Case: Danube-Black Sea Canal
Region: Europe, Ukraine, Odessa oblast, Vylkovo city (map)
Essence of case : Protection of the biodiversity of the Danube delta
Parties: President of Ukraine, Cabinet of Ministers of Ukraine, Ministry of Transport of Ukraine, SE “Delta Lotzman”, Ministry of Environmental Protection of Ukraine, National Academy of Sciences of Ukraine, Danube Biosphere Reserve, local self-government bodies in Odessa oblast
Essence of problem: Government of Ukraine builds the canal Danube-Black Sea with the purpose to renew navigation on the Ukrainian part of the Danube delta
The whole Ukrainian part of the Danube delta is included into the Danube Biosphere Reserve due to the high natural value of its territory and rich biodiversity.
The construction of the Danube – Black Sea Canal endangers biodiversity conservation of the Danube delta, and the process of decision-making on canal is carried out with violations of the national legislation and international obligations of Ukraine in the spheres of nature protection and public participation.
Main facts:
The case is processed on the national and international levels.
National level:
The withdrawal of straits and internal ponds from the Danube Biosphere Reserve
Challenging of the environmental expertiza conclusions
- regarding the Technical and Economic Assessment of Investments
- regarding the I-st phase of the Danube-Black Sea canal construction
- regarding the II-nd phase on the Danube-Black Sea canal construction
Challenging of the Decree of the President of Ukraine
Withdrawal of straits and internal ponds from the Danube Biosphere Reserve
With the purpose to facilitate construction of the Danube-Black Sea canal through the core zone of the Danube Biosphere Reserve (DBR), Vylkovo Town Council initiated court proceedings, aimed at withdrawal of straits and internal ponds from the territory of the reserve.
Kilijska Region Council is the defendant in court, DBR is the third party intervener for defendant.
The Commercial Court of Odessa oblast made a decision on case, and declared illegal the State act on the right to permanent land use, issued to Danube Biosphere Reserve.
Kilijska Region Council filed an appeal to the Appeal Commercial Court of Odessa oblast and it left previous decision of the local court in force.
Supreme Commercial Court of Ukraine considered the cassation and left in force all the previous court decisions. Appeal of this decision to the Supreme Court of Ukraine was dismissed.
DBR filed an application for the reconsideration of the case due to exceptional circumstances to the Supreme Court of Ukraine. On 13 November 2007 the administrative panel of judges cancelled all the previous decisions of commercial courts that allowed withdrawal of Bystre arm from the territory of DBR. Supreme Court sent the case back to the court of first instance for the reconsideration. Thus, the decision of the Supreme Court renewed the legal force of the permanent land use certificate issued to DBR.
Commercial Court of Oddesa region sent the case to Odessa District Administrative Court and later sent the case back to Kiliya rayon court of Oddesa region. Identical administrative suits (instead of commercial suits) were filed to administrative and commercial courts in 2008 and in 2009 by Vylkovo town council, but they were left without consideration. The case is still pending.
Challenging of the environmental expertiza conclusions
EPL filed a suit against the ministry of Environment of Ukraine challenging environmental expertiza conclusion №105 regarding the Technical and Economic Assessment of Investments (TEA ) of construction of the Danube – Black Sea deep – water navigation canal on the Ukrainian part of the Danube delta.
Kyiv Commercial Court ruled in favor of EPL and declared invalid the environmental expertiza conclusion N 105 of July 10, 2003.
Kyiv Appeal Commercial Court annulled first instance court’s decision on the appeal, filed by the Ministry of Environment. On the basis of the cassation, filed by EPL, Supreme Commercial Court of Ukraine left in force the Appeal Court decision. New cassation of EPL on Supreme Commercial Court’s decision to the Supreme Court was dismissed.
EPL filed a suit against the Ministry of Environment of Ukraine challenging environment expertiza conclusion №191 regarding building project of the Danube-Black Sea Deep-Water Navigation Canal on the Ukrainian Part of the Danube Delta- Ist phase and asking to provide us with EIA documentation (Environmental Impact Assessment) of the Ist phase.
Kyiv Commercial Court made a decision to dismiss EPL suit. EPL appealed this decision to Kyiv Appeal Commercial Court, which took the analogical position and decided to dismiss our appeal. EPL filed the cassation to Supreme Commercial Court of Ukraine.
On April, 19, 2005 Supreme Commercial Court of Ukraine decided to partly rule in EPL favour and annulled the decision of Kyiv Appeal Commercial Court and stopped the proceeding in this case.
In 2006 EPL filed a suit challenging the conclusions of additional environment expertiza of building project of the Danube-Black Sea Deep-Water Navigation Canal. Full development. (IInd phase) №324 of 22.02.06 and №345 of 19.04.2006 to the Commercial Court of Lviv region.
On May, 22, 2007 the Commercial Court of Lviv region decided to stop the proceeding in this case. EPL challenged this decision in appeal court and later ruled in EPL favour in 2008 and send the case back to the court of the first instance for reconsideration.
On November 27, 2008 the Commercial Court of Lviv region decided to rule in EPL favour and declared illegal the conclusions of additional environment expertiza of building project of the Danube-Black Sea Deep-Water Navigation Canal. Full development. (IInd phase). The Ministry of Transport and “Delta-Pilot” filed appeals. Lviv Administrative Appeal Court ruled to stop the proceeding in this case based on their conclusion that this is not an administrative dispute. EPL filed a second appeal on the decision of appeal court to the High Administrative Court of Ukraine.
Challenging of the Decree of the President of Ukraine in court
A citizen, Skrylnikov D., filed a complaint to the local court of Pecherskyi region of Kyiv city challenging Paragraph 3 of the Decree of the President of Ukraine of June 6, 2003 amending the President’s Decree from August, 10, 1998 N861 “On the creation of the Danube Biosphere Reserve” and on the perspectives of the construction of the navigable canal Danube- Black Sea”.
The local court of Pecherskyi region of Kyiv city rendered a decision to dismiss the complaint of the citizen D. Skrylnikov. D. Skrylnikov did not agree with the decision and appealed it to the second instance court.
International level
- Espoo EIA Convention
- Bonn Convention
- AEWA
- Aarhus Convention
- Danube Convention
- European Commission
- IUCN
- Ramsar / UNESCO
- Bern Convention
Espoo Convention
EPL filed formal complaint to the Secretariat of the Espoo Convention and Implementation Committee of the Espoo Convention regarding violations of the Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention) by Ukraine.
Implementation Committee of the Espoo Convention considered our complaint (the first complaint ever submitted to this Committee ) and suggested sending additional information on any significant adverse transboundary impact that canal construction in the Bystre mouth would pose.
On December 16 –18, 2003 at its meeting Espoo Implementation Committee refused to consider EPL’s complaint submitted to the Secretariat.
In May 2004 the Government of Romania submitted its own formal Complaint to the Espoo Implementation Committee on Ukraine’s violations of the requirements of the Espoo Convention, initiating the consideration of the question on transboundary effect by the Inquiry Commission.
Inquiry Commission met on 26 January and 24 February 2005 and made a field visit on 10-16 April, 2005. It finished its work on 10 July, 2006 and issued its final decision on the impact of canal project on the environment (http://www.unece.org/env/eia/documents/inquiry/Final%20Report%2010%20July%202006.pdf). Commission’s conclusion was that the project will have adverse transboundary impact on the environment.
On January 23, 2007, Romania addressed second complaint to the Implementation Committee due to the lack of any actions concerning the conclusion of the Inquiry Commission.
During the 4th Meeting of the Parties of Espoo Convention (Bucharest, May 2008) parties decided to take Decision IV/2 to issue caution to the government of Ukraine that will take effect on 31.10.2008 unless the government of Ukraine fails to fulfil three conditions: to suspend all the works on phase I and II of the canal, to repeal the final decision concerning phase II, to adhere to the provisions of Espoo Convention during assessment and implementation of this project.
Following the decision of the Meeting of the Parties the government of Ukraine decided to repeal the final decision from 28.12.2007 concerning phase II of canal construction.
During the meeting of the Implementation Committee in October, 2008 in Geneva the report of the government of Ukraine on compliance with the MOP decision IV/2 taken in May 2008 was evaluated. As the result of additional clarifications provided by Ukraine the Committee decided (http://www.unece.org/env/documents/2008/eia/ic/ece.mp.eia.ic.2008.2.r.pdf) not to enforce caution against Ukraine as far as any works on phase I and II are suspended and the final decision concerning phase II was repealed.
On March 2009, the Secretary General of UNECE sent a letter to Ukraine stating that following its report of 27 February 2009 the Committee decided that Ukraine did not prove the suspension on any works on phase I as was requested. The Committee was worried that Ukraine proceeded with phase II of the project and with the government attempts to hide this fact. The Committee was concerned by constant ignoring of Espoo provisions by Ukraine and asked to submit the statement to the Secretariat stating that Ukraine is familiar with violations and is ready to suspend requested works and provide evidence of such suspension. Ukraine was requested also to provide evidence that Espoo Convention provisions are being followed during phase I and phase II.
In September 2009, the Implementation Committee considered the report of Ukraine and confirmed the decision IV/2 requesting the suspension of all works on phase I and II (Bystre project). Committee decided on continuous violation of Espoo Convention and Committee’s decisions by Ukraine. Committee decided that Ukraine continues the violation of its obligation concerning both phases and thus decided to bring this issue to the next MOP and issue the recommendation to bring the caution into affect or issue new caution.
On January 2010, three Ministers of Ukraine signed the Final decision concerning phase II of the Danube-Black Sea canal project allowing its implementation preceded by the completion of EIA in transboundary context of phase II of canal construction.
Next MOP of Espoo Convention is scheduled for summer 2011.
Aarhus Convention
In May 2004 EPL filed formal complaint to the Compliance Committee of the Aarhus Convention that initiated official consideration of the violations of the citizens’ environmental rights in the process of planning and construction of the Danube – Black Sea Canal by Ukraine.
In May 2004 the Government of Romania submitted its own official complaint to the Compliance Committee of the Aarhus Convention.
On February 18, 2005, the Committee found that Ukraine was not in compliance with article 3, 4 and 6 of the Convention.
The Committee adopted several recommendations, requesting Ukraine to bring its legislation and practice into compliance with the provisions of the Convention, requesting to submit a strategy (including time-schedule) for transposing the Convention’s provisions into the national law and developing practical mechanisms and implementing legislation that sets out clear procedures for implementation of various requirements under the Convention.
During 2005-2008 Ukraine failed to actively implement the decision of the MOP, the governmental strategy was of very poor quality.
Third MOP of Aarhus Convention (2008, Riga) took a decision ІІІ/6f concerning Ukraine’s obligations stating for the second time that Ukraine violates the provisions of Convention, does not actively participate in discussions concerning its non-compliance and does not implement the decision of the second MOP (Decision II/5b).
By the letter of the Executive Secretary of UNECE to Ukraine on April, 2009 it warned Ukraine on the threat of new caution due to non-compliance with the MOP decision. Later in October 2009 it send next letter to the government of Ukraine reiterating the position of the Committee concerning Ukraine and suggesting more strict sanctions against Ukraine due to its inability to suspend works on both phases. As a result the Committee will recommend the next MOP in 2011 to enforce caution against Ukraine to be effective since October 2008.
Danube Convention
In May 2004 EPL filed an emergency complaint to the International Commission for the Protection of Danube river on violation of the Convention on Cooperation for the Protection and Sustainable Use of the Danube River by Ukraine
We received the response from the International commission for the protection of the Danube river (ICPDR) on our notification. The Commission confirmed its concerns about the canal building project and the possible environmental effects it may have both in the Danube river and the Black Sea ecosystem.
In December, 2003 at its ordinary meeting ICPDR passed a resolution , expressing concern about this project and requesting information from Ukraine about the possible environmental impact and stressing on necessity of conducting of environmental impact assessment of canal construction.
In 2004 ICPDR participated in joint mission of EC to Ukraine for discussion of Danube-Black Sea canal project. ICPDR also contributed to the organization of international conference on conservation and sustainable development of Danube delta in Odessa in March, 2006.
European Commission
The visit of the Joint Fact – finding Mission of the European Commission and International Conventions on the “ Bystroe canal ” to Ukraine took place on October 6-8, 2004.
EPL handed to the Mission the EPL memorandum , giving our comments on the letter of the Ministry of Environment of Ukraine, presented to the European Commission.
The report of the mission on the results of their visit to Ukraine can be viewed at: http://europa.eu.int/comm/environment/enlarg/bystroe_project_en.htm .
IUCN
XXXIX Congress of the International Union for Conservation of Nature and Natural Resources in Bangkok, Thailand took the resolution criticizing criminal prosecution of the director of Danube Biosphere Reserve, Voloshkevych O. The president of EPL initiated this decision.
Ramsar / UNESCO
The international experts of the Secretary of Ramsar Convention and UNESCO “Man and the Biosphere” Program announced their official report on the evaluation of alternative proposals f or a waterway construction through the territory of the Danube Biosphere Reserve. It states that the choice of canal construction in the Bystre mouth would represent the worst solution in comparison with other solutions – Ochakivskiy mouth and Solomonov mouth – Zhebryanska bay.
Expert of Ramsar Secretariat, Tobias Salathe, prepared update on recent developments in Danube delta.
He mentioned main facts about phase I of canal construction and gave his impressions on the context of the international seminar on the monitoring of the environmental impacts of Phase I, held in Odessa in April. As is mentioned in report: “Many of the reports (during seminar) presented the monitoring approach and methodology, but still very few detailed results. No detailed results on monitoring of fish populations and fisheries have been presented yet”. Along this, the Ramsar Convention representative deplored the absence of biodiversity information, notably on indicator species and habitats.
In report he mentioned about the letter sent by the Secretary General of the Ramsar Convention to the Ukrainian President on May 3, 2004 expressing concerns for canal construction in Danube Delta.
He concluded that the environmental impacts of navigation through the Danube Delta need to be addressed in cooperation with all parties involved and Ukraine need to present all the relevant information on phases I and II, including EIA study.
Bern Convention
Expert from Convention on the conservation of European wildlife and natural habitats (Bern convention) Mr.Herve Lethier issued his report concerning navigation canal in the Bystroe arm.
Expert points out the absence of economic evaluation and analysis (including alternatives), any risk studies, absence of precise data on expected affects of the works and the prevention and compensation measures envisaged, reminding about the conclusion of UNESCO/Ramsar on inadequate impact study. Thus the option of developing Bystre canal was taken without ecological costs being incorporated or economic analysis of the project.
On 3 December 2004, the Standing Committee of the Convention on the Conservation of European Wildlife and Natural Habitats adopted Recommendation No. 111 on the proposed navigable waterway through the Bystroe estuary. Committee noted that Ukraine has failed to fulfil completely the terms of the Bern Convention in this case. It expressed concerns with the fact that limits of the protected area have been modified to exclude the Bystroe estuary so that the proposed development could legally proceed, as, on the strong belief of the Committee, the modification of limits of protected areas to accommodate development projects should in general be avoided, as it weakens any system of protected areas.
As the result, the Committee prepared the recommendations to Ukraine, including, inter alia,
- to suspend works, except the completion of phase I and not to proceed with phase II of the project until EIA for phase II is undertaken to international standards, until public consultations on the EIA for phase II take place and proposals are duly considered.
- to provide additional information on ecological and socio-economic aspects of alternative solutions.
In 2007 the Standing Committee again requested Ukraine to provide all the necessary information, including EIA and compensatory measures. In July, 2008 experts conducted field visit. As the result experts concluded that their recommendations given in 2004 are still actual and are ignored by Ukraine.
Bonn Convention
In April 2004 EPL filed letter of emergency notification to the Secretariat of Bonn Convention on Conservation of Migratory Species.
African-Eurasian Waterbird Agreement (AEWA).
In July 2004 EPL filed a complaint to the Secretariat of the African-Eurasian Migratory Waterbird Agreement.
