As our world faces increasing environmental challenges, from climate change to biodiversity loss, the need for effective environmental protection becomes more urgent. Indeed, the UN General Assembly recognized the right to a clean, healthy and sustainable environment as a human right. However, significant challenges remain in implementation of the states’ obligations and businesses’ responsibilities.

In 2021, a groundbreaking treaty called the Escazú Agreement came into force in Latin America and the Caribbean, introducing innovative ways to protect both nature and the people who defend it.

Dr. Claudia Ituarte-Lima and Dr. Radu Mares at the Raoul Wallenberg Institute of Human Rights and Humanitarian Law, affiliated to Lund University, have conducted research examining how this regional treaty works alongside European Union trade laws. Their work reveals various interactions that could either help or hinder environmental protection.

The Escazú Agreement represents a new approach to environmental democracy in Latin America and the Caribbean. Ituarte-Lima and Mares identified several innovative features that make the Escazú Agreement unique in international law. First, it is a legally binding treaty that recognises the right of every person of present and future generations to live in a healthy environment and to sustainable development. The means to achieve this is through access rights which function as a key to open an enabling environment to exercise other rights. These rights are rights to access environmental information, participate in decision-making about the environment, and have access to justice when environmental protections are disregarded.

Second, what makes this agreement particularly noteworthy is the explicit rights of environmental human rights defenders – people who work, often at great personal risk, to protect nature and environmental rights. Third, it introduces new ways for the public to participate in environmental decision-making, including having representatives from civil society organisations sit at the main table during treaty meetings – an unprecedented level of public involvement in international environmental law.

A fourth innovation is on open information: the Escazú Agreement negotiations towards the creation of this treaty were broadcast live with significant participation of the public, which represents a departure from traditional international treaties, where these types of negotiations often remain behind closed doors.

Fifth, the agreement also creates a new system for sharing environmental information across countries. This includes a “clearing house” mechanism where countries can share laws, policies, and court decisions related to environmental protection emerging from Latin America and the Caribbean, and also with global scope. This approach to information sharing which involves legal and policy advances rooted in the region and internationally delivers a repository with contextually relevant information for improving environmental law and governance.

A sixth innovation covers compliance monitoring. Unlike many international treaties where only governments can report on progress, the Escazú Agreement allows members of the public to submit information about whether countries are meeting their obligations. This creates a more democratic and transparent system for ensuring countries follow through on their environmental and human rights commitments.

Ituarte-Lima and Mares then examined how these innovations interact with three types of EU economic laws: forestry legislation, free trade agreements, and corporate responsibility rules. This interaction is crucial because many environmental problems stem from international trade and business activities. For instance, deforestation in Latin America is often driven by demand for products in Europe. How might EU economic law affect the ways in which the Escazú Agreement can be implemented?

The researchers identified both opportunities and challenges in how these different legal systems interact. On one hand, while EU trade laws have evolved to include more environmental protections, these don’t always align perfectly with the Escazú Agreement’s approach. For example, the EU Deforestation Regulation now requires companies to ensure that 7 commodities, such as timber, coffee or beef, that they import into the EU haven’t contributed to deforestation, but this law doesn’t explicitly mention environmental defenders and protects human rights only marginally given that the requirement is to merely observe national laws.

A second example comes from the EU’s new Corporate Sustainability Due Diligence Directive, which requires large companies to check their business operations for environmental and human rights problems. While this law could support the Escazú Agreement’s goals by making European companies more accountable for their environmental impact in Latin America, it has limitations. Thus, the Directive often mentions stakeholder engagement throughout the due diligence process, but it doesn’t go as far as to recognise actionable rights for people to be involved in corporate decision-making. Indeed, the directive allows companies to control how they involve affected stakeholders in their assessment process, rather than giving individuals and communities the strong participation rights that the Escazú Agreement envisions.

A third example refers to access to justice – that is, the ability to seek legal remedies when environmental rights are violated – which remains limited in EU trade agreements. These agreements leave enforcement up to governments rather than allowing affected stakeholders to seek justice directly.

These examples show how even well-intentioned EU laws might not fully align with the kind of environmental democracy that Latin American and Caribbean countries are trying to create.

On the positive side, EU trade agreements increasingly include chapters on sustainable development, requiring trading partners to protect the environment and labour rights. Such trade arrangements create participatory spaces for civil society groups so they can monitor and advise governments on how to make trade exchanges more beneficial. Furthermore, several EU laws now require companies to undertake due diligence across their supply chains to identify or address environmental and human rights problems. In principle, that should reduce the negative impacts of EU trade and business operations and create new economic incentives for sustainability, which could help support the goals of the Escazú Agreement. Finally, such EU trade laws mention cooperation between states and the need for EU to support its trade partners affected by these new due diligence and trade requirements,

Environmental problems don’t respect national borders, so solutions need to work across regions. For example, protecting the Amazon rainforest – crucial for global climate stability – requires cooperation between Latin American countries where the forest is located and also with European countries whose consumption patterns affect deforestation, human rights and livelihoods in the region.

Looking forward, Ituarte-Lima and Mares suggest several ways to strengthen the interaction between these different legal systems. They recommend that EU trade laws, inspired by the Escazu Agreement, incorporate stronger protections for environmental defenders and strengthen access rights for affected right-holders including when environmental protections are disregarded by EU actors. They also suggest that the Escazú Agreement could be strengthened by having access rights explicitly relate to corporate due diligence at all stages mentioned in EU laws.

The study highlights how environmental democracy is evolving across environmental law and EU economic law. While the Escazú Agreement emphasises protecting the rights of environmental defenders and access rights, EU economic laws focus more on principles and creating specific obligations for businesses and trade. Understanding these different legal approaches is crucial for advancing effective environmental protection that works across borders.

 Ituarte-Lima and Mares conclude that environmental democracy requires both strong legal protections and practical cooperation between regions. They emphasise that, while the interplay between the Escazú Agreement and EU trade laws has gone under the radar of many academics and practitioners, considering the interactions between these treaties is key for protecting the environment and human rights in our interconnected world.

This research opens new possibilities for understanding how different regions can work together to identify dilemmas, address trade-offs and find feasible ways to catalyse human rights for environmental stewardship for present and future generations.

The study suggests that by learning from each other’s innovations and addressing each other’s limitations, regions and distinct bodies of law can advance toward ecological and social justice. In particular, they argue that if the EU is serious about supporting Latin American and Caribbean countries to facilitate implementation of the Escazu Agreement as per the 2021 EU Parliamentary Resolution, EU learning about this regions’ understandings and innovations on environmental democracy is vital and part of the journey of multilateralism for the realization of the right to a healthy environment for everyone, everywhere.