Tilburg University Nationality, Military Duty & Human Rights

Tilburg University

Humanities Faculty

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Nationality, Military Duty & Human Rights

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Thesis Submitted in Partial Fulfillment of the Requirements for the Degree: Liberal Arts and Sciences – Law in Europe

Author: Supervisor: Ara Abrahamian Caia Vlieks ANR: 162276

January, 2017

Acknowledgements

In between choosing the subject of my bachelor's thesis and writing these words marking the completion of this paper, I received my first passport at the age of 22. This inquiry into the nature of nationality and the role of military duty originated from personal circumstances and gradually transformed into an academic interest.

First I would like to thank Caia Vlieks, for supervising my bachelor thesis and for her patience in guiding me from my initial ideations to the conclusion of this paper.

I would also like to thank Katja Swider for helping me navigate the Dutch naturalizations laws, and for kindly advising me through the long process that was acquiring the Dutch Nationality.

Finally I would like to thank Tilburg University for hosting the Statelessness Program, and for including a course on nationality law in the Liberal Arts and Sciences Law Major curriculum.

Table of Contents

Chapter 1: Introduction …………………………………………………………………………. 3

Chapter 2: National Duties & Conscription …………………………………………………… 6 2.1 Nationality & Duties ………………………………………………………………………….. 6 2.2 The Duty of Allegiance ……………………………………………………………………….. 7 2.3 Military Duty ………………………………………………………………………………….. 8 2.3.1 From Military Duty to Conscription ………………………………………………….... 9 2.3.2 Present-day Conscription ………………………………………………………………10 2.3.3 Conscription Laws ……………………………………………………………………. 11 2.4 Conclusion ……………………………………………………………………………………13

Chapter 3: Understanding the Status of Conscription under International Law ………….. 14 3.1 The Right to Conscript ………………………………………………………………………. 15 3.2 Conscription & International Human Right Standards ……………………………………… 16 3.3 The Right to Conscientious Objection ………………………………………………………. 18 3.4 Conclusion ………………………………………………………………………………...…. 21

Chapter 4: Conscription and the Access to Rights …………………………………………... 22 4.1 Nationality and Rights ………………………………………………………………………. 22 4.2 Allegiance and Rights ……………………………………………………………………….. 23 4.3 The Right to Change One’s Nationality ……………………………………………………... 24 4.4 The Right to Leave One’s State ……………………………………………………………... 25 4.5 Military Duty and the Access to Civil and Political Rights …………………………………. 28 4.6 Conclusion ……………………………………………………………………………...... 30

Chapter 5: Discussion ………………………………………………………………………….. 31 Chapter 6: Conclusion …………………………………………………………………………. 34 Reference List …………………………………………………………………………………... 35

Chapter 1: Introduction

The thousands of Eritreans fleeing their state in recent years have added to the worldwide refugee crisis.1 Rather than fleeing war, Eritreans hope to escape the regime that conscripts its nationals into a national service widely reported to be indefinite.2 As a result of these conscription practices, the countless Eritreans serving indefinitely, those detained and maltreated for national service evasion, as well as those desperately fleeing their country of origin have been greatly burdened by the substance of their nationality. Whereas nationality is customarily discussed in relation to protection, as an instrument to access and enjoy human rights, for these Eritreans their nationality is characterised by vulnerability rather than protection. Nationality establishes a bond of inclusion through which rights and duties are assigned to those that hold membership to the state. One’s nationality allows them to access essential rights, such as the right to reside on the state’s territory, a right of diplomatic protection, along with a number of social and political rights that allow members to prosper within their community.3 Exclusion, epitomized by statelessness, leaves individuals and groups marginalized without the access or enjoyment of such indispensable rights, and particularly vulnerable to forced migration. The introductory example suggests that the framework of nationality, through excessive obligation and the enforcement of duties, can constitute grounds for severe human rights violations by means of inclusion rather than exclusion. It is therefore essential to also explore the nature of nationality from the perspective of duties and demands of allegiance. The creation of refugees as a consequence of conscription laws introduces a distinctly international character to the human rights violations emerging from conscription practices. Refworld illustrates the large number of inquiries made by refugee boards & tribunals into the nature of the conscription practices of various states. Furthermore considering the recency of the escalating situation in Eritrea, as well as the reality of states such as Ukraine reinstating conscription, emphases the relevancy of conscription laws for the current discourse on international human rights law.

1 Humphris, R., UNHCR: Refugees and the Rashaida: human smuggling and trafficking from Eritrea to Sudan and Egypt, March 2013 2 Human Rights Council, Detailed Finding of the Commission of Inquiry on Human Rights in Eritrea, 8 June 2016 http://www.ohchr.org/Documents/HRBodies/HRCouncil/CoIEritrea/A_HRC_32_CRP.1_read-only.pdf (retrieved november 2016) 3 Edwards, A., Van Waas, L., Nationality and Statelessness under International Law, 2014, p. 40

Research Approach Identifying possible human rights violations as a function of the national duty of military service, invites questions on:

● The obligation of military duty, imposed by the bond of nationality, and how it pertains to the enjoyment of rights attached to one’s nationality. As well as; ● The status of conscription under international law, particularly as it pertains to the application and advancement of international human rights.

Thus, we shall attempt to explore this relation between nationality, military duty and human rights as established under international law. Research will be drawn from domestic and international laws, scholarly articles, and reports of conscription practices. The research question of the thesis will be as follows:

What are the effects of conscription laws, as a duty placed upon nationals, on the access to human rights under international law?

In order to to answer our research question, the study will be divided into chapters answering corresponding sub-questions. Namely, in the first section we’ll seek to establish the character of military service as a national duty, by considering duties within the reciprocal and inclusionary nature of nationality. Subsequently we’ll consider the nature and substance of conscription by examining: the tradition and necessity of imposing military duty; the prevalence of modern conscription; and finally the substance of conscription laws. Subquestion 1: What is the relation between conscription and nationality?

In the subsequent section we’ll consider the status of conscription under international law, particularly as it pertains to human rights standards. We’ll study the right of states to impose conscription on subjects in relation to the spirit of international human rights as established by the Universal Declaration of Human Rights. We’ll conclude this section by considering the application of the right to conscientious objection in the context of conscription laws. Subquestion 2: What is the status of conscription under international law?

Finally with the information of the previous chapter we’ll turn to the relation between military duty and the rights accessed through one’s nationally. After identifying the rights attached to nationality, as prescribed by international laws, we’ll considers cases of the restricted access to these rights as a result of: I. the outstanding status of one’s military duty; II. the failure and refusal to complete one’s military duty. Subquestion 3: How do conscription laws interact with the rights attached to nationality?

Chapter 2: National Duties and Conscription

Introduction Nationality encompasses a relation between a state and the individual, whereby the state grants nationals rights as well as imposing obligations upon them.4 Nationality essentially constitutes one’s membership to a state. Traditionally nationality is acquired at birth through the doctrines of: ● Jus soli - by virtue of being born in that state’s territory; ● Jus sanguinis - by virtue of the parents’ nationality.5 Additionally, naturalization procedures allow for the acquisition of nationality later in life, provided that applicants meet the respective states’ criteria. The inclusionary nature of nationality establishes a degree of reciprocity, which is realized through the rights and duties placed on the state and national respectively.6 While the discourse on nationality predominantly explores the rights attached to nationality, national duties are a significant and rather underexplored component of nationality. For the purpose of this paper, the terms nationality and citizenship will be regarded as interchangeable, whereby citizenship focuses on the domestic dimension of the relationship between the state and the individual, accordingly the term nationality will embody the international dimension of this same relation.7

2.1 Nationality & Duties First a distinction should be made between duties legally enforced upon nationals versus suggestive and moral duties commonly found in constitutions. For the purpose of this paper national duties will constitute the former, meaning substantially codified duties with distinct legal consequences. Universal duties, such as abiding by the laws of the land or the obligation to pay taxes, while arising from domestic laws, are often not of a national character. As these duties tend co-equally extend to non-nationals, whilst they reside within the borders of a state.8

4 Edwards, A., Van Waas, L., Nationality and Statelessness under International Law, 2014, p. 11 5 Van Waas, L., Nationality Matters: Statelessness under International Law, 2008, p 31 6 ‘Nationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interest and sentiments, togetherness with the reciprocal rights and duties.’’ - Nottebohm Case (Liechtenstein v Guatemala), International Court of Justice (ICJ), 6 April 1955, page 4 7 Edwards, A., Van Waas, L., Nationality and Statelessness under International Law, 2014, p. 14 8 Spiro, P., Dual Citizenship as a Human Right, 2010, p 118

National duties nowadays typically obligate citizens to facilitate collectively enjoyed national systems and services. The substance of national duties will therefore vary between states based on their respective traditions and practices. For instance, certain democratic states have instituted voting as a national duty in order to enforce participation in the shaping of national policies.9 Similarly jury duty, an element of the United States justice system, obligates nationals to partake in administration of justice. Military duty, possibly the most prominent national duty, obligates nationals to contribute to the defense of the state by serving in the state’s army for a designated period. Thus, by virtue of national duties, members of the state are vested with the responsibility to aid in the security and prosperity of the state. Although nationality ideally functions as a balanced reciprocal bond, the acquisition of nationality usually happens at birth, meaning that the commitment to this bond and adoption of duties is typically involuntary. One’s nationality carries the implicit duty of allegiance, a duty of loyalty and obedience. The demand of allegiance is generally justified as a debt of gratitude, as members of the state have typically been under the protection of the sovereign from birth.10 National duties can however be experienced as unequitable and burdensome, leading to insurrection or other transgressions of allegiance. It is necessary to first explore this duty of allegiance, to better understand the inception of duties and their binding nature.

2.2 The Duty of Allegiance Allegiance is an ubiquitous concept in the relation between subject and sovereign. The duty of allegiance comes in different forms, yet always signifies inclusion and commitment. A particularly explicit form of allegiance is that of feudal allegiance. In medieval Europe, a promise of allegiance served as the base of feudalism, where one would enter as subject, termed vassal, into a permanent reciprocal bond with a lord. In exchange for land, protection and accompanying privileges, the vassal would be obligated to provide military service, court duties and taxes.11 Military service is the principal duty of the vassal, as mutual protection was typically the primary

9 While in most democratic societies voting is considered a right, certain states have in fact installed the obligation to vote as a national duty with sanctions for those who fail to comply. - For more see: S., Birch, Full Participation – A Comparative Study of Compulsory Voting, 2009 10 Blackstone, W., Commentaries 1: Rights of Persons, p 370 11 Goucher, C., LeGuin, C., Walton, L., In the Balance: Themes in Global History (Boston: McGraw-Hill, 1998), Chapter 7, “Ties that Bind: Lineage, Clientage, and Caste.”

motivator for the inclusionary bond. This feudal bond of allegiance rather resembles nationality, with duties that largely correspond with contemporary national duties.

Allegiance, as a principle embodying both inclusion and commitment becomes complicated in cases of dual nationalities. Individuals possessing dual nationalities owe dual allegiance and are bound to duplicate duties. All throughout history, states would contend over the enforcement of their imposed duties in cases of dual nationalities, particularly for the performance of military duty.12 Those acquiring a new nationality or holding dual nationalities may therefore seek to shed their former nationality to relinquish any burdensome duplicate duties. Under the now archaic tradition of permanent allegiance however, sovereigns would refuse to recognize the renunciation of their nationality. For instance, under the British doctrine of ‘perpetual allegiance’ citizenship was granted at birth and could not be renounced. This approach precipitated the impressment of British born Americans that in part caused the War of 1812. The invariable nature of one’s affiliations, particularly for one’s duties, is grounded in notions of indebtment. In modern times attitudes towards dual nationalities have relaxed and states commonly establish agreements on exemptions from dual obligations through bi- and unilateral treaties.13 Such exemptions are typically based on the criteria of residence.14 Similarly notions of enduring allegiance and indebtedness have diminished, permanent allegiance is now regarded to be an archaic concept. In light of the rise of human rights individuals are protected against excessive demands of allegiance, namely by their right to leave one’s state as well as the right to change one’s nationality.15 These advancements have precipitated a more compromised bond of allegiance and, to that same extent, nationality. Allegiance has become a predominantly implicit and passive duty, namely the duty to not betray or act against one’s state.16 Violation of one’s duty of allegiance can lead to the deprivation of nationality, with the act of serving in another state's military being one of the last acts that can

12 Legomsky, S., Dual Nationality and Military Service: Strategy Number Two, 2000, p.19 13 Spiro, P., Dual Citizenship as a Human Right, 2010, p 117-118 14 For instance, the 1930 Protocol Relating to Military Obligations in Certain Cases of Double Nationality establishing: ‘Article 1. A person possessing two or more nationalities who habitually resides in one of the countries whose nationality he possesses, and who is in fact most closely connected with that country, shall be exempt from all military obligations in the other country or countries’ 15 Under international human rights law these are considered fundamental rights and represented in article 13 and 15 of The Universal Declaration of Human rights. 16 Citizenship ceremonies, for the registration of citizens and as conclusion to naturalization procedures, do typically require a declaration of allegiance to the respective state. For example: in the United Kingdom this a pledge of allegiance under oath is required - British Nationality Act 1981 Schedule 5

legally result in statelessness.1718 The right of states to deprive subjects of their nationality in cases of a violated duty of allegiance is covered in Article 8.3 of the Convention on the Reduction of Statelessness.19 One’s duty of allegiance is thus consequential for one’s right to nationality. In a later chapter the interaction between allegiance and the access to rights will be further considered. Having understood the role of allegiance for the inclusionary nature of nationality, let us consider the foundation and structure of military service as a national duty.

2.3 Military Duty Military duty constitutes the obligation to aid in the defense of the state, whereas conscription means the enlistment and call up for national duty through which military duty is enforced. While the term conscription is increasingly identified with the duty of military duty, it was customary for sovereigns to conscript labourers as well. For the purpose of this paper, conscription implies service of a military character.

2.3.1: Military Duty to Conscription The duty of military service is ancient.20 Throughout history sovereigns have, in various forms, imposed the obligation of military service on their subjects. In the face of existential threats conscription ensures that every family contributes to the defense and continuance of the nation. Conscription thereby allows for the creation of large military forces without budgetary limitations. At its very core, the reality of conscription is comprised of two simple elements, namely: i. The necessity of forces; ii: The capability of sovereigns to impose and enforce obligations on their subjects. Nevertheless the essence of conscription typically extends past mere necessity and coercion. In the case of feudal allegiance military duty pursued the objective of mutual protection, in a national context military duty is also typically instilled with symbolic value. The symbolic value of military duty rationalizes the burden of such a invasive duty as is particularly well presented in the example of French universal conscription. With the Jourdan Law of 1798, enacted during the

17 For example: the Austrian Nationality Act states that a national who voluntarily serves in the military of a foreign state shall lose the Austrian nationality. - Federal Law concerning the Austrian Nationality, Nationality Act, 1985, Art 32 18 Van Waas, L., Nationality Matters: Statelessness under International Law, 2008, p. 83 19 UN General Assembly, Convention on the Reduction of Statelessness, 30 August 1961, Article 8.3 20 In the third millennium B.C.E the Babylonian Empire had already established military and public services for subjects - Postgate, J.N. (1992). Early Mesopotamia Society and Economy at the Dawn of History. Routledge. p. 242.

French Revolution, France introduced universal conscription as a condition for citizenship. 21 Conscription would serve as an instrument to combat anti-revolutionary forces and to ensure the sustenance of the newly created republic. The rationale was the following: French citizens had acquired new rights as a result of the revolution. France had become a nation of citizens, a free and equal community, therefore the defense of the Republic was to become a duty of all citizens.22 Conscription, realized as such, has been an important element in forming a national identity. In the

th th 19 and 20 century military duty additionally served as an instrument to 'make Frenchmen' out of those residing on French soil and wishing to become French nationals.23 Compulsory military service can therefore further occupy a position as a 'school of the nation', instilling patriotism as well as additional values and skills complementing those acquired in the traditional school system. 24 French universal conscription was later abolished until reinstated once again in 1905 in anticipation of large scale conflict.25 Necessity remains the invariable basis for conscription. The anticipation of hostilities has been a prime motivator for enforcing military duty throughout history to present-day. Let us therefore consider the current status of conscription.

2.3.2 Present-day Conscription Today there is less conscription than ever.26 The increase in secure communities and collective security has for many states decreased the need for large armies and a military trained populace. Since the second half of the 20th century many states have abolished mandatory military service, switching to volunteer and professional armies. Today there are only around 70 states that still possess mandatory conscription laws.27 However the presence of conscription laws does not necessarily translate to the involuntary drafting of nationals, as certain states have predetermined quotas of required recruits, which are at times exclusively accommodated by volunteers. Such measures allow for modest armies during peacetime, while reserving the ability to enforce mass conscription when necessitated. Similarly, of the states that have abolished military duty, many

21 The law would state: Every Frenchman is a soldier, and the defense of his country is his duty. 22Blanning, T.C.W (1996). The French Revolutionary Wars 1787-1802. New York: St. Martin's Press. p.83 23 Weis, P., Nationality and Statelessness in International Law, 1979, p. 143 24 John Keegan (1979). World Armies. p. 219–220 25 Geva, D., Conscription, Family, and the Modern State: A Comparative Study of France and the United States, 2013, p. 71-72 26 Hall, J., Tarabar, D., Explaining the Worldwide Decline in Military Conscription: 1970- 2010 27 https://www.cia.gov/library/publications/the-world-factbook/fields/2024.html

have maintained laws and registration procedures enabling them to enforce conscription in cases of national emergency. 28 This fundamental relation between national security and conscription was recently highlighted by developments in the Eastern Europe, where both Lithuania and Ukraine chose to reinstate conscription in response to annexation of Crimea by Russia in 2014.29 States with a recent history of armed conflict are inclined to enforce conscription, particularly where tensions subsist with neighbouring states, such as continued border disputes. As conscription both facilitates a strong standing army as well provides a trained populace in case of national emergency. We should note, while the principle purpose of the military concerns defense of the state and its citizens, that national armies can be assigned to fulfill economic and political purposes as well. For, instance, the Turkish military is also regarded as the guardian of state secularism.30 Thus, the presence of conscription laws as well as the enforcement is rooted in a nation's history and geopolitical environment. We’ll conclude this chapter on national duties and nature of military duty by considering the substance of conscription laws.

2.3.3 Conscription Laws For military duty to be justified, it is required for it to be prescribed by law. Conscription laws allow procedures to be challengeable in court, producing legitimacy by preventing arbitrary or wrongful recruitment. Conscriptions laws establish the obligation of military duty and customarily include provisions on: ● Who’s liable for mandatory military service; ● The duration and the substance of the service; ● Practical proceedings regarding enlistment and call up; ● Conscript rights and benefits; ● Relevant authorities and their competences; ● Who’s exempted from service; ● Penalties for draft evasion.

28 The USA, for instance, utilizes its Selective Service System to register all males reaching the age of 18 to 'furnish manpower to the Defense Department during a state of national emergency'. - Proclamation 4771 - Registration rd Under the Military Selective Service Act - https://www.sss.gov – accessed on the 23 of May 2016. 29 Country Information and Guidance Ukraine: Military Service, November 2015 - https://www.gov.uk/government/publications/ukraine-country-policy-and-information-notes 30 For further discussion of military intervention with respect to political Islam, see: H., Arik, 2016, Security, secularism and gender: the Turkish military’s security discourse in relation to political Islam

The substance of conscription laws naturally varies between states, however conservative generalizations can be made. Namely, conscription laws predominantly assign military duty to males, commonly from 18 until the age of 27. Currently there are only a handful of states enforcing mandatory military service for women, most notably Eritrea, North-Korea and Israel.31 The duration of military service usually takes between 9 and 24 months. In certain states one’s degree of education determines the length of service, whereby the higher educated serve less time. 32 Additionally postponement of one’s service is oftentimes possible for individuals in full-time higher education. Conscription laws generally exempt certain candidates based on their personal circumstances, two common grounds for military duty exemption are: I. The candidate's health, those deemed incapable of fulfilling their military service based on their mental or physical health; 33 II. Family situations, for instance when the candidate is an only son or already has one or more brothers currently serving in the army. A few states allow nationals to pay off their military service, and thereby absolve their obligation to serve.34 The price can be consciously settled such that it’s not feasible for poorer families to buy their son(s) out of military duty. Finally there are the penalties for those who openly refuse to serve, or try evading their military duty by failing to either enlist or answer the call to serve. This final area of conscription laws has adherence under international human rights law. The next chapter will therefore consider conscription within the framework of international law, observing interactions between conscription laws and international human rights law.

31 https://www.cia.gov/library/publications/the-world-factbook/fields/2024.html (accessed Deecember 2016) 32 'Students enrolled at high school or university are normally granted a delay until they complete their education after which they are obliged to apply to do military service, the duration of which is determined according to the educational level of the conscript. University graduates serve one year, high school graduates two while those who have not completed secondary education must serve three years.' - Egypt, Refugee Review Tribunal - Australia, (2009) http://www.refworld.org/pdfid/4b6fe1cf5.pdf (accessed december 2016) 33 For instance, Chapter 3 of the Finnish Conscription Act. 34 In Turkey the price of buying out of military service is $8700 for those 27 and over, there was a conscious decision to not make the price too low as not to impact conscription rates too much. The money collection through this system is used to finance the defense industry, creating a 'mixed system' of professional and conscripted defense. - http://www.al-monitor.com/pulse/originals/2014/12/turkey-compulsory-military-service-buy-exemption.html (last visited August 2016)

2.4 Conclusion Nationality is a legal bond of inclusionary nature, conferring rights and duties on those that belong to a state. National duties are largely a function of the reciprocal nature of nationality, whereby individuals are oftentimes obligated by law to contribute to the rights and services they enjoy as nationals. Military duty, enforced through conscription laws, obligates nationals to participate in the defense of the homeland. Conscription laws principally arise from the necessity of armies and self-defense, this necessity is largely determined by a nation’s history of armed conflict, borders and foreign relations.

Chapter 3: Conscription under International Law

Introduction States, being sovereign, have traditionally enjoyed unlimited jurisdiction within their territory. Through international law however, they consent to be bound by certain codified principles. Initially these rights and duties, established by international law instruments, almost exclusively concerned the actions of states towards other states. Duties could however extend to include the nationals of other states, for instance in agreements of diplomatic immunity and on the treatment of aliens. Nevertheless individuals, whilst residing within their state, would largely fall outside the scope of international law. The emergence of international human rights law has lead the individual to increasingly become a subject of international law.35 The principal objective of international human rights law is to establish human rights standards and safeguard these within domestic legal systems. The Universal Declaration of Human Rights of 1948 (UDHR) established a foundation for international human rights law. Whilst the UDHR itself is not a binding legal instrument, it establishes the standard for fundamental rights and serves as an instrument for recommendation. The effects of international human rights law expanded by codifying the fundamental human rights principles into legal instruments binding on states who ratify them. Prominent examples of such instruments are the International Covenant on Civil and Political Rights (ICCPR), a direct extension of the UDHR, and the European Convention of Human Rights (ECHR). This chapter will explore the relation between international law and conscription laws, aiming to identify the legal boundaries of conscription under international law. The ability of states to impose military duty will be weighed against prominent human rights standards. Afterwards, the advancement of international human rights laws will be considered in the context of conscription.

35 Klabbers, J., International Law, 2013, p.107

3.1 The Right to Conscript International law, starting with provision on prohibition on the use of force, has pursued the abolition of war.36 Nevertheless armed conflict remains a distinct reality, necessitating an exception for the right to self-defense. The right to self-defense is intrinsic to a state’s sovereign nature and is widely regarded to be a customary right. The right to exercise self defense was affirmed in article 51 of the Charter of the United Nations:

‘‘Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.’’ 37

Similarly the state right to conscript nationals is considered a sovereign's inherent right. Under early international law, the right of states to conscript their subjects was affirmed in the context of the abolition of forced labour. The Forced Labour Convention of 1930, now signed by 178 parties, established that interpretation of forced labour would not include:

Article 2(2a) ''any work or service exacted in virtue of compulsory military service laws for work of a purely military character.'' 38

Conscription was thereby excluded from qualifying as forced labour under international law. Later provisions on forced labour, such as article 8.3c of the ICCPR, resonate this early interpretation.39 The inherent right of states to conscript their subjects is therefore reassured by international law. Ultimately, there are few provisions under international law limiting the ability of states to conscript those under their jurisdiction. A prominent restriction to the right to conscript is the prohibition on the use of children, found in numerous legal provisions pertaining to the rights of children. Notably, the Rome Statute of the International Criminal Court established that the conscription of those under the age of 15 and their forced participation in hostilities would constitute a war crime.40 Later the Optional

36 Ibid. Page 188 37 United Nations, Charter of the United Nations, 24 October 1945, Art 51 38 International Labour Organization (ILO), Forced Labour Convention, June 1930, Article 2 39 UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, 8.3c (ii) 40 UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998,

Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict (OPAC) raised this standard by prohibiting the compulsory enlistment and military involvement of anyone under the age of 18.41 With 166 parties to the treaty, most states have now adopted this standard. Additionally, in the context of enforcing compliance with conscription laws, practices such as torture and other inhumane treatments naturally constitute violations of international law.42 The universal prohibition of such practices was established in a number of legal instruments. Under international humanitarian law, the prohibition of torture and inhuman treatment was established under common article 3 of the Geneva Convention. Article 7 of the ICCPR is an example of this principle under international human rights.43 Conscription, embracing the gravity of self-defense, has a propensity to marginalize the rights of conscripts.44 For this reason, prohibition on inhumane treatment is a significant and necessary limitation in the context of conscription practices. In conclusion, international law places very few restrictions on the right of states to conscript their nationals. However opposite of this right stands the doctrine of human rights, safeguarding and advancing the rights of the individual. The next segment will reflect the reality of conscription against the standards of human rights as established in the Universal Declaration of Human Rights.

3.2 Conscription and International Human Rights Standards Conscription, by virtue of its coercive nature, is invariably controversial. In modern times critique towards conscription tends to emanate from a presumed derogation of human rights standards. Questions on the extent to which governments can own their subjects and infringe on their rights are regularly raised in regards to conscription.45 When simply skimming through the

Art. 8B.xxii & 88E.vii 41 UN General Assembly, Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, 25 May 2000, Art 2 42 Continued reports about non-combat deaths, torture and maltreatments of conscripts in the Armenian military ... - Muizniks, N., Commissioner For Human Rights Of The Council Of Europe Following His Visit To Armenia From 5 To 9 October 2014, March 2015, Page 22- 23 43 ‘No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. ..’ - UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, Article 7 44 Amongst a variety of human rights abuses, torture has been reported to be a prevalent punishment of draft evaders and deserters. A notable example being Eritrea: - Human Rights Council, Detailed Findings of the Commission of Inquiry on the Status of Human Rights in Eritrea, 8 June 2016, p.281 45 Novelist and philosopher Ayn Rand on conscription: ''Of all the statist violations of individual rights in a mixed economy, the military draft is the worst. It is an abrogation of rights. It negates man’s fundamental right–the right to life–and establishes the fundamental principle of statism: that a man’s life belongs to the state. ''

articles of the Universal Declaration of Human Rights, conscription would seemingly impede the enjoyment of numerous human rights, namely:

1. Article 3 - ‘the right to life and liberty and security of person’; Compulsory military service includes the obligation to partake in armed conflict, including in a combatant capacity. Conscription thereby affects one’s right to life, liberty and security. Ultimately, one’s individual right to life, liberty and security is outweighed by the priority of national security and the ensurance of the same right to the collective of nationals. 2. Article 4 - ‘the right to not be held in servitude’; Conscription constitutes an involuntary service. While conscription of a military character is exempted from qualifying as forced labour or servitude under international law, the very definition of forced labour set in these instruments perfectly corresponds with the reality of conscription. Namely, the 1930 Forced Labour Convention defined as forced labour as: ‘work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily’’ 46 3. Article 13 - ‘the right to freedom of movement’; The involuntary confinement of conscript to their location of training and deployment is intrinsic to conscription. One’s freedom of movement is restricted during one’s service. 4. Article 23: ‘the right to free choice of employment’; Finally conscription establish one’s occupation for the duration of his or her service. Whilst acknowledging the existence of military subdivisions, the ability to freely choose employment is naturally removed during one’s term of service. 47

Thus it appears that the very constitution of conscription conflicts with human rights standards as established in the UDHR. Conscripts, while fulfilling their national duty of military service, have limited rights. However in the context of the application of human rights, distinguished systems of human rights protection such as the ECHR and the ICCPR have not raised issues regarding this discordance between conscription and the aforementioned human

Rand, A., Capitalism: The Unknown Ideal, 1966, p. 266 46 Article 2.2a from the International Labour Organization (ILO), Forced Labour Convention, June 1930 47 Universal Declaration of Human Rights, 1948, Art 3, 4, 13, 18 & 23(1)

rights. In practice, the application of rights cannot be absolute, rights exist as flexible concepts that exist within a context and their restrictions should be weighed against principles of necessity and proportionality. The minimal application under international human rights, as well as the difficulties of applying these principles of necessity and proportionality in the context of conscription will be considered in the discussion. Nevertheless there is a single right, of which the application has gained considerable ground on the right of states to impose military duty.

3.3 The Right to Conscientious Objection ‘Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.’ 48

The right to freedom of thought, conscience and religion was established in the UDHR. The principle subsequently codified in article 18 of the ICCPR as well as in regional instruments such as the European Convention of Human Rights (art. 9) and the American Convention of Human Rights (art. 12). Historically, a prominent exercise of this right has been the claim to conscientious objection. Conscientious objection refers to the refusal to perform military service based on the incompatibility of the nature of conscription with one’s conscience. Conscientious objectors are oftentimes motivated by religious grounds. The Jehovah's witnesses are a prominent historical example of a pacifistic religious group objecting to military duty. 49 The recognition of one’s right to conscientious objection is typically accompanied with the obligation to perform an alternative form of service. The opportunity to perform an alternative service allows nationals to exercise their right to conscientious objection whilst performing a substitute service of a civilian capacity. For instance, during the World War II British conscientious objectors were allowed to substitute their military duty for a labour duty in the coal mines.50 The right to conscientious objection was initially not recognized under international human rights law. The choice of whether to recognize the right to conscientious objection was left to the

48 UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, Article 18 49 UN Human Rights Office of the High Commissioner, Conscientious Objection to Military Service, 2012, p. 2 & 3 http://www.ohchr.org/Documents/Publications/ConscientiousObjection_en.pdf (Acccessed 14 november 2016) 50 ‘John registered as a Conscientious Objector on religious grounds and worked as a coal miner at Haig Pit, Kells.’ http://www.bbc.co.uk/history/ww2peopleswar/stories/43/a3697743.shtml (Last vistited october 2016)

discretion of state jurisdictions. The Human Rights Committee, the body reviewing compliance with the ICCPR, stated in 1984 that there was no inherent right to conscientious objection to compulsory military duty.51 Later the European Commission of Human Rights, in regard to ECHR article 9, assessed a number of cases involving the persecution of conscientious objectors to be lawful. The claims of human rights violations were deemed inadmissible.52 Gradually the interpretation of the right to freedom of thought, conscience and religion expanded to include the right to conscientious objection. The Human Rights Committee expressed their recognition of the right to conscientious objection in their General Comments Nr. 22.53 Conscientious objection as a derivative right has since been enforced in case law. The interpretation of the right to freedom of thought, conscience and religion under article 18 of the ICCPR is now:

'...entitles the individual to an exemption of compulsory military service if this cannot be reconciled with the individual's religion or beliefs'.54

Similarly, the European Court of Human Rights in ‘Bayatyan vs Armenia’ expanded the interpretation of ECHR article 9 to include the right to conscientious objection.55 While many states now recognize the right to conscientious objection, many other states have not institutionalized the right to conscientious objection. Under these jurisdictions the refusal to serve for conscientious reasons is routinely equated to draft evasion, and objectors are either forcefully drafted or suffer the sanctions placed on draft evaders. A particularly worrying phenomenon is the repeated punishment of conscientious objectors for their persistent refusal to perform military service.56 Repeated punishment for conscientious objection further violates the right to freedom of conscience, thought and religion, as it constitutes an effort to change a person's convictions through coercion.57 Additionally, the act of repeated punishment of conscientious

51 L.T.K v Finland Communication No 185/1984 52 European Court of Human Rights, Conscientious Objection: Fact sheet, September 2015, p. 2 http://www.echr.coe.int/documents/fs_conscientious_objection_eng.pdf (Accessed 14 November 2016) 53 UN Human Rights Committee (HRC), CCPR General Comment No. 22: Article 18 (Freedom of Thought, Conscience or Religion), 30 July 1993 54 Min-Kyu Jeong et al. v. The Republic of Korea, UN Human Rights Committee (HRC), 27 April 2011 55 Bayatyan v. Armenia, App no. 23459/03, Council of Europe: European Court of Human Rights, 8 July 2011 56 Ülke v. Turkey,Application no. 39437/98, Council of Europe: European Court of Human Rights, 24 January 2006, 57 UN Economic and Social Council, Report of the Working Group on Arbitrary Detention, Opinion No. 36, 1999 (Turkey) Recommendation 2

objectors, was interpreted by the Human Right Committee, to be in direct violation of the prohibition on repeated punishment under article 14(7) of the ICCPR.58 The application of the right to conscientious objection, in regards to determining the legitimacy of claims to conscientious objection is problematic. Whereas religious grounds at least provide proof of one’s rigid and invested position, individual claims to conscientious objection are harder to affirm. In recognizing the right to conscientious objection, some states have exclusively extended the right to religious groups known to be devout pacifists. As a result, both the Human Rights Committee and the Commission of Human Rights have referred to a prohibition of discrimination amongst conscientious objectors.59 However such a permissive application of the right to conscientious objection likely has states concerned by its ability to undermine the system of conscription. A flexible application of the right to conscientious objection would allow anyone seeking to avoid military duty to simply claim their personal beliefs to be incompatible with service of a military character. The Office of the United Nations High Commissioner for Human Right, in a publication intended as a guide for state officials, briefly addressed these concerns in their concluding remarks.60 In conclusion, the interpretation of the right to freedom of thought, conscience and religion has expanded to include the right to conscientious objection, which one can interpret as a victory of human rights over the institution of military duty. Nevertheless the very ability of this right to compromise the institution of military duty likely impedes its worldwide application. The status of the right to conscientious objection aptly encapsulates the relation between human rights on one side and the reality and necessity of conscription on the other. This status quo will be further considered in the discussion of this paper.

58 UN Human Rights Committee (HRC), General comment no. 32, Article 14, Right to equality before courts and tribunals and to fair trial, 23 August 2007 59 ‘’The Committee notes with concern the information given by the State party that conscientious objection to military service is accepted only in regard to objections for religious reasons and only with regard to certain religions, which appear in an official list. The Committee is concerned that this limitation is incompatible with articles 18 and 26 of the Covenant.’’ - UN Human Rights Committee, Concluding Observations: Ukraine, 12 November 2001, Article 20 60 UN Human Rights Office of the High Commissioner, Conscientious Objection to Military Service, 2012, p.83 http://www.ohchr.org/Documents/Publications/ConscientiousObjection_en.pdf (Acccessed 14 november 2016)

3.4 Conclusion We conclude that international law minimally interferes with the ability of states to impose military duty on their subjects. Human rights restrictions are, to a certain degree, intrinsic to the practice of conscription. The limited enjoyment of human rights, during one’s term of military service, is seemingly contained in the right of states to conscript. Consequently, the task of finding a balance between human rights considerations and conscription practices is largely left to state discretion. Nevertheless advancement in the interpretation of human rights, such as the rights to freedom of thought, religion and conscience, have provoked changes in the application of conscription laws in the favor of human rights.

Chapter 4: Conscription and Access to Rights

Introduction Whereas the previous chapter considered the conventional relation between human rights and conscription, this chapter will regard the indirect effects of conscription on the access and enjoyment of rights attached to one’s nationality. In furtherance of this purpose, the emphasis will be on military duty as part of nationality, and its interplay with the rights attached to nationality.

4.1 Nationality & Rights Whereas we’ve previously explored the nature of national duties, it is predominantly the rights, privileges and services accessed through nationality that typically garner attention towards the discourse on nationality. Nationality by virtue of its inclusionary nature grants exclusive rights and services to those that belong. The advancement of human rights has made many rights available to the individual, nevertheless the inclusionary nature of nationality is indispensable for the access to these rights. The right to nationality was established in the Universal Declaration of Human Rights and has been codified in various legal instruments.61 International law has furthermore advanced in the recognition and protection of stateless people, notably through the 1954 Convention Relating to the Status of Stateless Persons as well as the 1961 Convention on the Reduction of Statelessness. As was the case for national duties, rights enjoyed as a national will be largely determined by the laws of the state. While there is no exhaustive set of rights associated with the status of national, certain rights can be identified accompanying nationality based on international law standards. Two rights, considered fundamental to the bond of nationality are the right to diplomatic protection and the right to re-(admission) and residence.62 These rights have been considered cogent for one’s status of nationality, though no substantive minimum content of nationality has been agreed upon.63 Additionally, under international law a larger set of rights can be identified as accompanying one’s status as national. For the purpose of this study we’ll consider the following rights:

61 UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, Article 15 62 Weis, P., 1979, Nationality and Statelessness in International Law, p. 38-40 63 Edwards, A., Waas, L., Nationality and Statelessness under International Law, 2014 p. 40-42

• I: The right to change one's nationality, established in UDHR Article 15(2): '… nor denied the right to change one's nationality'; • II: The right to leave one's own state, established in UDHR Art. 13(2) and ICCPR : 'Everyone has the right to leave any country, including his own, ....' • III: Civil and political rights, such as the participation in public life, as well as general rights to economic, social and cultural advancement.64

These rights are to be facilitated by states and for their nationals, meaning they can be considered rights attached to one’s nationality. Both the right to change one’s nationality and the right to leave one’s own state function as safeguards from excessive state demands of allegiance.65 Whereas the third and final right embodies the inclusionary and empowering nature of nationality. Before individually considering these rights in depth, we should revisit the duty of allegiance as a basis through which the duties and rights comprising nationality may interact.

4.2 Allegiance and the Access to Rights In chapter 2, we considered allegiance as an enduring and continuous bond that gives rights as well as imposes duties on national. However, the duty of allegiance is not only consequential for one’s right to nationality, but can be equally meaningful for the rights one enjoys as a national. One’s duty of allegiance can function as a debt; more specifically duties levied by one’s duty of allegiance can be treated as as an outstanding debt. For instance, under Athenian law citizens are indebted to the state that has 'educated' and 'nurtured' them.66 In case of permanent allegiance, one’s inability to change their nationality was precipitated by the notion of continual debt to the state. However throughout history states have distinguished between different classes of citizenship, bestowing corresponding rights to respective subgroups.67 Distinctions in adulthood and sex are naturally consequential for one’s rights and duties. Thus, Plato argued that the right to leave the state should be a privilege reserved for older citizens who have proven their loyalty, the

64 UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, Article 25 65 Whelan, F., Citizenship and the Right to Leave, The American Political Science Review, Vol. 75, (Sep., 1981), page 639 66 Plato, Crito 50e, 51c 67 For instance, in the case of Birtish Nationality, https://www.gov.uk/types-of-british-nationality/overview

ability of indebted citizens to leave the country should therefore be supervised by the government. 68 It is not uncommon for states to restrict the right to leave the state for citizens that have outstanding obligations such as serious debts, parole etc. Under nationality, military duty is likely the most considerable debt often quantified in terms of duration. We will therefore apply this concept of indebtedness to the duty of military service, as we observe the access of due conscripts to: I the right to change one’s nationality, II: the right to leave one’s own state. Finally we’ll reflect the non-performance of one’s military duty against the access to the other rights accompanying nationality. Particularly the inclusionary rights of an empowering character such as: the right to participate in public life and general rights to economic, social and cultural advancement.

4.3 The Right to Change One's Nationality The nationality we are assigned at birth unlocks the rights and duties we possess through our lives, conferring both advantages as well as disadvantages upon us. Our nationality determines amongst a number of things where we can freely travel, where we may legally reside as well as potential securities available to us such as health care and welfare. In chapter 2.2 we considered how, by virtue of the easing of the duty of allegiance, nationality transforms from a permanent to a more malleable bond, allowing for the transferal of allegiance and national affiliations. The right to change one's nationality was established as a fundamental right in the Universal Declaration of Human Rights.69 Additionally, the right to change one's nationality implicitly acknowledges the right to renounce one's nationality, particularly in the process of acquiring a new nationality.70 Both applying for naturalization as well as the granting of naturalization may require the renunciation of one’s former nationality. States party to UN Convention on the Reduction of Statelessness must ensure that the renunciation of one’s nationality shall not result in statelessness. 71

68 Plato, Laws, 950D 69 'nor denied the right to change one's nationality' - UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, Art 15(2) 70 ‘The ability to renounce one’s nationality is a vital element of the right to change allegiance and adopt the nationality of another state’ - Van Waas, L., Nationality Matters: Statelessness under International Law, 2008, page 80 71 UN General Assembly, Convention on the Reduction of Statelessness, 30 August 1961, Article 7: ‘If the law of a Contracting State permits renunciation of nationality, such renunciation shall not result in loss of nationality unless the person concerned possesses or acquires another nationality.’

Renouncing one's nationality constitutes the loss of rights and duties attached to that nationality. Nationals may thus seek to renounce their nationality in order to detach themselves from national duties. Jurisdictions harboring strong notions of indebtedness with respect to the military duty of their subject can ensure they exact this debt by installing the fulfillment of one’s military duty as requisite for the renunciation of their nationality. For instance, renunciation under the Greek citizenship code states that those who have not fulfilled their military duty cannot submit a request, nor receive permission, to renounce their citizenship.72 Similarly, Turkey installs completion of military service as one of the conditions required for the renunciation of citizenship. 73 Other states, such as Moldova enforce a variation of this principle whereby the scope is limited to only include those citizens who lawfully and habitually reside in the Republic of Moldova.74 In the abovementioned cases, nationals are confined to their bond of nationality until they fulfill their indebted duty, such standards restrict one’s right to change one’s nationality. This assumption of indebtedness is equally consequential for the next right we’ll discuss: the right to leave one’s state.

4.4 The Right to Leave One's Own State The right to leave one's own state is the second of two rights functioning as a safeguards from excessive demands of allegiance. The right to leave any state, including one's own, was established as a fundamental human right in the UDHR and was later codified in a variety of international legal instruments, most notably in article 12.2 of the ICCPR.75 The right to leave one's own state encompasses both the right to leave with the intention of returning, as well as the right to leave with the intention of emigration. Article 12.3 of the ICCPR establishes permitted restrictions to the rights to leave, namely in requirement of exceptional circumstance necessitating limitations on this right for the protection of national security, public order or public health.76 The Human Rights Committee has elaborated on the right to leave in General Comment No. 27, providing comment and guidance for states to ensure the protection of this right. The document

72 ‘Neither the permission will be granted nor will the application be accepted, if the applicant has not completed or delays his military obligations or ...’ - Greek Citizenship Code, Article 16(3): 73 Turkish Citizenship Law, Adoption Date: 29/5/2009, Article 25(c) http://eudo-citizenship.eu/NationalDB/docs/TUR%20Turkish%20citizenship%20law%202009%20(English).pdf 74 The Parliament Of The Republic Of Moldova, Law on Citizenship of the Republic of Moldova, Article 22(b) 75 http://www.peacepalacelibrary .nl/ebooks/files/GCIM_TP8.pdf, p 3 76 UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, Article 12.3

notably establishes that the enjoyment of this right may not be made dependent on the duration or the specific purpose of travel, additionally it provides that the right to leave one's country must include the right to obtain the necessary travel documents, as appropriate instruments to exercise the right under article 12.2.77 Finally, permissible restrictions under Art 12.3 are required to be grounded in law and must meet tests of necessity and proportionality respectively. With this insight, let us first consider a small compilation of reports describing domestic law measures restricting the ability of due conscripts to leave the state, before addressing the effects and legality of such practices.

Reports Numerous reports indicate that the exercise of the right to leave one's own country can be made contingent on the completion of one's military duty.78 Measures range from simple additional administrative measures to considerable or absolute restriction towards the right to leave one’s own state. In Syria, for instance, males with an outstanding military duty need special permission from the ministry of defense in order to exit the state.79 Such measures applying to males with outstanding military obligations are prevalent, numerous states utilize systems of exit permits discriminating against due conscripts.808182 In Armenia fulfillment of military service is marked by a certificate of completion, oftentimes required in the application for travel document such as passports and visas.83 The overseas travel permit system of South Korea requires additional

77 UN Human Rights Committee (HRC), CCPR General Comment No. 27: Article 12 (Freedom of Movement), 2 November 1999, Paragraph 2 - 9 78 The U.S. country report on Israel mentions that 'Citizens generally were free to travel abroad and to emigrate, provided they had no outstanding military obligations and no administrative restrictions.' Bureau of Democracy, Human Rights, and Labor, 2007 March 11, 2008, Israel and The Occupied Territories http://www.state.gov/j/drl/rls/hrrpt/2007/100597.html (Accessed June 8th) 79 Danish Refugee Council, 2007 Report from a fact finding mission to Damascus, p. 21 80 Egypt applies similar restrictions to due conscripts 'Males who have not completed compulsory military service may not travel abroad or emigrate, although this restriction may be deferred or bypassed under special Circumstances.' United States Department of State, U.S. Department of State Country Report on Human Rights Practices 2006 - Egypt , 6 March 2007, available at: http://www.refworld.org/docid/45f056967.html (accessed June th 8 2016) 81 Uzbekistan requires the possession of an 'exit visa' alongside one’s passport, enlisted males are denied such exit visas - Landinfo - Country of Origin Information Centre, Uzbekistan: ID documents and passports, 18 February 2013, p 16, available at: http://www.refworld.org/docid/533e9d5f4.html (accessed 27 June 2016) 82 Armenia also employs a system of exit permits, particularly in relation to emigration, whereby proof of 'compliance with military service obligations' is required as a supporting document during the application. - Galoyan, M., Exit Permit Requirement as an Impediment to Freedom of Movement, 2007, p. 9 83 Country of Return Information (CRI) Project, Country Sheet - Armenia, February 2009, available at: http://www.refworld.org/docid/49fafe532.html [accessed 23 June 2016]

documents of due conscripts proving the purpose of the desired travel.84 Iran has been reported to require due conscripts wishing to travel abroad for studying purposes to deposit a bond.85 On the extreme end of the spectrum we find militarized states such as Eritrea and North-Korea, characterized by their emphasis on conscription and strict exit protocols.86 87

Necessity & Legality Restricting the ability of due conscripts to leave the state impedes their ability to evade or illegally postpone their military duty, additionally it regulates one’s ability to acquire or enjoy another nationality. Considering that the postponement of military duty is customary, particularly for studying purposes, many adults can reach their mid to late twenties before enjoying co-equal access to their right to leave the state.88 Such practices, much like the restricted right to change one’s nationality, are contrary to the spirit of human rights as established in the UDHR. However considering the binding nature of ICCPR, the right to leave one’s state has a tangible significance. Many of the states imposing travel restrictions, such as Syria, Egypt, Armenia and Iran are party to the ICCPR, without any reservations to article 12.2. While the HCR has commented on a variety of cases regarding the restricted right to leave the state, no communications directly address exit restrictions applying to conscription candidates. Nevertheless the use of exit visas, as employed by numerous states, has been condemned.89 The ICCPR thus generally prohibits administrative procedures from complicating or restricting the right to leave. The condemnation of exit permits,

84 In South Korea permitted period of travel granted through the overseas travel permit is dependent on the purpose of travel. Without documents such as admission letters, certificate of emigration or proof of training or education purposes, a conscription candidate granted a travel permit may only travel for one year up to the age of 27 - Overseas Travel Procedure Guidebook for Conscription Candidates, 2011, (accessed on www.mma.go.kr 27 june 2016) 85 Canada Immigration and Refugee Board, 28 March 2014, Iran: Military Service http://www.refworld.org/docid/550fd7e64.html (Accessed 29 June 2016) 86 'The government did not allow emigration, and reports indicated that it tightened security on the border, which dramatically reduced the flow of persons crossing into China without required permits.' - United States Department of State • Bureau of Democracy, Human Rights and Labor, Country Reports on Human Rights Practices for 2011, page 13 87 'It often denied national service recruits passports and exit visas on grounds they had not completed their military duties.' … ' The government has the ability to restrict foreign travel, and requirements for obtaining passports and exit visas were inconsistent and nontransparent.' - United States Department of State, 2013 Country Reports on Human Rights Practices - Eritrea, 27 February 2014, available at: http://www.refworld.org/docid/53284ae320.html (accessed 27 June 2016) 88 Immigration and Refugee Board Canada: Iran - page 4 https://www.justice.gov/sites/default/files/pages/attachments/2015/12/07/irn104809.e.pdf (accessed july 2016) 89 ''the requirement of exit visas and the persistence of the internal passport are unacceptable and incompatible with article 12 of the Covenant.”- Concluding Observations, Belarus, ICCPR, A/47/40 (1992) 124, para. 561, available at http://www.bayefsky.com/themes/leave_concluding-observations.php

in the absence of specific acknowledgement of the widespread restrictions placed on those with outstanding military duty, means that the right of due conscripts to leave the state under the ICCPR is not yet legally assured. The legality of permissible travel restrictions rests on the principles of necessity and proportionality. Considering the provided scope regarding permissible limitations to article 12 of the ICCPR does not lend sufficient detail to soundly ascertain the legality of the abovementioned use of exit restrictions. For instance, would a rapid loss of population be justified as a national emergency, justifying a restriction on the right of citizens to leave the state? Similarly does the necessity of enforcing conscription laws for national security justify the restricted right to leave for due conscripts? Another possible perspective would be, that the right to conscript includes the ability to impose measures, such as exit restrictions, to ensure compliance with conscription laws. We need to consider that the ability of states to restrict due conscripts from leaving the state is particularly significant during times of national emergency where the armies involvement is required. It was reported, that after the outbreak of the Syrian civil war passport applications for males over 18 were screened for the completion of military service.90 The difficulty of applying the principles of necessity and proportionality, as suggested at the end of Chapter III, will be considered further in the discussion.

4.5 Military Duty and the Access to Civil and Political Rights Finally let us consider the relation between the fulfillment of one’s military duty and inclusion manifested through civil and political rights. Whereas we observed that adherence to one’s duty of allegiance can be consequential for one’s right to nationality, the fulfillment of national duties can be consequential for the access to assorted rights and services. The failure to complete one’s military duty can have various consequences for one’s rights. Draft evasion is the consequence of either the failure to enlist or the failure to report for duty, and constitutes a criminal offense under most jurisdictions. Detection oftentimes results in fines accompanied by a forceful draft or a prison sentence. The prevalence of draft evasion depends on factors such as public perception of the draft and the degree of persecution and

90 Canada: Immigration and Refugee Board of Canada, Syria: Procedures to obtain, renew and replace national identity cards and passports; information contained in the passport and the identity card, 5 July 2013, http://www.refworld.org/docid/520e247c4.html (accessed 10 July 2016)

penalties for draft evaders. We’ll distinguish draft evaders from draft resisters such as conscientious objectors who display their refusal to serve publicly, oftentimes in protest of human rights violations or the nature of an ongoing conflict.91 Draft evaders commonly either continue residing within the state and take measures to avoid detection, or choose to evade their military duty by leaving the state. Under regimes actively persecuting draft evaders, those choosing to evade the draft can resort to exploiting the corruption amongst officials or by living clandestinely. 92 Such a life can amount to civil death, whereby citizens cannot exercise rights or enjoy services that may alert authorities of their outstanding obligation to serve. In these cases the lack of rights is the inadvertent consequence of the choice to evade military duty and taking measures to avoid detection. In addition to the regular penalties for draft evaders, states may choose to arrange the access to civil and political rights such that it requires proof of exemption or fulfillment of one’s military duty. For instance under the universal conscription regime of Revolutionary France ‘... no Frenchman could hold public office, or exercise their full civil rights, if he had not fulfilled his military obligation’.93 Such measures serve the purpose of discouraging draft evasion, as well as excluding those have not settled their debt of military duty, and remain prevalent today. States may choose to arrange the access to civil and political rights such that it requires proof of exemption from or fulfillment of one’s military duty. For instance, Sudan laws state the completion of military service is a precondition for qualifying for higher education and certain careers.94 Reports suggest that in Iran the fulfillment of military duty is a requisite to enjoy a number of civil rights. Completion of one’s military service is reported as a requisite to qualify for government and 'high paying' jobs, additionally failure to serve can lead to the denial of the right to acquire a passport, to leave the state or to apply for a driver's license.95 Where these measures are combined with a restricted ability to leave the state, nationals are forced to either fulfill their military duty or relinquish their rights. Certain states do allow for

91 In 1967 the boxer Muhammad Ali famously resisted being drafted to fight in the Vietnam War, and was subsequently convicted as a draft evader on account of his application of conscientious objection being denied. The conviction was later overturned by the Supreme Court - Clay v United States 403 U.S.698 (1971) 92 'Some deserters dare not leave their homes, fearing neighbors who might report them.'- Immigration and Refugee Board of Canada, Syria: Compulsory military service, 13 August 2014 93 Hanson, P., Historical Dictionary of the French Revolution, 2015, p. 83 94 For doctors completed service is required to be certified by the Ministry of Health and practice medicine. - Canada Immigration and Refugee Board, 11 January, 2002, Sudan: Medical Doctors and Military Service, Exemptions and Restrictions on Exit From The Country. 95 Canada: Immigration and Refugee Board of Canada, Iran, 28 March 2014,

military duty to be paid of at a certain age, in these instances the forfeiture of rights by draft evaders is temporary for those who have the money. 96 As we consider earlier, in the case of conscientious objectors, the legality of the forfeiture of rights as a consequence of conscription laws is conditional to the legality of a state’s conscription laws under international law.

4.6 Conclusion Thus, under international law a number of rights can be identified as accompanying one’s status as nationality. However he access to these rights does not necessarily function as a guarantee. Namely, the national duty of military service can embody notions of indebtedness, restricting the rights of due conscript to change their nationality or to leave the state, as a means to ensure the fulfillment of their military duty. Finally we observed how draft evasion can lead to a lack of rights, and how under certain jurisdiction the completion of military duty can be a precondition for enjoyment of certain civil and political rights. These findings emphasize the practical and reciprocal nature of nationality, where the performance of duties is tied to the empowering character of nationality.

96 ‘Many young conscription-evaders are forced into a legal limbo, denied most of their civil rights until they reach the age of 30. The 1980 conscription law makes having the conscription completion document a precondition for studying at any Egyptian university, applying for any job, or issuing a travel document.’ European Asylum Office - Egypt -- http://lifos.migrationsverket.se/dokument?documentAttachmentId=42715 (retrieved november 2016)

Chapter 5: Discussion In this chapter we’ll further consider our findings on: I: The status of conscription under international law, in light of the perceived human rights restrictions. II: The significance of military duty for the nature of nationality. Finally we’ll address the shortcomings of this study and offer suggestions for future research.

Conscription and Human Rights under International Law A number of factors could be considered as clarifying the minimal interference of the application of international human rights in the context of conscription. First, both national security and the ability to raise forces are rather sacred constituents of a sovereign's nature and therefore delicate areas for international law to enter. The tone was seemingly set in the 1930 Labour Convention when military conscription was excluded from the scope of forced labour. The right of states to impose conscription, by virtue of its national character, outweighed the right of individuals not to be held in servitude. Furthermore, conceding this right of states to conscript surely recognizes the necessity of an exacting environment that soothes the economy of conscription. Adherence to human rights such as the right to freedom of conscience, the right to leave one’s state and the right to change one's nationality undoubtedly limit a state's ability to enforce military duty on their nationals. Assessing permissible limitations on human rights compels the application of the principles of necessity and proportionality, typically discussed in the context of self-defense whereby prohibited actions are legitimized if prescribed by military necessity and satisfying the test of proportionality. We’ve previously considered how a state’s history of armed conflict and foreign relations largely determine the necessity and substance of their conscription laws. While distinguishing between peacetime and active conflict is imperative in assessing permissable limitations of human rights, conscription is commonly excited by the anticipation of hostilities rather than imminent hostilities. For instance, for both Armenia and Azerbaijan conscription practices are underscored by their tense border situation, with regular violations of the ceasefire negotiated in 1994. From the perspective of these states conscription is of existential importance by supplying military forces without budgetary constraints, proving a trained populace in the case of war and serving to constrain their adversaries’ inclinations towards escalation. Thus, from the state perspective the necessity of conscription has an understandable propensity to outweigh

human rights consideration such as the right to conscientious objection and the right to leave one’s state. In applying the principles of necessity and proportionality, the perspective of the state imposing conscription is inclined to greatly differ from the outsider’s interpretation. Nevertheless observing the severe human rights violations stemming from conscription laws, emphasizes the necessity of limitations on the right to conscript under international law. The absence of clear guidelines, such as standards establishing maximum terms of military duty, further complicate the application of human rights and are also consequential for refugee situations. The general lack of such standards for conscription practices leads to ambiguity in the assessment of human rights violations. For instance, the adequate guidelines now established for conscientious objectors allow for cases to be recognized as legitimate persecution and therefore constitute grounds for claims to refugee status.97

Nationality Revisited The acquisition of nationality is typically such, that one is simply born and assigned a nationality. The substance of this nationality establishes one’s rights and duties, and from the perspective of the individual resembles a randomized draw fixing their rights and responsibilities. There are nationalities characterized by their esteemed access to rights as well as the enjoyment of various services and privileges. On the other end of the spectrum there are nationalities distinguished by their burden of national duties. Occasionally the burden of duties is such that nationals wish to cease their bond of inclusion. In light of these considerations, the right to change one’s nationality compensates for the involuntary nature of one’s adopted nationality and corresponding duties. Nevertheless, where notions of indebtedness manifest themselves through measures restricting the ability of nationals to leave the state or to renounce their nationality, the burden of national duties can become inescapable.

97 UN High Commissioner for Refugees (UNHCR), Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, December 2011, Chapter V (B), 171

Limitations of the Research The approach used in this paper only considered the effects, of conscription laws, on the human rights of those who are obligated to perform a military duty. However conscription can also affect the rights of those who are not included in the scope of conscription laws. If the stability and prosperity of a state is contingent on conscription, conscriptions laws may in reality be a requisite for the advancement and collective enjoyment of rights by all members of the state. Following research should consider the limitations placed on the rights of the conscript in relation to the enjoyment of those same rights by the collective of nationals, particularly for the right to life, liberty and security of person. Furthermore this research does not consider whether military duty, particularly in the absence of reciprocal and symbolic values, can exhaust its national character. Namely, what is the nature of the overlap between military duty as a function of the bond of nationality and military duty as a function of the mere ability to impose obligations through coercion? Finally a common difficulty in researching conscription lies in the limited transparency that states provide with respect to conscription and military practices. Our analysis of military duty in relation to the access to rights therefore predominantly relied on a variety of outside reports.

Chapter 6: Conclusion

The contention of this paper has been that military duty can be greatly consequential for the enjoyment of one’s rights. Military duty, by virtue of the necessity of conscription, has a propensity to burden its nationals and limit the enjoyment of their rights. The right of states to conscript under international law, greatly influences the framework of nationality, particularly with respect to human rights. Establishing a balance between the necessity and utility of conscription and safeguarding human rights is largely left to state discretion, where the necessity of conscription has a propensity to outweigh human rights considerations. Nevertheless considerable advancement in the application of human rights has been made, as in the case of the right to conscientious objection. Furthermore we’ve established that the inclusionary nature of nationality, as it pertains to the access to rights, can be dependent on the completion of one’s duties. The effects of military duty on human rights can thus extend past one’s term of service. We’ve established the mechanisms by which military duty can restrict the access to human rights, namely as a function of indebtedness for due conscripts and exclusion from rights in the case of non-performance. Indebtedness thus remains an influential facet of nationality, as manifested in the duty of military service, and fundamentally conflicts with the spirit of international human rights as established in the Universal Declaration of Human Rights.

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