Case: Communication to the Aarhus Convention Compliance Committee regarding product-sharing agreements
Location: Ukraine, international level
Merits of the case: Compliance by Ukraine with its international obligations under the Aarhus convention on access to information, participation in decision-making and access to justice on matters relating to the environment
Parties: EPL – applicant, Ukraine – Party concerned
Main issues: During the preparation and signing of product-sharing agreements in Oleska and Yuzovska field the government of Ukraine has restricted access to information, failed to conduct an environmental impact assessment of the planned activity and provide any public participation and before signing product-sharing agreements issuing respective permits for subsoil use.
In 2013 during preparation and conclusion of the product-sharing agreements regarding Yuzivska and Oleska fields the government of Ukraine grossly violated the environmental rights of citizens of Ukraine, namely the right to access to the draft texts of such agreements, the right to a safe environment in connection with the failure of the government to carry out environmental impact assessment of such planned development, the right to participate in the process of adoption by the government of these strategic decisions, as well as EPL’s right to appeal these actions and inactions in court.
Failing to protect environmental right in national level EPL decided to turn to the Aarhus Convention Compliance Committee. The Compliance Committee of the UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters is the body of the Convention that reviews compliance of Parties to the Convention with their international obligations and is intended to help Parties to reach appropriate compliance with these obligations.
In late March, at its forty-eighth meeting (Geneva, 24-27 March 2015), the Aarhus Convention Compliance Committee considered the preliminary admissibility of communication PRE/ACCC/C/2014/118 concerning Ukraine submitted by NGO “Environment-People-Law” on 18 November 2014. According to the recent official letter of the Aarhus Convention Secretariat addressed to EPL and the Ministry of Ecology and Natural Resources of Ukraine, the Committee determined that the communication was admissible on a preliminary basis. This means that the case will be considered on the merits. The number of the EPL’s case on the web site of the Convention has dropped its preliminary prefix PRE and became permanent (ACCC/C/2014/118 Ukraine). The case materials (including the full text of EPL’s communication) can be found on the official web site of the Convention www.unece.org/environmental-policy/conventions/public-participation/aarhus-convention/tfwg/envppcc/envpppubcom/acccc2014118-ukraine.html
The Committee through the Secretariat officially forwarded the communication to the Government of Ukraine to get its response to the allegations expressed in the communication. According to the procedure, the Ukraine had five months from the date when the communication is forwarded to provide its response. Yet, Ukraine failed to do so up until late 2018.
Meanwhile in 2015, both Shell and Shevron withdraw from the agreements. Nadra Yuzivska became a sole investor in Yuzivska PSA. Yet being unable from both financial and technical points of view to develop the field, Nadra Yuzivska itself carried out a new tender to attract a new investor.
On Dec 18th 2018 the Cabinet of Ministers issued its consent for the assignments of rights and obligations under Yuzivska PSA to Yuzgaz B.V, approved 2 draft addendum agreements to the Yuzivska PSA and authorized the Minister of Energy to sign them on behalf of the Government of Ukraine. The new investor plans to immediately begin works with the goal of producing 20-30 million cubic meters of gas in 2019, and 100 million cubic meters of gas the following year. Under the basic scenario, investors plan to produce 1 billion cubic meters of gas already in 2022, and in three or four years to increase production to 6-7 billion cubic meters of gas per year and keep it at this level for 20 years.
On March 13, 2019, a hearing in communication # 118 with regard compliancy by Ukraine took place at the Aarhus Convention Complaint Committee sitting at the Palais des Nations in Geneva. After hearing the statements of the representatives of EPL and the Government and having received answers to a long list of detailed questions, the Committee announced:
- the Committee will not close the proceedings as requested by the Government and consider violations that took place in 2013-2014;
- through appropriate diplomatic channels, the Compliance Committee will formally contact the Government of Ukraine with a request for the texts of the Yuzivska and Oleska agreements as they will substantially facilitate the understanding of the content and legal nature of these documents by the Committee, which in turn will facilitate the resolution of the issue of compliancy (or non-compliance) Ukraine by its obligations under the Convention;
- the Committee plans to analyse in detail the legal relationship between the PSAs and permits for the use of subsoil, in connection with which will put a number of additional questions to the Government and EPL;
- the Committee, in spite of usual practice, will also consider the possible non-compliance by Ukraine in connection with the adoption in December 2018 of a government decision to grant consent to the assignment of rights on Uzivska PSA to a new investor;
- for this purpose, the Committee will also request the Government to provide addendum agreements by which the appropriate assignment of rights takes place.