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Max Planck Encyclopedia of Public International Law [MPEPIL]

Holy Places

Heribert Franz Koeck

Sovereignty — Trust territory and mandate — Cultural property / heritage — Freedom of thought, conscience, and religion — Religion — Erga omnes obligations — Ordre public

Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.

A.  Notion of Holy Places

The term holy or sacred places refers largo sensu to sites which are of special meaning to the followers of one or more particular religion(s). Stricto sensu it is used in connection with certain sites in the Holy Land (see also Israel; Israel, Occupied Territories; Palestine). Since it is up to the various religions to define their eventual holy places, any general categorization is necessarily a simplification.

B.  Classification of Holy Places

1.  According to Their Nature

Apart from the ostensible distinction between man-made structures and natural objects, two groups of holy places can be distinguished. The first comprises those sites that are of direct importance to religious life because they are believed to permit, when visited, direct contact with the numinous, the attainment of a higher degree of religious perfection, or a greater chance of final salvation. The second group is made up of sites of pious memory because of their involvement in historic events of religious importance, but a visit to which is not regarded as either essential or instrumental for conducting a meritorious religious life.

Examples of sites of the first kind are places of oracles such as that of Delphi in ancient Greece, holy ponds, lakes or rivers for ritual ablutions such as the Ganges in Hinduism, sacred trees revered by Germanic tribes in the early Middle Ages such as Donar’s oak in Geismar, sacred stones such as the Black Stone of the Kaaba in Mecca, holy mountains such as the Fujiyama in Shintoism, or sacred buildings such as the Buddhist Shwedagon Pagoda in Rangoon. Sometimes, indigenous peoples such as certain Indian tribes in the Americas or the Aborigines in Australia regard whole territorial areas as holy places. Examples of sites of the second kind are places related to the religious history of a people, such as the remnants of the former Herodian Jewish Temple in Jerusalem known as the Wailing Wall, or to the life of outstanding religious leaders, especially of Jesus Christ and Mohammed in relation to, for instance, certain sites in and around Jerusalem or the Dome of the Rock in Temple Mount in Jerusalem respectively.

2.  According to Their Legal Status

Though all holy places will be subject to some legal regime such as the law of property, what is of interest here is their particular legal status as holy places. Until recently, a distinction between three different kinds of holy places would have been generally accepted: those with no particular legal status at all, those with a particular status under domestic law and those with a particular status under international law. Today, the issue is more complicated, because international law may apply to holy places in two different ways: as special rules for specific holy places, and as general rules relating to holy places in general under the title of the protection of the common heritage of mankind or of the protection of human rights. Inasmuch as these general rules are binding on all States irrespective of specially undertaken obligations, all holy places can be said to have a status under international law. Since, however, these general obligations are still controversial both as regards their binding force and their scope, the special rules for specific holy places have retained their importance in practice.

C.  Holy Places and Asylum

Although holy places may, like religious premises or buildings in general, have served sometimes as places of refuge and may have been therefore legally relevant as places of asylum, the institute of asylum is not directly connected with the issue of holy places. (Asylum, Diplomatic; Asylum, Territorial)

D.  Domestic Legal Regimes

1.  Special Domestic Regimes

Some States accord a special regime to holy places situated on their territories. Thus, Israel adopted the Protection of Holy Places Law in 1967, according to which ‘[t]he Holy Places shall be protected from desecration and any other violation and from anything likely to violate the freedom of access of the members of the different religions to the places sacred to them or their feelings with regard to those places’ (Art. 1 Protection of Holy Places Law) and by which their desecration or other violation as well as any conduct likely ‘to violate the freedom of access of the members of the different religions to the places sacred to them or their feelings with regard to those places shall be liable to imprisonment’ (Art. 2 Protection of Holy Places Law). Equally, the Basic Law: Jerusalem, Capital of Israel, of 1980, provides for the protection of holy places in Art. 3: ‘The Holy Places shall be protected from desecration and any other violation and from anything likely to violate the freedom of access of the members of the different religions to the places sacred to them or their feelings towards those places’. With regard to holy places in Saudi Arabia, Art. 24 Constitution of the Kingdom of Saudi Arabia stipulates that ‘[t]he State works to construct and serve the holy places; it provides security and care for those who come to perform the pilgrimage and minor pilgrimage in them through the provision of facilities and peace’.

However, most States do not recognize and/or protect holy places as such. This is particularly true for holy places of indigenous peoples whose religious traditions have been treated for a long time as superstitious and unworthy of legal protection. Since most of them have lost the original title to their lands to the government either by law, as in Australia, or by treaty, as in the United States, and often by judicial or administrative arbitrariness or private resort to force, as in the former Latin American colonies, they do not always enjoy free access to, and rarely full protection and unfettered religious use of, their sacred sites. While some lower courts of the US have been receptive to arguments in favour of their claims, the US Supreme Court has found it difficult to grant them redress, rating the rights deriving from public property higher than requests under the ‘free exercise of religion’ clause of the First Amendment of the United States Constitution. Ironically, the ‘wall between Church and State’, allegedly set up by the same Amendment, was turned against claimants because granting them special rights to use public land for religious purposes, possibly to the exclusion of incompatible use by others, was considered to constitute a prohibited establishment of religion. It was only under the Clinton administration that an Executive Order of 1996 required governmental agencies to take the interest of those people in their sacred sites into account when deciding on the economic use of the area. A fully satisfactory solution is difficult for the reason that these sites are not always limited ‘places’ but often quite large areas such as whole valleys and mountain ranges, and that, therefore, the religious interests will have to be weighed against other reasonable interests such as the economic considerations of forestry or mining.

The situation is similar in Australia, where the policy of the government was directed, for a long time, to the assimilation of the Aborigines and not to the preservation of their traditions, religious or otherwise. Yet, their right to special treatment of certain areas relating to their spiritual heritage has been gradually recognized at least in respect of some of them, first by one or the other component state, later also by the Commonwealth. In Mabo v Queensland (1992) and Wik Peoples v Queensland (1996), the High Court of Australia recognized that the Aborigines might have retained some rights and interests in indigenous land notwithstanding British or Australian legislative and executive acts to the contrary and therefore signalled a new approach which was subsequently also adopted somewhat cautiously by the legislature in the form of the Native Title Act 1993. In New Zealand, the Historic Places Act 1993 includes definitions for both places and areas considered sacred by the indigenous Maoris in the traditional, religious, ritual or mythological sense; and various statutes, such as the Resource Management Act 1991, provide for their protection.

While questions of property rights may have a practical impact on the use of holy places, free access to, and unfettered use of, holy places does not presuppose that they are owned by the particular indigenous people or religious community. However, public or private property in holy places must always be considered to be subject to those limitations as required by their special character.

2.  General Domestic Regimes

10  Since sacred sites are often of historic and cultural value, they may profit from the legal protection accorded by a State to its so-called national heritage. Though such protection exists in many countries, it does not secure in itself the use of these sites for religious purposes. Thus, for example, in countries officially embracing an atheistic ideology—such as the former Soviet Union and other communist countries—they were often desecrated and transformed into purely museum-like institutions.

11  In times of ideological or religious fundamentalism, sacred sites even run the risk of being deliberately destroyed. Modern examples are the ‘Chinese Great Proletarian Cultural Revolution’ under Mao Zedong (1966–76) and the ‘New Communist Utopia’ of Pol Pot’s terrorist regime in Cambodia (1975–79); and more recently the destruction of the ancient colossal Bamiyan Buddhas by the Taliban regime in Afghanistan (Afghanistan, Conflict) in 2001, for the justification of which the Koran and a strictly interpreted Islamic Sharia law were invoked.

E.  International Legal Regimes

1.  Special International Regimes

12  Where holy places have been of religious importance to people of more than one political community, the question of the status of these sites has become a question of the relationship between these communities or, in modern terms, of international relations, and thus a question of international law. The essential issue was to secure access to such a site, situated in one State, to citizens of all other interested States. The usual instrument to do so was a treaty between the States concerned, necessary in times when modern international law did not yet exist or had not gained universal acceptance. In exceptional cases, such treaties have also been concluded by religious authorities. In contrast, general principles of international law concerning holy places have developed only more recently. Attempts at the internationalization of holy places have so far not led to lasting results.

13  The treaties just mentioned could be bilateral or multilateral ones, depending on the circumstances under which they were concluded and on the character of the States that were parties to them. Bilateral treaties seem to have been the preferred form in cases where the State which was the territorial sovereign, and thus the custodian of the holy place, did not share the interests of other States in the site and therefore did not care whether a solution equally satisfactory for all of them was found. While multilateral treaties created a single and uniform regime, bilateral treaties could differ among themselves and could therefore give rise to problems among the various interested States concerned if some of them enjoyed preferential treatment and thereby aroused the resentment of the others.

(a)  Multilateral Treaties

14  Multilateral treaties of this kind had already been concluded in ancient times (History of International Law, Ancient Times to 1648). In Greece, where they were well advanced, they set up special associations of city states called amphictyonies for the protection of sacred sites or specific places of worship. The most prominent of them was the Great Amphictyonic League, the object and purpose of which was the protection and maintenance of the Oracle at Delphi and of the temples of Apollo and Demeter at Delphi and Anthela, near Thermopylae. The Amphictyonic League, which was allegedly founded in or around 1100 BCE and which lasted for more than 1200 years, comprised up to 17 Member States—the delegates of which met regularly twice a year, not only for religious ceremonies but also in order to conduct other matters of common concern, including peaceful settlement of international disputes, collective measures against offending Member States and third states alike, or enforcement of the cessation of military hostilities during the holding of the Olympic Games.

(b)  Bilateral Treaties

15  With the ascendancy of Christianity in the Roman Empire, the term ‘holy places’ was understood mainly as referring to sites mentioned in the Bible. When Helena, mother of Emperor Constantine I, was placed in charge of a mission to gather Christian relics, she went to Jerusalem, where excavations led to the recovery of the cross and the nails of the crucifixion. Later on, other sites, which according to tradition were related to Jesus Christ, were identified inside and outside Jerusalem, such as, in particular, his birthplace in Bethlehem. These holy places became the target of Christian pilgrims from all over the Roman Empire and beyond.

(i)  Arab Period

16  When, in 637, after a prolonged siege of Jerusalem, the Muslim Arabs invaded the city, it is said that Omar, the second Caliph (634–44), and the Christians came to a number of agreements called the Pact or Covenant of Omar, by which the rights of the non-Muslims under Islamic rule were governed. Christians and Jews living in the city enjoyed autonomy in exchange for a special tax.

17  With the Arab conquest of great parts of the former Eastern Roman or Byzantine Empire, the setting up of Muslim States and the beginning of their intercourse with Western Europe, the era of bilateral treaties arrived. These treaties were intended to promote trade relations by granting to foreign merchants commercial facilities and guaranteeing to them certain freedoms including that of religion. Often, these grants took the form of unilateral privileges while the underlying understanding between the different powers is not directly tangible. Thus, in the ninth century, the caliph Harun al-Rashid made such guarantees to Franks, subjects of the emperor Charlemagne, who, with the authorization of their emperor, could travel to any part of the Bagdad caliphate. However, the restoration of the imperial power and the emergence of other potent states in Western Europe led there to a religious and political movement for the recovery of the holy places from Arab or, more generally, from Muslim domination.

(ii)  Crusaders’ Period

18  In 1099, Jerusalem was besieged and taken by the First Crusaders. That was the first of several conquests to take place over centuries, in which the holy place fell to ever new overlords. In 1187, the city was taken from the Crusaders by Saladin, Caliph of Cairo. In 1192, an attempt made by Richard the Lion Heart to recapture Jerusalem failed, but a treaty concluded with Saladin permitted Christians to worship at their sacred sites. In 1228 the diplomatic skill of Emperor Frederick II, and the threat then posed to the Cairo Caliphate by the appearance of the Turks, succeeded in convincing Saladin’s descendant al-Kamil that Jerusalem should be returned to Christian rule. This could not prevent the Turks taking the city in 1244, and in 1260 it fell to the Mamelukes. Various attempts by successive crusades to reconquer the city failed. Finally, Jerusalem became part of the Ottoman Empire which in 1517 took Constantinople together with the last remnants of the Byzantine Empire, and exercised control over it until 1917, when the city was taken by an allied army.

(iii)  Ottoman Period

19  Since the Turks could not be defeated, the Christian powers had to try and come to terms with them. This gave rise to the so-called capitulation regime, set up by treaties between the Ottoman Empire and European States, particularly France. Turkish capitulations were generally bilateral acts whereby definite arrangements were entered into by each contracting party towards the other, not mere concessions. The capitulation regime was denounced by the Ottoman Empire during World War I and was finally terminated by the Lausanne Peace Treaty (1923) with Turkey.

(α)  France

20  Francis I was the first king of France who sought an alliance with Turkey, a policy followed by subsequent French kings down to Louis XV. To counter-balance their alliance with ‘infidels’ they intervened in favour of Christian interests at the Porte, with consequences also for the holy places. As early as 1528, Francis I obtained the promise of Suleiman the Magnificent to maintain the Christians in possession of all places then occupied by them and to defend them against all oppression. In the capitulations of 1604, Sultan Ahmad I undertook to protect Christian pilgrims and the religious in charge of the church of the Holy Sepulchre. Under Louis XIV not only the Latin missionaries of all nationalities, but also the heads of all Catholic communities, regardless of rite or nationality, appealed to the French king, and at the recommendation of his ambassadors and consuls to the Porte obtained protection from their enemies. At the beginning of the reign of Louis XV the preponderance of French influence with the Porte was also manifested in the authority granted the Franciscans, who were protégés of France, to repair the dome of the Holy Sepulchre; this meant the recognition of their right of proprietorship in the Holy Sepulchre as superior to the claims of the Greeks and the Armenians.

21  In 1740, France—which had been of service to the Porte during its wars with Russia and Austria (1736–39)—succeeded in securing the renewal of the capitulations, with additions which explicitly confirmed the right of the French Protectorate. In subsequent treaties between France and Turkey, eg in 1802 and 1838, the capitulations—while not repeated verbatim—were recalled and the ancient privilege of France in the protection of the Christian communities of the Orient, especially those united with Rome, confirmed.

(β)  Austria

22  The Holy Roman Emperor (Holy Roman Empire) also and especially as the sovereign of Austria and the other territories under Hapsburg rule, had assurances for the protection of Christians in the Ottoman Empire stipulated in various peace treaties beginning with that of 1616, and between 1651 and 1740 obtained two capitulations and 14 firmans, ie imperial decrees of the Porte, intended to protect Christian interests in the Ottoman Empire.

(γ)  Russia

23  While Catholic Churches of the various rites and their sites profited most of all from French and imperial protection, Tsarist Russia obtained a comparable status with regard to Orthodox Churches by way of the Treaty of Perpetual Peace and Amity between Russia and Turkey of 1744 (‘Treaty of Kutchuk-Kainardji’).

(c)  Attempts for an International Regime

24  The further developments are summed up in 2004 by the International Court of Justice (ICJ) in its Israeli Wall Advisory Opinion (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory). The Advisory Opinion dealt with the holy places as an important aspect of the problem posed by the wall in question. According to the ICJ, there are ‘specific guarantees of access to the Christian, Jewish and Islamic holy places. The status of the Christian holy places in the Ottoman Empire dates far back in time, the latest provision relating thereto having been incorporated into Article 62 of the Treaty of Berlin of 13 July 1878’ (para. 129 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory [Advisory Opinion] ; Berlin Congress [1878]).

(i)  The League of Nations Mandate System

25  After World War I, the Arab territories of the former Ottoman Empire were subject to the mandate regime and handed over for administration to France and the United Kingdom:

The Mandate for Palestine given to the British Government on 24 July 1922 included in Article 13, under which ‘[a]ll responsibility in connection with the holy places and religious buildings or sites in Palestine, including that of preserving existing rights and of securing free access to the holy places, religious buildings and sites and the free exercise of worship, while ensuring the requirements of public order and decorum, is assume by the Mandatory…’ Article 13 further stated that ‘nothing in this mandate shall be construed as conferring…authority to interfere with the fabric or the management of purely Moslem sacred shrines, the immunities of which are guaranteed. (para. 129 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory [Advisory Opinion])

(ii)  The UN Partition Plan

26  On 20 November 1947, the United Nations General Assembly (‘UNGA’ ; United Nations, General Assembly) adopted Resolution 181 (II) on the future government of Palestine, which contained a partition plan. The plan would have partitioned the territory of Palestine into Jewish and Arab States, with the Greater Jerusalem area, encompassing Bethlehem, coming under international control. An entire chapter of the Plan of Partition was devoted to the holy places, religious buildings and sites. Art. 2 UNGA Res 181 (II) provided, in respect of holy places, that ‘the liberty of access, visit and transit shall be guaranteed, in conformity with existing rights, to all residents and citizens [of the Arab State, of the Jewish State] and of the City of Jerusalem, as well as to aliens, without distinction as to nationality, subject to requirements of national security, public order and decorum’.

(iii)  The Armistice Agreement

27  According to the ICJ, the Hashemite Jordan Kingdom–Israel General Armistice Agreement, which stopped the armed conflict of 1948,

provided in Article VIII for the establishment of a special committee for ‘the formulation of agreed plans and arrangements for such matters as either Party may submit to it’ for the purpose of enlarging the scope of the Agreement and of effecting improvement in its application. Such matters, on which agreement of principle had already been concluded, included ‘free access to the holy places’. This commitment concerned mainly the holy places located to the east of the Green Line. However, some holy places were located west of that line. This was the case of the Room of the Last Supper and the Tomb of David, on Mount Zion. In signing the General Armistice Agreement, Israel thus undertook, as did Jordan, to guarantee freedom of access to the holy places. (para. 129 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory [Advisory Opinion])

(iv)  The Situation Created by the Six Day War

28  As a consequence of the War of 1967, all Cis-Jordanian territories were occupied by Israel (see also Arab-Israeli Conflict). According to the ICJ, this did not affect the status of the holy places:
The Court considers that this undertaking by Israel has remained valid for the holy places which came under its control in 1967. This undertaking has further been confirmed by Article 9, paragraph 1, of the 1994 Peace Treaty between Israel and Jordan, by virtue of which, in more general terms, ‘[e]ach party will provide freedom of access to places of religious and historical significance’. (para. 129 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory [Advisory Opinion])

29  The court concluded that Israel ‘must ensure freedom of access to the holy places that came under its control following the 1967 War’ (para. 149 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory [Advisory Opinion]).

(d)  Agreements Concluded by the Holy See with Israel and with the Palestinian Authority

30  The Holy See, regarding itself as the most qualified advocate of the religious interests in the Holy Land, has to date supported an international regime which would guarantee free access to all holy places in and around Jerusalem. In the meantime, it tries to safeguard those interests in bilateral treaties, such as the Fundamental Agreement between the Holy See and the State of Israel of 1993 and the subsequent Agreement between the State of Israel and the Holy See of 1997. The Holy See also signed a Basic Agreement with the Palestinian Authority in 2000, essentially intended to assure protection for Christian holy sites under Palestinian control.

2.  General International Regimes and Principles of International Law concerning Holy Places

31  Apart from the ‘specific guarantees of access to the Christian, Jewish and Islamic holy places’ dealt with in the ICJ’s Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, which seem also to include a prohibition ‘to interfere with the fabric or the management’ of these holy places, certain principles of international law concerning the status of holy places in general can be deduced from conventions on related areas. General awareness of the issue is a comparatively recent phenomenon. In 1962, the judgment of the ICJ in the Case of the Temple of Preah Vihear (Temple of Preah Vihear Case), while stating that the site ‘is an ancient sanctuary and shrine…[which] has considerable artistic and archaeological interest, and is still used as a place of pilgrimage’ (at 15), did not pay any further attention to this aspect of the case.

(a)  Holy Places as Part of the Heritage of Mankind

32  Thus, holy places undoubtedly belong to the cultural and spiritual heritage of mankind and therefore enjoy that protection which international law provides for cultural property, especially in times of war and civil strife (Cultural Property, Protection in Armed Conflict). This has been expressed in Art. 16 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) (Geneva Convention Additional Protocol II [1977]: Without prejudice to the provisions of The Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of [1954], it is prohibited to commit any acts of hostility directed against historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples, and to use them in support of the military effort. More general protection is provided by the UNESCO Convention on the Means of Prohibiting and Preventing Illicit Import, Export and Transfer of Ownership of Cultural Property of 1970 (Cultural Property) and by the Convention for the Protection of the World Cultural and Natural Heritage of 1972 (World Natural Heritage). They seek to ensure the protection of cultural heritage of outstanding value through international co-operation and make the qualification of cultural property a part of the world’s heritage independent of the State in which it is situated.

33  The question whether the obligation of a State to protect sacred sites is an international one which overrides national interests of economic development has recently come up in connection with the intensive touristic use of the ancient Cambodian temple city of Angkor. The correct solution will have to be based on a weighing of the justified interests concerned.

(b)  Right of Access to, and/or Religious Use of, Holy Places as Part of Human Rights

34  The right of a State’s own nationals to access to, and/or religious use of, their holy places is a matter of free exercise of religion and thus of human rights. By this, it acquires an international aspect, because human rights questions are no longer exclusively domestic matters (Religion or Belief, Freedom of, International Protection). The right of foreign nationals or stateless persons to access to holy places also forms part of the question as to whether a State has an obligation under international law to admit aliens into its territory.

(i)  Part of Free Exercise of Religion

(α)  Own Nationals

35  To date, there have only been a few cases which were dealt with by international courts. Thus, both the Inter-American Court of Human Rights (IACtHR) and the Inter-American Commission on Human Rights (IACommHR ) were seised with complaints by indigenous people in Nicaragua and Belize claiming that certain economic activities carried out or authorized by government infringed their property rights and various other rights in respect of their sacred sites guaranteed under the American Convention on Human Rights (1969) and the American Declaration of the Rights and Duties of Man (1948). The respective decisions of the IACtHR in The Case of the Mayagna (Sumo) Awas Tingni Community v Nicaragua and the IACommHR in Maya Indigenous Communities of the Toledo District v Belize were in favour of the claimants.

36  However, while generally recognized human rights have the character of ius cogens and thus set a standard to which States are subject independently of whether they are parties to any particular international instrument for the protection of human rights, jurisdiction of international human rights instances or the practical possibility to enforce their decisions domestically will often depend on it. Thus, indigenous people in the US, which is not a party to the American Convention on Human Rights, cannot avail themselves of the protection provided for therein.

(β)  Foreign Nationals

37  The obligation to admit aliens seems to be recognized at least in those cases where non-admission could be considered a violation of human rights. Since the International Covenant on Civil and Political Rights (1966) (‘ICCPR’) provides for everyone’s ‘freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, [and] practice’ (Art. 18 (1) ICCPR), and since ‘[f]reedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others’ (Art. 18 (3) ICCPR), access of foreign nationals or stateless persons to holy places should not be subject to any other limitations than those just mentioned. This right may be regulated by, but does not depend on, an international treaty or national legislation, because, as with all human rights, it is ‘inalienable’ and ‘derive[s] from the inherent dignity of the human person’ (1st and 2nd Recitals Preamble ICCPR).

(γ)  Limitations

38  Being a consequence of the freedom of religion and thus of a human right, the exercise of the right of access to, and of the use of, sacred places cannot be forfeited by its occasional abuse even if this abuse threatens public security and order, although interference by the public authority may be justified in order to bring such abuse to an end. On this ground, the Indian government ordered its troops to attack the Golden Temple of Amritsar, the most important holy place of Sikhism, in 1984. Moreover, no State may unduly limit the use of sacred places as a matter of public policy (Ordre public [Public Policy]), because the core of freedom of religion must remain untouched and is, like all human rights, not at the disposal of the legal order of any particular State.

(ii)  Free Access an Obligation erga omnes

39  While the ICJ, in its Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, referred only in a general manner to certain of Israel’s obligations under international humanitarian law as being obligations erga omnes without specifically mentioning the right of access to the holy places, the fact that there exists an ‘obligation of States under the Charter of the United Nations to promote universal respect for, and observance of, human rights and freedoms’ (4th Recital to the Preamble of the Charter of the United Nations; United Nations Charter) indicates that the obligation to grant access to holy places in general is an obligation erga omnes incumbent on any State that is the territorial sovereign of a sacred site. This follows from an argument a minori ad maius, given the fact that international humanitarian law (Humanitarian Law, International) is only a special sector of applied human rights. Moreover, interventions for the protection of religious—then Christian—interests were the most original form of humanitarian intervention and as such recognized even in the 19th century.

(c)  Denial of Access to Non-Members of a Particular Religion

40  Occasionally, non-members of a particular religion have been denied access to certain holy places. The most prominent example is Mecca, where not only the Kaaba and other sacred sites but the entire city has been closed to non-Muslims since early Islamic times. The same applies to the city of Medina with Muhammad’s Tomb inside ‘The Mosque of The Prophet’. Exclusion of non-Muslims from these cities forms part of the law of—and is enforced by—Saudi Arabia. The third Islamic spiritual centre, Kairouan in Tunisia, was opened to non-Muslims in 1881.

41  Since holy places belong to the common cultural and spiritual heritage of mankind, the question can be raised as to whether denial of access to persons of different or no belief is compatible with the very idea of a common heritage. Again, the correct solution can only be found by weighing the various interests involved; and while visits of such persons must not interfere with the religious use of sacred sites and must be carried out in a respectful manner, it is not to be unduly restricted where no interference or disrespectful behaviour may reasonably be expected. Here again, no State may rely on public policy as a justification for not granting such access, because any public policy finds its limits in international human rights standards.

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