Written by María Emilia Lehne Cerrón
November 1, 2024
FOCUS: This paper emphasises the importance of the Escazú Agreement, a treaty designed to protect the environment and human rights in Latin America and the Caribbean. Notably, Article 9 requires countries to safeguard those HRDs who defend the environment.
The analysis identifies three key obstacles regarding, in some cases, the ratification and, in others, the implementation: i)a lack of political will among governments to enforce the treaty, ii) weak institutions failing to protect defenders, iii) powerful economic interests undermining environmental safeguards.
The author considers Escazú a significant step forward and points out how it requires strong political commitment and effective enforcement (political will) to ensure a safer environment for defenders and advance environmental protection in the region.
In our publication, The Time is Now, we highlight how it is generally agreed that political will is a necessary but insufficient condition for a public policy to have positive results. Other factors need to be taken into account, such as the following:
- Results also depend on factors other than political will.
- Political will and capacity to act are different concepts.
- Political will is frequently assigned to an individual (a leader), but is also associated with decisions made by a government team or by representatives of different levels of authority.
- Political will depends on the preferences of powerful groups – and in particular of elites – concerning the desired results of a policy.
- The assessment of political will depends greatly on context, on cultural factors, and on the problems being approached, etc.
In light of these conclusions, we have arrived at an open, inconclusive result that requires further investigation. A government that decides to establish a public policy for the protection of HRDs should include in its plans any steps that might be required to construct the political will required for its success.
Programmes cannot be analysed merely in terms of whether or not political will is present. However, it is also true that in an area as complex as the right to defend human rights, a public policy’s success depends on a clear expression of political will.
The Escazú Agreement – a groundbreaking treaty that integrates human rights with environmental matters – is the first legally binding agreement of its kind in Latin America and the Caribbean. Nevertheless, South America is currently engulfed in a crisis. Massive deforestation and climate change are causing wildfires to spread over millions of hectares, wreaking havoc on one of our planet’s most vital ecosystems. Moreover, environmental and human rights defenders (short: defenders), are facing serious risks when protecting their environment. The inclusion of Article 9, which emphasizes the protection of defenders, is a clear recognition of the magnitude of this problem. Despite the potential of Escazú as a legal tool for safeguarding the environment, many States have yet to ratify it, and implementation has been slow and ineffective.
This blog post explores the challenges faced by defenders in Latin America, examines the obstacles to implementing the Escazú Agreement, and proposes three key strategies to improve environmental protection and compliance with the Agreement.
Environmental Defenders’ Challenges
Environmental defenders face life-threatening dangers such as intimidation, harassment, stigmatization, criminalization, assaults and even murders. Indigenous defenders are particularly targeted, as attacks on them aim to undermine community leadership, autonomy and cultural identity. Since 2012, Latin America has been the most dangerous region for defenders, with 177 killed worldwide in 2022—nearly 90% of these in Latin America. In 2023 alone, there have been 126 murders. Despite Escazú, the threats remain rampant. Moreover, countries like Peru and Brazil, which are home to many indigenous communities, have yet to ratify the Agreement. Colombia, while a signatory, is still the deadliest country for these defenders, with 34 deaths reported in 2022.
According to Article 9, States must create a safe environment and take effective measures to protect defenders. However, this is not happening adequately. To improve the situation, we need cooperation and transparency from governments, businesses, and NGOs. National laws must align with international treaties, local mechanisms should be established, and, crucially, there must be political will to make this work.
Hurdles in Upholding the Treaty
Where is the Political Will?
One of the main issues is the lack of political willingness to ratify the Treaty and implement the provisions in national norms. While political changes in Chile and Colombia have led to ratification, we can only hope similar shifts happen in Brazil, Peru, and other key nations.
Regarding Brazil, the political landscape is deeply polarized, making ratification and implementation difficult. Former president Bolsonaro weakened environmental institutions, dismantled protections, and attacked climate activists, all in the name of boosting the economy. His actions show that real environmental progress can’t happen without government support. Now, President Lula da Silva faces the tough challenge of pushing for ambitious environmental policies without a congressional majority, which partly explains Brazil’s slow progress on ratifying the treaty. Nevertheless, Brazil isn’t alone – countries like Honduras and Costa Rica also have civil society pushing for the treaty’s ratification.
In El Salvador President Nayib Bukele claims the treaty “affects development” and undermines “national sovereignty,” a sentiment echoed by several Latin American leaders as well.
Furthermore, in Peru, we observe that the ratification of national laws undermines environmental protection. For instance, the Peruvian parliament has passed a law extending the deadline for small-scale miners to formalize their operations until December 2024, which hampers efforts to tackle illegal mining and other harmful industries.
These actions show that environmental protection is still not a priority in many Latin American countries.
Navigating Structural and Institutional Roadblocks
Apart from the lack of political will, other key obstacles include impunity, economic interests, and poor coordination among state entities.
Many attacks on defenders go unpunished. Article 9 para. 3 of the Escazú Agreement mandates that State Parties take effective measures to prevent and address these attacks. However, only about 20% of such incidents have been investigated in the last decade across Latin America. Failure to hold perpetrators accountable not only fosters further violence but also undermines the protection of defenders.
Secondly, Latin America’s wealth of natural resources creates conflict between defenders and businesses wanting to exploit those resources. Powerful industries such as mining, logging and agriculture wield significant political influence, resulting in corruption and policies that prioritize economic gain over environmental protection. Consequently, efforts to ratify and implement the Escazú Agreement are often blocked. Moreover, transparency and accountability measures are resisted, which are, however, required by the Escazú Agreement (Art. 3).
Finally, there is a lack of coordination between state entities such as between ministries, the justice department and security forces. This leads to a fragmented and evidently ineffective response to dangers towards defenders. For instance, Peru established the “Intersectoral Mechanism for the Protection of Human Rights Defenders” in 2021, aimed at safeguarding defenders. Nonetheless, the implementation has been lacklustre, with key ministries failing to prioritize the initiative, attend meetings, or create adequate guidelines. The lack of engagement and communication between the governmental entities significantly hinders the mechanism’s success.
How to Enhance Compliance
Strengthening Legal Frameworks
What is striking about Escazú is that it is a very clear written treaty. The provisions use clear language which avoids ambiguity and closes legal loopholes. While this clarity might make some states hesitant to ratify due to the added responsibilities, it ultimately enhances enforcement and guides states in integrating international agreements into their legal systems. Strengthening legal frameworks is challenging but crucial for effective implementation. Governments therefore must revise existing laws and enact new ones in accordance with the Escazú Treaty.
On the international level, the Inter-American Court of Human Rights (IACtHR) can help advance and develop the rights and obligations set out in the Treaty. The IACtHR’s work complements the Agreement, highlighting the connection between environmental and human rights protections, and their pro homine approach (Art. 3lit.k) allows for a broad interpretation of rights, maximizing protection. Furthermore, the IACtHR’s Conventionality Control Doctrine can be particularly relevant as it mandates that if there’s a conflict between national laws and the American Convention, national judges must prioritize the Convention. This ensures that countries align their laws and actions with international standards. The Court has historically championed both human and environmental rights, influencing ratification and implementation through its rulings. In the recent case of Oroya vs. Peru, the Court found that Peru violated several rights outlined in the Convention, including the right to a healthy environment, access to information and political participation. While Escazú reaffirms these rights, its ratification does not impose new obligations but rather emphasizes existing ones enshrined in the Convention. The IACtHR can play a relevant role in directing states to ratify the Agreement and strengthen these commitments.
Empowering Domestic Actors
Domestic actors like civil societies, NGOs, and scientific experts are crucial for holding governments accountable under the Escazú Agreement. Their pressure can push governments to ratify and implement it, as seen in Colombia. Additionally, international pressure and public condemnation can harm a country’s reputation, motivating compliance with the Agreement’s provisions. Organizations can also establish strong transparency and accountability measures, such as independent oversight and public reporting, which makes it harder for governments to hide the consequences of their actions.
Strengthening Ties: The Power of Regional and International Cooperation
Promoting cooperation and sharing best practices among countries is imperative for strengthening environmental protection, especially in Latin America, where nations face similar challenges. The COP 3 introduced an Action Plan on Human Rights Defenders in Environmental Matters, focusing on four priorities to enhance the implementation of Article 9 of the Agreement: knowledge creation, recognition, capacity building, and evaluation – vital areas for advancing human and environmental rights.
Training, capacity-building (Art. 10), and education are vital for raising awareness, empowering participation, and promoting sustainable practices, particularly within the judicial and administrative branches of the State. Environmental defenders often face high levels of impunity, as they are wrongly perceived as criminals or terrorists hindering economic growth and national development. Rapid economic growth that promises short-term economic benefits is prioritized, often at the expense of sustainability, with political arguments suggesting that environmental agreements hinder development or limit sovereignty over natural resources. However, while addressing poverty, unemployment and underdevelopment is vital, it must go hand in hand with environmental protection. Environmental disasters, such as deforestation and water pollution, exacerbate these issues. Therefore, comprehensive public awareness campaigns and educational initiatives are essential to strengthen civil society’s response and hold governments and corporations accountable for environmental standards.
A Path Forward: Ensuring a Safer Future for Defenders and Our Planet
The Escazú Agreement is an essential tool for protecting defenders in Latin America, but simply ratifying it won’t guarantee their safety. Political will, robust mechanisms, and a strong civil society are essential for effective implementation – and there are actionable strategies for improvement. Strengthening legal frameworks is key, the IACtHR can positively influence compliance through its rulings, and domestic actors must maintain their crucial role in holding governments accountable and promoting transparency.
Despite the challenges, the Escazú Agreement represents a landmark step forward for environmental and human rights in Latin America. With coordinated efforts, we can realize its full potential and foster a safer, cleaner, and more sustainable environment.
