CYIL vol. 14 (2023)

HARALD CHRISTIAN SCHEU

CYIL 14 (2023)

1. The concept of hate speech in major human rights documents It is noteworthy that the concept of hate speech, which today is mainly associated with the use of new online media, has been part of the international human rights discourse from the very beginning. As early as the drafting of Article 19 of the 1948 Universal Declaration of Human Rights (the UDHR), which grants everyone the right to freedom of opinion and expression, the question of possible restrictions on this freedom became the subject of considerable dispute. While the Soviet Union made several attempts to include an obligation to restrict the freedom of expression, the vast majority of Western democracies, particularly the US and the UK, were eager to reject such efforts and to establish a broad scope of protection. 3 In January 1948, when the UN Commission on Human Rights asked the Sub Commission on Freedom of Information and of the Press to “consider the possibility of denying this freedom to publications and other media of public expression which aim or tend to inflict injury, or incite prejudice or hatred, against persons or groups because of their race, language, religion or national origin”, 4 the Sub-Commission decided to delete the limiting clauses from the proposed text. 5 In fact, the final version of Article 19 does not provide for any limitations of the freedom of expression. At a later stage of the drafting procession, attention, therefore, shifted from Article 19 to Article 7 UDHR which deals with the principles of equality and non-discrimination. The Soviet delegation presented a draft calling for the prohibition of, among other things, any advocacy of national, racial, or religious hostility or of national exclusiveness or hatred and contempt. After countries such as the UK, the US, and France had opposed such far-reaching restrictions, the General Assembly eventually opted for of a Belgian compromise proposal stipulating that “all are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination”. 6 The final version treats incitement to discrimination as an element of hate speech but does not explicitly call for a ban on certain expressions. The controversy between Western and Eastern bloc countries flared up again during the drafting process of the International Covenant on Civil and Political Rights (ICCPR). As noted by Jeroen Temperman, the parties discussed at length virtually every word of the draft incitement clause, such as “advocacy”, “religious hostility”, “incitement”, “violence”, and “hatred”. It proved difficult to distinguish, for example, between advocacy and incitement and to differentiate between various emotions such as hatred, ill-feeling, and dislike. 7 While proponents of a broad limitation clause argued that manifestations of hatred should be prohibited even if they do not lead to violence, opponents considered the inclusion of such a clause in a human rights convention inappropriate. They felt that any restriction was likely to be abused by totalitarian states. 8 It is quite understandable that the final version of Article 20 ICCPR presents a political compromise. According to Article 20(2) ICCPR, any 3 MCHANGAMA, Jacob. The sordid origin of hate-speech laws. Policy review , 2011, (170), pp. 45–58. 4 E/CN.4/Sub.1/36. 5 MORSINK, Johannes. The Universal Declaration of Human Rights . Philadelphia: University of Pennsylvania, 2000, p. 67. 6 MCHANGAMA, op. cit., 48–49. 7 TEMPERMAN, Jeroen. Religious hatred and international law: the prohibition of incitement to violence or discrimination . Cambridge: Cambridge University Press, 2016, p. 57. 8 MCHANGAMA, op. cit., 50.

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