THE DOCTRINE OF THE STATE’S POSITIVE OBLIGATION IN SECURING SOCIAL RIGHTS OF MILITARY PERSONNEL: BALANCING THE PRINCIPLE OF UNCONDITIONAL PROTECTION AND THE LIMITS OF FINANCIAL CAPABILITY

Abstract

The objective of the article is a comprehensive study of the state’s positive obligation regarding the social protection of military personnel, defining the limits of the state’s recourse to financial capability as grounds for restricting social rights, and developing proposals to ensure the priority of unconditional protection over economic expediency. The article substantiates the relevance of social protection for military personnel as a positive state obligation, which is the cornerstone of Ukraine’s constitutional order. In the context of full-scale aggression, the problem of securing these guarantees has become particularly acute due to the state’s heightened obligations and international standards. The key collision lies in the opposition between the principle of unconditional protection of rights and limited financial capability, frequently cited by executive authorities, which leads to the narrowing of already established social rights. Despite clear legal guarantees, the issue of practical rights realization and the avoidance of bureaucratic restrictions remains topical. The doctrinal and constitutional-legal methods were used to substantiate the content of the positive obligation. Comparative legal analysis of NATO countries’ experience and judicial practice analysis were applied to examine the conflict between the positions of the Constitutional Court of Ukraine (which rejects payment restrictions) and the Cabinet of Ministers of Ukraine. The position of the Supreme Court, which clearly confirms the priority of the positive obligation, was also studied. It is established that the core legal conflict is the opposition between the doctrine of unconditional protection and the doctrine of financial capability. To ensure the sustainability of the protection system and the fulfillment of the positive obligation, a transition to a hybrid, multi-level system is proposed. This requires the complex modernization of financial, administrative, and legal mechanisms aimed at overcoming bureaucratic restrictions. The implementation of these measures will allow for achieving a fair balance between constitutional guarantees and the state’s financial capabilities, ensuring the unconditional and timely realization of the social rights of military personnel.