Religious Reasons For International Norms

A comparable situation to the use of religious reasons in legislation arises when religious reasons underpin a state's international obligations, or when religious reasons or religious institutional involvement influence the formulation of interna­tional documents. Because religions typically espouse a comprehensive value system of gender differentiation, their involvement will entail a systematic influence on the development of international law in regard to the rights of women. The Catholic Church is in a legally unique position to influence such developments, because of its centralized structure and its status in interna­tional law. Other religions may also exert influence through states.

An example of how religious obligations might influence the creation of interna­tional law is seen in the opposition by some of the delegates of proposals for the inclusion in the Universal Declaration of Human Rights of equal rights of men and women to contract or dissolve a marriage. These were delegates of states bound by laws based on Concordats with the Church, which created obligations in respect of religious marriage and divorce. These would not permit them to accept the pro­posed text. The right was finally mentioned in Article 16, which states that men and women are 'entitled to equal rights as to marriage, during marriage and at its dissolution'. The reliance on the Concordats in the negotiations, however, sug­gests that pre-existing international law treaties, which had already absorbed much of religious tenets (in this case, of Catholic doctrine) had already shaped the consti­tutional structure of the rights of men and women in states.

An example of institutional religious involvement in the formulation of interna­tional documents relating to the rights of women occurred when the Vatican was one of the most active participants in the Cairo Conference, objecting to all references to human rights of abortion and contraception. The Holy See stated in a reservation to the final document of the Cairo Conference that it understood that the document does not affirm a new international right to abor- tion. The Vatican also participated in the 1995 UN Beijing Conference on Women, but lobbied China to ban reformist Catholic groups, which support women's equality, from participating in it.

The influence of religious bodies on formulation of international law affecting women's freedom of conscience and religion is evident also in the Rome Statute for the International Criminal Court. The statute includes several gender- specific offences. Important in its implication of religious attitudes is the offense of forced pregnancy, in Article 7(2)(f) : '"Forced pregnancy" means the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy.' The wording was controversial, as the inclu­sion of the limitation that the woman was 'forcibly made pregnant' means that confinement of a woman who is pregnant by consensual sex will not be a crime under the statute. The limitation was included at the behest of the Vatican.

Thus, institutional religious involvement in formulating international human rights documents (or documents which affect human rights) is problematic. The strongest argument against this involvement is in the case of direct involvement of religious organizations. A somewhat weaker argument exists where states rely on religious arguments. After all, it may be argued that every party to the drafting process brings with it some preconceived ideological notion, and a religious approach is no less legitimate than any other. However, the nature of institutional religious involvement is different where the rights of women are at issue, as religions have not just a preset conception on particular issues but a comprehen­sive and non-negotiable set of conception about gender roles.