The Fight for Escazú: Environmental Rights & the Corporate Mindset

The Fight for Escazú: Environmental Rights & the Corporate Mindset

In 2018, Latin American states adopted the “Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean”, also known as the Escazú Agreement, for the city in Costa Rica were it was signed. The treaty sets out an obligation for Member States to legislate on these three matters under specific conditions, within the broader context of the UN’s 2030 Agenda for Sustainable Development. This means that each Party must ensure “the public’s right of access to environmental information”, the existence of “mechanisms for the participation of the public in decision-making processes” and “access to judicial and administrative mechanisms to challenge and appeal (…) any decision, action or omission (…) that affects or could affect the environment adversely or violate laws and regulations related to the environment”. In other words, the treaty seeks to give citizens the tools they need to defend their environmental rights.

One would assume such a treaty would be an easy sell. According to a poll conducted by Universidad de los Andes, 75% of Latin Americans are “concerned” with climate change. A treaty that empowers them to hold their governments and businesses to higher level of accountability for their environmental impact should be a popular one. In some countries, however, a coordinated campaign against the treaty has made it a “controversial” topic of conversation, within a debate that is one half conspiratorial and one half revealing of everything that is wrong with Latin American approaches to development. In this post I will look into these arguments, focusing specifically on the debate in Peru – my home country – trying to decipher what this means for the future of environmental protection in the country and beyond.

The first line of attack has been nationalistic and conspiratorial. In early July, two former Ministers of Foreign Relations, Francisco Tudela and Luis Gonzáles Posada, warned that Peru would “lose its sovereignty” over the Amazon Rainforest if Congress ratified the agreement. This was, to say the least, strange. The Escazú Agreement does not even mention the word “Amazon”. This nationalistic line of argument hid an anti-globalist, anti-human rights rhetoric that distorted what the Escazú Agreement is trying to do in reality.

For Tudela, the biggest risk was the agreement’s understanding of who is the “public” that gets to participate in environmental decisions. Article 2d) states: “’Public’ means one or more natural or legal persons and the associations, organizations or groups established by those persons, that are nationals or that are subject to the national jurisdiction of the State Party”. This is a standard definition, but for Tudela it is a Trojan Horse. He believes the reference to “organizations” would allow hostile governments to create shell-entities disguised as NGOs to use strategic human rights litigation to stop investment projects in Peru under the guise of environmentalism, in order to stifle Peruvian growth for political and ideological purposes. For Tudela, after all, NGOs are part of a “Neo-Marxist cultural offensive” bent on destroying traditional values and good old fashioned capitalism. Never mind that the Escazú Agreement does not mention the Inter-American Human Rights System.

Alas, Tudela and Gonzales Posada are former Ministers and their opinions carry with them a certain weight in Peruvian politics. Others soon began to follow suit. Miguel Ángel Rodríguez Mackay, an international law professor, even ventured a reckless prediction: “The Agreement relativizes what should never happen with the Amazon Rainforest. They will end up saying that the Amazon is the shared heritage of mankind, like Antarctica.”* As outlandish and baseless as these claims might seem, they took their toll. The Minister of Foreign Relations backed out, saying further discussions were needed before an eventual ratification. Since then, the agreement has been resubmitted to Congress, but it has little chance of succeeding.  

That a targeted campaign of misinformation can delay approval of this treaty is problematic enough. At the same time, however, I also think it is important to not lose sight of another kind of more mainstream resistance. In late July, Semana Económica, one of Peru’s most respected business-oriented publications, published an article collecting interviews from various law firm partners and business CEOs, asking their opinions on the Agreement. The article was entitled “Escazú: A Double Edge Sword”. This article is important because it reveals the way the system itself approaches (or rather, undermines) issues of Business & Human Rights.

In the article, Francisco Tong, partner of Rodrigo, Elías & Medrano, one of Peru’s most elite law firms, says that “this instrument will be utilized to initiate all kinds of lawsuits and complaints in order to gain more prerogatives than those that correspond to individuals and organizations”. This is a surprising claim. The article does not mention what are these “prerogatives” that Mr. Tong believes we as citizens should not have. The only hint we get is a quote by another partner at another major Peruvian law firm, who says the Agreement would “lead the way to situations that are not necessarily those most conducive to investment”.

The issue of course is the Escazú Agreement does not really create much in terms of “prerogatives”. Individuals already have a right to transparency, access to justice and participation. The Agreement primarily sets out an obligation for states to legislate to guarantee these rights under specific parameters. In other words, the Agreement makes sure that those rights we as citizens already have are fulfilled effectively and comprehensively. But to Víctor Gobitz, CEO of Buenaventura, one of the largest mining companies in Peru, “when you begin to introduce new laws, new regulations, and they have premises and impacts that you did not invest with in the first place, you take away long-term predictability [from investors]”. This, to me, raises alarms. Is Mr. Gobitz really saying that citizens having access to environmental information so they can file a complaint if the rules have not been followed is a problem for the company’s future? Is he really implying that the weakness of the legal system Buenaventura operates in is part of its legitimate expectations?

Well, kind of. Look at the one concrete example the article offers as proof that environmental and human rights legislation are a “problem” for development – the ILO 169 Convention on Indigenous and Tribal Peoples. This treaty binds the state to engage with indigenous peoples to consult their opinion on any government policy that may affect their right to self-determination. Peru ratified this convention in 1995, but did not do anything in way of implementation or accountability for corporations that carried out investment projects in indigenous lands until 2011. In that year, Peru approved the Prior Consultation Act, finally implementing its 1995 obligation. This put investments carried out between 1995 and 2011 in a delicate situation. Peru has a monist system. The obligation to engage in prior consultation was self-executable and in force from the moment the treaty was ratified. In 2019, six pre-2011 investment projects were annulled due to lack of prior consultation. This is, in my opinion, the correct result. For Mr. Tong, it is a cautionary tale: “Just like what happened with the ILO 169 Convention, [Escazú] ends up being an agreement that serves as a tool for various entities with different interests to file lawsuits and judicial claims”. The Agreement, he says, “is more focused on rights, without setting up any limits”.

This is a very problematic statement. It is premised on a concept of business that is completely detached from any kind of human rights duty – if the government does not care about human rights, then my client should not either. But the role of counselor includes a duty to highlight the legal risk the client is taking by investing in indigenous lands without fulfilling a legally binding obligation to conduct a prior consultation process that respects human rights. Instead (and quite outrageously) it is the treaty’s “focus on rights” that represents a problem!

As is widely known, the UN Guiding Principles on Business and Human Rights state that the responsibility to respect human rights “exists independently of States’ abilities and/or willingness to fulfil their own human rights obligations”. This responsibility includes the duty to engage in a “human rights due diligence process to identify, prevent, mitigate and account for how they address their impacts on human rights”. The discussion on the Escazú Agreement, as experienced in Peru, is proof that the system in which these companies operate, including their legal counsel and chief officers, is still far from having interiorized this responsibility.  

It is because of this resistance to accept responsibility that further action is needed, through agreements like Escazú, but also the Business and Human Rights Treaty currently being negotiated, that force states to establish binding rules that spell out human rights obligations to corporations, who can no longer hide behind the vacuous concept of “corporate responsibility”.

The Peruvian experience is a reminder that the problem is not just an anti-globalist, Trumpist approach to multilateralism, but a much more accepted and interiorized mentality, where human rights and corporations do not need to mix. A mindset like this needs to hit the reset button, and treaties like the Escazú Agreement are a way to do this. Hopefully, with enough political pressure and less fake news, the Escazú Agreement will get the two extra ratifications it needs to enter into force.   

*All translations are my own

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Business & Human Rights, Environmental Law, Latin & South America
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