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74development of Russian legislation
protection of ecjlogical rights of citizens in globalization context
N.A. Geit
Ph.D., Associate Professor at the Chair of Corporate and Entrepreneurial Law, Speransky Law Department, Russian Presidential Academy of National Economy and Civil Service
Summary: The paper discusses the legal aspects of human and civil rights
to a healthy environment and the impact of globalization on the environmental situation in the country. The analysis of the environmental legislation of the Russian Federation and of the need to address gaps in it and to amend it in order to ensure citizens' rights for compensation in the case of man-made and other environmental disasters.
Keywords: ecology, ecological rights, human rights, environmental law,
environmental disaster, information about the risks, the European Court
Approximately one sixth of the territory of Russia with its population of more than 60 million people is considered to be environmentally neglected1. Decreasing healthy population and increasing the death rate owing to environmental despoliation present a direct threat to the society and the state. By the 1970’s environmental challenges appeared to have come to climax, which
1 Mironov 0.0. Ekologija i narushenija prav cheloveka [Ecology and Violation of Human Rights: Special Report of the Human Rights Commissioner in the Russian Federation]. Moscow: Jurisprudentsija, 2002. P. 8.
2 Percival R. V., Schroeder Cr.H., Miller A.S., Leape J.P. Environmental Regulation: Law, Science, and Policy //Law & Business, 2009.
brought about common comprehension that environmental abuse and further environmental pollution will cause disastrous consequences2. Accordingly there were taken complex measures on national and international level, being intended to save nature from undergoing degradation.
On June, 14, 1992 in Rio de Janeiro the UN Conference on Environment and Development adopted the Rio Declaration on Environment and Development, which recognized the right of man to lead a healthy and productive life in suit with nature. In accordance with this Declaration, states are obliged to frame national legislation that would stipulate amenability for environmental offence, liability to compensate an environmental damage, and procedures aimed at realization of human rights in the field of environment. To declare the right of people to live in healthy environment means to acknowledge a possibility for everyone to live in such a state of the Earth biosphere, which secures maximum permissible level of physical and psychological health, and also to apply such a system of remedies that would eliminate global threats to biosphere resulted from human activities.
Today the term “ecological rights” is used as a collective description of all the rights that citizens and public associations can exercise according to such laws of the Russian Federation as “On Environment Protection”, “On Environmental Assessment”, and a number of other regulatory enactments3. Ecological rights of man are understood as established and secured by legislation rights of individuums, which would allow them to satisfy their various needs arising from their interaction with natural environment. This term has also become part of common use vocabulary and a popular term in practice of ecology movement.
The right to enabling environment forms the basis of ecological rights of citizens and by today’s standards is regarded as one of fundamental natural rights of man, as it provides for their right to life (Article 3 of Universal Declaration of Human Rights).
Current legal practice of foreign countries shows that ecological rights of citizens are violated not only by organizations that directly cause harm, but also by state agencies that do not publish information on environmental situation and cancel programs aimed at environmental improvements4.
Ecological rights are supranational. One nation alone cannot deal with environmental issues due to vulnerability and quick changeability of ecological situation. This fact accounts for increasing significance of international legal
3 For example, relevant sections in textbooks: Ecological Rights of Citizens - see: Bogoljubov S.A. Ekologicheskoje pravo [Environmental Law]. Moscow: Norma, 2001. P. 92 - 156, Dubovik O.L. Ekologicheskoje pravo [Environmental Law]. Moscow: Prospect, 2003. P. 160 - 165;
Environmental Legal Status of the Man - see: Brinchuk M.M. Ekologicheskoje pravo
[Environmental Law]. Moscow: Jurist, 2003. P. 116 - 141; Right to enabling environment -see: Krassov 0.1. Ekologicheskoje pravo [Environmental Law]. Moscow: Norma, 2004. P. 75 - 95.
4 Environmental Law: Seminar for Judges. Washington (DC). Oct. 19-20, 2000.
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regulation of relationships in the field of environment protection and environmental control. One of possible means to ensure consistent progression in minimizing ecological remedial risks, in our opinion, is to conduct systematic conceptional research on the given range of problems by combined effort of political scientists, ecologist lawyers and scholars from all over the world.
As a moderate contribution into this prospective theoretical construct we offer our definition of the notion “ecological rights risks”. We suggest that they should be regarded as actions performed by public authorities and civil society institutes, when taken with the purpose of defending ecological rights of man and citizen and leading to overcoming an uncertainty in situations, which are related to complex forces that determine environmental conditions and have an effect on achieving specific ecological rights objectives.
Taking into consideration importance of informing citizens about environmental hazards, we should note a great legal tenor of those stipulations in the Constitution of the Russian Federation that rest responsibility on officials who hold back facts and circumstances, threatening human life and health (Part 3, Article 41)5. Several legislative acts stipulate the civil right to have information related to environmental conditions. Thus, citizens have a right to be aware of factors that can influence their health (Article 19 of “Fundamental Principles of Legislation of the Russian Federation on Health Care for Citizens”). Article 8 of the Federal Law “On Sanitation and Epidemiological Well-Being of Citizens” makes provisions for citizens to ask for information about sanitary and epidemiological situation, environmental conditions, quality and safety of technical and industrial goods, food products, commodities used to satisfy private and domestic needs, and on what potential hazards for human health any work or service can have. According to the Russian Federation legislation, citizens have the right to make inquiries about such data from governmental authorities, local authorities, agencies and institutions of state Sanitation and Epidemiological Service of the Russian Federation and from legal entities. Citizens have the right to be informed about hazards they can be subjected to if they stay in certain places in the territory of the country, and about necessary safety measures (Article 18 of the Federal Law “On Protection of Population and Territories from Emergencies Generated by Natural or Technogenic Factors”).
Problems related to protecting ecological interests of citizens can be solved in laws and regulations devoted to tackling issues of environmentally neglected zones, which would cover the procedure of identifying such a zone, and of assigning it a legal status of a zone of ecological disorder. They will also state a complex of standards designed to provide for preferential socio-economic conditions for citizens who live in such zones.
5 Sobranije Aktov Prezidenta i Pravilelstva Rossijskoj Federatsii (SAPP RF) [Collection of Acts Ordained by President and the Government of the Russian Federation]. 1993. No 29. Article 2675
In view of essential legal features of ecological damage caused to the population health, it is necessary to introduce a number of amendments into ecological, civil, civil procedure and other legislation. These amendments should aim at leveling-off the procedural status of injured citizens and the party guilty of causing the damage. It should be done in order to enable practical implementation of already existing norms of overall character.
According to Russian Federation legislation, observance of the principle of access to information, for example in the area of waste management, is guaranteed by provision for a fundamental ecological right stated by Article 42 of the Constitution, namely the right to gain reliable information on environmental conditions. Violation of this right entails administration of justice in the form of administrative and criminal responsibility.
The Constitution of Russia provides for system of legal guarantees of ecological rights of citizens; it also determines the legal procedures, within the framework of which protection of such rights can be carried out. Such legal procedures are as follows:
judicial defense of rights and freedoms;
right to appeal in court against decisions and actions (or inaction) of governmental authorities, local authorities and other entities;
right to be reimbursed by the state for the damage afflicted with unlawful actions (or inaction) of governmental authorities or other entities;
right of access to interstate agencies designed to protect human rights and freedoms, when all existent domestic means of legal defense have been exhausted.
Therefore, if all judicial instances of the Russian Federation dismissed the plaintiff’s action or suit, their complaint can be directed to international agencies, for example, to the UN Human Rights Committee created in accordance with the International Covenant on Civil and Political Rights. In this case in order to defend the violated right the complaint in question is brought to the notice of the state concerned, and the state is obligated within six months to submit to the Committee arguments in writing or any other statements that interpret the matter and inform on the actions taken. The Committee is not authorized to render binding decisions, but it publishes annual reports on complaints that were processed within the past year.
European Court of Human Rights acts as an agency for international protection of civil rights and freedoms (the Court was founded in 1959 as provided by the European Convention on Protection of Human Rights and Fundamental Freedoms). Jurisdiction of this Court embraces cases related to interpretation and application of the Convention, but only for the states that recognized it as mandatory, Russia being among them.
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Both states and physical entities have a right to bring before the Court an application (petition); however, first the application must get through European Commission on Human Rights, and its purpose is “to reach amicable settlement”.
In cases when entrenchment on rights and freedoms is accompanied by causing harm to man, the constitutional guarantee implies not only restoration of the violated rights, but also compensation of the caused material and moral harm (Article 53 of the Constitution). Today it is difficult to assess the harm caused to people by industrial accidents resulted from usage of nuclear power and by nuclear tests (military training area in Semipalatinsk; Chernobyl; wreckage of the submarine Komsomolets, the industrial accident at the factory of the production association Mayak in Chelyabinsk, the accident in Arzamas). A person subjected to an environmental offence (radiation exposure) needs social protection, including that provided by officially stipulating his right to have social assistance.
The state allows for certain budgetary funds not only to ensure recovery from accident consequences, but also for life-time assistance for the people who suffered from those consequences. The assistance is not always fully correlated with the amount of damage caused to health and property of the person, and to the inflicted moral injury. A number of scientific research institutes, including Russian Academy of Sciences and Russian Academy of Medical Sciences, conducted and coordinated investigations aimed at developing methods of determining the amount of caused harm.
Russia applies experience gained by a number of foreign countries in the area of social protection of their citizens subjected to radiation exposure. It has proved to be very fruitful to work within framework based on agreements between Russia and the USA, France, CIS countries. Much has also been achieved after implementation of the International Chernobyl Project, which was carried out under the aegis of IAEA in partnership with about 200 independent scientists from 23 countries and international organisations.
According to Paragraph 2 of Article 55 of the Constitution, in the Russian Federation there must not be ordained laws that cancel or derogate rights and liberties of man and citizen. At the same time the Constitution allows for possible restrictions of rights and liberties of person and citizen, but they can be imposed only for the purposes strictly specified by the Constitution and only to extent the situation proves it to be necessary; such restrictions are not identic with cancellation or denial of rights and liberties.
In the socialistic period of our state external pomposity of environmental policy would conceal tragic events and their consequences, since information about them was suppressed by official data sources. In the beginning of 1980’s there
6 Poljanskaja G.N. Zakony ob Okhrane Prirody - Novaja Forma Pririodookhrannogo Zakonodatelstva [Nature Conservation Laws - New Form of Environmental Legislation] // Pravovyje Voprosy Okhrany Prirody v SSSR [Legal Matters of Nature Preservation in the USSR]. Moscow, 1976
were made decisions that initiated performance of ecologically destructive projects, such as water diversion of some northern rivers into the river basin of the Volga, cultivation of raw lands in the south-eastern part of Russia, etc.
During socialist period academic lawyers already noted that frequently environmental laws “are insufficiently correlated with the rest of effective legislation, are practically unsupported with sublegislative legal norms, and statutory regulations of the Soviet Union do not correlate appropriately with those of Soviet Socialist Republics”6.
When establishing structures that were to manage and monitor use of natural resources and environmental activity, it was considered first and foremost to adhere tenaciously to current political and ideological approaches, as well as to certain individual views of high ranking officials on how to administer nature and science. To illustrate this it is enough to cite Joseph Stalin, who used to be referred as “the leader of all nations”. Stalin declared, for example, that in foreseeable phase of history natural resources were inexhaustible7. A. Golichenkov concludes that throughout socialist period there was persistently developed a system of agencies performing ecological functions that was built upon the so called departmental approach, i.e. an agency in charge of protecting environment was a department of the branch that potentially could cause harm to nature. This approach appeared to blossom despite evident invalidity of the postulate “to protect natural resources should those who use them”8.
Apart from drastic loopholes in legislation, one basic fault inherent in the Russian legislation of socialist period was absence of a “workable” mechanism, which would enable legislative execution. Low efficiency of legislation, exhaustion of environmental assets, constant degradation in qualitative aspects of environmental conditions - these and other factors called for introducing a fresh approach to legal regulation in the area of the ecosystem exploitation and environment protection9.
Taking into consideration that Russia entered the WTO, social and economic relations are being transformed, diverse forms of ownership of environmental assets are introduced, it proves to be a pressing objective to change regulatory enactments dealing with defining and protecting ecological rights of man and citizen. These changes are an integral part of the current process of developing a progressive environmental legislation and its harmonization with advanced international and national legislation.
7 Stalin J.V. O Dialekticheskom i Istoricheskom Materializme [On Dialectical and Historical Materialism]. Moscow, 1953.
8 Golichenko A.K. Ekologicheskij Kontrol: Teorija i Praktika Pravovogo Regulirovanija [Environmental Supervision: Theory and Practice of Legal Regulation]. Doctor in Law Thesis. Moscow, 1992.
9 Sobranije Postanovlenij Pravilelstva SSSR (SP SSSR) [Collection of Regulations of the Government of the USSR]. 1973. No 2. Article 6; Sobranije Postanovlenij Pravilelstva SSSR (SP SSSR) [Collection of Regulations of the Government of the USSR]. 1979. No. Article 6; Sobranije Postanovlenij Pravilelstva SSSR (SP SSSR) [Collection of Regulations of the Government of the USSR]. 1988. No 6. Article 14
