Scholarly Articles and Other Contributions
 

Document Type

Article

Publication Date

1998

Abstract

This Article asks whether international human rights law obliges states to admit foreign pilgrims, and if so, whether the existence of such an obligation should influence interpretation of the Fundamental Agreement. Part I of this Article takes up a logically prior question: whether the Fundamental Agreement is a legally binding treaty, and whether it should be interpreted in accordance with treaty law. The Article rejects recent suggestions that one or both parties lack the capacity to make treaties, and it concludes that the Agreement is a binding treaty that should be interpreted in accordance with the Vienna Convention on the Law of Treaties. Part II suggests that human rights instruments have been surprisingly slow to recognize a right of international pilgrimage. There is some state practice that might reflect the existence of a right of international pilgrimage and a correlative duty to accept foreign pilgrims, but it is not clear that this practice arises out of a sense of legal obligation. This Part concludes that there is at most an emerging customary law right of pilgrimage, and that this right would be subject to reasonable restrictions relating to health, safety, and security, as well as restrictions designed to protect holy places themselves. Because the background law on pilgrimage is not well settled, that law should not directly affect interpretation of the Fundamental Agreement. Finally, Part III of this Article observes that human rights law does not prevent states from undertaking an obligation to admit pilgrims. If pilgrimage continues to grow, states someday may have to establish rules and quotas regulating the flow of pilgrimage, similar to those established by Saudi Arabia to regulate the Muslim Hajj. Ironically, the regulation of pilgrimage itself may spur recognition of pilgrimage as a human right.

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