Submission ID: SEM-96-001
Party concerned: Mexico
Date filed: January 17, 1996
Submission Status: Closed
Latest Update: October 25, 1997
The final factual record was publicly released.
Summary of the matter addressed in the submission:
The Submitters allege that the appropriate authorities failed to effectively enforce environmental laws during the evaluation process of the project “Construction and Operation of a Public Harbor Terminal for Tourist Cruises on the Island of Cozumel, State of Quitana Roo”; Constucción y operación de una terminal portuaria, de uso público para cruceros turísticos en la Isla Cozumel, Estado de Quintana Roo).
The Submitters allege that during the evaluation process of the above-mentioned project, the competent authorities failed to effectively enforce the following environmental laws: General Law of Ecological Equilibrium and Environmental Protection (Ley General del Equilibrio Ecológico y la Protección al Ambiente); Regulation on Environmental Impact (Reglamento en materia de Impacto Ambiental); Instructions to prepare and presenta general declaration of Environmental Impact (Instructivo para desarrollar y presentar la Manifestación de Impacto Ambiental en la Modalidad General). The Submitters also describe other legal requirements that in their opinion were not effectively enforced. These are: the Decree published in the Official Gazette of the Federation establishing the Declaration of a ” (Decreto publicado en el Diario Oficial de la Federación que estableció la Declaratoria de “Zona de refugio para la flora y fauna marinas de la costa occidental de la Isla Cozumel, Estado de Quintana Roo”) of June 11, 1980, the Declaratory Decree of Uses, Functions and Reserves of the Municipality of Cozumel (Decreto de Declaratoria de Usos, Destinos y Reservas del Municipio de Cozumel) of March 9, 1987 and the Law on Harbours (Ley de Puertos). More specifically, the Submitters allege that the above-mentioned project was initiated without a declaration of environmental impacts covering all the works comprised in the project, contrary to the Concession Title awarded by the Secretariat for Communications and Transportation Título de Concesión otorgado por las Secretaría de Comunicaciones y Transportes)for the construction and operation of the project. In addition, the Submitters argue that the project is located within the limits of a protected natural area known as the “Zona de refugio para la protección de la flora y la fauna marinas de la costa occidental de la Isla Cozumel” protected under a special legal regime. The Submitters further allege that the situation is serious and represents an immediate danger for the survival and development of both the Paradise Reef ” Arrecife Paraíso” and the Caribbean Barrier Reef (Cadena Arrecifal del Gran Caribe).
Summary of the response provided by the Party:
The response from the Government of Mexico raises issues concerning the decision made by the Secretariat to accept the submission and to request a response from the Mexican Party.
The Government of Mexico notes that the acts on which the submission was based took place prior to the NAAEC entering into force, pre-dating the creation and establishment of the CEC. The Government of Mexico considers that in the case at issue the NAAEC is being applied retroactively, and also regards the submission inadmissible under Article 14.
The Government of Mexico argues that the submitters failed to provide reliable evidence demonstrating the character of the organizations they say they represent, since they did not supply any information regarding the incorporation particulars of the civil associations they purport to represent nor did they provide the by-laws of such associations. The Government of Mexico further contends that the provisions of Article 14(2)(a) of the NAAEC are being contravened, for the submitters have failed to demonstrate that the facts alleged constitute a direct transgression of the rights of the civil associations they purport to represent. It asserts that it may not be construed from the documentation presented by the submitters that the authority might have issued any resolution affecting their rights. The Government of Mexico asserts that the submitters did not exhaust the remedies available under the Mexican legislation and that, only one of them, the Comité para la Protección de los Recursos Naturales, A.C., availed itself of the popular complaint recourse, which does not in itself constitute an administrative recourse. Finally, the Mexican environmental authorities have pointed out that there is a lack of consistency between the issues raised in the submission and the objectives of the NAAEC, since the submitters failed to establish the necessary relationship between the alleged ecological damage to the flora and fauna of the Paraíso Reef and the also alleged violations to environmental laws.
Names and citations of the environmental laws in question:
- General Law of Ecological Equilibrium and Environmental Protection [Ley General del Equilibrio Ecológico y la Protección al Ambiente (LGEEPA)].
- Regulation on Environmental Impact (Reglamento en materia de Impacto Ambiental)
- Instructions to prepare and present a general declaration of Environmental Impact (Instructivo para desarrollar y presentar la Manifestación de Impacto Ambiental en la Modalidad General )
- Decree published on June 11, 1980 in the Diario Oficial de la Federación, which declares the Protection Zone for the Marine Fauna and Flora of the western coast of the Island of Cozumel in the State of Quintana Roo "Zona de refugio para la protección de la flora y fauna marinas de la costa occidental de la Isla Cozumel, Estado de Quintana Roo".
- Decree published on March 19, 1987 in the Official Gazette (Periódico Oficial del Estado de Quintana Roo establishing the Declaratory Decree of Uses,
Comité para la Protección de los Recursos Naturales, A.C. Grupo de los Cien Internacional, A.C. Centro Mexicano de Derecho Ambiental, A.C.
The Secretariat received a submission and began a preliminary analysis of it under the guidelines.
Acknowledgement - Communication to Submitter(s) authored by Secretariat on 22/01/1996
Submission - Submission authored by Submitter(s) on 17/01/1996
The Secretariat began reviewing the submission under Article 14(1)
The Secretariat determined that the submission met the Article 14(1) criteria and the Secretariat began considering whether to request a response from the concerned government Party.
Determination - Secretariat Determination under Article 14 (1) authored by Secretariat on 06/02/1996
The Secretariat determined that the submission met the Article 14(2) criteria and requested a response from the concerned government Party.
Determination - Secretariat Determination under Article 14(2) authored by Secretariat on 08/02/1996
The Secretariat received a response from the concerned government Party and began considering whether to recommend a factual record.
Party Response - Response from the Party under Article 14 (3) authored by Mexico on 22/03/1996
The Secretariat informed Council that the Secretariat considers that the submission warrants development of a factual record.
Recommendation - Secretariat Notification to Council under Article 15(1) authored by Secretariat on 07/06/1996
The Council voted to instruct the Secretariat to develop a Factual Record.
Resolution - Council decision concerning the development of a Factual Record authored by Council on 02/08/1996
The Secretariat submitted a draft factual record to Council, for a 45-day comment period on the accuracy of the draft.
The Secretariat received comments from the United States.
The Secretariat received comments from Mexico.
The Secretariat received comments from Canada.
The Secretariat submitted a final factual record to Council for Council's vote on whether to make the final factual record publicly available.
Council voted to instruct the Secretariat to make the final factual record publicly available.
The final factual record was publicly released.
Final Factual Record - Final Factual Record authored by Secretariat on 24/10/1997