Hamzah, Dawood Adesola (2015) Impact of international law on the application of Islamic law in Saudi Arabia. PhD Thesis. SOAS, University of London http://eprints.soas.ac.uk/18432 Copyright © and Moral Rights for this thesis are retained by the author and/or other copyright owners. 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 copyright holder/s. The content must not be changed in any way or sold commercially in any format or medium without the formal permission of the copyright holders. When referring to this thesis, full bibliographic details including the author, title, awarding institution and date of the thesis must be given e.g. AUTHOR (year of submission) "Full thesis title", name of the School or Department, PhD Thesis, pagination. Impact of International Law on the Application of Islamic Law in Saudi Arabia Dawood Adesola Hamzah Thesis Submitted for the Degree of PhD 2015 Department of Law School of Oriental and African Studies University of London Declaration for PhD Thesis I have read and understood regulation 17.9 of the Regulation for student of the SOAS, University of London concerning plagiarism. I undertake that all the material presented for examination is my own work and has not been written for me, in whole or in part, by any other person. I also undertake that any quotation or paraphrase from the published or unpublished work of another person has been duly acknowledged in the work which I present for examination. Signed:___________________________ Date___________________ ii Abstract Individual sovereign states are the basic building blocks of the international legal system. Traditionally, states were considered to be absolutely sovereign in the sense that they were legislatively independent and entered into treaty relations that promoted their interests as defined by themselves. This was the basic traditional vision of international law as a non- interventionist system in the domestic law-making of individual nation-states. But the legal regime of contemporary international law has grown beyond this vision, whereby the absolute sovereignty of modern nation-states has steadily diminished and the concept of sovereignty called into question, especially in relation to domestic law-making by states. Today, international law impacts on domestic laws either directly or indirectly, and states must, while embarking on domestic law-making, be conscious of probable violations of international rules on issues that are basically domestic and under their sovereign control. This impact of international law in the domestic legal sphere of states raises significant questions on the application of Islamic law as domestic law of a modern Muslim-majority state like Saudi Arabia. Traditionally, the Shari‟ah as the general value system that stands as a source of Islamic law is considered as divine in nature and thereby immutable. It is therefore often claimed that Islamic law cannot accommodate the encroachment of contemporary international law in the domestic law making of modern Muslim-majority states. Nevertheless, many modern Muslim-majority states remain part of the international legal order, while they continue to adopt domestic laws that are underpinned by Islamic law. How have they been able to sustain their domestic law-making based on Islamic law within the ambit of the encroachment of modern international law as identified above? In that context, this study examines the impact of international law on the domestic legislation of Saudi Arabia, which is a modern Muslim-majority state that has clearly declared Islamic Shari‟ah as the basis of its domestic laws and governance.1 This study is important considering the constraints but also the benefits associated with the interaction between international law and the domestic laws of modern Muslim-majority states generally and how that relationship could be accurately interpreted. 1 See Art. 1, Saudi Basic Law of Governance (1992) iii The main argument of the research is that modern international law, which is conceivably underpinned by western and specifically Eurocentric values, has, despite the traditional concept of sovereignty, steadily encroached upon the domestic legislation of modern nation-states generally, and in particular, Saudi Arabia, a Muslim majority state that strictly adheres to Islamic law as the basis of its domestic legislation. It is argued that while international pressure may be a factor, the inherent benefits of modern international law also play a significant role in influencing Saudi Arabia to maintain necessary equilibrium between its classical and conservative interpretation of Islamic law and relevant rules of modern international law. iv Contents Declaration…………………………………………………………………………………....ii Abstract…………………………………………………………………………………….iii-iv Table of Contents…………………………………………………………….....…………………...v-ix Acknowledgements…………………………………………………………………………….x List of Abbreviations............................................................................................................xi-xii Glossary……………………………………………………...…………………..........xiii-xviii Table of Cases……………………………………… ………...……………….………xviii-xix Tables of Treaties and Declarations……………………….……………………….……xix-xx Tables of Status and Fatwas……………………………………… ………………….xx-xxiii CHAPTER 1: Introduction 1:1 Introductory Remarks……………………………………………………………………...1 1:2 Backgrounds to the Study…………………………………………………………..……..4 1:3 Statement of Research Problem and Objectives…………………………………………..5 1:4 Theoretical Perspectives…………………………………………………………………...9 1:5 Methodology…………………………………………………………..………………....11 1:6 Selection of Saudi Arabia as Country of Focus………………………………………….14 1:7 Literature Review………………………………………………………………………...14 1:8 Structure of Thesis……………………………………………………………………….22 CHAPTER 2: Interaction of International Law and Domestic Law: Between Theory and Practice 2:1 Introductory Remarks…………………………………………………………………….25 2:2 Concept of State Sovereignty: Historical and Evolutional Perspectives…………………………………………………………………………….…...27 2:2:1 Classical Perception of Sovereignty………………………………………….………...28 2:2:2 Contemporary Perception of Sovereignty…………………...………………………....30 2:2:3 Islamic Perspective of Sovereignty…………………………...………………………..32 2:2:4 Sovereignty under International Law…………………………………...……………...33 2:3 A Historical Appraisal of International Law………………………………….………….35 2:3:1 Nature of International Law …………………………….………………….………….38 2:3:2 International Law and Question of Legitimacy……….…………………………….…41 2:3:4 Relationship Between International and Domestic Laws………………………...……42 2:3:5 Enforcement of International Law…………………….…………………………….....46 2:4 The Principle of Sovereign Non-Intervention ………………….………………………..47 2:4:1 The UN and The Principle of Non-Intervention……………………….……………....49 2:4:2 Nation-states and International Law…………..……………………………………….55 2:5 Conclusion………………………………………………………………...……….........56 v CHAPTER 3: Islamic Law in Saudi Arabia: Between Conservatism and Moderation 3:1 Introductory Remarks……………………………………………………………...….….57 Part I - The Theoretical Framework and Development of Islamic Law 3:2 Basic Sources of Islamic Law……………………………………………................……58 3:2:1 The Qur‘an as the Principal Source of Islamic Law...………………………………....61 3:2:2 The Sunnah as the Second Source of Islamic Law…………..……………….………..64 3:3 Secondary Sources or Methods of Islamic Law……………………………….………....69 3:4 Development of Islamic Jurisprudence………………………..…………………………70 3:5 Ijtihad in Historical Perspective……………………………………….…………….…...71 3:6 The So-called Closure of the Gate of Ijtihad…………………………………………..73 3:7 The Concept of Maqasid al-Shari‟ah………………………………...…………….....…76 3:8 The Schools of Islamic Jurisprudence…………………………………….………….......78 3:8:1 The Hanbali School of Islamic Jurisprudence…...…………………………...………..79 3:8:2 The Wahhabi Movement – A Rejuvenating Force of the Hanbali School……...........81 Part II – Application of Islamic Law in Saudi Arabia 3:9 Saudi Arabia‘s Legislative and Judicial Development………………………………......83 3:9:1 Saudi Arabia During the Unification Era (1932-1953)……………………...…………84 3:9:2 Saudi Arabia‘s Oil Fortune – a New Beginning in Foreign Policy……………...……..85 3:9:3 King Saud bin Abdulaziz Al Saudi (1953-1964)………………………...…………….86 3:9:4 King Faisal bin Abdulaziz Al Saud (1964-1975)………………………………………86 3:9:5 King Khalid Ibn Abdalaziz Al Saud (1975-1982)………………………….………….88 3:9:6 King Fahd bin Abdulaziz Al Saud (1982-2005)……………………………………….88 3:10 The Saudi Arabian Legislative and Judicial Systems…………………………………..92 3:10:1 The Saudi Judiciary and Freedom of Ijtihad……………………………………….…94 3:11 1975 Reform of Saudi Arabian Judiciary……………………………………………….97 3:12 Reforms of Saudi Arabia Judiciary 2005-2007…………………………………………98 3:13 Reform of Saudi Arabia Judiciary 2011-2013……………………………………….....99 3:13 Conclusion……………………………………………………………………………..102 Chapter 4: Saudi Arabia Between Theory and Practice of International Law 4:1 Introductory Remarks……………………………………………………………..….…103 4:2 Siyar (Islamic International Law): A Variant?………………………………...….…….104 4:2:1 Siyar in the Contemporary Muslim World……………………………….…….……..109 4:3 Saudi Arabia as a Nerve Centre of Islamic Law…..........................................................112 4:4 Saudi Arabia Foreign Policy …………………………………………………….……..115 4:5 Incorporation of International Treaties and Conventions into Saudi Arabia Law……...119 4:6 Islamic Conception