LEGAL REGIME OF MARTIAL LAW: THEORETICAL AND METHODOLOGICAL ASPECTS
УДК 342.95(477)
ORCID: 0000-0001-7190-3774
DOI 10.37566/2707-6849-2022-1-2(38-39)-9
Sergiy KULYK,
Zhovtnevyi District Court of Mariupol City, doctoral student of the V.M. Koretsky Institute of State and Law of National Academy of Sciences of Ukraine, candidate of legal sciences
LEGAL REGIME OF MARTIAL LAW: THEORETICAL AND METHODOLOGICAL ASPECTS
Theoretical and methodological approaches to determining the essence and content of the legal regime of martial law have been studied. The concept of martial law as a special legal regime is analyzed. The normative-legal interpretation of the concept of «martial law» in national Ukrainian legislation is shown. It is emphasized that martial law in its conceptual meaning is a special, i.e. extraordinary in relation to the normal, everyday conditions of life in society, a legal regime, the purpose of which is to legally ensure the implementation of the defense of the state as its key foreign policy function, which requires the temporary introduction of a number of extraordinary institutional mechanisms and constitutional restrictions, and the main objects of legal protection are state sovereignty and territorial integrity as the highest constitutional values. It was determined that the fundamental importance of martial law as a special legal regime is manifested in the list of extraordinary powers of competent public authorities, because martial law, by its internal legal nature, actually constitutes the organizational and managerial response of the state to the occurrence of an armed threat to its vital interests and the highest constitutional values, that is, it is about an extraordinary event and the extraordinary, special, temporary legal regime corresponding to this event. A comparative comparison of the legislation on the legal regime of martial law of different states was carried out, which made it possible to attribute the following to the classic constitutional-legal restrictions and institutional-functional features: restrictions on freedom of movement; restriction of freedom of assembly; restriction of freedom of speech; limitation of the right to judicial review of cases; restriction of the right to inviolability of property; the possibility of temporary delegation of judicial and executive power to military courts and military command, respectively. It has been proven that with the relatively static nature of the etymological content of the term «martial law» itself, at the same time, in a concrete and historical context, there are quite noticeable changes in the legal regulation of its individual elements.
Key words: martial law, constitutional rights, legal restrictions, state defense, act of aggression.
References
Vronska T. V., Pylypchuk V. G. Transformation of special legal regimes on Ukrainian lands in the 19th-20th centuries. Scientific journal of the National Pedagogical University named after M.P. Drahomanov. Series 18. Economy and law. 2016. Issue 31. P. 12–23 [ukr.].
On the legal regime of martial law: Law of Ukraine dated May 12, 2015. Information of the Verkhovna Rada of Ukraine. 2015. No. 20. Art. 250 [ukr.].
The UN Charter of June 26, 1945 URL: http://www.un.org/russian/documen/ basicdoc/charter.htm [ukr.].
Martial Law in the United States: Its Meaning, Its History, and Why the President Can’t Declare It URL: https://www.brennancenter.org/our-work/research-reports/martiallaw-united-states-its-meaning-its-history-and-why-president-cantThe Constitution of Iceland dated June 17, 1944. URL: https://legalns.com
Ganzhelo V. What you need to know about martial law: top recommendations for business owners URL: https://biz.ligazakon.net/ru/analitycs/209059_chto-nuzhno-znato-voennom-polozhenii-top-rekomendatsiy-dlya-vladeltsev-biznesa [ukr.].