In 2019, two-thirds of worldwide environmental defenders killings took place in Latin America. This trend is not novel. In this last decade, communities that defend ecosystems and rich biodiversity hotspots in Latin America have been consistently the worst-affected worldwide: at least two thousand victimizing events against men and women and two hundred against organizations defending the environment and the land were recorded. Ethnic minorities suffer the worst consequences of large-scale development projects, particularly agribusiness or activities associated with extractive industries like oil and gas. In this context, the Escazú Agreement is a decisive step towards protecting human rights defenders in environmental matters. It is the first treaty in the world that aims to protect environmental defenders from threats and repression, and includes provisions related to access to information, public participation, and access to justice. In response to it, however, the business community in Latin America is feeling threatened by the Escazú Agreement and has actively lobbied against it. This blog post explores the long and bumpy road that Escazú has had in Colombia.
This blog post presents the threats that environmental defenders in Latin America are facing and explains how the Escazú Agreement - the first binding regional environmental treaty for Latin America and the Caribbean - aims to protect them. It then describes why corporations are feeling threatened by it and, in countries like Colombia, are lobbying against it.
The Issue
7 out of the 10 the most hostile countries for land and environmental defenders are located in Latin America. Colombia is the first one on the list. In 2020, 53% of murders of human rights defenders worldwide occurred in Colombia, making it the deadliest country for activism and the second most dangerous country in the world for defenders raising concerns about business conduct. This growing tide of violence is partly linked to the challenges of implementing the 2016 Peace Agreement. Since its signature, more than 400 human rights defenders have been killed in Colombia. The shifts in local power dynamics after the conflict, as well as the implementation of the land reform and illegal crop substitution programs have triggered violence against environmental defenders. Despite the measures envisaged in the Peace Agreement to prevent these killings, Colombia’s President Ivan Duque does not periodically convene the National Commission for Security Guarantees, a body in charge of designing policies to prevent the murders of human rights defenders.
Violence against environmental defenders in the region is connected to a significant contextual backdrop of business conduct. Journalistic projects documenting episodes of violence against environmental leaders and their communities have found that agribusiness, logging, mining, and infrastructure are the main sectors around which activists have raised concerns in the last decade. 90% of attacks in Colombia were against defenders speaking out against four industries: mining, fossil fuels, agriculture, and hydroelectric plants and dams. Most attacks were against defenders who raised concerns about five companies in particular, including Cerrejón, a mining company jointly owned by BHP, Anglo American and Glencore (see our blog on how Cerrejón has managed to get away with impunity).
The Agreement
This context makes ratifying the Escazú Agreement a decisive step to defend the lives and rights of environmental defenders. The treaty establishes groundbreaking provisions that oblige State parties to set up safeguards to prevent, investigate and punish attacks, threats, and intimidations that environmental leaders endure. It introduces a broad range of measures to (i) effectively implement the right to access environmental information and establishes specific duties for the authorities to provide that information; (ii) strengthen public participation in the environmental decision-making process, and (iii) improve access to justice on environmental issues. To achieve these goals, State parties are encouraged to request environmental information from corporations and put in place alternative dispute resolution mechanisms.
Ratifying the Escazú Agreement is the beginning of a commitment between civil society, corporations and State parties. Anita Ramasastry, Chair of the UN Working Group on Business and Human Rights, considered Escazú a "catalyst for sustainable development and responsible business conduct" in Latin America. By signing the treaty, 24 states have recognized the importance of this tool to strengthen transparency, build common ground among different actors, and prevent socio-environmental conflicts. However, only 12 states have ratified the agreement which means it meets the required conditions to enter into force in April 2021. But much more needs to be done. Some of the countries where it is most dangerous to be an environmental defender, including Colombia, Brazil and Guatemala, have yet to ratify the treaty, and Venezuela has not even signed it. Honduras has not ratified Escazú despite the explosive growth in environmentally destructive projects like the Agua Zarca Dam --the project against which indigenous leader Berta Cáceres was campaigning when she was killed in 2016.
As a tool designed to deal with environmental conflicts, Escazú represents a massive opportunity for Brazil and Colombia to enhance environmental democracy. Environmental defenders that speak out against businesses are subject to threats every day, including physical attacks, legal harassment, disappearance, forced displacement, stigmatization, and sexual violence. The alarming situation suggests that democratic spaces through which leaders and communities express their environmental views or concerns are being silenced. It is not by accident that Latin American countries with perceived democratic deficit coincides with the highest numbers of attacks against environmental defenders. In these circumstances, authorities cannot afford to reject this agreement. However, the countdown to ratify it has already started, and both countries’ political landscape is not very encouraging. While the Colombian government seems to be more interested in tampering with the numbers of social leaders’ killings than to protect environmental defenders, the Brazilian ratification is stuck in a back and forth between the government and the parliament.
Why are Companies Feeling Threatened?
In many countries of Latin America, environmental legislation is used to protect corporate interests at the expense of communities and activists. In Perú, for instance, unarmed indigenous protesters were killed while protesting against a government's deal with foreign companies to open the Peruvian rainforest. This scene is typical across Latin America. In a perverse impunity cycle, defenders are killed for protesting against environmentally harmful corporate projects, and state authorities fail to successfully control the situation, leaving corporations unaccountable for their role in the dispute. This is precisely the kind of conduct that Escazú aims to tackle by focusing on the source of abuse (environmental harm) and on the need to protect those who oppose it (environmental defenders). But, even if Escazú is a tool that follows the UN Guiding Principles on Business and Human Rights regarding companies' obligations to respect human rights in the context of their activities, some sectors of the industry are feeling threatened by it. Companies across Latin America feel that their economic interests will be harmed. They seem comfortable with a status quo that minimizes their costs around environmental standards and transfers these costs to the communities around them.
Escazú will indirectly influence corporate conduct because, in a chain reaction, it requires State parties to hold corporations to certain standards. Article 6.13, for example, provides that each signatory party should “encourage public and private companies, particularly large companies, to prepare sustainability reports that reflect their social and environmental performance.” But, while companies in the region may embrace voluntary initiatives to protect human rights, many oppose the signature of the Escazú Agreement, which would require States to more actively prevent threats -both from governments and private companies - against environmental defenders. Although there is no guarantee that its implementation will be easy or even successful, Latin America is in urgent need of new tools to protect environmental leaders.
Escazú’s Trajectory in Colombia
The business community and President Duque’s party have opposed Escazú’s ratification in Colombian Congress. Although Duque himself signed the agreement in 2019 (a move that surprised both supporters and detractors), the first of three congressional debates was postponed four times. The business community has lobbied strongly so that the President’s party - the Centro Democrático - opposes the treaty. Although Escazú is supported by hundreds of environmentalists, academics, ethnic groups, farmers and more than 150 organizations, the Centro Democrático alleges that Colombia does not need the ratification of this treaty because the country already has enough mechanisms for participation and protection of the environment and because it will bring development projects to a halt. “Escazú will establish limitations in the projects that generate employment and social development that are necessary for the progress of the country,” a letter from business representatives to President Duque states. Cattle, oil, and banana trade associations see environmental justice as a threat and believe that Colombia should decide, “without international pressure”, the due balance between environment and development.
But “environment and development” have been anything but balanced in Colombia. It is well documented that social instability and land disputes have benefitted some corporations in Colombia. Past exploitation of the environment has been the cause of human and non-human animal displacement. Both legal and illegal mining have caused exceptional harm to the environment, and corporations are free to leave when things get complicated or the market is not friendly to the company. The environmental consequences of mining have been so vast that the Constitutional Court, in a landmark ruling, granted personhood to the Amazon and the Atrato River and bound the State to implement “protection, conservation, maintenance and restoration” of the river and its communities.
Corporations have a role to play here. Until now, corporate actions in favor of human rights have been voluntary and often do not go beyond corporate social responsibility. This is the status quo that businesses wish to maintain by lobbying against Escazú. In Colombia, it is problematic enough that corporate actors that benefited from, exacerbated, or contributed to the armed conflict are not required to be part of the transitional justice process (instead, as we explained in a previous blog post, they can voluntarily accept the JEP’s jurisdiction). Although Escazú does not solve the lack of accountability of corporations that funded or benefited from the conflict, it is a good way to deter corporate abuse moving forward. Escazú could bring the government, companies and civil society to the same table. Its mechanisms could help reduce the uncertainty and insecurity in which social leaders in Colombia live today. Companies in the region --and this includes multinational corporations-- now have the opportunity to promote an agenda for development that does not ignore the rights of environmental defenders.
Isabella Ariza is a Legal Fellow at Corporate Accountability Lab and Luisa Gomez Betancur is a member of CAL’s Brain Trust.
