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