Ensuring and protecting human rights as a function of the state under martial law: essential and instrumental aspects
Year: 2026
Type: article
Abstract: The article examines the peculiarities of the transformation of the state's function in ensuring and protecting human rights under martial law. It is noted that one of the main problems of the state's function of ensuring and protecting human rights under martial law is finding the optimal balance between the need to ensure national security and the protection of human rights, the general concept of which is undergoing a significant test, because martial law measures, aimed at strengthening security in the state, often contradict at least some fundamental human rights, in particular, such as the right to liberty and personal integrity, the right to information, freedom of mass assembly, freedom of free movement, etc. Enshrining in legal norms additional powers of state bodies during the legal regime of martial law, as well as establishing appropriate restrictions on the exercise of individual human rights, creates risks of power abusing, which may lead to violations and/or disproportionate restrictions of human rights (e.g., the risk of administrative detention of citizens and the use of excessive physical force against them, the risk of establishing censorship in the media environment, etc.). In view of the above, there is a need to improve the mechanisms for implementing the state's function of ensuring and protecting human rights under martial law, which should be largely aimed in military or other extraordinary realities at, on the one hand, minimizing the risks of power abusing and establishing disproportionate public and governmental control over the activities of citizens and their associations, and on the other hand, creating additional conditions and guarantees for the implementation of human rights and ensuring their real protection and restoration in the event of their violation. It is concluded that the main principles of the state's function of ensuring human rights in martial law are proportionality, necessity and temporality. Proportionality implies that measures, restricting human rights and freedoms, must be proportionate to a real threat to the most important public interests and/or national security of the state, necessity requires the establishment of restrictions only in cases of extreme need, and temporality emphasizes that such restrictions can only be temporary in nature and are subject to cancellation in the event of normalization of the situation. Keywords: ensuring and protecting human rights, functions of the state, proportionality, martial law, national security, civil society, restrictions on human rights.
Author: Serhii Suniehin
Institution: V.M. Koretsky Institute of State and Law
Language: English
Topic: War, Law, and Justice
Field: Social Sciences
Domain: Social Sciences
Open Access status: diamond
OpenAlex ID: W7155201022