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Implementing the Escazú Agreement: towards GNHRE’s guiding principles

By Felix le Roux, Pablo Serra-Palao & Natalia Urzola

The Escazú Agreement (the Agreement) is groundbreaking in myriad ways. It is the first regional agreement for Latin America and the Caribbean (LAC) that explicitly advances the intersection of human rights and environmental protection. With a clear set of rules, principles, and instruments, the Agreement aims at addressing environmental and human rights issues particular to that region. Access rights are at the center stage, as well as novel instruments to aid in the protection of environmental and human rights defenders. Cooperation and capacity building is also underscored in an attempt to facilitate information exchange between LAC countries.

LAC countries are no strangers to environmental protection. Most already have a strong environmental legal framework. Yet, implementation is a major issue, one that is particularly worrisome to the future of the Agreement. From a slow and troubled ratification process to a lack of clarity as to compliance mechanisms, the future of the Agreement is still being written. At GNHRE, we hope to contribute to the discussion in a way that helps advance the implementation of Escazú. Therefore, GNHRE’s Latin America team has worked in opening up spaces to ignite discussions around this topic with an ongoing virtual symposium followed by a 2-day summit organized in partnership with REDESCA. Here are the main takeaways so far:

1. GNHRE’s Escazú Summit

GNHRE’s virtual symposium sparked an online conversation on the implementation of the Agreement, with outstanding contributions from a diverse set of scholars. Contributors focused on key challenges and provided insights as to possible avenues to ensure the Agreement’s implementation.

Following the symposium, GNHRE and REDESCA held a 2-day summit. The first day of the summit featured a high-level discussion in the form of a webinar. The following esteemed experts were invited to speak about the challenges in implementing the Agreement:

1.         Soledad García Muñoz, Special Rapporteur on Economic, Social, Cultural and Environmental Rights (REDESCA), from the IACHR, OAS.

2.         David R. Boyd, UN Special Rapporteur on Human Rights and the Environment.

3.         Marcos Orellana, UN Special Rapporteur on Toxics and Human Rights.

4.         Lina Muñoz Ávila, Universidad del Rosario, Bogotá.

5.         Jovita Tzul Tzul, Lawyer, Bufete para Pueblos Indígenas, Guatemala.

1.1. First day: high-level discussion webinar

Ms. García Muñoz’s intervention placed special emphasis on the role of the Agreement in reinforcing the principles and obligations, in terms of the human right to a healthy environment, already enshrined in the inter-American regulatory framework and jurisprudence. This mutual reinforcement between the provisions of the Agreement and the existing human rights and environmental obligations of the inter-American system is a major point in illustrating the relevance of its ratification. Moreover, the obligation of the States in protecting environmental defenders is reinforced throughout the Agreement, including State’s obligation to verify that corporate activities do not violate human rights in their territories. REDESCA’s report on “Business and Human Rights: Inter-American Standards was mentioned as a roadmap in this regard. Ms. García Muñoz closed the intervention with a call for States that have not signed or ratified the Agreement to do so, in order to promote the protection of nature, transparency, democracy, sustainable development, and the protection of human rights.

Dr. Boyd highlighted three major positives to come out of the adoption of the Agreement: (i) the negotiation process was transparent; (ii) the provisions of the Agreement are excellent since they give effect to the Principle 10 of the Rio Declaration on Environment and Development (A/CONF.216/13); and (ii) many of the signatories to the Agreement are recognizing the right to a healthy environment in law for the first time. However, Dr. Boyd emphasized the importance of putting the Agreement into practical action, especially as it relates to the protection of minorities and vulnerable people, and discussed three challenges in this regard. First, the ongoing lack of ratification among key states in the region remains one of the biggest obstacles in implementing the Agreement effectively at the national level. Only 12 out of the 24 signatories have ratified the Agreement so far and nine states have not signed the Agreement. Second, the development of effective mechanisms and processes for the enforcement of the Agreement is an urgent concern. Third, LAC is characterized by an implementation gap in the field of environmental access rights. Paradoxically, the region is at the forefront of developments in legal environment protection but it remains the region most affected by climate change. Furthermore, extractivism continues to trump environmentalism, as exemplified by the impunity with which environmental defenders are attacked. The Agreement can make meaningful contributions to solving these problems but it requires more states to ratify it. In addition, effective enforcement mechanisms and a stronger culture of rule of law are needed. States also need to engage in good practice sharing and take a human rights-based approach to protect the environment. Dr. Boyd concluded by highlighting the passion and proactivity of people in LAC, especially among young people, and expressed optimism that the Agreement can reach its goals.

Dr. Orellana focused on three relevant issues regarding the Agreement’s implementation: (i) its regional focus; (ii) the synergies between the Agreement and other multilateral agreements; and (iii) the unfinished status of the Agreement. On the first point, Dr. Orellana recalled how this process began with the 2012 Declaration on the application of Principle 10 of the Rio Declaration, constituting a strong regional commitment with the idea of sustainable development agreed on in Rio 92. However, almost ten years after the Declaration, it is concerning that some stakeholders are still waging a misinformation campaign against the Agreement. As for the second point, in developing the fundamental aspects of ‘access rights’ in environmental matters, the Agreement has a direct positive impact on the implementation of different multilateral environmental —and human rights— agreements. Finally, Dr. Orellana cautioned that there are unfinished features of the Agreement that hold back the full implementation of its provisions, such as the rules of procedure of the Conference of the Parties or the rules of composition and functioning of the Committee to Support Implementation and Compliance, among others.

Dr. Muñoz Ávila discussed some of the legal and political challenges around the ratification of the Agreement. From a legal perspective, there are many different ratification processes throughout the countries in LAC and some may take much longer to finalize than others. From a political perspective, several misinformation campaigns have caused panic among key stakeholders such as business, government, and members of the legislative branch. Such misinformation campaigns contribute to the lack of ratification among many states in the region and undermine the environmental protection advanced by the Agreement. Thus, there is an urgent need to promote truthful and transparent discussions about the Agreement. Despite these challenges, Dr. Muñoz Ávila emphasized that the Agreement should be regarded as a point of departure rather than a final destination and that there will be many more opportunities for states to ratify the Agreement in the future. With each new national election in the region comes an opportunity to demand ratification from political candidates and to elect candidates that take the right to a healthy environment seriously. Hopefully, the first COP in April 2022 will also assuage doubts about the benefits of ratifying the Agreement.

Ms. Tzul Tzul started by underlining the significance of the Agreement in supporting daily legal work related to environmental rights cases. This Agreement is greatly welcomed in countries like Guatemala, where there is a long history of the movement for the defense of the territory. However, despite the Agreement representing a step further towards the protection of environmental defenders, there are important structural challenges facing the full implementation. First, the long-standing structural racism. Indigenous communities are mainly affected by this racism, constituting a serious obstacle in their access to —environmental— justice. Second, the extractive vision of nature continues to pervade development policies in many countries. As a consequence, consultation and consent standards are often disregarded in cases where indigenous communities might be affected. Third, Ms. Tzul Tzul underlined that indigenous communities in Guatemala are still unrecognized and underrepresented in decision-making spaces, mainly due to the same reasons. These challenges need to be urgently addressed in order to achieve the full implementation of the Agreement.

The most notable questions during the Q and A session dealt with the steps that can be taken to increase ratification among states in LAC and what the impact would be if the United Nations Human Rights Council (UNHRC) recognized the right to a healthy environment as a human right. Dr. Muñoz Ávila stated that the public must demand the ratification of the Agreement from political candidates and that the states who have ratified the Agreement should take a leading role in highlighting the benefits of ratification and sharing positive experiences and practices with other states. Dr. Boyd stated that the recognition of a universal right to a healthy environment by the UNHRC would send a powerful message of solidarity to environmental defenders and provide a catalyst for meaningful change. Despite its non-binding nature, previous UNHRC resolutions (e.g. the resolution on the right to water) have made a massive contribution to improving the living conditions of people worldwide. Hopefully, the recognition of the right to a healthy environment will do the same. The day after the webinar, on 8 October 2021, the UNHRC unanimously adopted a resolution to recognize the right to a healthy environment as a human right. In conclusion, the esteemed speakers agreed that many positive developments in relation to the environment are taking place around the world and that there is plenty of reason for hope and optimism.

1.2. Second day: closed workshop

The high-level discussion was followed by a closed workshop with over 20 participants. Held on the second day of the summit, the workshop aimed at discussing the six pillars of the Agreement identified in the first post of the virtual symposium: (i) the right to a healthy environment; (ii) the right to public participation; (iii) access to environmental information; (iv)

access to justice; (v) protective mechanisms for environmental activists; and (vi) capacity-building and cooperation. After an initial introduction, the session was divided into smaller groups, where participants had the chance to engage in deeper and more thorough discussions on at least two of the six pillars. The groups then came back to the main session for a final conversation, where each group shared their discussion points and main conclusions.

The workshop proved successful and hosted meaningful conversations. The workshop provided a starting point for drafting the GHNRE’s Guiding Principles on the Implementation of the Escazú Agreement. As a general matter, any effort in contributing to the Agreement’s implementation should be context-specific and consider the particularities of LAC countries. Likewise, the existence of an already robust Inter-American system of human rights makes it all the more necessary to be mindful of the synergies, in a way that not only allows their coexistence but also benefits from it.

Regarding each of the pillars, the workshop emphasized key questions to keep in mind while working on the principles: How can the right to a healthy environment be interpreted? Should we follow an ecocentric approach as it has been developed by the inter-American system of human rights? How can we ensure access rights -i.e. access to justice, access to information, public participation- are observed during the implementation process? Who needs to provide information and what should we do with that information? What would capacity building and cooperation look like? How can international human rights institutions aid in protecting environmental defenders? Are compliance mechanisms effective during the implementation process? What should the nature of compliance mechanisms be?

All these questions remind us of the significance of the Agreement. A first of its kind in the region, the Agreement has the potential to provide content to ongoing environmental and human rights challenges. It is also an opportunity to engage with key actors that have been neglected for so long. Implementation is, thus, crucial and will determine the success of such a groundbreaking Agreement beyond a corpus of inspiring words.

2. Next steps: towards GNHRE’s guiding principles

GNHRE now has the task of developing a range of recommendations on how to improve implementation. The virtual symposium, as well as the 2-day summit, identified key challenges that lie ahead and clarified avenues towards good implementation practices. GNHRE created a task force that is now in charge of drafting a set of guiding principles (GNHRE Principles for the Implementation of Escazú) to meaningfully contribute to implementing Escazú in LAC. The task force plans on publishing the guiding principles at the beginning of 2022.