Protection against Religious Hatred under the UN ICCPR and the European Convention System
پاییز و زمستان 1394، دوره دهم - شماره 2 (3 صفحه - از 136 تا 138)
This paper will explore the exact relation between the right to freedom of expression and the prohibition of religious hatred that constitutes incitement to discrimination، hostility or violence. Considering the precise formulations of the substantive human rights norms of the International Covenant on Civil and Political Rights (Part III of the treaty: articles 6–27)، one could argue that the prohibition of religious hatred that constitutes incitement to discrimination، hostility or violence is the ‘odd-one-out’ in as far as this norm: (i) does not provide the individual with a clear right (it does specify the duty bearer: the state; however، this clause does not identify a right holder); (ii) if anything، actually constitutes a limit on another substantive human rights norm: the right to freedom of expression. The principal objective of this paper is to present a critical analysis of and to provide workable benchmarks and guidelines on the interplay between these two norms. In the context of the interrelatedness of the two norms it has been argued that the prohibition of advocacy of religious hatred should be interpreted as a restriction on the right to freedom of expression in a way that is consistent with the grounds for limitation that are listed by the provision on freedom of expression itself. That is to say، the prohibition of advocacy of religious hatred as a possible limit on free expression needs to be prescribed by law and applying this restriction must be necessary to uphold the fundamental rights of others (i.e. religious minorities، in the present context). Though this sheds some light on the relation between the two rights، many related issues are still to be resolved. Questions that will be addressed in this paper include: What is the legal threshold for determining whether a discriminatory speech or a speech that advances certain stereotypes constitutes religious hate speech?; Can an attack on a religious doctrine be so severe as to merit state interference، i.e. can an attack on religions (rather than on religious believers) amount to hate speech?; and how to draw the line between expressions about religious doctrine or ideology on the one hand and religious believers on the other?; What is the legal relevance of the position or function of the person behind the speech or publication (e.g. are there different thresholds for politicians، civilians، artists، etc.)?; What is the legal relevance of the type of media (which can range from internet blogs، to propaganda or quasi docu-type films broadcasted on the television or posted on the internet، to written materials) used when it comes to assessing hateful speech or publications? Is the ‘state of society’ legally relevant in determining the threshold for hate speech? (e.g. is there a different legal threshold in so-called genocidal societies and post-genocidal societies); What does the prohibition of advocacy of religious hatred mean in terms of state obligations?; how to transpose this norm into an adequate domestic anti-hate speech Act?; at what exact stage does the state need to interfere with the right to freedom of expression (i.e. is censorship ever merited or should the prohibition of hate speech solely translate into legal repercussions after the fact، that is، in reaction to illegal speech or publications)? The proposed output of the paper is a comprehensive principles model on the interplay between the right to freedom of expression and the prohibition of religious hatred that constitutes incitement to discrimination، hostility or violence، taking into account the relevant international human rights norms and jurisprudence surrounding the issue of hate speech.
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