July 27, 2011
An interaction can be observed regarding the recognition of the right to conscientious objection in three international human rights systems– the UN, European and Inter-American.
As described in Part I, before the Grand Chamber judgment in the case of Bayatyan v. Armenia, the right to conscientious objection was not recognized as a separate right under Article 9. Cases concerning the conscientious objection were dealt with by using Article 9 in conjunction with Article 4 § 3 (b).[1] Articles 18 and 8 of the UN International Covenant on Civil and Political Rights (ICCPR) protect the same rights as Articles 9 and 4 of the Convention.[2] The UN Human Rights Committee (UNHRC), the body that monitors implementation of the ICCPR, when examining individual complaints initially took a view that the ICCPR, and in particular its Article 18, did not provide for the right to conscientious objection, especially taking into account Article 8 § 3 (c) (ii) (See: L.T.K. v. Finland). That was exactly the position of the European Commission of Human Rights (European Commission) for many years and that of the Chamber in the Bayatyan judgment.
Developments occurred in UNHRC’s position on the matter in 2006. In the cases of Yeo-Bum Yoon v. Republic of Korea and Myung-Jin Choi v. Republic of Korea, in which the UNHRC for the first time had to deal with complaints of two convicted Jehovah’s Witnesses with respect to a country where the right to conscientious objection was not recognised. The UNHRC held as follows:
“8.2 The Committee … notes that article 8, paragraph 3, of the Covenant excludes from the scope of ‘forced or compulsory labour’, which is proscribed, ‘any service of a military character and, in countries where conscientious objection is recognized, any national service required by law of conscientious objectors’. It follows that the article 8 of the Covenant itself neither recognizes nor excludes a right of conscientious objection. Thus, the present claim is to be assessed solely in the light of article 18 of the Covenant …”
Now in 2011 the Grand Chamber mentioned the position of the UNHRC on this matter and came to the same conclusion regarding the Convention in its Bayatyan judgment after examining the Travaux préparatoires: “In the Court’s opinion, the Travaux préparatoires confirm that the sole purpose of sub-paragraph (b) of Article 4 § 3 is to provide a further elucidation of the notion “forced or compulsory labour”. In itself it neither recognises nor excludes a right to conscientious objection and should therefore not have a delimiting effect on the rights guaranteed by Article 9” (paragraph 100). The Court also held that “… in defining the meaning of terms and notions in the text of the Convention, the Court can and must take into account elements of international law other than the Convention and the interpretation of such elements by competent organs” (paragraph 102).
Now let’s take a look at the Inter-American system. Articles 6 § 3 (b) and 12 of the American Convention on Human Rights are similar to Articles 4 § 3 (b) and 9 of the European Convention.[3] In the case of Cristián Daniel Sahli Vera and Others v. Chile the Inter-American Commission found that Article 12 was to be read in conjunction with Article 6 § 3 (b) and concluded that conscientious objection was protected under the American Convention only in countries where it was recognised. This approach was later confirmed in the case of Alfredo Díaz Bustos v. Bolivia.
To my mind, it is very likely that the position of organs of the Inter-American system will change to be coherent with the positions of the UNHRC and the Court. Both cases mentioned above were decided in 2005, which is prior to the UNHRC’s communication in the cases of Yeo-Bum Yoon v. Republic of Korea and Myung-Jin Choi v. Republic of Korea and the Bayatyan judgment. Furthermore, the Inter-American Commission relied heavily on the case-law of the European Commission and the UNHRC as it existed in 2005.
[1] “For the purpose of this Article the term “forced or compulsory labour” shall not include: (b) any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service.”
[2] Article 8 § 3: “(a) No one shall be required to perform forced or compulsory labour; …(c) For the purpose of this paragraph the term “forced or compulsory labour” shall not include: (ii) Any service of a military character and, in countries where conscientious objection is recognized, any national service required by law of conscientious objectors; …”
Article 18 § 1: “Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching …”
[3] Article 6 § 3: “For the purposes of this article, the following do not constitute forced or compulsory labor: (b) military service and, in countries in which conscientious objectors are recognized, national service that the law may provide for in lieu of military service.”
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