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The Application of Shari'ah and International Human Rights Law In The Application of Shari’ah and International Human Rights Law in Saudi Arabia A dissertation submitted for the degree of Doctor of Philosophy by Abdulaziz S. Al-Rodiman School of Law, Brunel University April 2013 Dedication This dissertation is dedicated to my beloved parents and my family. I Abstract The present dissertation provides an analytical and comparative study of the application of Islamic law (Shari’ah) and international human rights law in the Kingdom of Saudi Arabia. It provides an analysis of the sources of Islamic law as well as the sources of international law to set the background for analysis and defines the nature of both laws. It also tackles the subject of the domestic application of international human treaties in Saudi Arabia. In addition, it examines some reservations Saudi Arabia has entered to some of the international human rights treaties it has ratified, specifically the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the Convention on the Rights of the Child (CRC). It also sheds some light on the political, cultural and religious obstacles to the realisation of norms protected by international human rights treaties in the country, and in other countries for that matter, clearly stating the impossibility of implementing the provisions of the international human rights treaties in their entirety. This is due to the various political and legal developments towards the internationalization of the concept of human rights. It observes that despite the existence of the international human rights treaties, which aim at reinforcing a universal realisation of international human rights, these rights cannot be possibly realised by all countries. To stress the importance Saudi Arabia attaches to the issue of human rights, the dissertation discusses some rights of women before Saudi courts in family matters, an issue which has been criticised by some international human rights treaties, and examines to what extent the country has managed to tackle the issue of domestic violence, particularly violence against women. It provides an overview of the major causes of domestic violence against women in Saudi Arabia, presents some cases of domestic violence before Saudi courts and sheds some II light on the measures taken by the Saudi government to combat domestic violence against women. It also tackles this issue both in the international and domestic legal frameworks, clearly stating the Islamic standpoint on the issue, namely that Islamic law, and Saudi Arabia for that matter, whose laws are essentially derived from the two main sources of Shari’ah. It also discusses the common forms of violence against women in Saudi Arabia and suggests a number of recommendations towards more effective protection of women against violence in the country. The dissertation concludes by presenting a number of obstacles in the way of executing judicial decisions in the Kingdom as well as the obstacles which negatively affect the performance of the new code of law practice. It also presents some recommendations concerning personal status law obstacles and hindrances to progress and attempts to answer the research questions it has posed. III Acknowledgments It is a pleasure to thank those who made this dissertation possible. First of all, I am indebted to Almighty Allah who has provided me with all the assistance I needed. My thanks also go to the Custodian of the Two Holy Mosques, King ‘Abdullah bin ‘Abdul-Aziz Al-Saud, who issued his royal order for me to complete my post-graduate studies and for his unfailing support of the judiciary in the Kingdom. I am heartily thankful to His Royal Highness Dr. Bandar ibn Salman Al Saud, Advisor to King ‘Abdullah and Chief of the Saudi Arbitration Team, for his support and encouragement. I am also grateful to the President of the Supreme Judicial Council, the Minister of Justice and Chairman of the Board of Grievances, for their encouragement and invaluable ideas during the discussion which I held with them while the research was in preparation. My thanks also go to all my judicial colleagues in the General Court, the Criminal Court, the Court of Appeal and the Supreme Court for their cooperation and assistance and for supplying me with the important judicial cases which I included in my research. I also owe my deepest gratitude to my supervisor, Dr Manisuli Ssenyonjo, whose encouragement, guidance and support from the initial to the final level enabled me to develop an understanding of the subject. Lastly, I offer my regards and blessings to all of those who supported me in any respect during the completion of the project. IV Table of Contents Dedication ........................................................................................................................................ I Abstract ........................................................................................................................................... II Acknowledgments......................................................................................................................... IV List of Abbreviations .................................................................................................................... IX Glossary ........................................................................................................................................ XI List of International Instruments ................................................................................................ XVI List of Cases .............................................................................................................................. XVII Chapter I: General Introduction ...................................................................................................... 1 1. Introduction ................................................................................................................................ 1 2. Research Objective ..................................................................................................................... 7 3. Research Questions ..................................................................................................................... 8 4. Challenges ................................................................................................................................... 8 5. Methodology ............................................................................................................................... 9 Chapter II: The Sources of the Saudi Islamic Law (Shari’ah) and International Law ................... 1 1. Introduction ................................................................................................................................ 1 2. Islamic Law in Saudi Arabia and Its Sources ............................................................................. 2 2. Sources of Islamic Law ............................................................................................................... 5 2.1 Primary Sources ............................................................................................................... 5 2.1.1 The Qur’an ................................................................................................................ 5 2.1.2 Sunnah (The Prophet’s Tradition) ............................................................................. 7 2.2 Secondary Sources ......................................................................................................... 11 2.2.1 Ijma’ (Consensus) ................................................................................................... 11 2.2.2 Qiyas (Analogical Reasoning) ................................................................................ 14 2.2.3 Istihsan (Jurists’ Preference) ................................................................................... 16 2.2.4 Istis-hab (Presumption of Continuity) .................................................................... 18 2.2.5 ‘Urf (Custom)......................................................................................................... 19 3. Sources of International Law ................................................................................................... 20 3.1 Primary Sources of International Law ........................................................................... 20 3.1.1 International Custom ............................................................................................... 20 3.1.2 Treaties .................................................................................................................... 22 V 3.1.3 The General Principles of Law Recognised by the Community of Nations ........... 24 3.2 Secondary Sources of International Law ....................................................................... 26 3.2.1 Judicial Decisions ................................................................................................... 26 3.2.2 Soft Law .................................................................................................................. 27 3.2.3 Writers ..................................................................................................................... 29 4. Conclusion ................................................................................................................................ 31 Chapter III: Domestic Application of International Human Rights Treaties in Saudi Arabia ..... 35 1. Introduction
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