Transcript International Human Rights Law

Religious Sensitivities in
Pluralist Societies & Freedom
of Expression:
Conceptualizing the Limits
of Extreme Speech
Jeroen Temperman, Erasmus University Rotterdam
Counter-Defamation Approach
(i) Seeks to shift the emphasis from protection
of the rights of individuals to protection of
religions per se;
(ii) Introduces grounds for limitation of human
rights that are not –and should not becomerecognized by international human rights
law.
Jeroen Temperman, Erasmus University Rotterdam
European Court HR & Religious
Defamation
Three objectionable trends:
i. Development of abstract notion of a ‘right not to be insulted in
one’s religious feelings’
ii. ECtHR fails to realize that there is no conflict between FoE &
FoRB in abstracto:
•
•
actual (rare) clashes need to be substantiated;
proper, critical balance must be struck
iii. ECtHR sanctions discriminatory laws
Jeroen Temperman, Erasmus University Rotterdam
(i) A ‘right not to be insulted in
one’s religious feelings’?
 “the right of citizens not to be offended in their religious feelings
by publications” (Gay News)
 “the respect for the religious feelings of believers as guaranteed
in Article 9 [of the European Convention on Human Rights]”
(Otto Preminger)
 “the right of citizens not to be insulted in their religious feelings”
(Otto Preminger)
 “the right of citizens not to be insulted in their religious feelings”
(Wingrove)
 “[need to] to ensure respect for the religious doctrines and
beliefs of others” (Murphy)
Jeroen Temperman, Erasmus University Rotterdam
(ii) conflict between FoE & FoRB
in abstracto?
E.g.: İ.A. v. Turkey:
Freedom of expression (publisher) restricted on the basis of
existing ground for limitation (“right of others to respect for
their freedom of thought, conscience and religion”); however,


no inquiry whatsoever into the Q as to whether the two
rights indeed conflict in this particular case
Balancing rights without a legal necessity to do so might
actually lead to infringements
Jeroen Temperman, Erasmus University Rotterdam
(iii) ECtHR sanctions
discriminatory laws
E.g. Wingrove & Gay News:
“It is true that the English law of blasphemy only extends to the
Christian faith. … The uncontested fact that the law of
blasphemy does not treat on an equal footing the different
religions practised in the United Kingdom does not detract from
the legitimacy of the aim pursued in the present context”
Jeroen Temperman, Erasmus University Rotterdam
Way Forward: Re-Conceptualizing
the Abuse of Right Doctrine
No equivalent of Art. 20(2) ICCPR in the
European Convention
Article 17 ECHR:
Nothing in this Convention may be interpreted as implying for any
State, group or person any right to engage in any activity or
perform any act aimed at the destruction on any of the rights and
freedoms set forth herein or at their limitation to a greater extent
than is provided for in the Convention.
Caveats/suggestions:
 This approach does not cover all hate speech cases
 Abuse of rights concern to be incorporated into
consideration of the merits, not as admissibility issue
Article 20(2) International Covenant
on Civil and Political Rights
“Any advocacy of…religious hatred that
constitutes incitement to
discrimination, hostility or violence
shall be prohibited by law.”
Jeroen Temperman, Erasmus University Rotterdam
Human Rights Committee & Article
20(2) ICCPR
Decisive factors:
i. the actual speech (not subjective reaction
by targeted group): element of incitement
or not?
ii. the reaction or potential reaction by third
persons vis-à-vis the group targeted by the
speech/publication: fundamental rights of
others threatened or not?
E.g. Human Rights Committee, Malcolm Ross v. Canada (2000)
Religious Hate Speech Legislation
 (Religious) Hate Speech Bills, e.g. UK, Australia, Switzerland
 Generic Penal Code provisions on incitement, e.g. Brazil,
Canada, Croatia, Denmark, Finland, Germany, India,
Netherlands, New Zealand, Serbia, Sweden
 ‘Denial laws’; e.g. Austria, Belgium, France
 De facto application of defamation laws to counter religious
hate speech (e.g. Iceland, Norway): important role judge
 Purely a matter of jurisprudence: liberal democracies with no
hate speech legislation (e.g. USA): ‘clear and present danger’,
‘imminent action’ doctrine
 Regulations tackling specific forms of religious hate speech
Way forward
Further conceptualization of the state duty (art. 20(2) ICCPR) to
prohibit religious hate speech; more particularly:
 To conceptualize the prohibition of ‘religious hate speech’ as a notion of
international law;
 To identify legal benchmarks and factors that help determine the
phenomenon religious hate speech;
 To identify state obligations emanating from the internationally codified
religious hate speech prohibition;
 To consider safeguards against governmental abuse of hate speech
legislation.
Jeroen Temperman, Erasmus University Rotterdam
Conceptualization of ‘Religion
Hate Speech’ Prohibition
Scope:

Hate speech vis-à-vis a specific
religious group;

Religion-inspired hate speech.
Jeroen Temperman, Erasmus University Rotterdam
Draft-GC on Art. 19 & 20 ICCPR
 State obligations under 20(2):
 Legislative action required
 Ex post facto punishment and/or early warning system?
 Definition of key terms:
 Advocacy: “By advocacy is meant public forms of expression that are
intended to elicit action or response”
 Hatred: “By hatred is meant intense emotions of opprobrium, enmity
and detestation towards a target group”
 Incitement: “Incitement refers to the need for the advocacy to be likely
to trigger imminent acts of discrimination, hostility or violence. It would
be sufficient that the incitement relate to any one of the three
outcomes: discrimination, hostility or violence”.
 Relation to Art. 19:,
 Restrictions based on 20(2) require also to comply with system of 19(3)
 Relation to religious defamation/blasphemy bills:
 To be repealed (para. 48)
Example (Geert Wilders case): Art.
137d Dutch Penal Code
“Any person who publicly, orally or in
writing or image, incites to hatred or
discrimination against persons…on
account of their religion or belief…may
be punished with imprisonment of
maximally one year or a third category
fine.”