Colombia’s reluctance to ratify the Escazú Agreement leaves environmental and human rights defenders unprotected

by Natalia Urzola

For many years, Colombia has praised itself as an environmentally friendly country: ranging from a vast number of environment-related laws and groundbreaking fundamental and constitutional rights aiming to protect the environment (see art. 79 and 80 of the Colombian Constitution), to progressive judicial decisions (see Atrato River and Future Generations) and special environmental protection procedures (see tutela and acciones populares), the country could be considered environmentally conscious. Moreover, Colombia has two long-standing systems regarding environmental and human rights defenders (EHRD): the National Protection Unit (NPU), which provides protection schemes to EHRD, and the Early Warning System (EWS), built to guarantee rapid responses through the National Ombudsman’s Office located throughout the country, along with other more recent mechanisms which includes the National Commission of Security Guarantees, a body that designs and implements the national public and criminal policies regarding EHRD’s killings. However, the country is also (in)famous for being one of the deadliest places for EHRD. According to the latest Global Witness report (2020), Colombia experienced 64 killings in 2019 alone -more than anywhere else in the world-, and an appalling 30% of all the killings reported globally. In 2020, of the 331 reported killings worldwide examined in a recent Front Line Defenders report, it is estimated that 177 occurred in Colombia. Violence continues to rise, despite the peacebuilding process that started in 2016 with the Peace Accords signed with the oldest guerrilla group in the country, FARC-EP. Hence, this blog post asks: could the Escazú Agreement contribute to strengthening environmental democracy and protecting EHRD in Colombia?

Colombia’s legal framework fails to protect EHRD’s work

Colombia’s legal framework has proven insufficient to protect EHRD. The NPU and the EWS have been relevant in advancing some protection of EHRD, but this protection has fallen short. The continued rise in killings and threats EHRD have experienced shows the inadequacy of the existing legal framework. Indepaz, a non-governmental organization that works on peace and development-related issues, recently reported that approximately 71% of EHRD victims of threats are peasants, Indigenous, Afro-descendants and members of environmental organizations. Furthermore, the novel coronavirus worsened EHRD’s situation, when lockdown measures made it difficult for them to seek protection and safely relocate.

As highlighted by a recent Human Rights Watch report, the NPU provides individual and collective protection schemes in response to reported threats, leaving unprotected those who are not able to report to the corresponding authorities either due to their remote location or because of the threat in and of itself. Similarly, not all EHRD receive threats, therefore they remain unable to access the protection provided by this particular system. Moreover, NPU’s budget is limited, which further adds to the poor implementation of this system in Colombia. As per the EWS, the HRW report found that although designed to provide rapid responses to possible potential abuses, the authorities charged with actually acting on preventing those abuses often fail to do so, or do it in an insubstantial way.

Finally, other mechanisms in place have only been superficially promoted with serious shortcomings: (i) proliferation and diffusion of resources, (ii) slow implementation and (iii) lack of clarity regarding available procedures, to name a few. Government’s failure to periodically convene the National Commission of Security Guarantees (designed to create policies to dismantle armed groups that target EHRD) and the high impunity levels surrounding criminal procedures of these killings are just two examples of the inadequacy of the existing legal framework in protecting EHRD’s work. Furthermore, Colombia’s government has used the existence of these mechanisms as an argument to support their negative attitude towards the Escazú Agreement. Despite having initially signed the Agreement, Colombia has not fulfilled the ratification process and does not seem to be willing to do it anytime soon. The last legislative period ended without a decision to ratify it and at the time this post was written, the draft had not been submitted for new discussion. Moreover, along with members of the Colombian Congress, the government claims that the country’s legal framework is robust enough to protect EHRD and the environment, and that ratifying this Agreement is only redundant. However, reality shows us otherwise.

The Escazú Agreement as an avenue to protect EHRD’s work

The Escazú Agreement is groundbreaking. As an endorsement of Principle 10 of the Rio Declaration, the Agreement aims at applying three main pillars: information, participation and justice (López-Cubillos et al., 2021). It also aims at strengthening environmental democracy by fostering cooperation and capacity-building. More importantly, it mandates the protection of environmental defenders. Article 9 of the Agreement sets forth three directives to ensure EHRD’s protection. The first mandate invites States to guarantee a safe and enabling environment so EHRD can act free from threats and insecurity. The second asks States to take adequate and effective measures to recognize, promote and protect EHRD’s rights, including access rights. The third encourages States to take appropriate, effective and timely measures to prevent and punish attacks, threats and intimidations of EHRD.

Being the first legally binding instrument that targets the protection of EHRD, the Escazú Agreement could go a long way. By providing a clear framework of what is needed to ensure EHRD’s protection and giving legitimacy to the work they do, it could pave the way for States to implement truly effective mechanisms. In tandem with article 10 and the overarching cooperation principle, national and international legal support can play a key role in protecting EHRD by providing resources, knowledge and overall assistance (López-Cubillos et al., 2021). Thus, the Escazú Agreement not only provides recognition and content to EHRD’s rights, but also mechanisms for regional cooperation.

Protecting EHRD in Colombia: a matter of quality, not quantity            

Colombia already has a significant number of laws aiming to protect EHRD. But all have proven insufficient. National protocols and frameworks have failed to protect the lives and work of EHRD (López-Cubillos et al., 2021). Ratification of the Escazú Agreement will offer the support countries like Colombia need to make the necessary legal reforms to truly protect EHRD. The Agreement is based on the cooperation principle, as well as that of permanent sovereignty over natural resources (art. 3). It is not meant to interfere in the country’s sovereignty, rather to promote information exchange in order to build capacity among the region. More importantly, it recognizes -in a legally binding instrument- EHRD’s work as vital for environmental democracy. Colombian Constitution does not explicitly include a right to defend human rights, which could strengthen EHRD’s protection while acknowledging their crucial role in protecting the rule of law. Ratifying the Escazú Agreement could help achieve that by strengthening judicial and investigative capacities through mechanisms such as administrative appeals and challenges to decisions involving information, participation and decision-making in environmental matters, mechanisms to execute and enforce judicial decisions, measures to minimize barriers to exercise the right of access to justice, means to publicize and disseminate the process for accessing justice, as well as judicial and administrative decisions, and establishing support mechanisms for groups in vulnerable situation, such as EHRD (art. 8). Likewise, it will allow EHRD to participate meaningfully in decision-making processes (López-Cubillos et al., 2021). Sadly, that does not seem to be happening anytime soon, since the ordinary legislative period ended last June and no decision was made, leaving the country’s EHRD further u