The war is not the reason for violating the Espoo Convention and damaging the environment

Since 2004, Ukraine has experienced problems at the international level due to non-compliance with the Espoo Convention provisions¹ during construction of navigation canal Danube-Black Sea through Bystre arm. Almost 20 years ago late Minister of Transport H. Kyrpa decided to construct the Danube–Black Sea canal through the core area of Danube Biosphere Reserve – Bystre arm – and violated provisions of the Espoo Convention concerning notification and transboundary consultations before the start of the construction works. Reaction of neighboring countries was fast: Romania addressed the Implementation Committee created under the Espoo Convention with the compliant against Ukraine on alleged non-compliance with the provisions of the Espoo Convention². While the Committee and other bodies of the Espoo Convention were considering this case, Ukraine started construction works, built the dams in the Black Sea at the entrance to Bystre arm and launched navigation.

In 2008, during the Meeting of the Parties to the Espo Convention³ Ukraine was declared to be in non–compliance with the Espoo Convention provisions (art. 2, 3 and 4) during construction of the Danube-Black Sea canal through Bystre arm. The Caution was issued to Ukraine as a sanction for violation of the Espoo Convention. Espoo bodies (Committee and MOP) in their decisions imbedded the obligation for Ukraine to provide a plan of actions on implementation of the Espoo Convention, to repeal its decisions on construction of the canal taken without transboundary consultations in accordance with the Espoo Convention, to draft and sign a bilateral agreement with Romania on implementation of the Espoo Convention in bilateral relationships. Despite the actions of Ukraine such as adoption of the Law on Evironmental Impact Assessment, provision of the road map on implementation of the Convention, expressed eagernes to suspend dredging activities and to cancel the decision on construction works, readiness to conduct impact assessment of the damage caused during the construction works and to develop the plan of compensation for such damage and its mitigation, there were no real and sufficient steps taken by Ukraine to implement its pledges.

At the Meeting of the Parties in 2020⁴, the case of Ukraine was discussed again. The Parties acknowledged that in spite of certain efforts taken by Ukraine and promises to start again the development of the canal project, to conduct EIA in a transboundary context with involvement of Romania, those efforts were not sufficient and thus the caution issued to Ukraine in 2008 keeps its effect. Thus, Ukraine received a homework: to shift from promises to actions.

Para 12 of the decision ECE/MP.EIA/30/Add.2 taken at MOP during 8–11 December 2020 mentions that MOP:

12. Reaffirms its decision IS/1 f and requests the Government of Ukraine to:
(a) Bring the Bystroe Canal project into full compliance with the Convention without delay;

(b)  Consult with Romania on the implementation of the road map⁵;

(c)  Continue regularly reporting to the Implementation Committee and to continuously inform Romania about the monitoring results;

(d) Provide Romania with a copy of the Research Report on analysis of the impact of the environment of the Danube River Delta⁶ for comments and observations;

So the update from Ukrainian side is the following: Ukraine started development of the reconstruction project “Creation of the deep-water navigation channel Danube-Black Sea in Ukrainian part of the delta”. In 2019, the branch of state company “Administration of sea ports of Ukraine” – “Delta–Lotsman” launched procurement call via Prozzorro for project activities, namely reconstruction of objects: «Creation of deep-water navigation channel Danube-Black Sea in Ukrainian part of the delta». Feasibility study (construction works and current repairment).

According to the EIA register, the Ministry of Environment has not received the documents necessary for EIA decision to be taken by the Ministry: the procedure of EIA of planed activity started, but the State Company “Administration of sea ports of Ukraine” published only a notification on the planed activity. Romania sent its comments to the notification on the planned activity in 2020 and expressed its willingness to participate in transboundary consultations.

After active dredging activities at the end of 2022 and beginning of 2023, the procurement was announced for the following activities: «Hydrological and hydro–chemical monitoring in Ukrainian part of the Danube delta during exploitation of deep–water route Danube–Black Sea», «Controlling monitoring studies during exploitation of deep–water route Danube–Black Sea (sea part)», “Ichthyological monitoring during exploitation of deep–water route Danube–Black Sea», «Monitoring of deep water soil dumping site during exploitation of deep–water route Danube–Black Sea and calculation of compensatory costs for pollution of water environment», «Monitoring of plant and animal habitats of coastal area of wetlands of the Danube Biosphere Reserve during exploitation of deep–water route Danube–Black Sea», «Monitoring of water ecosystems in the area of impact of renewal and exploitation of deep–water route Danube–Black Sea (by hydrobiological indicators)». Obviously, the State Company “Administration of sea ports of Ukraine” is trying to solve all previous concerns of Romania and to conduct all the necessary assessments, which will form the basis for future EIA report.

In November 2022, Ukraine and Romania finally signed the bilateral agreement on implementation of the Espoo Convention, including the procedure of notification on planed activity by the Party of origin, detailed procedure of access to documentation on environmental impact assessment, procedure of informing the public of affected country and consultations between parties, procedure of decision-making on joint activities, post project analysis and monitoring, creation of joint EIA commission. Such commission has to be composed from representatives of Ukraine and Romania and has to be created during 6 months from entry into force of this agreement. The Commission has the mandate to decide the claims concerning interpretation or application of the Espoo convention and agreement itself, review and foresee implementation of this agreement, create working groups, etc.

Nevertheless, such steps from Ukrainian side are not sufficient, as the most important points of the decision of the Meeting of the Parties are not implemented: the decision on the construction of the canal was not annulled, dredging activities are taking place prior to EIA decision and transboundary consultations, contrary to the MOP decision.

The dredging activities are raising concerns not only because of violation of international agreements by Ukraine, but also in the context of creation of damage to environment of the Danube river, fish resources, flora and fauna, risks to the normal operation of the Danube Bosphere Reserve. Administration of the biosphere reserve notified that dredged soil was dumped in deepwater dumping sites, although initial agreements were made for coastal dumping sites allowing to minimize the damage to water environment. By the letter dated 5.01.2023 the Danube Biosphere Reserve notified that at the end of 2022 during active dredging works involving 3 vessels, dredged soil was dumped in the river bed of the Danube, in the most deep areas. Those areas are wintering areas for commercial fish species and there is even a ban on commercial fishing in those areas since 1 November. Permits for such dredging works were not presented to the administration of the biosphere reserve, such documents are not available for the public. The monitoring of the effects on environment resulting from such dredging activities probably was not performed, thus it would be hard to assess the damage caused to the environment and compensate for this damage.

In addition, the Ministry of Infrastructure forced the government to adopt the decision on expansion of aquatorium of the port Izmail in November 2022⁷, and now lands of the Danube Biosphere Reserve are included into the port area, although the reserve has state land use certificate for water lands (coastal areas of the Black Sea and lands under the Danube straits). As the result, the state company will violate land legislation by using the lands of the protected area for navigation (transport) purposes. It is worth mentioning that the Danube Biosphere Reserve administration was not approached and did not agree to these decisions and activities affecting its territory. Such a decision of the government will have negative impact in the future in the form of conflicts between the guards of the reserve and port controlling services, will make impossible the protection of biodiversity at Bystre mouth and adjacent bar of the Black sea. Also, non–completed channel was included into the port area together with almost 100 km of the transboundary Danube river. The goal of this governmental decision is to facilitate dredging activities and by-pass permitting procedures (including EIA) and legislative requirements concerning regular dredging works starting from the Black Sea area and upstream along the Danube river to Izmail port itself. Such expansion of port aquatorium, as deemed by the Ministry of Infrastructure, meets the goals of renewed 2038 Strategy of sea ports development in Ukraine but the wording of the Strategy is silent about such expansion of Izmail port aquatorium. The strategy foresees the following tasks for Izmail port:

For short term, middle term perspective:

Support of the navigation depth levels in the aquatorium of sea port in line with announced levels, which also correspond to the depth level at the Danube-Black Sea channel;

Increase of effectiveness of using the exsisting loading facilities;

For the long-term perspective:

Renewal of fixed assets of state stevedore company;

Development of free perspective territories.

The factor affecting the achievement of strategic goals is expansion of access capacity of the roads to the seaport.

The Strategy states that deep water navigation channel Danube-Black Sea – is a separate facility, which was not supposed to be merged with the port area, but there was a goal to achieve the same depth for the two marine transport facilities.

On February 21, 2023, the news agency Ukrainian Ports wrote that the Ministry of Foreign Affairs of Romania called the ambassador of Ukraine in Romania to provide explanation on current dredging activities in Kiliya arm of the Danube river. Romania expressed its concerns about the dredging activities performed by Ukraine that are affecting joint sensitive environmental coastal area, and asked for access to the site. Romania is concerned that any dredging activities in water body of joint Danube Delta can affect wild nature of transboundary UNESCO biosphere reserve and world heritage site and will violate multilateral environmental agreements. Thus, Bucharest is asking for explanations concerning the types of dredging activities that were taking place in Danube river bed, and is also demanding suspension of such dredging works, if they are not connected with safety of navigation. In the meantime, Ukraine informed that it undertakes only the works aimed to ensure navigation to port Izmail.⁸ According to our information, the branch of the Administration of the Sea Ports of Ukraine “Delta Lotsman” are referring to the availability of a permission of the Ministry of Environment from 2015 for the works on water land areas⁹! Such a permission is not available in public domain. Thus, Ukraine has to provide explanation which permitting documents permitted the dredging activities in Bystre arm, exploitation of the navigation channel and who performed monitoring of environmental impact of these works.

The Ukrainian case of construction of a deep water navigation channel will be considered at the Implementation Committee meeting in December 2023, which will further channel its recommendations to next MOP. The committee has temporary suspended the consideration of compliance cases against Ukraine due to the war. But the recent developments around Danube (Bystre) case and active role of Romania will probably result in renewal of the case against Ukraine. Ignoring the decisions of the Espoo MOP and its bodies will result in more severe sanctions (not the caution which wasn`t effective) and worthening of neighborhood relations with Romania.

For more detailed information please address:

Olya Melen–Zabramna, head of legal unit, EPL

tel.032 2751534

Danube case http://epl.org.ua/law-posts/kanal-dunaj-chorne-more/