Àronov Ansagan Kuspanovich
Undergraduate faculty of law of KazNU by name
Al-Farabi, Almaty, Kazakhstan
The basis of the legal protection of
the environment in subsoil use in
Kazakhstan
In this scientific article the main emphasis to the problems of
environmental protection, nature conservation and respect for the natural
resources in subsoil use in Kazakhstan.
Discusses different definitions and regulations regarding the term
"environment", "protection of nature", "sustainable
use of natural resources." It also gives examples of judgments, concepts
of many scientists in the field of legal literature on the definition of the
protection of nature. Environmental protection is defined as a system of state
and public measures to ensure the coordinated interaction between society and
the state, conservation and management of the use of natural resources,
improving environmental conditions. The article describes the overall content,
direction, and projects to protect the environment. Familiarize normative legal
acts in the environment of the Republic of Kazakhstan.
The general environmental situation in the Republic of Kazakhstan and
reasonable obstacles, problems and shortcomings.
Describes the failure of some state action aimed at protecting the
environment and conserving natural resources, as well as malicious action to
nature due to non-conservation requirements of mining companies.
The environment is a major
natural site for mankind. Can not be considered separately from natural
forests, land, mineral resources, and the world of animals that are part of
nature. They are all interrelated with the environment and participate in the
implementation of ecological functions.
In the life of every individual and society environment has environmental,
social, economic and political role. One of the most important guarantees for
the development of the state, improve public health and the preservation of
natural resources is considered to be the protection and preservation of the
environment from pollution and destruction.
In dictionaries, the
following definitions are given for an explanation of "environment",
"environment - natural and human environment for human habitation; set of
biotic, abiotic and anthropogenic environments affecting together and chat to
people and their economy; setting or context in which people, animals or other
objects exist, operate.
Considering the above mentioned
definition, the environment combines all the natural resources and facilities,
and is an essential natural complex for the state and for the future
generation.
To
date, scientific judgment of foreign and domestic scientists about the concept
of environmental protection and rational use of natural resources vary
considerably.
At
the beginning of XX century before the appearance of special regulations the
concept of "environmental protection", in practice, widespread
concept of "protection of nature." An example of this is the International congress on nature protection, which was
held in Bern in November 1913. Since then, the widely used concept of
"protection of nature" and "protecting the environment"[1].
The
increase in the volume of consumer of natural resources has led to the second
form the concept of "environmental protection". At that time, the
notion of "rational use of natural resources." After the introduction
of a new concept in the definition of "protection of nature", the
concept of "protection of nature" replenished from a scientific point
of view.
Following
the concept of "protection of nature" was supplemented with the words
"increase and rebuild natural resources"[2].
Many
scholars in the legal literature tried to define the concept of environmental
protection. In many cases, these definitions are not of the same. For example,
according to the scientist N.A. Gladkov, protection of nature - a system of government
and public activities aimed at preserving the environment from pollution and
natural resource management, and protection of natural resources and reconstruction of material and cultural needs of
present and future generations of mankind[1].
In
the judgment of the scientist F.H. Adihanova, protection of nature - the exception of
individual sections of the nature of the economic circulation, prevent and stop
harmful actions on human nature, the rational use, increase and restoration of
natural resources[3].
In
50-60 years of XX century were born the concept of "the protection and
improvement of the human environment." Object of legal protection has
become the man himself, his life and genetic future. From this point applies
the concept of "environmental protection".
According
to O.S. Kolbasova, soviet essence of the "protection of nature" refers
to the activities of environmental protection, protection of natural reserves,
covers the entire side of the natural resources and nature as a habitat. In
addition to his scientific work, "The Nature Conservancy under soviet
law," argued that in order to restore legal protection of natural
resources and protection of the need to find a legitimate reason to conditions
and in using them. The main aim is to ensure the protection of a favorable
environment for human life, preservation, and improvement recovery of natural resources as well as ensuring
the development of the productive forces of society and culture[4].
In
the definition of the essence of environmental protection and any other
feedback. For example, Y.S. Shemshuchenko argued that the protection of the
environment - a system of government and public actions aimed at sustainable
use of natural resources and protection of the natural complex, based on the
satisfaction of material and spiritual needs of man through the prism
ceaselessly economy development of the state[5]. According to the scientist
V.L. Muntian, the concept of "protection of nature" seems element
essence of rational use of nature. The subject of regulation of legal
protection of nature is the control in the use of nature, the responsibility
for violation of the requirements for the protection of nature and the use of
responsible action for offenses.
According
to home scientist S.B. Baysalov, legal protection of nature - a set of
environmental stability and the rule of law and rules to ensure the rational
use of natural resources[6].
Also
on A.E. Erenov concept of "nature conservation" - a system of measures,
providing a favorable environment for mankind, which meet the material and
cultural needs of the soviet people and the economy develops[7].
A
similar example cited scientist A.S. Stamkulov. He joined the definition of "protection
of nature" concept of "prosperity and preservation of productive
environment and a healthy lifestyle for mankind"[8].
Over
time, the concept of "protection of nature" was replaced by the
concept of "environmental protection". Concepts as "protection
of nature", "environmental protection", "protection of
natural resources" integrated concept of "environmental
protection".
One
of the founders of the forest law V.F. Gorbova considered legal
protection of the environment sustainable use of the environment and the system
of legal measures laid down by law for encharging criminal, disciplinary and
material responsibility of violators of the environment[9].
According to P. Staynova, legal protection of the environment - is the content of
the environment at an early stage, in other words, not to allow its destruction[10].
V.V. Petrov, referring to the definition of the
protection of the land, gives a definition of the environment: "The legal
protection of the earth, as a method of protecting the environment, means
fixing are mandatory and possible actions in the law concerning the
environment. Violation of these obligations, actions lead to liability under
the law[11].
S.D.
Bekisheva considers improper use of the term "environmental
protection". According to her, instead of the term is necessary to use the
term "environmental protection". Because the general concept that
combines concepts such as "nature", "environment" is
"the protection of the environment." In addition scientist believes
that the forms of nature protection activities need to add prevention of the
harmful effects of human development environment. The main difference from the
concept of conservation of natural objects is to identify as active action[12].
Judgment
of scientists concerning the definition of environmental protection in its
true, and all of them clarifies the definition of the concepts of
"protection of nature", "efficient and rational use of natural
resources", "responsibility", "public and social activities
for the community and future generations."
In the
environmental law the concept of
"environmental protection" is defined as the preservation and
restoration of the environment, warning of harmful factors of economic and
other activities to the environment and the system of state and public measures
to address their consequences [13].
The object of protection of the environment as a whole seems to
environment. The subject of environmental protection are the state, private and
legal persons, public associations. Being a nature user all of the above
subjects - not obligatory condition. Since, according to article 38 of the Constitution of the Republic of
Kazakhstan "citizen of the Republic of Kazakhstan must protect the natural
resources and preserve nature"[14].
Taking
all of the above management judgment may be given the following items
definition: protection of the environment - a system of state and public
measures to ensure the coherent interaction between society and the state,
conservation and sustainable use of natural resources and the improvement of
environmental conditions. The obligation to protect the environment rests with
the state and its people.
Protecting
the environment - this is one of the main functions of the state. Public
functions in the field of the environment are closely related to public
administration. Among scholars there is no consensus regarding governance. Some
scientists believe that the concept of "governance" is a specific
activity of state bodies. Others, in turn, is associated with the activities of
government in society. Thus it is possible to define governance to protect the
environment: public administration in protecting the environment - is the
executive and the powers of government agencies, environmental security during interactivity between society and the environment,
the implementation of environmental rights and responsibilities of public
entities.
Protecting
the environment is manifested in several forms:
- conservation
of natural objects. Accordingly, the protection of natural objects is realized
by a conservative direction. To ensure their safety, and carried out the
principle of "non-use", such as the structure of nature reserves;
- recovery natural objects - it is
reconstitution of natural properties, such as planting
and cultivation of forests, giving the possibility of increasing wildlife, soil
fertilizer;
- rational
use of natural resources - appropriate and effective use of useful properties
of natural objects;
- improvement
of the natural properties of the environment;
The
content of the environment can be considered in two aspects:
1)
through a set of measures;
2)
through the prism of the rights and obligations of subjects engaged in
environmental protection.
By
series of measures to protect the environment include:
1)
measures to ensure environmental safety;
2)
improving the quality properties of the environment by improving the components
of the environment;
3) reconstitution and rational use of natural resources,
conservation of biological diversity, ensuring the stability and improvement of
the ecological system;
4)
prevention of environmental pollution;
5)
improvement of methods and technologies aimed at the implementation of
international standards in the management of environmental protection and
rational use of nature and environmental protection;
6)
the development of production control;
7)
an information system in the field of environmental protection and access to
environmental information to each person;
8)
agitation environmental science and education for sustainable development;
It
is also possible the implementation of investment projects and environmental
measures to protect the environment[15].
From the first days of independence, Kazakhstan has implemented a plan of
action throughout the country, aimed at environmental protection, rational use
and conservation of natural resources. More precisely, on the basis of
international environmental conventions in 1997 adopted three fundamental legal
acts: "On Protection of Environment of the Republic of Kazakhstan",
"On Environmental Impact Assessment" and "On Specially Protected
Natural Areas." Over time in this field was adopted over three hundred
legal acts. However, the above said regulations have not been able to meet the
goals. Therefore, the state had to adopt new legal instruments to protect the
environment and conserve natural resources.
Therefore
adopted special and codified laws relating to the protection and use of natural
resources. These include laws such as the "Land Code", "Water
Code", "Forest Code", "On Subsoil and Subsoil Use" and
others. In order to improve the legislation in the country was undertaken
implementation of international standards and approach to environmental
legislation in developed countries. On this basis, for the protection of the
environment and natural resource management have been signed 19 international
conventions and prepared national implementation plans of these conventions[16].
However,
the measures undertaken by the State to protect the environment and preserve natural
resources, to no avail.
For
example, in Kazakhstan, one third of hazardous waste produced in the atmosphere
refers to the Karaganda region. The most polluted cities are considered the
Karaganda region Balkhash, Zhezkazgan and Temirtau. Through the above discharged
into the atmosphere cities about 80% of hazardous waste. According to
information provided by the Regional Directorate for Environmental Protection
in 2007 enterprise "Balkhash" and
JSC "Arcelor Mittal Temirtau" released into the atmosphere of 597,000
tons and about 315,000 tons of hazardous waste, respectively.
Every year, for each
citizen of oblast impact
200 kg of different chemical mixtures. With the deterioration of the ecological
status of the region increased mortality, morbidity and disability. According
to official data of the Ministry of Environment in 2009 in the country has
accumulated about 22 billion tons of waste. Every year in the natural
environment produced 1 million industrial waste, 20 million cubic meters of
domestic and 150 million toxic waste. In addition about 237 million tons of
radioactive waste are now engaged in mining production, reconnoitering uranium
[17].
In 2013, the
minister of the environment N. Ashimov
reported on the performance of the work on the strategic plan. Work was carried
out in the direction of improving the stability and quality of the environment,
as well as the improvement of ecological monitoring and
hydrometeorology . According to the minister, last year the amount of
waste compared to the year before was reduced by 1.5%. In 2013, the number of
draining polluted substances was 2.8 million
tons. Compared with the previous year is lower by 1.75%.
Suitability
of waste is 21%. Have also been strengthened control of major natural resources.
In order to comply with environmental legislation have been carried out over 10
thousand inspections identified more than 8 thousand crimes. The audit company
"Karashyganak Petroleum BV" in order to compensate for the damage
caused was fined a total of 1.9 billion tenge for the voluntary removal of
waste into the environment. These measures have an impact on reducing the
amount of waste.
Through
the application of enterprises in the oil sector programs suitability of
natural and associated gas has been reduced emissions on the environment. It were brought to a good result indicators on the
suitability of waste oil in such regions as Atyrau, Mangyshlak, west Kazakhstan
and Kyzylorda regions [18].
Last
year, the number of payments for the issue of the environment was 63.6 billion tenge. Number amounts for environmental emissions totaled 48.6
billion. Penalties, claims and compensation - 15.0 bln. tenge. In 2010, the
financing plan of measures for the protection of nature was 25.5 billion. tenge.
In fact, measures to protect nature were funded in the amount of 21.9 billion. Tenge[19].
Today, the
environmental code of the Republic of Kazakhstan is a national legal act, which
regulates the environmental legal and environmental protection. The Code aims
to regulate relations in the sphere of natural resources and environmental
protection, restoration and preservation of the implementation and other
activities related to the impact on the environment and use of natural
resources within the territory of the Republic of Kazakhstan.
Intensive development of production, increase in consumer needs of society,
the excessive use of natural resources leads to increased production of waste,
the destruction, pollution and depletion of natural resources, air basins in
the major cities and industrial centers. Therefore, environmental pollution and problems for the
protection of one of the main problems of the Republic of Kazakhstan.
First,
we must learn from what is necessary to protect the environment. As stated
above, the main problem of pollution in the country is directly linked to the
performance of subsoil users. The concept of ecological security of the
Republic of Kazakhstan for 2014-2015 years shares on the radioactive contamination, bacteriological and chemical
species.
Radioactive
waste is significantly threaten the ecological security of Kazakhstan, and can
share their main sources into four types:
- extraction
of uranium and overwork waste production enterprises;
- contaminated territories later testing of
atomic weapons;
- oil and waste oil devices.
Kazakhstan
has six major uranium geological regions,
small deposits and uranium testing wells.
30% of the territory of Kazakhstan meets the natural radioactive gas -
radon, which greatly endangers human health. The use of the contaminated water
to drinking water and economic needs very dangerous.
In
enterprises of Kazakhstan there were over 50 thousand processed sources ion
rays. As a result of radiation research were destroyed over 700 harmful
sources, including 16 number of threatened species for human life.
In Kazakhstan among
chemical things permanent organic pollutants are particularly dangerous. In
order to reduce the permanent polluted substances in 2001, Kazakhstan signed the "Stockholm Convention on
persistent organic pollutants." Constant polluted
substances frequently used in the energy sector, in
places oil and chemical plants.
On the territory of the republic of concentrated over 20 billion tons of
industrial waste, of which 6.7 billion tons –toxin[19].
Now, in order to reduce the number of industrial and consumer waste in the
territory of the republic must adopt a program for the effective use of special
waste from the state. Also need to increase the number of specialized
organizations for the disposal of hazardous waste.
In
some companies, subsoil possible emergence of other compositions based on
minerals. In many cases, mining companies are considering these compounds
either as waste, but as a product. For example, when these products are transported to other
countries for processing, the authority in the field of environmental
protection in many cases, considering them as a waste, and thus limits their
transportation is fined. Accordingly, in order to
avoid fines and compensation to mining companies, despite the danger of waste,
leave them on the territory of the republic and in no hurry to waste. And so to
reduce the number of waste and harmful factors affecting human health and the
environment, the state needs to temporarily exempt from legal liability for
subsoil users in time to make arrangements for export, recycling and disposal
of these wastes. However, exemption from legal liability should be held in a
certain period before the destruction of a sufficient quantity of hazardous
waste. It is also necessary to adopt a law on the management of special and
industrial waste.
Protecting the environment - it is not only the duty of the state, but also a
direct duty of nature and society members. The proof of the above is the norm
of Article 38 of the Constitution of the Republic of Kazakhstan, adopted in
1995 August 30th. According to become a citizen of the Republic of Kazakhstan
must preserve nature and protect natural values. [20].
In
conclusion, it should be noted that in our country measures to protect the
environment should be carried out together with measures to protect other
natural objects, and should be a top priority of the state.
References:
1. Gladkov, N.A., Miheev,
A.V., Galushin, V.M.(1975). Ohrana prirody. Ì.,16-17.
2. Kazantsev,
N.D. (1967). Pravovaia ohrana prirody SSR. Ì., 13-14.
3. Adihanov, F.H. (1974).
Pravovaia ohrana prirody v SSSR. Tomsk.,11-13.
4. Kolbasov,
O.S.(1961). Ohrana prirody po sovetskomu zakonodatelstvu.Ì., 9-11.
5.
Shemshuchenko, U.S.(
1976). Organizatsionnye-pravovye
voprosy ohrany okruzhaiushei sredy v SSSR. Kiev., 21-24.
6. Muntian,
A.L.(1975).
Pravovye problemy ratsionalnogo ispolzovaniia prirody. Harkov,. 23-25.
7. Erenov,
À.Å. (1977). Poniatie pravovoi ohrany prirody i problema sovershenstvovania
prirodoohranitelnogo zakonodatelstva. Pravovaia ohrana prirody Kazakhskoi SSR. Alma-Ata,. 20-21.
8. Stamkulov, A.S., Stamkulova
G.A.(2004). Zemelnoe pravo Respubliki
Kazakhstan (Obshaia chast).Almaty: «Zan adebieti», 334.
9. Gladkov, N.A., Miheev,
A.V., Galushin, V.M.(1975). Ohrana
prirody. Ì.,16-17.
10. Stainov, P.(1974). Pravovye voprosy zashity prirody. Ì., 22-24.
11. Petrov, V.V., Petrov, V.V. (1984). Pravovaia ohrana prirody v SSSR. Ì., 32-35.
12. Bekisheva, S.D. (2009). Ohrana okruzhaiushei prirodnoi sredy: poniatie i vzaimosviaz s
obespecheniem ecologicheskoi bezopasnosti.Vestnik KazNU.- ¹2(50)., 93-98.
13. Ecologicheskoi kodeks
Respubliki Kazakhstan 2007 (¹212-III). Almaty: Jurist,164.
14. Ioffe, Î.S.(1949). Pravootnoshenie po grazhdanskomu
pravu. gl.VI (object prava). Leningrad,.81-97.
15. Stamkulov, À.S., Stamkulova. G.A.(2004). Zemelnoe pravo Respubliki Kazakhstan (Obshaia chast). Almaty: «Zan adebieti», 212.
16. Salieva, R.N.
(2002). Ob osnovnyh napravleniah pravovogo obespechenia ratsionalnogo ispolzovania
nedrami pri razrabotke mestorozhdenii nefti I gaza. Zakonodatelstvo i economica. ¹ 8., 87-90.
17. Dzalilova,
À. (2010). Glavnoi ecologicheskoi problemoi Kazakhstana priznano
upravlenie othodami. Spravochno-pravovaia systema. «Paragraph».,10-15.
18. Tugelbai, V. Ecoloialyk tolemder timdi zhumsaluy
tiys. Egemen Kazakhstan gazetinin saity: <http://www.egemen.kz
>
19. Iskakov,
N. V (2009) Kazakhstane ezhegodno obrazuetsia okolo 1 milliarda tonn
promyshlennyh othodov. Spravochno-pravovaia
systema. «Paragrapf».
20. Konstitutsia Respubliki Kazakhstan, st. 38 (30.08.1995)
(Parlament RK). ÎOphitsialnyi sait parlamenta PK. <http://www.parlam.kz>