Conclusions and recommendations on amendments to the Law of Ukraine "On the Fundamentals of National Security of Ukraine". Analytical note



29.03.2015

Abstract

 

This analytical note considers Ukrainian national legislation shortcomings, which significantly hinder reform and development of the national security. Outdated and unsystematic legal acts on national security contain a number of inconsistencies; do not take into account specific threats of a new type, including impact of "hybrid" aggression.

The note’s authors have proposed conceptual approaches to the comprehensive review of Ukraine's legislation on national security. They have made specific recommendations for the preparation of (a new version of) amendments to the Law "On the Fundamentals of National Security of Ukraine", which is to be a basic one in this area.

 

 

Conclusions and recommendations on amendments to the Law of Ukraine "On the Fundamentals of National Security of Ukraine"

 

Ukraine's legislation on national security is rather obsolete, and incorporated rules of interaction and coordination among government and law enforcement agencies, both in peacetime and in crisis, do not take into account peculiarities of the new type of aggression, when a variety of non-military forces and means of struggle are widely used alongside with traditional military operations. In addition, legal acts in this area contain a number of inconsistencies; the definitions of certain terms should be revised, modern national security threat management mechanisms should be introduced and so on.

 

Our state leadership has identified certain measures to improve legislation in the sphere of national security. Hence reform of national defence and security system is considered a top state priority by the Strategy for Sustainable Development "Ukraine - 2020", approved by the Decree of the President of Ukraine on January 12, 2015 № 5/2015. The update of doctrinal and conceptual approaches to national security is defined as a key measure of the reform implementation.

 

It should be noted that the reform of the national security system stipulates other amendments in Ukrainian legislation, in particular, clarification of tasks and functions of the security and defence sector subjects. The relevant legislative changes have, in particular, to provide a clear order of interaction of state authorities in national security, to eliminate their redundant or inappropriate functions, to consolidate their capabilities to maximum effect.

 

The decision of the National Security and Defence Council of Ukraine (hereinafter – NSDC) "On urgent measures to protect Ukraine and strengthen its defence capability" on August 28, 2014, has entered into force by the Presidential Decree № 744/2014 dated 09.24.2014. It tasked Cabinet of Ministers of Ukraine to work out proposals for amending the national security legislation, particularly the Law "On the Fundamentals of National Security of Ukraine" last year and submit them to the NSDC and subsequently to the President of Ukraine for consideration. But till now there is no any draft law on making systematic and comprehensive changes to the legislation on national security in the Parliament of Ukraine. That hinders the relevant sector reforming process.

 

Appropriate changes in legislation should ensure the establishment of an integrated, flexible, coherent system of national security. Therefore, it is necessary to define conceptual approaches to the comprehensive review of Ukraine's legislation on national security, starting from the provisions of the Constitution of Ukraine and ending with departmental regulations.

 

Special attention should be paid to improving the basic law that is to define the principles and characteristics of the national security system. The Law "On the Fundamentals of National Security of Ukraine", passed in 2003, is such a law in Ukraine.  

 

 That time NSDC’ practice has significantly impacted the structure and content of the law. In its early days Council had no legally defined scope of activities and, guided by the constitutional provision that “an individual, his life and health, honour and dignity, inviolability and security shall be recognised in Ukraine as the highest social value”, it accepted for consideration actually unlimited range of issues from national defence to housing and utilities, circulation of alcohol and tobacco, etc.

 

Thus, the Law "On the Fundamentals of National Security of Ukraine" defines the meaning of the term "National Security" as the safeguarding of vital interests of person and citizen, society and state, through the timely detection, prevention and neutralization of real and potential threats to national interests in a broad range of areas of public management. Despite the fact that the definition of that term in the Law consists of 16 lines, it covers only certain areas of activity, while the list of national security threats against which the state must protect itself, society and every citizen, thus ensuring sustainable development, is not permanent. Those threats are constantly transforming, expanding their sphere of influence. Traditional threats are complimented by fundamentally new ones, the occurrence of which is caused by the development of science and technology, globalization and other factors.

 

 Consequently, the approach to the legislative definition of "National Security" must be changed. Since range of threats to security sector expands nowadays, it is advisable to keep a broad interpretation of the term, but avoid fixed list of areas that this concept should cover. This approach allows swift prevention, localization and neutralization of new threats to national security, without delays caused by appropriate legislation changes process.

 

 Note. Today there is no single established definition of the term "national security" and no list of areas and components that it covers. Each country defines the areas that it attributes to national security individually, as well as the list of its objects and subjects, depending on tasks facing the state at the national and international levels, and its capabilities. The developed countries practice a broad interpretation of the term "national security".

Referring to US experience, the first to use the term "National Security" was the President of the US Theodore Roosevelt (in his address to Congress in 1904). Initially military and foreign policy components constituted the foundation of the national security system. But according to the latest editions of the National Security Strategy of the United States, in particular the one, revised in February 2015, besides defence and foreign policy, the US national security also encompasses economic, energy, home affairs, cyber and other areas.


Based on the foregoing, it is not appropriate to identify threats to national security and the main directions of the state policy in the sphere of national security in a law, as it stipulates the law "On the Fundamentals of National Security of Ukraine" (Articles 7 and 8). There is the National Security Strategy for such purposes, and it must be refined periodically. This not only meets the advanced world experience, but is required by the Ukrainian legislation (in accordance with Articles 9 and 10 of the aforementioned Law).

 

Instead, this basic Law should define the fundamental elements of the national security system and the principles of their interaction in peacetime and in crisis. It is also worth attention that the requirement of the Constitution of Ukraine, which stipulates that "only the laws of Ukraine may define National Security principles" (paragraph 17 of Part 1 of Article 92) does not mean that such a definition should be made only by adoption of a single law. This can be done by amending the Constitution and the adoption of a system of laws (paragraphs 1 and 3 of Article 85 of the Constitution of Ukraine). The list of major policy areas, legal relationship within which is to be defined only by laws, is specified in a number of paragraphs of Article 85 and Article 92 of the Constitution of Ukraine.

 

Note. US legislation regulates in detail the powers and functions of public authorities in the field of national security/ It specifies even duties of their heads and qualification requirements for applicants for the respective positions (in particular for those who aspire to hold office of the Minister of Defence or Chairman of the Joint Chiefs of Staff). At the same time, there is no definition either of "national security" or of areas that it covers in US legislation.


A significant drawback of the current version of the Law "On the Fundamentals of National Security of Ukraine" is the fact that most of its provisions are declaratory and have not regulatory formally defined character. The law basically should consist of legal norms that establish obligatory rules of conduct (rights and obligations) for social relations actors. Otherwise, the conditions for subjective assessment of the standards’ content and criteria for their implementation are created.

 

The adoption of the same declarative law "On the principles of domestic and foreign policy" in 2010 only complicated already imperfect legal regulation of national security. In particular, this Law introduced the concept of "Principles of Domestic Policy of Ukraine in the field of national security and defence." The list of such principles as defined by Article 6 of this Law is essentially a concentrated updated summary of the core directives of national security policy specified in Article 8 of the Law "On the Fundamentals of National Security of Ukraine". Thus, to distinguish between "fundamentals" and "principles" almost impossible, and the need for such duplication and redundancy in the legal regulation of national security raises significant doubts. 


Note. Fundamentals - "main principles of state policy aimed at protecting the national interests and security in Ukraine individual, society and state against external and internal threats in all spheres of life." And principles - "the safeguarding of vital interests of person and citizen, society and state, timely detection, prevention and neutralization of real and potential threats to national interests in foreign policy, defence, social, economic, energy, food, environmental and information fields".


In addition, fundamentals of the National Security stipulate protection not only from internal threats but also from external ones, and the principles are defined only for the domestic policy of Ukraine in the field of national security.


The existence of discrepancies between the provisions of various laws on national security substantially complicates the process of strategic planning and forecasting, reduces the efficiency of the security and defence sector, hampers its interaction with other entities involved in the implementation of tasks in the relevant sphere.

 

Note. The term Security of the State is used in the Constitution of Ukraine in the following context: "Ensuring the security of the State and protecting the State borders of Ukraine shall be entrusted to respective military formations and law enforcement bodies of the State, whose organisation and operational procedure shall be determined by law" (paragraph 3 of Art. 17). Also wording "national  security" is used in Article 18 of the Constitution: "The foreign political activity of Ukraine shall be aimed at ensuring its national interests and security by maintaining peaceful and mutually beneficial co-operation with members of the international community in compliance with the generally acknowledged principles and norms of international law". At the same time, the Law "On the Fundamentals of National Security of Ukraine" (Art. 1) provides a lengthy definition of "National Security". 


The Law of Ukraine "On the Fundamentals of National Security of Ukraine" defines such basic concepts as "Military Organization (Establishment) of the State" and "Law Enforcement Agencies". At the same time, the term "Military Organization of the State" is missing in the text of the National Security Strategy of Ukraine approved by the Decree of the President of Ukraine dated June 8, 2012 № 389/2012. Instead, it derives from the text of the Strategy that both "the Military Organization of the State" and "the Law Enforcement Agencies" are parts of "Security and Defence Sector" though the definition of the latter is absent in the law. And the Law of Ukraine "On Defence of Ukraine" (paragraph 1, Art. 2) uses the term "Military Organization of Ukraine". The definition of "Military Organization of the State" given in the Law "On the Fundamentals of National Security of Ukraine" and that in the Law “On democratic Civilian Control of State Military Organisation and Law Enforcement Bodies” also differ.

The Law of Ukraine "On the Fundamentals of National Security of Ukraine" requires developing the Military Doctrine of Ukraine. While the Law of Ukraine "On Defence Planning" stipulates the existence of Military Security Strategy besides Military Doctrine. The correlation between these and among other strategic and programme documents is not determined.

Also, there are no clear definitions of such notions as "law enforcement activity", "law enforcement agencies", "law enforcement system" and "special services" in the current legislation. There are discrepancies in definitions of the national security subjects’ powers and their responsibilities.


Whilst improving Ukrainian national security legislation comprehensively and systematically, there should be an assumption that a relevant basic law is to establish a foundation for the formation of a national security legislation branch within the national legal system. Its main objectives are:

- Singling out the national security components of the state activity;

- Establishing single, consistent operating mechanism of national security, including:

• Arranging effective cooperation and coordination among government bodies, civil society and citizens in this area,

• Implementing a systematic approach to planning, resource support and monitoring measures to ensure national security;

- Ensuring the effective functioning of the security and defence sector, which is the basis of the national security system, including formulation of clear definitions of such notions as:

• the concept of security and defence sector;

• security and defence sector peacetime and crisis management mechanism;

• procedures of creating auxiliary structures if necessary;

• procedures of the defence and security sector comprehensive review and adoption of regulations on its results, etc.

Other legal acts in the area of ​​national security are to be formed in compliance with the provisions of the basic law.

 

The mere availability of perfect national security legislation is not a guarantee of its obligatory implementation and proper realization of its provisions.  

 

The edition of the National Security Strategy of Ukraine approved by the Decree of the President of Ukraine dated June 8, 2012 № 389/2012, states that "adopted for the first time in 2007 National Security Strategy of Ukraine did not evolve to a guiding document for the practice of public authorities, because of their focus on achieving short-term political and economic goals, negligence of the society’s and state’s strategic development needs. Consequently, the threats to national security have increased, and Ukraine's ability to protect its national interests has weakened".

 

However, the same fate befell the National Security Strategy of Ukraine approved by the Decree of the President of Ukraine dated June 8, 2012 № 389/2012, since its main goals and objectives were not met. In particular, national security legislation was expected to be improved at the first stage of its implementation in 2012-2013. But the Governmental proposals to systematize the relevant legislation essentially were superficial.

Today there is almost no connection between the national security system development goals and the state socio-economic priorities. It is a problem for implementation of state strategies. The risks to fail the national security tasks increase with lack of the state’s resources.

 

It is necessary to involve academic institutions, universities and the public more actively in order to improve the Ukrainian national security legislation. This will increase the level of perception and public support of the state policy in the sphere of national security, ensuring proper public control over its implementation, will increase the effectiveness of the relevant legislation.

 

 Note. The US experience of cooperation between the state and the civil society is the proof of such collaboration effectiveness. Thus, in 2007 the country has adopted national counterintelligence strategy. In 2009 it was amended and new tasks were assigned, the new role of the intelligence community and counterintelligence agencies was defined. Academic and university community reacted/responded to those changes instantly. Over the next six months, more than twenty US universities have prepared projects of the relevant programs which had proposed concrete/specific ways to address the objectives and to train personnel required for their implementation.


Conclusions

Imperfect legislation on national security and its low efficiency lead to inappropriate level of national security, hamper full realization of national interests.

The effectiveness of a law is an important indicator of its social utility and necessity. It depends on the content of the law and its conformity with the real socio-political and legal situation. A contrived law does not correspond to the objective circumstances, the real society and state’s needs, has no influence on legal relations. An effective national security strategy should be based on a clear and logical legislation, as well as on the appropriate level of its realisation.

 

The law of Ukraine "On the Fundamentals of National Security of Ukraine" should become the framework law governing national security. It should contain not just abstract general theoretical concepts but clearly defined approaches to the formation of the national security system, the mechanism of its functioning itself, definition of the national security subjects’ powers and scheme of their interaction.

 

Proposals:

1. In our mind, the Cabinet of Ministers of Ukraine pursuant to a decision of the National Security and Defence Council of Ukraine dated August 28, 2014 "On urgent measures to protect Ukraine and strengthen its defence capability" enacted by the Presidential Decree № 744/2014 on 09.24.2014, is to prepare a new version of the Law of Ukraine "On the Fundamentals of National Security of Ukraine". We propose that the Law is to define:

- key terms;

- the legal basis for national security;

- the basic elements of the national security system and particularities of their interaction:

  • subjects and objects of national security system,
  • the tasks and functions of state bodies and agencies in the sphere of national security and defence, the order of their interaction with each other and with civil society institutions and citizens, as well as coordination in peacetime and in crisis;
  • the role of the National Security and Defence Council of Ukraine in the national security system;
  • the procedure of forming the auxiliary structures, consultative, advisory and other subsidiary bodies, agencies and services established by the President of Ukraine, the National Security and Defence Council of Ukraine and the Cabinet of Ministers of Ukraine to ensure national security;
  • the security sector management mechanism in peacetime and in crisis; the sequence of conduct of a comprehensive defence and security sector review and the procedure of drawing up and adoption of regulations on its results;

- procedures of the national security supervision, particularly:

  • informing the Parliament of Ukraine on the national security activities;
  • democratic civilian control over the security and defence sector;
  • monitoring mechanism of the national security legislation implementation.

 

Also, we propose some terms definitions in the draft Law such as:

national security – national interests and national values ​​protection from external and internal threats;

national interests - vital needs of the person, society and the State, realisation of which provides for state sovereignty and prosperity of Ukraine and its progressive democratic development;

national values ​​- basic material, intellectual and spiritual gains of the people of Ukraine, defining conditions for the existence and development of the person, society and the state;

threats to national security – real and potential events, trends and factors that hinder the preservation and strengthening of national values ​​and effective implementation of national interests in all areas of public administration;

national security system - a complex of national security subjects, forces, means, methods, factors and premeditated actions that guarantee the maintenance and strengthening of national values, protection and progressive development of national interests through timely detection, prevention, localization, neutralization and overcoming of internal and external threats and ensure the effective functioning of the national security system of Ukraine proper and of its components;

security and defence sector – centrally managed complex of state authorities, established under the laws of Ukraine's military forces, law enforcement and special agencies and institutions, whose activities, in compliance with the Constitution and laws of Ukraine, are aimed at protecting national values ​​and interests from external and internal threats through special measures, law enforcement or use of weapons within their powers.

We propose to determine that "To meet the challenges and to safeguard National Security the subjects of Ukrainian Defence and Security Sector should cooperate with other government agencies, local authorities, NGOs and associations, institutions and enterprises (including the military-industrial complex), citizens and relevant entities of other states." The established procedures for such interaction are determined by the relevant regulatory acts.

 

We propose the following approach to the legal basis of national security definition formulation in the draft law:

"The Constitution, this and other laws of Ukraine as well as international treaties and other legal acts lay down the legal ground of the National Security of Ukraine.

Pursuant to this Law the President of Ukraine approves the National Security Strategy of Ukraine which defines the actual threats to the National Security and priorities of the state policy in the field of National Security and Defence for a specified period.

 

The National Security Strategy of Ukraine is the basis for integrated planning of public authorities’ activities in the field of National Security and Defence, and for development of other documents that identifies goals, directions and mechanisms of public authorities’ activities in this field.

 

National Security Strategy of Ukraine is announced in the Message from the President of Ukraine to the Verkhovna Rada (the Parliament) of Ukraine. It is a binding document.

National Security Strategy of Ukraine is refined periodically to reflect changes in the security environment of Ukraine.

 

We propose to determine in the draft Law that:

The objects of national security – a person, society, state.

The subjects of national security – state authorities, civil society institutions and citizens.

There is no need to determine National Security specific areas and threats as well as the directions of the state policy on national security, in the text of the law since they are subjects of the National Security Strategy.

 

2. In our mind the Cabinet of Ministers of Ukraine is to prepare and submit to the Verkhovna Rada (the Parliament) of Ukraine amendments to the laws of Ukraine "On Organization of Defence Planning", "On Democratic Civilian Control of State Military and Law-Enforcement Organisations", On Council of National Security and Defence of Ukraine", "On Defence of Ukraine", "On the State Defence Procurement Order", "On the Legal Regime of Martial Law", ''On the Legal Regime of a state of Emergency", etc. in connection with amendments to the Law of Ukraine "On the Fundamentals of National Security of Ukraine".

 

3. In our mind the Cabinet of Ministers of Ukraine is to prepare and submit to the Verkhovna Rada (the Parliament) of Ukraine amendments to the Law of Ukraine "On the Principals of Domestic and Foreign Policy", by deleting Article 6, paragraph 2 of Article 14 and the words "national security and defence" from the preamble.

 

4. We recommend the Cabinet of Ministers of Ukraine to involve leading research institutions, including the Academy of Sciences of Ukraine, the National Institute for Strategic Studies, universities and representatives of civil society and independent experts in elaboration of the relevant draft laws when improving national security legislation.

 

5. We recommend the National Academy of Public Administration under the President of Ukraine and other higher education establishments to provide training in national security basics.

 

March 2015

The National Institute for Strategic Studies

 

Authors:

O.Reznikova, head of National Security Department, Candidate of Economic Sciences, Senior Research Officer

V.Tsiukalo, Chief Specialist of National Security Department




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