Part IV - Environment

11 Legal Mobilisation for Biodiversity Protection Assessing the Complementary Potential of the Bern Convention’s Case File System and the European Commission’s Infringement Procedure

Elena Evangelidis

11.1 Introduction

The importance of civil society actors in ensuring that breaches of environmental law are identified and reported to the bodies responsible for their compliance is difficult to overstate. Nevertheless, civil society groups continue to face severe limitations in respect of access to justice in environmental matters.¹ In the European regional context, the literature concerning opportunities for legal mobilisation for environmental protection has long focussed on the mobilisation of citizens in relation to European Union environmental law, largely via their national legal systems or via the European Court of Justice (CJEU).² Relatively underexplored, on the other hand, has been the role of (non-)compliance systems outside the EU’s institutional structure, operating with a similar geographical scope.³ In particular, the potential of the 1979 Bern Convention on European Wildlife Conservation⁴ and its corresponding (non-)compliance mechanism known as the ‘case file system’ (CFS) seems to be overshadowed by academic discourse on the mechanisms of the EU. The core point argued in this chapter is that while the looming shadow of CJEU judgments provides an indispensable lever for NGOs seeking to protect biodiversity with the help of the law, less confrontational and civil society-oriented compliance mechanisms such as the CFS also provide important avenues for legal mobilisation.

By applying a ‘legal opportunity structures’ approach – one of the theoretical approaches developed within scholarship on legal mobilisation – the chapter assesses the legal opportunities offered by the CFS and the European Commission’s (EC) infringement procedure. The purpose of studying legal opportunity structures is to gain an understanding of why social movements turn to litigation or (non-)compliance mechanisms in their efforts to protect biodiversity. According to Evans, Case and Givens, the main factors defining the ‘openness’ of legal opportunity structures are ‘the nature of the available legal stock, the rules governing access to the judiciary, and resources for legal advocacy’.⁵ Zooming in on the question of access, this chapter compares the CFS and the EC’s infringement procedure, examining the participatory rights provided by each system and their respective ability to respond effectively to concerns raised by civil society actors. It takes a broad view of ‘legal mobilisation’, which includes mobilisation through compliance procedures within its scope. Thus, it applies a modified understanding of the openness indicators which accommodates (non-)compliance procedures. Consequently, ‘access’ is understood to mean ‘access to the judiciary or (non-)compliance mechanism’.

From this viewpoint, distinct benefits and drawbacks of each mechanism are brought to the surface. The chapter suggests that actors can ameliorate the shortcomings of either procedure and expand their legal opportunities by shifting between the two systems. It also argues that the pursuit of a parallel mobilisation strategy in previous cases has brought to the fore the synergistic potential between the CFS and the EC’s infringement procedure. Given the limited scope of the chapter, preliminary reference procedures under Article 267 TFEU as complementary mobilisation pathways are excluded from the discussion.⁶

In this chapter, a brief introduction to legal mobilisation is followed by a methodology section. Subsequently, the procedural rules and practice of the CFS and the EC’s infringement procedure will be outlined, serving as a primer to the comparative assessment of the participatory possibilities and capacity for effective response to complaints in each system. The chapter will then trace the development of two case files (and corresponding CJEU proceedings) initiated by the NGO BirdLife International and its national partners in Bulgaria and Malta to draw out concrete instances of interaction between the CFS and the infringement procedures (including CJEU judgments).

11.2 A Brief Introduction to Legal Mobilisation

The literature has produced little consensus regarding the meaning of the term ‘legal mobilisation’.⁷ Frances Zemans’ definition remains the most cited: ‘The law is … mobilised when a desire or a want is translated into a demand as an assertion of rights.’⁸ This traditional definition is somewhat ill-suited to legal mobilisation for biodiversity protection. Its emphasis on the assertion of ‘rights’ complicates the concept’s application to the environmental field, where litigants may often struggle to demonstrate the existence or violation of a right. Lehoucq and Taylor employ a useful definition of the term as referring to ‘the use of law in an explicit, self-conscious way through the invocation of formal institutional mechanisms’.⁹ In any event, the characterising feature of applying a ‘legal mobilisation’ approach is the adoption of an actor-focussed perspective in the study of these mechanisms, using one or several of the key concepts developed within the scholarly field.

Mobilisation theory has elaborated several conceptual approaches useful for understanding the behaviour of actors within various legal systems. A commonly used conceptual approach focusses on ‘legal opportunity structures’ stressing the influence of access by social movements to legal procedures on the emergence and success of legal actions.¹⁰ Scholars of legal mobilisation unambiguously agree that the procedural rules in any given legal system influence the legal opportunities available to actors wishing to mobilise the law through institutional mechanisms. Research in this tradition particularly highlights the role of standing rules or access requirements on the ability of actors to influence policy – the relaxation or elimination of such hurdles is understood as one of the key elements for this purpose.¹¹ Relatedly, legal opportunities are affected by the cost of access to dispute settlement.¹² A lack of funds acts as a common deterrent to legal mobilisation through compliance systems. Finally, opportunity structures are shaped by ‘the body of laws that exist in a particular field’,¹³ which is referred to as ‘legal stock’. Far from being fixed, legal stock can develop over time, not least as a result of legal mobilisation efforts.¹⁴

11.3 Methodology and Case Study Selection

Both case studies trace and assess the strategic legal mobilisation of BirdLife International. This NGO stands out as the organisation involved in the highest number of complaints before the Bern Convention’s CFS (see Table 11.1). It also occupies a special position in the pan-European institutional landscape in relation to nature conservation; its organisational structure comprises a network of national partners throughout Europe and the globe.¹⁵ Thus, BirdLife benefits from a vast on-the-ground presence and from a large reservoir of financial and human resources.¹⁶ Additionally, and as a consequence of the foregoing factors, BirdLife is an ‘insider’ to the Bern Convention’s institutional structure. Its insider position is defined by BirdLife’s engagement with institutional activities related to the Convention. For instance, BirdLife collaborates with the Convention’s group of experts on the conservation of birds, which monitors the compliance of the parties with the provisions related to bird conservation and the implementation of the Convention’s species action plans.¹⁷ For the purposes of this chapter, national partners of BirdLife International are treated as part of the same organisation.¹⁸ The chapter’s two case studies were selected from the pool of CFS complaints lodged by BirdLife International. They distinguish themselves from BirdLife’s other complaints, in that the issues raised were also brought to the attention of the EC and ultimately resulted in CJEU judgments.

Table 11.1 Bern Convention case file system data (April 2022)

Complainant type	Number of complaints
BirdLife	24
WWF	12
MEDASSET	7
SEH	13
Other NGOs, scientific organisations, universities, law firms	74
Community, citizen activist groups, individuals	19
Political bodies, political parties, parties to the Convention, Secretariat	10
N/A (no reports indicating the complainant found)	52

Although many case files are available online through the Convention’s database, the chronological tracing of individual case files is cumbersome. It is not currently possible to view all files pertaining to a single case in an organised manner and some documents pertaining to the case files may be either missing or classified.¹⁹ Except for internal documentation, no systematic repository of the complaints received through the Bern Convention’s CFS currently exists.²⁰ The lack of such a repository also complicates the production of a comprehensive overview of complainants involved in each case. An overview of basic facts pertaining to each file was produced in 2007 in the context of a stocktake on the rules of procedure for the CFS.²¹ Naturally, this list only includes cases filed until 2007, excluding roughly 50 per cent of complaints. However, the Register of Bern Convention Complaints provides a complete list of complaints received since the establishment of the CFS, indicating the country concerned and the date of receipt.²² With reference to this list, I searched for the complainant report attached to each individual case file with the aim of creating a general picture of the mobilisation practices of actors within the CFS. Unfortunately, the Bern Convention’s database does not contain the documents for each case file and information for fifty cases overall is missing from the overview. The results are compiled in Table 11.1. Numbers are calculated on the basis of a total of 211 case files. Case files were counted twice, if submitted jointly by two complainants within different categories. For example, a complaint submitted jointly by an individual and an NGO was added as plus one to each category.

11.4 The Bern Convention and the EU Birds and Habitats Directives

The Bern Convention and the EU Birds and Habitats Directives together form the linchpin of nature protection law in the European area. The Bern Convention’s overarching aim is the conservation of ‘wild flora and fauna and their natural habitats, especially those species and habitats whose conservation requires the co-operation of several States’.²³ The Convention is therefore broad in focus, including not only all species but also the conservation of habitats in its scope. As an instrument of the Council of Europe, the Convention enjoys particularly wide ratification: its membership includes the Council of Europe’s forty-nine member States, five additional States and the European Union in its capacity as an international organisation.²⁴

The Bern Convention was ratified in 1979, the same year as the EU Birds Directive²⁵ was adopted. These two instruments predate the Habitats Directive (1992) by more than a decade.²⁶ The Birds Directive and the Habitats Directive both essentially implement the Bern Convention into EU law, promoting a ‘favourable conservation status’ for species and habitat types included within their scope.²⁷ The relationship between the Bern Convention and the Habitats Directive has been deliberately synergetic from the start,²⁸ co-evolving in several ways. First, the Directive incorporated elements not included in the Convention, especially through the establishment of a co-ordinated network of protected areas throughout Europe known as the Natura 2000 network.²⁹ The Bern Convention Secretariat and Standing Committee responded to this development and followed suit through the establishment of the Emerald Network, which emulated Natura 2000 in the territories of non-EU member States party to the Bern Convention.³⁰ For EU members, the obligations relating to the networks are identical insofar as, for these States, ‘Emerald Network sites are those of Natura 2000’.³¹

Given the overlap between the Convention and the Directives, the two instruments have naturally been the subject of ample comparison within academic literature. Authors often highlight the Bern Convention’s reach within non-EU (and, indeed, non-Council of Europe) member States as the instrument’s primary contemporary contribution.³² Of course, it is true that the Bern Convention and its CFS constitute through their mere existence an international legal opportunity structure for citizens situated within the Bern Convention’s reach, but outside of the EU. BirdLife primarily mobilised the CFS in relation to Convention breaches that occurred in countries not subject to the Directives. Out of the twenty-four identified case files involving BirdLife, fifteen were filed in relation to non-EU countries.³³

The relatively low mobilisation rate under the Bern Convention in relation to EU countries may be the result of perceptions on the part of mobilising actors that the Bern Convention’s CFS lacks legal ‘teeth’ when compared to the more legalised options available in relation to the EU Directives.³⁴ Although disputes concerning the application of the Bern Convention can be referred to binding arbitration by the Standing Committee (the CFS’s decision-making organ),³⁵ at the time of writing, this has never happened in practice.³⁶ Instead, the CFS’s process has been oriented towards the facilitation of productive dialogue and the promotion of practical solutions in the form of soft recommendations.³⁷

Nevertheless, the CFS shows that actors do continue to mobilise via the CFS, even where EU membership has given them access to EU law and the corresponding dispute settlement procedures conferred thereunder. This raises questions as to why actors to whom both the procedures under the Bern Convention and the EU Directives are available choose to direct their complaint to the Commission, the CFS, or both.

11.5 Mobilising for Compliance with the EU Nature Directives: The European Commission’s Infringement Procedure and Referrals to Litigation before the CJEU

The implementation of EU environmental law depends heavily on engaged civil society groups able to identify breaches of EU environmental law on the ground and motivated to report them to the bodies responsible for enforcement.³⁸ Despite this, it is well known that the CJEU is an inhospitable environment for legal mobilisation.³⁹ Non-privileged applicants (i.e., natural and legal persons) have to satisfy strict standing requirements to directly access the Court.⁴⁰ Non-State actors therefore rely on alternative mobilisation avenues. One of the main pathways in the EU context is the submission of complaints to the Commission to encourage infringement procedures.

At first glance, the initiation of infringement procedures seems to provide an exceptionally open opportunity structure for complainants. Individuals or organisations can submit complaints free of charge and without having to satisfy standing requirements via an online or physical complaints form, which is available in twenty-three languages.⁴¹ The complaint’s submission is followed by the Commission’s assessment of the potential instance of non-compliance with EU law and a subsequent informal bilateral process between the Commission and the Member State known as the EU Pilot. Should the Member State fail to respond to the Commission within the ten-week deadline afforded to it under the Pilot, the Commission has the power (but no obligation) to open a formal infringement procedure under Article 258 TFEU.

Under the formal infringement procedure, the Commission may request a response from the Member State concerning its alleged failure to comply with EU environmental law by means of a letter of formal notice. Failure on the Member State’s part to issue a satisfactory response within two months entitles the Commission to request the Member State to comply with EU law by sending a reasoned opinion (Article 258 TFEU). Non-compliance with the reasoned opinion triggers the Commission’s discretion to refer the case to the CJEU.

Although the outcome of litigation before the CJEU is binding, financial penalties are imposed only in case of a second infringement procedure launched in response to a State’s non-compliance with the Court’s judgment. The second infringement procedure comprises fewer steps than the first – the Commission commences the procedure by sending a second letter of formal notice. Upon proposal by the Commission, the Court then has the authority to impose a financial penalty in the form of a lump sum or daily payment on the Member State.⁴²

11.6 Mobilising through the Bern Convention’s Case File System: Access and Procedure

By comparison, in the Bern Convention’s CFS, NGOs, individuals and other civil society actors can also file complaints without having to satisfy standing requirements.⁴³ This is done through complaint forms, which are followed up by a request for information, sent by the Secretariat to the party against which the complaint was issued. Should the government fail to respond within four months, the complaint is designated as a ‘possible file’.⁴⁴ Subsequently, the case may be dropped on the basis of insufficient grounds to pursue the issue as a presumed breach or, alternatively, a case file can be formally opened, mandating special attention in relation to the case, for example in the form of on-the-spot appraisals.⁴⁵

The body which decides on the status of files as well as recommendations for the resolution of disputes is the Standing Committee.⁴⁶ Functioning as the governing body of the Convention, the Standing Committee ‘includes all contracting parties as well as observer states and organisations, both governmental and non-governmental, at the national and international level’.⁴⁷ Decisions of the Committee are taken by a two-thirds majority – parties are not in possession of veto powers.⁴⁸ The rules concerning voting apply to decisions to initiate on-the-spot appraisals.⁴⁹ Decisions regarding proposals for mediation are taken by the Standing Committee or the Bureau.⁵⁰

Since the Bern Convention has come into force, the Secretariat has received 211 complaints through the CFS,⁵¹ and 37 case files have formally been opened. Case files are usually formally opened where the Standing Committee considers that a breach of the Convention provisions concerns a site or species of European importance, the scope of the threat is especially broad in character or the measures needed are of an urgent nature.⁵² However, in recent years, there has been concern on the part of the Standing Committee that the opening of a case file indicates a presumption of non-compliance with the Convention. For this reason, the Standing Committee may refrain from formally opening a case file (it may, for example, be marked as ‘in stand-by’), but still initiate measures such as ‘on-the-spot appraisals’ and other forms of dialogue.⁵³

One example is the case file concerning the construction of an overhead power line in an environmentally sensitive area in the Lithuanian–Polish borderland. A local NGO argued that the construction could cause a direct negative impact on some species and habitats protected under the Bern Convention and EU Directives (the power line was to be located near an EU Natura 2000 site).⁵⁴ Rather than opening the case file, the Standing Committee referred the matter to mediation.⁵⁵ This commitment to a flexible handling of cases is explicitly written into the Convention. Article 18(1) read, ‘The Standing Committee shall use its best endeavours to facilitate a friendly settlement of any difficulty to which the execution of this Convention may give rise.’ Thus, the decisions of the Standing Committee are nuanced, and attention may be given even to those cases which are not formally opened.

11.7 Comparison of the Case File System and the European Commission’s Infringement Procedure from a Legal Opportunity Structures Perspective

Based on legal opportunity structures theory, it is argued that CFS’s structural openness to civil society participation is the primary pull for groups seeking compliance with nature protection law in Europe. Importantly, this is relevant not only as far as the initiation of the complaint is concerned. Rather, the potential for civil society participation continues to define the legal opportunity structure for NGOs at every stage of the process. Additionally, the potential for continuous participation interacts positively with the CFS’s other defining features, such as procedural flexibility. Finally, the Bern Convention’s ‘small sibling’ relationship with the EC in environmental matters means that the CFS’s welcoming approach towards actor participation extends beyond the CFS. In fact, given the synergetic potential of the two systems, mobilisation at the interface of CFS and EC infringement procedures could potentially alter the legal opportunities available to NGOs.

Previous scholarship has suggested that while the Bern Convention’s CFS would be suited to cases in which State and complainant are actively willing to reach a suitable solution, the EU’s more coercive mechanism would be preferable where States are not willing to act on the basis of soft recommendations.⁵⁶ At a Bern Convention meeting on the Convention’s implementation through national case law in June 1999, Mr Dave Pritchard, representative of BirdLife International and the Royal Society for the Protection of Birds (RSPB), noted that the RSPB is more likely to engage with the Bern CFS ‘where the authorities themselves agree that an intervention would be helpful, where it’s more of a “problem solving atmosphere” and where the process doesn’t offer anything legally binding as an outcome’.⁵⁷ Thus, actors can strategically choose a more or less confrontational forum for the expression of a complaint. However, Pritchard added that complaints under the CFS may easily run in parallel with complaints made in front of other bodies.⁵⁸

While the rules for the submission of complaints to the Commission offer, on paper, a promising avenue for mobilisation,⁵⁹ in reality the procedure is riddled with participatory difficulties. NGOs have long lamented the lack of participation and transparency in the Commission’s complaints system.⁶⁰ After the submission of a complaint (the receipt of which will be communicated to the complainant), complainants are excluded from the pilot phase. Communication occurs between the Commission and the Member State only.⁶¹ Even after the formal opening of a complaint, individuals (and other civil society actors) have no right to participate in procedures under Article 258 TFEU.⁶²

The exclusion of the complainant from further stages in the case of the EC’s infringement procedure creates uncertainties for mobilising actors when viewed in conjunction with the Commission’s ability to act as gatekeeper at every stage of the procedure. Complaints by non-State actors can encourage the Commission to initiate an infringement procedure, but whether or not it is formally opened is subject to the Commission’s discretion.⁶³ This applies even where the Commission considers that a breach of EU law has occurred. Generally, the Commission states that it chooses to initiate infringement procedures only if there is an indication of a ‘systemic failure’ to comply with EU law.⁶⁴ In all other cases, the Commission pursues a decentralised approach and will generally refer the complainants to mechanisms operating at the national level.⁶⁵ This also means, in turn, that the Commission is less likely to consider cases in which the legislation has been implemented, but on-the-ground implementation is lacking, unless this amounts to a general and systemic lack of enforcement in relation to an issue area. Because of the Commission’s wide margin of discretion and the inability of mobilising actors to continue pushing for action on the part of the Commission through interventions, infringement procedures are not a reliable avenue for legal mobilisation.

These factors constitute a particularly difficult hurdle for applicants mobilising in relation to the Birds and Habitats Directives. The Commission noted in 2017 that the ‘majority of complaints made in relation to the [Directives] concern threats to individual sites’.⁶⁶ Upon request, the Directorate General for Environment stated that 1,764 complaints filed under the keyword ‘nature’ were submitted between 2009 and 2020.⁶⁷ By contrast, 412 of those cases reached the ‘formal notice’ stage and 93 complaints (roughly 5 per cent) resulted in a referral to the Court under Article 258 TFEU.

The Commission’s 2017 Communication goes on to elaborate that ‘the centralised enforcement mechanism currently available to the Commission is unsuited to dealing with such complaints, particularly in terms of speed of response, use of experts with local knowledge, and site visits’.⁶⁸ Conversely, the use of experts to carry out on-the-spot appraisals is one of the CFS’s greatest strengths. Well aware of this, the Secretariat is scaling up its efforts in this regard and has recently stated its intention to further expand its pool of experts to accommodate the widest possible range of case file processes.⁶⁹

On top of this, even where a case makes it all the way to the litigation stage, it is far from guaranteed that a Member State will rectify the unlawful situation, as the Commission’s willingness or capacity to remain active on a particular issue continues to factor into the equation. A study by BirdLife International, conducted in 2020, traced the implementation of eleven conservation-related CJEU judgments, paying particular attention to the Commission’s role in following up after the court proceedings. The survey showed that the Commission followed up on the implementation of a CJEU judgment in only four of the eleven cases studied. In three of the remaining seven cases, the Commission did not follow up despite the continuation of the harmful activity in question.⁷⁰ Unfortunately, because civil society actors find themselves outsiders in the process, their influence on the procedure ends at the initiation stage.

By contrast, civil society actors appear as active participants in the CFS’s procedure in several ways.⁷¹ First of all, non-governmental actors can act as observers in the Standing Committee, the body that decides on the handling of case files.⁷² Secondly, complainants are welcome to submit information to the Secretariat, for example in the form of reports. Third-party interventions are also possible at all stages; reports can be received in relation to open cases as well as cases in other stages of consideration (e.g., stand-by). Thirdly, civil society actors can enter directly into dynamic and in-person conversation with member States, either through mediation or within the framework of expert group meetings and other official events held within the framework of the Bern Convention.⁷³ Consequently, mobilisation through the CFS allows complainants to retain a high degree of control over complaints. As a result, actors who possess the human resources to do so can continue to exert influence over the trajectory of a case from beginning to end. This is particularly helpful in light of the CFS’s emphasis on flexibility, which is conducive to the elaboration of solutions that satisfy both the complainant and the government concerned.

Regarding flexibility of procedure, it also seems that the CFS may be better suited to deal with cases of individual non-compliance or failed enforcement, including those that do not concern ‘systemic failures’ of implementation. To this extent, a 2011 study by the Directorate General Environment pointed out that the absence of an EU inspectorate for the environment was hampering the Commission’s ability to ensure the implementation and enforcement of EU law.⁷⁴ Among other options, the study explored the possibility of emulating the Bern Convention’s model of experts, which consists of the selection of several pools of highly specialised experts (‘expert groups’) in nine distinct subject areas related to the objectives of the Convention.

Consequently, though the procedural rules of the Commission and the CFS do not preclude them from picking up the same complaints, the operational practice of these systems shows that they have developed different toolboxes for the handling of complaints. The following section illustrates this point by taking a closer look at BirdLife’s interaction with the CFS and the EC in two cases of parallel mobilisation.

11.8 Wind Farms in Balchik and Kaliakra (Bulgaria)

The case of Balchik and Kaliakra concerns the Bulgarian Government’s approval of the construction of wind farms within Emerald/Natura 2000 sites along Bulgaria’s Black Sea Coast, affecting the Via Pontica migration route, one of Europe’s important bird areas (IBA).⁷⁵ The initial complaint was filed in September 2004 with the Bern Convention’s Standing Committee in relation to the Balchik wind farm. The case had previously undergone extensive mobilisation efforts at the national level. The Bulgarian Society for the Protection of Birds (BSPB) (in an alliance of several other NGOs) had made several efforts to prevent the acceptance of an environmental impact assessment by the public body tasked with its review (the Varna Regional Inspectorate of Environment and Water (RIEW)). This included participation in a public hearing procedure organised by RIEW⁷⁶ and the submission of a petition opposing the endorsement of the RIEW’s decision to endorse the Environmental Impact Assessment (EIA).⁷⁷ Following the suspension of a case filed by the RSPB and other NGOs to challenge the RIEW’s decision in July 2004, BirdLife, the RSPB and other national NGOs submitted a complaint to the Bern Convention’s CFS outlining the events and inviting the Standing Committee to (a) open a file on the case and (b) adopt a recommendation annexed to the complaint, which contained detailed steps requested from the government to comply with its obligations under the Convention.⁷⁸ The Standing Committee responded by mandating an on-the-spot appraisal of the wind farm plant, conducted in September 2005, on the basis of which it adopted Recommendation No 117 on the plan to set up a wind farm near the town of Balchik and other wind farm developments on the Via Pontica route.⁷⁹ In the following years, BirdLife continued to monitor and report to the Standing Committee on the State’s failure to implement the recommendation.

Upon Bulgaria’s accession to the European Union on 1 January 2007, Bulgaria automatically became subject to the provisions of the Birds and Habitats Directives.⁸⁰ In early 2008, the BSPB submitted a complaint to the EC.⁸¹ Within the same year, the Commission issued two formal letters of notice to the Bulgarian State.⁸² A third letter of formal notice and a reasoned opinion were issued in 2011 and 2012 respectively.⁸³ In 2014, the Commission finally referred the case to the CJEU.⁸⁴ The judgment of the Court found Bulgaria to be in breach of the Birds and Habitats Directives in several respects. These included Bulgaria’s failure to include the IBA territories covering the Kaliakra region in the Special Protection Areas Bulgaria had established under the criteria contained in the Birds Directive, approval of the implementation of several wind power and tourism development projects in the area, and failure to properly carry out an impact assessment in relation to another six of the wind farms concerned.⁸⁵

Interestingly, the Bern Convention case file remained open during the Commission’s infringement procedure and after the CJEU’s judgment. During the proceedings, BirdLife continued to submit reports to the CFS on the Bulgarian Government’s progress in implementing the recommendations issued by the Bern Convention’s Standing Committee. The NGO also encouraged the submission of reports from other ornithological organisations.⁸⁶ In fact, mobilisation through the CFS and the consistent submission of information to the Committee has resulted in the creation of a detailed public record of the case. At the same time, BirdLife mobilised the Bern Convention’s Standing Committee in its position as an insider in the international institutional structure. More specifically, a 2010 report submitted by BirdLife requests the Standing Committee to ‘urge the [EC], immediately, to progress … the particular infringement case on lack of adequate protection of Kaliakra’.⁸⁷ This was just prior to the issuance of the Commission’s additional letter of notice.

Since the 2016 judgment, regular complainant reports have been submitted to the Bern CFS, evidencing a shift from rights-claiming to monitoring the judgment’s enforcement. It seems that in this case, due to its on-the-ground presence, the BSPB finds itself in a better position to monitor treaty enforcement than the treaty body itself.⁸⁸ Additionally, co-operation between the national NGO, its international network and the Bern Convention enables efficient flow of information between the local and the international or regional level.⁸⁹ Before 2016, complainant and NGO reports were submitted jointly to the CFS by the RSPB and BSPB. Since 2016, with the beginning of the monitoring period, all complainant reports have been submitted to the CFS solely by the BSPB – the Bulgarian arm of BirdLife with an active presence at the site in question.

In parallel, the RSPB continued its involvement in the case through its insider role within the institutional structure of the Convention. For example, in 2018, an on-the-spot appraisal (OSA) of Balchik and Kaliakra mandated by the Standing Committee was led by Pritchard, a key figure in the RSPB’s involvement through the Bern Convention.⁹⁰ The OSA mission’s report notes that the CJEU’s judgment in Case C-141/14 refrains from prescribing specific remedies or outlining in detail the actions Bulgaria should take following the judgment.⁹¹ This differs starkly from the recommendations made on the basis of the OSA itself. Despite their soft character, the recommendations are very specific, including deadlines for the submission of progress reports, funding goals and the inclusion of stakeholders in the process of implementing the CJEU judgment.⁹² In this case, parallel participation in the EU and Bern processes appears to have yielded valuable results for the NGO. BirdLife was provided with the opportunity to back its claim on the legal obligations contained in an authoritative judgment by the European Court of Justice, while remaining actively involved in the monitoring of enforcement through the complementary system of the Bern Convention via its local partners, thus leveraging the cumulative effect of both mobilisation strategies to exert pressure on the Bulgarian Government.

On top of this, the Bulgarian example demonstrates that the special status of some NGOs as key partners of the Convention means that some organisations, including BirdLife, are able to actively influence the Convention’s policy development in ways that feed back into their mobilisation opportunities. Reports submitted by the Group of Experts on Conservation of Birds and, indeed, BirdLife International in its capacity as an individual organisation, can be adopted as recommendations by the Convention’s Standing Committee.⁹³ Two years prior to the submission of the Balchik complaint, the Secretariat had tasked BirdLife International with the production of a report, completed in 2003, analysing the effects of windfarms on birds and providing guidance on environmental impact assessment and site selection criteria.⁹⁴

The Bern Convention Standing Committee regularly adopts recommendations based on reports provided by BirdLife. Recommendation No 117(2005) on the plan to set up a wind farm near the town of Balchik and other wind farm developments, on the Via Pontica route, for example, explicitly draws on the findings contained in BirdLife’s 2003 report on wind farms and birds,⁹⁵ including guidance on environmental assessment criteria and site selection issues. In the recommendation, the Standing Committee explicitly requests the Bulgarian Government to take into account BirdLife’s report and to involve and consider the views of NGOs in the performance of future environmental impact assessments.⁹⁶ The recommendations of the Bern Convention Standing Committee, despite their ‘soft’ legal form and title, are important in that they provide concrete substantive content to the Convention’s provisions.⁹⁷ Consequently, BirdLife’s involvement through the submission of information to the Bern Convention system simultaneously allows the organisation to strengthen the legal basis on which it relies in its claims.

11.9 Presumed Illegal Killing of Birds in Malta

Bird killing in Malta has been a perpetual and notorious problem. At the time of writing, in late April 2022, yet another spring hunting season draws to a close. The issue of bird killing in Malta has been subjected to international attention for more than a decade. Several distinct issues have been repeatedly brought to the attention of the Commission and the CFS: both spring hunting of quail and turtle-dove (hereafter referred to as ‘spring hunting’), and the autumn hunting and trapping of quail, turtle-dove and golden plovers, as well as song thrush (hereafter referred to as ‘autumn hunting’) and finch trapping.

In the context of the trapping of golden plovers and song thrush, and the trapping of finches, respectively, BirdLife Malta has contended that these practices should be addressed together, as the continuation of one practice risks its exploitation as a cover for the illegal continuation of the other.⁹⁸ While the Commission has addressed them separately, the CFS has treated all issues as part of a single case file. The following paragraphs therefore refer to the general CFS file at times, and to individual issues whenever possible.

The issue of spring hunting was first considered by the Commission in 2006. This culminated in a referral of Malta to the Court, which found the State in violation of the Birds Directive in its 2009 judgment.⁹⁹ In a separate infringement procedure opened in 2011, the Commission also issued a formal notice and reasoned opinion addressing the issue of autumn hunting in Malta to the Maltese Government. In 2012, an individual submitted a complaint to the Bern Convention Secretariat, alleging a violation of Articles 6–9 of the Bern Convention by the Maltese Government in relation to spring hunting.¹⁰⁰ Following the complaint, BirdLife Malta became involved in the case by submitting a reaction to the Maltese Government’s response to the complaint.¹⁰¹ Two months later, the European Union submitted a report to the CFS.¹⁰² The report first stressed the primary responsibility of the Member State and then went on to reassure the Convention’s Secretariat of the Commission’s continued attention towards the issue and communication with the Maltese Government. It specified that the Commission had received a detailed report on the hunting derogations in the 2013 season. The final paragraph then goes on to explain that no such reports had been received for the years 2009–2011 and that the Commission intended to formally request these reports in the following weeks. Although it is doubtful whether the exchange between Bern and the Commission had any practical effects (in fact, the Commission closed the case concerning spring hunting in 2015 and remained inactive in the procedure concerning autumn hunting until its closure in 2021), this dynamic further illustrates the potential use of the CFS in relation to the Commission. In this case, it seems that the CFS also functioned as a means to obtain and make public information on both the progress of the situation in Malta and the involvement of the Commission in bringing the State into compliance with its obligations.

Although this case file was never formally opened, the Bern Convention Secretariat remained engaged in the case by facilitating communication between the NGO and the government. Despite the file being kept in stand-by, mobilisation through the CFS enabled direct dialogue between the representatives of the State in question and non-governmental organisations acting as complainants. The 5th Meeting of the Select Group of Experts on Conservation of Wild Birds (2015), at which members of both the NGO and the government were present, discussed progress regarding the 2012/7 complaint concerning the presumed illegal killing of birds in Malta.¹⁰³ Thus, the Bern Convention’s expert group was able to facilitate further discussion of the complaint.

Additionally, BirdLife occasionally used the CFS where action by the EC stagnated. In a presentation before the Bern Convention’s Secretariat, BirdLife highlighted that the EC ‘appears uninterested in challenging the derogation further’ and ‘needs to impose a ban on trapping’.¹⁰⁴ Birdlife called on the Council of Europe and the parties to the Bern Convention to continue monitoring the situation to ensure progress regarding the proper implementation of both the Bern Convention and the Birds Directive.¹⁰⁵ A similar interplay can be observed regarding the problem of finch trapping, which was first picked up by the Commission in 2014. Reports to the CFS by BirdLife Malta around this time make explicit mention of the infringement procedure, asking that the ‘complaint on stand-by [with the Bern Convention] should remain open along the lines of the European Commission raising its concerns via an infringement process on the matter’.¹⁰⁶ More specifically, the NGO called on the Bern Convention to encourage the EC to stand against the Maltese Government’s derogation permitting the trapping of finches.¹⁰⁷ Significantly, in this case, BirdLife Malta also asked the Bern Convention to conduct investigations into the consequences of Malta’s derogation from the Birds Directive, precisely with a view to aiding the case pending before the European Court of Justice.¹⁰⁸ Arguably, this request indicates the perceived complementary value of the CFS’s practically oriented approach, even where CJEU proceedings are on the horizon.

11.10 Conclusion

The Bern Convention’s Secretariat is well aware of the danger posed by overlaps between the EC’s activities and its own CFS and has stressed the importance of further developing existing synergies to avoid duplication. Noting the Commission’s superior position in terms of power and resources, the Secretariat expressed some concerns regarding the added value of its CFS for EU parties. At the same time, the Secretariat highlighted the potential benefit of acting as a first point of contact for claimants and promoting action on the part of its ‘big brother’ the Commission where it cannot facilitate resolution on its own.¹⁰⁹ In the future, it is expected that the Bern Convention will seek dialogue with the Commission to ascertain how synergies can be nourished.¹¹⁰

From a legal mobilisation perspective, this would be a very welcome development. The possibility of a CJEU referral and the related threat of hefty financial penalties will never be replaced by a non-coercive compliance system. Nevertheless, this chapter concludes that less coercive compliance systems are important mobilisation venues for civil society actors. The case studies indicate that the degree of participation offered to civil society by the CFS in the handling of individual complaints and in its programme of work provides NGOs with a unique structure to mobilise the law in their triple role as policymakers, complainants and watchdogs. While still far from an ideal system of access to justice in environmental matters, it appears that actors can to some extent use the CFS to fill the gaps left by the Commission’s infringement proceedings.

12 The Right to a Healthy Environment in Latin America and the Caribbean Compliance through the Inter-American System and the Escazú Agreement

Maria Antonia Tigre

12.1 Introduction

Latin America and the Caribbean (LAC) is a region filled with paradoxes: it is uniquely biologically rich and relies heavily on primary products and natural resources, with economies driven by external commodity demands.¹ As LAC continues to pursue ‘development’,² important ecosystems and ecological processes are affected. It is also the deadliest region for environmental defenders, with countries consistently placing first in global rankings.³

At the same time, LAC is a leading region in the recognition of the right to a healthy environment, with the majority of countries having adopted a constitutional right.⁴ Furthermore, the region is characterised by strong civil society movements, including environmental NGOs advocating for stronger environmental legislation and providing broad legal representation, stimulating the improvement of laws and regulations.⁵ With LAC States’ widespread constitutionalisation of environmental rights, judges are open to new and emerging legal theories, providing an expansive interpretation of existing norms, driving innovation, and challenging legal formalism. These emerging theories, grounded in the right to a healthy environment, are being used to push national governments towards increased activity in areas lacking implementation, such as climate ambition and deforestation.⁶

Following developments in national courts, the Inter-American Court of Human Rights (IACtHR) has recognised an autonomous right to a healthy environment, thus clearly stating that cases relying on the right to a healthy environment can be heard within the Inter-American System of Human Rights (IASHR). In 2017, the IACtHR issued a landmark Advisory Opinion recognising the right to a healthy environment as ‘fundamental to the existence of humanity’ under the American Convention.⁷ The opinion is groundbreaking: it confirmed extraterritorial jurisdiction for transboundary environmental harms, the autonomous right to a healthy environment and State responsibility for environmental damage within and beyond the State’s borders.⁸ In 2020, the IACtHR declared in Lhaka Honhat Association v Argentina that Argentina violated Indigenous groups’ communal property and rights to a healthy environment, cultural identity, food, and water.⁹ For the first time in a contentious case, the Court analysed these as autonomous rights, based on Article 26 of the American Convention on Human Rights,¹⁰ and ordered specific restitution measures, including actions to provide access to adequate food and water, the recovery of forest resources and Indigenous culture. The decision marks a significant milestone for protecting Indigenous peoples’ rights and expanding the autonomous rights to a healthy environment, water and food. Cases relying on these rights can now be heard and decided on the merits under the IASHR.¹¹

Although limited to the legal context of the Americas, the decision further supported a broader campaign for the international recognition of the right to a clean, healthy and sustainable environment. In 2021 and 2022, the United Nations Human Rights Council (UNHRC) and the United Nations General Assembly (UNGA) adopted resolutions recognising the right to a clean, healthy and sustainable environment as a human right.¹² While this recognition resulted from a decades-long process and a wide-reaching international campaign, it also benefitted from the holistic approach adopted by the IACtHR. ¹³

The developments at the IASHR fully embrace the justiciability of the right to a healthy environment at the regional level, opening doors for new cases and the use of regional non-compliance mechanisms for international environmental law (IEL). In the absence of an international environmental tribunal, human rights courts are crucial for adjudicating environmental rights at the regional level. Moreover, it provides a clear path to promoting the rule of law by ensuring environmental accountability to governments in LAC.¹⁴

After a long negotiation grounded in an effective participatory process, the Escazú Agreement (Escazú) was adopted in 2018 and entered into force in April 2021. It is a landmark treaty for advancing environmental rights – and access rights, in particular – in LAC.¹⁵ The Escazú Agreement has brought a myriad of environmental rights and duties for LAC. Escazú, unlike the Aarhus Convention, contains explicitly a provision adopting a substantive environmental right. Article 4.1 notes that ‘Each Party shall guarantee the right of every person to live in a healthy environment and any other universally recognised human right related to the present Agreement.’ The explicit recognition, paired with a positive duty of States to enforce it, is crucial to the development of environmental protection in the region.

In giving expression to the idea of environmental democracy, Escazú sits alongside the Aarhus Convention¹⁶ – Europe’s 1998 Convention on environmental access rights – in implementing Principle 10 of the 1992 Rio Declaration on Environment and Development.¹⁷ Through three pillars of environmental democracy, Principle 10 recognised environmental procedural rights: (i) the right to public participation, (ii) access to environmental information, and (iii) access to justice.¹⁸ However, Escazú provides a ‘regional spin’ to Principle 10 by recognising the regional underpinnings of the universal values it expands.¹⁹ Furthermore, Escazú holds that environmental decision-making is rarely straightforward; essential in its implementation is recognising how Principle 10 applies to the region’s social, cultural, economic and environmental context.²⁰ Escazú, therefore, expands on the three traditional pillars of access rights by adding: (iv) the right to a healthy environment, (v) the protection of environmental and land defenders, and (vi) capacity building and co-operation.²¹ These additional pillars are essential in implementing environmental democracy in LAC.

Countries in LAC now face the arduous task of implementing Escazú. Environmental decision-making faces a series of distinctive challenges due to the (i) volume and diversity of environmental interests, (ii) the plurality of environmental values involved, (iii) the uncertain nature of environmental knowledge, and (iv) the complex nature of environmental risk. States in the region must facilitate the implementation of the Escazú Agreement, keeping in mind multiple regional contradictions. This is a region filled with biodiversity and progressive environmental laws which still lacks effective implementation. As Escazú entered into force, a key question emerged: How can we ensure compliance with the new rules of Escazú? Furthermore, what are the mechanisms available in the case of non-compliance?

Importantly, in this context, the Agreement established a Committee to Support Implementation and Compliance (Committee) by Parties as a subsidiary body under the Conference of the Parties (COP).²² The Committee shall be consultative, transparent, non-adversarial, non-judicial and non-punitive.²³ Considering the background briefly explained here, it is essential to develop a robust system for oversight and compliance at the regional level through the Committee to facilitate the Agreement’s success. The first COP, which was held in April 2022, adopted both the rules of procedure of the Conference of the Parties (Article 15)²⁴ and the rules relating to the structure and functioning of the Committee (Article 18(2)).²⁵ These rules provide the first step towards the implementation of the Agreement. However, many other steps for effective implementation are still ahead.

Implementation requires a series of actions at the domestic level. For example, each Party shall establish or designate one or more impartial entities or institutions with autonomy and independence to promote transparency in access to environmental information, oversee compliance with rules and monitor, report on and guarantee the right of access to information. Furthermore, each Party may consider including or strengthening, as appropriate, sanctioning powers to certain governmental entities to properly enforce the recognised rights in the Escazú Agreement within the scope of their responsibilities.²⁶

Given the broad reach of the regional recognition of the human right to a healthy environment now available in LAC, what are the best mechanisms to prevent environmental harm through the enforcement of this right? This chapter compares the existing mechanisms available under the IASHR and the implementation and compliance mechanism under Escazú. Additionally, what can we learn from the non-compliance mechanism in the Aarhus Convention? To keep with the spirit of Escazú, meaningful participation must be maintained throughout the Agreement’s implementation, so it remains a valuable living instrument. Specifically, the public should make use of and trigger the Committee on alleged non-compliance to ensure participation in its implementation.²⁷ This chapter discusses this ongoing process to increase enforcement of the right to a healthy environment in LAC. Section 12.2 discusses the right to a healthy environment in Escazú and the relevance of its express recognition. Section 12.3 debates the threat of non-compliance that may hinder the full implementation of the Agreement and the need to strengthen non-compliance mechanisms. Section 12.4 briefly goes over the newly adopted Rules of Procedure of the Committee. Section 12.5 draws lessons from the Aarhus Convention, Paris Agreement, Nagoya, and Convention on Biological Diversity (CBD) for Escazú’s Committee. Section 12.6 analyses potential overlap with the mechanisms under the inter-American human rights system. Section 12.7 concludes.

12.2 The Right to a Healthy Environment under Escazú

The substantive right to a healthy environment for present and future generations is explicitly acknowledged in Escazú as an objective of the treaty²⁸ and one of its general provisions.²⁹ Grounded in the right to a healthy environment, Escazú establishes procedural environmental rights to provide tools to implement it. Environmental access rights are rooted in the rights of present and future generations to live in a healthy environment and to sustainable development.³⁰ Article 1 fully adopts the right to a healthy environment for present and future generations, with a positive duty of each Party to guarantee such right as recognised in the Agreement. As will be detailed below, the existence of a non-compliance mechanism and the intersection with the IASHR provide teeth to the recognition of the right. By joining the Agreement, the States which have not recognised the right already at the national level join a long list of countries worldwide who have done so. This process, as noted before, is further strengthened by the international recognition of the right to a healthy environment by the UNHRC and the UNGA.

Furthermore, the inclusion of future generations in Article 1 is significant and guarantees a commitment to their survival and well-being, dependent on environmental protection. The Agreement also explicitly addresses climate change and its related impacts and requires Parties to have environmental information systems to build national capacities, including climate change sources.³¹ This is important because, considering the effects of climate change on future generations, environmental and human rights law must ensure that protection measures are in place to provide the right to a healthy environment for the future.³² For example, it can be argued that the environmental rights of future generations must be considered in environmental policies adopted by the legislative and executive branches at the national level. Additionally, with the recognition of the human right to a healthy environment, future generations can have standing to invoke the right in national (if the provision is adequately implemented at the national level) and regional courts (through the recognition in the Advisory Opinion by the IACtHR and the Escazú Agreement). Finally, this explicit acknowledgement opens the door for other rights-based cases (broadly in climate litigation but also specifically in climate litigation and biodiversity litigation) to be brought on behalf of future generations, furthering the argument of intergenerational equity. Since the role of future generations in climate litigation remains contested,³³ the inclusion of this norm in the Escazú Agreement represents a welcome advance in access to justice. However, several questions remain about how compliance mechanisms will feature future generations. For example, how can the COP ensure that the rules of procedure address their needs? Furthermore, how do the protective mechanisms in the IASHR apply to them? These questions will likely be answered as cases of non-compliance arise.

A further significant feature of the Escazú Agreement is that throughout its text, one can easily recognise its commitment to ensuring that the rights acknowledged, whether traditional human rights, the right to a healthy environment or environmental access rights, are understood as interrelated and interdependent. This is in line with the jurisprudence of the IACtHR.³⁴ Giupponi notes that within LAC, scholars consider environmental information a fundamental part of the right to an adequate environment enshrined in national constitutions, downplaying the traditional distinction between ‘procedural’ and ‘substantive’ rights.³⁵ The different theoretical underpinnings of environmental law in LAC – environmental constitutionalism, the close intersection between the international and the domestic in protecting environmental rights and the greening of Latin American constitutions in the 1980s and 1990s³⁶ – reflect the integrationist approach to the different rights in Escazú.³⁷

In essence, Escazú has a dual character. It is a binding multilateral environmental agreement (MEA) while also uniquely significant as a human rights instrument. Moreover, its approach to environmental access rights is distinctive as its implementation is sure to be reinforced through regional human rights law.³⁸

12.3 Non-Compliance in Escazú: A Work in Progress

Given the global challenge generated by the insufficient implementation of environmental norms, which is particularly relevant in LAC, States must engage with measures to bring the Escazú Agreement to life at the national level. Ultimately, the effectiveness of an international agreement like Escazú relies on the contracting Parties to implement its norms domestically. Implementing Escazú means enacting relevant laws and regulations (formal implementation) and adopting effective policies, measures and actions for Parties to meet their obligations under the Agreement. The latter includes deploying the formal machinery established by the treaty.³⁹ An additional step lies in effectively implementing the treaty on the ground.⁴⁰ Can States in LAC conform to Escazú’s different layers of compliance and implementation?

Moreover, what mechanisms are there in case of non-compliance? Several MEAs have implemented a system of compliance that accommodates the particular characteristics of international environmental law (IEL). Goote notes that IEL compliance requires (i) flexibility in applying rules open to diverse interpretations, (ii) operating in a dynamic regime that is unceasingly evolving, (iii) an ongoing process, (iv) sensitivity to conflicting political and economic interests, and yet (v) a certain level of predictability and procedural transparency to be considered legitimate and fair.⁴¹ Non-compliance procedures in IEL attempt to find a compromise between flexibility and stability and between diplomacy and law.⁴²

The Escazú Agreement envisions several mechanisms for implementation and compliance. For example, in the context of access to environmental information, Article 5(18) establishes parameters for independent oversight mechanisms within each member State ‘to promote transparency in access to environmental information, to oversee compliance with rules, and monitor, report on, and guarantee the right of access to information’. While subsequent provisions create mechanisms for voluntary information sharing and assistance with implementation in developing States, overall, the Agreement leaves oversight mechanisms to the discretion of each national system.⁴³ Implementation of Article 5(18) is likely not going to be straightforward. Nevertheless, transparency of oversight mechanisms is essential. It has been recommended that State Parties ensure adequate transparency in compliance and oversight mechanisms under the Agreement. This can be done, for example, with a thorough explanation of how the compliance system functions, the values it enshrines and the potential remedies it offers. Furthermore, ‘[s]uch transparency measures should be designed with an understanding of the languages used throughout the region and in each State – including Indigenous languages – to optimise inclusion and awareness’.⁴⁴ Without further guidance from the COP, there is a danger that countries will quickly fall into non-compliance with Article 5(18). Nevertheless, future COPs may delineate parameters of compliance and best practices to facilitate implementation of these issues, rather than solely relying on national regimes to set up parameters of public participation in environmental decision-making and lawmaking.⁴⁵

One core difficulty in implementing the Agreement is the access to justice problem. In LAC, a large section of the population still lacks full and equal access to justice. Despite advances in the scope and autonomy of courts with constitutional jurisdiction, rights protection remains highly uneven across geographic and social divides.⁴⁶ Citizens’ perception of the justice system remains pervasively hostile, and cases sometimes take years – even decades – to reach a final decision. Comprehensive environmental protection essentially involves the representation of NGOs, civil society organisations and individuals. Escazú is already a step ahead of regional arrangements in Europe by promising civic engagement in all aspects related to compliance with the Agreement. In contrast, civic engagement in implementing the Aarhus Convention is restricted by excluding NGOs as claimants at the European Court of Human Rights (ECtHR).⁴⁷

Transparency across the region will be crucial in helping ensure a robust implementation of the Escazú Agreement. Article 12, providing for creating a clearing house mechanism for member State laws, rules and policies on access rights, is a crucial step, as seen in the clearing house systems effectively deployed by other treaty regimes. However, this lacks an authoritative or evaluative function. Perhaps the most critical examples of how clearing houses can function as oversight tools come from the Convention on Biological Diversity (CBD),⁴⁸ where the Nagoya Protocol on Access and Benefit-sharing⁴⁹ establishes a dedicated clearing house of relevant national legislation (the Access and Benefit-sharing Clearing house). In addition, the Cartagena Protocol on Biosafety⁵⁰ establishes a similar entity for laws and rules relating to biosafety issues. Subsequent COPs may draw on these models to further develop the Escazú clearing house mechanism.

12.4 The Committee to Support Implementation and Compliance: Rules Relating to Its Structure and Functions

Critically, the Escazú Agreement establishes a Committee to Support Implementation and Compliance (Committee) as a subsidiary body under the COP. The parameters of the Committee’s work are quite broad in that it is tasked with reviewing compliance with provisions of the Escazú Agreement. The Committee is to be ‘consultative and transparent [in] nature, non-adversarial, non-judicial and non-punitive’ and ‘review compliance of the provisions of the present Agreement and formulate recommendations’. In addition, the Committee’s structure and function are to follow the rules of procedure established by the COP, ensuring the significant participation of the public and paying particular attention to the national capacities and circumstances of the Parties.⁵¹

As referred to above, in April 2022, Escazú’s first COP adopted the Rules relating to the structure and functions of the Committee to Support Implementation and Compliance (Rules).⁵² However, the Rules represent a work in progress. Therefore, the COP requested the chair, with the support of the secretariat, to begin consultations with the States Parties, with significant participation of the public, to examine the compatibility of the proposed text of the Rules with the agreed language of the Agreement, to fine-tune the Rules relating to the structure and functions of the Committee and, as appropriate, consider them at the next COP, in order to enable the strengthened implementation of the Agreement.⁵³

The Committee is composed of seven members elected by consensus and serving four years (renewable), with equitable geographical distribution (and no more than one member of the same nationality), gender parity, legal knowledge and experience.⁵⁴ The public may participate and contribute to factual or legal aspects of cases of non-compliance.⁵⁵ Deliberations on cases of non-compliance are to be held in closed sessions. In these cases, the Committee shall provide the session’s conclusions ‘as soon as possible’.⁵⁶ Decisions are to be made by consensus and a two-thirds majority in its absence.⁵⁷

With respect to its functions, the Committee shall: (i) provide a report to the COP, including observations in cases of non-compliance, (ii) support the COP on implementation and compliance, including providing a systemic report on implementation and compliance and reports requested by the COP on any aspect of implementation and compliance with the Agreement, (iii) provide advice and support to Parties on implementation and compliance, including by formulating general comments on the interpretation of the Agreement, responding to queries on the interpretation of the Agreement, engaging in periodic consultations and dialogues with Parties and opening dialogues with Parties and members of the public, and (iv) examine cases of alleged non-compliance.⁵⁸

In addition, Parties or members of the public may file communications requesting support for compliance or alleging non-compliance with provisions of the Agreement.⁵⁹ The envisaged inclusion of the Agreement’s non-compliance procedures of members of the public significantly expands the scope and reach of environmental democracy. Questions of admissibility or merits may be decided without a hearing, but the Party concerned or the author of the communication may request one.⁶⁰

Members of the public will have multiple opportunities to engage in non-compliance procedures (in addition to the other functions of the Committee), including through written observations on factual or legal aspects of a non-compliance case (including the implementation of the outcome of consultations with the Committee by the Party concerned), and participation in any public hearings on non-compliance cases.⁶¹ The Party concerned and the author of the communication have the right to request a hearing on the admissibility of a communication and on the merits of the case, and Committee will decide whether to grant the request.⁶² However, to further civil society participation, it has been recommended that members of the public and civil society organisations be permitted to offer comments in the admissibility and merits, participate in the proceedings and have full access to the Committee’s decisions.⁶³ Throughout all stages of the complaint review, evaluation and decision-making processes, the Committee should ensure adequate avenues for members of the public and civil society organisations to observe and participate.⁶⁴ The adoption of the rules of procedure fully endorsed these recommendations, as the chapter outlines further.

The Committee will deliberate on allegations of non-compliance and adopts preliminary observations on a case, including specific recommendations for the Party concerned.⁶⁵ Parties can then submit written comments on the preliminary observations, after which the Committee adopts final observations and measures, and makes recommendations.⁶⁶

The Committee will provide reports to the COP on its activities, including its observations in cases of non-compliance.⁶⁷ After the Committee adopts certain measures and makes recommendations, it will present its conclusions to the Party concerned and the author of the communication.⁶⁸ When appropriate, the Committee will also monitor the implementation of recommendations.⁶⁹ If the Committee concludes that the Party concerned has failed to implement the Committee’s conclusions and recommendations, it will report the case to the COP.⁷⁰

In assessing and facilitating the implementation of and compliance with the Agreement, the Committee shall consider the national capacities and circumstances of the Parties. Additionally, the Committee shall consider the cause, type, severity and frequency of non-compliance.⁷¹ Measures that can be adopted include: (i) observations on cases, (ii) recommendations to strengthen laws, measures and practices, (iii) requests for action plans on implementation, (iv) requests for a report on progress with recommendations, (v) advice and support, and (vi) recommendations to adopt measures to safeguard environmental defenders.⁷² In addition, the COP may take such measures as it deems necessary to facilitate implementation and compliance through (i) formulating declarations of non-compliance by a Party, (ii) facilitating support for compliance, (iii) issuing cautions, and (iv) suspending the rights and privileges of a Party, including voting rights.⁷³

The Rules provide an initial framework for non-compliance, which will likely change and evolve. In any case, the Committee may not receive communications on compliance before the closure of COP2, which will likely happen in 2024 (ordinary meetings are held at least once every two years).⁷⁴ Furthermore, when the Agreement enters into force for other Parties joining, there is a one-year moratorium before a communication on a Party’s compliance can be received by the Committee.⁷⁵ With the current framework and the ‘learning process’ frame of the institutional set-up of the Committee, there are several lessons to be learned from other non-compliance structures of existing MEAs.

12.5 The Committee to Support Implementation and Compliance: Drawing from the Aarhus Convention, Paris Agreement, Nagoya and CBD

Much of the terminology related to the Committee in the Escazú Agreement echoes existing oversight and compliance mechanisms ranging from those used for the Aarhus Convention and Minamata Convention, to the Paris Agreement on Climate Change.⁷⁶ As such, Escazú shares significant features with other agreements. Compliance procedures, including compliance committees, have become a common feature of MEAs. These represent a response to general and individual compliance issues based on problem-solving through negotiation to identify a flexible and pragmatic multilateral solution to questions of treaty interpretation and alleged breaches.⁷⁷ Compliance mechanisms are more fundamentally geared towards promoting future compliance rather than punishing past non-compliance, aiming to boost the regime’s effectiveness and facilitating multilateral solutions.⁷⁸ Nevertheless, compliance mechanisms provide an opportunity for the international community to put pressure on non-compliant Parties.⁷⁹

The Aarhus Convention’s compliance mechanisms have assisted Parties and their citizens in implementing rights and crafting laws and rules that comply with the treaty’s terms. Aarhus’ experience shows that an independent, professional compliance committee can act as an effective means for regime development.⁸⁰ Distinctive features of the compliance mechanism in Aarhus include the public trigger (i.e., the public can trigger a complaint) and the requirement of prior exhaustion of remedies (a soft admissibility requirement).⁸¹ However, the decisions of its compliance committee are subject to consensus approval by the Convention’s governing body, implicitly giving veto power to the Party whose compliance issues are at stake.⁸² Escazú has significantly improved upon this provision. While decisions of the Committee are to be made by consensus, in the absence of consensus, a two-thirds majority suffices.⁸³

The Paris Agreement’s Implementation and Compliance Committee⁸⁴ has only recently begun to operate. Its recently established modalities and procedures exemplify how to bridge different views of multiple State Parties to craft a meaningful oversight entity even in the absence of significant treaty-based guidance.⁸⁵ As in the case of the Escazú Committee, the Paris Committee’s function is to address implementation and compliance issues in a facilitative rather than punitive manner.⁸⁶

The Aarhus Committee’s well-established system of doing this could serve the Escazú Committee well as a model, given the sensitivity of the issues subject to its jurisdiction and the need to ensure that State Parties work with the Committee to ensure compliance rather than establishing a relationship based on antagonism. At the same time, the transparency of the Aarhus Committee’s decision-making process, including making all decisions publicly available, can serve as an example of how the public can be assured that the oversight process for Escazú is focussed on ensuring that the treaty regime’s terms are put into effect for the benefit of all.

The Nagoya protocol’s mechanisms could also provide valuable insights, given its unique engagement with Indigenous and local communities, which is essential in the context of LAC. An innovative idea could be to establish an ombudsperson to support vulnerable persons and Indigenous and local communities in identifying breaches of rights and providing independent technical and legal support in ensuring the adequate redress of such breaches. The Global Network for Human Rights and the Environment (GNHRE) Principles have suggested inclusive and non-discriminatory participation in the development and implementation of environmental law of Indigenous communities and vulnerable communities, either directly or through representatives such as civil society organisations, legal organisations and legal representatives.⁸⁷ This emphasis on inclusivity and non-discrimination is particularly valuable given the threats faced by human rights advocates and defenders, land rights activists and Indigenous community leaders throughout LAC, coupled with the many ways in which access to justice and public participation have been hobbled throughout the region due to the Covid-19 pandemic.

12.6 Non-Compliance Mechanisms under the IASHR: Overlap

Another critical discussion in developing the Escazú Agreement’s non-compliance machinery relates to potential overlap with the IASHR.⁸⁸ Implementing environmental access rights in LAC has primarily advanced through public interest litigation before regional human rights courts.⁸⁹ The IASHR is pledged to protect, promote and monitor human rights in the thirty-five Latin American States that comprise the Organization of American States (OAS).⁹⁰ The IASHR fulfils this responsibility through two principal bodies: the Inter-American Commission on Human Rights (IACHR)⁹¹ and the Inter-American Court of Human Rights (IACtHR).⁹² Each of these entities can hear individual complaints of alleged human rights violations and may issue emergency protective measures where the subject of a complaint risks immediate irreparable harm. In addition, an OAS organ or member State may seek the Court’s advisory opinions on interpreting the IASHR instruments. The Commission undertakes human rights promotion, monitoring, established rapporteurships and publications for the region. The rules of procedure for the Escazú Compliance Committee generally reference the option of the Committee entering ‘into dialogue and consultations with other multilateral agreements, institutions, and processes, at the global or regional level, to seek synergies for the full implementation of access rights and other matters covered by the Agreement’.⁹³ This may include synergies with the IASHR, although such synergies are in their very early stages and will likely develop in the future.

A significant body of jurisprudence on environmental access rights is available in the IASHR.⁹⁴ Litigation of environmental rights has seen considerable development in recent years. Significantly, the OAS was not endowed with an environmental protection role, yet the pervasiveness of environmental degradation placed the topic on its agenda.⁹⁵ One significant aspect of the agenda is the implementation of MEAs and environmental treaties, which is the focus of the OAS work programme on the Environmental Rule of Law in the Americas.⁹⁶ In addition, the IASHR has offered the possibility of discussing IEL compliance related to human rights, including concerning Indigenous peoples’ rights and the protection of environmental defenders, which are at the core of Escazú. Finally, the Commission and the Court have developed a substantive case law related to the rights to consultation and – more recently – protection of the environment.⁹⁷

Importantly for this chapter’s discussion of the overlap between Escazú and the IASHR, the Inter-American Court of Human Rights has a specific rules-based non-compliance function. After the Court makes specific orders about a State in a particular case, it then tracks that State’s implementation of its orders: this is the most direct example of the Court’s non-compliance function.⁹⁸ Beyond this follow-up for specific cases, the IASHR also maintains an accountability function where it evaluates and monitors the human rights records of OAS member States through an independent commission that monitors whether States are complying with their international human rights obligations.⁹⁹ More broadly, the Inter-American Commission promotes the observance and defence of human rights in the Americas through country visits, thematic activities and initiatives, preparing reports on the human rights situation in a specific country or on a particular thematic issue, adopting precautionary measures or requesting provisional measures before the Court, and processing and analysing individual petitions to determine States’ international responsibility for human rights violations.¹⁰⁰

The Court’s development of its practice and the granting of remedies is also significant. The Court has widely expanded its reparation orders beyond monetary compensation to victims: it has issued reparations in the form of demands for State reforms, criminal prosecution of individuals who have violated regional human rights and even symbolic reparations, such as calling for the erecting of memorials. However, some scholars argue that these non-compliance mechanisms are weak since the Court does not have a specific mandate for enforcement or political compliance mechanisms that would better hold States accountable in implementing the Court’s orders.¹⁰¹ As a result, compliance with the rulings and recommendations from the Commission and the Court remains low, and partial compliance is an expected outcome. The long procedural development of cases, paired with the low enforceability of decisions, also hinders hearing cases before the IASHR. All these factors limit the impact of the IASHR and undermine its legitimacy and authority. However, complaints continue to rise, reinforcing the importance of the system.

The participation of NGOs has been limited under the San Salvador Protocol, although NGOs can submit complaints to the IACHR.¹⁰² However, individuals and regional human rights organisations’ access has strengthened over time as the IASHR system has become increasingly judicialised, with a procedural focus on legal argumentation and regional human rights jurisprudence.¹⁰³ One significant limitation is that petitioners have to reasonably exhaust the remedies available within the domestic legal system, thereby limiting IASHR judicial intervention to cases where domestic laws and courts have not adequately protected rights and principles. Additionally, the IASHR has to consider where due process rights in the American Convention have been breached and at what point domestic courts have acted arbitrarily.¹⁰⁴

While the possibility of direct access for the public to the Escazú Compliance Committee was envisioned in earlier drafts of the Agreement, it was deleted from the final version due to some Parties’ reluctance.¹⁰⁵ Nevertheless, it reappeared in the Rules of Procedure of the Committee, which established that a member of the public may file a communication requesting support for compliance or alleging non-compliance with provisions of the Agreement.¹⁰⁶ An analysis of experience under the Aarhus Convention shows the relevance of the public’s ability to submit communications of non-compliance to the Committee. At the time of writing, over 190 communications have been presented before the Aarhus Committee by the public, while only two by States regarding other States’ compliance, and one by a State regarding its own compliance.¹⁰⁷ This background reinforces the relevance of ensuring broad participation and the significance of the Escazú COP’s decision on access to the Committee. In addition, it may be noted that a group of civil society organisations submitted recommendations for rules governing the structure and functions of the Escazú Committee.¹⁰⁸ Furthermore, paragraph 12(c) of said recommendations explicitly suggested the possibility of communications from the members of the public being brought regarding a Party’s compliance with the Escazú Agreement. This input may have helped to bring about the COP’s decision to allow public communications to the Committee.

Alongside regional bodies, other sub-regional judicial or quasi-judicial bodies created in the framework of regional integration processes, such as the Central American Court of Justice, the Andean Court of Justice or Mercosur arbitral tribunals, may offer an additional forum for the implementation of environmental access rights.¹⁰⁹ However, these bodies have rarely addressed environmental matters. The Caribbean Court of Justice (CCJ) could become an essential avenue for implementing environmental rights, as most Caribbean States have not accepted the jurisdiction of the IACtHR.¹¹⁰

With the Escazú Agreement in force, there is an opportunity for the legal framework of the IASHR and Escazú to work together and strengthen the democratisation of environmental governance in LAC. Escazú reinforces principles and obligations established in the inter-American legislation and jurisprudence on the right to a healthy environment, highlighting the need to guarantee access rights to ensure their validity. However, how will these complementing regimes interact in practice? Noroña notes the risk of conflicting petitions or multiple claims in different forums, reinforcing the need to understand the Committee’s consultative and transparent, non-adversarial, non-judicial and non-punitive nature, which only allows it to formulate recommendations and would, in theory, not conflict with the mechanisms in the IASHR.¹¹¹

The Committee is not a court and does not issue binding decisions, even if its opinions, as per the example of Aarhus, provide an authoritative interpretation of its provisions. Nonetheless, as a human rights treaty, Escazú can be invoked within the human rights protection system of the OAS.¹¹² This means that the mechanisms within the IASHR are available to those who seek to enforce the Escazú Agreement. The relationship between the Escazú Agreement and the IASHR is similar to that between the Aarhus Convention and the European Convention on Human Rights (ECHR), including as it pertains to the jurisprudence of the European Court of Human Rights (ECtHR). Countries could thus be called on to answer for access rights within the IASHR.¹¹³ This possibility significantly expands the available enforcement mechanisms under Escazú through reliance on an already established regional human rights system with decades of development. However, it should be noted that the expectation of vigorous enforcement of the Aarhus Convention by the European Court of Justice has not yet come to fruition.¹¹⁴

12.7 Conclusion

The Escazú Agreement was adopted based on broad and effective public participation and came into force with great fanfare. Escazú recognises explicitly the right to a healthy environment and has been lauded as a progressive Agreement, and there is much expectation that it will bring change to the region. One of the biggest challenges in implementing the Escazú Agreement will be overcoming LAC’s tendency to adopt broad-minded legislation but implement it at a slow pace. This chapter advances some of the questions about how to facilitate the implementation of the rights, rules and principles included in the Agreement. Specifically, it addresses the implementation of the recognised right to a healthy environment. Building a system for oversight and compliance at the regional level is essential in ensuring compliance. This system should be flexible yet provide a reliable and stable response to claims. This chapter has highlighted the initial progress made at the first Escazú COP, including adopting the Rules for the Committee to Support Implementation and Compliance. In addition, the chapter has drawn on experience under other MEAs, analysed the potential overlap with regional human rights systems and provided suggestions for moving forward. To a certain extent, the compliance procedures and mechanisms established under Escazú share features that have become commonplace across MEAs.¹¹⁵ However, some distinctive features of the Agreement – including its regional underpinnings – will likely lead Parties to consider innovative approaches to multilateral compliance procedures and mechanisms. The next few years will be essential in delineating the parameters of the Agreement so that it brings effective positive environmental human rights developments to the region.