Customs as a Source of Siyar and International Law: A Comparison of the Qualifying Criteria

By Dr Anowar Zahid and Dr Rohimi Shapiee*

Abstract In the present world all States, both Islamic and non-Islamic, practice (traditional) international law, which was originally European Christian law of nations. Muslim States and individuals have expressed, on various occasions, their aspirations to practice Islamic values in their national and international lives. This has motivated the present paper to look into the convergence and divergence of Islamic international law (Siyar) and (traditional) international law with respect to custom, which is a major source of international law. The paper has found that customary practices, under both laws, mature into customary law through almost the same kind of qualifying process with, of course, one major difference that unlike the (traditional) international law the Siyar requires that the customary practices must not conflict with Shariah or the spirit of Shariah. As such it has concluded that the customary international law is Islamically acceptable subject to the satisfaction of this requirement.

1. Introduction: Siyar (plural of Sirat), meaning the behaviours and conducts of Prophet Muhammad (Peace be upon him- PBUH) at the time of war and peace, has been technically used by Islamic jurists for Islamic International Law.1 Classical Islamic
*Senior Lecturer and Associate Professor respectively, Faculty of Law, Universiti Kebangsaan Malaysia (National University of Malaysia).
1

Imam Abu Hanifa (d. 150 H.) is known to have first titled Siyar for his lectures on Muslim Laws of War and Peace. After him, his students like Imam Abu-Yusuf, and Imam Muhammad As-Shaybani (d. 189 H.), and also Imam Ash-Shafiiy used the term in the same sense and for the same purpose. In this way over time Siyar has assumed the technical sense of Islamic International Law. Dr Hamidullah quotes As-Sharkhsiy (d. 483 H.) to evidence such an use of the term as follows: Know that the word siyar is the plural form of Sirat. We have designated this chapter by it since it describes the behaviour of the Muslims in dealing with the Associators (non-Muslims) from among the belligerents as well as those of them who have made a pact (with Muslims) [and live as Resident Aliens or nonMuslim subjects]; in dealing with Apostates who are the worst of the infidels since, they abjure after acknowledgement (of Islam), and in dealing with Rebels whose position is less (reprehensible) than that of the Associators, although they be ignorant and in their contention on false ground. M. Hamidullah, Islamic Worlds: Inter-state Relations (New Delhi: Anmol Publications 2001), at p. 17.

jurists, especially jurists of Abbasyd period, developed this subject basically as the external relations law of Islamic State. Probably because the Islamic State was ever expanding with the spread of Islam like irresistible sea waves and wars were a regular affair of the State as a result of confrontation by non-Muslim territories the classical (Hanafi) jurists looked at the world as divided into Dar al-Islam (land of peace) and Dar al-Harb (land of war). They did not recognize any other State except the Islamic State and vowed to spread Islamic faith in the dr al-harb and establish permanent peace on the earth thereby. To attain that goal they considered Jihad as the basic instrument, which means efforts of all sorts, peaceful or, if needed, violent, to establish Gods sovereignty. To quote Professor Majid Khadduri in this regard: The jihad, in the broad sense of the term, did not necessarily call for violence or fighting, even though a state of war existed between Islamic and non-Islamic territories, since Islam might achieve its ultimate goal (recognition and establishment of Gods sovereignty) by peaceful as well as violent means. This participation might be fulfilled by the heart, the tongue, or the hands, as well as by the sword. The jihad was accordingly a form of religious propaganda carried out by spiritual as well as by material means.2 As such for the classical Islamic jurists unilateralism was the basic approach to the foreign relation and Jihad, meaning war in the strict sense, was the principal instrument to maintain that relation. Accordingly they developed Siyar basically as a law of war (Jihad), which included rules of war, cessation of war, distribution of booties, treatment of prisoners, law of revenue, etc. Of course, Siyar also included the law of peace, such as peace treaty, diplomatic rights and privileges, and safe-conduct (aman) toward nonMuslim visitors or traders for a temporary period of time.3 In this respect foreign relations of the Islamic State were reciprocal, for example, Caliph Harun al-Rashid (786809 AD) had mutual and friendly relations with Charlemagne.4 The reciprocity increasingly assumed the typical feature of the Islamic State foreign relations, which will be more evident from the following paragraphs. By the middle of the Abbasyds period (750-1258 AD) the Islamic State became so vast that it was practically difficult to keep its integrity in face of demands for secession raised from different areas. A theoretical debate ensued among the jurists if there could be more than one State dividing the State. One group held unity of the State
2

M. Khadduri, The Islamic Law of Nations: Shaybanis Siyar (trans.) (Baltimore, Maryland: The Johns Hopkins Press, 1966), p.15. (footnotes omitted)
3

See ibid., p. 6.

H. Moinuddin, The Charter of the Islamic Conference and Legal Framework of Economic Co-operation among its Member States, (Oxford: Clarendon Press, 1987), p. 38.

and other plurality. A middle way solution, chiefly advocated by al- Mawardi, was reached to meet the political realities: the Islamic States would decentralize their powers to different provinces and the rulers of the provinces would have allegiance to the Caliph of the Islamic State.5 This decentralization process was followed by three broad divisions of the dar al-Islam by 16th century: Ottoman Empire, Persian Shia regime and Mughal Empire in Central Asia and India.6 Since 16th century dar al-Islam chose the state of peace as the permanent basis of its relations with the dar al-harb based on the principles of reciprocity and mutual interests.7 In the span of 18th and 19th centuries the Ottoman Empire concluded a number of peace treaty with European States, e.g., the Treaty of Carlowitz, the Russian-Ottoman Treaty for the Partition of Persias Northwest Provinces, 1724; the Treaty of Peace (Belgrade), 1739; the Treaty of Peace, 1774; the Treaty of Peace (Jassy), 1792; the Treaty of peace (Bucharest), 1812.8 As well as some other Muslim States like Persia, Morrocco, Tunis, Muscat, it (Ottoman Empire) granted numerous commercial privileges to European States.9 In 1856 the Ottoman Empire signed the Treaty of Paris to participate in the advantages of the public law and system (concert) of Europe, which, in fact, divorced the Christian and European character of the Concert and Public Law.10 However, with the opening of the 20th century Ottoman Empire split into nation-States.11 Nation-States emerged in other parts of the Muslim world as well. All Muslim States, regardless of their internal approach of ruling (e.g., Shariah as in Arab Peninsula or secular law as in Turkey) accepted the secular approach in their foreign relations.12 As such the general international law, which was originally European and Christian law of nations, became their law for international intercourse. Muslim States participation impacted this law as follows: In respect to the mutual intercourse between the Christian and Mohamedan Powers, the former have been sometimes content to take the law from the Mohammedan, and in others to modify the International Law of Christianity in its relation to them. Instances

Supra note 2, p. 21. M. Khadduri, War and Peace in the Law of Islam, (Baltimore: The Johns Hopkins Press, 1955), p. 270 Khadduri, supra note 2, p. 22. Moinuddin, supra note 4, pp. 40, 227 and n. 160. For the long list of the privilege granting agreements, see Moinuddin, supra note 4, pp. 227 and 228 nn. 163-168. Moinuddin, supra note 4, p. 42. Khadduri, supra note 6, p. 288. Khadduri, supra note 6, p. 292.

10

11

12

of the first may be found in the ransom of prisoners, the rights of ambassadors, 13 However, a question may arise in this connection that despite Muslim contribution how far the modern general international law is Islamic or Siyar-friendly? Mahmassani, a modern Islamic jurist, observes that principles of international law are very similar to Siyar principles.14 Based on this observation Hasan Moinuddin argues that general international law has become Muslim international law as Muslim States have been adhering to them expressly or tacitly or by customary practice in their relations with other States. 15 He holds this view by way of interpretation of the modern definition of Muslim international law (Siyar) given by Muhammad Hamidullah, which reads thus: that part of the law and custom of the land (a Muslim State) and treaty obligations which Muslim de facto or de jure state observes in its dealings with other de facto or de jure states (Muslim or non-Muslim)16 In this definition Hamidullah has included three principal sources of Siyar, namely law, custom and treaty while he has enumerated some additional sources at another place.17 By law he meant Fiqh, i.e. Islamic law emanating from the Quran, Sunnah (the practices of the Prophet) and developed, on the basis of the Quran and Sunnah, by Ijma (consensus) of the Muslim Ummah (preferably all schools or at least one school), and Qiyas (analogical deductions) by Muslim Jurists.18 Being a part of Fiqh, Siyar is an extension of State law (Divine law). Second, custom and usage prevalent in or outside the Muslim State may be adopted as a part of Siyar provided, as certain requirements are met.19 The third source, treaties concluded with Muslim or non-Muslim States are sometimes wholly and deliberately law-making on other occasions they refer incidentally to legislation in an international sense.20 Thus, in substance, Hamidullah seems to mean that Muslim States have their own law to operate their international relations, which is a part of Shariah. On the other hand, according to
13

H. Wheaton, History of the Modern Law of Nations (New York, 1845), p. 555 quoted in Khadduri, supra note 6, p. 284.
14

Cited in Moinuddin, supra note 4, p. 46. Moinuddin, supra note 4, pp. 46-53. Hamidullah, supra note 1, p. 12. Hamidullah, supra note, p. 20.

15

16

17

18

For a detailed discussion on the forces sources of Fiqh, see Anwar Ahmad Qadri, Islamic Jurisprudence in the Modern World, second edn. (Lahore: Sh. Muhammad Ashraf, 1973, pp. 174-222.
19

Hamidullah, supra note 1, p. 33. Hamidullah, however, has not mentioned the necessary qualifications that make customs laws.
20

Supra note 1, p. 32.

Moinuddin, general international law has become law for Muslims merely because they practice it in the present world. It is true that general international law embodies certain principles of Siyar (e.g., the principle of pacta sunt servanda), but it does not necessarily substantiate the claim that the whole stock of the former has become Muslim international law for Muslim States only because they (Muslim States) practice it. To make such a claim it is essential to compare the principles and rules of both on a case-bycase basis. The present study, prompted with this objective, will examine, by comparison, the jurisprudential requirements of custom as a source of both Siyar and international law. The following paragraph will provide further rationale for this endeavour. Article 38 of the Statute of the International Court of Justice (ICJ) sets forth the following sources of international law from which the ICJ shall derive rules to settle disputes submitted to it: international treaties, international customs, general principles of law of civilized nations, and judicial decisions and teachings of most highly qualified publicists of various nations.21 Customs are the second source in the chronological order; however, this does not give treaties any priority as a legal status over custom.22 This provides very faithfully the logical stages in the judges reasoning.23 Treaties constitute jus speciale, which may derogate from jus generale (customary law) in a given circumstance.24 In deciding a case the ICJ looks into whether such a situation exists. But as far as their legal status is concerned, treaties and customs are of same rank as they are, instead of being superimposed by any superior authority, adopted by States by express will (treaties) or practice (custom) to regulate their inter-State relations.25 Rather customs form the very background26 upon which treaties are set- the regulations of their

21

These are usually called the sources of international law, which is a subject of serious criticism. Critics contend that since Article 38 of the ICJ Statute requires the Court (ICJ) to apply what are enumerated in subparagraph 1(ac) in settling disputes, they may be called rules of international law as the Court applies r ules in giving decisions, and not sources. K. Wolfke, Custom in Present International Law, 2nd edn. (Netherlands: Martinus Nijhoff, 1993), p. xvi.
22

See Working paper by Manley O. Hudson on Article 24 of the Statute of the International Law Commission, Yearbook of International Law Commission, vol. II, p. 25.
23

L. Condorelli, Custom in M. Bedjaoui, International Law: Achievements and Prospects (Paris and Dordrecht: UNESCO and Martinus Nijhoff, 1991), 179-211, p. 184.
24

Ibid. Ibid., p. 185.

25

26

The Chamber of the International Court of Justice used this word while underlining, in the following words, the relevance of customary international law in the interpretation of conventional laws- (C)onventions must be seen against the background of customary i nternational law and interpreted in its light. The delimitation of the Maritime Boundary in the Gulf of Marine Area case (Canada/US), Judgment of 12 Oct 1984 (Reports 1984).

formation, effects, and termination, etc.27 The validity of treaties depends on customary norms in that the former, to be legally enforced, must not breach any peremptory norm (jus cogens) of international law.28 Thus the general rules that govern international treaties are of customary nature, e.g., pacta sunt servanda.29 Moreover, treaties sometimes even reproduce rules of customary origin, e.g., the Brussels Declaration of 1874 embodied customs of war on land, which later formed a basis for the codification of the law of war in the Hague Conventions of 1907. Thus custom is an important sourceeven the basis of international law30- which the States in general, including Muslim States, practice in their international relations. But all practices do not have customary law value; they have to fulfill certain criteria. In this paper those criteria will be compared with their Islamic counterparts to determine their similarity and divergence, if any. In case they are similar, general international customary practices that fulfills those criteria may be accepted as Siyar law. If they are not, the paper would suggest for ways and means of making them Siyar friendly. This attempt is made to help fulfill Muslims aspiration for practicing Islamic values in their international life: Muslims, collectively and individually, have usually re-asserted Islamic principles in order to preserve Islamic values and way of life.31 Section 2 of this paper will provide a brief account of custom as a source of law both from Islamic and general international law perspectives. Section 3 will make a comparison between the custom criteria of these two laws. Then a conclusion will follow.

2. An Overview of Custom as a Source of Siyar and International Law 2.1 Custom (Urf) in Islamic Law including Siyar Siyar is a non-separable branch of Islamic Shariah. Any discussion about it unavoidably, at least, touches Shariah. In this sub-section meaning, legal status and qualifying requirements of custom under Shariah will be discussed, which will equally be applicable to Siyar.

27

Condorelli, supra note 23, p. 180.

28

Vienna Convention of the Law of Treaties 1969, art. 53. In this context, a peremptory norm of general international law refers to a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. above. 29 Condorelli, supra note 23, p. 185.
30

N.M. Chambers, International Law, (London: Sweet & Maxwell, 1966), p. 2. .Supra note 4, p. 46.

31

Meaning, Legal Status and Criteria of Custom The Islamic Arabic term for custom is urf (originating from arafah), which literally means something that is known.32 In Islamic law in general this term is used to mean general practices of people, which are not in conflict with Shariah.33 It took a long while for it to have a legal source status in Islam. The pre-classical period34 (until 9th century) did not admit custom (urf) as a formal source of law on the argument35 that the Quran has laid down a detailed account of everything.36 However, in practice, custom
32

Another term for custom in Arabic is adah. A majority of ulama (Islamic scholars), especially in the pre-classical period (until 9th century), have interchangeably used these two terms for custom. Some scholars have, however, differentiated the former from the latter. For example, by urf and adah Johansen meant social practice and normative custom respectively. Baber Johansen, Casuistry: between legal concept and social praxis, Islamic law and Society (1995) 2(2) 135, p. 152. For Ghazali urf means practices of Muslims and adah Gods custom in running the world Hallaq, Law and Legal Theory, III 343 cited in G. Libson, On the development of custom as a source of law in Islamic law, (1997) 4.2 Islamic Law and Society, p. 133 n. 4 Kamali defines the former as recurring practices that are acceptable to people of sound nature and the latter as (personal) habits of individuals M.H.Kamali, Principles of Islamic Jurisprudence, 3rd edn.,(Cambridge, UK: Islamic Texts Society, 2003), p. 369.
33

In this respect bida (innovation in religion), which is prohibited in Islam, should be distinguished from urf/adah. Shatibi, a pre-modern Islamic scholar, who indiscriminately used ada and urf for custom defined bida as an invented way in religion that resembles the way of Sharia, which commonly occurs in the way of rituals but can also occur in the general way of dealings. (I)f a certain practice, h abit, or custom is approved by Sharia either directly through the text or indirectly by being in line with its spirit, it is to be approv ed as a good practice (adah), otherwise, it should be discarded as an unfounded innovation (bida). cited in A. Shabana, Urf and adah within the framework of Al-Shatibis legal methodology, (2006/2007) 6 UCLA JINEL, p. 89. On the Quranic meaning of the term, urf (custom), see the discussion accompanied by footnotes 99-108, infra.
34

Chafik Chehata made the Islamic periodization as follows: pre-classical (until 9th century), classical (10th to 12th century), and post-classical & modern periods (from the 12th century on) : Etudes de droit musulman , (Paris, 1971), vol. 1, 18 ff. which Libson adopted in his discourse on custom. See G. Libson, supra, note 15 and pp. 141-142.
35

M. Khadduri, Nature and sources of Islamic law in I. Edge (ed), Islamic Law and Legal Theory, (Aldershot, Singapore and Sydney: 1996), 87-107, pg. 87.
36

Quran 12:111. To understand this argument first of all it is essential to look into the real meaning of this verse. The Quran is the book of guidance (Quran 2:2), which means this will lead the mankind to the recognition of their Creator and encourage them to follow His commandments. Accordingly it has laid down in detail everything relating to guidance. A.A. Maududi, Tahfim Al-Quran, Surah Yusuf note 80, at http://englishtafsir.com/Quran/4/index.html#sdfootnote90sym (visited on 30 October 2008). Guidance may be understood broadly to include three components: Faith, Commandments and Consequences. First, the Quran has stated the wonders (ayat) of Gods creation and stories of the prophets (peace be upon them) preceding the Prophet Muhammad (peace be upon him- PBUH) with the intent that people will realize the Might and Powers of God and take lessons from them and turn to their Lord in faith. Second, once they turn to God in faith, they are instructed to obey Him (meaning the commandments laid down in the Quran), to obey the Prophet (his way and instructions called Sunnah) and also to obey those in authority including scholars of Islam (meaning their consensus and reasoned opinions). (Quran 4:59). And last, the Quran has informed the people of the consequences in afterlife (Akhirah) of both believing and disbelieving, and obeying and disobeying the commands and instructions of the

has gradually entered into the corpus of Islamic law in the guise of Sunnah, ijma, material source and deemed written stipulation, as explained below. As indicated above, Sunnah refers to the Prophets (PBUH) sayings, actions and approvals of sayings or actions of others. From the pre-Islamic time there were many practices in force in society, which the Prophet did not disapprove or reprehend while he completely overturned the bad practices or partially amended and tuned them up to Shariah. As well, pre-Islamic good practices were incorporated into the domain of express Sunnah (sayings and doings of the Prophet). Thus good practices confirmed by the Prophet expressly or impliedly have received the status of Sunnah traditional meaning of which is custom.37 For example, the following rules have their roots in pre-Islamic customs: diyah (blood money payable by the relatives of a killer to the successors of the killed); salam transactions (advance payment for future goods); rahn (mortgage); kafaah (equality requirement in marriage); and asabah (inheritance attaching to the male line of inheritors).38 Custom was also treated as the ijma (consensus) of the Ummah.39 For example, Imam Malik identified the post-Islamic customary practices of the people of Madinah with ijma.40 He introduced the principle of istislah (choosing the best of public interests), which he used as a basis of his legal opinion aimed at serving the common good and interest of the public.41 This procedure was derived from the consent of the community and may be regarded as a form
Quran. As far as their legal affairs are concerned, as mentioned in the second scheme, the followers of Islam are required to follow the Quran, the Sunnah of the Prophet and the consensus (ijma) and reasoned opinions (qiyas) of the scholars. Strictly speaking, these four are the formal sources of Islam, which do not include custom. In this sense the pre-classical argument that custom is not a formal source of Islam is not groundless. At the same time according it a formal status, as has been done by the post-classical jurists, is also right in view of the Quranic meaning of urf (custom), described in the text accompanied by notes 99-108, infra, and its consistent use over time in the Islamic law making.
37

Also see Libson, supra note 32, p. 139 n. 21. In pre-Islamic time Arabian customary rules were known as sunnah. Prophet Muhammad (Peace be upon him) reformed those rules and also added new rules to them by his words, actions and approval, which altogether are called Sunnah in Islamic terminology. See M. Khadduri, The historical background of the Risala in Al-Shafi-is Al-Risala, (transl. M. Khadduri), 2nd ed (Cambridge, UK: The Islamic Text society, 1987), p. 4.
38

See Kamali, supra note 32, p. 372.

39

Though custom and ijma are loosely equated, in reality they are not the same. See for their distinction, Kamali, supra note 32, p. 375-376.
40

Kamali, supra note 32, p. 372. M. Khadduri, supra note 6, p. 31. For a comparative and critical study of the interpretations of and views on bases of ijma, see George Hourani, The basis of authority of consensus in Sunnite Islam in I. Edge (ed.), Islamic law and Legal Theory, (Aldershot; singapore and Sydney: Dartmouth, 1996), 155202.
41

Shatibi, Al-Muwafaqat fi Usul ash-Sharia cited in J. Makdisi, Legal logic and equity in Islamic law, (1985) 33 AJCL 63, p. 80.

of consensus.42 Imam Shafii and Imam Hanbali, who were very much reluctant to accept custom as a source, also felt its importance in their juristic works. The former is known to have changed his legal opinions after moving to Egypt as the social environment was different.43 Imam Hanbal underlined the requirement for a Mufti (Islamic jurist) to know people, which may include peoples habits and customs.44 Late pre-classical and classical periods recognized custom (urf) as a material source of Islamic law while applying the principles of istihsan (judicial preference) and darura (necessity). The former principle allows (a) preference for a recognized source of law over qiyas (juristic analogical deductions), or (b) preference for a strong qiyas over a weak one.45 To accommodate both definitions, Makdisi defines istihsan as the reasoned distinction of authority.46 Accordingly an established and harmless custom (urf) would take precedence over a harsh qiyas.47 For example, the sale of a non-existent object was not allowable by qiyas, but there was a long standing practice of such sale among people, which Imam Shaibani (d. 189/804) took as a basis of his verdict.48 Al-Sarakhsi wrote citing Shaibani: Istihsan is the renunciation of analogy and the adoption of what is more fitting for people.49 Thus the whole purpose of istihsan is to replace rigidity in law with ease. In this regard Allah says, God wills that you shall have ease, and does not will you to suffer hardship.50 The Prophet (PBUH) is reported to have said, The best of your religion is that which brings ease to the people.51 The principle of darurah permits, in a situation of
42

Khadduri, supra note 6, p. 31. Shabana, supra note 33, p. 94-95. Ibid.

43

44

45

J.Makdisi, A reality check on istihsan as a method of Islamic legal reasoning, (2002) 2 UCLA J.I.N.E.L. 99, p. 99. Imam Bukhari was, however, against istihsan by qiyas. He said that istihsan by tradition, consensus or necessity was approved, while stihsan by qiyas was not. J. Makdisi, Legal logic and equity in Islamic law, (1985) 33 AJCL 63, note 62, in I. Edge, Islamic Law and Legal Theory, (Aldershot, Singapore and Sydney: Dartmouth, 1996), 229258.
46

Makdisi, A reality check on istihsan as a method of Islamic legal reasoning, ibid. Qadri, supra note 18, p. 224.

47

48

See ibid. For more examples of application of custom over qiyas by Al-Kasni, see J. Makdisi, A reality check on istihsan as a method of legal reasoning, supra note 45, pp. 117-126.
49

Al-Sarakhsi, Mabsut, vol. 10, 145 cited in Libson, supra note 32, p. 151. (footnote omitted)

50

Quran, 2:185. Other Quranic evidences for istihsan are, for example, Give glad tidings to (those of) my servants who listen (closely) to all that is said, and follow the best (meaning) of it : Quran, 39:17-18; Hold fast by the best in the precepts :Quran, 7:145.
51

Ibn Hanbal, Musnad, V, 22 cited in Kamali, supra note 32, pp. 325-326.

terrible hardship, modification of a legal injunction in order to avoid immediate harm.52 The Quran enunciates this principle when, for example, it permits eating forbidden foods in a hard situation.53 The relevant hadith (Prophets tradition) is probably the following: No harm to be caused and no harm to be retaliated.54 These tools of fiqh came into operation to meet the demands of the time with the expansion of the Islamic territory after the departure of the Prophet when disputes and legal questions relating to purely local matters were bound to be settled on the basis of the customs and precedent of each locality (which) must have supplied the Muslim jurist with raw material on the strength of which he issued opinion whenever an authoritative text failed to provide an answer.55 Apart from its use as a dependent source in the process of qiyas, since the classical period custom has been used to fill a legal vacuum or as a legal norm.56 This is evidenced from the following oft-quoted maxims in different schools: customs take priority, customs are to be treated like stipulations, identification with urf is equal to identification with text.57 These maxims are invoked with regard to determining contractual obligations of parties involved in variety of transactions including hire, loans, suretyship, service, damages and the like.58 They apply both where the rights and duties of the parties have been stipulated and not stipulated.59 Through their frequent and consistent use as Sunnah, ijma and material source for juristic reasoning for a long period of time running until the late classical period customs had ripened into a legal source of Islamic law alongside with other recognized sources. Different schools, especially Hanafis, resorted to customs in the event of inconsistency between both inter and intra school rulings. To quote Hanafi jurist, Ibn Nujaym(d.970/1563): Know that the consideration of custom and usage reappears frequently in law in many cases, so much so that they [viz., the
52

M.I. Dien, , Islamic Law: from Historical Foundations to Contemporary Practice, (Edinburgh: Edinburgh University Press, 2004), p. 82.
53

See Quran, 2:173; 6:119,145; 22:78; 16:115 and 2:280. Muwatta Imam Malik cited in Dien, supra note 52, p. 82. Khadduri, supra note 37, pp. 4-5. Libson, supra note 32, p. 152. Shabana, supra note 33, pp. 94-95. Libson, Supra note 32, p. 153. Libson, supra note 32, p. 154.

54

55

56

57

58

59

jurists] have transformed it into a legal source, and they said in the usul literature, in the chapter of abandonment of literal meaning: the literal meaning is abandoned on the basis of an indicator found in inferential methods of inquiry and in customs.60 Ibn Nujayms observation was later given State law status by setting forth, among others, the following rules/principles in The Mejelle (The Ottoman Civil Law): Custom is of force;61 Under the guidance of custom the true meaning is abandoned62 Custom is only given effect to, when it is continuous or preponderant63, A thing known by common usage like a stipulation which has been made64What is directed by custom is as though directed by law65. From the above discussion it may be concluded that custom, having its roots in the Quran and Sunnah of the Prophet, has occupied a formal position in Shariah, especially in the Hanafi School.66 It does not, however, automatically become a law; it
60

Cited in Libson, supra 32, p. 141. (footnotes omitted) The Mejelle (English translation of Majallah El-Ahkam-i-Adliya), (Kuala Lumpur: Other Press), Article 36. Ibid., Art. 40. Ibid.,Art. 41 Ibid., Art. 43. Ibid.,

61

62

63

64

65

66

As to why customs should be given a legal source status various reasons may be gathered from scholars discourses:

(a) Where a prevalent social practice has been approved by the Quran or Sunnah, it becomes a text (Nass) and
a subsequent custom cannot change it. In this case custom attains the status equal to a principal source of fiqh. Al-Sarakhsi cited in Libson, supra note 32, p. 145. In this respect, for difference with Imam Abu Yusuf, see Libson, supra note 32, p. 143-144.

(b) Again, custom fills (as equity) the gap of law. Thus when in a given matter there is no solution available in
any (explicit written) text, it is settled according to peoples practice. Al-Quduri cited in Libson, supra note 32, p. 145.. In this respect Al-Sharakhsi has to say: Whatever was known [to be sold] by measure [viz., capacity] in the time of the Prophet, may Gods prayer and peace be upon him, [shall be sold] by measure forever, even if people [subsequently] become accustomed to selling it by weight. Whatever was known [to be sold] by weight at that time [= the Prophets time] [shall be sold] by weight for ever. With regard to something of which it is not known how [it used to be sold], one considers the custom of people in every place. Cited in Libson, supra note 32, p. 143.

(c) Al-Shatibi (d. 790/1388), a Maliki jurist, justified the use of custom arguing on his great philosophical
ground, namely the objective of Shariah (Maqasid al-Shariah). According to him, the objective of

has to fulfill some conditions. According to Sobhi Mahmassani the following are those conditions:67 1. Acceptability: A custom must be acceptable to people of sound nature, meaning it must be reasonable, and compatible with good sense and public sentiment. 2. Frequency: A custom must be a frequent and recurrent practice in common. In other words, the custom to be effective must be consistent and dominant. This means that with regard to a particular matter, for example a real estate sale, the usual practices of most of the people involved in this business will be given legal weight. If, for example, in real estate business more than one currency is accepted as a means of payment, the currency that is more usually used by most of the people in that business shall be accepted in absence of any written stipulation in this regard.68 3. Prevalence: It is important to see when the custom has come in prevalence. To receive effect in Shariah it must be in force at the time of or before transactions. Customs developing afterwards are of no avail in relation to the transactions. Thus, for example, a customary rule will not be relevant to the interpretation of a commercial deed if that custom was not in practice at the time of its conclusion, rather developed later and became relevant at the time of interpretation because it is
Shariah is to remove unacceptable hardship of people. To attain this obj ective concession/moderation in religious and legal obligations may be granted. But how to measure an unacceptable degree of hardship? By taking the peoples general habits (customs) into consideration because the habits are seen as important aspects of human nature that Lawgiver realizes, recognizes, and regulates. Shabana, supra note 33, p. 90. For a detailed idea about this theory, see A. al-Raysuni, Imam Al-Shatibis Theory of the Higher Objectives and Intents of Islamic Law, (The International Institute of Islamic Thought and Islamic Book Trust, 2006), p.. 106-289.

(d) Some jurists have attempted to grant customs an independent status basing on the Prophets

commendation of ijma which may be called custom in a general sense. The Prophet said, Everythin g that Muslims regard as good is good in Gods eyes, and My Community will not agree on an error. See Libson, supra note 32, p. 146. An example of istisna (sale of non-existent object) is in point. The Prophet (PBUH) has forbidden sale of an object that is not in the possession of the seller at the time of sale. Based on this Tradition it is opined by qiyas that sale of a non-existent object is not allowed. AlSarakhsi turned down this opinion and held such sales valid on the basis of the customary practices of the people in similar matters. He cited the cases of using public bath on payment without prior knowledge of how much water the user will use and how long he will be there. The unknown object of the sale in question is similar to the object of public bath (water) in this case. Cited by Libson, supra note 32, p. 146. With regard to murabaha transaction Al-Kasani (d. 587/1191), a Hanafi jurist maintained that (t)he custom of the Muslims and their usages constitute an absolute proof. Cited in Libson, supra note 32, p. 149.

67

Mahmassani, Falsafat al-Tashri fi al-Islam: the Philosophy of Jurisprudence in Islam (trns. F.J. Ziadeh), (Open Press, Kuala Lumpur, 2000), pp. 133-134. Also see A.F. Abu Sanah, Urf wa al-Adah fi Ray al-Fuqaha (Matbah, 1992), pp. 73-88.
68

See Kamali, supra note 32 p. 373.

generally assumed that documents which are not self-evident and require clarification can only convey concepts that were common at the time they were written..69 4. Subordination to written stipulation: When there is a contract and particular conditions of it are not clearly stated, customary practices will fill the gaps of unwritten conditions. If, however, there are written stipulations, but customs contradict them, the former will take precedence over the latter. For example, it is local a custom to pay half of the dower money at the time of marriage and the rest at some subsequent time. The contract of marriage contains in writing that the full amount would be paid at the time of conclusion of marriage. This written condition shall replace the custom. 5. Compatibility with Shariah: This is the prime condition for the acceptability of custom as a source of law. This may be termed as the religious condition and the rest mentioned above as the secular conditions. Customs that satisfy the secular requirements shall not be accepted in the domain of Islamic law if they are incompatible with the established legal sources (which include the Quran, Sunnah, and ijma)70 or the spirit of Shariah. For the purpose of Siyar, in light of the above, it may be restated that a customary practice will be considered as a customary rule if (a) it is reasonable and sensible to the Islamic State; (b) it is frequently and dominantly practiced in interstate relations in general; (c) it is in force at or before the time of an international transaction in relation to which its relevance is in question; (d) it does not contradict an interstate agreement or treaty provisions; and (e) finally and most importantly, after fulfilling the above conditions, it must not be in conflict with Shariah.

2.2 Custom in General International Law Meaning, Legal Status and Criteria

69

Kamali, supra note 32, p. 373.

70

Customs contradicting qiyas still may prevail on the ground of istihsan or darurah or maqasid al-Shariah. See discussion accompanied by notes 47-55, and note 66, supra.

For the conception of custom as a source of international law the the natural starting point should be Article 38(1)(b) because this Article has included custom as a source of law for the first time at the international plain.71 It expresses international custom as evidence of a general practice accepted as law. The wording of this definition has been seriously attacked by critics. Makowski said, it is wrongly drafted, because it is not custom which constitutes the evidence of certain practice, but universal practice which constitutes evidence of custom.72 On the other hand, Haggnmacher observed that the final formula expresses neither that custom is evidence of practice, nor that practice is evidence of custom, but that the expression means that custom is simply a general practice accepted as law.73 Despite this debate there is no denial of the fact that custom is a formal source of international law.74 What is custom then? In fact there is no agreement upon the definition of custom. It has come to be used as a catch-all for anything that is not either conventional law or general principles.75 The responsibility for such confusion lies on the drafters of the ICJ Statute who themselves were not sure about the exact meaning of the term.76 In essence, however, it should refer to a common and constant practice of States, which may be manifested in the actual words, actions and omissions of States.77 Repeated verbal words in the form, for example, of resolutions, treaties or unilateral declarations, etc. may be considered as custom-creating practice when they are followed by actions.78 Without actual deeds (r)epeated pronouncements at best developed the custom or usage of making such pronouncement.79 Of course, verbal declarations coupled with certainty of materialization into reality may be considered as custom-making practices. The 1945 Proclamation of the US President (Truman) on the continental shelf is an example in this
71

Wolfke, supra note 21, p. 2. Cited in Wolfke, supra note 21, p. 6. Cited in Wolfke, supra note 21, p. 8.

72

73

74

G. Fitzmaurice, Some problems regarding the formal sources of international law, Symbale verzijl, La Haye 1958, pg. 173, cited in Wolfke, supra note 21, p. xvi n. 12.
75

Jennings, General course on principles of international law, (1976-II) 121 RCADI p. 135 cited in Wolkfe, supra note 21., p. xvi note 9.
76

Wolfke, supra note 21., p. 8. A.G. Hamid, Public International Law: A Practical Approach, (Selangor: Prentice Hall, 2007), p. 30. Wolfke, supra note 21, p., 42.

77

78

79

As par Judge Radhabinod Pal in International Military Tribunal for the Far East (Calcutta: 1953), p. 56 cited in Wolfke, supra note 21, p. 42 n. 190.

respect.80 State actions or omissions are the typical forms of custom-creating practice, for example, using innocent passage by vessels of various States and tolerating such action by the coastal State without registering any protest to it. In this context the sources that contribute to the development of international customs should not be out of place. In 1950 the International Law Commission prepared a report (known as Hudsons working paper) on the ways and means of making customary international law more readily available as mandated by Article 24 of its Statute.81 The report enumerated a non-exhaustive list of sources of international custom, which are as follows: (i) texts of international instruments, (ii) decisions of international court, (iii) decisions of national courts, (iv) national legislation, (v) diplomatic correspondence, (vi) opinions of national legal advisers, and (vii) practice of international organizations.82 To this list also may be added doctrines of publicists, which Article 38(1)(d) of the ICJ Statute has included as a subsidiary means for the determination of rules of international law. Though the World Court has seldom resorted to this source and authors themselves concede its diminishing import, no one should completely ignore it.83 A close reading of subparagraph 1(b) of Article 38 of the ICJ Statute reveals that international custom has two essential elements: general practice (called material element) and accepted as law (called psychological elements). In the North Sea Continental shelf cases the World Court outlined these two elements as follows while discussing how a treaty provision may create a rule of customary international law: (To apply the subparagraph 1 of the Statute), two conditions must be fulfilled. Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belief, i.e, the existence of a subjective element, is implicit in the very notion of the opinio juris sive necessitatis. The States concerned must therefore feel that they are conforming to what amounts to a legal obligation. The frequency, or even habitua1 character of the acts is not in itself enough. There are many international acts, e.g., in the field of ceremonial and protocol, which are performed almost invariably, but which are
80

Proclamation by the President with Respect to Coastal Fisheries in Certain Areas of the High Seas (White House Press Release), September 28, 1945, 40 AJIL suppl., pp. 46-47.
81

YBILC (1950) vol. II. Ibid., pp. 368-72. Wolfke, supra note 21, p. 76.

82

83

motivated only by considerations of courtesy, convenience or tradition, and not by any sense of legal duty.84 Due to the ambiguous meaning and nature of international custom, as mentioned earlier, the Court has, generally speaking, purposely eschewed the terms, customs or customary law in its judgments or opinions. It has rather attempted to interpret its elements and has thereby developed some requirements for the application of subparagraph 1(b) of Article 38. Those requirements have to be met for any practice to be called international custom. Brownlie85 consolidated those requirements in his book, Principles of International Law, which may be restated as follows: 1. Duration of the practice: The passage of time is a part of the evidence of generality and consistency (two requirements mentioned below), though no particular length of time is required. 2. Uniformity, consistency of the practice: A practice over a passage of time should be consistently carried out by States86 in question; a substantial rift in that consistency may diminish its customary value in international law. 3. Generality of the practice: A practice initiated by one or more States should be accepted by some other States, not necessarily all States, either through an express action or implicitly by registering no protest to the initiation of the practice. The real issue here, however, pertains to how the Court will interpret the lack of protest; it may consider the silence as a tacit agreement or a lack of interest in the matter. 4. Opinio juris et necessitates (opinion as to law and necessity): The above mentioned are the material elements while opinio juris is the psychological or subjective element. This requires that a general practice to receive international customary law value must be recognized by States as an obligation in law. The importance of this element lies in the fact that (t)he sense of legal obligation, as opposed to motives of courtesy, fairness, or morality, is real enough, and the practice of States recognizes a distinction between obligation and usage.87
84

ICJ Rep 3(1969), para. 77. On a critical and present attitude to the so-called psychological element, see the discussion accompanied by notes 120-140, infra.
85

I. Brownlie, Principles of Public International Law, 4th ed. (Oxford: Clarendon Press, 1990), p. 3-11.

86

State organs and organization of States primarily contribute to the development of customs. Besides captains of private vessels, fishermen and pearldivers , etc. also play a secondary role. See Wolfke, supra note 21, p. 58.
87

Brownlie, supra note 85, p. 7.

3. Comparisons of Custom Criteria in Siyar and International Law As discussed above, custom is a formal source of both Siyar and international law. For both laws custom is a practice of two or more States, which must meet particular requirements in order to receive binding force of law. The following will compare the qualifying requirements of both laws. 3.1 Material elements: Time-length of Practice: It was an old view of some jurists at the international plain that international custom should be continuously practiced for a very long time. For example, as early in 1927 Permanent Court Judge M. Negulesco said in his opinion on Jurisdiction of the European Commission of the Danube between Galatz and Braila that a custom must be in practice from time immemorial. 88 In the same line Judge Hudson proposed in a working paper on Article 24 of the Statute of the International Law Commission that a custom should form through continuation or repetition of practice over a considerable period of time.89 In reference to continental shelf, he said that there had been practice among States since 1942 and people had to wait for another 25 years (for its maturing into law). Majority of his colleagues differed with him. For example, Amado (Brazil) said that a single precedent could be sufficient to create a custom.90 In Brielys opinion custom could arise at a moments notice.91 According to him, the concept of sovereignty in the air, though it had been a matter of opinion until 1914, was instantly settled with the outbreak of world war. Hudsons view was ultimately abandoned as the Commission, by majority votes, did not approve the proposal as a whole.92 Some individual authors also hold that international customary law may arise instantly by the opinio juris of two or more States; opinio juris is the essence of it and length of time is immaterial.93 There are authors who do not approve of this view holding that State practice is the essence of custom. In the words of Condorelli, custom develops through a process of social sedimentation, i.e. one resulting from the accumulation of the patterns of behaviour and convictions of the members of a
88

PCIJ Series B 14 (Dissenting Opinion of judge Negulesco), p. 114-115. Supra note 22, p 26. YBILC 1950, v. I, p. 5. Ibid. Ibid., p 276.

89

90

91

92

93

See B. cheng, United Nations resolutions of outer space: instant international customary law? (1965) 5 IJIL 23-48; B. Cheng, Custom: the future of general state practice in a divided world, in R.St.J. Macdonald and D.M. Johnstons (ed.), The Structure and Process of International Law, (Netherlands: Martinus Nijhoff, 1983), 513-554.

given society, international society.94 In the same way some other authors (like DAmato, Meijers, van Hoof) believe, customary law is built upon repetitions. 95 Such sedimentation or repetition obviously involves time, short or long depending on the nature of the subject. To quote the ICJ in North Sea Continental shelf cases96: the passage of only a short period of time is not necessarily, or of itself, a bar to the formation of a new rule of customary international law an indispensable requirement would be that within the period in question, short though it might be, State practice, including that of States whose interests are specially affected, should have been both extensive and virtually uniform At the same time instant growth of custom may be accepted as an exception to the general requirement.97 Thus the typical position of the law is that custom should be of some age evidencing the fact that during this time it has been repeatedly and consistently practiced by express act or tacit agreement of States against which it is claimed to have become applicable in law.98 On the other hand, Siyar does not expressly require duration as a qualifying criterion of custom, but it is implied, as in the case of international law custom, in its requirement that a custom be frequent and consistent in practice. An interpretation of the Quranic term, urf (literally meaning custom) would provide further support to this proposition. The Quran asks the Prophet: and command with urf99 Interpreters of the Quran have made different meanings of this verse. Sheikh al-Arabi (AH 468-543) consolidated the various interpretations into four: what is well-known maruf (good actions), the testimony of belief in God, what is (socially) well-known about religion, and all the good mahasin which are not rejected by public nas and

94

Condorelli, supra note 23, p. 180. Cited in Wolfke, supra note 21, p. 60 n. 37.

95

96

Continental Shelf cases (federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), judgment of 20 February 1969, International Court of Justice, Reports, 1969.
97

See Wolfke, supra note 21, p. 60. See D.J. Harris, cases and materials on International Law, (London: Sweet & Maxwell, 1983), p. 34. Quran, 7: 199.

98

99

are approved by laws sharai.100 Al-Arabis own view is that the verse refers to that which does not violate the Sunnah and the book.101 A close reading of these interpretations may further reduce them to two basic meanings of the term, urf: belief in one God and Islamic Shariah, and social practices approved by Shariah. Both of these interpretations are acceptable in view of the fact that Islam is the continued chain of monotheistic faith propagated by all prophets of all times.102, which the Quran has termed as millata Ibrahim (the creed of Prophet Ibrahim)103 The basic message of all prophets is the same: believe in one God and follow the prophet (of the time). Accordingly Islam commands the mankind to believe in one God, to follow the Injunctions of God laid down in the Quran and also the practices (Sunnah) of the Prophet Muhammad. It is a conventional faith-based religion (monotheistic religion). As such urf (convention/custom) in the present context primarily means Islamic Shariah brought by Prophet Muhammad. Added to this, the Prophet has been ordained to follow the fundamental principles of monotheistic guidance and rules of actions of the previous prophets.104 Accordingly, he (the Prophet) has accepted some rules of preceding prophets in-to-to or with amendments, which have also become a part of Islamic Shariah.105 For example, seeing the Jews fasting on 10th of Muharram to commemorate the victory of Musa (Peace be upon him) over Ferro the Prophet advised the Ummah to fast either on the 9th and the 10th, or the 10th and the 11th of Muharram.106 He has also ordered his followers to adopt the practices of the Jews and Christians in the event when there was no provision in Muslim law.107 This practice and instruction of the Prophet confirms that rules or practices prevalent in society may be accepted by Muslims as urf unless they conflict with Shariah. Accordingly, the Second Caliph of Islam,
100

Abu Bakr Muhammad b. al-Arabi, Ahkam al-Quran, p. 823-5 cited in Dien, supra note 52, p. 65 n. 46. For almost a similar interpretation, see Abu Sanah, supra note 67, p. 9.
101

Dien, ibid. Quran, 6:84-91; 42-13. Quran, 12:38; 16:123;6:79. Quran, 6:90; 16:123.

102 103

104

105

Muhammad Shafi, (Abridged ) Tafseer Mariful Quran (Bengali trans. Muhiuddin Khan) (Madina: 1413 H), p. 396.
106

A. A. Thanwi, Behesti Jewr (Bengali trans. S. H. Faridpuri) (Dhaka: Emdadiya Library, 1990), p. 282. Hamidullaah, supra note 1, pp. 34-35.

107

Omar bin Khattab (May Allaah have mercy on him) adopted in-to-to the Persian revenue laws after its inclusion into the Islamic Caliphate.108. To recapitulate, the Quranic term, urf, has twofold meanings: Islamic Shariah and, general social customs (be practices of the people of Book or general practices of men), which are compatible with Shariah. Islam is a conventional monotheistic faith-based religion running from Prophet Adam, the Father of Mankind. Second, practices of the people of previous Books are obviously old by time. Other social practices grow over time as well. So, it may be argued that the Quranic term, urf indicates duration as one of the criteria of custom, which may, however, be short or long, but must not violate the Shariah.

Frequency and Consistency of the Practice: As noticed above, it is a requirement of Siyar for the formation of a customary rule that the State practice must be frequent and dominant. On the other hand, international law requires it to be uniform and consistent. However, (c)omplete uniformity is not required, but substantial uniformity is.109 This means that the practice need not be always the same. If it is the practice of States in general for the most of the time, it will fulfill this condition. In other words, international law, like Siyar, calls for dominance of a given custom in the State practice. Thus in the Nicaragua case the World Court did not warrant State practice of non-intervention or not using force to have been perfect in the sense that States should have refrained, with complete consistency, from the use of force or from intervention in each other's interna1 affairs.110 The Court continued as follows: The Court does not consider that, for a rule to be established as customary, the corresponding practice must be in absolutely rigorous conformity with the rule. In order to deduce the existence of customary rules, the Court deems it sufficient that the conduct of States should, in general, be consistent with such rules, and that instances of State conduct inconsistent with a given rule should
108

Hamidullah, supra note 1, p. 34. I. Brownlie, Principles of Public International Law, 6th ed. (Oxford: Clarendon Press, 2003), p. 7.

109

110

Military and Paramilitary Activities in and against Nicaragua (United States vs. Nicaragua) (Merits), (1986) ICJ Rep. 14, para. 186.

generally have been treated as breaches of that rule, not as indications of the recognition of a new rule.111 In the Fisheries case (United Kingdom vs. Norway)112 the Court did not find consistent State practice with respect to ten-mile rule for bays claimed by the UK against Norway. As such it declined to uphold the rule as a general rule of international law. Another reason for the decline was Norways persistent objection to its application. Again, due to considerable uncertainties and contradictions in State practice the World Court denied the existence of any customs of diplomatic asylum between Peru and Columbia.113 It laid the following ruling: The Party which relies on a custom of this kind must prove that this custom is established in such a manner that it has become binding on the other Party. The Colombian Government must prove that the rule invoked by it is in accordance with a constant and uniform usage practised by the States in question, and that this usage is the expression of a right appertaining to the State granting asylum and a duty incumbent on the territorial State.114 Generality of Practice: This requirement emanates from the following words of Article 38(1)(b) of the ICJ Statute: general practice accepted as law. It means a particular practice, to become a custom, must be participated by most of the States, not necessarily all of the States.115 Thus that a fishery zone extends up to 12 miles has been held by the international court as a generally accepted practice in international law.116 The generality of practice is complimentary to the consistency requirement in that most of the States practice the same thing over and over again establishing it

111

Ibid. ICJ Rep (1951). Asylum case (Columbia vs. Peru), ICJ Rep (1950). Ibid., p. 116. See Hamid, supra note 77, p. 31. Fisheries Jurisdiction case (United Kingdom v. Iceland), ICJ Rep.(1974) 3.

112

113

114

115

116

as a dominant practice over any inconsistent practice of any other State(s), if any.117 The general acceptance may be proved by States consent to or acquiescence in the practice: As with all types of customary rules, the process of formation (of general customary rules) is similar, namely, the assertion of a right, on the one hand, and consent to or acquiescence in that assertion, on the other. In the case of a general customary right, that is one which is exercised by the generality of States, the presumption of general consent or acquiescence is more strongly raised by virtue of the fact of general participation in practice than would be the case with regard to an exceptional customary right exercised by a single State or by small group of States.118 As mentioned earlier119, under Islamic law a custom, to be binding, must be of common recurrence. Article 41 of The Mejelle reads, Custom is only given effect to, when it is continuous or preponderant. What is preponderant in this context? Article 42 defines -That is esteemed preponderant which is commonly known and not that which rarely happens. The words, commonly known may give two interconnected meanings. First, the custom should be in peoples practice in general and second, people practice it usually. Thus a custom may become preponderant or commonly known when people in general participate frequently in its practice, which matches the requirements of international law as mentioned earlier. Opinio Juris120: In addition to the material elements, Article 38(1)(b) of the ICJ Statute requires that a practice, to become a custom, must be generally accepted by States as law. In other words, the practice must be generally recognized as a rule of law or legal obligation for States.121 This recognition distinguishes a usage from a custom. In the words of MacGibbon,
117

Ibid. I.C. MacGibbon, Customary international law and acquiescence, (1957) 33 BYIL 115, p. 117. See the overview of custom requirements under Islamic law accompanied by notes 67-70 supra.

118

119

120

The Historical school of Law, in particular Puchta, introduced this requirement in international law. According to them the spirit of nation (Volksgeist) is the basis of law and opinio juris sive nencessitatis requires that practice should be an expression of the legal conscience of the nation. In international law this requirement has been adopted in the meaning that practice be followed by a feeling of doing ones duty or doing what is rig ht. Wolfke, supra note 21, p. 46.
121

North Sea Continental Shelf Cases, ICJ Rep. 1969, p. 43

The fact of general participation in a practice which is recurrent and more or less uniform at least serves to indicate that the practice is not illegal. The practice may have been adopted and participated for the reason that it was convenient and appeared to be in the interests of the States participating in it. At this stage it may be described as a usage. To transform the usage into a general practice accepted as law- to use the words of Article 38(1)(b) of the Statute of the international Court of Justice- that is into an international custom, the practice must be followed on the basis of a claim of right and, in turn, submitted to a matter of obligation. Once the stage is reached at which a State pursues the practice as of right and at the same time submits to its exercise as a right of other States, and the generality of States do likewise, the usage has become an international custom involving both right and an obligation, practised in certain expectation of reciprocity, and grounded, on the one hand, in the common practice of States and manifesting, on the other hand, their common consent, either express or in the form of acquiescence.122 Simply stated, a general practice of States would remain a usage and will not receive legal effect unless it is accepted as an obligation of law. MacGibbon did not emphasize the feeling or belief aspect of the element underscored later by the ICJ in North Sea Continental Shelf cases.123 He did so probably because being of psychological nature such a feeling or belief would be difficult to prove.124 Thats why, despite its lip-service to the concept, it (the ICJ) has been less concerned with the analysis of mental states than with the examination and assessment of the facts proved.125 What it has done is to determine whether or not they (the facts of the cases) disclose an effective exercise by a State of right, coupled with a recognition by another State of corresponding obligation.126 As such over time the opinio juris has eschewed its psychological character (i.e., feeling or conviction of fulfilling a legal duty) and has more and more unequivocally equated with the requirement of acceptance of the practice as law by the States to

122

McGibbon, supra note 118, p. 117-118 (footnote omitted). See the text accompanied by note 84, supra.

123

124

For similar argument, see the opinions of the dissenting Judges, Tanaka and Sorensen, in the North Sea Continental Shelf cases, ICJ Rep. 1969.
125

M. Virally, The sources of international law, in Manual of Public International Law, (ed. M. Sorensen), (London, 1978), pp. 134-135 cited in Wolfke, supra note 21, p. 50.
126

Ibid.

be bound by the customary rule.127 Today in international law the subjective element of custom means concrete action of acceptance instead of the abstract notion of feeling or conviction. Thus Karol Wolfke writes that international customs are created by States qualified practice (i.e., general and consistent practice over some time), which is an expression of law, on the one hand and simply an express or implied acceptance of the practice as law by all interested States on the other.128 How may acceptance of the practice be demonstrated? As McGibbon said above, an express acceptance may be manifested by express consent and an implied acceptance by implied consent (acquiescence).129 An express consent may be said to have been given when a State makes a clear declaration that a given practice/rule is obligatory.130 In addition to declarations, express consent may be given in other some forms of verbal acts like resolutions, treaties, etc. 131 and physical acts,132 such as invoking a conventional rule by a non-party in its international engagement133. The reverse of an express consent is a protest against a practice: a formal communication from one State to another that it objects to an act performed, or contemplated, by the latter.134 It serves the purpose of preservation of rights, or of making it known that the protesting State does

127

Wolfke, supra note 21, p. 170. Wolfke, supra note 21, p. 51. Text accompanied by note 122, supra.

128

129

130

Mark E. Villiger, Customary International Law and Treaties, (Hague, London and Boston: Kluwer Law International Law, 1997), p. 50.
131

That an affirmative vote to a resolution of an international organization or ratification of an international convention forms an opinio juris is confirmed in the World Courts judgment: As regards the United States in particular, the weight of an expression of opinio juris can similarly be attached to its support of the resolution of the Sixth International Conference of American States condemning aggression and ratification of the Montevideo convention on Rights and Duties of States. : Nicaragua case, (US v. Nicaragua) (Merits), (1986) ICJ Rep 14, para. 189.
132

Wolfke, supra note 21, p. 45. Villiger, supra note 130.

133

134

Oppenheim, International Law: A Treatise (ed. H. Lauterpacht), 7th edn. (London: Longmans, Green & Co Ltd., 1955), vol. 1, p. 874.

not acquiesce in, and does not recognise, certain acts.135 Thus a protest, if persistently voiced136, is a negative reaction against the formation of a customary rule. In other words, such a practice will not be customary rule against the protesting State(s). Along this line of argument the World Court held the 12-mile territorial water limit inapplicable to Norway as she had persistently objected to its application.137 However, the typical way of acceptance of a practice as a customary rule is the absence of protest, i.e. by acquiescence.138 That toleration or acquiescence makes law is expressed in the following words: Governments know that toleration of practice (acquiescence) leads to its being legalized, to the formation of a new customary rule. Hence international events are watched and every situation undesirable for a State provokes an immediate reaction for fear of the consequences for that State of its being said to have acquiesced in a precedent leading to custom.139 Thus if there has been a change in the air law as a result of the use of satellites, the practice of States other than the satellites launching States has been manifested through toleration of the use.140 As it has been noticed earlier, Mahmassani did not include opinio juris in the list of the requirements of custom. In reality, however, it inheres in the requirements he specified. The essence of those requirements is that a custom must be a dominant recurrent practice friendly with Shariah. Such a practice comes into being through peoples agreement. This means that a custom comes into being through the repeated practice of people in their social, business or other dealings, which they agree upon, by express consent or acquiescence. Peoples agreement upon any practice in transactional matters (muamalat) especially indicates that there must be an expression of a right on behalf of one or more people, which must be accepted as an obligation
135 136

Ibid., pp. 874-875 (footnotes omitted) Ibid., p. 875.

137

Fisheries case, (UK v. Norway), IJC Reports 1951, p. 131. However, Condorelli maintains that through widespread acceptance if a norm reflects a truly general practice and opinio juris it is then binding on everyone including, in our view, the persistent objector. Supra note 23, p. 205.
138

Harris, supra note 98, p. 36. Hamid, supra note 77, p. 39 n. 61. Harris, supra note 98, p. 36.

139

140

by others. In other words, the recurrent practice in question creates a right-duty relation among the members of the society. Suppose, in wholesale business transactions it is a practice among the people that 25% of the total price shall be paid at the time of contract and the remaining 75% at the time of delivery of the goods. In this case both the upfront payment and deferred payment are the right of the seller and at the same time the corresponding obligation of the buyer. Such a social or community agreement has been approved by the Prophet when he said, Whatever Muslims consider to be good is good in Gods sight.141 So, the right-duty relations created by Muslims, expressly or by acquiescence, receives Divine approval to be good with the implication that this relation should be maintained. In other words, it should not be breached. If it is breached, sanctions should follow.

The requirement of opinion juris is obvious with respect to custom in the international arena because Siyar, like international law, is reciprocal by nature. This reciprocity may be treaty-based or custom-based. When it is custom-based, there must be, as mentioned above,142 an expression of a right by one or more States and an acceptance of that right by other interested States as an obligation. An Islamic State that has a reservation about any custom has the right to persistently protest against it.143

Now, how can the custom criterion of opinio juris be satisfied? Same as in international law, the requirement may be fulfilled by express consent (e.g., declaration, resolution, ratification, etc) or implied consent (i.e. acquiescence). It is evidenced from the Prophets practice that by his verbal words, physical actions or tacit approvals he accepted some of the preIslamic customs and rejected others, or introduced new rules of conduct. For example, it was an Arab tradition of taking pride on their tribal supremacy and they used to fight for it even for years, from generation to generation. This was the practice in the international arena of that time as well. For example, there was intermittent fighting between Romans and Persians over their

141

Some claim, however, that this is a saying of Abdullah ibn Masud, one of the leading Companions of the Prophet. See Kamali, supra note 32, p. 241 and the accompanying note.
142

See the text accompanied by note 128, supra. See further the text accompanied by notes 157 and 158, infra.

143

nationalistic superiority.144 The Prophet disapproved such a pride-based international relation when he said in his Farewell Sermon that All mankind is from Adam and Eve, an Arab has no superiority over a non-Arab nor a non-Arab has any superiority over an Arab; also a white has no superiority over a black nor a black has any superiority over a white - except by piety and good action.145

Again, there were practices which the Prophet approved either expressly or tacitly. For example, there was a practice of exchanging ambassadors in international relations even before the Prophet as evidenced in the Quranic story of bilateral commissioning of emissaries by Prophet Sulaiman (Solomon) and the Queen Biqis of Seba.146 Ambassadors enjoyed respect, honour and privileges, even if they were from an enemy country as was in the case of Sulaiman and Bilqis. The Prophet accepted this practice by acquiescence. He himself sent and received ambassadors. The Kings/Governors to whom sent ambassadors included, among others, Hercleus, the Emperor of Byzantine, Chosroes II, the Emperor of Persia, Negus, the King of Abyssinia, and Muqawqis, the Ruler of Egypt.147 The Prophet invited them to accept Islam. All the letters being similar in content, the following is the letter sent to Heraclius: In the name of Allah, the Beneficent, the Merciful. This letter is from Muhammad the slave of Allah and his Apostle to Heraclius, the ruler of the Byzantines. Peace be upon him who follows the right path. Furthermore, I invite you to Islam and if you become a Muslim you will be safe, and Allah will double your reward, and if you reject this invitation of Islam you will be committing a sin by misguiding your subjects. And I recite to you Allah's statement: O People of the Scriptures! Come to a word common to you and us that we worship none but Allah and that we associate nothing in worship with Him, and that none of us shall take others as Lords beside Allah. Then if they turn away,
144

See in this respect Quran, Chapter Rum (30)

145

http://www.prophetmuhammadleadership.org/prophet_muhammad_style_of_commun%20as%20world%20leader .htm (visited on 25 Jan 09)

146

Quran, Chapter Al-Naml (27). Supra note 145.

147

say: Bear witness that we are Muslims (those who have surrendered to Allah). (Quran: Surah 3, Ayah 64).148 Except Chosroes II all the kings/rulers received the letter with respect and also honoured the respective ambassadors. Chosroes II tore the letter and said, My slave dares to write me thus.149 The Prophet disapproved his action saying that even so shall God shatter his kingdom to
pieces.150 The Prophets disapproval was more explicit when his ambassador, Harith bin Umayer, commissioned to the King of Busra, Shurahbil, was killed by the ruler of Muta. Obviously

aggrieved at the breach of this long standing international customary rule, the Prophet He ordered an army to advance against the King under the leadership of Zayed bin Haritha.151

As well, the Prophet received emissaries and showed respect and honour and granted them due right, freedom and dignity. Two instances may be cited here. First, the Prophet received two emissaries from Musaylama, the false claimant of Prophethood. Despite their rude behavior he did not ill-treat them. The Prophet said: I swear by Allah that if emissaries were not immune from killing, I would have ordered you to be beheaded.152 Second, the Prophet kindly treated Wahshi, the ambassador of the people of al-Taif, who martyred the Prophets uncle at the battle of Uhud.153 Beside, the Prophet let a Christian delegation of Najran hold their service in his mosque.154 Last, Islam acknowledges the immunity of diplomatic agents from customs

148

Supra note 145 Supra note 145 Supra note 145. The Prophets invocation came into true. Later the Persian Empire came under the Muslim rule.

149

150

151

See Could you give information about the battle of Muta? at http://islambyquestions.net/moreAbout/Muta.htm (visited on 25 Jan. 09)
152

H.M. Zawati, Is Jihad a Just War? War, Peace, and Human Rights under Islamic Public International Law (Lewiston, N.Y., Edwin Mellen Press, 2001) pp. 79-80 cited in J. Rehman, Islamic State Practices, International Law and Threat from Terrorism: A Critique of the Clash of Civilizations in the New World Order, (Oxford ; Portland, Or. : Hart, 2005), pp. 188-119.
153

Ibid. Ibid.

154

duties and other taxes during their stay in an Islamic State.155 The ICJ acknowledges this contribution of Islam to present international law in the following words: (T)he principle of the inviolability of the persons of diplomatic agents and the premises of diplomatic missions is one of the very foundations of the long-established regime [of diplomatic and consular privileges laws], to the evolution of which the traditions of Islam made a substantial contribution.156

The foregoing confirms Islamic opinio juris, that is, the rules of express and tacit acceptance of international practices as international customary rules, conforms to the present international law as discussed above. The most important distinguishing rule of Siyar in this respect is that an Islamic State shall not endorse, in any manner whatsoever, any practice at the international plain, which conflicts with the Shariah or the spirit of Shariah. In such a case Islamic States can always persistently object to any existing customary law or emerging norm deemed to be incompatible with the Shariah. On account of the protest, such a customary law or norm that has formed into a rule will not be applicable against them through the operation of the persistent objector doctrine.157 Of course, such a protest against an established norm of the international community (such as the anti-apartheid principle158), may not stand in Siyar.

In addition, an Islamic State may withhold its consent to or raise protest persistently against an international practice where(a) it has already been a party to a treaty or agreement, which is contrary to the customary practice in question; or (b) the customary practice involves some immoral or inhuman matters, which is not acceptable to any people of sound mind; or
155

Ibid.

156

Case Concerning the United States Diplomatic and Consular Staff in Tehran, (1980) I.C.J. 3, p. 40. For a brief account of Islamic contributions to international law, see Gamal Badr, A survey of Islamic international law, 76 Am. Socy Intl L. Proc. 56 (1982).
157

Brownlie, supra note 85, p. 10. See also, A sylum case (Colum bia v.Peru) , 1 9 5 0 I.C.J. 2 6 6 , 2 7 2 -7 8 and Fisheries Case (United Kingdom v. N orway) , 1 9 5 1 I.C.J. 1 1 6 , 1 2 4 -3 1 .
158

Condorelli, supra note 23, p. 205.

(c) it is engaged in any international transaction which precedes the custom in time.

These are the internal factors for an Islamic State to consider before accepting an international practice as a rule binding on it. However, except for the Shariah compliance condition, the above three phenomena may also be the grounds of non-acceptance of a customary practice by a non-Islamic State.

4. Conclusion From the foregoing discussion it is learnt that custom is a source of both Siyar and international law with two common fundamental similarities respecting the constituent elements. First, there must be a general (not necessarily universal) and consistent practice of States over some period of time. Second, States must accept that practice as law to regulate their international relations. States may demonstrate their acceptance either by clear positive action or by toleration. The former includes signing or ratifying treaties supporting or giving effect to a particular customary practice, adopting resolutions by international organizations like the UN General Assembly, national laws, specific declaration endorsing a particular act, and so on. Alternatively, States may accept a particular practice by toleration, that is, by registering no protest against that practice. Their decision to protest or not to protest depends on various factors like religious, moral, ethical, political, humanitarian or policy considerations. For an Islamic State the most important matter of consideration is that the customary practice in question must not conflict with the Shariah or the spirit of Shariah. This is the pre-condition for acceptance of an international customary practice. In other words, this is the sine qua non for the validity of a customary practice according to the Shariah in general and the Siyar in particular. Where a customary practice is not Shariah friendly, the Islamic States may disapprove it by persistently objecting to it. Apart from this aspect, the qualifying criteria of custom as a source of Siyar and international law are all the same, namely, to reiterate, consistent general practice of States and acceptance of that practice as law.