Human rights are one of the most important aspects of modern states, which always need to be protected, defended and ensured to the fullest extent possible. However, sometimes these rights can even be restricted, one of such cases is in the conditions of war. The relevance of the study of this topic has increased significantly since the beginning of the full-scale invasion of the Russian Federation into the territory of Ukraine at the end of February 2022. Therefore, in our opinion, this topic requires a full and comprehensive study.
In accordance with Article 1 of the Law of Ukraine "On the Legal Regime of Martial Law", martial law is a special legal regime introduced in Ukraine or in some of its regions in the event of armed aggression or threat of attack, threat to the state independence of Ukraine, its territorial integrity and provides for the provision of the relevant state authorities, military command, military administrations and local self-government bodies with the powers necessary to avert the threat, repel armed aggression and ensure national security, eliminate the threat of armed aggression, and ensure the national security of Ukraine.
According to Article 64 of the Constitution of Ukraine (Constitutional rights and freedoms of a person and citizen may not be restricted, except in cases provided for by the Constitution of Ukraine), certain restrictions of rights and freedoms may be established under martial law or a state of emergency, indicating the duration of these restrictions. The rights and freedoms envisaged by Articles 24, 25, 27, 28, 29, 40, 47, 51, 52, 55, 56, 57, 58, 59, 60, 61, 62, 63 of the Constitution of Ukraine cannot be restricted [2]. Some of these rights, the Basic Law of the state sees the right to life, respect for dignity, the right to housing, the right to marriage and others. It is also worth noting that the restriction of human rights and freedoms in wartime should be carried out not only in accordance with national legislation, but also in accordance with international law. Nevertheless, sometimes the norms of international law allow to restrict more rights and freedoms, including those specified in the Constitution of Ukraine as those that cannot be restricted.
The documents of international law that also contain provisions on the restriction of human and civil rights and freedoms are: Convention for the Protection of Human Rights and Fundamental Freedoms, European Social Charter (1961), European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (1987). It is also worth noting that the human rights system and international humanitarian law complement each other in many ways. For example, both pay special attention to children recruited as combatants and recognize the need for special protection of children caught up in armed conflict [3]. Parties to armed conflicts must adhere to the principles and rules of war, but, unfortunately, legal provisions are not always implemented when such hostilities are launched.
A human being is the greatest social value, his/her rights are one of the most important issues to be addressed in the first place. However, in the conditions of war, fundamental human rights may become even defenseless, and some of them may be restricted. In our opinion, the protection of such rights is primarily entrusted to the state, but not always the state is able to resist the enemy in war and fully ensure the realization of fundamental human rights and freedoms. Therefore, we believe that Ukraine should find new models of human rights activities.
Literature:
1. On the legal regime of martial law: Law of Ukraine of 12.05.2015 № 389-VIII. URL: https://zakon.rada.gov.ua/ laws/card/389-19.
2. Constitution of Ukraine: The Basic Law of Ukraine of 28.06.1996 No. 254к/96-ВР. Information of the Verkhovna Rada of Ukraine. 1996. No. 30. p. 141 URL: https://zakon.rada.gov.ua/laws/ show/254%D0%BA/96-%D0%B2%D1%80#n4363 (accessed 29.07.2022).
3. Shcherbina M. Protection of human rights in armed conflict. Collection of abstracts of the round table dedicated to the 72nd anniversary of the Universal Declaration of Human Rights (Kyiv, December 10, 2020). Kyiv: Scientific Research Institute of the Ministry of Internal Affairs of Ukraine, 2021. 165 с.
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