It has been over a decade since talks began over the Escazú Agreement, Latin America and the Caribbean’s landmark environmental treaty that seeks to improve access to information, address widespread impunity for crimes against environmental defenders, and give communities stronger rights to consultation on the impacts of large development projects.
The agreement finally entered into force in 2021, and to date has been ratified by 16 countries in the region. Dominica was the latest to do so, in April 2024.
Although the agreement is only in its fourth year, and its implementation is a work in progress, it is already being used in litigation to bolster arguments and, at times successfully, to uphold citizens’ rights.
Last year, for example, Panama’s supreme court declared that legislation granting a Canadian company a 20-year copper mining concession was unconstitutional. The court said the concession’s approval had been based on an environmental impact assessment which was out of date, and thus breached the Escazú Agreement’s aim of providing access to environmental information.
In some countries, international treaties automatically become part of national law, so are immediately open to lawsuits. One such country is Mexico, where the highest court referenced Escazú in a 2022 decision that halted a major port expansion project on the Gulf coast in Veracruz, ruling in favour of community and environmental defenders seeking to protect reefs.
In Argentina, the federal court of the city of Mar del Plata ordered a halt to fossil fuel exploration activities in 2022, in a case brought by Greenpeace. It did this based explicitly on the lack of public participation and information required by the Escazú Agreement. However, subsequent appeals overturned this ruling. Argentine judges also rejected a request by Greenpeace for a precautionary injunction over exploration, despite a supportive statement from the public prosecutor, which stressed that processes around the activities had not been properly compliant with Escazú.
Key cases in the Caribbean
In the Caribbean, the Escazú Agreement is being used to challenge government attempts to shield themselves from legal scrutiny.
A key judgment in this endeavour is part of an ongoing battle in Antigua and Barbuda launched by two Barbudans to block the construction of a private airport serving luxury resorts on the island. Jacklyn Frank and John Mussington say the development, which has been implicated in claims of land grabbing, is destroying forest on their island as well as wetland ecosystems vital for preventing erosion.
The pair’s initial legal challenge that ordinary Barbudans have not been consulted on the project was dismissed. However, the Privy Council in London – the supreme court of appeal for members of the Commonwealth – disagreed, issuing a ruling in February that Frank and Mussington had the right to bring such a case, known in legal terms as “standing” – standing in line with Antigua and Barbuda’s international obligations under the Escazú Agreement.
Their legal battle will now return to the local courts, where they recently filed a fresh claim.
Mussington says the Privy Council’s decision exposed Antigua and Barbuda, one of the first countries to sign the Escazú agreement on 27 September 2018, for not following its own rules. “While we were bringing that challenge to the government [in 2020], they were ratifying Escazú,” he notes. “I think in future events, they will not be likely to make that mistake again.”
The judgement also opens the door for others in the region to challenge government decisions that affect the environment. Many of these lawsuits, like Mussington’s, are supported by Global Legal Action Network (GLAN), an NGO.
Alongside Barbudan fisher and bird sanctuary guide George Jeffery, GLAN recently filed a case against the Antigua-based Development and Control Authority for approving a private luxury residence for an English millionaire with now debunked “royal connections” at Cedar Tree Point, a development on Barbuda within a protected area. They say the project threatens the nesting site of rare sea turtles and the breeding ground of the frigatebird, the national bird.
Meanwhile, Grenada Land Actors (GLA), a network of NGOs, community organisations and individuals seeking sustainable land management, is suing Grenada’s planning department over its process of approving three “mega-tourism” developments. The organisation says work at these sites has cleared wetlands and mangroves, harmed protected species, and restricted or denied traditional community access. A hearing is scheduled for October.
Sarah O’Malley, a lawyer at GLAN, says that the Grenadian government had previously relied on court rulings dismissing the Barbudan case: “John’s case means that all of those standing arguments that GLA were going to have to fight really hard against fall away completely, and they can focus more on the merits.”
A similar lawsuit is planned in Dominica, where an international airport is being built in an ecologically sensitive area.
Compliance and international influence
There is also a growing international dimension to Escazú.
Having initially refused to even sign the agreement, Chile finally became a full party in June 2022. Just five months later, the country was chastised by the Inter-American Court of Human Rights for violating the right to freedom of expression of Carlos Baraona Bray, a lawyer who received a criminal conviction for defamation after accusing a Chilean senator of putting political pressure on public authorities to allow the illegal logging of Patagonian cypress trees.
In its decision, the court highlighted the Escazú Agreement’s guarantee of “a safe and enabling environment” for environmental defenders and state requirements to protect them.
The agreement was also briefly mentioned in two Inter-American Court rulings against governments: Peru, for violating the right to a healthy environment of people living in the Andean mining town of La Oroya; and another recognising the rights of Indigenous people in Guatemala. This happened even though neither country has ratified the agreement.
Viviana Krsticevic, executive director of the Center for Justice and International Law (Cejil), tells Dialogue Earth that the Escazú Agreement has power on its own, but efforts are being made to strengthen it by using it alongside other international legal instruments.
The agreement is likely to be referenced in the Inter-American Court’s upcoming advisory opinion on climate change and human rights, in which Cejil has played a key role. Although the court is mainly tasked with upholding the American Convention – the human rights pact ratified by 24 western hemisphere states – the Escazú Agreement has been mentioned many times in written and oral submissions on this opinion. “We hope this will give states in the Americas a set of clear obligations based on an integrated interpretation of the American Convention plus Escazú,” says Krsticevic.
The Environment and Natural Resources Foundation (Farn), an Argentina-based NGO, also has a case pending at the country’s supreme court, which seeks to bring together Escazú and the Paris Agreement on climate change. Farn wants a precautionary order that would prevent national authorities from consenting to offshore seismic exploration and offshore fossil fuel exploitation until the environmental impacts are properly assessed.
Cristian Fernández, legal coordinator for Farn, suggests that lawsuits based on access to information are relatively straightforward. But he adds that enforcing other parts of Escazú could be more difficult, including the principle of non-regression – that states commit to maintaining, at a minimum, current levels of relevant regulatory standards – which Farn is trying to uphold in its ongoing lawsuit.
A key limitation of the Escazú Agreement is that it does not have its own court to adjudicate cases, says Krsticevic. A committee to support compliance has been set up, with basic rules on how it will receive queries and issue recommendations agreed at the treaty’s most recent conference of the parties.
For direct enforceability and for courts to actually use the agreement, there is still a huge gapNatalia Gomez, climate change policy advisor for EarthRights International
Natalia Gomez, climate change policy advisor for EarthRights International and a former official public representative for the Escazú Agreement, says the compliance committee becomes active in a country two years after they ratify. And although no claims appear to have been filed with the committee yet, sources told Dialogue Earth that civil society groups are poised to do so.
Gomez says some states had resisted the creation of a compliance committee for Escazú, wary of new mechanisms that could declare state responsibilities. But although the committee will not be able to sanction governments for non-compliance, she believes it will have some political and legal weight, pointing to experiences under similar international agreements such as Europe’s Aarhus Convention on access to environmental information: “My understanding of what has happened in Aarhus and compliance committees of other treaties is that many times, those decisions are followed by courts in their interpretation.”
Gomez adds that there is still work to do to educate judges on the Escazú Agreement, an issue that civil society groups in some countries are reportedly working on. Furthermore, despite the agreement encouraging parties to set up specialised environmental courts, few nations in Latin America and the Caribbean actually have them. “For direct enforceability and for courts to actually use the agreement, there is still a huge gap,” Gomez says.
