Islamic Law in the Jurisprudence of the International Court of Justice: An Analysis
35 Pages Posted: 5 May 2010
Date Written: 2007
This Article asks whether ICJ opinions to date suggest that judicial consideration of Islamic legal norms has played, can play, or should play a role in the ICJ's resolution of international legal disputes or in establishing the legitimacy of the results that it has reached. It is structured as follows. Part II gives an initial overview of the ICJ to help us understand how and why judges on the ICJ have reached the answers they have. Part III describes how the ICJ's enabling statute permits the Court, at least in theory, to look at Islamic legal norms. As I will show, the Court's Statute allows it to consider Islamic law in a number of different ways. It could use Islamic law as a source of legal norms, as a factor dictating how norms will be applied in particular circumstances, or it could use references to Islamic law as a tool of legitimation. That is to say, the Court might argue that even if international legal rules do not derive from Islamic sources, they are consistent with Islamic legal norms, and thus they bind all Muslim states. Part IV demonstrates that Islamic law is rarely referred to in ICJ judgments or in separate concurring or dissenting opinion.s Pat V details the different ways in which those few judges who refer to Islamic law have used the Islamic legal tradition. It provides a close reading of the ICJ opinions that do refer to Islamic law, which are almost entirely separate concurring or dissenting opinions. This discussion will make clear that different judges use the tradition for different reasons. Some argue that it should be used as a source of international legal norms; and some suggest that it should informs the Court's application of international legal norms--particularly in resolving disputes between majority Muslim states. Part VI concludes by noting some interesting issues of theory and policy that the ICJ opinions raise and asks if they give us any indication of how often, and for what purpose, Islamic law will be cited in the future.
Keywords: Islamic Law, International Court of Justice, ICJ, Shari'a, Muslim
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