Presentation Transcript

1. OFFICE FOR ENVIRONMENTAL REGULATION AND NUCLEAR SAFETY (ORASEN) Ministry of Science, Technology and Environment Cuban experience in the implementation and enforcement of MEAs MSc. Michel Fernández Pérez Legal Adviser ORASEN
2. Cuban Legal System Civil or Continental Law Based on Roman, French and German Law A big Spanish Law heritage Influence by the “socialist law” basically the constitutional and administrative law.
3. Cuban hierarchypyramid
4. National Process to become party of a treaty Cuban Constitution Article 90, item m): The Counsel of State has the power to ratify and to withdraw international treaties. Cuban Constitution Article 98, item ch): The Counsel of Minister (Cuban Government) has the power to approve international treaties and send for its ratification to the Counsel of State. Decree-Law No. 191, 1999 “International Treaties” establish the legal procedure for the approval, ratification, withdraw and official publication of treaties. Create the Treaty Coordinating Commission.
5. Decree-Law No. 191, 1999 “International Treaties”Track MEAs After the deposit of the instruments of ratification proceed the publication in the Official Gazette The interested Ministry presents the proposal to the Legal Division of the Ministry of Foreign Affairs The Counsel of State order the Ministry of Foreign Affairs to make the international procedures establish in the treaty. Treaty Coordinating Commission (head by the Legal Division) Compose by all the relevant Ministries. The Counsel of Minister sends the proposal to ratify the treaty to The Counsel of State The Commission sends the proposal to ratify or not the treaty to the Counsel of Minister Discussion in The Commission
6. Gaps Decree-Law No. 191, 1999 “International Treaties”Track Does not establish the hierarchy of the treaties in the internal legal system. Does not clarify if Cuba is a dual or monist system Does not mandate the publication of the full text of the treaty. The President of the Counsel of State has the faculty to decides the publication of the entirely treaty. So far Cuba as function as a dualist system. Currently Cuba is in the process to approve a new Decree-Law in this matter.
7. Cuban Environmental Legal System Constitution Article 27: The State protects the environment and the natural resources of the country. It recognizes their close link with the sustainable economic and social development for making human life more sensible, and for ensuring the survival, welfare, and security of present and future generations. It corresponds to the competent organs to implement this policy. It is the duty of the citizens to contribute to the protection of the water and the atmosphere, and to the conservation of the soil, flora, fauna, and all the rich potential of nature. Cuban Constitution does not recognize the right to enjoy a clean and healthy environment as a constitutional right.
8. Cuban Environmental Legal System(cont.) Law Number 81, 1997 “Law of the Environment” Framework law (163 articles) -Establish the legal principles (Rio principles), objectives and basic concepts of Cuba's environmental policy. - Establish the institutional framework and the tools for their implementation. - Assign the powers, functions and duties of the state agencies and bodies. - Regulate the rights and obligations of natural and legal persons. - Establish the instruments of the environmental policy and management: The National Environmental Strategy The right to the clean and healthy environment in Cuba is a right regulated in a law, not in the Constitution.
9. Cuban Environmental Legal System (cont.) Law Number 81, 1997 “Law of the Environment” Framework law - Regulated specifics spheres of environmental protection (83 articles):
10. Cuban Environmental Legal System Law Number 85, 1998 “Forest Law”. Decree-Law Number 190, 1999 “Biological Safety” Decree-Law Number 200,1999 “Environmental Contraventions” Decree-Law Number 201, 1999 “National System of Protected Areas” Decree-Law Number 212, 2000 “Coastal Zone Management” Resolution 111, 1996 adopted by the Ministry of Science, Tech. & Environment“Rules about the Biological Diversity” Resolution 132, 2009 adopted by the Ministry of Science, Tech. & Environment “Rules for Environmental Process Assessment” Resolution 103, 2008 adopted by the Ministry of Science, Tech. & Environment “Rules for the Environmental Regulatory Inspection”
11. List of relevant MEAs Cuba is part
12. Law Enforcement Authorities - General Attorney of the Republic - Courts (Economic Section at the Provincials Court)
13. Law Enforcement AuthoritiesCompetence Field
14. Examples of good implementation of an specific MEA at national level CITES 1. Law Number 81, 1997 “Law of the Environment” Title Six “Specific areas of environment protection” Charter 2 “Protection and sustainable use of the biological biodiversity” Article 87: Mandate the Ministry of Science, Tech. & Environment in coordination with other relevant ministries and organizations to regulate the trade of species protected by international agreements ratified by our country. 2. Decree-Law Number 200,1999 “Environmental Contraventions” Article 8: Establish an administrative fine between 250 and 5000 Cuban pesos for the natural or legal person that violates the regulations establish for the international trade of species protected by international agreement. The specimenwill be confiscated. (CITES, Article VIII, Measures to Be Taken by the Parties)
15. Examples of good implementation of an specific MEA at national level CITES 3. Resolution Number 87, 1996 adopted by the Ministry of Science, Tech. & Environment “Rules for the accomplishment of the obligations contracted by the Republic of Cuba in CITES”
16. Examples of good implementation of an specific MEA at national level Basel Convention Article 4, paragraph 4, requires each Party to take appropriate legal, administrative and other measures to implement and enforce the provisions of the Convention, including measures to prevent and punish conduct that is in contravention of the Convention. Furthermore, Article 9, paragraph 5, of the Convention requires Parties to introduce appropriate national/domestic legislation to prevent and punish illegal traffic. By Article 4, paragraph 3, all Parties consider that illegal traffic in hazardous wastes or other wastes is criminal. 1. Law Number 81, 1997 “Law of the Environment” Title XIII “Other dispositions relates to the protection of health and the quality of life relates with adverse environmental factors” Charter 4“ Hazardous and radioactive wastes” Article 153: Importation of hazardous and radioactive wastes requires the prior and express authorization by the Ministry of Science, Tech. & Environment in correspondence with the international recommendations and national regulations and foreseeits application socially justified. Article 154: The illegal traffic of hazardous wastes will be punished according to the Cuban law. Article 155: Mandate the Ministry of Science, Tech. & Environment in coordination with other relevant ministries and organizations to regulate the management of the hazardous and radioactive wastes. 2. Resolution 136/2009 adopted by the Ministry of Science, Tech. & Environment “Rules for the integrated management of hazardous wastes”. Drafted following the Model of NationalLegislation, Adopted by the COP (decision II/5, 1994).
17. Examples of good implementation of an specific MEA at national level Basel Convention
18. General Conclusions Does not exists an unique procedure to implement MEAs at national level. Each MEA has its own characteristics and differents procedures to implementation, compliance and enforcement. The lack of financial and specialized human resources obstructthe adequate implementation of MEAs. National Legislation has to move forward to achieve the goals of the MEAs. In the Cuban experience the environmental law draft process is conducted in accordance with the Models of Nationals Law. The environmental regulatory authorities has to be clearly identified for the compliance and enforcement at national level in accordance to requirements established by MEAs.
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