With Argentina on board, the Escazú Agreement inches closer to reality

With Argentina's ‘yes’, the Escazú Agreement is one step away from coming into force. What’s its status in each country?
<p>The Escazú Agreement was opened for signature in September 2018 and could enter into force in the coming months. Photo: <a href="https://www.flickr.com/photos/cepal/albums/72157701560214674">ECLAC</a>.</p>

The Escazú Agreement was opened for signature in September 2018 and could enter into force in the coming months. Photo: ECLAC.

With the approval in Argentina last Thursday, the Escazú Agreement is one step away from becoming a reality.

As soon as Argentina submits its ratification to the United Nations, this regional and globally unprecedented treaty that seeks to improve access to public information, citizen participation and justice in environmental issues in Latin America and the Caribbean will be just one more away from coming into force.

This could happen very soon, since in the last month the ratification process also started moving in Mexico and Colombia, two of the region’s main economies. Belize and Dominica also signed last week. All this has given new impetus following almost six months of paralysis due to the Covid-19 pandemic and the accompanying social and economic crises.

As we did in April, we look at how Escazú is progressing in signatory countries.

graphic showing the progress of the Escazu Agreement ratification

Brazil: Escazú stuck between government and congress

Brazil, which signed the Escazú Agreement under the previous government of Michel Temer, remains at the same point as it was six months ago. The government of Jair Bolsonaro continues to analyse it and has not sent it to congress for ratification, according to social and environmental organizations that followed the negotiations.

After it was first signed, the text was sent for analysis to three ministries: the Ministry of the Environment, the Ministry of Agriculture, Livestock and Supply, and the Ministry of Transparency and the Comptroller General of the Union. It is not known whether these entities approved it or what comments they sent to the cabinet, which is responsible for presenting it to congress.

“There is no progress in Brazil on the Escazú issue – nor on any other environmental issue,” says Rubens Born, a researcher at the Fundação Grupo Esquel Brasil.

Colombia: In congress as opposition emerges

Colombia, which was the last country to join, filed the Escazú Agreement to congress last July. The government printed a message of urgency, which should shorten the legislative time (by reducing it from four to three debates, since the debate within parliamentary commissions is combined). It will then be reviewed by the Constitutional Court, which could take a few months.

However, in public congressional hearings, critical voices have emerged against. The Council of Trade Unions, which brings together the main business associations, has opposed it, arguing that its norms were redundant and that it could bring legal uncertainty to investors.

“The spirit of the agreement is laudable, but Colombia must apply the laws that already exist, and for the private sector and farmers this agreement generates many doubts,” said Jorge Enrique Bedoya, president of the Colombian Farmers’ Society (SAC).

The government of Iván Duque – who initially opposed it on the grounds that it did not contain novel measures but exposed the country to international accountability – supports it, although a faction of his party is against it. In any case, these advances mark a strong turn in Colombia’s position towards Escazú. Duque reversed his initial reluctance to sign after the massive protests at the end of 2019 against the government. This was one demand civil society insisted on in the spaces for dialogue created in response to the protests.

“The President’s main environmental commitment was to ratify the Escazú Agreement. So far, all public entities, academia and civil society have strongly supported the Agreement. But it is also very important that the President shows his political leadership so that, together with the legislative branch and the support of all the governing parties, the message of urgency materialises and Escazú is approved before the end of the legislative period on December 16,” says Lina Muñoz Ávila, professor of law and environmental management at the Universidad del Rosario.

Costa Rica: Stumbling in the judicial branch

In the country home to the city that hosted the negotiations and lent its name to the agreement, ratification suffered a sudden setback.

A week ago, the Constitutional Chamber of the Supreme Court of Justice dealt it a hard blow, deciding 6 to 1 against the agreement on the grounds it could affect the functioning of the judicial branch and generate additional expense. The ruling means that the agreement did not pass a constitutionality review and that, instead of going to the second and final debate in the Legislative Assembly, it will have to return to the first debate it already passed in February, and will also have to clarify the budget.

“With Chile’s back turned and Costa Rica’s ratification significantly delayed, the absence of both promoting States is causing immeasurable damage to the Escazú Agreement, [which is] the object of a disinformation campaign in Latin America aimed at misleading political sectors into believing that it will affect foreign investment,” says Nicolas Boeglin, professor of public international law at the University of Costa Rica.

“There will be no Escazú Agreement for a while longer in Costa Rica,” he adds.

Guatemala: Government slows down

Although the Guatemalan government gave visibility to the agreement from the moment it was signed, calling for socialisation workshops with the Minister of the Environment and high-level officials of the Ministry of Foreign Affairs in August 2018, the process has since stagnated.

Two years later, the government has still not taken it to congress. When Jimmy Morales left the presidency at the end of 2019, the agreement theoretically continued in consultations in the Ministry of Environment and other public entities. The new president, Alejandro Giammattei, took office in January and has not referred to the issue.

“There are deep interests in the dispute between the environment, indigenous peoples and the private sector,” an official from international community who asked to remain anonymous told Diálogo Chino.

Mexico: In the senate for debate

After a long process within government, President Andrés Manuel López Obrador finally sent the agreement to the Senate in mid-August. As the legislative period only began on September 1, until last week the house was winding up up the presidencies of three commissions due to discuss it.

Unfortunately, it is not understood that foreign direct investment, so necessary for the country to grow, will not come if we do not have solid legal standards in environmental matters

“We know that there is a very good perception about the eventual approval of the Accord in several factions and in the three commissions that will work on Escazú. As soon as they have the schedules of topics, we will have more elements to estimate times about when it could come out, but the messages from inside are very positive about the support that the Agreement has. Executives from the Ministry of Foreign Affairs and the Ministry of Environment are also promoting it,” says Tomás Severino, director of Cultura Ecológica, a civil society organisation.

Paraguay: Government’s absolute silence continues

In Paraguay, the controversy that led President Mario Abdo Benitez to withdraw the bill from Congress last December continues to affect the agreement. Nine months later, the government has not presented it again, although in February national newspaper ABC Color reported that the Foreign Ministry was ready to take the text back to Congress in March.

The more visible face of that opposition, however, has changed somewhat. If the crisis began when Archbishop Edmundo Valenzuela said that the environmental agreement would legalise so-called “gender ideology” – a vague concept coined by conservative sectors to encompass progressive gender policies – opposition is now the preserve of rural businessmen and libertarian politicians who fear it will affect production.

In the midst of this state silence, its promoters have been explaining the value it could have for businesspeople.

“Unfortunately, it is not understood that foreign direct investment, so necessary for the country to grow, will not come if we do not have solid legal standards in environmental matters such as those proposed by Escazú,” says Ezequiel Santagada, director of the Institute of Environmental Law and Economics (Idea).

“Escazú is no longer only necessary to guarantee the right to a healthy environment, but also to open markets. In the long term, those who oppose it will end up accepting it because of the global economic dynamic itself. In the meantime, we will lose time and the environment will be depredated more than it would be if Escazú were ratified and soon to come into effect in Paraguay,” he adds.

Peru: Debate started, but faces disinformation campaign

In Peru, another of the countries that led the negotiations, the agreement has been put back on track after being sidelined by last year’s political crisis, which led to the dissolution of congress and the election of a new one.

That discussion, however, has been hampered in public hearings by the opposition from some sectors who claim it would affect national sovereignty. “It means in practice that 53% of Peruvian territory, which is the Amazon, would be subject to radical legislation that is different from the rest of Peru,” said former foreign minister Francisco Tudela, arguing that many socio-environmental conflicts around legal exploitation of oil and gas could end up in international tribunals.

The government of Martin Vizcarra has been largely invisible during the debate. This is despite the fact it sent filed the agreement with Congress a year ago recommending its approval, accompanied by favorable reports from the Ombudsman’s Office, the Minister of Environment and Natural Resources, and the Minister of Agriculture.

That is why the foreign ministry’s current position, having previously approved it and called meetings to promote it, has caused surprise. The new minister Mario López publicly asked “not to ratify it yet [because] there is no consensus”. His predecessor, Gustavo Meza-Cuadra, sent a letter to Congress warning that the agreement could generate new international obligations for the country.

In the absence of solid support from Vizcarra, civil society has moved to respond to concerns of critical sectors and to combat disinformation on the agreement with educational primers.

“The virtual spaces dedicated to talking about Escazú have increased a lot, from academic to regional, and are organised by civil society,” says Fátima Contreras, a lawyer with the Peruvian Society for Environmental Law (SPDA).

Dominican Republic: Awaiting the new president

In the Dominican Republic, where discussions slowed down due to the pandemic and presidential elections, ratification depends on the new government that took office in mid-August.

Several environmental organizations wrote to new President Luis Abinader last week, complaining about his predecessor’s delay in the ratification process and asking him to activate it. As far as they know, the next step is for the foreign ministry to send it to the Executive’s legal team, which must then send it to the constitutional tribunal. There, its constitutionality will be reviewed before it heads to congress.

“The organizations are requesting permission from the authorities because this Thursday we are going to the Count’s Gate, the emblematic place where the cry of independence was given, calling on the Senate of the Republic and the Constitutional Court to ratify it,” says Euren Cuevas, executive director of the Institute of Lawyers for the Protection of the Environment (Insaproma).

“We have met with senators and deputies and they have said that they are in a position to approve it”.

The reluctant won’t change their minds

Last Saturday, just two days after Belize joined, the window for countries that have not yet signed closed. That means that new countries that have not signed it – such as Chile, El Salvador, Venezuela or Honduras – could do so, but through a different mechanism of accession directly at the UN in New York.

Chile confirms it won’t join the agreement it led

In Chile, the government of Sebastián Piñera continues to oppose an agreement whose negotiation he ironically led (along with Costa Rica) in his first term (2010-2014). Despite this opposition, Piñera had avoided giving clear public explanations of his refusal to sign until last week, when, three hours after defending his environmental commitment at the UN, his government said in a public document that Escazú is “inconvenient”. Among his arguments are that socio-environmental conflicts could end up in the courts and that it exposes the country to international lawsuits.

El Salvador: President Confirms his opposition

President Nayib Bukele referred last week to his refusal to sign the agreement, arguing that he agrees philosophically with its contents but not with “some clauses”. “I very much like the spirit of the agreement (…) but, as El Salvador, we would like to make modifications to two specific articles,” he said, without specifying which ones and stressing the importance of productive sectors such as housing construction.

Honduras: Total silence from the government

The government of Juan Orlando Hernández has not wanted to sign the agreement, despite maintaining that consultations with various sectors continue. In the midst of this lack of clarity about the process, many social and environmental organisations have insisted on the importance of the agreement for communities, which today have no voice in decisions that affect their territories. “Only when they see the company’s machinery and personnel arrive, do they realise that there is a concession. Escazú allows communities to have information about the project before that happens,” argued Clarissa Vega, director of the Environmental Law Institute of Honduras (Idamho), on Radio Progreso.