One New President, One New Patriarch, and a Generous Disregard for the Constitution:

The government of Russia and the Russian Orthodox Church (ROC)--the country\u27s predominant religious group--recently underwent back-to-back changes in each institution\u27s respective leadership. This coincidence of timing affords a unique opportunity to reassess the status of constitutional secularism and church-state relations in the Russian Federation. Following a discussion of the presidential and patriarchal elections that occurred between March 2008 and January 2009, the Article surveys recent developments in Russia as they relate to the nation\u27s constitutional obligations. In the face of this analysis, the Article argues that the government and the ROC alike continue to willfully undermine the constitutional principles of secularism, nondiscrimination, and equality through a variety of special privileges, cooperation agreements, and legislative initiatives. These practices do not merely follow but rather deepen the pattern developed under the leadership of former President Vladimir Putin. The Article concludes that as a consequence of the strengthened church-state relationship, respect for freedom of thought, conscience, and religion or belief, as well as freedom of expression will continue to wane, resulting in a further deterioration of the human rights crisis in Russia and of the foundation of Russia\u27s constitutional order

Should New Bills of Rights Address Emerging International Human Rights Norms? The Challenge of Defamation of Religion

The emerging international human rights norm of defamation of religion, an ongoing flashpoint in debates at the United Nations (UN) and elsewhere, merits the attention of all parties playing a role in the drafting of new bills of rights. This article uses the case study of defamation of religion, as an emerging norm and the current debate over a possible Australian bill of rights, to argue that a well-rounded drafting process. This drafting process should contemplate the relevancy and impact of emerging norms as a means of enhancing the process, deepening domestic understanding of rights, and ensuring an outcome instrument that is designed to address future rights-based challenges. Following introductory remarks, Part II of this article offers a brief comparative history of the offense of blasphemy to help contextualize the potential impact of defamation of religion on the international level. Part III discusses how defamation of religion became the focus of dozens of UN resolutions, assesses the challenges associated with grafting the legal concept of defamation onto the mercurial notion of religion and its potential implications for existing international law, and takes stock of the ongoing debate as it stands today. Part IV draws some preliminary conclusions concerning the possible impact of enforcing a norm against defamation of religion, and considers to what extent – if at all – Australia should incorporate a response to this emerging norm in any future bill of rights

The International Religious Freedom Act: Non-State Actors and Freedom From Sovereign Government Control

The International Religious Freedom Act (IRFA) recently underwent its most significant amendment process since being introduced in 1997. Among the major changes, sponsors of the Frank R. Wolf International Religious Freedom Act (Wolf Act) proposed adding a new framework to IRFA intended to address the phenomenon of non-state actors (NSAs) violating the right to freedom of religion or belief. The impetus for this new mandate, according to the bill’s sponsors, flowed from the realization that NSAs such as the Islamic State in Iraq and Syria (ISIS or ISIL) were wielding religious intolerance to commit “some of the most egregious religious freedom violations.” Despite its findings that violent NSAs represented an expanding force responsible for exposing a significant percentage of the global population to severe abuses of freedom of religion and belief, the Wolf Act faced an uphill battle in Congress that necessitated significant compromises to secure its passage. As a result, the final bill modified or altogether failed to enshrine certain measures originally proposed to address NSAs. In their place, the Wolf Act instituted an ambiguous statutory definition for those NSAs that would be subject to scrutiny under IRFA. Furthermore, while the new “Entity of Particular Concern” (EPC) designation for NSAs identified as engaging in “particularly severe violations of religious freedom” appeared to mirror IRFA’s existing mandatory sanctions regime for “Countries of Particular Concern,” it fell far short by triggering only a suggestion that the President “take specific actions, when practicable, to address [EPC] violations of religious freedom.” As this new chapter for IRFA enters its third year, this Article will demonstrate that the NSA-related provisions present significant challenges for the U.S. government. To begin the task of fleshing out the nature and impact of these challenges, the Article focuses on one element of IRFA’s NSA definition—namely, the requirement that an NSA be “outside the control of a sovereign government.” After addressing IRFA’s NSA definition and providing an overview of its implementation to date, this Article turns to a critical appraisal of how the state control requirement has been implemented to date. The Article closes with several suggestions aimed at clarifying definitions and institutional responsibilities to repair current practice and reinvigorate IRFA’s promise of promoting and protecting the right of all individuals to freedom of religion or belief

Leveraging Regional Human Rights Mechanisms Against Universal Human Rights: The OIC Independent Permanent Human Rights Commission Study on Sexual Orientation

This article critically assesses a recent study on sexual orientation and gender identity (SOGI) prepared by the Organization for Islamic Cooperation’s (OIC) Independent Permanent Human Rights Commission (IPHRC). The first two parts review the establishment of the IPHRC and the norms governing regional human rights mechanisms (RHRMs). Following this, the article demonstrates that the methodology and conclusions evidenced in the IPHRC’s SOGI study diametrically oppose substantive international human rights law, and furthermore undermine the intended purpose of RHRMs within the human rights system. The article concludes by recommending that human rights advocates and others clearly and publicly call out these incompatibilities, set baselines for necessary corrections, and work to develop meaningful, binding standards for RHRMs. Among other things, these standards should ensure that similar bodies orient their activities to promoting and protecting international human rights rather than undermining them

How to Entrench a De Facto State Church in Russia: A Guide in Progress

The Russian Orthodox Church\u27s (ROC) assertion of a constitutionally inappropriate role in affairs of state has severely compromised Russia\u27s secular constitutional framework. This gradual but steady erosion of the barrier between church and state is evidenced by a series of contemporary developments that are inexorably linked to the Church\u27s vision of its traditional place in Russian history. Disturbingly, each successive post-communist regime has further enabled this behavior, and there is no indication that the political transition from President Vladimir Putin to his hand-picked successor, Dmitry Medvedev, will change anything. This paper argues that the emerging pattern of collusion presents a serious challenge to Russia\u27s constitutional order and to the country\u27s regional and international human rights commitments - chief among these being the right to freedom of thought, conscience, and religion or belief

Defamation of Religion: Rumors of Its Death Are Greatly Exaggerated

This Article explores the recent decisions by the United Nations (“UN”) Human Rights Council and General Assembly to adopt consensus resolutions aimed at “combating intolerance, negative stereotyping and stigmatization of, and discrimination, incitement to violence and violence against, persons based on religion or belief.” These resolutions represent an effort to move past a decade’s worth of contentious roll call votes in favor of prohibiting defamation of religion within the international human rights framework. Although labeled “historic” resolutions, this Article argues that the UN’s new compromise approach endorsed in 2011 — and motivated in part by the desire to end years of acrimonious debate over the acceptability of shielding religious beliefs from insult and criticism — is problematic because it risks being exploited to sanction the continued prohibition on defamation of religion and perpetuation of ensuing human rights violations on the ground. After briefly considering the history of defamation of religion at the UN and the strategies employed by its principal proponent, the Organization of Islamic Cooperation (“OIC”), this Article turns to an assessment of the UN Human Rights Council’s 2011 consensus Resolution 16/18. In light of the resolution’s objectives, this Article explores the viability of the new international consensus around “combatting intolerance” and tests to what extent, if any, the concept of defamation of religion may be waning in practice. To this end, this Article weighs statements, resolutions, and other undertakings of the OIC and its member states with a particular emphasis on activities that follow the adoption of Resolution 16/18. Based on this analysis, the Article concludes that the resolutions on combatting intolerance passed in 2011 represent a Clausewitzian moment for many governments, particularly among OIC member states. Essentially, support for the new international consensus on combatting intolerance represents a cynical and strategic decision to continue the campaign to legitimate a ban on defamation of religion by other means. Accordingly, even if defamation of religion per se is on hiatus from the UN, absent additional measures — including a decisive repudiation of the concept’s validity — further international efforts to implement measures for combatting intolerance risk enabling an alternative framework in which governments continue justifying, in the name of protecting religious belief, domestic measures that punish the exercise of freedom of expression and freedom of thought, conscience, and religion or belief

The Wolf Act Amendments to the U.S. International Religious Freedom Act: Breakthrough or Breakdown?

This Article takes a critical look at the major changes brought about by recent amendments to the International Religious Freedom Act of 1998 (IRFA). The first section briefly traces IRFA’s key features and operation since its enactment, including an overview of the statute’s institutions and reporting and sanctioning mechanisms. This section also highlights the ongoing debate regarding IRFA’s legitimacy and offers a summary of the major criticisms leveled against the statute, as well as the responses raised in its defense. With this background in place, the Article turns to an analysis of the legislative history surrounding the Frank R. Wolf International Religious Freedom Act (Wolf Act) between 2015 and 2016. This bipartisan legislative initiative envisioned a wide range of amendments intended to address some of IRFA’s past shortcomings. Among the changes initially put forward, IRFA’s narrow focus on states would be expanded to include violent nonstate actors responsible for violating freedom of religion or belief. In addition, the original Wolf Act called for boosting the responsibilities and profile of IRFA’s institutional actors, increasing funding for the promotion of international religious freedom activities, mandatory religious freedom training of State Department officials, and a significant reduction of executive discretion. As a review of this legislative history will demonstrate, however, many of the changes originally proposed would be either diluted or altogether deleted, the victims of bad design or competing political interests. The final content of the Wolf Act as enacted represents an ambivalent renewal of IRFA’s original promise “to use and implement appropriate tools in the United States foreign policy apparatus . . . to promote respect for religious freedom by all governments and peoples.” In conclusion, the Article posits some of this ambivalence may be alleviated or partially remedied based on how IRFA’s primary institutional actors turn to the task of implementation. At the same time, securing a more definitive assertion of the central role of religious freedom in U.S. foreign policy as envisioned in the original Wolf Act will likely require a renewed, more concerted and committed second effort by Congress

Human Rights and Disinformation Under the Trump Administration: The Commission on Unalienable Rights

The former administration of Donald J. Trump shattered norms governing the responsibility to relay accurate, truthful information to the public. Whether regarding trivialities or vital issues of the day, the “Trump Doctrine” unleashed a global torrent of damaging misinformation and disinformation. This penchant for falsehood and distortion did not spare U.S. human rights policy. The administration’s decision to establish a Commission on Unalienable Rights (COUR) represented a high-water mark in its campaign to subvert international human rights norms. After introducing key concepts relating to misinformation and disinformation, this article reviews the establishment of the COUR and the substance of its final report. Among other things, the COUR report prioritizes “unalienable rights” while dismissing other “lesser” or “newer” rights intended to protect vulnerable groups. Coupled with this hierarchical framing, the report aspires to freeze the substance of human rights as it was in 1948 and to invoke state sovereignty as a legitimate shield against international scrutiny of domestic human rights conditions. With this background established, the Article explores how the COUR’s disinformation assault on the common political knowledge shared by democratic states operated to disrupt shared values while empowering authoritarian and illiberal actors. More damaging, this section also demonstrates how the administration compounded this disinformation fissure through its subsequent advocacy of selective elements of the COUR report for the purpose of prioritizing “religious liberty” at the expense of other rights, as well as the United States’ longstanding democratic alliances. The final section of this Article reasons that restoration of the United States’ vital leadership role in the international community is contingent on repairing its commitment to the promotion and protection of human rights both at home and abroad. Despite the Biden administration’s swift, if perfunctory, repudiation of the COUR project, the Article concludes that an effective and durable rebuttal of its pernicious and lingering disinformation will demand more significant policy and educational change