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

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

Published on July 7, 2017        Author: 

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”.

Print Friendly

Related posts

 

13 Responses

  1. Jakob Cornides Jakob Cornides

    Is it still allowed to dissent from what during the last ten years has become the fashionable mainstream view?

    I do not view judge Dedov’s views as particularly illiberal. In a liberal society, people are allowed to hold diverging views on controversial issues – and it seems obvious, that judge Dedov is right that some balancing out is needed.

    It is the opposing view (no balancing out necessary, because views that do not conform to “Western mentality” are “indefensible”), that is decidedly illiberal.

    If I have not misread the judgment, the Russian law at question does leave leeway for LGBT groups to exhibit their views and life-styles in the public square – but perhaps not directly targeting other people’s minor-aged sons and daughters. Is that really so unacceptable a restriction?

    “Not everyone’s morality can be made to comply with human rights, and some will be upset.”

    “Human rights is also universal.”

    These are rather strange statements. It would be interesting to understand what the author really means to say with the term “human rights”. As to universality, one could agree with him if he meant that which traditionally was described as “Natural Law”, i.e. the concept of a law that is inscribed in nature and discernible through human reason. But looking at where he seeks to draw authority for his views, it seems to me that his concept of human rights is in reality rather political, based on legal positivism. If that is so, one does not see why everyone should subscribe to it.

    Article 28 of the Convention on the Rights of the Child (children’s right to education): while it is usually self-styled “progressives” who insist on the desirability of “sexual education” programmes at school (see the European Parliament’s defeated “Estrela Report, and many further such reports that the EP has adopted) , bizarrely they seem at the same time very much opposed to the idea that such education should be in any way value-oriented, i.e. ordained towards helping children to develop a mature sexuality and to form stable families. Instead, the “education” to be provided is purportedly “value neutral”, with the core message that all and everything is “equal” and equivalent. Is this really education?? I think that Dedov’s point is particularly convincing on this point. When inside the school children are taught that 2=2=4, one does not really want to have the representatives of “alternative arithmetics” waiting for them outside on the way home, challenging them with slogans like “don’t believe your teachers” or “2+2=5”.

    “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.”

    Precisely not. While the Court is quick in demanding “evidence”, it fails to produce such evidence for its own findings.

  2. Gabriel Armas-Cardona

    Dear Jakob,

    I’ve seen some of your back-and-forths with Marko on previous posts regarding LGBT rights; I doubt we’re going to come to any sort of agreement. Regardless, I’m still happy to further articulate my points.

    1) Is dissent allowed?

    Dissent is absolutely unquestionably allowed. Everyone is free to think whatever they want for whatever reason they want (there’s even backed up by Article 9 of the EConnHR).

    What is not allowed is for States to create policy for whatever reason they want. State policy must have some reasonable, non-discriminatory basis. The breadth of that basis varies within domestic systems. For the sake of discussion, let’s say that basis is that it must comply with the EConnHR.

    2) “Not everyone’s morality can be made to comply with human rights, and some will be upset.” & “Human rights is also universal.”

    The purpose of this section is to say that human rights law creates an objective, universal standard applicable to States. I do not intend any grand significance, just recognition of how human rights systems interject themselves into State policy. But, let me narrow myself down to be more concrete. For universality, I mean applicable to all countries within the ECHR’s jurisdiction. This is a view based in legal positivism but it’s pretty unassailable as States choose to enter the ECHR’s jurisdiction (by joining the CoE).

    3) Right to education & sexual education
    Your example gets to the heart of why I wrote this post. There _may_ be some legal argument one can make using Art. 28 to challenge the content or purpose of sexual education. But Judge Dedov doesn’t articulate any reasoning. He simply makes the reference with a conclusory statement. I believe he _can’t_ provide any reasoning because his reference is an attempt at a post hoc justification. While he likely earnestly believes in his view, he can’t find legal support for it. This, I believe is the weakness of the illiberal world view when under scrutiny in any international tribunal.

  3. Jakob Cornides Jakob Cornides

    Gabriel :

    I believe what sets Marko (and you) and me apart is not the specific issue of LGBT rights but more broadly our understanding of human rights.
    I can understand that as a professional “LGBT Rights” activist you must be happy about the Bayev judgment (which have every right to be), and troubled about voices of dissent, if only by one judge out of seven. Perhaps you are even more troubled about the fact that in some countries – in fact quite many – the broader population does not go along with the ECtHR’s interpretation of human rights. And if you widen the outlook to include the views that have been held all of the time and everywhere (instead of just the US and Western Europe in the last 5-10 years), then your claim for universality looks even more questionable.

    Yes, I believe in the universality of Natural Law, which is – I think – the more appropriate term for pre-positive moral laws that apply everywhere and at all times, and which we expect everyone to accept and respect. But human rights law is, above all, positive law. Its purpose is to express and – to a certain extent – codify Natural Law. By necessity, this will always remain incomplete and at times fallible. You are right in saying that States subscribe to the ECHR, and to the judicial authority of the ECtHR voluntarily. But obviously, given that the ECtHR consists of fallible human being, does that not imply that one will always have to accept that a certain number of its decisions can be … shall we say … somewhat misguided?

    In a case like Bayev, you have a conflict of legitimate rights claims. Although I don’t agree on their views on LGBT, I do agree that the applicants should enjoy the freedom of expression. And I think so does the Russian Government (although obviously in a broader sense there are problems regarding precisely that right in Russia), and so does judge Dedov. However, other people have rights too, and there is nothing “illiberal” in recognizing that. As far as I am concerned, I am liberal enough to accept that parents have a very legitimate interest in not wishing the Bayev’s and Others’ LGBT-campaigning to be targeted specifically at their children. And I don’t think they even need to specifically justify this, or adduce scientific evidence that their children might be “enticed to adopt a gay lifestyle”. (Actually, I don’t believe that either. The natural reaction of children to exhibitions of homosexuality is that most of them find it repulsive.)

    The case probably raises more, and more complicated, questions than you (and the previous post) have been raising. Upon reading the judgment, my feeling was that the Russian authorities arguably have in some instances applied the law more strictly than might have been appropriate – and it would therefore have been meritorious to assess in each single instance precisely what the campaigners’ message was, and how it was expressed. But the problem with the ECtHR Decision precisely is that no such assessment was made, because the majority of judges appears to believe that one rights claim is absolute and the other subordinate, so that no balance is needed.

    Bottomline: your view (and that of the ECtHR majority) seems to be that the LGBT community’s right to feredom of expression supersedes the rights and interests of everyone else. I don’t believe that such a view is widely shared, and even less can I see how it can be “objective” or universal”.

  4. […] ARMAS-CARDONA enters the fray about the European Court of Human Rights' decision on the Russian "gay propaganda" law and examines the dissenting opinion as a "window into a non-Western world view". We will […]

  5. Christian Perrone

    Hi,

    I think your discussions are fascinating! It’s been quite a while that I have been pondering about all those themes. I myself believe that the result of the case is right and conforms with Human Rights standards. My question – and in that I may aline with some which are considered “conservatives” and maybe even “illiberals” – whether the Courts reasoning is being correctly read. I agreed with the author of the post that International Human Rights, if they are to be considered law, have to be objective. A difficulty arises when one considers how to identify properly the standards applicable.
    In my view, international human rights are by definition and by application international law. As such, its standards develop as that field of law develops, i.e. through practice and opinio juris. The distinctive trace of IHR is that they do not only look outwards – meaning acts that have effects outside the jurisdiction of a State; it does have, by its own dynamics, to look inwards – to what States do within their own juridical systems. Hence, IHR standards develop through the inward and outward practice of States as regards specific topics.
    When a country decides to join a HR System, it agrees to stand by the collective development of HR protection that the system will built. This means not only what Courts and Commissions state,but what is agreed tacitly or explicitly within that System.
    In practice, this means that if there is strong practice and opinio juris or strong opinion juris and practice, the recalcitrant State has to abide by this majority. In other words, the astonishing majority of States in the European Human Rights System do have a practice that condemns the type of discrimination connected to freedom of expression Russian Law provokes.
    This is the only objective observable way that IHR standards can be extracted any other way will mean abiding to a metaphysical view of the world not condoned by the field of law that is intended to be applicable.
    Thus, the reasoning of the European Court must be read as the identification of the agreement – concurring practice and opinio juris – of States members of the European HR System that such restriction of the freedom of expression are discriminatory.
    It may underly a liberal view, or not, what is important is the actual concurring practice and opinio juris of the States’ members of the system.

  6. What I find most surprising in the interchange between Gabriel and Jakob is the absence of what we in America call “legal realism”, the idea that law is simply politics plus obfuscation. For most law professors over here, especially those who call themselves “progressives”, the debate between natural law and positivism ended almost a century ago. While the vast majority of us would certainly support the majority in the Bayev decision, we would view it as a political triumph having little or nothing to do with rules. Traditionalists are crushed because they are weak, not because they have objectively wrong values or are illogical.

  7. Edward

    Dear Gabriel,

    Thank you for your interesting post.
    I am still wondering how law can be objective. What exactly do you mean by “objective”?

    Kind regards,
    Edward

  8. Gabriel Armas-Cardona

    Dear Jakob,
    Sorry, but I have no interest in discussing natural law versus positive law. As I said, that discussion is unnecessary in this case as countries willing put themselves within the ECHR’s jurisdiction. As for your final sentence, yes judges are fallible, but that point is not illuminating.

    I mentioned in my post that the majority and the dissent go in very different directions. The majority clearly didn’t see a balancing right, merely a state interest. The state interest was not enough to justify the interference. If you feel you can make a stronger legal defense than Judge Dedov did, I encourage you to write an article articulating it. Such an article would refute my central thesis and would be educational for me.

    Courts regularly consider whether a challenged law should be challenged facially or as applied. Here, the majority viewed the as applied challenges as “secondary to the question of necessity of such laws as general measures.”

    Dear Christian,
    Thank you for your comment. Your comment generally aligns with my post, but your question of how to identify the standards is interesting. Unfortunately, I don’t believe there can only be one answer. This case took place in the ECHR. Even if your “practice and opinio juris” is correct here, there is no reason to believe that other regional courts use the same techniques as the ECHR.

    However, I have doubt about half of your answer. I think the “State practice” is on point. People have written of the ECHR’s “age of subsidiarity” where it relies heavily on state practice to determine a “European custom”. The part I have doubts about is the opinio juris. While that is a core tenet of developing customary international law, I don’t see it as playing much of a role here. Many States promote rights through both domestic legal requirements (arguably a form of opinio juris) and political change. Liberal Germany just allowed same-sex marriage not because of a sense of legal obligation but through the political process. While the ECHR hasn’t said that same-sex marriage is required under the Convention, I’m sure the ECHR will mention Germany to show the developing State practice in favor of same-sex marriage.

    Dear Richard,
    The first draft of this post was more activist in nature (e.g. I discussed how unlikely Russia is to change from this ruling as it uses homophobia to align border states with Russia and away from the West). But this is an academic blog that expects more emphasis on doctrine.

    But, I’m a little suspect with the promotion of legal realism (at least how you defined it). Couldn’t nearly every judicial decision be explained away as “a political triumph having little or nothing to do with rules”? How do you have a rigorous analysis of judicial opinions when you don’t consider the opinions to be rigorous?

    Dear Edward,
    Law is objective in that ultimately someone can be said to be correct or incorrect when interpreting a law. Unquestionable, even a moderately ambiguous law can lead reasonable people to disagree with what it means. But it’s not possible for everyone’s interpretation to be correct, i.e. law is not subjective. Court is where we see this most strongly as a judge decides which party is correct and which is incorrect.

    Of course, none of this is to say that Law is inherent or naturalistic. It’s still a man-made device, just an objective one.

  9. Jakob Cornides Jakob Cornides

    Gabriel:

    nobody can oblige you to enter into a discussion you apparently are not prepared for. You don’t need to – but I think this does not invalidate, but indeed rather confirms, the point that I and others have made.

    Your position looks like some kind of sub-standard legal positivism: the law is “objective” if and when some law-maker has “made” it and provided that its meaning is not unclear. In that sense (but only in that sense) the recent decision in Germany to re-define marriage can be called “objective”, because we all know what “two persons of the same or of different sex” means.

    In that sense the Russian “anti gay-propaganda” law is somewhat more “objective” than any of the provisions of the ECHR.

    But in the same sense a law legalizing slave-trade, or the Nuremberg Laws, could also be called “objective”…. Is then “objectivity” really what confers moral authority to a law? And if a law has little moral authority, is it then not simply an instrument used by those in power against those not in power? It would be a pity if law were not more than this.

    Second, that very “objectivity” is precisely what stands in question when judges, however their authority may be founded, infer a meaning into a law that it arguably does not have. They may be right in doing so or not – however what confers authority to their judgment will be not only their prestige as judges, but the quality of their arguments.

    It seems to me that Richard above has very well summarized the legal philosophy that underpins your post.

  10. Edward

    Dear Gabriel,

    Thank you for your reply. However, I now find the point you make in your piece rather contradicting.

    You say that courts are the strongest evidence for the objectivity of law, since judges decide which party is correct. If however the majority of judges in the ECtHR were socialised similarliy to Judge Dedov, the decision would have probably turned out differently. Would it then be your opinion that what this fictious bench of Judge Dedov like socialised judges found and decided is objective law? It seems to me as if you point towards the objectivity of law because a decision was reached with favours your personal point of view.

    To me Law (and its interpretation) is about context. The plain letter of a convention (which in itself is the product of a rather intense battle of subjective interests, motives and views)gains meaning through the process of interpretation, which can hardly be separated from the particular view of the deciding jundge (or why is the composition of a bench such a delicate issue?). After having read the heading and the opening paragraph I hoped that you would discuss the very limits of law in pacifying different (or even opposing) world views.

    And if indeed the objectivity of law is proven by decisons of courts how then should we treat dissenting opinions? Is referencing the rules of a court, which might favour majority decision, enough? Why then, as you did, even engage and discuss dissenting opinions? Because they (also) can hint to a different (or even oppsosing) world view. It even may help in perceiving law as a cultural phenomenon, which cannot be understood outside the relevant context.

  11. Gabriel Armas-Cardona

    Dear Jakob,
    You have a strong opinion about positivism, but I don’t see its relevance to this situation. I’m assuming you accept that Russia is bound to the European Convention on Human Rights and the ECtHR’s interpretation of that Convention. If so, is your statement regarding how the Court should interpret the Convention? The Court has been interpreting the document since 1959 and has developed a rich jurisprudence filled with a number of approaches and canons of interpretation.

    As for your comment on objectivity. My point in that section is that law, including human rights law, is not subjective. This section makes no claim as to its moral content (which, I do note, exists in human rights law much more prominently than in other parts of law). To expressly answer your question “Is then “objectivity” really what confers moral authority to a law?” No, it does not.

    “[I]f a law has little moral authority, is it then not simply an instrument used by those in power against those not in power?” This is a much larger question that cannot be answered in a blog post. A summary of my view is that I believe human rights law, despite its problems, to be one of the greatest tools ever created to protect the weak and the minority in every society. A large part of its power (and a large part of its weakness) comes from its moral content. If your question is what is the moral source of human rights law, I haven’t researched that enough and cannot provide a satisfactory answer.

    Dear Edward,
    This is a great post. Instead of using your hypothetical, let me use a case that just came down. On Tuesday, the ECtHR said in Belcacemi and Oussar v. Belgium that Belgium’s ban on wearing clothing that partially or fully covered the face (a “burqa ban”) did not violate the Convention. I politically disagree with this result. I also believe I can make a decently strong legal argument based on international human rights law. But when it comes to interpreting the Convention, the ECtHR is right and I am wrong. I and others can try to find legal fault with their reasoning, but until that happens, their interpretation stands as the correct one.

    This then leads to your question regarding pacifying different views. The first draft of this post touched on this point. In short, I don’t think court decisions pacify other views; they railroad them. Along the lines with the previous paragraph, liberal American lawyers have had to come to accept Heller (which constitutionalized an individual’s right to own guns) as the law. I may politically oppose it, but it is quickly becoming settled law.

    As for your last question, I think it hints at a difference in understanding between us. I’m responding regarding a post on an academic, legal blog. I am narrowing the scope and length of my responses to match the medium of discussion. To answer your question broadly, dissents can express whatever the dissenting judge wants to express, which can include alternative world views. To answer your question narrowly, the role of dissents is to show fault in the majority’s reasoning that can act as a seed to later supplant that reasoning with something new. The point of this post is not to discuss at length the different world views but to focus on just one aspect of the conflict of the liberal and illiberal world views: illiberal policy is often not developed on reasoned grounds and thus is hard (and sometimes impossible) to mesh with the human rights system that is underpinned by individual liberty and rights.

  12. Jakob Cornides Jakob Cornides

    Dear Gabriel,

    my intention was not to extend this exhange unreasonably. But you are asking questions, and I think I should answer them.

    Russia is a country with serious human rights issues that reach waaaay beyond the rather marginal question of whether the LGBT-lobby´s freedom of expression, which as such does not seem to be under threat, comprises the right to specifically use minor children as targets for their propaganda.

    I think the ECHR is as such a very well-drafted document, and we all should be glad that Russia has signed up to it. Russia also has accepted the ECtHR’s jurisdiction – but of course a country that submits to such a treaty monitoring body (TMB) is, as the expression goes, buying a pig in a poke. Thus, when the TMB’s decisions become too surprising and stray too far away from the Convention’s intended meaning, it is perfectly legitimate for a country to silently disrespect its findings, or to loudly protest, or even – rebus sic stantibus – to opt out.

    The problem with the ECtHR is that many of its decisions provide a fine pretext for doing so – which is a shame, given the fine work that the Court also does.

    What I found interesting in your peace was not so much the social agenda that appears to underpin it, but your use of the word “objectivity” – and I think this is whereyou really got it wrong. But indeed the (alleged or real) “objectivity” of the law, or of a law court, is an important question on which I can only encourage you to further reflect or discuss.

    Some distinctions will, however, be necessary.

    Imagine that next week President Trump issues a new decree saying “Whoever enters the territory of these United States illegally will be hanged”.

    From a positivistic point of view (and it seems to me this is the one you sympathise with) it seems difficult to argue that this law isn’t “objective”: it is quite clearly worded and leaves little room for divergent (subjective) interpretations. (I am obviously leaving aside the question of compatibility with the US Constituion or international law…). From a Natural Law, perspective, by contrast, it could be argued that the political agenda that the President appears to be pursuing through such a law is grossly deviating from what justice objectively requires: while doubtlessly the US has the right to prevent illegal immigration, the sanction seems grossly disproportionate to the offence; also, there may be specific circumstances that may give rise to a right to illegally enter US territory.

    In the case of Bayev we have an ECHR provision, Article 10, which requires interpretation. However, what the provision OBJECTIVELY – in a positivist sense – says is (1) that everyone should enjoy the freedom to express his opinions, but (2) that this freedom must be balanced out against a number of other things, including i.a. “the interests of national security, territorial integrity or public safety, (…) the prevention of disorder or crime, (…) the protection of health or morals, (…) the protection of the reputation or rights of others”, etc.

    Thus, whoever were to assert that the freedom of expression, and be it of LGBT activists, does not need to be balanced out against those other interests, would be making a claim that is objectively wrong. Even if that were the ECtHR.

    There is yet another side to “objectivity” which I hope to address in a post soon to be published. In the recent ECtHR Decision in the case of Gard and Others v. the UK, which is about the (forcible) “euthanasia” of a (terminally?) ill child against the will of its parents, the UK made the claim (which the ECtHR accepted) that the views of a court-appointed “guardian” on whether the child should be euthanized should prevail over those of the parents because they were “objective”. The question here is whether such “objectivity” has any role to play here, given that the choice of euthanasia is by nature a subjective one (at least it was always passed off as “self-determination”…). In the same vein, one might ask whether Article 10 ECHR does not confer a right to democratic law-givers to make some “subjective” choices. If all laws had to be strictly objective (in the moral, Natural Law sense), what do we need democratic elections for? It would be sufficient to have our laws defined by experts who “objectively” know what is right and what is wrong.

  13. Gabriel Armas-Cardona

    Dear Jakob,

    I concur that our discussion is not leading towards any sort of greater understanding. Russia has the right to complain about ECtHR’s judgments and can leave the CoE if it feels being in the Court’s jurisdiction is too onerous.

    As for most of the rest, I don’t believe we’re using the word objective in the same way. Here is the definition from Webster that I’m using: “of, relating to, or being an object, phenomenon, or condition in the realm of sensible experience independent of individual thought and perceptible by all observers”. As for your hypothetical, Trump’s statement would be objective (not because it was not ambiguous but because it is a part of the domestic legal system) and it would be objectively wrong because it would violate the US constitution. Yes this is more of a positivist perspective, but my point here makes no comment on a law’s moral value (and it’s unquestionable that morality is an important aspect of human rights law). As for your (2), you are correct. The Court reviewed whether the interference was justified on those grounds and found it was not.

    Since we seem to be going in circles, I doubt I will continue the conversation, but feel free to respond if you like.

Leave a Reply

Your email address will not be published. Required fields are marked *