The general situation and UN rules also affect the operation of agreements, programs and processes related to environmental protection.
From the point of view of human logic, it would be right to exclude russia from participation in environmental conventions before assessing the real damage done to the environment from the hostilities, and to establish a system of penalties and mechanisms to restore the environment at the expense of the perpetrator. But there is currently no legal basis for such decisions.
However, to continue to operate on inertia and routine procedures is nonsense today. After all, russia’s aggression has changed the state of the environment and disrupted common intentions regarding, for example, the greening of the economy or sustainable development in general.
The damage done to the environment will be felt – today no one knows for how long and how exactly. It is necessary to reconsider the general powers of the UN and the Security Council, in particular, on the dependence of environmental programs and agreements on their violator, on the ability to solve environmental problems in emergencies.
Tamara Malkova, ICO Information Center “Green Dossier”
Read the full article in Ukrainian on the Ukrinform blog
UN: the power and powerlessness of procedures in the context of environmental protection
During all these long days and nights of russia’s war against Ukraine, numerous structures, programs, and people at the UN have demonstrated their attitude to the aggressor country.
Through official statements, public speeches, tweets, or a demonstrative exit from the negotiating room during the speeches of the representatives of the russian federation (here is one of the examples – Europe’s mayors turn their backs on Russia).
Nevertheless, russia was not expelled from the UN Human Rights Council – only its membership in the structure was suspended. And although russia has lost all rights to be a member of this respected organisation, although russia is perceived as an aggressor by the vast majority of the UN General Assembly members (as evidenced by the vote), still, it is not possible to completely get rid of russia’s influence on the UN structures.
The UN is a very complex organisation: thematic programs, territorial bodies, international agreements, and conventions – all these structures have their own rules and regulatory mechanisms, except the general ones. Programs such as UNEP, for example, do not have a mechanism for excluding a country without a general exclusion from the UN. Theoretically, a member of the United Nations who constantly violates the principles contained in the Charter can be expelled from the UN by the General Assembly (although this has never happened in the history of the UN). But the main role here is played by the UN Security Council without a recommendation of which it is impossible to make such a decision.
Can the UN Security Council stop the war? Theoretically, yes. It is this structure that is responsible for world peace and security. But the statute of the Security Council provides for the possibility of vetoing by five permanent members. This is exactly what russia, one of the five permanent members, is doing. Overall, since 1946, all five permanent members of the Security Council have exercised this right in various situations: 49% of vetoing was from the Soviet Union and its successor, russia, 29% from the United States, 10% from Great Britain, and 6% from China and France.
So can the UN Security Council stop the war? Practically – no, because of russia’s position.
The UN General Assembly may convene an emergency session in case the Security Council fails to make a decision. The General Assembly can have its say, as it happened, for example, on March 2 this year. However, unlike Security Council resolutions, General Assembly resolutions are not binding, meaning that countries are not obliged to comply with them (further explanation – here).
The general situation and UN rules also affect the operation of agreements, programs, and processes related to environmental protection.
To isolate the aggressor country and the violator of numerous international agreements, all that remains is to use mechanisms to suspend participation and block certain activities.
That is what is being done today in many areas of UN activity. Some of the examples are: the conclusion of the UN General Assembly, the resolution of the International Labour Organisation; the declaration of 21 mayors of European cities condemning russia’s aggression, demanding Ukraine to be recognized as a priority for Europe, calling for contributing to the reconstruction of Ukrainian cities, and supporting Ukrainian municipalities and civil society. By a special resolution, the Executive Committee of the United Nations Economic Commission for Europe urges all its units to take into account the ongoing aggression of the russian federation and gross violations of international law when deciding on candidates for chief positions, including chairing bureaus and steering committees. The resolution also calls for cancelling any invitations to city officials of belarus and russia.
Ukraine appealed to 13 UN conventions and the UNESCO Man and the Biosphere program to suspend russia from multilateral environmental agreements. The demand includes terminating russia’s membership in the governing and advisory bodies.
Russia must be deprived of the right to vote in the UN climate negotiations since its actions pose a threat to the world and hinder the adaptation to climate change, as the Ministry of Environment and Natural Resources of Ukraine stated.
The general provisions on the validity of all international legally binding agreements are regulated by the Vienna Convention on the Law of Treaties. In particular, this convention states that every treaty in force is binding upon the parties to it and must be performed by them in good faith.
Russia’s invasion undermines the foundations of the international legal order, insists the Ukrainian Ministry of Environment. This makes it impossible to achieve the goal of certain conventions, so there must be some protective mechanism in case of urgent needs, emergencies. But international environmental agreements continue to work according to established rules, according to the procedure worked out and agreed upon by all participants. Each treaty, in addition to the general rights under the Vienna Convention, has its own rules and procedures, as well as the obligation of the parties to support all decisions of the treaty.
For example, the Ozone Secretariat, at the request of the Ukrainian Ministry, said that violations of other treaties, such as the UN Charter, are issues that go beyond the ozone agreements. The Secretariat suggested the Government of Ukraine submit confirmatory information to the Compliance Committee so that the parties to the Montreal Protocol could consider Ukraine’s request in the context of the Protocol’s Non-Compliance Procedure. The Ozone Secretariat will inform the parties in an information note for the forthcoming forty-fourth meeting of the open-ended working group of the Parties to the Montreal Protocol, to be held from 11 to 16 July 2022 in Bangkok.
At the request of the Ukrainian Ministry of Environment, the Law Division of the United Nations Environment Programme (UNEP) has provided clarification on the membership in UNEP – it is universal for all states. According to it, the exclusion of any UN member state from UNEP is possible only if the state is excluded from the UN (regarding the possibility of exclusion from the UN – see above on the role of the UN Security Council).
The same goes for the United Nations Human Settlements Programme (UN-Habitat). Russia’s exclusion from UN-Habitat is not possible, but the election of russia’s candidate to the Executive Board Bureau had been blocked, and Poland’s representative was elected. Apart from that, the termination of the powers of the russian federation representative as President of the UN Advisory Committee of Local Authorities (UNACLA) was initiated.
At the same time, to prevent the election of russia to the governing bodies of international organisations, the election of russia to the bureau of the 6th session of the UN Environment Assembly (UNEA-6) was blocked, and a representative of the Ukrainian relevant agency was elected.
It should be noted, however, that the 5th session of the UN Environment Assembly (UNEA-5) did not mention russia’s aggression against Ukraine, although this honorable meeting took place in the first days of the large-scale invasion, from February 28 to March 2.
That is, to prove the violation of the environmental agreement, it is necessary to go through a long procedure provided by this agreement. And until a decision on non-compliance is made, the perpetrator will have equal rights with other parties to the agreement. Thus, despite the great support of Ukraine by countries and their representatives in various UN structures, procedures and statutory rules do not allow them to take real measures to isolate the aggressor country.
The rules have been developed for decades; they are balanced, reasonable, and orderly. But it turned out that in case of emergency, in the case of a real threat, their balance becomes a brake, orderliness turns into inertia, and the rule of law is not able to resist the law of force.
From the point of view of human logic, it would be right to exclude russia from participation in environmental conventions before assessing the real damage done to the environment from the hostilities and to establish a system of penalties and mechanisms to restore the environment at the expense of the perpetrator. But there is currently no legal basis for such decisions.
However, to continue to operate on inertia and routine procedures is nonsense today. After all, russia’s aggression has changed the state of the environment and disrupted common intentions regarding, for example, the greening of the economy or sustainable development in general.
One of the examples is the Environment for Europe process. It began in 1991, intending to create a new “European ecological space” in connection with the end of the West-East confrontation. The concept of building a “common European home” was developed by the conferences of environment ministers of the UNECE region (European countries, former Central Asian republics of the Soviet Union, Israel, Canada, USA). During these years, eight ministerial conferences were held, international agreements were approved, important environmental conventions were adopted, and programs were developed to further improve the state of the environment on the Eurasian continent.
In fact, the state of the environment is regularly assessed by reputable scientific institutions, and based on these studies the assessment of the state of the environment in the UNECE is announced.
The Environment for Europe process has developed a unique mechanism for public participation in the process in parallel with official activities. Public participation has become an integral part of all environmental activities on the continent, as stated in the Aarhus Convention, which was also formed as part of the Environment for Europe process.
The next ministerial conference is to take place this autumn in Nicosia (Republic of Cyprus). As it should be, the preparations for it started a long time ago, and now the main documents on greening the economy, development of sustainable infrastructure, application of the principles of the circular economy in tourism, etc. have been practically completed and prepared for signing. However, the problem is that these drafts began to be written long before the large-scale russian invasion of Ukraine, so they do not take into account the real situation of the environment.
Nevertheless, no one knows the real situation today, and the state of the environment at the time of the ministerial conference itself is even more unknown. Today, environmental NGOs and official institutions are carefully collecting information on crimes against nature trying to analyse and assess the damage done to the environment by hostilities. Nonetheless, it is clear that there is no basis for continuing the whole process of Environment for Europe.
There cannot be an assessment of the state of the environment on the continent as hostilities continue and the russian army daily commits crimes against nature. Today, no one can say how much more damage the russian troops will cause to the environment of Ukraine and how these criminal actions will affect the state of the environment on the entire continent. Consequently, it is impossible under such conditions to continue, as usual, the whole process of Environment for Europe. This term should also be applied to it – to suspend. Suspend until russia ends the war against Ukraine, until a proper assessment of the state of the environment is made, based on which it is necessary to start Environment for Europe.2, which will name the perpetrators of crimes against nature, identify ways to restore the environment and amounts and sources of compensation.
Ukraine is a party to more than 40 multilateral environmental agreements: global and regional sectoral agreements (marine protection, biodiversity protection, air quality, etc.), all major global agreements (Climate Framework, Kyoto Protocol, Paris Agreement, biodiversity protection, Cartagena Protocol, Bonn Convention, Vienna Convention and its’ Montreal Protocol on Substances that Deplete the Ozone Layer, the Basel Convention, the Stockholm Convention, CITES, etc.). Ukraine is a party to all environmental agreements of the European region developed under the auspices of the Council of Europe and the UNECE: Berne Convention, Aarhus Convention, Espoo Convention, SEA Protocol, Water Convention, Convention on Long-Range Transboundary Air Pollution, Convention on the Transboundary Effects of Industrial Accidents, Convention on the Protection of the Black Sea against Pollution, ICPDR, Carpathian Convention and others.
The implementation of all these agreements is in question today due to russia’s aggression. Even if we wake up tomorrow morning in a world without shellings and air-raid sirens, the state of the environment will not improve.
The damage done to the environment will be felt – today no one knows for how long and how exactly. It is necessary to reconsider the general powers of the UN and the Security Council, in particular, on the dependence of environmental programs and agreements on their violator, on the ability to solve environmental problems in emergencies.
Tamara Malkova, ICO Information Center “Green Dossier”
