Environmental, Natural Resources, & Energy Law Blog

The Escazu Agreement and the Rights of Nature in the LAC Region

Alexander Ramdass

The Latin American and the Caribbean region (LAC) is geographically and ecologically one of the most diverse regions on the planet. It has more than 5 million kilometres of arable land; 20 percent of the world’s proven oil reserves, 23% of the world’s forested areas, 60/70% of all lifeforms on Earth, and it receives 29% of all earth’s rainfall. The wide range of biodiversity, including ecosystems, and other assets such as minerals and land found in the region, offer opportunities and the potential to support livelihoods and a good quality of life to its population of over 600 million people at all scales well into the future.[1] However, despite their ever increasing dependence on the environment, countries in the LAC region have not had best track record as far as environmental preservation is concerned. Between 2010-2020 the Food Agriculture Organization estimated that South America lost an average of 2.6 million hectares of forest per year.[2] In fact, as of 2021 it was estimated that nearly 35% of the Amazon rainforest has been deforested.[3] Further to this, more than 8000 endemic plants and 2300 animals are at a high risk of extinction.[4] The region’s ocean management, also leaves a lot to be desired as studies have measured the concentrations of plastic waste in the Caribbean sea to be around 200,000 pieces of plastic per square kilometre.[5]

Recognizing the precarious state of the LAC region’s environment, in January of 2021, 25 countries[6] of the LAC region signed and 14[7] ratified an agreement called the Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean (Escazu Agreement). The Escazu was considered a “win” by many in the civil sector not only for the increased protections and access to information it provided them, but also because it was the first pronouncement on a right to a healthy environment at a regional level. Collectively, Articles 4(1)-(3) of the Agreement require that all member states to; (1) recognize the right to a healthy environment, (2)ensure that the right is freely exercised and (3)adopt legislative/regulatory measures in their domestic provisions to guarantee the right’s implementation.[8] Justice Winston Anderson of the Caribbean Court of Justice (CCJ) was among many who saw the value of the agreement’s adoption, remarking that it represented an affirmation of the Caribbean’s commitment to respecting environmental rights and its adherence to sustainable development.[9] Despite, the Agreement’s magnanimity, the consequences of such a bold declaration have yet to be observed in the region. Rates of deforestation continue to rise; endangered species remain endangered, and our oceans are no less polluted.[10] While some may point to the failures of regional Governments to effectively implement the principles of the Escazu Agreement; as an explanation for the region’s abysmal record, the problem may not be that simple. From inception, the notion of a right has always been perceived as something which is intrinsically human. This much is observed by the preamble to United Declaration of Human Rights where on several occasions the notion of a right is tied to concepts such as human dignity and equality and that humans are born with these rights by virtue of simply existing.[11] It is from the concept of a human oriented right that much of our laws have developed, including those laws that concern how humans interact with nature. As the world approaches several climate tipping points[12] and we appear to be heading towards an ecological disaster the likes of which we’ve never experienced, it is perhaps high time that we revaluate the longstanding notion of a right as something that is tied to being intrinsically human.For far too long, we have relied on an outmoded framework of environmental regulation that considers nature to be composed of separate and independent parts, rather than components of a larger whole. Nature, especially in the LAC region, should no longer be subordinate to economic interests and instead, it should have a right to thrive and benefit from human civilization.

Before we examine nature’s case for legal personage, it is prudent to look at the right to a healthy environment as it exists in the LAC region presently. The right to a healthy environment implies the sustainable, moderate use of earth’s natural resources while focusing on protection and conservation, including the flora and fauna and the collateral conditions for its creation.[13] In 2021, the United Nations General Assembly (UNGA) recognized the right to a healthy environment as a universal human right, noting that, “A clean, healthy and sustainable environment is essential for our survival. A stable climate is a precondition for good harvests and food security, for economic well-being and progress on human development. Sustainably managing, preserving and restoring healthy ecosystems and the rich biodiversity upon which healthy lives and livelihoods depend is critical to a development trajectory that ensures no one is left behind.”[14] The UNGA notes that at present, 150 countries have recognized the right to a healthy environment in some form in their domestic legal systems. This includes many countries in the LAC region.[15]

The Escazu Agreement provides a great benchmark for evaluating the success of ‘‘right to a healthy environment’ laws in LAC region. A recent study found that an overwhelming majority of respondents, hailing from civil society and the other key stakeholder groups, believe that coordination between state-led initiatives and rights-holders’ initiatives aiming to address healthy environment challenges is somewhat insufficient, with the average ranking of 4.3 on the scale of 0 to 10.[16] Regional activists, particularly those in the Commonwealth Caribbean have also been very slow in adopting the right to a healthy environment in their respective litigation effort and when they have done so, they have been met with varying degrees of success. For example, inCAL v Attorney General (2007) a Belizean Court accepted that the government’s failure to recognize and protect Mayan interests in their traditional lands violated the security of their being, compromised their right to life, and denied them the protection of the law under the Belizean Constitution.[17] Conversely, in the Trinidadian case of Fishermen and Friends of the Sea v The Environmental Management Authority and Atlantic LNG (2004), a judge disagreed that an illegal grant of a certificate of environmental clearance could breach the constitutional rights of residents to life, protection of the law, and respect for family and private life since the granting of constitutional rights was a matter for Parliament.[18]

At the core of the difficulty in enforcing the right to a healthy environment is the inevitable trade off which occurs when Courts are tasked with balancing rights. Rights are not absolute things, often they conflict with each other and can be limited by the State. Because the right to a healthy environment is so interwoven with the right to life, the right to a healthy environment is often forced to compete against other important aspects of human existence. Consider the statements of the Court in FFOS v Atlantic LNG, “I am reluctant to elevate them or categorise them together with those rights entrenched in the Constitution, despite also accepting that the latter is a living document which should be interpreted generously. The position remains, however, as acknowledged in Europe and India, for example, that these “rights” are subject to other considerations…It is sufficient to say that issues of environmental control often involve the delicate balancing of competing social and economic interests, as well as the application of specialised expertise to the right to a healthy environment.”[19] As is observed, the right to a healthy environment is inevitably limited by the extent to which “a healthy environment” is commensurate with State policy and interest. It only provides protection within the parameters of human existence and as such, it is susceptible to being limited when said protections clash with other “important interests.”

If protection of the natural environment is a serious priority for the countries of the LAC region, the objectives of the Escazu Agreement will be more fruitfully realized should the contracting parties adopt a ‘Rights of Nature’ instead. According to the “Rights of Nature” doctrine, an ecosystem is entitled to legal personhood status and as such, has the right to defend itself in a court of law against harms, including environmental degradation caused by a specific development project or even by climate change. [20]Unlike the right to a healthy environment, the Rights of Nature doctrine treats the environment as a separate legal entity deserving legal protection of its own. In this model, nature, like humans will be conferred with rights by virtue of its existence. As such, Legislators, Executive decision makers and the Courts are no longer forced to grapple with the ‘competing social and economic interests’ that often limits the right’s effect, but instead are forced to contend with the inherent Rights of Nature, whose interests are not always in line with the advancement of human civilization.Already the ‘Right of Nature’ has been observed to be taking effect in some LAC jurisdictions. For example, in the Argentinian case of Asociación Civil por la Justicia Ambiental v. Province of Entre Ríos, et al[21] a group of children, filed a class action suit against the governments of the Province of Entre Ríos and the Municipality of Victoria City for their alleged failure to protect environmentally sensitive wetlands. The plaintiffs asked the court to declare the Paraná Delta a “subject of rights” and an essential ecosystem for mitigating and adapting to climate change, and to designate a “guardian” of the rights of the Paraná Delta who will be responsible for controlling the conservation and sustainable use of the wetlands. Another example is the Peruvian case of Alvarez et al v. Peru[22] where a group of Peruvian youths filed a suit seeking the recognition of the Peruvian Amazon as an entity subject to the rights of protection, conservation, maintenance, and restoration. Both cases are still pending.

Precedent for prescribing a ‘right to nature’ though minimal has begun to surface. For example, in the Indian case of Mohammed Salim v State of Uttarakhand, the highest court in the state of Uttarakhanda, India declared the river Ganges (known as the Ganga in India) and its main tributary Yamuna as rights-bearing “living entities,” effectively granting them the legal status of personhood.[23]The Court laid down the rationale for conferring separate legal personhoodonto “non human things” Justice Rajiv Sharma, notes “ With the development of the society where the interaction of individuals fell short to upsurge the social development, the concept of juristic person was devised and created by human laws for the purposes of the society. A juristic person, like any other natural person is in law also conferred with rights and obligations and is dealt with in accordance with law…This may be any entity, living inanimate, objects or things. It may be a religious institution or any such useful unit which may impel the Courts to recognise it.”

In the LAC region, there are numerous areas of environmental importance which are of such global importance, they are deserving of legal personhood. This includes, the Amazon Rainforest, the Caribbean Sea, the Andean Mountain ranges etc. These important global ecosystems should be conferred with legal personhood to protect their own interests. [24] By making this shift, the LAC environment will no longer fall victim to the “development trap” which forces so many countries in the global south to forgo environment protection in the pursuit of development. Instead, these countries will be required to pursue development in a manner which respects the right of the right of the environment to exist. Moreover, this would bring the LAC authorities closer to meeting the mandates of the Escazu Agreement as it promotes a model of sustainable development and participation in environmental decision making that fairly accommodates the environment and the communities which depend on the same into decision making by providing them proverbial “seat at the table” as opposed to being a consideration in host of socio-economic factors.

While the Rights of Nature doctrine has yet to root in the world, much less the LAC region, the dire state of our environment requires that serious consideration be given to the concept as a means of protecting and preserving the environment.