TOWARDS A REVITALIZATION OF ISLAMIC INTERNATIONAL LAW IN A EUROCENTRIC WORLD*
Author : Fajri Matahati Muhammadin
This article brings us to a present day world where international law is dominated by a western construct achieved by nothing other than subjugation of the past and continued today with similar logic but under different narratives or ‘packaging’. Islamic international law has no more trace in actual practice, except in very small items and under negative light. This article first highlights how we got into today’s international law, on the cause and nature of this western hegemony. Then it will be highlighted what it would take to bring back Islamic international law into the heart of modern international law scholarship.
Romance of the Past: Islam and International Law
Muslims love to romanticize their history. Those learned in law are probably no different, including that of international law.
The Dutch scholar Hugo Grotius (d 1645) is commonly championed as the ‘father of modern international law’. among his major contribution was Mare Liberum which was foundation of the freedom of navigation recognize even until today as an important principle in the law of the sea. Yet, the same principle was also ruled by the Mujaddid and Khalifah Umar bin Abdul Aziz (d 720) about 900 years earlier, derived from the Qur’an (Muhammad Nur Islami, 2009).
What even less people know is their commitment to justice. Prakash Anand (1982) writes that Grotius represented his Kingdom when arguing against Britain who protested Netherland’s policy of imposing tariff to ships passing through the seas under her rule. Grotius was surprised that the British even used Mare Liberum –his own book, at the time published anonymously—against him. Yet he persisted in defending his kingdom, arguing against his own academic convictions. One may contrast this to Khalifah Umar bin Abdul Aziz who was poisoned to death because his reforms favored the people but not the nobility.
The Madinah Charter is argued as an important or even the first human rights charter. Islam raised the standard of humanity extending even to times of war. The need to avoid environmental destruction during the times of war was instructed by Khalifah Abu Bakr as narrated in Imam Malik bin Anas’s Al Muwaththa, doing nothing but summarizing what Rasulullah (ﷺ) has instructed before. Compare this to modern international humanitarian law which mentioned nothing about the environment until as late as 1977 through the Additional Protocol I to the Geneva Conventions. This is not to mention that Islamic law may have higher standards. Scholars of fiqh of the medieval times, as ibn Rushd (d 1198, English version issued in 2000), ruled that environmental damage can be justified only as it is proportionate to the military advantage. Contrast this to the Rome Statute (1998) which only rules environmental damage as a war crime when the damage is widespread, long term, and severe.
Islam even sets a good precedence in law of treaties, known to be the most important source of international law. Jean Pictet (1985) notes how in the medieval ages when Muslims fought against the Christians, the latter holds that the principle of pacta sunt servanda only applies among Christian states. Therefore, from a Christian perspective, agreements with other parties can be abruptly ended treacherously at will and at convenience of the Christians. In contrast, despite the attitude of the Christians, the Muslims honor agreements with non-Muslims. Even when they wish to end agreements, they would give notification and provide time so that the agreement ends fairly for both sides.
This list can go on. But where is Islamic international law today?
Building a Eurocentric International Law
Many have noted that the international law today is more of a European one (Istanto, 2009). While few have fully explored the extent of damage rising from and caused by eurocentrism, they have argued with very strong merit.
Antony Anghie (2004), for example, argued that colonialism was at the heart of Europe’s model of international law. The Peace of Westphalia in 1648 was famous for the introduction of the modern state and sovereignty principle, Angie submits, hid a very dark secret i.e. to justify colonialism. Having a modern state, as sign of civilization, was what incurs rights of sovereignty. So less civilized States –according to Europe who set themselves as standard—do not have sovereignty. Therefore, it is not wrong for the ‘civilized states’ to ‘civilize the uncivilized’. Similar lines of argument was endorsed from the era of natural law and then to the 19th century rise of positivism, according to Anghie, only different in ways of construction.
Therefore, when the trend of decolonialization came after World War II, we had numerous new states. These former colonies had many problems. The obvious one was economic independence. Even until today developing nations –all of them former colonies—struggle with this problem, as western corporations control not only most profits from resource extraction but some level of control over the governments.
The other problem was when the former colonies became independent, they found themselves in a world full of a number of customary international laws which were already binding norms to them but they took no part in making such laws. Persistent objection is recognized in international law, so that states persistently objecting to the customary laws from the formation period of such rule would be excluded by the rule (Shaw, 2008). Yet the International Court of Justice (ICJ) in the Anglo-Norweigian Fisheries Case (1951) ruled an additional requirement to the persistent objector: consent from other states.
This is indeed very problematic. The position and legitimacy of international law has even been questioned, inter alia by John Austin (1834) noting how the absence of a sovereign in international law makes it not a law. While his general position on international law was heavily refuted by scholars afterwards, some of his argument had merits. The first thing that a modern jurist would question regarding a case is not that of the material law but that of the formal law. Why is the law applicable in the first place?
The first source of international law is treaties which were only binding upon consent. The second was customary international laws, where the opinion juris element of it would represent a direct or indirect consent. The position of the ICJ was resonated by many, but triggers more questions from curious and concerned minds. What is the point of sovereign equality, then? If to become customary a rule would require ‘uniformity of practice and opinio juris’, wouldn’t a persistent objector prove the rule not to be customary (regardless of the consent of others) unless this objector is excluded from the rule? Since when is the act of a States subject to the permission of the others?
The answer: since the days of colonialism. Not new.
This is where Benoit Mayer (2014) noted that every society has a ‘Magic Circle’. They have an implicit consensus just amongst the ‘Magic Circle’ that parts of the society need not to be involved. Mayer cited Judge Eleanor Sharpston, saying that there is only equality among the members of this ‘Magic Circle’. All left is the vision of a few imposed to the many.
Islam in a Eurocentric World
The UN Commission Against Torture issued a report in 2002 declaring that Saudi Arabia breached its obligation to the Convention Against Torture (CAT), inter alia in the implementing of lashing as a punishment. This conclusion is at least questionable. There are numerous flaws, the most obvious one is how the CAT in Article 1 explicitly states that pain inflicted by or inherent to lawful sanctions are not acts of torture. Lashing in Saudi Arabia is prescribed in their national laws. Not to mention, the extent of pain caused by lashing in Islamic law simply does not meet the ‘severe’ requirement also set in Article 1 of the CAT (Muhammadin, 2017). Saudi replied in 2015 and 2016 arguing exactly that, and the Committee replied in 2016 not answering Saudi’s arguments but mostly reiterating their arguments from 2002. What gives?
This is just one out of endless examples on how international law treats Islam and Muslims as another dismissible view. Islam is just not in the ‘Magic Circle’.
Yet it is unfortunate that most rulers of the Islamic world seem closer to the Magic Circle instead of Islamic law. Many Islamic nations are participating in international law, but mostly not as main players –except when they are put forward as a violator of some rule (e.g. Sudan due to the past civil war, etc). Sometimes they make reservations to international conventions, such as towards Article 16 of CEDAW to accommodate Islamic family laws, yet that seems to be all.
It is true that Islam has no problem with international cooperation if it benefits the Muslims, as mentioned by Shalih Al-Fawzan (1424 H). It can also be argued that most multilateral conventions are not per se detrimental towards the Muslims (if Muslim States do submit reservations in the right places). However, as Fajri Muhammadin and Fathimathush Sholihah (2016) noted, “The Muslim nations are just among so many other nations who participate in the making of the international conventions. It has become irrelevant whether [sic] the nations are Muslim nations or not.”
The day has therefore come when the glories of the Islamic civilization has become merely a ‘romantization’ of the past. Today’s reality is that Islam is just another brick in the wall or a pest for the ‘Magic Circle’ dominating international legal scholarship.
A Critical Approach to International Law and the Islamization of International Law
There are three keys to revitalize the role of Islam in international law.
The first key is to push for more critical scholarship in international law. It is not easy, as Prabhakar Singh and Benoit Mayer (2014) observed that critical scholarship is “… by nature a ‘dissenting opinion’….. too often misunderstood –if not intentionally caricatured as—‘confrontational’, ‘radical’, or even ‘leftist’”. They also accurately noted some significant points that shows what international legal studies gravely lacks. They wrote “International legal studies inevitably rely on assumptions, habitus, values, worldviews, and the like, which remain for the most part unquestioned.” which is unfortunately true.
Helen Quane (2013), for example, argues that plurality in human rights can be accepted as long as it does not violate international standards, and that religion should be interpreted in a way that it conforms with international law standards. Whatever way may this be sugarcoated, but the message is essentially that international law stands above religion. This makes absolutely no sense unless to one who believes that there is no God and that any religion is entirely man made.
Two completely different worldviews, yet one imposing itself to the other. What is this if not a display of the same logic used by international law to justify colonialism: the self-proclaimed ‘civilized states’ attempting to ‘civilize the uncivilized’?
This is not how international law should be working. This is why more investments on critical scholarship should be made to put it into the mainstream. While acts of states heavily influence what international law is like, works of scholars also have their own contribution in the development of international law. More critical scholarship is hoped to deconstruct the current Eurocentric version of international law into one that would accommodate a greater plurality to give justice to what is –in reality—a very diverse world.
The second key is for the Islamic scholars to combine their knowledge on the Shari’ah and international law to positively contribute to international law scholarship. International human rights law is a classic, but we have emerging on areas also e.g. law of the sea and law of outer space (e.g. Wahbah Az-Zuhaili, 2011), international humanitarian law (e.g. Muhammad Al Dawoody, 2011, and Fajri Muhammadin, 2015), and so much more. There is a need for more of this as foundation for the last key.
The third and last key is for the Islamic nations to be more committed in their efforts to contribute to the making of international law and in doing so being more expressive in their Islamic identity. Muhammadin and Sholihah (2016) noted that the Organization of Islamic Conference could be a good platform for it, its charter stating in the preamble “to endeavor to work for revitalizing Islam’s pioneering role in the world…”.
Scholars like Gregory C. Shaffer and Mark A. Pollack (2010) have argued how ‘soft laws’ can be very much efficient in international law making. In consonant with their argument, Muhammadin and Sholihah (2016) argued that ‘soft law’ may be the best way for the OIC to construct what may be an Islamic international law. It could be done in the Cairo Declaration of Human Rights in Islam (1990), and it could be done in other areas as well. The challenge to this is to gather the willingness of the Islamic nations for this aim.
*Has been accepted and awaiting publication at the PGSS Ahmad Ibrahim Kuliyyah of Laws (IIUM) Magazine, July 2017 edition (somehow the magazine is still not out yet!!)
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