Religious Actors and International Law

Scholars and practitioners of international law are constantly faced with the conundrum that international legal regimes designed to mitigate some of the international system’s worst problems are frequently circumvented when it suits state interests to do so. The plot thickens when you consider the role of religion in international law, especially in the international human rights regime. Are universal human rights compatible with religious convictions, or do they undermine religiously particular communities? For example, can the Convention on the Rights of a Child, which grants children the right to an education that supports the charter and principles of the United Nations (Article 29) be compatible with private religious education? Should religious communities, or religious states, be exempt from international legal human rights standards that conflict with their convictions?

Ioana Cismas’ recent book, Religious Actors and International Law, seeks to sidestep the debate about whether religion is compatible with international law, instead focusing on whether religious actors—including states, non-state actors, or international organizations—enjoy special protection under international law. From my perspective, she makes two notable contributions to the body of literature concerned with understanding the universal applicability of international law, and prompts us to ponder whether religious actors’ claims to unique sources of legitimacy alter their rights, duties, and obligations under international law.

First, a large portion of the book is devoted to the task of developing the analytical category of religious actors. Most generally, Cismas considers any state, non-state, or interstate actors that grant religion a special place in their functioning to be religious actors (51). More specifically, state religious actors like the Islamic Republic of Iran assume the authority to interpret religion and use that interpretation as a primary source for making and enforcing laws (52). Non-state religious actors like the Russian Orthodox church or the Jehovah’s Witness use religion, and the authority to interpret religion, as a tool for governing their members (53–54). Finally, intergovernmental religious organizations like the Organization of Islamic Cooperation use religious authority to govern interactions between member states. The analytic rigor of her typology of religious actors not only clarifies her following analyses, it provides future researchers with an innovative analytic method of considering the intersection of religion and international law that does not rely on theological exposition.

Second, her three extensive case studies apply this analytical category to non-state religious organizations (chapter 3), the Holy See as a state-like entity (chapter 4), and the Organization of Islamic Cooperation as an international organization (chapter 5). Of the three case studies, the chapter on the Holy See was clearly the most analytically challenging, and from my perspective the most perplexing and interesting. She demonstrates how the dual personality that the Holy See claims, both as a state that commits to international treaties and as the official government of the Roman Catholic Church, prevents it from fully acknowledging and implementing its international legal obligations. She claims that the Holy See shifts between these two personae “at will according to need,” so that it can have the privileges typically restricted to states, but denying that it has the corresponding obligations of states (237).

To build on these contributions, there are two issues I hope Cismas devotes more time to addressing in future works that build on this seminal piece of scholarship. First, I hope to see greater attention given to a class of actors who were largely undiscussed in the book—NGOs and other private organizations with religious affiliations. I anticipated that these organizations would be discussed in the chapter on religious organizations, but that chapter was more focused on what we could typically consider church-based organizations and/or denominations. For example, my own work investigates how religiously affiliated adoption agencies set standards for international adoptions and influence state behavior as they consider whether intercountry adoption can provide a solution to their domestic child welfare crisis. These organizations do not have members, per se, nor do they focus on interpreting scripture. Rather, they serve as religiously affiliated service providers. Yet I am interested in how Cismas might classify their relationship with international law. For example, is it permissible under international human rights law for a religiously affiliated adoption agency to limit adoption service provision exclusively to heterosexual couples based on religious conviction? Does international law treat such organizations differently from their non-religious counterparts? Although I anticipated being able to answer this question through Cismas’ research, I did not find this class of actors sufficiently addressed to provide a satisfactory answer.

And second, I hope future work more extensively addresses the discrepancy between how the international legal regime works in theory, treating religious and non-religious actors the same, and the special circumstances that undermine this claim. Cismas demonstrates consistently that any difference in legal treatment stems from the fact that religious organizations are essentially collectives of religious rights-bearing individuals (151). Yet chapter three provides numerous examples of surprising rulings that seem to undermine this claim to equal treatment under the law. This tension is also present in the challenging analysis of the dual nature of the Holy See. Cismas claims that some states and certain treaty bodies have “only recently recognized that the human rights obligations of the Holy See are legal, not merely moral” (238). In the conclusion, Cismas again reiterates that the Holy See is consistently recognized as a special actor, and the method of holding the Holy See accountable to their treaty obligations is still in flux (309). I look forward to seeing how her future work will further delineate these difficult inconsistencies in the application of international law.

This book is an excellent choice for legal scholars who will undoubtedly be impressed with the sophisticated legal analysis and the in-depth case studies. It should also intrigue political scholars who are interested in the intersection between international law and religion. But because the book is targeted to a specialized audience familiar with the particularities of international legal research, and uses specialized legal jargon, the book is probably less accessible for a non-scholarly audience. Despite this challenge, the book is an important contribution to the body of literature addressing the twin problems of facilitating religious actors’ commitment to and compliance with international law.