The Prophet Muḥammad’s Concept of the Freedom of Navigation: The Safe-Conduct of Aylah as a Testament

By Hassan S. Khalilieh

In my exploration of the historical foundations of the freedom of navigation in early Islam, I unearthed documentary evidence from the Prophet’s era that surprisingly supports the rights of non-Muslim polities to navigate the seas and exploit their natural resources. One of the oldest, and the most relevant, comprehensive and succinct pact (or, more precisely, pledge of safe-conduct) of Islamic heritage that pertains to the law and custom of the sea was granted by the Prophet to Mar Yūḥannā ibn Ruʾba, the governor and bishop of the port-city of Aylah (Byzantine Ailanē, ʿAqabah today) on the Red Sea, in Rajab 9 A.H./October 630 C.E., shortly after the campaign of Tabūk.

Perhaps it was Aylah’s strategic geographical location that led the Prophet to grant an unprecedented pledge of safe-conduct (amān) to Yuḥannā ibn Ruʾba.  This scribal covenant reflects the Prophet’s position on access to the sea, freedom of navigation, jurisdiction over a vessel at sea, the legal status of subjects aboard national and foreign-flagged ships, and the legal status of commercial vessels sailing on the high seas and in territorial waters.  It should be noted that the Prophet had issued this guarantee of protection long before Byzantium lost Greater Syria and Egypt to the Muslims, the Persian Empire faded from the international political map, and the Islamic navy was established. Most interestingly, the Prophet Muḥammad never experienced life at sea, nor sailing, but it is reported that he knew how to swim.[1] The decree reads as follows:

In the name of God, the Most Gracious, the Most Merciful: This is a guarantee of protection from God and Muḥammad the Prophet, the Messenger of God, to Yūḥannā ibn Ruʾba and the people of Aylah, for their ships, their caravans by land and sea.  They and all that are with them, men of Syria and the Yemen, and seamen are under the protection of God and the protection of the Prophet Muḥammad – God’s blessing and peace be upon him.  Should any one of them break the treaty by introducing some new factors,[2] then his wealth shall not save him; it is the fair prize of him who takes it.  It is not permitted that they shall be restrained from going down to their wells or using their roads by land or sea.  This treaty is written by Juhaym ibn al-Ṣalt and Shuraḥbīl ibn Ḥasnah on the authority of the Messenger of God – God’s blessing and peace be upon him.[3]

In this scribal pledge, the Prophet gives full recognition to the pacta sunt servanda doctrine, as he does in earlier and later treaties, such as the Treaty of Ḥudaybiyyah (Dhū al-Qiʿdah, 6 A.H./March, 628 C.E.). This pacta bears a divine nature, which is apparent in the opening line: “This is a guarantee of protection from God and Muḥammad the Prophet, the Messenger of God.” God’s presence, anthropomorphically conveyed in the conclusion of the covenant, the adherence of Muslims to Qurʾānic principles, and the personal commitment of the Prophet assured the dignitaries of Aylah that he would honor the provisions of the treaty.  Yūḥanna ibn Ruʾba and the residents of Aylah likewise committed to compliance with the truce despite the lack of a specified duration.

The term security or safety (amn) conveys two dimensions of sense. The first dimension occurs in the realm of an individual’s peace of mind, psychological tranquillity, and spiritual satisfaction, whereas the second dimension relates to a people’s collective social, political, and economic status. On an international level, amn refers to a situation in which superpowers are not supposed to threaten other nations or deprive their residents of their natural rights. The Qurʾān maintains that foreign affairs should be guided by principle and not by religious or military supremacy. All children of Adam should enjoy God’s bounties equally and not be deprived of inherent natural rights. Furthermore, Islamic law recognizes every individual’s right to personal safety against all forms of abuse and aggression. In order to remove any possible ambiguity, the Prophet adopted the principle of reciprocity, guaranteeing the safety of all those heading to or from Aylah in return for assuring Muslims undisturbed passage when passing through or near this port-city.

Close examination reveals that this pact of safe-conduct, whilst being succinct, does concur fully with Qurʾānic principles, addressing various issues related to freedom of navigation and movement of people on land, whether explicitly or implicitly. The Qurʾān does not contain even a single verse excluding members of any particular nation from navigating the seas or from traveling by land for any purpose.  Qurʾānic principles maintain that the world belongs to no particular nation; the land and sea should be free and accessible to all. Interestingly, the Prophet did not draw a sharp distinction between adjacent offshore zones and the high seas, but rather appears to regard the entire sea as a common right of all peoples, such that no authority whatsoever may deny access to it or hinder navigation and the exploitation of natural marine resources.

It is evident in the Prophet’s promise not to violate Aylah’s territorial integrity.  He bound himself to honor the pledge of security and assured protection to the residents of Aylah and all those arriving in or departing from Aylah so long as the provisions of the truce were observed. He promised to protect ships, seamen, passengers, and shipments from Aylah both within and beyond its territorial sovereignty. He pledged not to interfere with the navigation and trade of Aylah’s residents and to ensure maintenance of their commercial and diplomatic ties with local and foreign entities as existing prior to the truce. The lack of any reference to the internal governance of a ship can be explained by the Prophet’s abstention from interference with the management of a vessel, recognizing her as an extension of her flag state’s territory. Thus, as a sovereign principality, Aylah could assert jurisdiction over its flagged vessels, their crews, contents, and passengers, irrespective of nationality, not only within its territorial domain but also while on the high seas and in foreign ports.

The residents of this port-city were free to trade with any nation, particularly with the Syrians and Yemenites with whom the local merchants seem to have had strong commercial ties. Notably, the pledge also guarantees the right of foreign individuals to travel to and from Aylah, irrespective of the flag flown by their vessel.  Finally, the pledge does not impose any kind of restriction on non-Muslim merchants or voyagers sailing through the Sea of the Hijaz (the Arabian littoral of the Red Sea), whose special legal status would come later. At that time, the Arabian littoral of the Red Sea did not enjoy any special legal privilege. Scribal covenants of the same nature that guaranteed the rights to freedom of religion and liberty of movement and mobility were signed between the Prophet Muḥammad and the Armenian Christians of Jerusalem (4 A.H./626 C.E.), the Monks of Saint Catherine and the Mount of Olives (4 A.H./626 C.E., renewed in 8 A.H./629-30 C.E.), the residents of Maqnā (9 A.H./630 C.E.), and the Christians of the Province of Najrān (10 A.H./631 C.E.).[4]

It should be remembered that the Aylah scribal covenant was promulgated a decade before the establishment of the first Islamic military fleet in the Red Sea.  Given the nonexistence of a Muslim naval force, it would seem unreasonable to attribute to the Prophet the intention to offer outright physical security in meeting the pledges of the treaty, such as armed personnel or a naval escort for Aylah-flagged ships. Instead, it seems that the Prophet’s “guarantee of protection” meant that Muslims would refrain from harassing, assaulting, or seizing Aylah-flagged vessels or their contents, crews, travelers, or chattels. The absence of reference to any particular jurisdiction verifies the Prophet’s abstention from interference with the internal affairs and management a vessel and his recognition that she acts as an extension of her flag state’s territory.

The 9 A.H./630 C.E. pledge and other documented covenants, truces, and safe-conduct certificates granted in the course of history reflect the Muslim authorities’ actual position towards freedom of navigation, jurisdiction over ships on the high seas, and the legal status of subjects sailing on board both friend- and enemy-flagged vessels. Equipped with safe-conduct pledges, enemy-alien merchants and travelers could traverse the seas freely, including those surrounded by Islamic-ruled territories, such as the Sea of the Hijaz, which enjoyed a special status in Islamic law from the reign of ʿUmar ibn al-Khaṭṭāb up until the late nineteenth century. In order to insure the safety and security at sea and in foreign territories of subjects and their chattels, Islamic and foreign sovereigns concluded treaties and truces. Muslims were required by law to assure the safety of all mustaʾmins (grantees/holders of safe-conduct) and their property until they reached a place at sea where they felt secure, or arrived at their native country, within the time limits of the relevant pledge. Even during wartime, ḥarbīs—unlike combatants—should not be denied free access to the sea.

Notes:

[1] ʿAbd al-Raḥmān ibn Abū Bakr ibn Muḥammad al-Suyūṭī, Al-Bāḥa fī Faḍl al-Sibāḥa (Ṭanṭā: Dār al-Ṣaḥāba lil-Turāth, 1411/1990), 23-24.

[2] The term “factors” denotes any personal actions undertaken by a resident of Aylah that would alter the terms of the safe-conduct decree as signed by the Prophet and the Patriarch.

[3] Muḥammad ibn Isḥāq ibn Yasār ibn Khiyār, Al-Sīra al-Nabawiyya (Beirut: Dār al-Kutub al-ʿIlmiyyah, 1424/2004), 604; Abū ʿAbd Allāh Muḥammad ibn ʿUmar al-Wāqidī, Al-Maghāzī (Beirut: ʿᾹlam al-Kutub, 1404/1984), 3:1031; Abū Muḥammad ʿAbd al-Malik ibn Hishām, Al-Sīra al-Nabawiyya (Beirut: Dār al-Kitāb al-ʿArabī, 1410/1990), 4:165-66; Abū ʿUbyad al-Qāsim ibn Sallām al-Harawī, Kitāb al-Amwāl (Beirut: Dār al-Shurūq, 1409/1989), 289; Ḥamīd ibn Mukhlid ibn Qutayba ibn Zanjawayh, Kitāb al-Amwāl (Riyāḍ: Markaz al-Malik Faisal li’l-Buḥūth wa’l-Dirāsāt al-Islāmiyya, 1406/1986), 463; ʿAwn al-Sharīf Qāsim, Nashʾat al-Dawla al-Islāmiyya ʿalā ʿAhd Rasūl Allāh (Beirut: Dār al-Jīl, 1411/1991), 123-25, 309-10; Aḥmad Miyānjī, Makātīb al-Rasūl (Qumm, 1998), 3:97-100; Khalid R. al-Jamīlī, Aḥkām al-Muʿāhadāt fī al-Sharīʿah al-Islāmiyya: Taḥlīl al-Muʿāhadāt al-Mubrama fī ʿAṣr al-Rasūl (Baghdad: Markaz al-Buḥūth wa’l-Dirāsāt al-Islāmiyya, 2008), 107-13; ʿAbd al-ʿAzīz al-ʿUmarī, Rasūl Allāh wa-Khātam al-Nabiyyīn (Riyāḍ, 1432/2011), 3:859; John A. Morrow, The Covenants of the Prophet Muhammad with Christians of the World (Kettering Ohio: Angelico Press, Sophia Perennis, 2013), 54-55; Hassan S. Khalilieh, Islamic Law of the Sea: Freedom of Navigation and Passage Rights in Islamic Thought (Cambridge: Cambridge University Press, 2019), 45-46.

The decree was authenticated by early sīrah biographers, historians, and jurists, some of whom were born and lived in the first and second centuries of the Hijra.  They include Ibn Isḥāq (85-151/704-768), Wāqidī (130-207/747-822), Ibn Hishām (d. 218/833), Qāsim ibn Sallām (157-224/774-838), and Ibn Zanjawayh (180-251/796-865). Later commentators and jurists reinforced its authenticity, including Ibn Sayyid al-Nās (671-734/1272-1334), Ibn Qayyim al-Jawziyya (691-751/1292-1349), Ibn Kathīr (700-774/1300-1373), and Taqiyy al-Dīn al-Maqrīzī (766-845/1364-1442), who provide a nearly identical form of the deed as that found in the Sīrah of Ibn Isḥāq. Although one cannot deny the fact that forgeries did take place, this “guarantee of protection” is certainly authentic and can be ascribed to the Prophet Muḥammad. In his Ṣaḥīḥ, al-Imām al-Bukhārī twice refers to it as a treaty that the Prophet concluded with the “King of Aylah,” allowing him to retain authority over his territory in return for a pre-established collective jizya. Bukhārī substantiates the existence of the  treaty but never quotes it in full; however, in his commentary on the Ṣaḥīḥ Bukhārī, Ibn Ḥajar al-ʿAsqalānī (773-852/1372-1449) attaches the exact version transmitted by Ibn Isḥāq and others and analyzes it in minute detail. The existence of this Prophetic document is further corroborated by the early Muslim historians Balādhurī (d. 279/892), Ṭabarī (224-310/839-923), and Masʿūdī (282-345/896-956), who highlight its financial ramifications—the imposition of the jizya on able-bodied males of Aylah—but pay no attention to other legal aspects, namely freedom of movement. Ṭabārī reports that the drafter had produced two copies, one of which was retained by the Prophet and the other kept by the “King of Aylah.” In view of the foregoing evidence, it is reasonable to infer that the text at our disposal has been preserved in its entirety, matching in language, content, and format the original as dictated by the Prophet in 9 A.H./630 C.E. Muḥammad ibn Ismāʿīl al-Bukhārī, Ṣaḥīḥ al-Bukhārī (Damascus: Dār Ibn Kathīr, 1414/1993), 2:539, ḥadīth no. 1411; 3:1153, ḥadīth no. 2990; Ibn Ḥajar al-ʿAsqalānī, Fatḥ al-Bārī Sharḥ Ṣaḥīḥ al-Bukhārī (Cairo: Dār al-Rayyān lil-Turāth, 1407/1986), 3:402-06; Abū Jaʿfar Muḥammad ibn Jarīr Ṭabarī, Tārīkh al-Rusul wa’l-Mulūk (Cairo: Dār al-Maʿārif, 1387/1967), 3:108; Abū al-ʿAbbās Aḥmad ibn Yaḥyā al-Balādhurī, Futūḥ al-Buldān (Beirut: Muʾassasat al-Maʿārif, 1407/1987), 79, 92; Abū al-Ḥasan ʿAlī ibn al-Ḥusayn ibn ʿAlī al- Masʿūdī, Al-Tanbīh wa’l-Ishrāf (Leiden: M.J. de Goeje, 1894), 272; Milka Levy-Rubin, Non-Muslims in the Early Islamic Empire: From Surrender to co-Existence (Cambridge: Cambridge University Press, 2011), 33, 38.

[4] Muḥammad Ḥamīdullāh, Al-Wathāʾiq al-Siyāsiyya lil-ʿAhd al-Nabawī wa’l-Khilāfa al-Rāshida (Beirut: Dār al-Nafāʾis, 1407/1987), 115-23, 557-62; Jamīlī, Aḥkām al-Muʿāhadāt, 119, 123; Morrow, The Covenants of the Prophet Muhammad, 52-55, 65-98, 205-12; Moshe Gil, A History of Palestine 634-1099 (Cambridge: Cambridge University Press, 1992), 29-30; Ahmed el-Wakil, “Searching for the Covenants: Identifying Authentic Documents of the Prophet based on Scribal Conventions and Textual Analysis,” (M.A. Thesis, College of Islamic Studies, Hamad bin Khalifa University, 2017), 61-65, 75-76; Ahmed el-Wakil, “The Prophet’s Treaty with the Christians of Najran: An Analytical Study to Determine the Authenticity of the Covenants,” Journal of Islamic Studies 27, no. 3 (2016): 273-354.

(Suggested Bluebook citation: Hassan S. Khalilieh, The Prophet Muḥammad’s Concept of the Freedom of Navigation: The Safe-Conduct of Aylah as a Testament, Islamic Law Blog (May 16, 2024), https://islamiclaw.blog/2024/05/16/the-prophet-mu%e1%b8%a5ammads-concept-of-the-freedom-of-navigation-the-safe-conduct-of-aylah-as-a-testament/)

(Suggested Chicago citation: Hassan S. Khalilieh, “The Prophet Muḥammad’s Concept of the Freedom of Navigation: The Safe-Conduct of Aylah as a Testament,” Islamic Law Blog, May 16, 2024, https://islamiclaw.blog/2024/05/16/the-prophet-mu%e1%b8%a5ammads-concept-of-the-freedom-of-navigation-the-safe-conduct-of-aylah-as-a-testament/)

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