gototopgototop
Salus populi suprema lex . Marcus Tullius Cicero

The issue of publication of international agreements on greenhouse gas emissions quotas trading will be decided in a court
Monday, 30 July 2012 07:37

23160

On 18.07.2012 District Administrative Court of Kyiv opened a proceedings in the administrative case filed by Expert Advisory Center "Legal analytics" (EACLA, Plaintiff) to the Ministry of Justice of Ukraine and the State Environmental Investment Agency of Ukraine (SEIA) about declaring unlawful the omission due to not publication of international agreements on greenhouse gas emissions trading (the agreement on assigned amount units (AAUs) trading) signed by SEIA with Japan and Spain, and obligation of public authorities to take measures for their publication.

The cause of action is a violation by state governmental authorities of public's right on access to information about the AAUs trading agreements, signed on international level on the basis of international agreements, ratified by Ukraine, namely the UN Framework Convention on Climate Change and the Kyoto Protocol.

According to the Law of Ukraine "On International Treaties and Agreements" existing international treaties of Ukraine must be published in Ukrainian in the "Compilation of existing international agreements of Ukraine" and other official publications of Ukraine, international treaties of Ukraine must be included in the prescribed manner to the Unified state register of legal acts. In the case with contracts of AAUs trading, this provision is not implemented.

According to the position of the Ministry of Justice, in deciding the status of AAUs trading agreements they fall under the penumbra of the Law of Ukraine "On international treaties and agreements", as in accordance with Article 1 hereof, it shall apply to all international treaties of Ukraine, regulated by international law.

SEIA, as the body authorized to conduct international activities under the Kyoto Protocol to the UN Framework Convention on Climate Change, conclude agreements on AAUs trading according to a decision of the Cabinet of Ministers of Ukraine, agreed with the Ministry of Economy and Ministry of Finance of Ukraine. The SEIA have not filed concluded agreements about AAUs trading for registration to the Ministry of Justice. Thus by restricting access to information about AAUs trading agreements, signed by Ukraine, and the violations of the following legal provisions are challenged in the court:

- paragraph "B", part 5, article 5 of the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention) (obligation to take measures for the purpose of disseminating international treaties, conventions and agreements on environmental issues);

- paragraph 1, part 1, article 5 of the Law of Ukraine "On Access to Public Information", under which access to information is provided by the systematic and rapid disclosure of information in official publications;

- part 1, article 21, and part 3, article 22 of the Law of Ukraine "On International Treaties and Agreements" (the obligation to publish agreements in the "Compilation of existing international agreements of Ukraine" and other official publications of Ukraine).

The statement of claim also challenged inaction of the Ministry of Justice when considering the preceding appeal of the plaintiff, who raised the issue of access to information about AAUs trading agreements, because no measures for restoration of the public's right on access to information was taken. Despite the fact, that the Ministry of Justice determined the status of agreements on international AAUs trading as international agreements of Ukraine, no concrete measures for making them available to public were taken.

It should be noted that the Regulation of the Ministry of Justice approved by the President of Ukraine, provides the obligation of official publication by the Ministry of Justice of current international agreements of Ukraine. Central governmental authorities, who conclude international treaties of Ukraine of intergovernmental character, convey texts of such agreements to the Ministry of Justice for their inclusion in the State Register of legal acts and publication in the newsletter "Official Herald of Ukraine".

In addition, according to part 11 of paragraph 4 of the Regulation of the Ministry of Justice, the Ministry of Justice is responsible for the compliance with the legal requirement on state registration of legal acts, requires submission of appropriate regulations for state registration or its cancellation, submits proposals to eliminate detected violations and drawbacks, and to prosecute officials guilty for violations in this sphere. Thus, the Respondent did not take an action under this provision of the Regulation of the Ministry of Justice.

Thus the central authorities, in particular the SEIA and the Ministry of Justice of Ukraine are inactive in terms of taking measures to publish the above mentioned international agreements on AAUs trading, signed on behalf of Ukraine.

Plaintiff asks the court:

1.To declare illegal SEIA’s omissions in connection with the failure of take measures to publicize AAUs trading agreements from 18.03.2009 signed between the National Environmental Investment Agency and the Japanese Organization for development of new energy technologies (NEDO) (Japan), and from 25.11.2009 signed between the National Environmental Investment Agency and the Department of Environmental, Agricultural and Marine Affairs of Spain.

2.To obligate SEIA to submit for registration to the Ministry of Justice of Ukraine AAUs trading agreements from on 18.03.2009 signed between the National Environmental Investment Agency and the Japanese Organization for development of new energy technologies (NEDO) (Japan), and from 25.11.2009 signed between National Environmental Investment Agency and the Department of Environmental, Agricultural and Marine Affairs of Spain.

3.To declare illegal the omissions of the Ministry of Justice of Ukraine because of the failure to take measures to eliminate violations connected with non-disclosure of AAUs trading agreements, identified in the appeal of the plaintiff to the Ministry of justice (# 06/12 from 06.04.12).

4.To obligate the Ministry of Justice to make an official publication of AAUs trading agreements from 18.03.2009 signed between the National Environmental Investment Agency and the Japanese Organization for development of new energy technologies (NEDO) (Japan), and from 25.11.2009 signed between the National Agency of Environmental Investment and the Ministry of Environment, Agricultural and Marine Affairs of Spain.

Preliminary court hearing of the case is scheduled for 28.08.2012.