ABSTRACT

The nations of Europe have been characterized in recent years by a significant increase in cultural and religious diversity. While this has brought a cultural richness, it has also increased cultural tensions. As one commentator has noted, “Clashes, provocation, and dissent between religiously and culturally different groups have characterized many mainstream European concerns.”1

In E.S. v. Austria (2018), the European Court of Human Rights (ECtHR) upholds Austria’s effort to promote “religious peace” and “mutual tolerance” by convicting an individual for making statements highly critical of Mohammad.2 The ECtHR does so by offering Austria a wide margin of appreciation to determine how to navigate the difficult challenges of religious and cultural diversity, but also by largely ignoring the text of the European Convention of Human Rights – and even other principles of international law on which it purports to rely.3 It does so also in the name of strengthening freedom of religion. But the ECtHR is mistaken. Not only does E.S. severely restrict freedom of expression, it also may actually reduce the freedom of religion as understood in the Convention.

Part One of this Article focuses on the unique factual and political circumstances that gave rise to the prosecution of E.S. as well as the analysis of the courts, from the Austrian national courts to the ECtHR. Part Two discusses how the ECtHR’s decision in E.S. v. Austria is deeply flawed in three ways. First, the ECtHR engages in almost no serious textual analysis of the relevant Convention articles. Second, in the place of meaningful textual interpretation, the ECtHR applies the margin of appreciation doctrine to support its own analysis which offers little clarity or certainty and leads to a troubling result. Third, the ECtHR reaches a decision that puts it in tension with other key international law standards that it identifies as relevant to the case.

I. PART ONE: CASE HISTORY

A. Facts of the Case

In January of 2008, the Freedom Party Institute (Bildungsinstitut der Freiheitlichen Partei sterrecihs) held several seminars entitled “Basic Information on Islam” (Grundlagen Des Islams).4 The Freedom Party is a right-wing populist and national-conservative political party in Austria.5 The party began attacking the influence of Islamic extremism in the early 1990s after the issue of immigration became an increasingly important issue for voters in Austria.6 In 1993, the Freedom Party was among the groups promoting the controversial “Austria First” initiative, which sought to collect signatures for a referendum on immigration restrictions.7 The party expanded its attack on Islamic extremism to include Islamisation and the increasing number of Muslims in general.8 The party has also fought the practice of distributing free copies of the Koran.9

The “Basic Information on Islam” seminars were open to the public and were publically advertised on the Freedom Party website.10 In addition, the party had distributed a leaflet specifically aimed at young voters, promoting the seminars.11 Two seminars were held on October 15th and November 12th of 2009, with thirty participants each.12 E.S.13 was the main speaker and spoke for a total of twelve hours during both seminars.14

E.S. made two statements during this twelve hour period that placed her in legal jeopardy with the Austrian court:

and;

E.S.’s statements concerned the marriage of Muhammad to Aisha as recorded in the Sahih Al-Bukhari, one of the Kutub al-Sittah (six major hadith collections) of Sunni Islam.17 Sahih Al-Bukhari provides, “It is reported from Aisha that she said: The Prophet entered into marriage with me when I was a girl of six . . . and at the time [of joining his household] I was a girl of nine years of age,” and also, “Khadija died three years before the Prophet departed to Medina. He stayed [alone] for two years or so. He married Aisha when she was a girl of six years of age, and he consummated that marriage when she was nine years old.”18

E.S.’s statement, “[w]e have huge problems with that today, that Muslims get into conflict with democracy and our value system” referred to child marriage in many predominately Muslim countries.19 The Sahih Al-Bukhari has influenced domestic law concerning the age of marriage in many predominately Muslim countries. This practice has been condemned by the UN Committee on the Rights of the Child that states, “[g]irls [in many Muslim nations] cease to be [a] minor after [nine] lunar years. Thus, after this age, they are excluded from the protection of the Convention on the Rights of the Child.”20 “According to the United Nations Population Fund (UNFPA), between 2011 and 2020, 50 million girls under 15 years old” were married, a phenomenon largely rooted in predominately Muslim countries.21 “The minimum age for marriage in Iran is 13 years for girls and 15 for boys.”22 It has been reported that in Iran, 43,459 girls under 15 years became married in 2009 and 716 girls under 10 years married in 2010.23 The Grand Mufti of Saudi Arabia said in 2012 that girls are ripe for marriage at 12 years, and it is only since 2013 that the minimum age of marriage for girls was raised to 16 and the consent of the child required.24

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† Jeffrey Brauch is a professor at Regent University School of Law and the executive director of the school’s Center for Global Justice, Human Rights, and the Rule of Law. Among other courses he teaches International Human Rights and International Criminal Law.

†† Cody Goings attends Regent University School of Law. He is thankful to Professor Brauch and his wife, Leigh Goings.

1 Parvati Nair, Cultural and Religious Diversity in Europe: The Challenges of Pluralism, IEMED. MEDITERRANEAN YEARBOOK 328, 328 (2014), https://www.iemed.org/observatori/arees-danalisi/arxius-adjunts/anuari/anuari2014/nair_religious_diversity_europe_pluralism_IEMed_yearbook_2014_EN.pdf.

2 E.S. v. Austria, App. No. 38450/12, Eur. Ct. H.R. ¶¶ 41, 44 (2018).

3 Id. ¶ 44.

4 Id. ¶ 7.

5 HANSPETER, KRIESI ET AL., POLITICAL CONFLICT IN WESTERN EUROPE 52 (Cambridge Univ. Press 2012); JOHANNES JÄGER & ELISABETH SPRINGLER, ASYMMETRIC CRISIS IN EUROPE AND POSSIBLE FUTURES: CRITICAL POLITICAL ECONOMY AND POST-KEYNESIAN PERSPECTIVES 110 (Routledge, 2015); Wolfram Nordsieck, Austria, PARTIES & ELECTIONS EUR. (2017), http://www.parties-and-elections.eu/austria.html.

6 Susi Meret, The Danish People’s Party, the Italian Northern League and the Austrian Freedom Party in a Comparative Perspective: Party Ideology and Electoral Support, SPIRIT PHD SERIES 1, 194 (2010), http://vbn.aau.dk/files/20049801/spirit_phd_series_25.pdf.

7 Id.

8 See id. at 198–99; see also Vexed in Vienna, ECONOMIST, May 21, 2016, at 50.

9 Disaster averted—for now, ECONOMIST, May 28, 2016, at 12.

10 E.S. v. Austria, App. No. 38450/12, Eur. Ct. H.R. ¶ 7 (2018).

11 Id.

12 Id. ¶ 8.

13 The Court granted E.S. anonymity on the Court’s own motion under Rule 47 § 4 of the Rules of Court; which provides: “Applicants who do not wish their identity to be disclosed to the public shall so indicate and shall submit a statement of the reasons justifying such a departure from the normal rule of public access to information in proceedings before the Court. The Court may authorize anonymity or grant it of its own motion”. Eur. Ct. H.R., Rules of Court, at 24–25, (Aug. 1, 2018), https://www.echr.coe.int/Documents/Rules_Court_ENG.pdf.

14 E.S., App. No. 38450/12 ¶ 34.

15 Id. ¶ 13.

16 Id.

17 HAROLD G. KOENIG & SAAD AL SHOHAIB, HEALTH AND WELL-BEING IN ISLAMIC SOCIETIES 30–31 (Springer 2014) [hereinafter KOENIG & SHOHAIB].

18 Zahid Aziz, Age of Aisha (ra) at time of marriage, LAHORE AHMADIYYA MOVEMENT, http://www.muslim.org/islam/aisha-age.htm(last visited Feb. 21, 2019).

19 E.S., App. No. 38450/12 ¶ 13.

20 GREGOR PUPPINCK, Written Observations in the Case of E.S. v. Austria, 8 (Eur. Ctr. for Law & Justice 2017), http://9afb0ee4c2ca3737b892-e804076442d956681ee1e5a58d07b27b.r59.cf2.rackcdn.com/ECLJ%20Docs/Written%20Observations%20E.S.%20v.%20Austria.pdf[hereinafter Puppinck].

21 Id.

22 Id.

23 Robert Tait, Alarm as hundreds of children under age of 10 married in Iran, TELEGRAPH (Aug. 26 2012), https://www.telegraph.co.uk/news/worldnews/middleeast/iran/9500484/Alarm-as-hundredsof-children-under-age-of-10-married-in-Iran.html.

24 Sara Anabtawi, Girls ready for marriage at 12 – Saudi Grand Mufti, ARABIAN BUS. (Feb. 20, 2019), http://www.arabianbusiness.com/girls-ready-for-marriage-at-12- saudigrand-mufti-455146.html#.V0NBKfmLRaQ.

INTRODUCTION

On May 11, 2016, the United Nations Security Council (“UNSC”) requested that the Counter-Terrorism Committee propose an “international framework” to curb “Islamic State in Iraq and the Levant (“ISIS”)” incitement and recruitment.1 The UN’s urgent request comes at a time when terrorist groups, such as ISIS, have been increasingly using social media platforms as a tool to recruit followers and to incite their followers to commit violent acts.2 ISIS has been notorious for taking advantage of Twitter as a propaganda megaphone through which it blares its extremist narratives to the world.3 Moreover, the way in which social media platforms have enabled ISIS to instantaneously share its narratives with the world with just a click of the mouse has led ISIS to gain a global base of supporters.4 In fact, it would not be an understatement to claim that social media platforms have transformed terrorism by “facilitating both ubiquitous and real-time communication between like-minded radicals with would-be recruits and potential benefactors, thus fueling and expanding the fighting and bloodshed to a hitherto almost unprecedented extent.”5

Consequently, there is a pressing need for an international framework of internet governance on social media platforms to regulate ISIS narratives and to specifically curb ISIS incitement and recruitment through the regulation.6 The proposed international framework, however, must not infringe upon “human rights and fundamental freedoms and [must be] in compliance with obligations under international law.”7 Despite the UN’s recognition of the need to preserve “human rights and fundamental freedoms,” a proposed international framework on internet governance of social media platforms will inevitably implicate free speech rights. In addition, the lack of a universally accepted definition of terrorism raises potential issues with a government’s abuse of discretion. Without a universal definition of terrorism, a government would be able to arbitrarily decide what constitutes terrorist narratives at the cost of regulating merely objectionable yet legitimate content.

In an attempt to propose an international framework for internet governance of social media platforms, this Note will first examine the advantages of social media platforms and how ISIS has adopted these advantages for its own purposes of spreading propaganda, inciting, and recruiting. Then, this Note will present the challenges of regulating social media platforms due to free speech implications and the lack of a universally working definition of terrorism, especially with regard to the United States (“U.S.”) and France, countries that have traditionally placed a high value on the freedom of speech, then Russia and Turkey, countries that have traditionally placed a low value on the freedom of speech. This Note elaborates on these four countries because all are in the fight against terrorism on multiple fronts, including the regulation of ISIS narratives on social media platforms. Then, this Note will explore each country’s regulations in light of its respective value for the freedom of speech. After examining each country’s respective definition of terrorism and attempts to regulate online terrorist content, this Note will propose that the international framework should adopt the U.S.’s multistakeholder approach on internet governance and France’s definition of terrorism to minimize infringing on citizens’ free speech rights. As for specifically curbing ISIS incitement and recruitment, this Note suggests that internet governance of social media platforms through a multistakeholder approach must be accompanied by nuanced approaches in the form of both hard and soft law, that is, broadly speaking, both governmental measures and non-governmental measures.

I. TERRORISM AND SOCIAL MEDIA

“Unlike traditional media . . . in which only a [select group] of established institutions disseminates information[,] . . . social media [platforms] enable[] anyone to publish or access information [instantaneously].”8 This enabling power of social media platforms can give voice to those who traditionally had no platform on which to voice their opinions. However, this same enabling power can also be misused and give voice to those whose opinions, or specifically, extremist narratives, can do more harm than good.9

A. Social Media and Its Appeal

It is undeniable that social media has become a major platform on the Internet that allows users to view and share information in “real time.”10 Specifically, social media platforms in the form of social networks, such as Facebook, Twitter, and YouTube, enable its users to view any content they are interested in, and likewise, to share any content they are interested in with not only a limited audience of their choosing, but also with a global audience.11 Furthermore, social media platforms are appealing to users because of the ease with which users can share content, including, but not limited to, images, videos, or messages.12 This ease of sharing such content is facilitated by various factors such as the “accessibility” and “interactivity” of social media platforms and the little to no restrictions imposed on users when creating accounts or posting content.13

In addition to these advantages of social media platforms, there are also psychological aspects as to why users are drawn to social media platforms.14 By granting users nearly absolute discretion in posting about a subject matter of their own choosing, social media platforms encourage self-expression, which consequently promotes the user’s sense of self-affirmation.15 Also, social media platforms emphasize users’ “social connections”16 with seemingly like-minded people around the world when users are able to interact with other users by viewing status updates, tweets, or images and then “liking” or “commenting” on other users’ content.17 In other words, users are able to belong to niche communities that they might not have otherwise found outside of social media.18 Lastly, users may feel empowered on social media platforms because, unlike in traditional forms of media, where only a select group of people such as journalists or reporters have a voice, social media platforms allow anyone, from an ambitious teenager to a retired teacher, to have a say on the current affairs of the world.19

B. Social Media as a Platform for Terrorism

The “growth and communicative power”20 of social media platforms have not gone unnoticed by terrorist groups.21 Rather, terrorist groups have fully adopted the advantages of using social media platforms since these platforms “are by far the most popular with their intended audience, which allows [previously hidden] terrorist organizations to be part of the mainstream.”22 A chilling example of when terrorists began to realize how social media platforms can help disseminate their ideologies into the mainstream “was outlined in a jihadi online forum[, which] call[ed] for [a] ‘Facebook Invasion’”:

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† Janice Yu received her J.D. (Equivalent) from the Handong International Law School in 2017. She also received her B.S. from the University of California, Irvine in 2013.

1 Press Release, Security Council, Security Council Presidential Statement Seeks Counter-Terrorism Committee Proposal for ‘International Framework’ to Curb Incitement, Recruitment, U.N. Press Release SC/12355 (May 11, 2016) [hereinafter Press Release 2016] https://www.un.org/press/en/2016/sc12355.doc.htm.

2 See Gabriel Weimann, New Terrorism and New Media, WILSON CTR. COMMONS LAB 1, 3 (2014), https://www.wilsoncenter.org/sites/default/files/STIP_140501_new_terrorism_F.pdf.

3 See id. at 1–2.

4 See id. at 3.

5 Bruce Hoffman, Foreword to GABRIEL WEIMANN, TERRORISM IN CYBERSPACE: THE NEXT GENERATION at xi, xii (Woodrow Wilson Ctr. Press 2015).

6 See Press Release 2016, supra note 1.

7 S.C. Res. 2253, ¶ 22 (Dec. 17, 2015).

8 Weimann, supra note 2, at 2.

9 See Shannon Green, Changing the Narrative: Countering Violent Extremist Propaganda, CTR. FOR STRATEGIC & INT’L STUD. (Sept. 25, 2015), https://www.csis.org/analysis/changing-narrative-countering-violent-extremist-propaganda; Shaukat Warraich, Tackling Online Hate Requires a Collaborative Approach, HUFFPOST: THE BLOG (U.K.) (Apr. 5, 2017), http://www.huffingtonpost.co.uk/shaukat-warraich/tackling-online-haterequ_b_16392310.html.

10 See SOC. MEDIA GUYS, THE COMPLETE GUIDE TO SOCIAL MEDIA 14 (2010), https://rucreativebloggingfa13.files.wordpress.com/2013/09/completeguidetosocialmedia.pdf

11 Manasa Boggaram, 4 Ways to Reach a Global YouTube Audience, Promolta Blog, http://blog.promolta.com/4-ways-to-reach-global-youtube-audience/.

12 Catriona Pollard, Why Visual Content Is a Social Media Secret Weapon, HUFFPOST: THE BLOG (May 12, 2015, 6:08 PM), http://www.huffingtonpost.com/catriona-pollard/why-visual-content-is-a-s_b_7261876.html.

13 Farzana Parveen Tajudeen et al., Role of Social Media on Information Accessibility, 8 PAC. ASIA J. ASS’N FOR INFO. SYS. 33, 34–35 (2016) (discussing the “impact of social media on information accessibility” and how interactivity positively influences usage of social media in organizations).

14 See Catalina L. Toma & Jeffrey T. Hancock, Self-Affirmation Underlies Facebook Use, 39 PERSONALITY SOC. PSYCHOL. BULL. 321, 327–28 (2013), https://blogs.cornell.edu/socialmedialab/files/2014/01/2013-Toma-Hancock-Self-affirmation-underlies-Facebookuse.pdf (discussing self-affirmation theory, how self-affirmation functions work in everyday environments, and the revealing psychological factors underlying Facebook use).

15 See id. at 322.

16 Id. at 328.

17 See Social Media Best Practices, TUFTS UNIV. OFF. OF COMMC’NS & MKTG., http://communications.tufts.edu/marketing-and-branding/social-media-overview/social-media-best-practices/ (last visited Sept. 23, 2017).

18 See Larry Alton, Niche Social Networks Rise as Alternatives to Mainstream Platforms, SOC. MEDIA WK. (June 6, 2014), https://socialmediaweek.org/blog/2014/06/niche-social-networks-rise-alternatives-mainstream-platforms/.

19 Since the advent of social media platforms in 2002, social media has been increasingly successful in attracting users from all around the world. See The History of Social Networking, DIG. TRENDS (May 14, 2016, 6:00 AM), https://www.digitaltrends.com/features/thehistory-of-social-networking/. In the U.S. alone, there has been a nearly tenfold jump, from 7 percent in 2005 to 65 percent in 2015, in the number of adults who use social media platforms (76 percent of Americans in total use the Internet). Andrew Perrin, Social Media Usage: 2005-2015, PEW RES. CTR. 2 (Oct. 8, 2015), http://assets.pewresearch.org/wp-content/uploads/sites/14/2015/10/PI_2015-10-08_Social-Networking-Usage-2005-2015_FINAL.pdf. Research from 2016 shows that nearly 79 percent of online Americans use Facebook, 24 percent use Twitter, and 32 percent use Instagram. Shannon Greenwood et al., Social Media Update 2016, PEW RES. CTR. 3, 4 (Nov. 11, 2016), http://assets.pewresearch.org/wp-content/uploads/sites/14/2016/11/10132827/PI_2016.11.11_Social-Media-Update_FINAL.pdf. The number of social media users is expected to rise, not only in the U.S., but across the globe.

20 Hoffman, supra note 5, at xii.

21 See Weimann, supra note 2, at 2.

22 Id. at 3.

ABSTRACT

In June of 2015, a young South African girl named Zizipho Pae (“Zizi”), who was the Acting President of the Student Representative Council (“SRC”) of the University of Cape Town (“UCT”) representing a student body of approximately 27,000, posted as follows on her personal Facebook page: “We are institutionalizing and normalising sin. May God have mercy on us.” Even though the post did not say this explicitly, her post was intended as a response to Obergefell v. Hodges. In protest, members of the University’s Queer Revolution broke into her office and, among other things, vandalized it, then took off their clothes, took pictures, and posted them on her Facebook page. They also filed a “hate speech” complaint against her with the University and reportedly also with the South African Human Rights Commission, had her expelled as member of the SRC without proper reasons or process, and almost got her scholarship revoked. The group quickly accomplished all of this despite the fact that there is a cut and dry right to the freedom of speech and expression in the South African Constitution. After requesting the University to review the SRC’s decision to expel her, the Vice-Chancellor of the University reinstated Zizi as member of the SRC because her post was protected by the Constitution. However, what if Zizi had been a student at a university in the United States? Could she be removed, prosecuted, or expelled for her statement on Facebook?

Oliver Wendell Holmes once said, “The best test of truth is the power of the thought to get itself accepted in the competition of the market and that truth is the only ground upon which their wishes safely can be carried out.” Freedom of speech has long been a stalwart principle that has kept the United States the most powerful nation in the world, but in recent years, anti-discrimination, harassment, and hate speech codes within public university student handbooks have severely limited students’ freedom of speech and expression and have threatened that foundational freedom. This Note suggests that current case law in the United States is not strong enough or clear enough to protect students’ right to freely exchange beliefs in the free marketplace of ideas because oftentimes university policy will either trump a student’s constitutional right or unconstitutionally punish students for constitutional speech because university administrators are ignorant of the law. This Note also proposes an alternative framework and solution that allows for courts to balance both the university’s authority to limit speech according to legitimate pedagogical concerns and the students’ right to freely express themselves and exchange ideas as they should so see fit. Incorporating a clear framework in student handbooks and in case law that honors this balance according to the law will promote consistency, reliability, and objective analysis by reviewing disciplinary hearing boards and courts, and will ultimately ensure an appropriate balance between the freedom of speech and university interests.

INTRODUCTION

In response to a United States Supreme Court case, 1 a young South African girl named Zizi Pae posted a thought on her Facebook wall just like she did most every other day: “We are institutionalizing and normalizing sin! . . . May God have mercy on us.”2 Then, June 28, 2015 turned into a quite unordinary day for her. Zizi was the acting President of the Student Representative Council (“SRC”) of a student body of almost 27,000. 3 A few hours after she posted, her office was broken into by members of the campus group Queer Revolution, 4 had her Scriptures ripped off the walls,5 and had semi-naked pictures of the members in her office posted on her Facebook page with the caption “[We are] [b]ringing sin into the Holy SRC [office] of Zizipho Pae.”6

The University of Cape Town Queer Revolution (“UCTQR”) demanded Zizi’s resignation “on account of her queer antagonistic bigotry,” 7 so the SRC immediately removed her from her presidential duties and then attempted to hold a formal hearing on the matter.8 The hearing unfortunately dissolved into a shouting match at which members of the Lesbian, Gay, Bisexual, and Transgender Plus (LGBT+) community took their clothes off and commanded the chairman to rule in their favor,9 so the chairman adjourned the meeting and left the room. Unabated, the remaining members quickly replaced him with a newly elected chairman, and the members voted to dismiss Zizi from the SRC without following proper due process procedures and without giving her a chance to testify on her behalf according to those same procedures. 10 The UCTQR immediately filed a complaint against her with the Human Rights Commission,11 and a lobbying push began with the goal of seeing Zizi lose her scholarships to the university. 12 She was called an “idiot,” a “homophobe,” an “ignorant b****”,13 and received hundreds of hate mail messages in her Facebook inbox. 14 Then a Member of Parliament, Mr. Marius Redelinghuys, began to speak out against her and demand that she retract her statement through “a long series of mocking, insulting and other pro-homosexual messages which amount[ed] to harassment.” 15

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†B.A. 2011, Furman University; J.D. 2017, Regent University School of Law.
1 Michael Gryboski, ‘May God Have Mercy on Us,’ Says Christian Cape Town Student Forced Out of Leadership Role for Facebook Comment Opposing Gay Marriage, CP WORLD (July 28, 2015), http://www.christianpost.com/news/may-god-have-mercy-on-us-says-christian-cape-town-student-forced-out-of-leadership-role-for-facebook-comment-
opposing-gay-marriage-142005/. Obergefell v. Hodges, 135 S. Ct. 2584, 2619, 2642–43 (2015), legalized same-sex marriage within all jurisdictions in the United States.
2 Zizipho Pae, FACEBOOK (June 28, 2015), https://www.facebook.com/zizipho.maduna/posts/1146044868755871.
3 Statistics, U NIV . OF CAPE T OWN, http://www.uct.ac.za/about/intro/statistics/ (last visited Dec. 22, 2015) (noting the total number of students enrolled as of 2014).
4 UCT Student Leader Victimised Over Christian Viewpoint on Same-Sex Marriage, GATEWAY N EWS (July 2, 2015), http://gatewaynews.co.za/uct-student-leader-victimised-over-christian-viewpoint/.
5 Christian Student Threatened for Opposing Gay Marriage on Facebook,
CHRISTIAN INST. (July 16, 2015), http://www.exministries.com/christian-student-threatened-for-opposing-gay-marriage-on-facebook/.
6 Ra’eesa Pather, UCT Queer Community Sets Its Sights on Pae, THE DAILY VOX (July 3, 2015), http://www.thedailyvox.co.za/uct-the-queer-movement-has-been-born/; see Carlo Petersen, UCT Homophobe Gets Booted Out, IOL CAPE TIMES (July 23, 2015), http://sbeta.iol.co.za/capetimes/uct-homophobe-gets-booted-out-1889325.
7 Id.
8 UCT SRC, FACEBOOK (June 30, 2015), https://www.facebook.com/uct.src/photos/a.905100332874551.1073741833.895318217186096/94797093525417/.
9 Freedom of Religion S. Afr., My Story by Zizipho Pae-Part II, Y OUT UBE (Aug. 11, 2015), https://www.youtube.com/watch?v=HTMuJJlIrTY [hereinafter FORSA].
10 UCT SRC, SRC Minutes from the 21st of July 2015, F ACEBOOK (July 21, 2015), https://www.facebook.com/uct.src/photos/a.962140463837204.1073741838.895318217186096/962140477170536/?type=3&theater.
11 Carlo Petersen, UCT Homophobe Gets Booted Out, IOL C APE T IMES (July 23, 2015), http://sbeta.iol.co.za/capetimes/uct-homophobe-gets-booted-out-1889325.
12 Pather, supra note 6.
13 Andre Viljoen, Christian Leaders Speak Out Against Victimisation of “Expelled” UCT Student Leader, GATEWAY NEWS (July 23, 2015), http://gatewaynews.co.za/christian-leaders-speak-out-against-victimisation-of-uct-student-leader/.
14 Freedom of Religion S. Africa, supra note 9.
15 Carlo Petersen, DA MP’s Comments ‘Unacceptable’, IOL CAPE T OWN (July 28, 2015, 2:23 PM), http://sbeta.iol.co.za/news/politics/da-mp-s-comments-unacceptable-1891827.

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.

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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!”).

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