Escazú Agreement: imminent approval by Colombia further isolates Costa Rica
Escazú Agreement: Colombia is Very Close to Officially Becoming a State Party after Chile (2022), Argentina and Mexico (2021). Reflections from Costa Rica
On November 5, 2022, the President of Colombia sanctioned with his signature the Escazú Agreement, after it was approved by both chambers of the Colombian Legislative Power (see the official article issued by the Colombian Foreign Ministry and the communiqué issued by the environmental authorities on November 14).
As will be recalled, the Escazú Agreement is an international treaty adopted under the auspices of the United Nations Economic Commission for Latin America and the Caribbean (ECLAC) in March 2018 in Costa Rica by 33 delegations from Latin America and the Caribbean and consists of 26 articles (the text is available at this link): its objective is to translate into legal terms Principle 10 of the 1992 Rio Declaration on informed public participation in environmental matters. The Escazu Agreement officially entered into force on April 22, 2021, with 12 States Parties, being Argentina and Mexico the States that made it possible to reach the necessary number for its entry into force: the current status of signatures and ratifications is available at this official link of the United Nations.
An Escazucan month of November
In this same month of November 2022, on the occasion of the COP27 held in Sharm El Sheikh (Egypt), the same Latin American and Caribbean region expressed itself through the Community of Latin American and Caribbean States (CELAC) through an official document, entitled “Official Document of the Meeting of High Level Authorities on Climate Change of CELAC” dated November 9, 2022 (see link), which reads – in point 6 – that the States of the region:
6. Recognize the progress of the countries of the region in the fight for climate justice through the entry into force of the Regional Agreement on Access to Information, Public Participation and Access to Justice in Environmental Matters in Latin America and the Caribbean
This way of greeting, in the framework of a world conference on climate change, the progress of the Escazú Agreement in the region is commendable on the part of CELAC (and of several of the 33 States that make up this regional forum), denoting the active work carried out within CELAC by the States Parties to the Escazú Agreement. Hopefully this will be replicated in other spaces at both universal and regional level, where the mention of Escazú in resolutions on environment and human rights still does not appear: this is for example the case of a recent resolution adopted by the United Nations General Assembly in July 2022 (see text in the box corresponding to A/RES/76/300 or in this link). In this regard, it should have been ECLAC that, in welcoming its adoption, made visible the intrinsic relationship of this resolution with the Escazú Agreement, which was ignored – for some reason that would be interesting to know – by the States promoting the resolution (see its official communiqué).
At the previous world summit held in Glasgow (Scotland), in November 2021, an event on the Escazú Agreement (see program) brought together delegates and various international cooperation entities, under the auspices of ECLAC, during the same COP26.
It should be noted that during the last week of November 2022, the Escazú Agreement will focus the attention of the media, civil society organizations and international entities, when the “First Annual Forum of Human Rights Defenders on Environmental Issues” will be held in Quito within the framework of the Escazú Agreement (see preliminary program and the official link to participate): as can be seen in the program, environmental organizations and defenders will participate in this event, as well as authorities from States that are not necessarily parties to the Escazú Agreement.
Brief account of the accession process in Colombia and Chile
Last October 10, 2022, in Colombia, the House of Representatives approved the Escazú Agreement (see its official note): the vote registered an overwhelming majority of 119 votes in favor and only one against. Weeks earlier, in the Colombian Senate this time, in the second debate, the approval of the Escazú Agreement had registered 74 votes in favor and 22 against (see this article from El Nuevo Siglo, July 26, 2022).
Once sanctioned by the Colombian Executive Power, the approval process of the Escazú Agreement foresees an additional formality, which is its examination by the Constitutional Court. With respect to the latter, an article on the Colombian Constitution of 1991 and the Escazú Agreement (and whose reading is recommended, particularly by constitutionalist colleagues), written by two Colombian jurists, explains how complementary and harmonious the relationship between the two texts is (Note 1). We call on colleagues to replicate this type of academic exercise in other parts of the continent with the constitutional texts in force in Latin America: if this had been done, it would have undoubtedly cleared up doubts in various parts of the continent.
This news coming from Colombia for the Escazú Agreement is reminiscent of other news recorded in mid 2022. In fact, in the last week of June 2022, the United Nations General Secretariat updated the official status of signatures and ratifications of the Escazú Agreement: as of June 13, the United Nations General Secretariat’s Treaty Office registered the instrument of accession number 13, formally deposited by the Chilean Executive Power.
The way in which Colombia is preparing to become a State Party very soon in 2022 and Chile acceded to the Escazú Agreement last June, and the level of consensus with which it was approved in both States, now raise some very valid questions: particularly in those States where the detractors of the Escazú Agreement referred to the heated discussion in Colombia (and previously in Chile), as an “argument” for not approving this regional treaty. In this regard, the document “Myths and Truths / Escazu Agreement” circulated in April 2022 within the Chamber of Deputies of Chile (see link) by promoters of this treaty gives an idea of the level of creativity of Chilean detractors to this treaty.
With regard to Costa Rica, the accession of Colombia after that of Chile, preceded in 2021 by Argentina and Mexico, places it in an even more isolated and uncomfortable situation, confirming, in passing, the pronounced solitude of the Costa Rican Judiciary in Latin America, as we will point out below. As will be recalled, Costa Rica and Chile led the arduous negotiation process that lasted exactly 5 years, 7 months and 7 days before culminating successfully in Costa Rica in March 2018. Such is the uneasiness and displeasure that the Escazú Agreement is currently generating in some Costa Rican political circles, that in a recent interview published in El País of Spain, the current head of Costa Rica’s environmental portfolio, found no other response than to suggest changing the name of the Escazú Agreement: it reads textually that “I suggest that they change the name, if they want” (sic.) (see the article containing said interview, published in the edition of September 2, 2022).
A detail about numbers that is worth mentioning
Beyond the things that sometimes a Costa Rican Minister of Environment declares to the international press media, a small recount of numbers is necessary: in addition to the aforementioned votes registered in both chambers in Colombia, it is appropriate to specify the numbers obtained in the two chambers of the Chilean Legislative Power in less than 20 days in the month of May 2022 in favor of the Escazú Agreement:
- On May 11, the Chamber of Deputies approved it with 105 votes in favor, 34 against and 3 abstentions;
- On May 31, the Senate approved it with 31 votes in favor, 3 against and 11 abstentions.
These unquestionable majorities show that the supposed “arguments” against the Escazu Agreement heard at the time in Santiago and Bogota no longer impress only a very few, and that they are part of the past. And above all, these overwhelming majorities illustrate the following fact: when an Executive Branch (unlike the current Costa Rican Executive Branch and its predecessor) takes the time to explain the scope of this treaty, and to break down the alleged “arguments” against it, the latter do not manage to hold for long: they vanish, like the morning mist as the first rays of the sun rise.
In turn, these figures achieved in Colombia and Chile remind us that in November 2020, the Mexican Senate approved the Escazú Agreement unanimously (see the official communiqué of its Senate), that in September 2020, in Argentina, the vote in the Chamber of Deputies registered 240 votes in favor, 4 against and 2 abstentions (see official note) and that in 2019, the bicameral Parliament of Uruguay approved it unanimously (see fact sheet).
As indicated above, as of June 13, 2022, thanks to Chile, the number of States Parties to the Escazu Agreement rose to 13, and Colombia is poised to be the number to 14 in the coming months in this 2022.
A long-awaited rectification
The approval of the Escazú Agreement is a great achievement of the current Executive Powers in Colombia and Chile. In the case of the latter, this approval put an end to an unnecessary polarization that began in mid-2018 with the outright refusal of the Chilean authorities to even sign this cutting-edge regional instrument for the region and for the world.
Of very short memory, it is worth recalling that in the month of September 2018, Chile did not even send a delegate to the grand official ceremony at the United Nations headquarters in New York for the official opening of the Escazú Agreement for signature by the 33 Member States of the United Nations Economic Commission for Latin America (ECLAC): an unusual gesture by a puzzling administration such as that of President Sebastián Piñera, never before observed in the precincts of the United Nations General Assembly.
The mobilization of an important sector of Chilean civil society requesting that the Executive Branch reconsider such an unusual position (see the collective letter circulated in September 2018) did not achieve greater effect. The fact that, from the Vatican, the Latin American Conference of Religious (CLAR) reiterated in 2020 to Chile (and to the other States of the region) the need to approve the Escazú Agreement (see VaticanNews article) met the same fate: It is interesting to note that not all the leaders of the Catholic Church echoed this call in some States, and that several political groupings in Latin America that – at least officially – claim to be part of the Social Doctrine of the Church ignored this appeal.
Escazú: an avant-garde instrument
Escazú has been described by many specialists as a modern instrument for environmental management and governance from various perspectives and disciplines (Note 2).
Such is the visionary nature of Escazú that on June 24, 2022, the United Nations Economic Commission for Europe (UNECE) announced the appointment of a rapporteur on environmental defenders (see the official UNECE communiqué), inspired by the debates and the indisputable and unquestionable achievements of the Escazú Agreement, not contemplated in the Aarhus Convention (Note 3). As will be recalled, Escazú (2018) is the equivalent for Latin America and the Caribbean of the Aarhus Convention (1998) in Europe.
This is further evidence of the clear vision that the States that conceived the Escazú Agreement had from the outset, and which should reinforce in Latin America and the Caribbean the conviction of its urgent and much-needed approval.
In April 2022, ECLAC disseminated an implementation guide (almost 200 pages long) of the Escazú Agreement, highly recommended reading for social organizations, as well as for public entities and interested public in general: we suggest to (discreetly …) send a copy to the current head of the environmental portfolio in Costa Rica.
In early July, Argentina announced (see this press release) a public consultation to improve its national strategy on climate change, a consultation that is part of the guidelines of the Escazú Agreement.
Whether or not they are States Parties to the Escazú Agreement, the implementation of Article 9 on the protection of environmental defenders should be of priority interest to many States in which, week after week, people who raise their voices in defense of their communities are murdered; and other States in which leaders of small urban, rural and/or indigenous communities (often women) are criminalized and suffer various forms of pressure and intimidation when they demand compliance with current environmental legislation.
In the case of Costa Rica, a valuable publication entitled “Una memoria que se transforma en lucha: 30 años de criminalización del movimiento ecologista en Costa Rica” documents a reality far removed from the image of green and peaceful democracy promoted internationally by the Costa Rican State over the last 30 years. A recent report presented by the United Nations Special Rapporteur on the rights of indigenous peoples in September 2022 recommends Costa Rica to ratify the Escazú Agreement without further ado, given the situation of total defenselessness suffered by leaders of several Costa Rican indigenous communities, two of them having been assassinated in less than a year between March 2019 and February 2020 (Note 4).
Recently in Argentina, protection measures were requested to protect an environmental defender from a state entity (see this article of July 25, 2022): an attitude of the State that would be extremely opportune to extend to many more people in other latitudes of the American continent.
Chile and Colombia move forward with Escazú …
In June 2022, Chile succeeded in depositing its accession at the United Nations a few days after the festivities of International Environment Day. It is noteworthy that other States, like Chile, when ratifying the Escazú Agreement, were careful to deposit their formal instrument of ratification at the United Nations on symbolic dates for the Environment and for the Escazú Agreement itself (Note 5).
Days before June 5, Chile’s Environmental Evaluation Service (SEA) also issued an instruction (see text) that should already inspire many other Latin American States on the participation of affected or potentially impacted communities.
It is also noteworthy that on June 22, 2022, the three Chilean ministers (Environment, Foreign Affairs and Justice) met to draw up a roadmap for the implementation of the Escazú Agreement (see official communiqué from the Ministry of Justice). A few weeks earlier, the head of Chile’s Agriculture Ministry expressed views (see official communiqué) on the Escazú Agreement that should inspire some of his counterparts in Latin America to change their minds, stating that:
conflicts are based on the lack of trust between the actors and for that information and participation is fundamental. This treaty obliges us to faithfully comply with the participation and information for sustainable environmental decisions of a ministry committed to green agriculture.
There is no doubt that the Escazú Agreement has found in Chile in 2022 one of the government teams that best understands the scope of its content and exemplifies to others how to implement and materialize the principles it sets out. After the first Conference of the Parties (COP) held in Chile in April 2022, which we had the opportunity to analyze, the second one will be held … also in Chile in 2024, while an intermediate meeting will be held in 2023 in Argentina.
Given the proximity of the processes in Chile and Colombia, it is very likely that the outstanding work done by the current authorities in Chile will inspire decision-makers in Colombia as soon as, or even before, the instrument of accession is officially deposited at the United Nations. As in Chile, the new Colombian Executive Branch proceeded to explain the scope of this regional treaty, thus revealing the hesitations, stumbling blocks and maneuvers of all kinds generated by the outgoing Colombian Executive Branch itself. This was made clear early on by the person who assumed the Presidency of the Colombian Senate on July 20, 2022 in an interview. As in Chile, the forcefulness of the figures obtained in both chambers in Colombia shows the weakness of the supposed “reasons” to oppose Escazú.
… and prospects open up for Escazú
In the Spanish-speaking and Latin Caribbean countries, Haiti and the Dominican Republic remain without having approved the Escazú Agreement in their respective congresses, while Cuba has not even signed it.
In the Andean Region, Peru is now the only State not to have approved the Escazú Agreement. In August 2022, we had the opportunity to express our views on the appointment, as head of the Peruvian diplomacy, of an opponent to the Escazú Agreement (see our interview published in Servindi’s digital media): this episode showed the extreme care that must be taken when appointing a new member of the current Peruvian cabinet.
Beyond the institutional crisis in Lima in 2022, Peru’s situation is similar to that of Brazil and Paraguay in relation to the Escazu Agreement: the treaty was signed by the Executive Branch and has not yet been approved by the Legislative. The dramatic parenthesis that President Bolsonaro’s administration in Brazil represents for the environment and human rights (Note 6) will end in 2022, opening the door for a calm discussion on the Escazú Agreement. Let us note that Venezuela, unlike Brazil and Paraguay, has chosen not to sign this treaty.
In Central America, in addition to the particular situation of Costa Rica, which we will analyze later, El Salvador and Honduras continue with an Executive that to date has not signed the Escazú Agreement either. Guatemala has signed it, but the approval process (as in Costa Rica) has been suspended due to strong opposition from the business sector and its political representatives. With regard to Honduras, the signing of the Escazú Agreement constitutes an important political gesture that could well materialize in the future, considering that the date of March 4 to adopt the Escazú Agreement in 2018 was chosen as a Latin American and Caribbean tribute to the birthday of Berta Cáceres, a Honduran Lenca leader assassinated in Honduras in 2016: the mastermind of this murder was convicted last June 21 (see BBC story), while doubts persist about the repeated negligence of the European banking entities in charge of the Agua Zarca hydroelectric project. On June 30, 2022, the NGO Human Rights Watch sent a lengthy petition to the Honduran authorities (see text) requesting the signing and prompt approval of the Escazú Agreement, noting that:
At least 10 human rights defenders were killed in 2021, the Office of the United Nations High Commissioner for Human Rights (OHCHR) indicated, while 199 human rights defenders suffered harassment, threats, or attacks that same year. Of that number, 80% were defending land or environmental rights. In almost all cases, threats and attacks against human rights defenders go unpunished.
In the first days of July 2022, information campaigns were reported in Honduras on the Escazú Agreement (see article in La Tribuna de Honduras) that could well be replicated in other latitudes. It should be reiterated that Honduras, like Cuba, El Salvador and Venezuela, remains among the States that have not even signed the Escazú Agreement.
Finally, it is necessary to mention this official document prepared by the authorities of Ecuador in 2021 on how to implement the Escazú Agreement and to refer to the first forum (see official ECLAC link) that will meet in Quito at the end of November 2022 on human rights defenders in environmental issues.
Costa Rica and Escazú: questions and a more than uncomfortable situation
It is worth reiterating that the following States have signed the Escazú Agreement and to date refuse to approve it in their respective congresses: Brazil, Costa Rica, Guatemala, Haiti, Paraguay, Peru and the Dominican Republic.
Let us note that Costa Rica is on… Such a list of States reluctant to protect the rights of those who defend the environment? As it is read from Costa Rica and also (unfortunately for the Costa Rican State and its international image), outside of it.
The promotion of Costa Rica’s image abroad and the shadow of the Escazú Agreement recently gave rise to an interesting exercise in the United Nations: in the recent contest that took place in October 2022 between Chile, Costa Rica and Venezuela to be elected members of the United Nations Human Rights Council (in the end, Chile and Costa Rica were elected), Costa Rica’s official candidacy letter to the United Nations (see link) omitted any reference to the Escazú Agreement. A more than striking omission if we review the official letter of candidacy submitted by Costa Rica for the same elections in 2019, in which it did refer to the Escazú Agreement (see document, point 16).
One might have thought, in the case of Costa Rica, that the exemplary adhesion of Chile (and the very soon to be materialized in Colombia) would have had an effect on the discussion within its Legislative Power, as suggested at the time on the occasion of the International Environment Day this year 2022.
Unfortunately, its current authorities are leading Costa Rica in the opposite direction: highly worrisome legislative initiatives (promoted by the Costa Rican Executive Branch), which seek to substantially limit citizen participation in environmental matters in Costa Rica, set off alarm bells in the first days of July 2022 (see for example the press release entitled “Environmentalists warn about Chaves’ authoritarian drift in environmental matters” and the article on the uncertainties posed by this “reform” of the highest environmental authority in Costa Rica, as well as this report published in the Semanario Universidad on July 6, 2022).
An article published in Semanario Universidad on July 13 entitled “Business chambers sympathize with Rodrigo Chaves” shows an agenda of the Executive Power very close to the demands of the main business leaders.
Almost at the same time, a notorious case of drinking water contamination in the community of Cipreses (Cartago) has evidenced the total lack of expertise of the current Costa Rican authorities in charge of overseeing the quality of the water supplied (see the letter of the EcoCipreses collective of June 30): this case confirms – once again – the urgent need to guarantee and consolidate an informed citizen participation in environmental matters in Costa Rica. The impact on human health of people belonging to communities affected by the pineapple expansion is another heavy and dramatic debt that the Costa Rican health and environmental authorities have been carrying for many years (see this very complete report of 2019 published in the digital media Delfino.cr, whose reading is recommended, and the documentary always outrageously topical, “Let’s not keep quiet: let’s talk about piñera pollution. Tribute to Mayra Umaña, environmental leader”, from the program Era Verde, Canal 15 UCR, made in 2014). It is worth mentioning the environmental catastrophe caused by a mining company in Abangares on July 15, 2022 (see the article in Semanario Universidad), which once again revealed the lack of oversight capacity of the Costa Rican government and the high risks of chemical mining in tropical countries.
Costa Rica and Escazú: of silences and unanswered questions and of some other oddities
As we recalled during the month of June of this 2022 in an international forum held in San José on Human Rights (Congress on BioLaw and Human Rights and video – our intervention starting at 1:59:00), the axis of informed citizen participation in environmental matters constitutes one of the three pillars of the Escazú Agreement of 2018, as well as of the Aarhus Convention for Europe (1998).
If we are all rights holders, we must be able to exercise our rights. If a Constitution recognizes the right to a healthy environment as a human right, access rights must necessarily be recognized and consolidated to guarantee it. Allowing informed participation makes it possible, to a large extent, to de-judicialize conflicts. Not allowing small communities to participate in environmental issues irremediably leads to a pronounced judicialization, such as that observed in Costa Rica, as well as in many other parts of Latin America.
In this same paper we also reiterated, in relation to Costa Rica, what we had the opportunity to express in last April’s broadcast of the Canal15 UCR Program, “What matters”, directed by journalist Alejandra Fernández Bonilla, and to highlight with two colleagues from Chile (see the video of the broadcast sponsored by Diario Financiero -Live de Chile on July 21, 2022).
Costa Ricans (but also Dominicans, Guatemalans, Hondurans, Paraguayans and Peruvians) have already been able to appreciate on their own that nothing of what is predicted by some few business chambers to happen if the Escazu Agreement is approved happened in the case of the economies of Argentina, Bolivia, Ecuador, Mexico, Panama and Uruguay when it was approved. It is expected that the Chilean economy will not be negatively impacted either and rather that the undisputed environmental and human rights leadership in the region that Chile reaffirms with its adhesion to the Escazú Agreement will bring Chile new investment and cooperation projects. Similarly, as soon as Colombia deposits its instrument of accession at the United Nations, the same effect is likely to be observed. A recent article published in El País (Spain) by the United Nations Special Rapporteur on Toxic Substances and Human Rights, entitled “Escazú Agreement: the unprecedented alliance that will open the doors of international markets to Latin America” suggests that the world market is becoming more and more aware of some things that … some Latin American business leaders, including Costa Rican ones, seem to be completely unaware of (see the article, published in the October 12, 2022 edition).
Regarding the latter, several questions that we launched in the digital media of Delfino.cr, last March, are still waiting for an answer. We reiterate once again what we have already stated in other spaces and articles: the alleged “arguments” against the Escazu Agreement heard in Costa Rica correspond to myths, promoted by several business leaders in Latin America and by their (always helpful) political tokens.
Thus, for example, our colleague Mario Peña Chacón had explained that the reversal of the burden of proof in environmental matters applies since 1998 in the Costa Rican legal system and that it has not driven away anyone in particular, despite the claims made by business chambers to oppose the Escazú Agreement; as well as by a magistrate of the Constitutional Chamber, who wrote a strange and now famous “note” in March 2020 attached to a decision of the Constitutional Chamber, which reads textually that:
It is indisputable that in our constitutional regime, it is the State who has the obligation to prove the existence of the criminal act and the responsibility of the accused; in that sense the norm consulted by allowing the reversal of the burden of proof to be applied against the accused, in these assumptions, is in violation of the right of defense as an integral aspect of due process. It could be argued that the rule can be interpreted to exclude the criminal matter using the phrase “when appropriate” cited in the rule, however, I believe that it cannot be left to the discretion of the legal operator, through interpretation, such a delicate aspect, which -due to its effects-, cannot be left to interpretive arbitration, so I believe that the criminal matter should have been expressly excluded from the possible reversal of the burden of proof (Note 7).
For the peace of mind of many colleagues, and in spite of the criterion expressed in her “note” by the aforementioned magistrate, in none of the States that have already ratified the Escazu Agreement, the inversion of the burden in environmental matters has come to threaten the principle of innocence by invading the field of criminal law; nor has any weakening of the presumption of innocence in criminal matters been observed since 1998 (the year in which the Costa Rican legal system consecrated this principle of environmental law). As a confidence between an author and his readers, the latter must know that it is with a feeling of deep sorrow that his pen wrote these last two sentences (and we thank our faithful readers for their complicit understanding).
Regarding other alleged “arguments” against Escazú, it was very early on that the team of journalists of the University of Costa Rica (UCR) of Doble Check demonstrated it, with a headline that (to this date …) has not given rise to any right of response or rectification by the alluded entity and that we allow ourselves to reproduce: “UCCAEP uses false arguments to oppose the Escazú Agreement”.
The same jurist Mario Peña Chacón had on his side “demystified” in another valuable contribution published in November 2020, the unreasons and true legends that some sectors in Costa Rica have spread against Escazú. These are unreasons and legends that we find disseminated in an almost identical manner in communiqués other than that of the UCCAEP (see for example the letter from chambers linked to the Costa Rican agro-export sector, including those of pineapple and banana exporters) and in other latitudes of the continent: See for example in Peru this document subscribed by its College of Engineers – and this other document subscribed this time by high Peruvian military commanders on the alleged loss of sovereignty in the Peruvian Amazon -, or this announcement by Paraguayan chambers of the agricultural sector (see full text).
Returning to Costa Rica, the National Chamber of Eco Tourism and Sustainable Tourism (CANAECO) had the courage to publicly refute its counterparts in a statement in favor of the Escazú Agreement, but not CANATUR (see statement): the national chamber of the Costa Rican tourism industry, which bases much of its business on the attractions of the prodigious biodiversity of Costa Rica, is arguing against the Escazú Agreement established to protect those who defend the environment? What sadness, what dismay and more generally what deep consternation for many.
Equally disconcerting may be the fact that this official ECLAC press release of March 8, 2022 did not find any echo in the Costa Rican media: the bewilderment and dismay must be greater when observing that this important meeting with all the States that make up ECLAC took place in the Costa Rican capital. The astonishment must reach unimaginable limits when we see that an official press release from the Costa Rican Foreign Ministry about this same meeting … found no echo in any Costa Rican media (Note 8).
The profound loneliness of the Costa Rican Judiciary Power in Latin America
Still in relation to Costa Rica, it is worth mentioning, as we have already done on other occasions, a “discovery”, unique in the entire American continent, at the time of writing (November 12, 2022), made by its Judiciary Power.
In fact, no other Judicial Branch in the 12 States that have already ratified the Escazú Agreement, nor the Peruvian Judicial Power (see this document), and much less the Chilean Judicial Branch (see this document of April 2022), has sustained a criterion similar to that set forth by the Full Court of the Supreme Court of Justice of Costa Rica: according to it (and only it…), clause 5 of article 8 of the Escazú Agreement would entail an additional expense for the operation of the Costa Rican Power. This criterion was reaffirmed in May 2020 by the Full Court (see point 15 at folio 674-675 of this vote of the Constitutional Chamber of August 2020).
Does the Escazu Agreement require an additional economic effort for the justice budget in Costa Rica and only in the case of Costa Rica? What an innovation and what a remarkable effort of creativity. A truly novel but totally erroneous interpretation, and detected by only one constitutional magistrate, out of the seven that make up the Constitutional Chamber (Note 9). This same magistrate in the vote of August 2020 (see his statement attached at the end of the vote) shows how strict and particularly far from the principle of speed and parliamentary agility the Constitutional Chamber shows itself in relation to its decision to backtrack the entire approval process of the Escazú Agreement.
In fact, the aforementioned “discovery” should not be seen as something fortuitous, but rather, confirmed by the Constitutional Chamber, it is part of a regressive jurisprudential line of the same Costa Rican constitutional judge in matters of citizen participation in environmental matters, very little known and disclosed, much less questioned (Note 10).
It is more than likely that, with the passing of time (and of new ratifications of the Escazú Agreement to come), the pettiness – in our opinion quite unusual – of the Costa Rican Judiciary Powerbefore its other peers in Latin America and the Caribbean will be accentuated.
Some contributions from the University of Costa Rica (UCR)
Unlike what has happened in other parts of the continent, there are very few documentaries/videos made in Costa Rica on the Escazú Agreement by specialists in collective communication and audiovisual production.
Of the few existing audiovisual productions, we can refer to two documentaries from the University of Costa Rica (UCR) produced by the Vice Rectory of Social Action (VAS) in August 2021, entitled “UCCAEP and the Escazú Agreement”, which portrays, in a fairly complete way, the position of the Costa Rican business chambers and some of their political cards (see video).
This first video was complemented by another one on the precarious situation in which Costa Rican environmental defenders live, entitled “The Escazú Agreement and the environmental defenders”, which is also recommended (see video). Among others, this documentary includes an interview with the indigenous leader Jerhy Rivera, murdered in 2020 in Costa Rica, and another with a courageous leader who has been denouncing the senseless expansion of pineapple in her canton (Guácimo) for many years.
We reiterate the call to specialists in collective communication and audiovisual production in Costa Rica to be inspired by the productions made in Chile, Colombia or Peru on the importance of the Escazú Agreement in order to make known its true scope to the public opinion: this video made by the team of journalists of LaPulla (Colombia), entitled “The new trap that the congressmen want to make us” gives an idea of what can be produced by a talented team of communicators.
A May 2021 radio broadcast from Radio UCR entitled “Costa Rica without the Escazú Agreement: the double standard in the Human Rights narrative” conducted by jurists Gisele Boza Solano and Rosaura Chinchilla Calderón (see video) also deserves mention, among several valuable broadcasts on the subject sponsored (all) from the UCR press media. Regarding other media, we would like to refer our esteemed readers to the broadcast “Café para Tres” made in April 2021 from the digital media Delfino.cr. (see video): it was a first attempt to publicly debate the “arguments” of the UCCAEP.
The Escazú Agreement undoubtedly advances in Latin America and the Caribbean in the interest of achieving better environmental governance: we are sure that many Escazuceños feel deeply proud of the international projection that their beloved canton has acquired since 2018, as well as many other Costa Ricans.
As an example, this regional treaty was used in Argentina by a judge to force a municipality to provide information on the quality of the water supplied (see this article from ElEco de Tandil ); while the Inter-American Development Bank (IDB) sponsored with the highest authorities of Chile a valuable virtual space explaining the scope of citizen participation planned in Escazú (see this article and video of event held on July 25, 2022).
As new ratifications of the Escazú Agreement are registered, the position exhibited by Costa Rica at the international level will become increasingly untenable. This article from the organization La Ruta del Clima on the “regression” with which Costa Rica presented itself to the world at this COP27 in Egypt details several other regressions on the part of the current Costa Rican authorities in environmental matters.
In addition to the discomfort expressed by the head of the aforementioned environmental portfolio in various international forums on issues of human rights, environment, environmental democracy or environmental governance, the discomfort of many is latent when listening to the Costa Rican delegates, contributing to undermine their credibility as official representatives. In this regard, it is not superfluous to recall the words of an official Costa Rican representative during a meeting held in April 2019 in Santiago, Chile, on the Escazú Agreement (see the full text of his intervention), in which he specified something that, as of November 2022, remains dazzlingly topical:
I want to be clear that, just as our region has set an example to the world, advancing in the construction of environmental democracy, now the world is watching us and attentive to what we can continue to build from now on.
Beyond the deep displeasure that the Escazú Agreement seems to generate in several members of the current cabinet of the Executive Power, we would like to reiterate some questions made previously in publications on this same subject:
- Is Costa Rica still in time, after Chile and Colombia, to rectify the situation?
- Having Chile and Costa Rica co-led the arduous negotiation process of the Escazú Agreement between 2012 and 2018, should not the first COP have been held in Chile and the second in Costa Rica?
- Perhaps we will have to wait for Colombia to approve it (and then possibly Brazil, Honduras, Peru or Paraguay) for the Costa Rican political authorities to feel in one way or another challenged by other States in the region and react?
As citizens, what else can we do in relation to the urgent need to consolidate a much more functional model of environmental governance than the one existing in Costa Rica, and offered to any State that approves it by the Escazú Agreement?
We would not like to conclude these lines without once again expressing, as we have done on other occasions, our deep admiration to the Chilean jurist Constance Nalegach for her tireless work and unwavering commitment in favor of a true environmental democracy in Latin America and the Caribbean: the undeniable progress of the Escazú Agreement in 2022 and all the defenders of the environment in Latin America owe a great deal to this great Chilean figure.
Note 1: See MUÑOZ AVILA L. & LOZANO AMAYA M.A. “La democracia ambiental y el Acuerdo de Escazú en Colombia a partir de la Constitución ecológica de 1991”, Revista Derecho del Estado, Number 50 (Sept.-Dec. 2021), pp. 165-200. The full text of this extensive article is available here.
Note 2: See for example PEÑA CHACÓN M., “Transparencia y rendición de cuentas en el Estado de Derecho ambiental”, Delfino.cr, 17 April 2021 edition, available here. On the Escazú Agreement, we refer to three valuable (and voluminous) collective publications that detail the scope of its content and its importance for the consolidation of a true environmental democracy in Latin America and the Caribbean: ATILIO FRANZA J. & PRIEUR M. (dir.), Acuerdo de Escazú: enfoque internacional, regional y nacional, Editorial Jusbaires, Buenos Aires, 2022, 670 pgs. Work available in full at this link; as well as BARCENA A., MUÑOZ AVILA L., TORRES V. (Editors), El Acuerdo de Escazú sobre democracia ambiental y su relación con la Agenda 2030 para el Desarrollo Sostenible, 2021, CEPAL / Universidad del Rosario (Colombia), 298 pages, available at this link; and PRIEUR M., SOZZO G. and NAPOLI A. (Editors), Acuerdo de Escazú: pacto para la eco-nomía y democracia del siglo XXI, 330 pages, 2020, Universidad del Litoral (Argentina), available at this link. The fact that this is a cutting-edge instrument can be further confirmed by reviewing the developments for the application of Article 7 and Article 9, elaborated by ECLAC itself in the implementation guide of the Escazú Agreement, formally presented in April 2022 (available here, particularly on pp.108-126).
Note 3: With the exception of Liechtenstein and Monaco, all states in the European region have ratified it without major problems, with Ireland being the last to do so in 2012 (see official status of signatures and ratifications). The conventional follow-up mechanism on the implementation of the Aarhus Convention, the so-called “Compliance Committee” (see official website) has become of particular interest in view of the implementation of the Escazu Agreement and has inspired some of the same provisions of the Escazu Agreement. Investment projects in Europe paralyzed as a result of the adoption of the Aarhus Convention, suspension of large infrastructure projects, massive outflow of foreign investment in Europe after the entry into force of the Aarhus Convention? These are other very valid questions to ask some of the detractors of the Escazu Agreement in Latin America and their alleged “arguments” against a regional treaty whose objectives coincide exactly with those of the Aarhus Convention for Europe.
Note 4: See in this regard BOEGLIN N., “Indigenous peoples and their rights: revealing report by UN Special Rapporteur shows serious and persistent gaps in Costa Rica”, September 28, 2022: this article was published in several Costa Rican digital sites, such as Elmundo.cr, Informa-tico as well as Elpais. cr. In July 2022, this note was published in several Costa Rican digital sites, such as Elmundo.cr, Informa-tico as well as Elpais. In July 2022, in the face of rather strange assertions made by the Costa Rican Ombudsman, academics and NGOs had to go out before the public opinion to ask her to rectify them publicly (see article with communiqué published in Delfino.cr, edition of July 22, 2022).
Note 5: Thus, some States Parties chose the second year of life of Escazú (Antigua and Barbuda achieving the deposit on the same date, Nicaragua and Panama a few days later), the first anniversary of the opening of its signature (Bolivia, St. Vincent and the Grenadines, Uruguay with a truly enviable and exemplary schedule that should inspire other foreign ministries). In the case of Argentina and Mexico, both diplomatic apparatuses coordinated the date of January 22, 2021 to allow Escazu to enter into force on Earth Day, April 22. As we can see, each State in its own way has sought to honor Escazú with a symbolic date chosen to formally deposit its instrument of ratification at the United Nations, highlighting the perfect harmony and coordination between the diplomatic apparatuses of Argentina and Mexico to give the greatest possible prominence to the date of entry into force of the Escazú Agreement.
Note 6: The rate of deforestation in the Brazilian Amazon rainforest has increased dramatically since 2018, as detailed in the graph included in this link from Brazil’s Instituto Nacional de Pesquisas Espaciais (INPE). Prior to 2018, Brazilian authorities had managed to significantly decrease this rate.
Note 7: The position of the aforementioned magistrate can be read in the second “note” accompanying the vote of the Constitutional Chamber of March 2020 on the Escazu Agreement: see full text and the two “notes”. Regarding the content of the “note” of the aforementioned magistrate, in an article published in Ojoalclima in April 2021 (see article), the former negotiator of the Escazú Agreement, Patricia Madrigal Cordero, detected a coincidence that, in our modest opinion, would merit an explanation: “Second, Judge Nancy Hernandez, in a note, states her interpretative concerns of the Escazu Agreement that coincidentally are the same ones that the Costa Rican Union of Chambers and Associations of the Private Business Sector (UCCAEP) has found to oppose the project,” Madrigal added.”
Note 8: We reproduced this communiqué in an earlier note (see full text in Note 3) in BOEGLIN N., “La aprobación del Acuerdo de Escazú en Chile. Algunas reflexiones a propósito de la celebración del Día Internacional del Ambiente”, Portal Universidad de Costa Rica (UCR), Voz Experta Section, June 7, 2022 edition, available here.
Note 9: It is worth noting that in his dissenting vote attached to this decision (see full text) of the Constitutional Chamber of March 2020, Judge Paul Rueda was the only one (out of seven members) to point out the totally erroneous reading made by his colleagues of the Chamber: “It is easily noticed that such rule at no time imposes on the Judiciary the obligation to provide free technical assistance, which must be implemented based on the conditions of the legal system of each country. In the case of Costa Rica, such assistance may be provided by any public agencies related to the subject, for example, the Ombudsman’s Office, the Social Defenders of the Bar Association or the legal offices of the UCR (which does not exclude the cooperation of those corresponding to private universities). Erroneously, the majority vote only thought of the Judicial Branch and considered that the text consulted “contains in its articles explicit norms that provide for the creation, substantial variation or suppression of strictly jurisdictional or administrative bodies attached to the Judicial Branch, or creates, ex novo, substantially modifies or eliminates materially jurisdictional or administrative functions”. Based on the foregoing, I hold that from the express text of the numeral in question, at no time is it possible to extract what the Majority assumes”. This dissenting opinion is dated March 2020: as of November 2022, the fact that no other Judicial Branch in Latin America has reached such a “discovery” reinforces the correctness of the criterion expressed in a solitary manner by Justice Paul Rueda.
Note 10: In fact, this is not the first time that in Costa Rica, the majority of the Constitutional Chamber has sought to significantly limit the scope of citizen participation in environmental matters, one of the three foundational pillars of the Escazú Agreement. This is a side of Costa Rican constitutional justice that is little publicized and known, even though, in our modest opinion, it should be, as well as discussed and denounced. In 2017, the Constitutional Chamber of Costa Rica, decided that citizen participation in environmental matters, no longer qualifies (according to it and … only it) as a human right: this is clear from paragraph V of sentence 1163-2017 (see full text). It is appropriate to note that this decision was the subject of only two dissenting votes (subscribed by justices Fernando Cruz and Paul Rueda): the remaining five justices considered that going against the jurisprudence of the Constitutional Chamber itself and of the Inter-American Court of Human Rights did not merit any particular reflection. A year earlier, in 2016, the Costa Rican constitutional judge considered that freedom of enterprise prevails over a municipal agreement establishing a moratorium on new pineapple plantations: it was a municipal agreement taken in the interest of protecting the public health of the communities surrounding this monoculture in the canton of Los Chiles. See full text of judgment 11545-2016 which reads textually that: “Having said the above, municipalities do not have the competence to prohibit a certain licit economic activity in their territories or to declare moratoriums, definite or indefinite. This competence corresponds to the State, since the law of the Constitution (values, principles and norms) is clear and precise, in the sense that the regime of public liberties is reserved to the law. In the case at hand, there is no legal norm with the rank of Law that authorizes the municipality in question to prohibit the cultivation of pineapple in its territory, or to declare an indefinite moratorium on the cultivation of this product, hence its action is arbitrary and, therefore, contrary to the legal order”. Since it is a moratorium for a very precise period of 5 years, it is more than questionable that the Chamber considered that it was an “indefinite moratorium”. Once again, the reading of the dissenting opinion of Judge Fernando Cruz shows how erratic, whimsical and questionable is the decision taken by the majority of his colleagues: Judge Cruz concludes by explaining that “given the threats and harmful effects to health and the environment caused by pineapple cultivation, the communities have full legal and political legitimacy to take temporary preventive measures to ensure that their citizens will not be harmed by an agro-export activity that causes damage and threats to biodiversity”.
Author: Nicolas Boeglin, Professor of Public International Law, School of Law, University of Costa Rica (UCR)