THE GNHRE IMPLEMENTING PRINCIPLES FOR THE ESCAZÚ AGREEMENT
The Global Network for Human Rights and the Environment (GNHRE) salutes the entry into force of the Regional Agreement on Access to Information, Public Participation, and Justice in Environmental Matters in Latin America and the Caribbean (Escazú Agreement). This instrument is a benchmark achievement in the struggle of thousands of communities and people who have been severely impacted by environmental degradation throughout the region and the many people who are accessing information, participating, and accessing justice to address the triple climate change, biodiversity loss and pollution crises. GNHRE commends the regional adoption of the right to a healthy environment and related access rights, which serves as a critical method of protecting the environmental and human resources of the region as well as entrenching the human right to a healthy environment recognized at the international level.
The GNHRE strongly encourages States to guarantee the right to a healthy environment in order to fulfill the content of environmental access rights and provide the conditions for the free exercise of the right to protect the environment. As such, cooperation and implementation are the foundation of the pillars in the Escazú Agreement (access to information, public participation, and justice in environmental matters).
We therefore reaffirm that States in the region are bound by international and Inter-American human rights law, as noted by the Inter-American Commission on Human Rights (IACHR) and the United Nations Office of the High Commissioner of Human Rights (OHCHR). Specifically, the IACHR has pointed out that the Escazú Agreement reinforces principles and obligations on the right to a healthy environment established in Inter-American legislation and jurisprudence. These organizations have further highlighted the need to guarantee access rights in connection with the effective protection of the right to defend the environment.
Despite the advances represented by the Escazú Agreement, it is with great concern that we are still bearing witness to consistent attacks against environmental defenders throughout the region. This pattern compounds the continued vulnerability of those who pursue environmental activism as a way of life and weakens the already fragile social fabric of communities in the region, especially Indigenous Peoples, and local communities. Unless all States in the region ratify and adhere to this treaty, the effectiveness and enforcement capacities it undertakes will be severely hindered. Conversely, the Escazú Agreement’s positive social-ecological will be further catalyzed if all Latin American and Caribbean countries become part of this regional agreement.
As an international forum seeking to further the linkages between human rights and environmental protection and with strong roots in the Region, the GNHRE offers these IMPLEMENTING PRINCIPLES FOR THE ESCAZU AGREEMENT to guide states, state parties, and non-state actors including communities, civil society organizations, businesses, and individuals as they seek to fulfill the promises of the Escazú Agreement.
General Implementing Principles
- The Escazú Agreement must be applied in the manner most consistent with human dignity, the rule of law, and human rights and environmental protection. Specifically, Art. 3(a) of the agreement will drive the application of the provisions of the instrument. In this sense, the agreement shall be considered as the minimum requirements to protect these rights.
- The provisions of the Escazu Agreement will be interpreted in the most favorable way that is more conducive to the enforcement of rights and in light with international human rights law pertaining to the provisions of Art. 3 and 4 of the Agreement. As such, for the comprehensive implementation of the Agreement, public officials, national authorities and other decision-makers must consider procedural principles and norms that arise from international and interamerican human rights law and govern access rights in the decision-making process. In this sense, Parties to the Agreement who are also Parties to the American Convention on Human Rights (American Convention), International Covenant on Economic, Social and Cultural Rights (ICESCR), Convention on the Rights of the Child (CRC) and the Convention on the Rights of Persons with Disabilities (CRPD), the Paris Agreement must take into account Art. 29 of the American Convention, Article 2(1) of the ICESCR, Article 4 of the CRC and Article 4(2) of the CRPD and Article 4 of the Paris Agreement in line with the principle of non-regression and of progressive realization in the aforementioned articles of the Agreement.
- For the full and effective implementation of the Escazú Agreement, State Parties should consider national circumstances and specific situations in which the Agreement applies considering the dispositions of Art. 4(3). However, these considerations should not hinder the effectiveness of the Agreement or be used to the detriment of the protection of the rights covered by the Agreement or other obligations arising from international and regional human rights instruments and multilateral environmental agreements.
- For the full and effective implementation of the Escazú Agreement it is key to recognize the interrelationship and interdependence among all the pillars of the Agreement. There is no meaningful participation without an informed public, no effective access to justice without access to reliable information and no access to information or participation without the judicial mechanisms to guarantee it appropriately. Consequently, every action must focus its efforts on the rights of those groups who have been historically discriminated against or in a situation of vulnerability.
- Implementing the principle of equality and non-discrimination, and the principle of intergenerational equality in Article 3 of the Escazú Agreement involves gender equality and gender responsive action considering the particular situation of women and girls in situation of historical discrimination and vulnerability but also their key role as agents of change, leaders, managers and environmental defenders who should have equal opportunities to access information, participate meaningfully and access justice in environmental matters.
Right to a Healthy Environment:
- The right to a healthy environment is the central to the Escazú Agreement. States recognizing this right expressly in their legal framework and those that have internationally agreed to it as an obligation must take into account the procedural and substantive obligations that support this right when implementing the Agreement.
- State Parties should consider that the right to a healthy environment not only implies the protection of nature and ecosystems as an interest to humanity but calls for the protection of all the elements in the biosphere as legal interests in themselves, even in the absence of the certainty or evidence of a risk to individuals. As such, actions towards the implementation of the Escazú Agreement should not result in further environmental degradation.
Access to Environmental Information:
- Both State Parties and non-State actors should provide all pertinent environmental information to avoid and mitigate any environmental degradation, disaster or health risks, as well as threats to environmental defenders noting the provisions of Art. 6(5) of the Agreement. However, the State has the primary responsibility in ensuring that this information is widely available to the public through means that will guarantee the amplest access to all people.
- State Parties should apply international human rights standards when defining the domestic legal regime of exceptions to access to environmental information, and any withholding of information has to be widely justified by the State Party following the test set forth in Art. 5(7) and (9) of the Agreement. Specifically, any refusal to disclose should state that the denial of information will: i) pursue one of the legitimate objectives that justify them; ii) demonstrate that the disclosure of information effectively threatens to cause substantial harm to that legitimate objective; and iii) demonstrate that the harm to the objective outweighs the public’s interest in having the information.
Right to Public Participation:
- Public participation is central to the development of any policy decision that can have an impact on the environment. In this sense, States Parties should guarantee an overarching process of environmental participation in the decision-making processes through their policies and legal framework that would be available to all people in their specific jurisdictions.
- Within the context of public participation, the information that is presented to the public should be understandable and clear and must avoid the usage of ambiguous terms or terms that are excessively technical or that otherwise allow for confusion.
- State Parties should ensure adequate conditions to allow for participation and provide for effective access to information. State Parties should guarantee that the public can participate in the decision-making process from the early stages, as set out in Article 7.10 of the Escazú Agreement. Following the experience of the Aarhus Convention, this should be interpreted as ensuring participation when all the options are still open.
- States should ensure that all actors (including businesses, local governments and other stakeholders), have properly and thoroughly considered proposals and responses obtained from potentially affected and/or already impacted communities. It is the obligation of States to guarantee that project proponents (either public or private), shall deliver timely reports assessing the inclusion of the communities’ comments.
- Every participation process promoted by a State Party should be inclusive, transparent, gender-responsive and open to the largest available audience in observance of interamerican and international human rights law and multilateral environmental agreements. Participation processes cannot be discriminatory or fashioned in a way that hinders the interests of the community consulted.
- In regard to indigenous people, Afro-descendant tribal communities, and rural/ peasant communities, State Parties must adhere to internationally recognized standards that call for free, prior and informed consent (FPIC). These processes have to be regulated by national legislation in line with international and interamerican law.
Access to Justice:
- Parties should implement and develop access to justice in environmental matters, as provided for in Article 8 of the Escazú Agreement, in a comprehensive and meaningful way particularly those contained in paragraph 2 of the article. Additionally, States must include the measures and mechanisms contemplated in Articles 8.3, 8.4 and 8.5 of the Agreement which seek to ensure effective and inclusive access to justice in environmental matters for all, especially groups in vulnerable situations.
- As part of the obligations under Article 8.3.a of the Escazú Agreement, State Parties should facilitate the appropriate mechanisms to train and build capacities in their respective jurisdictions for judges and judicial staff. This should include training in issues pertaining to environmental degradation, the protection of environmental human rights defenders, environmental law, and the impacts of climate change, biodiversity loss and pollution on environmental and human rights, among other issues as set out in Art. 10.2(b).
- In order to fulfill the objectives, set out in Art. 8.5 and 8.4, mechanisms, such as a financial fund, should be created at regional and local levels to offset expenses related to the participation of experts in judicial cases, and also in non-judicial or administrative decision-making spaces. This should include funding for environmental studies and other scientific evidence that is needed in these fora in order to ensure that monetary factors do not impede access to judicial protection in cases of environmental harm.
- Within the application of the principle of interculturality in the context of Art. 8 of the Escazú Agreement, State Parties must provide for the necessary tools that will allow indigenous peoples, tribal, and rural communities to have an equal stance before the judiciary system. This shall include, but not be limited to, access to interpretation in local languages, the ability to present testimony or other evidence in culturally relevant ways, and respect for ancestral knowledge and practices.
- In order to secure the dignity, integrity, safety and life of environmental defenders, pursuant to Article 9 of the Escazú Agreement, State Parties must commit to providing a secure environment in which environmental defenders can exercise their duties. Hence, State Parties should guarantee effective remedies and transparent processes that prevent impunity. State Parties should hold accountable State and non-State actors whether individual or corporate if their actions infringe on the rights of defenders.
- To this end, State Parties can devise mechanisms to systematize and widely diffuse data concerning the threats and actions taken against environmental defenders, so that society is conscious regarding the subject.
- State Parties should encourage an active role for national human rights institutions by developing early warning systems or other tools that will allow for a secure environment in which defenders can carry out their work. In this sense, regional and international human rights and environmental bodies must be active in providing a platform for environmental defenders.
Capacity-building, Cooperation, and Compliance
- Beyond domestic adoption, effective cooperation and implementation of the Escazú Agreement may be developed and achieved by the Committee to Support Implementation and Compliance of the Agreement (Committee). Additionally, the Inter-American Human Rights system bodies (comprising the Inter-American Commission on Human Rights (IACHR) and the Inter-American Court of Human Rights (IACrHR)) should play an active role in exchanging information with the Committee and different actors, including State Parties and civil society, in matters relating to the nexus between Agreement compliance and human rights laws and norms.
- When creating the procedures for election of Committee members, State Parties should ensure that the public and civil society organizations have the ability to submit nominations and comments regarding nominees for review. While transparency is critical in this context, methods for ensuring anonymity in the submission of comments should be developed where necessary to protect those offering comments.
- State Parties should ensure transparency in compliance and oversight mechanisms under the Agreement for the legal and societal acceptance of the Agreement, as is a thorough explanation of the way in which the compliance system functions, the values it enshrines and the potential remedies it offers. Such transparency measures should be designed with an understanding of the languages used throughout the region and in each State – including Indigenous languages – to optimize inclusion and awareness.
- In the design of procedures for receiving and reviewing complaints regarding State Party non-compliance and information relating to such allegations, the Committee should ensure that members of the public and civil society organizations have the ability to offer comments, participate in the proceedings and have full access to decisions. While transparency is critical in this context, methods for ensuring anonymity in the submission of comments should be developed where necessary to protect those offering comments.
- The Committee should be open to receiving complaints directly from the public and civil society organizations, in regard to State compliance with the agreements and its effectiveness. Nonetheless, a decision or opening of a review before the Committee should not be understood as a waiver from responsibility of international and regional human rights protection mechanisms such as the Interamerican System or the Universal System.
- Throughout all stages of the complaint review, evaluation and decision-making processes, the Committee should ensure adequate avenues for members of the public and civil society organizations to observe and participate.
- To ensure transparency and promote trust in the system, the Committee should guarantee that all documents it generates and/or reviews are made available to the public in the languages of the Agreement. Additionally, this means that the Agreement has to be available through electronic means and in hard copies if requested. The creation of an independent sub-committee to review concerns over the release of potentially sensitive information to State or individual interests should be considered to ensure procedural fairness and faith in the new system.
- In the context of cooperation, State Parties can develop capacity-building efforts and exchanges that are holistic in terms of knowledge sharing as well as legal innovation and governance mechanism information exchanges. As such, State Parties should promote the participation of a wide array of public institutions, civil society organizations and private entities in these information exchange mechanisms.
- Any process of cooperation and capacity building must be inclusive and non-discriminatory. Therefore, State Parties should include and facilitate the participation of indigenous communities and communities that are vulnerable or marginalized, directly or through representatives such as civil society organizations, legal organizations and legal representatives. This also includes the recognition of local knowledge and practices as vital to State Parties and to the region as a whole and, building on this, assurances that such knowledge and practices will be afforded legitimacy in the decision-making of the Committee and any subsequent mechanisms to promote cooperation and capacity-building.
Subscribed on the month of April of 2022