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Zhumageldy Sakenovich Yelyubayev (Ж.С.Елюбаев) Doctor of Law, MCIArb, Chevron EBU Managing Legal Counsel, President of the Kazakhstan Petroleum Lawyers Association (KPLA), Associate Professor Chair of Customs, Financial and Environmental Law of the Al-Farabi Kazakh National University --------------------------------------------------------------------- (Saratov, October 11-12, 2012)
All-Russian Scientific and Practical Forum «Ecology:
«Unity of Straight and Exterritorial Action of Environmental Norms on Baikonur[1]»
Baikonur Launch Site Background[2]
Under the Resolution of the CPSU Central Committee and the USSSR Council of Ministers of May 20, 1954, design and research organizations were committed to design a multi-stage ballistic missile with an intercontinental range of 7000-8000 kilometers and a thermonuclear warhead with a mass of up to 5.5 tons, which could be able to destroy strategic targets in any conditions whatsoever and military theatres.
The Resolution of the USSR Government dated February 12, 1955 on the construction of the site for testing intercontinental ballistic missiles (hereinafter IBM) was the beginning of a new ambitious space age. The construction of the administration center of the Baikonur launch site, Baikonur, commenced simultaneously with the construction of the special facilities in 1955, as a test engineers village.
Baikonur Launch Site is the most «launching» site in the whole world. On May 15, 1957, the first IBM designed under S.P. Korolyov was launched from Baikonur launch site. As of January 1, 2012 over 1.5 thousand rockets with different spacecrafts were launched from Baikonur, including those piloted by astronauts, and over one thousand of test launches of IBM’s were made.
There is no secret that with the high-tech trends in the world economy, one of the key criteria of development and advance of the state is deemed to be the establishing of the advanced aerospace industry, possession of the state-of-the-art space and missile technologies an opportunity for their ultimate use in all spheres of state-building, including the military aspect. The international space launch site Baikonur.
However, the reliable operation of this complex obliges the parties to space activities to ensure environmental safety both within the area of the space launch-site and trans-border territories, and far outside. Given that environmental safety is deemed to be the status of protection of vital interests and rights of the citizens, the community and the state from any exposures arising as the result of anthropogenic and natural impact on the environment, it should be noted that Russia and Kazakhstan, which are the key parties to the relations arising in connection with the operation of Baikonur, should ensure strict compliance with environmental requirements stipulated by the national legislation of the Republic of Kazakhstan and international legal acts, as well as to provide the unity of direct and exterritorial effect of the environmental rules of the said acts.
The basic legal acts regulating environmental safety relations pertaining to the operation of Baikonur launch-site are the following: 1. The Constitution of the Republic of Kazakhstan adopted by the national referendum on August 30, 1995 (provisions of Articles 31 and 38); 2. The RoK Environmental Code dated January 9, 2007 (hereinafter RoK EC); 3. The RoK Law «On National Security» dated January 6, 2012 No. 527-IV (provisions related to ensuring environmental safety, Articles 4-6, 24); 4. The Convention on International Liability for Damage Caused by Space Objects signed by the member states on March 29, 1972 (hereinafter 1972 Convention)[3]; 5. Baikonur Lease Agreement (hereinafter the Lease Agreement) between the Government of the Republic of Kazakhstan and the Government of the Russian Federation executed on December 10, 1994 (provisions of Clause 8.4 of Article 8); 6. Agreement between the Government of the Russian Federation and the Government of the Republic of Kazakhstan on the Environment and Use of Natural Resources in the Area of Baikonur Launch Facilities under Lease by the Russian Federation dated October 4, 1997 (hereinafter the Environmental Agreement).
As we see the above legal acts containing specific environmental standards[4] have different statuses and relate to the legal acts of different levels, i.e. hierarchical force. The rules of these acts apply directly to the relations pertaining to the operation of the Baikonur facilities. Such conclusion can be drawn based on the assumption that the direct effect if legal rules is actual immediate application of the rules of legal acts to regulate specific and definite public relations which do not require additional legal guidelines.
Thus, e.g. the constitutional provision (Article 31) states that one of the goals of the Republic of Kazakhstan is «protection of the environment favorable for human health and life», therefore the concealment by officials of facts and circumstances that threat people’s life and health is subject to legal liability». This constitutional rule has a direct effect and it constitutes a certain basis for ensuring environmental safety in the country and application of the environmental rules of other legal acts.
It should be noted that the rules of the environmental legislation of Kazakhstan also directly apply to the relations pertaining to the space activities at Baikonur. Specifically, the RoK EC contains a list if environmental requirements, the most important of which are: requirements to: the design of production and technological facilities; construction and operation of industrial facilities; land use; different types of emissions (special use of natural resources); transportation and use of radioactive materials; maintaining radiation control; production and use of potentially dangerous chemical and biological substances etc. The full scope of all these types of anthropogenic activities is conducted at Baikonur, therefore ensuring the direct effect of environmental rules is the one of the main goals of the authorized state bodies of the Republic of Kazakhstan and the Baikonur Administration, i.e. the Russian representatives.
The direct environmental rules are also contained in bilateral contracts and agreements signed by the RoK and the RF with respect to the Baikonur space facilities. Thus the Lease Agreement as an instrument securing safety of Baikonur facilities stipulate the establishing of the sanitary protection zone (hereinafter SPZ), which is obligatory under the RoK legislation.
The Environmental Agreement contains the rule (Article 2) which obliges enterprises and organizations, military units, other legal entities and individuals, carrying out their activities at Baikonur facilities, to comply with the environmental rules of the RoK legislation applicable at the time of entering into the Lease Agreement. However, there is an issue whether the new environmental legislation applies to the relations arising at Baikonur with respect to environmental protections and use of natural resources? Based on the above provision, it should not apply, as under the legislation of Kazakhstan the regulatory legal act does not apply to the relations that have arisen before its introduction[5]. This part of the provision of the Environmental Agreement is not likely to be perfect because as of the signing of this international legal act (1997) in Kazakhstan and in Russia many public relations in the area of environmental protection and use of natural resources were regulated under the environmental legislation based on the Soviet legal concept which did not stipulate many key environmental principles specific for market economy. In my perspective the current Kazakh environmental legislation is more advanced and market oriented and contains such key principles as maintaining the sustainable development of the country[6], ecosystematic approach to the regulation of environmental relations, payments for using natural resources, access to environmental information, presumption of scheduled business environmental impact etc. In addition, the current environmental legislation of Kazakhstan integrated many rules of international environmental law, rules and standards which could effectively regulate environmental relations and rehabilitation.
However this so-called gap adds up another provision of the Environmental Agreement, specifically the provision contained in paragraph two of Article 2 stating that the issues not covered by the requirements of the RoK legislation are subject to the environmental legislation of the Russian Federation upon agreement with the RoK Ministry of Ecology and Biological Resources[7]. This provision stipulates exterritorial effect of the rules of the RF environmental legislation to regulate environmental relations, if these relations are not regulated by the Kazakhstani legislation. In this case we note the unity of direct and extraterritorial[8] effect of the environmental rules of two countries in connection with the operation of the Baikonur facilities
The Environmental Agreement puts on the Russian side a number of obligations most important of which are: use of natural resources in compliance with the environmental safety standards, interdepartmental environmental monitoring and control over Baikonur facilities, cleaning of booster impact areas from metal parts, ecological certification of the launch-site facilities, radiation emergency response, environmental; audit. Fulfillment of these and other commitments, as stated above, is provided for by the legislation of Kazakhstan and Russia in compliance the principle of unity of direct and exterritorial effect of environmental rules.
Harking back to the Lease Agreement reveals that it contains a material rule that regulates indemnity relations, in connection with the damage caused by space activities. As per this issue both sides (Kazakhstan and Russia) agreed on the applicability to these relations of the Convention on International Liability for Damage Caused by Space Objects signed by the member states on March 29, 1972. Given that the 1972 Convention was ratified by both states, its provisions directly apply to indemnity relations, including adverse environmental impact. However if we take into account that other states which have the status of law-makers are also parties to this Convention with respect to this international legal act, then it is possible to recognize the principle of exterritorial effect of the rules of the 1972 Convention with respect to indemnity for damages caused by the operation of the Baikonur facilities.
In this connection it should be noted that the doctrines of direct and exterritorial effect if the legal rules are differently interpreted by lawyers. The existing monistic and dualistic concepts in the international law consider the relationship of areas and methods of international and national law differently. Further, a number of advocates of the monistic concept insists on the unity of legal systems and treats the international law as a part of the national law, which is attainable, for example, subject to compliance with certain procedures of ratification by the specific state of an international legal act. The Kazakhstani legal scholars to a greater extent stick to this position, and therefore, based on such position on the relationship of the international and national law, one can speak about the unity of direct and exterritorial effect of environmental provisions on the relations arising in connection with the operation of Baikonur launch site. The advocates of the monistic concept are based on the supremacy of the national law or the supremacy of the international law. Such position makes it difficult to identify the process of interrelation of the rules of the international legal acts and the national law in the regulation of specific public relations.
From the dualistic perspectives, the international and national law differs from each other only by the scope of regulated relations. In their opinion, the national law applies only on the territory of one state, and it is indisputable, while the international law regulates relations arising only between/among the states. The last conclusion is not indisputable because in practice international legal acts regulate not only relations among/between the states but also the relations arising between the entities of these states. Thus, for example, within the context of the issue in question as per Baikonur facilities, such entities can be both Russian and Kazakhstani: the Russian Aviation and Space Agency, Baikonur Administration, the National Aerospace Agency of the Republic of Kazakhstan etc. Therefore the dualistic position on the interrelation of the international and national law practically includes the principle of unity of direct and exterritorial effect of legal rules, and it is difficult to agree.
In conclusion I would like to note that the necessity of international cooperation in environmental protection is determined by increasing interdependence of the countries. The destruction of the ozone layer, atmospheric air and sea pollution, nuclear test consequences, space and military activities cover not only the states where adverse environmental activities become possible, but the whole world community. Therefore currently the states arrange interrelations whether under UNO auspices or on a bilateral basis in order to protect the environment of human beings, vegetation and wildlife. The basis for such interrelation is a number of international principles of human activity in the area of the use of natural resources recognized by the international community. Partially they are contained in the international agreements and acts, regulatory documents of the international organizations and are summarized in the resolutions of the most significant international forums fully or partially devoted to environmental protection and regulation of cooperation of states and nations in this area. Therefore the principle of unity of direct and exterritorial effect of the legal rules should be recognized as one of the principles providing environmental safety.
[1] Baikonur is an international space harbor, a space launch site with the entire necessary infrastructure located in the territory of the Kyzyl-Orda Oblast of the Republic of Kazakhstan and leased by the Russian Federation. The Kazakh word «Baikonur» means land characterized by intense brown color or place rich with brown soil. [2] See web-site: www.baikonur-info.ru [3] The Republic of Kazakhstan joined the Convention under the RoK Law dated May 15, 1997 No. 107-I. The Russian Federation recognized the rules of this Convention as applicable in accordance with the RSFSR Supreme Soviet Resolution of December 12, 1991 No. 2014-I «On Ratifying the Agreement Establishing the Commonwealth of Independent States». Earlier this Convention was ratified by the Decree of the USSR Supreme Soviet Presidium dated September 28, 1973 No. 4855-VIII. There is no RF legal act ratifying this Convention or on joining it. [4]Environmental (legal) rules are the rules of legal acts regulating the relations in the sphere of protection, rehabilitation and conservation of the environment, use and replenishment of natural resources in the course of business and other activities related to the use of natural resources and adverse environmental impact.
[5] Clause 1 of Article 37 of the RoK Law «On Regulatory Legal Acts» dated March 24, 1998 No. 213-I. [6] Sustainable development means such development of the community, when the needs of the current generation are satisfied without prejudice to future generations; this is a managed balanced development of the community without destruction of its natural basis and ensuring continuous progress of the human civilization. The term «sustainable development» was introduced by the International Commission for Environment and Development (Brundland Commission, UNO, 1987). [7] Currently this authority is named the RoK Ministry of Environmental Protection. [8] Exterritorial effect of the legal rules means application of the legal acts of the legislator beyond the area of its jurisdiction.
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