Factual grounds for the application of the special legal regime of martial state

Abstract

The factual grounds for the application of a special legal regime of martial law in Ukraine and foreign countries at the current stage and in the historical and legal context have been studied. The concept of an armed attack as a factual basis for the introduction of martial law is analyzed. The normative-legal interpretation of the concept of "threat of attack" in national Ukrainian legislation is shown. It is emphasized that armed aggression in modern theory and practice means external armed aggression, the commission of which constitutes a violation of such a fundamental principle of international law as the non-use of force or the threat of force in international relations, which is formulated in mandatory international legal norms and the recognition of such norms an integral part of the national legal systems of all states of the world without exception, even without the ratification of those sources that contain the main principles of international law and generally recognized norms and principles of international humanitarian law. It is shown that the solution of internal social crises of an economic, political or any other substantive nature can be a controversial from the point of view of international legal and constitutional legal legitimacy in some foreign states. The current Ukrainian legislation quite justifiably does not include similar situations in the list of possible factual grounds for imposing martial law, since a special legal regime for internal crisis situations is a state of emergency. It has been established that according to the current Ukrainian legislation, the following factual grounds for the application of martial law as a special legal regime are recognized as possible: a) armed aggression; b) threat of attack. At the same time, both such situations should pose a danger to the state independence of Ukraine and/or its territorial integrity, which is a natural, immanently inherent property of any act of aggression or its real threat. Based on a similar formal and legal definition of the factual grounds for the application of martial law according to the current Ukrainian legislation, each of the possible factual grounds for the application of a special legal regime of martial law was considered separately in order to establish their content, scope and provide a proper interpretation in the context of the general ideas of modern constitutionalism about a special order of functioning systems of bodies and officials of public authorities and permissible and necessary temporary restrictions of the constitutional rights and freedoms of a person and a citizen.