Case: Canal Danube-Black Sea LEGAL ACTIONS to PROTECT DANUBE DELTA

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 Ukarine, State Enterprise “ Delta Lotsman ”, Ministry of Environment of Ukraine, National Academy of Sciences of Ukraine, Danube Biosphere Reserve, bodies of local self-government of the Odessa oblast .

Essence of problem: The government of Ukraine is planning to build the canal Danube - Black Sea to renew the navigation in the Ukrainian part of the Danube mouth.

Taking into consideration the high natural value and rich biodiversity, the whole Ukrainian part of the Danube delta was included into the territory of Danube Biosphere Reserve .

The construction of the canal Danube-Black Sea endangers the biodiversity conservation of the Danube delta, and the process of the canal planning is being carried out with the violation of the national legislation and international obligations of Ukraine in the spheres of environment protection and public participation.

Main facts:

The case is processed on the national and international levels.

NATIONAL LEVEL

Withdrawal of straits and internal ponds from the Danube Biosphere Reserve

Challenging of the Decree of the President of Ukraine in the court

Withdrawal of straits and internal ponds from the Danube Biosphere Reserve

To facilitate construction of the canal Danube - Black Sea through the core zone of the Danube Biosphere Reserve , Vilkivska city council initiated a court case aiming at withdrawal of all straits and internal ponds from the territory of the reserve.

Kilijska region council is the defendant in court , the Danube Biosphere Reserve is involved as the third party. Olga Melen', a lawyer of Ecopravo-Lviv, represents the interests of the Danube Biosphere Reserve.

The Commercial Court of Odessa oblast considered the suit filed by the Vilkivska city council and took a decision on November 24, 2003 in favor of the plaintiff. The court declared illegal the State act on the right to permanent land use, issued to Danube Biosphere Reserve

The Kilijska region council appealed this court decision. On February 12, 2004 Appeal Commercial Court of Odessa oblast upheld first instance court's decision.

The Kilijska region council, disagreeing with the decision by the appeal court filed cassation appeal to the Supreme Commercial Court of Ukraine.

(You can read additional information on the case in the news archive)

Challenging of the environmental expertiza conclusion in court

On November 24, 2003 Ecopravo-Lviv filed a suit against the Ministry of Environment of Ukraine challenging environmental expertiza conclusion №105 regarding the Technical and Economic Assessment (TEA) of Investments of construction of the Danube-Black Sea deep-water navigation canal on the Ukrainian part of the Danube delta.

On February 10, 2004 the Commercial Court of Kyiv made a decision in favor of “Ecopravo-Lviv”. The Court declared invalid the environmental expertiza conclusion N105 of July 10, 2003 .

It was for the first time in the practice of Ecopravo-Lviv, that the judge implemented the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters in his decision while grounding our right to go to court to challenge environmental expertiza conclusion. Moreover, the court recognized the fact that the Ministry of Environment of Ukraine limited our right on timely information and right of the public (including Ecopravo-Lviv) to participate in the environmental expertiza process.

The Ministry of Environment appealed this decision to the Kyiv Appeal and the latter annuled first instance court's decision. Now we are preparing a cassation appeal on the Appeal Court decision.

(Additional information on the appeal one can find in news archive)

Challenging of the Decree of the President of Ukraine in court

A citizen, Skrylnikov D., filed a complaint to the Pecherskiy local city court of Kyiv challenging Paragraph 3 of the Decree of the President of Ukraine “On the decision of National Security and Defense Council from June 6, 2003 “On the status of the implementation of 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”.

Paragraph 3 of this Decree amended the President's Decree of August 10, 1998 “On the creation of the Danube Biosphere Reserve” and changed the wording that the territory of the reserve include “straits and internal ponds and 2-km aquatorium of the Black Sea ” for the wording “aquatorium of the Black Sea ”.

On January 12, 2004 the Pecherskiy local city court of Kyiv rendered a decision to dismiss the complaint of the citizen D. Skrylnikov challenging par.3 of Decree of the President of Ukraine, that has amended the President's Decree “On the creation of the Danube Biosphere Reserve”.

The judge noted , that “with regard to the nature of the changes to the President's Decree of 10.08.1998, the court does not consider that any changes have been made to the borders, category or status of the Danube Biosphere Reserve”.

Disagreeing with the court decision, the citizen D.Skrylnikov appealed it.

(The additional information on this you can find in the news archive).

INTERNATIONAL LEVEL

Ecopravo-Lviv filed a complaint with the Secretariat of the Espoo Convention and with the Implementation Committee of Espoo Convention regarding violation by Ukraine of aforementioned Convention.

The Implementation Committee of Espoo Convention considered our complaint (the first complaint ever submitted to the Implementation Committee) and suggested to supply the additional information on any significant adverse transboundary impact that canal construction in the Bystre mouth would pose.

On December 16-18 , 2003 , at its 5th meeting the Committee decided that it could not consider the complaint since it was submission from an NGO. However, the Committee made a proposal to be adopted at the 3rd Meeting of the Parties of Espoo Convention (June 1-4, 2004) to develop criteria for dealing with submission from NGOs.

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.

You can find this report in the Internet at the web-site

On April 26, 2004 , Ecopravo-Lviv sent a Letter of Emergency Notification to the Secretariat of the Convention on the Migratory Species and African-Eurasian Migratory Waterbird Agreement. We urged the Secretariat to undertake an immediate investigation with regards to the planned construction of the canal by Ukraine. O ur action seeks to protect Slender-billed Curlew ( Numenius tenuirostris ) , a critically endangered species that is estimated to have declined in number to as few as 50 individuals.

(Additional information you can find in the news archive)

More information can be found in Environmental Advocacy Newsletter #24 (In Ukrainian) (pdf  1.16 Mb)