Islamic Law in the Jurisprudence of the International Court of Justice: An Analysis

Article excerpt

I. INTRODUCTION

Professor Lori Damrosch has long been interested in the role that Islamic law1 has played in shaping the evolution of international law.2 This Article is an attempt to answer a question she once asked me. Knowing that I was interested in the way diat contemporary legal professionals, particularly judges, interpret Islamic law, Professor Damrosch suggested roughly ten years ago that I examine opinions from the UN's International Court of Justice ("ICJ" or "Court") and ask how judges on the ICJ used Islamic law to help resolve disputes or advance the work of the Court. At the time, I thought her proposal quixotic. In my limited reading of ICJ cases, I had never noticed Islamic law being mentioned except in a tangential way.3 My impression that the ICJ did not cite Islamic law was, I knew, shared by others.4 Professor Damrosch, however, pointed to several separate (concurring or dissenting) opinions going back to 1969 in which ICJ judges referred to Islamic law. These suggested, she thought, that ICJ judges were aware of Islamic law and the role that it might play in creating or legitimizing the international legal order. There had never been a systematic study of Islamic legal references in Court opinions-who was citing Islamic law and why. Someone, she thought, should carry out such a study. And that someone, she suggested, was me. She asked me to get back to her when I had an answer.

Now, almost ten years later, I am finally getting back to her. I have no excuse for the delay except the usual. Other projects beckoned. But after finishing the latest of those projects, it struck me that the time might be ripe to look at Professor Damrosch's questions. The world has still seen no systematic study of the sort that Professor Damrosch proposed.5 Furthermore, my recent research suggests these questions may be relevant to issues being debated in both the academy and policy circles. Constitutional reforms around the Muslim world have led to the appearance of constitutions that require states to conform both to Islamic law and international legal norms (and often specifically international human rights norms).6 Academic observers have debated whether these commands are coherent and whether a modern court could actually develop a body of law that respects both of these norms.7 If judges on the ICJ have identified a productive role for Islamic law in their own articulation of international law, then we should consider what they have to say.

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 estabkshing the legitimacy of the results that it has reached. It is structured as fokows. 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 enabkng statute permits the Court, at least in theory, to look at Islamic legal norms. As I wik show, the Court's Statute akows 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 appked 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 opinions. Part V detaks 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 wik make clear that different judges use the tradition for different reasons. …