Bystroe Canal Project under international scrutiny
Overview of activities addressing the Bystroe Canal Project under multilateral environmental agreements and by intergovernmental organizations
9 May 2008
1. Intergovernmental organizations concerned by the implementation of the Danube-Black Sea Deep-Water Navigation Canal in the Ukrainian Sector of the Danube Delta (the “Bystroe Canal Project”) met informally in Geneva on 18 April 2008. The meeting provided an opportunity for the organizations to exchange information and experiences on their activities with regard to the Project.
2. The following organizations were represented: Permanent Secretariat of the International Commission for the Protection of the Danube River (ICPDR); Secretariat of the Convention on the Conservation of European Wildlife and Natural Habitats under the Council of Europe (Bern Convention); Secretariat of the Convention on Wetlands (Ramsar Convention), also representing the Secretariat of the Convention on Biological Diversity; UNEP (Regional Office for Europe); UNESCO, Man and Biosphere Programme (MAB) and World Heritage Convention; and UNECE secretariat of the Convention on Environmental Impact Assessment (EIA) in a Transboundary Context (Espoo Convention), Convention of the Protection and Use of Transboundary Watercourses and International Lakes (Water Convention) and Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention).
3. The organizations emphasized the role of the respective agreements under their auspices in the promotion of sustainable development and international cooperation, and their focus on integrating environmental concerns into economic development.
4. The secretariats of the intergovernmental organizations discussed that: (a) commitments and obligations of Ukraine under international conventions have not been adhered to in the development of the Project; and (b) the December 2007 decision by Ukraine to implement the Project in full, if done without implementing these obligations, would be in contradiction to the obligations under various international conventions and agreements.
5. Having taken note of Ukraine’s December 2007 decision, the organizations provided the following summaries of their past and possible future activities:
6. ICPDR has since 2003 discussed at its Commission meetings the issue of development of the Danube-Black Sea Navigation Channel and since this date followed closely developments, including establishing an active dialogue with representatives of Ukraine and neighbouring countries in connection with possible transboundary environmental effects on water from the project.
7. Regular reports have been provided since 2004 to the Ordinary Meeting and Standing Working Group of ICPDR by Ukraine under a provision of the Convention that requires that projects with transboundary relevance should be presented to the Contracting Parties. A number of resolutions on the issue have been passed including most recently at the Ordinary meeting in December 2007. At the meeting, ICPDR took “note with appreciation of the information provided by Ukraine and the reiteration of the commitment of Ukraine for the full implementation of the provisions of the Espoo Convention and the conclusions and recommendations of the Espoo International Inquiry Commission Report and the Standing Committee of the Bern Convention.” ICPDR has continued to reinforce the need for the requirements of the Espoo Convention to be upheld, and to see this as an the most appropriate process to be used for ensuring that neighbouring countries affected by the project to be informed of the project and to have input into how the project could be developed or adjusted to reduce or eliminate transboundary effects.
8. ICPDR also participated in the October 2004 European Union (EU) led mission to the Danube-Black Sea Navigation Channel and supported the recommendations and conclusion of the report of that mission. In addition ICPDR has supported the more broad discussion among Danube Delta countries on the sustainable development of the Danube Delta and, in particular, has been a leading partner in the International Conference on the Conservation and Sustainable Development of the Danube Delta, held in Odessa, Ukraine, from 27 February to 1 March 2006 (the “Odessa Conference”).
9. In December 2007 the Heads of Delegation to ICPDR from Moldova, Romania and Ukraine signed an Agreement committing themselves to development of a “River Basin Management Plan for the Danube Delta supporting Sustainable Development”. This agreement is intended to be a contribution of the countries to the overall Danube River Basin Management Plan being developed in the Danube River by the countries in the frame of ICPDR as part of the obligations under the EU Water Framework Directive.
10. In December 2007 ICPDR also adopted the Joint Statement on Inland Navigation and Environmental Protection, which outlines criteria and principles for development of navigation projects in the Danube River Basin. The Joint Statement was developed and agreed by the Danube Commission (Navigation) and Sava Commission and included in its development participation by Ukraine and Romanian officials from the navigation and environmental sector.
11. In 2004 the Standing Committee of the Bern Convention adopted Recommendation No.111 (2004) “on the proposed navigable waterway through the Bystroe estuary (Danube Delta, Ukraine)”, asking Ukraine to suspend works and not to proceed with Phase 2 of the Project until certain conditions were met. The Standing Committee also decided to open a case file, which remains open to date.
12. The Standing Committee has further called on Ukraine and neighbouring countries to convene a meeting of the Parties of the trilateral Agreement “for the creation and management of a cross-border protected area between Moldova, Romania and Ukraine in the Danube Delta and lower Prut River nature protected areas” signed under the auspices of the Council of Europe on 5 June 2000 (the trilateral agreement entered into force in October 2006 and foresees the setting up of a Joint Commission).
13. In 2007, the Standing Committee continued to request all relevant documentation, including the EIA and compensatory measures. It further decided to carry out an on-the-spot visit in 2008, to which the Ukrainian delegation agreed. This expert visit will take place in the last week of July 2008, and other relevant international conventions and organisations will be invited to join. The report of this visit and a new draft recommendation will be submitted to the next meeting of the Standing Committee of the Bern Convention in Strasbourg, on 24-27 November 2008.
14. Since its initial Ramsar Advisory Mission in October 2003, together with the UNESCO MAB Programme, Ramsar follows the issue with concern, as spelt out in paragraph 27 iv) of Resolution IX.15 adopted by Ramsar ninth Conference of the Parties (COP9) in 2005. Ramsar considers crucial a coordinated approach of intergovernmental organizations to support the finding of solutions to this case, which is why it invited them to a first international meeting in Geneva in September 2004. Ramsar continues to insist on the need to solve the transboundary consequences on the environment of the planned and ongoing navigation developments through integrated approaches, including all three range states of the Danube Delta (Moldova, Romania, Ukraine), as outlined in the conclusions of the Odessa Conference. As Ukraine has not yet responded to the requests formulated in Resolution IX.15 (see above), the upcoming Ramsar COP10, in October 2008, will have to address them again (text for a draft Resolution has been submitted to Ramsar’s Standing Committee in April 2008).
15. In 1998, the Danube Delta Transboundary Biosphere Reserve was established with Ukraine (Dunaisky Biosphere Reserve) and Romania. The World Heritage property of the Danube Delta (Romania) was inscribed on the UNESCO World Heritage List in 1991. Since the designation in 1998, the Ukrainian government authorities had decided to re-zone the Dunaisky Biosphere Reserve to accommodate the construction of the navigation canal in the Bystroe arm of the Delta. The dossier had been subsequently examined by the MAB International Co-ordinating Council (ICC) in October 2004, then by the International Advisory Committee for Biosphere Reserves and the Bureau of MAB ICC in June 2005, and the Bureau of MAB ICC in October 2006. The MAB Bureau had requested the Ukrainian authorities to provide the official version of the zonation of this site and the results of the Environmental Impact Assessment of Phase 2 of the navigation canal Project. This would enable the Bureau to take a decision in relation to the international biosphere reserve criteria. The MAB ICC Bureau noted that the Permanent Delegation of Ukraine to UNESCO had informed the Secretariat that, following a meeting of the Presidents of Romania and Ukraine in February 2006, a bilateral expert committee on environment and sustainable development was being established which could officially respond to the recommendations of the MAB Bureau and ICC on this site.
16. The Bureau encouraged the Ukrainian authorities to pursue these efforts and to provide a response as early as possible to the recommendations as reiterated and updated by the Advisory Committee as follows:
- provide the official version of the zonation of this site;
- submit the results of the EIA of Phase 2 of the Project;
- provide a written statement of clarification on the status of the Project;
- encourage cooperation in the framework of the Transboundary Biosphere Reserve with Romania, in particular to follow up on the recommendations of the Odessa Conference.
17. Concerning the World Heritage property of the Danube Delta (Romania), the working documents are currently being drafted by the World Heritage Centre and IUCN and will be transmitted to the World Heritage Committee six weeks prior to its 32nd session (Quebec, 2-10 July 2008). To date, no official response has been received by the UNESCO Secretariat for both MAB and World Heritage (Decision 30 COM 7B.24) requests. The Ukrainian Dunaisky Biosphere Reserve has to undertake its periodic review in 2008 (Article 9 of the Statutory Framework). The Secretariat has sent an official letter to the Government of Ukraine and is ready to support a mission to assist the Ukrainian authorities to finalize the periodic review for examination by the Advisory Committee on Biosphere Reserves and the MAB ICC Bureau before end of 2008.
18. Romania requested the establishment of an Inquiry Commission under the Convention in August 2004. The Commission’s final opinion, delivered in July 2006, was that the Project was likely to have a significant adverse transboundary impact. In January 2007 Romania made a submission to the Convention’s Implementation Committee having concerns about Ukraine’s compliance with its obligations under the Convention, with respect to the Project and in the light of the opinion of the Inquiry Commission.
19. In January 2008 the Implementation Committee found that Ukraine had been in non-compliance with its obligations under the Convention, in particular Articles 2, 3 and 4. The Implementation Committee made a number of recommendations to the Meeting of the Parties to the Convention further to the submission. Certain of the recommendations may have been overtaken by the taking of the final decision. However, the recommendations also foresaw: (a) support for an independent review of Ukraine’s legal, administrative and other measures to implement the provisions of the Convention; and (b) submission by Ukraine of a strategy, including its time schedule and training and other actions to bring about compliance with the Convention. In addition, once a decision has been taken to implement an activity, such as the Bystroe Canal Project, the Convention provides for post-project analysis including surveillance of an activity and determination of any adverse transboundary impact.
20. On 7 May 2008, in light of Ukraine’s December 2007 decision, the Implementation Committee issued an addendum to its findings and recommendations, finding that Ukraine had also been in non-compliance with Articles 5 and 6 of the Convention and recommending that the Meeting of the Parties decide to issue a caution to the Government of Ukraine. The Fourth Meeting of the Parties will be held from 19 to 21 May 2008.
21. Both Romania and Ukraine are Parties to the Convention. The Convention requires Parties to prevent, control and reduce any transboundary impact, i.e. significant adverse effect on the environment resulting from a change in the conditions of transboundary waters caused by a human activity. Riparian Parties shall exchange information on existing and planned uses of water and related installations that are likely to cause transboundary impact and shall consult each other on the basis of reciprocity, good faith and good-neighbourliness, at the request of any such Party. Any such consultations shall be conducted through a joint body established by the riparian Parties - in this case either through the International Commission for the Protection of the Danube River or through the meeting of Plenipotentiaries established under the bilateral agreement between Romania and Ukraine. The Convention does not include a mechanism for review of compliance with its provision. The issue of the Bystroe Canal was raised at the fourth meeting of the Parties (Bonn, 20-22 November 2006) in an official statement by the delegation of Romania expressing disapproval for the lack of information from Ukraine.
22. Review of compliance by Ukraine was triggered in May and June 2004 by a communication from a Ukrainian non-governmental organization and a submission from Romania, both of which related to the decision-making on the Bystroe Canal.
23. At their second meeting in May 2005, the Parties to the Convention endorsed the findings of the Compliance Committee (set out in addendum 3 to the report of its 7th meeting (ECE/MP.PP/C.1/2005/2/Add.3)) that Ukraine failed to comply with the provisions of article 4, paragraph 1, article 3, paragraph 1, article 6, paragraph 1 (a), and, in connection with this, article 6, paragraphs 2 to 8, and article 6, paragraph 9 (second sentence), of the Convention. They requested Ukraine (a) to bring its legislation and practice into compliance with the provisions of the Convention and (b) to submit to the Compliance Committee by the end of 2005 a detailed implementation strategy (ECE/MP.PP/2005/2/Add.8).
24. In its recent report to Meeting of the Parties (ECE/MP.PP/2008/5/Add.9), the Compliance Committee concluded that Ukraine has failed to implement the measures referred to in the decision and remained in a situation of non-compliance. It also noted with regret the failure of Ukraine to engage sufficiently with the process over a number of years beginning with the process of the review of compliance by the Committee in 2004 and 2005 and for most of the intersessional period of 2005–2008.
25. The Committee, however, welcomed the willingness of Ukraine to engage with the process as expressed by its representatives present at the Committee’s meeting in March 2008 and as demonstrated, to some extent, by the Party’s correspondence with the Committee in 2006. It suggested that the Meeting of the Parties examine the implementation strategy, should it be submitted in May 2008, as indicated by Ukraine. In the light of the outcomes of such examination and taking into account the fact that since the adoption of decision II/5b in 2005 the Party concerned has not taken adequate steps to bring about compliance with the Convention, the Meeting of the Parties may also wish to consider whether and which further measures it was going to take.
26. The Meeting of the Parties is expected to address the situation at its upcoming third meeting in June 2008.
27. The organizations agreed: (a) to continue to coordinate their actions; (b) each to notify the other organizations on the outcomes of key events in the following months (including meetings of Parties); (c) to join, if possible and appropriate, a Bern Convention “on-the-spot appraisal visit” to Ukraine in July 2008; and (d) to meet again within one year to exchange information and experiences on specific issues common to the agreements and also to review developments on the matter discussed at the present meeting. The organizations agreed to invite the European Commission to the follow-up meeting, which would be more focused on implementation of practical measures.