wisdom and humanitarianism of the people’ (p. 361).
In his essay ‘A New Perspective on the Universality Debate: Reverse Moderate Relativism
in the Islamic Context’ (Chapter 18) Jason Morgan-Foster introduces what he calls ‘Reverse
Moderate Relativism’ (RMR) to what he considers the ‘stalled universality debate’ (p. 397) on
human rights. The essay begins by observing that the debate about the relationship between
Islam and human rights ‘provides a particularly rich and controversial window’ (p. 366) to
the general universality/cultural relativist debate on human rights. The RMR theory, Morgan-
Foster argues, ‘offers a superior way to conceptualize the universality question by focusing on
local (in this case, Islamic) norms instead of maintaining an international bias’ (p. 366), which
he considers to be ‘Western-centered’ (p. 377). The essay engages, very comprehensively,
with the different aspects of universalism and cultural relativism before moving on to
analyse the proposed RMR theory in four areas of Islamic law in relation to international
human rights law. Highlighting the ‘profound importance of restructuring the universality
debate from Western neutrals to local neutrals’ (p. 397), Morgan-Foster concludes that ‘[t]he
three most popular theories - universalism, strict cultural relativism, and moderate cultural
relativism - are each conceptually flawed’ (p. 396) for different reasons discussed therein.
He asserts that a ‘reverse moderate relativism, which accepts the virtues of moderate cultural
relativism while avoiding the western-centric detrimental focus on international norms as
neutral benchmark standards ... offers a superior outlook on relativism which avoids the neo-
colonial and western-centric undertones of moderate cultural relativism’ (pp. 396-97) and
thus ‘provides a necessary change in momentum, a change of focus and perspective’ (p. 397)
in the universality debate.
Abdullahi An-Na’im’s essay on ‘Islam and Human Rights: Beyond the Universality Debate’
(Chapter 19) concludes Part VII. It begins by acknowledging that the ‘implementation of
xxviii International Law and Islamic Law

international human rights norms in any society requires thoughtful and well-informed
engagement of religion (broadly defined) because of its strong influence on human belief
systems and behavior, regardless of the formal characterization of the relationship between
religion and the state in any society’ (p. 399) and that ‘religious considerations are too
important for the majority of people for human rights scholars and advocates to continue
to dismiss them simply as irrelevant, insignificant, or problematic’ (p. 399). In relation to
the universality debate, An-Na’im then raises the question of ‘whether the secular Western
origins of human rights, as defined by the UDHR, necessarily mean that these rights are not
(or cannot be) truly universal’ (p. 400). The essay endeavours to answer that ‘key question’
in relation to Islam and Islamic societies. An-Nai’m identifies the need to understand the
synergy between internal discourse and cross-cultural dialogue in the universality debate and
concludes that ‘universality of human rights must be realized through the implementation
of deliberate strategies that are likely to attract popular support, instead of on the basis of
assumptions that such universality already exists, or can be achieved by proclamation in
international documents’ (pp. 4 0 4 ^ 0 5 ) alone.

Women’s Rights

Owing to continued widespread discrimination against women in many aspects of life

universally, the protection of women’s rights has become one of the foremost items on
the international human rights law agenda today. International law prohibits all forms of
discrimination against women and provides for equality of gender in both private and public
spheres of life. This has impacted upon many cultural and traditional practices, in many states,
which are considered discriminatory against women under international human rights law.
Many Muslim states have incorporated elements of Islamic family law into their domestic
laws, creating a big debate on the scope of women’s rights under Islamic law in Muslim states
and whether women can enjoy equal rights and non-discrimination under Islamic law. An
overwhelming literature has been produced, offering different points of view on the subject.
According to al-Hibri, while ‘many secular feminists have criticized patriarchal religiously-
justified laws in Muslim countries, many Muslim women have defended Islam as the guarantor
par excellence of women’s rights’. She observes, however, that while most Muslim women
want to remain good Muslims and enjoy their human rights as well, the conflict created by
traditional patriarchal interpretations of Islamic law for Muslim women is ‘frightening’ (al-
Hibri, 1997, p. 3).
The three essays in Part VIII analyse the different perspectives and approaches that have
emerged within this debate. The essay by Rebecca Barlow and Shahram Akbarzadeh on
‘Women’s Rights in the Muslim World: Reform or Reconstruction’ (Chapter 20) examines the
Muslim feminine paradigms that have emerged in response to the malaise of gender inequality
in the Muslim world. The essay begins by noting that the ‘question of women’s human rights
is arguably one of the most complex and controversial social problems for Muslim societies’
(p. 411), which the authors argue ‘has led many observers to point to a profound intellectual
gap that allegedly separates Muslim and Western thinkers on the question of universal human
rights’ (p. 411). In analysing the different approaches to the promotion of women’s rights
in Muslim societies, they focus principally on the writings of Fatima Memissi, a leading
Moroccan feminist and advocate of women’s rights. The essay traces Memissi’s evolution
 International Law and Islamic Law xxix

from an advocate of ‘secular reconstruction of Muslim societies to a position that resembles

Islamic reformism’ (p. 411) and analyses the reasons underlying the shift in her approach with
relevant criticisms in that regard. Barlow and Akbarzadeh conclude that Memissi’s brand of
Islamic feminism, which subjects ‘the sacred texts of Islam to a feminist re-reading, to locate
and emphasise Islam’s egalitarian precepts ... [is] important to reformism’ (p. 423) and note
that ‘[i]f Muslim feminist theory is separated from its subjects and not able to inspire and
motivate Muslim women, then that theory is diminished in relevance and effectiveness’ (p.
423).
Shaheen Sardar Ali’s essay ‘Women’s Human Rights in Islam: Towards a Theoretical
Framework’ (Chapter 21) aims to highlight ‘the gap between what may be described as the
Islamic “ideal” of women’s human rights as opposed to the contextual realities of the status
of women in various Muslim jurisdictions today’ (p. 425). It provides a comprehensive
analysis of the controversial issues in the debate on women’s rights under Islamic law. Ali
begins by stating the view that the general ‘ethical voice of the Qur’an is egalitarian and
non-discriminatory’ (pp. 425-26) but also contains up to six verses that could validate gender
hierarchies. She then notes that ‘it is difficult to understand why and how these six verses
outweigh the remaining 6,660 [verses], and the position of women in Islam appears to be
determined solely on rules derived from a literal and restrictive reading of these verses’ (p.
426). The essay identifies and critiques some of the theoretical frameworks that have been
advanced by different scholars on the subject, arguing in the end that a common feature of the
various frameworks identified is that ‘they highlight the fact that no matter what methodology
one attempts to employ, there appears no escape from certain clear Qur’anic verses creating
gender hierarchies’ (p. 460).
The essay by Niaz Shah on ‘Women’s Human Rights in the Koran: An Interpretive
Approach’ (Chapter 22) identifies and discusses ‘three different Islamic approaches towards
human rights, secular, non-compatible, and reconciliatory’ (p. 461). Shah critiques these three
approaches in relation to the guarantee of women’s rights under Islamic laws of Muslim states
and proposes an ‘interpretive approach’ in which he advocates a contextual interpretation
of the Koran. He notes that it was the ‘decontextualized and narrow interpretations of the
Koranic verses dealing with women’s rights that ultimately lead to the unequal treatment of
women in Muslim jurisdictions’ (p. 462). The essay thus ‘looks at the relevant verses in their
proper Koranic context and argues that the Koran protects the rights of women fully, if these
verses are interpreted in their proper Koranic context and according to the holistic spirit of the
Koran’ (p. 462). The proposed interpretive approach does ‘not necessarily seek compatibility
between Islamic and international human rights standards, but rather argue[s] that the Koran is
a living text and can be reinterpreted to meet contemporary needs of given Muslim societies’
(p. 474). Shah discusses the possible advantages that the interpretive approach has over the
previous three approaches identified in the essay and concludes, inter alia, that where the
relevant verses of the Qur’an are interpreted in their proper contexts it guarantees the equal
rights of women in all spheres of life and that in relation to the discrimination against women
in the Muslim world, ‘the fault lies not in the Koran, but in the out of context interpretation
of the Koran’ (p. 496).
XXX International Law and Islamic Law

Rights of the Child

Due to the vulnerability of children, international human rights provide for the protection of
children’s human rights by states. According to Van Bueren, ‘the very concept that children
possess rights has a far older tradition in Islamic law than in international law, where the
notion did not emerge until the twentieth century’ (1993, p. 51). It is no surprise therefore
that all Muslim states have ratified the UN Convention on the Rights of the Child (CRC).
Also, the CRC is the only international treaty that makes specific reference to Islamic law in
its provisions (Article 20(3), CRC). Nevertheless, the issue of protecting children’s rights in
Muslim states is not free of controversy in relation to Islamic law, particularly regarding the
status of children conceived out of wedlock. Such children are often discriminated against and
suffer stigmatization in Muslim states and societies, which has been considered a violation of
children’s rights under international human rights law by the UN Committee on the Rights of
the Child.16
Safir Syed’s essay (Chapter 23) examines the impact of Islamic law on the implementation
of the CRC with particular reference to the plight of non-marital children conceived out of
wedlock under Islamic law. The essay begins by identifying that all the member states of the
OIC are states parties to the CRC, which places an international obligation on each of them
to ensure the rights guaranteed under the convention without discrimination. After noting
that international human rights law prohibits discrimination against non-marital children, the
essay proceeds to analyse the status of non-marital children under traditional Islamic law and
the reservations of Muslim states to the Convention. The essay concludes that ‘the Islamic law
currently in force in Islamic States parties in relation to non-marital children is in violation
of the non-discrimination provision of the Children’s Convention’ (p. 520) and goes on to
identify some possible ways of resolving and remedying the problem.
In his essay ‘Religious Legal Traditions, Muslim States and the Convention on the Rights
of the Child: An Essay on the Relevant UN Documentation’ (Chapter 24) Kamran Hashemi
provides a comprehensive comparative study of the provisions of the CRC in relation to
Islamic law and the state practice of Muslim states in that regard. He begins by noting the
important need to develop ‘an approach to religious interpretation that can integrate legal
traditions with modem universal values, as expressed in international human rights norms’
(p. 535). The essay observes that while, on the one hand, the CRC is the only international
treaty that makes reference to Islamic law, it is, on the other hand, also one of two treaties
that have received the most religious based reservations by the Muslim state parties. In the
end, Hashemi observes that ‘[i]t seems that even according to today’s standards, most of MLT
[Muslim Legal Tradition] are either consistent with or contribute to children’s rights’ (p. 566)
and that ‘Muslim States are making progress withdrawing from problematic MLT’ (p. 567)
that are in conflict with the CRC.

16 See, for example, the CRC Committee’s Concluding Observation on Kuwait, UN Doc. CRC/
C15/Add.96 (1998) at par. 23.
 International Law and Islamic Law xxxi

Rights of Religious Minorities

Discrimination against religious minorities is another problematic area of the human rights
debate in relation to Islamic law in Muslim states, and it has attracted much criticism from
human rights commentators (see Michel, 1986; Furman, 2000; Pink, 2005). The essay by
Javaid Rehman on ‘Accommodating Religious Identities in an Islamic State: International
Law, Freedom of Religion and the Rights of Religious Minorities’ (Chapter 25) argues that ‘it
is possible for Islamic states to find a great measure of compatibility with practices advocated
by Western states on issues concerning the rights of religious minorities and religious freedom’
(p. 571) and that the current problems of discrimination against religious minorities in many
Muslim states ‘are embedded not in the Islamic system of governance which the states are
claiming to follow, but in domestic politics and constitutional inadequacies’ (p. 572). The
essay critically examines the international framework on freedom of religion and rights of
religious minorities as well as the relevant rights under Islamic law and analyses the state
practices of three Muslim states - Pakistan, Iran and Sudan - pointing out ‘the difficulties,
dilemmas, and inherent contradictions that have existed within their practices and policies in
relation to the issue of religious freedom’ (p. 572). The essay concludes that while differences
may exist, ‘the Western paradigm of freedom of religion and rights of religious minorities and
the Sharia are not inherently antithetical to each other’ (p. 594).
In his essay ‘Non-Muslims in the Islamic State: Majority Rule and Minority Rights’
(Chapter 26) Mohamed Berween examines the principles of majority rule and minority rights
and argues that in that regard ‘an Islamic model is ideal for governing multi-religious, multi-
cultural, and multi-ideological societies’ (p. 599). Berween argues that the best way to deal
with the tensions between minorities and majorities in modem societies is the implementation
of the principle of ‘majority rule and minority rights’, claiming that this is ‘one of the main
processes that hold society together, and ... a political system cannot work effectively and
fairly without this principle’ (p. 599). He then analyses the conditions for an effective majority
rule that would ensure minority rights, before discussing the Islamic provisions on the right of
non-Muslims under Islamic law and citing some historical practices of Islamic states in that
regard. The essay concludes that ‘[i]n an Islamic state, although the Muslim majority rules,
it does not have the power to deprive the minorities of their basic rights or to stop them from
serving their society like any other citizen’ (p. 609) under Islamic law and that the ‘Muslim
majority must obey all Islamic laws’ (p. 609) without violating the rights and liberties of any
citizen.

State Practice

Since states are the main direct obligation bearers in international law generally, and in human
rights law specifically, the practice of states is very relevant in the realization of human rights
in respective states. Often what makes the difference in the relationship between international
human rights and Islamic law is the political will on the part of Muslim states to be committed
to the fulfilment of their international human rights obligations within their Islamic cultural
and legal dispensations. The last two essays in this volume thus examine general human rights
practices of relevant Muslim states in relation to the interaction between international human
rights law and Islamic law in the respective states.
xxxii International Law and Islamic Law

The first essay in Part XI, by Shadi Mokhtari, presents a general analysis of the debate on
human rights in the Islamic Republic of Iran in relation to Islamic law. Mokhtari begins by
observing that ‘[s]ince the Islamic Revolution in 1979, Iran has been the source of extensive
criticism by international human rights NGOs and U.N. human rights bodies’ (p. 613). She
then identifies that ‘Iran’s internationally cited human rights violations can be divided into
two categories’ (p. 613). The first one she categorizes as akin to ‘violations traditionally
associated with repressive regimes’ (p. 613) for which justification based on Islamic law is
weak. The second category, she argues, is related to ‘Iran’s codification and implementation
of various provisions found in traditional Shi’a jurisprudence’ (pp. 613-14), and thus relates
to Islamic law. According to Mokhtari, ‘[i]t is with respect to this class of human rights
violations that Iran’s reformist jurists and intellectuals have made the greatest contribution;
their theorizing and exegesis serves as a model for other parts of the Muslim world where civil
or criminal laws are also derived from traditional Islamic jurisprudence’ (p. 614). She argues
that while Iran used to dismiss criticisms of its human rights practices as a form of Western
imperialism, this changed with the election of President Khatami in 1997. She concludes
that ‘[w]hile Iran is frequently cited as a classic case of non-compliance with international
law, it is apparent that international human rights norms and consciousness have entered the
fabric of Iran’s religious and political culture and institutions’ and that, ‘since the election of
President Khatami, Iranian society has been actively involved in defining and redefining the
notion of rights both within Islam and in an Islamic society existing within a global context
with an ingrained human rights normative order’ (p. 621). She, however, acknowledges that
‘[conservatives have [still] retained control of several key sources of power’, which has
‘repeatedly been used to impede progress of the reformist agenda’ but argues, nevertheless,
that ‘[e]ven so, this situation does not detract from the significance of the transformations
described above’ and that the ‘theoretical debates that have enthralled Iranian society since
the election of Khatami constitute an historic conceptual turning point in the search for human
rights within an Islamic framework, not only for Iran, but for the Muslim world” (pp. 621-22)
(see also Mayer, 2000).
In his essay titled ‘A Macroscopic Analysis of the Practice of Muslim State Parties to
International Human Rights Treaties: Conflict or Congruence?’ (Chapter 28), Mashood A.
Baderin examines the general practices of Muslim state parties to international human rights
treaties, to determine whether the trend is that of conflict or congruence. The essay begins
by identifying the current strong cultural awareness and identity assertion of Muslim states
within modem internationalism, especially with respect to international human rights law.
Baderin raises the question of whether Muslim states thus create a stalemate for universalism
in human rights by their practices or whether there is some prospect for congruence in that
regard. Answers to this and other relevant questions are sought through a thematic analysis
of the practice of relevant Muslim state parties and the responses of relevant human rights
treaty bodies on the contentious issues. Baderin argues that ‘an objective consideration of the
arguments made by Muslim State Parties to the different international human rights treaties
in the course of their implementation can be an important element in achieving universalism
in human rights and aid international human rights protection in Muslim States’ (p. 627).
He concludes that although there are areas of fundamental differences on some issues, the
practices of the Muslim states do not reveal a case of total conflict and incompatibility and
that there is ‘a general acknowledgement of the importance of international human rights law
 International Law and Islamic Law xxxiii

by Muslim States, which suggests an emerging congruence instead of stalemate between the
practice of Muslim State Parties and international human rights law’ (p. 661) that must be
encouraged and further enhanced.

Conclusions

Despite the diversity of views on some of the issues addressed by the essays in this volume, they
collectively demonstrate that Islamic law is very relevant, in many ways, to the development
of modem international law generally and particularly in the Muslim world. An objective
comparative approach to debates on this subject as demonstrated by the essays in this volume
can certainly enhance a better understanding of the interaction between modem international
law and Islamic law. For example, there is, today, a general consensus among international
lawyers that a Security Council collective security mandate under Chapter VII of the UN
Charter, pursued multilaterally, would have stood a better chance of success in Iraq than the
US-led invasion that has resulted in the present disorder in Iraq. It is interesting to observe,
as noted in Sohail Hashmi’s essay (Chapter 8), that the Qur’an, which is the principal source
of Islamic law, specifically established a relative rule of collective measures as early as the
seventh century for dealing with apparent threats to peace and security by providing that:

If two parties among the Believers fall into a dispute, then you all should make peaceful settlement
between the two of them; but if one of them transgresses beyond bounds against the other, then you all
should fight against the transgressing party until it complies with the command of God. If it complies,
then you all should make peaceful settlement between the two of them with justice and you all should
act equitably. Indeed God loves those who are equitable. The Believers are but a single Brotherhood,
so you all should make peaceful settlement between your two (contending) brothers and be God-fear-
ing so that you may receive mercy. (Q 49:10; emphasis added)

This provision reflects the recognition of collective measures, similar to collective security
under modem international law, as a means for maintaining peace and security in human
and state relations under Islamic law. This demonstrates one of the many areas of common
ground that exist between Islamic law and modem international law, which need to be
positively explored to achieve a less controversial application of international law generally,
and collective security law especially, within the Muslim world. Looking back at debates
on Iraq before the US-led invasion in 2003, the important lesson is that the introduction and
accommodation of this Islamic legal perspective of collective measures into the discourse
on the enforcement of international collective security law could have enriched the debates
on the subject. Perhaps such an informed dialogue could have promoted a more in-depth
reflection on the necessary elements of collective security under the UN Charter and the role
of Muslim states in that regard, which could also have eliminated charges of an imposition of
a Western concept upon Muslim states during the early days of the Iraqi crisis.
The relevance of Islamic law to modem international law debates is evidenced by the volume
of increasing literature on the subject. Selecting which aspects of international law and which
essays to include in this volume was therefore a painstaking exercise. Relevant academic
literature on other aspects of the subject, which could not be covered in this volume, such
as International Sale of Goods, International Arbitration, the International Criminal Court,
xxxiv International Law and Islamic Law

Nuclear Weapons, Migration and Refugee Law, and International Institutions and Tribunals,
among others, is provided in the list of further reading at the end of this Introduction.

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Further Reading

Akaddaf, F. (2001), ‘Application of the United Nations Convention on Contracts for the International Sale
of Goods (CISG) to Arab Islamic Countries: Is the CISG Compatible with Islamic Law Principles?’,
Pace International Law Review, 13, 1, pp. 1-58.
xxxvi International Law and Islamic Law

Akbarzadeh, S. and Connor, K. (2005), ‘The Organization of the Islamic Conference: Sharing an
Illusion’, Middle East Policy, 12, 2, pp. 79-92.
Brower, C.N. and Sharpe, J.K. (2003), ‘International Arbitration and the Islamic World: The Third
Phase’, American Journal o f International Law, 97, 3, pp. 643-56.
Fatemi, S.M. (2005), ‘Who is a Refugee? Comparison of a Misconstrued Concept in International
Human Rights, S h i’i Fiqh and the Iranian Legal System’, International Journal o f Human Rights, 9,
2, pp. 183-223.
Lombardini, M. (2001), ‘The International Islamic Court of Justice: Towards an International Islamic
Legal System?’, Leiden Journal o f International Law, 14, pp. 665-80.
Nassar, A.E. (2003), ‘The International Criminal Court and the Applicability of International Jurisdiction
under Islamic Law’, Chicago Journal o f International Law, 4, 2, pp. 587-96.
Roach, S.C. (2005), ‘Arab States and the Role of Islam in the International Criminal Court’, Political
Studies, 53, pp. 143-61.
Thomas, T.S. (1997), ‘Prisoners of War in Islam: A Legal Inquiry’, The Muslim World, 87, 1, pp. 44-
53.
Twibell, T.S. (1997), ‘Implementation of the United Nations Convention on Contracts for the International
Sale of Goods (CISG) under Shari’a (Islamic Law): Will Article 78 of the CISG be enforced when the
Forum is in an Islamic State?’, International Legal Perspectives, 9, 1 & 2, pp. 25-92.
Yasmeen, S. (2001), ‘Is Pakistan’s Nuclear Bomb an Islamic Bomb?’, Asian Studies Review, 25, 2, pp.
201-15.
 Part I
General Principles of
International Law
 [1]
ISLAM AND THE MODERN LAW OF NATIONS
B y Ma j id K ha ddur i

School of Advanced International Studies,

The Johns Hopkins University

Muslim states have shown in recent years eagerness to participate in

international organizations and co-operate with other Powers to promote
international peace and security. This is a significant phenomenon in the
behavior of states whose traditional law of nations is so radically different
from the modern law of nations and the principles implied in the United
Nations Charter.
Islam, emerging in the seventh century of the Christian era as a con-
quering Power with world domination as its ultimate objective, refused to
recognize legal systems other than its own. It was willing to enter into
temporary peaceful relations with other states pending consummation of
its world mission. The 4‘temporary ’’ period endured for centuries, and it
proved itself more permanent than originally contemplated. During this
period Islam gradually tried to accommodate itself to the new conditions
of life, and its changing attitude helped to integrate the Muslim nations
into the larger community of nations. Thus Islam provides a precedent
for a prolonged period of hostile co-existence until accommodation has been
achieved. It is proposed to discuss in this paper the fundamental concepts
of the Muslim law of nations and the changes that have taken place which
made possible the integration of Muslim states into the modern community
of nations.
I
In contrast with the modern law of nations, which presupposes the ex-
istence of a family of nations composed of states enjoying sovereign rights
and equality of status, the law of Islam recognizes no other nation than
its own. Similar to the law of ancient Rome and the law of medieval
Christendom, the law of Islam was based on the theory of a universal
state. It assumed that mankind constituted one community, bound by one
law and governed ultimately by one ruler. The aim of Islam was the
proselytization of the whole of mankind. Islam ’s law for the conduct of
the state, accordingly, was the law of an imperial state which would recog-
nize no equal status for the party (or parties) with whom it happened to
fight or negotiate. It follows therefore that the binding force of such a
law was not based on mutual consent or reciprocity, but on the state’s own
interpretation of its political and religious interests, since Islam regarded
its principles of morality and religion as superior to others.1
Islam, probably more than any other religion, has the character of a
jural system which regulates the life and thoughts of the believer accord-
i See M. Khadduri, War and Peace in the Law of Islam 45 (Baltimore, 1955). Cf.
M. Hamidullah, Muslim Conduct of State 71 (3rd ed., Lahore, 1953).
4 International Law and Islamic Law

1956] ISLAM AND MODERN LAW OF NATIONS 359

ing to an ideal set of rules regarded as the only correct and valid one.
This system, unlike positive law, proceeded from a high divine source em-
bodying God’s will and justice. As the expression of the will of God, the
law of Islam (known as the Shari’a) is regarded as the most perfect, eter-
nal and just, designed for all time and characterized by universal ap-
plication to all men.2 The law that regulates the conduct of the Islamic
state is called the siyar, based on the same sources and having the same char-
acter as the shari9a. In theory the siyar was designed to be only a tem-
porary institution, on the assumption that Islam was ultimately to corre-
spond to the then known world, but failure to achieve this rendered the
siyar a permanent and an integral part of the sacred law. This law was
based on the Qur’anic revelations, Muhammadan tradition, analogy and
consensus. These sources are not unlike the sources of the modern law of
nations. The Qur’am, represents the authoritative source of law; tradi-
tions are equivalent to custom; rules and principles expressed in treaties
with non-Muslims fall in the category of agreement; and the opinions of
the caliphs and jurists, based on legal deduction and analogy, may be re-
garded as reason.3
On the assumption that the aim of Islam was the whole of mankind, the
world was sharply divided, under the law of Islam, into the dar al-Islam
(abode or territory of Islam) and the dar al-harb (abode of war or çnemy
territory). The first corresponded to the territory under Islamic sover-
eignty. Its inhabitants were Muslims, by birth or conversion, and the
people of the tolerated religions (Jews, Christians and Zoroastrians) who
preferred to remain non-Muslims at the sacrifice of paying a poll tax.4 The
dar al-harb consisted of all the states and communities outside the territory
of Islam. Its inhabitants were called harbis or people of the territory of
war.
In theory the dar al-Islam, was always at war with the dar-al-harb. The
Muslims were under legal obligation to reduce the latter to Muslim rule
in order to achieve Islam’s ultimate objective, namely, the enforcement of
God’s law (the Shari9a) over the entire world. The instrument by which
the Islamic state was to carry out that objective was called the jihad (popu-
larly known as holy war), which was always just if waged against the in-
fidels and the enemies of the faith. Thus the jihad was the Islamic bellum
justum .5 But the jihad did not always mean war, since Islam’s objective
might be achieved by peaceful as well as violent means. Thus the jihad
may be regarded as an intensive religious propaganda which took the form
of a continuous process of warfare, psychological and political, no less than
strictly military. From a legal viewpoint it meant a permanent state of
war between Islam and enemy territory. But this state of war should not
be construed as actual hostilities ; it was rather equivalent, in Western legal
2 See Abdur Bahim, Principles of Muhammadan Jurisprudence 52-53, 56-58 (Madras,
1911) ; Khadduri, op. cit. 22-27.
3 See Hamidullah, op. cit. 17-38.
4 For a discussion of the status of non-Muslims under Muslim rule, see A. S. Tritton,
The Caliphs and Their Non-Muslim Subjects (London, 1930) ; and Khadduri, op. cit.
Ch. 17. s See ibid. Ch. 5.
 International Law and Islamic Law 5

360 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 50

terminology, to non-recognition. This, however, did not imply, as in the

modern law of nations, the impossibility of initiating negotiations and con-
cluding treaties, for such actions were considered neither to imply equality
between the two contracting parties nor necessarily to possess a permanent
character. The nearest equivalent, perhaps, to this situation is the recog-
nition of insurgency which neither precludes an intention of later de facto
or de jure recognition nor approval of the regime under insurgency; it
merely means that an authority to enforce the law in a certain territory
is needed under certain circumstances.6 The Islamic state, in like manner,
in entering into diplomatic negotiations with a non-Muslim state, did not
intend to recognize that state, but merely to admit that a certain authority
or authorities were needed in the dar al-harb so long as it remained beyond
Muslim sovereignty.
Peace was the short interval when the jihad was in suspense. This
period, according to the most liberal estimate, was not to last more than
ten years. Permanent peace was to be achieved only when the dar al-harb
would have been reduced to non-existence and thus the raison d ’etre of the
jihad, except perhaps for combatting Islam’s internal enemies, would
eventually have disappeared. The Islamic law of peace, which was origi-
nally designed to regulate the relations of Muslims with enemy territories
during non-hostile periods, was in theory only a temporary institution
until dar al-Islam should comprise the whole world. In practice, however,
the jihad underwent certain changes in its meaning to suit the changing
circumstances of life. Islam often made peace with the enemy, not al-
ways on its own terms. The jurists began to interpret the law with a view
to justifying suspension of the jihad. The new conception of the jihad
did not necessarily imply the abandonment of the jihad duty; it merely
meant the entry of the obligation into a period of suspension. It assumed
a dormant status, from which the head of state may revive it at any moment
he deems necessary. In practice, however, the more habituated the Muslims
became to a dormant jihad, the more reconciled they tended to be to the
permanency of a law of peace.7
II
The rise of the Ottoman Empire (A.D. 1300) revived Muslim power and
gave fresh impetus to the development of the Muslim law of nations. The
Ottoman sultans followed the practice of issuing decrees, having the force
of law, which supplied valuable additions to Islamic law and helped to ac-
commodate it to the new circumstances of the Muslim world. This method
of legislation enabled the sultans to regulate their relations with the Chris-
tian Powers with whom they had become closely connected after Islam’s
expansion into Eastern Europe. When the Portuguese and Spanish ex-
plorers diverted European commerce from the Eastern Mediterrean by their
new discoveries, the Ottoman sultans offered liberal terms in their commer-
cial treaties with European states in order to revive commercial relations
«H . Lauterpacht, Recognition in International Law, Ch. 16 (Cambridge, 1947).
t See M. Khadduri, op. cit. 65.
6 International Law and Islamic Law

1956] ISLAM AND MODERN LAW OP NATIONS 361

with Europe.8 The Treaty of Alliance between Sultan Sulayman the

Magnificent and Francis I, King of France, signed in 1535, although not
the first treaty that helped to attract Western merchants, was by far the
most important.
The treaty of 1535 provided innovations in the relations between Chris-
tian Powers and Islam in early modem times.9 The preamble treated the
King of France and his representatives as equals with Sultan Sulayman
and his representatives. Article 1 provided for the establishment of a
“ valid and sure peace’’ (bonne et sure paix) between the Sultan and the
King “ during their lives,” and granted reciprocal rights to the subjects
of each monarch in the territory of the other. The French were to enjoy
exemption rights from the poll tax, the right to practice their religion,
and the right of trial in their own consulates by their own law. The King
of France was also given the right to
send to Constantinople or Pera or other places of this Empire a bailiff
—just as at present he has a consul at Alexandria. The said bailiff
and consul shall be received and maintained in proper authority so
that each one of them may in his locality, and without being hindered
by any judge, qadi, soubashi, or other according to his faith and law,
hear, judge, and determine all causes, suits and differences, both civil
and criminal, which might arise between merchants and other subjects
of the King (of France). . . . The qadi or other officers of the Grand
Signior may not try any difference between the merchants and subjects
of the King, even if the said merchants should request it, and if per-
chance the said qadis should hear a case their judgment shall be null
and void. [Article 2.]
The traditional rule of the law of Islam, it will be recalled, permitted
years. The Ottoman sultans modified this rule by extending this period
to the lifetime of the sultan who made the treaty. Further, the treaty
of 1535 established the precedent of making treaties on the basis of equality
and mutuality of interests. This might be regarded, as many publicists
peace to be established with the enemy for a period not exceeding ten
have maintained, as a specific privilege given to the King of France before
other Christian princes were accorded similar status. Article 15, however,
stated that such a privilege would be granted to other monarchs, which
indicated that the Sultan sought to establish a principle which would apply
to other Christian princes as well. The text of Article 15 follows :
The King of France has proposed that His Holiness the Pope, the King
of England, his brother and perpetual ally, and the King of Scotland
8 It has been maintained that, because the Ottoman sultans discouraged trade with
Europe after they controlled the Eastern Mediterranean, the Portuguese and Spanish
explorers sought new routes to the Orient which led them to new discoveries. For a
critical discussion of this point, see A. H. Lybyer, “ The Ottoman Turks and the Routes
of Oriental T rade/ ’ 30 English Historical Review 577-588 (1915).
0 For the text of the treaty, see Baron I. de Testa, Recueil des Traités de la Porte
Ottomane, Vol. I, pp. 15-21 (Paris, 1864); and G. Noradounghian, Recueil d ’Actes
Internationaux de l ’Empire Ottoman, Vol. I, pp. 83-87 (Paris, 1897). For an English
translation, see Nasim Sousa, The Capitulatory Regime in Turkey 314-320 (B alti-
more, 1933).
 International Law and Islamic Law 7

362 THE AMERICAN JOURNAL OP INTERNATIONAL LAW [Vol. 50

should be entitled to adhere to this treaty of peace if they please, on

condition that when desirous of doing so they shall within eight months
from date send their ratifications to the Grand Signior and obtain his.10
The treaty of 1535 modified another principle of the law of Islam by
granting Christians exemption from the poll tax. The traditional rule
was that non-Muslims, if residing in Muslim territory more than one
year (in this case they would be treated on the same footing as permanent
non-Muslim residents), had to pay the poll tax.11 With respect to the
right granted to Frenchmen (later extended to other Europeans) of being
tried by their own consulates, the treaty at first gave expression to the
classical principle of the personality of the law; but the modification of
this principle in subsequent treaties (especially that of 1740), by which
all lawsuits involving foreigners and Muslims were to be handled by foreign
consulates,12 greatly changed the fundamental rule that Islamic law must
be applied in such cases.
The treaty of 1535, concluded at a time when the modern law of nations
was at the beginning of its development, might have provided an excellent
opportunity to reconcile Christian and Muslim law. However, the politi-
cal motives which brought the treaty to life were not conducive to accom-
modate the one to the other. Francis I was in dire need of support against
his Christian rival, Charles V, and Sulayman, after his unsuccessful attack
on Vienna (1529), sought to divide the combination against him by cre-
ating dissension among Christian princes. This alliance, which helped in-
directly to foster the Reformation, created resentment for the schism within
Christianity as well as for the co-operation of a Christian prince with the
infidel.13
Nor were the European jurists and publicists, who advocated a new law
of nations based on the principles of territorial sovereignty and equality
among nations, prepared to regard the Ottoman Empire as part of the
European community. The traditional viewpoint of Christendom seemed
to take it for granted that Islam lay outside the pale of the newly devel-
oping law of nations. Albericus Gentilis (1552-1608), who was not in
favor of religious wars and criticized Spain for making war on the Indians,
attacked Francis I for making an alliance with the Turks.14 Even Grotius,
who emphasized the law of nature as the basis of the modern law of nations,
advocated discriminatory treatment against non-Christian states. He ar-
gued that it was permissible by the law of nature to make treaties with the
enemies of the Christian religion, but advocated that all Christian princes
io The King of England preferred to sign a separate treaty with the Sultan in 1580,
awhile the others failed to a&heTe to the treaty.
For the law governing the status of non-Muslims in Muslim territory (usually called
dhimmis), see M. Khadduri, op. cit. Ch. 17.
12 See Sousa, op. cit. 78-86.
13 See D. J. Hill, A History of Diplomacy in the International Development of Europe,
Vol. II, pp. 435, 439-440 (New York, 1906) ; and D. M. Vaughan, Europe and the Turk
134-146 (Liverpool, 1954).
14 Gentilis, De Jure Belli, Lib. I, C. 12 (1588). See also T. A. Walker, A History of
the Law of Nations, Vol. I, pp. 254, 271-272 (Cambridge, 1899).
8 International Law and Islamic Law

1956] ISLAM AND MODERN LAW OF NATIONS 363

should combine against the advances of the enemies of the faith.15 In its
formative period, the modern law of nations developed principles that
governed the relations of Christian nations alone, that is, nations that en-
joyed the benefits of Christian civilization. Thus it was taken for granted
that the rights which that law would protect were only the rights of
*1civilized ’’ Powers.16
The Utopians were no less concerned with the problem of a non-Christian
Power in Europe than other publicists. They sought to establish Euro-
pean peace by forming a combination of Christian princes against the
Turks. Several schemes were laid down during the seventeenth and
eighteenth centuries, like that of Dubois in medieval times, which had the
common appeal to Christian princes to compose their differences and unite
against the Turks. Thus William Penn considered the subjection of the
Turks as a prerequisite for the general pacification of Europe.17 Emeric
Crucé and Abbé de Saint-Pierre, however, in their schemes for a general
union of states, thought that the Turks might be included. Saint-Pierre
contended that such a union would not necessarily lead to conciliation of
the various religions, but it would help to establish peace between states
with different religions.18 Perhaps the most elaborate of such schemes for
establishing peace in Christendom at the expense of the Turks was that
of Cardinal Alberoni, Prime Minister of Spain, in a book entitled Testa-
ment Politique du Cardinal Jules Alberoni (Lausanne, 1753), in which he
sought to organize a general diet, composed of representatives of European
princes, for discussing all matters of common concern to Christendom.
Cardinal Alberoni maintained that before such a plan could ever be-
come a reality the Turks must first be expelled from Europe by a com-
bination of Christian forces. For this purpose he published a pamphlet
in German and English entitled Cardinal Alberoni’s Scheme for Reducing
the Turkish Empire to the Obedience of Christicm Princes (London,
1736).19 For achieving the general scheme of peace Alberoni stated:
. . . It would seem to be for the absolute interest of whole Christian
Europe that the attention of the emperors of Germany should be di-
rected solely to the defense of their territory against the power of the
Ottoman Empire, and to seek to extend their dominions in that direc-
tion only. . . . They would have the means to induce the Princes of
the Empire to combine all their forces for the purpose of conquering
Turkish territory by rewarding these Princes with some of the domains
is Grotius, Be Jure Belli ac Pacis, Lib. II, C. 20 (1625). See also Walker, op. cit.,
Vol. I, pp. 300, 306-307.
is See E. P. Cheyney ‘ ‘ International Law under Queen Elizabeth, ’1 20 English H is-
torical Review 660 (1905).
17 W. Penn, Essay on the Present and Future Peace of Europe (London, 1693).
is Abbé de Saint-Pierre, Project pour rendre la paix perpétuelle en Europe (Utrecht,
1713). For a survey of the utopian plans of peace, see S. J. Hemleben, Plans for "World
Peace Through Six Centuries (Chicago, 1943).
is The original, apparently lost, has been preserved in an Italian translation. For an
English rendering of the Italian manuscript, see Theodore Henckels, “ Cardinal Al-
beroni }s Scheme for Reducing the Turkish Empire to the Obedience of Christian
Princes, 79 7 A.J.I.L. 83-107 (1913).
 International Law and Islamic Law 9

364 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 50

belonging to the House of Austria, in Germany, as they were making

progress toward the Orient. . . .

It would seem that, through the execution of this system, all the old
sources of quarrels between the Houses of Austria and Bourbon might
be entirely removed. Nothing would prevent them from acting con-
certedly in order to drive the infidels out of Christendom, to settle all
differences pending between their neighbors, to render justice to whom
it is due and to establish commerce on a footing of equality which en-
courages industry and honesty among all nations. Thus, enjoying
peaceful possession of their legitimate states the Christians will then
think of relieving their subjects, harassed by wars or by apprehensions
of wars which follow conditions of uncertainty and jealousy. . . .
They will have a beautiful open field, within which to exercise their
power and their prowess against the infidels, and to set their conscience
at peace for the shedding of Christian blood of which the indecision of
their pretensions has been responsible in the course of the latter cen-
turies.20
It is a tempting conclusion to make that at this period neither Islam
nor Christendom had yet been prepared to meet on a common ground and
modify their religious principles for the purpose of developing a law of
nations based on equality and reciprocity. The distrust and lack of mu-
tual respect were not conducive to an understanding between Islam and
Christendom. Their conduct of foreign relations tended to be Machiavel-
lian and coercive. European diplomats at the Ottoman Porte often re-
sorted to bribery and intrigue in order to achieve their ends, while the
Ottoman viziers frightened and misused European envoys to extract dis-
closure of their instructions.21 Thus the relations between Islam and
Christendom showed no appreciable improvement over the precedent es-
tablished by Sulayman the Magnificent and Francis I. The factors gov-
erning their relations depended less on law than on the relative strength
and weakness of either side.
I ll
Had the Ottoman Empire been integrated into the European system
during the formative period of the law of nations, this law might have
become universal in shape at an earlier period. When, however, the mod-
ern law of nations, after the Treaty of Westphalia (1648), began to develop
along secular lines, based on the principle cuius regio, eius religio, the en-
counters between Christendom and Islam were no longer at par. The
growing strength of Europe and the secularization of its legal and political
systems were matched by a steady decline in Muslim power. The readiness
of Islam at the height of Ottoman power to reconcile its interests with those
of Christendom was superseded by the fear of a nation in decline lest its
20 For a full statement of this system, see ibid. 62-66.
21 For an account of the experiences of European envoys in Turkey, see the memoirs
of the Ambassador of Austria, de Busbecq, in Constantinople, in C. T. Forster and F.
H. B. Daniell, The Life and Letters of Ogier Ghiselin de Busbecq, Vol. I, pp. 176-177
(London, 1881); and Queen Elizabeth’s Ambassador to Turkey, Sir John Finch, in
G. F. Abbott, Under the Turk in Constantinople (London, 1920).
10 International Law and Islamic Law

1956] ISLAM AND MODERN LAW OF NATIONS 365

contact with non-Muslim nations should lead to its destruction. The sul-
tans, it is true, were quick to adopt Western weapons and military skills
—which were not only permitted but encouraged by the law of Islam—but
they were not prepared to adopt the new political and legal concepts which
would materially change the juridical structure of Islam.
During the latter part of the eighteenth century the encounters between
Christendom and Islam proved to be a disaster for Islam. Its defeats came
as a surprise to the European Powers who had attained their military and
diplomatic victories with relative ease. This resulted in the unfavorable
revision of the treaty of 1535 in 1740, granting France the right of pro-
tection over the Christian nationals of the Sultan and the similar rights
granted to Russia in the Treaty of Küchük Kaynarja in 1774. The Euro-
pean Powers, on their part, when they dealt with the Muslim world, were
not a little surprised to find that Islamic civilization was so “ inferior’’ and
so different from their own, without appreciating the differences in the
cultural values and the relative state of decadence. Taking a short-range
view of their interests, they preferred to attain immediate advantages
rather than to deal with Islam on a basis of equality and reciprocity. The
European Powers found it more expedient to leave behind them the rules
and practices of the modern law of nations and to resort to force whenever
diplomacy failed them. Thus neither were the European Powers prepared
to regard Muslim countries as falling under the operation of their law of
nations nor would Islam recognize Christian rule whenever its territory
fell into European hands. Islamic law regarded non-Muslim rule over
Muslim lands as an anomaly permitted only under force majeure, but the
caliph was under legal obligation to restore these lands whenever Islam
could regain its strength. The European Powers, in their contacts with
Muslim countries, treated them as backward areas and savage communities
to whom the principles of the law of war did not apply. Conquest of Mus-
lim territory, like conversion to Christianity, was considered meritorious.22
After the Napoleonic wars, when Ottoman territories became a bone of
contention among rival Powers, the Western Powers deemed it necessary to
invite the Sultan to join the community of European nations for the pur-
pose of maintaining the integrity of his empire by affording him the bene-
fits of the law of nations. When such an invitation was proposed at the
Congress of Vienna, Russia objected on the grounds that Turkey was bar-
barous. “ Barbarous as it is,” retorted Castlereagh to Tsar Alexander,
“ Turkey forms in the system of Europe a necessary evil.” Seeking a free
hand in the Sultan’s dominions, Russia insisted that Turkey be kept out
of the community of European nations.
Nor were the Western jurists agreed as to whether Turkey had become
a subject under the law of nations despite the fact that she had established
for a long time diplomatic intercourse with Europe. The jurists were
doubtful as to Turkey’s ability to meet her obligations in accordance with
European standards. In The Hurtige Hane, Sir William Scott argued
22 See Q. Wright, “ The Bombardment of Damascus,’ ’ 20 A.J.I.L. 266 (1926); Man-
dates under the League of Nations 7-8 (1930).
 International Law and Islamic Law 11

366 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 50

that the law of nations should not be applied to nations outside Europe
4 ‘in its full rigour ’’ ; for, as he went on to say,
. . . it would be extremely hard on persons residing in the kingdom of
Morocco, if they should be held bound by all the rules of the law of
nations, as it is practised among European states. On many accounts
undoubtedly they are not to be strictly considered on the same footing
as European merchants; they may, on some points of the law of na-
tions, be entitled to a very relaxed application of the principles, estab-
lished by long usage, between the states of Europe, holding an inti-
mate and constant intercourse with each other.23
In The Madonna del Burso, Sir William Scott reiterated a similar opin-
ion in more general terms:
The inhabitants of those countries (Ottoman Empire) are not profes-
sors of exactly the same law of nations with ourselves : in consideration
of the peculiarities of their situation and character, the Court has re-
peatedly expressed a disposition not to hold them bound to the utmost
rigour of that system of public law, on which European states have
so long acted, in their intercourse with one another.24
Even after the Ottoman Empire had been admitted to the Concert of
Europe in 1856, some jurists, such as Lorimer, continued to regard her
beyond the operation of the law of nations.25 Other jurists, like T. E.
Holland and W. E. Hall, emphasized differences in the degree of civiliza-
tion, not religion, as a bar to full recognition, and this, they held, would
be merely a transitional stage until non-European states would become
members of the family of nations.26 On the other hand, there were jurists
who held that since the Ottoman Empire had maintained diplomatic inter-
course with European Powers for many centuries and concluded treaties
with them, the general body of the law of nations was accordingly ap-
plicable.27 There is, however, no clear evidence to indicate that during
the first half of the nineteenth century Turkey and other Muslim countries
had enjoyed the full advantage of the law of nations. Writing in 1845,
Wheaton was perhaps reflecting this state of affairs when he said:
23 The Hurtige Hane, High Court of Admiralty, 1801, 3 C. Eob. 324. See J. B. Scott
and W. H. E. Jaeger, Cases on International Law 62-64 (1937).
24 The Madonna del Burso, High Court of the Admiralty, 1802, 4 C. Rob. 169. See
Scott and Jaeger, op. cit. 65-66. In The Fortūna, 2 C. Eob. 92 (1803), Sir William
Scott said : ‘1Considering this case as merely between the British and Algerian claimants,
I do not, at the same time, mean to apply to such claimants the exact rigour of the law
of nations as understood and practised among the civilized states of Europe; it would
be to try them by a law not familiar to any law or practice of theirs. . . See also
The Kinders K inder, High Court of Admiralty, 1799, 2 C. Rob. 88; and The Helena,
High Court of Admiralty, 1801, 4 C. Rob. 3.
25 James Lorimer, Institutes of the Law of Nations, Vol. I, pp. 101-102, 123-124
(Edinburgh, 1883). In another work Lorimer rejects the ethical basis of Islam as
suitable for a political system (J. Lorimer, Studies National and International 132-147
[Edinburgh, 1890]).
26 See T. E. Holland, Lectures on International Law 38 (ed. Walker, London, 1933) ;
and W. E. Hall, International Law 48-49 (8th ed., Higgins, Oxford, 1924).
27 See H. A. Smith, Great Britain and the Law of Nations, Vol. I, pp. 16-17 (London,
1932).
12 International Law and Islamic Law

1956] ISLAM AND MODERN LAW OF NATIONS 367

In respect to the mutual intercourse between the Christian and

Mahommedan Powers, the former have sometimes been content to take
the law from the Mahommedans, and in others to modify the Interna-
tional Law of Christianity in its relation to them. Instances of the
first may be found in the ransom of prisoners, the rights of ambassa-
dors, and many others where the milder usages established among
Christian nations have not yet been adopted by the Mahommedan
Powers. On some others they are considered as entitled to a very re-
laxed application of the peculiar principles established by long usage
among the states of Europe in constant intercourse with one another.28
During the Crimean War (1854-56) the Western Powers had realized
that Turkey’s continued exclusion from the European community had ac-
centuated the rivalry over the “ Sick Man’s ” territories; it had also be-
come inconsistent with the trend of an expanding famliy of nations which
had comprised countries outside Europe. Thus, on the invitation of the
six Powers signatory to the Treaty of Paris (March 30, 1856), the Sultan
was formally admitted to “ participate in the public law and concert of
Europe” (Article 7). Western jurists have been confused as to the mean-
ing of this article. Most of them have construed the clause “ to participate
in the public law and concert of Europe, ’’ as one admitting Turkey to the
advantages of the law of nations.29 Few have argued that it merely meant
her admission to the European community of nations and that it had no
bearing on the subject of her participation in the operation of the law of
nations.30 Turkey’s exclusion from the Concert of Europe in 1815 had
perhaps postponed her participation in the operation of the law of nations ;
but her admission to the Concert in 1856 must have fully entitled her
(subject to foreign capitulatory rights which were not abolished until 1924)
to the full advantages of that law.31 The Ottoman Empire and other Mus-
lim nations had been recognized only by slow stages as subjects of the law
of nations, and the European Powers, perhaps not conscious at first of this
process, had slowly come to this conclusion.

IV
Although Europe had at last accepted the Ottoman Empire as a member
of the European community of nations, the internal structure of the Em-
pire had not yet been sufficiently changed to adapt itself to Western prac-
tices in the conduct of foreign relations. In his diplomatic relations with
the West, the Sultan permitted only friendly Powers to maintain diplo-
matic missions in his capital, although the practice of maintaining per-
manent diplomatic missions had been in vogue in Europe since early
28 Henry Wheaton, History of the Modern Law of Nations 555 (1845).
29 See W. E. Hall, Treatise on International Law 48 (ed. Pearce Higgins, Oxford,
1924).
30 Hugh M. Wood, “ The Treaty of Paris and Turkey’s Status in International Law,”
37 A.J.I.L. 262-274 (1943).
31 In The S. S. Lotus (P.C.I.J., 1927), in a dissenting opinion by Judge Weiss, Turkey
was not considered as a subject of the law of nations until the Treaty of Lausanne
(July 24, 1923).
 International Law and Islamic Law 13

368 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 50

modern times. In the eighteenth century the Sultan approved of this

practice on a reciprocal basis. After 1792 the Sultan himself established
permanent missions in Paris, London, Vienna and Berlin.
For a long while the Sultan had been advised by Western sympathizers,
as well as by Muslim liberals, to introduce reforms along Western lines in
order to enhance the prestige of his Empire among the Powers and to dis-
charge his duties as the head of a modern state. But the Sultan, who was
willing to adopt the new weapons and military skills of the West, was not
prepared to adopt Western concepts and practices which would compro-
mise or. materially change the law of Islam. Faced with a threat from
within—provincial uprisings, local claims for independence, and the insist-
ence of liberals on reform—the Sultan could afford as little to please the
conservatives as to reject the pleadings of Western sympathizers to
strengthen his Empire against the Russian threat. This constructive
approach to strengthening the Empire along Western lines is collectively
known as the Tanzimat, or Reform Movement. For it became quite obvious
that the Empire had either to change or to collapse.
Under pressure from the Powers, the Sultan permitted freedom of navi-
gation through the Straits, first to Russia (in the Treaty of Küchük
Kaynarja, 1774),32 and then to other Powers. This right of passage was
at first limited to certain merchant vessels but was later extended as a rule
to all other Powers.33 The so-called Ancient Rule of the Ottoman House,
which closed the Straits to all warships of foreign Powers, remained ef-
fective until it was modified by several international instruments during
the nineteenth century.84 A far more radical change, also carried out
under Western pressure, was in improving the position of the Christian
subjects of the Sultan by granting France (1740), Russia (1774), and
other Powers the right to “ protect” these subjects by making representa-
tions to the Sultan regarding their conditions. The implementation of
these commitments was embodied in the Tanzimat decrees, beginning with
the promulgation of the K hatti Sharif Gulkhanê of November 3, 1839, and
followed by other enactments until they were finally incorporated in an
elaborate constitutional document issued by the Sultan on December 23,
1876. These instruments covered a variety of legal reforms, but neither
the Tanzimat decrees nor the Constitution of 1876 were destined to mate-
rialize, owing to the strong resistance of traditional Islam to Western con-
cepts of law and justice.35
The process of social change, however, pays no attention to stereotyped
practices or abstract doctrines. The Ottoman Empire had either to change
32 Article 2.
33 See Erik Brüel, International Straits, Vol. II, pp. 272-276 (London and Copen-
hagen, 1947).
3* For a comprehensive treatment of the various treaties governing the status of the
Straits, see J. T. Shotwell and F. Deâk, Turkey at the Straits (New York, 1940). See
also Serge Goriainov, La Question d 'Orient à la Veille du Traité de Berlin (ed. B. Nolde,
Paris, 1948).
35 See E. Engelhardt, La Turquie et le Tanzimat (2 vols., Paris, 1882-84) ; F. E.
Bailey, British Policy and the Turkish Reform Movement (Cambridge, Mass., 1942).
14 International Law and Islamic Law

1956] ISLAM AND MODERN LAW OF NATIONS 369

or fall to pieces. A few Muslim thinkers who became impatient with the
Sultan’s despotism, enforced in the name of Islam, sought change in the
character of the Islamic state. Western constitutionalism and nationalism
found their way into Muslim society and the new generation advocated
the principle that religion was no longer adequate as the basis of the state.
A constitutional movement, which had been long in the making, succeeded
at last in overthrowing the traditional Ottoman regime in 1908 and laid
the basis of a modern Muslim state. This change introduced the secular
conception of authority and the doctrine that the nation is the source of
authority. Consequently, the sacred law of Islam ceased to be the sole
authoritative source of the conduct of the state. But no attempt was made
at this stage to separate the religious from the secular powers, nor was
serious thought ever given to reconciling Islam with the new concepts of
law and authority.
The triumph of nationalism as the basis of Muslim polity resulted in the
destruction of the Ottoman Empire following World War I and the aboli-
tion of the Caliphate (1924), thus permitting several Muslim states to
emerge as new sovereign entities. Kemalist Turkey took the lead in this
matter and an Egyptian publicist, Shaykh Ali Abd al-Raziq (although his
doctrine was officially rejected by the Egyptian Government), supplied the
legal and doctrinal justification of it.36 He argued that Islam was not
originally designed by the Prophet Muhammad as a political system (al-
though circumstances necessitated that he should exercise political and
military functions which were distinct from his primary religious func-
tions as a prophet), but, like Christianity, as a system of religion for the
regulation of the spiritual life of the Muslims. The significance of Raziq ?s
theory lies in permitting the heads of Muslim states to conduct foreign
relations in accordance with rules and practices not necessarily derived
from the sacred law, since this matter lay outside the domain of religion.
His interpretation gave validity not only to the action of the Kemalist
regime in Turkey, but also justified the conduct of foreign relations of the
very state which enforced the act of the disciplinary council that rejected
his theory.
Raziq’s theory was challenged by another Egyptian who was still study-
ing law in Paris at the time it was rejected in Cairo. Sanhuri chose as the
subject of his dissertation, the theme of which is indicated in its title,
“ The Caliphate: Its Development Toward an Oriental League of Na-
tions.” 87 He rejected Raziq’s theory that political authority was not an
integral part of Islam, but he saw no reason why Muslim public law could
not develop to fit modern conditions of life. He therefore suggested that
the Caliphate, which had undergone many changes in the past, was still
capable of further change and might develop into an Oriental league of
3» See Ali Abd al-Raziq, al-Islam wa Usui al-Hukm (Cairo, 1925). For a discussion
of Raziq ’a theory, see C. C. Adams, Islam and Modernism in Egypt 259-267 (London,
1933).
37 A. Sanhoury, Le Califat: Son Évolution vers une Société des Nations Orientale
(Paris, 1926).
 International Law and Islamic Law 15

370 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 50

nations. Although Sanhuri disagreed with Raziq on the internal legal

superstructure, he seemed to support, at least in the external relations of
Islam, the secular viewpoint, namely, the full participation of the Muslim
states in the international community in accordance with the modern law
of nations.38
Raziq’s theory of government has been tacitly accepted as the basis of
the modern Muslim state. Although several Muslim entities had already
seceded from Muslim unity, it was not until the dissolution of the Ottoman
Empire and the abolition of the Caliphate that Muslim national states
emerged as modern states. Kemalist Turkey formally recognized this fact
in its National Pact as well as in the Treaty of Lausanne (June 24, 1923),
by virtue of which she voluntarily gave up territories in which the majority
of the population were not Turks. This process of complete break-up,
whether regretted as the dissolution of Islamic unity or hailed as the pro-
gressive evolution toward a new community of states, is probably the most
significant landmark in the development of Islamic polity since its forma-
tive period. Its accomplishment was significantly noted by none other than
Rüstü Aras, representative of the mother country, who presided over the
special meeting of the League Assembly on May 26, 1937, and welcomed
the admission of Egypt as having ‘4completed the successive stages of a
progress of evolution as peaceful as it is glorious. ’ ’ 39

V
The secular approach to the conduct of foreign relations has been ac-
cepted by almost all Muslim states, whether completely secularized in their
internal legal structure, as in the case of Turkey, or still recognizing the
skari’a as their basic law, as in Saudi Arabia and the Yaman. Even those
publicists who objected to the secularization of the internal law of Islam
have accepted marked departures from the traditional Muslim law gov-
erning Islam’s foreign relations. Almost all of them, who often invoked
the jihad against Western encroachment on Islam, repudiated the idea that
the jihad is offensive in character.40 Some of them have gone so far as to
argue that the law governing Islam’s relations with other nations, as orig-
inally expounded by Muhammad, was based on the principle of the peace-
ful—not the hostile—relations among nations and that its humane rules
and practices have anticipated (in certain instances surpassed) the rules
and practices of the modern law of nations.41
The active participation of Muslim states in international conferences,
in the League of Nations, and the United Nations and its agencies, demon-
strates that the dar al-Islam has at least reconciled itself to a peaceful co-
ss m d . 577 ff.
39 Monthly Summary of the League of Nations, Vol. 17, p. 91 (May, 1937).
40 See Shaykh Rashid Rida, al-Khilafa (Cairo, 1922); French translation by H.
Laoust, Le Califat (Beyrouth, 1938).
41 See Abd al-Wahhab Khallaf, al-Siyasa al Shar’iyya 61-100 (Cairo, 1931); Sayyid
Qutb, al-Adala al Ijtim a’iyya 92, 94-95 (Cairo, 1945); English translation by J. B.
Hardie, entitled Social Justice in Islam 91, 93-94 (Washington, 1953).
16 International Law and Islamic Law

1956] ISLAM AND MODERN LAW OF NATIONS 371

existence with, dar al-harb. The various declarations of Muslim statesmen

and representatives in international conferences as well as in international
organizations, although frequently directed against Western interference
in handling Muslim affairs against Islam’s interests, indicate on the whole
Islam’s willingness to take active part in the promotion of international
peace and security and its support for existing international organiza-
tions.42 Great satisfaction was shown throughout the Muslim world when
two Muslim jurists were elected to the bench of the International Court of
Justice. Muslim representatives have shown great eagerness to serve in
the various agencies of the United Nations and several international com-
missions—evidence which bears witness to the fact that Islam has at last
accepted integration into the larger international community.
A few Muslim thinkers have recently argued that Islam can go a step
further in making a contribution toward world peace and stability by re-
viving certain Muslim concepts of law and justice. This trend has been
called neo-Panislamism, and, since the creation of Pakistan in 1947, has
become a notable movement. In domestic affairs it is reflected in the rec-
ognition of the sacred law as a primary source of legislation in the new
Syrian Constitution (1950, 1953) and in the new civil codes of Syria,
Egypt and Iraq. On November 2, 1953, the Constituent Assembly of
Pakistan declared that country to be an Islamic Republic. Even Turkey
has relaxed certain measures against religious activities, thus giving im-
petus to Islamic revival. In the international sphere, there has been a
revival in holding Islamic conferences (such as those in Pakistan and
Arabia), the exchange of visits among Muslim statesmen, and the forma-
tion of certain regional pacts and alliances—all of these are signs indicative
of a desire to co-operate as a Muslim bloc for the promotion of interna-
tional stability within the international community.
Muslims, however, are quite aware that in the present state of interna-
tional relations it is not possible to revive the traditional religious approach
to the conduct of foreign relations, nor is it in their interest to do so, as
the circumstances permitting the association of religion in the relations
among nations have radically changed. Not only has the jihad become an
obsolete weapon, but also since Islam has in the past exhausted its power,
and its initiative has passed to other great Powers, it has become permis-
sible—even necessary, according to the principles of Islamic law—that
Islam look after its interests in accordance with the changed circumstances
of life.43 If certain publicists have insisted on a more active rôle for the
shari9a in the domestic affairs of Islam, their interest on the international
plane has been primarily to demonstrate that the shari9a can contribute to
the development of the modern law of nations for the mutual benefit of
Islamic and Christian nations.
42 For a discussion by a Muslim writer advocating the competence of the U. N. General
Assembly to deal with a Muslim country, see A. W. De jany, *( Competence of the General
Assembly in the Tunisian-Moroccan Questions/ } Proceedings of the American Society of
International Law, 1953, pp. 53-59.
48 See The M ajalla, Article 39.
 International Law and Islamic Law 17

372 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 50

The historical experiences of Islam and Christendom in introducing a

religious element in politics, on the international no less than on the do-
mestic plane, can be very dangerous indeed. For religion—perhaps any
form of ideology—would gravely disturb the operation of a system of law
which is in the main the product of custom and convention rather than the
crystallization of abstract doctrines. If the modern law of nations has
become worldwide, in contrast to the medieval Christian and Islamic law
of nations, it is because the European Powers have relegated religion from
the international to the national plane since the Peace of Westphalia, and
have accepted secular sources for its development in accordance with the
growing needs of an expanding family of nations. Thus Islam and Chris-
tendom have demonstrated, after a long period of hostilities, that they can
reconcile their rival ideological principles for purposes of peaceful co-
existence. Both have at last accepted their integration into a world order
which, though originating in Western Europe, now tends to encompass the
entire world.44
44 The present writer has drawn freely from his book, War and Peace in the Law of
Islam (Baltimore, 1955), and from his paper, “ From Religious to National Law,” in
R. H. Anshen (ed.), World-Center: Mid-East (New York, 1956). See also Q. Wright,
“ International Law and Ideologies, ’ ’ 48 A.J.I.L. 616-626 (1954) ; and Kurt Wilk, “ In-
ternational Law and Ideological Conflict,” 45 ibid. 648-670 (1951).
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