Justice Stephen Breyer’s latest book, like his previous literary efforts, falls within the mainstream of progressive statutory and constitutional interpretation. He furthers this agenda while at the same time assuring his readers that he is merely giving a neutral survey1 of the problems courts face when dealing with an ever smaller and interdependent world. Interdependence with the rest of the world is one of the primary themes of the book, and Breyer wants to “explain just what that abstract term means concretely for the work of one American institution, the Supreme Court.”2

In order to understand the full implications of Breyer’s argument in The Court and the World, one must first understand the argument in his earlier book, Active Liberty: Interpreting Our Democratic Constitution3 . In Active Liberty, Breyer argues that the liberty that the Founders were protecting was an ancient one—not just the concept of being left alone by the government, but a system in which all citizens have the right to active participation.4 The idea of a citizen being left alone by his government is a modern theory that included freedom from government,5 but it means much more. It was the “freedom of the individual citizen to participate in the government and thereby to share with others the right to make or to control the nation’s public acts.”6 Breyer’s emphasis is the former—ancient liberty—active democratic participation by citizens. Breyer states: “My thesis is that courts should take greater account of the Constitution’s democratic nature when they interpret constitutional and statutory texts.”7 Breyer makes this sound like a positive interpretive perspective—power to the people, but his explanation takes this power back from the people and deposits it in the Court. He writes: “[T]he Constitution’s democratic objective [is] not simply restraint on judicial power . . ., but also a source of judicial authority and an interpretive aid to more effective protection of ancient and modern liberty alike.”8

Breyer is asserting that in order to protect liberty rights, the Court has the authority to define the Constitution with democratic objectivity (i.e., what best protects democracy, even if it goes beyond the natural boundaries of the text). For Breyer, the boundaries that inhibit the Court are not textual, but the Court’s authority to protect democracy, which as it regularly turns out, is limitless. This Breyer calls the “democratic objective”9 of the Constitution. In fact, the entire thesis of Active Liberty is the “Constitution’s democratic objective.”10 He supports this thesis in the main body of the book by “examples [that] suggest that increased emphasis upon that [democratic] objective by judges when they interpret a legal text will yield better law–—law that helps a community of individuals democratically find practical solutions to important social problems.”11 Sounds positive, but what does this mean and what should the Court’s methodology be to reach that objective? Breyer’s answer—a judge must consider “practical consequences, that is, consequences valued in terms of constitutional purposes, when the interpretation of constitutional language is at issue.”12 It’s the consequences, not the text, that should be primary in a judge’s consideration. The text must bend to the desired outcome.13 This is active liberty. A more appropriate title for this book would be “Active Judiciary.”

INTRODUCTION

On December 10, 2015, the Supreme Court of British Columbia overturned a decision by the Law Society of British Columbia (“LSBC”) that previously stood to usurp the religious rights of Trinity Western University (“TWU”) and its expected law school attendants by denying the school accreditation due to the school’s religious-based sexual restrictions on students and faculty. 1 The procedural history leading up to the Supreme Court is as follows:

The LSBC, in denying accreditation, overstepped its powers conferred upon it by the Federation of Law Societies of Canada (“FLS”).3 While the LSBC generally has jurisdiction to decide whether to approve a law school’s faculty, this jurisdiction only extends to the academic qualifications of the school. 4 This Comment will discuss how the Court correctly decided in favor of TWU, taking into consideration the otherwise sufficient academic requirements of the school and why TWU imposes sexual restrictions on its faculty and students so as to reflect evangelical Christian beliefs and practice. This Comment will also discuss how this decision serves as a great advancement for religious rights in Canada because it makes the legal profession more inclusive, and does not serve as a restriction on the LGBT community or the community at large, nor does it entail state sponsored religion.

I. THE FACTS

Evangelicalism, a protestant subculture, represents approximately 11-12% of the Canadian population, therefore forming a minority religious subculture. 5 TWU is the largest privately funded evangelical Christian school in Canada, currently offering education to roughly 4,000 students.6 The law school was still a proposal, pending accreditation, prior to the Supreme Court decision.7 TWU’s mission statement is as follows:

Certain restrictions on sexual activity are practiced by Evangelicals and are therefore encompassed by the school’s mission statement.9 Such restrictions include a belief that marriage may solely exist between one man and one woman and that premarital sex is also in violation of the sanctity of marriage.10 Ultimately, students and staff are required to “sign a covenant pledging to abstain from sexual intimacy outside of marriage between one man and one woman. Critics claim it infringes the rights, in particular, of lesbian and gay students.” 11 These restrictions on sexual behavior are ultimately what triggered the LSBC to deny accreditation to the school by refusing to approve the faculty. 12 After being denied accreditation, “TWU sought a declaration that the society’s decision is ultra vires and invalid and that it unjustifiably infringes on their Charter rights.”13

INTRODUCTION

Individual European country taxes have recently been tailored towards a policy that incentivizes clean energy alternatives in order to
curb CO2 and other harmful emissions that contribute to the continent’s carbon footprint.1 Cutting against this established tax policy, the European Court of Justice surprisingly held in European Commission v. United Kingdom of Great Britain and Northern Ireland2 that a national discount on Value-Added Tax (“VAT”) for energy-saving materials flouted European Union rules by misapplying two exemptions. 3

The defendant, the United Kingdom, offered a reduced rate of five percent VAT on solar panels, water turbines, and wind turbines, among other home improvements, to all British homeowners who sought installation to improve their properties.4 Based on the holding in this case, the British government must comply with European Union law by returning these clean energy alternatives to the full twenty percent VAT or face severe fines for noncompliance.5

Under external pressure, the United Kingdom has caved to the European Court of Justice’s holding and essentially surrendered
sovereignty in national legislative interpretation to the European Union, where the European Union has no place to determine interpretation of the law. This Comment argues that the European Union has overstepped its boundaries as a supra-national entity when it sets the definition of “social policy” that is solely in the interpretive domain of a member state at the national level. In Part I, the discrepancies between United Kingdom legislation and European Union law are contrasted and given context. Part II discusses the exemptions analyzed in the European Court of Justice holding and their application to British law. Finally, Part III, exposes the social damage caused by higher costs to clean energy and the encroachment of national sovereignty by the European Union.

I. THE CONTEXT OF EUROPEAN AND UNITED KINGDOM LAW

Prior to litigation in September 2011, the United Kingdom was given formal notice that a reduced VAT on clean-energy goods and services was contrary to European Union law.6 The United Kingdom agreed in November 2011 only to the reduced rate for goods and services for the charitable purposes exemption, but would apply full VAT rates to energy-saving materials in 2013.7 The European Commission sent another notice of noncompliance to the United Kingdom in June 2012, but the United Kingdom reiterated in August that it complied with European Union law.8 The Commission was unsatisfied with the United Kingdom’s answer and commenced legal action. 9

INTRODUCTION

In the wake of the U.S. Supreme Court ruling in Obergefell v. Hodges,1 in which the Court held that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the Constitution, promoting the rights of lesbian, gay, bisexual, and transgender (“LGBT”) individuals and building a more accepting society towards these non-conventional sexual orientations seem to have become a plausible goal of the U.S. society. Many LGBT rights activists argue that sexual orientation is an immutable characteristic and not a preference, therefore our society should create a climate where the LGBT individuals “can live openly without discrimination and enjoy equal rights, personal autonomy, and freedom of expression and association.”2 Exalting the idea of equal protection, personal autonomy, and right of privacy led the public to advocate for the LGBT rights.

However, such a consensus undoubtedly affect important aspects of everyone else’s lives. In particular, the freedom of parents to freely control sex education for their children, cultivate important values in their lives, and make medical decisions for them have been slowly but surely infringed upon. 3 Moreover, our rights to free speech and free exercise of religion under the First Amendment have been also infringed upon as we are often compelled to refrain from making religiously motivated statements especially in a professional work environment. 4 Respecting and promoting LGBT rights is one thing, but being forced to accommodate them in a way that denies our own fundamental rights in relation to our very own families and professional lives is another.

One good example, which is the main topic of this Note, is how our society criticizes any Sexual Orientation Change Efforts (“SOCE”) put forth even within the boundaries of our own family life. The term, SOCE is defined in many State statutes as “the practice of seeking to change a person’s sexual orientation,” including “efforts to reduce or eliminate sexual or romantic attractions or feelings toward a person of the same gender.” 5 It is widely referred to as a “conversion” or “reparative” therapy in which mental healthcare practitioners use different types of methods to help LGBT individuals convert back to a life of heterosexuality.6

The methods used in SOCE include behavioral techniques, cognitive behavioral techniques, and psychoanalytic techniques, as well as other medical, religious, and spiritual approaches.7 While some are known to employ extreme and physically intrusive tactics, such as hormone therapy, electric shock, and nausea-inducing drugs, the most common practice used by healthcare practitioners today is the “talk therapy,” which does not involve any physical intrusions on patients.8 Most of the contemporary SOCE therapies only involves verbal communication that discusses “traditional gender-appropriate behaviors” and “biblical perspectives” on sexual orientations.9

However, such a consensus undoubtedly affect important aspects of everyone else’s lives. In particular, the freedom of parents to freely control sex education for their children, cultivate important values in their lives, and make medical decisions for them have been slowly but surely infringed upon. 3 Moreover, our rights to free speech and free exercise of religion under the First Amendment have been also infringed upon as we are often compelled to refrain from making religiously motivated statements especially in a professional work environment. 4 Respecting and promoting LGBT rights is one thing, but being forced to accommodate them in a way that denies our own fundamental rights in relation to our very own families and professional lives is another.

A step to legally resist SOCE was made by several States when they completely prohibited their mental healthcare practitioners from administering SOCE therapies to minors regardless of whether the minor and his or her parents consented to the therapy.10 Furthermore, even President Obama has also recently called for banning medical practitioners from administering SOCE therapies on LGBT youth. 11 Although these States’ ban on SOCE are enacted to regulate licensed healthcare providers, on a deep level, the most affected stakeholders are in fact private individuals such as parents who are consequently deprived of their fundamental rights to make important decisions pertaining to raising their children according to their own family and religious values.

One good example, which is the main topic of this Note, is how our society criticizes any Sexual Orientation Change Efforts (“SOCE”) put forth even within the boundaries of our own family life. The term, SOCE is defined in many State statutes as “the practice of seeking to change a person’s sexual orientation,” including “efforts to reduce or eliminate sexual or romantic attractions or feelings toward a person of the same gender.” 5 It is widely referred to as a “conversion” or “reparative” therapy in which mental healthcare practitioners use different types of methods to help LGBT individuals convert back to a life of heterosexuality.6

INTRODUCTION

The purpose of this Note is to highlight the importance of state sovereignty in the midst of legal wars being waged by non-state actors. This Note begins by briefly explaining the concept of sovereignty as it relates to the maintenance of a legitimate global political system that respects the cultural differences and internal affairs of all states. Next, this Note provides brief explanations of universal (and extraterritorial) jurisdiction and the use of law to fight political battles with opponents, which this Note refers to as “Lawfare.” Finally, this Note lists the three gravest dangers that could result in the foreseeable future if the use of universal jurisdiction and Lawfare continues through nongovernmental organization (“NGO”) and non-state actor manipulation of the international legal system—namely the International Criminal Court (“ICC”). In order to give current relevance to the suppositions posited, this Note uses the sovereign State of Israel as the prototype to clearly display the use of such legal avenues, and how that poses a serious danger for other sovereign states. Although this Note does not devote much of its discussion to determining the morality of either side in the political issues surrounding Israel, it is important for the reader to understand the factual implications of Israel’s loss of sovereign decision-making. To begin the discussion, a brief overview of Israel’s modern history and some of the current issues causing conflict in the region is presented.

In 1933, the Conference of American States drafted the Montevideo Convention of the Rights and Duties of States that broadly listed the elements required for statehood recognition: a permanent population, a defined territory, a government, and the capacity to conduct international relations.3 Although methods of obtaining official state recognition are somewhat contested, it is widely accepted that once a state obtains the four elements above and is recognized by other states, then that state begins to enjoy the rights of political autonomy and sovereignty—the ability to determine internal affairs without fear that outside forces will interfere.4 That is, state sovereignty inherently resides with “the people [of that state] and is exercised through representative bodies . . . . [It] is essentially the power to make laws . . . .[T]o have sovereign power is to be beyond the power of others to interfere.”5 Again, under international law, “[e]ven where individual [and civilian] rights are concerned . . . states are responsible for respecting, protecting, and fulfilling the rights of their citizens, and if they don’t, they are answerable as states.” 6

Unlike legitimate states, which automatically enjoy rights and obligations, international organizations, individuals, NGOs, and others derive their rights and duties in international law directly from different instruments, such as an organizational document or charter.7 After World War II, the United Nations (the “UN”), through its member states, has continued to develop international law, determining the rights and obligations of the “state” (such as the duty to protect civilians during times of war)8 in order to prevent the type of conflicts seen in World War I and World War II, despite its heavy emphasis on maintaining state sovereignty.9 Recently, however, the laws prohibiting state overreach and aggression have failed to do the same with respect to the rising influence of NGOs and non-state actors who use the technological advancements of twentieth century communication to bring political differences with sovereign states to the forefront of international legal discourse.10 Moreover, although most states have a national court system and de facto jurisdiction to try its own nationals, NGOs have championed the concept of “universal jurisdiction” in efforts to prosecute state officials with whom NGO officers and affiliates disagree.11 States, which are obligated to pursue legal avenues to resolve disputes, recently have begun to use the ability of NGOs to bring claims in international courts as a method of committing warfare of a political and legal nature (i.e., Lawfare) against their political adversaries.12 To begin this discussion, it is important to retrace the historical roots of Israel and its modern-day statehood.

I. MODERN HISTORY OF ISRAEL

On July 24, 1922, the Council of the League of Nations passed the Mandate of Palestine (the “Mandate”), which codified the international community’s stance on the future of Palestine.13 The Mandate stated that Britain and the allied powers would be responsible for “the establishment in Palestine of a national home for the Jewish people . . . [and] that nothing should be done which might prejudice the civil and religious rights of existing non-Jewish communities in Palestine.”14 In its twenty-eight articles, the Mandate went on to list the steps that would be taken while Britain (the “Mandatory” or official state authority over Palestine) controlled the land.15 Among these provisions the most important was:

The purpose of the Mandate was to ensure respect for all people living in Palestine regardless of religion, race, or nationality. 17 It further sought to create a single government in Palestine (referred to as “the Government of Palestine”) that would continue the maintenance of the communities established in Palestine once the Mandate expired and Britain relinquished control.18 The Mandate, therefore, sought to ensure that a single government for the entire area was created that would respect the rights of all peoples living in the territory, and would include a “national home for the Jewish people.”19 Once the land was turned over to a legitimate governing authority, it would be recognized as the representative government of the land of Palestine.20 Shortly thereafter, the Montevideo Convention established that a representative government was one of the four elements necessary in order for the recognition of legitimate “statehood” under international law.21

† B.A. 2012, Georgia State University; J.D. 2015, Regent University School of Law.
1 HENRY KISSINGER , DOES AMERICA NEED A FOREIGN P OLICY? 275 (2001).
2 EDMUND BURKE , THE BEST OF BURKE 363 (Peter J. Stanlis ed., 1963).
3 Montevideo Convention on the Rights and Duties of States art. 1, Dec. 26, 1933, 49 Stat. 30971; 165 L.N.T.S. 19 [hereinafter Montevideo Convention].
4 See Oppenheim’s International Law (Robert Jennings & Arthur Watts eds., Thomson Reuters/Foundation Press 2010) in THE INTERNATIONAL LEGAL SYSTEM 208, 208–209 (Robert C. Clark et al eds., 6th ed. 2010) [hereinafter INTERNATIONAL LEGAL SYSTEM]; see also Aaron Kreuter, Note, Self-Determination, Sovereignty, and the Failure of States: Somaliland and the Case for Justified Secession, 19 M INN. J. INT’ L L. 363, 365–66 (2010).
5 Sovereignty, CORNELL U.: LEGAL INFO. INST., https://www.law.cornell.edu/wex/sovereignty (last visited Mar. 25, 2016).
6 INTERNATIONAL LEGAL SYSTEM, supra note 4, at 500.
7 See Grant L. Willis, Security Council Targeted Sanctions, Due Process and the 1267 Ombudsperson, 42 GEO. J. INT’L L. 673, 706 (2011).
8 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts art. 13, adopted June 8, 1977, 1125 U.N.T.S. 609, 1991 A.T.S. 29, 16 ILM 1391 (entered into force Dec. 7, 1978)[hereinafter Protocol II]. Protocol II also contains a provision related to state sovereignty. Id. at art. 3 (demonstrating that the Geneva Convention drafters and state representatives feared that sovereignty of nations might be violated by allowing a legal justification for intervention in matters that are internal matters of a sovereign state).
9 See Press Release, General Assembly, Lessons of Second World War Must Continue to Guide United Nations Work, General Assembly Told During Meeting Marking Seventieth Anniversary, U.N. Press Release GA/11641 (May 5, 2015),
http://www.un.org/press/en/2015/ga11641.doc.htm (explaining that the purpose of the United Nations is to prevent the scourge of war for future generations); Press Release, General Assembly, Questions Related to State Sovereignty and Role of Security Council in International Peacekeeping Addressed During Assembly Discussion, U.N. Press GA/9629 (Oct. 7, 1999), http://www.un.org/press/en/1999/19991007.ga9629.doc.html (explaining that respect for state sovereignty is a building block of the United Nations); The Foundation of International Human Rights Law, UNITED NATIONS, http://www.un.org/en/sections/universal-declaration/foundation-international-human-rights-law/index.html (last visited Mar. 25, 2016).
10 See, e.g., KISSINGER , supra note 1, at 280–81 (noting that Amnesty International supported a complaint against certain NATO officials for actions in the Balkans); see also Anne Aly, The Media and International Relations, in ENCOUNTERS WITH WORLD AFFAIRS: AN INTRODUCTION TO INTERNATIONAL RELATIONS 348, 348 (Emilian Kavalski ed., 2015).
11 See ANNE HERZBERG , NGO MONITOR, NGO “LAWFARE”: EXPLOITATION OF COURTS IN THE ARAB -ISRAELI CONFLICT 9–11 (2d ed. 2010).
12 See id. at 11.
13 See Mandate for Palestine, League of Nations Doc. C529M.314 1922 VI (1922),
http://avalon.law.yale.edu/20th_century/palmanda.asp; Richard Wilner, Nationalist Movements and the Middle East Peace Process: Exercises in Self-Determination, 1 U.C. DAVIS J. INT’L L. & POL’Y 297, 320, 324 (1995). The Mandate was—and is—considered valid
international law. See id. at 320.
14 Mandate for Palestine, supra note 13, pmbl.
15 See generally id. arts. 1–28.
16 Id. at art. 28.
17 See Gal Asael, The Law in the Service of Terror Victims; Can the Palestinian Authority be Sued in Israeli Civilian Courts for Damages Caused by Its Involvement in Terror Acts During the Second Intifada?, THE ARMY LAW ., July 2008, at 9; see also Mandate for Palestine, supra note 13, art. 15.
18 See Mandate for Palestine, supra note 13, art. 28.
19 Id. pmbl.
20 Id. art. 2.
21 See Montevideo Convention, supra note 3, art 1 (highlighting the importance of the
provisions in the British Mandate requiring that the land in Palestine be turned over to a
legitimate government of Palestine).

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.