Dr Domenico Giannino, visiting fellow at the Institute of Latin American Studies, looks back on the Escazú Agreement, the world’s first legally binding treaty on environmental democracy that compels states to investigate and punish killings and attacks on people defending their land or environment.

On 4 March 2018, The Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters was adopted at Escazú, Costa Rica. It contained the ambitious objective of fully guaranteeing the rights of access to information and justice in environmental matters, and public participation in environmental decision-making.

The Escazú Agreement, the first regional treaty of the UN Economic Commission for Latin America and the Caribbean (ECLAC), concluded a long process that started at the 2012 Earth Summit. Also known as Rio 2012 or Rio+20, it is where 10 of the signing states adopted an important political declaration on the application of the famous Principle 10 of the Rio Declaration on Environment and Development (1992).

In fact, the deepest roots of the Escazú Agreement is in the idea of environmental democracy. Conceived in Rio 1992 as the essential groundwork of sustainable development, it is based on the ‘holy procedural trinity’ of Principle 10: participation of all concerned citizens; appropriate access to information concerning the environment that is held by public authorities; effective access to judicial and administrative proceedings.

Despite its formally non-binding legal nature, principle 10 has had the undeniable merit to have triggered a more transparent, inclusive, and accountable decision-making in environmental matters. Indeed many of the national and international legal instruments, recognising the access rights, have flourished. For instance, the European Aarhus Convention, which has served as a prestigious example for the Escazú Agreement, represents, in the words of Kofi Annan, ‘the most ambitious venture in environmental democracy undertaken under the auspices of the United Nations’, whose ‘adoption was a remarkable step forward in the development of international law’.

The Escazú Agreement is conceptually built around four procedural pillars: accessibility of environmental information (articles 5 and 6); public participation in the environmental decision-making process (article 7); access to justice in environmental matters (article 8); and strengthening of national environmental capacities and cooperation between the member States (articles 10 and 11).

These four procedural pillars are interpreted in the light of the Latin American and the Caribbean peculiarities. In fact, a particular emphasis is placed on the multiculturalism of the peoples of the region and on the role of the public and human rights defenders in environmental matters.

With regard to the multicultural approach of the Agreement, the access to environmental information (article 5.4) and the participation in the environmental decision making (article 7.14 and 7.15) shall be facilitated for persons or groups in vulnerable situations, namely indigenous peoples and ethnic groups.

These provisions link the participation rights to the rights of the indigenous communities, which have historically suffered the injurious effects of the environmental damages. By offering specific means for the protection of their access rights, the Agreement highlights the need to prevent any form of discrimination.

Turning to the protection of environmental activists, Latin America has a reputation for being the most dangerous region for land and environmental activism. Consequently, the Escazú Agreement is the first binding international treaty containing specific means of protection for human rights defenders in environmental matters.

In fact, the member states have the obligation not only of guaranteeing ‘a safe and enabling environment for persons, groups and organizations that promote and defend human rights in environmental matters, so that they are able to act free from threat, restriction and insecurity’, but also to punish any violation of their human rights (article 9). Even though they were already bound by their constitutional norms and the obligations deriving from the supranational human rights protection systems, to protect the human rights of the people within their jurisdiction, the above provision is extremely meaningful from a political standpoint. Indeed, the parties commit to make further efforts to overcome the outrageous trend of widespread human rights violations against environmental defenders.

The human rights imprinting of the Escazú Agreement is highly prominent, especially since the majority of the signing states are also members of the Inter-American System of Human Rights. Therefore, it appears very likely that a continuous political and judicial dialogue will be established between the institutional bodies created by the Agreement (Conference of the Parties and the Secretariat) and the organs of the Inter-American Human Rights System (namely the José Court, especially after its groundbreaking advisory opinion OC-23/17, and the Commission).

This is all the more so when we reflect on the creation by the judicial and political institutions of the region of a groundwork of common environmental substantial and procedural principles, with the aim to guide the political decision-makers towards a full protection of the fragile equilibrium of the Latin-American ecosystem and of the life of the most disadvantaged communities.

Dr Domenico Giannino is a visiting fellow at the Institute of Latin American Studies at the School of Advanced Study, University of London, and a lecturer in International Law at INSEEC U. London. His current research focuses on the relationship between human rights and the protection of the environment. His most recent articles include In the name of Charlemagne: is the Aachen treaty a tempest in a teapot?; The commons: an innovative basis for transnational environmental law in the era of Anthropocene? The case of Latin America; Are we looking up or are we looking out? The transnational constitutionalism of the Inter-American Court of Human Rights: conventionality control and the fight against impunity. He is also editor and founder of InCalabria.net.