Escazú Agreement: on its sixth anniversary and its ratification by Colombia.

On September 27, 2024, the Escazú Agreement marked six years since it was officially opened for signature and ratification by States at a side event of the United Nations General Assembly (see full text of the Escazú Agreement).

Predictably, this new anniversary went totally unnoticed in Costa Rica, as well as in several other States that, together with Costa Rica, were among the first to sign it in 2018 (and whose current authorities in the Executive Branch, six years later, do not consider it appropriate to support its legislative approval). Similarly. last March 4, the date on which this valuable regional instrument was adopted in 2018 in the Costa Rican canton of Escazú, (after nine long rounds of negotiations that lasted five years, seven months and seven days), the same mutism and indifference were observed in Costa Rica.

Despite the lack of interest on the part of some States, on September 25 Colombia proceeded to complete a long process by formally depositing its instrument of ratification with the United Nations General Secretariat: Colombia thus became the 17th State Party to the Escazú Agreement, adopted in 2018.

In contrast to other deposits of the instrument of ratification, it is worth noting the presence of its highest authorities in the official delegation present in New York for the formal act of delivery of the instrument of ratification (see press article with photo of the same),

Numerous specialists have described the text adopted in Escazú as a modern legal instrument for environmental management and governance, and this from many different perspectives and disciplines (Note 1).

A forum held in February 2023 with two eminent Costa Rican environmental law specialists, entitled “Escazú Agreement, what’s next?” and sponsored by the Costa Rican digital media LaRevista.cr (see link) explained the scope of the file by the Legislative Assembly, reiterating in passing, the unsoundness of the alleged ‘arguments’ spread against the Escazú Agreement by several Costa Rican business chambers: our esteemed readers are invited to listen (and re-listen) to this important space for discussion and analysis, which made it possible to uncover the maneuvers and tripwires of various kinds that the Escazú Agreement has had to suffer in Costa Rica in recent years, including those imposed by the Constitutional Chamber itself on two occasions.

A brief account of the processing in Colombia

Since November 5, 2022, after both chambers of the Colombian Congress approved the text of the Escazú Agreement, the Colombian Executive Branch has been patiently awaiting the decision of the Constitutional Court, which took almost two years to declare itself in favor of the Escazú Agreement (Note 2).

There is no information on the exact reasons why the study of this international treaty by the Colombian constitutional magistrates took so long. To have an idea of the time frame, we can mention that:
  • The law approving the Belém do Para Convention to Punish and Prevent Violence against Women was approved by the Executive Branch on December 29, 1995 and the Constitutional Court issued its ruling on September 4, 1996 (see sentence);
  • The law approving the bilateral trade promotion agreement with the United States was enacted on July 7, 2007 by the Executive Branch, and the Constitutional Court issued its ruling on July 24, 2008 (see text);
  • An act approving the 2006 United Nations Convention on the Rights of Persons with Disabilities was enacted by the Colombian Executive on July 31, 2009 and the constitutional judge’s ruling is dated April 21, 2010 (see text).

In the case of the Escazu Agreement, the wait was much longer: in fact, sanctioned by the Executive Branch on November 5, 2022, it was only on August 28, 2024 that the Constitutional Court issued its favorable decision regarding the law approving the Escazu Agreement: see the link).

Colombia thus joins the 16 States that have already ratified it (see official status of signatures and ratifications), including Argentina, Belize, Bolivia, Chile, Ecuador, Guyana, Mexico, Nicaragua, Panama and Uruguay.

To date in Latin America, the following States remain distant, having signed the Executive Power but not approved the Escazú Agreement (attribution of the Legislative Power): Brazil, Costa Rica, Guatemala, Haiti, Paraguay, Peru and Dominican Republic. Noted that they were the first States to sign the Escazú Agreement, on September 27, 2018, together with seven other States, in New York.

Escazú Agreement
Women from Yulchen Frontera, members of the Ixquisis Peaceful Resistance against the San Mateo hydroelectric project in Guatemala. Image extracted from press release“Environmental defenders in Latin America: surrendering is not an option,” Mongabay Latam, October 31, 2019, and reproduced in the digital media LaMula (Peru).

Among the Latin American States that have not even signed it (an act that falls to the Executive Branch), the following persist at the time of writing (October 2, 2024): Cuba, El Salvador, Honduras and Venezuela.

Selected dates for depositing its instrument of ratification

Note that, like Bolivia, Saint Vincent and the Grenadines, Saint Kitts and Nevis and Uruguay in 2019, the Colombian Foreign Ministry chose to formally deposit the instrument of ratification on a date close to September 27: it is, as previously indicated, the day on which this regional instrument was formally opened for signature by States at the United Nations, on the occasion of a protocolary ceremony held during a side event at the United Nations General Assembly on September 27, 2018.

Other States, instead, chose a date close to March 4 (date on which the instrument was adopted in Costa Rica in 2018) to formally proceed with the deposit of the instrument of ratification at the United Nations: Belize in 2023, as well as Nicaragua and Panama (2020).

In the case of Chile (June 13), possibly its authorities sought to deposit the instrument of accession around June 5, 2022 (International Environment Day), without taking into account the internal timing and deadlines in force within Chile’s diplomatic apparatus.

The diplomatic apparatuses of Argentina and Mexico coordinated perfectly to deposit, on January 22, 2021, their respective instruments of ratification before the United Nations General Secretariat, which allowed the entry into force of the Escazú Agreement (both States being the required ratification number 11) to materialize for the celebration of Earth Day, on April 22, 2021. Rarely has the United Nations seen such careful coordination between two diplomatic apparatuses to jointly deposit their respective instruments of ratification.

The Escazú Agreement: going from strength to strength

Despite the lack of media coverage in Costa Rica, the third Conference of States Parties to the Escazu Agreement (COP3) was held in Santiago, Chile in April 2024 (see preparatory document March 2024).

Despite the lack of media coverage in Costa Rica, the third Conference of States Parties to the Escazu Agreement (COP3) was held in Santiago, Chile in April 2024 (see preparatory document March 2024).

In April 2023, COP2 was held in Buenos Aires, Argentina (see final report). We had had the opportunity to welcome, among other aspects, the return of Chile in 2023, as a State Party: see our article entitled “Escazú Agreement: a second COP more than successful” published in the Costa Rican digital media Delfino.cr..

At this COP2 held in Argentina, the States Parties chose the members of the Committee for Implementation and Compliance Support of the Escazu Agreement, the body of independent experts created by the same treaty in its Article 18 (see link).

To complete this sequence, the first COP met in April 2022 in Santiago, Chile (see program), with 12 States Parties to the Escazú Agreement at that time, namely: Antigua and Barbuda, Argentina, Bolivia, Ecuador, Guyana, Mexico, Nicaragua, Panama, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines as well as Uruguay. In this link you can consult the final report – of more than 70 pages – of this first and historic meeting for the Escazú Agreement and environmental governance in Latin America and the Caribbean.

The success of this cutting-edge legal instrument is evidenced not only by the decisions taken at its first three Conferences of States Parties: also when reviewing the inputs gathered to ensure proper implementation, elaborated from ECLAC (Economic Commission for Latin America) itself in a valuable implementation guide of the Escazú Agreement, which was formally presented in April 2022 (full text available here): for each article, States and civil society organizations, as well as other actors, have at their disposal a detailed analysis that invites them to actions of a very diverse nature.

With specific regard to implementation, Chile is possibly the State that is making the greatest efforts since it became a State Party to the Escazú Agreement. Even its current environmental authorities held a meeting to celebrate six years of the Escazu Agreement (since its opening for signature by States at the United Nations), on September 25, 2024 (see link): this is one more activity that comes to add to a series of initiatives gathered in this link special on the Escazu Agreement maintained by its environmental authorities from its official site. Undoubtedly, these valuable initiatives in Chile should inspire many other States Parties to the Escazú Agreement.

In October 2023, Argentina, for its part, provided itself with a real “National Plan for the Implementation of the Escazu Agreement” (see document), preceded by a “Road to Implementation / Argentina” prepared by ECLAC itself (see document).

It is worth noting that in May 2024, ECLAC itself made available to the public and the States an innovative digital tool for the implementation of the Escazú Agreement: see link to this platform.

The notable advances in South America in relation to the Escazú Agreement can be contrasted with the total lack of governmental initiative in Central America to protect those who speak out in defense of the environment and safeguard their rights.

The persistent absence of Costa Rica

Regarding Costa Rica, it is of some interest to recall its persistent absence as a State Party to the Escazú Agreement, adopted in March 2018 in … Costa Rica, after having co-led the negotiations with Chile (Note 3).

During the long months in which it examined the Escazú Agreement, the Colombian Constitutional Court did not find any of the strange “findings” of the Costa Rican Judiciary to hinder its processing, to which we referred in our aforementioned article and in a previous article on the real “myths” created by some sectors against the Escazú Agreement in Costa Rica (Note 4).

Nor did a single Colombian magistrate detect any threat in criminal matters with an alleged risk that would mean the reversal of the burden of proof in environmental matters: an alleged “argument” presented as such by various Costa Rican business chambers and a magistrate of the Constitutional Chamber (Note 5).

We had already had the opportunity, in 2023, to conclude that the loneliness of the Costa Rican Judiciary in Latin America is latent, by stating that:

Rarely has such an erroneous and wrong interpretative criterion of Costa Rican judges been evidenced in such a singular manner. And rarely has the dissenting (and solitary) criterion of a judge of the Constitutional Chamber been so comforted by the practice in other States after having been externalized (March 2020)” (Note 6).

The fact that none of the 16 States that, before Colombia, have ratified the Escazu Agreement, have observed any hindrance in their respective economies or any type of brake in infrastructure projects, should call for reflection to some sectors in Costa Rica: in particular a few, prone to repeat as true, alleged “arguments” vented from a sector of the business community against this valuable regional instrument.

Escazú Agreement
Manifestation against the Ministry of Health, August 21, 2008, with the presence of the Minister of Health, Maria Luisa Avila, about the attempt – somewhat original – of the health authorities to legalize the bromacil in drinking water (no joke, just as you read, legalize the bromacil in drinking water) of several communities affected by the senseless expansion of the MD2 (or “Sweet Gold”) exprotation pineapple in the Siquirres region. In 2011, health authorities shunned a public debate at the same UCR (see note). In 2017, Executive Decree 40423 finally banned the use of bromacil in Costa Rica. Photo belonging to the author’s files. It was read in 2009 by the same holder of Health that, “Those of IRET have refused to give the names of the children, with the argument of confidentiality, which personally seems to me an absurdity in these cases. Personally and as Minister, it seems to me an outrage“ (see article of the Semanario Universidad entitled ‘Revelation of agrochemicals in urine of minors generates dispute’).

Several attempts were made to publicly debate these “arguments” disseminated by business chambers with academics and specialists in environmental matters and all 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 official press release of the UCR), as well as in June 2021 by the College of Biologists of Costa Rica.

As these were virtual forums in which private business organizations were asked to connect their 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 Escazu Agreement (such as this letter of February 2022 signed by several important Costa Rican private sector corporations) and constantly shying away from public debate on their alleged “arguments” is the tonic of some in Costa Rica.

Central America and the Escazú Agreement

Needless to say, Costa Rica’s non-approval has had an impact beyond Costa Rican territory, offering an unexpected argument to the detractors of the Escazú Agreement in Central America, particularly in Guatemala, El Salvador and Honduras.

These are Central American states that either:

  • persist in not ratifying it, such as Guatemala, which, moreover, in 2022 notified a peculiar request to the Secretary General of the United Nations, never previously observed in relation to a human rights treaty by a State in Latin America. The only similar precedent found refers to similar notifications sent by the United States and Israel to the United Nations in 2002 to “withdraw” their signature to the Rome Statute adopted in 1998 (Note 7);
  • or from States that have not even signed it (as in the case of El Salvador and Honduras).

As far as Guatemala is concerned, there is no information available to know what motivated such an action in December 2022 by its diplomatic authorities: it is intuited that it is some obscure “legend” fabricated by legal advisors of the Guatemalan business sector at the end of 2022 against the Escazú Agreement.

Regarding Costa Rica, it is worth noting that in an article of the Costa Rican specialized publication Ojo al Clima, dated April 2021, on the scope of the Escazu Agreement and the contradictions, misinterpretations and fantasies created by some, regarding its content, we read something very striking that since April 2021, would warrant some clarifications. In fact, the negotiator of the Escazú Agreement on behalf of Costa Rica, the former Costa Rican Vice-Minister of Environment, Patricia Madrigal Cordero, points out with respect to a magistrate of the Constitutional Chamber, Nancy Hernández, the following:

“The obstruction of the Judiciary to the ratification process of the Escazú Agreement has been negative in many ways. First, it departs from the criteria of the technical services of the Legislative Assembly, which said that the situation described in article 167 of the Political Constitution was not present, and it also departs from the criteria of the technical services of the Judicial Branch, which considers that this bill does not affect in an organic manner the functioning of the Judicial Branch, and even less so in the case of a human rights treaty”, continued the former vice-minister. Second, Judge Nancy Hernández, in a note, states her interpretative concerns of the Escazú Agreement, which coincidentally are the same concerns that the Costa Rican Union of Chambers and Associations of the Private Business Sector (UCCAEP) has found to oppose the bill, added Madrigal”.

A “statement” released by the aforementioned constitutional magistrate and recorded during an academic event at the UCR Law School, raises even more doubts and evidences her ignorance of the environmental regulations in force in Costa Rica and the principles that govern it (see this documentary from 2021 on the Escazú Agreement produced by the UCR, starting at minute 4:56). In the final part of this documentary (one of the few existing in Costa Rica on the Escazú Agreement), a sentence begins stating that “Magistrate Hernández declined to give statements for this documentary…”, minute 8:45).

A conclusion

Beyond the strange coincidences between the UCCAEP and the concerns of the aforementioned constitutional magistrate, the fact that, six years after the opening for signature and ratification of the Escazú Agreement, Costa Rica remains distant from this valuable instrument raises some very valid questions: its international image in the environmental field has been quite damaged since the Legislative Assembly filed the bill for the approval of the Escazú Agreement in February 2023 (Note 8).

The deterioration has been confirmed in recent years, with environmental authorities highly questioned in recent months. In an appearance related to the controversy of the moment in the second half of 2024 in Costa Rica, Gandoca Manzanillo (Note 9), the highest environmental authority on August 6 (see video) denoted a rather worrying lack of knowledge regarding the threats received in the South Caribbean by activists and members of social organizations: see the ‘I don’t know’ that can be heard from him at minute 1:52:01 and that he repeats three times in front of the members of the legislative commission.

At the local area, there are recurrent legal actions against the refusal of municipal authorities to provide public information on projects likely to have negative effects on the environment (see, among many other cases, link to this recent legal action – September 2024 – filed against the mayor of San Rafael de Heredia by the NGO Conceverde). This is not to mention the granting in “express” and unconsulted mode of municipal permits for controversial projects in different communities (see for example note from 2016 on the granting of municipal permits to an asphalt plant in San Miguel de Santo Domingo de Heredia).

Despite the rather unique spectacle that Costa Rica offers to international observers interested in environmental issues, the guiding principles of the Escazú Agreement will find fertile ground in Colombia, given the plight of many Colombian environmental leaders and heads of small rural and/or indigenous communities who are speaking out in defense of the environment. Colombian environmental authorities materialized in March 2024 an effort to facilitate access to public information on environmental matters, which should be hailed and replicated in other parts of the American continent (see publication official publication entitled “Policy of transparency and access to public information”).

After Chile, where the political-business elite had also managed to raise unfounded fears against the Escazú Agreement, based on alleged “arguments” between 2018 and 2021, Colombia now joins the States in favor of a much more inclusive and participatory environmental governance in Latin America.

It is to be hoped that this sustained effort by Colombian civil society, articulated with the academic sector and other sectors of Colombian society in favor of the Escazú Agreement (Note 10), which gradually managed to explain the fallaciousness of many of the myths and legends created against the protection of those who defend the environment, will be replicated in the future in other latitudes of the American continent, particularly in Central America, but also in the South of the continent.

– – – Notes – – – –

Note 1: 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 somewhat 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.),Escazú Agreement: international, regional and national approach, Editorial Jusbaires, Buenos Aires, 2022, 670 pp. Work available in full in 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. Complete work available in this link; and PRIEUR M., SOZZO G. and NAPOLI A. (Editors), Escazú Agreement: pact for the eco-economy and democracy of the 21st century, 330 pp., 2020, Universidad del Litoral (Argentina). Complete work available in this link.

Note 2: See in this regard our note BOEGLIN N., “Escazú Agreement: Colombia is very close to officially becoming a State Party after Chile (2022), Argentina and Mexico (2021). Notes from Costa Rica”, published on October 26, 2022. Text available here..

Note 3: We refer our esteemed readers to BOEGLIN N., “Costa Rica and the Escazú Agreement: history of a persistent absence”, Revista de Ciencias Ambientales (UNA, Heredia), Vol. 58 (2024), pp.1-11. Full text of the article available here.

Note 4: See BOEGLIN N., “ ‘¡Llegaron los mitos!’: a propósito de los recientes comunicados en contra del Acuerdo de Escazú”, Sección Voz Experta, Portal de la Universidad de Costa Rica (UCR), December 16, 2020. Text available here. Regarding the unusual nature of the finding made by the Judiciary, which apparently has not aroused much criticism in Costa Rica, we refer to the subtitle “The deep solitude of the Costa Rican Judiciary in Latin America” in our article published in the specialized legal site of DerechoalDia, in its edition of November 17, 2022.

Note 5: On the principle of reversal of the burden in environmental matters contained in the Escazú Agreement that a Costa Rican judge of the Constitutional Chamber interpreted in a completely erroneous manner in a vote in March 2020, see a recently released strong criticism, the complete reading of which is recommended: CHINCHILLA-CALDERÓN R. , “Principle of innocence, criminal ‘burden of proof’, environmental crimes and the Escazú Agreement”, Revista Iberoamericana de Derecho, Cultura y Ambiente, 2024. Full text available here.

Note 6: See BOEGLIN N., “Escazú Agreement: wind in the stern. Inter-American Court of Human Rights incorporates it, while Costa Rica’s unusual absence persists“, Portal de la UCR, Voz Experta Section, April 10, 2023 edition. text available here.

Note 7: A letter from the United Nations states that Guatemala sent the following notification to the United Nations on December 20, 2022, announcing that it has no intention of becoming a State Party in the future (see bottom of this link):

“In a communication received on 20 December 2022, the Government of Guatemala informed the Secretary-General of the following: “I have the honour to write to you in reference to the Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean, also known as the Escazú Agreement, adopted in Escazú on 4 March 2018 and signed by the Republic of Guatemala on 27 September 2018.The Republic of Guatemala officially informs you, as depositary of the Escazú Agreement, that it does not intend to become a party to the Agreement. Its signing of the Agreement shall not, therefore, give rise to any legal obligations for the Republic of Guatemala, in accordance with international law“.

Specialists in formal parallels will be able to compare Guatemala’s strange letter of 2022 with the (equally strange) letter sent by Israel in 2002 requesting that its signature to the 1998 Rome Statute creating the International Criminal Court (ICC) have no effect whatsoever. It reads (see final part of the official statement of signatures and ratifications of the Rome Statute, point 4) that:

“In a communication received on 28 August 2002, the Government of Israel informed the Secretary-General of the following: “…..in connection with the Rome Statute of the International Criminal Court adopted on 17 July 1998, […] Israel does not intend to become a party to the treaty.  Accordingly, Israel has no legal obligations arising from its signature on 31 December 2000.  Israel requests that its intention not to become a party, as expressed in this letter, be reflected in the depositary’s status lists relating to this treaty.“

The parallelism of forms can be oriented to the “cut and paste” technique when reviewing a similar letter from the United States in May 2022, always apropos of the Rome Statute and read at point 14 at the end of the official status of signatures and ratifications:

“In a communication received on 6 May 2002, the Government of the United States of America informed the Secretary-General of the following: “This is to inform you, in connection with the Rome Statute of the International Criminal Court adopted on July 17, 1998, that the United States does not intend to become a party to the treaty. Accordingly, the United States has no legal obligations arising from its signature on December 31, 2000. The United States requests that its intention not to become a party, as expressed in this letter, be reflected in the depositary’s status lists relating to this treaty”.

Note 8: The filing by the Legislative Assembly, on February 1, 2023, of the legislative file on the approval of the Escazú Agreement (see our note) has substantially damaged Costa Rica’s image abroad:

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 cable from the international agency AFP replicated in El Observador of Uruguay using the word ‘retroceso’). More recently, this article entitled “Lauded as Green Model, Costa Rica Faces Unrest in Its Forests” published by Yale University in the United States details this and other inconsistencies in Costa Rica in environmental matters.

From the United Nations, the same Independent Rapporteur on Human Rights and Environment was quick to express his deep dissatisfaction with this decision of the Costa Rican Legislative Assembly to shelve this legislative file (see note published in the Costa Rican digital media Delfino.cr). As indicated in a note 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, such as human rights and the environment”.

Note 9: Regarding the latest, somewhat witty proposal by Costa Rica’s top environmental authorities, see BOEGLIN N., “Gandoca / Manzanillo:the legal obligations that the Ramsar Convention implies for Costa Rica”, edited September 11, 2024. Full text available here. .

Note 10: See this valuable publication published in Colombia and entitled Myths and Truths of the Escazu Agreement, as well as this link of the Universidad del Rosario, and, from the academic sector this very complete article MUÑOZ AVILA L. & LOZANO AMAYA M.A. ‘La democracia ambiental y el Acuerdo de Escazú en Colombia a partir de la Constitución ecológica de 1991’, Revista Derecho del Estado, Number 50 (Sept.-Dec. 2021), pp. 165-2002. Dec. 2021), pp. 165-200. The full text of this extensive article is available here.

From the communications sector, the talented Colombian team of La Pulla produced a video entitled “La nueva trampa que nos quieren hacer los congresistas” (see link ), which responds to the large number of totally fallacious arguments against this regional instrument, breaking down in an extremely ingenious way many of the reasoning heard not only in Colombia: These are true myths and legends, heard in several other States of the American continent against the Escazú Agreement, and which have influential followers in the business sector and no less influential relays in a sector of the corporate press. It is not superfluous to refer also to this legal opinion of the Colombian NGO DeJusticia to the magistrates of the Constitutional Court in October 2023 (see text).