Abstract
This chapter seeks to provide a brief account of the principal steps through which freedom of religion or belief has emerged in its current form. It will be shown that extending freedom of religion or belief has long been seen as a way of avoiding conflict, whilst placing limitations upon its enjoyment has led to conflict. It will also be seen that approaches taken have varied over time and that there has been, in general terms, a shift away from the practice of attempting to ensure civil harmony by keeping those of different religious persuasions apart, and towards providing tools for facilitating their peaceful coexistence within a common framework. Since the latter stages of this story are both more familiar and covered in greater detail by other contributors to this volume, they will be only lightly sketched here. The final section of this chapter will offer some reflections on current practice in the light of the material presented.
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Reference
See Arthur Nussbaum, A Concise History of the Law of Nations,rev. ed. (New York: Macmillan, 1954); Malcolm D. Evans, Religious Liberty and International Law in Europe (Cambridge: Cambridge University Press, 1997), chap. 2.
Edward Gibbon, The Decline and Fall of the Roman Empire, ed. David Womersley (London: Allen Lane, 1994), chap. 2; first published in 1776.
See Henry Bettenson and Chris Maunder, eds., Documents of the Christian Church, 3d ed. (Oxford: Oxford University Press, 1999), 16. The Edict also put Christians under a duty to pray for the Emperor and Empire.
Ibid., 17.
As a result of the Edict of Thessalonica (380). Bettenson and Maunder, Documents of the Christian Church, 24.
Cicero, De Officiis, bk. 1, sec. 36.
Cicero, De Respublica, bk. 1, sec. 25; Coleman Phillipson, The International Law and Custom of Ancient Greece and Rome (London: Macmillan, 1911), 2:195.
Deane concludes that Augustine came to the position that “the church had a duty as well as a right to ask the State to punish heretics and schismatics perse, while Christian Kings had an obligation to use their power to protect and support the Church against heresy and schism as well as against paganism” (Herbert A. Deane, The Political and Social Ideas of St Augustine [New York: Columbia University Press, 1963], 214¡ª15). This, however, did not extend to forcible conversion.
Aquinas, Summa Theologica, pt. 2–3, q. 40.
Vitoria, De Indis, sec. 1, ss. 7–15.
Ibid., s. 15.
Vitoria, De lure Belli, s. 10. Nevertheless, Vitoria made it clear that he endorsed the view that Christians had a right to preach the gospel to unbelievers and should they be resisted, “the Spaniard¡ may preach it despite their unwillingness and devote themselves to the conversion of the people in question, and if need be they may then accept or even make war, until they succeed in obtaining facilities and safety for preaching the gospel.” Converts could be protected, by means of war if necessary, from attempts to reconvert them to their previous religion and, should a large number become converted, then the Pope might place a Christian ruler over them (De Indis, sec. 3, ss. 9–14). As Ortega puts it, “Vitoria rejected the notion of a just religious war¡. However, in his absolute belief in the religious and cultural supremacy of Christianity, Vitoria left the Indians little scope to exercise this freedom of choice” (Martin C. Ortega, “Vitoria and the Universalist Conception of International Relations,” in Classical Theories of International Relations, ed. Ian Clark and Iver B. Neumann [Basingstoke: Macmillan, 1996], 109–10).
See Gesina H. J. Van der Molen, Alberico Gentili and the Development of International Law, 2d ed. (Leyden: A. W. Sijthoff, 1968), 245–56.
Gentili, De lure Belli, bk. 1, chap. 9.
Ibid.
Ibid., bk. 3, chap. 11, ss. 558–60. Should the defeated peoples have no religion, however, the matter would be different and “the victor¡ may most justly compel to change conduct which is contrary to nature.”
Ibid., bk. 1, chap. 10, s. 69.
Ibid., s. 72.
Ibid., chap. 11, s. 78.
Comprising the Treaty of Münster (France and the Empire), 1 CTS 271, and the Treaty of Osnabrück (Sweden and the Empire), 1 CTS 119.
The way had, however, already been paved by the Peace of Nürnberg (1532) and the Treaty of Passau (1552).
Ecclesiastical territories that had adopted Lutheranism were required to revert to Catholicism, although the Declaratio Ferdinandea permitted practicing Lutherans in these territories to continue in their faith.
See art. 25 and art. 16. This was further buttressed by the obligation that “no Estate shall try to persuade the subjects of other Estates to abandon their religion nor protect them against their own magistrates” (art. 23), an early example of the principle of nonintervention in the internal affairs of others (text in Gerhard Benecke, Germany in the Thirty Years War [London: Edwin Arnold, 1978], 8).
Alhough this is clear now, the Peace itself was couched in terms of an interim arrangement, to take effect until some “ultimate transaction of religion” took place. Thus it was premised upon the assumptions of universality that it in fact undermined. See Geoffrey R. Elton, ed., New Cambridge Modern History, 2nd ed. (Cambridge: Cambridge University Press, 1990), 2:195.
Art. 24. See Benecke, Germany in the Thirty Years War, 9; and Richard B. Wernham, ed., New Cambridge Modern History (Cambridge: Cambridge University Press, 1968), 3:491.
By the 1560s Calvinism had spread from its home in Geneva and was taking hold in the Northern Provinces of the Low Countries. In the Treaty of Union of 1579, article 13, the seven provinces recognized that “each individual enjoys freedom of religion and no one is persecuted or questioned about his religion.”
Treaty of Peace between France and the Empire, signed 14(24) October 1648 at Münster, 1 CTS 271.
Treaty of Peace between Sweden and the Empire, signed 14(24) October 1648 at Osnabrück, 1 CTS 119.
The Papacy was not represented at the conferences, and in the bull Zelo Domus Dei, Pope Innocent X denounced the religious aspects of the treaties as “null, void, invalid, inequitable, unjust, condemned, reprobated, frivolous, of no force or effect.” Nevertheless, the treaties were honored by the parties (Nussbaum, A Concise History of the Law of Nations, 116).
The resolution of the conflict between the Netherlands and Spain, also concluded at Münster, did not extend religious liberties to the Catholics of those parts of Flanders, Brabant, and Limburg that passed to the Netherlands, despite the attempts of Spain. See New Cambridge Modern History, 4:381–82.
Indeed, article 77 of the Treaty of Münster obliged the French king to preserve Catholicism “and abolish all innovations crept in during the war” in the territories ceded to France. Article 28, however, ensured freedom of worship for Lutherans in areas of the Palatine remaining under the control of Catholic barons.
Treaty of Münster, art. 49.
Treaty of Osnabrück, art. 7, secs. 1–2.
Ibid., art. 5, sec. 30. Those who changed their religion subsequent to the Treaty could be required to leave after a period of three years.
For example, by virtue of the Treaties of Peace concluded in 1713 at Utrecht (which brought to an end the wars of the Spanish Succession), Great Britain undertook to allow Catholics the free exercise of their religion (as far as the laws of Great Britain permitted) in those areas of Newfoundland ceded to it by France (27 CTS 475) and in Gibraltar, ceded to Great Britain by Spain (27 CTS 295). Great Britain undertook similar obligations when acquiring Canada from France and Florida from Spain under the 1763 Peace of Paris (42 CTS 279).
See, for example, article 10 of the Treaty of Nystadt (1721) concerning the free exercise of the Protestant religion and the maintenance of Protestant schools in areas ceded to Russia by Sweden (31 CTS 339); article 14 of the Treaty of Hubertusburg (1763) in which Prussia undertook to maintain Catholicism in Silesia (ceded by Austria), whilst not “detracting from the complete freedom of conscience of the Protestant religion” (42 CTS 347); article 8 of the Treaty of Warsaw (1773) securing to the Catholic populations of Pomerania and other areas of Greater Poland ceded by Poland to Prussia the exercise of their religion as at September 1772 (45 CTS 253); article 8 of the Treaty of Grodno (1793) which secured to both the Latin and Uniate Catholic population of Lithuania (ceded by Poland to Russia) full enjoyment of their possessions and rights within the ceded territories and, in addition, the freedom of worship throughout the entire Russian Empire (52 CTS 83).
That is not to say that there were no moves towards religious tolerance. On the contrary, the spirit of the Enlightenment engendered a liberalization of internal regulation of religious affairs throughout Europe. The Napoleonic reordering of the western German states further eroded the doctrinal rigidity of many of the client states. See James J. Sheehan, Oxford History of Modern Europe: German History,1770–1866 (Oxford: Clarendon, 1989), 268–69.
When Russia returned Bessarabia, Wallachia, and Moldavia to the Ottomans, the Sublime Porte undertook “to obstruct in no manner whatsoever the free exercise of the Christian religion” in those territories (Treaty of Kutschuk¡ªKainardji, 1774, art. 16[2]). When the 1856 Treaty of Paris (114 CTS 409), by which the Crimea war was terminated, confirmed Ottoman suzerainty over Wallachia, Moldavia (art. 22), and Serbia (art. 28), it did so subject to a specific undertaking to preserve, inter alia, “full liberty of worship.”
The legal system of the Empire was based on Muslim religious law, which was considered not to apply to disputes between non-Muslims. This affected the entire social structure of the Empire, which was based around the various millets,national groups, to which all subjects belonged. Therefore, status and legal capacity in the Empire was conditioned by religious adherence. See Stanford J. Shaw, History of the Ottoman Empire and Modern Turkey (Cambridge: Cambridge University Press, 1976), 1:151–53.
See Nussbaum, A Concise History of the Law of Nations, 54–58. It should not be thought that “Capitulations” were only granted by the Muslim powers in that region. Christian communities in the East (such as the Kingdom of Jerusalem and Christian Armenia) granted similar rights to Western traders. To an extent, therefore, they represented a form of local custom concerning the reception of foreign interests into the community, which transcends the purely religious (Islamic) dimension.
For example, in 1535 the First Franco¨CTurkish Capitulation provided that merchants, their agents, and servants “shall have the right to practice their own religion.”
Thus the Treaty of Carlowitz and the Treaty of Passerowitz extended to the Austrian Emperor the tight, previously enjoyed solely by the French, to intercede on behalf of all Roman Catholics, and the Treaty of Kutschuk¨CKainardji was understood by the Russians to grant them the right to intercede on behalf of all Orthodox believers. The right of “intercession” was interpreted as placing believers¡ªCatholic and Orthodox¡ªunder the “protection” of the relevant power. See Nussbaum, A Concise History of the Law of Nations, 122.
See Shaw, History of the Ottoman Empire, 189, 250.
Thus in article 1 of the Protocol of St. Petersburg (76 CTS 175) (1826), Russia and Great Britain agreed that Greece should become a tribute-paying dependency of the Ottomans, within which there would be “a complete liberty of Conscience.” However, in 1830 the Conference of London established an independent Kingdom in which all subjects, of whatever religion, were to be eligible for all forms of public office and employment “on the footing of perfect equality, without regard to difference of creed, in all their relations, religious, civil or political” (Third Protocol of 1930 of the Conference Relative to the Independence of Greece between France, Great Britain and Russia, 80 CTS 327).
However, the Isahat Fermani of 1856 promised throughout the Empire “energetic measures to ensure to each sect, whatever the numbers of its adherents, entire freedom in the exercise of religion” and outlawed discrimination on religious grounds. The free profession of any religion was to be assured and “no one shall be forced to change his religion” See Stanford J. Shaw and Ezel K. Shaw, History of the Ottoman Empire and Modern Turkey (Cambridge: Cambridge University Press, 1977), 2: 124–28.
Treaty between Austria Hungary, France,Germany,Great Britain, Italy, Russia, and Turkey for the Settlement of Affairs in the East, signed 13 July 1878 at Berlin, 153 CTS 171.
Ibid., art. 5.
Ibid.
Ibid., art. 26. All contracting states with the exception of the Porte and England had already recognized Montenegro.
Ibid., art. 35.
Ibid., art. 44.
Ibid., art. 34 and art. 43, respectively. In the case of Romania an additional stipulation was that “the subjects and citizens of all the Powers, traders or otherwise, shall be treated in Romania, without distinction of creed, on a footing of perfect equality.”
Ibid., art. 62.
Ibid., art. 25.
Convention between Austria-Hungary and Turkey, Relative to the Occupation of Bosnia-Herzegovina, 1879 (155 CTS 59), art. 2: “The freedom and outward exercise of all existing religions shall be assured to persons residing or sojourning in Bosnia and the Herzegovina.” This was reaffirmed following the Austro-Hungarian annexation of the territory in 1908 (Protocol between Austria-Hungary and Turkey Relating to Bosnia-Herzegovina and the Sandjak of Novi Pazar, 1910, art. 4, 208 CTS 355).
The situation in Romania was particularly volatile since the Romanian Organic law of 1866 discriminated against non-Christians by rendering them ineligible for citizenship, and Romania possessed a large Jewish population, which was rapidly expanding due to emigration by Jews seeking to escape from Russian anti-Semitism. Making recognition conditional upon the implementation of these guarantees was intended to ensure that religious tensions would not precipitate further interventions. In fact, they very nearly precipitated the very eventuality they were designed to forestall, and the threat of intervention by Britain and France was needed to induce Romania to repeal the discriminatory provisions, following which recognition was granted by all the Contracting states. See Georges Castellan, History of the Balkans from Mohammed the Conqueror to Stalin (New York: Columbia University Press, 1992), 340–41.
Although the treaties that terminated the Balkan Wars of 1912–13 did not contain any provision regarding the free practice of religion, the Balkan states subsequently concluded a series of bilateral treaties with Turkey, each of which included elaborate provisions dealing with the rights of the Muslim population to the free practice of their religion, the maintenance of religious foundations, and the jurisdiction of Muslim religious courts. Indeed, the Treaty that was concluded with Bulgaria even exempted the Muslim population from any obligation to pay military taxes and to undertake military service.
See Jacques Fouques-Duparc, La Protection des Minorit¨¦s de Race, de Langue et de Religion (Paris: Libraire Dalloz, 1922), 99–113.
For a detailed study see Nathan Feinburg, La Question des Minorit¨¦s ¨¤ la Conference de la Paix de 19191920 et l’action Juive en faveur de la Protection International des Minorit¨¦s (Paris: Rousseau et Cie, 1929).
It also provided a model for clauses inserted into the peace treaties concluded with Germany, Austria, Hungary, and Bulgaria and for a series of declarations that were made upon their joining the League of Nations by Albania, Lithuania, Estonia, Latvia, and Iraq. See Evans, Religious Liberty and International Law in Europe, 135–42.
See Acquisition of Polish Nationality, Advisory Opinion, PCIJ Series B, No. 7:17 (1923) and Treatment of Polish Nations and Other Persons of Polish Origins or Speech in the Danzig Territory, Advisory Opinion, PCIJ, Series A/B, No. 44, 39 (1932), which suggest that the League’s guarantee of minority rights under article 12 extended to the free exercise of religion under article 2, but not to the same rights of non-minority groups.
The Greek Minorities Treaty, LNTS 711 (1920) contained a modified version of the “Jewish clauses” as article 10 and new articles concerning Muslim communities (art. 14), the Monks of Mount Athos (art. 13), and religious autonomy of the Vlachs of Pindus (art. 12). A separate provision relating to the Jews of Salonika was mooted, but not pressed. The Yugoslav Minorities Treaty, LNTS 39 (1919), contained special measures for Muslims (art. 10). The Romanians pressed hard and successfully to ensure the deletion of the Jewish clauses from the Romanian Minorities Treaty, LNTS 140 (1919), but it did include special measures for the Saxons and Szeklers (art. 11).
See generally David H. Miller, The Drafting of the Covenant, 2 vols. (New York: Putnam’s Sons, 1928).
Supplementary Agreement 7, as subsequently modified. See Miller, The Drafting of the Covenant, 1:53, 2:67. This, of course, owes a debt to the First Amendment to the US Constitution of 1791.
Miller, ibid., 1:323–24.
See Francis P. Walters, A History of the League of Nations, 2 vols. (London: Oxford University Press, 1952), 1:64, who observed that “the Japanese argument combined disconcertingly, from the British and American point of view, the qualities of being unanswerable and unacceptable. The only course, therefore, was to abandon both.”
On the drafting of article 18 of the UDHR, see Martin Scheinin, “Article 18,” in The Universal Declaration of Human Rights: A Common Standard of Achievement, ed. Asbjorn Eide and Gudmundur Alfredsson (Boston: Martinus Nijhoff, 1999), 379–82; Evans, Religious Liberty and International Law in Europe,183–93.
For instance, the Danish member of the UNGA 3rd Committee abstained in the vote adopting the text of the article because “it could be seen that the various delegations would interpret the provisions of the declaration in different ways” (GAOR, 3rd Sess., pt. 1,407 [1949]).
On the drafting of article 18 of the ICCPR, see Marc J. Bossuyt, Guide to the Travaux Pr¨¦paratoires of the International Covenant on Civil and Political Rights (Boston: Martinus Nijhoff, 1987), 351–71.
CCPR/C/21/Rev.l/Add.4, adopted on 20 July 1993. An analysis of the work of the Human Rights Committee is beyond the scope of this paper. For detailed examinations, see Bahiyyih G. Tahzib, Freedom of Religion or Belief Ensuring Effective International Legal Protection (Boston: Martinus Nijhoff, 1996), 249375; for a more concise overview, Natan Lerner, “Religious Human Rights under the United Nations,” in Religious Human Rights in Global Perspective: Legal Perspectives, ed. Johan D. van der Vyver and John Witte, Jr. (Boston: Martinus Nijhoff, 1996), 94–100; Evans, Religious Liberty and International Law in Europe, 207–26; and Malcolm D. Evans, “The United Nations and the Freedom of Religion: The Work of the Human Rights Committee,” in Law and Religion, ed. Rex Adhar (Aldershot: Ashgate, 2000).
UN Doc. E/CN.4/Sub.2/200/Rev.1. As with the Minorities Treaties, the origins of this report lay in pressure from Jewish lobby groups. See Natan Lerner, “Towards a Draft Declaration against Religious Intolerance and Discrimination,” Israel Yearbook of Human Rights 11 (1981): 83.
UNGA Res. 1780 (17), 7 December 1962.
UNGA Res. 1781 (17), 7 December 1962.
The background to the 1981 Declaration and its subsequent interpretation are considered by Tahzib, Freedom of Religion or Belief 122–212; Evans, Religious Liberty and International Law in Europe, 227–61; Lerner, “Religious Human Rights under the United Nations,” 114–23; Donna Sullivan, “Advancing the Freedom of Religion or Belief through the UN Declaration on the Elimination of Religious Intolerance and Discrimination,” American Journal of International Law 82 (1988): 487–520; Brice Dickson, “The UN and Freedom of Religion,” International and Comparative Law Quarterly 44 (1995), 344–52.
The mandate of the Special Rapporteur was established in Commision on Human Rights Resolution 1986/20 (1986). For the background, see David Weissbrodt, “The Three `Theme’ Special Rapporteurs of the UN Commission on Human Rights,” American Journal of International Law 80 (1986): 697. It was most recently renewed for a three-year period in 2001 (see Commision on Human Rights Resolution 2001/42, [E/CN.4/RES/2001/42, adopted 23 April 2001]) and the title of the mandate changed from “Special Rapporteur on Religious Intolerance” (as it had become customary to refer to it) to “Special Rapporteur on Freedom of Religion or Belief.” This is a more neutral title and the Special Rapporteur himself had requested the change some years earlier (see his Report to the 54th Session of the Commission on Human Rights, E/CN.4/1998/6, paras. 104–5).
See Ruth B. Russell, A History of the United Nations Charter: The Role of the United States 1940–1945, (Washington, DC: The Brookings Institute, 1958), 41–42.
Ibid., 977.
For example, the European Court of Human Rights now endorses the general proposition that “as enshrined in Article 9, freedom of thought, conscience and religion is one of the foundations of a `democratic society’ within the meaning of the Convention [ECHR]. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it” (Kokkinakis v. Greece, 17 EHRR 397 [1994] [ECtHR 260-A, 25 May 1993], para. 53).
The Times, 1 December 1999.
Ibid.
For a different perspective, see David Martin, Does Christianity Cause War? (Oxford: Clarendon, 1997), who argues that it is not so much religion but the degree of identification between the state and organized religion that conditions the extent to which religion either has, or is perceived as having, the propensity to “cause” war. Noting the historical drift towards greater differentiation between the state and religion, Martin takes the view that “the historical period when religion might plausibly be indicted as itselfan issue about which men or monarchs might go to war is long past. Since the seventeenth century the involvement of religion in wars has been largely as one marker of national identity, though a major one” (104, emphasis in original).
Samuel P. Huntington, The Clash of Civilizations and the Remaking of World Order (New York: Simon and Schuster, 1996). Subsequent page references are to the 1998 edition published in the UK by Touchstone Books.
Ibid., 42. Huntington goes back to Herodotus in his support of this proposition. If some within the western world find this difficult to accept, it might be because, as Huntington notes, modern western civilization is unique among (his) civilizations in not having given birth to one of the current major world religions (54).
Joint Declaration, Preamble, para. 1. The Joint Declaration, Official Common Statement, and other pertinent documents are available online at <http://www.lutheranworld.org/SpecialEvents/Justification/ OfficialDocuments.EN.html>.
The Times, 1 November 1999.
The essence of this is set out in the Joint Declaration, para. 15, which reads: “Together we confess: By Grace alone, in faith in Christ’s saving work and not because of any merit on our part, we are accepted by God and receive the Holy Spirit, who renews our hearts while equipping and calling us to good works.”
Joint Declaration, para. 42. At the same time, this suggests that a number of them were pointless.
Ibid., para. 41. This was clearly a matter of some controversy, and the Official Common Statement, para. 2, clarified the matter by asserting that “the earlier mutual condemnations do not apply to the teaching of the dialogue partners as presented in the Joint Declaration” (emphasis added). See also the Annex to the Official Common Statement, para. 1.
Ibid., para. 7.
There is currently something of a trend for church leaders to offer apologies and seek repentance for the historic wrongs of their churches, but it seems as if the Reformation and the resistance to it is not (yet?) seen as something to be sorry for, even if the wars and devastation which followed in its wake are doubtless considered to be a matter for sorrow and regret.
Joint Declaration, para. 7.
Ibid.
Thus Martin concludes: “The great world religions together with the two or three secular universalisms (themselves metamorphoses of religious logic), are all mutually irreconcilable. To that extent the aspiration to peace is itself a source of conflict¡ we are all of us trapped in the paradox of `wars to end wars.’ It is our human condition.” Martin, Does Christianity Cause War? 160.
For example, the “French Intervention” on behalf of Maronite Christians in what is today Lebanon. See Ian Brownlie, International Law and the Use of Force By States (Oxford: Clarendon, 1963), 339–40.
See, for example, the 1878 Treaty of Berlin, art. 34 and art. 43.
See Evans, Religious Liberty and International Law in Europe, chap. 4.
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Evans, M.D. (2004). Historical Analysis of Freedom of Religion or Belief as a Technique for Resolving Religious Conflict. In: Lindholm, T., Durham, W.C., Tahzib-Lie, B.G., Sewell, E.A., Larsen, L. (eds) Facilitating Freedom of Religion or Belief: A Deskbook. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-5616-7_1
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