THE DIVISION OF THE SEAS IN INTERNATIONAL AND ISLAMIC LAW AND THE CONCEPT OF ḤARĪM AL-BAḤR: A COMPARATIVE FIQH STUDY

Abstract

This original research paper investigates how the division of the seas between international (the high seas) and territorial waters is approached in Islamic law as compared to international law. It describes the conceptualization of the seas against the background of contemporary international and Islamic law and analyses the Islamic legal concept of the appurtenance of the sea, ḥarīm al-baḥr, as a suitable vehicle to accommodate the modern division. The paper draws on source material from different Islamic schools, with a focus on the Ibāḍī school, which historically has paid relatively more attention to the seas. It suggests legal mechanisms that may be activated with regard to notions of territorial and international waters in Islamic law. The study arrives at the conclusion that some modern representations of ḥarīm al-baḥr are not commensurable with its intended legislative purpose (ʿillah).