Permitted restrictions on expression in International Human Rights Law Freedom of expression does not only protect popular or uncontested sentiments. It also protects views that are unpopular, or may shock, offend, or disturb. This is the nature of freedom of expression: someone may express an opinion others disagree with, but they nonetheless have a right to say it, except in certain narrowly defined circumstances. When it comes to determining what speech should be restricted in order to protect the rights of others, international human rights law provides a very high threshold that must be met before the expression can be legitimately restricted 295 or even prohibited in order to protect a wide space for all kinds of expression. The former UN Special Rapporteur on the Promotion and Protection of Freedom of Opinion and Expression, Frank La Rue, summarises this in a 2012 report: “The right to freedom of expression implies that it should be possible to scrutinise, openly debate and criticise, even harshly and unreasonably, ideas, opinions, belief systems and institutions, including religious ones, as long as this does not advocate hatred that incites hostility, discrimination or violence against an individual or a group of individuals.” 296 As such, expression that is “any propaganda for war” or “advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence…” 297 should proactively be prohibited by law according to Article 20 of the ICCPR. Incitement is also recognised as a crime in other international human rights treaties. The UN Convention on the Prevention and Punishment of the Crime of Genocide (1948) criminalises a “direct and public incitement to commit genocide.” 298 The International Convention on Elimination of All Forms of Racial Discrimination (1966) requires states to criminalise the dissemination of ideas based on racial superiority and assisting or financing racist activities. 299 One unfortunate omission, however, concerns gender which is not specifically considered in these instruments. Nor is advocacy of hatred that incites violence towards women provided for in the International Convention on the Elimination of all Forms of Discrimination against Women (1976). National Legal Framework The 2008 Myanmar Constitution does not prohibit incitement to hatred, as is the case in many domestic legal frameworks around the world. It does have constitutional protections against discrimination: Article 348 of the 2008 Constitution guarantees that discrimination by the Union against any citizen is prohibited on the grounds of race, birth, religion, official position, status, culture, sex and wealth. However, the internationally recognised grounds 295 Harmful speech can also be restricted under articles 18 and 19 of the ICCPR on the grounds respect for the rights of others, public order, or even sometimes national security if the restrictions meet the tests set out under Article 19 (see Chapter 4.1 on Freedom of Expression for an explanation of the tests). 296 UN General Assembly, “Promotion and Protection of the Right to Freedom of Opinion and Expression. Note by the Secretary General”. (10th August 2011), A/66/90, Para 30. 297 ICCPR, Article 20. Hatred, by itself, would not be subject to restriction. It is only when advocacy of national, racial or religious hatred constitutes incitement to discrimination, hostility or violence that it must be restricted under international law. 298 UN Convention on the Prevention and Punishment of the Crime of Genocide (1948) Article III(c). 299 Article 4(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.” CHAPTER 4.2: HATE SPEECH 143 4 4.2