Fostering environmental democracy in Latin America and the Caribbean: An analysis of the Regional Agreement on Environmental Access Rights
| DOI | http://doi.org/10.1111/reel.12274 |
| Published date | 01 July 2019 |
| Date | 01 July 2019 |
ORIGINAL ARTICLE
Fostering environmental democracy in Latin America and the
Caribbean: An analysis of the Regional Agreement on
Environmental Access Rights
Belén Olmos Giupponi
Correspondence
Email: Belen_Olmos_Giupponi@biari.brown.
edu
Principle 10 of the 1992 Rio Declaration laid the groundwork for the implementa-
tion of access to environmental information, public participation and access to envir-
onmental justice, which constitute the three pillars of environmental democracy.
The 2012 United Nations Conference on Sustainable Development marked a turning
point in this evolution as Latin American and Caribbean (LAC) countries launched
the negotiations for a treaty embodying these environmental rights. This process
resulted in the adoption of the Regional Agreement on Environmental Access Rights
(RAEAR) in March 2018. This presents a unique opportunity to reflect not only on
the RAEAR but, more broadly, on the implementation of environmental rights in
international environmental law. The article first addresses the question of the
delayed implementation of environmental democracy rights in LAC. It then critically
analyses the RAEAR provisions and the lessons to be learned from the negotiations.
Finally, the article underlines outstanding challenges in the implementation.
1
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INTRODUCTION
Principle 10 of the 1992 Rio Declaration has been pivotal for the
implementation of the rights to access to environmental information,
public participation in environmental decision making and access to
environmental justice (environmental access rights), which constitute
the three pillars of environmental democracy.
1
Relevant international
environmental law scholarship has considered the recognition of
these rights a quantum leap in the protection of human rights.
2
Ever since the adoption of the Rio Declaration, the implementa-
tion of environmental access rights in Latin America and the Carib-
bean (LAC) has been on the agenda of governments, international
organizations and nongovernmental organizations (NGOs). However,
specific proposals for an international legally binding instrument
were delayed. The 2012 United Nations (UN) Conference on
Sustainable Development (Rio+20) marked a turning point, as nine
LAC countries proposed a regional convention embodying environ-
mental access rights.
3
In their declaration, the signatory countries
endorsed the commitment to draft a regional agreement on environ-
mental access rights with the initial aim of concluding the negoti-
ations by December 2017.
4
The UN Economic Commission for Latin
America and the Caribbean (ECLAC) offered the necessary support,
acting as technical secretariat.
The roadmap set by the ECLAC for the adoption of this regional
agreement foresaw an ambitious agenda, laying the groundwork for
the approval of the final text. From the outset, stakeholder participa-
tion was crucial for drafting a text comprising the main environmen-
tal principles and access rights. To illustrate this, the international
network of hundreds of civil society groups called The Access Initia-
tive pledged to campaign for the adoption of the text in Chile, Costa
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1
Rio Declaration on Environment and Development in ‘Report of the United Nations Con-
ference on Environment and Development’UN Doc A/CONF.151/26 (vol I) (12 August
1992) Principle 10. On compliance with access rights, see <http://www.environmentalde
mocracyindex.org/>.
2
A Boyle, ‘Human Rights and the Environment: Where Next?’(2012) 23 European Journal
of International Law 613.
3
‘Resolution 686(XXXV), Application of Principle 10 in Latin America and the Caribbean’in
Economic Commission for Latin America and the Caribbean (ECLAC) ‘Biennial Report
(2012–2013)’UN Doc LC/G.2631‐P (2014).
4
From 2012 until March 2018, six meetings of the focal points of the signatory countries
and 14 meetings of working groups were held. The negotiations of the regional agreement
were opened in November 2014 with the creation of an ad hoc Committee.
DOI: 10.1111/reel.12274
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wileyonlinelibrary.com/journal/reel RECIEL. 2019;28:136–151.
Rica, the Dominican Republic, Jamaica, Mexico, Panama, Paraguay,
Peru and Uruguay.
5
Environmental access rights gained momentum as the negoti-
ations for a regional convention in LAC unfolded over four years.
Efforts came to fruition with the adoption of the Regional Agree-
ment on Access to Information, Public Participation and Access to
Justice in Environmental Matters in Latin America and the Carib-
bean on 4 March 2018 in Costa Rica (also known as the Escazú
Agreement). The conclusion of this Regional Agreement on Environ-
mental Access Rights (RAEAR) is a unique opportunity to reflect on
the adopted text as well as on the trajectory of environmental
access rights in international environmental law. Section 2 first
addresses the delayed implementation of environmental access
rights in LAC, examining the progress achieved so far. Section 3
then turns to the RAEAR, including its legal basis and main fea-
tures. Section 4 analyses how outstanding implementation chal-
lenges could be overcome through the RAEAR's compliance
mechanism, as well as through lessons learned from the experience
of the Aarhus Convention and the Inter‐American human rights
system (IAHRS).
6
Section 5 concludes with a discussion of the con-
vergence on environmental access rights, proposing an implementa-
tion strategy for the RAEAR.
2
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UNTANGLING THE PROTECTION OF
ENVIRONMENTAL ACCESS RIGHTS IN LATIN
AMERICA AND THE CARIBBEAN
The 1972 Stockholm Declaration ushered in a new era in the protec-
tion of environmental rights, recognizing the right ‘to freedom,
equality and adequate conditions of life, in an environment of a
quality that permits a life of dignity and well‐being’.
7
Principle 10
operated as the driver for legislative change in international environ-
mental law and national legal systems. Notwithstanding progress
made in international environmental law, the reception and full
implementation of environmental democracy rights
8
in some regions,
such as LAC, has been hindered due to multiple factors.
9
The protec-
tion of environmental rights in the region is multi‐layered, taking
place at different levels (national, regional and international). How-
ever, significant obstacles to the effective implementation of interna-
tional environmental law exist.
10
2.1
|
The legal landscape of environmental access
rights
Since the 1990s, a growing number of international environmental
treaties have encompassed environmental access rights.
11
In Europe,
the Convention on Access to Information, Public Participation in Deci-
sion‐making and Access to Justice in Environmental Matters (Aarhus
Convention) enshrined environmental access rights with a specific
scope and a regional focus.
12
Specific multilateral environmental
agreements (MEAs) also incorporate some environmental access rights
such as public participation: for instance, the Convention of Biological
Diversity (CBD),
13
the UN Framework Convention on Climate Change
(UNFCCC)
14
and the Minamata Convention,
15
among others.
Outside international environmental law, the implementation of
environmental access rights has been advanced through public
interest litigation before regional human rights courts.
16
Principle
10‐related issues have been argued in various manners and with
regional differences. In Europe, the European Court of Human Rights
(ECtHR) has chiefly relied on this principle to protect the right to a
private and family life in line with Article 8 of the European Conven-
tion of Human Rights and the freedom of expression as enshrined in
Article 10 in relation to access to environmental information.
17
In addressing the implementation of environmental access rights
vis-à-vis human rights norms, environmental law scholars draw the
distinction between the former as ‘procedural rights’
18
and the latter
as ‘substantive rights’.
19
Although the distinction may be useful to
dissect and analyse the panoply of rights from a theoretical stand-
point, both types of rights are interrelated in practice.
In LAC, environmental law scholars consider access to environ-
mental information as a fundamental part of the right to an adequate
environment enshrined in national constitutions. Severino Ortega, for
instance, underlines that the evolution towards the recognition of
5
<http://www.accessinitiative.org/>.
6
P Sands and J Peel, Principles of International Environmental Law (3rd edn, Cambridge
University Press 2012) 644.
7
‘Declaration of the UN Conference on the Human Environment’UN Doc A/CONF.48/14
(5 June 1972) 11 ILM 1416.
8
See n 1. See also the work and reports published by the UN Special Representative on
Human Rights and the Environment: <https://www.ohchr.org/en/Issues/environment/SRen
vironment/Pages/SRenvironmentIndex.aspx>.
9
ECLAC, ‘Observatory on Principle 10’<http://observatoriop10.cepal.org/es>.
10
J May and E Daly, Global Environmental Constitutionalism (Cambridge University Press
2016) 4.
11
J Viñuales, ‘The Rio Declaration on Environment and Development: Preliminary Study’in
J Viñuales (ed), The Rio Declaration on Environment and Development: A Commentary (Oxford
University Press 2015) 1, 32; J Ebbesson, ‘Principle 10’in Viñuales, ibid 287.
12
Convention on Access to Information, Public Participation in Decision‐making and Access
to Justice in Environmental Matters (adopted 25 June 1998, entered into force 30 October
2001) 2161 UNTS 447 (Aarhus Convention).
13
Convention on Biological Diversity (adopted 5 June 1992, entered into force 29 Decem-
ber 1993) 1760 UNTS 79 art 14.
14
United Nations Framework Convention on Climate Change (adopted 29 May 1992,
entered into force 21 March 1994) 1771 UNTS 107.
15
Minamata Convention on Mercury (adopted 10 October 2013, entered into force 16
August 2017) 55 ILM 582.
16
C Schall, ‘Public Interest Litigation Concerning Environmental Matters before Human
Rights’(2008) 20 Journal of Environmental Law 417.
17
See, e.g., Guerra and Others v Italy, App No 14967/89 (ECtHR, 19 February 1998) para
60; McGinley and Egan v United Kingdom, App No 21825/93 and 23414/94 (ECtHR, 9 July
1998) para 101; Taşkin and others v Turkey, App No 46117/99 (ECtHR, 10 November 2004)
para 119; and Roche v United Kingdom, App No 32555/96 (ECtHR, 19 October 2005) para
162.
18
May and Daly (n 10) 77.
19
See J Brunnée, ‘Procedure and Substance in International Environmental Law: Confused
at a Higher Level?’(2016) 5 ESIL Reflection 1; and B Peters, ‘Unpacking the Diversity of
Procedural Environmental Rights: The European Convention on Human Rights and the
Aarhus Convention’(2018) 30 Journal of Environmental Law 1.
OLMOS GIUPPONI
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