The Escazú Agreement and the Caribbean Region

by Bianca Simons and Lisa Benjamin

Recently, Latin American and Caribbean nations came together to adopt the Escazú Agreement, an environmental treaty that connects human rights, and values of transparency and inclusion to empower its constituents. This agreement seeks to increase access to information, advance public participation, and ensure environmental justice. It is also the first regional agreement that includes specific rights of environmental human rights defenders. Several Caribbean countries have ratified the Agreement, including Antigua and Barbuda, Dominica, Dominican Republic, Grenada, Guyana, Haiti, Jamaica, St. Vincent and the Grenadines and St. Kitts and Nevis. Nonetheless, not all Caribbean countries participated in the negotiations, and several countries such as Barbados and The Bahamas did not sign the Agreement.

This blog post looks at some common problems around implementation across two Caribbean countries – Jamaica and The Bahamas – relating to transparency and access to information in the environmental realm. Jamaica is a large country with a relatively mature structure of centralized environmental laws, and an existing transparency regime. Jamaica was heavily involved in the negotiations around Escazú and has already ratified it. The Bahamas, on the other hand, is a much smaller country with a less mature and comprehensive environmental regulatory framework, and a very new domestic transparency regime. The Bahamas has not yet ratified the Agreement. However, it is in the process of implementing a domestic Freedom of Information Act. These two countries exemplify some of the capacity constraints within the Caribbean region, even within a country that has a mature regulatory framework such as Jamaica.

Some commonalities in the Caribbean region

Many English-speaking Caribbean countries are former colonies of England, and as part of their independence exercise, they enacted written constitutions. Many of these constitutions predate the environmental rights movement in the 1970s, and do not include environmental provisions. The vast majority of these constitutions have also not been updated since their original enactment. Many Caribbean countries are both highly indebted and highly dependent on foreign direct investment, predominantly in tourism. This means that development pertaining to the hotel and cruise industry often trumps environmental needs domestically, despite environmental legislation which requires environmental impact statements in both Jamaica and The Bahamas.

The political economy of the environment in Caribbean countries means that development on the coast is highly prized and contributes to national development. Environmental protection, therefore, often takes a backseat to the promotion of foreign direct investment. For example, in The Bahamas, environmental impact assessments did not have to be released publicly until the EIA regulations were passed in 2020. This stifled public and judicial efforts to require public participation or even developer accountability to promised environmental remediation or conservation efforts included in the EIA documents. This prior gap frustrated the public’s ability to engage in environmental decision-making and weakened environmental democracy in the country.

The Escazú Agreement could immensely strengthen environmental transparency and accountability of developers in Caribbean countries. The Agreement’s six pillars are aimed at entrenching environmental democracy in signatory countries. For example, the Agreement calls on parties to ensure the public’s right to participate in environmental decision-making. It emphasizes early involvement of the public, including access to environmental information which is critical to ensure appropriate and informed public participation. The Agreement adapts Principle 10 of the 1992 Rio Declaration to regional circumstances, providing for flexibility while adhering to international norms.

Domestic transparency frameworks

Although it has a long history of Parliamentary democracy, governance in Jamaica is often considered to be shrouded in secrecy, making the public shy away from politics. The passage of the Freedom of Information Act, however, sought to change that. In collaboration with NGOs, the Jamaican government adopted this comprehensive legislation in 2002 to make information publicly available to its constituents. Since first introducing the FOIA, parliamentary members and activists alike have made continuous revisions to better enact transparency. This includes the introduction of the automatic application in 2005, along with the addition of an Appeal Tribunal. Through detailed requests, Jamaican residents can request information from a multitude of government agencies, including the Ministry of the Environment.

The Freedom of Information Act in The Bahamas was passed in 2017 but was not fully enacted for several years. This Act was similarly a product of NGO and civil society pressure, but its implementation was characterized by delay and obfuscation by successive governments. Based on other Commonwealth models, it provides for a right for residents to request information from government agencies, although there are a number of exemptions such as national security, cabinet deliberations, public health, and national economic interests. These exemptions are similar to other regional FOIA Acts. The Committee responsible for developing the Act assessed legislation in other Commonwealth countries, including Caribbean countries such as Jamaica, Trinidad & Tobago and the Cayman Islands. Therefore, this legislation mirrors parallel trends in other countries.

Common constraints in implementation

With FOIA agreements, however, come several challenges, the main challenge being their implementation. For the ideals of these laws to come to life, the Governments in Caribbean countries must be invested in their success. These laws also impose domestic constraints and administrative burdens on Governments. Caribbean countries have significant capacity constraints, including low levels of human resources and weak institutions. The region suffers acutely from data management constraints. There is limited availability of structured, machine-readable data that is easily accessible. Combined, these constraints contribute to lack of implementation and enforcement of FOIA legislation. These paradoxical incentives of transparency but also administrative and financial constraints could lead to lack of implementation within Caribbean countries due to benign or purposeful neglect by governments (Benjamin, 2017).

To address these challenges, Caribbean governments should commit to investments in transparency and in Government agencies responsible for implementation of the Escazú Agreement, and their domestic transparency arrangements. By aligning themselves with this legislation, constituents of the Caribbean can finally have a seat at the table when it comes to conversations on environmentalism and true environmental democracy in their regions. The Escazú agreement, however, fails to be properly implemented due to many constraints. This includes a lack of both regional training and collaboration. There are some regional models that might be useful to replicate. For example, the Cayman Island FOIA regime was characterized by a phased implementation process which provided for extensive training and implementation of a robust data management system. This, in turn, led to high levels of responsiveness from the Information Commissioner, engendering public trust in the regime.

Conclusion

Implementation of the Escazú Agreement as well as domestic transparency arrangements requires financial contributions and investments in human resources. Such contributions would not only increase the affordability of FOIA requests but could also provide for an elaborate public education campaign concerning these opportunities, building much needed trust in the public around transparency and governance domestically. Such investments would have broader governance benefits beyond environmental democracy and would benefit environmental decision-making. An example is the IDB loan to The Bahamas for Government Digital Transformation to Strengthen Competitiveness. While this is a worthwhile initiative, given the already high indebtedness of Caribbean countries, which has been compounded by the COVID-19 pandemic, more international financial assistance beyond loans will be required for proper implementation of environmental governance initiatives such as the Escazú Agreement.