This is the second part of a two-part analysis of the pillars of the Escazú Agreement (Escazú). The first part (here) introduced the three traditional pillars of Principle 10 of the Rio Declaration and how these are implemented in Latin America and the Caribbean (LAC) through Escazú. These are (i) the right to public participation, (ii) access to environmental information, and (iii) access to justice. The second part specifically addresses the “new” pillars of environmental democracy adopted in Escazú, namely: (iv) the right to a healthy environment; (v) the protection of environmental defenders; and (vi) capacity-building and cooperation.
Pillar 4: The right to a healthy environment
Escazú is a binding multilateral environmental agreement and embraces its character as a human rights instrument. As a human rights treaty, Escazú can be invoked within the human rights protection system of the Organization of American States (OAS). Countries could thus be called on to answer for access rights within the inter-American system of human rights (IASHR), regardless of whether they have ratified the agreement. As a result, Escazú reinforces the recognition of the right to a healthy environment.
The substantive right to a healthy environment for present and future generations is explicitly acknowledged in Escazú as an objective of the treaty and one of its general provisions. The inclusion of future generations is significant and guarantees a commitment to their survival and wellbeing, dependent on environmental protection. The environmental rights of future generations must now be considered in environmental policies, and they now have standing to invoke this right in national and regional courts.
This follows a regional trend of expanding the right to a healthy environment, as seen in the express recognition by the Inter-American Court of Human Rights (IACtHR) in the 2017 advisory opinion on human rights and the environment (see more here) and the contentious case Caso Comunidades Indígenas Miembros de la Asociación Lhaka Honhat (Nuestra Tierra) vs. Argentina (see more here and here). Throughout the text of the agreement, one can easily recognize its commitment to ensuring that the rights acknowledged, whether traditional human rights, the right to a healthy environment, or environmental access rights, are interrelated and interdependent, and therefore contribute to sustainable development and human rights.
Pillar 5: Protective mechanisms for environmental activists
Also particular to the agreement is its protection of environmental defenders (art. 9). Indigenous and other environmental and human rights defenders in Latin America and the Caribbean face significant challenges. The region has been deemed the most dangerous given the rise in socio-ecological conflicts. Land, environmental, and indigenous peoples’ rights remain the most dangerous sector of human rights defense due to the profit-driven exploitation of natural resources. This situation will likely worsen due to the climate crisis. Considering this regional context and history, Escazú seeks to transform socio-ecological disputes to prevent them from turning violent by protecting environmental activists from intimidation and hostility as much as from threats to life and limb.
Escazú is the first legal agreement in the world to stipulate procedural safeguards to protect activists who campaign to preserve natural resources. It requires Parties to guarantee a safe and enabling environment for persons, groups, and organizations that promote and defend human rights in environmental matters. Specific measures include: taking adequate and effective measures to recognize, protect, and promote all their rights and prevent, investigate, and punish any attack, threat, or intimidation they suffer while exercising access rights.
This recognition is essential as the procedural rights (vertical rights between states and citizens) are not enough if the social-political context makes it difficult for these rights to be exercised. Furthermore, the special protection granted to people, in addition to groups, is essential given the regional context. In 2019, 304 human rights defenders were killed globally. The majority was from Latin America, and 40% worked on land, environmental, and Indigenous peoples’ rights.
Pillar 6: Capacity-building & cooperation:
Finally, one of the added values of Escazú stems from the mechanisms for implementation and compliance and the fact that its adoption makes participatory environmental rights less vulnerable to domestic political changes. The agreement expressly provides that it is a floor, not a ceiling. Escazú provides for the minimum obligations that states must observe to fulfill the rights granted by it – States are encouraged to adopt measures beyond what it establishes. Specifically, the rights in Escazú are supported by concrete capacity-building and cooperation provisions, including training of authorities and civil servants, capacity-building programs, provision of adequate equipment and resources, and promotion of education and public awareness. An accessible clearinghouseon access rightsis also foreseen (art. 12) and the establishment of a Committee to Support Implementation and Compliance to meet the treaty’s obligations. Cooperation is multilateral, as the agreement adds vertical obligations to existing national obligations, promotes cooperation and capacity building of at least advanced countries in the field. The agreement establishes a Voluntary Fund to support the financing of its implantation. It is still unclear, however, how these measures will be implemented. The first Conference of the Parties (COP), envisioned to be held within a year of its entry into force, will delineate some of these obligations. The COP must expressly adopt financial provisions for the agreement’s functioning and implementation.
Conclusion: Future of Escazú
The agreement currently has 12 ratifications (see updates here), and many countries who have signed it have not yet ratified it (including Brazil and its two initiators, Costa Rica and Chile). The majority of countries against its adoption refer to political reasons, arguing that it will likely undermine the countries’ sovereignty. The argument of sovereignty has often allowed countries in the Global South to avoid increasing environmental responsibilities, as is often the case in the climate regime. With less buy-in from countries, implementation of Escazú becomes more challenging.
LAC already faces several social and institutional challenges in implementing the treaty, especially regarding a culture of privilege that limits the enjoyment of procedural rights according to socioeconomic status, gender, racial and ethnic identity, and geographical location. Furthermore, religious, political, ethnic, and racial discrimination hinder the participation of vulnerable people and negatively affect the social and ecological scenario in the region. These pervasive inequalities must be overcome so that Escazú can be adequately implemented. In addition, the pandemic has further undermined democracy in LAC and has rendered protecting the environment increasingly difficult.
However, as countries slowly begin to implement the measures adopted, good practices will emerge. Through capacity building and cooperation, countries will hopefully learn from one another and ensure that they have access to valuable alternatives to put into practice the rights and obligations they have committed to.