Nataliia R. Malysheva. Terminology of environmental law in the context of constitutional reform in Ukraine
Environmental and legal terminology of the current Ukrainian Constitution is critically comprehended in this article. The comparative analysis of the key concepts of Environmental Law, namely: «Environmental Protection», «Protection of the Natural Environment», «Nature Conservation», «Ecological Safety» has been performed. Their relationship to each other, as well as their systematic correlation in legal regulation of the specific area are analyzed. In particular, it has been justified that the notion of «environmental protection», entered into legal turnover by the Constitution of Ukraine (articles 50, 85, 119), after its adoption started to be applied as a synonym to established notion «protection of the natural environment», that caused the confusion in the regulated area. The author is of the view that the notion «environment» (in Ukrainian – «dovkillia») is a broader (generic) term with regard to specific concept «natural environment», since in addition to the natural one it covers the production, housing and other closed environments. It is highlighted that there is a need of unified application of the notion «protection of nature», that today is also applied in the legislation in different contexts, also as a synonym to the «protection of the natural environment». This notion should be applied only for definition of system of measures regarding conservation in the most pristine state of certain natural objects and complexes, territories of particular state protection.
Having analyzed the applied in the Constitution of Ukraine notion of «environmental safety», the conclusion is made regarding the need to legally «split» the constitutional notion «safe for life and health environment», that is oriented exclusively on human (article 50 of Constitution) and «ecological safety» (article 16 of Constitution) that has a significantly broader meaning covering the state of safety also of other elements of ecosystem, primarily, of biological resources (flora and fauna).
The terminological peculiarities of the constitutional dispositions governing the ownership over natural resources have been examined; the proposals on amending the provisions concerning objects and subjects of the rights over natural resources were made. Problematic, in particular, is the allocation of air to the objects of ownership because its physical state and capacity for continuous movement makes it impossible to allocate part of this resource as being within the territory of Ukraine. According to international law it is not quite correct to refer to the objects of ownership of natural resources the continental shelf and exclusive (maritime) economic zone of Ukraine, because on such resources Ukraine has sovereign rights for the purpose of their exploration, development and preservation. Particularly problematic is the allocation of air to the objects of ownership because the physical state and capacity for continuous movement makes it impossible to allocate part of this resource as being within the territory of Ukraine. The Constitution defines the Ukrainian people as the subject of ownership of natural resources. As a result of the performed analysis the proposals are made to bring this part in conformity with some controversial provisions within the Constitution itself, and with some acts of legislation in force.
One of the key achievements of environmental component of the current Constitution of Ukraine was the enshrinment of ecological function of the Ukrainian state as one of the main ones. During the analysis of constitutional regulation of the ecological function in Ukraine the author thoroughly examines all 4 directions of the function implementation. Herewith the attention is drawn on necessity to clarify the concepts of «maintaining of ecological balance», «preservation of the gene pool of the Ukrainian people» and some others.
Suggestions for improvement of environmental and legal terminology during the constitutional reform in Ukraine have been made.
Key words: terminology, environmental protection of the natural environment, natural conservation, ecological safety, objects of the proprietary rights over natural resources, the Ukrainian people as a subject of property rights, ecological balance, genetic pool.