Freedom of Conscience as a Human Right and Conscience Clause as a Legal Institution in the International System of Human Rights Protection (Special Focus on European Context)

Abstract

The United Nations recognized the right to conscientious objection to military service only in 2004, with far-reaching restrictions. At the Council of Europe, interpretation for the purpose of issuing ruling was derived from the provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms, however it has never been given autonomous treatybased legal regulation. Dispositions such as resolution 1763 (2010) of the Council of Europe or Strasbourg judicial decisions, respecting a recognition margin, could only call for recognition or observance of conscience clause by the states – parties to the Convention. These states, however, already as member states of the European Union – signatories of Treaty of Lisbon – although actually recognising Article 10 of the EU Charter of Fundamental Rights as specification of freedom of conscience, still retained a far-reaching autonomy in its legal configuration. This paper answers the following research questions: is recognition of freedom of conscience as a human right, justifying the right for conscientious objection, requisite for the necessity to adopt conscience clause into the international system of human rights protection, and, consequently, in the state legal orders; if so, is the “universal” mandate of transnationally recognized right for conscientious objection strong enough to overcome the arbitrariness of statutory solutions of state legal orders?