The Escazú Agreement: A Leap Forward for Environmental and Human Rights Protection in Latin America and the Caribbean

Alessandro Rollo is an associate at Omnia Strategy in London specialising in public international law, international dispute resolution, and human rights.

Photo Credit:  Maik Kleinert

Introduction

The Escazú Agreement is the first treaty addressing access to information, public participation and justice in environmental matters in Latin America and the Caribbean. Hailed as a long-awaited breakthrough in the region’s environmental governance, the treaty provides a multilateral and human rights-based framework to underpin and promote environmental democracy, cooperation and capacity-building. Focus will now pass to the States Parties and those bodies responsible for its full and effective implementation, to see whether the Agreement’s shortcomings can be mitigated and its substantial promise realised.

With Argentina and Mexico having deposited their ratification instruments with the UN on 22 January 2021, the Escazú Agreement will enter into force on Earth Day, 22 April 2021. The treaty has been ratified by 12 States – Antigua and Barbuda, Argentina, Bolivia, Ecuador, Guyana, Mexico, Nicaragua, Panama, St Kitts and Nevis, St Lucia, St Vincent and the Grenadines, and Uruguay – with a further 12 States having signed but not yet ratified (full list here). The upcoming entry into force of the Escazú Agreement was welcomed by a group of UN human rights experts, echoed by a broad coalition of civil society supporters.

This post briefly describes the background to the adoption of the Escazú Agreement, provides an overview of its main provisions and discusses its most significant aspects.

Background to the adoption of the Escazú Agreement

The Escazú Agreement was concluded on 4 March 2018 in Escazú, Costa Rica, by a group of Latin American and Caribbean States that are members of the UN Economic Commission for Latin America and the Caribbean. It is intended to implement Principle 10 of the 1992 Rio Declaration on Environment and Development, which states that “[e]nvironmental matters are best handled” by ensuring “access to information”, “the opportunity to participate in decision-making processes”and “access to judicial and administrative proceedings, including redress and remedy”.

The Rio Declaration represented a watershed moment for environmental protection.  In the years following its adoption in 1992, numerous Latin American and Caribbean States adopted environmental protection legislation. (Di Paola and Castillo Díaz, p. 41).

Twenty years after the Rio Declaration, amidst increased awareness of the importance of putting Principle 10 into practice, the outcome document of the Rio+20 Conference encouraged action at the regional level to promote access to information, public participation and access to justice in environmental matters (UN, The Future We Want, para. 99).  The serious threat posed by climate change, particularly in the Caribbean, acted as a catalyst for increased cooperation in environmental matters in the region (De Miguel, pp. 22).  Channelling the momentum, in the aftermath of the 2012 Conference a group of Latin American and Caribbean States expressed their willingness to work on the development of a regional instrument to implement Principle 10.  

The Escazú Agreement is the second such regional treaty, following in the footsteps of the UN Economic Commission for Europe’s 1998 Aarhus Convention. The Escazú Agreement and the Aarhus Convention have a similar structure and cover broadly the same areas: access to information, public participation and access to justice. Nonetheless, as discussed in more detail below, the Escazú Agreement presents various distinct features.

In particular, the main innovative feature of the Escazú Agreement, compared to other environmental treaties, is the strong link it draws between environmental and human rights protection. This is a welcome development given how intertwined the disciplines are generally and, more particularly, the social impacts on indigenous communities of environmental damage and attacks on environmental campaigners. The Escazú Agreement is commendable for its promotion of environmental protection both as a pre-condition for the fulfilment of human rights as well as a human right in its own right.

The Escazú Agreement complements the work of the Inter-American Court of Human Rights, which in recent years has played a pivotal role in linking environmental protection to human rights, particularly by recognising the existence of a right to a healthy environment (see, for example, Lhaka Honhat (Nuestra Tierra) v. Argentina, IACtHR, para 202).

The negotiations of the Escazú Agreement were supported by the UN Economic Commission for Latin America and the Caribbean, which will be the Secretariat of the Escazú Agreement.

Overview of the Escazú Agreement

The objective of the Escazú Agreement is the implementation of the three pillars of Principle 10 — access to information, participation and access to justice — and

“the creation and strengthening of capacities and cooperation contributing to the protection of the right of every person of present and future generations to live in a healthy environment and to sustainable development” (Article 1).

It grants rights to “the public”, the definition of which is considered below.

Regarding access to information, Article 5 provides for the public’s right to access environmental information held by a State Party. Article 6 imposes an active obligation on the States Parties to

“generate, collect, publicize and disseminate environmental information relevant to their functions in a systematic, proactive, timely, regular, accessible and comprehensible manner”.

Article 7 sets forth the public’s right to open and inclusive participation in environmental decision-making. Article 8 sets out the framework governing the right of access to justice in environmental matters.

The Escazú Agreement also addresses, among other things, the protection of human rights defenders in environmental matters (Article 9), capacity building (Article 10) and cooperation (Article 11). The treaty also establishes a consultative Committee to Support Implementation and Compliance, subordinate to the Conference of the Parties, to promote its implementation and compliance (Article 18).

The rights to live in a healthy environment and to sustainable development

The first noteworthy aspect of the Escazú Agreement is the reference in Article 1 to the “the right of every person of present and future generations to live in a healthy environment and to sustainable development”.  

While international human rights courts have recognised the existence of a right to a healthy environment (Lhaka Honhat (Nuestra Tierra) v. Argentina, IACtHR, para 202; Di Sarno v. Italy, ECtHR, para 110), the treaty wording presents an innovative aspect. Article 4 expressly obliges the States Parties to

“guarantee the right of every person to live in a healthy environment and any other universally-recognized human right related to the present Agreement” (emphasis added).

As noted by Stec and Jendrośka (p. 538), this provision can be read as evidencing opinio juris of the customary status of this right. 

The expansive articulation of a right to sustainable development is also significant. The UN Framework Convention on Climate Change recognised the right of States to promote sustainable development. However, the Escazú Agreement goes considerably further by expanding the range of rights-holders to include every person of present and future generations. As well as potentially influencing State Party policy and legislation, this seems likely to contribute to interesting new human rights jurisprudential developments.

The principles

Article 3 of the Escazú Agreement sets out a number of principles to guide its implementation. These include, amongst others, principles of international environmental law such as the preventive and precautionary principles, as well as those of equality, non-discrimination, intergenerational equity, maximum disclosure, non-regression, and progressive realisation.

An especially noteworthy concept, included in Article 3, is the principle of pro persona (also known as pro homine). This holds that human rights rules should be interpreted as extensively as possible when recognising individuals’ rights, and as restrictively as possible when restricting individuals’ rights (Pinto, p. 1). The origin of this principle can be traced back to the jurisprudence of the Inter-American Court of Human Rights (Advisory Opinion OC-1/82, IACtHR, para 41). The principle has also been referenced within the UN Human Rights system (Elgueta v Chile, Communication No. 1536/2006, Individual opinion of Helen Keller and Fabián Salvioli, para 11).

The express inclusion of the pro persona principle in the Escazú Agreement, together with the multiple references to human rights throughout its text, is an example of how the drafters intended to link environmental protection to human rights.

Access to environmental information

Access to environmental information is governed by Articles 5 and 6 of the Escazú Agreement, Article 5 addresses passive disclosure and Article 6 addresses active dissemination of information by the States Parties. 

Article 5 requires each Party to “ensure the public’s right of access to environmental information in its possession, control or custody, in accordance with the principle of maximum disclosure”.  This includes the right to request and receive information from the competent authorities without the need to justify any such request. The competent authorities are required to reply promptly: (i) explaining whether the requested information is in their possession; and (ii) informing the requesting individual or entity of the right to challenge and appeal when the requested information is not delivered. Each State Party is required to have an independent institution oversee compliance.

Article 6 provides that the competent authorities of each State Party shall

“generate, collect, publicize and disseminate environmental information relevant to their functions in a systematic, proactive, timely, regular, accessible and comprehensible manner, and periodically update this information and encourage the disaggregation and decentralization of environmental information at the subnational and local levels”. 

Under Article 6(13), each State Party is required, according to its capacity, to encourage

“public and private companies, particularly large companies, to prepare sustainability reports that reflect their social and environmental performance”.

This forms part of a broader trend of increased human rights and environmental due diligence and reporting obligations.

These provisions represent a welcome development in the region. By establishing a procedural framework for access to information and mandating the dissemination of environmental information, the Escazú Agreement provides a solid foundation for national policy and legislation promoting environmental protection and transparency.

Nonetheless, the Escazú Agreement’s formulation of access to information rights is not without its shortcomings.

First, Article 5 affords States Parties a broad margin of discretion when establishing their legal grounds for refusing information access requests: Article 5(6) states that “[a]ccess to information may be refused in accordance with domestic legislation”. This contrasts with Article 4(3) of the Aarhus Convention, which expressly sets out the grounds upon which a State Party may refuse disclosure. While the Escazú Agreement provides a list of exceptions – including risk to life, safety and health of individuals; national security; negative effects on the environment; and risk of substantial harm to law enforcement – these exceptions only apply “where a Party does not have a domestic legal regime of exceptions”. Such a domestic regime of exceptions is not constrained to the treaty’s fallback list.

The treaty mitigates the risks inherent in its deference to States Parties regarding exceptions by requiring a State Party’s exception regime to take into account the State’s human rights obligations and to favour disclosure (Article 5(7)). Moreover, the reasons for refusal must be clearly defined and legally established in advance. They must also take into account the public interest and be interpreted restrictively (Article 5(8)). Under Article 5(9), the

“competent authorities shall weigh the interest of withholding the information against the public benefit of disclosing it based on suitability, need and proportionality”.

Second, as mentioned above, the Escazú Agreement gives the right of access to information to the “public”, which is defined under Article 2(d) as one or more natural persons or entities “that are nationals or that are subject to the national jurisdiction of the State Party”. This departs from Article 2 of the Aarhus Convention, which does not contain any nationality qualification in its definition of the “public”.

The nationality requirement is problematic. First, as noted by Stec and Jendrośka (p. 544), the definition of public in Article 2(d) of the Escazú Agreement could result in discrimination based on nationality, in stark contrast to the principle of non-discrimination under Article 3. Second, it could frustrate the purpose of the treaty, with nationals of one State Party prevented from accessing information that relates to transboundary environmental matters affecting them but which is held by a neighbouring State Party.

While this is a significant limitation, hopefully the States Parties can be encouraged to avoid this pitfall by voluntarily granting access to information regardless of nationality, guided by the foundational principles of non-discrimination and progressive realisation.

Public participation

Article 7 commits the States Parties to develop open and inclusive participation in environmental decision-making processes. The public must be able to participate from the early stages, to ensure that it can meaningfully contribute to the process (Article 7(4)).

The Escazú Agreement also addresses public participation of vulnerable groups and local communities. Article 7(14) requires the States Parties to make efforts to identify and support vulnerable persons and groups as well as to eliminate barriers to their participation. The States Parties must also guarantee that they implement the Agreement while complying with national and international legal frameworks governing the rights of indigenous people and local communities (Article 14(15). The interaction between environmental protection and indigenous rights has gained prominence in the recent Lhaka v Argentina case, in which the Inter-American Court of Human Rights found that Argentina breached the American Convention on Human Rights by failing to protect indigenous land.

While Article 7(16) expressly requires States Parties to make efforts to identify the public directly affected by any given activity or project (where it potentially has a significant impact on the environment), the nationality-based definition of “public”, discussed above, excludes non-nationals from this obligation.

Access to justice

Article 8 requires each State Party to guarantee effective access to justice in environmental matters. Essentially, where members of the relevant “public” engage with the State regarding matters covered by the treaty – whether in relation to a public decision, action or omission –  the State must ensure access to judicial and administrative remedies in accordance with due process.

While significant discretion is left to the States Parties to implement the access to justice framework, Article 8(3) does set out a number of guarantees that must be offered. These include, for example: effective, timely, public, transparent and impartial procedures; broad active legal standing in defence of the environment; the possibility of ordering precautionary measures; the reversal of the burden of proof and a dynamic burden of proof; and effective enforcement and redress mechanisms.

Article 8 also provides for measures to assist vulnerable persons and groups, including free technical and legal assistance, and requires the States Parties to promote alternative dispute resolution mechanism where appropriate.

Human rights defenders

A particularly innovative feature of the Escazú Agreement is the inclusion of a provision on human rights defenders in environmental matters. Article 9 imposes on the States Parties the obligation to

“guarantee a safe and enabling environment for persons, groups and organizations that promote and defend human rights in environmental matters, so that they are able to act free from threat, restriction and insecurity”.  

This is a particularly welcome and sorely needed provision in the context of the appallingly frequent killings of environmental activists in the region. According to Global Witness, of the 212 such deaths recorded in 2019, over two-thirds took place in Latin America.

Additionally, Article 9 mandates States Parties to take adequate and effective measures to promote the rights of human rights defenders as well as to

“prevent, investigate and punish attacks, threats or intimidations that human rights defenders in environmental matters may suffer while exercising the rights set out in the present Agreement”.

State Parties are, of course, required to comply with their human rights obligations independently of the Escazú Agreement. Nonetheless, if Article 9 can help to ensure that human rights protections are embedded in the States Parties’ environmental regulatory actions, this must be commended.

Conclusion

The impending entry into force of the Escazú Agreement is a welcome development for environmental protection in Latin American and the Caribbean.

One of its main merits is the express linkage of environmental protection to human rights. This link will likely make the Escazú Agreement an important reference point in the area of human rights. Just as the European Court of Human Rights has relied on multiple occasions on the Aarhus Convention, we can expect that in developing its own jurisprudence the Inter-American Court of Human Rights will draw significantly from the text of the Escazú Agreement and corresponding State practice.