* Of the Board of Editors.

This essay is a draft of part of a forthcoming book. The author wishes to express his appreciation to Judge Rosalyn Higgins and Professors Philip Allott, Ruth Lapidoth, Dianne Otto and Lilly Sucharipa, as well as to his research assistant Timothy Rhodes.

The research for this article was facilitated by a sabbatical granted by the author’s faculty and a scintillating academic year as a Fellow of Trinity College, Cambridge, and at the Lauterpacht Research Centre for International Law. Additional funding was provided by the Filomen D’Agostino and Max E. Greenberg Research Fund of New York University School of Law.

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2 For evidence of changing attitudes in the United States, see John, Blake, Presbyterians Vote to Keep Transsexual Minister in Fold , Atlanta J. & Const., Oct. 23, 1996, at A5C Google Scholar; for China, see Uli, Schmetzer, Sex Change Perilous in China; Leading Dancer Wins Battle , Chic. Trib., Jan. 20, 1996, at N4 Google Scholar; for the United Kingdom, see Jojo, Moyes, When a Man Loves Being a Woman , Independent (London), Feb. 22, 1997, at 19 Google Scholar.

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7 Report of the Human Rights Committee, General Comment No. 22(48) (art. 18), Annex VI, at 208, UN Doc. A/48/40 (pt. I) (1993).

8 Id.

9 Id. at 208-09.

10 Id. at 210.

11 Saint Thomas Aquinas “resists the forced conversion of Jews and pagans,” in David, A. J. Richards, Toleration and the Constitution 88 (1986)Google Scholar (citing Thomas Aquinas, Summa Theologiae 2a2ae.10, 8, at 61-65 (Thomas Gilby trans., McGraw-Hill 1974)).

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21 1 W. & M., ch. 18 (Eng.).

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24 Id.

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27 Id. at 203. No citation is given.

28 Thomas, Jefferson, A Bill for Establishing Religious Freedom , June 12, 1779, in 5 The Founders’ Constitution, supra note 25, at 77 Google Scholar.

29 Id

30 India Const. §25 (amended 1950).

31 S. Afr. Const. §§9(3), 15.

32 David, Ziskind, Labor Provisions in Constitutions of Europe , 6 Comp. Lab. L. 311, 374 (1984)Google Scholar. Examples include England, Greece, and much of Scandinavia and of the Islamic world.

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38 Robert, Wuthnow, Quid Obscurum: The Changing Terrain of Church-State Relations , in Religion and American Politics, supra note 33, at 337, 347 Google Scholar.

39 Richards, supra note 11, at 85. See id. at 85-102.

40 See Augustine, supra note 12; Richards, supra note 11, at 87-88. See also Peter R. L. Brown, Religion and Society in the Age of Saint Augustine 260-78 (1972).

41 See Slaughter, M. M., The Salman Rushdie Affair: Apostasy, Honor, and Freedom of Speech , 79 Va. L. Rev. 153, 154 (1993)Google Scholar-citation>.

42 Professor Nasr Abu Zeid and his wife, Ibtihal Younis, also a professor, were ordered to separate because of the husband’s unbelief. Both had fled to the Netherlands, where his life was believed to be in jeopardy. The decision was publicly and vehemently opposed by leaders of Egypt’s Organization for Human Rights as highly destructive of that nation’s emerging civil society. N.Y. Times, Aug. 6, 1996, at A6. It was subsequently suspended by Egypt’s highest court. N.Y. Times, Dec. 20, 1996, at A17. See Judith, Miller, New Tack for Egypt’s Islamic Militants: Imposing Divorce , N.Y. Times, Dec. 28, 1996, at 22 Google Scholar.

43 Paul, Mojzes, Religious Liberty in Eastern Europe and the USSR: Before and After the Great Transformation 38-48 (1992)Google Scholar-citation>. According to Lenin, from the perspective of the state, religion ought to be a private affair, but from the perspective of the Party, religion must be fought. Lenin, V. I., To the Rural Poor , in 6 Collected Works 402 (1972)Google Scholar.

44 Mojzes, supra note 43, at 41-42.

45 Id. at 44.

46 UN GAOR 3d Comm, 3d Sess., 91st mtg., pt. I, at 49 (1948).

47 Id a t 391, 396.

48 Id. at 402.

49 Id. at 403.

50 Id. at 399.

51 Id. at 397.

52 Id. at 406. The five votes were cast by Afghanistan, Iraq, Pakistan, Saudi Arabia and Syria.

53 UN GAOR, 3d Sess., 182d plen. mtg., at 891 (1948).

54 Id. at 890.

55 UN GAOR, 3d Sess., 183d plen. mtg., at 913 (1948).

56 Barbara, Crossette, Vatican Drops Fight Against U.N. Population Document , N.Y. Times, Sept. 10, 1994, at A5 Google Scholar.

57 Koran 5:12-18.

58 Id. at 9:3-4, 9:113.

59 Id. at 3:118-19.

60 ICCPR, supra note 4. Saudi Arabia is not a party.

61 GA Res. 36/55, UN GAOR, 36th Sess., Supp. No. 51, at 171, UN Doc. A/36/51 (1981).

62 1981 U.N.Y.B. 880.

63 Dec. 18, 1979, 1249 UNTS 13.

64 See Declaration and Reservations to CEDAW, Multilateral Treaties Deposited with the Secretary-General 169, UN Doc. ST/LEG/SER.E/14 (1995). See also the ratifications of Iraq, id. at 171; Kuwait, id.; and Libya, id. at 172.

65 Note, Kiss of Death: Application of Title VII’s Prohibition against Religious Discrimination in the Kingdom of Saudi Arabia, Byu L. Rev. 399, 408 (1994).

66 Slaughter, supra note 41, at 173.

67 1 Law in the Middle East 72-76 (Majid, Khadduri & Herbert, J. Liebesny eds., 1955)Google Scholar.

68 Slaughter, supra note 41, at 155.

69 Daniel, Pipes, The Rushdie Affair: The Novel, The Ayatollah, and the West 27 (1990)Google Scholar. The Japanese translator of the book was indeed murdered and an attempt was made on the life of the Italian translator. Slaughter, supra note 41, at 160-61.

70 See Slaughter, supra note 41, at 189 and authorities cited therein.

71 Id. at 189.

72 Samuel, P. Huntington, The West: Unique, Not Universal , Foreign Aff., Nov.-Dec. 1996, at 28, 33-34 Google Scholar and accompanying notes.

73 Id. at 37.

74 See Haim, Shapiro, A Wedding Ceremony for the Tel Aviv Yuppie , Jerusalem Post, Aug. 26, 1994, at 8B Google Scholar.

75 See, e.g., Alasdair, Macintyre, After Virtue: A Study in Moral Theory 190-209 (1981)Google Scholar.

76 Michael Reisman, W., Institutions and Practices for Restoring and Maintaining Public Order, 6 Duke J. Comp. & Int’l L. 175, 179-80 (1995)Google Scholar.

77 Frances, H. Foster, Information and the Problem of Democracy: The Russian Experience , 44 Am. J. Comp. L. 243, 265-66 (1996)Google Scholar (citations omitted).

78 Anton, LaGuardia, Nazi Death Camp Guard ‘Is Not Ivan the Terrible,’ Daily Telegraph (London), July 30, 1993, at 8 Google Scholar.

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80 Gustav, Niebuhr, For 360 Years, a Church that Endures , N.Y. Times, Apr. 7, 1996,Google Scholar §1, at 12. But that phenomenon is much less apparent in other “Western” nations, where church adherence, however nominal, has remained consistent even as actual belief in doctrine has withered away.

81 N.Y. Times, Dec. 2, 1996, at A10.

82 Scotsman, Mar. 11, 1997, at 10.

83 Samuel, Huntington, The Clash of Civilizations? , Foreign Aff., Summer 1993, at 22 Google Scholar.

84 Id. at 39.

85 Id. at 32.

86 See Fouad, Ajami, The Summoning , Foreign Aff., Sept./Oct. 1993, at 2 Google Scholar.

87 N.Y. Times, Dec. 28, 1996, at 22.

88 Id.

89 Karim, Abrawi, Letter from Cairo , Guardian (UK), Mar. 3, 1989, at 26 Google Scholar.

90 Michael, Richardson, Malaysia Moves to Rein in Radical Islamic Fundamentalism , Int’l Herald Trib., Oct. 9, 1996, at 4 Google Scholar.

91 Mahnaz, Afkhami & Haleh, Vaziri, Claiming Our Rights: A Manual for Women’s Human Rights Education in Muslim Societies (1996)Google Scholar.

92 Id. at iii.

93 Id. at xii.

94 Stephen, Kinzer, Turkish Women Protest the Koranic Law , Int’l Herald Trib., Feb. 17, 1997, at 9 Google Scholar.

95 Avman, Al-Yassini, Religion and State in The Kingdom of Saudi Arabia 135 (1985)Google Scholar.

96 Ann Elizabeth, Mayer, Universal Versus Islamic Human Rights: A Clash of Cultures or a Clash with a Construct? , 15 Mich. J. Int’l L. 307, 322 (1994)Google Scholar.

97 Interviews with members of the UN Human Rights Committee (Jan.-June 1997).

98 See Regina v. Lemon, [1979] 2 W.L.R. 282.

99 Regina v. Chief Metropolitan Stipendiary Magistrate, Ex parte Choudhury, [1991] 1 Q.B. 429, 447.

100 English attitudes toward blasphemy and heresy have their roots elsewhere in the West, particularly in ancient Greece, Palestine and Rome. There was not much in any of those societies to distinguish their values from those of contemporary instances of communitarian intolerance. Alcibiades, one of the commanders of the Athenian army, was condemned to death for impiety, in 415 B.C., while fighting Sparta. Levy, supra note 22, at 5. Aristotle was convicted of the same offense a century later. Id. at 7. According to the Old Testament, a person “who blasphemes the name of the Lord shall be put to death; all the congregation shall stone him.” Leviticus 24:16. If liberal democratic autonomy and conscientious liberty are peculiarly Western blossoms, they surely were not planted by our mother Athens or father Jerusalem. Toleration was not a sentiment familiar anywhere in Europe before the sixteenth century, certainly not to the Roman Catholic hierarchy or to the Christian monarchies of Europe. By unrelenting persecution, “the Church attained and long kept its catholicity. Its monopoly as the only recognized and established religion was built on murder as well as on the exclusivity of its control of salvation.” Levy, supra, at 46. Punishment for heresy and blasphemy was seen by both church and state as therapeutic. The more severe such punishment, the better, because toleration of conscientious dissent “endangers the unity of society” and “failure to punish the blasphemer might lead to public disturbances.” Id. at 3. Flogging and stoning became the lesser penalties for conscientious dissent in the Judeo-Christian tradition, with death the more common remedy. Heresy, the charge leveled against obdurate objectors to the Christian creed formulated by the Council of Nicea in A.D. 325 and to the Trinitarian theology confirmed by the Council of Chalcedon in A.D. 451, largely replaced blasphemy as the charge brought against conscientious dissent.

The tolerance of the Eastern church was no greater than that of Rome. In the Orthodox Christian church’s Byzantian realm, Emperor Justinian’s Code in 529 made provision for putting blasphemers to death, since “failure to do so tended to cause famine, earthquake and pestilence.” Id. at 50. This repression of dissent was endorsed by Charlemagne and his successors upon the founding of the Holy Roman Empire in A.D. 800. Id.

Augustine advocated death for heretics, but was careful to insist that the state, and not the church, be the one to carry it out. While this kept the ecclesiastical hand technically unbloodied, it linked it firmly to that of the temporal power, assuring that for at least 1200 years such views as those advanced by Roger Williams and Thomas Jefferson would be expressed openly only on pain of burning, hanging, ripping out of tongues, gouging out of eyes, cutting off of ears or lips or various creative combinations of these typically “Western” answers to the free thinkers’ provocations. Levy gives an excruciatingly detailed account of this history. Id. at 46-462. According to Saint Thomas Aquinas, heretics “by right . . . can be put to death and despoiled of their possessions by the secular [authorities], even if they do not corrupt others, for they are blasphemers against God, because they observe a false faith. Thus they can be justly punished more than those accused of high treason.” Id. at 51-52 and accompanying cites. The Reformation in Europe did little to introduce greater tolerance. Calvin, in the sixteenth century, burned dissidents in Geneva, and Luther called for the burning of synagogues and for cutting out the tongues of Jewish blasphemers. Id. at 60-61.

101 4 William Blackstone, Commentaries *59.

102 Taylor’s Case, 86 Eng. Rep. 189 (KB. 1676). The defendant had called Christ a “whore-master” and “bastard” among other things.

103 Levy, supra note 22, at 82-84 and accompanying cites.

104 31 Hen. 8, ch. 14. See David, Feldman, Civil Liberties and Human Rights in England and Wales 686-87 (1993)Google Scholar.

105 Levy, supra note 22, at 86 and accompanying cites.

106 1 Jordan, supra note 22, at 86 (1932).

107 Id. at 88.

108 Professor Levy has written that the debate was opened with the publication by Sebastian Castellio of Basel, a professor of Greek and epic poet, of his Concerning Heretics, “the sixteenth century’s first book on religious liberty.” Levy, supra note 22, at 67.

109 In a collection of unpublished pamphlets in Trinity College Library, Cambridge, No. 289C 80 46, at 8 (1847). The author is Henry MacKenzie, M.A., later the Anglican Bishop of Nottingham.

110 4 Jordan, supra note 22, at 422-23 (1940).

111 Levy, supra note 22, at 89. But see id. at 91.

112 Id. at 99.

113 Sommerville, supra note 13, at 108-09.

114 Id.

115 Levy, supra note 22, at 158.

116 Id. at 111.

117 Id.

118 Id. at 111-15.

119 Id. at 120-21 and accompanying cites.

120 1 W. & M., ch. 18.

121 2 Thomas, Babington Macaulay, The History of England 282 (Everyman ed. 1972)Google Scholar.

122 Ernest, A. Payne, Toleration and Establishment: 1, A Historical Outline , in From Uniformity to Unity 1662-1962, at 255, 259 (Geoffrey, F. Nuttall & Owen, Chadwick eds., 1962)Google Scholar.

123 Daniel Defoe is quoted by Payne as calling it “playing Bo-peep with God Almighty.” He cites Sir Thomas Abney, onetime Lord Mayor of London and Member of Parliament, as an example. Id. at 261-62.

124 Id. at 263 (quoting Neal).

125 9 & 10 Will. 3, ch. 32.

126 Note, Blasphemy, 70 Colum. L. Rev. 694, 696 (1970).

127 13 Anne, ch. 7.

128 5 Geo. 1, ch. 4.

129 Rex v. Woolston, 93 Eng. Rep. 881 (KB. 1729). This case was cited approvingly in New York in 1811 in People v. Ruggles, 8 Johns. 290 (N.Y. Sup. Ct. 1811).

4 Blackstone, supra note 101, at *59.

131 Note, supra note 126, at 698 (citing Patrick, Devlin, The Enforcement of Morals 9-14 (1965)Google Scholar).

132 52 Geo. 3, ch. 155, §1.

133 53 Geo. 3, ch. 160 (repealing 9 Will. 3, ch. 32).

134 The Repeal of the Test and Corporations Acts, 1828, 9 Geo. 4, ch. 17.

135 10 Geo. 4, ch. 7.

136 21 & 22 Vict., ch. 48.

137 See the account of the struggle for Jewish emancipation in Ursula, Henriques, Religious Toleration in England, 1787-1833, at 183-205 (1961)Google Scholar.

138 Thomas, Babington Macaulay, Civil Disabilities of the Jews , 52 Edinburgh Rev., Oct.-Jan., 1830-31, at 365 Google Scholar, quoted and paraphrased in id. at 201.

139 Edward, Carpenter, Toleration and Establishment: 2, Studies in a Relationship , in From Uniformity to Unity, supra note 122, at 289, 291 Google Scholar.

140 6 Anne, ch. 40.

141 The Chronicle of Convocation (May 12, 1887), quoted in Carpenter, supra note 139, at 301-02 (citing State Papers and Letters addressed to William Carstares 760 (J. McCormick ed., 1774)).

142 Id. at 301.

143 Payne, supra note 122, at 279.

144 Peter, Crumper, Freedom of Thought, Conscience and Religion, in David Harris & Sarah Joseph, The International Covenant on Civil and Political Rights and United Kingdom Law 355, 362 (1995)Google Scholar. The Church of England is not established in Wales or Northern Ireland. The Presbyterian Church is established in Scotland. Id. at 363.

145 Feldman, supra note 104, at 687.

146 The revocation came in 1967 as part of the Criminal Justice Act. Criminal Justice Act, 1967, ch. 80 (Eng.). This rescinded several “obsolete” laws on the recommendation of a government-appointed law commission. It was thought that that was the end of the matter, but this conclusion ignores the resilience of the common law of blasphemy as propounded by Blackstone.

147 In 1985 the UK Law Commission had unanimously recommended the abolition by statute of the common law offense of blasphemy. That recommendation still awaits action, Law Commission Report No. 145, Offences Against Religion and Public Worship (1985), and many in England still believe that the law, instead of being repealed, ought to be enforced and extended to protect all other religions from intemperate dissent, see Feldman, supra note 104, at 693.

148 See Regina v. Lemon, [1978] 3 All E.R. 175, 1979 App. Cas. 617.

149 1979 App. Cas. at 658.

150 John, A. Robilliard St., Religion and The Law: Religious Liberty in Modern English Law 35-40 (1984)Google Scholar.

151 Wingrove v. United Kingdom, App. No. 17419/90, 24 Eur. H.R. Rep. 1 (1996).

152 Id. at 32.

153 Note, supra note 126, at 694 nn.2, 3, and cases and statutes therein cited.

154 Id. and citations throughout. See, e.g., Reynolds v. United States, 98 U.S. 145 (1879) (plural marriage); Roth v. United States, 354 U.S. 476 (1957) (obscenity).

155 Levy, supra note 22, at 401.

156 People v. Ruggles, 8 Johns. 290, 295 (N.Y. Sup. Ct. 1811).

157 Id .

158 Levy, supra note 22, at 402.

159 Id. at 404.

160 Id. at 406 and accompanying cites, 413. See also People v. Porter, 2 Park. Crim. Rep. 14 (N.Y. Cir. J. & County JJ. 1823); Updegraph v. Commonwealth, 11 Serg. & Rawle 394 (Pa. 1824); State v. Chandler, 2 Del. (2 Harr.) 553 (1837); Commonwealth v. Kneeland, 37 Mass. (20 Pick.) 206 (1838).

161 The felicitous phrase is from Slaughter, supra note 41, at 183. The distinction appears in the opinion of Lord Erskine in Shore v. Wilson, 8 Eng. Rep. 450, 517 (H.L. 1842).

162 Levy, supra note 22, at 424. The book is John Search, Considerations of the Law of Libel, as Relating to Publication on The Subject of Religion (1833).

163 Regina v. Ramsay & Foote, 48 L.T.R. 733, 736, 739 (Q.B. 1883).

164 Vidal v. Girard’s Executors, 43 U.S. (2 How.) 126, 198-99 (1844). See also Hustler Magazine Inc. v. Falwell, 485U.S. 46 (1988).

165 Levy, supra note 22, at 530. See also N.Y. Times, Apr. 25, 1971, at 60.

166 Slaughter, supra note 41, at 184. See also Note, supra note 126.

167 Engle v. Vitale, 370 U.S. 421, 431-32 (1962). See also Lee v. Weisman, 505 U.S. 577 (1992); and Cantwell v. Connecticut, 310 U.S. 296 (1940).

168 Epperson v. Arkansas, 393 U.S. 97, 104 (1968).

169 The terms “inherent” and “inalienable” are used, inter alia, in the preamble to the Universal Declaration of Human Rights of 1948. GA Res. 217A (III), UN Doc. A/810, at 71 (1948).

170 Id., Art. 18.

171 John, Locke, The Second Treatise on Civil Government 55 (Prometheus ed. 1986) (1690)Google Scholar.

172 Slaughter, supra note 41, at 187.

173 Planned Parenthood v. Casey, 505 U.S. 833, 851 (1992).

174 Id. Such a commitment, of course, does not obviate the difficult task of deciding, case by case, when a socially intrusive claim to free exercise—e.g., the practice of polygamy—must yield to the social order as defined by a community as its “state interest.” Reynolds v. United States, 98 U.S. 145 (1879). There appears more recently, however, to be a tacit governmental agreement not to prosecute polygamy among small Mormon sects. N.Y. Times, Oct. 12, 1969, §1, at 5. The problem of social ramifications of free exercise, briefly noted in the text at note 81 supra, was faced in the 1996 indictment by a Nebraska prosecutor of recent immigrants from Iraq who had participated in the wedding of two sisters, aged 13 and 14, to Iraqi immigrant grooms aged 28 and 34. The father was charged with child abuse, the mother with contributing to the delinquency of minors, and the putative husbands with statutory rape under Nebraska law prohibiting marriage of persons under the age of 17 and making it illegal for anyone 18 or older to have sex with someone under 18, even with that person’s consent. The girls were taken into protective custody and the four adults arrested. “You live in our state,” the prosecutor was quoted as saying, “you live by our laws.” According to the defense attorney, however, such child marriage is approved among conservative rural Islamics, since it alleviates concern that the girls might otherwise be “dishonoured.” Don, Terry, Child Brides in Middle America: Mideast Culture Clashes with the Law , Int’l Herald Trib., Dec. 3, 1996, at 11 Google Scholar. Another example is the use of hallucinogenic drugs. People v. Woody, 61 Cal.2d 719, 394 P.2d 813 (1964), held that the use of peyote by Indians as a religious practice could not be prohibited. For discussion of this difficult subject, see, e.g., Sherbert v. Verner, 374 U.S. 398 (1963).

175 For a defense of that difference from an Asian perspective, see Bilahari, Kausikan, Asia’s Different Standard , 92 Foreign Pol’y 24 (1993)Google Scholar.

176 Roland, Huntford, the New Totalitarians 16 (1972)Google Scholar.

177 Nicholas, Hope, German and Scandinavian Protestantism, 1700-1918, at 82 (1995)Google Scholar.

178 Id. at 83-98.

179 Id. at 94.

180 Irene, Scobic, Sweden 21 (1972)Google Scholar.

181 Franklin, D. Scott, Sweden, the Nation’s History 195 (1988)Google Scholar.

182 Nor was this unique to Sweden. A draconian Danish press law of 1799 provided (sec. 5) that anyone

Hope, supra note 177, at 304.

183 Huntford, supra note 176, at 23.

184 Id.

185 Id.

186 Scott, supra note 181, at 573.

187 Huntford, supra note 176, at 24.

188 Statens Offentliga Utredningar, Civil Departementet, Staten och Trossamfunden (Summary) 15- 17 (1994). A résumé of previous efforts to disestablish the Swedish Lutheran church is in Scott, supra note 181, at 575.

189 Huntford, supra note 176, at 34.

190 Id.

191 Niklas, Luhmann, The Differentiation of Society 333 (Stephen, Holmes & Charles, Larmore trans., 1982)Google Scholar.

192 Al-Yassini, supra note 95, at 135.

193 Cymoine, Rowe, Religious Freedom in the People’s Republic of China , 2 ILSA J. Int’l & Comp. L. 723 (1996)Google Scholar.

194 Eric, Kolodner, Religious Rights in China: A Comparison of International Human Rights Law and Chinese Domestic Legislation , 12 UCLA Pac. Basin L.J. 407, 421 (1996)Google Scholar.

195 Id. at 419-20.

196 Rowe, supra note 193, at 736-38.

197 GA Res. 36/55, supra note 61. See UN GAOR, 36th Sess., 73d plen. mtg., Vol. 2, at 1218, UN Doc. A/ 36/PV.73 (1981).

198 Henry, Kamm, China’s Priests, Sticklers for Latin, Disavow Vatican , N.Y. Times, Mar. 23, 1981, at A2 Google Scholar; David, Holley, Graham Finds Chinese Like His Frog Sermon , L.A. Times, Apr. 18, 1988, §1, at 6 Google Scholar.

199 Human Rights Watch, Memorandum 1 (June 18, 1997).

200 Wash. Post, Apr. 9, 1997, at A22.

201 James, E. Wood Jr., Rising Expectations for Religious Rights in Eastern Europe , 33 J. Church & St. 1, 4 (1991)Google Scholar.

202 Mojzes, supra note 43, at 308-09.

203 Id. at 155.

204 Id. at 186. See also Jonathan, Luxmore, Eastern Europe 1994: A Review of Religious Life in Bulgaria, Romania, Hungary, Slovakia, the Czech Republic and Poland, 23 Religion, St. & Soc’y 213, 215-16 (1995)Google Scholar.

205 See, e.g., the Hungarian law of 1990 entitled “The Right to Freedom and Conscience,” which guarantees the free exercise of religion and prohibits state intrusion into religious affairs. Mojzes, supra note 43, at 268; and Wood, supra note 201, at 7.

206 Mojzes, supra note 43, at 268.

207 Luxmore, supra note 204, at 213.

208 Quoted in Huntington, supra note 83, at 40.

209 I am indebted to Professor Philip Allott for the felicitous phrase.

210 Payne, supra note 122.

211 Id. at 257.

212 Dianne, Otto, Subalternity and International Law: The Problems of Global Community and the Incommensurability of Difference , 5 Soc. & Legal Stud. 337, 354 (1996)Google Scholar.

213 ICCPR, supra note 4, Art. 18.

214 However, as the Human Rights Committee observed in a case in which it found that Cameroon had violated a prisoner’s rights under Article 7 of the ICCPR (prohibiting torture, and cruel, inhuman or degrading treatment), “certain minimum standards of detention must be observed regardless of a State party’s level of development.” Case No. 458/1991 (Albert Woman Mukong v. Cameroon), Report of the Human Rights Committee, UN GAOR, 49th Sess., Supp. No. 40, Vol. 1, at 73-74, para. 420, UN Doc. A/49/40 (1994).

215 Case No. 446/1991 (J.P. v. Canada), Report of the Human Rights Committee, UN GAOR, 47th Sess., Supp. No. 40, at 158, para. 633, and Annex X, §25, UN Doc. A/47/40 (1992).

216 Case No. 208/1986 (Bhinder v. Canada), Human Rights Committee, Official Records, 1989/90, Vol. 2, at 362, para. 625, UN Doc. CCPR/9/Add.l (1995).

217 Interview conducted by Joseph Fitchett, Int’l Herald Trib., Nov. 29, 1996, at 4.

218 Rosalyn, Higgins, Ten Yean on the Human Rights Committee , 1996 Eur. Hum. Rts. L. Rev. 570, 575 Google Scholar.