UN HRC: Initiative to criminalise “acts of a racist and xenophobic nature” must adhere to freedom of expression standards

ARTICLE 19 unequivocally rejects racial discrimination and works globally to counter it, including by promoting the freedom of expression rights of all people.[1] For this reason, we urge States at the 34^th Session of the UN Human Rights Council (HRC) to defer consideration of draft resolution L.31 on the “Elaboration of International Complementary Standards to the International Convention of the Elimination of All Forms of Racial Discrimination”, until a clear case for complementary standards has been made, and to guard against any new binding instrument that may be used as a vehicle to undermine protections for freedom of expression and equality.

A draft resolution tabled at the 34^th Session of the HRC calls for the Ad Hoc Committee on the Elaboration of Complementary Standards to begin negotiations on an Additional Protocol to the International Convention on the Elimination of all forms of Racial Discrimination (ICERD) to “criminalise acts of a racist and xenophobic nature.” The 47-member UN human rights body will consider the resolution for adoption on the 23^rd or 24^th March 2017.

ARTICLE 19 has serious concerns that, if the meaning of “acts” in the draft resolution is interpreted to include expression, some States may use the negotiation of an Additional Protocol to weaken international protections for the independent and mutually reinforcing rights to freedom of expression and equality. We consider that new complementary standards to criminalise expression “of a racist and xenophobic nature” are not necessary. Existing international human rights law instruments provide a clear normative framework for when States must limit, or where they may permissibly limit, ‘hate speech’, specifically the advocacy of racial and other forms of discriminatory hatred constituting incitement to discrimination, hostility or violence. This framework includes Articles 19 and 20(2) of the International Covenant on Civil and Political Rights (ICCPR), General Comment No.34 of the Human Rights Committee, and the Rabat Plan of Action.

During a panel discussion on racial profiling and racial incitement held at the 34^th Session of the HRC on 17 March, ARTICLE 19 emphasised that while racial discrimination and ‘hate speech’ cause considerable harms, the existing international legal framework is adequate to address them, and also to respond to contemporary challenges, such as a rise in nationalist populism and other forms of violent ideology, including online. We stressed that greater practical efforts for the implementation of existing standards must be prioritised, and warned against the securitisation of rights in response to national security challenges, as this compounds existing problems of marginalisation.[2]

If negotiations for an Additional Protocol to the ICERD proceed, ARTICLE 19 urges States to ensure that they do not depart from established international human rights law pertaining to freedom of expression. Otherwise, the negotiations could become a vehicle for some States to justify illegitimate criminal prohibitions on expression, such as over-broad ‘hate speech’ laws, or criminal prohibitions on ‘blasphemy’, ‘insult’, ‘false news’, or ‘sedition’. These types of laws are often abused to target dissent and criticism, in particular by religion or belief minorities and human rights defenders, to shut down open debate in a way that is counterproductive to fostering understanding and acceptance within and between communities. The principle that people are rights holders, and that abstract ideas, religions and their symbols are not, must not be compromised through the elaboration of complementary standards.

ARTICLE 19 notes that States participating in the Ad Hoc Committee on Complementary Standards have yet to reach consensus on whether there are normative gaps in the ICERD that necessitate new standards. In particular, ‘xenophobia’ remains a contested concept after almost a decade of deliberations.[3] Some States have previously proposed that the Ad Hoc Committee elaborate complementary standards to address ‘defamation of religions’,[4] though these discussions largely preceded the adoption of HRC Resolution 16/18, General Comment No.34, and the Rabat Plan of Action, which have all roundly discredited this concept.[5]

More recently, some States have argued that new standards may be required to sanction ‘hate speech’ online, and counter the rise of nationalist populism or other forms of violent ideology, while remaining ambiguous on what they consider ‘hate speech’ to mean.[6] While some present these contemporary challenges as protection gaps, ARTICLE 19 considers that in many instances these examples constitute forms of expression that States cannot legitimately restrict, especially not through the criminal law, and that positive non-coercive measures should instead be considered to counter such phenomena. Where the threshold for legitimate limitations is reached, whether in relation to online or offline expression, existing human rights instruments and standards provide sufficient guidance to States to ensure any restrictions are necessary and proportionate, often requiring recourse to less severe measures than criminal sanctions, except in the most exceptional and severe circumstances.[7]

We urge caution against basing any new standards on concepts not well defined in law, or in creating separate standards or sanctions regimes to address online speech, or in presuming that the criminal law provides effective solutions in all contexts to what are complex societal problems. Any attempt to lower the threshold set in the Rabat Plan of Action, for example through an expansive interpretation of ‘xenophobia’ as a basis for limiting expression, or by treating online speech as distinct, should be avoided. Protracted negotiations of an Additional Protocol in this direction, likely to take several years and lead to asymmetric ratification, would distort international human rights law while distracting resources from efforts to close the ‘implementation gap’ in relation to States’ existing obligations. This will have harmful consequences for those seeking accountability and redress for human rights violations on the ground.

In light of these concerns, ARTICLE 19 calls on the sponsors of draft resolution A/HRC/34/L.31 to defer this initiative to a future HRC Session, so that a clear case for the necessity of complementary standards can be made, and so their negotiation can be initiated from a position of consensus. In the absence of a deferral, we urge all Member States to make statements during adoption of A/HRC/34/L.31 that any new Additional Protocol must comply with existing international human rights law on freedom of expression, in particular the legitimate grounds for limitations set out in Articles 19 and 20(2) of the ICCPR.