Abstract
In analyzing the travaux préparatoires and the present scope of the key European and Inter-American documents, this chapter will reveal the present content of the right to conscientious objection under freedom of thought, conscience, and religion. Moreover, in order to more explore the present scope of this right the approaches of judicial and nonjudicial mechanisms in the Europen and the Inter-American Human Rights Systems will be examined.
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Notes
5 Regional Level: The European and the Inter-American Human Rights Systems
For further information on the travaux preparatoires of Article 9 of the European Convention on Human Rights, see A. H. Robertson, Collected Edition of the “Travaux Préparatoires” of the European Convention on Human Rights (CETP), vol. I—VIII, Preparatory Commission of the Council of Europe, Committee of Ministers, Consultative Assembly, May 11—September 8, 1949 (The Hague: Martinus Nijhoff, 1975)
see also M. D. Evans, Religious Liberty and International Law in Europe (Cambridge: Cambridge University Press, 1997), 262–272
C. Evans, Freedom of Religion under the European Convention on Human Rights (Oxford: Oxford University Press, 2003), 38–45
D. C. Decker and L. Fresa, “The Status of Conscientious Objection under Article 4 of the European Convention on Human Rights,” New York University Journal ofInternational Law and Politics 33 (2001): 382–383.
Evans, Religious Liberty, 263; see also A. H. Robertson, “The European Convention for the Protection of Human Rights,” British Yearbook of International Law 27 (1950): 146–149
A. H. Robertson and J. G. Merrills, Human Rights in Europe: A Study of the European Convention on Human Rights, 3rd ed. (Cambridge: Grotius Publications Ltd., 1993), 1–14.
There were no official or unofficial figures from the 1950s to show how many countries had conscription and how many recognized the right to conscientious objection. In 1972, the first report on conscientious objection was published by the UN Secretary-General. Fifty-eight countries responded to the questionnaire during the preparation of the report. Twenty-five countries out of 58 did not have any form of compulsory military service. Of the other 33 countries, 19 did not recognize conscientious objection at all. However, only 58 countries responded to the questionnaire (E/CN.4/1118, Corr. 1 and Add. 1 through 3); today, 168 out of the 192 UN members still have armed forces, which are either professional or based on compulsory military service, and over 35 percent of those 168 countries with armed forces have recognized conscientious objection as a right (For further information regarding most of these countries see European Bureau for Conscientious Objection (2011), “Report to the Council of Europe,” 62, 63; C. Barbey, La Nonmilitarisation et les pays sans armée: une réalité (Switzerland: APRED, 2001)
B. Horeman and M. Stolwijk (1998, updated in 2005), “Refusing to Bear Arms: A Worldwide Survey of Conscription and Conscientious Objection to Military Service,” War Resisters’ International: London
see also D. Brett (2006) “Military Recruitment and Conscientious Objection: A Thematic Global Survey,” Conscience and Peace Tax Intenational: Leuven and Geneva
and M. Stolwijk (2005, updated in 2008) “The Right to Conscientious Objection in Europe: A Review of the Current Situation,” Quaker Council for European Affairs: Brussels, available at http://www.qcea.org/work/ human-rights/conscientious-objection/ (accessed September 30, 2013)). This percentage (over 35 percent) must have been lower during the 1950s.
For further information about the term “religion” in the case-law of the Court and the Commission see J. Murdoch, Freedom of Thought, Conscience and Religion: A Guide to the Implementation ofArticle 9 ofthe European Convention on Human Rights (Strasbourg: Human Rights Handbooks no. 9, Council of Europe, 2007), 12.
B. G. Tahzib, Freedom of Religion or Belief Ensuring Effective International Legal Protection (Martinus Nijhoff: The Hague/Boston/London, 1996), 73.
Clements, Mole, and Simmons lists five questions to be asked in order to understand whether there is a violation of Article 8–11 in L. Clements, N. Mole, and A. Simmons, European Human Rights Taking a Case under the Convention, 2nd ed. (London: Sweat/Maxwell, 1999), 175; see also Murdoch, Freedom of Thought, 10.
“The term ‘margin of appreciation’ refers to the space for maneuver that the Strasbourg organs are willing to grant national authorities, in fulfilling their obligations under the European Convention on Human Rights (the Convention)” (S. Greer, The Margin of Appreciation: Interpretation and Discretion under the European Convention on Human Rights, Council of Europe, 5 cited in the Council of Europe, Judicial Professions the Lisbon Network, 2000), available at http://www.coe.int/t/dghl/cooperation/lisbonnetwork/themis/echr/paper2_en.asp (accessed September 30, 2013). See also Lawless v. Ireland, Application no. 332/57, July 1, 1961; Handyside v. the United Kingdom, Application no. 5493/72, December 7, 1976; The Sunday Times v. the United Kingdom, Application no. 6538/74, April 26, 1979.
Evans, Freedom of Religion, 165. For further information see Evans, Religious Liberty, 317; F. G. Jacobs and R. C. A. White, The European Convention on Human Rights, 2nd ed. (Oxford: Clarendon, 1996), 211
P. van Dijk and G. J. H. Van Hoof, Theory and Practice of the European Convention on Human Rights, 3rd ed. (Deventer: Kluwer Law and Taxation, 1998), 557.
Article 53 states: “Nothing in this Convention shall be construed as limiting or derogating from any of the human rights and fundamental freedoms which may be ensured under the laws of any High Contracting Party or under any other agreement to which it is a Party”; Evans, Freedom of Religion, 165; see also M. N. Shaw, “Freedom of Thought, Conscience and Religion,” in The European System for the Protection of Human Rights, ed. R. St. J. Macdonald, F. Matscher, and H. Petzold (Dordrecht and London: Kluwer Academic, 1993), 445–446.
M-F. Major, “Conscientious Objection and International Law: A Human Right?,” Case Western Reserve journal oflnternational Law 24 (1992): 359.
For further discussion on this issue see L. M. Hammer, The International Human Right to Freedom ofConscience: Some Suggestionsfor Its Development and Application (Dartmouth: Ashgate, 2001), 203; see also Major, “Conscientious Objection and International Law,” 375–376.
D. Gomien, Short Guide to the European Convention on Human Rights, 3rd ed. (Strasbourg: Council of Europe, 1991), 95.
S. Naismith, “Religion and the European Convention on Human Rights,” Human Rights and UK Practice 2 (2001): 9.
According to Article 1 of the European Convention on Human Rights, “the High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms” set out in the Convention and its Protocols (For further information on positive obligations see J-F. Akandji-Kombe, Positive Obligations under the European Convention on Human Rights: A Guide to the Implementation ofthe European Convention on Human Rights, Human Rights Handbooks no. 7 (Strasbourg: Council of Europe, 2007), 5).
K. Boyle, “Conscientious Objection in International Law and the Osman Murat Ülke Case,” in Conscientious Objection: Resisting Militarized Society, ed. Ö. H. Çinar and Ç. Üsterci (London and New York: Zed Books, 2009), 217.
Brems, E., A Commentary on the United Nations Convention on the Rights of the Child: Article 14: The Rights to Freedom of Thought, Conscience and Religion (The Hague: Martinus Nijhoff, 2006), 17. For further discussion see also Takemura,International Human Right, 115.
Taylor, P. M. Freedom of Religion: UN and European Human Rights Law and Practice (Cambridge: Cambridge University Press, 2005), 150; Boyle, “Conscientious Objection in International Law,” 217; see also Commissioner Liddy’s opinion in the case of European Commission of Human Rights (Tsirlis andKoulompas v. Greece, Application nos. 19233/91 and 19234/91, Eur. Comm’n H.R:s Report, March 7, 1996, 25).
Only Costa Rica, Dominica, Grenada, Haiti, and Panama, St Kitts and Nevis, St Lucia, St Vincent and the Grenadines have no armed forces (C. Barbey, La Non-Militarisation et les Pays Sans Armée: Une Réalité; (Switzerland: APRED, 2001). Thirteen out of 35 OAS members have compulsory military service. The remaining countries maintain a professional army (National Human Rights Commission of Korea (December 2005), “A Research Report on the Issue of Conscientious Objection to Military Service,” National Human Rights Commission of Korea: Seoul. See also Horeman and Stolwijk (1998, updated in 2005)); Brett, “Recruitment and Conscientious Objection,” 5, 8–9, 19, 30–33, 44–45, 49–50.
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© 2013 Özgür Heval Çınar
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Çınar, Ö.H. (2013). Regional Level: The European and the Inter-American Human Rights Systems. In: Conscientious Objection to Military Service in International Human Rights Law. Palgrave Macmillan, New York. https://doi.org/10.1057/9781137366085_6
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