From ‘Margin of Discretion’ to the Principles of Universality and Non-Discrimination: A Critical Assessment of the ‘Public Morals’ Jurisprudence of the Human Rights Committee

Abstract

This article is intended to critically analyse the ‘public morals’ jurisprudence of the Human Rights Committee (HRC). Under the International Covenant on Civil and Political Rights, ‘protection of public morals’ can be invoked as a legitimate aim to limit various rights, such as the right to freedom of religion and freedom of expression. In this regard, the HRC has held that ‘public morals’ must be derived from many different traditions, and that limitation of rights based on public morals must be understood in light of the principles of universality of human rights and non-discrimination. However, this research has found that the HRC’s jurisprudence on public morals contains two main problems. First, it remains unclear when a moral standard can be considered as deriving from ‘many different traditions’. Second, the HRC’s interpretation is also not supported by the application of the general rule of interpretation.