Quite often we hear that martial law rules do not apply in Ukraine because “war has not been declared,” or there are no legal grounds for restricting people’s rights until a “state of war” is introduced in the country. So let’s figure out what the difference is between “war” and “martial law,” why a “state of war” was not declared, and is “martial law” legally in effect?
Quite often we hear that martial law rules do not apply in Ukraine because “war has not been declared,” or there are no legal grounds for restricting people’s rights until a “state of war” is introduced in the country. So let’s figure out what the difference is between “war” and “martial law,” why a “state of war” was not declared, and is “martial law” legally in effect?
What does the Constitution of Ukraine say about war and martial law?
The Constitution, as the fundamental law of the state of Ukraine, is a norm of the highest legal force, all regulatory by-laws must be adopted and implemented only in accordance with the Constitution and its provisions. Thus, paragraph 9 of Article 85 of the Constitution of Ukraine establishes only that:
“The powers of the Verkhovna Rada of Ukraine include: declaring a state of war and concluding peace upon the proposal of the President of Ukraine, approving the decision of the President of Ukraine on the use of the Armed Forces of Ukraine and other military formations in the event of armed aggression against Ukraine,”
The constitution does not mention “martial law,” nor does it distinguish between these concepts in a direct sense. Then “martial law” is illegal because it is not mentioned in the constitution?
No, because the “state of war”, declared by the Verkhovna Rada upon the proposal of the President of Ukraine, means a situation in which the state of Ukraine is an aggressor, that is, it carries out an attack (offensive actions) against another state. The actual difference between these concepts of “state of war” and “military state” is active actions.
When a “state of war” is declared, it refers to active actions towards another state, such as attacking its territory, seizing its resources, or supporting another state that is already waging war as an ally.
The introduction of the legal regime of martial law, unlike the “declaration of war”, provides for protection, that is, passive actions for defense and deterrence of the enemy who is conducting automatic offensive actions. That is, in this case, Article 17 of the Constitution of Ukraine applies, which clearly states the protection of the sovereignty and territorial integrity of Ukraine as a matter of the entire Ukrainian people.
Martial law, how legal is it and what does it represent?
The Law of Ukraine “ On the Legal Regime of Martial Law ” provides for the definition of martial law as a special legal regime introduced in Ukraine or in its individual localities in the event of armed aggression or a threat of attack, a danger to the state independence of Ukraine, its territorial integrity, and provides for the granting to the relevant state authorities, military command, military administrations and local self-government bodies of the powers necessary to avert the threat, repel armed aggression and ensure national security, eliminate the threat of danger to the state independence of Ukraine, its territorial integrity,
Also, temporarily, due to the imminent threat, martial law provides for restrictions on some constitutional rights and freedoms of man and citizen and the rights and legitimate interests of legal entities. That is, in accordance with and in accordance with Article 64 of the Constitution of Ukraine, which states that In conditions of martial law or a state of emergency, certain restrictions on rights and freedoms may be established, indicating the period of validity of these restrictions. In addition, it is noted that not all rights and freedoms may be restricted, there is a list of restricted rights and freedoms provided for in certain articles of the Constitution.
Accordingly, we conclude that the legal basis for the introduction of “martial law” is the Constitution of Ukraine , this Law on “PRVS” and the decree of the President of Ukraine on the introduction of martial law in Ukraine or in its individual localities, approved by the Verkhovna Rada of Ukraine.
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Thus, the Constitution and the Law on “Martial Law” together determine the content and legal principles of the legal regime of martial law in the case of defending the state from external aggression, the procedure for its introduction and cancellation in the event of an external threat, the legal principles of the activities of state authorities, military command, military administrations, and local self-government bodies in the case of protecting the territorial integrity and sovereignty of the state.
Unlike a state of war, where the main goal of attacking another country is to support an ally in its war, on its side with all the legal and regulatory mechanisms established by the Constitution of Ukraine for such a case.
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