Ecology in Costa Rica – Escazú Agreements: Chile on the verge of rectifying, Costa Rica limiting itself with the others to… look?
“In the previous years of armed conflict there were many leaders who also suffered and were disappeared. Those who murdered my son thought that we were still in that era, in which a leader stood up to claim his rights and everyone else remained silent. But they were wrong, because I will not keep quiet“, Rodrigo Tot, Q’eqchi leader of Agua Caliente in Guatemala, interview to El País (Spain), article published on 10/02/2022.
On February 22, 2022, the Escazú Agreement completed ten months since it officially entered into force. It is the first environmental treaty in Latin America and the Caribbean.
At the regional and global level, it constitutes a unique international instrument, containing for the first time, specific provisions to protect those who defend the environment from their communities: in this regard, its imminent entry into force was celebrated by several universal human rights bodies of the United Nations, specifying in their joint communiqué that:
“The rest of the nations in the Latin American and Caribbean region should move quickly towards ratification of the Escazu Agreement to maximize the treaty’s effectiveness in protecting human rights in the face of today’s interconnected climate, biodiversity and pollution crises.“
(see official United Nations communiqué of November 9, 2020).
Despite this and many other calls, to date, out of a possible 33, only 12 States have ratified it (see official status of signatures and ratifications), and they will meet in Santiago de Chile (ECLAC headquarters) next April for what will be the first official meeting of States Parties to this innovative instrument.
Indeed, almost four years after its adoption in Costa Rica (on March 4, 2018), there are 24 signatures and 12 ratifications. In Latin America, Chile, Cuba, El Salvador, Honduras and Venezuela persist in not even registering their signature; while, among those that have signed it, Brazil, Colombia, Costa Rica, Guatemala, Haiti, Peru, Paraguay and the Dominican Republic persist in not ratifying it.
For those who are not very familiar with the process of approval of an international treaty, it is necessary to remember that as long as the Executive Branch does not sign an international treaty (a simple instruction, usually sent from the capital to its representative at the United Nations headquarters in New York to proceed to deposit a document that formalizes the signature of the State) there is no way to start a campaign in favor of its approval by the Legislative Branch: this is precisely what happens in the case of the States mentioned in the first list.
As will be recalled, this regional treaty was adopted in March 2018 in Costa Rica, after a long negotiation process of several years jointly led by Chile and Costa Rica. The full name of the Escazú Agreement (see the full text of its official Spanish version), is “Regional Agreement on Access to Information, Public Participation and Access to Justice in Environmental Matters in Latin America and the Caribbean“.
It is also of interest to specify that the specific provision regarding the need to protect environmental defenders is due to a joint initiative of Chile, Costa Rica, Panama, Paraguay and Peru, which shaped what finally became Article 9 of the Escazú Agreement approved in 2018 (see official note presented by this group of States to the other delegations during the negotiation process).
Recently (February 14, 2022), National Geographic magazine published a valuable article entitled “Defending the land, paying with their lives” about the distressing drama being experienced in several regions of Colombia: a situation very similar to that experienced by peasant populations in several other latitudes of the American continent. A Colombian columnist did not hesitate to write in the first weeks of the year 2022 that: “Our abundant natural resources in Colombia are a curse. And wanting to help conserve them, a death sentence” (see “Ecologist: profession in danger” published in El Espectador on 24/01/2022).
Chile: the urgency of time
The newly elected Chilean authorities have announced that they will rectify in the first days of their administration what happened during the administration of President Sebastián Piñera with this pioneering international agreement (see press release of 6/02/2022).
As will be well remembered, President Piñera took office on March 11, 2018, a week after the text that the administration of President Michelle Bachelet had promoted was approved in Escazú. In this regard, the title of this article published in El Pais (Spain) in September 2020 “Chile abandons the Escazú environmental agreement it led in the region” translates well the inconsistency and incoherence of the Chilean authorities since 2018 in refusing to even sign this regional instrument of vanguard for the region and for the world.
The (somewhat original) reasons given by the Chilean authorities for not signing it were analyzed in detail in this valuable joint article by two Chilean jurists, Valentina Durán Medina and Constance Nalegach Romero, entitled “Why Chile should adhere to the Escazú Agreement“, which is recommended reading. In September 2020, a document (see full text) without signature, nor indication of the departments from which it originates, nor consecutive number, nor further details that any good public administration includes in any of its offices, was disclosed by the Chilean authorities, reaffirming the reasons that prevent, according to them, Chile from signing the text. Instead of the signature, in the final part, our readers will note that it simply appears the mention “Ministerio del Medioambiente – Ministerio de Relaciones Exteriores” (Ministry of the Environment – Ministry of Foreign Affairs).
It is very likely that Chile’s accession will be very quickly registered at the United Nations by the new Executive Power as soon as it officially takes office (March 11, 2022); followed by lobbying with the political parties in the Legislative Power to approve it, with the objective of putting Chile in unison with a general clamor in Latin America and with the guidelines contained in the Escazú Agreement in terms of environmental justice and the rights of those who defend the environment.
These guidelines also coincide not only with those promoted by various United Nations human rights organizations, but also – although not widely publicized in some political and economic circles – with those of the OECD itself or the World Bank (see official communiqué of the latter celebrating its entry into force on April 22, 2021).
It is therefore very likely, despite the time pressure, that Chile will be able to participate in the meeting scheduled to take place in Santiago on April 21, 2022, which will be the first COP1 (Conference of Parties).
The Preparatory Conference for COP1 (“PreCOP1”) was set by ECLAC to take place on March 4, 2022, a date on which the Escazú Agreement will be exactly 4 years since its adoption in Costa Rica (see ECLAC press release).
Costa Rica: a persistent question mark
As far as Costa Rica is concerned, the failure to ratify an instrument named after one of its cantons and dealing with the environment and human rights – two traditional pillars of Costa Rica’s foreign policy on which it has based its international image and prestige – continues to raise questions among numerous international observers and organizations, both in Latin America and elsewhere.
This unusual absence of Costa Rica is less and less understandable as time goes by: States such as Bolivia and Uruguay (2019), Ecuador, Panama and Nicaragua (2020), as well as Argentina and Mexico (2021) have already ratified the Escazú Agreement without generating any kind of problem. In 2022, it is very likely that some political changes in South America (in addition to the one in Chile) will lead to several new ratifications.
It should be recalled that in February 2020, in the first debate, it was adopted with 44 votes in favor and 0 against in the Costa Rican Legislative Assembly. Several of the current legislators later changed their minds, due to the strong pressure exerted by several Costa Rican business chambers that oppose this instrument based on alleged “arguments“, whose authors avoid public debate with environmental specialists (Note 1).
The headline of this April 2021 press release, which reads “Escazú Agreement will enter into force without the ratification of Costa Rica, one of its promoters“, from the radio program Amelia Rueda, reflects (as in the case of Chile), the incoherence and inconsistency of the Costa Rican authorities.
Costa Rican Judiciary’s oddities with respect to the Escazú Agreement
It is noteworthy the fact that, from the Constitutional Chamber, only one judge, Paul Rueda Leal (out of seven members) showed the unnecessary complication that this jurisdiction meant in 2020 to the approval of the Escazú Agreement, based on more than questionable arguments and a change in its jurisprudential line (Note 2).
In this regard, it is worth noting that in none of the 12 States that have already ratified the Escazú Agreement – as well as Peru (see opinion of the Judiciary contained in this official document) – did their judiciaries express a criterion as unusual (and erroneous) as that of the Full Court of the Costa Rican Judiciary: according to the latter, the Escazú Agreement would entail an additional expense for the operation and a charge to the finances of the Costa Rican Judiciary. This reading, so isolated in the continent, further reinforces what was stated by the aforementioned magistrate in his first dissenting opinion of March 2020, when he pointed out the completely erroneous reading made by the Full Court and by the majority of the Constitutional Chamber (see full text of judgment 06134-2020 of March 2020):
“It is easy to see that this rule at no time imposes on the Judiciary the obligation to provide free technical assistance, which should be implemented based on the conditions of the legal system of each country“.
The same magistrate, in a second decision of August 2020 (see text of sentence 015523-2020) explained in detail the sudden change of jurisprudential line to which the Chamber proceeded, but not before concluding his dissenting vote by stating that:
“With the foregoing, it is evident that the position of the majority disregards the powers of the Assembly and the procedure established by internal corporis. Based on the above arguments, I consider it viable that the Plenary should consult the Judiciary, correct the omission and continue with the due legislative procedure, as occurred in the sub examine. The contrary position, chosen by the majority of the Chamber, results in an evident delay in the parliamentary procedure of the project “Approval of the Regional Agreement on access to information, public participation and access to justice in environmental matters in Latin America and the Caribbean (Escazu Agreement)“.
In addition to these strange actions of the Costa Rican constitutional justice, there are other anomalies of the judicial apparatus, apparently determined to postpone or hinder, in one way or another, the approval process of the Escazú Agreement. In this article published in April 2021 we read that Patricia Madrigal Cordero, who was the negotiator on behalf of Costa Rica for the Escazú Agreement:
“First, it departs from the criteria of the technical services of the Legislative Assembly… and it also departs from the criteria of the technical services of the Judicial Branch, which considers that this bill does not affect in an organic manner the operation of the Judicial Branch and even less in the case of a human rights treaty”, continued the former vice-minister.”Second, Judge Nancy Hernández, in a note, manifests her interpretative concerns of the Escazú Agreement, which coincidentally are the same that the Costa Rican Union of Chambers and Associations of the Private Business Sector (UCCAEP) has found to oppose the bill”, added Madrigal“.
Unless we are mistaken, this set of oddities coming from the Judiciary that tend to complicate the approval of the Escazú Agreement has not been systematized. It is suggested to researchers and specialists in the field to carry out a thorough analysis of the process undergone by the Escazú Agreement in the face of such an original interpretation in order to explain to us where such unusual pettiness of the Costa Rican constitutional judge could come from, comparing (for example) the criteria issued for the approval of other international treaties containing provisions formulated in a very similar way to those of the Escazú Agreement: it is possible that his conclusions tend to consolidate the idea that, for reasons that we believe should be known, the Escazú Agreement has very determined detractors within the Judiciary itself.
The alleged “arguments” against Escazú: an ease of refutation that deserves mentioning
A few months ago, the Costa Rican Association of International Law (ACODI) published a valuable article that once again refutes the false arguments and true myths created by some Costa Rican business chambers (and their always helpful political tokens) against this instrument: see article entitled “The Escazu Agreement without Costa Rica“, which we recommend reading. Likewise, we would like to refer the reader to a very valuable effort of DobleCheck‘s team of journalists, which examined in detail each one of the arguments of an influential business chamber (see document), in which we can read that:
“Doble Check spoke on Friday, April 23 with Alvaro Jenkins, president of UCCAEP, who directed inquiries to executive director Fabio Masís. Masís directed our inquiries today, Monday, to the press department, who indicated that they would not be able to respond until the afternoon of Wednesday, April 28. Double Check will update this story if responses arrive by then.” As of this writing, the aforementioned note has remained unchanged since April 2021.
You can also consult the article by the same academic, Mario Peña Chacón (see full text) entitled precisely “Demystifying the Escazú Agreement” and published in the Costa Rican legal site DerechoalDia. An expanded version of the same study was made available to the public by the Graduate Studies System (SEP) of the Law School of the University of Costa Rica (UCR) – see link – on December 1, 2020.
Finally, regarding the specific point of the reversal of the burden of proof in environmental matters that seems to be of such concern to these business chambers (as well as to a magistrate of the Constitutional Chamber), an article of the same specialist in environmental law of October 2019 (also published by the SEP of the UCR), clearly explained that this is a principle that has been accepted in Costa Rican legislation and in the jurisprudence of Costa Rican courts for many years now, and that, apparently, the aforementioned magistrate of the Constitutional Chamber is completely unaware of (Note 3).
A real disinformation campaign orchestrated by the business sectors and their chips.
For several months now, in Costa Rica, Chile, Colombia, Guatemala, Peru and Paraguay, the discussion of the Escazú Agreement in their respective congresses has been polarized due to a real disinformation campaign, generated from various political and business circles, making use of a creativity rarely seen to justify opposition to this regional agreement.
As an example, among many others, we can refer to this document signed by high military commanders in Peru on the alleged loss of sovereignty in the Peruvian Amazon (see full text), or to this announcement by Paraguayan chambers of the agricultural sector (see full text): our esteemed readers will be able to appreciate for themselves the scope of this creativity. In Paraguay, moreover, the Executive Power felt obliged to withdraw the text in the process of approval in 2019 due to criticisms (as unusual as unfounded) from the Catholic Church associating the Escazú Agreement to abortion (see UltimaHora article of 2/12/2019). In Costa Rica, an executive of the national chamber of pineapple exporters (CANAPEP) referred to the Escazú Agreement as “a barbarity that they want to approve” (see CRHoy article of 12/15/2020).
It should be noted that recently (February 25, 2022) the same CANAPEP and seven 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 text of the letter) indicating that “said Agreement contains unconstitutional flaws, inaccuracies and errors of substance highly risky for the stability of the productive sector” and concluding their letter by requesting “to proceed with 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“.
An objective reality that refutes the alleged “arguments” against Escazú
In order to assess the relevance of the reasons put forward by these productive sectors (as well as their political allies) in Costa Rica but also in other latitudes, we invite our esteemed readers to ask themselves some of the following questions: in the Latin American States that have already ratified this novel regional instrument (Argentina, Bolivia, Ecuador, Mexico, Nicaragua, Panama or Uruguay), have their economies suffered any of the alleged negative effects that, according to the opponents of the Escazú Agreement, its approval would entail?Has any kind of legal insecurity been created, has foreign investment in the countries that have not yet approved the Escazú Agreement been driven away, and have some of their products lost competitiveness? Or has it been observed in one of them how the productive sector has been destabilized?
Similarly, in order to calm the (unfounded) fears of the Peruvian military and sectors close to them, it should be noted that none of the armies of the aforementioned States have ceded a single iota of territorial sovereignty.
This objective and observable reality also applies to the claims of the Colombian, Guatemalan, Paraguayan and Peruvian business leaders (and their always loyal political tokens) against the Escazú Agreement: their alleged “arguments” have been equally rejected by universities and social organizations, leading them to explore various communication tools in the face of what they describe as a real disinformation campaign against the Escazú Agreement by several Latin American media outlets (Note 4).
Nor has it been observed that the principle of reversal of the burden in environmental matters has in the least eroded, in criminal matters, the presumption of innocence in the 12 States Parties to the Escazú Agreement: it is a modern principle of environmental law that, at least in the case of Costa Rica, has been applied for many years, and that in no way threatens other spheres of the legal system.
With regard to the disinformation campaign of some business leaders, in a very complete interview (see text) during his recent visit to Peru, the UN Special Rapporteur on Human Rights and Toxic Substances, Marco Orellana, indicated that: “what we are seeing are totally irresponsible disinformation campaigns by some business groups that see the agreement as a threat to their production activities. But the markets of the future will belong to the companies that show a true commitment to environmental and social standards“.
Chile and Costa Rica: two States in the spotlight
However, considering that Chile and Costa Rica were both undisputed leaders during the more than five and a half years that the Escazú Agreement negotiations with the other 31 state delegations lasted, their surprising absence from the list of States Parties in 2022 has an effect that transcends their borders.
Indeed, the fact that they are not States Parties offers an unexpected argument for the most determined opponents of this treaty: in particular for some Latin American business leaders, who are determined not to allow any kind of citizen participation in environmental matters or to strengthen environmental justice, much less to offer any kind of protection for those who speak out in their communities.
An interview we had the privilege of having recently on Chilean television with the Chilean negotiator of the Escazú Agreement during the negotiation process, Constance Nalegach Romero (see video), details the inconsistencies of various kinds that Costa Rica and Chile currently share with other members of the international community.
Given that Chile may soon close the unfortunate parenthesis that its current President has meant in many areas related to environment and human rights (Note 5), will it be feasible to rectify before Chile (or at the same time as Chile) its non-approval, or will Costa Rica want to risk continuing to “show off” internationally, turning its back on a treaty that seeks to protect those who defend the environment, promote transparency as well as accountability (Note 6)?
Your current Executive, as well as the 57 current members of your Legislative Assembly have the floor until April 30: the latter are still in time to recognize that they were wrong (and quite wrong) in changing their minds about the Escazú Agreement based on arguments that are not. The argument heard during the current electoral campaign according to which the regulations in Costa Rica are sufficiently advanced so that it is unnecessary to approve the Escazú Agreement is rather weak. It is enough, to be convinced of this, to observe the lack of protection of those who defend the environment against threats of all kinds that they receive in some communities; or, among many other aspects, the difficulty to obtain technical reports on environmental matters from state entities: this is a situation that the same University Council of the UCR experienced in 2018, when requesting information on the effects of pineapple plantations on the health of the surrounding communities (Note 7). Recently, the Constitutional Chamber accepted an appeal for disobedience demanding the health authorities to determine and disclose the extent of arsenic contamination in the water in the regions of Cañas and Bagaces, and to deliver all the information they have on the effects detected on human health (Note 8).
Leaving aside the legal adjustments that the Escazu Agreement would allow Costa Rica to make in order to significantly improve various aspects of citizen participation, access to environmental information and the effectiveness of environmental justice, it would be desirable that by March 4, Costa Rica could officially announce something halfway decent in relation to the approval of this pioneering instrument worldwide.
More generally, with regard to Costa Rica and the other States that still maintain a distance from the Escazú Agreement despite observing, sometimes month after month, how leaders of small peasant or indigenous communities who raise their voices are intimidated and physically eliminated, we endorse the conclusions of a valuable article written by two Chilean jurists entitled “The need for an environmental democracy in Latin America: the Escazú Agreement” in which they point out, with a clarity that can leave no one indifferent, that:
“It has been rightly pointed out that the Escazú Agreement is both an environmental instrument and a human rights treaty. Thanks to this dual dimension, the commitments that States have assumed in favor of sustainable development -as well as those derived from international human rights law- are reinforced by 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” (Note 9).
-Notes – –
Note 1: In fact, as soon as the communiqué of an influential business chamber in Costa Rica against the Escazú Agreement was known in April 2021, its legal representatives were invited to a virtual public debate with two academics specialized in environmental law, which they chose not to attend: see the broadcast of Café para tres of the Costa Rican digital media Delfino.cr with the two academics invited to “debate” with the absentees. In May 2021, a second attempt from the UCR confirmed the aforementioned reluctance to debate (see forum in this official UCR link). In June 2021, it was this time from the College of Biologists of Costa Rica that confirmed, for the third consecutive time, that avoiding the debate seems to be, for some, the agreed way to defend their supposed “arguments” (see forum).
Note 2: Regarding the unnecessary complication that the Constitutional Chamber has generated in the approval process of this regional treaty in Costa Rica, see the section “The peculiar situation of the Escazú Agreement in Costa Rica” in our brief analysis: BOEGLIN N. , “La reciente aprobación del Acuerdo de Escazú por parte del Senado de México: breves apuntes“, DerechoalDía, edition of 11/18/2020, available at this link, in which we allow ourselves to indicate that: “The total regression of the Costa Rican constitutional judge in relation to citizen participation in environmental matters expressed in a decision of 2017 could explain its deep reservation with respect to an international treaty adopted later in 2018, and which seeks precisely to expand and consolidate it”.
Note 3: See PEÑA CHACÓN M. , “Acuerdo de Escazú y la carga de la prueba ambiental en Costa Rica“, Portal del Sistema de Estudios de Posgrado (SEP), Derecho, Universidad de Costa Rica (UCR), October 2019, available at this link.
Note 4: In Colombia, the organization Ambiente y Sociedad published this other contribution entitled “Mitos y verdades del Acuerdo de Escazú” (Myths and truths of the Escazú Agreement), available at this link. In Peru, the Peruvian Society for Environmental Law (SPDA) published this article entitled “10 myths and truths about the Escazú Agreement: democracy and environmental defenders“. In Paraguay, the website El Surti explained in a text entitled “Five points for you to understand how the Escazú Agreement affects you” that abortion is in no way contemplated in the Escazú Agreement, among many other legends that originated in Paraguayan society in relation to the Escazú Agreement. In audiovisual matters, universities and NGOs have spared no talent and creativity in trying to demystify the Escazú Agreement: in Colombia, the talented team of communicators of La Pulla made a high quality video that seeks to respond to the various political maneuvers of some Colombian political sectors, entitled “La nueva trampa que nos quieren hacer los congresistas” (“The new trap that the congressmen want to set for us”) (available here). In Costa Rica, given the evident lack of political will to approve the Escazú Agreement, the University of Costa Rica (UCR) recently produced two short videos, which I personally recommend: The Escazú Agreement and environmental defenders, available on YouTube here, and another video entitled UCCAEP and the Escazú Agreement, available here.
Note 5: In this regard, it is recommended to read the recommendations made by the Inter-American Commission on Human Rights to the Chilean State on this precise matter (pp.116-124) in a recent report released in January 2022 (see full text).
Note 6: On November 25, 2021, ECLAC released a new publication on the scope of the Escazú Agreement, which we also recommend reading: it is entitled “The Escazú Agreement on Environmental Democracy and its relationship with the 2030 Agenda for Sustainable Development”, which brings together various contributions from renowned specialists from different parts of the Americas. The full text of the document (298 pages), which we recommend reading in its entirety, is available at this official ECLAC link.
Note 7: Indeed, when reading carefully the pronouncement of the University Council of the UCR on the pineapple expansion of November 2018 (see text), one reads in the box in paragraph 8 that of all the state entities requested, it was only the two entities of the health system that delivered “insufficient information“. Unless we are mistaken, to date there is no known report on the health pathologies of the people working on the pineapple farms and the surrounding communities that drink water contaminated by the chemicals used for the production of the MD-2 (or “Sweet Gold”) variety. Films 23-25 of the presentation of the expert Clemens Ruepert (IRET/UNA) during his presentation in 2013 during a session of the Water Tribunal on what was found in the dust of two schools (see presentation) gives an idea of what children, teachers and in general communities exposed to the chemicals sprayed with some regularity in Costa Rican pineapple plantations are breathing. Personally, we find it unbelievable that the Costa Rican government has not bothered to systematize or even record the various negative effects on human health in rural communities caused by pineapple expansion since 2007. A pronouncement of the same University Council in December 2008 recommended (see full text) a moratorium for new pineapple plantations until: “b. The necessary controls are exercised and studies are available to demonstrate, reliably, that the pineapple activity is causing the least possible impact on the environment and environmental health, including that of the people living in the vicinity of the crops.” In 2018, we had the opportunity to refer to the documentary made by DW Germany entitled “Costa Rica, the price of pineapple” (see link on Youtube): see our article published in the digital media Delfino.cr, entitled “A propósito de un reportage sobre la piña costarricense difundido por la DW“. In it we pointed out something that possibly many housewives, kitchen employees and in general fruit and food handlers in Costa Rica ignore when indicating that: “The latter is completed in a very interesting way with samples analyzed in an independent German laboratory (from minute 22:36): among several findings, the lab technician recommends extreme caution when handling the fruit in a kitchen, as its leaves contain chemicals that are extremely harmful to human health that are released (and do not permeate the pulp or peel of the fruit exported to Germany).”
Note 8: In a judgment on disobedience dated January 7, 2022, it reads that the Constitutional Chamber “orders Daniel Salas Peraza, in his capacity as Minister of Health, or whoever occupies that position, to coordinate what is necessary, issue the pertinent orders and carry out all the actions that are within the scope of his competencies so that, within the term of fifteen days, counted from the notification of this judgment, what is requested by the plaintiff in the management of September 6, 2021, is attended to in accordance with the law.” See Case No. 21-023543-0007-CO, sentence 469-2022 and one of the few notes published on the matter.
Note 9: 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.
This article was written by Nicolas Boeglin, Professor of International Public Law, School of Law, University of Costa Rica (UCR).