INTRODUCTION

A recent study published by Human Rights Watch in December 2014, graphically documented the abuse of self-identifying homosexuals in the Russian Federation.¹ The report examined a total of seventy-eight cases in sixteen urban centers that have occurred since 2012.² In addition to soft discrimination (e.g., employment termination and verbal harassment), the report described various harrowing and violent personal attacks: forced sodomy with a bottle in public, and the brutal tearing-out of a transgender woman’s toenails after being stripped and abandoned in a forest.³ These events often are video-recorded and subsequently posted across internet domains to ensure maximum humiliation.⁴ Furthermore, attacks that have resulted in permanent blindness, shootings,⁵ and the gruesome murder of two men who were tortured to death on separate occasions in 2013, have been attributed singularly to the victims’ homosexual orientation.⁶

While the legal persecution and statutory prosecution of homosexuals on the numerous iterations of Russian territory is not novel,⁷ the rapid and unprecedented increase in vigilante activities against them in the previous two years alone is imputed wholly to the passing of a landmark bill on June 29, 2013.⁸ An almost universal consensus of opinion assigns responsibility for the present and pervasive vitriol to this one particular law.⁹ Allegedly written to protect minors against homosexual propaganda,¹⁰ the Russian State Duma authored¹¹ and President Vladimir Putin perforce signed Federal Law № 135-FZ (the “New Law”),¹² a brief amendment to the original federal law—On the Protection of Children from Information Detrimental to Their Health and Development.¹³ The New Law established penalties for those convicted of disseminating certain proscribed information to minors¹⁴ pursuant to the promotion of homosexuality.¹⁵ Stark evidence for the direct correlation between the enactment of the New Law and the consequent outbreak of abuse is likewise illustrated by the fact that Russia decriminalized homosexuality in 1993.¹⁶ To wit, a markedly noticeable increase in the number of attacks began only in 2013, when the New Law was enacted.¹⁷

Current scholarship positions the controversy over the New Law squarely in the arena of human rights. The New Law is seen as a restriction on the fundamental exercise of free speech, and more importantly as a surreptitious vehicle for state discrimination against practicing homosexuals.¹⁸ Recognized legal experts argue effectively that the New Law is a direct violation of the Russian Federation’s obligations under various international conventions—the most significant being the European Convention on Human Rights, which Russia ratified in 1998.¹⁹

Conversely, other experts have cast a wider proverbial net, and have argued persuasively that human rights in Russia, including therefore the New Law and the Russian Federation’s attendant international commitments under various international conventions, must be understood in a much broader context (i.e., cultural exceptions). The present Note reviews a recently published article espousing the wellreasoned belief that the New Law must be governed by the European Convention on Human Rights,²⁰ and surveys three contextual arguments: national identity,²¹ national sovereignty,²² and by analogy—national autonomy.²³ The Note ultimately posits a new approach—a cultural exception not yet thoroughly investigated or advanced, and which therefore, touches immediately upon the validity of the New Law: Russian customary/indigenous law is a human right protected under (1) the International Covenant of Economic, Social and Cultural Rights;²⁴ (2) the International Covenant on Civil and Political Rights;²⁵ and (3) the United Nations Declaration on the Rights of Indigenous Peoples.²⁶

While each of the three contextual arguments may advocate indirectly for the appreciation of customary law as it applies positively to human rights in Russia,²⁷ none attempt to link traditional indigenous rights with modern human rights via a relevant international agreement. The present Note attempts to do so—with trepidation and humility as the topic is innately sensitive. The intent is to explore whether the New Law is valid precisely because it is protected as a compelling expression of “cultural free speech” and/or an authentic product of indigenous Russian law. There is no intent to justify, excuse or in any way condone the prejudiced malcontents, whether private or public,²⁸ who have perpetrated the horrendous accusations and crimes against homosexuals in Russia that the New Law seems to have so vigorously engendered.

This Note is divided into four sections: section one—The Origins of the New Law; section two—The Exclusivity Argument: The New Law Violates the European Convention on Human Rights; section three—The Contextual Argument: The New Law as Cultural Exception to the European Convention on Human Rights; and section four—The New Law as Russian Customary Law Under International Agreements.

1 HUMAN RIGHTS WATCH, LICENSE TO HARM (2014), https://www.hrw.org/report/2014/12/15/license-harm/violence-and-harassment-against-lgbt-people-and-activists-russia [hereinafter LICENSE].
2 Alexey Eremenko, Violence Against LGBTs Getting Worse in Russia, Study Says, MOSCOW TIMES (Dec. 15 2014), http://www.themoscowtimes.com/news/article/violenceagainst-lgbts-getting-worse-in-russia-study-says/513341.html.
3 Id.
4 Russia: Impunity for Anti-LGBT Violence, HUMAN RIGHTS WATCH (Dec. 15, 2014), http://www.hrw.org/news/2014/12/15/russia-impunity-anti-lgbt-violence.
5 HUMAN RIGHTS CAMPAIGN FOUND., RUSSIA: YEAR IN REVIEW REPORT 6–7 (2015).
6 Steve Gutterman, Gay Man Killed in Russia’s Second Suspected Hate Crime in Weeks, REUTERS (June 3, 2013), http://www.reuters.com/article/us-russia-killing-gayidUSBRE95209Z20130603.
7 See Ben De Jong, “An Intolerable Kind of Moral Degeneration”: Homosexuality in the Soviet Union, 8 REV. SOCIALIST L. 341, 341–42, 344–45 (1982).
8 Gabrielle Tétrault-Farber, Russia’s ‘Gay Propaganda’ Law One Year On, MOSCOW TIMES (June 29, 2014), http://www.themoscowtimes.com/news/article/russias-gaypropaganda-law-one-year-on/502697.html.
9 Keith Perry, More than 200 Leading Authors Protest Against Russia’s Anti-Gay and Blasphemy Laws, TELEGRAPH (Feb. 6, 2014), http://www.telegraph.co.uk/news/worldnews/europe/russia/10620893/More-than-200-leading-authors-protest-againstRussias-anti-gay-and-blasphemy-laws.html.
10 Maria Issaeva & Maria Kiskachi, Immoral Truth vs. Untruthful Morals? Attempts to Render Rights and Freedoms Conditional upon Sexual Orientation in Light of Russia’s International Obligations, 2 RUSS. L.J. 81, 89 (2014). Homosexual propaganda is not defined under Russian law, and is otherwise legislatively ambiguous; however a thorough analysis of the relevant case law establishes perhaps a few parameters that make the definition somewhat more transparent.
Per the Constitutional Court of Russia, homosexual propaganda is “an activity of ‘purposeful and uncontrolled dissemination of information, detrimental to health [and] moral . . . development forming a distorted image of the social equality of traditional and non-traditional relationships.’” Further, the traditional relationships of “family, motherhood and childhood . . . are those values which ensure continuous change of generations and . . . development of the whole multinational people of the Russian Federation.” Id.; Russia’s Anti-gay ‘Propaganda Law’ Assault on Freedom of Expression, AMNESTY INT’L (Jan. 25, 2013), https:/www.amnesty.org/en/latest/news/2013/01/russia-anti-gay-propagandalaw-assault-on-freedom-expression/. Per the Supreme Court of Russia, homosexual propaganda is “an activity of natural or legal persons consisting in the dissemination of information, aimed at forming in the consciousness certain attitudes and stereotypes, or encouraging persons to whom it is addressed to commit something or refrain from it.” That is, homosexual and propaganda have “well-known meanings”; and homosexual propaganda occurs when (1) “[it] denies traditional family values,” and (2) “a child cannot critically assess incoming information and that his or her own interest in non-traditional relationships can easily be incited despite the fact that such interest is not ‘objectively based’ on the physiological characteristic of the child.” Issaeva & Kiskachi, supra, at 90.
Further, the Russian executive agency tasked with enforcing the New Law, Roskomnadzor, has enumerated its own criteria for identifying homosexual propaganda: “[information] arguing that traditional families do not meet the needs of modern society or the ‘modern individual’ . . . websites that publish ‘out-of-context’ statistics about children adopted by gay and straight couples . . . using ‘attractive’ or ‘repelling’ images to discredit traditional [families] and propagate alternative family models . . . or publishing lists of famous living or deceased gay individuals.” Id. at 94–95. Perhaps the best definition, however, is provided in the official commentary or explanatory note to the New Law: “The promotion of homosexuality has sharply increased in modern-day Russia. This promotion is carried out via the media as well as via the active pursuit of public activities which try to portray homosexuality as a normal behaviour. This is particularly dangerous for children and young people who are not able to take a critical approach to this avalanche of information with which they are bombarded on a daily basis. In view of this, it is essential first and foremost, to protect the younger generation from exposure to the promotion of homosexuality . . . . It is therefore essential to put in place measures which provide for the intellectual, moral and mental well-being of children, including a ban on any activities aimed at popularising homosexuality. A ban of this kind of propaganda as an activity involving the intentional and indiscriminate spreading of information which may be injurious to physical, moral and spiritual wellbeing, including instilling distorted ideas that society places an equal value on traditional and non-traditional sexual relations amongst people who are incapable, due to their age, of critically assessing this information on their own, cannot in itself be considered a breach of the constitutional rights of citizens . . . . The bill confers the right of drawing up charge sheets relating to activities carried out in public which are aimed at promoting homosexuality to minors on officials of the authorities responsible for internal affairs (the police) and of considering any resulting cases – on the courts.” HUMAN DIGNITY TRUST, RUSSIA: THE ANTI-PROPAGANDA LAW 1 (2014).
11 See AMNESTY INT’L, supra note 10. The Russian State Duma voted almost unanimously to pass the New Law in its first reading – only one representative voted against and one abstained. Id.
12 HUMAN DIGNITY TRUST, supra note 10; Federal’nyĭ zakon ot O vnesenii izmeneniĭ v stat’i͡u 5 Federal’nogo zakona “O zashchite deteĭ ot informat͡sii, prichini͡ai͡ushcheĭ vred ikh zdorov’i͡u i razvitii͡u” i otdel’nye zakonodatel’nye akty rossiĭskoĭ federat͡siiv t͡seli͡akh zashchity deteĭ ot informat͡sii, propagandirui͡ushcheĭotrit͡sanie tradit͡sionnykh semeĭnykh t͡sennosteĭ” [Federal Law on Amending Article 5 of the Federal Law on Protecting Children from Information Causing Harm to Their Health and Development and Certain Legislative Acts of the Russian Federation for the Purposes of  Protecting Children from Information Conducive to the Negation of Traditional Family Values] June 2013, No. 135. The New Law’s most salient and contested alteration occurs in Article 3(2)(b), which states “[p]ropaganda of non-traditional sexual relations among minors, manifested in the distribution of information aimed at forming non-traditional sexual orientations, the attraction of non-traditional sexual relations, distorted conceptions of the social equality of traditional and non-traditional sexual relations among minors, or imposing information [about] non-traditional sexual relations [that] evoke interest in these kinds of relations if these actions are not punishable under criminal law[, subject citizens] to administrative fines . . . in the amount of 4,000–5,000 rubles; for administrative officials, 40,000–50,000 rubles; for legal entities, 800,000–1,000,000 rubles or suspension of business activities for up to 90 days.” Russia’s “Gay Propaganda” Law: Russian Federal Law #135-FZ, THE SCHOOL OF RUSS. AND ASIAN STUDIES (Aug. 21, 2013), http://www.sras.org/russia_gay_ propaganda_law.
The approximate USD value of the fines is difficult to determine due to the Russian currency’s recent severe fluctuations. However, rounding to an average of 60 rubles per 1 USD at today’s rate, the fines total $67–$83 for citizens; $667–$830 for administrative officials; and $13,333–$16,667 for legal entities. See CENT. BANK OF RUSS. FED’N, http://www.cbr.ru/eng/ (last visited Mar. 25, 2016).
13 Federal’nyĭ zakon ot (red. Ot 14.10.2014) O zashchite deteĭ ot informat͡sii, prichini͡ai͡ushcheĭ vred ikh zdorov’i͡u i razvitii͡u [Federal Law on the Protection of Children Against Information that may Be Harmful to Their Health and Development (with Amendments and Additions)] Dec. 2010, No. 436; see also Russia: Use Leadership to Repeal Discriminatory Propaganda Law, HUMAN RIGHTS WATCH (Sept. 5, 2013), https://www.hrw.org/news/2013/09/05/russia-use-leadership-repeal-discriminatorypropaganda-law [hereinafter Russia: Use Leadership to Repeal Discriminatory Propaganda Law].
14 See Russia: Use Leadership to Repeal Discriminatory Propaganda Law, supra note 13. Minors in Russia are defined generally as citizens under the age of eighteen, though there are exceptions. Russia (née Soviet Union) ratified the International Convention of the Rights of the Child (the “CRC”) in 1990; however, “[d]ifferent pieces of Russian legislation do not follow the definition of children provided by the CRC uniformly. Despite the fact that article 1 of the CRC states that everyone under eighteen years of age is recognized as a child, most specialized health care programs in Russia do not include children older than fourteen, or older than sixteen, if a child is disabled. Parental consent for medical procedures is required for children under sixteen, and tax legislation treats minors under sixteen, and between sixteen and eighteen years of age differently.” Children’s Rights: Russian
Federation, LIBRARY OF CONGRESS, http://www.loc.gov/law/help/child-rights/russia.php (last visited Mar. 25, 2016); Convention on the Rights of the Child, U.N. TREATY COLLECTION, https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-11&chapter=4&
lang=en. (last visited Mar. 25, 2016); GRAND VALLEY STATE UNIV. HUMAN RESEARCH REVIEW COMM., G-9: HRRC GUIDANCE ON AGE OF MAJORITY/ADULTHOOD IN USA & OTHER COUNTRIES 3 (2012), https://www.gvsu.edu/cms3/assets/E122C984-F34A-F437-8340DB5CD900C177/procedures/g-9._guidance_on_age_of_majority_in_us_and_foreign_countries._ 0725.2012.pdf.
15 See Russia: Use Leadership to Repeal Discriminatory Propaganda Law, supra note 13. The limits of the New Law are still being tested. For example, in February 2014, a district court in central Russia found a woman not guilty of breaching the New Law for creating a social media site/forum on Facebook to assist teenagers struggling with homosexuality. The case has been appealed. Russian Journalist Accused of Anti-Gay ‘Propaganda’ Defeats Charges, AMNESTY INT’L UK (Jan. 29, 2016), https://www.amnesty.org.uk/russia-journalistelena-klimova-lgbt-gay-propaganda; Tom Balmforth, Children-404: LGBT Support Group in Kremlin’s Crosshairs, RADIO FREE EUR./RADIO LIBERTY (Nov. 21, 2014), http://www.rferl.org/content/russia-lgbt-children-404-propaganda/26703500.html. Further, sympathetic heterosexuals who encourage the non-discrimination of homosexuals may be liable under the New Law: “Ekaterina Bogach, a Spanish language teacher from St. Petersburg, was targeted by a homophobic group for her support of LGBT rights. Media reports said that in November 2013, the group began an online campaign harassing Bogach and claiming that her involvement with the Alliance of Heterosexual People for LGBT Equality was harmful to her students. They also sent a letter to the city committee on education calling Bogach a ‘supporter of perverts’ and harmful to her students’ ‘psyche,’ the media reports said. Despite the harassment campaign against her, Bogach kept her job.” Russia: Anti-LGBT Law a Tool for Discrimination: An Anniversary Assessment, HUMAN RIGHTS WATCH (June 29, 2014), http://www.hrw.org/news/2014/06/29/russia-antilgbt-law-tool-discrimination.
16 Matthew Schaaf, Advocating for Equality: A Brief History of LGBT Rights in Russia, HARRIMAN MAG., Feb. 10, 2014, at 23–24. Homosexuality was initially decriminalized in the Soviet Union immediately succeeding the Russian Revolution in 1917, but recriminalized again in 1933. Jong, supra note 7, at 342.
17 See LICENSE, supra note 1.
18 Russian Constitutional Court Rules on Anti-Gay Law, HUMAN RIGHTS FIRST (Sept. 26, 2014), http://www.humanrightsfirst.org/press-release/russian-constitutional-court-rulesanti-gay-law.
19 Issaeva & Kiskachi, supra note 10, at 96–101; Frédéric Pinard, Council of Europe: Russia Ratifies European Convention on Human Rights, IRIS MERLIN, http://merlin.obs.coe.int/iris/1998/6/article6.en.html (last visited Mar. 25, 2016).
20 See Issaeva & Kiskachi, supra note 10, at 83.
21 See Petr Preclik, Culture Re-introduced: Contestation of Human Rights in Contemporary Russia, 37 REV. CENT. AND EAST EUR. L. 173, 173 (2012).
22 Mikhail Antonov, Conservatism in Russia and Sovereignty in Human Rights, 39 REV. CENT. & EAST EUR. L. 1, 2 (2014).
23 See Merilin Kiviorg, Collective Religious Autonomy Versus Individual Rights: A Challenge for the ECtHR?, 39 REV. CENT. AND EAST EUR. L. 315, 315 (2014).
24 See International Covenant on Economic, Social and Cultural Rights arts. 1, 5, adopted Dec. 16, 1966, 993 U.N.T.S. 3 [hereinafter ICESCR].
25 See International Covenant on Civil and Political Rights arts. 1, 5, adopted Dec. 19, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR].
26 See G.A. Res. 61/295, United Nations Declaration on the Rights of Indigenous People, at 1 (Oct. 2, 2007) [hereinafter UNDRIP].
27 Preclik, supra note 21; Antonov, supra note 22; Kiviorg, supra note 23.
28 While the majority of attacks are from non-state actors, semi-official acquiescence is tolerated due to deliberate inaction. See Susannah Cullinane, Human Rights Watch Criticizes Russia, Says It Fails to Protect LGBT People, CNN (Dec. 15, 2014), http://www.cnn.com/2014/12/15/world/europe/russia-hrw-gay-report/(“The police officer who took his complaint said to him, ‘It’s all right, you’re gay so it’s normal that you were attacked. Why would you need to file a complaint against anyone?’”); see also David M. Herszenhorn, Gays in Russia Find No Haven, Despite Support from the West, N.Y. TIMES (Aug. 11, 2013), http://www.nytimes.com/2013/08/12/world/europe/gays-in-russia-find-no-haven-despitesupport-from-the-west.html?_r=0 (“Few gay people in Russia openly acknowledge their sexual orientation, and those who do are often harassed. When some gay people protested the propaganda law by kissing outside the State Duma, the lower house of Parliament, police officers stood by and watched as the demonstrators were doused with water and beaten by antigay and religious supporters of the bill.”); see also Kseniya A. Kirichenko, Study on Homophobia, Transphobia and Discrimination on Grounds of Sexual Orientation and Gender Identity Legal Report: Russian Federation, DANISH INST. FOR HUMAN RIGHTS 70 (2009), http://www.coe.int/t/Commissioner/Source/LGBT/RussiaLegal_E.pdf (Tambov Governor Oleg Belin made an aggressively offensive pre-New Law statement in 2008: “Faggots must be torn apart and their pieces should be thrown in the wind!”).

† J.D. 2016, Regent University School of Law.

INTRODUCTION

In 1910, Ernest Bell released a treatise entitled Fighting the Traffic in Young Girls or, War on the White Slave Trade, described as “a complete and detailed account of the shameless traffic in young girls.”¹ The contributors to this work included U.S. Attorneys, educators, pastors, and professors at medical schools.² Although written over a century ago, the introduction written by Edwin W. Sims, a United States District Attorney from Chicago, aptly describes human trafficking today:

In the past fifteen years, as a result of media initiatives,⁴ congressional hearings and public awareness initiatives by NGOs such as the Polaris Project,⁵ the Protection Project,⁶ and Free the Slaves,⁷ there is a growing public awareness that commerce in human beings is not merely a historical institution from our past.⁸ In fact, it haunts our present and demands the public’s attention. Trafficking in human beings continues to be a global enterprise generating billions of dollars of revenues and affecting over 600,000 people each year.⁹ Some analysts have suggested that trafficking in humans is close behind the gun and drug trade as a criminal enterprise because of its profitability.¹⁰ Although sexual trafficking of women and children has garnered the lion’s share of the public attention focused on this issue,¹¹ other sectors of the economy host trafficked and exploited workers. Victims of trafficking are exploited not only as prostitutes but also as agricultural laborers, sweatshop workers and domestic workers.¹² Moreover, there is a segment of the population whose dire circumstances cause them to fall victim to trafficking for the removal of human organs.¹³

Nongovernmental organizations have been aware of the problem of trafficking and have been actively engaged in advocacy on behalf of victims of trafficking for over a decade. Starting with the policy initiatives of the Clinton administration,¹⁴ these efforts have evolved into the anti-trafficking legislation enacted during the Clinton Administration and amended during the Bush Administration.¹⁵

The purpose of this Article is to examine the legislative response of the United States to human trafficking. Section I discusses the factors most frequently cited as contributing to the problem. Section II examines international authority for interdicting trafficking. Section III examines the United States’ response to the problem. It discusses the context in which the public awareness of the issue of trafficking has evolved and the culmination of this awareness in the enactment of federal legislation to address the problem. It also briefly examines the strategies mandated by the legislation on a national and international level and the ongoing role to be played by nongovernmental organizations in implementing this legislation by assisting with the identification of victims of severe forms of trafficking and the provision of services to them. Last but not least, Section IV of this Article looks at some of the accomplishments of the legislation to date and lessons to be learned from its successes and its limitations.

I. THE PROBLEM: AN OVERVIEW OF CONTRIBUTING FACTORS

A. Social, Economic and Political Factors

There are both shared and unique factors that characterize countries from which people are trafficked. As one analyst noted:

Over time, researchers have identified a number of factors that contribute to the power dynamic that facilitates and sustains the trafficking and subsequent enslavement of individuals. These are briefly described in a congressional hearing on the international trafficking of women and children and are set forth below.

1 ERNEST A. BELL ET AL., FIGHTING THE TRAFFIC IN YOUNG GIRLS OR, WAR ON THE WHITE SLAVE TRADE (General Books 2010) (1910).
2 Id. at 1–2.
3 Id. at 13.
4 See Bridget Leininger, CNN Freedom Project and Tony Maddox Honored by U.S.State Department as 2015 Trafficking in Persons Report Hero, CNN (July 27, 2015, 12:29 PM), http://cnnpressroom.blogs.cnn.com/2015/07/27/cnn-freedom-project-and-tony-maddox-honored-by-u-s-state-department-as-2015-trafficking-in-persons-report-hero/ (detailing how CNN’s Freedom Project was honored by the U.S. Department of State with the release of the 2015 Trafficking in Persons Report last year).
5 See, e.g., Human Trafficking, POLARIS, https://polarisproject.org/human-trafficking (last visited Feb. 18, 2016) (providing up to date information on federal and state trafficking legislation as well as current trafficking statistics).
6 See THE PROTECTION PROJECT, http://www.protectionproject.org/ (last visited Jan. 18, 2016).
7 See Slavery Facts and Our Impact, FREE THE SLAVES , http://www.freetheslaves.net/ (last visited Jan. 18, 2016).
8 See Kara C. Ryf, The First Modern Anti-Slavery Law: The Trafficking Victims Protection Act of 2000, 34 CASE W. RES. J. INT’L L. 45, 45 (2002) (“Although both slavery and involuntary servitude were outlawed in the United States in 1865, over one million people remain in forced prostitution, sweatshop labor, and domestic servitude throughout the United States. Most of these individuals are held captive, physically beaten, sexually abused, and psychologically intimidated. They are not paid for their services, nor are they free to leave. Few Americans are aware of the scope and severity of the human trafficking industry and the extent to which this phenomenon occurs within our own borders.”).
9 146 CONG. REC. 22,041, 22,043 (2000) (during the Senate debate on the Trafficking Victims Protection Act of 2000 (H.R. 3244), Senator Brownback stated: “Our government estimates that between 600,000 and 2 million women are trafficked each year beyond international borders. They are trafficked for the purpose of sexual prostitution by organized crime units and groups that are aggressively out making money off the trafficking of human flesh.”). FRANCIS T. MIKO, CONG. RESEARCH SERV., RL30545, TRAFFICKING IN WOMEN AND CHILDREN: THE U.S. AND INTERNATIONAL RESPONSE 1 (2004) (“According to the latest U.S. Government estimates, some 800,000 to 900,000 people are trafficked across borders each year worldwide for forced labor, domestic servitude, or sexual exploitation. Trafficking is considered one of the largest sources of profits for organized crime, generating seven to ten billion dollars annually according to United Nations estimates.”) (emphasis added).
10 International Trafficking in Women and Children: Hearings Before the Subcomm. on Near E. and S. Asian Affairs of the S. Comm. on Foreign Relations, 106th Cong. 11 (2000)(statement of Hon. Frank E. Loy, Under Sec’y of State, Global Affairs) [hereinafter International Trafficking in Women and Children Hearings](“Alarmingly, the trafficking industry is one of the fastest growing and most lucrative criminal enterprises in the world. Profits from the industry are enormous, generating billions of dollars annually to organized criminal groups. Trafficking in women and children is now considered the third largest source of profits for organized crime, behind only drugs and guns. Traffickers know that throughout the world they can reap large profits while facing a relatively low risk of prosecution. Moreover, it has been observed that, unlike drugs or firearms, trafficking ‘in women and children doesn’t require capital to start.’”).
11 Ryan Goehrung, Sex: Drowning Out the Discourse on Trafficking, HUMAN TRAFFICKING CTR. (Apr. 3, 2014), http://humantraffickingcenter.org/posts-by-htc-associates/sex-drowning-out-the-discourse-on-trafficking/ (“Despite the fact that sex trafficking cases account for less than one quarter of all human trafficking cases globally – 21.5 percent according to International Labour Organization estimates – the focus of the media and many anti-trafficking organizations seems to suggest sex trafficking is the most widespread kind of exploitation. As a result, similarly egregious and much more common labor trafficking cases receive little public attention and notably fewer resources.”).
12 International Trafficking in Women and Children Hearings, supra note 10 (“A trafficking scheme involves a continuum of recruitment, abduction, transport, harboring, transfer, sale or receipt of persons through various types of coercion, force, fraud or deception for the purpose of placing persons in situations of slavery or slavery-like conditions, servitude, forced labor or services. Examples include, but are not limited to sexual servitude, domestic servitude, bonded sweatshop labor or other debt bondage.”) (emphasis added). Bo Cooper, A New Approach to Protection and Law Enforcement Under the Victims of Trafficking and Violence Protection Act, 51 EMORY L.J. 1041, 1045–46 (2002) (“Persons are trafficked into the sex trade by force, fraud, or coercion to engage in prostitution, pornography, sex tourism, and other commercial sexual services. Others are required to perform forced labor as agricultural workers, domestic workers, maids in motels and hotels, and peddlers of trinkets on buses and in subways.”) (emphasis added). A MY O’NEILL RICHARD, CTR. FOR THE STUDY OF INTELLIGENCE, INTERNATIONAL TRAFFICKING IN WOMEN TO THE UNITED STATES: A CONTEMPORARY MANIFESTATION OF SLAVERY AND ORGANIZED CRIME 3 (1999) (“A review of several illustrative trafficking and slavery operations –involving sweatshop, agricultural, and other forms of labor – over the last eight years shows that these operations went unnoticed or were able to exist longer than trafficking operations involving the sex industry.”) (emphasis added).
13 Trafficking in human organs is distinguishable from trafficking for the removal of human organs. Typically in the latter case, individuals are either recruited with the pretext of a job or they are abducted. Once the individual reaches the location where the organ is to be removed, his compliance is forced with threats of violence which may extend to his family members. Once the organ is removed, the individual is minimally compensated and set loose with no provisions for aftercare. ARTHUR CAPLAN ET AL., COUNCIL OF EUROPE/UNITED NATIONS, TRAFFICKING IN ORGANS, TISSUES AND CELLS AND TRAFFICKING FOR THE PURPOSE OF THE REMOVAL OF ORGANS 55–58 (2009) (emphasis added).
14 See MIKO, supra note 9, at 8.
15 See id. at 8–10. In the 114th Congress, 92 bills were introduced that related to the subject of Human Trafficking. See generally Human Trafficking, GOVTRACK , www.govtrack.us/congress/bills/subjects/human_trafficking/6210 (last visited Feb. 27, 2016).
16 KEVIN BALES, UNDERSTANDING GLOBAL SLAVERY : A READER 10 (2005).

† Associate Professor, Regent University School of Law. B.A. 1966, State University of New York at Albany; J.D. 1977, Columbus School of Law, Catholic University of America; LL.M. 1984, Georgetown University Law Center.

INTRODUCTION

Much is at stake in the developing conflicts between freedom of conscience and lesbian, gay, bisexual, and transgender (LGBT) policies in international human rights law. Conscience is the human faculty with which individuals seek moral truth.¹ Over centuries, as evil roused the conscience of previous generations, they recognized the existence of human rights, and called upon states to protect these rights. In the twentieth century, drafters of the international human rights framework cited our endowment with conscience and reason as evidence of our inherent human “dignity,” the basis for universal and inalienable human rights.²

Because the creators of the international human rights system had a high view of conscience, both as a faculty for discerning moral truth and evidence of human dignity, they identified it as a “core human right”; and they created the strongest level of legal protection for it.³ As conflicts between freedom of conscience, state interests, and other rights have arisen, legal interpreters have consistently upheld freedom of conscience. However, over the past decade, conflicts between freedom of conscience and new LGBT policies (particularly legislatively and court-created same-sex marriage and sexual orientation nondiscrimination mandates) have grown. These conflicts threaten the status of freedom of conscience, both as a core human right and as foundational to the human rights system.

I. ORIGINS OF HUMAN RIGHTS

A. Where Do International Human Rights Come From?

No matter what human rights you believe in, this is an important question. For what you believe about the source of human rights will largely determine which rights you consider to be universal and how you believe the human rights system should be sustained and strengthened.

Philosophers, theologians, and legal scholars from many different time periods, have recognized conscience as a source of our rights. From Socrates to Thomas Aquinas, men have sought to determine questions about rights in their conscience.⁴ The assertion that conscience is the human faculty for apprehending moral truth may seem obvious, but it was not until the seventeenth century that thinkers began to articulate the relationships between conscience, reason, and rights.

In 1625, Dutch legal scholar Hugo Grotius, the “Father of International Law,” identified “right reason” (the ability to discern right from wrong) as a uniquely human power.⁵ Grotius and many others of his time saw human conscience as evidence that God made individuals in His own image (Imago Dei).⁶ He also believed that the power to discern right from wrong necessitated certain rights.⁷ A century after Grotius, Swiss scholar Emmerich de Vattel articulated the role of states vis-à-vis each other. In his watershed book, The Law of Nations, he asserted that states have duties to protect each other’s citizens from injury.⁸ Taken together, Grotius’ view of our unique human nature and Vattel’s view of the state, created the basis for an international human rights system.⁹ Neither saw the state as the source of human rights but as trustee of the duty to protect rights.¹⁰ 

Conscience has also been the engine of human rights action. In 1789, William Wilberforce, the “Conscience of England,” showed his nation that African and West Indian slaves were no less human than their masters and possessed human rights in no less measure.¹¹ In his speech “On the Horrors of the Slave Trade,” he made this appeal:

Wilberforce’s Christian beliefs motivated him to action.¹³ But, in his appeal to the nation, he did not rely on shared religious beliefs. He called upon the conscience of all citizens to recognize the evil of the slave trade and do their part in ending it. Wilberforce knew the human rights of slaves hinged upon the ability of men to apprehend truth in their conscience.

Florence Nightingale revolutionized medical care in armed conflict after seeing soldiers die needlessly in the Crimean War in 1854.¹⁴ She wrote, “[e]very man stands upon his own conscience; everything is between himself and his God.”¹⁵ Conscience caused the earliest human rights activists to turn ideas into action to protect the vulnerable.

In the twentieth century, World War II and the Holocaust shocked the collective conscience of the world. The post-World War II generation vowed “never again” and created a system of international law to protect the human rights of every person. In 1947, the United Nations (UN) commissioned American First Lady Eleanor Roosevelt, Lebanese Christian leader Charles Malik, Chinese philosopher Peng Chun Chang, French diplomat René Cassin, and Canadian lawyer John Peters Humphrey to draft the Universal Declaration of Human Rights (UDHR).¹⁶ They came from different nations, cultures, and religions.¹⁷ Roosevelt was Protestant.¹⁸ Cassin was Jewish.¹⁹. Chang was a noted Confucian scholar.²⁰ Malik was Greek Orthodox.²¹ They could not agree on divinity, but all saw the need for a transcendent basis for human rights.

They found this in human dignity—Article 1 of the UDHR states: “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience . . . .”²² 

Like Grotius and Vattel, the drafters found that man’s endowed qualities of reason and conscience are evidence of our unique human dignity. This dignity requires all states to recognize the rights of all humans. The clear lesson of World War II was that an unchecked state could produce unimaginable evil and suffering and abhorrent violations of individual rights.²³ Therefore, the UDHR made clear that human dignity and endowed reason and conscience was the source of human rights, not the state.²⁴ To directly safeguard individual conscience, it created the strongest legal protection possible. The UDHR itself did not create rights—it merely recognized their existence.²⁵

1 See Conscience, BLACK’ S LAW DICTIONARY (10th ed. 2014).
2 See G.A. Res. 217 (III) A, Universal Declaration of Human Rights, art. 1 (Dec. 10, 1948) [hereinafter UDHR].
3 See International Covenant on Civil and Political Rights art. 4, opened for signature Dec. 16, 1966, S. Treaty Doc. No. 95-20, 999 U.N.T.S. 171 (entered into force Mar. 23, 1976) [hereinafter ICCPR]; Louis B. Sohn, The New International Law: Protection of the Rights of Individuals Rather Than States, 32 AM . U.L. REV . 1, 17–19 (1982)(explaining that while the ICCPR admits that states have the authority to derogate certain human rights in times of emergency, the ICCPR categorizes the right to conscience as an inalienable right that never can be lawfully derogated).
4 Robert P. Lawry, Ethics in the Shadow of the Law: The Political Obligation of a Citizen, 52 CASE W. RES. L. REV. 655, 718–19 (2002) (discussing the attempts of Socrates, Aquinas, Thoreau, Martin Luther King, Jr. et. al. to proffer an acceptable solution in instances when conscience and the duty to obey the law are in conflict).
5 1 HUGO GROTIUS, THE RIGHTS OF WAR AND PEACE 150–153 (Richard Tuck ed., Liberty Fund 2005) (1625), http://socserv2.socsci.mcmaster.ca/econ/ugcm/3ll3/grotius/Law2.pdf; Benjamin Strauman, Early Modern Sovereignty and Its Limits, 16 THEORETICAL INQUIRIES L. 423, 429–30 (2015) (noting that Cicero and Grotius similarly attribute right
reason to humans alone).
6 Janne Elisabeth Nijman, Grotius’ Imago Dei Anthropology: Grounding Ius Naturae et Gentium, in INTERNATIONAL LAW AND RELIGION (Martti Koskenniemi et al. eds.) (forthcoming) (manuscript at 2–3), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2665553.
7 See GROTIUS, supra note 5, at 1132 & n. 8.
8 EMER DE VATTEL, THE LAW OF NATIONS, 262–63 (Richard Whatmore & Béla Kapossy eds., Liberty Fund 2008) (1758), http://oll.libertyfund.org/titles/2246.
9 See Evan J. Criddle, Standing for Human Rights Abroad, 100 CORNELL L. REV. 269, 299–332 (2015).
10 See id. at 308, 313, 332 (noting that the “fiduciary theory” based on the work of Vattel and Grotius provides for an international law system where human rights are vested “exclusively in human beings,” not the state).
11 See William Wilberforce, On the Horrors of the Slave Trade, Speech in the House of Commons (May 12, 1789), in 4 THE WORLD’S FAMOUS ORATIONS 60, 68 (William Jennings Bryan & Francis W. Halsey eds., 1906) (arguing against the inhumanity of the slave trade
that caused the “effusion of human blood,” set “fellow creatures a-hunting each other for slaves,” and filled fairs and markets with “human flesh”).
12 Id. at 69–70 (emphasis added).
13 Michael V. Hernandez, A Flawed Foundation: Christianity’s Loss of Preeminent Influence on American Law, 56 RUTGERS L. REV. 625, 681 n. 348 (2004).
14 See Tsvetelina Gerova-Wilson, Nursing Is Not a Lesser Included Profession: Why Physicians Should Not Be Allowed to Establish the Nursing Standard of Care, 16 QUINNIPIAC HEALTH L.J. 43, 45 n. 12 (2012–2013) (describing the impact of Nightingale’s reforms on the practice of nursing and treating those wounded in war).
15 Letter from Florence Nightingale (Feb. 17, 1848), in 7 FLORENCE NIGHTINGALE’S EUROPEAN TRAVELS 264, 265 (Lynn McDonald ed., 2004) (ebook) (writing these words in reflecting upon Michelangelo’s painting, The Last Judgment, and perhaps revealing the associations she made between conscience, duty, rights, and religion).
16 See History of the Document, UNITED NATIONS, http://www.un.org/en/sections/universal-declaration/history-document/ (last visited Feb. 2, 2016).
17 See id.
18 Mary Ann Glendon, God and Mrs. Roosevelt, FIRST THINGS (May 2010), http://www.firstthings.com/article/2010/05/god-and-mrs-roosevelt.
19 JAY WINTER & ANTOINE PROST, RENÉ CASSIN AND HUMAN RIGHTS: FROM THE GREAT WAR TO THE UNIVERSAL DECLARATION 318 (2013).
20 Mary Ann Glendon, Foundations of Human Rights: The Unfinished Business, 44 AM. J. JURIS. 1, 1 (1999).
21 Drafting of the Universal Declaration of Human Rights, UNITED NATIONS,
http://research.un.org/en/undhr/draftingcommittee (last visited Feb. 2, 2016).
22 UDHR, supra note 2, art. 1 (emphasis added).
23 See Karina Michael Waller, Intrastate Ethnic Conflicts and International Law: How the Rise of Intrastate Ethnic Conflicts Has Rendered International Human Rights Laws Ineffective, Especially Regarding Sex-Based Crimes, 9 AM. U. J. GENDER SOCIAL SOC. POL’Y & L. 621, 622, 624–25 (2001); History of the Document, supra note 16.
24 See UDHR, supra note 2, pmbl., art. 1–2.
25 See id.

† Director, Center for Religious Liberty, Family Research Council, Washington,
D.C.; B.S. 2002, U.S. Naval Academy; J.D. 2010, Regent University School of Law; LL.M. 2011, Georgetown University Law Center.
†† L. Lin is a graduate of Harvard Law School who has defended freedom of thought, conscience and religion for clients of various faiths from around the world.

ABSTRACT

Muslim societies now have embraced, more or less, the ideas and institutions of constitutionalism. It may be said that the rule of law, public consent to the political authority, and basic citizens’ entitlements are among the main constituent elements of constitutionalism. Modern law holds a particular status among those elements. It is, inter alia, state-made and amoral, and functions as a unifying thread in the fabric of constitutionalism, which in turn regulates a nation (i.e., a pluralistic society). Muslims always have insisted that the law should comply with or at least not contradict Sharia. They have in fact conceived modern law as a form, which can and ought to be instantiated with the substance of Sharia. This substance (Sharia) is, however, supposed to be, inter alia, jurist-made and moral. Could such a substance accommodate the public consent orientation and the amoral nature of legal rules that regulate the public life of a pluralistic society, and secure the rights of its members? If the answer is in the negative, what could be the way out?

INTRODUCTION

It goes without saying that over the last one and a half centuries, modern ideas and institutions, and in particular, constitutionalism with its extended ramifications, have found their way into traditional Muslim societies in one way or another.¹ The adoption or implementation of constitutional ideas and institutions in those societies, however, has not been an easy task; and the process has not yet reached its culmination point.² It is difficult to locate a Muslim society that can genuinely assert that it has managed to establish and develop, in a proper sense, constitutional concepts and institutions such as the rule of law, individual liberty and democracy.³

Constitutionalism, as an ideal, which soon will be explored in more detail, has suffered various setbacks in Muslim polities. The setbacks may be classified into two main categories of theoretical and practical, as they may also be divided into political, cultural, social and economic.⁴ This Article concentrates on one of the theoretical or cultural hindrances to the adoption of constitutionalism by Muslim societies. That is to say, Muslims seem to have misconceived one of the most significant elements (if not the most important element) of modern life, namely the “law.” Hence, they have apparently been unable or unwilling to bring about and benefit from a rather legitimate and functioning political system on the basis of the rule of law.⁵ In consequence, they have deprived themselves of a healthy economic, social and cultural environment that is usually based, inter alia, on a robust legal system.⁶

In what follows, first, this Article briefly explains the main pillars of constitutionalism. Second, the characteristic features of the law as a unifying element of these pillars are examined. Third, the concept of Sharia is explored. Fourth, and in the light of the discussions in the previous two sections, the conundrum with which Muslims have been confronted in the age of constitutionalism is illustrated. Finally, this Article concludes by making a few remarks on the likely ways out of the problem.

I. CONSTITUTIONALISM

Constitutionalism is indeed a broad title for various values and institutions that are supposed to limit the powers of the government.⁷ It may be said, however, that the basic and original value is that of limiting the government to law.⁸ Even those constraining values that are really complementary to the law, such as the public consent to the political authority and the basic entitlements of the people, ought to be eventually actualized by the law otherwise they merely remain at a rhetorical level with no practical impact.⁹ It should be added that the limitation imposed by law defines both the range of powers and legitimacy of the government.¹⁰ On the other hand, putting aside the possibility that governments can limit themselves willingly, the idea of constitution has been put forward in order to entrench the said constraints in such a way that power-holders may not readily remove them.¹¹

Accordingly, the first pillar of constitutionalism is the idea and institution of the rule of law.¹² The core idea of the rule of law refers to the substitution of the rule of man by the rule of law.¹³ That is to say, the rule of law has been constantly believed to be, and is indeed, among other things, the best way of countering the problem of the arbitrary rule of a man or a group of men over other members of a society, due to which most of the misfortunes of social life arise.¹⁴

The second pillar of constitutionalism is the system of separation of powers.¹⁵ The necessities of an efficient management of public affairs, and also the idea of the imposition of limits on this management have led to a division of labor among the holders of public powers—a mechanism that was later called the separation of powers of the government (i.e., the separation of the legislature, the judiciary and the executive).¹⁶ Also, in order for the division of powers and responsibilities not to undermine the rule of law, it is required to be a balanced separation.¹⁷ The government must be balanced in the sense that none of the three powers should hold so much power and discretion that outweighs the other two. Hence, any imbalance means one branch is able to interfere with and exert influence on another branch’s proper functioning, thus leading to an arbitrary method of governance.¹⁸

The third pillar of constitutionalism, public consent, took shape when endeavors were made to find an answer to the question raised against the wide range of powers and responsibilities held by the government at the early modern era.¹⁹ In other words, public governance reached a point in its history where the divine and natural models of, and justifications for, an extended and hugely powerful political and administrative authority were no longer considered to be a matter of fact.²⁰ There was indeed a strong demand for some kind of explanation and justification for that authority.²¹ A theory of public consent was first put forth by certain scholars like Thomas Hobbes,²² and then developed into a social contract framework by others such as Jean-Jacque Rousseau.²³ On this basis, only those governing arrangements and powers that had been consented to by the public were legitimate.²⁴

1 See Said Amir Arjomand, Introduction to CONSTITUTIONAL POLITICS IN THE MIDDLE EAST: WITH SPECIAL REFERENCE TO TURKEY, IRAQ, IRAN, AND AFGHANISTAN 1–3 (Said Amir Arjomand ed., 2008).
2 See id. at 1–10 (tracing the difficulties that the Islamic world has experienced in creating constitutional democracies).
3 See, e.g., id. at 5, 67–70.
4 See Mohammad Hashim Kamali, Constitutionalism in Islamic Countries: A Contemporary Perspective of Islamic Law, in CONSTITUTIONALISM IN ISLAMIC COUNTRIES: BETWEEN UPHEAVAL AND CONTINUITY 19, 19–32 (Rainer Grote & Tilmann J. Roder, eds., 2012); see also Ebrahim Afsah, Contested Universalities of Internal Law: Islam’s Struggle with Modernity, 10 J. HIST. INT’L L. 259, 268–69 (2008).
5 Hossein Esmaeili, The Nature and Development of Law in Islam and the Rule of Law Challenge in the Middle East and the Muslim World, 26 CONN. J. INT’L L. 329, 331 (2010).
6 See WILL KYMLICKA, MULTICULTURAL CITIZENSHIP: A LIBERAL THEORY OF MINORITY RIGHTS 26 (1995) [hereinafter MULTICULTURAL CITIZENSHIP]; Strobe Talbott, Forward to KENNETH, W. DAM, THE LAW-GROWTH NEXUS: THE RULE OF LAW AND ECONOMIC DEVELOPMENT, 14 (2006) (discussing the importance of institutions to creating a strong economy); Stephen Haggard & Lydia Tiede, The Rule of Law and Economic Growth: Where Are We?, 39 WORLD DEV. 673, 681 (2011); Will Kymlicka, The Rise and Fall of Multiculturalism? New Debates on Inclusion and Accommodation in Diverse Societies, 61 INT’L SOC. SCI. J. 97, 106–08 (2010) (explaining how instability causes fear and suppression of minorities, whereas when nations feel secure they are more likely to treat their minorities fairly).
7 See Larry Alexander, Introduction to CONSTITUTIONALISM: PHILOSOPHICAL FOUNDATIONS 2–3 (Larry Alexander ed., reprt. 1999) (1998) (discussing the concept of constitutionalism as meta-rules that are composed of agreed upon norms).
8 See N.W. BARBER, THE CONSTITUTIONAL STATE, 78 (2010); CHARLES HOWARD MCILWAIN, CONSTITUTIONALISM: ANCIENT AND MODERN 21 (rev. ed. 1947) (1940); BRIAN TAMANAHA, ON THE RULE OF LAW: HISTORY, POLITICS, THEORY 114 (2004).
9 See M.J.C. VILE, CONSTITUTIONALISM AND THE SEPARATION OF POWERS 1 (1967).
10 See Tom Ginsburg, Constitutionalism: East Asian Antecedents, 88 CHI.-KENT L. REV. 11, 12–13 (2010).
11 Larry Alexander, What are Constitutions, and What Should (and Can) They Do? 28 SOC. PHIL. & POL’Y 1, 3–4 (2011).
12 ALEXANDER, supra note 7, at 4–5.
13 Joseph Raz, The Rule of Law and Its Virtue,  93 L. Q. REV. 195, 196 (1977).
14 See id. at 202–03, 205.
15 VILE, supra note 9, at 1–2.
16 See id.; see also; ERIC BARENDT, AN INTRODUCTION TO CONSTITUTIONAL LAW 14–17 (1998); Torsten Persson et al., Separation of Powers and Accountability, 112 Q. J. ECON. 1163, 1164, 1166–68, 1198–99 (1997).
17 See EOIN CAROLAN, THE NEW SEPARATION OF POWERS: A THEORY FOR THE MODERN STATE 183–84 (2009); JAMES W. CEASER, In Defense of Separation of Powers, in SEPARATION OF POWERS: DOES IT STILL WORK? 168, 179–81, 186 (Robert A. Goldwin & Art Kaufman, eds., 1986); see also D. Brooks Smith, Promoting the Rule of Law and Respecting the Separation of Powers: The Legitimate Role of the American Judiciary Abroad, 7 AVE MARIA L. REV. 1, 18–19 (2008).
18 See VILE, supra note 9, at 2.
19 See Bruce P. Frohnen, A Problem of Power: The Impact of Modern Sovereignty on the Rule of Law in Comparative and Historical Perspective, 20 TRANSNAT’L L. & CONTEMP. PROBS. 599, 605–06 (2012).
20 MARTIN LOUGHLIN, THE IDEA OF PUBLIC LAW 13–14 (2003).
21 See id. at 13.
22 THOMAS HOBBES, LEVIATHAN 126, 133, 135 (Oxford Univ. Press 1909) (1651).
23 See Jean-Jacques Rousseau, The Social Contract and Discourses, in EVERYMAN’S LIBRARY: PHILOSOPHY AND THEOLOGY 14–15 (Ernest Rhys ed., G. D. H. Cole trans., J.M. Dent & Sons Ltd. 1923)(1913) (describing the contract that citizens voluntarily form with society).
24 See JOHN DUNN, Contractualism, in THE HISTORY OF POLITICAL THEORY AND OTHER ESSAYS 39, 52, 55–56 (1996); RUSSELL HARDIN, LIBERALISM, CONSTITUTIONALISM, AND DEMOCRACY 141, 146–47, 149 (1999).

† Professor of Public Law and Jurisprudence, Shahid-Beheshti University, Tehran (formerly National University of Iran). The first version of this Article was read during a seminar at the Institute of Ismaili Studies, London, on April 09, 2015. The author would like to express his gratitude to the Institute for giving him the opportunity to share certain ideas with the respectable audience. He deeply appreciates the excellent questions the audience at the seminar put forward, and also would like to thank Dr. Mahnaz Bayat, Faezeh Ameri, Fatemeh Bakhshizadeh and Shirin Boroumand for their valuable comments and assistance in the completion of this Article.

INTRODUCTION

The European Court of Human Rights made a difficult decision this year regarding fetal rights and the right of a state to protect life.¹ In the case of Parrillo v. Italy, an Italian woman challenged the right of the Italian government to prevent her from using her and her late partner’s in vitro fertilized embryos for scientific research.² Specifically, Ms. Parrillo, the appellant, claimed a “right to the peaceful enjoyment of her possessions”³ and the “right to respect for her private life” under the European Convention on Human Rights (the “ECHR”).⁴ She intended to donate her embryos, which were conceived through medical assistance, to research.⁵ However, sections 13 and 14 of Italian law no. 40 of February 19, 2004 (“Law no. 40/2004”) state that in vitro fertilization may be used to assist reproductive problems, which is the right of the individual, but research, cryopreservation and destruction of embryos is forbidden.⁶

The European Court of Human Rights (the “Court”) decided to accept the case because there is a potential incompatibility between Law no. 40/2004 and the ECHR that raises a question of constitutionality under Article 117 of the Italian Constitution.⁷ The Court reasoned that if Law no. 40/2004 violated the ECHR, it also would violate the Italian Constitution because “the international law obligations undertaken by Italy in signing and ratifying the European Convention on Human Rights include the duty to bring its own legislation into line with the provisions of the Convention in accordance with the meaning attributed to these by the . . . Court.”⁸ This was a case of first impression, where the Court needed to decide if there was a conflict between Law no. 40/2004 and the ECHR.⁹ The Court ruled that Law no. 40/2004 is not in conflict with the ECHR, and is therefore constitutional.¹⁰

In Parrillo, the Court moved away from allowing a parent to have complete control over the fate of an embryo.¹¹ The Court made it clear that Council of Europe member states are free to recognize embryos as human beings and protect them accordingly.¹² Although the Court declined to fully protect the sanctity of life in its earliest form, the Parrillo judgment is a significant step towards this recognition.¹³ The Court turned away from its previous rulings that treated embryos as possessions to be disposed of at will.¹⁴ Parrillo v. Italy significantly altered the trajectory of the Court’s jurisprudence.¹⁵ As a result, Parrillo is a strong foundation for the pro-life movement.¹⁶

This Comment explores the Parrillo decision and its potential effects on the Court’s jurisprudence. Part I describes the facts as presented to the Court. Next, Part II explains the holding of the Court, and Part III presents the Court’s analysis of Ms. Parrillo’s claim. Finally, Part IV discusses the reasoning of the Court and how it might affect future cases in Europe.

I. THE FACTS

The applicant, Ms. Parrillo, lived in Rome, and underwent in vitro fertilization (“IVF”) with her partner in 2002 at the Centre for Reproductive Medicine at the European Hospital in Rome (the “Centre”).¹⁷ Ms. Parrillo had intended to use the embryos to become pregnant, and start a family.¹⁸ However, shortly after the IVF process was completed, but before the embryos could be implanted, Ms. Parrillo’s partner passed away.¹⁹ Without her partner, Ms. Parrillo decided against embryonic implantation.²⁰ The five embryos that resulted from the IVF process were placed in cryopreservation.²¹ Ms. Parrillo requested several times that the embryos be released and donated to scientific research, and she wrote a letter in 2011 explicitly stating this request.²² The Centre’s director refused to release the embryos for scientific research on the “grounds that this type of research was banned and punishable as a criminal offence in Italy under section 13 of Law no. 40 of 19 February 2004.”²³ The Centre kept the embryos in a cryogenic storage bank in order to preserve them.²⁴

1 See Parrillo v. Italy, App. No. 46470/11, 2015 Eur. Ct. H.R., http://hudoc.echr.coe.int/ eng?i=001-157263.
2 Id. at 1–3.
3 Id. at 1; Convention for the Protection of Human Rights and Fundamental Freedoms, protocol art. 1, Nov. 4, 1950, 213 U.N.T.S 262 (“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”).
4 Parrillo, 2015 Eur. Ct. H.R. at 1; Convention for the Protection of Human Rights and Fundamental Freedoms art. 8, Nov. 4, 1950, 213 U.N.T.S 230 [hereinafter ECHR Article 8] (“(1) Everyone has the right to respect for his private and family life, his home and his correspondence. (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”).
5 Parrillo, 2015 Eur. Ct. H.R. at 1.
6 Legge 19 febbraio 2004, n. 40, G.U. Feb. 24, 2004, n. 45 (It.).
7 Art. 117 Costituzione (It.) (“Legislative power is exercised by the State and the Regions in compliance with the Constitution and the constraints deriving from EU legislation and international obligations.”); Parrillo, 2015 Eur. Ct. H.R. at 6.
8 Parrillo, 2015 Eur. Ct. H.R. at 7 (quoting Corte Cost. 24 ottobre 2007, n. 348 (It.). See Convention for the Protection of Human Rights and Fundamental Freedoms art. 32, Nov. 4, 1950, 213 U.N.T.S. 222, amended by Protocol 11 of Nov. 1, 1998, 155 E.T.S. 5 (“(1) The jurisdiction of the Court shall extend to all matters concerning the interpretation and application of the Convention and the Protocols thereto which are referred to it as provided in Articles 33, 34, 46 and 47. (2) In the event of dispute as to whether the Court has jurisdiction, the Court shall decide.”). See also Art. 117 Costituzione (It.).
9 Parrillo, 2015 Eur. Ct. H.R. at 27.
10 Id. at 46–47.
11 See infra Part IV and accompanying footnotes.
12 See infra Part III and accompanying footnotes.
13 See infra Part IV and accompanying footnotes.
14 Parrillo, 2015 Eur. Ct. H.R. at 27.
15 Id.
16 See Gregor Puppinck, Major ECHR Ruling: Human Embryos Are Not Things, Destruction May Be Prohibited, ACLJ, http://aclj.org/pro-life/major-echr-ruling-humanembryos-are-not-things-destruction-may-be-prohibited (last visited Nov. 22, 2015).
17 Id. at 3.
18 Id. at 34.
19 Id. at 3.
20 Id.
21 Id.
22 Id.
23 Id.

† B.A. 2011, Lynchburg College; J.D. 2016, Regent University School of Law.
†† B.A. 2012, University of Virginia; J.D. 2016, Regent University School of Law.

ABSTRACT

Germany maintains strict compulsory education laws that prevent families from educating their children at home. Germany strictly enforces these laws, with little regard to the families’ incentives to remove their children from the public schools. For example, these laws contain no exemption for families interested in homeschooling for religious purposes. The absence of such an exemption seems to contradict the internationally recognized right to religious freedom, a right concretely granted through three international treaties that Germany has both signed and ratified.

Several decisions by the European Court of Human Rights (ECHR)  give little to no credence to religious freedom within a homeschooling rights context. These decisions reflect a government’s preference to restrict homeschooling, justified primarily by a need to “stamp out parallel societies.”

This Note suggests that Germany’s compulsory education laws, which originate from Adolf Hitler’s Third Reich, are overly broad, brutally enforced, and they restrict a family’s ability to practice their religion through homeschooling. The Note proposes an alternative framework that the ECHR could employ to evaluate the both the legitimacy of such laws and the petitions by homeschooling families. This framework allows for courts to account for both a potentially reasonable law and weigh it against the religious interests of a family. Incorporating an approach will promote consistency, reliability, and objective analysis by a reviewing court, and will ultimately ensure an appropriate balance between religious liberty and state interests in ensuring an educated body of citizens.

INTRODUCTION

On August 29, 2013, the German Wunderlich family experienced a jolting break from their traditional morning routine.¹ At 8:00 a.m. that Thursday morning, a swarm of twenty state officials broke down the Wunderlich’s house door with a battering ram and took into custody all four of their children, each under the age of fifteen.² A police officer shoved Dirk Wunderlich’s, the father, into a chair, and refused to allow him to make an initial phone call.³ The officer physically restrained Mr. Wunderlich because the judicial order authorizing the removal of the children also permitted the army of state officials to use force.⁴ The German government separated this family and imposed criminal charges on the parents for homeschooling, an act in violation of Germany’s strict compulsory education laws.⁵

As more families around the globe become dissatisfied with their government-run school systems, the Wunderlich story is not uncommon.⁶ In 2006, five German families sought to remove their children from school temporarily because of certain required sex education classes that conflicted with their religious worldviews.⁷ The European Court of Human Rights (ECHR) denied their petition.⁸ That same year, the Konrad family petitioned before the ECHR requesting that the state exempt them from their region’s compulsory education statute so that they could educate their children in conformity with their religious and moral beliefs.⁹ The ECHR denied their petition.¹⁰ In 2013, the Romeike family sought legal shelter in the United States in fear that the German government would separate them for trying to homeschool, even when homeschooling for religious purposes.¹¹ Germany denied their request for an exemption and the Sixth Circuit denied their claim for asylum.¹²

This Note proposes that the German laws at issue in the aforementioned cases conflict with the internationally recognized right to religious freedom. This freedom encompasses parents’ rights to homeschool their children. This Note explores the issue of religious freedom and its extension to the right to homeschool in six main parts. In Part I, it begins by exploring the general concept of religious freedom and its significance to society. Part II examines both the nature of international religious freedom and its relation to Germany’s compulsory educational legal system. Part III accounts for a domestic perspective in Romeike v. Holder, noting language in the American system that supplements this threat to religious freedom. Part IV discusses homeschooling: what it is, why it is done, and why its nature comports with international religious freedom. Part V explains two ECHR cases involving both homeschooling and religious freedom. Part VI argues that the ECHR used a faulty approach in analyzing those cases, and presents the correct alternative analysis.

I. RELIGIOUS FREEDOM: ITS NATURE AND SIGNIFICANCE TO CIVIL SOCIETY

Certain activities exist strictly in a religious context: prayer, church attendance, tithing, giving to the poor, and the taking of communion—to name a few within the Christian faith.¹³ Because a Christian’s relationship with God is the driving force behind these activities, to restrict the performance of these activities is to infringe on one’s freedom of religion.¹⁴

The freedom of religion is the liberty to act in accordance with one’s religious convictions and thus with the choices they make as a result of those convictions.¹⁵ One may externally discern these convictions by focusing on the religious texts, longstanding traditions, or rules imposed by a legitimate institution or its representative.¹⁶ When a person acts because of his religious beliefs, the state has very little leeway in restricting the activity.¹⁷

Because one of the cores of civil society is freedom, and religious  liberty is an important manifestation of freedom, restricting the activity presents a detriment to society.¹⁸ Civil society is important because of the “social capital” it creates through the proliferation of certain virtues among its members: commitment, responsibility, and trust.¹⁹ Each of these ideals enables citizens to contribute to the “common good of society.”²⁰ The state furthers the ability of citizens to pursue these values by not interfering with their practices.²¹ In other words, by restraining itself in its regulatory power to a certain extent, it may permit citizens to contribute to the common good.

This describes the nature of civil society and freedom in general. What does religion, and therefore religious freedom, specifically offer to encourage individuals to contribute to society’s common good?Speaking primarily of monotheistic religions, people are convinced that behaving in a responsible and dedicated way reflects a mindset where their Creator primarily holds them accountable.²² This accountability contains a “commitment to build the common good, through personal responsibility and a relation of trust with other persons [that] is generated by recognition of the truth that has been given by God to human beings.”²³

While homeschooling is not only practiced by Christians, this Note focuses on the Christian faith due to its wide prevalence within the homeschooling communities.²⁴ Christianity is a unique monotheistic religion because it is one of the few that focuses on a loving relationship between a single all-powerful deity and humans as the deity’s creation.²⁵ This definition is important because relationships contain an element of choice, an element also inherent within the concept of liberty.²⁶ According to Christianity, a legitimate religious experience—the relationship with God—thrives only within a domain of freedom.²⁷ As one scholar explains,

This explanation of the Christian faith and its relationship to a Christian’s interaction with the state becomes important in the discussion of the general choice to homeschool since, as the following sections point out, religious fundamentalists dominate that particular community.

1 Verboten Values: Home Schooling in Germany and the Future of Freedom, THE FEDERALIST (Sept. 18, 2013) http://thefederalist.com/2013/09/18/verboten-values-2/.
2 Id.
3 Billy Hallowell, ‘Brutal and Vicious’: Armed German Police Storm Homeschooling Family’s House and Forcibly Seize Children, Report Claims, THE BLAZE (Aug. 30, 2013, 3:25 PM), http://www.theblaze.com/stories/2013/08/30/brutal-and-vicious-armed-german-policestorm-homeschooling-familys-house-and-forcibly-seize-children-report-claims/.
4 Id.
5 See Wunderlichs Regain Freedom to Leave But Vow to Stay and Fight, HOME SCH. LEGAL DEF. ASS’N, http://www.hslda.org/hs/international/Germany/201408280.asp (last visited Aug. 28, 2014).
6 For example, families in China have recently expressed serious dissatisfaction with their government-run public school systems. China maintains strict compulsory education laws, but thousands of families seek to homeschool due to rampant bullying, teacher-student abuse, and ineffective academic preparation. See, e.g., Lilian Lin, Homeschooling Becomes More Popular in China, WALL STREET JOURNAL (Aug. 27, 2013), http://blogs.wsj.com/chinarealtime/2013/08/27/homeschooling-becomes-more-popular -inchina/?mod=e2tw; Karen Lee, Legal Loophole Opens Up Chance for Homeschooling, S. CHINA MORNING POST (Jan. 7, 2014), http://www.scmp.com/news/hong-kong/article/1399191/legalloophole-opens-chance-homeschooling.
7 Dojan v. Germany, 2011-V Eur. Ct. H.R. 511, 514–16.
8 See id.
9 See Konrad v. Germany, 2007 Eur. Ct. H.R. 435, 437–38 (2006).
10 Id. at 444.
11 Romeike v. Holder, 718 F.3d 528, 530 (6th Cir. 2013).
12 Id.
13 These activities are not performed by a Christian by “obligation,” per se, but because of their direct connection to the Christian faith, which involves the development of a relationship with Jesus Christ. See Silvio Ferrari, Religion and the Development of Civil Society, 4 INT’L J. RELIGIOUS FREEDOM 29, 31–32 (2011) (noting the unique “communitarian dimension” of Christianity as a religion, a dimension enveloping both the human and his deity). See generally Romans 12:12; Hebrews 10:24–25; Malachi 3:8–10; Proverbs 22:9; Luke 22:17–20 (New International).
14 See Ferrari, supra note 13, at 32–33.
15 Michael J. Perry, Freedom of Conscience as Religious and Moral Freedom, 29 J. L. & RELIGION 124, 128 (2014).
16 Determining what constitutes religion can be a tricky feat. One scholar suggests three categories of “religion” that may help to determine whether the religious practice is legitimate for the purposes of the ideology in question: religion as belief, religion as identity, and religion as a way of life. For the purposes of this Note, a parent’s choice to homeschool their children likely falls within the third category: religion as a way of life. T. Jeremy Gunn, The Complexity of Religion and the Definition of “Religion” in International Law, 16 HARV. HUM. RTS. J. 189, 200–205 (2003) (“In this facet, religion is associated with actions, rituals, customs, and traditions that may distinguish the believer from adherents of other religions. For example, religion as a way of life may motivate people to live in monasteries or religious communities, or to observe many rituals, including praying five times a day, eschewing the eating of pork, or circumcising males.”).
17 See, e.g., American Convention on Human Rights, art. 12, Nov. 22, 1969, 1144 U.N.T.S. 143 (providing that the “[f]reedom to manifest one’s religion and beliefs may be subject only to the limitations prescribed by law that are necessary to protect public safety, order, health, or morals, or the rights or freedoms of others.”).
18 See Ferrari, supra note 13, at 29, 32–33.
19 Id. at 30 (citing ROBERT D. PUTNAM ET AL., MAKING DEMOCRACY WORK: CIVIC TRADITIONS IN MODERN ITALY 88–89 (1994)).
20 Id.
21 See id. at 30–31.
22 See id. at 31.
23 Id.
24 Robert Kunzman, Homeschooling and Religious Fundamentalism, 3 INT’L ELECTRONIC J. ELEMENTARY EDUC. 17, 19–20 (2010).
25 In his text comparing the various worldviews that influence how we view ourselves, others, and reality, James Sire explains the uniqueness of Christian theism regarding the longing for a relationship with a higher power. See JAMES W. SIRE, THE UNIVERSE NEXT DOOR 28, 32–34 (5th ed. 2009) (“How does God fulfill our ultimate longing? He does so in many ways: by being the perfect fit for our very nature, by satisfying our longing for interpersonal relationship . . . by being in his infinite love the cause of our hope for salvation.”).
26 See Ferrari, supra note 13, at 32 (noting that the communitarian dimension of Christianity “is based on a personal assent that questions the responsibility of each individual. In other words, persons are not born Christian but become Christian, and they become so not because they are members of a community, a people or a family, but because of a personal choice.”).
27 Id.
28 Id.

† B.A. 2012, Howard Payne University; J.D. 2016, Emory University School of Law.

INTRODUCTION

A law that goes unenforced may as well be a suggestion. In today’s world, suggestions never seem to carry much weight.¹ Such is the case with the United Nations’ Convention on the Rights of the Child (CRC or the “Convention”).² Entered into force in September 1990, and ratified by 193 countries, the CRC is the most widely ratified human rights treaty in the world.³ Three countries have held out; to this day the CRC has not been ratified by the United States, South Sudan, or Somalia.⁴ Almost 25 years old, it is difficult, and perhaps even dishonest, to say that the CRC has effected much change or improvement in terms of the status of children around the world.⁵

One of the principal reasons for this is the lack of enforcement of the CRC’s provisions within the States Parties (or “signatory nations”) who have ratified it.⁶ The CRC lacks the system of enforcement needed to make it more than just a twenty-five year-long suggestion; it needs to be enforced to allow for the adjudication of complaints of individual children. Currently, there is very little case law to be found which applies the Convention’s standards to cases, giving it insufficient foundation and thus making it difficult to determine the ways in which it is to be implemented and enforced.⁷ Instead, the implementation of the CRC is monitored by a committee of international experts whose “primary responsibility is to monitor reports submitted by States Parties on national implementation of [the] CRC.”⁸ Essentially, the committee gives criticism and makes recommendations, which the majority of member countries do not qualify as mandatory or necessary.⁹ The advisory, non-adversarial nature of the CRC relies on diplomacy rather than legal sanction,¹⁰ and for the time being, that is getting the children of this world nowhere.¹¹

Countries that are party to the CRC agree to take “all appropriate legislative, administrative, and other measures” to ensure that all children in their jurisdiction have their rights set forth in the Convention.¹² “Such rights include life and development; name, nationality, and prenatal care; health and access to healthcare services; and education.”¹³ “They also include protection from abuse and neglect, as well as freedom of expression, religion, association, and peaceful assembly.”¹⁴ The “CRC calls for the protection of children from economic, sexual, and other forms of exploitation; torture; and capital punishment for offenses committed before the age of [eighteen].”¹⁵ “It also provides special protections for orphans, refugees, and the disabled.”¹⁶ However, the prevalent lack of enforcement in certain countries is largely due to the flaws in the document itself,¹⁷ as well as cultural mores and norms that cause these member States to interpret the CRC differently.¹⁸ Often, member countries are dishonest with the CRC Committee about their degree of enforcement, and even more often, the countries lack the infrastructure required to implement and enforce the rules of the CRC.¹⁹ Additionally, the UN’s jurisdiction has very little enforcement of law behind it, often making its regulations rather idealistic and ineffective.²⁰

This Note will discuss in detail (1) the CRC’s background, key articles, and general problems, (2) the reasons behind the CRC’s lack of
enforcement, (3) the types of atrocities that are happening to children around the world due to its lack of enforcement, (4) the reasons why the United States has, year after year and president after president, chosen not to ratify it, and (5) some ways in which the policies and implementation could be changed in order to make enforcement more effective.

1 See Oona A. Hathaway, Making Human Rights Treaties Work: Global Legal Information and Human Rights in the 21st Century, 31 INT’L J. LEGAL INFO. 312, 312-13 (2003).
2 Convention on the Rights of the Child, adopted Nov. 20, 1989, 1577 U.N.T.S. 3 [hereinafter CRC].
3 LUISA BLANCHFIELD, CONG. RESEARCH SERV., R40484, THE UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD 1 (2013) [hereinafter CONG. RESEARCH SERV.].
4 Participating Countries, CHILD RIGHTS CAMPAIGN, http://www.childrightscampaign.org/what-is-the-crc/participating-countries (last visited Nov. 30, 2014).
5 Natasha Parassram Concepcion, The Convention on the Rights of the Child After Ten Years: Success or Failure? 7 HUM. RTS. BRIEF 2, 19 (2000) (“Although the CRC has highlighted children’s rights and works with states to enforce these rights, reality suggests that states have not followed through on their commitments to the CRC.”); see also Lynne Marie Kohm, A Brief Assessment of the 25-Year Effect of the Convention on the Rights of the Child, 23 CARDOZO J. INT’L & COMP. L. 323, 345 (2015) [hereinafter A Brief Assessment].
6 Concepcion, supra note 5, at 2. (“Despite the nearly universal ratification of the CRC, the situation of the world’s youth casts doubt over actual domestic implementation and enforcement of the convention. In 1999, more than a decade after the CRC was adopted, the United Nations Children’s Fund (UNICEF) indicated that the plight of children worldwide has not significantly improved. As of 1999, an estimated twelve million children under the age of five die every year, mostly of easily preventable causes; 130 million children in developing countries, a majority of whom are girls, are not in primary school; 160 million children are severely or moderately malnourished; approximately 1.4 billion children lack access to safe water; and 2.7 billion children lack access to adequate sanitation.”); see also A Brief Assessment, supra note 5, at 344 (“Other inconsistencies are apparent in the lack of enforcement within the Convention itself, within the United Nations, and within the international community.”).
7 Stefanie Grant, Functional Distinction or Bilingualism? Human Rights and Trade: The UN Human Rights System, 5 THE WORLD TRADE FORUM, INT’L TRADE & HUMAN RIGHTS: FOUND. AND CONCEPTUAL ISSUES 137, 138 (Frederick M. Abbott et al. eds., 2006).
8 CONG. RESEARCH SERV., supra note 3, at 3.
9 Id. at 9.
10 Id.
11 See id. at 15–16 (describing the areas of ineffectiveness of the CRC as a whole).
12 CRC, supra note 2, at 46.
13 CONG. RESEARCH SERV., supra note 3, at 3; see also CRC, supra note 2 at 47, 52–53.
14 CONG. RESEARCH SERV., supra note 3, at 3; see also CRC, supra note 2, at 48–50.
15 CONG. RESEARCH SERV., supra note 3, at 3; see also CRC, supra note 2, at 50, 54–55.
16 CONG. RESEARCH SERV., supra note 3, at 3; see also CRC, supra note 2, at 50–51.
17 See discussion infra Section II.A.
18 See A Brief Assessment, supra note 5, at 343 (“Furthermore, others question the Western, idealistic view of universal children’s rights that fails to take into account regional differences.”); see also Philip Alston, The Best Interests Principle: Towards a Reconciliation of Culture and Human Rights, in THE BEST INTERESTS OF THE CHILD: RECONCILING CULTURE AND HUMAN RIGHTS 1, 23 (Philip Alston ed, 1994) (discussing the cultural differences in the context of parental responsibility, parental rights, and child custody). See generally Sonia Harris-Short, International Human Rights Law: Imperialist, Inept and Ineffective? Cultural Relativism and the U.N. Convention on the Rights of the Child, 25 HUM. RTS. Q. 130 (2003) (discussing the use of the cultural relativism argument at the UN Committee on the Rights of the Child and how the “cultural difference” argument reflects the inherent limitations and fundamental weaknesses of an international legal system founded on a “society of States” where individual voices as well as voices of local governments are effectively silenced).
19 A Brief Assessment, supra note 5, at 345 (“[B]ecause enforcement mechanisms are almost entirely internal, other problems such as honesty in enforcement and lack of infrastructure for enforcement in States Parties can be troubling, as evidenced by the fact that many of the trafficking issues come from groups that are not actually entities that could ratify the CRC, but exist nonetheless within States Parties.”); see also Heather L. Carmody, The Child Soldiers Prevention Act: How the Act’s Inadequacy Leaves the World’s Children Vulnerable, 43 CAL. W. INT’L L. J. 233, 245–46 (2012) (“State Parties recently emerging from internal conflict may not have the infrastructure and organizations necessary to address the long-term needs of its former child soldiers.”).
20 See A Brief Assessment, supra note 5, at 345–46.

† B.A. 2013, California Baptist University; J.D. 2016, Regent University School of Law.

These are the words of a young girl who was a victim of human trafficking.² Loreta is not the only victim of this horrific crime, as human trafficking is an ever-increasing industry.³ The International Labour Organization estimates that more than 20.9 million individuals are currently the victims of forced labor, and an estimated 4.5 million of these individuals are forced into human sex trafficking.⁴ Human sex trafficking is “the fastest-growing business of organized crime and the third-largest criminal enterprise in the world.”⁵ Many victims of this crime are adult and adolescent women.⁶ According to the Federal Bureau of Investigation:

It is assumed that if an individual knows that a prostitute was coerced into sex trafficking, then the individual will not have sex with the prostitute; however, this is not always the case.⁸ Individuals who have sex with girls involved in sex trafficking typically have knowledge of the sex trafficking industry and potentially even know that their prostitute has been sex trafficked.⁹ One instance of this abnormality is the continued sexual exploitation of young women by private military contractors.

Over the last decade there has been a rise in the military’s use of private military contractors (PMC) as the United States has sought to reduce its budget.¹⁰ The United States has acknowledged that this increase in PMC deployments has contributed to the issue of human trafficking, as there have been several negative side effects of the implementation of PMCs.¹¹ First, there has been an increased number of incidences of PMCs involvement in labor and sex trafficking (often during peacekeeping operations).¹² Second, there is little to no way of policy enforcement to reprimand PMCs involvement in human sex trafficking.¹³ Third, incidences of PMCs involvement in sex trafficking have led to a plethora of bad publicity for the United States and its military.¹⁴

This Note first examines the military’s increased use of Private Military Firms (PMF) and PMCs. This Note next discusses previous PMF and PMC labor and sex trafficking violations. This note further analyzes the current laws in place to prevent PMF and PMC involvement with human trafficking, and the implementation of prior policies. Likewise, this Note analyzes why current laws, such as the Trafficking Victims Protection Act (TVPA), have failed. Finally, this Note concludes by proposing a solution that will provide a way to prosecute PMFs and PMCs involved in sex trafficking violations while forcing governmental agencies to cut ties with PMFs and PMCs that violate trafficking laws.

I. HISTORY

A. History of Military Sexual Exploitation

“Throughout history, women have been treated as spoils of war; wherever there has been military occupation, incidents of rape and sexual assault have been prevalent. . . . [S]exual abuse of women has been regarded as an inevitable feature of war.”¹⁵ Over time, the nexus between military deployment and sexual assault has not diminished.¹⁶ Even today, the effects of military deployment in otherwise cold conflicts nevertheless negatively impact women.¹⁷ Recently, a Department of Defense (DOD) report on human trafficking showed women being rushed to an area of war by traffickers to meet the needs of the military personnel stationed in the area.¹⁸ The culture of the military and its views and actions towards women and sexuality are largely to blame for these demoralizing problems.¹⁹ The recent trend towards utilizing PMCs in place of military personnel has intensified hostile actions towards women in various PMC job locations since PMCs often carry the same cultural views towards women;²⁰ yet there is a lack of current legislation to provide for efficient and adequate prosecution of PMC involvement in human trafficking.²¹

1 EQUALITY NOW, SURVIVOR STORIES: LORETA 22 (2014), http://www.equalitynow.org/sites/default/files/Survivor_Stories.pdf.
2 Id. See also Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime, adopted Nov. 15, 2000, 2237 U.N.T.S. 319, 344 (entered into force Dec. 25, 2003) (defining trafficking in persons as “the recruitment, transportation, transfer, harboring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labor or services, slavery or practices similar to slavery, servitude or the removal of organs.”).
3 Amanda Walker-Rodriguez & Rodney Hill, Human Sex Trafficking, FBI L.
ENFORCEMENT BULL., Mar. 2011, at 2, https://leb.fbi.gov/2011/march/leb-march-2011. See generally Human Trafficking, UNITED NATIONS OFF. ON DRUGS & CRIME, https://www.unodc.org/unodc/en/human-trafficking/what-is-human-trafficking.html (last visited Oct. 29, 2015) (noting that every year human trafficking affects thousands of men, woman, and children).
4 New ILO Global Estimate of Forced Labour: 20.9 Million Victims, INT’L LABOUR ORG. (June 1, 2012), http://www.ilo.org/global/about-the ilo/newsroom/news/WCMS_182109 /lang–en/index.htm.
5 Walker-Rodriguez & Hill, supra note 3, at 2.
6 U.S. DEP’T OF STATE, TRAFFICKING IN PERSONS REPORT 6 (2006), http://www.state. gov/documents/organization/66086.pdf.
7 Walker-Rodriguez & Hill, supra note 3, at 3.
8 Cf. Angela Snell, Note, The Absence of Justice: Private Military Contractors, Sexual Assault, and the U.S. Government’s Policy of Indifference, 2011 U. ILL. L. REV. 1125, 1139– 40 (2011) (noting that while the U.S. government implemented regulations to guarantee their employees did not engage in human trafficking, “it is doubtful that the regulations will accomplish their laudable objective, since [c]ontractors are unlikely to self-report.”) (alternation in original).
9 Cf. id. at 1139–40, 1160 (noting that even though the Department of Defense “adopted a zero-tolerance policy on trafficking activities for military personnel” trafficking scandals involving military contractors still persisted).
10 See id. at 1129.
11 See Enforcing U.S. Policies Against Trafficking in Persons: How Is the U.S. Military Doing?: Briefing Before the Comm’n on Sec. & Cooperation in Eur. & the H. Armed Servs. Comm., 108th Cong. 4, 7 (2004) (statement of Rep. Christopher H. Smith, Chairman, Comm’n on Sec. and Cooperation in Eur., and Ambassador John R. Miller, Director, Office to Monitor and Combat Trafficking in Persons, U.S. Department of State).
12 See id. at 2, 7.
13 See id. at 4 (statement of Rep. Christopher H. Smith, Chairman, Comm’n on Sec. and Cooperation in Eur.).
14 See id. at 2–3.
15 Snell, supra note 8, at 1127–28, 1134. “In 2003, nearly thirty percent of female veterans from Vietnam through the first Gulf War surveyed by psychologist Anne Sadler and her colleagues said they were raped in the military. A 1995 study of female veterans reported that ninety percent had been sexually harassed, which was defined broadly as anything from being pressured for sex to being leered at by fellow service members. Military reports placed the number of sexual assaults in the military at 2670, but the Pentagon itself estimates that eighty to ninety percent of military sexual assaults are never reported and that the figure given is probably grossly inaccurate.” Id. at 1133.
16 See id. at 1158–59. See also Mindy Kotler, The Comfort Women and Japan’s War on Truth, N.Y. TIMES (Nov. 14, 2014), http://www.nytimes.com/2014/11/15/opinion/comfortwomen-and-japans-war-on-truth.html?_r=0 (discussing the Japanese military’s official policy of using comfort women during WWII, and recent attempts by the Japanese government to discredit the historical record).
17 Snell, supra note 8, at 1132.
18 See U.S. DEP’T OF DEF., ASSESSMENT OF DOD EFFORTS TO COMBAT TRAFFICKING IN PERSONS: PHASE II—BOSNIA-HERZEGOVINA AND KOSOVO 7 (2003), www.dodig.mil/ FOIA/ERR/HT-Phase_II.pdf (discussing evidence of sex trafficking by various multinational military related personnel in post-conflict Bosnia and Herzegovia).
19 Snell, supra note 8, at 1132–33.
20 See id. at 1133.
21 U.S. DEP’T OF DEF., supra note 18, at 7, 10.

† B.A. 2010, Vanguard University of Southern California; J.D. 2016, Regent University School of Law.

Reviewed by Kathleen A. McKee^† | 2 Regent J. Glob. Just. & Pub. Pol. 165 (2015)

Since the 1990’s, the public has been made a spectator to corporate behavior that has had a significant adverse impact on society at large. The collapse of Enron Corporation,¹ the fiasco of mortgage backed securities,² and more recently, the disclosure of Volkswagen’s manipulation of its emissions data³ have resulted in either a disruption of the financial market itself or, in the case of Volkswagen, a significant drop in sales. This, in turn, has provoked public discussion of the need for greater governmental regulation of corporations and of the stock market as well as the social responsibility of corporations. The concept of the social responsibility of corporations is of relatively recent coinage. It reflects a shift in focus from the thinking of earlier economists such as Milton Friedman. In 1970, Friedman published an article in The New York Times Magazine titled “The Social Responsibility of Business Is to Increase Its Profits.”⁴ In this article he observed that

In 2002, in presenting his semiannual report on the economy to the Senate Banking Committee, Alan Greenspan, the chairman of the Federal Reserve Bank, focused on the recent upheaval in the stock market vis a vis the relationship between corporate managers and stockholders.⁶ Although he referenced other uncertainties that could impact the stock market such as future disclosure of corporate malfeasance, and global political events and terrorism, his analysis did not extend to a discussion of the general social responsibilities of corporations.⁷ He limited his discussion to the role of corporate infrastructure and market forces.

He went on to say that

In the aftermath of such corporate scandals, Congress enacted legislation to further regulate corporations,¹⁰ and the U.S. Department of Justice has undertaken investigations that in some instances have resulted in criminal prosecutions.¹¹ Some firms have chosen to respond by promulgating their own codes of ethics as an institutional response to the corporate scandals.¹²

Lewis Solomon’s book, Evangelical Christian Executives, examines an alternative model for business corporations in which the business founders integrate faith in their day-to-operation of their businesses and define corporate responsibility to encompass shareholders, employees, customers, and the community at large. Solomon limits his study to six companies in six different industries: Covenant Transport; R.B. Pamplin Corporation; ServiceMaster Company; Herman Miller, Inc.,; Interstate Batteries System of America, Inc.; and R.W. Beckett Corporation. The individual case studies examine a number of different aspects of these businesses. Among them are the leadership styles of the chief executive officers, the core values of each business, the challenges faced by each business, and how these businesses have resolved external controversies.

I. FORM OF CORPORATE LEADERSHIP

As a stepping off point, Lewis examines the form that corporate leadership takes in each of the six companies reviewed.¹³ He divides the leaders into two groups.¹⁴ One group not only weaves its faith into the operation of the business but seeks to use the business as a vehicle for proselytizing non-believers (e.g., Covenant Transport, Inc.).¹⁵ The other group prefers what Solomon refers to as “a more sophisticated approach, based on the biblical principles of stewardship or servant-leadership (or both concepts), actively pursu[ing] a values management strategy” (e.g., R.B. Pamplin Corp).¹⁶ The companies are furthered divided into three different models of evangelical Christian business leadership: constant, transformational, and evolving.¹⁷ He designates Covenant Transport, Inc. and R.B. Pamplin Corp. as constant firms (i.e., “[C]ontinually managed with a religious-orientation from their founding to the present day.”).¹⁸ Service Master Co. and Herman Miller, Inc. are designated as transformational firms.¹⁹ They have undergone a transformation over the years becoming more secular but have retained a “spiritual, broadly inclusive” approach in conducting business.²⁰ Interstate Batteries system of America, Inc. and R. W .Beckett Corp. are offered as examples of evolving models of business.²¹ Each started as a secular organization but has evolved into a religious-based entity.²²

1 See Behind the Enron Scandal: Chronology of a Collapse, TIME,
http://content.time.com/time/specials/packages/article/0,28804,2021097_2023262_2023247,00.html (last visited Dec. 29, 2015). On February 20, 2001, Enron stock closed at $75.09 per share. By August 14, 2001, the value of a share of Enron had dropped by almost 50% to $39.55 per share. By December 2, 2001, when Enron filed for bankruptcy, its stock closed at $.26 per share. 2 See David Ingram & Peter Rudegeair, U.S. Accuses Bank of America of Mortgage-Backed Securities Fraud, REUTERS (Aug. 6, 2013, 7:04 PM), http://www.reuters.com/article/us-bofa-justice-idUSBRE9750ZU20130806.
3 See Graeme Wearden & Jullia Kollewe, VW Emissions Scandal: Misconduct,
Process Failure and Tolerance of Rule-breaking Blamed—as It Happened, THE GUARDIAN (Dec. 10, 2015, 9:59 PM), http://www.theguardian.com/business/live/2015/dec/10/volkswagen-vw-grilling-emissions-scandal-bank-of-england-business-live; see also Nathan Bomey, Volkswagen U.S. Sales Feel Effects of Emissions Scandal, USA TODAY (Nov. 3, 2015, 11:25 AM), http://www.usatoday.com/story/money/cars/2015/11/03/volkswagen-us-salesfeel-effects-emissions-scandal/75090104/.
4 Milton Friedman, The Social Responsibility of Business Is to Increase Its Profits, N.Y. TIMES MAG., Sept. 13, 1970. 5 Id.
6 Corporate Conduct: Excerpts from Report by Greenspan at Senate, N.Y. TIMES, July 17, 2002, http://www.nytimes.com/2002/07/17/business/corporate-conduct-excerpts-fromreport-by-greenspan-at-senate.html.
7 Id.
8 Id. 9 Id.
10 See Larry Bumgardner, Reforming Corporate America: How Does the SarbanesOxley Act Impact American Business, 6 Graziadio Bus. Rev. (2003), http://gbr.pepperdine.edu/2010/08/reforming-corporate-america/; see also Brooke Masters, Enron’s Fall Raised the Bar in Regulation, FIN. TIMES (Dec. 1, 2011, 5:38 PM), http://www.ft.com/cms/s/0/ 9790ea78-1aa9-11e1-ae14-00144feabdc0.html#axzz3viBA8xzU.
11 See Matt Apuzzo & Ben Protess, Justice Department Sets Sights on Wall Street Executives, N.Y. TIMES, Sept. 9, 2015, http://www.nytimes.com/2015/09/10/us/politics/new-justice-dept-rules-aimed-at-prosecuting-corporate-executives.html?_r=0.
12 Steven Savides, Firms Raise Their Own Codes of Ethics, THE CHRISTIAN SCI. MONITOR, Nov. 4, 2002, http://www.csmonitor.com/2002/1104/p18s01-wmcr.html.
13 Lewis D. Solomon, EVANGELICAL CHRISTIAN EXECUTIVES: A NEW MODEL FOR BUSINESS CORPORATIONS 8-12 (2004). 14 Id. at 9.
15 Id.
16 Id. at 9-12.
17 Id.
18 Id.
19 Id.
20 Id.
21 Id.
22 Id.

† Associate Professor of Law, Regent University School of Law.

INTRODUCTION

Clara Zheng is from Zilin, China, the closest providence to the ChinaNorth Korea border.¹ For the past several years, her church in Zilin has been operating a secret safe house for North Korean defectors. Clara has read in the Korean news and international reports that many North Korean families risk their lives by crossing the river from North Korea to flee to China.² In North Korea, being a Christian is considered one of the gravest political crimes.³ Clara wondered how anyone could sit idly by and watch the Chinese government force countless starving North Korean families to repatriate.⁴ In Clara’s church, people talk about how the Chinese government may punish Chinese citizens who help North Koreans. Last month, despite the well-planned church operation, Clara’s friend who accompanied her on many operations was arrested and put in jail. Fearful of being punished by the Chinese government, Clara paid $15,000 to travel to the United States, hoping for a safe haven. She was hopeful because, in the past, the U.S. government has granted refugee status to couples that faced forced sterilization of their second child under China’s One-Child Policy.⁵ However, last week, an immigration judge denied Clara refugee status and ordered her to be removed from the U.S. Her lawyer told her that the court’s decision is not surprising because the U.S. does not generally grant refugee status to a Chinese citizen who aided North Korean defectors, in violation of a generally applicable law.⁶

The 108th Congress, with the assistance of President George W. Bush, acted to lend American support to the North Korean refugees by passing the North Korean Human Rights Act of 2004.⁷ The congressional act implies that the U.S. will protect, or at least endorse, groups that support North Korean human rights, including the people who feed, house, and protect North Korean defectors.⁸ Ironically, however, the U.S. government still denied refugee status to many Chinese citizens who were punished by their government for aiding North Korean defectors.⁹ The Third Circuit Court of Appeals denied refugee status to the Chinese applicants because they violated a “fairly administered [Chinese] law” and the punishment did not amount to “persecution.”¹⁰ However, is there really such a law that outlaws assistance to North Korean defectors? If there is, is this Chinese law and policy in violation of certain international human rights?How should the U.S. courts analyze “persecution” by non-democratic governments like that of China and North Korea? How do diplomatic relations between the U.S. and these two countries affect America’s open disapproval of China’s human rights violations?

The Third Circuit has held that if a law is (1) fairly administered or (2) generally applicable to all citizens, then the presumption is that the law is legitimate and may be rightfully enforced.¹¹ In other words, if a court decides that: (1) there is a Chinese law prohibiting assistance to North Korean defectors, and (2) such law is generally applicable to Chinese citizens, then no protection would be granted to the applicant, whose act was the exact behavior the North Korean Human Rights Act wished to protect.¹² As a result, the courts may deny asylum/refugee status to these Chinese citizens who then might be forced to return to China, where he/she faces the possibility of punishment, often severe, for aiding the defectors.¹³

Thus, the current analysis needs to include whether prosecution was a mere pretext for persecution. Specifically, is the punishment the applicants face upon return so severe, when compared to the crime, that the prosecution amounts to persecution? This Article suggests that China might be using criminal punishment as a pretext for persecution, and the evidence is based on disproportionately severe punishment compared to the severity of the actual crime.¹⁴ Hence, even if one assumes that a Chinese law was fairly and generally applied to all of its citizens, it is  possible that the Chinese citizens who aid North Korean defectors are persecuted through disproportionately severe punishment.¹⁵ This Article argues that the courts should first examine an applicant’s criminal history, if any, and secondly, use a hybrid approach for granting refugee status to Chinese citizens who would be prosecuted (vis-a-vis persecuted) for assisting North Korean defectors. These two approaches are of paramount importance especially when the courts are uncertain whether the Chinese penal code outlaws such activity.¹⁶

Part I of the Article begins with a brief discussion of U.S. refugee law, international human rights law, applicable Chinese law, and recent U.S. case law under Long Hao Li v. Attorney General. Part II analyzes whether criminal prosecution of Chinese citizens who assist North Korean defectors may be a mere pretext for political prosecution. Part III argues that the U.S. courts should consider a hybrid approach; a totality of the circumstances test that considers additional grounds of appeal for a refugee application.¹⁷ The hybrid approach is juxtaposed with the dominant, current approach, where refugee status is denied or granted on account of five possible grounds (race, religion, nationality, membership in a particular social group, or political opinion).¹⁸ The Article will then explain how the hybrid approach can better reflect Li’s situation and better complement the international human rights standard. Part IV applies the two approaches analyzed in Parts II and III to someone in Clara’s situation. Finally, the Article will discuss prospects for human rights implementation and legal development in China. 

I. INTERNATIONAL HUMAN RIGHTS STANDARD AND THE U.S. REFUGEE LAW

The Attorney General may grant refugee status to an alien who has suffered past persecution or has a well-founded fear of future persecution.¹⁹ The applicant must prove that he is unable or unwilling to return to the country of origin, because of persecution “on account of race, religion, nationality, membership in a particular social group, or political opinion.”²⁰

A. Persecution

Even though the United Nations Handbook on Procedures and Criteria for Determining Refugee Status does not offer a definition of persecution,²¹ U.S. courts traditionally held that persecution means that there is a subjectively genuine and objectively reasonable threat to life or freedom that an ordinary person would regard as offensive (i.e., death, torture, confinement, or extreme economic deprivation).²² Also, the harm is “inflicted either by the government of a country or by persons or an organization that the government was unable or unwilling to control.”²³ In regards to the objective standard of “reasonable fear,” an applicant’s testimony without corroborating evidence may be sufficient, as long as it is “credible, persuasive, and refers to specific facts.”²⁴

Still, applying a general definition of persecution is not easy for the courts, as they are tasked with the challenge of determining whether a government had a “legitimate, prosecutorial purpose” in punishing people who allegedly committed a crime.²⁵ In deciding whether a government has a legitimate ground to prosecute a person or a group, some courts have focused their analysis on whether a government has reason to believe that the person was engaged in criminal activity.²⁶ Other courts have focused on whether a government has undertaken “any formal prosecutorial measures” regarding the actions committed.²⁷ A marginally smaller number of courts have also discussed whether a government was driven by a political motive in excessively or arbitrarily punishing a person.²⁸

1 Clara Zheng’s story as portrayed in this Article is entirely fictitious. Her story serves to illustrate the typical plight of an individual who violates Chinese law in order to aid North Korean defectors. While not every story is the exactly the same, every Chinese citizen that gives assistance to a North Korean risks much in doing so, and if caught faces serious repercussions. The story of Clara Zheng is meant to personalize for readers the challenges such people encounter regularly.
2 See, e.g., Those Who Flee: North Korean Refugees, N. KOR. NOW, http://www.northkoreanow.org/the-crisis/those-who-flee-north-korean-refugees (last visited Aug. 27, 2015).
3 Human Rights Council, Rep. of the Comm’n of Inquiry on Human Rights in the Democratic People’s Republic of N. Kor. on its Twenty-Fifth Session, U.N. Doc. A/HRC/25/63, at 7–8 (Feb. 7, 2014); see also HUMAN RIGHTS WATCH, WORLD REPORT 2013: NORTH KOREA (2013), http://www.hrw.org/world-report/2013/country-chapters/north-korea [hereinafter WORLD REPORT 2013: NORTH KOREA] (reporting that many North Korean defectors flee to neighboring countries because of serious food shortages, insecurity, and fear of torture and inhumane treatment, political prisoner/labor camps, and execution for “vaguely defined offenses such as ‘crimes against the state and crimes against the people.’”).
4 See Those Who Flee, supra note 2.
5 Sun Wen Chen v. Att’y Gen., 491 F.3d 100, 108–09 (3d Cir. 2007), overruled by Guang Lin-Zheng v. Att’y Gen., 557 F.3d 147, 157 (3d Cir. 2009).
6 See, e.g., Long Hao Li v. Att’y Gen., 633 F.3d 136, 137–38 (3d Cir. 2011); but see Xun Li v. Holder, 559 F.3d 1096, 1110–11, 1113 (9th Cir. 2009).
7 North Korean Human Rights Act of 2004, Pub. L. No. 108-333, 118 Stat. 1287 (codified as amended at 22 U.S.C. § 7801–7845 (2012 & Supp. I 2013)).
8 See id. § 203, 118 Stat. at 1294 (codified as amended at 22 U.S.C. § 7833 (2012 & Supp. I 2013)).
9 Alyce S. Ahn, Note, Prosecution or Persecution: Contradictions Between U.S. Foreign Policy & the Adjudication of Asylum Claims Involving the Harboring of North Korean Refugees, 24 GEO. IMMIGR. L.J. 311, 311–12 (2010).
10 Long Hao Li., 633 F.3d at 138, 141, 147.
11 Id. at 137–38, 141.
12 See Xun Li, 559 F.3d at 1112–13. However, “a generally applicable law can provide the basis for withholding of removal, but only where the petitioner establishes a connection between the prosecution and his or her political opinion . . . .” Long Hao Li, 633 F.3d at 137.
13 See, e.g., Long Hao Li, 633 F.3d at 137–38, 143–44; see also Xun Li v. Holder, 559 F.3d at 1112 (finding clear evidence that the Chinese petitioner would be subjected to severe punishment upon return to China).
14 Long Hao Li, at 151 (Roth, J., dissenting).
15 Xun Li, 559 F.3d at 1109 (quoting Fisher v. INS, 79 F.3d 955 (9th Cir. 1996)).
16 Compare Long Hao Li, 633 F.3d at 144 (finding “that Chinese law penalizes people who assist others who cross the border illegally”), with Xun Li 559 F.3d at 1098 (stating that the court has not “discovered a Chinese law that prohibits providing assistance to foreign refugees”).
17 See Ang v. Gonzales, 430 F.3d 50, 55–56 (1st Cir. 2005).
18 See infra section I(B).
19 8 U.S.C. § 1158(b)(1)(A) (2012); 8 U.S.C. § 1101(a)(42)(A) (2012); see also 8 C.F.R.
§ 208.13(b)(1), (b)(1)(i)(A)–(B) (2013) (stating that the well-founded fear of future persecution is presumed when suffering from a past persecution is proved; however, the government can
rebut this presumption by a preponderance of evidence that the conditions in the applicant’s country have changed or that the applicant is reasonably expected to relocate to another part of country).
20 8 U.S.C. § 1158(c)(2) (2012).
21 Michel Moussalli (Director of International Protection), Handbook on Procedures and Criteria for Determining Refugee Status Under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, ¶ 51, U.N. Doc. HCR/IP/4/Eng/REV.1 (1979)
[hereinafter U.N. Handbook].
22 13 Am. Jur. 3D Proof of Facts § 4 (1991) [hereinafter Proof of Facts]; see also U.N. Handbook, supra note 21, ¶ 52 (“The subjective character of fear of persecution requires an evaluation of the opinions and feelings of the person concerned. It is also in the light of such opinions and feelings that any actual or anticipated measures against him must necessarily be viewed.”).
23 Proof of Facts, supra note 22, § 4.
24 Tafreshi v. McElroy, 112 F.3d 505, No. 96-2755, 1997 WL 234670, at *2 (2d Cir. 1997) (unpublished table decision (quoting Melendez v. U.S. Dep’t of Justice, 926 F.2d 211, 215 (2d Cir. 1991); 8 C.F.R. § 208.13(a) (2013); see also Doptante v. INS., 198 F.3d 253, No.
97-71408, 1999 WL 801509, at *1 (9th Cir. 1999) (unpublished table decision); Velis v. INS, 47 F.3d 1178, No. 94-9526, 1995 WL 66536, at *3–4 (10th Cir. 1995) (unpublished table decision).
25 Proof of Facts, supra note 22.
26 Ramirez Rivas v. INS, 899 F.2d 864 (9th Cir. 1990), vacated, 502 U.S. 1025 (1992) (mem.).
27 Blanco-Lopez v. INS, 858 F.2d 531, 534 (9th Cir. 1988) (holding that a government’s prosecution is “legitimate” if it has undertaken “formal prosecutorial measures”), superseded by statute, Real ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231, as recognized in Parussimova v. Mukasey, 555 F.3d 734, 739–40 (9th Cir. 2008).
28 See, e.g., Ramirez Rivas, 899 F.2d at 868 (citing U.N. Handbook, supra note 21, ¶ 85).

† Ra Hee Jeon was born and raised in South Korea. She graduated cum laude from George Washington University in 2011, and she received her Juris Doctorate degree from Regent University School of Law in 2015. She currently practices immigration law in Virginia Beach, Virginia.