Reflections on “The Limits of Moral Limitations: Reconceptualizing “Morals” in Human Rights Law” by Ryan Thoreson in Harvard International Law Journal – Volume 59, Number 1, Winter 2018

Reflections on “The Limits of Moral Limitations: Reconceptualizing “Morals” in Human Rights Law” by Ryan Thoreson in Harvard International Law Journal – Volume 59, Number 1, Winter 2018.

The goal of Activists and advocates to internationalize and enforce a Human Rights regime that is universal is an unrealistic one. Ardent believers of Nation State and state sovereignty have thwarted such efforts on grounds like National Security, public order and/or Public Safety and Morality. The central theme of this paper is about presence of morals in international instruments and how states use morals in such instruments to justify some of their acts that limit sexual rights including others and how certain international adjudicatory bodies have interpreted the morality exception in such instruments, and how effectively the courts in the global south have actively assisted the evolution of jurisprudence in this area that has global implications. Most importantly the author explains the examples of cases in India and South Africa.

The tension between universal principles and state sovereignty is real. No matter what efforts one might want to put, there will never be a day where the rights that are articulated in International Instruments like Universal Declaration of Human Rights will be implemented in spirit by all Nation States especially if they realize that such efforts by the external agencies or institutions are only eroding the hard-earned state sovereignty. It is precisely in this context the father of Realist School in International Relations Kenneth Waltz said that beyond Nation State there is only anarchy, simply because there is no global sovereign. So, the supranational oversight of the instrumentalities of the state will always be resisted by the individual countries.

Being an internationalist, the author complains that foundational international and regional human rights instruments like International Covenant on Civil and Political Rights (ICCPR), American Convention on Human Rights (ACHR), European Convention on Human Rights (ECHR), and African Charter on Human and Peoples Rights (ACHPR) strike a cautious balance between universal guarantees and deference to state sovereignty.

It is surprising to see why the author does not appreciate the limitations of International Law. The development of International Law cannot happen at the cost of State Sovereignty. If all such instruments were worded in absolute terms, then hardly anybody would have signed such instruments. So, the only way to achieve a global acceptance of these instruments is to reconcile universal rights with state sovereignty, hence the inclusion of limitation clauses like National Security, Public Health, Public Order, Morals and freedom of others etc.,

In this current discussion we are only looking at Morals. The moot point of the author is that these limitations are limiting the global application of Human Rights Regime. He claims that when the supranational adjudicatory bodies finding it difficult to curtail actions committed by state actors in the morals, the constitutional courts of democratic countries like India and South Africa in Global South are doing a great service by liberally interpreting their national constitutions in line with universal principles than the international adjudicatory authorities like European Court of Human Rights (ECtHR), African Commission etc., Majorly the discussion of Morals in his case centers around rights of Lesbian, Gay, Bisexual and Transgenders (LGBT).

Two Questions that the author attempts to answer in this article are:

  1. With the rise of Sexual rights, are moral provisions still a defensible feature in Human Rights Law?
  2. If these provisions (Moral) retain some utility, how might adjudicatory bodies apply them in a more coherent and doctrinally rigorous way that balances state sovereignty with individual rights to sexual privacy, association and expression?

Ryan at first explores the rationales that justify some form of provisions as a feature of regional and international law to assert that the balance between absolute rights and deference to national sovereignty is plausible, secondly he focuses on judicial doctrines that might be used to reconcile moral provisions with sexual rights by focusing on the doctrine of constitutional morality as elaborated by the courts in global south especially in India and South Africa and how it can be used by supra national bodies to clarify what morals do and do not mean.

The idea to include morals and public order in UDHR came from France because the original draft did not have it, but Uruguay, New Zealand and Australia objected to it. The populations of these three countries are only tiny number compared to other major countries not to mention diversities in society in these countries. It is only natural for a country like France to seek the inclusion of moral limitations as a safety valve in the UDHR.

Ryan parades cases decided in European Court of Human Rights and Human Rights Commission that have justified the constraints imposed by states on expressions and acts of homosexuality. Handyside vs United Kingdom, Norris V Ireland and Modinos V Cyprus, Dudgeon V United Kingdom, Kaos GL V Turkey in ECtHR, Hertzberg V Finland in HRC are cases where courts accepted the constraints imposed by the state in the name of Morals.

The author proposes harm principle as a response to Moral Provisions. For eg: – In cases like Dudgeon and Norris it was looked in to whether the alleged private sexual activity does any harm to the individual and to the society, normally this is the ground states take to limit activities like unnatural sex. There are cases where the ECtHR upheld a criminal conviction for a sado-masochistic sex like Laskey, Jagger and Brown on public health grounds.

According to me, the rage of self-appointed Human Rights advocates in advertising the unnatural sex is an irrational act. I can understand if someone is genetically constrained to go for a homosexuality because he has no choice, but deliberate propagandizing and advertising of acts like BDSM and Sado-Masochism in the name of Sexual Rights is not good for any society. This definitely has a detrimental effect on the mental health of children. As in criminal cases the harm principle shall look for harm that these activities of unnatural sex have on society and individual. If there is none then such acts shall get a legal sanctity. But the problem with harm principle is that the interpretation has to be necessarily tailored to different cultures and societies. For example, can you talk about BDSM and homosexuality in Saudi Arabia? For that matter can you do it in any middle eastern countries?

Seeking the assistance of Constitutional Morality to adjudicate matters on Sexual Rights.

In NCGLE V. Minister of Justice sodomy law was questioned in South Africa’s Constitutional Court. Where the court concluded that private moral views of a section of the community, which are based to a large extent on nothing more than a prejudice, cannot qualify as such a legitimate purpose for the state to penalize such acts.

In my opinion, it has become fashionable for the judges who are accustomed to a particular ideological lineage to deride the sensitivities of a section of the population as prejudicial and unscientific. After all, even to this day public notion of morality has a strong bearing on the legislative behavior of law makers. Law is nothing but the result of political processes. Law cannot exist without a political consensus. Famous example is the abolition of Triple Talaq, where the Muslim Community is still not ready for it and thinks that denying women’s rights in the name of religion is a moral, hence the opposition for passing the bill to abolish the triple Talaq.

The author refers to Naz Foundation V. Government of NCT of Delhi on the question of Section 377 of IPC that penalizes unnatural sex. Where the Delhi high court has taken a reasoning that parallels Norris judgement of ECtHR and used reasonability test. Whether the state can reasonably enforce the provision section 377.

Once more in this judgement Justice AP Shah says that “If there is any type of morality that can pass the test of compelling state interest it must be Constitutional Morality and not Public Morality”

Judiciary should give due regard to public morality because it is fundamental, because it guides and influences the law makers to make or break a law. Public morality is not inferior to constitutional morality. Constitutional Morality cannot thrive in isolation. It is in this context we shall refer to Mohd. Ahmed Khan v. Shah Bano Begum, where the supreme court directed husband of the petitioner Shah bano to pay her alimony. But government in power then had to succumb to public morality and was forced to bring in a new law that nullified supreme court’s judgement in Shah Bano case. Though the Supreme Court based on constitution (constitutional morality) passed a judgement, the Government had to go by the public morality and ultimately nullified the judgement.Hence, the courts cannot employ a confrontational approach.

The extreme differences of Constitutional morality and Public Morality has to be reconciled. In this case neither the author has made any such direct proposal nor has he suggested any alternate methods.

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