Punish intolerance 'male salt' Criticism of the Inter-American Convention against all forms of discrimination and intolerance.
At the end of last year, the Chamber of Deputies approved the draft ratification of the Inter-American Convention against all forms of Discrimination and Intolerance. Although it is a highly relevant legal instrument, it did not receive much attention in the public debate or among specialists. Even the deputies themselves seem to have overlooked the issue. The approval of the ratification project took place in a context of many absences and there were almost no speeches in defense or rejection of the Convention.
At CELE we decided to take a closer look at the Convention and what we found concerned us. Although the goals pursued by the Convention are unquestionably laudable, the terms in which the scope of the obligations imposed on the state are defined are worrying from the point of view of freedom of expression. That is why we decided to write a Article * which was published in the last volume of the Argentine Journal of Legal Theory. In what follows we would like to briefly explain the argument of our article.
The Convention seeks to fight against hatred and intolerance and it does so by imposing on the states that ratify it the obligation to prevent, eliminate, prohibit and punish all forms of discrimination and intolerance. Now, discrimination and intolerance are vague terms, so we need some clarification on what is discrimination and what is intolerance if we want to impose duties on the state, once it has ratified it. Our objections focus mainly on the fact that the definitions given by the Convention are problematic for freedom of expression. And it is precisely there where the problems begin.
The definition of intolerance found in the Convention ranges from acts that express contempt for other people because of their physical characteristics to manifestations of rejection of the opinions of other people. It is definitely a definition. expands. When analyzing this expression from the standards of freedom of expression, some absences stand out: no distinction is foreseen between speeches of public interest and those that are not, for example. Nor does it distinguish between the different contexts in which intolerant speech can appear. Thus, there is no difference between the expressions that are said at a family lunch and those that take place in political acts, which makes the Convention blind to the context in which they were expressed.
This blindness to different contexts brings with it another problem. It seems quite obvious that not all speech said in private affects others. If we, for example, expressed our rejection of someone's convictions in a chat, this would not cause any harm and would nevertheless be intolerant under the terms of the Convention.
This leads us to ask what are the reasons that justify punishments on speech that the convention considers intolerant. If there are countless situations in which no one is affected and in which, however, the state has an obligation to intervene, then the reason for intervention cannot be harm to third parties. Now, if the reason that justifies the intervention is not harm to third parties, this means that the Convention obliges to punish certain speeches not because of their effects but because they are reprehensible from the point of view of individual moral. In doing so, the convention prioritizes certain ideals of personal excellence over others.
Finally, the article briefly describes the regulation on hate speech. The specialized literature discusses the possibility of punishing a series of speeches that it calls hate speech. However, even among those who believe that this is not a violation of the right to freedom of expression, there is no agreement on what these speeches are and what reasons justify the possibility of sanctioning them. Now, the existence of these disagreements does not mean that those who believe that hate speech should be punished do not have any agreement. In fact, if we look at their arguments carefully, we will find that all of them seek to punish them because they consider that it violates some right and that therefore this enables them to restrict the scope of freedom of expression. But the Convention does not seem to follow this criterion. It goes beyond what is traditionally defended by those who believe that hate speech should be punished, also reaching those speeches that, it could be argued, do not affect anyone's rights.
From these arguments (developed in depth in the article) we can conclude that the text of the Convention is worrying from the perspective of freedom of expression. While speech is undoubtedly an issue to be concerned with, not all responses are appropriate. In particular, we believe that the punitive response is not obvious and that, if it were adopted, it should be carefully limited to the speeches that are to be discouraged. Unfortunately, the Convention goes in the opposite direction and by trying to discourage this type of expression, it ends up covering practically any political disagreement.
*This publication was made in the Argentine Journal of Legal Theory (RATJ) of the Torcuato Di Tella University Vol. 22 Number 2 (2021)
