Islam, International and Comparative Law: Current Issues

Islam, International and Comparative Law: Current Issues

Monday 3 December 200709:30to17:00

Abstracts of Presentations

Keynote Address: POINTS OF REFLECTION AND THE ILA COMMITTEE

Judge Awn Shawkat Al-Kasawneh

Vice-President, International Court of Justice

Addressing the true meaning of the terms “Islamic Law”, “the laws of Islam”, and “the Sharia”, is a pre-requisite to understanding current issues. Clarifying their status with respect to each other is especially important in obtaining a sound understanding of Islam and law and is a necessity in light of the current frequent (mis)use of these terms.

Questions of the relationship shared by both Sharia and Roman law by virtue of their theoretical foundations and concepts on institutions are to be approached and this will be complimented by a brief examination of aspects of universality in Sharia and legal reasoning, providing an insight into the similarities and differences between the two systems.

Following the exposition of theoretical foundations, particular attention must be paid to the actual practice of Islamic states and reconciling this with the practice and theory of Sharia, currently a source of in-depth enquiry. Subsequently, the application and relevance of Sharia concepts with regard to modern international law require examination, using the two inherently universal problems of human rights and environmental protection as exemplars familiar to all.

Session 1: DEFINING THE ISSUES

Topics:

•What is Islamic international law (As-Siyar), what is its relationship to international law, and how is it relevant in today’s world?

•What is the contribution of Islamic law to public international law?

•How is public international law implemented at the domestic level by Islamic states?

•What is the relationship between Islamic law and private international law?

Speakers:

Professor Javaid Rehman

BrunelUniversity

The Sharia and Siyar in the Developent of Law of Nations

Issues of definition are to be foremost in examining this highly topical area of law. By clarifying the concepts of Sharia and As-Siyar and their relationship with oneanother, we are provided with a basis, to undertake an inquiry into Siyar – the relationship of Muslim communities with non-Muslim communities - and the Law of Nations. Covering some of the salient points of international law, the subjects addressed will be: the sanctity of treaties, trade and commerce, Mufawada and inân (laws of business partnerships), arbitration and mediation, and diplomatic missions and immunities. Exploring the law of nations necessarily leads to posing the charge of “Eurocentricism” at the current system of international law – an issue that must be tackled in relation to Siyar.

Controversies facing Islamic thought today are to be found within Sharia and Siyar themselves, and need to endure inquiry. Amongst these, Jihad (dar-al-harb and dar-al-Islam), and freedom of religion and rights of religious minorities (Ahal al Kitab and non-believers) are the two most in demand of examination.

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Professor Mashood Baderin

School of Oriental and African Studies, University of London

The Relationship Between Islamic Law and International Law: Towards a Better Understanding.

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 has never been greater. With admirable candour, Professor Christopher Weeramantry, a former judge of the International Court of Justice, had observed in one of his writings in the 1980s that:

“There will be in the future an increasing need for the non-Islamic countries all over the world to negotiate 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… The non-Islamic world neglects them at its own cost.”

This relevance of Islamic law to modern international law debates is evidenced by the volume of increasing literature on the subject in recent years. This presentation will, in that regard, present a general analysis of the relationship between Islamic law and modern international law from two main angles. The first angle is in relation to the interaction between modern international law and the domestic laws of relevant Muslim states that apply Islamic law as State law, while the second angle is in relation to the existence of a separate traditional concept of an Islamic law of nations or Islamic international law known as Siyar within general Islamic law. The paper will analyse the different points of view on the subject, from both a normative and empirical perspective, and then give some brief insights into relevant aspects and issues in the relationship between the two systems with reference to some relevant academic literature in that regard.

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Professor Shaheen Ali

WarwickUniversity

Towards Globalisation of International law: Exploring The Role of Siyar as Global law and its impact on Contemporary International Law and Global Society

Professor Ali’s paper explores the contribution of religion in the development of contemporary norms of international law in an increasingly globalised world with special reference to siyar [Islamic international law]. It argues that developments of the past century have resulted in a critical engagement between the Islamic legal tradition and what is often for want of a more appropriate terminology, referred to as the western legal system, broadly defined. This engagement is at various levels; local, national, regional and international. The present paper confines itself with the impact of this interaction on siyar and international law, the international human rights regime and application of Islamic law to Muslim diasporic communities in Europe.

1. Contemporary siyar as an evolving normative framework within the Islamic legal tradition: Some key developments in Muslim state practice.

2. Muslim diasporic communities as a discursive site for the Islamic legal tradition and siyar.

3. From Individual to Collective Fatwa? Institution of Ifta As Transformative Vehicle in the Islamic Legal Tradition. Implications for siyar.

Keynote Address: UNDERSTANDING SHARI’A: DEFINITIONS, SCOPE AND OBJECTIVES

Professor Tariq Ramadan

Senior Research Fellow, St. Antony’s College, Oxford

Session 2: ISLAMIC INTERNATIONAL LAW, THE USE OF FORCE AND TERRORISM

Speakers:

Dr Niaz Shah

University of Hull

Self-defence: the use of force in the Koran

The Koran allows the use of force in self-defence in two situations (a) when a Muslim land is attacked or such attack is imminent and (b) a group of Muslims are persecuted for believing in Islam. The Koran places strict restrictions on the use of force such as proportionality and fighting combatants only. These Koranic standards are compatible with article 51 of the United Nations Charter and the emerging principle of humanitarian intervention.

Critically examining Al-Qaeda’s declaration of Jihad in 1996 and 1998, it could not be classed as justified because (a) no Muslim state was under direct attack and (b) as a non-state actor, it has no authority to declare Jihad.

However, the situation in Afghanistan and Iraq is different in 2007. The direct military intervention, killing of people in thousands, the inability of the US-led coalition and the regimes they support to provide security of person and property may lead Muslim leaders (not necessarily Al-Qaeda or pro Anglo-American figures) to declare a consensus defensive Jihad which, I believe, would be regarded as Koranic and according to international law.

These are contentious and necessary issues to be raised in understanding contemporary Koranic use of force rules.

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Professor Mashood Baderin

School of Oriental and African Studies, University of London

A Comparative Analysis of the Law on Use of Force and Terrorism under International Law and Islamic Law

It is apparent that many of the challenges confronting international law, especially in relation to Islamic law and the Muslim world, concerns issues relating to the use of force and, more recently, terrorism. This presentation will therefore provide a brief comparative analysis of the

law on the use of force and terrorism under international law and Islamic law. The analysis will cover the different perspectives on the subject, explore areas or convergence and divergence and propose possible ways of enhancing a better relationship between International law and Islamic law in respect of regulating the use of force and acts of terrorism in modern international relations.

Session 3: ISLAMIC LAW AND HIMAN RIGHTS: ASPECTS OF THE RELATIONSHIP

Speakers:

Christine Chinkin

LondonSchool of Economics, University of London

Islamic States and Women’s Rights: An examination

Taking an institutional approach towards Islamic law and human rights, the presentation will address one of the most contentious issues in this field – women’s rights. More specifically, this will analyse the interplay between the Committee on the Elimination of Discrimination against Women and those states that have professed a commitment to Islam. Paying particular attention to: the drafting of the convention, matters of reservations and declarations that subordinate convention provisions to Sharia law, and the approach that is taken by the committee to states’ reports, this will serve to illustrate tensions caused by the co-existence of international commitments to women’s equality and claims made in the name of religion.

To gain comparative perspectives, noting approaches taken by the Human Rights Committee and in the Protocol on the Rights of Women in Africa will be very useful, as Sharia’s compatibility with women’s rights are analysed. This will be concluded with a consideration of broader aspects of the discourse of women’s rights and Sharia.

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Professor Ziba Mir-Hosseini

(New York Universtiy) Hauser Global School Law Program

Gender Equality, Human Rights and Islamic Law

One main area of tension between international human rights law, as embodied in the UN Convention on the Elimination of all forms of Discrimination Against Women (CEDAW), and Islamic law, as interpreted by classical jurists and codified by Muslim states in modern legal codes in the course of the C.20th, stems from their different conceptions of gender rights and equality.

This tension has acquired a new dimension and intensity with the rise of political Islam in the 1970s and the Islamist slogan of “Return to Sharia”. The aim to explore aspects of this tension will concentrate on two recent developments. The first of these is the emergence of “Islamic feminism”, which may be seen as a new gender discourse arguing for equality within an Islamic framework, eschewing the western basis for female “emancipation” in favour of a home grown one. The other of these is the so called “War on Terror”, whereby military interventions in both Iraq and Afghanistan have been justified through the rhetoric of promoting “democracy” and “human rights”. Investigating the validity of these claims in relation to gender equality will be key.

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Session 4: ASPECTS OF THE RELATIONSHIP BEWEEN ISLAMIC LAW AND BUSINESS AND FINANCE LAW

Speakers:

Amr Marara

Lawyer, Bechert LLP

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Richard De Belder

Partner, Denton Wilde Sapte

The interaction between the Sharia and conventional business and finance laws – a practitioner’s viewpoint with particular emphasis on Islamic finance

Introducing points of reference for business and finance laws in relation to Sharia as a starting point, the presentation analyses various aspects encountered in commercial practice. Private international law choice of law issues in contracts is an example of this. Riba (interest on loans), the manner in which returns are calculated in Islamic finance, and default rate interest are further examples that will be studied.

Taxation issues are also of great importance and dealing with documentary taxes, capital gains tax and VAT and sales tax, will be areas covered. Similarly, taxation of returns in the hands of Islamic financial institutions is another arm of the taxation issues faced when involved in Sharia compliant finance. Sukuks (Islamic bonds) and their contemporary use, especially with regard to regulatory issues and their interaction with Riba, also demand scrutiny in the presentation because of their growing profile in international finance.

In addition, more general aspects surrounding Sharia and finance laws such as registration requirements, business issues, and laws of financial institutions will help to provide an insight especially so, as investigating comparative analyses using examples of conventional laws being used to accommodate Shariarequirements hold the key to understanding Islamic-Western relationships in business and finance.