Convergence & Conflict: Reflections on Global and Regional Human Rights Standards on Hate Speech

Aswad, Evelyn,Kaye, David | July 7, 2022

What is hate speech under international human rights law? And how do key international adjudicators interpret the law governing it? This Article seeks to illuminate two countervailing and under-reported trends: on the one hand, a growing consensus among U.N. experts and treaty bodies concerning interpretations of “hate speech” prohibitions in international law; and on the other, a failure of several regional human rights bodies to develop approaches to hate speech that are consistent with the U.N.’s universal standards. The Article begins by analyzing the U.N.’s approach to freedom of expression and hate speech and examining how, in the last decade, various U.N. expert bodies have converged on an agreed approach to the subject. The Article next compares this global standard with key developments in the Inter-American, European, and African human rights systems and the emerging frameworks in Arab, Islamic, and Southeast Asian contexts. This comparative analysis reveals that, while certain systems converge with the U.N.’s approach, others diverge, sometimes marginally, sometimes significantly. For example, the European Court of Human Rights frequently lessens or removes the burden on governments to show hate speech restrictions are properly imposed, allows for the imposition of hate speech restrictions for reasons not accepted at the global level, and does not assess whether restrictions on speech are the least intrusive means to achieving legitimate public interest objectives. After analyzing this landscape of regional norms in convergence and conflict with U.N. standards, the Article provides several observations. The Article concludes by urging human rights defenders throughout the world to be cognizant of the areas in which regional human rights bodies provide fewer protections than U.N. standards require, and to tackle this trend through proposed strategies to protect universal minimum standards for freedom of expression.