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Are We Heading Towards An Olympics of Oppression?

About The Author

Jade Rigby (Writer)

Jade is a third year Law student at Newcastle University. She is currently completely an Erasmus year abroad at Universitat Pompeu Fabra in Barcelona, Spain, and will return to Newcastle in 2015. Jade is predominantly interested in commercial law, but also writes on criminal and private law topics.

In 1964, racial discrimination in South Africa sparked an Olympic ban of almost thirty years. South Africa was only restored to the games in 1992, following the repeal of all apartheid laws the previous year.

Why then, as the world prepares for the Winter Olympics next year, has so little been made of Russia’s anti-homosexual law?

Homosexuality was decriminalised in Russia in 1993, but earlier this year Russia passed an incredibly discriminatory law that introduces heavy fines for anyone found to be distributing material concerning homosexual rights to minors. The law, which amends a children’s protection act, has caused outrage in human rights activist communities across the globe. Clearly, despite assurances, many people feel threatened by Russia’s anti-homosexual stance, which looks set to overshadow the Winter Olympic celebrations in 2014. Discriminatory laws such as this pose a serious dilemma for legal theorists; how can the state legitimately defend and uphold prejudiced laws that persecute citizens for their fundamental, permanent characteristics? Should these implementations really be considered as valid laws?

Such questions circulate around the issue of the Rule of Law - a principle that, at a very basic level, depicts whether a particular measure has legal validity. The Rule of Law is a contested value, but is usually associated with connotations of freedom, equality, and democracy. Commentators, such as William Godwin, often refer to the principle when they discuss whether the law is simply a social concept or a tool that can achieve the objectives of the government. Accordingly, it is possible to deconstruct Putin’s Law in light of predominant Rule of Law theories.

The British theorist A. V. Dicey developed a core concept of the Rule of Law during the Victorian era. Dicey argues that the law has no moral core, but valid laws must consist of three elements. Firstly, all laws must be clear and leave no room for executive discretion. There must be one legal system and only one type of court must administer. Finally, the courts must defend civil liberties against arbitrary infringement. If we were concerned with this narrow view of the Rule of Law, it would be difficult to find fault with the legal validity of Putin’s law. The Russian Parliament unanimously approved the discriminatory bill. Dicey’s narrow concept can empower and legitimise corrupt and discriminatory governments because there is no requirement for the law to have a moral core. From a human rights perspective, this rule of legal validity is extremely dangerous. Putin’s law refers to “propaganda”, but this is a very ambiguous term. The Russian courts, therefore, will have little ability to stop the government from arbitrarily interfering with homosexuals, or those who champion their equality, because Putin’s law conveys a wide power of government action. The Russian government would have a legitimate, legal basis for legislating against homophobic behaviour. It is clear that the law can be used as a tool to wage war against sections of society.

While Dicey’s Rule of Law does little to question the validity of discriminatory law, other jurisprudential theories exist that do. One of the most influential wider theories of the Rule of Law was put forward by Lon Fuller in his book ‘The Morality of Law’. Fuller stated that society should not be governed by law; law should be governed by society. At a basic level, Lon Fuller argues that the public should expect law to incorporate certain qualities. Law can only be considered legitimate and valid if, and only if, these qualities can be identified within each implementation. There has to be more than just procedural concerns if human rights are to be upheld in evolving legal systems. One of the most serious concerns raised by Fuller is that the law must be a clear, overarching rule – it needs to be applicable to the whole of, or at least to a section of, society. Arguably, the Russian law is an overarching rule because it does apply to all citizens; the controversial issue is that it is sexually discriminatory in nature. The Russian authorities could still persecute a heterosexual person. Clarity, however, may be an issue. The law is extremely ambiguous. There are questions concerning what material could be considered prohibited; does the law respond to facts concerning homosexuality, or stereotypes? The answers will be found in future case law and further implementations. It is unlikely that the matter will refer to closed categories of material, which further adds to the legal uncertainty surrounding the Russian law.

The Substantive Rule of Law, which originated from Marxism, is a further theoretical approach to legal validity. The concept was rooted in a call for social, not just formal, equality. The legal field of human rights is extremely broad, but at the very heart of it is a concern for equality. The wealthy should not be able to manipulate legal processes, so valid law should incorporate social equality. This theory shakes the very foundation of Putin’s law. Discriminatory law does not promote social equality.

If we are to take the view that a law must contain certain qualities or uphold particular principles, then this means that we do not accept a law as valid simply because of the procedural process it has undergone. Significantly, a law that is perceived to conflict with the substantive view of the Rule of Law can be criticised legitimately by other countries.

These laws are hallmarks of a corrupt government, and should trigger warning bells across the globe. There have been many famous historical examples of social inequality dominating a country’s legal system - most notoriously, Nazi Germany. International condemnation will follow the enactment of a discriminatory law because such implementations undermine the actions of other governments. It is hoped that international audiences will neither ignore nor tolerate Russia’s actions for much longer, especially as homophobic violence is reportedly on the rise in the country.

In 1996, the Russian Federation joined the Council of Europe. Russia’s homophobic stance has since been strongly criticised by the Council of Europe several times, and there has recently been much debate concerning these issues. The European Court of Human Rights raised concerns in their decision of <href="#{"itemid":["001-101257" target="_blank">Alekseyev v Russia that Russia was violating human rights by banning gay pride parades in many cities. It was evident that discrimination on grounds of sexuality was occurring, and heavy fines were issued against Russia. It is clear, therefore, that Russia can be held to account – but how effective are these reprimands? It does not seem that there has been any lasting effect. Earlier this month, Delphine d'Amora reported remarks from an envoy from the state Duma to the Russian Constitutional Court, who contended that: “The ECHR is not a superior judicial authority in relation to national courts.” So is this simply a case of ‘pay the fine and carry on’? Russia may have ratified the European Convention on Human Rights in 1998, but over 100 European Court of Human Rights judgments in 2012 found at least one breach of the Convention. Clearly, sanctions are not working.

So what will this mean for the world’s Winter Olympians this coming February? If we consider how discriminatory regimes have been camouflaged in the past, we may find an answer to this question. Outright discrimination embedded in the law flags up one glaring example: Nazi Germany. There has already been a discussion concerning the validity of these discriminatory laws, but at the heart of the issue is a concern for acceptance. Nazi Germany hosted the Summer Olympics of 1936 and despite boycott proposals the Games were well attended. The boycotts were called off because international pressure had forced Hitler’s hand – he could not portray Germany as a glittering super-state if there was no audience to be impressed. The participation rules had to be relaxed. Many countries had Jewish competitors, but Germany only had one half-Jewish athlete who competed at the Games. The discriminatory nature of the Nazi regime was a subtle undertone to the 1936 Games, but it was still present.

Hitler’s Games were nearly eighty years ago, but international pressure was successful in cultivating the competition. Why then, are the Russian Winter Games going ahead? Homosexual athletes from across the world may feel strongly connected to the potential German-Jewish competitors of 1936: excluded, threatened, and judged. In the eighty years since Nazi Germany, human rights have been at the helm of social development across the globe. Therefore, discriminatory exclusion from the Winter Games, even if passive, should not be tolerated. It is inexcusable to allow Russia to host the Winter Games; safety and security cannot be guaranteed amongst increasing hate attacks on homosexuals. The Games are a chance for a country to showcase itself. Should the games be allowed to proceed in Russia if they will be showcasing discrimination? At this late stage, an international boycott to shame Russia’s homophobic laws could be just what the doctor ordered.

It is time for the world to stand unitedagainst discrimination. The key challenge for lawyers will be how to approach a country governed by what can be considered theoretically as invalid, and valid law. Further, and shockingly, Russia has been awarded a three-year seat on the United Nations Human Rights Council. Nevertheless, with such growing outrage against the discriminatory legislation, it appears as though turbulent times await Putin in the build-up to the Winter Olympics.

Further Reading

ALEKSEYEV v. RUSSIA (Applications nos. 4916/07, 25924/08 and 14599/09).

Lon Fuller, ‘The Morality of Law’, Yale University Press, 1964.

The European Court of Human Rights: Press Country Profile: Russia.

Delphine d'Amora, The Moscow Times, ‘Lawmakers Say Russian Courts Trump European Court in Parental Leave Case’.

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Tagged: Discrimination, Human Rights, International Law

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