Volume 12 - Issue 64
/ April 2023
57
http:// www.amazoniainvestiga.info ISSN 2322- 6307
DOI: https://doi.org/10.34069/AI/2023.64.04.5
How to Cite:
Shilin, M., Shmotkin, O., Chernysh, R., Chekhovska, M., & Konyk, T. (2023). Theoretical and legal basis for the implementation of
state policy on national security of Ukraine. Amazonia Investiga, 12(64), 57-64. https://doi.org/10.34069/AI/2023.64.04.5
Theoretical and legal basis for the implementation of state policy on
national security of Ukraine
Теоретико-правові основи реалізації державної політики із забезпечення
національної безпеки України
Received: March 1, 2023 Accepted: April 23, 2023
Written by:
Mykola Shilin1
https://orcid.org/0000-0001-8169-9324
Oleksii Shmotkin2
https://orcid.org/0000-0003-2803-271X
Roman Chernysh3
https://orcid.org/0000-0003-4176-7569
Mariia Chekhovska4
https://orcid.org/0000-0001-8135-7770
Tetiana Konyk5
https://orcid.org/0000-0002-5630-1190
Abstract
The purpose of the article is to determine and
substantiate the conceptual foundations of the
implementation of the state policy for ensuring
national security. The methodological basis of the
study consists of a set of general scientific and
specialized methods of scientific cognition, such as
dialectical-phenomenological, systemic analysis
and synthesis, structural-functional, deduction and
induction, among others. As a result of the study,
the essential features of the implementation of the
state policy for ensuring national security, its
subjects and objects, have been determined, the
mandatory components, principles, main forms,
methods, and means of implementation of the state
policy have been characterized. A classification of
the legislative activity of state authorities in the
implementation of state policy has been proposed
based on the nature of the activities of state bodies
and the level of the legislative body. Attention is
focused on the need to adhere to constitutional
principles in the implementation of the state policy
for ensuring national security. Suggestions are
made for ways to improve its scientific and
methodological support.
Keywords: law-making, legal forms, legal
instruments, national security, state policy.
1
Doctor of Science in Law, Professor, National Academy of the Security Service of Ukraine, Kyiv, Ukraine.
2
Doctor of Science in Law, Professor, National Academy of the Security Service of Ukraine, Kyiv, Ukraine.
3
Ph.D (Law), Аssociate Рrofessor Department of Science of Law, National Academy of the Security Service of Ukraine, Kyiv,
Ukraine.
4
Doctor of Science in Economics, Professor, National Academy of the Security Service of Ukraine, Kyiv, Ukraine.
5
Rivne State university of humanities, Rivne, Ukraine.
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Introduction
The state of ensuring the safe existence and
sustainable development of Ukraine as a
sovereign state depends on the development and
implementation of an appropriate mechanism for
the implementation of national security policy.
The need for scientific research on the issues of
defining and justifying the theoretical and legal
foundations of Ukraine's state policy in the field
of ensuring national security is due to the
dynamic socio-political changes taking place in
the world. It has acquired particular significance
in the current period after the large-scale armed
aggression of the Russian Federation against
Ukraine. This scientific article will describe the
essential features, principles, main forms,
methods, and means of implementing state policy
in the field of ensuring national security. A
classification of the legislative activity of state
authorities in the implementation of state policy
will be proposed. Attention will be focused on
the importance of adhering to constitutional
principles in implementing state policy for
ensuring national security. The ways of
improving its scientific and methodological
support will be outlined.
Methodology
For scientific research purposes, a combination
of interrelated and complementary research
methods is utilized.
The methodological basis of the research is a set
of general scientific and special methods of
scientific cognition: dialectical and
phenomenological, systemic analysis and
synthesis, structural-functional, deduction and
induction. Thus, the use of dialectical and
phenomenological methods, as well as systemic
analysis and synthesis, allowed to identify
essential features of the implementation of the
state policy on ensuring national security and
determine its essence. Thanks to the structural-
functional approach, its component elements,
forms, methods, and means were determined and
characterized, and the legislation of the state
authorities in this context was classified.
The article contains links to a number of
scientific sources, including articles indexed on
the scient metric basis of the Web of Science.
Theoretical Framework or Literature Review
Numerous approaches to analyzing the processes
of public policy have been developed by
scholars. Analyzing the works of foreign policy
scholars Michael Govlet and Mahadevan
Ramesh, it is noted that many theorists aim to
identify causal variables in the development of
public policy, or in other words, political
determinants, in order to answer the question of
what determines public policy: macro-level
socioeconomic factors or micro-level behavioral
elements. Such research is largely empirical and
often quantitative in orientation. Some analysts,
in an attempt to understand the development of
public policy, limit themselves to the
organization of the state itself.
According to Michael Govlet and Mahadevan
Ramesh, in general, one can agree with Peter de
Leon's assertion that policy research has a long
history but a short past. That is, the politics of
power has been the focus of many studies over
the past millennium, but its systematic study has
only been around for a few decades. This can be
explained by the existence of different
approaches to this problem that come from
different academic schools (Govlet, &
Magadevan, 2004, p. 15-16).
The implementation of state policy in general has
been the subject of research by various national
scholars. The implementation of state policy in
general is the subject of research by Ukrainian
scientists. In particular, they have: defined the
essence of legal principles for the
implementation of the state's economic security;
identified the subjects and forms of
implementing state policy in the field of internal
affairs (Avakian, 2015); studied mechanisms for
implementing state policy in the mass media;
examined the principles of implementing state
policy by law enforcement agencies; formulated
the concept and identified the main types of
mechanisms for implementing state policy in the
development of civil society; studied the
theoretical, legal and methodological
foundations for implementing state policy in the
field of European integration; analyzed the
components of the process of implementing state
policy in managing social risks; studied
legislative activity as a form of implementing
state policy; studied the constitutional principles
of implementing state policy (Dzevelyuk, 2016);
proposed conceptual principles on which the
mechanism for implementing modern state
policy should be formed (Tertychka, 2002.).
Certain scientific interest in the context of our
research is also represented by the works of the
aforementioned and other foreign authors
devoted to issues of state policy, theoretical and
Shilin, M., Shmotkin, O., Chernysh, R., Chekhovska, M., Konyk, T. / Volume 12 - Issue 64: 57-64 / April, 2023
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legal foundations for ensuring national security.
Some aspects of the outlined problem were
discussed by the authors in previous scientific
articles. (Vlasenko et al., 2020; Onyshchuk et al.,
2020; Chernysh et al., 2020; Chernysh et al.,
2022; Kostenko et al., 2021; Shilin et al., 2022).
Based on the analysis of available sources, it can
be argued that little attention has been paid to the
theoretical and legal foundations of
implementing state policy on ensuring national
security in Ukraine. Therefore, in today's
conditions, there is an urgent need to justify and
define the conceptual principles of implementing
state policy on ensuring national security,
including its essential features and constituent
elements, legal forms and means.
Results and discussion
In order to carry out its functions, which are
divided into internal and external, the state uses
specific means (resources of state power) and
relies on a complex of special bodies that
together make up the relevant executive
mechanism of the state. Ukraine implements its
function of ensuring national security through the
corresponding policy. From our perspective,
state policy is a system of ideas, actions, and
relationships of subjects of state policy regarding
the formation, formulation, and implementation
of state interests. State interests are the conscious
state needs of subjects of state policy for the
realization of national values (Shilin et a., 2022).
In our opinion, the essential features of state
policy are as follows:
− it constitutes a purposeful action - activity /
inactivity (in some cases it may be
manifested in the form of abstention from
actions, such as not participating in certain
political blocs, international agreements,
contracts, etc.) aimed at solving socially
important problems in a certain sphere of the
state's vital activity;
− its goal is to ensure sustainable development
of society and the state as a whole or of
individual spheres of their vital activity;
− it is formed and implemented by the state in
the interests of the state and society;
− it has a mandatory nature;
− it is of a complex, systemic character;
− it is a legal category based on the provisions
of the current legislation, primarily in
accordance with constitutional principles;
− it is established through the adoption of
corresponding program documents in the
form of separate normative legal acts
(doctrines, strategies, concepts, laws);
− it involves influencing social relations
through appropriate forces and means, forms
and methods;
− it is based on the results of analysis of a
specific situation in a certain sphere of the
country's vital activity;
− it has a legitimate and legal character;
− its executive subjects are both state bodies
and non-governmental organizations, public
associations;
− it is implemented through certain forces and
means, forms and methods based on
constitutional principles.
Based on the above, we consider it possible to
define state policy as a purposeful, systematic,
legislatively regulated action aimed at solving
socially important problems identified through
analysis, by influencing other relevant entities
through certain forces and means, forms and
methods grounded on constitutional principles
and social relations, with the aim of ensuring
sustainable development of society and the state
as a whole, or of individual areas of their life
activities.
The essence of state policy in ensuring national
security lies in the formation and implementation
of a corresponding system of influence on certain
areas of the state's life activities, aimed at
guaranteeing its safe functioning and sustainable
development (Shilin et al., 2022).
Various forms of state policy implementation are
used to achieve the defined goal of the state
policy. There is no unanimous opinion on them
in the theory of security studies. In particular, in
our opinion, the position of Avakian T. looks
contradictory in this regard. Thus, in one case, he
argues that "the state policy is implemented in
two forms: state (since the relevant bodies are
public authorities) and public (which consists in
the participation of citizens in the
implementation of local government)". At the
same time, he believes that, depending on the
legal status and legislative basis, the state policy
can be implemented "in various forms, such as
legislative, law enforcement, administration of
justice and determination of the limits of legal
responsibility for a committed offense,
referendum, rallies, elections, etc.". Otherwise,
according to him, it is advisable to distinguish
legal (lawmaking, rulemaking, law enforcement)
and democratic (participation of non-state actors,
public control, the dominance of the interests of
the people, etc.) forms of security policy
implementation (Avakian, 2015). In addition, he
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includes financial, logistical, educational,
preventive, organizational and other non-legal
forms. The so-called democratic forms of
security policy implementation may include the
participation of non-state actors, public (civil)
control, the dominance of the people’s interests,
etc.
From our point of view, there are two main forms
of implementing state policy: legal and
organizational. Legal forms of implementing
state policy are those forms that result in the
issuance of a legal act - normative or individual.
Organizational forms are those forms that are
based on laws, primarily the Constitution, but do
not result in the issuance of legal acts. Legal
forms consist of two types: legal-forming and
legal-implementing forms. There are such types
of legal-forming forms of implementing state
functions as international law-making and
national law-making.
From our point of view, there are two main forms
of implementing state policy: legal and
organizational. Legal forms of implementing
state policy are those forms that result in the
adoption of a lawful act - normative or
individual. Legal forms consist of two types:
lawmaking form and law enforcement form.
Such types of law-making forms of realization of
state functions are international and national law-
making. International lawmaking can take the
following forms: lawmaking by global
international organizations (e.g., the UN);
lawmaking by regional international
organizations (e.g., the European Parliament).
National lawmaking, in our opinion, consists of
lawmaking by the people and lawmaking by state
bodies. The people’s lawmaking may take the
form of a national or local referendum.
Lawmaking by public authorities can be
classified as follows:
1. By the nature of the activities of the state
bodies: lawmaking by the Head of state;
lawmaking by legislative bodies; lawmaking
by judicial bodies; lawmaking by executive
bodies; lawmaking by control and
supervisory bodies.
2. By the level of lawmaking body: lawmaking
by supreme bodies of the state; lawmaking
by central bodies of the state; lawmaking by
local authorities.
In addition to lawmaking forms of implementing
state policy, there are also law enforcement
forms, which are divided into the simple (direct)
implementation of the law and complex or
application of the law.
There are the following forms of direct
implementation of law in the exercise of state
functions: use of the law, enforcement of the law,
and observance of the law.
The application of law as a form of state policy
implementation consists of constituent,
regulatory, and protective activities, subdivided
into other forms.
Establishment law enforcement is a form of state
policy implementation aimed at creating
organizational structures that implement state
policy and at forming the composition of such
structures, i.e., appointing officials and other
persons of these structures.
Regulatory law enforcement activity is a form of
state policy implementation, which consists of
regulating the lawful behavior of legal entities
based on regulatory legal norms. It, in turn,
consists of the following forms of state activity:
law-making, law-altering, and law-terminating.
Security law enforcement activity is a form of
state policy implementation, which consists in
influencing the unlawful behavior of legal
entities in the field of national security based on
security legal norms. It includes the following
forms of activity: judicial, pre-trial investigation,
operational and investigative, intelligence,
counterintelligence, control and supervision, and
administrative.
Summarizing the above, it can be stated that the
state policy regarding ensuring the national
security of Ukraine is closely linked to the law.
Organizational forms of state policy
implementation are based on law, but due to their
implementation, legal acts are not issued.
Organizational forms of implementation of state
policy are divided into the following types:
organizational and structural forms are forms of
internal and external organization of structures
that implement state policy; organizational and
informational forms are forms of information
support for the implementation of state policy;
organizational and ideological forms are forms of
ideological influence on social actors in the
process of exercising their respective functions;
organizational and material forms are forms of
using material phenomena in the process of
implementing state policy.
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In addition to forms, there are methods of
implementation of state policy - these are ways,
techniques, and means by which state policy is
implemented. They are the means of the
purposeful organizational influence of the
subjects implementing state functions on the
objects under their jurisdiction.
Thus, the methods express the actual content of
the activities to implement state policy. At the
same time, they are inextricably linked to the
forms of their implementation. If methods
characterize the internal side of the activity of
implementing the state policy, then forms
characterize the external side. Methods are the
activity’s content; forms are this activity’s
external expression. Methods are a kind of
content of the forms of state policy
implementation. In this regard, the types of
methods are closely related to the kinds of forms
of implementation of public policy (Shmotkin,
2016).
Avakian T. believes that among the methods that
are more or less inherent in all the above forms
of security policy implementation, one can
distinguish the methods of legality commitment,
coercion, recommendation, encouragement,
supervision, control, explanation and
information (Avakian, 2015).
In our opinion, we can distinguish between
general, unique and specific methods of
implementing state policy. The general methods
are persuasion and coercion.
Persuasion is a method of influencing the
subjects of state policy implementation on other
individuals, resulting in these individuals
voluntarily performing actions to realize certain
functions.
Coercion is a method of influencing state
policymakers on other individuals. As a result,
these individuals are forced to perform actions to
realize certain functions. Coercion can be
classified as a method of implementing state
policy depending on: the subjects of coercion; the
relationship with law; the branch of law that
mediates coercion; the objects of coercion; the
nature of legal situations; the nature of
restrictions; the areas in which coercion is
applied; and the means of influence.
Persuasion and coercion, as general methods of
implementing state policy, are realized through
unique methods. Because they are inextricably
linked to the forms of their implementation,
special methods of state policy implementation
can be classified according to the latter, i.e., into
legal and organizational. Legal methods, in turn,
are divided into lawmaking and law enforcement
methods, and the last into direct implementation
and law enforcement methods. Methods of law
application have varieties: methods of
constituent activity, methods of regulatory
activity, and methods of security activity, which
are divided into more specific methods according
to the specialization of these three types of
activity, for example, methods of
counterintelligence activity, methods of judicial
investigation, etc. (Shmotkin, 2016).
Tertychka V. argues that "the mechanism of
implementation of modern state policy is based
on the following conceptual principles: the
formation of a legitimate subject and institutional
hierarchy of state policy; development of a
strategic course and adoption of state decisions;
administrative and other means of implementing
management decisions; a block of state control
and arbitration, ensuring self-correction of the
political regime and feedback from the objects of
state leadership" (Tertychka, 2002).
Substantiating the appropriateness of
understanding the phenomenon of public policy
as a relatively stable, organized and purposeful
activity/inactivity of state institutions, carried out
by them directly or indirectly about a particular
problem or set of issues that affect the life of
society, Tertychka V. notes that the above
definition of public policy implicitly implies that
it is based on the law and must be legitimate
(Tertychka, 2002). A universal way of fixing
these rules and regulations is the method of
constitutional definition. By making these rules
and principles imperative, the state guarantees
that all participants in socio-political relations
will adhere to them. At the same time, as a
mechanism of institutionalized coercion, it will
act according to specific standards. Therefore, it
is natural that in all democratic countries, without
exception, state policy programs are constantly
developed and implemented by the constitution
(Gladunyak, 2007).
We support the position of scholars who believe
that "the implementation of state policy by public
authorities depends, first of all, on the model of
the organization of the state power itself, its
relations with society, which is constitutionally
recognized in the country and implemented in the
practice of state and public life. Therefore, the
state policy of a legal, social state that recognizes
civil society and fully promotes its development
is always characterized by several mandatory
properties. It is carried out based on certain
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principles, such as observance and guarantee of
human and civil rights and freedoms. After all,
the highest value of the state policy of a legal,
social state is human rights, and its central and
primary goal is to ensure these rights, maintain
an atmosphere of respect for them, and guarantee
the principles of the rule of law and legality
(Dzevelyuk, 2016).
Legal measures implement the state policy on
ensuring national security within the framework
of regulatory and legal program documents. At
the same time, normative legal acts establishing
permits, prohibitions and restrictions must
comply with certain principles which are the
fundamental basis on which rulemaking is based,
namely:
1. Democracy consists of providing guarantees
in the norms establishing prohibitions and
restrictions to prevent violation of the rights
and freedoms of citizens and the realization
of the interests of the people and all social
groups of the country.
2. Legality implies compliance with the
established prohibitions and restrictions
with the normative legal acts of higher force,
their application only by authorized
structures, within the limits of their powers
defined by law.
3. Humanism implies compliance with the
prohibitions and restrictions outlined in the
adopted normative legal acts with public
humanistic values and the absence of the
possibility of violating universally
recognized human rights for the sake of
group interests and ensuring the realization
of these rights.
4. Systematic approach means that legal acts
that deal with permits, prohibitions and
restrictions should be created on the
principle of "from general to specific,"
should not contradict each other and should
be adopted simultaneously with procedural
ones.
5. Scientific basis is the scientific justification
for establishing specific permits,
prohibitions and restrictions.
6. Expediency means that a regulatory legal
act, which prescribes permits, prohibitions
and restrictions, is adopted only in cases due
to public needs. These prescriptions are the
most optimal means of ensuring sustainable
and secure development of the state.
7. Objectivity, which means that social
regularities should be reflected in legal acts
in reality. In contrast, the frequencies of
national society should be imperative
(primary), and those of world society should
be dispositive (secondary).
8. Reasonableness means that normative legal
acts that define permissions, prohibitions
and restrictions are adopted only when social
relations objectively determine them based
on objective information. These legal
provisions can best regulate those relations
that need to be held.
9. Systematic nature, which implies the
existence of an official strategy and tactics
of lawmaking, the adoption of regulatory
legal acts appropriate economic and other
social conditions.
10. Transparency means that plans for
legislative work on establishing permits,
prohibitions and restrictions should be
known to the people, and the process of
preparing relevant normative legal acts
should be clear.
In our view, the subjects of implementing state
policy on ensuring national security are the
executive authorities, intelligence,
counterintelligence, law enforcement agencies,
the Armed Forces and other military formations,
institutions of civil society, and Ukrainian
citizens.
The objects of implementing state policy on
ensuring national security are the provisions of
program-target and organizational-
administrative documents adopted at the
legislative level (laws, doctrines, strategies,
concepts, and other legal acts approved by the
Verkhovna Rada, decrees of the President of
Ukraine, resolutions of the Verkhovna Rada and
the Cabinet of Ministers of Ukraine), aimed at
solving actual social problems of national
security, ensuring safe functioning and
sustainable development of the country or its
individual spheres of life.
Based on the above, the essence of implementing
state policy to ensure national security lies in the
implementation of legislative decisions aimed at
solving current social problems related to
national security. This is done to ensure safe
functioning and sustainable development of the
country, through the application of relevant legal
tools such as permits, obligations, prohibitions,
and restrictions by designated entities for the
proper regulation of social relations in specific
areas of the country's activities.
In a sovereign, independent, democratic, social
and legal state (as the Ukrainian state is
proclaimed in the Basic Law) (Law 254к/96-ВР,
1996), the basis for regulatory influence is the
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system of means and methods of democracy, and
the functional (regulatory) properties of law as a
universal regulator of social relations. European
countries’ political and legal practice proves that
democratic and lawful means and methods
ensure the delimitation of powers of security
subjects and determine the procedure for using
unique means of regulating public relations
(Shmotkin, 2016, p. 121-124).
The adoption and application of methods and
means of influence (permits, obligations,
prohibitions, and restrictions) on social relations
with the aim of their proper regulation in the
sphere of ensuring national security without
corresponding legislative regulation should be
recognized as illegitimate.
Attempts to implement the state policy deviating
from the constitutional principles and values
cause respective negative consequences,
primarily threatening national security since the
inability to adhere to its organizational principles
does not allow the relevant entities to properly
fulfill the constitutional tasks of guaranteeing
state sovereignty, ensuring the rule of law and
legality, human and civil rights and freedoms.
Conclusions
The implementation of the state policy on
ensuring national security of Ukraine must be
based on constitutional principles. The main
forms of implementation are legal and
organizational. Legal forms consist of two types:
legislative forms and law enforcement forms,
which in turn are divided into other varieties.
Organizational forms are divided into:
organizational structure forms; forms of
information support; forms of ideological
influence on social entities; forms of use of
material phenomena.
The determination of forms, methods, and means
of implementing the state policy on ensuring
national security of Ukraine directly depends on
existing and potentially possible dangers, threats,
risks, and challenges to national interests, as well
as the specifics of specific spheres of the
country's life and peculiarities of social relations
in them, which require urgent regulation due to
the presence of existing problems that negatively
affect the safe functioning and sustainable
development of the state.
The essential features of the implementation of
state policy to ensure national security as a legal
category are:
− implementation by security sector entities of
mandatory legislative decisions aimed at
guaranteeing the safe and sustainable
development of the state;
− the presence of a defined system of relevant
executive subjects and a complex of tools
capable of solving existing social problems
in the field of national security, as stipulated
by the legislation;
− legitimate influence by executive subjects of
state policy on specific areas of the country's
life and social relations, which is capable of
countering existing and potentially possible
dangers, threats, risks, and challenges to
them and guaranteeing national security;
− application of appropriate legal means such
as permits, prohibitions, obligations, and
restrictions for legitimate influence on social
relations, and the use of forms and methods
that comply with constitutional principles;
− participation of civil society institutions and
individual citizens in the implementation by
security sector entities of mandatory
legislative decisions aimed at guaranteeing
the safe and sustainable development of the
state (providing practical assistance in
carrying out certain measures to implement
state policy by security sector entities,
exercising public control over the activities
of state bodies and officials in this field).
The prerequisite for the implementation of state
policy is the development and implementation of
the necessary regulatory and legal framework
required for this purpose, which is of particular
importance in ensuring the principle of legality.
The implementation of state policy to ensure
national security is carried out through lawful
measures within the framework of regulatory and
legal program documents. In this regard,
regulatory and legal acts establishing permits,
prohibitions, obligations, and restrictions must
comply with certain principles that constitute
fundamental foundations on which legislative
activity is based.
In order to improve the implementation of
Ukraine's state policy on national security, it is
deemed appropriate to:
− conduct additional analysis of the current
operational situation to determine the real
state of implementation of existing
legislative decisions aimed at addressing
current national security issues, and develop
measures to address any identified
shortcomings;
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− plan and conduct a series of studies to
determine the most effective mechanism for
influencing social relations that can solve the
task of proper implementation of Ukraine's
state policy on national security;
− identify and recommend the most acceptable
complex - optimal set of methods and means
for implementation by the subjects of the
security sector of the state policy on national
security as a whole, as well as in specific
areas of the country's life;
− determine all possible forms and ways of
participation of civil society institutions and
citizens in the implementation of the state
policy on national security in the current
period;
− develop a reliable and effective mechanism
for interaction and coordination of the
subjects of the security sector among
themselves and with civil society institutions
for their proper implementation of the state
policy on national security.
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