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A UNIVERSUM:
№2(101)_экономика и юриспруденция_февраль. 2023 г.
THEORY AND HISTORY OF LAW AND THE STATE, THE HISTORY OF THE DOCTRINE OF LAW AND THE STATE
DOI - 10.32743/UniLaw.2023.101.2.14890
ARAL ECOLOGICAL CATASTROPHE: HISTORICAL AND MODERN SOURCES
OF PUBLIC ENVIRONMENTAL LAW
Karligash Umarova
Doctor of juridical sciences, professor of Karakalpak State University, Republic Uzbekistan, Nukus E-mail: karligash1255@mail. ru
АРАЛЬСКАЯ ЭКОЛОГИЧЕСКАЯ КАТАСТРОФА: ИСТОРИЧЕСКИЕ И СОВРЕМЕННЫЕ ИСТОЧНИКИ ПУБЛИЧНОГО ЭКОЛОГИЧЕСКОГО ПРАВА
Умарова Карлыгаш Умаровна
д-р юрид. наук, профессор КГУ, Республика Узбекистан, г. Нукус E-mail: karligash1255@mail. ru
ABSTRACT
The implementation of the joint decisions of the Central Committee of the CPSU and the government of the Soviet authorities of the 19th and the mid of 20th centuries led to an environmental disaster in the Aral Sea region (Uzbekistan and Karakalpakstan), which is still remains an environmental disaster zone. These decisions on the rotation of the Amu Darya River for the purpose of developing desert lands were not studied from the perspective of public sources of environmental law or from the perspective of law and lawmaking, and they were not the subject of a comparative assessment with modern sources in terms of preserving legal traditions. The historical sources of public environmental law are studied by the methods of historical, comparatively functional analysis, as a result of an interdisciplinary approach - conclusions are drawn on the addition of the history and theory of the state and law of Uzbekistan, individual civil and environmental law institutions.
АННОТАЦИЯ
Реализация совместных решений ЦК КПСС и правительства советских властей XIX и середины XX вв. привела к экологической катастрофе в Приаралье (Узбекистан и Каракалпакстан), которая до сих пор остается зоной экологического бедствия. Эти решения по повороту реки Амударья в целях освоения пустынных земель не изучались ни с позиций общедоступных источников экологического права, ни с позиций права и правотворчества, не являлись предметом сравнительной оценки с современными источниками с точки зрения сохранения правовых традиций. Исторические источники публичного экологического права изучаются методами исторического, сравнительно-функционального анализа, в результате междисциплинарного подхода - делаются выводы по дополнению истории и теории государства и права Узбекистана, отдельных гражданских и экологических юридических институтов.
Keywords: Aral Sea region as a zone of environmental disaster, public sources of environmental law, subjects of public law, sources of law, lawmaking.
Ключевые слова: регион Аральского моря как зона экологического бедствия, публичные источники экологического права, субъекты публичного права, источники права, правотворчество.
On the topic of historical sources of law, there are many fundamental works, scientific monographs of famous scientists of the world, which retain their value and develop in modern times, answering questions of the nature of sources of public law in general and environmental law in particular [8, р.228].
The joint decisions of the party and the government as sources of law were studied by Russian scholars, lawyers[1, р.9], but in the history and theory of state
and law Of Uzbekistan, resolutions of the Party and USSR Government (period: 1939-1979), the execution of which led to the Aral Sea tragedy and the resolutions adopted in the Republic of Uzbekistan in recent years, have not been investigated from the perspective of the law-making tradition.
Problems of compensation for environmental harm was considered in the light of the theory of M.M. Brinchuk (2009; 2016), N.V. Danilova (2014),
Библиографическое описание: Umarova K. ARAL ECOLOGICAL CATASTROPHE: HISTORICAL AND MODERN SOURCES OF PUBLIC ENVIRONMENTAL LAW // Universum: экономика и юриспруденция : электрон. научн. журн. 2023. 2(101). URL: https://7universum.com/ru/economy/archive/item/14890
V.V. Nikishin (2009), and A.V. Kodolova (2014), who examined the problems of legal regulation of the elimination of past environmental damage.
The individual institutes of civil law and environmental law of Uzbekistan do not define the regulatory basis for liability for environmental damage. So, M.M. Brinchuk in his basic research emphasizes that the selection on the basis of scientific analysis of a new type of legal responsibility requires certain actions in science and practice. First of all, this concerns the recognition in the general theory of law of environmental legal responsibility as an independent type of legal responsibility. The past and existing water management system and intensive nature management have led to the formation of a number of common environmental problems in the territory of Central Asian countries, one of which is the definition of an interstate agreement on the distribution of Amu Darya waters.
The conceptual basis of the research. For this research, the starting concepts were: theories of sources of law; the conceptual framework for environmental damage compensation; questions about the interstate solution of the distribution of water of the Amu Darya River.
The value of the research of N.M.Korkunov that, on the basis of the specific features of various forms of sources of law, it is possible, in turn, to judge the nature and character of the law itself to this day. In his lectures on the general theory of law, he, in particular, noted that "definitions of legal norms by their source are more objective than definitions by content". They do not pass into a judgment of the law, do not indicate what the law should be, but mean to indicate the distinguishing feature of the existing legal norms [3, p.115].
The research of the sources of law cannot but be based on the theory of G.F. Shershenevich, who noteds that definition "source of law" also means: a) a force, that create law; b) materials "laid the foundation for a particular legislation"; c) historical monuments, "which once had the meaning of existing law"; d) tools for discovery the existing law. The allocation of "a force, that create law" focuses on a subjective source, since public law cannot coexist without subjective law, which was determined "from the filing" of B.N. Chicherin ("Philosophy of Law" (1900)) "as a moral opportunity, or, otherwise, as legal freedom to do or demand something" and objective law was seen as "the very law that defines this freedom" [9, p. 698].
According to A. Ya. Vyshinsky (1938), the joint decisions of the party and the government of the Soviet era are traditionally correctly evaluated as a rule, from narrowly normative-positivist positions based on the definition of the concept of law. The sources of Soviet law carried the prevailing ideology and were limited by it. As V.S. Neresyants noted, "in fact, illegal legal power-command rules ("norms") are issued here as "law". The legal-positivist construct is used to create the appearance of the existence of law where it does not and cannot exist" [5, p.168].
The historical experience of Soviet law-making predetermines that modern law-making should not be the result of only the activities of public entities. In this regard,
ignoring the inclusion of legal doctrine in legal formation deprives the source of the law of its scientific nature.
It is known that C. von Savigny distinguished two types of activities of the legal class: material or formal, and purely scientific, as it brings to consciousness and scientifically sets forth the law in general, whatever way it arises. Thanks to the scientific nature attached to the material, which seeks to reveal its inner unity and give it a finished form, a new organic life arises that works creatively on the material itself, so that science as such becomes a new kind of creation of law. Through this scientific process, the law is facilitated and guaranteed dominance over living conditions [5, p.168].
The main objectives of the study are the analysis and evaluation of 20 joint decisions of the party and government of the USSR 1939 - 1979 as sources of public law with the purpose of their subsequent comparison with the law-making mechanism in the recent history of Uzbekistan, which predetermined by the study of the practical problems of the legal definition of "liability for past environmental damage (LPED)". There are many theories of scientists from Russia and other countries about environmental legal responsibility, which are not only scientific, but practical in the context of the Aral Sea problem under consideration.
First and foremost author have in mind the justification of environmental responsibility as an independent type of legal responsibility as it reflected in writings of B.V. Erofeev, V.V. Petrov (in the 1970-1980), M.M. Brinchuk, (2009), on the point of view of S.A. Bogolyubov (2011), who considers unacceptable recognition of the independence of environmental and legal responsibility. In a pro-civic concept, harm caused by an environmental offense is considered as a kind of civil law damage caused by a violation of environmental law. The author was a supporter of the opinion of I.Yu.Rebikov (2011) [7, p.128] since the compensation for environmental harm should come from the obligation due to harm and is part of this institution of civil law.
The theories noted above can be the subject of scientific discussions to improve the development of the concept of environmental responsibility for creating an environmental disaster zone, as the Aral Sea region. Such a scientific concept should predetermine changes, additions or novels to the current legislation.
This study cannot cover all the problematic aspects of the ecological crisis and the issues of their solution, but, as it seems to the author, putting the ecological problems of the Aral Sea region to a constitutional control solution and taking these problems to the priority level by media will contribute to the effective implementation of environmental laws and the satisfaction of the majority of the population to have a systematic reliable information about the state of the environment.
Statement of problems. The degradation of the Aral Sea ecosystem, water problems, and the deterioration of sanitary conditions have been recognized since 1975 and remains a zone of environmental disaster, undergoing climatic, water, sanitary and epidemiological difficulties. The global environmental impact and the importance of their elimination in the legal perspective
puts forward new requirements for the implementation of the state's environmental policy, parliamentary control over the implementation of environmental laws, their analytical coverage in the media, and the availability of justice for environmental damage compensation. The practical solution to these problems, in opinion the author, should be preceded by scientific justification, since, as can be seen from historical chronology, the Aral Sea problem has been discussed at different levels and in different scientific areas, however, historical and modern sources of environmental law, issues of determining modern environmental law-making, and compensation for environmental damage remain unexplored in civil law, problems of the implementation of environmental laws of the country and interstate approvals for distribution waters of the Amu Darya.
Methods. Decisions of the party and government of the USSR 1939 - 1979 and normative legal acts of the 20th and 21st centuries adopted in the Republic of Uzbekistan are analyzed as sources of public environmental law, methods of historical - comparative, functional and comparative analysis, comparison of documents from 1939-1970 with official documents adopted since 1991 until in modern times. Since the questions relate to historical and modern sources of law, special issues of civil liability for environmental damage, implementation of environmental laws and international treaties, an interdisciplinary approach is required. The results of the interdisciplinary method will be relevant decisions regarding a particular discipline.
Discussion ("No documents, no history"). Let us
briefly review the chronological history of the regulations, the execution of which led to environmental disaster. It is important for assessing lawmaking in this historical period of development. The study of these historical documents are based on fundamental scientific concepts about historical sources and their significance, since it is indisputable that the historical legal source in the form and characteristics of the information contained in it carries an epistemological function in scientific research.
From the first years of Soviet power in 1918, V.I. Lenin signed a decree of the Sovnarkom "On the allocation of 50 million rubles for irrigation work in Turkestan and on the organization of these works" [6]. The First World War, and later the Civil War, led to the fact that from 1913 to 1923 the total area of irrigated land reduced by two times (to 2.3 million hectares). However, by 1928 in the region the area of irrigated land had grown to the level of 1913, by 1932 this area already amounted to 5.4 million hectares, and by 1937 it had increased by another 0.5 million hectares. Thus, by the mid-1930s, the task of ensuring the independence of the USSR from cotton imports was solved (the area of cotton cultivation has increased 1.7 times since the beginning of the 20th century) [2, p.57].
In 1939, the Resolution of the Central Committee of the All-Union Communist Party and the Council of People's Commissars of the USSR "On measures to further increase cotton production in Uzbekistan" was adopted. In December 1939, in connection with the
февраль, 2023 г.
15 th anniversary of the republic's foundation, the Uzbek SSR was awarded the Order of Lenin for successes in the development of agriculture, especially cotton growing, and at the same time, in December 1939, the Great Ferghana Canal was put into operation, which was created by the popular construction sites. This has improved water supply over an area of over 500 thousand ha of irrigated land.
The cotton harvest in 1940 exceeded 2.7 times the harvest of 1913 and amounted to 62% of cotton received in the USSR. In 1945, another resolution of the USSR Council of People's Commissars "On Measures for the Restoration and Further Development of Cotton Production in Uzbekistan" was issued, which was promulgated by a special resolution of the USSR Council of People's Commissars "On a Plan and Measures for the Restoration and Further Promotion of Cotton Production in Uzbekistan" for the Period 1946-1953.
Decree of the Council of Ministers of the USSR of April 30, 1951 No. 1426 "On measures to ensure the implementation by the Ministry of Cotton Production of the USSR, the Ministry of Agriculture of the USSR and the Ministry of State Farms of the USSR of design, survey and construction works on irrigation and irrigation of lands in connection with the construction of the Main Turkmen Canal of Amu Darya-Krasnovodsk" and Resolution of the Central Committee of the CPSU and the Council of Ministers of the USSR "On the Further Development of Cotton Production in the Uzbek SSR in 1954-1958" testifies to the consistency of party management of the economy and confirms the legitimacy of these management decisions. In theoretical terms, these historical sources of Soviet law are sources of public environmental law, an example of the concentration in one document of a political, ideological and legal installation, which in reality had the force of law and was binding.
So, the above-mentioned sources of public environmental law (and noted in the article) were: 1) a system of normative regulation of environmental and economic relations by political entities; 2) the highest party-state demand, characterized by a system of power and submission.
Joint decisions of the party and government performed the role of normative legal rules for performers at all levels of their implementation.
In terms of form and content, all the above-mentioned decisions were a "guide to action" for both government executives and the masses of the population. One of the explanations for the "effectiveness of the implementation" of decisions in the specifics of the public consciousness of the masses in the first years of Soviet power, in which the expected destruction of the powers that be and the achievement of equality in the new world triumphed.
The names of the resolutions indicate of the subjects of power that initiated the document, the tasks set for the decision, the systematic sequence of requirements and individual changes in names in connection with the change of the main public subjects of power.
The creation of any source presented as a process in which, according to the concept of I.D. Kovalchenko, the object (reality) and the subject (the creator of the source) interact.
Modern lawmaking. At present, various measures eliminating and mitigating the consequences of the environmental crisis in the Aral Sea region (Karakalpak-stan), mainly in sphere of legal regulation. Sources of law adopted in the post-Soviet space testify to objective and subjective factors determining lawmaking. These are ecosystem degradation, water problems, and the need for international cooperation on environmental issues. To regulate environmental relations, a huge array of legislative acts of domestic, interstate and international nature and action has been adopted. Almost annually, regulatory legal acts of public environmental law are adopted, which change, supplement existing ones or are adopted as new, and this lawmaking comes from public authorities, which indicates the preservation and modification of legal traditions.
In the opinion of G.J. Berman, with whom it is entirely possible to agree, law is not only a set of certain rules, but it is also those people who issue laws, make court decisions, and administer justice. It is the subject of law that, through its actions, forms legal reality. The subjective factor contributing to the creation of new sources of law comes to the fore in connection with a change in the leader of the state. Presidential decrees become a source of public environmental law in Uzbekistan, the implementation of international treaty norms in national legislation.
The ideocratic context of law-making in the USSR, about which indicats Kodan S.V. [4, p.616] it is preserved to a certain extent as the power of ideas of public subjects of law and acts as the basis for lawmaking in modern times. Since 2017, in Uzbekistan, with the advent of the second President of Uzbekistan, Sh.M. Mirziyoyev, reforms have begun in the state-legal, economic, social spheres, and large-scale measures are taken to mitigate the consequences of the Aral disaster. The practical solution of environmental problems are accompanied by the adoption of regulatory acts of various kinds.
A comparison of historical joint decisions with the regulatory legal acts of the present shows: public-law nature, state-government law-making, since, among the well-known types of sources of law (legal custom, normative act, judicial precedent, contract, general principles, ideas and doctrines, religious texts) in Uzbekistan, regulatory acts of public entities, norms of international law implemented in the laws of the country, dictated by the importance of international legal relations and treaties on environmental issues, the domestic political situation and the change in the vector of political and legal development. It is important to note that the influence of scientific ideas and doctrines on lawmaking is limited to putting draft laws for discussion, the results of which can be taken into account, but it is difficult to evaluate them as a verified promising scientific and theoretical doctrine.
In order to successfully identify and eliminate legislative errors, a scientific theory is necessary, since ideas and doctrines accumulate in themselves the ideas that are right and fair that have developed in society. The doctrine as a legal source should influence the creation and execution of positive law.
In general, all subjects of legislative initiative in the legal stage of work are responsible for information reliability, scientific reasoning, predictability, and continuity in preserving the national regulatory experience as provided for in the "Concept for the improvement of standard-setting activities".
In the 21st century, "scientific law", submitted by K. Savigny as "Law, initially the common heritage of the whole people, as a result of increasingly branching relations in everyday life, will also develop into a "separate", which can no longer be covered by knowledge evenly distributed among the people. In this case, a special class of experts in law will be formed, which, being an integral part of the people, will be a representative of the community in this field of knowledge. The law, realized by this estate, will only be a continuation and a peculiar development of popular law" [8, p.228].
The documents of the environmental policy and development strategy of Uzbekistan identify priority actions, indicate the amount of financial resources necessary to achieve the goals from the budget, and envisages the adoption of regulatory legal acts.
Decrees of the President of the country become a source for the development of Action Programs in the form of a "road map", which provides for changes, additions to existing laws, as well as the adoption of new laws.
Acceleration of the implementation of effective international standards in the Uzbek environmental legislation contributes to the application of existing foreign experience in creating a system of liability for past environmental damage (PED) and mechanisms for its guaranteed elimination. For example, under the United States Law on the Integrated Response, Compensation, and Liability for Environmental Damage, the threat to public health and the environment posed by contaminated hazardous substances sites is eliminated at the expense of the parties responsible for the pollution.
The expiration of the statute of limitation for environmental damage caused by the Aral Sea region according to the above decrees determines the succession of state responsibility. In the laws of Uzbekistan it is practically important to establish: the priority of addressing the elimination of PED in the Aral Sea region, the practical need for funding research on both past environmental damage and contemporary environmental conditions, the most efficient use of funds allocated s and the resources allocated for improving the quality of life of the people of the Aral Sea region.
The results of scientific research on the accumulated environmental damage (which have not yet been carried out) and its consequences are important for ensuring the quality of adopted regulatory acts. The historical experience of the lawmaking of public entities indicates that such lawmaking becomes the forerunner of lawmaking.
The need for society in the legal regulation of environmental relations may remain unsatisfied due to subjective discretion and scientifically erroneous justification of the legal act.
One of the decisions was adopted by the law of the Republic of Uzbekistan "On science and scientific activity" of October 29, 2019 prescribing the right of the Cabinet of Ministers of the Republic of Uzbekistan:
to ensure the implementation of the main directions of the field of science and scientific activity; approve priority areas for the development of science and technology; determine the procedure for financing the field of science and scientific activity, as well as the procedure for organizing funds with the participation of the state.
This task should become a priority for the Research Institute of Ecology and Environmental Protection under the State Committee of the Republic of Uzbekistan on Ecology and Environmental Protection (transformed by the Decree of the President of the country of April 21, 2017), the decisions of which are binding on the bodies of state and economic administration, officials and citizens, and such strengthening of institutional powers can ensure the inclusion of environmental issues among the priority ones.
Conclusion
The analysis of historical and modern sources of public environmental law in Uzbekistan allows the author to draw conclusions, first of all, of a scientific and theoretical plan. In the history and theory of state and law, joint decisions of the party and the government of the Soviet period, on land development, increasing productivity and others, should be evaluated as indicating not only the characteristic type of political regime, but also the specifics of law formation and lawmaking, the dominance of state economic interests neglect of environmental safety and human rights to a favorable environment, as a historical example of "ignorant" lawmaking and forced "legitimacy." Public entities of the highest authorities and administrations at this moment are the most active initiators of the creation of normative acts for the environmental and economic sphere, and at the same time it remains problematic to hold public hearings, discuss projects to analyze the benefits, costs and expected results, assess their impact on the rights and interests of individuals and legal entities, social sphere, entrepreneurial activity, environment.
One of the legal ways to solve the problem may be the addition of paragraph 15 of Article 78 of the Constitution of Uzbekistan with the words "and environmental security issues" and the amendment of the Uzbek law "On parliamentary control" (April 11, 2016). The law "On parliamentary control of the Republic of Uzbekistan" needs to be amended: - Article 5, supplementing it with
3 new paragraph as follows: - hearing the report of the Cabinet of Ministers and the State Committee on Ecology on the progress in implementing measures to eliminate, restore and compensate environmental damage in the ecological disaster zone; - Supplement 5 article 10 with a paragraph - hearing the report of the Chairman of the Central Bank of the Republic and the Audit Chamber on the targeted allocation of financial resources for the elimination and restoration, compensation for environmental harm contributes to bringing environmental safety to the constitutional control level; contributes to the effective implementation of environmental policy.
Solving environmental problems with the participation of the general public is impossible without information on the state of the environment. Information on the natural environment and the state of its individual components is provided for in general in national legislation by granting the right to receive information without defining the obligation to inform the Aral Sea environment. Realizing the rights of journalists [10] to gain access to documents, materials and information from competent sources is difficult, due to the lack of a "competent", scientifically reasoned answer.
The media in this moment today could not bring the environmental problem and control over the implementation of laws to priority status. The solution to the persistent declarative nature of justice for compensation for environmental harm is possible if Uzbekistan joins the Aarhus Convention and assumes obligations to implement its provisions.
A comparative analysis of the Uzbek legislation, its material and procedural rules, with the relevant provisions of the Aarhus Convention shows that there are no procedural obstacles to the activities of the courts, since the Law on Nature Protection (Article 52) gives legal entities and individuals the right to appeal to the court about cessation of environmentally harmful activities that cause harm to the environment, health, property of people and the national economy [11], but the lack of standards for determining the damage done in Civil law and environmental law institutes, problems of legal ecological culture of citizens, burden of appealing to the courts, the size of the state duty that is impossible for many citizens, the lack of judicial precedents for compensation for health damage - the reasons for this situation.
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