Volume 6 Issue 1 October 2018
Anti-totalitarian Memory:
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Rights abuse clauses are provisions in the European Convention on Human Rights and the International Covenant on Civil and Political Rights which prevent individuals using rights to undermine the rights of others in society. They are most commonly used to restrict the free speech of extremist political groups. This paper argues that they are a reflection of an anti-totalitarian consensus behind both instruments. A critical examination of their history shows that these clauses are the products of a form of collective European memory which seeks to safeguard against a collective heritage of totalitarianism. Their substance seemingly privileges a complex historically contingent form of anti-racism and they can be used to justify seemingly far-reaching restrictions on free speech and freedom of association in order to prevent against totalitarianism. Rights abuse clauses, this paper concludes, are a form of collective juridical memory which has overshadowed the development of human rights law in certain areas.
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