1 Janis, Mark W., The Influence of Religion on the Development of International Law (1991)Google Scholar [hereinafter The Influence of Religion).

2 I am director of a working group on religion, nationalism and intolerance at the Institute that is currently examining, in the light of the UN Declaration against Intolerance and Discrimination, several countries afflicted with religious intolerance.

3 See Humphrey, John P., Human Rights and the United Nations: A Great Adventure 67 (1984)Google Scholar.

4 See Sieghart, Paul, The International Law of Human Rights 75 (1983)Google Scholar:

The principle of non-discrimination is fundamental to the concept of human rights. The primary characteristic which distinguishes “human” rights from other rights is their universality: according to classical theory, they are said to “inhere” in every human being by virtue of [one’s] humanity alone. It must necessarily follow that no particular feature or characteristic attaching to any individual, and which distinguishes [one] from others, can affect [one’s] entitlement to … human rights, whether in degree or in kind, except where the instruments specifically provide for this for a clear and cogent reason. … [emphasis added]

5 See Garvey, John H., Introduction: Fundamentalism and Politics, in Garvey, Fundamentalisms and the State (1993)Google Scholar:

There is a certain way of thinking about law and politics that is characteristic of modern industrial nations … I will call this habit of thought the public/private distinction. Its central premise is that social life can be divided into public and private realms. The function of government is to regulate behavior in the public sphere according to secular rules. Within the private sphere people are free to do as they like, in religious and other matters, [emphasis added]

6 The words, “directly” and “indirectly” are important in this connection. Even in a “secular state,” there are obvious indirect ways in which public authorities are permitted to control religious practices (though not religious belief); that is, insofar as given religious practices are held to violate “the fundamental rights and freedoms” of others, or to violate “public safety, order, health, or morals” (Declaration against Intolerance, Article 1.3; International Covenant on Civil and Political Rights, Article 18.3). The latter “limitations” on free exercise, as they are called (safety, order, health and morals), are, it must be admitted, rather elastic and open-ended, as they stand. As such, clauses of this sort pose a potential threat to human rights guarantees because they can easily be used as pretexts to subvert human rights by reintroducing discriminatory standards. This is a complex and sensitive area in both international and domestic law.

7 Mark Janis rightly recalls those illustrious figures, Vitoria and Suarez (not to mention Gentili), who preceded Grotius, and upon whom he drew so copiously: “Historically, it is impossible to find a start to any of the strands which have come to be woven together into the modern fabric of international law,” Religion and the Literature of International Law: Some Standard Texts, in Janis. The Influence of Religion, at 61. Elsewhere, however, Janis himself refers without qualification to Grotius as “the founder of modern international law,” Introduction to International Law at 35. Whatever the role of his spiritual forebears, Grotius’s special importance is surely due to the fact that he put the idea of a prior universal, “natural” law, an idea with an unquestionably long and venerable history, to work under novel and compelling circumstances in the seventeenth century. These circumstances were, of course, the result of the dissolution of the medieval system that rested upon a unified political and ecclesiastical authority.

8 Hugo Grotius, The Law of War and Peace (A. C. Campbell trans., M. Walter Dunne 1979).

9 See Tuck, Richard, Natural Rights Theories; Their Origin and Development 79 (1981)Google Scholar.

10 Jordan, W. K., The Development of Religious Toleration in England I 37 (1965)Google Scholar:

International toleration results from the increased power of the national states. The acceptance of the theory of sovereignty by the nations of Europe permitted no distinction in law between a Catholic and a Protestant country. … The Peace of Augsburg likewise witnessed the definite abandonment of the theory that no heretic might rule a Christian state. The possibility or the validity of occasional persecution was not abandoned, but the ideal of medieval intolerance was definitely discarded. The establishment of the right of migration, though it was held that unity of religion was essential to the welfare of the State, was tantamount to the admission that no real ground could be found for the execution of an heretic for the sake of his soul. … The theory that one religion is needful to the State, but that it might vary as between States, was a distinct step toward the modern theory that the State exists indifferently to confessional distinctions (I, 36).

11 “The Peace of Westphalia recognized the full territorial sovereignty of the member states of the empire. They were empowered to contract treaties with one another and with foreign powers. … by this and other changes, the princes of the empire became absolute sovereigns of their own dominions.” Westphalia, Peace of, Encyclopaedia Britannica (15th ed. 1992).

12 The theory represents approval of the dominance of civil authority in all punitive measures and, by extension, complete dominance of the State over the church. …” Columbia Encyclopedia 666 (3d ed. 1963).

13 See Walker, Williston, A History of the Christian Church 450 (1918)Google Scholar.

14 See FIGGIS, N., Churches in the Modern State 214 (1914)Google Scholar. “Persecution for the sake of political reasons was upheld since the age-old union between Church and State was retained, and it was very clearly regarded as unsafe to the body politic to permit the existence of more than one religion within a given State.” [emphasis added]. (JORDAN, supra note 10, at I, 36.

15 Supra note 8, 11, at 20, xlviii (pp. 253–54).

16 Id. at 20, xliv (p. 250).

17 Grotius, Hugo, Prologomena to the Law of War and Peace 10 (1957)Google Scholar [hereinafter Prolegomena]. That Grotius in this passage resists making the concession, is, logically speaking, a separable point.

18 Therefore, I differ somewhat with Mark Janis when he says: “[Grotius’s] theory of a law of nations based on the consent of sovereigns was meant to be more or less religiously neutral. However, from a reading of his text, it is doubtful that Grotius meant to be or was irreligious or secular” (Janis, “Religion and the Literature of International Law,” p. 63). As it stands, the statement is rather imprecise. First, it is not just Grotius’s “theory of a law of nations” that is at issue, but also, and more fundamentally, his “theory of natural law.” Secondly, it is not a matter of whether Grotius himself “meant to be irreligious or secular,” but what he meant his natural law theory to be. He certainly did not think his theory to be “irreligious,” because he believed that natural law and divine law were consistent with each other (see, e.g., II, 20, xlix (p. 254)). But he had to mean that his theory was “secular,” in the sense that its authority for human beings is not exclusively dependent upon “things” religious, spiritual, or holy.” That is his whole point in asserting a rational foundation for natural law. Grotius considers his theory consonant with and reenforced by revelation, but that means only that revelation supplies additional support. (See Grotius’s appeal to the self-evidence of natural law obligations, Prologomena 25).

19 Figgis, J. N., From Gerson to Grotius 190 (1956). Cf. 15, p. 221 Google Scholar: “It is of vital importance that Grotius admits the Turkish government to share on an equality in the mass of rights and privileges.”

20 Supra note 17, at 18.

21 Supra note 19, at 185.

22 Supra note 8, 1, at 3. viii (p. 68).

23 Id. II, at 20, xlvi, xliv (pp. 250, 252).