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(2005) 17 Sri Lanka JIL 67(a)
FAIR TRIAL OBLIGATIONS IN INTERNATIONAL LAW:

THEIR APPLICABILITY TO THE CHURCHES
Roger Gamble*
Noel Dias **
The right of an accused to a fair trial is a fundamental human right', one of the
clearest expressions of the principles of justice and recognised as such by all
major human rights' treaties. 2 This paper assesses the fair trial position of the two
largest Christian churches, the Roman Catholic and Anglican Churches, in the
prosecution of their own ecclesiastical offences3 . The assessment begins with an
* Director, Post Graduate Studies, Deakin University, Australia

** Senior Lecturer, Faculty of Law, University of Colombo, Sri Lanka
So fundamental that it is at least arguable that the right to a fair trial should be accorded the
status of a peremptory norm or jus cogens. A/us cogens, is defined as: "The body of those rules
of law whose non-observance may affect the very essence of the legal system to which they
belong to such an extent that the subjects of law may not, under pain of absolute nullity, depart
from them in virtue of particular agreements... Thus, the /us cogens restricts the freedom of the
parties; its rules are absolutely binding": Suy, E., "The Concept of Jus Cogens in Public
International Law", in Lagonissi, Conference ofInternationalLaw: Papersand Proceedings,
Vol.11 (Geneva, 1996), p. 17 quoted in Hannikainen, L., Peremptory Norms (Jus Cogens) in
InternationalLaw: Historical Development, Criteria and Present Status (Lakimiesliiton
Kustannus, Helsinki, 1988), pI. Also see Thirlway, "The Sources of International Law", in
Evans, D., (ed.) InternationalLaw (Oxford, 2003), "The concept is generally accepted, but
there remains considerable controversy as to its application, as to -how rules of /us cogens
acquire that status, and which rules have in fact acquired it" at p118. Torfs, R., "Ecclesia
semper reformanda:A European perspective on the future of the law, the journey ahead" in
CLSA Proccedings 61 (1999).
2 Beginning withArt 10 ofthe UN Declaration of Human Rights, all global and regional conventions
on human rights unequivocally include the right to a fair trial as a human right. The two that are
used in this paper are the European Convention on Human Rights (hereafter the ECHR) and the
International Convention on Civil and Political Rights (hereafter the ICCPR)
By way of introduction, in the Anglican Church the Ecclesiastical Jurisdiction Measure 1963
(EJM) specifies two categories of ecclesiastical offence (a) doctrinal offences (offences against
doctrine, ritual and ceremony, including offences such as heresy and blasphemy and maintaining
opinions against the Book of Common Prayer) and (b) conduct offences (conduct unbecoming
of a clergyman and persistent neglect of duty) heard in the consistory court. Criminal jurisdiction
applies only to those in holy orders (deacon, priest bishop or archbishop): lay persons are
67 (a)
Vol. 17 Sri Lanka Journalof InternationalLaw (2005)
examination of the status of the Churches under international law and then moves
to consider the extent to which they are, or should be, bound by international fair
trial norms 4 This is an appropriate time to examine these matters because there
is now a greater expectation that the Churches themselves should comply with
the international human rights standards that they often so strenuously exhort
others to observe and, in the wake of various trials and tribulations within the
Churches, there is now greater awareness and scrutiny of the Churches' internal
disciplinary processes.
I. THE ROMAN CATHOLIC CHURCH AND INTERNATIONAL

OBLIGATIONS
To assess the Roman Catholic Church's stance on international fair trial norms
we must begin by examining the status of the Church in international law and then
move to an assessment of the approach the Church has taken to human rights
generally and specifically in relation to fair trial norms.
outside the scope of the EJM. In the Roman Catholic Church, the Code of Canon Law 1983
(Titles I to VI of Book VI) contains the offences and penalties. These include offences against
religion (apostasy, heresy, schism and desecration of sacred species): Title 1; offences against
the authority and freedom of the church, including false doctrine, persistent disobedience to the
authorities: Title 11; usurpation of ecclesiastical office, including celebrating the Holy Eucharist
without authority: Title 111; falsehood, including calumnious denunciation, defamation and
fabrication of evidence: Title IV; offences in connection with particular obligations, including a
cleric who marries: Title V; and offences related to life and freedom, including murder. Any
person who is baptised and is in full communion with the Catholic Church can be tried under
canon law.
In this article fair trial norms are those enumerated in the ICCPR (Art 14) and the ECHR (Art
6). In summary these are: all persons shall be equal before the courts and tribunals, shall be
entitled to a fair and public hearing by a competent, independent and impartial tribunal established
by law. Everyone charged with a criminal offence shall have the right to presumed innocent
until proved guilty according to law. In the determination of any criminal charge against him,
everyone shall be entitled to certain minimum guarantees including the right to be informed
promptly and in detail the nature and cause of charge against him; to have adequate time and
facilities for the preparation of his defence and to communicate with counsel of his own
choosing; to be tried without delay; to be tried in his presence, and to defend himself in person
or through legal assistance of his own choosing; to examine witnesses; not to be compelled to
testify against himself or to confess guilt. Everyone convicted of a crime shall have the right of
appeal.
FairTrial Obligationsin InternationalLaw
1. THE CHURCH IN INTERNATIONAL LAW
The Second Vatican Council, in the dogmatic constitution Lumen Gentium, states:
"The holy Catholic Church.. .is made up of faithful who are organically united in
the Holy Spirit by the same faith, the same sacraments and the same government.
They combine into different groups, which are held together by their hierarchy,
and so form particular churches or rites".' The word 'faithful' means "Christ's
faithful". 6 The Roman Catholic Church, a worldwide communion of the faithful,7
has two manifestations with juridical personality in international law: (a) the Holy
See 8, which is non-territorial; and (b) the Vatican City, which is territorial9
Both these international persons are distinct, but are indissolubly united in the
person of the Pope. The Pope is at once the ruler of the two international entities
and the head of the Catholic Church universal. Although the Vatican City is
temporal in its purpose, and the Holy See spiritual, their intimate union precludes
the Vatican City from being restricted to exclusively political purposes. The Holy
See exercises sovereignty over the Vatican City, not for the advantage of the
State itself, but for the higher interests of the Church.1"
This State was created with temporal sovereignty to assure independence of

spiritual action for the Holy See. The Vatican City is thus a means to a higher
Lumen Gentium, para. 18.

Code, Can. 204: "Christ's faithful are those who, since incorporated into Christ through baptism,
are constituted people of God. For this reason they participate in their own way in the priestly,
prophetic and kingly office of Christ. They are called, each according to his or her particular
condition, to exercise the mission which God entrusted to the Church to fulfil in the world".
Cardinale, H.E., The Holy See andthe InternationalOrder (London, 1976) (hereafter referred to
as Cardinale), p.1 Roman Catholic Church is a spiritual union of the faithful all over the world,
who accept Christ as the invisible head and the Pope as His visible representative.
8 The supreme directive organ of the Roman Catholic church and the dejure sovereign ruler of the
Vatican City
9 The Vatican City, though called a 'city' is in fact a 'state' under international law.
10 The historic address of Pope Paul VI to the United Nations General Assembly in 1965, as
reported in Tablet, London, October 9, 1965. See also, N. Dias, "Roman Catholic Church and
International Law"in 13 Sri Lanka JournalofInternationalLaw (2001) p. 10 7 at p. 122 [hereafter
Dias(l)].
end, an instrument of another pre-existing juridical system, from which it cannot

be separated. The close union between the Vatican City and the Holy See imports
to this miniscule state its great importance: it also makes it unique in the world
both juridically and politically."
There is consensus among jurists that the Vatican City is ajuridical person under
international law,'2 , meeting the criteria set out in Article 1 of the Montevideo
Convention of 1933 on the Rights and Duties of a State. To be recognised as
a State under the Convention, it must have: (a) a permanent population (b) a
defined territory; (c) a Government; and (4) a capacity to enter into relations with
other states.
Although, as we have seen, the Holy See does not meet the above criteria, not
having an identifiable population within a defined territorial boundary, it, too, is
recognised as an international person, distinct from the Vatican City. 3 The Holy
See and the Vatican City maintain permanent diplomatic relations with more than
seventy countries.14 Both are members of international organizations, such as the
None of the international religious organisations (such as the World Council of Churches or the
Protestant churches) enjoy personality under international law: see Dias(l), ibid.pp. 115-116.
12 New Catholic Encyclopedia, volume 7, published by Mc.Graw-Hill, New York, 1967 [hereafter,
CAT.ENC(N)], vol.14, p.559. See, also, Neville, R., The World of the Vatican Vatican, 1960
[hereafter, Neville ] p. I
'3 There is a great deal of evidence to attest to the long standing recognition of the Holy See as an
international person. See Dias (1), note 10, pp. 110-121. Kunz is of the view that the international
personality of the Holy See emerged after the annexation of the Papal States : see Kunz, "The
Status of the Holy See in International Law", 46 AJIL 308 (1952), p. 3 0 8 . However, this view
is contested by Cardinale, see note 7, p.81. Kunz's position is counter to the very idea of the
birth of classical international law. In the 15' and the 1611 centuries, the Holy Roman Empire,
personified in the Holy See, was treated as an international person. The birth of nation-states
in the 18" century, though they lessened the power of the Holy See, did not cause it to
disappear. Before, during and after the annexation of the Papal States, the Holy See remained
unimpaired.
14 Dias (1), note 10 p. 117: "Cprrently, the Holy See has diplomatic relations with 171 countries.
It is accredited with an apostolic nuncio with the European Union, a representative at the Office
of Security and Cooperation in Europe... 101 nuncios cover 171 countries and six permanent
representatives or observers follow the international organizations". See also, Origins, vol.29,
no.33 (2000), p,539: "The Nature and Methods of Vatican Diplomacy". The Vatican City also
is a party to several treaties and sends legates in its own name. Moreover, the Vatican City is
a party to the Convention Concerning the Safeguard of Cultural Property in Case of Armed
Conflict.
Fair Trial Obligations in International Law
Universal Postal Union and the International Telecommunication Union. Moreover,

they are both state parties to some major international treaties, such as the Berne
Convention for the Protection of Literary and Artistic Works, the International
5
Convention on Road Traffic, and the International Wheat Council.1
The international personalities of the Holy See and of the Vatican City are firmly
sealed by the Lateran Pacts (popularly known as the Lateran Treaty), signed on
11 February 1929, by the Holy See and the Republic of Italy, and coming into
effect for the Vatican City on 7 June 1929.6 Under the Lateran Treaty, Italy
recognized that the Holy See possesses sovereignty in the international field as an
attribute inherent to its nature and in conformity with its tradition and mission in
the world and, in addition, Italy recognized that, in order to carry out its tradition
and mission, the Holy See requires the statehood and international personality of
the Vatican City. Consequently, Italy defined the essential characteristics and
limits of the Vatican City as a state. The Vatican City gave domestic enforceability
to the Lateran Treaties the same day on which they were ratified, whereas it was
7
only in 18 that the Republic of Italy engrafted the treaties to its own constitution.'
'5 CAT.ENC(N), see, note 12, p.558. Very recently, the Holy See and Hungary reestablished
diplomatic relations on the highest level and signed three accords. The first accord makes
provision for settlement of issues related to the Church according to the Codex Juris Canonici
(1983). For this and the new law passed by Hungary on religious freedom, see, Erdo and
Schanda, "Church and State in Hungary: An Overview of Legal Questions", 6 European Journal
ofChurch and State Research (1999) p. 2 2 0 at p. 223. For the numerous treaties, to which the
Holy See and Vatican City are parties, see, Dias (1), note 10, p. 115:
CAT.ENC(N), see, note 12, p. 5 55 . See Ferrari, "State and Church in Italy", in Robbers, G
(ed), State and Church in the European Union, Nomon Verlagsgesellschaft, Baden, 1996, p. 172.
This author refers to the Treaty of Villa Madama (Accordo de Villa Madama), which made
certain modifications to the 1929 Late'ran Treaties. However, the modifications did not in any
way change the status of either the Holy See or the Vatican City. The modifications mainly
effected regulations operative within Italy, in areas such as: religious education, the status of
church entities, pastoral care in the police force and church holidays.
'7 As to the Holy See, note that the relations between the Holy See and the Vatican City, on the
one hand, and Italy, on the other, are now to some extent modified by an agreement concluded
in February 1984.
2. THE APPROACH OF THE CHURCH TO HUMAN RIGHTS
The extent to which the Church applies international fair trial norms to its penal
processes in part depends upon, and is conditioned by, the approach of the church
to human rights in general. There have been a number of phases over the past
two hundred and fifty years.
First, it is clear that the church has an historical antagonism to the idea of human
rights. The charters that marked the beginning of human rights protection in
Europe and the USA-the American Declaration of Independence of 1776 and
the French Revolutionary Declaration of 1789--developed outside the Church.
Indeed, the Church in France at the end of the 18"' century was closely associated
with the ancien regime and was antagonistic to the human rights discourse. 8
Pope Pius VI, in his fateful brief QuodAliquantum (19 March 1791) declared
that the Revolutionary Constitution of France was "to annihilate the Catholic religion
and with it the obedience to the kings". If one starts from that principle, then the
assertion of human rights becomes a 'threat' to the Church, and a contrast is set
up between, so to speak, "the rights of man" and the "rights of God".
In the period following the end of the Napoleonic empire, the Church became the
ally of the restored monarchs throughout Europe, and the unsympathetic attitude
towards human rights that prevailed in the post-French revolution period was
consolidated. The national liberation movements of the Catholic countries - such
as Poland, Ireland and even Italy - were looked upon with suspicion.
Pontifical rejection of discourse about human rights continued in the nineteenth

century.' 9 The negative view of human rights at this time reflected the papal
S8 Hebblethwaite, P., Human Rights in the Church, p. 92; B. Plongeron, "LEglise et les declarations
des droits de I'homme au XVIIIe siecle," Nouvelle Revue Theologique May-June, 1979, pp.358-
377; Otfried Hoffe, "Papst Johannes Paul II und die menschenrechte," FreiburgerZeitschrift
fur Philosophieund Theologie 27 (1980), pp. 36 -5 5 .
19 Popes Gregory XVI and Pius IX and, in the 20" century, Archbishop Marcel Lefebvre shared
this view together with a considerable number of contemporary canonists, such as Ratzinger
and other curial officials. See, Justitia.p. 12. This official document of the Church accepts that
there was resistance to the human rights discourse: "As we are aware, the Church's attitude
towards human rights during the last two centuries too frequently has been characterised by
72
modus operandi: within the papal state, the Popes behaved like any other threatened
autocrat20-they censored the press and imprisoned or condoned the execution
of dissidents.2 1 The justification for the view that human rights were not relevant
or applicable to the Church was based on the premise that the Church is a sui
23
juris society, 22 and a societas perfecta (perfect society).
vehement reaction on the Catholic side to any declaration of human rights aside from the
standpoint of liberalism and laicism." This document makes special reference to Popes Pius VI
(Letter QuodAliquantum of 10 March 1791), Pius VII (Apostolic Letter, Post Tuam Diuturnas),
Gregory XVI (Encyclical, Mirari Vos of 15 August 1832) and Pius IX (Encyclical, Nostis et
Nobiscum of 8 December 1849). See also, Ottaviani, InstitutionesJuris Publici Ecclesiastici
(Rome, 1958), p. 1
20 Getlein, F.,The Trouble with Catholics, Helicon Press, Maryland, USA, 1964 pp.27-9: "The
medieval 'feudal lords' had a long and a mutual relationship with bishops of the Catholic
Church... after all the bishops were getting estates, revenues and as needed ... [tihe French
aristocracy were closely allied with the hierarchy and upper clergy. As in the Trollopian Anglican
Church of the 19" century, so in the Medieval Church and the Renaissance Church, a cleric
could make a very good thing out of collecting 'livings' and 'benefices' for episcopal sees. In
Italy, Pope Leo X, who became a pope at the age of thirteen belonged to the business family of
Medici, proclaimed indulgences as a way of bringing money to Rome to build St.Peter's. In
Germany, indulgences preached at Wittenburg originated in the Church of Rome were
administered by the banking house of Fugger in Augsberg. Fuggers and Albrecht (who became
the Archbishop of Mainz at the time of the Protestant Reformation, belonged to a family of
German merchants) worked for Leo. Albrecht emerged as one of the pioneers of tolerance
granted religious liberty to the people of Magdeburg for the sum of half million florins".
21 Hebblethwaite, note 18, p. 19
22 Some canonists equate the church as a 'suijuris society' with 'perfect society'. In the City of
God (abridged edition by V. Bourke, Image Books, New York,1958, pp.7-9, hereafter cited as
"Augustine"), St Augustine draws a contrast between the two cities. The first is the City of
God, derived from the biblical idea of asociety comprising of men (and angels) who are tending
God-ward, and the second, a society tending downward (or ungodly). Charlemagne and his
associates attempted to realise a Heavenly City (or a city of god) in the Holy Roman Empire
and soon they found themselves mistaken (p. 10). It is submitted that it is equally a mistake to
identify the Heavenly City with the Roman Catholic Church. The Roman Church is not the
perfect society but it should aspire to imitate the qualities of the Heavenly City. In the words
of Gaudium et Spes, para.45 (Flannery, p.947), the Church is in pilgrimage to the Holy City (the
Kingdom of God). Hence, the Church should be conscious of historical realities, that is it should
recognise where it had failed and be open to change and adapt itself to conform to the qualities
of the Heavenly City.
23 Connolly, T., Appeals, Canon Law Society, No. 79 (1932), p. 2: "The Catholic Church is a
perfect society, having in itself, all the means necessary to attain its end and accordingly, it has
ever vindicated its right to be completely free and independent of any human power or authority
in the matter of fulfilling the purpose for which it was established". See Cafardi "Sanctions in
the Roman Catholic Church" in Hill, M. (editor), Faithful Discipleship:Clergy Discipline in
The second major phase began in the middle of the 20th century. At this point, the
Church engaged far more sympathetically in the human rights discourse. John
XXIII was the first Pope to give human rights a central place in his encyclicals.24
In Pacem in Terris, the Holy Father states: "rights and duties flow from the very
nature of the human person.. .they are universal and inviolable".25 These rights
apply across the board: they apply to the State in the first instance, because it is
against the state that they most need defending. Moreover, for John XXIII human
rights also apply to "every form" of society and to those bodies which the Pope
Anglican and Roman Catholic Canon Law, published by the Center for Law and Religion,
Cardiff, p. 194. The idea that the Church as suijurisand societasperfectahas now given way
to the idea of the church as the "People of God". Stenson "Penalties in the New Code: The
Role of the Confessor" in, The Jurist (I983)p.406 at p.410 agreeing with Cafardi says: "...the
Code's approach to penal law reflects the Church's understanding of herself as outlined in
Vatican II, where many models of the Church were identified.., the predominant model is that of
the People of God". Johnson, "Galileo's Daughters: What Error Looks Like Today" in
Commonweal, 19 November 1999, p. 18: hereafter referred as Johnson (1). This author refers to
two models of the Church, the traditional view of perfect society differentiated by the post-
Vatican II model of the 'People of God', which is continuously transformed (ecclesia semper
reformanda).See, Lumen Gentium, para. 10: "Christ the Lord .. made the new people, a kingdom
of priests to God, his Father". For a contrary view, namely of the Church as societasperfecta,
see, Ottaviani, InstitutionesJurisPubliciEcclesiastici(Rome, 1958), p.1 .,.
24 Justitiaet Pax, The Church and Human Rights, Working Paper 1, Pontifical Commission of
Jurists, Vatican City, 1975 (hereafter referred as Justitia).In this monograph, the first reference
to historical developments, well-disposed to human rights in the church (p. 10), is given as the
Encyclical, Pacem in Terris of Pope John XIII. Walsh, "U-Turn on Human Rights", The Tablet,
14 December 2002: in this article, the author discusses the struggle of some theologians (for
example, Courtney Murray, the editor of the Jesuit quarterly, Theological Studies) to present
the dignity of man and his liberty of conscience. He had to contend with conservatives like
Cardinal Ottaviani, the president of the Theology Commission and Archbishop Marcel Lefebvre.
At the insistence of Cardinal Spellman and the bishops of the USA, Murray was brought into
the Vatican Council. The document on Religious Liberty (DignitasHumanae) was hotly debated.
It was after an arduous struggle, with Pope John standing his ground in favour of relgious
freedom as given expression to in his encyclical Mater et Magistra (196 1), that the Vatican II
document on Relgious Liberty could see the light of day.
25 Pacem in Terris, No.24. Some, including Ottaviani, have cited St.Augustine's City of God to
demonstrate that the Church is 'perfect society'. However, that argument is not cogent. The
reason that promoted the writing the City of God is the charge made by Christian Marcellinus,
an official in North Africa, that Christianity had sapped the strength of the Roman Empire. As
a result she was unable to resist attacks of the Goths in 410 (p.8). St. Augustine attacks this
contention in the first two parts (Books I-X): St.Augustine in these sections provides the
primary source and a wealth of information about ancient polytheism, and also provides his
calls "intermediate forms of association".26 Whilst the church itself was not
expressly categorised as one such 'form of society', the tenor of this encyclical
presents the Church not merely as a beneficiary of human rights, but also suggests
that the Church itself ought to be an exemplar to the world of one who honours
and respects the human rights of others. Thus, the encyclical may be interpreted
as suggesting that the Church should not be exempt from human rights obligations.in
relation to its own procedures On the contrary, there seems every reason to
include it. Indeed, the trial of Jesus, seen by many (both those who favour the
protection of human rights and those who do not) to represent the antithesis of
justice, 27 may symbolise for the church the challenge to have in place a penal
process in which rights that are so fundamental and which emerge from the very
dignity of the human person are inalienable.
The human rights discourse initiated by Pope John XXIII is taken up by the second
Vatican Council, for which the notion of the dignity of the human person was
exposition on Christian thought in contrast to paganism (p.9). In Books XI -XXII he offers a

positive interpretation of human society, in which the protagonists are not Rome and its
enemies but two radically different cities (he gives the biblical interpretation of the City of
God). One of the finest attributes of the City of God is peace and it emanates from divinejustice
(pp. 10, 480). Augustine felt that in some measure earthly peace was achieved in the better days
of the Empire. But Etienne Gilson in his Foreward to the City of God wonders whether such
peace could be co-extensive with any society on this earth. (p.10). It is contended that the
Roman Catholic Church too cannot be considered a full realisation of the Kingdom of God; in
that sense it is not a 'perfect society'.
27 The travesty of justice in the "trial of Jesus" is amply borne out by research as well as by
reliable theological and canonical opinions. See, "Trial of Jesus" in CAN.ENC(N), note 12,
pp.281-283. This article states: Before the Sanhedrin, Condemnation of Jesus to death was
predetermined. Testimony of witnesses were legally invalid. The refusal of Jesus to defend
against the accusers was an indication that he was aware of the futility of offering any defense.
Having failed to adduce damning evidence, the high priest demands personally an unequivocal
answer to the question whether Jesus was the Son of God. Jesus' reply was his death warrant.
The trial before Pilate was also a travesty of justice. Under the Roman rule, the sentence of
Sanhedrin was only declaratory. Death sentence could only be inflicted by the Roman imperial
court (lus gladii). Pilate's studied judgment was that Jesus was not guilty. He tried alternatives
to spare Jesus from death by sending him to Herod, by giving a lesser punishment of flogging.
Finally, he submitted to the threat of Jews fearing a report to the Emperor condemning an
innocent man knowing well that Jesus was innocent. See also, J. Blinzler, The Trial ofJesus, tr.
by F. Mc. Hugh, Westminster, 1959. It is true that Jesus willingly became a part of the Jewish
church, for He said: "I have come not to abolish the Law or the Prophets, but to fulfil them".
Any reasonable person could argue that His voluntary membership of the Jewish church cannot
be deemed to be a "waiver" of His right to a fair trial.
central, 2 in the Pastoral Constitution Gaudium et Spes, 2 9 and later in the

encyclicals of Pope Paul VI, 30 and Pope John Paul I1,31 whose Apostolic Letter,
Tertio Millennio Adveniente (which offered an apology for the past errors and
sins of the Church),3 2 may itself be understood as an invitation to the Church to
consider the claims of human rights amongst the challenges faced by the
contemporary Church. Moreover, the outlook of Vatican I led to the incorporation
in the Code of Canon Law 1983 of a section devoted specifically to 'The Obligations
and Rights ofAll Christ's Faithful'. 33 This is commonly conceived to represent a
statement of fundamental rights and duties applying within the church.34 Many
28 Human dignity is the continuing theme of the Vatican Council II. Expression is given to it in
chapter 1 of the Document on the Church in the Modem World, Flannery, A., Vatican Council
3 6
II, The ConciliarandPost ConciliarDocuments (New York, 1988), pp. 9 1 - [hereafter referred
to as Flannery (88)].
29 Gaudium et Spes, paras. 3 & 76: The Council claimed the Church's right to "true freedom to
preach the faith.. .and to pass moral judgements even in matters relating to politics, whenever
the fundamental rights of man or the salvation of souls requires it". See also The Canon Law:
Letter & Spirit,by the Canon Law Society of Great Britain and Ireland, London, 1995 [hereafter,
CLSGB] p.2, para.7, and Justitia,note 24 p. 17: "Gaudium et spes is clear proof that throughout
the universal Church concern with the nature of man, his dignity... has reached a new depth.
Greater stress is laid on the fact that human promotion cannot be realized... except in a civil
society which is organised juridically(our emphasis) and politically".
30 The Encyclicals, of Pope Paul VI, Populorum Progressioand OctogesimaAdvenientes take up
both inidvidual rights as well as the rights of peoples (groups). He states that true progress is
not possible without guaranteeing economic, social and cultural rights. See Justitia,note 24,
p.17.
31 John Paul II, Allocution to the Roman Rota on "The Church and Protection of Fundamental
Human Rights", I I February 1979 in AAS 71 (1979) pp.422-427: "As you are well aware, the
Church's vocation includes a committed effort to be the interpreter of that thirst for justice and
dignity which men and women of our age experience so strongly. In her function of proclaiming
and upholding the basic rights of the human person... she is supported by the international
community which celebrated the thirtieth anniversary of Universal Declaration of Human
Rights and which has proclaimed 1979 to be the International Year of the Child": see Woestmann,
W., (editor) Papal Allocutions to the Roman Rota 1939-1994, St. Paul university, Ottawa, 1994
[hereafter, Woestman] p. 153.
32 Tertio Millennio Adveniente in vol. 29 Origins (2000), p. 6 29 . In this issue of Origins a reflection
upon this Apostolic Letter is rendered by the International Theological Commission. Neither
the Apostolic Letter nor the Commission specify what the sins and the scandals of the past are.
33 Code of Canon Law 1983, Book II, Title I.
31 CLSGB, note 29, para. 435: 'This Title (Cann. 208-223) and the next (Cann. 224-231) introduce
a major innovation into the Church's law.., for the first time is spelled out what might be called
FairTrial Obligations in InternationalLaw
of the rights enumerated in the Code correspond in very broad terms with some
of those rights and freedoms enunciated in the treaties of international law.35
However, importantly, the fundamental rights in the Code are not generally cast,
or understood, as being human rights.36 Nevertheless, evidence is to be found of
the understanding that these and other fundamental rights and duties are associated
with the dignity of the human person.
During the modem era, the applicability of human rights within the Church has
become the subject of discussion amongst contemporary canonists and scholars.
Often the debate is set in the context of the influence of secular trends on
ecclesiastical life, typified in the observation of the canonist Ladislas Orsy that:
"In virtually every age, the church tended to imitate to a degree the patterns of
governance in the secular city. In the early centuries the church in its organisation
copied the structures of the Roman Empire: in the Middle Ages it accepted the
ways and means of the feudal order; in modern times it received procedures,
customs and symbols from the absolute monarchies".37 Accordingly, for Edna
a Charterof the obligations and of the rights which obtain throughout the Church'. John Paul
11, Allocution to the Roman Rota on "The Church and Protection of Fundamental Human
Rights", 11 February 1979 in AAS 71 (1979) pp.422-427: "... the Church's vocation includes
a committed effort to be the interpreter of that thirst for justice and dignity which men and
women of our age experience so strongly. In her function of proclaiming and upholding the basic
rights of the human person".
3 The following rights found in the Code are found also in the international human rights
instruments: the right to privacy (Can.220); the right to a fair trial (Can.22 1); the right not to be
punished except according to law (Can.22 I); the right to educate children (Can. 226(2)); the
right to liberty (Can.227); the right to knowledge (Can.229); the right to a worthy remuneration
[for the church employees] befitting their condition, whereby, with due regard also to the
provisions of civil. law, they can be provided for in their own needs and in those of their families
(Can. 231); and the right to marry (Can. 1058).
36 R. Torfs, "Ecclesiasemper reformanda: A European perspective on the future of the law, the
journey ahead", in CLSA Proceedings61 (1999) 49 at p.66. In this article, the author discusses
how human rights and consensual governance can be introduced into canon law as means of
dialogue with the wider society. The Church's contribution to the human rights discourse
should be to set higher standards than the minimum guarantees (namely the fundamental rights)
provided in secular constitutions.
17 "In dialogue: Avery Dulles and Ladislas Orsy continue their conversation about the papacy",
America 183, 25 November 2000, p. 12.
McDonagh the modem Church should be more open to human rights.3 8 Similarly,
for RikTorfs the notion of'horizontal human rights' and the 'self-binding principle'
represent ways to enrich what he sees as the somewhat outdated system of
governance within the Church. Torfs proposes a maximal interpretation of rights
in the Church which should ensure that, for example, "the right to privacy, freedom
of expression, [and] freedom of theological research are also protected among
the Christian faithful themselves". Relevantly, for Torfs the quest for human
rights within the church includes "respect and fair play in the inner culture of
debate". 39
3. THE CHURCH AND ITS OBLIGATIONS OF FAIR TRIAL
As we have seen, the Code of Canon Law 1983 contains the set of offences,
disciplinary measures and sanctions for the internal rule of all members of the
38 E. McDonagh, "A Theology of Governance", in Governance and Authority quoted in Hose,

"Authority in the Church", 63 Theological Quarterly(2002) p. 110 at 111. She states: "Fresh
insight into and respect for the dignity of the human being with the accompanying recognition
of certain inalienable human rights.., have yet to be realised properly and fully in our societies.
Should they not therefore play their due part in governance of the Church?"
39 R. Torfs, "Ecclesia semper reformanda: A European perspective on the future of the law: the
journey ahead" in CLSA Proccedings61 (1999) 49 at p.66. In this article the author describes
how the canon law and secular law can mutually enrich each other. Among others, he brings out
two areas, namely, human rights and consensual governance (which is relevant to our thesis) for
this symbiotic learning. Secular legal culture can be introduced into canon law through construction
(this term means integrating the best in secular law to canon law and vice versa). Torfs considers
that the church should guarantee not only minimal human rights (ie fundamental rights), but also
go beyond this to guarantee higher standards in the form of maximal rights. This is the Church's
contribution to the human rights discourse: namely rights to be protected are not only vertical
(rights vis a vis the State or the Church) but also horizontal (rights among the citizens or in the
case of the Church among the faithful). The "self binding" principle can be another example of
creative construcfion. In the context of globalisation, the sovereign States govern by consensus.
Torfs asks: could this be an opportunity to democratise the Church's governmental structure?
Indeed, Can.500 of the Code provides that it is the prerogative of the. Bishop to convene
councils of priests, though these have only a consultative vote. The diocesan Bishop is to
consult in matters of serious concern, "but he requires its consent only in cases expressly defined
by law". According to Torfs, the 1983 Code has given ample opportunity to the bishop to
democratise the Church structures, without making the Church a democracy. This he says could
be done, "by just organising a form of self-binding on an administrative level". In doing so the
legislator does not lose any right to exercise power, he only suspends the use of it. This is really
an application of the old Thomistic distinction between jus and exercitiumjuris(the exercise of
the right).
Fair Trial Obligationsin InternationalLaw
Roman Catholic Church and applies throughout the world wide Roman Catholic
Church. The question is whether the Church is obliged under international law to
ensure compliance with the ECHR and ICCPR, including their fair trial standards.
Although the Holy See has status as ajuridical person under international law, it is
a fundamental principle of the international law of treaties that only international
persons who are signatories to a treaty or a convention are bound and liable for
violations of a treaty. 4° As neither the Holy See nor the Vatican City is a party to
the ECHR and ICCPR, the Church is not obliged to comply with, inter alia, the -
fair trial guarantees under them.
Nonetheless, there is some evidence from individual European countries as well

as in the Indian subcontinent that State courts are beginning to be sympathetic to
the idea that the Roman Catholic Church must meet the standards of Article 6
ECHR. 41 The issue recently arose in Pellegriniv Italy42, a case brought on
appeal before the ECHR.
40 See, Mc Corquodale "The Individual and the International Legal System" in Evans, D., (ed.)
InternationalLaw, Oxford, 2003, p. 30 1 .
41 See eg R. Torfs, 'State and church in Belgium', in G Robbers (ed), State and Church in the
European Union (Baden-Baden, 1996) p. 1 5 at 23 for cases in which it was held that 'The
Church had to meet the demands of article 6(1) of the ECHR'. See, Canas, "State and Church in
Portugal" in Robbers (1), p. 276: in this article, the author refers to the secular courts moving
towards accommodating Bill of Rights in the church administration too. In the case of PM.A.
Metropolitalv M.M Marthoma,AIR 1995 SC 2001, the Supreme Court of India intervened in
a matter pertaining to the excommunication of the head of the Catholic Church of the Malankar
rite. The head of the Syrian Orthodox Church has jurisdiction over the head of the Catholic
Church of the Malankar rite. When the latter began to use the title "Holiness" as his formal
appellation, the former excommunicated him stating that the head of the Malankar church has
usurped the throne of St.Thomas. The Supreme Court treated churches as voluntary bodies
under common law and recognised that they are endowed with power to excommunicate as a
measure of discipline. However, the court was of the view that the measure taken by the head
of the Syrian Orthodox church had serioiis effects upon the civil rights of the Malankar church
and held that the decision of the head of the 'Syrian church did not comply with any norm that
can be justified canonically, traditionally or constitutionally'. As such the decision of the head
of the Syrian Orthodox church is null and void. See also, Bhat, "Multiculturalism and Human
Rights Values" in (2001) 25 Cochin University Law Review 49 at pp.62-6. In this article, the
author maintains how the Indian courts have been grappling with the social justice demands vis-
A-vis the freedoms of religion, ethnicity and customary laws.
42 Pellegriniv Italy (2002) 35 EHRR 2, p. 4 4 .
The facts are straightforward. Pellegrini was the wife of G. G, successfully

sought an annulment of their marriage by the regional ecclesiastical tribunal of the
vicariate of Rome, on grounds of impediment due to consanguinity. P appealed
against this decision to the Roman Rota (the appellate court of the Holy See
within the Vatican City) which in turn confirmed the decision of the first instance
tribunal. The decision of the Rota was enforced by a State court, the Florence
Court of Appeal, in accordance with the arrangement under Article 8(2) of the
Concordat between Italy and the Vatican.4 1 P brought an action against the
Republic of Italy before the European Court of Human Rights (ECHR). P claimed
that the Florence decision was defective in so far as it condoned a process in the
Rota which itself was unfair: she claimed that the Rota had given her no real
opportunity to put her case and had denied her legal assistance. The ECHR
decided in favour of P. It recognised that the Florence Appeal Court should have
ascertained, before the enforcement of the Rotal judgment, whether process in
the Rota had satisfied the fair trial guarantees of Article 6 ECHR. The European
Court of Human Rights recognised that the Vatican City is not a party to the
European Convention on Human Rights, and was not therefore technically bound
by Article 6 provisions on fair trial. However, the ECHR stated that Italy, as a
party to the Convention, had a duty to ascertain before enforcing the Rotajudgment,
to see whether it was a fair one. Since Italy has not done that, the Court held that
the applicant's right for a fair trial under Art.6(1) had been violated by Italy. It
was held, in short, that "the Italian courts failed in their duty to check before
granting confirmation and execution of the judgment of the Roman Rota, that the
applicant had enjoyed a fair trial in the ecclesiastical proceedings". 44
41 See, Ferrari "State and Church in Italy" in Robbers, G, (ed.) State andChurch in the European
Union, Nomon Verlagsgesellschaft, Baden, 1996 [hereafter, Ferrari], pp.187-189: the author
discusses the civil law effects of marriages celebrated under the 1983 Code of Canon Law. He
states: "Art.8 of the [Lateran] Treaty recognizes civil law effects of marriages concluded
according to Canon Law provided that the certificate issued by the clergyman conducting the
marriage is transferred to the state register". He goes on to state further: "The same article also
provides that the court of appeal may on application of the parties declare annulments of
marriage declared by the Church courts and having the force in Canon Law to be valid in Italian
law: to do this, the court of appeal must however establish that (a) the Church court had
jurisdiction... (b) during the canonical procedure the right of the parties to maintain and defend
litigation was respected in a way not deviating from the fundamental principles of Italian law;
and (c) the further preconditions for the recognition of foreign judgments in Italy were met".
44 Pellegrini v Italy (2002) 35 EHRR 2, paras.39-47: "...The Court notes first of all that the
declaration of nullity of the applicant's marriage was issued by the Vatican courts and then
80
Fair Trial Obligations in InternationalLaw
Whilst the European Court of Human Rights is not able to order the Holy See or
the Vatican City to rectify procedural defects, the Pellegrini case is a potent
signal to the Roman Catholic Church that the international community expects the
Church's procedural standards to comply with international law.
4. THE RIGHT TO A FAIR TRIAL V. RELIGIOUS LIBERTY
The extent to which fair trial norms apply to the Church must also be balanced
against the right of a Church to engage freely in the practise of religion without
45
being encumbered by secular laws, including international fair trial standards.
There is a growing body of evidence which suggests that States are beginning to
recognise the need for a balance between these two claims. The following examples
illustrate the issue at stake. In Belgium, where the majority of the population is
Roman Catholic, and churches are afforded a constitutional right of self-
determination (Art. 21 of the Belgian Constitution), 46 a decision of the Appeal
Court of Mons, whilst it acknowledged freedom of religion enshrined in the Belgian
constitution, held that "[t]he Church had to meet the demands of Article 6 of the
made operative by the Italian courts. The Vatican has not ratified the Convention, and the
application is moreover directed against Italy... [T]he task of the Court [is] therefore to enquire
not into whether the proceedings before the ecclesiastical courts complied with Article 6 of the
Convention, but into whether Italian courts, before granting confirmation and execution of the
said annulment, duly checked the proceedings relating thereto satisfied the guarantees contained
in Article 6.. .The Court of Cassation held, essentially, that the ecclesiastical proceedings did
comply with the principle of an equal hearing... The Court does not find these arguments
sufficient. The Italian courts seem not to have thought important that the applicant had not had
the right to inspect the evidence given by her ex-husband and the supposed witnesses. However
the Courtpoints out that right to an equal hearing,which is one of the elements of afair hearing
within the meaning of Article 6 implies that each party to a trial, criminal or civil must in
principlehave the rightto inspect and discuss every document and observationpresentedto the
court with a view to influencing [the] decision [italics added]... In these circumstances, the
Court holds that the Italian courts failed in their duty to check before granting confirmation and
execution of the judgment of the Roman Rota, that the applicant had enjoyed a fair trial in the
ecclesiastical proceedings".
This matter represents a very large and important subject, and this does not form part of the
central consideration of this study.
46 Torfs, "State and Church in Belgium" in Robbers (1), note 47 p. 18 .
ECHR". 47 In Portugal, where the Roman Catholic Church is the defacto national
church, Vitalino Canas raises the issue of conflicts between a religious
.denomination and its members; although the doctrine of voluntary membership
would enable some self-restriction of individual rights, this has its limits: the
"restriction of fundamental rights of members of denominations within these
denominations cannot be allowed to injure the core of the rights. And there are
rights that cannot be restricted at all". 4 Finally, in South Africa, the Constitution
offers a fundamental balance in the following terms: "The rights of cultural, religious
and linguist communities must be exercised in a manner consistent with the Bill of
Rights".49
II. THE CHURCHES OF THE ANGLICAN COMMUNION AND

FAIR TRIAL OBLIGATIONS
There is no formal body of canon law applicable globally to the churches of the
worldwide Anglican Communion) 0 Each church, in the communion," is
7 The Decision of the Court ofAppeal of Mons, 7 January 1993. See Torf in Robbers (1) note 47,
pp. 21-24. The author refers to previous decisions where the courts have checked purportedly
unfair decisions of the church courts. With regard to a decision given by the Tlribunal of
Brussels, 30 May 1891, it was stated: a "civil judge is not only entitled to evaluate whether a
decision has been taken by the competent authority, but also its seriousness and its conformity
with the external characteristics of law'.
48 Canas, "State and Church in Portugal" in Robbers (1) note 41, p. 276.
49 The South African Constitution, s.3. See also, Cooray, "The Protection and Promotion of
Religious Rights", in (2000) 12 Sri Lanka JIL 153 at p. 177.
10 However, at their meeting in 2002, '[t]he Primates recognized that the unwritten law common
to the Churches of the Communion and expressed as shared principles of canon law may be
understood to constitute a fifth "instrument of unity": see N. Doe, 'The common law of the
Anglican Communion', 7 EcclesiasticalLaw Journal(2003) 4 at 16, n. 62.
" The Church of England is 'a fellowship of churches which have an historical association with
the British Isles, have certain characteristics in common, including standards of doctrine and
faith, are in communion with the See of Canterbury and recognise the Archbishop of Canterbury
as their focus of unity and uphold and proclaim the catholic and apostolic faith based upon the
scriptures interpreted in the light of the Christian tradition. It includes the Church of England,
the Episcopal Church of Scotland, the Church in Wales, the Anglican Church in Australia, the
Church of Ceylon and the Episcopal Church in the USA and many other Churches in the
Commonwealth and elsewhere that share the same traditions of doctrine and worship. See
further L Leeder, Eclesiastical Law Handbook (1997) 422-425 Sweet and Maxwell and Halsburys
Laws ofEngland (4"' ed) Vol 14 paras 313-314
autonomous and has its own system of government and law. 2 This section
examines the status of these churches in international law, the increasing awareness
of human rights issues within Anglican churches, and the extent to which they
may be under a duty to observe international fair trial guarantees to their subjects.
1. THE POSITION OF ANGLICAN CHURCHES IN INTERNATIONAL

LAW
Before considering the position of the Church in international law, we should first
consider its position under the civil laws of the States in which they exist. This
position is complex but fairly well-settled. Anglican churches fall into three broad
categories under civil law: non-established, disestablished, and established or quasi-
established53 . The vast majority of Anglican churches are non-established, and
are generally treated by civil laws as voluntary or private associations, organised
on the basis of consensual compact54 . As voluntary associations, such churches
may enjoy juridical personality under the law of the State in which they exist,
typically as corporate bodies, or else (if the church associations are unincorporated)
institutions within them may havejuridical personality.5 The disestablished churches
52 Lambeth Conference 1930 Resolution 48, 49 states: "[W]ithin the Communion of churches
'uphold and propagate the Catholic and Apostolic faith and order as they are generally set forth
in the Book of Common Prayer authorized in each church". See, Doe, N., Canon Law in the
Anglican Communion: A Worldwide Perspective, Clarendon Press, Oxford, 1998 [hereafter,
Doe(l)], pp. 8-12.
3 The term 'established' is capable of a variety of meanings. In one sense, any church whose
rights are protected by the state can be said to be established but, as used here, 'established' has
a deeper meaning, when all the provisions making up the organisation receive the sanction of
law and establish that system exclusively throughout the state. A disestablished or non-
established church is free from State control as regards doctrine, government and discipline;
these matters depend upon their own constitutions. See Hill M, Ecclesiastical Law (2A ed 2001
Oxford) 8-9.
5 For example in Australia, s 16 of the Constitution precludes any church from being designated
as a state church. The role of the state is summed up by the High Court as follows: 'Under our
law, the State has no prophetic role in relation to religious belief; the State can neither declare
supernatural truth, nor determine the paths through which the human mind must search in a
quest for supernatural truth: Church of the New Faith v Commissioner ofPay-Roll Tax (Vic)
(1983) 154 CLR 120 at 134. All churches are treated in law as being voluntary associations:
Cameron v Hogan (1934) 51 CLR 358 at 370-371.
5 For example, the Church of Ceylon (Sri Lanka) was once known as Church of England in
Ceylon was the defacto established Church in Ceylon. By Ordinace No.6 of 1885 it was dejure
are broadly in the same position as the nonestablished churches, though in some
cases such churches retain key links with the State. 6 By way of contrast, the
Church of England is an established church, its law forming part of the law of the
land," and whilst the so-called quasi-established churches generally have the status
of voluntary associations in civil law, their systems of government and law may in
a fundamental way rest on secular legislation.5"
If that is the position of the Anglican Church under the civil law of the States in
which they exist, its status under international law is more difficult to ascertain.
Although there is no direct authority on the matter in international law, by reference
to first principles, we can advance the following propositions: First, Anglican
churches do not have the status of international persons under the international
treaty law.5 9 It is a fundamental principle of international law that international
disestablished. In 1930 the churches of India, Pakistan, Burma and Ceylon became a province
of the Anglican Communion. In 1972 by Act No. 6, two diocese were erected within the same
province. Today by the Church of Ceylon (Incorporation) Act No.43 of 1998, it' has become a
national non-established church: see, Dias, "Religion and Law" 8 Sri Lanka JIL 151 at p.186
and Sri Lanka, p.6.
16 The Church in Wales, for example, was disestablished as a result of the Welsh Church Act 1914,
though some vestiges of establishment survive, such as the duty to solemnise in the parish
church the marriages of parishioners and the right to burial in the parish churchyard. Whilst
generally the laws of the church represent the rules of a voluntary association, the laws of the
church on burial, for example, are part of the public law of the State: see N. Doe, The Law ofthe
Church in Wales (Cardiff, 2002) Ch. 1.
57 See M. Hill, EcclesiasticalLaw (2n edn., Oxford, 2001) Ch. 1. It is accepted that the Church of
England is established by law and is regarded as the state recognised form of religion. Thus the
constitution of the Church of England, as established by law consists of those ordinances,
authorities and provisions that are judicially recognised. An established church has significant
duties and responsibilities: relevantly, by the very nature of establishment, it is susceptible to
closer scrutiny under the Human Rights Act 1998 than for other religious organisations in the
UK.
58 For example, in New South Wales '[t]he Constitution of the Anglican Church.. .came into
existence formally on the enactment of the Church of England in Australia Constitution Act
1961': Scandrettv Dowling [1992] 27 NSWLR 483 at 489.
5 They do not satisfy the criteria of international law considered above in relation to the Roman
Catholic Church (at fn 10). These criteria are enumerated in Article 1 of the Montevideo
Convention of 1933 on the Rights and Duties ofa State. They are: (a) a permanent population
(b) a defined territory; (c) a Government; and (4) a capacity to enter into relations with other
states.
institutions (such as the UN Human Rights Committee or Strasbourg institutions)

cannot directly interfere with the decisions made by individuals orjuridical persons
under domestic State law; needless to say, not being international persons, they
are not parties to treaties.
Secondly, however, Anglican churches may have the status of objects of

international law. In traditional international law doctrine juridical persons under
the domestic laws of a particular State are not considered persons or subjects in
international law, but rather as objects of international law. 60 A subject in
international law is an entity which enjoys both rights and obligations, whereas the
object is an entity which has obligations only. 6' As such, churches which have
juridical personality under the domestic laws of a State may be classified as objects
of international law, but not as persons or subjects of international law. 62 Such
churches may bear duties, but not rights. Consequently, churches might be bound
by the duties imposed under the customary norms of international law which
represent the jus cogens.63 Modern international law recognises that customary
international norms in the nature of/us cogens (for example, the right to be free
from genocide or torture) are binding on every juridic person under international
law or under the domestic law of a State.
6' See, McCorquodale, "The Individual and the International Legal System" in Evans, D., (ed.)
InternationalLaw (Oxford, 2003), p.301: "A subject of [the] international legal system, can be
considered to by one which has direct rights and responsibilities under that system .... Individuals
are objects, either in the same sense as territory or rivers are objects of the system... or in the
sense that they are beneficiaries under the system, so that treaties on, for example, diplomatic
persons or commerce, indirectly benefit individuals".
61 Ibid.
62 The principle in international is quite well established that either a natural person or a juristic
person under the domestic law per se has no personality before international law. See, Home
MissionarySociety Claim (US v GreatBritain), (1920) 6 RIAA 42. For a summary of facts, see
arris (1), p.490. In this case certain members of an American missionary organization working
in Sierra Leone (a British Protectorate) were attacked and murdered during a rebellion resulting
from a tax ("hut tax") imposed by the State. The USA espoused the claims on behalf of the
missionary society, since it was not a person in international law.
63 See the discussion of"jus cogens" at note 1 above
64 McCorquodale, fn-60 p.301
Thirdly, and similarly, individuals within Anglican churches may be bound by

customary international norms as objects of international law. It is a fundamental
principle of international law that individual persons are not considered persons or
subjects in international law.64 Rather, individuals are classified as objects of
international law; 65 they are subject to the duties imposed under the jus cogens.
Traditional international law has consistently held that individuals who violate
international customary norms (sea piracy was an offence of this nature) would
be liable. 66 As such, individual members or officers of churches qua persons may
be classified as objects of international law. 67 Such individuals may bear duties,
but not rights, and would be bound, once more, by the duties imposed under the
jus cogens. Indeed, this was the basis on which proceedings were instituted
68
against clergy involved in genocide in Rwanda.
2. ANGLICAN APPROACHES TO HUMAN RIGHTS
A recent survey of the resolutions of the Lambeth Conference 69 and of the

constitutional documents of churches in the Anglican Communion suggests that
Anglicans in recent years have developed key concepts about human rights.70
First, for the Lambeth Conference, "human rights exist as fundamental to, and of
65 Ibid
66 Harris, D.J., InternationalLaw: Cases and Materials (London, 1999), Chapter 2; Akehurst,
M., Modern Introductionto InternationalLaw (7"'. revised edition by P.Malanczuk, Routeledge,
London, 1997), hereafter cited as Harris(I), chapter 2.
67 Individuals or members of a private association of a religious nature or the association itself are
only objects for the purposes of international law: See, McCorquodale, note 60, p. 3 0 1 .
61 Lee, "The Rwanda Tribunal" (1996) 9 Leiden JIL 37; Aktavan, "The International Criminal
Tribunal fro Rwanda: The Politics and Pragmatics of Punishment" (1996) 90 AJIL 50 1; United
Nations and Rwanda, 1993-1996 UN Blue Book Series, 1996.
69 To co-ordinate the work of the Anglican Communion, a conference of-Bishops under the
presidency of the Archbishop of Canterbury meets periodically at Lambeth. The body has no
legal basis but statements issued by it carry great weight. This body depends for its authority
on the voluntary acceptance of the resolutions which it passes by the various churches that are
represented. At present, conferences take place every ten years.
10Doe, "Canonical Approaches to Human Rights in Anglican Churches", in Hill, M. (ed), Religious
Liberty and Human Rights, Cardiff, 2002, pp. 205-206.
universal importance for, the dignity of the human person; their foundation is the
idea of the equality of humans who themselves are created in the image of God".7'
Although the Lambeth Conference has developed the idea that the church has
the responsibility to promote human rights in civil society, the Conference has not
systematically articulated the idea that human rights also apply to life within the
72
church.
Secondly, a small number of churches have canonical institutions responsible for

the promotion of human rights in civil society."
Thirdly, whereas the Lambeth Conference has not explicitly acknowledged that
human rights standards apply within the church, the laws of several churches,
notably in Africa, contain basic provisions which recognise the dignity and equality
before God of persons, and which forbid discrimination in the membership and
Lambeth Conference 1998 Res. 1.1: the Conference affirmed and adopted the (1948) UN
Universal Declaration of Human Rights, on the 50, Anniversary of its proclamation; LC 1968
Res. 16: 'the conference calls upon all the churches to press upon governments and communities
their duty to promote fundamental human rights and freedoms among all their peoples; Called
to Full Humanity, LC 1998, Official Report, 87: 'In Obedience to the teachings of Christ, the
Church is obliged to live and proclaim the gospel and to promote and protect human rights'.
72 However, the Conference recognises a duty on all 'governments and communities' to promote
human rights and on all others over whom [members of the Conference] may exercise any
influence': LC 1998, Res. 1.1 (a). Moreover, one Conference report proposes that 'the Church
discerns and identifies all discriminatory practices in its structures, images and symbols, and
commits itself to reform and renewal': Calledto FullHumanity, LC 1998, Official Report, 86.
'3 Churches that attempt to promote human rights in civil society through establishments and
working towards this goal are: New Zealand Const. Preamble: "..the mission of the church
includes.., seeking to transform unjust structures of society, caring for God's creation...";
Church of England Synodical Government Measure 1969, s.2: 'one of the legal functions of the
General Synod is to consider and express its opinion on any matter of religious importance;
Philippines Const. Art.1.1. Cans.1.2.2(d): "...one of the functions of the Provincial Synod's
Commission on Social Concerns and Development is to study the nature and root causes of
poverty and underdevelopment in the country and review participation of the Church in the
development process"; West Indies Can.33. 1.c: "the duty of the Commission on Social Justice
is to keep under constant review all matters relating to social justice and human rights in the
constituent territories of the Province and to make recommendation to the Synod on the
development of strategies which will assists the church in furthering these issues". See also,
Doe note 52, pp. 19 1 - 19 6 .
government of the institutional church. 74 This suggests a presumption, surfacing

in canon law, that human rights may apply internally to churches.
Finally, however, in most Anglican churches there is no explicit canonical appeal

to human rights? Rather than an orientation towards human rights, the evidence
suggests thatjuridical relations within churches are mainly determined by positive
duties; laws do not provide a compendium of fundamental rights. In short, it
would seem that neither in the Lambeth Conference resolutions nor within the
general canon law is there a worldwide recognition of the applicability of human
rights within Anglican churches.75
3. ANGLICAN CHURCHES AND FAIR TRIAL STANDARDS IN

DOMESTIC AND INTERNATIONAL LAW
(1) Anglican Churches and Fair Trial Norms under Domestic Civil Law
Religious freedom is a respected, if not guaranteed, right under the common law.
There is, therefore, a reluctance of secular courts to interfere with internal church
matters. This applies to matters dealt with by the disciplinary tribunals ofAnglican
'4 Fundamental rights are most commonly incorporated in the canonical documents of some
American and African churches. First, some commonly declare the equality of all individuals
before God: Papua New Guinea Const. Art.3: "All persons are of equal value in the sight of
God"; similarly in Melanesia Const. Art.4; Tanzania Const. Art.III.5. Secondly, laws prescribe
that the church is responsible to provide for the needs of all people committed to their charge:
Melanesia Const. Art.4: "the Church will take care of people to. provide for the needs of all
people committed to its charge"; similar formulas are found in Papua New Guinea Const. Art.3;
Central Africa Const. Fundamental Declarations III; Uganda Const. Art.3; Tanzania Const. Art.
111.5: "the church must make a special effort to fulfil its duties to the faithful". Thirdly,
provisions debarring discriminations on different grounds are indicated: Central Africa Const.
Fundamental Declarations III require non-discrimination on grounds of race; Sudan Const. Art.
2 (c) is similar and so is in Jerusalem and Middle East Const. Art.4; Non discrimination on
grounds of ethnicity is held by Indian Ocean Const. Art.3 and Zaire Const. Art.4; Non
discrimination on grounds of nationality is held by Tanzania Const. 111.5: "The church will not
allow any discrimination-on grounds of nationality". See also, Doe(l), note 52, pp. 16 4 - 166
7 Doe note 52, p. 19 1 . Perhaps ECUSA Cans. 1.75.5 is one of the very few exceptions, which
states: "No one shall be denied rights, status... in the life of this Church because of race, sexual
orientation.. .otherwise specified by Canon"; a few others along the lines of ECUSA are,
Philippines (Can. 11.2.4) and Burundi (Const. Art.4).
churches, whether non-established, disestablished or quasi-established.7 6 However

if, in disciplinary cases, the church fails to comply with the principles of natural
justice, courts are less reluctant to intervene," Courts in the USA have said that
the churches, as voluntary organisations, may establish courts to regulate the
relationships of their members, and hence the civil courts will not intervene, except
when a citizen's civil right is affected.78 In Sri Lanka, too, the courts will intervene
in a dispute involving religious issues only where a civil or property right is involved7 9;
76 Hill, "Church Autonomy in the United Kingdom" in Roberrs, G, (ed) Church Autonomy: A
Comparative Study (Frankfurt, 200 1). The author states thus: "The experience of continental
jurisprudence of Strasbourg seem to indicate a reluctance on the part of the European Court and
the Commission to enter into the internal affairs of religious organizations in member States
whether established or not".
17 There is evidence to this effect from Canada, New Zealand, Wales and Ireland. See Doe(l),
note
52, pp.101-3; in Canada, the civil courts have required ecclesiastical courts to observe the
principles of natural justice: Halliwel v Synod of Ontario(1884) 70R67(Ch.D). See M. Oglivie,
"Canadian Civil Courts Intervention in the Exercise of Ecclesiastical
Jurisdiction", Studia
Canonica, 31(1997)49. In New Zealand the civil courts have held 'that the Anglican church as
a voluntary organisation is competent to constitute a tribunal.., not courts, but their decisions
will be binding.., if they are consonant with the principles ofjustice' (Baldwin v Pascoe(1889)
vol.7 NZLR 759). In Colquhoun v Fitzgibbon (1937) IR 555, the Irish High Court did not
intervene since the Court of the General Synod had acted within its competence. The Welsh
Church Act 1914, s.3 provides that ecclesiastical courts have no coercive power within the civil
sphere. The reluctance of the secular courts to intervene in the Welsh Church matters is evident
in R v The ProvincialCourt of the Church in Wales, exparte Williams (I 998/CO/2880/98). See
ex parte Clifford Williams (1998) CO/2880/98 which relied on ex parte Watchmann (1992)
I WLR 1306 at 104: "It was held that there was no breach of natural justice: the applicant
claimed that the bishop 4ciing as prosecutor and sentencer was a breach of natural justice and as
such, in contravention of the ECHR, Art.6(l); the applicant cited the case of Findlay v UK 24
EHRR 221 in which it was held that a Court Martial was not an independent and impartial
tribunal, as required by ECHR Art.6(l); the High Court concluded: 'the applicant, by being
ordained in and serving as a minister of the Church of Wales, consented to the procedures set out
in its Constitution, which were followed in this case. He cannot, in those circumstances, have,
by reason of the procedures themselves, a legitimate sense of grievance. Further, there is, in my
judgment, no real risk of bias. The Constitution makes it clear that Bishop cannot play any part
in the decision as to guilt; and as to sentence, he cannot impose any greater sanctions than those
recommended by the Court. The decision of the European Court of Human Rights in Findlay is
not in point. The jurisdiction of the Provincial Court does not involve the applicant's "civil
rights and obligations" under Article 6 of the Convention".
78 The courts denied the petition for a writ of certiorari in Serbian EasternOrthodox
Diocesefor
the USA and Canada v Milivojevich, 99S.Ct.3096; Maxwell v Brougher, 222 P 2d. 910
(California).
9 See PitcheTamby v Cassim Marikkar (1914) 18 NLR 111. Though this case refers to a religious
dispute between a Hindu and a Muslim on a religious controversy, the legal principle is equally
they have kept a safe distance from matters of religious doctrine and ritual.80 In
Australia, the position is similar"'
The laws of some Anglican churches themselves encourage non-interference by

the State courts in the ecclesiastical disciplinary process, through rules which
discourage their members from seeking remedies from the civil courts.12 However,
this is not always the case. For example, the law of the Anglican Church in New
Zealand (a non-established church) provides: "Any judgment not appealed from,
or the appeal from which is not prosecuted to hearing, and any judgment pronounced
by the [church's] Court ofAppeal in pursuance of this Canon, shall be deemed to
be, and shall have the same force as, an award made in reference to arbitrations
by consent of the parties, and may be enforced by an appropriate proceeding of
the High Court ofNew Zealand accordingly". 3 Such canonical provisions, enabling
true of all religions in Sri Lanka. However, there are exceptions to this rule. Certain areas of
Muslim law in Sri Lanka are governed by Statute. Recently, through the Church of Ceylon
(Incorporation) Act No. 43 of 1998, the disestablishment of the Church of Ceylon (commenced
by Ordinance No.6 of 1885) was brought to completion. Under the 1998 Act the-Anglican
Church of Ceylon (Ceylon is called Sri Lanka after the 1972 Constitution, but the Anglican
Church in Sri Lanka is called Church of Ceylon): "The trustees of the Church of Ceylon and the
Bishops of the Church as the legal persons can hold property, can sue and be sued... in all other
matters theAct recognizes the complete freedom of the Church to manage its own affairs". This
was the statement made by the then Bishop of Ceylon, while the law was at the bill stage, prior
to the enactment in 1998. This citation is from, Dias (ed.), "Law and Religion" 8 Sri Lanka JIL
151 at p. 186.
80 For an example of such a matter see Ayesa Oemma v Sago Lebbe (1863-68) RamanadanReports
656. In this case the court held that a refusal by a priest to attend a burial and perform
ceremonies was a dispute of religious ritual in which the court would not intervene. This
principle equally applies to the Anglican church in Sri Lanka.
81 In AG (NSW) v Grant (1976) 135 CLR 587, Gibbs J of the High Court provided a general
account of the bases upon which the courts would intervene in internal church affairs. The first
is where the members are bound together by a consensual agreement out of which legally
enforceable rights and obligations may emerge. The second relates to property disputes.
82 Episcopal Church of the USA (ECUSA), Can.IV. 14.2-3: "No member of the clergy of the church
may resort to secular courts for the purpose of delaying... Moreover no secular court shall have
authority.., over ecclesiastical tribunals"; "no secular court shall have authority to review... any
proceedings under this title". Similar provisions are found in North India Const.II.V.VII:
"No...member of the Church...should go to civil court"; Papua New Guniea, Can.12: the
"(ecclesiastical ) Court... shall not be bound by any Act of the Parliament relating to evidence".
- New-Zealand D.I. 5.1. By the same token, thejudicial immunity available to the judges, officials
and'the witnesses in the secular courts is afforded to the ecclesiastical counterparts: see, New
Zealand D.I. 5.2.
Fair TrialObligationsin InternationalLaw
recourse in cases of injustice to the courts of the State, are rare in the Anglican
Communion.Y
The position with the established Church of England is somewhat different.85

Although a similar principle ofjudicial non-interference in internal church matters
applies in English courts, the fact that the Church of England is the established
church in England, that the law of the Church of England is part of the law of the
land and that its courts are courts of the realm, renders the church and its activities
more amenable to supervision and review by the State courts86 There are several
instances where the courts have exercised this supervisory jurisdiction87 There is
no doubt that prohibitory orders and mandamus would be available in respect of
ecclesiastical administration.88 However, there was some doubt as to whether
certiorari would lie to quash a church court decision.89
84 The provision certainly seems to accord with the demand for justice proposed in Evans, p.x.
8'The Church of England is treated judicially as a denomination, established by law and is

commonly understood as the public or State-recognised form of religion. However as stated in
Marshallv Graham [1907] 2 KB 112, the Church of England is not a department of the State.
The State has duty to support and assist the church to the fullest in constituting its organization
and providing sanctions of law and establish that system throughout the State to the Exclusion
of other religions. See also, Halsburys Laws of England (41h. ed.), vol. 14, para. 345.
86 EJM, s.83(2): "nothing in this legislation affects the power of the High Court to control the
proper exercise by ecclesiastical courts of their functions".

87 In Sweet v Young, (1901) P 37, the court interpreted s.2 of the Clergy Discipline Act, 1892 in the
light of the Canons 75 and 109 of the Code of Canons of 1603: in this case the accused cleric
visited a brothel and was seated on the lap of a prostitute: the defence took up the position that
his act was one of mere curiosity and was not immoral: the PrivyCouncil referring to the
definition given Beneficed Clerk vLee, (1897) AC 226 as 'acts and conduct... dangerous to the
reputation or unworthy of the character of ministers of religion' found Mr. Young guilty of
immorality: though the 1892 Act is repealed the principle holds good.
See Doe(1), note 52, pp. 100,140: a writ of prohibition was issued against an ecclesiastical court
which acted in excess ofjurisdiction (R v Tristram [1902] 1KB 816): mandamus may lie for a
refusal to exercise jurisdiction (R v Bishop of London (1889) 24 QBD 213).
89 In the past, certiorari too had been issued against the bishops: see Rice v Bishop of Oxford
[1917]PD 181 and Notely v Bishop of Birmingham, [1931 ]Ch.529 For the refusal to issue a writ
of certiorari, see R v Chancellor of St.Edmundsbury and Ipswich Diocese, ex parte White,
[1948] IKBI95. Burrows, "Judicial Review and the Church of England", LL.M Dissertation,
University of Wales, Cardiff, 1997, pp.36, 43 (hereafter referred as Burrrows) maintains that in
spite of the decision ofexparte White, the very structure of the 1963 Measure gives the High
Court power to review the acts of the ecclesiastical courts: to abridge the High Court's power
(2) Anglican Churches and Fair Trial Norms under InternationalLaw
If the domestic courts are reluctant .to intervene in church matters, the same may
be said of the application of international law, particularly international fair trial
norms. However, this issue has been raised recently with regard to the established
Church of England. Prior to the enactment of the Human Rights Act 1998,90the
Strasbourg institutions (particularly the ECHR) did not intervene in Church of
England matters. Tyler ' case Ilustrates the point. The applicant argued before
the European Commission of Human Rights, that the ecclesiastical courts of the
Church of England formed a part of the state machinery, and as such were bound
by Article 6 of the European Convention of Human Rights. The applicant argued
that there were two violations of his rights under the Convention: first, that the
ecclesiastical courts were biased, which represented a direct violation of Art.
6(1); and secondly, that his right to be presumed innocent under Art. 6(2) was
violated. The European Commission on Human Rights found the applicant's request
inadmissible.9
in respect of violation of principles of natural justice would go counter to public policy. See
also, Taylor, pp.14-5. The effect of the Human Rights Act 1998 in this regard is considered
below.
90 The Act came into effect in England on October 2, 2000. The rights are set out in Schedule 1.
Of particular relevance is Article 6 (fair trial) and Article 9 (freedom of thought, conscience and
religion). For a general comment on the impact of the Act on the courts and 'fair trial'jurisprudence
in a common law jurisdiction see Carswell, 'Rights or Wrongs? The Human Rights Act in the
Courts' 2005 79 ALJ 36
Thomas Tyler v Royaume-Uni, Requete No.21283/93 in vol.77B European Human Rights
Decisionsand Reports, 1994, p. 8 1; 3 EcclesiasticalLaw Journal(1994), p.348; Mercer, N.J.,
Consistory Courts and the European Convention on Human Rights, 1999, Dissertation in
partial fulfilment for LL.M in the University of Wales pp.31-2: in Burridge v Tyler (1992)
1All ER 437; facts are stated in pp.82-83 of the Commission Report of the European
Commisssion of Human Rights. According to this, the consistory court found Tyler guilty of
committing adultery with one Mrs. Edwards. He was deposed by his bishop. On appeal to the
Arches Court, the case was sent for a retrial. It transpired during the appeal that one of the
complainants had sold the story to a newspaper (Sunday Mirror) and the evidence of two
witnesses had been conflicting. Nonetheless, Mr.Tyler was convicted for the second time by
the consistory court and his second appeal to the Arches also was rejected. Thereafter he
petitioned the European Commission on Human Rights. In Tyler v UK, App.No.21283/93 of
April 5, 1994, the applicant's claim was that the consistory court which convicted him was a
court of the respondent government, it was biased and hence, the respondent government has
violated its obligations under Art.6 of the European Convention on Human Rights. The
However, some commentators maintain that the Human Rights Act 1998 may
remove the virtual immunity from Strasbourg jurisdiction enjoyed by the
ecclesiastical courts of the Church of England. 92 Moreover, if the courts of the
Church of England are treated as having the status of 'public authorities' within
civil law, they must not act in a way inconsistent with the fair trial norms of
ECHR: it has beenjudicially decided that some institutions ofthe Church of England
may be classified as public authorities, or at least hybrid authorities, for the purposes
of the Human Rights Act 1998. 91 Whether this will mean that the State courts
Commission was of the view that disciplinary proceedings against a cleric is not
'criminal'
within the meaning ofArticle 6 and hence the Convention guarantees do not apply. Commission
posed the question to itself, whether clerical disciplinary measures resulting in loss
of career
and financial deprivation would amount to a "dispute on civil rights and obligations".
The
answer to this question was: "The Commission is not, however, required to decide
whether the
proceedings in the present case determined the applicant's civil rights within the meaning
of
Art.6(l) of the Convention because, even if they did, the application is in any event manifestly
ill-founded".Mercer, p.22 (similar views are shared by Evans, "The New Clergy Discipline
Measure of the Church of England, (2001) Law & Justice 20. p.77) claims that
he had the
advantage of meeting Mr. Tyler and reading the papers relating to his case including
the
pleadings and affidavits. Mercer maintains that he has the impression of bias on the part
of the
Chancellor. The complainant Mrs.Whittom, who alleged that Tyler had committed misconduct
with Mrs. Edwards, was willing to change her story. She was the first to communicate
these
allegations to the Archdeacon and later was to recant. On the suggestion made to
her that
recanting amounted to her lying, she became an unwilling party to the suit. She
also had
admitted having committed adultery with Mr.Tyler. Another reason for suspicion of
bias and
lack of fairness was due to the fact that the complainant, Mrs. Whitton has sold the
story to a
national newspaper. She was promised 11,000 pounds sterling, provided the accused
was
found guilty.
92 Hill, EcclesiasticalLaw, London, second edition, 2001, p.10.
Under the Human Rights Act
1998 s3(l) 'primary legislation' must now be read and given effect in a way that is
consistent
with the ECHR. Measures (ie Church legislation passed by the General Synod, having
the full
force and effect of an Act of Parliament) are classified as 'primary legislation' in s2
1(1).
9' In the UK, as a general rule, under the Human Rights Act 1998 (s. 6), 'public authorities
must
not act in a way which is inconsistent with the ECHR. Whether this applies to
churches
depends on whether institutions within them may be legally classified as 'public authorities'.
There is considerable degree of uncertainty in this area. See Leigh, pp. 139-152:
the author
distinguishes between 'pure public authorities' (such as government departments),
private
associations, and 'hybrid public authorities'. Some institutions of the Church of England
may
fall within the last category. In Aston Cantlow ParochialChurch Council v Wallbank
(CA),
[2001] 3 WLR 1323, the Court ofAppeal held that a Parochial Church Council of the
Church of
England is a 'public authority' under s.6 of the Human Rights Act. Leigh maintains:
"This
judgment also raised the possibility that if PCC were not to be treated as a pure public
authority,
it would nevertheless be liable as a 'hybrid' public authority". Subsequently the decision
in
93
would actually be prepared to subject disciplinary process within the established

Church of England to ECHR fair trial standards, depends to a large extent on the
approach taken by a State to the implementation of international laws 94
Aston Cantlow was reversed by a decision of the House of Lords: Aston Cantlow Parochial
Church v Wallbank: [2003] UKHL 33 Session 2002-03. It is contended, however, that this
modification by the House of Lords, deciding that the PCC is not in the least a 'hybrid-
institution' is a reversal to the traditional position, which the English (secular) courts adopted
with regards to the ecclesiastical courts: a "hands-off' doctrine. It is contended furthermore, in
the climate of modern human rights agenda, that this is a retrograde step. It is worth noting the
inescapable logic and sound policy in the words of the Court of Appeal judgment: "In our
judgment, it is inescapable, that a PCC is a public authority... It is public in the sense that is
created and empowered by law; that it forms part of the church by law established; and that its
functions include enforcement through the common law liability... PCC would nevertheless
...be a legal person... of a public nature. It follows... by virtue of s.6 that its acts, to be lawful,
must be compatible with ... Human Rights Act 1998". In a purely legal positivist view, the
House of Lords decision operates as the law of the land. It is contended, that the law ought to
change in the light of the higher principles of justice and fairness, and the Court- of Appeal-
decision is very much in line with the main argument of this paper.
The other churches or other religious institutions such as Judaism or Islam may be considered
private associations, which may perform public acts resulting in being 'hybrid public authorities'
. See (p. 142): the cases of Exparte Wachmann [199312 All ER 249 and Expartep.Sulaiman
Ali [1992] COD 132: the decisions of the Chief Rabbi and the Imam respectively were not
subject to judicial review, since their decisions did not have a public law element. However the
churches, which are private organization may perform public functions in spheres of religious
education (under the Schools Standards and Framework Act 1998), in admitting pupils to
parochial schools (Choudbury v Governors ofBishop ChallonerR. C Comprehensive School,
[1992] 3 All ER 277) and religious discrimination in employment of teachers: SSFA 1998, ss.
58-60. Under these circumstances, even such (religious) private bodies also will be subject to
Human Rights Act. It is contended that for both kinds of institutions, namely those of the
nature of PCC and private associations performing public functions, fair trial norms should
apply.
For a general study on the application of international law within the domestic sphere, see
Akheurst, M., Modern Introductionto InternationalLaw, 7th revised edition by P. Malanczuk,
Routeledge, London, 1997 (hereafter referred as Akheurst, pp. 63-71. According to Akheurst
there are two basic theories with regard to the relationship of international and domestic law.
The first is dualist (or pluralist) theory and the other monist theory. The first, akin to a
positivist perspective, assumes that international law and domestic law are two separate systems
which exist independently of the other. The second, closely linked to the Natural Law School
has a unitary perception of 'law' and understands both international and municipal law as
forming part of one and the same legal order. The most radical version of the monist approach
was formulated by Hans Kelsen. In his view the ultimate source of the validity of all law
derived from a basic rule (Grundnorm) of international law. Hence according to him all rules of
international law were supreme over municipal •law.
In the past England and other common law jurisdictions have taken a strict dualist position with
Fair Trial Obligationsin InternationalLaw
In a State that has a dualist position, international law treaties are not enforceable
in the absence of an enabling legislation. If, however, decision of the Court of
Appeal in Aston Cantlow Church Councilv Wallbank,95 were upheld the Human
regard to treaties, regarding them as enforceable only upon the enactment of enabling legislation.
This was the stand taken in Walker v Baird (1892) A.C.491. See also, Kaur v Lord Advocate
(1982) CORRECT CITE (98 LQR Journal) In this case the English courts refused to enforce
certain provisions of the European Convention on Human Rights on the basis that such
enforcement would amount to an usurpation of the legislative power by the executive.
In Sri Lanka too similar reasoning was adopted by the court in Leelawathie v the Defence
Minister Leelawathie v Defence Minister,68 NLR 487. In this case, Sansoni J. stated that the
right to equality guaranteed by the UN Declaration on Human Rights is not enforceable within
the domestic law of Sri Lanka, though that right has a very high degree of moral authority. It
should be noted that the UN Declaration is a statement of policy and is not a binding treaty.
In Australia, the traditional dualist position has been reviewed by the executive and the judiciary.
In Ministerfor Immigrationv Teoh (1995) 183 CLR 273 the High Court identified a significant
role for human rights treaties in administrative law only to have the Executive reject its view. At
issue was the status of the UN Convention on the Rights of the Child, a treaty ratified by the
Government but not enacted into law. A majority of the Court adopted a cautious approach to
the use of treaties in developing the common law, deciding that the Department should consider
a ratified treaty in reaching a decision (because a ratified treaty 'created legitimate expectations'
that the treaty obligations would be reflected in administrative policy), although it was not
bound by its terms. The Government, however, condemned the decision as an inappropriate
judicial excursion into the political realm and immediately overrode the impact of the decision
by a formal statement asserting that the ratification of a treaty could not give rise to a legitimate
expectation that administrative decision makers would take the treaty obligations into account.
The situation has improved in some jurisdictions since then. In England after the enactment of
the Human Rights Act 1998, the European Convention on Human Rights has become a part of
the domestic law. In Sri Lanka, the ICCPR and its First Protocol have been ratified, which bind
Sri Lanka before the international forums. The courts have moved away from the stringent
dualistic policy: see Joseph Perera v Attorney General: (1992) 1 SLR 199. In Perera, the
Supreme Court referred to the UN Declaration on Human Rights for guidance on the right of
freedom of speech. The Court observed: "... .there is no such thing as absolute and unrestricted
freedom of speech and expression wholly free from restraint ...Art.29(2) of the UDHR sets
forth the cases in which this freedom of expression may legitimately be restricted". In Australia,
there is a view most strongly advocated by Kirby J, that, where the Constitution is ambiguous,
the High Court 'should adopt the meaning which conforms to the principle of universal and
fundamental rights rather than an interpretation which would involve a departure from such
rights': Kirby J in Kartinyeri v Commonwealth (1998) 195 CLR 337. Also see Kirby M,
'Domestic Implementation of International Human Rights Norms' (1999) 5 AustralianJournal
ofHuman Rights 109.
95The Court of Appeal in its unanimous judgment in Aston Cantlow Church Council v Wallbank
[2001] 2 All ER 363, stated: "Our task is not to chase around in the European Human Rights
Reports like black-letter lawyers seeking clues. In the light of s. 2(1) of the Human Rights Act
Rights Act 1998 would remove the virtual immunity from Strasbourgjurisdiction,
which the ecclesiastical courts of the Church of England enjoyed until that
enactment. No doubt the domestic courts always enjoy a margin of appreciation:
Handyside v UK.9 The Act will apply regardless of when the ecclesiastical
Measures were enacted. 97 Hence all primary and secondary legislation ought to
be interpreted in the light of the 1998 Act and the Strasbourg jurisprudence.98
However this provision ought to be read in conjunction with the right to freedom
of religion, which is also guaranteed by s. 13(1) of the Act. 99 The latter provision
appears to create a spiritual sphere into which the courts will not trespass.
However, the competent court which finds an ecclesiastical Measure inconsistent
with the Act may make a declaration to that effect. 00 Nonetheless, the fast track
remedial action by ministerial intervention is not available in respect of Church of
England Measures.1°
1998 it is to draw out the broad principles which animate the Convention". See also, Hill,
EcclesiasticalLaw, London, second edition, 2001, p.10, hereafter referred as, Hill(3). The
House of Lords reversed the Court of Appeal decision of Aston Cantlow ParochialCouncil v
Wallbank, [2003] UKHL 33, session 2002-03. Lord Nicholls of Birkenhead said: "A parochial
church council is not a 'core' public authority, nor does it become such by virtue of s.6(3)b of
the Human Rights Act when enforcing a lay rector's liability for chancel repair... s. 2 of the
Chancel Act 1932 proVides that if the defendant would have been liable to be admonished to
repair the chancel by the appropriate ecclesiastical court, the court shall givejudgment for cost
of putting the chancel in repair. When a parochial church council acts pursuant to that provision
it is acting within the scope of the exception set out in s. 6 (2) (b) of the Human Rights Act". See
also, note 112 on p. 36.
96 Handyside v UK, (1976) 1 EHRR 737 at 753.
97 Human RightsAct 1998, s.21 and 3(2). See also, Hill, M., ReligiousLiberty and Human Rights,
Cardiff, 2002 p. 7
98 Human Rights Act 1998, s.21
9 Human Rights Act 1998, s. 13 (1): "If a court's determination of any question arising under this
Act might affect the exercise by a religious organisation (itself or its members collectively) of
the Convention right to freedom of thought, conscience and religion, it must have particular
regard to the importance of that right. See above under the subheading in this chapter, "Fair
Trial v Religious Rights".
100The competent courts include the High Court, the Court ofAppeal, the House of Lords and the
Privy Council: see, s. 4(5). The High Court has relevance for the Church of England in relation
to committal for contempt and judicial review. The competence of Privy Council over the
ecclesiastical courts is of more than theoretical importance: Cheesman et al. v Church
Commissioners [2001] AC 19.
101Human Rights Act, ss. 10(9).
With the human rights activism that is prevailing now in the context of the
international community, it would be possible also to argue that
fair trial norms
could form a peremptory norm (]us cogens).o 2 :If so, the Anglican
churches
either as public corporations or private associations could not be
exempt from
providing fair trial guarantees to their members. 13 Moreover it is
submitted that
the Church as the Body of Christ, which personifies law and justice,
must set an
example of fair trial to the state entities and other bodies. The most potent
argument
in favour of the requirement of the churches to observe fair trial is
the argument
based on moral authority (see the example of the Church of New
Zealand 04). A
church which has nothing to hide with regard to the honour of being
'clean' in its
just and fair procedures could easily follow the standard set by
the Church of
New Zealand
III. CONCLUSION
The final task is to summarise the position of the Roman Catholic Church
and the
Anglican Church in relation to international fair trial norms and to see
the points of
similarity and difference. What is clear is that the Churches have
more that
unites than divides. The shame is that they are united in sin, so to
speak.
We have noted that although their structures, their governance and

their standing
under international law is very different, the Churches have the same
fundamental
theological roots and a shared raison d'etre: each is made up of
the faithful,
united in the Holy Spirit of Jesus Christ and the existence of each is
justified in the
Lord's own call to share the triple roles of Christ to teach, lead and
sanctify.
102 See note I above for a discussion of jus cogens

103 In Exparte Pinochet (1999) 2 WLR 827,
the House of Lords decided to limit the traditional
doctrine of sovereign immunity to extradite the former head of Chile, who
violations of human rights; incorporation of torture as an internationalwas accused of gross
crime, and hence
enforceable within England (p.841) citing with approval Demjanjuk v Petrovosky
(1985) 603
F.Supp.1468). See also, Leigh, p. 155.
'0 See note 83 above
We have seen that beyond this spiritual unity, the Churches have much else in
common. First, neither Church is bound to comply with the international fair trial
norms as stated in the ICCPR and the ECHR (though both may be obliged to
observe fair trial norms on the grounds that such observance could be considered
a customary international norm in the nature ofjus cogens).
When we consider the extent to which the Churches observe human rights,
including fair trial norms, within their own processes, regrettably, the Churches
have a similar record. Most Anglican churches have no provisions regarding the
general protection and promotion of human rights in their formal documents. As
the canon scholar Norman Doe has said, "Neither in the Lambeth Conference
resolutions nor in the constitutional documents in the churches as a whole, there is
recognition of the applicability of human rights within the church". 10 5
When we consider the future of fair trial norms in the Churches we see again that
the Churches are under similar pressure to change direction. In the case of the
Church of England, it is very likely that the Human Rights Act 1998 will bring the
Church under more intemational scrutiny that may lead to a significant improvement
in penal processes. Perhaps the domestic courts may also take a more active
role.. 6
Although the same scrutiny may not be applied to the nonestablished or

disestablished churches in the Anglican Communion, as they are considered private
associations under domestic law, these churches, many of whom have modelled
their penal justice system on the Church of England, may be under pressure to
follow suit and become more transparent.
305 Doe, "Canonical Approaches to Human Rights in Anglican Churches" in Hill, M., Religious
Liberty and Human Rights, Cardiff, 2002, p. 191
306 On this point Leigh notes "...the (European) Convention approach to impartiality in judicial
appointments might be said to have hardened somewhat since Tyler The domestic climate has
changed too.., one cannot dismiss the possibility that domestic courts might now find that the
composition of these church courts is not in accordance with Art 6(1) and issue a declaration of
incompatibility under s.4 of the Human Rights Act 1998". Leigh, "Freedom of Religion: Public/
Private, Rights/Wrongs" in Hill, M., Religious Liberty andHuman Rights, Cardiff, 2002, p. 129
atp. 155
The Roman Catholic Church, after Pellegriniv Italy, may share with the churches
in the Anglican Communion, the prospect of greater scrutiny, directly or indirectly,
by international organisations such as the European Court of Human Rights.
Finally, and again, regrettably, the Churches share an irony, in relation to their
roots. One might expect that the Catholic Church which has canonised the Natural
law would embrace the monistic theory in relation to international law, concede
the merits of the legal regimes established by instruments of international law and
allow scrutiny of its fair trial procedures. In fact the opposite is true: the Roman
Catholic adjudicative models are so seeped in the hierarchic and policy implementing
patterns, it abhors any outside scrutiny of its inner legal culture.
In a similar vein, the Anglican churches, growing as they did out of the common
law tradition, might have been expected to honour the great common law traditions,
including the rule of law and fair trial norms. However, they do not and like their
Roman Catholic counterparts, they have been reluctant to submit to international
scrutiny of their trial processes. One would wonder why it would shield behind
the barrier of dualism that pervades the common law jurisdictions in which it
exists that has the effect of relegating international law to a position of dependency
and encourages the domestic legal system to manage its affairs introspectively
without acknowledging the rights and obligations that inhere in an international
legal regime
It is suggested that, both in the Anglican and Roman Catholic communions would
do well if they comply with the international fair trial norms. Then their admonitions
to the civil society will carry greater weight and have better moral authority. It
would go some way to restoring faith in the Church as a moral force, as a true
defender and promoter of human rights in general and fair trial in particular.

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FAIR TRIAL OBLIGATIONS IN INTERNATIONAL LAW:

* Director, Post Graduate Studies, Deakin University, Australia

I. THE ROMAN CATHOLIC CHURCH AND INTERNATIONAL

1. THE CHURCH IN INTERNATIONAL LAW

This State was created with temporal sovereignty to assure independence of

Lumen Gentium, para. 18.

end, an instrument of another pre-existing juridical system, from which it cannot

Universal Postal Union and the International Telecommunication Union. Moreover,

2. THE APPROACH OF THE CHURCH TO HUMAN RIGHTS

Pontifical rejection of discourse about human rights continued in the nineteenth

exposition on Christian thought in contrast to paganism (p.9). In Books XI -XXII he offers a

central, 2 in the Pastoral Constitution Gaudium et Spes, 2 9 and later in the

3. THE CHURCH AND ITS OBLIGATIONS OF FAIR TRIAL

38 E. McDonagh, "A Theology of Governance", in Governance and Authority quoted in Hose,

Nonetheless, there is some evidence from individual European countries as well

The facts are straightforward. Pellegrini was the wife of G. G, successfully

4. THE RIGHT TO A FAIR TRIAL V. RELIGIOUS LIBERTY

II. THE CHURCHES OF THE ANGLICAN COMMUNION AND

1. THE POSITION OF ANGLICAN CHURCHES IN INTERNATIONAL

institutions (such as the UN Human Rights Committee or Strasbourg institutions)

Secondly, however, Anglican churches may have the status of objects of

Thirdly, and similarly, individuals within Anglican churches may be bound by

2. ANGLICAN APPROACHES TO HUMAN RIGHTS

A recent survey of the resolutions of the Lambeth Conference 69 and of the

Secondly, a small number of churches have canonical institutions responsible for

government of the institutional church. 74 This suggests a presumption, surfacing

Finally, however, in most Anglican churches there is no explicit canonical appeal

3. ANGLICAN CHURCHES AND FAIR TRIAL STANDARDS IN

churches, whether non-established, disestablished or quasi-established.7 6 However

The laws of some Anglican churches themselves encourage non-interference by

The position with the established Church of England is somewhat different.85

8'The Church of England is treated judicially as a denomination, established by law and is

proper exercise by ecclesiastical courts of their functions".

(2) Anglican Churches and Fair Trial Norms under InternationalLaw

would actually be prepared to subject disciplinary process within the established

We have noted that although their structures, their governance and

102 See note I above for a discussion of jus cogens

Although the same scrutiny may not be applied to the nonestablished or

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