"Until a state of war is declared, any mass mobilization is considered illegal," some citizens claim, adding: "What right does the state have to mobilize the population when war with Russia has not been officially declared?" Such arguments become the subject of active discussions in social networks.
Social media users are often noted for their responses to such claims, stressing: "Every time someone starts talking about 'improper mobilization' or 'unconstitutional martial law', I want to suggest that they express it in Buch, for example."
Regarding the state of war and its definition in Ukrainian and international legislation, some questions remain open. Lawyers and experts express different points of view. Some point out that Ukrainian legislation provides for the possibility of imposing martial law without declaring war, particularly in the event of aggression. Other experts define a state of war as a formal act that must be declared before mass mobilization measures are taken.
This discussion reflects the general interest in the legal regulation of martial law and mobilization, and also emphasizes the need to clarify and supplement legislation to respond to modern challenges and threats.
Why is this important?
Talks about whether Ukraine should have declared war on Russia, or whether the authorities should establish a "state of war" and not just martial law, have been going on almost since the full-scale invasion of Ukraine by Russia.
With the start of discussions on the government draft of new mobilization rules in Ukraine, these discussions are reaching a new level. Opponents of mobilization often use such narratives to justify their positions. The opinion is also expressed that an officially declared state of war would provide the international community and courts with additional legal grounds in cases related to compensation, return of prisoners and prosecution of persons who committed war crimes.
What are the differences between martial law and state of war in Ukraine?
In Ukrainian legislation, the term "state of war" is used in a limited way and only in two specific places. The lack of detailed explanations creates gaps in the understanding of this concept. The Constitution mentions "state of war" in the sections on the powers of the Verkhovna Rada, which declares and concludes peace at the request of the President, and on the powers of the President, who makes a request to declare a state of war and, in the event of aggression, decides on the use of the Armed Forces.
The Law "On the Defense of Ukraine" specifies that after the declaration of a state of war or the actual start of hostilities, wartime is established, but the term "wartime" itself is not clarified by the legislator.
On the contrary, the concept of "martial law" is laid down in detail both in the Constitution and in separate laws. Introduced on February 24, 2022 for three months, martial law continues regularly, giving the political and military leadership, as well as local authorities, the power to counter aggression. This state allows to limit the constitutional rights and freedoms of a person, and unlike the state of war, the legislation does not specify limits on the number of extensions of its effect.
Experts and lawyers, who were asked by the Ukrainian Air Force, emphasize that the question of mobilization and the declaration of a state of war or its absence are two different things that are not related to each other.
The military expert of the Razumkov Center, Oleksiy Melnyk, notes that the constitution and laws on defense and mobilization clearly formulate all the necessary procedures. He points out that Ukraine has been under martial law since 2022, which was declared in accordance with the constitution and the decision of the parliament. The expert emphasizes that martial law gives the authorities the authority to carry out mobilization, which has already been happening since the Russian invasion in 2022.
Lawyer Borys Babin notes that since the introduction of martial law, all the necessary powers for mobilization have been granted to the authorities in accordance with the current legislation. He reminds that already in 2014, partial mobilization was announced in Ukraine during the annexation of Crimea by Russia, and this practice was carried out in accordance with legislative procedures.
Should Ukraine have declared war on Russia? Considering the fact that Russia invaded Ukraine without an official declaration of war, characterizing it as a "special military operation", the question arises: should not Ukraine itself have declared a state of war with Russia to facilitate the resolution of issues regarding international aid, compensation and the release of prisoners?
According to international law, the term "state of war" first appeared in the Convention on the Opening of Hostilities, adopted in The Hague in 1907. According to this convention, the state of war must be declared by the party that attacked, and not by the country that became the object of aggression.
However, it is important to note that the absence of a declaration of war does not formally make the state less aggressive. International law clearly defines actions that constitute an act of aggression, regardless of a declaration of war.
According to the UN General Assembly Resolution of December 14, 1974, the use of armed force by the first state is already sufficient evidence of an act of aggression.
Thus, at the international level, the state of war does not affect the qualification of Russian aggression against Ukraine.
Borys Babin, a lawyer and expert, emphasizes that since 2022 there is martial law in Ukraine, which was introduced in accordance with the constitution and the decision of the parliament. He emphasizes that this state allows the authorities to carry out mobilization in accordance with the current legislation.
At the moment, the Ukrainian authorities do not consider it necessary to take legislative measures to declare a state of war, believing that the current legislation is sufficient to ensure the protection of the country from aggression and general mobilization.
