The Aarhus Convention and Ukraine’s Pitiful Pretence at Compliance
Some crises are painfully predictable, but not entirely simple to avoid. Others, however, are caused exclusively by stubborn and doomed efforts to pretend they’re not there. Who they hope to convince is less than clear.
The Ukrainian Government received a rap on the knuckles in June 2008 over its failure to comply with the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters. In fact, the rap on the knuckles had come three years earlier, at the Second Meeting of the Parties in Almaty, Kazakhstan. What Ukraine got in June was a conditional caution, a last chance before a formal caution is issued on 1 May 2009. The Compliance Committee saw absolutely no evidence that the Ukrainian authorities had taken any measures to comply with the demands imposed three years earlier, not to mention with the broader aims of the Aarhus Convention.
The title of the Convention makes its importance perfectly clear, as does the fact that it is binding on all member states, including Ukraine.
In 2005 the Compliance Committee’s findings were damning. They included continued non-compliance of Ukrainian legislation with the Convention; failure to ensure that information was provided by the responsible public authorities upon request; failure to meet public participation requirements in environmental impact assessment (EIA) and environmental decision-making procedures for projects, etc.
In short, public participation was seriously lacking, through no fault of the public.
The Committee observes certain niceties and generally finds something to welcome. More often than not, unfortunately, this is the good intentions expressed, or "general measures" which the Government claims have been taken, but environmentalists see no evidence of. There is little else positive to be said, and in June last year the Committee concluded that even were the Action Plan to be implemented, Ukraine would still be failing on its obligations under the Convention.
In order to avert the scandal of a caution in May 2009, the Ukrainian Government is obliged to provide an Action Plan which this time deserves such a title. In brief, this means:
• specific measures to resolve the problems which the Committee pointed to in 2006, "including with respect to issues of clear domestic regulation of time-frames and procedures for public consultation";
• "capacity-building activities, in particular training of the judiciary and of public officials involved in environmental decision-making";
• procedure ensuring that the measures are implemented "in a transparent manner and in full consultation with civil society"
It should be noted that the measures assume "implementation by all ministries and other relevant authorities".
Before viewing the pitiful excuse for an Action Plan passed by the Cabinet of Ministers in December, it is worth stressing what is involved here. The Aarhus Convention is about commitment not just to a safe environment, but to the fundamental principles of democracy: public participation and the public’s right to information. Soviet-style behaviour by the authorities in totally ignoring civil society and opting for Potemkin facades instead of real measures is not only dense since the truth will out. It also, unfortunately, gives the lie to all fine phrases about the Ukrainian Government’s commitment to democracy.
The Ministry for Environmental Protection [MEP] has only once mentioned the Riga debacle. Now nobody likes revealing unflattering comments, but pretending they didn’t happen is not going to make them go away. One can only assume that each individual is somehow assuming that the problem will have vanished or been placed on somebody else’s shoulders by May.
Such illusions must be rejected out of hand. Whatever the Ukrainian authorities may believe, compliance with the Aarhus Convention is not a duty of MEP alone, but requires coordinated action and commitment from all "relevant authorities".
The Compliance Committee’s report in June required that the Ukrainian Government provide its Action Plan by 1 January 2009. An "Action Plan on Implementing the Decision of the Parties to the Aarhus Convention III/6f" was indeed passed by the Cabinet of Ministers on 27 December 2008 (№ 1628-i). It is difficult to understand what this document is supposed to achieve except defer the moment of reckoning for just a few months longer.
A large number of items are due for completion after May 2009, but what they in fact involve is far from clear. By September 2009, for example, MEP should draw up draft laws on amendments to legislation bringing them in line with the Aarhus Convention. One can assume that the amendments will be those demanded by the Compliance Committee back in 2005, and repeated in June 2008. On the other hand, no detail is given making it next to impossible to say that the item was not implemented. The same applies to other items listed.
In all cases the Ministry for Environmental Protection is solely responsible, allowing all other relevant authorities, including the Cabinet of Ministers, parliament, the President, as well as the Human Rights Ombudsperson to effectively pass the buck.
The formation is envisaged of an Inter-Departmental Working Group on ensuring Implementation of the Decision of the Parties to the Aarhus Convention (no mention of implementing the Convention itself, this is merely about the specific criticism and subsequent requirements imposed). The list of members does not include local self-government bodies, the law enforcement agencies, nor, most glaringly, any representatives of civil society. In fact there is virtually no mention of public participation in the Action Plan at all.
It should also be noted that the document passed by the Cabinet of Ministers consistently speaks of "information about the state of the environment" which has narrowed the scope of the fundamental concept of "environmental information" as set out in the Aarhus Convention. This is especially perfidious given the constant refusal by different authorities, at local and national level, to provide information of public importance. The new wording excludes information on the activities, measures, legislation, planning and programmes in the environmental sphere, economic analysis of spending and results with impact on the environment and people’s health and safety which is influenced by the state of the environment.
This then is where Ukraine stands in January 2009, with Ukraine’s authorities continuing to act as though May will never come, or to believe that they can convince the Aarhus Convention Compliance Committee, as well as their own population, that imitation is no different from the real thing. They haven’t got a hope and should understand this now while there remains a chance. What is at stake, after all, is not just a major international scandal and demonstration of bad faith, but issues of direct importance for the safety, health and future of Ukraine’s population – no small matter.
More information at: http://www.khpg.org.ua/en/index.php?id=1214138027
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