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§3.1. The comparative analysis of experience of Byelorussia, Republic Kazakhstan and the Kirghiz Republic

In the previous heads of research practical features of inclusion of ecological norms in technical regulations, and private national aspects of inclusion of ecological norms in the legislation on technical regulation of the Russian Federation have been in detail considered both theoretical, and.

The problem of the present paragraph - to consider similar national experience of some countries entering on a level with the Russian Federation in the Euroasian economic union. As a result of similar research it is supposed to draw a conclusion on possibility and necessities of realisation, and can be and addition of norms on technical regulation of the Russian Federation and the Contract on the Euroasian economic union from April, 29th, 2014.

Ekologo-legal aspects of technical rationing of Byelorussia. At first it is necessary to notice, that in Byelorussia the term «technical rationing», instead of technical regulation is applied. Comparison of both terms in this case shows, that it is synonyms and they designate practically same phenomenon of the legal validity except that technical rationing of Belarus includes only activity on an establishment of obligatory requirements to corresponding objects. Further within the limits of the given paragraph we will use the concept established by the legislation of Byelorussia.

The law of Byelorussia from January, 5th, 2004 № 262-Z «About technical rationing» establishes definition of safety of objects of technical rationing which, in our opinion, requires additional consideration. It provides, that objects of technical rationing should correspond to technical requirements which, among other, provide absence of inadmissible risk for environment. The definitive purpose will be in this case not preservation of the environment as process, and safety of environment as a condition.

In the definition of concept resulted above «safety of objects of technical rationing» if to consider it is deeper, the certain identity established between concept and safety of environment is observed. The formulation is represented very successful - it turns out, that objects of technical rationing should not bear any inadmissible loading on environment, should not break certain balance. Criteria of an admissibility or inadmissibility are specified directly in technical regulations.

In more details the question of regulation of preservation of the environment within the limits of technical rationing reveals in the Law of Byelorussia «About preservation of the environment».

Technical rationing and standardization in the field of preservation of the environment and use of natural resources is when due hereunder carried out by the Ministry of natural resources and preservations of the environment of Byelorussia.

Separately questions of technical rationing are resulted in article 30 of the given Law. In specified article it is a question of technical standard legal acts. What is it? it is For this purpose again reversible to the Law «About technical rationing».

According to the Law «About technical rationing» the status of the technical standard legal act have both technical regulations, and the standard, both the technical code, and specifications. Distinctions of these documents first of all are expressed in differences of procedure of working out and in character of requirements. Requirements of preservation of the environment, as a rule, can be specified and in technical regulations, and in standards.

As a whole interesting enough situation turns out. Article 30 of the Law of Byelorussia «About preservation of the environment» exists now in edition of the Law of Byelorussia from 20.07.2006 N 162-Z. Earlier instead of words «the technical standard legal act» it has been specified "standard". There is an impression, that within the limits of reform of system of technical rationing and transition of some countries of the post-Soviet territory to technical regulation (rationing) and to application of technical regulations, within the limits of modification of the Law «About preservation of the environment» it was not accepted final judgement about what certificates will contain ecological requirements. Or, that most likely, the legislator has preferred not to change available structure of normative acts in the given sphere, and, having replaced one name of the certificate another, more indistinct, has solved a problem without infringement of available practice. In the latter case the role of reforming of the system of technical rationing is not up to the end clear.

However nevertheless, considering, that in functions of the Ministry of natural resources and preservations of the environment are listed both technical rationing, and standardization, we can support a hypothesis that ecological requirements can contain both in technical regulations, and in standards. At the same time it is not defined by specificity of each certificate.

The basic maintenance of technical standard legal acts in the field of preservation of the environment - a regulation of ecological requirements to corresponding objects. As objects the goods, works, services, technological processes and a corresponding quality monitoring in this case can act. We will remind, that all listed objects should answer the basic identity «safe object - safe environment».

Separately it is necessary to stop on last point of article 30 of the Law of Byelorussia «About preservation of the environment». In it it is specified, that in technical standard legal acts requirements, norms and rules in the field of preservation of the environment should be considered.

Value of this position is difficult for overestimating: as a matter of fact, it is unique norm which connects the Law «About preservation of the environment» and the Law «About technical rationing» Byelorussia.

At the same time this norm specified last, differs from the previous. Earlier it was a question of technical standard legal acts in the field of preservation of the environment. In the given point it is a question of the technical standard legal acts which requirements extend on group of objects, significant for preservation of the environment.

In the field of preservation of the environment the separate group of objects of technical rationing is allocated. It is a question of the new technics, technology, materials, substances, also the circle of objects is expanded up to production after its transition in a category of a waste, and the technological processes connected with such production, such as storage, transportation and use join. Interestingly that a waste will be considered also as production. It means that, probably, only to certain degree, regulation of indicators of a waste and features of the reference with them will be carried out by means of application of technical standard legal acts (either technical regulations, or standards).

It is possible to assume, that speech in this case goes about technical regulations. In favour of such point of view and instructions on a special circle of objects, and position that requirements in the field of preservation of the environment should be considered in such technical standard legal

Certificates.

Ecological bases of technical regulation of Republic Kazakhstan. In Republic Kazakhstan the Ecological code [111] operates. As a whole it is possible to conclude, that ecological norms of the legislation the Republics Kazakhstans concerning technical regulation, are developed much more, than in Byelorussia and in the Russian Federation.

As well as in Byelorussia, in Kazakhstan there is a branch division of norms of technical regulation: general provisions on technical regulation contain in the law with the same name (the Republic Kazakhstan Law «On technical regulation»), and special special provisions, such as ecological norms of technical regulation contain directly in the Ecological code. Thus preservation of a branch accessory of both kinds of norms, that for such area as technical regulation, is basic is effectively enough carried out.

The Republic Kazakhstan law «On technical regulation» the first of all purposes of an obligatory part of technical regulation (that, as to technical regulations as obligatory for a performance of documents) is named maintenance of safety of production, processes for environment, including safety for vegetative and fauna. In this case it is visible, that, unlike similar norm of the legislation of the Russian Federation, in Republic Kazakhstan vegetative and fauna, let and it is allocated separately, but nevertheless from the specified formulation enters into concept "environment". It is necessary to recognise, that methodologically (and even terminologically) the given approach is more true, rather than the approach of the Russian Federation.

It is especially interesting thereupon, that it is a question of the purpose of technical regulation as uniform system, instead of about the purpose of acceptance of technical regulations as it is specified in the legislation on technical regulation of the Russian Federation.

The economy natural and power resources (energoeffektivnost and resursosberezhenie, using the Russian terminology) is declared in quality of the purpose of standardization, that is the requirements satisfying this purposes should be specified in standards, instead of in technical regulations.

Let's address directly to norms on technical regulation of the Ecological code of Republic Kazakhstan.

The conceptual device of the code includes concept of ecological risk is a probability of adverse changes of a condition of environment and (or) natural objects owing to influence of certain factors. Character of influence and factors are not specified, hence, the influence factor can appear and corresponding production.

Norms of the code state regulation of preservation of the environment includes technical regulation in the field of preservation of the environment. This moment is essential enough as thanks to it there is no interdisciplinary blank between requirements of technical regulation of administrative law and ecological norms on technical regulation. Observance of technical regulations in the field of preservation of the environment is included into a subject of realisation of the ecological control in Republic Kazakhstan.

Norms of technical regulation are included in section 2 which consolidates all tools of administrative influence which includes also licensing of activity in the field of preservation of the environment, ecological rationing, an influence estimation on environment, ecological examination, ecological permissions and ecological audit. It is represented justified as in addition specifies in administrative character of influence of the given institutes and simultaneously - on their ecological accessory or ekologoorientirovannost.

Chapter 5 of the Ecological code of Republic Kazakhstan is devoted to directly technical regulation.

The first on what it is necessary to stop - objective structure. Concerning objects the Ecological code of Republic Kazakhstan contains otsylochnuju norm on technical regulation, not doing any exception of the general rule of definition of a circle of objects of technical regulation. By it it is underlined, that all kinds of production, services and processes of life cycle of production bar none should not render harmful influence on environment.

The same norm is partly underlined further, partly levelled by position about voluntary ecological marks. Effect of levelling will reach thanks to the ascertaining of ecological marks as the voluntary. Ecological marks consist in result of assignment of production of the sign confirming, that given production is ecologically pure and has undergone procedure of acknowledgement of conformity when due hereunder.

Undergo to voluntary ecological marks that production by which manufacture there is the least harmful or even favorable influence on environment, health of the population and biological resources can only.

Certainly, hardly probable any manufacture can have favorable influence on environment. At the same time where as that ecological norms of technical regulation contact production is more interesting, that is is direct with industrial activity of the enterprise. The given approach essentially differs from what is accepted in the Russian Federation where technical regulation, as a matter of fact, does not concern and even is delimited from negative influence of industrial activity. In this connection accurate communication with rationing institute is obviously traced, hence, production made in the "dirty" ways, cannot be ecologically pure by definition even if that actually is.

Interest represents also that technical regulation communicates not only with nature protection the right, but also with prirodoresursnym the right as biological resources, certainly are a part of natural resources.

Within the limits of the same question it is necessary to consider a parity of object of technical regulation and object of ecological marks, considering ecological aspect of the given comparison. Taking into consideration, that object of technical regulation can be any production on which the technical regulations are developed, and object of ecological marks can be only that production which has undergone procedure of an estimation of conformity with positive result - specified above concept correspond with each other as the general and private. At the same time realisation of production, services, processes which come under to obligatory acknowledgement of conformity and have not passed it is it is forbidden.

One more discriminating line of the ecological legislation of Republic Kazakhstan on technical regulation is norm presence about advisory council on the technical regulation, functioning at the authorised body in the field of preservation of the environment. Advisory council problems include working out of projects of technical regulations and consideration of offers on working out and application of technical regulations in the field of preservation of the environment.

Value of such body is difficult for overestimating: they specialises on ecological legal relations, its employees are acquainted with an actual problematics of branch, and accordingly there is a possibility of working out of the technical regulations containing not only declarative data on preservation of the environment, but also really effective standards.

It is impossible to ignore and a question of application of ecological requirements to technologies, technics and the equipment, including imported on Republic Kazakhstan territory.

If after import of the technician and the equipment as a result of examination will be recognised by ecologically dangerous, they should be destroyed or utilised, or are processed with observance of requirements on technical regulation. It is a question in this case of conformity including to ecological requirements of norms of technical regulation.

It means that requirements of technical regulations have not only pravoustanavlivajushchuju a role, but also comprise a set of criteria of ecological safety of production, that finally influences carrying out of an estimation of conformity and examination of technics, technologies and the equipment.

At the analysis of certificates we mark a close parity of the legislation on technical regulation and sources of the ecological right. It proves, that public relations in the field of technical regulation are not in legal "vacuum".

At the same time the given position is levelled by that its realisation has appeared not absolutely successful and limited only to replacement of one terms of articles with others. In this connection the analysis of some questions is complicated (for example, concerning the legislation of Byelorussia) because never with full accuracy it is impossible to tell, this or that norm concerns which kind of certificates of technical rationing (regulation).

By norms of corresponding laws of Byelorussia and Republic Kazakhstan it is established, that in technical regulations (technical standard legal acts) requirements of preservation of the environment should be considered.

For the Russian Federation presence of such requirement is a possibility indicator, and, moreover, necessities of inclusion of ecological requirements for technical regulations.

In Republic Kazakhstan of exceptions of objective structure it is not provided: all objects of technical regulation should not render harmful influences on environment.

It is expedient to provide that all objects of technical regulation should not render harmful influences on environment, and their division into groups should serve the purpose of differentiation of ecological requirements to these objects.

In Republic Kazakhstan technical regulation and standardization are severed - already at a stage of statement of the purposes. This experience is actual enough for the Russian Federation - proceeding from the analysis of norms of the Federal act «On technical regulation» standardization is a part of technical regulation. Already long time is led working out of the Federal act of the Russian Federation «About standardization» to allocate standardization out of sphere of technical regulation, but in the foreseeable future the terminations of the given legislative activity is not observed.

Besides it positive line of technical regulation in Republic Kazakhstan is that observance of technical regulations in the field of preservation of the environment is a part of the ecological control.

Characteristic general line of technical regulation of both countries is the aspiration to differentiation of norms on general provisions on technical regulation and private norms of technical regulation in the field of preservation of the environment.

It is necessary to recognise, that the positive us positive and negative lines of regulation can be used and in the Russian practice.

Ekologo-legal aspects of technical regulation of the Kirghiz Republic. Investigating system of technical regulation of the Kirghiz Republic in general, it is impossible to ignore presence of separate general technical regulations on maintenance of ecological safety (the Law of the Kirghiz Republic «the General technical regulations on maintenance of ecological safety in the Kirghiz Republic»). Especially research of this certificate is of interest in the light of that in the Russian Federation the technical regulations with the similar name have been developed, but and has not been accepted.

The technical regulations of the Kirghiz Republic are of interest at once for the several reasons, besides that, that it represents a practical example of application of mechanisms of technical regulation with a view of preservation of the environment.

First, it is distinguished by separate sphere of application. The technical regulations are accepted exclusively with a view of preservation of the environment, it represents substantive provisions of technical regulation in the field of ecological safety and provides letters rogatories of maintenance of ecological safety at designing and activity realisation on objects of economic and other activity for processes of manufacture, storage, transportation and production recycling.

The separate sphere of application of technical regulations assumes special structure of objects of regulation, in this case it is processes of manufacture which are applied or processes of storage, transportation and production recycling will be applied on objects of economic or other activity for which the danger category is established, or to planned activity.

Let's notice, that unlike the national approach to technical regulation of other member states the Euroasian economic union, at national level of the Kirghiz Republic of the requirement of ecological safety within the limits of technical regulation extend only on economic and other activity, that is on the corresponding processes arising during economic activities, instead of on production, as that. It absolutely corresponds to the basic postulates of preservation of the environment in all states entering into the Euroasian economic union according to which environment is protected from negative influences of economic activities. Such approach partly smoothes «sharp corners», applications of measures of technical regulation arising at attempt with a view of preservation of the environment.

The second discriminating line of the given technical regulations - presence separate (and enough detailed) the conceptual device. In particular separate interest the terms fixed at legislative level represent «fouling substance» (which is understood as substance which at hit in environment at certain concentration creates threat to health of the person, to a condition vegetative and fauna, material and to cultural values), «ecological consequences» (change of a condition of environment or health of the person as a result of economic or other activity) and «requirements of ecological safety» (obligatory requirements for the execution, established with a view of protection against the risks arising in the course of economic and other activity, and also obligatory requirements for execution and the procedures established with a view of prevention of harm to environment or health of the person).

The terms framework of technical regulations provides not only technical terms of technical regulations and technical regulation, but also the basic terms in sphere of preservation of the environment (such as natural resources, environment, ecological supervision, negative influence on environment).

Interestingly and the third: requirements of technical regulations are not simply adjacent with rationing requirements, and completely represent

Institute of ecological rationing.

In this connection, for finding-out of mutual relations of ecological rationing and technical regulation (experience of that would be useful to research of similar interaction of both institutes in the Russian Federation) expediently to address to ecological standard legal base of the Kirghiz Republic.

In particular in the Law of the Kirghiz Republic from June, 16th, 1999 № 53 «About preservation of the environment» the separate section which norms establish bases of rationing of quality of environment, kinds of specifications of quality and an order of their statement is devoted rationing of quality of environment. It is necessary to notice, that the specified norms have the general, inconcrete character and assume additional specialisation in special standard legal acts.

In our opinion, one of such certificates are the investigated technical regulations. Indirectly the structure of technical regulations including the general part testifies to it (chapter 1 "General provisions" regulating sphere of application, the basic concepts, legal bases objects and principles of technical regulation in sphere of ecological safety, chapter 2 «Basis of maintenance of ecological safety», establishing ways and means of maintenance of ecological safety, article 9 of chapter 3 containing the general requirements on maintenance of ecological safety of carried out and planned economic and other activity) and the special part.

Norms of the special part are divided into some groups:

Group of norms of chapter 3 establishing the requirements of ecological safety to separate objects of preservation of the environment, providing protection of atmospheric air, water objects, objects of an animal and flora, soils and natural landscapes, requirements of ecological safety in the field of the reference with production wastes and consumption, the requirement of ecological safety at use of natural resources, and requirements to economic activities;

Group of norms according to the conformity, establishing general provisions on an estimation and acknowledgement of conformity, the form of an estimation of conformity, the requirement of the state ecological control, the state ecological examination;

G ruppa norms on classification of existing objects

Economic activities on degree of negative influence on environment.

Directly, at the analysis of concrete norms of technical regulations it is necessary to conclude, that they represent the general certificates of rationing of admissible influence of economic and other activity on environment. Formulations testify to it practically all norms of technical regulations.

As an example it is possible to result subparagraph 5 of point 2 of article 8 according to which ecological safety of objects of economic and other activity can be provided by replacement of technological processes and the operations connected with negative influence on environment, processes about operations at which application this influence will be minimised and will not exceed the resolved levels of negative influence, and also subparagraph 1 of point 1 of article 10 according to which with a view of protection of atmospheric air input in a system and operation of stationary objects of the economic and other activity which has been not equipped with installations of clearing of emissions and control devices is forbidden, and also not used maloothodnymi technologies in which result specifications of emissions of fouling substances in atmospheric air are not carried out.

Norms of technical regulations in sense of rationing are more detailed, than norms of the Law «About preservation of the environment», but also assume additional detailed elaboration - already within the limits of special certificates. The norm of point 3 of article 9 speaks about it, for example: «the Establishment of levels of the resolved negative influence on environment is carried out by objects of existing and planned economic and other activity in the order defined by the special representative by the state body on preservation of the environment in an order established by the legislation», or norm of point 2 of article 10: «the maintenance of fouling substances in emissions of stationary and mobile sources according to the requirements established by special technical regulations Is limited».

As a result, as a matter of fact, the given technical regulations represent not a measure of technical regulation, and one of the general certificates in the rationing sphere, accepted with a view of preservation of the environment. Principles of technical regulation per se practically do not find in it the reflexion. The given certificate a little than differs from certificates with similar the requirements, accepted in other states not within the limits of technical regulation, and within the limits of the legislation in sphere of preservation of the environment. Such approach as a whole reduces reguljativnyj ekologo-legal potential of technical regulation, reducing it only to juridiko - the technical frame tool of the influence which is not assuming the specialised maintenance. The identification of technical regulation and rationing, in the Russian Federation undertaken by some researchers at theoretical level, in the Kirghiz Republic has found the reflexion in accepted and the current legislation.

It in addition confirms ambiguity and uncertainty ecological components of technical regulation and the importance of its additional theoretical judgement.

At the same time there are also positive moments. For example, it is necessary to note a terminology detail. Additional inclusion of terms «fouling substance», «ecological consequences» and «requirements of ecological safety» (under condition of inclusion in these terms not only economic activities, but also production) in defining certificates in sphere of technical regulation, can serve additional strengthening of nature protection aspect of application of measures of technical regulation.

Also a positive example is the aspect of ordering of requirements on the basis of protected object of environment. Perspective working out of a theme of danger of objects of technical regulation on the basis of their influence on separate objects of environment is represented within the limits of the further research of technical regulation.

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A source: Shakirova Diana Ildarovna. LEGAL ENVIRONMENTAL PROTECTION BY MEANS OF TECHNICAL REGULATIONS. Thesis for the degree of candidate of legal sciences. Moscow, 2017. 2017

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