Religious minority protection and the law of international intervention (completed)

Stefan Kroll

Protecting religious minorities has, since the peace of Westphalia, been a major justification for international intervention. While the Westphalian system is often said to be premised upon the principles of state sovereignty and non-intervention, these principles were never understood as absolute. Both state practice and international legal theory contradict the assumption that European international law was a positivist legal order as applied among European states. Thus, even in the 19th century, legal universalisms in the traditions of natural law or international solidarity continued to provide justifications for violating the principle of non-intervention , and international legal theorists developed doctrines of legitimate interventions into other states’ sovereignty. The project analyses the role of religious minority protection in these legal practices and discourses.

Historically, the project focuses on the 19th and early 20th century, i.e. the formative period of a global framework of international law. Although interventions on behalf of minorities’ religious freedom were considered legitimate in the preceding centuries, in the 19th century religious freedom seized to serve as an independent ground for international intervention within Europe. However, in cases where Christian minorities or missionaries were to be protected in non-Christian environments, European international legal scholars seem to have shared the view that intervention may be necessary and justified. This asymmetry is indeed characteristic of the overall process of European expansion. Based on systematic analyses of international treaties and international legal discourse, the project analyzes how religious freedom was interpreted within these asymmetric constellations. It scrutinizes, in particular, whether the universal stipulation of religious freedom in multilateral agreements, like in the case of the Berlin treaty of 1878, was meant to protect Christian coreligionist (traders, missionaries, consuls) in non-Christian regions rather than to support peaceful inter-religious coexistence as the wording of single articles may (in today’s reading) imply. In doing so, the project contributes to uncovering important historical layers of contemporary discourses of religious freedom in international law.

The project is based on preliminary research on the history of humanitarian intervention conducted at the Munk School of Global Affairs in Toronto (2011/12) and the Max-Planck-Institute for European Legal History in Frankfurt (summer 2012). During the 7-month period of the fellowship it shall support and complement the research of the Max Planck Fellow Group “Governance of Cultural Diversity – Socio-Legal Dynamics”.

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