Constitutional Right of the Citizens to Favorable Environment (Zhumageldy Sakenovich Yelyubayev, Doctor of Law, Professor, Corresponding Member of St. Petersburg Academy of Sciences and Arts (RF), President of Kazakhstan Petroleum Lawyers Association (KPLA)

Zhumageldy Sakenovich Yelyubayev,

Doctor of Law, Professor,

Corresponding Member of St. Petersburg Academy of Sciences and Arts (RF),

President of Kazakhstan Petroleum Lawyers Association (KPLA)

Constitutional Right of the Citizens to Favorable Environment[1]

GENERAL

The right of the citizens to favorable environment results from the sense and content of the statutory provision contained in Clause 1 of Article 31 of the Constitution of the Republic of Kazakhstan, which establishes that «the state shall set an objective to protect the environment favorable for the life and health of the person.»[2] This constitutional provision is included in the section of the fundamental law stipulating the rights and obligations of the individual and citizen, and therefore its literal interpretation allows concluding that such right of the individual and citizen is the constitutional right to be secured by the state by all legal means and remedies.

Looking back in the constitutional past reveals that this legal category was first declared in the Constitution of Spain (1978) and was extended to the Constitutions of post-Soviet states.[3]

This constitutional provision was further included in the RoK Environmental Code, specifically Article 13 expressly stipulates the right of individuals to environment which is favorable for their life and health». It should be noted that the right to favorable environment corresponds to the obligation of the state (government authorities and officials), as well as entities and individuals to make all efforts to preserve and restore natural environment.

Differently worded provisions of the right to favorable environment are also contained in the international legal acts, e.g. the African Charter on Human and Peoples’ Rights (1981), the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador) (1969), the Declaration of Fundamental Rights and Freedoms adopted by the European Parliament (1989),[4] i.e. this legal institute is not a novel of the constitutional law.

The right to favorable environment is one of the natural and fundamental rights arising at birth, as well as the right to life, therefore it should be treated as a complex legal institute, including the rules of constitutional, international, civil and environmental law. Unfortunately, in theory and practice there exist a different understanding and interpretation of this legal institute, which causes the absence of a uniform law enforcement practice in protecting rights and legal interests of the citizens of our country. Meanwhile the most common view is that the right to favorable environment is understood as an opportunity of the individual and citizen to be in the environment entailing natural resources necessary and sufficient for the existence of the current and future generations, and the quality of which is capable of meeting physical, spiritual and aesthetic needs of individuals. It should be noted here that the notion of «the right to favorable environment» is not a synonym of the notion «favorable environment»[5], because the latter legal category though being related to the former one is at the same time the subject of the environmental law but not of the constitutional law.

The right of the individual to favorable environment closely relates to other environmental rights of individuals, such rights as the right: to receive from the government authorities and organizations timely, complete and reliable information; to participate in designing plans and programs related to the environment; to file with the courts claims of damages to health and property caused as the result of violation of environmental law, etc.[6]

Thus, summarizing the above it can be stated that the right to favorable environment is one of the fundamental and universal subjective rights of the individual and citizen, affecting vital activities associated with maintaining normal environmental, economic, aesthetic and other living conditions. However it should be noted that the right of the individual and citizen to favorable environment closely relates to an obligation of the citizens of the Republic of Kazakhstan «to preserve nature and protect natural resources» (Article 38 of the RoK Constitution), which in itself constitutes a specific means of securing and exercising the right to favorable environment. In this case the balance of the right and obligation of the citizen with respect to the environment is a conceptual legal mechanism ensuring the effect of the constitutional rules contained in Section II (The Individual and Citizen) of the Constitution of our country.

WAYS AND MEANS OF EXERCISE OF THE RIGHT TO FAVORABLE ENVIRONMENT

Achievement by the state of the objective to secure favorable environment for human life and health is ensured by the whole complex of ways and means stipulated by the applicable legislation as well as by nature protection activities of all parties to legal relations in the sphere of the use of natural resources and protection of the environment. First of all, the right of the citizens to favourable environment is secured by imperative rules of the environmental legislation through:

1)      Licensing activities in the sphere of environmental protection;

2)      Setting environmental standards;

3)      Conducting state environmental review;

4)      Limiting the use of natural resources;

5)      Implementing the best environmentally friendly technologies;

6)      Developing sustainable models of production and consumption;

7)      Restoration and reproduction of natural resources;

8)      Establishing a system of payment for the use of natural resources;

9)      Monitoring the activities of the users of natural resources;

10)  Maintaining statutory cadasters of natural resources;

11)  Protection and development of specially protected natural objects;

12)  Environmental education and awareness;

13)  Ensuring unavoidable liability for violation of the environmental legislation;

14)  International cooperation in the sphere of environmental protection (global partnership).

It should be noted that the environmental rights of individuals stipulated by the RoK Environmental Code can also be deemed to be specific ways of exercise of the rights of individuals to favorable environment. Thus, in the sphere of environmental protection, the individuals may, for example, form associations and funds; receive complete and reliable information on the condition of the environment; file claims, applications and proposals with the government authorities on environmental issues; initiate actions; participate in making decisions regarding protection of natural resources. The exercise by the individuals of the above environmental rights and fulfillment by them of their obligations to preserve and protect natural resources[7], absolutely contribute to the achievement by the state of the purpose to maintain favorable environment for the life and health of the people. Thus, the state, the public at large and separate individuals in particular should be partners in the efforts to protect the environment favorable for human life and health. Only such understanding of the constitutional rights and obligations as well as imperative provisions of the environmental legislation makes it possible to attain the above objective.

Further it should be noted that the state by formalizing in law the right of individuals to favorable environment shall provide guarantees of the proper exercise of such right. Pursuant to the applicable law, the key element of the system of legal guarantees in the exercise of the right to favorable environment is, for example, such remedies as: invalidation of the acts of central and local government authorities; avoidance and prevention of actions violating the rights and legal interests of individuals in the sphere of environmental protection and use of natural resources; indemnification of tangible damage and compensation for intangible losses.

Environmental human rights instruments shall include mechanisms stipulated in the international legal acts which the Republic of Kazakhstan joined. One of such key acts is the Aarhus Convention[8], imposing express obligations on participating countries to ensure the rights of individuals to favorable environment. Thus the Convention envisages a necessity: to provide full public access to information, public involvement in environment-related decisions and development of the state environmental policy, programs and plans; to provide public access to justice on environmental issues; to support public organizations engaged in environmental protection.

Certain obligations of the Republic of Kazakhstan regarding protection of environment, rational use and restoration of natural resources arise from the provisions contained in many other international legal acts.[9]

Thus, only the full use by the state of all ways and instruments to secure the rights of individuals to favorable environment allows recognizing the environment in the Republic of Kazakhstan to conform to the established legal criteria, standards and regulations with regard to its cleanness, resource intensity, environmental sustainability, species and aesthetic diversity. It should be noted that the criteria of favorable environment (resource intensity, aesthetic qualities and cleanness) were defined in the Stockholm Declaration (1972 года), the Rio de Janeiro Declaration on Environment and Development (1992), and the legislation of the Republic of Kazakhstan on natural resources and sanitary and epidemiological control.

ISSUES OF THE EXERCISE AND ENJOYMENT OF THE RIGHT TO FAVORABLE ENVIRONMENT

As noted above the Constitution of the Republic of Kazakhstan establishes that one of the fundamental objectives of the state is protection of the environment favorable for human life and health. The Strategic Plan for Development of the Republic of Kazakhstan until the Year 2020 states that successful diversification of economy closely relates to the solution of environmental issues and mitigation of man-caused impacts. The president of the country initiated the international program «Green Bridge», the implementation of which would require to bring domestic environmental legislation into line with the principles of this program.

In spite of all progressive ideas contained in the current environmental legislation, the law enforcement practice revealed certain gaps and contradictions. The existing system of regulation of environmental issues is justly criticized by the experts and international observers, who note that law and law enforcement practice in Kazakhstan are aimed at punishing a user of natural resources rather than at restoring and preserving the environment.

In 2007 the Environmental Code was adopted to systematize the entire regulatory and legal framework, to improve the system of standardization, state control and other institutes, and to introduce advanced international standards into practices of the use of natural resources and environmental protection. At the same time certain regulations within the framework of the applicable law do not attain a socially beneficial objective, create unreasonably high administrative barriers for business and have a high potential for corruption. The current practice of regulating compensation for environmental damages is not aimed at restoring the condition of natural objects; its purpose is the replenishment of the state budget at the expense of funds allocated to resolve environmental issues.

The current legislation does not provide for efficient motivation of the users of natural resources, who introduce advanced and «green» technologies and systematically carry out environmental activities. The current regulations are to a greater extent of unilateral «punitive» nature, and do not meet the requirements of effective development of the sphere of environmental protection. Meanwhile the state policy and international initiatives of the Republic of Kazakhstan (in particular the global program «Green Bridge») identify a necessity to introduce incentives for the users of natural resources. Pursuant to the effective international treaties (e.g. sub-clause (d) of clause (1) of Article 19 of the Energy Charter Treaty), Kazakhstan should pay a special attention to motivating the users of natural resources to use cleaner types of fuels and technologies and process facilities that reduce environmental pollution.

According the experts, a big concern is the absence of the efficient state system of monitoring of environment components pollution. Reduction of the number of hydrometric gauging stations and stations monitoring atmospheric air resulted in the absence of background rates of pollutants in the atmospheric air and water bodies (sources). Therefore in their calculation of standards the experts refer and rely on the Soviet data. E.g. Kazhydromet RGP provides background concentrations in the atmospheric air of only some substances (nonorganic dust, nitrogen oxide, hydrogen sulfide, and carbon oxide) and several substances in major rivers and lakes (where hydrometric gauging stations were established). There are almost no objective data on topsoil, small rivers, underground water, and atmospheric air through the entire territory of the Republic of Kazakhstan, which could be used in environmental activities.

Another problem is the absence of uniform judicial practice of considering environmental cases. In our view, the courts did not develop a uniform approach to key aspects of such issues for example as: application of direct and indirect methods of environmental impact assessment in terms of provisions set in sub-clause 42 of clause 1 of Article 1 of the Environmental Code; definition of «historical pollution»; collection of damages arising from legal activities of a user of natural resources in emergencies; distinction between materials and wastes in their classification, etc.

In some situations one and the same court uses contrary approaches to similar cases. It should be noted here that the Resolution of the Plenum of the Supreme Court of the Republic of Kazakhstan dated December 22, 2000 No. 16 «On Practice of Application by Courts of Environmental Legislation» has grown stale due to changes to the legislation, and the effective provisions of the said Plenum Resolution on the issues of recovery of environmental damages are not fully applied. Thus, e.g. practically the provisions of the Plenum Resolution that courts should investigate the circumstances proving occurrence of harmful consequences, and take measures to identify a party which caused harm, guilt and causal relationships (Clause 5); given that not every pollution becomes legally significant and only such pollution which exceeds the established environmental standards (Clause 9).

The above issues and concerns related to the use of natural resource and protection of the environment, contradictions and gaps of environmental legislation require establishing such a system of legal regulation that would help the state achieve the objective to ensure favorable environment for human life and health.

ISSUES OF IMPROVEMENET OF THE LEGISLATION

Currently major users of natural resources, industrial and professional associations with the participation of international experts have prepared specific proposals for reforming environmental legislation, acceptance of which would improve both investment climate in the country and meet the objective of the Republic of Kazakhstan to ensure favorable environment for human life and health.

The proposed amendments to the environmental legislation relate to the following issues:

First, we undertook a comprehensive review and revision of the terms and definitions used in the environmental legislation in order to streamline them and accurately define their legal status, specifically those sub-institutes pertaining to legal consequences that might arise.

Secondly, there were proposed amendments to reduce administrative barriers for issuance of environmental emissions permits. Specifically, it was proposed to introduce a «one window» principle, a presumption of issuance of environmental permits, reduction of the term of issuance, exclusion of a number of documents required upon filing applications for environmental permits, and separation of the processes of review, endorsement and approval into individual procedures.

Thirdly, there is introduced legal regulation of a number of processes such as reconsideration of applications for environmental emissions permits, public hearings, setting terms for the use of natural resources. There are filled gaps in the legislation, and obligations of the environmental authorities.

Fourthly, there have been streamlined the issues of responsibility of the users of natural resources for environmental damage. The institute of responsibility was significantly revised and redrafted. In particular, triple responsibility for environmental offence is excluded and measures to bring the environmental legislation into conformity to general principles of law and principles of branches of law. Compensation for harm caused to the environment is set as a real priority. Grounds for violation of the principle of equality of all before the law and uniformity of law across the territory of the Republic are removed. It is proposed to establish a special national environmental fund to accumulate environmental payments by the users of natural resources as compensation for the harm caused to the environment, and to allocate them on the protection and restoration of natural resources.

Fifthly, the role of the community and non-government organizations in the solution of environmental issues enhances. E.g. it is proposed to introduce the institute of environmental ombudsman who could assist in mediation resolution of environmental issues; the role and significance of environmental audit also enhances.

Sixthly, specific measures are proposed to settle such issues as gas flaring and instantaneous high emissions. It is proposed to introduce the institute of «urgent necessity» into the environmental law and legislation.

Huge work has been performed and significant resources have been allocated and expended; the community of the users of natural resources and key players in the Kazakhstan economy advanced a consolidated view. It should be noted that the public at large and business are seriously concerned about the current environmental regulation. Meanwhile this initiative of the users of natural resources and independent experts has been being reviewed by the governmental authorities for almost two years, and currently no «light can be seen at the end of the tunnel». No response, in our opinion, does not meet the imperative of the time and impedes the state from achieving the objective to ensure protection of the environment favorable for the individual and citizen.

CONCLUSION

In conclusion it should be noted that given the ambition of the Republic of Kazakhstan to be included in the list of 50 advanced countries of the world, essentially will ensure the right of individuals to favorable environment, as stipulated by the constitutional rule and environmental legislation. Our environment should service to satisfy the needs of the society and should be preserved for future generations of our country, to attain this objective a balance of consumption of natural resources and protection of the environment is to be maintained. This objective is attainable, if the state, users of natural resources and individuals shall within the framework of social partnership and responsibility protect the environment.

It should be stated that the existence of an explicit, just and reasonable system of environmental legislation is an important step towards the implementation of the state environmental policy based on the Constitution. It is the efficient state regulation that should ensure the environment favorable for people.