The Public Morals Exception: A Failing by the Human Rights Committee and a Threat to International Human Rights Law

Abstract

By way of its construction, the public morals exception located in the International Covenant on Civil and Political Rights is a function of international law which allows for restrictions on the most fundamental of our human rights. However, despite these implications, this justifying ground remains severely understudied and unexplained. This paper seeks to discuss the jurisprudence which surrounds the public morals exception from two angles: first, the requirements for ‘legitimacy’ of such exceptions and second, the broader interpretation of what is meant by the term ‘public morals’ in international human rights law. After analysing the work of the Human Rights Committee on these two concepts, the paper asserts that the level of clarity which has been provided by the body in terms of its discussions on the requirements of human rights exceptions has not been reflected in the Committee’s limited guidance concerning the larger concept of public morality — a complex yet vital part of the discussion surrounding the public morals exception. Due to this lack of clarity by the Human Rights Committee, the paper finds that the international recognition of human rights faces two major issues — a vacuous idea of ‘morality’ which often allows for excessive State discretion, and an overwhelming number of claims under the public morals exception which are clearly unlawful.