CYIL vol. 14 (2023)

CYIL 14 (2023) PROSECUTING “HATE SPEECH” IN INTERNATIONAL CRIMINAL JUSTICE … kinds of speeches. On the other hand, States Parties weigh the impact of these international obligations and provisions within their domestic legal systems. States Parties to the ICCPR have reacted differently to the obligation to ban hate speech within their domestic legal systems. For example, with regards to Article 20 of the ICCPR, some States Parties entered reservations limiting its applicability within their domestic legal systems. They reserved the right not to adopt any legislative measure to implement Article 20 since such domestic laws would inevitably conflict with their protection of political liberties. 40 A good example is the United States which has, arguably, entered the strongest reservations given the fact that the US Constitution protects even “vituperative” and “abusive” language that does not amount to a “true threat” to commit violence. 41 Looking at the reservations to Article 20(1) and (2) of the ICCPR, they come from some of the world’s leading democracies, suggesting that domestic protection of civil liberties is not only important but paramount over the obligation to criminalise specific kinds of speeches. Some of those old democracies include Australia; 42 France; 43 Iceland; 44 Ireland; 45 Luxembourg; 46 The Netherlands; 47 New Zealand; 48 the United Kingdom; 49 and the United States of America. 50 Belgium, on her part, entered a Declaration to Article 20 of the ICCPR. 51 The reactions to the obligations in Article 4 of the ICERD were not different. While most States Parties to the ICERD emphasized in their reservations the need to align Article 4 with 40 United Nations, General Assembly, Human Rights Committee, Reservations, Declarations, Notifications and Objections Relating to the International Covenant on Civil and Political Rights and the Option Protocols Thereto, U.N. Doc. CCPR/C/2/Rev.3, reproduced in Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary, Appendix at 749, 762, 765, 770 (1993) for Australia, Malta, New Zealand, the United Kingdom and the United States respectively. 41 See the case of Watts v United States , 394 U. S. 705, 708 (1969) where it was held that a draft protester’s statement that “if they ever make me carry a riffle the first man, I want to get in my sights is the President”did not qualify as a “true threat”. 42 See Australia’s reservation to Article 20 of the ICCPR at accessed on June 12, 2023. 43 See France’s reservation at accessed on June 12, 2023. 44 Iceland’s reservation to Article 20(1) of the ICCPR: accessed on June 12, 2023. 45 See Ireland’s reservation to Article 20 of the ICCPR at accessed on June 12, 2023. 46 See the reservation entered into by Luxembourg at accessed on June 12, 2023. 47 The Dutch reservation to Article 20(1) of the ICCPR : “The Kingdom of the Netherlands does not accept the obligation set out in this provision in the case of the Netherlands”: available at accessed on June 12, 2023. 48 See New Zealand’s reservation to Article 20 of the ICCPR available at accessed on June 12, 2023. 49 The UK reservation to Article 20 of the ICCPR available at accessed on June 12, 2023. 50 “That article 20 does not authorize or require legislation or other action by the United States that would restrict the right of free speech and association protected by the Constitution and laws of the United States”: available at accessed on June 12, 2023. 51 See the Declaration by the Belgian Government on Article 20 as a whole at accessed on June 12, 2023.

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