A Right to Conscientious Objection Beyond the Military Context?

by | Apr 25, 2024

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About John Adenitire

Dr John Adenitire is a Senior Lecturer in the School of Law at Queen Mary University of London. His research has focused on the moral and legal right to exemption for conscientious objectors from a wide variety of legal obligations, including anti-discrimination norms. He is currently working on a book project on non-human animals in constitutional law and theory. He writes in the fields of public law, legal theory, comparative public law, and law and religion.

The European Court of Human Rights (ECtHR) recently held that Türkiye violated Article 9 of the Convention (freedom of conscience) when it convicted the Applicant, Mr Murat Kanatli, for refusing to perform his one day of military service as a reservist. Mr Kanatli is an atheist and holds sincere pacifist and anti-militarist beliefs. He is also the Cypriot representative of the European Bureau for Conscientious Objection. He had told the Turkish authorities that he was prepared to perform alternative civilian service. However, Turkish law did not allow for this, and Mr Kanatli was first fined and then imprisoned for ten days when he refused to pay the fine. The ECtHR, following well-established precedent, held that the Turkish failure to provide for a right to conscientious objection violated Article 9 of the Convention and awarded Mr Kanatli compensation and costs for the violation.

The significance of this case is not in its recognition of a right to conscientious objection to military service even as a reservist. Despite decades of the European Commission of Human Rights (a Convention body which has ceased its functions) refusing to recognise a right to conscientiously object to military service, the ECtHR recognised such a right in Bayatyan v Armenia in 2011. It is also clear that atheists such as Mr Kanatli enjoy the protection of Article 9 given that the Court states in every Article 9 judgment that the right ‘is a precious asset for atheists, agnostics, sceptics and the unconcerned’. Perhaps, the significance of the case lies in the fact that it is the first time that the Court has recognised the right in the context of a request to perform military service only on a single day.

Nevertheless, I would caution against viewing this case as particularly significant other than for the Applicant. In fact, it may reinforce an erroneous impression that a right to conscientious objection is only relegated to the context of military service. When, for example, the European Bureau for Conscientious Objection calls for the recognition of this right, it makes clear that it calls for it only in the context of opposition to military service. However, as I have argued in detail, the law of various liberal States and of the ECHR has long recognised a right to object to any legal obligation whatsoever. Accordingly, anti-vaxxers, 5G conspiracy theorists, those opposed to abortion, those opposed to same-sex marriage, and many others could invoke the right to try to escape complying with their legal obligations. Of course, those with more progressive causes, such as pacifists, vegans, those that support assisted suicide, those that support a right to abortion, and many others, could also invoke the right.

A right to conscientious objection is a very expansive right which, depending on those who invoke it, may be used for good or ill. So why should the Convention or liberal States recognise such a right given the possibility for abuse? Arguably, because liberalism calls for respect for people’s conscience, given its importance for personal autonomy. Respecting conscience also entails regard for people’s wellbeing and personal identity, given the harm of being compelled to act in a way that violates your deepest convictions which are constitutive of your personal identity. Accordingly, recognising the right may be a requirement of every institution, such as the ECtHR, which claims liberal credentials. Furthermore, the right is not absolute and so courts can deny granting exemptions if there are good reasons (e.g. public health or the rights of others) for doing so. Given that they are ways to manage risks associated with the freedom of conscience, all liberals should be in support of a right to conscientious objection which extends beyond the military context.

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