Question looms over green-rights negotiation


Latin American and Caribbean nations are on the verge of signing the region’s first-ever multilateral agreement on environmental rights, following several years of talks. There’s one catch, though: arguably the most important question—whether the accord will be binding—remains at least somewhat in doubt.

The fact that negotiators thus far have yet to commit to making compliance mandatory deeply frustrates participants such as Andrea Sanhueza, a Chilean social worker who is one of six public representatives taking formal part in the talks.

“We are not putting in all this effort to end up drafting rights whose recognition is left to the discretion of the governments,” Sanhueza says. “If the treaty is binding, inhabitants of the region will be able to access information on environmental matters more easily, and the opportunities for participation will be available earlier, given that today they come late [in the decision-making process] and don’t have any effect on the decisions that governments make.”

The multilateral talks, now involving 24 governments in the region, could culminate as soon as March with the adoption of final language aimed at ensuring citizens can obtain information, participate in decision-making and gain access to the courts in environmental matters. If then signed and ratified, the text would stand as the world’s second such regional agreement, the first being the Aarhus Convention, a binding European treaty named for the Danish city in which it was signed in 1998.

Work on the Latin American and Caribbean accord got underway in earnest in May of 2015 with the formation of a negotiating committee following three years of preliminary analysis. The committee, involving extensive participation by civil-society groups, held periodic meetings in cities throughout the region. Its ninth such session, the one in which adoption of the final text is expected, is scheduled for Feb. 28 to March 4 in San José, Costa Rica.

With that session fast approaching, some countries—among them Chile and Costa Rica, the co-presidents of the initiative’s negotiating committee—are pushing hard to ensure the accord will be binding, a position supported by numerous international organizations and civil society groups. They say a voluntary agreement would amount to little more than a toothless expression of good intentions in a region in which environmental conflicts have become increasingly prominent in recent years.

But at least one influential country, Mexico, has argued against the idea of a binding treaty, while the positions of two others—Brazil and Colombia—have remained ambiguous. According to a member of Mexico’s negotiating team, his government would prefer to see voluntary means such as model legislation and a regional action plan that provides for country-to-country support in developing environmental-rights policies.

Weighing in on the question, ten independent experts appointed by the United Nations Human Rights Council to monitor specific rights issues called on participants “to accept legally binding rules to protect both human rights and the environment.” In a joint statement released in Geneva on Nov. 27, they described the agreement as “particularly important because the region is one of the most dangerous in the world for environmental human rights defenders,” adding: “In 2016 alone, more than 100 environmental defenders were killed in the region.”

One of the experts, attorney John Knox of the United States, underscored the point in an interview with EcoAméricas. “The negotiation of a new regional agreement on environmental access rights can be a crucial step towards providing stronger protections for environmental defenders in Latin America, but only if it results in a binding treaty,” said Knox, the UN’s special rapporteur on human rights and the environment.

Delegations meeting in the eighth round of talks last month in Santiago, Chile, heard a similar message from host country President Michelle Bachelet.

“You have the responsibility to improve the welfare of 500 million people,” Bachelet said in a videotaped welcome to attendees. “This negotiation only will be successful if we agree on an instrument that doesn’t replicate the common minimums that we already have. Reality requires that we go further and make profound changes in the way we relate with our citizenry.”

In another videotaped welcome speech to delegates, Mexican biologist Alicia Bárcena, executive secretary of the UN’s Economic Commission for Latin America and the Caribbean (Eclac) said: “We are close to reaching an agreement that truly would be unprecedented in the region’s history.” Added Bárcena, whose commission has served as the initiative’s organizing entity: “[Y]et we have to ensure it is not merely declarative, but instead establishes clear obligations for [nations] to improve laws, policies [and] institutions, and that civil society also can have greater participation.”

The central aim of the environmental-rights agreement—that in environmental matters, the public have timely access to information, participation in decision-making and access to the courts—reflects goals set forth in the Rio Declaration on Environment and Development, issued at the 1992 Earth Summit in Rio de Janeiro. The Rio declaration states that “the best way to address environmental questions is through the participation of all interested citizens,” and identifies access to information and the courts as key means of achieving this end. Two decades on, the promise of Rio has been slow to become reality. Ten of the region’s countries called attention to that fact during the 2012 UN Conference on Sustainable Development, known as Rio +20. In a joint statement, Chile, Costa Rica, the Dominican Republic, Ecuador, Jamaica, Mexico, Panama, Paraguay, Peru and Uruguay said the environmental challenges faced by their nations, the region and the world require “action that is much more concerted, proactive and efficient.”

Against that backdrop, the same 10 nations held an initial meeting in Santiago in 2012 on the possibility of a regional environmental-rights agreement. Among the invitees was Jeremy Wates, first secretary of the European Environmental Bureau, a network of green groups in European Union nations. Wates described the negotiation of the Aarhus Convention, for which he previously served as secretary for over a decade.

Since 2010, 14 more nations have joined the negotiations of a Latin American and Caribbean accord: Antigua and Barbuda, Argentina, Bolivia, Brazil, Colombia, Dominica, El Salvador, Grenada, Guatemala, Honduras, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, and Trinidad and Tobago.

Formal talks were convened in November of 2014 and began in earnest in May of 2015. Participants included environmental and foreign-relations officials as well as six “public representatives” from nongovernmental groups in Argentina, Chile, Colombia, Jamaica, Mexico and Saint Lucia who were elected in a public Internet vote and received sponsorship funding from Eclac. In addition, an estimated 60 nongovernmental groups have joined the meetings informally in person or remotely, at their own expense or by way of alternative sponsorships. Unusually, all are allowed to take part freely in the discussions.

“Typically in this type of international meeting, civil society doesn’t speak; but in this process any [of the civil society representatives] can speak,” says Sanhueza, the Chilean social worker, who is one of the six public representatives. “The style of participation has been very innovative and progressive. Dozens of organizations from the region have organized ourselves and learned to lobby.” Carlos de Miguel, head of Eclac’s Policies for Sustainable Development Unit and leader of the technical secretariat for the negotiations, says that apart from the question of whether the agreement will be binding, virtually all key issues have been worked out. (See Q&A with Carlos de Miguel—this issue.)

The text in its current form describes the agreement’s goal this way: “to guarantee the full and effective implementation in Latin America and the Caribbean of the rights of access to environmental information, public participation in decision-making and access to justice in environmental matters, as well as the creation and strengthening of capacities and cooperation, contributing to the protection of the right of each person and of present and future generations to live in a healthy environment and to sustainable development.”

The ninth article, whose adoption by negotiators last month in Santiago was applauded by civil society groups, calls on signatory governments to protect “human rights defenders in environmental matters … so they are able to act free from threat, restriction and insecurity,” and to “prevent, investigate and punish attacks, threats or intimidation” of activists.

Regarding environmental information, the agreement calls on governments to ensure that the public be given access to such information “in accordance with the principle of maximum disclosure” and “without mentioning any special interest or explaining the reason for the request.” It also says governments should ensure that people “in vulnerable situations, including members of indigenous peoples and ethnic groups,” receive “assistance in preparing their requests and obtain a response.”

Citizen participation in environmental deliberations, the agreement states, should occur “from the early stages, so that due consideration can be given to the observations of the public.”

The agreement’s Article 8 underscores the need for the public to have access to justice on environmental matters and says that the courts must be able to draw on environmental expertise. It also says court proceedings cannot be “prohibitively expensive” and must be facilitated with “the use of interpretation or translation of languages other than the official languages when necessary.”

Article 11 recognizes the heterogeneity of the region’s countries, calling on governments to collaborate with “particular consideration to least developed countries, landlocked developing countries and small island developing states from Latin America and the Caribbean.”

The current wording of Article 14, meanwhile, states that there will be a periodic Conference of the Parties to maintain the “implementation and effectiveness of the Agreement under permanent review and evaluation.” And Article 19 creates a Facilitation Committee “to promote application and support the Parties with implementation of the present Agreement based on capacity-building and cooperation.”

Articles in doubt

Articles 14 and 19 are in a more preliminary state than other provisions, and delegates acknowledge they are not certain the Conference of the Parties and Facilitation Committee components will make the final draft. Andrés Nápoli, a public representative in the negotiations who heads the Argentine nonprofit Environment and Natural Resources Foundation (FARN), argues the wording of both articles must be preserved. Says Nápoli: “It is absolutely indispensable not only that the treaty be binding, but that it have a conference of the parties [an ongoing governing body] so its provisions really are carried out. Regrettably, we see the bigger countries, Brazil, Argentina, Mexico and Colombia, don’t favor a conference of the parties.”

Nápoli notes the Conference of the Parties would be an implementation tool for a treaty, which, “if binding, will be the first in the region to establish a relation between human rights and the environmental question.” He adds: “Though in recent years many constitutions [in the region] have included environmental rights, these are excluded from the current Inter-American system of human rights. Effectively, environmental conflicts that have gotten to the Inter-American Commission on Human Rights have done so based on questions linked to the rights of indigenous peoples.”

If the definitive text is agreed on in Costa Rica in March, the accord will be submitted for signing and approval to all Latin American and Caribbean nations. As currently worded it would, once signed, take effect 90 days after it has been ratified by five countries.

Whether the agreement will be binding or voluntary remains unclear. Responding by e-mail Jan. 26 to a question from EcoAméricas, a member of Mexico’s delegation questioned the feasibility of a binding accord. The official, Diego Simancas, deputy director for social and economic affairs in Mexico’s Foreign Affairs Secretariat, argued for a model law to guide national efforts, possibly paired with an action plan designed to encourage nation-to-nation information sharing and support.

Disparities cited

Said Simancas: “Considering the existing disparities in the region, an instrument of a binding character would difficultly serve such dissimilar ends, ranging from the creation of national capacity in countries where [this capacity] doesn’t exist to the improvement of systems such as ours, one of the most advanced in the region.” He added that a conference of the parties is one of many options, adding that the means of monitoring must not “divert the scarce human and financial resources” that nations have available to ensure access to environmental information, public participation and access to environmental justice.

Argentina—at least publicly—appears open to a binding treaty. “Argentina’s wish is that the agreement be binding, although we have to see how the final text looks,” Dolores Duvergés, head of the Argentine Environment Ministry’s Planning and Environmental Land Management Undersecretariat, said in an interview with EcoAméricas. Regarding a conference of the parties, Duvergés added: “We still haven’t taken a definitive position, although monitoring mechanisms are always good.”

Daniel Sabsay, an Argentine environmental lawyer who addressed the August session in Buenos Aires, insists the accord will accomplish little unless it is binding and includes effective means of implementation and compliance. Says Sabsay: “If compliance with the agreement is voluntary, its importance disappears. It will be no use if no mechanisms exist for the population to demand compliance by the authorities in each country. It can’t be that [government] authorities are the ones who will decide how they will be monitored.”

- Daniel Gutman

Carlos de Miguel
Director, Public Policy Unit for Sustainable Development
Division of Sustainable Development and Human Settlements
Eclac-United Nations
Santiago, Chile
Tel: +(562) 2210-2310
Aída Gamboa Balbín
Political Scientist and member of the environmental management team
Law, Environment and Natural Resources Organization (DAR)
Lima, Peru
Tel: +(511) 340-3780
John Knox
United Nations Special Rapporteur on Human Rights and the Environment
Wake Forest University
Winston-Salem, NC, United States
Tel: (336) 758-7439
Patricia Madrigal Cordero
Environment Vice Minister of Costa Rica
San José, Costa Rica
Tel: +(506) 2257-5544
Andrés Nápoli
Executive Director
Environment and Natural Resources Foundation (FARN)
Buenos Aires, Argentina
Tel: +(54 11) 4312-0788
Andrea Sanhueza
Public Representative
Negotiating Committee of the Regional Agreement on Principle 10
Santiago, Chile