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Legal instruments to combat racism on the internet

IV. THE POSITION UNDER PUBLIC INTERNATIONAL LAW

4.1. Texts which enunciate legal duties
4.2. Practice of States in respect of Article 4 of ICERD
4.3. Opinions of specialised organs and jurists
4.4. Conclusion

The duties of States under public international law in respect of the dissemination of racial hatred through the Internet are not yet clearly established. Only one binding multilateral treaty deals expressly with the dissemination of racist doctrines and incitement to racist violence and none deal expressly with revisionism or racism on the Internet. The practice of States in this respect is not uniform and there is considerable dissension among the representatives of States and other expert jurists as to the measures which States are obliged to adopt in order to combat such expressions of racism.

4.1. Texts which enunciate legal duties 

The obligation incumbent upon all States to prevent and prohibit discrimination on the basis of race is enshrined in Arts. 55(c) and 56 of the Charter of the United Nations and has been subsequently reiterated in numerous multilateral conventions1. A duty of States in respect of racist propaganda is implied by the Universal Declaration of Human Rights, which declares in its Art. 7 that all human beings are entitled to the equal protection of the law against any incitement to discrimination. The concrete obligations of States in this respect are set out in Art. 4 of the International Convention on the Elimination of all Forms of Racial Discrimination (ICERD). As this is the only binding norm which potentially obliges all States to introduce legal norms prohibiting and punishing the dissemination of racist material, it is worth quoting in relevant part:

 

"States Parties ... undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, [racial] discrimination and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in article 5 of this Convention, inter alia:

   

(a) Shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof;

   

(b) Shall declare illegal and prohibit organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination, and shall recognize participation in such organizations or activities as an offence punishable by law ..."

That States have a duty to enact legislation punishing the dissemination of racist propaganda and incitements to racial hatred has subsequently been reiterated in a number of declarations of international organisations and resolutions of international conferences, which may be considered as "international soft law". Art. 6 of UNESCO's 1978 Declaration on Race and Racial Prejudice2 holds that "the State should take all appropriate steps, inter alia by legislation ... to prevent, prohibit and eradicate ... racist propaganda ..." Art. 7 of the same Declaration urges States to "adopt such legislation as is appropriate" to restrict "any propaganda, any form of organisation or any practice ... which seeks to justify or encourage racial hatred and discrimination in any form". The OSCE, at several of its intergovernmental meetings, declared the intention of the Member States to adopt such legislation as is necessary to provide protection against manifestations of racism and incitement to violence based on racial hatred3. Art. 1 of UNESCO's 1995 Declaration of Principles on Tolerance4 states that tolerance, which necessarily involves respect for the social and cultural characteristics of other human beings regardless of their racial origins, is a "legal requirement" incumbent upon "individuals, groups and States". Finally, the General Assembly of the United Nations resolved in 1997 to express its deep concern at the misuse of the Internet by those who advocate racism, to "categorically deplore" the misuse of the Internet as a means of inciting others to violence motivated by racial hatred and to "[recognise] that Governments should implement and enforce appropriate and effective legislation to prevent acts of racism, racial discrimination, xenophobia and related intolerance"5. It is worth noting that none of these instruments expressly refer to revisionism.

4.2. Practice of States in respect of Article 4 of ICERD 

At 1 January 2000, a total of 155 States were party to the ICERD. All Member States of the Council of Europe, except for Andorra, Liechtenstein, Moldova and San Marino, have either ratified, or acceded or succeeded to the ICERD. However, a total of 20 States Parties to ICERD have entered reservations and/or interpretative declarations in respect of Art. 4, which have not been subsequently withdrawn6.

Of the nine States which have subjected their acceptance of Art. 4 to reservations in the strict sense, only Switzerland is a Member of the Council of Europe. Three States (Japan, Nepal and Papua New Guinea) have subordinated their obligations under Art. 4 to the limitations of their own constitutions, while three other States (the Bahamas, Barbados and Jamaica) went so far as to rank their constitutions as superior to all of their obligations under the ICERD. The United States of America indicated its refusal to accept any obligation under Art. 4 which would require restriction of the protection afforded by its constitution and laws to the freedoms of speech, expression and association. Australia stated that it was not in a position to legislate for the introduction of the additional, specific criminal offences required by Art. 4, while Switzerland made an apparently inverse reservation of its "right to take the legislative measures necessary for the implementation of article 4, taking due account of freedom of opinion and freedom of association..."

Of the 15 States which lodged interpretative declarations in respect of Art. 4, six are Members of the Council of Europe (Austria, Belgium, France, Italy, Malta and the United Kingdom). Eight of the remainder are members of the Commonwealth and some of these States essentially adopted declarations which the United Kingdom had made on their behalf before they attained full independence. This substantial degree of homogeneity in the sources of declarations concerning Art. 4 is reflected to a large degree in their contents. Nine States (Austria, the Bahamas, Belgium, Fiji, France, Italy, Monaco, Tonga and the United Kingdom) indicated that they interpret the caveat that appears in the opening sentence of Art. 4, namely that measures should be taken "with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in article 5 of this Convention", as meaning that States Parties retain the discretionary power to strike a proper balance between the freedoms of opinion, expression and peaceful association on the one hand, and the obligation to refrain from disseminating racist propaganda and inciting to racial hatred on the other hand. The Swiss communication quoted above, although it carries the title of a reservation, should be more correctly categorised as a declaration to the same effect. The eight Commonwealth States (Antigua & Barbuda, the Bahamas, Barbados, Fiji, Malta, Nepal, Papua New Guinea, Tonga and the United Kingdom) further indicated that they interpret paragraphs a) and b) of Art. 4 as requiring States Parties to enact additional or modified legislation only in cases where those States feel that such a step is necessary in order to achieve the objectives set out in the opening sentence of Art. 4.

No States Parties have lodged objections to any of these reservations or declarations concerning Art. 4. This is rather surprising, given that nine States lodged objections to the Saudi Arabian and/or Yemenite reservations of the right to apply the prescriptions of the Shari'ah, including a number of States (Denmark, Finland, Germany, Mexico, the Netherlands, Spain and Sweden) which had not entered reservations or declarations in respect of Art. 4 and most of which are incidentally Members of the Council of Europe. Given that Art. 20(2) of the ICERD invites States Parties to object to reservations which are incompatible with the objects and purposes of the Convention, but that this has not occurred in the 25 years since the Australian reservation and the six years since the United States' reservation was entered, it must be concluded that other States Parties consider these reservations to be permissible in the framework of ICERD. Similarly, the interpretations of Art. 4 suggested by the 15 States which lodged relevant declarations have been tacitly designated as acceptable by the remaining States Parties.

4.3. Opinions of specialised organs and jurists 

The Committee on the Elimination of Racial Discrimination (CERD) created by the ICERD, in its General Recommendation XV (42) of 17 March 1993, stated its opinion that Art. 4 of ICERD is of a mandatory nature, obliging all States Parties to enact legislation which prohibits and punishes each of the acts mentioned in paragraphs a) and b) and to ensure that such laws are enforced by national courts and other organs of the State. Furthermore, it found that legislation prohibiting the dissemination of ideas based upon racial superiority or racial hatred is compatible with the human rights to freedom of opinion and expression and of peaceful assembly and association. This conclusion is justified by the principle that rights and freedoms may not be exercised in a manner which deprives others of the enjoyment of their rights and freedoms7. Legal restrictions which are necessary to ensure respect for the rights and reputations of other persons8, to protect other persons from racial discrimination and racially motivated violence9 and to advance public order and welfare in a democratic society are therefore permissible under international law10. Indeed, human rights generally may not be exercised in any manner contradicting the purposes and principles of the United Nations11, which include the encouragement of "respect for human rights and for fundamental freedoms for all without distinction as to race ...12". In its above mentioned Resolution13, the United Nations General Assembly formally took note of this Recommendation and affirmed "that acts of racist violence against others stemming from racism do not comprise expressions of opinion but rather offences". Similarly, the Human Rights Committee created under the International Covenant on Civil and Political Rights has held the legislative prohibition of racist speech to be a legitimate and proportionate restriction upon the right to freedom of speech14.

The United Nations High Commissioner on Human Rights has convened a number of expert seminars15 to consider the role of the Internet in the context of the fight against racism and racial discrimination. In discussions on point IV of the programme of the 1996 Seminar to Assess the Implementation of the ICERD with Particular Reference to Articles 4 and 6, participants generally agreed that paragraphs a) and b) of Art. 4 provide a sufficient legal basis for States Parties to legislate to prohibit organisations which disseminate racism over the Internet16. The recommendations of the seminar were however, limited to a general appeal to States Parties to adopt legislation in pursuance of their obligations under Art. 4 a) and b), with the representatives of Japan and the United Kingdom stating that their governments did not necessarily agree to or support these recommendations17. In discussions on point II.B. of the programme of the 1997 Seminar on the Role of the Internet in the Light of the Provisions of the ICERD, participants suggested that further study of the permissible restrictions on the right to freedom of expression would be necessary before any attempt is undertaken to prohibit racist propaganda on the Internet18. The seminar finally recommended that national criminal laws should be amended so as to punish racism on Internet and permit the prosecution of Internet service providers, but this recommendation was restricted in scope to those States which have already enacted laws criminalizing racial discrimination and the dissemination of racism19.

Members of the CERD have repeatedly emphasised their opinion that States Parties are obliged by Art. 4 of ICERD to enact legislation which punishes the dissemination of ideas of racial superiority and hatred over the Internet, to the same degree as incitement to racial hatred and discrimination by means of printed documents, films or any other media20. They argue that Art. 4's reference to the duty of States Parties to have due regard to the rights and freedoms set out in Art. 5 and in the Universal Declaration, cannot be interpreted as absolving States Parties from the duty to enact legislation prohibiting and punishing the acts described in paragraphs a) and b) of Art. 4, because such an interpretation would deprive Art. 4 of mandatory force and incorrectly treat it as a text without legal effect21. The independent discretion left to States Parties by Art. 4 is limited, in the opinion of CERD, to deciding whether the prohibited acts should be punished by courts as criminal offences, or by administrative or regulatory bodies as less serious infringements of the law22. On the other hand, in his 1998 report to the Commission on Human Rights23, the United Nations Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression noted24 with some degree of implied satisfaction, that the 1997 expert seminar discussed above was unable to obtain a consensus even on the formulation of a voluntary international code of conduct for Internet users and service providers, because of concerns that such a document could be used to justify improper infringements of the right to freedom of expression. The Special Rapporteur characterised25 the reservations and interpretative declarations entered by States Parties in respect of Art. 4 of ICERD as evidence that the necessary delicate balance between the right to be free from expressions of racial hatred and to be protected from incitement to racial discrimination and violence on the one hand, and the rights of freedom of opinion and freedom of expression on the other hand, has not yet been found at the level of public international law.

4.4. Conclusion 

Public international law currently offers a framework, in the form of an international convention of potentially universal application, which could be used to effectively combat the dissemination of racism on Internet across the globe. While the great majority of States have already adhered to this framework, a not insubstantial number unfortunately take the view that the convention does not require them to enact enforceable national laws punishing the dissemination of racism or incitement to racial hatred. Amongst the States Parties which have expressly taken this stance are several countries of major practical importance for the Internet at the present time (Australia, Japan, the United Kingdom and the United States of America) and it appears that their reluctance to impose legislative constraints on racist speech extends to the Internet. Current prospects of attaining agreement on concrete measures to combat racism on Internet at the global level are therefore not good.







_______________

1. Some prohibit racial discrimination either generally, or in respect of all of the exercise and enjoyment of all of the rights enunciated in those conventions: International Covenant on Civil and Political Rights, 1966, Art 2(1); International Covenant on Economic, Social and Cultural Rights, 1966, Art. 2(2); International Convention on the Suppression and Punishment of the Crime of Apartheid, 1973; International Convention against Apartheid in Sports, 1985. Refer in this context also to Arts. 2 and 7 of the Universal Declaration of Human Rights, 1948, which, although it is not a legally binding treaty, is generally considered to be declaratory of binding customary international law. The following treaties prohibit racial discrimination in the specific fields with which they deal: Convention relating to the Status of Refugees, 1951, Art. 3; Convention relating to the Status of Stateless Persons, 1954, Art. 3; ILO Convention No. 111 concerning Discrimination in respect of Employment and Occupation, 1960, Art. 3(b); UNESCO Convention Against Discrimination in Education, 1962, Art. 3; Additional Protocol I to the Geneva Conventions on the Protection of Victims of International Armed Conflicts, 1977, Art. 85(4); Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 1984, Art. 1; Convention on the Rights of the Child, 1989, Art. 2.
2. Adopted and proclaimed by the General Conference of the United Nations Educational, Scientific and Cultural Organisation at its 20th session, 27 November 1978. U.N. Doc. E/CN.4/Sub.2/1982/2/Add.1, annex V.
3. Refer to the: Document of the Copenhagen Meeting of the Conference on the Human Dimension, 29 June 1990, paras. 40 and 40.1; Document of the Moscow Meeting of the Conference on the Human Dimension, 3 October 1991, para. 38.1; CSCE Budapest Document – Toward a Genuine Partnership in a New Era, 6 December 1994, para. 25. A compilation of extracts from these documents is available at: http://www.osce.org/odihr/them/discrim.htm.
4. Proclaimed and signed by the Member States in the General Conference of the United Nations Educational, Scientific and Cultural Organisation at its 28th session, 16 November 1995. This document is available at http://www.unesco.org/tolerance/declaeng.htm .
5. Points 11 and 12 of General Assembly Resolution No. 52/109, entitled "Measures to combat contemporary forms of racism, racial discrimination, xenophobia and related intolerance", U.N. Doc. No. A/52/642, adopted without a vote on 12 December 1997. It is worthwhile to note that this resolution was prepared by the Third Committee, with responsibility for social, humanitarian and cultural matters, rather than the Sixth Committee, which has responsibility for legal matters.
6. A list of ratifications and the texts of all reservations, declarations and objections lodged by States Parties to ICERD, maintained and regularly updated by the Treaty Section of the United Nations Bureau of Legal Affairs, may be found at: http://untreaty.un.org/ENGLISH/bible/en...ternetbible/partI/chapterIV/treaty2.asp
7. Universal Declaration of Human Rights, Art. 29(2).
8. International Covenant on Civil and Political Rights, Art. 19(3)(a).
9. International Covenant on Civil and Political Rights, Art. 20(2).
10. Universal Declaration of Human Rights, Art. 29(2).
11. Universal Declaration of Human Rights, Art. 29(3).
12. Charter of the United Nations, Art. 1(3).
13. General Assembly Resolution No. 52/109 (supra, n. 5), at point 4.
14. In the case of JRT and the WG Party v. Canada, Communication No. 104/1981, U.N. Doc. Supp. No. 40 (A/38/40), at p. 231 (1983).
15. The most recent was the Expert Seminar on Remedies Available to the Victims of Acts of Racism, Racial Discrimination, Xenophobia and Related Intolerance and on Good National Practices in this Field, held at Geneva on 16-18 February 2000. Point 3 of the programme was dedicated to legal and technical questions about racism on Internet. We have not yet been able to obtain the documentation or conclusions of that seminar.
16. The official report of the seminar has been published as U.N. Doc. No. E/CN.4/1997/68/Add.1.
17. Refer ibid, para. 123.
18. Refer to para. 66 of the official report of the seminar, which has been published as U.N. Doc. No. E/CN.4/1998/77/Add.2.
19. Refer ibid, para. 158, headed "The role of existing national criminal law".
20. Report of the Seminar to Assess the Implementation of the ICERD with Particular Reference to Articles 4 and 6 (supra, n. 16), paras. 37 and 40; Report of the Seminar on the Role of the Internet in the Light of the Provisions of the ICERD (supra, n. 18), paras. 44 and 46.
21. Report of the Seminar to Assess the Implementation of the ICERD ... (supra, n. 16), para. 38; Report of the Seminar on the Role of the Internet ... (supra, n. 18), para. 43.
22. Report of the Seminar on the Role of the Internet ... (supra, n. 18), para. 43.
23. Presented to the 54th session of the Commission and published as U.N. Doc. No. E/CN.4/ 1998/40.
24. In para. 8 of point III.C. of his report.
25. Ibid, para. 7.