It is the first environmental agreement in Latin America and the Caribbean, whose negotiation was mainly driven by Costa Rica and Chile, countries that, curiously enough, have not ratified it.
UN Secretary-General Antonio Guterres said that the Escazu Agreement aims to "combat inequality and discrimination and ensure the rights of all people to a healthy environment and sustainable development, with special attention to people and groups in vulnerable situations and placing equality at the centre of sustainable development".
So we can say that this is an effort by the governments of one of the most biodiverse regions in the world to finally take an interest in tackling the climate crisis. It makes sense if we look at the fact that Latin America bears the brunt of natural disasters, a situation that will only get worse as the climate crisis progresses.
It is also the first treaty in the world to specifically address the rights of environmental defenders. This is no small feat, as the region is particularly hard hit by violence against environmental defenders.
In fact, according to data from the organisation Global Witness, Latin America is home to six of the seven countries where the most human rights and environmental leaders were murdered in 2019. In Costa Rica, the case of Jairo Mora still shakes the collective memory, but it is far from being an isolated situation. But let's let the numbers enlighten us.
These are Colombia with 64 environmental defenders murdered, the Philippines with 43, Brazil (24), Mexico (18), Honduras (14), Guatemala (12) and Venezuela (8). Of these countries, only Mexico has ratified the agreement.
From a formal point of view, the agreement is a clearer development of agreement 10 of the 1982 Rio de Janeiro Declaration, which states that people have the right to access information on projects that may endanger the environment, such as mining operations, real estate projects or trawling.
Its importance, then, lies in the fact that it is a concrete multilateral action focused on protecting the environment, covering the people who fight for it and allowing communities to be informed about the projects that affect their environment.
What are its main aspects?
Article 1 of the Escazú Agreement states that:
"The objective of this Agreement is to guarantee the full and effective implementation in Latin America and the Caribbean of the rights of access to environmental information, public participation in environmental decision-making processes and access to justice in environmental matters, as well as the creation and strengthening of capacities and cooperation, contributing to the protection of the right of every person, of present and future generations, to live in a healthy environment and to sustainable development".
Indeed, the three main proposals of the Agreement are: access to information, public participation and access to justice in environmental matters.
Regarding the first of these aspects, it should be made clear that any human activity has an impact on the environment. That is why it is essential, before it is implemented, to know what the effects of a given industry on nature will be, how we can mitigate them and whether there are less harmful alternatives to achieve certain objectives. This is why it is key to have reliable, quality and accessible information for all those who may be affected by a certain project or business activity.
In terms of participation, the aim is to include the community in the process of adopting and implementing a business activity to be developed. In this case, we can think of indigenous communities, many of whom live in places with coveted natural resources. In other words, the aim is to enable people to have real influence in decision-making on different projects. Something that, in democratic societies, should not be so vehemently opposed, but we will return to this point in the next section.
Finally, access to justice in environmental matters, as announced at the outset, is of central importance in Latin America. Especially if we see that the majority of crimes against environmental defenders remain unpunished. Not to mention the claims that some industries have wreaked havoc on communities.
It could be argued, then, that the Escazú Agreement is a measure of good sense or a matter of common sense. However, it has faced strong opposition from some business sectors. As Professor Nicolas Boeglin points out:
"Rarely has an international treaty unleashed a disinformation campaign like the one faced by the Escazú Agreement. The campaign has been orchestrated by some sectors and some business leaders, who have been helped by some like-minded media outlets and their local repeaters, as well as by some legal professionals. This explains (at least in part) the fact that, three years after its adoption in Escazú, the Agreement has only been ratified by 12 States (out of a possible 33 States Parties)".
But the important thing is, why is this happening? Let's take a closer look.
Why is the Escazú Agreement so controversial?
As announced from the outset, Chile and Costa Rica, the main promoters of the agreement, have not ratified it. In the Chilean case, Carolina Schmidt, Chile's Minister for the Environment, argued that the final text of the agreement (which was promoted by her country) was ambiguous and that it was "supra-legal". This argument is very important, because it was taken up by some of the Costa Rican sectors opposed to the treaty.
However, such claims do not make much sense from a legal point of view. For international human rights agreements always take precedence over national legislation, so that to oppose a treaty on this ground is to ignore the subject matter. This is not surprising, but intrinsic to any instrument of this nature. In simple terms, it would be like wanting to buy a car and then objecting at the time of signing the contract because you have to pay for it.
In any case, it is worth noting that the aim is precisely for the countries that adopt it to adapt their legislation to achieve the goals of information, participation and justice explained in the previous section.
In the case of Costa Rica, the UCCAEP is perhaps the most fiercely opposed to the agreement. Its main objections include:
- An inadequate public participation mechanism is created.
- It does not add anything new to the country's existing mechanisms for public participation.
- Faced with an accusation of environmental damage, it is the company that must prove its innocence, thus disregarding the principle of innocence in the Political Constitution.
- Precautionary measures can affect production.
As far as the first two allegations are concerned, the first thing to say is that they are completely contradictory. In other words, you cannot create something new and say that you are not contributing anything new at the same time. In any case, what the agreement rescues is people's participation in projects that are going to affect them directly. For example, a dam or the establishment of a mine in a place, ensuring that those who live there have a say in it.
The aspect of the presumption of innocence seems mischievous from the outset, as it is an obvious confusion of issues. This guarantee is reserved for criminal law, but not for other areas of law. In other words, there is no infringement of the Constitution if a company that is going to build a hotel on the beach is asked to prove that it has not encroached on a protected area.
And finally, as far as production is concerned, the first thing we must make clear in no uncertain terms is that private profit cannot be placed above the welfare of the community. In other words, as in the cases of trawling or open-pit mining, money cannot be the overriding value, above life or nature. Indeed, this is protected in Article 50 of the Constitution, which guarantees the right to a healthy and ecologically balanced environment.
By any standards, the arguments against the Agreement do not hold water.
Conclusions
Ben Leather, attempted to summarise the issue as follows: "companies need to implement policies to ensure that their investments and operations do not affect the rights of communities and are not contributing to attacks on environmental defenders".
The climate crisis is real and its effects are beginning to be felt. In the face of this, the international community must seek to work together to change the course of things. Failure to open our eyes to this reality only makes the problem worse.
Therefore, the arguments for opposing the agreement have no basis beyond the protection of production over nature. We have seen that this international instrument simply seeks to change this situation in the region where most environmentalists are killed in the world. It also seeks to give a voice to the communities from which the resources that generate so much wealth are extracted, and to ensure that the general public has clear information about industrial and commercial projects that are related to the environment.
The Escazú Agreement was promoted by Costa Rica, and the fact that it has not been ratified despite the fact that it has already entered into force leaves a poor image of the country in the eyes of the international community. Furthermore, in view of the crimes that environmentalists have suffered, we can only think of the urgency of implementing greater protection mechanisms.
That is why the Escazú Agreement is important. For a country that lives off nature and has so many environmental resources, not to be part of it is a luxury we cannot afford. It is time to be consistent and rise to the occasion.
- Cited by https://ciarglobal.com/acuerdo-de-escazu-para-la-defensa-de-derechos-humanos-en-asuntos-ambientales/
- Escazú Agreement, article one.
- Boeglin, Nicolás in: Expert voice: Escazú without Costa Rica? As strange as it sounds (ucr.ac.cr)
- https://www.france24.com/es/programas/medio-ambiente/20210428-acuerdo-de-escazu-camino-america-latina
- https://www.uccaep.or.cr/index.php/comunicados-prensa/60-comunicados-de-prensa/660-acuerdo-de-escazu-va-en-contra-de-la-seguridad-juridica-de-las-empresas-y-la-reactivacion-economica.html
- Ben Leather, at https://es.mongabay.com "environmental defenders murdered".
