Життя та здоров’я людини як об’єкт екологічного права у глобалізованому світі

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Життя та здоров'я людини як об'єкт екологічного права у глобалізованому світі

Анатолій Павлович Гетьман

Національний юридичний університет імені Ярослава Мудрого Харків, Україна

Анотація

У статті досліджуються питання правового забезпечення охорони життя та здоров'я людини в новітніх умовах глобалізаційних процесів, які охопили всі сфери політичного, економічного, фінансового, соціального, географічного та культурного життя і становляться базовим чинником людства на планеті. Ці процеси задають нові тенденції екологічного розвитку держави, по-новому визначають проблеми забезпечення екологічної безпеки через мінливий характер викликів і загроз, із якими стикається людство. Несприятливий стан навколишнього природного середовища й необхідність забезпечення екологічної безпеки вимагають ужиття адекватних заходів правового, організаційного та іншого характеру. Вважається, що в цих умовах людина, її життя та здоров 'я повинні становитися в центрі механізму правового регулювання охорони та захисту, екологічної безпеки, особливостей встановлення правового статусу громадян, потерпілих від негативних наслідків прояву екологічної небезпеки та гарантій реалізації прав таких громадян. На держави покладається ціла низка зобов 'язань перед людиною по створенню умов для її «екологічного комфорту». Такі зобов'язання повинні знайти своє відображення в екологічному законодавстві (законодавстві про довкілля) відповідних держав. Останнім часом загрозливого стану набувають урбанізовані території, неконтрольоване розширення яких неминуче призводить до порушення нормального функціонування біогеотичного покриву планети, а відповідно - негативного впливу на здоров 'я та життя людства і, особливо, тієї його частини, яка проживає у великих містах, або інших мегаполісах. Доводиться, що загальний несприятливий стан довкілля висуває нові вимоги до екологічної безпеки, яка в умовах глобалізації світового простору й інтерналізації природоохоронних проблем стає домінантним фактором глобальної безпеки людства, оскільки відбувається загострення екологічної ситуації, що вимагає необхідності здійснення ефективної політики стосовно її покращення.

Ключові слова: охорона клімату, правове забезпечення екологічної безпеки, антропозахисне право, державна екологічна політика.

Abstract

HUMAN LIFE AND HEALTH AS AN OBJECT OF ENVIRONMENTAL LAW IN THE GLOBALISED WORLD

Anatolii P. Getman

Yaroslav Mudryi National Law University

Kharkiv, Ukraine

The article examines the issues of legal protection of human life and health in the latest globalisation processes, which have covered all spheres of political, economic, financial, social, geographical and cultural life and are becoming a basic factor of humanity on the planet. These processes set new trends in the ecological development of the state, redefine the problems of environmental security due to the changing nature of the challenges and threats facing humanity. The unfavourable state of the environment and the need to ensure environmental safety require the adoption of adequate legal, organisational and other measures. It is believed that in these conditions a human, his life and health should be at the centre of the mechanism of legal regulation of protection and defence, environmental safety, especially the establishment of the legal status of citizens affected by the negative consequences of environmental danger and guarantees of such citizens. The state has a number of obligations to human to create conditions for his “environmental comfort”. Such obligations should be reflected in the environmental legislation of the respective states. Recently, urban areas have been becoming threatening, the uncontrolled expansion of which inevitably leads to disruption of the normal functioning of the biogeotic cover of the planet, and consequently - a negative impact on health and life of mankind and especially that part of it living in large cities or other cities. It turns out that the general unfavourable state of the environment makes new demands on environmental security, which in the context of globalisation and internalisation of environmental problems is becoming a dominant factor in global security, as the environmental situation worsens, requiring effective policies to improve it.

Keywords: climate protection, legal provision of ecological safety, anthropo-protective law, state ecological policy.

INTRODUCTION

життя людина екологічне право

In modern conditions, the concentration of industrial and chemical production, man-made activities, dangerous natural processes have a negative impact on human life and health. The greatest risks are agriculture, ferrous and nonferrous metallurgy, nuclear industry, transport and energy, which are carriers of air pollution, high noise levels, greenhouse gas emissions, drinking water shortages, reduction of green areas, land pollution. It is also about changes in land use, toxicity of the biosphere, loss of biodiversity, disruption of natural cycles, lack of natural soil and wetlands in residential, industrial and other places of permanent human habitation. Waste generation leads to land being used for landfills. The concentration of small particles in the air has an adverse effect on health. Noise pollution is exacerbated by the compaction of activities, including transport, as well as the use of hard, sound-reflecting materials, as a result of which a person is constantly faced with problems affecting his internal psychological state. That is why human life and health are considered in the environmental legislation of Ukraine as a priority object of legal protection of the environment, as evidenced by Part 3 of Art. 5 of the Law of Ukraine “On Environmental Protection”.

The protection of human life and health in the latest globalisation processes, which have covered all spheres of political, economic, financial, social, geographical and cultural life and become a basic factor in human evolution on the planet, should become a trend in modern doctrine of environmental law and legislation of Ukraine. Traditionally, globalisation is considered in interrelated aspects, the main of which are: economic, mental or cultural-ideological, territorial, information-communication and ethnic. If economic and cultural-ideological (mental) globalisation is a union of capital, labour resources, goods, services and related corporations and firms, unification and integration of traditions, culture, ideology, then, in contrast, territorial globalisation is the process of consolidation of states and supranational entities, which results in the weakening of nation-states and the reduction of their sovereignty. The latter is closely linked to the centralisation of power, as modern states delegate more and more powers to influential international organisations, including the European Union, Ukraine, the World Trade Organisation, the North Atlantic Treaty Organisation, the International Monetary Fund, the World Bank and others. In addition, global environmental globalisation processes have recently become increasingly important, requiring a consistent, effective and timely solution to global environmental problems related to climate change, ozone depletion, biodiversity conservation, chemical and radioactive pollution, including acid rainfall, desertification, reduction of natural resource potential, increase in the number of man-made disasters, increase in the probability of loss of biosphere stability era, the economic capacity of which is finite [1].

The processes of globalisation set new trends in the ecological development of the state, redefine the problems of environmental security due to the changing nature of the challenges and threats facing humanity. The unfavourable state of the environment and the need to ensure environmental safety require the adoption of adequate legal, organisational and other measures [2]. According to experts, three quarters of the world's population lives in countries where consumption is so high that ecosystems simply do not have time to recover. Such “environmental debtors” have to borrow forest, water and other natural resources from other countries, sometimes to the detriment of their “creditors”. “If our demand for Earth's resources grows at the same rate, we will need two such planets to meet all our needs by the mid-2030s,” said James Lip, CEO of the World Wildlife Fund. According to him, today humanity uses 1.5 times more resources per year than nature can restore. Continuation of this practice threatens detrimental environmental consequences [3]. And such consequences are negative not only for the environment, but, first of all, for a human who lives in this environment. Thus, the aim of the article is to study the legal mechanism of providing favourable conditions for human life and health in the current conditions of globalisation processes taking place in the world. The current environmental legislation of Ukraine recognises the ultimate goal of environmental protection is the protection of human himself, but so far, at the level of general declarations. Therefore, the analysis of existing in the legal literature doctrinal provisions, laws and regulations on these issues is extremely important for the further development of relevant scientific proposals and recommendations.

1. MATERIALS AND METHODS

The versatility and complexity of the research issues led to a comprehensive approach to solving the scientific goal. For a detailed study of the stated topic, the author used a variety of general and special methods of cognition, the choice of which is determined by the characteristics of the object, subject, purpose and objectives of the scientific article. The study was conducted in line with the dialectic of general and special, which is extrapolated to the sphere of human life and health as an object of environmental law in the context of globalization challenges. Thus, it was found that the protection of human life and health in the latest globalisation processes, which have covered all spheres of political, economic, financial, social, geographical and cultural life and are becoming a basic factor in human evolution on the planet, should become a modern trend doctrines of environmental law and legislation of Ukraine. It is emphasised that the current environmental legislation of Ukraine recognises the ultimate goal of environmental protection is the protection of human himself, but so far at the level of general declarations.

In accordance with the outlined theoretical tasks, a set of methods of scientific cognition is used, the use of which confirms the multifaceted nature of the obtained results. Formal-logical and systemic methods allowed to study the features of ensuring the sustainability of environmental security of the state in the context of globalisation, as recently there has been an increase in environmental danger to human health and life in different regions of Ukraine due to man-made activities, dangerous natural processes and other anthropogenic changes. The use of this method made it possible to find out that a new stage in the evolution of the biosphere is taking place - the transformation into a biotechnosphere. This process is a complex and unique phenomenon characterised by a set of dynamic biological, social, economic, informational and technical processes occurring on the planet. Among all other methods of research, the method of modelling was used, which provided an opportunity to consider the scientific and legislative problem of human life and health as an object of environmental law in a globalised world that serves to improve Ukrainian legislation. The forecasting method was used in the study of globalisation of environmental processes occurring in the world. The reasons for these processes are associated with the need to meet the growing material needs of mankind, which leads to the expansion of economic activity. As a result, the problems of its global pollution, global climate change, depletion of the planet's natural resources, increasing the number of man-made disasters and accidents, increasing the likelihood of losing the resilience of the biosphere are exacerbated.

The formal-legal method is used in the analysis of legal norms that exist in the mechanism of legal regulation of protection and defence, environmental safety, features of establishing the legal status of citizens affected by the negative consequences of environmental danger and guarantees of rights of such citizens. Scientific knowledge of legal phenomena should be based on the principles of scientific objectivity, a combination of theory and practice, which eliminates the bias of research results, their dependence on various subjective factors. The method of formal logic allowed the use of general methods in the field of economic law. Thus, one of the dominant in the methodological approach is the comparative legal approach, which allowed to determine the content of such concepts as “human life and health”, “biogeotic cover of the planet”, “environmental problems” and others. Using the method of analysis and systematisation, the sources of environmental law were monitored in order to determine the existence of norms on human safety, protection and defence of his lifehood in the process of carrying out the relevant types of special nature management. The presence of such norms in the legislative acts of the resource direction (Land, Water, Forest Codes, Subsoil Code, laws “On flora”, “On fauna”, “On air protection”, “On nature reserves”, “On ecological network”, “On the Red Book”, etc.) is extremely important for the implementation of the mechanism of protection of human life and health in the natural environment.

These and other methods were used in conjunction, which contributed to the conceptuality of the study and the validity of the formulated scientific conclusions and recommendations. The presented scientific ideas of the author in the conditions of modern development of ecological law include target, methodological, substantial, organisational- legal and effective components.

2. RESULTS AND DISCUSSION

Recently, urban areas have been becoming threatening, the uncontrolled expansion of which inevitably leads to disruption of the normal functioning of the biogeotic cover of the planet, and consequently - a negative impact on health and life of mankind and especially that part of it living in large cities or other cities. Today it is obvious that the natural and urban environment cannot develop autonomously. On the contrary, their relationship is becoming increasingly complex. There is a new stage in the evolution of the biosphere - it is transformed into a biotechnosphere. This process is a complex and unique phenomenon characterised by a set of dynamic biological, social, economic, informational and technical processes occurring on the planet. Urbanisation as one of the main components of the balance of the bio- and technosphere occupies a decisive place in these processes [4].

The pace of urbanisation in the modern world is unprecedented: since 1950, the urban population of the Earth has increased tenfold. The fastest pace of urbanisation is observed in developing countries and the most developed countries, where they together account for three quarters of the world's urban population. Cities are part of the natural environment, are habitats and ecosystems, and like any ecosystem, are dynamic and interconnected with other elements of the environment [5]. As humanity's understanding of the complex relationship between human well-being and the integrity and stability of the ecosystem deepens, it is becoming clear that the great global challenge of urban development in the 21st century is to find ways in which urban planning and governance not only meet the needs of urban dwellers in large, fast-growing cities, but meet those needs in a way that recognises the interdependent relationships of the cities and ecosystems of which they are a part. There is a growing consensus that a reductionist approach to the command form of control is not the best way to interact with what is essentially a dynamic system of adaptive living; sustainability and adaptation are a factor in the well-being of cities. This requires a significant review of the traditional model of urban development and legal regulation of relevant processes [6].

According to some researchers, the number of cities, their population, spatial extent, growth rate and degree of environmental impact are unprecedented. Today, there are a huge number of serious environmental problems in cities related to food production, energy, water supply, waste management and pollution, as well as social problems related to jobs, poverty and human health. Some researchers predict that as a result of the current speed and scale of urbanisation around the world, humanity is on the verge of a new “urban revolution”. This has led to the fact that cities are largely built as separate objects, in which buildings, roads, natural, energy objects, financial resources were studied separately from each other that ultimately has a negative impact a the person who is in this city (permanently or temporarily) [1; 7; 8]. Unfortunately, the Sustainable Development Strategy “Ukraine 2020”, which was approved by the Decree of the President of Ukraine of January 12, 2015, did not contain any environmentally oriented items, including it did not mention the legal provision of environmental protection in cities.

However, in recent years, settlements are increasingly seen as complex ecosystems, which implies the need to consider them as a complex system of components that are in constant interaction with each other. The boundaries of each ecosystem are not fixed. Therefore, the whole city can be considered as an ecosystem or its smaller components, such as lake ecosystems, housing ecosystems, green ecosystems, etc., each of which can be an independent subject of study and object of management. At the same time, according to experts, a healthy ecosystem is stable and persistent as long as it retains its organisational structure and autonomy. Accordingly, the key tool to achieve the goal of the new “urban revolution” is to incorporate environmental knowledge and principles into urban governance and development processes to ensure the development of healthy, viable, sustainable urban ecosystems that will create comfortable living conditions for all urban populations. To date, a draft for Sustainable Development Strategy of Ukraine for the period up to 2030 has been developed, which includes the following elements of protection of human life and health in the urban environment:

- introduction of energy efficient and environmentally friendly public transport systems in cities based on the use of electric vehicles;

- ensuring balanced and interconnected spatial development of cities and rural settlements and opportunities for integrated planning of settlements with public participation and management;

- ensuring the effective functioning of the early warning system, prevention and elimination of the consequences of natural and man-made disasters in settlements;

- reduction of negative anthropogenic impact on human health in cities by improving air quality and disposal of municipal waste;

- ensuring general access of all segments of the population to safe, accessible and open green areas and water bodies and establishing the share of green areas in the settlements of at least 20% of the total area;

- significant increase in the number of cities and other settlements that have adopted and implemented comprehensive strategies and plans for sustainable spatial development and aimed at eliminating social barriers, improving the efficiency of natural resources, mitigating the effects of climate change, adapting to its changes and resilience natural disasters.

The setting of such goals is due to the fact that one of the features of modern urbanisation is the concentration of a significant number of people mainly in large cities and, accordingly, their further growth. Thus, there is the formation of an urban environment or urban ecosystem, which is a qualitatively new physical and geographical state of the geo-environment, which arises as a result of long-term development of a city. During its formation all components change: atmosphere, climate, vegetation, fauna, soils, surface hydrosphere, geodynamic state of territories. In this case, the larger the size of a city, the time of its existence and the degree of development of industry in a city - the more significant changes in its environment [9-14]. In these conditions, a human, his life and health should be at the centre of the mechanism of legal regulation of protection and defence, environmental safety, especially the establishment of the legal status of citizens affected by the negative consequences of environmental danger and guarantees of the rights of such citizens. The state has a number of obligations to human to create conditions for his “environmental comfort”. Such obligations should be reflected in the environmental legislation (environmental legislation) of the respective states.

In this regard, it is worth mentioning that the issue of protection of human life and health is an original, but insufficiently implemented problem of environmental law and legislation, which has been repeatedly emphasised in the legal literature. In particular, at the end of the 20th century a monograph was published by well-known specialists in the field of law and economics, professors E.V. Vilenskaya, E.O. Didorenko and B.G. Rozovsky entitled “Legal protection of humans in the environment”. According to scientists, “a person is the main subject of legal relations, and the law itself exists to protect people in all spheres of life. Formally, everything is so, but in reality the law has never protected, and even today does not fully protect a human as a personality, without specifying - who exactly and within what limits” [15].

According to E. Vilenskaya, E. Didorenko and B. Rozovsky, in the existing realities, the focus on human protection in his natural environment requires qualitatively new ways to solve problems of both human protection and the environment. The essence of this trend is manifested in the definition of environmental protection not as the main task, but through the prism of the strategic problem of environmental quality management, in which human is not a passive spectator, but an active subject of positive impact on the environment and neutralisation of its negative changes. Such a conceptual idea can become the basis for the formation of a new ideology in the field of environmental law - human protection in the environment [15]. But, according to the authors of the monographic study, the proposal to consider the purpose of environmental law to protect people in their natural environment is not fully accepted by the theory of this industry, and even less - is not implemented by law and practice [15].

The concept of human protection in the natural environment was further developed on the territory of independent Ukraine in the scientific works of Academician V.I. Andreytsev [16; 17], but in a slightly different sense. In his opinion, the environmental legislation of Ukraine has established legal principles that ensure the protection and defence of human, his life, health and safety in the process of life. The author considers this set of legal norms as a complex interdisciplinary branch of legislation and law - anthropoprotective (anthropodefensive) law of the legal system and the legal system of Ukraine [17]. In addition, to the subject of environmental law, V.I. Andreytsev in his first scientific works on this issue includes anthropoprotective (protection of human life and health from a dangerous environment) legal relations, as well as legal relations for the protection of human life and health from dangerous anthropogenic and negative impact of natural forces and natural phenomena. The author considered the life and health of citizens from a dangerous ecological state to be integrated objects of ecological law; and in the structure of environmental law singled out a complex intersectoral legal institution - the legal ecology of human, or legal support for environmental safety of citizens [16]. V.I. Andreytsev substantiates his conclusions by the existence of an extensive system of legal norms contained in the Constitution of Ukraine, the Charter of Fundamental Rights of Citizens of the European Union, and certain legislative acts: Basic principles (strategy) of state environmental policy of Ukraine until 2020 (as amended) - for the period up to 2030), the laws of Ukraine “On the basis of the legislation of Ukraine on health care”1; “On Ensuring Sanitary and Academic Welfare of the Population” ; “On Environmental Protection”; “On Ecological Expertise” (expired); “On Pesticides and Agrochemicals”; “On Transport”; “On protection of man from the effects of ionizing radiation”; the Civil Code of Ukraine; Criminal Code of Ukraine; Code of Ukraine

“On Administrative Offences” and some others [18]. Incidentally, it should be noted that not all sources of environmental law have rules on human safety, protection and defence of human life in the implementation of relevant types of nature. These norms only partially are present in some codes and laws of post-resource orientation [17]. In particular, the Land Code of Ukraine11, which aims to regulate land relations in order to ensure land rights of citizens, legal entities, territorial communities and the state, rational use and protection of land, human security and protection in land use does not pay the necessary attention and leaves them outside the scope of legal regulation. As an exception, it is worth to consider Art. 5 of this Code, where among the principles on which the land legislation is based, the priority of environmental safety requirements is mentioned, which, of course, in the relevant interpretation is general (abstract). In addition, the creation of zones of special regime of land use around the military facilities of the Armed Forces of Ukraine and other military formations to ensure the protection of the population are provided (Article 115).

The Water Code of Ukraine regulates in more detail the issues related to the safety of human life and health. First of all, water users are obliged to comply with the established standards of maximum permissible discharge of pollutants, as well as sanitary and other requirements for landscaping (Article 44). According to A.S. Yevstihnieiev [19], this can be one of the most important and effective guarantees of safe for human life and health use of water [19]. In addition, the Code provides for environmental safety standards, environmental water quality standards (Article 35), urgent measures to prevent natural disasters caused by harmful effects of water, accidents on water bodies and eliminate their consequences (Article 108). In particular, in emergency situations on water bodies related to their pollution, which may adversely affect the health of people, the enterprise, institution or organisation due to which an accident occurred, or which detected it, must immediately begin to eliminate it consequences and report an accident to the relevant central executive bodies.

Similar provisions are contained in the legislation on subsoil. Thus, the Code of Ukraine on subsoil1 provides requirements to ensure: in the geological study of subsoil - environmentally safe for human life and health of the environment (Article 38 of the CUS); during the design, construction and commissioning of mining and mineral processing facilities, as well as underground structures not related to the extraction of minerals - measures to ensure the safety of people (Article 50 of the CUS); in the development of mineral deposits and processing of mineral raw materials - safe for people to conduct work (Article 53 of the CUS). The bodies of state mining supervision of geological exploration, their use and protection are empowered to verify the correctness and timeliness of measures to ensure the safety of people from the harmful effects of work related to subsoil use (Article 63 of the CUS). ). In addition, failure to comply with the requirements for the safety of people from the harmful effects of work related to subsoil use may result in disciplinary, administrative, civil or criminal liability under the laws of Ukraine (Article 65 of the Criminal Code). A large number of normative documents in the field of subsoil protection, the list of which is given in the Index of normative legal acts on labour protection, approved by the order of the State Service for Mining Supervision and Industrial Safety of Ukraine dated April 12, 2012, № 74, contain instructions on limiting negative impacts subsoil use for human health. However, according to A.S. Yevstihnieiev, most of them were developed and adopted in Soviet times and are obsolete, which makes it impossible to effectively use them in modern conditions [19].

The Law of Ukraine “On Protection of Atmospheric Air” provides for certain legal measures regarding human safety in the environment [20; 21]. In particular, in order to create a favourable living environment, prevent harmful effects of atmospheric air on human health, emissions of the most common and dangerous pollutants are regulated, the list of which is established by the Cabinet of Ministers of Ukraine (Article 11 of the Law “On Protection of Atmospheric Air”). In order to ensure optimal living conditions in areas of housing, public recreation and rehabilitation of the population in determining the location of new, reconstruction of existing enterprises and other facilities that affect or may affect the state of the air, sanitary protection zones are established (Art. 24 of the Law “On Protection of Atmospheric Air”). To determine safety for human health during the design, placement, construction of new and reconstruction of existing enterprises and other facilities, environmental impact assessment and state sanitary examination in the manner prescribed by law are conducted (Article 25 of the Law “On Protection of Atmospheric Air”). Finally, persons guilty of violating the rights of citizens to a safe environment for life and health are liable under the law (Article 33 of the Law “On Protection of Atmospheric Air”). The Forest Code of Ukraine1 contains only a reference to the protection of human health in the context of the basic requirements for forest management (Article 64). In particular, enterprises, institutions, organisations and citizens carry out forestry taking into account the economic purpose of forests, natural conditions and are obliged to strengthen water protection, defensive, climate regulation, sanitation, health and other useful properties of forests to improve the environment and human health. Declaratively, these issues are announced in the Laws of Ukraine “On Flora” and “On Fauna” . In particular, in order to protect the health of the population, the business entity may take measures to regulate the distribution and number of certain species of wild plants (poisonous, narcotic, quarantine, etc.) (Article 22 of the Law “On Flora”). Work related to the reproduction of natural plant resources is carried out in ways that ensure their reproduction in the shortest possible time and do not harm human health (Article 24). The Law “On Fauna” provides, among the basic requirements and principles of protection, rational use and reproduction of wildlife, the necessity to regulate the number of wild animals in the interests of public health (Article 9) and public safety (Article 32).

Instead, the Laws of Ukraine “On the nature reserve fund of Ukraine”, “On the Ecological Network” do not contain provisions for the legal provision of human safety in the natural environment. This is evidence of the limited impact of resource legislation on the creation of safe conditions for human life in the conditions of human's exploitation of natural objects and complexes that can adversely affect its health and life.

CONCLUSIONS

Thus, the general unfavourable state of the environment makes new demands on environmental security, which in the context of globalisation and internalisation of environmental problems is becoming a dominant factor in global security, as the environmental situation worsens, requiring effective policies to improve it. An important direction in the implementation of this process should be the mechanism of legal support of the system of scientifically sound quality standards of natural objects, resources and complexes, environmental impact assessment standards, environmental protection, which will ensure safe, as required by Art. 50 of the Constitution of Ukraine, for human life and health environment, and in the long run - favourable and healthy existence of human as a biological species in the natural environment.

Environmental law, especially in its subsectors on natural resources, should be focused on the main goal - ensuring human safety in the environment, its direct protection, respect for environmental rights, freedoms and interests. Ecological safety, environmental protection, rational use of nature and other ideological general ecological factors in the national legislation should be considered through the prism of safe conditions of human existence, life, health and evolution as a biosocial personality.

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