Why did Ukraine derogate some of its obligations to the Council of Europe?

May 15, 2024
In a letter dated April 4, 2024, Ukraine informed of a derogation from some international treaties. But is it as concerning as it sounds?

Ukraine is a Council of Europe member and follows the human rights standards outlined in the European Convention on Human Rights. Violation of these norms allows victims to apply to the European Court of Human Rights in Strasbourg. However, the Convention grants member states the right to declare a reasoned derogation from certain obligations in the event of special circumstances, such as martial law.

Russia's full-fledged war of aggression, which began on February 24, 2022, included the occupation of Ukrainian territories and the commission of crimes against humanity, leaving Ukraine unable to guarantee the compliance of human rights on seized territories.

It is important that the European Court of Human Rights evaluate the proportionality of actions, i.e., the need for specific actions. For example, while evacuating children from dangerous frontline areas is a necessary step, doing so during peacetime would be considered a violation of the law.

Alternatively, in dealing with the aftermath of Russia's destruction of the Kakhovka hydroelectric power station, the state may have violated the inviolability of housing law. And this mandate was only used to prevent worse outcomes or to save lives.

The first notification of Ukraine's derogation from the Convention and its Additional Protocols was sent in June 2015.

Since Russia occupied Crimea and certain areas of the Donetsk and Luhansk Oblasts in 2014, Ukraine has been unable to secure human rights in those territories and has notified the Council of Europe of the legal derogation via writing.

In a letter dated February 28, 2022, Ukraine's Permanent Representative announced a derogation from:

  • Article 4, paragraph 3 (Prohibition of slavery and forced labour),
  • Article 8 (Right to respect for private and family life),
  • Article 9 (Freedom of thought, conscience and religion),
  • Article 10 (Freedom of expression),
  • Article 11 (Freedom of assembly and association),
  • Article 13 (Right to an effective remedy),
  • Article 14 (Prohibition of discrimination),
  • Article 16 (Restrictions on the Political Activities of Foreigners) of the Convention,
  • Article 1 (Protection of property),
  • Article 2 (Right to Education) of the Additional Protocol,
  • Article 2 of Protocol 4 to the Convention (Freedom of movement)

The communication of the Permanent Representative of Ukraine dated April 4, 2024, only reiterates the content of previous communications while cancelling the previous derogation on freedom of thought, conscience, and religion, the right to an effective remedy, non-discrimination, and restrictions on the political activities of foreigners.

This means that the list of restrictions has actually narrowed rather than expanded.

In total, since independence in 1991, Ukraine has twice introduced the legal regime of martial law. The first time was in 2018, when Russia fired and seized Ukrainian ships in the Kerch Strait. However, it went relatively unnoticed; there were no curfews, evacuations, or mobilization measures.

The second time the regime was implemented in Ukraine was in 2022. However, when comparing these two cases, the level of threat is vastly different, necessitating a derogation from some provisions of the convention.

Following each extension of martial law, the Permanent Representative of Ukraine submitted a notification on the extension of the derogations specified in the letter dated February 28, 2022, without changing its contents.

However, given the urgency of the situation, the derogation may be reviewed and cancelled.

Other countries have repeatedly submitted notifications of derogations from their obligations under the Convention regarding the imposition of martial law in their countries, such as Azerbaijan in 2020 and Turkey in 1980.

Daria Synhaievska
Analyst and journalist at UkraineWorld