Published on 25 October 2021 in Uncategorised

The Escazú Agreement enters into force

The Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean, adopted in Escazú, Costa Rica, on 4 March 2018 (the “Escazú Agreement”, the “Agreement”), entered into force on 22 April 2021.

The Escazú Agreement is the first treaty focusing on the environment in Latin America and the Caribbean and seeks to address key issues that the region faces on this matter.  It is the result of negotiations following the 2012 United Nations Conference on Sustainable Development (Rio+20) and seeks to support the attainment of Principle 10 of the 1992 Rio Declaration on Environment and Development, regarding the right to access information, public participation and justice in environmental issues.

Although lacking participation of key players in the region, such as Brazil, Colombia and Chile, the Agreement is a positive development for environmental protection in Latin America and the Caribbean.

 

Key provisions and takeaways from the Escazú Agreement

a) Access to environmental information

One of the guiding principles of the Agreement is the principle of maximum disclosure, which informs the Agreement’s provisions in relation to disclosure of environmental information under control of State Parties, as well as private entities.

As such, the Agreement introduces obligations to guarantee access to environmental information held by State Parties, albeit limited “to the extent possible within available resources” (Article 6(1)).

Further, it addresses the role of private companies in relation to environmental matters, obliging State Parties to “promote access to environmental information in the possession of private entities” (Article 6(12)) and “encourage public and private companies […] to prepare sustainability reports that reflect their social and environmental performance” (Article 6(13)).

 

b) Protection of environmental activists

Of particular interest is Article 9 of the Agreement, in relation to human rights defenders in environmental matters.  It includes a binding obligation on State Parties to guarantee “a safe and enabling environment” to human rights defenders.  This provision recognises and seeks to address the region’s issues with violence towards environmental activists, binding parties to “take appropriate, effective and timely measures to prevent, investigate and punish attacks, threats or intimidations that human rights defenders in environmental matters may suffer while exercising the rights set out in the present Agreement” (Article 9(3)).

 

c) Environmental protection and human rights

The Agreement follows the line seen in recent years of increased recognition of the link between human rights and the environment in international law.  In this regard, the Agreement expressly recognises the link between environmental and human rights and acknowledges the protection of the environment as a human rights issue.  As such, it establishes that the Agreement is a “legal instrument for environmental protection, but it is also a human rights treaty” (Article 4(1)).

 

Next steps

Critical issues as to the implementation of the Escazú Agreement will be decided at the first Conference of the Parties to the Agreement, which will convene a year after its entry into force.  The meeting will determine key outstanding points such as the adoption of rules of procedure, including modalities for “significant participation by the public” (Article 15(4)(a)), as well as the establishment of subsidiary bodies essential to the effective implementation of the Agreement (Article 15(5)(b)).

 

Commentary

Environmental, social and governance (“ESG”) matters are gradually gaining priority in regulators’ agendas, both at an international and national level.  As such, disclosure requirements continue to increase, driven by a general call for greater transparency in relation to these issues.

The Escazú Agreement is a landmark treaty for Latin America and the Caribbean, enshrining the right of access to information and the principles of transparency and “maximum” disclosure in environmental issues.

The general non-binding character of the obligations set forth in the Agreement should not be a measure of its capacity to effect change.  The Agreement will facilitate public scrutiny of the environmental record of private entities and promote corporations’ transparency in relation to their operations.  This is likely to have a knock-on effect on companies’ policies regarding ESG matters.