The chapter examines the more recent attempts to further develop international standards providing protection against hate speech. It outlines the content of the proposed standards and the major players who either spearheaded or resisted the standard-setting efforts. It then examines states’ polarized positions on the meaning of the international norm prohibiting incitement to discrimination, hostility, or violence and the need for new international standards on hate speech. It also examines how the standard-setting agenda’s focus on the religious grounds of hate speech complicated the process of reaching international consensus on the further development or refinement of that norm. More specifically, it analyses how the interaction of the proposed standards with the scope of freedom of religion, and their conflation of racism and advocacy of religious hatred, further increased opposition to their introduction. Finally, the chapter examines how certain actions and characteristics of both supporters and opponents of the standard-setting agenda contributed to the failure of that agenda.

This chapter analyses in detail the travaux préparatoires of Article 20(2) of the ICCPR. The Article’s drafting history reveals that efforts to address advocacy of hatred within the ICCPR were, to a large extent, triggered by the bitter experiences caused by Nazi and fascist hate propaganda before and during the Second World War. The highly-charged and ideologically-polarized geopolitical environment of the cold war in the 1950s and 1960s significantly influenced the Article’s negotiations. The travaux préparatoires reveal that inclusion of the norm prohibiting incitement to discrimination, hostility, or violence within the ICCPR was highly controversial. The issues that caused profound controversies between the supporters and opponents of Article 20(2) relate directly to the five internal features of the norm identified in this book, which can be regarded as key thematic threads running through the debates.

The chapter examines, in detail, five internal features that characterize the norm providing protection from incitement to discrimination, hostility, or violence, as codified in Article 20(2) of the ICCPR. These five features are the ‘emotive’ component, the ‘incitement’ component, the tensions between equality and liberty rights of speakers and members of targeted groups, the ‘group identity’ component, and, finally, the ‘religion’ component. The chapter elaborates on the dilemmas of interpretation and implementation generated by these internal features. It illustrates how the minimalist and maximalist approaches to the legal regulation of hate speech perceive these five features differently. Furthermore, they clarify how the libertarian and egalitarian approaches to freedom of expression, as well as the individualist and communitarian approaches to rights, address differently the conundrums created by the five features. This ultimately generates different delineations of the meaning and scope of the norm, and different views on whether or not legalistic constraints on hate speech (or, rather, quasi-legalistic restrictions) are warranted, as well as on the scope and nature of such restrictions.

This chapter analyses in detail the travaux préparatoires of Article 20(2) of the ICCPR. The Article’s drafting history reveals that efforts to address advocacy of hatred within the ICCPR were, to a large extent, triggered by the bitter experiences caused by Nazi and fascist hate propaganda before and during the Second World War. The highly charged and ideologically polarized geopolitical environment of the cold war in the 1950s and 1960s significantly influenced the Article’s negotiations. The travaux préparatoires reveal that inclusion of the norm prohibiting incitement to discrimination, hostility, or violence within the ICCPR was highly controversial. The issues that caused profound controversies between the supporters and opponents of Article 20(2) relate directly to the five internal features of the norm identified in this book, which can be regarded as key thematic threads running through the debates.

Reconciling protection against hate speech with the safeguarding of fundamental freedoms, particularly freedom of expression, has, historically, posed considerable regulatory challenges. Nevertheless, a number of developments have triggered a new wave of public, political, legal, and academic debates about the questions and conundrums underlying the legal regulation of hate speech. This chapter clarifies that the new globalized hate speech dynamics which have made the nature and scale of the challenges resulting from hate speech become ever more complex and wide-ranging. These dynamics have drawn renewed attention to Article 20(2) of the ICCPR which obliges states to legally prohibit advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence. The chapter illustrates that some of the dominant approaches to Article 20(2) of the ICCPR adopt a very narrow conception of the Article. These approaches conceive of the Article as a mere limitation clause on the exercise of freedom of expression. The chapter proposes the validity of a different approach by arguing that the Article sets forth an autonomous right to protection from incitement to discrimination, hostility, or violence.

The chapter argues that finding a universal normative framework for the right to protection from incitement to hatred is by no means straightforward. It does not appear possible to secure broad agreement on an approach that moves beyond the current level of abstraction by adding specificity to the content and effects of proscribed advocacy of hatred. Not only have the five internal features of the right significantly influenced its problematic journey within IHRL; they also appear to preclude the progressive normative development of IHRL in the area of incitement to hatred as a response to contemporary problems in hate speech regulation. The chapter argues that in order for the international community to overcome such paralysis, efforts to further develop the international norm prohibiting incitement to hatred shall be directed towards approaches that place more emphasis on procedural development than legal or textual development. This approach would not answer the difficult question of what the precise legal threshold of Article 20(2) is; rather, it would address how to determine such threshold within different national contexts.