TNRC Colombia case study
A Tragically Necessary Treaty
The Escazú Agreement is one of a kind.[1] It was the first environmental treaty among the countries of Latin America and the Caribbean, and the first treaty anywhere to explicitly include the protection of environmental and human rights defenders (EHRDs). With more EHRDs murdered in Latin America than anywhere else in the world, the protections in the Escazú Agreement are desperately needed. And with almost half of all EHRD murders in 2022 taking place in Colombia, the protections in the Agreement are particularly necessary for this country.
In addition to protecting EHRDs, the Agreement has three other interrelated and mutually supporting thematic pillars: access to environmental information, public participation in environmental decision-making, and access to justice in environmental matters.
An Anti-Corruption Agreement?
The Escazú Agreement is not an explicit anti-corruption treaty; its text does not mention corruption at all. However, corruption is closely linked to the problems the Agreement seeks to address, and the four pillars of access to information, public participation, justice, and protection for EHRDs all contribute to anti-corruption outcomes. As one concrete example, in 2021, WWF Colombia carried out a detailed analysis of the corruption and crime-related drivers of deforestation, forest degradation, and biodiversity loss in the country. That analysis found that “a suitable response for mitigating and preventing corruption and the proliferation of organized crime” would be “robust governance, based on the principle of transparency,” for which “the ratification of the Escazú Agreement would be the cornerstone.”
Table 1 shows a few additional high-level examples of how the Escazú Agreement’s principles relate to anti-corruption.
Table 1: The Pillars of the Escazú Agreement and Anti-Corruption
Pillar of Escazú Agreement | Anti-Corruption Outcomes |
Access to environmental information: timely, comprehensible information about natural resources and environmental management and protection. | Reliable, accurate, publicly verifiable information about, e.g., protected area revenues, timber traceability systems, and fishing vessel beneficial owners makes it harder to use corrupt methods to divert resources, launder illicit products, and overfish without consequence. |
Public participation in the environmental decision-making process: input on and oversight of authorizations, permits, and planning processes for any activities that might significantly impact the environment. | Involving the public in making and monitoring decisions about, e.g., forestry resource use and infrastructure planning helps ensure those decisions ultimately are for the public good and identify and address if decisions are made just for private gain. |
Access to justice in environmental matters: effective, accessible judicial and administrative procedures to challenge decisions or actions that could harm the environment. | Effective courts, law enforcement integrity, and whistleblower protections help identify and sanction environmental crimes. If corruption can make investigations or sentences simply “go away,” the environment can be pillaged with impunity. |
Human rights defenders in environmental matters: adequate and effective measures to recognize and protect the rights of EHRDs (preventative) and investigate and punish attacks or threats against EHRDs (reactive). | EHRDs are at the front lines of revealing and stopping environmental crimes, often enabled by corruption. Allowing EHRDs to be attacked or intimidated is a way for corrupt actors to protect their ill-gotten gains and power. |
At a crosscutting level, overcoming exclusion and supporting inclusion underpin all four pillars. The Agreement’s official full text publication makes the point clearly and powerfully. The “Agreement recognizes core democratic principles and seeks to address the region’s most important challenges, namely the scourge of inequality and a deep-rooted culture of privilege” notes the then-Executive Secretary of the Agreement’s secretariat in her preface (emphasis added).
Through transparency, openness and participation, the Regional Agreement contributes to the shift towards a new development model and tackles the region’s inefficient and unsustainable culture of narrow, fragmented interests. In that vein, the Agreement vows to include those that have traditionally been underrepresented, excluded or marginalized and give a voice to the voiceless, leaving no one behind.
In other words, the Escazú Agreement is about preventing the abuse of power for private gain that results in environmental harm (corruption) through increasing the power of affected stakeholders like Indigenous Peoples (IPs) and local communities (LCs) over environmental decisions.
Colombia’s Black Communities and Law 70 of 1993
Shifting power dynamics in favor of IPs and LCs is often shorthanded to “inclusive conservation.” This inclusive conservation was the focus of WWF Colombia’s approach, centered on a law called “Law 70.”
Colombia’s Law 70 was a tremendous promise for inclusive conservation. It recognized many rights of Colombia’s Black communities[2] and created a legal pathway for those communities to receive collective title for their land. However, fulfilling the “promise” has been elusive; the chapters of Law 70 dealing with land use, natural resource protection, and special mining regimes were not implemented for 30 years. Some Afro-Colombian stakeholders saw “corruption,” including clientelism, rent-seeking, and opaque campaign donations, as a main cause of the delay.
Notwithstanding the decades it took, decrees in 2023 finally implemented these critical chapters of Law 70 and contained several important advances.
Decree 1384, implementing Chapter IV of Law 70, included:
- resources for land restoration and recuperating traditional knowledge;
- mechanisms for creating special nature reserves; and
- new participatory mechanisms for watershed management.
Decree 1396, implementing Chapter V of Law 70, included:
- communities’ right of first refusal for titles and permits; and
- special concessionary mechanisms officially permitting traditional forms of mining.
Consultation, Consultation, Consultation
The main intended output of WWF Colombia’s activity for TNRC was a technical report evaluating Decrees 1384 and 1396 in terms of the four pillars of the Escazú Agreement. The Agreement was passed into law in November 2022, but as of writing was being reviewed by the country’s Constitutional Court. Much like Law 70, then, the real impact would be in how the law was codified and put into practice. WWF Colombia sought to inform that implementation with their technical report.
To prepare that document, the team focused on a series of three in-depth consultations, spanning stakeholder categories. All the relevant government ministries, multiple universities, environmental and legal civil society organizations, and several mining cooperatives took part. Participants raised practical concerns, like making sure the decrees come with the necessary resources to be applied and enforced, and ethical ones, highlighting the “social debt” the decrees and Law 70 needed to address. Participants were both critical and constructive, and the multiple perspectives shared at each consultation helped sharpen the thematic focus of the report.
Insights from Afro-Colombian Communities
WWF Colombia drew from deep connections and ongoing projects to listen to and incorporate the perspectives of Afro-Colombian communities. For example, a participatory monitoring initiative connects communities affected by mining and the local Technological University of Chocó, while another project, “Mercury-Free Colombia,” strengthens community governance with a focus on female artisanal miners in parts of the country affected by corruption-enabled illegal mining activities.
Strengthening communities’ ability to negotiate with powerful state and private interests and participate in environmental decision-making can reduce their vulnerability to corrupt practices and is exactly the type of environmental democratization that the Escazú Agreement envisioned. Full implementation of the Escazú Agreement would mean that these projects’ goals would become legal obligations, across the entire country. That potential is what prompted WWF Colombia’s research evaluating the two decrees in light of the Escazú Agreement’s principles.
Results of WWF Colombia’s Research
See WWF Colombia's Escazu Report here.
WWF Colombia’s technical report is available here, in Spanish.
The report “identified a clear pattern” of “inadequate or inexistent access to environmental information….” While the first decree (on land management) contained some promising participatory elements, the second decree (on mining) had only two relatively small guarantees.
Against those findings, WWF Colombia recommended several concrete reforms to strengthen access to information, participation, and justice around environmental and mining topics. A few examples include:
- Establishing an environmental function in the offices of the National Ombudsman (Defensoría del Pueblo), the government body charged with defending human rights in the country. There are offices and points of contact in each region of Colombia.
- More clearly defining the access to environmental information responsibilities of the Ministry of Environment and Sustainable Development.
- Adjusting prior consultation methodologies to better align with the traditions, procedures, and cosmovision of Afro-Colombian and other local and ethnic communities.
- Establishing a clear system that notifies potentially affected third parties (i.e., communities) when environmental licenses are being considered, so that those affected can more effectively participate in the decision.
Such reforms would help Colombia comply with the Escazú Agreement and improve environmental governance, including addressing the lack of transparency, participation, and justice that make corruption too easy and attractive in this lucrative and globally critical sector. Most importantly, however, the reforms WWF Colombia recommended would help deliver better conservation outcomes, improve community well-being, and promote environmental justice for Afro-Colombians.
Towards a Better Future
WWF Colombia will continue their advocacy for finalizing the ratification of the Escazú Agreement, its full and effective implementation, and the values of transparency, participation, and access to justice in environmental matters. Through other projects and partnerships, they are picking up where the TNRC pilot project ended, and the team is finalizing infographics, social media features, WhatsApp “audiograms” and short videos centered on the importance of the Agreement and its principles for the people and nature of Colombia.
As WWF Colombia put it in the conclusion of their technical report:
“The rights of access to information, participation, and justice in environmental matters are fundamental for guaranteeing the right to a healthy environment and for the development of mining activities with respect for the human rights of Afro-Colombian communities. To that end, the Escazú Agreement is a tool, a focus on human rights that allows laws, rules, and policies related to the environment to be analyzed from a combination of obligations and international standards that put capacity building and vulnerable people in the center. The Escazú Agreement is definitively an opportunity to move towards a more just sustainable development, peace with nature, and better protections for environmental and human rights defenders.”
[1] Negotiated from 2012 to 2018 and entering into force in 2021, the Escazú Agreement is a binding, regional commitment of the countries of Latin America and the Caribbean to “the full and effective implementation in the region of the rights of access to environmental information, public participation in the environmental decision-making process and access to justice in environmental matters, […] contributing to the protection of the right of every person of present and future generations to live in a healthy environment and to sustainable development.”
[2] This is the direct English translation of the term in Law 70, “comunidades negras.” The text of the law (translated) defines Black communities as “the group of families of Afro-Colombian descent who possess their own culture, share a history, and have their own traditions and customs…who display and conserve awareness of [their] identity that distinguishes them from other ethnic groups.” More recently, in English, the term “Afro-Colombian” is more common and so is used below outside of the specific context of Law 70. In Spanish the acronym “NARP” is used, encompassing the diverse identities of Black (in Spanish, “negra"), Afro-Colombian, Raizal, and Palanquero.