For some years now, Chile has positioned itself as a leading light in Latin America on environmental issues. Last year it held the presidency of COP25 climate negotiations, and before that, it promoted the Escazú Agreement – a Latin American and Caribbean regional accord designed to improve access to information and citizen participation on environmental issues and to protect environmental defenders.
The number of countries to which the agreement applies
But the Chilean government has since decided to withold its signature from the agreement. The reasons it gave – including that it would be difficult to implement – have not convinced everyone.
Of the 33 countries to which the agreement applies, 11 have ratified it, the threshold for it to enter into force. Still, the last two countries to do so, Mexico and Argentina, have yet to make the ratification formal at the United Nations.
Last-minute decision in Chile
The two-year window for signing the agreement opened on 27 September 2018 and ended two months ago. Chilean President Sebastián Piñera had repeatedly called on the other countries to say yes to the agreement until the signing officially started, then his government changed its mind.
Piñera attributes the U-turn to a dispute with Bolivia, pending at the International Court of Justice, over a corridor to the coast for the landlocked nation. Signing Escazú would have allowed another possible lawsuit from Bolivia, he argued.
However, various international law experts have rejected the argument, according to Valentina Durán, professor at the University of Chile’s Law School and director of the Environmental Law Centre. But the government stuck by its new decision.
This surprised some, especially given Chile’s leadership role Chile since the creation of the Agreement in 2012 at the UN Conference on Sustainable Development in Rio under Piñera’s first term (2010-2014).
This impetus was in line with Chile’s internal policies, said Gabriela Burdiles, project director of Chilean NGO FIMA.
Changes in local environmental laws together the expansion of renewable energy coincided with the aim of promoting the first broad agreement on environmental issues in the region. The country was one of the few at the time to promote Escazú.
Between 2014 and 2018, Chile led Escazú negotiations with Costa Rica. In addition to being a new kind of agreement for the region, Escazú is important because of the way it was negotiated, says Durán.
“For the first time, civil society was included in an open way. In Chile, there were public consultations between each of the negotiation rounds,” Duran said. In general, at the global level, this type of agreement does not allow for voices of third parties and is negotiated behind closed doors by specialised teams of the countries involved. So it was that the text discussed during the second government of Michelle Bachelet (2014-2018) came to be widely known.
According to Burdiles, Sebastián Piñera had always intended to be a leader in the region on environmental issues, and Escazú was part of that vision. “But later he realised that climate change generates conflicts for some sectors and puts investment at greater risk,” she says.
Durán agrees. “It is possible that there is pressure from some business sectors that still believe, mistakenly, that protecting the environment goes against economic development.”
Internal review of Escazú
In September this year, the Chilean Senate’s Foreign Relations Committee received details of the refusal to sign the Escazú Agreement. There, Foreign Minister Andrés Allamand stated that the government had not changed its mind but that the terms of the agreement were “inconvenient” for Chile.
These inconveniences include the necessity for changes to made to Chilean environmental legislation that would generate legal uncertainty; the ambiguous and difficulty in complying with nature of its obligations and commitments; and the possibility that the country would be taken to international tribunals.
On 22 September, both the foreign minister and the environment minister, Carolina Schmidt, were summoned to the Senate Environment Committee, along with some specialists in the field that included Valentina Durán.
Minister Schmidt gave assurances that the government fully supports each of the foundations and principles underlying the Escazú Agreement. “The problem is the way it was finally drafted, which introduces significant uncertainties that cannot be resolved, as it does not admit of any type of qualification”, she said.
The minister also said the decision not to sign the agreement is that of the government as a whole and not of any particular ministry. She said progress is being considered on signing a treaty on citizen participation, transparency and access to environmental justice “with a greater standard of clarity and certainty than that currently established in Escazú”.
The big difference would be that the new document should provide certainty and clarity to all actors “without exposing the State of Chile to international tribunals due to ambiguities of interpretation in internal conflicts”.
As part of the clarification process, the Ministry of Foreign Affairs, together with the Ministry of the Environment, released a document explaining the decision not to sign the agreement. Escazú would condition Chile’s environmental legislation and introduce ambiguous, broad and undefined obligations for Chile, according to the document.
It is possible that there is pressure from some business sectors that still believe, mistakenly, that protecting the environment goes against economic development
“They warn of a series of risks that are highly questionable, which are more like laboratory hypotheses,” says Valentina Durán. The agreement would not replace the rules of Chilean law as set out in the document, she adds.
“Escazú contemplates gradual progress in the implementation of access to information and the protection of defenders, which should be done within the framework of each nation’s legislation,” she says.
Burdiles agrees that the arguments are debatable. Although she acknowledges that in the original conception of the agreement the point about environmental defenders was not made as strongly as it eventually was, in her opinion the rejection sends the very serious message that they do not deserve protection.
The government’s decision not to sign “the most important agreement of the last 20 years is very difficult to understand”, says Sebastián Benfeld, Escazú’s representative for Chile at the UN’s Economic Commission for Latin America and the Caribbean (ECLAC).
The positive side of Chile's refusal to sign Escazú has been the visibility that the agreement has achieved at all levels, says Burdiles. “This is an indirect boon in which many youth organisations have become involved,” she says.
The Escazú Ahora Chile campaign began last March and mobilised thousands of citizens on social networks to push for the government to sign. Benfeld, the initiative’s national coordinator, says it has gained a lot of strength recently, despite the Covid-19 pandemic.
In October, Chileans agreed in a referendum to create a brand-new constitution, after many took the streets last year demanding more rights and better social protections. Environmental organisations are calling for the environment to be prioritised in the new document, which could open a new door for Escazú.
Both the Ministry of Foreign Affairs and the Ministry of the Environment were consulted by Diálogo Chino for this article but both declined to make statements, saying they had not spoken directly to the press on the issue.