One of the Basic Rights that International Environmental Law has enshrined is the Human Right to live in a healthy Environment, which includes those values that have traditionally been the subject of legal protection; human life, its defense and health.
Considering this Right a prerequisite and foundation for the other Human, economic, political and social Rights.
But despite being internationally recognized this right, our planet continues to be looted, even with the appearance of many warners and exhorters.
It seems that acting and thinking, in a manner compatible with the environment, is not possible.
There are countless questions that still have no encouraging answer, such as: Is the slow destruction of the foundations of our lives unstoppable or can we learn to responsibly and reasonably treat the raw material nature?
What makes it so difficult for us to change our behavior in time to prevent local and global catastrophes? On what thought models is our way of treating the environment based?
This work aims to give an overview of the ways to alleviate these situations that our country is carrying out, specifically the province of Camaguey.
Transcendence of the administrative responsibility derived from the damages caused to the Environment in the International Environmental Law.
Administrative responsibility derived from environmental damage is regulated by all countries in one way or another, as well as being a concern for the International Community, finding its basis in some of the general principles of International Environmental Law. One of the principles that we consider appropriate to address is that of "Liability and reparation of environmental damages", since in the environmental field the general principles of International Law regarding the responsibility of States and the reparation of the damages caused also govern. In accordance with the norms of International Law, the responsibility of the States can result from the violation of an international obligation relative to the protection of the environment, in this case we are in the presence of a responsibility for an unlawful act.The codification work carried out by the United Nations International Law Commission has even included certain aggravated figures of responsibility for an environmental wrongful act, such as the figure of international ecological crime of States or individuals. Also in certain cases, States may incur liability for the harmful consequences of acts not prohibited by International Law (Liability for damages caused, even without an illegal act), but it must be recognized that the technical difficulties of the subject and the perception of the political reluctance it produces have slowed the development of this sector of International Law, resorting in practice to mitigated forms of responsibility).
Principle 22 of the Stockholm Declaration specifically states that States must cooperate to further develop International Law regarding the liability and compensation of victims of pollution and other environmental damage that the activities carried out within the jurisdiction or under such States cause areas outside their jurisdiction. This call to action had little development; then the World Charter for Nature was oriented rather to postulate the rehabilitation of areas that are harmed as a result of human activities, forgetting any statement regarding the responsibilities that may arise.
In relation to this issue, the Rio Declaration stated: “States shall develop national legislation regarding liability and compensation for victims of pollution and other environmental damage. States must also cooperate expeditiously and more decisively in the elaboration of new international laws ”. Several conclusions emerge from this:
- First, that the State is responsible not only for its own public or private actions. In this sense, the envisaged solution that recognizes the responsibility of the State in whose territory activities that cause transboundary harm are carried out, regardless of the strictly private nature of the authors of the contamination, is maintained. Indeed, the State becomes the guarantor of the protection of the environment and, therefore, of its reparation when an aggression occurs. Secondly, the State is responsible not only for the activities carried out within its territory, but also Wherever you exercise control, think, for example, of ships, planes or space objects of your nationality or missions sent to Antarctica.The principle under review goes beyond the interstate nature of transboundary pollution and compels States vis-à-vis the international community. In effect, the duty not to cause damage to the environment does not arise only in front of the other States but also in front of the areas located outside any national jurisdiction: the high seas, the air space, the seabed, the cosmic space and the antartida.
As we can see, there is no doubt that the general rules of international law existing in the matter are also applicable in this particular area; and that the very principle of responsibility and reparation for environmental damage, undoubtedly constitutes one of the principles recognized in international environmental law.
Another of the principles closely linked to administrative liability is the principle of restorability, in which it is stated that in terms of liability it covers both damage and injury and the common ownership of environmental goods does not have to distort this principle. For their part, there are other criteria that require the repair of damage in kind. We can say that we live in a world in which all damage is liable to be compensated financially, and so it is with the environment. But unlike other areas in which, in general, the one who receives the economic amount is free to replace or not the damaged thing, in environmental matters the effective restoration is essential and not optional for the administrator of the damaged property, be it the administration or an individual,Given that environmental goods are jointly owned and in accordance with the above, the environment cannot be determined and the economic compensation can be used for other uses. Despite this, there is unacceptable confusion about the irreparability of environmental goods that does not conform to reality. This brings its cause in two phenomena:
In the first place, some environmental movements present environmental damage as irreparable to capture public attention.
On the other hand, judges and experts have not correctly developed the techniques for repairing environmental damage and its economic evaluability. This problem can be solved with a simple adaptation of the known techniques to environmental specificity.
If we consider the cycles of nature, these damages are not irreparable. For example, an illegal emission into the atmosphere, that does not cause harm to public health, is customary to settle with a simple fine, since repair is considered impossible, and that is not true, many times the atmosphere has a self-generating capacity that, as it has been overcome, it can try to increase. Explaining it in a very simple way: an excessive CO2 emission can be compensated by an increase in the vegetal or wooded surface that filters this gas. The cycles of nature have the drawback of the difficulty of acting on the same damaged object, but it also has the advantage that the relationship that exists between all of them allows a fully satisfactory compensatory repair in another environment and in another place.
It is also true that the disappearance of a species, for example, is irreparable, although the application of compensatory measures on these species in search of recovering a certain balance, thus, restorability, is almost always possible.
All of the above is based on the Lugano Convention, in which Article 2 states that the restoration of the damaged or destroyed environment can be done by introducing equivalents to those affected components.
We believe it necessary to mention the principle of common, but differentiated responsibility, which comes from International Law but can be applied to interregional or interlocal relations at the state level. This principle is based on the fact that we all have the biosphere in common, but not all of us contribute equally to its destruction. It is only fair that the responsibility be provided for the use or abuse that is made of it, regarding this it is stated in principle 7 of the Rio Declaration: “The States have contributed in different measures to the degradation of the Environment for what It has common, but differentiated responsibilities.
Developed countries recognize their responsibility in the international search for sustainable development, in view of the pressures that their societies exert on the environment and of the technologies and financial resources available to them. ”
Finally, and in relation to the general principles of International Environmental Law, we must say that administrative responsibility is related to the aphorism that has become general as a principle: the polluter pays.
With respect to it, we can argue that it was first regulated in Chapter 8 of Agenda 21 in the Report of the United Nations Conference on Environment and Development; however, it acquires greater prominence in environmental policy when addressed in article 130 of the Treaty on European Union, which states: "
The principle means that the polluter must bear the costs of the measures taken by public authorities to reduce pollution and achieve a better distribution of resources and ensure that the environment is in an acceptable state. In other words, the cost of these measures must be reflected in the cost of the products and services that cause contamination when they are produced and / or consumed. These measures should not be accompanied by subsidies that could create distortions of competition in international trade and investment. "
The “polluter pays” principle, due to the seriousness of the effects of a polluting action, has led to some corrections:
- The administration authorizes certain levels of polluting emissions, declaring themselves legal, upon payment of an amount that, in whole or in part, will be used to correct or eliminate the contamination. Here we must add that on the one hand the authorizations must not exceed the self-regenerating capacity of the biosphere or the limits of what is assumable by the technical means available to eliminate the effects of contamination. The severity of the consequences and the impossibility of testing in many In cases of authorship or the causal link, the administration charged to public budgets must face the necessary corrections. This applies in very few cases; the hole in the ozone layer or desertification are effects of actions that are not easily individualizable and, therefore, we all suffer them,and with the common economic effort we put remedies. Sometimes they are obliged to pay those who are not responsible for the contamination; for example, the costs of water purification are the responsibility of the consumer, however, the unwanted substances to be eliminated or deactivated come from agriculture or industry, although not individually. Difficulty to determine the damage, because on many occasions it is not perceived, but by the passage of time, and by massive actions for which almost all of us are responsible, such as the greenhouse effect. Difficulty in determining the cause, even if it is a specific phenomenon, the dynamism of the resource means that in a few minutes or hours the task is almost possible. Difficulty identifying those affected except in cases of public health damage with immediate effects,the other assumptions are difficult to single out.
After analyzing these corrections, we can say that this principle is highly controversial, since environmental discourse leads us to assume that the only form of damage to the environment is pollution; and this is not true, we have, for example, the death or trafficking of protected species, or the breach of obligations to carry out certain activities that legally put into operation the liability mechanism.
Summarizing this principle, we conclude that it is closely linked to the administrative responsibility derived from environmental damage, as it entails the following consequences for the owner of the potentially polluting activity:
- It has to pay the fines that may eventually be imposed for breaches of its obligations, it has to pay for the preventive measures that are determined, it has to stop its emissions or change the levels when legally required, it has to repair the damages and compensate the damages caused..
We cannot conclude this section without mentioning the relationship between the principle in question and justice and fiscal protection of the environment. The possibility of protecting the environment with fiscal instruments can be traced at least to the English economist ACPigou, who proposed in 1920 to neutralize by taxes the external costs of production and private consumption. This had no practical consequences until the 1970s, when the first ecological taxes were introduced and the "polluter pays" principle was adopted.
Since then, the protection of the environment through fiscal instruments has been gaining increasing acceptance to such an extent that the imposition of taxes has become the most powerful instrument to reshape national economies towards an ecological attitude.
National authorities should seek to promote the internationalization of environmental costs and the use of economic instruments, taking into account the criterion that the polluter should, in principle, bear the costs of pollution; taking due account of the public interest and without distorting international trade or investment.
In this sense, environmental taxes constituted the core of the First International Congress for Fiscal Protection of the Environment held in Madrid in 1996, with the participation of Spanish and European Union academics and political and administrative officials.
The reasons that seem to make fiscal protection of the environment as the main but not the only tool of environmental policy are several: deterrent effect on the use and abuse of scarce natural resources and harmful substances for the environment, potential collection for the financing of environmental policy programs, economic guiding effect towards activities that generate less damage to the environment, etc.
Fiscal protection of the environment has undoubted technical advantages compared to other types of measures, but it has characteristics, fundamentally its political nature, which require its prosecution not only from a technical but also an ethical point of view. The goal of making polluters pay the full cost of harm they cause to others can be achieved through taxes on polluting activities.
Carmen Artigas. The principles of Environmental Law in light of the international system. - Cited by Collective of Authors. Cuban Environmental Law. - Havana, Cuba: Editorial Félix Varela, 2000. - p. 278.
Demetrio Loperena Rota. Op. Cit. p.73-74.
Demetrio Loperena Rota. Op. Cit. p.65-66.
AC Pigou. "The Economics of Welfare". - Quoted by Ana Yabar Sterling. Environmental Taxation. - Barcelona, Editorial Cedecs SL, 1998. p.245.
