ByAmael Notini Moreira Bahia andLucas Carlos Lima
On April 22, 2021, the Escazú Agreement entered into force. Inspired by the Aarhus Convention, in force since 2001, the Escazú Agreement represents a symbolic milestone for Latin America and the Caribbean with regard to environmental protection and environmental justice. It is a significant step forward in legal protection of the environment in the region, as it recognizes the relationship among environmental protection, human rights, the right to information, participation, and access to justice. There is still much to discuss about the Agreement, which has not received due attention in Brazil, as it awaits ratification.
Within the Brazilian context, the Escazú Agreement can have significant legal effects through its domestic implementation. First, it would add a new layer of protection that strengthens the current legal tools used by human rights defenders and groups involved in the protection of the environment at the national level. At the same time, Brazil’s ratification of the Escazú Agreement would compel it to abide by the compliance mechanisms provided by the treaty – for instance, by providing for the possibility for litigation, by other State parties, before the International Court of Justice.
This blog post examines the Escazu Agreement in the Brazilian context and particularly aims to: (i) demonstrate the main points of connection between human rights and the environment in the Escazú Agreement; and (ii) explore the hurdles for the absence of Brazilian participation in the Agreement and, consequently, its absence in participating in the development of international environmental law in Latin America. We will also explore the domestic implications of the lack of ratification.
Relationship between Human Rights and Environmental Protection
The Escazú Agreement consists of four core pillars (see here and here), namely: (i) access to environmental information; (ii) public participation in environmental decision-making processes; (iii) access to justice in environmental matters; and (iv) the protection of human rights defenders in environmental matters. The latter is one of the main elements that distinguishes it from its European counterpart (Aarhus Convention). The protection of environmental defenders seeks to ensure their safety, a critical measure given the high rate of murders, attacks and threats these defenders, their families and communities face throughout the region, especially considering the arising animosity towards these groups in the Brazilian political scenario.
The Escazú Agreement incorporates a number of principles of international environmental law, including the principles of prevention (art. 3, e), precaution (art. 3, f), and intergenerational equity (art. 3, g). The explicit recognition of the precautionary principle in an international treaty could contribute to the ongoing debate over the vexata quaestio of the principle’s status in international law. If some voices still do not recognize the binding character of the principle as part of general international law, the treaty seems to represent an important landmark on state practice in the Latin American context. Be that as it may, the inclusion of the precautionary principle in the Escazú Agreement follows the Inter-American Court of Human Rights (IACtHR)’s Advisory Opinion 23/2017 that recognized it as a component of the right to life and personal integrity.
The Escazú Agreement also enunciates important human rights precepts, such as the principle of equality and non-discrimination, the principle of non-regression and progressivity, and the pro persona principle, in a way that fosters the integration of human rights implementation with environmental protection. It does this, in part, by recognizing equality and the realization of human rights as the core elements of sustainable development. The presence of the pro persona principle is particularly relevant, as it consists of an interpretation principle that entails the adoption of the most favorable alternative for the protection of the rights enshrined in the treaty. It is a clear incorporation of an interpretative technique developed by the jurisprudence of the IACtHR in the context of an international covenant.
The Escazú Agreement’s text seems to go beyond the confines of international environmental law by bringing together environmental protection and the implementation of human rights within one text. In this way, the Escazú Agreement codifies regional practices that are being developed in Latin America and in the Caribbean, reinforcing the consolidation and application of human rights and environmental precepts at national, regional and international levels.
What about Brazil?
Although Brazil was an active participant during the negotiations of the Escazú Agreement, and despite the fact that it is a signatory to the Agreement, the Brazilian Executive has not yet sent the Agreement to Congress as per national requirements for ratification. It is not easy to know when (or whether) this will occur. First, the Executive needs to lift the suspension of the Agreement’s internalization process. Moreover, the current Executive Branch does not seem particularly inclined to embrace a greener agenda.
Brazil’s failure to ratify, however, does not mean that the Agreement has no impact or bearing on the country. According to Article 18 of the Vienna Convention on the Law of Treaties (ratified by Brazil through Decree 7030/2009) after signing the treaty, the state is obliged to refrain from the practice of acts that would frustrate its object and purpose. Thus, as a signatory to the Escazú Agreement, Brazil is still bound by that provision and must not commit acts that could undermine the object and purpose of the treaty, which are to guarantee procedural environmental rights. As a result, despite Brazil’s non-ratification of the Escazú Agreement, it may have a number of important effects and implications for the country, especially when it comes to access to information, public participation and access to justice[SA1] [LCL2] .
The treaty’s ratification process within the Brazilian domestic legal order faces significant debate and resistance. Setting aside the politics of the executive power and the lobby of the rural caucus, a question arises as to whether the treaty will be incorporated following the general procedure for treaties or whether the procedure for human-rights treaties will be pursued. Accordingly, the ratification process may occur based on a general procedure or by following the specific procedure for human-rights treaties. In the case of the general procedure, the treaty must be approved with the simple majority quorum, by both houses of the Brazilian Congress. As established by the jurisprudence of the Brazilian Supreme Court (STF), as the Escazú Agreement codifies human rights obligations, it could be considered, in the Brazilian hierarchy of laws, as “supra-legal”, i.e., superior to domestic legislation but under the prescriptions of the constitution. On the other hand, the specific procedure for human-rights treaties requires approval by both houses of the Brazilian Congress, with a quorum of 3/5 of its members. By following this specific procedure, the Escazú Agreement would be incorporated as integrated into Brazilian law as a Constitutional Amendment, thus receiving an even more privileged status in the Brazilian legal order.
Put differently, the interplay between the Escazú Agreement and Brazilian domestic legislation would inevitably lean towards the hierarchical superiority of the former, as all the specific contents of every human right that the treaty specifies shall prevail over ordinary legislation in the Brazilian legal order. Furthermore, it also means that essential values already recognized in Brazilian environmental law – such as transparency, participatory environmental management, and accountability – but that currently face some resistance and weakness, would be reinforced with the entry into force of the Escazú Agreement.
Be that as it may, in view of the crystal-clear core of safeguarding of human rights present in the Escazú Agreement, the recommended procedure seems the incorporation of the Agreement in the Brazilian legal system as a Constitutional Amendment, both to protect the importance of its content and to remedy the unjustified delay of Brazilian authorities.
The Escazú Agreement presents a new perspective for the protection of human rights and the environment in Latin America, which is clearly of the utmost importance to Brazil. However, given the omission of the current Executive Branch, the effects of this treaty on Brazil in the short term are likely be limited to the abstention of frustrating its objectives, as prescribed by the Vienna Convention on the Law of Treaties. Nevertheless, the Brazilian legal order possesses very promising mechanisms that could provide a privileged hierarchical status for the Escazú Agreement, thus improving its effectiveness in the Brazilian context. As such, the integration of the Escazú Agreement as a Constitutional Amendment would be a landmark achievement for the advancement of human rights and environmental matters in Brazil, and perhaps even for Latin America as a whole.
Amael Notini Moreira Bahia is a LLM student in Public International Law at UFMG. Researcher at the International Courts and Tribunals Research Group CNPq/UFMG.
Lucas Carlos Lima is a professor of International Public Law at UFMG. Coordinator of the Research Group on International Courts and Tribunals CNPq/UFMG. Director of ILA-Brazil.
[SA1]What about the fact that most these principles are part of HR law and also reflect customary IL?
[LCL2]We agree with this point, but decided not to explore the consequences on customary international law, which is also an open question for Brazilian “politique juridique exterieur”.