ABSTRACT

This Article seeks to analyze the use of American due process and privacy frameworks by the Indian Supreme Court in conceptualizing the right to privacy as an un-enumerated right in Chapter III (Fundamental Rights) of the Indian Constitution. The Article principally examines judicial developments in three seminal cases on privacy decided before the incorporation of substantive and procedural due process in the toolkit of the Indian judiciary. In doing so, it seeks to make a contribution towards understanding how Indian courts partake of transplantation, translation and migration of foreign jurisprudence from a comparative perspective. A few conclusions reached through the analysis are as follows: a) the three seminal Indian cases tasked with finding a right to privacy in the Indian Constitution selectively deployed American due process and privacy jurisprudence to push against the narrow conception of fundamental rights prevalent at the time; as a corollary; b) in attempting to develop privacy jurisprudence with the assistance of American cases, these cases contributed to the expansion of judicial review and total incorporation of substantive and procedural due process in India, subverting the original intent of the framers of the Indian Constitution; c) even after due process came to be accepted as a pillar of judicial review in India, the evolution of the right to privacy continued to draw on developments in American cases on privacy, and more qualitatively; and d) the use of American jurisprudence by the Indian Supreme Court to inform and develop its own jurisprudence suffered from methodological inconsistencies and broader incoherence, adversely affecting the doctrinal development of a right to privacy.

INTRODUCTION

Privacy is a catch-all concept that takes within its sweep different iterations. Couched in notions of liberty and dignity—the famed placeholders of a liberal constitutional democracy—it is amorphous and all pervasive: its absence is intuitively felt across a range of human experiences. It is so keenly implied in the basic guarantees provided to citizens of liberal constitutional democracies that one can be forgiven to wonder why the existence of a related right must even be the subject of inquiry. Nevertheless, such legal systems have toiled to build a solid doctrinal foundation upon which a right to privacy has come to rest. Some legal systems, like Germany, have built this right upon notions of dignity,1 whereas others, like the United States, have principally relied on the framework of liberty.2 Subsequently, the right to privacy has undergone a case-by-case substantiation.3

In the American experience, the right to privacy went from being a common law right4 to being conceived5 euphemistically in aspects of liberty,6 and then directly implied at various points (1870–1950) in the protections of the 4th Amendment against illegal searches and seizures.7 Gradually, U.S. courts would deploy the power of judicial review drawn from the due process clause and certain other interpretive techniques8 to expand the normative9 and descriptive10 scope of privacy implied in the Bill of Rights.11 The 1960s would witness a heightened period of case-bycase expansion of the right to privacy beyond the 4th Amendment, coinciding and reflecting social values that underscored the civil rights movement.12 During this period, the right to privacy would expand around issues like marriage,13 use of contraceptives both in14 and outside15 of marriage, and abortion.16 This trend ebbed and flowed, coming to the fore again at the turn of the millennium, when in rapid succession the Supreme Court moved to decriminalize homosexuality17 and assure marriage equality.18 Therefore, the doctrinal foundation and development of the right to privacy has been more or less grounded in solid domestic jurisprudence in the U.S. experience.19

In contrast, the very existence and doctrinal basis for a fundamental right to privacy in India remained the subject of much uncertainty until recently.20 After independence, between 1954 and 1975, three constitution benches21 of the Indian Supreme Court were tasked with finding a fundamental right to privacy.22 In each instance, the court was unwilling to conclude that the Indian Constitution envisaged a fundamental right to privacy;23 but in two of those cases, the court hedged against this finding, carving out limited protections under the guise of protecting personal liberty guaranteed under Article 21 of the Indian Constitution.24 Three factors primarily guided these outcomes: 1) An originalist interpretation of the Indian Constitution did not readily allow the judiciary to conclude that its drafters intended to include a fundamental right to privacy analogous to the 4th amendment in the Bill of Rights;25 2) The Indian judiciary did not have expansive powers of judicial review available to U.S. Supreme Court under the American due process doctrine, so it was hard pressed to ‘discover’ un-enumerated rights, and;26 3) These cases pitted privacy concerns against wide surveillance, and search and seizure powers of the State, which were perceived as unimpeachable in the initial years that followed independence.27

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† Manu Chaturvedi is a lawyer and academic based in New Delhi, India. His practice focuses on constitutional, civil, and commercial law, as well as social interest action concerning environmental degradation and civil liberties. He also lectures at O.P. Jindal Global Law School in Haryana, India. He has a B.A. LL.B from WBNUJS (Kolkata, India) and completed his LL.M. (Dean’s List) from U.C. Berkeley School of Law, where he specialized in Comparative and International Law. He is a 2017–18 Fulbright fellow.

1 James Q. Whitman, The Two Western Cultures of Privacy: Dignity Versus Liberty, 113 YALE L.J. 1151, 1160 (2004).

2 Id. at 1161.

3 See generally Bert-Japp Koops et al., A Typology of Privacy, 38 U. PA. J. INT’L L. 483, 484, 500–02 (2017) (spatial privacy, bodily privacy, communicational privacy, proprietary privacy, intellectual privacy).

4 Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 193, 198 (1890).

5 See Prince v. Massachusetts, 321 United States 158, 163–64 (1944) (dealing with parental rights infringed by a state statute); Skinner v. Oklahoma, 316 U.S. 535, 537–38 (1942) (dealing with forced sterilization of criminally convicted).

6 Liberty in fact lies at the base of the doctrinal foundation of the right to privacy in America. Berger v. New York, 388 U.S. 41, 53 (1967); Katz v. United States, 389 U.S. 347, 351 (1967).

7 See Wolf v. Colorado, 338 U.S. 25, 28 (1949); Olmstead v. United States, 277 U.S. 438, 466 (1928); Boyd v. United States, 116 U.S. 616, 634–35 (1886).

8 See Griswold v. Connecticut, 381 U.S. 479, 484–85 (1965) (discussing the penumbral right to privacy underlying the constitutional guarantee).

9 When privacy sub-serves values upon which other basic guarantees (like liberty and freedom) are founded. See Jeffrey M. Skopek, Reasonable Expectations of Anonymity, 101 VA. L. REV. 691, 699–700 (2015).

10 When privacy itself postulates a bundle of entitlements and interests. See id. at 701–02.

11 This was partly due to the fact that the protection of fundamental rights, including liberty, is ensured in the U.S. via the constitutional guarantee of due process. See U.S. CONST. amend. XIV, § 1.

12 See Griswold, 381 U.S. at 484–85.

13 Id. at 485–86.

14 Id.

15 Eisenstadt v. Baird, 405 U.S. 438, 453 (1972).

16 Roe v. Wade, 410 U.S. 113, 153 (1973).

17 Lawrence v. Texas, 539 U.S. 558, 578 (2003); Romer v. Evans, 517 U.S. 620, 633–35 (1996).

18 Obergefell v. Hodges, 135 S. Ct. 2584, 2602–03 (2015); United States v. Windsor, 570 U.S. 744, 775 (2013).

19 See Lawrence, 539 U.S. at 598 (Scalia, J., dissenting) (critiquing reliance on foreign developments by the majority as a source of decriminalization of homosexuality).

20 Puttaswamy v. India, AIR 2017 SC 4161, ¶ 96.

21 Rarely constituted benches of five or more judges authorized to adjudicate issues involving interpretation of the Indian Constitution. INDIA CONST. art. 145, § 3.

22 Govind v. Madhya Pradesh, AIR 1975 SC 1378, ¶ 31–35 (India); Singh v. Uttar Pradesh, AIR 1963 SC 1295, ¶¶ 40–41 (India); Sharma v. Satish Chandra, AIR 1954 SC 300, ¶ 4 (Del.) (India) (seminal cases).

23 See Singh, AIR 1963 ¶¶ 40–42.

24 See Singh, AIR 1963 ¶¶ 40–42; Govind, AIR 1975 ¶¶ 34–35.

25 See Govind, AIR 1975 ¶¶ 34–35. Indeed, one would be hard pressed to find a provision which implies a right to privacy, say, as obviously as the American 4th Amendment.

26 See Marguerite J. Fisher, The Supreme Court of India and Judicial Review, 9 SYRACUSE L. REV. 30, 35 (1957).

27 See generally Manoj Mate, The Origins of Due Process in India: The Role of Borrowing in Personal Liberty and Preventive Detention Cases, 28 BERKELEY J. INT’L L. 216, 236 (2010) [hereinafter Mate]. The political climate was dominated by fear and State paternalism stemming from Gandhi’s assassination, fear of national disintegration, and proliferation of communal riots and/or secessionist movements. See id. at 220.

North Korea has long been an international concern, not only for the United States, but also for its allies in the Pacific region.1 These concerns have been elevated in recent years with North Korea’s intentions to become a nuclear power and subsequent rounds of testing.2 Most of the recent international focus has been spent attempting to curb North Korea’s nuclear ambitions, yet, there has been little response addressing its human rights issues and the generations-long atrocities against the North Korean people by its rulers. 3 The extent of the atrocities were exposed in 2014, when the United Nations Human Rights Council (UNHRC) released a report outlining the lack of human rights in North Korea and noting that “crimes against humanity” (CAH) had been committed.4 The same evidence indicates North Korean leadership has also committed genocidal and democidal acts. Democide, a fairly new term, is “[t]he murder of any person or people by a government, including genocide, politicide, and mass murder.” 5 Given the historical and current treatment of North Korean citizens by its government, this phrase would adequately define those atrocities. 6 Yet, does it matter if North Korean leadership is committing genocide, democide, or “crimes against humanity,” and if it does, what should be the international response under current international law? No matter what the international response, there are no good options. The international community could choose to do nothing and maintain the status quo, or it could rely on international law to properly address the crimes against humanity (CAH) committed by North Korean leadership. The international community could also use military action to end the crimes against humanity. All options have serious flaws.

The first two parts of this Article will present some brief background information about North Korea, some of the findings of the UNHRC’s Commission of inquiry on human rights in the Democratic People’s Republic of Korea (“the Commission”), how those findings fit into the definitions of genocide, democide, and CAH, and why North Korean leadership should be charged with CAH. However, charging is only part of the equation. The third part of this Article will explore why relying on international law to end the North Korean CAH, particularly relying on the International Criminal Court (ICC) and Universal Jurisdiction (UJ), are not viable options. Finally, this Article will discuss the propriety of military action: why state sovereignty is not the issue it used to be, the impact the “Responsibility to Protect” will have on state sovereignty, and how inaction by the United Nations (UN) Security Council to address CAH around the world has weakened its legitimacy. Ultimately, the facts presented will show that rapidly changing international law has eroded the notion of the sanctity of state sovereignty, and because the United Nations Security Council (UNSC) has failed to protect the citizens of North Korea from its own leadership committing crimes against humanity, international military action is the only option to end the long-standing atrocities.

I. NORTH KOREA AND THE COMMISSION’S REPORT

The most reclusive, secretive country on Earth, North Korea is a mystery to most people.7 This can most likely be attributed to the policy established by the country’s first leader, Kim il-Sung, who “created the country’s policy of juche or self-reliance,” resulting in North Korea cutting itself off from the rest of the world politically, economically, and relying on its own military for protection.8 Yet, juche is now used as an “ideological weapon to justify its dictatorship and hereditary power succession plan . . . a means to justify its closed-door system externally.”9 For nearly 70 years, its Supreme Leaders, Kim il-Sung, his son, Kim Jung-il, and now Kim Jung Un, Kim il-Sung’s grandson,10 have abused, manipulated, and suppressed the human rights of the North Korean people under the principle of juche.11 Little good comes from its political situation, and for the most part, the world only hears about North Korea when it is threatening to obtain and/or use nuclear weapons.

It is estimated that North Korea has a population of just over 25 million people.12 Despite spending an estimated $1.3 billion on its missile program in 2012,13 North Korea has one of the world’s least open economies, with a gross domestic product of $1800 per capita, and has an estimated 25.6% unemployment rate.14 North Korea spends about one third of its income on military spending and has 1.2 million military members, twice as many as South Korea.15 A portion of North Korea’s citizens do not even have electricity in their homes, and those that do have electricity only receive it “a few hours per day.”16 There is no independent media, and the state relies on international aid to feed its population.17 The UN World Food Programme (WFP) estimates that more than 70% of the North Korean population is food insecure, with only about a fifth of its land being arable, and that children in WFP nurseries showed a 25% stunting prevalence due to the lack of food consumption.18 “In 2015, the U.N. [WFP] asked foreign donors for . . . $111 million in contributions.”19 However, donors are reluctant to help North Korea because of restrictions on “humanitarian workers and international fears over its nuclear ambitions.”20 There is no religious freedom in North Korea, nor is there an independent judicial system.21 North Korea is considered to be the third most corrupt country on earth.22

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† Charlton J. Meginley is a Judge Advocate for the United States Air Force. He received his undergraduate degree in Criminal Justice from the University of Louisiana at Monroe, and his Juris Doctor from Louisiana State University. He currently serves as the Chief Senior Defense Counsel for the Air Force’s Central Circuit. Please note: the opinions, conclusions, and recommendations expressed or implied within this Article are solely those of the author and do not necessarily represent the views of the United States Air Force, the Department of Defense, or any other US government agency.
1 See Rex Tillerson, Secretary of State of the U.S., Remarks at the United Nations Security Council Ministerial Session on D.P.R.K., (Apr. 28, 2017) (transcript available at https://www.state.gov/secretary/remarks/2017/04/270544.html).
2 North Korea’s Push over the Years to Become a Nuclear Power, L.A. T IMES (Apr. 14, 2017), http://www.latimes.com/world/la-fg-north-korea-nuclear-timeline-20170414-htmlstory.html.
3 Olivia Enos, What the United States Can Do to Address North Korea’s Human Rights Crisis, THE FEDERALIST (Apr. 17, 2017), http://thefederalist.com/2017/04/17/united-states-can-address-north-koreas-human-rights-crisis/.
4 See U.N. Human Rights Council on Its Twenty-Fifth Session, Report of the Detailed Findings of the Commission of Inquiry on Human Rights in the Democratic People’s Republic of Korea, U.N. Doc. A/HRC/25/CRP.1 (2014) [hereinafter U.N. Human Rights Council].
5 R.J. RUMMEL, D EATH BY G OVERNMENT Ch. 2 (Transaction Publishers, 1994).
6 See id.; see also Yael Stein and Elihu D. Ritcher, Suspected Mass Killings, GENOCIDE PREVENTION NOW, www.genocidepreventionnow.org (last visited Oct. 4, 2017).
7 See Charlotte Alfred, How North Korea Became So Isolated, HUFF POST (Oct. 17, 2014, 5:42 PM ), http://www.huffingtonpost.com/2014/10/17/north-korea-history-isolation_n_5991000.html.
8 15 Fascinating Facts about Mysterious North Korea, USA TODAY (July 17, 2017 10:17 AM ), https://www.usatoday.com/story/news/world/2017/03/17/fascinating-facts-north-korea/99296938/.
9 See Columbia University, Juche Ideology, http://www2.law.columbia.edu/course_00S_L9436_001-North%20Korea%20materials/3.html (last visited Sept. 17, 2017); Dae-Kyu Yoon, The Constitution of North Korea: Its Changes and Implications, 27 FORDHAM INT’L L. J. 1289, 1291 (2004).
10 See Central Intelligence Agency, The World Factbook: North Korea, https://www.cia.gov/library/publications/the-world-factbook/geos/kn.html (last updated Sept. 6, 2017).
11 See 15 Fascinating Facts about Mysterious North Korea, supra note 8.
12 Central Intelligence Agency, supra note 10.
13 Ramy Inocencio, North Korea’s Rocket Launches Cost $1.3 Billion, CNN (Dec. 12, 2012), http://www.cnn.com/2012/12/12/business/north-korea-rocket-cost/index.html.
14 Central Intelligence Agency, supra note 10. See generally North Korea’s economic growth climbs to 17-year high in 2016 despite sanctions targeting nuclear program, CNBC (July 20, 2017 11:26 PM), https://www.cnbc.com/2017/07/20/north-koreas-economic-growth-climbs-to-17-year-high-in-2016-despite-sanctions-targeting-nuclear-program.html (noting that the North Korean economy is growing, even in light of the sanctions).
15 20 Facts about North Korea, USA TODAY (Apr. 13, 2013), http://www.usatoday.com/story/news/world/2013/04/13/north-korea-factoids/2078831/.
16 See id.; Rick Newman, Here’s How Lousy Life is in North Korea, U.S. NEWS (Apr. 12, 2013), https://www.usnews.com/news/blogs/rick-newman/2013/04/12/heres-how-lousy-life-is-in-north-korea.
17 20 Facts about North Korea, supra note 15.
18 Democratic People’s Republic of Korea, WORLD FOOD PROGRAMME, http://www.wfp.org/countries/korea-democratic-peoples-republic (last visited Sept. 18, 2017); see also DPRK Country Brief, WORLD FOOD PROGRAMME, http://documents.wfp.org/stellent/groups/public/documents/ep/wfp276263.pdf?_ga=2.143296828.840591394.1505785676-1256538179.1505785676 (last visited Sept. 18, 2017). According to the WFP, “81 percent of DPRK’s population do not have acceptable diversity in their diet. People consume 25 percent less protein and 30 percent less fat than required for a healthy life, according to international standards. One in three children under five years of age, and almost half of the children between 12 and 23 months of age, are anemic.” Id.
19 Olivia Enos & Bruce Klinger, Next Steps for Human Rights in North Korea, HERITAGE FOUND. (Jan. 12, 2016), http://www.heritage.org/asia/report/next-steps-human-rights-north-korea.
20 Magdalena Mis, U.N. Calls for $111 Million for Crucial Aid for North Korea, REUTERS (Apr. 9, 2015), http://www.reuters.com/article/us-northkorea-aid-un-idUSKBN0N01YK20150409.
21 20 Facts about North Korea, supra note 15.
22 See Corruption Perceptions Index 2016, TRANSPARENCY INT’L, https://www.transparency.org/news/feature/corruption_perceptions_index_2016 (last visited Sept. 20, 2017) (noting Somalia as the most corrupt nation, followed by South Sudan); Aza Wee Sile, These are the World’s Most Corrupt Countries, CNBC (Jan. 24, 2017, 11:07 PM ), https://www.cnbc.com/2017/01/24/these-are-the-worlds-most-corrupt-countries.html.

INTRODUCTION

China is not known for a strong compliance with international law.1 This is particularly true in regard to international laws regarding human rights. 2 In at least one area, however, China is making impressive gains. In 2012, China passed a newly amended version of its Criminal Procedure Law. 3 These amendments included a brand new chapter on the treatment of juveniles.4 The chapter was remarkable for just how closely its reforms line up with international laws on children’s rights and juvenile justice. Even more notably, in the years since the passage of the bill, China appears to be making tremendous strides towards applying these legal reforms in practice — not only enforcing these standards, but proudly modeling them as “best practices.”5

Why is such progressive legal reform occurring in the field of juvenile justice, in a country which is often considered resistant at best towards implementing human rights reforms? 6 Why does China appear to be complying so well with international standards on human rights in one area of law, when it has not in many others?7

Understanding how this process of reform has occurred requires looking at both the social and political pressures that motivated the reform efforts, as well as the normative process through which they occurred. This process has been heavily influenced by an openness to legal experimentation and to the role of a variety of actors, including non-state actors, in introducing new concepts and models of dealing with juvenile crime. The juvenile justice system therefore provides a particularly interesting case study through which to explore modes by which the China implements legal reform.

I. THE 2012 CRIMINAL PROCEDURE LAW AND INTERNATIONAL LAW

On March 14, 2012, the Chinese People’s Congress adopted an amended version of the Chinese Criminal Procedure Law, which went into effect January 1, 2013. 8 Unlike previous versions of the Criminal Procedure Law, the amended version of the law has an entirely new section pertaining to juvenile defendants and how juveniles should be treated within the criminal justice system.9 The chapter is remarkable for how well the requirements outlined align with the requirements on juvenile justice as prescribed in international law.

The chapter includes eleven articles, each delineating specific requirements for how juveniles should be handled in the criminal justice system.10 Nearly all theories, language, and specific requirements set out in the chapter have been previously codified in international laws and guidelines on juvenile justice.11

The chapter sets out a theory of juvenile justice that promotes rehabilitation and reintegration with society. Article 1 of the amended Criminal Procedure Law (CPL) explains that officials should “[i]mplement the directive of education, reform, and rescue for juveniles committing crimes, and continue the principle of education first with punishment as a supplement.”12 This aligns with the theories expressed in both the Convention on the Rights of the Child (CRC) and International Covenant on Civil and Political Rights (ICCPR) that the underlying theory of juvenile justice should be rehabilitative, rather than punitive. 13 The new chapter then proceeds to set out specific requirements regarding the treatment of juveniles, nearly all of which are required by international instruments such as the CRC, ICCPR, or U.N. guidelines.

The new chapter requires, for example, that all juveniles be given access to legal counsel, a key procedural right expressed by both the CRC and ICCPR.14 While this was previously set out in Chinese law, the effectiveness of this requirement was limited. 15 The new law now explicitly places the onus on public officials such as the courts, procuratorate, or other public security officials to ensure that juveniles are, in fact, represented by counsel in criminal cases.16 It also requires that juveniles should be given special treatment throughout the criminal justice process to protect their unique vulnerabilities. For example, the law suggests that officials working with children should be specially trained to handle such cases17 and that juveniles who are detained must be separated from adult offenders.18 The law also requires that all court records must be sealed in juvenile cases to protect the privacy of the juvenile defendant.19

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† The author is a Staff Attorney at Children’s Rights in New York City. Prior to this she was a Visiting Fellow at the Center for Comparative and Public Law at the University of Hong Kong. My sincere thanks to the Salzburg Cutler Law Fellows Program which helped to spark and critique an initial conception of this paper, to Professor Katherine Franke and my brilliant classmates in her research and writing seminar, who reviewed early drafts and improved my writing tremendously, and to HKU’s Center for Comparative and Public Law for allowing me the opportunity and resources to finalize this as a Visiting Fellow.
1 Jacques deLisle, China’s Approach to International Law: A Historical Perspective, 94 AM . SOC’Y INT’L L. PROC . 267, 267 (2000).
2 See Camila Ruz, Human rights: What Is China Accused of?, BBC NEWS (Oct. 21, 2015), http://www.bbc.com/news?magazine-34592336.
3 Wendy Zeldin, China: Amendment of Criminal Procedure Law, LIBR. CONGRESS: GLOBAL LEGAL MONITOR (Apr. 9, 2012), http://www.loc.gov/law/foreign-news/article/china-amendment-of-criminal-procedure-law/.
4 Id.
5 See John Kamm, Trying Juveniles, N.Y. TIMES (Nov. 29, 2012), http://www.nytimes.com/2012/11/30/opinion/global/trying-juveniles.html.
6 THOMAS LUM, CONG. RESEARCH SERV., RL34729, HUMAN RIGHTS IN CHINA AND U.S. POLICY 1–3 (2011).
7 Kamm, supra note 5
8 Zeldin, supra note 3.
9 Id.
10 Zhonghua Renmin Gongheguo Xingshi Susong Fa (中华人民共和国刑事诉讼法) [Criminal Procedure Law of the People’s Republic of China] (promulgated by the Nat’l People’s Cong., Mar. 14, 2012, effective Jan. 1, 2013) pt. 5, ch. 1, translated in UN TREATY BODY DATABASE , http://tbinternet.ohchr.org/Treaties/CAT/Shared%20Documents/CHN/INT_CAT_ADR_CHN _20050_E.doc (last visited Mar. 3, 2017) [hereinafter Criminal Procedure Law].
11 There are eight documents which set out the majority of the international laws and standards on juvenile justice. Two of these are binding international treaties. These are the Convention on the Rights of the Child (CRC) and the International Covenant on Civil and Political Rights (ICCPR). Convention on the Rights of the Child, adopted Nov. 20, 1989, 1577 U.N.T.S. 3; International Covenant on Civil and Political Rights, adopted Dec. 16, 1966, 999 U.N.T.S. 171. China has signed both of these documents and ratified the CRC. TREATY SECTION, OFFICE OF LEGAL AFFAIRS, MULTILATERAL TREATIES DEPOSITED WITH THE SECRETARY-GENERAL, at 204, 389, U.N. Sales No. E.09.V.3 (2009). There are also five relevant United Nations rules and guidelines that provide countries with further standards on developing their juvenile justice systems. See High Comm’r for Human Rights, Rep. of the High Commissioner for Human Rights on the Protection of Human Rights of Juveniles Deprived of Their Liberty, ¶ 5, U.N. Doc. A/HRC/21/26 (Aug. 3, 2012) (collecting the five sets of rules and guidelines). Although these guidelines are not binding, they can be seen as interacting with, and sometimes clarifying, the rights described in the CRC and ICCPR. Additionally, the Committee on the Rights of the Child, the body charged with monitoring compliance with the Convention on the Rights of the Child (CRC), has issued a variety of general comments, which provide greater clarity on how the Convention on the Rights of the Child should be interpreted. In particular, General Comment No. 10 provides on how to interpret the CRC’s requirements on juvenile justice. Comm. on the Rights of the Child, General Comment No. 10 (2007): Children’s Rights in Juvenile Justice, ¶ 4, CRC/C/GC/10 (Apr. 25, 2007) [hereinafter General Comment No. 10].
12 Criminal Procedure Law, supra note 10, art. 266.
13 The Convention on the Rights of the Child (CRC) states that juveniles accused of violating criminal law should be treated in a way that promotes the child’s reintegration and productive role in society, as well as promoting “the child’s sense of dignity and worth.” Convention on the Rights of the Child, supra note 11, art. 40(1). The ICCPR requires that states should “take account of . . . the desirability of promoting [the] rehabilitation” of children in conflict with the law. International Covenant on Civil and Political Rights, supra note 11, art. 14(4). General Comment No. 10 says “[t]his principle reflects the fundamental human right . . . in article 1 of [the Universal Declaration of Human Rights].” General Comment No. 10, supra note 11, ¶ 13.
14 Article 267 of the Criminal Procedure Law states “[w]here a minor criminal suspect or defendant has not entrusted a defender, the people’s court, people’s procuratorate or public security organ concerned shall notify a legal aid agency to assign a lawyer as the defender of the minor.” Criminal Procedure Law, supra note 10, art. 276. The Convention on the Rights of the Child requires that “[e]very child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance,” and “to have legal or other appropriate assistance in the preparation and presentation of his or her defense.” Convention on the Rights of the Child, supra note 11, arts. 37(d), 40(2)(b)(ii). General Comment No. 10 clarifies that when interpreting “[l]egal or other appropriate assistance,” legal assistance should not be denied simply because other assistance is available. General Comment No. 10, supra note 11, ¶ 49. The right to counsel and free legal aid is also required by both the ICCPR and the Beijing Rules. International Convention on Civil and Political Rights, supra note 11, art. 14(3)(d); G.A. Res. 40/33, annex, United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules), rs. 7.1, 15.1 (Nov. 29, 1985) [hereinafter Beijing Rules]. Although international law imposes no direct duty on any specific actors to ensure a juvenile’s access to counsel, best practice guides have recommended that legislation or guidelines for police or prosecutors “should impose a duty on [them] . . . to assist the child in obtaining legal [assistance].” CAROLYN HAMILTON, UNICEF, GUIDANCE FOR LEGISLATIVE REFORM ON JUVENILE JUSTICE 45–46 (2011).
15 The right to counsel had actually already been specified in Chinese law in 2006. Zhonghua Renmin Gongheguo Wei Chengnian Ren Baohu Fa (中华人民共和国未成年人保护法) [Law of the People’s Republic of China on the Protection of Minors] (promulgated by the Standing Comm. Nat’l People’s Cong., Dec. 29, 2006, effective June 1, 2007), art. 51, translated in Law of the People’s Republic of China on the Protection of Minors (2006 Revision) [Revised], PKULAW.CN (last visited Mar. 4, 2017) [hereinafter Law on the Protection of Minors]. That law, however, stated that should a minor be in need of legal aid, a legal aid institution should provide it to him. Id. The burden therefore lay on the legal aid institutions (who are themselves a relatively new and problematic institution in China and who often have little power in the system) and put no direct burden on any of the actual key players in the criminal process. Legal Aid, CONG.-EXECUTIVE COMMISSION
ON CHINA , https://www.cecc.gov/legal-aid (last visited Feb. 3, 2017).
16 Criminal Procedure Law, supra note 10, art. 267.
17 Article 266 of the Criminal Procedure Law specifies that officials working in the juvenile justice system should be “familiar with the physical and mental characteristics of minors.” Id. art. 266. This echoes language in the U.N. Guidelines that “[l]aw enforcement and other relevant personnel, of both sexes, should be trained to respond to the special needs of young persons,” G.A. Res. 45/112, annex, United Nations Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines), ¶ 58 (Dec. 14, 1990) [hereinafter Riyadh Guidelines], and that “police officers who frequently . . . deal with juveniles” should be “specially instructed and trained,” Beijing Rules, supra note 14, r. 12.1.
18 Article 269 of the Criminal Procedure Law requires that juveniles “held in custody or arrested or who are serving sentences . . . [should be held] separately from adults.” Criminal Procedure Law, supra note 10, art. 269. The CRC in Article 37(c) states that “every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so.” Convention on the Rights of the Child, supra note 11, art. 37(c); see also, e.g., International Covenant on Civil and Political Rights, supra note 11, art. 10(2)(b) (requiring that juveniles accused of crimes be kept separate from adults).
19 The Criminal Procedure Law requires that juvenile records be sealed. Criminal Procedure Law, supra note 10, art. 275. The Chinese Law on the Protection of Minors previously required that public sources such as the news or “computer network[s]” should not share information about juvenile defendants. Law on the Protection of Minors, supra note 15, art. 58. However, the amended Criminal Procedure Law now requires that all juveniles under the age of 18 who are sentenced to five years or less shall have their criminal records sealed, and only court officials will be able to access these documents. Criminal Procedure Law, supra note 10, art. 275. Such a requirement for privacy is expressed in the CRC in Article 40(2)(b)(vii), which states that a juvenile defendant has a right “[t]o have his or her privacy fully respected at all stages of the proceedings.” Convention on the Rights of the Child, supra note 11, art. 40(2)(b)(vii). This vague language has been clarified by the Committee in General Comment No. 10, explaining that “[a]ll stages of the proceedings” starts at the point of “initial contact with law enforcement” bodies and extends until either a “final decision” or “release from supervision.” General Comment No. 10, supra note 11, ¶ 64. General Comment No. 10 further clarifies that there should be some form of domestic legislation requiring trials to occur “behind closed doors” and that records should be kept “strictly confidential.” Id. at ¶¶ 64–66. The Beijing Rules similarly specify the juvenile’s “right to privacy” so as to “avoid harm being caused to her or him by undue publicity or by the process of labeling” and that “[i]n principle, no information that may lead to the identification of a juvenile offender shall be published.” Beijing Rules, supra note 14, rs. 8.1–2. “Records of juvenile offenders shall be kept strictly confidential . . . .” Id. r. 21.1.

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.

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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!”).

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

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

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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).

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† 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

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).

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† 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.