Josh Black hears the UN High Commissioner for Human Rights, Navi Pillay, discuss the quest for shared laws and standards.
Navi Pillay, a South African High Court Judge, was appointed UN High Commissioner for Human Rights in 2008 after a spell on the International Criminal Tribunal for Rwanda. On 15 February 2012 she gave a speech at the London School of Economics detailing the process of getting an international consensus on freedom of expression.
The foundation of free speech rights in international law is the UN’s International Covenant on Civil and Political Rights (ICCPR), which Free Speech Debate has explored in greater depth here. The Covenant, drafted in the 1960s but effective as of 1976, deliberately places the right to ‘seek, receive and impart information and ideas of all kinds’ (Article 19) next to Article 20, with its obligations on states to prohibit “advocacy for war” and “national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.” There is therefore a creative tension between two very different kinds of rights.
For Pillay, the purpose of free speech legislation was to distinguish between expression targeting ideas, which should be protected, and expression targeting human beings, which may be restricted. Given that laws against lèse-majesté or allowing the protection of public officials exist in many countries, the latter is not at all clear-cut. Moreover, Pillay noted that the issue of blasphemy occupies a greater proportion of her time than any other issue, making the sphere of ideas that can legitimately be protected contentious.
Several different bodies under the UN umbrella contribute to the interpretation of these rules. The Committee on the Elimination of Racial Discrimination (CERD) has been active in discussions on the types of hate speech that should be prohibited. In August 2005, CERD found that the Norwegian government was obliged to prohibit a march by a neo-Nazi organisation. Under CERD’s interpretation, states should be vigilant about the potential for speech to develop into the threat of violence on racial grounds. As such, denial of the Holocaust could be criminalised, as it is in several European countries. CERD has occasionally indicated that intent and a clear causative link should be found, but it is far from clear that these are required.
On the other hand, the Human Rights Committee (UNHRC) has attempted to find a way through the impasse by focussing on individual rights. Pillay believes that this could be accomplished without further legislation – since individuals were adequately protected under existing laws, belief systems did not warrant further legislation. After an extensive period of consultation culminating in the Rabat Plan of Action, this was codified in UNHRC Resolution 16/18; passed unanimously.
Pillay was at pains to point out the success of the UNHRC process, particularly given the tendency for the UN General Assembly to become a forum for political grandstanding, and for countries founded in some way on religious beliefs to pressure the UNHRC when incidents of blasphemy arose from time to time. While universal agreement had not been reached, Pillay felt that at very least, the process had identified the necessary norms for defending free speech. It was now up to various stakeholders to continue the process through education, the disavowal of unfortunate stereotypes and the establishment of media standards and complaints procedures.
Hate speech remains a complicated issue. Determining whether views expressed with a racial element are an incitement either to violence or discrimination is often problematic. The UN is often ill-placed to determine whether supposedly universal laws are applicable in local contexts. For instance, Pillay noted CERD’s tendency to support laws against Holocaust denial, but expressed a personal opinion that a law against the denial of the Rwandan genocide would not be appropriate.
Audience members questioned the empirical evidence for the efficacy of restrictions on free speech and whether Article 20 of the Covenant could not be extended to challenge the legitimacy of citizenship laws based on ethnicity. This very range of opinions suggests that a broad consensus in this most political of organisations may be elusive, but Pillay’s declared intention to put international human rights law above emotion may yet produce results.