4.1 Constitutional and legislative acknowledgment of conscientious objection

Although there are a number of limited earlier precedents, the modern legislative recognition of conscientious objection can probably be traced back to the first Australian Defence Act of 1903 which granted total exemption from military service to those who could demonstrate a conscientious objection to bearing arms.[1] 

By the end of the First World War, conscientious objection provisions had also appeared in Canada, New Zealand, the UK, and the USA; these lapsed with the end of conscription but were reinstated in an amended form with the approach of the Second World War - and in Denmark, where, as in Australia, provision for conscientious objection has remained on the statute book ever since. In Canada, the UK and New Zealand the provisions for conscientious objection lapsed with the repeal of the legislation establishing obligatory military service, in 1945, 1960 and 1973, respectively. In the USA, however, also in 1973, the legislation was simply suspended and provisions for the recognition of conscientious objection, still based on those brought in with the Selective Training and Service Act of 1940, remain valid.

Table 8 summarises the legislative history elsewhere. However the concept of conscientious objection is more widespread since some States which do not appear in Table 8e.g. Chad,[2] have at times reported in some detail on the arrangements for conscientious objectors without providing details of the relevant legislation.

The German Federal Republic provides the first instance of the concept of conscientious objection being incorporated in a national Constitution; Article 4.3 of the 1949 Grundgesetz stating: No one may be forced against his conscience into armed war service. (The post-war Japanese constitution had excluded the maintenance of armed forces, thereby seemingly rendering reference to individual conscientious objection superfluous.) Subsequently, many States have first acknowledged the right of conscientious objection in constitutions drawn up after radical political change; Portugal and Spain in the 1970s, Brazil, Paraguay and Ecuador in the 1980s and 1990s, and numerous Eastern European and former Soviet States in the years since 1989. Sometimes, however, constitutions refer to the possibility of alternative service without any specific mention of, or even allusion to, conscientious objection. Examples (both from 1992) are Article 52 of the Constitution of Uzbekistan and Article 139 of the Constitution of Lithuania. In both of these cases it is only in subordinate legislation that reference is made to the principle of conscientious objection. 

In Belarus, even following a recommendation by the Constitutional Court in 2000, at least two attempts to introduce legislation to implement the reference to alternative service in Article 57 of the 1994 Constitution have been unsuccessful and nowhere in national legislation is there apparently any explicit reference to the concept of conscientious objection. On paper, Belarus thus remains in a position not far different from that created by Article 72 of the Turkish Constitution: National service is the right and duty of every Turk. The manner in which this service shall be performed, or considered as performed, either in the Armed Forces or in the public services, shall be regulated by law - a provision which has not been used in Turkey to accommodate conscientious objection.

A comparison of the provisions in the Brazilian Constitution, promulgated in 1988, and that of Paraguay just four years later gives a revealing insight into how rapidly thinking about good practice was moving forward at that time. Article 143 of the Brazilian Constitution reads: It is within the competence of the Armed Forces, according to law, to provide an alternative service for those who, in peacetime, after being enlisted, claim grounds of conscience, understood to be based on religious faith and philosophical or political beliefs, for exemption from purely military activity.

By contrast, as the Government of Paraguay states[3] Articles 24, 33, 37 and 129 of the 1992 Constitution cumulatively establish progressive standards that guarantee the right to conscientious objection in a manner consistent with the interpretation given by the United Nations Human Rights Committee. The specific reference in Paragraph 5 of Article 129 reads, Those who declare their conscientious objection are to perform service beneficial to the civilian population in aid centres designated by law and operated under civilian jurisdiction. The laws implementing the right to conscientious objection shall neither be punitive nor impose burdens heavier than those imposed by military service. 

Unfortunately, both Brazil and Paraguay are also examples where detailed legislation to implement the constitutional provisions is lacking. In the case of Brazil, according to the Jehovah's Witnesses,[4] Since the current Federal Constitution was published... there has been no decision on processes of religious conscientious objectors. There are thousands of cases awaiting resolution in the Ministries of Defense and Justice... when the process reaches the Ministry of Justice... (it) comes to a halt. As a result, the petitioners' situation remains unresolved. In that of Paraguay, In 2003 a bill regulating conscientious objection and establishing alternative civilian service was sent by the Chamber of Deputies to the Chamber of Senators for consideration and adoption. The Chamber of Senators rejected the bill on the ground that some articles were at variance with constitutional principles, and consideration of the possibility of introducing regulations governing the fundamental right of conscientious objection was definitively shelved.[5] As a result, the situation of conscientious objectors continues to be governed by the temporary measures decided on in 1994 by the Human Rights Committee of the Chamber of Deputies, which agreed, in view of the lack of regulatory legislation... to receive declarations from conscientious objectors and to approve their registration on a provisional basis, thereby exempting the objectors from military service until such time as the law established a public body to take responsibility for organizing alternative service.

A parallel situation occurs in Ecuador, where according to Article 188 of the 1998 Constitution Military service is compulsory. However, citizens will be assigned to civil service in the community if a conscientious objection is invoked because of moral, religious or philosophical grounds in the manner determined by law, but no civil service has been set up.[6]

In other situations it has been argued that without any specific legislation the right to conscientious objection may be derived directly from provisions in national constitutions guaranteeing freedom of thought, conscience, religion or belief. Thus the Defensor del Pueblo in Venezuela[7] quotes two articles of the 1999 Constitution - Article 134: Under the law everyone has the duty to provide the civil or military services necessary for the defence, preservation and development of the country, or to respond to situations of public calamity. No one may be subjected to forced conscription (reclutamiento forzoso), and Article 61: Everyone has the right to freedom of conscience and to express it, except where its exercise affects his or her legal personality or constitutes a crime. Taken together, he argues, these have the effect of making military service in Venezuela voluntary, without the need for any further implementing legislation. He does not however cite any instance where an attempt had been made to realise this right. In a similar vein, his Colombian counterpart[8] quoted at length the dissenting opinion which he himself (at the time a Constitutional Court judge) and two others had entered in case 511/94, in which they argued that the unconditional guarantee of freedom of conscience in the Colombian constitution had to be seen as prevailing over the obligation to perform military service, recognised in the constitution as subject to a number of exceptions. 

Attractive though these arguments are, no evidence has yet emerged of their convincing national courts. The issue does not seem to have been tested in Venezuela; in the Colombian case cited the majority took the view that the obligation to perform military service took precedence over the freedom of religion and belief. A similar decision was made in 2004 in the Constitutional Court of the Republic of Korea: The legislative decision is justifiable in light of the gravity of the interest of national security. Then, the legal clause in the instant case cannot be considered a violation of the conscientious objector's freedom of conscience or freedom of religion.[9] The Supreme Court was even blunter: Given the division of the country, the duty of national defense, being the most basic guarantee of the state's existence, takes precedence over the freedom of conscience.[10]

Indeed, even explicit constitutional provisions may be inadequate to ensure the recognition of conscientious objectors, exemplified by the decision in the supreme court of Azerbaijan in February 2005 that the constitutional provision recognising conscientious objection could take effect only once enabling legislation was in place, and until that time a conscientious objector remained liable for the performance of obligatory military service.

  • [1] Horeman, B. and Stolwijk, M. (1998), Refusing to Bear Arms, War Resisters International, London.
  • [2] Ibid.
  • [3] In paragraphs 457 and 458 of its second State Report under the International Covenant on Civil and Political Rights, UN document CCPR/C/PRY/2004/2.
  • [4] General Counsel of Jehovah's Witnesses, response to OHCHR questionnaire 2003
  • [5] UN Document CCPR/C/PRY/2004/2, paragraph 46
  • [6] Child Soldiers Global Report 2004 (Coalition to Stop the Use of Child Soldiers, London)
  • [7] Response by Defensor de Pueblo of Venezuela to the OHCHR questionnaire, 2003.
  • [8] Response by Defensor de Pueblo of Colombia to the OHCHR questionnaire, 2003.
  • [9] Decision Number 2002 Heonga1 (August 26, 2004), cited by General Counsel of Jehovah's Witnesses, evidence submitted to the OHCHR, February 2005
  • [10] As quoted in an editorial in
    english.chosun.com/w21data/html/news/200512/200512260029.html, 26th December, 2005