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OFFICE FOR ENVIRONMENTAL REGULATION AND NUCLEAR SAFETY (ORASEN) Ministry of Science, Technology and Environment Cuban experience in the implementation.

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Presentation on theme: "OFFICE FOR ENVIRONMENTAL REGULATION AND NUCLEAR SAFETY (ORASEN) Ministry of Science, Technology and Environment Cuban experience in the implementation."— 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 hierarchy pyramid Constitution Laws Decree-Laws Decrees Resolutions and others provisions

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 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

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 establish the hierarchy of the treaties in the internal legal system. Does not clarify if Cuba is a dual or monist 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. 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): 1. sustainable use of biodiversity10. energetic resources 2. protected areas11. sustainable agriculture 3. water12. sustainable use of landscape resources 4. sea resources13. sustainable development of tourism 5. soil14. cultural heritage 6. watersheds15. noises and vibrations 7. wild flora and fauna16. radioactive and hazardous wastes 8. atmosphere17. Toxic chemicals 9. mineral resources19. Labour relation and environment protection

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 MEA Year enter e 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 CITES1975Law 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

12 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

13 MEA YEAR ENTERE IN TO FORCE Relevant Cuban Legislation Biodiversity Convention for the Protection and Developmen t 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

14 MEA Year enter e 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.

15 MEAYear 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

16 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) 2004Law 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.

17 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) 2004Law 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.

18 Law Enforcement Authorities - General Attorney of the Republic - Courts (Economic Section at the Provincials Court) Administration Authorities Enforcement AuthoritiesMinistry of: Office for Environmental Regulation and Nuclear Safety (ORASEN) Science, Technology and Environment National Office for Fisheries Inspection (ONIT)Food Forest Ranger CorpInterior Nacional Fitosanitary ServicesAgriculture National Veterinary ServicesAgriculture General Custom of the Republic of Cuba

19 Law Enforcement Authorities Competence Field Authorities CBD Cartagena Protocol on Biosafety CITES Ramsar Convention CMS Cartagena Convention SPAW Vienna Convention for the Protection of the Ozone Layer Montreal Protocol on Substances that Deplete the Ozone Layer United Nations Framework Convention on Climate Change Basel Convention Stockholm Convention Rotterdam Convention ORASENXXXXXXXXXXXXXX ONIPXXXXX RangerXXXXXX FitosanitaryXX VeterinaryXXXX CustomXXXXXXXX

20 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 (CITES, Article VIII, Measures to Be Taken by the Parties) 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)

21 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 87CITES DefinitionsArticle 1 Appendix I,II and IIIArticle 2 Regulation of Trade in Specimens of Species Included in Appendix I, II and III Article 3, 4 and 5 Annual export quotasArticle 3, paragraph 2 a), and Article 4, paragraph 2 a), Permits and CertificatesArticle 6 Exemptions and Other Special Provisions Relating to Trade Article 7 Designate ports of exit and ports of 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 ConventionArticle 10

22 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).

23 Examples of good implementation of an specific MEA at national level Basel Convention Resolution 136/2009Basel Convention National definition of hazardous wastesArticle 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 statesArticle 4 General 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 4 General Obligations Consider the illegal traffic as a crimeArticle 4 General Obligations Procedure for transboundary movementArticle 6, 7 and 8 Establish the procedures applicable to the take-back procedure Article 9.2

24 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.

25 Thank You


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