Legal regulation of the state administration of the Arctic zone: from individual bodies to a single system

Golubenko Konstantin Aleksandrovich ORCID: 0000-0002-5724-778X Master of Laws, International Lawyer of Nexign, JSC 195251, Russia, Sankt-Peterburg, g. Sankt-Peterurg, ul. Politekhnicheskaya, 29 k.a.golubenko@mail.ru Other publications by this author

Introduction

The competent distribution of powers between the subjects of public administration with the help of legislative regulation of their legal status makes it possible to achieve the goals of forming "... a successful state in the international arena, as well as a state focused on interaction with society as a whole, with every citizen in domestic relations." This is especially true of the Arctic zone of Russia, which has been the sphere of Russia's strategic interests for many years. The formation of an effective mechanism for managing the Russian Arctic is an extremely urgent task in the context of the comprehensive implementation of Russia's state policy for the development of the Arctic. According to the correct remark of the Doctor of Economics, Professor I. V. Nikulkina, "The development of the Arctic zone of the Russian Federation is the most complex and large-scale project of modern Russia, requiring significant resources, new and special approaches to regulating such a multi-purpose and structurally diverse object of public administration as the Arctic zone of the Russian Federation" ^{[1, p. 5]}.

With this in mind, within the framework of this study, it is extremely important to study in detail the current state of legal regulation of the subjects of state administration of the Arctic zone of the Russian Federation.

Within the framework of this study, public administration is considered in a narrow sense as "... a form of implementation of the activities of state executive bodies and their officials in the general system of social management" ^{[2, p. 122]}, which is the main mechanism for implementing administrative and legal norms.

The main part

Subjects of management of the Arctic zone according to Federal Law No. 193-FZ of 13.07.2020

Federal Law No. 193-FZ of 13.07.2020 "On State Support of Entrepreneurial Activity in the Arctic Zone of the Russian Federation" (hereinafter – 193-FZ) ^[3] as one of the key regulatory legal acts devoted to the socio-economic and investment development of the Arctic zone of Russia, addresses issues of public administration of the Arctic zone. It is in the 193-FZ that the main actors of the Arctic zone management are defined, which include the Authorized Federal Body, the Management Company and the Public Council of the Arctic Zone.

It should be noted that even at the stage of adoption of the draft law on state support of entrepreneurial activity in the Arctic zone, its initiators planned to allocate a special state commission as a separate body of management of the Arctic zone. But this idea did not receive support and was criticized in the State Duma of the Russian Federation due to the fact that due to such a three-tier management system (a state commission, an authorized federal body and a management company), the local government system in certain Arctic regions of Russia is leveled, which does not correspond to Chapter VIII of the Constitution of the Russian Federation ^[4]. As a result, by the second reading of the draft law, the provisions on the State Commission for the Development of the Arctic were excluded.

It is noteworthy that a little later than the official publication of 193-FZ, an Interdepartmental Commission on Ensuring the National Interests of the Russian Federation in the Arctic was established (hereinafter also the Interdepartmental Commission), and its powers are in many ways similar to those proposed by the authors of the draft law on supporting entrepreneurial activity in the Arctic zone, for example, in terms of monitoring (surveillance, analysis and evaluation) of the state of the socio-economic development of the Arctic zone, and in terms of coordinating the activities of the authorities. And, it turns out that in the case of the Interdepartmental Commission, the provisions of the Constitution of the Russian Federation on local self-government are not violated, while similar provisions in the draft federal law already contradict constitutional norms. Of course, we can refer to the fact that the Interdepartmental Commission does not function as an independent body, but as a structural subdivision of the Security Council of the Russian Federation and its formation was carried out through the exercise of its competence by the President of the Russian Federation and, as a result, this commission performs the functions of ensuring national security (which is largely true). But, at the same time, it is difficult to call such an approach consistent and consistent in terms of the compared powers.

 Thus, in Chapter II of this federal law, only 3 Arctic zone management bodies are allocated:

1.           The authorized federal body represented by the Ministry of the Russian Federation for the Development of the Far East and the Arctic (hereinafter – the Ministry of Regional Development), which, within its competence, carries out the development and legal regulation of the development of the Arctic zone of the Russian Federation ^[5]. As part of the analysis of the powers of the Ministry of Regional Development, we should fully agree with the conclusions of I. A. Ignatieva, who notes the following: "... some of the powers of the Ministry of Regional Development are formulated specifically in relation to the Far Eastern Federal District (the Arctic zone of the Russian Federation – author's note), and others – indirectly – in relation to the relevant parts of the territory of the Far Eastern Federal District in cases where these powers are established in relation to the Far Eastern Federal District. Taking into account the fact that certain territories of the Far Eastern Federal District are simultaneously territories of the Russian Arctic, the consolidation of certain functions and powers of the Ministry of Eastern Development of Russia only in relation to the Far Eastern Federal District creates an uneven regime of management of territories included in the Russian Arctic" ^{[6, p. 5]}.

2. The management company represented by the Joint-Stock Company "Corporation for the Development of the Far East and the Arctic", whose functions include management, development of human capital in the Arctic zone, and assistance in providing personnel to residents of the Arctic zone ^[7]. In addition to the functions and powers established by the Decree of the Government of the Russian Federation No. 432 dated 30.04.2015, the Management Company within the framework of 193-FZ received the right to protect and represent the interests of residents of the Arctic zone (Article 17) ^[3]. At the same time, this competence of the Management Company should be evaluated critically due to the following:

1) the norm of Article 17 of the 193-FZ is formulated through the right of the management company to represent and protect the interests of residents, and not by imputing it to it as an obligation. This creates a situation in which the management company has the right to refuse to represent the interests of the resident who applied to it, and even without the need to argue such a refusal and the opportunity to challenge it in court.

2) the list of categories of cases in which the management company has the right to represent the interests of residents is formulated according to the numerus clausus model, that is, it is "closed" in nature.  At the same time, participation in cases potentially creates a situation of "conflict of interest" for the management company, especially if the defendant in the resident's lawsuit is the Ministry of Regional Development, which is the sole shareholder of the management company ^[8].

3) The above article does not resolve the issue of the financial aspect of such representation, which, of course, is extremely important. Taking into account the principle of contractual freedom and the right of the management company to represent the interests of a resident of the Arctic zone, the management company is quite capable of making the possibility of such representation dependent on the payment of legal services of the management company.

All this in its entirety does not allow us to consider this measure of support for residents of the Arctic zone as effective. Therefore, it is extremely important to state Article 17 of the 193-FZ in a new edition:

"Article 17. Protection of the interests of residents of the Arctic zone

1. The management Company, at its own expense, represents and protects the rights and interests of residents of the Arctic zone who have applied to it in court.

2. The management company acts with all the rights of the plaintiff, defendant or interested person on the side of a resident of the Arctic zone, provided that this does not lead to a conflict of interest."

3.           The Public Council of the Arctic Zone (hereinafter referred to as the Public Council), whose key objectives are to take into account the needs and interests of Russian citizens living in the Arctic zone, as well as the protection of the rights and freedoms of citizens and organizations within the framework of the implementation of state policy in the field of development of the Arctic zone ^[3] and which is an element of the Arctic zone management system ^{[9, p. 19]}. 

The first and key problem related to the Public Council is that the regulation on the Public Council of the Arctic Zone has not been officially published for public information. As stated in the 193-FZ, one of the key objectives of the creation of this body is the protection of the rights and freedoms of citizens and non–profit organizations in the implementation of the state policy of regulatory legal regulation in the field of development of the Arctic zone. According to the provisions of Part 3 of Article 15 of the Constitution of the Russian Federation ^[10] and paragraph 8 of the Decree of the President of the Russian Federation dated 23.05.1996 No. 763 ^[11], regulatory legal acts of federal executive authorities (which include the Ministry of Regional Development) are subject to official publication for general information. Their non-publication entails the impossibility of their application, and also does not allow the courts to take them into account when resolving disputes. By itself, this fact significantly undermines the legality and legitimacy of the activities of the Public Council of the Arctic Zone, designed to protect the rights and interests of citizens and organizations in the Arctic zone of Russia, and also raises doubts about the legitimacy of those regulatory legal acts that have been adopted and will be adopted in the future, taking into account the opinion of this body.

The next problem is also related to the order of formation of the Public Council. Its composition is approved by the order of the Ministry of Regional Development, which de jure makes it one of the bodies under the Ministry of Regional Development of Russia. By the way, it is worth noting that the Ministry of Eastern Development of Russia does not even deny such a connection and on its official website on the corresponding page designates this body as the "Public Council of the Arctic Zone under the Ministry of Eastern Development of Russia" ^[12]. All this significantly reduces the capabilities of the Public Council in the field of managing the socio-economic development of the Arctic zone of the Russian Federation and detracts from its importance.

The latter additionally means the possibility of extending the provisions of the federal legislation on public control in the Russian Federation to it, within the framework of which it is allowed to create Public Councils under federal executive authorities according to the established procedure ^[13]. Anticipating the opponents' claim that the provisions of the above federal law do not apply to the Public Council of the Arctic Zone due to the fact that the Public Council is not a public control body, it is possible to note the following. Public relations that are not included in the sphere of regulating public control over the activities of government bodies in Russia are established by Part 3 of Article 2 of Federal Law No. 212-FZ of 21.07.2014 ^[13].

In this list there is no mention of public relations related to the development of the Arctic zone of the Russian Federation. Moreover, in terms of their goals, public councils created in accordance with the procedure established by Article 13 of the said federal law are very similar to the goals of forming a Public Council of the Arctic zone and have the focus of protecting the rights of citizens and organizations.

The latter conclusion automatically leads to a number of questions about the legality of the method of formation of the Public Council of the Arctic zone chosen by the Ministry of Regional Development: why a competitive procedure for electing members of the Public Council was not chosen, and why representatives from various non-profit organizations are nominated only by the highest executive authorities of the subjects of the Russian Federation.

The next problematic aspect is related to the powers of the Public Council. As the powers of the Public Council, Part 2 of Article 7 of the 193-FZ specifies: monitoring the processes of interaction between residents of the Arctic zone and indigenous peoples living in the Arctic zone; participation in the development of environmental protection measures in the Arctic zone; preparation of proposals to the Ministry of Regional Development and the management company on effective management of the Arctic zone ^[3].

Correlating the previously designated goals of creation and powers, it is possible to note that the Public Council does not really have the powers that would allow it to effectively take into account the needs and interests of Russian citizens, as well as to protect their rights, for example, to conduct its own proceedings with the preparation of conclusions on violations of citizens' rights and their submission to the competent authorities. Currently, the Public Council does not have the authority to act as an independent body resolving disagreements between the subjects of the Arctic zone. Additionally, as another problem, it is possible to highlight the fact that the opinion of the council should not be taken into account without fail by the subjects of state administration of the Arctic zone.

Moreover, the powers of the Public Council do not fully correlate with the goals of the adoption of the 193-FZ, in connection with which questions remain open about how the Public Council can and should contribute to the socio-economic development of the Arctic. Currently, representatives of the business community (in particular, residents of the Arctic zone) are not included in the Public Council. This creates risks that in controversial situations the opinion of the latter will not be taken into account. The latter is unlikely to contribute to the qualitative socio-economic development of the Arctic zone.

To solve the described problems and increase the level of significance and involvement of the Public Council, it is important to take the following measures:

1. To empower the Public Council of the Arctic Zone with the powers corresponding to the purposes of its creation: to conduct its own proceedings with the preparation of conclusions on violations of citizens' rights and their submission to the competent authorities, to conduct conciliation procedures; to oblige the subjects of state administration of the Arctic zone to take into account and reasonably reject the proposals of the council.

2. After resolving the issues of the powers of this council, it is also necessary to revise the procedure for forming the Public Council of the Arctic Zone, establishing it on a competitive basis with the mandatory inclusion of representatives from residents of the Arctic zone.

3. In the future, it is necessary to issue a new order on the Public Council of the Arctic Zone, ensure the implementation of the procedure for its registration with the Ministry of Justice of the Russian Federation and publish it in accordance with the procedure established by current legislation.

Federal-level Arctic zone management entities not included in the list of management entities under Federal Law 193-FZ

Among the subjects of state administration of the Arctic zone, the President of the Russian Federation, the Security Council of the Russian Federation and the Government of the Russian Federation are not specified in 193-FZ.

The President of the Russian Federation approves the fundamentals of state policy in the Arctic zone ^[14], deals with issues of improving public administration in the field of development of this zone ^[15] and, in fact, key issues of strategic management of the Arctic zone of Russia are concentrated in his competence.

Within the framework of the Security Council of the Russian Federation, there is a special and previously mentioned Interdepartmental Commission on ensuring the national Interests of the Russian Federation in the Arctic, which develops measures aimed at ensuring Russia's national security in the Arctic and socio-economic development of the Arctic zone, as well as coordinating the activities of authorities in this area ^[16].

The Government of the Russian Federation is also the governing body of the Arctic zone, which follows not from the provisions of Chapter II of 193-FZ, but from the systematic interpretation of other provisions of 193-FZ. Thus, the Government implements regulatory legal regulation in the context of the Arctic zone through the implementation of the following powers:

1) defines the management company and its powers (clause 4) of Part 1 of Article 2 193-FZ);

2) establishes the sections of the continental shelf of Russia on which state support measures are applied (Part 4 of Article 2 193-FZ);

3) defines the types of entrepreneurial activity, the implementation of which will not allow counting on individual measures of support from the state within the framework of 193-FZ (Part 2 of Article 4 of the said federal law). It is worth admitting that at the moment the Government has not exercised its powers in this part. At the same time, if we imagine a situation in which the Government imposes such restrictions, then the question automatically arises about the possibility of residents of the Arctic zone receiving the support measures established by 193-FZ, as well as the measures that are provided to them in the development of the provisions of this federal law. Unfortunately, the Russian legislation at this stage lacks the regulatory framework of the transitional mechanism in the described situation. At the same time, the most fair approach should be recognized, in which the newly adopted decree of the Government of the Russian Federation on this issue will be applied only to those who will receive the status of a resident of the Arctic zone after the entry into force of the decree. Such a mechanism is the most convenient and fair and allows current residents to minimize the costs of changing activities, as well as continue investing in the development of the Arctic zone.

4) On the basis of Federal Law No. 194-FZ of 13.07.2020 "On Amendments to Certain Legislative Acts of the Russian Federation in Connection with the Adoption of the Federal Law "On State Support for Entrepreneurial Activity in the Arctic Zone of the Russian Federation" (hereinafter – 194-FZ), the Government of the Russian Federation was granted the authority to approve the program of state support for traditional economic activities of indigenous small-numbered peoples in the Arctic zone of the Russian Federation ^[17]. The possibility of approval of such programs by the Russian Government means granting the latter authority and management authority for the sustainable development of the Arctic zone, which should be recognized as a positive measure.

5) establishes the specifics of state and municipal control of residents of the Arctic zone (Article 13 193-FZ).

6) determines the procedure and conditions for partial compensation of a resident of the Arctic zone for insurance premiums to state extra-budgetary funds (Part 4 of Article 14 of the 193-FZ) ^[3], etc.

One of the consequences of the reform of the legislation on the Arctic zone was the ability of the Ministry of Finance of the Russian Federation and the Federal Tax Service of Russia to exercise powers related to providing explanations on the application of tax legislation in the context of taxation of residents of the Arctic zone ^[18]. Taking into account the fact that their explanations largely have a regulatory effect and have regulatory properties, it is also quite possible to attribute these authorities to the subjects of state management of the socio-economic development of the Arctic zone.

The Interdepartmental Commission of the Security Council of the Russian Federation, established in order to develop measures aimed at ensuring Russia's national security in the Arctic and the socio-economic development of the Arctic zone, is also not included in the list of subjects of the Arctic zone management in 193-FZ.

The State Commission for the Development of the Arctic is a coordinating body that ensures the interaction of authorities among themselves and organizations in solving socio–economic and other tasks aimed at the development of the Arctic zone and ensuring national security ^[19]. Taking into account the above, it is quite possible to attribute this State Commission to the subjects of management of the Arctic zone.

As can be seen from the definition, the main task of the State Commission is to ensure coordination on issues of socio–economic development and national security of the Arctic zone of Russia.

But after all, similar functions are assigned to the Interdepartmental Commission, since the latter's powers include "... coordination of the activities of bodies and organizations in solving operational, medium-term and long-term tasks of ensuring national security in the Arctic and socio-economic development of the Arctic zone" ^[16].

Granting two different commissions the same powers is a duplication of functions and is potentially capable of having a negative impact on the results of coordination, at least because of the risks of broadcasting to other subjects of legal relations related to the Arctic zone, different requirements, rules, procedures for interdepartmental and other interaction.

Taking into account the identified problem, it is extremely important to eliminate duplication of functions between the Interdepartmental Commission of the Security Council of Russia and the State Commission on Arctic Development under the Government of Russia in terms of coordinating the activities of authorities among themselves and with other organizations, retaining these powers only from one of the commissions. The latter will allow a more qualitative and consistent approach to ensuring the coordination of all stakeholders in the context of the development of the Arctic zone.

Subjects of management of the Arctic zone at the regional and local levels, not included in the list of subjects of management under 193-FZ

The authorities of the constituent entities of the Russian Federation, of course, have the ability to exert a qualitative influence on the management of individual processes within the borders of their territories, which are assigned to the Arctic zone, as well as redistribute powers in this area between themselves and local governments. Within the limits of their competence, the state authorities of the constituent entities of the Russian Federation finance the creation (modernization) of infrastructure facilities in the Arctic zone (Article 3 193-FZ), participate in the work of commissions deciding on the assignment of the status of a resident of the Arctic zone to an organization (Part 7 of Article 9 193-FZ), and a number of others ^[3].

It is possible to include local self-government bodies in the Arctic zone management system, since they have the ability to finance the creation (modernization) of infrastructure facilities in the Arctic zone, introduce tax benefits for residents of the Arctic zone, as well as a number of powers related to urban development in the Arctic zone (issuance of a town-planning plan for a land plot, decision and procedural issues of granting a permit for conditionally permitted type of use) ^[3]. At the same time, it is important to note that the degree of their influence on management processes in the Arctic zone is hardly high.

Conclusion

Based on the analysis, it is logical to conclude that the real list of subjects of state administration of the Arctic zone is much broader than the list available in 193-FZ. With this in mind, it is a little strange to observe a picture in which the bodies listed above, not included in Chapter II of the 193-FZ, are not included in the list of subjects of management of the Arctic zone of Russia, especially considering the enormous influence they have on the management of the Russian Arctic territories.

From the point of view of unification of subjects of state management of socio-economic development, it is extremely important to provide a single transparent list of subjects involved in the management of the Arctic zone of Russia, as well as to exhaustively define their powers. The latter will also improve the quality of public administration, especially in the field of socio-economic development of the Arctic zone of Russia, by creating a unified consistent management system of the Arctic zone of the country. Additionally, this will help to eliminate situations of "duplication" of functions or abuse of authority by the subjects of state administration of the Arctic zone.

In the future, it is additionally advisable to create a single consultative and coordinating body with the authority to protect the rights of citizens and organizations in the context of issues of socio-economic development of the Arctic with enhanced representation in the regions belonging to the Arctic zone.

All these measures in their entirety will contribute to the creation of unified approaches in the field of management of the Arctic zone and the harmonious development of the Russian Arctic.