International Law and Muslim States: Saudi Arabia in Context

323 Pages·2021·6.851 MB·English

by  Dawood Adesola Hamzah

International Law and
Muslim States
This book analyses the general interaction of international law and Islamic law
in the Muslim world today. It interrogates factors that often form the root of the
tension between the two legal regimes. Literalist interpretations of Islamic law
and the modern international law’s disposition that does not give due consider-
ation to differences among cultures and civilizations are some of these factors.
This work examines the Saudi Arabia textualist approach to the interpretation
of the two primary sources of law in Islam, the Qur’an and Sunnah, and argues
that a liberal approach of interpretation has become sine qua non especially now
that myriad issues are confronting the Muslim world generally and Saudi Arabia
in particular.
This book provides a timely examination of the issue of modern Saudi Arabia,
Islamic legal order vis-à-vis the contemporary concept of international law and
international relations in specific areas such as international human rights law
and trans-national economic matters. As such it will be of interest to academics
and researchers working in Islamic law, international and comparative law, hu-
man rights law, and law and religion.
Dawood Adesola Hamzah is a Teaching Fellow at the School of Oriental and
African Studies, University of London, UK, and a lecturer at the University of
Ilorin, Nigeria.
Islamic Law in Context
Series Editor: Javaid Rehman, Brunel University, UK
The Islamic Law in Context series addresses key contemporary issues and the-
oretical debates related to the Sharia and Islamic law. The series focuses on re-
search into the theory and practice of the law, and draws attention to the ways in
which the law is operational within modern State practices. The volumes in this
series are written for an international academic audience and are sensitive to the
diversity of contexts in which Islamic law is taught and researched across various
jurisdictions as well as to the ways it is perceived and applied within general
international law.
Woman’s Identity and Rethinking the Hadith
Nimat Hafez Barazangi
Changing God’s Law
The dynamics of Middle Eastern family law
Edited by Nadjma Yassari
Applied Family Law in Islamic Courts
Shari‘a courts in Gaza
Nahda Shehada
Islamic Law and International Commercial Arbitration
Maria Bhatti
For more information about this series, please visit: www.routledge.com/
Islamic-Law-in-Context/book-series/ISLAMLAWCXT
International Law
and Muslim States
Saudi Arabia in Context
Dawood Adesola Hamzah
First published 2022
by Routledge
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© 2022 Dawood Adesola Hamzah
The right of Dawood Adesola Hamzah to be identified as author of this
work has been asserted by him in accordance with sections 77 and 78 of
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British Library Cataloguing-in-Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging-in-Publication Data
Names: Hamzah, Dawood Adesola, author.
Title: International law and Muslim states : Saudi Arabia in context /
Dawood Adesola Hamzah.
Other titles: Islamic law in context.
Description: Abingdon, Oxon ; New York, NY : Routledge, 2021. |
Series: Islamic law in context | Includes bibliographical references
and index.
Identifiers: LCCN 2021007142 (print) | LCCN 2021007143 (ebook) |
ISBN 9780367679187 (hardback) | ISBN 9780367679194 (paperback) |
ISBN 9781003133384 (ebook)
Subjects: LCSH: International law—Saudi Arabia. | International
and municipal law—Saudi Arabia. | Conflict of laws—Saudi Arabia. |
Islamic law—Saudi Arabia. | International and municipal law—Islamic
countries. | International law (Islamic law)
Classification: LCC KMT2325 .H36 2021 (print) | LCC KMT2325
(ebook) | DDC 341.09538—dc23
LC record available at https://lccn.loc.gov/2021007142
LC ebook record available at https://lccn.loc.gov/2021007143
ISBN: 978-0-367-67918-7 (hbk)
ISBN: 978-0-367-67919-4 (pbk)
ISBN: 978-1-003-13338-4 (ebk)
Typeset in Galliard
by codeMantra
Contents
Preface vii
Foreword xi
JAMES PISCATORI
Abstract xvii
List of abbreviations xix
Glossary of legal terminology xxi
Glossary of Islamic legal terminology xxiii
Table of cases xxvii
Table of treaties and declarations xxix
Table of statutes and fatwas xxxi
1 Introduction 1
2 Interaction of international law and domestic law:
between theory and practice 27
3 Islamic law in Saudi Arabia: between conservatism
and moderation 60
4 Saudi Arabia between theory and practice of
international law 107
5 International human rights law and Islamic
law in Saudi Arabia 141
6 International economic relations and Islamic
law in Saudi Arabia 187
vi Contents
7 International arbitration and Islamic law
in Saudi Arabia 226
8 Conclusions and recommendations 269
Index 279
Preface
This book was originally submitted to the School of Oriental and African
Studies, University of London as a doctoral dissertation in international law and
Islamic law. It is an attempt to explore a world of legal, cultural, and civiliza-
tional diversities. Over the years there have been persistent calls for collaboration
and a desire for mutual understanding without having to sacrifice the identity of
different cultures and civilizations.
Modern International law evolved at the end of World War II, especially
under the patronage of the United Nations (UN) and the influence of the
historical de-colonization process of the second half of the twentieth century.1
The most authoritative normative framework of this regime is the UN Char-
ter of 1945. Globalization has seemingly driven this international norm to a
new phase introducing new frameworks of intercontinental legal and social
systems that are different from the traditional model that emerged from the
European nation-states. For example, the universal application and jurisdiction
in international human rights law and transnational economic, financial, and
trade rules and regulations transcend the Westphalian conception and vision
of sovereignty.2
Muslims constitute the world’s second largest religious group estimated at
1.8 billion people, making up about 24.1% of the world population.3 They
constitute the majority population in 44 states4 and hold tenaciously to the
Shari’ah – a value system they consider sacrosanct and applicable to every aspect
of their daily life irrespective of geographical location in a world of “complex
1 An-Na’im, A.A., and Odeh, L.A., ‘Islam and International Law: Toward A Positive Mutual
Engagement to Realize Shared Ideals’, Proceedings of the Annual Meeting (American Society of
International Law), Vol. 93 (2004), pp. 159–168, at p. 161.
2 Ibid.
3 Michael, L., and Hackett, C., ‘Why Muslims Are the World’s Fastest-Growing Religious Group’,
Pew Research Center (2017), www.pewresearch.org/fact-tank/2017/04/06/why-muslims- are-
the-worlds-fastest-growing-religious-group/ (accessed 08 February 2021).
4 An-Na’im, A.A., supra at p. 161.
viii Preface
interdependence”5 and “internationalization of production”.6 Saudi Arabia as an
example adopts the Shari’ah as State Law and the Hanbali School known for its
literalist approach, as officially adopted interpretation of the law.
Muslims, like any other communal entities in the world, incline towards adopt-
ing their own ways of being themselves, as a basic ideal of self-d etermination
under international law.7 Therefore, the reality of the interlink between Islam,
Muslims, and international law is no longer in question. But the question r emains
in the definition of this interlink. Is it cooperative or confrontational?
To address this question, this book offers a theoretical and historical synthesis
of the concept of sovereignty, and general nature of international law, focusing
particularly on the traditional and evolving perceptions of its relationship with
domestic law in theory and practice. It examines the theory of sovereignty and
the principle of non-intervention under modern international law in relation to
the domestic law-making of modern nation-states contextualizing Saudi Arabia
a leading modern Islamic state.
This book examines the theoretical framework and development of Islamic
law by analyzing its history and nature as a system of law consisting of sources,
methods, and principles. It also examines its practical evolution and application
as a formal legal system in Saudi Arabia with a view to establish that Islamic
law is capable of evolution and adaptation to changes particularly in a Muslim-
majority state.
This book explores the history, theory, and practice of Siyar (the Islamic Law
of Nations) vis-à-vis the interplay of international law and Islamic Law in Saudi
Arabian foreign policy. It also investigates how Saudi Arabia domesticates inter-
national treaties against the background of theory and practice of classical Siyar.
It attempts to establish the relevance of the Islamic perspective of territorial
statehood and nation-state with a view to contextualize the Saudi Arabia as a
modern nation-state maintaining relations with non-Muslim states.
This book examines international human rights law and institutions from
the perspectives of Islamic laws against the background of Saudi Arabian’s state
practice. This is underscored by the Saudi Basic Law which makes the Qur’an
and the Sunnah the dual Grundnorm of its law.
Saudi Arabia’s participations in international human rights forums are also
critically examined with a view to understanding the extent of how it maintains
a balance between two legal regimes –human rights and Islamic laws.
This book further examines the trans-national economic and trade laws with
focus on International Monetary Fund (IMF) and the World Trade O rganisation
(WTO). The membership of Saudi Arabia in these two organizations raises
questions around the issue of riba (usury) in banking and finance and gharar
5 Shaw, M., Theory of the Global State, Globality as Unfinished Revolution, Cambridge: Cambridge
University Press (2002), p. 84.
6 Cox, R.W., Production, Power and World Order: Social Forces in the Making of History, New York:
Columbia University Press (1987), pp. 253–265.
7 An-Na’im, A.A., supra at p. 163.
Preface ix
(speculation in the insurance business) that are prohibited under Islamic law. It
brings into focus the Saudi Arabian Ulama’ and jurists’ position on these i ssues
vis-à-vis membership of the Kingdom in the two international institutions.
Similarly, the intellectual property is also a subject of debate among modern
Muslim scholars and jurists that is interrogated against the membership of Saudi
Arabia in the WTO.
The practice of international arbitration was a framework that evolved to
allow parties from different legal cultures to consensually resolve their disputes
generally without a strict adherence to the formalities of their respective legal
and court systems. Tahkim (arbitration), on the other hand, existed in the pre-
Islamic era, but the advent of Islam transformed it to a better means of attaining
alternative justice. Integral to the conflict over oil demand and supply, numerous
trade disputes involving issues have found themselves regulated by different legal
systems. This book attempts to interrogate how arbitral rules and regulations
of the classical Hanbali Islamic jurisprudence and Euro-centric modern inter-
national arbitration laws interact in the Saudi Arabia legal system. What exactly
have Saudi Arabia’s 1983 and 2012 Arbitration Laws that were enacted under
the shadow of the New York Convention and the UNCITRAL Model Law
established – collaboration or confrontation between different legal regimes?
I remain forever thankful to Allah for His guidance and countless favours.
I express my profound appreciation to my family, particularly my wife Zilfah
Oyepeju Hamzah for her patient and understanding. I also thank friends, and
colleagues as well as anonymous men and women of goodwill who gave me
their support in turning this book into a collective effort. Due to lack of space,
I may not list names. However, I wish to register my thanks to Professor James
Piscatori, Deputy Director at the Australian National University Centre for Arab
and Islamic Studies; Professor Javaid Rehman, Brunel Law School, College of
Business, Arts and Social Sciences, Brunel University, London; Professor Kasim
N. Sheikh, Head of the Law School, University of Huddersfield; and Professor
Mashood A. Baderin, Faculty of Law and Social Sciences, School of Oriental and
African Studies, University of London for their remarkable support.
Dawood Adesola Hamzah
London
10 February 2021