Christopher Troye^† | 2 Regent J. Glob. Just. & Pub. Pol. 357 (2016)

INTRODUCTION

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

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

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

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

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

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

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

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