Note: Hujjat al-Islam wal-Muslimeen Dr. Masoud Raei is one of those who has made the greatest educational and research efforts in the field of the jurisprudence of international law. As a professor of international law at Najafabad University, he has authored several books and more than 300 articles in the arena of international law. We spoke with him about the fiqh rules of international relations and the difference between international law and international relations. He pointed to a new insight regarding the difference between these two concepts, which, according to him, had recently come to his mind. He considers general fiqh rules such as the rule of la darar and the negation of domination as significant capacities for the jurisprudence of international relations. The details of this exclusive interview by Contemporary Jurisprudence with this professor and researcher from the seminary and university are presented for your review:

Contemporary Jurisprudence: What is the jurisprudence of international relations, and what matters does it encompass?

Raei: Regarding the term “fiqh” in the compound “jurisprudence of international relations,” two interpretations have emerged. Sometimes, it means that the discipline which humans have named international relations has certain issues, and we seek to examine their fiqh ruling. In this approach, the Lawgiver merely seeks to endorse or not endorse the positive and prescriptive rulings of international relations. The result of this approach is that any case endorsed by the Lawgiver has validity, and if not, it lacks validity. The topics of this fiqh chapter are derived from the same human discipline of international relations, and fiqh only expresses its view on the positive or prescriptive ruling.

However, the second view consists of a macro perspective on international issues. In this approach, the genitive construction “fiqh” and “international relations” evokes a productive view of fiqh and the expansion of fiqh knowledge. In this view, fiqh specifies both the subject and the ruling. The topics obtained in this second view are entirely derived from fiqh sources.

For example, in the first view, we have the term “country,” and fiqh seeks to establish a rule for regulating relations with another country. But the issue is whether something called a “country” is accepted by the fiqh apparatus or not. In the second view, we do not use the term “country” and instead use “dar” (abode); Dar al-Islam or Dar al-Kufr. Naturally, this terminology, which indicates the topical analysis of the discussion, is derived from fiqh sources, and ultimately, it is fiqh itself that specifies the fiqh effects branching from this issue.

Usually, what has been pursued so far in scientific assemblies, both seminary and university, is the first view, and views have less been directed toward the second. It is natural that in the second view, the necessity of strength and power in ijtihad clearly manifests itself, although it is needed in the first as well, but not to the same degree and intensity as the second. In this view, the person must have both the necessary information and studies regarding international relations and law, as well as sufficient knowledge of fiqh.

The second point is that in human knowledge, we distinguish between international relations and international law. International relations is not based on legal principles and rules; rather, it is based on the thoughts of thinkers and the views derived from experts; whereas the discussion of international law is based on rules and principles, and we deal with regulations; now, the origin of the regulations can be treaties, custom, or general principles.

In international law, we deal with obligation as well as enforcement guarantee; but in international relations, we deal with “is” statements and less enter the domain of “oughts” and normative views; therefore, when we present these issues to the fiqh apparatus, international fiqh cannot distinguish between relations and law; because fiqh deals with oughts and ought-nots, and whether it falls under relations or under law makes no difference to it. In fiqh, everything revolves around oughts, and there is no discussion about “is” statements. This is something that has recently come to my mind in my latest studies.

Contemporary Jurisprudence: What are the specific rules of the jurisprudence of international relations? Name a few rules.

Raei: Regarding the rules of the jurisprudence of international relations, many books have not been written. The late Ayatollah Amid Zanjani’s fourth volume of his book addressed this very topic, and his view was toward the specific rules of international fiqh. The discussion in this field is very meager and thin. If we consider the book of Mir Fattah Naraqi and enter international law, naturally we cannot express such rules. Of course, there are general rules like the rule of la darar that apply in the jurisprudence of international relations as well. Recently, we approved a doctoral dissertation asking whether, based on la darar, an international treaty can be terminated? For example, if membership in BRICS entails harm, can one withdraw from it and terminate the commitment? Or, for instance, where the existence of an embassy entails corruption and harm, can relations between two countries be severed based on the rule of la darar? La darar has found such extensive application in these discussions that our minds have turned toward addressing this rule specifically.

Another rule under discussion is the rule of negation of domination, which is: “Allah will never grant the disbelievers a way over the believers.” The question is, what kind of domination is this? Our predecessors mostly confined this domination to economic dimensions; but today in international fiqh, the discussion is more about political dimensions. For example, membership in any international institution, if it entails domination of non-Muslims over Muslims, Allah never accepts such domination. Naturally, no Muslim should allow themselves to enter such an agreement.

Today, we must develop the output of rules like the negation of domination and extend it to other issues and dimensions, such as cultural and military. Entering a military treaty that causes domination has no justification. Even some dear scholars have extended the discussion to entering international courts, as it may entail domination of disbelievers over Muslims. The noble verse “And do not incline toward those who do wrong, lest the Fire touch you” is another evidence for the negation of domination. They have raised the discussion based on whether inclination occurs here or not; therefore, according to this noble verse, they have framed the discussion in the space of inclination and non-inclination.

There are many other discussions raised under the negation of domination, such as entering FATF: Does this treaty entail domination, and will non-Muslims become aware of Muslims’ information or not? Also, with entering the FATF treaty, the issue of an Islamic country’s assistance to the resistance front will become transparent, and the possibility of aiding the resistance front will be lost. These are discussions that experts must answer, but in any case, they will fall under these cases.

There are also other rules such as the rule of dignity, the rule of preventing the debasement of religion, and the rule of peaceful coexistence, which are noteworthy and contemplative rules falling under international justice discussions.

Contemporary Jurisprudence: What are the general but widely applicable rules in international fiqh?

Raei: When we speak of adjudication in international affairs, it refers to international criminal law. An important issue in international criminal fiqh is the existence of international courts, such as the first generation of criminal courts in Tokyo, or the second generation of Security Council courts, or like the third generation of the permanent criminal court known as the International Criminal Court, and the fourth generation which are hybrid courts. Alongside these courts are courts like Sierra Leone and the like.

Regarding these courts, what matters is whether the verdict issued by these courts has shar’i validity or not. Here, the rule of non-inclination toward the oppressor is raised. Alongside it, the discussion of non-recourse to a judge is raised: if the judge is a taghut, it is permissible not to refer to him. All these are framed under the rule of non-inclination. This rule is very widely applicable. If we want to develop it a bit, we can raise the international court, where we have numerous complaints from Iran against America and Canada. If we develop the judicial space, we must also discuss international arbitrations. In these courts, examining arbitrations about countries’ disputes is entrusted to America, and the arbitrator does not perform a significant role.

The rule of la darar is one of the widely applicable rules. Also, the rule of la haraj and the rule of inclination are among the widely applicable rules. Currently, there are many disputes between countries, some of which exist even among Islamic countries; what is the implication of the rule of non-inclination? If we should not refer to international courts, then what should we do in case of disputes? For example, regarding the Caspian Sea, the passage of ships through the Strait of Hormuz, and the use of maritime areas, disputes sometimes arise, or in military issues, disputes emerge and someone is assassinated, leading to disagreement; should one go to an international court and have the verdict issued there?

Contemporary Jurisprudence: What method and approach do you propose for discovering the specific rules of the jurisprudence of international relations?

Raei: The method that the late Mir Fattah had, and later other great scholars who followed this path, as well as Ayatollah Amid Zanjani, is a deeper look into fiqh knowledge. In this way, tanqih al-manat and ilgha’ al-khususiyyah (elimination of particularity) can also be helpful.