June 03, 2021

The New Environmental and Human Rights Treaty in Latin America and the Caribbean You Should Know About

Posted June 3, 2021 by Susan Kath

The Escazú Agreement came into force in April 2021 with 12 ratifications (out of a possible 33) from Latin American and Caribbean countries. Guided by a secretariat at the Economic Commission for Latin America and the Caribbean, it is the first environmental treaty in the region, and affirms Principle 10 of the 1992 Rio Declaration on Environment and Development, resting on critical principles of environmental democracy and human rights. A six-year negotiation process that included States, civil society, environmental, and human rights experts yielded an agreement that enshrines the rights of access to information, citizen participation, and access to justice in environmental matters. As the first legally binding instrument to include provisions and protections for environmental human rights defenders (EHRDs), it has been hailed by its supporters in the region and around the globe as a landmark agreement for countries that continue to suffer extremely high numbers of killings of EHRDs.

The agreement, also known as the Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters, links these obligations to environmental management and protection in connection with sustainable use of natural resources, biodiversity conservation, land degradation, climate change, and disaster resilience, among others. Parties to the agreement agree to be guided by 11 principles, including the principles of non-regression and progressive realization, the preventative principle, the precautionary principle, and the principle of intergenerational equity. Notably, the agreement provides that parties ‘shall’ adopt the necessary measures of a legislative, regulatory, administrative or any other nature, in the framework of its domestic provisions. This requirement is key to ensuring future compliance with the agreement, even in those countries that already may have laws addressing the three principal rights.

The main commitments of the parties coalesce around the principal rights, prescribing quite specific requirements in connection with each right. The public’s right of access to environmental information is guided by the principle of maximum disclosure. This means that no special interest or reason for the information must be demonstrated, and full facilitation of access to the information for vulnerable persons or groups, including indigenous peoples or ethnic groups, is mandatory. Exceptions to disclosure are permitted, but the standards for non-disclosure are high, including the requirement to take into account each party’s human rights obligations. Extensive and detailed obligations are set forth on general requirements for generation and dissemination of environmental information — not limited to particular projects. If successful, this agreement will go a long way to sharing critical information within countries, especially with vulnerable persons and groups.

The agreement lays out a robust process for ensuring public participation in the environmental decision-making process, including minimum standards, and seeks to ensure compliance with international normative frameworks. Parties commit to establishing overall conditions that ‘are adapted to the social, economic, cultural, geographical and gender characteristics of the public’, a significant nod to the importance of socio-economic considerations in decision-making. Another novel element is the requirement to promote public participation in international forums and negotiations on environmental matters or with an environmental impact. The public’s right of access to justice under the agreement calls for a domestic legislative framework that ensures access to judicial and administrative frameworks for challenging and appealing a full array of decisions. Not only are decisions related to access to environmental information and public participation covered, but also those decisions that could affect the environment or violate environmental laws and regulations. Significantly, the right includes free technical and legal assistance to persons or groups in vulnerable situations. 

Incorporated in the final sections of the agreement are the three key paragraphs that address the rights of EHRDs, an unprecedented step to ensure protection of individuals across the region. Parties are required to guarantee a ‘safe and enabling’ environment for those who defend human rights in environmental matters, and they commit to take ‘adequate and effective’ measures to protect and promote all the rights of human rights defenders, including rights of peaceful assembly and association, free movement and exercise of access rights. Finally, in a region that has been unable to stave off killings of EHRDs, parties undertake to prevent, investigate and ‘punish attacks, threats or intimidations’ that defenders suffer in the course of exercising the rights set out the in the Escauzú Agreement.

Whether this agreement will spark a new era of multilateralism in the pursuit of sustainable development and regional cooperation remains to be seen. Surprising opposition to the agreement in the countries of some of the original supporters—including Costa Rica, Chile, Brazil, Colombia and Peru – means that the agreement is currently unratified in those places. Nevertheless, supporters are hopeful  that the passage of time will demonstrate how everyone in the region benefits under the Escazú Agreement.