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11.06.2008

Open appeal from the Ukrainian Helsinki Human Rights Union on Ukraine’s failure to comply with the Aarhus Convention

   

To the Third Meeting of the Parties to the Aarhus Convention

“On access to information, public participation in decision-making and access to justice in environmental matters (Aarhus Convention)

Dear Representatives of the Parties to the Aarhus Convention and leaders of nongovernmental organizations of countries of Europe, the Caucuses and Central Asia

The Ukrainian Helsinki Human Rights Union [UHHRU] which combines 24 human rights organizations from all regions of Ukraine sends its greetings to the Third Meeting of the Parties to the Aarhus Convention in Riga and best wishes for fruitful cooperation for the sake of implementing environmental policy by all Parties based on the principles of openness, public participation and responsibility upon which the Convention is based.

We are profoundly aware how closely intertwined are environmental rights with fundamental human rights, including the right to life.

We understand how vital it is to draw up practical mechanisms for implementing the standards of the Aarhus Convention and ensuring liability where these are not adhered to. This is crucial for protection of the natural environment, ensuring sustainable development, development of civic society, observance of human rights and the rights of future generations.

We hope that the development of awareness of environmental rights will make the theory of human rights and international legislation more effective and capable in the conditions of the XXI century.

However our appeal to the Third Meeting of the Parties to the Aarhus Convention is dictated in the first instance by our concern over the state of implementation of the Aarhus Convention in Ukraine.

Monitoring of adherence to the provisions of the Aarhus Convention has been carried out over several years by Ukrainian and international nongovernmental organizations. Its results give grounds for concluding that the authorities in Ukraine are failing to properly fulfil the commitments they made with regard to access to information, public participation in decision-making and access to justice in environmental matters.

We are concerned that violations of the environmental rights of people in Ukraine are of a constant and systemic nature. The main reasons for this are the low priority given to environmental policy; the lack of political will; corruption and crisis in the system of State management; the lack of compliance of many normative legal acts with international standards, including the standards of the Aarhus Convention, and the unsatisfactory application of the law.

In the process of implementation of the Convention within domestic legislation, amendments have not been made to a number of laws as clearly required by the Convention, for example, to the Law “On information”. The interpretation of the concept “environmental information” in this law differs from that in the Aarhus Convention.  It excludes important areas such as information about the state of health and safety; people’s living conditions; the condition of objects of culture and buildings and the extent to which these are or could be affected by the state of the environment.

However current legislation is also not implemented properly. For example, there were no National Reports on the State of the Environment for 2005 - 2007, despite review of such reports by the Verkhovna Rada on an annual basis and their publication on the Internet being a requirement of the Law “On protection of the natural environment”

Virtually nothing has been done to create a nationwide computerized system for ensuring access to environmental information which according to Article 10 of the Law “On protection of the natural environment” and the Law “On local self-government in Ukraine” should have been functional as far back as 2005.

In 2007 the public learned of the existence of some normative legal acts from the Ministry for Environmental Protection [MEP] and other authorities which classify large areas of environmental information as confidential, namely:

-  information about regulation of environmental issues on the trans-border rivers of Ukraine;

-  regulation of environmental issues concerning biologically active (poisonous, infectious) substances, genetically modified organisms which can be used as biological weapons

-  separate conclusions from State environmental impact assessments;

-  information about the technical characteristics of hydro-technical structures;

-  information concerning the functioning of the Russian Federation Black Sea Fleet on Ukrainian territory;

We are convinced that that the content of these MEP Orders are in breach of the Ukrainian Constitution; the Aarhus Convention, the laws “On the protection of the natural environment” and “On information” which guarantee each person the right to free access to information on environmental matters. The restriction of this right may only be imposed by law. In view of this, the above-mentioned MEP Orders and orders of other authorities which restrict the right of access must be revoked.

We can testify to a large number of cases where the right of civic environmental organizations to take part in decision-making on prominent design proposals and strategic programmes which will have significant impact on the environment.

The Cabinet of Ministers and other authorities have flagrantly ignored public protest in taking decisions regarding the canal through the Danube Biosphere Reserve; construction of containers for used nuclear waste at nuclear power plants; the Tashlyk and Dniester Hydro-Accumulating Power Stations; unlawful reduction of the boundaries of many reserve areas; the passing of an Energy strategy envisaging the construction in post-Chernobyl Ukraine of 22 new nuclear power plants. Considerable problems remain also with access to justice and application of the law. Numerous precedents of intrusion by financial and political groups in the work of the court undermine confidence in the justice system generally.

We are aware that the Second Meeting of the Parties to the Aarhus Convention found that Ukraine was failing to adhere to the Convention. Yet the critical conclusions of the United Nations Economic Commission for Europe (UNECE).and the Meeting of the Parties to the Aarhus Convention have been consistently concealed from the Ukrainian public and they have not been published in any official publication. We must with regret state that over the last three years the Government has still not implemented the recommendations from the Second Meeting that Ukraine:

-  bring its legislation and practice into line with the provisions of the Convention;

­  no later than the end of 2005 present the UNECE Committee on Observance of the Convention with a Strategy Plan for integrating its provisions in domestic legislation, together with the relevant schedules, practical mechanisms and procedure for enforcing implementing legislation..

In Ukraine the relevant steps have not yet been taken to draw up a Strategy policy for implementing the Aarhus Convention. The so-called “Strategy” and “Plan for strategic decisions of the Ministry for Environmental Protection” which are to be presented by the Ministry to the Third Meeting of the Parties cannot be considered a strategy in its structure, content or in the procedure for drawing it up.

The Ministry for Environmental Protection as executive body with regard to environmental policy cannot pass its own regulatory acts until documents of a conceptual nature are approved in the higher bodies of power. The official submission of the “Plan for strategic decisions” to the UNECE Committee on Observance of the Convention  without prior discussion with interested members of the public demonstrates the over lack of respect of the present management of the MEP for the citizens of their country. We are convinced that the draft Strategy Plan must pass through a full procedure of public consultation. We believe it necessary to pass the Strategy Plan and National Action Plan on implementing the Aarhus Convention in Ukraine at the highest state level though a parliamentary Resolution.

In view of this we would ask the members of the Third Meeting of the Parties to the Aarhus Convention and the Committee on Observance of the Convention to find unacceptable the draft Strategy and Plan for strategic decisions proposed by the MEP.

In our view the National Report of Ukraine on implementation of the Aarhus Convention in 2007 is overloaded with redundant and miscellaneous information. It is intended to create the illusion that things are generally well as concerns implementation of the Convention. The Report has not however given any attention to problems not overcome by Ukraine in this.

We do not consider that in the process of drawing up the National Report, the Ministry for Environmental Protection ensured an acceptable degree of openness and participation of the interested public.   We are critical of a situation where the process for preparing the National Report is concentrated solely on the Ministry for Environmental Protection with there being only illusory participation by other higher bodies of power.

We consider unworthy the position taken by the higher state bodies which are effectively avoiding fulfilling their commitments and resorting to an inept imitation of the process of implementation of the Aarhus Convention by placing all responsibility for its implementation on the institutionally weaker Ministry for Environmental Protection. 

It is clear to us that long procrastination in implementing the Aarhus Convention is unacceptable in view of the Euro-integration plans of the political leaders. If the question is not raised now of the responsibility of the higher state bodies of power for the years of non-implementation of the provisions of the Aarhus Convention, Ukraine will soon have to forget about political declarations regarding the establishment of a law-based and democratic state and its European choice.

We are however convinced that Ukraine’s adherence to the principles of “environmental democracy” declared by the Aarhus Convention are a vital factor in defending people’s environmental rights and observance of environmental safety in Ukraine, Central and Eastern Europe in general.

In view of this we consider that the Third Meeting of the Parties to the Aarhus Convention has all grounds to conclude:

that Ukraine has totally failed to fulfil the recommendations of the UNECE Committee on Observance of the Convention and the Second Third Meeting of the Parties in Almati;

that the “Strategy Plan for the Implementation of the Aarhus Convention in Ukraine” and the “Plan For Strategic Decisions of the Ministry for Environmental Protection” in their present form and without ensuring procedures for public participation in their preparation are unacceptable;

that the general situation with adherence by Ukraine to the Aarhus Convention is unacceptable.

  We call on the members of the Council and UNECE Committee on Observance of the Aarhus Convention to apply the most effective measures of influence at their disposal to force the state authorities to fully honour their commitments.

  In our opinion, the Parties to the Convention should toughen procedure for ensuring adherence. In this sense we would support the aims and proposals declared in the Vienna Declaration of the European Eco-Forum.

  We believe that the problem issues in adherence to the Aarhus Convention could be set aside for special consideration in other international structures, for example, by the OSCE, the European Parliament and higher UN structures.

  We are convinced that strengthening the role of the Aarhus Convention will be our next joint step towards a humane and just world order, based on an understanding of humanity’s bond with the Earth.

This appeal was passed by discussion through the electronic mail network of the Ukrainian Helsinki Human Rights Union from 9-10 June 2008.

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