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Artuikhova Nadiia PhD in Law, doctoral student, National Academy of the Security Service of Ukraine
Kyiv, Ukraine DOI: 10.24411/2520-6990-2019-10209 PROTECTION OF THE NATIONAL INTERESTS OF UKRAINE IN THE SPHERE OF TRADE AND ECONOMIC COOPEARTION: LEGAL FOUNDATIONS
Abstract
In the paper the legal foundations of the national interests' protection in the sphere of trade and economic cooperation of Ukraine are studied; the content and structure of the current legislation in this sphere is analyzed; the need in its improvement is substantiated. The definition of the concept "legal regulation of the national interests ' protection in the sphere of trade and economic cooperation of Ukraine" is offered. The necessity of development and implementation of the Economic Security Strategy of Ukraine with a separate section devoted to the goals, priorities and tasks of the state policy in the sphere of trade and economic cooperation is proved.
Key words: legal regulation, normative and legal acts, trade and economic cooperation, national interests, national security, legislation.
The security of international trade and economic cooperation of Ukraine is an integral part of national economic security, which determines its potential on the world stage in general and in global trade in particular. Therefore, the issue of defining the legal foundations of the national interests' protection in the sphere of trade and economic cooperation (hereinafter - TEC) of Ukraine is urgent and timely, since it is an integral component of the state foreign economic security system.
Topical issues of the legal regulation of various spheres of the national economy, as well as possible ways of its improvement, were thoroughly studied by O. Soldatenko, O. Sviatotsky, T. Zakharchenko, I. Borisenko, V. Vakalyuk, O. Kakhovich, N. Vozniy, et al. However, the legal foundations for ensuring the security of such a strategically important area of the national economy as trade and economic cooperation is currently viewed rather fragmentarily and mostly in terms of some specific economic sphere. Thus, the purpose of the paper is to determine the legal foundations of the national interests' protection in the field of trade and economic cooperation of Ukraine, to identify possible gaps and contradictions in the current legislation and to substantiate the need for developing certain amendments and additions to eliminate them.
Before proceeding to the issues of legal regulation of the protection of Ukraine's national interests in the field of TEC, let us analyze the concept of "legal regulation" and various scientific approaches to its definition. Thus, in the dictionary the term "regulate" is interpreted as: 1) to be subordinate to a certain order, rule; 2) to provide correct interaction, necessary for proper operation of parts of the mechanism, device, apparatus, etc.; 3) to do something to obtain the required indicators; the required degree of something [1, p. 432]. In the legal dictionary the following definition can be found: "Legal regulation is a regulation of social relations, carried out with the help of law and the whole set of legal means" [2, p. 589]. According to the "Great Legal Dictionary", legal regulation is a process of state influence on social relations via legal norms; it is based on the subject and method of legal regulation [3, p. 524]. A
number of scholars consider this concept as the purposeful influence of the state on the behavior of people and social relations with the help of all legal means in order to regulate them [4, p. 256]. Others argue that it is an effect of law on the social relations through the use of certain legal means [5, p. 290]. More comprehensively this concept is considered by O. Zaichuk and N. Onischenko, who argue that legal regulation is a certain process taking place due to objective and subjective factors, such as: the level of maturity and stability of social relations, the level of social structure of society, the state of economic development of society, the general level of legal culture of the population etc. [6].
The analysis of the above mentioned scientific definitions lets us suggest that legal regulation is almost unanimously interpreted as a "process", "arrangement", "action" initiated by the state authorities via certain legal means for the purpose of exercising legal influence on certain public relations.
Taking into account the above mentioned, the legal regulation of the national interests' protection in the sphere of trade and economic cooperation of Ukraine can be considered as a complex of established legal means of the state influence on social relations that arise between domestic and foreign entities in the course of trade and economic cooperation in order to prevent, timely detect and eliminate unlawful encroachments, including those carried out from legal positions, as well as to counteract existing and potential threats, risks and challenges to the national security in this sphere.
The value of legal regulation, to P. Rabinovich, consists in its real positive (useful) significance for the existence and development of a person, social communities, groups, associations and the whole society in general" [7, p. 158].
The system of legal regulation of national interests' protection in the sphere of Ukrainian trade and economic cooperation, in our opinion, may be presented by:
- acts of higher legal force, in particular those determining legal foundations of the law enforcement bodies' activity in the sphere of trade and economic cooperation of Ukraine;
- subordinate legislation, namely decrees and orders of the President of Ukraine, Cabinet of Ministers of Ukraine, decisions of the National Security and Defense Council of Ukraine, in particular dealing with the issues of trade and economic cooperation, such as application of import duties, the embargo on the purchase of certain categories of goods, state control over the international transfers of dual use commodities, etc.; state policy on providing the Armed Forces of Ukraine and other military units with the foreign defense products, as well as promoting further cooperation between national defense enterprises and their foreign partners, etc.;
- international treaties of Ukraine that were ratified by the Verkhovna Rada of Ukraine).
Let us consider each of the listed groups in more detail.
As it is well known, the acts of higher legal force, which constitute the legal basis for the protection of national interests of Ukraine in the economic sphere in general and in the field of trade and economic cooperation in particular, are: the Constitution of Ukraine [8], the law of Ukraine "On counterintelligence activity" [9], the law of Ukraine "On national security" [10], the law of Ukraine "On the Security Service of Ukraine" [11], National Security Strategy of Ukraine [12] and others related to the national security of Ukraine, as well as subordinate normative and legal acts.
Thus, the Constitution of Ukraine [8] (article 17), among the most important functions of the state determines the provision of its economic security, an important component of which, undoubtedly, is the security of its trade and economic cooperation. In its turn, the state, as the subject of maintaining the security in this sphere of public relations, is represented primarily by the Security Service of Ukraine as a state body of special purpose with the law enforcement functions. According to the paragraph 2, article 32 of the Constitution, for the benefit of national security, economic prosperity and human rights protection the authorized units of the Security Service of Ukraine within the scope of existing statutory provisions can implement relevant measures related to the covert receipt, revision, storage and processing of intelligence information on specific persons / groups of persons, circumstances and facts for the purpose of counter-intelligence support of trade and economic cooperation of Ukraine.
The provisions of the Law of Ukraine "On counterintelligence activity" [9], are important for the analysis of legal regulation of national interests' protection of in the sphere of trade and economic cooperation of Ukraine. In particular, the articles 2; 6; 7 and 8 define the grounds for counter-intelligence support of TEC in terms of detection and prevention of external and internal threats to the national security of Ukraine, elimination of intelligence, terrorist and other unlawful acts of foreign special services, organizations, individuals, groups of individuals to the detriment of the national security of Ukraine, as well as elimination of the conditions facilitating them and the reasons for their occurrence by means of public and covert counter-intelligence measures, conducting counter-intelligence proceedings, etc.
Therefore, it can be concluded that protection of the national interests in the sphere of TEC of Ukraine is a certain direction of counter-intelligence activity,
and that is why its legal foundations should be considered from the point of view of legal regulation of counter-intelligence activity in the economic sphere in general.
In this context, we should also take into account the law of Ukraine "On the Security Service of Ukraine" [11]. In particular, article 2 within the competence of the Security Service of Ukraine defines protection of the state economic potential from intelligence and subversion of foreign special services, attacks by individuals, organizations, groups of individuals etc. Article 24 among the duties of the Security Service of Ukraine points out the implementation of measures for counter-intelligence provision in the field of foreign economic activity, which is directly related to trade and economic cooperation.
Moreover, the Security Service of Ukraine, in accordance with the above-mentioned law, also fulfills tasks dealing with the prevention, detection, elimination and uncovering of crimes that threaten the vital interests of Ukraine, including those in the economic sphere. Since the unlawful acts in the sphere of economic and trade cooperation are of a complex character, can be performed from the legal positions and cause significant damage to the interests of the state, the protection of national interests in this sphere can certainly be attributed to a specific competence of the Security Service of Ukraine.
The law of Ukraine "On National Security" [10], in its turn, defines the foundations and principles of national security and defense, the goals and basic principles of state policy that guarantee the protection of society and every citizen from existing and potential threats. In particular, the article 3 states that among the fundamental national interests of Ukraine are "... sustainable development of the national economy ... integration of Ukraine into the European political, economic, security and legal space ... development of equal, mutually beneficial relations with other states ... State policy in the sphere of national security and the defense is aimed at providing ... the economic security of Ukraine ". In this context, the primary task of state security bodies is counter-intelligence protection of the economic security of the state, and its trade and economic cooperation as well.
Therefore it can be concluded that in the law of Ukraine "On National Security" there are certain legal foundations for the organization and implementation of the protection of national interests in the sphere of TEC of Ukraine. However, in the above mentioned law, compared with its predecessor - the law of Ukraine "On Fundamentals of National Security of Ukraine" [13] (repealed), the priority national economic interests are not defined, threats in various strategically important economic spheres, including the sphere of trade and economic cooperation, are not described.
It should also be noted that in the article 25 of the current law of Ukraine "On National Security" the following long-term planning documents are mentioned: National Security Strategy of Ukraine, Military Strategy of Ukraine, Public Security and Civil Defense Strategy of Ukraine, Military-Industrial Complex Development Strategy, Cybersecurity Strategy of Ukraine, National Intelligence Program etc. At the same time, unfortunately, no attention is paid to the de-
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velopment and implementation of the Economic Security Strategy of Ukraine, though, in our opinion, it will make a perfect sense in the context of further development of Ukraine as a sovereign state within current economic, political and military situation.
The provisions of the National Security Strategy of Ukraine, which indirectly address the problems of ensuring the state interests in the sphere of TEC of Ukraine, are also should be mentioned while defining the legal foundations of the national interests' protection in the corresponding sphere [12]. Thus, article 2 of the Strategy, among its objectives, states: "... providing a new quality of economic development", the achievement of which requires: "strengthening of the Ukrainian state by ensuring progressive sociopolitical and socio-economic development; qualitatively new state policy aimed at the effective protection of national interests in the economic sphere ...". Article 4 of the Strategy within the framework of the reformation of the Security Service of Ukraine declares that it will concentrate its efforts on "ensuring state security in the sphere of ... economic ... security". It should also be noted that according to this article one of the key conditions of the new quality of economic growth is the provision of economic security by "... increasing the sustainability of the national economy to negative external influences, diversification of external markets, trade and financial flows ...".
Proceeding from the above mentioned, it can be concluded that in the said legislative act, the legal foundations for the protection of national economic interests are somewhat generalized and not clearly specified according to various strategically important spheres of economy. At the same time, among the urgent threats to the national security of Ukraine, the legislator mentions "the absence of clearly defined strategic goals, priority directions and tasks of socio-economic development of Ukraine" (article 3 of the Strategy). The foregoing proves the necessity of developing a separate normative and legal act that would directly regulate the protection of national interests in various spheres of the Ukrainian economy, with due attention paid to its trade and economic cooperation.
It terms of our research it is also worth to mention the corresponding international agreements that were ratified by the Verkhovna Rada of Ukraine. In particular, these may include the principles of cooperation between certain countries in a certain area (for example, the most favored nation treatment, trade preferences, etc.), cover specific issues of cooperation, for example: the volume of goods supply, special regime for the exchange of goods, consular fees and taxes that will or may be applied to the import, export, transit and storage of goods, methods of their collection, etc. Among such international agreements on trade and economic cooperation, the following can be mentioned: Agreement between Ukraine and the United States of America on trade relations of 06.05.92; Regulation № 374/2014 of the European Parliament and of the Council of 16 April
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2014 on the reduction or elimination of customs duties on goods originating in Ukraine; Canada-Ukraine Free Trade Agreement (CUFTA) of August 1, 2017; The Arms Trade Treaty approved by the UN General Assembly on 2 April, 2013 and others.
In conclusion, the analysis of the current legislation of Ukraine lets us suggest that nowadays there is a certain legal potential for the protection of national interests of Ukraine in the sphere of its trade and economic cooperation. However, in the majority of normative and legal acts, this issue instead of being clearly defined, is considered rather fragmentarily, which gives grounds to argue about the necessity of their improvement.
Therefore, further research should consider the potential positive effects of developing and implementation of the Economic Security Strategy of Ukraine with a separate section devoted to the goals, priorities and tasks of the state policy in the sphere of trade and economic cooperation of Ukraine.
References
1. Foreign dictionary. - Moscow. : Russkiy yazyk., 1988. - 432 p.
2. Legal dictionary / [B.M. Babiy, V.M. Ko-retskiy, V.V. Tsvetkova]. - Kyiv : Akademiya nauk Ukrainy, 1974. - 848 p.
3. Great legal dictionary / [A.Y. Sukhareva, V.D. Zorkina, V.E. Krupskikh]. - Moscow : Infra-M, 1999. - 529 p.
4. Urgent issues of state and law theory. Part I. Urgent issues of state thtory: study guide / [S.M. Tym-chenko, S.K. Bostan, S.M. Legusha et al.]. - Kyiv : KNT, 2008. - 288 p.
5. Theory of state and law: textbook / S.L. Ly-senkov, A.M. Kolodiy, O.D. Tykhomyrov, V.S. Ko-valskiy; edited by S.L. Lysenkov. - Kyiv : Yurinkom. Inter, 2005. - 448 p.
6. Zaichiuk O.V., Onishchenko N.M. Theory of state and law. Academic course : textbook. URL: http://www.ebk.net.ua/Book/law/zaychuk tdp/zmist.ht m.
7. Rabinovych P.M. Basics of law and state theory : study guide / P.M. Rabinovych. - Kyiv : Atika. -2001. - 176 p.
8. Constitution of Ukraine. URL: http://za-kon1.rada. gov.ua/laws/show/254%D0%BA/96-%D0%B2%D1%80.
9. Law of Ukraine "On counterintelligence activity". URL: http ://zakon.rada. gov.ua/laws/show/374-15.
10. Law of Ukraine "On National Security". URL: https://zakon.rada.gov.ua/laws/show/2469-19.
11. Law of Ukraine "On the Security Service of Ukraine". URL: https ://zakon. rada. gov.ua/laws/show/2229-12.
12. National Security Strategy of Ukraine. URL: http://zakon0.rada.gov.ua/laws/show/287/2015.
13. Law of Ukraine "On Fundamentals of National Security of Ukraine". URL: http://za-kon.rada.gov.ua/laws/show/964-15 (repealed).
