by Alexandra Harrington
The formal entry into force of the Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean (Escazú Agreement) offers a tremendous opportunity for positive legal, regulatory and societal change. It also represents a critical moment for the Latin American and Caribbean region, as well as the international community as a whole, in terms of the ability to meaningfully enforce and entrench the laudable terms of the Escazú Agreement as a matter of national law and practice. From the international community perspective, the Escazú Agreement represents the evolution of the Aarhus Convention to encompass additional human rights and environmental laws. It at once reaffirms the vitality of Aarhus’ terms and highlights the need for regionally-based approaches to such issues because of the nuances existing in different legal and political traditions. Indeed, the entry into force of the Escazú Agreement at this time is prophetic and yet despite the extensive parameters of the Agreement’s protections, without more the success of the Agreement may be hindered by the lack of a robust system for oversight and compliance at the larger regional level. While this is not fatal, this post will highlight the need for a stronger and better-defined system for oversight and compliance for Member States and the potential avenues in which this could occur.
Covid-19 and Context for the Escazú Agreement’s Entry into Force
The Escazú Agreement comes into force at a time when the international community is between coping with the Covid-19 pandemic as an active threat and attempting to create policies for vaccinating populations, opening borders and implementing the legal and regulatory tools needed to create the post-pandemic normal. In the Latin American and Caribbean context, the pandemic has coincided with a marked increase in threats to and deaths among human rights campaigners and advocates, land rights advocates, and Indigenous community leaders seeking to assert the legal rights of their communities. It has also exacerbated issues with access to information and justice across the region, as lockdowns and public gathering restrictions have resulted in the cessation of public hearings and comment periods for development and other projects. With the inability of many affected communities to participate meaningfully through online technologies, it is not uncommon for citizens to find themselves without information and without the tools to express their voices.
Compliance and Oversight Systems
In the context of the Escazú Agreement and access to environmental information, Article 5(18) establishes parameters for independent oversight mechanisms within each Member State “to
promote transparency in access to environmental information, to oversee compliance with rules, and monitor, report on and guarantee the right of access to information.” While subsequent provisions create mechanisms for voluntary information sharing and assistance with implementation of the Escazú Agreement’s provisions in developing Member States, overall the Agreement leaves oversight mechanisms to the discretion of each national system. Article 12, providing for the creation of a clearing house mechanism for Member State laws, rules and policies on access rights is an important step, as can be seen in the clearing house systems effectively deployed by other treaty regimes, yet this lacks an authoritative or evaluative function. Perhaps the most critical examples of the ways in which clearinghouses can function as oversight tools come from the Convention on Biological Diversity system, where the Nagoya Protocol on Access and Benefit-sharing establishes a dedicated clearinghouse of relevant national legislation (the Access and Benefit-sharing Clearinghouse) and the Cartagena Protocol on Biosafety establishes a similar entity for laws and rules relating to biosafety issues.
Critically, the Escazú Agreement makes provisions for a Conference of the Parties (CoP) and the Committee to Support Implementation and Compliance (Committee) as a subsidiary body within the CoP system. The parameters of the Committee are quite broad in that it is tasked with reviewing the implementation of the Escazú Agreement and given the remit of being “consultative and transparent nature, non-adversarial, non-judicial and non-punitive and shall review compliance of the provisions of the present Agreement and formulate recommendations, in accordance with the rules of procedure established by the Conference of the Parties, ensuring the significant participation of the public and paying particular attention to the national capacities and circumstances of the Parties.”
Much of this terminology echoes in existing oversight and compliance mechanisms ranging from those used for the UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention) to the Paris Agreement on Climate Change and beyond. It is, however, in the lack of formal details for compliance mechanisms set forth in the texts that the Escazú Agreementand other agreements share significant overlaps.
Since the Aarhus Convention mechanisms have been successful in assisting Member States and their citizens in availing themselves of their rights and crafting laws and rules that comport with the terms of the treaty regime, and the Paris Agreement’s Committee on Compliance is at the beginning of its functionality, these systems can act as guides for the Committee. Indeed, as the Paris Agreement’s Committee on Compliance has only recently been created and established the rules and principles through which it will operate, it can be an example of how to bridge multiple State Parties to craft a meaningful oversight entity even in the absence of significant treaty-based guidance. The Paris Agreement Committee’s intent to use compliance issues as an informative tool rather than a punitive tool, and the Aarhus Convention Committee’s well-established system of doing this, could serve the Escazú Committee well given the sensitivity of the issues subject to its jurisdiction and the need to ensure that State Parties work with the Committee to ensure compliance rather than establishing a relationship based in antagonism. At the same time, the transparency of the Aarhus Convention Committee’s decision-making process, including making all decisions publicly available, can serve as an example of the ways in which the public can be assured that the oversight process for the Escazú Agreementis indeed focused on ensuring that the treaty regime’s terms are put into effect for the benefit of all.
Given the lack of definition and guidance regarding the structure, meeting schedule, procedure and systems in place for the Committee, it is essential that this be a robust element of the agenda for the first CoP. This is particularly the case given the dire state of human rights advocates and defenders, land rights activists, and Indigenous community leaders throughout the Latin American and Caribbean region which, coupled with the many ways in which access to justice and public participation have been hobbled throughout the region due to Covid-19 pandemic, poses a significant challenge to the realization of the Escazú Agreement.