9 - An Introduction to the Aarhus Convention’s Cousin, the Escazu Agreement

*With thanks to our guest author, Mateusz Slowik, for providing this blog post. Mateusz is a Research Assistant at the Chinese University of Hong Kong.

By now, the reader of this blog will have become well acquainted with the Aarhus Convention. In this post, the reader will be introduced to the Convention’s (not so distant) cousin from Latin America and the Caribbean: the Escazu Agreement.  

The Escazu Agreement  

The Escazu Agreement (full name: Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean, Protector of the Realm) entered into force on 22 April 2021. It is a regional agreement very much in its infancy in comparison to its European cousin. The Agreement currently counts 15 signatories (contrast with the Aarhus’ 38) despite the instrument being open to all 33 countries in Latin America and the Caribbean. Since its entry into force, only three other countries have ratified the Agreement (Belize, Chile and Grenada), while other important players are yet to become signatories (notably, Brazil and Costa Rica). 

The Six Pillars 

In some respects, the Escazu Agreement can be likened to a ‘copycat’ Convention – mirroring the three traditional pillars guaranteed by the Aarhus Convention. However, the instrument provides three additional ‘new’ pillars of environmental democracy. The six pillars of the Escazu Agreement are expanded on blow. 

Traditional Pillars 

1. Pillar 1: Access to Information – Article 5 lays down the public and vulnerable groups’ right to access to environmental information. Article 6 provides that each Party shall generate, collect, publicise and disseminate environmental information in a systematic, proactive, timely, regular, accessible and comprehensible manner. 
2. Pillar 2: Public Participation – Article 7 stipulates the requirements for effective public participation in environmental decision-making.
3. Pillar 3: Justice in Environmental Matters – Article 8 provides a general framework for access to justice in environmental matters.  

New Pillars 

1. Pillar 4: The Right to a Healthy Environment – The Agreement is the first multilateral environmental agreement to guarantee the right of every person to live in a healthy environment (Article 4). In this aspect, it as much an environmental agreement as it is a human rights instrument (contrast with the Aarhus’ ‘elusive’ right to a healthy environment in Article 1).
2. Pillar 5: Rights of Human Rights Defenders – Article 9 requires Parties to protect the rights of human rights defenders in environmental matters. This is the world’s first provision safeguarding the rights of environmental defenders and is salient to the region, where their persecution is endemic. Despite the importance of the provision, out of the five most dangerous countries for environmental defenders, only one (Mexico) has ratified the Agreement. 
3. Pillar 6: Capacity-Building and Cooperation – Article 10 contains an undertaking by the Parties to ‘create and strengthen national capacities’ to facilitate the implementation of the instrument. This provision is strengthened by Article 11, which requires the Parties to the Agreement to ‘cooperate’ on strengthening national capacities.  

Whose Rights Does the Agreement Guarantee? 

While the Aarhus Convention distinguishes between the ‘public’ and the ‘public concerned’, the Escazu Agreement makes no such distinction. Instead, it guarantees rights to: 

• the ‘public’ (Article 2(c)); and 
• ‘vulnerable’ persons or groups (Article 2(d)). 

Parties implementing the Agreement are required to be guided by several principles, including the principles of equality and non-discrimination (Article 3). However, it is difficult to reconcile these principles with the actual definition of the ‘public’ under the instrument: ‘natural or legal persons and the associations, organisations or groups … that are subject to the national jurisdiction of the State Party’ (Article 2(d)). This contrasts with the Aarhus Convention’s Article 3.9, which explicitly prohibits discrimination on the grounds of ‘citizenship, nationality or domicile’.  

What’s Next for the Agreement? 

Three notable developments have occurred in the first half of 2023. 

1. In April, the Second Conference of the Parties (COP) met with the primary purpose of electing the members of the Support Committee for the Application and Compliance of the Agreement. Members were chosen based on criteria related to expertise, geographical distribution, gender parity and legal trajectory (for more information, see here). The COP also reiterated the importance of strengthening the support for implementation of the Agreement (see the Buenos Aires Declaration). Other sessions of the COP focused on environmental defenders and Financial Arrangements and Report of the Voluntary Fund.
2. In March, a public consultation held by the Panamanian Government was criticised for its inconsistency with the Escazu Agreement. In particular, the consultation process failed to guarantee public participation in the decision-making process from the early stages. Moreover, the public participation procedure failed to provide sufficient timeframes, with the 69-page draft for consultation released on March 24 with the deadline for public’s objections on April 22.
3. In January, Chile and Colombia submitted a request to the Inter-American Court of Human Rights for an advisory opinion (AO). Among the questions asked, the Court has been requested to address the specific measures, policies and considerations that must be considered by the Parties to the Escazu Agreement to guarantee the rights of environmental defenders. The outcome of the AO will be highly anticipated, particularly given the Court’s progressive nature.

As this brief introduction has attempted to show, the Escazu Agreement is very much in its infancy, and it remains to be seen how the instrument will fare with time. Fortunately for the Agreement, the experience of the Aarhus Convention may serve as an as inspiration for the next steps, particularly in relation to implementation. Similarly, the progressive environmental democracy rights enshrined in the Escazu Agreement may act as an inspiration for any future developments to the ‘elusive riddle’ of the Aarhus Convention’s human-rights objective. 

Authors:
– 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 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.