The thesis addresses the specific features of the limitation of human rights understood as State activity aimed at narrowing the content and/or scope of human rights in armed conflicts, based on the case-law of the European Court of Human Rights (ECtHR). The aim of the thesis is to develop a theoretical model of the limitation of human rights grounded in Convention standards and to test its applicability to rights-limiting practice in armed conflict. For the first time, a procedural model of the national limitation mechanism is proposed as a sequence of the stages of establishment, preconditions and application of a limiting instrument, complemented by a two-stage model of the control mechanism (national and subsidiary Convention control). The interaction of these mechanisms is shown to be cyclical: a finding of a violation obliges the State under Article 46 ECHR to revise the limiting instruments and thereby returns the mechanism to the stage of establishment, so that the ECtHR is not merely a body of control but also one that predetermines the content of future limitation standards. The Convention limiting instruments are systematised by the normative structure of the ECHR (absolute, relative, the derogation-instrument under Article 15, the reservation-instrument under Article 57) and are shown to form a system in which the instruments of Articles 2, 3, 4 and 5(1) are core, while in armed conflict the instruments operate cumulatively. The armed conflict is qualified as a meta-limit of human rights, and derogation under Article 15 ECHR as a meta-instrument that alters not the content of a particular right but the normative regime governing all other instruments. A distinction is drawn between the jurisdiction of the State under Article 1 as factual authority over persons and territory and the competence of the ECtHR under Article 32 to interpret and apply the Convention, and the grounds of the State’s jurisdictional link in armed conflicts are systematised. The dualism of the role of the victim State of armed aggression, which is at once an object of aggression and a limiter of human rights on its own territory, is substantiated, and the asymmetry of Convention control in the cases concerning the aggression of the Russian Federation against Ukraine is demonstrated. The applicability of the model is tested against the ECtHR case-law concerning eight armed conflicts involving States Parties to the ECHR. On the basis of the identified shortcomings, proposals for improving Ukrainian legislation in the light of Convention standards are formulated.
Keywords
aggression, European Convention on Human Rights, European Court of Human Rights, armed conflict, international humanitarian law, international human rights law, limitation of human rights, occupation, human rights, jurisdiction.
