Military and administrative law: development trends in the context of Russian military aggression challenges and threats

Military and administrative law: development trends in the context of Russian military aggression challenges and threats

02.07.2023

Petro Dikhtiievskyia, Volodymyr Pashinskyib, Nataliia Zadyrakac, Liudmyla Сhuprynad, Oleksandr Kryvenkoe

 

Military and administrative law: development trends in the context of Russian military aggression

challenges and threats*

 

DOI: 10.26350/18277942_000137

Summary: 1. Introduction. 2. Military-defence complex as the main component of the state formation. 3. Military-administrative law as a guarantor of statehood security. 4. Regulation of military-administrative law in the context of the Russian-Ukrainian war: advantages and disadvantages. 5. Conclusions.

 

 

1. Introduction

 

The relevance of this scientific research is stipulated by the growing role of military-administrative law in ensuring the defence of Ukraine, where the reason is grounded not only in the excessive increase in the trend of terrorist attacks. The emergence of armed and spread of military conflicts masked as diplomacy in resolving controversial international and domestic issues have been observed, but also this gives an opportunity to protect national interests in order to build an effective system of national security and defence, which covers all levels of security from economic to military. Since 2014, the issue of protecting Ukraine's national interests has been reformatted from theoretical discussions and scientific research into practical actions within the framework of state security policy. These transformations are caused by the need to create a stable and reliable defence sphere as a result of Russia's unprecedented violation of the norms of international law, the encroachment on the territorial integrity and sovereignty of Ukraine caused by the occupation and annexation of the Autonomous Republic of Crimea, the conduct of a hybrid war in the east of the country, and Russia's open full-scale invasion of Ukraine. However, despite many years of state policy in a real “war regime” and attempts to ensure effective legal regulation of the defence sector Ukraine still does not have a transparent concept of legal regulation in the field of state defence. Today, the question is no longer just about the legal regulation of the anti-terrorist operation or the Joint Forces Operation, but about the international armed conflict. In fact, it is a full-scale war because of Russian armed aggression against Ukraine and therefore the approach to solving the problems of legal regulation, administrative and legal support of the defence sector should be completely different[1].

The question of the formation and development of military administrative law is a subject of discussion in the circles of scholars. Much attention has been given to the study of this topic by scientists, exploring the issues of administrative and legal regulation in the field of defence and focusing on the search for the essence and content of the concept of “administrative and legal regulation of the defence field” and its tasks. Also among the researchers of this issue is B. Maziarz[2], who studied the origins of the formation of territorial defence forces as part of the Armed Forces in the example of Poland and studied the problems of legal regulation of relations arising in the field of counterterrorism. Regarding the issue of legal regulation of the interaction between civil society and the armed forces, I. Koropatnik[3] has conducted many studies, especially regarding the administrative and legal regulation of the activities of volunteer organizations and charitable foundations in the areas of assistance to the Armed Forces. I. Ostapenko[4], in particular, studied the problems of legal support and application of Ukrainian legislation on administrative offences committed by military personnel and persons liable for military service[5].

Although today there is a clear understanding of the transformation and development of the field of military-administrative law, the real problem is the lack of proper attention from the political and scientific community to the development of the field of administrative and legal support of state defence and clarification of the legal nature of state defence. The problems pertain to conceptual and methodological foundations of defence, the system of public administration of state defence and components of defence forces. This is also about the determination of the essence and content, object and subject, structure of administrative and legal relations in the area of defence, legal regulation of relations in the area of defence, clarification of the administrative and legal status of defence entities and delimitation of their functions and powers[6]. Important factors influencing the real state of development of this issue are also the military-political events of 2022, caused by the war of Russia against Ukraine and active hostilities, socio-economic factors and the European integration process, the essence of which is the defence reform in accordance with NATO (North Atlantic Treaty Organization) standards. However, even despite the existence of significant gaps and problems, it is clear that the search for a new conceptual approach to the role of administrative and legal regulation in the defence sector and the study of methods to develop military-administrative law are prerequisites for improving the system of public management in the field of defence of the state. This paves a real way to improve the legal support of the Armed Forces of Ukraine as the main subject of state defence[7].

The purpose of the research is to study the possibility to separate military-administrative law into a sub-branch of Individual Administrative Law, to determine the scope of influence and regulation of these social relations, to solve theoretical issues and improve the current system of defence capability of the state in the conditions of war with Russia. In achieving the purpose of this study, the following general philosophical, general scientific and special legal methods of research and cognition were used, namely the dialectical method, with the help of which the legal nature of the category of military-administrative law and administrative-legal support of the defence of the state was investigated. Using the method of synthesis and analysis, the authors investigated the regularities and peculiarities of the development of military-administrative law as a sub-branch of the Individual Part of Administrative Law, provided a definition of military-administrative law and substantiated the need for its separation. The historical method enabled to study in detail the development of this sub-sector in retrospect. The combination of historical-legal and formal-legal methods contributed to the study of trends and directions of the development of military-administrative law in the context of Russian military aggression.

 

2. Military-defence complex as the main component of the state formation

 

Security and defence are the key factors for the emergence, development and functioning of any state. These basic categories are the guarantees of sovereignty, territorial integrity and inviolability, as well as the conditions of its existence on the geopolitical map of the world and development from ancient times to the present. Ukraine is no exception, therefore, with the establishment of its independence, the main priority and primary task was to build an effective system of national security and defence that could withstand all modern challenges and threats, both internal and external, and at the same time not to lead to a change in political configurations. However, with the outbreak of Russia's brutal and illegal war based on the model of aggressive actions against Ukraine and our neighbours, notably the entire transatlantic community as a whole, the issue of improving the security and defence area is too sharp[8].

Building defence institutions is a priority of any modern country, as it helps to eliminate gaps in the national security and defence sector. It is talking about the creation of a national defence management architecture, which should be discussed in the context of military administrative law[9]. Ensuring defence and national security dates back to ancient times, and has passed a long historical path in its development, which resulted in the formation of a modern defence mechanism, as well as the establishment of its legal regulation in the form of administrative and military law. Public consciousness has been shaping the attitude to military formations, relations between them and the state, military administration and the state defence system for centuries since the emergence of tribal formations. The first manifestations of building the defence and security system of Ukrainian statehood were the so-called fortified settlements, and the norms that regulated social relations in this area were customs and traditions. With the completion of the political consolidation of the Eastern Slavs and the formation of Kyivan Rus, there were changes in the military administration. During this period, administrative and military management were as one, and the responsibilities of managers were deemed inseparable. As for the legislative system, social relations were regulated by customary law, as well as acts of princely legislation, in particular charters and contracts[10].

With the development of Ukrainian statehood and the formation of the Hetmanate, special bodies gradually began to appear, whose functions included the regulation of public relations in the field of defence. In particular, it is talking about the so-called “military councils”, whose decisions were equal to laws and considered binding. Active development of military business lead to its transformation into a scientific scope, which resulted in new disciplines and fields of military art. The period of the 17-20s of the XX century can be characterized as a stage of intensification of state-building processes and national liberation movements. It is during these years in particular the state defence system underwent active transformations, and legislative acts regulating military relations and management of the military area appeared. Its driving force was the need to make quick decisions for the authorities to introduce organizational and legal forms of the defence system. All state formations on the territory of Ukraine (the Ukrainian People's Republic, the Ukrainian state, the Directory of the Ukrainian People's Republic, the Western Ukrainian People's Republic) were determined to create a defence system, relevant military authorities, their own army and adopted acts of military legislation in a short time. However, political mistakes and organizational and legal miscalculations in the development of the state defence system led to the loss of statehood[11]. At the same time, in parallel with the development of the defence system, this issue was gaining rapid momentum in the scientific field: there were active discussions on the branch structure of administrative law; in particular, there were signs of the emergence of military administrative law.

After the creation of the Soviet Union, the branch of military law was increasingly turning into a complex branch of the Soviet legal system, which was completely dependent on the highest political forces, including military-administrative law, military-criminal and military-judicial law. It transformed into military-legal norms regulating relations in the field of construction, housing, everyday life and activities in the field of organization of the military formations[12]. Military law, of course, is by its legal nature, a complex category that regulates relations both in the field of functioning of the Armed Forces, their structure, staffing, and in the field of ensuring military security[13]. However, it is talking about the management of military structures, based on the provisions developed by the science of administrative law: general principles of public administration, doctrine of legality and peculiarities of its ensuring. Theoretical provisions are mentioned regarding the significance of public administration and the essence of administrative and legal relations; the system and functions of executive authorities; the organization of civil service and status of civil servants; as well as the basics of administrative and disciplinary responsibility of citizens[14].

 

3. Military-administrative law as a guarantor of statehood security

 

The Soviet legal science formed the concept according to which the leading role in public relations in the field of defence and military security of the state was assigned to military-administrative law, although in general this branch was considered complex. Such scientific views are still held by many Ukrainian scientists, including[15], [16]. Thus, they support the concept of complexity, while distinguishing various sub-branches in the system of military law, in particular military-criminal law, military-administrative law, military security law, military-social law, each of which has its respective institutions. However, the question arises as to how these institutions are divided into relevant sub-sectors, in particular concerning such institutions as the management of armed formations, administrative responsibility of military servicemen, and internal service[17]. However, the norms of military administrative law regulate a much wider range of social relations and include other institutions accordingly. Another author gives the argument for this opinion. The public relations regarding the protection of the state, the rights and interests of its citizens from the threat of use of armed forces of other states by invasion is a manifestation of administrative and legal relations by nature, being regulated by the norms of administrative legislation, as they arise between citizens and public administrations[18].

There is also an opposite concept to the Soviet one, which defines a different branch of legal norms and legal relations in the field of defence of the state, and indicates their closest connection with the norms of administrative law, thus distinguishing military-administrative law as a sub-branch of Individual Administrative Law, but not military law[19]. To understand this view more clearly authors propose to consider the system of administrative law in detail. The field of administrative law has always been recognized as a complex system, which includes separate independent components in the form of institutions or sub-branches, but despite this, the discussion on the division of the administrative law system of Ukraine is still ongoing. It should be noted that administrative law has always been recognized as a way of legal control over public authorities in their interaction with other parties to legal relations[20]. Thus, for example, in the system of law of England and Wales, administrative law is actually a set of measures for controlling the activities of executive bodies in the conduct of state functions[21]. According to E. C. Page and W. A. Robson[22], administrative law is the legal framework where state management is carried out. There is no generally accepted definition of administrative law, but it is rational to assume that it covers the organization, powers, duties and functions of public authorities of all kinds involved in administration. It also pertains to their relations with each other, with citizens and non-governmental bodies; legal methods of controlling state management; and the rights and duties of officials.

Generally, it is customary to divide the modern system of administrative law into General, Individual and Special parts. In the first case, it is talking about more universal norms that can be implemented in all fields of governance and all areas of functioning of state authorities or local self-government. In addition, the discussion includes norms that establish general measures for ensuring law and order, legality, and administrative responsibility for offences. The Individual Part represents the norms that would establish the principles of legal regulation of legal relations in each separate field of administration, while the Special Part would establish the norms for regulating the activities of public administration entities in specific areas of public relations. Table 1 summarises the functions of each part of the modern system of administrative law.

 

Table 1. Parts of the Administrative Law System

 

 

Administrative Law System

General Part

Involves universal norms applicable in all fields of governance and functioning of state authorities or local self-governance. Also includes norms ensuring law and order, legality, and administrative responsibility for offences.

Individual Part

Contains norms establishing principles of legal regulation in each distinct field of administration.

Special Part

Includes norms for regulating activities of public administration entities in specific public relations areas.

 

However, despite the generally accepted system, modern proposals for the transformation of the national system of administrative law with an account of international experience are becoming more widespread. A rational concept is the separation of General and Individual Administrative Law, based on the opinion that the Individual Part is understood as a set of sub-branches united into a system by general rules of administrative law. The Individual Administrative Law[23] governs legal regulation of public relations that arise between public authorities and governments and citizens or other persons in order to satisfy their legitimate interests and exercise the rights and freedoms provided for by the Constitution. These are built in the process of transformation of the Individual Part of Ukrainian administrative law, built in accordance with the areas of activity of public administration, which are specified in the Constitution of Ukraine[24] and determined by the list of duties (functions) of public administration[25]. In this case, Individual Administrative Law becomes a polystructural legal entity that begins to regulate administrative and legal relations arising between the public administration and individuals in clearly defined areas, where the major ones are stipulated by the Constitution of Ukraine[26], which defines the field of state defence as a function.

Individual administrative law includes sub-branches, which are newly developing, because of constant transformation processes in society, ranging from the political to the defence area, which depend on the functions conducted by certain governing bodies. Today, due to the radical change in the global security system, the ongoing radical transformation of the world and economic order, the military conflict in the East of Ukraine and the annexation of Crimea, followed by Russia's full-scale invasion of Ukraine, new social relations are emerging and developing, and these are directly related to the defence function of the state. Moreover, since the field of state defence, protection of its sovereignty, territorial integrity and inviolability is assigned to public authorities under the Constitution of Ukraine[27], social relations that arise between individuals and authorities regarding the defence and security of the state should be regulated by the norms of Individual Administrative Law.

There is no absolute solution to the issue of differentiation of legal relations and their regulation by the relevant field of the law to this day. However, it is the norms of administrative law that are key basics for the regulation of relations in the field of principles and methods of state administration, guaranteeing law and order, ensuring the military security of the state, its defence capability and military management. In addition, military legal relations arise exclusively in the field of state public administration, in the field of administrative aspects of military activities of the state and its institutions[28]. This includes legal relations in connection with the management of the security and defence sector, and with the enlistment of citizens in the military service, in the field of all subjects of defence, and on the settlement of the legal status of military servicemen. This also includes the protection of their rights and freedoms, as well as legal relations arising in the case of committing military offences and bringing them to justice, and on the conduct of combat operations. All of them, by their legal nature, are nothing more than a type of social relations carried out in the field of public administration, and the peculiarity of their legal regulation is the dominance of administrative and legal aspects and administrative norms. That is why such legal relations should constitute a sub-branch of Individual Administrative Law and should be regulated by the norms of military administrative law. The legal regime of national security and defence notably falls within the scope of regulation of public relations. In particular, this pertains to such areas as the formation of the national security strategy, state support of the defence sector, intelligence activities of other states and organizations, mechanisms of control and counteraction to terrorist manifestations, protection of the state border and protection of territorial integrity[29]. It should be noted that this is not the whole range of legal regulation, but it directly indicates that it belongs to administrative law.

The formation of military-administrative law as a sub-branch of Individual Administrative Law and the departure from the ineffective Soviet concept of military law is a proper solution to the challenges and problems that Ukraine is facing today in view of the political, economic and military situation and connection with the Russian military aggression. When facing Russian terrorism, annexation of Crimea and occupation of the territory of Ukraine, the state authorities cannot exercise defence of the country, protection of its sovereignty, territorial integrity and independence without the existence of appropriate administrative and legal support for the defence of the state. This could be done by allocation of military-administrative law as a separate independent sub-branch of the Individual Part of Administrative Law. The same pertains to the de-occupation of territories and the protection of the rights and freedoms of citizens. The purpose of this action is administrative and legislative regulation of legal relations arising between citizens, other private persons and public authorities, as well as at the level of public authorities and other governing bodies in matters of security and defence, preservation of sovereignty, territorial integrity and independence of Ukraine. As rightly noted by I. Koropatnik[30], legal relations arising in connection with the functioning of the Armed Forces and other structural bodies in the security and defence sector clearly belong to completely different branches of law, ranging from constitutional ones to criminal ones. Thus, in his study, the researcher notes that relations in the field of military administration are complex administrative legal relations, subordinate in nature, arising exclusively in the field of state management of the Armed Forces of Ukraine. These are related to other state authorities or local governments of different levels and are administrative and legal in nature. The arguments to support this opinion firstly emerge in the field of public management; secondly, one of the subjects of such legal relations clearly has managerial powers and exercises its powers in order to pursue the interests of the state; and thirdly, such relations result from the will of each party.

Authors find interesting the opinion on the delimitation of civil-military and military-administrative relations. Thus, the main criteria for separation are the subject of legal regulation, which in the first case determines the relations regarding the organization of state authorities to ensure national security, territorial integrity and sovereignty, as well as the procedure for financing legal military formations. As for military-administrative relations, the subject of regulation is the actual implementation of state management. There is a difference with regard to the subjects of legal relations. Thus, supporting the scientist's opinion, there is a necessity in military-administrative relations endowed by the state with public powers, the priority for which is the method of subordination and disputing resolution administratively.

Administrative and legal regulation of defence and security of Ukraine is a special regulator of public relations in the field of national security indicating the need to take a set of measures aimed at forming a system of normative acts. These are united by the goals and objectives of effective regulation of national security, and the development of an appropriate system of national security with an unambiguous definition of the status of each entity included and taken into action[31]. The structure of administrative and legal support often includes such elements as legal regulation itself with the help of administrative and legal norms and their implementation, and guarantees of implementation established by the norms of administrative law. This opinion is shared by most scholars, highlighting legal regulation as one of the components of administrative and legal support and understanding this category as the regulation of public relations in the security sector through administrative and legal norms[32]. That is, legal regulation is one of the elements of administrative and legal support for the defence of the state and its protection, which consists in the regulation of social relations by public authorities, through legal norms and other means of administrative law, in particular the norms of military-administrative law, in the field of security and defence of the state. However, it should be noted that quite often both concepts deem equal. Thus, it is talking about the perception of legal regulation as the influence of state power on social relations. Nevertheless, upon rational evaluation of both concepts, their equivalence cannot be established. After all, administrative support of defence and security is the influence of the subjects of management by all methods and measures, not only their order[33].

The discussion on the structure of administrative and legal support navigates through social relations in the state's defence and security sector. This sphere comprises a confluence of political, legal, economic, social, military, scientific, scientific-technical, informational, and organizational measures instituted by the state to brace for armed defence against potential aggression.[34]. Thus, in their study A. Rusetskyi and S. Lelet[35] consider legal support as a set of organizational and legal measures to regulate, apply and implement legal norms in order to ensure the rule of law in the activities of state authorities, including those in the defence sector. Administrative and legal relations in themselves are relations of state power, which always arise in the field of public administration, and therefore, as indicated above, the subject of which is always either a state authority organ or another structural unit entrusted by the state with the implementation of state functions. That is, the subjects are directly citizens, foreigners, stateless persons, as well as the state itself, organizations and enterprises, institutions and authorities.

Administrative-legal support of the defence of the state plays a crucial role in ensuring the overall effectiveness of the protection system. This support encompasses the systematic activity of various entities involved in defence provision, guided by administrative-legal norms. Primarily, it involves the subjects of public administration, who are responsible for regulating, implementing, protecting, and safeguarding social relations within the realm of defence.

 

The significance of administrative-legal support in defending the state stems from its ability to guarantee the rights and legitimate interests of all parties involved in the legal framework. By establishing and upholding a robust legal system, it creates the necessary conditions to protect the state in the face of armed aggression. The administrative-legal support ensures the establishment of a comprehensive regulatory framework that governs defence-related activities. Administrative-legal norms provide the necessary guidelines for organizing and coordinating defence efforts, enabling a systematic and coordinated response to potential threats. This regulatory framework sets out the roles, responsibilities, and procedures for various entities involved in defence, facilitating smooth cooperation and efficient decision-making during critical times.34

Moreover, administrative-legal support ensures the implementation of defence measures in accordance with established laws and regulations. It helps to prevent arbitrary actions and promotes accountability and transparency in defence-related activities. By adhering to legal procedures, the state can effectively mobilize and allocate resources, including personnel, equipment, and financial assets, in a manner that is consistent with the law. Administrative-legal support plays a vital role in protecting the rights and interests of all parties involved in defence. It safeguards individual freedoms and human rights during times of conflict, ensuring that the state's defence efforts do not infringe upon the fundamental principles of justice and fairness. Legal protections also extend to the rights of individuals serving in the armed forces, guaranteeing their well-being and providing mechanisms for legal recourse if necessary.34

The effectiveness of the overall protection system heavily relies on legal support due to several reasons. Firstly, a well-defined legal framework ensures clarity and coherence in defence operations, enabling timely and appropriate responses to threats. This reduces the potential for confusion, avoids unnecessary delays, and allows for more efficient deployment of resources. Secondly, legal support fosters public trust and confidence in the defence apparatus. When individuals perceive that their rights and interests are safeguarded under the law, they are more likely to support and cooperate with defence initiatives. This public support is crucial for the effective implementation of defence measures, as it facilitates information sharing, recruitment efforts, and the overall resilience of the state in the face of aggression.

The norms of administrative law play an important role in the structure. Especially, nowadays, during active combat activities and state crises, the system of military-administrative legislation and its development in the system of military-administrative national doctrine in the field of ensuring the defence and security of the state is a crucial issue. The main problem is the lack of adequate and timely response from legislators to the processes taking place in the state and its armed forces, which leads to a significant backlog in legislation. The norms of administrative law generate, implement and protect relations in the field of defence, defence sector management and protection of national rights and interests. That is why this system requires a quick response, especially given the new military realities. The war with Russia, the Euro-Atlantic integration, the need to reform the defence and security system in connection with granting Ukraine the EU (European Union) candidate status, requires the creation of effective military-administrative legislation and has now a real impetus for radical changes and implementation of EU and NATO standards in the national legislative system[36].

The problem now lies in the too narrow and limited effect of these norms and the inability to regulate the entire sector of public relations in the field of defence. Military administrative law in itself covers a very wide range of legal relations and concerns the activities of all components of the security sector, including all governing bodies, their activities and all constituent institutions of the sector. Often, legislative acts, which are actually the norms of military-administrative law, belong to the field of military law, although it is actually about the regulation of legal relations between individuals and governing bodies, and therefore the scope of regulation clearly falls within the administrative law. Thus, an example is the Law of Ukraine “On Mobilization Training and Mobilization”[37], which regulates the scope of public administration of state defence precisely by the norms of administrative-military law. That is because they legally define the powers, rights and obligations of all subjects of administrative and legal support of defence by organizing and conducting mobilization training and mobilization for the needs of state defence and its protection from possible aggression. This also confirms that the public administration of state defence is regulated by the norms of administrative legislation, which constitute a separate group of administrative legal norms – military-administrative legislation.

Thus, military legal norms not only regulate the organization and building of military formations, existence and everyday life of the military but also their combat training. Such norms regulate public relations related to the management of the security and defence field, directly by all the defence forces that are part of it, as well as the activities of public management authorities and the implementation of security and defence state policy. It is followed by military command and control of the defence of the state in the event of an armed attack by another country; the rights and duties of military servicemen and other categories of citizens. The next is the activities of local self-government bodies and central executive bodies in the field of defence, the internal organization of activities of all subjects of defence provision. This opinion is confirmed by the Law of Ukraine “On National Security of Ukraine”[38], which regulates the issues of all subjects of the security and defence sector, including the Armed Forces, state and local authorities, military and law enforcement formations, as well as public associations that voluntarily participate in the defence of the state.

 

4. Regulation of military-administrative law in the context of the Russian-Ukrainian war: advantages and disadvantages

 

Special attention in this study should be drawn to the issue of the application of legislation on military administrative offences, because the commission of such offences encroach directly on the security sector of the state, namely on military security, and therefore constitute an increased public danger. It is clear that the relevance of this issue within the framework of the topic of military-administrative law is beyond any doubt, but it has become especially important in the context of the aggravation of the military-political situation against the background of the armed aggression of Russia both in 2014 and today with the beginning of a full-scale invasion.

The issue of the application of legislation on military offences, particularly in the field of governance, directly affects the combat capability of lawfully armed formations. In particular, it refers to the need to strengthen responsibility for administrative offences committed by military servicemen, reservists and persons liable for military service during drills and mobilization training. I. Ostapenko[39] pays considerable attention to this issue in his scientific research, calling for changes in the legislative field regarding the tendency of the increased number of military administrative offences. In particular, considerable attention is given to Article 172-15 of the Code of Ukraine on Administrative Offenses[40], which puts liability for negligent attitude to military service. The problem, according to I. Ostapenko[41], lies in the ambiguous law practice, the reason for which lies in the legislative gaps in this provision. That is, in accordance with the norm, non-performance or improper performance of duties by a military worker consists of deficiency, untimely or negligent performance of duties, dishonest attitude or poor quality results. However, in case of improper performance of such duties, a disciplinary penalty is imposed on the combatant in a mandatory manner, but if necessary. Accordingly, the question arises whether each disciplinary sanction entails administrative responsibility. An effective way to solve the problem is to improve this rule by specifying the corpus delicti, which will avoid duplication of signs for bringing to administrative responsibility, and at the same time to disciplinary punishment. Regarding this issue, for example, there is a clear distinction in the legislation of Australia between an administrative offence and professional misconduct[42].

One of the possible trends in the development of military administrative law, according to A. Rusetskyi and S. Lelet[43], should be the unification of national norms and principles of the military organization of the state (security and defence sector) in accordance with NATO norms and standards, and consolidation through administrative and legal regulation in particular. In addition, in his opinion, considerable attention should be paid to legislative regulation on the issue of interaction and management of special units, as they are the most valuable in operational and strategic actions. A real way to reform and improve this area is to regulate social relations in the security and defence sector through a clear distribution of rights and responsibilities of all its components, regarding their role in ensuring the defence of the state both in peacetime and in wartime. Reforming the field of security and defence, introducing an effective mechanism for protecting and counteracting violations in the field of national security and protection of sovereignty and territorial integrity, development of military-administrative law is virtually impossible without the creation of coherent and streamlined administrative-military legislation. As practice has shown, the inability to respond in time to possible threats and the lack of an effective preventive mechanism in the field of military-administrative law have led to the adoption of unsystematic chaotic legal acts since the beginning of the war in eastern Ukraine. Thus, the analysis of the current legislation in the field of state defence shows its fragmentary nature, inconsistency, and the presence of different groups of legal norms that relate to separate aspects of state defence, while incompletely regulating these social relations in the field of state defence. This especially resulted from chaotic, unsystematic amendments to the military legislation with the beginning of the Anti-Terrorist Operation and then the Joint Forces Operation[44].

Thus, there is an open question about the lack of proper regulation of public administration of the defence sector. It is talking, for example, about the lack of proper legal regulation of the function of parliamentary control in the field of defence. As it stands, there is no legislative regulation of this activity and no vesting of relevant officials or committees with these powers. For example, many European countries have introduced the position of Parliamentary Commissioner for the Security and Defence Sector as a solution to this problem. Given the Ukrainian experience and the current military-political situation of the state, authors consider it appropriate to suggest the legislative consolidation of such an institution and the adoption of relevant military-administrative norms for the regulation of public relations. This should be made in connection with the performance of the Commissioner's duties, as well as the creation of appropriate supervisory committees at Verkhovna Rada of Ukraine.

There is also a problem with the activities of the Cabinet of Ministers of Ukraine in the field of security and defence, namely, there is a large gap in the current legislation regarding its functioning during martial law, as evidenced by the first days of military aggression of Russia against Ukraine. The function of the Cabinet of Ministers of Ukraine is to determine the amount of funds for the needs of the Armed Forces of Ukraine and other military formations, as well as such aspects as determining the number of citizens subject to military conscription, the procedure for military service, training of citizens of military age. This also pertains to the actual regulation of the process of formation and maintenance of the mobilization regime, the procedure for financing mobilization training. The implementation of the defence reform requires further legislative regulation of the issues of determining and delimiting the powers of the Cabinet of Ministers of Ukraine and other state authorities to implement measures of the legal regime of martial law, coordination and control over executive authorities under martial law, as well as the state defence order[45]. In particular, this applies to such aspects as ensuring the needs of defence and mobilization readiness, organization of conscription for military service, and conducting drills at military training camps. Another important aspect is the issue of separation of functions of the Ministry of Defence of Ukraine and the Commander-in-Chief of the Armed Forces of Ukraine.

The first days of the Russian military aggression showed a huge gap in the military-administrative legislation of Ukraine regarding the regulation of civil society as a subject of the defence sector. Thus, the creation of the Territorial Defence units and their transformation into the units of the Armed Forces of Ukraine has become an effective mechanism in the fight against the Russian occupation forces. However, there should also be proper legal regulation of such a phenomenon as the right to self-defence in case of armed attacks, and therefore effective legislative consolidation of the legal status of members of such units. However, it is talking about proper and balanced law-making, not chaotic solutions to problems in connection with the challenges posed by the military-political situation. To find a solution to this problem, the authors suggest an interesting scientific study by B. Maziarz[46] on the regulation of the activities of the Territorial Defence Forces of Poland, in particular in the field of counter-terrorism. The problem is that regulation of the powers of the Territorial Defence Forces was completely absent in national legislation, and therefore, the changes were again made urgently. The full-scale invasion of Russia into the territory of Ukraine challenged lawmakers to adopt new Draft Law “On Amendments to the Law of Ukraine "On the Basics of National Resistance" on enabling territorial defence to carry out tasks in the areas of military (combat) operations”[47].

However, before that, the Territorial Defence Forces could exercise their powers only on the territory of the community to which they belonged territorially. Instead, the legal tasks of territorial defence forces include conducting combat operations in cooperation with operational forces in the event of a military conflict[48]. An example can be found in the legislation of Romania, the impetus for which was caused by the “hybrid war” provoked by Russia in Ukraine. Considering the actual military-political situation, the proximity of the countries and the problems that may arise in case of “unpreparedness” for the realities of life, in 2016 legal experts started intense discussions both at the scientific and legislative levels on the inclusion of the Territorial Defence Forces in the national defence system[49].

According to H. Mendeshausen[50], territorial defence forces is a system that relies mainly on latent internal forces, and its doctrine is related to a military function or type of forces that play a greater or lesser role in the overall military structure of the country. In general, the Territorial Defence Forces of Ukraine were also created as a response to hybrid warfare, to prevent the capture of other Ukrainian cities as it happened with Donetsk or Luhansk. However, the issue of legal regulation of this sector was quite flexible, which did not allow a qualitative approach to the defence situation in the early days of the war. For example, it is talking about the formation of checkpoints, the protection of which is actually included in the functions of territorial defence. As noted by M. Butchenko[51], initially the network of checkpoints was random, especially in the areas affected by combat hostilities. This was a real drawback, not least because it complicated the logistics and delivery of humanitarian aid. However, with several checkpoints corrected, a unified system of crossing points in different regions would be advisable. However, the problem was the lack of proper legal regulation of this issue in the scope of military-administrative law. Moreover, although this issue has already been adjusted in the national system of legislation, it can be talked again about the lack of timely administrative and legal regulation and response to the challenges that Ukraine faced even before the outbreak of the Russian-Ukrainian war in 2022.

Another issue in this area is the regulation of relations between the Armed Forces and civil society subjects such as volunteer and charitable organizations. It is talking about a clear and legally regulated definition by administrative and legal norms of the regulations for the establishment of such organizations in the field of interests of the Armed Forces of Ukraine. The issue concerns the regulation of the registration of a public association, namely the mandatory granting of the status of a legal entity, as it is actually specified in the Law of Ukraine “On Volunteering”[52]. The uncertainty of the legal status, and incorrect registration of such associations regarding the need to grant the status of a legal entity or without it, for a long time, since the beginning of the war in 2014, did not contribute to the development of volunteer activities in Ukraine. A similar opinion is shared in the study of I. Koropatnik[53], notes that currently the regulation of legal relations is clearly defined only in relation to the Armed Forces of Ukraine and religious organizations, as well as the media. There are also many questions regarding the effectiveness of legal regulation of the Armed Forces of Ukraine. Thus, the lack of coherence in the performance of functions, and distribution of tasks between the Armed Forces, and other military formations (in particular volunteer battalions, law enforcement agencies and intelligence agencies) leads to the nullifying of quality results in the conduct of the latter in the defence and protection of the state both in peacetime and wartime.

Another problem, the catalyst for which was the full-scale war of Russia against Ukraine, is the administrative and legal regulation of the competencies of military administrations. Such institutions are one of the most effective tools for ensuring public administration, especially in the field of defence and security throughout the territory of Ukraine during martial law. Starting from 05:30 on February 24, 2022, a special legal regime was introduced in Ukraine, the martial law regime, which empowers the relevant state authorities to repel armed aggression, and eliminate the threat to national security and independence of Ukraine. Actually, this regime stipulated the introduction of special administrative functions, which led to the creation of military administrations under the Decree of the President of Ukraine “On the formation of military administrations”[54]. In accordance with the current Law of Ukraine “On the Legal Regime of Martial Law”[55], military administrations are temporary state bodies established for the duration of martial law. At the same time, the powers of regional state administrations and district state administrations were terminated for the period of introduction of regional and district military administrations. The procedure for the appointment of military administrations in settlements is somewhat different. It means that such administrations can be appointed only in cases where village, town, city councils or executive committees do not exercise their powers or have terminated them.

However, despite the detailed regulation of the exercise of functions and powers, there is a conflict on the issue of exercising additional powers in case of non-convocation of sessions of the relevant or regional councils. As noted by E. Grechkivskyi[56], such a conflict can lead to a situation of dual power, when, despite missing the deadline established by law for convening the session, the relevant district and regional councils will still meet and exercise the powers established by law, but the created district and regional military administrations will still begin to exercise additional powers. Otherwise, this may lead to disruption of the normal functioning of the public administration system at the regional and district levels due to the lack of an authority that will implement critical functions for the population and economy of the respective territories. This would happen because the heads of district and regional military administrations will not use such additional powers until the competent higher authority issues a relevant administrative act on fixing the fact of non-convocation of the session of the district, and regional council and granting the military administrations of such powers.

According to the lawyer, the solution to such a gap in the current legislation may be the implementation of the relevant powers by the already established military administrations. However, it should be noted that the current legislation regulating the activities of military administrations should be supplemented concerning the process of transferring relevant powers to the functions of the latter to avoid situations of dual power and the principle of transparency and certainty. Thus, nowadays, in the conditions of martial law and Russian military aggression, there is a real opportunity to carry out an effective reform of the state defence system, create new institutions and introduce new legislative acts in this field. In the future, this will help to transform the area of military-administrative law and bring it to a new level, changing the entire legal space of public administration of the defence field of Ukraine.

In recent times, NATO has prioritized the application of gender equality principles. The aim of integrating both genders within NATO's policies is to ensure equality in the armed forces of NATO allies and partner nations. This involves the proactive participation of both women and men in all levels of task execution, considering the needs and experiences of both genders. Given Russia's conflict with Ukraine and Ukraine's bid to join the European Union and NATO, the necessity for gender-based reforms in the fields of security and defence becomes clear. Between 2014 and 2023, there has been a profound shift in Ukrainian societal and political understanding. Military personnel have demonstrated a heightened sense of responsibility and self-awareness, and there has been a significant surge in the number of women willing and capable of safeguarding national interests through armed service. Women in military roles are now recognized as professional combatants striving for their rightful positions in the military[57].

 

5. Conclusions

 

The value of security has always been a priority for Ukraine throughout the history of its statehood. However, with the beginning of the Russian military aggression against Ukraine, it became clear that the system of ensuring defence as the main component of the national security of Ukraine is far from perfect, and therefore needs to be changed and transformed. This situation is simultaneously caused by several factors, including the lack of awareness of the importance of an effective defence system, the lack of legislative regulation in the field of public administration in the security and defence sector, and the predominance of other state functions and development directions over the defence and security sector. All these reasons were the result of poor-quality formation of the defence strategy not only in the scientific direction but also in the formation of an integral system of legal support for defence.

The development of administrative and legal support, the formation of military-administrative legislation and the development of military-administrative law remain one of the most urgent issues in the field of public administration of the defence and security sector. A systematic approach to administrative and legal support of state defence, in the aspect of legal science, the importance of law and rule making for the field of state defence remains an urgent issue. In addition, a separate direction of research should be a discussion on the allocation of military-administrative law into a separate sub-sector with its own functions and tasks, and, respectively, the study of ways to reform the state defence system by this area of legal regulation. Objective social processes and the need for the legal regulation of new social relations in the field of defence arising in connection with Russian military aggression will condition further development and formation of military-administrative law as a sub-branch of Individual Administrative Law.

 

 

Abstract: In today's world, given the rapid development of global transformation processes, economic, political and legal systems, ensuring the full functioning of any state without proper provision of defence and security sector is virtually impossible. However, despite the transformation of the matter of national security and defence from the height of scientific discussions down to practical actions within the framework of the state security policy, the issue of effective legal regulation of the country's defence remains open. The current military-political situation around Ukraine, caused by the full-scale invasion of the Russian aggressor on the territory of Ukraine, which increasingly reveals theoretical and practical issues in the field of military-administrative law of Ukraine and proves the lack of proper attention to the legal aspects of defence, also increases the urgency of the problem. The purpose of this article is to analyse the system of military-administrative law, trends in its development in order to improve the current system of state defence in the context of Russian military aggression. To achieve this goal, authors used a system of scientific methods, including, in particular: dialectical method, method of synthesis and analysis, method of deduction, historical method, historical-legal, formal-legal method and system-structural method. During the work, authors analysed theoretical issues of the development of military-administrative law, the existing military-administrative legislation and found a number of problems that currently exist, in particular the lack of proper legal regulation of the activities of the Territorial Defence Forces and military administrations and the interaction of volunteer organizations and the Armed Forces. Authors also covered functioning of the Cabinet of Ministers during an armed attack, the issue of parliamentary control over the activities of the security and defence sector, where authors provided possible solutions. The results of the study have priority for the formation and development of military-administrative law as a separate sub-branch of Special Administrative Law and the reform of the security and defence sector in the context of administrative and legal support of the state defence.

Keyword: state defence - administrative-legal support of defence - military-administrative law - security and defence sector - Russian military aggression

 


aTaras Shevchenko National University of Kyiv (p.diktiiyevskyi@meta.ua).

bTaras Shevchenko National University of Kyiv (vo.pashinskyi@ukr.net).

cTaras Shevchenko National University of Kyiv (nat32.zadyraka@yahoo.com).

dTaras Shevchenko National University of Kyiv (chupryna1li76@outlook.com).

eNational Defence University of Ukraine named after Ivan Cherniakhovskyi

(kryvenko.ol066@ukr.net).

* Il contributo è stato sottoposto a double blind peer review.

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[54]https://zakon.rada.gov.ua/laws/show/68/2022#Text 29.03.2022.

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