Indeed, the development and adoption of qualitatively new progressive environmental legislation in the form of an Environmental Code is a new stage in the formulation of environmental legislation through its codification, which is an honorable and promising work requiring public, scientific, professional forces and resources. This document will be considered a great achievement not only for the current generation, but also for future generations.
Today the volume of legislation in the field of ecology has significantly increased, and the issue of its implementation has become topical. Taking into account a large number of normative legal acts and development of legislation in various areas of environmental protection, non-observance of the principle of lawmaking in terms of unity of the environmental system of the Republic of Tajikistan (hereinafter - RT) has created contradictions and shortcomings in environmental legislation.
The codification of legislation is a complex form of systematization, since it is both a form of systematization and a form of law-making activity. Therefore, the process of developing an Environmental Code is complex, requiring a full and comprehensive analysis of environmental legislation and environmental public relations. In order for this regulatory legal act to effectively regulate environmental relations in the future and play an effective role in their regulation, it must be developed punctually taking into account the science of environmental law, the experience of environmental legislation of foreign countries and the experience of the authorized bodies of the industry. From the experience of developing a draft Environmental Code in foreign countries, it follows that the process of preparing this document takes a long time.
The revision of environmental legislation is inevitable today, and its early implementation is of great importance for the development of the country's economy and the strengthening of the country's environmental protection policy. Therefore, the policy pursued by the government of the country is aimed at this very issue. That is why at the level of strategic planning documents of the country (concept, strategy and program) for detailed regulation of relations in the field of environmental protection the issue of development and adoption of the Environmental Code is directly provided for.
According to paragraph 5 of item 12 of the Concept of the Legal Policy of the RT for 2018-2028, approved by Decree of the President of the RT dated February 6, 2018, №1005, one of the important directions of the legal policy of the RT is to improve the legislation of the RT, taking into account the expansion of homogeneous public relations regulated by law, which should be gradually codified in the future. The purpose of codification is to eliminate inconsistencies and reduce the number of similar normative legal acts. Since the relations related to environmental protection are complex and diverse, environmental legislation consists of various legal norms.
Also, according to item 862 of the Medium-term Development Program of the RT for 2021-2025, approved by Decree of the Government of the RT dated April 30, 2021, №168, the issue of clearly defining tasks and powers, as well as ensuring coordination of actions of state bodies in the field of environmental protection through the development and adoption of the Environmental Code of the RT is envisaged.
In item 4.5. of the National Development Strategy of the RT for the period up to 2030, approved by the Resolution №636 of the Majlisi Namoyandagon of the Majlisi Oli of the RT dated December 1, 2016, provides for «the formation and dissemination of the Environmental Code, mechanisms for adaptation to climate change with the expansion of international cooperation in this direction». It should be noted that the important role of this Strategy is expressed in the fact that it is based on the need to adopt a number of new regulatory legal acts of the country, including the adoption of codification acts (i.e. codes). The above-mentioned Environmental Protection Strategy provides for the need to develop and disseminate an Environmental Code.
At the same time, it should be noted that in accordance with item 32 of the Concept of the Forecast Development of the Legislation of the RT, approved by Decree of the President of the RT dated February 19, 2011, №1021, in order to ensure environmental protection, as well as the implementation of international treaties of the RT on this issue, it was recognized necessary to develop and adopt the Environmental Code of the RT.
Such important state documents have determined the necessity, significance and position of the Environmental Code in the system of normative legal acts of the country for regulating important public relations in the field of environmental protection in the conditions of environmental crisis and development of the legislative system.
In this regard, for the full and reasonable development of the draft Environmental Code of the RT, on the basis of the order of the Chairman of the Committee on Environmental Protection under the Government of the RT dated May 12, 2023, №59, a working group was created from among specialists, scientists, veterans and employees of this Committee. Taking into account the periodic analysis and study of the country's regulatory legal acts in the field of environmental protection, the experience of foreign countries, the experience of the authorized body and similar issues, the work of the working group on the development of a comprehensive draft Environmental Code gives significant results.
It is worth noting that the Environmental Code of the RT, as a codified normative legal act of an integrated nature regulating the entire set of legal relations arising in the field of environmental protection and rational use of natural resources, should have a common part in its structure, including the main environmental legal institutions (such as accounting in the field of environmental protection, environmental monitoring, environmental assessment, environmental certification, environmental rationing, environmental audit, management in the field of environmental protection and use of natural resources, control in the field of environmental protection, environmental requirements, etc.) and have a special part, which, as an institution, includes criteria for the conservation and rational use of environmental details (land, subsoil, waters, fauna and flora, atmospheric air and the ozone layer) and natural objects (forests), natural complexes (specially protected natural areas).
Given the complex and comprehensive nature of normative-legal acts, its processing should be carried out in stages: processing and adoption of the general and special part of the Environmental Code with appropriate reworking of norms contained in the existing acts on natural resources, such as: Land, Water, Forest Codes and the Laws “On Subsoil”, “On Wildlife”, “On Protection and use of plant world”, “On Protection of atmospheric air”, “On Environmental protection”, “On Specially protected natural territories”, “On Biological safety”, “On Environmental expertise”, “On Environmental education of the population”, “On Environmental monitoring”, “On Environmental information”, “On Environmental audit”, “On Glacier protection”, “On Production and consumption waste”.
Finally, the need to develop and adopt the Environmental Code of the RT in today's conditions is related to taking into account socio-economic reasons and legal norms. The socio-economic means of adopting this Code reflect the ecological and economic situation in modern times, which consists of the following factors: the environmental crisis, which led to the rejection of the requirements of public environmental safety; the economic downturn and the aggravation of the food issue; the transition to a market economy and others.
There are several factors that necessitated the development of the draft Environmental Code in the RT:
- contradictions in legislation in the field of environmental protection are increasing every year (for example, the authorized state body carrying out environmental assessment has not yet been determined by a special decision of the Government of the Republic of Tatarstan. Although Part 2 of Article 6 of this Law establishes that the authorized state body in the field of environmental assessment is determined by the Government of the Republic of Tatarstan, that is, it follows from this standard that in this regard a special decision of the Government of the Republic of Tatarstan on the authorized state body in the field of environmental assessment is adopted. assessment, it should be accepted that such documents do not yet exist, and these issues should be considered and resolved within the framework of the draft Environmental Code, in this example such a problem);
- excessive repetition of the norms of legislation in the field of environmental protection is prevented (for example, the concept of environmental expertise is provided for both in Article 1 of the Law of the Republic of Tatarstan "On Environmental Protection" and simultaneously in Article 1 of the Law of the Republic of Tatarstan "On Environmental Expertise". Therefore, taking into account the requirements of Article 40 of the Law of the Republic of Tatarstan "In order to eliminate duplication of regulatory acts, the concept of environmental expertise has been excluded from all laws, while at the same time it has been improved and regulated in the draft Environmental Code of the Republic of Tatarstan, the licensing system and other cases have been included in almost all laws in the field of environmental protection);
- when developing the draft environmental code, a mechanism is provided for the implementation of sectoral legislation within the framework of the norms of the codification act and specific subordinate normative legal acts;
- development of the draft Environmental Code as a codifying document contributes to the compilation of normative legal acts regulating environmental protection, which is one of the important directions of the country's legal policy;
- to promote the development of the draft Environmental Code in the direction of early harmonization of legislation in the field of environmental protection of Tajikistan with international standards and international acts adopted in the field of environmental protection (for example, on July 16, 1997, Tajikistan became a full member of the UN Convention to Combat Desertification. In general, the analysis of the Convention to Combat Desertification proves that the terms "desertification", "combating desertification", "drought" are provided for "land", "land degradation", but such terms do not exist at the level of the legislation of the Republic of Tajikistan. Although these terms are used in the legislation on environmental protection, it is considered necessary to adopt, taking into account the provisions of the above-mentioned Convention, the concepts of "desertification", "combating desertification", "drought", "land", "land degradation" are provided at the level of the Environmental Code of the Republic of Tajikistan, which facilitates the implementation of this Convention. Or another example: the UN Convention on Climate Change has been adopted and regulates many legal norms related to climate change, but legal issues of climate change have not found adequate regulation in the legislation of Tajikistan in the field of environmental protection. To solve this problem, the draft Environmental Code of the Republic of Tajikistan a separate chapter is provided);
- development of the draft of this Code contributes to the regulation of new relations in the field of environmental protection, the need for regulation of which arose at the legislative level. Including environmental labeling, glacier protection, climate change, strategic environmental assessment, environmental requirements for land, water, forest and other objects;
- the development of the draft of this Code contributes to the implementation of the principle of the «green» economy and lays a practical basis for the speedy implementation of the instructions of the Strategy for the Development of the «green» economy;
- the development of the draft Environmental Code contributes to the convergence of the environmental legislation of the RT with the legislation of foreign countries and the full implementation of the guidelines of the concept, strategy and programs.
According to the preliminary analysis carried out by the members of the working group within the framework of certain types of analysis, chapters and articles of the draft Code were analyzed. Including:
1) analysis of the current situation, problems and ways to improve environmental protection laws in order to use them in the development of the draft Environmental Code;
2) monitoring of subordinate regulatory legal acts in the field of environmental protection in order to use them in the development of the draft Environmental Code;
3) analysis of indications on their concept, strategy, programs and action plan for improvement of legislation in the field of environmental protection in order to use them in the development of the draft Environmental Code;
4) comparative analysis of the legislation in the field of environmental protection with the legislation of the member states of the Commonwealth of Independent States and other countries with regard to the legislation in this field in order to use the best practices in the development of the draft Environmental Code;
5) analysis of international legal acts recognized by Tajikistan in the field of environmental protection;
6) development of new draft laws on environmental protection in order to include them in the draft Environmental Code;
7) development of article, chapters, separate sections in the draft Environmental Code.
Taking into account the above analysis, the following materials are developed by the members of the working group, which provide a favorable basis for the development of the draft Environmental code:
1) the concept of the draft Environmental Code;
2) methodology of development of the draft Environmental Code;
3) analyzes of the General part of the draft Environmental Code;
4) analyzes of the Special part of the draft Environmental Code.
In general, the Committee on Environmental Protection under the Government of the RT, which implements the state policy in the field of environmental protection, is interested in developing this document as soon as possible and solving existing problems through this Code. In this regard, the above factors and results indicate that the Government of the RT, the Committee on Environmental Protection and other ministries and agencies are ready to develop and adopt this document in order to fulfill the instructions of strategic planning documents and international acts in the field of environmental protection.
Qiyomzoda Z.S. - Candidate of Biological Sciences
Sohibzoda M.M. - Candidate of Legal Sciences.
Experts - Shukurov I., Sudurov S.,
Rakhmonali M., Ibodulloi M.