By Gastón Medici-Colombo
The Escazú Agreement (EA) paid off a long-lasting debt of environmental governance in Latin America and the Caribbean (LAC). While Aarhus developed Rio’s Principle 10 for the European region (and beyond), no such effort had been carried out in LAC. Consequently, the recognition and implementation of environmental access rights depended on national efforts and were usually incomplete and/or ineffective. Eventually, this situation gave rise to the intervention of the Inter-American System of Human Rights (IASHR). This intervention is not surprising given the well-established notion that (environmental) access rights are indeed human rights. The Inter-American Commission (IACHR) and Court (IACtHR) started to define a range of minimum standards to guarantee the effective implementation of these rights. Paradigmatic examples are the IACtHR case law on the right to access to environmental information, on the participation of Indigenous Peoples in environmental decision-making processes or the IACHR guidelines on the protection of human rights defenders.
Therefore, in most LAC countries the implementation of the EA will not occur in a vacuum, but it will interact significantly with the human rights standards and institutions developed within the IASHR. A process of feedback and synergy between regimes is expected to develop as one of the main features of environmental democracy in LAC region. This process will involve not only supranational bodies under the scope of both regimes but also domestic authorities and especially courts in their interpretation of the interplay between the text of the newborn agreement and the American Convention on Human Rights (ACHR).
A rich synergy
As a matter of fact, interactions between EA and the IASHR had already been occurring even before the adoption of the former. On the one hand, the EA negotiation process benefited greatly from the work of IASHR’s institutions, e.g., from the Model Inter-American Law on Access to Information. On the other hand, the IACtHR in its Advisory Opinion 23/17 expressly recalled and welcomed EA negotiations (par. 218). A timely mention that was, in turn, used in the last negotiation meeting of the EA to strengthen the stance of those who supported a legally binding instrument.
The synergy between regimes will go beyond the negotiations to be a significant feature of the EA implementation. In this new stage, a two-fold interaction with relevant effects for the development of environmental rights in the region is foreseen.
IAHRS impact on EA implementation
The IAHRS normative framework will “escort” EA implementation given its pre-eminence in domestic legal orders. This relates to how the ACHR affects States’ behavior and how the conventionality control doctrine works. To put it simply, all State authorities (regardless of the branch —executive, legislative, or judicial—) must apply and respect in good faith the ACHR in the performance of their duties as they must do with their national constitutions. Domestic judiciaries (and not only the IACtHR) must guarantee that compliance (when a case is before them) by applying a control of conventionality over the behavior of States (diffuse conventionality control). In developing this task, courts must take into account not only the plain text of the ACHR but the entire “Interamerican corpus iuris” (conventional block). This notably includes the IACtHR’s interpretations of the ACHR deployed in contentious judgment or even in advisory opinions and regardless of the involvement of the specific State in a given case, since these interpretations cause a similar effect to that of stare decisis.
As mentioned, in its interpretative task, IAHRS institutions have developed a range of standards intended to guarantee an effective implementation of access rights. These standards must be considered, as explained before, by national administrative, legislative, and judicial authorities in the performance of their tasks and, of course, in their implementation of the EA, if they do not want to incur international responsibility due to a violation of the ACHR.
Let us consider a prominent example. The IACtHR developed some relevant standards regarding access to information after recognizing that this right is contained in article 13 ACHR on freedom of thought and expression. In Claude Reyes y otros v. Chile, a case specifically about environmental information, the IACtHR highlighted that the principle of maximum disclosure is the backbone in this matter. The principle encapsulates a presumption that all public information is accessible, and should only be refused through the application of a restricted exceptions regime. Not every exception is valid under this principle. Exceptions must: (i) be legally established in advance; (ii) respond to an allowed objective of the ACHR; and (iii) be necessary for a democratic society. This means, according to the IACtHR, that any nationally determined exception to this right shall: be based on the common good; be strictly necessary for the respect of rights or reputation of others, or the protection of national security, the public order, health, or morality (article 13.2 ACHR); and be proportional regarding the interests it aims to protect. EA adopts the principle of maximum disclosure in Article 3. Article 5 EA reiterates some of the standards developed by the IACtHR in relation to principle of maximum disclosure. The IACtHR’s standards, however, present a more restrictive (or —at least— more detailed) approach about what a valid exception may look like. Thus, when implementing the EA’s Article 5, national authorities must pay attention not only to the EA text but also to the relevant standards developed by the IACtHR. This may seem to be petty, but it is not.
A recent court case in Argentina offers an early demonstration of the relevance of this interaction. An environmental non-governmental organization (NGO) asked the national energy corporation (YPF S.A.) for information about the fracking deployment in Vaca Muerta, one of the biggest shale gas and oil reserves in the world. The company refused to deliver the requested information alleging that Law 27.275 on the right to access to public information excludes all the information belonging to public traded companies (Article 8.m). Consequently, the NGO challenged the refusal in court. In the judicial proceedings, both the first instance judge and the Court of Appeals rejected YPF’s refusal. Notably, the Court of Appeals in its August 2021 judgment referred expressly and complementarily to the standards defined by the IACtHR in “Claude Reyes y otros v. Chile” regarding the allowed exceptions and to the EA, specifically Article 2.b on the definition of “competent authority”, noting that both regimes have a supra-legal hierarchy.
It is not clear if the EA alone would have delivered the same result in granting access to the environmental information. In any case, the human rights standards developed by the IACtHR appear poised to offer significant guidance on the scope and implementation of access rights by domestic authorities, especially in those areas where the EA’s text fell short due to governments’ hesitancy in the negotiations. Furthermore, as the connection with human rights law is expressly recognized in the EA text (e.g., article 5.7), the EA Committee to Support Implementation and Compliance (or the Conference of Parties) could be attentive to human rights standards developed within the IAHRS when analyzing Parties’ compliance.
EA impact on the IAHRS normative framework
Developments within the scope of the EA (e.g., from the work of the Committee to Support Implementation and Compliance) will arguably inform the interpretation of human rights standards by the IAHRS bodies. This approach would follow the practice by which IAHRS bodies usually integrate their interpretation of the ACHR with relevant rules and norms deployed in the region or even beyond. If, for example, the Committee develops good practices regarding access to justice, such good practices may end up being part of the inputs utilized by the IAHRS bodies, even maybe in an authoritative interpretation of the ACHR. Once the IACtHR adopts such new standards, they will affect (as explained ut supra) all ACHR Parties, including notably those reluctant to adopt the EA. In this sense, the developments under the EA institutional regime could be incorporated into the “Interamerican corpus iuris” with all the effects that this implies. This is, arguably, a reason for the adoption of the EA in those States that are (mostly unreasonably) still skeptical. Being Parties to the EA allows them to actively participate in the design and development of good practices and standards that may end up obliging them anyway. In this sense, those EA outsiders may face rising stress even before the IASHR.
This blog post argues that a synergistic mechanism with the capacity of raising (but not reducing) the standards of environmental democracy will arise and develop between the EA and IASHR regimes. This synergy is two-fold: not only could the IASHR impact EA implementation, but the development of EA could also impact the IASHR normative framework, affecting even those States that are skeptical towards the adoption of the EA. Furthermore, as the case law on access to information in Argentina demonstrates, this synergy is already in action. Scholars, practitioners, and domestic authorities should be fully aware of the development of these rich interactions when discussing, demanding, or carrying out the implementation of the newborn Agreement.