With the climate crisis intensifying, the struggle to defend the environment in Latin America and the Caribbean has only evolved. However, at the same time, respect for the human rights of environmental activists in the region seems to have diminished. To address this challenge, the Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean, better known as the Escazú Agreement, was created.
This regional treaty is an instrument to promote transparency, compliance with access to environmental information, citizen participation in important environmental decisions, and access to justice. It aims to guarantee human rights of environmental activists, as well as to oblige states to facilitate tools so that they can be heard before the corresponding judicial bodies.
In the first stage of the agreement, 24 out of 33 Latin American and Caribbean nations signed, and it currently has 15 states as parties. Grenada, Belize and Chile were the last countries to join the treaty, and Costa Rica and Dominican Republic closed the ratification debate. Worse still, the Bahamas, Barbados, Cuba, El Salvador, Honduras, Suriname, Trinidad and Tobago and Venezuela did not participate in this agreement.
Constitutional Court’s Escazú arguments
Three months before the second extraordinary meeting of the Conference of the Parties (COP2) in Buenos Aires, Argentina, the Dominican Constitutional Court (TC) declared the treaty “not in accordance with the Constitution“. This COP2 event was important for the Escazú Agreement – the first members of the Implementation and Compliance Support Committee of the Escazú Agreement were to be chosen. Through this process, seven members from 10 candidates of different nations were to be chosen who will serve in their personal capacity, detached from the executive, legislative and judicial branches of government.
The supreme organ sustains the sentence TC/0076/23 in article three of the Constitution on the inviolability of sovereignty and the principle of non-intervention; article 49.1 consisting of freedom of expression and information, and article 110 which deals with the non-retroactivity of the law or legal certainty.
“Apart from what has been explained, this Constitutional Court emphasizes that several aspects of the analyzed agreement do not generate novelty for the Dominican legal system in the matter, since, in relation to access to justice to seek public information, there are administrative mechanisms and constitutional guarantees such as the action of amparo that can be used to safeguard the right to free access to public information. In addition, there is the National Environmental and Natural Resources Management System, created by the aforementioned Law No. 64-00 (…)”, argues the Constitutional Court in its decision.
The ruling issued on January 25, 2023, passed without much fanfare, due to the fact that there was almost no coverage in the main Dominican media. So much so that a week later, Listín Diario digital published a note on the sentence, and 15 days later, the digital portal Ciudad Oriental published information on the rejection of the Institute of Lawyers for the Protection of the Environment (INSAPROMA). Its director, Euren Cuevas, understands that the sentence of the Supreme Court was sustained “on the basis of false arguments”.
For Cuevas, Dominican laws are very clear, therefore, he deplores that the Constitutional Court wields its sentence in articles 26 and 49 of the Magna Carta on international relations and international law, and freedom of expression and information, respectively. “It is absurd, it is outlandish, this sentence of the Constitutional Court is shameful in light of international law, and in light of the fact that this court is the guarantor of constitutional rights and the fundamental rights of the citizen,” he emphasizes.
Cuevas points out that the Dominican Republic is a country that belongs to the international community through the United Nations Organization (UN), Organization of American States (OAS). The country has also signed international agreements, which establish that if there is a controversy on a point of the treaty, there is an alternative solution such as arbitration.
“In this sentence the Constitutional Court has said that sovereignty would be violated. It says that the country’s sovereignty would be put at risk because the Escazú Agreement establishes that in matters of any controversy, it would have to be submitted to an impartial third party, or arbitration, which can be the International Court of Justice, but that is what all the agreements say,” explains the director of INSAPROMA.
Yolanda León, biologist and director of Grupo Jaragua, considers that the main violator of environmental laws is the government itself, not only in its own works, she clarifies, but also because the companies, in most cases, obtain the permits they need (even if they are not appropriate) from government officials. In other cases, she points out, it is the government that decides not to look or to impose an insignificant sanction.
Are there alternatives?
The Constitution establishes that the decisions of the Constitutional Court are not subject to appeal and that they are erga omne. This means that they must be mandatorily complied with and are imposed on the executive, legislative and judicial branches. But despite this, attorney Cuevas says that there would be an alternative in the International Court. “We are evaluating the possibility of submitting to an International Court, either the Inter-American Court of Human Rights or the International Court of Justice, to take the sentence of the Constitutional Court. It is ignoring the fundamental rights of the people, the access to public environmental information and to justice, public participation in decision making and the fundamental rights or human rights,” he points out.
He also comments that they are discussing whether it is legally feasible to request the next elections to have an additional ballot for those who want the Escazú Agreement to be ratified or not. “It is like a kind of plebiscite or referendum of the people, to submit that matter to the sovereignty of the people, but it is not yet certain,” emphasizes Cuevas.
The lawyer explains that they have formally requested the Constitutional Court for the dissenting vote or the observed votes of the judgment, which should have been included in the judicial file or published five days after the judgment. However, when consulted for this article, the Constitutional Court clarifies that if the judgment does not have the dissenting or observed votes integrated, it is because there were none.
Is freedom of expression real?
The Constitutional Court also based its decision on Article 49 of the Constitution, which states that the Dominican Republic enjoys freedom of expression and information. But from theory to reality, how effective has it been?
In this regard, according to the experience of environmentalist León, “there is a relative freedom of expression. I say this because I know of several radio and television programs that have been shut down when they have criticized the government of the day. Personally, when I have denounced environmental issues, the main cost has been a certain hostility from the authorities. When we began to criticize their management, a former Minister of the Environment began to withhold the government subsidy to the NGO with which I collaborate (but in the end they did not reimburse everything)”, he says.
What about access to information?
The director of INSAPROMA describes access to information and public participation as limited. “You go to look for an environmental impact study, and they don’t give it to you because they say it is private, but the General Law of Free Access to Public Information, No. 200-04, and Law 64-00 – Ministry of the Environment and Natural Resources in its articles 49 to 52 establish that the information must be delivered,” he argues. As for access to justice, although it is permitted to appear before a competent body, he calls the results pyrrhic.
Likewise, the director of Grupo Jaragua recognizes the need to facilitate access to environmental information, especially environmental impact studies, permits and terms of reference. In theory, says León, requests can currently be made through the Access to Information Law, but the system is slow and, according to her experience, she has received few responses.
“The ESIAs have told me that they only let me see them during the consultation period in the ministry’s offices – they cannot be taken out or photocopied-. Other times they tell us that it is information from a private company and cannot be shared, or they ask me for the internal code of a project – which one does not know – in order to find the information. If the Escazú treaty obliged the authorities to improve this access, it would be an important achievement because the attitude is currently very closed,” explains the defender of environmental rights in the Dominican Republic.
On the other hand, the Constitutional Court expresses in its judgment that “when referring to the interpretation or application of the Escazú agreement, it must be understood that if the State denies information, it would have to submit to an international body that, by issuing a ruling unfavorable to the Dominican State, could order it to deliver reserved, secret or confidential information. In other words, the State would be forced to disregard its domestic law and disregard the binding precedents of this constitutional venue in order to comply with a mandate that is internally prohibited”.
What do the authorities say about the Escazú Agreement?
The executive vice-president of the National Council for Climate Change and Clean Development Mechanism, Max Puig, had ruled out that the Constitutional Court would reject the Escazú Agreement. In his opinion, the treaty is consistent with the Constitution, according to a press release of this institution, published in August 2021.
Another who was hopeful of the success of the agreement was the Vice-Minister of International Cooperation of the Ministry of Environment and Natural Resources, Milagros De Camps. According to her, they managed the procedures required for the treaty to be ratified. “When we arrived it was here. In the first week, the first thing we did was to send it to Cancillería [Ministry of Foreign Affairs] to make the evaluation and send it to the Presidency. Then it was sent by the Presidency to the Constitutional Tribunal,” explained De Camps to a national media.
In order to have an updated government statement, the National Council for Climate Change and Clean Development Mechanism, the Ministries of Environment and Foreign Affairs and the Constitutional Court were consulted, but the requests had not yet been answered at the time of going to press. This is evidence of the lack of closeness of public servants with society, and the need to improve the system of access to information.
This story was originally published by Listin Diario, with the support of the Caribbean Climate Justice Journalism Fellowship, which is a joint venture between Climate Tracker and Open Society Foundations.