Use this URL to cite or link to this record in EThOS: https://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.816592
Title: Justifying limitations on the freedom to manifest religion or belief and the freedom of expression under the ICCPR
Author: Gunatilleke, Gehan
ISNI:       0000 0004 9355 3615
Awarding Body: University of Oxford
Current Institution: University of Oxford
Date of Award: 2020
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Abstract:
The freedom to manifest religion or belief, and the freedom of expression (‘the Two Freedoms’) are of paramount importance to the inner realm of the human person; yet they may be limited on certain grounds. Articles 18(3) and 19(3) of the International Covenant on Civil and Political Rights (ICCPR) accordingly set out the legal basis on which states may limit the Two Freedoms. This thesis seeks to answer the following question: to what extent can a conceptually coherent, normatively compelling, and politically appealing justificatory burden be placed on states when they limit the Two Freedoms under the ICCPR? The thesis contains seven chapters. The first evaluates the common approaches to justifying limitations on the Two Freedoms – both of which are recognised as basic liberties and claim rights in the liberal tradition. The second chapter presents a conceptual, normative and political case for an alternative approach to justifying limitations on the Two Freedoms. This alternative approach requires the state to demonstrate that the competing interests at play are sufficient reason to impose on the individual concerned a duty of justice to refrain from engaging in the impugned conduct. Chapters three, four and five deal with the historical discourse surrounding the drafting of articles 18(3) and 19(3), the orthodox interpretation of these two limitation clauses, and the jurisprudence of the United Nations Human Rights Committee respectively. These three chapters reveal that the two limitation clauses are particularly vulnerable to abuse. The final two chapters explain that a simple good faith approach to interpreting the ICCPR can offer a more conceptually coherent, normatively compelling, and politically appealing approach to justifying limitations on the Two Freedoms, i.e. a ‘duty-based’ approach. The thesis concludes that this approach can actually be accommodated within the object and purpose of the ICCPR, and can provide the Committee with a doctrinal framework to advance a justificatory approach based on duties of justice. Such an approach could add further impetus to our perennial struggle to defend two of our most cherished freedoms: the freedom to manifest religion or belief, and the freedom of expression.
Supervisor: Ghanea, Nazila Sponsor: University of Oxford
Qualification Name: Thesis (Ph.D.) Qualification Level: Doctoral
EThOS ID: uk.bl.ethos.816592  DOI: Not available
Keywords: International human rights law ; Legal theory
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