All hands-on deck: Is the Inter-American Human Rights System compatible with the Escazú agreement?

By Daniel Noroña

Throughout the globe, there are various examples of impunity and violence affecting those who protect biodiversity and the environment against industrial and development activities. There is no better example than the assassination of the 2016 Goldman’s Prize winner, Bertha Cáceres, from Honduras. Nonetheless, it was not until July 5th, 2021, that David Castillo, considered the intellectual mastermind behind her murder, was convicted by a national court. According to court records, the murder was ordered by the DESA company, which planned to eliminate any obstacle that interfered with the company’s dam over the Gualcarque river in the Lenca people’s territory.

Latin America is characterized by a hostile environment for environmental and human rights defenders (EHRD). In short, in Latin America, it looks as if the State always seems to go after environmental leaders and activists. From assassinations and attacks to legal harassment and forced displacement, EHRD have paid a high price for defending their right to a healthy environment and protecting their territories’ strategic ecosystems – forests, mountains, forests, lakes, rivers, and wetlands. In 2019, Latin America was deemed the most dangerous region in the world for EHRD by Global Witness. This trend that has not changed throughout the years.

The International Framework protecting EHRD

EHRD have limited legal mechanisms at their disposal to counter the aggression and coercion exercised against them. Given their position as environmental stewards, which elements of the right to a healthy environment would protect their activism? International environmental law has classified environment rights into two groups: (i) rights whose enjoyment is particularly vulnerable to environmental degradation, also identified as substantive rights (for example, the rights to life, personal integrity, health, or property), and (ii) rights whose exercise supports better environmental policymaking, also identified as procedural rights (such as the rights to freedom of expression and association, to information, to participate in decision-making processes, and to an effective remedy) (see John Knox’s mapping report and framework principles). These “access rights” were primarily codified in the 1992 Rio Declaration on Environment and Development. Principle 10 indicated the obligations under those rights and specified what each commitment stands for.

In this sense, the substantive right to a healthy environment comprises the legal interest protected by the activities of EHRD. The procedural rights, in turn, provide the mechanisms that the State guarantees to achieve their goals. However, the international legal framework has been insufficient given the general context described here. As such, the Escazú Agreement came as a response to this situation. Significantly, it recognized the role of EHRD. Accordingly, article 9 of the agreement mandates that:

Each Party shall guarantee a safe and enabling environment for persons, groups, and organizations that promote and defend human rights in environmental matters, so that they are able to act free from threat, restriction, and insecurity.

The agreement requests that States take the appropriate steps to secure the protection of EHRD in the duty they undertake and guarantee that those duties are fulfilled in a secure and safe environment. These primary duties vested upon the State fall in line with the obligations States already have under the Inter-American Human Rights System’s (IAHRS) legal framework (i.e., the American Declaration of Rights and Duties of Man, the American Convention on Human Rights and the Additional Protocol to the American Convention on Human Rights in the area of economic, social and cultural rights, also known as the Protocol of San Salvador). Under this framework, the bodies of the IAHRS (the Inter-American Commission of Human Rights – IACHR – and Inter-American Court of Human Rights – IACtHR) have indicated that States respect the rights of EHRD, prevent any attacks and diminish the risks they face, protect their rights, and secure, investigate, prosecute and sanction acts committed against them.

International Institutions and EHRD

Hence, the normative content that supports the protection and work of EHRD already exists. The question now rests on the effectiveness to appropriately protect their lives, integrity, and dignity. This is an opportunity for two international institutions to work together, to strengthen the process towards the democratization of environmental governance and to appropriately distribute the responsibilities amongst the population. Furthermore, it is crucial to consider that the IACHR and its Special Rapporteur on Economic, Social, Cultural and Environmental Rights have asserted that the Escazú Agreement reinforces principles and obligations established in inter-American legislation and jurisprudence on the right to a healthy environment, highlighting the need to guarantee “access rights” to ensure their validity, such as the adequate protection of the right for people to defend the environment.

Several questions remain on the enforcement of Escazú given the unique opportunity in which both regimes can interact. The overall number of attacks and murders of EHRD shows a high degree of impunity in most cases in the hemisphere. According to an investigation led by various Latin American digital media outlets, conclusive data on judicial decisions (either convictions or acquittals) was only received? in 296 cases (12% of cases) showing that the administration of justice owes an immense debt to EHRD. As a result, EHRDs seek relief in other forums, particularly international institutions. As such, it can be expected that the protection and monitoring mechanisms of the IACHR (such as the petitions processes, precautionary measures, thematic reports, or press releases), and the Committee to Support Implementation and Compliance (Escazú’s Committee) laid out in Art. 18 of the agreement will interact in various manners.  

Considering that there can be a conflict of petitions or multiple claims in different forums, it is first essential to understand that the nature of Escazú’s Committee is consultative and transparent, non-adversarial, non-judicial, and non-punitive, which only allows it to formulate recommendations. In this way, Escazú’s Committee will not conflict with the mechanisms that the IAHRS has at its disposal. However, a potential conflict could arise if a petition is referred to the IACHR but has a similar process under review in Escazú’s Committee. There are a couple of ways this could play out, as stated in the IACHR’s Rules of Procedure. First, article 33 states that a petition will not be considered by the IACHR if that same case has already been submitted to another international body. Nevertheless, the same article indicates that the IACHR can consider the petition if the nature of the other claim rests on general considerations of the human rights situation in the country, which will not bring a definitive solution on the merits of the case or does not lead to an effective resolution. However, it also states that the petition can be considered if the petitioner before the second body is acting independently from the person or persons who submitted the petition to the IACHR .

Hence, this rule applies when complaints that go through the petition mechanisms under the IAHRS and if the complaint before Escazú’s Committee will review the same rights and facts. This differentiation will be crucial. If the petition is accepted before the IAHRS, the case will eventually be heard before the IACtHR, since the IACHR and States are the only parties allowed to present cases before the IACtHR. Given the nature of Escazú’s Committee, it can be argued that there is no duplicity of international processes since the process in Escazú’s Committee is non-adversarial, and it only limits its scope to the rights secured by Escazú.  

Additionally, the provisional measures that the IACtHR can take under grave, urgent situations that can give way to irreparable harms are also taken under cases that are either under the jurisdiction of the IACtHR or if the IACHR requests it. However, this mechanism can only be applied to those countries that have ratified the American Convention; in all other cases, the IACHR can issue precautionary measures under the same criteria.    

These prima facie mechanisms respond to specific cases and situations that call for an immediate State response and can potentially reach the stages of the regional protection system. Therefore, the IAHRS and Escazú’s Committee can work together to bring to light situations of concern and urge States to take on actions that ensure transparency in decision-making processes; that decisions are made under inclusive and democratic parameters; and finally EHRDs have access to effective remedies and any threat directed towards them will be thoroughly investigated and those responsible appropriately sanctioned.

Final Assessment

Given that the Escazú’s Committee has yet to begin to work more institutional tools can be developed to supervise the compliance of States with their international obligations. They can even analyze how different stakeholders have a role in this issue, especially when most related situations involve business and industrial activities.

Finally, it will be essential to see how the Escazú’s Committee will interact with the IAHRS and the national governments to develop monitoring tools and other aspects that are related to the mandate of the IACHR and the agreement, such as issues about capacity building, promotion of human rights and human rights and environmental education. Mainly, the language of the Escazú Agreement and the complex institutions that have been developed for the IAHRS can become an opportunity to formulate mechanisms to promptly respond to emergencies as they occur, to ensure that any offense, intimidation, or act of aggression (by the State, private entities or third parties), will not be met with impunity. This is a call to action for states to ramp up their processes and for international organizations to look for creative solutions to fulfill their respective mandates. We will need all hands on deck to ensure that no more defenders die from defending their territories, nature, and land.