The Ghost of Torkel Opsahl

JURIST Guest Columnist Allison Jernow of the International Commission of Jurists argues that the international law's perception of public morality is beginning to incorporate various and diverse traditions...

In November 2012, the UN Human Rights Committee (UNHRC) undid 30 years of bad law when it issued its views in Irina Fedotova v. Russian Federation. The UNHRC held that a Russian law prohibiting "propaganda of homosexuality" violated Fedotova's rights under Article 19 and Article 26 of the International Covenant on Civil and Political Rights (ICCPR). Fedotova was arrested in March 2009 for displaying posters that read "Homosexuality is normal" and "I am proud of my homosexuality" near a secondary school in Ryazan. The Ryazan Law on Administrative Offences prohibited "public actions aimed at propaganda of homosexuality among minors." She was arrested, convicted and ordered to pay a fine of 1,500 roubles. Fedotova lost her appeal to the district court and her appeal to the Constitutional Court was dismissed. The Constitutional Court ruled that prohibiting information that was capable of forming in minors "perverted conceptions about the equal social value of traditional and non-traditional family relations" could not be considered a violation of constitutional rights.

Since the Constitutional Court decision a number of regions in Russia — eight as of publication, including St. Petersburg — have adopted similar laws banning "homosexual propaganda." Activists across the country have been arrested and convicted.

In 1982, in the case of Leo Hertzberg v. Finland, the UNHRC had in fact upheld the censorship of journalists who had attempted to report about gay life in Finland. The restrictions were based on a law criminalizing anyone who "publicly encourages indecent behavior between persons of the same sex." Furthermore, the UNHRC found it unnecessary to review the actual content of the censored programs. Information about homosexuality was deemed per se unsuitable for the airwaves.

With Fedotova, the UNHRC has not only upheld the rights of Fedotova, a well-known LGBT activist — hopefully striking a blow at the "homosexual propaganda" laws now proliferating across Russia — it has also vindicated Torkel Opsahl. Opsahl was a UNHRC member who wrote separately — since dissents are not part of UNHRC practice — to emphasize that:

[T]he conception and contents of public morals referred to in Article 19(3) are relative and changing ... [s]tate-imposed restrictions on freedom of expression must allow for this fact and should not be applied to as to perpetuate prejudice or promote intolerance.
Article 19 of the ICCPR guarantees the right to freedom of expression. Under Article 19(3), the right may only be subject to restrictions that are "provided by law" and "necessary" for "respect of the rights or reputations of others" or for "the protection of national security or of public order (ordre public) or of public health or morals." Article 26 guarantees the right to equality before the law, equal protection of the law and non-discrimination. Since the case of Toonen v. Australia in 1994, the UNHRC has held sexual orientation is included within the protection of Article 26.

Opsahl, who died in 1993, was, unusually, a member of both the UNHRC and the European Commission of Human Rights (ECHR). The ECHR functioned as the antechamber to the European Court of Human Rights until the system was restructured in 1988. When the Commission decided Handyside v. United Kingdom [PDF], which upheld restrictions on a book publisher for the protection of morals, "particularly the morals of young people and children," Opsahl dissented. He wrote: "[T]he main point is that freedom of expression under the [European] Convention should be granted and defended also and in particular, when it benefits those with whom one disagrees or relates to that which one dislikes."

Opsahl's argument, of course, did not carry the day in Handyside. The court, sitting in plenary, likewise found no violation of the right to freedom of expression. One finds echoes of the Handyside language in Opsahl's individual opinion in Hertzberg. In particular, Opsahl stressed the importance of protecting minority views, "including those that offend, shock or disturb the majority." These words are drawn directly from the Handyside judgment of the court which, despite finding no violation, nevertheless recalled that freedom of expression applied to ideas that "offend, shock or disturb the State or any sector of the population."

This idea that what is offensive, shocking or disturbing may not be suppressed in the name of public morals is a relatively new concept in international law. Despite the general move in national jurisdictions towards harm-based justifications for criminal sanctions — as evidenced by the Wolfenden Committee report, the Hart-Devlin debate and the American Law Institute's Model Penal Code — public morality remains a permissible purpose for restrictions on a range of rights, including the rights to freedom of expression, assembly and association. However, public morality can be just as problematic a ground for restricting these rights as it is in criminal law. The thirty years between Hertzberg and Fedotova tell us something about how international law's view of public morality as a permissible limitation has changed.

In Hertzberg, Finland argued that its criminal law reflected "the prevailing moral conceptions in Finland as interpreted by the Parliament and by large groups of the population." Was the protection of public morals a sufficient justification for the censorship of the radio and television programs? The UNHRC found it was, observing: "[P]ublic morals differ widely ... [t]here is no universally applicable common standard ... a certain margin of discretion ought be accorded to the responsible national authorities." Since the audience for radio and television programs could not be controlled, "harmful effects on minors cannot be excluded."

A little more than a decade later, however, in a general comment on freedom of religion, the UNHRC used the diversity of conceptions of morality to make a very different point, stating "the Committee observes that the concept of morals derives from many social, philosophical and religious traditions; consequently, limitations on the freedom to manifest a religion or belief for the purpose of protecting morals must be based on principles not deriving exclusively from a single tradition." More recently, in a general comment on freedom of expression, the UNHRC reiterated this warning about limitations based on morals, adding that "any such limitations must be understood in the light of universality of human rights and the principle of non-discrimination."

In the case of Fedotova, Russia argued before the UNHRC that the law was a necessary restriction on the right to freedom of expression for the purpose of protecting morals and the health and rights of minors. It defended the domestic court decisions, which held that "traditional understandings" of family required special protection from the state. This time the UNHRC disagreed. It emphasized limitations for the purpose of protecting public morals could not be based exclusively on a single tradition. The concept of morals was itself derived from many different social, philosophical and religious traditions. It noted the Ryazan law prohibited only "propaganda of homosexuality" and not "propaganda of heterosexuality" or even sexuality generally. Rather than assuming in Fedotova, as it had in Hertzberg, that "issues related to homosexuality" obviously implicated public morality and could have harmful effects on children, the UNHRC found no evidence to justify restricting "propaganda of homosexuality" among minors:

While the Committee recognizes the role of the State party's authorities in protecting the welfare of minors, it observes that the State party failed to demonstrate why on the facts of the present communication it was necessary, for one of the legitimate purposes of Article 19, paragraph 3, of the Covenant to restrict the author's right to freedom of expression on the basis of section 3.10 of the Ryazan Region Law, for expressing her sexual identity and seeking understanding for it, even if indeed, as argued by the State party, she intended to engage children in the discussion of issues related to homosexuality. Accordingly, the Committee concludes that the author's conviction ... amounted to a violation of her rights under Article 19, paragraph 2, read in conjunction with Article 26 of the Covenant.
Thirty years is a long time, but somewhere Torkel Opsahl should be smiling.

Allison Jernow is the Senior Legal Advisor for Sexual Orientation and Gender Identity for the International Commission of Jurists. She has also worked as a federal prosecutor specializing in civil rights crimes. She then worked as a consultant for a number of international organizations, including the International Labour Organization and the Organization for Security and Cooperation in Europe.

Suggested citation: Allison Jernow,The Ghost of Torkel Opsahl, JURIST - Hotline, Dec. 3, 2012, http://jurist.org/hotline/2012/12/allison-jernow-russia-discrimination.php.


This article was prepared for publication by John Paul Regan, an assistant editor, and Stephen Krug, an associate editor with JURIST's professional commentary service. Please direct any questions or comments to them at professionalcommentary@jurist.org

 

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