Compendium of Standards, Good Practices and Recommendations
the European Court of Justice essentially stated the same with respect to Directive 89/391
on health and safety at work.115
Even where military personnel are within the scope of domestic employment legislation,
they may be subject to special neutrality, confidentiality, anti-corruption or conflict of
interest provisions arising from the nature of their employment and status.116 Laws on
discrimination will usually apply to all professional sectors in a country, including the
military.117 In some states, the same applies to health benefits and other rights, such as
maternity leave and care.118
In legislating for the armed forces, parliaments can ensure that the rule of law is applied
not merely in the superficial sense of legal authority for the work of the armed forces, but
also in a deeper sense that the law governing the armed forces is clear, comprehensive,
consistent and in conformity with human rights standards. Moreover, legislation can be used
to set out in positive terms the civil, political and social rights of members of the armed
forces and their families. Similarly, where it is necessary to limit the rights of armed forces
personnel because of the nature of military life, legislation can ensure that such restrictions
are clear, follow a legitimate aim and are necessary, proportionate and non-discriminatory.
International Human Rights Standards
Laws governing the armed forces are especially important if the human rights of service
personnel are to be limited for reasons of national security. Any such restrictions should be
clearly based on legal authority and conform to relevant human rights treaty provisions.
In the OSCE Code of Conduct on Politico-Military Aspects of Security, OSCE participating
States committed themselves to “reflect in their laws or other relevant documents the
rights and duties of armed forces personnel” and to “ensure that military, paramilitary
and security forces personnel will be able to enjoy and exercise their human rights and
fundamental freedoms as reflected in OSCE documents and international law, in conformity
with relevant constitutional and legal provisions and with the requirements of service”.119
European Court of Justice in noting that the activities of such services under normal conditions can be organized in advance, including as relates to working hours and the prevention of safety or health risks. See
also: European Court of Justice (ECJ), Bernhard Pfeiffer and others v. Deutsches Rotes Kreuz, Kreisverband
Waldshut eV, C-397/01 to C-403/01, judgment of 5 October 2004, para. 57; and Personalrat der Feuerwehr
Hamburg v. Leiter der Feuerwehr Hamburg, C-52/04, Order of 14 July 2005, para. 46 (on the working time
and health and safety conditions for firemen).
115
Ibid., ECJ, Personalrat der Feuerwehr Hamburg v. Leiter der Feuerwehr Hamburg.
116
See, for example: Art. 303 of the Czech Labour Code, No. 262/2006 (21 April 2006).
117
In contrast to other laws, the Swedish Discrimination Act 2008:567 (5 May 2008) sets this out clearly in
Section 15.
118
The United Kingdom Employment Rights Act, op. cit., note 112.
119
OSCE, Code of Conduct on Politico-Military Aspects of Security, op. cit., note , paras. 28 and 32.
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