Carmen Plaza Martín
Doctor and Professor of Administrative Law and EU Law
Lawyer of the Constitutional Court
In the previous entry of this blog, we connected two international treaties, the Aarhus Convention and the Escazú Convention, with the words of Pope Francis in “Laudatio Si,” highlighting their importance for the care of our “common home.” We also analyzed the objective and essential content of the first of these, the Aarhus Convention, which has just completed two decades since it entered into force.
But the Aarhus Convention, being a “regional” international convention for Europe and Asia, is not only promoting environmental democracy in the countries that have ratified it in this continent but is also a fundamental reference point for the adoption of similar international instruments in other regions of the world. The most outstanding case is the Escazú Agreement in Latin America and the Caribbean, to which we dedicate this second entry.
The Regional Agreement on Access to Information, Public Participation and Access to Justice in Environmental Matters in Latin America and the Caribbean | Economic Commission for Latin America and the Caribbean (cepal.org) was adopted in Escazú, Costa Rica, on March 4, 2018, after practically six years of negotiations. It entered into force on April 22, 2021, with the accession of 24 countries in the region.
This Escazú Agreement aims to “guarantee the full and effective implementation in this region of the rights of access to environmental information, public participation in environmental decision-making processes and access to justice in environmental matters, as well as 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” (art.1). It thus follows, like the Aarhus Convention, an approach based on the exercise of fundamental rights to protect the environment.
But the text of the Escazú Agreement also reflects the needs and particularities of the region, in some respects very different from those of the European environment. Thus, among other novel aspects, the Escazú Agreement incorporates the commitment to guide and assist those individuals and groups in situations of vulnerability who encounter particular difficulties in fully exercising the rights of access recognized in the Agreement and respect for the rights of indigenous peoples and local communities. These provisions are adopted to contribute to the deep-rooted inequalities in that region that may undermine its implementation. It also includes a requirement on the recognition of the rights of “Human rights defenders in environmental matters” to ensure “a safe and enabling environment in which individuals, groups and organizations promoting and defending human rights in environmental matters can operate free from threats, restrictions, and insecurity.”
This incorporates a novel indemnity clause for the benefit of those who act to demand compliance with environmental law, intending to protect them against any reprisals for their activity in defense of the environment – and on whose application in practice may depend the application of the rest of the provisions of the Agreement in a socio-political context such as that of Latin America and the Caribbean. Finally, it should be remembered that this is the region in the world where most environmental defenders have been murdered in recent years. The latest data collected by Global Witness shows that in 2019 more than 212 people were killed for defending the environment and that most of these murders (more than two-thirds) were perpetrated in Latin American countries.
Other innovations introduced by the Regional Agreement for Latin America and the Caribbean is that it provides for the States Parties to “promote” the “participation of the public in international forums and negotiations on environmental matters or with environmental incidence, as well as the participation of the public in national instances to deal with matters of international environmental forums.“ This aspect is undoubted of great importance, given the growing relevance of international and regional treaties and conventions in the development of national environmental policies and law. It also imposes on the Parties the obligation to value “local knowledge, dialogue, and interaction of different visions and knowledge, where appropriate.” It expressly provides that each State Party “shall encourage the use of new information and communication technologies, such as open data, in the various languages used in the country, where appropriate,” while providing that electronic media “shall be used in a manner that does not generate restrictions or discriminations for the public.” It thus refers, on the one hand, to the possibilities and facilities that new technologies offer to articulate the processes of participation and at the same time to the need to prevent the digital gap from leaving out of the participation processes those people who do not have easy access to them, thus increasing the deep inequalities that still exist in the region.
As in the Aarhus Convention, the rights of access to information and participation in environmental matters can be demanded by interested persons and environmental NGOs before national public authorities. And, in the event of a violation of these rights by the latter, their protection can be demanded before federal courts, which must apply the provisions of the Agreement. It also creates an “Implementation and Compliance Support Committee,” which will be “consultative, transparent, non-adversarial, non-judicial and non-punitive,” to review compliance with the provisions of the Agreement and make recommendations, following rules of procedure to be established by the Conference of the Parties, “ensuring meaningful public participation and taking into account the national capabilities and circumstances of the Parties.” Thus, NGOs and the general public will be able to bring to the attention of this Committee the non-compliances of the States Parties that have not been resolved in the national instances.
In short, the Escazú Agreement is an essential instrument to denounce and prevent “the irresponsible use and abuse of the goods of our ‘common home'” and to protect those who defend the environment. It thus responds to the values embodied by Francis of Assisi: care for nature, justice, and attention to the most vulnerable, and commitment to society and peace.
Carmen Plaza Martín