Violations of vaguely indicated social standards do not justify limitations of freedom of religion or belief under article 18.3 ICCPR.
by Patricia Duval
Article 3 of 5. Read article 1 and article 2.
Under Article 18.3 of the International Covenant on Civil and Political Rights (ICCPR), all limitations must also be “necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.”
- Public Welfare
This list is exhaustive, and no other justification is permitted. “Public welfare” is not included in the list.
In its Comment N° 22 on the possible limitations to the right to freedom of religion or belief under Article 18.3, the UN Human Rights Committee laid out that: “Limitations imposed must be established by law and must not be applied in a manner that would vitiate the rights guaranteed in article 18. The Committee observes that paragraph 3 of article 18 is to be strictly interpreted: restrictions are not allowed on grounds not specified there, even if they would be allowed as restrictions to other rights protected in the Covenant, such as national security” (§8).
As concerns the protection of “public welfare,” the Human Rights Committee has found that this term is too vague to fall into any of the possible restrictions listed in Article 18.3.
Back in 2014, the Committee made a very clear-cut Recommendation to Japan: “22. The Committee reiterates its concern that the concept of ‘public welfare’ is vague and open-ended and may permit restrictions exceeding those permissible under the Covenant (arts. 2, 18 and 19). The Committee recalls its previous concluding observations (see CCPR/C/JPN/CO/5, para. 10) and urges the State party to refrain from imposing any restriction on the rights to freedom of thought, conscience and religion or freedom of expression unless they fulfil the strict conditions set out in paragraph 3 of articles 18 and 19” (Concluding Observations, 20 August 2014, CCPR/C/JPN/CO/6, emphasis added).
In the present case, the dissolution of the Unification Church is requested on the basis of Article 81(i) of the Religious Corporations Act for having seriously harmed public welfare.
This provision of the Religious Corporations Law does not fulfil these conditions and should not serve as a basis for dissolution.
Furthermore, the Ministry of Education, Culture, Sports, Science, and Technology (“MEXT”) maintains that public welfare has been harmed by Unification Church believers soliciting donations and “disrupting the peaceful life of many people including the family members” of those solicited.
However, the “peaceful life of citizens and families” is not protected under article 18.3 and is not considered a fundamental right of others that could justify a limitation to the manifestation of beliefs, in particular the dissolution of a church.
Limitations are possible only to address extreme situations where the State has to limit the right to manifest one’s religion or belief such as when health is in danger (e.g., use of drugs for religious practices), or threats to public safety and order (e.g., terrorism), morals (e.g., restrictions on pornographic materials) or fundamental rights of others.
The 1985 “Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights”—which were adopted at an international conference of experts of international law and became an authoritative reference on the subject—contain interpretative principles relating to specific limitation clauses.
Concerning the “rights and freedoms of others” or the “rights or reputations of others,” the Principles provide: “36. When a conflict exists between a right protected in the Covenant and one which is not, recognition and consideration should be given to the fact that the Covenant seeks to protect the most fundamental rights and freedoms.”
This means that the fundamental right to freedom of religion or belief prevails over the rights of others which are not fundamental rights. And the wellbeing of others and protection from disruption of their peaceful life is not a fundamental right. It cannot justify the dissolution of a religious entity.
- Social Norms
MEXT maintains that the grounds establishing the harm done by the Unification Church are the findings of thirty-two Japanese Courts that the solicitation of donations by the believers was tortious as it violated “social norms” and went beyond “social acceptability.”
However, the Human Rights Committee made it very clear that, under the Covenant which Japan has committed to, new or minority beliefs or religious practices are protected even if not accepted by dominant ideologies or society.
In its Comment N° 22, the Committee elaborated on the interpretation to be given to Article 18 ICCPR: “2. Article 18 protects theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief. The terms ‘belief’ and ‘religion’ are to be broadly construed. Article 18 is not limited in its application to traditional religions or to religions and beliefs with institutional characteristics or practices analogous to those of traditional religions. The Committee therefore views with concern any tendency to discriminate against any religion or belief for any reason, including the fact that they are newly established, or represent religious minorities that may be the subject of hostility on the part of a predominant religious community” [emphasis added].
New beliefs and their manifestations are protected even if they are the subject of hostility by the majority.
And “social norms” or “social acceptability” are no valid criteria in the area of religious beliefs or practices.
Religious practices, such as the solicitation of donations for maintaining religious institutions, cannot be measured against the opinion of the majority or the majority practice in this area.
Furthermore, the State has an obligation of protection of minorities against any hostility or harassment as part of its duty of neutrality in religious matters.
On 30 April 2024, four UN Special Rapporteurs sent an official letter to the Japanese Government. Special Rapporteurs are independent experts appointed to monitor specific human rights in the various State members and report to the UN Human Rights Council. Those four Special Rapporteurs were those mandated for freedom of religion or beliefs, for freedom of education, freedom of association, and freedom of expression.
Those Rapporteurs were alerted by a report by the Jehovah’s Witnesses on an alarming situation in Japan. They then wrote an official letter to Japan’s Prime Minister and expressed their “serious concern” about what appeared to be “an emerging pattern of attacks and threats” against religious minorities in Japan, through the publication of a “Q&A on Responses to Child Abuse Related to Religious Beliefs, etc.”
In particular, they underlined the following: “Several of the guidelines make vague references to deviations from ‘social conventions,’ ‘social appropriateness,’ or ‘socially accepted norms,’ as the basis for establishing potential forms of abuse, thereby limiting the diversity of manifestations of religion or belief which are inherent to its free exercise.”
In this official letter, the four Special Rapporteurs gave a full review of applicable international human rights instruments and case law forbidding the use of such concepts to limit the rights of believers.
States, like Japan, have a duty to maintain and protect diversity in the area of religion or belief. They are not entitled to set “norms” for the manifestation of religious beliefs. Otherwise any newly established religion or minority beliefs could be outlawed.
Consequently, religious practices should not be evaluated by domestic courts against “social appropriateness,” or “social norms,” and the dissolution of a religious corporation cannot be ordered on the basis of such rulings under international human rights standards.
