22 August 2018
At the end of September, the “Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean ”, in short the “Escazú Agreement”, will open for signature. Time to have a closer look at the Agreement, in particular to see what Europe can learn from this “Latin American Aarhus Convention”, specifically concerning access to justice.
The Escazú Agreement was concluded in March of this year following 4 years of protracted negotiations. As the Aarhus Convention, it is based on three pillars: access to environmental information (Articles 5 and 6 Escazú), public participation (Article 7 Escazú) and access to justice (Article 8 Escazú). These pillars are supported by guarantees for persons seeking to rely on these rights (guidance and assistance, especially for vulnerable groups, protection for human rights defenders etc.) and arrangements to enhance the implementation of the agreement (Implementation and Compliance Committee, capacity-building, cooperation, voluntary fund, etc).
As opposed to the Aarhus Convention’s very succinct style, the Escazú Agreement incorporates more general principles and specific elements of the access rights under the three pillars. Whether or not this approach will be more or less effective, the more extensive elaborations under the Escazú Agreement can serve as an inspiration in implementing the Aarhus Convention.
For one, the Agreement includes an additional provision listing principles that shall guide the interpretation of the Agreement (Article 3 Escazú). These are not only classical principles of international environmental law, such as prevention, precaution and intergenerational equity, but also principles of good administration, such as transparency, accountability, good faith, maximum disclosure and pro persona.
All of these principles are highly relevant in interpreting the Aarhus Convention rights as well. The principle of “non-regression” (Article 3(c) Escazú) appears particularly relevant today considering attempts of certain Aarhus Parties to limit access to justice rights .
Another element is the Agreement’s more elaborate recognition of the rights of Environmental Human Rights Defenders (Article 9 Escazú). The Aarhus Convention recognizes the right of everyone to be free of “penalization, persecution or harassment” when exercising their Aarhus rights (Article 3(8) Aarhus). Moreover, the Aarhus Compliance Committee adopted findings last year in which it clearly linked this provision to existing human rights guarantees. However, the more extensive phrasing of the Escazú Agreement picks up and thereby highlights existing international human rights obligations as reflected in more recent documents of the Human Rights Council and Special Rapporteurs . In times where environmental defenders are increasingly subject to threats and harm, including within the Aarhus region, it is important to give greater visibility to this important element of environmental democracy.
More specifically with regard to access to justice, two aspects are particularly noteworthy:
Firstly, the Agreement refers to the right to challenge “any other decision, action or omission that affects or could affect the environment adversely or violate laws and regulations related to the environment.” This is the equivalent Escazú provision to Article 9(3) Aarhus which refers to “acts and omissions contravening provisions of national law related to the environment.” However, the Escazú Agreement captures the nature of this right in much clearer terms, i.e. as a provision to cover “any other” decisions/acts/omissions – i.e. besides those related to environmental information or public participation - that have harmful effects on the environment. This can be instructive for Aarhus Parties who tend to apply unduly narrow interpretations of Article 9(3) Aarhus.
Secondly, the Agreement lists other important elements of the right to adequate and effective remedies, such as reversal of the burden of proof and dynamic burden of proof, the need to execute and enforce judicial and administrative decisions in a timely manner and mechanisms for redress, such as restitution, restoration, compensation, financial penalties, satisfactions, guarantees of non-repetition, assistance to those affected and financial instruments to support redress (Article 8(3)(e)-(g) Escazú). Under the Aarhus Convention, these elements are covered by the reference to adequate and effective remedies under Article 9(4) Aarhus. However, to obtain such remedies remains a central challenge in the region. As the Escazú Agreement recognizes, it is therefore important to spell out the extensive catalogue of different remedies that judges should have at their disposal.
Besides being a great step for the Latin American and Caribbean region, the Escazú Agreement can therefore also serve as a useful inspiration in implementing the rights under the Aarhus Convention. The next step will now be the (hopefully swift) signing and ratification of the Agreement. Then the Parties will have to agree at their first Conference on the institutional arrangements, including on the rules of procedure of an Implementation and Compliance Committee. In this process, the Escazú Parties will in turn hopefully be inspired by the open processes under the Aarhus Convention.
Access to Justice is a fundamental means through which citizens and NGOs can support the implementation and enforcement of laws and policies to protect the environment. The goal of this ATOJ-EARL project is to achieve “Access to Justice for a Greener Europe”. It strives to enhance access to justice in environmental matters by providing information, training and support for the judiciary, public authorities and lawyers of eight European member states. ClientEarth and Justice and Environment are implementing this project with the financial support of the European Commission’s LIFE instrument.