Borysov Y. States’ Derogation from International Human Rights Obligations: Theory and Practice

The dissertation is devoted to the international legal mechanisms of lawful retreat (derogation) of states from their own human rights obligations. The work reflects the development of the European scientific and philosophic doctrine on the nature of states’ obligations, including the treaty ones, of the derogation from such obligations and of its non-execution. There is proved that as minimum since the ХVІІІ century states foresaw the possibility of the derogation from their treaty obligations for humanitarian issues, such as defence the non-combatants, exchanging the prisoners of war, fishermen’s and merchants’ interests. The evolution of the understanding of the legality of the derogation of states from their own international obligations, the reflection of such derogation by the modern law of international treaties and by the practice of resolving disputes concerning the legality of the derogation of states from such obligations are also studied. The specifics of the derogation of states under universal and regional treaties in the field of human rights are defined; the procedure and legal consequences of Ukraine’s derogation from its own international human rights obligations in the context of armed conflict are described. The practice of assessing the legality of the derogation of states from their obligations in the activities of international courts and convention bodies is described. The key requirement for the correlation of the requirements of international humanitarian law and human rights under the conditions of the derogation is noted, and it recognizes the key role of observance the procedural rights and guarantees in those processes of derogation. It is proved that the mechanisms of derogation under the International Covenant on Civil and Political Rights, the American Convention on Human Rights, the Convention for the Protection of Human Rights and Fundamental Freedoms have major practical importance for the modern international law.