From its earliest days, international
law has been intertwined with religion. The 16th
Century Spanish Catholic priests, Suarez and Vitoria,
who are often viewed as among the founders of the modern
discipline of international law, argued from religious
sources that the Spanish crown was obliged to treat
native Americans as real peoples under the moral influence
of the law of nations. Another founder of international
law, the Dutch Protestant jurist, Hugo Grotius, relied
heavily on Old and New Testament citations to demonstrate
a universal law of nations in his monumental 17th
century text, TheLaw of War and Peace,
usually seen as the first book on international law.
Though Grotius depended on Christian texts for his proofs,
he felt that much of the law of nations bound not only
Christian states, but those of Islam and China, too.
The Treaty of Westphalia of
1648 is usually considered to signal the beginning of
the modern era of the international political system,
a construct based on the concept of sovereign states,
each legally entitled to govern its own territory and
its own population free of external influence. Westphalia's
principle of sovereignty, now embodied in Article 2(4)
of the 1945 Charter of the United Nations, brought an
end to the bloody Thirty Years War where Protestants
and Catholics fought to impose their faiths on each
other. It is said that half of Germany perished in
these religious wars. Sovereignty meant that each state
could choose its own religion without outside intervention,
but the Treaty of Westphalia also included provisions
calling for the protection of Catholics in Protestant
states and vice versa.
Since Westphalia, of course,
religious controversies have not faded away. Moreover,
the star of state sovereignty shines brighter than ever.
Over the last four centuries religious persecutions
have been all too frequently the stuff of current events.
Some have estimated that almost 200 million persons
died in the 20th Century alone as a result
of "ethnic cleansings," much of it based on religious
antagonisms. It is, it seems, one thing to recognize
the right of states to order their own domestic affairs,
religion included. It seems quite another to effectively
secure the enforcement of any international legal guarantees,
whether in treaty or custom, to protect religious diversity.
Considering the relationship
between international law and religion, two contributions
stand out: first, the sometimes beneficial influence
of religious enthusiasms on the development of international
law, and second, the occasional generation of universalistic
norms of international law to protect religious diversity.
Like Suarez, Vitoria, and
Grotius before them, later important promoters of international
law have been motivated at least in part by religious
convictions. This has never been so true as it was for
the American Protestant reformers of the 19th
century. Men like David Low Dodge in New York and Noah
Worcester in Massachusetts, dissatisfied with the waste
of men and material in the War of 1812 and inspired
by the earlier pacific success of the Jay Treaty arbitrations
between the United States and the United Kingdom, founded
state peace societies in 1815 to promote international
arbitration as a substitute for war. They were followed
by William Ladd of Maine, who not only founded the first
nation-wide peace society in 1828, but in 1840 published
an influential book, Essay on a Congress of Nations,
detailing a project for an international court and parliament.
Next came Connecticut's Elihu Burritt who internationalized
the American peace movement, organizing the first international
peace conference in London in 1843, and founding the
still-existing International Law Association in 1873.
The movement that culminated
in Woodrow Wilson's proposals for a League of Nations
and a Permanent Court of International Justice in 1919,
embodied since 1945 in the United Nations and the International
Court of Justice, had little to do with the original
thought of Woodrow Wilson himself, who evinced little
interest in international law during his long academic
career at Johns Hopkins, Bryn Mawr, Wesleyan, and Princeton.
Rather Wilson drew his proposals from a deep well of
Protestant reform proposals, from which he, the son
and grandson of Presbyterian ministers, had often drunk.
Along with other 19th century reform causes
- the abolition of slavery, women's rights, and the
prohibition of alcohol - international law attracted
many, though of course not all, religious enthusiasts.
It was this popular sentiment inspired by religious
fervor, not elite opinion crafted by studied argument
by professional international lawyers, that carried
the cause of international law in 19th and
early 20th century America.
The second principal contribution
is that made by international law to religion in the
form of universalistic norms protecting religious diversity.
Although some such rules are to be found in early modern
treaties such as Westphalia ending the Thirty Years
War in 1648 and Vienna ending the Napoleonic Wars in
1815, it was Article 22 of the League of Nations Covenant
after the First World War that truly inaugurated the
modern period of international guarantees, often violated,
of religious freedom.
Following the ethnic and religious
massacres of the Second World War, the 1948 Universal
Declaration of Human Rights was careful to guarantee
freedom of thought, conscience and religion. Among
other things, it included the freedom to change religion,
the most controversial religious freedom. Although
formally the Declaration is a non-binding U.N. General
Assembly resolution, it has, in the eyes of many international
lawyers, passed into the realm of customary international
law. The U.N. Covenant on Civil and Political Rights
in 1966, a multilateral treaty binding on more than
140 states parties to it, also protects religious freedoms,
but significantly does not explicitly guarantee the
right to change religion. The 1981 Declaration on the
Elimination of All Forms of Intolerance and of Discrimination
Based on Religion or Belief, like the Universal Declaration,
is a non-binding General Assembly resolution. Nevertheless,
it is thought by many to be the most important international
statement protecting religious diversity. It fleshes
out the religious freedoms mentioned in the Universal
Declaration and the Covenant. Again, however, its provisions
respecting religious conversion are weak, reflecting
the deep divide between states permitting and states
prohibiting religious proselytism and conversion.
Despite the rights to religious
freedoms proclaimed in these important international
instruments, it is generally agreed that no area of
human rights is so distant from a meaningful international
consensus as the right to religious diversity. Moreover,
there is virtually no effective universal supervision
of international rights to religious diversity. There
is, however, a regional exception in European human
rights law. Article 9 of the 1950 European Convention
on Human Rights and Fundamental Freedoms guarantees
the right to freedom of thought, conscience, and religion.
Article 9 has been applied, albeit less often and less
forcefully than some other parts of the European Convention,
by the European Court of Human Rights in Strasbourg.
About the Author:
Mark W. Janis is William F. Starr Professor
of Law at the University of Connecticut School of Law.
He is the editor, with Carolyn Evans, of Religion and
International Law, a collection of essays published
by Kluwer in 1999, and the author of An Introduction
to International Law, the 4th edition to
be published by Aspen in 2003.
________________________________
Addendum
By Suryanarayan Sinha
December 2002
The conduct of the Spanish in the 16th century, in
what is now Latin America, did not quite accord with
the views of Suarez, Vitoria, et al regarding relations
with local indigenous societies. Spain had the backing
of certain Papal Bulls, including those of 3 and 4 November
1493 issued by Pope Alexander VI, purporting to authorize
it to take over lands discovered by Christopher Columbus
as also lands subsequently discovered by it. The recognition
of third world entities as subjects of international
law came much later and was due more to secular, than
to religious, factors. In this respect the influence
of (organized) religion has been less than beneficial.
However, and turning to a different aspect, though many
wars have been fought in the past in the name of religion,
the "humanization" of the laws of war has
been helped from its earliest days by the demands by
religious groups that e.g. non-combatants be spared
and weapons - and techniques - which would cause undue
suffering and destruction not be used.* Though these
calls were often disregarded, especially in the heat
of combat, they did contribute to the development of
international humanitarian law.
*For a convenient summary see L.C. Green, The Contemporary
Law of Armed Conflict, 2000, p.20 et seq.
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