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The Dissent in Bayev and Others v. Russia: A Window into an Illiberal World View

A previous post discussed the majority opinion in Bayev and Others v. Russia, where the ECtHR found that Russia’s anti-gay propaganda law violated the European Convention on Human Rights. I want to focus on the dissent. While the majority is important for its legal impact, the dissent is important for the window it provides into a non-Western world view. The previous post discusses the facts of the case, so I will dive right in.

One may dismiss a lone dissenter, especially one who decided in favor of the country he is from, but Judge Dedov shouldn’t be dismissed so quickly. Dedov didn’t dissent out of a bias in favor of his country, but from a fundamentally different world view than that of the Western judges. His world view isn’t isolated to Russia. I have been doing human rights work for the last few years in Armenia, and his views on LGBT people are shared by the majority in Armenia, if not by Eastern Europe generally. This view is part of the cultural divide between the “decadent West” and the “traditional East”. His dissent is significant because it may be the most thorough and rigorous articulation of the illiberal narrative.

The Majority and the Dissent

Legally speaking, the majority’s opinion was almost exclusively a question of whether there was a violation of Article 10 (freedom of expression), with the bulk of the opinion finding an unjustified interference. Having found a violation due to the anti-gay propaganda law being an instance of “predisposed bias”, the majority spends only six scant paragraphs before determining there was also a violation of Article 14 (non-discrimination) in conjunction with Article 10.

Judge Dedov took a completely different tact. The gist of his dissent is that the situation involves a balancing of rights. Superficially, his reasoning seems defensible:

  • First, Article 8’s respect for private and family life contains positive obligations.
  • Second, States should enjoy a wide margin of appreciation in respect to public morals and decency.
  • Third, the Court has encouraged states to combat child sexual abuse, including “the forcible informing of children without their desire or consent, in any form, about sex in general”
  • Thus, the right to freedom of expression conflicts with the duty to respect the private life of children. States must balance those two obligations. Russia’s anti-gay propaganda law attempts to balance them and falls within Russia’s margin of appreciation.

But that legal defensibility rests on facts that are indefensible to the Western mentality. The judge’s bias is obvious from his statements that exposing children to the mere existence of homosexuality could make them “interested in […] homosexual relations” or that the purpose of the demonstrations was “to raise awareness of non-traditional sex, thus making children more vulnerable to sexual abuse”. Even his legal reasoning is suspect in places, such as how he attempts to use Article 28 of the Convention on the Rights of the Child (children’s right to education) to say that children shouldn’t be “obtaining information about sex from the applicants’ posters in the street.”

Viewing Dedov’s arguments in the best light possible, children’s extreme vulnerability requires parents—and consequently the State—to be vigilant. The State is a central player as it is needed to protect children when parents are not able to.

There are similarities between the dissent and Western arguments against homosexuality, but they diverge on the issue of individual liberty. Some of Dedov’s points are the same ones conservatives used in the landmark 2013 case of United States v. Windsor that found unconstitutional a federal definition of marriage as only between a man and woman (e.g., both discuss the benefit to society that heterosexual couples provide through procreation). However, conservatives in the US, no matter how anti-LGBT, are staunchly in favor of individual liberty (Marko Milanovic has commented on how Western States’ embrace of liberty requires them to justify restricting same-sex marriage). That is not the case in many Eastern European countries. The more homogenous and communitarian the culture, the more the populace is willing—and often wants—to impose legal restrictions on individual liberty knowing the weight will fall hardest on LGBT people.

Human Rights as a Yardstick

Entering this moral and cultural flash point is human rights. Human rights is a tool to assess States’ treatment of individuals, especially minorities. Detractors claim that human rights is an unprincipled weapon wielded by liberals to support their political agenda. This view is incorrect. Understanding the role of human rights requires taking a step back to see its grounding.

Human rights is ultimately based in law, and law is objective. One party’s interpretation is ultimately right and the other’s wrong. Human rights is more controversial than most fields of law because its moral underpinnings and social implications are much more visible. Not everyone’s morality can be made to comply with human rights, and some will be upset.

Human rights is also universal. With universality, it’s unquestionable that an objective standard is bound to conflict with local views. This imposition by international law is nothing new; a similar development happened in international investment law when an international minimum standard of treatment trumped competing concepts like the Calvo Doctrine.

Thus, human rights gives us a universal, objective standard.  This is hardly a startling statement as anything else would make it impossible to legally apply human rights. A universal, objective standard doesn’t sit well with illiberals. At best, illiberals are political relativists with a touch of ethnonationalism (“What works for your country is fine, but our country and traditions are different; we’ll decide what works for us”). A universal, objective standard is diametrically opposed to this world view. Even worse for illiberals, a universal, objective standard allows outsiders to judge domestic policies, including the treatment of minorities.

Illiberalism’s Indefensibility

Tradition is a significant source of policy for illiberals. For traditional cultures like in Eastern Europe, being pro-family means being anti-LGBT. One flows from the other because homosexuality is viewed as a direct attack on the traditional family. It’s unsurprising that laws are developed to support this popular view.

Tradition, for all its benefits, is rarely reasoned. Reliance on tradition is not only a logical fallacy but is not an argument one can make in a human rights court. The defense of that world view needs a post hoc justification made up of alternative arguments and alternative facts. This façade of legitimacy may work for political sound bites but cannot hold up to scrutiny.

The value of the ECtHR and other international courts in today’s world of competing narratives and disputed facts is to be the bodies that rigorously apply an objective standard. The majority in Bayev didn’t ignore Russia’s perspective; the majority gave it the scrutiny it deserved. Russia’s defense was based in part on the idea that “a minor could be enticed into ‘[a] homosexual lifestyle’”—a point repeated in Dedov’s dissent—which the majority rightfully rejected due to the view “lacking any evidentiary basis”.

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