Text shared by Nicolás Boeglin

On March 7, Belize became the 14th State Party to the Escazú Agreement, when it formally deposited its instrument of ratification at the United Nations headquarters in New York: see formal letter of the Secretary General of the United Nations, acting in his capacity as depositary of said treaty.

Belize had signed the Escazu Agreement on September 24, 2020, being its signature one of the most recent on record, together with that of Dominica.

In Mesoamerica, Mexico ratified this treaty in January 2021, while Nicaragua and Panama both ratified this instrument more than three years ago (March 2020); while Costa Rica persists in not approving it, as did Guatemala. El Salvador and Honduras (Note 1) have not even signed the Escazú Agreement.

Despite the situation described above with regard to Mesoamerica, the rest of the American continent has shown much more commitment to this cutting-edge regional environmental and human rights instrument, and there are promising signs for the Escazú Agreement in 2022 and so far in 2023, as we will explain below.

The Escazú Agreement: a brief account of a developing treaty

As will be recalled, the Escazú Agreement is an international treaty adopted under the auspices of the United Nations Economic Commission for Latin America and the Caribbean (ECLAC) in March 2018 in Costa Rica by 33 delegations from Latin America and the Caribbean. It is the first (and to date, the only) environmental instrument for Latin America and the Caribbean, so the absence of Costa Rica among its State Parties five years after its adoption may raise some very valid questions.

The long negotiation process initiated in 2013 was co-led by Chile and Costa Rica. The text finally adopted in Costa Rica on March 4, 2018 consists of 26 articles (the text is available in this link): its objective is to translate Principle 10 of the Rio Declaration of 1992 on informed public participation in environmental matters into legal terms. Its entry into force, on April 22, 2021, was celebrated by several States, civil society entities and international organizations, including, within the United Nations, the Secretary General himself (see official statement of the General Secretary).

As is well known, the text adopted in Escazú has been described by numerous specialists as a modern legal instrument for environmental management and governance, and this from very diverse perspectives and disciplines (Note 2).

In 2023, a recent call to Brazil to guarantee the survival of the Yanomami population demands the prompt ratification of the Escazu Agreement (see official statement of the Inter-American Commission on Human Rights of February 8, 2023). Similarly, with regard to the rights of Costa Rican women, a recent report of the CEDAW Committee recommends the Costa Rican State to approve the Escazú Agreement without further ado (see CEDAW/C/CRI/CO/8 report of February 28, 2023, point 45). Prior to this, we find the same exhortation made to Costa Rica in a report of the Special Rapporteur on the Rights of Indigenous Peoples, prepared following his in situ visit in 2021 (see link to access this report, dated July 13, 2022, paragraph 98 (i)).

In March of 2022, an important meeting in the Costa Rican capital sponsored by ECLAC with the main international development cooperation banks (World Bank, CABEI, IDB, EIB) and representatives of the Organization for Economic Cooperation and Development (OECD) reaffirmed that the Escazú Agreement is perfectly in line with the general guidelines on transparency and accountability promoted by these international entities in the area of investment (see official press statement. For reasons that merit investigation, and have not been investigated, this press release and the event as such were not referenced in the Costa Rican media.

In April 2022, ECLAC published a report on the implementation guide (almost 200 pages) of the Escazú Agreement: it is a very valuable text, and highly recommended reading for social organizations, as well as for decision-makers and public entities, and the interested public in general.

In November 2022, the first forum on human rights defenders in environmental issues met in the Ecuadorian capital (see program and videos of this important activity).

These and several other activities, totally ignored by most of the Costa Rican press, show the strong impetus that ECLAC and the States Parties have given to the Escazú Agreement, in order to achieve its prompt implementation and correct application.

The Escazú Agreement: a notorious mention by the Inter-American Court of Human Rights integrating it into its corpus juris

In one of its latest rulings, released in February of 2023, the Inter-American judge condemned Chile for violating the freedom of expression of an environmental lawyer: see for example this article of the DW of the end of February 2023. When studying more closely the reasoning followed by the Inter-American Court of Human Rights in this judgment, the Escazú Agreement appears in several parts of the judgment, in a very sustained manner. Thus, after citing several of its provisions (paragraphs 73-77), the Inter-American Court states that:

“The Court considers that the respect and the guarantee of the rights of human rights defenders in environmental matters, in addition to being a commitment acquired by the States Parties to the American Convention, insofar as it concerns persons under their jurisdiction, is of special importance because they perform a task “fundamental to the strengthening of democracy and the rule of law”

(párrafo 78) (Nota 3).

The Inter-American judge proceeds in the same manner further on in the text of his judgment. Indeed, after referring to another provision of the Escazú Agreement in paragraph 99, it reads in paragraph 100 that:

[…], the Court considers that the respect and guarantee of freedom of expression in environmental matters is an essential element to ensure the participation of citizens in the processes related to such matters and, with it, the strengthening of the democratic system through the validity of the principle of environmental democracy“.

These references to the Escazú Agreement by the Inter-American judge in his reasoning are the first of many others that will reappear in the future, particularly when examining contentious cases related to the situation faced by those in Latin America who raise their voices in defense of the environment, whether from their small communities or from other spaces. Although the contribution of inter-American jurisprudence to the protection of environmental defenders has been analyzed in detail (Note 4), there is no doubt that the Escazú Agreement contributes from now on to substantially enrich the corpus juris of the inter-American judge, allowing him to specify and consolidate the scope of the obligations of the States in this matter.

This judgment should already be of interest to all the States of the American hemisphere that are part of the inter-American human rights system. It should be noted that in paragraph 71 of its judgment, it is stated that for the inter-American judge:

“71. The definition of the category of human rights defenders is broad and flexible due to the very nature of this activity. Therefore, any person who carries out an activity of promotion and defense of any human right, and calls himself or herself such or has social recognition of his or her defense, should be considered a defender. This category includes, of course, environmental defenders, also called environmental human rights defenders or human rights defenders in environmental matters”.

The content of this judgment deserves to be widely disseminated to environmental organizations, activists, and the general public, as well as to universities, trial lawyers and judicial schools: the reasoning followed by the Inter-American judge should in particular be analyzed by national criminal judges examining alleged defamation suits against environmentalists (Note 5).

In fact, the criminal lawsuit for alleged defamation against Carlos Baraona Bray in Chile filed in 2004 is in fact a “technique” frequently used in Latin America to try to intimidate community leaders, environmentalists, peasants, indigenous people, or academics, particularly when a megaproject is the subject of public debate due to its negative environmental impacts; Anglo-Saxon doctrine refers to this type of action as “SLAPP actions” (Note 6). These criminal actions, whether brought by a state official (as in the case of Carlos Baraona Bray) or by a private company, rarely come to fruition: they are usually dismissed, filed or even rejected after many years by the courts. As happened in Costa Rica – among many examples – with the lawsuit filed by a pineapple company against an environmental and union leader in Siquirres (see Kioscos Ambientales article of 2010), with the three lawsuits for alleged defamation filed by a Canadian mining company in 2011, or with the lawsuit filed by a businessman in 2015 against an environmental lawyer in the Costa Rican South Caribbean (see ElPais.cr article of 2021). The fact that these lawsuits are dismissed or dismissed (as in the case of Carlos Baraona Bray) does not mean that they do not violate some of the rights of the defendants, and therein lies precisely the main contribution of this ruling, among several others.

Demonstration against the Ministry of Health, August 21, 2008, with the presence of the Minister of Health, Maria Luisa Avila, on the – somewhat original – attempt by the health authorities to legalize bromacil in drinking water (no joke, just as you read, legalizing bromacil in drinking water) of several communities affected by the insane expansion of MD2 (or “Sweet Gold”) pineapple expropriation in the Siquirres region. In 2011, the health authorities shunned a public debate at the same UCR. (see article). In 2017, the Executive Order 40423 finally banned the use of bromacil in Costa Rica. Photo from the author’s files. It was read in 2009 by the same Minister of Health that: “IRET has refused to give the names of the children, with the argument of confidentiality, which personally seems absurd to me in these cases. Personally and as a Minister, I think it is barbaric” (see article of Semanario Universidad titled “Disclosure of agrochemicals in urine of minors generates dispute”).

In our opinion, it is undeniable the importance of this sentence to protect environmental defenders from clearly intimidating criminal lawsuits of which they are very often victims. In paragraph 126 of this judgment we read that:

“126. In this regard, the Court recalls that international standards on environmental matters highlight the importance of States adopting adequate and effective measures to protect the right to freedom of opinion and expression and access to information in order to guarantee citizen participation in environmental matters, which is of vital importance in the materialization and protection of the right to a healthy environment, in accordance with the Escazú Agreement (supra para. 100).

It should be added that the Escazú Agreement should also reappear, this time, in a future advisory opinion of this same regional jurisdiction: indeed, in January 2023, the Inter-American Court of Human Rights was requested by Chile and Colombia regarding the obligations of States in the face of the climate emergency and the urgent measures they should take (see full text of the request for an advisory opinion): There are six questions to be answered by the Court, two of them (B and E) referring expressly to the provisions of the Escazú Agreement.

With regard to the impunity that usually prevails in the face of all kinds of abuses suffered by environmental defenders and leaders of populations more impacted than others by the effects of climate change, we must thank Chile and Colombia for having included question E in their request for an advisory opinion, paragraph 5 of which reads as follows:

“5. What due diligence measures should States take into account to ensure that attacks and threats against environmental defenders in the context of the climate emergency do not go unpunished?”

Some details on the timeline of the ratifications shortly gathered

Beyond the effects that the Escazú Agreement is already beginning to produce in the Inter-American human rights system, to date, the official status of signatures and ratifications of this emblematic regional treaty adopted in Costa Rica in March 2018, records a total of 24 signatures and 14 States Parties, including Belize.

Prior to Belize, Chile (June 2022), Argentina and Mexico (January 2021) proceeded in the same way, in a coordinated manner, as the latter two States were the ones that jointly allowed the entry into force of the Escazú Agreement on April 22, 2021, Earth Day.

It should be recalled that the first State to ratify the Escazú Agreement was Guyana (April 2019), followed by Bolivia, Saint Lucia, Saint Vincent and the Grenadines and Uruguay, States that deposited their respective instruments of ratification at the United Nations on the same date of September 26, 2019, which coincides with the first year since this regional treaty was opened for signature at the United Nations headquarters. In 2020, Antigua and Barbuda managed to deposit its instrument of ratification at the United Nations on the date on which the Escazú Agreement celebrated its second anniversary (March 4) followed a week later by Nicaragua and Panama.

These small details of form are evidence of the care taken by some foreign ministries in the hemisphere to formalize their commitment to an emblematic instrument on dates of relevance. It can also be considered that Chile sought in 2022 an insignificant date such as June 5 (International Environment Day), formally depositing its instrument of ratification a week later at the United Nations.

In Latin America, Colombia should proceed to a prompt ratification, after the approval of the agreement by both chambers of its Legislative Branch in November 2022 (see our article in this regard).

Costa Rica’s disconcerting absence

Last March 4, the Escazu Agreement celebrated exactly 5 years since its adoption in Costa Rica in 2018: a date that went totally unnoticed, at least as far as the Costa Rican authorities are concerned. This date was preceded by a rather striking episode: the filing by the Legislative Assembly, on February 1, 2023, of the legislative file on the approval of the Escazú Agreement (see in this regard our article). 

The fact of shelving the Escazú Agreement has substantially damaged Costa Rica’s image abroad: in fact, there were several headlines in the international press last February 2023 highlighting Costa Rica’s inconsistency in environmental matters (see for example this article published in El Mundo (Spain) entitled “Costa Rica subtracts points as a ‘green country’ “; or this article de France24 titled “Costa Rica, promoter of the Escazú Agreement on the environment, lets it die“; or this article published in GoodPlanet Mag entitled “Le Costa Rica fait passer à  la trappe un traité de défense de l’environnement“; or this channel of the international agency AFP replicated in El Observador Uruguay using the word “backtracking“). 

From the United Nations, the same Independent Rapporteur on Human Rights and the Environment was quick to express his deep dissatisfaction with this decision of the Costa Rican Legislative Assembly to shelve this legislative file (see article published in Delfino.cr). As indicated in an article published by Semanario Universidad on the same date of February 1st, by not approving the Escazú Agreement:

Costa Rica is losing all international credibility by turning its back on two traditional pillars of its foreign policy, human rights and the environment.

A recent forum held in February 2023 with two eminent Costa Rican specialists in environmental law, entitled “The Escazú Agreement, what’s next?” and sponsored by LaRevista.cr (see link) explained the scope of the file by the Legislative Assembly, reiterating in passing, the little solidity of the alleged “arguments” spread against the Escazú Agreement by several business chambers: readers of LaRevista. cr to listen (and re-listen) to this important space for discussion and analysis, which allowed us to uncover the maneuvers and tripwires of various kinds that the Escazú Agreement has had to suffer in Costa Rica in recent years, including the ones made by the Constitutional Chamber on two occasions (Note 7).

To date, the pettiness demonstrated by the Full Court when examining the effects of the Escazu Agreement on the functioning of the Judiciary, ratified in March 2020 by the Constitutional Chamber in a vote of six to one (Paul Rueda Leal – Note 8) is unique: it has not found any echo from the other judiciaries of the American hemisphere. The same international treaty does generate, according to the Plenary Court and then the Constitutional Chamber, an expense for the functioning of the Costa Rican Judiciary and … what does it not generate in any of the judiciaries of the other States of the region? Just as you read, as unusual as it may seem. What an oddity that would merit, at the very least, an explanation (which to this date has not been given).

We already had the opportunity, in June 2022, to write in these same pages of LaRevista.cr that:

“It is very likely that, with the passage of time (and of new ratifications of the Escazú Agreement to come), the profound loneliness – in our opinion quite unusual – of the Costa Rican Judiciary before its other peers in Latin America and the Caribbean will be accentuated”.

(Nota 9)

Regarding other “arguments” against the Escazú Agreement, we had the opportunity to publicly voice a few questions on the same date of March 4, 2022 to some Costa Rican business sectors: see our article published in Delfino.cr and titled “Escazú Agreement: preCOP this March 4… without Costa Rica”. More than a year after publication, none of these questions have been answered. Previous attempts made in 2021 to publicly debate the alleged “arguments” against the Escazú Agreement failed to materialize (Note 10).

In conclusion

Beyond the rather peculiar way that some sectors in Costa Rica have of debating their supposed “arguments” against the Escazú Agreement, and the confusion that the absence of Costa Rica has generated, there is no doubt that 2023 begins in a very promising way for the Escazú Agreement, as we have detailed in the previous lines.

From the institutional and operational point of view, the States Parties to the Escazú Agreement and ECLAC have spared no effort: the brief review of activities and documents produced in 2022 are just a small sample of their commitment to the environmental democracy that they intend to consolidate through the implementation of the Escazú Agreement. A first Conference of the Parties (COP1) was held in Santiago de Chile in April 2022, which will be followed by a second COP in 2024, also to be held in the Chilean capital, while an important preparatory meeting will take place in Argentina in April 2023 (see official link).

With regard to the aforementioned official status of 24 signatures and 14 ratifications, to date, in Latin America, several absences persist.

In fact, the following States have not even signed the Escazú Agreement: Cuba, El Salvador, Honduras and Venezuela. The ratification process cannot begin in these States until the Executive Branch signs the text. At the same time, together with a puzzling Costa Rica, the following States persist in not approving it in their respective congresses: Brazil, Guatemala, Haiti, Paraguay, Peru and the Dominican Republic.

It is very likely that Costa Rica’s absence, five years after the approval of the Escazú Agreement, will be an unexpected argument that will be of great use to political and economic sectors in the hemisphere opposed to the recognition of the rights of those who defend the environment.

No está de más recordar que en el pasado, con relación a otro emblemático instrumento regional que fue también adoptado en el territorio costarricense, Costa Rica sí se ajustó a lo que se espera siempre de un Estado que hospeda la ronda final de negociación de un futuro tratado: en efecto, Costa Rica fue el primer Estado en ratificar en 1970 (véase el estado oficial de firmas y ratificaciones de dicho instrumento) la Convención Americana sobre Derechos Humanos, conocida también como “Pacto de San José” .

Author: Professor of Public International Law, School of Law, Universidad de Costa Rica (UCR). Contacto: [email protected]

Notes

Note 1: In the case of Honduras, it should be noted that the Escazú Agreement was adopted on March 4, a date chosen as a Latin American and Caribbean tribute to the birthday of Berta Cáceres, a Lenca Honduran leader, assassinated on March 3, 2016 due to her opposition to a hydroelectric project called Agua Zarca. Her murder was the subject of an international investigation, an international investigation team formed to clarify this crime and in particular the political-corporate plot responsible for her death, which the Honduran State itself tried to cover up and disguise at first (see in this regard the report entitled “Represa de Violencia. The Plan that assassinated Berta Cáceres”).

Note 2: See for example PEÑA CHACÓN M., “Transparencia y rendición de cuentas en el Estado de Derecho ambiental“, Delfino.cr, edition of April 17, 2021, available here. On the Escazú Agreement, we refer to three valuable (and voluminous) collective publications that detail the scope of its content and its importance for the consolidation of a true environmental democracy in Latin America and the Caribbean: ATILIO FRANZA J. & PRIEUR M. (dir.), Acuerdo de Escazú: enfoque internacional, regional y nacional, Editorial Jusbaires, Buenos Aires, 2022, 670 pp. Work available in full at this link; as well as BARCENA A., MUÑOZ AVILA L., TORRES V. (Editors), El Acuerdo de Escazú sobre democracia ambiental y su relación con la Agenda 2030 para el Desarrollo Sostenible, 2021, CEPAL / Universidad del Rosario (Colombia), 298 pp, available at this link; and PRIEUR M., SOZZO G. and NAPOLI A. (Editors), Acuerdo de Escazú: pacto para la eco-nomía y democracia del siglo XXI, 330 pp, 2020, Universidad del Litoral (Argentina), available at this link. The fact that it is a cutting-edge instrument can be further confirmed by reviewing the developments to ensure a correct application of Article 7 and Article 9, elaborated by ECLAC itself in the implementation guide of the Escazú Agreement, formally presented in April 2022 (available here, particularly on pp.108-126).

Note 3: See Baraona Bray v. Chile, judgment of November 24, 2022, paragraph 100. Full text of the judgment available here.

Note 4: See for example BORRÁS S., “La contribución de la Corte Interamericana de Derechos Humanos a la protección de los defensores ambientales”, Revista Eunomía, Vol. 9, No. Oct-2015/March 2016, pp. 3-25. Full text of the article downloadable online; as well as NUÑO A., “Personas defensoras del medioambiente. Obligation to investigate human rights violations”, Infojus, available here.

Note 5: In paragraph 118, we read textually that for the Inter-American judge: “118 …, the Court recalls that, in the context of the debate on issues of public interest, the right to freedom of expression not only protects the emission of inoffensive or well-received expressions by the public opinion, but also the emission of those that shock, irritate or disturb public officials or any sector of the population152. Thus, although Mr. Baraona Bray’s expressions were highly critical of Senator SP’s conduct in relation to the authorities in charge of the conservation of the alerce tree, this does not imply that his speech is unprotected under the optic of freedom of expression. The use of expressions that may be shocking or critical are resources or communication strategies used by human rights and environmental defenders, which seek to communicate and raise awareness in the general population. Thus, a statement on a matter of public interest enjoys special protection in view of the importance of this type of speech in a democratic society“.

Note 6: These criminal actions seek above all to pressure and intimidate environmental, peasant, indigenous or other social leaders who raise their voices in the face of the abuses to which they are subjected by companies and corporations. Their objective is clearly one of intimidation. In Anglo-Saxon doctrine they are called “SLAPP actions” (Strategic Legal Actions Against Public Participation). This valuable report entitled “Silencing Human Rights and Environmental Defenders: The overuse of Strategic Lawsuits against Public Participation (SLAPP) by Corporations” analyzes the impact of these criminal actions, while in this link you will find a report published in 2022 that includes part of the practice in Latin America, entitled “SLAPPS in Latin America”.

Nota 7: In a first sentence of March 2020 (see full text of sentence 06134-2020), the Constitutional Chamber considered that a procedural flaw invalidated the approval in the first debate, with a dissenting vote of one magistrate (of seven) opposed to such a conclusion and who pointed out in his opinion that: “It is easily noticed that such norm at no time imposes on the Judiciary the obligation to provide free technical assistance, which must be implemented based on the conditions of the legal system of each country“. Two magistrates also considered attaching two notes: a first one in which the magistrate tries to demonstrate the limits of public participation in environmental matters, omitting – conveniently – to cite what the Inter-American Court of Human Rights expressly pointed out about the right to citizen participation in environmental matters as a right in its Advisory Opinion OC-23 of 2018; and a second one in which a magistrate considered it useful – and opportune – to show that the inversion of the burden of proof in environmental matters contravenes the Constitution (which is clearly unusual and denotes her ignorance of the basic rules of modern environmental law in force in Costa Rica). In a second moment, in August 2020, the Constitutional Chamber considered it necessary to go back to the beginning of the whole procedure (see full text of the sentence 15523-2020): the same magistrate Paul Rueda in this second opportunity, indicated in his dissenting vote – whose complete reading is recommended – that: “With the above it is evident that the position of the majority comes to disregard these powers of the Assembly and the procedure established by interna corporis. Based on the above arguments, I consider it viable for the Plenary to consult the Judiciary, correct the omission and continue with the due legislative procedure, as occurred in the sub examine. The contrary position, chosen by the majority of the Chamber, results in an evident delay in the parliamentary procedure of the project “Approval of the Regional Agreement on Access to Information, Public Participation and Access to Justice in Environmental Matters in Latin America and the Caribbean (Escazu Agreement)“. We refer our esteemed readers to the section entitled “Escazú and the reversal of the burden in environmental matters or the art of threatening with the empty pod” and to the section “The solitude of the Plenary Court and the Constitutional Chamber in relation to other Judiciaries in Latin America” of our article: BOEGLIN N., “The approval of the Escazú Agreement in Chile. Algunas reflexiones a propósito de la conmemoración del Día Internacional del Ambiente“, June 7, 2022, Portal de la Universidad de Costa Rica (UCR), available here.

Note 8: In the vote of the Constitutional Chamber of March 2020 (see full text), in his dissenting opinion, Justice Paul Rueda states that: “It is easy to see that this rule at no time imposes on the Judiciary the obligation to provide free technical assistance, which should be implemented based on the conditions of the legal system of each country. In the case of Costa Rica, such assistance may be provided by any public agencies related to the subject, for example, the Ombudsman’s Office, the Social Defenders of the Bar Association or the legal offices of the UCR (which does not exclude the cooperation of those corresponding to private universities). Erroneously, the majority vote only thought of the Judicial Branch and considered that the text consulted “contains in its articles explicit norms that provide for the creation, substantial variation or suppression of strictly jurisdictional or administrative bodies attached to the Judicial Branch, or creates, ex novo, substantially modifies or eliminates materially jurisdictional or administrative functions”. Based on the foregoing, I hold that the express text of the numeral in question does not at any time lead to what the Majority assumes“.

Nota 9: See BOEGLIN N., “The recent approval of the Escazú Agreement in Chile. Some reflections on International Environment Day“, LaRevista.cr, June 8, 2022 edition, available here.

Note 10: Several attempts to publicly debate these supposed “arguments” disseminated by business chambers with academics and specialists in environmental matters failed: first in April 2021 with a space sponsored by the Costa Rican digital media Delfino.cr, then in May 2021 with a debate organized by the UCR (see also the official communiqué of the UCR), as well as in June 2021 by the College of Biologists of Costa Rica. As these were virtual forums in which the UCCAEP was asked to connect its representatives at a specific time on a date set in advance, the reasons given for not attending raise very valid questions. Apparently, sending communiqués to congressmen against the Escazú Agreement (such as this February 2022 letter signed by several important Costa Rican private sector corporations) and constantly shying away from public debate on their supposed “arguments” was the tonic of some in Costa Rica.