In this exclusive edited extract from his new book, Chris Berg uncovers the little-known origins of laws that restrict free speech.
Should Nazis have the right to free speech? Adolf Hitlers Germany, obviously, had no liberty of expression. Must freedom of speech allow for the toleration of an intolerant minority? The question has been answered in different ways in various countries. Germany places significant limits on neo-Nazi speech and assembly. The United States permits such speech.
But this was no more pressing a question than when international human rights treaties were being drafted at the end of the Second World War.
The geopolitical and ideological circumstances of half a century stamped themselves on those treaties - circumstances which are rarely understood when academics, lawyers or commentators try to impose the precepts of the treaties onto domestic politics. This is no more so than with freedom of speech. Concepts like hate speech, racial vilification, and group defamation were conceived in significandy different political environments to our own.
Yet rarely is the actual content or justification for the rights enumerated in those treaties challenged. In contemporary debate over human rights, it is remarkable how unexamined and unquestioned the treaties actually are.
The unquestioned dominance of human rights treaties on our understanding of individual rights has had a number of problematic effects. It has changed how we think about rights. The natural rights tradition explored in this volume has, at its heart, a central concept of moral autonomy by the individual. Natural rights can be secured through the state, but they exist prior to the state: states are only formed in order to maintain those rights. Natural rights are general. Rather than specifying what specific protections an individual is entided to, natural rights suggest that anything that encroaches on their moral autonomy should be frowned upon.
International human rights law however is specific, enumerated, and comprehensive. These declarations, covenants, and treaties cover everything from the right to marry, to the right for individuals with a disability to access vocational rehabilitation. Rather than positing general moral principles, international human rights laws simply list all the things that the drafters believe are worthy. There is no distinction between negative rights and positive rights - thus, human rights law confuses protection against state action with demands that states act. Allowing an individual to marry the person of their choice unmolested by the government is very different to the requirement that individuals with disability receive support for vocational rehabilitation, which, however worthy, requires governments to tax other citizens to provide.
This confusion is particularly apparent when human rights law tackles freedom of speech and expression.
Article 19 of the United Nations' 1948 Universal Declaration of Human Rights states unequivocally that 'Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.' Yet the Universal Declaration of Human Rights does not impose any obligations on states. It was not a treaty- simply a 'declaration'.
Dissatisfaction with the Universal Declaration's purpose led to the International Covenant on Civil and Political Rights. Adopted in 1966 by the United Nations, it, too, made a bold statement on behalf of freedom of speech in Article 19: 'Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.' The power of that statement was drained by the following: speech should be subject to restrictions to 'respect of the rights or reputations of others', or 'the protection of national security or of public order . …