57 - Escazu Agreement in Case Law

Introduction

This blog has previously provided an introduction to the Escazu Agreement (here, which has been cited here). Since then, there have been several noteworthy developments and references to the Agreement in the case law, including on issues concerning participation, access to information, and access to justice.

This post specifically outlines the developments arising from the Antigua High Court, the Caribbean Court of Justice, the Judicial Committee of the Privy Council, and the European Court of Human Rights.

Antigua High Court

On 4 March 2025, the Antigua High Court heard an application for specific disclosure of documents related to a development project at Cedar Tree Point, Barbuda. The application was brought by a non-profit organisation, Global Legal Action Network (GLAN), against the Development Control Authority (DCA) (the statutory planning authority for Antigua and Barbuda) and Abercorn Trust (the developer). The development is situated within a section of the Codrington Lagoon National Park, which is designated as a RAMSAR-protected site. GLAN alleged that the Development Consent Authority failed to follow proper planning procedures in granting the development permit, including publicisation of the decision as required by the law. Accordingly, GLAN argued that the DCA’s failure to disclose documents associated with the development violated the Escazu Agreement. The disclosure application specifically seeks the disclosure of the ‘permit correspondence, development plans, and the Environmental Impact Assessment’ (as reported here). The application was mounted to support an underlying challenge by GLAN to quash the permit.

Judicial Committee of the Privy Council

In Mussington and anor v Development Control Authority and ors [2024] UKPC 3, the Judicial Committee of the Privy Council considered whether the appellants had standing to challenge the grant of a 2018 development permit for the construction of an airstrip on the island of Barbuda.

By way of background, the DCA retrospectively granted a development consent for the development after works commenced on the airstrip around September 2017. At the time, the majority of the Barbudans were not on the island following Hurricane Irma.

The appellants were unsuccessful in their initial challenge to the approval of the project and for an application for an interim injunction to stop the construction. In September 2018, the appellants made a fresh application to the High Court for an interim injunction, which was refused. The Court of Appeal rejected the appeal but allowed the respondent’s counter-appeal on the ground that the appellant had no standing to apply for judicial review. The case was appealed to the Privy Council.

In allowing the appeal, the Privy Council gave a number of reasons for deciding that the appellants have standing. This included, firstly, the erroneous approach to standing by the Court of Appeal of the Eastern Caribbean Supreme Court (Antigua & Barbuda), which was too narrow and wrongly dismissed the approach adopted in Walton v Scottish Ministers (at [48]). Secondly, the failure to follow due process; in particular, the development permit applications and the environmental impact assessment for the project were not publicised to the public (at [51]-[54]). This prevented the interested public from making informed and meaningful representations (at [54]). Thirdly, the appellants demonstrated a genuine interest in the environmental concerns raised by the project (at [57]). The Board concluded that its approach was consistent with public participation requirements contained in Article 7 of the Escazu Agreement (at [59]).

The case has now been re-filed in the Antigua High Court, and a judicial review was scheduled for 4 November 2024. There have been no reported developments to the proceedings.

Caribbean Court of Justice (appellate jurisdiction)

By way of brief overview, Barbados, Belize, Dominica, Guyana and St Lucia have replaced the Judicial Committee of the Privy Council appellate jurisdiction with that of the Caribbean Court of Justice (CCJ) in 2023.

One notable case from Guyana to have reached the CCJ is Ramon Gaskin v Minister of Natural Resources [2024] CCJ 14 (AJ) GY. The issue on appeal concerned whether it was permissible for a Petroleum Production Licence to be granted to joint venture licensees consisting of three persons where only one person, the operator, applied for and received an environmental permit for the joint project (at [1]). The salient part of the judgment concerned the Court’s consideration of costs against the losing party, the appellant, who was ‘a person of age and a national of the Co-operative Republic of Guyana’ (at [2]). The CCJ held that the appellant’s challenge was consistent with the Escazu Agreement and ordered that the parties should bear their own costs (at [93]). The relevant passage of the judgment reads:

‘As I intimated at the oral hearing, it appears that the appellant has acted as a public-spirited citizen zealous for compliance with the constitutional and statutory principles and provisions protecting the environment. The arguments summoned, although not ultimately successful, served a very useful function in clarifying an important point in the public law of environmental regulation. The appellant’s initiation and carriage of this litigation was therefore entirely consistent with the Escazu Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean 2018, 61 to which Guyana is a party. The Escazu Agreement aims to provide full public access to environmental information, encourage participation in environmental decision-making, and enable access to legal protection and recourse concerning environmental matters. Accordingly, in the circumstances of this case, I would not impose the costs of losing this appeal upon the appellant but rather would order that the parties should bear their own costs’ (my emphasis).

This may be one of the only reported cases to have explicitly cited the Escazu Agreement in relation to costs in environmental litigation.

European Court of Human Rights

The Escazu Agreement also had a notable mention in the European Court of Human Rights’ (ECtHR) judgment, Verein Klima Seniorinnen Schweiz v Switzerland (for a detailed summary of the case see here, here and also here). The case concerned, as was succinctly put in this report by the Council of Europe’s Committee of Ministers, ‘the failure of the [Swiss] authorities to sufficiently comply with the obligation to adopt, and effectively apply, regulations and measures capable of mitigating the existing and potentially irreversible, future adverse effects of climate change on the right to private and family life and home’.

In reciting the applicable principles, the ECtHR noted:

‘165. In the 2020 Report to the Human Rights Council, entitled “Right to a healthy environment: good practices” (A/HRC/43/53), the Special Rapporteur summarised good practices in implementing the human right to a safe, clean, healthy and sustainable environment, drawn from more than 175 States. He argued that the legal recognition of this right could itself be considered a good practice. The relevant parts of the report read as follows:

“III. Good practices in the implementation of the right to a safe, clean, healthy and sustainable environment

A. Legal recognition

9. In the present report, the Special Rapporteur focuses on the implementation of the right to a safe, clean, healthy and sustainable environment. The legal recognition of this right can itself be considered a good practice, whether by means of constitutional protection, inclusion in environmental legislation or through ratification of a regional treaty that includes the right.

10. In cooperation with the Vance Center for International Justice, the Special Rapporteur prepared an updated list of States that legally recognize the right to a safe, clean, healthy and sustainable environment (see annex II). There are 110 States where this right enjoys constitutional protection. Constitutional protection for human rights is essential, because the constitution represents the highest and strongest law in a domestic legal system. Furthermore, the constitution plays an important cultural role, reflecting a society’s values and aspirations.

11. The right to a healthy environment is explicitly included in regional treaties ratified by 126 States. This includes 52 States that are parties to the African Charter on Human and Peoples’ Rights, 45 States that are parties to the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention), 16 States that are parties to the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador) and 16 States that are parties to the Arab Charter on Human Rights. As at 1 December 2019, five States had ratified the Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean (Escazú Agreement); this recent treaty requires, however, 11 ratifications to enter into force. Ten States adopted the non-binding Declaration on Human Rights of the Association of South-East Asian Nations”’ (my emphasis).

As is clear from the above, the ECtHR also cited the ASEAN Human Rights Declaration in that passage, which will, in due course, be further strengthened by the ASEAN Declaration on Environmental Rights.

Conclusion

The developments outlined above emphasise the significant role the Escazu Agreement plays in environmental litigation, particularly in strengthening participatory rights, access to information, and access to justice. With the Agreement now being referenced in the highest courts, it is inevitable that additional case law will emerge in the near future. And when it does… watch this space.

This guest blog post was written by Mateusz Slowik.

Mateusz is a Judicial Assistant in the High Court of England and Wales. Previously, he worked at the Chinese University of Hong Kong as a Research Assistant to Professor Benoit Mayer on ‘Environmental Assessment as a Tool for Climate Change Mitigation’ (Oxford University Press 2024).

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Authors of the Aarhus blogs

– James Maurici KC – James has been in many of the leading cases on Aarhus costs including: R (RSPB) v SSJ [2017] 5 Costs L.O. 691; Case C 530/11 Commission v United Kingdom; Case C-260/11 Edwards v EA; R (Edwards) v EA (No.2) [2011] 1 Costs L.R. 70 and [2013] UKSC 78; and R (Edwards) v EA [2011] 1 W.L.R. 79. He has also appeared a number of times before the UNECE Aarhus Compliance Committee in Geneva, cases include: ACCC/C/2010/45; ACCC/C/2010/53; ACCC/C/2011/60; ACCC/C/2011/61; ACCC/C/2012/77; and ACCC/C/2014/100 and 101. He is currently acting for the UK Government on the Brexit communication to the Compliance Committee – ACCC/C/2017/150. He was one of the contributors to the Aarhus Convention: A Guide for UK Lawyers (2015) and he has written and lectured extensively on the Aarhus Convention.

– Jacqueline Lean – Jacqueline has also been instructed on a number of matters concerning the Aarhus Convention, including appearing (with James Maurici KC) for United Kingdom before the Aarhus Compliance Committee on two communications concerning the Government’s decision to proceed with HS2 (ACCC/C/100 & 101); representing the Secretary of State for Communities and Local Government Secretary of State in R (CPRE Kent) v Secretary of State for Communities and Local Government [2019] EWCA Civ 1230 in which the Court of Appeal considered the approach to summary assessment of costs at permission stage when an Aarhus costs cap applied; and acting for the Secretary of State in R (RSPB) v Secretary of State for Justice [2018] Env LR 13, a challenge to the Government’s amendments to the Aarhus costs protections in the CPR (also with James Maurici KC). She is also a contributing author to Coppel’s ‘Information Rights’ on Environmental Information.

– Nick Grant – Nick joined Chambers in 2019 and has regularly advised on Aarhus related matters. He has represented the UK twice before the Aarhus Convention Compliance Committee, appearing with James Maurici KC in ACCC/C/2017/150 (the Withdrawal Act case) and unled in the admissibility hearing for ACCC/C/2022/194 (the free trade agreements case).

– Alex Shattock – Alex has been involved in a number of environmental claims including Friends of the Earth v SSLUHC (the Cumbria coal mine case: acting for Friends of the Earth in the Planning Inquiry and High Court, with Paul Brown KC and Toby Fisher); Cox and Ors v Oil and Gas Authority [2022] EWHC 75 (Admin) (representing Extinction Rebellion activists in a challenge to the Oil and Gas Authority’s Strategy, with David Wolfe KC and Merrow Golden); R (Hough) v SSHD [2022] EWHC 1635 (acting for the claimant in an environmental and equalities challenge to the controversial use of Napier Barracks as asylum seeker accommodation, with Alex Goodman KC and Charles Bishop). He regularly advises individual and NGO clients on Aarhus costs protection. Alex also has a keen interest in treaty law generally. He has a masters and PhD in public international law and has been involved in various treaty negotiations and treaty ratification processes.