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Environmental rights and conflicts over raw materials in : the Escazú Agreement is ready to come into force in 2021 Maihold, Günther; Reisch, Viktoria

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Empfohlene Zitierung / Suggested Citation: Maihold, G., & Reisch, V. (2021). Environmental rights and conflicts over raw materials in Latin America: the Escazú Agreement is ready to come into force in 2021. (SWP Comment, 4/2021). Berlin: Stiftung Wissenschaft und Politik - SWP- Deutsches Institut für Internationale Politik und Sicherheit. https://doi.org/10.18449/2021C04

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NO. 4 JANUARY 2021 Introduction

Environmental Rights and Conflicts over Raw Materials in Latin America The Escazú Agreement Is Ready to Come into Force in 2021 Günther Maihold and Viktoria Reisch

On 5 November 2020 ratified the so-called Escazú Agreement, a treaty between Latin American and states on establishing regional transparency and environ- ment standards, as the eleventh country to do so. The prescribed quorum of ratifica- tions has thus been attained, and the agreement can come into force in 2021. This will launch an innovative multilateral instrument that is intended to create more citizen par- ticipation and improve the assertion of citizens’ rights in environmental matters. In Latin America, economic interests dominate when it comes to the exploitation of raw materials; furthermore, there is a large number of conflicts over resources. The agree- ment thus offers affected indigenous tribes and human-rights defenders more oppor- tunities for information, participation and access to the justice system in environmen- tal matters. Despite this binding first step, some leading countries in the region have so far failed to ratify the agreement. Many of them are reluctant to join, arguing that certain provisions violate their national sovereignty and their freedom of decision. For Germany and Europe, the agreement offers new leverage for drafting supply chain laws.

By the end of 2020, a total of twelve Latin The agreement, concluded in Escazú American and Caribbean countries had () in March 2018, is based on Prin- ratified this “Agreement on Access to Infor- ciple 10 of the 1992 Rio Declaration on En- mation, Public Participation and Justice vironment and Development, which estab- in Environmental Matters in Latin America lishes transparency, participation and access and the Caribbean”. The “Escazú Agreement” to justice for citizens impacted by environ- is considered a breakthrough in efforts to mental problems. It was signed in 2018, safeguard environmental rights. The region after four years of tough negotiations be- has a long history of destroying ecosystems tween 24 countries in the region. The ratifi- while exploiting natural resources for cation process, which began in September export (extractivism). The socio-ecological 2018, is proving to be just as difficult. conflicts associated with this form part of Mexico’s ratification ensured that the the context of lasting violence on the sub- quorum was reached for the agreement to continent. come into force in 2021. However, impor-

Map 1

tant countries such as , Chile, and The Four Pillars of the Venezuela, which are active extractors and Escazú Agreement exporters of raw materials, have not yet fol- lowed suit. On the contrary: there is massive The agreement creates a joint regional legal resistance, especially from business sectors, framework that brings together four ele- to the scope of the regulations, which are ments to enable new forms of sustainable seen as interfering in national sovereignty. development in Latin America: access to It has been claimed that, with the agree- environmental information; the right to ment in effect, countries would no longer participation; access to justice for citizens be able to make independent decisions affected by resource exploitation; and pro- about how their territories are used. Some tective mechanisms for environmental parliaments, for example in Peru and Para- activists. The principles of prevention, pre- guay, have therefore removed the issue caution and monitoring are thus connected from their agendas. However, other coun- to legal guarantees by environmental and tries, including , have initiated social impact studies and compensation for ratification processes and can be expected damage. The agreement is intended to have to join. a preventative effect and specifically pre- empt the escalation of socio-ecological con- flicts into open violence.

SWP Comment 4 January 2021

2 The Escazú Agreement is the first from intimidation and hostility as much document in the world to stipulate pro- as from threats to life and limb. cedural safeguards to protect activists who campaign for the preservation of natural resources. The agreement therefore also Socio-Ecological Conflicts exceeds the European Aarhus Conven- tion from 1998. By conferring the rights Since the turn of this century, (civil-society) of information, participation and legal organisations and academics have been protection on individuals, Latin America recording a rise in land and environmental will simultaneously expand possibilities conflicts in Latin America – initially pri- for implementing international and marily in the Andean countries, but since national environmental standards more the 2010s in all Latin American states with- lastingly. out exception. In the Environmental Justice The participatory formats stipulated Atlas, Latin America leads the world in the in the agreement are intended as means number of environmental conflicts. for conflict prevention and for upholding Socio-ecological conflicts refer to the fundamental human rights, such as those mobilisation of usually local communities already contained in Convention 169 of or civil-society organisations against eco- the International Labour Organisation (ILO; nomic activities whose environmental short form: ILO 169) for the protection of consequences are a key element of their indigenous peoples. They are meant to lay complaints. Typical expressions are protest down regional minimum standards. Every marches, squatting, street blockades or country has to accept the formulated norms hunger strikes. The term “environmental so as to guarantee the exercise of the rights conflict” will here be used mostly synony- referred to. The norms are to be met by mously with “socio-ecological conflict”. states implementing measures to improve Restrictions on reporting and monitoring their national institutions; they also have to mean that the number of unreported cases create mechanisms to manage information in other parts of the world is expected to be and optimise decision-making procedures substantial; nevertheless, statistics indicate that include intercultural and gender-spe- that many countries in the Americas are cific approaches. In particular, signatories experiencing more conflicts. The mining commit to preventing environmental dam- sector is particularly conflictual. Over 40 age and ensuring that environmental rights percent of the environmental conflicts in are respected. Crucially, this includes busi- the continent’s ten most conflict-ridden nesses: public and private companies (espe- countries are linked to extraction of min- cially large companies) are to draw up sus- erals (see Chart). Sources also indicate that tainability reports to disclose their social violence is escalating in other sectors, for and ecological record. instance in energy production, which is Current reality is far removed from this. closely linked to energy-intensive mining. Often, deposits are identified and developed Alongside economic issues such as no rise without the local population being involved in employment in the productive sector, or consulted. Transparency imperatives are dependency on the price of raw materials also violated in information on the projects’ on the world market, and high ecological environmental impact, long-term effects costs, there are also a large number of and emissions; possibilities for lodging com- related social divides. Rarely can a conflict plaints are systematically subverted. The resulting from extractivism be categorised agreement’s ultimate objective is therefore as a single-issue conflict. Often concerns to transform socio-ecological conflicts, with revolve around the destruction of habitat the particular aim of preventing them from and biodiversity, the displacement or re- turning violent. A further important con- settling of local communities, or obtaining cern is to protect environmental activists an adequate share in the income derived

SWP Comment 4 January 2021

3 Chart1

from resource mining and being involved activists, lists the five most frequent repres- in decision-making processes. sive acts in Latin America: detention of pro- testers, attacks on journalists, intimidation and use of excessive force against protesters, Risks for Land and and detention of journalists. There are also Environmental Defenders subtler forms of restriction, which are often not considered a direct threat, such as poor The group of actors most impacted by such consultation processes, which refuse to give conflicts are those who campaign for land certain groups of people a legal voice, or and environmental rights in Latin America. threats and pressure by companies (includ- They are, to quote the title of the 2015 re- ing state-run companies) to coopt activists port by the international non-governmental so as to pre-empt conflicts in the first place. organisation (NGO) Global Witness, On Dan- The intensity of the violence against human- gerous Ground in Latin America. The report rights defenders can therefore not be meas- calls 2015 the deadliest year for such actors ured by the number of assassinations alone, since it began recording cases in 2002. How- but must also take into account the many ever, subsequent years saw further rises. non-deadly attacks. Numerous Latin American countries Profit interests, which play a key role feature on the list of the most dangerous in the mining of natural resources, are the countries for activists on land and environ- reason for the particularly high risk to land mental issues, above all Colombia, Brazil and environmental defenders in Latin and Mexico. The mining sector, which is America. These interests can gain the upper heavily conflict-laden, also has the highest hand over the duty to protect, especially in number of murdered activists. Defenders a situation where corruption is rampant, of indigenous rights, who are primarily governments are weak, and poverty reigns. concerned about preserving indigenous The above-mentioned reports also repeatedly environmental and territorial rights, are point to the shared responsibility of govern- under disproportionately high pressure. ments and companies. The latter, the reports In the majority of cases, murder victims, say, criminalise land and environmental or their entourage, have previously been activists and prosecute them under the law threatened or attacked. to systematically repress protests. In its annual report, CIVICUS, a global Many countries flout the right of indig- alliance of civil-society organisations and enous peoples to consultation, which is laid

SWP Comment 4 January 2021

4 down in the above-mentioned Convention Chile: A Radical Change of 169 adopted by the International Labour Direction Organisation. Countries that have signed the convention are supposed to secure the Chile had a leading role in the preparations free, prior and informed consent of indig- and negotiations for the Escazú Agreement. enous peoples for investment projects in After about two years of preparation, the the raw materials sector. Most Latin Ameri- Santiago Decision to adopt the prepared can countries have even ratified the con- document was announced in the Chilean vention (with the exception of , capital in November 2014. Chile along with and El Salvador); some have also Costa Rica was awarded the co-presidency absorbed its fundamental principles into for the subsequent negotiations. There were their constitutions. However, there is a total of nine rounds of negotiations over nothing like systematic implementation. the next four years. As with human-rights standards, it is Chile’s U-turn came a few days before often the case that countries with progres- the final text was adopted in early October sive environmental and consultation laws 2018. A vital influence was probably the (such as Brazil or Peru) fail to live up to result of the 2017 presidential elections, their voluntary commitments. However, which saw the centre-left government of extractive interests are not solely respon- President Michelle Bachelet replaced by sible for the injustices: so are the inter- a rightwing-conservative coalition under national community, which has not yet Sebastián Piñera, which attaches greater issued binding rules, and in some cases value to economic interests. national and international development As the main motive for rejecting the banks involved in infrastructure measures agreement, Chile’s decision-makers cur- and projects for natural resource exploita- rently in office cite their concern that Chile tion. Infringements or human-rights vio- might lose sovereignty and be subject to lations are seldom thoroughly investigated; interference in internal affairs and par- legal proceedings or convictions are rare. ticularly in bilateral disputes (for instance This far-reaching impunity perpetuates with neighbouring ). Most recently, the spiral of violence and leads to a loss of the Chilean government argued that confidence in national justice systems. In national legislation already contained all contrast, allowing broad access to informa- the key regulations of the Escazú Agree- tion and involvement in decision-making ment. Special laws for environmental processes has the potential to resolve con- activists, it claimed, would privilege the flicts before they escalate. latter, thus creating unequal treatment of various human-rights groups before the law. It is true that Chile has adopted Resistance to the Agreement legal regulations in areas that are also addressed by the agreement. Not least, Many large countries that play a crucial role these concern large state companies, such in Latin American foreign policies have so as the copper corporation CODELCO. Often, far refused to ratify the Escazú Agreement. however, these national rules only cover Along with Brazil, which has shown no in- parts of the Escazú proposals or are only tention to ratify, they include Peru, which inadequately implemented at best. It is has a particularly high number of land and therefore essential not only to adjust the environmental conflicts, as well as Chile, legislation, but also to create additional where environmental conflicts have been transparency obligations via a national plan increasing for years. This is the more re- for implementing the Escazú Agreement, markable since Chile was one of the initia- and, above all, to ensure that their imple- tors of the agreement. To date, however, it mentation in line with regional standards has not even signed it. can be monitored.

SWP Comment 4 January 2021

5 In December 2019 Chile chaired the UN such as Peru, Chile, Colombia and Mexico Climate Conference (COP25). Many Chilean (which had not yet ratified the Escazú civil-society organisations campaigning for Agreement at the time), who have founded environmental and human rights expected a free trade area within this framework. the government to change its position on Peru therefore argues that it might be at a the Escazú Agreement so as to set an exam- competitive disadvantage and implies that ple on the international stage. Their disap- the countries it names have good reasons pointment was the greater when the gov- for rejecting ratification. ernment vehemently refused to sign the The arguments against the agreement agreement and provided only weak leader- advanced by Chile and Peru are weak. ship for the COP25, which was supposed Article 3 of the Escazú Agreement reiterates to be held in Santiago de Chile, but was re- the principles of a country’s unabated sov- located to Madrid following social protests ereignty over its own natural resources and in the country. of the sovereign equality of all member states. This also includes a country’s free- Peru: Concerns about dom to set its environmental policy autono- Autonomous Action in mously. Mexico’s ultimate ratification and Exploiting Raw Materials the fact that Colombia is moving towards ratifying as well make the argument of a In 2018 Peru’s then-environment minister competitive economic disadvantage base- Fabiola Muñoz was one of the first signa- less. The agreement obliges countries to tories of the Escazú Agreement. The coun- shape their policies according to the duty try was long seen as a strong advocate as to protect laid down in it; this would help well as a candidate for rapid ratification. them deal with international monitoring of Yet the latter kept being postponed during their compliance with labour and environ- parliamentary debates on the treaty. The ment standards. If Chile and Peru were to decision not to ratify the agreement was accept this duty to protect, their reputations ultimately taken in October 2020, overrid- might well benefit since their national legis- ing the Peruvian president. lation would then meet international requirements. Moreover, the associated chances of participating in development The Viability of Criticism of the programmes would make it easier for them Agreement to meet their duty to protect. This is the opportunity but also the chal- Both Chile and Peru argue that their right lenge presented by the Escazú Agreement to sovereignty would be restricted if inter- in the context of new international require- national courts were given jurisdiction. ments to uphold human rights and due dili- They also consider that NGOs are receiving gence. Both Peru with its national ombuds- disproportionately preferential treatment person and Chile, for instance in its National by being given a powerful voice in com- Human Rights Institute, already have in- plaints mechanisms through the right to stitutions tasked with observing and safe- participation laid down in the agreement. guarding basic rights – including in min- This carries the risk, the countries claim, ing with a view to the environment and to that such NGOs could thwart mining and human rights. These enjoy a high degree infrastructure projects that are vital for the of legitimacy in the eyes of the population, national economy. Trade and industry asso- unlike other state bodies. Both countries ciations in particular have expressed grave thus have an institutional basis that would concerns in public statements. They point enable them to keep the commitments set to the rejection of the agreement by other out in the Escazú Agreement and simulta- economically powerful countries such as neously to strengthen their facilities for con- Brazil or members of the Pacific Alliance flict prevention and management.

SWP Comment 4 January 2021

6 The Escazú Agreement and the siderations. It is precisely this complemen- Regulation of International tarity of international, regional and local Supply Chains norm-setting that could steer businesses towards a conduct that exceeds voluntary As a regional agreement, the Escazú Agree- commitments. However, if the expectations ment will establish uniform transnational and commitments to standards do not cor- standards and set in motion a process to relate, this regulatory heterogeneity would offset institutional and legislative asymme- impede efforts to generate greater attention tries among the region’s various countries. and respect for human-rights and environ- The ultimate objective is to achieve the mental standards. highest possible degree of equality between The efficacy of both voluntary and legal countries in the Escazú Agreement’s four regulations is disputed. Extensive standards pillars for protecting, safeguarding and pro- of the kind that the Extractive Industries moting access rights. By proceeding co- Transparency Initiative (EITI) is trying to operatively, the countries involved could establish, for instance, to create more trans- exchange learning experiences and best- parency in finances and more accountabil- practice patterns, which would also im- ity in the raw materials sector, are not at all prove the implementation of, and compli- applied uniformly in Latin America’s ex- ance with, standards. As a concrete expres- tractive countries. Mining-sector companies sion of the 2011 UN Guiding Principles on in particular have additionally implemented Business and Human Rights, the Escazú standards for audit certification on the basis Agreement along with the environmental of agreements already in force – for in- standards set by the American Human stance via quality seals such as the FairTrade Rights Convention (1969) could create syn- standard for gold or silver. However, such ergies to shape a regionally uniform and voluntary standards for corporate respon- binding framework for environmental and sibility should be rolled out with restraint human-rights protection by companies and in favour of increased coherence, which is states. The efficacy of the agreement will ultimately in the companies’ interest too. depend on how robust the legal provisions To date, the rules have frequently not been and financial conditions are (for instance applied to ancillary industries or local pro- for environmental impact assessment duction processes. studies and on how consistently the judi- Along with labour conditions, the main ciary enforces the provisions. focus is on environmental consequences. While Latin America’s manufacturing For instance, in the case of copper extrac- industry is not part of supply chains on a tion, the huge amounts of water used, the large scale, the key focus of regulations like land use, energy use, mining overburden the Escazú Agreement is on the extensive and long-term emissions must also be taken responsibility of companies when it comes into account. The copper industry currently to extracting and processing raw materials. is beginning to record all these factors for Current debates in Germany and Europe on mines and foundries, as part of voluntary supply chain laws are closely followed in monitoring processes; in future, they are to the region, and the challenges that they be collated under the quality seal Copper pose to the corporate or state responsibility Mark. However, these transparency initia- derived from them are discussed with a tives, including complementary general critical eye. The Escazú Agreement ad- mining standards, such as the Initiative for dresses regulatory facts that are also rele- Responsible Mining Assurance (IRMA), fall vant for contemporary debates on designing noticeably short of the Escazú regulations. corporate responsibility. Lawmakers should Moreover, they do not stipulate any sanc- therefore take up the standards formulated tions to enforce due diligence in human in the region (for instance in the Escazú and environmental rights, or to do justice Agreement) and include them in their con- to the duty to protect. The Escazú Agree-

SWP Comment 4 January 2021

7 ment standards have the appropriate regu- latory scope. Germany and Europe should therefore aim to make them binding for both European companies and government cooperation; they should also support imple- mentation. This could be achieved through national action plans for human rights and the environment, as well as reports on the progress made in implementing the agree- ment. © Stiftung Wissenschaft und Politik, 2021 All rights reserved

This Comment reflects the author’s views.

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ISSN 1861-1761 doi: 10.18449/2021C04

Translation by Tom Genrich

(English version of Prof Günther Maihold is Deputy Director of the SWP and leads the SWP contribution to the research network SWP-Aktuell 1/2021) Sustainable Global Supply Chains. Viktoria Reisch is a research assistant in the project “Transnational Governance of Sustainable Commodity Supply Chains in Andean Countries and Southern Africa”. The project is funded by the German Federal Ministry for Economic Cooperation and Development (BMZ).

SWP Comment 4 January 2021

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