{"id":14528,"date":"2021-06-21T08:00:33","date_gmt":"2021-06-21T06:00:33","guid":{"rendered":"https:\/\/voelkerrechtsblog.org\/?p=14528"},"modified":"2021-06-22T09:52:28","modified_gmt":"2021-06-22T07:52:28","slug":"extinguishing-the-flares-of-death","status":"publish","type":"post","link":"https:\/\/voelkerrechtsblog.org\/de\/extinguishing-the-flares-of-death\/","title":{"rendered":"Extinguishing the Flares of Death"},"content":{"rendered":"

At 400 \u00b0C, around 447 gas flares, known as \u2018flares of death,\u2019 are constantly burning in the heart of the Ecuadorian Amazon. This is a long-standing practice by which the oil industry burns the byproducts of their oil extraction activities. Reports<\/u><\/a> have confirmed that flaring results in highly pollutant gases like methane, which \u201cerupt as a giant flame from a vertical gas pipe just meters from an oil well head.\u201d\u00a0Aside from constituting an environmentally detrimental practice, gas flaring is most likely responsible for the high cancer rates<\/u><\/a> in the area, mainly populated by Indigenous communities. On January 26, 2021, an appeals court in Ecuador ruled<\/u><\/a> in favor of nine children by declaring gas flaring unconstitutional and finding a violation of Ecuador\u2019s international obligations under the Paris Agreement and the\u00a0plaintiffs\u2019\u00a0right to a healthy environment.<\/p>\n

This case is but one among the multiple demands for justice that have been brought forward in the same region in a \u201clegal battle\u201d against Chevron-Texaco following the so-called \u2018Amazon Chernobyl<\/u><\/a>,\u2019 one of the \u201cworst oil-related disasters in the world.\u201d It\u00a0took over 26 years\u00a0of legal struggle and activism for local courts to finally deliver\u00a0an order of cessation and reparation to victims. Practices such as the \u2018flares of death,\u2019\u00a0in addition to encroaching upon individuals\u2019 right to a healthy environment, have serious implications for environmental human rights defenders who protest such actions. It is precisely the protection of victims\u2019 rights and increased access to justice that upcoming developments in international environmental law, namely the Escaz\u00fa Agreement,\u00a0seek to enhance.<\/p>\n

A General Overview of the<\/strong>\u00a0<\/strong>Escaz\u00fa<\/strong> Agreement<\/strong>\u00a0<\/strong><\/p>\n

This April 22, 2021 not only represents International Mother Earth\u2019s Day, but also marks the entry into force of the Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean<\/u><\/a> (the Escaz\u00fa Agreement). Alongside the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters<\/u><\/a> (the Aarhus Convention), which entered into force in October 30, 2001, the Escaz\u00fa Agreement is the second regional instrument aimed at implementing Principle 10 of the Rio Declaration on Environment and Development<\/u><\/a>. Principle 10 of the Rio Declaration establishes three pillars: access to information, public participation in decision-making processes, and access to justice in relation to environmental matters.<\/p>\n

The Escaz\u00fa Agreement has been applauded<\/u><\/a> for introducing innovative features into the current international environmental law regime including the right to a healthy environment, an explicit recognition of the principle of non-regression and progressive realization, the protection of environmental human rights defenders, extended legal protections for persons and groups in vulnerable situations and provisions on capacity-building. Under Article 8, concerning justice on environmental matters, the Agreement explicitly references the precautionary principle and\u00a0the provision of interim measures to mitigate damage to the environment.<\/p>\n

Conversely, the Agreement has been criticized<\/u><\/a>\u00a0for its potential incongruence with internationally accepted norms of non-discrimination as Article 3 limits its application to a state\u2019s national jurisdiction. In other words, individuals do not reserve the right to be informed about potentially environmentally harmful activities that take place abroad, but whose effects are felt beyond that state\u2019s borders. Notwithstanding these concerns, this entry engages with two novel features of the agreement: the right to a healthy environment and the protection of environmental human rights defenders in relation to the continuous environmental challenges faced by Indigenous peoples and future generations.<\/p>\n

A Novel Link: <\/strong>Right to a Healthy Environment and Sustainable Development <\/strong><\/p>\n

The first article of the Agreement describes its objective in relation to the three pillars of Principle 10 of the Rio Declaration, and specifies the protection of the right <\/em>of every person of present and future generations<\/em>\u00a0to live in a healthy environment and to sus<\/em>tainable development<\/em>. Unlike previous environmental treaties, the Escaz\u00fa Agreement provides not only a legally binding right to a healthy environment for both present and future generations, but also a endorses the right to sustainable development\u00a0guided by such recognition of the principle of intergenerational equity.\u00a0Intergenerational equity is also enshrined in Principle 3 of the Rio Declaration. With the detrimental environmental effects of climate change presenting a disproportionate burden to children and future generations, the principle of intergenerational equity is essential for ensuring the effective realization of their rights.<\/p>\n

Furthermore, the Escaz\u00fa Agreement guarantees the right to a healthy environment within its general provisions in Article 4(1). As an independent substantive right, it provides an important legal basis to complement the recent Advisory Opinion<\/u><\/a> on Environment and Human Rights delivered by the Inter-American Court of Human Rights (IACtHR) whereby the Court affirmed the states\u2019 positive duty to prevent transboundary environmental harm as an extension of their exercise of jurisdiction for the purposes of Article 1 of the American Convention of Human Rights.<\/u><\/a> This duty is based on a state exercising control over activities that may cause harm and violate human rights rather than exercising jurisdiction over individuals suffering from the injury. As the only regional body to have received individual complaints on human rights violations resulting from climate change, the Escaz\u00fa Agreement will provide a significant legal basis to further develop jurisprudence on the intersection between human rights and the environment.<\/p>\n

Protection of Environmental Human Rights Defenders <\/strong>as a Groundbreaking Feature <\/strong><\/p>\n

The Escaz\u00fa Agreement is the first environmental treaty in the region and the first in the world to contain specific provisions on human rights defenders in environmental matters. The UN Special Rapporteur on the Situation of Human Rights Defenders defines<\/u><\/a> environmental human rights defenders as \u201cindividuals and groups who, in their personal or professional\u00a0capacity and in a peaceful manner, strive to protect and promote human rights\u00a0relating to the environment, including water, air, land, flora and fauna.\u201d In the same report, the Rapporteur acknowledges that in many cases, it is \u201cindigenous leaders or community members who defend their traditional lands against the harms of large-scale projects.\u201d<\/p>\n

While the state\u2019s duty to protect the life of human rights defenders can be derived from international human rights instruments like the International Covenant on Civil and Political Rights and the right to participation from the Indigenous and Tribal Peoples Convention of the International Labor Organization, the Escaz\u00fa Agreement is the first legally binding instrument to explicitly impose positive obligations on states parties. This unprecedented provision is found in Article 9 of the Agreement, which is divided into three paragraphs describing the state\u2019s duty to \u201cguarantee a safe and enabling environment\u201d for environmental human rights defenders, to take \u201cadequate and effective measure to recognize, protect and promote\u201d their rights, and to \u201cprevent, investigate and punish attacks, threats or intimidations\u201d against them.<\/p>\n

Article 9 is of particular regional importance due to the vulnerability of environmental human rights defenders to violent attacks. The Special Rapporteur emphasizes<\/u><\/a> that Latin America is the most hostile region for environmental human rights defenders as the majority of assassinations occurs here; likewise, in almost every affected Latin American country both government and corporate actors have been involved in such murder incidents. Particularly, advocacy against extractive industries appears to place defenders at a higher risk, which coupled with a lack of adequate state protection results in impunity.<\/p>\n

The Agreement extends its legal protection through norms related to vulnerability, another innovative feature within international environmental law. In Article 5(4) concerning access to environmental information, the Agreement provides that parties shall guarantee this right to persons in vulnerable situations, including indigenous peoples<\/em>. As identified elsewhere<\/u><\/a>, the role of Indigenous people is not extensively explored in other areas of the Agreement aside the vulnerability context while relevant connections can be made with regards to,\u00a0for instance, Article 7 on public participation in the environmental decision-making process.<\/p>\n

Likewise, I believe the Agreement missed out on an opportunity to explicitly recognize the role played by Indigenous peoples as environmental human rights defenders and provide a legal mechanism to further the enforcement of their protection. In 2018, the Special Rapporteur on Indigenous Peoples already expressed grave concerns<\/u><\/a> for the increased violent attacks and threats against Indigenous people, mainly occurring against the background of projects like those involving extractive industries. Unfortunately, such attacks have <\/u>increased<\/u><\/a> resulting in further marginalization of Indigenous communities. The Escaz\u00fa Agreement, as a regional treaty encompassing procedural environmental human rights could have provided a legal tool for the explicit protection of Indigenous peoples in light of their heightened exposure to the risk of being violently attacked when defending environmental human rights.<\/p>\n

High Hopes for the Entry <\/strong>i<\/strong>nto Force of the Agreement <\/strong><\/p>\n

The Escaz\u00fa\u00a0Agreement, while providing a common framework,\u00a0allows for a wide margin of discretion to enable states parties to decide on the effective implementation\u00a0of the rights it guarantees through their domestic legislation, thus, its tangible impacts remain to be seen. Nevertheless, the Agreement\u2019s entry into force should be championed for its innovative features: the recognition of a right to a healthy environment and sustainable development and the protections awarded to environmental human rights defenders.<\/p>\n

By March 6, 2021, only 7 flares<\/u><\/a> had been extinguished in the Ecuadorian Amazon, leaving over 400 flares of death burning and exposing the Amazon and its inhabitants to severe consequences. While a ruling in favor of the applicants was pronounced, justice and remediation are still pending.\u00a0 The Agreement, as an international, legally binding instrument\u00a0will expectantly facilitate access to information, enhance public participation in decision-making processes, and secure access to justice and effective remedies particularly for those who have experienced difficulties in the past in securing their rights, like the nine Ecuadorian children\u00a0fighting\u00a0for the \u2018flares of death\u2019 to be extinguished.<\/p>\n

 <\/p>\n

This paper is the winner of the Environmental Law Writing Competition organized by <\/em>E&U For The Climate<\/em><\/u><\/a>,\u00a0<\/em>ASA International Law<\/em><\/u><\/a>\u00a0and\u00a0<\/em>EU-reka Study Association for European Law<\/em><\/u><\/a>.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

At 400 \u00b0C, around 447 gas flares, known as \u2018flares of death,\u2019 are constantly burning in the heart of the Ecuadorian Amazon. This is a long-standing practice by which the oil industry burns the byproducts of their oil extraction activities. Reports have confirmed that flaring results in highly pollutant gases like methane, which \u201cerupt as […]<\/p>\n","protected":false},"author":15,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[6639],"tags":[],"authors":[6833],"article-categories":[6000],"doi":[],"class_list":["post-14528","post","type-post","status-publish","format-standard","hentry","category-uncategorized","authors-dorothy-puga","article-categories-article"],"acf":{"subline":"How the Escaz\u00fa Agreement May Enhance Rights Protection and Access to Justice"},"meta_box":{"doi":"10.17176\/20210621-192851-0"},"_links":{"self":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/14528","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/users\/15"}],"replies":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/comments?post=14528"}],"version-history":[{"count":1,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/14528\/revisions"}],"predecessor-version":[{"id":14531,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/14528\/revisions\/14531"}],"wp:attachment":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/media?parent=14528"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/categories?post=14528"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/tags?post=14528"},{"taxonomy":"authors","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/authors?post=14528"},{"taxonomy":"article-categories","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/article-categories?post=14528"},{"taxonomy":"doi","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/doi?post=14528"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}