One of the most common reproaches directed at international law is that it might not be so international but rather a by-product of Western societies. This criticism strongly resonates when considering that consensualism is one of the most cardinal principles underlying public international law (PIL), which is created for and by states and the peoples who inhabit them. Unlike in domestic legal systems, the consent of legal subjects – namely, the states – is always necessary, in one way or another, for positive international law norms to exist.Footnote 1 As such, PIL sources, chiefly multilateral treaties and customary international law (CIL), reflect the intent, will, and consent of the community of nations,Footnote 2 which encompasses all continents and civilizations.
Most criticism concerning the alleged Western-centrism of PIL relates to CIL. Many scholars deem that most existing CIL norms are Western-centric. Allegedly, existing CIL rules still serve the interests of the “capitalist states”, that is, Western states.Footnote 3 This Western-centrism criticism focuses on practice, since Western practice constitutes the bulk of the practice factored in by international lawyers to assess whether a customary norm exists. Indeed, over the centuries, it is clear that Western states “dominated the process of creation of ‘customary’ international law”,Footnote 4 while a “great body of customary international law was made by remarkably few States”.Footnote 5 In contrast, non-Western state practice appears to have been “neglected”, which indeed makes international law look like a Western by-product.Footnote 6 For instance, within the field of human rights, since the 1980s, Onuma has been calling for a “transcivilizational” or “intercivilizational” perspective, which some rather call “multi-civilizational”,Footnote 7 in international law, that is, a perspective that would fully consider non-Western states and peoples.
Nevertheless, CIL is not the only PIL source posing problems, as Western practice also holds sway over the operation and interpretation of treaties. This is particularly worrying in light of the “treaty-making revolution”.Footnote 8 Indeed, since the 1960s, treaty-making has been seen by newly independent states as the PIL source being most respectful of their newly acquired sovereignty by opposition to CIL.Footnote 9 While newly independent states remained bound by existing custom, drafting new treaties allowed them to maintain greater stability in their legal relations while retaining maximum control by “owning” treaties.Footnote 10 Still, as it will be evinced below, even within the field of treaty law, Western-centrism is coming back through the backdoor.
This article aims to deal with the problématique of Western-centrism in PIL by engaging with the treatment of Asian peoples’ practice, through the examination of a case study.Footnote 11 This case study relates to conscientious objection – the refusal to engage in a specific activity – to military service. About 40, mostly Western, countries recognize a right to conscientious objection. Yet, most Asian and many African states steadily reject the idea that conscientious objection constitutes a right under international law. It has never been enshrined in any universal human rights treaty, but it is present in two regional instruments in Europe and Latin America, albeit only regarding people under 24 years old in the latter case.Footnote 12
The crux of the problem is that despite the lack of state consensus on the inclusion of such a principle in either the Universal Declaration on Human Rights (UDHR) or in the International Covenant on Civil and Political Rights (ICCPR),Footnote 13 UN organs and the Human Rights Committee (HRCommittee), the ICCPR’s treaty body, affirm that conscientious objection is a right. Indeed, since 1989, the Human Rights Commission (HRCommission), which is the Human Rights Council’s (HRCouncil) predecessor, have affirmed that conscientious objection is a right under both the UDHR and the ICCPR. According to the Office of the High Commissioner for Human Rights (OHCHR), although “not a right per se” (since no legal instrument “make[s] a direct reference” to it), conscientious objection constitutes a “right that is derived from an interpretation” of Articles 18 UDHR and 18 ICCPR on the right to freedom of thought, conscience, and religion.Footnote 14
The HRCommittee has affirmed the same in relation to the ICCPR since its 1993 General Comment 22 (GC22).Footnote 15 The HRCommittee in Yoon et al. v. Korea – a communication which overruled previous HRCommittee communications which deemed conscientious objection was not a protected right – simply noted that this right came from a new “understanding” of Article 18 ICCPR which could evolve “as that of any other guarantee of the Covenant over time”.Footnote 16 What is more, despite scant state support, the HRCommittee began to affirm in 2011 in Jeong et al. v. Korea Footnote 17 that conscientious objection is not only a right (as it had affirmed since 1993), but that it is an absolute right which cannot suffer any derogation as part of an individual’s forum internum. Indeed, as traditionally understood,Footnote 18 the freedom of thought, conscience, and religion as such (forum internum) is absolute and can bear no legal restrictions. By contrast, the freedom to manifest (forum externum) either of such convictions is not absolute and “might be subject to legitimate limitations”.Footnote 19 As Puppinck put it, “forum internum pertains to the being of the person, and forum externum to the person’s doings”.Footnote 20
Despite the HRCommission and HRCommittee’s pronouncements (as will be discussed below), the reading in of conscientious objection into Article 18 ICCPR had been explicitly rejected by states when negotiating the ICCPR and was not contemplated when the UDHR was adopted (by a very limited number of states) in 1948. While many Western states consider conscientious objection a right, this article undertakes to show that its recognition beyond the West is neither widespread nor representative. The pronouncements from UN Organs and the HRCommittee instead appear to be symptomatic of the tendency of human rights bodies to consider any norm in force in the West to be automatically applicable worldwide.
To demonstrate so, this article focuses on the practice of Asian countries, which is of paramount importance. Indeed, Asian practice prominently stands in the way of implying a right to conscientious objection from the ICCPR.Footnote 21 Most countries imposing compulsory military service without providing for conscientious objection exemptions are Asian. In addition, Asian practice should always be considered, since Asia is the world’s largest and most populous region, making it of cardinal importance for the fashioning of international law.
Notwithstanding the importance of this region, the diversity of Asia’s practice in terms of international law does not seem to have been fully factored into the international legal system,Footnote 22 with conscientious objection being only one example. In turn, it must be recalled that Asia is not a monolithic block and is made of multiple civilizations.Footnote 23 For instance, Onuma identified four main civilizations in Asia: Confucian, Buddhist, Islamic, and Hindu.Footnote 24 Nonetheless, Asian countries and civilizations share commonalities, including within international law.
This Western-centrism problem will be addressed in two ways: first (I) by verifying whether conscientious objection is a right under the ICCPR or general PIL. Overall, this article argues that although the notion of freedom of thought, conscience, and religion certainly can evolve, it has not, in fact, evolved to include a right to conscientious objection to military service – however desirable this outcome might be. In turn, the lack of consideration for non-Western practice juxtaposed to human rights bodies’ pronouncements evinces the insufficient factoring in of Asian states’ practice. Second (II), this article exposes the significant shift from the non-recognition of conscientious objection as a right by the HRCommittee to its recent characterization of conscientious objection as a non-derogable right. This part also addresses the underlying material and policy reasons why the HRCommittee might have read in such a right in Article 18 despite the absence of sufficient and converging state practice. Finally (III), the conclusion highlights the importance of working towards the achievement of truly a transcivilizational international law by considering the practice of all civilizations at the time of assessing the scope of PIL.
I. Is conscientious objection a right under international law?
To verify whether conscientious objection is a right under international law, the first section of this part will (A) briefly evince the scope of Article 18 when the ICCPR was signed in 1966, showing there was initially no right to conscientious objection under the ICCPR. The second part (B) will then assess whether sufficient international practice supports an a posteriori “derivation” of such a right.
A. Article 18 ICCPR’s original meaning
To identify Article 18’s original meaning, the following elements need to be factored in: the provision’s ordinary meaning, context, as well as object and purpose. Preparatory works can also shed light on the scope of provisions that remain obscure.Footnote 25
First, as the OHCHR observes, a right to conscientious objection does not appear textually within the ICCPR.Footnote 26 In 1984, the HRCommittee in L.T.K. v. Finland deemed that the “[t]he Covenant does not provide for the right to conscientious objection”.Footnote 27 Second, Article 8(3) ICCPR concerning the prohibition of “forced or compulsory labor” constitutes the most relevant context when assessing whether conscientious objection forms part of the ICCPR. As noted by the HRCommittee in L.T.K. v. Finland, Article 8(3)(c) provides for elements which shall not be considered to be forced or compulsory labour, including “any service of a military character, and, in countries where conscientious objection is recognized, any national service required by law of conscientious objectors”.Footnote 28 This led the HRCommittee in L.T.K. v. Finland to conclude that nothing in the Covenant could “be construed as implying that right”.Footnote 29
Third, the object and purpose must also be considered. However, the ICCPR’s preamble does not flesh out the content of rights, although parties recognize that the rights contained therein “derive from the inherent dignity of the human person”. In addition, the preamble recalls that individuals have duties to others and their community.Footnote 30 This very generic object and purpose does not prima facie support a right to conscientious objection. It might even be the opposite. HRCommittee member Wedgwood, who dissented in Yoon v. Korea, opined that “article 18 does not suggest that a person motivated by religious belief has a protected right to withdraw from the otherwise legitimate requirements of a shared society”, that is, participation in military service which should not be considered differently from obligations towards the community, for example, paying taxes.Footnote 31
Although the above-mentioned interpretation of Article 18 leaves little doubt about the provision’s scope, it is apposite to consider the ICCPR’s drafting history. Indeed, some might still consider the scope of this provision obscure.Footnote 32 In her above-mentioned dissenting opinion in Yoon v. Korea, Wedgwood affirmed that the HRCommittee should have considered the “Covenant’s negotiating history”.Footnote 33
In fact, the ICCPR’s drafting history shows that the parties completely ruled out that conscientious objection, conceived as a right, could form part of Article 18 or any other ICCPR provision.Footnote 34 Although some authors argue that Wedgwood was wrong in saying that conscientious objection had not been “contemplated”,Footnote 35 it is clear the inclusion of the right was not accepted as part of the Covenant.
On the one hand, in April 1950, Meniez (Philippines) proposed to add a reference to conscientious objection in what would become Article 18, that is, that “persons who conscientiously object to war as being contrary to their religion shall be exempt from military service”.Footnote 36 The majority of representatives refused.Footnote 37 Even delegates who “expressed complete sympathy” to the idea, such as the representative of the United States (US), held that the question of military service “was nevertheless outside the scope of article 16” (now Article 18), which also led the representatives of the United Kingdom (UK) and Australia, Bowie and Whitman, to oppose the proposal even though their countries recognized conscientious objection.Footnote 38 In the end, Meniez withdrew his proposal.Footnote 39
On the other hand, the words “in countries where conscientious objection is recognized” were added to Article 8(3) in relation to the prohibition on forced labour which mentioned that military service or national service required by law is not to be considered forced labour. This proposal was made by Cassin (France) to ensure that all governments could ratify the convention. Representatives such as Fontaina (Uruguay), deemed that the question of military service was one “of the defence of the sovereignty of the country”.Footnote 40 Iran and Egypt’s representatives said they would only vote in favour of a provision mentioning conscientious objection if the French amendment was adopted. According to Egypt, the French proposal would not encroach on the rights of states while granting “deference to the legislation of other countries” that recognized such a ground.Footnote 41 Similarly, Chile supported the idea, although it held it would have preferred to omit any reference to conscientious objection.Footnote 42 The Chinese representative noted that very few countries recognized conscientious objection.Footnote 43 Other delegates, like those from the Philippines or Uruguay, noted that this provision was linked to the provision on freedom of thought, conscience, and religion.Footnote 44 Perforce, the French amendment, which aimed to make clear that the reference to a conscientious objector was only relevant in countries recognizing such an exemption ground, was adopted.Footnote 45
In conclusion, an interpretation of Article 18 ICCPR taken in its context, considering the ICCPR’s object and purpose, and drafting history, makes clear that conscientious objection was not envisaged as an implied right. This original understanding has been labelled as the “traditional approach” until the late 1980s.Footnote 46
B. Can conscientious objection be derived from the UDHR or the ICCPR: Asian practice as a limitation on evolutive interpretation
The previous section showed that a right to conscientious objection was not considered part of the original realm of Article 18 ICCPR. The same can be said about the UDHR, which did not contemplate such a right given that military service and conscription were generalized in 1948.
Not all manifestations of one’s beliefs or religion are protected under Article 18 ICCPR; some manifestations fall outside this provision’s scope. Indeed, Article 18(1) ICCPR only protects the freedom to “manifest [one’s] religion or belief in worship, observance, practice, and teaching”, for example, by constructing a place of worship or attending religious service. Not all manifestations will be protected, although the category of “practices” remains broad.
As the HRCommittee noted in J. P. v. Canada, Article 18 ICCPR protects the right to “hold, express and disseminate opinions and convictions, including conscientious objection…”.Footnote 47 Yet, the scope of protected manifestations is not unlimited. In this case, an individual, J.P., partly refused to pay taxes to the Canadian government, which corresponded to the percentage of Canada’s military expenditure. Instead, she gave the resulting amount to a non-governmental organization (NGO). The HRCommittee held that the “refusal to pay taxes on grounds of conscientious objection clearly falls outside the scope of protection of this article”.Footnote 48 This case illustrates that not every act dictated by personal convictions can form part of the protected scope of forum externum under Article 18 ICCPR.
Indeed, virtually anything done to satisfy beliefs or religious commandments could theoretically be deemed to form part of one’s freedoms under Article 18 ICCPR. In principle, nothing distinguishes the obligation to pay taxes to a governmentFootnote 49 from the desire not to participate in military service. One could also imagine a believer refusing to pay interest on a loan, or fundamentalists from many religions (the three main monotheist religions’ sacred books prescribe stoning for a whole array of offences) insisting that based on an originalist interpretation of their sacred book, they have the duty to stone someone and thus manifest their religious observance in that way. The last example might seem far-fetched and is not to be compared with conscientious objection, but it shows that not just anything is protected under Article 18 ICCPR. A contextual reading of the ICCPR enables the interpreter to omit from the protected forum externum any manifestation that would encroach on other protected rights and be unjustifiable under any given circumstances, for example, honour crimes.Footnote 50
In the case of conscientious objection, there is no such contextual bar: refusing to serve in the military for conscientious reasons does not encroach on other protected rights. Conscientious objection could thus eventually form part of protected manifestations under Article 18 ICCPR since nothing bars its meaning from evolving.
Although the HRCommission and the HRCommittee did not clearly explain how they “derived” such a right from the ICCPR from 1989 onwards, the key seems to be subsequent state practice. This is because in GC22, the HRCommittee explained that a “growing number of States have in their laws exempted from compulsory military service citizens who genuinely hold religious or other beliefs that forbid the performance of military service and replaced it with alternative national service”.Footnote 51 Still, the derivation of such a right appears surprising given that two years before, in 1987, the HRCommission merely “appealed” to states to “recognize that conscientious objection to military service should be considered a legitimate exercise” of rights under Articles 18 ICCPR and UDHR.Footnote 52
Legally speaking, the only way to “derive” a right from a treaty,Footnote 53 that is, to identify a “new” understanding, is through evolutive interpretation, which at any rate remains linked to the parties’ intention.Footnote 54 Once terms have been deemed to be of an evolutive nature, a new or evolutionary meaning can be ascribed either via the consideration of subsequent practice,Footnote 55 or through the consideration of other rules of international law applicable between the parties.Footnote 56 In principle, subsequent practice, which is a way in which parties can manifest their agreement to change,Footnote 57 can shed light on both the parties’ original intentions and their current understanding of a treaty.Footnote 58
In both cases, the key element is practice, which can either inform the evolution of the ordinary meaning of terms, for example, what does the word “commerce” encompass or legal concepts, for example, what the territory of a state comprises.Footnote 59 Both subsequent practice and CIL evince sociological changes on the international plane,Footnote 60 which reflect the parties’ agreement.Footnote 61 On the one hand, the word “commerce” in a treaty concluded between Costa Rica and Nicaragua was deemed susceptible to evolution as it was “generic”, while the treaty was made to be “of continuing duration”. In this case, the ordinary meaning of “commerce” evolved to encompass fluvial tourism, including by resorting to the parties’ practice and dictionaries, which, again, aim to reflect linguistically accepted norms. Indeed, the parties had not explicitly rejected the idea that tourism could be part of “commerce”, that is, tourism through fluvial cruises, for the mere reason it did not exist at the time of drafting the treaty.Footnote 62 On the other hand, an expression such as “the territorial status of Greece” was also susceptible to evolution, being generic, and was considered to reflect the corresponding meaning of “territorial status” under general international law at any given time, although it included elements, for example, the continental shelf, that were not yet part of the law when the legal instrument at stake had been drafted.Footnote 63
In any event, evolutive interpretation can only “result from the ordinary process of treaty interpretation”.Footnote 64 As Arato put it “at the very least, the content of evolutive terms should be keyed to subsequent changes in the meaning of those terms as enshrined in international law”.Footnote 65 The HRCommittee and HRCouncil also seem to agree that state practice is an essential ingredient of evolutive interpretation since they referred to the “increasing” or “growing” number of ICCPR parties recognizing conscientious objection in their reasoning.
What is at stake here is the required threshold for treaties to evolve, which is higher when parties initially rejected a given interpretation. Unless there is a subsequent agreement which would enable the parties to overcome the initial refusal to include a given notion within a treaty provision, there cannot be evolutionary interpretation.Footnote 66 As the ICJ put it, there can be “a departure from the original intent on the basis of a tacit agreement between the parties”.Footnote 67 Even in relation to human rights instruments, the European Court of Human Rights (ECtHR), which is known for its frequent recourse to evolutionary interpretations,Footnote 68 relies on such evolution. It takes into account the “near consensus” or the “great majority of the member states of the Council of Europe” to determine whether a treaty provision has evolved,Footnote 69 that is, this human rights court still links its interpretation to state consent. For instance, it ruled that a right to divorce could not be read into a provision on the right to marry based in large part on the fact that this omission to include divorce was deliberate and, therefore, that the ECtHR, absent a change in the “present-day” conditions, could not derive the right to divorce from the applicable provision on marriage.Footnote 70
Again, it is clear that the general framing of the right to freedom of thought, conscience, and religion in light of the ICCPR’s object and purpose, is capable of evolving over time, being generic.Footnote 71 However, the fact that terms are to be interpreted in an evolutionary fashion does not mean that just anything can be read into them. Indeed, evolutionary interpretation must be framed together with state practice largo sensu (including custom), which is the only element capable of evincing social evolution in relation to quasi-universal treaties. Whether a provision is of an evolutive character is only the first step. The second step is to determine whether there has been such an evolution which requires a benchmark. Otherwise, state consent could be voided.
Although it has been argued that subsequent practice could lead to a modification of a treaty,Footnote 72 this article will only address the issue of the impact of subsequent practice on treaty interpretation, as in any event, the outcome would be identical in substance.Footnote 73 As there has been no formal agreement on the question of conscientious objection between ICCPR parties, this section will first (1) deal with the subsequent practice of ICCPR parties, before (2) briefly addressing whether other rules of international law could be relevant. The practice of Asian states will constitute the crux of the analysis since, given their importance, rejection by an important share of Asian countries would prevent any evolution of either the ICCPR or CIL.
1. Is there subsequent practice supporting a derivative right to conscientious objection among ICCPR parties?
First and foremost, it must be recalled that subsequent practice must be shared among all the parties to a treaty to be of relevance.Footnote 74 Contrary practice by only one or a few parties could be sufficient to impede the evolution of a treaty. Special Rapporteur Nolte clarified in his final report on the Draft conclusions on subsequent agreements and subsequent practice in relation to the interpretation of treaties (DCSASPractice) that to be characterized as subsequent practice under Article 31(3) VCLT, an agreement or practice needs to be shared by “all the parties”.Footnote 75 Even an agreement by “almost” all the parties “is not subsequent practice”.Footnote 76 In the 1960s, the International Law Commission (ILC) held that to qualify as relevant subsequent practice, a set of practice had to “embrac[e] all the parties and showing their common understanding of the meaning of the treaty”, which is “analogous to an interpretative agreement”.Footnote 77 A lack of consistency between the parties can indeed “prevent the concretization of the meaning of a rule or term”.Footnote 78 For instance, in the Whaling case, the ICJ deemed that International Whaling Commission’s resolutions adopted without the “support of all states parties to the Conventions”, could not constitute subsequent practice within the meaning of Article 31(3)(a)(b) VCLT.Footnote 79
The practice of parties must be considered holistically.Footnote 80 The principle of consensualism, which is the “cornerstone” of treaties,Footnote 81 keeps playing a paramount role in assessing treaties’ evolution. A minima, the practice at stake must be “concordant, common, and consistent”,Footnote 82 and made with “awareness (belief, fully aware)” of its consequences.Footnote 83 Relevant practice can take any form, for instance, “executive, legislative, judicial or [emanating from] other functions”,Footnote 84 be either effective, that is, acts, or declaratory, that is, statements.Footnote 85 A type of practice that is particularly important relates to whether national laws, including decisions of domestic tribunals,Footnote 86 are in line with alleged international norms.Footnote 87
In the case of multilateral treaties, a practice can be characterized as subsequent practice under Article 31 VCLT when some parties follow it while the other parties remain silent, thus acquiescing.Footnote 88 However, mere silence only constitutes acquiescence when a reaction is warranted under given circumstances.Footnote 89 As the ICJ put it, “silence may also speak, but only if the conduct of the other state calls for a response”.Footnote 90
In relation to Asia, Onuma has noted that silence and acquiescence have “often been used to camouflage the lack of generality” of international practice, which disadvantaged non-Western states.Footnote 91 Caution is necessary, as developing states do not have the same resources as developed states to analyze – and a fortiori to react to – the prolific normative production and reports produced by the international machinery. Considering the unequal reaction capacity of states, documents produced and adopted by intergovernmental bodies or experts must thus be dealt with great care. This is echoed by the DCSASPractice, which holds that expert treaty bodies, such as the HRCommittee, “may give rise” to subsequent practice, while a party’s silence is not to be presumed as an acceptance of treaty bodies’ pronouncements.Footnote 92 In addition, the same stands in relation to resolutions of organs that include a limited number of parties, such as the HRCouncil and its predecessor, the HRCommission.Footnote 93
In light of the preceding explanations, the next subsections will deal with (a) institutional, (b) effective, and (c) declaratory state practice, including before the HRCommittee, as well as (d) Western state practice, vis-à-vis conscientious objection.
(a) Institutional United Nations and ICCPR Practice
The first element of institutional practice to consider is the HRCommission’s 1989 resolution, which recognized a right to conscientious objection under both the UDHR and the ICCPR.Footnote 94 As seen above, the practice of the HRCommission can only be assessed through the prism of supplementary means of interpretation,Footnote 95 since it only had 42 Member States in 1989.Footnote 96 Although the resolution was adopted without a vote, it is a mere aspirational resolution given that in 1989, refusing to participate in military service was illegal in many states sitting at the HRCommission at the time, including the Soviet Union (USSR).Footnote 97 States such as China, Cuba, Ethiopia, Mexico, the USSR, and Yugoslavia “expressed reservations” after the adoption of this resolution, and some countries stated that, had a vote been conducted, they would either have abstained (e.g., China or the USSR), or voted against it (e.g., Iraq).Footnote 98
The second relevant element of institutional practice relates to the practice of the HRCommittee, including GC22, which “derived” a right to conscientious objection from Article 18 ICCPR. The HRCommittee is not composed of states but rather of individual expert members and can only act as a proxy for state consent. The HRCommittee’s set of institutional practice would only be relevant if states had at least tacitly acquiesced.
The only institutional practice that could be characterized as universal and which likely constitutes CIL is United Nations General Assembly Resolution 33/165, which recognized that there is a right to selective objection from serving in an army enforcing an apartheid regime.Footnote 99 Since there have never been statements at least implicitly endorsed by all ICCPR parties or by the United Nations General Assembly on conscientious objection in general, there is no sufficient institutional practice to support that such a right exists either under the ICCPR or CIL.
(b) Effective Asian practice
This section will broach the military service and conscientious objection practice of 18 ICCPR state parties belonging to the UN Asia-Pacific States Group,Footnote 100 which have legislation providing for compulsory military service or its possibility.
East Asia
The Chinese constitution provides for the “honourable duty of citizens of the People’s Republic of China to perform military service in accordance with the law”,Footnote 101 and the Military Service Law of the People’s Republic of China proclaims the “obligation to perform military service” which in principle can be extended to all citizens “regardless of ethnic status, race, occupation, family background, religious belief, and education”. The law provides for some exemptions, for example, for people suffering from serious “physical defects” or “deformities”, as well as other types of exemption, for example, if one is a family’s sole breadwinner.Footnote 102 No exemption ground exists for conscientious objectors.
In North Korea, military service is mandatory for all. It flows from the constitution, which provides that “[n]ational defence is the supreme duty and honour of citizens”, who must “serve in the army as required by law”. There exists no exemption ground.Footnote 103 South Korea, which imposes a mandatory male military service, in turn, has been repeatedly condemned by the HRCommittee for jailing conscientious objectors.Footnote 104 However, South Korea established an alternative service in 2019 following a decision from its Supreme Court and is now one of the only countries in the region to offer such a service.Footnote 105 As the alternative service is comparatively more burdensome (36 rather than 18 months) than the regular military service, NGOs affirm it breaches international standards.Footnote 106 In fact, conscientious objectors initially had to perform alternative service in prison.Footnote 107
South East Asia
Cambodia imposed compulsory military service in 2006. This obligation exists “without distinction as to religious belief” under the Compulsory Military Service Act. It flows from the constitution, which provides for the duty of all citizens to “defend the motherland”.Footnote 108 All citizens between 18 and 30 years old must perform service.Footnote 109 No conscientious objection ground exists.
In Indonesia, the law on the Management of National Resources for National Defense provides for the “right and obligation” of citizens to participate in state defence, which flows from Indonesia’s Constitution.Footnote 110 The state can impose many duties under this law, including civic education, “[c]ompulsory basic military training” or “[s]ervice as a soldier of the Indonesian National Army voluntarily or compulsorily”,Footnote 111 but no exception exists for conscientious objectors when service is imposed.
In Laos, the Law of National Defense Obligations provides for the “obligation to serve in the national defence forces” of men and this “without discrimination in terms of race, ethnic origin, economic and social status, beliefs, educational background, and residence”. This duty flows from the constitution.Footnote 112 This law provides several exemption grounds, such as insanity, a handicap, a serious illness, or being an only child.Footnote 113 Service can be postponed for medical reasons, studies, or prison time.Footnote 114 No exemption ground exists for conscientious objectors.
In Thailand, the Military Service Act provides mandatory military service for drafted men and provides for the equal treatment of all men of Thai nationality.Footnote 115 This obligation flows from the constitution.Footnote 116 Exemption grounds exist for people with certain health problems, who are criminals, who are monks or priests of any religion, and so on.Footnote 117 This law provides no exemption ground for conscientious objectors, who have been jailed.Footnote 118
In Vietnam, the Military Service Law provides for the obligation of men to complete military service when called up, “regardless of ethnicity, faith, religion, education level, occupations or residence”.Footnote 119 This obligation flows from the constitution, which provides for the “sacred duty and the noble right” of citizens to defend their country.Footnote 120 The law specifically prohibits the “evasion of” or the “opposition or obstacle to the performance” of military service.Footnote 121 Although several exemption grounds exist, for example, disability,Footnote 122 no exemption ground exists for conscientious objectors.
West Asia
Iran mandates compulsory military service for all men. This obligation flows from the constitution and no exemption exists for objectors.Footnote 123 Other countries recently reintroduced service. For instance, Kuwait reintroduced mandatory military service through its 2015 National Military Service Act,Footnote 124 after it was abolished in 2001. The country’s constitution states that national defence is a “sacred duty”,Footnote 125 and no exception exists for objectors.
Qatar likewise introduced mandatory military service for men through its Law on National Service in 2014, which flows from its constitution, providing that the defence of the “Homeland is a duty of every citizen”.Footnote 126 Not performing service when called results in consequences such as ineligibility for government jobs or the impossibility of obtaining a business licence. No conscientious objection exemption ground exists, but there exists other grounds, for example, health.Footnote 127
Turkey’s Military Law imposes on male citizens the obligation to perform military service,Footnote 128 which flows from the constitution.Footnote 129 This law grants some exemptions, for example, for medical reasons, or even the possibility of paying a fee (provided quotas are filled).Footnote 130 However, no exemption ground exists for conscientious objectors who are regularly fined despite adverse rulings from the ECtHR.Footnote 131
Central Asia
The Kazakh Military Duty and Military Service Act provides for the obligation of men to participate in military service. This obligation flows from the constitution, which states that the country’s defence is the “sacred duty and responsibility of every citizen”.Footnote 132 Some exceptions exist for members of recognized religious organizations,Footnote 133 for example, Jehovah’s Witnesses (JW), but the law provides no general exemption ground for conscientious objectors.Footnote 134 This possibility is not an individual right but a possibility afforded to recognized religious organizations.
The Kyrgyz framework is similar to the Kazakh one, as there is mandatory military service for men under the Law about General Conscription of Citizens of the Kyrgyz Republic about Military and Alternative Services,Footnote 135 which flows from the constitution providing that citizens have the “right and duty to defend the Motherland”.Footnote 136 Certain exemptions exist for health reasons or marital status, and there is an alternative service for recognized religious groups.Footnote 137 The grounds for religious exemption do not constitute the recognition of an individual right,Footnote 138 and men have been prosecuted for objecting to service.Footnote 139
Mongolia imposes mandatory male military service as laid down in its constitution.Footnote 140 The Law on Military Duty of Mongolian Citizens and the Legal Status of Military Personnel specifies an alternative service for “religious, moral, ethnic and other types of reasons determined by law”.Footnote 141 Yet, the HRCommittee and religious organizations such as the JWs criticize this alternative service, claiming that as it is “placed under the supervision and control of the military”, and that as such, it “cannot be considered as a genuine alternative civilian service of a non-punitive nature”.Footnote 142
There is mandatory male military service in Tajikistan, which flows from the constitution, which states that the country’s defence is the “sacred duty of a citizen”.Footnote 143 Although there are possibilities to escape service, for example, paying a fine,Footnote 144 conscientious objectors cannot avoid service. Likewise, the Turkmen Constitution provides that participating in the country’s defence is the “sacred duty” of all citizens, while military service is mandatory for men.Footnote 145 Although an alternative service law was proposed in 2013, there is no indication that it will formally be adopted.Footnote 146 Objectors have been jailed in the past.Footnote 147
Finally, the Uzbek constitution provides for the obligation to perform male military or alternative service “in the procedure prescribed by law”.Footnote 148 The Uzbek Law on Universal Military Service provides universal military service, although, as in some other Central Asian countries, citizens belonging to “registered religious organizations” can be exempted.Footnote 149 As implemented, the alternative service means serving in the military without bearing weapons.Footnote 150 Therefore, as in Kazakhstan and Kyrgyzstan, there is no explicit legal recognition of a right to conscientious objection, as this possibility is only afforded to members of recognized religious groups.Footnote 151
*
The effective practice of many Asian countries still imposing military service or the possibility thereof already shows there is no converging subsequent practice in relation to conscientious objection. Indeed, a large share of countries who are still imposing military service without providing for a conscientious exemption ground are Asian.Footnote 152 Out of those, none except South Korea and TaiwanFootnote 153 have a genuine alternative service in place for conscientious objectors. Mongolia also offers alternative services, which remain, in essence, military services without an obligation to bear weapons as those services are under the military’s control. Likewise, the service implemented in South Korea remains subject to harsh criticism. Kazakhstan, Kyrgyzstan, and Uzbekistan also offer the possibility to benefit from an exemption for members of recognized religious groups, but this should not be conflated with a recognition of a right to conscientious objection as non-government-authorized beliefs cannot give rise to an exemption.
Although in some cases, conscription is not strictly applied or is by draft (therefore not applying to all men), for example, in China or Thailand, and while some of those countries may provide exemptions for other purposes, for example, studying, being a family’s sole breadwinner, or medical conditions, what matters for the analysis is whether a ground for conscientious objection exists. It must also be noted that other Asian countries, such as Japan, do not impose any military obligations.
Finally, it is important to recall that most domestic laws analysed refer to the importance of treating their citizens equally vis-à-vis the obligation to perform military service regardless of their religion, social status, or beliefs, such as in Cambodia, China, Laos, or Vietnam.
(c) Declaratory Asian state practice
In addition to the above-mentioned effective practice, declaratory practice is also relevant. In 2002, sixteen African and Asian statesFootnote 154 – all parties to the ICCPR except for Myanmar and Singapore – recalled they did not “recognize the universal applicability of conscientious objection, and therefore dissociate[d]” themselves from a 2002 draft HRCommission resolution on conscientious objection. They deemed that allowing such an exemption ground would “compromise the concept of collective responsibility for national defence, undermine national values and breach the principle of equal application of the law”.Footnote 155
Likewise, the lines of defence adduced by states before the HRCommittee are relevant declaratory practice. For instance, Turkey argued that conscientious objection could not be implied from the ICCPR and that those implying such a right were, in fact, committing an “abuse of right”.Footnote 156 While agreeing that the ICCPR could evolve, Turkey held that any interpretation would need to respect the “letter and spirit of the treaty” and the parties’ intention.Footnote 157 According to Turkey, states would need to amend the ICCPR to include protection for conscientious objectors.Footnote 158 Turkey, like other states, insisted on the importance of formal equality between citizens and between rights by reaffirming that the right to freedom of conscience “cannot be valued above the duty of military service” and the principle of non-discrimination laid down in its constitution.Footnote 159
Similarly, in 2012, South Korea, although it recently implemented an alternative civilian service, reiterated it considered the decisions of the HRCommittee which derived a right to conscientious objection from Article 18 ICCPR, to be “erroneous” as states negotiating the ICCPR “had expressed reservations concerning” the inclusion of such a right.Footnote 160 Korea also harshly criticized the HRCommittee since the case Min-Kyu Jeong et al. v. Korea when the HRCommittee started considering that conscientious objection was part of an individual’s forum internum, and thus a non-derogable right.Footnote 161 Korea even affirmed that it regretted that the HRCommittee’s views were not settled when it acceded to ICCPR’s Optional Protocol I in 1990,Footnote 162 which implied that it might not have become a party had this view been known. Korea, like Turkey, insisted on the “demand for equality in military service” among citizens and under its constitution, that is, formal equality among men who all need to perform military service regardless of their personal beliefs and the existence of a “national consensus” on the question.Footnote 163
Likewise, before the HRCommittee, Turkmenistan insisted on the importance of military duty as a “sacred duty of every citizen”, including conscription “for male citizens of Turkmenistan”.Footnote 164 Finally, Kuwait, despite calls from the HRCommitteeFootnote 165 to adopt legislation recognizing conscientious objection, chose to maintain its military service as such. In its third periodic report, Kuwait reiterated that it did not consider conscientious objection a right while insisting on its right to defend itself and on self-determination rights for refusing to allow conscientious objection.Footnote 166
(d) Practice in Europe, other western states, the Americas and Africa
While most countries with mandatory military service do not recognize conscientious objection, there is widespread support for such a right within the West.Footnote 167 In particular, in Europe, the ECtHR began to imply a right to conscientious objection in 2011 in Bayatyan v. Armenia,Footnote 168 as part of one’s forum externum, which enables states to impose restrictions on this implied right, in contradiction with the HRCommittee’s recent approach. In addition, six South American countries have recognized conscientious objection.Footnote 169
Outside of Europe and the Americas, only seven countries have recognized conscientious objection: Angola, Armenia, Cape Verde, Georgia, North Macedonia, the Marshall Islands, and Mozambique.Footnote 170 However, it must be noted that in most countries, that is, 88 countries, including most European and American countries recognizing conscientious objection, no military service is in place.Footnote 171
Moreover, 11 African ICCPR parties have laws providing for compulsory military service without recognizing conscientious objection.Footnote 172 In some countries like Morocco, military service has been re-established as recently as 2019.Footnote 173 In addition, despite some Latin American countries recognizing conscientious objection, the Inter-American Commission on Human Rights noted in 2005 that the Inter-American Convention on Human Rights did not require states to provide for a conscientious objection exemption ground.Footnote 174
Regardless of such converging Western practice, as seen above, the threshold for subsequent practice is virtual unanimity among parties. Although this portrait is not exhaustive, the number of countries included in the analysis suffices to reveal Asian practice, and incidentally African practice, that globally contradicts the pronouncements of the HRCouncil and HRCommittee, which in turn appear to be essentially supported by Western states which for the most part do not impose military service.
2. Is there a customary rule of international law supporting a right to conscientious objection?
Subsequent ICCPR practice is not the only way the ICCPR’s meaning could evolve. In addition, other applicable IL rules between the parties can be factored in to assess whether Article 18 ICCPR now encompasses a right to conscientious objection. The number of ICCPR parties being consequent,Footnote 175 CIL would likely be the only corpus of law applicable in the relations between all parties.
For a CIL norm to arise, unanimity among states is not required, but an international consensus is, that is to say, there must be a large and representative number of states that follow a specific practice.Footnote 176 The ILC, in its conclusions on Identification of Customary International Law recalled that all states need not follow a practice, which rather needs to be “sufficiently widespread and representative as well as consistent”.Footnote 177 Still, an appraisal of state practice must include the interests of specially affected states.Footnote 178 If specially affected states, in casu states imposing military obligations, do not participate in or reject a particular practice, it cannot become general CIL.Footnote 179 Nonetheless, such practice could still give rise to a particular or regional CIL among fewer states.Footnote 180
However, even in cases where the international practice is considered “abundant and consistent”, the ICJ adopted a cautious approach before declaring that such a practice has attained customary status, since corresponding opinio juris must also be established.Footnote 181 The threshold for CIL to exist, although lower than for subsequent practice, thus remains high as opinio juris needs to be evinced alongside practice. For instance, some countries that recently adopted alternative services did so following significant pressure from Western NGOs and religious organizations, such as South Korea, or Kazakhstan, which offer the possibility of an alternative service for members of registered religious organizations. Accordingly, it would be essential to assess whether a party’s practice has been adopted because of the conviction it is the law or rather “for reasons of convenience or expediency”.Footnote 182
In casu, as seen in the previous section, the adverse practice of more than 15 Asian and almost as many African states would suffice to show no rule of CIL has arisen. Still, when assessing CIL, the practice of three non-ICCPR parties is also relevant. For instance, Singapore provides no grounds for conscientious objection under its Enlistment Act.Footnote 183 It unvaryingly held that the HRCouncil’s position on conscientious objection went “beyond what is prescribed in international law and applicable human rights instruments”. It reiterated that national defence is a “fundamental sovereign right under international law” while affirming that protecting its sovereignty is “only viable under the principle of universality … regardless of race or religion”.Footnote 184 This country also spearheaded the 2002 declaration mentioned above,Footnote 185 holding that “allowing individuals to avoid military service or choose alternative forms is unfair to those who serve”.Footnote 186 Likewise, the United Arab Emirates law introduced mandatory military service for all men in 2017,Footnote 187 while Myanmar introduced military service in 2010.Footnote 188 Although exemption grounds exist in those countries, none exists for conscientious objectors.
Considering the practice of more than 20 Asian states – including those that adhered to the 2002 declaration – in addition to states elsewhere, it is clear that, on the one hand, there is no converging subsequent practice, which could lead to an evolution of the ICCPR’s scope. On the other hand, practice is not sufficiently widespread, representative, and consistent to lead to the emergence of CIL.Footnote 189 Indeed, it must be recalled that “[r]esolute opposition to a customary rule by a solid group of States is anathema to the building of general consensus”.Footnote 190
What appears striking about conscientious objection is that although numerous Asian and African countries reject it, it most certainly is a particular Western custom. Indeed, custom need not be restricted to a specific region to be “particular” or even “regional” largo sensu,Footnote 191 i.e., applicable between some like-minded states, in this case Western states.
Against this backdrop, HRCouncil and HRCommittee pronouncements regarding conscientious objection might increase the mistrust and even the defiance of Global South countries against the international human rights machinery while threatening the political viability of the ICCPR. Indeed, a treaty’s political viability “depend on the recognition by the parties that the treaty continues to be the embodiment of their will”.Footnote 192
II. A genealogy of conscientious objection: the radicalization of a concept
This part aims to explain the genealogy of conscientious objection and what might be behind the turn taken by the HRCouncil and HRCommittee, which led them to declare conscientious objection a right despite strenuous opposition beyond the West.
The first (A) section outlines the shift within the HRCommittee from the non-recognition of conscientious objection to an understanding of conscientious objection as a direct emanation of rights (forum internum). The second (B) section discusses how the incremental radicalization of conscientious objection might be attributable to the development of a Western and Anglosphere-likeFootnote 193 conceptualization of human rights, chiefly favouring individuals’ rights over those of the community.
A. The incremental shift from an absence of rights to non-derogable rights
As discussed above, the traditional approach among states recognizing conscientious objection is to consider it a protected manifestation (forum externum) of one’s right. As a reminder, the HRCommittee considered that Article 18 ICCPR excluded conscientious objection until the 1990s.Footnote 194 Then, between 1993 and 2010, it began considering it a protected manifestation (forum externum) under Article 18 ICCPR.Footnote 195 Finally, the HRCommittee adopted an incrementally activist understanding from 2011 onwards, as it not only declared conscientious objection to be a protected right under the ICCPR as in Yoon v. Korea, but since the cases Jeong v. Korea Footnote 196 and Atasoy v. Turkey,Footnote 197 the HRCommittee began to consider conscientious objection to be part of one’s forum internum, making it a non-derogable right.Footnote 198 In fact, the HRCommittee “has fundamentally changed its position with regard to conscientious objection cases over three decades”.Footnote 199
It must also be noted that the shift from externum to internum has been contentious within the HRCommittee itself. On the one hand, this shift toward making conscientious objection a non-derogable right, even in the event of a war, has been advocated for by some HRCommittee members, for instance, Solari-Yrigoyen in Yoon v. Korea or Rodley, Thelin and Flinterman in Atasoy v. Turkey. Footnote 200 On the other hand, some HRCommittee members, such as Wedgwood, opposed the idea that conscientious objection was covered by Article 18.Footnote 201 Others have maintained that a right exists but remains subject to derogations under Article 18(3) ICCPR. For instance, Iwasawa, Neuman, and O’Flaherty held in Jeong v. Korea that the HRCommittee should still examine whether a state adduced sufficient evidence to prove the necessity of a measure restricting conscientious objection.Footnote 202 Likewise, they held in Atasoy v. Turkey that the HRCommittee had not provided “any convincing reason for treating conscientious objection … as if it were an instance of the absolutely protected right to hold a belief”.Footnote 203
At any rate, this shift is surprising given adverse practice in the non-Western world. What is more, within the West, where conscientious objection has been recognized, conscientious objection is mainly conceived as the manifestation of a right (forum externum). For instance, the ECtHR views conscientious objection to military service “as an external manifestation of an individual’s religion or belief”.Footnote 204 Council of Europe Member states can, in principle, restrict conscientious objection by successfully invoking one of the permissible grounds under the European Convention on Human Rights.Footnote 205 In fact, in most Western countries, even in early conscientious objection recognizers, such as Canada and the United States,Footnote 206 the manifestations of religious beliefs can always be limited.Footnote 207 To give a further example, Ukraine, which recognizes conscientious objection in its constitution, decided to outlaw it following the war of aggression launched by Russia in 2022 on account of the need to ensure its national security and independence.Footnote 208
B. A western conception of human rights which overly favours the individual over the community
Considering the above, one wonders what might explain the HRCommittee’s and HRCouncil’s readiness to affirm conscientious objection is now a protected right, nay a non-derogable one? This appears to be attributable, first, to the fact that conscientious objection has been developed in the West and, second, to an increasingly Western understanding of human rights,Footnote 209 and its Americanization – conceived as a Westernization subset – in particular. To explain the increasing disconnect between the HRCommittee, HRCouncil, and state practice, this section extends beyond conscientious objection and relies on a broader framework by referring to the protection of the right to freedom of religion. This analytical framework is particularly relevant. On the one hand, most cases of conscientious objection are based on religious freedom grounds. On the other, the debates between different conceptualizations of human rights often relates to the extent of religious freedom, which appears to be a conceptual benchmark par excellence.
An individual-centric, or individualistic, conceptualization favours individual freedoms and limits the restrictions or measures that can be undertaken by the community while a collective-rights, or democratic, conceptualization gives more leeway to the collective to take measures that have a limiting effect on individual freedoms, in the name of the community’s common good. On the international plane, the Western conceptualization is individual-centric while the Asian conceptualization favours the collective over the individual and insists on the idea that individuals have duties towards their community.Footnote 210 One could also think of Africa, since the African Charter on Human and Peoples’ Rights lays emphasis on the rights of peoples and on the duties of individuals towards society.Footnote 211 Of course, this is a spectrum. Under both conceptualizations, individuals are endowed with rights which can be limited under certain conditions in the name of the common good. This question is one of degree.
Historically, conscientious objection was chiefly developed in the UK and US, especially vis-à-vis QuakersFootnote 212 or Mennonites in the Netherlands.Footnote 213 The bulk of the conscientious objection modern movement started within the Anglosphere.Footnote 214 Then, this idea percolated through the rest of Europe as the danger of war appeared increasingly distant. This change was incremental; for instance, until the end of the Cold War, European states, including socialist ones, maintained a “long-standing tradition of conscription”, a practice largely absent within the Anglosphere.Footnote 215
Notwithstanding, the HRCommittee now portrays conscientious objection as a right which cannot suffer any restriction. This might be explained by the disproportionate influence of the Anglosphere and the ensuing Americanization of human rights, favouring the individual over the collective on the international plane, especially in relation to religious freedoms.Footnote 216 Although US law permits to restrict religious manifestations, the US is likely the country that has the broadest religious freedom protection in the world, including in relation to manifestations. Such a feature of the American conception has been attributed to the “widespread religiosity” in the US, making it “more open to accepting manifestations of religion in the public sphere”.Footnote 217 For instance, the 1993 Religious Freedom Restoration Act imposed a very stringent test for any limitation on religious manifestations to be legal.Footnote 218 The US is also home to a particularly individualistic conception of human rights, which differs in essence from the conception introduced in the ICCPR in the 1960s, which had to be palatable to countries with very different social and economic systems.Footnote 219
Over the past years, an increasingly American understanding of human rights has been gaining ground at the level of human rights bodies.Footnote 220 This incremental shift towards an Anglosphere-like conception of religious freedom, freedom of thought, and human rights might be attributable to the media or human rights defence groups that rely heavily on American law firms and doctrine.Footnote 221
However, as hinted at above, the Western approach is far from universal. In fact, since their independence, Afro-Asian nations have emphasized collective rights and duties, which have been referred to in numerous international instruments, including the ICCPR, whose preamble refers to duties of individuals towards “other individuals and to the community to which” one belongs.Footnote 222 According to Onuma, many in Asia criticize the Western conception of human rights for its “excessive legalism and individual-centrism”Footnote 223 and the fact that often what is perceived as universal is not universal but, in fact, Western.Footnote 224 While the divide between the individual and the collectivity should not be exaggerated (both are intertwined), it remains true that Afro-Asian intellectuals emphasize collective rights more than Westerners do.Footnote 225
Even in the West, the prevalence of an overly individualistic conception of human rights remains relatively recent and debated. For instance, although the European conception of human rights is rather individualistic, it is so to a lesser degree than the Anglosphere’s conception, as the former factors in collective rights and aspirations to a greater extent.Footnote 226 In continental Europe, the notion of citizenship takes precedence over individuals to a greater extent than it does in the English-speaking world. In this more collectivist conception, there can be freedom through state action as a collective tool, while in the American conceptualization, freedom is obtained by constraining the state.Footnote 227 One could think of how human rights are conceived in the French and American legal systems,Footnote 228 which originated in different settings and took different directions as the French system favours a stronger collective-rights approach than the US system.Footnote 229 As regards religious rights in the US, the emphasis is placed on how to “maximiz[e] the rights of religious actors” while the police powers of the state in regulating society will be chief concerns in FranceFootnote 230 and elsewhere as appears from the above-mentioned Asian practice. Indeed, whether it be through their domestic laws or statements before the international human rights machinery, many Asian states insist on the importance of mandatory service for all their citizens regardless of their origin, religion, or beliefs and on the collective dimension of such an obligation, including in relation to self-determination.
In this instance, given the lack of converging subsequent practice beyond, and even within the West (in relation to forum internum), the pronouncements of the HRCouncil and HRCommittee could be explained by the fact that their members adopted a more individualistic perspective on human rights which is prevalent within the West and the Anglosphere in particular. As such, considering conscientious objection a protected right at the international level seems to be an example of Western copy-pasting, that is, considering that a Western reality is universal.Footnote 231
The fact that individual-centrism and rights absolutismFootnote 232 are increasingly influential on the international plane is worrying, since these conceptions have been rejected not only by many Afro-Asian nations, whose perspective puts greater emphasis on the community, but also by many peoples within the Western world.
III. Conclusion: a call for a truly transcivilizational international law
As seen above, the HRCommittee and UN organs started affirming conscientious objection could be read into the ICCPR as early as 1989 in the case of the HRCommission and 1993 in the case of the HRCommittee. However, the first part (I) of this article showed that such an affirmation was not in line with contemporary international law. The second (II) dealt with the radicalization of HRCouncil and HRCommittee’s understanding of conscientious objection and endeavoured to explain what might be the reason they arrived at this understanding.
The first section of part I showed that Article 18 ICCPR’s original meaning did not encompass conscientious objection as a protected right, including by analyzing the ICCPR’s preparatory works. The second section concluded that Article 18 ICCPR, and incidentally Article 18 UDHR, could in principle evolve to encompass conscientious objection. However, for this conclusion to be warranted, sufficient practice would be needed to evince a societal consensus among the community of nations. This section thus analysed whether there was such consensus either in the form of subsequent practice under Article 31(3)(b) VCLT or in the form of customary international law under Article 31(3)(c) VCLT.
In relation to subsequent practice, the institutional practice of the HRCommission, HRCouncil, and HRCommittee was first analyzed to show that these organs and bodies’ pronouncements do not constitute relevant subsequent practice given their limited membership or character as expert-bodies. Then, an analysis of effective state practice showed that more than 15 Asian states providing for military service de jure offer no exemptions on grounds of conscientious objection, ignoring calls from UN organs and ICCPR treaty bodies. In addition, the declaratory practice of such states matches their effective practice, including in relations to statements made before the HRCommittee. This adverse or contrary Asian practice is highly relevant as it is stable and consistent among specially affected states, that is, states that de jure provide for mandatory military service or the possibility thereof. In addition, many states have re-established military service in the past few years while not providing for a conscientious objection exemption ground or alternative service, showing there is no international consensus on this topical question. In addition, ICCPR parties, such as Turkey, are especially active in their opposition and take the time to – sometimes they are forced to do so – explain before those same bodies why they do not afford their population the opportunity to benefit from a conscientious objection exemption ground. The rationale offered by many Asian countries broadly refers to the importance of self-determination, collective interests, and non-discrimination, that is to say, there should be formal equality between citizens and no differentiated treatment for religious minorities in relation to compulsory service. Finally, this section addressed the practice of states beyond Asia, which evinced that the only civilization or region largo sensu which has embraced conscientious objection is the West. In fine, the sum of these practice sets demonstrates there is no converging subsequent practice that would meet Article 31 VCLT’s threshold.
Then, this section addressed whether the ICCPR and UDHR have evolved through the emergence of new CIL. Against the backdrop of the above data, there is neither general practice nor opinio juris supporting a customary right to conscientious objection. In turn, a brief analysis of state practice beyond ICCPR parties, for example, Singapore, reinforced this conclusion. In total, more than 30 specially affected states oppose conscientious objection. However, a right to conscientious objection to military service appears to have attained the status of a particular custom within the West given the converging practice among Western states.
Factoring in the practice of Asian countries is of paramount importance on two grounds. On the one hand, Asia is one of the world’s great civilizations, which must be subdivided into many sub-civilizations (as is the case in the West).Footnote 233 There cannot be CIL without converging Asian practice, especially if one adopts a perspective that considers the practice of countries with large populations carries significant weight.Footnote 234 In addition, among specially interested states which maintain de jure obligations to participate in mandatory military service, Asia is overrepresented.
The article’s second part (II) addressed the material reasons that might explain why the interpretations of the HRCommission, HRCouncil and HRCommittee have been increasingly radical. This part’s first section started by explaining the successive shifts within the HRCommittee which can be summarized as follows: there was no right to conscientious objection (1976–93), a right was deemed to exist (1993–2011), a right exists and is non-derogable (2011–now). Indeed, since 2011, the HRCommittee adopted an absolutist interpretation of human rights in relation to conscientious objection, which translates into considering conscientious objection as a right indissociable with individuals’ forum internum and thus not subject to derogation.
The second section of this part endeavoured to explain the material reasons for this shift against the backdrop of largely adverse non-Western practice. The radical nature of these organs and bodies’ interpretations appear to be attributable to the increased influence of Western, and in particular Anglosphere-like conceptualizations of human rights. On the one hand, the fact that the HRCommittee affirmed conscientious objection derives from the ICCPR despite adverse practice appears to be attributable to its Western-centrism. On the other hand, when adopting a more stringent understanding of conscientious objection by making it non-derogable, the HRCommittee adopted an utterly individualist understanding of human rights prevalent within the West and in the Anglosphere in particular.
This shift is especially worrying given that even within the Anglosphere, which has extremely high protection standards, conscientious objection remains a derogable right. In turn, this account shows the extent of the HRCommittee’s absolutist conceptualization of the freedom of thought, conscience, and religion. This interpretation is unsubstantiated and appears to be attributable to the tendency to equate what is Western with what is universal.Footnote 235 Indeed, this absolutist reading ignores the practice of most countries whose perspectives and conceptions differ, e.g., continental European countries and Asian countries, which, to varying degrees, favour collective rights over individual rights to a greater extent than the Anglosphere’s countries. For instance, in justifying compulsory military service, most Asian states insisted on the importance of treating their citizens equally and on the duties of individuals towards collectivity.
Absolutist readings endanger human rights as they might lower global adherence to the human rights regime and erode their protection.Footnote 236 The international human rights protection system should be international and reflect global realities. As such, the world should resist a steadily increasing Western and Anglosphere-borne understanding of human rights,Footnote 237 not because the Anglosphere’s conceptualization is inherently flawed, but because it is not representative.
*
In sum, international law must truly be international, and even transcivilizational or multi-civilizational, as Onuma and Chimni respectively put it.Footnote 238 One way to ensure this outcome is to apply the customary rules of interpretation reflected in Articles 31–3 VCLT and the ILC’s methodology on CIL identification. In fact, a transcivilizational outcome will naturally be achieved if said rules are respected, as it would be impossible for a norm to become customary if there is strong opposition in one of the world’s civilizational areas while the high VCLT subsequent practice threshold protects all state parties to a given treaty.
As such, to correctly interpret the ICCPR and the UDHR, one must adopt a transcivilizational interpretation of human rights, which “assumes the plural existence of value systems and views of humans, and seeks to integrate these differences in a discursive and dialectical manner” while avoiding “absolutism or fetichism of human rights” which would weaken their “normative nature”.Footnote 239 The identification of “social ethics transcending civilizational boundaries”Footnote 240 must be achieved, which is akin to identifying a societal consensus on the international plane. This is essential when interpreting quasi-universal instruments and when seeking to identify CIL, including in matters relating to conscientious objection. Accordingly, the ICCPR must be interpreted holistically, and this includes considering the notion of duties and the right of people to self-determination, which many states have referred to in relation to conscientious objection, that is, the right to defend themselves, ensure their national security and to choose their own cultural, economic, political, and social system, as per Article 1 ICCPR.
This article showed that some interpretations of human rights treaties and CIL are flawed since they fail to factor in the practice of (enough) states and peoples in Asia and beyond. To avoid such flaws, particular attention should be paid to the practice of “non-Western cultures and civilizations” most of which have been “excluded from the prevalent North-Atlantic-centric [legal] discursive space” to fill the “legitimacy deficit in international law”.Footnote 241 This deficit is attributable to the preponderance of Western practice in the historical development of international law. In particular, Western lawyers should be careful not to “tacitly equate what is Western with what is universal”.Footnote 242 One must learn to accept that Western norms are not always universal and may rather reflect a particular custom. The international community must be careful not to widen the “gap” between non-Western practice and general international law.Footnote 243
As such, PIL norms “with a universal validity must satisfy the highest degree of legitimacy in order to be accepted by all members of the international society, including non-state actors as well as various actors with diverse cultures and civilizations”.Footnote 244 This legitimacy must not only be “international” but also “transcivilizational” or “multi-civilizational” to reflect the distinct contribution of all civilizations.Footnote 245 However, this quest for a transcivilizational PIL, which would enjoy heightened legitimacy, should not lead to adopting views that would reverse the current situation by adopting perspectives unduly favourable to other civilizations. The aim is to attain a representative system rather than moving from Western-centrism to Sinocentrism or Islamocentrism, for instance.Footnote 246
Although refusing to read conscientious objection into the ICCPR might be seen as backtracking, it is important to recall that correctly assessing the obligations of states under international law should, in fact, not be considered backtracking but rather as a first step towards a fairer international legal system. Correctly assessing human rights lex lata by taking into account the practice of the non-Western world will increase the legitimacy of human rights, which are often seen as Western inventions and face harsh criticism in the developing world and beyond.
In turn, a more representative international law would foster the adhesion of new countries. Indeed, if human rights bodies were to adopt a transcivilizational perspective, this might lead to more states ratifying human rights instruments such as the ICCPR (about 25 states are not parties), for example, Singapore, which staunchly rejects what it considers to be misguided activism from the HRCommittee. In addition, Asia is the region where the fewest ICCPR parties joined the ICCPR optional protocol I (HRCommittee’s mandatory jurisdiction), which is no coincidence.Footnote 247 Worse still, among the few Asian states that adhered to this protocol, Korea indirectly held that it regretted adhering to this protocol, given the new views of the HRCommittee on conscientious objection.Footnote 248 As ICJ Judge Nolte put it, interpreters may contribute to the “decline” of treaties by applying them “in a way which provokes resistance, or which makes parties, or others, lose their identification with the treaty”, which is not a mere possibility in the case of human rights treaties.Footnote 249 A transcivilizational approach would have the advantage of decreasing such resistance and even further adherence to human rights norms.
This analysis also demonstrated the importance of respecting fundamental principles of PIL, such as pacta sunt servanda. Caution is essential when interpreting a treaty, which represents what the contracting parties collectively agreed upon. Treaties are the purest expression of states’ consent, which should not be bypassed. At any rate, jumping to conclusions on the existence of converging subsequent practice or CIL can be a double-edged sword as developed states produce the bulk of international practice since they are endowed with sufficient capacity to react and express their positions in multiple fora. Yet, developing nations often do not match this capacity to react, which disadvantages them in relation to subsequent practice and CIL development. Indeed, formerly colonized states paid a high price to maintain or acquire sovereignty, and the intention they embody in treaties should be ascertained rather than escaped.
One must also acknowledge that it is inherently difficult for academics or even NGOs to access non-Western practice, as sources are often only available in foreign languages or unavailable online.Footnote 250 Yet, international judicial and quasi-judicial bodies do not have such an excuse. Given their resources, they must analyse state practice beyond the confines of the West.
The importance of factoring in the practice of states, including non-Western states, is not to be understood as weakening the principle of pacta sunt servanda; it is quite the opposite. For instance, signing a treaty is a means of expressing consent in undertaking obligations that cannot be diminished just because some states – or even many – stopped respecting their commitments. One could think of Article 25(2) ICCPR on the right of individuals to “vote and to be elected at genuine periodic elections”. Although many ICCPR parties fail to respect this obligation, they consented to it and cannot rely on their subsequent practice to challenge this right’s existence as the parties directly laid it down in the treaty.
Finally, the author wishes to make clear he believes, as most do in Western countries (and many others elsewhere), that conscientious objection should be a right afforded to all individuals as a protected manifestation. Even though there is practice making a right to conscientious objection a de lege ferenda proposal at the international level, this practice would need to be general, that is, extend beyond the West. Again, what one deems desirable should not automatically be conflated with positive law, and neither should what is Western automatically be considered universal. The work of many organs and bodies promoting conscientious objection needs to be commended, but their approach should be incentivizing, as it was until the late 1980s, rather than directive – at least in terms of international law – until an international consensus has emerged on the question.
Acknowledgments
The author wishes to thank Pascal Blickle and Allison Pierok for their kind help and support and expresses his gratitude to Samantha Besson for her helpful comments on the occasion of the Re.Inst Seminar held under the auspices of her research chair at the Collège de France. In addition, the author wishes to thank Professors Gerald L. Neuman and Idriss Fofana who, while having different perspectives from his, generously took the time to discuss this topic during the author’s research stay at Harvard Law School. These intellectual debates certainly helped in writing an article on such a delicate topic while keeping in mind other views. Finally, the author wishes to acknowledge the work of the Asian Law Institute as the ideas contained in this article were initially discussed in Bangkok on the occasion of the twenty-first ASLI Annual Conference. The positions expressed in this article are those of the author only.
Funding statement
This research has been funded through the Doc.CH Grant of the Swiss National Science Foundation.
Competing interests
The author declares no competing interests.
André-Philippe Ouellet is a PhD Candidate at the Geneva Graduate Institute (Global Governance Centre), Swiss National Science Foundation Doc.Ch Researcher, and Doctoral Fellow of the Social Sciences and Humanities Research Council of Canada.
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