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Nesrine Badawi

In Islamic Jurisprudence on the Regulation of Armed Conflict: Text and Context, Nesrine Badawi argues against the existence of a ‘true’ interpretation of the rules of regulation armed conflict in Islam. In a survey of formative and modern seminal legal works on the subject, the author offers a detailed examination of the internal deductive structures of those key juristic works on the subject and elaborates on different methodological inconsistencies in them to shed light on the role played by the socio-political context in the development of Islamic jurisprudence.

International Law and Islam

Historical Explorations

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Edited by Ignacio de la Rasilla del Moral and Ayesha Shahid

International Law and Islam: Historical Explorations offers a unique opportunity to examine the Islamic contribution to the development of international law in historical perspective. The role of Islam in its various intellectual, political and legal manifestations within the history of international law is part of the exciting intellectual renovation of international and global legal history in the dawn of the twenty-first century. The present volume is an invitation to engage with this thriving development after ‘generations of prejudiced writing’ regarding the notable contribution of Islam to international law and its history.

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Robert Kolb

Abstract

This contribution tries to trace the history of the binding nature of international agreements and in particular of the principle pacta sunt servanda. It shows that in ancient times and cultures, treaties were mainly binding because of unilateral undertakings under municipal religion or law, and that only progressively the concept of a superior ‘pacta sunt servanda’ principle as an objective rule of law emerged. It traces the main stages of the process, but insists mainly on the ancient constructions of the binding nature of agreements.

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Haniff Ahamat and Nizamuddin Alias

Abstract

This chapter looks at how international law informs the sovereign status of the polities that form Malaysia and how the status evolved through the formation of the Malay States. The Malay States were historically sovereign or part of sovereign Sultanates. While Malay polities experienced changes after the arrival of Islam, the evolution of Malay polities was still influenced by the Hindu-Buddhist concept of mandala making the appreciation of power, control and sovereignty by the Malay Sultanate States unique. This chapter also analyses various treaties entered into by these polities, the British and other Powers that had an effect on the sovereignty of the Malay Sultanate States. This chapter stresses that under international law, the transfer of sovereignty to the British had taken place despite the choice of protectorates by the British for the Malays Sultanate States. This chapter finds that there was no total loss of sovereignty by the Malay Sultanate States as the Malay Sultans were recognised as sovereign in the British courts of law and they maintained exclusive control over Islam and Malay custom. However, as international law was heavily influenced by positivism at the peak of European colonization of Asia and Africa, it is not possible for residual sovereignty to be defended. However, the protectorate treaties had consolidated the power of the Sultan within his respective State ending the practice of decentralised rule inherited from the Hindu-Buddhist concept of mandala.

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Ayesha Shahid

Abstract

In recent decades there has been a growing interest in global histories in many parts of the world. Exploring a ‘global history of international law’ is a comparatively recent phenomenon that has attracted the attention of both international lawyers and historians. However, most scholarly contributions dealing with the history of international law end up perpetuating Western Self-centrism and Euro-centrism. International law is often depicted in the writings of international law scholars, as both a product of, and only applicable to, Western Christian states. These scholars insist that the origins of modern (Post-Westphalian) international law lie in the state practice of the European nations of the sixteenth and seventeenth century. This approach that considers only old Christian states of Western Europe to be the original international community is exclusionary, since it fails to recognize and engage with other legal systems including the Islamic legal traditions. This chapter, through the writings of eminent classic and contemporary Islamic jurists, explores the development of As-Siyar (Islamic international law) within the Islamic legal tradition and attempts to address the existing gaps in the global history of the international law project.

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Michelle Burgis-Kasthala

Abstract

This chapter reflects on how international lawyers steeped in European histories can broaden their scholarly sensibilities through studying non-European worlds and their interaction over time. The chapter explores some of the interactions between the Islamic and non-Islamic worlds as examples of ‘international’ interaction and suggests areas where Islamic legal traditions can enrich dominant, European approaches to statehood and its international regulation. Thus, in highlighting the possible Islamic legal dimensions of international law’s past and present, the ultimate goal of this chapter is to take seriously the responsibility of international lawyers today to create alternative archives.

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Ignacio Forcada Barona

Abstract

This work examines the historical roots, the sources and content of what it is known as “just war theory” and its equivalent in classical Islamic thought, involving the now famous concept of Jihad, in an attempt to discover if Francisco de Vitoria, one of the most prominent representative of the sixteenth century Spanish School of International Law, used Islamic sources when shaping his theory of just war. Discarding such a possibility, this contribution ends up trying to give an explanation to the apparent similarities between Islamic and Western conceptions of just war.

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Jean Allain

Abstract

This chapter demonstrates the discrepancy between Majid Khadduri’s representation of Muhammad Shaybani and the Siyar – the Islamic Law of Nations – in his 1966 The Islamic Law of Nations, and that found in Mahmood Ahmad Ghazi’s 1998 translation of Shaybani introductory text, The Shorter Book. The richness of the latter text speaks to a foundational work which deserves a place amongst the ‘classics of international law’ and should establish the existence of a pre-Columbian genealogy of international law beyond doubt.

What follows in this chapter is an examination of Shaybani, the person, and his oeuvre, with special emphasis on Kitab al Siyar al Saghir as translated by Ghazi. The chapter demonstrated that it is only with the emergence of Ghazi’s The Shorter Book of Muslim International Law, that international legal scholars of the English-language world can come to appreciate and engage with a text that was written more than twelve centuries ago. By so doing, these international jurists will come to recognise that Muhammad Shaybani is second to none in the pantheon of classic international jurists; as the first to provide a systematic account of international law, more than eight centuries before Hugo Grotius’ Iure Belli ac Pacis of 1625.

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Ilias Bantekas

Abstract

Ottoman state practice in the field of state succession in the nineteenth century displays strict adherence to European notions of international law. This is evident from the ratification of cession treaties, attention to reciprocity, the use of mediation, reliance on existing laws of war principles, including the legal effects of occupation, conquest and the rights and duties of belligerents. The chapter focuses on state succession treaties with Greece as this represents the paradigm for all future treaties, examining the Islamic origin of Ottoman land regulation. The Ottomans succeed in attaching a further condition to their cession arrangements with the new Greek state, namely the latter’s obligation to respect the property rights of Muslim citizens. This brings into play the application of Ottoman land law, which Greece is under no obligation to succeed to. This body of law, particularly the set of property rights bestowed under it, becomes a focal point in the ensuing state succession negotiations. It is the actual basis of Muslim property rights – a precursor to contemporary property rights – and a sine qua non element of Ottoman practice in the law of state succession. In this light, Ottoman land law and institutions should correctly be considered as general principles of law – with origins from the Qur’an and the early caliphates – as well as regional custom, at least in the territories liberated from Ottoman rule and which continued to apply and enforce it not only to Muslims but also in the property relations of the indigenous ethnic communities.