By Emily Barrit
In responding to the call of Principle 10 of the 1992 Rio Declaration, two regional environmental agreements have emerged. The first, the Aarhus Convention (‘the Convention’), negotiated under the auspices of the UN Economic Commission for Europe, entered into force on 30 October 2001. The second, the Escazú Agreement (‘the Agreement’) was developed in and for Latin American and the Caribbean and entered into force more recently, on 22 April 2021. Unsurprisingly, given their shared origins in Principle 10, the two agreements exhibit a number of similarities. Each establishes a trio of procedural environmental rights – access to environmental information, public participation and access to justice in environmental matters. Through these rights, each agreement establishes the conditions for citizens to contribute to the protection of the environment. Additionally, both ensure that environmental non-governmental organisations (NGOs) can access procedural rights to further environmental protection goals, and both empower the public to access an independent compliance mechanism. However, the differences in legal culture and socio-political context, as well as the different historical moment in which each were conceived and drafted, means that the two elaborations of Principle 10 are quite different. These differences draw attention to the evolution of legal ideas and the importance of regional expression of global concepts.
A new kind of environmental agreement
When the Aarhus Convention entered into force it was endorsed as a ‘new kind of environmental agreement’ because it was the first environmental law treaty to provide citizens with rights that were directly enforceable as against the relevant Contracting Parties. Thus, the Aarhus Convention was both a human rights instrument and an environmental agreement. However, the Convention continues to hold its human rights status at arm’s length – not fully realising the right to a healthy environment, simply gesturing towards its existence somewhere outside of the text. By contrast, the Escazú Agreement is more explicitly a human rights agreement. It is unabashed in its acknowledgement of the substantive right to a healthy environment; it recognises the importance of social context in making its procedural rights usable and makes provision for special protection for environmental rights defenders. Indeed, before negotiations officially began Latin America was already emerging as a world leader in the promotion and protection of environmental rights. As a result, the Escazú Agreement presents an even more visionary approach to Principle 10 whilst building on the foundations of the Aarhus Convention. In what follows, the distinctive vision of Principle 10 that is elaborated in the Escazú Agreement will be discussed.
A distinctive approach to Principle 10
For a start the visual presentation of the text and linguistic approach to the Escazú Agreement means that it is drafted in a far more accessible manner than the cramped typewriter script and highly technical legal language of the Aarhus Convention. Visual presentation can and does improve the accessibility of written materials and the efforts made in the presentation of the Escazú Agreement, for example using a sans serif font, are important in making it accessible. Similarly, the choice of language in Escazú lends authority to its commitment in Article 4(5) to ensuring that members of the public can meaningfully access the rights promoted in the Agreement. To illustrate this, contrast how the access to justice right is introduced in each treaty. Article 8 of the Escazú Agreement opens with a simple statement that each Party is to ‘guarantee the right of access to justice in environmental matters’. Whereas the companion provision in Aarhus – Article 9 – fails to state this aim simply. Access to justice is, of course, the implication of the Article, but it is not made explicit. As a result, the Escazú Agreement is far more accessible to a lay reader.
Secondly, the Escazú Agreement is also better attuned to the conditions that are necessary for the procedural rights to be fully accessible and usable. For example, the drafters of the Agreement recognised that not all people have the capacity to access information without a special effort from the keepers of that information. Numerous factors can make meaningfully accessing information difficult – illiteracy, language barriers, unfamiliarity with bureaucratic processes, lack of access to technical expertise and a lack of time given the other commitments of daily life (work, childcare, looking after the home). These social facts are acknowledged in the Escazú Agreement. Articles 5(3) and (4) impose a duty on Parties to the Agreement to ensure that people or groups in ‘vulnerable situations’ have assistance in accessing information, both in terms of formulating requests for that information, and also in interpreting and using the information once received. Whilst Article 3(3) of the Aarhus Convention recognizes the need to promote environmental education and Article 3(4) recognizes the need to support organizations that promote environmental protection, there is no recognition of the specific difficulties faced by those unfamiliar with bureaucracy, reflecting some of the social and cultural assumptions imbedded in the Convention.
There is also deep recognition throughout the Agreement of the need to address inequalities – through the commitment to actively including Indigenous communities, repeat references to those in vulnerable situations and a commitment to ensuring equal conditions. Therefore, rather than focusing on just facilitating citizen engagement in a technical sense (as the Aarhus Convention does), the Escazú Agreement takes account of the social conditions necessary to enable meaningful participation and engagement with environmental information. For example, Articles 4(5), 5(3) and 6(6) all acknowledge the specific needs of those in vulnerable situations and Article 7(14) requires that vulnerable groups are identified and given support to engage with participatory processes. Specific attention is also paid to the needs of Indigenous communities. Article 7(9) provides that decisions resulting from an environmental impact assessment should be carried out through appropriate means, which includes ‘customary methods’, and Article 8(4)(d) recognizes the need for materials to be produced in non-official languages. Access to information as envisaged by the Escazú Agreement is not just about making environmental information accessible, it is also about making it usable.
Thirdly, Escazú appears to be less deferential to the interests of corporate actors than the Aarhus Convention. For example, Article 4(4)(d) and (e) of Aarhus provide exceptions to information disclosure in order to protect commercial secrets and intellectual property. Also, the discretion granted to Contracting Parties in determining a relevant ‘public authority’ has allowed the UK to exempt private water and sewage companies, which may nevertheless provide a public service, from disclosure requirements. It is therefore possible to see that the commitment to open access in Aarhus is tempered by a deference to commercial interests, which limits the social justice potential of the Convention. Escazú meets this challenge in a number of ways. First, there is no special protection of commercial secrets and intellectual property in relation to access to information. In the Escazú Agreement the only valid reasons for failing to supply environmental information relate to risks to the environment, life, health and safety of individuals, national security, and crime – a far more limited set of exceptions. This is significant because it means that commercial interests are not prioritized over environmental and social needs, as they can be in Aarhus. Further, Article 6(12) of the Escazú Agreement contains a requirement that Parties ‘take the necessary measures through legal or administrative frameworks… to promote access to information in the possession of private entities’. No such commitment is included in the Aarhus Convention. Indeed, during the negotiations of the Convention’s 2009-2016 strategic plan, the European Union blocked a proposal by Norway to grant the public access to information held by private actors.
Fourthly, Escazú takes an entirely different approach to the notion of substantive environmental rights to Aarhus. In Article 1, Aarhus carefully constructs a distance between the procedural rights it guarantees and the substantive right to which it aspires. Thus, although procedural rights are deemed to contribute to a substantive right, no such substantive right is guaranteed. By contrast, the Escazú Agreement explicitly recognizes the existence of a substantive right. Article 4(2) states that ‘each party shall guarantee the right of every person to live in a healthy environment’. This commitment also appears in the preamble and introductory statements. In a region where several states already guarantee progressive environmental rights, the approach of Aarhus to substantive environmental rights would be out of step with the legal and cultural context of the region. For example, both the Dominican Republic and Jamaica incorporate a right to a healthy environment into their constitutions and Bolivia and Ecuador go further by providing constitutional recognition of the rights of Mother Nature/Pachamama herself.
Fifthly, Escazú does not shy away from its status as a human rights instrument. The human rights qualities of the Aarhus Convention is implied in its guarantee of vertical rights between states and their publics (rather than just horizontally between states as is usual in environmental agreement) but this status is not expressly acknowledged. In the Preface to the Escazú Agreement, on the other hand, Alicia Bárcena claims the status of human rights treaty for Escazú, making explicit the mixed human rights/environmental nature of the Agreement. Going further, the Escazú Agreement also offers specific protection to environmental human rights defenders in Article 9. This is significant, because the Agreement recognizes that procedural rights are not enough if the social-political context makes it difficult for those rights to be exercised. That may be because the information is difficult to access, understand and interpret, or because those who seek to access and act on environmental information face extraordinary threats of violence.
In these important ways, Escazú demonstrates the necessity of regionally negotiated interpretations of even seemingly universal values of Principle 10 of the Rio Declaration.
The differences between the Escazú Agreement and the Aarhus Convention discussed here demonstrate the expressive potential of Principle 10 and its attendant values. Thus, it shows how values can find transnational expression – reflecting the socio-political, cultural and legal priorities of different regions, whilst allowing them to share in the moral authority of these global norms. Faced with the profound complexities of making just environmental decision-making in local, national and global contexts, expansive normative ambitions must be balanced with appropriate regional elaborations.
This text has been adapted from ‘Global values, transnational express: from Aarhus to Escazú’ in Veerle Heyvaert and Leslie-Anne Duvic-Paloi (eds), Research Handbook on Transnational Environmental Law (Edward Elgar 2020)