Colombia joins the Escazú Agreement to advance environmental rights

The Escazu Agreement also known as the Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean is an international treaty adopted in Escazu, Costa Rica on 4 March 2018, whose members include, among others, Latin American countries, such as Argentina, Bolivia, Chile, Ecuador, Panama, Uruguay and effective this year, Colombia[1].

The main purpose of this treaty is finding solutions to address issues in the effective enforcement of access rights to environmental information and justice in environmental matters[2] in Latin America and the Caribbean, while prioritizing a healthy environment and also the sustainable development and protection of the rights of individuals, thus ensuring access to justice in environmental cases and public participation in the decision-making process in matters of such nature.

The implementation of the above will be guided by principles such as the principle of equality and the principle of non-discrimination, the principle of transparency, the principle of good faith, the principle of permanent sovereignty of States over their natural resources. The regulation of this Agreement involves application of certain measures, namely: 

First of all, regarding the effectiveness of access to environmental information, the agreement provides that in accordance with the principle of maximum disclosure, the parties must guarantee the exercise of this right, comprising the request and delivery of information without having to justify the reason for such request and in the event the information is not held by the competent authority, the petitioner shall be advised. The above is extensive to individuals or groups under vulnerable situations, including indigenous peoples and ethnical groups, who will additionally receive assistance in connection with formulation of their petitions regarding access to information of an environmental nature.

In addition the authority receiving the information request will have to take into account the conditions applicable to delivery of the requested information, among which we find, delivering the information in the format requested by the petitioner (if available), providing a response to the request within a period no longer than 30 business days from the date of receipt of the request or advising in writing the applicant the justification to extend such term, in the exceptional case of needing more time than afforded under the law[3].

If there is any reason under domestic legislation which may lead it to refuse delivery of the information, the competent authority must advise in writing the refusal of access to environmental information, which document must also include the legal reasons grounding such decision, which may be adopted, as a general rule, under the regime of exceptions regime or if there is not any, in cases when dissemination of the information may endanger the life, security or health of individuals, adversely affect the national, public security or national defense, adversely affect the protection of the environment or if it may create a clear risk to law enforcement or prevention, investigation and prosecution of crimes[4].

Secondly, regarding access to justice in environmental matters, based on the guarantees established for the due process, the parties must ensure access to administrative and judicial proceedings for purposes of lodging the respective remedies in connection with the actions related to access to environmental information, public participation in environmental decision-making processes and any other which may affect or has affected the environment or legal regulations regarding the same.

Consequently, in furtherance of the duty of ensuring access to administrative and judicial proceedings, the State shall have entities with access to expertise in environmental matters, broad active legal standing in defense of the environment, possibility of ordering precautionary and interim measures to prevent or deal with environmental damages, mechanisms to facilitate production of evidence of environmental damage, such as reversal of the burden of proof and dynamic burden of proof, mechanisms to enforcement and execute administrative and judicial decisions and mechanisms for redress, while promoting application of alternative dispute resolution mechanisms in environmental matters.

Thirdly, in regard to public participation in environmental decision-making processes[1], implementation of an open and inclusive participation is expected in these processes by guaranteeing, among others, participation mechanisms for the public, promoting the same in connection with environmental matters of public interest, drafting of policies, strategies, plans and programs. In addition, the State will guarantee that the public opinion may be duly considered and contribute to performance of such procedures by allowing the same to be an informed opinion, by giving the public the information required to exercise the right to participate.

To conclude, in regard to the provisions under the Economic Commission for Latin America and the Caribbean regarding these actions, the participation of the public is fundamental to further advance institutional governance, thus allowing the interaction between individuals in making public decisions and the establishment of constructive dialogues based on the principles of transparency and collaboration[2].