First COP (Conference of States Parties) of the Escazú Agreement (2018)

“On March 8, 1995, the Court “annulled the warrant of arrest issued”.Even though this decision was groundless, the prosecutor in charge of the investigation at that time stated in a subsequent statement (infra para. 63) that Juan Francisco López-Mejía confessed to have been coerced into rendering an incriminating statement; therefore, the arrest was declared without Merits. On March 23, 1995, the last of the 27 witness testimonies mentioned above was received from an Army Coronel, Mr. Amaya.One year later, on March 10, 1996, the Tela Bureau of Criminal Investigations filed a report on the case whereby it stated that “in the investigations of the instant case, various important interests will be affected and, in any case, the investigation officers assigned to the case are in serious danger.””, Extracts (paragraphs 57-58), Inter-american Court of Human Rights´s decision, Kawas Fernandez against Honduras, 2009, the first case related to the assassination of an environmental defender in the inter-american system, Blanca Jeannette Kawas Fernandez assassinated on February 6, 1995

“En los años anteriores de conflicto armado hubo muchos líderes que también sufrieron y fueron desaparecidos. Los que asesinaron a mi hijo pensaron que estábamos en esa época todavía, en la que un líder se levantaba a reclamar sus derechos y todos los demás se quedaban callados. Pero se equivocaron, porque yo no me voy a callar“, Rodrigo Tot, leader Q’eqchi from Agua Caliente in Guatemala, interview to El País (Spain), article published on February 10, 2022

First COP (Conference of States Parties) of the Escazú Agreement (2018) 

Nicolas Boeglin, Professor of Public International Law, Law Faculty, Universidad de Costa Rica (UCR)

On April 20-22, 2022,  the first meeting of States Parties to the Escazú Agreement (or “COP1” for “Conference of Parties 1“) was held in Santiago, Chile (see details here and some pictures here).

The Escazú Agreement (see full text in English, French and Spanish) was adopted in Costa Rica in 2018, after a long negotiation process.

Its official name is “Regional Agreement on Access to Information, Public Participation and Access to Justice in Environmental Matters in Latin America and the Caribbean” (see final the Acta Final of the ninth round of negotiations, held in March 2018 Costa Rica).

A Bureau that completed its task in Chile

This last document specifies that the Bureau of the Negotiating Committee will remain integrated until the first COP: this Bureau is composed of Chile and Costa Rica, as co-chairs, as well as Argentina, Mexico, Peru, Saint Vincent and the Grenadines and Trinidad and Tobago.

Adopted in March, and as co-chairs of the negotiations process, both Chile and Costa Rica celebrated the International Environment Day in June 2018, and stated in a joint Declaration (see full text) that:

“Both co-chairs invite all thirty-three governments in the region to sign this important treaty and contribute to a more comprehensive protection of the environment and the strengthening of human rights through its implementation. Likewise, they reiterate that the Escazú Agreement inaugurates, from the particularities of Latin America and the Caribbean, a new standard for the construction and consolidation of environmental democracy. Costa Rica and Chile firmly believe that the early entry into force of the Escazú Agreement will be an unequivocal sign of our region’s vocation to make progress towards meeting the Sustainable Development Objectives of Agenda 2030 and represents an important contribution to multilateralism“.

A Bureau co-chaired by two States that four years after its adoption still have not ratified the Escazú Agreement and one of them signed it only last March 18? This is unfortunately the spectacle – somewhat peculiar – offered to the region and the world by Chile and Costa Rica. On Caribbean side, it must be added that Trinidad and Tobago has not (still) signed the text.

This regional instrument extremely innovative from different perspectives (Note 1) has been signed to date by 24 Latin American and Caribbean States, of the 33 belonging to the United Nations Economic Commission for Latin America and the Caribbean (ECLAC): of these 24 States that have signed it, 12 have already ratified it, the last ones to do so being Argentina and Mexico (January 2021). Chile recently (March 2022) began its accession process to this regional treaty; Costa Rica continues to raise very valid questions (Note 2). To be clear, of the aforementioned Bureau, only Argentina, Mexico and Saint Vincent and the Grenadines are States Parties to the Escazú Agreement.

To complete the picture of signatures, ratifications or future accessions, the following States are absent among signatories of this regional treaty: Bahamas, Barbados, Belize, Cuba, El Salvador, Honduras, Surinam, Trinidad and Tobago as well as Venezuela.

This meeting in the Chilean capital, attended by the 12 States that are already Parties to the Escazú Agreement (see official status of signatures and ratifications), coincided with the celebrations of International Mother Earth Day (April 22) and was accompanied by a list of side events (see official list) organised by academia and civil society that were extremely varied and very diverse: in a way, the Chilean capital was dressed in green and hope, and this after many years.

Photo of Berta Cáceres Flores, Honduran Lenca leader, assassinated on March 3, 2016, extracted from a GAIPE (“Grupo Asesor Internacional de Personas Expertas”): an international investigation group formed to clarify her assassination and in particular the political-corporate plot responsible for her death, which the Honduran State itself initially tried to cover up and disguise (see in this regard the report entitled “Represa de Violencia. El plan que asesinó a Berta Cáceres”).

A celebration for very diverse entities

As it is known, the Escazú Agreement was adopted in Costa Rica on March 4, 2018, the date of March 4 being chosen as a region-wide tribute to the birthday of Berta Cáceres, Honduran Lenca leader, assassinated in 2016 (see Amnesty International press release published -in Spanish – in March 2022 on the commemoration of 6 years since her assassination and – in English– in March 2021, on the commemoration of 5 years).

In the framework of the celebrations observed in Chile on April 20-22, 2022, the “Legislators for the Environment” circulated a strong call to their colleagues in Latin America who have not yet managed to approve this innovative regional instrument, among many initiatives of very diverse nature including those of several NGOs and regional organisations of indigenous communities (see official list of documents that circulated in the section “Insumos del público / Inputs from the public“).

The official delegations of Costa Rica and Chile, as well as those of Brasil, Colombia and Peru, participated in the meeting as observer States, invited to attend the event: concerning the participation of Colombia, through its ambassador in Santiago de Chile  – a very well known person for activists and street protesters in Colombia as well as relatives of those killed and injured in protests in Colombia in 2019 and for Colombian NGOs in favour of Escazú (Note 3)- we refer our esteemed readers to this interesting note published in the Colombian press (El Tiempo, edition of 04/23/2022). Days after this note was published, the European Union (EU) Commissioner for the Environment in person, during his visit to Colombia, indicated (see note in El Espectador of 04/28/2022) that:

“On a continental scale, I believe that the Escazú Agreement is a great step forward for Latin America and the Caribbean in the area of environmental and human rights policies. We will lend our full support to projects that facilitate its implementation. And we certainly hope that the Colombian Congress will ratify it as soon as possible”  / Free translation by the author of “A escala continental, creo que el Acuerdo de Escazú es un gran paso adelante para América Latina y el Caribe en el ámbito de las políticas medioambientales y de derechos humanos. Prestaremos todo nuestro apoyo a los proyectos que faciliten su aplicación. Y por cierto, esperamos que el Congreso colombiano lo ratifique lo antes posible“.

It is quite feasible that, if the outrageous level of violence against physical integrity and lives of community leaders, peasants, environmentalists and indigenous people who raise their voices in some Latin American States (starting with Colombia) continues, the EU will have to consider the idea of conditioning some of its actions in the Americas with the degree of compliance with the Escazú Agreement. It is not yet known what effect on EU’s policy could have the fact that main corporative chambers of some tropical products an fruits oppose a regional treaty that seeks to protect the rights of those who defend the environment.

It should be recalled that the 2018 Escazú Agreement follows closely in its content and internal structure the Aarhus Convention, adopted for Europe in 1998 (and which never drove away foreign investment or caused negative effects on European economies), with three main pillars: the first pillar of Aarhus establishes a set of rules and requirements for State´s authorities concerning the disclosure of environmental information; the second pillar seeks to establish a legal framework for citizen participation in environmental decision-making; and a final pillar deals with the right of individuals or groups to have recourse to an effective justice on environmental issues, particularly when non-compliance with the legal obligations set out in the first and second pillars is observed (Note 4).

As a point of detail on Colombia, a few days after the conclusion of this first COP, in Colombia a first move was registered in its Senate, regarding the approval of the Escazú Agreement (see note of ElEspectador of 04/26/2022). The coincidence of this decision with the presence of the high emissary of the EU may remind some of the fact that during the COP26 in Glasgow, the President of Colombia “submitted” urgently the Escazú Agreement to the Congress as a matter of priority, to then ignore its fate (see press release of ElTiempo, edition of 11/1/2021).

Environmental defenders in the spotlight

This very first formal meeting of the Escazú Agreement reaffirmed the importance of provisions that seek to protect environmental defenders in Latin America and the Caribbean: as it has been written and publicised since its adoption, the Escazú Agreement is a pioneer in the world, being the first international instrument in the entire history of international human rights law containing a provision (Article 9) that seeks to protect environmental defenders. This specific provision is due to a joint initiative of Chile, Costa Rica, Panama, Paraguay and Peru, which shaped what became Article 9 of the Escazú Agreement adopted in 2018 (see the official note – in Spanish-  presented by this group of States to the other delegations during the negotiation process): a provision that is fully in line with the jurisprudence of the Inter-American Court of Human Rights (Note 5).

Very recently, on United States´s State Department DLR website publication (see it here) , it has been written that:

“In 2020, Global Witness and its partners documented 227 murders of land and environmental defenders around the world, making it the deadliest year on record for advocates seeking justice in environment matters. Nearly three quarters of these killings (165) took place in Latin America, with Colombia, Mexico, Brazil, and countries in Central America accounting for most of them. Available data also reveals the disproportionate number of attacks targeting indigenous peoples who often live in remote locations and have limited access to resources to seek justice and redress.  Additionally, women environmental defenders face intersecting and reinforcing forms of discrimination and violence rooted in misogynist gender norms and socioeconomic and political marginalization, which create additional barriers to participation in decisions impacting their communities“.

At the meeting in Santiago, Chile, the Office of the United Nations High Commissioner for Human Rights and the Inter-American Commission on Human Rights jointly reiterated the urgent need to protect environmental defenders and to implement the Escazú Agreement without further preludes (see joint communiqué, in English and in Spanish, poorly publicised in the press), stating that:

“It is worth stressing that the Escazú Agreement is a powerful instrument to prevent conflict by improving access to participation, information, and justice on environmental issues. The Escazú Agreement is a milestone, because it stresses protection for defenders and their role: its spirit reminds us that, to protect the environment, we need to start by protecting the people who defend it“.

The head of the Office of the United Nations High Commissioner for Human Rights stated at the closing ceremony of the meeting that:

“The Escazú Agreement is undoubtedly a milestone because the protagonists are the defenders. We could summarise the spirit of Escazú by saying that if we want to defend the environment we must begin by protecting those who defend it. However, according to data from our office, three out of every four murders of people who defend the Earth and the environment currently occur in Latin America and the Caribbean” / Free translation of the author of “El Acuerdo de Escazú es sin duda un hito porque los protagonistas son las personas defensoras. Podríamos resumir el espíritu de Escazú diciendo que si queremos defender el ambiente debemos iniciar por proteger a quienes lo defienden. Sin embargo, según datos de nuestra oficina, tres de cada cuatro asesinatos de personas defensoras de la Tierra y el medioambiente ocurren actualmente en América Latina y el Caribe” (see ECLAC final communiqué in Spanish).

The protection of environmental defenders was also the subject of a draft decision (see full text of the Conference of the Parties, which reads – resolution point 4) that:

“4. Invites the Parties and all countries of the region to increase their efforts to develop and strengthen all necessary measures at the national level to guarantee the rights of human rights defenders in environmental matters ” Free translation translation of the author of “4. Invita a las Partes y a todos los países de la región a incrementar sus esfuerzos para desarrollar y reforzar todas las medidas necesarias a nivel nacional, para garantizar los derechos de las defensoras y los defensores de los derechos humanos en asuntos ambientales.”

This invitation is already made, and not only to the States Parties, but also to the other States that are not yet Parties. From this perspective, it is worth noting the adoption in Peru a year ago, on April 22, 2021, of Supreme Decree 004-2021 (see full text) of the Ministry of Justice, establishing a mechanism for the protection of human rights defenders, including environmental defenders (see also this press release published in Actualidad Ambiental): this is a very first initiative of a State that is not yet a State Party (Peru has signed the agreement, but its approval in Congress has been shelved due to pressure from various corporative sectors, including military), and which has already established a public policy in line with the objectives of Escazú. This kind of initiative deserves to be strengthened and replicated in various parts of the American continent.

It is also worth mentioning that a State that is a Party to the Escazú Agreement, such as Nicaragua, has registered a series of murders of Mayagnas community and indigenous leaders (see article in La Vanguardia of 19/03/2022, this FIDH report of 2021 and this extremely complete report of December 2021 of the digital media Divergentes entitled “Journey to the hell of the Mayagnas. “Here a pig is worth more than one of us!” “) without knowing of a single State initiative to stop and investigate these assassinations.

The other called “draft decisions” of this first COP on procedural and financial matters are all available at this official ECLAC link (see documents in English and in Spanish). It was also agreed that the second COP will be held again in 2024 in Chile, with an intermediate meeting to be held in Argentina in 2023, reaffirming Chile its undisputed leadership in Latin America on environmental and human rights issues.

Some interesting details about the States Parties

The Conference of the Parties (or “COP”) brought together official delegations from the following States: Antigua and Barbuda, Argentina, Bolivia, Ecuador, Guyana, Mexico, Nicaragua, Panama, St. Kitts and Nevis, St. Vincent and the Grenadines, St. Lucia and Uruguay, the latter being the State that presided over this first COP.

In this interview conducted by the media Diálogo Chino (and published in the edition of 27/04/022), the first impressions of the Uruguayan diplomat who served as President of this first COP of the Escazú Agreement can be read.

It should be noted that some States Parties began with a rather surprising proposal: Bolivian NGOs had to make their authorities reconsider their proposal for limiting the participation of civil society in the framework of this summit. Something totally unacceptable and finally rejected by all other States Parties (see the communiqué reproduced in this note from the Peruvian digital media Servindi).

For the moment, the COP of Escazú Agreement  didn´t not include the formal participation as States Parties of the two States that promoted it during the previous phase of the negotiation that culminated in March 2018 with the adoption of the final text of the treaty: Chile and Costa Rica. An absence that we already had the opportunity to analyse (Note 6) and that deserves an update.

The case of Chile: a coming rectification very soon

As it must be recalled, on March 18, the new President of Chile signed the Escazú Agreement, thus launching the campaign for Chile’s prompt approval and ratification of the Escazú Agreement. In his official statement (see full text in English), we read that:

“this agreement represents a milestone on the road to a new relationship between the State and its inhabitants in environmental matters, and it requires a commitment from everyone. We are faced with the challenge of building a new model for development that will allow us to live in a healthy environment, develop in a more sustainable way, conserve our biodiversity, stop land degradation, adapt to climate change, and build a country in which our children can grow up safe and happy“.

In a very emotional ceremony, the highest Chilean authority also stated (see this CNN Chile report) that “We have taken longer than we should have“, thus allowing Chile to amend an astonishing reading error of his predecessor in office, who stubbornly presented indefensible and unsustainable “arguments” for not signing this important regional international instrument. As of this date, the two chambers of the Chilean Legislative branch are both dedicated to the early approval of this instrument (see this article of El Desconcierto, edition of 18/03/2022), so that Chile may rectify as soon as possible the total incoherence of the previous administration.

This wonderful ceremony at the Palacio de la Moneda in Santiago allowed to close the sad parenthesis for human rights and the environment that meant for Chile the period (2018-2022), and to open a new stage that reaffirms its undisputed leadership in the region in environmental and human rights matters.

As a point of detail remaining to be clarified in Chile, the following episode deserve to be mentioned: in the face of strong criticism from the social and academic sector in Chile against the alleged “reasons” put forward (in a light and evasive manner) by its authorities since 2018 for not signing the Escazú Agreement, in September 2020  a “documento” (see full text) without signature, nor indication of the departments from which it originates, nor consecutive number, nor other details that any good public administration includes in any of its offices, was disclosed by the Chilean authorities, reaffirming their “reasons” justifying, according to them, the non signature by Chile of Escazú Agreement. Instead of the signature, in the final part of the “documento“, our readers will notice that it simply says “Ministerio del Medioambiente – Ministerio de Relaciones Exteriores” (Ministry of the Environment – Ministry of Foreign Affairs). Who drafted it? Who devised and ordered such originality to present untenable arguments to public opinion? It is all a mystery to date in Chile.

The case of Costa Rica: a sky full of storm clouds

With regard to the other State that co-led with Chile the negotiations of the Escazú Agreement for long 5 years, 7 months and 7 days, Costa Rica, the situation is quite different: to an Executive Branch that is not very consistant and committed to the Escazú Agreement, and to a Judicial Branch stubborn in unnecessarily complicating its approval, we must add a Legislative Branch in which its current congressmen (who began work in May 2018 until next May 2022) have been pressured by the Costa Rican business chambers, who since 2020 have opposed the Escazú Agreement head-on based on so-called “arguments” (Note 7).

Concerning the Judicial Branch, to date, neither in the 12 States that have already ratified the Escazu Agreement, nor in Peru (see official document), nor in Chile has a Judicial Branch “discover” an argument as strange as the one found by the Costa Rican Judicial Branch: according to its “Corte Plena” (Supreme Court session with all the judges of the different Chambers sitting), and then according to 6 judges out of 7 that make up the Constitutional Chamber (see decision 06134-2020 and in particular the dissenting vote of Judge Paul Rueda), paragraph 5 of Article 8 of Escazú Agreement would oblige the Judicial Branch to have additional economic resources to those it has for its implementation.The other human rights treaties that contain a very similar provision have never been the subject of such a “discovery” by the Judiciary when examined in Costa Rica: an explanation and clarification from the Corte Plena would be more than welcomed.

Recently (February 25, 2022) the National Chamber of Pineapple Producers and Exporters (CANAPEP), the National Banana Corporation (CORBANA) and six other national chambers, several of them linked to the Costa Rican agro-export sector, reiterated to the deputies their firm opposition to the Escazú Agreement (see full text of the letter) stating that:

“said Agreement contains unconstitutional flaws, inaccuracies and substantive errors that are highly risky for the stability of the productive sector” and concluding their letter by requesting that “the rejection of project 21. 245, due to the risks it represents for the competitiveness of the private sector and for being highly inopportune for the country” (free translation of the author of  “dicho Acuerdo contiene vicios de inconstitucionalidad, imprecisiones y desaciertos de fondo altamente riesgosos para la estabilidad del sector productivo”  and ” se proceda con el rechazo del proyecto 21.245, ante los riesgos que representa para la competitividad del sector privado y por resultar altamente inoportuno para el país“.

In this regard, it should be noted that several attempts to publicly discuss these alleged “arguments” (in April 2021 with a public debate sponsored by the Costa Rican digital media Delfino.cr, in May 2021 with a debate organized by the UCR, and in June 2021 a forum organized by the College of Biologists of Costa Rica) with academics and specialists in environmental matters have failed. It seems that sending communiqués to congressmen against the Escazú Agreement and constantly avoiding public debate on its supposed “arguments” seems to be the trend of some sectors in Costa Rica. However, some Costa Rican jurists have devoted themselves to decipher and explain the scope of these true “myths” and what they call “fallacies” on Escazú that have circulated in some corporative sectors (Note 8).

Taking into consideration the US State Department´s programme before mentioned, its programme officers could also include a very specific training programme to explain the importance of Escazú Agreement to political and economical circles usually very close to US embassies in Latin America: this kind of initiative would also help the region to better protect its environmental defenders. In Costa Rica, the Costa Rican – American Chamber of Commerce (AMCHAM) has also opposed the Escazú Agreement approval by Congress (see this press note of La República of April 24, 2021).

A documentary of the University of Costa Rica (UCR) from 2021 entitled “UCCAEP and the Escazú Agreement /UCCAEP y el Acuerdo de Escazú” portrays quite comprehensively the position of these chambers and some of their political cards (see video availabe in You Tube); this video was completed by another on environmental defenders entitled “The Escazú Agreement and environmental defenders / El Acuerdo de Escazú y los defensores del ambiente” which is also recommended (see video) and which includes an interview with an indigenous leader assassinated in February 2020 in Costa Rica and a leader who has been denouncing the senseless expansion of pineapple in the Guácimo region for many years.  In 2019, a very complete report published in the Costa Rican media Delfino.cr, whose reading is recommended, evidenced the scope of the negative effects of pineapple in Costa Rica (about which the authorities and several press media conveniently omit to refer). For some reasons that are not very clear to us, these two videos that were produced in August 2021 from the Vicerrectoría de Acción Social (VAS) of the UCR – and which include an interview with the Rector himself – are still waiting (still) to be disseminated by the institutional networks of the UCR.

As for the electoral result in Costa Rica last April 2022, it indicates that the possibilities of seeing the Escazú Agreement approved soon have been fading away. In recent days, a very complete article published in the digital media Divergentes (edition of 04/19/2022) on Costa Rica and the Escazú Agreement (whose reading we recommend) showed the great debt that Costa Rica has accumulated in relation to another sector, whose legitimate claims were totally ignored by both contenders during the second electoral round: the Costa Rican indigenous communities.

On March 4, the date on which the Escazú Agreement celebrated its fourth anniversary amidst a notorious silence in Costa Rica, both in the media and in others sectors, we indicated (see our note) that Costa Rica was still in time to reconsider the fact that it is not a State Party to the Escazú Agreement.

Demonstration against the Ministry of Health, August 21, 2008, with the presence of the Minister of Health, Maria Luisa Avila, on the attempt – somewhat original – of the health authorities to legalize the bromacil in drinking water (it is not a joke, just as you read – see article – to legalize bromacil in drinking water) of several communities affected by the senseless expansion of MD2 (or “Sweet Gold”) pineapple in the region of Siquirres. In 2011, health authorities shunned a public debate at the same UCR (see note). In 2017, Executive Decree 40423 (see full text) finally banned the use of bromacil in Costa Rica. Photo belonging to the author’s archives.

A few days after, an important event (see final press release) took place in Costa Rica, held by ECLAC itself  on March 8, 2022 on the Escazú Agreement: CABEI, IDB, EIB, World Bank and OECD were associated for this occasion in order to explain the scope of the Escazú Agreement to the delegates from Latin America and the Caribbean present at the meeting, including representatives of Costa Rican business chambers (see link with invitation and detailed program). For some reason that, from our point of view, should be explained and made known – or at least investigated -, both the ECLAC press release (see full text) and the official communiqué of the Costa Rican Ministry of Foreign Affairs (see full text) on this important meeting went totally unnoticed in the Costa Rican media.

On silences and questions thrown into the air without answers in Costa Rica

Beyond the silences that sometimes seem to be achieved in the Costa Rican media spectrum, recently, from the Costa Rican digital media Delfino.cr, we asked some very simple questions to various Costa Rican business chambers and their political tokens (see our article): questions that, to date, have not received answers. It seems that discussion and debate are not the way to be used for some people in Costa Rica. We have recently asked them again in the very same Costa Rican media (Note 9).

What is noteworthy is that we are not aware of any business chamber that has publicly denied or modulated the assertions against the Escazú Agreement made by several of its influential counterparts: it would seem that we are facing something more than a simple trend, and that would (also) deserve to be investigated. It is also worth noting that the Costa Rican authorities in charge of foreign trade and the economy – as well as of environment – have felt no special need since 2018 to publicly take their distance with these assertions, particularly regarding the alleged negative effects on foreign investment that the approval of the Escazú Agreement would have.

In an article published last March 18 in Costa Rica (see article of Semanario Universidad), date on which is also commemorated, in Costa Rica, the death of Sergio Rojas, an indigenous leader murdered in Salitre on March 18, 2019 (see article published also in Semanario Universidad), we pointed out that:

“For those who, in Costa Rica, but also in Colombia, in El Salvador, in Honduras, in Paraguay and in Peru continue to doubt the Escazú Agreement, they will be able to observe that as of tomorrow, foreign investment will not flee Chile, nor will legal insecurity be created, nor will the reversal of the burden of proof in environmental matters invade Chilean criminal law, calling into question the principle of innocence and the rule of law. None of what the business chambers foresee will happen if Costa Rica ratifies the Escazú Agreement was observed in any of the 12 States that have already ratified the Escazú Agreement: neither in Argentina, nor in Bolivia, nor in Ecuador, nor in Mexico, and much less in Panama ” (free translation of the author of “Para quienes, en Costa Rica, pero también en Colombia, en El Salvador, en Honduras, en Paraguay y en Perú siguen dudando del Acuerdo de Escazú, podrán observar que a partir de mañana no sale huyendo de Chile la inversión extranjera, ni se crea inseguridad jurídica, ni la inversión de la carga de la prueba en materia ambiental  invade el derecho penal chileno poniendo en entredicho el principio de inocencia y el Estado e Derecho. Nada de esto que prevén las cámaras empresariales que va a ocurrir si Costa Rica ratifica el Acuerdo de Escazú se observó en ninguno de los 12 Estados que ya han ratificado el Acuerdo de Escazú: ni en Argentina, ni en Bolivia, como tampoco en Ecuador, ni tampoco en México, y mucho menos en Panamá“.

First effects of the COP ?

As said before, just a few days after the conclusion of this first COP, a first advance was apparently registered in Colombia’s Senate, in relation to the approval of the Escazú Agreement (see note from ElEspectador of 04/26/2022). Is it a real direct effect of  Escazú s first COP, or a simple political move due to the presence of the higher ranked EU official on environmental issues in these days in Colombia?

In Costa Rica, no initiative has been observed in Costa Rica by its outgoing legislators (at office until April 30, 2022) in relation to the Escazú Agreement. The newly elected environmental authorities, whose designation has provoked strong reservations in the environmental sector (see note from Semanario Universidad of 04/22/2022) are apparently already straining (unnecessarily) relations with several environmental groups due to some of their statements (see note from Surcos Digital of 04/26/2022). Regarding news from international agencies, this cable from the Spanish agency EFE illustrates from its very title the total inconsistency that Costa Rica exhibits before the rest of the international community.

More generally speaking, in relation to Costa Rica but also to the other States in Central America (Guatemala, El Salvador and Honduras), in South America (Brazil, Colombia, Paraguay, Peru and Venezuela) and in the Caribbean (Bahamas, Barbados, Cuba, Haiti,  Dominican Republic as well as Trinidad and Tobago) that still maintain their distance from the Escazú Agreement, despite observing in some of them how leaders of small peasant or indigenous communities who raise their voices are intimidated and physically eliminated, we make our own the reflections of a valuable article written by two Chilean jurists entitled “The need for an environmental democracy in Latin America: The Escazú Agreement  / La necesidad de una democracia ambiental en América Latina: el Acuerdo de Escazú ” in which they point out, with a meridian clarity that can leave no one indifferent, that:

“It has been rightly emphasized that the Escazú Agreement is both an environmental instrument and a human rights treaty. Thanks to this double dimension, the commitments that the States have assumed in favor of sustainable development -as well as those derived from international human rights law- are reinforced thanks to new standards that aspire to greater prosperity, dignity and sustainability. Undoubtedly, in the most unequal region in the world and the one with the greatest attacks on human rights defenders in environmental matters, the Escazú Agreement enjoys even greater justification”   Free translation of the author of “Con justa razón se ha destacado que el Acuerdo de Escazú es tanto un instrumento ambiental como un tratado de derechos humanos. Gracias a esta doble dimensión, los compromisos que los Estados han asumido en favor de un desarrollo sostenible —así como aquellos derivados del derecho internacional de los derechos humanos— se ven reforzados gracias a nuevos estándares que aspiran a una mayor prosperidad, dignidad y sostenibilidad. Sin duda, en la región más desigual del mundo y de mayores ataques a los defensores de derechos humanos en asuntos ambientales, el Acuerdo de Escazú goza aún de una mayor justificación” (Note 10).

By way of conclusion

It is very likely that the absence of Chile and Costa Rica among the States Parties to the Escazú Agreement has influenced decision makers of other latitudes in the region, by offering its main detractors a new argument, unexpected for many.  A lack of political vision in both States, whose effects transcend the borders of their respective territories, leaving in a situation of total defenselessness many environmental defenders who live a much harsher and critical reality than the one that environmental defenders face in Costa Rica and Chile.

However, in this 2022, Chile seems to be on the verge of correcting this error. We would not like to conclude these brief lines without expressing to the Chilean jurist Constance Nalegach, with whom we had the privilege of sharing several spaces and forums, in particular a recent interview on university television (see video available on You Tube), our deep admiration for her tireless work and unwavering commitment in favour of a true environmental democracy in Latin America and the Caribbean.

The Escazú Agreement and all environmental defenders in Latin America owe much to this great Chilean figure. We wish her every success in his new functions in the administration of President Gabriel Boric, whose emotional and committed speech at this first COP (see text) did not go unnoticed: we are sure that Chile will be the next State to approve this innovative regional treaty.

On May 3, 2022 (see Swissinfo note of an EFE ´s cable ), the first step was taken in this direction in Chile. On the other hand, this May 4, from Germany (see note of DW) it was reported what it has been heard in Costa Rica, which, as expected, goes exactly in the opposite direction.

– -Notes – –

Note 1: On Escazú Agreement, we refer to these two extremely comprehensive publications from Colombian and Argentinian universities: 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, CEPAL /Universidad del Rosario de Colombia, 2021 (298 pages), full text available here;  and NAPOLI A., PRIEUR M., SOZZO G. (editors), Acuerdo de Escazú : hacia la democracia ambiental en América Latina y el Caribe, Universidad del Litoral (Argentina), Colección Ciencia y Tecnología, 2020, 330 pages, full text available here. For recent articles on Escazú in English,  see CIESIELCZUK J. & LOPEZ PORRAS G. “Public Participation and the Escazú Agreement: Implementation Challenges for Vulnerable Groups Amid a Global Pandemic“, IUCN eJournal, April 2021, pp 12-33, available here and PÁNOVICS A., “The Escazú Agreement and the Protection of Environmental Human Rights Defenders“, Pécs Journal of International and European Law, 2021, pp.23-34, available here.  A bibliography on Escazú Agreement (thesis and academic articles) prepared by GNHRE (at the date of October 2021) is also available here.

Note 2: See BOEGLIN N., “¿Escazú sin Costa Rica? Así como lo oye, por más extraño suene“, Universidad de Costa Rica (UCR) s´website, Section “Voz Experta”, edition of May 8, 2021, available here.

Note 3: The now diplomat Guillermo Botero was Defense Minister in Colombia in 2019, an extremely tense period. After his resignation as Minister (November 2019), NGOs and social movements negotiated with Colombian authorities the conditions to put an end to massive streets protests at national level,  and obtained, among others, from the Colombian Executive Branch, the signature of Escazú Agreement (December 2019). Since then, a strong campaign against the Escazú Agreement has slowed down its approval. Among many efforts to counter it from civil society, LaPulla’s talented team of Colombian communicators produced a very complete video of 15 minutes in which the various political maneuvers of Colombian political and economic sectors opposed to the Escazú Agreement are extreely well identified and explained, entitled “The new trap that congressmen want to set for us / La nueva trampa que nos quieren hacer los congresistas” (available here).

Note 4: On the relations between  Aarhus (1998) and Escazú (2018), see JIMENEZ GUANIPA H., “El Acuerdo de Escazú y el Convenio de Aaarhus  en el marco de la democracia ambiental“, Ideas Verdes, Heinrich Böll Stiftung /Colombia, December 2020, text available here. On the possible interaction between Aarhus and Escazú before the adoption of the definitive text in 2018, see DELZANGLES H. “L’accès à la justice dans le projet de convention sur l’information, la participation et l’accès à la justice en Amérique du sud et aux Caraïbes : analyse comparée avec l’article 9 de la Convention d’Aarhus”, in BETAILLE J. (directeur), Le droit  d´accès a la justice en matière d´environnement”, Toulouse, Presses de l´Université de Toulouse Capitole, 2018, pp.79-90, full text available here.

Note 5: See for exemple, among other decisions, the Inter-american Court of Human Rights indicating in 2013 that :”123. The Court recalls that there is an undeniable link between the protection of the environment and the protection of other human rights and that the “recognition of work undertaken in defense of the environment and its relationship to human rights is even greater in the countries of the region, where a growing number of threats, acts of violence and murders of environmentalists have been denounced.” In this regard, the Court considers that States have the obligation to adopt all necessary and reasonable measures to guarantee the right to life of those persons who find themselves in situations of special vulnerability, particularly as a consequence of their work, whenever the State is “aware of a situation of real and imminent danger for a specific individual or a group of individuals and has reasonable possibilities of preventing or avoiding that danger.” Furthermore, States should provide the necessary means for persons who are defenders of human rights, or who perform a public function, so that when they encounter threats or situations of risk or report violations of human rights, they can “freely carry out their activities; protect them when they receive threats so as to prevent attacks on their lives and integrity; create the conditions to eradicate violations by State agents or other individuals; refrain from hindering their work and seriously and effectively investigating violations committed against them, combating impunity” (see decision of Inter-american Courth of Human Rights on “Carlos Luna Lopez vs Honduras“, 2013, paragraph 123).

Note 6: See BOEGLIN N., “Chile está a punto de rectificar su postura frente al Acuerdo de Escazú, mientras que Costa Rica se limita como los demás a … ¿mirar?” UCR´s website, Section “Voz Experta”, edition of March 4, 2022, available here.

Note 7: See BOEGLIN N., “El Acuerdo de Escazú: a propósito de recientes comunicados en contra de su aprobación“, Delfino.cr, edition of November 29, 2020, full text available here

Note 8: See in particular PEÑA  CHACÓN M., “Desmitificando el Acuerdo de Escazú“, DerechoalDía, edition of November 28, 2020, available here;  as well as MADRIGAL CORDERO P. y GONZALEZ BALLAR R., “Acuerdo de Escazú: desmitificando falacias y construyendo argumentos“, Collection of Papers “Perspectiva“, Friedrich Ebert Stiftung, August 2021, available here. A very similar effort coming from academia and civil society took place in Peru in relation with identical so-called “arguments” (see the report SPDA, “Diez mitos y verdades sobre el Acuerdo de Escazú: democracia y defensores ambientales”, available here) as well as in Colombia (see the publication entitled “Mitos y verdades del Acuerdo de Escazú” available here). An interesting exercise on the balance of information would consist, in the case of the Costa Rican press, as well as in the case of the Colombian and Peruvian press, in analysing the number of references in the main media to these efforts, to be contrasted with the number of references reproducing the so-called “arguments” against Escazú disseminated by corporate sectors.

Note 9: See BOEGLIN N., “Acuerdo de Escazú: primera COP1 (sin Costa Rica)“, Delfino.cr, edition of April 20, 2022, available here.

Nota 10: See  ASTROZA P. & NALEGACH C., “La necesidad de una democracia ambiental en América Latina: el Acuerdo de Escazú“, Fundación Carolina, Serie “Documentos de Trabajo”, Number 40, 2020, p. 28. Full text available here.

Final note: A Spanish version of this text is avaible here. Nota final: una versión en español de este mismo texto está disponible aquí.