SANTIAGO — After leading the negotiations for the first-ever Latin American treaty on environmental issues, Chile said it will not sign the Escazú treaty. Among the reasons given is the ambiguity and lack of clarity in the document, as well as a loss of sovereignty. Many environmentalists, lawyers, and experts argue there is no valid reason not to sign.
Latin America and the Caribbean have been negotiating for six years to create the first-ever environmental agreement for the region. Known as the Escazú Agreement, the treaty seeks to protect the rights of information, participation, and environmental justice. It opened for signature on Sept. 27, 2018, and the deadline to sign is Sept. 26, 2020.
Chile was one of the prime movers of the initiative. It even led the negotiations with Costa Rica, and the content was agreed upon in Santiago. Now, however, the government has publicly announced that Chile will not sign the agreement.
According to the Environmental Justice Atlas, which documents ecological conflicts around the globe, Chile has the 15th highest number of environmental conflicts.
As for the region, according to Amnesty International, Latin America is the deadliest for environmental activists. The NGO Global Witness reported that in 2019, over two-thirds of the killings of land defenders took place in Latin America.
The Escazú Agreement not only seeks to strengthen the rights of information, participation, and environmental justice, but it is also the first in the world to mention the protection of land defenders.
How Negotiations for Escazú Began
International cooperation in environmental issues goes way back. In 1992, a UN conference on environment and development, known as the Earth Summit, was held in Brazil. The declaration that emerged from that meeting established 27 principles to promote international collaboration for the protection of the environment.
The 10th principle established that “environmental issues are best handled with the participation of all concerned citizens … At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities … and the opportunity to participate in decision-making processes … Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.”
A more recent conference, known as Rio+20, was held in 2012, where Latin American countries discussed the creation of a treaty, based on principle 10 of the Earth Summit. Sebastián Piñera’s government was a prime mover of the initiative and even ended up presiding over the negotiations that followed.
In 2014, the countries formally initiated negotiations to create the treaty. This was established in the “Decision of Santiago,” that formed a Negotiating Committee and a Board of Directors chaired by Chile and Costa Rica.
After nine meetings of the Negotiating Committee, the agreement was adopted in Escazú, Costa Rica, in 2018. Chile and Costa Rica then released a statement “reaffirming their commitment to the signing and prompt entry into force of this Agreement.” However, only a few months later, the Chilean government decided to postpone the signing, arguing that further study of the content was necessary.
This year, tensions re-emerged in the region because the deadline to sign is Sept. 26. After that, any country can still decide to take part in the treaty, but will have to do so through a process of accession. Less than a week from the deadline, on Sept. 22, Chile reaffirmed its refusal to sign.
The Arguments Behind The Decision
Minister of Foreign Affairs Andrés Allamand attended a session in Congress to explain to the Foreign Relations and the Environment Commissions the reasons for the government’s decision. Among the arguments, he mentioned that the agreement was very vague and that it failed to define certain concepts that could compromise national legislation.
Allamand also said that Chilean environmental legislation “is already very modern and complete on the rights referred to in Escazú.” Environment Minister Carolina Schmidt has also given this argument several times.
Juan, sobre Escazú, Chile tiene ya en su legislación ambiental incorporado todos estos temas a diferencia de los otros países de AL y el Caribe, el foco hoy está en fortalecer la institucionalidad ambiental chilena, nuestra @SMA_CL, los tribunales ambientales el SEIA, el SBAP 👇
— Carolina Schmidt (@CarolaSchmidtZ) April 13, 2020
Valentina Durán, an international jurist in environmental law and director at the Center for Environmental Law of the Universidad de Chile, told Chile Today that the country initiated the negotiations “with basically the same environmental legislation that we have today.”
Durán said that Chile has made great advances in relation to other countries. However, even the OECD has offered a set of recommendations of things that are yet to improve.
When asked for an example of necessary improvements in the current legislation that could be ensured with the Escazú Agreement, Durán mentioned the case of Quintero and Puchuncaví. “In that case, the state was condemned, not the companies. The companies were not even forced to reduce emissions because of the lack of information on the pollutants and where they came from. This is one of the improvements that the country can make in terms of information management.”
A second argument for not signing the Escazú Agreement is that the country’s sovereignty could be compromised and that Chile could face another international trial, for example, with Bolivia. This last possibility emerges from article 11 of the treaty, which states that the parties have to pay special consideration to landlocked countries.
Sebastián Benfeld, environmental activist and coordinator of “Escazú Ahora Chile” (“Escazú Now Chile”), told Chile Today that he thinks this is the worst argument the government has given because the agreement specifies that the resolution of conflicts between countries will be through dialogue, and also because “this article is in at least 12 other treaties that Chile has already signed and ratified.”
One of the treaties Benfeld referred to is the UN Framework Convention on Climate Change that Chile ratified in 1994. Article 4.8 of this convention states that “Parties shall give full consideration to what actions are necessary … to meet the 15 specific needs and concerns of developing country Parties … especially on … land-locked and transit countries.”
Durán agrees with Benfeld that this argument is not valid. “It is absolutely imaginary. The controversy resolution system that the Escazú Agreement has — which is almost identical to the ones in other agreements Chile has signed, such as the Minamata agreement that Allamand himself voted in favor when he was a Senator – calls for dialogue … the states can express their willingness to resolve disputes in an international court but if they don’t, conflicts will not have to be resolved there.”
A third argument given by the government for the rejection of the agreement is that it is “a mixture of human rights with environmental rights.” Andrés Kogan, sociologist and director of the Plurinational Water Observatory, told Chile Today that “this argument comes from a neoliberal position … human rights are obviously linked to environmental rights. The more linked they are, the better. Environmental defenders are defenders of human rights, and that is a fact.”
The relationship between human rights and environmental rights is recognized in article 19, section 8º of the Constitution as “the right to live in a healthy environment.” The United Nations also acknowledges that human rights are intertwined with the environment because “human rights cannot be enjoyed without a safe, clean and healthy environment; and sustainable environmental governance cannot exist without the establishment of and respect for human rights.”
Congresspersons and experts have argued that there are economic interests behind the refusal of the government to sign the treaty. About this, Kogan said that “the groups linked with extractive projects are evidently pressing the government not to sign the agreement.” The Chilean Commission for Human Rights also said that the position of the government “prioritizes economic interests over the environmental rights of communities.”
Potential Effects Of The Treaty in Chile
Constanza Espinosa, co-founder of the Fundación Glaciares Chilenos (Chilean Glaciers Foundation), told Chile Today that the aim of the agreement to ensure the right to information would help both Chilean communities and ecosystems.
When asked for an example, Espinosa mentioned the case of Pascua-Lama, a gold mining project recently shut down after seven years of being on hold over environmental concerns. “In that case, the project was paralyzed thanks to the union of the community. But there are other cases where this doesn’t happen because people don’t have all the information and they become aware of the damage once it has already been made. The Escazú Agreement ensures participation and transparency on the information that would prevent this from happening.”
Benfeld talked about another potential improvement that the agreement would bring to the country. “Those responsible for measuring the emissions today are the same companies that emit them … The treaty forces the state to oversee the emissions in sacrifice zones, and it also encourages NGOs to measure them, to get even more objective results.”
For Durán, having better access to information and participation is a tool of conflict prevention. “Committing to effectively implement those rights, far from exacerbating conflicts, will help prevent them. And there is enough experience and evidence to support this.”
International Reputation Weakens
During the session in Congress in which Allamand and Schmidt explained the reasons for not signing, the Communist Party representative Carmen Hertz spoke about the international repercussions of the government’s decision. “Chile is left in an extremely uncomfortable position. We cannot claim to have just realized that there are several problems in an agreement that we drafted.”
The president of the Commission of Foreign Relations, Jaime Naranjo, agreed with Hertz and questioned the decision. “Where is the credibility of our country? We are giving the image that we act in one line and then take direction in an opposite one.”
Being an international jurist, Durán thinks that this decision will even cost legitimacy to the country’s future commercial negotiations. “How will other countries keep on negotiating important commercial agreements with us if we disembark at the last minute?”
Hope That A Future Administration Will Sign
The final date to sign the agreement and be one of the founding members is Sept. 26, but countries can still join afterward. Durán thinks Piñera’s government will not sign the treaty, “but I’m sure that another government will, because it is consistent with our foreign policy.”
Benfeld thinks that the longer the signature is delayed, the more damage is done to the communities. “Not signing on Sept. 26 means the postponement of the delivery of the fundamental rights that are being violated today. Each day that passes is another day of uncertainty for people who live in sacrifice zones and have no idea what they are breathing.”
The agreement currently has 22 signatures, and 9 ratifications; 11 of the latter are required for the treaty to come into force.