Molding the Matrix: The Theoretical and Historical Foundations of International Law and Practice Concerning Hate Speech

Abstract:     
Although the right to freedom of expression is central to the protection and enjoyment of many other human rights, international law recognizes that this right may be limited in certain circumstances. Indeed, the limitations clauses in human rights treaties have been interpreted to permit restriction of what some have termed "hate speech". In addition, three human rights treaties explicitly require governments to prohibit hate speech - the International Covenant on Civil and Political Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, and the American Convention on Human Rights. What led the drafters of human rights treaties to give governments the power to restrict such expression, and on what theories did they base their decision to do so?

This article explores the history of the prohibition of hate speech in international human rights law and practice, and analyzes the theories that emerge from that history. The sections on drafting history are based on detailed research of the drafting documents. With respect to the Universal Declaration of Human Rights and the Covenant on Civil and Political Rights, it is evident from the records of the UN Commission on Human Rights that many delegates appreciated both the complexity of the issue and the viewpoints expressed by various sides. The drafting history of the European Convention on Human Rights reveals that its drafters laid the groundwork for interpreting Article 10 to allow restrictions on freedom of expression in hate speech and Holocaust denial cases. The history behind inclusion of an advocacy of hatred prohibition in the American Convention on Human Rights has an interesting twist to it involving the conflict then taking place between Honduras and El Salvador.

After examining the international and regional human rights treaties, the paper addresses the question of what sanction is appropriate or permissible under international human rights law for an infraction of an anti-hate speech law. The paper concludes with some thoughts on the divergence of U.S. jurisprudence from international norms.

Keywords: human rights, international, hate speech, race, religion, discrimination, incitement, treaty, Holocaust denial, European Convention, Universal Declaration of Human Rights, covenant

JEL Classifications: J70, K33, K40

Accepted Paper Series