Introduction to the Symposium
Latin America and the Caribbean (LAC) is a region filled with paradoxes: it is a unique biologically rich region that heavily relies on primary products and natural resources driven by external demands for commodities. As LAC continues to pursue “development,” important ecosystems and ecological processes are affected. It is also the deadliest region for environmental defenders, with countries in the region consistently placing first in rankings. However, the growing practice of environmental democracy shows that environmental issues are best handled with the participation of all concerned citizens.
The Escazú Agreement (Escazú) entered into force in April 2021 as a landmark treaty for advancing environmental rights – and access rights, in particular – in LAC. Countries in LAC now face the hard task of implementing Escazú. Environmental decision-making faces a series of distinctive challenges due to the (i) volume and diversity of environmental interests, (ii) the plurality of environmental values involved, (iii) the uncertain nature of environmental knowledge, and (iv) the complex kind of environmental risk.
The GNHRE has called for contributions for our first virtual symposium, focusing on the Escazú Agreement. The symposium aims to better understand what innovations LAC’s first environmental treaty brings, which challenges in implementation countries face after it has entered into force, and what the effects it has on human rights and the environment on the existing national legal frameworks. Throughout the next few weeks, we will publish diverse views from scholars on the legal aspects of Escazú. This post introduces the symposium and the first view on some of these innovations and challenges.
Introduction to the first symposium contribution
In giving expression to the idea of environmental democracy, Escazú joins the Aarhus Convention – Europe’s 1998 convention on environmental access rights – in implementing Principle 10 of the 1992 Rio Declaration on Environmental and Development. Through three pillars of environmental democracy, Principle 10 introduces environmental procedural rights: (i) the right to public participation, (ii) access to environmental information, and (iii) access to justice. Yet, Escazú provides a regional spin to Principle 10 by recognizing the regional underpinnings of the universal values it expands. Escazú holds that environmental decision-making is rarely straightforward; essential in its implementation is recognizing how Principle 10 applies to the region’s social, cultural, economic, and environmental context. Escazú, therefore, expands on the three traditional pillars of access rights, adding (iv) the right to a healthy environment, (v) the protection of environmental and land defenders, and (vi) capacity building & cooperation. These additional pillars are essential in implementing environmental democracy in LAC.
In recognizing the regional scenario in which Escazú enters into force, I ask what makes Escazú a unique legal tool for environmental democracy in LAC. This comment seeks to introduce Escazú and what it means for the region by explaining what these pillars are. The analysis will be presented in two parts. The first part introduces the three “traditional” pillars and how Escazú particularly implements them. The second part then presents the three “new” pillars and a brief comment on what the future of Escazú holds.
Pillar 1: The right to public participation
To protect the environment and the human rights that depend on it, everyone has the right to participate in environmental decision-making. This is especially relevant in LAC, where decades of extensive environmental impacts of extractive industries and infrastructure projects are at the heart of the region’s socio-environmental conflicts. For example, affected populations in the Amazon region have for long demanded more significant participation in decision-making regarding natural resource exploitation activities. The pandemic has further marginalized these communities, increasing their vulnerability.
Escazú calls on parties to ensure the public’s right to participation through open processes based on domestic and international normative frameworks (art. 7). Escazú ensures affected communities and individuals can participate in a wide range of environmental decision-making processes by guaranteeing specific mechanisms. These include authorizations and revisions of projects and activities that have, or may have, a significant impact on the environment, as well as plans, policies, strategies, rules, and regulations. Citizens shall participate in these processes from an early stage. While “early” is not defined in the agreement, countries shall ensure reasonable timeframes so that decision-makers can adequately consider the public’s observations. In addition, each Party shall establish favorable conditions for public participation adapted to the public’s social, economic, cultural, geographical, and gender characteristics. Specifically, when the primary language of the people directly affected is different from official languages, the public authority shall ensure that means are provided to facilitate their understanding and participation.
Pillar 2: Access to environmental information
Access to information represents an initial point of reference in any public participation process. The reality in LAC is often that projects are developed without accessible information on the project’s environmental impact, long-term effects, or greenhouse gas emissions. Escazú provides for passive measures of access to information (art. 5), i.e., the obligation to respond to requests by the public in a timely and cost-effective manner, and active measures (art. 6), which includes generating, collecting, publicizing, and disseminating environmental information in a systematic, proactive, timely, regular, accessible, and comprehensible manner.
Crucially, this includes requirements for public and private companies to disclose information and develop, for example, sustainability reports to disclose social and ecological records (art. 6(13)). Additionally, states shall progressively implement access to information in electronic databases, which shall be open to the contribution of the public (art. 4(9)). This requirement broadens the reach of access to information as the use of mobile phones increases, given that several impacted communities live in remote areas and cannot easily reach official buildings where permitting procedures are physically held.
Particularly interesting is the care of vulnerable people. Article 2(e) defines vulnerable persons or groups as those facing particular difficulties in exercising access rights due to national circumstances. Given the deep roots of discrimination and inequality in LAC, the special protection of vulnerable groups is essential. The agreement requires easier access and procedures to assist requests and information of various kinds. By protecting vulnerable communities, the agreement seeks to remove the barriers that impede or hinder the full exercise of their environmental rights.
Pillar 3: Access to justice for citizens affected by resource exploitation
Access to justice is materialized in Escazú through the obligation to ensure judicial and administrative mechanisms to challenge and appeal: (i) any decision, action, or omission related to access to environmental information or public participation; and (ii) any decision, action, or omission that affects or could affect the environment adversely or violates laws and regulations related to the environment (art. 8(2)). The latter guarantees external review and strengthens the role of citizens and NGOs in legal implementation. Through this provision, Escazú clarifies that the public also has a role in applying the law through a duty to conserve and protect the environment for present and future generations. Broadening this responsibility and facilitating mechanisms to implement it is essential given the inaction of governments. Escazú provides means, for example, to expand the reach of climate litigation in the region.
Escazú recognizes particular mechanisms to facilitate access to justice, including:
- broad active standing for environmental protection and the need for effective, timely, public, transparent, impartial, and affordable procedures;
- the possibility of taking precautionary and provisional measures,
- measures that facilitate accusers regarding providing evidence of environmental damage (reversal of the burden of proof and the dynamic burden of proof); and
- remedial mechanisms (restitution of conditions before damage, restoration, compensation or payment of an economic sanction, satisfaction, guarantees of non-repetition, the assumption of responsibility of the affected persons, and the financial instruments to support such remedies).
A previous draft included the principle in dubio pro natura, allowing the law to err on the side of the environment whenever possible (see 2017 IUCN Declaration on the Rule of Law). The principle states that, whenever there is doubt, all procedures before a court or administrative body shall favor the protection and conservation of the environment. It is different from the precautionary principle as it applies to uncertainty when balancing norms or fundamental rights rather than scientific certainty.
Preliminary Conclusions
As the first environmental treaty for LAC, Escazú implements Principle 10 by adapting it to regional circumstances. For example, it applied the right to public participation, access to environmental information, and access to justice to the particular challenges of vulnerable populations, in an attempt to ensure that these rights are not exclusive to those who represent privileged groups. Through the mechanisms required, Escazú aims to avoid socio-environmental conflicts. As will be explained in the second part, the three “new” pillars of Escazú reinforce the regional context by adopting the right to a healthy environment, ensuring the protection of environmental defenders, and facilitating implementation through cooperation and capacity-building.