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Escazú Agreement: Content and Advantages for Its Implementation in Latin America

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Escazú Agreement: Content and Advantages for Its Implementation in Latin America ENVIRONMENTAL Escazú Agreement: Content and Advantages for Its Implementation in Latin America By Rafael Toledo Plata The Economic Commission for Latin America and the Caribbean (ECLAC) in March 2018 reached the Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean (Escazú Agreement). To date, the Escazú Agreement has been executed by 22 states (including Colombia and Mexico) and ratified by nine states (Antigua and Barbuda; Bolivia; Ecuador; Guyana; Nicaragua; Panama; Saint Vincent and the Grenadines; Saint Kitts and Nevis; and Uruguay). Only two more states need to ratify it before the agreement enters into force. The stated objective of the Escazú Agreement is to guarantee access to environmental information, public participation in environmental decision-making processes and access to environmental justice, in order to guarantee the effective protection of the rights of individuals to live in a healthy environment. These objectives are mainly intended to allow special protection of vulnerable populations and human rights defenders in environmental matters. The Escazú Agreement has the following main topics 1) general objectives and principles; 2) access to environmental information; 3) public participation in the environmental decision-making process; 4) access to justice in environmental matters; 5) human rights defenders in environmental matters; 6) capacity building and cooperation; 7) implementation process; and 8) settlement of disputes. In that order, the Escazú Agreement has three thematic areas that can be summarized as follows: Access to environmental information: a mechanism to guarantee the public's right to access the environmental information held by each state, in accordance with the principle of maximum publicity. This access will include respecting the rules on legal reserve that exist in the domestic legal regimes and guaranteeing disclosure that allows interested individuals to access and understand available information. Public participation in environmental decision-making processes: promotes the implementation of measures by each state which guarantee open and inclusive participation in the processes. For such participation, relevant information must be delivered in a timely manner to individuals. The competent authority of the decision must consider the different insights presented during the participation process. Access to environmental justice with all guarantees of due process: aimed at allowing access to decisions regarding environmental information, actions or omissions related to environmental participation, and any decision that may affect the environment or to the environmental legal order. In these instances, the interested parties may request precautionary measures to prevent, mitigate or compensate the damages that arise or could potentially arise from the alleged wrongdoing. Copyright © 2020 Holland & Knight LLP All Rights Reserved 1 After having reviewed the content of the Agreement, it is possible to conclude that its implementation in Latin America could represent a significant advantage to the extent that: According to ECLAC (CEPAL in Spanish) data, Cuba, Venezuela, Haiti, Suriname, Bolivia and Costa Rica are the only countries in Latin America that do not have freedom information laws. The other countries have legal orders that already include clear rules for access to information (e.g., Colombia includes the possibility of accessing environmental information). In the specific case of Colombia, The Constitution of 1991 and different legal instruments set forth various participation mechanisms to protect rights in environmental matters. For example, there are public environmental hearings (Decree 1076 of 2015) that can be attended by citizens and are intended at publicizing the application for environmental licenses, permits or concessions, or the existence of a project, the impacts that it can generate and the proposed or implemented management measures to prevent, mitigate, correct and/or compensate impacts, among other purposes. This experience can serve as a guideline for other countries in Latin America that do not have clear regulations related to environmental public hearings. The protection of the right to enjoy a healthy environment has constitutional protection in 18 of the 22 states that sign the Agreement (including Colombia and Mexico). This special protection means that citizens are allowed to request the environmental justice protection. The effectiveness of judicial and administrative institutions regarding the protection of the environment in each of the countries that signed the Agreement will have to be determined. The foregoing shows that Latin America is in an advanced position within the region. Since before the signing of the Agreement, Latin America has already implemented mechanisms to achieve the different purposes that the same Agreement seeks. However, Colombia forced itself to implement legal modifications to include adjustments in the preexisting instances and measures to comply with the Agreement (when is applicable). Therefore, it is important that once Colombia decides to ratify the Agreement, it must be able to advance with the applicable modifications in order to avoid any breach of its international obligations under the Agreement. Finally, it is possible to warn that the Agreement before the extractive industries and renewable energy industry may pose a problem for its development in Latin America since it contemplates that all people have the possibility to request information related to these projects, without establishing which cases the holders of these projects may reserve the right to disclose information. Learn more about our Energy and Natural Resources Industry Sector Group. Information contained in this newsletter is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel. Copyright © 2020 Holland & Knight LLP All Rights Reserved 2 .
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