—Sergiy Panasyuk, Professor, Department of General Studies of the Ukrainian-American Concordia University and Department of law of the European University, Kyiv, Ukraine
After the full-scale Russian military invasion of Ukrainian territories, the President of Ukraine announced martial law and military mobilization, which were adopted by the Ukrainian Parliament and have been prolonged until August 23, 2022, and most likely will be extended until the end of the war. To avoid a lack of soldiers in the Ukrainian army and obligations to protect the country, the Ukrainian government banned the passing out of the country for almost all men from 18 to 60 was forbidden. Such a decision was also adopted because of the old soviet standards about men’s and women’s roles in society. Despite the Ukrainian Constitution being gender-neutral in this case, people can’t allow even the thought that women (with a few exceptions) can fight in war equally with men. We do not call all women to fight and die, but the restrictions about crossing the border were also because of logic that only men have to fight for Motherland because it is only their duty.
The author thinks such decisions violate national constitutional, and international principles of gender equality following the Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention). If all Ukrainian people, regardless of gender, have equal constitutional rights and obligations, it is logical that the Motherland protection and the crossing borders regulations must be the same for all.
The Ukrainian Constitution proclaims that all citizens have equal constitutional rights and freedoms (Art. 24, part 1), all Ukrainian people have to protect the national sovereignty and territorial integrity (Art.17, part 1), and defend the Motherland (Ar. 65, part 1).
On June 20, 2022, the Ukrainian Parliament adopted the law on ratification of the Convention. If Ukraine ratifies the Convention, Ukraine should implement the Conventional gender equality standards, such as the principle of equality between women and men (Art.4, par. 2, sub par. 1), or the principle of avoiding stereotypes about women and men’s roles in society (Art. 12, par. 1).
Implementing the constitutional provisions, the Ukrainian law on military duty and military service declares that women perform military service on an equal basis with men and prohibits discrimination on the grounds of sex (Article 1, part 12, par. 2).
But other provisions of the named act prescribe the obligation of military service only for men (males). The law on military duty states that only males must be registered in conscription stations (Article 14, part 1), and only males can be obligatory conscription for military service (Article 15, part 1). And it seems that even legislative wording “males” (осіб чоловічої статі) can be seen as discrimination under the Istanbul Convention.
The same situation is with the border crossing when the government decisions directly violate the constitutional principles of the legislative act subordination, as well as the constitutional and international principle of gender equality.
Following the Ukrainian Constitutional provisions, everyone has the right to freely leave Ukraine, except for restrictions prescribed by law (Art. 33, part 1), and all government authorities and local government and their officials shall be obliged to act only on the grounds, within the powers, and in the manner envisaged by the Constitution and the laws of Ukraine (Art. 19 part 2).
The Law on the order of departure from Ukraine and entrance to Ukraine of citizens of Ukraine does not say anything about a special regime when martial law or mobilization, as well as its Article 6, which regulates the grounds for temporarily restricting the right of Ukrainian citizens to leave Ukraine. Moreover, the preamble of the named act mentions that “it regulates the procedure for exercising the right of Ukrainian citizens to leave Ukraine and enter Ukraine, the procedure for preparing documents for foreign trips, determines cases of temporary restriction of the right of citizens to leave Ukraine, and establishes the procedure for resolving disputes in this area.” So, we can conclude that it is the named Law mentioned by the Constitution and should regulate all issues about limitation rights about border crossing.
Also, the Law on mobilization training and mobilization and the Law on the legal regime of martial law does not mention any provisions about the ban on crossing the national border by Ukrainian citizens.
Despite the mentioned constitutional and domestic legislation provisions, the Cabinet of Ministers Ordinance on the statement of Rules of crossing state border by citizens of Ukraine banned the exit from Ukraine for all men from 18 to 60, with some exemptions.
The author understands that wartime is a very responsible moment when the whole Nation should consolidate and be together in standing up to aggression. Of course, all people should do all they can to help Ukraine resist and win. But we should not forget that “dura lex sed lex”, that is why the international obligations and national constitutional and legislative provisions should also be fulfilled. Also, the Minister of Defense stated that Ukraine does not have any lack of soldiers. That is why such limitations seem not only illegal but illogical.
Suggested citation: Sergiy Panasyuk, The war hostages: Does the ban for men to travel abroad violate Ukraine’s national law and international obligations?, Int’l J. Const. L. Blog, Aug. 10, 2022, at: http://www.iconnectblog.com/2022/08/the-war-hostages-does-the-ban-for-men-to-travel-abroad-violate-ukraines-national-law-and-international-obligations/
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