The Right to Conscientious Objection to Military Service and Turkey's Obligations under International Human Rights Law

Ö. Çinar, Kenneth A. Loparo, Özgür Heval Ç?nar

• Publisher: Palgrave Pivot
• Year: 2014
• Print ISBN: 9781349500154, 9781137468109
• eBook ISBN: 9781137468116
• Topic: Law
• Subtopic: Civil Rights in Law
• Index: Law

This study examines Turkey's non-recognition of the right to conscientious objection to military service and locates this non-recognition within the context of international human rights law - specifically United Nations and European Union system.

Part I

The Recognition of Conscientious Objection in International Human Rights Law

Abstract: Part I examines the right to conscientious objection in international human rights law as a legitimate exercise of freedom of thought, conscience, and religion. It deals with the content and scope of the right to conscientious objection at both the international and regional levels. At the international level, UN mechanisms will be explored, while the European mechanisms will be examined at the regional level.

Inar, Özgür Heval. The Right to Conscientious Objection to Military Service and Turkey’s Obligations under International Human Rights Law. New York: Palgrave Macmillan, 2014. DOI: 10.1057/9781137468116.0005.

Nowadays there are specific provisions recognising the right to conscientious objection to military service in Article 10(2) of the Charter of Fundamental Rights of the European Union (EU) and Article 12(1) of the Ibero-American Convention on Young People’s Rights.¹ This right is also recognised by the United Nations (UN) and European mechanisms as a legitimate expression of freedom of thought, conscience, and religion.² It is clearly evident that the right to conscientious objection, has, over time, undergone a positive evolution in international human rights law.

Part One deals with the right to conscientious objection at both the international (UN) (Chapter 1) and regional (European) (Chapter 2) level;³ since Turkey is part of the UN and European system this section is of great significance.

The importance of Chapter 1 and 2 lie in the fact that their in-depth examination of international and regional case law will permit a more comprehensive understanding of the present scope of the right to conscientious objection as part of the right to freedom of thought, conscience, and religion. In order to elucidate the present situation regarding this right, references will also be made to resolutions, recommendations, and reports concerning this right in non-judicial mechanisms within the UN and European systems.⁴

Chapter 3 outlines the present international standards as regards the right to conscientious objection to military service, essential to grasping the obligations that this right entails for the countries—like Turkey—where this right has yet to be recognised.

Notes

1 Charter of Fundamental Rights of the European Union, 2000/C 364/01, OJ C 83 of 30 March 2010, adopted on 7 December 2000 and Ibero-American Convention on Young People’s Rights, adopted on 10–11 October 2005, entered into force 1 March 2008. Article 10(2) of the Charter of Fundamental Rights of the European Union states that “The right to conscientious objection is recognised, in accordance with the national laws governing the exercise of this right.” Article 12 of the 2008 Ibero-American Convention on Young People’s Rights also states that “1) Youth have the right to make conscientious objection towards obligatory military service. 2) The States Parties undertake to promote the pertinent legal measures to guarantee the exercise of this right and advance in the progressive elimination of the obligatory military service. 3) The States Parties undertake to assure youth under 18 years of age that they shall not be called up or involved, in any way, in military hostilities.”

2 Freedom of thought, conscience and religion is recognised in the following human rights documents: Article 18 of the Universal Declaration of Human Rights (UDHR) (adopted on 10 December 1948, UNGA. Res.172 A (III)); Article 18 of the International Covenant on Civil and Political Rights (ICCPR) (adopted on 16 December 1966, entered into force on 23 March 1976, 999 UNTS 171); Article 9 of the European Convention on Human Rights (ECHR) (adopted on 4 November 1950, entered into force on 3 September 1953, ETS. 5).

3 For the most recent study regarding the right to conscientious objection in international human rights law see Özgür H. Çınar (2013), Conscientious Objection to Military Service in International Human Rights Law, Palgrave Macmillan: New York.

4 See e.g. the UN Commission on Human Rights, Human Rights Council, European Court of Human Rights, the Committee of Ministers of the Council of Europe, the European Committee of Social Rights and the EU Parliament.

1

International Level: The United Nations Human Rights System

Abstract: This chapter explores the understanding of the judicial and non-judicial bodies of the UN regarding the right to conscientious objection. In this regard, the chapter examines the approach of the United Nations General Assembly, the Commission on Human Rights, the Human Rights Council, the Human Rights Committee and other UN mechanisms.

Inar, Özgür Heval. The Right to Conscientious Objection to Military Service and Turkey’s Obligations under International Human Rights Law. New York: Palgrave Macmillan, 2014. DOI: 10.1057/9781137468116.0006.

The right to freedom of thought, conscience, and religion is explicitly recognised in Articles 18 of the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR). However, there is no specific reference to the right to conscientious objection in the UDHR and ICCPR.¹ Presently, the right to freedom of conscientious objection as a legitimate exercise of the right to freedom of thought, conscience, and religion is recognised by the UN mechanisms.²

Efforts have also been made by the judicial and non-judicial bodies of the UN to interpret the right to conscientious objection. Hence, in the following sections the approach of the United Nations General Assembly, the Commission on Human Rights, the Human Rights Council, and the Human Rights Committee will be explored.

1.1 The United Nations General Assembly: the example of apartheid

UN General Assembly (GA) Resolution no. 33/165, 35/206B and no. 39/72A[3] supported a form of selective conscientious objection when the GA backed those in South Africa who refused to serve in the security forces on account of their rejection of any involvement in the enforcement of apartheid. In the resolution of 33/165 the GA recognised “the right of all persons to refuse service in military or police forces which are used to enforce apartheid”.³

1.2 The Commission on Human Rights: conscience extended

Conscientious objection appeared on the Commission on Human Rights (CHR) agenda from its inception in 1971.⁴ Then, in 1987, a resolution (1987/46) was adopted by the CHR which, for the first time, recognised ...

Table of contents

• Cover
• Title
• Introduction
• Part I:  The Recognition of Conscientious Objection in International Human Rights Law
• Part II:  Conscientious Objection to Military Service: The Republic of Turkey
• List of Cases
• List of Treaties and Other International Instruments
• List of International Official Documents
• List of Turkeys Legal Instruments
• Bibliography
• Index