Islamic Sovereignty Norms and Peaceful Settlement of Territorial Disputes

China’s South China Sea Claims, the Historic Rights Debate and the Middle Approach of Islamic International Law

“…A more articulate meaning refers to siyar in terms of its subject matter as 'legal matters such as the relations between Muslims and non-Muslims, apostates and rebels within the Islamic State as well as outside of it' (Bouzenita, 2007). However, there are queries as to modern compatibility of siyar, drawing upon the difficulties of embedding the principles of siyar into modern international legal order (Cravens, 1998;Lombardi, 2007;Powell, 2016;Powell & McDowell, 2016;Westbrook, 1993).…”

“…It has been argued that since siyar is based on the Islamic faith, it could not fit into the international legal order or at the least, its principles could hardly be applied by modern international law institutions including the ICJ (Cravens, 1998;Lombardi, 2007;Powell, 2016;Powell & McDowell, 2016). In the modern international law system, a plurality of political, strategic, and legal factors affects how any government operates.…”

“…International behaviour of any country emerges as an outcome of an intricate balance of these factors' convergence (Powell, 2016). In the meantime, modern international law is based on Western notion of sovereignty which is different from such notion in Islamic international law (Powell & McDowell, 2016). Sovereignty under the former denotes that ultimate political authority lies in a given territory that it (sovereignty) is in the exclusive domain of the state whose power is limited by people's inalienable rights (Powell & McDowell, 2016).…”

“…Islam's notion of sovereignty is not exclusively tied to territory but to personal affiliation to the Islamic faith (the umma) (Powell & McDowell, 2016). Sovereignty belongs to God (Allah) and unlike the right to own land being tied to the notion of 'title' in the Western context, such ownership in Islam is held in trust of God (Powell & McDowell, 2016), negating absolute ownership by a title holder of certain types of land and natural resources which are subject to community beneficial use and state stewardship (Cravens, 1998). Prophet Muhammad also had international legal personality, having legal capacity to enter into treaties with neighbouring states (Khalilieh, 2019).…”

“…In Western Sahara Advisory Opinion, ICJ GL No 61, [1975] ICJ Rep 12, 16th October 1975, the ICJ recognised rights of nomadic tribes to the land that they had been traversing for a long duration. Nevertheless, the basis of the link under modern international law could not be the Islamic faith as the ICJ rejected Morocco's claim that it should have sovereignty over Western Sahara based on the past allegiance of the Western Saharans to Moroccan Sultans who directly descended from Prophet Muhammad (Cravens, 1998;Lombardi, 2007;Powell, 2016;Powell & McDowell, 2016).…”