![Sample our Law journals, sign in here to start your FREE access for 14 days]({"type":"image" , "src" : "/sda/5942/TOC-Subject-Sample-2021-Law.jpg"})
Abstract
The adoption in 2018, and entry into force in 2021, of the Escazú Agreement creates significant room for the further entrenchment of Principle 10 of the Rio Declaration in countries in the Latin America and Caribbean region. The severe environmental and related human rights challenges in the region have attracted global attention. And the Agreement is most timely in its aim to secure a healthy environment for the present and future generations and ensure sustainable development in the region. Within the context of good practice in the field – as exemplified by the earlier Aarhus Convention and the United Nations Environmental Programme (UNEP) Bali Guidelines – and the peculiar requirements of the region, this article assesses the quality of the Escazú Agreement, and the extent to which the public right of access to environmental information in the Agreement can contribute to achieving the goal of the regime. It also reflects how best this right might be strengthened where necessary. The study finds that while aspects of the information right are sound, are sensitive to regional needs and peculiarities, and align with and even go beyond established good practice, some key provisions require strengthening as they are significantly weak and potentially compromising of the overall value of the access right granted.
Acknowledgements
I heartily thank the Fung Global Fellowship Program for providing the financial and general academic support required to completion this research. I also thank Mrs Erezi Oduwaye for her research assistance, as well as the anonymous peer-reviewers and the editor for their helpful comments and suggestions.
Disclosure statement
No potential conflict of interest was reported by the author.
Notes
1 ‘Environmental democracy’ is a subset of the political thought of participatory democracy that emphasises the critical role of the public, besides government and developers, in ensuring effective environmental governance and sustainable development, through the public rights to access information, participate in decision-making processes, and access justice in environmental matters. G Bandi, ‘Introduction into the Concept of Environmental Democracy’ in G Bandi (ed), Environmental Democracy and Law: Public Participation in Europe (Europa Law 2014) 3–7
2 Article 22 of the Escazú Agreement provides that ‘The present Agreement shall enter into force on the ninetieth day after the date of deposit of the eleventh instrument of ratification, acceptance, approval or accession’
3 C.N.195.2018, TREATIES-XXVII.18 of 9 April 2018; adopted at Escazú, Costa Rica, on 4 March, 2018
4 World Bank, ‘Earth Day Marks Entry into Force of Escazú Agreement, a New Environmental Law Treaty for Latin America and the Caribbean’ (22 April 2021) <www.worldbank.org/en/news/feature/2021/04/22/earth-day-marks-entry-into-force-of-escaz-agreement-a-new-environmental-law-treaty-for-latin-america-and-the-caribbean> accessed 20 June 2022
5 31 ILM 874 (1992)
6 See Escazú Agreement, Preambles 1 and 2
7 UN Economic and Social Council, Follow-up to the Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean (Resolution E/RES/2021/31, 30 July 2021)
8 Presently, the Parties to the treaty are: Antigua and Barbuda, Argentina, Bolivia, Ecuador, Guyana, Mexico, Nicaragua, Panama, Saint Vincent and the Grenadines, Saint Kitts and Nevis, Saint Lucia and Uruguay. For the current list of Signatories and Parties to the treaty, see <https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVII-18&chapter=27&clang=_en> accessed 20 June 2022. At the time of writing, the latter source had not been updated to reflect Chile as the 25th Signatory of the treaty. Al Jazeera, ‘Chile's New President Signs Escazu Environmental Treaty’ (18 March 2022) <www.aljazeera.com/news/2022/3/18/chile-new-president-boric-signs-escazu-environmental-treaty> accessed 20 June 2022
9 Parties whose parliaments approved the Agreement: Argentina, Bolivia, Ecuador, Mexico, Nicaragua, Panama and Uruguay. See Observatory on Principle 10 in Latin America and the Caribbean of the ECLAC – Information <https://observatoriop10.cepal.org/en/rights/information> accessed 20 June 2022
10 Political Declaration, made at the first meeting of the Conference of the Parties to the Escazú Agreement, held in Santiago, 20–22 April 2022, paras 8 and 9 <https://acuerdodeescazu.cepal.org/cop1/sites/acuerdodeescazucop1/files/22-00357_cop-ez.1_political_declaration.pdf> accessed 20 June 2022. Regarding why some countries in LAC are reluctant to embrace and incorporate the provisions of the Escazú Agreement into their domestic laws, see Garrigues, ‘Escazú Agreement: The Reactions of Chile, Colombia, Peru, Mexico and Brazil with respect to its Adoption’ (29 December, 2020) <www.garrigues.com/en_GB/new/escazu-agreement-reactions-chile-colombia-peru-mexico-and-brazil-respect-its-adoption> accessed 20 June 2022
11 For instance, see MA Riaño and D Barchiche, ‘First Conference of the Parties of the Escazú Agreement: The Implementation Challenge’ (IDDIR, 21 April 2022) <www.iddri.org/en/publications-and-events/blog-post/first-conference-parties-escazu-agreement-implementation> accessed 20 June 2022, where the authors noted: ‘Chile, the country where the process began, had not signed the agreement until recently due to the political changeover, but the first decision of the newly elected president, Gabriel Boric, was to sign it on March 18, 2022 and to launch the ratification process in Congress. Several countries, including Brazil, Colombia, Peru and Costa Rica, have signed the agreement but have not yet ratified it, although this could change following elections in Colombia and Brazil in 2022’
12 Escazú Agreement, art 1
13 UN Human Rights Council, The Right to a Safe, Clean, Healthy and Sustainable Environment (UN Doc A/HRC/48/L.23/Rev.1, 5 October 2021). See JR May, ‘The Case for Environmental Human Rights: Recognition, Implementation, and Outcomes’ (2021) 42 Cardozo Law Review 983, 1018–1019
14 G Pring and SY Noe, ‘The Emerging International Law of Public Participation Affecting Global Mining, Energy, and Resources Development’ in DN Zillman, AR Lucas and G Pring (eds), Human Rights in National Resource Development: Public Participation in the Sustainable Development of Mining and Energy Resource (OUP 2002) 11
15 CIVICUS, ‘ESCAZÚ: The Work of Civil Society Made a Huge Difference’ <www.civicus.org/index.php/es/component/tags/tag/escazu-agreement> accessed 20 June 2022
16 See Global Witness, Defending Tomorrow: The Climate Crisis and Threats against Land and Environmental Defenders (Global Witness July 2020)
17 See B Barton, ‘Underlying Concepts and Theoretical Issues in Public Participation in Resource Development’ in Zillman and others (n 14) 77, 105. See also, D Bodansky, ‘Legitimacy’ in D Bodansky, J Brunnee and E Hey (eds), International Environmental Law (OUP, 2007) 704–723
18 See generally, L Krämer, ‘Transnational Access to Environmental Information’ (2012) 1(1) Transnational Environmental Law 95, at 97–103
19 S Bell, D McGillivray and O Pedersen, Environmental Law (8th edn, OUP 2013) 317–319. See also, S Kravchenko, ‘Is Access to Environmental Information a Fundamental Human Right?’ (2009) 11(2) Oregon Review of International Law 227, at 228
20 This article focuses mainly on the important duty of public authorities to provide environmental information upon request by members of the public, and not on their duty to actively disseminate environmental information
21 Declaration of the United Nations Conference on the Human Environment (Stockholm, 16 June 1972) UN Doc. A/CONF.14/48/Rev. 1, Principles 4, 13, 15–20
22 The World Commission on Environment and Development, Our Common Future (OUP, 1987) 43
23 KJ de Graaf and L Squintani, ‘Sustainable Development, Principles of Environmental Law and the Energy Sector’ in MM Roggenkamp, KJ de Graaf, and R Fleming (eds), Energy Law, Climate Change and the Environment (Edward Elgar Publishing 2021) 41, at 43
24 S Gaines, ‘The Energy Revolution as Sustainable Development’ in L Squintani and HHB Vedder, Sustainable Energy United in Diversity: Challenges and Approaches in Energy Transition in the EU (1st edn, Intersentia 2014) 7–23
25 R Goodland, ‘The Concept of Environmental Sustainability’ (1995) 26 Annual Review of Ecology and Systematics 1, at 4
26 HE Daly, ‘Allocation, Distribution, and Scale: Towards an Economics that Is Efficient, Just and Sustainable’ (1992) 6(3) Ecological Economics 185–93
27 While economic sustainability broadly refers to the ability of societal conditions to sustain long-term economic growth, social sustainability considers the satisfaction of social needs, like personal safety and development, as central to achieving a thriving society
28 de Graaf and Squintani (n 23)
29 P Merkouris, ‘Sustainable Development and Best Available Techniques in International and European Law’ in KE Makuch and R Pereira (eds), Environmental and Energy Law (1st edn, Wiley-Blackwell 2012) 39
30 UN General Assembly, The Future We Want (Resolution A/RES/66/288, 11 September, 2012)
31 Ibid, paras 10 and 43
32 Ibid, para 99
33 UN General Assembly, Transforming Our World: The 2030 Agenda for Sustainable Development (UN Doc A/RES/70/1, 21 October 2015). See E Ekhator, S Miller and E Igbinosa, ‘Introduction: Evolution of the SDGs Framework’ in E Ekhator, S Miller and E Igbinosa, Implementing the Sustainable Development Goals in Nigeria: Barriers, Prospects and Strategies (Routledge 2021) 3–11
34 K Bosselmann, The Principle of Sustainability (2nd edn, Routledge 2016) 5
35 See AO Chimhowu, D Hulme and LT Munro, ‘The “New” National Development Planning and Global Development Goals: Processes and Partnerships’ (2019) 120 World Development 79–82; and UN Development Group (UNDG), The Sustainable Development Goals Are Coming to Life: Stories of Country Implementation and UN Support (UNDG 2016)
36 Secretariat of the UN Committee of Experts on Public Administration, ‘Principles of Effective Governance for Sustainable Development (UN Doc E/2018/44-E/C.16/2018/8, July 2018)
37 Report of the Global Conference on the Sustainable Development of Small Island Developing States, Bridgetown, Barbados, 25 April–6 May 1994 (UN Doc A/CONF.167/9, chap 1, resolution 1, annex II, 1994)
38 Report of the International Meeting to Review the Implementation of the Programme of Action for the Sustainable Development of Small Island Developing States, Port Louis, Mauritius, 10–14 January 2005 (UN Doc A/CONF.207/11, chap 1, resolution 1, annex II, 2005)
39 SIDS Accelerated Modalities of Action (SAMOA) Pathway (UN Doc A/RES/69/15, 2014)
40 See, for instance, Barbados Programme of Action, paras 61, 81 and 104; Mauritius Strategy, paras 79 and 80; and SAMOA Pathway, paras 27, 79, and 115
41 See E Engel and others, Report of the Expert Advisory Group on Anti-cCorruption, Transparency, and Integrity in Latin America and the Caribbean (Inter-American Development Bank 2018); and Organisation for Economic Co-operation and Development (OECD), CAF Development Bank of Latin America and ECLAC, ‘Institutions to Make the State Deliver in Latin America and the Caribbean’ in OECA, Latin American Economic Outlook 2018: Rethinking Institutions for Development (OECD 2018) 139–188
42 Observatory on Principle 10 in Latin America and the Caribbean of the ECLAC <https://observatoriop10.cepal.org/en> accessed 20 June 2022
43 See, for instance, I/A Court HR Case of Claude-Reyes et al v Chile. Merits, Reparations and Costs. Judgment of September 19, 2006. Series C No 151
44 See Inter-American Commission on Human Rights (IACHR), National Jurisprudence on Freedom of Expression and Access to Information (IACHR 5 March 2013)
45 Under Mexican and Paraguayan legislation, access to information is now a human right. See Mexico: General Law of Transparency and Public Access to Information, Mexico City, 4 May 2015; and Paraguay: Decree No 4064 of 2015 Regulating the Freedom of Citizen Access to Information and Government Transparency Act (No 5258), Asuncion, 17 September 2015
46 Observatory on Principle 10 in Latin America and the Caribbean of the ECLAC (n 42)
47 ECLAC, Access to Information, Participation and Justice in Environmental Matters in Latin America and the Caribbean: Towards Achievement of the 2030 Agenda for Sustainable Development (LC/TS.2017/83, 2018) 45
48 Ibid 48 and 56–59
49 The nine LAC countries are: Brazil, Peru, Colombia, Bolivia, Ecuador, French Guiana, Guyana, Suriname and Venezuela
50 R Pereira and B Garcia, ‘Editorial: The Legal Protection of the Amazon Rainforest’ (2021) 30(2) Review of European, Comparative and International Environmental Law 157
51 See J Bendel and T Stephens, ‘Turning to International Litigation to Protect the Amazon?’ (2021) 30(2) Review of European, Comparative and International Environmental Law 173–183
52 See Amazon Watch, The Amazon Sacred Headwaters: Indigenous Rainforest ‘Territories for Life’ under Threat (Amazon Watch December 2019); and P Fearnside, ‘Challenges for Sustainable Development in Brazilian Amazonia’ (2018) 26(2) Sustainable Development 141–149
53 J Ennes, ‘Illegal Logging Reaches Amazon's Untouched Core, “Terrifying” Research Shows’, Mongabay, 15 September 2021 <https://news.mongabay.com/2021/09/illegal-logging-reaches-amazons-untouched-core-terrifying-research-shows> accessed 20 June 2022. See also F Wenzel and others, ‘Paper Maze and Lack of Transparency Cloak Investment in Companies Involved in Amazon Deforestation’, Mongabay, 11 August 2020 <https://news.mongabay.com/2020/08/paper-maze-and-lack-of-transparency-cloak-investment-in-companies-involved-in-amazon-deforestation> accessed 20 June 2022
54 Ennes (n 53); and AP Valdiones and others, ‘Illegal Deforestation and Conversion in the Amazon and Matopiba: Lack of Transparency and Access to Information’ (March 2021) 17 <https://wwfbr.awsassets.panda.org/downloads/illegal_deforestation_and_conversion_in_the_amazon_and_matopiba___full_report.pdf> accessed 20 June 2022
55 UN General Assembly, Report of the Special Rapporteur on the Situation of Human Rights Defenders (UN Doc A/71/281, 3 August 2016), para 50
56 Ibid, para 34. See also ECLAC, 'States Parties to the Escazú Agreement Call for Joint Action to Promote Latin America and the Caribbean's First Environmental Treaty’ (22 April 2022) <https://acuerdodeescazu.cepal.org/cop1/en/news/states-parties-escazu-agreement-call-joint-action-promote-latin-america-and-caribbeans-first> accessed 20 June 2022, where Chilean President Gabriel Boric noted that ‘The Escazú Agreement comes into being as a response to the urgent needs of our region, which regrettably has become the most dangerous area in the world for environmental defenders. And it embodies deep desires on the part of the peoples living in this corner of the Global South: desires for peace, desires for justice, desires for decisive action amid the climate crisis and the environmental degradation that we are facing’. Emphasis added
57 UN General Assembly, Report of the Special Rapporteur on the Situation of Human Rights Defenders (n 55) para 69
58 ECLAC, Access to Information, Participation and Justice (n 47) 67–69
59 Laws of Guyana, Act No 21 of 2011
60 Section 18
61 ECLAC and CCJ Academy of Law, Ensuring Environmental Access Rights in the Caribbean: Analysis of Selected Case Law (ECLAC, LC/TS.2018/31/Rev.1, 2018) 7. Emphasis added
62 Ibid, 89
63 ECLAC, Access to Information, Participation and Justice (n 47) 67 (emphasis added)
64 J Ebbesson and others, The Aarhus Convention: An Implementation Guide (2nd edn, UN Economic Commission for Europe, 2014) 60
65 ECLAC, ‘States Parties to the Escazú Agreement Call for Joint Action’ (n 56)
66 UNECE and UNEP, Assessment of Progress in Sustainable Development since Rio 1992 for Member States of the United Nations Economic Commission for Europe (UN Doc CEP/AC.12/3, 20 July 2001) xv
67 See S Kravchenko, ‘Strengthening Implementation of MEAs: The Innovative Aarhus Compliance Mechanism’ in D Zaelke, D Kaniaru and E Kruzikova (eds), Making Law Work: Environmental Compliance and Sustainable Development (Cameron May 2005) 258–259
68 See G Tardi, ‘Law as a Counterweight to Politicisation in Democratic Public Management’ (2012) 38(4) Commonwealth Law Bulletin 591, at 595–596; and R Michaels, ‘“One Size Can Fit All” – Some Heretical Thoughts on the Mass Production of Legal Transplants’ in G Frankenberg (ed), Order from Transfer: Comparative Constitutional Design and Legal Culture – Studies in Comparative Law and Legal Culture Series (Edward Elgar 2013) 56, 68 ff
69 2161 UNTS 447 (1998)
70 Adopted by the Governing Council of UNEP, UNEP/GCSS.XI/11, Decision SS.XI/5, pt A, 26 February 2010
71 M Mason, ‘Information Disclosure and Environmental Rights: The Aarhus Convention’ (2010) 10(3) Global Environmental Politics 10, at 21–26
72 K Sommermann, ‘Transformative Effects of the Aarhus Convention in Europe’ (2017) 77 ZaöRV 321–337. See generally Ebbesson and others (n 64)
73 S Stec and S Casey-Lefkowitz, The Aarhus Convention: An Implementation Guide (UN 2002), Foreword. See also U Etemire, Law and Practice on Public Participation in Environmental Matters: The Nigerian Example in Transnational Comparative Perspective (Routledge 2015)
74 L De Silva, ‘Escazú Agreement 2018: A Landmark for the LAC Region’ (2018) 2 Chinese Journal of Environmental Law 93, at 94. See also ECLAC, ‘ECLAC's Submission to the Compilation Document to Serve as Basis for the Preparation of the Zero Draft of the Outcome Document of Rio+20’, para 7, <https://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.366.1387&rep=rep1&type=pdf> accessed 20 June 2022
75 See, for instance, Taskin v Turkey (2006) 42 EHRR 50. In this case, although Turkey was not a party to the Aarhus Convention, the ECtHR directly read the provisions of the Convention into the ECHR (to which Turkey is a party) ‘in a particularly extensive form’ in deciding the matter. A Boyle, ‘Human Rights and the Environment: Where Next?’ (2012) 23(3) European Journal of International Law 613, at 624
76 For example, Chile largely adopted the Aarhus Convention's definition of ‘environmental information’ in its revised General Environmental Framework Law (2010), Law No 20.417. JB Soto, ‘El acceso a la Información Pública y la Justicia Ambiental’ [‘Access to Public Information and to Environmental Justice’] (2010) 34 Revista de Derecho (Valparaíso) 571–596
77 Bali Guidelines, Preamble
78 U Etemire, ‘Insights on the UNEP Bali Guidelines and the Development of Environmental Democratic Rights’ (2016) 28(3) Journal of Environmental Law 393, at 398–403
79 Ibid 398
80 See General Assembly Resolution (XXVII), art 1 <https://undocs.org/en/A/RES/2997(XXVII)> accessed 20 June 2022
81 Aarhus Convention, art 4 (1)
82 Bali Guidelines, Guideline 1
83 Escazú Agreement, art 3
84 A Pánovics, ‘The Escazú Agreement and the Protection of Environmental Human Rights Defenders’ (2021) 1 Pécs Journal of International and European Law 23, at 28
85 Empirical evidence from India supports this point. See A Roberts, ‘A Great and Revolutionary Law? The First Four Years of India's Right to Information Act’ (2010) 70(6) Public Administration Review 925, at 931
86 For a similar suggestion, see Attorney-General of the Federation and Minister of Justice, The Guidelines on the Implementation of the Freedom of Information Act 2011, Revised Edition 2013 (Federal Ministry of Justice, 2013) para 1.9
87 Escazú Agreement, art 4; under art 2(e), ‘“Persons or groups in vulnerable situations” means those persons or groups that face particular difficulties in fully exercising the access rights recognised in the present Agreement, because of circumstances or conditions identified within each Party's national context and in accordance with its international obligations’
88 Ibid, art 3
89 See UNEP, Putting Principle 10 into Action: An Implementation Guide for the UNEP Bali Guidelines for the Development of National Legislation on Access to Information, Public Participation and Access to Justice in Environmental Matters (UNEP 2015) 51, 81, 85 and 89; and M Poustie, ‘Environmental Justice in SEPA's Environmental Protection Activities: A Report for the Scottish Environment Protection Agency’ (SEPA 2004) 87–88
90 Aarhus Convention, art 3(2)
91 U Etemire, ‘Public Access to Environmental Information: A Comparative Analysis of Nigerian Legislation with International Best Practice’ (2014) 3(1) Transnational Environmental Law 149, at 161
92 Aarhus Convention, art 4(1)(b); the only exceptions being where: (i) it is reasonable for the public authorities to provide the information in another form, in which case reasons shall be given, or (ii) the information is already publicly available in another form
93 Escazú Agreement, art 5(11)
94 Aarhus Convention Compliance Committee, ‘Report of the Compliance Committee on Its Twenty-Sixth Meeting (Addendum): Findings and Recommendations with Regard to Compliance by Spain, Communication ACCC/C/2008/24’, ECE/MP.PP/C.1/2009/8/Add.1, 8 February 2011, at para 70. See also the United Kingdom case of Office of Communications v Information Commissioner and T-Mobile (UK) Ltd, Appeal No EA/2006/0078, 4 September 2007
95 Escazú Agreement, art 5(12)
96 Ibid, art 5(13)
97 Aarhus Convention, art 4(2)
98 See RA Mmadu, ‘A Critical Assessment of Nigeria's Freedom of Information Act 2011’ (2011) 1(1) Sacha Journal of Human Rights 118, at 142
99 Escazú Agreement, art 5(2)(b) and (15)
100 Aarhus Convention, art 4(3)(a)
101 Aarhus Convention, art 4(6)
102 Escazú Agreement, art 5(10)
103 See Escazú Agreement, art 5(18) and 8
104 See B Orme, Access to Information: Lessons from Latin America (United Nations Educational, Scientific and Cultural Organization 2017) 14; and United Nations Development Programme and United Nations Office on Drugs and Crime, Global Study on Legal Aid: Global Report (United Nations 2016) 6, at 128
105 Aarhus Convention, art 4(7)
106 Aarhus Convention, art 3(2). See P Birnie, A Boyle and C Redgwell, International Law and the Environment (3rd edn, OUP, 2009) 292
107 Article 2 of the Preliminary Document of the Regional Instrument on Access to Information, Participation and Justice on Environmental Matters in Latin America and the Caribbean (ECLAC, LC/L.3987, 5 May 2015) (‘Preliminary Version of the Escazú Agreement’) provides that: ‘“Environmental information” means, non-exhaustively, any information that is written, visual, audio, electronic or recorded in any other form that is in the possession of the competent authority, or should be, in fulfilment of its national obligations and international commitments and that addresses the following matters: (a) the state of the biotic and abiotic elements of the environment, such as the air and atmosphere, water, earth, landscapes, protected areas, biological diversity and its components, including genetically modified organisms; and the interaction between these elements; (b) factors, such as substances, energy, noise, radiation and waste, including radioactive waste, emissions, spills and other releases into the environment, that affect or could affect elements of the environment; (c) legislation, administrative acts related to environmental matters or that affect or could affect the elements and factors cited in subparagraphs (a) and (b), and the measures, policies, rules, plans, programmes that support them; (d) reports and administrative acts on compliance with environmental legislation; (e) economic and social analyses, as well as other studies used to make decisions related to the legislation, administrative acts and supporting mechanisms referred to in subparagraph (c); (f) the state of the health and safety of individuals, living conditions, cultural assets, when these are or could be affected by the state of the elements of the environment cited in subparagraph (a) or any of the factors or measures indicated in subparagraphs (b) and (c); (g) acts, resolutions, and decisions on matters related to the environment that are issued by the national judicial and/or administrative bodies; and (h) any other information on the environment or on elements, components or concepts related thereto’
108 Under Article 2(c) of the Escazú Agreement, ‘“Environmental information” means any information that is written, visual, audio, and electronic, or recorded in any other format, regarding the environment and its elements and natural resources, including information related to environmental risks, and any possible adverse impacts affecting or likely to affect the environment and health, as well as to environmental protection and management’
109 S Stec and J Jendroska, ‘The Escazú Agreement and the Regional Approach to Rio Principle 10: Process, Innovation, and Shortcomings’ (2019) 31 Journal of Environmental Law 533, at 536
110 See the combined provisions of art 2(4) and 3(9) of the Aarhus Convention
111 Bali Guidelines, fn to art 6
112 Escazú Agreement, art 2(d). Emphasis added
113 Article 2 and 5(12) of the Preliminary Document of the Escazú Agreement (n 107)
114 Stec and Jendroska (n 109) 544
115 See Escazú Agreement, art 2(b); and Aarhus Convention, art 2(2)
116 For discussion on the relatively new approach of subjecting private bodies to (environmental) transparency measures, see U Etemire, ‘Public Access to Environmental Information Held by Private Companies’ (2012) 14(1) Environmental Law Review 7–25; and R Calland, ‘Prizing Open the Profit-Making World’ in A Florini (ed), The Right to Know: Transparency for an Open World (Colombia University Press 2007) 214–242
117 Article 2 of the Preliminary Document of the Escazú Agreement (n 107)
118 ECLAC, The Recovery Paradox in Latin America and the Caribbean Growth Amid Persisting Structural Problems: Inequality, Poverty and Low Investment and Productivity (No 11 Special Report on COVID-19, ECLAC, July 2021) 19
119 Bali Guidelines, Guideline 1
120 Etemire, ‘Public Access to Environmental Information: A Comparative Analysis’ (n 91) 166
121 Information Commissioner of Canada, ‘Annual Report 1993–94’, 9 <https://publications.gc.ca/collections/collection_2012/ci-oic/IP20-1-1994-eng.pdf> accessed 20 June 2022
122 It is, however, being inferred that the relevant provisions of the Aarhus Convention cover only material costs of reproducing and supplying information, and not the more indirect and remote costs associated with public institutions searching for, or the applicant examining the requested information in situ. Ebbesson and others (n 64) 94
123 Aarhus Convention, art 4(8)
124 Escazú Agreement, art 5(17)
125 Ebbesson and others (n 64) 94
126 Transparency International, Global Corruption Barometer: Latin America & the Caribbean 2019 (Transparency International 2019)
127 Aarhus Convention, art 4(8)
128 Escazú Agreement, art 5(17); see also art 5(5)
129 Krämer (n 18) 95–96
130 S Kravchenko, ‘Is Access to Environmental Information a Fundamental Human Right?’ (2009) 11(2) Oregon Review of International Law 227, at 245
131 Bali Guidelines, Guideline 3 provides that ‘States should clearly define in their law the specific grounds on which a request for environmental information can be refused. The grounds for refusal are to be interpreted narrowly, taking into account the public interest served by disclosure’
132 P Davies, ‘Public Participation, the Aarhus Convention, and the European Community’ in Zillman and others (n 14) 155, at 162
133 Escazú Agreement, art 5(6)
134 Ibid
135 Ibid
136 E Barritt, ‘Global Values, Transnational Expression: From Aarhus to Escazú’ in V Heyvaert and L Duvic-Paoli (eds), Research Handbook on Transnational Environmental Law (Edward Elgar 2020) Part III
137 Just like Bali (Guideline 3) and Aarhus (art 4(4)), art 5(8) of Escazú further stipulates that all exceptions be interpreted restrictively, taking into account the public interest served by disclosure. This public interest test, which can be used to override all exceptions to access, further narrows down the application of the specific exceptions. Further, under art 5(9) of Escazú, ‘When applying the public interest test, the competent authorities shall weigh the interest of withholding the information against the public benefit of disclosing it, based on suitability, need and proportionality’. The idea is that ‘if the public interest in maintaining the exemption does not outweigh the public interest in disclosing the information, the information must be disclosed’ even though it originally falls within the exception. Etemire, ‘Public Access to Environmental Information: A Comparative Analysis’ (n 91) 167
138 ECLAC, Access to Information, Participation and Justice (n 47) 45
139 Freedom of Information Act (No 26 of 1999, amended in 2003), Sections 24 and 34
140 Freedom of Information Act (No 27 of 2003), Sections 25 and 29
141 Access to Information Act (No 21 of 2002), Part III
142 Freedom of Information Act (No 1 of 2017), Section 16
143 See art 6(5)–(10) of the Preliminary Document of the Escazú Agreement (n 107)
144 Article 13 of the Escazú Agreement provides for national implementation of the Agreement
145 ECLAC, ‘Public Consultation on the Escazú Agreement Implementation Guide’ (11 April 2022) <www.cepal.org/en/notes/public-consultation-escazu-agreement-implementation-guide> accessed 20 June 2022
146 Article 20 of the Escazú Agreement provides for the procedure for amending the Agreement
147 Escazú Agreement, art 18
148 Ibid
149 Rules Relating to the Structure and Functions of the Committee to Support Implementation and Compliance, Decision 1/3 of the first meeting of the Conference of the Parties to the Escazú Agreement, held in Santiago, 20–22 April 2022 <https://acuerdodeescazu.cepal.org/cop1/sites/acuerdodeescazucop1/files/22-00344_cop-ez.1_decisions_approved_4_may.pdf> accessed 20 June 2022
150 See A Andrusevych and S Kern (eds), Case Law of the Aarhus Convention Compliance Committee (2004–2014) (3rd edn, RACSE 2016)