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
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”
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)
After the deposit of the
instruments of ratification
proceed the publication in the
Official Gazette
The Counsel of State order the
Ministry of Foreign Affairs to make
the international procedures
establish in the treaty.
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
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 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.
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
enter
e in to
force
Relevant Cuban Legislation
Law Number 81, 1997 “Law of the Environment”
Decree-Law Number 200,1999 “Environmental Contraventions”
Convention 1993
on
Biological
Diversity
(CBD)
Biodiversity
Cartagena
Protocol
on
Biosafety
2003
CITES
1975
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)
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”
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
Ramsar
Convention
Year
entere
in to
force
1975
Biodiversity
Convention
on
Migratory
Species
(CMS)
1983
Relevant Cuban Legislation
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”
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
Biodiversity
Convention
for the
Protection
and
Developmen
t of the
Marine
Environment
in the Wider
Caribbean
Region
(Cartagena
Convention)
Protocol
Concerning
Specially
Protected
Areas and
Wildlife
(SPAW
Protocol)
YEAR
ENTERE
IN TO
FORCE
1986
2000
Relevant Cuban Legislation
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”
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
Vienna
Convention
for the
Protection
of the
Ozone
Layer
Year
enter
e in
to
force
1988
Atmosphere
Montreal
Protocol on
Substances
that
Deplete the
Ozone
Layer
1989
Relevant Cuban Legislation
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.
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
United Nations
Framework
Convention on
Climate Change
1994
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”
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”
Atmosphere
MEA
YEAR
ENTERE
IN TO
FORCE
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
Chemicals Organic
and
Pollutants
Hazardous
(POPs)
Wastes
(Stockholm
Convention)
Relevant Cuban Legislation
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
Convention on
2004
the Prior
Informed
Consent
Procedure for
Certain
Hazardous
Chemicals and
Chemicals Pesticides in
and
International
Hazardous
Trade (Rotterdam
Wastes
Convention)
Relevant Cuban Legislation
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
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
- General Attorney of the Republic
- Courts (Economic Section at the Provincials Court)
Authorities
CBD
Cartagena
Protocol on
Biosafety
ORASEN
X
X
ONIP
X
Ranger
X
Fitosanitary
X
X
Veterinary
X
X
X
Custom
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
Rotterdam
Convention
X
Stockholm
Convention
X
Basel Convention
X
United Nations
Framework
Convention on
Climate Change
United Nations
Framework
Convention on
Climate Change
X
Montreal
Protocol on
Substances that
Deplete the
Ozone Layer
Cartagena
Convention
X
Vienna
Convention for
the Protection of
the Ozone Layer
CMS
X
SPAW
Ramsar
Convention
X
CITES
Law Enforcement Authorities
Competence Field
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 Species
Included 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 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 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 Convention
National 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. Article 4 General Obligations
Total restriction to biological wastes. Prohibition to
import hazardous wastes for final disposal
Notification to other states
Article 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 crime
Article 4
General 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