Pacta Sunt Servanda: Islamic Perception

• Author: Md Anowar Zahid; Rohimi Shapiee
• Position: Senior Lecturer, Faculty of Law at Universiti Kebangsaan Malaysia (National university of Malaysia) / Professor, Faculty of Law at Universiti Kebangsaan Malaysia (National university of Malaysia)
• Pages: 375-385

Md Anowar Zahid. Senior Lecturer, Faculty of Law at Universiti Kebangsaan Malaysia (National university of Malaysia). LL.B.(Hon. Dhaka), LL.M.(Dalhousie), Ph.D.(Manchester). The author may be contacted at: dr.anowar.zahid@gmail.com / Address: Faculty of Law, National University of Malaysia, UKM Bangi 43600, Selangor Darul Ehsan, Malaysia.

Rohimi Shapiee. Professor, Faculty of Law at Universiti Kebangsaan Malaysia (National university of Malaysia). LL.B (Hon. Malaya), LL.M (Monash), Ph.D. (Manchester). The author may be contacted at: rohimi_s@hotmail.com / Address: Faculty of Law, National University of Malaysia, UKM Bangi 43600, Selangor Darul Ehsan, Malaysia.

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1. Prologue

The principle of reciprocity is the very backbone of both Siyar and international law. It posits that unilateral acts by any State cannot create a law for another State unless the other State willingly agrees to it either explicitly or implicitly. The reason behind this is that States are sovereign entities which are not subject to any mundane superstate authority.¹ International treaties are an example of express agreement between StatesPage 376 and international customs are typically an example of their implicit agreement. Both treaties and customs are two important sources of Siyar and international law with one fundamental difference that for Siyar these two sources must be friendly with Shari’ah fountain sources such as the Qur’ an and Sunnah. International law is, however, not bound by this qualification because of its secular character. However, it is an interesting question to ask: why should the States obey laws made by treaty or custom? The answer is - because States have agreed to make them. In other words, agreements must be obeyed, which is well-known in Latin terms as pacta sunt servanda. (Popularly known as the pacta doctrine). Though theoretically relevant to both treaties and customs, in practice this doctrine is called into application with respect to treaties.

Over time the pacta doctrine attained the status of an international customary law principle. In the present world it has become a peremptory principle of treaty law, especially by its entrenchment into the Vienna Convention on the Law of Treaties²- “every treaty in force is binding upon the parties to it and must be performed in good faith.”³ According to this provision, not only States, also other subjects of international law like multinational companies, which are parties to a treaty or an agreement, must obey it. All jurisdictions of the world have accepted this doctrine because without giving effect to it, treaty obligations cannot be enforced. In the international community, State parties themselves are the chief enforcers of their own responsibility. Why? As said above, because they have bound themselves by giving their consent or promise to the agreement. But a further question may arise- should all promises be kept? The answer depends on what conception of ‘promise’or ‘agreement’is held. According to common law, all promises (pacta) are not to be kept; only promises that create legal obligations should be kept.⁴ A Civil law system would typically believe that all promises must be kept for social good.⁵ What does Islamic law say in this respect? This paper is an attempt to answer this question. This answer is being sought to find a way and means to check the violations of treaties, such as bilateral investment agreements (“BITs”). In the contemporary world BIT violation is ever on rise. In a span of 37 years (1972-2009) there have been 299 disputes filed with the International Centre for the Settlement of Investment Disputes (“ICSID”), an arbitral facility affiliated with the World Bank.⁶ Of them, 238 have been registered in the last ten years (1999-2009). As ofPage 377 November 2009, 180 have been settled and 119 are still pending.⁷ Checking treaty violations requires the pacta doctrine to be taken seriously, which is in turn, a conceptual issue in need of being addressed.

2. Meaning of Pacta Sunt Servanda in Shari’a

Surah (Chapter) al-Ma’ idah of the Qur’ an used the word ‘ ’aqd’ for contract.⁸ Islamic jurists have given various opinions about the scope of the term. Of them Imam Raghib al-Isfahani’s opinion seems to be convincing. According to him, ’aqd includes all kinds of contracts, which he classified as follows: First, Covenant with Allaah to believe in Him, to obey His commands in the way of His prophet. Second, the vow or promise or commitment one takes upon himself or herself. Last, the contract that is made between two persons or two groups or parties or governments.⁹ As such all sorts of contracts Muslim individuals, entities and States are required to fulfill as the Qur’ an commands them to fulfill their contracts in the following words: “O those who believe, fulfill the contracts.”¹⁰

This is an obligatory command from Allaah, the Lord of the whole universe. This is the very first verse of Surah Ma’idah, which was revealed towards the end of the life of Prophet Muhammad (peace be upon him). About this Surah (and so about the above verse) the Prophet is reported to have said, “Surah Ma’idah is from what has been revealed towards the last stage of the revelation of the Qur’ an. So, take what has been made lawful there as lawful for ever and take what has been made unlawful there as unlawful for ever.”¹¹ This means that fulfillment of treaty obligation, which has been made mandatory (fard) in this Surah of the Qur’ an, must be obeyed. This command is so important that because of this the whole Surah is also called Surah al-’uqud (Chapter of Promises).¹² Its importance is also understood from the fact that when the Holy Prophet sent Sayyidna’Amru ibn Hazm as Governor of Yemen, he wrote this verse on the top of the decree of appointment.¹³ Thus for every Islamic government or State fulfillment of a treaty is a solemn religious duty. This is a special emphasis by Muhammad on the doctrine of pacta in the area of Siyar.

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3. Why Pacta Doctrine in Islam?

The pacta doctrine is closely and inseparably related to the very existence and purpose of creation of mankind. Allaah created mankind and gathered all souls together in the world of souls (’alam al-arwah) and asked them, “Am I not your Lord (Rabb)?”¹⁴ Then all¹⁵ This was an offer from the Lord of the universe, which mankind did accept. That is why every human being is supposed to have faith in Allaah- to worship only One God. Allaah says,

And why should you not believe in Allaah seeing that the Messenger (Prophet Muhammad) calls on you to believe in your Lord, and He has made a covenant with you (for you to accept faith), if you are believers.¹⁶

After one has accepted the monotheistic faith of Islam and has become a Muslim, it is an obligation for him to keep promises of all sorts. It is unbecoming of him to renege upon them. Rather it is a sign of hypocrisy to do so. In the words of the Prophet, “The signs of a hypocrite are three: whenever he speaks, he tells a lie; whenever he makes a promise, he always breaks it; if you trust him, he proves to be dishonest.”¹⁷ That is why Allaah the souls replied, ‘Yes indeed.’ asks the believers to shun this treacherous nature: “And do not make your oaths a deceit to take advantage of one another.”¹⁸ Otherwise, they may loose faith (Iman) and turn to be hypocrites: “or else your foot will slip after having been firm (on the path of truth).”¹⁹

And the hypocrites’will end up in the hell: “[S]urely the hypocrites shall be cast into the lowest depth of hell, and you shall find none to help them.”²⁰

Second, Allaah has commanded Muslims to do justice and to be good to others and at the same time to shun indecency, wickedness and transgression (of the limits set by Him).²¹ Qur’ an interpreters define justice and being good as follows:

[J]ustice means that one should give the right of the other person in full and take what comes to him, neither less nor more; then, should someone hurt you, you hurt him only as much as he did, no more. And... being good means that you give thePage 379...