Ius Modernum

The terms "war" and "state of war" in the concept of jus post bellum

Andrii ANDREIKIV — 2026-09-16

The study examines the normative indeterminacy of the term war in contemporary international law through the prism of the concept of jus post bellum. It analyzes international legal instruments governing armed conflict, aggression, and legal responsibility for violations of international law and establishes that none of these instruments provides a legal definition of war. The article argues that the displacement of the term war by the concepts of aggression and armed conflict after the Second World War represents a conceptually incomplete transformation that gives rise to both theoretical and practical problems in international law. The reseach demonstrates that aggression constitutes a unilateral act attributable to a state, whereas war represents a legal condition of at least bilateral interstate relations involving the use of armed force in the pursuit or defence of state interests. The evolution of doctrinal approaches to the definition of war is traced from the classical natural-law tradition represented by Augustine, Thomas Aquinas, Francisco de Vitoria, Francisco Suárez, and Hugo Grotius, through the codification-oriented approaches of Lassa Oppenheim and Hersch Lauterpacht, to the contemporary scholarship of Yoram Dinstein, Antonio Cassese, Marko Milanović, Carsten Stahn, Brian Orend, Larry May, and Gary Bass. The article demonstrates that the normative asymmetry in the development of the three components of just war theory as jus ad bellum, jus in bello, and jus post bellum, constitutes a structural source of terminological indeterminacy. Unlike jus in bello, which has been institutionalized through international humanitarian law, jus post bellum remains predominantly a doctrinal construct. The article further establishes that contemporary international law functionally distributes the legal characterization of interstate armed confrontation among the categories of use of force, aggression, armed conflict, occupation, and other specialized legal regimes. Aggression characterizes conduct attributable to a particular state, whereas the legal categories of war and state of war encompass, respectively, the broader political-legal condition and the international legal status of interstate relations. It is argued that the absence of a universal status-based legal framework defining the legal commencement, existence, and termination of such a condition creates additional normative uncertainty in the development of the legal framework for post-war settlement and recovery (jus post bellum). Finally, in the context of the relationship between international and constitutional law, the article examines the implementation of the relevant provisions of the Constitution of Ukraine and the Law of Ukraine On the Defence of Ukraine concerning the categories of state of war, martial law, and wartime. The analysis demonstrates that Ukrainian legislation does not provide a normative definition of the concept of state of war.

Early dismissal of a claim as a mechanism for countering SLAPP lawsuits

Tetiana TSUVINA — 2026-09-16

The relevance of this study stems from the need to adapt Ukrainian civil procedural legislation to the requirements of Directive (EU) 2024/1069 on protecting persons who engage in public participation from manifestly unfounded claims or abusive court proceedings (Anti-SLAPP Directive). Of particular importance is the mechanism of early dismissal of manifestly unfounded claims provided for by the Directive, which has no direct equivalent in Ukrainian civil procedural law. The study is based on the hypothesis that the existing procedural mechanisms in Ukraine do not fully meet the requirements of Article 11 of Directive (EU) 2024/1069 and that its proper implementation requires the introduction of a special procedure for the early dismissal of SLAPP claims, accompanied by a reconsideration of the general mechanisms for counteracting abuse of the right to bring a claim. To test this hypothesis, the study employs formal legal, comparative legal and systemic methods, as well as the method of legal modelling. It analyses the Directiveʼs requirements concerning the early dismissal of claims, the models for their implementation in Belgium, France and Poland, as well as the relevant institutions of Ukrainian civil procedural law and the case law of the Supreme Court. The study finds that the optimal approach for Ukraine would be to introduce a special procedure applicable from the preparatory stage of proceedings upon the defendantʼs application, placing the burden of proving the merits of the claim on the claimant and ensuring the partiesʼ right to be heard by the court. It argues that where a SLAPP claim is found to be manifestly unfounded, the proceedings should be terminated, subject to a right of appeal. The study concludes that the implementation of Directive (EU) 2024/1069 should be regarded as part of a broader reform of procedural mechanisms aimed at counteracting abuse of the right to bring a claim.

The duty to verify the target when using autonomous weapons

Liliia NEVARA — 2026-09-16

The article examines the conditions for compliance with the duty to verify targets under Article 57(2)(a)(i) of Additional Protocol I to the Geneva Conventions when lethal autonomous weapon systems (LAWS) are employed. The central problem arises where the human decision to employ a weapon system precedes the determination of the specific object of attack, while its detection, identification, and individuation are subsequently performed autonomously by the system. The article aims to establish the criteria under which reliance on autonomous target identification may satisfy the obligation to do everything feasible to verify that an object is a lawful target. Drawing on a doctrinal analysis of Article 57(2)(a)(i), the ICRC Commentary, State military manuals, and contemporary scholarship, the article identifies the normative components of the duty of target verification and applies them to autonomous target selection. It argues that autonomy does not alter the standard imposed by Article 57(2)(a)(i), but changes the manner in which that standard is implemented. Although developers of LAWS do not thereby become direct addressees of the duty to verify, information generated through testing and validation concerning system accuracy, errors, and operational limitations becomes legally relevant to those responsible for an attack. The article proposes a legal test under which compliance depends on whether reliance on autonomous target identification is justified in light of the systemʼs validated reliability, conditions of use, quality of its informational basis, known limitations, and residual uncertainty.

International mechanisms of accountability for the crime of aggression

Volodymyr YARMAKI — 2026-09-16

The article examines the effectiveness of contemporary international legal mechanisms for ensuring criminal accountability for the crime of aggression and the prospects for their further development. The relevance of the study stems from the discrepancy, revealed by the full-scale aggression of the russian federation against Ukraine, between the universal nature of the international legal prohibition of aggression and the limited capacity of international criminal justice to hold accountable those who make and implement decisions on the aggressive use of armed force. The study is based on the hypothesis that the insufficient effectiveness of accountability mechanisms for the crime of aggression results not from the absence of an international legal prohibition of aggression, but from the gap between its normative recognition and the institutional and jurisdictional capacity to enforce it. The hypothesis was tested through an analysis of the Charter of the United Nations, the Rome Statute of the International Criminal Court, the Kampala Amendments, acts of the Assembly of States Parties to the Rome Statute, the Agreement between Ukraine and the Council of Europe on the Establishment of the Special Tribunal for the Crime of Aggression against Ukraine and its Statute, as well as through a comparison of the jurisdictional capacities of the ICC and the Special Tribunal. It is established that the principal problem of the current model lies not in the substantive legal definition of the crime of aggression, but in the limited capacity of international institutions to ensure the practical implementation of individual criminal responsibility. The study substantiates the existence of an asymmetry between the universality of the prohibition of aggression and the absence of corresponding universality of international criminal jurisdiction, resulting, inter alia, from the specific jurisdictional regime established by Articles 15 bis and 15 ter of the Rome Statute. The article examines the legal nature, jurisdiction and institutional potential of the Special Tribunal for the Crime of Aggression against Ukraine, its relationship with the ICC and Ukraineʼs national jurisdiction, the issue of immunities of senior state officials, the possibility of proceedings in absentia, and the importance of international cooperation. It is proposed that the Special Tribunal be regarded as a specialised compensatory mechanism capable of addressing the specific jurisdictional gap of the ICC, but not of eliminating the systemic shortcomings of the existing model of accountability for aggression. The study substantiates the expediency of developing international criminal accountability through a model combining a permanent international mechanism with special compensatory mechanisms. Reform of the ICCʼs jurisdictional regime over the crime of aggression and its gradual approximation to the regime applicable to the other core crimes under the Rome Statute are identified as strategic priorities. The decisive criterion for the effectiveness of such a mechanism should be its actual capacity to ensure the inevitability of criminal prosecution of persons responsible for aggression, irrespective of the international legal status of the aggressor state or its political influence.

Implementation of European standards on safeguarding the right to housing for internally displaced persons

Nataliia MARTSENKO — 2025-09-16

The relevance of this study lies in the fact that ensuring the right to housing for internally displaced persons (IDPs) is one of the priority areas of Ukraineʼs public policy in the context of the ongoing armed aggression of the russian against Ukraine and an essential component of fulfilling the countryʼs international obligations. Despite the gradual improvement of national legislation and the development of compensation mechanisms for destroyed housing, the issue of protecting the housing rights of IDPs remains highly relevant. The need for the further implementation of European standards and the improvement of the legal framework governing the protection of IDPsʼ housing rights determines the particular significance of this study in the context of Ukraineʼs European integration. The aim of the study is to analyze the European standards for ensuring the right to housing of IDPs and to identify the specific features of their implementation in the legislation of Ukraine. This study employs both general scientific and special legal research methods, including the dialectical, formal-legal, systemic-structural, comparative-legal and logical-legal methods, as well as the methods of analysis, synthesis, generalization and systematization. It is concluded that the right of IDPs to housing is one of the fundamental social rights, the effective realization of which requires comprehensive legal protection. The study establishes that contemporary European standards regard the provision of housing not merely as the allocation of temporary shelter, but as a system of legal, organizational and social guarantees encompassing adequate housing conditions, non-discrimination, the implementation of durable solutions to internal displacement, the restoration of property rights and the functioning of effective administrative procedures. The study substantiates that the effective protection of the housing rights of IDPs is achieved through a combination of housing restitution and compensation mechanisms, the development of state housing programs, a clear delineation of the powers of public authorities and the implementation of a long-term housing policy. It concludes that the further development of legal regulation in this area should focus on expanding housing programs, improving compensation mechanisms and further harmonizing national legislation with European standards.

EU Directive 2026/799: targeted harmonization of creditor protection

Bohdan BASULA — 2026-09-16

The article examines the significance of Directive (EU) 2026/799 for the further harmonisation of insolvency law in the European Union and the functional relationship between the institutions covered by the Directive and the protection of creditorsʼ common interests. The relevance of the study stems from persistent differences between national insolvency regimes of the Member States, which affect the duration and outcome of proceedings, the formation and preservation of the insolvency estate, and the level of creditor recovery. The study is based on the hypothesis that Directive (EU) 2026/799 extends EU harmonised regulation to selected institutions of classical insolvency law while preserving the targeted and minimum character of such approximation, and that the protection of creditorsʼ common interests constitutes one of the functional criteria linking a significant part of the harmonised institutions. Formal legal, historical legal, and functional methods are applied. It is established that the Directive introduces common minimum requirements concerning substantive, procedural, and institutional elements of national insolvency regimes, including avoidance actions, asset tracing, directorsʼ duties, pre-pack proceedings, creditorsʼ committees, and information disclosure. The analysis demonstrates that these mechanisms are functionally connected with the preservation and recovery of assets, prevention of depletion of the insolvency estate, achievement of a better financial outcome of proceedings, collective creditor participation, and reduction of information asymmetry. At the same time, the Directive does not harmonise the concept of insolvency, the ranking of claims, or the rules governing distribution of proceeds among creditors, which confirms the selective nature of the harmonisation model. The scientific novelty lies in analysing heterogeneous institutions of the Directive through their common functional impact on creditor protection. The proposed approach may be used to assess national models of transposition of Directive (EU) 2026/799.

Preventing and tackling harassment in the university workplace

Mykhailo SHUMYLO — 2026-06-19

This article examines the regulatory, legal and practical aspects of harassment in the workplace at higher education institutions in Ukraine. International standards for the prevention and eradication of violence and harassment in the workplace are outlined. The main provisions of Council of Europe and European Union law regarding the prevention of harassment in the scientific and educational sectors are highlighted. National legislation in this area is analysed, with particular emphasis on the role of the Ministry of Education and Science of Ukraine. A separate section of the study is devoted to analysing the case law of national courts in harassment cases. Despite growing attention from national and international institutions to the issue of harassment, empirical data on its prevalence in Ukrainian higher education institutions remain limited. To partially address this gap, the findings of an anonymous online survey of higher education staff, in which 135 people took part, have been analysed. The results revealed a high level of awareness among staff regarding the nature of harassment; however, issues of legal liability and means of protection against such violations require further attention. Furthermore, based on empirical data, the specific nature of academic and teaching staffʼs expectations regarding institutional responses to cases of harassment has been identified. A particular concern among staff is maintaining a balance between the confidentiality of investigations and the public disclosure of their findings. The study highlighted the need for further improvement of the legal and organisational mechanisms for preventing and combating harassment in higher education institutions in Ukraine. On this basis, recommendations were formulated regarding the development of a corporate culture and the improvement of legal regulation, aimed at ensuring a safe, dignified and healthy working environment in higher education institutions.

The legal status of a child in civil legal relationships relating to child protection

Volodymyr PRYMAK — 2026-09-16

The article considers current issues of legal regulation of protective civil relations regarding the protection of subjective civil rights and interests of the parties in regulatory obligations with the participation of a child. In the context of analyzing the ratio of the volume and forms of implementation of legal capacity and (in the case of a juveniles) tortious capacity of a child, as well as the features of the application of some remedies, the key elements of the legal status of a child in protective civil legal relations related to the violation of an obligation are identified. The study emphasizes the differences in the procedure for applying the property and organizational sanctions for the violation of a regulatory obligation with the participation of a child. It is noted that despite the legal capacity of minor children to perform minor household transactions, such a child is generally deprived of the opportunity to independently protect their rights and interests in the relevant obligation – with the potential exception of refusing the contract as a self-defense remedy that is relevant to their partial legal capacity. At the same time, a contract concluded by a minor cannot be qualified as a minor household contract if its terms include a provision on the use of such ways of ensuring the performance of the obligation as a penalty or a deposit. Some gaps or controversial provisions of the current Civil Code of Ukraine norms and the provisions of the draft Civil Code of Ukraine dated 09.04.2026 No. 15150 regarding the legal regime of civil liability of juveniles and subsidiary liability of their legal representatives in the sphere of application law of obligationsʼ norms have been identified. The opinion is expressed that legal representativesʼ of juvenile subsidiary liability naturally reflects their duties for his upbringing and taking into account the natural lack of the own juvenileʼs property sufficient to satisfy the probable claims of creditors. It is proposed to extend such liability to protective relations regarding the recovery from a juvenile penalty, annual interest and inflationary losses for violation of a monetary obligation, and the return of a double amount of the deposit. The authors of the article deny the expediency of imposing on a juvenile the obligation to compensate for moral damage caused by the violation of an obligation, as well as the possibility of applying to juveniles (except for emancipated as entrepreneurs) civil liability for violation of an obligation without including fault in its conditions. According to the general conclusion of the article, the legal status of a child as a creditor or debtor in protective civil legal relations related to the violation of an obligation is determined by the scope and forms of exercising his legal capacity and tortious capacity (if the latter exists) and provides for the appropriateness of taking into account the level of mental, physical and social maturity of the child, the duties of legal representatives to bring up the child and protect his rights and interests, the potential ability of a child who does not have civil procedural capacity to use self-defense remedy such as refusing a contract or obligation.

The prohibition on filing identical claims as a manifestation of the negative effect of the res judicata principle

Yehor KOLDOV — 2026-09-16

The article is devoted to the analysis of the principle of res judicata in civil procedure, in particular its negative effect arising from the prohibition of repeated consideration of identical claims. The author examines in detail the classic three-component test for determining the identity of claims. Particular attention is paid to a critical analysis of the practice of the Supreme Court, which involves attempts to use the concept of preclusion of a claim, which is inherent in the countries of the Anglo-American legal system, to limit the rights of individuals to appeal and cassation appeal. The study also highlights the problem of the interjurisdictional effect of the principle of res judicata and proposes legislative changes to the Civil Procedure Code of Ukraine. The methodological basis of the study is the system-structural method, which allows analyzing the provisions of the Civil Procedure Code of Ukraine, which regulate the features of the implementation of the principle of res judicata in civil procedure; the comparative law method, which allows comparing approaches to understanding the preclusion of a claim within the continental and Anglo-American legal systems; the method of analysis and synthesis, which was used in the systematization of the current positions of the Supreme Court and the development of recommendations for changes to the legislation. Based on the results of the study, recommendations were developed to improve law enforcement, and we also propose to improve the regulatory regulation of the grounds for refusing open proceedings and returning the statement of claim: para 3 Part 1 of Article 186 of the Code of Civil Procedure of Ukraine should be excluded from the grounds for refusing open proceedings in the case, instead, the presence of an identical claim should become a separate ground for returning the claim to the claimant by making appropriate amendments to Part 1 of Article 4 of Article 185 of the Code of Civil Procedure of Ukraine.

Criteria for bad faith acquirer in property vindication

Vitalii SMITIUKH — 2026-09-16

The relevance of the study is due to the amendments to the Civil Code of Ukraine introduced by the Law of Ukraine of 12 March 2025 No. 4292-IX, aimed at strengthening the protection of a bona fide acquirer. The study is based on the hypothesis that, despite the legislative reinforcement of the presumption of good faith, the Supreme Court has developed a system of albeit non-exhaustive, criteria capable of rebutting that presumption. To verify the hypothesis, an analysis of the current case law of the Supreme Court was applied, together with the comparative legal method involving the provisions of the Draft Common Frame of Reference (DCFR) and the methods of generalisation and classification. The study identifies and systematises the criteria of an acquirerʼs bad faith according to three stages of a transaction: pre-contractual (affiliation or connectedness with the transferor, failure to meet the standard of reasonable diligence (KYC), refusal to physically inspect the property), contractual (repeated alienation of property within a short period, an undervalued price, indefinite deferral of payment), and post-contractual (absence of actual control over the acquired property (so-called Buchbesitz, or "paper ownership"), passive conduct regarding the property and in litigation). It is established that the standard of reasonable diligence is higher for business entities than for individuals. A comparative analysis with the DCFR revealed a fundamental difference in approaches: while the Civil Code of Ukraine presumes the acquirerʼs good faith, the DCFR places the burden of proving good faith on the acquirer itself. It is concluded that establishing an acquirerʼs bad faith is a question of fact, the burden of proving which rests with the claimant, and that the list of relevant criteria is non-exhaustive and continues to evolve in judicial practice.

Industrial readiness in the field of defence procurement

Nino PATSURIIA — 2026-09-16

The study is relevant because, during a prolonged war, rapid award of a state contract does not ensure timely delivery of defence products when the production system lacks capacity, personnel, materials, and scaling capability. The article doctrinally justifies industrial readiness as an independent defence procurement outcome and determines its legal features, structure, autonomy criteria, and financing model. The research hypothesis is that industrial readiness secured by a State contract constitutes a separate legally significant outcome alongside finished products and production assets because it has economic value and can be measured, verified, paid for, and secured by liability. The methodology combines formal legal, system-structural, and comparative legal methods with law and economics; foreign mechanisms identify legal functions absent from the national system. The study defines industrial readiness as a maintained and verifiable state of a production system that provides baseline and surge capacity within an agreed activation period. This readiness constitutes paid legal counter-performance. It distinguishes industrial readiness from production capacity, future delivery, stocks of finished products, and the procurement of industrial readiness. The structure, legal features, autonomy criteria, and elements of the corresponding economic-law relationship are identified. Analysis of Ukrainian, European Union, and NATO instruments and United States practice confirms prerequisites for long-term contracting but reveals a regulatory gap concerning paid reservation and maintenance of available capacity. The article proposes amendments to the Law of Ukraine "On Defence Procurement" defining industrial readiness, baseline and surge capacity, the activation period, criteria for the special mechanism, contractual terms, verification, payment, and liability.

The economic and legal aspects of the development of war risk insurance

Oleksandr HOFMAN — 2026-09-16

The relevance of the study is driven by the urgent need to ensure the continuity of economic activity and attract investments into Ukraineʼs economy under martial law, which requires the formation of an effective institution of war risk insurance beyond the classical force majeure concept. The research is based on the hypothesis that effective war risk insurance cannot exist as a purely commercial agreement between private entities, but requires an institutional public-private partnership where the state acts as a regulator, co-investor, and guarantor. The methodology for testing the hypothesis is based on a combination of formal-legal analysis of the domestic regulatory framework, the comparative legal method for juxtaposition with the practice of international institutions (MIGA/DFC), and a systemic-structural approach to studying the dual economic and legal nature of war risks. Based on the results of the study, the systemic failure of purely private-law underwriting, manifested in high tariffs and discriminatory territorial exclusions, has been proven. The necessity of implementing a three-level model of joint responsibility (local insurers – state pool – international organizations) is substantiated. It is established that to transform the military factor into an insurable business case, the adoption of the Law of Ukraine "On the System of Insurance of Military and Political Risks" is critically necessary. This will overcome the definitive vacuum of the transitional period, normatively institutionalize the National Pool of Reinsurance of Military Risks, establish clear limits of state responsibility, and unify the rules for providing insurance services to businesses.