{"id":14053,"date":"2021-08-03T17:35:48","date_gmt":"2021-08-03T16:35:48","guid":{"rendered":"https:\/\/gnhre.org\/?p=14053"},"modified":"2023-11-11T13:49:45","modified_gmt":"2023-11-11T13:49:45","slug":"the-six-pillars-of-the-escazu-agreement-part-1","status":"publish","type":"post","link":"https:\/\/gnhre.org\/?p=14053","title":{"rendered":"The Six Pillars of the Escaz\u00fa Agreement (Part 1)"},"content":{"rendered":"\n

by Maria Antonia Tigre<\/a><\/p>\n\n\n\n

Introduction to the Symposium<\/strong><\/p>\n\n\n\n

Latin America and the Caribbean (LAC) is a region filled with paradoxes<\/a>: it is a unique biologically rich region that heavily relies on primary products and natural resources driven by external demands for commodities. As LAC continues to pursue \u201cdevelopment,\u201d important ecosystems and ecological processes are affected. It is also the deadliest region for environmental defenders, with countries in the region consistently placing<\/a> first in rankings. However, the growing practice of environmental democracy<\/a> shows that environmental issues are best handled with the participation of all concerned citizens.<\/p>\n\n\n\n

The Escaz\u00fa Agreement<\/a> (Escaz\u00fa) entered into force in April 2021 as a landmark treaty for advancing environmental rights \u2013 and access rights, in particular \u2013 in LAC. Countries in LAC now face the hard task of implementing Escaz\u00fa. Environmental decision-making faces a series of distinctive challenges due to the (i) volume and diversity of environmental interests, (ii) the plurality of environmental values involved, (iii) the uncertain nature of environmental knowledge, and (iv) the complex kind of environmental risk.<\/p>\n\n\n\n

The GNHRE has called<\/a> for contributions for our first virtual symposium, focusing on the Escaz\u00fa Agreement. The symposium aims to better understand what innovations LAC\u2019s first environmental treaty brings, which challenges in implementation countries face after it has entered into force, and what the effects it has on human rights and the environment on the existing national legal frameworks. Throughout the next few weeks, we will publish diverse views from scholars on the legal aspects of Escaz\u00fa. This post introduces the symposium and the first view on some of these innovations and challenges.<\/p>\n\n\n\n

Introduction to the first symposium contribution<\/strong><\/p>\n\n\n\n

In giving expression to the idea of environmental democracy, Escaz\u00fa joins the Aarhus Convention<\/a> \u2013 Europe\u2019s 1998 convention on environmental access rights \u2013 in implementing Principle 10 of the 1992 Rio Declaration<\/a> on Environmental and Development. Through three pillars<\/a> of environmental democracy, Principle 10 introduces environmental procedural rights: (i) the right to public participation, (ii) access to environmental information, and (iii) access to justice. Yet, Escaz\u00fa provides a regional spin to Principle 10 by recognizing the regional underpinnings<\/a> of the universal values it expands. Escaz\u00fa holds that environmental decision-making is rarely straightforward; essential in its implementation is recognizing how Principle 10 applies<\/a> to the region\u2019s social, cultural, economic, and environmental context. Escaz\u00fa, therefore, expands on the three traditional pillars of access rights, adding (iv) the right to a healthy environment, (v) the protection of environmental and land defenders, and (vi) capacity building & cooperation. These additional pillars are essential in implementing environmental democracy in LAC.<\/p>\n\n\n\n

In recognizing the regional scenario in which Escaz\u00fa enters into force, I ask what makes Escaz\u00fa a unique legal tool for environmental democracy in LAC. This comment seeks to introduce Escaz\u00fa and what it means for the region by explaining what these pillars are. The analysis will be presented in two parts. The first part introduces the three \u201ctraditional\u201d pillars and how Escaz\u00fa particularly implements them. The second part then presents the three \u201cnew\u201d pillars and a brief comment on what the future of Escaz\u00fa holds.<\/p>\n\n\n\n

Pillar 1: The right to public participation<\/strong><\/p>\n\n\n\n

To protect the environment and the human rights that depend on it, everyone has the right to participate in environmental decision-making. This is especially relevant in LAC, where decades of extensive environmental impacts of extractive industries and infrastructure projects are at the heart of the region\u2019s socio-environmental conflicts. For example, affected populations in the Amazon region<\/a> have for long demanded more significant participation in decision-making regarding natural resource exploitation activities. The pandemic has further marginalized<\/a> these communities, increasing their vulnerability.<\/p>\n\n\n\n

Escaz\u00fa calls on parties to ensure the public\u2019s right to participation through open processes based on domestic and international normative frameworks (art. 7). Escaz\u00fa ensures affected communities and individuals can participate in a wide range of environmental decision-making processes by guaranteeing specific mechanisms. These include authorizations and revisions of projects <\/strong>and activities <\/strong>that have, or may have, a significant impact on the environment, as well as plans, policies, strategies, rules, and regulations. Citizens shall participate in these processes from an early stage. While \u201cearly\u201d is not defined in the agreement, countries shall ensure reasonable timeframes so that decision-makers can adequately consider the public\u2019s observations. In addition, each Party shall establish favorable conditions <\/strong>for public participation adapted to the public\u2019s social, economic, cultural, geographical, and gender characteristics. Specifically, when the primary language <\/strong>of the people directly affected is different from official languages, the public authority shall ensure that means are provided to facilitate their understanding and participation.<\/p>\n\n\n\n

Pillar 2: Access to environmental information<\/strong><\/p>\n\n\n\n

Access to information represents an initial point of reference in any public participation process. The reality in LAC<\/a> is often that projects are developed without accessible information on the project\u2019s environmental impact, long-term effects, or greenhouse gas emissions. Escaz\u00fa provides for passive measures of access to information (art. 5), i.e., the obligation to respond to requests by the public in a timely and cost-effective manner, and active measures (art. 6), which includes generating, collecting, publicizing, and disseminating environmental information in a systematic, proactive, timely, regular, accessible, and comprehensible manner.<\/p>\n\n\n\n

Crucially, this includes requirements for public and private companies to disclose information and develop, for example, sustainability reports to disclose social and ecological records (art. 6(13)). Additionally, states shall progressively implement access to information in electronic databases, which shall be open to the contribution of the public (art. 4(9)). This requirement broadens the reach of access to information as the use of mobile phones increases, given that several impacted communities live in remote areas and cannot easily reach official buildings where permitting procedures are physically held.<\/p>\n\n\n\n

Particularly interesting is the care of vulnerable people. Article 2(e) defines vulnerable persons or groups as those facing particular difficulties in exercising access rights due to national circumstances. Given the deep roots of discrimination and inequality in LAC, the special protection of vulnerable groups is essential. The agreement requires easier access and procedures to assist requests and information of various kinds. By protecting vulnerable communities, the agreement seeks to remove the barriers that impede or hinder the full exercise of their environmental rights.<\/p>\n\n\n\n

Pillar 3: Access to justice for citizens affected by resource exploitation<\/strong><\/p>\n\n\n\n

Access to justice is materialized in Escaz\u00fa through the obligation to ensure judicial and administrative mechanisms to challenge and appeal: (i) any decision, action, or omission related to access to environmental information or public participation; and (ii) any decision, action, or omission that affects or could affect the environment adversely or violates laws and regulations related to the environment (art. 8(2)). The latter guarantees external review and strengthens the role of citizens and NGOs in legal implementation. Through this provision, Escaz\u00fa clarifies that the public also has a role in applying the law through a duty to conserve and protect the environment for present and future generations. Broadening this responsibility and facilitating mechanisms to implement it is essential given the inaction of governments. Escaz\u00fa provides means, for example, to expand the reach of climate litigation<\/a> in the region.<\/p>\n\n\n\n

Escaz\u00fa recognizes particular mechanisms to facilitate access to justice, including:<\/p>\n\n\n\n