In the article the author analyzes the features and methodological foundations of the study of legal aspects of international energy security policy on the example of the European Union.
Keywords: international energy security, methodological foundations, European Union.
The study of any area of the law of the European Union (hereinafter referred to as the «EU») implies methodological and ideological pluralism, which is explained by the lack of generally accepted theoretical approaches to the process of European integration today. One of the well-known foreign researchers in this area, D. McCormick, noted on this occasion that «numerous theories have been proposed and refined, but despite the fact that they offer a lot of useful information for understanding the European integration, one common theory which would receive general support has not yet been proposed» [1, p. 11]. We should agree with the position of Y. M. Oborotov that the methodology of scientific research includes both a conceptual level, which is characterized by conceptual ideas, concepts, conceptions, conceptual approaches and methodological principles, and an instrumental level, covering a variety of methods: philosophical, general theoretical, particular scientific, special. This approach allows not only «to see the stable connections between the philosophy of law and jurisprudence», but also to deal with the sphere of knowledge related to the jurisprudence. It is precisely such an interdisciplinary approach that studies devoted to EU law require, since its subject of regulation is the complex system of social life of this integration association, which originated primarily from the core of economic and technical issues that require appropriate legal support. The main conceptual idea of this study, which does not have a legal nature, but needs a legal dimension, is the concept of EU energy security, which is now embodied in the relevant EU energy security policy, which, in its turn, forms a certain part of the EU energy law norms and is the result of their actions, because «in real life, social regulation acts as an integrity in which different types of regulation interact and complement each other» [2, p. 36].
Based on a wide range of scientific research related to the EU law and presented by the works of foreign and domestic experts, it is possible to identify a range of issues that require further study. These, in particular, include the problems of legal regulation of the processes of creating the principles of energy security of both separate states and their associations.
The study of specific forms and methods of creating the necessary legal framework for achieving energy security is based on a modern methodological framework that helps to offer an effective model for the implementation of such a task and foresee possible achievements and risks along the way. This is especially important given the current trends in the use of synthetic approaches in the study of EU legislation. Thus, according to Neil Walker, there is a trend towards «a reactive, event-driven and context-dependent approach of European legal studios» [3, р. 601].
Describing the methodological foundations for the study of the legal problems of ensuring energy security, first of all, it should be noted the need for a systematic approach to the analysis of the legal framework of the EU energy security policy, which allows not only to reflect the multidimensionality and diversity of the topic, but also to comprehensively recreate the interdependence of global and local problems, which objectively leads scientific research and development of specific, concrete forms and methods of legal policy in the field of energy security.
It is the integrated systemic approach that explains the need for legal self-limitations in the face of resource constraints, as well as the importance of introducing certain parameters of global governance in order to avoid conflicts and achieve real energy security.
An important factor is that a number of basic concepts of European integration are formed precisely around the security factor, covering various areas of activity of the modern EU.
In particular, supporters of the federalism theory, popular at the time of the emergence of the European integration process, pointed out that nation-states have lost their rights, since they cannot guarantee political and economic security to their citizens [4, p. 68]. Consequently, it is precisely the inefficiency of nation-states in matters of security that should impose appropriate duties and related rights on integration associations. This thesis is quite relevant through the prism of the EU energy security policy, because it is integration in the energy sector that is one of the tools to protect such security.
A fairly close transactional concept of European integration links security with communication and interaction between EU member states, which forms trust and common responsibility as a guarantee of countering threats. Cooperation is an extremely important tool for implementing the energy security policy, and such cooperation is implemented both at the general level of European institutions and at the sectoral level. An example is the rules of the Third Energy Package on the activities of national regulators of electricity and gas transmission networks, which, on the one hand, are vested with additional powers in accordance with the EU Electricity and Gas Directives, and on the other hand, are bound by the requirements of cooperation and control by specialized supranational institutions, such like ACER or the Energy Community.
The formation of the EU common energy policy and energy security policy, which for a long time was not reflected in the original EU legislation, should be studied in conjunction with integration in other areas. After all, the emergence of new areas of common EU policies is due to the very essence and content of European integration processes. This phenomenon is called «transfusion» and, according to E. Haas, is that «cooperation between states in one area of politics will lead to pressure for cooperation in other areas of politics» [5, p. 16]. For example, the need to create an internal EU energy market was significantly influenced by measures to create an internal EU market, develop competition policy, etc.
The system approach allows to show the interconnections of energy with other spheres and spheres of society's life, in particular, with ecology, economy, etc. And this requires a holistic legal framework within which activities of any direction take place.
The historical approach is also important, allowing to show the development of the European energy legislation in spatial and temporal coordinates as a result of the action of the objective laws of globalization and glocalization, which combine patterns and specifics and make predictable consequences, and the alignment of development predictable. It is in the aspect of the historical development trend that, for example, the main documents of the EU should be analyzed: the Paris Treaty of 1951, the Rome Treaty of 1957, the Brussels Treaty of 1965, the Maastricht Treaty of 1992, the Amsterdam Treaty of 1997, the Lisbon Treaty of 2007.
The dynamics of the negotiation process testifies to the extreme complexity of reaching agreements on the regulation of the energy sector. The ambiguous vision of such strategically important issues as energy has repeatedly prevented the inclusion of sections on energy in the final documents at different stages of the creation of the EU.
At the same time, the need to address these issues was obvious both in theoretical and legal and practical terms. Therefore, the first steps of the European Community in 1951 concerned the coal market, in 1957 they were supplemented by an atomic energy treaty, and the oil crisis of the 70s of the last century included concrete actions on the agenda to achieve an energy balance and develop universal strategies for the relationship between energy producers and their consumers. Emergencies and crises dictated new norms of authority in the legal regulation of the energy sector and ensuring energy security.
Modeling the cyclical nature of economic dynamics, the periodicity of crises and other socio-economic phenomena, directly related to the energy sector and security activities, requires a clear legal justification. Therefore, modeling and extrapolation methods should be applied to the analysis of the EU energy legislation in order to develop recommendations for the implementation of its basic principles in Kazakhstani legislation, which is aimed at creating favorable conditions for achieving energy security.
There is also a need to use a forecasting method to study the problems of the legal framework of energy security policy in the EU, which is aimed at a new solution and development of original concepts of global and national development security in the aspect of legal regulation of energy security at the management level, within the framework of sustainable development strategies based on efficient use of energy resources and optimal distribution. Rational use, reduction of import dependence, integration of energy markets, the ratio of supranational and national competence — all this should be clearly outlined and predicted through legal and economic models.
Institutional and structural-functional methods can be effectively applied in the analysis of the legal regulation of the processes of formation and activities of specific EU authorities that regulate the sphere of energy security. It is necessary to analyze the competencies of such institutions as the European Parliament, the Council of Ministers of the EU, the European Commission, the European Court of Justice, the Committee of Permanent Representatives, etc., whose activities contribute to the establishment of cooperation in the energy sector.
It should be noted that the functional approach was initially the core of all European integration processes, and it was within the framework of the functional approach that the views of the main ideologists of such integration, J. Monnet and R. Schuman, were built. In particular, this was reflected in the statement of Robert Schumann on May 9, 1950, who noted that «Europe cannot be built at once or according to a certain plan, it will be built gradually through concrete achievements that will lay the foundations of de facto solidarity». This thesis led to the formation of the concept of neo-functionalism as one of the main means of analyzing the process of European integration, European common policies and European law. Neofunctionalism itself, in the words of one of its founders D. Mitrany, lies in the fact that «each time the nature and significance of the problem will determine the appropriate form of institutions». Therefore, when considering any act of the EU energy law, as well as the functions of each EU institution in the energy sector, it is first of all necessary to proceed from the goals and objectives that were supposed to be solved with their help. Three energy packages can serve as a striking example of such functionality, each of which was aimed at solving its own local problem, which at the time of adoption dominated the EU energy policy.
Functionalism, in its turn, leads to an appeal to the teleological approach in the study of the legal and institutional foundations of the EU energy security policy, which requires an analysis of a system of three categories: goal — means — result. At the same time, the categories of goals and results always determine the choice of specific means, and goals are based on certain interests of the main actors in the EU energy policy. This approach is especially important, since with regard to EU energy law, this is not about formally fixing already established customs and rules of conduct in this area, but about creating completely new rules designed to change existing relationships or create new ones. And this is possible only on the basis of a balance of interests of the EU institutions, member states and energy market participants, since the practical nature of the development of a legal innovation lies in «a combination of the interests of the parties involved in specific relations, and the consistency of these interests with the interests of third parties». The nature of the formation of the relevant international legal norms and norms of the acquis communautaire, when «out of the customs expressing the free will of nations, their consent in the implementation of mutual interests, international law was also formed» [6, p. 5].
The specificity of interests and goals determines the choice of specific means to achieve the desired results. It should be noted that not only the formally enshrined norms of the EU energy law should be considered as means, but also the features of the methods and tools of legal regulation chosen for the energy sector, since legal means, due to their «compromise» nature, are designed to connect the ideal (goal) with the real (result). Accordingly, the means is «a link between the subject and the object of activity, between the ideal, imaginary model and the material result. Therefore, legal means, acting as a specific intermediary, inevitably include both fragments of the ideal (instruments, means-settings — subjective rights, obligations, benefits, prohibitions, incentives, punishments, etc.), and fragments of the real (technology, means-actions aimed at the use of tools — primarily acts of realization of rights and obligations)» [7, p. 10].
No less significant is the method of comparative analysis, which makes it possible to compare the results of the implementation of energy security legislation in different EU member states and compare them with the situation in a similar area in other countries of the world, in particular the Republic of Kazakhstan. This method makes it possible to characterize general anti-discrimination steps and at the same time the specificity and stage-by-stage liberalization of the energy sector of the EU member states, which will allow the Republic of Kazakhstan to choose the most appropriate forms and methods when an understanding of the common interest dictates the fulfillment of obligations even in the absence of guarantees.
The importance of a comparative methodology is also due to the fact that in the context of globalization it is not enough just to determine how the EU legislation works. This is not only a matter of interaction between the EU law and the national law of the member states. Significant influence is exerted by «international trade and commercial law, global administrative law, etc. As national and international legal systems become more and more intertwined, the challenge is to develop a better understanding of the different types of legal arguments deriving from national, international and EU law». At present, own conceptual approaches to the methodology of comparative legal research have been developed.
Content analysis should be used in the study of the source base — regulations, agreements, concepts, directives, protocols, other documents regulating the EU energy security sphere. This not only makes it possible to comprehensively reveal the content of these documents, but also to reveal the logic of their essence, the sequence of tasks set, the unambiguity of interpretations and other important parameters that can be used to characterize the legal framework and legal practice of the EU in the field of energy security. After all, the effectiveness of legal regulation is ensured by compliance with the basic principles of law, including: proportionality, when the level of obligations does not exceed what is necessary to achieve the goal; equality (non-discrimination); protection of legitimate expectations (legitimate benefit is not infringed, except in cases where it is necessary to protect the public interest); protection of fundamental human rights and provision of procedural rights (fair process and the right to express one's opinion). Such an understanding of the content of regulatory documents indicates their acceptability for all real and potential participants in the European association.
Factor analysis should be introduced to process and generalize the facts of the practical implementation of the legal policy of energy security in the member countries of this European association. On these bases, the features of the functioning of unified mechanisms in separate EU states are determined. Such an analysis also makes it possible to make sure that hundreds of legal norms in force in the European Union do not have any enforcement mechanism at all, but rely only on legal culture and legal tradition. But this does not reduce their effectiveness in implementation and execution. And such a high level of legal culture and consciousness of the European community, of course, is an attractive role model.
Determining the content components of the concepts and terms of the EU legislative acts on energy security issues requires the use of a number of general scientific methods: synthesis, deduction, induction, abstraction, etc., which make it possible to identify analogues of national legislation, which is especially important for solving the problems of adapting national legislation to European. Certain standard norms will ensure the functioning of optimal energy models, promising mechanisms for dynamic development and the effectiveness of integration processes. First of all, this should concern the creation of effective monitoring and warning mechanisms that lay the conditions for cooperation and real energy security at the present stage of civilizational development for both the EU member states and the Republic of Kazakhstan.
It seems that such a comprehensive and multi-level approach to the methodology of legal research of energy security policy will make it possible to explain not only the need for legal regulation of energy security issues, but also to identify the features of such regulation.
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