Download PDF | Hassan S. Khalilieh - Islamic Law of the Sea_ Freedom of Navigation and Passage Rights in Islamic Thought-Cambridge University Press (2019).
306 Pages
Islamic Law of the Sea
The doctrine of modern law of the sea is commonly believed to have developed from Renaissance Europe. Often ignored though, is the role of Islamic law of the sea and customary practices at that time. In this book, Hassan S. Khalilieh highlights Islamic legal doctrine regarding freedom of the seas and its implementation in practice. He proves that many of the fundamental principles of the pre-modern international law governing the legal status of the high seas and the territorial sea, though originating in the Mediterranean world, are not a necessarily European creation. Beginning with the commonality of the sea in the Qur’an and legal methods employed to insure the safety, security, and freedom of movement of Muslim and aliens by land and sea, Khalilieh then goes on to examine the concepts of territorial sea and its security premises, as well as issues surrounding piracy and its legal implications as delineated in Islamic law.
Hassan S. Khalilieh is a senior lecturer in the departments of Maritime Civilizations and Multidisciplinary Studies and a senior research fellow in the Leon Recanati Institute for Maritime Studies, Leon H. Charney School of Marine Sciences at the University of Haifa. His publications include Islamic Maritime Law: An Introduction (1998) and Admiralty and Maritime Laws in the Mediterranean Sea (ca. 800-1050): The Kitab Akriyat al-Sufun and the Nomos Rhodion Nautikos (2006).
Preface
Legal historians hold that the foundations of the modern law of the sea date to the first decade of the seventeenth century, when the Dutch jurist Hugo Grotius (1583-1645) extracted chapter 12 of his De Jure Praedae (On the Law of Prize and Booty) and published it in a single treatise titled Mare Liberum (The Free Sea), which was published anonymously in 1609. To defend and justify the right of other nations to navigate the seas freely, Grotius contended that, with the exception of limited offshore zones, the seas are not susceptible to appropriation by states. Following his contention, contemporaneous European lawyers sparked a legal debate, some challenging and others concurring with his position, leading to further scholarly contribution to the law of the sea.
Both advocates and opponents of the freedom of navigation were inspired either by the Natural Law enshrined in the Justinianic Institutes and Corpus Juris Civilis, or the Hebrew Bible’s concept of sovereignty on the open sea. British legal theoretician John Selden (1584-1654) mentions both in his 1635 Mare Clausum, Sive de Dominio Maris (The Closed Sea, or the Dominion of the Sea). Astoundingly, whether deliberately or accidently, seventeenth-century European legal scholars overlooked contributions by “infidels” (non-Europeans, especially Muslims) to the evolution of the customary law of the sea, giving the impression that the Law of Nature and Nations governing access to the sea is solely a European establishment.
With the advent of Islam in the Mediterranean world in the seventh century CE, the semienclosed sea, which had been called by the Romans “mare nostrum (our sea)” for a millennium, ceased to be a Roman lake.
From that time onward, the Mediterranean Sea has continued to be shared by Christians and Muslims, and neither party could consider it to be mare nostrum; the eastern, western, and southern shores of the Mediterranean Sea were entirely under Islamic control for several centuries, as have been the Red Sea, the Persian Gulf, and vast littorals of the Indian Ocean until the penetration of the Portuguese into the eastern seas. Eventually, on the eve of the great discoveries, Muslims dominated more than half of the world’s maritime possessions.
In spite of the importance of the sea in the Qur’an (mentioned 32 times in comparison to the 13 references made to the land), in hadith literature, in theological, jurisprudential, geographical, and scientific literature, and in the daily life of Muslims throughout history, the theme that this study addresses has failed to attract attention in modern scholarship. For this and other reasons, an attempt will be made to fill the gap left by Renaissance and early modern European lawyers and to explore the Islamic contribution to the development of the customary law of the sea, relying heavily on the Islamic Law of Nature and Nations (siyar).
This study comprises three chapters, along with an introduction and a conclusion. The first chapter examines the commonality of the sea in the Qur’an, legal methods employed to insure the safety, security, and freedom of movement of Muslims and aliens by land and sea, and the historical genesis of the freedom of navigation and its legal implications for Muslim administrations and judicial authorities in the ensuing centuries. The second chapter analyzes the concept of territorial sea and its religious and security premises, describes the right of innocent passage through territorial waters and straits, and explains how legal pluralism could have positive repercussions on the legal protection of individuals and promote local, interregional, and international trade involving subjects of the same and different religious creeds.
The third and final chapter deals with piracy and its legal implications, methods employed to combat and reduce sea robbery, punishment, and its socioeconomic and cultural impacts on humankind. However, since the time frame of our discussion does not extend beyond the first decades of the sixteenth century, the topic of the Barbary corsairs remains outside the scope of this study.
This book is a revised and expanded version of my JSD dissertation submitted to the School of Law, Saint Thomas University, in Miami, Florida, written under the supervision of Professor John Makdisi, without whose sincere and careful guidance, thoughtful support, and incredible patience this study would never have seen the light. I also extend my deepest appreciation to Professor David F. Forte of ClevelandMarshall College of Law for his constructive critique and insightful comments, which helped me refine and reshape parts of this manuscript. My heartfelt gratitude and sincere reverence go to two remarkable individuals, Professor Siegfried Wiessner and Haydee Gonzalez, respectively the director and program manager at the Graduate Program in Intercultural Human Rights, Saint Thomas University, for their extraordinary support and encouragement. I also express my sincere gratitude and appreciation to my masters’ advisors at Tulane University Law School, Professors Robert Force and Martin Davies, who introduced me to the realm of modern admiralty and maritime law. The Admiralty and Maritime Law Program deeply enriched my legal knowledge and provided me with the academic tools for thoroughly analyzing early and classical jurisprudential literature and international treaties from a wide legal perspective. My sincere appreciation also goes to Professor David Abulafia at Cambridge University and Professor Michael Lobban at the London School of Economics and Political Science for their helpful and invaluable comments on the original draft of the manuscript. I am obliged to express my indebtedness and sincere thanks to the anonymous reviewers, whose thorough reading, insightful observations, and constructive criticism have only strengthened my manuscript. My special thanks go to Professor Chase Robinson, General Editor of the Cambridge Studies in Islamic Civilization, to all the Editorial Board, and to Maria Marsh, Commissioning Editor, Natasha Whelan, Content Manager, Jayavel Radhakrishnan, Senior Project Manager, Integra Software Services, and the publication staff for their efforts to publish this book. I am additionally grateful to Professor Francois Gipouloux at CNRS, France, and to Dr. Mahmood Kooria and Dr. Sanne Ravensbergen at Leiden University in the Netherlands for inviting me to participate in conferences on trade and law in the Indian Ocean; all of their presentations and discussions shaped my thinking and honed my arguments. My deep sense of gratitude goes to Dr. Helene Furani, Dr. Christina Morris and Cheryl Hutty for their diligent copy-editing and constructive criticism of the manuscript. Warm words of gratitude go to my cousins Doha and Ishraq Khalilieh and to my sincere friends Dirar Bdaiwi and Amer Karkabi for always succeeding in making me feel special. My sincere thanks are also due to the University of Haifa’s Research Authority for its cordial assistance and generous financial aid. I am now and will always be indebted to my former advisors and mentors: Professor Michal Artzy at the University of Haifa, and Professors Abraham Udovitch, Mark Cohen, and William Jordan at Princeton University. Last, but not least, my affectionate gratitude and deep indebtedness are due to my wife Ranin and to our children, Samuel, Mariam, and Awaise, for their understanding, commitment, and emotional support throughout my six-year journey of researching, organizing, and writing this book.
Introduction
GENERAL
The year 1492 signaled a fundamental turning point in global and, more particularly, maritime history. It marked the expulsion of the Nasrid dynasty (636-898 AH/1238-1492 CE) from Granada, the last Islamic stronghold in Spain, and the beginning of the great age of Christian maritime discoveries across the two shores of the Atlantic and Indian oceans. On August 3, 1492, Christopher Columbus embarked on a westward voyage to the Indian Ocean in search of alternative maritime routes that would circumvent traditional trade passages through Islamic territories to the Spice Islands. On a similar mission, the Portuguese navigator and explorer Vasco da Gama set sail from Lisbon on July 8, 1497, leading a flotilla of four fully equipped vessels; although, instead of following the steps of Columbus, da Gama sailed southward and circumnavigated Africa. After a lengthy journey with various stops in trading centres on African coasts, da Gama landed at Malindi, Kenya, on April 15, 1498; there he managed to secure a well-versed Arab mu ‘allim, who guided the Portuguese fleet across the Arabian Sea, finally arriving in Kappadu (Kappad), near Calicut,' on May 20, 1498.7
The Portuguese circumnavigation of Africa and penetration of the Indian Ocean also marked a new chapter in maritime legal history. Contrary to the westward explorations, which revealed to the Spaniards hitherto unknown pre-Columbian cultures, da Gama introduced a new maritime passage to the western European nations, which led to the already known sources of spices and other luxurious commodities from Southeast Asia that previously had made their way to the West solely through the Muslim world. The Portuguese incursion into the Indian Ocean, followed by similar intrusions of other European sea powers, undermined the Muslim-run maritime trading system, disturbed the flow of spices from Calicut to the Red Sea, and produced new forms of naval strategies and powers.* Commanded by the viceroy Dom Francisco de Almeida, the Portuguese naval fleet surprised its Egyptian-Ottoman rival and defeated it in Diu on February 3, 1509;° this engagement is regarded as one of the most decisive naval battles in the maritime and legal history of the Indian Ocean.°
The Portuguese penetration into the Indian Ocean ended the system of peaceful oceanic navigation that had been such a notable feature of that arena. Prior to this incursion, merchants at sea feared only pirates and natural hazards. Now, however, they were subject also to the threat of these new intruders, who imported the eastern Atlantic and Mediterranean models of trade and warfare and ended freedom of navigation in the eastern hemisphere. The Portuguese encroachment altered certain of the existing networking systems of maritime trade, as attested to by Sheikh Zayn al-Din al-Ma‘bari al-Malibari in 993/ 1583:
Now it should be known, that after the Franks had established themselves in Cochin and Cannanore (Kannur) and had settled in those towns, the inhabitants, with all their dependents, became subject to these foreigners, engaged in all the arts of navigation, and in maritime employments, making voyages of trade under the protection of passes from the Franks; every vessel, however small, being provided with a distinct pass, and this with a view to the general security of all. And upon each of these passes a certain fee was fixed, on the payment of which the pass was delivered to the master of the vessel, when about to proceed on his voyage. Now the Franks, in imposing this toll, caused it to appear that it would prove in its consequences a source of advantage to these people, thus to induce them to submit to it; whilst to enforce its payment, if they fell in with any vessel, in which this their letter of marquee, or pass, was not to be found, they would invariably make a seizure both of the ship, its crew, and its cargo.’
Sanctioned by Alexander VI’s papal bull Inter Caetera Divinae (May 4, 1493),® the Portuguese tried to enforce a royal monopoly on trade in the East Indies by patrolling the ocean from strategic points in Hormuz, Goa, Ceylon, and Malacca, and assuming sovereignty over major trunk routes; ships navigating the main shipping lanes between the Indonesian archipelago and the Persian Gulf were required to obtain cartazes.’
The Portuguese monopoly not only affected the indigenous peoples and foreigners, both Muslims and non-Muslims, but it also aimed to deprive the newly arrived European Christian merchants from other states of the highly profitable Southeast Asian trade.'°
The late fifteenth-century papal bull, as mentioned, which partitioned the new world between the Spaniards and the Portuguese, also denied other European nations rights of navigation and access to the newly discovered territories and maritime routes in the Atlantic and Indian oceans. In defence of the seizure of the Portuguese cargo vessel Santa Catarina on February 25, 1603, by three ships of the Dutch East India Company (Vereenigde Oostindische Compagnie, VOC) in the Singapore Strait,'' and in response to the unjustified maritime claims of Spain and Portugal, the Dutch lawyer and humanist Hugo Grotius (1583-1645) wrote the De Jure Praedae (On the Law of Prize and Booty), wherein Chapter 12 deals with the freedom of the seas (Mare Liberum/The Free Sea).'* Relying heavily on the Justinianic Institutes and Corpus Juris Civilis, from which he derived his legal references, '* Grotius argued: (a) since the seas are open to all nations by command of the Law of Nations, the Portuguese have no valid title to confine access to the East Indies to themselves;'* (b) the seas are not subject to appropriation by persons or states but are available to everyone for navigation, and therefore neither Portugal nor other nations can have exclusive rights of navigation whether through seizure, papal grant, prescription, or custom;'* (c) non-Christians (“infidels” as termed by the author) cannot be divested of public or private rights of ownership merely because they are infidels, whether on grounds of discovery, papal grant, or war;'® and (d) no people can acquire a monopoly on commerce with any overseas country.’’ Following Grotius’s contention, contemporaneous European lawyers sparked a legal debate, some challenging and others concurring with his position, leading to further scholarly contribution to the law of the sea. Both advocates and opponents of the freedom of navigation were inspired either by the natural law enshrined in the Justinianic Institutes and Corpus Juris Civilis, or the Hebrew Bible’s concept of sovereignty on the open sea. British legal theoretician John Selden mentions both in his 1635 Mare Clausum, Sive de Dominio Maris (The Closed Sea, or the Dominion of the Sea).'® As mentioned earlier, freedom of navigation in the Indian Ocean was common practice until the arrival of the Portuguese in the eastern maritime arena. By the beginning of the seventeenth century and the appearance of the Dutch East India Company the concepts of mare liberum and freedom of commerce between littoral countries along the Indian Ocean were no longer confined to locals and Asians. The ocean, which was common to the peoples of Southeast Asia and the Near East, was now shared with the European naval powers, so that in 1615, the Makassarese sultan ‘Alauddin Tumenanga ri Gaukanna (1002-1049/1593-1639) asked the Dutch East India Company not to interfere with the ships of the Makassarese Kingdom of Goa on the high seas, declaring, “God made the earth and the sea, has divided the earth among mankind and given the sea in common. It is a thing unheard of that anyone should be forbidden to sail the seas.”!? By this statement, the sultan acknowledged that in contrast to land, Islamic law considers the boundless sea to be the common heritage of mankind. No governing authority or nation could either claim proprietorship over it, or exclusive right of navigation; however, he did not elaborate on how the Islamic Law of Nature entitles human beings to share the sea and enjoy equal rights of exploration and exploitation of its natural resources. It may be assumed that the sultan was referring to the traditional freedom of navigation which had existed in the Indian Ocean on the eve of the European colonial era. Before the appearance of the European navies in the sixteenth century, the polities around the Indian Ocean had enjoyed the natural right to conduct maritime trade and navigate the vast ocean without molestation.
HUMAN RIGHTS AND THE ISLAMIC CUSTOMARY LAW OF THE SEA
Numerous studies have been written on human rights and freedom in Islamic law, few of which have touched on the issue of legal rights and the obligations of shipowners, crews, shippers, and passengers at sea with special reference to private commercial laws.*° The issue of human rights is best and most succinctly addressed by the fourth Shiite imam and Prophet’s great-grandson Zayn al-‘Abidin ‘Ali ibn al-Husayn ibn ‘Ali ibn Aba Talib (38-95/659-713) in his Treatise of Rights (Risdlat al-Huqiiq).*' Canonically, Islam does not draw a distinction between rights and obligations on land and at sea, but places them on an equal footing.2” Human rights, as prescribed by law, are classified into three major categories: the rights of God, the rights of the individual toward himself (al-nafs), and the rights of humans or individuals ( ‘ibdd); each of the three is further divided into subcategories.
Of interest are the rights of individuals and the community at large that define the relationship between individuals of the same or different religions and nationalities inter se, and those that define the relationship between the individual and the community and state. Among these rights ‘Ali ibn al-Husayn counts the rights of superiors,” rights of dependents,”* rights of relatives,”> rights based on personal relationships,*° and most importantly as far as this study is concerned, rights based on financial, judicial, and social relationships; these latter rights cover, among other things, topics associated with the rights of partners, associates, creditors, wealth, claimants, and defendants.7”
Human rights laws cannot be separated from the customary law of the sea because the two overlap in many ways. One may consider, for instance, the right to life. Since time immemorial, rendering assistance to persons or ships in distress or danger on the high seas or in the territorial sea of a coastal state has been accepted as a common humanitarian norm. Providing assistance to ill-fated individuals at sea is considered by Islamic law to be a moral duty and a religious obligation; the law commands Muslims to render assistance insofar as the rescuers do not compromise their own safety.*® The rights of individuals apply to the personal safety of Muslims and non-Muslims in the Abode of Islam and foreign territories, as they do to foreigners on Islamic soil. Every person is guaranteed safety and protection against physical harm to him and to his property, whether at sea or on land; any person violating these rights is subject to punishment.’ In the event of robbery or piracy, for instance, jurists hold conflicting opinions with respect to the punishment of a bandit or a pirate who repents prior to being captured. One opinion rules that the rights of God and individuals are forgiven; another states that God’s rights are forgiven, as are private rights, unless the act involves injury or death, and a third holds that Divine punishments are forgiven, while private rights pertaining to property, injury, or death are not. According to all opinions, compensation must be paid for the damages incurred by the victim.°° The state normally carries out the punishment against the offender, irrespective of his creed or nationality.°"
Other key issues that link the individual, community, and state to the customary law of the sea are the right to justice and equality in justice. Since the standards of justice in the Qur’an transcend racial, religious, social, and economic considerations, Muslims are commanded to be just at all levels. A Muslim acts more virtuously when he does justice to a party whom he disfavors,*? or to non-Muslims, as pointed out in Qur’an 60:8. Here the Qur’4n commands Muslims to deal kindly and equitably with the unbelievers, since this is an inherent right of all human beings under God’s law. Notably, as shall be comprehensively explained in Chapter 2, the Qur’an calls for preservation of the earlier revelations and advises Muslims strongly not to intervene in the judicial affairs of the People of the Book (Ab/ al-Kitab), but to grant them legal autonomy to administer justice and to execute judgment pursuant to their own law.**
One way to promote trade, improve diplomatic relations with foreign countries, enhance cultural exchange and, most importantly, propagate religion is through the free movement of peoples.** Free movement of merchants can enhance trade, create wealth among nations, and improve the living standards of citizens. It is the natural right of human beings to travel within and beyond their countries according to their free will when seeking knowledge, earning a livelihood, or achieving other things.°° Qur’an 67:15 rules regarding the freedom of travel that: “It is He Who has made the earth manageable for you, so traverse ye through its tracts and enjoy of the Sustenance which He furnishes: but, unto Him is the Resurrection (4!5 435} Ge (gi58 Sts 3 15d.ald Yoli Sau és Nees gil 5S 598i1). ” Islamic law mandates that women, who are forbidden to travel alone, always be accompanied by husbands or unmarriageable male kin (mabarim).°’ Additionally, people are strongly advised not to set off if they might be faced by danger.*®
It is generally recognized by the Law of Nature and the Law of Nations that individuals, communities, and nations have an inherent right to navigate the seas freely and to take advantage of their natural resources. These rights are perhaps best stated in Qur’an 16:14: “It is He Who has made the sea subject, that ye may eat thereof flesh that is fresh and tender, and that ye may extract therefrom ornaments to wear; and thou seest the ships therein that plough the waves, that ye may seek (thus) of the bounty of God and that ye may be grateful (4d (ale abe 193 S255 Gb lids aio isists Sel soe 4 oil 555 93888 @Slals Abas yo MRE 5 ud 55150 CLAN 6555 igcal5).” With the exception of a limited offshore zone, the high seas and associated assets are among the greatest bounties that God has bestowed on human beings; individuals and nations have the right to use and benefit from them, but that right is not exclusive. Neither the high seas nor their natural resources are subject to dominion and appropriation by one nation or another.*’ Indeed, from the dawn of ancient civilization to the present day, the practices and customary law of the sea, together with Islamic law, are not only about the utilization of the natural resources of the seas and oceans, but also about an individual’s rights and liberty to freely navigate and exploit these resources.
CUSTOM AS A SOURCE OF ISLAMIC LAW
Islamic expansion into the former Byzantine and Sassanid territories was not destructive, and so the administrative systems and cultural norms existing in the territories taken over by Muslims were sustained. The early caliphate succeeded by the Umayyad dynasty preserved the governmental system prevailing in the former Byzantine territories along the Mediterranean, and also the Persian administrative counterpart in the eastern provinces of the Islamic Empire. Without the retention of the existing legal, financial, and administrative institutions and practices of the conquered territories, one may surmise that Muslim dominion over a vast, diverse ethnocultural and geographical space would not have survived for such a long period of time.*° The natural inclination of the peoples who came under Islamic authority or adopted the most recent Divine monotheistic faith, was to maintain the status quo, in their legal relationships, customary practices, and long-standing traditions, and this was merely confirmed and strengthened by the rigidity of Shari ‘ah provisions.
Islamic maritime achievements in the Mediterranean Sea and the Near Eastern seas did not change the material culture of the occupied countries abruptly: instead, there was cultural continuity in various aspects of life for centuries, in spite of the gradual processes of Islamization and Arabization. The non-Muslim subject populations retained their traditional legal institutions, including ecclesiastical and _ rabbinical tribunals,** whereas the jurisdiction of the qadi extended to Muslims and civil cases involving Muslims and non-Muslims. Until the turn of the eighth century, Umayyad qadis gave judgments according to their own discretion (ra’y), basing them on Qur’anic regulations, Prophetic traditions, and customary practices that did not contradict Islamic principles.*?
With the Islamic expansion in the Mediterranean world and Asia from the seventh century onward came the gradual process of mutual acculturation, by which Muslims absorbed and accommodated to themselves local customs that became an inseparable part of social and legal norms.
Both Muslim legal and ruling authorities not only retained pre-Islamic customs and traditions, but also adapted and Islamicized laws and customs so long as they were in conformity with the Qur’an and Sunna.*° This may explain why jurists and judges often consulted, in the course of resolving specific legal cases, general custom (‘urf ‘dmm), specific custom (‘urf khdass), jurists’ custom (‘urf al-fugqaha’), artisans’ custom ( ‘urf alsunnd‘), merchants’ custom (‘urf al-tujjar), etc.*°
The influence of custom is tangible in Islamic maritime law. In the introductory chapter of Kitab Akriyat al-Sufun (The Treatise on the Leasing of Ships), the author Muhammad ibn ‘Umar al-Kinani alAndalusi al-Iskandarani (d. 310/923) emphasized the role of local custom and practices in the conclusion of commercial contracts.*” The jurist went further by claiming that custom could replace and even supersede an explicit stipulation.** Citing the prominent North African jurist Sahnin ibn Sa‘id al-Tantkhi (160-—240/776-854), the author of the treatise added that “if hiring arrangements are to be admitted solely on the basis of analogy (qgiyds), most will be invalidated [only recourse to custom makes them licit].”*? Accordingly, in the absence of a written contract and explicit stipulations, jurists and judges would normally resort to local custom.°°
The process of the reception and assimilation of foreign laws, especially Byzantine and Persian laws, is discernible in the realm of Islamic siyar (Law of Nations). Early authors of siyar literature not only recognized custom as a source of law but also endorsed it as a decisive authority so long as it did not contradict or override the nass.°' In order to validate custom and make it legally binding, jurists ruled that custom must be: (a) sensible and consistent with the Shari‘ah; (b) implicitly or expressly accepted by the Islamic State; (c) dominantly and frequently practiced in interstate relations; and (d) in use before or at the time of the conclusion of an international treaty.°* To a great degree, the siyar share similarities with the Roman jus gentium, which regulated relations between Roman citizens and foreigners, with a cardinal difference in that the former addressed legal issues between the ummah and non-Islamic states, as shall be elaborated in due course.*?
PURPOSE, STRUCTURE, AND METHODOLOGY OF THE STUDY
Grotius’s reliance on Romano-Byzantine legal codices leaves the impression that the Law of Nature and Law of Nations governing access to the sea are a European establishment. He advertently or inadvertently tended to overlook the contribution of the “infidels,”** as he called the non-Christian nations and societies, to the development of the customary law of the sea despite his awareness of the long tradition of freedom of navigation that had existed in the Islamic Mediterranean as well as in the Indian Ocean, prior to the intrusion of the European naval powers.°° In response to the widely accepted legal theory that the doctrine of the freedom of the seas was initiated and promoted by early modern European lawyers, this study aims primarily to achieve an understanding of the theoretical and practical concepts of the Islamic customary law of the sea that are absent not only from the writings of the influential Dutch humanist but also from premodern and contemporary Western legal literature.
In order to eliminate any possible confusion on the part of the reader, this study will deal solely with the Islamic concept of the “law of the sea,” as opposed to the concept of “maritime law.”°° Despite the fact that the two terms may appear similar to non-experts, they are actually two distinct fields of law with substantially different connotations. This study investigates exclusively the doctrine of the commonality of the seas and freedom of navigation and right of mobility as established by the Islamic Law of Nature and the siyar. Gaining a comprehensive understanding of the way that Islamic tradition perceives the high sea and offshore marine spaces, both in theory and practice, requires us to address several key issues: first and foremost, how does the Qur’an view the legal status of the sea? Did naval supremacy and military expansion empower or entitle a state to claim dominion over the sea? How did the Prophet Muhammad contribute to the foundations of the Islamic tradition and customary law of the sea despite the fact that he never experienced the sea?
Under Islamic law, did vessels enjoy legal immunity while at sea, in ports, or on navigable rivers? What legal measures were employed to protect aliens in the Abode of Islam and at sea, or Muslim subjects in foreign countries? Why does the Shari ‘ah favor legal pluralism as opposed to a unified judicial system? How did legal pluralism have a significant impact on the exercise of the right to freedom of the seas, ultimately promoting commercial activities? What were the circumstances in which a coastal state could claim jurisdiction over waters adjoining its shoreline? Was that claim exclusive? Did the coastal self-ruling or independent entity have a right to deny access or bar foreign vessels from sailing through its territorial sea? If a ship was exposed to man-made or natural dangers, was she granted permission to seek refuge? What were the legal and practical means employed by authorities to fight, suppress, and even eradicate piracy? What was more meritorious, fighting piracy or launching a war against enemies, and why?
Our study does not seek to survey and address Islamic maritime heritage in the western and eastern hemispheres, a subject which has received a fair amount of attention from contemporary scholars.°’ Rather, its aim is twofold. Its primary purpose, as already stated, is to highlight the Islamic legal doctrine regarding freedom of the seas and its implementation in practice, and to divulge how the rights of individuals are protected within and beyond the maritime boundaries and territorial jurisdiction of the state. The second objective is to prove that many of the fundamental principles of the premodern international law governing the legal status of the high seas and the territorial waters originated in the Mediterranean world, though they are not a necessarily European creation. The fading away of the Byzantine maritime hegemony, the Islamic military expansions along the eastern, southern, and western shores of the Mediterranean, and the Christian—Islamic naval rivalries over the Middle Sea, particularly from the second half of the eleventh century onward, undoubtedly gave rise to the introduction of unprecedented legal norms and rules governing the law of the sea.
This work comprises three chapters, with an introduction and a conclusion. Chapter 1 treats the commonality of the sea in the Qur’an, the genesis of the freedom of navigation, and the immunity of civilian subjects of the Abode of Islam, neutral countries, the Abode of Covenant, and the Abode of War on land and at sea. In addition, it examines the flag state’s jurisdiction over national ships, their contents, crew, and passengers. Chapter 2 analyzes the Islamic concept of the territorial sea, its seaward breadth, and the state’s sovereignty over offshore zones adjoining the coastal frontiers, with an emphasis on the exclusive jurisdiction over that part of the Red Sea stretching along the coast of the Hijaz (also Hijaz/Hejaz).
The chapter describes the regime of passage through international straits, which as in the past plays a vital role today in global trade networks; in addition, the chapter investigates the judicial system in Islam and expounds the reasons why the Qur’an and judicial authorities favor legal pluralism as opposed to a single unified legal system, and the way that the legal theory has been translated into practice. Piracy and its legal, financial, and social implications are treated in Chapter 3; the discussion revolves around the factors fostering piracy and the methods employed to combat and reduce sea robbery.
Methodologically, coping with the foregoing themes cannot be achieved unless disciplinary boundaries are transcended through an interdisciplinary approach. The primary source upon which this study is based comes from the Shari ‘ah, which is composed primarily of the Qur’an and the Prophetic Sunna. Even though the Qur’adn constitutes the cornerstone and foundation of Islamic legislation it should not be approached solely as a book of law,°® since the majority of it focuses on human moral values and ethics.°? With regard to the subject matter of this study, however, the Qur’anic verses analyzed are confined exclusively to the topic of the commonality of the sea highlighting principles of natural and universal laws.°°
The Qur’adnic verses will be quoted in the original Arabic, accompanied by an English translation,°! in order to maintain their true meaning and avoid depriving the reader of the Divine spirit of the original text. Word-for-word translations of the Qur’an have traditionally been rejected by Muslim theologians and intellectuals from the eighth century to the present day, the argument being that: (a) the translations could result in a semantic change and therefore ruin the intended meaning; (b) no matter how precise the translation, it can never produce a second original, either in form or in content; (c) the translator’s scholarly background of Islamic theology and tradition and linguistic skills in both Arabic and English may directly affect the quality of the translation; a translator who lacks the necessary academic background may utterly change the meaning of the verse and provide a totally different translations when the verse itself is very clear; and (d) inaccuracies may occur due to the translator’s sectarian and personal biases or sociopolitical interests.°” All these and other reasons make the English translation interpretive rather than an equivalent text of the original Arabic. As a consequence, the Qur'an repeatedly asserts any it was revealed to the “Seal of the Prophets (G25 ailS)”° “in the perspicuous Arabic tongue (ous fey glk). eS
As a supplement to the Qur’an, the Sunna of the Prophet constitutes the second fundamental and indispensable source of Islamic law.
Many Qur’anic verses explicitly equate obedience to God with obedience to His Messenger and command all Muslims to hold tight to his tradition and heritage.°° Most relevant to our study are specific documents and treaties suggested to have been issued by the Prophet, specifically the 9 AH/630 CE guarantee of protection, which the Prophet granted to Yuhanna ibn Ru’ba, the Patriarch and governor of the port city of Aylah (present-day ‘Aqabah). All of the recorded diplomatic treaties, truces, correspondences, and safe-conducts formulated and endorsed by the Prophet reflect his actual attitude and conduct (Sira),°’ served as the model and basis for later Islamic siyar, and were accepted as a customary practice for over a millennium.
The vast majority, if not all, of the international treaties concluded in the post-Prophetic era between Muslim central and peripheral authorities on the one hand, and foreign empires, states, and self-ruling entities on the other, seem to have followed the same legal pattern and format introduced by the Prophetic Sira.°* Historically, being part of Islamic law, the siyar was contemporaneously pioneered by early jurists prior to the formation of the madhahib, namely, by Abi ‘Amr ‘Amir ibn Sharahil al-Sha‘bi (21-103/641-721), Abt Hanifa alNu‘man ibn Thabit (80-150/699-767), Ibn Ishaq (85-151/704-768), ‘Abd al-Rahman al-Awza‘i (88-157/707-774), Sufyan al-Thawri (97-161/716-778), Aba Ishaq al-Fazari (d. 186/802), Wadqidi (130-207/747-822), Muhammad ibn al-Hasan al-Shaybani (131-189/749-805), and Ibn Hisham (d. 218/833).°? The topics covered by the siyar are best summarized by Muhammad ibn Ahmad al-Sarakhsi (d. 490/1096) as follows:
Know that the word siyar is the plural form of sira(h). (Imam Muhammad alShaybani) has designated this chapter by it since it describes the behavior 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 either as Resident Aliens or as non-Muslim Subjects; in dealing with Apostates who are the worst of 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.”°
Islamic law covers all areas of human conduct, rules of ritual purification, and rules governing interhuman relations and dealings (mu ‘dmaldat). What matters for this study are two themes that neither the Qur’an nor the recorded Sunna has treated in straightforward manner: the division of the world, and the sovereign and jurisdictional rights over the Arabian side of the Red Sea, specifically the offshore marine zone adjacent to the Hijaz. Furthermore, the use of early and classical jurisprudential manuals can shed light on the conduct of war, enemy alien merchants and travelers in the Abode of Islam and at sea, the judicial autonomy of non-Muslims and foreigners in Islamic territories, and issues related to piracy.
Surviving international diplomatic and commercial treaties that have come down to us from the pre-Ottoman Mediterranean world contain the most significant legal details and historical facts regarding the legal status of persons, merchant vessels, and property on the high seas, territorial seas, and inland waters.
The vast bulk of the Islamic—Christian international treaties cited or quoted in this study deal with the maintenance of peace and security between the contracting parties, the promotion and facilitation of trade, freedom of navigation, protection of persons, vessels, and properties at sea and in inland waters, the suppression and deterrence of piracy, and above all, the implementation of reciprocal interests and mutual respect for state sovereignty and territorial integrity. Moreover, a thorough scrutiny of these treaties enables us to learn how classical Islam and medieval Europe theorized the concept of the territorial sea and whether sovereignty over a limited marine zone contiguous to the coastal frontier was awarded international recognition. Familiarity with these sources will contribute significantly to our understanding of how the sea is conceived in the Islamic Law of Nature and the Law of Nations.
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