Domestic and International Legislation
Among local experts, it is commonly agreed upon that RA’s environmental laws are vague, convoluted, contradictory, and often outdated. They are typically drafted by presidential staffers who have the licit and illicit interests of oligarchs in mind instead of officials of the Ministry of Nature Protection who are better trained and more removed from the economic elite. Add to these shortcomings the fact that presidential decrees and orders occasionally contradict environmental laws which they constitutionally must not do (but are executed nevertheless) and it becomes readily apparent that RA’s legislation is inadequate to protect the country’s environment (Zarafian, Ayvazyan and Anonymous Representative of International Organization 2013 interviews). The ineffectiveness of laws is especially prevalent in the mining sector.
According to an unpublished study by the Acopian Center for the Environment at the American University of Armenia, several gaps characterize environmental law in RA, especially in the country’s mining sector. First, to approve any mining licenses, an EIA is required. However, there are no guidelines as to who should undertake these assessments, which data should be included, and which methodology should be employed (Amirkhanian n.d.). Consequently, the mining companies subcontract these studies to one of their subsidiaries that will always provide favourable assessments. For instance, companies of the Vallex Groups commission the Lernametalurgiai Institute, a subsidiary of Vallex Groups, to write the EIAs for their mining operations including the one in Teghut. Lernametalurgiai Institute is currently the primary author of most EIAs in RA (Ishkanian 2013).
In general, current RA legislation is vague on methodologies that would fairly calculate natural resource and environmental protection fees. Internationally accepted methodologies are omitted. It is therefore unsurprising that RA has among the lowest fees for exploiting natural resources in the world. In RA’s new mining code, a natural resource fee has been completely eliminated and replaced with a royalty fees that is very modestly judged by international standards. Yet by imposing fees based only on the proceeds of actual sales, the use of efficient mining technology is discouraged. If the companies would be taxed according to the estimated amount of ore, they would be more inclined to mine more efficiently.
Furthermore, the environmental protection fees for the disposal of mining waste are extremely low. There is no fee for the removal of rocks during the first stage of mining. This waste is wrongly considered nonhazardous and the highly toxic tailings which are the product of the second stage are classified as low-hazardous waste (fourth class, the lowest class, according to RA regulations). The fee is accordingly set at less than three Euros per ton. It should, however, be considered first class hazardous waste for which the fee per ton is almost 100 Euros. Mining companies in RA therefore save millions of Euros each year (Sanasaryan 2008). Moreover, after concluding their operations, mining companies are no longer liable for the sites. Taking care of the rocks and tailings becomes the responsibility of the state of RA, which means that RA taxpayers have to shoulder the financial burden (Amirkhanian n.d.). These regulations provide little incentive for mining companies to conduct their businesses in efficient and environmentally protective ways. Instead, they encourage rapid and inefficient exploration with little consideration for the long-term environmental effects of mining operations. Finally, and this is a telling point, RA law does not include criminal penalties for acts that harm the environment at all.
RA’s environmental legislation thereby violates numerous international treaties and conventions that the country has signed since its independence. Article 6 of the RA Constitution and the Article of RA Law on International Agreements clearly state that international treaties trump national law. Environmental advocates routinely point to three international conventions which would, if properly enforced, significantly empower environmental advocacy in RA and thereby improve RA environmental legislation: the Aarhus Convention, the Convention on EIA in a Transboundary Context (Espoo Convention) and the SEA (Kyiv) Protocol (Amirkhanian and Ayvazyan 2013 interviews).
Most notably, the Aarhus Convention requires RA to assure that rights that the Convention grants the public are upheld. These rights include access to environmental information, public participation in environmental decision-making, and access to justice (Aarhus Convention 1998). Currently, RA legislation is not in compliance with the Aarhus Convention. RA’s Law on Environmental Impact Expertise (EIE) regulates the organization and implementation of public hearings through which the public can share their opinions on proposed economic activities but according to this law, this public input does not need to be considered in the final decision. Although Paragraph 8 of Article 6 of the Aarhus Convention expressly stipulates that public opinion must be considered in decision-making, the RA government is instead referring to its national legislation in direct violation of the Convention (Amirkhanian n.d.). In respect to access to justice, NGOs filed a lawsuit against the RA government in 2004 for violating the Aarhus Convention and the RA Constitution. The lawsuit was in response to passed legislation which did not seek public participation prior to the legislation being approved. However, the lawsuit was deemed inadmissible because the NGOs lacked jurisdiction to file. Only the president, the government, and the National Assembly could make appeals to the Constitutional Court of RA on the grounds of violations of the RA Constitution (Aarhus Convention Compliance Committee 2006). Additionally, existing legislation does not allow NGOs to go to court in protection of public law which is also in direct violation of the Aarhus Convention. The Mining Code also prevents access to geological data, for example, which is regarded as a commercial secret in violation of the Convention’s protection of access to information relevant to the environment (Amirkhanian n.d.). If the Aarhus Convention were fully enforced in RA, these laws would need to be changed, allowing for greater access to information, public participation in the decision-making process, and legal support to combat environmental crime. It is worth noting that international bodies such as the EU can help pressure RA to meet its international obligations.