The sui Generis of Nuclear Fatwa Under Customary International Law

• Author: Jaber Seyvanizad
• Position: Islamic Azad University (Urmia, Iran)
• Pages: 95-134

BRICS LAW JOURNAL Volume IV (2017) Issue 2

THE SUI GENERIS oF nuCLEaR FaTwa

unDER CuSToMaRY InTERnaTIonaL Law

JABER SEYVANIZAD,

Islamic Azad University (Urmia, Iran)

DOI: 10.21684/2412-2343-2017-4-2-95-134

Due to the uctuating nature of the Customary International Law, emerging customs

have had good potential to appear in several forms during the past decade. In other

words, there are various legal mechanisms indicating the genesis of CIL. One of these

forms is the internationally known unilateral act of State which can be potentially

recognized as a customary rule. The best example of a unilateral act of State would

be Truman Proclamation which was transformed into a customary international rule

concerning law of seas. With regards to the same legal framework and acts like Truman

Proclamation, this research tries to answer the question that how the sui generis of fatwa

in a custom-construction process concerning international law of WMD and through the

modernized methodology can contribute. Illustrating the superiority of fatwa over the

sui generis treaties on one hand and restricting mechanisms like NPT on the other, it can

be indicated that the rst steps concerning the genesis of a new customary approach in

the eld of international law of WMD has been derived from nuclear fatwa.

Keywords: nuclear fatwa; customary international law; law of treaties; NPT; WMD.

Recommended citation: Jaber Seyvanizad, The Sui Generis of Nuclear Fatwa under

Customary International Law, 4(2) BRICS Law Journal 95–134 (2017).

Table of Contents

Introduction

1. Denition of International Custom

2. Material Element

BRICS LAW JOURNAL Volume IV (2017) Issue 2 96

2.1. The Practice Makers

2.1.1. States

2.1.2. International Organizations

2.1.3. International Judicial Authorities

2.1.4. Non-Governmental International Organizations

2.2. Verbal and Material Acts

2.2.1. Verbal Element: Emergence in the Practice or Legal Belief?

2.3. Refusal or Omission

2.4. Characteristics of the Practice

2.4.1. The Generality of Practice and the Limits of This Generality

2.4.2. Duration

2.4.3. Integrity and Uniformity of Practices

2.4.3.1. The Practice of the Beneciary States

3. Opinio Juris

3.1. The Consent Theory of the Voluntarist

3.2. Legal Beliefs Derived from the Necessities

3.3. Theoretical Fundamentals

3.4. The Procedure of the International “Judicial Practice”

3.4.1. International Court of Justice

4. Comparative Study of Fatwa Sui Generis with NPT and the Advisory Opinion

of the International Court of Justice

4.1. Generalities

4.2. Compatibility of the Edict’s Legal Regime with NPT Master Keys

5. The Superiority of Fatwa to the System of Treaties

6. The Legality of Threat or Use of Nuclear Weapons

Conclusion

Introduction

According to the features emanating from the principles of justice and security,

the legal regime of the nuclear fatwa1 is oering a new approach in the eld of

disarmament and non-proliferation of the weapons of mass destruction. The growing

international acceptance of this approach in the realm of customary international

law and the uid nature of the boundaries of the international law development

underlie the genesis of a new custom which is originated from legal regime of the

1 Fatwa in the Islamic faith is an authoritative legal opinion or learned interpretation that a qualied

jurist can give on issues pertaining to the Islamic law. On the other words, fatwa is the expression of

God’s view towards something. This view is extracted from the specied sources by a highly qualied

jurist.

JABER SEYVANIZAD 97

nuclear fatwa.2 This fact requires the necessity of studies in the eld of religion and

religious beliefs, particularly in religious communities. And more pronounced that,

the purpose of international law and monotheistic religions is placed in one direction.

This means that if we want to consider a common denominator between them, it

will be the maintenance of global peace and security. The only dierence here is in

a word, and that is “justice,” i.e. maintaining international peace and security in terms

of justice. Therefore, this fact was noted in the message that Iran’s Supreme Leader

sent in response to President Obama3. In his speech in Berlin, President Obama

uttered that international peace and security is recognizable only in terms of justice

and asserted that if this matter is recognized, there will be no war in the world. It is

evident that the function of religious values has a specic capacity that can be very

eective in the genesis of modern international law, as in most of the customary

rules which are based on the values of religious beliefs. Thus, it can be said that the

values derived from religion and monotheistic thoughts, in addition to inuencing

the creations of international customs, have a constructive role in sourcing the

genesis of international law. The general principles of law or peremptory norms of

international law are as follows: the principle of fullment of the obligation, good

will, non-violence, non-aggression, prohibition of genocide, prohibition of crimes

against humanity, prohibition of war crimes, non-racial discrimination, non-polluting

the environment, respect for fundamental human right, etc. What is evident is that

in formation of the international custom, the position of persons gets stronger, in

comparison to States that once were the main subjects of international law. This

change of direction in the process of formation and recognition of international

law is very important. This can be viewed from two perspectives: rst, Ayatollah

Khamenei’s fatwa, as a person, and in the framework of individual system, led to

the development of customary international law and second, as the governmental

practice of IRI leads to the development of international law. Even though there are

some special international bi or multilateral ac ts4 in the prohibition of weapons of

2 In this respect various eor ts, in primary formation of an international custom emanating from the

mentioned legal regime can be listed such as; hold of international conference on disarmament in

Tehran, bilateral and multilateral meetings with international high level authorities on clarifying

IRI’s peaceful approach and idea, the global idea of the formation of an international convention on

investigation of nuclear threats after the issuance of nuclear fatwa, documentation of nuclear fatwa

as an internationally legal act in the United Nations (available at https://documents-dds-ny.un.org/

doc/UNDOC/GEN/N10/326/00/PDF/N1032600.pdf?OpenElement); and support of the noted Christian,

Jewish religious gures from the issuance of nuclear fatwa and many other relevant cases.

3 Available at http://www.dw.de/a-16894996.

4 Hague convention on prohibition of poisonous gases (1907), Convention on the Prohibition of the

Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (1993),

Convention on the Prohibition of the Development, Production and Stock piling of Bacteriological

(Biological) and Toxin Weapons and on their Destruction, or Biological Weapons Convention (BWC)

(1972), Comprehensive Nuclear-Test-Ban Treaty (CTBT) (1996), Geneva Protocol (1925), Brussels

Declaration concerning the Laws and Customs of War (1874), Strasbourg Agreement (1675), Treaty