A/HRC/9/12
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A. International instruments
46. The principal human rights instruments contain specific provisions prohibiting incitement
to national, racial or religious hatred. Article 7 of the Universal Declaration of Human Rights
refers, in more general terms, to incitement to discrimination by affirming that “All are entitled
to equal protection against any discrimination in violation of this Declaration and against any
incitement to such discrimination.”
47. The International Covenant on Civil and Political Rights, for its part, deals more
specifically with the interdependence of freedom of expression and other fundamental rights.
Limitations on the right to freedom of expression are introduced in articles 19 and 20 of the
Covenant. Article 19 refers to “special duties and responsibilities” relating to the exercise of
freedom of expression, which may be subject to certain restrictions to ensure “respect of the
rights or reputations of others” and the “protection of national security or of public order
(ordre public) or of public health or morals”. However, as formulated by the Covenant, these
restrictions are not binding; moreover, to avoid their arbitrary application, the limitations must be
“such as are provided by law”.
48. In this connection, the Special Rapporteur also refers to general comment No. 10 of the
Human Rights Committee concerning article 19 of the Covenant. In its comment, the Committee
expressly underlines that “when a State party imposes certain restrictions on the exercise of
freedom of expression, these may not put in jeopardy the right itself. Paragraph 3 lays down
conditions and it is only subject to these conditions that restrictions may be imposed: the
restrictions must be “provided by law”; they may only be imposed for one of the purposes set out
in subparagraphs (a) and (b) of paragraph 3; and they must be justified as being “necessary” for
that State party for one of those purposes”. In declaring that restrictions relating to the exercise
of freedom of expression may not put in jeopardy the right itself, the Human Rights Committee
clarifies the notion of complementarity - and not competition - between the different rights
enumerated in the Covenant.
49. The question of incitement to national, racial or religious hatred is addressed more
explicitly in article 20 of the Covenant, which contains further limitations to the right to freedom
of expression. The Special Rapporteur points out that the limitations prescribed by this article are
not optional but binding for all the signatories. According to this article, “Any advocacy of
national, racial or religious hatred that constitutes incitement to religious discrimination, hostility
or violence shall be prohibited by law.”
50. With regard to the interpretation of article 20 of the Covenant, the Special Rapporteur
refers to the joint report submitted with the Special Rapporteur on freedom of religion or belief
to the second session of the Human Rights Council (A/HRC/2/3). The report mentions the
paucity of jurisprudence on article 20, reiterating that the interpretation of its terms and, in
particular, a definition of its threshold of application would be particularly welcome in order to
avoid confusion or simplistic conclusions regarding its application. In that regard, the two
Rapporteurs encouraged the Human Rights Committee to consider the possibility of adopting
complementary standards on the interrelations between freedom of expression, freedom of
religion and non-discrimination, in particular by drafting a general comment on article 20.
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