New Zealand Human Rights Commission: Te Kähui Tika Tangata Part II: International law Under international law, speech is generally regulated by three treaties: the ICCPR, the International Convention on the Elimination of All Forms of Racial Discrimination 1965 (ICERD), and the Convention on the Prevention and Punishment of the Crime of Genocide 1948 (Genocide Convention). Each of which sets out the type of restrictions that States are either required or recommended to place on speech. These can be separated into hate speech that States must prohibit and hate speech that States may prohibit.54 New Zealand has ratified all three of these conventions.55 International human rights treaties Convention on the Prevention and Punishment of the Crime of Genocide Direct and public incitement to genocide is prohibited in the Genocide Convention56 and the Rome Statute of the International Criminal Court.57 The Genocide Convention requires that States prohibit and punish as a criminal offence any “direct and public incitement to genocide,” in addition to acts of genocide themselves.58 International Covenant on Civil and Political Rights Article 19 Article 19(1) and (2) of the ICCPR sets out the right to freedom of expression: 1. Everyone shall have the right to hold opinions without interference. 2. 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. 54 55 56 57 58 59 However, this is not an absolute right. Article 19(3) sets out the permissible restrictions on speech in the following terms: 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals. The High Court of New Zealand in Wall v Fairfax has interpreted article 19 as follows:59 While the right can be restricted, the circumstances in which this is permissible are strictly limited by Article 19(3) and the restrictions must conform to the strict tests of necessity and proportionality. Specifically the restrictive measures must be appropriate to advance their protective function, they must be the least intrusive of the available measures and must be proportionate to the interest protected. Article 20 Article 20 of the ICCPR further limits the right to freedom of expression: 1. Any propaganda for war shall be prohibited by law. 2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law. United Nations General Assembly, Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, UN Doc A/66/290 (10 August 2011) at [18]. The Special Rapporteur has suggested three categories of hate speech to help identify appropriate and effective responses: (1) Hate speech that must be prohibited; (2) Hate speech that may be prohibited; (3) Lawful hate speech. By ratifying these treaties, New Zealand has signified an intent to be legally bound by their terms. . Article 3(c). Article 25(3)(e). Article 3(c). Wall v Fairfax [2018] NZHC 104 at [166.2]. This interpretation echoes the interpretation in United Nations General Assembly Report of the Special Rapporteur on the promotion and protection of the freedom of opinion and expression UN Doc A/74/486 (9 October 2019). 12