On the necessity of the development of wetlands legislation for the republic of Kazakhstan

Table of contents: The Kazakh-American Free University Academic Journal №2 - 2011

Author: Gavrilova Yuliya , Kazakh-American Free University, Kazakhstan

Today wetlands are the most vulnerable ecosystems of our planet. They are running the threat of complete destruction. “This is caused by ongoing drainage, transformation, and pollution of their resources. Wetlands are subjected to intensive economic use (water withdrawal for irrigation, for everyday and industrial necessities; extraction of peat and biological resources). Rivers and lakes are subjected to massive pollution by industrial and agricultural waste waters.

Despite the fact that our country is situated in the arid part of Eurasia, the most part of the natural ecosystems is presented by wetland complexes from Caspian Sea and large lake systems to thousands of fresh and salt lakes on vast steppes. Two world flyways (Central-Asian – Indian and Siberian – East –African) meet at the Kazakhstani part of the wetlands of the Eurasian continent. Kazakhstan is the international haven at the flyways of migrating birds. The wetlands of Kazakhstan are the nesting and feeding places for the birds from West Europe, South-East Asia, Africa, and the Arctic. Kazakhstan has the most numerous populations of waterfowl in Asia – more than 130 species. Every six months more than 50 million birds migrate across Kazakhstan, twenty percent of them nest on the territory of Kazakhstan” [1, p. 3].

One of the main legal instruments directed at wetlands conservation is the Convention on Wetlands of International Importance especially as Waterfowl Habitat signed in Ramsar in 1971. Today more than 150 countries have joined the convention. The Republic of Kazakhstan also ratified the international document.

Before analyzing the wetland legislation of the Republic of Kazakhstan, it is necessary to define the notion and significance of wetlands as objects of nature-conservative relations. Article 1 of the Ramsar Convention gives the following definition - “wetlands are areas of marsh, fen, peat-land or water, whether natural or artificial, permanent or temporary, with water that is static or flowing, fresh, brackish or salt, including areas of marine water the depth of which at low tide does not exceed six metres”. As we see, wetlands include a wide range of water bodies which are difficult to define and distinguish. It is also impossible when analyzing the Water Code of the Republic of Kazakhstan. The Water Code is the main document in the sphere of water use and conservation. Similarly to the Ramsar Convention Article 1 of the Water Code of the Republic of Kazakhstan defines the “wetlands” without differentiating between “marsh”, “fen”, “peat-land”, etc.

It also should be mentioned that according to the international and national legislators the definition “wetlands” includes only the water bodies that could be considered as such without pointing out that they promote biodiversity, carry out other functions and are of preferential protection. Complex interaction of such main components as soil, water, fauna and flora is realized only due to wetlands.

“The important ecological functions of wetlands are the following: they accumulate and store fresh water; they regulate the surface flow and interflow; they keep up the groundwater level; they clear water and deter contaminant; they restore oxygen to the atmosphere; they exclude and accumulate carbon; they stabilize climatic conditions especially precipitation and temperature; they deter erosion and stabilize the position of banks and shores; they keep up biodiversity; they are the habitat of different species of plants and animals including scarce and important. The importance of wetlands for people to a considerable degree results from their ecological significance. Human beings depend on the conditions of wetlands as they are the main sources of fresh and commercially pure water supply; they determine the productivity of agricultural lands keeping up the groundwater level; they are the basis of some kinds of animal breeding (poultry farming, fur farming, haying); they supply farms with fuel, building materials, and fertilizers (wood, reed, and peat); they are the source of raw materials for different trades (fishery, fowling, and berrying); they also give opportunities for tourism and recreational use” [2].

Thereby, it is necessary to conclude that a wide range of functions and diversity of wetlands requires their gradation according to their purposes at the level of the norms of the main water legislative act. It is also necessary to define the notions and legal status of the wetland categories. The legislator is recommended to take into account the fact that wetlands may be divided according to their geographical position into marine, lake, river, and marsh lands; according to the mode of formation they may be divided into natural or artificial; according to the regulation level they may be divided into international, national or local; according to the environmental and legal status they may be divided into the natural areas of preferential protection (further NAPP) or not relating to such. According to the feeding type they are subdivided into high (precipitation), lower (from soil), and transitional; according to macro-relief they are divided into valley bogs, river marshes, hill-slope and watershed lands; according to micro-relief – into hilly, plain, and domed bogs. The list of wetlands could be continued but it should be taken into consideration that their diversity mediates and complicates the meaning of legal regulation of wetlands conservation and use filling the wetland legislation with the norms of land law, mining legislation, and faunistic law. So, being the form of surface flow, bogs are connected to ground waters. They may arise either in the areas of ground waters outlet or in the forest cutting-downs. The fact determines that they belong to different land categories: either to water or forest resources.

The practical side of the complex tangle of wetlands norms is the fact that when getting the right to use wetlands of forest resources a water consumer has to get a license for peat extraction, use of water and forest resources from the state bodies governing the land, water, forest, and mineral resources. It is necessary to mention the suggestion of Soviet, particularly Byelorussian lawyers, about the separation of a category “peat resources”. The suggestion has been realized neither in the Republic of Kazakhstan nor in the Russian Federation nor in the Republic of Belarus. Peat Bog Law holds in Sweden.

The mechanism of state administration is of great importance for wetlands conservation. Its functional basis is ensured by a number of legislative and by-law acts approved by different state bodies. These acts are also to be reviewed. Multifunctional character of wetlands determines the necessity of complex structure of state bodies governing these territories. In Kazakhstan the system of state bodies governing wetlands includes the Ministry of Agriculture, the Ministry of Environment Protection, the Ministry of Finance, the Ministry of Education and Science, the Ministry of Transport and Communications, Land Management Agency, etc. “The authorities of different state bodies concerning water sector often duplicate and supplement each other. As a result, the full responsibility of a particular state body for taking decisions concerning water sector is reduced, concrete operations are not realized or realized with delay. Departmental interests do not favor the choice of optimal decision and the mutual solution of the problems. They restrict the exchange of information and lead to interdepartmental tension” [3, p. 89].

All above-mentioned points result the conclusion that state bodies have to take legal or organizational decisions concerning wetlands in concord. In other words, the principle of close coordination must be the basis of the activity of state bodies governing wetlands. At the same time the activities of these state bodies must be open to public and closely connected to social organizations, associations and unions.

Thereupon, the question of state power transparency, i.e. accountability of state authorities to public, the participation of citizens in the democratic process, and joint decision-making, is of great relevance. When investigating the problem of informational rights as an element of public administration transparency Kazakhstani lawyer Ibragimov A.T. gives an example of the US executive authorities’ activity transparency: “in the USA there were adopted the laws on federal and local meetings open to public - “sunshine laws”.

In 1976 the Congress of the USA adopted the law “Government in the Sunshine Act”. According to it the meetings of federal executive agencies must be open to public. According to the law at the agency meeting there must be a quorum - the minimum number of officials that must be present at any of its meetings to make the proceedings of that meeting valid. According to the general statutory wording, the officials have no right “to try the cases and take the decisions in any form other than at open meetings” and further, “any part of the meeting is to be open to public” [4, p. 30].

It is thought that the US foreign experience must be taken into account by national legislator in terms of strengthening the transparency of state bodies’ activities when taking decisions in the sphere of wetlands relations regulation and in the sphere of environment protection. At the same time the bodies of state power have to inform the population about the condition and planned activity of the wetlands before taking the decision about any activities in wetland territories.

Analyzing main functions of state administration concerning wetlands the water legislator has to pay attention to the fact that planning the activity relating to wetlands use and conservation is to be based on the watershed principle - taking nature-conservative measures in the whole territory of the drainage area as wetlands get the most part of substances and energy from the whole area of it. Therefore, the legislator is recommended to work out the Wetlands Management Planning Procedure. At present the Rules of Nature Conservative Organization Management Plan Development (approved by the Order of Acting Chairman of Forestry and Hunting Committee of the Ministry of Agriculture of the Republic of Kazakhstan dated July 17, 2007) hold in Kazakhstan. At the same time “since 2006 the Wetlands Conservation Project has prepared the following documents – the Korgalzhynskiy Zapovednik Management Plan for 2007-2011 and the Procedure of the Kazakhstan NAPP Management Plan Development using foreign countries experience (Germany, India, China, Slovakia, the USA, Russia, and SAR). But despite the effectiveness of NAPP Management Plans there are still some problems in many countries and in Kazakhstan with the development and financing of the measures included in the Plan” [5].

It also should be mentioned that the Rules developed in accordance with the Law of the Republic of Kazakhstan “On Natural Areas of Preferential Protection” cover the wetlands having the status of NAPP. In Kazakhstan among 7 wetland territories, included in the List of Wetlands, 2 wetland territories in Kostanay Region – Koibagar-Tyuntyugurskaya and Kulykol-Taldykolskaya lake systems – do not have the status of NAPP. Respectively, the items of the above-mentioned subordinate act do not cover these territories. This is the oversight of the legislator.

As a result, it is supremely important to mention the necessity to work out and adopt the legislative act “On the Use and Conservation of Wetlands”. The given act might give a clear definition to the notion and types of the wetlands situated on the territory of the Republic of Kazakhstan. It also might incorporate the norms relating to the correlation between the water, land, mining, forest, international legislation and the norms of the use and conservation of wetlands.

Similarly to the Environmental Code of the Republic of Kazakhstan prescribing in Article 5 the principles of environmental legislation, the principles of legislation on conservation and use of such territories might be incorporated in the future act. On the whole, “the principles are of conceptual importance for the determination of priorities, tendencies of specific law branches development and for the understanding of the tendencies and nature of legal processes” [6, p. 9]. These principles have to ensure that the relations in the sphere of wetlands conservation and use are systematically regulated, i.e. all norms and institutions relating to the legislation, state administration, rights of property and use, economic mechanism, responsibility for the transgression of the legislation on wetlands, etc. have to regulate this sphere of legal relationship fully, logically, and structurally tied together.

Let us try to mark out the number of legislation principles concretizing our idea of the norms to be included in the future act on wetlands. The principle of sustainable use of wetlands is to be put atop. The sustainable development principle is known to be conceptually basic not only for the national but also for the international environmental law. The Seventh Goal of the UN Millennium Development Goals is to “ensure environmental sustainability of our planet and different countries. The targets and indicators of the Goal show the necessity to solve two main problems for sustainable development: to reduce the environment impact and the depletion of resources; to improve environmental conditions for human development and to reduce environmental threats for human safety, health and living” [7, p. 40].

In the “Kazakhstan’s Strategy of Joining the World’s 50 Most Competitive Countries: Kazakhstan is on the Threshold of a Major Breakthrough in Its Development” the Head of the state puts the task to have created by 2010 the main environmental standards of sustainable development of the society. To reach the goal the Decree of the President of the Republic of Kazakhstan # 216 dated November 14, 2006 approved the Conception of Kazakhstan’s Transition to Sustainable Development (further Conception). The Conception determines the vision of principles, goal, targets, and mechanisms of sustainable development in all spheres. The economic, environmental, social, and political factors of development are to be considered as an integrated process aimed at the increase of life quality in Kazakhstan.

According to Article 5 of the Environmental Code of the Republic of Kazakhstan (2007) sustainable development of the Republic of Kazakhstan is the fundamental principle of current environmental legislation of the Republic of Kazakhstan.

Article 4 of the head normative act of the Republic of Kazakhstan regulating relations in the sphere of environment conservation, use and restoration of natural resources in the exercise of economic and other activities describes environmental bases of the sustainable development of the Republic of Kazakhstan. Here belong: ensure healthy and satisfactory environment; conserve environment and biodiversity; ensure and realize the right of the Republic of Kazakhstan to exploit natural resources; fair satisfy the needs of the current and future generations; develop sustainable models of production and consumption; conform environment norms to the conditions of social and economic development taking into account the environmental conditions; observe the right to environmental information access and public participation in solving the problems of environment conservation and sustainable development; ensure publicity to the measures taken to conserve environment; global partnership for the purpose of conservation and restoration of healthy state and integrity of the Earth’s ecosystem; ensure the development of international legislation relating to the responsibility for environmental damage; deter and avert the transfer to other countries of any kinds of activities and substances that may cause a serious damage, and take the precautionary measures in cases of serious or irreversible damage to the environment.

The conception of sustainable development is reflected in a number of natural resources acts of the Republic of Kazakhstan. For example, according to Article 3 of the Forest Code of the Republic of Kazakhstan forest legislation is based on the forest sustainable development principle (sustainable increase of forests in the territory of the Republic of Kazakhstan). According to the part 2.3 of Article 3 of the Water Code of the Republic of Kazakhstan one of the targets of water legislation is to ensure legal basis for the development of sustainable water consumption and water resources conservation.

In spite of the wide substantial aspect of main trends of sustainable development, the environmental legislation of the Republic of Kazakhstan does not have the notion “sustainable development”. According to Professor Tonkopiy M.S., Doctor of Economy, “there are 60 definitions to the term “sustainable development” in modern literature” [8, p .5].

In the opinion of Shesteryuk A.S., the discord of definitions could be of no importance if it did not result another problem. The lack of clear differentiation between the notions “stability”, “steadiness”, “balance”, “sustainable development” and clear gradation of their conditions (i.e. static and dynamic stability, structural stability, etc.) does not allow us to ascertain the detailed criteria of stability and the methods of analysis and evaluation. Terminological disorder puts obstacles in the way of creating general picture of the state associated with the lack of crisis. Instability and non-state are turned out to be ascertained more clear than their alternatives [9, p.22].

Coming back to the subject of our research it is necessary to point out that under the conditions of degradation, dehydration and littering of the wetlands the principle of sustainable development of these territories is of great importance. As we have already mentioned, the given areas form the climate and environment of the region and fulfill economic and social functions. The main condition of the wetlands sustainable development is the status of preferential protection irrespective of the List of the Ramsar Convention. The boundaries of NAPP must be broadened on the basis of the natural and functional evaluation of the territories.

Wetlands management is also to be based on the principle of appropriate combination of conservative measures and rational use of NAPP with the positive human attitude to wetlands. Unfortunately, the wetlands in Kazakhstan cannot be the pride of the country as opposed to the wetlands in Ireland, Scotland, and Canada. “The population, the experts, and the officials who make decisions, do not pay much attention to the wetlands as economic and esthetic resources. They have negative emotions concerning them. And the reason is the lack of information” [10]. That’s why it is necessary to active propagandizing the knowledge of wetlands functions relating to human beings and environment.

Speaking the scientific language, the society faces the problem of environmental legal awareness formation. Its elements are ecological and legal upbringing and education in the sphere of nature management and environment conservation. The content of ecological upbringing and education is to be filled with the notions of wetlands, their types, importance, the reasons of their degradation, and the means of their organizational and legal protection. It is necessary to take into account the conception of different levels of environmental legal awareness – state and everyday ones. “The most important level of environmental legal awareness is the state level, or to be more precise, the activities of the authorized bodies on lawmaking and its application. The state level of environmental legal awareness is greatly connected to the professional level. That is why it is necessary to increase professionalism and specialization when law-making and law-applying in the sphere of environment relations, to struggle against legal and environmental ignorance, legal nihilism…” [11, p. 70].

Kazakhstan legislation does not leave out these important problems. Thus, Article 184 of the Environmental Code of the Republic of Kazakhstan provides for the priority tendencies of government assistance of environmental education: improvement of academic and scientific bases of environmental education; training of skilled specialists on the sphere of environment conservation; availability of teaching aids on environmental education; assistance to the development of organizations realizing the programs and measures on environmental education in the society and in the family. However, Russian, Byelorussian, and Kazakhstan environmental and legal norms “to some extent have a definite-declarative character and do not contain the logical and harmonious system of the activity in the sphere of environmental upbringing and education. In connection with it, it is necessary to order and improve the normative-legal basis regulating environmental and educational relations” [12, p.48-49]. Concerning the subject of our research, it is recommended to include the terms of goal, targets, levels, structure, and content of the environmental legal awareness and its triune elements into the future law on wetlands.

The list of principles of wetlands conservation and use legislation may be continued with the research of state administration functions and the economic mechanism of regulation of the relations on the use of the given territories, the responsibility for the legislation infringement, international cooperation in the sphere of environment conservation, etc.

The main point is that the problem of improving the norms on wetlands conservation is connected to the unsolved problems of the environment and nature resources legislation of the Republic of Kazakhstan. Particularly, the Water Code of the Republic of Kazakhstan defining the category of glaciers and wetlands in Article 12 needs the amendments regulating the legal regime either the wetlands or the glaciers. The current complex mechanism of government control of environment conservation and state administration of nature management is characterized by a weak internal unity, the closeness for public and the lack of coordination when making decisions. In its turn the legislator is required to review the functions of nature conservation bodies of government control and to work out the effective mechanism of their interaction. The problem of enlarging the number of NAPP is still relevant: nowadays the area of NAPP in Kazakhstan is a little more than 8 % while in the world their area is 10-12 %. Finally, along with the necessity to work out and adopt the specific Law of the Republic of Kazakhstan “On the Conservation and Use of the Wetlands” there is the need to improve the norms of the environmental and legal culture and awareness of the population.

REFERENCES

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Table of contents: The Kazakh-American Free University Academic Journal №2 - 2011

  
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