CC BY
34JURISPRUDENCE / <<€®LL®qUQUM~J®U©MaL>>#U6q©),2©1]9
UDC: 339.5:341.241.8 ^ C
Nadiia Artiukhova PhD in Law, doctoral student, National Academy of the Security Service of Ukraine
Kyiv, Ukraine DOI: 10.24411/2520-6990-2019-10522 FOREIGN LEGAL FRAMEWORK FOR PROTECTING NATIONAL INTERESTS IN THE SPHERE OF TRADE AND ECONOMIC COOPERATION: US, FRG AND PRC EXPERIENCE
In the paper as exemplified by the top three foreign trading countries (according to the World Trade Statistical Review-2018), namely the USA, Germany and China, the best foreign experience in protecting national interests in the sphere of trade and economic cooperation is considered. The contents and structure of the corresponding legal acts are analyzed. Certain provisions which can be borrowed in order to develop proposals for improving the current legislation of Ukraine in the mentioned sphere are defined. The ways of implementing the best foreign practices at micro- and macro-level are suggested.
Key words: trade and economic cooperation, foreign experience, best practices, national interests, normative and legal acts.
The effective development of international trade and economic cooperation within separate region as well as at the national level is possible only by means of introducing efficient state support mechanisms for this sphere of the economy. Taking into account powerful competitor countries that are present on the world market, it becomes extremely urgent to look for new ways to improve the protection of Ukraine's national interests in the sphere of trade and economic co-operation by the state institutions responsible for carrying out regulatory and supervisory policies in this area. Therefore, the above-mentioned determines the relevance of studying the best foreign practices in terms of the organization and implementation of the activities dealing with the protection of national interests in the sphere of trade and economic cooperation in the economically developed countries.
Urgent issues of ensuring the security of various sectors of the economy by state authorities and law enforcement bodies were analyzed by the following Ukrainian scholars: Z. Varnaliy, R. Datskiv, E. Dmytrenko, E. Zhalilo, L. Kozak, I. Migus, V. Nyzhnyk, G. Tarasiuk and others. At the same time, the issue of global experience in protecting national interests in the sphere of trade and economic cooperation has not been studied thoroughly enough, and therefore needs further investigation. Thus, the purpose of the article is to analyze foreign experience in the aforementioned sphere and to substantiate the urgency of using some of its provisions to develop different ways of improving relevant domestic practices.
According to the annual World Trade Statistical review - 2018 [1], the top-3 leading countries in the international trade are the People's Republic of China, the United States of America and German Federal Republic. The largest exporters of commercial services were the United States, United Kingdom of Great Britain and Northern Ireland and German Federal Republic, while the top three importers became the United States, the PRC and Germany. Thus, of particular interest, in our opinion, is the legal and regulatory framework for the protection of national interests in the sphere of trade
and economic cooperation in each of these countries. Let us consider them in more detail.
The United States National Security Strategy ("Trump Strategy") [2], which main focus is made on the economic security as an important component of national security, is the fundamental US law in the above mentioned sphere. In the context of trade and economic cooperation, the following priority objectives are defined by the Strategy: "... Adopt new trade and investment agreements and modernize existing ones; counter unfair trade practices; counter foreign corruption; work with like-minded partners; facilitate new market opportunities" [2]. Moreover, among the US priorities in the area of trade and economic cooperation, there is a number of global projects such as: Transatlantic Trade and Investment Partnership as well as Trade in Services Agreement between 23 countries of the world, including the United States and the EU. At the same time, according to some experts [3], the above mentioned projects are aimed at increasing the economic impact of the United States on other national economies and are a real encroachment on global democracy.
In this Strategy the external opponent is clearly defined (for the USA it is the Russian Federation and China). In addition, the Strategy stipulates that the United States will seek a zone of cooperation with its opponents, but will do it solely from a position of strength. In this context, we can assume that US policy in the sphere of trade and economic cooperation is rather assertive, and is aimed at taking active measures to counteract the enemy, instead of looking for different ways to respond to already existing threats and challenges.
The legal framework for the protection of US national interests in the sphere of trade and economic cooperation is also defined in Omnibus Foreign Trade and Competitiveness Act of 1988 [4], Trade Act of 1974 [5] and others. These legal acts regulate the organization and procedures of US trade and economic cooperation with foreign partners, as well as provide for a system of
«C@yL@qyiym-J®yrMaL»#16I4©),2@19 / JURISPRUDENCE
measures to protect a national commodity producer in order to eliminate unfair competitive advantages.
In this context, we should also analyze the updated National Intelligence Strategy of the United States of America (2019) [6]. Thus, the particular attention in this legislative act is paid to ensuring national security in the economic sphere. In particular, it is emphasized that the threats to the US national security in various fields, including the economic sphere and international trade and economic relations respectively, are nowadays created by the opponents using both traditional and non-traditional, asymmetric and hybrid methods.
It also should be noted that in the United States there is The Economic Crimes Investigation and Analysis (ECIA) program, which assumes the interaction between law enforcement bodies and state and private structures, security and detective agencies, etc. Therefore, the fight against economic crime, including abusive practices in the sphere of international trade and economic cooperation, and counteracting threats to national security is performed at the level of private organizations, business associations, where internal security structures with security officers are created and close interaction with state security bodies is organized. Such a collective security system allows for the regular exchange of information on urgent issues and operates in the United States since the beginning of the 1990's as a part of an agreement between the US State Department and more than 500 American companies.
Such interaction can be beneficial both for the national security services and for the private companies. Thus, the state saves and increases its resources, "hides" its interests among the interests of private structures. Corporations, in their turn, solve state tasks, set by security services, using their capabilities and taking into account their own interests.
At the same time, followers of the traditional methods of the special services insist that they (special services) should first of all protect the state interests, rather than private ones [7; 8].
We believe that in the modern global world, the issue of developing public-private partnership, especially in the sphere of international trade and economic cooperation, is urgent and promising. The disadvantages of such a partnership can be eliminated by means of proper democratic control.
Therefore, we can state that the US national security support in the sphere of trade and economic cooperation is characterized by the implementation of state protectionist policy in the form of economic patronage, active cooperation with private structures and economic confrontation with the defined opponents.
Germany also follows similar protectionism principle for the national commodity producers on foreign markets and for its national interests in a competitive confrontation with certain opponents (the USA, Japan and China).
"A powerful economy is not granted by God", - is stated in the National Industrial Strategy 2030, adopted in 2019 [9]. In the context of protecting national interests of Germany in the sphere of trade and economic cooperation, the Strategy declares the principles of a free market and the removal of tariff barriers (customs
duties, taxes, etc.) for the international transfer of goods and services. At the same time, this legal act is focused on increasing "competitive pressure" in terms of trade in goods and services, where Germany has used to hold the global leading positions. According to the authors of the Strategy, this is due to the fact that competitor nations quickly catch up with Germany by means of using integrated approaches to the development of innovative technologies, creation of joint ventures, and attraction of foreign capital. Thus, as stated in the Strategy, the equal partnership for the development of industry involves the application of new trade protection instruments and preliminary screening of foreign direct investments, which is the key to fair competition on the global market.
In the National Sustainable Development Strategy 2018 [10], despite its declarative character, as stated by the authors, the goals of Germany dealing with its sustainable development until 2030 as well as objectives that are set up and steps necessary to achieve these goals, are clearly defined. Moreover, the Strategy provides foundations for promoting interaction between governmental structures in terms of sustainable development policy in the key areas of public relations in Germany and also for increasing public-private partnership with the representatives of civil society, business, science, etc.
With regard to Germany's trade and economic cooperation, the Strategy is focused on "the need to reduce inequalities between countries" by providing WTO-EU trade preferences to developing countries by means of granting free access to markets, providing subsidies and other beneficial, non-discriminatory and transparent trade policy tools". According to the authors of the Strategy, this can be achieved with the participation of the Federal Government via timely expert assessments and regular monitoring.
Thus, in Germany, within the competence of the Ministry of Internal Affairs is the improvement of legislation dealing with prevention of secret information leakage within state-owned enterprises, as well as commercial or industrial secrets of private entities. Private structures, in their turn, actively interact with state security agencies (police, counterintelligence, etc.) by exchanging information, and sometimes even take part in joint measures to ensure economic security, and specifically in the sphere of trade and economic cooperation [11, p. 102].
In our opinion the above mentioned proves a rather significant role of state bodies, including those belonging to the German security sector, in supporting its trade and economic cooperation and competitive relations on the global arena.
Being among the world's leading export and import countries, the People's Republic of China has launched a strategy aimed at ensuring its unquestionable global trade leadership by 2035 by means of improving the quality of goods and services, as well as increasing bilateral investments [12]. It should be noted that starting from 2013, the economic aspects of China's national security are considered together with the political and military issues. Thus, in the Chinas White Paper on Asia Pacific Security Cooperation, issued on
JURISPRUDENCE / <<€®LL®qUQUM~J®U©MaL>>#16(iq©)),2(
January 11, 2017 [13], special attention is paid to the issues of internal economic security and cooperation, as well as to the protection of national economic and trade interests overseas. In this document, in a similar way as in the above mentioned national security/development strategies of other foreign countries the potential opponent of the PRC, is mentioned (however its name is not given). This opponent together with the East Asia countries (due to territorial disputes) and the threats of international terrorism, extremism and separatism, is regarded as a challenge to the national security of the People's Republic of China.
In order to protect its target markets, to ensure the competitive advantages and leading positions of the national commodity producer on the world market and the unimpeded supply of raw materials and energy to the country, a number of ambitious projects have been introduced by the government of the PRC, including "Made in China 2025", "New Silk Road" and others. Such state policy has contributed to the fact that the entire industry in China can become a technological monopoly for the leading global companies that have moved their production capacities here. And this, according to the most experts, will make international competition in the sphere of trade in goods and services impossible and therefore can be considered a threat to global trade.
Tough and clear response to the US introduction of tariffs for Chinese goods was the White Paper "The Facts and China's Position on China-US Trade Friction" [14], issued by the Government of the People's Republic of China on September 24, 2018, condemning the trade protectionism and trade hegemony of the USA. At the same time, with the promulgation of the document, the China's government has introduced similar increased tariffs for the US goods.
The above mentioned is a good example of an adequate and timely reaction of the state to discriminatory measures against its national commodity producer and protection of its interests on the international market.
Conclusions. Concluding what has been said above, it should be noted that in the considered foreign countries, a special attention in the context of protecting national interests in the sphere of trade and economic cooperation, is given not only to the declaration of threats and determination of priority tasks in this direction, but also to the creation of favorable conditions for the development of business structures, attraction of foreign investments, promoting security within the industrial and commercial companies, and encouraging their close cooperation with law enforcement agencies. Moreover, all of the above mentioned countries are characterized by direct and active protectionist state policy in the field of economic security, as well as in the sphere of national interests' protection in the process of trade and economic cooperation.
Therefore, we come to the conclusion that the key to the efficient performance of the leading foreign countries on the global market of goods and services is the creation of such a mechanism for managing the country's economic security, which, in addition to the strong state support from public administration and law enforcement bodies, also assumes the involvement of
other stakeholders, namely representatives of business structures, corporations, individuals, etc.
In this context, in terms of ensuring national security of Ukraine in the sphere of its trade and economic cooperation, it seems appropriate to use some of the practices that have already proved their effectiveness in the leading countries of the world. Among them, at the macro level:
- shifting the emphasis from the defensive nature of the entire domestic economic security system to the assertive (achieving the set goals by taking proactive actions, instead of trying to protect from the enemy by taking active measures only in case of unfavorable factors);
- development of a system of preventive measures in order to create the preconditions for further planning, elaboration of the necessary forms and methods for the realization of national interests in various spheres of the economy and determination of those who will be responsible for their implementation.
At the micro level:
- consolidation of national economic interests, in particular in the sphere of trade and economic cooperation, at the legislative level;
- development and implementation of the Economic Security Strategy of Ukraine with a separate section devoted to security and priorities of its trade and economic cooperation;
- creating favorable conditions for the development of public-private partnership in the mentioned sphere;
- ensuring the competitive advantages of domestic producers of goods and services on the domestic market;
- creating favorable environment for the effective entrance of the Ukrainian enterprises into the global trade markets.
The prospects for further research consist in identifying specific ways to improve domestic legislation in terms of protecting Ukraine's national interests in the sphere of trade and economic cooperation, taking into account the best foreign practices.
References
1. World Trade Statistical Review 2018. URL : https://www.wto.org/english/res_e/sta-tis_e/wts2018_e/wts2018_e.pdf.
2. National Security Strategy of the United States of America, December 2017. URL : https://www.whitehouse.gov/wp-content/uploads/2017/12/NSS-Final-12-18-2017-0905.pdf
3. 'This transatlantic trade deal is a full-frontal assault on democracy', George Monbiot, The Guardian, 4 November 2013. URL : https://www.theguardian.com/commentisfree/2013/no v/04/us-trade-deal-full-frontal-assault-on-democracy.
4. Omnibus Foreign Trade and Competitiveness Act of 1988. URL : https://www.jstor.org/stable/pdf/20693287.pdf?seq=1 #page_scan_tab_contents.
5. Trade Act of 1974. URL : https://legcoun-sel.house.gov/Comps/93 -618.pdf.
«C@yL@qyiym-J®yrMaL»#16î4©),2@19 / JURISPRUDENCE
6. The National Intelligence Strategy of the United States of America, 2019. URL : https://www.dni.gov/files/ODNI/docume nts/National_Intelligence_Strategy_2019 .pdf.
7. Perry D. 'Business Intelligence and National Intelligence: Should the CIA Spy for American Companies?' Los Angeles Times, November 30, 2005. URL : http://articles.latimes.com/2005/nov/30/busi-ness-intelligence-and-national-intelligence.
8. Rubin M. 'Privatize the CIA: Our Intelligence Community Could Use More Competition', Weekly Standard, January 29, 2007. URL : http://www.michaelrubin.org/1029/privatize-the-cia.
9. Nationale Industriestrategie 2030. URL : https://www.bmwi.de/Redak-tion/DE/Publikationen/Industrie/nationale-industriestrategie-2030.html.
10. Deutsche Nachhaltigkeitsstrate-gie. URL : https://www.bundesregierung.de/resource/ blob/998220/455740/7d1716e5d5576bec62c9d16ca90
8e80e/2017-06-20-langfassung-n-en-data.pdf?down-load=1.
11. Osmanov Z.D., Moiseev P.S. Features of ensuring economic security in foreign countries. Sotcialno-economicheskie procesy (Socio-economic processes). 2015. Vol.10, №11. P. 99-104.
12. China plans to become the top world trader (Source - UKRINFORM). URL : https://news.finance.ua/ru/news/-/417631/kitaj-zaplaniroval-stat-liderom-mirovoj-torgovli.
13. The White Paper "CHINA'S POLICIES ON ASIA-PACIFIC
SECURITY COOPERATION". URL : https://www.is eas.edu.sg/im-
ages/pdf/I SEAS_Perspective_2017_22 .pdf.
14. The White Paper "The Facts and China's Position on China-US Trade Friction", 24.09.2018. URL : http://download.china.cn/en/ doc/WhitePaperChinaUStradefriction. doc.
