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In a 12-page document, the government finished settling its position: it will not sign the Escazú Agreement, the first pact in Latin America that seeks to provide guarantees for access to information, citizen participation and justice in environmental matters.
In writing, to which he agreed Third, the Foreign Relations and Environment portfolios offer a series of arguments for not adhering to the pact despite the criticisms from different sectors of the opposition and civil society that they see in the treaty – promoted by Chile during the first government of Sebastián Piñera – the possibility of improving current environmental and human rights legislation.
The document –which was expected to be read by Foreign Minister Andrés Allamand in the RR.EE committee. of the Chamber of Deputies this afternoon– points out that “in light of the analysis carried out, it is appropriate to reaffirm that Chile has environmental legislation that is recognized, nationally and internationally, for its content, scope and consistency. We fully share the great importance of citizen participation, transparency and environmental justice for the advancement of sustainable development. Thus, our country has been a pioneer in incorporating at the legal level the issues raised by the agreement, which includes norms on participation, information and access to justice ”.
Indeed, it is added, “as of the entry of the country into the OECD, Chile modified its legislation on access to information, as well as all its environmental institutions, mainly highlighting the creation of environmental courts in 2012, a jurisdiction specialized in the matter ”.
From a technical point of view, it is indicated in the government’s brief, the treaty contains norms -which according to its literal wording- “could be interpreted as self-executing and another that, despite contemplating referrals to domestic legislation, generate or could generate debate on its application under conventionality control. Indeed, the application of the principles, definitions and general provisions of the agreement, added to its supra-legal nature, opens a serious uncertainty regarding the applicable substantive regulations ”.
For this reason, the government maintains – as the Foreign Minister pointed out two weeks ago – that for the country it is “inconvenient to sign the Escazú Agreement given the ambiguity and breadth of its terms, its eventual self-enforcement and the mandatory nature of its norms that would prevail over internal environmental legislation, all of which will generate a growing judicialization of the environmental procedures and will pose a global picture of serious legal uncertainty. ”
Regarding this, the Executive reiterates that the pact could expose the country to international demands, which they had already manifested over the last two years, since President Sebastián Piñera reported in 2018 that they would not sign the agreement in the first ceremony at the United Nations.
1. The agreement introduces a series of undefined principles that will condition our environmental legislation
The government document indicates that Article 3 of the Escazú treaty establishes a series of principles to guide its implementation. These – it is concluded in the analysis of the Foreign Ministry – would have a higher hierarchy modifying and conditioning the principles that are recognized in the Chilean legal system. As added, Escazú does not define its principles, which generates “uncertainty and an interpretive and application problem that, in a supra-legal treaty, has consequences that are difficult to predict, especially if the definition of principles is going to be specified through future conferences. of States Parties to the agreement.
2. The agreement implies changes in our legislation generating legal uncertainty
According to the analysis, the treaty would generate controversies with the legal definition of the “right to live in a pollution-free environment” that is contained in Article 19 No. 8 of the Constitution. Article 1 of the agreement establishes as its aim “the protection of the right of each person, of present and future generations, to live in a healthy environment.” The concept of healthy, says the Foreign Ministry, is widely discussed internationally which could be interpreted as a different obligation for the State.
On the other hand, it is indicated that the self-enforceability of the agreement and its supra-legal nature will mean relevant changes in the environmental evaluations of projects, thus generating uncertainties, conflicts and legal proceedings related to the regulations to be applied.
In addition, it is argued that there is uncertainty regarding the inclusion of citizen participation in environmental decision-making processes that do not refer to projects or activities, due to the effect of self-execution.
3. The agreement introduces ambiguous, broad and indefinite obligations for the State, which make compliance difficult.
The government points out that the fact that human rights defenders are recognized and protected in environmental matters would have constitutional implications and that this would generate inequality before the law compared to other human rights groups. Regarding this, they add that the country already has various legal figures to provide guarantees to affected people and that what is stipulated in the pact “would require privileged treatment and protection, generating a special status that lacks sufficient grounds, which may lead to discrimination. arbitrary ”.
The same argument is given with respect to articles 4.6 and 9.1 -which indicates that an environment conducive to the work of individuals or groups that promote the protection of the environment will be guaranteed- since, under the analysis of the Executive, this “stresses the mandate of equality before the law ”.
4. The agreement exposes Chile to international controversies due to the direct application of its rules and their ambiguous nature.
It is argued that with this pact Chile could be suing internationals before the International Court of Justice for: a State party to the Bogotá pact in relation to disputes over the interpretation or application of the agreement’s rules in the event that one of the member countries considers that the country has violated the content of the norms of international environmental law upheld in the agreement; and also by a State party to the Pact of Bogotá in relation to controversies over the interpretation or application of the rules of the agreement in exercise of the right to diplomatic protection, in defense of its own nationals who have not obtained compliance in the domestic courts of Chile of the rights provided by the agreement.
At the same time, it is pointed out that Chile could be suing internationally before the Inter-American Human Rights System.
There have been several times in the last two years that the government has addressed its refusal to sign the Escazú Agreement. In recent months, however, the issue has been urged more repeatedly due to the proximity to the initial date established to enforce the agreement: September 26, 2020.
Since Minister Andrés Allamand took office in the Foreign Ministry, he has been consulted on the matter. In the first Foreign Relations commissions of both Chambers, in which he participated with his position, he promised, in fact, to study the subject. This gave rise to the 8th of this month, the Secretary of State announced that until then the government’s position had not changed and that the pact was “inconvenient for Chile.”
After that statement, the director of Public Space and representative of the Public for the Escazú agreement, Andrea Sanhueza, stated that “It seems to me that this speaks of a lack of political will and of covering this lack of will with technical excuses regarding the content of the agreement.”
The issue was addressed yesterday by the German channel Deutsche Welle, which indicated that the Piñera government’s refusal to sign the pact “ends the country’s aspiration for environmental leadership.” In the article they add that “the great contradiction in this whole matter is that Chile, under Piñera’s first term (2010-2014), was the main promoter and negotiator to draw up the Escazú Agreement.”
In a recent podcast by La Tercera, the former Minister of the Environment Marcelo mena He pointed out that after the refusal to subscribe there is a “value issue in which we have differences with some actors and it makes me very sad, because, when one is honest and has no complexes, one must and can face the public (… ) It is essential to legitimize environmental processes and that people feel that activities are not being carried out at the cost of their health, for example. ”In that record, the former minister reported that the pact was shortly after being called the Santiago Agreement by the role that the country had in the negotiation.
Just when the government’s final resolution is known, President Sebastián Piñera participated in the United Nations General Assembly – virtually due to the pandemic – where he addressed the climate emergency.
In the instance, the President indicated that “the human being is, without a doubt, the most intelligent creature that inhabits the planet, but it is also the only creature capable of destroying it. The threat of global warming is real, it is imminent. Science has spoken out loud and clear and citizens demand of us as a moral imperative, a change of course ”.
Without referring to Escazú, he added that “The time for diagnoses is over, the time for action has come” and assured that Chile is “completely committed” to the cause to counteract climate change.
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