1.
States
Legally
Silencing
Hate
Speech
In
what
ways
are
states
meant
to
govern
hate
speech
within
their
jurisdictions
according
to
international
law?
Candidate
Number:
DGBR2
Word
Count:
9,997
Dissertation
submitted
in
part-­‐fulfillment
of
the
Masters
Course
in
Human
Rights,
UCL,
September
2014.

2. 2
Abstract
In
what
ways
are
states
meant
to
govern
hate
speech
under
international
law
is
the
central
question
posed
in
this
study.
Employing
mostly
content
analysis
of
legal
jurisprudence
in
both
the
global
and
the
three
major
regional
international
human
rights
systems,
two
hypotheses
are
tested
in
gauging
the
full
scope
of
international
legal
duties
for
states
to
regulate
hate
speech.
After
qualitatively
analyzing
international
human
rights
treaty
law,
treaty
body
judicial
documents,
and
case
law
surrounding
freedom
of
expression
and
limits
to
that
freedom
in
the
interest
of
protecting
against
hate
speech,
the
research
data
finds
international
law
requiring
considerably
more
from
states
in
regulating
hate
speech
than
is
explicitly
codified
in
binding
human
rights
treaty
law.
No
answer
to
whether
the
current
international
legal
order
is
best
suited
to
protect
vulnerable
groups
against
expression
aimed
at
inciting
hatred
and
violence
towards
them
is
attempted
in
this
research;
questions
and
suggestions
for
subsequent
research
are
merely
introduced.
When
confronted
with
the
global
repercussions
of
events
like
the
Danish
Cartoon
Controversy,
how
the
world
collectively
manages
problematic
expression,
especially
disseminated
online,
becomes
increasingly
imperative.
This
study
satisfies
step
one
in
that
process
by
critically
compiling
the
various
duties
states
are
instructed
to
regulate
hate
speech
according
to
international
human
rights
legal
jurisprudence.
Future
research
can
assess
qualitatively
and
quantitatively
just
how
effective
the
litany
of
state
duties
are
in
governing
hate
speech
globally
with
the
collective
goal
of
discovering
the
best
approach
for
regulating
hate
speech
online.

3. 3
Table
of
Contents
Page
Abbreviations
4
I.
Introduction
5
Hate
Speech
in
Context
5
Investigating
State
Hate
Speech
Regulation
6
II.
Literature
Review
8
Comparative
Studies
Framework
9
Tensions
Framework
11
Case
Studies
Framework
13
This
Study’s
Placement
15
III.
Research
Question
and
Hypotheses
17
Research
Question
17
Hypotheses
19
IV.
Research
Design
20
Valid
Sources
of
Data
20
Excluded
Sources
of
Data
21
Limitations
and
Improvements
23
V.
Results
25
Legal
Obligations:
Global
25
Legal
Obligations:
Regional/Europe
30
the
Americas
34
Africa
35
VI.
Discussion,
Conclusion,
and
Continuation
38
Further
Questions,
Issues
40
Final
Words
46
VII.
Bibliography
47
APPENDIX
A:
State
Parties
to
ICCPR
55
B:
State
Parties
to
ICERD
59
C:
State
Parties
to
ECHR
63
D:
State
Parties
to
ACHPR
64
E:
State
Parties
to
ACHR
65
F:
Controversial
Danish
Cartoons
66

4. 4
Abbreviations
ACHPR...……………………………………African
Commission
on
Human
and
Peoples’
Rights
ACHR...……………………………………….………………American
Convention
on
Human
Rights
ACtHPR.…………………………………..………African
Charter
on
Human
and
Peoples’
Rights
AU…...………………………………………….………………………African
Union
(replaced
the
OAU)
GC……………....………………………………………………………………………...……General
Comment
ECHR…………………………………………………………European
Convention
on
Human
Rights
ECtHR…………………………………………….……………………European
Court
of
Human
Rights
HRC...………………………………………………………………………...……Human
Rights
Committee
HRCn...…………………………………………………………………………………Human
Rights
Council
IACtHR...………………………………………...……………Inter-­‐American
Court
of
Human
Rights
ICCRP...…………………………………………………………..…………………International
Covenant
on
Civil
and
Political
Rights
ICERD...……………………………………International
Convention
on
the
Elimination
of
All
Forms
of
Racial
Discrimination
ICJ...……………………………………………………………………………International
Court
of
Justice
ICJ...……………………………………………………………………………International
Court
of
Justice
LGBT………………………………………………………….……Lesbian,
Gay,
Bisexual,
Transgender
OAU...………………………………………………………………..………Organization
of
African
Union
UNCERD...……………………………………United
Nations
Committee
on
the
Elimination
of
(also
‘CERD’)
All
Forms
of
Racial
Discrimination
UNHCHR...…………………………………………United
Nations
Office
of
High
Commission
of
Human
Rights
UN…………………………………………………………………………………………………..United
Nations

5. 5
I.
Introduction
Hate
Speech
in
Context
In
2006,
a
series
of
cartoons
depicting
the
Muslim
prophet
Muhammad
were
printed
in
Danish
newspapers.
Considered
blasphemous
by
many
in
the
Islamic
world,
the
cartoons
sparked
protests
in
Denmark.
International
media
picked
up
and
disseminated
the
cartoons
in
print
and
online
resulting
in
the
unrest
spreading
globally.
By
publishing
the
images,
the
cartoonists’
exercising
their
freedom
of
expression
in
effect
culminated
in
local,
national,
regional,
and
global
repercussions
of
rioting,
revenge
conspiracies,
and
death
in
scores
of
countries
on
every
inhabited
continent
(MacAskill,
Laville,
and
Harding;
Kimmelman).
When
regulating
hate
speech
in
any
multicultural
democracy,
tensions
with
other
fundamental
rights
inherently
exist.
Of
course,
prohibiting
hate
speech
means
limiting
one
of
the
most
fundamental
rights
–
freedom
of
expression.
But
expression
that
is
aimed
at
inciting
hatred
towards
vulnerable
groups
in
society
threatens
a
slue
of
core
rights
as
well.
Without
intervening
on
certain
insidious
messages
delivered
through
exercising
freedom
of
expression,
individuals
and
groups
can
be
intimidated,
thus
threatening,
among
others,
their
rights
to
freedom
of
assembly,
political
participation,
and
even
to
life.
These
threats
additionally
apply
to
the
perpetrators.
At
the
very
least,
the
Danish
Cartoon
controversy
threatened
the
life
of
the
cartoonists
and
their
defenders,
while
applying
pressure
on
public
order
not
just
in
Denmark,
but
across
the
globe.
When
the
objective
is
to
incite
hatred,
states
plainly
have
a
vested
interest
in
regulating
the
use
of
the
freedom
of
expression.

6. 6
A
clear
lesson
learned
through
the
Danish
Cartoon
controversy
is
that
information
today
spreads
quickly,
and
can
carry
with
the
message
severe
(un)intended
global
impact.
Images
published
in
a
Danish
newspaper
can
ignite
significant
public
safety
concerns
overnight
globally.
Danish
authorities
have
a
responsibility
to
regulate
this
expression
in
securing
a
stable
order
within
Denmark,
regardless
of
whether
the
cartoonists
intended
to
create
the
reaction
the
cartoons
actually
solicited.
The
question
that
emerges
then
is
what
is
the
extent
of
Denmark’s
obligation
in
regulating
hate
speech?
Situated
more
broadly,
what
responsibilities
do
states
have
in
regulating
hate
speech
within
their
jurisdictions?
Since
freedom
of
expression
can
be
located
in
binding
international
law,
international
human
rights
treaties
should
offer
some
direction
in
how
to
define
the
scope
of
state
obligation
to
regulate
hate
speech.
And
focusing
internationally
through
human
rights
treaties
appears
best
suited:
the
global
repercussions
of
expression
and
the
near-­‐immediate
spread
of
such
expression
through
the
Internet
makes
any
probable
controversial
form
of
expression
a
concern
of
a
global
nature.
Investigating
State
Hate
Speech
Regulation
This
study
delves
into
the
current
legal
obligations
for
states
regulating
hate
speech
within
their
jurisdictions.
Several
international
covenants
mandating
and
limiting
a
freedom
of
expression
permits
a
suitable
baseline
from
which
to
analyze
the
legal
framework
attempting
to
balance
a
freedom
of
expression
with
state
hate
speech
governance.

7. 7
First,
the
literature
review
identifies
three
classic
frameworks
in
academia
exploring
hate
speech:
comparative
studies;
tensions;
and
case
studies.
Three
detailed
examples
of
each
study
are
offered
for
context.
Although
approaching
hate
speech
differently,
a
common
thread
in
the
literature
is
attempting
to
find
the
proper
placement
of
states
limiting
freedom
of
expression
in
modern
liberal
democracies
in
the
interest
of
defending
against
hate
speech.
The
literature
review
section
closes
first
with
recognizing
the
recent
trend
in
hate
speech
academic
literature
concerning
Internet
hate
speech
then
with
situating
this
present
research
among
the
canon
of
hate
speech
regulation
literature.
Following
the
Research
Question
and
Hypotheses
section,
which
defines
the
question
this
study
aims
to
answer
by
testing
two
accompanying
possible
scenarios,
the
Research
Design
section
defends
the
study’s
research
process
in
testing
the
hypotheses.
By
identifying
valid
sources
of
data
and
defending
against
excluded
sources
of
data,
the
Research
Design
section
maps
out
where
to
find
the
data
in
testing
the
hypotheses,
concluding
with
a
reflective
view
on
ways
to
improve
on
and
restrictions
to
this
present
study.
Finally,
the
research
findings
are
compiled
in
the
Results
chapter
then
analyzed
in
the
Discussion
section.
After
compiling
the
various
international
legal
obligations
for
states
in
regulating
hate
speech
into
one
document,
this
study
closes
by
posing
significant
apprehensions
to
the
current
international
legal
order
in
regulating
hate
speech.
The
significance
of
this
study
is
that
it
permits
commencing
assessments
of
those
doubts
with
particular
light
on
the
increasing
global
reach
of
Internet
hate
speech.

8. 8
II.
Literature
Review
Prevailing
in
the
academic
literature
on
hate
speech
is
an
attempt
to
address
the
proper
place
of
hate
speech
regulation
in
modern
liberal
society.
In
approaching
that
larger
question,
the
literature
surrounding
hate
speech
regulation
adopts
three
general
themes.
Comparative
analysis
is
one
such
theme.
Many
authors
explore
hate
speech
by
comparing
other
state
democracies’
attempt
at
balancing
freedom
of
expression
and
regulating
hate
speech
with
the
United
States,
since
the
US
has
the
First
Amendment
guarantee
of
freedom
of
speech
and
subsequent
jurisprudence
regarding
acceptable
limits
on
that
freedom
(Waldron,
2012;
Knechtle,
2005;
Kahn,
2005;
Kahn,
2009;
Kahn,
2013;
Belavsau,
2012;
Bleich,
2014;
Bleich,
2011).
Another
theme
that
materializes
in
the
literature
focuses
on
tensions
with
other
rights
hate
speech
regulation
creates,
such
as
religious
freedom;
several
authors
even
expand
that
framework
to
explore
the
relationship
between
hate
speech
and
cherished
meta-­‐concepts
in
modern
democracies
like
dignity
and
equality
(March,
2012;
Malik,
2011;
Sottiaux,
2011;
Hare
and
Weinstein,
2009;
Cortese,
2006;
Gelber,
2002;
Tsesis,
2009;
Delgado
and
Stefancic,
2009;
Edger,
2009;
Heyman,
2008;
Carmi,
2007).
A
third
clear
thread
in
the
literature
on
state
hate
speech
governance
explores
the
topic
through
case
studies,
most
often
geographically
focuses
on
investigating
how
particular
countries
or
regions
attempt
to
regulate
hate
speech
in
their
jurisdictions.

9. 9
Although
these
are
the
predominant
themes
emerging
from
a
review
of
hate
speech
management
literature,
contemporary
works
on
hate
speech
regulation
have
increasingly
demonstrated
more
interest
on
hate
speech
online
(Gerstenfelt,
Grant,
and
Chiang,
2003;
Joseph,
2012;
Gulati
and
Barua,
2013;
Cohen-­‐Almagor,
2012;
Lim
and
Sexton,
2011;
Sumner,
2013;
Sreedharam
and
Jalil,
2013;
Bitso,
Fourie,
and
Bothma,
2013;
Tsesis,
2013;
van
Noorloos,
2014).
Regardless
of
the
framework,
a
common
academic
concern
in
exploring
hate
speech
regulation
in
democracies
is
how
far
should
any
state
regulation
go
at
the
expense
of
subverting
the
cherished
fundamental
right
to
freedom
of
expression.
Comparative
Studies
Framework
The
comparative
studies
framework
in
assessing
hate
speech
regulation
compares
democracies
across
the
globe
and
their
legal
approach
to
addressing
hate
speech
with
the
US
approach
through
its
First
Amendment
to
the
US
Constitution.
Erik
Bleich’s
2014
study,
for
example,
explores
differences
between
hate
speech
regulation
in
judicial
decisions
in
the
United
States
and
in
European
courts,
arguing
that
political
and
cultural
variables,
legal
texts,
and
differences
in
jurisprudential
norms
strongly
influence
the
patterns
of
outcomes
coming
from
these
several
jurisdictions
(282).
Bleich
concludes
that
European
courts
have
backed
hate
speech
regulation
as
part
of
the
effort
to
curb
forms
of
racism,
while
American
courts
would
likely
strike
down
these
provisions
as
a
dangerous
affront
to
the
fundamental
right
of
freedom
of
expression
sourced
in
the
First
Amendment
(299-­‐300).

10. 10
In
When
to
Regulate
Hate
Speech,
author
John
Knechtle
also
utilizes
a
comparative
framework
to
explore
hate
speech
regulation.
Knecktle
attempts
to
unite
differences
between
US
hate
speech
governance
and
those
of
other
world
democracies,
finding
that
a
common
denominator
in
how
all
democracies
limit
hate
speech
is
a
governmental
interest
in
protecting
citizens
from
the
rift
in
society
caused
by
fear
and
violence
(578).
Because
the
relationship
between
hate
speech
and
violence
is
so
close,
democratic
governments
have
an
interest
in
protecting
its
citizens
against
such
harm
(Knechtle,
578).
So
the
United
States
should
expand
its
hate
speech
regulation
not
only
to
protect
against
intimidation
and
threats
to
unlawful
acts,
but
also
to
create
a
common
dialogue
with
the
international
community
where
that
expanded
view
of
hate
speech
regulation
is
already
utilized
by
numerous
democratic
governments
(569).
Bleich’s
book,
Freedom
to
Be
Racist?:
How
the
United
States
and
Europe
Struggle
to
Preserve
Freedom
and
Combat
Racism,
also
utilizes
a
comparative
framework
to
explore
hate
speech
regulation.
This
work
primarily
compares
US,
British,
French,
and
German
policies
towards
combating
hate
speech
since
World
War
II,
making
note
of
the
rise
in
restrictions
on
racists
hate
speech
in
each
of
these
multicultural
democracies
(19-­‐21).
Bleich
argues
that
as
modern
democracies
struggle
in
achieving
a
balance
between
protecting
fundamental
freedoms,
such
as
freedom
of
expression,
while
reducing
racism,
close
attention
should
be
paid
to
the
specific
context
for
each
policy
initiative
and
their
likely
effects,
since
each
democracy
has
specific
social
challenges
to
combat
(133-­‐134).
In
the
end,
Bleich
concludes
that
the
optimal
way
for
societies
to
balance
preserving
freedom
of

11. 11
expression
while
offsetting
racism
is
through
public
deliberation
–
where
citizens
are
actively
involved
in
policy
development
and
decisions
through,
for
instance,
debates
and
referendums
(155).
Tensions
Framework
Understandably,
a
significant
portion
of
hate
speech
regulation
literature
resides
in
a
framework
of
conflict
with
other
rights.
This
approach
favored
by
most
academics
studying
the
subject
of
managing
hate
speech
varies
in
exactly
what
tensions
are
created
by
regulating
hate
speech.
However,
they
all
acknowledge
a
threat
posed
to
core
modern
liberal
ideals
when
states
govern
hate
speech.
Jurists
Richard
Delgado
and
Jean
Stefancic
actually
analyze
the
tensions
framework
when
they
explored
hate
speech
regulation
in
their
recent
article
for
the
Wake
Forest
Law
Review:
“Four
Observations
About
Hate
Speech.”
They
concede
that
the
debate
about
hate
speech
has
been
contentious
because
the
deliberation
inevitably
forces
acknowledging
the
tension
between
two
of
modern
liberal
society’s
deepest
values:
equality
and
free
speech
(355).
Though
Delgado
and
Stefancic
doubt
a
resolution
will
ever
be
fully
realized,
they
advocate
an
appreciation
of
the
complexities
this
tension
presents,
since
doing
so
aids
in
understanding
the
controversy
hate
speech
generates
in
society
(370).
The
authors
mention
several
unique
obstacles
that
hate
speech
may
engender
in
certain
situations
that
have
remain
unaddressed
by
scholars
to
date:
when
the
subject
of
hate
speech
regards
children;
how
social
power
and
setting
influences
the
tension;

12. 12
or
the
nuanced
influence
general,
undirected
hate
speech
–
rather
than
targeted
hate
speech
–
may
have
in
society
(362).
Another
prime
example
of
utilizing
a
tensions
framework
to
investigate
regulating
hate
speech
is
found
in
Maleiha
Malik’s
article,
“Religious
Freedom,
Free
Speech
and
Equality:
Conflict
or
Cohesion?”
Malik
is
concerned
that
criminalizing
hate
speech
poses
a
distinct
risk
to
the
values
of
free
speech
(12).
She
believes
that
the
legal
institutions
employed
in
managing
hate
speech
in
liberal
societies
offer
only
a
partial
solution
for
the
larger
issue
of
a
reality
where
hate
speech
can
even
emerge
in
modern
liberal
society
(38).
Ultimately,
Malik
proposes
alternative,
non-­‐
legal
responses,
including
enhanced
use
of
cultural
policy,
to
manage
and
alleviate
tensions
between
hate
speech
and
other
rights,
like
religious
freedom,
free
speech,
and
equality
in
liberal
societies
(39).
In
his
theoretical
work,
The
Harm
in
Hate
Speech,
noted
political
philosopher
Jeremy
Waldron
defends
hate
speech
regulation
as
legitimate
restrictions
to
freedom
of
expression,
insisting
that
those
limits
are
overwhelmingly
theoretically
uncontested
by
democracies
around
the
world
(p.
13).
Using
this
tensions
framework
to
defend
hate
speech
regulation
as
mandated
in
modern
liberal
democracies
(even
citing
ICCPR
Article
20(2)
in
defense),
Waldron
criticizes
American
attitudes
on
the
subject,
which
he
says
places
a
greater
emphasis
on
a
freedom
of
expression,
thereby
preventing
space
for
hate
speech
regulation
(p.
13-­‐
5).
Waldron
characterizes
this
predominant
American
stance
on
limits
to
freedom
of
expression
as
impulsive,
thoughtless,
and
seemingly
out
of
concert
with
other

13. 13
liberal
societies,
arguing
in
the
end
for
increased
restrictions
on
freedom
of
expression
as
a
legitimate
governmental
check
on
hate
speech
(p.
11).
Case
Studies
Framework
A
third
prevalent
means
of
analyzing
hate
speech
regulation
comes
through
case
studies.
Utilizing
this
framework,
academics
explore
hate
speech
regulation
mainly
through
studying
countries,
but
also
in
analyzing
specific
policy
implications
as
well
as
the
impact
of
hate
speech
governance
on
susceptible
groups,
such
as
the
Black,
Roma,
Muslim,
or
LGBT
communities.
Ulrika
Martensson,
in
her
article
“Hate
Speech
and
Dialogue
in
Norway:
Muslims
‘Speak
Back,’”
investigates
hate
speech
regulation
through
studying
the
interfaith
dialogue
between
the
Church
of
Norway
and
Islam.
Her
article
highlights
the
challenges
posed
by
the
interfaith
dialogue
in
Norwegian
state
integration
policy,
which
permits
some
Norwegian
Muslims
to
‘speak
back’
to
right-­‐wing
discourse,
thus
increasing
Norwegian
Muslims’
ability
to
publically
identify
with
human
rights
at
both
national
and
international
levels
(231).
Martensson
argues
that
because
Muslim
participation
in
public
deliberation
is
enhanced
by
the
interfaith
dialogue
with
right
wing
extremists,
that
discourse
actually
strengthens
the
legitimacy
of
Norway’s
liberal
democratic
state
integration
policy
(243-­‐4).
Over
ten
years,
Katherine
Gelber
studied
hate
speech
regulation
in
New
South
Wales,
Australia.
In
Speaking
Back:
The
free
speech
versus
hate
speech
debate,
she
argues
for
a
policy
of
‘speaking
back,’
where
the
state
would
provide
institutional,
material,
and
educational
support
to
empower
victims
of
hate
speech

14. 14
to
respond
to
their
perpetrators
(117).
By
replying
with
their
own
counter-­‐speech,
Gelber
argues,
victims
of
hate
speech
can
contradict
the
messages
contained
in
the
hate
speech
and
disempower
the
effects
of
the
hate
speech
(122).
This
method
is
a
way
to
overcome
shortcomings
in
existing
policy
approaches,
which
she
views
counterpose
the
two
goals
of
securing
freedom
of
speech
and
offsetting
the
harms
done
by
hate
speech
(Gelber,
137).
Employing
the
case
study
framework
in
examining
hate
speech
regulation,
Liz
Fekete
studies
state
deportation
policies
in
“Europe:
‘speech
crime’
and
deportation.”
Fekete
analyzes
the
implication
of
policy
initiatives
in
Europe
against
hate
crimes
and
immigration,
ultimately
arguing
that
the
use
of
immigration
legislation
to
deal
with
issues
of
hate
speech
sidesteps
the
need
for
judicial
transparency
and
overrides
the
rights
of
the
accused,
and
so
applies
pressure
on
vital,
judicially-­‐based
rights
of
the
accused,
like
confining
the
right
of
appeal
(88).
These
three
popular
academic
frameworks
emerge
continuously
in
the
classic
literature.
Presently,
though,
increasing
popularity
for
exploring
hate
speech
regulation
gauges
the
topic
through
a
lens
of
expression
online.
Julian
Baurim’s
article
on
Internet
hate
speech
as
confined
by
the
US
First
Amendment
is
a
prime
example
of
recent
academic
interest
in
hate
speech
regulation
as
it
relates
to
speech
espoused
online.
The
main
classic
frameworks
for
academically
assessing
hate
speech
governance
in
modern
liberal
democracies
–
comparative
studies,
tensions,
and
case
studies
–
and
the
emerging
emphasis
on
exploring
governing
Internet
hate
speech
provide
helpful
vantage
points
in
which
to
critically
engage
with
the
topic
of

15. 15
governments
restricting
freedom
of
expression
in
the
interest
of
minimizing
hate
speech.
Yet,
as
speech
through
the
Internet
continues
to
gain
traction
as
a
global
issue,
as
evident
through
the
dangerous
social
implications
to
events
such
as
the
Danish
Cartoon
Controversy,
this
article
steps
away
from
the
existing
academic
frameworks
to
investigate
the
current
scope
of
international
legal
obligations
on
states
to
regulate
hate
speech
with
the
aim
of
exposing
the
existing
structure
of
legal
regulation
of
hate
speech
for
further
study
of
whether
the
current
system
is
best
suited
to
address
hate
speech
disseminated
in
general,
but
especially
through
the
Internet.
This
Study’s
Placement
Tellingly,
not
one
author
reviewed
questioned
the
need
to
regulate
hate
speech;
that
premise
remains
assumed:
hate
speech
needs
to
be
regulated
by
governments
in
protecting
vulnerable
individuals
and
groups.
The
common
question
explored
by
these
authors
is
how
best
to
balance
protecting
fundamental
freedoms,
especially
freedom
of
expression,
while
effectively
regulating
hate
speech.
Notably
absent
in
the
literature
is
a
collective
study
of
how,
according
to
international
law,
hate
speech
should
be
regulated
by
states.
What
are
all
the
various
international
legal
duties
imposed
on
states
to
regulate
hate
speech
within
their
jurisdictions?
This
research
study
focuses
on
that
question
rather
than
investigating
any
particular
policy
implications,
impact
on
specific
vulnerable
groups
in
society,
or
compare
jurisdictions
through
case
studies
hate
speech
regulation
might
pose.
Indeed,
this
study
actually
speaks
to
each
existing
framework

16. 16
by
contributing
a
global
international
legal
context
for
each
study.
And,
considering
global
regulation
of
Internet
hate
speech,
may
even
offer
a
new
framework
in
which
to
analyze
the
role
of
hate
speech
regulation
in
modern
liberal
democracies.
The
significant
value
in
this
research
is
in
developing
a
baseline
of
the
various
state
duties
under
international
law
in
regulating
hate
speech
from
which
to
criticize
the
impact
on
vulnerable
groups
and
state
policies.
Compiling
a
comprehensive
list
of
current
legal
obligations
on
states
to
regulate
hate
speech
also
provides
a
clearer
means
for
debating
the
regulation
of
hate
speech
globally.
This
is
vital
when
balancing
freedom
of
expression
and
hate
speech
on
the
Internet.
After
decades
of
legally
mandating
state
obligations
to
regulate
hate
speech
through
international
law
on
an
assumption
that
states
have
a
duty
to
regulate
hate
speech,
as
expression
becomes
more
global
due
to
the
Internet’s
global
capacity,
an
anthology
of
the
numerous
international
legal
obligations
on
states
to
regulate
hate
speech
seems
long
overdue.

17. 17
III.
Research
Question
and
Hypotheses
Research
Question
This
study
attempts
to
answer
the
question:
In
what
ways
are
states
meant
to
govern
hate
speech
within
their
jurisdictions
according
to
the
international
law?
Before
proceeding,
this
present
legal
research
is
directed
by
the
several
qualifying
variables
detailed
below.
The
current
international
human
rights
legal
order
emerged
in
the
aftermath
of
the
atrocities
committed
during
World
War
II
(Nickel,
7).
This
study’s
research
timeframe,
therefore,
ranges
from
the
mid-­‐20th
century
to
the
present.
Additionally,
a
primary
limit
in
international
law,
pertaining
to
state
compliance,
centers
on
state
explicit
consent
to
binding
treaty
provisions
(Korkelia,
438).
Thus,
any
reference
to
states
obligations
under
legally
binding
treaties
in
this
study
should
be
read
as
those
state
parties
to
the
treaty
being
discussed.
(See
APPENDIX
for
list
of
state
parties
to
the
various
treaties
mentioned.)
This
study
also
will
not
address
issues
of
customary
law
surrounding
state
obligation
to
regulate
hate
speech.
That,
as
well,
would
require
significant
space
this
study
simply
does
not
permit.
As
the
other
primary
source
of
international
law
along
with
the
traditional
treaty
source,
it
is
worth
noting
that
subsequent
research
might
speak
considerably
to
legal
expectations
placed
on
states
to
regulate
hate
speech
under
customary
international
law.
This
study,
however,
is
solely
concerned
with
codified
legal
obligations
for
states
to
manage
hate
speech.

18. 18
Since
this
present
work
is
principally
not
normative,
it
is
less
centrally
concerned
with
theory
around
what
states
should
do
in
regulating
hate
speech.
That
normative
proposition
requires
a
different
approach
and
considerable
more
space
than
is
permitted
here.
However,
this
distinction
between
a
judicial
analysis
and
normative
exploration
of
state
regulation
of
hate
speech
is
helpful
because
the
legal
nature
of
the
question
confines
the
research
to
legally
binding
agreements
on
states
under
international
law.
Inevitably,
legal
approaches
to
regulating
hate
speech
by
limiting
freedom
of
expression
will
introduce
normative
concerns,
as
will
be
discussed
later.
However,
the
written
nature
of
international
legal
covenants
offers
the
clearest
starting
point
in
which
to
assess
state
legal
obligations
to
regulate
hate
speech
within
their
jurisdiction.
Finally,
because
this
study
engages
with
the
international
legal
nature
of
states
regulating
hate
speech,
and
particular
aspects
of
what
constitutes
hate
speech
may
rope
in
additional
legal
provisions,
a
definition
of
hate
speech
is
necessary.
For
the
purposes
of
this
research,
the
definition
of
hate
speech
will
be
confined
to
the
terms
found
in
Article
20
(read
in
conjunction
with
Article
19)
of
the
International
Covenant
on
Civil
and
Political
Rights
(ICCPR).
Succeeding
ICCPR’s
Article
19(3)
qualifier
on
an
unlimited
right
to
freedom
of
expression,
Article
20(2)
prohibits:
“Any
advocacy
of
national,
racial
or
religious
hatred
that
constitutes
incitement
to
discrimination,
hostility
or
violence.”
This
study
will
take
this
to
mean
hate
speech;
and
provided
that
this
legally
binding
treaty
has
near-­‐universal
explicit
state
consent,
the
definition
of
hate
speech
contained
in
Article
20
can
be
considered
as
close
to
legally
universal
as
possible.

19. 19
Moreover,
since
there
has
been
no
formal
rebuttal
or
alteration
to
the
terms
of
Articles
19
and
20
of
the
ICCPR,
this
should
be
considered
the
prevailing
understanding
of
hate
speech.
Hypotheses
Article
20(2)
mandates
that
such
hate
speech,
“shall
be
prohibited
by
law.”
This
binding
provision
offers
an
initial
glimpse
into
state
legal
obligations
pertaining
to
governing
hate
speech:
states
are
meant
to
outlaw
hate
speech
in
their
jurisdictions.
But
is
this
the
extent
of
state
legal
obligations
to
regulate
hate
speech
under
international
law?
The
following
hypotheses
result
from
the
study’s
research
question:
Hypothesis
1
(H1):
States
are
meant
to
manage
hate
speech
within
their
jurisdictions
only
to
the
exact
wording
in
international
law.
Hypothesis
2
(H2):
International
law
has
been
interpreted
to
incorporate
additional
requirements
for
states
regulating
hate
speech
within
their
jurisdictions
than
strictly
what
treaty
texts
read.
By
testing
these
hypotheses,
the
study
question
should
be
suitably
answered.

20. 20
IV.
Research
Design
Valid
Sources
of
Data
Answering
the
question
presented
in
this
study
by
focusing
on
international
law
requires
first
identifying
international
human
rights
treaties
addressing
freedom
of
expression
and
hate
speech
regulation.
Scouring
any
legally
binding
covenants
pertaining
to
hate
speech
regulation
seems
a
natural
starting
point
in
testing
this
study’s
hypotheses.
International
human
rights
law
resides
both
globally
through
UN
treaties
and
regionally
through
the
three
major
regional
systems:
Council
of
Europe,
Organization
of
American
States,
and
African
Union.
These
assemblies
deal
with
human
rights
through
legally
binding
treaties,
offering
a
legitimate
source
for
testing
this
study’s
hypotheses
and
answering
the
central
question.
As
with
Part
IV
of
the
ICCPR,
UN
treaties
have
associated
treaty
bodies
authorized
with
interpreting
the
various
provisions
in
their
respective
treaties.
In
the
ICCPR’s
case,
that
body
is
the
Human
Rights
Committee
(Art.
28).
Thus,
in
order
to
adequately
test
the
hypotheses,
content
analysis
of
treaty
body
interpretations
of
the
various
provisions
on
hate
speech
is
necessary.
Treaty
bodies
publish
documents,
usually
entitled
“General
Comment”
(or
“General
Recommendation”
for
CERD)
that
clarify
treaty
obligations
with
the
goal
of
enhancing
state
treaty
compliance.
When
individual
complaints
of
treaty
violations
by
state
parties
are
permitted,
usually
through
an
Optional
Protocol
to
the
treaty,
the
treaty
body
is

21. 21
empowered
with
adjudicating
those
accusations
against
states
that
come
before
it
(Nickel,
16).
These
judicial
functions
of
the
treaty
bodies
provide
a
canon
of
heightened
legal
understanding
supporting
treaty
provisions.
Data
on
legal
duties
for
state
regulation
of
hate
speech
sourced
in
individual
complaints
and
general
comments
provides
the
greatest
grasp
of
state
legal
obligations
under
international
law.
At
the
regional
level,
for
Europe,
the
Americas,
and
Africa,
the
same
research
approach
as
the
global
level
should
be
applied
to
the
three
main
regional
systems.
Unlike
the
UN
system,
however,
the
regional
systems
include
formal
courts
permitting
adjudication
of
human
rights
legal
conflicts
within
their
regions.
As
with
treaty
bodies
in
the
global
regime,
primarily
through
resolving
individual
complaints
against
alleged
state
violations
of
human
rights
protections,
these
courts
potentially
offer
a
rich
source
of
jurisprudence
surrounding
hate
speech
regulation
under
their
respective
treaties.
Excluded
Sources
of
Data
The
Human
Rights
Council,
arguable
more
high
profile
than
any
treaty
body,
is
primarily
responsible
for
universal
periodic
review
of
each
state
in
the
global
system
(Nickel,
17).
This
body
does
not
the
responsibility
to
decide
the
character
of
each
treaty,
but
is
limited
to
merely
advising
states
on
human
rights
actions.
Though
undoubtedly
key
in
influencing
state
treaty
compliance,
the
HRCn
is
not
a
judicial
body
interpreting
the
provisions
of
international
human
rights
treaties.
Any
data
gathered
through
researching
HRCn
documents
would
not
speak
to
legally
binding

22. 22
obligations
for
states
to
regulate
hate
speech,
so
would
not
satisfactorily
answer
the
research
question,
and
should
be
omitted
in
any
research
addressing
the
legally
binding
character
of
state
obligations
under
international
law.
The
International
Court
of
Justice
also
should
not
be
considered
a
valid
source
of
data
for
this
study.
The
ICJ
functions,
according
to
the
UN
Charter,
as
both
a
judicial
body
for
the
resolution
of
disputes
between
UN
member
states
and
as
an
advisory
body
for
the
UN
General
Assembly
and
Security
Council
(Chapter
XIV).
Since
the
very
nature
of
human
rights
laws
serves
as
protection
of
individual
rights
against
state
actions,
rather
than
to
protect
states
against
other
states,
ICJ
jurisprudence
is
unhelpful
in
answering
questions
of
human
rights
legal
obligations
(Nickel,
9-­‐10).
Special
Rapparteurs,
though
experts
and
highly
influencial
in
their
respective
fields
of
human
rights,
should
also
be
excluded
from
data
that
appropriately
answers
a
research
question
surrounding
the
scope
of
legal
obligations
on
states
to
regulate
hate
speech.
A
right
to
potable
water
may
be
read
in
various
ICCPR
provisions
by
a
special
rapporteur;
nevertheless
that
office
has
no
legal
authority
to
mandate
that
governments
supply
potable
water
as
a
binding
legal
obligation
for
states
under
the
ICCPR.
Therefore,
in
the
absence
of
any
direct
judicial
bearing
on
treaty
provisions
relating
to
hate
speech
regulation,
any
special
rapparteur
data
is
not
a
valid
source
of
information
in
resolving
this
study’s
question.

23. 23
Limitations
and
Improvements
With
more
time
and
resources,
one
way
this
study
could
be
enhanced
is
by
obtaining
additional
data
qualitatively
through
case
studies
of
hate
speech
regulation
incorporated
by
states.
Comparing
this
information
would
be
interesting
in
assessing
how
international
law
jurisprudence
surrounding
hate
speech
regulation
is
incorporated
into
various
domestic
legal
orders
–
as
another
interpretation
of
international
law
by
the
states
themselves
with
the
added
benefit
of
analyzing
visceral
impacts.
For
example:
might
Denmark
have
unique
challenges
in
instituting
any
HRC’s
General
Comment
obligation
for
regulating
hate
speech
than,
say,
Colombia?
And
how
might
that
influence
global
legal
obligations
for
states
to
regulate
hate
speech?
Conducting
interviews
with
members
of
the
various
treaty
body
members,
regional
court
officials,
international
law
jurists,
and
domestic
government
officials
would
add
solid
data
for
testing
this
study’s
hypotheses.
The
information
resulting
from
speaking
with
these
professionals
who
directly
interpret
the
various
international
legal
provisions
obligating
state
regulation
of
hate
speech
would
both
provide
an
element
of
understanding
behind
the
language
of
the
treaty
provisions
and
hint
at
the
future
trajectory
of
state
legal
duties
to
regulate
hate
speech.
Additionally,
scouring
documents
including
transcriptions
of
debates
among
pertinent
treaty
body
members,
amicus
legal
briefs
to
the
treaty
bodies,
and
any
other
related
documents
could
be
analyzed
for
additional
data
speaking
to
any
obligations
for
states
to
regulate
hate
speech
according
to
international
law.

24. 24
Provided
adequate
resources
and
time,
the
data
gathered
and
qualitatively
analyzed
in
this
study
with
the
additional
information
suggested
above
could
also
be
studied
quantitatively,
exploring
correlations
among
variables
such
as,
say,
the
degree
of
influence
nonprofit
organizations’
amicus
legal
briefs
may
have
on
binding
legal
obligations
in
general
comments.
Rather
than
answering
a
descriptive
research
question
–
as
this
study
does
–
those
largely
quantitative
studies
might
answer,
for
example,
how
strong
any
relationship
is
between
the
nationality
of
treaty
body
members
interpreting
hate
speech
regulation
in
international
law
and
the
type
of
obligations
generated
by
that
treaty
body.

25. 25
V.
Results
Following
the
research
design
plan,
this
section
constitutes
a
synthesis
of
valid
data
gathered:
a
qualitative
content
analysis
of
current
state
obligations
to
regulate
hate
speech
under
international
law
divided
between
global
and
regional
systems.
A
brief
reminder
of
each
system’s
structure
will
introduce
each
subsection
in
order
to
add
context
to
the
various
legal
provisions
enumerated.
Legal
Obligations:
Global
The
United
Nations
constitutes
the
global
legal
system,
producing
international
law
in
the
form
of
treaties
that
generate
legal
obligations
on
those
nations
who
consent
to
their
provisions.
Although
legal
agreements
through
the
UN
come
in
various
forms,
such
as
bilateral
trade
agreements,
this
study
is
concerned
only
with
a
certain
branch
of
international
law
governing
human
rights
-­‐
specifically
human
rights
treaties
that
include
a
freedom
of
expression
(and
limitations
to
that
freedom).
As
with
guaranteeing
a
freedom
of
expression,
human
rights
treaties
are
unique
in
that
they
prescribe
certain
state
behavior
when
it
comes
to
governing
folks
under
their
jurisdictions
(ICCPR,
Art.
19).
There
are
two
main
global
human
rights
treaties
that
address
a
limit
on
freedom
of
expression
relating
to
hate
speech:
the
International
Convention
on
Civil
and
Political
Rights
(ICCPR)
and
the
International
Convention
on
the
Elimination
of
Racial
Discrimination
(ICERD).
Each
treaty
carries
its
own
supervisory
body
vested
with
defining
the
provisions
found
within
their
treaty:
the
Human
Rights
Committee

26. 26
for
the
ICCPR
and
the
Committee
on
the
Elimination
of
Racial
Discrimination
for
ICERD.
Pursuant
to
the
design
section,
the
research
results
of
the
treaty
bodies’
general
comments
and
individual
complains
pertaining
to
the
hate
speech
provisions
found
in
each
should
satisfactorily
test
this
study’s
hypotheses.
Article
19
in
the
ICCPR
guarantees
a
freedom
of
expression
and
opinion
“without
interference”
(sec.
1).
Article
20
then
modifies
the
Article
19
freedoms,
with
section
2
stating:
Any
advocacy
of
national,
racial
or
religious
hatred
that
constitutes
incitement
to
discrimination,
hostility
or
violence
shall
be
prohibited
by
law.
These
are
the
main
treaty
provisions
under
ICCPR
relating
to
hate
speech
regulation
as
a
legitimate
limitation
on
the
freedom
of
expression,
as
Article
20(2)
explicitly
mandates
a
state
duty
to
regulate
hate
speech
by
outlawing
hate
speech
in
domestic
laws.
But,
as
this
study
inquires,
is
that
all
states
are
obligated
to
do
in
regulating
hate
speech
within
their
jurisdictions?
Almost
immediately,
HRC
clarifications
of
Articles
19
and
20
demonstrate
that
passing
legislation
banning
hate
speech
is
just
the
beginning
of
state
legal
obligations
in
regulating
hate
speech.
Interpreting
the
Article
20(2)
explicit
state
obligation
to
ban
hate
speech
by
law,
the
HRC
in
General
Comment
34
notes
that
every
state
not
only
has
a
duty
to
pass
legislation
banning
hate
speech,
but
they
must
also:
justify
the
bans
(para.
52;
Sohn
v.
Republic
of
Korea;
Shin
v.
Republic
of
Korea)
and
the
laws
must
in
writing,
because
any
restriction
to
Article
19
freedom
of
expression
constitutes
a
serious
infringement
of
human
rights
(GC
34,
para.
24;
Dissamayake
v.
Sri
Lanka).
Furthermore,
in
de
Groot
v.
The
Netherlands,
the
HRC
noted
that
any
law
restricting
freedom
of
expression
must
be
precise
enough
for

27. 27
individuals
to
regulate
their
own
behavior
accordingly,
and
be
made
accessible
to
the
public
(de
Groot,
para.
4.1;
CG
34,
para.
25).
And
GC
3,
paragraph
2
even
obliges
states
to
publicize
the
ban
in
all
official
languages;
while
GC
11,
paragraph
2
includes
the
duty
for
state
legislation
to
provide
appropriate
sanctions
for
violations
of
that
law.
In
addition
to
an
explicit
obligation
to
adopt
legislation
banning
hate
speech,
the
HRC
has
broadened
state
obligations
under
Article
19
and
20
provisions.
Concerning
all
provisions
in
the
ICCPR,
General
Comment
31
reads
a
duty
for
states
in
protecting
those
within
their
jurisdictions
not
just
from
state
agents,
but
additionally
against
acts
committed
by
private
persons
or
parties
(para.
8).
And
states
must
also
“exercise
due
diligence
to
prevent,
punish,
investigate
or
redress
the
harm
caused”
by
either
private
persons
or
state
agents
(my
emphasis,
GC
31,
para.
8).
Pertaining
specifically
to
Article
19,
GC
34
reads
a
state
obligation
to
institute
effective
measures
proactively
protecting
against
attacks
aimed
at
thwarting
this
ICCPR
provision
by
state
officials
and
private
entities
(para.
23).
Thus,
far
beyond
merely
outlawing
hate
speech,
full
compliance
of
ICCPR
Articles
19
and
20
according
to
HRC
jurisprudence
entails
states
codifying,
justifying,
and
publicizing
laws
banning
hate
speech,
while
instituting
preventative,
active,
and
remedial
measures
against
both
private
and
public
infringement
of
hate
speech
laws.
Under
the
International
Convention
on
the
Elimination
of
All
Forms
of
Racial
Discrimination,
Article
4(a)
mandates
states
to
prohibit
hate
speech
by
law.
Extending
this
straightforward
state
duty,
beginning
with
its
first
General
Recommendation
in
1972,
CERD
mandated
that
states
supplement
their
existing

28. 28
legislation
with
provisions
that
specifically
conform
to
Article
4
(GR
1).
Then,
as
with
the
HRC,
CERD
extended
state
obligations
under
Article
4
to
include
regulating
actions
by
private
agents,
not
just
public
officials
(GR
20,
para.
5).
Also
similarly
to
the
HRC
there
is
a
duty
on
states
to
ensure
victims
of
hate
speech
have
a
right
to
seek
adequate
reparations
through
domestic
courts,
including
financial
awards
(GR
26,
para.
2).
CERD,
though,
has
gone
far
beyond
HRC’s
reading
of
state
duties
under
ICCPR
Articles
19
and
20
in
expanding
a
reading
of
state
obligation
under
ICERD
Article
4.
Article
4(a)
lists
four
categories
states
are
required
to
penalize:
1)
spread
of
ideas
of
racial
superiority
or
hatred;
2)
incitement
to
racial
hatred;
3)
violence
against
any
race
or
groups
of
another
color
or
ethnic
origin;
and
4)
incitement
to
violence
against
these
groups.
Paragraph
5
of
GR
15,
though,
expands
this
list
to
include
the
financing
of
racist
activities
for
any
of
these
categories,
and
requiring
states
to
investigate
whether
their
legal
and
administrative
structures
accommodate
this
reading
of
Article
4
obligations.
Subsequently,
the
text
in
GR
15:
denotes
as
prohibited
any
organizations
active
in
the
financing
and
propagation
of
racial
hatred;
obliges
states
to
be
vigilant
in
acting
against
these
organizations
“at
the
earliest
moment;”
and
indicates
that
state
authorities
at
every
administrative
level
of
government
must
engage
in
this
duty
(para.
6,
7).
General
Recommendation
13
expands
state
legal
duties
under
ICERD
even
further.
Paragraph
3
calls
upon
“states
parties
to
review
and
improve
the
training
of
law
enforcement
officials
so
that
the
standards
of
the
Covenant
.
.
.
are
fully
implemented.”
Such
law
enforcement
training
by
the
state,
per
paragraph
2
of
GR

29. 29
13,
should
be
considered
“intensive,”
thereby
ensuring
respect
and
protection
of
the
covenant’s
rights
for
those
under
state
jurisdiction.
And
on
several
occasions
CERD
has
mandated
greater
transparency
in
complying
with
these
obligations
by
directing
states
to
inform
the
treaty
body
on
measures
taken
to
satisfy
these
requirements
(GR
13,
para.
3;
GR
7,
para.
3).
More
Article
4
requirements
on
states
in
the
functioning
of
their
criminal
justice
systems,
such
as
implementation
of
new
national
strategies
to
eliminate
structural
racial
discrimination,
were
suggested
in
a
recent
Draft
Recommendation,
and
though
yet
to
be
adopted,
it
nevertheless
indicates
an
eagerness
for
CERD
to
extend
state
duties
under
Article
4
(I.2,
9).
In
order
to
successfully
implement
the
treaty
provisions
found
in
ICERD,
the
treaty
body
found
it
increasingly
necessary
for
states
to
create
oversight
and
reporting
bodies
within
their
jurisdictions,
adding
yet
another
legal
obligation
in
ICERD.
For
instance,
GR
17
directs
states
to
establish
national
institutions
to
aid
in
their
implementation
of
treaty
provisions
including
Article
4
(para.
1).
The
chief
goals
of
such
national
institutions
being:
promote
respect
for
human
rights;
analyze
government
policies;
monitory
treaty
compliance;
public
education
of
treaty
duties;
assist
the
state
in
ICERD
reporting;
and
enhance
the
dialogue
between
CERD
and
the
state
(GR
17,
para.
1,
2).
Furthermore,
in
2003,
echoing
the
belief
that
national
institutions
play
a
key
role
in
fulfilling
state
treaty
obligations,
on
the
heels
of
the
World
Conference
against
Racism,
Xenophobia,
and
Related
Intolerance,
GR
28
again
calls
for
states
to
establish
(or
strengthen
existing)
national
human
rights
institutions
with
enhanced
resources
(preamble,
II(9)).

30. 30
In
CERD’s
broadest
reading
of
state
duties
under
ICERD,
GR
27
pertains
to
discrimination
against
Roma.
Along
with
a
specific
mandate
for
states
to
regulate
against
hate
speech,
the
paper
catalogues
a
number
of
distinct
measures
states
are
meant
to
take
in
protecting
Roma
against
possible
hate
speech,
including:
encouraging
dialogue
between
Roma
and
non-­‐Roma
communities
aimed
at
preventing
conflicts
based
on
prejudices
against
Roma;
prevent
the
segregation
of
Roma
children
in
education;
and
take
affirmative
action
measures
to
employ
Roma
in
public
administration
(No.
36,
9,
14,
18,
28).
As
one
of
the
longest
texts
ever
issued
by
CERD,
the
document
includes
nearly
six-­‐dozen
steps
states
should
take
to
ensure
the
Roma
community
is
protected.
This
particularly
detailed
reading
of
state
legal
duties
under
ICERD
additionally
requires
states
to
not
just
report
generally
on
the
Roma
communities
within
their
jurisdiction,
but
also
provide
statistical
data
about
Roma,
especially
pertaining
to
their
political,
economic,
social,
and
cultural
life
(No.
26).
Legal
Obligations:
Regional
The
three
regions,
Europe,
the
Americas,
and
Africa,
each
have
their
own
human
rights
treaty.
Unlike
the
global
UN
system,
which
utilizes
associated
treaty
bodies,
regional
systems
mostly
rely
on
a
central
court
to
provide
meaning
for
their
regional
treaty
provisions.
These
courts
adjudicate
disputes
between
states
and
people
within
their
jurisdiction,
thereby
developing
jurisprudence
around
treaty
provisions.

31. 31
Europe’s
primary
regional
human
rights
system
under
the
Council
of
Europe
has
extensive
jurisprudence
relating
to
hate
speech
regulation
as
codified
in
its
human
rights
treaty,
the
European
Convention
on
Human
Rights
(ECHR).
Through
its
central
court,
the
European
Court
of
Human
Rights
(ECtHR
or
Strasbourg
Court
after
the
French
city
where
it
sits),
the
European
region
has
also
broadened
the
reading
of
state
legal
obligations
to
regulate
hate
speech
under
the
ECHR.
Article
10
of
the
European
Convention
on
Human
Rights
both
guarantees
a
freedom
of
expression
and
restricts
that
freedom
under
certain
conditions,
such
as
protecting
the
rights
of
others
(sec.
1,
2).
Article
17
moreover
permits
no
state,
group,
or
person
from
doing
anything
that
might
destroy
or
limit
the
rights
found
in
the
ECHR.
This
is
the
basis
from
which
the
Strasbourg
Court
has
interpreted
restrictions
on
freedom
of
expression
within
the
European
system.
Rarely
even
venturing
to
trial,
when
considering
derogatory
expression
aimed
at
religion,
the
European
Court
has
on
several
occasions
ruled
complaints
against
state
action
restricting
Article
10
rights
simply
inadmissible.
For
instance,
in
Hizb
Ut-­Tahrir
and
Others
v.
Germany,
the
state
prohibited
activities
of
an
Islamic
group
advocating
the
overthrow
of
non-­‐Islamic
governments.
Also
in
Pavel
Ivanov
v.
Russia,
the
state
convicted
an
author
who
published
a
series
of
articles
portraying
Jews
as
the
source
of
evil
in
Russia.
In
response
to
displaying
a
poster
of
the
burning
Twin
Towers
along
with
a
call
for
Muslim
expulsion
from
Britain,
the
UK
government
convicted
a
man
of
aggravated
hostility
towards
a
religious
group
(Norwood
v.
the
United
Kingdom).
In
each
of
these
cases
and
others
(see
Garaudy
v.
France),
the
ECtHR
has
clearly
demonstrated
support
for
the
duty
of
states
under

32. 32
the
European
Convention
not
only
to
have
laws
prohibiting
hate
speech
in
their
jurisdictions,
but
an
obligation
also
to
activate
those
laws
by
prosecuting
violators.
Moreover,
when
cases
actually
make
it
to
trial,
the
Strasbourg
Court
favors
an
expansive
reading
of
state
duty
to
regulate
hate
speech
under
the
European
Convention.
The
case
Vona
v.
Hungary
resulted
from
an
organization
presenting
messages
in
paramilitary
marches
that
had
an
intimidating
effect
on
the
Roma
minority
within
Hungary.
The
ECtHR
determined
that,
if
a
group’s
threatening
expression
was
aimed
at
another
group
because
of
their
race,
a
state
should
take
preventative
measures
in
protecting
the
rights
of
others
(para.
69).
In
Féret
v.
Belgium,
the
ECtHR
upheld
the
conviction
of
Féret,
a
Front
National/Nationaal
Front
political
party
member
in
Belgium’s
Parliament,
for
distributing
leaflets
with
Islamophobic
and
anti-­‐
immigration
messages.
Since
the
messages
Féret
distributed
had
been
liable
to
provoke
feelings
of
hate
towards
foreigners
in
Belgium,
the
ECtHR
reasoned
that
the
state
had
a
duty
to
prevent
public
disorder
and
protect
the
rights
of
immigrants
in
Belgium
(para.
77-­‐78).
Leroy
v.
France
concerned
the
sentencing
of
a
cartoonist
in
the
Basque
Country
who
glorified
the
September
11
attacks
on
America.
The
ECtHR
determined
that
the
cartoon,
despite
the
newspaper’s
limited
circulation,
has
caused
a
public
reaction
capable
of
sparking
violence
and
threatening
public
order,
thus
France
had
an
obligation
to
arrest
the
artist
(para.
45).
The
European
Court
has
a
tendency
to
reserve
state
violations
of
Article
10
only
when
it
comes
to
journalists
working
impartially.
The
ECtHR
in
Jersild
v.
Denmark
deemed
Jersild’s
documentary
on
the
Greenjackets’
racist
views
as

33. 33
intended
to
inform
the
public,
rather
than
propagating
racist
ideas,
thus
ruling
his
conviction
a
violation
of
his
Article
10
rights
(para.
32).
The
case
Dink
v.
Turkey
resulted
from
the
death
of
a
Turkish
journalist
of
Armenian
origin
who
provoked
virulent
reactions
among
extremists
groups
after
publishing
articles
criticizing
Turkey’s
denial
of
the
1915
Armenian
genocide.
The
ECtHR
concluded
that
the
state
had
failed
both
to
protect
Dink’s
life,
since
he
had
been
writing
as
a
journalist,
and
infringed
his
Article
10
right
to
freedom
of
expression
when
the
state
brought
charges
against
him
before
his
death
(para.
137,
138).
Additionally
in
Dink,
the
Strasbourg
Court
signaled
a
duty
for
states
to
create
favorable
public
space
for
the
dissemination
of
opinions
and
ideas
contrary
to
those
endorsed
by
the
government
(para.
137).
However,
in
Surek
v.
Turkey,
the
ECtHR
upheld
the
state
conviction
of
Surek
for
publishing
in
his
paper
two
editorials
condemning
the
suppression
of
Kurdish
people
by
the
Turkish
state;
the
articles,
reasoned
the
court,
in
essence
amounted
to
a
call
for
revenge
that
threatened
public
order
(para.
62).
Thus,
as
long
as
journalists
work
objectively,
the
Strasbourg
Court
seems
interested
in
protecting
their
freedom
of
expression
(and
press)
regardless
if
the
content
hones
in
on
susceptible
groups.
In
other
cases
relating
to
state
limits
on
freedom
of
expression
in
preventing
speech
aimed
at
inciting
hatred
towards
vulnerable
groups,
the
European
Court
has
overwhelmingly
upheld
state
convictions
in
supporting
state
obligations
under
the
ECHR.

34. 34
Africa
and
the
Americas
also
have
binding
human
rights
treaties.
In
contrast
to
Europe,
however,
there
is
little
legal
jurisprudence
supporting
hate
speech
regulation
provisions.
Academics
offer
suggestions
for
the
lack
of
jurisprudence
on
state
governance
of
hate
speech.
Explanations
include
procedural
differences
where
individuals
in
the
Americas
system
cannot
petition
the
court
as
easily
as
in
the
European
system;
heightened
immediate
focus
on
certain
rights,
like
to
life;
and,
in
the
case
of
the
African
system,
both
age
-­‐
a
lack
of
time
in
building
jurisprudence
–
and
lack
of
faith
in
the
actual
system
(Bertoni,
335;
Wachira,
2).
the
Americas
The
Organization
of
American
States
adopted
its
binding
human
rights
treaty
for
the
Americas
system
in
1969.
In
the
American
Convention
on
Human
Rights,
Article
13
concerns
hate
speech
regulation.
Section
1
in
that
Article
guarantees
freedom
of
expression,
but
Section
3
limits
that
freedom
in
instances
of
hate
speech,
mandating
that
such
“advocacy
of
national,
racial,
or
religious
hatred
that
constitutes
incitements
to
lawless
violence
.
.
.
shall
be
considered
as
offenses
punishable
by
law.”
The
American
Court
has
interpreted
legal
obligation
on
states
to
regulate
hate
speech
in
only
one
notable
case
concerning
the
extrajudicial
execution
of
a
prominent
Colombian
Senator
for
expressing
differing
opinions
from
the
state:
Manuel
Cepeda
Vargas
v.
Colombia.
The
American
Court’s
decision
in
this
case,
however,
expanded
state
duties
significantly.

35. 35
The
Manuel
Vargas
decision
mandated
a
state
obligation
to
refrain
from
encouraging
public
discontent
for
vulnerable
individuals
and
groups
and
“adopt,
whenever
appropriate,
the
measures
that
are
necessary
and
reasonable
to
prevent
or
protect
the
rights
of
those
who
are
in
that
situation”
(para.
173).
The
American
Court
also
declared
that
since
opposition
voices
are
“essential
in
a
democratic
society
.
.
.
[s]tates
must
guarantee
the
effective
participation
of
opposition
individuals,
groups
and
political
parties”
through
appropriate
laws,
regulations,
and
practices
that
realize
effective
utilization
of
Article
13
rights
equally
by
all
with
particular
attention
being
paid
to
vulnerable
groups
(para.
173).
Consequently,
in
Manuel
Vargas,
the
American
Court
broadens
the
explicit
state
legal
obligations
under
Article
13(3)
to
comprise
not
just
developing
regulation
but
also
ensuring
model
behavior
by
state
authorities
in
complying
fully
with
Article
13
mandates.
Africa
The
African
Charter
on
Human
and
Peoples’
Rights
(or
Banjul
Charter)
is
the
human
rights
treaty
governing
the
African
system.
Those
under
Banjul
Charter
jurisdiction
are
guaranteed
freedom
of
expression
in
Article
9.
The
African
system,
however,
is
unique
in
that
no
subsequent
explicit
limitation
to
that
freedom
is
codified.
However,
echoing
similar
language
to
ICCPR
Article
20(2)
and
ICERD
Article
4,
several
references
are
made
in
the
Banjul
Charter
protecting
vulnerable
groups.
For
instance,
Article
12(5)
prohibits
mass
expulsion
“aimed
at
national,
racial,
ethnic
or
religious
groups.”
Other
than
women,
these
groups
are
the
only

36. 36
ones
explicitly
deriving
special
protection
in
the
Banjul
Charter,
indicating
their
need
for
particular
state
legal
protection.
Then
Article
17(2)
states:
“every
individual
may
freely
take
part
in
the
cultural
life
of
his
community,”
while
Article
20
incorporates
the
right
for
“oppressed
peoples
.
.
.
to
free
themselves
from
the
bonds
of
domination,”
with
a
right
to
state
assistance
in
that
struggle,
“be
it
political,
economic
or
cultural”
(2,
3).
The
African
Charter
here
uniquely
identifies
a
legal
obligation
in
protecting
vulnerable
groups
from
oppression
may
easily
be
read
to
include
by
means
of
political
and
cultural
hate
speech.
The
Banjul
Charter
is
distinctive
in
that
it
categorically
lists
considerably
more
state
duties
than
its
companion
regional
and
global
human
rights
treaties.
Article
25
proclaims
substantial
state
duties:
to
promote
and
ensure
through
teaching,
education
and
publication,
the
respect
of
the
rights
and
freedoms
contained
in
the
present
Charter
and
to
see
to
it
that
these
freedoms
and
rights
as
well
as
corresponding
obligations
and
duties
are
understood
(my
emphasis)
Also
unique
to
the
African
Charter
is
not
only
an
explicit
broadened
list
of
state
duties,
but
also
detailed
obligations
placed
on
individuals,
as
in
Article
29(7),
which
calls
for
an
individual
“spirit
of
toleration,
dialogue
and
consultation”
with
others.
Taking
the
Article
25
state
party
duty
to
ensure
that
African
Charter
rights
and
corresponding
duties
are
not
only
promoted
but
also
understood
along
with
the
various
provisions
ensuring
cultural
development
(Art.
22(2)),
respect
(Art.
17),
and
individual
tolerance
and
nondiscrimination
(Art.
29(7);
28),
the
overall
duty
for
the
state
to
regulate
against
expression
aimed
at
incitement
of
hatred
against
national,
racial,
or
religious
groups
can
comfortably
be
inferred.

37. 37
On
a
few
occasions,
the
African
Commission
on
Human
and
Peoples’
Rights
has
referenced
state
duties
when
clarifying
African
Charter
provisions:
one
particularly
focusing
on
media
and
vulnerable
groups
in
Africa
and
the
other
on
torture
and
intimidation.
Adopted
by
the
ACHPR
in
2002,
the
“Resolution
on
the
Adoption
of
the
Declaration
of
Principles
on
Freedom
of
Expression
in
Africa,”
binds
states
to
protect
marginalized,
linguistic,
and
cultural
groups
when
it
comes
to
freedom
of
expression
regarding
media
in
Africa
(III
Diversity).
This
resolution
also
calls
on
states
to
ensure
impartial
regulatory
bodies
to
hear
complaints
regarding
media
content,
thus
offering
a
safe
space
for
susceptible
groups
to
bring
hate
speech
issues
forward
(VII
Regulatory
Bodies).
A
second
ACHPR
resolution,
on
torture,
declares
a
state
duty
to
protect
victims
from
violence
“or
any
other
form
of
intimidation,”
thereby
laying
groundwork
for
protecting
the
rights
of
vulnerable
groups
in
society
against
menacing
hate
speech
(my
emphasis,
III:
Responding
to
the
Needs
of
Victims).

38. 38
VI.
Discussion,
Conclusion,
and
Continuation
This
study
focused
on
the
scope
of
international
legal
obligations
on
states
to
regulating
hate
speech
in
their
jurisdiction.
Based
on
identifying
codified
provisions
for
governing
hate
speech
in
international
human
rights
law,
this
study
hypothesizes
two
possible
scenarios:
international
law
staying
precisely
to
the
language
of
hate
speech
provisions
in
international
human
rights
treaties
(H1)
or
international
law
demanding
more
from
states
in
regulating
hate
speech
than
what
is
merely
codified
in
existing
treaty
provisions
(H2).
A
definitive
answer
to
the
research
inquiry
–
in
what
ways
are
states
meant
to
regulate
hate
speech
according
to
international
law
–
should
emerge
by
applying
the
research
findings
detailed
in
the
previous
section
to
the
study’s
hypotheses.
The
Human
Rights
Committee
has
clearly
interpreted
ICCPR
provisions
beyond
the
explicit
mandate
for
states
to
pass
legislation
prohibiting
hate
speech.
In
fully
complying
with
Articles
19
and
20
of
the
ICCPR,
the
HRC
has
declared
state
duties,
among
others,
to
take
effective
preventative
measures
against
hate
speech
as
well
as
appropriate
sanctions
for
violators,
thereby
moving
well
beyond
the
explicit
language
of
Article
20.
CERD
also
has
impelled
states
to
undertake
more
than
simply
passing
legislation
outlawing
hate
speech
–
in
accordance
with
ICERD
Article
4
–
including
taking
effective
preventative
measures,
improving
criminal
justice
education
and
training,
and
establishing
national
human
rights
institutions
to
aid
states
in
treaty
compliance
monitoring,
public
education,
and
state
reporting
to
CERD.
The
jurisprudence
supplied
by
both
these
global
treaty
bodies
regarding
hate