By: Henry Smith, Junior Research Associate, PILPG-NL
The Escazú Agreement, the Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean, entered into force on April 22, 2021, Earth Day. The treaty is the first binding instrument on environmental issues adopted in the region, and it is the first treaty ever to include human rights provisions protecting environmental activists. Although the treaty proclaims an advancement of environmental and human rights protection, few states have ratified it. This blog will examine how the agreement’s provisions extend the human rights protection of environmentalists and indigenous groups, and whether it can aspire to be effective considering the absence of key states from the treaty.
The agreement
The Escazú Agreement originated from the 2012 United Nations Conference on Sustainable Development in Rio de Janeiro (Rio+20). States concluded negotiations on the agreement in March 2018, in Escazú, Costa Rica, under the auspices of the UN Economic Commission for Latin America and the Caribbean (ECLAC). The objective of the agreement is to implement Principle 10 of the 1992 Rio Declaration on Environment and Development, which provides that states should facilitate access to information and public participation in decision-making related to environmental issues, as well as provide access to effective judicial means of redress for environmental harm.
The two main innovations of the agreement, as noted by commentators, are the provisions that link environmental protection to human rights and the provisions protecting environmentalists.
Human rights and environmental protection
Article 1of the Escazú Agreement recognizes the link between human rights and the protection of the environment. It explicitly notes that the treaty’s objective is to “contribut[e] to the protection of the right of every person of present and future generations to live in a healthy environment and to sustainable development.” Furthermore, Article 4 imposes on states the obligation to guarantee the right to a healthy environment and other universally recognized rights related to the agreement.
The Inter-American Court of Human Rights, in the case of Lhaka Honhat (Nuestra Tierra) v. Argentina, had previously already elevated the right to a healthy environment to a human right. Its introduction into the agreement represents a codification of the norm’s human right status. In fact, the agreement goes one step further by extending the human right to a healthy environment to future generations and by including sustainable development as a human right.
The protection of environmental human rights defenders
Article 9 of the Escazú Agreement provides that states shall guarantee the safety of environmentalists to promote and defend human rights in environmental matters, free from threat, restriction, and insecurity. Additionally, the provision requires that states recognize, protect, and promote environmentalists’ right to life, integrity, and freedom of expression, assembly, and movement. Furthermore, it confers upon states the obligation to take effective measures to prevent, investigate, and prosecute attacks and threats to environmentalists.
The objective of these provisions is to impose on states the obligation to combat attacks and threats directed at environmentalists, which have been on the rise in Latin America. According to a report, more than half of the environmentalists killed worldwide in 2018 were from the region. At the same time, the lack of effective mechanisms to seek accountability and justice causes many of these cases to go unpunished.
The absence of key states
While the agreement provides promising innovations for the protection of the environment and environmentalists, the lack of ratification by important states might negatively impact its effectiveness. Of the 24 states that signed the agreement, only 12 have currently ratified it. The list of states that have not ratified the treaty include Colombia, Brazil, Guatemala, and Honduras. These are four of the five states with the highest number of environmentalists killed in the region. In Colombia alone, 64 environmentalists were killed in 2019. If these states do not ratify the agreement, it will likely produce modest effects, limited to few parts of the Latin American region.
Concluding remarks
The Escazú Agreement recognizes the right to a healthy environment and the right to sustainable development as human rights. It also establishes binding obligations for states to protect environmentalists from increasing attacks. These provisions present an encouraging and innovative approach to dealing with the lack of accountability within Latin American states’ domestic legal systems. However, the ratification of the treaty by the states with the highest rates of attacks on environmentalists, including Colombia, Brazil, Guatemala, and Honduras, might be an important precondition for the treaty’s effectiveness.