56
and will continue to build capacity at the same
pace in the next few years» [1]. A special law “On
support of renewable energy” was adopted in 2009,
Kazakhstan, which is criticized by both scholars and
entrepreneurs due to the accumulated problems of
its application in practice. This is explained with the
fact that our juridical science is behind the practice
and does not give clear answers on what legal
algorithm to develop this industry. We can agree
with the opinion that the practice shows “special
convergence of legal regulation of relations in the
field of primary non-renewable mineral and energy
resources use, primarily oil and gas, because they,
as subjects of legal regulation (in respect of which
legal norms are established), basically have a simple
chemical formula of oil mixture and range from
simple gaseous methane, consisting of a standard set
of molecules - one carbon atom and four hydrogen
atoms, CH4, to more complex octane С8Н18, a
component of crude oil” [2]. And we came to know
that it is the right time to implement both primary
and secondary non-renewable energy resources
as the necessity of complex regulation, exercised
by other countries in the field of law, taking into
consideration Kazakhstan law.
Taking into account the current realities of
RK energy complex development, it is vital to
use alternative and renewable energy sources,
development of private ownership of energy
resources, trends in the convergence of legal
regulation of non-renewable and renewable energy
sources, it is also necessary to expand the boundaries
of the “mining law”, which is based on relations
within the use and protection of natural resources
of the Earth. As we can see, the mining law, or law
on subsoil, has its own circle of regulated relations,
and it cannot provide the regulation of relations,
associated with the operation of the entire energy
sector, including wind, solar and other renewable
energy. But at the same time, there is a close
connection and interaction between these areas of
law. Firstly, subsurface use, which results in the
exploration and production of minerals such as oil,
gas, coal, ultimately aims at the extraction of energy.
Secondly, it is the mining law to regulate the use of
critical energy resources such as oil, gas and coal.
However, each of these sectors has its own goals and
objectives, principles and system, legislation.
All this demonstrates the need for careful study
and analysis of a range of public relations in the
energy sector and theoretical study of the energy
law, as a branch of Kazakhstan law. “Kazakhstan has
significant reserves of fossil energy sources. Proven
oil reserves are estimated at 30 billion barrels,
putting Kazakhstan on the 10th place in the world on
this indicator. Reserves of uranium (more than 800
thousand tons) Kazakhstan ranks the second in the
world after Australia, and in terms of its production
- the first. The accumulated potential in the mining
and metals sectors creates the opportunities for
expansion of added value chains and development
of related services.
There is a high potential for developing the
renewables (further – R). In particular, the potential
of wind energy development is estimated at more
than 900 billion kWh a year. Feasible power of solar
energy development in Kazakhstan makes from 1
300 kWh to 1 800 kWh per square meter. Also there
is a considerable potential for bioenergy production.
Possibilities of the hydroenergy sector development
are estimated approximately at 22 GW, about 10%
of which are mastered now» [3].
A logical question arises: can we talk about
the formation of energy law as a branch of law?
According to the majority scholars’ point of view,
formation of independent law branch is set to the
following conditions: «a) degree of originality of any
relationship; b) their share; C) inability to resolve
the relationship with the rules in other sectors; d)
necessity of using a special control method» [4].
According to N.B. Mukhitdinov the principles,
functions, industries are of a particular value in
the question of recognition of group norms as law
branches, as well as two interrelated factors: first,
internal ordering of the rules, allowing them in their
unity to act as an independent element of the legal
system in general; secondly, ability of this group of
legal norms to interact with similar elements of a
single system of law [5].
In our opinion, energy law can be recognized as
a branch of law, because it meets the above criteria.
First, it is the existence of relations in the sphere
of the power complex functioning in the country,
starting with production and ending its delivery to
a consumer. It is a huge conglomerate of the energy
relations arising concerning energy. What is energy
as an object of law? “Energy as a subject of legal
regulation is characterized by the unique features
and signs, distinguishing it from other subjects and
phenomena of the material world. These features in
many respects predetermine the need of independent
regulation of the energy relations, including all
the complex of problems, connected with natural
resources energy transformation into the mankind
benefits. And not accidentally in the theory of law it
is postulated that many of the problems, associated
with the regulation, are rooted not in the act of
regulation, but in the regulated object - in our case,
57
Гражданское и гражданско-процессуальное право
it is the energy and power. As the importance of
energy, including electrical energy, to ensure all the
aspects of life in modern society is quite significant,
we need the independent comprehensive legal
regulation of the relationships, associated with the
production (generation), purchase and sale, transfer
(transportation) and energy consumption» [2, p. 5].
The legislation of Kazakhstan does not contain
a definite answer to what energy is. The Civil Code
of RK contains a number of articles, regulating
the order and conditions of implementing the
contract of power supply, in other words, civil law
considers energy as a transaction subject, as goods.
The law on power supply provides the definition
only for energy resources as a combination of
natural and manufactured carriers of energy, stored
energy of which is currently used or may be used
in future economic and other activities, as well as
the forms of energy (nuclear, electrical, chemical,
electromagnetic, thermal and other forms of energy),
(Article 1 of the law “On energy saving and energy
efficiency”) [9]. In the legislation on renewable
energy the following definition is introduced[8]:
these are the sources of energy, continuously
renewable due to natural processes, including
the following types: solar radiation, wind energy,
hydraulic energy of water; geothermal energy:
heat of soil, groundwater, rivers, ponds, as well as
anthropogenic sources of primary energy resources:
biomass, biogas and other fuels from organic wastes,
used for the production of electrical and/or thermal
energy.
If we consider the relations in the sphere of the
energy complex functioning, they are diverse. In
a broad sense they include the relations, arising
in the sphere of exploration, extraction and use of
minerals, the final processing of which is aimed at
energy production. Secondly, these are the relations
in the sphere of nuclear, atomic energy use. Thirdly,
these are the relations, arising in the process of
using alternative energy sources, and finally, the
relations, arising in the field of electricity, gas and
others. Fourth, these are ownership, other laws and
contractual relations. The most basic combines all
these relations, which is the production and use
of energy as “special” goods, “goods”, without
which we cannot imagine our life activity, its
presence indicates the stability and sustainability
of economic, and if you want, political activities
of the country in regional and global scales.
Existing Kazakhstan legislation regulates the entire
range of these relations, but without taking into
account their main unifying beginning. Just the
same, it complicates the process of effective legal
regulation of the whole complex of power relations.
We support the position that “we do not regulate
power, relations, associated with the production,
generation, use and consumption of energy; we
regulate separate primary energy sources, energy
resources, mineral and energy resources and their
use”. Actually, Kazakhstan legislation is based on
the principle of regulating relations in the sphere of
subsoil use, use of nuclear and alternative energy.
The use of services in the energy sector often remain
outside the attention of a legislator, “therefore,
further improvement of legislative regulation of
activities in the energy sector should be based on
strategic options industry development, and on the
experiences of law enforcement” [2].
Can we talk about the presence of energy
legislation in Kazakhstan? Definitely, we can,
because all these relations are regulated by the
complex regulations. For instance, relations in the
sphere of exploration, extraction and use of minerals
in the Earth bowels are governed by the law “On
subsoil and subsoil use” [6]. The public relations
in the field of atomic energy use are governed by
the law “On atomic energy use” [7]. Along with
it there are laws “On support of renewables use”
[8], law “On power supply and energy efficiency”
[9], law “On gas and gas supply” [10] and others.
All the above suggests that in the legislation of
Kazakhstan energy legislation is established and
steadily growing, which includes normative legal
acts of different levels.
In general, the system of legal regulation and
energy complex includes several levels in itself.
Namely, elements of common law and special
legislation, which contains special provisions,
reflecting the specifics of this sphere of relationships.
General legislation is represented by: RK Civil Code;
RK Land Code; RK Tax Code; RK Budget Code; RK
Customs Code, etc. But there is also special laws –
on subsoil, on renewable, on power supply, on gas
supply, on atomic energy, etc. Thus, we see there
are several levels of legal regulation: general and
special legislation, as well as developed technical
regulation, and, finally, regulation of international
legal in the form of, firstly, international agreements.
It is an objective and logical process, which is
typical for all countries, due to the fact that power
relations are regulated by the state to the desired
extent, what is testified by the history of energy
development of the society and state, especially
after the energy crisis and the “Arab Oil Embargo”
of 1973 [11]. The degree of originality of power
relations, their specific weight and inability to
resolve relationships with norms of other law
№ 3 (39) 2015 ж. Қазақстан Республикасы Заңнама институтының жаршысы
58
branches require such legal mechanisms of
legal regulation of these relations, which would
correspond to the modern principles of energy
security of the country, which were first used in the
USA in 1947, when the legislative document was
adopted, “regulating actions of the state in the sphere
of national security” [12]. I.S.Shchepanskiy writes
that “energy security is an important part of national
security and is closely linked with environmental,
resource, economic, industrial, radiation and other
types of security. Its provision should be on the local
(production), regional, national, and international
(global) levels, taking into account the principles
of sustainable development, involving the right
of citizens to favorable environment, rational use
of natural, including renewable resources, more
rapid adoption of effective measures to prevent
environmental degradation, environmental and
technological disasters” [13]. It is important not
to confuse the concept of “energy security” and
“security of power engineering”. If in the first case
we are talking about warranty for energy delivery to
consumers; secondly, it is only about the domestic
stability of the functioning of energy complex in
the country. For Kazakhstan, and as for Russia,
energy security in many manifestations has sharp
interrelated environmental, economic, social and
political character [14].
Now there are three approaches to energy
security [15]. Kazakhstan should choose its
own path of energy security, not forgetting its
international obligations, for instance, the EU
Directive on renewable energy, which provides a
number of mandatory national targets for the share
of renewable energy [16].
As we see, new tendencies of ecological and
power policy of the EU required the review of
Kazakhstan power policy principles and maintenance
of the relations with the EU. Since 1996 Kazakhstan
began preparing for accession for the Kyoto
Protocol; on March 26, 2009 Kazakhstan ratified
it, within which the measures for creating national
system of monitoring and reporting on greenhouse
gas emissions, state register of carbon units, national
plan of quota distribution, and also creation of the
quotas trade market are taken [17].After signing of
Kyoto Protocol, Kazakhstan started creation of a
standard basis for supporting the renewables [18].
The positive result of state regulation in this area
is creating favorable conditions for construction and
operation of objects on the use of renewables and
stimulating production of electric and (or) thermal
energy with the use of renewables [8].
As the statistics shows, according to the volume
of greenhouse gas emissions in the atmosphere the
main pollutant is the country’s energy sector. The
ecological legislation of the Republic of Kazakhstan
holds a policy of tightening environmental
requirements in this area. Following the policy
of “green” development, in 2013 Kazakhstan
introduced serious innovations in the system of state
regulation in the sphere of emissions and removals
of greenhouse gases into the Ecological Code [19].
As a primary method of reducing emissions by more
than 20% in the EU the Emissions Trading System
was proposed, allowing “to urge” energy market
participants by the market methods to introduce
innovations and widely use possibilities of alternative
power engineering. Kazakhstan successfully adopts
positive European experience and introduces the
trade market in quotas for greenhouse gas emissions
and other market mechanisms, directed on reducing
greenhouse emissions. For instance, National Plan
of distributing quotas for greenhouse gas emissions
for 2014-2015 is approved [20], in which the total
amount of quotas for greenhouse gas emissions
economic branches and volumes of quotas for nature
users are established.
Regulation of the relations in this sphere involves
almost all the branches of law, which is explained
by the fact that power relations are complex in their
content. For instance, ownership and contractual
relations are governed by the civil law, responsibility
- administrative, criminal and civil laws, etc. All of
the above suggests that we are dealing with a new
and rapidly developing area of law - energy law,
which has its own subject of legal regulation, its
own system of law, principles of legal regulation
of these relations. And, most importantly, it has the
state will and interests in the regulation of energy
relations.
It should be noted that there is a close relationship
between environmental and energy law, which is
due to the dynamic interaction and interdependence
between the environment and its components, on the
one hand, and energy, on the other hand, the main
sources of which are natural resources themselves.
Environmental standards and requirements for
energy complex activities are established in the
environmental legislation, which tends to constant
tightening. It is, in general, a global trend. Ensuring
environmental security requires to be considered
when determining the energy strategy of each state,
and, vice versa, in order to ensure energy security
for the future we should be find out forms and
methods of ensuring rational use and protection of
mineral resources of the country at the legislative
level, involvement in the market of alternative
59
Гражданское и гражданско-процессуальное право
energy sources. The European experience of solving
problems in this area clearly demonstrates above
mentioned.
3. Summary and Conclusions
The energy law should be considered as a branch
of law, which is characterized by the existence of
subject unity of public relations, specific legal
principles, and independent sources of law.
In the market conditions energy relationships
underwent cardinal changes which affected the level
and parameters of their legal regulation. In the sphere
of the energy relations it is observed simultaneous
strengthening and interaction of imperative
(public) and dispositive (private) beginnings in
legal regulation, which testifies that the modern
energy law represents public and private branch of
law. According to the Constitution of RK subsoil
is a state ownership, and the state as the owner on
the one hand and as the representative of interests
of RK people, on the other hand, defines a legal
regime of subsoil, namely the order and conditions
of carrying out operations on subsurface use [21].
In the regulation of energy relations it is necessary
to use private and public, proceeding, starting from
the combination of enterprise freedom to the state
regulation by means of laws, but not individual acts.
The state has to ensure stability, safety, availability
of power sources, profitability in their use, ensuring
our national interests. As we noted above, state
interests in the field of energy security are public.
This is because during the formation of “public
interest” concept must proceed from the fact that:
1) interest as a phenomenon is closely linked to the
needs, specifics of which determines, ultimately,
the content of interests; 2) basis of public interest
forming lies in needs, perceived as their own subjects
(by people, state and society). It is the scale of needs
does the interest public; 3) means of meeting these
general requirements should be legal and assume
overall construction of the rule of law. [22].
It is essential to utilize energy relations in
terms of private and public needs, on the basis
of a combination of entrepreneurial freedom in
accordance with the state regulation through
legislation rather than individual acts. The state is
obliged to ensure the stability, security, availability
of energy sources, efficiency in their utilization
ensuring our national interests.
The energy legislation of sovereign Kazakhstan
underwent serious changes. First, under the influence
of power market transformations its normative base
is updated and enriched: there are new directions of
legal regulation (for instance, alternative sources of
energy, renewables, fixed tariffs, about production
sharing agreements, about power industry, about
gas supplies, about nuclear power, etc.) . Secondly,
the structure of power legislation has been changed.
Establishing and developing of legal norms on
alternative renewables, power industry, gas supplies,
nuclear power is observed. Thirdly, the legislation
emphasizes complex specialized contracts, which
contain not only private-legal, but also public
beginnings. Considering close interrelation of the
energy legislation and law, it is possible to note that
development of the first has impact on development
of internal structure of the power right that leads to
changes in it.
References
1. The Republic Of Kazakhstan. On the approval of the Concept for innovative development in the
Republic of Kazakhstan till 2020: The decree of the President dated June 4, 2013 No. 579// adilet.zak. 2014
2. Lakhno P.G. Energy law is a reality. Lawyer.2008. No. 10.p.5
3. President of the Republic of Kazakhstan. About the Concept on entry of Kazakhstan into top 30 most
developed states in the world: Decree dated January 13, 2014 No. 732//adilet.zak. 2014
4. Alekseyev S.S. Structure of the Soviet law. - M., 1975. - 264 p.
5. Mukhitdinov N.B. Bases of mining law. - Alma-Ata, 1983. -248 p., p.24-25
6. The Republic of Kazakhstan. On atomic energy use: Law dated April 11, 1997, No.93. //adilet.zan.
kz.2014.
7. The Republic of Kazakhstan. On support of renewables use: Law dated July 4, 2009, No.165-IV//
adilet.zan.kz.2014
8. Republic of Kazakhstan. On supporting the use of renewables: Law dated July 4, 2009 No. 165-IV//
adilet.zan.kz
9. The Republic of Kazakhstan. About energy saving and energy efficiency: Law dated 13 January, 2012
. № 541-IV adilet.zan.kz.2014.
10. The Republic of Kazakhstan. On gas and gas supply: Law dated January 9, 2012, No.532-IVadilet.
zan.kz.2014.
№ 3 (39) 2015 ж. Қазақстан Республикасы Заңнама институтының жаршысы
Достарыңызбен бөлісу: |