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1 the UNIVERSITY of HULL Islamic Diplomatic Law and International THE UNIVERSITY OF HULL Islamic Diplomatic Law and International Diplomatic Law: A Quest for Compatibility being a Thesis submitted for the Degree of Doctor of Philosophy in the University of Hull by Muhammad-Basheer Adisa Ismail, LL.B (B.U.K., Kano), B.L (Lagos), LL.M (O.A.U., Ile-Ife) (November, 2012) .1 ABSTRACT Most literatures on international law have been observed to neglect or give scanty attention to the contribution of Islamic law towards the development of modern international law, particularly the principles relating to the diplomatic immunity and privileges. It has often been maintained, especially by some Western commentators that there is no modicum of materiality between Islamic siyar and the rules of conventional international law; as such, Islamic law has nothing to offer the international legal system. The current spades of global terrorism which are allegedly perpetrated in the name of Islam against diplomatic institutions have further widened this perceived incongruity between the two legal regimes. This study therefore critiques and also evaluates the exactitude of the contention that the sources of the two legal regimes are incompatible. This study equally examines the compatibility in the diplomatic principles between Islamic diplomatic law and international diplomatic law. It also contends that the attacks on diplomats and diplomatic facilities are antithetical to the classical principles of jihaad and Islamic diplomatic law. It further argues that the need to harmonise the two legal systems and have a thorough cross-cultural understanding amongst nations generally with a view to enhancing unfettered diplomatic cooperation should be of paramount priority. .2 ACKNOWLEDGEMENTS What else can I say other than to acknowledge, first and foremost, the mercy and assistance of Allah particularly in seeing me through the entire period of my PhD. Al-hamdulillaah. I am, of course, greatly indebted to my first supervisor, Dr Niaz Shah, for his intellectual guidance, encouragement and unflattering comments throughout this study. His moral assistance, most especially, during and after my ill-health condition is worthy of mention and deserves to be thanked. Same goes for my second supervisor, Dr Richard Burchill, for his sharp but fair observations of the entire study. I would also express my profound gratitude to some academic staff of the Law School, University of Hull such as Professor Mike Feintuck, Vassilis Tzevelokus and Dr Rhuks Ako for their various supports at different stages of this study. I will also thank my friends and colleagues who have, in one way or another contributed towards the successful completion of this study. They include, but definitely not limited to, Dr Abdul-Hakeem Yusuf, Dr Garba Ibrahim Malumfashi, David Jarvis, Barrister Abiodun Akinmaiyejolu, Barrister Ishaq Bakare, Izzudeen Ani’ma, Faihan Hagshah, Feisal Farah, Suleiman Tahir and Dr Luqman Zakariyyah. Special thanks also go to my cousins, Taiwo and Kehinde Bakare for their support. I also wish to thank the administrative staff of the Law School, University of Hull, especially Donna Knight and Ann Ashbridge for giving me all the necessary administrative guidance. I cannot .3 forget to thank all the staff of the Graduate School particularly Dr Nigel Shaw and Suzie O’Connor for their kind assistance. Most importantly, I will always remain grateful to my better half, Fauziyyah Adebukola Ismail, for being beside me throughout the difficult period while I was working on this dissertation. Her enduring character and words of encouragement deserve a very big thank you. I must also acknowledge the endurance and support I received from my children, Hameedah, Sumayyah, Mus’ab, Yaasir, Rumaysah and Hibatullah during the duration of this study. Since all perfection belongs to Allah alone, I therefore take the responsibility of any errors contained in this dissertation. .4 TABLE OF CONTENTS Pages Abstract - - - - - - - 2 Acknowledgments - - - - - - - 3 Table of Contents - - - - - - - 5 Table of Cases - - - - - - - 10 Table of Treaties and Statutes - - - - - - 13 Abbreviations - - - - - - - 15 Chapter 1: Introduction 16 1.1 General Background - - - - - - 16 1.2 Research Question - - - - - - - 26 1.2.1 Whether and to What Extent Is Islamic Diplomatic Law Compatible with International Diplomatic Law? - - - 26 1.2.2 Muslim States Practice - - - - - 30 1.2.3 The Attacks of Muslim Armed Groups on Diplomats and Diplomatic Facilities - - - - - - 32 1.3 Theoretical Approaches to the Study - - - - 33 1.3.1 A Non-Compatibility Approach - - - - - 33 1.3.2 Compatibility Approach - - - - - - 35 1.3.3 Reconciliatory Approach - - - - - - 37 1.4 Significance of the Compatibility Approach - - - 39 1.5 Aims and Objectives of the Study - - - - 41 1.6 Methodology and Terminology - - - - - 43 1.7 Outline of Chapters - - - - - - 45 Chapter 2: Historical Overview of the Universality of Diplomatic Practice 49 2.1 Introduction - - - - - - - 49 2.2 Defining Diplomacy and Diplomatic Law - - - 50 2.3 Diplomatic Law in Antiquity - - - - - 55 2.3.1 Diplomatic Practice in the Greek Civilisation - - - 58 2.3.2 Diplomatic Practice in the Roman Civilisation - - - 61 2.3.3 Diplomatic Practice in the Indian Civilisation - - - 65 2.3.4 Diplomatic Practice in the Chinese Civilisation - - - 67 2.3.5 Diplomatic Practice in African Civilisation - - - 72 2.3.6 Diplomatic Practice in the Islamic Civilisation - - - 77 2.3.6.1 The Islamic Connotation of ‘Safara’ - - - 77 2.3.6.2 Islamic Diplomatic Law - - - - - 78 2.3.6.3 Diplomatic Practice at the Time of Prophet Muhammad (570-632 AD) - - - - - - 81 2.3.6.4 Diplomatic Practice: The First Four Caliphs (632-661 AD) 87 2.3.6.5 Diplomatic Practice: The Umayyad and Abbasid Period (661-750 AD) - - - - - - 88 .5 2.3.6.6 Diplomatic Practice: The Ottoman Era (1260-1800 AD) 92 2.4 Historical Survey of the Contribution of Islamic Law to the Development of the International Diplomatic Law - - - - - - - - 98 2.5 Conclusion - - - - - - - 109 Chapter 3: Sources of Islamic and International Diplomatic Laws: Between Tension and Compatibility 110 3.1 Introduction - - - - - - 110 3.2 Sources of Islamic Diplomatic Law - - - 112 3.2.1 Islamic Law: Distinction between Shari’ah and Fiqh (Jurisprudence) - - - - - 113 3.2.2 Definitional Connotation of ‘Sources’ in Islamic Law - 115 3.2.3 The Qur’an - - - - - - - 117 3.2.4 The Sunnah - - - - - - - 121 3.2.5 Ijtihaad: A Manifestation of Methods and Principles of Islamic Law - - - - - - 124 3.2.6 Ijmaa’ (Consensus of Opinion) - - - - 126 3.2.7 Qiyaas (Analogical Deduction) - - - - 129 3.2.8 Istihsaan (Juristic Preference) - - - - 130 3.2.9 Maslahah (Public Interest) - - - - 132 3.2.10 ‘Urf (Prevailing Local Custom) - - - - 134 3.2.11 Consistent Practices of the Caliphs and Islamic Rulers - 136 3.3 Sources of International Diplomatic Law - - 137 3.3.1 International Customary Law - - - - 139 A. The Objective Element ‘of a General Practice’ - 141 B. The Subjective Element ‘of Accepted as Law’ - 144 3.3.2 International Treaties - - - - 146 3.3.3 General Principles of Law - - - - - 150 3.3.4 Judicial Decisions and Scholarly Writings - - 156 3.4 The Possibility of Compatibility in the Legal Sources of International Diplomatic Law and Islamic Diplomatic Law - - - - - - 159 3.4.1 The Analogy of International Treaty - - - 160 3.4.2 The Analogy of International Customary Law - - 164 3.4.3 The Analogy of General Principles of Law - - 165 3.5 Conclusion - - - - - - - 168 Chapter 4: A Macroscopic Overview of Diplomatic Immunity In International Diplomatic Law and Islamic Law 170 4.1 Introduction - - - - - - 170 4.2 The Theoretical Justifications Underlying Diplomatic Inviolability and Immunities - - - - 171 .6 4.2.1 Diplomatic Inviolability and Immunities under International Law - - - - - 171 A. Representative Character Theory - - - 172 B. Exterritoriality Theory: A Fictional Justification of Immunity - - - - 175 C. Functional Necessity Theory: A Practical Justification of Immunity - - - - 177 4.2.2 Justification for Diplomatic Immunity in Islamic International Law (Siyar) - - - - - 180 4.3 Codification of Diplomatic Immunities and the Protection of Diplomatic Personnel - - - 182 4.3.1 Movement in the Direction of Uniform Codification - 182 4.3.2 The Making of the 1961 Convention on Diplomatic Relations - - - - - - - 183 4.3.3 Diplomatic Immunities According to the 1961 Vienna Convention - - - - - - - 186 4.3.3.1 Personal Inviolability - - - - - 187 4.3.3.2 Inviolability of Mission Premises and Private Residence 190 4.3.3.3 Inviolability of the Mission’s Archives - - - 194 4.3.3.4 Freedom of Communication - - - - 195 4.3.3.5 Protection of Diplomatic Bag and Couriers - - 198 4.3.3.6 Immunity from Criminal and Civil Jurisdiction - - 201 4.3.3.7 Freedom of Movement - - - - - 205 4.3.3.8 Immunity from Taxation - - - - - 207 4.3.3.9 Exemption from Customs Duties - - - - 209 4.4 The Treaty of Hudaybiyyah (628 AD) and the Concept of Diplomatic Immunity under Islamic Siyar - 211 4.4.1 Events Leading to the Making of the Treaty of Hudaybiyyah - - - - - - - 212 4.4.2 The Making of the Treaty of Hudaybiyyah - - 214 4.4.3 Legal Authority of Islamic Diplomatic Immunities - 217 4.4.3.1 Text from the Qur’an - - - - - 218 4.4.3.2 The Prophetic Tradition - - - - - 219 4.4.3.3 Consistent Practice of Muslim Heads of State - - 220 4.4.4 Diplomatic Immunities under the Islamic Siyar - - 221 4.4.4.1 Personal Inviolability - - - - - 221 4.4.4.2 Immunity from Court’s Jurisdiction - - - 224 4.4.4.3 Freedom of Religion - - - - - 227 4.4.4.4 Exemption
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