A/HRC/44/58
47.
The Convention and the Covenant also impose strong limitations on the propagation
of racist and xenophobic ideas, and outlaw the advocacy of national, racial or religious
prejudices that amount to incitement to discrimination, hostility or violence. Speech that
constitutes advocacy of antisemitic racial and religious prejudices that amount to incitement
to discrimination, hostility or violence is thus unlawful and prohibited under the applicable
legal frameworks.
48.
In accordance with article 2 (1) of the International Convention on the Elimination
of All Forms of Racial Discrimination, Member States should not sponsor, defend or
support racial discrimination by any persons or organizations, including those espousing
racial superiority and intolerance. Article 4 of the Convention requires States parties to
condemn all propaganda and all organizations which are based on ideas or theories of
superiority of one race or group of persons of one colour or ethnic origin, or which attempt
to justify or promote racial hatred and discrimination in any form. This means that States
parties must take action to prohibit organizations meeting the conditions articulated in
article 4 (b), including in contexts in which such organizations use antisemitic fervour to
attempt to mainstream their extreme ideologies or racial, ethnic or religious hatred and
intolerance. Legislation alone is not sufficient. Article 6 of the Convention makes clear that
effective protection from and remedies for racial discrimination are just as important as
formal provisions.
49.
Article 4 of the Convention also requires States parties to undertake to adopt
immediate and positive measures designed to eradicate all incitement to, or acts of, such
discrimination, and to make punishable by law all dissemination of ideas based on racial
superiority or hatred, incitement to racial discrimination, as well as all acts of violence or
incitement to such acts against any race or group of persons of another colour or ethnic
origin. The Committee on the Elimination of Racial Discrimination has recommended
concrete guidance for States parties on the adoption of legislation combating racist speech
falling under article 4, and the Special Rapporteur encourages States to review the
Committee’s general recommendation No. 35 (2013) on combating racist hate speech in
order to benefit from that guidance. In the general recommendation, the Committee
highlights a number of factors that should inform the practice of Member States.
Significantly, the Committee recalls that the proscription of racist hate speech and the
flourishing of freedom of expression should be seen as complementary and not the
expression of a zero-sum game. In paragraph 45 of the general recommendation, the
Committee states that, instead, the rights to equality and freedom from discrimination, and
the right to freedom of expression, should be fully reflected in law, policy and practice as
mutually supportive human rights, as discussed in more detail below.
50.
Article 19 of the International Covenant on Civil and Political Rights protects
freedom of opinion and of expression, which may be subject to certain restrictions, but only
such as are provided by law and are necessary for respect of the rights or reputations of
others or for the protection of national security or of public order, or of public health or
morals. Any restriction on freedom of speech must not only be a matter of necessity, but
must be proportionately tailored to achieve the legitimate end that warrants the restriction.38
Article 20 of the Covenant states specifically that States parties must prohibit, by law, any
advocacy of national, racial or religious hatred that constitutes incitement to discrimination,
hostility or violence. The Human Rights Committee and a number of other human rights
mechanisms have interpreted this provision as creating a high threshold, because limitations
on speech must remain exceptional. When individuals or groups meet this high threshold,
however, including in the context of antisemitic hate speech, States must hold these actors
to account for their violations of international human rights law.
51.
Freedom of expression is also enshrined in the International Convention on the
Elimination of All Forms of Racial Discrimination. The Committee on the Elimination of
Racial Discrimination has reiterated that freedom of expression is integrated into the
Convention, and that the Convention contributes to a fuller understanding of the parameters
38
12
Human Rights Committee, general comment No. 34 (2011) on the freedoms of opinion and
expression, paras. 33–35. See also, for example, Velichkin v. Belarus (CCPR/C/85/D/1022/2001).