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Security Issues
Reference:

Legal foundations of the national security of the Russian Federation

Shikhnabiev Rustam Abdulkadirovich

Senior lecturer; Methodologist of the All-Russian Institute for Advanced Training of Employees of the Ministry of Internal Affairs of Russia

142007, Russia, Moscow region, Domodedovo, Fir street, 3

rustamkaluga@yandex.ru
Other publications by this author
 

 
Afonina Irina Alekseevna

PhD in Law

Senior Research Fellow of the Research Department of the All-Union Institute of Advanced Training of the Ministry of Internal Affairs of Russia

142007, Russia, Moscow region, Domodedovo, Fir street, 3

irina9247@yandex.ru
Volkova Ol'ga Alekseevna

Inspector of the 5th Department of the zonal information center of the Central Internal Affairs Directorate for Moscow

38 Petrovka str., Moscow, 127944, Russia

irina9247@yandex.ru

DOI:

10.25136/2409-7543.2023.3.43748

EDN:

YYZCQI

Received:

09-08-2023


Published:

05-10-2023


Abstract: This article is based on the results of the historical and legal analysis of sources and documentation, which investigated the concept and structural features of the legal regulation of national security. The article identifies concepts and approaches to the formulation of the concept of "national security". The historical cross-section of the formation of the legal regulation of Russia's national security programs has also been studied. Method, methodology of the study. In the process of working on the article, relevant research tools and techniques of the general scientific type were used, as well as such methods of scientific cognition as analysis (including historical and legal, synthesis, method of abstraction and modeling, system-structural approach, functional and formal-logical methods). Thanks to the use of a system-legal approach, it became possible to build a hierarchy of existing regulatory legal acts that perform the role of regulators in matters of national security of the Russian Federation. The issues of protecting the security of the state and strengthening it serve as the foundation for protecting the vital values of the country and its interests. Due to the increase in the level of military threat and tension since 2014, as well as the intensification of this threat since the beginning of a special military operation in February 2022 by Russia in Ukraine, there is an objective need for an operational, strategic response of the state system to new military challenges and threats to the national security system of the country. The threat is the strengthening of destructive tendencies in the activities of Western states, the formation of foreign military-power infrastructure formations near the Russian borders, which can be considered as a source of risk and a possible springboard for future military operations. There is also such a type of threat as a sharp decrease in the pace of international cooperation, cooperation in various areas. Against this background, the author of this article proposes the development and adoption of a new federal law "On national Security" for the Russian Constitution.


Keywords:

safety, National security, strategy, sustainable development, national interests, national priorities, international threats, sanctions, sovereignty, legislation

This article is automatically translated. You can find original text of the article here.

Security issues have always been central to the life of every country. The significance of this problem is evidenced by the entire history of human development over many centuries [2].

The increasing level of threats and political challenges against the background of the beginning of a special military operation of the Russian Federation on the territory of Ukraine forces the leadership of our country to develop and take appropriate measures to implement productive solutions to protect the interests of the state and society. In this regard, the issue of effective national security in various aspects comes to the fore: both in the organizational and legal field.

Before proceeding to the question of the specifics of the legal regulation of the national security of the Russian Federation, it is important to consider the conceptual apparatus, as well as to determine the structure of this institution.

It is worth noting that currently the following terms are used in Russian legislation, but are not clearly defined: "security", "state security". Often, even in the legal field, one concept is replaced by another. There is also no consensus among legal scholars on the content of these concepts, as well as the concept of "national security".

Thus, some authors consider the term "national security" as an incorrect translation from the English expression "national security". In this case, "national" is translated not as "nation" or "national", but as "people, society, state" [1].

According to M.Y. Zelenkov, national security is "the protection of the vital interests of the individual, society and the state from external and internal threats, achieved by applying a system of measures of a political, economic, organizational, legal, military, ideological and other nature, adequate to threats to the vital interests of the individual, society and the state, ensuring their sustainable progressive development"[7].

Academician of Legal Sciences A.V. Opalev believes that "in a broad sense, national security is the protection of the foundations of a country's existence. In other words, state security is the highest level of national security" [8].

We agree with the opinion of V.G. Vishnyakov, who proposes the following definition of the national security of the Russian Federation: "the state of protection of vital interests of the individual, society and the state from internal and external threats, achieved by a combination of actions of state authorities, local self-government, public organizations and people on the basis of regulatory legal acts in order to ensure sovereignty and territorial integrity the state, its sustainable and progressive development" [3]. In our opinion, in this definition, the purpose of activities to ensure national security practically coincides with the purpose of activities to ensure state security in its traditional sense.

"National security" as a concept has been repeatedly formulated in various legal acts (in particular, in the National Security Strategy in the Decree of the President of the Russian Federation dated 17.12.1997 No. 1300 (ed. from 10.01.2000) "On the approval of the Concept of National Security of the Russian Federation (Expired) and the Decree of the President of the Russian Federation dated May 12, 2009 No. 537 (ed. from 01.07.2014) "On the National Security Strategy of the Russian Federation until 2020" (Expired)), while with each new edition, the definition of the term in question changed.

The definition of the term "national security" was given in the National Security Strategy of the Russian Federation until 2020, approved by Presidential Decree No. 537 of 12.05.2009. This definition corresponded with the previously established definition of the concept of "security" given in Article 1 of FZ-2446-1 of 05.03.1992 "On Security", as well as with the security objects formulated in it. This gives grounds for concluding that the two definitions of different terminology (security and national security") are equal in content. However, in our opinion, this is unacceptable from the standpoint of the very technique of jurisprudence. It is also important to emphasize that the current version of Federal Law No. 390-FZ dated December 28, 2010 (ed. dated 10.07.2023) "On Security" does not provide a definition of the terms "security" and "national security" at all.

Later, in the text of the Strategy on National Security in the Russian Federation, approved by Presidential Decree No. 683 of December 31, 2015, the concept of "national security" appeared in a more general, comprehensive formulation. It included various types and types of public security provided for by the Constitution of the Russian Federation (adopted by popular vote on 12.12.1993 with amendments approved during the all-Russian vote on 01.07.2020) and other legislative norms of the Russian Federation.

It should be noted that in the Decree of the President of the Russian Federation dated December 31, 2015 No. 683 "On the National Security Strategy of the Russian Federation" (Expired), the concept of national security has changed again and has the following definition: "the national security of the Russian Federation is the state of protection of the national interests of the Russian Federation from external and internal threats, in which realization of constitutional rights and freedoms of citizens, decent quality and standard of living, civil peace and harmony in the country, protection of the sovereignty of the Russian Federation, its independence and state integrity, socio-economic development of the country."

Summarizing the above, it is worth concluding that national security can be interpreted in the broadest sense as ensuring the conditions for the physical survival of society, the preservation of sovereignty and integrity of territories, the indivisibility of the country. National security also includes the creation by citizens and members of society of all the necessary conditions to ensure civil liberties, cultural development, and spiritual self-expression.

In the global world with its constant changes, for many countries and peoples, the issue of national security is considered a sign of stability, stability, and development of the country as a system of society. National security is a publicstate institution in which there must be reliable protection of the vital interests of each of the citizens from external threats and the influence of dangerous internal factors. Also, national security is a sign of the protection of public interests from any real or potential threats.

In any State, national security includes several constituent elements (separate spheres of activity). These are the military sector, economy, social sphere, politics, spiritual and moral life of society, etc. The current situation in the world is closely connected with the emergence of various threats to the state, serves as a source of new requirements for ensuring national security [4].

Ensuring national security within each country serves as an element of international security. In addition, national security serves as a specific strategy, the purpose of which is to ensure all the significant interests of citizens, the needs of the population of the country [6].

When discussing and considering internal national threats to Russia, it is worth studying a specific set of certain phenomena. First of all, they include corruption and social inequality of the population. It is also difficult to ignore a significant percentage of the population below the poverty line. Other internal threats include rising unemployment and price inflation, relatively new crisis trends in the development of the social institution of the family.

When moving on to the study of the issue of the specifics of the legal regulation of national security in Russia, it is important to note the following fact: over the past ten years, significant changes have appeared in Russian legislation regarding national security issues. This was mainly expressed in the introduction of complementary concepts, definitions and categories.

It is also important to note the fact that the Constitution of the Russian Federation does not use the concept of "national security". But at the same time, it is still a formative, initial legal platform for the development of various ways to ensure national security in our country.

The role of the Constitution of the Russian Federation is the leading one in the legal sphere related to ensuring national security. The main Russian law plays a key role in the modern solution of issues related to ensuring all areas of the country's security. First of all, all aspects and types of public relations are regulated through the Constitution of the Russian Federation. They are important for the personal safety of citizens, for public and state security. Secondly, it guarantees the integrity and sovereignty of Russian territories, which is of crucial importance for national security. Thirdly, the Constitution of the Russian Federation declares the Russian people, with its entire multinational structure, to be the bearers of sovereignty, the only source of state power. Fourth, the Constitution of the Russian Federation includes specific instructions on various aspects of national security, its varieties. And, finally, fifthly, the Constitution of the Russian Federation, as mentioned above, has become the basic legal act for developing ways to ensure national security.

In addition to the Constitution of the Russian Federation, the legal basis of Russia's national security is the principles and norms of international law (namely, the Universal Declaration of Human Rights (adopted by the UN General Assembly on 10.12.1948); the International Covenant on Economic, Social and Cultural Rights. Adopted on 12/16/1966 by Resolution 2200 (XXI) at the 1496th plenary session of the UN General Assembly), the Collective Security Treaty of May 15, 1992, etc.).

The formation of the legislative system of the Russian Federation on national security issues begins with the adoption of the above-mentioned Law of the Russian Federation "On Security" (dated 05.03.1992 No. 2446-1). He consolidated the key concepts and objects in the field of security, the corresponding powers of the authorities in matters of national security. It is important to note that this law lost its force after the publication of the new Federal Law No. 390 in 2010. As already noted, this act widely applies such a category as "security", but does not include its general interpretation, does not give a legal and formal definition of a specific phenomenon. The subject of regulation in this law is the key principles and content of activities to ensure security at the state level, security in society, ecology, economy, military sphere and other industries. Also, this law contains descriptions of the powers of federal authorities, state authorities of the subjects of the Russian Federation and local self-government bodies in the field of security on the territory of our country and defines the legal status of the Security Council of the Russian Federation [10].

When trying to identify the system of legislative acts in the field of national security of the country, it is worth considering its varieties in the context of public relations. In 1996, the Criminal Code of the Russian Federation No. 63-FZ of June 13, 1996 (as amended on 04/28/2023) (hereinafter referred to as the Criminal Code of the Russian Federation) was published and still serves as the only source of criminal law in Russia.

Article 2 of the Criminal Code of the Russian Federation establishes the main tasks of the criminal law: "protection of human and civil rights and freedoms, property, public order and public safety, the environment, the constitutional system of the Russian Federation from criminal encroachments, ensuring peace and security of mankind, as well as the prevention of crimes."

It is important to note that according to the content of the tasks outlined in the legal norms of the Criminal Code of the Russian Federation, it can be considered as a separate act of legislation designed to ensure national security. This is due to the fact that the Criminal Code of the Russian Federation includes an extensive, exhaustive list of criminal acts that are suppressed by the authorities in order to preserve and maintain the necessary level of national security. Along with this, the special part of the Criminal Code of the Russian Federation contains such sections as: section IX "Crimes against public safety and public order", section XII "Crimes against the peace and security of mankind". In these sections, the limits of responsibility for the most serious crimes are fixed, including those that are capable of endangering national security. For example, this category of crimes can include the activities of terrorist organizations, the revival of nationalist ideologies, calls for extremism, acts of proliferation of particularly dangerous weapons (mass destruction), etc.

Offences relating to national security are subject to regulation by the Code of Administrative Offences of the Russian Federation No. 195-FZ of December 30, 2001 (as amended on 04/28/2023) (hereinafter referred to as the Administrative Code of the Russian Federation). The provisions contained therein cover a wide variety of areas of administrative violations. For example, communication and information systems, the sphere of economics and finance, customs activities, state structures, the operation of the state border, issues of public security protection, accounting of military personnel.

The National Security Strategy adopted in 2021 is directly related to the introduction of amendments to the Russian Constitution in 2020 (specifically paragraph "m" of Article 71), significant changes taking place around the world and events that have already occurred. It is important to clarify that the national security of the Russian Federation should also be perceived through the prism of maintaining nationallevel security in other states, both friendly and unfriendly.

An important feature of Russia's National Security Strategy is that there is a possibility of its permanent adjustments. It is much easier to make changes in the composition of the Strategy than in the Federal Law. The strategy serves as a more convenient and flexible, functional document it is easy to adapt it to the dynamic conditions of a rapidly changing world. The last time changes to the Strategy were proposed was in 2020. In the process of the next revision, the legislator decided on the expediency of predicting the possible clarification of certain provisions in the document, which will take into account the specifics of the current situation around the world, the internal situation in the country. It was in 2020 that adjustments were made regarding the threat of degradation of the controlling regime over combat resources, weapons, and the risks of an increase in the number of international hotbeds of political and military tension. A special dedicated chapter is devoted to the problems of security in the information sphere.

When considering other regulatory legal acts that regulate issues of national security, it is important to emphasize one important point. In view of Russia's access to the sea and the long length of the maritime border, it is especially important to ensure the protection of national territorial interests within the existing sea area, taking into account the state territory on the coast, the presence of a special economic zone, its own continental shelf, open sea zones [5].

Issues, tasks, directions, principles, mechanisms for the implementation of security in naval activities are regulated by Decree of the President of the Russian Federation No. 327 dated 20.07.2017 "On Approval of the Fundamentals of the State Policy of the Russian Federation in the field of naval activities for the period up to 2030".

One of the modern threats to Russia is terrorism. In this regard, the President of the Russian Federation approved the Concept of Countering Terrorism in the Russian Federation (approved by the President of the Russian Federation on 05.10.2009), which defines the main directions and tasks for countering this criminal act. In addition to it, in 2018, the Concept of Developing a national system for countering the legalization (laundering) of proceeds from Crime and the financing of terrorism was approved (approved by the President of the Russian Federation on 30.05.2018).

There are also other documents adopted as part of the implementation of certain areas of national security (for example, Decree of the President of the Russian Federation dated 05.12.2016 No. 646 "On the approval of the Information Security Doctrine of the Russian Federation", Decree of the President of the Russian Federation dated 13.05.2017 No. 208 "On the Strategy of Economic Security of the Russian Federation for the period up to 2030", etc.).

In addition to these aspects, the system of sources of the rule of law in matters of national security includes other acts regional, subordinate.

As a result of this article, the following distinctive feature of the system of legal support in the field of national security can be noted: the structure of the key areas of this system does not yet have the required laws. At the same time, the central, most important areas of the national security system are subject to regulation through regulatory legal acts of the so-called "second level" [9].

Such legal documents include the Concept of National Security of the Russian Federation, the Military Doctrine of the Russian Federation (approved by the President of the Russian Federation on 25.12.2014 No. Pr-2976, Decree of the President of the Russian Federation dated 31.07.2022 No. 512 "On Approval of the Maritime Doctrine of the Russian Federation", Decree of the President of the Russian Federation dated 31.03.2023 No. 229 "On approval of the Concept of Foreign Policy of the Russian Federation", Decree of the President of the Russian Federation dated 25.04.2018 No. 174 "On approval of the Fundamentals of the State Border Policy of the Russian Federation" and other documents. With this in mind, there have also been cases of disagreements in federal laws and legislative concepts, and on the same issues. For example, in the text of the Military Doctrine of the Russian Federation, one can note the unjustified allocation, strengthening of the tasks of the military department (which distinguishes the doctrine from the composition of the National Security Concept) in relation to limiting and eliminating threats of an internal nature. Against this background, there is a decrease in the importance of the main goal in matters of ensuring Russian military security (prevention, localization and neutralization of military threats against Russia). This fact is direct evidence that it is necessary to develop a uniform, comprehensive and harmonious system of legal norms, with a clear hierarchy, uniform interpretation and interpretation on various issues. The system should also have strong relationships within its own structure, but not have disagreements on the merits regarding the interpretation and interpretation, implementation of these legal norms.

Among the problems in the sphere of ensuring national security are the existing gaps in regional legislation (specifically, in relation to the territories of the DPR and LPR, Kherson and Zaporozhye regions annexed to Russia). It is worth expressing an opinion on the need to develop a legal framework for ensuring the security of these regions. At the same time, the development should be based not on fears, stereotypes and suspicions about neighboring countries, not on approaches and positions of the defense type, but on specific legal outlines of understanding the events taking place, a sober analysis and consideration of all emerging opportunities, as well as their consequences.

Based on the above, it can be concluded that with all the vastness, clarity of the legal regulation of relations in the field of national security, as well as, taking into account the increased social importance of security and the nationwide nature of this phenomenon, it can be considered appropriate to adopt a special Federal law "On National Security". The proposed regulatory act can in the future become the basis for the development of Russian laws that regulate legal relations in this area.

References
1. Bobrovnikova O. V. (2022). Categories "state security" and "national security": theoretical and legal analysis. O. V. Bobrovnikova (Eds.). Bulletin of Economic Security (pp. 25-29).
2. Vatyl V. N. (2023). National security: historiographical discourses and conceptual concepts. V. N. Vatyl (Eds.). Bulletin of the Yanka Kupala Grodno State University. Series 1. History and Archeology. Philosophy. Political science (pp. 122-129).
3. Vishnyakov V.G. (2017). National security of the Russian Federation: problems of strengthening the state-legal foundations. Vishnyakov V.G. (Eds.). Journal of Russian Law (pp. 17-24).
4. Gagarina M. V. (2023). Influence of international threats on the national security of Russia. M. V. Gagarina, A. Hanifi (Eds.). Bulletin of the National Institute of Business (pp. 32-37).
5. Kardashova I.B. (2019). Fundamentals of the theory of national security: textbook for universities. I.B. Kardashov (Eds.). Yurayt Publishing House.
6. Nazarov V.P., & Afigenov D.A. (2020). Problems of the development of the general theory of national security in the context of the adjustment of the national security strategy of the Russian Federation. V.P. Nazarov, D.A. Afinogenov (Eds.). Power (pp. 9-19).
7. Zelenkov M.Yu. (2017). Fundamentals of the theory of national security. Zelenkov M.Yu. (Eds.). Journal of Russian Law (pp. 32-43).
8. Opalev A.V. (Eds.) (2017). The legal basis for ensuring the national security of the Russian Federation: monogr. UNITY-DANA.
9. Orlyanskaya T. V. (2023). System of legal provision of national security. T. V. Orlyanskaya (Eds.). Tribune of the scientist (pp. 89-93).
10. Feoktistov A.V. (2023). Evolution of the development of legislation on national security in the Russian Federation. A.V. Feoktistov, I. V. Zernov. (Eds.). Science. Society. State (pp. 68-76).

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A REVIEW of an article on the topic "Legal foundations of national security of the Russian Federation". The subject of the study. The article proposed for review is devoted to topical issues of determining the legal basis for regulating relations regarding ensuring Russia's national security. The author of the article devotes his research to the study of the conceptual apparatus, as well as to the characteristics of the main sources of law related to national security. The specific subject of the study was the norms of legislation, by-laws, and opinions of scientists. Research methodology. The purpose of the study is not stated directly in the article. At the same time, it can be clearly understood from the title and content of the work. The purpose can be designated as the consideration and resolution of certain problematic aspects of the issue of the legal foundations of the national security of the Russian Federation. Based on the set goals and objectives, the author has chosen the methodological basis of the study. In particular, the author uses a set of general scientific methods of cognition: analysis, synthesis, analogy, deduction, induction, and others. In particular, the methods of analysis and synthesis made it possible to summarize and share the conclusions of various scientific approaches to the proposed topic, as well as draw specific conclusions from the materials of practice. The most important role was played by special legal methods. In particular, the author actively applied the formal legal method, which made it possible to analyze and interpret the norms of current legislation (first of all, the Constitution of the Russian Federation, as well as by-laws in the field of national security). For example, the following conclusion of the author: "The role of the Constitution of the Russian Federation is the leading one in the legal sphere related to ensuring national security. The main Russian law plays a key role in the modern solution of issues related to ensuring all areas of the country's security. First of all, all aspects and types of public relations are regulated through the Constitution of the Russian Federation. They are important for the personal safety of citizens, for public and state security. Secondly, it guarantees the integrity and sovereignty of Russian territories, which is of crucial importance for national security. Thirdly, the Constitution of the Russian Federation declares the Russian people, with its entire multinational structure, to be the bearers of sovereignty, the only source of state power. Fourth, the Constitution of the Russian Federation includes specific instructions on various aspects of national security, its varieties. And finally, fifthly, the Constitution of the Russian Federation, as mentioned above, has become the basic legal act for developing ways to ensure national security." Thus, the methodology chosen by the author is fully adequate to the purpose of the study, allows you to study all aspects of the topic in its entirety. Relevance. The relevance of the stated issues is beyond doubt. There are both theoretical and practical aspects of the significance of the proposed topic. From the point of view of theory, the topic of ensuring national security is complex and ambiguous, especially in modern Russia, when the processes associated with internal and external threats become more complicated. To successfully respond to them, a set of measures is needed, including adequate legal regulation. It is difficult to argue with the author that "The increasing level of threats and political challenges against the background of the beginning of a special military operation of the Russian Federation on the territory of Ukraine forces the leadership of our country to develop and take appropriate measures to implement productive solutions to protect the interests of the state and society. In this regard, the issue of effective national security in various aspects comes to the fore: both in the organizational and legal field." Thus, scientific research in the proposed field should only be welcomed. Scientific novelty. The scientific novelty of the proposed article is beyond doubt. Firstly, it is expressed in the author's specific conclusions. Among them, for example, is the following conclusion: "it can be concluded that, with all the vastness and clarity of the legal regulation of relations in the field of national security, as well as, taking into account the increased social importance of security and the nationwide nature of this phenomenon, it can be considered appropriate to adopt a special Federal law "On National Security". The proposed regulatory act can in the future become the basis for the development of Russian laws that regulate legal relations in this area." These and other theoretical conclusions can be used in further scientific research. Secondly, the author offers generalizations of legislation and original comments on it, which may be useful for practicing lawyers in the field under consideration. Thus, the materials of the article may be of particular interest to the scientific community in terms of contributing to the development of science. Style, structure, content. The subject of the article corresponds to the specialization of the journal "Security Issues", as it is devoted to legal problems related to the legal foundations of ensuring the national security of Russia. The content of the article fully corresponds to the title, as the author considered the stated problems and achieved the research goal. The quality of the presentation of the study and its results should be recognized as fully positive. The subject, objectives, methodology and main results of the study follow directly from the text of the article. The design of the work generally meets the requirements for this kind of work. No significant violations of these requirements were found. Bibliography. The quality of the literature used should be highly appreciated. The author actively uses the literature presented by authors from Russia (Bobrovnikova O.V., Vatyl V.N., Vishnyakov V.G., Gagarina M.V., Nazarov V.P., Afigenov D.A. and others). I would like to note the author's use of a large number of examples from the practice of interpreting legislation, which made it possible to give the study a law enforcement orientation. Thus, the works of the above authors correspond to the research topic, have a sign of sufficiency, and contribute to the disclosure of various aspects of the topic. Appeal to opponents. The author conducted a serious analysis of the current state of the problem under study. All quotes from scientists are accompanied by author's comments. That is, the author shows different points of view on the problem and tries to argue for a more correct one in his opinion. Conclusions, the interest of the readership. The conclusions are fully logical, as they are obtained using a generally accepted methodology. The article may be of interest to the readership in terms of the systematic positions of the author in relation to the formation of legislation in the field of ensuring national security of the Russian Federation. Based on the above, summing up all the positive and negative sides of the article, "I recommend publishing"