Case: Canal Danube-Black Sea

Region: Europe, Ukraine, Odessa oblast, Vilkovo 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 Environment 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 canal Danube – Black sea 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

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 Comercial 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.

(For more information on this court proceedings read in the News Archive)

  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 challeging 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.

(For additional information read in the news archive)

  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.

(For additional information on this appeal read in the news archive)

  International level

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 to send 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 was expected to make a field visit on 10-16 April, then to meet and decide on its final opinion on 13 May 2005. So far this programme has had to be postponed, however, due to the lack of support by the Ukrainian authorities.

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.

Aarhus Convention

In May 2004 EPL filed formal complaint to t he 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 canal Danube – Black Sea by Ukraine.

In May 2004 the Government of Romania submitted its own official complaint to t he 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.

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. 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.

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 were 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 adoped Recommendation No. 111 on the proposed navigable waterway through the Bystroe estuary. Committee noted that Ukraine has failed to fulfill 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 of 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 takes place and proposals are duly considered.
- to provide additional information on ecological and socio-economic aspects of alternative solutions.