The prohibition of advocacy of religious hatred that constitutes incitement to discrimination, hostility or violence

Article 20(2) of the UN International Covenant on Civil and Political Rights (ICCPR) is a weird species. ¹ It provides that ‘[a]ny advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.’ ² Accordingly, this provision does not appear to codify a fundamental right but rather a sui generis state obligation. Moreover, this norm may very well be construed as a special limit on other fundamental rights, notably on the right to freedom of expression, but also for instance on the right to freedom of association. This quality can be considered, in the words of Manfred Nowak, an ‘alien element in the system of the Covenant’. ³