The struggle for religious freedom is the oldest of all movements for international human rights. Nonetheless, religious freedom remains the most problematic of all human rights. Despite treaty protections for religious rights stretching from the Treaty of Westphalia (1648) to the European Convention on Human Rights (1950) and beyond, the role of customary international law remains considerable. For example, how does one define such rights as the freedom to establish religious institutions, the right to practice a religion, and the right to preach and spread a religion? The definition and enforcement of these and other religious rights all depend on customary international law. Indeed, customary international law is vital in protecting religious liberties, threatened world-wide by hostile state practices.<\/p>\n
What is customary international law? There are about as many theories about the nature of customary international law as there are international lawyers. I elaborate my approach to customary international law in my treatise, International Law<\/em>, 7th\u00a0<\/sup>Edition (2016), Wolters Kluwer. I believe that customary international law is more an art than a science. (p. 46) Customary international law is determined on the basis of an historical record of consistent state practice and a psychological element sometimes termed opinio juris<\/em>. \u201cOpinio juris\u00a0<\/em>may be thought of as a solvent that transforms the nitty-gritty of a historical rendition of examples of state practice into a more liquid form: a rule of customary international law that may be applied to current problems.\u201d (p. 48) So far, my approach is reasonably common amongst international lawyers. However, I go a little further and suggest that \u201cjurists and judges, rather than states, are often more helpful sources for expressions of opinions that international practice has at some stage become customary international law.\u201d<\/p>\n Looking more at the opinio juris\u00a0<\/em>of jurists and judges than that of states is especially valuable in discerning the customary international law of religious freedom. For thousands of years, the religious liberties of minority religions have been violated by states, who often despite their treaty commitments, actively enforce the preferences of their majoritarian religions. State practice may in do more to contradict a rule of religious toleration than to promote it. Indeed, an alliance between the power of the state and the majoritarian religion has been more common than not, each buttressing the other. Typically, minority religions are viewed as threats both to the unity of the state and to the dominance of the majoritarian religion. This is a common thread from antiquity to the present day. Even the European Court of Human Rights, usually a staunch protector of many other international human rights, gives unusual and undue weight to the protection of the religious sensibilities of a state\u2019s majoritarian religion, rather than to protecting minority faiths. This turns the European Convention on Human Rights, ordinarily employed to shelter the strong against the weak, on its head.<\/p>\n Europe traditionally has been hostile to religious freedom. From the Roman Empire to the present day, the Continent has witnessed one after another bloody religious struggle. Rome at first violently suppressed Christianity. Christianity, once established as the state religion dissolved into 1700 years of doctrinal and physical clashes, including the 11th\u00a0<\/sup>century schism between the Rome and the Catholic West and Constantinople and the Orthodox East. There were the horrific wars in the 16th\u00a0<\/sup>and 17h centuries between Rome and the dissenting Protestants.\u00a0 In the 20th\u00a0<\/sup>century, religious bigotry contributed to the slaughter of millions of European Jews. Today anti-Semitism remains a threat alongside widespread European intolerance of Islam. Elsewhere, there are anti-Christian ideologies and practices in many Islamic nations. Majoritarian religious cultures are too often intolerant of religious diversity in Europe and elsewhere.<\/p>\n Remarkably, it took 43 years from the conclusion of the European Convention on Human Rights and Fundamental Freedoms for the European Court of Human Rights to find a state in violation of the Convention\u2019s Article 9. Article 9 provides, inter alia, that \u201cEveryone has the right to freedom to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice, and observance.\u201d The landmark case from the Strasbourg Court was Kokkinakis\u00a0<\/em>(25 May 1993), where the right of Mr. Kokkinakis to manifest his religion as a Jehovah\u2019s Witness by preaching to the public was upheld against Greece. The Court held that individuals had the \u201cright to try to convince one\u2019s neighbors\u201d to abandon the majoritarian religion for a small dissenting faith.<\/p>\n Sadly, Kokkinakis\u00a0<\/em>has not been much followed in the Court\u2019s practice. Instead, Strasbourg has used Article 9 to protect the sensibilities of the majoritarian religion against minority views or denominations.\u00a0So, for example, in Otto-Preminger\u00a0<\/em>(20 September 1994) the Court upheld Austrian suppression of a movie that mocked the Roman Catholic religion. In doing so, it stressed that the \u201cCourt cannot disregard the fact that the Roman Catholic religion is the religion of the overwhelming majority of Tyrolians.\u201d More of the same followed in\u00a0Murphy <\/em>(10 July 2003) where the Court permitted Ireland to prohibit a Protestant radio broadcast in that Roman Catholic state because that prohibition was \u201cprudent\u201d. And in Lautsi\u00a0<\/em>(18 March 2011) the Court overturned the decision of a chamber when it upheld the right of Italy to require the display of a crucifix in public classrooms, rejecting the application of non-believing parents on the grounds that there was \u201cno evidence\u2019 that such a display could \u201chave an effect on young persons\u201d.<\/p>\n Examples could be multiplied across Europe and, more broadly, across the globe. In short, majoritarian religions are often supported by the state, and in turn support the state. The role of formal international law and international courts in protecting minority persuasions has been and remains limited. It is only in the opinions of jurists in constituting opinio juris\u00a0<\/em>in customary international law, where international law comes out strongly for religious freedoms. Whether or not this alone can make up any form of customary international law depends greatly on the theoretical approach to customary international law held by any of us.<\/p>\n <\/p>\n