Summary
Addressing the environmental policy within the Cuban legal system is a subject little studied by foreign jurists, being necessary to carry out a brief historical analysis of the insurance activity in the country until the triumph of the revolutionary project. To do this, we start from the study of Cuban environmental policy, based on constitutional regulations, commercial activity related to insurance policy and foreign investment policy, and other analyzes of legal regulations that contextualize insurance policies in Cuban domestic law. by the Public Administration.
Abstract
Going aboard the environmental policy within the juridical organizing the Cuban is an ill-considered subject matter for the foreign jurists, being precise to accomplish for it a brief historic analysis of the insurance business at the country to the triumph of the revolutionary project. We departed from the study of the environmental policy for it Cuban, as from the constitutional ground rules, the mercantile activity linked with insuring policy and with the political foreign investor and of another analyzes of the juridical ground ruleses than contextualize the insuring policies in the internal right Cuban dictated for the Public Administration.
Introduction
The insurance contract for the commission of environmental damage motivates proposals that seek to solve the problems arising from its non-regulation within the Cuban legal system as a state policy, for this we make a comparison with the different legal systems around the environmental insurance policy; as surety insurance, belonging to the family of guarantee or credit insurance.
To develop the research we used the theoretical - legal methods, this allowed us to assess the Cuban legislation related to insurance, conditions in which it was enacted, content, changes and the assessment of its impact within the environmental, economic-social and cultural policy. The analysis-synthesis for the development of the study of the insurance policy, the characterization of the institution and assessing the state of science regarding the subject, identifying regularities and trends in modern doctrine, documents of Cuban environmental policy and the Ministry of Finance and Prices to locate theoretical and practical positions.The legal-comparative in order to offer a contrasting horizontal perspective in all the investigation of the treatment of the environmental insurance policy by making a qualitative selection of the analyzed legal systems and the legal historical method in order to achieve a correct understanding of the environmental insurance policy as an institution, to provide an effective assessment of the evolution and transition of this institution in foreign legislation and in Cuba (Hernández Sampieri, 2008, pp. 63-117)2008, pp. 63-117)2008, pp. 63-117)
This type of insurance differs since the debtor is the policyholder for the benefit of his creditor and why he responds to the Insurer in the event of his breach of his obligations derived from the contract signed with the Insured "creditor", without the need for a prior interpellation or judicial action, against the assets of the “debtor” policyholder (García Castro, 1984, p.1).
At the beginning of this study on the history of insurance and the systems of responsibility for the commission of environmental damage, the elements that intervene in the relationship between the Public Administration and the administered ones, considering that any system of responsibility tends to establish the repair of the damage, without prejudice to other elements being established within the responsibility, such as preventive measures with an essentially restorative nature. (Ciollaro, 1984)
The main foundation of the insurance is to grant solvency to repair the damage and protect the victim, concluding that progress towards greater coverage of risks by the liability system depends to a large extent on how the insurance mechanisms are capable of internalizing said risks and offer commercial and production agents insurance policies that make the development of activities capable of causing harm to users viable (La Cruz Moreno, 1953, pp. 1-55).
For this purpose, other liability systems are analyzed, such as the North American CERCLA system under the polluter pays principle, that of the Directive of the European Parliament and of the Council on environmental liability in relation to the prevention and repair of environmental damage (Obregón Sánchez, 2008)
Environmental matters, as a privileged field of observation to assess the need to establish liability criteria that are complemented by the need for financial instruments that provide guarantees for eventual and sometimes unavoidable damages that occur. Along with the treatment of environmental risk in general policies, a detailed study of the coverage of contamination risk through specific policies with a clearly specialized underwriting approach cannot be missed. Thus, in the European Union market, the formula that has been used is the formation of coverage pools for pollution damage (Caferrata, 2004, pp. 5).
The insurance policy, which acts as a guarantee policy and each of its mentions will raise the hypothesis of a possible strict liability, showing a certain degree of incompatibility, then with our subjective liability system, in which it is only answered if it has acted with intent or guilt (Meilij, 1975, p.261).
The problems and gaps contained in the regulation of this insurance contract within the Cuban legal system, the difficulty of offering products that are accessible to companies and provide effective coverage for the damage caused and thus propose some measures that provide a proposed in a scenario that is subject to major transformations, as insurance is considered a necessary tool for the proper functioning of an environmental damage repair system, are considerations that have motivated these authors to write this essay.As its link with the environmental management tools for its concession by the insurance entity and the need to implement environmental accounting within the state sector within the accounting system in the country (González Malaxechavarria, 2005, pp. 5-19).
The insurance activity in Cuba, historical tract
In Cuba, for the year 1762 of the last century, the island's trade focused on the links with the Spanish crown. Existing in Cuban ports agents or factors, as they were called then, of Spanish insurance companies that reaffirmed the total monopoly of the metropolis, such as "La Unión", dedicated to the fire industry and "The future of families ”On life insurance.
On January 24, 1795, the first insurance company was established in Havana, through the public deed, "Protectors and Superdirectors of the company to the Blessed Virgin Our Lady of Rule and to Mr. San Cristóbal" (Martínez Escobar, 1945, p.1), its statutes state: "their sponsorship so that, as Godparents of this establishment, they intercede with the Almighty for the success of their companies." Its objective was "general maritime insurance for the four parts of the world" considering its founders, prominent personalities of the Colony, that Havana required insurers since "a place with so much traffic like this one, was in great need of insurers, who in a case or sudden shipment, they can ensure their remittances here ”granting guarantees to the merchant. He had visibility in the ports of Cádiz, Barcelona,Santander, Coruña Tenerife, Guayra, Campeche, Veracruz, Trujillo, New Orleans, Cartagena and Buenos Aires.
By 1845, the first agencies of foreign companies were established (Henríquez Ureña, 1937, p.26.), Mainly English. In 1851, "La Alianza" was created, a credit and insurance company for the life of Chinese settlers and slaves, developing maritime insurance. Already in 1855 several insurers were founded "El Iris", the first mutual insurance company against fires, "La Hereditaria", dedicated to mutual insurance on life and "La Providencia", insurance company on the life of slaves, similar branch to which "La Protectora" was dedicated, created in 1856. These companies had a mixed character, acting as insurance and credit institutions, with close relations with the prevailing slave system.
In 1862, English, Canadian, American and mainly American insurance companies and other nationalities began to operate in the country. Around the year 1882, "Lloyd Habanero" was created, dedicated to maritime insurance and another company dedicated to fire insurance, specialized in insurance. They emerged with new economic orientations, detached from slavery, and under the structure of joint-stock companies.
Dedicated to life insurance, the history of the country reflects the creation in 1891 of the “El Fénix” and in 1895 “Círculo cosmopolitita”, as well as the “Caja de Ahorros y succorros mutuales de los employees y en Trabajadores de la railroads”. of the Island of Cuba ”. Another important event in the historical tract of insurance was the creation of the first company that established an agency in Cuba placing deposits in guarantees as established in Military Order No. 181 of 1899, with the “Fidelity & Deposit Company of Maryland”.
At the end of the 19th century, accident insurance began to be offered to the Cuban market for the first time by the “Norwich Union Fire Insurance Society Limited”. As a result of the first North American intervention, an investment company emerged in Havana that acquired notorious credit and carried out numerous personal insurance operations. The policies were payable in a maximum of six years, and could be canceled earlier, if they were awarded in the raffles that were periodically held.
For the year 1908 two new companies are created; "La Nacional", short-lived and dedicated to life insurance; and “La Mercantil” for fire insurance. The latter starred in a heated dispute with an association that in its statutes prohibited reinsurance and co-insurance, so its president prevented its entry into the same. Mercantil obtained reinsurance from “Home” and “Hartford”, both North American, which, due to their influence in London, managed to get the “Fire Offices Comitte Foreing” (Committee of British companies for foreign business) to send a representative to reorganize the association on new bases that would allow cooperation between associates, resigning the respected but recalcitrant president,achieving the entry of "La Mercantil" and with it a new stage of insurance in Cuba to reborn on firm foundations fixed premium insurance and cooperation between insurers.
In the area of automotive transportation, the first company that offered automobile insurance was the North American "United States Lloys, New York", in 1911. The period of World War I favored neutral countries due to political calm and commercial growth. that sought to fill the void of Europe. In 1915, the first work accident insurance law was approved, which generated a movement to create companies that offered regulated insurance.
Thus, between 1915 and 1919, numerous insurers were created, such as the "Unión Hispano-Americana" organized by the Banco Español, "Cuba", "La Cubana", "Unión Nacional", "Metropolitana", "Internacional", "Comercial", "Unión Agrícola", "Federal", "Alianza", "La Mutua", all in Havana. In other cities "Cienfuegos", "Sagua", "Oriente" and "Unión Antillana" were created. In them the system of multiplicity of insurance lines prevailed, including fire, some maritime, automobile, life and even work accidents. (Henríquez Ureña, 1937, p.26).
Another moment of wealth and splendor, is in the so-called era of the fat cows as recorded in history, it is reflected in the Hispano-American Union, La Cubana and Metropolitana came to establish branches in the United States and Great Britain. By 1920, the collapse of sugar prices and the consequent economic and banking decline weakened but did not collapse the insurance system. (Cantón Navarro, 2009, pp. 1-259).
In 1929, the studies of the National Commission for Statistics and Social Reforms (Wolter del Río, 1931), the insurance premiums collected by national and foreign companies, in life, fire, automobile, maritime and glass lines. According to statistics consulted by the Secretary of Commerce, at the end of December 31, 1935, life insurance companies had more than 26 million pesos in reserves, but of these, about 25 million were invested outside the country. In January 1937, 32 Cuban insurance companies were authorized (Official Gazette Nos. 7, 8, 9,22, 1937).
In 1940, 95 insurance companies were authorized to operate (Montalvo, 1953), from five countries. At the close of 1954 (Montalvo, 1954) there were 162 insurance companies and 5 reinsurance companies, and at the end of 1955 (Montalvo, 1955) there were 154 and 6 companies (Camacho Rodríguez, 1060), respectively.
In 1955, Cuban companies had a market share of approximately 50% of the total business for policies subscribed, reaching 10.4 million pesos for premiums collected (Camacho Rodríguez, 2009).
It is considered that despite the fact that the birth certificate of Environmental Law dates from 1969, the Cuban regulations issued were not focused on the protection of natural resources through insurance companies at this time that is the object of analysis, although in the history of the State and Law in Cuba (Carreras, 1982, p.11), we find some regulations of an administrative nature that came to regulate the use of natural resources, as was the case of water in the capital of the country, and on the We have surely contrasted in this analysis its link with commercial activity (Ojeda Mestre, 2000, p.47)
Upon the triumph of the Revolution as a new social project, many of the companies that were operating closed, or remained inactive and caused a situation of chaos in the market that required the direct intervention of the Revolutionary Government to protect the interests of the insured and the country. Among the main problems presented were the reinsurance protections required by Cuban and foreign insurers, since they were contracted with North American reinsurers or through their headquarters in the United States. (Fernández Bulté, 2005, pp. 97)
Protections that were canceled as a result of the first nationalizations, which caused these companies to stop underwriting new risks, as they did not have reinsurance for their surpluses. Executives and specialized insurance personnel left the country, leaving the companies completely inoperative.
In 1959 there were 52 institutions in the country in the field of social security, called «savings banks», «funds», «retirement funds» or «insurance», classified by the National Board of Economy, in: «retirement and pension of the State "," professional insurance "and" workers insurance ". With the changes that occurred in the political and economic life of the country, social security acquired a new meaning.
In this field, the objectives of the program included immediate financial attention to the existing social insurance funds to guarantee the fulfillment of their obligations without interruption and in the longer term, the coverage of all risks, the extension of protection to all workers, the granting of sufficient benefits, rationalization and administrative unity, the free system and the creation of health insurance. The purpose was to apply measures aimed at initiating a just protection and redistribution of income in accordance with the economic-social line that characterizes the immediate action of the Government. The country faced situations signifying a significant growth in social spending.
The first steps were aimed at the organizational transformation of social insurance. Gone were the political interests that had held back unification for years. The new organization, based on the principle of unity. This process begins in the labor sector, made up of the most homogeneous social insurance. (Portuondo del Prado, 1965, pp. 7-332)
For the month of May 1959, the "Bank of Social Security of Cuba" was created as an autonomous organism in charge of the government and execution of social insurance, to which the twenty retirement funds of the aforementioned sector were incorporated. From that moment on, the functions of its boards of directors were extinguished, as well as the assets of said institutions were transferred to BANSESCU. The objective is to ensure the unity of the administration and then extend the regime to workers without protection.
Law No. 851 of 1960 decreed the nationalization of almost 50 North American insurance agencies based in Cuba, declaring themselves adjudicated to the Cuban State and the Bank of Social Security of Cuba was designated for its administration. The Insurance Control Office is created in the same year to govern all the businesses developed by the insurance entities.
In September 1962, considering the observations and useful suggestions as a result of a broad process of analysis and discussion carried out by the workers, a Social Security Law was drawn up, the scope of which was extended to all workers and more than 250 thousand workers. agriculture were included in the new system.
With the revolutionary project, the State takes care in the first revolutionary laws, in this case those concerning agrarian reform, to take a look at the protection of natural resources. On April 9, 1963, the "International Insurance Company of Cuba" was created, dedicated to the insurance necessary for the development of foreign trade, member of international organizations and executor of the necessary claims and reinsurance.
Law No. 1100 of 1963 represented the culmination of the unifying process and a singular moment in the application of the principles of universality, solidarity, comprehensiveness and integrity in the Social Security System. In 1964, the “National Insurance Company” (ENSEG) began its activities in the country, under the budgetary financing regime, with the functions of attending to the businesses transferred by the Control Office, to supervise and attend foreign companies intervened, the accounting verification of those that were in liquidation and nationalization and integration of the 13 Cuban companies that remained in the private sector. In 1968, the Revolutionary Offensive eliminated insurance broker activity. Resolution 330/1970 of the National Bank of Cuba dissolves the ENSEG in 1970,ESICUBA assuming the insurance portfolios that had a certain impact on the country's economy.
ESICUBA, since its creation, provided coverage for all risks related to the country's foreign economy, aviation, merchant and fishing vessels, foreign trade cargo, Cuban properties abroad (embassies, consulates, etc.) and others. of a similar nature. However, to the extent that the State became the owner of the means of production, it assumed more and greater risks at its own expense (at the expense of the State Budget) without the intervention of the financial insurance mechanism and only those properties that were linked non-Cuban third parties continued to need insurance protections.
During the 1980s, foreign interests began to reappear and ESICUBA's reinsurance activity had reached a certain level in the international market. With the aim of streamlining its international operations, adopting a more commercial work style and clearly decoupling its obligations from the obligations of the State, as of 1987 ESICUBA became a commercial company adopting the corporate name of Seguros Internacionales de Cuba, SA and keeping the acronym ESICUBA as a trade name.
Since 1996 and for seven years, the "Seguro del Turismo, La Isla SA" operated, which specialized in general insurance associated with the tourism sector, a company liquidated in 2003, with ESICUBA assuming the outstanding obligations. Likewise, the “Reaseguradora de la Habana, SA” functioned for some years, which was in charge of placing the risks covered by Cuban insurers in the foreign market, ESICUBA also assuming the task of continuing it. The Cuban company with mixed Cuban-English capital "Heat Lambet de Cuba, SA" operated for several years as an insurance broker. In 1996, “Asistencia al Turista SA” was created, which in turn also operates as an Assistance Company.
More than a thousand insurance agents worked, mainly individuals, carrying out their intermediation work between insurers and clients. Operating as auxiliary insurance entities, INTERMAR SA, SEPSA and the Central Vessel Registry, which were dedicated, among others, to inspection, appraisal and damage adjustment services for insurance purposes. Two reinsurance companies also maintain their presence in this market: a French one, “La Intercontinental de Reaseguros” and the “Reinsurer of the Americas”. (Le Riverend, 1979)
On December 11, 1978, the Public Administration decided to create the "National State Insurance Company" (ESEN), currently renamed "National Insurance Company", whose main objective is to develop different types of national insurance, specializing in personal, civil liability and property insurance. Law No. 1100 of 1963 only included the worker and his family. The new challenge consisted in conceiving social security as a system that guaranteed protection with the widest coverage for the worker, his family and also that part of the population, whose essential needs were not insured or who, due to their living or employment conditions, health required that protection and could not solve its difficulties without the help of society. (Benítez Rojas, 2010, pp.1-5) As part of the Ministry of Finance and Prices, a Public Administration body.
In response to this, the regulation of a system made up of two regimes was conceived: that of social security and that of social assistance that, together, would form a harmonious tone capable of guaranteeing, as stated in the Constitution of the Republic, that «no there is a person incapacitated for work who does not have a decent means of subsistence ”. (Pérez Hernández, 2002, pp. 11-384)
With the change in the social system in the country, the State began to issue regulations that looked at the protection of natural resources, including the Agrarian Reform Law, the Environment Law, the Mining Law, the Forestry Law. and others that have been directed to enjoy a sustainable development between social transformations and man, but have not yet been directed despite the existence of adequate environmental legislation to establish environmental insurance within the internal legal system, which pays to the sustainable development of man with nature (Hernández Aguilar, 2011, p.29)
The legal framework within the domestic law in Cuba of insurance policy
If we take into account a first analysis of what has been called a contract, for Roman Law it is not a homogeneous legal body with a uniform orientation, the work of a legislator, but the result of a very long historical evolution that could begin in the year 753 ac (Rimli, p.220); It is debated whether the Romans understood the contract as a generic form producing obligations or whether, in reality, they knew only certain special contracts. Demofilo de Buen (Vigil Iduate, 2005), affirmed that from the Digest, attributed to Ulpiano, a conception of contract is inferred that, according to her, contract is the action-producing convention, because it has a contract name or a binding civil cause.
Due to the different meanings of the contract, Messineo (Alterini, 1999, p.7) affirms that the contract has been a general and abstract paradigm, capable of accommodating any content by underlining the spatial temporal variety of the concept: likewise, Messineo says «The modern concept of the contract is derived not from the« contactua »of the Romans, but from the knot pact (covenant) recognized by the praetory law that originally, that is, in the oldest Roman law indicated the voluntary element and not what the Romans called "contractus", which was the bond that mediated between two people, whether it had its origin in a voluntary act or in another non-voluntary act, and it was, moreover, a bond that was produced only in relation to a certain content at the time. which corresponded equally determined figures of contract.Only those certain contract figures engendered action, that is, they were recognized by the legal system and protected against non-compliance. (Barrera Graf, 1983, pp. 11-189)
These questions lead us to analyze the insurance contract, from its economic genesis to the legal aspect, in particular that related to natural resources and their protection, linked to environmental control. Insurance: in an economic sense, it is the reciprocal coverage of a fortuitous and valuable need, relative to multiple economies threatened in the same way, so it can be said that without mutuality or reciprocal coverage there is no insurance. This reciprocal coverage can be carried out by two systems: a) By the pay-as-you-go system, b) By the capitalization system. (Cañizares Abeledo, 2013)
Insurance Functions: It has four functions, broken down into, a social function of replacing the paralyzing anxiety of activities with security. The preventive function of risks, through the instructions that insurers impose on the insured to avoid or reduce claims. Compensation or capitalization function, if the event occurs. Financial function, through the investment of the sums collected in the form of premiums or quotas, which can range from a speculative activity to a selective investment activity, in accordance with the state planning of socio-economic development. (Benítez Rojas, 2010)
The Insurance Contract: is the one by which the insurer undertakes, by collecting a premium and in the event that the event occurs whose risk is covered, to compensate, within the agreed limits, the damage produced to the insured, or to satisfy a capital, an income or other agreed benefits. Also known as Policy where the conditions of said contractual act are defined. (Fraga Martínez, 2005)
In domestic law, we analyze its legal tract and verify that it is included in the Commercial Code, a legal norm applied in Cuba from Overseas, which established in its article 380, defining that the insurance contract will be commercial if the insurer is a merchant, and the contract, at a fixed premium, that is, when the insured pays a single or constant installment as the price or compensation of the insurance. Contracts known as life insurance, for industrial or popular life insurance arranged by individual policyholders with nationalized or confiscated insurance companies.
They were settled by virtue of the provisions of Laws No. 1192 and 1193 of 1966. These commercial insurance operations carried out internally by the national insurance company at that time and internationally by the International Insurance Company, both state, created through Resolutions No. 1401 and 416 of 31 of 1963 respectively of the extinct Ministry of Finance. (Castillo Pérez, 2013) These companies were linked to the National Bank of Cuba, according to the provisions of Law 1298 of 1975, proposing and executing the insurance policy and plans at the national level. (Moreno Cruz, 2000)
With the evolution of the revolutionary process and as part of the institutionalization policy applied in the country, Law No. 59, Civil Code, in Article 449, would be defined by the insurance contract, the insurance entity is obliged to pay compensation or make any other benefit up to the total amount or insured value, when any of the events provided for therein occurs: and the insured person to pay a premium calculated in accordance with the established rates. Article 449.1. Voluntary insurance is governed by the provisions of this code and by those issued by the corresponding body, containing the general and special conditions and the rates applicable to each type of insurance. two,Compulsory insurance is governed by the provisions of the law that creates it and additionally by those established in this Code. (Pérez Gallardo, 1999)
Subsequently, it is decided to establish a regulation independent of the insurance contract, promulgating Decree Law No. 263, giving another imprint to the insurance activity, in article 5 of this legal regulation it is established that insurance is the one by which The insurance company undertakes, by collecting a premium, to guarantee the interest of the insured or the beneficiary regarding the consequences resulting from the risk covered by the contract. (Vigil Iduate, 2009).
The Ministry of Finance and Prices (Castillo Pérez, 2013), the body in charge of the activity object of analysis by the authors in this article, dictates Resolution No. 8, current regulations on insurance matters in the country, from which the branches of insurance established in the country which are: goods; personal; of Civil Liability; and others, from which the authors can deduce that environmental insurance, Cuban legislation does not include it, despite this being one of the international policies on environmental matters of which the Cuban State is a party within the so-called International Environmental Law. (Jordano Fraga, 2009)
This type of contract is of utmost importance for the business sector and for the future development of the country's economy in the implementation of the guidelines, related to environmental and monetary-credit policy within the new economic model that is being implemented today. The insurance theory indicates that its function is to restore the insured, after an accident, in a personal or patrimonial situation as close to the one before suffering it; or, if this is not possible, give them financial compensation that mitigates the effects of the damage. It should be noted that we speak of financial compensation, never business, since the nature of the insurance denies that it can be benefited, as it would encourage fraud. (González Rodríguez, 2004)
A first insurance classification could be established as follows: personal insurance: life, accidents, etc., damage insurance: fire, theft, transportation, etc. The insurance is based on the existence of the risk-loss-damage chain consisting of: Risk: the possibility of a future event that could damage the object of the insurance. Loss: materialization of the risk "if we insure a shipment against breakages, these are the loss". And Damage: the damage produced as a result of the accident, which can be quantified "in merchandise is also known as a breakdown".
It is the intention of the authors to give their opinion in relation to some issues included in the standard that may be related to environmental insurance, which are those collected in relation to the risks covered as they are varied, for example: Fire, lightning or explosion, whatever its origin. Earthquakes, earthquakes, volcanic eruption, hurricane, cyclone, windsock, hailstorms and storms. Sinking or landslide. Flood from any cause. Water leak due to any unforeseen cause. Collapse or collapse of walls, roofs or structures of the insured premises or where the insured goods are located. (Garrido Vásquez, 2008, p.44)
Hence, we consider there is a binding link with environmental law and within this with environmental responsibility (Lozano Cutanda, 2009, p.99), environmental inspection (Jaquenod de Zogon, 2009, p.372), audit (Murad Robles, 2009, p.263) and the commission of damages, as part of the sustainable development that is both advocated as an environmental policy by the Public Administration of Cuba in the new economic model that is implemented in the 21st century. (Cánovas González, 2010)
Environmental law
The environmental history of the Earth and of humanity is as modern as the environmental concern itself. The scientific work of Bailes, Caracciolo, Walter, Ruffolo, and Environmental History, raise the methodological difficulty and the impossibility of separating environmental and management problems, as regards society and its institutions. (Caferrata, 2004)
In this environmental study, its components and interrelationships is a long-standing theme dating back to antiquity with early biologists and naturalists, such as Aristotle, Heraclitus of Ephesus, and Anaximander. With the beginning of modern sciences, under the naturalistic model, we find physiologists, such as René Antoine Ferchault de Réaumur, and Antoni Van Leeuwenhoek. Scholars at a geographical level, such as the naturalist and geographer Alexander Von Humboldt, and among evolutionists, Jean Baptiste Monet. (Maximiliano Martin, 1979)
The general and economic history, of the humanistic-historicist tradition, foresaw damages for the 20th century, as a carrier of dangers, inserted the human species in the complex magma of an environment in tension, the scientific material "Les suisses et l'environnement ”, Makes a historical documentation from the eighteenth century, considering the starting point of environmental changes to industrialization. (From Besa Antunes, 2010)
The ecology initiated by Humboldt and the contributions of Wallace and Darwin. And of other proposals by philosophers, which as Holbach pointed out: when men came together to live in society, they made a pact either formally or tacitly, by which they forced each other to serve each other and not harm each other. The diversity that exists among human beings causes an inequality that is the basis of society to reign among them… Justice is also called equity because it prevents each one from using the ascendancy that the inequality of nature or industry has given them to harm to others. (Funes Monzote, 2003)
Engels, in his work "The dialectic of nature", declared concerns dealing with conviction the seriousness of thoughtless and ignorant human actions about nature, in the process of appropriation of its resources, he articulated these mismatches with those of social involvement: « If centuries of work have been necessary until we have learned, in a way, to calculate the remote natural consequences of our acts aimed at production, things were even more difficult as regards social consequences ”(Holbach, 1969)
The steam engine, as the beginning of environmental deterioration, did not allow the proposed harmony, not supported only by the knowledge of the laws and regularities of the functioning of nature. This accelerated advance of science and technology in the post-industrial era, brought with it risks to health and the environment, by using technologies that do not allow their absolute control, and that sometimes escape the possibility of foresight, and guilty imputation of its consequences. (Engels, 1970)
Therefore, it has been necessary for man to build policies that in one way or another help mitigate risks to the environment through insurance policies, and this is the case of environmental insurance. International Environmental Law therefore requires, in the face of risky or possibly dangerous activities carried out in territory under the jurisdiction of the States or under special systems, the adoption of ad intra and ex ante special measures, including, as we already mentioned, the Mandatory Environmental Insurance. (Smoked, 2007)
In this sense, it is important to highlight that there are at least three essential guidelines of the civil system of environmental protection, they are: a) Objective Responsibility, (Galindo Garfias, 2009) b) Reparation in kind and c) Prevention of Environmental Damage. (Jaquenod de Zsogon, 2004) In relation to the first guideline, the attribution "without fault" is a determining mechanism in the system of civil protection of the environment, due to the fact that classical civil liability - based only on subjective guilt - mattered during for a long time an obstacle for the victims to freely access compensation. “And especially in the field of activities with high harmful potential (for example: against the environment), but in principle removed from evidence of guilt, which was therefore outside the compensation system,guaranteeing the polluter a profit margin, at the cost of the population's safety. (Cabeza Ares, 2003)
For this reason, the evolution towards an objective liability for environmental damage constitutes an efficient internalization mechanism, which inexorably imposes the cost of recomposition on the pollutant, thus operating as an indirect prevention system, since the compensatory sanction motivates, as a threat or psychological-economic coercion, not to produce unlawful acts, harmful to the environment ”. (González Molina, 2010)
In the same sense, the Rio Declaration on Environment and Development is expressed in its Principle 16, by establishing that national authorities should endeavor to promote the internalization of environmental costs and the use of economic instruments, taking into account the criteria of that the polluter must, in principle, bear the costs of pollution, taking into account the public interest and without distorting international trade or investment (Brañes Ballesteros, 2009).
In this framework of strict liability, it is essential for polluting or potentially polluting agents to have insurance to cover the costs of restoring the damaged environment to its state prior to the act of contamination. This, from the point of view of the responsibility with which any potential pollutant of the environment must act. From the point of view of the State, it is also essential to establish the obligation to contract this type of insurance, in order to comply with the Principle of Prevention, one of the International Principles of the Environment. (Stiglitz, 1997)
These issues are addressed in relation to three tax principles for the creation of a community liability regime, among which, caution, preventive action and the maximum who pollutes pays. From our point of view, civil liability should be a basic legal instrument for the protection of the environment, as a collective property, as it constitutes one of the most suitable mechanisms to guarantee adequate reparation for damages resulting from dangerous activities. (Alarcón García, 2012, p.205)
It should be noted that the environment has been recognized as a public legal asset, it is considered as res nullius, as a public domain asset, or as a private property asset, but it is considered by the authors that the environment is for collective use, although it responds to interests of a diffuse nature. In the 21st century, environmental problems have worsened more, and solutions are not envisaged to solve the current environmental deterioration that prevails in the world and from which Cuba is not alien, it is important to highlight that within Cuban domestic law there are regulations that enter into regulate the protection of natural resources, but it is necessary to recognize that the state and non-state business sectors are obliged to increase the legal culture in order to be competitive,because a large percentage of entrepreneurs do not have an insurance culture and do not plan it in their accounting records, given the possibility of risks (Carrillo Fuentes, 2011).
The environmental policy in the new Cuban economic model
Within the institutionalization process, environmental protection has had a preponderant space since the constitutional text, contributing to the fact that in subsequent laws issued by the competent body, as part of the substantive law in environmental matters, it is shown that the country dictates protective actions towards nature, in correspondence with the signed treaties, corroborated today with the new economic model that is being implemented. (Triana Cordoví, 2013)
In Chapter I: Political, Social and Economic Foundations of the State, they distinguish four interrelated areas of incidence: the protection of the environment as a guiding constitutional principle of economic and social policy, the public function of environmental protection as a mandate of action for the State; environmental protection as an area of attributions and competences, and the protection of natural resources and all the rich potential of nature as a citizen duty (Monzón Brugera, 2012)
Under the protection of our constitutional text, complying with the requirements of environmental protection and recognizing its close relationship with sustainable economic and social development, is a mandate of the State through the competent bodies to apply this policy. Its application is instituted as a constitutional principle of action by state bodies and becomes an informative basis for the legal system. (Cruz Sardiñas, 2013)
This new economic model erected through the approval of the Guidelines in the 6th Congress of the Communist Party of Cuba, a new environmental law must be rethought, within Cuban internal law, and within the subject matter that is addressed, it is worthwhile to mean that the The country's accounting system has not yet fully incorporated environmental risks, to assess responsibilities, hence the importance acquired by state and professional organizations when defining environmental facts and setting the guidelines for their accounting reflection, so that companies know what the line of action would be in this field, improving the comparability of the information provided, known in the accounting world as green accounting (Del Monte Navarro, 2012)
This legislative debt, related to environmental insurance, due to the fact that our legislation does not establish it in a factual way, although it leaves open in the classification of the branches where the legislator openly indicates "others", colliding by these authors that it is not yet defined, a factor closely linked to the commission of damage to the environment, fundamentally those that come from the actions of Legal Entities, if we take into account that due to the prevailing technological obsolescence in the country, we could point out that the Cuban industry due to its heterogeneity and many years of exploitation, does not comply with international standards related to the Cleaner Productions market, (Caraballo Maqueira, 2009, p.3) causing aggression to the environment,Without failing to recognize this commission also by Natural Persons, with the increase of small entrepreneurs and individual entrepreneurs, who are increasing every day without complying with good practices with the environment. (Antúnez Sánchez, 2012)
The authors agree that environmental law will have to be rethought with new perspectives, most of the environmental damage occurs for legal causes and environmental law contemplates it from a distance and impassive, as expressed by the Director of Environmental Policy of the Ministry of Sciences, Technology and Environment in Cuba, “there seems to be very little doubt about the link between the harshness of these phenomena and human actions. Not only because of the growing indications on anthropic climate change, but also because of the way in which the management of forests, wetlands, basins and other resources contributes to the human and economic cost of these phenomena. They are mega phenomena of environmental damage, although at first glance they do not seem legally apprehensible. " (Rey Santos, 2008)
Legal mandates that have not yet been fulfilled by the Cuban State, such as the implementation within the environmental order, the regulation of mandatory environmental insurance, related to the control environment, challenges of environmental legislation in this 21st century, with the introduction of transversal or horizontal elements in the regulation of the different specific spheres of the environment, stated at the level of principles and without adequate development. (Rey Santos, 2008)
It is not unknown that Article 27 of the Constitution establishes environmental protection as a public function. Technically, while the competent bodies are empowered to intervene in the protection of the environment inspired by sustainable development, the application of said empowerment is ordered with the objective of ¨making human life more rational and ensuring survival, the well-being and security of current and future generations ¨with which solidarity in terms of inter and intragenerational equity, rationality and sustainability transcend the Cuban constitutional text (Hernández Aguilar, 2011).
This environmental protection in Cuba is also considered as a mandate of action for state organs and agencies, while the citizen duty of protection does not concern the entire environment that must be protected by virtue of the legal concept of the environment enshrined in the legal system. positive, but exclusively to the natural environment. In this way, not only the social environment is left out, but also the artificial one constituted by what surrounds man and that he himself has created. (Monzón Brugera, 2012)
The business sector, aware of the legal provisions regulating environmental policies, are not duly complied with due to various causes or contradictions, among which these authors consider to mean: due to lack of priority of the environmental issue, due to inadequate management of budgets or sometimes the activity is not a priority, others do consider that they own it, relegating it to second and third levels, without an adequate vision of the future in relation to the reduction or mitigation of environmental problems in various scenarios to be transformed; the Public Administration bodies that have to exercise control actions do not execute them with the appropriate rigor that the issue warrants; In spite of the fact that the media of social communication is recurrent the treatment of environmental subjects;but they do not conceive the perception of risk, (Viamontes Guilbeaux, 2009) from the labor law they have addressed the socio-environmental and its negative implications in the investigations carried out. (Rodríguez Coquet, 2010)
Other proven authors in the field of comparative law in Latin America, the United States and the European Union, consider that the origins of environmental insurance are given in attention to the fact that today, environmental risks are of vital importance in the insurance industry considering that this has evolved over time and not only economic needs derived from business activity are ensured, but the individual's quality of life is also ensured. (Viguri Perea, 2011, p.53).
In this way, new risks have appeared whose economic implications are unknown and there is not enough scientific knowledge to assess all the damages associated with the occurrence of major environmental problems of the future such as climate change and the shortage of drinking water. (Smoked, 1975).
If we take as a reference the structure of a pollution policy, which must be subject for its formalization to the technical result of the previous questionnaires and audits on the environmental management of the company "environmental audit" carried out in the European Community today, we know that it is indicated the incidence of important problems, relative to what should be understood by contamination, damage and injured. According to the subscription agreements between insurance and reinsurance institutions for the assumption of environmental risks. (González Molina, 2008)
Thus, in the North American sphere, known as Plia and in Spain called Pool Spanish of Environmental Risks "insurance associations", whose opinions together with those of the Spanish Union of Insurance and Reinsurance Entities, define the introduction or dispersion in land, sea or air from materials or forms of energy that produce in the quality of said medium a deterioration that is dangerous or harmful. Establishing two criteria: a) That it originates in the facilities or in the works, where a respectful behavior with the environment must be observed, following a previous environmental audit; b) that occurs accidentally and randomly, both suddenly and gradually. Insurance object: includes consequential damages and lost profits, with the consequent burden of proof,as well as the costs of prevention and reduction. According to the pool, the insurer's benefits are made up of the following items:
- Payment of compensation for personal and material damages and consecutive damages, defined previously and with the limitations already indicated (supra). Payment of expenses originated to stop, reduce or neutralize the contamination, provided that they have been initiated and affected (or are susceptible to do so) to third parties Reimbursement of expenses incurred in order to avoid an imminent risk of contamination Reinstatement of judicial and extrajudicial costs or the expenses of the posting of bonds.
3) Exclusions: Malicious breaches such as fines and own damages would fall into this category. The pool excludes from the policy natural assets or assets with environmental or ecological value that are difficult to assess, but damage derived from radioactive nuclear facilities (which have their own insurance), the insured's facilities (including the ownership, possession or use of land vehicles, flying devices or boats), genetic damage to people, animals or plants, claims for modifications in the level, flow or course of currents or masses of underground or surface water, produced to company personnel, in addition to pure damages that are not a direct consequence of personal or material damage suffered. By last,Damages whose occurrence could not be foreseen by the insured are included, due to the state of scientific and technical knowledge at the time in which the cause of such damages occurred, since in the operations of calculating the premium they could not be foreseen.
4) Temporal delimitation: Traditionally they have been configured with the “claims made” system, a formula questioned by the courts of some countries. Hence, policies are currently being signed under the "first verifiable manifestation" principles, by virtue of which the insurer covers the damage declared, for the first time, during the term of the policy, as long as they are not the consequence of old causes arising with prior to the date of the “historical contamination” contract.
5) Territorial delimitation: It will be important to delimit the geographical scope of the application of the policy. The pool stipulates that all liability for damage originating in any country of the European Union (which is understood as liability for transboundary contamination) must be included.
6) Serial claims: It is estimated that all the damages that are due to the same claim or to the same cause or causes related to it, constitute a single claim for the purposes of the quantitative limit of the policy.
7) Sum insured and maximum limit: Points previously exposed.
8) Optional guarantees: Depending on the autonomy of the will of the contracting parties.
9) Administrative clauses: These are the terms that regulate the obligations of the parties.
Finally, we want to mean that in 1997, a group of insurance companies launched an initiative, within the framework of the United Nations Environment Program, whose objective was to promote management in the insurance sector. At present, more than 80 insurers from 26 countries have joined it. The plan requires the proper management of ecological risks, an introduction of environmental considerations in internal operations, as well as the performance of periodic reviews and the promotion of green products and services. In Spain, we can verify the Pool of Environmental Risks (Viguri Perea, 2011).
With the certification of the ISO 14 001 standards (Lorena Barilá, 2002). There is an experience that, curiously, SMEs are the most interested in pollution insurance, while large companies still prefer to choose to contract this guarantee within their traditional civil liability insurance such as compulsory or free contract insurance and others. Classifications among which are liability insurance for: spill of Hydrocarbons or other harmful substances, liability for nuclear accidents, civil liability for pollution and the liability policy for assimilated pollution of the association of non-maritime insurers (Cabeza Ares, 2003).
Conclusions
- Environmental insurance should not be regarded as the only useful tool in the task of preserving the ecosystem; It is an instrument that, although it protects the state or private and individual patrimony of an insured against the accidental generation of damage to the environment as a result of the performance of an activity, presents difficulties in relation to its application that should not be ignored. time to establish an effective environmental repair system Regulate, through the Ministry of Finance and Prices by the National Insurance Company, the regulations corresponding to environmental liability insurance, on the basis of experiences and international legislation on the matter, applying them to the Cuban context Raise awareness in the state and non-state business sector,on the importance of entering into an environmental liability insurance contract that contributes to the strengthening of the economic capacity and sustainable development of the country, based on respect for national sovereignty and independence and the protection and rational use of resources Implement environmental accounting within the state and private business system, which allows these entrepreneurs to have access to implement policies related to clean productions, certified by the Office of the Comptroller General of the Republic through the practice of environmental auditing. the current Cuban environmental legislation, in order to update it where new guidelines related to environmental responsibility, environmental control and environmental insurance are established.Contextualize the investment policy of Cuba expressed in the foreign investment regulations, with good environmental practices, necessitating the implementation of an insurance policy that contributes to sustainable or sustainable development, in harmony with natural resources.
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