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ISLAMIC LAW STATES AND THE

AUTHORITY OF THE INTERNATIONAL
COURT OF JUSTICE: TERRITORIAL
SOVEREIGNTY AND DIPLOMATIC
IMMUNITY
EMILIA JUSTYNA POWELL*

I
INTRODUCTION
The principal judicial organ of the United Nations (UN)—the International
Court of Justice (ICJ)—adjudicates interstate disputes and issues advisory
opinions on legal questions referred to it by authorized UN organs and
1
specialized agencies. The Court has contributed to the peaceful resolution of
disputes by delivering justice in a variety of issue areas including territorial
sovereignty, maritime delimitation, and diplomatic relations. Throughout its
history, the ICJ has strived to transform its formal authority, as established in its
2
Statute, into authority in fact. Hypothetically, such transformation would occur
if countries not only recognized the Court’s jurisdiction, but also acknowledged
3
that the ICJ’s rulings impose an obligation to comply. However, distinct
features of the ICJ’s jurisdiction make it almost impossible for the Court to
establish authority over the entire zone of its jurisdiction. Additionally, perhaps
more so than other international courts (ICs) addressed in this issue, the ICJ
operates in an environment with attractive litigation alternatives that siphon
cases away from it. Finally, the ICJ is not always accepted as an authoritative
adjudicator by its potential audience, especially if one considers the broad range
of substantive areas of law that might be seen as falling under the ICJ’s formal
jurisdiction.
This article considers Islamic law states (ILS) as a least likely case for ICJ
authority. The Court—already constrained by its specific jurisdictional design

Copyright © 2016 by Emilia Justyna Powell.

This article is also available at http://lcp.law.duke.edu/.
* Assistant Professor, Department of Political Science, University of Notre Dame. I thank Sarah
Yunjung Jung, Robert O’Brien, and Joe Rhee for excellent research assistance.
1. The Court, INT’L COURT OF JUSTICE, http://www.icj-cij.org/court/index.php?p1=1 (last visited
Feb. 21, 2015).
2. “The Statute of the International Court of Justice is annexed to the Charter of the United
Nations, of which it forms an integral part. The main object of the Statute is to organize the
composition and the functioning of the Court.” Statute of the Court, INT’L COURT OF JUSTICE,
http://www.icj-cij.org/documents/?p1=4&p2=2 (last visited Mar. 19, 2015).
3. See generally SARA MCLAUGHLIN MITCHELL & EMILIA JUSTYNA POWELL, DOMESTIC LAW
GOES GLOBAL: DOMESTIC LEGAL TRADITIONS AND INTERNATIONAL COURTS 205–20 (2011).
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210 LAW AND CONTEMPORARY PROBLEMS [Vol. 79:209

and choice of forum options—faces additional hurdles in building up its

authority vis-à-vis ILS. This article asks: Why and under what conditions are
ILS willing to accept the ICJ’s authority? This question is considered in the
context of two substantive areas of the ICJ’s jurisdiction: territorial sovereignty
and diplomatic immunity. In territorial sovereignty cases, despite the conflict
between Islamic law’s edicts regarding territorial ownership and international
law, ILS sometimes use the ICJ and respect its rulings. Yet although the ICJ is
able to attain narrow authority in the territorial disputes it adjudicates, the
Court encounters a number of constraints that preclude it from reaching
intermediate authority. In diplomatic immunity cases, despite the consistency
between Islamic and international law regulating diplomatic protection, ILS are
not particularly willing to accept the ICJ’s authority. The role of strategic
considerations is evident across all ILS cases that make it to The Hague—
regardless of the relationship between Islamic and international law.
Part II situates the ICJ vis-à-vis other ICs and analyzes the Court’s
distinctive features and their ramifications for the Court’s authority. Part III
discusses the category of ILS, highlighting two factors that can impact the ICJ’s
authority in relation to ILS: the distinctive doctrines of Islamic international law
(siyar), and ILS’ preference toward nonconfrontational dispute settlement. Part
IV explores two issue areas in which the relationship between the ICJ and ILS
can potentially vary: territorial sovereignty—in which international and Islamic
law are at odds—and diplomatic immunity, in which Islamic law and
international law coexist without conflict.

II
THE ICJ’S DISTINCTIVE JURISDICTION
The ICJ was created as a successor of the Permanent Court of International
Justice. The UN Charter defines the ICJ as “the principal judicial organ of the
United Nations” and declares that “[a]ll Members of the United Nations are
4
ipso facto parties to the Statute of the International Court of Justice.” Notably,
the UN Charter requires the peaceful settlement of disputes, identifying a
number of means to this end, including seeking “a solution by negotiation,
enquiry, mediation, conciliation, arbitration, judicial settlement, resort to
regional agencies or arrangements, or other peaceful means of their own
5
choice.” Most of the Charter’s discussion about the peaceful settlement of
6
disputes is focused on the Security Council. Indeed the discussion of the ICJ’s
rule makes clear that “[n]othing in the present Charter shall prevent Members
of the United Nations from entrusting the solution of their differences to other
tribunals by virtue of agreements already in existence or which may be

4. U.N. Charter art. 92, 93.

5. U.N. Charter art. 33–38.
6. Chapter VI of the U.N. Charter includes articles 33–38, each of which focuses on the Security
Council’s role in settling disputes through peaceful means.
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7
concluded in the future.”
There are several distinctive features of the ICJ that, together, directly
affect its ability to acquire authority in fact: (1) dual jurisdiction, that is,
jurisdiction in advisory and contentious cases; (2) a subject matter scope that
potentially includes all of international law, both custom and treaties; (3) an
extensive practice of reservations by states that recognize the Court’s
compulsory jurisdiction; and (4) attractive alternatives to ICJ litigation. These
distinctive characteristics differentiate the ICJ from the other ICs in this
symposium and create particular challenges for the ICJ in building up its
authority in fact.

A. Dual Jurisdiction
Unlike most other ICs, the ICJ has a dual jurisdiction. The Court’s primary
purpose is to adjudicate contentious disputes between states, although it can
also give advisory opinions on legal questions referred to it by authorized UN
organs and specialized agencies. Recognizing this duality is important in
assessing the ICJ’s ability to acquire authority, for decisions issued within each
domain can potentially affect different audiences. The Court’s judgments in
contentious cases are legally binding only on the state parties to a dispute. In
principle, there is no legal obligation for other states facing like situations to
comply with these rulings. This reality makes it challenging for the ICJ to
establish intermediate authority, defined in the symposium’s introduction as an
8
authority that extends to similarly situated litigants. The situation is different
when the ICJ is asked to interpret international law under its advisory
jurisdiction. Although advisory opinions are not legally binding, they can have
an indirect influence in shaping international law, including an influence on
states that have ratified the treaties the Court interprets but that have not
9
consented to the ICJ’s compulsory jurisdiction. These rulings do not have
proper parties, and are thus not really addressed to specific disputes between
10
countries in the same way as judgments in contentious cases.

B. Wide Subject Matter Jurisdiction

Whereas other ICs with global geographic reach—the International
Criminal Court, the International Tribunal for the Law of the Sea, or the World
Trade Organization Dispute Settlement system—have jurisdiction over specific
predefined sets of legal rules, the ICJ potentially has adjudicative jurisdiction

7. U.N. Charter art. 95.

8 . Karen J. Alter, Laurence R. Helfer & Mikael Rask Madsen, How Context Shapes the Authority
of International Courts, 79 LAW & CONTEMP. PROBS., no. 1, 2016, at 10.
9. See MAHASEN M. ALJAGHOUB, THE ADVISORY FUNCTION OF THE INTERNATIONAL COURT
OF JUSTICE 1946–2005, at 116–17 (2006); see also Pieter H.F. Bekker, The World Court’s Ruling
Regarding Israel’s West Bank Barrier and the Primacy of International Law: An Insider’s Perspective, 38
CORNELL INT’L L.J. 553, 564 (2005).
10. IAN HURD, INTERNATIONAL ORGANIZATIONS: POLITICS, LAW, PRACTICE 194 (2011).
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212 LAW AND CONTEMPORARY PROBLEMS [Vol. 79:209

11
over “all legal disputes.” A legal dispute is defined as “a disagreement on a
12
question of law or fact, a conflict, a clash of legal views or of interests.” States
may file declarations recognizing the ICJ’s compulsory jurisdiction for all or
some legal disputes through acceptance of the Optional Clause in Article 36(2)
of the ICJ Statute. Alternatively, states can confer ICJ jurisdiction in bilateral
and multilateral treaties. These compromissory jurisdiction clauses appear in
international agreements pertaining to a variety of issue areas, such as the
environment, organized crime, corruption, and air services.
Jurisdiction over contentious cases and advisory opinions in combination
with wide subject matter jurisdiction may suggest that the ICJ has far-reaching
authority, because all states are potential future litigants, and all legal disputes
may fall within the Court’s contentious or advisory jurisdiction. However, the
next two institution-specific contextual factors—states’ ability to customize their
ICJ commitments as well as attractive alternatives to litigation—cast doubt on
the scope of that authority.

C. Reservations
The ICJ has jurisdiction only with respect to states that have expressly
consented to its jurisdiction, and the specific boundaries of consent may be
limited. Nearly all countries have customized their ICJ commitments via
reservations in declarations under the Optional Clause in Article 36(2). These
restrictions may pertain to specific states (reservations ratione personae), time
13
periods (ratione temporis), and areas of international law (ratione materiae).
For states that file an optional declaration accepting the Court’s compulsory
jurisdiction, the Court has compulsory jurisdiction only with respect matters
involving other states that have similarly filed such a declaration. Thus, the
designation “compulsory jurisdiction” is somewhat of a misnomer in the context
of the ICJ.

D. Alternatives to International Litigation

The ICJ operates in an environment with attractive alternatives to litigation,
unlike some other ICs, especially those with limited subject matter jurisdiction.

11. Statute of the International Court of Justice, art. 36, http://www.icj-cij.org/documents/?p1=4&p

2=2#CHAPTER_II.
12. Contentious Jurisdiction, INT’L COURT OF JUSTICE, http://www.icj-cij.org/jurisdiction/index
.php?p1=5&p2=1 (last visited Feb. 24, 2015).
13. Reservations ratione temporis guard against cases originating from the past. For example,
several countries place reservations excluding World War I (Declaration of Poland 1931), or World
War II (Australia 1940, United Kingdom 1940) from the Court’s jurisdiction. Ratione materiae are the
largest group of reservations. The United Kingdom’s 1957 Optional Clause declaration excluded the
ICJ’s jurisdiction from any question that could affect the national security of the United Kingdom or its
dependent territories. The most common ratione personae reservation is the one used by British
Commonwealth countries. It excludes from the ICJ’s jurisdiction disputes among these states.
MITCHELL & POWELL, supra note 3, at 170. See also S.A. ALEXANDROV, RESERVATIONS IN
UNILATERAL DECLARATIONS ACCEPTING THE COMPULSORY JURISDICTION OF THE
INTERNATIONAL COURT OF JUSTICE 91 (1995).
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These alternatives siphon cases away from the ICJ and diminish its ability to
build authority in fact in many issue areas. Several disputes can be, and often
are, resolved through arbitration and mediation, or litigated before other ICs
with subject-specific jurisdiction, such as the International Tribunal for the Law
of the Sea. In comparison to these alternatives, ICJ litigation can be more
expensive and time-consuming, limit the parties’ control over procedures, and
14
result in a legally binding judgment that states may prefer to avoid.
Although in theory the ICJ can be consulted for any issue of concern to
states, its de jure subject matter jurisdiction is limited and varies across issues
and states. ICJ rulings are considered to be legally persuasive, even
15
authoritative. But reservations, persistent objections, and lawful exits are also
16
seen as valid limits to the Court’s power. Thus, even those who see the ICJ as
legally authoritative perceive its extensive authority as limited by virtue of the
many exceptions to its jurisdiction.
Also, the fact that the ICJ can only adjudicate cases involving states that
have expressly consented to its jurisdiction in some form or fashion prevents the
ICJ from developing intermediate authority across the full range of its subject
matter jurisdiction and across all countries. In essence, the ICJ’s institutional
design accentuates the “exceptional nature of international adjudication” by
17
giving states “de facto veto power” over the Court’s jurisdiction. These
structural limitations coupled with forum shopping not only make it very
difficult for the ICJ to establish narrow and intermediate authority; they also
limit the ICJ’s extensive authority.

III
ILS AND THE ICJ
My focus on ILS comes from my deeper interest in understanding the
relationship between Islamic law and international law in the context of
18
peaceful resolution of disputes. The ICJ, as the principal judicial organ of the
UN, would seem to be an important venue for resolving such disputes. Before
that issue is analyzed, three preliminary concerns warrant up-front clarification:
defining the category of ILS, accounting for the internal variations among those

14. Emilia Justyna Powell & Krista E. Wiegand, Strategic Selection: Political and Legal
Mechanisms of Territorial Dispute Resolution, 51 J. PEACE RES. 361 (2014).
15. See generally J.G. MERRILLS, INTERNATIONAL DISPUTE SETTLEMENT (2011); CONSTANZE
SCHULTE, COMPLIANCE WITH DECISIONS OF THE INTERNATIONAL COURT OF JUSTICE (2004);
Aloysius P. Llamzon, Jurisdiction and Compliance in Recent Decisions of the International Court of
Justice, 18 EUR. J. INT’L L. 815 (2008).
16. See Mitchell & Powell, supra note 3.
17. Yuval Shany, No Longer a Weak Department of Power? Reflections on the Emergence of a
New International Judiciary, 20 EUR. J. INT’L L. 73, 78 (2009).
18. See generally Emilia Justyna Powell, Islamic Law States and the International Court of Justice,
50 J. PEACE RES. 203 (2013) [hereinafter Powell, International Court of Justice]; Emilia Justyna Powell,
Islamic Law States and Peaceful Resolution of Territorial Disputes, 69 INT’L ORG. J. 777–807 (2015)
[hereinafter Powell, Territorial Disputes].
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214 LAW AND CONTEMPORARY PROBLEMS [Vol. 79:209

states, and reconciling the dogma-versus-practice issue associated with Islamic

international law.
Previously, I have defined an ILS as a state a substantial part of whose
19
official legal system is directly based on the Koran. This definition does not
depend on the religion or political preferences of citizens, but rather on whether
a country officially and directly applies sharia as a substantial part of personal,
civil, commercial, or criminal law. The ILS category differs from other
seemingly similar definitions, such as “Islamic states,” “Arab states,” or
“Muslim states,” all of which place emphasis on some defining feature of being
Islamic. For example, the category “Muslim states” usually denotes countries
with a majority Muslim population. According to Berger, there are about fifty
20
states meeting this criterion. Some scholars prefer the term “Islamic” to
21
“Muslim” to describe “Muslim countries that are distinctively religious.” The
reliance on domestic legal features and not on other characteristics of a society
or its governance is particularly crucial in the context of this article’s focus:
consonance and dissonance between domestic and international laws.
As with any category imposed on a collectivity of states, there are
considerable gray areas at the edges of ILS. Laws move across borders, and
domestic legal systems change over time. Few countries officially identify
themselves as “Islamic”; thus, there is no agreement in the literature on how
much traditional Islamic law must be incorporated into the legal system for a
country to be considered “Islamic.” As Berger suggests, labelling a state Islamic
22
“depends on various factors, and is mostly in the eye of the beholder.”
Keeping these important caveats in mind, for the purpose of this article the ILS
category is less noisy than other alternatives because it is based on the formal
law of the domestic legal system rather than the presence or absence of other
indicators of “Islam-ness.” This focus on formal law means that I exclude
countries like Turkey, where Muslims constitute the majority of the population
yet where the legal system has intentionally distanced itself from the creeds of
sharia. Figure 1 offers a geographical display of all ILS, and Figure 2 provides a
listing of ILS’ Muslim population (raw numbers and percentages). India,
Bangladesh, and Turkey, three non-ILS with large Muslim populations, are
included in Figure 2 for the purpose of comparison.

19. Powell, International Court of Justice, supra note 18; Powell, Territorial Disputes, supra note
18.
20. Maurits Berger, Islamic Views on International Law, in CULTURE AND INTERNATIONAL LAW
105, 109 (Paul Meerts ed., 2008).
21. Id. at 110.
22. Id.
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Figure 1: Map of Islamic Law States

Figure 2: Muslim Population (Raw Numbers and Percentages) in ILS and

23
Non-ILS

87 ILS Non-
200,000,000 ILS
96 13

150,000,000 90

100,000,000
90
50 99 100

50,000,000
99 99
99 97 99 100
99 87
61
99 97
97 76 100
77 86 54 90 78 98 70 100
0
Bahrain
Nigeria

Algeria

Qatar
Comoros

Turkey
Indonesia

Saudi Arabia

Syria

Tunisa

Libya
Egypt

Afghanistan

Malaysia

Jordan

Mauritania

Gambia
Pakistan

Iran

UAE

Kuwait
Oman

Bangladesh
Morocco
Iraq
Sudan

Yemen

Lebanon

India
Maldives

23. See CIA, THE WORLD FACTBOOK, https://www.cia.gov/library/publications/the-world-

factbook/ (retrieved Dec. 10, 2014); PEW RESEARCH CENTER, THE FUTURE OF THE GLOBAL MUSLIM
POPULATION,ihttp://www.pewforum.org/files/2011/01/FutureGlobalMuslimPopulation-WebPDF
Feb10.pdf.
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216 LAW AND CONTEMPORARY PROBLEMS [Vol. 79:209

Today’s ILS differ from their historical predecessors for whom sharia was
justified as a divine plan and provided an absolute basis for state law. Included
in my definition of ILS are states where sharia applies only to certain legal
domains. Today’s ILS also differ from their predecessors in that domestic legal
authorities often interpret sharia moderately, acknowledging socioeconomic
developments and recognizing that certain domains such as modern business
transactions, criminal law, and legal matters of non-Muslims require secular
governance. Many of the contemporary ILS follow a well-established trend of
limiting the sharia courts’ jurisdiction to personal cases dealing with property,
inheritance, and marriage. Important parts of legal systems are regulated by
24
secular laws, and secular courts constitute a crucial part of the legal landscape.
The reach of Islamic law may be attenuated, but this evolution does not change
the reality that in ILS, more than in other countries, religious laws are part of
the official legal system. Indeed, as my previous research demonstrates, ILS’
constitutions mention sharia and Islam on average 16.6 times, ranging from 0
25
(Indonesia) to 93 (Iran).
The ILS category is internally diverse, especially at the level of doctrine,
legal interpretation, and legal theory. Schools of Islamic law (madhahib) have
historically offered differing interpretations of sharia. This reality has
fundamentally shaped Islam. In no other legal system is there such a diversity of
opinion between different schools of law and individual scholars. As Vikør
succinctly put it, “There is no such thing as a, that is one, Islamic law, a text that
26
clearly and unequivocally establishes all the rules of a Muslim’s behavior.” For
example, there are currently three Shi’a and four Sunni legal schools widely
27
acknowledged that provide diverging interpretations of law.
The formal incorporation of sharia into domestic law differentiates ILS from
states where a religion such as Christianity, Buddhism, or Hinduism plays an
important societal role. Religion may be a feature of public and political life in
these countries, but law and religion are not as interconnected in a tangible way
via a domestic legal system, constitutions, official codifications, and courts. A
degree of skepticism exists among scholars as well as policymakers about
28
whether and how sharia is relevant to ILS’ behavior. In the modern
international system, a plurality of political, strategic, and legal factors affects
how any government operates. International behavior of any country emerges

24. See Powell, International Court of Justice, supra note 18, at 209.
25. Id. at 212 (data as of 2006).
26. KNUT VIKØR, BETWEEN GOD AND THE SULTAN: A HISTORY OF ISLAMIC LAW 1 (2005).
27. The Shi’a schools are Ja’fari, Isma’ilis, and Zaydis, and the Sunni schools are Hanafi, Maliki,
Shafi’i, and Hanbali. There is also the Ibadhi madhab, which has a limited reach in the Islamic world.
See WAEL B. HALLAQ, THE ORIGINS AND EVOLUTION OF ISLAMIC LAW 150–77 (2005).
28. See generally Maurits S. Berger, Islam and Islamic Law in Contemporary International
Relations, in ISLAM AND INTERNATIONAL LAW: ENGAGING SELF-CENTRISM FROM A PLURALITY OF
PERSPECTIVES 393 (Marie-Luisa Frick & Andreas Th. Müller eds., 2013).
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as an outcome of an intricate balance of these factors’ convergence. To be sure,

in the case of ILS, sharia constitutes only one of these multiple forces. Most
importantly, in some ILS there is a real difference between the dogma of
Islamic law and the actual state practice. Although Islamic ideals are practiced
differently by different actors in ILS, the reality is that ILS citizens expect
religion to play a role in all aspects of life, including domestic and international
29
legal politics.
The notional commitment some governments repeatedly make to Islamic
law, and the expectation of many citizens that religion will play a role in all
aspects of life, combine to create constraints on ILS. Two factors in particular
have the potential to pull these countries away from the ICJ: Islamic
international law (siyar) and ILS’ preference toward nonconfrontational
dispute settlement. ILS are likely to embrace Islamic international law, siyar, as
30
a competing authoritative legal system. Siyar can be defined as a branch of
Islamic law that regulates the behavior of Islamic states and individuals in the
31
international arena. It is a system of norms that parallels the Western concept
of international law. Siyar is believed to derive from God’s eternal will, and its
origins lie in the Koran and the Sunna. Just as adherents to the Muslim faith are
32
to abide by sharia, so are Islamic tribes, nations, and states.
There are considerable doctrinal divergences between siyar and
international law. According to traditional Islamic law, judges should be devout
adherents of the Muslim faith. Additionally, under strict interpretation of
sharia, a Muslim may not be judged by non-Muslim judges. This behavioral
norm stems from the following Koranic jurisprudential rule: “And Allah will by
33
no means give the unbelievers a way against the believers.” According to some
Islamic jurists, this verse proscribes the domination of non-Muslims over
Muslims in any area, including domestic and international adjudication. The
position of a judge is associated with holding authority over disputants; thus a
Muslim person or collectivity (such as an ILS) should not refer a dispute to a
non-Muslim judge. This Koranic rule “is the reason that Islamic governments
often refuse to go to the international courts, whose judges are usually not
34
Muslim.”
Alter, Helfer, and Madsen note that IC rulings “may conflict with, and seek
to displace, well-established or assumed interpretations of legal rules or social

29. Anver M. Emon, Shari’a and the Modern State, in ISLAMIC LAW AND INTERNATIONAL LAW:
SEARCHING FOR COMMON GROUND? 52 (Anver M. Emon, Mark Ellis & Benjamin Glahn eds., 2012).
30. See William Samuel Dickson Cravens, The Future of Islamic Legal Arguments in International
Boundary Disputes Between Islamic States, 55 WASH. & LEE L. REV. 529, 532 (1997).
31. Mohd Hisham Mohd Kamal, Meaning and Method of the Interpretation of Sunnah in the Field
of Siyar: A Reappraisal, in ISLAM AND INTERNATIONAL LAW, supra note 28, at 64.
32. Interview with Mohammed Al-Qasimi, Vice Dean, College of Law, United Arab Emirates
University, in Al-Ain, U.A.E. (Nov. 2013).
33. KORAN 4:141.
34. E-mail from Seyed Masoud Noori, Research Director, Center for the Study of Islam & the
Middle East (CSIME), Washington, D.C., to author (Jan. 2014) (on file with author).
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218 LAW AND CONTEMPORARY PROBLEMS [Vol. 79:209

35
norms.” The juxtaposition of siyar and international law is a prime example of
this process. Siyar and international law, however, do not always provide
conflicting solutions to legal questions. For example, Islamic principles of
maritime law have historically converged with modern international law of the
sea. This convergence extends to such important principles as the freedom of
36
navigation and the status of high seas. Similarly, there is a considerable
overlap in the area of diplomatic immunity, environmental, and fresh-water
37
law. Part II explained how the ICJ, perhaps more so than other ICs, operates
in an environment with attractive litigation alternatives that siphon cases away
from the Court and diminish the ICJ’s ability to establish its authority in fact.
Islamic international law, siyar, creates an additional reason for ILS to prefer
alternatives to international adjudication.
Another reason ILS prefer alternatives to international adjudication is
Islamic law’s prioritization of brotherly settlement and nonconfrontational
methods over Western-style formal approaches to conflict resolution. Sulh—a
simple settlement between the disputants with help from a third-party—was the
Prophet Muhammad’s preferred method of resolving disagreements. Islamic
scholars propose that out-of-court reconciliation is religiously and ethically
38
better than in-court proceedings. Additionally, “the preferred ‘third party’ in
the Arab Islamic approach is an unbiased insider with ongoing connections to
the disputants, a strong sense of the common good, and standing within the
39
community.” Traditional Islamic law incorporates brotherly settlement into
court proceedings. The goal of a qadi—an Islamic law judge—is to encourage
disputants to denominate the solution on friendly terms.
In the process of building authority, the ICJ has to contend with litigation
alternatives such as conciliation, mediation, and arbitration. All states, Islamic
or not, have the option to resolve disputes via a variety of means across the
entirety of the ICJ’s jurisdiction. Yet, while Western legal systems embrace or
even promote courts, Islamic law legitimizes nonconfrontational dispute
resolution. With these methods, ILS may solicit help from an Islamic third party
40
and base the resolution process on sharia. Thus, the ICJ may receive fewer
cases from its Islamic audience and must struggle twice as hard to establish
authority vis-à-vis ILS. However, the attractiveness of these alternatives for ILS
does not remain constant across all substantive issue areas of international law.

35. Alter, Helfer & Madsen, supra note 8, at 4.

36. See generally HASSAN S. KHALILIEH, ISLAMIC MARITIME LAW (1998).
37. See generally Thomas Naff & Joseph Dellapenna, Can There Be Confluence? A Comparative
Consideration of Western and Islamic Fresh Water Law, 4 WATER POL’Y 65 (2002); Lisa Wersal, Islam
and Environmental Ethics: Tradition Responds to Contemporary Challenges, 30 ZYGON 415 (1995).
38. Aida Othman, “And Amicable Settlement Is Best”: Sulh and Dispute Resolution in Islamic
Law, 21 ARAB L.Q. 64, 65 (2007).
39. George E. Irani & Nathan C. Funk, Rituals of Reconciliation: Arab–Islamic Perspectives, 20
ARAB STUD. Q.4, 53, 63 (1998).
40. Powell, International Court of Justice, supra note 18; Krista E. Wiegand & Emilia Justyna
Powell, Past Experience, Quest for the Best Forum, and Peaceful Attempts to Resolve Territorial
Disputes, 55 J. CONFLICT RESOL. 361 (2011).
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ILS are surely a “hard case” for the ICJ to establish its authority. Many
countries have conflicting domestic legislation, but ILS are often more reluctant
to shed conflicting domestic law that is based on sharia. In addition, because
Islamic law puts a premium on mediation and conciliation over litigation,
choosing an alternative dispute settlement forum is especially likely for ILS. For
this reason, it is all the more remarkable that the ICJ has, in fact, been
embraced to some extent by ILS. Several ILS recognize the ICJ’s compulsory
jurisdiction, and more than fifty percent are part of over a hundred treaties with
42
compromissory clauses.
The next part considers the practice of ILS with respect to two issue areas:
territorial sovereignty and diplomatic immunity. In the territorial-sovereignty
area, siyar and international law have historically diverged. In contrast, there is
a well-established agreement in how siyar and international law regulate
diplomatic immunity. This article refers to judgments in contentious cases and
advisory opinions to illustrate the Court’s authority. During advisory
proceedings, states are under no obligation to officially submit oral or written
arguments; they may simply choose to do so. Neither the organizations
43
requesting an opinion nor states are required to comply. Behavior that
conforms to advisory opinions despite their nonbinding nature provides
important clues on ILS’ view of the Court.

IV
THE LEGAL PRACTICE OF ILS IN FRONT OF THE ICJ: TERRITORIAL DISPUTES
44
AND DIPLOMATIC IMMUNITY
This part evaluates whether conflicts between international law and siyar
affect the ICJ’s legal authority vis-à-vis ILS. It does so by examining two issue
areas in which ILS have approached the ICJ: disputes about territory and
disagreements between Islamic and non-Islamic states about diplomatic
immunity. Consonance or dissonance between siyar and international law does
not necessarily determine whether ILS accept the ICJ’s legal authority. The
Court seems to have narrow legal authority and perhaps even intermediate
authority in territorial dispute cases. In the diplomatic immunity issue area,

41. See GARY KING, ROBERT O. KEOHANE & SIDNEY VERBA, DESIGNING SOCIAL INQUIRY
(1994); Jason Seawright & John Gerring, Case Selection Techniques in Case Study Research: A Menu of
Qualitative and Quantitative Options, 61 POL. RES. Q. 294, 301 (2008).
42. Mitchell & Powell, supra note 3.
43. SCHULTE, supra note 15, at 15.
44. The focus of this article is distinctly on diplomatic immunity laws, which deal with diplomatic
privileges and immunities of diplomatic missions. See MALCOLM N. SHAW, INTERNATIONAL LAW
(2003). This is not a reference to a wider concept of sovereign immunity: these rules regulate the
magnitude to which a state may be free from the jurisdiction of a foreign state’s courts. This
contribution’s focus is on the convergence between Islamic law and international law. Islamic laws of
diplomatic immunity, specifically, exhibit remarkable similarity with modern international law. The
degree of convergence is much smaller in the context of sovereign immunity. For more discussion of
diplomatic immunity law versus sovereign immunity law, see Michael A. Tunks, Diplomats or
Defendants? Defining the Future of Head-of-State Immunity, 52 DUKE L.J. 651 (2002).
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220 LAW AND CONTEMPORARY PROBLEMS [Vol. 79:209

where siyar and international law coexist without conflict, ILS often push back
against the Court and challenge its decisions.
Siyar conceives of land ownership differently than international law, and
this difference has been a sore spot for ILS. International law, and Western law
more generally, suggests that land is owned by an individual or a state. By
contrast, Islamic notions of land ownership and sovereignty have a religious
nature. Land and water are considered to be sanctified trusts for the use of
individuals and collectivities such as tribes or states. Because God is the
ultimate owner of the land, states are merely overseeing the use of land, but
45
they have to do so in a just way. Sovereignty is, therefore, not absolute, but
conditional. Siyar and international law diverge in how they regulate territorial
concessions and acquisitions. Whereas international law’s approach to
territorial concessions is based on a zero-sum framework, siyar emphasizes
collective responsibility and collective gains.
In contrast to the laws relating to territory, Islamic laws of diplomacy have
historically resembled international law, as expressed in the 1961 Vienna
Convention on Diplomatic Relations and the 1963 Vienna Convention on
46
Consular Relations, both of which grant to diplomats absolute immunity from
arrest, detention, and prosecution. As several scholars argue, Islamic
conceptions of diplomatic immunity have influenced the development of
47
international law in this domain. According to Bsoul, the concept of
48
diplomatic safety originated in the Muslim world. Current Islamic regulations
of diplomatic immunity are firmly grounded in norms developed in the pre-
49
Islamic Arab era. Of particular interest is the concept of Amān that originated
during this time. As described by Bsoul, Amān indicated a “pledge of security
50
given to non-Muslims upon entering to dār al-Islām for a fixed period of time.”
This promise of protection was equivalent to the modern concept of diplomatic
immunity. The Koran and the Sunna, as well as the practice of the Caliphate
that developed over time, indicate that diplomats, their staff, and accompanying
persons were endowed with an elaborate set of immunities.
The rest of this part compares the legal practice of ILS across territorial
sovereignty and diplomatic immunity issue areas. First, this part addresses three
51
territorial cases: the Western Sahara advisory opinion, the Bahrain–Qatar

45. IRAJ SAIT & HILARY LIM, LAND LAW, AND ISLAM: PROPERTY AND HUMAN RIGHTS IN THE
MUSLIM WORLD 8 (2006).
46. Vienna Convention on Diplomatic Relations, Apr. 18, 1961, 500 U.N.T.S. 95; Vienna
Convention on Consular Relations, Apr. 24, 1963, 596 U.N.T.S. 261.
47. Khaled Ramadan Bashir, Treatment of Foreigners in the Classical Islamic State with Special
Focus on Diplomatic Envoys: Al-Shaybānī and Amān, in ISLAM AND INTERNATIONAL LAW, supra
note 28, at 153–58.
48. LABEEB AHMED BSOUL, INTERNATIONAL TREATIES (MU’AHADAT) IN ISLAM: THEORY
AND PRACTICE IN THE LIGHT OF ISLAMIC INTERNATIONAL LAW (SIYAR) ACCORDING TO
ORTHODOX SCHOOLS 39 (2008).
49. Id.
50. Id.
51. Western Sahara, Advisory Opinion, 1975 I.C.J. 12 (Oct. 16).
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52 53
dispute, and the Wall advisory opinion. Addressed next are diplomatic
immunity cases including Diplomatic and Consular Staff in Tehran—the ICJ’s
ruling on the immunity of American diplomats taken hostage by students in the
54
aftermath of Iran’s Islamic revolution, the Lockerbie dispute regarding
55
international jurisdiction, and the Special Rapporteur of the Commission on
56
Human Rights advisory opinion.

A. ILS’ Territorial Cases at the ICJ

My previous research shows that in the context of territorial disputes, ILS
57
prefer nonbinding, third-party methods. This is particularly true for those ILS
that directly incorporate traditional sharia laws into their official legal system.
As Figure 3 shows, ILS’ preferences lean toward the nonbinding resolution
venues at a higher rate than that prevailing among the non-ILS (twenty-nine
percent versus nineteen percent). A considerable number of ILS’ attempts at
peaceful resolution involve binding venues, such as international courts and
arbitration panels (sixteen percent), which are considered more amenable to
non-Islamic states.
The three cases discussed below highlight ILS’ preferences in the context of
territorial disputes and illustrate why in some instances these countries use the
ICJ. Overall, despite the conflict between siyar’s edicts regarding territorial
ownership and international law, in some instances ILS use the ICJ and respect
its decisions. However, although the ICJ achieves narrow authority in the
territorial disputes it adjudicates, the Court faces a number of challenges that
prevent it from reaching intermediate authority. ILS often work with the ICJ
only on their own terms and limit the Court’s involvement by avoiding
litigation. As is true with non-ILS, disputes reach the ICJ only when litigation
alternatives fail to provide solutions, and disputants mutually agree to
adjudicate and comply with the Court’s decision. It seems that perhaps at times
ILS may use the ICJ when convenient but rely on siyar if necessary to question
ICJ authority. The disjuncture between siyar and international law thus limits
the ICJ’s ability to establish intermediate or extensive authority with respect to
ILS in the context of territorial sovereignty.

52. Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v.
Bahrain), Judgment, 2001 I.C.J. 40 (Mar. 16).
53. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Wall
Advisory Opinion), Advisory Opinion, 2004 I.C.J. 136, (July 9).
54. Case Concerning United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran),
Judgment 1980 I.C.J. 3 (May 24).
55. Questions of Interpretation and Application of the 1971 Montreal Convention Arising from
the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. U.S.), Judgment, 1988 I.C.J. 115 (Feb. 27).
56. Difference Relating to Immunity from Legal Process of a Special Rapporteur of the
Commission on Human Rights, Advisory Opinion, 1999 I.C.J. 62 (Apr. 29).
57. Powell, International Court of Justice, supra note 18.
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222 LAW
A AND CONT
TEMPORARY P ROBLEMS [V
Vol. 79:209

Figure 3:
3 ILS and Non-ILS
N Atttempts at Peeaceful Reso
olution in Teerritorial
58
Disputes (19
945–2006)

70%

6
61%
60%
55%

50%

40%
Neggotiations

Non
nbinding 3rd--Party
30% 29%
Bin
nding 3rd-Partty

20% 19% 200%

6%
16

10%

0%
ILS Non-ILS

1. The Western
W Saharra Advisory Opinion
Western n Sahara, com mposed prim marily of deesert, fell un nder Spanishh rule in
1884. As a part of the process of decolon nization, in 1974, the Spanish
governmentt proposed to hold a referen ndum on Western Sahara’s
independence. This move was criticized by Mo orocco and Mauritania, both of
which had claims
c of sovvereignty over Western Sahara, as n negating the right of
the Sahrāw wīs—the pe eople inha abiting the disputed territory—tto self-
59
determinatio on. To delaay the plebisccite, Moroccco proposed the case be referred
60
to the ICJ.
The Cou urt ruled un nanimously that at thee time of Sp panish colonnization,
Western Sah hara did nott constitute teerra nullius, a territory b
belonging to
o no one,
and that neiither Moroccco nor Mauriitania had vaalid territorial claims to W Western

58. Powelll, Territorial Disp

putes, supra notte 18.
59. JOHN DAMIS, CONFLICT IN NORTHWE EST AFRICA: THHE WESTERN SAAHARA DISPUT
TE (1983).
60. MICHEELLE L. BURGIIS, BOUNDARIE ES OF DISCOUR RSE IN THE INTTERNATIONAL COURT OF
JUSTICE: MAPP
PING ARGUMEN NTS IN ARAB TER RRITORIAL DISSPUTE 197 (2009
9).
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61
Sahara based on historic title. The Moroccan response was quite astounding:
its leadership came to the conclusion that the ruling had validated Morocco’s
62
historic and legal claims to the territory. In other words, to legitimize its own
actions, Morocco distorted the opinion’s meaning to suggest that Moroccan
territorial claims have been “recognized by the legal advisory organ of the
63
United Nations.” Additionally, the Moroccan government declared that it
would march 350,000 “unarmed civilians” into Sahara to ensure the recognition
64
of its territorial claims. Shortly after the ICJ handed out the opinion, Spain,
Morocco, and Mauritania held tripartite negotiations, and it seems that Spain
agreed to a decolonization formula in which Western Sahara was to be
65
partitioned between Morocco and Mauritania. This agreement led to many
66
years of stalemate.
Does the Western Sahara case suggest that, at that time, the ICJ had some
authority in fact vis-à-vis Morocco and Mauritania? Despite the fact that both
of these countries actively participated in the ICJ proceedings and advanced
impressive legal arguments in the Court, it is clear that political interests
trumped any regard for the ICJ. Furthermore, neither country needed the ICJ’s
authorization to claim control over Western Sahara. The Alter, Helfer, and
67
Madsen framework of authority assumes the actual filing of cases. Regardless
of their motives, that Mauritania and Morocco did in fact agree to, or even
pressed for, the case reaching the ICJ suggests that the Court had perhaps was
perceived by the disputants to have some authority. It is also interesting that
Morocco’s initial preference was for the case to be heard under the ICJ’s
68
contentious jurisdiction, and the request for an advisory opinion by the UN
General Assembly came as a direct result of a compromise between Spain and
Morocco. Even more telling is the fact that Morocco intentionally twisted the
ICJ’s decision to legitimate its eventual occupation of Western Sahara. There
69
was “a consequential response” from all parties involved, but not toward
compliance. This suggests the conditions for narrow legal authority were not
met.
The ICJ’s proceedings in this case featured a discussion of an important
difference between siyar and traditional international law. While arguing its

61. Thomas M. Franck, The Stealing of the Sahara, 70 AM. J. INT’L L. 694, 710 (1976).
62. Samuel J. Spector, Western Sahara and the Self-Determination Debate, MIDDLE E.Q., Summer
2009, at 33, 7.
63. Press Release of the Permanent Mission to the United Nations on 16 October 1975, quoted in
UN Doc. S/PV.1849, 11 (1975) in Franck, supra note 61, at 711.
64. Letter from the Permanent Rep. of Morocco to the United Nations to the President of the
Security Council, UN Doc. S/11852 (1975) (Oct. 18, 1975).
65. Franck, supra note 61, at 715.
66. Spector, supra note 62, at 7.
67. Alter, Helfer & Madsen, supra note 8.
68. Minster for Foreign Affairs of Morocco, Letter dated Sept. 23, 1974 from the Minister for
Foreign Affairs of Morocco addressed to the Minister for Foreign Affairs of Spain, UN Doc. A/9771,
Annex (1974).
69. Id.
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224 LAW AND CONTEMPORARY PROBLEMS [Vol. 79:209

case in the ICJ, Morocco equated the Western Sahara peoples’ religious
allegiance to the Moroccan Sultan with territorial sovereignty. The ICJ’s
opinion adhered to the territorial ties-based, Western model of sovereignty
70
grounded in political authority.

2. Bahrain-Qatar Dispute—Appealing to the ICJ Because an Islamic

Solution Was Unattainable?
The Bahrain–Qatar dispute is the first instance in which two ILS used the
Court in a contentious case over territory. The protracted contention was over
five territories: the Hawar Islands; the island of Janan/Hadd Janan; the shoals of
Quit’at Jaradah and Fasht ad Dibald; as well as Zubarah—a townsite on the
71
northwest coast of Qatar. For many decades, the conflict kept surfacing:
whenever Qatar would raise its claim to the contested Hawar Islands, Bahrain
72
followed with restating its territorial claim to Zubarah. The contention was
finally settled by the ICJ in a 2001 decision that awarded each side a part of the
disputed territory. Bahrain kept the Hawar Islands and Quit’at Jaradah. The
Court determined that Qatar had sovereignty over Zubarah Janan/Hadd Janan,
and the Fasht ad Dibald. The ICJ judgment resolved a longstanding territorial
dispute between two ILS.
Islamic law’s preference toward nonconfrontational modes of resolution,
strategic considerations, and substantive disagreements between siyar and
international law regarding territory explain why both parties forum shopped
before handing the dispute over to The Hague. Qatar’s decision to submit the
dispute to the ICJ in 1991 came many years after the dispute erupted. While
Britain held strong influence in the Persian Gulf, the dispute was contained.
Settlement attempts by the British, however, were seen as biased toward
Bahrain and tainted by the British concern about the rich oil reserves in the
73
region. The first official resolution attempt was made by the Sheikhdom of
Qatar requesting arbitration by Britain in 1965. It took a considerable amount
of time after Qatar’s initial proposal until Bahrain agreed to use the ICJ in 1996.
The subsequent joint agreement to adjudicate in the ICJ came as a result of
repeated failure of Koran-supported informal reconciliation efforts.
The costs of continuing the dispute were also much higher than settling it via
any means. The Gulf Cooperation Council pressured both disputants to settle
their disagreements, which were stalling cooperation within the Gulf region.
Importantly, “[d]espite high hopes for the institution’s ability to mediate using a
74
framework of Islamic law and brotherly cooperation,” the Gulf Cooperation
Council was ultimately ineffective in helping to settle the contention. Faced

70. Cravens, supra note 30, at 531.

71. SCHULTE, supra note 15, at 234–35.
72. Id. at 235.
73. KAREN ALTER, THE NEW TERRAIN OF INTERNATIONAL LAW: COURTS, POLITICS, RIGHTS
177 (2014).
74. Krista E. Wiegand, Bahrain, Qatar, and the Hawar Islands: Resolution of a Gulf Territorial
Dispute, 66 MIDDLE E.J. 79, 88 (2012).
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No. 1 2016] ISLAMIC LAW STATES AND THE AUTHORITY OF THE ICJ 225

with political tensions, economic repercussions of the enduring dispute, and

repeated, failed attempts at resolution, the parties resorted to the ICJ. In the
words of one international advocate, the Bahrain–Qatar dispute is a prime
example of disputants calling upon the ICJ as a last resort venue, precisely
75
because prior attempts at mediation had failed.
Some regional actors, especially Saudi Arabia, which preferred informal
settlement venues, expressed their dissatisfaction with Qatar’s resort to the ICJ.
Because of the instability that the dispute brought to the Gulf region, Saudi
Arabia repeatedly offered its good offices from 1976 until the final settlement at
the Court. Sheikh Khalifah bin Salman al-Khalifah, Bahrain’s cabinet chairman,
favored Saudi mediation, suggesting that “a brotherly solution was best,
76
particularly between brothers.” In 1990 during a GCC meeting, the disputants’
Foreign Ministers signed Minutes—a set of rules, according to which the
77
conflict was to be resolved. This document mandated continuation of “the
good offices of the Custodial of the Two Holy Mosques, King Ben Abdul Aziz”
of Saudi Arabia, even after the submission of the dispute to more formal
78
venues.
The ICJ’s ruling triggered compliance from both disputants, fulfilling Alter,
79
Helfer, and Madsen’s condition for narrow authority. According to Schulte,
“[t]he judgment was praised by both sides; each one considered itself as a
80 81
winner.” Both parties sent a letter of appreciation to the ICJ’s Registrar.
With clear territorial demarcation lines in place, Bahrain announced plans to
begin oil drilling and exploration in the Gulf of Bahrain and almost instantly
82
offered concessions to foreign investors. Qatar began awarding exploration
rights in the area in late 2002 to Maersk, Chevron, and Occidental, large gas and
83
energy companies with a regional foothold. The decision improved the
relations in the entire region. It is definitely too early to gauge whether the
Bahrain–Qatar decision influenced behavior of the entire Islamic audience, but
as Burgis notes, the case “sends a clear signal to Arab states in the Gulf to be
84
mindful of what agreements they enter into.”

75. Interview with Anonymous, an international lawyer who has appeared repeatedly in the ICJ’s
cases as a state advocate, in the United Kingdom (Oct. 2013).
76. Summary of World Broadcasts (Source Gulf News Agency, Manama, 19 February 1995, in
Arabic), BRITISH BROADCASTING CORP. (Feb. 21, 1995).
77. Minutes signed by the Ministers of Foreign Affairs of Bahrain, Qatar, and Saudi Arabia signed
at Doha on 25 December 1990, Bahraini formula, as discussed by BURGIS, supra note 60, at 155.
78. Id.
79. Alter, Helfer & Madsen, supra note 8, at 10.
80. SCHULTE, supra note 15, at 238.
81. Id.
82. Wiegand, supra note 74, at 89–91.
83. Id. at 91.
84. BURGIS, supra note 60, at 157–58.
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226 LAW AND CONTEMPORARY PROBLEMS [Vol. 79:209

3. The Wall Advisory Opinion

In 2004, the ICJ was asked by the UN General Assembly to give an advisory
opinion regarding the legal consequences arising from the construction of a wall
by Israel in the Occupied Palestinian Territory. The Palestinian authority
argued that the wall constituted an attempt to annex the Palestinian territory in
violation of international law. Israel maintained that the wall was a temporary
85
means to combat terrorist attacks from the West Bank. The ICJ found that the
wall violated international law in more than one way: it hindered the rights of
the Palestinian people to self-determination, violated human rights provisions,
and went directly against the prohibition of the acquisition of territory by
86
force. Israel was asked to make reparations for any damages caused by the
87
wall’s construction.
In contrast to contentious cases, advisory opinions grant considerably more
opportunities for the participation of nondisputant states as well as
international organizations. For the sake of obtaining information, the ICJ has
discretion to permit oral or written statements by any states entitled to appear
88
before the Court. Many ILS, the League of Arab States, and the Organization
of the Islamic Conference (OIC) heeded this opportunity and submitted
statements during the proceedings. Israel did not address the merits during the
89
written phase of the proceedings and did not participate in the oral phase.
The above discussion raises the question of why ILS wanted the ICJ to
weigh in on the Wall case. It further raises the issue of whether ILS’
unprecedented participation in the Court’s deliberations can tell us something
about the ICJ’s authority. The Arab–Israeli conflict, tarnished by several
violent military confrontations, remains unresolved despite numerous attempts
at peaceful resolution. It produces severe local tensions and regional
animosities between Israel and its Arab neighbors. The complexity and severity
of this conflict explain why the Arab Group at the UN cosponsored the General
Assembly resolution requesting the ICJ’s opinion. The OIC was invited to
participate in the Court hearings, because Palestine is one of the OIC’s
members. Additionally, the OIC’s Charter mandates the organization “to
coordinate efforts for the safeguarding of the Holy Places and support of the
struggle of the people of Palestine, to help them regain their rights and liberate
90
their land.” In fact, the OIC has instituted a committee charged with

85. ALJAGHOUB, supra note 9, at 193.

86. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Wall
Advisory Opinion), Advisory Opinion, 2004 I.C.J. 136, (July 9).
87. Id. at 194–95.
88. Statute of the International Court of Justice, art. 66.
89. Bekker, supra note 9, at 566.
90. The Organization of the Islamic Conference Charter included these words before the 2008
revisions. For this language from the previous charter, see BURGIS, supra note 60, at 246. For the
present charter, see Charter of the Organization of the Islamic Conference, http://www.oic-oci.org.
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91
overseeing the implementation of this Article. Similar motivations stood
92
behind the League of Arab States’ participation.
There are two possible reasons for ILS’ use of the ICJ in this situation. ILS’
strategy of engagement with the ICJ may be interpreted to indicate the
expansion of the ICJ’s authority. Saudi Arabia, for instance, participated for the
first time in ICJ legal proceedings in the Wall case. Burgis notes that Islamic
organizations “need not have given international law, and its embodiment in
the form of the ICJ, such attention . . . . However, their choice to support the
legal process suggests a commitment to legal institutions as well as a faith in
93
international legal principles.” To be sure, Islamic audiences seem to have
recognized that the ICJ is a useful venue to present their arguments. The
political situation surrounding the case, however, may suggest an alternative
explanation. It is possible that ILS’ support for the ICJ had not much to do with
the Court’s increased authority, but was instead motivated by strategic
considerations. Hurd notes that advisory opinions can constitute “as much
94
political moves as [] legal ones.” He argues that the Court’s involvement in the
Israeli–Palestinian conflict was indeed largely political; initiating advisory
proceedings at the ICJ was an effective way for some countries to continue their
protests to the Israeli wall. This view suggests that ILS used the ICJ—a resource
readily available and strongly endorsed by the international community—as
95
leverage against Israel.
The design of ILS’ submissions suggests that their governments took the ICJ
proceedings seriously. Whereas the documents submitted by the West were
relatively short, ILS’ submissions were lengthy; gave careful attention to
international law; and invoked previous ICJ decisions, the UN Charter, the
Geneva Conventions, and other relevant treaties. Many of these submissions
emphasized the legitimacy of the ICJ and highlighted the importance of the
96
Court’s deliberations. For example, the OIC’s written statement expressed
hope that the advisory opinion “[would] help produce a precise legal
characterization of all aspects of the situation and thereby facilitate
97
settlement.”
Many ILS viewed the Court’s ruling as a victory, both a political and a legal
98
one, despite its nonbinding nature. At the same time, the opinion made no

91. BURGIS, supra note 60, at 246.

92. Written Submission of the League of Arab States, Wall Advisory Opinion (Jan. 28, 2004).
93. BURGIS, supra note 60, at 246–47.
94. HURD, supra note 10, at 195.
95. See Ian Hurd, The Strategic Use of Liberal Internationalism: Libya and the UN Sanctions, 1993–
2003, 59 INT’L ORG. 495, 500 (2005).
96. BURGIS, supra note 60, at 245–47; see also Written Statement of the Kingdom of Saudi Arabia,
Wall Advisory Opinion (Jan. 30, 2004); Written Statement of the Hashemite Kingdom of Jordan, Wall
Advisory Opinion (Jan. 30, 2004); Written Statement of Malaysia (Jan. 30, 2004); Written Statement of
the League of Arab States, Wall Advisory Opinion (Jan. 28, 2004).
97. Written Statement of the Organization of the Islamic Conference, Wall Advisory Opinion at
para.1, 4 (Jan. 30, 2004).
98. Fr. Robert J. Araujo, S.J., Implementation of the ICJ Advisory Opinion Legal Consequences of
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228 LAW AND CONTEMPORARY PROBLEMS [Vol. 79:209

palpable demands on ILS; thus, they had to undertake no meaningful steps to

realize the Court’s wishes. During the General Assembly debate of the Wall
advisory opinion, Ambassador Nasser Al-Kidwa, the UN Permanent Observer
for Palestine, declared that the ICJ’s opinion was “a watershed event . . . based
99
on international law and the ideals of peace and reconciliation.” Anis F.
Kassim, a member of the Palestinian defense team at the ICJ, pointed out that
in the face of many failed resolution attempts, including diplomatic means and
power-based solutions, “[I]t is time to utilize law as set out by this decisive and
100
daring opinion.” Israel recognized that it had international obligations arising
out of the opinion but argued that the ICJ’s involvement in the issue had
101
inappropriately politicized the Court.

B. ILS’ Diplomatic Immunity Cases at the ICJ

The three cases discussed below reveal that, despite the consistency between
Islamic and international law regulating diplomatic protection, ILS are not
particularly willing to accept the ICJ’s authority. The Diplomatic and Consular
Staff in Tehran case and the Special Rapporteur advisory opinion provide
examples of how ILS resist any involvement of the Court in their disputes. The
general unwillingness to file cases and the lack of compliance in disputes that
reach The Hague indicate that the ICJ had no authority in fact over ILS
involved in these contentions. By contrast, Libya’s conduct during the
Lockerbie case may be interpreted as a strategic use of the ICJ as leverage
102
against the United States and the United Kingdom. It was precisely the
perception that the ICJ had authority that led Libya to champion legal
resolutions by the Court. The question remains, however, whether Libya’s
commitment to the ICJ was sincere, or if it simply used the ICJ’s authority to
achieve desired goals. Although diplomatic immunity law theoretically provides
a supportive environment for the ICJ to establish authority in fact among ILS,
the Court faces opposition from domestic courts and national governments.
From the cases described below, it is doubtful that the Court has achieved
extensive, or even intermediate legal authority, as defined by Alter, Helfer, and
Madsen. In fact, from this definition, the Court has no authority over these
diplomatic immunity cases. Overall, it is unclear whether in the future the ICJ
will find itself able to overcome strategic considerations shaping ILS’ attitudes
toward the Court.

the Construction of a Wall in the Occupied Palestinian Territory: Fences [Do Not] Make Good
Neighbors?, 22 B.U. INT’L L.J. 349, 350 (2004).
99. Press Release, General Assembly, General Assembly Meets in Emergency Session to Debate
World Court’s Decision on Israeli Security Barrier, UN Doc. GA/10246 (July 16, 2004).
100. Anis F. Kassim, The Advisory Opinion of the International Court of Justice on the Legal
Consequences of the Construction of a Wall in the Occupied Palestinian Territory: Significance and
Implications, 10 Y.B. ISLAMIC & MIDDLE E. L. 457, 461 (2003–2004).
101. Id.
102. Hurd, supra note 95.
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1. U.S. Diplomatic and Consular Staff in Tehran

The nexus of international law and siyar came to the surface when the ICJ
analyzed the seizure and detention of U.S. diplomats and consular staff in
Tehran. In fact, this case spurred considerable discussion about the Islamic law
of diplomacy and its relation to the 1961 Vienna Convention on Diplomatic
Relations, and the 1963 Vienna Convention on Consular Relations, both of
103
which grant diplomats immunity from arrest, detention, and prosecution. In
1979, the building of the U.S. Embassy in Tehran was attacked by several
hundred armed revolutionaries, supporters of Ayatollah Khomeini. The
aggressors proclaimed that their captives were guilty of espionage. Upon
assuming official power, Khomeini and the Revolutionary Council officially
endorsed anti-U.S. sentiments and the hostage-taking. The international
community repeatedly called for the release of the hostages. The United States
adopted many economic as well as diplomatic sanctions, including freezing
Iran’s governmental assets. Despite these measures, Iran failed to release the
104
hostages.
On November 29, 1979, the United States instituted proceedings against
Iran in the ICJ and filed a request for the indication of provisional measures.
Iran did not participate in the proceedings, claiming that the contention was “a
matter within the national sovereignty of Iran,” and that international law
105
champions the interests of powerful states. The United States, on the other
hand, had nothing to lose by involving The Hague and viewed the ICJ as a
convenient stage in the political process, “while doubting prospects for actual
106
compliance.” Resorting to the ICJ also garnered international support for the
United States and placed more pressure on Iran.
In May of 1980, the Court rendered its decision, which declared Iran’s
violation of international law and ordered release of the hostages, restoration of
the premises, and reparations to the United States. U.S. fears of noncompliance
came true. Iran finally released the hostages in January 1981, but the release
was not prompted by the ICJ’s judgment. Rather, it was prompted by the
107
Algiers Accords—a 1981 amicable resolution steered by Algeria. Iran’s
conduct conformed partially to the judgment but did not result from Iran’s push
to give effect to the ruling. Algeria proved to be an effective mediator: its trade
connections with the United States were strong, and as an ILS, it had the trust
of Iran. Although the Algerian negotiators were Sunni and Iran’s
representatives were Shia, the fact that all participants were Muslim played a
108
crucial role in Iran’s decision to settle. The head U.S. negotiator, Warren

103. See supra note 46 and accompanying text.

104. SCHULTE, supra note 15, at 166.
105. United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), Judgment, 1980 I.C.J. 3
(May 24, 1980) (citing Letter from Iraq to the ICJ (Mar. 16, 1980)).
106. SCHULTE, supra note 15, at 167; see also Jonathan Greenberg, Algerian Intervention in the
Iranian Hostage Crisis, 20 STAN. J. INT’L L. 259 (1984).
107. Id. at 171.
108. Greenberg, supra note 106, at 278.
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230 LAW AND CONTEMPORARY PROBLEMS [Vol. 79:209

Christopher, noted that “[t]he Algerians served an indispensable function

interpreting two widely disparate cultures and reasoning processes to each
109
other.” Despite the ICJ’s decision, Iran continues to occupy the U.S.
Embassy, which now serves as an Islamic cultural center with exhibitions on the
110
Islamic Revolution.
There was a wide-reaching agreement in the Islamic scholarly community
111
that Iran was in violation of international law and Islamic law. For example,
Gamal Moursi Badr declared, “What happened in Tehran was an aberration
and indeed a clear violation of Islamic law as well as conventional and
112
customary international law.” Although recognizing the convoluted nature of
the contention, Algeria, the successful mediator, condemned the embassy
113
seizure. The ICJ’s decision refers to Islamic law, pointing to Islam’s
114
contributions to the development of the principle of inviolability of diplomats.
Iran’s strategy of defying the ICJ—noncompliance with the provisional
measures and the belated release of the hostages—suggests that the Court had
no authority in fact over Iran. The ICJ had a relatively minor role in ending the
crisis, and the parties reached an agreement only when Iran’s revolutionary
115
government decided to take a less stringent stance regarding the dispute. To
other ILS, the hostage crisis impacted the power balance between the Shia and
the Sunni, weakened the Persian Gulf, increased the region’s vulnerability to
foreign intervention, and made the settlement of the Iran–Iraq war less likely.
116
ILS also feared that Iran’s actions hurt the political image of all ILS. The OIC
expressed some of these concerns in two 1980 resolutions that urged the United
States and Iran to resolve the contention amicably and appealed to Iran to
“continue to work towards the solution of the question of the hostages in the
117
spirit of Islam.” The Muslim community hoped for a peaceful settlement of
the crisis via any means and did not endow the ICJ with any special position or
authority. Before the successful Algerian mediation, other intermediaries tried
to help end the crisis. These intermediaries included UN Secretary General
Kurt Waldheim, Pope John Paul II, officials from West Germany and Turkey,
and several ILS policymakers, including Yassir Arafat and officials from Syria,
Pakistan, and Libya.

109. DAVID FARBER, TAKEN HOSTAGE (2005).

110. Jennifer Rizzo, Former U.S. Embassy in Iran: Mistrust Endures Where Hostages Held, CNN
NEWS, Jan. 30 2014, http://www.cnn.com/2014/01/30/politics/iran-embassy-mistrust/.
111. M. Cherif Bassiouni, Protection of Diplomats Under Islamic Law, in INTERNATIONAL LAW
AND ISLAMIC LAW 243 (Mashood A. Baderin ed., 2008).
112. Gamal M. Badr, A Survey of Islamic International Law, 76 AM. SOC’Y INT’L L. PROC. 56, 60
(1982).
113. SCHULTE, supra note 15, at 169–70.
114. Case Concerning United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980
I.C.J. 3, 40, para. 86 (May 24).
115. SCHULTE, supra note 15, at 171.
116. Greenberg, supra note 106, at 281.
117. Security of Muslim States and their Solidarity, OIC Resolution (May 1980).
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2. Aerial Incident at Lockerbie

In 1998, a Pan-American, New York-bound airplane crashed in Lockerbie,
Scotland. After a joint U.S.–U.K. investigation revealed that Libyan agents
were responsible for the bombing, both countries insisted on holding a legal
trial of the suspects. To ensure Libya’s cooperation, the UN Security Council
imposed the following sanctions: air travel to and from Libya was prohibited,
some Libyan assets were frozen, and many governments shrunk the size of
118
Libyan diplomatic missions. Libya refused to extradite the suspects for trial,
arguing that by investigating the agents on its own, Libya has fulfilled its
119
obligation arising from the Montreal Convention. Asserting that the sanctions
regime violated international law as well as domestic rules of procedural justice,
Libya requested international arbitration and then ICJ adjudication. According
to Libyan government, the dispute was of legal nature; thus, legal methods
120
rather than the Security Council were appropriate for the issue. In 1992 Libya
brought the case to the ICJ, asking for provisional measures to stop the United
States and the United Kingdom from coercing Libya into handing over the
121
suspects. The request was denied. On the sixth anniversary of the bombing,
Libyan leader Moammar Gadhafi, in an advertisement in The Washington Post,
122
proposed that a Scottish court conduct a trial of the suspects at the ICJ. To
add legitimacy to its stance, Libya reproduced in the advertisement a resolution
accepted by the League of Arab States supporting its proposal. Finally, in 1998,
after the sanctions regime continued to erode, the parties agreed that the
suspects would be tried in the Netherlands, at Camp Zeist, according to Scottish
law. Upon a joint request of the disputants, the Lockerbie case was removed
from the ICJ’s docket in 2003.
The Lockerbie case provides several important indications about the ICJ
authority. Libya called on the Court in a clear effort to undermine the
123
legitimacy of the Security Council and its resolutions. Libya’s two opponents,
it is interesting to note, preferred the issue not to be framed as a legal dispute.
Libyan government was aware that calling on the ICJ and championing an
international law–based solution would provide effective leverage against the
United Kingdom and the United States. This strategy paid off; the final
settlement largely reflected Libya’s preferences. Regardless of its true motives,
Libya’s persistence in suggesting a resolution by The Hague indicates that the
country perceived the Court as authoritative. Libya knew that publicly

118. Hurd, supra note 95.

119. See Convention for the Suppression of Unlawful Acts against Civil Aviation, 974 U.N.T.S. 177
(1971).
120. HURD, supra note 10.
121. Questions of Interpretation and Application of the 1971 Montreal Convention Arising from
the Aerial Incident at Lockerbie, Provisional Measures, Order of 14 April 1992, 1992 I.C.J. 114 (Apr.
14, 1992).
122. Ad., The Proposal of The Arab League to Solve the Problem of Pan-Am Flight 103, WASH.
POST, Dec. 21, 1994, at A10.
123. HURD, supra note 10.
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232 LAW AND CONTEMPORARY PROBLEMS [Vol. 79:209

juxtaposing a legal solution, the ICJ, and a more political venue, the Security
Council, would work precisely because of the ICJ’s authority. After the
incident, several other ILS violated the sanctions regime and embraced the idea
124
of a legal solution championed by Libya.

3. The Special Rapporteur of the Commission on Human Rights Advisory

Opinion
In 1998, the UN Economic and Social Council requested that the ICJ render
an advisory opinion concerning one Param Cumaraswarmy—a Malaysian
lawyer appointed as the UN Special Rapporteur on the Independence of Judges
and Lawyers of the Commission on Human Rights. The issue was whether the
125
Convention on the Privileges and Immunities of the UN applied to
Cumaraswarmy, who in 1995 gave an interview to International Commercial
Litigation, a London magazine widely circulated in Malaysia, in which he
complained about powerful corporate influence on Malaysian judicial decisions.
Several plaintiffs—recipients of these favorable rulings—sued the Special
Rapporteur in Malaysian courts for defamation. Malaysian courts refused to
uphold Cumaraswarmy’s immunity despite the UN Secretary General’s
126
assurances that the Convention did apply. After a series of unsuccessful
negotiations between the UN and Malaysia, the contention was referred to the
ICJ. The Court ruled that the Convention applied to the Special Rapporteur,
and that he was entitled to immunity from legal process for the words spoken
127
during the interview.
In terms of assessing the ICJ’s authority, Malaysia did not support the UN
Economic and Social Council’s request for advisory proceedings, arguing that
the transfer of the dispute to the ICJ “cannot change the nature of the
128
difference or alter the content of the question.” After the opinion was
rendered, the Malaysian government refused to comply, ignoring the UN’s
request to reimburse the expenses borne by the organization on behalf of
Cumaraswarmy. The ICJ ruling did not end the defamation suits in Malaysian
courts, however; the last case was dropped two years after the ICJ issued its
opinion. Senior Assistant Registrar of the High Court in Malaysia, Wan
Shaharuddin bin Wan Ladin, asserted that, as to “the issue whether the Court in

124. Id. at 516.

125. Convention of the Privileges and Immunities of the United Nations, 1946 U.N.T.S. 15, UN
Doc. A/64 (Feb. 13, 1946).
126. Peter H. F. Bekker, Difference Relating to Immunity from Legal Process of a Special
Rapporteur of the Commission on Human Rights Advisory Opinion, 93 AM. J. INT’L L. 913, 913–14
(1999).
127. Difference Relating to Immunity from Legal Process of a Special Rapporteur of the
Commission on Human Rights, Advisory Opinion, 1999 I.C.J. 62 (Apr. 29).
128. Difference Relating to Immunity from Legal Process of a Special Rapporteur of the
Commission on Human Rights, Oral Statements, I.C.J. Doc. CR 98/17, at 48, also quoted in Charles N.
Brower & Pieter H. F. Bekker, Understanding “Binding” Advisory Opinions of the International Court
of Justice, in LIBER AMICORUM JUDGE SHIGERU ODA 351, 358 (Nisuke Ando, Edward McWhinney &
Rüdiger Wolfrum, eds., 2002).
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Malaysia should follow the Advisory Opinion of the ICJ, . . . I find that the said
129
Convention is not a final and binding authority.” The High Court also decided
that the appropriate laws and facts of the Special Rapporteur case should be
determined by the Malaysian courts. The lack of cooperation from the
Malaysian judiciary shows disregard for the ICJ ruling: the opinion explicitly
130
addressed the domestic courts, highlighting their role in ensuring compliance.
Further, the lack of consequential response to the ICJ opinion by Malaysian
courts indicates that the ICJ does not even have narrow legal authority, as
captured in the Alter, Helfer, and Madsen framework.
It is important, however, to acknowledge the limits of this analysis. The
finding of “no authority” extends neither to all diplomatic immunity cases nor
to the entire Islamic audience. First, the Court’s authority in the area of
diplomatic immunity cannot be assessed solely on the basis of the three disputes
addressed in this article. The focus in this article has been on hard cases—cases
that were litigated, resulted in advisory proceedings, or at least involved the ICJ
in some form or fashion. For example, although the Lockerbie case was
eventually removed from the ICJ’s list in 2003, Libya filed for provisional
measures and pressed for the ICJ’s participation. All of these contentions are
essentially the most difficult, not random, type of case, in which the disputants
do not come to an amicable solution without help from an adjudicator. But
many disagreements do not reach The Hague. Countries frequently settle via
other means because important out-of-court effects are associated with the sole
131
presence of the ICJ as a venue for resolution. Keeping this caveat in mind, it is
possible that the ICJ has intermediate or even extensive authority in diplomatic
immunity disputes that are not litigated.
Second, the conclusion that the ICJ has no authority in diplomatic immunity
area has been reached strictly within the Alter, Helfer, and Madsen framework
of authority. They argue that narrow authority is associated with the actual
132
filing of cases to an IC and subsequent compliance. But this framework does
not account for the possibility that countries accepting the Court’s authority
133
choose not to file cases but instead settle in the shadow of the Court. As
research shows, states that recognize the ICJ’s compulsory jurisdiction—that is,
states that essentially bargain in the shadow of the Court—are less likely to
engage in militarized conflict and are more likely to form agreements resolving

129. GAIL DAVIDSON, TAMI FRIESEN & MICHAEL JACKSON, Q.C. FOR LAWYERS RIGHTS
WATCH CANADA, LAWYERS AND THE RULE OF LAW ON TRIAL: SEDITION IN MALAYSIA,
http://www.lrwc.org/ws/wp-content/uploads/2013/02/Lawyers-and-the-Rule-of-Law-on-Trial-Sedition-
in-Malaysia.pdf (citing Insas Berhad & Megapolitan Nominees Sdn. Bhd. v. Cumaraswamy, Grounds
for Judgment, Unofficial English Translation (Oct. 29, 1999)).
130. See Special Rapporteur Advisory Opinion, 1999 I.C.J. 62, 30, 31–32.
131. See Richard B. Bilder, International Dispute Settlement and the Role of International
Adjudication, in INTERNATIONAL LAW: CLASSIC AND CONTEMPORARY READINGS 233 (Charlotte Ku
& Paul F Diehl eds., 1998).
132. Alter, Helfer & Madsen, supra note 8, at 10.
133. See Bilder, supra note 131.
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234 LAW AND CONTEMPORARY PROBLEMS [Vol. 79:209

134
the disputed issues. Thus, the ICJ has important pacifying effects on countries’
behavior whether the countries file cases or not. Arguably, the Court has
authority as to these states.
The role of strategic considerations is evident across all cases analyzed in
this article, regardless of the relationship between siyar and international law.
One can argue that behavior seemingly supportive of the Court, as in the
Western Sahara and Lockerbie cases, emerged as a result of underlying strategic
manipulation. A closer look at ILS’ arguments advanced during the ICJ’s
deliberations may suggest that these states use Islamic law–based arguments in
a calculated way to achieve desired outcomes at the Court. At times, ILS
appear willing to deemphasize the issue of whether Islamic or international law
takes precedence. As one scholar observes, Islamic policymakers “will try to
justify the acceptance of international law concepts by invoking certain Islamic
135
tradition, Islamic law ideas.”
Cases analyzed in this paper may seem to debunk expectations regarding
the importance of a synergy between Islamic law and international law. But
such conclusion is not warranted beyond these specific disputes and specific
ILS. As demonstrated elsewhere, convergence between siyar and international
law shapes ILS’ attitudes toward international law and international
136
adjudicators. As such, one cannot set aside siyar as unimportant. For ILS,
sharia provides core values, but at times—especially in the most challenging
cases that end up at the ICJ—strategic and material interests may prevail over
Islamic law’s edicts. Finally, behavior of ILS parties to disputes reviewed in this
article is not always reflective of the entire Islamic audience. The Diplomatic
and Consular Staff in Tehran case is a good example of this: many ILS
disapproved of Iran’s actions.

V
CONCLUSION
This article has introduced nuance into any blanket claim about ILS and the
ICJ. There actually are a large number of ICJ cases involving ILS, which is
more than can be said for some other non-Islamic countries such as China,
Russia and the former Soviet Union, Argentina, or Poland. Islamic law
discourages adjudication and favors brotherly, less-formal means of
137
settlement. Thus, ILS are a hard case for the ICJ and are less willing to accept
IC authority in general. Alter, for example, demonstrates that the Middle East
is an exception to the regional trend of submitting to the compulsory

134. MITCHELL & POWELL, supra note 3, at 221.

135. Interview with Adnan Amkhan Bayno, Head of Chambers, MENA Chambers, in Brussels,
Belg. (July 2014).
136. See generally Powell, International Court of Justice, supra note 18; Powell, Territorial Disputes,
supra note 18.
137. Powell, International Court of Justice, supra note 18; Powell, Territorial Disputes, supra note
18.
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138
jurisdiction of ICs. It is also interesting to note that ILS are reluctant to create
even sharia-based supranational adjudicators. For instance, the Islamic
International Court of Justice, fashioned during the 5th Islamic Summit of 1987
is not yet in operation. According to Burgis, this Court will most likely “remain
little more than a dream in the minds of Arab states when seeking the
139
assistance of the ICJ.” It is also plausible that because different schools of
Islamic jurisprudence offer diverging interpretations of law, any supranational
courts have small prospects of realization.
Like several courts addressed in this symposium, the ICJ faces many
obstacles that limit its ability to build authority in fact. Some of these
constraints—especially those inherent in the Court’s design—are unlikely to
change in the future. Forum shopping, which curbs the ICJ’s ability to attract
cases, will likely increase as new adjudicative forums, such as the International
Tribunal for the Law of the Sea, strengthen. Mediation, conciliation, and
arbitration may reduce demand for the ICJ’s adjudication in some issue areas.
These less formal venues offer disputants a degree of flexibility and control
over the dispute that is unattainable at the Court.
The ICJ does not fit well into any specific cone as portrayed in figure 2 in
140
Alter, Helfer, and Madsen’s introduction to this issue. The Court does not
have extensive authority over the entire zone of its jurisdiction. In fact, it is hard
to know the full range of the ICJ’s jurisdiction ex ante. Countries that accept
the Court’s adjudicative powers deliberately shape and mold the extent to
which they agree to its jurisdiction. ILS are a vivid example of this process. It is
possible the ICJ’s influence can only ever be an “island” within a wider subject
matter jurisdiction. The ICJ’s levels of authority vary not only across issue
areas, but also across types of jurisdiction, audiences, and specific countries. In
reality the ICJ’s authority resembles Swiss cheese.
The focus on the ICJ in the context of ILS sheds light on IC authority more
generally. The Court is able to garner some authority even when there are
strong domestic counternorms that leave little space and role for the ICJ.
Islamic law’s edicts are grounded in religious beliefs and are thus hard for any
secular court to topple. Yet the Court managed to adjudicate and render
advisory opinions at the request of its Islamic audience. Nonetheless, looking to
the future, it is clear that the ICJ will continue to face challenges vis-à-vis ILS.
The ICJ judges’ typical unfamiliarity with siyar limits the Court’s ability to
expand its authority. During a 2013 meeting with the ICJ’s President, Prince
Bandar bin Salman bin Mohammed of Saudi Arabia suggested to the Court
training courses in Islamic law that are offered by the Saudi Custodian of the
141
Two Holy Mosques, should the Court be interested. This is an unquestionable
signal of Saudi apprehension toward any IC with judges either unfamiliar with

138. ALTER, supra note 73, at 197.

139. BURGIS, supra note 60, at 93.
140. Alter, Helfer & Madsen, supra note 8, at 34, fig. 2.
141. Sharif M. Taha, Need for Translating ICJ Provisions Urged, ARAB NEWS, Apr. 1, 2013.
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236 LAW AND CONTEMPORARY PROBLEMS [Vol. 79:209

sharia or reluctant to apply sharia rules in the international arena. Even if at

times ILS appear willing to fudge the issue of whether Islamic or international
law is decisive, knowledge of siyar at the level of the ICJ would increase the
Court’s ability to acquire authority.