On 22 April 2021, the Escazu Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean entered into force. This long-awaited regional instrument includes many different elements that directly or indirectly contribute to the discussion on business and human rights, and may be particularly important for different efforts being undertaken in the region. This piece addresses three of the main contributions made by the Escazu Agreement: how it strengthens the definition and content of the right to a healthy environment at the regional and international levels; how it addresses several important and urgent points within the business and human rights field; and how it indirectly gives a hand to the ongoing efforts to develop a business and human rights treaty.

Consolidation of the human right to a healthy environment

The Escazu Agreement seeks to contribute to the protection of the intergenerational right to a healthy environment and to sustainable development through ensuring access to environmental information, public participation in environmental decisions, and access to justice in environmental matters. As the Latin American counterpart to the 1998 Aarhus Convention, it serves to expand the San Salvador Protocol’s reference to the right to a healthy environment, by developing the procedural obligations of States in this regard. This treaty also crystallizes previous references to the topic in different fora, especially by the first UN Independent Expert (turned Special Rapporteur) on human rights and the environment in his 2013 preliminary report, and by the Inter-American Court of Human Rights in its Advisory Opinion 23/17. In both cases, the right to a healthy environment had been understood through a dual lens: as the impact on human rights caused by environmental degradation; and as the procedural rights necessary for the realisation of the right to a healthy environment. In addition, the adoption of this regional agreement contributes to the ongoing intergovernmental efforts at the UN to formally recognise the right to a healthy environment, by adding another normative basis for the global recognition of this right.

Relevant elements for the business and human rights discussion

Is the Escazu Agreement a game changer for business and human rights in the Americas? It would certainly appear so. Considering the vast natural resources across the region (with the infamous ‘resource curse’ that that entails), and the reliance of most Latin American economies on their exploitation, this treaty provides an interesting case study on some of the most important challenges in the business and human rights arena. For example, the agreement stipulates that exercising the right of access to environmental information doesn’t require any special interest or justification; that the public should be ensured the right to participate in decision-making processes whenever any project or activity may cause a significant impact on the environment or health; and that access to justice in environmental matters, including in relation to the failure to uphold the rights to information and participation, should be guaranteed.

However, at the end of the day, in a resource-rich region, many human rights violations begin with environmental degradation. So, beyond the obvious implications that the abovementioned elements have, the agreement highlights at least three main aspects that may mark a regional shift: first, it expressly extends its scope to those private organizations that receive public funding or benefits or that provide public services (art. 2.c), and requires transparency in public procurement (art. 6.9). This links clearly with the logic of the UN Guiding Principles on Business and Human Rights (UNGPs) and the role of the State as an economic actor, therefore contributing to the ‘hardening’ of this international standard, and to the elucidation of State obligations on the matter. Second, it promotes transparency (art. 6.1) and reporting (art. 6.12-13), in an effort to ensure that businesses become accountable to society on their environmental and health impacts. This effort joins a larger global trend requiring that businesses act diligently with respect to human rights and the environment, a focus that also highlights the close relationship between health, the environment and sustainability.

Further, the Escazu Agreement introduces a clause that may not be so expressive by itself, but that upon close inspection reveals an important contribution to corporate human rights due diligence in the Americas. Article 8.3.e requires States to adopt measures to facilitate the production of evidence of environmental damage, including the reversal of the burden of proof and the dynamic burden of proof when applicable. A dynamic burden of proof, or its reversal, is often necessary in civil litigation whenever a party is in a better position to provide evidence that it took adequate steps to prevent harm from happening. Thus, it shifts the burden of proof to a party that would not traditionally be obliged to discharge it, in order to allow the judge to have a better perspective on the case; it is also a tool to promote equality of arms. In that regard, this provision – as well as the aforementioned article 6.12 on reporting, including on the potential risks and effects of business activities – promotes (if not implicitly demands) the adoption of preventive measures to ensure respect of human health and the environment. While not expressly requiring corporate human rights due diligence as foreseen in the UNGPs, these two provisions provide a solid normative foundation that de facto introduces the legal dimension of human rights due diligence into the mix.

Finally, these elements are adequately completed by a provision (art. 9) that – at least on paper – addresses one of the most complex crises in the region: the persecution of environmental and human rights defenders. The inclusion of such a provision is not just a clear political recognition of the magnitude of the problem, but also a legal tool that may become useful at the domestic and regional levels for their protection, and for the development of related laws and policies.

Helping out the business and human rights treaty negotiations?

Despite the more direct business and human rights elements included in the agreement, this regional treaty makes an indirect contribution to the global agenda, especially in relation to the intergovernmental negotiations on a business and human rights treaty taking place at the Human Rights Council. This is so because the Escazu Agreement expressly addresses several of the thorny issues being debated in Geneva. For example, its entry into force solidifies the notion that a right to a healthy environment already exists, not just at the national level – where 155 States have already recognized some form of this right in their constitutions – but also in regional human rights instruments in Europe, Africa and the Americas. In addition, by providing that some companies may be considered ‘competent authorities’ under the Agreement, it highlights that in some limited circumstances, private entities may be subjected to certain obligations that are internationally defined. In addition, access to information and access to justice are two of the central pillars of the obligation to prevent foreseen in the different negotiating drafts, which are completed by the aforementioned provision on reversal of the burden of proof, another important provision that is already present in several jurisdictions in Latin America.

While every treaty negotiation has its own particularities, the fact remains that by enshrining several of these elements in an international instrument, the Escazu Agreement provides yet another basis to argue that the business and human rights treaty consolidates legal principles and obligations that already have some precedent in international law. It also reinforces the fact that State parties are bound to respect and enforce such obligations, a duty that may – and should – facilitate their proactive engagement in the treaty negotiations.

Conclusion

The entry into force of the Escazu Agreement in 2021, a decade after the adoption of the UNGPs, is a singular coincidence that underscores that, in fact, some level of normative progress has already been achieved. Of course, the Escazu Agreement will only be as good as States decide it will be, and thus, attention should be paid to the national implementation provision foreseen in Article 13, in order to prevent misinterpreting the agreement as a soft obligation. Notwithstanding, this regional treaty on the right to a healthy environment provides one more normative tool to facilitate the engagement of Latin American States with the business and human rights agenda, whether through law or policy. It also opens a new window for the Inter-American Human Rights System to move forward in linking the right to a healthy environment with the duties to respect and ensure human rights under the American Convention on Human Rights, and to engage different stakeholders on environmental and human rights protection on the basis of an international instrument.

Humberto Cantú Rivera is a Professor at the School of Law of the University of Monterrey, and Director of the Latin American Academy on Human Rights and Business. 

This blog post inaugurates a series on Latin America that is directly related to the forthcoming special issue of the BHRJ on the region. As such, it is an effort to highlight the different contributions that the region has made, and continues to make, to the business and human rights field in general. This series, curated by the three guest editors of the special issue – Danielle Anne Pamplona, Ulf Thoene and Humberto Cantú Rivera – will cover some of the recent trends and developments in law, policy, business management and other fields