CORRELATION OF THE CONCEPTS OF ‘MARTIAL LAW’ AND ‘STATE OF WAR’ UNDER THE LEGISLATION OF UKRAINE

Abstract

The topic of studying the correlation between the concepts of ‘martial law’ and ‘state of war’ is one of the most important in the current legal and political debate, especially in the context of the ongoing armed aggression against Ukraine. These terms, although interrelated, have clear differences in their legal content, international and national application, and practical implications. This work is devoted to the study of the correlation and legal consequences of the concepts of ‘martial law’ and ‘state of war’ in modern international and national legislation, with a special focus on Ukraine’s experience in the context of full-scale armed aggression. The paper also analyses the international legal norms governing the outbreak and conduct of war and explains why formal declarations of war have almost disappeared from international practice after the adoption of the UN Charter. In addition, the article examines the differences between the actual existence of an armed conflict (which triggers the application of International Humanitarian Law) and the domestic legal regime of martial law, which is introduced to ensure defence and security. Particular attention is paid to the analysis of Ukrainian legislation, identification of potential legal conflicts and gaps in the regulation of these concepts. The paper also assesses the practical experience of Ukraine in applying martial law during aggression, offering recommendations for improving the legal framework to increase the efficiency of public administration and resource mobilisation in the context of a protracted armed conflict. As a result, although the ‘state of war’ as an actual armed conflict and the ‘martial law’ as a domestic legal regime are interrelated, their detailed differentiation is vital for Ukraine. This allows not only to ensure legal certainty in the country, but also to effectively fight the aggressor on all fronts – military, diplomatic and legal. The absence of a formal declaration of a ‘state of war’ by Ukraine was a conscious decision based on international law. Since the UN Charter prohibits aggression, Ukraine, as a victim of aggression, did not declare war on russia, but rather defends its territorial integrity and sovereignty within the framework of the right to self-defence (Article 51 of the UN Charter). This positioning strengthens international support for Ukraine and confirms that it is russia is the aggressor in this war. The relevance of a detailed delineation of these concepts for Ukraine is as follows: 1) a clear understanding allows Ukraine to correctly position itself in the international arena as a victim of military aggression, to seek international legal liability of the aggressor and to receive military and financial assistance; 2) the precise definition of the powers of state authorities and restrictions on the rights of citizens under martial law is critical to avoid abuse and ensure the rule of law by the state; 3) clarity of legal regimes allows for more efficient transition of the economy and society to martial law and mobilisation of necessary resources for defence; 4) clarification of these concepts helps citizens to better understand the grounds and necessity of the restrictions imposed, as well as their rights and obligations in times of war; 5) the experience of a full-scale war reveals possible gaps or inaccuracies in the national legislation of Ukraine regulating these issues. At the same time, further research into this issue may provide recommendations and suggestions for their elimination, increasing the effectiveness of the legal system in the context of a protracted armed conflict.