Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean (The Escazú Agreement)

During the Rio+20 summit of 2012, States agreed to launch a negotiation process to elaborate a regional instrument on the rights established by Principle 10 of the Rio Declaration (rights to information on environmental matters, to participation in decision-making processes and access to environmental justice) within the framework of the Economic Commission for Latin America and the Caribbean (ECLAC). After a long process of discussion and with the participation of environmental experts and academics, the Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean “The Escazú Agreement” was finally adopted in the city of Escazú (Costa Rica) in March 2018.

The Escazú Agreement is the first binding treaty on environmental and human rights issues for Latin American and Caribbean countries. It provides a platform for States in the region to strengthen their capacity to protect the right of all people and future generations to live in a healthy environment.

While the instrument does not elaborate a list of specific environmental rights, it establishes procedural guarantees for their protection. It focuses primarily on broadening the scope of the rights to participation, information and access to justice in environmental matters, and it sets out the obligations of States parties to protect environmental defenders.

The Escazú Agreement entered into force on 22 April 2021. It currently has 24 signatories and 12 ratifications (Antigua and Barbuda, Argentina, Bolivia, Ecuador, Guyana, Mexico, Nicaragua, Panama, Saint Vincent and the Grenadines, Saint Kitts and Nevis, Saint Lucia and Uruguay).

The full text of the Escazú agreement is available here: https://www.cepal.org/en/subsidiary-bodies/regional-agreement-access-information-public-participation-and-justice/text-regional-agreement

The United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (The Aarhus Convention)

The “Aarhus Convention” was adopted on 25th June 1998 in the Danish city of Aarhus, at the Fourth Ministerial Conference as part of the "Environment for Europe" process in the framework of the United Nations Economic Commission for Europe. It is the first binding multilateral European environmental treaty. It also allows establishes a complaint mechanism accessible not only to States but also to individuals and non-governmental organisations.

The Aahrus Convention rests on three main pillars:

Access to information: It guarantees the right of public access to environmental information held by public institutions and sets out the basic conditions for the exercise of this right. This encompasses the right of the public to seek information from public authorities and the obligation of public authorities to provide information in response to a request (Article 4) and the right of the public to receive information and the obligation of authorities to collect and disseminate information of public interest without the need for a specific request (Article 5).

Public participation in decision-making: The convention promotes public participation in decision-making processes affecting the environment. This concerns the participation of the public that may be interested or affected by a specific activity (Article 6), the participation of public in the development of environmental plans, programmes and policies (Article 7) and the participation in the the preparation of legal norms (Article 8). This principle relies upon the other two pillars to be effective.

Access to justice: The instrument provides the conditions for access to justice in environmental issues. It contributes to the implementation of access to information and environmental participation in domestic legal systems when these rights are compromised and other aspects concerning non-compliance with national environmental law. (Article 9)

Article 15 requires the Parties to establish arrangements of a non-confrontational, non-judicial and consultative nature to review compliance with the Convention. Accordingly, during the first Meeting of the Parties in 2002, an advanced compliance mechanism for the Convention was established: the Compliance Committee. This body is responsible for ensuring that parties comply with the convention and to do so, the committee may receive communications from both state parties and members of the publicUN Economic Commission For Europe, Decision I/7 Review of Compliance adopted at the first meeting of the Parties held in Lucca, Italy, on 21-23 October 2002, ECE/MP.PP/2/Add.8 2 April 2004.. As of today, 185 communications have been received from members of the public concerning questions of compliancehttps://unece.org/env/pp/cc/communications-from-the-public/.

The Aarhus Convention entered into force in October 2001 and it was ratified by the European Union in 2005 becoming an integral part of EU law and binding on its member States. As at December 2019 it has 47 parties (46 states parties and the EU).

Case C/1 (2004), Kazakhstan ACCC/C/2004/1A. Andrusevych, S. Kern (eds), Case Law of the Aarhus Convention Compliance Committee (2004- 2014), 3rd Edition, (RACSE, Lviv 2016).

On 7 February 2004, the Kazakh non-governmental organization Green Salvation submitted a communication to the Committee alleging non-compliance by Kazakhstan with its obligations under the Aarhus Convention. The communication concerned access to information related to the proposed draft act on the import and disposal of radioactive waste in Kazakhstan held by the state-owned atomic company Kazatomprom. The communicant claims that its right to information was violated when a request to Kazatomprom for information purporting to substantiate a proposal to import and dispose of foreign radioactive waste was not answered. Subsequent appeal procedures in courts of various jurisdictions and instances failed, in the communicant’s view, to meet the requirements of article 9, paragraph 1, of the Convention. According to the communication, the lawsuits were rejected first on grounds of jurisdiction and subsequently on procedural grounds as the [Kazak] courts did not acknowledge the right of a nongovernmental organization to file a suit under article 9, paragraph 1, in its own name rather than as an authorized representative of its members.

Consequently, in 2005 The Aarhus Compliance Committee considered first-hand that since the company is fully owned by the State, it falls under the definition of a “public authority” given by the Aarhus Convention. It further found that, by having failed to ensure that bodies performing public functions implement the provisions of article 4 of the Convention (access to information), Kazakhstan was not in compliance with that article. The Committee also found that the lengthy review procedure and denial of standing to the non-governmental organization in a lawsuit on access to environmental information, and the lack of clear regulation and guidance concerning the obligations of bodies performing public functions to provide information to the public and with regard to the implementation of access to justice was not in compliance with article 9 and article 3 of the ConventionUN Economic Commission For Europe, Compliance Committee, Communication ACCC/C/2004/01 by Green Salvation (Kazakhstan), ECE/MP.PP/C.1/2005/2/Add.1 11 March 2005, §§ 25, 26, 27..