Aarhus and Escazú: The two sides of the Atlantic in the field of public participation in environmental matters

by L Lizarazo-Rodriguez and J Texeira de Freitas*

*Brussels School of Governance and ERC project Curiae Virides (ERC 949096)

On the 2021 Mother Earth Day, Latin-American environmental defenders celebrated the entry into force of the ECLAC Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean, also known as the Escazú Agreement (Escazú). It is the only treaty worldwide that explicitly protects environmental defenders and is applicable in a region where, in 2020, seven of the ten countries with the highest number of assassinated activists worldwide were located. However, its enforcement is not a path free of thorns. This post explores how regional treaties that regulate public participation in environmental matters can be enforced (or not) by regional courts. By considering the experience of the UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, better known as the Aarhus Convention (Aarhus), this post analyses Escazú’s potential to be integrated into the Inter-American human rights protection system. It also sheds light on social actors’ expectations regarding their possibilities to claim the protection of  ecosystems before regional systems and to be protected by them.

Aarhus and Escazú, both initiatives of the mentioned UN regional economic commissions, are trendsetters in protecting civic engagement in environmental matters, crucial in fostering claims to protect ecosystems in the public interest of present and future generations. They result from Principle 10 of the Rio Declaration (1992) that recommended states to promote civic engagement as a good practice to address environmental issues, by ensuring access to information, public participation in decision-making processes and access to redress and remedy. The Framework Principles on Human Rights and the Environment (2018) further improved the scope of Principle 10 by requesting states to incorporate civic engagement into the human rights obligations relating to the environment. Although their non-binding character has been raised as a weakness, the UNEP has stressed that the three pillars of civic engagement (or procedural environmental rights) form part of the core content of the environmental rule of law. The UNEP report also features how Principle 10 has tipped the worldwide adoption of national legislation recognizing the right to a healthy environment and guaranteeing civil engagement.

The binding character of Aarhus and Escazú increase the chances of protecting civic engagement in envirionmental matters as a human right. However, neither Escazú nor Aarhus have their own enforcement mechanisms. Whether regional organizations with jurisdiction in the corresponding member states have applied (or not) Aarhus can shed light on the possibilities of Escazú to be integrated within the Inter-American human rights system. On both sides of the Atlantic, regional courts connect human rights with the need to preserve the environment, and even the San Salvador Protocol to the American Convention on Human Rights (the Pact of San José), as well as the EU Charter of Fundamental Rights explicitly recognize the right to a healthy environment. Nevertheless, regional courts have not enforced it in a direct and autonomous way.

Does Escazú represent progress?

Whether Escazú will be able to activate a systematic and effective protection of the right to a healthy environment, of civic engagement, and of the rights of defenders is uncertain. Effectiveness depends to a significant extent on whether the Inter-American system, and perhaps other sub-regional bodies, are willing to recognize the applicability of Escazú and are willing to enforce it. The expectations regarding the regional level are based on the difficulties of its implementation at the national level.  Moreover, some countries with the most extensive territorial jurisdiction over crucial ecosystems, such as in the Amazon Forest, do not intend to ratify Escazú, let alone integrating it into the jurisdiction of any regional or sub-regional court.  But even if they will ratify Escazú, the main problem is the lack of institutional capacity of member states, who are the main duty bearers regarding the implementation of Escazú. Even though Latin-American constitutions recognize the right to a healthy environment and Latin-American countries are the majority of the member states of the ILO 169 Convention, that protects indigenous people, in practice, they have been unable to enforce these norms and protect ecosystems, indigenous people and environmental defenders. The integration of Escazú into the Inter-American system also requires political will and concrete steps with multiple obstacles. The Interamerican Court of Human Rights (ICtHR)  Advisory Opinion (AO) 23/17 referred to the progress that Escazú represents for the protection of environmental rights and held that the right to a healthy environment protected by the San Salvador Protocol must be enforced, although only in connection to the Pact of San Jose. Yet in Indigenous Communities of the Lhaka Honhat Association (Our Land) v. Argentina, the ICtHR did not refer to Escazú. There is no certainty that the Organisation of American States (OAS) or other subregional organizations will take the initiative to integrate Escazú if most of the member states are reluctant to ratify it.

Does the Aarhus experience show a clear path?

 Aarhus has influenced both the Council of Europe’s (CoE) and the European Union’s (EU) approach to environmental protection. Aarhus also succeeded in getting member states to legislate on the three pillars of civic engagement in environmental matters, particularly since 2005 when the EU ratified Aarhus. However, both the CoE and the EU have been reluctant to support a direct effect of Aarhus, nor have they allowed active civic engagement, particularly from non-governmental organizations (NGOs). As a result, the right to a healthy environment has not been claimed or applied in an autonomous way, not even in climate change litigation. The ECtHR has protected environmental rights in connection to an immediate threat to a right protected by the ECHR. Furthermore, only individual claimants with a legitimate interest can trigger the ECtHR, including NGOs when their rights have been disregarded, but claimants still need to exhaust national remedies. NGOs have also actively supported complaints through third party interventions but without being a determining factor in the success of the claims. In 2020, a report pointed to initiatives of the Committee of Ministers to adopt an additional protocol to align the ECHR with Aarhus. This initiative was rejected to prevent the ECtHR from being overwhelmed by cases beyond the jurisdiction granted by the ECHR.

When the EU ratified Aarhus, it increased the expectations regarding civic engagement in environmental matters because a direct application by the EU institutions was expected. However, a 2019 report on EU compliance with Aarhus and the 2017 report of the Aarhus Convention Compliance Committee (ACCC) corroborated multiple bottlenecks in its application. The main concern is that the Lisbon Treaty stipulates that treaties ratified by the EU have primacy over EU secondary law, but the Aarhus Regulation (1367/2006) excluded direct actions against EU legislation lodged by NGOs. The Court of Justice of the EU (CJEU), shielded by the reiterated Plaumann-doctrine, has upheld this approach. Currently, EU institutions are discussing an amendment to the Aarhus Regulation to eliminate some bottlenecks to civil engagement. Nevertheless, NGOs have frequently activated preliminary rulings against national law implementing EU law and treaties ratified by the EU (including Aarhus) before national courts.

Common concerns

The path followed by Aarhus, in force since the beginning of the 21st century, shows that these conventions are certainly important to increase pressure on states to implement civic engagement as true environmental rights. Even if Latin American and many European constitutions guarantee civic engagement in environmental matters to protect the right to a healthy environment, and even if, as happened in the EU, regional organizations incorporate these conventions into their legal system, their direct application and extension of civic engagement boundaries are still a thorny path. Escazú’s achievement in terms of protection of defenders goes beyond European initiatives such as the Guidelines on Human Rights Defenders that mainly promote diplomatic action. However, as noted, multiple political, institutional and legal barriers dampen the celebration of the entry into force of Escazú.