By Pedro Cisterna Gaete
Lawyer; LLM Global Environment and Climate Change Law, University of Edinburgh; Ph.D. in Law Candidate at the University of Edinburgh
The entry into force of the Escazú Agreement in Latin America and the Caribbean (LAC) marks a milestone in international environmental law. The recognition of rights such as access to justice, information, and participation is a significant step in promoting sustainable societies. Historically, foreign investment projects have negatively affected the environment and communities in the region, predominantly indigenous communities. The exploitation of our ecosystem in the name of economic growth blinded governments for several decades, ignoring environmental protection and excluding affected communities from decision-making.
This post argues that the Escazú Agreement can potentially (1) shape the content of future environmental and climate law multilateral environmental agreements (MEAs) in LAC and beyond, (2) shape the negotiating experience of such MEAs in LAC and beyond, and (3) offer a template for a regional climate adaptation treaty. First, it highlights how the negotiating experience that preceded the adoption of the Escazú Agreement could shape the negotiation of other regional environmental and climate MEAs. Second, it identifies norms and principles in the Escazú Agreement that could facilitate the development of new regional MEAs. Specifically, rules on public participation provide a valuable platform to improve environmental and climate commitments. Thirdly, it argues for an urgent need to coordinate regional adaptation to respond to climate change’s physical and social impacts in Latin America, which the Escazú Agreement could help shape.
The Escazú Agreement and the positive impact of its negotiating experience
The Escazú Agreement shows significant progress for environmental diplomacy and regional cooperation in LAC. The Agreement is the outcome of a negotiating process that started during the 2012 Conference Rio+20, with the ‘Declaration on the application of Principle 10 of the Rio Declaration in Latin America and the Caribbean’ (the Declaration). The Declaration highlights LAC’s will to recognize procedural environmental rights regionally. Following the Declaration, 19 LAC countries approved the Santiago Decision, which provided the preliminary negotiating framework to kickstart a regional instrument on access to information, public participation, and justice in environmental issues. The Santiago Decision also established a Negotiation Committee and a Presidency constituted by Chile and Costa Rica. Following the Santiago Decision, the involved nations agreed on a working plan and initiatives to incorporate public participation in the development of the Agreement.
The negotiating process offers two helpful lessons for future MEAs in LAC. First, the unprecedented participation of civil society in the negotiation process is a lesson for future talks. The Plan of Action of the Declaration established public participation as one of the essential elements in the treaty-making process. Then, the Santiago Decision reinforced this position by forming a Negotiation Committee and emphasizing the importance of having significant participation by the public. Finally, public participation was achieved through the “Regional Public Mechanism,” a representative organ of more than 2,000 environmental NGOs. One of the effects of this broad participation process was the inclusion of norms for protecting environmental defenders in LAC.
A second positive aspect of its negotiation process is its success in entering into force even amidst critical difficulties. First, the global pandemic brought practical obstacles for advancing the ratification process, delaying the procedures of some key signatories. Second, domestic pressure and challenging governmental decision-making regarding signing and ratifying the Agreement have brought additional delays. Domestic political divergences on how Escazú could impact the economy were the main concerns of some nations. The Chilean case is paradigmatic. Even though Chile presided over the Agreement’s negotiation process, the government of Sebastián Piñera decided not to sign and ratify it because of the legal uncertainties that the implementation of the Treaty could provoke. This view was roundly criticized by several academics and organizations, especially considering that Chile is part of the Paris Agreement, which calls on parties to cooperate in establishing measures for ensuring public participation (art. 12). Indeed, the political views of some LAC governments have hindered the broad ratification of the Escazú Agreement.
However, four years of negotiation anticipated potential domestic resistance from some countries. To overcome the opposition to the Agreement, negotiators encouraged flexible rules considering national legislation and domestic conditions for its implementation. For instance, art. 5 of the Escazú Agreement asserts that governments can restrict access to information based on domestic legislation. Furthermore, in implementing the right to access environmental information through its generation and dissemination, the Agreement clearly states in article 6 that parties shall guarantee this action ‘to the extent possible within available resources,’ balancing ambition and differentiation. This balance helped get the support of enough nations to finally sign and ratify the Agreement.
Rules and Principles contributing to future environmental agreements
The Escazú Agreement contains rules and principles that can foster the development of other regional MEAs. This refers especially to public participation as one of the pillars of the Escazú Agreement. The Agreement calls on the parties to guarantee open processes and direct public involvement in decision-making. In this regard, Article 7.12 states that “Parties shall promote the public’s participation in international forums or negotiations of environmental matters.” Moreover, the same rule asserts that governments shall reinforce the “participation of the public at the national level on matters of international environmental forums.” These norms go in line with art. 3 of the Arhus Convention.
Public participation in environmental decision-making processes legitimizes international treaties amongst the Parties, facilitating its implementation. Legitimizing international instruments in the eyes of affected communities is an essential issue in LAC, where adverse impacts of extractive industries are prevalent. For example, during the 60s and 70s, Chile created development zones in some areas. After decades of industrial activity, these areas turned into environmentally ‘sacrifice zones’, endangering ecosystems and communities. From the beginning, the decisions designating these areas as industrial zones were made without public participation, creating a general mistrust in environmental institutions. In such contexts, enhancing participation processes through the Escazú Agreement could help restore communities’ confidence in environmental institutions, providing better social and institutional conditions for discussing and implementing future regional environmental treaties.
Using Escazú Agreement for fostering cooperation in Climate Change Adaptation
The negotiating experience and the rights recognized by the Escazú Agreement are valuable for regional climate change adaptation. Regional bodies such as ECLAC acknowledge the need for a regional approach and cooperation to confront the impacts of climate change in LAC. This region shares several environmental heritages, such as the Amazon or the Andes mountains, that are increasingly threatened by climate change. For instance, the immense fires in the Amazon involve several countries and spread across borders. Thus, improving transnational cooperation and collaborative adaptation actions can help reduce and prevent the impact of those events and enhance the adaptive capacity of the Amazon communities. Another example is the Andes Mountains, where climate change accelerates glacier melting. Similarly, no cooperative adaptation agreement exists between the nations that share these mountains. Therefore, establishing a regional adaptation treaty in LAC to define common environmental heritages and coordinate adaptation actions can enhance the adaptive capacity of ecosystems and communities endangered by climate change.
For achieving the above, both the negotiating experience and the rights recognized by Escazú are essential. An essential element is the broad public participation in developing the Agreement. Reinforcing public participation in elaborating a regional climate adaptation MEA helps identify the local impacts of climate change. In addition, Escazú’s negotiating experience would help bolster a regional cooperative system on transnational climate challenges for Latin America.
Second, the standards of participation, access to information, and access to justice ensured by the Escazú Agreement guarantee broad protection for communities impacted by climate change. For instance, public participation at the local level is essential for creating better adaptation responses. The variety of ecosystems and communities living in Latin America requires different adaptive responses. Then, to safeguard these differences and avoid vertical decisions, it is fundamental to guarantee the effective participation of affected communities. In line with art. 7 of the Paris Agreement, public participation of the most vulnerable communities is vital in developing National Adaptation Plans (NAPAs). Implementing the Escazú Agreement in LAC is beneficial for making better NAPAs, including communities in their design and implementation.
Indeed, the Escazú Agreement can help shape and develop future international environmental law agreements in LAC. The Agreement provides rules that facilitate the creation and implementation of future environmental and climate treaties. In addition, the negotiating experience that shaped the Escazú Agreement could potentially pave the way for further development in environmental cooperation. LAC has diverse ecological and climate needs where cooperation is essential. It is time to identify them and institutionalize collaboration between our nations, especially for protecting and integrating the most vulnerable communities and ecosystems.