International legal dimension of the right to conscientious objection: considerations with respect to the ECtHR judgment in Dyagilev v. Russia

Abstract

The article delves into international legal aspects of the enjoyment of the right to conscientious objection. It is argued that the collision between the permissive norm of international law providing for sovereign discretion to introduce and enforce domestic rules on matters which are essentially within the domestic jurisdiction of states, including those relating to compulsory military service, and the mandatory norm of international law ensuring the right to conscientious objection. The jurisprudence of the Human Rights Committee and the European Court of Human Rights pivots upon the assumption that the right to conscientious objection is derived from the right to the freedom of thought, religion, and conscience and is covered by the international human rights treaties enshrining the latter (including Article 9 of the European Convention on Human Rights and Fundamental Freedoms). It is revealed that the standard which has been found in ECtHR jurisprudence means that Article 9 defends the opposition to military service, where such opposition is motivated by a serious and insurmountable conflict between the obligation to serve in the army and a person’s conscience or his deeply and genuinely held religious or other beliefs, with states parties retaining a certain margin of appreciation and being able to establish assessment procedures to examine the seriousness of the individual’s beliefs and to prevent the abuse of the right. However, in Dyagilev v. Russia the Court did not take into account that the circumstances of the case point out the actual unlimited margin of appreciation in this area, which leads to the situation when the conscript had had to provide “evidence” that he was a pacifist (in the absence of legally outlined minimum criteria helping assess the substantiation), but not to substantiate the very request by the fact that he shared pacifist views. Consequently, such a broad margin of appreciation implies that the state abuses its sovereignty, for the procedure of the examination of requests runs counter to the purpose of the right to the freedom of conscience and, consequently, the right to the conscientious objection.