Summary
Sustainable development supposes the care of the environment and the rational use of natural resources, in such a way that the needs and interests of future generations are not compromised, the achievement of such development must necessarily go through an adequate regulation of behavior human. Thus, the study of environmental problems, the conflicts that arise around them and the response to them by the legal system corresponds to the law. While the citizen's right to a healthy environment is recognized as a fundamental right, there is no doubt that collective interests predominate in environmental law.This research assesses the importance of knowledge of the environmental laws in charge of regulating coastal dynamics in Cuba and exposes the main definitions and characterizing elements that must be taken into account in the implementation of an adequate integrated management process in coastal areas.
The problem of environmental deterioration and the degradation of natural resources constitute an international reality, especially when there is not a united political will in pursuit of reducing the alarming levels of pollution that our Planet Earth presents. Being a certain fact that the interdisciplinary legal protection that is offered to this problem that compromises the survival of the human species occupies important investigative spaces.
In the development of humanity, the use of the planet's oceans and coasts has played a fundamental role, constituting a concern of all the alteration caused by human activity and global climate change in the main habitats that make up the marine ecosystem. which results in the variation of its morphology and the processes that usually take place at the ocean - atmosphere - land interface.
For this reason, it has been addressed in recent decades that in the field of protection of coastal areas and the surrounding environment in general, the traditional civil, administrative, and criminal routes do not reach, as well as their inclusion in the constitutional text, standing out the need to apply a dynamic process that enables comprehensive management or management with the primary objective of safeguarding and ensuring the conservation of natural resources and coastal ecosystems.
I - The Integrated Management of Coastal Zones (ICZM). Basic considerations
For a full understanding of the subject, it is vital to conceptualize the term coastal zone as a fundamental link of integrated management, highlighting without doubt that there are no international criteria that unify the defining judgments, Latin American countries such as Uruguay classify it as the interface between the land and sea, where land use and environmental characteristics directly affect marine ecological conditions, and vice versa. On the other hand, Costa Rican specialists argue that the coastal zone is constituted in the zone of direct and mutual influence between the coastal sea and the continental border, where the environmental factors and processes of both present a degree of effective overlap, or give rise to other environmental processes. and specific biotics.
The repealed Spanish Ports Law of 1880 applied in Cuba, in its first article, number one, referred to the maritime-terrestrial zone as that space occupied by the coasts or maritime borders of Spanish territory (in the text), Cuban territory for us, that bathes the sea in its ebb and flow, where the tides are sensitive; and the biggest waves in storms, where they are not.
The current Cuban Environmental Law No. 81 is omission in terms of the definition of coastal zones, including the term when referring to the constituent elements of marine resources but without detail on the part of its articles, leaving the integrated management and other essential components, therefore it was necessary to subsequently promulgate Decree-Law 212, together with other normative bodies that regulate matters that complement the aforementioned Law No. 81 on the Environment.
The most accurate criterion being the one that does not limit the coastal strip to the literal concept of coasts, but extends it from that coastline to the inland, associating said area directly with the productive or service human activity that takes place on the banks of the rivers. Hence, the author joins the conceptualization that Cuba provides in its complementary legislation by considering as a coastal zone “the maritime-land strip of variable width, where the interaction of land, sea and atmosphere occurs, through natural processes. In which exclusive forms of fragile ecosystems develop and particular economic, social and cultural relationships are manifested. "
The deterioration that the Cuban coasts present has imposed the challenge and the need to propose an integrative vision of the management of coastal resources and at the same time, an effective cooperation both at the international and national levels of all the organizations and institutions and the population in general. involved with the problems that manifest this issue.
As of the entry into force in 2000 of Decree Law No. 212, "Coastal Zone Management", the activities to be carried out in this area begin to be carried out on the basis of sustainability criteria, which incorporate both the principles integrated management in land use planning plans, such as scientific knowledge from the study of coastal zones and measures to mitigate environmental impacts.
Although Decree Law No. 212 has marked an important step in the Cuban environmental legal system, the author believes that with the establishment of new working styles aimed at achieving Integrated Management of Coastal Zones, it still has many aspects to improve and include in its regulations for the total elimination of those behaviors that are harmful to the coastal area. Although given the reproaches that since its entry into force were made to the content and the way in which the articles of this legal body were drafted, it is evident that it is plausible and necessary that this instrument be approved or modified to temper it to the reality that surrounds the coastal ecosystem in Cuba today.
The term of integration was approached as a prerequisite of sustainable development in Rio de Janeiro in 1992 where it is assumed that “to achieve sustainable development, environmental protection must constitute an integral part of development processes since it cannot be considered in isolation ”. Hence, it is considered that the recognition of ICZM in Chapter 17 of Agenda 21 prompted the countries that signed the document to direct their actions towards this new type of management from an integrated perspective.
The Integrated Management of Coastal Zones is named on a global scale, through a set of different terms that usually come from the English language, but all have a similar meaning. The transliterations made into the Spanish language are limited to the names of: management, ordination, management, administration and direction.
A more precise definition notes that ICZM is conceived as a dynamic and continuous organizational process that unifies the government and the community, science and management and the different interests of economic entities, the conservation of natural resources, as well as in the preparation and implementation of a comprehensive program for the development and protection of coastal resources and ecosystems.
Hence the need to extend adequate environmental preparation to the different levels of government and the community, since ignorance or lack of understanding of this phenomenon seriously endangers the initiative to safeguard coastal areas and prevents the conscious public participation.
The most viable proposal to stimulate citizen participation, in order to carry out actions aimed at political, social, economic and scientific progress, we consider to be found in the ICZM, because only the concerted and integrative effort carried out will allow solving environmental problems in pursuit of sustainable development.
II - The social actors for the implementation of ICZM.
The implementation of an adequate ICZM requires identifying and including all interested parties. The actors involved depend on the objectives and scope of integrated management. For this reason, the interested parties should include all the organizations and individuals that play a role in decision-making regarding the management of the coastal zone, or that will be affected by the management activities carried out in said zone.
Within the territories, the National Environmental Strategy defines the Governing Bodies of the People's Power as the main actors, in close coordination with the territorial Delegations of CITMA and the communities. Beyond governmental action, the protection of the environment represents the task of each individual and of their different forms of organization and association recognized by law.
Universities and educational centers of different levels of education, territorial centers of culture and sports, companies, the individual and different political and mass organizations, as well as scientific societies, coastal communities and the mass media should also participate. Communication.
It is emphasized that environmental authorities have to develop various forms of social incentives for individuals and entities that stand out in actions to protect natural resources, which will allow for better results and increase public participation.
The ICZM requires the construction of an environmental awareness, based on the knowledge of the main legal regulations that, together with the traditions of these communities, allows for greater participation and understanding of the processes that take place in coastal areas.
In summary, the author considers that the efforts to prepare the different social actors require a state will that is not shielded by difficulties of an economic nature and intends to solve more problems with less, being essential for this to combine real, effective and effective compliance. systemic environmental legislation with the deepening of the dissemination and information of this matter, especially when these efforts are framed in a society with little participatory culture.
III - Main environmental problems that affect the coastal zone of the Cuban Archipelago.
Cuba is the largest archipelago in the Caribbean region, covering a total area of around 110,860 km2. Composed of more than 4 915 islands, islets and cays, it is distinguished by its narrow, elongated configuration similar to that of an alligator. Its insular platform reaches an area of approximately 67,832 km2, with a variable width and shallow bottoms that range between 6 and 8 meters on average. It includes 5,746 km of coastline, of which 3,209 correspond to the North coast, 2,537 to the South coast and 229 km along the Isle of Youth, which denotes the interest and constant concern of our country to defend the existing natural resources to along this strip.
The varied and irregular nature of the Cuban coasts is due to the movements of the earth's crust, in addition to the rise in sea level during the postglacial period thousands of years ago that influenced the formation of bays, inlets and gulfs, hence they play a fundamental role in containing storms, hurricanes and storm surges; Furthermore, they constitute not only a magnificent opportunity for the economic-social well-being of the country, but also the habitat of numerous and important species of flora and fauna.
The special characteristics of our island favor the development of a great diversity of ecosystems, generally of extraordinary wealth. A sample of coastal marine ecosystems is made up of:
- Mangrove forests characterized by their ability to grow and thrive along coastlines are located among saline sediments. These salt-tolerant woody plants act as a refuge or nursery for various species and play an important role in retaining carbon dioxide by capturing solar energy for photosynthesis. High-productivity Coastal Lagoons determine the stability of coastal areas. Intervening in the runoff process where innumerable amounts of nutrients are dragged and retained by them, Coral Reefs are used in the production of food, health and other aspects of human survival, in addition, they provide habitat for a vast number of calcareous organisms. sedentary, such as algae, corals or other madrepores,that contribute to the formation of sandy beaches and sheltered ports. The bays are characterized by the entrance of the sea into the land that forms a wide concavity where boats can anchor to shelter from the wind. They present in our country as a similar characteristic that in most cases they are closed and in the form of a bag. They are home to large population settlements and the main ports that provide fishing resources such as crustaceans and mollusks, among others. Beaches are dynamic systems capable of self-regulation that act in defense of the coasts. The vast majority are subjected to a moderate erosion process caused by the deficit in natural sources of sand and the continuous rise in sea level, which leads to the need for strong investments for their recovery.Wetlands represent ecosystems of high priority due to the natural values they possess due to their high index of biological diversity, in addition, they contain areas of marine and shallow waters.
As the problems that affect the state of the coastal zones increase, the scientific, social and governmental systems of institutions must rigorously elaborate, implement and evaluate the aspects related to ICZM programs. So that social actors put into practice the need to properly manage the "coastal space".
Therefore, the reduction of environmental impacts requires a clear political and social will, as well as solid scientific bases that, following the close relationship between the resources, uses and issues that are developed in the coastal zone, will allow us to face management in a comprehensive manner., promoting the best communication, rapprochement and coordination between individuals, institutions and countries.
It is appropriate to state that the improvement and intensification of a fishing industry that is ahead of comprehensive knowledge about the maximum allowable catches and accelerated tourism development in beach areas without adequate knowledge of coastal stability requires scientific and intellectual exercise., administrative and political to preserve the harmonious and balanced operation of the nature of the Cuban Archipelago, which has been the victim of inadequate planning and management of the coastal zone.
The vulnerability of coastal ecosystems in Cuba is a factor to take into account, along with others no less important such as: the reduced physical land space and the high proportion of surrounding marine spaces, the limited resources that do not allow much margin of error in its use, the high sensitivity to receiving extreme natural phenomena in its environment, the low climatic variability, the influence of terrestrial events and the dangers associated with the treatment of residuals and waste dumping.
IV- The role of Law in protecting the environment
Civil Law in environmental matters
In doctrine, civil law has traditionally been responsible for repairing damages, extending its application to environmental damage, where the position of Latin American countries that refer to civil law for the solution of this problem is a typical example, however, it does not always find full legal support in this matter.
The problems concerning environmental civil liability raise in the first place the difficulty of identifying the damage, its causes and sources, which is extremely complex depending on the damage that occurs as well as identifying the causal link, that is, demonstrating what they were. those responsible for the damage, especially in difficult-to-solve cases that last for a long time.
It is also controversial from the procedural point of view, with respect to active legitimation, who is responsible for bringing the action before the competent bodies to settle this type of litigation, if it is taken into account that the effects caused by environmental damage have a significant impact on general in a large number of people.
Sometimes the scope of both personal and material damage is unknown, as well as whether it can be reproduced, or cause more serious secondary effects than the initial damage, in addition, the absence of a specialized jurisdiction in environmental matters makes it difficult to know and solve this type process.
Another implacable factor is the statute of limitations for claims, highlighting in some laws the regulation of longer terms to file a claim for environmental damage, such as Spanish legislation that establishes a term of 3 years to act in this type of litigation and 30 years of expiration.
Comparative legislation allows us to appreciate the various treatments that are given to this issue by foreign legislation, for example the case of Argentina, which in its Constitution recognizes in its Article 41 the nature of the legal right of the environment, establishing the right of citizens to enjoy a healthy environment, in addition, to refer to the obligation to reward that will generate environmental damage. On the other hand, Costa Rica in its Constitution in Article 50 not only establishes the right of Costa Rican citizens to a healthy and balanced environment, but also empowers every citizen to report damages that affect the environment and confers legitimacy on any citizen to claim for the damage caused.
Criminal Law in environmental matters
Criminal Law must protect the environment based on exemplary measures given the possibility of sanctioning even when there is no possibility of real material retribution for the pollution caused. The criminal legal protection of the environment is currently a globally recognized need, but acting only as a last resort in the most serious cases when the resources used are insufficient, the intervention of the criminal sanction being legitimized last, standing out in the international community growth by safeguarding environmental interests from the sphere of Criminal Law.
The result of a group of modifications made to the Penal Code in force in Cuba reduced the criminal sphere of a group of conducts that due to their characteristics were not the object of this type of protection, but despite the new changes that have accompanied recent years to this text, the environmental issue continues to be marginalized to a certain extent, hence the fact that our country does not provide express criminal protection for the environment, as a legal asset, despite regulating dissimilar criminal figures that protect components of the environment.
The Cuban Penal Code maintains a reductionist stance since in the treatment it provides in its articles, it does not cover the content of the concept of the environment, limiting its protection to a series of elements that make up the natural environment, dedicating a Title or a specific Chapter, position that in a general way is also evidenced in international legislation, for example, the German Penal Code, from an anthropocentric position protects the elements of the environment insofar as it leads to the safeguarding of those vital foundations for man. On the contrary, Paraguayan law uses an ecocentric doctrine, assuming the right of the environment to be protected in itself without having to resort to the foundation of the mediate protection of man.
The safeguarding of the environment and coastal ecosystems as a component of the same does not only depend on the regulation of effective laws balanced with the changing context that the natural environment shows, but on creating awareness, educating and jointly working to prevent and guarantee the well-being of current and future generations, in which the possibility of a clean planet is not a chimera or a challenge, but the reality in which we can develop as human beings.
Conclusions
First: After carrying out an analysis from the theoretical perspective of the definitions and characterizing elements of the Integrated Management of Coastal Zones, we determined that its inclusion within the environmental legal system allows the correct implementation of programs, strategies and projects that guarantee the protection and sustainable use of coastal resources.
Second: Knowledge of environmental legal regulations enables compliance with their provisions, the formation of values, the active participation of social actors, and the effective execution of management programs that guarantee the good state of coastal ecosystems.
Third: The promotion by educational and government institutions at a universal level of Environmental Law from an interdisciplinary perspective favors a better understanding of the way in which this discipline is related in an integral way with the rest of the branches of Law, and in particular with Civil and Criminal Law.
recommendations
First: Increase the dissemination by the different mass media of the environmental legislation in force to promote participation and full compliance with the established regulations.
Second: Promote spaces or mechanisms that inform and educate new generations about the fundamental role played by the dissimilar elements that make up the coastal ecosystem in the economic and social development of the country.
Bibliography
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National legislation
- Constitution of the Republic of Cuba of February 24, 1976, amended in 1992 and 2002, revised and agreed by the Directorate of Legislation and Advice of the Ministry of Justice, Editorial Pontón Caribe SA, Havana, 2005 Law 81 Del Medio Environment of July 11, 1997 Decree-Law 212 Management of the Coastal Zone of August 8, 2000.
