By Felix le Roux
LLM Candidate at the University of Pretoria, South Africa
The Escazú Agreement (the Agreement) is based on the fundamental premise expressed in Principle 10 of the Rio Declaration that “environmental issues are best handled with the participation of all concerned citizens.” To this end, the Agreement contains detailed provisions relating to the rights of access to environmental information, public participation in environmental decision-making, and access to justice in environmental matters. But the question is: how can these provisions be implemented equitably and fairly in various communities living in Latin America and the Caribbean (LAC)? Several provisions throughout the Agreement, most notably those referring to “persons or groups in vulnerable situations,” attempt to answer this question. However, if the Agreement’s implementation is to be successful in the long term, it should be based upon a substantive basis that accommodates the variety of different communities living in LAC. This is where the concept of variability (or flexibility) could be valuable.
The Concept of Variability
Variability is the notion that the content of procedural rights such as access to information, public participation, and access to justice must vary according to the specific circumstances to which they are applied. It is a familiar concept in common law jurisdictions such as England and Australia, where courts have applied it for just over a century. In South African administrative law, variability has developed considerably through the influential work of Cora Hoexter and the subsequent application thereof in the courts, including the Constitutional Court of South Africa. The Promotion of Administrative Justice Act 3 of 2000 is the constitutionally mandated legislation that gives effect to the right to administrative justice in South Africa. It espouses the same principles as the Agreement – access to information (in the form of written reasons in terms of section 5); public participation (as part of procedural fairness in terms sections 3 and 4); and access to justice (in the form of judicial review in terms of section 6). The content of these procedural rights and the intensity with which a court enforces them are dependent on the specific circumstances of each case. Relevant factors to consider under the variability principle include the policy content of the decision, the decision’s impact, and considerations of administrative capacity and efficiency. These factors, among others, must be weighed and balanced to determine precisely what is required to ensure procedural rights in a given set of circumstances. For instance, consider the situation where a public authority intends to impose a daily water quota. If this measure is applied to a wealthy urban area, the relatively minor impact of the decision and considerations of administrative efficiency may dictate that the affected persons are merely sent a written notice. On the other hand, if the same measure is applied to a rural farming community that relies on large volumes of water to irrigate its crops, the severe impact of the decision may make it necessary for the public authority to hold a public hearing where the affected persons have an adequate opportunity to make representations and receive appropriate responses from public officials.
Thus, variability is a comprehensive and robust legal doctrine that provides a substantive basis for the proposition that a one-size-fits-all approach is inappropriate when it comes to implementing access to information, public participation, and access to justice. It also provides a court or tribunal with a substantive basis to justify judicial intervention or non-intervention when disputes arise concerning these procedural rights.
Variability and the Escazú Agreement
The types of communities living in LAC vary not only from country to country but also within countries. Brazil, for instance, is astounding in size and home to more than 200 million people, while St Kitts and Nevis is roughly the same size as Brooklyn and boasts a population of just over 50,000 people. Likewise, in Colombia, you can find one of the world’s most densely populated cities, Bogotá, alongside the sporadically populated Amazonian region. With this in mind, the implementation of the Agreement will only be equitable and fair if it takes the variability principle into consideration.
To its great credit, the Agreement recognizes the factual realities of LAC. Article 5 obliges State Parties to facilitate access to environmental information for persons or groups in vulnerable situations, including indigenous peoples, and provide the necessary assistance to ensure that such groups can participate effectively (para. 3 and 4). Article 6 protects persons or groups in vulnerable situations by requiring the dissemination of environmental information in different languages, via suitable communication channels, and in a format they can understand (para. 6). Article 7 requires the provision of environmental information in a clear, timely, and comprehensive manner to realize the right to public participation and lays down the minimum type of information that needs to be communicated (para. 4, 6, and 17). The use of appropriate means of communication, including in writing, electronically, orally, or by customary methods, is emphasized throughout Article 7 (para. 6, 7, 9, and 14). Public participation mechanisms must be adapted to the social, economic, cultural, geographical, and gender characteristics of the public (para. 10), and public authorities must facilitate the participation and understanding of affected groups whose primary language is different from the official languages (para. 11). Again, persons and groups in vulnerable situations should be given special consideration to ensure that barriers to their participation are eliminated (para. 14). Article 8 requires State Parties to take steps to reduce or eliminate barriers to access to justice, including the interpretation or translation of languages other than the official languages where necessary (para. 4). In addition, persons and groups in vulnerable situations should be assisted to ensure access to justice, including by providing free technical and legal assistance where necessary (para. 5).
The rich history and content of variability as a legal doctrine can provide the substantive basis upon which the above provisions will operate. It can guide the equitable and fair implementation of the Agreement by public authorities at the ground-level and provide courts and tribunals with a framework for adjudicating disputes. Article 7(6)(c) of the Agreement may serve as an example to illustrate the point. It requires that, as a minimum, the public must be informed of:
the procedure foreseen for the participation of the public, including the date on which the procedure will begin and end, mechanisms for participation and, where applicable, the date and place of any public consultation or hearing.
In some cases, public authorities will have to go beyond these minimum requirements. For example, if the impact of the decision is particularly severe, the public authority concerned may first have to enquire from the affected persons which type of procedures would be fair and allow an adequate opportunity to make representations. Similarly, if the affected persons live in a remote location, provision may have to be made for their transportation to the place of the hearing and such arrangements would then need to be communicated as well. However, in other cases, considerations of administrative efficiency or the limited capacity of the public authority concerned may justify sticking to the bare minimum.
Another benefit of a variability-based approach is that it is familiar to the common law jurisdictions in the Caribbean region. Common law principles, including the notion of variability, guide the implementation of environmental access rights in the Caribbean by providing the fundamental principles that complement national environmental laws. For example, the famous dictum from R v Secretary of State for the Home Department, Ex parte Doody  UKHL 8, which emphasizes that “what fairness demands is dependent on the context of the decision,” is central to the standard of procedural fairness which applies in domestic environmental law in the Caribbean. A variability-based approach to the Agreement also aligns with the Bali Guidelines, which emphasize the obligation to ensure adequate opportunities for public participation (Guideline 9); objective, understandable, timely, and effective delivery of environmental information (Guideline 10); and appropriate assistance mechanisms to alleviate unequal access to justice (Guideline 20). To achieve the goals set out by these guidelines, the implementation of the Agreement must be sensitive and responsive to the specific context of each case. As illustrated above, variability is exceptionally well-equipped to ensure that legal rules are applied in a context-specific fashion. Some may argue that variability opens the door to inconsistent results in the implementation of the Agreement. However, variability does exactly the opposite. If the provisions in the Agreement are applied in a one-size-fits-all fashion to the variety of different communities living in LAC, the results will no doubt be inconsistent due to the unique features of each community. Variability ensures that the implementation of the Agreement accommodates and embraces the diversity of LAC and provides each community with an equitable and fair opportunity to exercise the rights guaranteed in the Agreement.
The Agreement is a stunning achievement in multilateralism and contains the provisions necessary to ensure its equitable and fair implementation. The value of variability lies in its comprehensive and robust nature as a legal doctrine that can guide the implementation of the Agreement and the adjudication of disputes that arise from it. Universal Principle Two of the UN 2030 Agenda for Sustainable Development commits to “leave no one behind.” Variability provides the Agreement with a substantive basis that accommodates the variety of different communities living in LAC and ensures that no one – whether it be the urban businessman in Bogotá or the indigenous farmer in the Amazon – is left behind.