The state of war, like martial law, is a special legal regime provided for by the Constitution of Ukraine. Find out how these two concepts differ and why Ukraine has not yet declared a state of war

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Since the beginning of russia's full-scale invasion of Ukraine, the issue of the need to introduce a "state of war" instead of "martial law" on the territory of Ukraine has been frequently raised in the information space. This issue has become particularly heated after the consideration of the new draft law on mobilization. 

What is a state of war, whether such measures are necessary, and what will change for Ukrainians in the event of a declaration of martial law - we will analyze further in the article.

What is martial law?

The concept of martial law is regulated in detail in the Constitution of Ukraine and relevant legislation. According to the laws "On Defense of Ukraine" and "Legal Regime of Martial Law," martial law is a special legal regime introduced in Ukraine or its separate localities in the event of armed aggression or threat of attack, threat to Ukraine's state independence or territorial integrity. The imposition of martial law implies granting the relevant state authorities, military command and administrations, as well as local governments, the powers necessary to avert the threat, as well as temporary restrictions on the constitutional rights and freedoms of citizens and legal entities. At the same time, there are no restrictions on the number of extensions of martial law in the legislation.

What is state of war?

Ukrainian legislation does not provide for a specific definition of the concept of a state of war, and this term is mentioned only a few times, in particular in the section on the Verkhovna Rada (declaration of a state of war upon the proposal of the President) and in the section on the President (submission of a proposal to the Verkhovna Rada to declare a state of war). A similar procedure is spelled out in the Law on Defense of Ukraine, which states that from the moment a state of war is declared or the actual start of hostilities, wartime begins and ends on the day and time the state of war is terminated.

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What does international law say about the state of war?

First of all, the legal aspects of the declaration of a state of war were enshrined in the III Convention on the Opening of Hostilities, which was adopted on October 18, 1907, during the Second Conference in The Hague. Thus, according to Article 1, military action should not be initiated without prior and ambiguous warning. At the same time, according to this article, the state of war must be declared by the attacking party, not the victim of aggression.

However, if we look at the historical context, it becomes clear that not all wars have been started in accordance with this article, and russia is no exception. After all, it began its invasion of Ukraine in 2014 with the annexation of Crimea, and in 2022 with the declaration of a "special military operation." Therefore, over time, the declaration of war in international law began to be seen as an act of an aggressor or a state that intends to commit an act of aggression. Thus, in accordance with the UN General Assembly Resolution of December 14, 1974, if a state is the first to use armed force, this is sufficient evidence of an act of aggression.

At the same time, international law does not require the introduction of a state of war, because the very fact of an "attack" is an act of aggression, and accordingly, the state that has been attacked has the right to self-defense. Thus, martial law is an internal process in a country, while a state of war is a foreign policy process that is actually an act of aggression.

In addition, it is important to keep in mind that when a state of war is officially declared, the UN must officially recognize one of the parties as the aggressor, while according to the law, war is declared by the country that starts the war. Accordingly, by calling its invasion a "special military operation," russia benefits from Ukraine declaring a state of war. 

Is it necessary to declare a state of war in Ukraine?

According to Ukrainian and international law, regardless of whether a state of war is declared or not, russia is the aggressor who must be held accountable for its crimes, and Ukraine is the victim of this aggression, which has the right to self-defense. 

The list of measures to protect the independence, sovereignty and territorial integrity of Ukraine is defined by the Constitution of Ukraine. These measures include a number of legislative restrictions and prohibitions, such as a ban on holding elections or a ban on traveling abroad. In addition, according to the law, general mobilization may be declared in Ukraine during martial law, curfews may be imposed, etc. 

Therefore, there are currently no legal grounds to declare a state of war in Ukraine, as martial law is a legal basis for the defense of the state, and russia has already been recognized as an aggressor that is carrying out an armed attack.

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