The Aarhus Convention Compliance Committee found Ukraine in violation of its
obligations under the Aarhus Convention during the construction of the
Danube - Black Sea canal.
On May 5, 2004, Ecopravo-Lviv (EPL) submitted a communication to the
Committee alleging non-compliance by Ukraine with its obligations under
Aarhus Convention. The communication concerned a proposal to construct a
navigation canal in the Danube Delta passing through an internationally
recognized wetlands area.
On February 18, 2005, the Committee found that by failing to provide for
public participation required by article 6 of the Aarhus Convention, Ukraine
was not in compliance with article 6. The Committee also found that by
failing to ensure that information was provided by the responsible public
authorities upon request, Ukraine was not in compliance with article 4 of
In addition, the Committee found that lack of clarity with regard to public
participation requirements in environmental impact assessment and
environmental decision-making procedure on projects indicate the absence of
a clear, transparent and consistent framework for implementation of the
Convention and constitute non-compliance with general obligation provided by
article 3 of the Convention.
The Committee adopted several recommendations. These recommendations request
Ukraine to bring its legislation and practice into compliance with the
provisions of the Convention. In addition, Ukraine is requested 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. The recommendations will be
considered by the Meeting of the Parties to the Convention in Almaty
(Kazakhstan) in May, 2005.
The Aarhus Convention grants the public rights and imposes on Parties and
public authorities obligations regarding access to information and public
participation and access to justice. The subject of the Aarhus Convention
goes to the heart of the relationship between people and governments. The
Convention is not only an environmental agreement, it is also a Convention
about government accountability, transparency and responsiveness. See:
More about Danube canal case:
More about EPL: http://www.epl.org.ua/eng/
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FINDINGS AND RECOMMENDATIONS
with regard to compliance by Ukraine with the obligations under the Aarhus
Convention in the case of Bystre deep-water navigation canal construction
(submission ACCC/S/2004/01 by Romania and communication ACCC/C/2004/03 by
Adopted by the Aarhus Convention Compliance Committee on 18 February 2005
1. On 5 May 2004, the Ukrainian non-governmental organization Ecopravo-Lviv
submitted a communication to the Committee alleging non-compliance by Ukraine with
its obligations under article 1 and article 6, paragraphs 4 to 9, of the Aarhus
2. The communication concerned a proposal to construct a navigation canal in the
Danube Delta passing through an internationally recognized wetlands area. The
communicant claimed that by failing to provide for proper public participation in a
decision-making process on state 'environmental expertiza' linked with the technical
and economic evaluation of the proposed project and to provide access to
documentation relevant to the process, the Party had failed to comply with its
obligations under article 6 of the Convention. The communicant had sought redress in
two instances of the domestic court system, winning in the first instance and losing
in the appellate court. The full text of the communication is available at
3. The communicant submitted supplementary information on 1 December 2004,
listing several additional facts of alleged non-compliance, in particular with regard
to interpretation by the courts and the Ministry of Environment of the domestic
requirements on public participation in the environmental impact assessment process.
A reference was also made to the findings of the special fact-finding mission led by
the European Commission with regard to the project in question. The text of the
report is available at
4. On 7 June 2004, the Government of Romania made a submission alleging failure
by Ukraine to comply with the provisions of article 6, paragraph 2 (e), of the
Convention by failing, in the opinion of the submitting Party, to ensure that the
public affected by the Bystre Canal project in the Danube Delta was informed early in
the decision-making procedure that the project was subject to a national and
transboundary environmental impact assessment procedure.
5. In a letter to the Committee dated 26 November 2004, the submitting Party
provided further information. It reiterated its claim that the Party concerned was
not in compliance with article 6, paragraph 2 (e) when read in conjunction with
article 2, paragraph 5, or with article 6, paragraph 7, and article 3, paragraph 9,
of the Convention. In support of its position, it cited inter alia the failure of the
Party concerned to involve various non-governmental organizations, including
Ukrainian, Romanian and international ones, that had expressed interest in or concern
about the canal, in the decision-making on any of the phases of the project.
6. The representative of the Romanian Government further clarified during the
discussion at the Committee's sixth meeting that the submission was also intended to
address Ukraine's failure to comply with article 6 vis-a-vis its own citizens. He
also stated that the Ukrainian Government had already been well aware of the concerns
of the Romanian public with regard to the project already prior to the final decision
on the project's feasibility study.
7. The communication was forwarded to the Government of Ukraine on 18 May 2004
and the submission on 17 June 2004. The secretariat received a letter from the Agency
for Protected Areas of Ukraine on 23 September 2004 indicating that the Party would
require more time than the initial three-month period to respond. The letter also
informed the Committee that public opinion on the project was divided with local
population tending to support and some of the NGOs opposing it; the opinions had been
transmitted to the contractor developing the EIA of Phase I of the project in 2004.
No further correspondence was received from the Party concerned before the expiry of
the six-month period, nor did the Party concerned provide information to or
participate in the meeting of the Committee at which the matter was discussed.
8. The Committee, having noted that the communication and submission were
closely related in their subject matter, considered them side-by-side at its sixth
meeting on 15-17 December 2004. However, taking into account the related process of
establishing an inquiry commission under the Espoo Convention aimed at determining
whether the activity was likely to have a significant transboundary environmental
impact, it agreed that it would consider the question of compliance with the part of
article 6, paragraph 2 (e), relating to environmental impact assessment in a
transboundary context in the light of the findings of the inquiry procedure being
undertaken under the Espoo Convention. That inquiry is expected to establish whether
or not the activity was indeed subject to a transboundary environmental impact
assessment procedure. It therefore agreed to defer discussions on those aspects of
the submission and communication and to restrict its discussions to other aspects.
9. The Committee at its fourth meeting (MP.PP/C.2/2004/04, paragraph 18)
determined on a preliminary basis that the communication was admissible, subject to
review following any comments received from the Party concerned. This determination
has not been challenged in any way. The Committee therefore confirms the
admissibility of the communication.
10. The Committee discussed the communication at its sixth meeting (15-17
December 2004), with the participation of representatives of the Party making the
submission and the communicant.
11. In accordance with paragraph 34 of the annex to decision I/7, the draft of
this decision was forwarded for comment both to the Parties concerned and the
communicant on 1 February 2005. The Parties concerned and the communicant were
invited to provide comments, if any, by 14 February 2005. Comments were received from
the communicant. The Committee, having reviewed the comments, took them into account
in finalizing the decision by amending the draft where the comments, in the
Committee's opinion, affected the presentation of facts or the Committee's
consideration, evaluation or conclusions.
II. SUMMARY OF FACTS (This section includes only the main facts considered to be
relevant to the question of compliance, as presented to and considered by the
12. The matter concerns approval by the government of Ukraine of construction of
the deep-water navigation canal in the Bystre arm in the Ukrainian part of the Danube
river delta. The permitting process has been divided into three phases: feasibility
study, approval of Phase I and approval of Phase 2 of the project. Each stage
undergoes an approval process on the basis of a Comprehensive State Expertisa that
includes Environmental Expertisa (an evaluation and, where appropriate, approval of
the EIA by an authorized public authority). The Communication and the submission
relate primarily to the decision-making on the project's feasibility study. However,
both the communicant and the submitting Party maintain that subsequent
decision-making on the phases of the project, while having certain formal
improvements in the procedure, continuously failed to ensure effective participation
as required by article 6 of the Convention.
13. The project in question potentially affects a nature conservation area of
national and international importance and has clearly generated a great interest
among both the Ukrainian and international civil society.
14. In its letters to the Ministry of Environment dated 30 April 2003 and 3 June
2003, the communicant expressed its interest in the decision-making process in
question. The communicant has been in regular contact with the Ministry with regard
to the issue of the canal construction since then.
15. The communicant lists several instances where it was refused access to
documentation on the project either as a whole or in part. According to the report of
the EU fact-finding mission, referred to in the supplementary information and the
additional information provided by the submitting Party, several other organizations,
including national, foreign and international organizations, both governmental and
non-governmental, have been refused access to information of the types referred to in
article 6, paragraph 6, of the Convention.
16. The Ministry of Environment, in its reply to a request for information from
the communicant dated 18 June 2003, stated that materials developed in the course of
an EIA were the property of the developer and therefore the Ministry was not in a
position to provide access to such information. A similar response, as the report of
the European Commission indicates, was given to subsequent requests for this
documentation submitted by various organizations.
17. On 3 July 2003, the project investor published an Environmental Impact
Statement in the regional newspaper. No information with regard to the public
participation procedure or other relevant information referred to in article 6,
paragraph 2, of the Convention was provided.
18. The Ministry of Environment approved the conclusions of the State
Environmental Expertisa on 10 July 2003, seven days following the first notification
about the project.
19. On 7 August 2003, the Ministry of Environment sent a reply to the
communicant's request for a copy of the conclusions of the State Environmental
Expertisa, including a two-page summary of the conclusions and refusing to provide
the whole document for technical reasons.
20. The Government of Ukraine notified the Government of Romania of the intended
project in October 2003, following the conclusion of the decision-making procedure on
the project's feasibility study.
21. Phase I of the project was approved in May 2004 and the construction works
began immediately. Phase I of the project was concluded in August
22. 2004. As on October 2004, the EIA for Phase II had not been finalised.
23. On 13 October 2004, the Ministry of Environment in its written response to
the second appeal filed by the communicant with the High Commercial Court of Ukraine
stated that the assertion of the plaintiff that Ukrainian legislation provided for an
obligation to ensure public participation in the state environmental expertisa was
ungrounded. The court held that in accordance with Ukrainian legislation, the public
authorities were not obliged to ensure public participation in decision-making with
regard to EIA.
III. CONSIDERATION AND EVALUATION
24. Ukraine deposited its instrument of ratification of the Convention on 18
November 1999. The Convention entered into force for Ukraine on 30 October 2001.
25. The Convention, as an international treaty ratified by Ukraine, has direct
applicability in the Ukrainian legal system. All the provisions of the Convention are
directly applicable, including by the courts.
26. The decision-making process in question concerns construction of a
deep-water navigation canal of a type that falls under paragraph 9 of annex I to the
Aarhus Convention and therefore falls under article 6, paragraph 1 (a) of the
Convention, triggering also the application of other provisions of that article.
27. The communicant is a non-governmental organization working in the field of
environmental protection and falls under the definitions of the public and the public
concerned as set out in article 2, paragraphs 4 and 5 respectively, of the
Convention. Foreign or international non-governmental environmental organizations
that have similarly expressed an interest in or concern about the procedure would
generally fall under these definitions as well.
28. With regard to the facts included in paragraph 6 above, there is, in the
opinion of the Committee, sufficient evidence that there were members of the public,
both in Romania and in Ukraine, interested in or concerned about the project that had
to be notified in accordance with article 6, paragraph 2 of the Convention.
29. Considering the nature of the project and the interest it has generated,
notification in the nation-wide media as well as individual notification of
organizations that explicitly expressed their interest in the matter would have been
called for. The Party, therefore, failed to provide for proper notification and
participation in the meaning of article 6 of civil society and specifically the
organizations, whether foreign or international, that indicated their interest in the
procedure. With regard to the Romanian NGOs and individuals, such notification and
participation could have been undertaken by Ukraine via the Romanian authorities, as
there is sufficient evidence to suggest that the Ukrainian Government was well aware
of the concerns expressed to the Romanian authorities by citizens and organizations
in Romania. The Committee, however, notes that, generally speaking, there are no
provisions or guidance in or under article 6, paragraph 2, on how to involve the
public in another country in relevant decision-making, and that such guidance, seems
to be needed, in particular, in cases where there is no requirement to conduct a
transboundary EIA and the matter is therefore outside the scope of the Espoo
30. The timeline, as reflected in paragraphs 15 and 16 above, failed to allow
the public to study the information on the project and prepare and submit its
comments. It also did not allow the public officials responsible for making the
decision sufficient time to take any comments into account in a meaningful way, as
required under article 6, paragraph 8.
31. In this regard, the information provided in the report of the EU-led
fact-finding mission (Annex 10) as to what seems to be a regular practice of
short-cutting the decision-making procedure by providing parts of the EIA for
evaluation and approval by the decision-making authority in the course of EIA
development and prior to any information being publicly available is of particular
concern. Lack of clear domestic regulation of the timeframes and procedures for
commenting seem to be at the heart of this problem.
32. With regard to the facts described in paragraph 14 above, public authorities
should possess information relevant to its functions, including that on which they
base their decisions, in accordance with article 5, paragraph 1, and should make it
available to the public, subject to exemptions specified in article 4, paragraphs 3
and 4. The issue of ownership is not of relevance in this matter, as information is
used in a decision-making by a public authority and should be provided to it for that
purpose by the developer. The fact that such misinterpretation took place again
points to a lack of clear regulatory requirements in the national legislation.
33. Moreover, article 6, paragraph 6, of the Convention is aimed at providing
the public concerned with an opportunity examine relevant details to ensure that
public participation is informed and therefore more effective. It is certainly not
limited to publication of an Environmental Impact Statement. But had some of the
requested information fallen outside the scope of article 6, paragraph 6 of the
Convention, it would be still covered by the provisions of article 4, regulating
access to information upon request.
34. Finally, information within the scope of article 4 should be provided
regardless of its volume. In cases where the volume is large, the public authority
has several practical options: it can provide such information in an electronic form
or inform the applicant of the place where such information can be examined and
facilitate such examination, or indicate the charge for supplying such information,
in accordance with article 4, paragraph 8, of the Convention.
35. Lack of clarity or detail in domestic legislative provisions, in particular,
with regard to issues discussed in paragraphs 27 and 28 above, demonstrate, in the
view of the Committee, that the Party concerned has not taken the necessary measures
to establish and maintain a clear, transparent and consistent framework to implement
the provisions of the Convention, as required by article 3, paragraph 1.
The Committee finds that by refusing to provide the text of the decision along
with the reasons and considerations on which it is based and not indicating how the
communicant could have access to it, the Party concerned did not comply with its
obligations under the second part of article 6, paragraph 9, to make accessible to
the public the text of the decision along with the reasons and considerations on
which the decision is based.
36. The communication also includes the allegation as to non-compliance with
article 1. The Committee notes that a non-compliance with the operative provisions of
the Convention is not in conformity with the objective of the Convention as defined
in article 1.
37. Having considered the above, the Committee adopts the following findings and
recommendations set out in the following paragraphs with a view to bringing them to
the attention of the Meeting of the Parties.
MAIN FINDINGS WITH REGARD TO NON-COMPLIANCE
38. The Committee finds that by failing to provide for public participation of
the kind required by article 6 of the Aarhus Convention, Ukraine was not in
compliance with article 6, paragraph 1 (a) and, in connection with this, article 6,
paragraphs 2 to 8 and article 6, paragraph 9 (second sentence).
39. The Committee finds that by failing to ensure that information was provided
by the responsible public authorities upon request, Ukraine was not in compliance
with article 4, paragraph 1, of the Convention.
40. The Committee also finds that lack of clarity with regard to public
participation requirements in EIA and environmental decision-making procedure on
projects, such as, inter alia, time frames and modalities of a public consultation
process, requirements to take its outcome into account, and obligations with regard
to making available information in the context of article 6, indicate the absence of
a clear, transparent and consistent framework for implementation of the Convention
and constitute non-compliance with article 3, paragraph 1 of the Convention.
41. The Committee, taking into account the cause and degree of the
non-compliance, and noting with regret that no response to either the submission or
the communication was provided by the Party concerned pursuant to the requirements
set out in the annex to decision I/7, recommends to the Meeting of the Parties
pursuant to paragraph 35 of decision I/7 to:
(a) Request the Party concerned to bring its legislation and practice into
compliance with the provisions of the Convention and include information on the
measures taken to that effect in its report to the next Meeting of the Parties;
(b) Pursuant to paragraph 37 (b) of the annex to decision I/7, request the Party
concerned to submit to the Compliance Committee, not later than the end of 2005, 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. The strategy might also include capacity building activities, in
particular for the judiciary and public officials involved in environmental
(c) Mandate the Working Group of Parties to develop for consideration at the
third Meeting of the Parties guidance to assist Parties in identifying, notifying and
involving the public concerned in decision-making on projects in border areas
affecting the public in other countries but not requiring transboundary environmental
impact assessment under the Espoo Convention which includes procedures for public
more about the problem