As I will show, the Court’s Statute allows it to consider Islamic law in a number of different ways. It could use Islamic law as a source of legal norms, as a factor dictating how norms will be applied in particular circumstances, or it could use references to Islamic law as a tool of legitimation. That is to say, the Court might argue that even if international legal rules do not derive from Islamic sources, they are consistent with Islamic legal norms, and thus they bind all Muslim states. Part IV demonstrates that Islamic law is rarely referred to in ICJ judgments or in separate concurring or dissenting opinions.
The vast majority of American Muslims understand Sharia as a personal, religious obligation governing the practice of their faith, not as something American governments should enforce. Many aspects of Sharia or Islamic law are consistent with modern legal rules found in American law. For example, both legal systems allow rights to personal property, mutual consent to contracts, the presumption of innocence in criminal proceedings, and the right of women to initiate divorce proceedings. This Article asks whether ICJ opinions to date suggest that judicial consideration of Islamic legal norms has played, can play, or should play a role in the ICJ’s resolution of international legal disputes or in establishing the legitimacy of the results that it has reached.
Part V details the different ways in which those few judges who refer to Islamic law have used the Islamic legal tradition. It provides a close reading of the ICJ opinions that do refer to Islamic law, which are almost entirely separate concurring or dissenting opinions.
Except in rare cases, this does not mean there is rejection of Australian laws, but instead there is a desire to conform with Sharia law when it is possible to do so. Muslims as minorities in secular societies like Australia have been recognised as skilled “cultural navigators” (Yilmaz, 2005), able to manoeuvre through two systems of law, one of their nation and the other of their faith.
Part II gives an initial overview of the ICJ to help us understand how and why judges on the ICJ have reached the answers they have. Part II describes how the ICJ’s enabling statute permits the Court, at least in theory, to look at Islamic legal norms.