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.
Main facts:
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.
Decision on the case
On October 21, 2021, the 7th session of the Meeting of the Parties to the Aarhus Convention adopted the decision on Ukraine’s compliance with the provisions of the Convention based on the results of consideration of the case ACCC/C/2014/118 by the Compliance Committee.
By its decision VII/8r the Meeting of the Parties endorsed the findings of the Committee that:
(a) By failing to provide access upon request to either the full text of the production-sharing agreements for the Yuzivska and Oleska oil fields, or redacted versions thereof, the Party concerned failed to comply with article 4 (1) of the Convention;
(b) By failing to carry out a public participation procedure meeting the requirements of article 6 regarding the draft production-sharing agreements for the Yuzivska and Oleska oil fields, the Party concerned failed to comply with article 6 (1) (a) of the Convention;
(c) By establishing a legal framework in which public participation under article 6 of the Convention will only be carried out once a production-sharing agreement is already at the implementation stage, the Party concerned failed to comply with article 6 (4) of the Convention;
(d) By denying a non-governmental organization meeting the requirements of article 2 (5) standing to challenge the legality of a production-sharing agreement subject to article 6, the Party concerned failed to comply with article 9 (2) of the Convention;
(e) By maintaining a legal framework in which cassation appeals under article 9 (2) of the Convention must be brought within 20 days of the date on which the contested judgment was drawn up, rather than from the date on which the claimant received the full text of that judgment, the Party concerned fails to comply with the requirement that review procedures under article 9 (2) be fair in accordance with article 9 (4) of the Convention;
(f) By failing to ensure that the requested environmental information was disclosed promptly after the court had ordered it to be disclosed, the Party concerned failed to comply with the requirement in article 9 (4) of the Convention to provide an adequate and effective remedy for the review of environmental information requests;
The Meeting of the Parties also recommended that Ukraine take the necessary legislative, regulatory, administrative or other measures to ensure that:
(a) Subject to any redactions made in accordance with article 4 (3) and (4) of the Convention, the texts of production-sharing agreements are to be provided in full to members of the public upon request in accordance with article 4 of the Convention;
(b) Public participation meeting the requirements of article 6 of the Convention is to be carried out regarding draft production-sharing agreements prior to their approval, at an early stage when all options are open and effective public participation can take place;
(c) Non-governmental organizations meeting the requirements of article 2 (5) are deemed to have standing in review procedures under article 9 (2) of the Convention;
(d) The time frame for filing a cassation appeal within the scope of article 9 (2) of the Convention is calculated from the date on which the claimant receives the full text of the contested judgment;
(e) Adequate and effective remedies are put in place to ensure that orders by the courts to public authorities to disclose environmental information are promptly complied with;
The Meeting of the Parties also requested Ukraine to:
(a) Submit a plan of action, including a time schedule, to the Committee by 1 July 2022 regarding the implementation of the above recommendations;
(b) Provide detailed progress reports to the Committee by 1 October 2023 and 1 October 2024 on the measures taken and the results achieved in the implementation of the plan of action and the above recommendations.
Implementation of the decision
As of October 1, 2022, Ukraine has submitted to the bodies of the Convention neither an action plan (with a corresponding schedule) for the implementation of the above-mentioned recommendations, nor a detailed progress report on the measures taken and the results achieved in the implementation of the action plan and the above recommendations.
Despite the martial law declared in Ukraine in connection with armed aggression, we are still convinced that Ukraine should make efforts to implement the decisions of international bodies, in particular the Meeting of the Parties to the Aarhus Convention.
Moreover, in the light of Ukraine’s future membership in the European Union, it is undeniable and urgent to adjust the current legal framework and take into account international obligations in the field of issues covered by this decision in new legislative initiatives. The EPL follows the government’s actions in this direction, and if necessary, is ready to join the work of developing an appropriate action plan, legislative acts and a report on the progress of implementation of recommendations.
