Rejoinder of Colombia | INTERNATIONAL COURT OF JUSTICE

Document Number

17564

Document Type

written_pleading

Case

138 - Aerial Herbicide Spraying (Ecuador v. Colombia)

Date of the Document

Wed, 02/01/2012 - 12:00

Document File

17564.pdf

INTERNATIONAL COURT OF JUSTICE

____________________________________________

CASE CONCERNING

AERIAL HERBICIDE SPRAYING

(ECUADOR v. COLOMBIA)

REJOINDER OF THE

REPUBLIC OF COLOMBIA

VOLUME I

1 FEBRUARY 2012 TABLE OF CONTENTS

Chapter 1. INTRODUCTIONAND OVERVIEW

A. General Remarks ................................ 1

B. Colombia’s Fight Against Drugs .................... 5

C. Ecuador’s Request for a Court-Ordered Buffer Zone ... 15

D. Ecuador’s Memorial and Reply ................... 24

E. Concluding Remarks ............................ 26

F. Outline of Rejoinder ............................ 27

Chapter 2. ECUADOR’S ARGUMENTS BASED ON
THE ALLEGED TOXICITY OF THE SPRAY

MIXTUREAND ON DRIFT

A. Introduction ................................... 31

B. The Spray Mixture ............................. 32

(1) E cuador’s sElEctivE usE of thE documEntary

EvidEncE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33

(2) t hE composition of thE spray mixtu . . . . . . . . . .45

(3) t hEstatE dEpartmEnt rEpEatEdly cErtifiEd that
thE spray mixturE doEs not posE unrEasonablE
risks or advErsE EffEcts to humans or thE

EnvironmEnt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .79

(4) c onclusions on thE spray mixtur . . . . . . . . . . . . .83

iiiC. The Issue of Drift .............................. 85

(1) forEst canopy . . . . . . . . . . . . . . . . . . . . . . . . . . . .88

(2) a ircraft spEEd and hEight of spray rElEasE . . . . .95

(3) d roplEt sizE . . . . . . . . . . . . . . . . . . . . . . . . . . . . .128

(4) a pplication ratE . . . . . . . . . . . . . . . . . . . . . . . . . .132

(5) tEmpEraturE ,humidity and wind conditions . . . .138

(6) a llEgEd night-timE spraying . . . . . . . . . . . . . . . .150

(7) c onclusions on drift . . . . . . . . . . . . . . . . . . . . . .158

D. Conclusions .................................. 161

Chapter3. ECUADOR HAS NOT SUBSTANTIATED ITS
CLAIMS OF DAMAGE

A. Introduction .................................. 165

B. The Absence of Hard Evidence of the Damage
Alleged ..................................... 171

C. The Witness Evidence Relied upon by Ecuador is not
Credible ..................................... 177

(1) g EnEral assEssmEnt of thE witnEss statEmEnts .178

(2) Ecuador ’s approach to thE witnEss EvidEncE . . .203

(3) thE spray data falsifiEs thE allEgations of thE
witnEssEs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .220

D. Summary Assessment of the Scientific Evidence ..... 296

(1) thE assErtEd “ vulnErability” of thE EcosystEm
and bordEr populations in E cuador . . . . . . . . . . .297

iv (2) Ecuador ’s casE procEEds on thE basis of a
flawEd approach to risk managEmEnt . . . . . . . . .303

(3) Ecuador ’s casE procEEds on a flawEd approach
to modEling drift . . . . . . . . . . . . . . . . . . . . . . . . .307

(4) thE sciEntific EvidEncE dEmonstratEs thE lack

of significant toxicological EffEcts of thE
spray mixturE for humans or animals . . . . . . . . .310

(5) givEn thE location and mannEr in which it

was sprayEd thE spray mixturE could not havE
causEd thE harms allEgEd to plants . . . . . . . . . .332

E. OverallAppreciation of Ecuador’s Case on Harm .... 336

(1) allEgations vErsus E vidEncE . . . . . . . . . . . . . . .336

(2) thE issuE of causation . . . . . . . . . . . . . . . . . . . . .341

(3) puErto m Estanza . . . . . . . . . . . . . . . . . . . . . . . . .350

F. Conclusion .................................. 360

Chapter 4. LEGALISSUES

A. Introduction .................................. 363

B. EIAand the Environmental Management Plan ....... 364

(1) thE EnvironmEntal m anagEmEnt plan for
pEcig . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .366

(2) colombia ’s ExErcisE of duE diligEncE in

conducting thE program . . . . . . . . . . . . . . . . . . . .386

(3) Eia rEquirEmEnts in intErnational law and
thEir application . . . . . . . . . . . . . . . . . . . . . . . . .407

(4) conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . .418

vC. Ecuador’s Claims based on Violation of Territorial
Sovereignty .................................. 420

(1) E cuador ’s rEliancE on a panoply of irrElEvant

rulEs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .420

(2) t hE sourcE of obligation . . . . . . . . . . . . . . . . . . .424

(3) t hE aErial spraying program in no way

affEcts E cuador ’s tErritorial sovErEignty or
intEgrity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .427

D. Ecuador’s Claims based on Breach of International

Environmental Law ............................ 427

E. Ecuador’s Claims based on Human Rights and the
Rights of Indigenous Peoples ..................... 432

(1) introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . .432

(2) “t argEting ”: E cuador s incomprEhEnsion of
c olombia ’s casE . . . . . . . . . . . . . . . . . . . . . . . . . .435

(3) t hE tErritoriality of human rights obligations .436

(4) E cuador ’s argumEnt basEd on thE obligation
to “rEspEct and EnsurE ” . . . . . . . . . . . . . . . . . . .444

(5) E cuador ’s fact-frEE casE basEd on indigEnous

rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .445

f . Conclusions .................................. 450

Chapter 5. REMEDIALISSUES

A. Compensation ................................ 457

B. Other Claims by Ecuador ....................... 459

viSUMMARY

A. Introduction .................................. 473

B. Alleged Toxicity of the Spray Mixture and Drift .....475

C. Ecuador has not Substantiated its Claims of Damage .. 483

D. Legal Issues .................................. 490

E. Remedial Issues ............................... 497

SUBMISSIONS ................................... 499

APPENDIX ...................................... 501

Analysis of Ecuadorian Witness Statements as to Timing and
Location of Spraying andAlleged Effects

LIST OF ANNEXES
(VOLUMES II, III, IV, VAND VI) ................... 765

vii Chapter 1

INTRODUCTION AND OVERVIEW

A. General Remarks

1.1. In its Reply as in its Memorial , Ecuador has portrayed a
devastating image of the situation of its northern regions

bordering Colombia, allegedly as a result of the drift from aerial

spraying operations to eradicate illicit coca crops conducted by

Colombia on its own territory between 2000 and 2007.
same time , Ecuador’s Reply contains offensive language and

makes numerous accusations against Colombia. It is suggested

for example that Colombia failed to provide evidence regarding

the Program for the Eradication of Illicit Crops by Aerial
1
Spraying with Glyphosate and deliberately misrepresented the
facts, including alleged violation s of Ecuador’s sovereignty and

territorial integrity . Colombia vigorously rejects these

accusations.

1.2. In fact, Ecuador’s written pleadings are largely based on

misrepresentations and on witness statements prepared for the

purposes of this litigation.

selection of the documents obtained from the U
Department of State under its Freedom of Information Act

(“FOIA”) requests, Ecuador attempted to show in its Reply that

residues of the spray mixture used in the aerial spraying

1
Hereinafter also referred to as PECIG, for its Spanish acronym.

viii Chapter 1

INTRODUCTION AND OVERVIEW

A. General Remarks

1.1. In its Reply as in its Memorial , Ecuador has portrayed a
devastating image of the situation of its northern regions

bordering Colombia, allegedly as a result of the drift from aerial

spraying operations to eradicate illicit coca crops conducted by

Colombia on its own territory between 2000 and 2007. At the
same time , Ecuador’s Reply contains offensive language and

makes numerous accusations against Colombia. It is suggested

for example that Colombia failed to provide evidence regarding

the Program for the Eradication of Illicit Crops by Aerial
1
Spraying with Glyphosate and deliberately misrepresented the
facts, including alleged violation s of Ecuador’s sovereignty and

territorial integrity . Colombia vigorously rejects these

accusations.

1.2. In fact, Ecuador’s written pleadings are largely based on

misrepresentations and on witness statements prepared for the

purposes of this litigation. In particular, through a careful

selection of the documents obtained from the U nited States
Department of State under its Freedom of Information Act

(“FOIA”) requests, Ecuador attempted to show in its Reply that

residues of the spray mixture used in the aerial spraying

1
Hereinafter also referred to as PECIG, for its Spanish acronym.

1operations may have been deposited on its territory and ma y

have caused alleged adverse effects on human health and the

environment.

1.3. Ecuador seeks to use the spray flight data as evidence of

the fact that Colombia did not conform to its own operational
requirements and failed to minimize drift. This material is

employed in an attempt to corroborate the witness statements

produced with the Memorial, which remain , with all their

imperfections, the core element of Ecuador’s case.

1.4. Colombia requested from the United States’ Government
copies of the entire record fu rnished to Ecuador pursuant to its

FOIA requests and analysed the Reply in the light of all these

documents, with the collaboration of qualified scientists whose
2
expert reports are attached to this Rejoinder. There are several

observations to make with r egard to Ecuador’s treatment of the
material acquired under the FOIA requests.

1.5. First, as will be shown in Chapter 2, Ecuador’s

allegations as to the conduct of the program are not based on an

2 CR, Vol. II, Annexes: 1, Dr A.J. Hewitt, Ph.D., Response to Report
“Spray Drift Modeling of Conditions of Application for Coca Crops in
Colombia by D.K. Giles, Jan. 2011” , 1 Nov. 2011; 2, Dr A.J. Hewitt, Ph.D.,
Aerial Spray Drift Modeling of Plan Colombia Applicatio, 1 Nov. 2011;
3, Dr K.R. Solomon, Ph. D., Expert Report of Keith R. Solomon on Behalf of
Colombia, Nov. 2011; 4, Dr S. Dobson, OBE Ph.D., Response to scientific
papers in Annexes to Volume II of Ecuador’s Reply (201Dec. 2011; 5, A.
Tait, International Mapping Associates, Statistical Summary of Data for

Spray Events Within the Relevant Area Along the Border between Colombia
and Ecuador , Dec. 2011; 6, DrB.M. Evans, Ph.D., Expert Report by Dr
Barry M. Evans, Dec. 2011.

2operations may have been deposited on its territory and ma y

have caused alleged adverse effects on human health and the

environment.

1.3. Ecuador seeks to use the spray flight data as evidence of

the fact that Colombia did not conform to its own operational
requirements and failed to minimize drift. This material is

employed in an attempt to corroborate the witness statements

produced with the Memorial, which remain , with all their

imperfections, the core element of Ecuador’s case.

1.4. Colombia requested from the United States’ Government
copies of the entire record fu rnished to Ecuador pursuant to its

FOIA requests and analysed the Reply in the light of all these

documents, with the collaboration of qualified scientists whose
2
expert reports are attached to this Rejoinder. There are several

observations to make with r egard to Ecuador’s treatment of the
material acquired under the FOIA requests.

1.5. First, as will be shown in Chapter 2, Ecuador’s

allegations as to the conduct of the program are not based on an

Spray Events Within the Relevant Area Along the Border between Colombia
and Ecuador , Dec. 2011; 6, DrB.M. Evans, Ph.D., Expert Report by Dr
Barry M. Evans, Dec. 2011.1.9. Likewise, Ecuador claims that the human rights of

Ecuadorian nationals and indigenous communities were violated

as a result of the sprayings over illicit coca crops in Colombian

territory. However, quite aside from any legal considerations

(which will be addressed in Chapter 4 below), Ecuador’s claims
have not been established as a matter of fact and cannot be

reconciled with the scientific evidence which supports the

conclusion that the spraying mixture used in the program could

not possibly cause the adverse effects on the environment,

fauna, flora and human health that Ecuador complains about.

1.10. The fact of the matter is that the spray mixture does not

even remotely correspond to the lethal potion described by

Ecuador. Glyphosate has been studied extensively, perhaps

more than any other herbicide, and its properties are very well -

known. Glyphosate and glyphosate-based formulations are used
in gardens all over the world for weed control and in the most

eco-sensitive envir onments, to control invasive plants . I f

Ecuador (and its witnesses) a re to be believed and glyphosate

could really cause the kind of injury complained of, any harmful

effects would have been manifest by now. If glyphosate had

such a negative impact on the environment, it would have had
devastating effects for the soil fertility and crop yield of millions

of hectares of land throughout the planet. There would be a

substantial body of scientific evidence documenting such large

scale devastation. Glyphosate use would have been banned or

severely restricted. None of these consequences have been

41.9. Likewise, Ecuador claims that the human rights of

Ecuadorian nationals and indigenous communities were violated

as a result of the sprayings over illicit coca crops in Colombian

territory. However, quite aside from any legal considerations

(which will be addressed in Chapter 4 below), Ecuador’s claims
have not been established as a matter of fact and cannot be

reconciled with the scientific evidence which supports the

conclusion that the spraying mixture used in the program could

not possibly cause the adverse effects on the environment,

fauna, flora and human health that Ecuador complains about.

1.10. The fact of the matter is that the spray mixture does not

even remotely correspond to the lethal potion described by

Ecuador. Glyphosate has been studied extensively, perhaps

more than any other herbicide, and its properties are very well -

known. Glyphosate and glyphosate-based formulations are used
in gardens all over the world for weed control and in the most

eco-sensitive envir onments, to control invasive plants . I f

Ecuador (and its witnesses) a re to be believed and glyphosate

could really cause the kind of injury complained of, any harmful

effects would have been manifest by now. If glyphosate had

such a negative impact on the environment, it would have had
devastating effects for the soil fertility and crop yield of millions

of hectares of land throughout the planet. There would be a

substantial body of scientific evidence documenting such large

scale devastation. Glyphosate use would have been banned or

severely restricted. None of these consequences have been “The Security Council notes with concern the
increasing link, in some cases, between drug
trafficking and the financing of terrorism, including
through the use of proceeds derived from illicit

cultivation, production of and trafficking in narcotic
drugs and their precursors, as well as illegal arms
trafficking (…)

The Security Council encourages States to

strengthen international, regional and sub -regional
cooperation to counter drug -trafficking,
transnational organized crime, terrorism and
corruption... Through compliance with their

obligations under international law, including the
relevant resolutions of the Security Council, States
can help strengthen internati onal peace and
security.”4

1.13. The statement continued by referring to the relevant

international conventions, including the UN Convention Against

Illicit Traffic in Narcotic Drugs and Psychotropic Substances of

1988.

1.14. Colombia’s aerial spraying program must be seen in this
context, as a key component of a broader struggle against

terrorism and drug trafficking. The program is designed to

attack directly the supply of coca, thus decreasing the revenues

generated through drug trafficking. It must be stressed that the

program is a national one, not limited to border areas. Spraying

operations have been conducted in 23 of the 32 Colombian

provinces in exactly the same manner, and in compliance with

4 UN Security Council, “Statement by the President of the Security
Council”, S/PRST/2010/4, 24 February 2010, pp. 1- 2. Available at:
http://www.unic.or.jp/security_co/pdf/prst_2010_4.pdf (Last visited 10 Nov.
2011)

6 “The Security Council notes with concern the
increasing link, in some cases, between drug
trafficking and the financing of terrorism, including
through the use of proceeds derived from illicit

cultivation, production of and trafficking in narcotic
drugs and their precursors, as well as illegal arms
trafficking (…)

The Security Council encourages States to

strengthen international, regional and sub -regional
cooperation to counter drug -trafficking,
transnational organized crime, terrorism and
corruption... Through compliance with their

obligations under international law, including the
relevant resolutions of the Security Council, States
can help strengthen internati onal peace and
security.”4

1.13. The statement continued by referring to the relevant

international conventions, including the UN Convention Against

Illicit Traffic in Narcotic Drugs and Psychotropic Substances of

1988.

1.14. Colombia’s aerial spraying program must be seen in this
context, as a key component of a broader struggle against

terrorism and drug trafficking. The program is designed to

attack directly the supply of coca, thus decreasing the revenues

generated through drug trafficking. It must be stressed that the

program is a national one, not limited to border areas. Spraying

operations have been conducted in 23 of the 32 Colombian

provinces in exactly the same manner, and in compliance with

affected the country’s productivity and promoted arms

trafficking, violence and corruption, resulting in enormous

damage to Colombia’s society, economy and environment.

1.17. Ecuador asserts that the aerial fumigations “have been
6
ineffective as a means of stemming the cultivation of coca.” A

review of the statistical data shows that this is untrue.
According to the 2011 Report of the United Nations Office on

Drugs and Crime (“UNODC”), during the last ten years,

Colombia succeeded in reducing the overall area under coca

cultivation by 65.1%, moving from 163,300 hectares in 2000 to

57,000 in 2010. 7 As a result , while in 2000 73. 8% of all the

coca cultivation existing in the world w as located in Colombia,

in 2010 this percentage decreased to 38 .2%. This successful

campaign could certainly not have been accomplished without

the aerial sprayings.

1.18. In a report issued in 2010 entitled The Globalization of

Crime: a Transnational Organized Crime Threat Assessment ,

UNODC commended Colombia as “the country which has made

most progress over the last few years in curbin g the threats to

national and international security emerging from drug

6
7 EM, para. 2.54.
UNODC, World Drug Report 2011, p. 99. Available at:
http://www.unodc.org/documents/data -and-analysis/WDR2011/
World_Drug_Report_2011_ebook.pdf?bcsi_scan_1DAA8B70D81D7BD8=q
BC4TDYO8vj0PlYZ1kLMkcaGuiwFAAAA3DOsAw==&bcsi_scan_filena
me=World_Drug_Report_2011_ebook.pdf (Last visited 10 Nov. 2011)

8groups that have sought to destabilize Colombian institutions,

affected the country’s productivity and promoted arms

trafficking, violence and corruption, resulting in enormous

damage to Colombia’s society, economy and environment.

1.17. Ecuador asserts that the aerial fumigations “have been
6
ineffective as a means of stemming the cultivation of coca.” A

review of the statistical data shows that this is untrue.
According to the 2011 Report of the United Nations Office on

Drugs and Crime (“UNODC”), during the last ten years,

Colombia succeeded in reducing the overall area under coca

cultivation by 65.1%, moving from 163,300 hectares in 2000 to

57,000 in 2010. 7 As a result , while in 2000 73. 8% of all the

coca cultivation existing in the world w as located in Colombia,

in 2010 this percentage decreased to 38 .2%. This successful

campaign could certainly not have been accomplished without

the aerial sprayings.

1.18. In a report issued in 2010 entitled The Globalization of

Crime: a Transnational Organized Crime Threat Assessment ,

UNODC commended Colombia as “the country which has made

most progress over the last few years in curbin g the threats to

national and international security emerging from drug

Policy, R. Gil Kerlikowske, recently declared:

“Thanks in large part to Colombia’s relentless
eradication campaigns, for example, the production
of pure cocaine fell from an estimated 700 metric
tons potential pure cocaine production in 2001 to
only 270 metric tons in 2009 – a 61 percent drop.” 12

1.21. The success of the program has also affected the finances

of the narco -terrorist groups located in Colombia, as is

confirmed by a recognized authority on Latin-American policy,
Dr Gabriel Marcella:

“The success of the aerial eradication operations in
depriving the narco- terrorists of funding has been
confirmed by the FARC itself. Among the computer
files seized during the Colombian military raid of

the camp of FARC commander Raúl Reyes on
March 1, 2008, was an email in which Reyes
bemoaned the impact of the spraying: ‘In the area of
finances, we have been unable to do a big deal, we

have only done some small things, and the situation
is difficult because of the eradication and
fumigation.’ Other captured records reflect the
FARC’s efforts to stop the spraying operations by
raising concerns about alleged environmental

effects. In one document, Raúl Reyes discussed a
message from Ecuado rian Minister of National
Security, Gustavo Larrea, in which the Ecuadorian
minister was believed to be seeking to foster
relations with the FARC in part by agreeing that

Ecuador ‘will sue the state and government of
Colombia before the International Court for the
damages the aerial spraying has caused.’ In another

12 Embassy of the United States in Colombia, Press Releases 2011, 18
Jan. 2011, “Remarks by White House Drug Policy Director, Gil Kerlikowske
to Mentor Foundation Colombia in Bogotá, Colombia” . Available at:

http://bogota.usembassy.gov/pr_001_18112011.html (Last visited 10 Nov.
2011)

101.20. The Director of the US Office of National Drug Control

Policy, R. Gil Kerlikowske, recently declared:

1.21. The success of the program has also affected the finances

of the narco -terrorist groups located in Colombia, as is

confirmed by a recognized authority on Latin-American policy,
Dr Gabriel Marcella:

the camp of FARC commander Raúl Reyes on
March 1, 2008, was an email in which Reyes
bemoaned the impact of the spraying: ‘In the area of
finances, we have been unable to do a big deal, we

Ecuador ‘will sue the state and government of
Colombia before the International Court for the
damages the aerial spraying has caused.’ In another

http://bogota.usembassy.gov/pr_001_18112011.html (Last visited 10 Nov.
2011)1.24. These efforts would be in vain without a joint concerted

effort with other countries and regions; a fortiori in the case of a

bordering country. All the links in the criminal chain must be

fought: illicit crops, drug processing, clandestine laboratories,

transport, distribution, consumption, money laundering, etc.

1.25. As stated in the Counter-Memorial, the cultivation of

illicit crops and their transformation into processed drugs are the
worst cause of environmental degradation in Colombia. This

damage is caused by the slashing of forests to plant coca crops

and the pollution generated by its processing. Between 2000

and 2010, 251,370 hectares of forest were cleared to plant coca,

of which 121,026 hectares were primary forests of high

complexity, bio-diversity and richness. To refrain from taking

all measures necessary to counter illicit crops would have

involved major neglect of Colombia’s responsibilities as one of

the world’s most mega-diverse countries.

1.26. It is also important to recall that “the main concentration

of coca cultivation is associated to the Putumayo River, mainly

in zones of expansion of the area of influence of coca
cultivation…” 15 This area, as can be verified in the 2010

UNODC Coca Survey, corresponds precisely to the area

bordering Ecuador. 16

15 CR, Vol. V I, Annex 60: UNODC, Colombia Coca Cultivation
Survey 2010, June, 2011, p. 31.
16 Ibid., p. 30.

121.24. These efforts would be in vain without a joint concerted

effort with other countries and regions; a fortiori in the case of a

bordering country. All the links in the criminal chain must be

fought: illicit crops, drug processing, clandestine laboratories,

transport, distribution, consumption, money laundering, etc.

1.25. As stated in the Counter-Memorial, the cultivation of

illicit crops and their transformation into processed drugs are the
worst cause of environmental degradation in Colombia. This

damage is caused by the slashing of forests to plant coca crops

and the pollution generated by its processing. Between 2000

and 2010, 251,370 hectares of forest were cleared to plant coca,

of which 121,026 hectares were primary forests of high

complexity, bio-diversity and richness. To refrain from taking

all measures necessary to counter illicit crops would have

involved major neglect of Colombia’s responsibilities as one of

the world’s most mega-diverse countries.

1.26. It is also important to recall that “the main concentration

of coca cultivation is associated to the Putumayo River, mainly

in zones of expansion of the area of influence of coca
cultivation…” 15 This area, as can be verified in the 2010

UNODC Coca Survey, corresponds precisely to the area

bordering Ecuador. 16

15 CR, Vol. V I, Annex 60: UNODC, Colombia Coca Cultivation
Survey 2010, June, 2011, p. 31.
16 Ibid., p. 30.Figure 1-2 Coca cultivation density in the Putumayo-Caquetá
18
region, 2010.

18
CR, Vol. VI, Annex 60: UNODC, Colombia Coca Cultivation
Survey 2010, June, 2011, p. 30.

14Figure 1-2 Coca cultivation density in the Putumayo-Caquetá
18
region, 2010.

18
CR, Vol. VI, Annex 60: UNODC, Colombia Coca Cultivation
Survey 2010, June, 2011, p. 30.issue at a few meters (or, at most, at tens of metres) downwind

of the spraying sites. It follows that the compulsory suspension
of any sprayings within 10 kilometres from the common

boundary is unnecessary, irrelevant and unacceptable. In this

regard, it is important to recall certain points already discussed

in the Counter-Memorial.

1.30. The border area between Colombia and Ecuador is

divided into three sectors: the Pacific, the Amazonian and the
Andean. The aerial sprayings have taken place only in the first

two sectors since the third, the Andean sector, which is also the

most heavily populate d, is not affected by the cultivation of
illicit coca crops. It should also be noted that the sprayings

carried out in Colombian territory in the first two sectors of the

border area cover only 140.13 kilometres of the 717 kilometres

that make up the tota l length of the boundary, i.e. they only
concern 19.55% of the boundary, as shown in the following

figure:

16issue at a few meters (or, at most, at tens of metres) downwind

of the spraying sites. It follows that the compulsory suspension

of any sprayings within 10 kilometres from the common

boundary is unnecessary, irrelevant and unacceptable. In this

regard, it is important to recall certain points already discussed

in the Counter-Memorial.
76°0'W

1.30. The border area between Colombia and Ecuador is

divided into three sectors: the Pacific, the Amazonian and the

Andean. The aerial sprayings have taken place only in the first

two sectors since the third, the Andean sector, which is also the

77°0'W
most heavily populate d, is not affected by the cultivation of

illicit coca crops. It should also be noted that the sprayings

carried out in Colombian territory in the first two sectors of the

border area cover only 140.13 kilometres of the 717 kilometres

that make up the tota l length of the boundary, i.e. they only

concern 19.55% of the boundary, as shown in the following

78°0'W
figure:

79°0'W

Figure 1-31.31. For the most part, Ecuador’s complaints arose from spray
events that are alleged to have taken place in the Ecuadorian

province of Sucumbíos, which adjoins Colombia via the

Putumayo River, which has a width of between 600 and 1,500

metres in the sector, and through the San Miguel River, shown

in Figure 1-4 below, which is on average 350 metres wide:

Figure 1-4 San Miguel River

1.32. Indicative of the misrepresentations of the facts on which
Ecuador relies is the manner in which Ecuador, which should be

well acquainted with the region since it fought for over a century

to uphold its rights as an “Amazonian” nation, now asserts

before the Court that, “[n]one of the border rivers are very wide;

the distance between the Ecuadorian and Colombian banks can

181.31. For the most part, Ecuador’s complaints arose from spray
events that are alleged to have taken place in the Ecuadorian

province of Sucumbíos, which adjoins Colombia via the

Putumayo River, which has a width of between 600 and 1,500

metres in the sector, and through the San Miguel River, shown

in Figure 1-4 below, which is on average 350 metres wide:

Figure 1-4 San Miguel River

1.32. Indicative of the misrepresentations of the facts on which
Ecuador relies is the manner in which Ecuador, which should be

well acquainted with the region since it fought for over a century

to uphold its rights as an “Amazonian” nation, now asserts

before the Court that, “[n]one of the border rivers are very wide;

the distance between the Ecuadorian and Colombian banks canpolice forces, build laboratories to process cocaine and establish
25
deposits for arms.

1.34. The “Comisión de Transparencia y Verdad ‘Caso

Angostura’” [Commission on Transparency and Truth for the

Angostura Case] set up by the Ecuadorian Government in order

to verify the situation existing in its territory bordering

Colombia noted the following in a report of December 2009,

with regard to the Putumayo-San Miguel sector:

“For example, nearby the geodesic line that
connects the Putumayo and San Miguel Rivers

(border between the two countries in the Sucumbíos
region), drug processing laboratories, permanent
and mobile camps, weapons and fuel storage
facilities have been established. Along that border,

42 illegal crosses can be found.”

“The Sucumbíos Province is used as an operations

center by the FARC’s 48 and 32 fronts. Front 29 has
influence in Carchi and Esmeraldas. Whereas in
Esmeraldas (Ecuadorian province in the west of the
common border) other groups emerging from

paramilitarism such as Los Rastrojos, Nueva
Generación, Las Aguilas Negras and Los Zorros

25
http://www.elmercurio.com.ec/291201-policia-de-ecuador-descubre-
laboratorio-de-cocaina-en-costa-del-pacifico.html (Last visited 10 Nov.
2011);
http://www.eluniversal.com.co/cartagena/nacional/ecuador-encuentra-
cultivo-de-coca-en-frontera-con-colombia-21838 (Last visited 10 Nov. 2011)
http://www.eluniversal.com.mx/internacional/70082.html (Last visited 10
Nov. 2011);
http://www.eltiempo.com/archivo/documento/CMS-4848236 (Last visited 10
Nov. 2011);
http://www.eluniversal.com.co/cartagena/internacional/hallan-en-ecuador-
laboratorio-de-procesamiento-de-droga-36576 (Last visited 10 Nov. 2011);
http://www.eluniversal.com.co/cartagena/internacional/decomisan-385-kil…-
de-marihuana-en-norte-de-ecuador-45858 (Last visited 10 Nov. 2011).

20police forces, build laboratories to process cocaine and establish
25
deposits for arms.

1.34. The “Comisión de Transparencia y Verdad ‘Caso

Angostura’” [Commission on Transparency and Truth for the

Angostura Case] set up by the Ecuadorian Government in order

to verify the situation existing in its territory bordering

Colombia noted the following in a report of December 2009,

with regard to the Putumayo-San Miguel sector:

“For example, nearby the geodesic line that
connects the Putumayo and San Miguel Rivers

(border between the two countries in the Sucumbíos
region), drug processing laboratories, permanent
and mobile camps, weapons and fuel storage
facilities have been established. Along that border,

42 illegal crosses can be found.”

“The Sucumbíos Province is used as an operations

center by the FARC’s 48 and 32 fronts. Front 29 has
influence in Carchi and Esmeraldas. Whereas in
Esmeraldas (Ecuadorian province in the west of the
common border) other groups emerging from

paramilitarism such as Los Rastrojos, Nueva
Generación, Las Aguilas Negras and Los Zorros

and by order of the Court.

1.37. On 25 June 2005 the group “Frente 49” of the “FARC”,

situated in Ecuadorian territory, attacked the Colombian military

base at Teteyé, on the Putumayo River, killing l9 Colombian

soldiers, kidnapping one soldier and leaving 11 more gravely
28
injured. In spite of the gravity of this incident – and
notwithstanding the fact that drug trafficking is the main source

of financing for the FARC – a month later Ecuador reiterated its

request to establish a no-spraying zone of 10 kilometres parallel

to the boundary.

1.38. Nevertheless, in a spirit of friendliness and cooperation,

at the end of 2005 the Colombian Government offered – in a

gesture that was heavily criticized from many quarters in

Colombia – to suspend temporarily the sprayings in the zone up

to 10 kilometres parallel to the border with Ecuador.

1.39. Colombia’s gesture provoked an immediate and

significant increase in the cultivation of illicit coca crops in the

area and resulted in growing attacks by armed groups from

Ecuadorian territory in the area in support of the activities
29
connected with drug trafficking.

28
Ecuador Inmediato.Com, “Uribe Demanda a Ecuador por ataque
de las FARC”, 27 June 2006. Available at:
http://www.ecuadorinmediato.com/Noticias/news_user_view/ecuadorinmedia
to_noticias--16255 (Last visited 10 Nov. 2011)
29 On 21 February 2006, an attack took place in the locality of San
Joaquín on the Putumayo River; on 1stMarch 2006, an attack was launched

22and insists further that this be done indefinitely, unconditionally

and by order of the Court.

1.37. On 25 June 2005 the group “Frente 49” of the “FARC”,

situated in Ecuadorian territory, attacked the Colombian military

base at Teteyé, on the Putumayo River, killing l9 Colombian

soldiers, kidnapping one soldier and leaving 11 more gravely
28
injured. In spite of the gravity of this incident – and
notwithstanding the fact that drug trafficking is the main source

of financing for the FARC – a month later Ecuador reiterated its

request to establish a no-spraying zone of 10 kilometres parallel

to the boundary.

1.38. Nevertheless, in a spirit of friendliness and cooperation,

at the end of 2005 the Colombian Government offered – in a

gesture that was heavily criticized from many quarters in

Colombia – to suspend temporarily the sprayings in the zone up

to 10 kilometres parallel to the border with Ecuador.

1.39. Colombia’s gesture provoked an immediate and

significant increase in the cultivation of illicit coca crops in the

area and resulted in growing attacks by armed groups from

Ecuadorian territory in the area in support of the activities
29
connected with drug trafficking.

drug problem.

1.41. Today, Colombia is a much safer place and it s economic

and social situation has considerably improved. According to the

UNODC, world cocaine production has shown a marked
downward trend, due to the decline in production in Colombia. 31

Banning aerial sprayings altogether in a strip of territory along

the Colombia-Ecuador border would set the clock back to a time

when terrorist groups and the drug trade prospered. It is an

unacceptable option for Colombia, violative of its sovereignty;

but its negative impacts would be felt well beyond the South
American continent. Such a state of affairs would only benefit

terrorist groups who will be able to resume their oper ations with

profits generated by drug cultivation and trafficking. Colombia

will return to this point in Chapter 5.

D. Ecuador’s Memorial and Reply

1.42. While Ecuador’s position has not changed significantly
from the case laid out in the Memorial , its Reply shows a

marked difference of degree in the overall approach to the main

issues underlying its claims. On the one hand, Ecuador se ts

great stock in t he material it obtained from the US Department

of State pursuant to its FOIA requests and heavily relies on it in
an attempt to give credibility to its witness evidence of human

and environmental harm. On the other hand, Ecuador has given

up any direct su ggestion that the sprayings have caused deaths,

31
UNODC, World Drug Report 2011, p. 37.

24for all the illegal and violent activities connected to the world