Since the Verkhovna Rada is only starting its plenary work, we will review the decisions made by the President. He continues to use the National Security and Defense Council as a tool to expand his powers and thus disturbs the balance of power defined by the Constitution. This time he issued decrees on the neutralization of threats to the energy security of Ukraine and the strategy of foreign policy.
Neutralization of threats in the energy sector (presidential decree #452/2021)
Who is affected: Ukrainian citizens, the Cabinet, the National Commission for State Regulation of Energy and Public Utilities, the Agency for Investigation and Management of Assets, State Property Fund of Ukraine, the Anti-Monopoly Committee, NJSC Naftogaz, PJSC Donetskoblgaz, and energy industry.
Summary of the decree: the decree enacts the decision by the National Security and Defense Council On the Measures to Neutralize Threats in the Energy Sector. The decision gives the following orders concerning the energy sector to the Cabinet and central executive bodies:
- to address the issue of the management of PJSC Donetskoblgaz to guarantee that natural gas is supplied to local inhabitants
- to analyze the approach to the evaluation of the natural monopolies’ assets and update tariff rates on transportation of natural gas and electricity
- to develop a mechanism to enforce provisional administrations on energy enterprises if their work threatens the security of electricity supply
- to find real beneficiaries of energy industry enterprises
- to prepare and submit to the Verkhovna Rada draft bills to stimulate green energy production
- to grant more powers to the Ministry of Energy to ensure the security of natural gas and electricity supply, the continuous work of electric grid, gas pipeline network, and gas distribution system
- to estimate the environmental impact of energy blocks #3 and #4 of the Khmelnytsky nuclear power plant construction.
What is wrong:
- the decree is unconstitutional: the President has no authority to address the issues in question and is trying to do the job that is an exclusive domain of the Cabinet
- the NSDC’s decision defines the state policy on the energy sector that is supposed to be developed and implemented by the Cabinet and the Ministry of Energy and not by the advisory presidential body
- the decree is regulating the management of the critical infrastructure. For now, the issues of critical infrastructure are not regulated by the law and thus cannot be regulated by bylaws as is proposed by the NSDC’s decision
- parts concerning the National Commission for State Regulation of Energy and Public Utilities and the Anti-Monopoly Committee compromise the guarantees that these bodies are independent
- the part of the decree concerning the NJSC Naftogaz and other business entities is unconstitutional since the state has no right to interfere with their work.
- the development and implementation of the state policy on energy is the responsibility of the Cabinet and the Ministry of Energy. The President has no authority to interfere and the Verkhovna Rada is obliged to supervise and control the executive branch
- the Cabinet has to develop a draft bill on how the critical infrastructure should be managed. It should cover:
- the monitoring of the work of energy industry business entities
- risk management and projections
- control over the stat of the object of critical infrastructure
- preventive measures to counter threats to the work of the objects in question and mitigation of their expected consequences, the enforcement of provisional administrations on businesses should be an extraordinary measure for exceptional cases.
The approach will minimize the risks of violations and abuse in the work of critical infrastructure objects, create proper legal grounds for the state to interfere with the work of business entities, and at the same time prevent the state from pressuring business.
The Strategy of Foreign Policy of Ukraine (presidential decree #448/2021)
Who is affected: government bodies, Ukrainian citizens.
Summary of the decree: addresses all major issues in the foreign policy of Ukraine.
- defines the aim of the Ukrainian foreign policy: to establish the position of Ukraine as a powerful European state, create positive environment for its development and the realization of the potential of its society and economy. The following objectives are set to achieve the aim:
- to become a member state of NATO and the EU
- to protect the independence of the state
- to defend against the armed aggression of the Russian Federation and liberate the territories of Ukraine occupied by the aggressor state
- to promote Ukrainian export and raise investments
- to protect Ukrainian citizens’ interests abroad
- defines challenges and threats to the state from foreign policy’s perspective:
- the armed aggression of the Russian Federation, in particular, the concentration of Russian troops near the Ukrainian border
- the slowdown of the process of the enlargement of the EU and cautious attitude of the EU in strengthening its role in the Central-European and the Black Sea regions
- the global confrontation between the United States and China
- intensification of the fight for access to natural resources
- crisis of the international order, escalation of armed conflicts, growth of extremist movements, terrorism, cybercrime, disinformation, and a threat of new pandemics
- defines goals of the foreign policy of Ukraine:
- to restore its territorial integrity and peace
- to bring the Russian Federation to justice for the armed aggression
- to become a member state of NATO and the EU
- to promote external trade and raise investments
- to transform the state in technological and environmental aspects
- to ensure more freedom of movement worldwide for Ukrainian citizens and promote interests of Ukrainian citizens abroad
- acknowledges the impossibility to normalize relations with the Russian Federation without the deoccupation of Ukrainian territories and the end of armed aggression
- emphasizes the importance of staying in touch with the Ukrainian diaspora and migrant workers.
What is right:
- the Strategy of Foreign Policy is a document defining a long-term plan that allows to synchronize the work of government bodies and officials, promote the interests of Ukraine abroad
- the Strategy provides a clear description of the situation in foreign affairs, lists the threats and trends the state is facing today, sets objectives of the state policy, and defines detailed priorities in the relations with states and groups of states by region. The document is a rare example of a high-quality long-term plan for a state policy in Ukraine.
What is wrong:
the Strategy was approved by the decision of the National Security and Defense Council enacted by the presidential decree. The Constitution does not grant the President the authority to make such decisions.
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