WTO AND ENVIRONMENTAL REQUIREMENTS: SOME ASPECTS OF LEGAL REGULATION IN LITHUANIA, THE RUSSIAN FEDERATION AND UKRAINE
08.05.2009 18:12
Автор: Edita Gruodytė, Associated professor Ph‘d, Head of Public law department Vytautas Magnus University, Lithuania, Nikolay Kichigin, Ph.D., research worker Institute of Legislation and Comparative Law under the Government of the Russian Federation, Aleksandra Chernous, Ph.D., research worker Koretsky Institute of state and law of the National Academy of Science of Ukraine
[Екологічне право. Земельне право. Аграрне право]
Recently special attention has begun to be spared to the issue of meeting the world standards of quality and safety by domestic products and the ecologizations of economical activity on the whole, all of which has been due to an active development of the market relations in the post-Soviet states and their active collaboration in the international trade and their admission to the international organizations, in particularly to the World Trade Organization (WTO) [1]. WTO recognizes sustainable development as the central principle which is reflected in such basic WTO instruments as the Marakesh Agreement establishing World Trade organization (15 April, 1995) and the Doha Ministerial declaration (14 November, 2001). The achievement of sustainable development requires integration of economic, environmental and social components at all levels. The task may be achieved only by continuous dialogue and action in global partnership, focusing on the key sustainable development issues such as, for instance, protection of environment, economic and social development.
On the World Summit on sustainable development in Johannesburg, 2002, they regretted that it much less was done than it had been planned, and while preparing for the summit all the countries were asked during the year 2002 to work out national strategies for sustainable development and to create effective means of and instruments for their implementation. For example, in 2000 Lithuanian government established the Commission for national sustainable development where the prime minister presides. In the year 2003, Lithuanian government approved the Lithuanian National sustainable development strategy and formulated the main long–term, mid-term and short-term goals and instruments for the their implementation therein. Additionally, there has been foreseen the creation of an effective system to monitor the Strategy’s implementation, providing an opportunity to regularly assess the achieved progress and to reveal obstacles and problems. The Ministry of Environment has formed a group of experts in various fields with the aim of regular analysing exterior and interior changes, timely preparing recommendations for the elimination of the revealed weaknesses.
The main criteria for identification of sustainable development in the environmental sector in Lithuania are the following: emissions of greenhouse gases (thousand tones CO-2 equivalent 0,4 in 2000, 0,3 in 2006), emission of air pollutants (total emissions from 445,6 in the 2000, to 396,7 in the year 2006), maximum annual average concentrations of ambient air pollutants in Lithuanian cities and towns, waste water, collected wastes and protection of biodiversity and landscape (for example, in 2004 forest land area was 2069,1 thousand ha while in 2008 - already 2142,9 ha) [2]. One of the problems identified in the aforesaid National strategy is related to environmental sector effective usage of energy for creation of BVP- Lithuania uses 1,7 as much energy as the European average and hopes TO REACH EUROPEAN AVERAGE till the year 2020.
In light of the aforesaid it should be noted that unlike the legislation of European Union, the WTO legal instruments do not expressly stipulate the environmental requirements because they are intended to regulate the questions of the world trade [3]. One indirect factor that primarily causes changes in the environmental legislation is the reform of the technical regulation.
Presently, Russia is not an accessory to the WTO. Nevertheless, with the eye to accede to WTO, the Russian Federation has adopted legislation on technical regulations and is now elaborating technical rules including those containing environmental requirements. Moreover, if Russia accedes to the WTO, the legal regulation of the environmental aspects of economical activity will have to be both brought into accordance with express requirements of the WTO (in the part of the wastes handling) and changed under the influence of indirect factors (unification of the environmental requirements, procedures for obtaining licenses, limits on emissions, introduction of the environmental audit and insurance).
Taking into account the integration processes now existing in Ukraine and in accordance with Section 1 Paragraph 4 of the Conception of the Project of the National Special Economic Program of Industrial Development for the period up to 2017, approved by the Direction of the Cabinet of Ministers of Ukraine No. 947-r of July 9, 2008, the social and ecological orientation of the reforms in the industry and realization of innovative type of industrial development were acknowledged as the basic principles of the public industrial policy. According to Paragraph 2 Clause ІІІ of the State program for industrial development in 2003-2011 approved by the Resolution of the Cabinet of Ministers of Ukraine No.1174 of July 28, 2003 the biotechnology, technical equipment and technology for the agroindustrial complex and ecological technologies were acknowledged one of the high priority innovative kinds of industrial activity. Legal regulation of these types of activity also includes the norms of current legislation on genetically modified organisms (GMO), agrochemicals and pesticides etc. In this respect special consideration must be given to the main problems of current legislation in this sphere.
Use of GMO in the food industry has such positive aspects as a possibility to solve the problems of overcoming hunger and poverty, to promote quality of food products and to decrease the heavy ecological loading on environment in the result of the use of pesticides and agrochemicals. At the same time, the introduction of genetically modified (GM) food poses threats to the environmental safety. In particular, one of the acute problems of the present days is the issue of the prohibition to use GMO in child's food products. It’s an experiment over a man which can naturally bring to violation of basic human rights as well as an experiment over the nature.
In Russia, the problem of use of the GM food is being outspoken in the scientific community and mass media. The Federal Law No.86-FZ of June 5, 1996 “On State Regulation of Genetic Engineering Activity” is in effect. Moreover, the legislation on protection of consumers prescribes the obligations of enterprises to report to consumers the information about availability of components got with the use of GMO in the event that amount of such organisms in such components exceeds 0.9%.
Upon analysis of the current Ukrainian legislation we can hardly say that it contains no any rules on GMO, because it regulates certain aspects of their use, primarily the questions of informational and analytical nature as well as those regarding certain aspects of the export-import and trade of GMO and making products with the use of GMO. According to the Article 53 of the Law of Ukraine ”On Environmental Protection” No.1264-ХІІ of June 25, 1991, GMO is subject to the environmental examination governed by the Law of Ukraine “On Environmental Examination” No.45/95-VR of February 9, 1995. Certainly, it is a positive aspect of legal regulation of GMO in Ukraine.
In the sphere of legal regulations of handling pesticides and agrochemicals in Ukraine there are hectic debates on the issues of registration of pesticides and agrochemicals, granting permissions to import unregistered pesticides and agrochemicals for scientific and research purposes, certification and licensing of pesticides and agrochemicals including licensing of import of the substances for plant protection etc. Special consideration should be given to the question of handling unfit pesticides, including those prohibited for application. They are classified as dangerous wastes and are subject to appropriate legal regulations.
The Russian Federation has similar legal regulations in the sphere of handling pesticides and agrochemicals. Like in Ukraine, in Russia the problem of utilization of the overdue pesticides and agrochemicals kept by agricultural producers is the hot issue of the day. Assistance from the state seems to be indispensable to solve this problem as far as many agricultural producers do not have sufficient finance and other possibilities to minimize potential environmental harm.
At present, it is possible to distinguish a few actual and debatable problems in the sphere of handling wastes in Ukraine:
• prohibition of import to Ukraine of dangerous wastes for the purpose of their storage, making harmless or burial;
• utilization and making harmless of a separate group of dangerous wastes composed of chemical substances for plant defence that are unapt for the use and forbidden for application;
• successive reduction of the volumes of the accumulated toxic wastes by means of their utilization, making harmless and disposal of site;
• limitation of formation of toxic wastes by means of restructuring production processes (where it is possible), regeneration and implementation of the low-waste technologies and processes of the closed cycle (including creation of the «cascading system of production»);
• cleaning the territories polluted with toxic wastes etc.
Special consideration should be given to the absence in Ukraine of legislative regulations of the activity on the use of various types of synthetic liquid fuel, sewage gas, bio-fuel and technologies of generation and use of non-conventional power sources.
With the aim to remedy the situation in Ukraine regarding handling wastes, Article 5 of the Resolution of the Verkhovna Rada of Ukraine “On the state of implementation of legislation in the field of handling wastes in Ukraine and ways of its improvement” No.2967-IV of October 6, 2005 sets forth the following recommendations:
• development and implementation in Ukraine of the state cadastre of wastes (Article 5 Part 15),
• realization of inventory of storage places of unfit for the use pesticides and agrochemicals with the purpose of determination of owners (Part 19),
• development of the mechanism of providing utilization and making harmless of pesticides and agrochemicals unfit for use (Part. 20) etc.
Unfortunately, most of these provisions remain in the status of recommendations and do not lead to solution of any problems in this sphere. In addition to legal acts regulating activity on handling wastes, there is need for an effective mechanism of state administration and control as well as analysis and use of the experience of other countries in solving said problems.
On the whole, the legislation of Russia conforms to the international requirements in the field of handling wastes. At the same time a great number of questions related to handling wastes, their conversion and second use remain unsettled. It is necessary to develop legislation on peculiarities of utilization of certain types of wastes, for example, cars, sorting of solid domestic wastes.
It was repeatedly underlined in mass-media that about 80% of capital assets on the modern industrial enterprises of Ukraine were threadbare. The same situation can be seen in Russia. For example, depreciation of capital assets of the heat supply systems of the subjects of the Russian Federation is estimated from 40 to 75 per cent [4]. On the one hand, it can affect the amount and quality of the products/services that are produced/rendered. On the other hand, there is a risk of occurrence of unfavourable environmental consequences and growth of environmental requirements to the technologies in use on the enterprise and their products. All of the aforementioned results in the growth of the producer’s charges. In Ukraine, this problem is intensified as a result of the poor state financing of nature protection measures (in particular, financing on the residual principle), as well as in connection with opting for cheap methods of realization of state plans and programs for the sake of bigger volumes of their implementation. Hence, a question about changing the sources of financing flows natural. In this respect, the focus is shifted to the attraction of financial resources of collective and private, domestic and foreign investors. It is logical that in this connection the question of importance of financial incentive for business entities in this sphere becomes very important. This purpose may be achieved, for example, by means of introducing, in addition to the existent economic instruments (charges and payments for pollution, ecological funds, penalties, etc.), such regulators of nature management, as: different types of tax exemptions, credits and loans on favourable terms, flexible system of ecological taxes, material incentives for the ecologization of production activity, differentiation of pricing taking into account the environmental criterion etc.
In Russia, the problem of effective economic stimulation of users of natural resources is no less sharp. Although there are some economic instruments (income tax privileges, investment tax credit, payment for negative environmental impact), their efficiency and effectiveness is not high. The situation can be remedied due to the special-purpose financing of the environmental measures from the budgets of all levels, more flexible use of the mechanism of payment for negative environmental impact, implementation of the mechanism of a state-private partnership for the joint solution of environmental problems by the state and users of natural resources.
The described measures will assist in the development of the environmental entrepreneurship. In Russia, as well as in Ukraine, an environmental entrepreneurship (an entrepreneurial activity which is carried out for the preservation of the environment) is officially acknowledged and supported by the state. However, in the conditions of absence of any mechanisms of support and stimulation the state support is purely declarative and carried out, as a rule, «on paper» only. Undoubtedly, that the environmental entrepreneurship exists in these countries (waste conversion, environmental audit, eco-labeling etc.). However, it is slowly developing and, frequently, unprofitable in absence of any interest on the part of the state and being unclaimed on the part of the business.
Thus, we may conclude that taking into account the fact that Lithuania is a participant of WTO since 2001 and a member state of EU since 2004, its legislation to the greatest possible extent conforms to the environmental requirements set forth by these international organizations. In this country there are fewer problems with technical regulations than in other countries coming out from the USSR. In particular, Ukraine and Russia have similar environmental problems in this sphere, and acceding to WTO can have both positive and unfavourable impact on the environmental activity of both states. At the same time, creation of favourable conditions and practical realization of the effective state and public environmental control may bring a more positive result for ecology and environmental legislation.
Literature:
1. For today, the WTO has more then 150 members. Particularly Lithuania is a member of the WTO since 31 March 2001. Ukraine became the WTO’s 152nd member since it ratified the Protocol on the Accession of Ukraine to the World Trade Organization (Geneva, 5 February, 2008) by the Law of Ukraine No.250-VI of April 10, 2008 // Golos Ukraini No.76 of 19.04.2008. Official web site of the WTO: http://www.wto.org/english/thewto_e/countries_e/lithuania_e.htm
2. Sustainable development indicators.P.3 // http://www.stat.gov.lt
3. Lithuania is a member of the European Union from 1(st) May 2004 // http://ru.wikipedia.org/wiki/%D0%95%D0%A1
4. Толкушкин А.В. Комментарий (постатейный) к Федеральному закону от 17 августа 1995 года № 147-ФЗ «О естественных монополиях». Подготовлен для системы КонсультантПлюс, 2006.
e-mail: achernous@yandex.ru
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