The Future of Islamic Legal Arguments inInternational Boundary DisputesBetween Islamic States

I. Introduction In 1975, the International Court of Justice (ICJ) issued an advisory opinion on the question of the "legal ties" existing between Western Sahara and Morocco and between Western Sahara and the Mauritanian entity.' In its memorials to the ICJ, Morocco advanced several arguments based on traditional Islamic legal principles and Islamic concepts of sovereignty.2 Morocco's Islamic legal arguments found their source in the traditional body and principles of Islamic international law: the Siyar.3 Specifically, Morocco argued that it had established ties of sovereignty over Western Sahara, under Islamic legal concepts of sovereignty, at the time of Spanish colonization.4 Morocco attempted to persuade the ICJ that the people of Western Sahara owed religious allegiance to the Sultan of Morocco and that this religious allegiance amounted to territorial sovereignty.5 Relying on the special character of the Sherifian State, Morocco maintained that "anyone who was a religious subject of the Sultan was ipso facto a political subject as well."6 In its advisory opinion, the ICJ noted the special character of the Sherifian State at the time of Spanish colonization of the Western Sahara.' It also recognized the religious ties between the inhabitants of Western Sahara and Morocco.8 The Court even acknowledged the allegiance of various Western Sahara tribes to the Sultan of Morocco. However it determined that such an allegiance, "if it is to afford indications of the ruler's sovereignty, must clearly be real and manifested in acts evidencing acceptance of his political authority."'o This conclusion illustrates the ICJ's adherence to the traditional Western legal concept of territorial sovereignty and its unwillingness to give real consideration to arguments based on traditional principles of Islamic international law. The ICJ's unwillingness is hardly surprising. The Siyar developed over one thousand years ago to govern the relations between the unitary Islamic State and the non-Islamic world." Also, the Siyar relies on a concept of sovereignty that is inherently personal rather than territorial.12 These two characteristics make the Siyar inapplicable in a world comprised of independent nation-states and governed by concepts of territorial rather than personal sovereignty.'3 The central importance of the Siyar in the larger body of Islamic law, however, causes an understandable reluctance among Muslim jurists to abandon the traditional Islamic legal approach to international relations.14 Apologists attempt to show common ground between some ofthe general principles found in the Siyar and the generally accepted principles of Western international law.15 This attempt at reconciliation ultimately fails for two reasons. First, the common ground it offers is not substantively and legitimately Islamic.16 Second, the general principles it offers are too ambiguous to offer any real guidance to Islamic states seeking to structure their international relations.17 This does not necessarily mean that Islamic law has no role to play in modern international relations between Islamic states. It does, however, indicate the need for a new Islamic approach to international relations that is compatible with the world of nation-states. The scope of this Note is not so ambitious as to attempt to offer a solution to all of the issues raised by the Siyar's inapplicability. Instead, this Note addresses only the specific issue of international boundary disputes between Islamic States. Part II of this Note describes the origins, sources, and principles of the traditional body of Islamic international law: the Siyar. To illustrate the inapplicability of the Siyar in modern international relations, Part III examines the traditional Islamic legal arguments in two modern boundary disputes, as well as the ICJ's reaction to those arguments.ls Finally, Part IV provides a doctrinal basis and justification for a new Islamic approach to boundary and territorial disputes between Islamic nation-states. …