After several years of negotiations, in March 2018 the first environmental treaty for Latin America and the Caribbean, the Regional Agreement on Access to Information, Public Participation and Access to Justice in Environmental Matters, known as the Escazú Agreement, was approved. CIVICUS speaks about the significance of this agreement for civil society with Aída Gamboa, specialist in Derecho, Ambiente y Recursos Naturales (DAR). Founded in 2004, DAR is a civil society organisation that is committed to building and strengthening environmental governance and promoting the exercise of human rights in the Amazon Basin. DAR focuses on issues of environmental policy and legislation, indigenous peoples’ rights, climate change and investment and good governance in the areas of infrastructure and extractive industries. It participated in the process leading to the Escazú Agreement, and currently works for its ratification by the state of Peru.
What is the Escazú agreement? What is its significance for environmental rights defenders and civil society in Latin America and the Caribbean?
The Escazú Agreement is the first environmental human rights treaty in Latin America and the Caribbean. It was approved in March 2018 after a negotiation that lasted about six years. It develops Principle 10 of the 1992 Rio Declaration on Environment and Development, which seeks to ensure access to information, citizen participation and access to justice in environmental matters. The Escazú Agreement develops these three rights and aims to promote better governance of natural resources in the region. Twenty-four states approved its final text in March 2018, in the Costa Rican town of Escazú, where the last of the nine meetings of the Negotiating Committee was held.
The Escazú Agreement incorporates several innovative elements. First, it has a specific provision on environmental human rights defenders (HRDs) that is unprecedented in the region. Second, it enshrines a rights-based approach toward indigenous peoples and vulnerable populations, with provisions to favour access to information, participation and access to justice by these groups. Third, it also responds to the spirit of the United Nations’ (UN) Guiding Principles on Business and Human Rights regarding companies’ specific obligations to respect human rights in the context of their activities.
For the part of civil society that has been involved in the process, this agreement is the result of many years’ worth of work to promote access to information and environmental transparency, in a context where lack of participation and information about the environmental impacts of extractive and infrastructure projects are at the heart of much of the region's many socio-environmental conflicts. One of the main conflict hotspots is the Amazon region, where affected populations demand greater participation in decision-making, from the planning stages onwards, regarding any natural resource exploitation activity - an element that is addressed in the Escazú Agreement. In addition, two key elements of the agreement are the use of translators into other languages and cost-free guarantees to ensure access to justice, which is essential in these conflicts.
As repeatedly highlighted by Amnesty International, CIVICUS, Front Line Defenders and Global Witness, dozens, even hundreds of environmental and indigenous HRDs are killed every year in Latin America. According to the most recent Global Witness report, out of the 207 murders of HRDs documented worldwide in 2017, 60 per cent took place in Latin America. That was the deadliest year on record for Latin American socio-environmental HRDs. The Escazú Agreement seeks to reinforce the rights that are at the centre of the conflicts, repression and threats, coming both from governments, private companies and other actors, faced by HRDs the region.
In many countries of the region, legislation is used not to protect rights but to criminalise the communities and activists who mobilise in reaction to the violation of their rights to be consulted when projects that affect them are implemented. In Peru, for example, cases are still open against leaders of the Baguazo, an indigenous mobilisation the repression of which yielded dozens of fatalities in June 2009. Another tragic case was the murder of Edwin Chota, an indigenous leader who for 10 years had denounced the threats that he received for speaking up against illegal activities such as logging. The Escazú Agreement seeks to respond to this context. In this sense, it is worth noting that on the last day of the negotiations a tribute was paid to Berta Cáceres on the second anniversary of her murder, as well as to all HRDs who died defending their rights to territory and the environment.
How was civil society involved in the development of the agreement?
In November 2014, the 10 states that had signed the Declaration on the application of Principle 10 in 2012 decided to begin negotiating a regional agreement. To this end, a Negotiating Committee was established, which was eventually formed by the 24 signatory states of the agreement. In 2014, the decision that established the Negotiating Committee mandated public participation in the process. To make participation possible, the Economic Commission for Latin America and the Caribbean (ECLAC), which functioned as the Technical Secretariat of the negotiation process, established and coordinated the Regional Public Mechanism. More than 2,000 individuals and organisations registered with the mechanism to receive periodic information about the process and participate in the virtual and face-to-face meetings of the Negotiating Committee.
DAR participated through the Public Mechanism since 2015, first virtually and since 2016 more intensively, taking part in the face-to-face meetings. In March 2015, all of us who were registered voted electronically for the election of representatives for the Public Mechanism. Two representatives and four alternates were elected for a two-year term and had the right to participate in the meetings of the Negotiation Committee, working groups and any other spaces that might be established. This form of participation has been recognised internationally as a high standard of participation in international negotiations.
The Public Mechanism gave civil society a voice but no vote: civil society representatives could participate in the meetings alongside country delegates, but they did not get to vote in the decision-making process. However, in practice civil society had a lot of influence, as it was able to bring to the table the proposals previously agreed among a large number of organisations, distribute them to the delegates and present them in the meetings. Civil society was able to influence the positions of many government delegates, and many of its proposals, although not all of them, were incorporated.
Thanks to the financial support of international foundations, it was possible to institutionalise a network of more than 30 civil society organisations (CSOs), known as the LACP10 network. In 2016, a first meeting was held in Panama to contribute strategically to the base text proposed by ECLAC. It was during that year that more in-depth discussion of the articles on access to information, participation and access to justice began, so discussions were more intense. All of us who participated in the face-to-face meetings had the right to speak on behalf of the public and to participate in all spaces. This was achieved thanks to close coordination work between civil society and elected representatives.
The civil society network made comments and observations on all the articles of the text proposed by ECLAC, as well as on its later versions. The text was also distributed to all contacts and allies of the network’s member organisations and their contributions were collected. Therefore, when they participated in the negotiation meetings, civil society representatives brought comments from all the organisations of the region that had been involved. We also had a communications and alliances strategy with international CSOs to make the agreement more widely known and discussed.
The work of civil society with the governments that participated in the process had continuity and went beyond interaction with government delegates in the course of the negotiations. In each country, civil society focal points met periodically with officials of their respective governments. In Peru, DAR and the Peruvian Society of Environmental Law worked closely with the ministries of the Environment and Foreign Affairs to bring them the proposals of national and regional civil society and ensure that Peruvian delegates integrated them within the national proposal. This resulted in more consistent positions at negotiation meetings. In general, there was a lot of interaction between civil society and various governments, although public officials in some countries were more reluctant to receive proposals from civil society.
Did society make a difference to the final agreement? What is in the agreement that would not be there if it were not for civil society advocacy?
The work of civil society made a huge difference. The issue of HRDs was a civil society proposal that was not present in the first version of the agreement. This has undoubtedly been the greatest achievement and a historic milestone for environmental democracy, because no other international treaty has provisions for the protection of HRDs. The same goes for the inclusion of people in situations of vulnerability: we worked hard on a definition and pushed for its inclusion in the text of the agreement.
It was also civil society that promoted standards of socio-environmental information that should be disseminated to the wider public. We fought hard because there were many points states did not want to include, such as the registration of polluting agents or the dissemination of information on risks and environmental impact assessments, which were eventually included. It was also civil society that promoted the incorporation of preventive, precautionary and non-discrimination principles. In addition, a lot of work was done so that the definition of the public was as wide as possible. And civil society pushed so that the agreement would not allow for reservations. While we did not get everything we wanted, we are satisfied with the results we achieved.
It must be recognised, however, that the negotiation process was typically characterised by the presence of more or less large CSOs from each country, while the participation of the communities and HRDs whose rights the agreement seeks to protect was very limited. We would have wanted more indigenous leaders to have a voice in the negotiations, but there were great limitations on funding for participation in the regional process, which we were only partially able to counter by seeking greater participation in national processes and through virtual networks.
A Peruvian indigenous leader and Goldman Environmental Prize winner, Ruth Buendía, participated in the fifth round of negotiations, held in Chile in 2016. Another indigenous leader, Lizardo Cauper, president of the Interethnic Association for the Development of the Peruvian Jungle, was present at the celebration event of the agreement, held in New York in September 2018. Their participation was itself the result of civil society’s coordination efforts. During the ratification process, we want to move in that direction and continue to involve not only more organisations and activists, but also specifically more grassroots organisations, local social movements and indigenous leaders.
How is civil society now campaigning for states to ratify the agreement?
All participating CSOs pledged to promote the signature of the agreement by the governments of their countries and its ratification by their legislatures. In September 2018, civil society participated in an event with ECLAC to celebrate the agreement and mark the beginning of the signing period. Fifteen states signed the agreement in September 2018 and Bolivia joined in November.
Soon we will set up an advocacy strategy so that the process of signature and ratification, which will be open for the next two years, proceeds faster. So far, each country’s CSOs are working domestically according to their possibilities, in connection with the coordinated strategy that we are already starting to prepare through virtual exchanges. In Peru, we have already had meetings with officials from the Environment and Foreign Affairs ministries, as well as with congresspeople involved in the process. Our country signed the agreement in September 2018 and we hope that the congressional committee of Foreign Affairs will examine it soon so that the plenary can go on and debate and ratify it. The same is happening in other countries, with communication campaigns for dissemination of the agreement and advocacy actions with the executive and legislative branches of government. Progress varies from one country to the next: in Argentina, for example, the process has been faster and a ratification bill has already been drafted; the government of Costa Rica in turn has already publicly indicated that it will ratify the agreement.
What else is needed to ensure the rights of environmental rights defenders?
This agreement will help guarantee the rights of environmental HRDs and we hope that in the course of the next two years at least 11 states will ratify it so that it can be fully implemented in every country. However, it will take more than an international agreement to guarantee the rights of environmental HRDs effectively.
In 2018 Peru approved a National Human Rights Plan that has strong links to the Escazú Agreement, since it includes several procedures for the protection of HRDs, such as a national complaints registry and an early warning system. We also have a specific national plan on business and human rights. Many of these points are contemplated not only in the Escazú Agreement, but also in proposals made by the Inter-American Commission on Human Rights (IACHR) and various UN agencies.
In every country, the work of the judiciary will be key. In Peru, with the support of DAR and other CSOs, the judiciary has been carrying out various initiatives to strengthen environmental justice, such as training programmes on environmental issues, international congresses on environmental justice, the creation of an Environmental Justice Observatory on environmental crimes and the establishment of courts specialised in environmental matters. The process began in the Amazonian regions, where there is a greater prevalence of environmental conflicts, and will integrate intercultural elements.
In sum, there are many mechanisms that countries can implement independently of the Escazú Agreement to identify who are the people and communities suffering from human rights violations, follow up, take preventive and sanctioning measures against the threats they face, and disseminate a human rights perspective in the business sector.
What support do environmental rights defenders in Latin America and the Caribbean need from the international community?
DAR is currently supporting the Programme on Indigenous HRDs of the Amazon Basin implemented by the Coordination of Indigenous Organisations of the Amazon Basin. This programme combines documentation, training of leaders, advocacy in regional and international human rights organisations and legal counselling for criminalised HRDs.
The international community can support this work from different angles: amplifying reports of abuses, carrying them to forums such as the IACHR and the Inter-American Court of Human Rights, and following up on the implementation of the recommendations made to states by international agencies. It is important to involve international human rights bodies in these processes and have them present on site.
For instance, in March 2017, DAR and five other CSOs requested a hearing on transparency in the extractive sector in the Dominican Republic, Guatemala and Nicaragua. The hearing documented restrictions on access to information in specific cases of investment projects, included testimonies of those affected by violations of the right to access to information, and emphasised that these restrictions in turn affected the exercise of rights to consultation, participation, health and a safe environment, among others. As a result of this hearing, a collaborative effort now exists between civil society and the IACHR, and the IACHR has committed to producing a document with recommendations on access to information in extractive contexts. Alerted by the reports of violations of rights made at the hearing, when the IACHR visited Guatemala, the commissioners travelled to the area where the reported violations were taking place.
Coordination of efforts is key to achieving greater impact. A good example of this has been the Escazú process, where international support and the coordination between regional and domestic processes consolidated civil society work. In addition, several UN rapporteurs called on all states in the region to sign and ratify the agreement soon, which may have influenced several states that signed it.
In the context of the ratification process, it will be essential for international civil society to contribute to disseminating the efforts of civil society in each country and at the local level. In Peru we are working so that citizens know the contents of the agreement. We believe there is a need to expand participation and we are making efforts to bring the agreement contents and the ratification process to the subnational level.
Read our interview with Marcos Orellana, director of the Environment and Human Rights Division at Human Rights Watch about the significance of the Escazú Agreement