Case Notes
| Published date | 01 October 2015 |
| Date | 01 October 2015 |
| DOI | 10.1177/1023263X1502200506 |
| Subject Matter | Case Notes |
22 MJ 5 (2015) 751
CASE NOTES
REFUGEE STATUS TO CONSCIENTIOUS
OBJECTORS TO MILITARY SERVICE
Case C-472/13 Andre Lawrence Shepherd v. Bundesrepublik Deutschland,
EU:C:2015:117.
K H*
§1. GENERAL OBSERVATIONS
e judgment of the Court of Justice of t he European Union (CJEU) in Shepherd1 is of great
practical and t heoretical importa nce. For decades whether and under what conditions
prosecution of conscientious objectors refusing military ser vice triggers refugee status
has been the subject of a controversial debate on the proper interpretat ion of the Geneva
Convention as a dynamic instrument.2 Although the judgment of the Court doe s not
decide on the question of a human right of conscientious objection against military
service, the judg ment is relevant for the Court’s understanding of whether prosecution
of refu sal to mi litar y serv ice may be con sidered as an infr ingement of r efugee pro tection
as a human right.
Mr Shepherd, a professional America n soldier, working as a helicopter mechanic w ith
the US forces in Germany, had refused to follow an order to retur n to Iraq where he had
previously been stationed. He applied u nsuccessful ly for asylum on the ground that he
did not want to participate i n a war which he considered as illegal a nd which in his view
carried the r isk to be involved in the commission of war cri mes. e case wa s exclusively
about recognition of refugee statu s. Mr Shepherd has for some years been in possession
of a German settlement permit3 and does not face a risk of deportat ion. e questions
asked by the referring Administrative Court of Munich were on the interpretation of
Article9 of the Qua li cation Directive.4
* Professor eme ritus of Europ ean law, Public Inte rnational L aw and Public Law, Univ ersity of Konsta nz,
Germany.
1 Case C-472/13 Andre Lawrence She pherd v. Bundesrepublik Deut schland, EU:C:2015:117.
2 A. Zimmermann and C. Mah ler, e 1951 Convention Relating to th e Status of Refugees and its 1967
Protocol (OUP, 2011), p.434–438.
3 See Bundesamt f ür Migration und Flüc htlinge, Entscheiderbr ief 5/2015, p.9.
4 Directive 2011/95/EU of the Euro pean Parliame nt and of the Council of 13Decemb er 2011 on standards
for the quali cation of third-cou ntry nationa ls or stateless pers ons as bene ciaries of international
Kay Hailbronner
752 22 MJ 5 (2015)
§2. GENEVA CONVENTION AND CONSCIENTIOUS
OBJECTORS
e Court notes, (usually at the begi nning of its judgments) on the criteria of recognition
of refugee status under t he Quali cat ion Directive, that t he
Geneva Convention const itutes the cornerstone of t he internationa l legal regime for the
protection of refugees and that the provisions of that directive5 for determining who qual i es
for refugee statu s and the content thereof were adopted to guide the c ompetent authorities of
the Member States in t he application of that convention on the basi s of common concepts and
criteria.6
One of the lessons of the Shepherd judgment is that this statement does not necessari ly
mean that the Cour t will be following trends in international ref ugee law to base the
European concept of refugee protection on general human rights considerations.
Although the context of the Quali cation Directive is ‘essentially humanitarian’, the
Court remains st rictly within the con nes of the Qua li cat ion Directive and refuses any
temptation to ‘upload’ the Quali cation Directive with human right pronouncements
derived from the European Court of Human Rights jur isprudence on a human right
to conscientious objection or Art icle 10(2) of the European Charter of Fundamenta l
Rights7 which provides that the ‘right to conscientious objection is recog nised, in
accordance with the national laws governing the exercise of this right’. It is Article9 of
the Quali cation Directive which sets out the factors which support a nding that acts
constitute persecution within the meaning of Article 1(A) of the Geneva Convention
(rather than general human r ights observations). e sentence, although it sounds almost
self-evident, delivers the message that it is the EU legislature8 that de nes the concept
of refugee protection withi n the framework of international law. is is an encouraging
step forward for those who still believe that it is the ta sk of the courts before others to
interpret the existi ng law rather than create and develop the law.
protection, for a uni form status for refu gees or for persons elig ible for subsidiary prote ction, and for the
content of the protection g ranted, [2011] OJ L 337/9.
5 Referring to Di rective 2004 /83 which has been repla ced by the Direct ive 2011/95 without any signi cant
changes wit h respect to the provisions rele vant in the Shepherd judgment. Direc tive 2011/95/EU of the
European Parl iament and of the Cou ncil of 13Dec ember 2011 on standards for the qu ali cation of
third-count ry nationals or stateles s persons as bene ciaries of internationa l protection, for a uniform
status for refuge es or for persons eligible for su bsidiary protec tion, and for the content of the prote ction
granted, [2011] OJ L 337/9.
6 Case C-472/13 Andre Lawrence She pherd v. Bundesrepublik Deut schland, para. 22 .
7 Charter of Fund amental Rights of t he European Union, [2012] OJ C 326/391.
8 e C ourt refers repeatedly to t he intention of the EU legislature for t he interpretation of Art icle9 of
the Directi ve, see Case C-472/13 Andre Lawrence Shepherd v. Bundesrepublik Deutschland, para . 33, 37
et seq.
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