Powers of the head of state regarding the imposition of state of emergency and martial law: domestic and foreign experience

Abstract

The article analyzes the provisions of regulatory and legal acts regulating the grounds and procedure for imposing legal regimes of state of emergency and martial law in the conditions of the Russian Federation 's armed aggression against Ukraine. It is stated that there are legal uncertainties in certain aspects related to decision-making by public authorities through the establishment of norms that give their actions discretionary powers, in particular the President of Ukraine.
 The mechanism of decision-making on the introduction of special legal regimes in Ukraine has been studied, attention has been paid to the experience of foreign countries. The study of the characteristics of different special legal regimes takes into account the diversity of special legal regimes that exist in foreign countries.
 It is established that the existence of decrees of the President of the Russian Federation dated February 21, 2022 on the recognition of self-proclaimed quasi-states in eastern Ukraine - "Luhansk People's Republic" and "Donetsk People's Republic" as sovereign and independent states and delegating the Ministry of Defense of the Russian Federation to ensure "peacekeeping functions" by the armed forces of the Russian Federation on the aforementioned territories are the documentary evidence of the invasion of the armed forces of the Russian Federation in the Donetsk and Luhansk regions, the conduct of active military (combat) operations and the occupation of part of Ukraine. It is established that the term "occupation" in international law means the temporary occupation of the enemy's territory by the armed forces.
 Based on the results of the analysis, it is concluded that the decision of constitutional and political bodies (entities) on the choice of conditions (grounds) for the introduction of legal regimes (state of emergency or martial law) amid the aggression of the Russian Federation against Ukraine has a wide discretionary basis and significant political expediency, which in the presence of equal conditions (grounds) provides an opportunity to introduce a legal regime of state of emergency and martial law.