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The Escazú Agreement: internationalising environmental matters and sustainable rights

  • United Kingdom
  • Environment
  • ESG
  • International arbitration

21-02-2022

This article was originally published in Global Arbitration Review.

Meriam Nazih Al-Rashid, Kate Lomas and Angela Antoniou of Eversheds Sutherland report on a recently concluded Latin American regional treaty addressing environmental protections and the rights of environmental defenders, and providing for state-to-state arbitration over compliance with its terms.

In recent years, environmental matters have become an area of greater concern in international law, resulting in increased discussion – and incorporation – of environmental rights and protections in instruments of international law. It is now increasingly common to see environmental rights recognised as a subset of human rights.

On 22 April 2021, the Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean (known as the Escazú Agreement) entered into effect. It is the first treaty at the regional level in Latin America and the Caribbean on environmental protections and the first treaty, worldwide, that explicitly recognises the importance of environmental defenders and promotes their rights. While environmental matters and the rights of those who defend them are undeniably a matter of global concern, this area of international law is of particular importance in Latin America given the vulnerability of environmental activists and defenders in the region (Latin America is the deadliest region for environmental activists and defenders, especially Colombia and Mexico, according to the latest report from Global Witness). Further, as the Escazú Agreement contains provisions for state members to arbitrate disputes, its entry into force raises the prospect of state-to-state arbitrations over compliance with the agreement.

In this article, we look at the key provisions of the Escazú Agreement; consider global trends in environmental protections in public law; and provide a brief update as to the advances in this area resulting from the 2021 United Nations Climate Change Conference (COP26).

The key provisions

The key terms of the Escazú Agreement are as follows:

  • article 1 provides that the objective of the Agreement is to guarantee the full implementation of the rights the Agreement seeks to endorse; and internationalises environmental rights by recognising the “right of every person of present and future generations to live in a healthy environment and to sustainable development”
  • article 4 acknowledges the protection of the environment as a human rights concern and obliges state parties to guarantee the right of every person to live in a healthy environment “and any other universally-recognized human right related to the present Agreement”
  • article 5 obliges state parties to ensure that the public’s right of access to environmental information accords with the principle of maximum disclosure, provides a deadline to respond to disclosure requests and provides a list of exceptions under which parties are permitted to withhold information
  • article 6 guarantees access to environmental information held by state parties, “to the extent possible within available resources” while obliging state parties to “promote access to environmental information in the possession of private entities” and encourage public and private companies to prepare sustainability reports that reflect their performance
  • article 7 guarantees and promotes the participation of the public in decision-making processes, including revisions and re-examinations, relating to rules, regulations, policies, and environmental permits, or matters of public interest that have or may have a significant impact on the environment. It also obliges public authorities to make efforts to identify and support vulnerable persons and communities that are likely to be impacted by projects or activities that may have an impact in the environment, and facilitate their participation
  • article 8 ensures access to justice through judicial and administrative mechanisms to challenge and appeal any decision, action or omission relating to: access to environmental information; public participation in the decision-making process regarding environmental matters; and any breach of environmental law or decision that could have an adverse impact on the environment. It also promotes the use of alternative dispute resolution (ADR) mechanisms where appropriate and obliges each state party to meet the needs of those in vulnerable situations by offering support, such as free legal and technical aid.
  • article 9 addresses the region’s challenges in facing violence against environmental defenders by obliging each state party to guarantee a “safe and enabling environment for persons, groups and organizations that promote and defend human rights in environment matters, so that they are able to act free from threat, restriction and insecurity.”
  • article 19 obliges state parties to settle disputes arising from the interpretation or application of the Agreement through ADR mechanisms, arbitration or through submission of the matter to the International Court of Justice.

To date, 12 states have ratified the agreement and an additional 24 have signed it. Notably, Brazil, Colombia, Costa Rica, and Peru have yet to ratify the agreement. This could be a sign that these countries are seeking to protect their domestic environmental, sustainability and human rights framework, or that they are simply waiting to see what this coming year brings, following COP26 and the impact of the Paris Agreement.

Global environmental trends

Since the entry into force of the Escazú Agreement, global leaders have further demonstrated their continued focus on environmental issues and the clear link between environmental issues and human rights. This was clear, for example, at COP26 and in the seventh session of the open-ended intergovernmental Working Group on transnational corporations and other business enterprises with respect to human rights, which is currently working on an international treaty on business and human rights (the BHR Treaty).

Regional instruments

It is interesting that this field of public international law has thus far developed at a regional rather than global level. This may be a feature of the very different environmental challenges faced in different regions – most obviously the divide between capital exporters and host nations for investment.

This regional focus was not lost on participants and delegates of COP26, during which the Escazú Agreement was highlighted in at least five events. These events emphasised the importance of regional organisations and treaties. The Escazú Agreement is open to all 33 countries of Latin America and the Caribbean and aims to further the public’s role in responding to environmental concerns as established by Principle 10 of the 1992 Rio Declaration on Environment and Development. Principle 10 expressly acknowledges that:

“ Environmental issues are best handled with participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided. "

The Economic Commission for Latin America and the Caribbean reports that 76% of countries in the region have adopted provisions to promote public participation in environmental decision-making and 23 countries have enacted freedom of information acts.

Another regional instrument, the Aarhus Convention, covers the European region and has been compared to the Escazú Agreement (notably, the Aarhus Convention is not precisely an environmental treaty, as it does not establish environmental protections; however, it establishes a connection between procedural rights and human rights). Commentators such as the Global Partnership for the Prevention of Armed Conflict have nonetheless recognised the Escazú Agreement as “unique” due to the strong connection it makes between the environment and civil and political rights.

Protection of environmental rights defenders

Recently, there has been a particular shift in recognising the need for the protection and promotion of environmental defenders. This has become evident through the negotiation of landmark agreements where the link between the protection of the environment and human rights has been explicitly recognised.

The Escazú Agreement is the first agreement to provide specific recognition of rights for environmental defenders, by including provisions to protect and promote environmental rights defenders and by distinguishing itself as a “legal instrument for environmental protection, but it is also a human rights treaty” in its preface. During the seventh session of the Working Group for the development of the BHR Treaty, which took place in October 2021, delegations and NGOs discussed abuses in the context of business activities, especially environmental matters and violence directed against individuals, communities and human rights defenders. During those sessions, a number of delegations called for the explicit recognition and protection of environmental human rights defenders.

In October 2021, the United Nations Economic Commission for Europe (UNECE) Meeting of the Parties to the Aarhus Convention, during the 48th regular session of the Human Rights Council, agreed to establish a new, legally binding mechanism to ensure the protection of environmental defenders. The mechanism will be the first to safeguard environmental defenders within a legally binding, intergovernmental framework, as it will establish a Special Rapporteur charged with responding to alleged violations from those experiencing, or under imminent threat of, harassment, penalisation or persecution for seeking to exercise their rights under the Aarhus Convention (UN Human Rights Council Resolution 48/14). This coincides with the recent Resolution 48/13 adopted by the Human Right Council which recognised a clean, healthy and sustainable environment as a human right, for the first time. The resolution was passed with only four abstentions.

Noteworthy developments from COP26

While heavily criticised as having had limited effect, in November 2021, COP26 issued a call to action on the urgent need to protect communities and natural habitats from the impact of climate change. Additionally, COP26 has called for the international community to unite and support those most vulnerable to the consequences of climate change while recognising that indigenous and vulnerable groups are most often the victims, though (very often) those same groups will have made only First published on the Global Arbitration Review website, 15 February 2022 minimal contribution to environmental degradation compared to other communities. Reaching an agreement on the implementation of the Paris Rulebook remained a priority during COP26 and was finally completed on 11 November 2021. This has kept the Paris Agreement targets alive, after six years of negotiations. The next meeting, COP27, shall be indicative as to how well these regional instruments have worked in conjunction with the Paris Agreement.