Some Transnational Aspects of Environmental Disputes in Kazakhstan and Its New Environmental Code

Abstract

Environmental tort litigation is widely seen as an appropriate mechanism to redress wrongs caused by pollution, oil spills and other kinds of environmental degradation. Victims and NGOs try to find ways to sue parent companies in their country of incorporation, which is usually different from the country where the harmful event occurred. Central Asia is a region where part of the population suffers from similar situations. Kazakhstan, for instance, is very rich in minerals and foreign and domestic extractive companies often damage the soil and the air quality of towns and communities in the vicinity of their operations. The practical disappearance of the Aral Sea, partly due to the inappropriate use of water by Uzbekistan, is another example. Environmental regulation and administrative fines imposed by the countries concerned leaves the prosecution of reckless industrial practices in the hands of the Government, in countries were collusion between Governmental cliques and extractive industries is well known and where courts are often poorly trained or far from independent. Cases of transnational environmental damage are also possible due to the large border that Central Asian countries share with each other, as well as with other industrial giants like Russia and China. In such a scenario, what are the chances of using tort law and civil litigation for victims and other stakeholders, especially in view of the new Environmental Code of 2021? Central Asian countries basically belong to the civil law tradition and are greatly influenced by Russian legislation. This means that tort law and conflict of laws are usually codified in civil codes and in codes of civil procedure. Heads of jurisdiction and applicable law rules are not that different from those of other civil law countries. However, those rules often display certain “nationalist” features in that nationals or residents of the country of the forum usually have easier access to court against foreign defendants, at least on paper.

Key words: Environment, Code, Litigation, Kazakhstan.