European Court of Human Rights allowing countries to conscript men only.

[someoneelse1984]

Why does the European Court of Human Rights allow member states of The Council of Europe to conscript men but not women?

The following countries are all members of The Council of Europe: Albania, Austria, Bulgaria, Cyprus, Denmark, Finland, Germany, Greece, Norway, Poland, Russia, Serbia, Sweden, Switzerland, Turkey, and Ukraine. All of the above conscript men and none of them as far as I know compel women to serve.

How is this not in breech of Article 14 of The European Convention on Human Rights?

Article 14 of The European Convention on Human Rights - Prohibition of discrimination

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

I imagine there have been men who took their governments to The European Court of Human Rights arguing that male-only conscription breaks Article 14, the fact that male-only conscription still exists proves that they can’t have been successful. What legal arguments did the court use to deny their case.

Conscription itself is explicitly allowed by the Convention, by the way.

Article 4 – Prohibition of slavery and forced labour

1. No one shall be held in slavery or servitude.
2. No one shall be required to perform forced or compulsory labour.
   3. For the purpose of this article the term “forced or compulsory labour” shall not include:
   1. any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention;
      2. any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service;
   2. any service exacted in case of an emergency or calamity threatening the life or well-being of the community;
   3. any work or service which forms part of normal civic obligations.

[alphaboi867]

My WAG is tradition. Very few countries have ever concripted women. During WWII the UK and the Soviet Union consripted women (although British women weren’t automatically placed in the military). Germany’s Basic Law does allow for female conscription, but only in wartime and then only as nurses. Isn’t Sweden considering conscripton for women. I remember something about Crown Princess Victoria recieving military training.

[Dunderman]

You’ve answered your own question. Human rights shall be enjoyed without sex-based discrimination, but freedom from conscription is not a human right according to the Convention, so you can discriminate based on sex as much as you like.

[someoneelse1984]

Would that mean if a member state had the death penalty for men but not for women (or vice versa) it would not be in breach of Article 2 of the convention?

Article 2 – Right to life1

1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:
   a. in defence of any person from unlawful violence;
   b. in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
   c. in action lawfully taken for the purpose of quelling a riot or insurrection.

[Dunderman]

@someoneelse1984

Would that mean if a member state had the death penalty for men but not for women (or vice versa) it would not be in breach of Article 2 of the convention?

I assume so.

[Northern_Piper]

@someoneelse1984

Why does the European Court of Human Rights allow member states of The Council of Europe to conscript men but not women?
…

I imagine there have been men who took their governments to The European Court of Human Rights arguing that male-only conscription breaks Article 14, the fact that male-only conscription still exists proves that they can’t have been successful. What legal arguments did the court use to deny their case.

You’re making a major assumption there - that this issue has in fact been taken to the Court. Do you have any information suggesting that is the case?

[someoneelse1984]

Well, it just seems so unlikely that 57 years of the ECHR’s existence, no men who were conscripted or lived in countries where they had the potential to be conscripted, have even tried to have the court look at the issue.

[naita]

@someoneelse1984

Well, it just seems so unlikely that 57 years of the ECHR’s existence, no men who were conscripted or lived in countries where they had the potential to be conscripted, have even tried to have the court look at the issue.

Let’s assume I minded my compulsory military service enough to go to court. I decide to go to the ECHR and complain that only men have to serve. The ECHR agrees and makes Norway change the policy so both women and men have to serve. Resulting change for me… well, I still have to serve my compulsory military service, only now half my fellow soldiers are women, and they’re all angry with me.

[someoneelse1984]

Let’s assume I minded my compulsory military service enough to go to court. I decide to go to the ECHR and complain that only men have to serve. The ECHR agrees and makes Norway change the policy so both women and men have to serve. Resulting change for me… well, I still have to serve my compulsory military service, only now half my fellow soldiers are women, and they’re all angry with me.

But what if you didn’t mind the idea of military service itself but you hated the sexual inequality aspect? I’m sure that people who think like that are a minority but it only takes one of them to go to court.

[shefDave]

Would that mean if a member state had the death penalty for men but not for women (or vice versa) it would not be in breach of Article 2 of the convention?

On the original wording of Art.2, probably. However, since then Protocols 6 and 13 have completely abolished the death penalty in member states.

[JRDelirious]

@Priceguy

You’ve answered your own question. Human rights shall be enjoyed without sex-based discrimination, but freedom from conscription is not a human right according to the Convention, so you can discriminate based on sex as much as you like.

I’m with Priceguy on this one. Besides, even in Europe, a court is unlikely to say that the military is but one more government agency and must follow the same personnel rules as the Patent Office or the School Districts.

Much as we may either (depending on our ideology) wish it were otherwise, or perceive that it is too far otherwise, most Courts in countries where there exists a rule of law will tread gingerly on cases that may require to throw out the general cultural mores, or tinker with an important functioning structure of the state, for the sake of a sociopolitical ideal – unless they can find a very compelling reason that can be supported constitutionally.