Year: 2026
Type: article
Abstract: The article examines the right of a state to derogate from its human rights obligations during war as an exceptional mechanism of international and constitutional law applied in situations of public emergency. It is argued that derogation does not mean the abolition of human rights or the release of the state from the obligation to act within the limits of law. Rather, it constitutes a special legal regime of temporary, proportionate, and controlled restriction of certain guarantees. The study focuses on Article 15 of the European Convention on Human Rights, Article 4 of the International Covenant on Civil and Political Rights, Article 64 of the Constitution of Ukraine, and the Law of Ukraine “On the Legal Regime of Martial Law”, which together form the normative basis for permissible derogation in crisis conditions. The article identifies the key criteria for the lawfulness of derogation, including the existence of war or another public emergency threatening the life of the nation, strict necessity, proportionality, temporariness, non-discrimination, consistency with other international obligations, and proper international notification. The article distinguishes derogation from ordinary restrictions on human rights and from constitutional limitations introduced under martial law. Particular attention is paid to the case law of the European Court of Human Rights, especially Lawless v. Ireland, Brannigan and McBride v. the United Kingdom, Aksoy v. Turkey, A. and Others v. the United Kingdom, Mehmet Hasan Altan v. Turkey, and Şahin Alpay v. Turkey, as these judgments shaped the standards for assessing emergency measures. The article emphasizes that even in wartime the state does not enjoy unlimited discretion, since derogation remains subject to both international and domestic legal control. Special attention is also given to the non-derogable core of human rights, which cannot be restricted under any circumstances, and to the interaction between international human rights law and international humanitarian law. It is demonstrated that the issue of derogation is especially relevant for Ukraine in the context of the full-scale war, martial law, and the need for continuous reassessment of the scope of restrictions in accordance with the actual security situation. The article concludes that lawful derogation is possible only if the rule of law, effective judicial protection, parliamentary and international control, and compliance with international humanitarian law are preserved.
Source: Art of Justice
Author: Олег Андрухів
Institution: King Danylo University
Language: Ukrainian
Field: Social Sciences
Domain: Social Sciences
Open Access status: hybrid
OpenAlex ID: W7204204900