Clarification of the Legal Regime of the Boundaries of the Territory Contaminated with Explosive Ordnance

Legal and Regulatory Framework

Mine action in Ukraine, as well as the procedure for granting the status of areas contaminated by explosive ordnance (hereinafter referred to as "CEO"), is currently regulated by the following legal acts:

• The Civil Protection Code of Ukraine;

• The Land Code of Ukraine;

• The Law of Ukraine “On Mine Action in Ukraine”;

• Resolution of the Cabinet of Ministers of Ukraine No. 11 of January 9, 2014 “On Approval of the Regulation on the Unified State System of Civil Protection”;

• Resolution of the Cabinet of Ministers of Ukraine of December 11, 1999, No. 2294 “On the Regulation of Work on Detection, Disposal and Destruction of Explosive Ordnance”;

• Resolution of the Cabinet of Ministers of Ukraine of November 3, 2021 No. 1150 “On Approval of the Procedure for Keeping Records of Mine Action Operators”;

• Resolution of the Cabinet of Ministers of Ukraine of November 10, 2021, No. 1207 “On the Establishment of the National Mine Action Authority”;

• Resolution of the Cabinet of Ministers of Ukraine No. 812 of June 07, 2006 “On Approval of the Procedure for the Disposal of Missiles, Ammunition and Explosives”;

• Resolution of the Cabinet of Ministers of Ukraine No. 444 dated June 26, 2013 “On Approval of the Procedure for Training the Population to Act in Emergency Situations”;

• Resolution of the Cabinet of Ministers of Ukraine No. 372 of April 17, 2019 “On Approval of the Rules for Marking Dangers Associated with Mines and Explosive Ordnance - Consequences of War”;

• Resolution of the Cabinet of Ministers of Ukraine of February 2, 2024, No. 123 “On the Implementation of a Pilot Project on Certification of Mine Action Operators and Mine Action Processes”;

• Resolution of the Cabinet of Ministers of Ukraine of March 8, 2024, No. 271 “On the Implementation of a Pilot Project on the Mandatory Certification of Mechanized Demining (Humanitarian Demining), Related Products, Components and Equipment”;

• Instruction on the organization and conduct of demining operations on the territory of Ukraine by units and specialized enterprises of the Ministry of Emergencies (approved by Order of the Ministry of Emergencies of Ukraine No. 791 of September 20, 2010);

• Resolution of the Cabinet of Ministers of Ukraine of June 7, 2024 No. 740 “Some Issues on the Creation, Operation and Maintenance of the Register of Territories Contaminated/Probably Contaminated by Explosive Ordnance”;

• Order of the Ministry of Defense of Ukraine, the Ministry of Internal Affairs of Ukraine and the Ministry of Reintegration of the Temporarily Occupied Territories of Ukraine of 09.01.2023 No. 9/3/5 “On Approval of the Procedure for Coordinating the Activities of the Mine Action Center, Humanitarian Demining Center and Social and Humanitarian Response Center by the Secretariat of the National Mine Action Authority”;

• Order of the Ministry of Defense of Ukraine and the Ministry of Internal Affairs of Ukraine No. 833/443 dated 21.12.2022 “On Approval of the Procedure for Implementation of Priority Measures for the Disposal (Destruction) of Explosive Ordnance on the Territory of Ukraine and Organization of Cooperation in the Course of Their Implementation”.

In addition, the identification, survey, and determination of areas contaminated by explosive ordnance are defined in detail at the level of the SES of Ukraine's bylaws - standard operating procedures (SOPs), which are step-by-step algorithms for civil protection units approved by separate instructions of the Head of the SES of Ukraine, namely

1. SOP 05.10/DSNS “Information Management on Mine Action Measures Implementation by Civil Protection Authorities and Units”. The standard defines the documentation and accounting of information on the receipt and implementation of mine action measures by civil protection authorities and units).

2. SOP 08.10/DSNS “Procedure for Conducting Non-Technical Survey of Territories Probably Contaminated by Explosive Ordnance by Civil Defense Authorities and Units”. The standard defines the organization of non-technical surveys of territories suspected of being contaminated by CEO, describes direct and indirect evidence of CEO contamination, classifies such territories according to their status, the results of non-technical surveys, the procedure for conducting such surveys, and the preparation of a schematic plan and a schematic map of the hazardous area.

3. SOP 08.20/DSNS “Procedure for Conducting Technical Surveys of Territories Probably (Confirmed) Contaminated by Explosive Ordnance by Civil Defense Authorities and Units”. The standard defines specific requirements for civil protection employees to conduct technical surveys of areas contaminated with CEO, safety measures, documentation of results, re-survey, quality control, etc.

4. SOP 08.40/DSNS “Procedure for marking areas contaminated by explosive ordnance by civil protection authorities and units”. The standard defines clear requirements for marking the territory, characteristics of the markings, and their transfer for maintenance and service.
   
   

Procedure for Granting the Status of Areas Contaminated by Explosive Ordnance in Accordance with the Civil Protection Code of Ukraine

According to Article 6 of the Civil Protection Code of Ukraine, the activities of central and local executive authorities, enterprises, institutions, and organizations related to technogenic and environmental safety, protection of the population and territories, prevention and response to emergencies are coordinated by commissions on technogenic and environmental safety and emergencies. These commissions may be established by an order of the regional/district administration or by a decision of the executive committee of a local self-government body.

The commission on technogenic and ecological safety and emergencies, according to the powers granted, has the authority to establish the boundaries of the zone where the emergency occurred. Decisions of the commission on technogenic and industrial safety and emergency situations are formalized in a protocol. Therefore, the commission on technogenic and ecological safety and emergency situations may be entrusted with decision-making on establishing zones of contaminated (mined) territories. The decisions of the commission, adopted within its powers, are binding on state authorities and local governments, enterprises, institutions, and organizations located in the territory of the relevant administrative-territorial unit.

The boundaries of territories contaminated with explosive ordnance can be determined based on maps and plans drawn up by civil defense units during non-technical surveys of contaminated areas. Additionally, according to Article 22 of the Law of Ukraine "On Mine Action," local state administrations are responsible for informing the public about the systems for marking hazardous areas established in the respective territories and the measures to be taken to avoid danger to life and health. They are also responsible for monitoring the status of the established systems for marking hazardous areas and their maintenance.

According to the decision of emergency response commissions and local administrations, in accordance with the "Rules for Marking Hazards Associated with Mines and Explosive Objects - Consequences of War" approved by the Cabinet of Ministers of Ukraine on April 17, 2019, No. 372, mine action operators or authorized units of central executive authorities take precautions to prevent civilians from entering contaminated areas. These precautions include warning, informing the civilian population about the contaminated area marking systems, marking contaminated areas on the ground, fencing of contaminated areas, and monitoring of contaminated areas.

Demining Activities Procedure

The National Mine Action Authority, established by the Cabinet of Ministers of Ukraine, is responsible for coordinating mine action measures. This interagency auxiliary body operates on a collegial basis and is chaired by the Minister of Defense. Its main task is to formulate state policy and coordinate all mine action activities in Ukraine, including the coordination of the Mine Action Center (MAC), the Humanitarian Demining Center (HDC), and the Social and Humanitarian Response Center (SHRC).

Demining activities on the contaminated territory involve relevant demining specialists who have been certified as mine action operators (MAPs). The quality control of demining is ensured through tender procedures. The Ministry of Defense of Ukraine is responsible for coordinating, managing, and interacting between the authorities, international partners, and mine action operators in the implementation of measures to clear the territories of Ukraine from explosive hazards. Various units, totaling about 500 people, including the Armed Forces of Ukraine, the State Special Transport Service, the State Emergency Service of Ukraine, the National Police of Ukraine, the National Guard of Ukraine, and the State Border Guard Service, are involved in demining in Ukraine. International non-governmental demining organizations such as The Halo Trust, the Danish Refugee Council (DRC), the Swiss Foundation for Mine Action (FSD), and national non-governmental operators Demining Solutions, GK Group, Ukroboronservice, a subsidiary of the State Company Ukrspecexport, and the Ukrainian Deminers Association also contribute to mine action. As of October 2024, there are 59 certified MAC operators.

After demining, the Mine Action Center and Humanitarian Demining Center assume full responsibility for the absence of risks associated with explosive ordnance on the relevant territory by issuing a certificate, in accordance with Article 11 of the Law of Ukraine "On Mine Action". It is prohibited to carry out work in the contaminated area before obtaining the certificate. The law imposes on all citizens of Ukraine the obligation to comply with the rules of behavior, safety, and actions in emergency situations and to implement safety measures in everyday life and daily work. Citizens are also obligated to notify emergency services of the occurrence of an emergency, including the detection of explosive objects.

Register of Territories Contaminated/Possibly Contaminated by Explosive Ordnance

The Register of Areas Contaminated/Probably Contaminated by Explosive Ordnance is to be established in accordance with the Resolution of the Cabinet of Ministers of Ukraine No. 740 of June 7, 2024. This Register is an integral part of the SESU's Civil Protection Forces and Means Management System, which is a functional subsystem of the unified information system of the Ministry of Internal Affairs. The Register shall include territories of all forms of ownership that have been negatively affected by hostilities and contaminated with explosive ordnance. The technical administrator of the register is the Center for Humanitarian Demining. As of September 25, 2024, the Register was under development, and information on its launch should be published on the official website of the SES.

Activities in the territories listed in the Register should resume after they are demined/surveyed. The territory should be included in the register based on the results of non-technical survey of the territory or other humanitarian demining and operational response measures, entered into the register by the Mine Action Center, and indicating contamination/possible contamination of the territory by explosive ordnance. Information can be entered into the register by authorized officials of the Mine Action Center, responsible persons of authorized units of central executive authorities that carry out humanitarian demining, and authorized officials of village, settlement, city councils, or military or civil-military administrations. Contaminated/possibly contaminated areas can be excluded from the register based on information from the Mine Action Center on the results of humanitarian demining activities, with further notification sent to the applicant through email.

The register should include the entire territory affected by hostilities, based on data received from military administrations, the Ministry of Defense, the SES, the State Emergency Service, the National Guard, and the National Police. The territory affected by hostilities is excluded from the register based on the results of an initial non-technical survey conducted with the use of data from military administrations and local governments, satellite data, orthophotography, or scanning, in the absence of direct or indirect evidence of contamination by explosive hazards, after receiving information from the Mine Action Center on the completion of such a survey. 

The territory affected by hostilities, located closer than 20 kilometers from the state border of the aggressor state and/or the state that facilitates the armed aggression of the Russian Federation against Ukraine or the line of combat contact, is considered impossible to survey.

Information on the state of the territories contaminated/possibly contaminated with explosive objects or mined should be provided upon request of individuals and legal entities on the territories owned or used by such individuals and legal entities.

Identification of Territories Classified as Potentially Contaminated by Explosive Ordnance Prior to the Establishment of the Register

Prior to the publication of the Register of Areas Contaminated/Potentially Contaminated by Explosive Ordnance, it is recommended to use precautionary measures and consider available public mapping resources that depict areas contaminated/potentially contaminated by explosive ordnance. These resources include:

- Interactive map of areas potentially contaminated by explosive ordnance (https://mine.dsns.gov.ua/). This map shows the places where explosive devices have already been found or are likely to be found, and the degree of threat from them according to the information available to the SES.

- Interactive map of humanitarian demining activities (https://ua.imsma.org/portal/apps/webappviewer/index.html?id=814d2770d197474d8ad7e8014c0a275e&locale=uk). This map shows documented areas that contain evidence of contamination. The information is updated based on reports submitted by mine action operators.

To exclude areas indicated as contaminated in these resources, it is proposed to provide necessary information collected according to established procedures on the absence of contamination to the administrators of these systems in order to remove them from the mapping images. 

It is important to keep the precautionary approach to enterprise management and avoid exposing employees to potential danger from contact with explosive or harmful objects if there is official information about their potential presence in the specified area.

Employer's Liability for Carrying Out Economic Activities in Areas Contaminated with ERW

The employer is responsible for ensuring safe and harmless working conditions, as stated in Article 153 of the Labor Code of Ukraine. It is the employer's duty to take measures to ensure the safety and protection of the physical and mental health of employees, as provided for in Article 158 of the Labor Code of Ukraine.

Prohibitions and requirements for restricting employees' access to areas contaminated with explosive objects should be included in the occupational safety and health management system at enterprises. These requirements are based on Article 13 of the Law of Ukraine "On Occupational Safety and Health" and apply to enterprises whose activities involve potential visits to such areas.

According to Article 6(2) of the Law of Ukraine "On Occupational Safety and Health," an employee has the right to refuse to perform assigned work if an industrial situation arises that is dangerous to their life or health, as well as to the people around them, the production environment, or the environment. The employee must notify their immediate supervisor or employer immediately in such situations.

Managers and persons responsible for labor protection can be held criminally liable for carrying out work in areas contaminated with explosive hazards if it leads to bodily injury or death. This liability is covered under Article 271 (Violation of the Requirements of Labor Protection Legislation) and Article 367 (Official Negligence) of the Criminal Code of Ukraine. The maximum penalties associated with these offenses are up to 7 years and up to 8 years in prison, respectively.

Authors: 

Dmytro Karabchuk, Oleh Storchous, Natalia Kaplia, Tetiana Pyvovar, Ihor Skolsky

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This clarification of the legal regime of the boundaries of the territory contaminated by explosive ordnance was prepared within the framework of the project "Combating Illegal Logging in Ukraine" of the International Programs Office of the US Forest Service. The information is based on an analysis of the regulatory framework and the responses received from the Ministry of Defense and the SES. The assessment of the territories was conducted using the example of the NR "Roztochia". The results, interpretation, and conclusions of this publication do not necessarily reflect the views of all members of the NGO "ForestCom", its partners, or its donors.

If you have any comments, please send them to: info@forestcom.org.ua