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DOI: https://doi.org/10.34069/AI/2023.69.09.8
How to Cite:
Kuchyk, O., Medvid, L., Loskutov, T., Vovk, M., & Aharkova, O. (2023). International mechanisms for the protection of human
rights under martial law. Amazonia Investiga, 12(69), 94-105. https://doi.org/10.34069/AI/2023.69.09.8
International mechanisms for the protection of human rights under
martial law
Міжнародні механізми захисту прав людини в умовах воєнного стану
Received: August 8, 2023 Accepted: September 10, 2023
Written by:
Oleksandr Kuchyk1
https://orcid.org/0000-0001-9767-9520
Liudmyla Medvid2
https://orcid.org/0000-0002-0035-9748
Tymur Loskutov3
https://orcid.org/0000-0002-2686-9201
Mariia Vovk4
https://orcid.org/0000-0002-8740-8222
Olha Aharkova5
https://orcid.org/0000-0002-6236-4198
Abstract
Human rights are fundamental to any just and
equitable society. However, under martial law
conditions, protecting them can be a challenge.
However, in practice the situation of internal armed
conflicts and violence is the largest threat and
obstacle to their implementation. Hence, the
perspective to the protection of the right to life
during an armed conflict is based predominantly on
the norms and regulations of international
humanitarian law, which safeguard protection only
to persons thereunder. The purpose of this article is
to work out the priority measures for the protection
of human rights in the conditions of martial law
drawing on the insight into the foreign experience.
To address the said goal, the present article utilized
cognitive dialectical methods, the method of
idealization, formalization and modeling of the
response strategy in case of human rights violation.
Because of the conducted study, a response strategy
was elaborated in case of human rights violations
under war conditions. The findings of this article
are important for lawyers, public officials, and civil
1
PhD in History, Associate Professor, Head of the Department of International Security and Strategic Studies, Faculty of International
Relations, Ivan Franko National University of Lviv, Lviv, Ukraine. WoS Researcher ID: V-3673-2018
2
PhD in Law, Associate Professor, Department of Military Law and Law Enforcement, Institute of Strategic Communications,
National Defense University of Ukraine, Kyiv, Ukraine. WoS Researcher ID: DHE-0939-2022
3
Doctor of Law Sciences, Professor, Professor of Department of Criminal and Legal Disciplines, Kryvyi Rih Educational and
Scientific Institute, Donetsk State University of Internal Affairs, Kryvyi Rih, Ukraine. WoS Researcher ID: AAZ-3046-2021
4
Candidate of Juridical Sciences, Associate Professor, Department of Civil Legal Disciplines, Institute of Law, Lviv State University
of Internal Affairs, Lviv, Ukraine. WoS Researcher ID: ADJ-3397-2022
5
PhD in Law, Аssociate Professor, Department of the Police Activity, Faculty of Specialists’ Training for National Police Units,
Luhansk Educational and Scientific Institute named after E. O. Didorenko, Donetsk State University of Internal Affairs,
Ivano-Frankivsk, Ukraine. WoS Researcher ID: IAN-5984-2023
Kuchyk, O., Medvid, L., Loskutov, T., Vovk, M., Aharkova, O. / Volume 12 - Issue 69: 94-105 / September, 2023
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society organizations working to protect human
rights under conditions of martial law, seek to
administer the standards and practices of
international regulation of universal human and
citizen rights in individual administrative cases.
Keywords: martial law, human rights, strategy,
foreign experience, restrictions on human rights.
Introduction
Following the military occupation of the Russian
Federation, Ukraine officially notified
international bodies that it renounced its civil and
political obligations under the European
Convention on Human Rights and the
International Convention on Human Rights. This
is due to the need for bolstered military service,
restrictions on private life, freedom of religion
and expression, the right to peaceful assembly,
the right to effective defense, the right to
property, the right to education and the right to
freedom of movement. The introduction of
martial law imposed certain restrictions on
citizens’ lives, which had nothing in common
with the abolition of absolute rights.
The ground for the emergence of contemporary
mechanisms of international human rights
protection is the interaction of its two sources:
the Geneva Convention of 1949 and the Hague
Convention of 1907. The law of The Hague, or
martial law, establishes the rights and obligations
of the parties at war in relation to their enemies
and restrict the likelihood of harm. Current
Geneva legislation is based on four Conventions
for the Protection of War Victims signed on
August 12, 1949, namely the Convention on the
Recruitment of the Wounded and Sick dated June
8, 1977, the Convention on the Improvement of
Care of the Wounded and Sick at Sea, the
Convention on the Treatment of Prisoners of War
dated 12 August 1949. These laws comprise a
set of laws designed to protect human rights
during armed conflict. Notably, its application is
mandatory regardless of whether the conflict is
international (involving two or more states) or
non-international (within one state).
The purpose of this article is to analyze and
improve the national mechanisms for the
protection of human rights in Ukraine under
martial law based on the development and
implementation of primary response measures in
the event of citizens' rights violation.
Based on the purpose set, the following tasks
were addressed:
− analyze basic human rights that are ensured
and protected at the national and
international levels;
− distinguish the system of restrictions on
human rights in the conditions of martial
law;
− develop the strategic areas of response in
case of human rights violation;
− select the main areas of improvement in the
national system of human rights protection
in the conditions of the military invasion of
the Russian Federation in Ukraine.
Literature Review
In the twenty-first century, the human rights
agenda in public discourse, including the issue of
raising awareness about international human
rights law, has been gaining its significance and
relevance. Given the current events worldwide,
such as emergency situations, the urgency and
demand for legislation and protection of human
rights is becoming more and more critical. These
events are likely to create or contribute to the
conditions that are associated with the violation
of human rights, above all the rights of the
individual. Atadjanov (2023) claims that the
concept of human rights is often perceived as
social, moral, political, international and
diplomatic phenomenon. However, it must be
borne in mind that human rights also have a legal
dimension. For instance, Perkumienė et al.,
(2022) argue that all rights arise in certain
historical circumstances, they are personally
approved by people’s will, or accepted and
recognized by certain traditions, institutions and
bodies, or historically conditioned theories of
human needs and aspirations, or human ideas
about divine plan and purposes.
Human rights have two important features. On
the one hand, they are indivisible – that is, they
relate to human nature lifelong, from birth to
death (Aliaga Guevara et al., 2022; Berman,
2019; Tomz & Weeks, 2020; Gryshchenko et al.,
2021). The state does not grant rights to people
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by legislating them, but only creates concepts
and takes care of their protection. Therefore, the
state cannot arbitrarily limit or abolish rights, this
can only be implemented in accordance with the
procedure established by law pursuant to the
international standards for the protection of
human rights (Guild et al., 2019; Reglitz, 2020;
Semenyshyn et al., 2020).
On the other hand, citizens of the country are
entitled to identical legal rights, that is, they
enjoy the same rights and are all equal before the
law (Madumarov & G’ulomjonov, 2021). In fact,
the concept of equality is quite close to the
meaning of non-discrimination (Strand, 2019;
Rodrigues, 2020). Practice has basically
demonstrated that it is possible to establish a
legal order that does not contain discriminatory
provisions. However, it is not virtually possible
to elaborate the second condition of equality - a
system where everyone is equal before the law.
No right is considered absolute and unlimited
(with the exception of freedom from torture,
slavery and freedom of thought). A democratic
society has admissible limits that arise for
objective reasons or are necessary to ensure the
self-preservation of society (Hofman et al., 2019;
Lawson & Beckett, 2021; Orwin & Pangle,
2019).
Restrictions relate to the level of socio-economic
and social development. Thus, McCamant (2019)
maintains that the nature of human rights concept
means that it cannot be measured or addressed in
terms of societal development, although
development may include the creation of
institutions that can more effectively tackle
human rights violations.
The rights and freedoms of one person are
limited by the rights and freedoms of another
person. In other words, a person can use his rights
as they deem it possible, as long as they do not
violate the rights of others. Such scholars as
Zuiderveen Borgesius and Steenbruggen (2019)
analyzed the origins of the law to assess the
rationale for its protection. To this end, it was
determined that this right is currently protected
by the European Convention on Human Rights
and the legislation of the European Union.
Thus, the relevance of the study is determined by
the need to establish the degree of interaction of
universal rights and freedoms of the individual in
civil and international law, as well as the
possibility of limiting state sovereignty in the
implementation of international obligations to
ensure and safeguard people’s rights.
Methodology
This study is designed to assess the hypothesis
that in the conditions of introducing martial law,
human rights may be limited at the legislative
level.
In order to systematically study human rights in
the pre-war period and after the full-scale
invasion of Russia into Ukraine, the article
summarizes the human rights that are absolute
and cannot be limited and highlights the rights
that are subject to limitation. This analysis makes
it possible to systematize and distinguish such
human rights that may be violated in order to
formulate recommendations regarding appeals in
the event of the need for restoration thereof.
In the course of the current study, dialectical
cognitive methods were used, predominantly the
principles of systematicity, which enabled to
analyze the human rights restriction degree in the
conditions of martial law. With that in mind,
legislative and regulatory documents were
scrutinized in terms of ensuring human rights at
the international and national levels.
Taking into account the specific features of the
research object, the approaches to the analysis
focused on an interdisciplinary approach. From
this perspective, it was possible to combine the
degree of human rights restriction, which are
specified in international documents,
predominantly those of the European Union, as
well as national legislative documents.
Depending on the degree of threat, the speed of
response to messages is determined. According
to the analyzed documents, restriction of human
rights is not allowed. If a person's rights and
freedoms are violated, including during the
period of martial law, a person can seek help
from national human rights protection bodies or
international protection.
The article applies methods of idealization and
formalization in terms of forming approaches to
the protection of human rights in the conditions
of martial law in case of their violation. In the
course of the current research, an analysis of
applying the norms of national and international
law in the conditions of martial law was carried
out, and the universal and regional components
of the approaches. Besides, the response actions
in case of human rights violations were
identified.
The modeling method in the article is used to
develop strategic courses of action in case of
human rights violation in Ukraine and to improve
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mechanisms for ensuring and protecting human
rights. This strategy provides for the
identification of citizens' actions algorithm in
case of human rights violation. Furthermore, it
enables to highlight the primary measures taken
by the state regarding the introduction of priority
actions to enhance mechanisms for human rights
protection in the conditions of martial law. The
main restrictions on the use of data are temporary
unavailability for execution, for example, due to
the occupation of a certain territory. In all other
cases, the rights and freedoms of citizens are of
primary importance and must be protected
immediately.
Results
Under the conditions of martial law, one of the
reform objectives is to improve the system of
democratic civil control of the Security Service
of Ukraine, in particular, to ensure that its work
complies with the requirements of the
Constitution of Ukraine and current legislation,
and to prevent violations of human and citizen
rights and freedoms. Frequently, the basic human
right, the right to life, appears to be vulnerable
during war. Moreover, health problems caused
by injuries and drug shortages violate the human
right to health care.
Table 1 presents human rights that are absolute
and limited during martial law.
Table 1.
Absolute and limited human rights under martial law (developed by authors)
Rights that are not subject to restriction during martial law (absolute rights)
the legally enshrined equality of constitutional human rights, the right to citizenship, the right to life, the right to
housing, the right to free marriage, the right to judicial protection, the right to compensation for damages, the right
to disobey explicitly unlawful orders
The rights that can be limited
housing integrity
the right to work
the right to education
confidentiality of correspondence,
telephone, telefax communication
intrusion in personal and family life
the right to freedom of thought
the right to manage state affairs
the right to possess, utilize and dispose
of one's own property
the right to engage in any commercial
activity
the right to strike in order to protect
economic and social interests
Changes for
able-bodied
persons
use of
capacities
and labor
resources of
enterprises
verifying persons’
documents, carrying out
inspections of items,
vehicles, luggage and
cargo, office premises
and housing
forced
alienation of
property for
the needs of
the state
prohibition of
holding peaceful
meetings, rallies,
marches and
demonstrations,
other mass events
introduction
of curfew
Changes in
the sphere
of education
form of
educational
activity
coverage of information
about the educational
institution
communication with the
participants of the
educational process
presentation of public
information
Other
restrictions
limitation of the right to collect
and disseminate information
use of air space
consent to photo and video recording
In a democratic society, human rights may be
limited by law to meet the requirements of public
order and the common wellbeing. According to
the current legislation of Ukraine, illegal
restriction of a person’s rights and freedoms is
not allowed and entails legal responsibility. As a
matter of fact, in the event that the Security
Service of Ukraine violates human rights and
freedoms during the performance of their official
duties, it is necessary to undertake measures to
restore the said rights and freedoms, compensate
for the moral and material damage caused, and
bring the offenders to justice. According to the
Constitution of Ukraine, citizens can undertake
measures to protect their rights and freedoms.
Table 2 examines basic human rights and the
degree of their possible restriction under martial
law.
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Under martial law, national or international law
protects people whose rights or freedoms are
violated, representatives of human rights
organizations, human rights experts, as well as
the researchers. During the war, international
forms and methods of human rights protection
were included in the regulatory documents of
international humanitarian law. The ratification
of the Geneva Conventions by Ukraine is an
additional basis for applying the provisions of the
Criminal Code of Ukraine, which foresee the
responsibility for war crimes. That being said,
according to the aforementioned Geneva
Conventions of 1949, which comprise an integral
part of the national legislation of Ukraine, states
are obliged to investigate and prosecute serious
violations of international humanitarian law. In
the norms of international humanitarian law, the
text of the convention maintains that states are
obliged to prosecute persons who committed war
crimes, and European human rights laws are
obliged to prosecute the most serious violations
of human rights.
Table 2.
Human rights under martial law
Human right
Scope
Application
Limitation
The right to
life
to ensure the protection of
every person against
intentional deprivation of
life
does not apply when it is necessary to
take a person's life to protect another
person, to arrest or prevent escape, to
prevent riot or lawlessness
These rights cannot be limited or suspended regardless of external
conditions, as well as the possibility of their implementation and
realization. The state and all its bodies are obliged to ensure them
and, in case of violation, make maximum efforts to punish those
guilty of the crime. If the state does not fulfill its obligations, the
person can appeal to the European Court of Human Rights.
The right to
freedom and
personal
integrity
no one can be deprived of
liberty, except under special
circumstances and in
accordance with the law
may be limited if serious negative
consequences are prevented, such as
the further escape of the detainee or
the spread of infectious diseases
The right to a
fair trial
access to justice, the right to
confront witnesses, test
court decisions, free
interpreter assistance
this right is not limited, it must be
exercised at all levels and in
accordance with all persons, both
residents of the country and foreign
citizens
The right to
respect for
private and
family life
no one may be subjected to
intrusion into personal or
family life, family integrity
and correspondence, social,
national and public security
relations
aimed at preventing civil disorders or
criminal offenses, protecting the legal
and democratic or general economic
welfare indispensable for health or
morals, or safeguarding other rights
and freedoms
The right to
marriage and
the equality of
spouses
every man and woman of
marriageable age has the
right to marry and divorce
this right extends to the equal right of
spouses to joint custody of their
children, limited to the purpose of
protecting the spouses’ interests
is limited to the
implementation of law-
making procedures
The right to
freedom of
thought,
conscience
and religion
the right of every person to
practice his religion publicly
or privately, independently
or collectively
may be subject to legal restrictions to
protect public safety, public order,
health, morals
is limited in case of
abuse and imposition
on other persons
The right to
freedom of
expression
includes the freedom to
express opinions, receive
and disseminate infor-
mation, ideas without
interference from state
authorities
to ensure national security, territorial
integrity or safety in society,
prevention of civil unrest and mass
crimes, protection of health or morals
prevention of
disclosure of
confidential
information, protection
of court jurisdiction
The right to
freedom of
assembly and
association
the right to peaceful
assembly and association,
and the right to start and join
trade unions for the
protection of individual
interests
is limited to the necessity of national
security, public order, crime prevention,
health, morals, as well as for the
protection of individuals in a
democratic society, rights and freedoms
of others
laws may restrict
members of the armed
forces, police or
government from
exercising the above-
mentioned rights
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The right to
property
protection
every natural or legal person
has the right to peacefully
dispose of their property
is allowed only in the interests of
society and in accordance with the
law and general principles of
international law
state restrictions
regarding the use of
property
The right to
education
no one can be deprived of
the right to education
the state protects the right of parents
to obtain education in accordance
with religious and other beliefs
is limited to forms of
provision
Freedom of
movement
every person has the right to
move freely and choose ther
place of residence
when it is not required to ensure
national security, maintain public
order, prevent crimes
anyone can leave the
country, including with
their people
(developed by authors)
In accordance with Articles 2 and 3 of the
Convention on the Protection of Human Rights
and Fundamental Freedoms, the state must
ensure the observance of rights and freedoms, as
well as provide criminal procedural guarantees
for the protection and realization of these rights
and freedoms. That being said, an effective
judicial system in these cases requires the
application of punitive measures. The European
Court of Human Rights has not restricted the
application of international humanitarian law to
armed conflicts. In its verdict, it had to answer
whether the country violated the Convention for
the Protection of Human Rights and
Fundamental Freedoms.
Drawing on the considered mechanisms for
ensuring human rights in the conditions of
martial law, it is possible to pur forth the action
plan as far as the observance and protection of
human rights during war is concerend (Figure 1).
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Figure 1. Mechanism of action in case of violation of human rights under martial law
(build by authors)
In compliance with European requirements for
the protection of human rights, Ukraine has
approved feasible measures to protect the rights
of its citizens.
First, submission of a proposal to the Verkhovna
Rada of Ukraine. The proposal establishes the
need to renew the Rome Statute of the
International Criminal Court. Such restoration of
legislation will allow national legislative bodies
to respond to the challenges of armed conflicts.
However, there is no concept of "crimes against
humanity". The criminal legislation of Ukraine
provides that they were committed by the Armed
Forces of the Russian Federation on the territory
of Ukraine. Furthermore, the concept of a war
crime should also be specified.
Second, the state should verify students’
qualifications in the occupied territories
according to the Ukrainian model and give them
the opportunity to receive diplomas. In addition,
it is necessary to simplify the process of issuing
documents for working Ukrainians. Importantly,
this procedure should be administrative in nature.
Third, there is a need to provide comprehensive
medical, social and psychological assistance to
Ukrainian soldiers, citizens and their families.
Universal organizations for the protection of human rights
The jurisdiction of universal human rights bodies applies to several countries of the world, to those countries that are
parties to relevant international universal human rights treaties. In the limited sphere of international human rights
bodies, monitoring powers are not necessarily related to the state's participation in international agreements. None of the
universal international human rights bodies is a full-fledged international judicial institution.
Judicial bodies
Created in accordance with international agreements to
control compliance by the participating states of these
agreements and act similar to court procedures
Conversion bodies
Institutions created in accordance with international
agreements to supervise the implementation of these
agreements in the participating countries, which are
mainly of a political and legal nature.
Human Rights Commission
A universal body whose powers do not depend on the state's participation in international human
rights treaties.
Regional international human rights mechanisms
Mechanisms are established by international agreements of individual groups of countries, primarily in
geographical areas. Europe is now creating regional human rights protection mechanisms. In the USA,
according to the American Convention on Human Rights of 1978; in Africa, according to the 1981 African
Charter on Human Rights, regional human rights organizations extend their jurisdiction to member states of
relevant regional international human rights treaties.
Judicial authorities
Quasi-judicial bodies
Contracting authorities
National human rights protection system
Human rights violated
Аppeal to the intergovernmental portal
Аppeal to the National judicial authorities
Іssue resolved
Appeal to the European Court
Recording of offenses for International Human
Rights Organizations
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Fourth, submission of proposals to the Ministry
of Internal Affairs to change the method of
providing housing benefits in order to avoid
inspections. It is expedient to carry out
systematic coordination of local authorities and
public and international organizations in order to
improve procedures for the evacuation of citizens
from combat zones.
Discussion
Human rights and the European Convention on
Human Rights do not lose their relevance during
war. The literature review supports the principle
that states are obliged not to violate human rights
during war and armed conflicts. As in current
article, the authors emphasize that when the state
violates its obligations, everyone has the right to
demand compliance with their rights as well as to
appeal to the European Court of Human Rights.
From this perspective, Wise et al., (2021)
maintain that the nature of armed conflict
worldwide is extremely dynamic. In
consequence, protection must constantly adapt to
this ever-changing conflict environment.
However, unlike in the current article, the authors
consider new health threats, such as the COVID-
19 pandemic, and new opportunities, such as
modern trauma care, also created new challenges
and opportunities for humanitarian assistance. In
fact, the present research findings can be useful
in the event of harm to human health during
military conflicts.
The extensive bulk of literature on the topic
under study puts forward a thesis to the point that
one of the important issues that arise in current
circumstances is the prevention of human rights
violations. In the conditions of war, up to date
there are no developed mechanisms for
responding to of the citizens’ rights violations
(Bürgin et al., 2022; Carey & González, 2021;
Pereira Ortega & Peñaloza Nuñez, 2022). The
predominant bulk of scholarly inquiry is focused
on research into the preservation of human rights
in the post-covid period. To that end, Haggart
and Keller (2021) concluded that only by
considering legitimacy as a multifaceted
phenomenon based on democratic accountability
will it be possible to develop governance
platform models that will not only stand the test
of time, but will also be accepted by the people
whose lives they affect. This research will be
beneficial in the area of coordination of
regulatory regulation in case of violation of
human rights. For instance, Greitens (2020)
argues that international relations will need to
separate the pandemic's impact on democracy
from its impact on liberalism. Thus, the research
conducted in the post-war period can be adjusted
to the issues of restoring human rights in war and
post-war times.
Also, the limitations of this study are that
international mechanisms for the protection of
human rights, especially those created within the
framework of the UN, are only part of the
international legal system of protection. Such
scholars as Mejía Azuero, González Serrano, &
Castro Londoño, (2022), McGregor et al., (2019)
and Coynash and Charron (2019) maintain that
transparency, which is emphasized in the current
article, is fundamental to ensuring human rights,
but is not sufficient to address the harm to human
rights caused by the use of algorithms in
decision-making. On the other hand, Toussaint
and Martinez Blanco (2020) elaborated a human
rights-based approach as a strategic tool for
policymakers to strengthen international
responses to loss and damage. In contrast to the
strategy proposed in the current article, this
approach is based on the parties' existing
obligations under international and regional
human rights treaties and provides a method of
systematic integration of human rights that goes
beyond the simple inclusion of human rights in
the main field of activity. Costello and Mann
(2020), in contrast to the object of this study,
identified strategic limitations of human rights,
probed into the role of both international criminal
law and national tort law in ensuring
responsibility. That being said, the scholars
determined that citizens can be both victims and
violators and pose threats to other citizens.
Undoubtedly, this factor must be taken into
account in further research on this topic.
At the same time, there are unresolved issues
regarding the concept of international legal
documents regarding the provision and
protection of basic human rights. Ginsburg
(2020) examined international law and found
that, although formally neutral among regime
types, it was largely a product of post-World War
II liberal democracies. In the conducted studies,
there are no international standards that directly
define rights and obligations and international
monitoring and law enforcement bodies, basic
human rights and protection of citizens' rights.
Among such studies, we can mention the
scholars as follows: Rabinovych and Gawrich
(2023), who distinguish between global funds,
that is, funds created and used by the UN and the
international community, as well as regional
funds. This study will be beneficial in
determining the mechanisms of restoration of
human rights in the post-war period.
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Furthermore, Scoble and Wiseberg (2019) noted
that comparative study into international human
rights is an extremely complex undertaking; it is
also politically charged because human rights are
a political symbol of high positive influence, to
use Harold Lasswell's terminology (Espaliú
Berdud, 2019). Thus, agreeing with this author,
it is necessary to develop measures to protect
economic, social and cultural rights.
The international legal system of human rights
protection is constantly developing, which is
confirmed by the creation of new institutions in
the system. To that end, Caldeira (2019) and
Hathaway et al., (2019) conducted a study of the
democratic political systems and procedures that
developed dynamically in Latin American
countries such as Brazil, Argentina, Chile and
Uruguay, where dictatorships prevailed until the
1980s. The current study is beneficial in further
inquiries with the aim of forming a human rights
protection system.
Donnelly (2021) argued that the integration of
human rights into international peace and
security became part and parcel of the actual UN
activity. This study is limited to the statement
that international human rights policy adheres to
the mainstream of human rights, human rights
monitoring, humanitarian activities and peace
support.
Conclusions
In the conditions of martial law, the need to
protect human rights has considerably increased,
especially in relation to the right to life. Due to
the fact taht Ukraine is a subject of international
relations and, in particular, of the international
human rights protection system, it must adhere to
the norms and principles of international law
enshrined in the Charter of the United Nations,
the International Bill of Human Rights and the
Convention. on the protection of human rights
and fundamental freedoms, the Helsinki Final
Document, the Paris Charter for a New Europe
and other documents of the United Nations, the
OSCE and the Council of Europe. As a matter of
fact, Ukraine recognizes that universal human
values are higher than class values, and the
recognized norms of international law are higher
than domestic ones, and thus Ukraine recognizes
basic values such as human rights, democracy
and the rule of law, global peace and security,
economic freedom and national responsibility,
unity and solidarity, global integrity. However, in
modern conditions, Ukraine cannot effectuate
these obligations in full. Therefore, it is forced to
record violations, consolidate them and transfer
them to international organizations for the
safeguarding of human rights.
At the same time, the protection of human rights
and freedoms does not negate the need to
improve systems and mechanisms for the
realization of these rights and freedoms. These
questions remain important for legal research,
lawmaking, and police practice.
It should not be forgotten that the participants of
the current political process also demand
constitutional reforms. It is clear that the success
of their implementation directly depends on
whether the legislative power will be able to
include the ideas of democracy and the rule of
law, the ideas of democracy and the rule of law,
and the ideas of respect for man and society in
the draft constitution.
To that end, the European Court of Human
Rights undoubtedly plays an important role, as it
can receive appeals from people who suffered
from armed conflicts and whose rights cannot be
restored, or whose rights they believe cannot be
restored under national law. That being said, it
goes without saying that there are certain
restrictions on the types and types of cases that
the court hears. Therefore, there is a need to
create appropriate legal protection at the state
level. However, if states fail to realize their
obligations under the European Convention on
Human Rights, the role of the European Court of
Human Rights is to assist in tackling the problem.
The European Court of Human Rights underwent
significant changes after the Russian invasion of
Ukraine, as well as changes in the Council of
Europe, other international organizations and
Europe on the whole. Currently, the court is
faced with the issue what to do with 18,000
pending cases against Russia and choose an
appropriate strategy. Nevertheless, there is every
reason to believe that the European Court of
Human Rights will eliminate the backlog and lay
down the law in due time.
The European Convention on Human Rights is a
model for other mechanisms. The European
Court of Human Rights, the largest and most
comprehensive in the field of protection of the
right to life, does not directly apply the norms of
international humanitarian law, referring only to
its individual articles, which is its most
substantial achievement. The general test
presupposes a double review: the obligation to
evaluate the use of deadly force on a case-by-case
basis, rather than on a general basis, as well as
the establishment of strict standards of
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proportionality and absolute necessity to kill in
times of armed conflict, the Court wishes to
safeguard the right to life as a fundamental
human right.
There are certain difficulties with the
implementation of international human rights
standards into Ukrainian legislation. This is due
to the fact that the national legislation of Ukraine
does not clearly regulate the conditions for the
implementation of international agreements.
Some standards conflict with international legal
norms, and some are outdated. Let's not forget
about the shortcomings of our laws.
For example, according to Article 9 of the
Constitution of Ukraine, ratified international
treaties are part of national laws and, therefore,
do not have priority over national laws. In
addition, the second part of Article 9 of the
Constitution of Ukraine stipulates that in case of
contradictions between the provisions of the
Constitution of Ukraine and international
treaties, these contradictions are resolved by
making appropriate amendments to the
Constitution of Ukraine before adoption by the
Constitution of Ukraine. As for the procedure for
the implementation of international treaties,
separate procedures for the implementation of
international treaty rights should be regulated by
the laws of special national norms since the
standards do not directly affect the provisions of
international treaties, which creates a
problematic situation.
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