Practice of Iraq and Kuwait in treaty succession : a selective approach based on the Islamic legal theory
al-Rashidi, Madyous Fallah
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The practice of Iraq and Kuwait in treaty succession has significantly contributed to the development of the concept of state succession not only in Islamic law but also in international law; a contribution which advocates the paramount importance of distinguishing between succession in fact and succession in law. Greatest attention is given to the latter in this study which is divided into the following four parts: Part 1. Survey of the development of the concept of succession in fact under Islamic law and throughout the practice of the Islamic State until the advent of the latter's territorial disintegration into many political entities, whereby various Arab territories developed independent factual identities. The practice of Iraq and Kuwait have been selected from among these entities in order to examine the maturity of certain Islamic legal rules governing succession in fact, upon which the rules governing succession in law are based. The second, third and fourth parts of this treatise survey the development of the concept of succession in law under Islamic law and its relationship to international law through five stages. A. Outline of the Islamic legacy in treaty succession according to the primary sources of Islamic law. B. Analysis of the selective practice of two of the evolving Arab states, namely Iraq and Kuwait, in order to throw some light on the application of the primary sources of Islamic law to treaty succession and the resort to principles embodied in the secondary sources where no provision is found in the former. This will help to explain the practice of these states with regard to certain controversial matters where no precedent existed. C. Study of the concept of state succession in Islamic legal theory from which the Iraqi doctrine of devolution and the Kuwaiti doctrine of non-devolution evolved. (A, B and C constitute part 2). D. (Part 3) The adoption of the Iraqi and Kuwaiti legal doctrines on treaty succession by other Arab political entities and the resulting evolution of Arabic public law. E. (Part 4) Interaction between principles and doctrines that have evolved from the secondary sources of Islamic law, such as Arabic public law, on treaty succession and international law by means of the codification process through the work of the U.N.I.L.C. and the 1978 Vienna Convention on State Succession in Respect of Treaties in which the Arab states made an important contribution to the development of the international legal order. This contribution will be further substantiated in the conclusions.