In Re (#10 October 2012)

Legal Problems of Land Use under Climate Change

In recent years humanity has become more concerned than ever about issues related to changes in climatic conditions of human existence in certain areas. It would seem that legislation does not have anything to do with this. However, climate change is a comprehensive problem of civilization that should be addressed comprehensively legal regulation both in international and in national law.

The priority of the problem is undeniable. The global climate change is one of the trends that influences development of the military and political situation in the world (Order of the President of Ukraine of 8 June 2012 No.390/2012 on the decision of the Council of the National Security and Defence of Ukraine of 8 June 2012 on the new version of the Military Doctrine of Ukraine).

Within the confines of national legislation, this area is governed by the provisions of civil, land, environmental, administrative, and even criminal law. First of all, law-making in different countries deals with efforts to reduce the adverse effects of human activities on the climate system (known as an anthropogenic factor).

At the same time, the system of national legislation should be based primarily on supranational norms, i.e. on the norms of international legal instruments.

For example, the most important instrument in the international legal regulation of greenhouse gas concentrations in the atmosphere, in our opinion, is the United Nations Framework Convention on Climate Change of 1992. It was the Convention that was followed by the well-known Kyoto Protocol.

It should be noted that climate change occurs not only due to human activities. It is driven also by a number of objective factors that cannot be ignored (e.g., the shift of the EarthТs axis). And it is difficult to evaluate the impact of various factors.

Given the structure of industrial production in Ukraine, it is an undisputed fact that land is the most important production factor in our country in the global economic system. At the same time, land is perhaps one of the most vulnerable assets, namely vulnerable to global climate change.

According to experts, the outcomes of iridizations (lesser humidity of the soil layer) can lead to the incapacity of territories for human habitation and economic activities of significant regions of Ukraine, and namely:

Ч the loss of about 15 to 21 million hectares of arable land;

Ч the loss of annual gross yield of 24 to 40 million tons of high-quality grains and other food crops;

Ч uncontrolled migration of the steppe zone population to the northern regions of the country due to the inability to continue agricultural production, shortage of fresh water (Alexander Ivashchenko / Kalahari Ч Ukrainian Steppe Zerkalo Nedeli. Ukraine Issue 31, 7 September 2012).

According to Ukrainian Agriculture Minister Nikolay Prisyazhniuk in the last 20 years the temperature has risen by 2 degrees, and so the agricultural sector in Ukraine will suffer. He said, УSugar beet migrated 150 km from south to north, and the same is true of soybeans. We can see already that harvests in the north are double those in the south. Therefore, it is necessary to ensure there is an efficient system of irrigation in placeФ.

Thus, we can say that in the near future the existing legal mechanisms for regulating the use of land would not be capable to properly address the issues that arise. This primarily refers to the change in the uses of land. Just imagine a situation where a modern businessman leases agricultural land for a long term in the southern part of our country, for example, somewhere near the unique Oleshkivsky sands, which are mistakenly referred to as the largest desert in Europe.

The land can be used for several years and can yield agricultural products, i.e. it can be used appropriately. But after a while, the land exhausted by the climate change may degrade, natural or anthropogenic landscape simplification can occur, and useful properties and functions of land and other organic land components can deteriorate (the On Protection of Land Act of Ukraine), and in its turn it can lead to the impossibility of use of such land. What should be done in this case? Can the user or owner of such land rely on compensation of its losses associated with the inability of agricultural activities? Or would he face a bureaucratic system that would determine that the owner himself is guilty and the role of human factor was the key one. Because treatment of such risky land may be possible, subject to numerous regulations on the basis of specific land management projects (such as rehabilitation projects). And all actions aimed at compliance with many of the legislation provisions should be implemented at oneТs own expense.

On 17 June 1994 the UN Convention to Combat Desertification has been adopted for those countries experiencing serious drought and/or desertification, particularly in Africa (hereinafter Ч the Convention), that came into effect on 26 December 1996. The On UkraineТs Accession to the United Nations Convention to Combat Desertification in those Countries Experiencing serious Drought and/or Desertification, particularly in Africa Act of Ukraine of 4 July 2002 made Ukraine a signatory of the aforementioned convention.

Currently, there are 194 member states of the Convention. This Convention is one of the largest international environmental agreements in the field of environment along with the UN Convention on Biological Diversity and the mentioned UN Framework Convention on Climate Change. Together, they make up the so-called three Rio-Convention that were approved at the World Summit on Sustainable Development in 1992 in Rio de Janeiro, Brazil.

The main purpose of the Convention is to consolidate the global efforts to combat various types of land degradation under natural and anthropogenic factors. But compared with the Kyoto Protocol, which always is a news trigger in Ukraine because of its money intensity, the Convention is not so well known in Ukraine even though its priority is just as high.

So back to our example. Under the influence of natural factors land may lose its agricultural value. What of the ownerТs manual? In accordance with Articles 91 and 96 of the Land Code of Ukraine landowners and land users are obliged to use them inappropriately. Therefore, the use of land, which has lost its economic and ecological value from adverse natural phenomena, a change in the purpose of land that is performed according to the procedure changing the purpose of land owned by individuals or legal entities, approved by the Cabinet of Ministers of Ukraine of 11 April 2002, No.502. Otherwise citizens and legal entities shall be responsible in accordance with Article 211 of the Land Code of Ukraine and Article 53 of the On Administrative Offences Code of Ukraine.

But current Ukrainian legislation does not pay compensation to a landowner for land losses incurred in the event of land degradation. Moreover, the initiative and even the duty to change the purpose lies directly on entrepreneurs. In the country there are no clear criteria for determining the impact of specific factors on soil quality changes.

At present sectoral Ukrainian legislation on protection of land is aimed primarily at determining the role of the state as an administrator, originator and financier of land protection measures. At the same time, the Convention stipulates that the state is obliged to mobilize substantial financial resources, including grants and loans on favorable terms, in order to support the implementation of programs to combat desertification and mitigate the effects of drought; facilitate mobilization of adequate, timely and predictable financial resources, including new and additional financial resources of the Global Environment Facility, to meet the agreed incremental costs of activities related to desertification and meet the four central parts, in accordance with the relevant provisions of the document on the establishment of the Global Environment Facility; facilitate through international Cooperation transfer of technology, knowledge and know-how.

But these declarative rules are not clearly reflected in Ukraianin legislation, including land legislation. And it can lead to a poor and not so high investment in the image of the state.

It is apparent that the scope of legal regulations in the field of climate change tend to expand both internationally and nationally. And this expansion is a result of the new challenges facing humanity in the course of its existence, and often enough, it becomes the cause of these challenges.

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