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Zh.S.Yelyubayev Ж.С.Елюбаев
Issues of Legal Framework of the State Environmental Policy
Identification and development of environmental policy is a rather new issue both for the theory and practice of designing different models of social and economic development. In many respects it is based on the recent perception of the danger of escalation of environmental challenges. Currently the environmental factor begins to play a more significant role in the economic development and improvement of the quality of life. It became more prominent with respect to individual countries and the whole planet as quickly aggravating global environmental issues. The world witnesses a man-induced type of economic development involving active exploitation of subsoil, depletion and degradation of natural resources, increasing environmental pollution. In one form or another, the thesis of the escalating threat of environmental collapse in the development and existence of the mankind itself became a general place in the documents of the international organizations, and in the strategies and programs of many countries. The Republic of Kazakhstan is not an exception in this process. The years of independence became for Kazakhstan a period of formation and establishment of quite a new state system of environmental protection and management, and subsoil use. To a certain extent it made it easier to formulate and consistently implement the state policy of environmental protection and rational use of natural resources. However, unfortunately, given that for many decades there existed and is existing the system of subsoil use oriented on raw material production with extremely high man-caused environmental loads, cardinal environmental improvement has not been achieved yet, and it is characterized by degradation of natural systems leading to the destabilization of the biosphere and inability to sustain the quality of the environment necessary for vital life sustenance. The legal aspects of the state policy in the sphere of environmental protection were first included in the Concept of Environmental Security approved by the Resolution of the President of the Republic of Kazakhstan (1996)[2], where environmental priorities of the transition period were addressed, in particular environmental issues of privatization of industrial facilities, the issues of establishing the environmental legislative framework, state review and control, economic mechanisms of subsoil use, and environmental monitoring. The social context has undergone essential changes since the adoption of this Concept in Kazakhstan. Strategic documents were developed, environmental legal framework was established and a number of international conventions on environmental protection were been signed, there was established the environmental management system. Thus in 1997 there were adopted the following laws: «On Environmental Protection»[3], «On Specially Protected Natural Territories»[4], «On Environmental Expert Review»[5], in 1998 - «On the Radiation Safety of the Population»[6], in 2002 - «On the Protection of the Atmospheric Air»[7]. For the purpose of arrangement and rational use of the nature, there were adopted by the RoK President decrees having the force of laws «On Subsoil and Subsoil Use»[8] and «On Oil»[9], in 2003 the Forest Code[10], the Water Code[11] and the Land Code[12] were adopted; there were also drafted and approved all necessary subordinate legal acts. The RoK Environmental Code was adopted in 2007. In order to improve the legislation there was set a course for its approximation with the legislation of the developed countries and the implementation of international standards. To date the Republic of Kazakhstan signed, ratified several tens of international conventions and designed national action plans for their implementation. There has been improved the system of environmental expert review, granting permissions and environmental monitoring and control. However, Kazakhstan retains the status of the country with a vulnerable territory and resolved environmental issues. In 2003, the RoK President approved the new Concept of Environmental Safety of the Republic of Kazakhstan for 2004-2015[13], which envisages a conceptual revision, update and expansion of the objectives ensuring environmental safety in the contemporary context subject to the strategic priorities of the country. The concept contains proposals for the solution of outstanding objectives, including: Ø Ensuring faster development of scientific research related to the issues of environmental safety and sustainable nature use, including fundamental studies; Ø Introduction of a uniform environmental monitoring system; Ø Environmental zoning and special mapping of the territory of the Republic of Kazakhstan. The global experience shows that a successful solution of environmental issues and prevention from environmental disasters is the ecologization of the economic and social system of any state. Environmental safety as a constituent part of national security is a condition precedent to sustainable development and a basis for preservation of natural systems and retaining the relevant quality of the environment. Therefore the new Concept of Environmental Safety was designed based on the priorities of the Strategy of Political and Economic Development «Kazakhstan-2030»[14] and subject to the principles of the Rio de Janeiro Declaration[15], and the resolutions of the World Summit on Sustainable Development, Johannesburg[16]. The need to ensure an appropriate level of environmental safety and to achieve standard environmental status suggested a staged implementation of the provisions of this Concept: Ø Stage one (2004-2007) - reduction of environmental pollution and development of an action plan to stabilize pollution (this objective has not been accomplished, and the environmental situation became aggravated); Ø Stage two (2008-2010) - stabilization of the environmental quality indices and improvement of environmental requirements to nature use (this objective was partially accomplished, though the results of this work did not impact the state of environmental conditions); Ø Stage three (2011-2015) - improvement of the quality of the environment and achievement of a favorable level of устойчивого развития общества (будем надеяться, что на этом этапе, что-то изменится в лучшую сторону). What issues does the Republic of Kazakhstan identify as related to ensuring environmental safety? These are global challenges. Ø Change of climate due to the «greenhouse effect», which is a global concern, and a significant potential threat to the environment. Ø Destruction of the ozone layer of the Earth, which is a potential threat to human health, animals, vegetation and microorganisms. Thus, since 1973 observations show that the thickness of the ozone layer above Kazakhstan decreased by 5-7%. Ø The disappearance of certain species of plants and animals results in the loss of genetic diversity and causes changes to ecosystems. The main reason for real threat of the loss of biodiversity is the destruction and degradation of habitats, in particular deforestation, soil erosion, pollution of onshore and offshore water bodies, and excessive procurement of specific plants and animals. Ø Land desertification and degradation is a real threat to Kazakhstan, which can become a transboundary issue as the result of dust and salt storms and airborne pollution of large areas. The greater part of Kazakhstan is located in the arid zone and about 66% of its territory is exposed to desertification. Based on preliminary assessment, the damages from the degradation of grazing lands, profit lost due to the erosion of arable lands, secondary salinization and other reasons comprise approximately KZT300 billion (over $2 billion). National issues: Ø Existing zones of ecological disaster. Thus, currently the Aral and Semipalatinsk regions are announced the zones of ecological disaster, where destruction of natural ecological systems and degradation of flora and fauna occurred; and significant harm was caused to the health of the population due to adverse environmental conditions. Ø Issues related to the plans of intensive development of the Caspian Sea shelf resources, because intensive development of hydrocarbon resources by the Caspian states would increase an impact on the offshore and coastline ecosystems. Given the indefinite status of the sea, cross-border environmental threats become important. Ø Depletion and pollution of water resources. Kazakhstan is classified as a country with a great deficit of water resources. Currently water resources are being intensively polluted by mining, metallurgical and chemical operations, municipal services of the cities and present a real environmental threat. The most polluted rivers are Irtysh, Ural, Nura, Syr-Darya, Ili or Balkhash Lake. Underground water as the main source of potable water supply is also exposed to pollution. In addition, the existing imbalance between man-caused loads on water bodies and their regenerative capacity caused environmental hazard to became a characteristic of almost all river basins; while insufficient financing of water facilities caused improper (in places unsafe) technical condition of water facilities and escalation of water supply challenges. Ø Historical pollution, including recently abandoned facilities: petroleum and hydrogeological wells, shafts, mines (including those with radioactive wastes), tailing and waste water ponds. Ø Impact of the test sites of military space complexes. Currently four military test sites and Baikonur complex are operating in the territory of the Republic of Kazakhstan. The real threat to the environment is presented by falling and landed rocket fragments, highly toxic fuel spillage and other factors of adverse impact on the environment and local population. Launching of booster rockets from Baikonur launch site is supported by the impact area of over 12 million hectares. In these conditions environmental impact assessment is critical for finding a solution to the issue of prevention and mitigation of man-caused impact in the areas of manufacture, testing, storage and operation of space facilities, military equipment and systems, industrial entities, dislocation of military units and troops engaged in aerospace activities. Local environmental issues: atmospheric air pollution; radioactive contamination; biological and chemical contamination; industrial and domestic wastes; emergency situation of natural and man-caused character. What issues regarding legal support to the state environmental policy in Kazakhstan exist? It should be noted that in many respects these issues are similar to the existing global issues which, in my opinion, have been well systematized by the Russian scientist M.M. Brinchuk in one of his latest works[17]. First - the absence or deficit of political will to consistently and effectively conduct environmental protection. As the author points out, actual environmental protection is replaced with statements about its importance. As the result, all most significant regulatory requirements in this sphere remain outstanding. Secondly - the imperfect and frequently amended legislation. Regardless of the adoption of the Environmental Code and other regulatory legal acts, the former have serious defects: abundance of declarative provisions and inefficient regulation of environmental standardization process, licensing, certification, audit, monitoring of subsoil users. Frequent changes to the legislation do not facilitate the formation of the uniform law enforcement practices. There are a lot of examples where subordinate legal acts contradict laws and international legal acts. Thirdly - drawbacks in the arrangement of the state management of subsoil use and protection. There is no optimal system of special government authorities designated to ensure compliance with the environmental legislation. For example, in Kazakhstan the issues of environmental monitoring are within the jurisdiction of several authorities competing to collect environmental payments, fines and other exactions from subsoil users in order to replenish ever deficit-ridden budget, and they forget to perform their key function. Fourthly - a high level of corruption of the government, which is so characteristic for our country, causing alleviation of regulatory functions of the state, and abuse of powers by the officials who issue environmental permissions, certificates, concur with different standards and other documents, and frustrate key functions of the state. Fifthly - the absence of legally established economic mechanisms of encouragement of subsoil users to carry out nature protection and introduce ecologically safe processes and technologies, etc. Sixthly - the legislation of Kazakhstan does not stipulate the establishment and operation of the National Environmental Fund to be formed from obligatory environmental fees, fines and amounts collected for environmental damages. In my perspective, the solution of these and many other secondary issues of legal support to resolve environmental challenges at the national level as well as international cooperation, especially between the neighboring countries, can significantly mitigate environmental loads and streamline the subsoil use process.
[1] © All exclusive rights to this work reserved by Zh.S. Yelyubayev. [2] Instruction of the President of the Republic of Kazakhstan of April 30, 1996 No. 2967 «On Concepts of Public and Environmental Safety of the Republic of Kazakhstan» (repealed by the Decree of the RoK President of December 3, 2003 No. 1241. [3] Law of the Republic of Kazakhstan «On the Environmental Protection» of July 15, 1997 No. 161-I (superseded by the RoK Environmental Code of January 9, 2007 No. 212-III). [4] Law of the Republic of Kazakhstan «On Specially Protected Natural Territories» of July 7, 2006 No. 175-III. [5] Law of the Republic of Kazakhstan «On the Environmental Expert Review» of March 18, 1997 No. 85-I (superseded by the RoK Environmental Code of January 9, 2007 No. 212-III). [6] Law of the Republic of Kazakhstan «On the Radiation Safety of the Population» of April 23, 1998 No. 219-I. [7] Law of the Republic of Kazakhstan «On the Protection of the Atmospheric Air» of March 11, 2002 No. 302-II (superseded by the RoK Environmental Code of January 9, 2007 No. 212-III). [8] Law of the Republic of Kazakhstan «On Subsoil and Subsoil Use» of January 27, 1996 No. 2828 (repealed by the RoK Law of June 24, 2010 No. 291-IV). [9] Law of the Republic of Kazakhstan «On Oil» of June 28, 1995 No. 2350 (repealed by the RoK Law of June 24, 2010 No. 291-IV). [10] The Forest Code of the Republic of Kazakhstan of July 8, 2003 No. 477-II. [11] The Water Code of the Republic of Kazakhstan of July 9, 2003 No. 481-II. [12] The Land Code of the Republic of Kazakhstan of July 9, 2003 No. 481-II. [13] Decree of the President of Kazakhstan of December 3, 2003 No. 1241 «On the Concept of Environmental Safety of the Republic of Kazakhstan for 2004-2015». [14] The Address of the President of the country to the people of Kazakhstan «Kazakhstan - 2030: Prosperity, Security and Improvement of Wealth of All Citizens of Kazakhstan» (Astana, October 10. 1997). [15] Rio de Janeiro Declaration On Environment and Development, June 14, 1992. [16] World Summit on Sustainable Development «Rio+10», August 26 - September 4, 2002, Johannesburg, SAR. [17] M.M. Brinchuk, Environmental Law: Manual, 4th edition. //M. 2010, pages 32-39.
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