Publication

Enviromental rights

Chapter is prepared by Oleksandr Stepanenko, the executive director of EPO “Green world”, the head of PO “Helsinki initiative – XXI”.

 

  1. The right for safe environment

The Association Agreement between Ukraine and the European Union (EU) and the European Atomic Energy Community states that its parties will develop and strengthen the cooperation on environmental protection and contribute to achieving the purposes of sustainable development and green economy. The success of the association with the EU is impossible without large-scale “green modernization” of Ukraine’s economy and implementation of EU law sources of “Environment management and integration of environmental policy into other sectoral policies” sector. Instead the updated under the slogans of European integration Ukraine’s political elite is yet demonstrating the failure to realize the importance and complexity of their obligations towards European standards of environmental policy.

In Fundamentals (strategy) of the State Environmental Policy of Ukraine until 2020 it was defined its strategic goals. They are the following: improving the environmental situation and increasing the environmental safety, reducing human impact on the environment, achieving safe for human health environment and improving systems of integration of environmental policy for all areas and improvement of integrated environmental management, stopping loss of biological and landscape diversity and formation of ecological network, ensuring environmentally sustainable nature, raising public level of environmental awareness. At the end of 2015, one can state that strategic goals are still empty declaration.

The loss of state control over the environment condition is showed by the situation with the annual preparation and publication of the National Report on the environment condition. Over the last three years, the Ministry of Environment has not issued to the Parliament and not published regular national reports in violation of the Aarhus Convention and some laws of Ukraine.

A similar situation is recorded with the publication on the official web portal of the Ministry of Environment of regional reports on the environment condition[1], information about the objects that are major polluters of the environment[2], environmental passports of certain regions (e.g. Donetsk and Luhansk), information on the activities of Ukraine’s State Environmental Inspectorate (SEI) and its regional offices[3]. There are no background reports on the environmental situation in the ATO area during 2014, when there was active fighting. Obviously, monitoring of the war impact on the environment of Donbas has not been conducted at the appropriate level.

On the official web portal of the SEI there is an obvious lack of information on the results of state supervision over compliance with environmental legislation[4]. Annual Report of SEI for 2014 is 1 (one) text page![5] One of the important reasons for this situation is a moratorium on spot checks of SEI and government plans to completely eliminate the SEI, that are occasionally voiced by top officials of the Cabinet of Ministers.[6]

The long decline of the environmental policy in Ukraine is reflected in international assessments. Thus, according to the Index of the environmental efficiency, released in 2015, Ukraine took the 95th position among 178 countries, along with such countries as Zimbabwe, Antigua and Barbuda, and Honduras.[7]

The adoption of the Law of Ukraine “On ratification of the Protocol on Strategic Environmental Assessment” had been predicted in 2010 by the implementation strategy of the Espoo Convention, and in 2012 by the National Program of Ukraine legislation adaptation to the EU legislation.[8] Only because of lack of political will, the ratification of the Protocol was postponed from year to year. Too slow progress in implementing by the Government of the implementation Strategy of Espoo Convention was one of the reasons for finding by Meeting of Espoo Convention the failure of Ukraine to fulfill assumed obligations under the Convention.[9] Only on July 1, 2015 the Parliament by the President request finally adopted the long-awaited decision on the ratification of the Protocol on Strategic Environmental Assessment (SEA)[10], which is an effective legal tool in the system of planning and environmental management.[11]

Presidential Decree dated January 12, 2015 No. 5/2015 has approved the so-called “Sustainable Development Strategy “Ukraine-2020”[12]. This document received unequivocal critical assessment from many environmental organizations as such that in shape is more like a propaganda cliche of developed socialism day, than a development strategy of the modern country, profaning the concept of “sustainable development”.

Thus, the group of experts-developers of the Decree appeared to be not familiar with the concept “sustainable development”, adopted by the international community back in 1987[13], as well as with the “Agenda for the 21st century”, which outlined in 1992 the path of sustainable development for all UN members countries[14]. Fundamental tenet of sustainable development remained beyond the understanding of the authors of this document; the essence of this concept is that the environmental component should be equal and balanced along with two other components – economic and social. While reading the text of the presidential quasi-strategy one may be surprised by not only ignoring of the numerous UN documents on sustainable development, adopted over the past thirty years, including “Millennium Development Goals”[15], but also by ignoring of the direct EU requirement for mandatory integration of environmental component to development strategy of Ukraine, enshrined in the Association Agreement.

In view of this, the group of non-governmental environmental organizations sent a collective appeal to the President and Prime Minister of Ukraine. According to their assessment, such a deep nonprofessional approach undermines the credibility of Ukraine on the international arena and closes the opportunities for real and not covered with fashionable phraseology imitation reforms.[16] The authors of the mentioned collective appeal did not receive any proper and expected reaction.

On May 5, the President of Ukraine signed two progressive environmental laws: on amending legislation on biodiversity[17] and wildlife protection[18]. These particular amendments are related to Articles 85-1, 88-1 of the CUAO on sale and advertising and keeping of illegal guns prohibition. Fines for violation of lawful order of purchase, sale or distribution of animals and plants increased in 20-30 times. New laws have improved protection of the Red Book species of plants and animals in the protected areas of national parks, regional landscape parks, biosphere reserves all types of continuous and progressive logging, mining of sand and gravel in rivers, etc. were prohibited (Art. 18, 21 of the Law of Ukraine “On Nature Reserve Fund of Ukraine”).

 

  1. Environmental impact of the armed conflict in Eastern Ukraine.

The rules of the international humanitarian law for a long time did not include the direct regulation of environmental protection during the war. Only in 1976, UN adopted the “Convention on the prohibition of military or any other hostile use of impact means on the environment”[19], which was intended to limit the methods of military actions which may result in a change of natural processes, climate, etc. Ukraine and the Russian Federation are parties to the mentioned Convention as the legal successors of the USSR.

In 1990 Ukraine ratified the Additional Protocol (Protocol I, 1977) to the Geneva Conventions relating to the protection of victims of international armed conflicts and which for the first time recognized the environmental standards of behavior during military actions.[20] Thus, part 3 of Article 35 of the Protocol set out the prohibition to use methods or means of military actions that can cause widespread, long-term and severe damage to the environment.

Ukraine and the Russian Federation are parties of the Protocol III of prohibition or restriction of use of incendiary weapons to the “Convention on prohibitions or restrictions on use of certain kinds of regular weapons, which may be deemed to be excessively injurious or to have indiscriminate effect” (1980).[21] Part 4 of Art. 2 of the Protocol prohibits to convert forests into objects of attack using incendiary weapons, except when this is used to mask military facilities.

UN General Assembly Resolution dated February 9, 1993 “On environmental protection during armed conflicts”[22] calls on all states to abide the provisions of the international law on environmental protection during armed conflict, including through their inclusion in military regulations.

Military actions in Donbas, which even before the war was deeply problematic in terms of environmental safety, resulted in the unprecedented aggravation of regional environmental problems. Lack of the environmental monitoring throughout Donetsk and Luhansk regions, the virtual absence of supervisory authorities do not allow to assess the damage caused to the environment during armed confrontation objectively.[23] The risks, associated with communications damage, enterprises and other objects of high environmental hazard, are of particular importance and are often unpredictable.

The information that the Ministry of Environment publishes on its web portal in the form of information-analytical reports on the environment condition in the area of ATO and at the liberated territories, indicates the insufficient coverage of the fighting territory with measures of environmental monitoring. Thus, systematic monitoring of the air pollution was held in 2015 in Donetsk region only in three cities – Mariupol, Kramatorsk, Sloviansk; monitoring of the exposure dose of gamma radiation was held only in 8 observation objects of Donetsk and Luhansk regions.

From the information provided by the Ministry of Environment, it is known that in territories besides the governmental control in Luhansk and Donetsk regions economic activity is continued by enterprises, which are included in the “List of 100 objects that are major polluters of the environment in Ukraine”. Emissions of air pollutants and discharge of untreated wastewaters into water bodies are uncontrolled.[24] Shelling and mining of significant areas caused deforestation, shelterbelts, vegetation, soil cover damage, fires, destruction of potentially dangerous objects and objects that provide vital functions of settlements, which also causes pollution of air, soil, water etc. According to preliminary assessment of state authorities, the loss of forest species in 2014 because of fighting only in Luhansk region was more than 700 hectares. At the same time, mining of forests and adjacent areas hinder the creation of new forest species.

According to the ministry, it is impossible to calculate the damage caused by fighting to flora and fauna, air, water and land resources.

The study of the International charitable organization “Environment-People-Law” (EPL) stated that shelling from artillery caused the fire of several environmentally hazardous manufacturing facilities of Avdiiivka and Iasynivka coke-chemical plants, Lysychansk refinery and Kramatorsk machine-tool plant, “Tochmash” and “Styrol”. Because of outages of electricity a significant amount of hazardous substances was emitted in the air; chemicals because of the use of various weapons and burning chemicals contaminated soil and air; large areas of land resources, fertile soil, vegetation, protected areas were damaged. Mines were flooded, treatment facilities were damaged and left without power, because of the discharge of industrial and domestic water without purification; sewer networks were damaged; highways and infrastructure of public service for the collection and disposal of wastes were destroyed.[25]

At the round table “Military actions in Eastern Ukraine: risks and consequences for the environment and health” (Kyiv, January 22, 2015), the experts of EPL together with the representatives of the state shaped a package of proposals for executive authorities, civil society and international organizations in order to minimize the effects of war on the environment and public health.[26]

  1. Illegal mining of amber

During 2015 the “amber fever” gained unprecedented resonance at Polissia and Volyn – illegal mining and smuggling of amber. According to the assessments of experts, Ukraine annually produces about 4 tons of these precious stones that come only to 5% of actual production. As a result, the state annually loses tens of millions of dollars.[27] Spontaneous production leads to damage and complete loss of deposits and causes negative ecological consequences. Numerous representatives of marginalized sectors of Volyn, Zhytomyr and Rivne regions populations were involved in the illegal activity of amber mining and smuggling.

Ministry of Environment, State ecological inspection of Ukraine, public organizations have repeatedly made proposals concerning legislative strengthening of responsibility for illegal mining in particular through amendments to Art. 240 of the Criminal Code of Ukraine, Art. 47, 53, 53-1, 53-3 of the CUAO and development of certain draft laws. A year ago two draft laws “On mining and sale of amber” (No.1351 and No.1351-1) were registered in the Parliament, [28]  which were highly critically assessed by the Main legal department of the Parliament[29] and NGOs.[30]

It is clear that expectations for the effect of one law are useless.[31] The current problem cannot be solved only by target means of legislative regulation, since its reasons are in total legal nihilism and systemic corruption of power. After all, generally speaking, the analysis of the situation indicates the existence of a kind of neofeudal “amber republics” at Volyn and Polissia that characterizes the total inaction, complicity in crimes and impunity from public authorities, governments, landowners (mainly agricultural and forestry enterprises).[32] Certainly, the large-scale scheme of illegal enrichment from amber can work successfully for decades only on condition that their organizers have permission of all regulatory and law enforcement agencies – State environmental inspection and State department of geology and mineral resources of Ukraine, the Ministry of Internal Affairs, the prosecutors, the SSU, fiscal and border services.[33]


  1. State is trying to eliminate the security services of the protected areas.

During the year, a large number of national nature parks (NNP) and nature reserves experienced a coordinated wave of inspections of the State financial inspection of Ukraine (SFI), whose purpose was the elimination of the state security services. The inspections in the institutions of natural reserve fund (NRF), which for various reasons (mainly due to the sabotage of implementation of presidential decrees in terms of lands transferring by the State agency of forest resources) have not issued the right of permanent land use, resulted in criminal proceedings and lawsuits with charges in illegal spending of budget funds for the maintenance of security services. Logically charges – “if you do not have land to use – you do no need to keep security!” – the administration of the NNP “Dvorichankyi”, “Verkhovynskyi”, “Dnister Canyon”, “Kremenets Mountains”, “Slobozhanskyi” and others appealed in the court.

Obviously, in such a way – by financial inspections and by destroying the already destitute parks – this year the government decided to patch the budget “holes”. [34]

The legal position of the SFI was very weak in the court. The tasks of state security service of NRF are not limited by the protection of land ownership. It has much broader powers concerning the protection of natural systems, wildlife, plants and inanimate objects. Lack of documents for land use is not a reason for failure of basic functions and tasks assigned to the NNP, including the administration of the territory and ensuring of its security.

At the end of the year, it has become known that the NNP “Verkhovynskyi” [35] and “Dnister Canyon” won a case in the courts of first instance.[36]

 

  1. Recommendations

1) To overview “Sustainable Development Strategy “Ukraine-2020” in order to consolidate in it the principle of integration of the environmental component into all areas of state policy.

2) To adopt the Law of Ukraine “On Environmental Impact Assessment”.

3) To adopt the Law of Ukraine “On amendments and addendums to the Basic principles (strategy) of the state environmental policy of Ukraine for the period till 2020”.

4) To adopt the Law of Ukraine “On strategic environmental assessment”.

5) To ratify the “Protocol on the pollutant release and transfer registers” to the Convention on access to information, public participation in the decision-making process and access to justice in environmental matters.

6) To implement the requirements of the EU Water framework directive (2000/60 EU) into the national legislation.

7) To ratify the “Agreement on cooperation in the protection sphere and sustainable development of Dnister River Basin” between Ukraine and Moldova dated November 29, 2012.

8) To restore in 2016 the territorial bodies of the Ministry of Ecology and Natural Resources.

9) To strengthen the resource capacity and coordination of actions of the State environmental inspection, the Ministry of Ecology and Natural Resources, State Service for Emergency Situations, the State Hydrometeorological center, Ministry of Health, Ministry of Defense of Ukraine to perform their duties in war conditions, emergencies of natural and anthropogenic origin.

1 Chapter is prepared by Oleksandr Stepanenko, the executive director of EPO “Green world”, the head of PO “Helsinki initiative – XXI”.

2 http://menr.gov.ua/dopovidi/regionalni/

3 http://menr.gov.ua/index.php/control/control4

4 Last reports relate only to 2012.

5 http://menr.gov.ua/index.php/tsovv/dei

6 http://dei.gov.ua/menyu-3/2011-12-19-07-30-27/zv2014/2470-pro-rezultati-zdijsnennya-derzhavnogo-naglyadu-kontrolyu-za-doderzhannyam-vimog-zakonodavstva-u-sferi-okhoroni-navkolishnogo-prirodnogo-seredovishcha-za-2014-rik.html

7                  http://www.ecoleague.net/pozytsiia-vel-shchodo-ekoproblem/zaiavy-zvernennia/2015-rik/item/896-pozytsiia-vel-shchodo-likvidatsii-derzhekoinspektsii

8 EPI (Environmental Performance Index) is calculated by “Center of the environmental policy and law” at El University together with Columbia University and World economy forum: http://epi.yale.edu/epi/country-profile/ukraine; http://epi.yale.edu/epi/country-rankings

[8] http://zakon2.rada.gov.ua/laws/show/156-2012-%D1%80

The decree of the Cabinet of Ministers of Ukraine dated March 28, 2012 No 156-р

“On approving measures plan regarding the fulfillment in 2012 the National program of adaptation of Ukraine legislation to legislation of EU”

10 http://www.unece.org/fileadmin/DAM/env/documents/2008/eia/ece.mp.eia.2008.4.r.pdf

11 http://www.unece.org/ru/env/eia/sea_protocol_r.html

12 http://zakon3.rada.gov.ua/laws/show/562-19

13 http://zakon2.rada.gov.ua/laws/show/5/2015/paran10#n10

14 http://en.wikipedia.org/wiki/Our_Common_Future

15 http://en.wikipedia.org/wiki/Agenda_21

16  http://en.wikipedia.org/wiki/Millennium_Development_Goals

17 http://mama-86.org.ua/index.php/uk/ecologization/ecointegration-news/680-2015-03-12-11-50-42.html

18 http://zakon4.rada.gov.ua/laws/show/323-19

19 http://zakon2.rada.gov.ua/laws/show/322-19

 

 

20 http://zakon2.rada.gov.ua/laws/show/995_258

21 http://zakon4.rada.gov.ua/laws/show/995_c23

22 http://zakon1.rada.gov.ua/laws/show/995_j48

23 http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N93/086/94/IMG/N9308694.pdf?OpenElement

24 http://epl.org.ua/ekologija/dovkillja-ta-viina/doslidzhennja-epl/viiskova-agresija-ruinuje-dovkillja/

[24] The response of the Ministry of Ecology No. 5/3-17/14210-15 dated November 18, 2015 р. on the request on information of EPO “Green World” dated October 15, 2015

[24] “Military actions in Eastern Ukraine – civilization challenge to the mankind”, http://epl.org.ua/attachments/article/1713/1817_WEB_EPL_Posibnuk_ATO_Cover_Ukrainian.pdf

[24] “A year and a half Ukraine ignore the environmental consequences of war”

http://epl.org.ua/events/1931-pivtora-roky-ukraina-ihnoruie-ekolohichni-naslidky-viiny

[24] http://dt.ua/UKRAINE/na-volini-zi-strilyaninoyu-zatrimano-blizko-200-vidobuvachiv-burshtinu-186145_.html

[24] http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=53194

 

[30] http://epl.org.ua/events/2090-yurysty-vru-vystupaiut-proty-lobistskoho-burshtynovoho-zakonoproektu-abo-likbez-dlia-nardepiv

[30] http://epl.org.ua/events/1765-pravovi-aspekty-vydobutku-burshtynu-v-ukraini

[30] The response of the State Environmental Inspection of Ukraine on the request of EPO “Green World” dated November 27, 2015 No. 2/2 – 10/154 

[30] http://epl.org.ua/events/2090-yurysty-vru-vystupaiut-proty-lobistskoho-burshtynovoho-zakonoproektu-abo-likbez-dlia-nardepiv

[30] http://dt.ua/UKRAINE/sbu-znaye-hto-stoyit-za-nezakonnim-vidobutkom-burshtinu-trepak-191816_.html

[30] http://pechenegy.org.ua/ru/node/1177

[30] The decree of Ivano-Frankivsk regional administrative court dated July 24, 2015 in the case No. 809/2256/15

[30] http://greenworld.in.ua/index.php?id=1443455898

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