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Van der Vyver assists nations caught in law and religion battles
By April L. Bogle | Emory Law | May 23, 2016 2:05:00 PM

CSLR Senior Fellow Johan D. van der Vyver is traveling to countries in the midst of constitutional and church-state strife – Nepal, India, Chile, and China -- to advise them on solutions tried by other nations. It’s a role he’s been playing since he helped bring an end to apartheid in his native South Africa nearly two decades ago.

This global work contributed to the decision of the National Research Foundation of South Africa to award Van der Vyver in early December a grading of “A” -- a prestigious honor bestowed on less than five law professors in South Africa – for his achievements of the past eight years and his international academic esteem. Van der Vyver serves as Emory Law’s I.T. Cohen Professor of International Law and Human Rights, and Extraordinary Professor in the Department of Private Law at the University of Pretoria in South Africa. A former professor of law at the University of the Witwatersrand in Johannesburg and former fellow in the Human Rights Program of The Carter Center, he has been teaching law for 53 years.

Three Constitutional Models

In Nepal, a Hindu nation where an outbreak of violence by Maoists in 1996 has resulted in nearly 150,000 deaths, Van der Vyver discussed how to resolve conflict among a wide range of ethnic groups that speak 91 different languages. He spoke at a conference on “The Emerging New Constitution in Nepal” and participated in group discussion with Nepal’s president.

Initially, Nepal was planning to divide the country into political territories that represented each ethnic group, an approach Van der Vyver advised against.

“Separating conflicting groups is a good Jewish philosophy – build a barrier, a wall between you and your enemies,” said Van der Vyver, Emory Law’s I.T. Cohen Professor of International Law and Human Rights. “If you give political rights to people already in conflict, it will only exacerbate the conflict.”

In a direct opposite approach, which Nigeria has tried, the government attempts to create homogeneity by encouraging marriages between members of different political and religious groups. It’s another model he doesn’t endorse.

“Nigeria is now more divided than ever,” Van der Vyver said.

The third model, implemented with mixed results in South Africa, encourages group identities to create what Desmond Tutu called “a rainbow nation” where people take pride in their group’s identities and respect each other’s differences.

“A person can be proud of being Dutch Reformed or Afrikaans, etc., as long as there is zero tolerance for words or actions that could be offensive to others,” Van der Vyver explained.

The law has teeth – there’s an “equality court” that enables people to bring charges against others who have used offensive language. But it’s a difficult approach for Americans to accept because it limits freedom of speech.

“Americans don’t understand it because free speech is the Holy Cow in the United States,” he said.

Although Nepal is considering the South African model, Van der Vyver says constitutions are “not very exportable commodities.”

“Eastern European countries were too keen to follow America’s  perception of freedom of religion, and it’s been a total failure because their cultures are very different. A country’s constitution needs to be based instead on the needs of that country,” he said. “If Eastern European countries kept following the model of free speech, they would keep hating each other for years.”

Sphere of Sovereignty

In Santiago, Chile, and Delhi, India, Van der Vyver shared how the sovereignty of religious institutions in a secular state ideally should function. He drew upon two decisions by the European Court of Human Rights (ECHR) regarding German cases that appeared to be similar but were handed different verdicts. In both cases (Obst v. Allemagne and Schüth v. Allenagne), a person employed by the church was fired for marital infidelity, a violation of church law. ECHR upheld the secular court’s decision in Obst but overturned it in Schüth.

Van der Vyver explained that the ECHR does not have jurisdiction over the churches as such, but as a member state of the Council of Europe, Germany must protect the rights embodied in the European Convention of Human Rights from infringements by the state as well as non-state institutions. 

“The question before the ECHR was merely whether the labor courts adequately considered the impact of the dismissal of the church employees on their private and family life —a right protected by the European Convention. In Obst, the labor court did that; in Schüth it did not. The ECHR will not second guess the conclusion arrived at by the labor courts but will only inquire whether Germany has considered the impact of a dismissal on the rights and freedoms of the church employees and has offered adequate protection of those rights,” Van der Vyver said.  

“Subjecting the internal affairs of religious institutions to the norms embodied in the European Convention is nevertheless unfortunate,” he said. “The mere fact that a church may be compelled to justify its internal legal provisions before a secular tribunal amounts to totalitarianism of the worst kind.”

The United States, he points out, “is battling to come to grips” with the internal sovereignty of churches.

“Even though there are conditions within the church that violate human rights norms, such as gender equality and sexual orientation, the state should not interfere with the internal affairs of the church. Churches will get there eventually. It will take them time,” Van der Vyver said.

Religiously Motivated Terrorism

At Bejing’s Peking University, Van der Vyver explained the current international debate about religiously motivated terrorism.

Prior to September 11, religiously based groups battling for liberation believed they were justified in using terrorism. After September 11, the United Nations General Assembly and Security Council decreed that terrorism was unjustified under any circumstances. Van der Vyver said there is “a movement afoot” to have the international community define terrorism once and for all.

“Are people in a war of liberation allowed to use terrorism? Can the state use terrorism? We need to reject terrorism and make no exceptions to the rule,” he said.

He shared a South African example of state-based terrorism during the apartheid era: police annually beat and tear gassed students at a liberal university as means to terrorize citizens into submission.

“Governments that lack legitimacy must still maintain law and order,” Van der Vyver explained. “But the population will resist the government, which will prompt the government to apply stricter law, which will lead to greater resistance. This escalation leads to brute force becoming the only means of law enforcement. Apartheid South Africa was rapidly heading toward such a situation.”

Johan D. van der Vyver’s bio and published writings