Teisė atsisakyti atlikti karinę tarnybą dėl įsitikinimų pagal tarptautinius žmogaus teisių apsaugos dokumentus ; Conscientious objection to military service in international human rights instruments

Abstract

Current debates on conscientious objection to military service reveal a conflict between conscription and individual freedom of conscience; they question the scope of human rights and liberties as well as raise an issue of their extension. The majority of member states of UN and CoE officially recognize a right to conscientious objection. However, the flow of complaints to international human rights monitoring bodies demonstrates absence of a general consensus on the concept, origin and legal status of this human right. The paper aims to examine, whether and how the right to conscientious objection to military service has a link with fundamental human rights in the main international human rights instruments. Human rights documents of UN and CoE – two international organizations, most relevant for the development of human rights standards – were chosen as the object of research. The scope of analysis is limited to recommendatory documents of UN CHR, PACE and Committee of Ministers of the CoE, the case-law of ECtHR under ECHR as well as the case-law of UN HRC under ICCPR. Results of research show that in the recommendatory documents of UN and CoE institutions the right to conscientious objection to military service is derived from the fundamental right – the right to freedom of thought, conscience and religion, embedded in Article 18 of ICCPR and Article 9 of ECHR respectively. However, the case-law of UN and CoE institutions is ambivalent in these terms. After a long-term disavowal of the considered right with regard to ICCPR, in 1993 UN HRC explicated that this right can be derived from the right to freedom of thought, conscience and religion (General Comment No. 22: Article 18 of the ICCPR). Meanwhile, ECtHR (The Commission) does not recognize the right to conscientious objection to military service under ECHR. However, both UN HRC and ECtHR (The Commission) recognize legal consideration of complaints on the violation of the right to such conscientious objection in terms of discrimination. Till January 2007, Article 4 ECHR and Article 8 of ICCPR respectively were regarded to be the only obstacle to originate the right to conscientious objection in the right to freedom of thought, conscience and religion in the case-law of UN HRC and ECtHR. According to these institutions, recognition of the right of conscientious objection fell within the jurisdiction of the contracting State Party under these articles. Nevertheless, the January 2007 Communication of UN HRC disavowed the significance of Article 8 of ICCPR and, on the grounds of Article 18, set a task to contracting State Parties to justify non-recognition or restrictions of the right to conscientious objection as well as prove the damage done to the State by the implementation of the right under consideration. A ground-breaking position of UN HRC can be explained by recommendatory character of the decisions, and legal obligatory nature of ECtHR decisions determines a more conservative stance of the latter institution. Notwithstanding, the lately practice of UN HRC demonstrates that this institution claims to embody a driver of international legal recognition of the right to conscientious objection.