Private Ordering for non-Muslims in the Gulf States (GCC); Administration of Justice and Constitutionalisation

Abstract

In recent years, the member states of the Gulf Cooperation Council (GCC) have witnessed several socio-legal changes that coincided with their major economic plans to move away from their primary dependence on natural resources. Consequently, GCC governments are aware that part of the implementation of these plans largely depends on attracting foreign investors, entrepreneurs, and highly skilled workers to reside, not temporarily, but permanently. Several laws have been amended, including those governing residency, naturalization, and even property ownership, to create a favourable, attractive, and friendly environment for recent residents and newcomers (Muslims and non-Muslims). Regarding family matters for non- Muslims, the GCC differ in the applicable law (between Islamic, secular, and conflict of laws). This thesis primarily discusses the extent to which, remaining within the framework of Sharia law, the GCC states can ensure, through arbitration laws, that non-Muslims are adjudicated in family matters according to the law of their choice and thereby contribute to the achievement of their economic plans. To answer this question, the thesis first examines the position of Sharia law on the rights of non-Muslims, including the right to litigate according to their own laws. It then analyses the historical practice of Muslim states (from the rise of Islam until the fall of the Ottoman Empire) towards religious minorities regarding this right. It then examines comparatively the constitutions and laws of the Gulf states regarding the status of non-Muslims in family disputes. Finally, an international practice (specifically, New York and England and Wales) is studied as practical examples of how members of religious minorities can litigate (through arbitration) according to their religious laws. The research methodology used to answer the main question and sub-questions is mainly doctrinal, comparative, and historical- legal and partly socio-legal. The thesis concludes by proposing a constitutional amendment and some legal reforms that would be consistent with the framework of Sharia, while still meeting the economic objectives of the GCC states.