A/62/280 58. The Special Rapporteur has referred to the right to conscientious objection to military service on numerous occasions when examining the application of domestic legislation vis-à-vis persons in their countries of origin seeking to exercise such a right. This right is also addressed by the Guidelines in the slightly different context of when a refusal to perform military service may give rise to a well-founded fear of persecution for the purposes of the 1951 Convention. Citing provisions of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, 25 the Guidelines provide that refugee status may be established if the refusal to serve is based on genuine political, religious, or moral convictions, or valid reasons of conscience. A law of general application may be persecutory where it impacts differently on particular groups, where it is applied in a discriminatory manner, or where the punishment is excessive or disproportionately severe or where it cannot reasonably be expected to be performed by the individual because of his or her genuine beliefs or religious convictions (para. 26). 26 Alternatives to community service would not usually be the basis of a claim unless they are so excessively burdensome as to constitute a form of punishment (ibid.). 59. Under international human rights law the legal basis of the right to conscientiously object may derive from article 18 of the International Covenant on Civil and Political Rights. The Human Rights Committee affirmed that “the Covenant does not explicitly refer to a right to conscientious objection, but the Committee believes that such a right can be derived from article 18, inasmuch as the obligation to use lethal force may seriously conflict with the freedom of conscience and the right to manifest one’s religion or belief”. 27 In 1998, the Commission on Human Rights encouraged States, subject to individuals satisfying the requirements of the definition of a refugee as set out in the 1951 Convention, “to consider granting asylum to those conscientious objectors compelled to leave their country of origin because they fear persecution owing to their refusal to perform military service when there is no provision, or no adequate provision, for conscientious objection to military service. 28 Furthermore, international and regional organizations have pointed out that persons performing military service may develop conscientious objections over time. 29 60. A report by the Office of the United Nations High Commission for Human Rights on best practices in relation to conscientious objection (E/CN.4/2006/51, para. 58) states: UNHCR has observed that a significant number of States are ready to provide international protection to conscientious objectors, draft evaders and deserters. States have recognized that conscientious objection, which may, inter alia, be expressed through draft evasion and desertion, can arise from a political __________________ 25 26 27 28 29 07-48490 See UNHCR Handbook, op. cit., para. 170. See also ibid., para. 169. Human Rights Committee, general comment No. 22 (1993), reprinted in HRI/GEN/1/Rev.8, sect. II (para. 11). See also the views of the Human Rights Committee concerning communications Nos. 1321/2004 and 1322/2004 (Yeo-Bum Yoon and Myung-Jin Choi v. Republic of Korea) (CCPR/C/88/D/1321-1322/2004). Official Records of the Economic and Social Council, 1998, Supplement No. 23 (E/1998/23), chap. II, sect. A, resolution 1998/77, para. 7. Ibid., preamble. See also the Special Rapporteur’s observations in E/CN.4/2006/5/Add.1, paras. 138-139 as well as Parliamentary Assembly of the Council of Europe recommendation 1518 (2001), para. 5 (i). 17