CCPR/C/117/D/2124/2011
6.
Finally, we wish to register our position, according to which article 20(2) of the
Covenant does not create an independent human right to be protected by legislation
prohibiting hate speech. Instead, the article imposes an obligation on States parties to pass
legislation in order to protect national, racial or religious groups against discrimination,
hostility and violence – i.e., to prohibit an infringement of certain aspects of Covenant
rights, such as articles 6 (right to life), 7 (prohibition of ill-treatment), 9 (right to security of
person) and 26 (prohibition of discrimination).
7.
Like in the case of article 2(2) of the Covenant, b which lays out a general duty to
implement the Covenant through laws or other measures, we consider the obligation to pass
implementing legislation protecting Covenant rights a ‘second-order obligation’ incapable
of creating a right for individuals that is independent of the rights which the implementing
legislation purports to protect. Thus, article 20(2) merely reinforces certain aspects of
Covenant rights by requiring States parties to adopt specific legislative measures to prohibit
their infringement. And it is only when these other rights have actually been put at risk of
infringement or actually infringed – e.g., when hate speech had been in fact uttered – that
the failure by the State party to pass prohibiting legislation may have contributed to a
human rights violation occurring.
8.
Consequently, we are of the view that victims of human rights violations should not
be able to invoke article 20(2) separately, but only in conjunction with other Covenant
rights, such as articles 6, 7, 9 and 26, which the prohibiting legislation was designed to
protect.c
b
c
24
See e.g., Comm. No. Poliakov v. Belarus, Views of the Committee of 17 July 2014, para. 7.4.
For support in the travaux préparatoires, see supra note 1, at p. 407 [“[the article] contained no
provision setting forth any particular right or freedom”].