Islamic Law and International Law: Peaceful Settlement of Disputes by Emilia Justyna Powell, Oxford University Press 2019, 328 pages ISBN: 9780190064631

The Charter of the United Nations imposes a well-known obligation on all States to settle their disputes by peaceful means in such a manner that international peace, security, and justice are not endangered. Today, nearly a quarter of the world’s population is Muslim, and each of them, in some way and to some extent, commit to Sharia. Yet, there is still a lack of understanding in how – especially from an empirical point of view – Islamic law States (ILS) view international law and international means to settle disputes in a peaceful manner. In Islamic Law and International Law: Peaceful Settlement of Disputes, Powell closes this gap by defining and conceptualising the relationship between the Islamic legal tradition and international law and shaping our understanding of the peaceful settlement of disputes in this regard. Useful for practitioners, scholars, policy makers, judges, students, and staff at international and non-governmental organisations, the book embraces an interdisciplinary approach – situated both with the international law and political science scholarship – and draws on skilfully conducted qualitative and quantitative empirical research in combination with a comprehensive theoretical understanding of the Islamic legal tradition.

In chapter 2, the author provides an explanatory survey of the concepts fundamental to her study: international law, Islamic law, and international Islamic law. Powell points out that the ILS category includes States where most of the legal system is subject to obligatory implementation of sharia, as well as States that limit the direct impact of sharia to a part of their legal system. In addition, the ILS category includes States that delegate decisions about the place of sharia in official governance to the State’s administrative institutions. By empirical studies which rest on data on the domestic laws of 30 ILS, Powell defines the balance between secular laws and Islamic law in each ILS, the extent to which Islamic laws and secular laws are present in their domestic legal systems, and how these have developed over time by a series of tables. Powell concludes that ILS differ from other countries where other religions play an important societal role, because sharia, however interpreted, enters the official legal systems ILS to some extent.

In chapter 3, the author contrasts the international and Islamic legal systems. Powell addresses their historical interaction and development, as well as the diverging opinions in scholarship regarding the compatibility of Islamic law with international law. Chapter 3 provides an analysis of legal areas, both substantive and procedural, where international and Islamic law are at odds, and where they coexist without conflict. The author rebuts existing viewpoints in scholarship, which either over-emphasise the points of diversion between sharia and international law or dismiss their points of convergence. Instead, the author is correct to advocate a middle ground; whereas legal disagreements exist, these are in many instances overshadowed by numerous points of convergence and important similarities between the two systems. Powell identifies three points of convergence: i) the role of scholars in law formation; ii) the utilisation of customs as a source of law (obligations); and iii) the presence of the rule of law. The author also identifies three points of diversion: i) the relation between law and religion; ii) the sources of law; and iii) religious features in the court room, including religious affiliation and gender requirements of judges, as well as holy oaths. She concludes that where convergences occur, these can contribute to legitimising international dispute management in the eyes of ILS, which may otherwise by some be viewed as a tool rigged in favour of Western States. Thus, in the author’s words, legal homogeneity provides a bridge between the two systems of law, whereas legal heterogeneity pulls the systems apart.

In chapter 4, Powell develops the theoretical argument which forms the basis for her study. The author argues that the domestic balance between Islamic law and secular law in each ILS’ domestic legal system gets translated into each State’s preference with respect to international conflict management. The distinction between non-adversarial dispute management as embraced by the Islamic legal tradition and confrontational dispute management as embraced by the Western legal heritage is fundamental to her thesis. In terms of Western approaches to dispute settlement, traditional Islamic law uses more informal venues, such reconciliation, apology, and constructive dialogue, and avoids resort to formal judicial mechanisms. This domestic approach of informal settlement of the Islamic milieu carries over to ILS’ preference with respect to international dispute settlement. ILS whose legal domestic systems are heavily infused with features of Islamic law are likely to prefer international dispute settlement venues that resemble traditional Islamic law non-adversarial ones, such as conciliation and mediation. In contrast, ILS whose domestic legal systems embrace tenets of secular law are more receptive to adversarial means to settle disputes in the international sphere, such as arbitration and adjudication.

Moreover, ILS prefer non-adversarial venues given the absence of Islamic influences in arbitration and adjudication, which have been developed by Western notions. The judges or arbitrators are seldom trained in Islamic law. In addition, the author points out that whereas the Western model of adjudication is about seeking to determine the truth (facts), apply the law and allowing events to unfold accordingly, the purpose of dispute settlement in the Islamic legal tradition is to guide the parties’ efforts at finding a common ground; reconciliation to eradicate any disagreement is of utmost importance, and the focus is to establish a situation for the parties where they can work together. Thus, mediation and conciliation match Islamic values of dispute resolution because mediation and conciliation entail an ongoing dialogue between the parties. In addition, the parties can choose an Islamic mediator or conciliator, and thus employ principles of Islamic law in the dispute resolution process. In this regard, it would have been interesting to develop the argument and engage in a comparison with the formal means to settle disputes as States, for arbitration, are likewise free to choose arbitrators. For instance, to what degree could an arbitrator, who is trained in Islamic legal principles, incorporate principles of Islamic law, or notions of the Islamic legal tradition, into arbitration as a formal dispute resolution process?

Chapters 5, 6 and 7 incorporate a series of statistical analyses which is based on coded empirical patterns. These chapters demonstrate that it is the balance between secular laws and Islamic law that shapes ILS’ preference for international dispute settlement. In chapter 5, Powell examines the ILS’s decision to use specific mechanisms for conflict management in their territorial disputes. Whereas there seems to be no regularity in how ILS attempt to solve territorial disputes, both ILS and non-ILS seem to prefer bilateral negotiations. Moreover, certain features that impact ILS’ preferences can be singled out. For instance, presence of secular domestic courts makes ILS more receptive to international arbitration and adjudication, whereas mediation, good offices and conciliation are preferable for ILS whose domestic legal system is deeply infused with Islamic law and have constitutional mentions of sharia education.

Chapter 6 goes beyond territorial disputes and focuses on the existing international legal institutions and ILS’ attitudes to these institutions, most prominently the International Court of Justice (ICJ). Powell emphasises that there is no uniformity or cohesive preference among ILS; some are likely to accept the Court’s jurisdiction, whereas some are more reluctant to it, and again, this variance is due to the balance between secular and Islamic laws in the ILS’ domestic legal system. Chapter 7 extends the analysis in chapters 5 and 6 by focusing on the Islamic schools of jurisprudence and the geographic location of each ILS. The author shows that whilst a specific school of Islamic jurisprudence does not impact on ILS’s preferences with respect to international methods to settle disputes, their geographical location seem to matter to a considerable degree. For instance, middle Eastern ILS prefer to use mediation and conciliation to a greater degree than other ILS. Middle Eastern ILS are also most likely to prefer bilateral negotiation in territorial disputes and are least receptive to the jurisdiction of international courts and tribunals. African ILS are more likely to prefer adjudication and arbitration in their territorial disputes, but only in comparison to Middle Eastern ILS. In this regard, Asian/Oceania ILS seem to favour binding third party settlement methods even more than African ILS.

Although the author briefly draws on the analogies between international and national law, and more thoroughly on sharia’s application to collectiveness and State level, a broader discussion could have included a more extensive analysis contrasting the differences between domestic dispute resolution and dispute settlement in the international sphere. It is generally uncontested that recourse to domestic law analogies, most commonly to the Western legal heritage, have influenced the development of some spheres of international law, and prima facie, traditional Islamic law dispute settlement may resemble certain diplomatic means to settle international disputes peacefully. However, given the clearly distinct functions of municipal law and international law, domestic law analogies and comparisons can be problematic because they are premised on the existence of sufficient similarities between the problems that occur and need to be addressed in both domestic and international legal systems. The two systems govern fundamentally different subjects, sets of rules, and – to some degree – legal areas.

This key point could more thoroughly have been developed by addressing the intrinsically different functions between, on the one hand, dispute resolution between private individuals, which are concrete actors dealing with personal matters, and, on the other hand, dispute resolution between States, which are abstract yet sovereign entities engaging in international affairs and relations with other sovereign States. As such, although there are similarities between traditional Islamic law dispute settlement and diplomatic means to settle disputes in the international arena and the elements of the latter are more appealing to a significant part of ILS, it is not a necessary starting point that these systems developed from a common purpose and accommodate similar interests or concepts.

The primary focus of the book is dispute resolution on the interstate level, and this restraint to focus primarily on interstate disputes, particularily within the context of the ICJ is, of course, understandable. However, an interesting point which is not addressed by the book is the approach of ISL towards adjudicative, being judicial or quasi-judicial, bodies that hear disputes on a vertical level between individuals and States. These bodies operate most typically in the discourse of human rights, and when consenting to be bound by a human rights treaty, States can usually formulate reservations which allow them to accommodate their specific interests in the framework of multilateral treaties, as long as the reservations is not incompatible with the object and purpose of the treaty. For instance, in 2018, Qatar ratified the International Covenant on Civil and Political Rights and made several reservations to ensure the compatibility of its Covenant obligations with its domestic legislation, which is infused with sharia. The monitoring bodies set up under human rights treaties generally claim the right to decide on the reservations’ compatibility with the object and purpose of the treaty, and, perhaps for future research purposes, the discussion can be advanced to examine the relationship between the Islamic legal tradition and international human rights law, and in particular how ILS perceive dispute settlement between States and individuals in the context of human rights law.

Overall, Islamic Law and International Law: Peaceful Settlement of Disputes empirically discovers the key areas on diversion and convergence between Islamic law and international law within the context of each ILS. The book is an excellent contribution not least to the legal scholarship, which has a history of avoiding empirical studies, but also to the political science scholarship which does not sufficiently reflect the internal nuances within different ILS categories. Powell shows that the Islamic legal tradition is not, ab initio, fundamentally incompatible with international law, and, in the words of the author, scholarship tends to draw an artificial line between the two legal systems. Thus, whereas a significant proportion of ILS prefer non-adversarial means to settle their international disputes, the perceived clash between the Islamic legal tradition and international law does not bar some ILS from submitting their disputes to international courts and tribunals, although, as the author correctly points out, the inclusiveness of international dispute settlement venues could benefit from incorporating non-Western understandings and notions of law and justice.