Islamic Law and the Iran-United States Claims Tribunal: The Primacy of International Law over Municipal Law

Abstract

THE PROPHET Muhammad acted as arbitrator for the Muslims in the beginning of Islam.1 The Prophet also recognized arbitration by appointing an arbitrator, accepting that arbitrator's decision, and counselling a tribe to use arbitration to resolve a dispute.2 The Qur'an expressly addresses arbitration with regard to family matters, and requires that Muslims use arbitration to resolve such disputes.3 The Rashidin Caliphs who immediately succeeded the Prophet in leading the Muslims applied these arbitration principles to disputes arising out of commercial transactions.4 Many leading Islamic scholars have promoted arbitration in similar matters over the centuries.5 Today, most, if not all Middle Eastern countries have legislation favourable to arbitration in resolving international trade disputes.6 Despite this long history and doctrinal nexus between Islam and arbitration, many contemporary Muslims are wary of international arbitration.7 One potential reason for this scepticism is the disastrous application of international arbitration to the political dispute that split the Islamic world into Sunni and Shi'ite.8 The perceived reluctance of tribunals to rely on Islamic law, or Shari'a, is another.9 Critics who subscribe to this latter reasoning demand greater incorporation of Islamic law into arbitration proceedings.10 This Note responds to these demands by analysing the ways in which the Iran-United States Claims Tribunal (‘the Tribunal’) relies on Islamic law, and by exploring the limitations upon the Tribunal, and other tribunals, in relying on Islamic law to a greater extent.11 This Note is divided into four sections. Section I describes each instance where the Tribunal explicitly mentions Islamic law in a decision or dissenting opinion. Section II draws parallels between Islamic and Tribunal jurisprudence. Section III explains how several Islamic countries have constitutionalized Islamic law, thus making it their municipal law.12 It is this constitutionalization that hinders greater …