In fact, the only official legal act determining a procedure of calculation and assessment of damage and losses caused by russian federation is a Resolution of the Cabinet of Ministers of Ukraine #326 from March 20, 2022 (latest changes from March 03, 2023). This Resolution of CMU establishes the Order of determination the damage and losses caused by the military invasion of russianfederation (hereinafter – the Order).
This Order indicates the state bodies and institutions responsible not only for the calculations of damage and losses basing on the appropriate methodologies, but also for the development of the drafting mentioned methodologies and for the approval of these methodologies.
Just for general understanding, a methodology – is an official document approved by the appropriate state body determining how to assess and calculate cases of damage.
❗️Why the Resolution #326 is so important ?
This Resolution determines a minimum number of damage types caused by russian aggression. Besides, it states that the Ministry of Justice of Ukraine should use these assessments and calculations (outcomes based on these methodologies) in all foreign jurisdictions in cases and events related to compensations of damage caused by international armed conflict/armed aggression of other countries on the territory of Ukraine (paragraph 4 of the Resolution).
According to the Constitution of Ukraine (Art. 13), land, water, subsoil, atmospheric air and other natural resources belong to the People of Ukraine. The Constitution states that on behalf of the People of Ukraine, the Ukrainian stateauthorities and local authorities are managing by these natural resources in favor of the People of Ukraine.
That’s why we consider the issue of the environmental damage is directly oriented for the People of Ukraine.
1️⃣ Damage caused to land resources (s.p. 9 p. 2 of the Order) – pollution and littering of soils and land plots.
Responsible for methodology drafting – State Environmental Inspectorate of Ukraine (hereinafter – the SEI).
Responsible for methodology approval – the Ministry of Environmental Protection and Natural Resources of Ukraine (hereinafter – the Ministry of Environment) in agreement with the Ministry of Reintegration.
Responsible for assessment and calculations – the SEI.
The methodology is approved by the Order of the Ministry of Environment #167 from April, 04, 2022.
CLAUSE: Calculations and assessments are being made by authority that is the developer of the methodology at the same time. This fact potentially can be considered as the conflict of interest.
2️⃣ Subsoil losses (s.p. 10 par. 2 of the Order).
Responsible for methodology drafting – the Ukrainian Geological Survey (hereinafter – the UGS).
Responsible for methodology approval – the Ministry of Environment agreed with the Ministry of Reintegration.
Responsible for assessment and calculations – the UGS.
The methodology is approved by the Order #366 from September, 09, 2022.
CLAUSE: Calculations and assessments are being made by authority that has no competence in calculation and assessment, that is a developer of the methodology at the same time. This is not only the conflict of interest but also the execution by inappropriate state body. Resolution of CMU #1174 from December, 30, 2015 does not authorize the UGS with the assessment function.
3️⃣ Water losses (s.p. 11 par. 2 of the Order) – water pollution and littering.
Responsible for methodology drafting – the SEI.
Responsible for methodology approval – the Ministry of Environment agreed with the Ministry of Reintegration.
Responsible for assessment and calculations – the SEI.
The methodology is approved by the Order of the Ministry of Environment #252 from July, 21, 2022.
CLAUSE: Calculations and assessment are being made by authority that is the developer of the methodology at the same time. This fact can be considered as the conflict of interest.
4️⃣ Atmospheric air pollution (s.p. 12 par. 2 of the Order).
Responsible for methodology drafting – the SEI.
Responsible for methodology approval – the Ministry of Environment) agreed with the Ministry of Reintegration.
Responsible for assessment and calculations – the SEI.
The methodology is approved by the Order of the Ministry of Environment #175 from April, 13, 2022.
CLAUSE: Calculations and assessment are being made by authority that is the developer of the methodology at the same time. This fact can be considered as the conflict of interest.
5️⃣ Loss of forest resources (s.p. 13 par. 2 of the Order)
Responsible for methodology drafting – the State Forest Resources Agency of Ukraine (the SFRA).
Responsible for methodology approval – the Ministry of Environment agreed with the Ministry of Reintegration.
Responsible for assessment and calculations – the SFRA.
The methodology is approved by the Order of the Ministry of Environment #414 from October, 05, 2022.
CLAUSE I: Calculations and assessment are being made by authority that has no competence in calculation and assessment, that is a developer of the methodology at the same time. This is not only the conflict of interest but also the execution by inappropriate state body. Resolution of CMU #521 from October, 08, 2014 does not authorize the SFRA with the assessment function).
CLAUSE II: The SFRA is a state holder (manager) of almost 73% of the Ukrainian forests through belonging State Enterprise “Forests of Ukraine”.
Here we see the full range of violations: inappropriate execution of assessment and the conflict of interest due to the fact that the owner of the forests is developing the draft of the methodology and at the same time the owner is also assessing and calculating loss of the forest resources.
6️⃣ Loss of nature reserve fund (s.p. 14 par. 2 of the Order)
Responsible for methodology drafting – the SEI.
Responsible for methodology approval – the Ministry of Environment) agreed with the Ministry of Reintegration.
Responsible for assessment and calculations – the SEI.
The methodology is approved by the Order of the Ministry of Environment #424 from October, 13, 2022.
CLAUSE: Calculations and assessment are being made by authority that is the developer of the methodology at the same time. This fact can be considered as the conflict of interest.
Summarizing these general provisions of the Order approved by the Resolution of the CMU #326 from March, 20, 2022, we may determine the following problems:
1.The Ukrainian Government has determined that the State Environmental Inspectorate of Ukraine is responsible not only for the assessments and calculations of the environmental damage and losses caused to land resources, water resources, atmospheric air and nature reserve fund, but also for the development of the drafts of proper methodologies.
This fact can be recognized as the potential conflict of interests.
From the author’s point of view, Ukraine has to consider the review of the developed methodologies to minimize the risk of the conflicts of interests.
2.The Ukrainian Government has determined the Ukrainian Geological Survey (for subsoil losses) and the State Forest Resources Agency of Ukraine(for forest resources losses) to assess and calculate the proper environmental damages and losses without respect they do not have sufficient power to assess and determine damages and losses as a result of military operations, armed aggression, etc.
For the author’s point of view, Ukraine may solve this problem in compliance with the international legal principle in separating the powers of authorities distinguishing the control and assessment function (e.g. realizing the state policy in the field of the state supervision and control) from the function of forming the state policy in the field of the state supervision and control.
Consequently, if Ukraine has the authorized state body with the powers in assessment of the environmental damage and in the calculation of the environmental losses (state body realizing state policy in the field of environmental supervision and control), so such state body should assess and determine environmental damage and losses caused to natural resources. And, of course, the functions and powers of such state body (authorized to assess and calculate) cannot be used by other state bodies that are authorized to form the state policy in a proper field because this fact (fact of inappropriate functions of the state body) may provide to the Russian lawyers with a chance of objections against facts of the environmental damage and losses in the international courts or quasi-courts.
Such inconsistency of regulatory legal acts has high risks of non-acceptance by international judicial or extrajudicial compensation institutions of damage and losses calculated in accordance with the specified Order.
3.The Ukrainian Government for unknown reasons, has assigned the responsibility for the developing the draft of the methodology and for the determination the damages and losses to the body, that is also the owner of the property to which the damage was caused.
Thus, the State Forest Resources Agency of Ukraine is an authorized managing state body for the State Enterprise “Forests of Ukraine” (code 44768034) and according to the State Register of the enterprises and companies of Ukraine, the State Forest Resources Agency of Ukraine is the owner of the State Enterprise “Forests of Ukraine” (code 44768034). In other words, the State Forest Resources Agency is an interested entity to get as much compensations for the forest resources losses as it is possible, however it is also involved into the assessment and calculation process of the forest resources losses.
Due to the fact that the State Enterprise “Forests of Ukraine” (code 44768034) is owning more than 73% of the whole forest areas throughout Ukraine, in general Ukraine has a high risk to loose a chance to get compensations for the forest resources losses caused by Russian invasion.
And other directions of the losses have also the similar problems as the environmental activity has.
Of course, such omissions in the Resolution #326 of the Cabinet of Ministers of Ukraine can also be explained by the emergency need to have at least some documents (in fact, instructions) as soon as possible to begin assessments and calculations of the different cases of the war to compare similar damages (for example, which oil depot explosion caused more/less environmental damage).
Probably, this is the reason why many Ukrainian scientists and experts often call the already approved methodologies (developed and approved in accordance with the Resolution of the CMU #326 from March 20, 2022) as “temporary” methodologies.
As we know, in 2022 the Operative Headquarter of the State Environmental Inspectorate of Ukraine specially established an expert working group to prepare drafts of the new methodologies for assessing the environmental damage with the involvement of representatives of international organizations. At the moment the work is in process.
But now all of us, lawyers, advocates, ecologists, politicians and government officials, we must understand one thing – we must all work for a single goal and with the only goal – to bring the Russian terrorist state to justice in international judicial bodies, regardless of whether it will be a permanent international court or quasi-court (commission) acting on the Ad Hoc principle.
⚠️ We are not analyzing the compliance of adopted in 2022 methodologies with the international principles of assessment, we are not analyzing the procedure of the collecting the environmental losses, however the author is trying to show to the Ukrainian government, to the international partners of Ukraine only basic legal principles that have not been implemented into the Resolution #326 from March 20, 2022 due to the fact that such omission may cause to the tragic problem of impossibility of collecting a part of the forest resources losses caused by Russian invasion.
This article has no purpose to assist aggressor how to avoid responsibility, but it has a purpose to assist the Ukrainian government to collect environmental losses as compensations from the Russian terrorist state.
🇺🇦 Each citizen of Ukraine is owning a part of the national natural resources of our country and according to the Art. 13 of the Constitution of Ukraine each citizen may require from the Ukrainian state authorities to manage by the Ukrainian natural resources efficiently, including to receive as much compensations as possible.
Автор: Андрій Мороз
