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 PérezLegal Adviser

ORASEN

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.

Cuban hierarchy pyramid

Constitution

Laws

Decree-Laws

Decrees

Resolutions and others provisions

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.

Decree-Law No. 191, 1999 “International Treaties”

TrackMEAs

The interested Ministry presents the proposal to the Legal Division of the Ministry of Foreign Affairs

Treaty Coordinating Commission (head by the Legal Division)

Compose by all the relevant Ministries.

Discussion in The Commission

The Commission sends the proposal to ratify or not the treaty to the Counsel of Minister

The Counsel of Minister sends the proposal to ratify the treaty to The Counsel of State

The Counsel of State order the Ministry of Foreign Affairs to make the international procedures establish in the treaty.

After the deposit of the instruments of ratification proceed the publication in the Official Gazette

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.

Cuban Environmental Legal SystemConstitution

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.

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.

Cuban Environmental Legal System (cont.)

Law Number 81, 1997 “Law of the Environment” Framework law

- Regulated specifics spheres of environmental protection

(83 articles):

1. sustainable use of biodiversity

10. energetic resources

2. protected areas 11. sustainable agriculture

3. water 12. sustainable use of landscape resources

4. sea resources 13. sustainable development of tourism

5. soil 14. cultural heritage

6. watersheds 15. noises and vibrations

7. wild flora and fauna 16. radioactive and hazardous wastes

8. atmosphere 17. Toxic chemicals

9. mineral resources 19. Labour relation and environment protection

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”

List of relevant MEAs Cuba is part

MEA Year entere in to force

Relevant Cuban Legislation

Biodiversity

Convention on Biological Diversity (CBD)

1993

Law Number 81, 1997 “Law of the Environment”

Decree-Law Number 200,1999 “Environmental Contraventions”

Decree-Law Number 201, 1999 “National System of Protected Areas”

Resolution Number 111, 1996 adopted by the Ministry of Science, Tech. & Environment “Rules about the Biological Diversity”

Resolution Number 160, 2011 adopted by the Ministry of Science, Tech. & Environment “Rules for the protection and control of the Species of especial signification for the Biological Diversity in the country”. (Approve but not in force yet)

Cartagena Protocol on Biosafety

2003 Law Number 81, 1997 “Law of the Environment”Decree-Law Number 190,1999 “Biological Safety”Resolution Number 180/2007 adopted by the Ministry of Science, Tech. & Environment “Rules for the Authorization of Biological Safety”

CITES 1975 Law Number 81, 1997 “Law of the Environment”Decree-Law Number 200,1999 “Environmental Contraventions”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”

MEA Year entere in to force

Relevant Cuban Legislation

Biodiversity

Ramsar Convention

1975

Law Number 81, 1997 “Law of the Environment”Law Number 85, 1998 “Forest Law”Decree-Law Number 136, 1993 “Forest Heritage and wild fauna and its contraventions” (partial derogate by Law Number 85. Only in force the section related with wild fauna). Decree-Law Number 138, 1993 “Land waters”Decree-Law Number 164, 1996 “Rules for fisheries”Decree-Law Number 201, 1999 “National System of Protected Areas”Decree Number 179, 1993 “Soil Protection, Use and Conservation and its contraventions” Decree Number 180, 1993 “Contraventions of the regulations of the Forest Heritage and wild fauna and its contraventions” Resolution Number 330, 1999 adopted by the Ministry of Agriculture “Rules of the Forest Law”

Convention on Migratory Species (CMS)

1983

Law Number 81, 1997 “Law of the Environment”Decree-Law Number 136, 1993 “Forest Heritage and wild fauna and its contraventions” (partial derogate by Law Number 85. Only in force the section related with wild fauna). Decree-Law Number 138, 1993 “Land waters”Decree-Law Number 164, 1996 “Rules for fisheries”Decree-Law Number 201, 1999 “National System of Protected Areas”Decree Number 180, 1993 “Contraventions of the regulations of the Forest Heritage and wild fauna and its contraventions” Resolution Number 330, 1999 adopted by the Ministry of Agriculture “Rules of the Forest Law”

MEA YEAR ENTERE IN TO FORCE

Relevant Cuban Legislation

Biodiversity

Convention for the Protection and Development of the Marine Environment in the Wider Caribbean Region (Cartagena Convention)

1986

Law Number 81, 1997 “Law of the Environment”Decree-Law Number 136, 1993 “Forest Heritage and wild fauna and its contraventions” (partial derogate by Law Number 85. Only in force the section related with wild fauna). Decree-Law Number 138, 1993 “Land waters”Decree-Law Number 164, 1996 “Rules for fisheries”Decree-Law Number 201, 1999 “National System of Protected Areas”Decree Number 180, 1993 “Contraventions of the regulations of the Forest Heritage and wild fauna and its contraventions”

Protocol Concerning Specially Protected Areas and Wildlife (SPAW Protocol)

2000

Law Number 81, 1997 “Law of the Environment”Decree-Law Number 136, 1993 “Forest Heritage and wild fauna and its contraventions” (partial derogate by Law Number 85. Only in force the section related with wild fauna). Decree-Law Number 138, 1993 “Land waters”Decree-Law Number 164, 1996 “Rules for fisheries”Decree-Law Number 201, 1999 “National System of Protected Areas”Decree Number 180, 1993 “Contraventions of the regulations of the Forest Heritage and wild fauna and its contraventions”

MEA Year entere in to force

Relevant Cuban Legislation

Atmosphere

Vienna Convention for the Protection of the Ozone Layer

1988

Law Number 81, 1997 “Law of the Environment”Decree-Law Number 200,1999 “Environmental Contraventions”Resolution 116,2005 adopted by the Ministry of Science, Tech. & Environment. Updated the National Chronogram for the Control of Substances that Deplete the Ozone Layer.Resolution 29, 2004 adopted by the Ministry of Science, Tech. & Environment. “National Program of Volunteer Declaration”Resolution 114, 2003 adopted by the Ministry of Science, Tech. & Environment. “National recognition for institution free of Substances that Deplete the Ozone Layer.Resolution 107, 2004 adopted by the Ministry of Science, Tech. & Environment. “Prohibit the intentional emissions of Substances that Deplete the Ozone Layer.

Montreal Protocol on Substances that Deplete the Ozone Layer

1989

Law Number 81, 1997 “Law of the Environment”Decree-Law Number 200,1999 “Environmental Contraventions”Resolution 116,2005 adopted by the Ministry of Science, Tech. & Environment. Updated the National Chronogram for the Control of Substances that Deplete the Ozone Layer.Resolution 29, 2004 adopted by the Ministry of Science, Tech. & Environment. “National Program of Volunteer Declaration”Resolution 114, 2003 adopted by the Ministry of Science, Tech. & Environment. “National recognition for institution free of Substances that Deplete the Ozone Layer.Resolution 107, 2004 adopted by the Ministry of Science, Tech. & Environment. “Prohibit the intentional emissions of Substances that Deplete the Ozone Layer.

MEA Year entere in to force

Relevant Cuban Legislation

Atmosphere

United Nations Framework Convention on Climate Change

1994 Law Number 81, 1997 “Law of the Environment”Decree-Law Number 200,1999 “Environmental Contraventions”Decree-Law Number 212,2000 “Coastal Zone Management” 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”

Kyoto Protocol to the United Nations Framework Convention on Climate Change

2005 Law Number 81, 1997 “Law of the Environment”Decree-Law Number 200,1999 “Environmental Contraventions”Decree-Law Number 212,2000 “Coastal Zone Management” 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”

MEA YEAR ENTERE IN TO FORCE

Relevant Cuban Legislation

Chemicals and

Hazardous

Wastes

Basel Convention

1992

Law Number 81, 1997 “Law of the Environment”Resolution 136/2009 adopted by the Ministry of Science, Tech. & Environment “Rules for the integrated management of hazardous wastes”.

Convention on Persistent Organic Pollutants (POPs) (Stockholm Convention)

2004

Law Number 81, 1997 “Law of the Environment”Resolution adopted by the Ministry of Public Health and the Ministry of the Agriculture (1987) Constituting the Pesticide Central Register.Resolution 96/2004 adopted by the Ministry of Science, Tech. & Environment, relates to the prohibition and limitation of certain chemicals products regulates in the Rotterdam and Stockholm Conventions.Resolution 268/1992 adopted by the Ministry of Public Health, relate to the prohibition and limitation of certain chemicals products regulates in the Rotterdam and Stockholm Conventions.

MEA YEAR ENTERE IN TO FORCE

Relevant Cuban Legislation

Chemicals and

Hazardous

Wastes

Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (Rotterdam Convention)

2004 Law Number 81, 1997 “Law of the Environment”.Resolution 159/1995 adopted by the Ministry of Science, Tech. & Environment, relate to the Prior Informed Consent Procedure for Hazardous Chemicals Resolution 96/2004 adopted by the Ministry of Science, Tech. & Environment, relates to the prohibition and limitation of certain chemicals products regulates in the Rotterdam and Stockholm Conventions.Resolution 268/1992 adopted by the Ministry of Public Health, relate to the prohibition and limitation of certain chemicals products regulates in the Rotterdam and Stockholm Conventions.Resolution 181/1995 adopted by the Ministry of Public Health, relate to the prohibition and limitation of certain chemicals products regulates in the Rotterdam Convention.Resolution 41/2001 adopted by the Ministry of Public Health, relate to the prohibition and limitation of certain chemicals products regulates in the Rotterdam Convention.

Law Enforcement Authorities

- General Attorney of the Republic- Courts (Economic Section at the Provincials Court)

Administration Authorities

Enforcement Authorities Ministry of:Office for Environmental Regulation and Nuclear Safety (ORASEN)

Science, Technology and Environment

National Office for Fisheries Inspection (ONIT) Food

Forest Ranger Corp Interior

Nacional Fitosanitary Services Agriculture

National Veterinary Services Agriculture

General Custom of the Republic of Cuba

Law Enforcement AuthoritiesCompetence Field

Authorities CBD

Cartagena Protocol on Biosaf

ety

CITES

Ramsar Convention

CMS

Cartagena

Convention

SPAW

Vienna Convention for

the Protection of the

Ozone Layer

Montreal Protocol

on Substance

s that Deplete

the Ozone Layer

United Nations

Framework Convention on Climate

Change

United Nations

Framework Convention on Climate

Change

Basel Convention

Stockholm

Convention

Rotterdam

Convention

ORASEN X X X X X X X X X X X X X X

ONIP X X X X X

Ranger X X X X X X

Fitosanitary X X

Veterinary X X X X

Custom X X X X X X X X

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 specimen will be confiscated. (CITES, Article VIII, Measures to Be Taken by the Parties)

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”

Resolution Number 87 CITES

Definitions Article 1

Appendix I,II and III Article 2

Regulation of Trade in Specimens of SpeciesIncluded in Appendix I, II and III

Article 3, 4 and 5

Annual export quotas Article 3, paragraph 2 a), and Article 4, paragraph 2 a),

Permits and Certificates Article 6

Exemptions and Other Special ProvisionsRelating to Trade

Article 7

Designate ports of exit and portsof entry

Article 8

Designate the Environmental Inspection and Control Centre subordinate to the ORASEN as Management Authority

Article 9.1 a

Designate the Oceanology Institute and the Ecological and Systematic Institute as Scientific Authorities

Article 9.1 b

Procedure for Trade with States not Party to the Convention Article 10

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 foresee its 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 National Legislation, Adopted by the COP (decision II/5, 1994).

Examples of good implementation of an specific MEA at national level

Basel Convention

Resolution 136/2009 Basel ConventionNational definition of hazardous wastes Article 1 Scope of the Convention

Article 3 National Definitions of Hazardous Wastes

Import and export controlled by an environmental license. Total restriction to biological wastes. Prohibition to import hazardous wastes for final disposal

Article 4 General Obligations

Notification to other states Article 4General Obligations

Cuban Competent Authorities (Environmental Inspection and Control Centre)

Article 5 Designation of Competent Authorities

Integrate the technical guidelines adopted in the framework of the Basel Convention

Article 4General Obligations

Consider the illegal traffic as a crime Article 4General Obligations

Procedure for transboundary movement Article 6, 7 and 8

Establish the procedures applicable to the take-back procedure

Article 9.2

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

obstruct the 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.

Thank You