Holocaust Denial and Hate Speech Revisited - To what extent freedom of expression should be guaranteed in international human rights law?

Dr Yutaka Arai (PhD (Cambridge), Lecturer in International Law & Human Rights Law, Univ. of Kent at Canterbury)

Saturday, 03 November, 2001; 7:30-9:30pm

Chetwynd Room, King's College

The European Convention on Human Rights, which was adopted in 1950 under the auspices of the Council of Europe, is considered as the most sophisticated international human rights treaty. With its membership now encompassing the former Communist countries, the Convention provides a special 'regime' founded on the common values of the enhanced protection of the rights and freedoms of citizens, rule of law and democracy. The primary purpose of this report is to clarify the extent to which freedom of expression can be guaranteed in relation to so-called 'controversial expression' which may negate the very foundations of human rights treaties. Critical analysis will focus on the ways in which the European Court of Human Rights has dealt with such polemical expression as revisionist views (ex. Holocaust denial etc.) and racist speech. The accumulation of the 40 years of case-law or acquis has now furnished detailed criteria for assessing whether interference with freedom of expression can be justified under the limitation clause. Here reference is made to the so-called 'margin of appreciation' doctrine, which allows a Member State a certain scope of discretion in evaluating the extent to which, and the manner in which, particular rights and freedoms should be guaranteed. The present reporter favours the limited but continuing utility of the doctrine, considering that the doctrine's operation serves to preserve the value-pluralism in Europe and to demarcate the constitutional powers between the Member State's sovereignty and the supervisory power of the European Court of Human Rights. When confronted with anti-Convention values, however, the Court has not applied the doctrine but tipped the balance in favour of freedom of expression. While taking into account the case-law of the Human Rights Committee, which supervises the implementation of the (UN) International Covenant on Civil and Political Rights, the present reporter will critically examine the Court's approach. He concludes that particular historical experience of a certain society may provide valid bases for restricting expression of anti-Convention nature.