Amicus Brief for Colombian Constitutional Court on the Escazú Agreement

Magistrate Jorge Enrique Ibáñez Najar

Constitutional Court

Palace of Justice

Bogotá, D.C. – COLOMBIA

Case: LAT0000484

Subject: Human Rights Watch Amicus Curiae on the Escazú Agreement

Juanita Goebertus Estrada, on behalf of Human Rights Watch, located at 350 Fifth Avenue, 34th floor, New York, United States of America, presents this amicus brief to the Honorable Constitutional Court of Colombia in the case LAT-484 concerning the constitutionality review of Law 2273 from 2022, which approved the Escazú Agreement. We respectfully state:

I.  Purpose and Summary of this Submission

Human Rights Watch respectfully requests that the Constitutional Court accepts this submission regarding international legal standards connected to the Escazú Agreement. 

Human Rights Watch supports Colombia’s ratification of the Escazú Agreement.  In this brief, we show that the Escazú agreement is consistent and builds on international human rights obligations and standards in a way that orients public policy towards addressing the climate crisis and better advancing the right to a healthy environment.

This brief is structured as follows: After providing Human Rights Watch’s interest in this case (Section II), we briefly describe the Escazú Agreement (Section III). We then provide an overview of international human rights law and standards connected to the Escazú Agreement (Section IV), in particular, regarding the rights to a healthy environment, to access environmental information, to public participation in environmental decision-making processes, to access justice in connection with environmental matters, and to the obligation to protect human rights and environmental defenders. Finally, we respectfully request that the Honorable Court consider our arguments and international legal standards presented in this amicus (Section V).

II. Background on Human Rights Watch and Our Interest on the Case

Over the past years, Human Rights Watch has published multiple reports on the devastating effects of environmental crises and the inadequate regulation and oversight of environmentally destructive sectors of the economy.[1] Impoverished and marginalized communities are disproportionately impacted, facing barriers to access environmental information and meaningfully participate in decision-making on environmental issues, as well as facing barriers to obtain redress for violations of their right to a healthy environment—key aspects that the Escazú Agreement seeks to address.

Human Rights Watch has also documented intimidation, judicial harassment, and deadly violence against activists and ordinary citizens defending their rights to land and the environment,[2] including in Colombia, where more than 230 Indigenous, Afro-descendant, and peasant leaders have been killed since 2020, according to the Human Rights Ombudsperson’s Office.[3] Our 2021 report, Left Undefended: Killings of Rights Defenders in Colombia’s Remote Communities, identifies the dynamics behind the killings of human rights and environmental defenders in Colombia and shortcomings in preventing such killings or holding those responsible to account. [4]   

III. The Escazú Agreement

The Escazú Agreement is designed to protect biodiversity and environmental defenders in Latin America and the Caribbean. The treaty, formally called “Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean,” was adopted in the Costa Rican city of Escazú on March 4, 2018.[5]

As of August 2023, 15 countries have ratified the Escazú Agreement: Antigua and Barbuda, Argentina, Belize, Bolivia, Chile, Ecuador, Grenada, Guyana, Mexico, Nicaragua, Panama, Saint Vincent and the Grenadines, Saint Kitts & Nevis, Saint Lucia, and Uruguay.[6] The treaty entered into force on April 22, 2021, when the conditions established in article 22 were met.[7]

The treaty guarantees people’s right to obtain environmental information and to participate in decision-making that affects their lives and environment. It requires countries to ensure access to justice when those rights are violated and to establish systems to prevent environmental harm or provide redress. It also requires governments to provide safe and enabling conditions for the defenders and to ensure that those responsible for violence and intimidation against them are investigated and prosecuted.

IV. Applicable International Law and Standards

1.  The Right to Healthy Environment

The Escazú Agreement establishes States’ obligation to guarantee every person’s right to live in a healthy environment.[8] This provision is consistent with human rights standards and jurisprudence established by UN and Inter-American bodies.

In the Inter-American Human Rights System, the Protocol of San Salvador, which Colombia has ratified, establishes in its article 11 that “everyone shall have the right to live in a healthy environment.”[9] Additionally, the Inter-American Court of Human Rights repeatedly ruled, including in an Advisory Opinion requested by Colombia, that the right to a healthy environment is protected under article 26 of the American Convention on Human Rights.[10]

In 2021, the UN Human Rights Council adopted resolution 48/13, which “recognize[d] the right to a clean, healthy and sustainable environment as a human right that is important for the enjoyment of human rights.” A year later, the UN General Assembly passed resolution 76/300 with 161 votes in favor, including Colombia’s, recognizing “the right to a clean, healthy and sustainable environment as a human right.”[11]

2. The Right to Access Environmental Information

Article 5 of the Escazú Agreement establishes the state’s obligation to ensure the public’s access to environmental information, including the right to request information without having to mention a special interest or explaining the reason, as well as the principle of “maximum disclosure.”[12] State parties to the agreement have the obligation to grant access to already existing environmental information when requested, to generate new one information, and to disseminate the existing one, including reports of the state of the environment, a list of polluted areas, or information on environmental impact assessment processes.[13]

Article 5 builds on the right of access to information, which holds an important place under international human rights law. Article 13 paragraph 1 of the American Convention on Human Rights expressly stipulates the right “to seek, receive, and impart information.”[14] The International Covenant on Civil and Political Rights (ICCPR), to which Colombia is party, has a similar provision in article 19 paragraph 2.[15]

The Organization of American States (OAS) Special Rapporteur for Freedom of Expression said in her 2009 report that the right to access information “is a manifestation of th[e] freedom [of expression] that is particularly important for the consolidation, functioning and preservation of democratic systems of government.”[16] Similarly, the Inter-American Court of Human Rights has highlighted that “the delivery of information to an individual can, in turn, permit it to circulate in society, so that the latter can become acquainted with it, have access to it, and assess it.”[17] The UN Human Rights Committee, which provides authoritative interpretation of the ICCPR, stated in its General Comment No. 34 that in order to “give effect to the right of access to information, States parties should pro-actively put in the public domain government information of public interest,” and ensure access is easy, prompt, effective, and practical.[18]

International human rights law includes specifics obligations regarding access to environmental information. The Inter-American Court of Human Rights held in an advisory opinion, which Colombia requested, that “access to information on activities and projects that could have an impact on the environment is a matter of evident public interest.”[19]

Principle 10 of the Rio Declaration on Environment and Development, adopted by states at the UN Conference on Environment and Development in 1992, establishes the right of every individual to access information “concerning the environment that is held by public authorities” and calls on States to make information widely available.[20]

The Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment noted in a 2019 report that access to information, “widely recognized” as a human right, “is essential for people to be able to protect and defend their human rights from potentially harmful environmental impact.”[21] The report included, as examples of good practices around the globe, several pieces of legislation, information systems, and websites with comprehensive information regarding the access to environmental information.[22]

Largely in line with the American Convention on Human Rights, [23] the Escazú Agreement provides specific exceptions to the right to access information, including those established under States’ domestic law,[24] and, in the absence of relevant domestic law, those based on credible evidence that granting the information would put people at risk, affect national security, the protection of the environment, or harm the application of the law.

The Escazú Agreement also establishes, in article 5, the creation of independent oversight mechanism to oversee, monitor, and report on how the right to access environmental information is being guaranteed.

3. The Right to Public Participation in the Environmental Decision-Making Process

The Escazú Agreement stipulates the right of public participation in decision-making processes regarding projects or activities that have or may have a significant impact on the environment, including land-use planning, policies, strategies, and plans.[25]

Under the Escazú Agreement, the public should be allowed to participate from the very early stages of each project and have the opportunity to present observations, which authorities should give due consideration to. Information regarding the area of the proposed project or activity, a description of its main environmental impacts, on the measures the State foresees to implement, among others, should be made available to the public in order to fully exercise their right to participate.

Under the international legal framework, the right to public participation derives from the right to “take part in public affairs,” which the American Convention on Human Rights establishes in article 23 (1)(a) and the ICCPR sets forth in article 25(a).[26]

The right of public participation is closely connected to the right to access public information. Without due information, the conditions for citizens' participation may not be met. The Inter-American Court of Human Rights has said that “State’s actions should be governed by the principles of disclosure and transparency in public administration that enable all persons subject to its jurisdiction to exercise the democratic control of those actions, and so that they can question, investigate and consider whether public functions are being performed adequately.”[27]

In its Advisory Opinion OC-23/17, the Inter-American Court of Human Rights specifically included environmental matters in the right to participation as derived from the right to take part in public affairs.[28] The Court noted that “participation is a mechanism for integrating public concerns and knowledge into public policy decisions affecting the environment,” which “makes Governments better able to respond promptly to public concerns and demands, build consensus, and secure increased acceptance of and compliance with environmental decisions.”[29]

Similarly, the Rio Declaration on Environment and Development calls on States to ensure that individuals have “the opportunity to participate in decision-making processes.” It notes that “environmental issues are best handled with the participation of all concerned citizens, at the relevant level.”[30]

4. The Right to Access Justice in Connection to Environmental Matters

Access to justice is a “basic principle of the rule of law.”[31] The American Convention on Human Rights and the ICCPR enshrine the right to a judicial recourse against acts that violate rights.[32]

The Escazú Agreement establishes States’ obligation to make judicial and administrative mechanisms available so that people can challenge and appeal any decision, act, or omission that affects, or could affect, the environment or that violates an environmental regulation, or that denies access to information or public participation.[33] In order to make access to justice effective, States should minimize or eliminate any barriers, publicize the available mechanisms, and disseminate the relevant decisions. The agreement also requires States to establish and maintain government bodies with expertise on environmental matters, to ensure broad provisions on the legal standing to defend the environment, to implement measures to facilitate the production of evidence on environmental damage, and to allow for the possibility of ordering precautionary measures to halt environmental damage.

In its Opinion OC-23/17, the Inter-American Court of Human Rights established that States should ensure access to justice and relevant remedies against “any provision, decision, act or omission of the public authorities that violates or could violate obligations under environmental law; to ensure the full realization of the other procedural rights (that is, the right of access to information and to public participation), and to redress any violation of their rights as a result of failure to comply with obligations under environmental law.”[34]

Additionally, Principle 10 of the Rio Declaration on Environment and Development establishes that “effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.”[35]

5. The Obligation to Protect Human Rights and Environmental Defenders

The Escazú Agreement is the world’s first legally binding instrument containing specific provisions on environmental defenders. It requires States to provide safe and enabling conditions for defenders and ensure that those responsible for violence and intimidation against them are investigated and prosecuted.[36]

Under the American Convention on Human Rights and the ICCPR, states are obligated to effectively protect the rights to life, physical integrity and liberty, including by taking adequate preventive measures to protect individuals from reasonably foreseeable threats to their lives from non-state actors, including criminals, organized crime, and armed groups.[37]

Governments are also obligated to ensure effective remedies for victims of violations of human rights.[38] This includes effectively, promptly, thoroughly, and impartially investigating violations and holding those responsible abuses to account as well as ensuring access to justice and reparations for the victims.[39]

While states’ obligations apply to all people within their jurisdiction, the Inter-American Court of Human Rights has recognized increased duties to protect the life and personal integrity of human rights and environmental defenders and ensure their ability to do their work, particularly taking into account their heightened vulnerability as a result of their work.[40]

In Kawas Fernández v. Honduras, a case concerning violence against environmental human rights defenders, the Inter-American Court of Human Rights said that “States have the duty to provide the necessary means for human rights defenders to conduct their activities freely; to protect them when they are subject to threats in order to ward off any attempt on their life or safety; to refrain from placing restrictions that would hinder the performance of their work, and to conduct serious and effective investigations of any violations against them, thus preventing impunity.”[41]

Similarly, the Special Rapporteur on the situation of human rights defenders has called on States to “reaffirm and recognize the role of environmental human rights defenders and respect, protect and fulfil their rights” as well as “ensure a preventive approach to the security of environmental human rights defenders by guaranteeing their meaningful participation in decision-making and by developing laws, policies, contracts and assessments by States and businesses.”[42] The Rapporteur highlighted the “unprecedented” risks faced by environmental human rights defenders, referring to the growing number of attacks and killings of environmental defenders.[43] 

V. Petition

For the abovementioned reasons, we respectfully request this Honorable Court to: 

1. Accept Human Rights Watch as a Friend of the Court in this case; and
2. Consider the arguments and international standards presented in this brief when evaluating the constitutionality of Law 2273.