Conscientious Objection as a Basis for Refugee Status: Protection for the Fundamental Right of Freedom of Thought, Conscience and Religion

Posted: 5 Aug 2009  

Karen Musalo

University of California Hastings College of the Law

Abstract

It is beyond dispute that sovereign nations have the right to raise and maintain armies. This right may come in conflict with the right to conscientious objection, which has increasingly been recognized as a legitimate exercise of freedom of thought, conscience and religion. Individuals who face mandatory military service in contravention of their deep moral convictions, may flee their home countries, and seek refugee status abroad as a solution. Their recognition as refugees depends on a broad constellation of factors, including the particular basis for their refusal to serve, the nature of the military conflict itself, and the degree to which the state in which they seek asylum follows the guidance of the United Nations High Commissioner for Refugees (UNHCR) on the issue of draft evasion and desertion as a basis for protection. This article will examine the trends regarding the protection of the individual whose claim to refugee status is premised upon a conscientious objection to military service. It will begin by examining the internationally recognized right to freedom of thought, conscience and religion, and discuss its relationship to conscientious objection. It will then examine the position and underlying rationale of the United Nations High Commissioner for Refugees on the issue. It will look at the trends in a number of common law countries, and evaluate the degree to which UNHCR guidance and other relevant human rights norms are respected. It will conclude by recommending a more robust protection of individuals of conscience who do not want to participate in the military.

Keywords: Freedom of religion, freedom of thought, conscience and religion, conscientious objection and refugee status

Suggested Citation

Musalo, Karen, Conscientious Objection as a Basis for Refugee Status: Protection for the Fundamental Right of Freedom of Thought, Conscience and Religion. Refugee Survey Quarterly, Vol. 26, Issue 2, pp. 69-78, 2007. Available at SSRN: https://ssrn.com/abstract=1442338 or http://dx.doi.org/10.1093/rsq/hdi0228

Karen Musalo (Contact Author)

University of California Hastings College of the Law ( email )

200 McAllister Street
San Francisco, CA 94102
United States

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