Теоретичні основи та пріоритети розвитку права національної безпеки

To achieve the purpose of this study, the authors used the empirical materials concerning public relations, social communications in the field of national security, legislation in the field of national security and defence of Ukraine, international legal acts, analytical and review materials, results of scientific developments of Ukrainian and foreign researchers. The research materials consistently cover the basics of national security, guide in determining priorities for countering threats, and focus on new qualities of state sovereignty as a central issue of ensuring national security, which is reflected in law. Social communications in the sphere of national security determine the need for legal influence, the need to apply legal means in accordance with the purpose of such social communications, which leads to the development of an appropriate legal regime of national security and determines the ontological features of national security law.

At the same time, the epistemological justification of the methodology for studying national security law make provision for the definition of appropriate scientific approaches. For this purpose, the study used a considerable methodological potential of an interdisciplinary scientific approach, as well as philosophical views, political, sociological, and legal knowledge about law and the state, as well as their interaction. To cover the legal content and legal form of national security as a systemic integrity, the features of industry and applied scientific developments were used. The features of national security law were studied using systematic and institutional-functional approaches. The scientific development of the law of national security as integrity is carried out based on the possibilities of a comprehensive approach, which is focused on the integrity of the national security system. The axiological features of national security law were determined using an axiological approach, provided that there is a value-normative legal understanding and the development of an appropriate epistemological research platform. Non-linear features of national security law as a non-linear system were studied using a synergistic approach and the rhizome paradigm; this approach allowed covering the features of self-organisation of the national security law system, which manifests itself in the interaction of law, the state and civil society under the indispensable condition of recognising and ensuring human subjectivity.

The study employed dialectical, Aristotelian, historical legal, comparative-analytical, sociological methods, as well as methods of structural analysis, legal modelling, forecasting, etc. In particular, the dialectical method contributed to solving the issue of conceptualising the law of national security, defining its principles and functions based on objectivity, interrelation, and interaction with other components of the national legal system and with international law. The historical legal method was used to investigate the establishment issue of the theory of national security law and its further development, to determine the problems of scientific reflection of the legal content of national security and their solution by modern legal science. The Aristotelian method allowed identifying the features of national security law, its content properties, and the terminology inherent in this branch of law. The comparative legal method was used to establish the unity and interaction of national security law and military law, national security law and international security law. The method of structural analysis was used to highlight the regularities and features of the structure of national security law, determine its network nature, horizontal interaction in the context of types of national security that develop the unity and integrity of national security law. Sociological and statistical methods were applied both independently and in interaction with the dialectical method to evaluate the importance of national interests as objects of national security law. The method of legal modelling was used for a variable assessment of scenarios for the development of intra-industry formations of national security law, its operation under special regimes, the use of tools and resources of international security law to solve problems of overcoming potential and real threats to national security. The forecasting method was used to determine the prospects for the development of national security law and its operation in modern conditions of global transformations, institutional impact on the national legal system in the processes of legal acculturation, the effectiveness and necessity of legal reception, the consequences of such processes to ensure legal security.

Results and discussion

Establishment of the concept of national security law

The concept of national security law of Ukraine goes through a rather complex path of establishment and development in the context of the shaping of paradigms of modern law and the state, considering the achievements of philosophical, historical, sociological, political, and other branches of science and lies in the scientific development of the entire complex palette of theoretical and applied aspects of this complex issue for legal science by branch legal sciences, which allows reaching the conceptual level of its solution [5, p. 11-29].

The establishment of the concept of national security law takes place in the context of statutory and institutional definition of activities to ensure national security and protect national interests [5, p. 326-327]. Legal science based on a world-view understanding of national security and its essential-content features focuses on the development of research areas necessary for the practice of ensuring national security, which relate to the constitutional and legal nature of national security [3], administration in the field of national security [6], criminal law problems of ensuring national security [7], features of ensuring national security in the information sphere [8] and in other areas of national security, in particular military security [9].

Conceptualisation of the law of national security of Ukraine lies in awareness of the empirical basis of national security with its subsequent ontological interpretation in the legal dimension based on appropriate methodological foundations to develop an appropriate concept. The empirical basis of national security law is the totality of all factors that ensure the security of a person, society, and the state, namely public relations, social communications in the field of national security, constitutional provisions and rules of legislation on the legal status of subjects of the security and defence sector and the organisation of activities in the field of national security, international relations in the international security system [5, p. 30]. The development of national security law is focused on the application of a certain model of national security, considering the specific features of the national legal system, as well as economic, political, cultural, military, information, anthropogenic, and other features of society. At the same time, the model of national security and national security law of the United States deserves attention [10], using the relevant standards of the EU and NATO Member States.

The concept of national security law of Ukraine is based on a security culture, which in the legal sense is considered as a legal strategic culture that serves as the basis for legal strategic thinking, in particular, awareness of the essential features of national security, its purpose and appropriate governance decision-making [11]. Legal strategic culture and legal strategic thinking are described as competent and professional, must meet the requirements of activities in the field of national security. At the same time, the right of national security consolidates the activities of the state, civil society, and citizens to ensure national security and operates in all social areas related to ensuring national security. However, the most important for its subject area are safe conditions of human life, sovereignty, territorial integrity, and the constitutional order of the state [12].

The development of national security law in Ukraine is influenced by the international legal system and international security law. The fundamental principles of international law - non-use of force or threat of force; peaceful resolution of international disputes; non-interference; cooperation; equality and self-determination of peoples; sovereign equality of states; conscientious performance of obligations under international law; territorial integrity; respect for human rights; inviolability of borders - define the principles of national security and exercise organisational influence on the national security law. In the context of the international security system crisis, the national security law finds its development in the coordination of regulatory provisions and institutional activities with international law [13], confirms its social value as a regulator of public relations, strategic communications to protect national interests in the context of performing the international obligations of the state, ensuring the protection of human rights and fundamental freedoms.

The national security law forms the legal content and legal form of national security and asserts the integrity of national security in all its varieties, sets the legal standardisation and general binding nature of social requirements and regulations on national security issues, defines and ensures the protection of national interests. The national security law identifies the most stable meaningful connection with the legal order [14], which is essentially combined with the state of national security. Consequently, the right of national security is dependent on the legal order and affects the legal order due to the development of legal infrastructure and legal support for the protection of national interests.

The concept of national security law of Ukraine has its axiological basis, which contains a considerable number of interests and values that are important for society and a person, the achievement of which brings social existence to a level accessible to meet individual and group needs conditioned by the need for sustainable development. The axiology of national security [1, p. 250-304] looks multifaceted, passes from one quality of human and social existence to another, combines values of spiritual and material origin, is covered in the aspect from individual features to general, demonstrating its presence in the centre of the value reality of a person and their needs.

The legal regime of national security law identifies special features, contains a subject (public relations and social communications between subjects in the field of national security), a method that constitutes a set of imperative techniques and means of legal influence (legal regulation) on certain public relations and social communications, as well as the purpose of ensuring national security, which is specified depending on the sphere and safe living conditions of a person, society, and the state [5, p. 93-94]. The legal regime of national security is described by rather strict rules for governing public relations, which provides a mandatory method of legal regulation. Such a legal regime may acquire special features of a state of emergency or martial law, which, in particular, describes its exclusive public-legal nature, focused on the protection of generally significant interests.

Based on the subject and purpose of legal regulation (legal impact), national security law consolidates the corresponding regulatory requirements of constitutional law, administrative, criminal, information, environmental, and other branches of law related to the legal support of national security, reaching the level of consistency that allows effectively and successfully ensuring the operation of law in the field of national security. The origins of national security law are contained in constitutional law, and the most stable are the links of national security law with military law, where the commonality of objects and subjects, the unity of the legal regime for ensuring military security, protecting sovereignty and territorial integrity make it necessary to combine scientific developments and law enforcement practice [15].

Definition and coverage of the features of national security law in the system of law becomes possible based on value-normative legal understanding [16], thanks to which it turns out that the state is dependent on law and ensures its operation using appropriate mechanisms, the legitimacy of which is obtained in law as in the value-normative system. For its part, legal standardisation demonstrates the general obligation of legal prescriptions provided with the possibility of legitimate coercion, which gives grounds for the operation or the validity of law. Important for substantiating the concept of national security law is a sociological approach that asserts the activity-based foundations of law [17]. The need characteristics of the law cover the issue of interests that find their implementation in the national security law as national interests [18]. At the same time, the communicative theory of law [19] allows substantiating the influence of social and strategic communications on the development of the national security law.

National security law has clear features of a nonlinear system, which is manifested in its interaction with related branches of the national legal system and international law. The development of national security law in the system of national law occurs because of linear and non-linear processes, where the main standards do not have pre-programmed forms and content and are stated proceeding from the general need for the development of legal provisions in particular social communications. But social and moral- ethical, value standards are reflected in thejoint interaction of social subjects, when consciousness perceives and reflects these standards precisely as legal provisions and generally binding rules of conduct [20].

Signs of national security law as a value-normative system

The concept of national security law of Ukraine is based on the general features of law as a social phenomenon, covering its social, value-normative, need-based, communicative, and other features, and at the same time focuses on the features of the subject security sphere [21]. Such approach allows identifying the national security law as a branch of law, a value-normative system of generally recognised and publicly defined statuses, rules of conduct and communications in the national legal system aimed at ensuring safe conditions for human life, the existence and development of society and the state.

The subjects of national security law of Ukraine are the state, society, and the individual. These subjects are so- cietally individualised and specified in accordance with the specific features of communications in the field of national security. The law of national security recognises a person as the most important subject of law [22], the subjectivity of which is justified by the legal nature and directly depends on the possibilities of ensuring national security. The most important right of human existence - the right to life - actually proclaims the main idea of national security in its anthropological meaning and orients the corresponding activities of the state.

The right of national security of Ukraine has its objects - certain material and non-material benefits, which include national interests, achievements, needs and values of a person, society, and the state in the field of national security - from state and military to economic, information, anthropogenic security, etc. In the law of national security, its objects - national interests [23] - acquire general significance for society, individual and collective subjects, since they are law-oriented, protected by law or secured by law and are public, legally protected interests.

The unity of objects of national security law is based on a common goal, which is national security. The specification of objects in certain types of national security confirms its integrity, which determines the actual integrity of national security law. Objects of national security law exist as corresponding to the systemic multiplicity of national interests - vital interests of a person, society, and the state, the implementation of which ensures safe living conditions and the well-being of citizens, the sovereign existence of the state and society, and the democratic development of the state organisation of society. The main objects of the right of national security are a person's life in the social space, their physical existence and well-being. In these circumstances, the human-centrism of law is confirmed and revealed in the law of national security. Other important national interests, in particular the sovereignty and territorial integrity of the state, relate to the spatial conditions of human and social life, which is reflected in the law of national security.

The national security law of Ukraine as an independent branch of law is based on the corresponding principles. The principles of national security law consider the fundamental, initial ideas and provisions that determine the essence and content of the influence of law on ensuring national security. The basic principles of national security law should include the rule of law; legality; protection and guarantee of human rights and freedoms; priority of protecting national interests that are generally important for society and the state; compliance of branch provisions and regulations with the requirements of international law and international treaties to which the state is a party.

The functions of national security law of Ukraine specify the functions of national law [24] in its interaction with international law in the field of national security and cover all areas of ensuring national security and protecting national interests. Consequently, the functions of national security law are regulatory, security, information, preventive, predictive, as well as the function of legal support of national security. Considering scientific opinions regarding the pragmatic nature of the paradigm of legal functions and their relevance for influencing public relations, the allocation of other functions of national security law is not excluded [5, p. 79-92].

The function of legal support of national security is of particular importance in modern conditions. At the same time, legal security remains relevant for the national legal system, which should be developed through the use of a legal regime containing resources, methods, and means of influencing all components of the national legal system based on the rule of law to ensure their compliance with national culture, traditions, national identity, national needs, property, and interests. National security law as a nonlinear system reflects the content of this branch of law in its structure. The structure of national security law is developed as a result of the specification of the legal regime, where the subject - public relations and social communications in the field of national security - is a determinant, and the purpose of legal influence on such public relations and social communications is specified.

In such circumstances, the structuring of national security law reflects its specialisation and occurs in a horizontal combination, in the interaction of institutional regulatory communities focused on static branch features - system groups of legal provisions, as well as on its dynamic features - statuses and legal communications developed as a result of the action of such groups of legal provisions [5, p. 333-334]. The structure of national security law of Ukraine is a certain network of regulatory and institutional entities oriented horizontally in the national system of law, interdependent and connected by functional links to the legal support of the relevant type of national security, including international law.

The law of national security unites such (but not exclusively) inter-branch system formations: the law of information security law, the of national security law, the environmental and anthropogenic security law, the economic security law, the military security law, etc. The structure of national security law is dynamic, and the interaction of intra-industry entities is subject to constant changes in accordance with the specifics, status basis and social communications in the field of national security.

The law of national security of Ukraine reveals its essential and content features in the system of strategic communications [25], which are of particular importance in the field of national security and defence in the context of Ukraine's Euro-Atlantic integration. Strategic communications ensure cooperation between state institutions, society, and citizens in solving security issues and have a corresponding legal content. The application of national security law in the resolution of social conflicts allows coordinating and synchronising the actions of security and defence sector actors, in particular, in the manner of legal and necessary coercion to protect security in the interests of reaching a general compromise. As a result of the operation of national security law, strategic communications in the field of national security acquire the features of legal strategic communications.

Strategic communications in the field of national security are carried out considering national interests, and the national security law aligns the interests of individuals and individual social entities with national interests. That is why the national security law effectively affects bringing group interests in line with national interests, and in the case of a socially recognised and statutorily supported need to develop corporate interests, the national security law brings them to a level that ensures national security [5, p. 336-338]. At the same time, the national security law of Ukraine primarily ensures the subjectivity of a person in the sphere of national security and develops a legal barrier to the implementation of possible threats to their life. Subjective rights, freedoms, legitimate interests and legal obligations, as indispensable signs of human subjectivity, in this case are directly dependent on the solution of security issues and at the same time are determined by the level of safety of human life and the state of protection of national interests.

Among the basic human rights in the context of ensuring the right of national security of its subjectivity is the right to security [26], which has the features of an absolute right, but in particular legal relations in the field of national security it is a subjective right. The right to security in the concept of human subjectivity has an axiomatic meaning as the initial formula of human-centrism of legal reality. Therewith, the human right to security forms the corresponding institution of national security law. Normative-value prescriptions of national security law are implemented in social practice by the state and society as active subjects of national security law.

The subjectivity of the state in legal relations and strategic communications is stipulated in the provisions of the Constitution of Ukraine and specified in the legislation defining the tasks, functions, and powers of state institutions in the field of ensuring national security. Such institutions form the security and defence sector of the state, have a legal status defined by law and act in accordance with it within their competence. The subjectivity of society in legal relations and strategic communications in the field of national security is exercised through certain institutions of civil society. These institutions, in accordance with the legislation and their statutory provisions, exercise democratic civilian control over the security and defence sector, can take part in strategic communications, conduct analytical, predictive, and other activities to solve systemic national security issues.

Development of national security law of Ukraine

In the modern conditions of globalisation of the world order, the national security system also becomes the basis for the legal security of society and the state, which lies in introducing the rule of law in the national legal system and developing the rule of law. In these circumstances, the purpose of national security law is updated towards ensuring legal security, that is, the protection of the national legal system from negative factors of regulatory and institutional origin, which objectively accompany global changes in the world order [5, p. 249-251]. At the same time, the national security law receives qualitatively new features, developing a system of legal support for national security. In this system, the law of national security forms the regulatory, and determines the institutional and organisational components [5, p. 252-285].

The regulatory framework of the system of legal support for national security comprises the corresponding constitutional provisions, national legislation, and provisions of international law. Its institutional component makes provision for the activities of special services and law enforcement agencies, prosecutor's offices and justice bodies, and other subjects of the security and defence sector. For the organisational component of the system of legal support of national security, the system of training specialists for subjects of the security and defence sector, the development of a competent legal culture [27] and a conscious attitude of citizens towards national security as a vital basis for the existence of society and the state are relevant.

The development of national security law is topical in the context of a hybrid war [28], which has been waged by the Russian Federation against Ukraine for a long time. At present, the actions of hybrid warfare have gone beyond the Russian-Ukrainian armed conflict, and a number of states of the world have actually become participants in this confrontation using information, economic, energy, military, and other components, which certainly increases the importance of national security law.

Violations of the provisions and principles of international law by the Russian Federation in the creation of the so-called "security belt of the Russian Federation" ("managed conflict zones") on the territory of former Soviet Union republics that have embarked on the path of development of sovereign states require a suitable legal assessment to protect the national interests of such states. Notably, since the end of the 20th century, with the direct participation or support of the Russian Federation, longterm military and political conflicts began on the territory of Azerbaijan, Armenia, Georgia, Moldova, Tajikistan, and now - in Ukraine. There were also attempts by the Russian Federation to interfere in the internal affairs of the Baltic States, which managed to protect their peoples by gaining membership in the EU and NATO. In this context, scenarios for the development of events in the post-Soviet space deserve attention, which area addressed by Ukrainian researchers - specialists of the National Institute for Strategic Studies [29, p. 185-195], in particular:

1) "chaos scenario" - the emergence of a continuous conflict zone in the former Soviet Union;

2) "imperial scenario" - the creation of a regional postSoviet empire with the possible repetition of well-known negative historical consequences;

3) "split scenario" - the emergence of the Eastern European democratic and Eurasian imperial segments in the post-Soviet space.

Active attempts to implement the second scenario began 20-25 years ago. However, the events of the last 10-15 years indicate a steady trend towards the development of the Eastern European democratic space, which in the process of "hybrid confrontation" and as a result of such a process, can spread to the entire post-Soviet space. The development of the Eastern European democratic space can also be facilitated by the de facto unification of the Member States of the European Union, NATO, and other states of the world to jointly recognise the gross violations of the fundamental principles of international security and the provisions of international law by the Russian Federation.

With adoption in 2018 of the Law of Ukraine "On National Security of Ukraine"Law of Ukraine No. 2469-VIII “On National Security of Ukraine”. (2018, June). Retrieved from http://zakon.rada.gov.ua/laws/ show/2469-19 #Text., the process of developing a new model of the security and defence sector of Ukraine has commenced, which includes the following main components: 1) the system of governance and democratic control; 2) the security forces; 3) the defence forces; 4) the military-industrial complex. In the order of comparison, the authors of this study noted that according to Article 17 of the Constitution of Ukraine1, the following areas of national security are to be ensured: 1) protecting the sovereignty and territorial integrity of Ukraine; 2) economic security; 3) information security; 4) defence of Ukraine (military security); 5) national security; 6) protecting the state border.

At the same time, in 2018, based on proposals provided by scientists of the Section of National Security Law and Military Law of the National Academy of Legal Sciences of Ukraine, the Research Institute of Informatics and Law of the National Academy of Legal Sciences of Ukraine, and the Military Institute of the Taras Shevchenko Kyiv National University, a list of subject areas of research within the speciality 081 - "Law" was prepared and approved by Order of the Ministry of Education and Science of Ukraine No. 1477 of December 28, 20 1 8Constitution of Ukraine. (1996, June). Retrieved from https://zakon.rada.gov.ua/rada/show/254K/96-Bp. Order of the Ministry of Education and Science of Ukraine No. 1477 “On the Statement of the Approximate List and the Description of Subject Directions of Research within a Speciality 081 “Law”. (2018, December). Retrieved from https://mon.gov.ua/ua/npa/pro- zatverdzhennya-primirnogo-pereliku-ta-opisu-predmetnih-napryamiv-doslidzhen-v-mezhah-specialnosti-081-pravo., which introduced a new area - "national security law; military law". In 2019, the introduction of educational specialisations "national security law" and "military law" in higher education institutions began.

The formula for specialisation "national security law; military law" in accordance with the provisions of the specified Order of the Ministry of Education and Science of Ukraine was proposed in the following wording: "Research of public relations in the field of national security and defence, as one of the main functions of the state; legal bases of state sovereignty, constitutional order, territorial integrity and inviolability of the borders of Ukraine, legal support of state and military security and border security; system and state-legal mechanisms for ensuring national security and defence of Ukraine; statutory regulation of the activities of the security subjects and security sector, military law enforcement agencies and military justice bodies; legal issues of implementation of standards of the Member States of the European Union and the North Atlantic Treaty Organisation in the legislation of Ukraine".

Considering the above and other transformation processes taking place in Ukraine and the world, during 2018-2021, researchers of the Research Institute of Informatics and Law of the National Academy of Legal Sciences of Ukraine (currently the State Scientific Institution "Institute of Information, Security and Law of the National Academy of Legal Sciences of Ukraine") together with representatives of the Section of National Security Law and Military Law of the National Academy of Legal Sciences of Ukraine, Ivan Chernyakhovskyi National Defence University of Ukraine, Military Institute of Taras Shevchenko Kyiv National University, Military Law Institute of Yaroslav Mudryi National Law University, National Academy of Security Service of Ukraine, Bohdan Khmelnitskyi National Academy of State Border Service of Ukraine, National University "Ostroh Academy" and other institutions and establishments of Ukraine with the participation of specialists from the security and defence sector entities and representatives of a number of EU and NATO Member States, topical issues of ensuring national security and international legal order were elaborated and priority areas for the development of legal science in this area were proposed. Based on these and other scientific achievements [5; 15; 30], the Development Strategy of the National Academy of Legal Sciences of Ukraine for 2021-2025Development Strategy for National Academy of Legal Sciences of Ukraine for 2021-2025. Retrieved from http://www.aprnu.kharkiv. org/doc/strategiya_2021.pdf., approved by the General Meeting of the National Academy of Legal Sciences of Ukraine on March 26, 2021 (defines priority areas, tasks, and principles of further development of legal science, scientific support for the modernisation of state-legal relations in Ukraine, promoting the growth of legal culture among the population) was supplemented with a separate section "Legal Support in the Field of National Security and Defence". Research in the medium term can be based on corresponding areas, in particular:

- theoretical and legal grounds for ensuring national, information, and cyber-security, protecting the sovereignty, constitutional order, territorial integrity of Ukraine, human and civil rights and security;

- legal basis for the development and implementation of national policy on national security and defence, development of the national security system, reform and development of subjects of the security and defence sector and the military-industrial complex in the context of EuroAtlantic integration of Ukraine;

- theoretical foundations of the development of national security law, international security law and military law; methodological and applied principles for the development of legislation on national security and defence, legal support for the organisation and activities of security sector entities, the functioning of non-state security sector entities as a component of the national security system of Ukraine;

- legal principles for ensuring national security in the foreign and domestic political spheres, in the sphere of national security, in the military sphere and in the sphere of state border security; modernisation of the legal policy of Ukraine regarding economic, energy, and environmental security strategies in the context of global and regional transformations;

- problems of combating terrorism, as well as cybernetic and organised crime and corruption, countering crimes against the foundations of national security, against the peace and security of humanity and the international legal order; legislative support of intelligence and counter-intelligence activities;

- relevant issues of ensuring information security of Ukraine as one of the main functions of the state; legal grounds for ensuring cyber-security, combating cybercrime, cyber espionage, and cyberterrorism;

- legal support for the protection of personal data, information with restricted access, technical protection of information, prevention and counteraction of negative information influences and influences of information technologies to the detriment of a person, society, the state, and international law and order;

- legal aspects of the establishment and development of democratic control over state and non-state actors of the security and defence sector; legal grounds of civil-military cooperation, establishment and development of the strategic communications system of the security and defence sector and Euro-Atlantic integration of Ukraine;

- legal issues of establishment and development of systems of regional (subregional) and international security, international cooperation in this area and harmonisation of national legislation with the provisions of international law, EU legislation, and NATO standards in the field of security and defence.

Conclusions