On 1st February last, the Costa Rican Legislative Assembly decided not to keep the file on the Escazu Agreement, which had been submitted to it in February 2019 (see, among many news cables, this cable from the EFE news agency replicated in Swissinfo and this very complete article, which we recommend you read in its entirety, published in the digital media Delfino.cr).
Upon expiry of the four-year deadline, this file will be definitively archived, unless the Costa Rican Executive Branch decides to present it again in the legislative stream: it is estimated that this possibility will not occur with the current authorities who took office in May 2022.
As will be recalled, the Escazú Agreement is an international treaty adopted under the auspices of the United Nations Economic Commission for Latin America and the Caribbean (ECLAC) in March 2018 in Costa Rica by 33 delegations from Latin America and the Caribbean.
The long negotiation process, which began in 2013, was co-led by Chile and Costa Rica. The text finally adopted in Costa Rica on 4 March 2018 consists of 26 articles (the text is available at this link): it aims to translate into legal terms Principle 10 of the 1992 Rio Declaration on informed public participation in environmental matters. Its entry into force on 22 April 2021 was welcomed by several States, civil society organisations and international organisations, including the UN Secretary-General himself (see official communiqué of the Secretary-General):
In March 2022, an important meeting in the Costa Rican capital hosted by ECLAC with the main international development cooperation banks (World Bank, CABEI, IDB, EIB) and representatives of the Organisation for Economic Co-operation and Development (OECD) reaffirmed that the Escazu Agreement is perfectly in line with the general guidelines on transparency and accountability promoted by these international bodies in investment matters (see official press release). For reasons that merit investigation, and have not been investigated, this press release and the event as such were not referenced in the Costa Rican press (Note 1).
As is well known, Escazú has been described by numerous specialists as a modern instrument of environmental management and governance, and this from many different perspectives and disciplines (Note 2). A recent call to Brazil to guarantee the survival of the Yanomami population demands the prompt ratification of the Escazú Agreement (see official communiqué of the Inter-American Commission on Human Rights of 8 February 2023).
In April 2022, ECLAC disseminated an implementation guide (almost 200 pages long) to the Escazú Agreement: this is a very valuable text, and highly recommended reading for social organisations, as well as for decision-makers and public entities, and interested members of the general public.
In November 2022, the first forum on human rights defenders on environmental issues met in the Ecuadorian capital (see programme and videos of this important activity).
These and other activities, totally ignored by most of the Costa Rican press, denote the strong impetus that ECLAC and the States Parties gave to the Escazú Agreement in 2022, in order to achieve its prompt implementation and correct application.
An unusual event
It should be noted that it was without Costa Rica that the Escazú Agreement officially entered into force on 22 April 2021, with 12 States Parties, Argentina and Mexico being the States that made it possible to reach the necessary number for its entry into force: the current status of signatures and ratifications is available at this official United Nations link, with, in addition to the 12 aforementioned States, an additional instrument of ratification (Chile) deposited in June 2022, and another still pending (Colombia) after approval by both chambers of its Legislative Branch and condemnation by the Colombian President in November 2022 (see our note in this regard).
In the case of Costa Rica, it is the first time that such an absence has been observed on the part of a State that is co-leading the negotiation of an international instrument and that gives the name of one of its cantons to the approved agreement: Costa Rica is doubly absent, not having been among the first States to ratify it and not being included in the group of States that give it legal life by reaching the minimum number of ratifications required for its entry into force (11 States required in the case of the Escazú Agreement).
This is a totally anomalous and unusual situation, and above all unknown to date in international diplomatic practice. Both inside and outside Costa Rica, the inconsistency with the international image projected is absolute.
In the domestic ambit, the inconsistency of several political parties is more than evident when recalling that in February 2020, this same international instrument was approved in the first debate with 44 votes in favour and 0 against (see table with details of voters on 13 February 2020): rarely has such a sudden change of heart been observed in Costa Rica by various political groupings, whose members withdrew in May 2022 from the legislature (2018-2022) without providing any explanation.
Persistent loopholes in the environmental legal system
It is quite wrong to argue that the Escazú Agreement does not add anything new to the existing Costa Rican legal framework, as the current Costa Rican authorities have heard to justify its non-approval.
A notorious case of drinking water contamination in the community of Cipreses (Cartago) has shown the total lack of expertise of the current Costa Rican authorities in charge of monitoring the quality of the water supplied (see the letter of the EcoCipreses collective of 30 June): this case confirms – once again – the urgent need to guarantee and consolidate informed citizen participation in environmental matters in Costa Rica. This is precisely one of the purposes of the Escazú Agreement.
The impact on the human health of people in communities affected by the pineapple expansion is another heavy and dramatic debt that the Costa Rican health and environmental authorities have been carrying for many years: see this very complete report from 2019 published in the digital media Delfino.cr, whose reading is recommended, and the always outrageously topical documentary, “No nos tapen la boca: hablemos de contaminación piñera. Homenaje a Mayra Umaña, lideresa ecologista”, from the programme Era Verde, Canal 15 UCR, made in 2014. It is worth noting the environmental catastrophe caused by a mining company in Abangares on 15 July 2022 (see the article in Semanario Universidad), which once again exposed the lack of oversight capacity of the Costa Rican state and the high risks of chemical mining in tropical countries.
Among other examples of legal omissions in Costa Rica that the Escazú Agreement seeks to solve, the defencelessness of people who defend the environment is a persistent reality in Costa Rica. A valuable publication entitled “A memory that turns into a struggle: 30 years of criminalisation of the environmental movement in Costa Rica” documents a reality that is far removed from the image of green and non-violent democracy promoted internationally by the Costa Rican state over the last 30 years. In fact, a report presented by the United Nations Special Rapporteur on the rights of indigenous peoples in September 2022 expressly recommended that Costa Rica ratify the Escazú Agreement without further ado, given the situation of total vulnerability suffered by leaders of several Costa Rican indigenous communities, two of them having been assassinated in less than a year between March 2019 and February 2020 (see our note on the matter).
Another aspect that this international treaty seeks to regulate, such as access to information in environmental matters, is subject to persistent loopholes that force Costa Rican citizens and organisations to systematically resort to the courts to obtain information that state entities deny them or give them only partially. The same recourse to national justice can be observed with regard to the participation of communities potentially affected by a project of a certain magnitude: on this very point, Chile recently established a mechanism following precisely the guidelines of the Escazú Agreement (see official link of the SEA – Servicio de Evaluación Ambiental – in this regard).
The increasing socio-environmental conflicts registered in Costa Rica in recent times, largely caused by the Costa Rican state itself, are evidence of the various shortcomings of the current regulatory framework in environmental matters (and the reiterated reports of the State of the Nation amply document this). On the other hand, international measurements such as the EPI indicator elaborated by two prestigious universities in the United States, confirm Costa Rica’s accelerated decline in its former positions in terms of environmental performance: see for example the article in Semanario Universidad or this article in La República, both from June 2022, on the dizzying decline suffered between 2012 and 2022, which does not seem to be of much interest to political decision-makers in Costa Rica.
In June 2012 the vehicle of José Menéndez and Sonia Bermúdez was burned. The couple had denounced logging as well as the extraction of stones from the Banano river in Limón. Photo extracted from this article from Semanario Universidad of 6 April 2021 on the Escazú Agreement. As is often the case in Costa Rica, 10 years after, impunity reigns in this case, as in many others in which environmentalists are the target of actions of this nature (SU).
With regard to other “arguments” circulated from April 2021 by an influential Costa Rican business chamber (UCCAEP), a first attempt to publicly debate them with specialists did not succeed (see the Café para Tres broadcast on Delfino.cr on 22 April 2021, which UCCAEP representatives did not want to attend). Two subsequent attempts to hold public debates with UCCAEP representatives were also unsuccessful (Note 3).
Deep ignorance in Costa Rica about the content of the Escazú Agreement
Despite the fact that this innovative and cutting-edge instrument was adopted in Costa Rica on 4 March 2018, and celebrated as such by ECLAC, its dissemination has been relatively limited in Costa Rica. One only has to review the headlines in the press at the time of its adoption in March 2018 to notice a profound media silence in several of the main Costa Rican media, which to date has not been explained or investigated to any great extent.
The Costa Rican state itself has failed to disseminate its content since 2018, and there have been very few initiatives from public universities and social entities, with the University of Costa Rica (UCR) possibly being the entity that has registered the greatest number of talks, lectures, radio broadcasts and publications, which we had the opportunity to review a few months ago (Note 4).
In a recent survey published in November 2022 (see document) and carried out by the National University (UNA), it can be read (page 21) that:
“However, despite the fact that the Escazú Agreement entered into force on 22 April 2021, and that the country proposed and led the negotiation process, to date it has not been ratified. Therefore, the surveyed population was asked if they had heard of the Agreement, where the majority of respondents, 92.6%, had not heard of it, while only 7.4% had heard of it”.
This low figure of 7.4% can even be explained by a rather peculiar strategy of some of the mainstream media, which tends not to open their spaces to a detailed analysis of the content of this international treaty itself, so as not to inform Costa Ricans about the scope of this treaty. We invite experts on what could be called a “strategy of invisibilisation” to take an interest in what has happened with the Escazú Agreement in some of Costa Rica’s major media outlets.
Nevertheless, the same survey shows that Costa Rican public opinion is very much in favour of the main objectives and purposes set out in the text of this regional treaty (p. 23 and in particular Table 5 of the UNA survey referred to above).
By way of conclusion
Beyond the general lack of knowledge in Costa Rica about the exact content of the Escazú Agreement, and the lack of information that some officials seem to have about the incompleteness of the Costa Rican environmental legal framework, Costa Rica’s international leadership in Latin America in environmental matters has been called into question since 1 February, and there is very little that the authorities can do about it.
The simple fact of shelving the Escazú Agreement has already substantially damaged Costa Rica’s image abroad: There are several recent headlines in the international press at the beginning of February 2023 that show the total incongruence of Costa Rica in environmental matters (see for example this article from France24 entitled “Costa Rica, promoter of the Escazú Agreement on the environment, lets it die” or this article from France24 entitled “Costa Rica, promoter of the Escazú Agreement on the environment, lets it die”), or this article published in GoodPlanet Mag entitled “Le Costa Rica fait passer a la trappe un traité de défense de l’environnement” or this article by the AFP agency replicated in El Observador de Uruguay using the word “retroceso”).
From the United Nations, the same Independent Rapporteur on Human Rights and the Environment was quick to express his profound dissatisfaction with the recent decision of the Costa Rican Legislative Assembly to shelve this legislative file (see article published in the Costa Rican digital media Delfino.cr).
As indicated in an article published by Semanario Universidad on 1 February, by not approving the Escazú Agreement, “Costa Rica is losing all international credibility by turning its back on two traditional pillars of its foreign policy, such as human rights and the environment”.
It is worth noting that the Costa Rican Legislative Assembly’s decision to shelve the Escazú Agreement will in turn produce effects beyond Costa Rican territory, as it now offers an unexpected argument to the Escazú Agreement’s detractors in Guatemala, El Salvador and Honduras: these are Central American states that either persist in not ratifying it, such as Guatemala, which recently notified a peculiar request to the UN Secretary General (Note 5), or that have not signed it at all (El Salvador and Honduras). At the same time, in the South of the Latin American continent and in the Caribbean, this file will also be of great use to political and economic sectors opposed to recognising the rights of environmental defenders in States that have not yet signed it (Cuba and Venezuela); or that have signed but not yet ratified the Escazú Agreement: namely, jointly with Costa Rica, Brazil, Haiti, Paraguay, Peru and the Dominican Republic.
– Notes –
Note 1: Neither on the day this ECLAC press release was released nor in the following days was there any reference to it in the Costa Rican mainstream media. Some 10 days later, on 18 March to be exact, it was Semanario Universidad that published this press release.
Note 2: See for example PEÑA CHACÓN M., “Transparencia y rendición de cuentas en el Estado de Derecho ambiental”, Delfino.cr, 17 April 2021 edition, available here. On the Escazú Agreement, we refer to three valuable (and voluminous) collective publications that detail the scope of its content and its importance for the consolidation of a true environmental democracy in Latin America and the Caribbean: ATILIO FRANZA J. & PRIEUR M. (dir.), Acuerdo de Escazú: enfoque internacional, regional y nacional, Editorial Jusbaires, Buenos Aires, 2022, 670 pgs. Work available in full at this link; as well as BARCENA A., MUÑOZ AVILA L., TORRES V. (Editors), El Acuerdo de Escazú sobre democracia ambiental y su relación con la Agenda 2030 para el Desarrollo Sostenible, 2021, CEPAL / Universidad del Rosario (Colombia), 298 pages, available at this link; and PRIEUR M., SOZZO G. and NAPOLI A. (Editors), Acuerdo de Escazú: pacto para la eco-nomía y democracia del siglo XXI, 330 pages, 2020, Universidad del Litoral (Argentina), available at this link. The fact that this is a cutting-edge instrument can be further confirmed by reviewing the developments to ensure a correct application of Article 7 and Article 9, elaborated by ECLAC itself in the implementation guide of the Escazú Agreement, formally presented in April 2022 (available here, particularly on pp.108-126).
Note 3: Several attempts to publicly debate these supposed “arguments” with academics and environmental specialists failed: first in April 2021 with a space sponsored by the Costa Rican digital media Delfino.cr, then in May 2021 with a debate organised by the UCR (see also UCR’s official communiqué), as well as in June 2021 by the Costa Rican College of Biologists. As these were virtual forums in which UCCAEP was asked to connect its representatives at a specific time on a date set in advance, the reasons given for not attending raise very valid questions. Sending communiqués to congressmen against the Escazú Agreement and constantly shying away from public debate on their supposed “arguments” seems to have been the tone for some in Costa Rica.
Note 4: On various activities produced by the UCR, see the section “Algunos aportes realizados desde la Universidad de Costa Rica” in BOEGLIN N., “Colombia a pocos meses de ser oficialmente Estado Parte al Acuerdo de Escazú. Reflexiones desde Costa Rica”, Voz Experta section, 16 November 2022 edition, UCR Portal, available here.
Note 5: In a rather unique letter, rarely seen in the United Nations, Guatemala sent the following notification to the United Nations on 20 December 2022, announcing that it has no intention of becoming a State Party in the future (see bottom of this link):
“In a communication received on 20 December 2022, the Government of Guatemala informed the Secretary-General of the following: “I have the honour to write to you in reference to the Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean, also known as the Escazú Agreement, adopted in Escazú on 4 March 2018 and signed by the Republic of Guatemala on 27 September 2018.The Republic of Guatemala officially informs you, as depositary of the Escazú Agreement, that it does not intend to become a party to the Agreement. Its signing of the Agreement shall not, therefore, give rise to any legal obligations for the Republic of Guatemala, in accordance with international law”.
