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Russia’s stance should come as no surprise

Dinkus of Darren Kane in Sydney.16th August 2013Photo: Janie Barrett Photo: Janie Barrett JEMLaw is not a science. Its practice involves the dark art of answering vexed questions: just as it is a compelling proposition that the AFL must bear its formidable teeth at Essendon for its alleged role in marking this year as the sport’s annus horribilis lest the integrity of the competition be tarnished; in equal measure it seems premature and unusual to seek to sanction James Hird, or anyone else, absent finalising the very investigation that serves as the evidentiary bedrock for the charges laid.

Playing devil’s advocate, and taking up unpopular or absurd arguments, do however have their limits. In an effective reversal of its 1993 decriminalisation of homosexuality, Russian President Vladimir Putin gave his final assent earlier this year to a raft of new national laws including establishing unfettered powers for police to arrest and detain tourists and foreign nationals suspected of being homosexual or ”pro-gay”; introducing a deliberately imprecise prohibition against the distribution of ”propaganda of non-traditional sexual relations” to minors (thus federalising the laws already enacted in parts of Russia as early as 2006); and placing a blanket ban on the adoption of orphans by Russian gay couples or any person from any country in which marriage equality exists.

The Russian government has in recent weeks most helpfully clarified that it will apply these new regulations during the 2014 Winter Olympics, and hence will not hesitate to arrest anybody suspected of violating the laws.

Russian Sports Minister Vitaly Mutko has, perhaps in his own inimitable way, sought to temper any fears in saying ”an athlete of non-traditional sexual orientation isn’t banned from coming to Sochi”.

Looked through any prism, Russia’s laws are a throwback to wicked Stalinist policy. This toxicity is though viciously amplified by the illumination of the sporting spotlight. These are heady times for Russia as an international host.

Moscow is now hosting the athletics world championships, which conclude on Sunday. Since hosting rights were awarded to Sochi in 2007, Putin has spent a mere $52 billion preparing to host the world’s best winter athletes next year. In five years’ time, Russia plays host to the FIFA World Cup.

Outgoing IOC president Jacques Rogge has in recent weeks and by equal measure both sought that Russia clarify what its laws mean, and lamented that the regulations pose more of an interpretation issue than anything else.

Rogge is adamant the laws will have no effect on the Games, as if such a reassurance is an antidote to the problem. Alas, the power of gentle words and quiet diplomacy to quell absurdity and the fear the parents of young athletes might harbour for the safety of their children competing in Sochi.

There is utility in the IOC reminding itself of its own Olympic Charter, which operates as the constitutional spine of the Olympic movement, the constituency of which includes both the Russian Olympic committee and the Sochi organising committee. In the quintessential motherhood statement, the Charter’s fundamental goal is to place sport at the service of the harmonious development of humankind, with a view to promoting a peaceful society concerned with the preservation of human dignity.

The Charter codifies principles that include the right of each individual to practice sport free from discrimination of any kind, such prejudice of whatever kind expressed as being incompatible with belonging to the movement.

For each city awarded the right to host an Olympic Games, the Charter requires the national government of that country to submit to the IOC a legally-binding instrument undertaking and guaranteeing that the country, and its public authorities, comply with and respect the Olympic Charter.

The IOC retains the right, at any time and without recourse to compensation, to withdraw the right of a city to organise and host an Olympics in the event of non-compliance with the Charter or any other IOC regulation or instruction.

If you can quote the rules, you can obey them. How the IOC handles matters, between now and February, will be illustrative as to whether the Olympic Charter is just empty rhetoric. Russia’s legal position sits in hopeless conflict with the undertakings given to the IOC.

Hollow promises that nobody is banned from Sochi, or even that the laws will not apply to Olympic athletes and spectators so long as they behave, fail to address the central abhorrence of the laws per se.

The invidious reality though is that any step by the IOC to move the Games, or by nations or individual athletes to boycott Sochi, will probably have an impact analogous to that of both the boycott of the 1936 Berlin Olympics by individual Jewish athletes, and the refusal of more than 50 nations to take part in the USSR’s 1980 Moscow Games.

Neither stance had any real influence on the perverse policies of the Third Reich or on Soviet foreign policy in Afghanistan. Although the impending Games has served to focus attention on Russian domestic policy, the real issue is far wider than mere guarantees over non-disruption of the Olympics and how Russia’s laws affect those attending the Games.

After the Games, the 7000 Olympic and Paralympic athletes, the world’s media, the volunteers and all the spectators all have to go home, perhaps to a place where the laws are even more medieval. The unfortunate, unfathomable truth is that Russia is hardly a lone wolf state.

Dotted around the globe is a veritable United Nations of more than 75 jurisdictions where it is, in essence, illegal to be gay. Places as diverse in culture as Barbados, Papua New Guinea, Nauru, Qatar and Malaysia; whose laws prescribe penalties including jail, corporal punishment and death. The IAAF’s Senegalese president Lamine Diack has this past week gently suggested that the Russian laws demand ”respect”. In Senegal, homosexuality is a crime.

Has Putin taken the IOC by surprise? In 2011, the United Nations Human Rights Council passed the first resolution approved by any UN body on the human rights of homosexuals and minority groups. The vote of the 47 member states passed the resolution by a narrow majority. Two of the UN Council members were Russia and Senegal. Guess how they voted.

Darren Kane is a sports lawyer based in Sydney.

Twitter: @sportslawyer7

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