The Parliament of Ukraine adopted draft law 7475 in the first reading. The purpose of the draft law is to strengthen the protection of the state border of Ukraine, primarily by expanding the border strip to 2 kilometers. For this purpose, the draft law defines the procedure for removing the relevant lands from the nature reserve fund (nature reserves), but without changing the status, and transferring them to the State Border Guard Service. Thus, giving the State Tax Service the opportunity to make the border strip more secure and controlled. Undoubtedly, the protection of Ukraine’s borders is one of the main tasks of the national security of our state. Strengthening the state border is necessary, but will the adoption of this bill really contribute to this?
The state border of Ukraine is not just a line on the map, which in the view appears as a mineralized demarcation strip. In fact, depending on the terrain, it can also be a riverbed, the middle of an impassable swamp or a thicket deep in the forest.
Thus, almost all border areas with aggressor countries in the north of Ukraine – forests and impassable swamps – create an insurmountable obstacle to the advancement of military equipment. Keeping areas in a natural wetland state is the best safeguard for large-scale re-invasion in the future. We have already described in detail how the attack on Kyiv was stopped precisely by creating a water barrier – flooding the valley of the Irpin River. During the invasion of russian troops in northern Ukraine (in February-March 2022), dozens of tanks and other combat vehicles could not overcome them. These facts prove that in order to increase the defense capability, it is necessary to hydrogenate swamps in the north of Ukraine. The better these landscapes are preserved in their natural state, the better they will perform the function of protecting Ukraine from military invasion. However, surprisingly, such an obvious idea was not proposed to implement a nature-based solution – flooding the Polissya swamps and transferring them to the status of a nature reserve fund in order to strengthen the defense capability.
Currently, in the two-kilometer strip along the state border of Ukraine with the russian federation and the republic of belarus, 120,000 hectares of land of the nature reserve fund are located. In addition, more than half of the area of this strip on the border with the republic of belarus – objects of the Emerald Network – protected areas of international importance, announced at the request of Ukraine by the Council of Europe.
Similarly, protected areas from the belarusian side gravitate to the border with Ukraine. This is not an accident, because the border zone between Ukraine and belarus is located in the natural zone of Polissya along the valley of the Pripyat River, on the water content of which the mild climate of the whole of central Europe depends. It is here, in the zone of limited economic activity, where much more undisturbed natural ecosystems are some of the most valuable and wildest and inaccessible natural corners of the north of Ukraine.
Ukraine has an excellent experience in creating protected areas due to the strict restriction on people’s stay in them. We are talking about the creation of the Chernobyl nuclear power plant in the exclusion zone, the territory which over the past 30 years has become the largest natural territory of Central Europe, a biosphere reserve. Currently, it is the largest protected area of all located along the border. This example proves that restored swamps and forestry lands located in the border strip may soon become impassable oases of biodiversity if allowed to recover. We have already calculated that 174.4 thousand ha of the border strip along the border with the aggressor countries – these are natural territories not part of the nature reserve fund. Nothing prevents Ukraine from declaring them as territories of nature reserves with a particularly strict protection regime and adding 120 thousand hectares of protected lands to the existing ones. Such a decision will be extremely useful for the conservation of biodiversity, since the most important factor in the loss of wildlife is economic activity, which will not be here now. And the state’s economy will not suffer in any way from such a decision. The Ministry of Finance of Ukraine in its conclusion notes that the draft law does not have sufficient financial and economic justification. But the initiators of the bill believe otherwise.
The preservation of the nature reserve fund as a national treasure of Ukraine is determined by the laws of Ukraine and until 2022 there were no questions in Ukraine whether the border strip could be coordinated with the territories of the nature reserve fund. However, now this issue has been brought to the highest level of decision-making – at the level of amendments to the legislation.
At a time when the issues of Ukraine’s defense are primarily on the agenda, the opinion of experts that could agree on the tasks of defense and nature protection is not requested. Thus, now in Ukraine the draft law 7475 has been developed and is being prepared for the second first reading, which, by its purpose, is designed to strengthen the protection of the state border of Ukraine, but in content, it is primarily devoted to the procedure for removing land from the nature reserve fund.
Defense objectives: to abolish what was to be defended?
Let’s examine the draft law No. 7475, namely its version adopted in the 1st reading on September 21, 2022 (here it should be said that the Environmental Committee of the Verkhovna Rada of Ukraine objected to this draft law and proposed to finalize it). According to the explanatory note to the Draft Law, its purpose is to ensure the development and improvement of the national system of protection and protection of the state border, to clarify the powers of the State Border Guard Service of Ukraine and other military formations and law enforcement agencies of Ukraine to perform tasks to strengthen the protection of the state border.
At the same time, some provisions of the draft law may lead to the loss of the nature reserve fund of Ukraine and thereby jeopardize the preservation (and possibly become a direct cause of destruction) of Ukraine’s national heritage. Consider the proposed changes.
The draft law proposes to amend the Law of Ukraine “On the Nature Reserve Fund of Ukraine” by establishing that for the period of martial law and within one year from the date of termination or abolition of martial law in Ukraine, the change of boundaries or abolition of the status of the territories of the nature reserve fund for the purpose of construction, arrangement and maintenance of engineering, technical and fortification structures, fences, border signs, border gaps, communications within the border strip is carried out by the State a body authorized to make decisions on the creation or declaration of territories of the nature reserve fund on the basis of a petition of the central executive body that implements the state policy in the field of protection of the state border of Ukraine.
This norm actually transfers the powers of the Ministry of Ecology and Natural Resources and local authorities to change the boundaries and abolish the status of territories and objects of the nature reserve fund to the State Border Guard Service and establishes a new procedure that provides for participation in the process only of the State Border Guard Service and the President of Ukraine (for territories and objects of the nature reserve fund of national importance), the State Border Guard Service and regional councils (for local significance, respectively). Accordingly, no biological and environmental component is no longer important and decision-making regarding the territories created for the protection of particularly valuable natural objects no longer requires any assessment of such value, because a priori it eliminates such value despite objective conditions. The environmental value of the territory will no longer matter when deciding whether to abolish or reduce the area of protected areas.
Such a rule may lead to the liquidation or cause extraordinary damage to the capabilities of the following protected areas in the performance of their functions for the preservation of nature: Shatsky National Nature Park and Pripyat-Stokhid National Park within the Volyn region, Nobel National Nature Park and Rivne nature reserve within the Rivne region, Polissya and Drevlyan nature reserve within the Zhytomyr region, Chornobyl radiation and ecological biosphere reserve within the Kyiv region, National Nature Park “Desniansko-Starogutsky” and Hetmansky National Nature Park within the Sumy region, National Nature Park “Dvorychansky” in Kharkiv region and many other protected areas.
In general, the proposed by the draft law 2-kilometer strip on the border with belarus contains about 65 thousand hectares within protected areas and another 56 thousand hectares of such territories along the border with russia. In total, along the land border with the aggressor countries, 90 objects of the nature reserve fund of various categories are located.
In addition, it is important to note that the draft law provides that such changes are introduced only for the period of martial law and within one year from the date of termination or abolition of martial law in Ukraine and, however, it proposes to make final decisions on the removal of territories from the nature reserve fund. So it turns out to be “temporary final decision-making”?
As a result, a precedent is created for depriving the Ministry of Ecology and Natural Resources of previously exclusive powers in matters of reproduction and protection of the nature reserve fund. It turns out that the Ministry of Ecology and Natural Resources will be responsible for preserving the fact that without consent it will be canceled by other state bodies. In particular, such a responsibility exists at the international level, because it is the Ministry of Ecology and Natural Resources that is the body that deals with protected areas of international importance.
The question arises, what will happen next? It is possible that in the near future there will be precedents for the abolition of the objects of the nature reserve fund by the decisions of the Ministry of Regional Development or the Ministry of Infrastructure, in order to extract rubble, and sand harvest wood for defense purposes. However, we should not forget that the nature reserve fund is a national treasure of Ukraine (this is a legislative norm) and its protection itself is the task of defending Ukraine. When the goal of the defense of the state becomes a means of its defense, which is destroyed in the process, statehood as such becomes senseless and self-destructive.
Among other things, the Draft Law proposes to supplement Article 46-1 of the Land Code of Ukraine with a new part three, according to which the lands of territories and objects of the nature reserve fund along the state border line are transferred to military units of the State Border Guard Service of Ukraine for the construction, arrangement and maintenance of engineering, technical and fortification structures, fences, border signs, border gaps and communications.
It is worth noting here that the authors of the draft law do not seem to be experts in land law, because Article 46-1 defines restrictions on the use of land of territories and objects of the nature reserve fund and does not regulate the issue of granting land plots of the nature reserve fund for use.
Given that the Draft Law proposes to significantly increase the state border line along the state border line with the Republic of Belarus and the Russian Federation, this provision will lead to the transfer of lands of reserves and national parks, territories and objects of the nature reserve fund of other categories to the State Border Guard Service of Ukraine, whose functions do not include the management of the nature reserve fund. This can lead to the destruction of the natural values of territories and objects of the nature reserve fund, which is protected in the state as a national treasure. This also applies to objects that are part of international biosphere reserves and are protected by UNESCO. At the same time, the functions of the State Tax Service do not transfer all the powers of the Ministry of Ecology and Natural Resources to protect the territories of nature reserves, that is, the authors of the law do not plan to transfer the function of protection and management of protected areas to the State Border Guard Service together with the lands. Thus, this feature will be lost.
What can the approval of the law lead to in such a version?
The changes envisaged by the draft law will lead to the fact that for many years the state will need to spend huge amounts of money on the development of draft decisions on changing the purpose of land plots, eliminating the status of the nature reserve fund, developing land management projects, and solving other land issues. Relevant financial and economic calculations have not been provided to the Draft Law.
Many territories and objects of the nature reserve fund located within the border line are part of protected areas of international importance (wetlands of international importance protected by the Ramsar Convention, emerald network territories protected by the Bern Convention, biosphere reserves of the UNESCO program “Man and the Biosphere”). Implementation of the provisions of the Draft Law may lead to violation of international legislation and loss of the international image of our state. At the same time, the draft law will not in any way lead to a change in the international status of these territories, and even in the event of changes within Ukraine, at the international level this will be considered a violation of Ukraine’s obligations to the EU, UNESCO and the Council of Europe.
What to do?
The way out of the misunderstanding between the protected and border status is. The issues of construction, arrangement and maintenance of engineering, technical and fortifications, fences, border signs, border gaps and communications within the nature reserve fund can be resolved by establishing a special regime of these territories, establishing the right of land easement for individual plots, developing a clear algorithm for cooperation between state authorities and their subordinate organizations. The proposed version will not have to liquidate the objects of the nature reserve fund or change the boundaries of their territory, exposing Ukraine to an international scandal and weakening the European integration capacity of the state.