Chile abandons the Escazú environmental agreement that it led in the region

The president of Chile, Sebastián Piñera, participates on September 19 of the Day of the Glories of the Army, in the Military School in Santiago (Chile) .ELVIS GONZÁLEZ / EFE

This Saturday, within the framework of the United Nations General Assembly, the period for the countries of Latin America and the Caribbean to sign the Escazú treaty, a pioneering agreement in the region that seeks to guarantee access to information, closes. to citizen participation and Justice in environmental matters.

Inspired by the European Aarhus agreement, which came into force in 2001, it was promoted since 2012 by Costa Rica and Chile, which assumed the technical secretariat of the negotiations.

But, although both countries led the process, the Chilean government of Sebastián Piñera announced at the last minute that it will not sign the treaty, despite the fact that it was in the first term of the same president when it was proposed to develop this international instrument.

Costa Rica, therefore, has been left alone in the presidency of Escazú.

Piñera's resolution has produced confusion both in Chile and on the international scene, because it is contradictory: the South American country was Escazú's promoter, negotiator and later agreed to the final text, in March 2018. Chile also chairs the United Nations Conference on Climate Change (COP25), an issue that has been central in recent years abroad.

“The decision of President Piñera not to ratify Escazú is inexplicable.

For years, Chile led this pioneering agreement on environmental matters and, with this decision, it departs from active multilateralism on this issue, of which it has been an important actor, ”said former Chilean socialist president Ricardo Lagos (2000-2006) on Wednesday , which was a United Nations special envoy for climate change.

There are four reasons put forward by the Government of Chile for not signing the Escazú Treaty, according to a document prepared by the Foreign Ministry and the Ministry of the Environment: that the agreement introduces a series of undefined principles that will condition environmental legislation, that It implies changes in the legislation that will generate legal uncertainty, which introduces “ambiguous, broad and undefined” obligations for the State that make compliance difficult and, furthermore, that exposes Chile to international controversies due to the direct application of its regulations and their ambiguous nature.

Fear of international demands by other countries in the region was the argument that was delivered in 2018 to surprisingly postpone the signing of the treaty, which Chile would carry out within the framework of the United Nations Assembly that year.

“It was argued that the agreement could imply that Bolivia sue Chile for a sovereign exit to the sea, because Escazú speaks of the International Court of Justice as a mechanism for the resolution of controversies.

But it is optional: the States, if they have a dispute, must both agree to go to court ”, explains Paulina Astroza, PhD in Political and Social Sciences.

"As the cooperation agreement mentions that certain countries must be taken into special consideration, such as those without a coastline, Chile misinterpreted that Bolivia could sue it," adds the academic from the University of Concepción.

The lawyer Valentina Durán, director of the Center for Environmental Law at the University of Chile, adds another element: “The obligations that Escazú establishes are of the States towards their nationals.

The reciprocal obligations of the parties are obligations of cooperation.

Therefore, the hypotheses on possible international controversies are laboratory based, ”says the academic.

According to Durán, “the Aarhus convention, which is the European simile to the Escazú agreement, in more than 20 years of implementation has never had an international controversy in which States sue each other for not complying with their provisions ”.

Astroza indicates that the legal arguments that the Government has delivered this week are different from those of 2018 and that, with Piñera's decision, "Chile is looking very bad."

“In the foreign ministries and diplomatic conversations, everyone wonders what happened: Weren't we the champions in the fight against climate change, with the presidency of COP25?

What happened in those last hours of 2018 when it was decided not to sign the treaty and why does the president continue with the position of not signing it, damaging our international image? ", Questions the doctor.

For Durán, in the Chilean government "there is no conviction that the protection of human rights and guaranteeing the right to live in a healthy environment for present and future generations is a condition for development, which is very serious."

"It generates immense damage to Chilean environmental policy and foreign policy, because what credibility are we going to have as a country if we are able to lead a process and withdraw at the last minute?", Says the director of the Environmental Law Center of the University of Chile.

For the lawyer, what the Piñera Executive has done generates distrust in reluctant sectors of the region and damages the principle of good faith, very important in international law.

New scenario

In the Chilean ruling party, it is explained that the refusal to sign Escazú is related to the new international scenario.

According to those who have participated in the negotiation process, there are fears that the treaty will cause over-regulation of investments and that it will lock them up through international resources.

The decision to subtract would not, therefore, be a political-international matter, but rather an assessment of the impact that the treaty may have within the legislation itself.

The Government of Chile - a country that has a relatively developed environmental structure, although with shortcomings even alerted by the OECD -, in the midst of the global economic crisis, is focused on simplifying and making the investment verification processes more transparent, not on increasing the rules .

There are 33 Latin American and Caribbean States that can potentially join the treaty.

Of these, 23 have already signed it and 10 have ratified it through their Congresses (Antigua and Barbuda, Bolivia, Ecuador, Guyana, Nicaragua, Panama, Saint Vincent and the Grenadines, Saint Kitts and Nevis, Uruguay and, the last one, Argentina, which ratified it on Thursday).

Eleven states are needed - one more - for the agreement to enter into force.

But, although today the deadline to sign and be part of the original states is over, countries can continue their ratification process in parliaments.

In the case of Chile, it could subsequently participate through accession.