CRITERIA FOR U.S. ASSISTANCE
UNDER SECTION 498A(a) OF THE FOREIGN ASSISTANCE ACT OF 1961
UKRAINE
Section 498A(a)(1): "make significant progress toward, and is committed to the comprehensive implementation of, a democratic system based on principles of the rule of law, individual freedoms, and representative government determined by free and fair elections."
Ukraine's "Orange Revolution" in November-December 2004 and the election of Viktor Yushchenko as President transformed the country's political dynamic and gave a powerful popular impulse to democratic reform efforts, which had progressed unevenly since Ukraine gained independence in 1991. The campaign and election were marked by intimidation of voters, impediments to media freedom, the use of administrative resources to favor the government candidate in the campaign, and falsification of the second round of the elections. However, actions by the country's Supreme Court, Parliament (Rada), political opposition, and most importantly the people themselves ensured that the will of the people, not those in power, determined the winner of the election. The 2004 election was the second peaceful, democratic, contested transfer of executive power in the country, following the 1994 election of Leonid Kuchma to the Presidency against incumbent Leonid Kravchuk. Since the Orange Revolution, Ukraine has made significant progress toward developing a democratic system based on rule of law, individual freedoms, and representational government. However, much work remains. Rada elections in March 2006 will serve as an important benchmark of democratic progress.
The Constitution mandates an independent judiciary, headed by a Constitutional Court that determines the constitutionality of laws and acts by all branches of government. In practice, however, the courts remain subject to considerable interference and are poorly funded. They thus remain a weak check on the power of the executive branch. The deliberations of the Supreme Court on the 2004 presidential elections, which were broadcast live nationwide, and the Court's eventual decision decreeing a revote and calling for the investigation of those who committed electoral fraud set a new standard for transparency and independence of the judiciary. Prior to the 2004 presidential election, the legislative branch, the Rada, had been a relatively more effective check than the judiciary, though its practical ability to influence former President Kuchma's authority had been limited. Constitutional reforms, approved in December 2004 as part of a package with the legislation on the presidential election, will however, strengthen the role of the Rada vis-�-vis the executive and transfer significant power to the Prime Minister.
Civil society is increasingly important in Ukrainian political life. Ukraine has an active NGO community, which played a significant role in the March 2002 and in the 2004 elections. For example, the domestic NGO Committee of Voters of Ukraine provided thousands of domestic monitors during the last three elections. The 2004 presidential elections were a turning point for many NGOs, in which a number of them formed a consortium and coordinated their work during the election campaign, which played a significant role in monitoring the media and election processes for abuse and manipulation. In December 2005, the Ukrainian Government hosted the inaugural session of the Community of Democratic Choice and dedicated the first half of the conference to the role of NGOs in expanding and securing democracy. Media freedom has improved dramatically under President Yushchenko.
Section 498A(a)(2): "make significant progress in, and is committed to the comprehensive implementation of, economic reform based on market principles, private ownership, and integration into the world economy, including implementation of the legal and policy frameworks necessary for such reform (including protection of intellectual property and respect for contracts)."
Ukraine continues to make progress towards creating an economy based on market principles, private ownership, and integration into the world economy. Upon taking office in January 2005, the government of Viktor Yushchenko announced an ambitious set of economic reform goals that included joining the World Trade Organization and gaining recognition by the United States, EU, and other Western trading partners as a market economy. The U.S. Department of Commerce is reviewing Ukraine's market economy status and expects to reach a conclusion in January 2006. European Union leaders announced on December 1, 2005 that Ukraine had met technical criteria to be recognized by the EU as a market economy. Although the goal of joining the WTO has not yet been realized, the government adopted many market reforms in 2005 toward that end. As of late 2005, however, Ukraine still needed to pass several pieces of WTO-compliant legislation and conclude bilateral market access agreements with the United States and several other countries.
Restrictions on foreign currency transactions have hampered the development of Ukraine's foreign exchange market in recent years, but the National Bank of Ukraine (NBU) has now taken steps to gradually move towards a more flexible exchange rate regime. The NBU has relaxed foreign exchange control measures and is pursuing policies to further develop Ukraine's foreign exchange markets and instruments. The IMF reports that there has been tangible progress in improving the supervisory and structural framework of the banking sector, including raising the quality of bank capital and better management of banks' foreign exchange risks, although much remains to be done. In March 2004, the IMF approved a precautionary stand-by arrangement for Ukraine but suspended it in the fall of 2004 due to fiscal policy slippages. The IMF has signaled its interest in resuming the stand-by arrangement, saying a Fund-supported program could help anchor and coordinate the authorities' reform agenda, and could provide some insurance, given Ukraine's exposure to external shocks.
The Government has made some progress in combating corruption and improving the investment climate. As an indication of this, Ukraine was upgraded in Transparency International's "Corruption Perceptions Index" from 122 out of 146 countries in 2004 to 107 out of 158 countries in 2005. Among investor-friendly reforms, a large number of superfluous regulations for businesses have been abolished, a "one-stop shop" for opening new business has been established, prosecutors have brought numerous corruption cases to court, and judges' salaries will be increased six-fold in January 2006. With partial success, the Government continues to try to reform the Value Added Tax (VAT) system and has nearly eliminated VAT refund arrears owed to foreign investors. However, serious problems persist in the investment climate, with continued corruption, arbitrary government actions, lack of respect for contracts, and lack of enforcement of property laws and court decisions. Although the constitution guarantees the legal equality of all forms of ownership and the inviolability of private property, the Rada has not passed legislation to implement these constitutional guarantees. Ukraine also still lacks a law for joint stock companies. In early 2003, President Kuchma signed into law a modern civil code but also signed a retrograde commercial code that conflicts with the Civil Code. The Ukrainian government announced its intention to abolish the commercial code in September 2005 but has not made obvious progress on the issue since then. Several long-standing disputes involving U.S. firms remain unresolved.
Prominent among governance issues when Yushchenko came to office were a series of pre-2005 privatizations in which major government assets had been sold to connected insiders at prices well below fair market value. The Yushchenko administration spent several months of its first year in office debating how and to what extent it should reopen these questionable sales to new bidding. Mixed signals from the government over the issue contributed significantly to lack of investor confidence, culminating in a cabinet reshuffle in mid-2005. However, the new cabinet moved quickly to conduct a successful re-privatization of the Kryvorizhstal steel works, which was auctioned off to a foreign investor for $4.8 billion, six times the price it had earned in 2004. Although President Yushchenko originally said that he plans no further re-privatizations, following the success of the Kryvorizhstal deal he has announced that the Nikopol ferroalloy plant will be re-privatized as well. In addition, the government has announced plans to privatize the state-owned telecommunications company Ukrtelekom in 2006 and other assets.
Ukrainian industry is highly inefficient in its use of energy and dependent on subsidized imported natural gas. In November 2005, the government introduced its "Energy 2030" plan, which forms the basis for a long-term energy strategy but is weak on implementation.
Ukraine has a bilateral trade agreement with the U.S. providing for reciprocal Normal Trade Relations and has been determined to be compliant with the freedom of emigration provisions of Title IV of the Trade Act of 1974 (the Jackson-Vanik Amendment), subject to a semi-annual reporting requirement on its continued compliance with these provisions. The U.S.-Ukraine bilateral investment treaty (BIT) entered into force in November 1996 and Ukraine has an OPIC agreement which was entered into force in 1992.
In 2001, because of poor performance in intellectual property protection, the United States designated Ukraine a "Priority Foreign Country" in its annual "Special 301" review and withdrew benefits under the Generalized System of Preferences (GSP). In addition, in January 2002, the U.S. Government imposed trade sanctions on Ukraine under Section 301 of the Trade Act of 1974 (as amended in 1988). These measures were taken due to Ukraine's failure to fulfill commitments to stem rampant copyright piracy which was causing substantial losses to U.S. industry. Though Ukraine remains a transshipment point for illegal optical media produced in Russia and elsewhere, since 2001 it has shut down almost all local production of pirated media. In July 2005, it adopted important amendments to a previously deficient optical media law. As a result of this progress, the U.S. government lifted the trade sanctions in August 2005 and initiated an out-of-cycle review to consider whether to change Ukraine's Special 301 designation and to restore GSP benefits.
Section 498A(a)(3): "respect internationally recognized human rights, including the rights of minorities and the rights to freedom of religion and emigration."
Ukraine's Constitution includes protections for internationally recognized human rights, and the Government of Ukraine (GOU) has made a commitment to uphold these rights. It has made progress toward the establishment of a democratic, pluralistic state since becoming independent. Although that progress has been uneven and problems remain, there have been improvements in the Government's human rights record. It is significant that, after a deeply flawed initial presidential campaign and electoral process, the December 2004 re-vote and the immediate campaign that preceded it were judged to be a substantial improvement by the international community. Since the November-December 2004 "Orange Revolution," there have been noteworthy improvements in the observation of internationally recognized human rights. Freedom of assembly has been respected, and the media operates more freely than it had under the previous regime. The judiciary appears to be more independent, and the government seems to operate with more transparency. Following the December 2004 Supreme Court decision ordering a re-vote, other courts have reached decisions that did not favor the Yushchenko government, in one case dismissing a libel suit that the President brought against a newspaper that he claimed had published false allegations about him. Government transparency was evidenced by increased interaction between government officials and the media and better access for the media to government meetings. The government also ordered that all court decisions be published to the internet, although this has not yet been realized. Problems with Ukraine's human rights record remain, however. Concentration of ownership and self-censorship hinder the media and corruption remains widespread.
The criminal justice system retains many elements of the old Soviet model. Arbitrary arrest and detention from what appeared to be political motivation were problems at times under the Kuchma government, as was lengthy pretrial detention in very poor conditions; however, the courts continued to release defendants from confinement pending trial. Prison conditions remain harsh and life-threatening, particularly because of prisoners' exposure to diseases such as tuberculosis. There were no confirmed reports of the arbitrary or unlawful deprivation of life committed by the Government or its agents during 2005. A progressive criminal code has been in force since September 2003 that mandates three to ten years of imprisonment for torture, and work has begun on rewriting the Soviet-era Criminal Procedure
Trafficking in persons (TIP) for sexual and labor exploitation was a serious problem, which the Government took steps to address. In 2005, the Ministry of Interior upgraded is anti-TIP efforts to a department-level office, the General Prosecutor's office added TIP to its list of priority crimes to prosecute, and senior government officials began to actively speak out against the stigmatization of TIP victims. In February 2004, the Rada voted to ratify the Palermo Convention and its two Protocols with no dissenting votes. In November, the Rada passed in its first reading amendments to bring its Criminal Code into harmony with the Palermo Convention, and there is every expectation that the amendments will be made into law by February 2006. A new law on public morals proscribing production and distribution of pornographic materials, with special protections for minors, has been in effect since 2003.
The Constitution and the 1991 Law on Freedom of Conscience and Religion provide for the separation of church and state and permit domestic religious organizations to establish places of worship and train clergy. Overall, Ukraine's record on religious freedom has generally been good. However, there were isolated problems at the local level, at times as a result of local officials taking sides in conflicts between religious organizations. Religious organizations are required to register with the Government. In addition, a 1993 amendment to the 1991 law restricts the activities of nonnative, foreign-based religions. In general, there has been a continuing progress on respect for religious freedom in Ukraine. Nevertheless, there continue to be reports from several regions that supporters of some "traditional" religions still cause difficulties in registration and delays in buying and leasing of property for "non-traditional" religions. The Muslim community continues to have difficulties registering a community in Kharkiv and has expressed frustration with the Ministry of Education, which has yet to register a single Islamic school. In addition, Muslims are often subject to what appear to be discriminatory document checks by local police.
With OSCE assistance, the Governments of Ukraine and Uzbekistan agreed in 1998 to simplify procedures for more than 65,000 Crimean Tatars to relinquish their Uzbek citizenship and to abolish the fee for doing so charged by Uzbekistan. Citizenship law facilitates the acquisition of citizenship by Crimean Tatars, who were deported victims of political oppression, by waiving some of the usual residence and language requirements. More than 260,000 Crimean Tatars have returned from exile to Crimea, mainly from Central Asia. According to the U.N. High Commission for Refugees (UNHCR), approximately 98 percent of the Tatar returnees have acquired citizenship, although Tatar representatives criticized aspects of the resettlement process. Ukrainians who wish to travel abroad can do so freely. Exit visas are not required. The Government can deny passports to individuals with access to state secrets, but denials are rare and can be appealed. Since 1997, Ukraine has been found to be in compliance with the emigration requirements of the Jackson-Vanik amendment.
Section 498A(a)(4): "respect international law and obligations and adhere to the Helsinki Final Act of the Conference on Security and Cooperation in Europe and the Charter of Paris, including the obligations to refrain from the threat or use of force and to settle disputes peacefully."
Ukraine adheres to commitments under the Helsinki Final Act and the Charter of Paris and respects international law. Ukraine has no territorial claims on other states. In 1997, it signed a treaty with Romania to assist in resolving border disputes. Remaining border issues persist with Romania and have been the subject of talks between the Governments but have not been the source of serious tension. Ukraine also reached a border agreement with Belarus in 1997, which was signed by both presidents and later ratified by the Ukrainian Rada. While not yet ratified by the Belarusian Parliament, the agreement is being observed by both sides. In addition, Ukraine sought the advice and counsel of the OSCE in resolving peacefully outstanding political differences regarding the Crimea. The OSCE mission in Ukraine, its mandate on Crimean issues largely fulfilled, was replaced in May 1999 with an OSCE project office. The project office administers a number of activities in such areas as legal reform, media freedom, military reform, assistance to the human rights Ombudsman, anti-trafficking in persons, and other areas. OSCE observers monitored the two rounds of the presidential election in October and November 1999, the March 2002 Parliamentary elections and all three votes in the 2004 presidential elections. In November 1999, Ukraine joined the other OSCE states in signing the Charter for European Security, which reaffirms full adherence to all existing OSCE documents.
Section 498A(a)(5): "cooperate in seeking peaceful resolution of ethnic and regional conflicts."
Ukraine has played a constructive role in the search for a peaceful resolution of separatist disputes in its region. In Moldova, Ukraine works with the OSCE as a mediator in the five-sided talks to resolve the conflict in the disputed region of Transnistria. After a breakdown of the five-sided talks in summer 2004 after Transnistrian authorities forcibly closed down Latin-script schools, Ukraine has been active in re-starting the talks. In April 2005, President Yushchenko unveiled an initiative for the resolution of the Transnistrian conflict that respects the sovereignty and territorial integrity of Moldova. In September 2005, Ukraine hosted a meeting in Odessa as a precursor to the resumption of five-sided talks - a meeting where the parties and mediators agreed to accord observer status to the U.S. and EU. At the resumption of the "5+2 talks" in October 2005, the parties agreed to move forward with democratization efforts in Transnistria with an explicit reference to President Yushchenko's plan. Ukraine has also cooperated fully with the deployment in late 2005 of an EU Border Assistance Mission on its border with Moldova, a measure intended to advance the conflict settlement process. However, Ukraine has not been willing to enforce its 2003 customs protocol with Moldova; the two countries issued a declaration in January 2006 that would impose a customs fee on Transnistrian exports through Ukraine, but Ukrainian enforcement will be the key to its success.
In May 1997, Ukraine and Poland signed a Declaration of Historical Reconciliation to improve Polish-Ukrainian ties. In 2003, Polish and Ukrainian leaders jointly marked the sixtieth anniversary of the inter-ethnic conflicts in the Volyn region.
In 1997, the Governments of the Russian Federation and Ukraine signed several agreements towards resolving issues concerning Sevastopol and the former Soviet Black Sea Fleet and also signed a Treaty of Friendship and Cooperation, both of which have been ratified by the respective parliaments. In 2003 Ukraine actively engaged Russia in an attempt to defuse a dispute over Tuzla Island, the Kerch Strait, and the Sea of Azov. On December 24, 2003, the Ukrainian and Russian presidents signed an agreement to regulate maritime borders in the Azov from seabed to surface. Questions related to the Kerch Strait were referred to expert commissions for further discussion, however, and a final delineation has yet to be agreed.
Ukraine is contributing peacekeepers to missions in Iraq, the Balkans, the Middle East, and Africa. Since November 1999, Ukrainian peacekeepers, with the support of the U.S. and other Allies, have been deployed in Kosovo as part of the UKRPOLBAT Ukrainian-Polish battalion, attached to the U.S. sector commander. Ukraine's contingent had at its height been the fifth-largest contingent of coalition soldiers in Iraq. These troops will be withdrawn at the end of 2005 in fulfillment of President Yushchenko's campaign pledge. Ukraine remains committed to Iraq and has pledged to assist with reconstruction efforts. In December Yushchenko authorized 50 peacekeepers to participate in training efforts in Iraq.
Within its own borders, Ukraine fostered peaceful resolution of political differences in Crimea by inviting and encouraging the active participation of the OSCE in evaluating the situation and making recommendations. The constitution grants a degree of autonomy to Crimea. Ukraine also has made clear efforts to guarantee rights of persons belonging to minorities and has been free of widespread ethnic conflict. Ukraine has offered to host an OSCE institution devoted to inter-ethnic relations.
Section 498A(a)(6): "implement responsible security policies, including--
(A) adhering to arms control obligations derived from agreements signed by the former Soviet Union;
(B) reducing military forces and expenditures to a level consistent with legitimate defense requirements;
(C) not proliferating nuclear, biological, or chemical weapons, their delivery systems, or related technologies; and
(D) restraining conventional weapons transfers."
For a number of years, the United States has engaged Ukraine in a dialogue on nonproliferation and arms control. Our efforts are designed to support an end to Ukrainian entities' cooperation with programs of concern and improve cooperation to combat the gray arms trade by pursuing an effective and lasting implementation of Ukrainian export control laws and regulations. In 2002, U.S.-Ukrainian bilateral relations were strained by confirmation that President Kuchma had authorized the sale and transfer of a Kolchuga early-warning radar system to Iraq. Subsequently, we intensified our non-proliferation dialogue with Kiev.
In June 2003, the U.S. sent a joint experts team with the United Kingdom and Poland to Kiev to review overall arms export processes and to offer recommendations for tightening controls. With the continued participation of the United Kingdom and Poland, the U.S. pursued this discussion with Ukraine in subsequent meetings during the year. Drawing on our previous successes with the NATO invitees, we will continue to cooperate with Ukraine to improve Ukrainian enforcement and enactment of structural reforms, but significant policy and technical changes are necessary to achieve effective oversight of defense industries, arms exports and the related services.
Overall, Ukraine's commitment to reduction of nuclear weapons has been exemplary; Ukraine was the first state to give up its entire nuclear arsenal voluntarily. In 1992, President Kravchuk made a written commitment to the United States that Ukraine would have a "non-nuclear status." In 1994 Ukraine signed the Trilateral Statement with the United States and the Russian Federation, which among other things committed Ukraine to transfer all nuclear weapons on its territory to Russia for elimination. By mid-1996, all of the nuclear weapons on Ukrainian territory had been transferred to Russia. Also in 1994 Ukraine acceded to the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) as a non-nuclear-weapon state. Ukraine's safeguards agreement with the International Atomic Energy Agency entered into force on January 22, 1998. Ukraine also signed the Additional Protocol to the safeguards agreement in 2000. Ukraine is a party to both the START and Intermediate and Shorter Range Nuclear Forces (INF) Treaties and participates in the Joint Compliance and Inspection Commission and Special Verification Commission to implement those Treaties. To our knowledge, the Government of Ukraine is not engaged in the proliferation of nuclear, biological, or chemical weapons, or related technology.
The Ukrainian Rada approved the Conventional Armed Forces in Europe (CFE) Treaty in July 1992. Ukraine ratified the 1996 CFE flank agreement in 1997 and participated actively in negotiations to adapt the CFE Treaty which was signed by Ukraine and representatives of all 30 CFE States at the Istanbul Summit in 1999. Ukraine has substantially complied with the CFE Treaty, and Ukrainian Government officials have reaffirmed their commitment to full implementation. We continue to engage Ukraine on a number of implementation and technical CFE concerns bilaterally and in the context of the CFE Joint Consultative Group (JCG), the Treaty's implementation body. Ukraine actively participates in the JCG. Ukraine has provided data on equipment as required by the Treaty and has also hosted on-site inspections as provided for in the Treaty.
Ukraine is also one of 55 participating states to the OSCE's Vienna Document on confidence and security building measures. Ukraine has submitted annual Confidence- and Security-Building Measures (CSBM) data declarations regularly since 1995 and has willingly accepted CSBM inspections and evaluation visits in accordance with the OSCE Vienna Document.
Ukraine is also a party to the Treaty on Open Skies, which establishes a regime of unarmed aerial observation flights over the territories of State Parties. Ukraine actively participates in the Open Skies Consultative Commission which is the Treaty's implementation body. Prior to the Treaty's entry into force on January 1, 2002, Ukraine cooperated with 26 other signatories in trial flights and other preparations for entry into force. Ukraine hosted one U.S.-Canadian over-flight of its territory, and in 2003 successfully participated in supporting two U.S. over-flights of Russia through leasing an AN-30 observation aircraft.
Ukraine has cooperated with efforts to limit proliferation of weapons and technologies of mass destruction. An original signatory to the 1993 Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and their Destruction (CWC), Ukraine ratified the agreement in October 1998. Ukraine is a party to the 1972 Convention on the Prohibition of the Development, Production, and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction. Ukraine has actively supported U.S. and international efforts to promote nonproliferation in South Asia, including by chairing the multilateral South Asia Task Force during 1999. Ukraine is a member of the Nuclear Suppliers Group (NSG) and, as such, has adopted current international export standards including the NSG commitment to require full-scope safeguards as a condition of nuclear supply. Ukraine has cooperated constructively on individual cases of concern raised by the United States and has stated that it will not provide assistance to unsafeguarded nuclear programs. In March 1998, Ukraine took the positive, politically difficult step to terminate the participation of a Ukrainian firm in a project to provide key components for an Iranian nuclear power plant. Ukraine adhered to the Missile Technology Control Regime (MTCR) Guidelines in 1994, joined the MTCR in 1998, and became an original Subscribing State on November 25, 2002 to the Hague Code of Conduct Against Ballistic Missile Proliferation. Ukraine also belongs to the Wassenaar Arrangement and in 2005 joined the Australia Group, thus becoming the first post-Soviet country to belong to all major multilateral arms control regimes.
On August 29, Ukraine and the United States signed a Biological Threat Reduction Implementing Agreement, an important component of the Nunn-Lugar Cooperative Threat Reduction Program. Under the agreement, the U.S. Department of Defense will work with the Ukraine Ministry of Health to strengthen Ukraine's ability to monitor, detect and diagnose disease outbreaks caused by dangerous pathogens. In addition, the two governments will engage in cooperative biological research and enhance biosafety and biosecurity at Ukrainian laboratory facilities.
On May 26, 2005, the U.S. Department of Energy and the Ministry of Ukraine for Emergencies and Affairs of Population Protection for the Consequences of the Chernobyl Catastophe signed an implementing agreement to enhance physical security of Ukraine's Radon facilities that store radioactive material and radiological sources. In addition, Department of Energy continues introducing physical security upgrades at oncology clinics, research institutes, private facilities, and state enterprises for the secure storage of radiological sources.
Also, in April, 2005, the U.S. Department of Energy and the Ukraine Administration of the State Border Guard Service signed an implementing agreement to install portal radiation monitoring equipment to prevent illicit trafficking of nuclear and radioactive material.
Since its inception in 1993, Ukraine has been a member of the Kiev-based Science and Technology Center in Ukraine (STCU), an intergovernmental organization focused on preventing the proliferation of WMD expertise by redirecting former weapons of mass destruction scientists to peaceful activities. Efforts to engage former biological and chemical weapons scientists in Ukraine have expanded under the aegis of the State Department's Bio-Chem Redirect Program, working with the STCU and emphasizing long-term sustainability for peaceful scientific endeavors.
While Ukraine has the potential to be a major arms supplier, it is a member of the Wassenaar Arrangement and supports its goals and objectives. Additional information relevant to conventional arms transfers has previously been provided to Congress on a classified basis. We occasionally receive reports of missile-related cooperation between Ukrainian entities and countries of proliferation concern and have sought cooperation from the Government of Ukraine to prevent such transactions. The Ukrainian authorities have been able to take action in some cases, and the U.S. has imposed sanctions against the offending entity in others. We continue to assist and encourage the Ukrainian Government's efforts to curtail such activities by Ukrainian entities.
On May 18, 2005, Ukraine ratified the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Antipersonnel Mines and on their Destruction (Ottawa Convention). It is also a state party to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects (CCW) and all its Protocols.
Section 498A(a)(7): "take constructive actions to protect the international environment, prevent significant transborder pollution, and promote sustainable use of natural resources."
Significant environmental problems remain in Ukraine, particularly from the after-effects of Chornobyl and widespread industrial pollution. The Government of Ukraine's capacity to manage regulatory programs is insufficient to the task, as many environmental functions have been decentralized. Nevertheless, environmental consciousness is growing, led by an active green movement.
In 1995, Ukraine signed a Memorandum of Understanding (MOU) with the G-7 on a comprehensive program to close the Chornobyl nuclear power plant by the year 2000. The United States worked closely with Ukraine and our G-7 partners to implement the MOU. The program also sought to help Ukraine undertake energy sector reforms and power sector investments needed to ensure that Ukraine's power needs would continue to be met after the closure of Chornobyl. On December 15, 2000, the final Chornobyl reactor was shut down. In 2004, Ukraine commissioned two new nuclear reactors, Khmelnytskyy 2 and Rivne 4. The EBRD provided a loan of $125 million to finance safety upgrades for the new reactors.
The Government of Ukraine has taken steps to address environmental issues, mainly through the Ministry of Environmental Protection. Ukraine has met its commitments under the UN Framework Convention on Climate Change and is developing investment projects for the mitigation of greenhouse gas emissions. However, due to lack of capacity within the Ministry of Environmental Protection and changes in government, full implementation of a pollution fee system taxing air and water emissions and solid waste disposal has lagged.
Although Ukraine set up a Regional Environmental Center (REC) in Kiev, irregularities in the management of the REC have led the U.S. to consider withdrawing from the REC Agreement.
National environmental NGOs are slowly gaining access to the policy-making process on environmental issues. Ukrainian NGOs took the lead in bringing a major environmental issue to international attention when the GOU proposed to build a canal through the most sensitive part of the Danube Delta International Biosphere Reserve. Despite international urging, Ukraine failed to abide by its commitments on assessing the impact and consulting other parties before beginning construction of the canal. Currently the work on the canal has been halted, but no final decision on its construction has been made.
U.S. EPA has a successful capacity-building program in place that is assisting national and regional level environmental managers by providing them with risk assessment and financial management skills. This hands-on program is yielding results. Regional representatives of the Ministries of Health and Environment are working together to build risk assessment models and corresponding risk management plans. Industry stakeholders, oblast officials and communities are also getting involved.
Section 498A(a)(8): "deny support for acts of international terrorism."
Since September 11, 2001, Ukraine has supported the global campaign against terrorism. It has given assistance in several areas, including sending a contingent of troops to Kuwait for Operation Iraqi Freedom and to Iraq as part of coalition stabilization forces; intelligence sharing; allowing over 10,000 over flights of Allied aircraft participating in operations in Afghanistan and the region; and enhancing the Afghan National Army by transferring small arms and equipment to the fledgling force. The Government of Ukraine does not grant sanctuary from prosecution to individuals or groups that have committed acts of international terrorism or otherwise support international terrorism. Ukraine has signed the International Convention for the Suppression of Acts of Nuclear Terrorism, which was adopted by the UN General Assembly April 2005; and opened for signature in September 2005, and is a party to the remaining twelve international counterterrorism conventions.
Section 498A(a)(9): "accept responsibility for paying an equitable portion of the indebtedness to United States firms incurred by the former Soviet Union."
In October 1991, shortly before the Soviet Union dissolved, Russia and nine other Soviet republics, including Ukraine, signed a Memorandum of Understanding declaring themselves jointly and severally liable for the foreign debts of the former Soviet Union (FSU). In December 1991, Russia and seven other former republics, including Ukraine, signed an agreement that assigned to each of the Newly Independent States a share of all the external assets and foreign debt of the former FSU. The December 1991 Agreement provided that Ukrain's share of the debt of the former Soviet Union would be 16 percent.
Beginning in 1992, Russia sought to replace the joint and several liability principles by seeking full liability for the debt of the FSU in return for all the external assets of the FSU. In December 1994, Ukraine signed a "double-zero option" agreement with Russia under which Russia agreed to assume Ukraine's share of the foreign debt of the FSU in return for Ukraine's share of the FSU's external assets.
Please see section 498(a)(9) of the Russia assessment regarding indebtedness to the United States incurred by the former Soviet Union.
Section 498A(a)(10): "cooperate with the United States Government in uncovering all evidence regarding Americans listed as prisoners-of-war, or otherwise missing during American operations, who were detained in the former Soviet Union during the Cold War."
The U.S. effort to uncover evidence of American POWs and MIAs in the former Soviet Union is being conducted through the U.S.-Russian Joint Commission on POWs/MIAs, established in March 1992. The U.S. side of the Commission visited Ukraine in December 1992 and August 1993. They made two additional visits in 2003. Ukraine continues to cooperate in the search for evidence on American POWs/MIAs.
Section 498A(a)(11): "terminate support for the communist regime in Cuba, including removal of troops, closing of military and intelligence facilities, including the military and intelligence facilities at Lourdes and Cienfuegos, and ceasing trade subsidies and economic, nuclear, and other assistance."
We have no evidence from which to conclude that the Government of Ukraine is providing military intelligence, economic, nuclear, or other assistance to the Government of Cuba.
CHECKLIST FOR GROUNDS OF INELIGIBILITY
UNDER SECTION 498A(b) OF THE FOREIGN ASSISTANCE ACT OF 1961
UKRAINE
No. The President has not made such a determination at this time. Ukraine made significant progress in the last year. Although problems persist, we remain committed to addressing these problems through diplomatic efforts and assistance programs.
Section 498A(b)(2): Has the President determined that the Government of Ukraine "has failed to take constructive actions to facilitate the effective implementation of applicable arms control obligations derived from agreements signed by the former Soviet Union"?
No. The President has not made such a determination at this time. Ukraine has taken numerous actions to facilitate the implementation of arms control agreements signed by the Soviet Union.
Section 498A(b)(3): Has the President determined that, after October 24, 1992, the Government of Ukraine "knowingly transferred to another country --
(A) missiles or missile technology inconsistent with the guidelines and parameters of the Missile Technology Control Regime; or
(B) any material, equipment, or technology that would contribute significantly to the ability of such country to manufacture any weapon of mass destruction (including nuclear, chemical, and biological weapons) if the President determine[d] that the material, equipment, or technology was to be used by such country in the manufacture of such weapon"?
No. The President has made no such determination at this time.
Section 498A(b)(4): Is the Government of Ukraine "prohibited from receiving such assistance by section 101 or 102 of Arms Export Control Act or sections 306(a)(1) and 307 of the Chemical and Biological Weapons Control and Warfare Elimination Act of 1991"?
No.
Section 498A(b)(5): Has the President determined and certified to the appropriate congressional committees that the Government of Ukraine "is providing assistance for, or engaging in non-market-based trade (as defined in section 498B(k)(3)) with the Cuban Government? If so, has the President taken action to withhold assistance from Ukraine under the Foreign Assistance Act within 30 days of such a determination, or has Congress enacted legislation disapproving the determination within that 30-day period?"
No. The President has not determined that the Government of the Ukraine is providing assistance for, or engaging in any non-market-based trade with, the Cuban Government.
