Brill

Chapter Title: ISLAMIC INTERNATIONAL LAW WITHIN MUNICIPAL LAW

Book Title: Principles of Islamic International Criminal Law

Book Subtitle: A Comparative Search
Book Author(s): Farhad Malekian
Published by: Brill. (2011)
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 chapter five

ISLAMIC INTERNATIONAL LAW

WITHIN MUNICIPAL LAW

. Introduction

The relation between public international law and municipal law has
been one of the most important topics of international law. There have
been various schools of thought presenting the nature of relations be-
tween these two systems of law. Their theories have caused serious
controversy between various international lawyers and this problem is
one of the most important issues in the field of public international law.1
These conflicts have, principally, been based on issues of dualism and
monism. On the one hand, there is a certain central agreement between
these two legal systems on the matter of enforcement of international
law. On the other hand, the question whether municipal or international
law is the master of law and order is still an essential question between
the aforementioned schools and this controversy has still to be settled.
One of the essential reasons for this is that state sovereignty is still
the master of law-making treaties, law-making power and law-making
enforcement which in turn causes a considerable number of problems in
the enforcement of the serious norms of international law.
One of the significant values of Islamic international law is that the
above issue does not exist within its legal system and the non-existence of
the above conflict functions as an important privilege in the enforcement

1 The nature of public international law has been one of the most serious questions
of legal theories between western writers. One serious objection to the system of interna-
tional law has been that the system lacks, juridically and practically, the three necessary
elements for producing and implementing the law. These are legislature, the executive and
sanction. Therefore it is claimed that international law does not own the proper function
of law and its definition. Kelsen who gives common basis for the evolution and develop-
ment of the law has introduced one of the most authoritative definitions. But, his view
has also been subject to criticism, because, it is a theory based on the assumption that
municipal law is subject to international law. According to him municipal law has to take
its order from international law and since the legal enforceability of international law is in
itself subject to debate, his theory has variously been analysed by scholars of international
law.

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 chapter five

of the provisions of Islamic international law between Islamic states.

While it is a fact that both systems of international law have their own
interpretations and applications, they establish certain rules for the en-
forcement of their provisions that are sometimes very difficult to enforce.
Conflicts within public international law cannot be solved in isolation
from the question of the unlimited power of state sovereignty over their
territory. Equally, the provisions of Islamic international law have not
been free from political tides and various divisions between different reli-
gious groups. Both systems have therefore certain difficulties concerning
the interpretation of their rules under the limits of the sovereign power.

. No Issues of Municipal Law

.. Major Similarities

Islamic international law does not generally differ in a number of sig-
nificant details from the Islamic states’ domestic systems. The reason
for this is that Islamic international law and the domestic systems of
Islamic states are based on the same source which is applicable to differ-
ent juridical issues.2 This facilitates most conflicts which may normally
arise between public international law and municipal systems.3
Generally speaking, municipal systems differ from public interna-
tional law and this creates great difficulty in the formulation and adap-
tation of soft national and international systems.4 Public international
law does not therefore have major similarities with municipal systems5
but this is quite different for Islamic international law.6 For example, the
system of public international law does not have compulsory jurisdic-
tion and therefore perpetrators of various crimes may escape punish-
ment because of the lack of an appropriate international enforcement
measure. Even, the machinery of the permanent International Criminal
Court may not enforce the law, as long as states do not work and coop-

2Id., pp. –.

3Maryan N.A. Green, International Law (), p. .
4 Brownlie, Principles of Public International Law, pp. –.
5 ‘In principle, municipal law may ignore international law: if a state incorporates

rules of international law into its municipal law, it does so as a matter of free choice and
convenience.’ Green, International Law, p. .
6 Under Islamic law, both Islamic international law and municipal systems constitute

an integral part of one system. This is the most preferable system of law according to
Islamic philosophy. The reason for this is that Islamic law does not, in essence, make a
difference between law of state, national law or international law.

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 islamic international law within municipal law 

erate with its purposes. In fact, international criminals cannot be pros-

ecuted and punished without a particular force and attention by states.
The system of public international law lacks police authority to enforce
its rules and obligations. Islamic international law has, contrary to pub-
lic international law, major similarities with its municipal systems and
the question of which system of law takes precedence over the other has
no place within its legal system. The Islamic system presents a system
of law which includes, among other things, municipal and international
legal systems at the same level. However, one cannot decline that the sys-
tem of public international law works extensively to implement its rules
and provisions within all municipal legal systems and create an effective
international legal system within municipal laws. A clear example is the
provisions of the system of international human rights law which are to
be adopted within domestic systems and be enforced as an integral part
of their jurisdictions.

.. Major Implementation

The Islamic international law has practised a different policy concern-
ing the implementation of its international legal system. Islamic law has
emanated from and is regulated by one original source and since its laws
are meant to be implemented by all domestic courts at the same degree
and level, its implementation must be equal. In contrast to this, the sys-
tem of public international law does not generally rest on the implemen-
tation of international law by domestic courts; moreover, domestic courts
are not authorized by all states or by international law to carry out its
juridical provisions.
There are very few instances in the system of public international law
which are acceptable to most states and have not needed reconsideration.
A clear example of this is the right of jurisdiction over the crime of piracy.
Parties to some of the contemporary international conventions are, how-
ever, authorized to enforce their provisions concerning the prosecution
of perpetrators of international crimes, but this has been very difficult
in practice because of certain provisions of internal law. For example, a
considerable number of treaties on the question of extradition between
various states, have made the implementation of relevant international
criminal provisions governing serious international crimes a very com-
plicated dilemma.

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 chapter five

. Issues of Sovereignty

.. Doctrines
One important aspect of Islamic international law is that it is not based, as
the system of international law is, on the extreme doctrines of sovereign-
ty.7 This is because Islamic international law is a manifestation of indi-
vidual rights and obligations rather than the regulations of a sovereign
power(s).8 Although the law recognises the existence of different states,
its principal purpose and function is based on the equal rights of all indi-
viduals and states.
On the whole, Islamic international law is principally based on indi-
vidual rights and duties and was originally an international law of indi-
viduals compared with that of public international law which has basi-
cally been the international law of states. According to one writer, Islamic
international law constitutes the law of individuals rights rather than
states rights. According to him: “It has only been in modern times, espe-
cially under the pressure of modern material civilisation and culture that
the observance of law has been attached to people in relation to the

7 Under Islamic law sovereignty belongs to God and all other forms of sovereignty

are superficial. Divine law has absolute priority over all other laws within Islamic states.
8 Islamic states have several types of duties towards their population and these

should not be ignored in Islamic interstate conduct. The first is executive duty which is
principally the duty of Islamic governments when they have come into power. However,
the fact that the Islamic concept of sovereignty is different from that which is generally
understood under other legislations must not be ignored. This is because, according
to Islam, sovereignty belongs to God and it is therefore a public interest which is
organized and administered by internal authorities without exceptions for the well-
being of everyone. The executive duty of a state implies also both, civil and military
administrations. The second is legislative duty which regulates the rules and obligations
for social conducts. It must however be admitted that the legislative duty of an Islamic
state is already fixed and basically rests on the provisions of the Qur" ān. This, in essence,
constitutes the basic source of law in the social and international conduct of states,
governments and individuals. The third duty of an Islamic state is, like other non-
Islamic states, judiciary duty. This duty relates to laws and social orders. In order for
the judiciary duty of an Islamic state to be appropriate it must treat, before the law,
all individuals as equal to one another. This is a basic principle which must also be
fulfilled in the case of heads of states or governments. The fourth duty of an Islamic
state is to develop Islamic culture including rules and legislations for the purpose of the
accurate recognition of Islam by other states. Thus, an Islamic state is under a recognised
duty to arrange different diplomatic missions for the development of cultural relations
with other states. According to the foundation of Islam, no Islamic state has the right
to force the Islamic system on other states. However, this has not historically been
respected.

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 islamic international law within municipal law 

territory they live in rather than in relation to the group they belong to.”9
The same writer further clarifies that:
We may argue, from a philosophical viewpoint, that Islam, as a universal
religion, laid emphasis on individual allegiance to a faith which recognised
no boundaries for its kingdom: for under a system which claims to be
universal territory ceases to be a deciding factor in the intercourse among
people. Piety and obedience to God were the criteria of a good citizen
under the Islamic ideology, rather than race, class, or attachment to a
certain home or country. Failing to achieve this ideal, the Muslim jurists
did not give up the concept of the personality of the law, that is, its binding
character on individuals, not on territorial groups.10
A part from the doctrine of sovereignty power, there are writers in pub-
lic international law who try to link municipal and international law, for
example, the philosopher of law Hans Kelsen. Similar ideas to Islamic
international law can be found in the theory of Kelsen.11 According to
him, municipal and international law have basically the same norms for
the development of their scopes of applicability.12 He argues that inter-
national norms are the development of municipal norms13 but do not,
however, have the real virtues of enforceability, applicability and account-
ability like municipal systems. For him, norms of international law are
primitive and therefore incomplete compared with municipal norms.14
The theory of Kelsen is and is not consolidated within the system of inter-
national law. It has, nevertheless, played an important function in the
development of international theories based on the relationship between
municipal and international law.15

9 Khadduri, War and Peace in the Law of Islam, pp. –.

10 Id.
11 Kelsen is one of the most well-known international law writers of the twentieth

century. His opinion has been studied in most relevant academic institutions. He has,
essentially, argued on the juridical and philosophical aspects of ‘pure theory of law’ and
also on the matter of individual and state responsibility in international arena.
12 He further argues that the municipal system has its legal validity and this is the

same for the system of international law. The former is based on constitutional values or
rules and obligations which are accepted and adopted by the authorities through legal
process. The latter i.e. international law is principally based on international treaties and
customary law, both of which together constitute the framework of the international
legal system. Since treaties and customary obligations internationally bind states, they
are therefore under legal duties to fulfil their international obligations. This is called in
the system of international law pacta sunt servanda. Kelsen is thus of the opinion that
‘states ought to behave as they have customarily behaved.’
13 Lord Lloyd Hampstead, Introduction to Jurisprudence (), p. .
14 See Khadduri, War and Peace in the Law of Islam, p. .
15 Kelsen’s theory therefore links domestic law with international law to one original

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 chapter five

.. Spiritual Values

Islam emphasizes on the real value of man and his spiritual nature. It
does not put any weight on totalitarian theory and therefore rejects all
issues of limitation based on material values.16 Due to the totalitarian
state theory, states could not bind themselves to all types of international
agreements. Even if the concept of totalitarian states is now very rare
in public international law, the theory that all international conventions
are not applicable under the domestic system has, not only, not been
abolished, but it also plays, a significant role in the enforceability and
non-enforceability of international conventions.
According to the domestic systems of most states, international con-
ventions must be signed and ratified by internal authorities and must
be adopted into municipal systems.17 Consequently, most rules of inter-
national law, having a conventional character, are binding only in states
which have accepted their legal obligations. This is based on the princi-
ple of given consent to the provisions of a treaty. States may even make, a
reservation or understanding of international treaties, even though they
have ratified them in accordance with their constitutional provisions. The
treaties of this types having been ratified by states are indeed numerous.
A recent clear example is the  Statute of ICC.18

source that is what the system of Islamic international law also represents. Although
we do not claim that Kelsen presents the Islamic concept of law, it is nevertheless
the case that his opinion overlaps on some important principles with that of Islamic
international law. This is because Kelsen has, in his opinion on the pure theory of law,
exclusively searched for an accurate definition of the subject matter. For him, law should
be scientific and not political. In other words, the pure theory of law solely relates to
that part of knowledge which deals with the law exclusively. Islamic law, in principle
deals with legal questions and does not therefore deal with the politics of law. Although,
this law has greatly been developed and modified in the process of its applications by
the Islamic states, its framework and principal functions are the same, however. One of
the most unfortunate facts is that the law is used as a political instrument to express
the interests of a handful of individuals who have occupied sovereign power within the
state.
16 This is the pure theory of Islamic law and state. This was also the case when the

Prophet of Islam created the first Islamic state in Medinah. However, the later practice of
Islamic states varied considerably and from the theory of spiritualization, it become, in
practice, more and more materialized which caused various conflicts and finally wars
between those who sought the leadership of Islamic states. Thus, the pure theory of
Islamic law based on divine law changed its direction considerably.
17 See chapter two.
18 For instance see reservations to the Statute of ICC by the Eastern Republic of

Uruguay, Australian reservation, France and Colombia.

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 islamic international law within municipal law 

For the above reason, international conventions ratified by certain

states may not be enforced under the jurisdiction of their national sys-
tems. Under Islamic international law, an international convention rati-
fied by an Islamic state should, not only, be enforced under its national
system because of the given consent for its enforcement, but also, for the
reason that the convention could not have been adopted if it was contrary
to the basic legislation of Islamic law, i.e. the Qur" ān.19
Although, this explanation may not be entirely satisfactory in the
system of public international law, the given consent of an Islamic state
must be sufficient for the implementation of conventional international
law. In other words, under the system of public international law, it is the
law which must be accepted by the community of states while under Islamic
international law, the conduct of the state must accept the law. This means
that the conduct of state should not be against the law and its order. In
other words, a state is not permitted to interpret the law as it wishes and
ignore the sole purpose or object of the law.
More clearly, under Islamic international law, certain basic principles
are fixed and cannot be modified by the conduct of states. When a treaty
has already been accepted by an Islamic nation, it has to be in conformity
with Islamic law and therefore a state which has ratified the treaty should
not later claim that the treaty was against its internal law. The provisions
of the relevant law have to be developed as an integral part of its internal
rules and as a part of its progressive adaptability as well as the changing
facet of Islamic law within the international community as a whole.
We do not however disagree with the fact that the practices of Muslim
states do not altogether coincide with the sole purpose of the law. It is
also a well-known fact that in public international law, decisions of the
International Court of Justice relating to international issues brought
before the court, international treaties having multilateral character, as
well as resolutions of the United Nations General Assembly which are
unanimously adopted by states, do not have the power of applicability.
This is, as long as, certain treaties have not been approved by internal
sovereign authorities.20

19 One of the most useful characterizations of Islamic international law is that its legal

nature is very adaptable and therefore many rules and obligations can be adopted into
its general legislations. For instance, Islamic international law can orient itself to the
rules of international conventional law and therefore the provisions of most international
conventions coincide with its characterization. It is for this essential reason that most
international conventions are signed and ratified by Islamic states.
20 See generally A.D. McNair, Law of Treaties (); Hans Blix, Treaty-Making Power

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 chapter five

.. Superiority
Whilst the international legal order is achieving a type of technique in
which the consent of states for the application of international obligations
is necessary, it is no longer a decisive factor concerning certain particular
cases. This is because the effects of certain provisions of customary and
international law of jus cogens are so important that the requirement of
consent has lost its legal validity. Two clear examples are the law of the
sea and the Geneva Conventions relating to armed conflicts applicable
to all states of our international legal community irrespective of their
participation in the conclusion of the relevant instruments. These means
that no reason of religious, constitutional, domestic, cultural, political,
military or any other motive can create a basis for the mistreatment or
violations of jus cogens norms.
The system of international law therefore takes precedence over states
within the law in those areas. The reason for this is that certain provisions
of international law are, basically, so important and essential for the
safeguarding of peace, justice and human rights in international legal and
political community that they cannot be ignored in the conduct of states.
Nevertheless, this especial type of characterization of international law is
not, in certain areas, consolidated in the international legal community
and states are not ready to accept the superiority of the provisions of
international law over their domestic provisions. In other words, they
do not permit any limitation over their sovereign power.
Islamic international law has, however, no discussion on the priority of
the law. Both systems of municipal laws and international law are parts of
the same body of the law and the whole system of the law is employed for
the purpose of creating equivalent norms between the subjects of the law.
Thus, states and individuals are an integral part of the same machinery
and for this essential reason no issues of extreme doctrines of sovereignty
arises under Islamic law. There is naturally a close relationship between
the policy of the law and the individual interests.21 This concept of the
legal system is also integrated into Islamic international law and due to
this recognition, all states should be equal before its statute and the law
should not recognize superiority between the Islamic system and the

(); Brownlie, Principles of Public International Law; C.L. Rozakis, The Concept of Jus
Cogens in the Law of Treaties ().
21 However, this is not true in practice.

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 islamic international law within municipal law 

system of international law. Nations and their laws are equal before the
Islamic legal system based on its first source.

. Islamic Political Framework

One should always bear in mind that the political framework of Islamic
international law has functioned as an equal to its political framework
in the national system and since there is not essentially any difference
between these two legal systems of the law, they overlap one another in
their policies of applications. Under Islamic law, the political system is
founded on three basic consolidated prinicples. These are the principle
of tawhid, the principle of risala and the principle of khilafat. These
principles actually constitute the basic phenomenon of Islamic law and
Islamic international law for the orientation and the employment of the
Islamic system.

.. Tawhid
Tawhid means that there is solely one God, creator of all mankind
and the universe. This also includes everything in the universe whether
organic or inorganic. This principle of the quality of being solely one
creator makes the perception of the legal and political sovereignty of
states insignificant. No class of different races can situate itself above the
universal law of nations principally developed with the will of divinity.
Accordingly, the strength of spiritual will creates laws and legal order.
This may include humanitarian laws, human rights norms or Islamic
law. They demonstrate God’s basic commandments.22 The term “tawhid”
means also believing in one judgment which is above all aspects or
theories that are created by man. Tawhid is thus the manifestation of
God’s will and his broad power and authority in the spirit of man. Tawhid
also implies the universality of justice and the existence of the union
of mankind under one law and one legal system, even though, they are
divided into different nations and national legal systems. As long as they
keep the norms of humanity and do not violate the basic ethical norms
of man i.e. equality, brotherhood and justice, they are regarded equitable
to the universal union of man.

22 Abul A"la Mawdudi, Human Rigths in Islam, nd. ed (), p. .

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 chapter five

.. Risala
The second principle of the political framework of Islam consists of the
Qur" ān and the Prophet of Islam as the authoritative man in interpreting
the Qur" ān. This is the way in which the words of God have been revealed
to mankind, so called risala. It denotes therefore the key representative
of the God who was nominated in order to reveal the Islamic universal
law to all of mankind regardless of their global sovereignty as well as their
territories. Consequently, risala constitutes one of the three cornerstones
of the Islamic philosophy of law and Islamic international law. Risala
promulgates the universality of justice, equality, brotherhood, peace and
freedom of mankind from the dictated law of man applied by force. This
means that risala does not disagree with other laws or other nations. It
understands the value of man and their international relations equally
from various points of view.

.. Khilafa
Khilafa means the successor to the Prophet Mohammed as political, mili-
tary and administrative leader of Islam. Thus, the word khilafa came to be
known in the world of Islam after the death of the Prophet. But, this does
not mean that they presented the duties of the Prophet. In the context
of Islam, the word Khilafa is employed to imply the government of the
Muslim state or the guardians. The head of the government was, there-
fore, called Khalifa. He had different duties, inter alia, safeguarding Islam,
creating justice, protecting the territorial integrity of the state, protect-
ing the rights of Muslims abroad and struggling for the maintenance of
peace, justice and equality for all nations of the world as a whole.

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