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Thani, Ahmed Abdulla Farhan (1999) the Projected Arab Court of Justice Thani, Ahmed Abdulla Farhan (1999) The projected Arab Court of Justice: a study to its draft statute and rules, with specific reference to the International Court of Justice and principles of Islamic Shariah. PhD thesis. http://theses.gla.ac.uk/1571/ Copyright and moral rights for this thesis are retained by the author A copy can be downloaded for personal non-commercial research or study, without prior permission or charge This thesis cannot be reproduced or quoted extensively from without first obtaining permission in writing from the Author The content must not be changed in any way or sold commercially in any format or medium without the formal permission of the Author When referring to this work, full bibliographic details including the author, title, awarding institution and date of the thesis must be given Glasgow Theses Service http://theses.gla.ac.uk/ [email protected] The Projected Arab Court of Justice: A Study to its Draft Statute and Rules, with Specific Reference to the International Court of Justice and Principles of Islamic Shariah A Thesis Submitted for the Degree of Doctor of Philosophy by Ahmed Abdulla Farhan Thani The School of Law, Faculty of Law and Financial Studies, University of Glasgow May 1999 © Ahmed A. F. Thani, 1999 %%l TO MY WIFE SANA, MY SONS ABDULLA, ALI & ABDULRAHMAN. iv -0 (you) the one in (complete) rest and satisfaction! Come back to your Lord, well-pleased (yourself) and ivell-pleasing unto Him! Enter you, then, among My honoured slaves, and enter you etfy Paradise! " Quran, 89: 27-30. IN MEMORY OF HIS HIGHNESS SHAIKHISA BIN SALMANAL-KHALIFAH THE AMIR OF THE STATE OF BAHRAIN WHO DIED WHILE THIS THESIS WAS GOING TO FINISH V Acknowledgements I wish with considerable enthusiasm to acknowledge and express my deepest grateful thanks and gratitude to Dr. fain Scobbie for his invaluable guidance and encouragement in supervising this thesis. He has truly given me unsparingly of his time to it. Without his assistance, this work would no doubt have been a great deal frailer. However, I alone bear full responsibility for any misapprehensions or mistakes. It gives me great pleasure to acknowledge the helpfulness of the Glasgow University library staff. I would also wish to thank personally Lieutenant General Shaikh Khalifa Bin Ahmed Al-Khalifa Minister of Defence & Deputy Commander-in-Chief and Major General Abdulla Bin Salman Al-Khalifa Chief of Staff, for their continual. support and encouragement. Lastly I would also like to thank the Government of Bahrain for financing my study. V! Summary The judicial settlement of international disputes is an important requirement for peace in the international community. Therefore, creating judicial organs within regional or international organisations finds support among states and the majority of international lawyers. The present thesis deals with the projected Arab Court of Justice (ACJ) as a regional international court, expected to be created within the League of Arab States system. The present thesis dealing with the projected ACJ, consists of five chapters and final conclusions. Chapter one deals mainly with the basic structure of the League of Arab States itself, its membership, its organs, the settlement of disputes, and the reasons that are delaying the creation of the ACJ and the role it will be expected to play in settling inter-Arab disputes. In the second chapter comprehensive information on the function of the judicial power in Islamic Shariah is presented, including the status of judges in Islam, their appointment, qualifications, independence and other issues related to them. Chapter three concentrates on the organisation of the projected ACJ, comparing its draft Statute with the Statute of the International Court of Justice (ICJ) and other regional international courts. The chapter will also show how far the Arab draftsmen have been influenced by principles and rules of Islamic Shariah, especially in matters relating to the qualification of judges. Furthermore, the chapter will discuss other points related to the organisation of the bench such as nomination of candidates, system of election, constituting chambers, appointing ad hoc judges etc. The fourth chapter explains vii in detail level at the of theory as well as of practice the role of Islamic Shariah as a source to be applied by the projected ACJ. The chapter points to the need to discuss the origins and fundamental conceptions of Islamic Shariah as a law be capable to applied by the projected ACJ. Chapter five continues with a discussion of the jurisdiction of the ACJ, and makes detailed reference to the jurisdiction concepts of ratione personae, ratione materiae and the function of the ACJ to give advisory opinions. The thesis considers whether the Arab drafters have developed the above terms or have simply adopted them as they exist in the Statute of the International Court of Justice. The conclusions summarise the findings of the Thesis, and are accompanied by some critical remarks. viii Table of Contents Dedication iii Acknowledgements V Summary Vi Table of Abbreviations xiii Table of Cases xvi Introduction 1 Chapter One The Place of the Arab Court of Justice in the League of Arab States 1.1. The Establishment of the Arab League 6 1.1.1. Alexandria Protocol 12 1.1.2. The Pact of the Arab League 13 1.2. Organs of the Arab League 14 1.2.1. Organs Created under the Pact 14 1. The League's Council 14 2. The Permanent Secretariat General 17 3. The Permanent Committees 18 1.2.2. Organs Created under the Collective Security Treaty 19 1. The Joint Defence Council (JDC) 20 2. The Consultative Military Organisation (CMO) 20 3. The Permanent Military Commission (PMC) 21 4. The Arab Unified Command (AUC) 21 5. The Economic Council 21 1.3. Membership in the Arab League 22 1.3.1. Acquisition of Membership 23 1. Statehood 23 2. Independence 24 3. To be an Arab State 25 4. Approval by the League Council 26 1.3.2. Loss of Membership 28 1. Withdrawal 28 2. Expulsion 30 3. Suspension 30 4. Loss of International Legal Personality 31 1.4. The Pact of the Arab League and the Settlement of Disputes 32 1.5. The Necessity of the ACJ within the Arab League System 39 1.5.1. The Expected Role of the ACJ 40 ix 1. Settlement of Disputes 41 2. Interpretation of Treaties 42 3. Development of International Law 44 1.5.2. Attempts of Inclusion of a Judicial Organs in the Pact of the Arab League 45 1.5.2.1. Apparent reasons for the Failure 46 1. Political Disorder in the Arab World 47 A. The Syrian Attempts in 1951 47 B. The Iraqi Attempts in 1954 48 C. The Secretary-General's Attempt in 1955 48 D. Projects for Reform between 1959 and 1964 49 E. The Attempt of the Arab Summit in 1966 and 1974 50 2. Juridical Disagreements 51 1.5.2.2. Latent Reasons for the Failure 57 1. Arab Preference for Political Settlement 57 2. Arab States' Mistrust Concerning the Settlement of Disputes within the Arab League 59 Concluding Remarks 63 Chapter Two Judicial Power in Islamic Shariah 2.1. The Legality of the Judicial Power in Islam 65 2.2. The Judge's Qualifications 70 2.2.1. Islam 70 2.2.2. Adulthood 72 2.2.3. Sanity 73 2.2.4. Freedom 73 2.2.5. Defect-free Senses(able bodied) 74 2.2.6. Independent Reasoning(Ijtihad) 75 2.2.7. Manhood 79 2.2.8. Probity 82 2.3. Judge's Appointment 83 2.4. Judicial Vacancy 85 2.4.1. Resignation 86 2.4.2. Transgression 86 2.4.3. Apostasy 87 2.4.4. Other Reasons 87 2.5. Independence of Judges 88 Concluding Remarks 90 x Chapter Three The Organisation of the Court 3.1. The Judges' Qualifications 93 3.2. The System of Elections 105 3.2.1. Nomination of Candidates 106 3.2.2. Election of the Members 112 3.3. Term of Office of Judges 113 3.4. Oath 117 3.5. The Presidency 119 3.6. Judicial Vacancies 124 3.7. Incompatibility of Functions and Disqualification of Members 128 3.8. The Composition of the Court 131 3.9. Seat of the Court 134 3.10. Ad Hoc Judges 137 3.11. Chambers 144 A. The Chamber of Summary Procedure 145 B. Special Chambers 146 C. Ad Hoc Chambers 148 3.12. Registrar and Registry 158 3.13. Diplomatic Privileges and Immunities 159 Concluding Remarks 162 Chapter Four Application of the Islamic Shariah by the Arab Court of Justice 4.1. Sources of International Law in General 164 4.2. The Concept of the Islamic Shariah in the Statute of the ACJ 169 4.2.1. Definition of Islamic Shariah 170 4.2.2. Islamic International Law 173 4.3. Sources and Methods of Interpretation of Islamic Shariah 181 4.3.1. The Primary Sources 183 4.3.1.1. The Quran 183 4.3.1.2. The Sunnah 188 4.3.2. The Secondary Sources 194 4.3.2.1. Ijtihad (Reasoning) 194 4.3.2.2. Ijma (Consensus) 197 xi 4.3.3. Methods of Interpretation 200 2.3.3.1. Qiyas (Analogy) 201 4.3.3.2. Istihsan (Equity in Islamic Shariah) 203 4.3.3.3. Istislah (Consideration of Public Interest) 204 4.3.3.4. Istishab (Presumption of Continuity) 204 4.3.4. Specific Sources in Islamic International Law 205 4.3.4.1. International Treaties 206 4.3.4.2. The Prophet's Instructions 209 4.3.4.3. The Siyar book 210 4.3. The ACJ and the Application of the Islamic Shariah 210 Concluding Remarks 222 Chapter Five Jurisdiction of the Court 5.1.
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