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August 29, 2004

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Islam's contribution to international law

Barrister Harun ur Rashid

The scope of international law covers almost every kind of activity of inter-state character. Since the end of the Second World War (1939-45), there has been a steady development of international humanitarian laws. When states' own internal protective system falters or where it fails to protect human rights, international humanitarian laws come into play.

Western writers and jurists of international law have routinely overlooked contribution of Islamic law to modern international law. They either disregard or ignore the very existence of the subject. For instance, well-known authors, such as, Oppenheim or O'Connell do not discuss it at all.

Contribution of Islamic Law to modern international law
Although modern international law is overwhelmingly Euro-Centric and Christian-based, Islam's contribution to modern international law is significant. Many Islamic scholars maintain that the interaction between eastern and western civilisations and the relationship between Islamic law and modern international law appears to be close. Former Sri Lankan judge of the International Court of Justice, Christopher Veeramantry, in his book Islamic Jurisprudence (1988), has recognised Islam's contribution to the history of modern international law.

For centuries, laws under Islamic system have held a paramount place in the civilisation of the World. The religion of Islam has always accorded a pre-eminent position to rule of law. International law under the Islamic rule had thrived in some way or other until the collapse of the Ottoman Empire in 1914.

Islamic international law falls into monist category because it holds the view that the legal and moral source on which domestic and international laws originate is one. Many centuries earlier, international law under Islamic system worked out many principles of law on various subjects and in doing so it broke new ground. Many of them are now in existence in modern international law.

Islamic scholars maintain that the Sharia (the Arabic word for 'track' or 'road') includes many excellent provisions about declarations of war, conduct of war, treatment of prisoners of war and non-combatants, property in occupied enemy territory, guarantee of safe conduct for non-combatants and treaty of peace. In 1984 the Deputy Rector of Chulalongkorn University in Bangkok (a non-Muslim), at a seminar on Islamic international law, made the following observation: " I have never realised how truly liberal, progressive, and broad-minded Islamic law is."

Islam considers peace as the normal state of affairs in international community. Furthermore states have an obligation to do good work for people. There is a verse in the Holy Qu'ran (Surah V: Verse 48) that declares : " But that He may try you by that He has given you. So vie one another with good work". Many Islamic scholars have interpreted this verse to mean that competition in good work among states is an obligation under Islamic international law.

They argue that the very concept of good work by states found recognition in the UN Charter in the words such as "to practise tolerance and live together in peace with one another as good neighbours andů to employ international machinery for the promotion of the economic and social advancement of all peoples" (second paragraph of the preamble of the UN Charter). The promotion of international co-operation for good of the people of the world, as advocated by Islamic international law, has been codified in the UN Charter.

Islamic law underscored the scrupulous compliance of the treaty provisions. Although the non-Muslims had breached the Treaty of Hudaibiya, Muslims had strictly complied with it. The compliance of treaty provisions has now been recognised in the 1969 Vienna Law of Treaties, under the heading of 'Pacta sunt servanda", Article 26 stated: " Every treaty in force is binding upon the parties to it and must be performed by them in good faith."

Another important contribution of Islamic international law is the dichotomy between universal and regional international law. A group of law was applicable to only among Islamic states, while universal law was applied to all states, such as, Byzantine and Persian Empires. The same division is found in modern international law. The universal international law applies to each and every state; for example, crime of genocide is not prohibited for all states. Regional international law is applicable only to regional states. For instance, a law agreed under SAARC (South Asian Association For Regional Co-operation) is only applicable to seven South Asian countries and not to others.

Finally, strict diplomatic protocol in the exchange of envoys was observed when the Prophet (Pbuh) sent his envoys to Roman and Persian Emperors in the 7th century. Almost identical protocol has now been in vogue and rights (immunities) and privileges of diplomats have been laid down in the 1961 Vienna Convention on Diplomatic Relations.

Islamic law and Human Rights
Islam opposes imperialism because it suppresses and oppresses people's rights under the regime. The incident of Pharaoh in Egypt and his oppressive treatment of the Jews have been condemned by Islamic law. The condemnation indicates that Islamic law does not approve despots or tyrants. This implies that not only democracy (people's voice and representation) must prevail but also human rights must be respected and no dictator should encroach upon the dignity of a human being.

Islamic law also disapproves economic exploitation (charging exorbitant rate of interest -'usury'- by a moneylender) that in turn may develop into a threat to social peace and stability. Islam insists on peaceful settlement of disputes, for example, the Prophet (Pbuh) concluded a peace treaty (Treaty of Hudaibiya) in 628 AD with non-Muslims of Mecca. All these Islamic principles have found recognition in the UN Charter. The mode of peaceful settlement of disputes (negotiation, mediation, conciliation, arbitration and judicial settlement) has been codified in Article 33 of the UN Charter.

Concept of War under Islamic Law
Under Islamic law, war can only waged as a defence. There is a clear injunction in the Holy Qu'ran (Surah II, Verse 190) as follows: " Fight in Allah's cause against those who wage war against you, but do not commit aggression, for verily Allah does not love aggressors". This verse makes it clear that wars can only be defensive, not offensive. This implies that US-led Iraqi war is not permissible under Islamic international law. So is the case under the UN Charter. Furthermore, the terms "aggression" and "unjust wars" are now used in modern international law and Islamic scholars argue that these concepts were borrowed from Islamic international law.

Conclusion
The above paragraphs provide only a glimpse of contribution of Islamic law to modern international law. They also show how close the precepts of modern international law and Islamic law. The similarity is a credit to Islamic international law that came into being some 1000 years before the emergence of Western international law, founded by the Dutch jurist Grotius (1583-1645). Regrettably, Islamic contribution has not been recognised in books authored by most Western writers.

Barrister Harun ur Rashid Former Bangladesh Ambassador to the UN, Geneva.

 









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