Some Latin American countries have seemed reluctant to incorporate in their domestic laws the measures proposed by of the Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean (the Escazú Agreement). We provide an overview of the current position of Chile, Colombia, Peru, Mexico and Brazil in respect of this international treaty, signed on March 4 2018 in Costa Rica, and due to enter into force on April 22 2021.
In accordance with the indications of the Economic Commission for Latin America and the Caribbean (ECLA), this Agreement addresses aspects of environmental management and protection from a regional perspective, regulating rights of access to information, public participation and justice in matters such as sustainable use of natural resources, conservation of biological diversity, combating land degradation and climate change, and increasing resilience in the event of disasters.
The Escazú Agreement which, according to the aforementioned ECLA document, aimed to provide a route map for greater dignity, prosperity and sustainability for people and the planet, regulates among other aspects, the following:
Principles. The principles incorporated in the agreement include: non-discrimination, accountability, prevention, intergenerational equity, maximum disclosure, and pro persona. The precautionary principle is also one of the salient features and refers to the possibility, in the event of reasonable doubt regarding the scope, seriousness or irreversible nature of damage to environmental systems, that the public authority can suspend, postpone, condition or prevent the activity from being carried out.
In terms of principles, prevention was also highlighted referring to the possibility, in the event of reasonable doubt regarding the scope, seriousness or irreversible nature of damage to environmental systems, that the public authority can suspend, postpone, condition or prevent a specific activity relating to a project, from being carried out, which according to some detractors of the agreement, can generate legal insecurity in implementing projects.
Access to environmental information. Countries should guarantee to all persons access to environmental information, in accordance with the principle of maximum disclosure, respecting in all cases, the exceptions enshrined in national regulations and in the agreement itself. Requests for information may be submitted without mentioning any special interest, or explaining the reasons for the request. Furthermore, the Agreement proposes certain regulations relating to timeframes and response mechanisms for the countries when such requests for environmental information are made.
Generation and dissemination of environmental information. The Agreement seeks to ensure that the Member States have in place mechanisms for issuing environmental information, thus guaranteeing direct communication with the public in environmental matters in each country.
Public participation in environmental decision-making processes. The States are required to adopt measures that will ensure public participation in decision-making processes relating to projects, activities and other procedures for environmental authorizations which have, or could potentially have, a significant impact on the environment.
Access to justice in environmental matters. The States will be required to guarantee access to justice for all persons, paying particular attention to the needs of the most vulnerable persons or groups, by establishing support mechanisms, which will include free technical and legal assistance.
Human rights defenders in environmental matters. The States undertake to take the appropriate measures to recognize, protect and promote the rights of human rights advocates in environmental matters, in order to ensure a safe environment in which people, groups and organizations can exercise their rights.