Religion and International Law

Mark Weston Janis
November 17, 2002
            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, The Law 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.
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.